Lawsuit prompts Dallas’ repeal of plastic bag fee (TX)

Rather than likely risk losing a lawsuit over its mandatory 5-cent fee for single-use bags, the Dallas City Council voted 10-4 on Wednesday to repeal the measure. Effective Monday, shoppers will no longer be charged a separate plastic bag fee.

The policy, in effect since Jan. 1, was challenged in early May with the filing of a lawsuit by plastic bag manufacturers.

“The plastic bag manufacturing and recycling industry has invested millions in new technologies and education programs to enhance and promote the sustainability of this 100 percent recyclable product,” Hilex Poly Co. Senior Vice-President of Sustainability Mark Daniels said in a statement at the time of the filing.

“Bag bans, taxes or fees do not have a meaningful impact on reducing litter or waste, and, in the state of Texas, the law is clear that a city cannot ban or impose a fee on plastic bags. Dallas is in direct violation of Texas law.”

In 2014 while serving as Texas Attorney General, current Gov. Greg Abbott issued an opinion based on the Texas Health and Safety Code which states:

A local government or other political subdivision may not adopt an ordinance, rule, or regulation to:

(1) prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law; [or]

(3) assess a fee or deposit on the sale or use of a container or package.

“A court would likely conclude that a city ordinance prohibiting or restricting single-use plastic bags is prohibited by subsection 361.0961(a)(l) of the Health and Safety Code if the city adopted the ordinance for solid waste management purposes,” Abbott concluded.

Dallas’ litter problem was the impetus for the ordinance that was unpopular with both consumers and retailers. An April poll conducted by The Dallas Morning News found half of respondents not liking the measure. Retailers, meanwhile, found the regulations confusing and containing burdensome requirements not found in similar municipal ordinances.

Passed in March 2014, the bag fee was a compromise after proponents first lobbied for an outright ban.  A ban was again proposed at Wednesday’s meeting, but failed in a 9-6 vote.

During its five months, bag fees generated $580,000 in city revenue. Mayor Mike Rawlings, however, expressed concern over the costs it also created saying he was “unbelievably disappointed” upon learning seven city employees were reassigned from other duties to deal with bag ordinance enforcement.

While the bag fee is dead for now, the June 22 swearing in of six new council members could revive the larger issue. Council member Philip Kingston, one of those voting against the bag repeal, told The Morning News “he thought a bag vote would go differently three weeks from now.” While future interest levels are unknown, a request by five council members could prompt a revisiting.

Lou Ann Anderson is an information activist. As a contributor at Watchdog Wire Arena, Raging Elephants Radio and Examiner Austin, she writes and speaks on a variety of public policy topics. Lou Ann is the creator and online producer at Estate of Denial®, a website that addresses probate abuse via wills, trusts, guardianships and powers of attorney as well as other taxpayer advocacy issues.

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