Chloe Knue, Associate Member, University of Cincinnati Law Review
Kroger has promised to trade in its famous brown plastic bags for something green by the year 2025. Now, the Cincinnati City Council is seeking to pass a new regulation that would speed up the timeline to 2021 and broaden the impact beyond Kroger. If successful, many stores will no longer be able to provide plastic bags for check-out or take-out. Instead, people will be expected to bring their own environmentally-friendly reusable bag or pay a 5¢ fee for a reusable or paper bag.
Although this change may come as a culture-shock to Cincinnatians, other cities have beaten Cincinnati to the punch. According to Cincinnati City Council Member Chris Seelbach in an interview with Cincinnati Public Radio, “similar bans have been enacted in nearly 400 cities across the country . . ..” National leaders, including leaders of cities in California, pioneered this type of legislation for the purpose of decreasing litter and pollution.
Despite certain environmental benefits, this proposal does not come without opposition. The Ohio House and Senate have introduced bills to block cities from banning plastic bags. If passed, the plastic bag bans in two Columbus municipalities would be overturned and Cincinnati estopped from going any further. Section II summarizes California case law that developed in response to local plastic bag bans before a state-wide ban was passed in 2016. These cases highlight the arguments made by competing advocates. Section III argues that while the City Council’s proposal represents a huge step in the right direction, the destination should be exclusive reliance on reusable bags. Section IV concludes with a note about the long-term health of our planet and makes a prediction about another potential plastic ban.
This section will discuss three California cases. Each case involves the same plaintiff—the Save the Plastic Bag Coalition (“the Coalition”)—that filed suit against the city of Manhattan Beach, Marin County, and San Francisco. The Coalition argued that the local governments failed to comply with the California Environmental Quality Act (“CEQA”) when instituting the plastic bag bans.
The “CEQA and the Guidelines implementing it provide for a three-step process.” The first question is relatively simple, dealing with when the Act applies. Government bodies must ask: Does this regulation constitute an environmental project? A project, as defined by the Act, includes anything that impacts the environmental, directly or indirectly. Things get much stickier under prongs two and three. Prong two asks: Does a categorical exemption apply or is there no significant impact on the environment? The state legislature created categorical exemptions as per se rules; when an exemption applies, that means “‘the project has no significant effect on the environment[,]’” and the government can go forward with its regulation. “‘If the project is not exempt, the [government] agency must determine whether the project may have a significant effect on the environment.’” If not, the inquiry stops there, and the government may proceed. “‘Otherwise, [if there is a significant impact on the environment,] the agency must proceed to the third step, which entails preparation of an [EIR] . . .’” The government does not want to end up in prong three. EIRs are presumably time consuming and expensive.
Prong two is litigated in the cases that follow. But first, a brief discussion about state “environmental review processes” is warranted. Sixteen states have legislation like the CEQA. Some states, like California, require the state and local governments to comply with the Act. Other states, like Indiana, only impose requirements on the state government. Ohio has no environmental review procedure. Nonetheless, the overarching policy question is relevant in all states: Does a plastic bag ban significantly harm the environment?
In Manhattan Beach, the City proposed a plastic bag ban. The two replacement options were reusable and paper bags. The Coalition threatened litigation. It argued that an EIR was necessary because paper bags are terrible for the environment. This contention carried merit. According to the City’s own report, “[m]ore energy is needed to manufacture and distribute paper bags, and more wastewater is produced in their manufacture and recycling.” Despite these findings, the City had legitimate reasons for pressing forward with the regulation. It sought to reduce plastic waste and micro-plastic pollution. It also planned to use recycled material for the paper bags. Moreover, the City hoped that paper bags would be utilized in modest quantities. Not only are paper bags larger and stronger than plastic bags, but the overarching goal of this regulation was for people to switch to reusable bags. The regulation passed in 2008, and the Coalition subsequently filed suit. The Supreme Court of California found that the City had complied with the CEQA, stating that “it is plain the city acted within its discretion when it determined that its ban on plastic bags would have no significant effect on the environment.” The court based its holding partly on the fact that Manhattan Beach was a small city.
The County of Marin court reached the same conclusion based on two categorical exemptions. There was per se no significant impact because the regulation was intended to protect (1) the environment, and (2) natural resources. The facts were nearly identical to the previous case. However, the County likely saw the writing on the wall post-Manhattan Beach and wanted to do more. Thus, “[t]o discourage consumers from simply switching from plastic to paper, the county also proposed imposing a fee for single-use paper.” A 5¢ fee was instituted for paper bags. It also investigated the many harmful environmental effects of plastic bags. Notably, “plastic bags . . . take 500 years to decompose . . .” and “county residents use up to 138 million single-use bags each year that end up in the waste stream.” The County also tried to emphasize the monetary impact of plastic waste. “According to one estimate, California residents pa[id] up to $200 per household annually in taxes and fees to clean up waste associated with single-use bags.” Finally, the County relied on a plastic bag ban, coupled with a fee for paper bags, that had been successfully implemented in Washington D.C. As a result of the regulation, D.C. had been able to reduce reliance on all single-use bags, including paper bags.
The Coalition made two persuasive arguments. First, it tried to distinguish the case from Manhattan Beach. The Coalition tried to capitalize on the language in Manhattan Beach emphasizing the city’s small size. It argued that an EIR was necessary because Marin County was much larger than Manhattan Beach. The court disagreed. According to the court’s reasoning, Manhattan Beach did not establish a bright-line rule that larger cities had to conduct an EIR. Second, the “[p]laintiff contend[ed] the county [was] trying to create an enormous loophole in the CEQA by allowing cities and counties to adopt ordinances they deem[ed] to be ‘green’ or ‘environmentally protective’ without conducting any form of CEQA analysis.” Once again, the court was unconvinced. The court noted the CEQA’s two safeguards. There “must be . . . substantial evidence to support the conclusion that the project fell within the exemption[,]” and “[the government] still [may] ha[ve] to defend against claims that the exemption is subject to an exception.”
In City and County of San Francisco, the Coalition argued that an exception to the Class 7 and 8 exemptions applied. It advocated for the “unusual circumstances” exception. “‘[W]hether a circumstance is ‘unusual’ is judged relative to the typical circumstances related to an otherwise typically exempt project.’” According to the Coalition, the situation was atypical for two reasons. First, it pointed out that San Francisco is a major commuter city. It predicted that many commuters would not rely on reusable bags and, instead, would simply accept the 5¢ fee for a paper bag. The court brushed this argument aside stating that there was no evidence that commuters would act this way. “The Coalition’s second argument is that ‘[p]lastic bag bans are unusual because, while they purport to protect the environment, paper and compostable bags and underused reusable bags are worse for the environment.’” The opinion went back to the Supreme Court’s reasoning in Manhattan Beach. These cities, though they may range in size, are not going to have any geographically significant impact from slightly increased paper bag use. The Coalition fell to 0-3.
Should the city of Cincinnati ban plastic bags? The answer is yes. Although Cincinnati has unique concerns and constituents, a plastic bag ban is prudent for many of the same reasons discussed in the California cases. The proposed regulation will: (1) have a positive impact on the environment; (2) elevate Cincinnati’s status nationwide; (3) support business; and (4) provide several practical benefits.
First and foremost, this regulation is necessary to protect the environment. For the reasons detailed above, the average person should be incredibly concerned about plastic pollution. Not only does plastic take more than five lifetimes to decompose, but micro-plastics are lurking, undetected, in our drinking water. It is ineffective for these bans to be sprinkled, inconsistently, throughout the country. Water does not remain isolated in D.C. or San Francisco; Cincinnati’s water is everyone’s water. Therefore, Cincinnati has an important role to play in decreasing plastic pollution, and this ban is a relatively simple way to fulfill that obligation.
The Coalition did not contest the need to protect the environment. Rather, it argued that banning plastic bags and placing a 5¢ fee on paper bags is counterproductive. There is no denying that this was a legitimate argument. However, the key takeaway from the city’s proposal is this: we need to reduce our reliance on all single-use bags. Paper bags should not be thought of as a mere replacement. Instead, they should be utilized in sparing quantities. Cincinnati, like many other cities, has made a policy choice to put a fee on paper rather than plastic bags. Although both bags are terrible for the environment, plastic is very litter-prone and paper bags are more durable. Thus, paper bags are arguably the lesser of the two evils.
Aside from the environmental rationale, there are other pressing reasons for banning plastic bags—like national respect. If passed, Cincinnati would join the other 400 U.S. Cities that have enacted the ban. Additionally, Kroger, Cincinnati’s most popular grocery store, already intends to hold itself to this standard by 2025. Why prolong the inevitable? Although Cincinnati has its own identity, keeping pace with the other major cities is consistent with Cincinnati’s goals. The city is in a transition period that is gaining momentum. Good things have happened and continue to happen in Southwest Ohio. For instance, last year Kroger erected a mega-store in Over-the-Rhine, and FC Cincinnati’s new stadium is currently in the works. The time is right for a plastic bag ban. It would be a great way for Cincinnati to position itself alongside the nation’s leaders and keep the city clean just in time for increased tourism.
Despite what some legislators in the Ohio House and Senate are reporting, it is possible to think about this regulation as a pro-business policy. All businesses–particularly small businesses—want to cut costs wherever they can. Single-use plastic bags cost money, and Cincinnatians use a lot of them. Think about how many plastic bags leave Kroger stores every day. At present, consumers expect stores to provide them with something to transport their purchased goods. Thus, stores feel compelled to satisfy this expectation. But what if the city took the burden off businesses? This proposal would change the current dynamic between store owners and consumers. Consumers are capable of developing new habits, like picking up take-out with a reusable bag. Although there would be some adjustment period, Cincinnati residents would quickly recognize the practical benefits of this regulation.
The challenge is all too familiar. Is it possible to carry 20 plastic bags into the house in a single trip? It involves weighing oneself down with ten bags on each arm which is unnecessary and inconvenient. Reusable bags are significantly bigger and stronger. One or two bags, as opposed to 20, would make it so much easier to go from cart to car to house.
Additionally, how many plastic Kroger bags are at your house right now stuffed in a drawer or the back of your pantry? These plastic bags are a major source of clutter and disorganization. Yet, most of us feel environmentally irresponsible just throwing them away. While some lifestyle changes are disruptive, a plastic bag ban would actually simplify our daily lives in more ways than one.
Cincinnati should ban plastic bags. This regulation is beneficial to the interested parties, environment, and public. Although humans are resistant to change by nature, the long-term health of our planet depends on it. We should all be concerned about pollution, and plastic bags are a major pollutant. In Marin County, the court noted the county’s contribution to the presence of 138 million plastic bags in the water supply per year. That is an astonishing figure. And we do not yet know the extent of what this wide-spread plastic pollution is doing to the environment or our bodies. However, there is no question that it is unnatural and causing harm. A plastic bag ban is an easy way for Cincinnati to move toward greener pastures and join a movement that is bigger than Southwest Ohio.
The City Council is gearing up to vote on the issue. If the regulation passes, other plastic bans may not be far behind. For instance, California has already implemented restrictions on the use of plastic straws. And environmental initiatives continue to grow in popularity. Starbucks, for example, is no longer offering plastic straws. Thus, the time may be right for Cincinnatians to begin to transition away from as many single-use items as possible. Soon we may live in a city where consumers instinctively show up to the grocery store with a reusable bag in their car and put their mouth right up to the glass.
 Merrit Kennedy, https://www.npr.org/2018/08/23/641215873/attention-shoppers-kroger-says-it-is-phasing-out-plastic-bags, NPR (Aug. 23, 2018) (“One of the largest supermarket companies in the U.S. has announced it is phasing out single-use plastic bags in an effort to reduce plastic waste.”); see also Jay Hanselman, https://www.wvxu.org/post/cincinnati-could-soon-ban-single-use-plastic-bags#stream/0, Cincinnati Public Radio (March 9, 2020).
 Hanselman, supra note 1 (Chris Seelbach, City Council Member, discusses the proposal).
 Id. (“Seelbach said stores that sell food, including restaurants, will not be allowed to use these bags starting Jan. 1, 2021, if City Council approves the ordinance.”).
 Id. (quoting City Council Member Seelbach).
 Id. (citing City Council Member Seelbach).
 Save the Plastic Bag Coal. v. City of Manhattan Beach, 254 P.3d 1005, 1008-1010 (Cal. 2011) (legislation passed in 2008); Save the Plastic Bag Coal. v. County of Marin, 218 Cal. App. 4th 2009, 159 Cal. Rptr. 3d 763, at* 2 (2013) (legislation passed in 2011); Save the Plastic Bag Coal v. City and County of San Francisco, 222 Cal. App. 4th 863, 166 Cal. Rptr. 3d 253 (2013), at* 2-3 (legislation passed in 2007).
 City of Manhattan Beach, 254 P.3d at 1008; County of Marin, 159 Cal. Rptr. at* 3; City and County of San Francisco, 166 Cal. Rptr. at* 3-4.
 Karen Kasler, https://radio.wosu.org/post/local-officials-make-plea-home-rule-plastic-bag-bans#stream/0, WOSU Public Media (Dec. 4, 2019) (“State senators considering one of two bills to ban local bans on plastic bags . . .”); Karen Kasler, https://radio.wosu.org/post/ohio-house-passes-ban-local-plastic-bag-bans#stream/0, WOSU Public Media (Dec. 12, 2019) (“the Ohio House has passed a bill banning local communities from restricting the use of plastic bags, sending it on to the Senate.”).
 Id. (“Three municipalities in Ohio, including the city of Bexley and Cuyahoga County, have passed ordinances that would charge retailers for distributing single-use plastics like grocery bags.”).
 City of Manhattan Beach, 254 P.3d at 1005; County of Marin, 159 Cal. Rptr at* 1; City and County of San Francisco, 166 Cal. Rptr. at* 1; https://www.calrecycle.ca.gov/plastics/carryoutbags.
 City of Manhattan Beach, 254 P.3d at* 1005; County of Marin, 159 Cal. Rptr. at* 1; City and County of San Francisco, 166 Cal. Rptr. at* 1.
 Id.; County of Marin, 159 Cal. Rptr. at* 6 (“We also point out something obvious from the caption of the case—the plaintiff in Manhattan Beach is the same as the plaintiff here.”)
 City of Manhattan Beach, 254 P.3d at 1008 (citing Public Resources Code, § 21000 et seq.); County of Marin, 159 Cal.Rptr. at* 1, 3 (citing Public Resources Code § 21000 et seq.); City and County of San Francisco, 166 Cal. Rptr. at* 3-4 (citing Public Resources Code § 21000 et seq.).
 County of Marin, 159 Cal. Rptr. at* 4-5; see also City and County of San Francisco, 166 Cal. Rptr. at* 4 (citing Tomlinson v. County of Alameda, (2012) 54 Cal.4th 281, 285-286, 142 Cal.Rptr.3d 539, 278 P.3d 803).
 County of Marin, 159 Cal. Rptr. at* 4 (“‘In the first step, the public agency must determine whether the proposed development is a ‘project,’ that is, ‘an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment’ undertaken, supported or approved by a public agency.’”) (quoting Tomlinson, 54 Cal.4th 281, at 286); see also City and County of San Francisco, 166 Cal. Rptr. at* 4 (quoting Tomlinson, 54 Cal.4th at 286).
 City of Manhattan Beach, 254 P.3d at 1008-10; County of Marin, 159 Cal. Rptr. at* 3; City and County of San Francisco, at* 4.
 County of Marin, 159 Cal. Rptr. at* 4-5 (“If the proposed activity is determined to be a project, the public agency must proceed to the second step of the process, which considers whether the project ‘is exempt from compliance with CEQA under either a statutory exemption [citation] or a categorical exemption set forth in the regulations [citations]. A categorically exempt project is not subject to CEQA, and no further environmental review is required [Citations.] If the project is not exempt, the agency must determine whether the project may have a significant effect on the environment. If the agency decides the project will not have such an effect, it must ‘adopt a negative declaration to that effect.’ [Citations.]”) (quoting Tomlinson, 54 Cal.4th at 286); see also City and County of San Francisco, 166 Cal. Rptr. at* 4 (quoting Tomlinson, 54 Cal.4th at 286).
 County of Marin, 159 Cal. Rptr. at* 5 (quoting Davidon Homes v. City of San Jose (1997) 64 Cal.App.4th 106, 115, 62 Cal.Rptr.2d 612) (“‘A categorical exemption is based on a finding by the Resources Agency that a class or category of projects does not have a significant effect on the environment. [Citations.] Thus an agency’s finding that a particular proposed project comes within one of the exempt classes necessarily includes an implied finding that the project has no significant effect on the environment. [Citation.]’”).
 Supra note 21.
 Supra note 7.
 https://ballotpedia.org/State_environmental_policy_acts (California, Connecticut, Georgia, Hawaii, Indiana, Maryland, Massachusetts, Minnesota, Montana, New Jersey, New York, North Carolina, South Dakota, Virginia, Washington, and Wisconsin).
 Id. (California also requires “private actions and projects” to comply).
 City of Manhattan Beach, 254 P.3d at 1008; County of Marin, 159 Cal. Rptr. at* 3; City and County of San Francisco, 166 Cal. Rptr. at* 2 (quoting City’s report).
 City of Manhattan Beach, 254 P.3d at 1008.
 Id. at 1010.
 Id. at 1008.
 Id. at 1008.
 Id. (Both lower courts ruled in favor of the Coalition.)
 Id. at 1008-09 (citing City’s Initial Study)
 Id. 1008-10 (quoting City’s Initial Study).
 Id. at 1009 (“‘While plastic does not bio-degrade it does ‘photo-degrade’ breaking down into smaller pieces which can make their way into the food chain [via] such animals as jellyfish.’”).
 Id. at 1009 (“the ordinance would require paper bags ‘to have 40% recycled content reducing landfill demand . . .’”) (quoting City’s Initial Study).
 Id. (“‘Plastic bags would not be replaced by paper bags on a one to one ratio since paper bags have a higher capacity. One study (commission by the plastic bag industry) estimates that for every 1500 plastic bags it would take 1000 paper bags to replace them. Other studies find that paper bags may hold up to four times the volume of paper bags.’”) (quoting the City’s Initial Study).
 Id. (“‘at least some percentage of plastic bags are expected to be replaced by reusable bags rather than paper bags.’”) (quoting the City’s Initial Study).
 Id. at 1010-11.
 Id. at 1008, 1016-1018.
 Id. (“When we consider the actual scale of the environmental impacts that might follow from increased paper bag use in Manhattan Beach, instead of comparing the global impact of paper and plastic bags, it is plain the city acted within its discretion when it determined that its ban on plastic bags would have no significant effect on the environment.”).
 County of Marin, 159 Cal. Rptr. at* 1, 7, 9-11 (quoting categorical exemptions listed in Guidelines §§ 15307-15308).
 Id. at* 9 (“[T]he contention is based on the language of the exemptions in sections 15307 and 15308 of the Guidelines (referred to as ‘Class 7’ and ‘Class 8’ exemptions), which established an exemption from CEQA for ‘actions taken by regulatory agencies authorized by state law or local ordinance’ either ‘to assure the maintenance, restoration, or enhancement of a natural resource’ in the case of a Class 7 exemption or ‘to assure the maintenance, restoration, enhancement, or protection of the environment’ in the case of a Class 8 exemption.”) (quoting categorical exemptions listed in Guidelines §§ 15307-15308) (emphasis added).
 Id. at* 1-3.
 Id. at* 2.
 Id. at* 1.
 Id. at* 2-3.
 Id. (“Among other things, the commission relied on a master environmental assessment prepared by Green Cities California in which it was reported that a ban on single-use plastic bags combined with a 5-cent charge for single-use paper bags in the District of Columbia had caused as many as two-thirds of consumers to shift from single-use to reusable bags. After the District of Columbia law went into effect, there was a 50 percent decrease in the number of plastic bags found during an annual cleanup of the Anacostia River watershed.”).
 Id. at* 5-7, 10.
 Id. at* 7 (“[P]laintiff draws the conclusion that an EIR is required for any plastic bag ban in (1) a city or county larger than Manhattan Beach, and (2) in smaller cities and counties based on cumulative impacts. Plaintiff then claims the population of Marin County in 2010 was 252,409, over seven times larger than Manhattan Beach.”).
 Id. at*6 (“The court held that the ‘city properly concluded that a ban on plastic bags in Manhattan Beach would have only a miniscule [sic] contributive effect on the broader environmental impacts detailed in the paper bag ‘life cycle’ studies relied on by plaintiff. Given the size of the city’s population (well under 40,000) and retail sector) under 220 establishments, most of them small), the increase in paper bag production following a local change from plastic to paper bags can only be described as insubstantial.’”) (quoting Manhattan Beach, at p. 174, 127 Cal.Rptr.3d 710, 254 P.3d 1005).
 Supra note 62.
 Id. at* 7-8.
 Id. (“The court [in Manhattan Beach] simply recognized that there may be circumstances when more comprehensive environmental review will be required if it can be shown that a plastic bag ban will result in a significant increase in paper bag use. That is simply not the case. Marin County’s ordinance applies to roughly 40 stores, compared to over 200 stores affected by Manhattan Beach’s ordinance.”).
 Id. at* 10.
 Id. (citing Davidon Homes, 54 Cal.App.4th at p. 115, 62 Cal.Rptr.2d 612).
 City and County of San Francisco, 166 Cal. Rptr. at* 7 (the Coalition made other arguments as well).
 Id. at* 4, 7 (quoting Guidelines §15300.2(c)).
 Id. at* 7 (quoting San Lorenzo Valley Cmnty. Advocates for Responsible Edu. v. San Lorenzo Valley Unified Sch. Dist. 139 Cal.App.4th 1356, 1381, 44 Cal.Rptr.3d 128).
 Id. at* 8-9.
 Id. at* 8 (“‘the ‘presence of 15.9 million tourists and hundreds of thousands of commuters each day constitutes ‘unusual circumstances’’ precluding the City from relying on a categorical exemption.”).
 Id. at* 8-9 (“commuters will ‘almost never’ bring their own reusable bags to the City and, even if they do, they are likely to underuse them before throwing them away which is bad for the environment.”).
 Id. at* 9.
 Id. at* 9.
 Id. (“[W]e are not convinced that global impact studies are a fair or accurate mechanism for measuring the impacts of a local ordinance which is clearly tailored to address the specific environmental goals of that specific locality.”).
 Id. at* 10.
 Id. at* 3 (“Studies document than banning plastic checkout bags and placing a mandatory charge on paper checkout bags will dramatically reduce the use of both types of bags and increase customers’ use of reusable bags.”) (quoting ordinance findings).
 Cf. supra note 11 (quoting Ohio Representative George Lang) (“‘The date is so empirical that we are getting our asses kicked by other pro-business friendly states,’ he said. ‘We’re the fifth most ‘left’ state in the nation.’”).
 City and County of San Francisco, 166 Cal. Rptr. at* 3 (“Plastic checkout bags are difficult to recycle and contaminate material that is processed through San Fransisco’s recycling and composting programs.”) (quoting ordinance findings); County of Marin, 159 Cal. Rptr. at* 2 (“plastic bags have no recycling markets, . . .”).
 Hanselman, supra note 1 (“[City Council Member] Seelbach will formally introduce the ordinance at council’s regular weekly meeting Wednesday. He’s promising at least two public hearings to get feedback before asking the full council to approve the measure.”).
 Abby Hamblin, The San Diego Union-Tribune (Dec. 31, 2018), https://www.sandiegouniontribune.com/opinion/the-conversation/sd-plastic-straw-ban-2019-california-new-law-20181231-htmlstory.html (“Assembly Bill 1884 prohibits full-service restaurants from providing single-use plastic straws unless they are requested.”); Hilary Brueck, Business Insider (Sept. 21, 2018), https://www.businessinsider.com/california-straw-ban-restaurants-what-you-need-to-know-2018-9,; Dakota Kim, Sunset Magazine (April 17, 2019), https://www.sunset.com/home-garden/green-living/straw-ban-info-guide.
 Hamblin, supra note 82 (citing Brenna Houck, Eater (Dec. 27, 2018), https://www.eater.com/2018/12/27/18156734/plastic-straw-ban-biggest-trend-2018); Brueck, supra note 82 (“It’s part of a global movement that’s quickly gaining momentum as people rethink their single-use plastic habits.”); Kim, supra note 82.
 Brueck, supra note 82; Kim, supra note 82 (citing Bonnie Rochman, Starbucks Stories & News (July 9, 2018) https://stories.starbucks.com/stories/2018/starbucks-announces-environmental-milestone/).