State Wrecks NYC’s Plastic Bag Fee Law & Bashes Home Rule

New York City’s 2016 break-through law that established a five cent fee on single use plastic (and paper) grocery bags so as to encourage shoppers to switch to reusables has been toppled in Albany.

New York Governor Andrew Cuomo has signed an ill-advised state bill preempting NYC’s plastic bag fee law just one day before the local statute was set to take effect.

The State’s action is a setback for litter reduction and clean water, and a reprieve for the plastic bag industry, which conducted an under-the-radar campaign against the City’s bag fee statute.

And by preempting New York City’s bag fee law—which was duly enacted by the City Council after two years of debate, public hearings and revisions—the State has also weakened home rule in New York. (Home rule is the legal doctrine that gives local governments power to enact certain laws that apply exclusively within their jurisdictions.)

BAG CITY—More than 9 billion plastic bags will be discarded again this year in NYC, as New York State nullifies City's plastic bag fee law.

Hamodia

While implementation of the city’s bag fee law has been blocked at the pass, the environmental problems posed by single-use plastic bags in the nation’s largest city continue to pour through.

Every year, New York City retail outlets give away more than 9 billion single-use plastic bags. Billions of them enter the waste stream and are sent to live forever in landfills at a cost of more than 12 million dollars a year. 

Plastic bags that aren’t landfilled usually end up in an ever-growing stream of urban litter; they dirty streets and parks, hang from tree branches and pollute local rivers and bays.

Cities and towns around the nation have acted to stem the tide of plastic bag litter. More than 200 communities across the country have adopted plastic bag bans or fees. 

A statewide ban on plastic bags (and fee for paper bags) was approved by California voters this past November. And just this month, a seven cent fee on plastic and paper single-use bags went into effect in Chicago.

Meanwhile, here in New York, State officials raised two main objections to New York City’s sensible plastic bag fee law.

First, they argued that the fee would unduly burden lower-income New Yorkers.

However, the city law exempted about 1.8 million WIC and SNAP (food stamp) participants from having to pay the fee.

More importantly, the law did not obligate a single New Yorker to pay even one cent for plastic bags. Shoppers from every income level could have avoided the bag fee simply by bringing reusable bags on their shopping trips.

Second, opponents complained that the bag fee would unjustly enrich the retailers, who would get to keep the five cent bag fee under the city’s law.

But generating fees for retailers never was the purpose of the statute. The bag fee was designed for one primary reason—to change public behavior. 

And that is exactly what has happened in other cities with bag fee statutes in place. In Washington DC, for example, plastic bag use has declined by more than 60 per cent since a five cent bag fee there went into effect.

Such factors led NRDC and our environmental allies to work with City Council environmental champions Brad Lander and Margaret Chin to advance New York’s bag fee law in the first place. 

Lander and Chin, and the 26 other City Council members who voted to pass the bag fee law (as well as those in the State Assembly and State Senate who voted against preemption) deserve public thanks for doing the right thing. So do activist Jennie Romer and all of the parents, teachers and school children from all five boroughs who campaigned to end the plastic bag scourge in New York. 

CALIFORNIA LEADS THE WAY—In a statewide referendum, California residents voted this past November to ban carry-out plastic bags and place a 10 cent fee on paper bags.

KEYT

A final concern with the state’s preemption statute is the cloud it places over the entire concept of municipal home rule in New York.  

As the New York Times editorialized, the State Legislature abused its power “by upending the principle that citizens, through their elected representatives in local government, should be able to decide for themselves issues that affect only their communities.”

If state legislators can retroactively scuttle the city’s plastic bag fee law, which applies exclusively to in-city plastic bag use, what is to stop them from reviewing and possibly nullifying a wide array of local government enactments from Buffalo to Montauk?

Having sided with the State Assembly and State Senate in their effort to kill the city’s bag fee law, Governor Cuomo now owns the issue.

It is he who must find opportunities to stand up for the long-recognized doctrine of municipal home rule. 

The Governor also needs to keep his promise that New York “can and should promulgate the best [plastic bag] policy in the country”—a pledge he made upon signing the preemption bill into law.

For the best policy in the country, the Governor’s newly created task force, charged with coming up with new legislation by year’s end, should start by looking at California. This past November, California voters approved a referendum that put a statewide ban on carry-out plastic bags into effect. It also established a fee for recycled paper and reusable bags of at least ten cents. 

In California, the plastics industry—which had spent over 6 million dollars in a campaign to defeat the statewide referendum—lost. And, tellingly, in the 150 California cities and towns that already had local plastic bag restrictions in effect, residents voted in favor of the referendum.

Governor Cuomo has demonstrated environmental leadership on a host of issues from blocking fracking, to boosting the Environmental Protection Fund, to accelerating the switch to renewables and closing Indian Point nuclear power plant.

But his signing of the pre-emption bill this week was a real disappointment. 

Even more disheartening was the lack of leadership from New York’s Speaker of the State Assembly, Carl Heastie. He and his lieutenants could have and should have headed off this bill before it picked up industry-inspired momentum in the legislature.

The editors of the New York Daily News didn’t mince words:

“Heastie and his fellow Democrats join John Flanagan and the Republican-controlled Senate in bipartisan, bicameral ignominy: subverting local representative government to undo a fully legal act of the New York City Council.” 

The failure of the State Assembly to respect New York City’s home rule and to reject this industry-inspired preemption bill is troubling, especially since the Assembly has a generally strong track record on environmental protection over the years and has on more than one occasion led the nation in progressive environmental policy-making. But not this week.

At a time when the Trump Administration is moving to decimate air and water pollution programs in Washington D.C., the last thing we need is for our highest New York State officials to lose their environmental moxie.

WE'RE NOT GIVING UP—Since Governor Cuomo signed legislation preempting NYC's progressive bag fee law, New Yorkers are counting on him to tackle the plastic bag problem in 2017.

Eadaoin Quinn

About the Authors

Eric A. Goldstein

Senior Attorney and New York City Environment Director

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