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holding that "[i]f consumer products were to be excluded from [a statutory] preemption provision, the Legislature would have said so, as it did by excluding consumer products elsewhere in the [Texas Solid Waste Disposal Act]"
Summary of this case from Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass'nOpinion
No. 16-0748
06-22-2018
CITY OF LAREDO, Texas, Petitioner, v. LAREDO MERCHANTS ASSOCIATION, Respondent
Jennifer D. Jasper, Munck Wilson Mandala, LLP, Austin, for Amicus Curiae Aliseda, Jose. Ellen E. Springer, Evan A. Young, Baker Botts LLP, Austin, for Amicus Curiae BCCA Appeal Group, Inc. Matthew L. Kuryla, Baker Botts LLP, Houston, for Amicus Curiae BCCA Appeal Group, Inc. Charles W. Irvine, Irvine & Conner PLLC, Houston, for Amici Curiae Bicycle Sport Shop, Environment Texas, and Natural Grocers. Mary Whittle, Guerrero & Whittle PLLC, Austin, for Amici Curiae Black Bass Unlimited, Cantrell, Shane, Farah, Joey, Hickman, Scott, Parten, Edward, Van Zandt, J. T., and Webb, Robert. Charles W. Irvine, Irvine & Conner PLLC, Houston, for Amici Curiae Bicycle Sport Shop, Environment Texas, and Natural Grocers. Frances Hagga, Austin, as Amicus Curiae Hagga, Frances. Marisa Perales, Richard W. Lowerre, Frederick Perales Allmon & Rockwell, P.C., Austin, for Amicus Curiae Rio Grande International Study Center. Joel Rheman, Sullins, Johnston, Rohrbach & Magers, Houston, for Amicus Curiae Texans for Clean Water, Inc. Christopher Blair Dancy, Taylor R. Romero, Zachary H. Bowman, Cain & Skarnulis PLLC, Austin, for Amicus Curiae Texas Campaign for the Environment. Bruce R. Bodson, Bodson Environmental Law and Science, P.C., Missouri City, for Amicus Curiae Texas Cotton Ginners Association Billy Joe Easter. Christy Drake-Adams, Texas Municipal League, Austin, for Amicus Curiae Texas Municipal League and Texas City Attorneys Association. Robert Earl Henneke, Texas Public Policy Foundation, Austin, for Amicus Curiae Texas Public Policy Foundation. Edward D. Burbach, Gardere Wynne Sewell LLP, Austin, for Amicus Curiae Texas Retailers Association. Timothy Stostad, Office of Senator Judith Zaffirini, Austin, for Amicus Curiae Texas State Senator Judith Zaffirini. Christopher D. Kratovil, Dykema Cox Smith, Dallas, for Amicus Curiae Texas State Senators and Texas State Representatives. Kristina M. Williams, Dykema Cox Smith, Austin, for Amicus Curiae Texas State Senators and Texas State Representatives. Donald S. Glywasky, Galveston, for Amicus Curiae The City of Galveston. Kimberly K. Coogan, Austin, for Amicus Curiae The City of Galveston. Collyn A. Peddie, Judith L. Ramsey, Ronald C. Lewis, Houston, for Amicus Curiae The City of Houston. Brantley D. Starr, David Austin Robert Nimocks, Jeffrey C. Mateer, Michael Toth, Scott A. Keller, W. Kenneth Paxton Jr., Austin, for Amicus Curiae The State of Texas. Kelly Haragan, University of Texas School of Law, Austin, for Amicus Curiae Turtle Island Restoration Network. Gerry Willis, Dripping Springs, as Amicus Curiae Willis, Gerry. Dale Wainwright, Alan W. Hersh, Greenberg Traurig, LLP, Austin, Andrea Broyles, Bracewell LLP, Dallas, Brian Hogue, Bracewell LLP, Houston, Kristina K. Laurel, Raul Casso IV, Laredo, Lindsay E. Hagans, Houston, for Petitioner. James B. Harris, Thompson & Knight LLP, Dallas, Christopher C. Peterson, Lopez Peterson PLLC, Laredo, for Respondent.
Jennifer D. Jasper, Munck Wilson Mandala, LLP, Austin, for Amicus Curiae Aliseda, Jose.
Ellen E. Springer, Evan A. Young, Baker Botts LLP, Austin, for Amicus Curiae BCCA Appeal Group, Inc.
Matthew L. Kuryla, Baker Botts LLP, Houston, for Amicus Curiae BCCA Appeal Group, Inc.
Charles W. Irvine, Irvine & Conner PLLC, Houston, for Amici Curiae Bicycle Sport Shop, Environment Texas, and Natural Grocers.
Mary Whittle, Guerrero & Whittle PLLC, Austin, for Amici Curiae Black Bass Unlimited, Cantrell, Shane, Farah, Joey, Hickman, Scott, Parten, Edward, Van Zandt, J. T., and Webb, Robert.
Charles W. Irvine, Irvine & Conner PLLC, Houston, for Amici Curiae Bicycle Sport Shop, Environment Texas, and Natural Grocers.
Frances Hagga, Austin, as Amicus Curiae Hagga, Frances.
Marisa Perales, Richard W. Lowerre, Frederick Perales Allmon & Rockwell, P.C., Austin, for Amicus Curiae Rio Grande International Study Center.
Joel Rheman, Sullins, Johnston, Rohrbach & Magers, Houston, for Amicus Curiae Texans for Clean Water, Inc.
Christopher Blair Dancy, Taylor R. Romero, Zachary H. Bowman, Cain & Skarnulis PLLC, Austin, for Amicus Curiae Texas Campaign for the Environment.
Bruce R. Bodson, Bodson Environmental Law and Science, P.C., Missouri City, for Amicus Curiae Texas Cotton Ginners Association Billy Joe Easter.
Christy Drake-Adams, Texas Municipal League, Austin, for Amicus Curiae Texas Municipal League and Texas City Attorneys Association.
Robert Earl Henneke, Texas Public Policy Foundation, Austin, for Amicus Curiae Texas Public Policy Foundation.
Edward D. Burbach, Gardere Wynne Sewell LLP, Austin, for Amicus Curiae Texas Retailers Association.
Timothy Stostad, Office of Senator Judith Zaffirini, Austin, for Amicus Curiae Texas State Senator Judith Zaffirini.
Christopher D. Kratovil, Dykema Cox Smith, Dallas, for Amicus Curiae Texas State Senators and Texas State Representatives.
Kristina M. Williams, Dykema Cox Smith, Austin, for Amicus Curiae Texas State Senators and Texas State Representatives.
Donald S. Glywasky, Galveston, for Amicus Curiae The City of Galveston.
Kimberly K. Coogan, Austin, for Amicus Curiae The City of Galveston.
Collyn A. Peddie, Judith L. Ramsey, Ronald C. Lewis, Houston, for Amicus Curiae The City of Houston.
Brantley D. Starr, David Austin Robert Nimocks, Jeffrey C. Mateer, Michael Toth, Scott A. Keller, W. Kenneth Paxton Jr., Austin, for Amicus Curiae The State of Texas.
Kelly Haragan, University of Texas School of Law, Austin, for Amicus Curiae Turtle Island Restoration Network.
Gerry Willis, Dripping Springs, as Amicus Curiae Willis, Gerry.
Dale Wainwright, Alan W. Hersh, Greenberg Traurig, LLP, Austin, Andrea Broyles, Bracewell LLP, Dallas, Brian Hogue, Bracewell LLP, Houston, Kristina K. Laurel, Raul Casso IV, Laredo, Lindsay E. Hagans, Houston, for Petitioner.
James B. Harris, Thompson & Knight LLP, Dallas, Christopher C. Peterson, Lopez Peterson PLLC, Laredo, for Respondent.
Chief Justice Hecht delivered the opinion of the Court.The roving, roiling debate over local control of public affairs has not, with increased age, lost any of its vigor. From public education to immigration policy to fracking to shopping bags, the sides are always deeply divided. "Judges have no dog in this fight. Our duty is to apply the rules fairly and equally to both sides."
Although "[n]early all [the framers of the Texas Constitution of 1876] were for local control, having chafed under the centrally controlled schools of the Reconstruction Era", Neeley v. W. Orange-Cove Consol. Indep. Sch. Dist. , 176 S.W.3d 746, 786 (Tex. 2005), arguments for more state control of public education abound.
See City of El Cenizo v. Texas , 890 F.3d 164, 165, 170–73 (5th Cir. 2018) (upholding, in substantial part, the constitutionality of Senate Bill 4, Act of May 3, 2017, 85th Leg., R.S., ch. 4, § 1.01, 2017 Tex. Gen. Laws 7 (codified at Tex. Gov't Code § 752.051 ), which "forbids 'sanctuary city' policies throughout the state").
See Act of May 4, 2015, 84th Leg., R.S., ch. 30, § 2, 2015 Tex. Gen. Laws 971 (codified at Tex. Nat. Res. Code § 81.0523 ) (prohibiting local ordinances that "ban[ ], limit[ ], or otherwise regulate[ ] an oil and gas operation", Tex. Nat. Res. Code § 81.0523(b) ).
Compare Local Government: Legislator's Guide to the Issues 2017–2018 , Tex. Pub. Pol'y Found ., https://www.texaspolicy.com/library/doclib/Local-Control-copy.pdf (last visited June 20, 2018), with Richard C. Schragger, The Attack on American Cities , 96 Texas L. Rev . 1163, 1232 (2018) ("For some, the states' primacy in the constitutional system may be not only defensible but worthy of celebration. Others might find the Constitution's anti-urban bias to be troubling for reasons of equal treatment or because it generates disfavored policy outcomes.").
United States v. Howard , 793 F.3d 1113, 1115 (9th Cir. 2015) (Kozinski, J., concurring). For what it's worth, "[a] person commits an offense if the person intentionally or knowingly ... causes a dog to fight with another dog" or "attends as a spectator an exhibition of dog fighting." Tex. Penal Code § 42.10(a)(1), (6). The latter is a Class A misdemeanor, the former a state jail felony. Id. § 42.10(e).
The Texas Constitution states that city ordinances cannot conflict with state law. The Texas Solid Waste Disposal Act ("the Act") provides that "[a] local government ... may not adopt an ordinance ... to ... 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". The sharply contested issue here is whether the Act preempts, and thus invalidates, a local antilitter ordinance prohibiting merchants from providing "single use" plastic and paper bags to customers for point-of-sale purchases. The trial court upheld the ordinance, but a divided court of appeals reversed, holding that it is preempted by the Act.
Tex. Const . art. XI, § 5 (a) ("[N]o ... ordinance passed under [a city] charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.").
Tex. Health & Safety Code § 361.0961(a)(1). The full text of Section 361.0961(a) states:
(a) 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;
(2) prohibit or restrict the processing of solid waste by a solid waste facility, except for a solid waste facility owned by the local government, permitted by the commission for that purpose 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.
Laredo , Tex. , Code of Ordinances §§ 33-504 to 33-505.
No. 04-15-00610-CV, 2016 WL 4376627, at *8 (Tex. App.—San Antonio Aug. 17, 2016) (mem. op.) (2–1 decision).
Both sides of the debate and the many amici curiae who have weighed in assert public-policy arguments raising economic, environmental, and uniformity concerns. But those arguments are not ours to resolve. "The wisdom or expediency of the law is the Legislature's prerogative, not ours." We must take statutes as they are written, and the one before us is written quite clearly. Its limitation on local control encompasses the ordinance. We affirm the judgment of the court of appeals.
Amicus briefs were filed by The Honorable Jose Aliseda; BCCA Appeal Group, Inc.; City of Galveston; City of Houston; Environment Texas, Natural Grocers, and Bicycle Sport Shop; Frances Hagga; Rio Grande International Study Center; State of Texas; Texans for Clean Water, Inc.; Texas Black Bass Unlimited, Edward Parten, Shane Cantrell, Joey Farrah, Scott Hickman, J.T. Van Zandt, and Robert Webb; Texas Campaign for the Environment; Texas Cotton Ginners' Association and Billy Joe Easter; Texas Municipal League and Texas City Attorneys Association; Texas Public Policy Foundation; Texas Retailers Association; Turtle Island Restoration Network; Gerry Willis; and Texas State Senator Judith Zaffirini.
Smith v. Davis , 426 S.W.2d 827, 831 (Tex. 1968).
See Simmons v. Arnim , 110 Tex. 309, 220 S.W. 66, 70 (1920) ("Courts must take statutes as they find them. More than that, they should be willing to take them as they find them."); see also Sw. Bell Tel., L.P. v. Emmett , 459 S.W.3d 578, 584 (Tex. 2015) ; In re Tex. Dep't of Family & Protective Servs. , 210 S.W.3d 609, 614 (Tex. 2006) (orig. proceeding); Drilex Sys., Inc. v. Flores , 1 S.W.3d 112, 123 (Tex. 1999).
I
As part of a strategic plan to create a "trash-free" city, the City of Laredo adopted an ordinance to reduce litter from one-time-use plastic and paper bags ("the Ordinance"). To discourage use of these bags, the Ordinance makes it unlawful for any "commercial establishment" to provide or sell certain plastic or paper "checkout bags" to customers. The ordinance applies to commercial enterprises that sell retail goods to the general public and includes the business's employees and associated independent contractors. A violation is punishable as a Class C misdemeanor with a fine of up to $2,000 per violation plus court costs and expenses.
See Laredo, Tex., Ordinance 2014-O-064 (June 2, 2014) (codified, as amended, at Laredo , Tex. , Code of Ordinances § 33-501) (noting in the preliminary statement that "in December 2003, the City Council adopted a strategic plan that included ... a goal to create a 'trash-free' city").
Laredo , Tex. , Code of Ordinances § 33-505. Subject to certain exceptions, a prohibited "checkout bag" is (1) "a plastic one-time-use carryout bag that is provided by a commercial establishment to a customer at the point of sale or elsewhere in the commercial establishment, and is less than four (4) mils thick"; or (2) "a single-use paper bag." Id. § 33-504. A "single-use paper bag" is "a checkout bag provided by a commercial establishment at the point of sale or elsewhere in the commercial establishment that is made from paper and contains old growth fiber and/or contains less than forty (40) percent post-consumer recycled material." Id. The ordinance does not apply to:
(1) Laundry, dry cleaning bags, door-hanger bags, newspaper bags, or packages of multiple bags intended for use as garbage, pet waste, or yard waste;
(2) Bags provided by pharmacists or veterinarians to contain prescription drugs or other medical necessities;
(3) Bags used by restaurants to take away prepared food[ ];
(4) Bags used by a consumer inside a business establishment to:
a. Contain bulk items, such as produce, nuts, grains, candy, or small hardware items;
b. Contain or wrap frozen foods, meat, or fish, whether or not prepackaged;
c. Contain or wrap flowers, potted plants or other items to prevent moisture damage to other purchases; or
d. Contain unwrapped prepared foods or bakery goods; and
e. [sic] Bags used by a non-profit or charity to distribute food, grocery products, clothing, or other household items.
Id. § 33-507.
Id. § 33-504.
Id. § 33-508.
The Ordinance's stated objectives are:
(a) To promote the beautification of the city through prevention of litter generated from discarded checkout bags.
(b) To reduce costs associated with floatable trash controls and the maintenance of the municipal separate stormwater sewer system.
(c) To protect life and property from flooding that is a consequence of improper stormwater drainage attributed in part to obstruction by litter from checkout bags.
Id. § 33-501.
The Ordinance declares that its purpose is to "reduce litter from discarded plastic bags" in order to "help bring the City one step closer to being a trash-free city". The Ordinance, in its words, "is not a ban on plastic bags, but an incremental implementation plan towards a cleaner city".
Laredo, Tex., Ordinance 2014-O-064 (preliminary statement) (now codified, as amended, at Code of Ordinances § 33-501).
Id.
Shortly before the Ordinance's effective date, the Laredo Merchants Association (the Merchants) sued the City to forestall its enforcement. The Merchants sought declaratory and injunctive relief, asserting that the Ordinance is preempted by Section 361.0961 of the Act and thus void under the Texas Constitution. That provision, as important here, expressly precludes a local government from prohibiting or restricting "the sale or use of a container or package" if the restraint is for "solid waste management purposes" and the "manner" of regulation is "not authorized by state law".
See Tex. Const . art. XI, § 5.
The City moved for summary judgment, arguing that the Act does not clearly and unmistakably preempt a municipality from banning single-use bags. According to the City, the Act does not preempt its Ordinance because:
• the statutory terms "container" and "package" refer to a closed vessel or wrapping, not "bags";
• the Ordinance was not enacted for a "solid waste management purpose[ ]" because it regulates activities occurring before single-use bags become trash;
• the Ordinance is "authorized by" Texas Local Government Code Section 551.002, which generally permits a home-rule municipality, like the City, to enact regulations to protect streams and watersheds; and
• the Ordinance is a valid exercise of the City's police power.
See Tex. Loc. Gov't Code § 551.002 (a) –(b).
In a cross-motion for partial summary judgment, the Merchants asserted that:
• a "bag" is a "container" within the plain and ordinary meaning of the statutory term;
• nothing in the Solid Waste Disposal Act supports the City's circumscribed construction of "solid waste management purposes";
• the Ordinance's purpose, both stated and effective, is to systematically control the generation of a particular form of solid waste, which is a "solid waste management purpose[ ]"; and
• whether the City was exercising its police powers in enacting the Ordinance is irrelevant to the preemption inquiry.
The trial court granted the City's motion for summary judgment and denied the Merchants' motion, holding, without elaboration, that the Ordinance is not void because reasonable constructions exist under which both the Act and the Ordinance could be effective.
A divided court of appeals reversed, rendered judgment declaring that the Act preempts the Ordinance, and remanded for consideration of the Merchants' claim for attorney fees. Relying on defined statutory terms and the plain meaning of undefined terms, the court concluded that a plastic or paper bag is a "container" or "package" within the Act's meaning; the Ordinance has a solid waste management purpose and effect; and the City is not empowered by state law to prohibit the sale or use of plastic and paper bags. The dissenting justice discerned implicit limits on the meaning of the term "container" from variant uses of that term elsewhere in the Act and from its structure. In the dissent's view, the Act's preemption provision "may reasonably be construed as applying to solid waste containers used to store, transport, process, or dispose of solid waste, particularly those used by solid waste facilities and those used in medical waste management." Thus, the dissent concluded, the Ordinance does not regulate solid waste containers, and the Act does not preempt it.
No. 04-15-00610-CV, 2016 WL 4376627, at *1, *8 (Tex. App.—San Antonio Aug. 17, 2016) (mem. op.) (2–1 decision).
See id. at *5–7 ; see also id. at *7 ("The Ordinance does exactly what the Act intends to prevent—regulate the sale or use of plastic bags for solid waste management purposes.").
See id. at *8 (Chapa, J., dissenting).
Id. at *14.
Id.
We granted the City's petition for review, in part because similar ordinances have been enacted by other municipalities.
60 Tex. Sup. Ct. J. 1607 (Sept. 1, 2017). Amicus curiae, the City of Houston, argues (the parties do not) that the Court lacks jurisdiction over the case because the Ordinance is penal in nature, not civil, and therefore can be challenged only in defense to a criminal prosecution for violating it. See State v. Morales , 869 S.W.2d 941, 944–945 (Tex. 1994) (explaining that where the party challenging the constitutionality of a criminal statute or ordinance is being prosecuted, or the threat of prosecution is imminent, "the meaning and validity of [the] statute or ordinance should ordinarily be determined by courts exercising criminal jurisdiction" (quoting Passel v. Fort Worth Indep. Sch. Dist. , 440 S.W.2d 61, 63 (Tex. 1969) ) ). But civil courts have jurisdiction to enjoin or declare void an unconstitutional penal ordinance when "there is the threat of irreparable injury to vested property rights." Id. at 945 ; see also Passel , 440 S.W.2d at 63 ; State v. Logue , 376 S.W.2d 567, 569 (Tex. 1964) (orig. proceeding). That rule applies here, where the ordinance prohibits the complaining vendors from using noncompliant bags and, if they do, imposes a substantial per-violation fine that effectively precludes small local businesses from testing the ban's constitutionality in defense to a criminal prosecution. See Austin v. Austin City Cemetery Ass'n , 87 Tex. 330, 28 S.W. 528, 529–530 (1894) (holding that a cemetery owner could sue to enjoin the enforcement of a city ordinance restricting the location of cemeteries). We have jurisdiction over the case.
See Eagle Pass , Tex. , Code of Ordinances § 16-84; Corpus Christi , Tex. , Code of Ordinances § 22-10; Port Aransas, Tex., Ordinance No. 2014-15, § 10-26; Kermit , Tex. , Code of Ordinances § 98.01; Sunset Valley , Tex. , Code of Ordinances § 93-61; Austin , Tex. , Code of Ordinances § 15-6-121; Freer, Tex., Ordinance No. 2012-05; Laguna Vista, Tex., Ordinance No. 2012-23; South Padre Island , Tex. , Code of Ordinances § 12-30.1; Brownsville , Tex. , Code of Ordinances § 46-49; Ft. Stockton , Tex. , Code of Ordinances § 12-19.
II
A
As a home-rule municipality, the City of Laredo possesses the "full power of local self-government." But Article XI, Section 5(a) of the Texas Constitution provides that home-rule city ordinances must not "contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State." While home-rule cities have all power not denied by the Constitution or state law, and thus need not look to the Legislature for grants of authority, the Legislature can limit or withdraw that power by general law. Deciding whether uniform statewide regulation or nonregulation is preferable to a patchwork of local regulations is the Legislature's prerogative. The question is not whether the Legislature can preempt a local regulation like the Ordinance but whether it has.
Tex. Const . art. XI, § 5 (a).
Glass v. Smith , 150 Tex. 632, 244 S.W.2d 645, 649 (1951) ("Any rights conferred by or claimed under the provisions of a city charter ... are subordinate to the provisions of the general law."); accord BCCA Appeal Grp., Inc. v. City of Houston , 496 S.W.3d 1, 7 (Tex. 2016) ("Home-rule cities possess the power of self-government and look to the Legislature not for grants of authority, but only for limitations on their authority."); S. Crushed Concrete, LLC v. City of Houston , 398 S.W.3d 676, 678 (Tex. 2013) (same); Wilson v. Andrews , 10 S.W.3d 663, 666 (Tex. 1999) ("[T]he Legislature can limit or augment a [home-rule] city's self-governance."); Dall. Merchs. & Concessionaire's Ass'n v. City of Dallas , 852 S.W.2d 489, 490–491 (Tex. 1993) (same); Tyra v. City of Houston , 822 S.W.2d 626, 628 (Tex. 1991) ("The Texas Constitution prohibits a city from acting in a manner inconsistent with the general laws of the state. Thus, the legislature may, by general law, withdraw a particular subject from a home rule city's domain." (citation omitted) ); City of Richardson v. Responsible Dog Owners of Tex. , 794 S.W.2d 17, 19 (Tex. 1990) (home-rule cities have broad discretionary powers provided that no ordinance conflicts with the Texas Constitution or state law); Lower Colo. River Auth. v. City of San Marcos , 523 S.W.2d 641, 643–644 (Tex. 1975) (home-rule cities have "full authority to do anything the legislature could theretofore have authorized them to do" subject to legislatively expressed limitations on their powers); City of Beaumont v. Fall , 116 Tex. 314, 291 S.W. 202, 205–206 (1927) ("[W]hen the state itself steps in and makes a general law and applies such law to all cities of a certain class, then ... no city of the same class is authorized, under our Constitution, to enact contrary legislation.").
See BCCA Appeal Grp., Inc. , 496 S.W.3d at 14 (invalidating an ordinance that "thwart[ed] the Legislature's intent that 'uniformity ... prevail throughout the state' " with respect to regulation of air pollution (quoting City of Weslaco v. Melton , 158 Tex. 61, 308 S.W.2d 18, 19–20 (1957) ) ); see also City of El Cenizo v. Texas , 890 F.3d 164, 191 (5th Cir. 2018) ("For better or for worse, Texas can 'commandeer' its municipalities this way.").
A statutory limitation of local laws may be express or implied, but the Legislature's intent to impose the limitation "must 'appear with unmistakable clarity.' " The mere "entry of the state into a field of legislation ... does not automatically preempt that field from city regulation". Rather, "local regulation, ancillary to and in harmony with the general scope and purpose of the state enactment, is acceptable." Absent an express limitation, if the general law and local regulation can coexist peacefully without stepping on each other's toes, both will be given effect or the latter will be invalid only to the extent of any inconsistency.
See Lower Colo. River Auth. , 523 S.W.2d at 645 ("A limitation on the power of home rule cities by general law ... may be either an express limitation or one arising by implication."); Glass , 244 S.W.2d at 649.
Lower Colo. River Auth. , 523 S.W.2d at 645 (quoting City of Sweetwater v. Geron , 380 S.W.2d 550, 552 (Tex. 1964) ); accord BCCA Appeal Grp., Inc. , 496 S.W.3d at 7 ; In re Sanchez , 81 S.W.3d 794, 796 (Tex. 2002) (orig. proceeding).
City of Brookside Village v. Comeau , 633 S.W.2d 790, 796 (Tex. 1982) ; see City of Richardson , 794 S.W.2d at 19 ("[T]he mere fact that the legislature has enacted a law addressing a subject does not mean that the subject matter is completely preempted.").
City of Brookside Village , 633 S.W.2d at 796 (Tex. 1982).
See City of Beaumont , 291 S.W. at 206 ("Of course, a general law and a city ordinance will not be held repugnant to each other if any other reasonable construction leaving both in effect can be reached. In other words, both will be enforced if that be possible under any reasonable construction, just as one general statute will not be held repugnant to another unless that is the only reasonable construction.").
In this case, legislative intent in the Act to preempt local law is clear. The Act states that "[a] local government or other political subdivision may not adopt" certain ordinances. The issue is whether the Ordinance falls within the Act's ambit. To decide that, we look, as usual, to the statutory text and the ordinary meanings of its words.
See In re Sanchez , 81 S.W.3d at 796 (stating that an ordinance is preempted only "to the extent it conflicts with the state statute").
See Molinet v. Kimbrell , 356 S.W.3d 407, 411 (Tex. 2011) ("The plain meaning of the text is the best expression of legislative intent unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.").
B
The Act provides, "It is this state's policy and the purpose of [the Act] to safeguard the health, welfare, and physical property of the people and to protect the environment by controlling the management of solid waste". To that end, "the state's goal, through source reduction, [is] to eliminate the generation of municipal solid waste ... to the maximum extent that is technologically and economically feasible." According to the Act,
Id. § 361.022(a).
the state's public policy [is] that, in generating, treating, storing, and disposing of municipal solid waste ..., the methods listed [below] are preferred to the extent economically and technologically feasible and considering the appropriateness of the method to the type of solid waste material ... generated, treated, disposed of, or stored[:]
* * *
(1) source reduction and waste minimization;
(2) reuse or recycling of waste;
(3) treatment to destroy or reprocess waste to recover energy or other beneficial resources if the treatment does not threaten public health, safety, or the environment; or
(4) land disposal.
Id. § 361.022(a)–(b).
The Act thus describes a state interest in "controlling the management of solid waste" that is plenary. The Act's preemption of local control is narrow and specific, applying to ordinances that "prohibit or restrict, [1] for solid waste management purposes, [2] the sale or use of a container or package [3] in a manner not authorized by state law". The City argues that its Ordinance does not meet any of these elements. We address each in turn.
Id. § 361.002(a).
Id. § 361.0961(a)(1).
1
The Act does not define the phrase "solid waste management purposes" but does define its constituent parts. "[S]olid waste" means "discarded material", including "rubbish", which is "nonputrescible solid waste ... that consists of ... combustible waste materials, including paper ... [and] plastics". " 'Management' means the systematic control of the activities of generation, source separation, collection, handling, storage, transportation, processing, treatment, recovery, or disposal of solid waste." The term "management" thus refers to institutional controls imposed at any point in the solid waste stream, from generation of solid waste to disposal.
Id.
Id. § 361.003(31)(A).
Id. § 361.003(18).
The Ordinance's stated purpose and its intended effect are to control the generation of solid waste by reducing a source of solid waste on the front end so those single-use materials cannot be inappropriately discarded on the back end. The City contends that this is "source reduction", defined by the Act as "an activity or process that avoids the creation of municipal solid waste in the state by reducing waste at the source". The purpose of the Ordinance cannot be "solid waste management", the City argues, because at the moment of regulatory restraint, the bags have not yet been discarded and, therefore, are not yet "solid waste". But "management" includes "the systematic control of the ... generation ... of solid waste" as well as its handling after it is created. The Act does not define "generation", so we give the word its ordinary meaning—to generate is "to cause to be: bring into existence". The Ordinance's stated purposes are to reduce litter and eliminate trash—in sum, to manage solid waste, which the Act preempts. The Ordinance cannot fairly be read any other way.
Id. § 361.421(9).
Id. § 361.003(18).
Webster's Third New International Dictionary 945 (2002); see also New Oxford American Dictionary 722 (3d ed. 2010) (definitions of "generate" include "to arise or come about" and "produce"). The City argues that we should look instead to the definition of "generator" used by the Texas Commission on Environmental Quality in its regulations: "Any person, by site or location, that produces solid waste to be shipped to any other person, or whose act or process produces a solid waste or first causes it to become regulated."30 Tex. Admin. Code § 330.3(58). Extrapolating, this definition might be read to suggest that "generation" includes causing solid waste to be produced or first causing it to be regulated. That would seem to include the dictionary meaning. In any event, the City draws no parallel between a "generator" in the regulations and "generation" in the Act. The dictionary definition is therefore preferable.
But, the City argues, the Ordinance has other, independent, and distinct purposes for prohibiting the provision of single-use bags, such as preventing sewer blockages and flooding, promoting beautification, ameliorating the economic impact of this particular form of litter, and protecting water and wildlife. All of these salutary objectives pertain to the ancillary effects of reducing the generation of solid waste, which is a solid waste management purpose. The Ordinance's solid waste management cannot avoid preemption merely because it has other purposes.
We think it clear that the Ordinance was adopted for solid waste management purposes.
2
In the City's view, the Act does not clearly apply to new bags for point-of-sale purchases because the term "bag" is not used in the statute and the statute is contextually focused on trash, not new items. As the City sees it, no matter how likely or expeditiously single-use bags are destined to become trash, the Act's reach is limited to either (1) containers and packages that have already been discarded, or (2) containers and packages that store or transport garbage, like dumpsters. Again, the City's narrow construction is not supported by a plain reading of the statute.
Neither "container" nor "package" is statutorily defined, so we begin by looking to the words' ordinary meanings. A "container" is "an object that can be used to hold or transport something"; "a receptacle (as a box or jar) or a formed or flexible covering for the packing or shipment of articles, goods, or commodities". The term "package" refers to "a commodity in its container: a unit of a product uniformly processed, wrapped, or sealed for distribution [like cigarettes or fruits and vegetables]"; "a covering wrapper or container ... [such as] a protective unit for storing or shipping a commodity"; "an object or group of objects wrapped in paper or plastic, or packed in a box"; and "the box or bag in which things are packed." A "bag," commonly understood, is "a container made of paper, cloth, mesh, metal foil, plastic, or other flexible material ... for properly holding, storing, carrying, shipping, or distributing any material or product". A single-use paper or plastic bag used to hold retail goods and commodities for transportation clearly falls within the ordinary meaning of "container". The Ordinance itself repeatedly characterizes bags as containers. Construing the term "container" to exclude bags is incompatible with the common use and understanding of that word.
New Oxford American Dictionary , supra note 52, at 374.
Webster's Third New International Dictionary , supra note 52, at 491; see Webster's New World College Dictionary 320 (5th ed. 2014) (defining "container" as "a thing that ... can contain something; box, crate, can, jar, etc.").
Webster's Third New International Dictionary , supra note 52, at 1617.
New Oxford American Dictionary , supra note 52, at 1257; see Webster's New World College Dictionary , supra note 54, at 1047 (substantially the same).
Webster's Third New International Dictionary , supra note 52, at 162; see New Oxford American Dictionary , supra note 52, at 122 (defining "bag" as "a container of flexible material with an opening at the top, used for carrying things: brown paper bags / a shopping bag "); Webster's New World College Dictionary , supra note 54, at 108 (substantially the same).
The Ordinance exempts from the bag ban single-use bags that "contain prescription drugs or other medical necessities"; "[c]ontain bulk items, such as produce, nuts, grains, candy, or small hardware items"; "[c]ontain or wrap frozen foods, meat, or fish, whether or not prepackaged"; "[c]ontain or wrap flowers, potted plants or other items to prevent moisture damage to other purchases"; and "[c]ontain unwrapped prepared foods or bakery goods". Laredo , Tex. , Code of Ordinances § 33-507(2)–(4).
But the common understanding of the words is only the beginning of the inquiry. We must also consider the statutory context to determine whether the Legislature intended a narrower or more specialized meaning than the words used would ordinarily carry. In their immediate context, the words "container" and "package" are not accompanied by words modifying or restricting the terms in the way the City suggests, neither in Section 361.0961(a)(1), which is at issue here, nor in subsection (a)(3), which prohibits local governments from "assess[ing] a fee or deposit on the sale or use of a container or package." By the latter provision, a "container or package" is something that can be sold or used for a fee or deposit, that is, something that is not already trash. While a discarded container might yet be sold, it would never be subject to a deposit, designed to secure its return. One would expect a deposit to be assessed on an item that was not trash at the time of assessment but likely to become trash, not the other way around.
See Tex. Health & Safety Code § 361.0961(a)(1) ("A local government ... may not adopt an ordinance ... [that] prohibit[s] or restrict[s], for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law").
Id. § 361.0961(a)(3) ; see Tex. Dep't of Transp. v. Needham , 82 S.W.3d 314, 318 (Tex. 2002) ("Statutory terms should be interpreted consistently in every part of an act.").
The word "deposit" bears widely disparate meanings, but its aptest, most likely sense, for purposes of subsection (a)(3) is something that is in the nature of security or a pledge, as in a bottle deposit.
The alternative limitation the City proposes—receptacles used to hold or transport solid waste—fares no better. The Act does use "container" in that sense but does not restrict the word to that meaning. The word "package" does not appear elsewhere in the Act, but "packaging" does, and its use is consistent with the ordinary understanding of the term, not as a solid waste receptacle. The phrase "container or package" suggests analogous meanings, contrary to the City's argument.
See Tex. Health & Safety Code § 361.421(9)(A) (providing that "[s]ource reduction" includes "redesigning a product or packaging so that less material is ultimately disposed of"); § 361.425(a)(1) (requiring certain state entities to establish programs for separation and collection of all recyclable materials generated by the entity, including "aseptic packaging"); § 361.955(f)(3) (as part of a manufacturer's recovery plan for recycling computer equipment, the manufacturer "may include collection, recycling, and reuse information in the packaging"); § 361.979(g)(3) (television recycling education program must "use television manufacturer-developed customer outreach materials, such as packaging inserts"); § 361.981(b) (retailer of covered television equipment shall provide information regarding recycling the equipment, which may be included "as part of the packaging of the equipment").
The Act is not concerned solely with discarded materials but also includes regulations applicable to the production, retail sale, and distribution of new consumer goods. If consumer products were to be excluded from the preemption provision, the Legislature would have said so, as it did by excluding consumer products elsewhere in the Act. As a fundamental statutory-construction principle, "[w]e presume that the Legislature chooses a statute's language with care, including each word chosen for a purpose, while purposefully omitting words not chosen." The only reasonable construction of the Act that accords with the statute as a whole is one that affords the terms container and package their ordinary meanings.
See id. § 361.138(b) (requiring retail sellers of batteries to charge a waste remediation fee with the sale of each battery); § 361.956(a) (prohibiting retailers from selling new computer equipment unless the products bear specific labeling); §§ 361.974–.975 (imposing labeling requirements as a precondition to manufacturer and retail sales of new television equipment).
See id. § 361.181(c)(1) ("The term ['facility'] does not include any consumer product in consumer use or any vessel."); § 361.651(3)(B)(i) (excepting from the definition of "[s]olid waste facility" a "consumer product in consumer use"); § 361.701(7)(B)(i) (same).
See TGS-NOPEC Geophysical Co. v. Combs , 340 S.W.3d 432, 439 (Tex. 2011).
3
Finally, the City argues that the Ordinance escapes preemption because it is "authorized by state law" as shown by its consistency with various state general laws—laws regarding municipal authority to: protect water sources, the municipal water supply, and watersheds; regulate water systems in a manner that protects the municipality's interests; own, construct, operate, and maintain a water system; adopt and enforce rules pertaining to operating a drainage utility system; maintain and regulate the cleaning of sewers; and establish "a water pollution control and abatement program for the city", including "the development and execution of reasonable and realistic plans for controlling and abating pollution". The City also cites laws imposing liability for damages caused by the operation of the municipality's sewer systems and authorizing cities to impose fines for unsanitary conditions.
Tex. Loc. Gov't Code § 551.002.
See generally id.
Id. § 552.017.
Id. § 552.045.
Tex. Water Code § 26.177(a), (b)(5).
But the Act preempts local regulation "in a manner not authorized by state law". The question is not whether a municipality has the power to regulate. Home-rule cities already have the power of self-governance unless restricted by state law. If "authorized by law" in the preemption provision referred only to the power municipalities already have, the restriction would have no effect. But the preemption provision applies to local regulation when the manner is not authorized by state law. Manner is how something can be done, not merely if it can be. A manner must be stated by, and not merely implied from, a grant of authority. The clear, stated intent of the Act is to control the manner of regulating the sale or use of containers or packages for solid waste management purposes. To conclude otherwise would render the statute meaningless.
Id. § 361.0961(a)(1) (emphasis added).
See New Oxford American Dictionary 1065 (2010) (defining "manner" as "a way in which a thing is done or happens"); Webster's Third New International Dictionary 1376 (3d ed. 2002) (defining "manner" as "the mode or method in which something is done or happens: a mode of procedure or way of acting"); Webster's New World College Dictionary 888 (5th ed. 2014) (substantially the same).
See Crosstex Energy Servs., L.P. v. Pro Plus, Inc. , 430 S.W.3d 384, 390 (Tex. 2014) ("We must not interpret the statute 'in a manner that renders any part of the statute meaningless or superfluous.' " (quoting Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue , 271 S.W.3d 238, 256 (Tex. 2008) ) ).
By rescinding local control that would otherwise exist, the Act forbids home-rule cities from regulating that subject matter. By authorizing regulation only when municipalities are told how to permissibly regulate, the Act requires an express authorization. These circumstances are functionally analogous to how general-law municipalities operate under the law. General-law municipalities lack the power of self-government and must look to the Legislature for express grants of power. So too must a home-rule city whose self-governance has been legislatively abrogated.
Town of Lakewood Vill. v. Bizios , 493 S.W.3d 527, 531 (Tex. 2016).
The Act's exemption does not save the Ordinance because the City has not identified a law authorizing the manner in which the City seeks to regulate. The general grants of regulatory authority the City relies on do not authorize the manner the City has chosen and, more to the point, do not supersede the express directive in the Act.
* * * * *
The court of appeals correctly held that the Act preempts the City's Ordinance. Its judgment remanding the case to the trial court to consider the Merchants' claims for attorney fees and costs is therefore
See Tex. Civ. Prac. & Rem. Code § 37.009 (authorizing an award of costs and fees if "equitable and just").
Affirmed.
Justice Guzman filed a concurring opinion, in which Justice Lehrmann joined.
Justice Blacklock did not participate in the decision.
Justice Guzman, joined by Justice Lehrmann, concurring.As judges, our role "is not to second-guess the policy choices that inform our statutes or to weigh the effectiveness of their results; rather, our task is to interpret those statutes in a manner that effectuates the Legislature's intent." The critical inquiry here is whether the Legislature, through clear and unmistakable language, expressed its intent to preempt local regulation, and it has. Our duty is to enforce the statute as we find it, so we have. The compelling public policy arguments advanced by both sides of the debate are acutely legislative concerns and, as such, are constitutionally removed from judicial purview.
McIntyre v. Ramirez , 109 S.W.3d 741, 748 (Tex. 2003).
BCCA Appeal Grp., Inc. v. City of Hous. , 496 S.W.3d 1, 7-8 (Tex. 2016).
See Tex. Health & Safety Code § 361.0961(a)(1) ("A local government or other political subdivision may not adopt an ordinance, rule, or regulation to 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.").
In re Corral-Lerma , 451 S.W.3d 385, 387 (Tex. 2014) (orig. proceeding).
Tex. Const. art. II, § 1 (establishing three branches of state government and mandating separation of their powers); cf. Turner Broadcasting Sys., Inc. v. FCC , 512 U.S. 622, 665-66, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (plurality opinion) ("As an institution, ... Congress is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon an issue as complex and dynamic as that presented here." (internal quotation marks omitted) ); Patsy v. Bd. of Regents of Fla. , 457 U.S. 496, 513, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982) (when "relevant policy considerations do not invariably point in one direction, and there is vehement disagreement over the validity of the assumptions underlying many of them[, t]he very difficulty of these policy considerations, and Congress' superior institutional competence to pursue this debate, suggest that legislative not judicial solutions are preferable").
Even so, these complex public policy determinations have important ramifications for the environmental legacy the next generation will inherit. And allowing plastic debris—bags, Styrofoam cups, water bottles, and similar pollutants—to migrate unchecked into the environment carries grave consequences that must not be ignored. Though I join the Court's opinion, I write separately to highlight the urgency of the matter. As a society, we are at the point where complacency has become complicity.
Plastic is a miracle material with many beneficial purposes, but the speed at which plastic refuse is proliferating is taxing our waste-management capacities. Improperly discarded plastics have become a scourge on the environment and an economic drain. And due to their buoyancy and propensity for wind-blown incursion, single-use plastic bags—the target of the Laredo ordinance—are a particularly pernicious form of this non-biodegradable menace. The transitory usefulness of these disposable containers comes at a genuine cost—they clog our landfills, impede our recycling efforts, kill domestic animals and wildlife (in excruciating ways), hamper flood control efforts, sully our seas, and stain our vistas. As the amicus briefs vividly relate, these so-called urban tumbleweeds are a blight and a nuisance, creating public eyesores, harming the ecology and our economic industries, and imposing significant costs on taxpayers and municipalities for litter abatement. The optimal solution to the problem of single-use plastics may be unsettled, but the adverse impact of leaving the matter wholly unaddressed is undeniable.
Laura Parker, We Made Plastics. We Depend on It. Now We're Drowning in It , Nat'l Geographic (June 2018), https://www.nationalgeographic.com/magazine/2018/06/plastic-planet-waste-pollution-trash-crisis/ (observing that "virtually half of the plastic ever manufactured has been made in the past 15 years" and "roughly 40 percent of the now more than 448 million tons of plastic produced every year is disposable, much of it used as packaging intended to be discarded within minutes after purchase").
See, e.g. , Amicus Curiae Brief of Rio Grande International Study Center, Ex. A, Retail Bag Tally 2008 v. 2017 (describing significant reduction of plastic bags in a vacant lot following enactment of Laredo's ordinance—145 vs. 10).
See, e.g. , Amicus Curiae Brief of the Hon. Jose Aliseda (cattle ranching); Amicus Curiae Brief of Texas Cotton Ginners' Ass'n & Billy Joe Easter (cotton and cattle industries); Amicus Curiae Brief of Texas Black Bass Unlimited, Edward Parten, Shane Cantrell, Joey Farah, Scott Hickman, J.T. Van Zandt, & Robert Webb (fishing industry, including tourism, recreation, and commercial activities); Amicus Curiae Brief of Texas Campaign for the Environment (recycling and composting industries); Amicus Curiae Brief of Turtle Island Restoration Network (marine-life conservationists).
See Burns & McDonnell, The Cost of Litter & Illegal Dumping in Texas: A Study of Nine Cities Across Texas (Feb. 2017), http://www.texansforcleanwater.org/uploads/1/0/9/3/10936519/cost_of_litter_and_illegal_dumping_final.pdf (documenting the enormous costs associated with littering and illegal dumping in nine Texas cities).
For one thing, animals are known to eat plastics, to devastating effect. Recent news reports about the disturbing death of a pilot whale recounted that the whale, who washed ashore the coast of Thailand earlier this month, had 80 pieces of plastic trash weighing 17 pounds in its stomach and vomited 5 plastic bags before perishing. This tragic incident is sadly emblematic of an increasingly lethal pandemic.
Dead whale found in Thailand with 17 pounds of plastic in its stomach , NBCNews.com , June 3, 2018, https://www.nbcnews.com/news/world/dead-whale-found-thailand-17-pounds-plastic-its-stomach-n879581; Travis Fedschun, Whale dies in Thailand after eating more than 80 plastic bags , FOXNews.com , June 3, 2018, http://www.foxnews.com/science/2018/06/04/whale-dies-in-thailand-after-eating-more-than-80-plastic-bags.html.
See, e.g. , Elaina Zachos, How a Seal Pup Died With a Plastic Wrapper in Its Stomach , Nat'l Geographic (May 31, 2018), https://news.nationalgeographic.com/2018/05/seal-plastic-death-climate-change-animals (observing that plastic pollution is so pervasive that "even the smartest marine animals are falling prey to the deadly epidemic"); Elaina Zachos, How This Whale Got Nearly 20 Pounds of Plastic in Its Stomach , Nat'l Geographic (June 4, 2018), http://www.nationalgeographic.com.au/animals/how-this-whale-got-nearly-20-pounds-of-plastic-in-its-stomach.aspx (chronicling the effects of plastic pollution in the world's oceans); The Problem of Marine Plastic Pollution , Clean Water Action , https://www.cleanwater.org/problem-marine-plastic-pollution (last accessed June 20, 2018) ("Marine plastic pollution has [caused] fatalities as a result of ingestion, starvation, suffocation, infection, drowning, and entanglement."); see also Parker, supra note 6 ("[O]cean plastic is estimated to kill millions of marine animals every year. Nearly 700 species, including endangered ones, are known to have been affected by it.").
Texas ranchers, fishermen, and aquatic conservationists have witnessed first-hand the deleterious effects of single-use plastic bags on livestock, turtles, fish, birds, and other indigenous wildlife, who often become ensnared in plastic refuse and frequently mistake it for food. The consequences are horrific, and pending affirmative legislative action, many amici have weighed in to champion local efforts to combat the growing problem of single-use plastics. As they say, quite irrefutably, preserving the well-being of livestock and wildlife is a biological imperative that is also vitally important to Texas industries, tourism, and recreational activities that fuel our state and local economies. Our state is a natural wonder with a staggering array of geological features unmatched by any other territory in the union—a majestic beauty that sets the backdrop for and is the mainstay of many of our industries.
See supra note 8; see also Amicus Brief of the City of Galveston; Amicus Brief of the City of Hous.; Amicus Brief of Envtl. Tex., Natural Grocers, & Bicycle Support Shop; Amicus Brief of Tex. Clean Water, Inc.; Amicus Brief of Tex. Mun. League & Laredo Merchs. Ass'n; Amicus Brief of Gerry Willis; Amicus Brief of Sen. Judith Zaffirini.
The Texas fishing industry, for example, is an economic powerhouse that creates thousands of jobs and involves millions of commercial and recreational participants, billions of dollars in retail sales, and at least a billion dollars in salaries and wages. Amici point out the various ways plastic-bag debris harms the fishing industry in significant ways—causing damage to boats from bags sucked into the engines, injuring fish and other sea life who ingest or become entangled in plastic rubbish, impairing navigation, and diminishing the recreational experience for wildlife tourists, among other things.
See Southwick Assocs., The 2011 Economic Benefits of Sportfishing in Texas , at iv, 5-10 (prepared for Tex. Parks & Wildlife Dep't) (Nov. 12, 2013), http://www.southwickassociates.com/wp-content/uploads/downloads/2013/11/Texas-Economic-Impacts-of-Sportfishing-2013-11-12.pdf.; U.S. Fish & Wildlife Serv., 2011 Nat'l Survey of Fishing, Hunting & Wildlife-Associated Recreation—Tex. , at 4-5 (rev. Jan. 2014), https://www.census.gov/prod/2013pubs/fhw11-tx.pdf.
See U.S. Envtl. Prot. Agency, Trash-Free Waters: Toxicological Threats of Plastic , https://www.epa.gov/trash-free-waters/toxicological-threats-plastic (accessed June 19, 2018) (plastic debris is directly harmful to the ecosystem through ingestion, entanglement, and alteration and indirectly by contributing to migration of invasive species and carries significant economic impacts to tourism, the fishing industry, and navigation).
Texas cattle ranchers are also alarmed about plastic-bag litter migrating into pastures and the danger—and economic consequences—of cattle consuming this refuse. As ruminate animals, cows are particularly susceptible to impaction from nondigestable foreign bodies, which creates a host of adverse physical consequences, including death. One amici described the cost-benefit analysis ranchers must undertake when plastic consumption by livestock is suspected:
See Amicus Curiae Brief of Texas Cotton Ginners' Ass'n & Billy Joe Easter at 1, 9-12.
See Akraiem A. & Abd Al-Galil, Rumen Impaction in Cattle Due to Plastic Materials , 23 J. Vet. Med. Res. 65, 66 (Aug. 2016) ("Clinically, rumen impaction with a non-metallic foreign body is characterized by clear signs of emaciation, dehydration, abdominal distension and asymmetry of the abdomen. Affected Animals showed a lack of feces in the rectum, foamy salivation, recumbency and inappetence.").
If a cattle rancher has reason to know that a cattle ingested a plastic bag[,] the rancher has three options: send the animal to slaughter earlier than planned to salvage some value from the animal, call a vet for examination and possible surgery, or wait to see what happens and maybe administer a laxative treatment. The economics of cattle ranching go against paying a veterinarian to examine and possibly perform surgery to remove plastic bags thought to be ingested by cattle.... Spending $500 or more on
surgery that may or may not be needed is rarely a viable option for animals that aren't worth much more than the veterinary bill.
See Amicus Curiae Brief of Texas Cotton Ginners' Association and Billy Joe Easter at 11.
Other agricultural industries, such as cotton farming, ginning, and related enterprises, similarly experience adverse economic consequences from wind-blown plastic refuse. In amicus briefing to this Court, the Texas Cotton Ginners' Association reports that "cotton harvests are increasingly contaminated by plastic carryout bag litter" because "errant plastic bags blowing in the wind frequently get snagged" near the bolls. The bags must be manually removed to prevent contamination, and few cotton farmers have the time or resources for this undertaking. Contamination of cotton bales results in deteriorated cotton quality and "directly influences the cotton's value." Consequently, the Association reports that members of the cotton industry "suffer financially from lower cotton prices due to increasingly contaminated bales."
Id. at 1, 6.
Id. at 7.
Id. at 7-8.
Id. at 1.
Taxpayers and municipalities also incur direct fiscal impacts arising from municipal efforts to ameliorate the effects of plastic-bag pollution. Before enacting the bag-ban ordinance, Laredo studied the effects and costs the city incurs from the use of single-use plastic bags, reporting an annual expense of at least $340,000 for plastic-bag remediation. A study of waste-management costs reveals that nine Texas cities representing more than 25% of the state's population—Austin, Corpus Christi, El Paso, Fort Worth, Houston, Laredo, Lufkin, Midland, and San Antonio—incur over $50 million annually for litter and illegal-dumping abatement and enforcement. Plastics of all varieties comprise a significant percentage of visible and micro litter.
Burns & McDonnell, supra note 9, at 1.
See, e.g. , Envtl. Res. Planning, LLC, Don't Mess with Texas: 2013 Texas Litter Survey (Aug. 23, 2013).
Still, it remains debatable whether laws trading one form of plastic bag for another—like Laredo's ordinance—are actually beneficial in the long run and whether any modest impact on litter abatement is outweighed by countervailing concerns, including enhanced risk of food-borne illness from bacteria in reusable grocery bags, environmental consequences from plastic-bag substitutes, and increased economic burdens on consumers and business owners. As to the requirements imposed by Laredo's bag-ban ordinance, a local merchant testified it is economically infeasible and practically impossible for small businesses to acquire bags that satisfy the ordinance's criteria; moreover, compared to single-use plastic bags, branding the ordinance-approved bags as a marketing tool is cost prohibitive, which impacts revenues. The store owner also testified that bags are necessary to prevent shoplifting, but an expectation that customers will bring or purchase reusable bags may not be realistic for border-town businesses that sell souvenirs and other small items and tchotchkes. Bag bans also preclude vendors from using existing stores of single-use plastic bags, resulting in losses that small businesses may not be able to absorb.
Thicker plastic bags reduce aerodynamics and lessen the propensity for wind-blown contamination, but they take longer to degrade, so when they are not recycled, the burden on landfills is increased. See Aaron Waters, Environmental Effects of the Single Use Bag Ordinance in Austin, Texas , Austin Res. Recovery , at 23 (June 10, 2015), https://www.austintexas.gov/edims/document.cfm?id=232679 ("So, if [the thicker 4 mil] plastic bags are not being recycled at our local facilities, what is their fate? More often than not, they make their way into our landfills, taking even longer to degrade than a traditional single use plastic bag as well as taking more space, both due to their thickness which is mandated by the ordinance.").
See id. at 22 ("While most citizen's [sic] find the bag ordinance to be beneficially [sic] to the environment, at least in terms of the reduction of litter, the results do not indicate a clear success. Indeed, the amount of single use plastic bags has been reduced, both in count and by weight. However, in their place, the larger 4 mil bags have replaced them as the go to standard when the reusable bag is left at home. This reusable plastic bag, along with the paper bag, has a very high carbon footprint compared to the single use bag."); see also, e.g. , Jonathan Klick & Joshua D. Wright, Grocery Bag Bans & Foodborne Illness , U. of Penn., Inst. for Law & Econ. Research Paper No. 13-2 (Jan. 2013), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2196481 (correlating an increase in hospitalization and death from food-borne illness with plastic-bag ban); Bag the Ban , Plastic Bags & the Environment , http://www.bagtheban.com/learn-the-facts/environment (accessed June 19, 2018) ("Ban and tax ordinances have never been successful at meaningfully reducing litter, waste or marine debris.... What they have been shown to do is heap unfair costs on low- and fixed-income families and add more red tape to local businesses."); Julian Morris & Brian Seashoes, How Green is that Grocery Bag Ban? , Policy Study 437 at 8-9 (June 2014), http://reason.org/files/how_green_bag_ban.pdf (concluding plastic bags make up less than 1% of litter).
The witness testified that single-use bags cost around 30 cents per bag with store branding, while higher-weight bags would cost 90 cents to $1.50 without advertising, as small businesses lack the buying power of larger commercial enterprises. The witness described "tremendous difficulty in finding 4 mil bags that would suit the sizes" needed and "extreme difficulty in finding companies that would even make bags the sizes that are the most popular size," but most importantly the expense is "mind boggling."
Lack of uniform regulation in matters of state-wide importance is also a significant concern. Local plastic-bag ordinances have non-local effects, including regulating non-local businesses, incentivizing the production of alternative materials that may carry their own environmental consequences, and determining the products that will ultimately end up in Texas landfills. At least eleven other Texas cities have adopted regulations limiting the use of plastic bags and authorizing alternatives, but the regulations are not uniform, which can create compliance challenges for non-local businesses. Depending on the locality, handles may or may not be required on bag alternatives, and the percentage of post-consumer recycled material in allowable bags may also differ. Labeling requirements also vary by locality: reusable bags are acceptable in some cities only if they visibly display words to the effect that the bags are reusable and recyclable while bags in others must display the country of origin, manufacturer, and a statement that the bag does not contain certain toxins. Minimum thickness of acceptable carry-out plastic bags likewise varies by jurisdiction—2.25 mil thick in Kermit; 4 mil thick in Austin, Brownsville, Corpus Christi, Laredo, and Sunset Valley; and in South Padre Island, any thickness that qualifies as not being "intended and constructed for single use." And, under at least one ordinance, stores are affirmatively required to either carry or provide certain types of bags. All these variations come with associated costs of production and compliance. A patchwork of disparate local regulations has the practical effect of allowing the most restrictive local ordinance to set the state-wide standard.
See Austin , Tex. , Code of Ordinances ch. 15-6, art. VII, §§ 15-6-121 to -124; Brownsville , Tex. , Code of Ordinances ch. 46, art. II, §§ 46-47 to -50; Corpus Christi , Tex. , Code of Ordinances ch. 22, §§ 22-1, -10; Eagle Pass , Tex. , Code of Ordinances ch. 16, art. II, div. 5, §§ 16-84 to -90; Fort Stockton , Tex. , Code of Ordinances ch. 12, art. I, §§ 12-1, 12-9; Freer , Tex. , Ordinance 2012-05 (Dec. 10, 2012); Kermit , Tex. , Code of Ordinances ch. 98, §§ 98.01–98.10; Laguna Vista , Tex. , Ordinance 2012-23 (Sept. 11, 2012); Laredo , Tex. , Code of Ordinances , ch. 33, art. VIII, §§ 33-501 to -508; Port Aransas , Tex. , Code of Ordinances ch. 10, art. 2, div. 2, §§ 10-26 to -30; S. Padre Island , Tex. , Code of Ordinances ch. 12, art. III, §§ 12-30 to 30.3; Sunset Valley , Tex. , Code of Ordinances ch. 93, §§ 93-60 to -63.
See Austin, Tex. Code of Ordinances ch. 15-6, art. VII, § 15-6-121(3)(b), (d) (requiring bags to have handles except for recyclable paper bags of certain dimensions), Eagle Pass , Tex. Code of Ordinances ch. 16, art. II, div. 5, § 16-84(c)(2)(D) (same); Sunset Valley Code of Ordinances ch. 93, § 93-60 (authorizing use of 4 mil recyclable plastic "with a consumer carry handle").
Compare Eagle Pass , Tex. Code of Ordinances ch. 16, art. II, div. 5, § 16-84(c)(2)(B) (40%), with Laredo , Tex. Code of Ordinances , ch. 33, art. VIII, § 33-504 (50%).
See Austin , Tex. Code of Ordinances ch. 15-6, art. VII, § 15-6-121(3)(a); Eagle Pass , Tex. Code of Ordinances ch. 16, art. II, div. 5, § 16-84(c)(1); Freer , Tex. , Ordinance 2012-05 (Dec. 10, 2012); Laguna Vista , Tex. , Ordinance 2012-23 (Sept. 11, 2012); Port Aransas , Tex. Code of Ordinances ch. 10, art. 2, div. 2, § 10-26; see also S. Padre Island , Tex. Code of Ordinances ch. 12, art. III, § 12-30 (symbol also allowed as an alternative).
See Kermit , Tex. Code of Ordinances ch. 98, § 98.01(K)(5).
Compare Kermit , Tex. Code of Ordinances ch. 98, § 98.01(K)(6), with Austin , Tex. Code of Ordinances ch. 15-6, art. VII, § 15-6-121(3)(c)(ii); Brownsville , Tex. Code of Ordinances ch. 46, art. II, § 46-47; Corpus Christi , Tex. Code of Ordinances ch. 22, § 22-1; Laredo , Tex. Code of Ordinances , ch. 33, art. VIII, § 33-504, Sunset Valley , Tex. Code of Ordinances ch. 93, § 93-60 (authorizing use of 4 mil recyclable plastic "with a consumer carry handle"), and S. Padre Island , Tex. Code of Ordinances ch. 12, art. III, § 12-30 (banning only those plastic carry-out bags that are "intended and constructed for single use"); see Merriam-Webster's Collegiate Dictionary 736 (10th ed. 2000) ("mil" is "a unit of length equal to 1/1000 inch used esp. in measuring thickness (as of plastic films)").
Kermit , Tex. Code of Ordinances ch. 98, §§ 98.03 ("All stores shall provide or make available to a customer only recyclable paper carryout bags or reusable bags for the purpose of carrying away goods or other materials from the point of sale, subject to the terms of this Chapter."); .05(A) ("All stores must provide reusable bags to customers, either for sale or at no charge."), .06(C) ("All stores must provide at the point of sale, free of charge, either reusable bags or recyclable paper carryout bags or both, at the store's option.").
As with many issues of regulatory concern, a solution satisfactory to all is no doubt elusive. But the legislative branch, not the judiciary, bears the unenviable task of making complicated policy decisions that balance the benefits of uniform regulation and the myriad burdens (financial or otherwise) that may be imposed on taxpayers, businesses, and the environment. Having expressly reserved the power to make such decisions, the ball is sequestered in the Legislature's court. I urge the Legislature to take direct ameliorative action or, as Section 361.0961(a)(1) contemplates, create a specific exception to preemption of local control. Standing idle in the face of an ongoing assault on our delicate ecosystem will not forestall a day of environmental reckoning—it will invite one.