Judge awards court costs in bungled bag ban
Prohibiting plastic legal, but DEC must pay for the confusion
New York’s rollout of its plastic bag ban last year was so muddled and confusing that a judge awarded court fees to the plaintiffs who had sued over the prohibition.
Acting state Supreme Court Justice Gerard Connolly ordered the state to pay despite ruling the ban was legal.
Saying that the Department of Environmental Conservation’s early directions on the ban were “incorrect” and “frivolous,” Connolly ordered the agency to pay part of the legal fees and court costs in a suit brought by a bagmaker Polypak Industries as well as a consortium of corner shops, small business owners and a grocery store that opposed the ban.
The lawsuit filed last year Albany County asked to overturn the ban, which, court papers in the case showed, sowed confusion over which types of reusable plastic bags were barred.
Initially, the ban regulations developed by DEC lawyers included exemptions for heavier plastic bags or bags that could be used 125 times. DEC at first also said that heavier bags of polystyrene or polypropylene were going to be exempt, but not the more common thin “film plastic” bags that Polypak made and most grocery stores used.
But as the legal challenge worked through the court, environmentalists in October complained DEC listed the supposed exemptions on its website. After the complaints, the listing was removed.
Connolly in his decision earlier this month made it clear that the ban pertained to all plastic noncloth bags.
“Reusable bags may not be distributed if they contain plastic of any kind, barring some further action by the Legislature,” Connolly wrote in his decision.
The DEC’S confusion and about-face were so egregious the agency should pay the court costs, the judge ruled. It wasn’t immediately clear how much it will cost. The plaintiffs have a month to tabulate court costs and document the expenses.
But the fact that the plaintiffs were awarded court costs, in a losing case, demonstrates what bag-ban supporters said early on: DEC caused confusion by including and then removing exemptions.
“This is quite significant that the judge is requiring DEC to pay attorneys’ fees,” said Judith Enck, a former regional EPA administrator and founder of Beyond Plastics, which aims to remove plastics from the waste stream.
“It is because DEC did not put out accurate information,” she said. “The law bans plastic bags. Full stop.”
Changes to the bag ban remains an open issues. Gov. Andrew Cuomo’s 2022 budget proposal released on Tuesday calls for legislation that would exempt from the ban some of the same types of bags that were at issue in the lawsuit.
Exemptions would classify as reusable bags made of materials like polypropylene or polystyrene and which could be used at least 125 times and carry 22 pounds for 175 feet.
In a prepared statement, DEC said the proposal was put in the budget plan to try and clear the confusion. “In response to the Court’s decisions, the budget proposal serves to clarify certain exempt bags and what constitutes a reusable bag, including examples of the types of fabric in reusable bags and examples of commonly used reusable bags that contain some plastic content, including polyester, woven polypropylene, and nylon bags, among other examples,” they said.
The development received just a half-hearted welcome from an industry spokesman who still believes the entire ban was ill-conceived.
“Proposing changes to the ban underscores what we have long said: Its current form is broken and unworkable. Unfortunately, the changes don’t make the law more workable,” said Zachary Taylor, director of the American Recyclable Plastic Bag Alliance.
He believes the Legislature should reconsider the ban.
Enck disagrees, saying the recent court decision affirms the existing ban. She said she hoped lawmakers turn down the exemption request as the budget is finalized later this year.
“They are going to try to get legislative permission to do what they tried to do last time,” Enck said.