ANALYSIS COULD REVIVE FOAM BAN
Lawsuit stopped enforcement, city began environmental research
One year after San Diego halted enforcement of the city’s controversial ban on polystyrene foam food containers and similar products, city officials have launched a comprehensive analysis that could revive the ban.
The California Restaurant Association, which aggressively opposed the ban as an unfair hardship for small restaurants that still use foam products, filed suit in spring 2019 contending San Diego failed to fully analyze the impact of the ban.
City officials initially downplayed the importance of the lawsuit. But in late 2019 they reversed course and announced San Diego would halt enforcement, just before the ban took full effect, so they could conduct the analysis. Called an environmental impact report, it will analyze the impact of the new law on pollution, traffic and other elements of the environment. It is expected to be complete by this summer, so enforcement of the ban could resume.
City officials have not provided any reason why they waited a full year to launch the analysis.
Leaders of the local environmental community this week hailed the city’s decision to move forward. They also repeated previous predictions that the analysis will determine the ban has a positive impact on the environment, not a negative one.
Polystyrene is not biodegradable and has been blamed for poisoning fish and other marine life and damaging the health of people who eat seafood. The material continuously breaks into steadily smaller pieces, allowing it to enter local waterways and easily get consumed by wildlife.
The lawsuit filed by the restaurant association, a statewide lobbying group, contends the ban would damage the environment by requiring restaurants to use heavier replacement packaging instead of the foam containers.
“Evidence before the city when it
adopted the ordinance uniformly showed that a ban on expanded polystyrene, which is recyclable, will not reduce litter or trash and will result in polystyrene foam being substituted with replacement products that have far greater environmental impacts and result in increased litter and trash,” the lawsuit says.
Alex Ferron, chair of the San Diego Surfrider Foundation, said Thursday that the litigation is “grasping at straws.” She said the analysis will clearly show the ban benefits the environment instead of damaging it.
The restaurant association declined to comment when the city halted enforcement, and officials didn’t return phone calls this week.
In addition to food containers used by restaurants, the ban applies to polystyrene egg cartons, coolers, ice chests, pool toys, dock f loats and mooring buoys. If the ban is revived, residents won’t be able to use those products and retail stores won’t be able to sell them.
The San Diego law also would make it illegal to distribute plastic utensils or straws unless requested by customers.
San Diego’s decision to retreat from its ban and conduct an environmental impact report could affect more than 120 other California cities and counties that have adopted bans on polystyrene products in recent years.
None of those cities conducted environmental impact reports. San Diego, the largest city in the state to adopt a ban, was the first and only city to face a lawsuit for not doing an environmental impact report.
“This is a double-edged sword,” Ferron said. “We’re ecstatic to see the city begin the EIR, which we’ve waited a long time for. But it’s frustrating to see that the opponents successfully kicked the can down the road.”
If the ban takes effect this summer, that will be more than three years after then-Councilman Chris Ward first proposed it in March 2018.
Ward, now a state Assemblyman, said Thursday that the ban still has had a significant impact despite the city’s decision to halt enforcement.
That’s because outreach and education about the new law prompted many restaurants and other businesses to voluntarily shift away from foam. And some others shifted away because they expected the law to take effect, Ward said.
“The good news is that it still got the conversation out there,” Ward said. “This just added a wrinkle.”
The city’s decision not to enforce the law was welcome news to many small restaurants and other businesses that use foam products, which are less expensive than paper and plastic alternatives.
Nearly all national and regional restaurant chains long ago stopped using polystyrene in response to lobbying from environmental groups and backlash from customers concerned that foam isn’t biodegradable.
But many taco shops, pizza parlors, convenience stores and other small businesses continue to use foam products to save money.
Ward said he’s grateful to the local environmental community and the many local restaurants that have stopped using foam despite the lack of legislation banning it.
Ferron said she’s pleased the litigation against San Diego hasn’t discouraged other cities from adopting polystyrene bans.
“I work a lot with smaller cities and while it comes up in the discussion, it doesn’t impact them,” she said. “It actually makes them cross their T’s and dot their I’s more carefully.”
In San Diego County, other cities with polystyrene bans are Encinitas, Solana Beach, Del Mar and Imperial Beach.
San Diego held a “scoping” meeting Dec. 16 to determine what to study in the EIR. Comments from the public are due by Monday.