On February 28, 2020, an Order was signed whereby the New York State Department of Environmental Conservation (“DEC”) agreed to refrain from taking enforcement action until April 1, 2020 with respect to the New York State Bag Waste Reduction Act (the “Bag Waste Reduction Act”). Keane & Beane, P.C. recently issued a legal alert on the Bag Waste Reduction Act available at https://www.kblaw.com/2020/02/18/the-new-york-state-bag-waste-reduction-act-takes-effect-march-1-2020/.
Two days before the Bag Waste Reduction Act was to take effect, a plastic bag manufacturer and an association of New York City bodega owners filed a lawsuit in New York State Supreme Court, Albany County, against DEC. The lawsuit challenges the plastic bag ban and DEC’s recently adopted regulations (6 NYCRR Part 351).
Plaintiffs argue that the plastic carryout bag ban is unconstitutional, overly vague, conflicts with other laws and is arbitrary and capricious. Plaintiffs also argue that DEC’s recently adopted regulations implementing the ban on single-use plastic bags conflict with the provisions of the Bag Waste Reduction Act.
Plaintiffs’ main argument is that the law does not allow DEC to create its own definition of exempt reusable bags. The Bag Waste Reduction Act specifically defines reusable bag as a bag: (a) made of cloth or other machine washable fabric that has handles; or (b) a durable bag with handles that is specifically designed and manufactured for multiple reuse. Comparatively, DEC’s regulations define reusable bag as a bag that is (1) either made of (a) cloth or other machine washable fabric; or (b) other non-film plastic washable material at least 10 millimeters thick; (2) has at least one strap or handle that does not stretch and is fastened to the bag in such a manner that it allows the bag to meet the strength and durability standards in the bullet point below; (3) has a minimum lifespan of 125 uses, with a use equal to the ability to carry a minimum of 22 pounds over a distance of at least 175 feet; and (4) has a minimum fabric weight of 80 grams per square meter (GSM) or equivalent for bags made of any non-film plastic of natural, synthetic, petroleum based, or non-petroleum-based origin, including woven or non-woven polypropylene (PP), polyethylene-terephthalate (PET), cotton, jute, or canvas.
Concern has been expressed by trade groups that the requirement that reusable plastic bags must be at least 10 millimeters thick to be exempt under the Bag Waste Reduction Act. The plastics industry and retailers have objected on the grounds that this restriction severely limit the number of reusable bags available and leaves retailers unable to provide any type of reusable bag; while environmentalists meanwhile have objected on the grounds that plastic bags over 10 millimeters thick are still plastic and should be prohibited.
The Court Order does not affect the local laws in New York City, Suffolk County and Tompkins County requiring that the 5-cent paper carryout bag reduction fee must be charged on paper carryout bags and does not affect any paper bag fee imposed by any local law adopted by a municipality prior to the adoption of the Bag Waste Reduction Act.
The return date for the underlying Article 78 challenge to the regulations and law is May 1. Additional briefs on a preliminary injunction must be filed by March 24. During this time, the Bag Waste Reduction Act will remain effective.
Should you have any questions regarding the New York State Bag Waste Reduction Act, please contact Drew Gamils, Esq.
