Court Rules Against Athens’ Plastic Bag Ban

Eliason said in an email that since May 2023 the city has never fined a business for non-compliance with the ordinance.

SEATTLE (Scrap Monster):  The city of Athens may not enforce its ban on single-use plastic bags because it violates state law, a local judge ruled on Aug. 28.

According to the judgment entry, Athens County Court of Common Pleas Judge George McCarthy found that the city’s Chapter 11.13 (created by Athens City Council Ordinance 0-25-23 to regulate single-use plastic bags) violates state law. He issued a permanent injunction against the city, meaning the city may not enforce the ordinance. 

“We’re disappointed with Judge McCarthy’s ruling. We plan to discuss this result with City Council to determine our next steps in protecting Athens’ Home Rule authority,” Athens City Law Director Lisa Eliason said in an email.

The city has 30 days to appeal. It may also request a stay of the court’s orders, which would stall the injunction until the appeals court reaches a verdict. In the meantime, the ordinance banning single-use plastic bags is no longer effective. 

Eliason said in an email that since May 2023 the city has never fined a business for non-compliance with the ordinance. The ordinance authorized a $150 fine for business non-compliance. 

The city argued that its single-use plastic bag ban was allowed under Ohio’s Home Rule provision. The state argued that Ohio Revised Code 3736.021 governs the public’s usage of single-use plastic bags — and overrides home rule.

Judge McCarthy found that the city’s prohibition on single-use plastic bags is in “direct conflict” with state law. Moreover, McCarthy found that the usage of single-use plastic bags is an issue governed by the state’s solid waste management plan.

According to the judgment entry, the city “suggested” that single-use plastic bags are not recyclable — at least locally. But the court also found that single-use plastic bags are recyclable, at least in part because of local organizations’ partnerships with NexTrex, a national organization that facilitates the collection of film plastic for recycling. 

In his ruling, McCarthy wrote that “it is more likely that the City’s recycling services refuses to accept them for recycling because they may tend to jam the machines. … But the bags do not necessarily go to the landfill even though they are not accepted by Athens’ single stream recycling service. The single-use plastic bags can be reused by consumers or returned to several stores that accept such bags. And those bags can go on to be recycled.”

“The public interest of Ohioans is served by continuing to allow them to decide what bags to use,” the judgment entry also stated. 

The ruling’s mention of NexTrex — along with Facebook posts and an NPR story from 2022 — could give the city grounds to overturn McCarthy’s decision, according to former common pleas court judge Tom Hodson.

“The parties agreed that the original facts were not in dispute, but then the court, on its own, added these additional allegations of fact from sources beyond the record, like Facebook,” Hodson wrote in an analysis of the decision for his Inside Courts column. “The city may argue, on appeal, that these new alleged facts were not agreed upon by the parties and may in fact be disputed — thereby, negating one of the criteria for ordering a summary judgment.”

Courtesy: www.athensindependent.com

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