New York State may go ahead with its ban on most single-use plastic grocery bags.
But acting Supreme Court Justice Gerald Connolly, in his 47-page opinion issued on Thursday, also invalidated a section of the state Department of Environmental Conservation’s bag regulations that added reusable, thicker plastic bags not made of film to the list of allowed exemptions.
The regulations were originally intended to go into effect in March, but enforcement was delayed largely because of the COVID-19 outbreak. Many stores did not allow people to bring their own reusable cloth bags in the early days of the outbreak over concerns that bags not properly cleaned could carry the coronavirus or other pathogens. Stores in the city were required to collect a 5-cent fee on paper bags requested by customers.
The law had been challenged by Poly-Pak Industries, a Long Island bag manufacturer; The Bodega and Small Business Association, and two grocery store owners.
“The Court’s decision is a victory and a vindication of New York State’s efforts to end the scourge of single-use plastic bags and a direct rebuke to the plastic bag manufacturers who tried to stop our law,” DEC Commissioner Basil Seggos said in a press release sent out by his office. “DEC encourages New Yorkers to transition to reusable bags whenever and wherever they shop and to use common-sense precautions to keep reusable bags clean.”
The law has been in effect since March 1, but the DEC will be providing notice to impacted stores and businesses regarding the initiation of DEC’s enforcement plans. Published reports say the state will take 30 days to clarify its requirements to store owners.
Attempts at state and city laws banning single-use bags go back to 2017. New York City alone has been spending more than $12 million per year to dispose of the bags, which government and environmental groups have criticized for their almost-ubiquitous presence in the city’s streets, sidewalks, trees and waterways.
The plaintiffs argued that the Bag Reduction Act was vaguely written; and improperly favored manufacturers of cloth or paper bags over those manufacturing the plastic film bags. They also claimed that prohibiting stores from giving out plastic bags was in direct conflict with the existing Bag Recycling Act, which requires the practice.
While the DEC’s ensuing regulations added an exemption for plastic bags at least 10 mils thick — about the thickness of 10 pieces of paper, according to published sources — it was the only one of five causes of action on which Connolly, who sits in Albany, sided with the plaintiffs.
Connolly, on page 40 of his decision, wrote that the DEC exceeded its authority when adding the exemption in its bag regulations “in plain contradiction’” of the new law.
“[T]he Bag Regulations expand this list of exempt plastic carry-out bags as set forth ... to include ‘reusable bag[s]’ which include [among other things], bags made of certain plastic, in contravention of the plain dictate of the statute,” he wrote.
But the justice also wrote that it is well within the Legislature’s purview to go back and add the exemption if it so chooses. He dismissed all the other complaints.