by |  May 13th, 2015
  

This commentary originally appeared in the Dallas Morning News on May 13, 2015.

Should the city of Dallas be able to ignore state laws that are already on the books and enact its own rules and regulations?

That’s the question at the center of a newly filed lawsuit that takes aim at the city’s controversial plastic bag fee ordinance that, for right now, levies a 5-cent “environmental fee” on single-use shopping bags.

The lawsuit, brought by a coalition of plastic bag manufacturers and recyclers, says that the city’s single-use bag fees, which took effect in January, violate decades-old state law that protects consumers and prevents municipal overregulation.

To back up their claims, the group bringing the lawsuit points to two separate provisions of the Health and Safety Code that provide straightforward instruction, stating that:

“A local government or other political subdivision may not adopt an ordinance, rule or regulation to:

prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law; [or]

assess a fee or deposit on the sale or use of a container or package.”

The law, in this case, looks pretty clear — local governments are prohibited from banning or restricting the sale or use of “containers,” like single-use plastic bags.

It is, perhaps, one thing for the city to have enacted its plastic bag fee in ignorance of these particular provisions — but it’s another thing altogether for the city to have known about these state prohibitions and acted in spite of them.

That seems to be what happened here.

In August, well before the implementation of Dallas’ plastic bag fee, then-Attorney General Greg Abbott issued a widely received advisory opinion finding that municipal ordinances restricting or prohibiting single-use plastic bags had probably violated these exact two sections of state law. As the opinion notes: “Neither a home-rule city nor a general-law city may adopt an ordinance that is inconsistent with the Texas Constitution or Texas statutes.”

News of the attorney general’s decision was picked up by the media, including TheDallas Morning News, presented to the Dallas city attorney and trumpeted by conservative organizations, including the Texas Public Policy Foundation. All of which was, of course, promptly ignored by the city, which began carrying out its environmentalist agenda a short time later.

Now the city finds itself embroiled in a potentially disastrous lawsuit.

Whatever the outcome of the lawsuit, we should all agree that local governments ought to observe and abide by state law. After all, local governments are creatures of the state and, as such, have an obligation to respect the primacy of state law.

That’s clearly not been the case here. It’s a troubling enough matter to have caught the attention of several state lawmakers looking to rein in local governments such as the city of Dallas.

A number of bills are making their way through the legislative process to re-establish the basic fact that local governments cannot pass rules, regulations and ordinances that contravene state law. Local governments should not be able to do as they please where the state has spoken, no matter how loud the cries of “local control.”

Of course, it’s not just the city of Dallas that has it out for plastic bags, but Dallas is the latest and the largest of the nearly dozen cities to have enacted this sort of improper policy. You can be sure that other cities are waiting and watching to see how everything unfolds.

Whether through the courts or through the legislative process or both, it is critical that local government overreach, oftentimes masquerading as local control, be corrected and the proper boundaries re-established.

James Quintero is the director of the Center for Local Governance at the Texas Public Policy Foundation. Reach him at jquintero@texaspolicy.com.


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