Cities must comply with the State’s black-letter law — even if they disagree with the policy behind it, or believe it should be left to “local control.”
That’s the thrust of a brand-new Amicus Brief filed by legal experts with Think Local Liberty, a project of the Foundation aimed at combating local government overreach. The Brief was filed in support of the Laredo Merchants’ Association’s case against the City of Laredo’s preempted plastic bag ban—a problematic policy that’s been adopted by many other cities as well. More from the Brief:
Local control is not unlimited or unchecked. Like all government power, local control must be confined and monitored to avoid abuse.
. . . .
Texas law prohibits local governments from restricting the use of specific types of bags, including single-use plastic bags. . . .
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.
Texas Health and Safety Code Section 361.0961(a)(1). In 2014, the Texas Attorney General made this explicitly clear, stating:
[S]ection 361.0961 would likely prohibit a city ordinance adopted for solid waste management purposes that prohibited single-use plastic bags.
Tex. Atty Gen. Op. FA-1078, Aug. 29, 2014, at 4.
Nevertheless in 2015, the City [of Laredo] passed an ordinance prohibiting the provision of single-use plastic bags.
. . . .
To preserve the rule of law, courts must intervene and enforce the law when it is violated — particularly when the government is the transgressor.
The case is currently before the Fourth Court of Appeals and has yet to be decided. Regardless of the court’s decision, one thing is clear: cities are subject to the rule of law, and must be held accountable.