Single-Use Plastic Bags MUST Go

Washington (GGM) Analysis | November 19, 2020 by Attorney Michael Wells, PodcastLegal Fact and Fiction

With the world in the grip of a pandemic, everyone wants something to make life less troublesome. Plastic bags make carrying things much easier. More items can be carried, which means you can avoid going back to your car in the rain or marching through the snow to retrieve that one last item. If only it were so simple. If only we did not have to worry about the environment.

On March 1, 2020, New York state’s ban on plastic bags became law. This means any entity authorized to collect sales taxes cannot distribute plastic bags. Failure to follow this law subjects the entity to up to a fine of up to five-hundred dollars per incident. The State of New York created the ban for good reason. Prior to the ban, New York State produced on average twenty-three billion bags per year, which filled already overflowing landfills, snagged recycling sorters, and wreaked havoc with birds to name just a few problems.

New York is not the only state that passed such a ban. Eight other states (California, Connecticut, Delaware, Hawaii, Maine, Oregon and Vermont) have passed similar laws.

Of course, not all states have such rules, and these states still produce millions of plastic bags. It does raise the question: can lawsuits force other states to ban plastic bags?

Maybe. It is probably a state by state process unless Congress passes a statute under, for example, the Interstate Commerce Clause, that says plastic bags somehow affect interstate commerce. That may sound far fetched, but it is not. The Interstate Commerce Clause allowed Congress to pass much of the civil rights legislation, and it is quite a big stick to bludgeon states into submission. Whether Congress wants to take this up remains doubtful. 

In states that have the plastic bans, the bans are not absolute. New York has some restrictions. Most notably restaurants that offer takeout food, which in the age of COVID-19, can create many plastic bags, are exempt. Although it is likely not “an exception that swallows the rule,” this limitation still creates a problem when so many more people are getting takeout and likely will for the foreseeable future as virus numbers explode. 

But what about other plastic or rubber?

Rubber glove use during the pandemic harms the environment, and there is no end in sight. While banning plastic bags everywhere will help, it will not solve all issues. It should still be done, however. 

More needs to be done because bags are not the only problem:

While plastic bags certainly make things easier to carry, their burdens to the environment certainly outweigh their benefits. The extent to which lawsuits or Congressional action will limit their use remains unknown. People should count on neither. It really is about personal choices, which must also be made with respect to other items people use. Over time it can all add up to pollution, death, and, as we have seen with COVID-19, a pandemic.

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