In 2012, the City and County of San Francisco (the City) enacted an ordinance which expanded existing restrictions on the use of "checkout bags" by retail establishments in the City (the 2012 ordinance). Appellant Save the Plastic Bag Coalition (the Coalition), a group of plastic bag manufacturers and distributors, filed a petition for a writ of mandate seeking to invalidate the 2012 ordinance on several grounds. The superior court denied that petition and entered judgment in favor of the respondents, the City and two of its departments. On appeal, the Coalition contends the 2012 ordinance is invalid because (1) it does not comply with the requirements of the California Environmental Quality Act, Public Resources Code section 21000 et seq. (CEQA) and (2) it is preempted by the California Retail Food Code, Health and Safety Code section 113700 et seq. (the Retail Food Code).
In April 2007, the City enacted San Francisco Ordinance No. 81-07, a "Plastic Bag Reduction Ordinance" which required the "use of compostable plastic, recyclable paper and/or reusable checkout bags" by large supermarkets and retail pharmacies located within the City.
In 2010, a member of the City's board of supervisors initiated a project to enact an ordinance which would, inter alia, extend the existing restrictions on the use of checkout bags to apply to all retailers and food establishments in the City, require stores to charge customers for checkout bags, and institute a community outreach program to encourage reusable bag use.
On November 10, 2011, the City's planning department issued a "Certificate of Determination of Exemption" for the project. The planning department determined that the proposed ordinance was a regulatory action that would protect natural resources and the environment generally and was, therefore, categorically exempt from further CEQA review under sections 15307 and 15308 of the CEQA "Guidelines." (Cal. Code Regs., tit. 14,
On November 14, 2011, a draft of the proposed ordinance was presented to the City's board of supervisors at a public meeting where public comment was invited. Although the overwhelming majority of the speakers supported the proposal, an attorney representing the Coalition opposed it and put the City on notice that the Coalition would file a lawsuit to preclude enforcement of the proposed ordinance. Over the course of the next several weeks, the Coalition submitted hundreds of pages of "legal objections" to the proposed ordinance along with "supporting exhibits."
In February 2012, the City enacted San Francisco Ordinance No. 33-12, i.e., the 2012 ordinance. The City set forth its findings in section 2 of the ordinance:
The 2012 ordinance amended the San Francisco Environmental Code by, inter alia, (1) extending existing restrictions regarding the provision of checkout bags to apply to all retail stores; (2) imposing a new 10-cent charge for single-use check-out bags, which could be used if they were either a compostable plastic bag or a paper bag made with a minimum of 40 percent recycled content; and (3) establishing an outreach and education program for stores and customers. The 2012 ordinance provided that the new restrictions would become effective as to all retail stores, except retail food establishments, in October 2012, and to retail food establishments in July 2013.
On February 29, 2012, the Coalition filed a petition for a writ of mandate under CEQA and a complaint to invalidate the 2012 ordinance on the ground it was preempted by the Retail Food Code. On June 14, 2012, the superior court denied the Coalition's motion for a preliminary injunction and stay of enforcement of the ordinance. On August 27 and 28, 2012, the Hon. Teri L. Jackson conducted a hearing on the merits of the Coalition's petition for writ of mandate and complaint alleging preemption. On September 20, 2012, the court filed an order denying the writ petition and dismissing the preemption claim. The following week, the court denied the Coalition's motion to stay implementation of the 2012 ordinance pending appeal. Judgment was filed on November 7, 2012, and the Coalition filed a notice of appeal the following day.
The Coalition's first claim of error on appeal is that the 2012 ordinance is invalid because the City violated CEQA by finding that the ordinance was categorically exempt from further environmental review and, therefore, could be adopted without first preparing an environmental impact report (EIR).
CEQA embodies California's strong public policy of protecting the environment; its goals are to: "(1) Inform governmental decision makers and the public about the potential, significant environmental effects of proposed activities. [¶] (2) Identify ways that environmental damage can be avoided or significantly reduced. [¶] (3) Prevent significant, avoidable damage to the environment by requiring changes in projects through the use of alternatives or mitigation measures when the governmental agency finds the changes to be feasible. [¶] (4) Disclose to the public the reasons why a governmental agency approved the project in the manner the agency chose if significant environmental effects are involved." (Guidelines, § 15002.)
In the present case, there is no dispute that enacting the 2012 ordinance was a CEQA project. The issues on appeal pertain to decisions the City made during the second step of the CEQA process when it concluded that the proposed 2012 ordinance was categorically exempt from further environmental review and therefore could be approved and adopted without proceeding to step three and preparing an EIR. Specifically, the Coalition contends that (1) the City was precluded by law from relying on a categorical exemption for a project of this nature or, alternatively, (2) the 2012 ordinance falls within the "unusual circumstances" exception to the categorical exemptions upon which the City relied.
Because a categorical exemption is premised on a finding that the class of projects does not have a significant effect on the environment, "`an agency's finding that a particular proposed project comes within one of the exempt classes necessarily includes an implied finding that the project has no significant effect on the environment. [Citation.] On review, an agency's categorical exemption determination will be affirmed if supported by substantial evidence that the project fell within the exempt category of projects.'" (Save the Plastic Bag Coalition v. County of Marin (2013) 218 Cal.App.4th 209,
Here, however, the Coalition does not actually dispute that this record contains substantial evidence to support the City's determination that the 2012 ordinance fell within the two categorical exemptions at issue in this case. Instead, the Coalition attempts to establish that the City committed two legal errors by relying on categorical exemptions rather than preparing an EIR.
First, the Coalition contends that another case in which it was involved, Manhattan Beach, supra, 52 Cal.4th 155, precludes any city larger than the City of Manhattan Beach from relying on a categorical exemption to avoid preparing an EIR before enacting an ordinance that restricts the use of plastic bags within its jurisdiction.
Manhattan Beach, supra, 52 Cal.4th 155, addressed an ordinance banning the use of plastic bags at the point of sale in the City of Manhattan Beach. The city enacted the ordinance over the objection of the Coalition and without preparing an EIR after conducting an initial study which resulted in a determination that the ordinance would not have a significant negative effect on the environment. The trial court found that the Coalition had made a fair argument that the plastic bag ban would increase the use of paper bags causing negative environmental consequences and that a full CEQA review was required. Pursuant to this finding, the court issued a writ of mandate barring enforcement of the ordinance until the city prepared an EIR. (52 Cal.4th at pp. 160-162.) However, the California Supreme Court reversed.
The Manhattan Beach court found, among other things, that the Coalition had not established a "fair argument" that the plastic bag ban would increase environmental damage. (Manhattan Beach, supra, 52 Cal.4th at p. 175.) The Coalition's evidence, several studies concluding that the "`life cycle'" of paper bags had a greater environmental impact than the "`life cycle'" of plastic bags, established that "the manufacture, transportation, recycling, and landfill disposal of paper bags entail more negative environmental consequences than do the same aspects of the plastic bag `life cycle.'" (Id. at p. 172.) However, the court held: "When we consider the actual scale of the environmental impacts that might follow from increased paper bag use in Manhattan Beach, instead of comparing the global impacts of paper and plastic bags, it is plain the city acted within its discretion when it determined that its ban on plastic bags would have no significant effect on the environment." (Ibid.) The court also found that the city "properly concluded that a ban on plastic bags in Manhattan Beach would have only a miniscule
In reaching its decision, the Manhattan Beach court also rejected the Coalition's argument that the ordinance would have negative cumulative impacts when considered in conjunction with other similar laws enacted elsewhere in the state. (Manhattan Beach, supra, 52 Cal.4th at p. 174.) Questioning whether that issue was properly before it, the court nevertheless found "that Manhattan Beach is small enough that even the cumulative effects of its ordinance would be negligible." (Ibid.) In a footnote, the court also stated that "[w]hile cumulative impacts should not be allowed to escape review when they arise from a series of small-scale projects, that prospect does not appear in this case. According to plaintiff, the movement to ban plastic bags is a broad one, active at levels of government where an appropriately comprehensive environmental review will be required." (Id. at fn. 10.)
In the present case, the Coalition's reliance on Manhattan Beach is perplexing. The fact that the City of Manhattan Beach was able to enact its plastic bag ban without preparing an EIR certainly does not strengthen the Coalition's position here. Furthermore, we find nothing in that opinion which supports the Coalition's specific contention that the City cannot rely on a categorical exemption in this case because it is larger than the City of Manhattan Beach. Indeed, Manhattan Beach was not a categorical exemption case at all; during the second step of its CEQA inquiry the city conducted an initial review which resulted in a negative declaration. (Manhattan Beach, supra, 52 Cal.4th at pp. 161-162.) And, although the Manhattan Beach court was not asked to address any CEQA categorical exemption, it nevertheless observed that an alternative available to the city during the second stage of its CEQA review was to determine that the project was categorically exempt. (52 Cal.4th at p. 171, fn. 8.)
The Coalition literally ignores these pertinent facts and, instead, bases its argument on an isolated phrase that appears in the Manhattan Beach opinion. According to the Coalition, when the Manhattan Beach court used the term "comprehensive environmental review" in its written decision, it made a ruling that "a comprehensive environmental review" would be required before a plastic bag ban could be adopted by any city larger than Manhattan Beach. (Manhattan Beach, supra, 52 Cal.4th at p. 174, fn. 10.) And, the Coalition reasons, since a comprehensive environmental review necessarily "precludes categorical exemptions," Manhattan Beach necessarily precludes the City from relying on a categorical exemption.
Magan, supra, 105 Cal.App.4th 468, also supports our conclusion. That case involved a Kings County ordinance regulating the amount of sewage sludge that could be deposited on agricultural lands. In affirming the county's determination that the adoption of the ordinance was categorically exempt from CEQA review under Guidelines section 15308, the Magan court never even questioned that the ordinance was a regulatory action within the meaning of the section 15308 categorical exemption. (105 Cal.App.4th at p. 477.) The Coalition discounts Magan because the Magan court did not actually consider whether the section 15308 exemption excludes the actions of a legislative body. The fact remains, however, that the ordinances in both Magan and County of Marin are examples of a county exercising regulatory powers afforded to it by the California Constitution.
The Coalition contends that even if the City was not precluded by law from relying on a categorical exemption, the 2012 ordinance falls within the "unusual circumstances" exception to the categorical exemptions upon which the City relied.
Preliminarily, the Coalition contends that the City forfeited its "right" to challenge the Coalition's claim that the unusual circumstances exception applies to the 2012 ordinance because it failed to make findings responsive to the each of the Coalition's specific objections before it adopted the 2012 ordinance without preparing an EIR. Ironically, the Coalition waived this forfeiture claim by asserting it for the first time in its reply brief. Furthermore, the premise of this theory is undermined by the very case upon which the Coalition relies, Davidon Homes, supra, 54 Cal.App.4th 106.
Nevertheless, the Coalition contends that the "principle" from Davidon Homes that we quote above also applies in a categorical exemption case. However, that quoted statement is obviously tied to the unique language of the common sense exemption. Indeed, the Davidon Homes court expressly focused on the substantive distinctions between the common sense exemption and other categorical exemptions established by the Guidelines when it resolved the very different issues presented by that appeal. (Davidon Homes, supra, 54 Cal.App.4th at pp. 115-117.) In light of those distinctions, we are concerned by the Coalition's serious mischaracterization of Davidon Homes. That case does not lend any support to the Coalition's forfeiture theory.
Turning to the substantive claim of error, the Coalition contends that the City abused its discretion by disregarding evidence that the Coalition produced before the 2012 ordinance was enacted which clearly established that the ordinance falls within the unusual circumstances exception to the categorical exemptions upon which the City relied.
Courts disagree about the proper standard of judicial review regarding factual determinations as to whether an otherwise exempt project falls within the unusual circumstances exception to a categorical exemption. (Hines v. California Coastal Com. (2010) 186 Cal.App.4th 830, 855 [112 Cal.Rptr.3d 354].) "`Some courts have relied on cases involving review of a negative declaration, holding that a finding of categorical exemption cannot be sustained if there is a "fair argument" based on substantial evidence that the project will have significant environmental impacts, even where the agency is presented with substantial evidence to the contrary. [Citation.] Other courts apply an ordinary substantial evidence test ..., deferring to the express or implied findings of the local agency that has found a categorical exemption applicable. [Citations.]' [Citations.]" (Id. at p. 856.)
Without acknowledging this split in authority, the Coalition claims it made a "fair argument" that the unusual circumstances exception applies. In other words, without disputing that substantial evidence supports the City's contrary finding, the Coalition maintains that it produced other substantial
The Coalition's "fair argument" is extremely convoluted, but appears to take two primary forms. First, the Coalition posits that the "presence of 15.9 million tourists and hundreds of thousands of commuters each day constitutes `unusual circumstances'" precluding the City from relying on a categorical exemption. The Coalition's theory is that the 2012 ordinance will increase the use of single-use paper and compostable bags without decreasing the use of reusable bags at all because tourists and commuters will "almost never" bring their own reusable bags to the City and, even if they do, they are likely to underuse them before throwing them away, which is bad for the environment.
The Coalition has failed to cite any evidence in the record to support their factual claim that tourists and commuters who visit San Francisco will undermine the positive environmental impact goals of the 2012 ordinance. Instead, they rely solely on arguments that were made by Coalition attorneys during the administrative proceedings. Thus, we summarily reject this unsupported theory.
The Coalition's second argument is that "Plastic bag bans are unusual because, while they purport to protect the environment, paper and compostable bags and underused reusable bags are worse for the environment." In other words, the Coalition's theory is that a plastic bag ban is itself an unusual circumstance under CEQA because it targets an environmental problem by creating a worse environmental problem. As substantial proof of this theory, the Coalition relies on six studies which allegedly show that the overall "life cycle" of a paper bag has a greater negative impact on the environment than the life cycle of a plastic bag. The Coalition contends that several of these studies also support the conclusion that compostable bags and underused reusable bags are also worse for the environment than plastic bags.
Despite the cautionary message in Manhattan Beach, the Coalition continues to rely exclusively on global impact studies regarding the life cycle of the various types of bags that exist in this world. Instead of heeding the Supreme Court's warning, the Coalition summarily distinguishes Manhattan Beach because it involved a smaller city than the City of San Francisco. However, we are not convinced that global impact studies are a fair or accurate mechanism for measuring the impacts of a local ordinance which is clearly tailored to address the specific environmental goals of that specific locality.
Even if these life cycle studies do have some arguable relevance when evaluating the impact of a citywide plastic bag ban, they do not constitute substantial evidence supporting the Coalition's fair argument in this particular case because the 2012 ordinance is not a plastic bag ban, it is a checkout bag ordinance. Its goal is to reduce all single-use bags in San Francisco by banning single-use, noncompostable plastic checkout bags, and imposing a 10-cent bag charge when customers are provided with a single-use paper or compostable plastic bag, and instituting a community outreach program to encourage reusable bag use in the City. Thus, in reaching the conclusion that this project was categorically exempt, the City reasoned that "[b]ecause the proposed project would ban single-use plastic bags and impose a mandatory charge on single-use paper and compostable bags at all `stores' in San Francisco and the proposed project would include a public education campaign aimed at promoting reusable bags, the proposed project would protect the environment and not have a significant impact on the environment."
The Coalition argues that the 10-cent fee for providing a compostable or paper bag may not be taken into account in determining whether the categorical exemptions apply. According to the Coalition, that fee is a "mitigation" measure the potential effectiveness of which can only be evaluated as part of a comprehensive environmental review. We disagree.
The Guidelines define a "project" as including "the whole of an action, which has a potential for resulting in either a direct physical change in the
Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329 [122 Cal.Rptr.3d 781] (Wollmer) supports our conclusion. In that case, the trial court denied a petition for a writ of mandate to block an affordable housing development in Berkeley. (Id. at p. 1338.) The Wollmer court affirmed that decision and upheld the city's determination that the project was categorically exempt under Guidelines section 15332. (193 Cal.App.4th at pp. 1347-1354.) One aspect of that project, which was an integral part from its inception, was that its developers "would dedicate land for a left turn lane on Ashby Avenue, thereby reducing traffic impacts to less than significant, a necessary condition for the [CEQA] exemption." (Id. at p. 1352.) The Wollmer court rejected the appellant's contention that this aspect of the project was a "mitigation measure," finding instead that the dedication of a five-foot right-of-way was "a component of the project that assisted the City with an existing traffic issue." (Ibid.) The court reasoned that the traffic problem preexisted the proposed project and the dedication that improved that problem "became part of the project design — it was never a proposed mitigation measure." (Id. at p. 1353.)
The Coalition mistakenly relies on Salmon Protection & Watershed Network v. County of Marin (2004) 125 Cal.App.4th 1098 [23 Cal.Rptr.3d 321] (Salmon Protection) and Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165 [61 Cal.Rptr.2d 447] (Azusa). Those cases involved proposed subsequent actions by the project's proponent
The Coalition's second claim on appeal is that the 2012 ordinance is invalid because it is preempted by the Retail Food Code. (Health & Saf. Code, § 113703 et seq.)
In the present case, the Coalition does not contend that the 2012 ordinance duplicates or contradicts any other law. Instead, the Coalition maintains that the Retail Food Code expressly and fully occupies the field of law that the 2012 ordinance purports to regulate. "Express field preemption turns on a comparative statutory analysis: What field of exclusivity does the state
As noted above, the first step in our express field preemption inquiry is to identify the field of exclusivity established by the state preemption clause. (California Grocers, supra, 52 Cal.4th at p. 189.)
The purpose of the Retail Food Code "is to safeguard public health and provide to consumers food that is safe, unadulterated, and honestly presented through adoption of science-based standards." (§ 113703.) To that end, the code contains the following express preemption clause: "Except as provided in Section 113709, it is the intent of the Legislature to occupy the whole field of health and sanitation standards for retail food facilities, and the standards set forth in this part and regulations adopted pursuant to this part shall be exclusive of all local health and sanitation standards relating to retail food facilities." (§ 113705.)
The 2012 ordinance does not establish health or sanitation standards for retail food establishments. Instead, it regulates the use of single-use checkout
The Coalition insists that the preemption clause in the Retail Food Code establishes that the Legislature intended to "occupy the entire field." (See § 113705.) However, the Coalition fails to acknowledge that a field, even an entire field, has some ending point. Furthermore, the Coalition also overlooks other provisions of the Retail Food Code which make clear that it was not intended to preempt local regulation of every subject addressed anywhere in this statute. For example, section 113709 provides that it does not "prohibit a local governing body from adopting an evaluation and grading system for food facilities" or otherwise specifically regulating some of their sanitary standards, and section 113715 mandates that any "operation of a food facility shall ... be in accordance with all applicable local ... ordinances, including but not limited to, fire, building, and zoning codes."
The Coalition also argues that the 2012 ordinance is preempted because a carryout bag is a "single-use article[]" which is regulated by the Retail Food Code. "Single-use articles" is a broadly defined term under the code, which includes but is not limited to "utensils, tableware, carry-out utensils, bulk food containers, and other items such as bags, containers, placemats, stirrers, straws, toothpicks, and wrappers that are designed and constructed for one time, one person use, after which they are intended for discard." (§ 113914.) The code provides that "[s]ingle-use articles shall not be reused" (§ 114081, subd. (d)) and that "[m]aterials that are used to make single-use articles shall not allow the migration of deleterious substances or impart colors, odors, or tastes to food, and shall be safe and clean" (§ 114130.2).
For all of these reasons, we conclude that the 2012 ordinance is not preempted by the Retail Food Code.
The judgment is affirmed. Respondents shall recover their costs on appeal.
Kline, P. J., and Richman, J., concurred.