Was Restricting Plastic Bag Bans in Pennsylvania During the Pandemic Legal and Necessary?

By: Daniel Guarracino

The COVID-19 pandemic halted the progress of single-use plastic bag ban regulations across the country. Since 2014, eight states and numerous municipalities have enacted laws banning or charging a fee for single-use plastic bags. In Pennsylvania, Narbeth Borough, Philadelphia, and West Chester Borough in Chester County had regulated single-use plastic shortly before the pandemic.[1] Bans are enacted due to environmental concerns. Single-use plastics do not degrade; they can break down into microplastics and pollute the waterways and wildlife.[2]  However, the state halted these local bans because they believed single-use plastics were less likely to spread COVID-19 via surface transmission than their reusable counterparts.

Pennsylvania enacted Act 23, which preempted local law by banning local governments from creating or enforcing their own plastic bans.[3] Preemption refers to the idea that a higher authority of law supersedes that of a lower authority when the two conflict.[4] Just as a state cannot pass a law that conflicts with federal law, a municipality cannot pass a law that conflicts with state law. When laws contradict, the higher authority wins. This preemption of state law was to last until July 1, 2021, or six months after the termination of the emergency COVID-19 order issued by the Governor on March 6, 2020.[5] The state legislature terminated the Governor’s Proclamation in June 2020[6], meaning that the bag ban restrictions will no longer be enforced in December.[7] But were the restrictions necessary or even legal?

Studies find that concerns about transmission of COVID-19 via surface contact were overestimated. But the plastic industry was quick to capitalize on fear. They perpetuated the viewpoint that reusable plastic grocery and retail bags should not be used.[8] However, this viewpoint was propagated on weak evidence. None of the studies relied upon by the plastic industry investigated the presence, survival, or infectivity of any coronavirus family members.[9] Furthermore, the studies failed to consider that the spread of COVID-19 may also be due to other factors such as food handling, interactions with people at stores, and contact with other commonly touched surfaces. These surfaces, including carts and payment keypads, might be more likely to be disease vectors.[10] Thus, the preemption was based on questionable science and may not have even been legal.

Philadelphia, the Borough of West Chester, Narbeth, and Lower Merion Township filed a lawsuit against the state to challenge the preemption.[11] In their complaint, they said that restricting the bag bans was unconstitutional for three reasons. First, they claimed that Act 23 violated a provision of the state constitution which says that bills cannot contain more than one subject.[12] Act 23 was a budget bill, not about COVID-19 or single-use plastics. Second, the budget bill’s original purpose was unconstitutionally altered.[13] Third, they claimed it violated the Pennsylvania Environmental Rights Amendment, which guarantees citizens the right to a healthy and clean environment.[14]

The preemption issue on single-use plastic bans during the pandemic shows the disconnect between science and the law. The legislature abandons sustainability goals in the name of public health and perhaps ends up achieving neither.

Image from: WHYY

[1] Legis. Budget and Fin. Comm., A Study in Response to Act 2019-20: Non-Economic Impacts of Single Use Container Bans/Fees S-3–4 (2020), http://lbfc.legis.state.pa.us/Resources/Documents/Reports/665.pdf.

[2] Donald Giddings, The Effects of Single-Use Plastic on the Environment, Nature Conservancy Canada (Mar. 29, 2021), https://www.natureconservancy.ca/en/blog/the-effects-of-single-use-plastic.html.

[3] 50 PA.B. 1644 (March 21, 2020).

[4] Preemption, Cornell L. Inst., https://www.law.cornell.edu/wex/preemption, (last visited Oct. 27, 2021).

[5] 50 PA.B. 1644 (March 21, 2020).

[6] Pennsylvania Governor Proclamations, PEMA (2021), https://www.pema.pa.gov/Governor-Proclamations/Pages/default.aspx.

[7] Lindsay Weber, Philadelphia and Pittsburgh Move Ahead with Plastic Bag Bans as Pennsylvania’s Preemption Nears its End, Spotlight PA (Jun. 29, 2021), https://www.spotlightpa.org/news/2021/06/pa-plastic-bag-ban-preemption-philadelphia-pittsburgh/.

[8] Letter from Tony Radoszewski, President of the Plastics Indus. Ass’n., to US Dep’t of Health and Hum. Serv. (Mar. 18, 2020), https://www.politico.com/states/f/?id=00000171-0d87-d270-a773-6fdfcc4d0000.

[9] R. C. Hale & B. Song, Single-Use Plastics and Covid-19: Scientific Evidence and Environmental Regulations, 54 Env’t Sci. & Tech. 7034, 34 (2020) https://pubs.acs.org/doi/pdf/10.1021/acs.est.0c02269.

[10] R. C. Hale & B. Song, Single-Use Plastics and Covid-19: Scientific Evidence and Environmental Regulations, 54 Env’t Sci. & Tech. 7034, 35 (2020) https://pubs.acs.org/doi/pdf/10.1021/acs.est.0c02269.

[11] City of Philadelphia v. Pennsylvania, No 42 MD 2021, at 1­–4 (Pa. Commw. Ct. 2021), https://pennenvironment.org/sites/environment/files/resources/Petition%20for%20Review%20FINAL.pdf.

[12] Pa. Const. art. III, § 3.

[13] Pa. Const. art. III, § 1.

[14] Pa. Const. art. I, § 27.

5 comments

  1. So interesting to see public health used as a scapegoat to preempt sustainable policies like plastic bag bans. Can’t wait to read the full paper!

  2. Very interesting, in addition to allowing previously banned plastic bags, I’m also seeing increases in single use plastics such as packaging, utensils, etc., in the name of Co-vid safety. It’s a shame to see so much fear mongering and disconnect with science during the pandemic.

  3. Very interesting constitutional analysis on such a current topic! Hopefully we will see more movements towards sustainable practices and upholding their implementation as the interest in combatting environmentally harmful practices trends upwards. I would be curious to see how different states’ judges might interpret the preemption concerns in comparison to PA.

  4. Interesting topic Dan! During the pandemic craze, I actually thought to myself that the connection between the reusable bags and potential spread of COVID didn’t really add up. I had no idea Pennsylvania went that far to stop the use of the these bags in fear of further contamination.

  5. Very interesting article! I was recently in the Borough of West Chester for Thanksgiving and I was surprised to see that every single pickup item at Target was packed in a single-use plastic bag. Coming from New York I was surprised to see the bags in general, but I had no idea that there was any preemption by the State. I wonder if federal action is the only way to truly solve the problem in the name of sustainability.

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