Plastic bag preemption suit takes aim at long time Harrisburg dealmaking mechanism

By: - April 19, 2021 3:37 pm

A legal challenge filed by Pennsylvania local governments to eliminate a state law blocking them from regulating single-use plastics could also threaten Harrisburg dealmaking as we know it.

The suit, filed in Commonwealth Court in March by the cities of Philadelphia and West Chester, the township of Lower Merion, and the borough of Narberth, argues that a nearly two-year-old moratorium on municipal single-use plastic bans or fees should be overturned by the courts for violating the state’s environmental rights amendment. 

Such restrictions of local governments are known as preemption.

“Saying local officials should not have the tools to tackle problems in their communities is just bad policy,” said David Masur, executive director of PennEnvironment, an environmental group attempting to intervene in the case. “It’s bad on the substance. It doesn’t feel very democratic.”

The moratorium was first passed in 2019 and meant to only last a year while legislative agencies studied plastic litter and the economic impact of local bans. However, amid the COVID-19 pandemic, the ban was extended another year. It is set to expire on July 1, 2021.

Local and state governments have begun passing these laws in an attempt to contain plastics pollution. That includes all of the plaintiffs, whose own bans or taxes were delayed by the state’s preemption law.

Outside the environmental impact, the municipalities also argue that lawmakers unlawfully implemented the ban as part of an omnibus, budget enabling piece of legislation known as a “code bill.”

Cracking the Code: These budget bills are where the deals get made

This legislation must be passed alongside the budget every year as a sort-of instructional manual for the spending. But these bills’ length and breadth makes it easy to insert controversial and far-reaching policies into them at the last minute, to assure those ideas are signed into law.

The municipalities’ suit argues that, when lawmakers added and approved the moratorium in 2019, it was done in violation of the state’s constitution, which prohibits bills from “containing more than one subject, which shall be clearly expressed in its title.” 

This constitutional requirement has gotten lawmakers in trouble before. 

The state Supreme Court tossed out a law eliminating General Assistance — a small cash benefit program for people fighting addiction, living with a disability, or fleeing domestic violence — as well as one expanding the liability for state municipalities that pass local guns ordinances for not meeting this requirement.

But there is an exception for a budget bill or a bill “codifying or compiling the law or a part thereof.”

To Duquesne University Law School Professor Bruce Ledewitz, an expert in the Pennsylvania constitution and courts, the plastic ban preemption measure appears to meet that exemption.

“I don’t offhand remember a case in which the plaintiff argued that a bill that looked like an appropriation bill actually wasn’t one,” he said in an email.

Lobbyists also expressed skepticism of the suit for not only putting into question the entire budgetary process, but also threatening one of their tools of the trade to quickly and quietly pass new policies.

“It would foreclose an avenue that leaders and governors use to get issues done that have been hanging out there all session,” said Mike Manzo, a former top staffer with House Democrats and now a lobbyist.

In fact, environmentalists have benefited from the policy at times. 

In 2017, the General Assembly approved a small, but long-sought, change to the state’s alternative energy law in a code bill. The change forced utilities to purchase solar energy generated in-state rather than out-of-state.

Masur acknowledged that his cause has gotten small wins out of Harrisburg’s odd ways of doing business. But two wrongs, he argued, didn’t make a right.

“Have we reaped as a society from them using the unconstitutional process? Frankly, the answer is yes,” Masur told the Capital-Star. “But does it make the process right? I think we should follow the law. It’s pretty clear what the law is.”

Both preemption and plastic bags have a long history in Harrisburg. The plastic bag lawsuit is Philadelphia’s second suit in the last six months to overturn state preemption law. City officials also are suing to reverse a ban on municipalities passing their own gun laws.

As for bags, Gov. Tom Wolf vetoed a permanent preemption of local single-use plastic policies in 2017.

Part of the industry’s sway, environmental advocates argue, lies in Senate President Pro Tempore Jake Corman, R-Centre. His central Pennsylvania district includes a plastic bag manufacturer that employs 160 people.

The temporary preemption policy was also accompanied by two studies of the topic, released last summer. The state’s Independent Fiscal Office found that a ban would cost businesses and consumers money. But a statewide 10 cent fee on any one-use bags would both save money and cut out demand for nearly 2 million plastic and paper bags.

Another study on plastic pollution cited research sponsored by the bag manufacturer in Corman’s district. A spokesperson for Corman did not reply to a request for comment.

Philly Council passes long-awaited ban on single-use plastic bags

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Stephen Caruso
Stephen Caruso

Stephen Caruso is a former senior reporter with Pennsylvania Capital-Star. Before working with the Capital-Star he covered Pennsylvania state government for The PLS Reporter.