On its way to considering a ban on those flimsy disposable plastic grocery store bags, the city of Denver found out it can’t.
Apparently, there is a Colorado law that bans municipalities from banning plastics, and Denver isn’t the only one to be taken aback.
This may seem peculiar in a state where at least nine communities already ban single-use plastic grocery bags, which can muck up recyclers’ sorting machines and survive for years in landfills. But there it is, in Section 7 of the Colorado Revised Statutes, 25-17-104:
Local government preemption. No unit of local government shall require or prohibit the use or sale of specific types of plastic materials or products or restrict or mandate containers, packaging, or labeling for any consumer products.Page 866 of this PDF of Colorado’s laws
“We’re one of 10 states that has a municipal preemption where cities are not allowed to do this,” said Jolon Clark, president of Denver City Council. “Our attorneys were like, ‘This is great that you want to talk about it, but just know that you’re not legally allowed to do that.’ ”
There’s an effort underway to press politicians to change the 1993 statute, which is crammed into the recycling section. Other attempts this session at the statehouse to put limits on throwaway plastics, like straws, food containers and those grocery bags have so far had no results.
A bill to prevent restaurants from offering plastic straws unless a customer requests one was put on hold indefinitely last week. Another bill to let local governments regulate disposable food containers has been sitting without a committee hearing for two months. But the real hurdle here may not be about recycling, but rather, preemption and whether local governments should be able to regulate recycling within city limits.
“It’s a matter of local control,” said Morgan Cullen, legislative and policy advocate at the Colorado Municipal League, adding that all eight towns that banned plastic bags are home-rule communities. “But until the courts make that determination, there’s a gray area. Even home-rule municipalities have to give credence to the possibility of a lawsuit for enacting an ordinance that would prohibit plastic bags.”
The uncertainty caused towns like Avon to limit its own desires. The town’s disposable plastic bag ban went into effect last May and tacked on a 10-cent fee for paper bags. But it excluded polystyrene foam containers, the common to-go food containers.
“We elected not to move forward with it at the time because of the uncertainty of the state statute,” said Preston Neill, Avon’s deputy town manager. “… But there seems to be support for initiatives like this based on adopted plans and the collective sentiment from comments at meetings.”
Aspen’s plastic bag ban started in 2012. Retailers charge a 20-cent fee for paper bags. Then the city was sued — but not for violating the state statute. Rather, lawyers for the Colorado Union of Taxpayers Foundation argued that the fee was a tax that required a vote by residents (as required by TABOR, the Taxpayer Bill of Rights — here’s an explainer). The case went all the way to the Colorado Supreme Court, which ruled last spring that, nope, the fee is a fee.
The preemption law? It never came up, said Liz O’Connell Chapman, Aspen’s waste reduction and environmental health specialist.
“I was flabbergasted. I didn’t even find out it existed until after the Supreme Court closed on our case and I was having discussions with someone about Styrofoam,” said Chapman, who advises any city interested in banning plastic bags to gather data on local bag use first. “That’s when I realized nobody had said anything about this for five years. Nobody mentioned this preemption thing. The people who sued us were not interested in preemption. That was not their beef. It was all about TABOR.”
The obscure state statute might not have been well known to locals but attorneys for eco-striving Colorado cities knew about it. Telluride, the first Colorado municipality to ban plastic bags, did so in 2010 but not without careful consideration of the statute, town attorney Kevin Geiger said.
“We were aware of this statutory provision and while it appears to be broadly worded, when you look at the legislative declaration of it and the context of the legislation in 1993, it’s pretty clear that it’s about local governments not interfering with the recycling of plastics and (it’s) not a broader regulation of plastics in general,” Geiger said.
Still, Telluride kept its ban to only plastic bags and not to “containers, packaging or labeling” as the law specifically mentions.
“My council has expressed a desire to go into single-use plastics, like the disposable forks handed out at restaurants, or straws. But this law has broader language of containers that has given us some pause,” Geiger added. “We’re going to wait a little bit and see what happens. If there’s going to be a legislative fix, we’re happy to wait a little bit longer.”
Proposed, pending and failed bills
Keeping mum about plastic straws until a customer asked for one seemed like practical way for restaurants to cut down on costs and trash. Plastic straws are too small to effectively recycle at facilities.
And the thin tubes are blamed for cluttering up the environment, with at least one straw getting snorted up the nostril of a poor sea turtle, the unfortunate star of a distressing video credited with starting the current straw ban movement.
But Colorado’s House Bill 1143, or the “straws on request” bill, failed to find a compromise. Opponents, including the Colorado Municipal League, said there were too many exemptions — drive-thrus and food deliveries were excluded — and the bill took away the right of local governments to regulate straws in their own communities.
The Colorado Restaurant Association, which initially supported the measure, also walked away because the lack of a statewide standard would be confusing and costly for restaurants to implement, spokeswoman Carolyn Livingston said.
“Legislation giving each municipality the ability to have different rules, laws and enforcement would cause significant confusion for businesses as a patchwork of local laws are established by local governments,” she said. “Additionally, in metro areas, restaurants are competing with each other in jurisdictions that are separated by a street. … We’d prefer a level playing field for all restaurants.”
The bill was killed on Feb. 25.
Meanwhile, Senate Bill 34 would reword the existing state statute to allow local governments to set standards for “ready-to-eat food containers” to be recyclable or compostable. But two months after being introduced, the bill still hasn’t been heard in committee.
The American Chemistry Council, which lobbies for plastics manufacturers, opposed Avon’s ban on plastic food containers and specifically pointed out the state law. But also, said Keith Christman, the council’s plastics division managing director, bans don’t help the environment.
“They just switch from one product to another,” Christman said. “They don’t eliminate waste.”
Alternative food containers tend to be heavier than foam containers, cost more and often take more energy to produce, he said.
“And if you haven’t put in better waste management, all you’re doing is paying more money for alternatives that aren’t better for the environment,” he said, adding that the organization is committed to all plastic packaging being recyclable or recoverable by 2030.
Bill sponsor state Sen. Dominick Moreno, a Commerce City Democrat, said negotiations continue and the bill is not ready for debate.
“It’s possible,” Moreno added, “that the bill may take a different form, like a statewide ban on Styrofoam take-out containers.”
The Colorado Municipal League has bigger plans. It is working with unnamed state legislators to appeal the preemption so municipalities could move ahead with regulating plastic straws, containers and other plastics.
“We expect legislation in the 2019 session,” Cullen said.
So why does this preemption law exist?
According to the Colorado Department of Public Health and Environment, which oversees recycling in the state, the statute stems from the 1989 House Bill 1300.
The law, approved by former Gov. Roy Romer on May 17 that year, prevented local governments “from regulating the use of plastic materials or products.”
There’s no explanation about why the bill was proposed, but in the same paragraph, the law goes on to direct plastics manufacturers to use labels that identify what type of plastic is used in their products and authorizes the executive director of the state department of local affairs to start a pilot program for plastics recycling.
The intent was to encourage recycling but also prevent communities from limiting what types of plastics could be or not be used. It sits in the recycling section of the Colorado state statutes, said Cullen, with the Colorado Municipal League, who also checked with a predecessor to glean details of the law’s origin.
It was a time when incentivizing people to recycle was built into the law. And likely, Cullen added, “it was part of some sort of compromise with the industry in that if we’re going to continue to promote recycling, we would also require a statewide preemption of plastic products.”
Back then, America had a different mindset when it came to recycling. According to the U.S. Environmental Protection Agency, fewer people were recycling and U.S. recycling rates of municipal solid waste were at 16 percent in 1990. By 2015, the U.S. reached 34 percent, putting us well below countries like Germany (at 65 percent), South Korea (at 59 percent) and Slovenia (at 58 percent), according to Forbes.
The 1989 law was amended in 1993 with House Bill 1318, called the “Promotion of Disposal Alternatives.” At that time, the state statute added the language about municipalities not restricting or mandating containers, packaging and labeling.
“To put this into context, it was back in 1993 and no one was considering the prohibition of plastics,” Cullen said. “And now it’s 2019 and the general public has become more aware of the environmental costs of plastics and are beginning to petition their local governments about removing single-use plastics.”
And a few paragraphs earlier in the statute, is the legislative declaration that says the general assembly declares recycling “is a matter of statewide concern.”
“It’s pretty clear. They wanted to promote a market for recycling of materials,” said Geiger, the Telluride attorney. “Our conclusion was that this was really based on the state’s concern that they didn’t want local governments to interfere with the types of plastics recycled.”
Efforts are underway to remove the local preemption because until that happens, no town, city or municipality appears to be moving forward to ban plastic straws, food containers or plastic packaging.
However, still missing from the law is any hint of enforcement. And the state division in charge of recycling has this to say about that aspect and the state law:
“This particular provision was not written in a way that outlines enforcement authority or mechanisms,” Joe Schieffelin, the state’s solid waste program manager, said in an email. “As such, the Solid Waste Program does not enforce this section of statute. We advise municipalities to consult with their legal counsel if they have questions on this particular section of statute.”