PHOENIX -- Arizona grocers, restaurants and retailers are not going to get a chance to defend a state law forbidding cities from regulating plastic bags, at least not directly.
In a ruling published Friday, Maricopa County Superior Court Judge Douglas Gerlach has rejected the contention of three business groups that they have a particular interest in ensuring that they get to continue to use plastic bags in the face of efforts by various communities to regulate or ban them outright. More to the point, the judge said the Arizona Food Marketing Alliance, the Arizona Restaurant Association and the Arizona Retailers Association have not convinced him that Attorney General Mark Brnovich will not do an adequate job of defending the 2015 law.
In fact, Gerlach said the trial tactics being proposed by Kork Langhofer actually would result in not only dragging out the lawsuit but also making it more expensive -- even to the point of potentially undermining the ability of the Tempe council member who filed suit to make her case.
Langhofer said he disagrees with Gerlach’s conclusion. But he said no decision has been made on whether to appeal.
Central to the legal fight is what right cities have to enact their own regulations.
Bisbee already has approved its own measure imposing a nickel-a-bag tax on disposable bags.
Retailers get to keep 2 cents for the cost of bags and administering the fee; the balance goes to a fund that can be used to provide reusable carryout bags and to promote conservation and recycling programs.
Flagstaff, Tucson and Tempe have been looking at their own ordinances as well.
So Rep. Warren Petersen, R-Gilbert, acting at the behest of businesses that could be affected, introduced legislation to preempt local laws. The measure, enacted last year makes it illegal for any any community to impose fees or deposits on the use of “auxiliary containers,’’ which include everything from soda bottles and cups to disposable bags “used for transporting merchandise or food.’’
Lauren Kuby, a member of the Tempe city council, challenged the legality of the new law.
Kuby she was crafting an ordinance that would have banned single-use plastic bags at groceries and retail outlets. It also would have allowed merchants to charge at least a dime for a paper bag for their customers who did not bring a reusable sack.
Langhofer sought to intervene.
He argued that the attorney general’s office would focus on the question of whether the Legislature is entitled to preempt local laws. That, he said, is purely a legal question of the power of the state.
By contrast, he wants to present evidence that says the legislation sets energy policy which is solely the purview of the state. And that, he said, requires presenting expert witnesses.
Similarly, Langhofer is seeking to undermine arguments that regulation of plastic bags is mostly an issue of local concern about litter.
That’s the contention of Bisbee where officials said one reason the council adopted the ordinance was that the bags don’t always make it to the landfill. The result, they said, has been “unsightly litter ... that resulted from plastic bags blown and caught on trees.’’
“We would argue against that characterization,’’ Langhofer said.
None of those arguments convinced Gerlach that the lawsuit should become a three-way debate.
He said the way Langhofer wants to defend the law versus the way the state would amount to little more than “differences in litigation strategy’’ and “differences about ow to best frame issues.’’
None of that, he said, provides the basis for Langhofer’s claim that Brnovich will not adequately defend the law.
The judge also said that, by Langhofer’s own admission, allowing his clients to intercede as parties would result in delay.
He said Langhofer admitted that he intends to retain expert witnesses and engage in other pretrial actions “beyond what the other parties think is necessary and well beyond, what is, by all reasonable appearances, required to reach a reasoned decision on the merits.’’ And Gerlach pointed out that Langhofer said he intends to devote “substantial time and resources’’ to pre-trial efforts to ferret out information.
“ ‘Substantial time’ can mean only that a decision on the merits will be delayed,’’ the judge said. “ ‘Substantial resources’ means not only making the litigation more expensive for the other parties but, as presented, suggests an intent to drive up that expense while seemingly indifferent to whether doing so will jeopardize any other party’s ability to participate effectively.’’
During debate on the 2015 law, Petersen said he was acting in the name of individual freedom.
“I understand that some people want to make the decision of ‘paper or plastic’ for other people,” he said.
“And I understand some people have an ideology of collectivism,’’ Petersen continued. “For me, I support individual rights and people making their own decisions.’’
Michele Ahlmer of the Arizona Retailers Association, said she sees the issue in more basic terms.
She said it’s a matter of consistency for chains that operate statewide. Differing rules in various cities are “really had to administer from a corporate level,’’ she said.
As it turns out, the Legislature is reenacted the same law this session.
The 2015 law also has a provision dealing with businesses monitoring their energy use and reporting it to the government. That raised questions of whether it illegally dealt with two unrelated subjects.
Now the measures are split, with HB 2130 dealing only with energy audits and HB 2131 solely relating to bags. Both bills already have been approved by the House and await Senate floor debate.
Originally Published here.