Case Information
*1 Filed 7/14/11
IN THE SUPREME COURT OF CALIFORNIA SAVE THE PLASTIC BAG COALITION, )
)
Plaintiff and Respondent, )
) S180720 v. )
) Ct.App. 2/5 B215788 CITY OF MANHATTAN BEACH, )
) Lоs Angeles County Defendant and Appellant. ) Super. Ct. No. BS116362 ____________________________________)
Here we consider two questions: (1) What are the standing requirements for a corporate entity to challenge a determination on the preparation of an environmental impact report (EIR)? (2) Was the city of Manhattan Beach required to prepare an EIR on the effects of an ordinance banning the use of plastic bags by local businesses?
Plaintiff, a coalition of plastic bag manufacturers and distributors, claims
standing to maintain a citizen suit to vindicate the public interest in environmental
quality. The trial court and the Court of Appeal granted plaintiff standing on that
basis. Both courts rejected the city‟s argument that plaintiff had failed to make the
enhanced showing required by
Waste Management of Alameda County, Inc. v.
County of Alameda
(2000)
On the merits, the courts below ruled that the city had to prepare an EIR before implementing a ban on plastic bags. We disagree. Substantial evidence and common sense support the city‟s determination that its ordinance would have no significant environmental effect. Therefore, a negative declaration was sufficient to comply with the requirements of the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.). 1 Accordingly, we reverse the Court of Appeal‟s judgment.
I. BACKGROUND
On June 3, 2008, the city manager of Manhattan Beach issued a staff report recommending the adoption of an ordinance banning the use of “point-of-sale plastic carry-out bags” in the city. The proposed ordinance included a finding that CEQA did not apply because the ban would have no significant effect on the environment (Cal. Code Regs., tit. 14, § 15061(b)(3)), and because it qualified as a regulatory program to protect the environment ( id ., § 15038).
Plaintiff, describing itself as “a newly formed group of companies that will be affected by any ordinance to ban or impose fees on plastic bags,” objected to the proposed ordinance. 2 It claimed that the movement to ban plastic bags was 1 Further statutory references are to the Public Resources Code, unless otherwise noted. A “negative declaration” is “a written statement briefly describing the reasons that a proposed project will not have a significant effect on the environment and does not require the preparation of an environmental impact report.” (§ 21064.)
2 In its subsequent writ petition, plaintiff stated that it was “an unincorporated association” of “plastic bag manufacturers and distributors directly and indirectly affected and prejudiced by the Ordinance.” Some of its members,
( footnote continued on next page ) *3 based on misinformation and would increase the use of paper bags, with negative environmental consequences. Plaintiff notified the city that it would sue if the ordinance was passed without a full CEQA review.
The city then conducted an initial study evaluating the environmental impacts of the proposed ordinance. The study noted: “Reducing the use of plastic bags in Manhattan Beach will have only a modest positive impact on the migration of plastic refuse into the ocean. However, as a coastal City the imposition of the ban is likely to have some modest impact on improving water quality and removing a potential biohazard from the marine environment.” The study recognized that a switch from plastic to paper bags would have some negative environmental consequences. More energy is needed to manufacture and distribute paper bags, and more wastewater is produced in their manufacture and recycling. However, the study concluded that the impacts of a plastic bag ban would be less than significant, for the following reasons:
“The population of Manhattan Beach is only 33,852 according to the 2000 census. However, per capita bag usage would provide an inflated measurement of any net increase in paper bag use since the proposed ordinance does not ban the use of plastic bags by residents but [rather] their distribution at point of sale. Only 11.2% of the City is zoned commercial and there are only 217 licensed retail establishments within the City which might use plastic bags. There are only two supermarkets, three (and two future) drug stores, and one Target store known to be high volume users of plastic shopping bags in the City which would be affected by ( footnote continued from previous page )
specifically including three corporations, supplied plastic bags to businesses in Manhattan Beach.
the ban. The remaining businesses tend to be smaller and lower volume and many restaurants and most fast food outlets already use paper bags for take out orders.
“Plastic bags would not be replaced by paper bags on a one to one ratio since paper bags have a higher capacity. One study (commissioned by the plastic bag industry) estimates that for every 1500 plastic bags it would take 1000 paper bags to replace them. Other studies find that paper bags may hold up to four times the volume of plastic bags. In light of anticipated education efforts, increased publicity (partially resulting from the subject ordinanсe), and the public‟s increased concern for pollution and water quality, at least some percentage of plastic bags are expected to be replaced by reusable bags rather than paper bags.”
The initial study observed that the ordinance would require paper bags “to have 40% recycled content reducing landfill demand and encouraging reduced use with increased costs for paper bags. . . . The substitution of paper bags for plastic that does occur, although larger in mass per square foot compared to plastic, would not significantly impact landfill capacity since a larger portion of paper bags is recycled than plastic, substituted paper bags will be at least 40% paper diverted from landfills, and the City of Manhattan Beach represents a small proportion of regional landfill users.”
Based on these considerations, the initial study concluded that any increase in the use of paper bags in Manhattan Beach would be relatively small, with minimal impacts on energy use, air quality, water quality, vehicle traffic, and solid waste facilities. It noted that the ordinance posed no environmental threat to fish, wildlife, plant communities, historical resources, or human beings. On the other hand, it would decrease the prevalence of plastic bag litter, both in the city itself and in the ocean. Therefore, the study recommended adoption of a negative declaration finding that the ordinance could not have a significant effect on the environment.
Plaintiff again objected and threatened litigation if the ordinance was adopted. Plaintiff referred to two studies, one prepared in 2005 by the Scottish government and one issued in 2008 by the editors of an on-line newsletter, the Use Less Stuff (ULS) Rеport. Both concluded that the “life cycle” of paper bags, including their manufacture, transport, and disposal, has a greater environmental impact than the “life cycle” of plastic bags. Plaintiff contended this evidence established a reasonable possibility that increased use of paper bags as a result of the proposed ordinance would have a significant negative effect on the environment, requiring the preparation of a full EIR.
On July 1, 2008, the city issued another staff report addressing the “life cycle” studies. In addition to the Scottish and ULS studies, city staff had reviewed a Washington Post report; a 1990 study by Franklin Associates, Ltd.; an analysis conducted by the Fund for Research into Industrial Development, Growth and Equity; and a 2007 report by Boustead Consulting & Associates Ltd. The staff report also discussed a comparative analysis of bag “life cycle” studies prepared by thе South African Department of Trade and Industry. The report noted that varying assumptions were employed from study to study, and that “differing results from the [studies] could be selectively used to lend support to proponents of either plastic or paper bags.” The South African analysis had concluded that “life cycle” studies were “sensitive to and limited by factors such as scope, objectivity, geography, climate, and energy sources,” and “can be constructed to carry a specific message by carefully selecting the impacts to examine.” City staff recommended adopting the proposed ordinance, and embarking on “an aggressive education and outreach program to inform our residential and business community of the ban and to promote the use of reusable bags.”
The Manhattan Beach City Council adopted ordinance No. 2115 on July 15, 2008. The council‟s findings аre set forth in section 1 of the ordinance:
“A. As a coastal city Manhattan Beach has a strong interest in protecting the marine environment an element which contributes to the unique quality of life in the City.
“B. Plastic and paper bags each have negative impacts on the environment. It is well known that paper bags require more energy to manufacture and recycle and generate effluent during these processes. It is also known that paper bags are bulkier and heavier than plastic bags.
“C. However a primary and significant problem with plastic bags is that they do not biodegrade and are extremely light and easily caught in the wind. In a coastal city like Manhattan Beach even plastic bags which are properly discarded can find their way into the marine environment where they do not break down and essentially remain indefinitely.
“D. The Pacific Ocean contаins a huge accumulation of debris known as the „Great Pacific Garbage Patch‟ which consists mostly of plastic debris. Some scientists estimate the density of plastic in this garbage patch as one million pieces of plastic per square mile. While plastic does not bio-degrade it does „photo- degrade‟ breaking down into smaller pieces which can make their way into the food chain [via] such animals as jellyfish.
“E. While the exact numbers are unknown there are many reported instances of marine animals being injured or dying from ingesting or choking on plastic debris in the ocean. It is reasonable to conclude from such information that the presence of plastic debris in the ocean provides a hazard for marine life.
“F. Because there is a strong possibility that plastic bags discarded in Manhattan Beach can end up in the ocean where they will last indеfinitely and create an aesthetic blight and potential hazard to marine life (and paper bags will not do so because they biodegrade and are less likely to be blown out to sea) it is in the best interests of the public health, safety and welfare to adopt the proposed *7 ban on distribution of plastic bags at point of sale within the boundaries of the City of Manhattan Beach.
“G. The City Council of the City of Manhattan Beach conducted a noticed public hearing regarding the project at their regular scheduled meeting of July 1, 2008. The public hearing was advertised pursuant to applicable law and testimony was invited and received.
“H. An Initial Environmental Study was prepared in compliance with the provisions of the California Environmental Quality Act. Based upon this study it was determined that the project is not an action involving any significant impacts upon the environment, and а Negative Declaration was prepared and is hereby adopted.
“I. The proposed amendments will have no negative impact on Fish and Game resources pursuant to Section 21089(b) of the Public Resources Code.” (City of Manhattan Beach Ord. No. 2115, § 1.)
The ordinance provides: “No Affected Retail Establishment, Restaurant, Vendor or Non-Profit Vendor shall provide Plastic Carry-Out Bags to customers at the point of sale. Reusable Bags and Recyclable Paper Bags are allowed alternatives.” (City of Manhattan Beach Ord. No. 2115, § 2(b)(A).) “Recyclable” is defined as: “material that can be sorted, cleansed, and reconstituted using Manhattan Beach‟s available recycling collection programs.” ( Id ., § 2(a).) The ordinance also states: “Affected Retail Establishments are strongly encouraged to provide incentives for the use of Reusable Bags through education and through credits or rebates for customers that use Reusable Bags at the point of sale for the purpose of carrying away goods.” ( Id ., § 2(b)(C).)
On August 12, 2008, plaintiff petitioned for a writ of mandate to bar
enforcement of the ordinance until the city prepared an EIR. Plaintiff claimed that
public rights were at stake, and that its “objective in bringing this action [was] that
*8
of an interested citizen seeking to procure enforcement of . . . public duties.” The
city responded that plaintiff lacked standing to bring a citizen suit under
Waste
Management
,
supra
,
The trial court granted the writ. It found that plaintiff had standing because it was not a “for-profit corporation that is seeking a commercial advantage over a specific competitor,” and because it had raised a “genuine environmental issue: whether the banning of plastic bags, and the consequent increase in the use of paper bags, will increase, rather than decrease, injury to the environment.” The court further concluded that the evidence in the record supported a fair argument that the ban would increase environmental damage, so that an EIR was required.
The Court of Appeal affirmed, in a split opinion. On the standing question, the majority decided that plaintiff was qualified to pursue its action under the “public right/public duty” exception to the requirement that a mandamus petition be brought by a “beneficially interested” party. ( Green v. Obledo (1981) 29 Cal.3d 126, 145; Code Civ. Proc., § 1086.) The majority reasoned that plaintiff was not asserting a commercial or purely competitive interest, and should be allowed to seek enforcement of the city‟s public duty to prepare an EIR on the effects of the ordinance. On the merits, the majority held that plaintiff had submitted substantial evidence to support a fair argument that the ban would have significant environmental impacts.
The dissent did not address the standing issue, but argued that CEQA requirements would be stretched to the point of absurdity if a small city were required to prepare an EIR on the effects of increased paper use that might result from a ban on the distribution of plastic bags. The dissent concluded that the “life *9 cycle” studies on the global environmental effects of paper production did not provide substantial evidence of any environmental harm caused by the Manhattan Beach ordinance.
We granted the city‟s petition for review.
II. DISCUSSION
A. Standing
As a general rule, a party must be “beneficially interested” to seek a writ of
mandate. (Code Civ. Proc., § 1086.) “The requirеment that a petitioner be
„beneficially interested‟ has been generally interpreted to mean that one may
obtain the writ only if the person has some special interest to be served or some
particular right to be preserved or protected over and above the interest held in
common with the public at large. [Citations.] As Professor Davis states the rule:
„One who is in fact adversely affected by governmental action should have
standing to challenge that action if it is judicially reviewable.‟ (Davis, 3
Administrative Law Treatise (1958) p. 291.)” (
Carsten v. Psychology Examining
Com.
(1980)
Nevertheless, “ „where the question is one of public right and the object of
the mandamus is to procure the enforcement of a public duty, the [petitioner] need
not show that he has any legal or special interest in the result, since it is sufficient
that he is interеsted as a citizen in having the laws executed and the duty in
question enforced.‟ ” (
Bd. of Soc. Welfare v. County of L.A.
(1945)
Here, plaintiff claims public interest standing to pursue its CEQA action.
The city, relying on
Waste Management
,
supra,
The
Waste Management
court first held that the plaintiff did not have the
beneficial interest required for a writ of mandate because it asserted only a
commercial and competitive interest. The plaintiff‟s grievance was that
it
had
been required to undergo expensive CEQA review in a comparable permitting
process, and would suffer economic injury if its competitor escaped such costs of
compliance. The court ruled that this injury was not within the “zone of interests”
protected by CEQA, and thus was too indirect to establish the requisite beneficial
interest. (
Waste Management
,
( footnote continued on next page ) *11 The court then considered whether the plaintiff qualified for public interest standing. It observed that this exception to the beneficial interest requirement is meant to give citizens an opportunity to ensure the enforcement of public rights and duties. The plaintiff, however, was a corporation, and corporations are not generally regarded as “citizens.” ( Waste Management , supra , 79 Cal.App.4th at p. 1237.) Reasoning that corporations are typically motivated by corporate interests rather than the interests of citizenship, the court decided that when a corporation claims public interest standing it must “demonstrate it should be accorded the attributes of a citizen litigant.” ( Id . at p. 1238.) “[W]hen a nonhuman entity claims the right to pursue a citizen suit, the issue must be resolved in light of the particular circumstances presented, including the strength of the nexus between the artificial еntity and human beings and the context in which the dispute arises.” ( Ibid .) The court suggested the following factors for consideration: whether the corporation has shown a continuing interest in or commitment to the public right ( footnote continued from previous page )
that the plaintiff‟s interest in enforcement must be a direct one. (
Waste
Management
,
We reiterate our recent admonition that “[t]here are sound reasons to be
cautious in borrowing federal standing concepts, born of perceived constitutional
necessity, and extending them to state court actions where no similar concerns
aрply.” (
Kwikset Corp. v. Superior Court
(2011)
being asserted; whether it represents individuals who would be beneficially interested in the action; whether individuals who are beneficially interested would find it difficult or impossible to seek vindication of their own rights; and whether prosecution of the action as a citizen suit by a corporation would conflict with other competing legislative policies. ( Ibid .)
In the case before us, the Court of Appeal cited Waste Management but did not hold plaintiff to the special showing required by that decision. Though plaintiff is an association representing corporate entities, the court simply decided that plaintiff‟s interest was not purely commercial and competitive, observed that “maintaining a quality environment is a matter of statewide concern,” and concluded that public interest standing was available to seek enforcement of the city‟s duty to prepare an EIR weighing the impacts of a ban on plastic bags.
We agree with the Court of Appeal that plaintiff‟s commercial interests
were not an impediment to its standing here. Further, we approve the court‟s
implicit rejection of the
Waste Management
rule holding corporations to a higher
standard in qualifying for public interest standing. Only one other Court of
Appeal has considered the details of the
Waste Management
factors when
determining whether a corporation has standing to bring a citizen suit. (
Regency
Outdoor Advertising, Inc. v. City of West Hollywood
(2007)
involved competing waste disposal companies. The Burrtec court reasoned that the plaintiff‟s corporate status did not affect its right to seek redress for the city‟s failure to provide the public notice required by CEQA before adopting a negativе declaration for a competitor‟s conditional use permit. ( Id . at pp. 1138-1139.) The court then summarily noted that the plaintiff was qualified to bring a citizen suit under the Waste Management criteria because it allegedly “encourage[d] and monitor[ed] environmental compliance, including CEQA determinations, by itself and other waste companies in Southern California.” ( Id . at p. 1139.)
In other cases where corporate plaintiffs have asserted public interest standing, the Courts of Appeal have done what the court below did here: referred to Waste Management but ignored the criteria it would impose on corporate entities. ( Urban Habitat Program v. City of Pleasanton (2008) 164 Cal.App.4th 1561, 1581 [nonprofit corporation had standing in citizen suit challenging housing regulations]; Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th 1241, 1252 [contractor‟s corporate status did not bar it from joining citizen suit].) As these courts have recognized, the fact that a corporation is not technically a “citizen” for most purposes (see 9 Witkin, Summary of Cal. Law (10th ed. 2005) Corporations, § 1, p. 776) does not necessarily affect its standing to pursue a “citizen suit.”
The term “citizen” in this context is descriptive, not prescriptive. It reflects
an understanding that the action is undertaken to further the public interest and is
not limited to the plaintiff‟s private concerns. Entities that are not technically
“citizens” regularly bring citizen suits. (E.g.,
Common Cause v. Board of
Supervisors
(1989)
The
Waste Management
court found such a policy reason in the notion that
“it generally is to be expected that a corporation will act out of a concern for what
is expedient for the attainment of corporate purposes (see
Marsili v. Pacific Gas &
Elec. Co.
(1975)
The
Carsten
court‟s reference to “the neutrality of citizenship” was a
rhetorical flourish designed to highlight the fact that the plaintiff in that case was a
member of an administrative board who disagreed with a board decision. Thus,
her challenge to the decision was motivated by interests arising from her service
on the board, rather than by broader public concerns. (
Carsten v. Psychology
Examining Com.
,
supra
,
The problem the Waste Management court sought to address with its sweeping limitation on corporate public interest standing was a discrete one: an attempt to use CEQA to impose regulatory burdens on a business competitor, with no demonstrable concern for protecting the environment. Such an attempt would be equally improper if launched by an individual. We disapprove Waste Management of Alameda County, Inc. v. County of Alameda , supra , 79 Cal.App.4th 1223, to the extent it held that corporate parties are routinely subject to heightened scrutiny when they assert public interest standing. 5 We agree with the Court of Appeal that plaintiff‟s CEQA arguments were appropriate for a citizen suit. As we have noted, “strict rules of standing that might be appropriate in other contexts have no application where broad and long- 5 By disapproving Waste Management on this point, we do not suggest that public interest standing is freely available to business interests lacking a beneficial interest in the litigatiоn. No party, individual or corporate, may proceed with a mandamus petition as a matter of right under the public interest exception. As the Waste Management court correctly observed, “Judicial recognition of citizen standing is an exception to, rather than repudiation of, the usual requirement of a beneficial interest. The policy underlying the exception may be outweighed by competing considerations of a more urgent nature. ( Green v. Obledo , supra , 29 Cal.3d at p. 145; see also Nowlin v. Department of Motor Vehicles (1997) 53 Cal.App.4th 1529, 1538.)” ( Waste Management , 79 Cal.App.4th at p. 1237.)
term [environmental] effects are involved.” (
Bozung v. Local Agency Formation
Com.
(1975)
The city suggests that a plaintiff must be affected by a particular adverse
environmental
impact to qualify as a beneficially interested party in a CEQA suit.
We have never so limited the scope of the beneficial interest requirement. It is not
unusual for business interests whose operations are directly affected by a
government project to raise a CEQA challenge to the government‟s environmental
analysis. (E.g.,
Western States Petroleum Assn. v. Superior Court
(1995) 9
Cal.4th 559, 565-567;
Dunn-Edwards Corp. v. Bay Area Air Quality Management
Dist.
(1992)
6
The city does not dispute plaintiff‟s associational standing. (See
Associated Builders & Contractors, Inc. v. San Francisco Airports Com.
(1999)
B. The EIR Requirement
“[A] public agency pursuing or approving a project need not prepare an
EIR unless the project may result in a „significant effect on the environment‟
(§§ 21100, subd. (a), 21151, subd. (a)), defined as a „substantial, or potentially
substantial, adverse change in the environment‟ (§ 21068). If the agency‟s initial
study of a project produces substantial evidence supporting a fair argument the
project may have significant adverse effects, the agency must (assuming the
project is not exempt from CEQA) prepare an EIR. (Cal. Code Regs., tit. 14,
§ 15064, subd. (f)(1);
No Oil, Inc. v. City of Los Angeles
(1974)
8 Another alternative at this stage is to determine that the project is exempt from CEQA review. Here, city staff suggested at first that the proposed ordinance would be exempt “under what is sometimes called the „commonsense‟ exemption, which applies „[w]here it can be seen with certainty that there is no possibility that
(
footnote continued on next page
)
*18
The city‟s decision to issue a negative declaration in connection with its
plastic bag ordinance is reviewed for “prejudicial abuse of discretion,” which “is
established if the agency has not proceeded in a manner required by law or if the
determination or decision is not supported by substantial evidence.” (§ 21168.5;
Communities for a Better Environment v. South Coast Air Quality Management
Dist.
,
supra
,
The majority conceded, “[i]t may be that the city‟s population and the number of its retail establishments using plastic bags is so small and public concern for the environment is so high that there will be little or no increased use of paper bags as a result of the ordinance and little or no impact on the environment affected by the ordinance.” However, “the initial study contains no information about the city‟s actual experience — including, by way of example ( footnote continued from previous page )
the activity in question may have a significant effect on the environment‟ ([Cal.
Code Regs., tit. 14,] § 15061, subd. (b)(3)).” (
Muzzy Ranch Co. v. Solano County
Airport Land Use Com.
,
only: the number of plastic and paper bags consumed; recycling rates; the quantity of plastic bags disposed of in city trash; how the city disposes of its trash; whether plastic bags are a significant portion of litter found; how, when and in what quantities paper and plastic bags are delivered into the city; whether the city has a landfill that would be impacted by any increased paper bag use; whether there are recycling facilities or programs in the city or the surrounding area; and what the likely impact will be of a campaign urging recycling and reusable bag use.”
On this record, it is undisputed 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.” The city conceded as much in the initial study supporting its negative declaration. CEQA, however, does not demand an exhaustive comparative analysis of relative environmental detriments for every alternative course of action. It requires an EIR only for those aspects of a project likely to have significant environmental effects. Section 21151, subdivision (b), governing local agency preparation of EIRs, specifies that “any significant effect on the environment shall be limited to substantial, or potentially substantial, adverse changes in physical conditions which exist within the area as defined in Section 21060.5.” (Italics added.) Section 21060.5 refers to “the physical conditions which exist within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, [and] objects of historic or aesthetic significance.”
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.
The only strictly local impacts of the ban appear to be those related to the transportation of paper bags, and possibly their disposal. It did not require a detailed study to conclude that the increased vehicle traffic and related effects stemming from the delivery of paper bags to Manhattan Beach businesses would be minimal. Nor was it necessary for the city to attempt a thorough analysis of the additional garbage that might result from the use of paper instead of plastic carry- out bags. While the Court of Appeal majority faulted the city for not providing information on whether it had a landfill that would be affected by increased paper bаg use, the initial study noted that the city “represents a small proportion of regional landfill users.” A reasonable inference is that solid waste from Manhattan Beach is taken to a regional landfill or landfills used by a variety of refuse sources in the surrounding area. The city properly anticipated that there would be no increase from those establishments already using paper bags, that some consumers would switch from plastic to reusable bags, that some would recycle their paper bags, 9 and that the number of Manhattan Beach consumers is small enough that the increase in the regional solid waste stream caused by discarded paper bags would be insignificant.
The other environmental impacts reflected in the record are those that might be felt beyond Manhattan Beach, as a result of processes associated with the manufacture, distribution, and reсycling of paper bags in general. We have noted that the area defined by section 21060.5, that is, the area that will be affected by a proposed project, may be greater than the area encompassed by the project itself. 9 In addition to banning plastic bags, Ordinance No. 2115 requires all paper bags provided by establishments in the city to be recyclable “using Manhattan Beach‟s available recycling collection programs.”
“ „[T]he project area does not define the relevant environment for purposes of
CEQA when a project‟s environmental effects will be felt outside the project
area.‟ [Citation.] Indeed, „the purpose of CEQA would be undermined if the
appropriate governmental agencies went forward without an awareness of the
effects a project will have on areas outside of the boundaries of thе project area.‟
[Citation.]” (
Muzzy Ranch Co. v. Solano County Airport Land Use Com.
,
supra
,
This does not mean, however, that an agency is required to conduct an
exhaustive analysis of all conceivable impacts a project may have in areas outside
its geographical boundaries. “ „[T]hat the effects will be felt outside of the project
area . . . is one of the factors that determines the amount of detail required in any
discussion. Less detail, for example, would be required where those effects are
more indirect than effects felt within the project area, or where it [would] be
difficult to predict them with any accuracy.” (
Muzzy Ranch Co. v. Solano County
Airport Land Use Com.
,
The impacts of this project in areas outside Manhattan Beach itself are both
indirect and difficult to predict. The actual increase in paper bag use as a result of
the ordinance is necessarily uncertain, given that some percentage of local
residents may be expected to turn to the city‟s favored alternative, reusable bags.
Moreover, the city could hardly be expected to trace the provenance of all paper
bags that might be purchased by Manhattan Beach establishments, in order to
evaluate the particular impacts resulting from their manufacture. Accordingly,
under the approach we endorsed in
Muzzy Ranch Co. v. Solano County Airport
*22
Land Use Com. supra
,
The city properly concluded that a ban on plastic bags in Manhattan Beach would have only a minuscule contributive effect on the broader environmental impacts detailed in the paper bag “life cycle” studies relied on by plaintiff. Given the size of the city‟s population (well under 40,000) and retail sector (under 220 establishments, most of them small), the increase in paper bag production following a local change from plastic to paper bags can only be described as insubstantial.
As the city conceded at oral argument, the analysis would be different for a
ban on plastic bags by a larger governmental body, which might precipitate a
significant increase in paper bag consumption. In the courts below, plaintiff
referred to the cumulative impacts the Manhattan Beach ordinance might have in
conjunction with similar laws enacted or cоntemplated elsewhere, including bans
in San Francisco and Santa Monica, and possible bans in Oakland, Los Angeles
County, and even statewide. (See § 21083, subd. (b)(2);
Environmental
Protection Information Center v. California Dept. of Forestry & Fire Protection
,
, 44 Cal.4th at pp. 524-525;
Sierra Club v. West Side Irrigation Dist.
(2005)
( footnote continued on next page ) *23 In sum, the Court of Appeal erred by concluding there was substantial evidence to support a fair argument that Manhattan Beach‟s plastic bag ordinance might significantly affect the environment. While some increase in the use of paper bags is foreseeable, and the production and disposal of paper products is generally associated with a variety of negative environmental impacts, no evidence suggests that paper bag use by Manhattan Beach consumers in the wake of a plastic bag ban would contribute to those impacts in any significant way.
It is well settled that “CEQA is to be interpreted „to afford the fullest
possible protection to the environment within the reasonable scope of the statutory
language.‟ [Citation.]” (
Mountain Lion Foundation v. Fish & Game Com.
(1997)
( footnote continued from previous page )
small-scale projects, that prospect does not appear in this сase. 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.
Common sense in the CEQA domain is not restricted to the exemption
provided by the regulatory guideline discussed in
Muzzy Ranch Co. v. Solano
County Airport Land Use Com.
,
DISPOSITION
We reverse the judgment of the Court of Appeal.
CORRIGAN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CROSKEY, J. *
___________________________
* Associate Justice, Court of Appeal, Second Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
See next page for addresses and telephone numbers for cоunsel who argued in Supreme Court. Name of Opinion Save the Plastic Bag Coalition v. City of Manhattan Beach __________________________________________________________________________________ Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted
XXX
Rehearing Granted
__________________________________________________________________________________ Opinion No. S180720
Date Filed: July 14, 2011
__________________________________________________________________________________ Court: Superior
County: Los Angeles
Judge: David P. Yaffe
__________________________________________________________________________________ Counsel:
Robert V. Wadden, Jr., City Attorney, for Defendant and Appellant.
John B. Murdock for Heal the Bay as Amicus Curiae on behalf of Defendant and Appellant.
Remy, Thomas, Moose and Manley, James G. Moose, Ashle T. Crocker and Jennifer S. Holman for Californians Against Waste as Amicus Curiae on behalf of Defendant and Appellant.
Briscoe Ivester & Bazel, Christian L. Marsh and Peter S. Prows for League of California Cities and California State Association of Counties as Amicus Curiae on behalf of Defendant and Appellant. Carico Johnson Toomey and William G. Benz for The Manhattan Beach Residents Association as Amicus Curiae on behalf of Defendant and Appellant.
Stephen L. Joseph for Plaintiff and Respondent.
M. Reed Hopper and Joshua P. Thompson for Pacific Legal Foundation as Amicus Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion): James G. Moose
Remy, Thomas, Moose and Manley
455 Capitol Mall, Suite 210
Sacramento, CA 95814
(916) 443-2745
Christian L. Marsh
Briscoe Ivester & Bazel
155 Sansome Street, Seventh Floor
San Francisco, CA 94104
(415) 402-2700
Stephen L. Joseph
350 Bay Street, Suite 100-328
San Francisco, CA 94133
(415) 577-6660