Pittsburgh, Philadelphia, proceed to ban plastic luggage as Pa’s proper of first refusal nears its finish
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HARRISBURG – Cities and towns hoping to ban plastic bags within their borders may finally have legal authority to do so in Pennsylvania.
When the Republican-controlled legislature passed the state budget last week, it did not renew the nationwide right of first refusal on single-use plastics, which opened the door for cities and towns to approve new bans or enforce existing bans.
Officials and activists from Philadelphia to Pittsburgh hailed the decision as a victory for reducing plastic pollution. Philadelphia and some of the surrounding townships had filed lawsuits to challenge the state’s early repayment penalty, alleging it was unconstitutional in a draft budget.
“I wouldn’t be surprised if we saw a number of churches are quick to try to get their own guidelines into the book,” said David Masur, executive director of PennEnvironment and a proponent of the ban.
Masur told Spotlight PA that he has spoken to officials from at least nine cities, towns and cities who have expressed an interest in enacting a local bag ban – and there could be more.
The ban prevention first came into effect in 2019 through a Republican-backed provision on the legislative package that makes up the state budget.
This provision banned local governments from enacting new rules for plastic bags or packaging for a year and instructed two government agencies to investigate the environmental and economic impact of the measure. Senate President Pro Tempore Jake Corman, R-Center County, said at the time that he introduced it because there was a plastics manufacturer in his district and a community considering a plastic bag fee.
The legislature extended this right of first refusal in 2020 and expanded its scope: The legislature has banned both the enactment and enforcement of plastic bag bans, which means that municipalities with already existing bans can no longer legally apply them.
The determination should end on July 1 this year or six months after the governor’s pandemic declaration of emergency ends – whichever comes later. Legislators ended the emergency ordinance earlier this month, which means that the current right of first refusal will officially expire on December 8th.
In interviews this week, Republican lawmakers refused to say why they didn’t move on to extending the ban this year.
Jason Thompson, a spokesman for Corman, declined to answer questions about the decision, citing “pending litigation”.
That lawsuit was filed against the state and lawmakers earlier this year by the City of Philadelphia, Lower Merion Township, and West Chester and Narberth counties. The four local governments are asking the Commonwealth Court to declare the ban on plastic bags unconstitutional. PennEnvironment and the City of Pittsburgh have joined the pending lawsuit.
Thompson said in a statement that there are currently no plans to extend the preemption, but that Republicans “will continue to evaluate the issue in the coming months to see if another extension is warranted.”
The Republicans first tried in 2017 to limit the local plastic bag ban through a separate bill, which Governor Tom Wolf, a Democrat, vetoed. The legislature then inserted the preemption in 2019 in a budget-related bill called the Fiscal Code.
“The governor has opposed this policy because it anticipates local decision-making, and also for environmental reasons,” Wolf spokeswoman Lyndsay Kensinger said in a statement to Spotlight PA.
Kensinger did not say whether the governor voted for the pre-emption to expire during budget negotiations.
The citywide plastic bag ban in Philadelphia will go into effect next month, but it won’t be fully enforced and implemented until April 2022. An extended period of contact and training will help “increase compliance” and “maintain broad awareness of the law” among retailers and consumers similarly, said Kevin Lessard, assistant communications director for Philadelphia.
Pittsburgh City Council member Erika Strassburger also wants her city limits to be used by plastic bags. The council passed a resolution in May declaring its intention to ban plastic bags inside city limits.
She said Pittsburgh had begun planning ways to implement the ban before it knew the right of first refusal was about to expire. But the city now has a clearer timetable as to when it can officially introduce and enforce a ban. The council plans to follow in Philadelphia’s footsteps with an extended period of contact and feedback.
“The reason we don’t introduce it tomorrow – we could, if we wanted, we’re done with the language – but… it’s important, in my opinion, to make sure that as many voices are heard in advance that you can takes the time to listen to different voices, ”said Strasbourg.
Although Republican lawmakers could extend the ban when the General Assembly convenes again this fall, they would have less leverage to do so. Should they manage to pass an independent pre-emptive law, Wolf will probably veto it again.
Alex Baloga, president of the Pennsylvania Food Merchants Association, said his organization is against the banning of bags because it could competitively disadvantage retailers in communities where such bans exist.
“The public expects to be given some sort of bag when they shop,” Baloga said. “For decades and decades they have believed that it’s something that comes along, it’s part of the experience.”
State Representative Greg Vitali, D-Delaware County, minority chairman of the House Environmental Resources and Energy Committee, argued that the decision should ultimately be a local one.
“In my opinion, the real problem is local control and the authority of the communities to solve their local problems as best they can for them and their constituents if they want to exercise them,” he said.
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