Originally Published: October 14, 2016 6 a.m.
PHOENIX – A judge has quashed a bid by a Tempe council member to challenge a state law that bars cities from regulating plastic bags and mandating recycling.
In a decision with implications for cities around the state, Maricopa County Superior Court Judge Douglas Gerlach ruled Thursday that Lauren Kuby has no legal standing because Tempe does not currently have an ordinance that would run afoul of the legislative ban. The judge said only after the council acts would he have the right to decide whether it is preempted by state law.
And Gerlach said it’s irrelevant that the council had given Kuby permission to try to craft such an ordinance and she already had done some work.
Yet the judge conceded there is a risk to Tempe in waiting.
He noted a new state law approved earlier this year allows the attorney general, at the behest of any state lawmaker, to investigate and decide that a local government has acted contrary to the wishes of the legislature. More to the point, such a finding paves the way for a city to lose all of its state aid, what Gerlach called “a rather serious penalty.”
“It’s as if they’re damned if they do and damned if they don’t,” the judge said, leaving cities powerless to contest a state restriction without first enacting it and risking the loss of millions of dollar.
Gerlach’s finding that Kuby cannot sue also effectively precludes similar lawsuits by members of other city councils in Tucson, Flagstaff and elsewhere who are weighing their own recycling laws – or at least were until the legislature voted to preclude them.
Potentially more significant, it also leaves unresolved, at least for the moment, the question of how much power city councils throughout the state have to enact local laws have when state lawmakers have other ideas.
That issue is particularly acute for the 18 cities, including Prescott, that have taken advantage of a provision in the Arizona Constitution which permits them to establish their own charters.
Arizona courts have repeatedly ruled that charter cities are free to enact their own laws on strictly local issues, regardless of what state lawmakers say. That has, for example, enabled charter cities to set their own dates for local elections.
And attorney Joy Herr-Cardillo of the Arizona Center for Law in the Public Interest, who is representing Kuby, contends that trash, collected by the city, is, by definition, a strictly local issue.
Thursday;s ruling does not, however, end this lawsuit: The city of Bisbee, which already has a similar restriction on its books, already has interceded in this case and can pursue its own challenge to the state statute.
But the Bisbee’s ordinance was enacted before the 2015 state law. That that means it need not depend on arguing the illegality of state preemption – the basis for Kuby’s claim – and instead could simply say the legislature cannot repeal what it already had in place.
The 2015 law makes it illegal for any community to impose any sort of fee or deposit on the use of “auxiliary containers.” That includes everything from soda bottles and cups to disposable bags “used for transporting merchandise or food.”
It came three years after Bisbee adopted an ordinance imposing a nickel-a-bag tax on disposable bags. Retailers get to keep 2 cents for the cost of the bags and administering the fee; the balance goes to a fund to provide reusable carryout bags and promote conservation and recycling.
But Herr-Cardillo told Gerlach Thursday the 2015 law also was clearly aimed at what Kuby was trying to do.
Her ordinance would have banned single-use plastic bags at groceries and retail outlets. It also would have allowed merchants to charge at least a time for a paper bag for their customers who did not bring a reusable sack.
The law, said Herr-Cardillo, stopped the ordinance in its tracks. And she said the new law adopted earlier this year threatening cities with loss of all state revenue sharing has had a “chilling effect” on efforts to revive the discussion.
But Assistant Attorney General Michael Hrnicek told Gerlach that only those who suffer a “distinct palpable injury” from a law have a right to challenge it.