ALBANY — The plastic shopping bag ban that goes into effect at 12:01 a.m. Sunday will be toothless for the first month.
Facing a court challenge to the ban, the state Department of Environmental Conservation agreed Friday afternoon that it would not enforce the regulations contained within the ban, which include fines for retailers of up to $500 per violation.
The move came as a judge denied the temporary restraining order sought by the plaintiffs, who are a Long Island manufacturer of plastic shopping bags; a Bronx man and the bodega he operates; and an industry association representing 5,000 bodegas and other stores in New York state.
In legal papers filed Thursday in state Supreme Court, Albany County, their attorneys had charged that the state’s rules were contradictory and unworkable, would damage the plaintiffs and would alienate their customers.
Later Friday afternoon, the state DEC repeated what it had indicated previously — that it had not planned to immediately enforce the ban on the lightweight bags given to shoppers at checkout counters 23 billion times a year in New York and typically used for an average of 12 minutes each. It had planned outreach and education, even without being hauled into court.
The rules for what constitutes a legal reusable alternative to throwaway plastic carryout bags were finalized very late in the process, just 13 days before the ban is to take effect, contributing to retailer confusion.
Responding Friday, DEC said that ban — and its public and retailer education efforts — will go forward as planned.
In a prepared statement, it said: “The Department of Environmental Conservation is pleased that a temporary restraining order was not issued in this case so New York’s ban on single-use plastic bags will go into effect as planned March 1. We have consistently said since the beginning of our outreach campaign that we will focus on education rather than enforcement and today does not change that.”
The decision will likely have little bearing on many large and chain retailers, who as a group have spent months preparing alternatives to plastic bags and could not easily reverse course now even if they wanted to. (Some of these retailers supported the move away from plastic bags, if not the manner in which the state implemented the ban. Some stopped using plastic bags even before the deadline arrived.)
Schenectady-based Golub Corp., operator of Price Chopper and Market 32 supermarkets, said Friday: “We’ve invested a great deal of time and resources readying our stores, teammates and customers for this law — which essentially changes the way we order, warehouse, distribute, display, stock, sign and pack bags — to take effect on March 1. We intend to comply with it, as written.”
The retailers mounting the legal challenge to the ban are mostly independent and small, operating small corner stores, many of them in poorer neighborhoods where residents may have no other option for buying their groceries.
Attorneys for Poly-Pak Industries, Franciso Marte and his Green Earth Food Corp., and The Bodega and Small Business Association sought a temporary restraining order to halt implementation of the bag ban as they pursued permanent blockage.
The court papers say:
- There are practical contradictions in the legislation creating the ban and legal missteps in its implementation; the ban itself is inconsistent, vague, arbitrary, capricious and unconstitutional.
- Poly-Pak is a family-owned business with 210 employees in Melville, Long Island, that makes heavy-duty reusable shopping bags that meet the strength/durability requirements of New York and all other places with bag restrictions, but which will now be illegal in New York because they are less than the 10-mil thickness New York requires.
- To make a reusable plastic product that’s legal in New York, Poly-Pak will have to retool and reformat its equipment and develop a 10-mil bag, losing productivity and income in the process and ultimately increasing its products’ carbon footprint.
- DEC had no factual basis to impose the 10-mil rule.
- Vagueness of the state’s rules leaves the merchants to speculate what types of reusable bags are legal.
- Marte, his Bronx bodega, and the other bodegas are being simultaneously required and forbidden to make reusable bags available due to contradictions in the law.
- New York’s bag ban will cause the plaintiffs to lose sales and customer goodwill by banning plastic bags at a time when insufficient wholesale supplies of paper and cloth bags are available, leaving the plaintiffs unable to give their customers any way to carry their purchases home.
- The state has not made multilingual efforts to reach out to the Spanish-, Arabic- and Korean-speaking retailers who operate many of the 13,000 small grocery stores in New York City alone.
- The bag law violates the state constitution by granting manufacturers of cloth, fabric and paper bags advantage over those that make reusable plastic bags.
- DEC has engaged in legislative policy-making without proper statutory basis.
- The plaintiffs’ attorneys want the bag ban and the law behind it to be declared void and ask that the state be temporarily and permanently restrained from enforcing its provisions. They also seek award of plaintiffs’ costs in the matter.
On Thursday, after the court papers were filed, the DEC said in a prepared statement: “This frivolous and nonsensical suit seeks to undermine the State’s nearly yearlong campaign to educate New Yorkers — consumers and retailers — about this long-awaited and widely supported law to reduce the scourge of plastic bag waste in our communities and our environment. DEC and the State will vigorously oppose this misguided litigation and will defend the law and DEC’s regulations.”
Following up after Friday’s court proceeding, the DEC told The Daily Gazette that its intention all along had been to reach out and educate first, enforce second. It also noted a section of State Environmental Conservation Law written for the plastic bag ban specifically states that first-time offenders will be given only a warning. Second offenses are subject to a $250 fine, and further offenses are each subject to $500 fines.
The matter is scheduled to be back in court March 24.