No. 16-0748 FILED 16-0748 11/7/2016 9:14:36 PM tex-13672757 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK IN THE SUPREME COURT OF TEXAS CITY OF LAREDO, TEXAS, Petitioner, v. LAREDO MERCHANTS ASSOCIATION, Respondent. PETITION FOR REVIEW Kristina Laurel Hale First Assistant City Attorney State Bar No. 24001044 khale@ci.laredo.tx.us CITY OF LAREDO, TEXAS 1110 Houston Street Laredo, Texas 78040 Telephone: (956) 791-7318 Facsimile: (956) 791-7494 Andrea Broyles State Bar No. 24082744 andrea.broyles@bracewelllaw.com BRACEWELL LLP 1445 Ross Avenue, Suite 3800 Dallas, Texas 75202 Telephone: (214) 468-3800 Facsimile: (800) 404-3970 Dale Wainwright State Bar No. 00000049 dale.wainwright@bracewelllaw.com BRACEWELL LLP 111 Congress Avenue, Suite 2300 Austin, Texas 78701 Telephone: (512) 472-7800 Facsimile: (800) 404-3970 Brian Hogue State Bar No. 24094725 brian.hogue@bracewelllaw.com BRACEWELL LLP 711 Louisiana Street, Suite 2300 Houston, Texas 77002 Telephone: (713) 223-2300 Facsimile: (800) 404-3970 COUNSEL FOR PETITIONER THE CITY OF LAREDO, TEXAS
IDENTITIES OF PARTIES AND COUNSEL Petitioner City of Laredo, Texas Trial Counsel for Petitioner Raul Casso CITY ATTORNEY Kristina K. Laurel Hale FIRST ASSISTANT CITY ATTORNEY 1110 Houston Street Laredo, Texas 78040 Telephone: (956) 791-7318 Facsimile: (956) 791-7494 Appellate Counsel for Petitioner Dale Wainwright BRACEWELL LLP 111 Congress Avenue, Suite 2300 Austin, Texas 78701 Telephone: (512) 472-7800 Facsimile: (800) 404-3970 Andrea Broyles BRACEWELL LLP 1445 Ross Avenue, Suite 3800 Dallas, Texas 75202 Telephone: (214) 468-3800 Facsimile: (800) 404-3970 Kristina Laurel Hale First Assistant City Attorney CITY OF LAREDO, TEXAS 1110 Houston Street Laredo, Texas 78040 Telephone: (956) 791-7318 Facsimile: (956) 791-7494 Brian Hogue BRACEWELL LLP 711 Louisiana Street, Suite 2300 Houston, Texas 77002 Telephone: (713) 223-2300 Facsimile: (800) 404-3970 -i-
Respondent Laredo Merchants Association Trial Counsel for Respondent Gabriel C. Gonzalez Christopher C. Peterson LOPEZ PETERSON, PLLC Colonnade Square I 101 West Hillside, Suite 1 Laredo, Texas 78041 Telephone: (956) 718-2134 Facsimile: (956) 718-2045 Appellate Counsel for Respondent James B. Harris THOMPSON & KNIGHT LLP One Arts Plaza 1722 Routh Street, Suite 1500 Dallas, Texas 75201 Telephone: (214) 969-1700 Facsimile: (214) 969-1751 Gabriel C. Gonzalez Christopher C. Peterson LOPEZ PETERSON, PLLC Colonnade Square I 101 West Hillside, Suite 1 Laredo, Texas 78041 Telephone: (956) 718-2134 Facsimile: (956) 718-2045 -ii-
TABLE OF CONTENTS IDENTITIES OF PARTIES AND COUNSEL... i INDEX OF AUTHORITIES... iv STATEMENT REGARDING RECORD REFERENCES... vi STATEMENT OF THE CASE... vii TERMS AND PARTY REFERENCES... viii STATEMENT OF JURISDICTION... ix ISSUE PRESENTED... xi INTRODUCTION... 1 STATEMENT OF FACTS... 4 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 8 I. The Solid Waste Disposal Act Does Not Regulate Commercial Use of Checkout Bags.... 8 A. Section 361.0961 of the SWDA Does Not Preempt the Ordinance.... 8 B. The Language and Context of Section 361.0961 Support the City s Interpretation of the Section.... 9 C. The Court of Appeals Failed to Properly Consider the Ordinance s Stated Purposes....11 D. The City Is Authorized by Law to Regulate the Distribution of Checkout Bags....16 II. Section 361.0961 Does Not Preempt the Ordinance with Unmistakable Clarity....18 PRAYER...20 CERTIFICATE OF SERVICE...22 CERTIFICATE OF COMPLIANCE...23 APPENDIX -iii-
INDEX OF AUTHORITIES Page(s) Cases BCCA Appeal Grp. v. City of Houston, No. 13-0768, 2016 Tex. LEXIS 352 (Tex. 2016)... 19 20 City of Brookside Village v. Comeau, 633 S.W.2d 790 (Tex. 1982)... 17 Continental Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393 (Tex. 2000)... 14 Dallas Merch. s & Concessionaire s Ass n v. City of Dallas, 852 S.W.2d 489 (Tex. 1993)... 19 Harris Cty. v. Eaton, 573 S.W.2d 177 (Tex. 1978)... 10 11 Lumbermens Mut. Cas. Co. v. Manasco, 971 S.W.2d 60 (Tex. 1998)... 14 Mira Mar Dev. Corp. v. City of Coppell, 421 S.W.3d 74 (Tex. App. Dallas, no pet.)... 16 Southern Crushed Concrete v. City of Houston, 398 S.W.3d 676 (Tex. 2013)... 12, 13 Tex. Dep t of Transp. v. Needham, 82 S.W.3d 314 (Tex. 2002)... 10 Statutes TEX. CIV. PRAC. & REM. CODE 101.0215(9)... 17 TEX. CIV. PRAC. & REM. CODE 101.0215(32)... 17 TEX. GOV T CODE 22.001(a)(1)... ix TEX. GOV T CODE 22.001(a)(3)... ix, x TEX. GOV T CODE 22.001(a)(6)... ix -iv-
TEX. HEALTH & SAFETY CODE 361.001 et seq.... 14, 15 TEX. HEALTH & SAFETY CODE 361.002(a)... 8 TEX. HEALTH & SAFETY CODE 361.003(7)... 8 TEX. HEALTH & SAFETY CODE 361.003(18)... 2 TEX. HEALTH & SAFETY CODE 361.003(25)... 9 TEX. HEALTH & SAFETY CODE 361.003(34)... 8 TEX. HEALTH & SAFETY CODE 361.003(35)... 8 TEX. HEALTH & SAFETY CODE 361.003(38)... 9 TEX. HEALTH & SAFETY CODE 361.008... 10 TEX. HEALTH & SAFETY CODE 361.422... 14 TEX. HEALTH & SAFETY CODE 361.0961(a)(1)...9, 10, 11, 13, 16, 17 TEX. HEALTH & SAFETY CODE 361.0961(a)(3)... 12 TEX. HEALTH & SAFETY CODE 365.001 et seq.... 16 TEX. HEALTH & SAFETY CODE 365.001.... 15 TEX. HEALTH & SAFETY CODE 431.002(27)... 11 TEX. LOC. GOV T CODE 551.002... 17 TEX. LOC. GOV T CODE 552.001... 17 TEX. LOC. GOV T CODE 552.001(b)... 17 Other Authorities H.B. 2416, 83rd, R.S. (2013)... 19 -v-
STATEMENT REGARDING RECORD REFERENCES The Clerk s Record is cited as CR:Page#. The Reporter s Record is cited as RR:Page#. -vi-
STATEMENT OF THE CASE Nature of the case: In this suit, Respondent, the Laredo Merchants Association, challenges the City of Laredo s ordinance that regulates the distribution of single-use checkout bags by commercial establishments within the City s limits. The Association alleges that the ordinance is void because it is preempted by section 361.0961 of the Texas Health and Safety Code. Trial court: Trial court s disposition: Court of appeals disposition: Hon. Rebecca Ramirez Palomo, 341st District Court, Webb County, Texas. The trial court granted the City s motion for summary judgment holding that the City s ordinance was valid and not preempted by section 361.0961 of the Texas Health and Safety Code. (3CR:613 14). The trial court denied the Association s cross-motion for summary judgment. (3CR:613 14). The Association s motion for reconsideration or, in the alternative, for new trial, was overruled by operation of law. (3CR:629 44). The Association filed a notice of appeal on September 29, 2015. (3CR:649 50). The Fourth Court of Appeals reversed the trial court. Chief Justice Marion authored the memorandum opinion which Justice Barnard joined. Justice Chapa authored a dissenting opinion. -vii-
TERMS AND PARTY REFERENCES City of Laredo, Texas Laredo Merchants Association Checkout Bag Reduction Ordinance Solid Waste Disposal Act 361.0961 of the Texas Health & Safety Code Solid Waste Disposal Act Solid Waste Disposal Act 361.001 et seq. of the Texas Health & Safety Code Texas Clean Air Act Texas Clean Air Act 382.001 et seq. of the Texas Health & Safety Code Texas Commission on Environmental Quality Laredo or City Association or LMA Ordinance 2014-O-064 or Ordinance Section 361.0961 or Provision SWDA or Act TCAA TCEQ Texas Litter Abatement Act TLAA Texas Litter Abatement Act 365.001 et seq. of the Texas Health & Safety Code -viii-
STATEMENT OF JURISDICTION The Association challenges the validity of the City s ordinance that bans the distribution of single-use checkout bags by commercial establishments, alleging that the Checkout Bag Reduction Ordinance is preempted by section 361.0961 of the SWDA. This issue is of great importance to the jurisprudence of the State in clarifying when broad, one-size-fits-all statutes do not preempt local ordinances targeted to address legitimate local necessities. Guidance from this Court is needed as many cities throughout Texas have adopted or are considering adopting similar ordinances. See TEX. GOV T CODE 22.001(a)(1, 3, 6); see (Appendix K) Chart of Texas Cities with Checkout Bag Prohibitions. The court of appeals preemption decision erred for several reasons. First, it held that section 361.0961 preempts the Ordinance, but it does not because stated purposes of the Ordinance are maintenance of the stormwater sewer system, protection of life and property from flooding exacerbated by plastic bags that clog sewers and drains, and reduction in costs from trash control. These purposes are not preempted by section 361.0961 which is targeted to address solid waste management. Second, as the trial court correctly concluded, reasonable interpretations exist to allow both section 361.0961 and the Ordinance to be in effect, and the Association failed to meet its burden to establish that the Ordinance was preempted with unmistakable clarity. -ix-
The court of appeals reversed the trial court s decision under a flawed interpretation of section 361.0961 that improperly expands the scope of the SWDA. This Court s guidance is needed to effect the stated limits on the scope of the Act and affirm that section 361.0961 does not preempt the Ordinance with unmistakable clarity. See TEX. GOV T CODE 22.001(a)(3). -x-
ISSUE PRESENTED The trial court determined that the City of Laredo s Checkout Bag Reduction Ordinance which regulates the distribution of single-use checkout bags by commercial establishments within the City s limits was valid and not preempted by section 361.0961 of the Texas Health and Safety Code. Did the Court of Appeals err in reversing the trial court s decision and concluding the ordinance was preempted by section 361.0961 of the Texas Health and Safety Code? -xi-
INTRODUCTION There are important principles at stake in this appeal. First, the State desperately needs this Court to accurately circumscribe the scope of the SWDA. The Association s position is a breathtaking extension of the scope of the SWDA, and it convinced the court of appeals to accept it. The SWDA is intended to control the management of solid waste. However, the Association pronounced: In short, solid waste management consists of the systematic control of activities that result in plastic, cartons, and other trash being discarded into the environment. Brief of Appellant at 13. The Association defines plastic and cartons and other trash, without limitation, as trash. Whether displayed on a commercial shelf for sale or in a purchaser s home being put to beneficial use, the Association concludes that plastic and cartons are trash or litter. It further argued that any activities that result in these items being discarded are also encompassed in solid waste management. Not coincidentally, the Association s approach sweeps all such items into the definition of solid waste and preempts all municipal regulation of plastic, cartons, and other trash being discarded under section 361.0961. Contrary to the Association s clear overreach, solid waste includes litter, but logically and pursuant to the SWDA s language and structure, it does not include all plastic
and carton items before they are discarded, simply because they could one day end up in a landfill. The fundamental flaw in the appellate court s reasoning was accepting the Association s view that all products that may carry other items, including singleuse checkout bags, are encompassed within the purview of solid waste and therefore solid waste management. Second, the Association and the appellate opinion give no interpretive effect to the fact the legislature wrote an explicit limitation into the provision as the sine qua non for application of section 361.0961 a local ordinance must serve a solid waste management purpose to be considered for preemption. Accepting the Association s stated view, the court of appeals erroneously held that single-use checkout bags are rubbish and are therefore solid waste, and solid waste management includes regulation of the provision of single-use checkout bags to customers. (Appendix C at 12)(citing section 361.003(18)). Laredo does not contend that cities may avoid the application of the provision by superficially reframing an ordinance s stated purpose. However, where, as here, the City s stated purposes are clearly legitimate, and the City s intended and actual conduct further the stated, legitimate objectives, section 361.0961 is inapplicable. -2-
Third, section 361.0961 must be interpreted as written and to give effect to express limitations within the provision as well as its statutory context. The court of appeals definition of container or package a container of flexible material with an opening at the top, used for carrying things casts too wide a net for its context, leading to numerous unintended consequences. (Appendix C at 10 11). For example, that definition includes an expensive purse, a student s school backpack, and an inexpensive checkout bag. The appellate court failed to recognize the importance of statutory context and instead relied on a dictionary definition that leads to absurd consequences. Finally, once one presumes that any plastic or paper checkout bag that has not been discarded is, nevertheless, rubbish and by definition is included in solid waste management, then preemption erroneously follows. This presumption of the Association is inherently at odds with the high standard of unmistakable clarity required for statutory preemption of local ordinances. This considered standard is intended to ensure that municipalities may promulgate valid ordinances with legitimate local objectives to reduce litter and flooding, save lives, protect property, maintain sewer systems, and reduce maintenance costs caused by identified local activity. After years of study, the City adopted the Ordinance for these legitimate objectives to retard the provision by commercial establishments of single-use -3-
checkout bags to customers except as provided in the Ordinance. The Ordinance is valid and is not preempted by section 361.0961. STATEMENT OF FACTS The City adopted the Ordinance to combat an extensive problem with singleuse checkout bags. The single-use checkout bags were infiltrating the City s sewer system and drains, causing the City to incur substantial costs associated with floatable trash controls and the maintenance of its system. Each year, the City spends an average of $340,000 to clean up single-use checkout bags found within the City, not only in its sewer system, but on its streets, fences, and vegetation. (Appendix H at 60). Even after the City s substantial cleanup efforts, the 120 million single-use checkout bags used in Laredo each year continued to infiltrate the City, obstructing the sewer system, causing or exacerbating flooding, and running up maintenance costs. (Appendix D at 2). To alleviate this problem, the City adopted the Ordinance making it unlawful for any commercial establishment to provide checkout bags to customers except as outlined by this ordinance. (Appendix D at 3). The Ordinance states its purposes and goals. A. To promote the beautification of the City through prevention of litter generated from discarded checkout bags. B. To reduce costs associated with floatable trash controls and the maintenance of the municipal separate stormwater sewer system. -4-
C. To protect life and property from flooding that is a consequence of improper stormwater drainage attributed in part to obstruction by litter from checkout bags. (Appendix D at 2). In adopting the Ordinance, the City also considered the protection the Ordinance would provide to its wildlife and rivers that were being poisoned by the single-use checkout bags. (Appendix I at 7). Approximately one month before the Ordinance s effective date of April 30, 2015, the Association sued the City, alleging that the SWDA preempted the City s efforts to protect its citizens, property, and wildlife. (1CR:13 19). The City filed a motion for summary judgment, and the Association filed a cross-motion for summary judgment. (2CR:289,352,415). The trial court granted the City s motion for summary judgment and denied the Association s cross-motion, concluding that the Ordinance was valid and was not preempted by section 361.0961, and included findings to support its conclusions. (Appendix A). On appeal, the Fourth Court of Appeals reversed the trial court s judgment and remanded the cause to the trial court for consideration of the issue of attorney s fees. (Appendix C at 14). SUMMARY OF THE ARGUMENT The Ordinance is a valid exercise of the City s authority and is not preempted by section 361.0961 of the SWDA. The Association has failed to show, much less show with unmistakable clarity, that section 361.0961 preempts the Ordinance because the Ordinance is not inconsistent with at least three of the -5-
necessary tenets of the Section. Although the Ordinance does 1) prohibit or restrict 2) the sale or use of specified items, it does not regulate the items 3) for solid waste management purposes, it does not address the use 4) of a container or package, and the Ordinance is 5) otherwise authorized by state law. Accordingly, the Ordinance is not subject to the prohibition in section 361.0961(a). An ordinance will only be unenforceable to the extent that it conflicts with a subject matter unmistakably withdrawn from a city s purview. The only subject matter that section 361.0961 withdraws from a city s authority is solid waste management, and the Ordinance s prohibition on the distribution of single-use checkout bags is not solid waste management. The Ordinance does not attempt to regulate the flow of the solid waste stream to a landfill, nor does it attempt to regulate the permitting or method of processing solid waste. To the contrary, the Ordinance addresses litter control, the maintenance of its utility systems, flood prevention, and protection of the City s wildlife and rivers, none of which are purposes preempted by the legislature with unmistakable clarity. See (2CR:548); (Appendix I at 7). The SWDA was enacted to manage the solid waste stream that is deposited into the state s landfills, due to concerns that the state would face a shortage of capacity for solid waste disposal. Thus, the provisions of the SWDA focus on regulating the transportation, collection, processing, disposal, handling, and storage -6-
of solid waste. Prohibiting low value, single-use checkout bags does not intersect with these types of activities regulated by the SWDA. In fact, tellingly, the legislature included section 361.0961 in the Permits Subchapter of the SWDA that addresses the requirements for permits to handle, transport, process, or store solid waste, and the procedure to obtain such permits. The Association s assertion, adopted by the court of appeals, that essentially any portable item, that could be used to contain other items and could end up in a landfill, cannot be regulated locally is nonsensical. The single-use checkout bags regulated by the Ordinance are not containers or packages as contemplated by the SWDA. When section 361.0961 is properly construed and viewed in context of the entire Act, it is clear that a container is intended to encompass a closed or sealable vessel for identified purposes, which does not include a checkout bag. Notwithstanding the foregoing, even if the Court determines that the Ordinance concerns a container or package for solid waste management purposes, the Ordinance is still valid and enforceable because the City has the authority to adopt the ordinance under other state laws. Sections 551.002 and 552.001 of the Local Government Code grant the City the authority to enact an ordinance to protect its watersheds, control its sewer system, and prohibit the pollution of its -7-
streams and tributaries. Accordingly, the City had the authority to adopt the Ordinance. To preempt a subject matter from municipal regulation, the legislature must do so in clear and unmistakable language. Because the legislature did not in this case, the Ordinance is valid and enforceable. ARGUMENT I. The Solid Waste Disposal Act Does Not Regulate Commercial Use of Checkout Bags. A. Section 361.0961 of the SWDA Does Not Preempt the Ordinance. Texas passed the Solid Waste Disposal Act to safeguard the health, welfare, and physical property of the people and to protect the environment by controlling the management of solid waste. TEX. HEALTH & SAFETY CODE 361.002(a). Solid Waste is the discarded material resulting from commercial operations, and disposal means putting that discarded material into or on land or water in a manner that might introduce it into the environment. Id. 361.003(7), (34) (35). In other words, the SWDA enables the Texas Commission on Environmental Quality to regulate where Texans can leave their trash and how it gets there. Consistent with that purpose, Texas, not its municipalities, decides what type of trash goes into what type of container: A local government or other political subdivision may not adopt an ordinance, rule, or regulation to: prohibit or restrict, for solid waste management purposes, the sale or -8-
use of a container or package in a manner not authorized by state law. Id. 361.0961(a)(1). The SWDA s implementing regulations define container as Any portable device in which a material is stored, transported, or processed. 30 TAC 330.3(30). Storage means the temporary holding of solid waste, after which the solid waste is processed, disposed of, or stored elsewhere. TEX. HEALTH & SAFETY CODE 361.003(38). Processing is preparing solid waste for reuse or disposal. Id. at 361.003(25). Transporting is carrying something from one place to another. Simply put, an SWDA container is a movable device that holds, carries, or prepares trash for disposal. So, a municipality cannot prohibit or restrict the sale or use of a device used for solid waste management. But, an Ordinance that requires a merchant to use a certain type of bag if its customer needs one to carry merchandise away from the store does not have anything to do with solid waste management and putting merchandise in a checkout bag is not the generation of solid waste. The express language of the statute does not preempt the Ordinance. B. The Language and Context of Section 361.0961 Support the City s Interpretation of the Section. A single-use checkout bag is not a container or package as contemplated by the SWDA, but a one-time-use carryout bag that is provided by a commercial -9-
establishment, such as a grocery store, to a customer at the point of sale. (Appendix D at 2). The plain language of section 361.0961 and its surrounding provisions evidence that the legislature did not intend to prohibit a local government from regulating the containers retailers give their customers for carrying home purchased goods. Instead, the legislature intended to regulate the containers where citizens can place their trash. TEX. HEALTH & SAFETY CODE 361.0961(a)(1). Furthermore, in the SWDA, container is referred to as a closed or sealable vessel. Id. 361.008; 361.091(a). For example, Section 361.008 refers to the storage of hazardous waste in containers, tanks, or other closed vessels. Id. 361.008. A court will construe a statute to provide consistent meaning to the same word used throughout a statute. Tex. Dep t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). Thus, the legislature s use of container throughout the SWDA as a closed or sealable vessel should uniformly apply to its use of the same term ( container ) in section 361.0961. Additionally, the meaning of individual words may be ascertained by reference to words associated with them in the statute; and... where two or more words of analogous meaning are employed together in a statute, they are understood to be used in their cognate sense, to express the same relations and give color and expression to each other. Harris Cty. v. Eaton, 573 S.W.2d 177, 181-10-
(Tex. 1978). Cognate sense means that the words are to be understood in their related sense. Id. Section 361.0961 restricts the use or sale of a container or package. TEX. HEALTH & SAFETY CODE 361.0961(a)(1). Package is defined in another chapter of the Health and Safety Code as any container or wrapping in which a consumer commodity is enclosed for use in the delivery or display of that consumer commodity to retail purchasers. Id. 431.002(27). Container and package understood together in their cognate sense evidence an intent of the legislature to refer only to a type of sealed or sealable vessel or wrapping. A single-use checkout bag is not a sealed or sealable vessel or wrapping. Accordingly, viewing the words container and package within the context of the SWDA yields the conclusion that container and package do not include a single-use checkout bag. C. The Court of Appeals Failed to Properly Consider the Ordinance s Stated Purposes. As an initial matter, a checkout bag given to a customer at the point of sale is not solid waste because it has yet to be discarded. And, the Ordinance does not tell a retailer or a retailer s customers what they can purchase or use to discard their solid waste. An Ordinance that restricts what a customer can be given in order to carry home merchandise from a store does not evince a solid waste management purpose. But, if there was any doubt, the City codified the purpose of the Ordinance: it (1) prevents litter, (2) reduces costs associated with floatable trash -11-
controls and sewer-system maintenance, and (3) protects life and property from flooding. (Appendix D at 2). In adopting the Ordinance, the City also considered the protection the Ordinance would provide to the City s wildlife and rivers that were being poisoned by the single-use checkout bags. (Appendix I at 7). In its Opinion, the court of appeals dismissed the City s specified purposes for adopting the Ordinance and decided that the Ordinance must fail because a contrary holding would allow a city to circumvent preemption by passing ordinances that proposed to regulate something other than a subject matter reserved by the state. (Appendix C at 13). But, even if that were so, those consequences would result from the vagueness of the statute not the Ordinance. All the legislature had to do was delete for solid waste management purposes from the statute to leave the following: A local government or other political subdivision may not adopt an ordinance, rule, or regulation to: prohibit or restrict the sale or use of a container or package in a manner not authorized by state law. Indeed, that s precisely what the legislature did two sentences later: A local government or other political subdivision may not adopt an ordinance, rule, or regulation to: assess a fee or deposit on the sale or use of a container of package. TEX. HEALTH & SAFETY CODE 361.0961(a)(3). In support of this conclusion, the court of appeals misapplied Southern Crushed Concrete v. City of Houston, 398 S.W.3d 676, 679 (Tex. 2013). -12-
(Appendix C at 13). In Southern Crushed Concrete, a provision of the TCAA did not allow the Court to consider the actual purpose for which an ordinance was adopted because the provision itself did not recognize a distinction. Unlike the provision at issue in Southern Crushed Concrete, section 361.0961 includes an explicit limitation on its scope the local government regulation is affected only if it is for solid waste management purposes. TEX. HEALTH & SAFETY CODE 361.0961(a)(1). Therefore, the plain language of section 361.0961 requires an inquiry into the intent of the City when adopting the Ordinance. (Appendix E at 3). The SWDA does not define solid waste management, so in support of the argument that the Ordinance is preempted by section 361.0961, the court of appeals and the Association relied on the definitions of solid waste, rubbish and management provided in section 361.003 of the SWDA. (Appendix C at 12 13). The court of appeals held that despite the Ordinance s stated purposes, the Ordinance was adopted for solid waste management purposes because the Ordinance was adopted to control the generation of solid waste as produced by litter resulting from discarded checkout bags. Id. The court of appeals holding is based on its conclusion that the regulation of litter in all instances is a solid waste management purpose under section 361.0961. Id. However, the court of appeals conclusion is based on an interpretation that views section 361.0961 and the -13-
applicable definitions in isolation, ignores the remaining provisions of the SWDA, and expands the scope of the SWDA beyond the intent of the legislature. See Lumbermens Mut. Cas. Co. v. Manasco, 971 S.W.2d 60, 64 (Tex. 1998). These overly broad interpretations of solid waste management go beyond the intended purpose of section 361.0961 and the SWDA, and, if applied, would lead to unintended restrictions on the governing authority of home-rule cities. This Court has emphatically stated that statutory provisions must be construed in their surrounding context, which limit the scope or function of an individual provision. See Continental Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 397 (Tex. 2000). The scope and purpose of the SWDA is to reduce and control the waste that is deposited into Texas landfills or other solid waste management facilities. (Appendix F at 1; Appendix G at 1). Thus, the provisions in the SWDA that focus on regulating the transportation, processing, disposal, exchange and storage of solid waste are not in tension with the Ordinance. TEX. HEALTH & SAFETY CODE 361.001 et seq. The provisions of the SWDA that address generation of solid waste focus on the state s goal of reducing the amount of the solid waste stream that is deposited into landfills and other solid waste facilities. See, e.g., TEX. HEALTH & SAFETY CODE 361.422. Conversely, section 361.0961 is not placed within the provisions that address reducing the solid waste stream. Section 361.0961 is -14-
contained within Subchapter C of the SWDA that regulates the permitting requirements for the transportation, storage, processing, or disposal of solid waste into landfills and other solid waste facilities and the procedures to obtain such permits. See id. 361.061 361.126. In properly construing section 361.0961 in the context of the SWDA, the legislature limited the scope of solid waste management to the management of the solid waste stream that is deposited into landfills or other solid waste facilities. The Ordinance does not attempt to regulate checkout bags for solid waste management purposes. The City s first stated purpose is to beautify the City through the reduction of litter. (Appendix D at 2). The Health and Safety Code differentiates between the disposal of solid waste and litter. Title 5, Subtitle B of the Health and Safety Code is entitled Solid Waste, Toxic Chemicals, Sewage, Litter, and Water. Subtitle B contains fifteen chapters, under which solid waste disposal and litter are addressed by separate and distinct chapters. Chapter 361, entitled Solid Waste Disposal Act, contains provisions addressing municipal solid waste disposal in landfills, but does not contain any provisions addressing litter. See TEX. HEALTH & SAFETY CODE 361.001 et seq. Instead, Chapter 365, entitled Litter, and known as the Texas Litter Abatement Act, contains provisions regarding litter. Id. 365.001. Notably, there are no restrictions under -15-
the TLAA regarding a local government s power to prohibit the use of a container to prevent litter. Id. 365.001 et seq. Equally, the City s purposes of reducing the costs of maintaining its sewer system and protecting life and property from flooding are not solid waste management purposes under the SWDA. To the contrary, the City is protecting lives and property put at risk by obstruction of the City s sewer system. See Mira Mar Dev. Corp. v. City of Coppell, 421 S.W.3d 74, 87 (Tex. App. Dallas, no pet.). Moreover, the Texas Attorney General has recognized that an ordinance passed for the protection of animal life is a purpose other than solid waste management. (Appendix E at 3). Accordingly, there are multiple reasonable interpretations that leave both section 361.0961 and the Ordinance in effect. The court of appeals holding expands the scope of the SWDA to make the Ordinance and section 361.0961 repugnant to each other. In this case, the Ordinance falls outside of the restrictions of section 361.0961. D. The City Is Authorized by Law to Regulate the Distribution of Checkout Bags. Section 361.0961 provides that a city may not adopt an ordinance that prohibits or restricts, for solid waste management purposes, the sale or use of a container or package, unless it is authorized to do so by state law. TEX. HEALTH & -16-
SAFETY CODE 361.0961(a)(1). Even if the Ordinance prohibits or restricts a container or package and was adopted for solid waste management purposes, the City is still permitted to regulate checkout bags if authorized by another state law. Id. Under its police power, the City validly adopted the Ordinance to prevent litter, maintain its sewer system, protect life and property from flooding, and prevent poisoning of its streams and killing wildlife. City of Brookside Village v. Comeau, 633 S.W.2d 790, 793 (Tex. 1982); (Appendix D at 2); (Appendix I at 7). The prevention of flooding is unquestionably a legitimate governmental interest for which the City is specifically authorized to undertake. TEX. LOC. GOV T CODE 551.002. Section 551.002 of the Local Government Code provides that a home-rule municipality may provide for the protection of and may police any watersheds. Id. Additionally, section 552.001 of the Local Government Code provides that a municipality may construct, operate and regulate a sewer system in a manner that protects the interest of the municipality. Id. 552.001(b). These provisions constitute other state laws authorizing the City to adopt the Ordinance to protect its sewer system. Interestingly, under Texas law, a city can be liable for damage caused by the city s sewer system, including damages caused by the backup of the sewer system. Id. 552.912(a); TEX. CIV. PRAC. & REM. CODE 101.0215(9), (32). It would be -17-
an absurd result that a city could be held liable for damages, but not have any authority to act to prevent such damage. By including the language in a manner not authorized by law, the legislature avoided this result. II. Section 361.0961 Does Not Preempt the Ordinance with Unmistakable Clarity. If the court of appeals and the Association are correct that the City s objectives for enacting the Ordinance are barred by section 361.0961, the thousands of cities and other communities across Texas would be unable to address related problems of litter, flooding, wildlife protection, or other issues if those problems arise from single-use checkout bags. This interpretation improperly strips local governments power to address important local issues without meeting the required legal standard. The legislature knows how with unmistakable clarity to prohibit action by municipalities. Comparing the current language of section 361.0961 with proposed bills that unmistakably would have prohibited single-use checkout bags illustrates why the section 361.0961 does not meet the unmistakable clarity preemption standard. The legislature has attempted, without success, to enact statutes that would clearly restrict a local government from regulating the distribution of checkout bags. Specifically, in the 83rd legislative session, the legislature considered House Bill 2416 that would amend the Texas Business and Commerce Code to include a provision stating: An ordinance or regulation -18-
adopted by a local government purporting to prohibit or restrict a business from providing to a customer at the point of sale a bag, package, or other container made from any material is invalid and has no effect. H.B. 2416, 83rd, R.S. (2013). Clear and unmistakable language that would preempt a city from adopting ordinances prohibiting single-use checkout bags can be found in House Bill 2416. Id. However, such language has yet to be passed by the legislature. In the Texas Alcohol and Beverage Code, the legislature clearly and unmistakably preempted a city s ability to regulate where alcoholic beverages are sold when it added section 109.57 to the Code providing it is the intent of the legislature that this code shall exclusively govern the regulation of alcoholic beverages in this state. Dallas Merch. s & Concessionaire s Ass n v. City of Dallas, 852 S.W.2d 489, 491 92 (Tex. 1993). Conversely, there is no clear and unmistakable language in the SWDA that withdraws the City s power to regulate the distribution of single-use checkout bags. In fact, Section 361.0961 is ambiguous and does not preempt such action with unmistakable clarity. Even if this Court determines that the Ordinance is partially preempted by section 361.0961, the Ordinance will still be valid if it can be enforced for any of its purposes. An ordinance that attempts to regulate a subject matter preempted by a state statute is unenforceable only to the extent that it conflicts with the state statute. BCCA Appeal Grp. v. City of Houston, No. 13-0768, 2016 Tex. LEXIS -19-
352, at *12 (Tex. 2016). The City adopted the Ordinance for three separate purposes stated in the Ordinance and two additional objectives also supported by the Council. See (Appendix J at 7). Consequently, if any portion of the Ordinance is valid, the City should be able to enforce the Ordinance to that extent. Id. PRAYER For these reasons, Petitioner City of Laredo, Texas prays that the Court grant this petition for review and reverse the judgment of the court of appeals. Additionally, the City prays for such further relief to which it may be entitled. -20-
Respectfully submitted, BRACEWELL LLP By: /s/ Dale Wainwright Dale Wainwright State Bar No. 00000049 dale.wainwright@bracewelllaw.com 111 Congress Avenue, Suite 2300 Austin, Texas 78701 Telephone: (512) 472-7800 Facsimile: (800) 404-3970 Andrea Broyles State Bar No. 24082744 andrea.broyles@bracewelllaw.com 1445 Ross Avenue, Suite 3800 Dallas, Texas 75202 Telephone: (214) 468-3800 Facsimile: (800) 404-3970 Brian Hogue State Bar No. 24094725 brian.hogue@bracewelllaw.com 711 Louisiana Street, Suite 2300 Houston, Texas 77002 Telephone: (713) 223-2300 Facsimile: (800) 404-3970 FIRST ASSISTANT CITY ATTORNEY Kristina Laurel Hale State Bar No. 24001044 khale@ci.laredo.tx.us 1110 Houston Street Laredo, Texas 78040 Telephone: (956) 791-7318 Facsimile: (956) 791-7494 COUNSEL FOR PETITIONER CITY OF LAREDO, TEXAS -21-
CERTIFICATE OF SERVICE I certify that a copy of the Petition for Review was served on counsel of record by E-File on the 7th day of November 2016, addressed as follows: James B. Harris james.harris@tklaw.com THOMPSON & KNIGHT LLP One Arts Plaza 1722 Routh Street, Suite 1500 Dallas, Texas 75201 Telephone: (214) 969-1700 Facsimile: (214) 969-1751 Gabriel C. Gonzalez ggonzalez@lopezpeterson.com Christopher C. Peterson cpeterson@lopezpeterson.com LOPEZ PETERSON, PLLC Colonnade Square I 101 West Hillside, Suite 1 Laredo, Texas 78041 Telephone: (956) 718-2134 Facsimile: (956) 718-2045 Counsel for Respondent Laredo Merchants Association /s/ Dale Wainwright Dale Wainwright -22-
CERTIFICATE OF COMPLIANCE This brief complies with the length limitations of TEX. R. APP. P. 9.4(i)(3) because this brief consists of 4,470 words, excluding the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1). /s/ Dale Wainwright Dale Wainwright -23-
Tab A Final Judgment (3 CR 613 14) APPENDIX Tab B Tab C Court of Appeals Judgment Court of Appeals Memorandum Opinion, Laredo Merchs. Ass n v. City of Laredo, No. 04-15-00610-CV, 2016 Tex. App. LEXIS 8901 (Tex. App. San Antonio Aug. 17, 2016) Tab D Ordinance 2014-O-064 (2 CR 379 84) Tab E Attorney General Opinion No. GA-1078 (2 CR 440 44) Tab F House Research Organization s Bill Analysis of Senate Bill 963 (2 CR 387 91) Tab G Committee on Environmental Regulation s Bill Analysis of Senate Bill 963 Tab H City of Laredo City Council Minutes dated April 21, 2014 (2 CR 465 541) Tab I City of Laredo City Council Minutes dated June 2, 2014 (2 CR 542 584) Tab J Texas Health and Safety Code 361.0961 Tab K Chart of Texas Cities with Checkout Bag Prohibition
TAB A
LAREDO MERCHANTS ASSOCIATION Plaintiff \'. CITY OF LAREDO Defendant FINAL JlJDGEMENT AND AMENDED ORDER GRANTING DEFENDANT CITY OF LAREDO'S MOTION FOR SUMMARY JUDGEMENT AND DENYING PLAINTIFF LAREDO MERCHANT'S ASSOCIATION MOTION FOR SUMl\.1ARY JUDGMENT On or about June 29, 2015, came to be considered the Cross Motions for Summary Judgment file by both the Plaintiff and Defendant in the above entitled and numbered cause. After considering I the pleadings, motions, responses, replies, evidence, argument of counsel and other materials, the Court finds as follows: 1) The only question before this Court is whether Section 361.0961 of the Texas Solid Waste Disposal Act preempts the City's authority to enact City of Laredo Ordinance 2014 0-064, known as the Checkout Bag Reduction Ordinance; 2) There are no genuine issues of material fact, and the parties are entitled to judgment as a matter of law; 3) Reasonable constructions exist under which both Section 361.0961 of the Texas Solid Waste Disposal Act and City of Laredo Ordinance 2014-0-064 could both be left in effect; 4) Plaintiff has failed to meet its burden of showing that the Legislature intended to preempt the Ordinance with ''unmistakable clarity," and thus, failed to meet its extraordinary burden to establish that the ordinance is invalid; 5) Plaintiff has failed.to establish the elements necessary to be entitled to injunctive and declaratory relief; 613
6) Ordinance 2014-0-064 was adopted by the Laredo City Council under its police powers to accomplish legitimate goals related to the health, safety, or general welfare of the people; 7) The City of Laredo Checkout Bag Reduction is not preempted by state law and is valid; 8) Defendant City of Laredo's Motion for Summary Judgment is GRANTED in all respects; 9) Plaintiff Laredo Merchants Association's tvtotion for Summary Judgment is DENIED in all respects; 10) The Court overrules Plaintiffs Objections and Motion to Strike Defendant's Motion for Summary Judgment; 11) The Court denies Plaintiffs Motion for Post Appearance Default; 12) All other relief prayed for by either party and not specifically awarded is hereby denied. THEREFORE, IT IS ORDERED that this judgment is final, supersedes all temporary orders, disposes of all claims and parties, and is appealable. IT IS FURTHER ORDERED that each party bear their own costs and anomey fees incurred in this matter. Signed this {~~of July, 2015. D u ge Beckie Palomo, 341 st District Court Page 2 614
TAB B
Fourth Court of Appeals San Antonio, Texas JUDGMENT No. 04-15-00610-CV LAREDO MERCHANTS ASSOCIATION, Appellant v. CITY OF LAREDO, Texas, Appellee From the 341st Judicial District Court, Webb County, Texas Trial Court No. 2015-CVQ-00-1077-D3 Honorable Rebecca Ramirez Palomo, Judge Presiding BEFORE CHIEF JUSTICE MARION, JUSTICE BARNARD, AND JUSTICE CHAPA In accordance with this court s opinion of this date, the trial court s judgment is REVERSED and judgment is RENDERED in favor of the Laredo Merchants Association that section 33-455 of the Laredo City Code of Ordinances is preempted by section 361.0961 of the Solid Waste Disposal Act, and therefore unenforceable as a matter of law. The cause is REMANDED to the trial court to consider the issue of attorney s fees. We order that appellant Laredo Merchants Association, recover its cost of appeal, if any, from appellee City of Laredo. SIGNED August 17, 2016. Marialyn Barnard, Justice
TAB C
Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-15-00610-CV LAREDO MERCHANTS ASSOCIATION, Appellant v. CITY OF LAREDO, Texas, Appellee From the 341st Judicial District Court, Webb County, Texas Trial Court No. 2015-CVQ-00-1077-D3 Honorable Rebecca Ramirez Palomo, Judge Presiding Opinion by: Marialyn Barnard, Justice Dissenting Opinion by: Luz Elena D. Chapa, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice Delivered and Filed: August 17, 2016 REVERSED, RENDERED AND REMANDED This is a statutory construction case in which we must determine whether section 361.0961 of the Solid Waste Disposal Act ( the Act ) preempts a checkout bag ordinance enacted by the City of Laredo ( the City ) City of Laredo Ordinance No. 2014-O-064, codified at section 33-455 of the Laredo City Code of Ordinances ( the Ordinance ). On appeal, appellant Laredo Merchants Association ( the Merchants ) argues the trial court erred in granting the City s motion for summary judgment because the Ordinance is preempted by section 361.0961. Because we conclude the Ordinance is inconsistent with section 361.0961 and therefore preempted by it, we
04-15-00610-CV reverse the trial court s judgment, render judgment in favor of the Merchants, and remand the cause to the trial court to determine whether the Merchants are entitled to an award of attorney s fees. BACKGROUND In December 2003, the City implemented a strategic plan aimed at creating a trash-free city. As part of this strategic plan, the City adopted the Ordinance on June 2, 2014, with an effective date of April 30, 2015. Designed to reduce litter from discarded plastic bags, the Ordinance makes it unlawful for commercial establishments to provide checkout bags to customers. Laredo, Tex., Laredo City Code 33-451, 33-455. According to the Ordinance, the phrase checkout bag refers to any plastic one-time-use carryout bag that is provided by a commercial establishment to a customer at the point of sale and is less than 4 Mils thick... or a single-use paper bag. Id. 33-454. The Ordinance also includes a list of exceptions 1 and provides that a violation subjects retailers to a fine of up to $2,000.00 per violation. Id. 33-461. Approximately one month before the Ordinance was to take effect, the Merchants filed suit against the City, seeking declaratory and injunctive relief. In its suit, the Merchants asked the trial court to declare the Ordinance unenforceable because it is preempted by section 361.0961 of the Act. See TEX. HEALTH & SAFETY CODE 361.0961 (West 2016) (prohibiting local governments 1 The Ordinance does not apply to the following bags: Id. at 33-459. 1. Laundry dry cleaning bags, door-hanger bags, newspaper bags, or packages of multiple bags intended for use as garbage, pet waste, or yard waste; 2. Bags provided by pharmacists or veterinarians to contain prescription drugs or other medical necessities; 3. Bags used by restaurants to take away prepared food; 4. Bags used by a consumer inside a business establishment to [contain bulk food, frozen food, flowers and plants, or prepared food]; and 5. Bags used by a non-profit or charity to distribute [food and household items]. - 2 -
04-15-00610-CV from adopting ordinance that prohibits or restricts, for solid waste management purposes, sale or use of container or package in manner not authorized by state law). The Merchants also sought a temporary restraining order to enjoin the City from enforcing the Ordinance. 2 Ultimately, the City filed a traditional motion for summary judgment, contending section 361.0961 of the Act does not preempt the Ordinance because, as a matter of law, section 361.0961 does not clearly and unmistakably prohibit a city from banning checkout bags as defined by the Ordinance. In its motion, the City argued: (1) a checkout bag as defined by the Ordinance is not a container or package within the meaning of section 361.0961; (2) the Ordinance does not regulate checkout bag use for solid waste management purposes; (3) the City is authorized to regulate checkout bags under section 551.002 of the Local Government Code; and (4) the Ordinance is a valid exercise of the City s police power. See TEX. LOC. GOV T CODE 551.002 (West 2015) (providing that home-rule municipality may prohibit pollution and protect watersheds). In response, the Merchants filed a cross motion for partial summary judgment, arguing section 361.0961 of the Act preempts the Ordinance because the Ordinance is essentially inconsistent with, and therefore preempted by, section 361.0961 as a matter of law. According to the Merchants, the Ordinance is inconsistent with section 361.0961 because: (1) a checkout bag as defined by the Ordinance is a container or package as provided in section 361.0961; and (2) the Ordinance s purpose is to regulate solid waste management. The Merchants also argued that whether the Ordinance is within the City s authority under section 551.002 of the Local Government Code or within its police power is irrelevant to the preemption issue. See id. 2 After a temporary injunction hearing, the Ordinance was amended to clarify it prohibited the sale of checkout bags. The amended version reads, It shall be unlawful for any commercial establishment to provide in any manner including for free, by sale or otherwise, checkout bags to customers except as outlined by this article. Laredo, Tex. Ordinance 2015-O-057 (April 27, 2015). This amended version has not yet been codified. - 3 -
04-15-00610-CV After reviewing the motions, the trial court granted summary judgment in favor of the City and denied the Merchants motion. In its final judgment, the trial court declared a reasonable construction exists under which both the Ordinance and section 361.0961 of the Act could be effective, and therefore, section 361.0961 does not preempt the Ordinance. The Merchants then perfected this appeal. ANALYSIS On appeal, the Merchants argue the trial court erred in granting the City s traditional motion for summary judgment because the Ordinance is inconsistent with and therefore preempted by section 361.0961 of the Act as a matter of law. According to the Merchants, the Ordinance is preempted by section 361.0961 because: (1) it prohibits or restricts the sale or use of containers or packages; (2) it was adopted for a solid waste management purpose; (3) the manner in which it prohibits the use of checkout bags is not within the City s police power; and (4) it is clearly and unmistakably at odds with section 361.0961. Standard of Review We review a trial court s grant of summary judgment de novo. Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015); City of San Antonio v. Greater San Antonio Builders Ass n, 419 S.W.3d 597, 600 (Tex. App. San Antonio 2013, pet. denied). Traditional summary judgment is proper only when the movant establishes there is no genuine issue of material fact and it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); BCCA Appeal Grp., Inc. v. City of Hous., No. 13-0768, 2016 WL 1719182, at *2 (Tex. April 29, 2016); Katy Venture, 469 S.W.3d at 163; Greater San Antonio Builders Ass n, 419 S.W.3d at 600-01. We take all the evidence favorable to the nonmovant as true, and we indulge every reasonable inference and resolve any doubts in favor of the nonmovant. BCCA Appeal Grp., Inc., 2016 WL 1719182 at *2; Katy Venture, Ltd., 469 S.W.3d at 163; Greater San Antonio Builders Ass n, 419-4 -
04-15-00610-CV S.W.3d at 600. Once the movant meets this burden of establishing each element of its claim as a matter of law, the burden shifts to the nonmovant to disprove or raise a fact issue as to at least one of the elements of the movant s claim. Katy Venture, Ltd., 469 S.W.3d at 163. When, as is the case here, both parties move for summary judgment and the trial court grants one motion but denies the other, we review both motions and render the judgment the trial court should have rendered. BCCA Appeal Grp., Inc., 2016 WL 1719182 at *2; Tex. Mun. Power Agency v. Pub. Util. Comm n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). Applicable Law Preemption Laredo is a home-rule city. See City of Laredo v. Webb Cty., 220 S.W.3d 571, 574 (Tex. App. Austin 2007, no pet.). Home-rule cities possess broad discretionary powers of selfgovernment and look to the Legislature for limitations on their powers. TEX. LOC. GOV T CODE 51.072(a) (West 2008); BCCA Appeal Grp., Inc., 2016 WL 1719182 at *2 (citing Dall. Merch. s & Concessionaire s Ass n v. City of Dall., 852 S.W.2d 489, 490-91 (Tex. 1993)); Southern Crushed Concrete, LLC v. City of Hous., 398 S.W.3d 676, 678 (Tex. 2013); RCI Ent. (San Antonio), Inc. v. City of San Antonio, 373 S.W.3d 589, 595 (Tex. App. San Antonio 2012, pet. ref d) (specifying courts do not determine whether Legislature made grants of authority). A homerule city cannot enact an ordinance that contains a provision inconsistent with the constitution or general laws of the state. TEX. CONST. art. XI, 5(a); BCCA Appeal Grp., Inc., 2016 WL 1719182 at *2; Dall. Merch. s, 852 S.W.2d at 490-91; RCI Ent., 373 S.W.3d at 595. A home-rule city ordinance that attempts to regulate a subject matter preempted by a state statute is unenforceable to the extent it is inconsistent with the state statute. BCCA Appeal Grp., Inc., 2016 WL 1719182 at *2; Dall. Merch. s, 852 S.W.2d at 491; RCI Ent., 373 S.W.3d at 595. If the Legislature chooses to preempt a particular subject matter that is usually part of a home-rule city s broad discretionary powers, the Legislature must do so with unmistakable - 5 -
04-15-00610-CV clarity. BCCA Appeal Grp., Inc., 2016 WL 1719182 at *3; Southern Crushed Concrete, 398 S.W.3d at 678; Dall. Merch. s, 852 S.W.2d at 491; RCI Ent., 373 S.W.3d at 595. Merely because the Legislature has enacted a law addressing a particular subject matter does not automatically mean all of the subject matter is completely preempted. BCCA Appeal Grp., Inc., 2016 WL 1719182 at *2; Dall. Merch. s, 852 S.W.2d at 491; RCI Ent., 373 S.W.3d at 595. This is because [a] general law and a city ordinance will not be held repugnant to each other if any other reasonable construction leaving both in effect can be reached. BCCA Appeal Grp., Inc., 2016 WL 1719182 at *2; see also Dall. Merch. s, 852 S.W.2d at 491; RCI Ent., 373 S.W.3d at 595-96; Greater San Antonio Builders Ass n, 419 S.W.3d at 600. In other words, both the city ordinance and general law will be enforced so long as it is possible under any reasonable construction. BCCA Appeal Grp., Inc., 2016 WL 1719182 at *2; Dall. Merch. s, 852 S.W.2d at 491; RCI Ent., 373 S.W.3d at 595-96; Greater San Antonio Builders Ass n, 419 S.W.3d at 600-01. Nevertheless, if it is not possible to reconcile the city ordinance and general law, then the general law trumps the ordinance, making the ordinance unenforceable. BCCA Appeal Grp., Inc., 2016 WL 1719182 at *2; Dall. Merch. s, 852 S.W.2d at 491; RCI Ent., 373 S.W.3d at 595-96; Greater San Antonio Builders Ass n, 419 S.W.3d at 600-01. Application As stated above, the Merchants contend the Ordinance is preempted by section 361.0961 of the Act because it is inconsistent with section 361.0961 for the following reasons: (1) it prohibits or restricts the sale or use of containers or packages; (2) it was adopted for a solid waste management purpose; (3) the manner in which it prohibits the use of checkout bags is not within the City s police power; and (4) it is clearly and unmistakably at odds with section 361.0961. - 6 -
04-15-00610-CV 1. Police Powers and Unmistakable Clarity We begin our analysis by addressing the Merchants third and fourth arguments regarding whether the Ordinance is within the City s police powers and whether the Act limits that police power with unmistakable clarity. See BCCA Appeal Grp., Inc., 2016 WL 1719182 at *3 (addressing whether legislative limitation on home-rule municipality s police power appears with unmistakable clarity first); S. Crushed Concrete, 398 S.W.3d at 678; Dall. Merch. s, 852 S.W.2d at 491. Because these issues are similar, we will address them together. The City argues section 551.002 of the Local Government Code authorizes it to regulate litter from discarded plastic bags. Under that section, a home-rule city may prohibit the pollution of watersheds by policing water sources. See TEX. LOC. GOV T CODE 551.002. However, as set out above, the Legislature may limit a home-rule city s police power regarding a particular subject matter so long as that limitation appears with unmistakable clarity. See BCCA Appeal Grp., Inc., 2016 WL 1719182 at *3; S. Crushed Concrete, 398 S.W.3d at 678; Dall. Merch. s, 852 S.W.2d at 491; RCI Ent., 373 S.W.3d at 595. Thus, we must determine whether section 361.0961 of the Act limits the City s police power to prevent the pollution of watersheds with unmistakable clarity. See BCCA Appeal Grp., Inc., 2016 WL 1719182 at *3; S. Crushed Concrete, 398 S.W.3d at 678; Dall. Merch. s, 852 S.W.2d at 491; RCI Ent., 373 S.W.3d at 595. To do this, we must conduct a statutory construction analysis and ascertain the intent of the Legislature. See BCCA Appeal Grp., Inc., 2016 WL 1719182 at *3. Statutory construction is a question of law we review de novo. BCCA Appeal Grp., Inc., 2016 WL 1719182 at *3. When construing a statute, we must give effect to the Legislature s intent. Id. To determine the Legislature s intent, we start with the plain language of the statute and view the statute as a whole as opposed to viewing isolated provisions. Id. at *3, *6; Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). This is because the plain meaning of the text is the - 7 -
04-15-00610-CV best expression of legislative intent. BCCA Appeal Grp., Inc., 2016 WL 1719182 at *3; Molinet, 356 S.W.3d at 411. We do not consider statements made during the legislative process as evidence of the Legislature s intent. Molinet, 356 S.W.3d at 414. Rather, the Legislature expresses its intent by the words it enacts and declares to be the law. Id. When a statute defines a word, we are bound by that definition; however, we will apply ordinary meanings to undefined words unless a different or more precise meaning is apparent from the word s use. PlainsCapital Bank v. Martin, 459 S.W.3d 550, 556 (Tex. 2015); City of Hous. v. Bates, 406 S.W.3d 539, 543-44 (Tex. 2013); TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). When a statute is unambiguous, we adopt the interpretation supported by the plain language unless such an interpretation would lead to absurd results. TGS-NOPEC Geophysical Co., 340 S.W.3d at 439. With these rules in mind, we now consider whether section 361.0961 of the Act expresses the Legislature s intent to limit the City s police power to prevent the pollution of watersheds with unmistakable clarity. To begin, the Act governs the management and control of solid waste materials. TEX. HEALTH & SAFETY CODE 361.002; Citizens Against the Landfill in Hempstead v. Tex. Commission on Envtl. Quality, No. 03-14-00718-CV, 2016 WL 1566759, at *3 (Tex. App. Austin April 13, 2016, no pet.) (mem. op.) Its policy and purpose is to safeguard the health, welfare, and physical property of the people and to protect the environment by controlling the management of solid waste, including accounting for hazardous waste that is generated. TEX. HEALTH & SAFETY CODE 361.002; Citizens Against the Landfill in Hempstead, 2016 WL 1566759, at *3. In an effort to achieve this purpose, the Act authorizes the Texas Commission on Environmental Quality's ( TCEQ ) to regulate the management of municipal solid waste disposal. TEX. HEALTH & SAFETY CODE 361.011; Citizens Against the Landfill in Hempstead, 2016 WL 1566759, at *3. - 8 -
04-15-00610-CV Section 361.0961 of the Act states a local government may not adopt an ordinance that prohibit[s] or restrict[s], for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law. TEX. HEALTH & SAFETY CODE 361.0961. By its plain language, section 361.0961 specifically addresses a particular subject matter the sale or use of containers or packages for solid waste management purposes and is unmistakably aimed at prohibiting local governments from enacting certain ordinances. By prohibiting the adoption of an ordinance prohibiting or restricting that particular subject matter, section 361.0961 unmistakably limits a local government s police powers, including the police power outlined in section 551.002 of the Local Government Code. See BCCA Appeal Grp., Inc., 2016 WL 1719182 at *3; S. Crushed Concrete, 398 S.W.3d at 678; Dall. Merch. s, 852 S.W.2d at 491; RCI Ent., 373 S.W.3d at 595. Accordingly, we conclude the language of section 361.0961 of the Act unmistakably expresses the Legislature s desire to preempt any ordinance that prohibits the sale or use of a container or package for solid waste management purposes. See BCCA Appeal Grp., Inc., 2016 WL 1719182 at *3; S. Crushed Concrete, 398 S.W.3d at 678; Dall. Merch. s, 852 S.W.2d at 491; RCI Ent., 373 S.W.3d at 595. Because section 361.0961 expressly prohibits the adoption of any such ordinance, any ordinance prohibiting the sale or use of a container for solid waste management purposes cannot be in harmony with the statute. See BCCA Appeal Grp., Inc., 2016 WL 1719182 at *10. Thus, our next inquiry in determining whether the Ordinance is preempted is whether the Ordinance prohibits or restricts the sale or use of a container or package for solid waste management purposes. See BCCA Appeal Grp., Inc., 2016 WL 1719182 at *7; Dall. Merch. s, 852 S.W.2d at 491; RCI Ent., 373 S.W.3d at 595. This requires us to consider an analysis of the Merchants first and second arguments. - 9 -
04-15-00610-CV 2. Whether the Ordinance Prohibits or Restricts the Sale or Use of Containers or Packages According to the Merchants, the Ordinance is inconsistent with, and therefore preempted by, section 361.0961 of the Act because a checkout bag as defined by the Ordinance is a container or package within the meaning of section 361.0961. To support its position, the Merchants point to a Texas Attorney General opinion, which concludes that a single-use plastic bag is a container within the meaning of [section 361.0961 of the Act]. See Tex. Att y Gen. Op. No. GA-1078 (2014). The Merchants also point to a number of cases in which Texas courts have recognized plastic bags are a type of package. See, e.g., Davis v. State, 202 S.W.3d 149, 156-57 (Tex. Crim. App. 2006) (noting that drugs are commonly packaged, carried, or transported in plastic bags ); Yamaha Motor Corp. v. Motor Vehicle Div., Tex. Dep t of Transp., 860 S.W.2d 223, 228 (Tex. App. Austin 1993, writ denied) (holding plaintiff had obligations in regard to parts packaged in resealable plastic bags); Furr s Supermarkets, Inc. v. Arellano, 492 S.W.2d 727, 728 (Tex. Civ. App. El Paso 1973, writ ref d n.r.e.) (stating in slip and fall lawsuit product that spilled was packaged in plastic type bag). Neither section 361.0961 nor the Act define the terms container or package; therefore, we must apply an ordinary meaning to the terms. See PlainsCapital Bank, 459 S.W.3d at 556; Bates, 406 S.W.3d at 544; TGS-NOPEC Geophysical, 340 S.W.3d at 439. When determining the plain and ordinary meaning of a word, Texas courts often consult dictionaries to ascertain a word s natural meaning. Epps v. Fowler, 351 S.W.3d 862, 866 (Tex. 2011). Here, Webster s Third New International Dictionary defines bag as a type of container made of paper, cloth, mesh, metal foil, plastic, or other flexible material. WEBSTER S THIRD NEW INTERNATIONAL DICTIONARY 162 (2002) (emphasis added); see also THE NEW OXFORD AMERICAN DICTIONARY 119 (2d ed. 2005) (defining bag as a container of flexible material with an opening at the top, used for carrying - 10 -
04-15-00610-CV things ). Under an ordinary meaning analysis, we conclude a checkout bag or more specifically, a plastic one-time-use carryout bag or single-use paper bag is a type of container or package within the meaning of section 361.0961. See PlainsCapital Bank, 459 S.W.3d at 556; see also Tex. Att y Gen. Op. No. GA-1078 (2014) (concluding that single-use plastic bag is container within the meaning of section 361.061). The City argues that by using the terms package and container, the Legislature intended to refer only to closed vessels or wrappings and not checkout bags. We disagree. The plain language of section 361.0961 or the Act does not limit the terms containers or packages to closed vessels or wrappings as the City contends. See Tex. Att y Gen. Op. No. GA-1078 (2014). And although the City points to an explanation by the bill s sponsor that the bill was intended to prohibit municipalities from adopting rules regulating wasteful packaging, Styrofoam cups and bottle returns, we decline to consider or give weight to that explanation as such statements are not evidence of the Legislature s intent. See Molinet, 356 S.W.3d at 414. Instead, we must look to the plain language of section 361.0961 to determine what the Legislature intended. See id. Here, the plain language of section 361.0961 does not limit the types of containers or packages to closed vessels or wrappings; rather, it uses the words containers or packages, which by their plain meaning includes checkout bags. Accordingly, we conclude a checkout bag as defined by the Ordinance is a type of container or package as those terms are used in section 361.0961 of the Act. We now turn to our attention to our next inquiry: whether the Ordinance prohibits the sale or use of checkout bags for solid waste management purposes. See TEX. HEALTH & SAFETY CODE 361.0961. 3. Whether the Ordinance Was Adopted for Solid Waste Management Purposes The Merchants argue the Ordinance s express purpose is to manage solid waste by controlling the issuance of checkout bags by retailers to their customers. To support its position, - 11 -
04-15-00610-CV the Merchants point to the language of the Purpose and Goals section of the Ordinance, which states the Ordinance seeks to promote the prevention of litter. The City argues the Ordinance was not adopted for solid waste management purposes because the Ordinance does not regulate the management of solid waste. According to the City, the Ordinance was adopted with the intention of regulating the act of providing single-use bags to customers for holding and carrying away their purchases. The City explains that by regulating this activity, the Ordinance aims to prevent litter as opposed to managing solid waste. We, again, disagree with the City. To determine whether the Ordinance was adopted for a solid waste management purpose, we must once again conduct a statutory construction analysis and examine the meaning of solid waste management as defined by the Act. See BCCA Appeal Grp., Inc., 2016 WL 1719182 at *2; PlainsCapital, 459 S.W.3d at 556; Bates, 406 S.W.3d at 544. Here, the Act defines solid waste as garbage, rubbish, [and] refuse and management as the systematic control of the activities of generation, source separation, collection, handling, storage, transportation, processing, treatment, recovery, or disposal of solid waste. TEX. HEALTH & SAFETY CODE 361.003(18), (34). With this in mind, we turn our attention to the purposes outlined by the Ordinance. The Ordinance seeks to: A. To promote the beautification of the City through prevention of litter generated from discarded checkout bags. B. To reduce costs associated with floatable trash controls and the maintenance of the municipal separate stormwater sewer system. C. To protect life and property from flooding that is a consequence of improper stormwater drainage attributed in part to obstruction by litter from checkout bags. Laredo, Tex., Laredo City Code 33-451. When considering these purposes, we conclude the Ordinance was adopted to control the generation of solid waste as produced by litter resulting from discarded checkout bags. Here, the Ordinance identifies discarded checkout bags as litter, which - 12 -
04-15-00610-CV is naturally understood as refuse or rubbish, which in turn is a type of solid waste as defined by the Act. See id; see also TEX. HEALTH & SAFETY CODE 361.003 (34); WEBSTER S THIRD NEW INTERNATIONAL DICTIONARY 1322 (2002). The Ordinance then goes on to state it seeks to prevent the generation of litter a type of management activity. See TEX. HEALTH & SAFETY CODE 361.003 (18), (34). Although the City argues the prevention of litter is not within the meaning of management, we disagree because by prohibiting the sale and use of bags to prevent them from becoming litter, the Ordinance is regulating the generation of litter. Controlling the generation of solid waste is the management of solid waste as that term is defined by the Act. Furthermore, the City s argument ignores the underlying effect of the Ordinance. See id. 361.003 (18), (34). The Texas Supreme Court has stated that when determining whether an ordinance is preempted by a state law, Texas courts must consider not only the purpose of an ordinance as defined by that ordinance, but also the actual effect of that ordinance. See S. Crushed Concrete, 398 S.W.3d at 678-79 (recognizing that city can circumvent preemption by passing ordinances that purport to regulate something other than a subject matter reserved by the state). Here, the actual effect of the Ordinance is to manage solid waste by regulating litter produced from discarded checkout bags. See id. Thus based on the foregoing analysis, we hold the Ordinance is inconsistent with section 361.0961 of the Act and therefore unenforceable as a matter of law. See BCCA Appeal Grp., Inc., 2016 WL 1719182 at *2; Dall. Merch. s, 852 S.W.2d at 491; RCI Ent., 373 S.W.3d at 595; Greater San Antonio Builders Ass n, 419 W.W.3d at 600. The Ordinance does exactly what the Act intends to prevent regulate the sale or use of plastic bags for solid waste management purposes. We, therefore, hold the trial court erred in granting summary judgment in favor of the City, and we - 13 -
04-15-00610-CV reverse the trial court s judgment and render judgment that the Ordinance is preempted by section 361.0961 of the Act as a matter of law. Remand for Attorney s Fees The Declaratory Judgment Act states, [i]n any proceeding under this chapter, the court may award costs and reasonable and necessary attorney s fees as are equitable and just. TEX. CIV. PRAC. & REM. CODE ANN. 37.009 (West 2015); North Tex. Municipal Water Dist. v. Ball, 466 S.W.3d 314, 323-24 (Tex. App. Dallas 2015, no pet.) (remanding appeal involving cross motions for summary judgment to trial court for determination of attorney s fees). Here, in its petition and motion for summary judgment, the Merchants pled for attorney s fees as provided under the Declaratory Judgment Act. Because we are reversing the trial court s judgment and rendering summary judgment in the Merchants favor, we remand the cause for the trial court to reconsider the issue of attorney s fees. See TEX. CIV. PRAC. & REM. CODE ANN. 37.009 (West 2015); North Tex. Municipal Water Dist., 466 S.W.3d at 323-24. CONCLUSION Based on the foregoing, we reverse the summary judgment in favor of the City and render judgment in favor of the Merchants, holding that section 33-455 of the Ordinance is preempted by section 361.0961 of the Act, and therefore unenforceable as a matter of law. We also remand the cause to the trial court to determine whether the Merchants are entitled to an award of attorney s fees under the Declaratory Judgment Act. Marialyn Barnard, Justice - 14 -
TAB D
ORDINANCE 2014-0-064 AMENDING THE CITY OF LAREDO CODE OF ORDINANCES CHAPTER 33, ENVIRONMENTAL PROTECTION, ARTICLE VIII, PLASTIC CHECKOUT BAG REDUCTION, BY CHANGING NAME TO CHECKOUT BAG REDUCTION, ADDING SINGLE-USE PAPER BAG TO DEFINITIONS, CHANGING THE EFFECTIVE DATE TO APRIL 30, 2015, DELETING SEC. 33-457, AND PROVIDING EXEMPTIONS TO FURTHER CLARIFY EXEMPTIONS THAT ARE LISTED UNDER DEFINITIONS. Whereas, in December 2003, the City Council adopted a strategic plan that included a Clean City component which includes a goal to create a "trashfree city"; and, Whereas, as part of this comprehensive plan, the City has created the Keep Laredo Beautiful organization, implemented strategies to deal with the litter in downtown, and passed the Commercial Litter Prevention Ordinance; and, Whereas, the last element of the plan is to reduce litter from discarded plastic bags; and, Whereas, the reduction of litter from one-time-use plastic bags will help bring the City one step closer to being a trash-free city; and, Whereas, the results of a city wide survey reveals that big box retail, grocery stores, and convenience stores, are by far, the biggest generator of plastic checkout bag usage; and, Whereas, this is not a ban on plastic bags, but an incremental implementation plan towards a cleaner city; and, Whereas, City Council approved the Plastic Checkout Bag Ordinance on August 19, 2013; and, Whereas, City Council made motions to amend the Checkout Bag Ordinance on April 21, 2014; Whereas, City Council discussed and made motions to amend the Checkout Bag Ordinance on May 19, 2014; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LAREDO THAT: Section 1. Amendment. The City of Laredo Code of Ordinances, Chapter 33, Environmental Protection, Article VIII, be amended as follows: 379
Chapter 33, Article VIII Plastic Checkout Bag Reduction SEC. 33-451 PURPOSE AND GOALS: A. To promote the beautification of the City through prevention of litter generated from discarded ~ checkout bags. B. To reduce costs associated with floatable trash controls and the maintenance of the municipal separate stormwater sewer system. C. To protect life and property from flooding that is a consequence of improper stormwater drainage attributed in part to obstruction by litter from ptastig checkout bags. SEC. 33-452 SCOPE AND INTENT: This ordinance sets forth provisions, which regulate the distribution of~ checkout bags by commercial establishments within the city limits. SEC. 33-453 APPLICABILITY: The provisions of this ordinance shall apply to all commercial establishments as defined in this ordinance. SEC. 33-454 DEFINITIONS: For the purpose of this ordinance only, the following terms, words, phrases, and their derivations, shall have the meanings set forth below except where the context clearly indicates a different meaning. Checkout bag means a plastic one-time-use carryout bag that is provided by a commercial establishment to a customer at the point of sale and is less than 4 Mils thick (1 Mil is one thousandth of one inch), or a single-use paper bag. This does not include plastic or paper bags used in the sale and distribution of food stuffs such as meat, poultry, produce, etg:-laundrv. newspaper, waste bags, pharmaceutical bags, veterinarian bags. restaurant bags, and bags used in charity and fundraising events. Commercial establishment shall mean any commercial enterprise or establishment, including sole proprietorships, joint ventures, partnerships, corporations, or any other legal entity whether for profit or not and includes all employees of the business and any independent contractors associated with the 380
business that sells retail goods to the general public, including establishments located in the Central Business District as defined by the Official Zoning Map of the City of Laredo, Texas. Single-use paper bag means a checkout bag provided by a commercial establishment at the point of sale that is made from paper and contains old growth fiber and or contains less than forty percent post-consumer recycled material. Reusable bag means a bag with handles that is specifically designed and manufactured for multiple reuse and is either (1) made of cloth or other washable fabric, and/or (2) made of durable plastic that is at least 4 Mils thick (1 Mil is one thousandth of one inch). (3) a paper bag that contains no old growth fiber and a minimum of forty percent post-consumer recycled material. SEC. 33-455 GENERAL PROHIBITIONS: It shall be unlawful for any commercial establishment to provide~ checkout bags to customers except as outlined by this ordinance. SEC. 33-456 REQUIREMENTS AND TIMELINES: Upon adoption of this ordinance all commercial establishments (as defined under Sec. 33-454) shall notify their customers through signage of the following: 1.) Timeline for phasing out checkout bags. 2.) Customer's right to use their own reusable bags and or provided shopping cart to carry out their purchased goods. On January 10, 2015 April 30, 2015 all commercial establishments (as defined under Sec. 33-454) shall discontinue providing checkout bags to customers. Commercial establishments may provide reusable bags to customers for free or may charge a fee for reusable bags. Commercial establishments may also chose not to provide any bags to customers. SEC, 33-457 SURCWARG& FOR CHliCKOUT 8AG Tho intent of this section is to facilitate the transition by commercial establishments and cons1jmers to tt:ie 1Jse of reusable bags. To the e~ent single use bags are req1:1ested by a custofaer, an en\'ironr1ental fee of $[x.xx] per [trarsastior or eag] is hereby established and must be paid to the commercial estaelishment at the time the bag(s) is pro\'ided to the customer. The environmental fee i:emitted to or collected by the City shall be used towards environmental programs, recycling, litter prevention, and clean 1::1p initiatives. The f.ee shall be shown as a separate item on the consumer transaction receipt. 381
The erv. 1 ironmental fees eollected shall be remitted to the City by the eofrmersial establishment, less a reasonable administrative fee of 5% to FeFRain 'Nith the business to offset costs incurred~ { Motion 1: Option 1: Establishment of a per bag fee Amount in Dollars Motion 2: Option 2: $1.00 per transastion with limit of 15 cheskout bags Establishment of percentage (%) of fee that merchant may keep for an administrative fee J SEC. 33-459 EXEMPTIONS: This ordinance does not apply to: 1.) Laundry dry cleaning bags, door-hanger bags, newspaper bags. or packages of multiple bags intended for use as garbage, pet waste. or yard waste: 2.) Bags provided by pharmacists or veterinarians to contain prescription drugs or other medical necessities: 3.) Bags used by restaurants to take away prepared food*: 4.) Bags used by a consumer inside a business establishment to: a.) Contain bulk items, such as produce, nuts, grains. candy, or small hardware items, b.) Contain or wrap frozen foods, meat. or fish. whether or not prepackaged, c.) Contain or wrap flowers. potted plants or other items to prevent moisture damage to other purchases, or d.) Contain unwrapped prepared foods or bakery goods; and 5.) Bags used by a non-profit or charity to distribute food, grocery products, clothing, or other household items. *Note: Commercial establishments that sell prepared food may use \ checkout bags for customers to take away prepared food only. Checkdut bags for any other items are not permitted. SEC. 33 458 33 460 Reserved SEC 33-460 Reserved 382
SEC. 33-461 PENALTIES FOR NONCOMPLIANCE. Violation of the provisions of this ordinance by failure to comply with any of its requirements shall constitute a Class C misdemeanor. Any person who violates this ordinance or fails to comply with any of its requirements shall upon conviction thereof be fined not more than $2000.00 for each violation, and in addition shall pay all court costs and expenses involved in the case. Each day of violation and each violation of a particular section of this ordinance shall constitute separate offenses. Nothing herein contained shall prevent the City of Laredo from taking such other lawful action as is necessary to prevent or remedy any violation. Section 2. SEVERABILITY. The City Council, hereby declares that it would have passed each and every word, phrase, sentence, section, and subsection hereof, regardless of the validity of any other word, phrase, sentence, section or subsection hereof, and if any word, phrase, sentence, section or subsection hereof should be declared invalid, in whole or in part, such invalidity, if any shall not affect the remaining provisions of this ordinance. Section 3. PUBLICATION. That this ordinance shall be published one time in a local newspaper, pursuant to the City Charter 2.09 (D). Section 4. EFFECTIVE DATE. That this ordinance shall take effect and be in force on January 10, 2015 April 30, 2015. PASSED BY THE CITY JEUNCIL AND APPROVED BY THE MAYOR ON THIS THEc9-ndOAYOF n9=-- 2014.. MAYOR 383
APPROVED AS TO FORM: 384
TAB E
t~' ~ ATTORNEY GENERAL OF TEXAS GREG ABBOTT August 29, 2014 The Honorable Dan Flynn Chair, Select Committee on Transparency in State Agency Operations Texas House of Representatives Post Office Box 2910 Austin, Texas 78768 OpinionNo. GA-1078 Re: Whether section 361.0961 of the Texas Health and Safety Code prohibits municipalities from adopting ordinances that ban plastic bags (RQ-1189-GA) Dear Representative Flynn: You ask whether section 361.0961 of the Health and Safety Code prohibits municipalities from "enact[ing] bans on plastic bags and adopt[ing] fees on replacement bags." 1 You point to nine Texas cities that have adopted such ordinances in recent years and question whether the ordinances are legal in light of section 361.0961. Request Letter at 1. Each of the nine ordinances differ to some extent in the specific requirements and prohibitions they impose and the types of businesses to which they apply. 2 Questions regarding construction of specific city ordinances are outside the purview of an attorney general opinion. Tex. Att'y Gen. Op. No. GA-0648 (2008) at 6-7. This office will, however, address the legal question of whether a certain type of ordinance conflicts with state law. Tex. Att'y Gen. Op. No. GA-0433 (2006) at 1. All the ordinances you cite prohibit businesses from providing single-use plastic bags to customers. Thus, while this opinion should not be read to construe the specific te1ms of a particular municipal ordinance, we can advise you about the general question whether state law prohibits a municipality from prohibiting businesses from providing single-use plastic bags to customers. The cities that have adopted these ordinances include both home-rule and general-law cities. Neither a home-rule city nor a general-law city may adopt an ordinance that is inconsistent with the Texas Constitutlon or Texas statutes. TEX. CONST. art XI, 5; see TEX. Loe. Gov'T CODE ANN. 51.012,.032 (West 2008) (authorizing general-law cities to adopt ordinances not 1 Letter rrom Hon. Dan Flynn, House Select Comm. on Transparency in State Agency Operations, to Hon. Greg Abbott, Tex. Att'y Gen. at l (Feb. 27, 2014), http://www.texasattomeygeneral.gov/opin ("Request Letter"). 2 See AUSTIN, TEX., ORDINANCES tit. 15, ch. 15-6, att. 7 (2012); BROWNSVILLE, TEX., ORDINANCES pt. II, subpt. A, ch. 46, art.,!i, 46-47-46-51 (Sept. 20, 2010); FORT STOCKTON, TEX., ORDINANCES art. I, 12-8---12-1 l (Aug. 23, 201 l); FREER, TEX., ORDINANCES 2012-05, 1-3 (Dec. 10, 2012); KERMIT. TEX., ORDIN.l\NCES!3-05, 98-01-98.10 (2013); LAGUNA VISTA, TEX., ORDINANCES 2012-23 (Sept. 11, 2012); LAREDO, Ti:x.. ORDINANCES pt. II, ch. 33, art. VIII, 33-501-33-507 (Aug. 19, 2013); SO. PADRE ISLAND, TEX., ORDINANCES 10-38, 12-30- 12-30.3 (Jan. 19, 201 l); SUNSET VALLEY, TEX., ORDINANCES 93.60-93.63 (Feb. 19, 2013).
The Honorable Dan Flynn - Page 2 (GA-1078) inconsistent with state law). '"(A] general law and a city ordinance will not be held repugnant to each other if any other reasonable construction leaving both in effect can be reached.'" Dallas Merch. 's & Concessionaire's Ass 'n v. City of Dallas, 852 S.W.2d 489, 491 (Tex. 1993) (citation omitted). The statute about which you ask is found in chapter 361 of the Health and Safety Code, which is titled the "Solid Waste Disposal Act" ("the Act"). TEX. HEALTH & SAFETY CODE ANN. 361.001(West2010). Section 361.0961 of the Act states, in relevant part: A local government or other political subdivision may not adopt an ordinance, rule, or regulation to: ( 1) prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law; [or] (3) assess a fee or deposit on the sale or use of a container or package. Id. 361.0961(a)(l), (3). Answering your question requires analyzing whether a single-use plastic bag is a "container or package" within the meaning of section 361.0961, and if so, whether the municipal ordinances prohibit single-use plastic bags for "solid waste management purposes." The Act does not define "container or package." 3 Undefined terms in a statute are given their ordinary meaning unless a different or more precise definition is apparent from the term's use in the statute's context. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011 ). The common understanding of the word "container" is a "receptacle for holding goods." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 269 (11th ed. 2003). Also relevant to the question is the common understanding of "bag," which is a "flexible container that may be closed for holding, storing, or carrying something." Id. at 91 (emphasis added). Based on the common understanding of these terms, a court is likely to conclude that a single-use plastic bag is a container within the meaning of section 361.0961. Briefing submitted to this office argues that the phrase "container or package" as used in section 361.0961 is limited to only those containers or packages that are intended to store solid 3 The terms "container" and "package" are defined in unrelated contexts in other statutes. and some expressly include a "bag" or "plastic bags" in the definition, while others do not. See, e.g., TEX. AGRIC. CODE ANN. 141.001(5) (West 2004) (defining "container" to include, among other things, a bag or package in which commercial feed is packed); TEX. HEAL TH & SAFETY CODE ANN. 431.002(27) (West 20 I 0) (defining "package" as "any container or wrapping in which a consumer commodity is enclosed..."). While definitions of words from unrelated statutes may sometimes be informative, these incongruities provide little guidance with regard to how the terms should be construed in chapter ~61.
The Honorable Dan Flynn - Page 3 (GA-1078) waste. 4 While the Legislature limited the application of the statute to ordinances, rules, or regulations adopted for solid waste management purposes, the plain language of section 361.0961 does not limit the types of containers or packages to which it applies. Furthermore, during the Legislature's debate on section 361.0961, the bili's sponsor explained that the bill was intended to prohibit municipalities from adopting rules about Styrofoam containers, suggesting that the language could apply to containers beyond those used to store solid waste. Debate on Tex. S.B. 963 on the Floor of the Senate, 73d Leg., R.S. (May 24, 1993) (digital recording available from Texas State Archives Comm'n); see also House Research Org., Bill Analysis, Tex. S.B. 963, 73d Leg., R.S. (1993) at 5 (explaining that opponents argue the bill would "prohibit a city from banning wasteful packaging or Styrofoam cups or imposing a bottle return fee"). While legislative history is often unreliable and is not determinative of our interpretation of section 361.0961, these relatively clear statements of legislative intent provide added support for the text-based construction of section 361.0961 adopted here. Construing the scope of "container'' narrowly as suggested by some briefers would both depart from the statute's plain text and ignore the available legislative history. Because a single-use plastic bag is likely a container under section 361.0961, it is necessary to analyze the purposes for which the municipal ordinances prohibit single-use plastic bags. In order for an ordinance to be prohibited by section 361.0961, the city must have adopted it "for solid waste management purposes." TEX. HEALTH & SAFETY CODE ANN. 361.096l(a)(l) (West 2010). "[S)olid waste" is defined in chapter 361 to include, among other items, "rubbish, [or] refuse." Id. 361.003(35). "Rubbish" is in turn defined as "nonputrescible solid waste... that consists of," among other items, "plastics." Id. 361.003(31). "Management" is defined as "the systematic control of the activities of generation, source separation, collection, handling, storage, transportation, processing, treatment, recovery, or disposal of solid waste." Id. 361.003(18). It is conceivable that a city adopting an ordinance that prohibited single-use plastic bags would do so to control the generation of solid waste, which single-use plastic bags will most likely become. Other purposes may also exist for such an ordinance, however. For example, two of the ordinances you inquire about state that their purpose is the protection of animal life. See FREER, TEX., ORDINANCES 2012-05 (Dec. 10, 2012) ("there is a strong possibility that plastic bags... can end up in the ranch land,... and create,.. potential hazard to wildlife"); LAGUNA VISTA, TEX., ORDINANCES 2012-23 (Sept. 11, 2012) ("there is a strong possibility that plastic bags... create... potential hazard to marine life"). Detennining whether a city adopted an ordinance for solid waste management purposes will require a factual inquiry into the intent of the governmental body. Such factual inquiries are beyond the scope of an attorney general opinion. Tex. Att'y Gen. Op. No. GA-0090 (2003) at 5 (determining intent is beyond the scope of an attorney general opinion). Thus, we cannot determine whether any specific ordinance is prohibited by section 361.0961 but can advise only 4 See Brief from Karen Kennard, City Attorney, City of Austin at 4 (Mar. 26, 2014); Brief from H. Abell, et. al. at 2 (Mar. 26, 2014) (briefs on file with Op. Comm.).
The Honorable Dan Flynn - Page 4 (GA-1078) that section 361.0961 would likely prohibit a city ordinance adopted for solid waste management purposes that prohibited single-use plastic bags. You also ask about the legality of a municipal ordinance that assesses "fees on replacement bags" under section 361.0961. Request Letter at l. The plain language of subsection 361.096l(a)(3) prohibits a political subdivision from adopting an ordinance that "assess[es] a fee or deposit on the sale or use of a container or package." TEX. HEAL TH & SAFETY CODE ANN. 361.096l(a)(3) (West 2010). Unlike the language in subsection 361.0961(a)(l), the prohibition on fees or deposits is not limited to instances when the assessment is for solid waste management purposes. Because a court is likely to conclude that a bag is a container in the context of section 361.0961, a court would also likely conclude that a city is prohibited from assessing a fee on the sale or use of a replacement bag. 5 ---------.. - -~- - 5 Section 361.0961 applies only to "a local government or other political subdivision" and therefore does not impact the authority of a private business to, at its own choosing, charge a fee for the sale of a replacement bag. TEX. HEALTH & SAFETY CODE ANN. 361.096 I (a) (West 2010).
The Honorable Dan Flynn - Page 5 (GA-1078) SUMMARY A court would likely conclude that a city ordinance prohibiting or restricting single-use plastic bags is prohibited by subsection 361.0961(a)(l) of the Health and Safety Code if the city adopted the ordinance for solid waste management purposes. Whether a specific city's single-use plastic bag ordinance was adopted for such purposes will require a factual inquiry that is beyond the scope of an attomey general opinion. A court would likely conclude that section 361.096l(a)(3) prohibits a city from adopting an ordinance that assesses a fee on the sale or use of a single-use plastic bag. GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General JAMES D. BLACKLOCK Deputy Attorney General for Legal Counsel VIRGINIA K. HOELSCHER Chair, Opinion Committee Virginia K. Hoelscher Assistant Attorney General, Opinion Committee
TAB F
HOUSE a RESEARCH WORGANIZATION bill analysis 5/24/93 SB 963 Sims (Saunders) SUBJECT: Strategic plan for solid waste management and reduction COMMITTEE: Environmental Regulation - favorable, with amendment VOTE: 6 ayes - Chisum, Saunders, Gray, Hilderbran, Kuempel, Talton 0 nays 5 absent - Blackwood, Eckels, Jackson, Lewis, Oakley SENATE VOTE: On final passage, May 11 - voice vote (Rosson recorded voting nay) WITNESSES: DIGEST: None SB 963, as amended, would amend the Health and Safety Code to provide for a strategic plan for the reduction of solid waste, a solid waste education program, and an Office of Waste Exchange. The bill would fund local government studies of rates that reflect the actual cost of services and restrict the authority of local governments to regulate solid waste. Restrictions on local governments. A local government or political subdivision could not adopt an ordinance, rule or regulation to prohibit or restrict the sale or use of a product, container or package for solid waste management purposes in a manner that was not authorized by state law. A local government could not prohibit the processing of solid waste by a solid waste facility permitted by the state for that purpose unless that facility was owned by the local government. A local government also could not assess a fee or deposit on the sale or use of a container, product or package. These restrictions could not prevent compliance with state or federal laws, or limit the authority of a local government to enact zoning ordinances. Rules of general applicability. The Texas Natural Resource Conservation Commission (TNRCC) would be required to adopt rules to adopt, repeal or amend any statement of general applicability that would interpret or prescribe law or policy, or describe the procedure or practice requirements of the agency. - 107-387
\ SB 963 House Research Organization page 2 Local government studies. TNRCC could use solid waste fee revenue for demonstration projects and studies to help local governments to convert to accounting systems and rates that would reflect the full costs of waste management services and would be proportionate to the amount of waste generated. Solid waste fee revenue could also be used to mitigate the economic and environmental impacts of lead acid battery recycling activities of local governments. Strategic plan for the reduction of solid waste. TNRCC would be required to develop a strategic plan for the reduction of solid waste that would describe a comprehensive solid waste management strategy for the state. In developing the plan, TNRCC would hold public hearings in different regions of the state and consult with local governments, appropriate regional and state agencies, businesses, citizen groups and private waste management firms. The plan would be published in the Texas Register. Comprehensive Municipal Solid Waste Strategic Plan. The comprehensive municipal solid waste management strategic plan would identify and quantify components of the municipal solid waste stream. The plan would also study existing state capacity and management of solid waste, identify the components of landfills that are highest in volume and estimate state generation of waste as well as waste accepted from other states under existing contracts. The plan would include an estimation of municipal solid waste expected to be recycled, transported to another state, imported into Texas, disposed of, or incinerated in the state. The plan would set a goal for overall reduction of the municipal waste stream, include a program of public education, and ensure that source reduction, reuse, recycling, composting and resource recovery were all addressed. Planning regions and local governments, after adopting regional solid waste management plans, would be required to report in even years to the - 108-388
/ SB 963 House Research Organization page 3 commission on the progress of solid waste programs and recycling activities. The commission could not require a planning region or local government to submit infonnation previously submitted to the department. A regional or local solid waste management program would provide an assessment of the need for new waste disposal capacity, encourage efforts between local governments and private industry, include a public education program and provide for waste reduction. Waste transfer station permit exemption. The bill would require the TNRCC to exempt from permit requirements certain waste transfer stations (used to transfer municipal solid waste to a disposal facility) in cities with a population under 50,000 and counties with populations under 85,000. An exempted facility would be required to comply with TNRCC design and operational requirements. Exempted from permit requirements as a waste transfer station would be a facility that transferred 125 tons a day or less, or a materials recovery facility that recycled 10 percent of its incoming non-segregated waste, as long as the remaining waste was transferred to a landfill within 50 miles of the facility. To qualify for an exemption, an applicant would be required to hold a public meeting about facility siting in the city or county where the facility would be located. Education program. TNRCC would develop a public awareness program to encourage proper disposal, recycling, waste source reduction, composting and reuse of solid waste. The program would include a media campaign, and a curriqdum developed with the commissioner of education to use in the public schools to promote waste reduction and recycling. The commission could also consult and sponsor workshops with the public, businesses and manufacturers on source reduction and recycling. The office of waste exchange. The Office of Waste Exchange would be established as an office of TNRCC to encourage recycling, composting and - 109-389
\ SB 963 House Research Organization page 4 reuse of materials. The office would assist with the selling and purchasing of recyclable materials between the public and private sectors, and could act as a broker for exchanges of the materials. The office would be required to adopt a plan to provide information to those interested in waste exchange and annually report to the legislature The bill would take effect September 1, 1993. SUPPORTERS SAY: Strategic plan for the reduction of solid waste. SB 963 would streamline and coordinate plans to minimize waste throughout the state. The bill would ensure that Texas has adequate capacity to manage the state's garbage over the next decade and would help to avoid an impending disposal crisis. Currently Texas generates millions of tons yearly of municipal waste. Most of this waste is deposited in landfills. Estimates show that current landfill capacity can meet Texas' needs for only approximately 19 more years. Landfills across the state are filling up, and building new landfills is expensive and unpopular. New federal Environmental Protection Agency requirements require more stringent groundwater protection, and the cost of compliance makes it difficult for financially strapped local governments to keep landfills open. The only workable solution is for the state to develop a plan for statewide reduction of the municipal solid waste stream. Public education and waste exchange programs would help promote waste reduction and recycling. SB 963 would help the state develop strategies for municipal solid waste stream reduction and help educate the public about how to achieve waste minimization. Restrictions on local governments. The bill is not overly restrictive of local governments. It would be impossible for companies to deal with a patchwork of regulations, different in every city in Texas, regarding solid waste. SB 963 would help avoid this patchwork approach to waste management. which could hurt the flow of goods and services in the state. It is better for the state to use the broad-based comprehensive approach - 110-390
f ' SB 963 House Research Organization page 5 mandated by SB 963 to provide adequate capacity to manage state wastes. SB 963 would still allow local governments to prohibit or restrict processing of solid waste by a facility owned by the local government itself. Office of waste exchange. The office of waste exchange would help the state identify buyers and sellers of recyclable materials and encourage waste minimization. In the long run, the office would pay for itself helping to reduce the solid waste stream. Local government studies. Cities would benefit from studies of waste management techniques that allow a city to charge a certain rate per volume of garbage and make those who generate more waste pay more for city services. Studies have shown this is an excellent way to effect source reduction, as it allows residents to see how much it costs to dispose of their waste and gives a price incentive to reduce the amount of waste they generate -OPPONENTS SAY: NOTES: Restrictions on local governments. SB 963 would overly restrict the authority of local governments to regulate solid waste. Cities need local flexibility to deal with the increasing and expensive problem of excess solid waste and landfills filled to capacity. SB 963 would, for example, prohibit a city from banning wasteful packaging or styrofoam cups or imposing a bottle return fee. The committee amendment provides that a materials recovery facility that recycled 10 percent of its incoming non-segregated waste, as long as the remaining waste was transferred to a landfill.within 50 miles of the facility, could be exempted from certain pennit requirements as a waste transfer station. The Senate version of SB 963 provides that the remaining waste must be transferred to a Class I facility. - 111-391
TAB G
BJLL ANALYSIS S.B. No. 963 By: Sims Committee on Environmental Regulation House Sponsor: Saunders BACKGROUND INFORMATION Currently the State of Texas generates 18 to 19 million tons of municipal waste per year. Most of this waste is disposed of in landfills. Due to the recently adopted federal Subtitle D regulations, more landfills will close and less disposal capacity will be available for municipal solid waste in the future. Therefore, the State must develop a plan for the reduction of the municipal solid waste stream. State law has encouraged recycling, reuse, composting, and other methods of reducing from the waste stream. PURPOSE To develop strategies for the reduction of the municipal solid waste stream. RULEMAKING AUTHORITY In Section 7, the commission shall adopt rules as provided by the Administrative Procedure and Texas Register Act when a change in agency policy, procedure or practice has occurred. This is necessary to effectively implement this Section of this Act In Section 9, the commission shall adopt rules to authorize permitting-by-rule for the operation of municipal solid waste transfer stations. This is necessary to effectively implement this Section of this Act SECTION BY SECTION ANALYSIS SECTION 1. Statement of findings and purposes of bill SECTION 2. Amends Section 361.014, Health and Safety Code, to broaden the use of solid waste fee revenue to include demonstration projects and studies to assist local governments with the setting of rates which reflect the full cost of providing waste management services. SECTION 3. Amends Section 361.020, Health and Safety Code, providing for the development of a strategic state municipal solid waste plan. SECTION 4. Adds Section 261.0201, Health and Safety Code, to require the comprehensive municipal solid waste management strategic plan to : 1) establish a comprehensive municipal solid waste management strategy for the state; 2) identify the components of landfills which are highest in volume; 3) estimate the state's remaining capacity to manage municipal waste through existing treatment or disposal facilities; and 4) establish goals for the reduction of municipal waste stream. SECTION 5. Adds Section 361.0202, Health and Safety Code, to provide for education programs which include public awareness through media campaigns and school curriculums. Also provides for consultation and advice to public and private organizations regarding source reduction and recycling. 1 {
S.B. No. 963 By: Sims House Sponsor: Saunders SECTION 6. Amendk Section 361.0219, Health and Safety Code, to create the Office Of Waste Exchange to assist with the selling and purchasing of recycial:ile materials between the public and private sectors. SECTION 7. Amends Section 361.024, Health arid Safety Code, by adding Subsection (e) to provide for the adoption of rules as provided by the Administrative Procedure and Texas Register Act SECTION 8. Amends Section 361.034(a), Health and Safefy Code, to reqi.rire the State to submit stattis reports ii.long with recommendations to the legislature and governor regarding progress made in implementing the state's municipai solid waste niariagemerit plari. SECTION 9. Amends Section 361.111, Health and Safety Code, to allow i:he commission to set permit-by-r\ile requirements for municipal solid waste transfer stations. SECTION 10. Amends Section 363.003, Health and Safety Code, to broaden the findings and purpose of the Comprehensive Municipal Solid Waste Management Resource Recovery and Conservation Act to encourage local governments to contract with waste management firms to assist in meeting municipal solid waste goals. SECTION 11. Adds Section 361.096i, Health and Safety Code; to restrict local governments or other political _subdivisions from adopting ordiilarices or rules regarding the use or sale of products for solid waste management purposes. SECTION 12. Amends Section 363.062, Health and Safety Code, to call for reports to be made in even"nui.hbered years regarding the progress of regional solid waste management plans. SECTION 13. Amends Section 363.063, Health and Safety Code, to call for reports to be made in even-numbered years regarding the progress of local solid waste management plans. SECTION 14. Amends Section 363.064, Health and Safety Code, to expand components of regional and municipal solid waste plans to include assessment of the need for new waste disposal activity and public education programs. SECTION 15. Provides for adoption of the plan to disseminate information on waste exchange programs by the Office of Waste Exchange not later than September 1, 1994. SECTION 16. Provides that the provisions of the Act not affect the transfer of powers, duties, rights and obligations made in Chapter 3 during th'e 1st Called Session of the 72nd Legislature. SECTION 17. Provides that changes in law made by Section 361.024 apply to rules in effect on or adopted on or after the effective date of this Act SECTION 18. Provides for the effective date of this Act to be September 1, 1993. SECTION 19. Emergency clause. 2
S.B. No. 963 By: Sims House Sponsor: Saunders SUMMARY OF COMMITTEE ACTION Pursuant to an announcement made on the House Floor on May 13, 1993, the Committee on Environmental Regulation met in a formal meeting on the same day. The Chair laid out S.B. 963. Rep. Kuempel offered Committee Amendment # 1 to S.B. 963. The amendment was adopted without objection. Rep. Hilderbran moved that S.B. 963 as amended be adopted and reported favorably form committee, and sent to the Calendars Committee and the full House with the recommendation that it do pass. The motion passed by the following vote: Ayes: six (6), Nays: none (0), PNV: none (0), Absent: five (5). 3
TAB H
465
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467
468
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481
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541
TAB I
542
543
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545
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558
559
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561
562
563
564
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566
567
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570
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582