City of Eagle Pass, TX Plastic Bag Ban Ordinance in jeopardy after Laredo’s Ban struck down by Texas Fourth Court of Appeals

By: Miguel Munoz, Eagle Pass Business Journal, Inc., Copyright 2016

The City of Eagle Pass, Texas Plastic Bag Ban Ordinance passed by the City Council under the leadership of Mayor Ramsey English Cantu on December 1 , 2015, is in jeopardy due to the City of Laredo, Texas similar plastic bag ban ordinance being struck down by the Texas Fourth Court of Appeals in San Antonio, Texas, on a split 2 to 1 decision.

The Texas Fourth Court of Appeals ruled that the City of Laredo’s Plastic Bag Ordinance is illegal because it is preempted by Texas law regulating solid waste disposal under the Health and Safety Code.  The Laredo Merchants Association challenged the City of Laredo plastic bag ban ordinance in state court, prevailing at the Court of Appeals level.

The Texas Fourth Court of Appeals held that the City of Laredo’s plastic bag ban ordinance did exactly what the Texas Health and Safety Code intends to prevent from occurring-the regulation of plastic bags for purposes of solid waste management.

The Eagle Pass City Council actually withdrew it previous proposed City Ordinance on Plastic Bag Ban at its December 1, 2015 meeting, which had already been read twice before final passage, and decided to approve a new Plastic Bag Ban Ordinance modeled after the City of Laredo’s ordinance.

The City of Eagle Pass Plastic Bag Ban Ordinance met opposition from H.E.B., Walmart, Eagle Grocery and Market, and other retail businesses before its final approval.  Eagle Pass retail businesses are currently displaying signs of the City of Eagle Pass’ new Plastic Bag Ban Ordinance is going to take effect effective January 1, 2017 to prepare and notify local customers of the new City law.

The Eagle Pass City Council approved the new revised Plastic Bag Ordinance at the recommendation of City Attorney Langley & Banack in order to withstand a legal challenge from any retail business or citizen.  The new revised Plastic Bag Ban Ordinance followed the Cities of Laredo and Brownsville in creating a Health Department, the hiring of a Health Inspector, and the prohibition of the use of plastic bags by local retail businesses.  Eagle Pass created a Health Department and recently hired Jessica Ortiz as its new Health Inspector.

The City of Eagle Pass even formed a Plastic Bag Ban Ordinance Committee composed of City employees, chaired by Vanessa Herrera, and visited the Cities of Laredo and Brownsville to learn how they approved their plastic bag ban ordinances and were implementing the new plastic bag bans.

Former City of Eagle Pass City Attorney and Municipal law expert, Ricardo E. Calderon, stated that the Texas Fourth Court of Appeals decision against the City of Laredo definitely jeopardizes the legality of the current City of Eagle Pass Plastic Bag Ban Ordinance, which is scheduled to take effect on January 1, 2017.  Calderon stated that the City of Eagle Pass’ Plastic Bag Ordinance is modeled and almost duplicates the Cities of Laredo and Brownsville ordinances, which the Fourth Court of Appeals has struck down Laredo’s ordinance.

Calderon stated that a local or out of town retail business and/or retail business association or taxpayer may decide to challenge the legality of the City of Eagle Pass’ Plastic Bag Ban Ordinance as violating Texas’ Health and Safety Code before it takes effect on January 1, 2017, similarly to the arguments made against the City of Laredo and successfully prevailed.  Calderon noted that a Petition for Declaratory Judgment in state court may be a legal avenue for anyone to challenge the City of Eagle Pass’ Plastic Bag Ban Ordinance.  Calderon noted that the Eagle Pass City Council may also voluntarily withdraw, amend, and/or rescind its Plastic Bag Ban Ordinance before it takes effect on January 1, 2017, as a result of the newly decided Texas Fourth Court of Appeals decision.

Calderon opined that the City of Laredo decision decided by the Texas Fourth Court of Appeals highlights a key conflict issue regarding a municipality’s authority and power to regulate its community as it sees fit versus the State of Texas’ authority to regulate the health and safety of its citizens, particularly concerning solid waste disposal matters.

As of press time, it is unknown if the City of Laredo will appeal the Texas Fourth Court of Appeals decision to the Texas Supreme Court.  Likewise, it is unknown whether any Eagle Pass retail business or taxpayer will challenge the legality of the City of Eagle Pass Plastic Bag Ban Ordinance scheduled to take effect on January 1, 2017.