FLORIDA: Facing legal hurdle, Palm Beach will repeal ban on plastic bags, polystyrene containers
Facing a major legal setback, the town votes to end its ban on single-use plastic bags and polystyrene containers months before the prohibition was to take effect.
A disappointed Town Council voted 5-0 Wednesday to kill its ban on plastic bags and polystyrene containers after learning an appellate court had upheld the Florida Legislature’s pre-emption against local bans of plastic bags and polystyrene containers.
The decision was a major blow to Palm Beach and other municipalities looking to enact eco-friendly regulations against non-biodegradable waste.
The council and Mayor Gail Coniglio vowed to fight on by teaming with other coastal municipalities and environmental groups to lobby state lawmakers to repeal the preemption.
“The fight is not over,” Councilman Lew Crampton said. “The battle continues. [We’ll] unite with whom we can unite and go forward to victory.”
August 25, 2019
Coniglio said she will reach out to the Palm Beach County League of Cities, other coastal communities and environmental groups for support, and will write a letter appealing to legislative leaders and Gov. Ron DeSantis to drop the preemption.
Palm Beach became the first municipality in the county to say goodbye to single-use plastic bags and polystyrene containers when it approved the ban in June. It was set to take effect in December so restaurants and retail establishments would have time to use up their inventories.
Coniglio and council members said the single-use bags clog landfills or end up in the ocean, where they never fully break down and are consumed by marine life, including fish that are part of the human food chain.
Town Attorney John Randolph told the council before Wednesday’s vote that the 3rd District Court of Appeal on Wednesday tossed out the city of Coral Gables’ 2016 ban on the use of containers made of polystyrene, widely branded as Styrofoam.
The three-judge appellate panel’s opinion reversed and remanded a Miami-Dade Circuit Court judgment favoring Coral Gables.
“As of today we have a decision from the 3rd District Court of Appeal that says the Florida statute is very clear and takes precedence,” Randolph said.
In a July 15 letter to Coniglio and the council, the Florida Retail Federation and Florida Restaurant & Lodging Association warned that regulation of plastic bags and polystyrene is “expressly pre-empted” by state statutes.
Randolph warned the council that, given the court’s ruling, it had 60 days “to repeal this unlawful ordinance or be responsible for attorneys’ fees and damages in the event the ordinance is successfully challenged in court.”
Wednesday’s vote was to immediately signal the council’s intent to cancel the ban. Randolph recommended passing an emergency ordinance -- meaning it can be adopted on a single vote instead of two votes -- formally repealing the ban ordinance next month.
Coniglio and council members have criticized the legislature for steadily eroding “home rule,” which is the ability of local governments to adopt regulations that fit their needs and circumstances.
“I think we should carry this forward as a home rule item,” Coniglio said.
Florida is a diverse state, and coastal communities face different challenges than inland communities, Councilwoman Margaret Zeidman said.
“We are surrounded by a marine environment,” Zeidman said. “People in the middle of the state are not, so they feel one way about this and we feel another; ... the cookie-cutter approach does not work with plastics.”
The Florida Retail Federation is a statewide trade association representing retailers. The Florida Restaurant & Lodging Association represents the hospitality industry.
“We are up against some heavy hitters here in terms of the corporate world and the petroleum industry,” Zeidman said.
But Zeidman said that, even though the ban is being repealed, people should still replace plastic bags with reusable tote bags.
“This does not relieve each individual in this community of their personal obligation to do what they can,” she said. “You should be embarrassed if you walk out of Publix with a plastic bag.”
In a separate ordinance, the council in July also banned single-use plastic straws and stirrers. That prohibition takes effect Dec. 12.
Town Manager Kirk Blouin said that ban will take effect because Gov. DeSantis this year vetoed a bill that would have blocked local governments from banning straws.