Plastic bag preemption conflicts between state and local governments

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Ballotpedia's coverage of state and local preemption conflicts

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Last updated: March 14, 2022

Ballotpedia covers preemption conflicts between state and local governments in several policy areas. Preemption occurs when law at a higher level of government is used to overrule authority at a lower level. This page summarizes preemption conflicts over plastic bag regulations. To learn more about other preemption conflicts, click here.

In 2007, San Francisco became the first major U.S. city to prohibit retailers from giving customers plastic bags. The ban applied to grocery stores and pharmacies and was expanded to retail stores in 2012. San Francisco's plastic bag ban preceded similar bans in cities across the country.

Advocates of plastic bag regulations have argued that bans reduce litter and water pollution, reduce the number of non-accepted plastic bags that enter recycling programs, and save retailers money. Opponents say that plastic bags have a smaller climate impact than paper and cotton bags, that plastic bags are recyclable and can be reused around the home, and that bag bans add a financial burden for low-income families that would be required to buy reusable bags.

The American City County Exchange and the Plastics Industry Association-affiliated American Progressive Bag Alliance are among the national groups that oppose bag bans. Groups such as the Natural Resources Defense Council and the Sierra Club support bag bans.

Email editor@ballotpedia.org to notify us of updates or new plastic bag preemption stories.

Plastic bag preemption conflicts overview
Year	State	Summary
2020	Ohio	A state law was passed prohibiting local governments from regulating the use of auxiliary containers, such as plastic bags, for one year.
2020	Pennsylvania	An amendment to a budget bill prohibited local governments from regulating the use of auxiliary containers until July 1, 2021, or six months after the end of the state's pandemic emergency order—whichever was later.
2020	South Dakota	A state law was passed prohibiting local governments from regulating the use of auxiliary containers, such as plastic bags.
2019	Florida	A Florida court upheld the constitutionality of sections of state law that prohibit local governments from regulating plastic bags and other packaging, causing cities and towns with such ordinances to repeal or delay their bans.
2019	Tennessee	A bill was passed prohibiting local governments from regulating the use of auxiliary containers, such as plastic bags.
2019	Oklahoma	A law was passed prohibiting local governments from restricting, taxing, banning, or regulating the use, disposition, or sale of auxiliary containers, such as plastic bags.
2019	North Dakota	A law was passed prohibiting local governments from regulating, restricting, or taxing the use of auxiliary containers, such as plastic bags.
2018	Texas	The Texas Supreme Court struck down a Laredo city plastic bag ban, finding it in violation of a state prohibition of local regulations on solid waste management.
2017	Arizona	The state Attorney General ruled that a five-cent bag fee enacted by the Bisbee City Council violated a state law prohibiting local regulations on retail bag use.
2017	Minnesota	A state law was passed prohibiting cities from enacting bag regulations, including a ban on plastic bags and a five-cent tax on paper bags that had been previously approved by the Minneapolis City Council.
2017	New York	A law was passed delaying the implementation of a New York City bag tax.
2017	Pennsylvania	The governor vetoed a bill that would have preempted local restrictions on plastic bag use by retailers.
2016	California	California voters approved a statewide plastic bag ban, which included a clause allowing any public agency with preexisting plastic bag regulations to continue enforcing those regulations.
2016	Michigan	A state law was passed prohibiting local bag regulations, including a ten-cent bag fee that had been approved by Washtenaw County officials.

2020

Ohio: Gov. DeWine, state legislators preempt plastic bag bans for a year

On October 13, 2020, Gov. Mike DeWine (R) signed HB 242, which preempted "the authority to use an auxiliary container, to temporarily prohibit the imposition of a tax or fee on those containers, and to apply existing anti-littering law to those containers." DeWine said he signed the law as a measure to prevent the spread of coronavirus. The preemption was set to last for one year. HB 242 passed by a 23-9 vote in the Ohio State Senate and by a 58-35 vote in the Ohio House of Representatives. At the time of the bill's passage, plastic bag bans existed in localities including Cincinnati, Cuyahoga County, Orange Village, and the Columbus suburb of Bexley.

Pennsylvania: Gov. Wolf, state legislators temporarily preempt plastic bag bans in budget bill

On May 29, 2020, Gov. Tom Wolf (D) signed HB 1083, a budget bill that included an amendment preempting local plastic bag bans. The amendment said, "the General Assembly or a local governmental body or agency may not enact or enforce a law, rule, regulation or ordinance imposing a tax on or relating to the use, disposition, sale, prohibition or restriction of single-use plastics, auxiliary containers, wrappings or polystyrene containers" until July 1, 2021, or six months after Wolf's March 6, 2020, state of emergency order was lifted—whichever was later. Wolf issued the order in response to the coronavirus pandemic. HB 1083 passed in the House 196-6 and in the Senate 37-13. In March 2021, Philadelphia and several other Pennsylvania municipalities sued the state, saying the plastic bag ban preemption was unconstitutional. The state legislature ended the pandemic emergency order in early June 2021, and the plastic bag ban preemption expired December 8, 2021.

South Dakota: Gov. Noem, state legislators preempt plastic bag bans

On February 27, 2020, Gov. Kristi Noem (R) signed SB 54, which preempted "all laws by any other political subdivision of the state relating to auxiliary containers, beverage containers, garbage bags, straws used for beverage consumption, or plastic packaging materials." SB 54 passed by a 22-12 vote in the South Dakota State Senate and by a 46-24 vote in the South Dakota House of Representatives. At the time of the bill's passage, no municipalities in South Dakota banned plastic bags.

2019

Florida: Third District Court of Appeal rules Florida preemption laws constitutional

In August 2019, the Florida Third District Court of Appeal upheld the constitutionality of sections of state law that prohibit local governments from regulating plastic bags and other packaging.

The decision reversed an earlier ruling by the Eleventh Circuit Court that upheld a municipal polystyrene ban. The city of Coral Gables banned the retail use of expanded polystyrene (plastic foam) in February 2016. In July 2016, the Florida Retail Federation (FRF) filed a lawsuit against the city, and Judge Jorge Cueto of the Eleventh Circuit Court upheld the city's polystyrene ban in February 2017.

On August 14, 2019, the Third District Court of Appeal reversed the ruling, stating, "Because the trial court erred in finding the three statutes [Florida Statutes sections 403.708(9), 403.7033, and 500.90] unconstitutional and concluding that the City’s Polystyrene Ordinance was not preempted, we reverse." After the Third District Court denied the city's motion to certify the question to the Florida Supreme Court, Coral Gables invoked the supreme court's discretionary jurisdiction. The Florida Supreme Court declined to hear the case on February 12, 2020.

FRF President and CEO R. Scott Shalley stated after the ruling, "This decision helps ensure Florida remains a business-friendly state by avoiding a patchwork of regulations by the more than 400 local governments." The city of Coral Gables issued the following statement: "The City remains steadfast in its commitment to protecting our environment, which includes eliminating the use of harmful items like polystyrene and plastic bags. The City also remains wholly committed to defending Home Rule and local control."

After Coral Gables lost its case, other local governments in Florida decided to repeal or delay their own bans.

• A Miami Beach city attorney said in August that the city was going to delay a ban on single-use plastic bags.

• The Surfside Town Commission, which passed a ban on plastic bags and other single-use plastics in June 2019, began the process to repeal its ban in August 2019.

• The Palm Beach Town Council adopted a ban on plastic bags and polystyrene containers in June 2019 that was scheduled to take effect December 2019. The town rescinded the ban in August 2019.

• The Gainesville City Commission voted in July to uphold their plastic bag ban after receiving a letter from the Florida Retail Federation on July 15. After the Coral Gables ruling in August, the commission voted to repeal the ordinance.

• The Alachua County Commission repealed its ban on plastic bags and plastic foam containers on September 10, 2019.

Tennessee: Gov. Lee, state legislators preempt plastic bag bans

Gov. Bill Lee (R) signed House Bill 1021 on April 12, 2019. The bill prohibited local governments from regulating the use of auxiliary containers, such as plastic bags, and said that "this state is the exclusive regulator of food and drink sellers, vendors, vending machine operators, food establishments, and food service establishments in this state." There was no plastic bag ban in place in Tennessee at the time the bill was passed, although the cities of Memphis and Nashville had considered taxing the use of plastic bags.

The National Federation of Independent Business included the bill on a list of 2019 "Big Wins for Small Business" in Tennessee, stating, "The legislation establishes that state government has authority over any restrictions on auxiliary containers and food standards, making it clear they are not subject to local ordinance. The legislation will ensure employers in food retail and food service abide under one set of rules rather than by community patchwork."

Sen. Raumesh Akbari (D-Memphis) opposed the bill, saying, "Local government, they are elected just like we are, and they are best to represent the interest of the people in that specific geographical area." The Tennessee chapter of the Sierra Club stated, "Local communities know best how to handle their unique challenges with single-use plastics, and unless the state wants to enact a ban across Tennessee, the General Assembly should stay out of their way."

The bill passed the Tennessee House of Representatives 69-21 on March 25, 2019, and passed the Tennessee State Senate 23-7 on March 28, 2019.

Oklahoma: Gov. Stitt, state legislators preempt plastic bag bans

On April 23, 2019, Gov. Kevin Stitt (R) signed Senate Bill 1001, which stated that "no political subdivision shall restrict, tax, prohibit or regulate the use, disposition or sale of auxiliary containers," other than on county or city property. Before the bill was passed, the city of Norman was considering a fee on single-use plastic bags.

Stitt stated, "I signed Senate Bill 1001 in order to ensure there is consistency across the state for businesses and commerce, which will help in the efforts to recruit and retain companies and grow Oklahoma." Sen. James Leewright (R-Bristow), the bill's author in the Senate, stated, "We've already started to see some municipalities do some taxation of different plastics ... I think that's very regressive on raising food costs."

Sen. Mary Boren (D-Norman), who opposed the bill, said, "The phrase 'local control' gets used a lot by politicians, but once again, we've seen deep corporate pockets lobby for legislation that undercuts that local control." Mike Fina, executive director of the Oklahoma Municipal League, stated, "They need to not pre-empt cities and let us do what we do best, and that is handle these kinds of issues."

The bill passed the Oklahoma State Senate 35-9 on March 6, 2019, and passed the Oklahoma House of Representatives 51-41 on April 16, 2019.

North Dakota: Gov. Burgum, state legislators preempt plastic bag bans

Gov. Doug Burgum (R) signed House Bill 1200 on March 28, 2019. The bill prohibited political subdivisions from regulating, restricting, or taxing the use of auxiliary containers, including plastic bags. The bill was introduced by Rep. Dan Ruby (R-Minot), who said at a forum, "I do think that when you charge for plastic bags, which grocery stores are going to have to pass onto their customers, it impacts people. We’re already concerned about people not being able to afford food, and stealth taxes like that are just another way to make it more difficult for people to afford groceries and food."

One of the bill's opponents, Minot city council member Josh Wolsky, stated, "When a group of citizens brings a concern to their local government or their city council and the authority to address that concern is then pre-empted at the state level I think it sends a wrong message to citizens." Before the bill was passed, the city of Minot had considered levying a five-cent tax on plastic bags.

The bill passed the North Dakota House of Representatives 72-19 on February 19, 2019, and passed the North Dakota State Senate 31-14 on March 20, 2019.

2018

Texas: State Supreme Court rules against Laredo in bag ban case

On June 22, 2018, the Texas Supreme Court unanimously ruled against Laredo, concluding that the local ordinance conflicted with the state's Solid Waste Disposal Act. The court wrote, "The court of appeals correctly held that the Act preempts the City’s Ordinance." In a concurring opinion, Justice Eva Guzman wrote that the legislative branch, not the judiciary, had the authority to implement policies like the bag ban.

On August 17, 2016, Texas' Fourth District Court of Appeals struck down a plastic bag ban enacted by Laredo in 2014. The city's attorneys had argued that the ban was intended as a beautification effort rather than a waste disposal measure, but the court found that it violated a state prohibition on local regulations on solid waste management.

Laredo appealed the district court's ruling to the Texas Supreme Court, which heard oral arguments in the case in January 2018. Edward Burbach, who filed an amicus brief supporting the state on behalf of the Texas Retailers Association, said in the brief that, "Inconsistent local ordinances harm the sales of affected retailers, force the layoff of employees, deprive retailers of their existing inventory of bags, and impose an expensive and complex requirement on multisite retailers to comply with varying ordinances across the state."

The Texas Municipal League and the Texas City Attorneys Association filed an amicus brief for Laredo. "Extreme uniformity and regulation fails to address diverse local concerns," Christy Drake-Adams, who filed the brief for the organizations, said. "Texas is a great example of why that can’t work. A state as large and diverse geographically as Texas, that simply can’t work."

The court's decision preempted similar bans in other Texas cities, including Austin and Sunset Valley.

2017

Arizona: Attorney general finds Bisbee bag ordinance in violation of state law

Preemption in focus: Arizona
Gov. Doug Ducey expressed frustration with city and county labor laws that conflicted with state law in his January 2016 State of the State address. "I will use every constitutional power of the Executive Branch and leverage every Legislative relationship to protect small businesses and the working men and women they employ–up to and including changing the distribution of state-shared revenue," he said. The Arizona State Legislature followed suit with bills to allow state investigations into local laws and preempt local ordinances. In March 2016, state legislators expanded a 2015 law prohibiting local regulations on plastic bags to include containers made of cloth, glass, aluminum, and other packaging materials. SB 1266 and SB 1449, which were enacted in May 2016, limited local regulations on firearms and drones, respectively.

On October 24, 2017, state Attorney General Mark Brnovich (R) ruled that a five-cent bag fee enacted by the Bisbee City Council in 2012 violated a state law prohibiting local regulations on retail bag use. "Regardless of policy arguments for why the bag ban exists," he said, "the City of Bisbee does not have the authority to ignore state law and reach its policy goal by illegally imposing regulatory mandates on private citizens and businesses."

Brnovich's investigation of the bag ban was prompted by a September 2017 complaint by state Sen. Warren Petersen (R). A law enacted by the state in 2016, SB 1487, permits state legislators to request reviews of the legality of local ordinances by the attorney general's office. Under the law, localities with ordinances that are found to violate state law must bring them into compliance within 30 days or risk the loss of state funds.

Following Brnovich's ruling, Bisbee had until November 23, 2017, to revise its bag ban. The city council voted to make compliance with the ban voluntary on October 30, 2017.

Minnesota: State legislators preempt Minneapolis bag regulations

Gov. Mark Dayton (D) signed legislation on May 30, 2017, prohibiting cities from barring use of plastic bags by retailers. The new law blocked bag regulations, including a ban on plastic bags and a five-cent tax on paper bags, that had been approved by the Minneapolis City Council in 2016 and were set to take effect on May 31, 2017.

The Minnesota Grocers Association supported the state's preemption of the bag regulations, citing a concern that variations in local regulations would cause complications for grocery stores in the state. "We certainly are pleased that the Legislature acknowledged the challenges of patchwork, city-by-city ordinances when it comes to the bags at checkout," Association executive director Jamie Pfuhl said.

Minneapolis City Councilman Cam Gordon (Green), who sponsored the city's 2016 ordinance, said the council would consider revising and revisiting the bag ban. "Right now, I think we're taking a pause to review the language and look at the ordinance and see if there might be a pathway forward to still better regulate single-use bags and comply with state law," he said. As of March 2018, further action on bag bans by the city was still pending.

New York: Gov. Cuomo, state legislators preempt plastic bag ordinance

Gov. Andrew Cuomo (D) signed a bill on February 14, 2017, delaying implementation of a five-cent plastic bag fee approved by New York City in 2016. Cuomo described the city's proposal as "deeply flawed," pointing in particular to a provision allowing retailers to keep the fee as profit. "I understand the political process to pass a bill can require placating potential opposition," he said, "but a $100 million bonus to private companies is beyond the absurd."

Following the New York State Assembly's vote to delay the bag fee, fee cosponsors Margaret Chin (D) and Brad Lander (D) issued the following statement:

“	We are disappointed that the Assembly [decided] to ignore the unified voice of New York’s environmental, climate justice and neighborhood groups -- at the very moment the federal government is rolling back environmental protections. We appeal to Governor Cuomo to help us reach a compromise that would allow New York City to try out this effective, common-sense strategy for dealing with the 10 billion plastic bags that pollute our trees, oceans and landfills every year.	”
—Brad Lander and Margaret Chin (2017)

In March 2017, Cuomo established a task force that was described in a press release as "charged with developing a report and proposed legislation to address the detrimental impact of plastic bags on the state's environment. Members of the Task Force will work to develop a uniform and equitable statewide plan to address New York’s plastic bag problem." The New York State Plastic Bag Task Force released its report in January 2018.

Pennsylvania: Governor vetoes statewide ban on plastic bag bans

On June 30, 2017, Gov. Tom Wolf (D) vetoed a bill that would have preempted local restrictions on plastic bag use by retailers. House Bill 1071, which was approved by state legislators on June 19, 2017, included prohibitions on local taxes, fees, and regulations that were intended to discourage use of plastic bags.

Plastics manufacturers and trade associations supported the bill, arguing that banning bags would strip consumers of choice and risk the loss of jobs at state bag manufacturers. "These legislators [who support the preemption law] are concerned about their constituents and the jobs in their districts. The Governor should follow their lead," American Progressive Bag Alliance executive director Matt Seaholm said. Milesburg-based plastics manufacturer Novolex said, "It is a shame that Gov. Wolf decided to veto a common-sense, bipartisan bill that would have helped protect good-paying jobs in the state. Our facility in Milesburg, which employs more than 160 workers, would be well served with some certainty that its own state isn’t going to harm its ability to operate."

In his veto message, Wolf said that the preemption law was inconsistent with the state constitution and that the state should use its preemption powers sparingly. House Bill 1071 "potentially thwarts local governments from complying with their trustee obligations under Article I, Section 27 of the Pennsylvania Constitution, to protect and preserve the environmental resources in their communities," he said. "The prohibition under this bill, therefore, is not consistent with the rights vested by the Environmental Rights Amendment of the Pennsylvania Constitution, and the duties upon all governmental actors, including municipalities." He added that, "In my view, the Commonwealth should only on rare occasions preempt the rights of local governments to implement laws and policies that it believes are in its best interest. Here, the Commonwealth is impeding the freedom of local governments to regulate recyclable plastic bags."

2016

California: Lincoln city ordinance allows bag use after Proposition 67

California voters approved a statewide plastic bag ban, Proposition 67, on November 8, 2016. Senate Bill 270, the state law underlying Proposition 67, included a clause that said that any public agency that "adopted, before September 1, 2014, an ordinance, resolution, regulation, or rule relating to reusable grocery bags, single-use carryout bags, or recycled paper bags may continue to enforce and implement that ordinance, resolution, regulation, or rule."

According to Mark Murray, the executive director of Californians Against Waste, the purpose of the clause was to protect pre-existing local bag bans. "That was clearly the intent of the preemption language in the law," he said.

However, the city of Lincoln said it also exempted its businesses from the statewide ban. The Lincoln City Council passed a resolution in August 2014 that left decisions about whether to comply with statewide bag bans to retailers. City officials said the resolution was covered by the SB 270 clause and, therefore, that Lincoln's retailers were not bound by the ban. "We wrote our regulations so that the businesses had the choice," City Councilman Stan Nader said. "Obviously with Walmart and Safeway, they are larger corporate stores and probably made a corporate decision, company-wide, just to go ahead and follow the vote of the people [to comply with the statewide bag ban]."

Michigan: State legislators move to block local bag ordinances

Michigan Lt. Gov. Brian Calley (R) signed a bill prohibiting local bag regulations on behalf of Gov. Rick Snyder (R), who was out of town, in December 2016.

SB 853, which barred local bag bans and fees, preempted a 10-cent bag fee that had been approved by Washtenaw County officials in June 2016 and was slated to go into effect in April 2017. According to the local outlet MLive, the county's bag fee was "intended to eliminate unnecessary waste and incentivize people to be more environmentally conscious."

The Washtenaw County bag fee faced opposition from the Michigan Grocers Association and the Michigan Restaurant Association. "With many of our members owning and operating locations across the state," Michigan Restaurant Association vice president of government affairs Robert O'Meara said, "preventing a patchwork approach of additional regulations is imperative to avoid added complexities as it related to day-to-day business operations."

SB 853 was passed by the Michigan State Senate in May 2016 and the state House on December 1, 2016.

See also

Local Politics	2021 Election Analysis	Preemption conflicts
Municipal government Local courts School boards Local ballot measures Local recalls	Municipal elections, 2021 Local court elections, 2021 School board elections, 2021 Local ballot measure elections, 2021 Political recall efforts, 2021	Coronavirus • Energy infrastructure Firearms • GMOs • Labor LGBT • Marijuana Plastic bags Police department budgets Ridesharing Sanctuary jurisdictions • Soda taxes