The bag ban on the ballot in Bozeman, regardless of the outcome, could spark greater interest in state preemption laws that prevent locally-imposed regulations and taxes.
In Montana, a red state where Republicans control the legislature and the Governor’s mansion, voters are poised to help the GOP take control of the U.S. Senate this November. Most polling shows Republican nominee Tim Sheehy with a growing lead over incumbent Senator Jon Tester (D). Proponents of a local measure appearing on the ballot in the city of Bozeman, however, are hoping to provide one Election Day outcome that is countervailing to the overall trend in Montana politics.
Bozeman residents will be asked to vote this November on a ballot measure that would impose a city-wide prohibition on plastic shopping bags, straws, stirrers, and foam takeout food containers. This local plastics ban was placed on the Bozeman ballot even though Governor Greg Gianforte (R-Mt.) and state lawmakers enacted legislation in 2021 that specifically forbids local governments in Montana from regulating such products. The ban proposed in Bozeman is allowed to proceed because of a court ruling earlier this year that struck down the 2021 state preemption law.
Though Montana’s preemption law was struck down in court, nearly 20 other states have laws on the books preempting local regulation and taxation of plastic bags and other products. Legislators in states without similar preemption laws in place were already interested in such reform, but the proposal in Bozeman, regardless of the outcome, is likely to heighten legislators’ interest in preemption.
Critics of the proposed Bozeman plastics ban argue that because of the measure’s broad language, its enactment would unintentionally ban reusable shopping bags, handbags, backpacks, and other items that are made with plastic but were not the target of this proposal.
“The only bag the proposed ordinances would ban are single-use plastic carryout bags,” Jeremy Drake with Montana Plastic Free, the organization sponsoring the proposed ballot measure, claimed in an August statement. Whether that is the case, however, is a matter that would likely wind of being decided by a judge, as was the case in New York. New York has already provided a cautionary tale about the unintended consequences of a broadly worded plastic bag ban like the one now under consideration in Bozeman.
New York legislators enacted a state plastic bag ban in 2020 that was broadly worded like the pending Bozeman measure. While the letter of the law stipulated that bags of any kind containing plastic, including reusable shopping bags, were to be prohibited, regulators at the New York Department of Environmental Conservation, who were tasked with implementing the ban, erroneously informed businesses that reusable shopping bags and other bags with plastic components were exempt from the ban. Retailers subsequently took legal action against the prohibition.
“Reusable bags may not be distributed if they contain plastic of any kind, barring some further action by the Legislature,” acting New York Supreme Court Justice Gerard Connolly noted in his ruling. In addition to clarifying that New York’s ban applied to all non-cloth bags containing plastic, Judge Connolly also ordered the state to cover plaintiffs’ court costs on account of the confusion sowed by regulators’ incorrect instructions.
Years of experience with plastic bag bans imposed by other cities and states has also provided evidence of another unintended consequence of plastic bag prohibitions, which is heightened threat of illness caused by use of inadequately washed reusable shopping bags. A 2010 investigation by researchers at Oregon Health and Science University, for example, traced the spread of norovirus infection to a reusable shopping bag that had become contaminated. In fact, Oregon health officials found the reusable bag in question was still testing positive for norovirus and other pathogens two weeks after contamination.
That Oregon investigation followed a 2010 study jointly conducted by the University of Arizona and Loma Linda University, which found reusable grocery bags testing positive for large quantities of bacteria. Among the tested bags, 12% tested positive for E. coli. Bags that had been stored in car trunks for two hours were found to have a ten fold increase in the number of bacteria. The way in which reusable bags can spread disease was such a concern during the Covid-19 pandemic that Governor Gavin Newsom (D-Calif.) suspended California’s statewide plastic bag ban. Plastic bag bans in other jurisdictions were suspended during the pandemic for the same reason.
“The concern about sanitation was especially high during the COVID-19 pandemic, when a number of states that had adopted plastic bag bans suspended implementation due to hygiene concerns,” Chris Cargill, president of the Mountain States Policy Center, noted in a September blog post about the Bozeman proposal. Cargill also pointed to research that calls into question the effectiveness of bag bans when it comes to mitigating plastic use.
“The University of Georgia’s school of Forestry and Natural Resources completed a comprehensive review of California’s plastics policy, looking at plastic trash bag sales in counties with bans or fees in place, versus those without. Researchers found that small trash bag sales simply increased dramatically – by as much as 25% – in communities with a ban, indicating that consumers were not reducing their use, just getting them someplace else.”
Given its controversial path to the ballot, the Bozeman plastics ban could face legal challenge even if approved by voters. The original instructions were that petition signatures must be signed by 25% or more of registered Bozeman voters. Election officials in Gallatin County, however, allowed the bag ban measure to be placed on the ballot even though petitions were signed by less than 24% of Bozeman voters.
Cottonwood Environmental Law Center had sued to have the measure placed on the ballot despite not achieving the 25% threshold, arguing that only 15% of the electorate needed to sign the petition, not 25%. Gallatin County election officials decided to settle and to put the measure before voters this November.
County election officials claim they had to place the measure on the ballot because they didn’t have enough time to respond to the lawsuit filed by Cottonwood Law Center. “My first priority is to meet all election deadlines and we could not fight this in a timely manner,” Eric Semerad, Gallatin County Clerk and Recorder, told MTN News. By that standard, however, a legally dubious measure can be forced onto the ballot so long as a lawsuit is filed and timed so as to deny the county enough time to respond.
Regardless of the outcome for the Bozeman bag ban this November, this instance is likely to spark greater interest moving forward in passing state preemption laws that protect employers and families from locally-imposed regulations and their adverse economic effects. There are still plenty of states that have yet to pass legislation preempting local plastics bans and taxes, but where most lawmakers would be inclined to do so. Don’t be surprised if this current experience in Bozeman is referenced when such proposals are debated during 2025 legislative sessions.
By Patrick Gleason [LINK]