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Athens attempted to revive its plastic bag ban in arguments before a state appeals court
By: David Forster
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CHILLICOTHE, Ohio (WOUB) — An attorney for the city of Athens told a state appeals court Thursday the city was exercising its constitutional right to home rule when it implemented a plastic bag ban for merchants.
The Athens City Council passed the plastic bag ban in May 2023, and it took effect in January 2024. The state sued to stop it and last August an Athens County judge struck down the bag ban.
The judge agreed with the state that the ban was unconstitutional because it was in direct conflict with a state law that allows merchants to use plastic bags.
The Ohio constitution gives cities broad power to enact their own laws, under what is known as home rule. But local rules cannot directly conflict with state law.
Branner Hittle argued there is a difference between use and provide. She agreed state law guarantees people the right to use plastic bags. But the city’s ordinance didn’t ban use, she argued, it prohibited merchants from providing bags.
Branner Hittle also argued the city did not overstep its home rule authority. It’s not enough that a local rule conflicts with a state law. The law has to be part of a comprehensive legislative enactment, meaning the state has essentially covered the field on an issue and left no room for local governments to make their own rules that conflict with what the state has done.
The state did not do this when it comes to plastic bags, Branner Hittle argued.
The state’s plastic bag guarantee is part of a law that addresses recycling and litter prevention, which is part of a broader set of laws addressing solid waste management.
But giving people the right to use a plastic bag is about personal choice and has nothing to do with recycling or litter or solid waste management more broadly, Branner Hittle argued.
The Legislature, she said, “put this in a chapter about recycling but it doesn’t belong there.”
The city, on the other hand, passed its ban to serve its environmental goals, because the bags are difficult to recycle and cause environmental harm.
So there is no conflict, Branner Hittle argued, because the state’s law allowing people to use plastic bags is not really about recycling or solid waste more generally. This leaves room for cities to pass their own laws regulating plastic bags as they relate to these environmental issues.
The state’s attorney, Stephen Tabatowski, argued Branner Hittle was essentially making distinctions without a difference.
The right to use a plastic bag implies that merchants have a right to provide them, he argued.
“The provision of plastic bags at the point of sale is directly related to use,” he said.
Tabatowski also argued the law guaranteeing the right to use plastic bags is a natural fit in the state’s broader plan to regulate solid waste, including recycling. These bags, once used, will soon become part of the solid waste stream, he said.
The 4th District Court of Appeals will issue its decision sometime in the coming weeks.