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A state appeals court agrees that Athens’ plastic bag ban is unconstitutional

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ATHENS, Ohio (WOUB) — A state appeals court has ruled the city of Athens’ ban on plastic bags is unconstitutional.

Plastic single-use shopping bags at the checkout area in a Walmart store.
Plastic single-use shopping bags at the checkout area in a Walmart store. [JHVEPhoto | Shutterstock]
The court said in its decision last week the ban directly conflicts with a state law that gives people the choice to use whatever bag they please.

The Athens City Council passed the 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 ban.

On appeal, the city argued the state law giving people the right to use plastic bags violates home rule, which allows local governments to pass their own rules provided they don’t conflict with state laws.

There is no conflict in this case, the city argued.

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, the city argued.

The state’s bag-choice 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, the city argued.

The appeals court disagreed. The court echoed the state’s argument that plastic bags will eventually become part of the solid waste stream. So their use, including the right to use them, is a solid waste issue, the court said.

The state’s bag-choice law “serves an overriding statewide interest in managing solid waste to promote the general welfare by authorizing all persons in Ohio to use the auxiliary container they feel is best suited to their needs,” the court said.

The city had also argued that plastic bags are difficult to recycle — so difficult they cannot be placed in curbside recycling bins. This is another reason the bag-choice law has no place in a broader law dealing with recycling, the city argued. The state presented no evidence the bags can be recycled, the city noted.

But the court said it doesn’t matter whether plastic bags can be recycled. What matters is they will become waste.

The city is deciding whether to appeal to the Ohio Supreme Court.