Cincinnati will not challenge the Ohio law that has temporarily blocked cities from enforcing local bans on single-use plastic bags. Plastic bags became a flashpoint for health concerns in the early stages of the pandemic, but Ohio’s recent action to protect access to plastic bags comes at a time when other states are moving in the opposite direction.
“We anticipated this would happen,” says Cincinnati City Councilman Chris Seelbach, who sponsored the local ordinance that sought to eliminate the use of plastic bags in businesses. It did this by mandating that stores (including restaurants) charge a 5-cent fee to provide recyclable and reusable bags to shoppers who don’t bring their own. The ordinance passed city council by a 7-1 vote on Sept. 10.
Then came state lawmakers with a bill, HB 242. The first version of this “pro-business” legislation included language to permanently block cities from enforcing local bans on plastic bags — but this provision triggered opposition from an influential Republican: Ohio Gov. Mike DeWine. In December 2019, the governor himself called the bill “a mistake.”
At the time, DeWine said communities should “do what they think is best” when it comes to plastic bags.
Now, some 11 months later, DeWine has signed that very bill into law, upending not just the plastic bag ban in Cincinnati, but similar pending measures in Cuyahoga County and Bexley. What changed? First, HB 242’s language was tweaked in the Senate with an amendment that altered the previously-permanent ban to just a 12-month moratorium.
The other change was COVID-19.
“I will sign the bill because it is temporary, and I think you can make an argument for it because of the COVID period,” DeWine told WOSU, which reported Oct. 2 that the governor didn’t think local bans were a good idea at a time when pandemic-stricken businesses were relying on carry-out to stay afloat.
Supporters of Cincinnati’s ban had hoped that its structure as a fee, and not a tax, would make it immune from the state’s legislation, Seelbach said. But in a statement to CityBeat, Andrew Garth, the city’s interim solicitor and legal representative, said any attempt to fight the state in court could take more than a year to adjudicate.
For Cincinnati, the effort just isn’t worth the time.
“(The) resources required to contest the State’s action do not, on balance, weigh in favor of legal challenge,” wrote Garth, though he also suggested the state’s plastic bag-preserving moratorium conflicted Cincinnati’s rights to “home rule.”
The state’s actions, Garth wrote, amount to “an overreach by the General Assembly and an inappropriate effort by the State to undo legitimate policy initiatives enacted by accountable, local elected officials.”
The state’s intervention is a setback for environmental activists. In Cincinnati, the anti-plastic bag initiative had been long-awaited by those concerned about pollution, says Elissa Yoder Mann, conservation program manager at Sierra Club Ohio.
“I really feel like Governor DeWine has put out this messaging that plastic bags somehow make us safer, and it’s simply not true,” Mann says, pointing out that the danger of coronavirus spread is now understood to be greatest through the air, not via surfaces — including not on reusable bags. As support, she referred to a June letter signed by health experts and scientists from more than 19 countries defending the pandemic safety of reusable bags.
Indeed, back in March and April, as the pandemic shutdowns stirred anxieties amid retailers and consumers, multiple states paused existing prohibitions on plastic bags. (This happened among cities as well: In late April, as the pandemic surged, Cuyahoga County announced it would postpone its ban on plastic bags which had been set to activate in July.)
But in the subsequent months, scientists studying the coronavirus found little evidence to support fears about virus transmission from bags. According to the website for the U.S. Centers for Disease Control, “No cases of COVID-19 have been identified where infection was thought to have occurred by touching food, food packaging, or shopping bags.”
Instead, as states and localities focused on masks as the most effective tactic to reduce the spread of infectious particles through the air, governments have moved to re-active bans on plastic bags. Statewide bans have been reinstated in California and Massachusetts; pending plastic bag bans set to kick-in by 2021 are moving forward in Vermont, Delaware, and New Jersey; and in Maine, lawmakers voted to delay the state’s planned plastic bag ban, but only until January 2021.
Whereas the rest of the country is moving on from knee-jerk plastic bag ban-bans, Ohio is embracing one. The earliest date plastic bag bans can return is at least 12 months away, and that’s plenty of time for state lawmakers to make another attempt at more permanent legislation against cities like Cincinnati.
Councilman Seelbach, the sponsor of Cincinnati’s now-suspended ordinance, notes that the local lawmakers tried to prepare for the state’s intervention by including language stipulating that enforcement begin “the day following the expiration” of any state law outlawing bans on plastic bags.
Now, with HB 242 signed by DeWine, all Cincinnati can do is wait.
“Our legislation is null and void until their ban expires,” Seelbach says. “The only thing we can do is hope that they don’t extend the ban on our ban.”
This article appears in The Fall Guide.
