Save the Plastic Bag Coalition v. City of Manhattan Beach , 127 Cal. Rptr. 3d 710 ( 2011 )

Filed 7/14/11
IN THE SUPREME COURT OF CALIFORNIA
SAVE THE PLASTIC BAG COALITION, )
)
Plaintiff and Respondent, )
) S180720
v. )
) Ct.App. 2/5 B215788
CITY OF MANHATTAN BEACH, )
) Los Angeles County
Defendant and Appellant. ) Super. Ct. No. BS116362
____________________________________)
Here we consider two questions: (1) What are the standing requirements
for a corporate entity to challenge a determination on the preparation of an
environmental impact report (EIR)? (2) Was the city of Manhattan Beach required
to prepare an EIR on the effects of an ordinance banning the use of plastic bags by
local businesses?
Plaintiff, a coalition of plastic bag manufacturers and distributors, claims
standing to maintain a citizen suit to vindicate the public interest in environmental
quality. The trial court and the Court of Appeal granted plaintiff standing on that
basis. Both courts rejected the city‟s argument that plaintiff had failed to make the
enhanced showing required by Waste Management of Alameda County, Inc. v.
County of Alameda (2000) 79 Cal.App.4th 1223, 1238 (Waste Management) for
corporate entities to bring a citizen suit. We agree that plaintiff would qualify for
public interest standing here, and disapprove Waste Management‟s holding that
corporations are subject to heightened scrutiny when they file citizen suits. We
also conclude that plaintiff, which represents businesses directly affected by the
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Manhattan Beach ordinance, has standing in its own right to challenge the city‟s
analysis of environmental impacts.
On the merits, the courts below ruled that the city had to prepare an EIR
before implementing a ban on plastic bags. We disagree. Substantial evidence
and common sense support the city‟s determination that its ordinance would have
no significant environmental effect. Therefore, a negative declaration was
sufficient to comply with the requirements of the California Environmental
Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.).1 Accordingly, we
reverse the Court of Appeal‟s judgment.
I. BACKGROUND
On June 3, 2008, the city manager of Manhattan Beach issued a staff report
recommending the adoption of an ordinance banning the use of “point-of-sale
plastic carry-out bags” in the city. The proposed ordinance included a finding that
CEQA did not apply because the ban would have no significant effect on the
environment (Cal. Code Regs., tit. 14, § 15061(b)(3)), and because it qualified as a
regulatory program to protect the environment (id., § 15038).
Plaintiff, describing itself as “a newly formed group of companies that will
be affected by any ordinance to ban or impose fees on plastic bags,” objected to
the proposed ordinance. 2 It claimed that the movement to ban plastic bags was
1 Further statutory references are to the Public Resources Code, unless
otherwise noted. A “negative declaration” is “a written statement briefly
describing the reasons that a proposed project will not have a significant effect on
the environment and does not require the preparation of an environmental impact
report.” (§ 21064.)
2 In its subsequent writ petition, plaintiff stated that it was “an
unincorporated association” of “plastic bag manufacturers and distributors directly
and indirectly affected and prejudiced by the Ordinance.” Some of its members,
(footnote continued on next page)
2
based on misinformation and would increase the use of paper bags, with negative
environmental consequences. Plaintiff notified the city that it would sue if the
ordinance was passed without a full CEQA review.
The city then conducted an initial study evaluating the environmental
impacts of the proposed ordinance. The study noted: “Reducing the use of plastic
bags in Manhattan Beach will have only a modest positive impact on the migration
of plastic refuse into the ocean. However, as a coastal City the imposition of the
ban is likely to have some modest impact on improving water quality and
removing a potential biohazard from the marine environment.” The study
recognized that a switch from plastic to paper bags would have some negative
environmental consequences. More energy is needed to manufacture and
distribute paper bags, and more wastewater is produced in their manufacture and
recycling. However, the study concluded that the impacts of a plastic bag ban
would be less than significant, for the following reasons:
“The population of Manhattan Beach is only 33,852 according to the 2000
census. However, per capita bag usage would provide an inflated measurement of
any net increase in paper bag use since the proposed ordinance does not ban the
use of plastic bags by residents but [rather] their distribution at point of sale. Only
11.2% of the City is zoned commercial and there are only 217 licensed retail
establishments within the City which might use plastic bags. There are only two
supermarkets, three (and two future) drug stores, and one Target store known to be
high volume users of plastic shopping bags in the City which would be affected by
(footnote continued from previous page)
specifically including three corporations, supplied plastic bags to businesses in
Manhattan Beach.
3
the ban. The remaining businesses tend to be smaller and lower volume and many
restaurants and most fast food outlets already use paper bags for take out orders.
“Plastic bags would not be replaced by paper bags on a one to one ratio
since paper bags have a higher capacity. One study (commissioned by the plastic
bag industry) estimates that for every 1500 plastic bags it would take 1000 paper
bags to replace them. Other studies find that paper bags may hold up to four times
the volume of plastic bags. In light of anticipated education efforts, increased
publicity (partially resulting from the subject ordinance), and the public‟s
increased concern for pollution and water quality, at least some percentage of
plastic bags are expected to be replaced by reusable bags rather than paper bags.”
The initial study observed that the ordinance would require paper bags “to
have 40% recycled content reducing landfill demand and encouraging reduced use
with increased costs for paper bags. . . . The substitution of paper bags for plastic
that does occur, although larger in mass per square foot compared to plastic,
would not significantly impact landfill capacity since a larger portion of paper
bags is recycled than plastic, substituted paper bags will be at least 40% paper
diverted from landfills, and the City of Manhattan Beach represents a small
proportion of regional landfill users.”
Based on these considerations, the initial study concluded that any increase
in the use of paper bags in Manhattan Beach would be relatively small, with
minimal impacts on energy use, air quality, water quality, vehicle traffic, and solid
waste facilities. It noted that the ordinance posed no environmental threat to fish,
wildlife, plant communities, historical resources, or human beings. On the other
hand, it would decrease the prevalence of plastic bag litter, both in the city itself
and in the ocean. Therefore, the study recommended adoption of a negative
declaration finding that the ordinance could not have a significant effect on the
environment.
4
Plaintiff again objected and threatened litigation if the ordinance was
adopted. Plaintiff referred to two studies, one prepared in 2005 by the Scottish
government and one issued in 2008 by the editors of an on-line newsletter, the Use
Less Stuff (ULS) Report. Both concluded that the “life cycle” of paper bags,
including their manufacture, transport, and disposal, has a greater environmental
impact than the “life cycle” of plastic bags. Plaintiff contended this evidence
established a reasonable possibility that increased use of paper bags as a result of
the proposed ordinance would have a significant negative effect on the
environment, requiring the preparation of a full EIR.
On July 1, 2008, the city issued another staff report addressing the “life
cycle” studies. In addition to the Scottish and ULS studies, city staff had reviewed
a Washington Post report; a 1990 study by Franklin Associates, Ltd.; an analysis
conducted by the Fund for Research into Industrial Development, Growth and
Equity; and a 2007 report by Boustead Consulting & Associates Ltd. The staff
report also discussed a comparative analysis of bag “life cycle” studies prepared
by the South African Department of Trade and Industry. The report noted that
varying assumptions were employed from study to study, and that “differing
results from the [studies] could be selectively used to lend support to proponents
of either plastic or paper bags.” The South African analysis had concluded that
“life cycle” studies were “sensitive to and limited by factors such as scope,
objectivity, geography, climate, and energy sources,” and “can be constructed to
carry a specific message by carefully selecting the impacts to examine.” City staff
recommended adopting the proposed ordinance, and embarking on “an aggressive
education and outreach program to inform our residential and business community
of the ban and to promote the use of reusable bags.”
The Manhattan Beach City Council adopted ordinance No. 2115 on July
15, 2008. The council‟s findings are set forth in section 1 of the ordinance:
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“A. As a coastal city Manhattan Beach has a strong interest in protecting
the marine environment an element which contributes to the unique quality of life
in the City.
“B. Plastic and paper bags each have negative impacts on the environment.
It is well known that paper bags require more energy to manufacture and recycle
and generate effluent during these processes. It is also known that paper bags are
bulkier and heavier than plastic bags.
“C. However a primary and significant problem with plastic bags is that
they do not biodegrade and are extremely light and easily caught in the wind. In a
coastal city like Manhattan Beach even plastic bags which are properly discarded
can find their way into the marine environment where they do not break down and
essentially remain indefinitely.
“D. The Pacific Ocean contains a huge accumulation of debris known as
the „Great Pacific Garbage Patch‟ which consists mostly of plastic debris. Some
scientists estimate the density of plastic in this garbage patch as one million pieces
of plastic per square mile. While plastic does not bio-degrade it does „photo-
degrade‟ breaking down into smaller pieces which can make their way into the
food chain [via] such animals as jellyfish.
“E. While the exact numbers are unknown there are many reported
instances of marine animals being injured or dying from ingesting or choking on
plastic debris in the ocean. It is reasonable to conclude from such information that
the presence of plastic debris in the ocean provides a hazard for marine life.
“F. Because there is a strong possibility that plastic bags discarded in
Manhattan Beach can end up in the ocean where they will last indefinitely and
create an aesthetic blight and potential hazard to marine life (and paper bags will
not do so because they biodegrade and are less likely to be blown out to sea) it is
in the best interests of the public health, safety and welfare to adopt the proposed
6
ban on distribution of plastic bags at point of sale within the boundaries of the City
of Manhattan Beach.
“G. The City Council of the City of Manhattan Beach conducted a noticed
public hearing regarding the project at their regular scheduled meeting of July 1,
2008. The public hearing was advertised pursuant to applicable law and testimony
was invited and received.
“H. An Initial Environmental Study was prepared in compliance with the
provisions of the California Environmental Quality Act. Based upon this study it
was determined that the project is not an action involving any significant impacts
upon the environment, and a Negative Declaration was prepared and is hereby
adopted.
“I. The proposed amendments will have no negative impact on Fish and
Game resources pursuant to Section 21089(b) of the Public Resources Code.”
(City of Manhattan Beach Ord. No. 2115, § 1.)
The ordinance provides: “No Affected Retail Establishment, Restaurant,
Vendor or Non-Profit Vendor shall provide Plastic Carry-Out Bags to customers at
the point of sale. Reusable Bags and Recyclable Paper Bags are allowed
alternatives.” (City of Manhattan Beach Ord. No. 2115, § 2(b)(A).) “Recyclable”
is defined as: “material that can be sorted, cleansed, and reconstituted using
Manhattan Beach‟s available recycling collection programs.” (Id., § 2(a).) The
ordinance also states: “Affected Retail Establishments are strongly encouraged to
provide incentives for the use of Reusable Bags through education and through
credits or rebates for customers that use Reusable Bags at the point of sale for the
purpose of carrying away goods.” (Id., § 2(b)(C).)
On August 12, 2008, plaintiff petitioned for a writ of mandate to bar
enforcement of the ordinance until the city prepared an EIR. Plaintiff claimed that
public rights were at stake, and that its “objective in bringing this action [was] that
7
of an interested citizen seeking to procure enforcement of . . . public duties.” The
city responded that plaintiff lacked standing to bring a citizen suit under Waste
Management, supra, 79 Cal.App.4th 1223, because corporations are not “citizens”
and plaintiff was seeking to advance the commercial and competitive interests of
its members. The city also argued that plaintiff had failed to show that the
ordinance would have any substantial impact on the environment.
The trial court granted the writ. It found that plaintiff had standing because
it was not a “for-profit corporation that is seeking a commercial advantage over a
specific competitor,” and because it had raised a “genuine environmental issue:
whether the banning of plastic bags, and the consequent increase in the use of
paper bags, will increase, rather than decrease, injury to the environment.” The
court further concluded that the evidence in the record supported a fair argument
that the ban would increase environmental damage, so that an EIR was required.
The Court of Appeal affirmed, in a split opinion. On the standing question,
the majority decided that plaintiff was qualified to pursue its action under the
“public right/public duty” exception to the requirement that a mandamus petition
be brought by a “beneficially interested” party. (Green v. Obledo (1981) 29
Cal.3d 126, 145; Code Civ. Proc., § 1086.) The majority reasoned that plaintiff
was not asserting a commercial or purely competitive interest, and should be
allowed to seek enforcement of the city‟s public duty to prepare an EIR on the
effects of the ordinance. On the merits, the majority held that plaintiff had
submitted substantial evidence to support a fair argument that the ban would have
significant environmental impacts.
The dissent did not address the standing issue, but argued that CEQA
requirements would be stretched to the point of absurdity if a small city were
required to prepare an EIR on the effects of increased paper use that might result
from a ban on the distribution of plastic bags. The dissent concluded that the “life
8
cycle” studies on the global environmental effects of paper production did not
provide substantial evidence of any environmental harm caused by the Manhattan
Beach ordinance.
We granted the city‟s petition for review.
II. DISCUSSION
A. Standing
As a general rule, a party must be “beneficially interested” to seek a writ of
mandate. (Code Civ. Proc., § 1086.) “The requirement that a petitioner be
„beneficially interested‟ has been generally interpreted to mean that one may
obtain the writ only if the person has some special interest to be served or some
particular right to be preserved or protected over and above the interest held in
common with the public at large. [Citations.] As Professor Davis states the rule:
„One who is in fact adversely affected by governmental action should have
standing to challenge that action if it is judicially reviewable.‟ (Davis, 3
Administrative Law Treatise (1958) p. 291.)” (Carsten v. Psychology Examining
Com. (1980) 27 Cal.3d 793, 796-797.) The beneficial interest must be direct and
substantial. (Parker v. Bowron (1953) 40 Cal.2d 344, 351; Braude v. City of Los
Angeles (1990) 226 Cal. App. 3d 83, 87; 8 Witkin, Cal. Procedure (5th ed. 2008)
Extraordinary Writs, § 75, p. 956.)
Nevertheless, “ „where the question is one of public right and the object of
the mandamus is to procure the enforcement of a public duty, the [petitioner] need
not show that he has any legal or special interest in the result, since it is sufficient
that he is interested as a citizen in having the laws executed and the duty in
question enforced.‟ ” (Bd. of Soc. Welfare v. County of L.A. (1945) 27 Cal.2d 98,
100-101.) This “ „public right/public duty‟ exception to the requirement of
beneficial interest for a writ of mandate” “promotes the policy of guaranteeing
citizens the opportunity to ensure that no governmental body impairs or defeats the
9
purpose of legislation establishing a public right.” (Green v. Obledo, supra, 29
Cal.3d at pp. 145, 144; see also Environmental Protection Information Center v.
California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 479.) We
refer to this variety of standing as “public interest standing.” (See Dix v. Superior
Court (1991) 53 Cal.3d 442, 453.)
Here, plaintiff claims public interest standing to pursue its CEQA action.
The city, relying on Waste Management, supra, 79 Cal.App.4th 1223, argues that
plaintiff is not a “citizen” and has not demonstrated a genuine and continuing
environmental concern sufficient to support public interest standing. In Waste
Management, a landfill operator obtained a writ of mandate directing that permits
issued to a competing operator be set aside and not reissued until the
environmental effects of the competitor‟s operations were reviewed under CEQA.
(Waste Management, supra, 79 Cal.App.4th at p. 1228.) The Court of Appeal
reversed, concluding that the plaintiff lacked standing.
The Waste Management court first held that the plaintiff did not have the
beneficial interest required for a writ of mandate because it asserted only a
commercial and competitive interest. The plaintiff‟s grievance was that it had
been required to undergo expensive CEQA review in a comparable permitting
process, and would suffer economic injury if its competitor escaped such costs of
compliance. The court ruled that this injury was not within the “zone of interests”
protected by CEQA, and thus was too indirect to establish the requisite beneficial
interest. (Waste Management, supra, 79 Cal.App.4th at p. 1235.)3
3 The Waste Management court first declared that an interest within the
regulated zone is a second prong of the beneficial interest test. The court
subsequently acknowledged that the “zone of interests” standard is a federal rule
of standing, but suggested it is implicitly included within California‟s requirement
(footnote continued on next page)
10
The court then considered whether the plaintiff qualified for public interest
standing. It observed that this exception to the beneficial interest requirement is
meant to give citizens an opportunity to ensure the enforcement of public rights
and duties. The plaintiff, however, was a corporation, and corporations are not
generally regarded as “citizens.” (Waste Management, supra, 79 Cal.App.4th at p.
1237.) Reasoning that corporations are typically motivated by corporate interests
rather than the interests of citizenship, the court decided that when a corporation
claims public interest standing it must “demonstrate it should be accorded the
attributes of a citizen litigant.” (Id. at p. 1238.) “[W]hen a nonhuman entity
claims the right to pursue a citizen suit, the issue must be resolved in light of the
particular circumstances presented, including the strength of the nexus between
the artificial entity and human beings and the context in which the dispute arises.”
(Ibid.) The court suggested the following factors for consideration: whether the
corporation has shown a continuing interest in or commitment to the public right
(footnote continued from previous page)
that the plaintiff‟s interest in enforcement must be a direct one. (Waste
Management, supra, 79 Cal.App.4th at p. 1233-1234.) We have not adopted this
federal standing doctrine for use in California courts. Its application in federal
courts has not been entirely uniform. (Compare, e.g., Nevada Land Action Assn. v.
U.S. Forest Service (9th Cir. 1993) 8 F.3d 713, 716 [plaintiff suffering only
economic injury has no interest within “zone” protected by NEPA] with
Snoqualmie Indian Tribe v. FERC (9th Cir. 2008) 545 F.3d 1207, 1216-1217
[party with direct economic interest in regulatory action is not subject to “zone of
interest” requirement].)
We reiterate our recent admonition that “[t]here are sound reasons to be
cautious in borrowing federal standing concepts, born of perceived constitutional
necessity, and extending them to state court actions where no similar concerns
apply.” (Kwikset Corp. v. Superior Court (2011) 51 Cal. 4th 310, 322, fn. 5; see
also Environmental Protection Information Center v. Department of Forestry &
Fire Protection (1996) 43 Cal.App.4th 1011, 1020.)
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being asserted; whether it represents individuals who would be beneficially
interested in the action; whether individuals who are beneficially interested would
find it difficult or impossible to seek vindication of their own rights; and whether
prosecution of the action as a citizen suit by a corporation would conflict with
other competing legislative policies. (Ibid.)
In the case before us, the Court of Appeal cited Waste Management but did
not hold plaintiff to the special showing required by that decision. Though
plaintiff is an association representing corporate entities, the court simply decided
that plaintiff‟s interest was not purely commercial and competitive, observed that
“maintaining a quality environment is a matter of statewide concern,” and
concluded that public interest standing was available to seek enforcement of the
city‟s duty to prepare an EIR weighing the impacts of a ban on plastic bags.
We agree with the Court of Appeal that plaintiff‟s commercial interests
were not an impediment to its standing here. Further, we approve the court‟s
implicit rejection of the Waste Management rule holding corporations to a higher
standard in qualifying for public interest standing. Only one other Court of
Appeal has considered the details of the Waste Management factors when
determining whether a corporation has standing to bring a citizen suit. (Regency
Outdoor Advertising, Inc. v. City of West Hollywood (2007) 153 Cal.App.4th 825,
832-833.)4 A more cursory approach was taken in Burrtec Waste Industries, Inc.
v. City of Colton (2002) 97 Cal.App.4th 1133, a case like Waste Management that
4 In Imagistics Internat., Inc. v. Department of General Services (2007) 150
Cal.App.4th 581, the Waste Management Court of Appeal held that if the Waste
Management standards were applied to the instant corporate plaintiff, they would
not support its claim of standing to bring a taxpayer action. (Imagistics, at pp.
593-594.)
12
involved competing waste disposal companies. The Burrtec court reasoned that
the plaintiff‟s corporate status did not affect its right to seek redress for the city‟s
failure to provide the public notice required by CEQA before adopting a negative
declaration for a competitor‟s conditional use permit. (Id. at pp. 1138-1139.) The
court then summarily noted that the plaintiff was qualified to bring a citizen suit
under the Waste Management criteria because it allegedly “encourage[d] and
monitor[ed] environmental compliance, including CEQA determinations, by itself
and other waste companies in Southern California.” (Id. at p. 1139.)
In other cases where corporate plaintiffs have asserted public interest
standing, the Courts of Appeal have done what the court below did here: referred
to Waste Management but ignored the criteria it would impose on corporate
entities. (Urban Habitat Program v. City of Pleasanton (2008) 164 Cal.App.4th
1561, 1581 [nonprofit corporation had standing in citizen suit challenging housing
regulations]; Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th
1241, 1252 [contractor‟s corporate status did not bar it from joining citizen suit].)
As these courts have recognized, the fact that a corporation is not technically a
“citizen” for most purposes (see 9 Witkin, Summary of Cal. Law (10th ed. 2005)
Corporations, § 1, p. 776) does not necessarily affect its standing to pursue a
“citizen suit.”
The term “citizen” in this context is descriptive, not prescriptive. It reflects
an understanding that the action is undertaken to further the public interest and is
not limited to the plaintiff‟s private concerns. Entities that are not technically
“citizens” regularly bring citizen suits. (E.g., Common Cause v. Board of
Supervisors (1989) 49 Cal.3d 432, 439; Urban Habitat Program v. City of
Pleasanton, supra, 164 Cal.App.4th at p. 1581; see 8 Witkin, Cal. Procedure,
supra, Extraordinary Writs, § 85, pp. 970-973, citing cases.) Absent compelling
policy reasons to the contrary, it would seem that corporate entities should be as
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free as natural persons to litigate in the public interest. (See Green v. Obledo,
supra, 29 Cal.3d at p. 145 [public interest exception “may be outweighed in a
proper case by competing considerations of a more urgent nature”].)
The Waste Management court found such a policy reason in the notion that
“it generally is to be expected that a corporation will act out of a concern for what
is expedient for the attainment of corporate purposes (see Marsili v. Pacific Gas &
Elec. Co. (1975) 51 Cal.App.3d 313, 322-325), rather than by virtue of the
neutrality of citizenship (see Carsten v. Psychology Examining Com., supra, 27
Cal. 3d at p. 799; Laidlaw Environmental Services, Inc., Local Assessment Com. v.
County of Kern [(1996)] 44 Cal.App.4th [346,] 354).” (Waste Management,
supra, 79 Cal.App.4th at p. 1238.) This presumption is overbroad. Corporate
purposes are not necessarily antithetical to the public interest. Furthermore, the
Waste Management restriction on public interest standing applies to all sorts of
citizen suits by corporate entities, even those undertaken to enforce public rights
and duties in areas where corporations have particular expertise and thus may have
an enhanced understanding of the public interests at stake.
The Carsten court‟s reference to “the neutrality of citizenship” was a
rhetorical flourish designed to highlight the fact that the plaintiff in that case was a
member of an administrative board who disagreed with a board decision. Thus,
her challenge to the decision was motivated by interests arising from her service
on the board, rather than by broader public concerns. (Carsten v. Psychology
Examining Com., supra, 27 Cal.3d at p. 799; see also Laidlaw Environmental
Services, Inc., Local Assessment Com. v. County of Kern, supra, 44 Cal.App.4th at
p. 354 [members of local assessment committee lacked public interest standing to
challenge decisions of agency that appointed them]; Braude v. City of Los Angeles,
supra, 226 Cal.App.3d at p. 91 [city council member lacked public interest
standing to raise CEQA challenge to council‟s approval of project].) Carsten did
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not suggest that neutrality is a necessary prerequisite for public interest standing;
indeed, truly neutral parties are unlikely to bring citizen suits. “The purpose of a
standing requirement is to ensure that the courts will decide only actual
controversies between parties with a sufficient interest in the subject matter of the
dispute to press their case with vigor.” (Common Cause v. Board of Supervisors,
supra, 49 Cal.3d at p. 439, discussing public interest standing.)
The problem the Waste Management court sought to address with its
sweeping limitation on corporate public interest standing was a discrete one: an
attempt to use CEQA to impose regulatory burdens on a business competitor, with
no demonstrable concern for protecting the environment. Such an attempt would
be equally improper if launched by an individual. We disapprove Waste
Management of Alameda County, Inc. v. County of Alameda, supra, 79
Cal.App.4th 1223, to the extent it held that corporate parties are routinely subject
to heightened scrutiny when they assert public interest standing.5
We agree with the Court of Appeal that plaintiff‟s CEQA arguments were
appropriate for a citizen suit. As we have noted, “strict rules of standing that
might be appropriate in other contexts have no application where broad and long-
5 By disapproving Waste Management on this point, we do not suggest that
public interest standing is freely available to business interests lacking a beneficial
interest in the litigation. No party, individual or corporate, may proceed with a
mandamus petition as a matter of right under the public interest exception. As the
Waste Management court correctly observed, “Judicial recognition of citizen
standing is an exception to, rather than repudiation of, the usual requirement of a
beneficial interest. The policy underlying the exception may be outweighed by
competing considerations of a more urgent nature. (Green v. Obledo, supra, 29
Cal.3d at p. 145; see also Nowlin v. Department of Motor Vehicles (1997) 53
Cal.App.4th 1529, 1538.)” (Waste Management, supra, 79 Cal.App.4th at p.
1237.)
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term [environmental] effects are involved.” (Bozung v. Local Agency Formation
Com. (1975) 13 Cal.3d 263, 272.) We observe, however, that here it was
unnecessary to resort to the public interest exception. Plaintiff plainly possesses
the direct, substantial sort of beneficial interest required to seek a writ of mandate
under Code of Civil Procedure section 1086. Its members include manufacturers
and suppliers of plastic bags used by businesses in Manhattan Beach.6 The
ordinance‟s ban on plastic bags would have a severe and immediate effect on their
business in the city. Clearly, they have a “particular right to be preserved or
protected over and above the interest held in common with the public at large.”
(Carsten v. Psychology Examining Com., supra, 27 Cal.3d at p. 796.)
The city suggests that a plaintiff must be affected by a particular adverse
environmental impact to qualify as a beneficially interested party in a CEQA suit.
We have never so limited the scope of the beneficial interest requirement. It is not
unusual for business interests whose operations are directly affected by a
government project to raise a CEQA challenge to the government‟s environmental
analysis. (E.g., Western States Petroleum Assn. v. Superior Court (1995) 9
Cal.4th 559, 565-567; Dunn-Edwards Corp. v. Bay Area Air Quality Management
Dist. (1992) 9 Cal.App.4th 644, 649, 652.) These are not citizen suits. Such
parties are “ „in fact adversely affected by governmental action‟ ” and have
standing in their own right to challenge that action. (Carsten v. Psychology
Examining Com., supra, 27 Cal.3d at pp. 796-797.)
6 The city does not dispute plaintiff‟s associational standing. (See
Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999)
21 Cal.4th 352, 361-362; Brotherhood of Teamsters & Auto Truck Drivers v.
Unemployment Ins. Appeals Bd. (1987) 190 Cal. App. 3d 1515, 1521-1522.)
16
B. The EIR Requirement
“[A] public agency pursuing or approving a project need not prepare an
EIR unless the project may result in a „significant effect on the environment‟
(§§ 21100, subd. (a), 21151, subd. (a)), defined as a „substantial, or potentially
substantial, adverse change in the environment‟ (§ 21068). If the agency‟s initial
study of a project produces substantial evidence supporting a fair argument the
project may have significant adverse effects, the agency must (assuming the
project is not exempt from CEQA) prepare an EIR. (Cal. Code Regs., tit. 14,
§ 15064, subd. (f)(1); No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68,
75.)” (Communities for a Better Environment v. South Coast Air Quality
Management Dist. (2010) 48 Cal.4th 310, 319, fn. omitted.) 7 If, on the other
hand, “[t]here is no substantial evidence, in light of the whole record . . that the
project may have a significant effect on the environment,” the agency may adopt a
negative declaration. (§ 21080, subd. (c)(1); see also § 21082.2, subd. (a); Cal.
Code Regs., tit. 14, § 15064, subd. (f)(3); Communities for a Better Environment
v. South Coast Air Quality Management Dist., supra, 48 Cal.4th at p. 319.)8
7 The first step in CEQA analysis, of course, is whether the activity in
question amounts to a “project.” (Muzzy Ranch Co. v. Solano County Airport
Land Use Com. (2007) 41 Cal.4th 372, 380.) “A CEQA „project‟ falls into one of
three categories of „activity which may cause either a direct physical change in the
environment, or a reasonably foreseeable indirect physical change in the
environment . . . .‟ (§ 21065.)” (Sunset Sky Ranch Pilots Assn. v. County of
Sacramento (2009) 47 Cal.4th 902, 907.) In this case, the ordinance is “[a] n
activity directly undertaken by [a] public agency” under section 21065,
subdivision (a). The city has conceded at every stage of this litigation that the
ordinance qualifies as a “project” for CEQA purposes.
8 Another alternative at this stage is to determine that the project is exempt
from CEQA review. Here, city staff suggested at first that the proposed ordinance
would be exempt “under what is sometimes called the „commonsense‟ exemption,
which applies „[w]here it can be seen with certainty that there is no possibility that
(footnote continued on next page)
17
The city‟s decision to issue a negative declaration in connection with its
plastic bag ordinance is reviewed for “prejudicial abuse of discretion,” which “is
established if the agency has not proceeded in a manner required by law or if the
determination or decision is not supported by substantial evidence.” (§ 21168.5;
Communities for a Better Environment v. South Coast Air Quality Management
Dist., supra, 48 Cal.4th at p. 319.) The majority below concluded: “it can be
fairly argued based on substantial evidence in light of the whole record that the
plastic bag distribution ban may have a significant effect on the environment.”
The majority was satisfied from the various studies comparing the environmental
impacts of paper and plastic bags that a plastic bag ban was likely to lead to
increased use of paper bags, which have relatively greater negative environmental
effects including “greater nonrenewable energy and water consumption,
greenhouse gas emissions, solid waste production, and acid rain.”
The majority conceded, “[i]t may be that the city‟s population and the
number of its retail establishments using plastic bags is so small and public
concern for the environment is so high that there will be little or no increased use
of paper bags as a result of the ordinance and little or no impact on the
environment affected by the ordinance.” However, “the initial study contains no
information about the city‟s actual experience — including, by way of example
(footnote continued from previous page)
the activity in question may have a significant effect on the environment‟ ([Cal.
Code Regs., tit. 14,] § 15061, subd. (b)(3)).” (Muzzy Ranch Co. v. Solano County
Airport Land Use Com., supra, 41 Cal.4th at p. 380.) However, once plaintiff
raised objections to the ordinance, the city abandoned that idea and proceeded
instead to conduct an initial study and issue a negative declaration. (See Muzzy
Ranch, at pp. 380-381.)
18
only: the number of plastic and paper bags consumed; recycling rates; the
quantity of plastic bags disposed of in city trash; how the city disposes of its trash;
whether plastic bags are a significant portion of litter found; how, when and in
what quantities paper and plastic bags are delivered into the city; whether the city
has a landfill that would be impacted by any increased paper bag use; whether
there are recycling facilities or programs in the city or the surrounding area; and
what the likely impact will be of a campaign urging recycling and reusable bag
use.”
On this record, it is undisputed that the manufacture, transportation,
recycling, and landfill disposal of paper bags entail more negative environmental
consequences than do the same aspects of the plastic bag “life cycle.” The city
conceded as much in the initial study supporting its negative declaration. CEQA,
however, does not demand an exhaustive comparative analysis of relative
environmental detriments for every alternative course of action. It requires an EIR
only for those aspects of a project likely to have significant environmental effects.
Section 21151, subdivision (b), governing local agency preparation of EIRs,
specifies that “any significant effect on the environment shall be limited to
substantial, or potentially substantial, adverse changes in physical conditions
which exist within the area as defined in Section 21060.5.” (Italics added.)
Section 21060.5 refers to “the physical conditions which exist within the area
which will be affected by a proposed project, including land, air, water, minerals,
flora, fauna, noise, [and] objects of historic or aesthetic significance.”
When we consider the actual scale of the environmental impacts that might
follow from increased paper bag use in Manhattan Beach, instead of comparing
the global impacts of paper and plastic bags, it is plain the city acted within its
discretion when it determined that its ban on plastic bags would have no
significant effect on the environment.
19
The only strictly local impacts of the ban appear to be those related to the
transportation of paper bags, and possibly their disposal. It did not require a
detailed study to conclude that the increased vehicle traffic and related effects
stemming from the delivery of paper bags to Manhattan Beach businesses would
be minimal. Nor was it necessary for the city to attempt a thorough analysis of the
additional garbage that might result from the use of paper instead of plastic carry-
out bags. While the Court of Appeal majority faulted the city for not providing
information on whether it had a landfill that would be affected by increased paper
bag use, the initial study noted that the city “represents a small proportion of
regional landfill users.” A reasonable inference is that solid waste from
Manhattan Beach is taken to a regional landfill or landfills used by a variety of
refuse sources in the surrounding area. The city properly anticipated that there
would be no increase from those establishments already using paper bags, that
some consumers would switch from plastic to reusable bags, that some would
recycle their paper bags,9 and that the number of Manhattan Beach consumers is
small enough that the increase in the regional solid waste stream caused by
discarded paper bags would be insignificant.
The other environmental impacts reflected in the record are those that might
be felt beyond Manhattan Beach, as a result of processes associated with the
manufacture, distribution, and recycling of paper bags in general. We have noted
that the area defined by section 21060.5, that is, the area that will be affected by a
proposed project, may be greater than the area encompassed by the project itself.
9 In addition to banning plastic bags, Ordinance No. 2115 requires all paper
bags provided by establishments in the city to be recyclable “using Manhattan
Beach‟s available recycling collection programs.”
20
“ „[T]he project area does not define the relevant environment for purposes of
CEQA when a project‟s environmental effects will be felt outside the project
area.‟ [Citation.] Indeed, „the purpose of CEQA would be undermined if the
appropriate governmental agencies went forward without an awareness of the
effects a project will have on areas outside of the boundaries of the project area.‟
[Citation.]” (Muzzy Ranch Co. v. Solano County Airport Land Use Com., supra,41 Cal.4th at p. 387.)
This does not mean, however, that an agency is required to conduct an
exhaustive analysis of all conceivable impacts a project may have in areas outside
its geographical boundaries. “ „[T]hat the effects will be felt outside of the project
area . . . is one of the factors that determines the amount of detail required in any
discussion. Less detail, for example, would be required where those effects are
more indirect than effects felt within the project area, or where it [would] be
difficult to predict them with any accuracy.” (Muzzy Ranch Co. v. Solano County
Airport Land Use Com., supra, 41 Cal.4th at p. 388.) In Muzzy Ranch, we were
concerned with the level of detail required to apply the commonsense exemption
from CEQA review. However, our comments are equally pertinent to the analysis
of impacts in an initial study leading to the issuance of a negative declaration.
“Evidence appropriate to the CEQA stage in issue is all that is required.” (Ibid.)
The impacts of this project in areas outside Manhattan Beach itself are both
indirect and difficult to predict. The actual increase in paper bag use as a result of
the ordinance is necessarily uncertain, given that some percentage of local
residents may be expected to turn to the city‟s favored alternative, reusable bags.
Moreover, the city could hardly be expected to trace the provenance of all paper
bags that might be purchased by Manhattan Beach establishments, in order to
evaluate the particular impacts resulting from their manufacture. Accordingly,
under the approach we endorsed in Muzzy Ranch Co. v. Solano County Airport
21
Land Use Com., supra, 41 Cal.4th at p. 388, the city could evaluate the broader
environmental impacts of the ordinance at a reasonably high level of generality.
The city properly concluded that a ban on plastic bags in Manhattan Beach
would have only a minuscule contributive effect on the broader environmental
impacts detailed in the paper bag “life cycle” studies relied on by plaintiff. Given
the size of the city‟s population (well under 40,000) and retail sector (under 220
establishments, most of them small), the increase in paper bag production
following a local change from plastic to paper bags can only be described as
insubstantial.
As the city conceded at oral argument, the analysis would be different for a
ban on plastic bags by a larger governmental body, which might precipitate a
significant increase in paper bag consumption. In the courts below, plaintiff
referred to the cumulative impacts the Manhattan Beach ordinance might have in
conjunction with similar laws enacted or contemplated elsewhere, including bans
in San Francisco and Santa Monica, and possible bans in Oakland, Los Angeles
County, and even statewide. (See § 21083, subd. (b)(2); Environmental
Protection Information Center v. California Dept. of Forestry & Fire Protection,
supra, 44 Cal.4th at pp. 524-525; Sierra Club v. West Side Irrigation Dist. (2005)
128 Cal.App.4th 690, 700-702.) The Court of Appeal did not discuss this issue.
In any event, we note that Manhattan Beach is small enough that even the
cumulative effects of its ordinance would be negligible.10
10 For instance, plaintiff pointed out in its trial court briefing that Los Angeles
County had an estimated population in 2006 of close to 10 million. It would be
pointless to require the city to prepare an EIR on the additional impacts of paper
bag use by its fewer than 40,000 residents, and ridiculous to ask it to evaluate the
effects of a possible countywide ban before acting locally. While cumulative
impacts should not be allowed to escape review when they arise from a series of
(footnote continued on next page)
22
In sum, the Court of Appeal erred by concluding there was substantial
evidence to support a fair argument that Manhattan Beach‟s plastic bag ordinance
might significantly affect the environment. While some increase in the use of
paper bags is foreseeable, and the production and disposal of paper products is
generally associated with a variety of negative environmental impacts, no
evidence suggests that paper bag use by Manhattan Beach consumers in the wake
of a plastic bag ban would contribute to those impacts in any significant way.
It is well settled that “CEQA is to be interpreted „to afford the fullest
possible protection to the environment within the reasonable scope of the statutory
language.‟ [Citation.]” (Mountain Lion Foundation v. Fish & Game Com. (1997)
16 Cal.4th 105, 112.) As noted above, it is also established that CEQA review
includes the impacts a project may have in areas outside the boundaries of the
project itself. However, this case serves as a cautionary example of overreliance
on generic studies of “life cycle” impacts associated with a particular product.
Such studies, when properly conducted, may well be a useful guide for the
decisionmaker when a project entails substantial production or consumption of the
product. When, however, increased use of the product is an indirect and uncertain
consequence, and especially when the scale of the project is such that the increase
is plainly insignificant, the product “life cycle” must be kept in proper perspective
and not allowed to swamp the evaluation of actual impacts attributable to the
project at hand.
(footnote continued from previous page)
small-scale projects, that prospect does not appear in this case. According to
plaintiff, the movement to ban plastic bags is a broad one, active at levels of
government where an appropriately comprehensive environmental review will be
required.
23
Common sense in the CEQA domain is not restricted to the exemption
provided by the regulatory guideline discussed in Muzzy Ranch Co. v. Solano
County Airport Land Use Com., supra, 41 Cal.4th at p. 380. It is an important
consideration at all levels of CEQA review. (See, e.g., Friends of Mammoth v.
Board of Supervisors (1972) 8 Cal.3d 247, 272; Martin v. City and County of San
Francisco (2005) 135 Cal.App.4th 392, 402, citing cases.) Here, common sense
leads us to the conclusion that the environmental impacts discernible from the “life
cycles” of plastic and paper bags are not significantly implicated by a plastic bag
ban in Manhattan Beach.
DISPOSITION
We reverse the judgment of the Court of Appeal.
CORRIGAN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CROSKEY, J. *
___________________________
* Associate Justice, Court of Appeal, Second Appellate District,
Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
24
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Save the Plastic Bag Coalition v. City of Manhattan Beach
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 181 Cal.App.4th 521Rehearing Granted
__________________________________________________________________________________
Opinion No. S180720
Date Filed: July 14, 2011
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: David P. Yaffe
__________________________________________________________________________________
Counsel:
Robert V. Wadden, Jr., City Attorney, for Defendant and Appellant.
John B. Murdock for Heal the Bay as Amicus Curiae on behalf of Defendant and Appellant.
Remy, Thomas, Moose and Manley, James G. Moose, Ashle T. Crocker and Jennifer S. Holman for
Californians Against Waste as Amicus Curiae on behalf of Defendant and Appellant.
Briscoe Ivester & Bazel, Christian L. Marsh and Peter S. Prows for League of California Cities and
California State Association of Counties as Amicus Curiae on behalf of Defendant and Appellant.
Carico Johnson Toomey and William G. Benz for The Manhattan Beach Residents Association as Amicus
Curiae on behalf of Defendant and Appellant.
Stephen L. Joseph for Plaintiff and Respondent.
M. Reed Hopper and Joshua P. Thompson for Pacific Legal Foundation as Amicus Curiae on behalf of
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
James G. Moose
Remy, Thomas, Moose and Manley
455 Capitol Mall, Suite 210
Sacramento, CA 95814
(916) 443-2745
Christian L. Marsh
Briscoe Ivester & Bazel
155 Sansome Street, Seventh Floor
San Francisco, CA 94104
(415) 402-2700
Stephen L. Joseph
350 Bay Street, Suite 100-328
San Francisco, CA 94133
(415) 577-6660