The Bag Man
California Lawyer

The Bag Man

A sole practitioner in Tiburon defends a potent symbol of our throwaway culture.

December 2012

photo by Saul Bromberger & Sandra Hoover

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Stephen L. Joseph is pacing the halls and stairways of the San Luis Obispo County Courthouse, having just wrangled a brief break and an extra 15 minutes for his closing statement from an increasingly impatient judge. Now as he wanders distractedly, he rehearses his best lines against a type of environmental ordinance that localities across the state are adopting.

"The thing is, I feel I am the true environmentalist here, because I'm only interested in the truth - solid science, solid facts," says the Tiburon-based attorney, whose native British accent is still detectable after more than three decades of U.S. citizenship.

No, Joseph is not battling over massive solar farms in delicate desert habitats. Nor is his case about erecting wind turbines in the flight paths of migratory birds. Rather, Joseph's mission is to save the plastic shopping bag from extinction.

It is, he admits, an uphill battle. Doing away with plastic bags has become a signature cause for many environmentalists, with towns in conservative Orange County standing shoulder to shoulder with progressive Marin County and staid Santa Barbara, and in lockstep with freewheeling Santa Cruz. And now San Luis Obispo wants to ban them as well.

But against this rising tide, Stephen Joseph and his Save the Plastic Bag Coalition - financed by America's plastic bag manufacturers - have stood firm.

Four years ago, the U.S. International Trade Commission estimated that Americans consume 102 billion plastic shopping bags annually. But with California alone going through 20 billion a year, that figure is probably low. Most of these bags end up in landfills, where they are notoriously slow to degrade; a portion (no one is sure how many) wash into rivers, storm drains, and oceans. Meanwhile, for all the years of talk and good intentions, state and federal data suggest that the vast majority of plastic bags never get recycled. And so the bag wars rage on.

Here in California, 32 localities have so far passed bans against plastic bags, and a good many more have similar ordinances under discussion.

But Joseph is working hard to slow this freight train down, amassing facts and figures that, he says, show how the bag-ban zealots have littered their arguments with falsehoods.

Of course, with 18 plastic bag manufacturers, resellers, and the top executives of other interested companies backing his legal efforts, Joseph can hardly be called a neutral observer. He asserts, for example, that plastic bags are 100 percent recyclable, without mentioning how low their actual recycling rate is (less than 5 percent), or that recycling centers often reject them because the thin film tangles up the machinery. He also tends to dismiss in broad strokes the extensive research that documents the toxic effects of plastic litter on our oceans and food chain. And he insists on describing a key ruling handed down by the state Supreme Court last year as a victory, even though it actually upheld a bag ban he opposed.

Back in San Luis Obispo Superior Court, the 58-year-old attorney projects a sense of moral outrage. He begs the judge to reverse a decision by the county's waste management agency to exempt its bag ban from the environmental impact report requirements of the California Environmental Quality Act. (Cal. Pub. Res. Code §§ 21000-21189.3.) "This is an end run around CEQA," Joseph declares, "and if it gets through the court of appeals, then every agency is going to say, 'This is marvelous. ... We never have to worry again about doing a single environmental study.' That is awful. That is the death of CEQA!"

But San Luis Obispo didn't start this trend. Rather, it was San Francisco, which in March of 2007 became the first city in America to ban large markets and drug stores from handing out plastic shopping bags. (See San Francisco Envtl. Code §?-1709.)

It was part of an ambitious program to build, by 2020, a zero-waste city that reuses, recycles, and composts all refuse, with nothing left over for landfills. And even though by weight plastic bags represent only about half a percent of the trash in our country, they were nevertheless an important target, says Robert Haley, San Francisco's zero-waste program manager. "You have to start somewhere," he explains. "And when you're trying to get to zero waste, every percentage point, or every half a point, matters."

When San Francisco declared its ban exempt from CEQA's requirement for a detailed environmental impact report, the plastic bag manufacturers didn't see it as a serious threat. As a result, they let the 35-day statute of limitations imposed by CEQA expire without challenge. (Cal. Pub. Res. Code §§ 21167.) Once other cities picked up on the idea, though, the industry's view changed dramatically, and that's when it turned to Joseph for help.

He was not an obvious choice. A British transplant, Joseph had pursued a relatively conventional career in Washington, D.C., first as an energy and defense lobbyist, then as an aviation lawyer and broker before he moved his family to Northern California to start a general civil practice. But in 2003 he began to use his litigating skills to mount a highly publicized campaign against coronary-clogging transfats in foods - a drive that, he says, was inspired one day by a simple question from his mother about the safety of certain ingredients.

His first target was Kraft Foods, which in short order agreed to remove the transfats from its Oreo cookies and other products. McDonald's was a different story. It actually reneged on a promise to get rid of the transfats in its french fries. But in 2005 Joseph settled with the fast food company for a cool $10.5 million (including $1.9 million in legal fees). As he now boasts: "I'm the reason that, if you must eat French Fries, McDonald's' are by far the healthiest choice."

After winning on transfats, Joseph worked for a while on a campaign to advance plastic bag recycling efforts - which, by his own account, went nowhere fast. Along the way, though, he started to investigate allegations being made against plastic bags, and he concluded that they didn't hold water.

"Environmental policy was being based on myth," he says. "I was amazed at how shoddy it all was. This wasn't science. It was a classic Madison Avenue approach. It was a negative campaign, with plastic bags unfairly and incorrectly singled out."

In 2008 Joseph and the plastic bag manufacturers founded the Save the Plastic Bag Coalition to challenge bans throughout the state. For Joseph, it quickly turned into a full-time job.

His work took him to Los Angeles, Palo Alto, and Manhattan Beach, armed with warning letters and stacks of CEQA-related comments that, he maintains, belie many of the other side's claims. One prevailing notion he finds especially irritating is that a great, plastic bag-laden garbage patch - an island of plastic bags and other trash double the size of Texas - has coalesced somewhere out in the Pacific. There is, in fact, a big problem out there, but it consists of small bits of broken-down plastic that have been concentrated by immense circular currents. No one, however, can say for sure whether plastic bags are a major source of this "chowder."

Another commonly held belief is that plastic grocery bags are made from oil. As Joseph points out, most of the ones sold in the United States derive from a chemical by-product of natural gas that otherwise would be burned as waste. (Plastic bags also can be made from naphtha, a by-product of oil refining.) Furthermore, Joseph accuses plastic-bag bashers of inflating estimates of how much plastic bag litter there is in the environment and the cost of cleaning it up. From a legal as well as environmental standpoint, however, the most crucial argument he makes is that forcing consumers to choose paper over plastic does more harm than good. And that's why he says it's so important to subject bag-ban ordinances to rigorous environmental review under CEQA.

In 2009, Palo Alto settled with Joseph by agreeing to limit its ban to just four stores, and promised to do an EIR if it ever decided to expand the scope of its ordinance. Los Angeles County also agreed to an EIR, and for good measure threw in a mandatory ten-cent fee for each paper bag grocery stores distributed.

Among the early bag banners, though, one community wouldn't cut a deal with Joseph. Manhattan Beach, a small, upscale community in Los Angeles's South Bay, fought him all the way to the California Supreme Court.

Joseph had prevailed both at trial and at the court of appeal, which ruled that Manhattan Beach was indeed obliged to do a full EIR before enacting its plastic bag ban. At least a couple of studies figured prominently here, showing that the manufacture, transport, and disposal of paper bags has a greater environmental impact than that of their plastic counterparts. Significantly, Joseph also won broad standing for corporate interests to file citizen lawsuits under CEQA.

But the Supreme Court reversed the EIR requirement on a unanimous vote. It determined that since Manhattan Beach had a population of less than 35,000, its shopping bag policies would have no meaningful impact on the environment, and therefore the ban did not require an impact report.

"[C]ommon 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," the justices wrote. (Save the Plastic Bag Coalition v. City of Manhattan Beach, 52 Cal. 4th 155, 175 (2011).)

It was widely viewed as a defeat for the plastic bag industry. But Joseph portrays it as a win, explaining that because the high court based its ruling on the size of Manhattan Beach's population, larger communities must be obligated to subject their bag bans to environmental review.

Marin County deputy counsel David L. Zaltsman is among those who scoffs at this interpretation. The passage in the Supreme Court's decision that Joseph "continuously cites" is nothing more than a footnote, Zaltsman says. What's more, it summarizes the plaintiff's position.

Another attorney who takes issue with Joseph's legal analysis is Jennie Romer, who runs the online clearinghouse and consults with cities and environmental groups. Romer, however, allows that the state Supreme Court could eventually demand EIRs from much larger cities if their ordinances promote a surge in paper bag use. This is why she advises communities to add paper bag fees to their plastic bag bans.

The idea is clearly catching on. Over the past year, almost all of the new bag bans enacted - including San Luis Obispo's - have taken this hybrid approach. Retailers like it because they get to keep the extra money (which means it's not a new tax), and environmentalists support it because it strongly encourages shoppers to bring their own reusable bags. Los Angeles County's hybrid bag ordinance, for example, in place since July 2011, led to a 70 percent reduction in the use of disposable bags, according to the California Grocers Association.

Of course, that doesn't help the plastic bag makers stay afloat, and on their behalf Joseph soldiers on. In tony Marin County he's arguing that the five-cent fee for paper bags is too paltry to drive a meaningful change in behavior. Meanwhile in Los Angeles, Joseph has demanded that the county's health department investigate whether reusing bags endangers the public's health. "Los Angeles County is moving from an era of hygienic single-use bags to a new era of dirty, contaminated reusable bags," he wrote in a demand letter. In the same letter, he cited an incident two years ago in which nine Oregon soccer players suffered nausea and diarrhea after eating cookies placed in a reusable bag that had been brought into a restroom.

Joseph has since used similar arguments citing the state's Retail Food Code to persuade two cities - Carpinteria and Santa Cruz - to drop plans to include restaurants in their plastic bag bans.

On the other hand, this fall San Francisco officials went ahead and expanded their historic bag ban to cover restaurants and other retail establishments. Their first ban, they now admit, may have led to more paper bag use, but the new ban tempers that with a ten-cent fee. In opposing this change, city officials complain, the bag industry's lawyer is attacking the solution.

Nevertheless, Joseph argues that, at least as a matter of public health, hot soups, sauces, and other spillable items are more of a safety hazard when they're carried in paper instead of plastic bags. And to illustrate the danger, he cites a 2011 case in which a Florida woman was seriously burned by soup that spilled in her car. San Francisco's expanded bag ban makes such injuries all the more likely, Joseph alleged. Never mind that the scalding soup incident Joseph refers to involved a restaurant in the Subway chain, which typically uses plastic bags for takeout.

In any event, when Joseph's complaint came before the San Francisco Superior Court in September, Judge Teri L. Jackson ruled for the city. She found that its bag ordinance was an environmental measure not governed by the food code (Save the Plastic Bag Coalition v. City and County of San Francisco, No. CPF 12-511978 (San Francisco Super. Ct. order issued Sept. 20, 2012)), and that it required no EIR. As usual, Joseph has appealed.

After Joseph's emotion-laden "death of CEQA" pronouncement in San Luis Obispo, Superior Court Judge Charles S. Crandall sits back in his big chair and nods - not necessarily in agreement, but certainly in appreciation of the attorney's eccentric passion.

The judge then clears his throat and starts to speak: "All right then, if you ..." But before he can say another word, Joseph waves his hands. "Can I just finish up here, your honor?" he interjects.

The judge blinks. "Oh, I thought that that was the finish.

"No, well, it was a good ending but ..."

Joseph shuffles some papers, then starts rattling off technical minutiae that does little to advance his case. This, as it turns out, is not the first time he has gone on too long. "I guess it's pretty clear," he says later, "that once I get started on this subject I have a hard time shutting up."

On October 1, just as the San Luis Obispo ordinance was set to take effect, Judge Crandall upheld the bag ban and derided Joseph's case as a "straw man" built out of arguments disguised as evidence and a misreading of the Supreme Court's Manhattan Beach decision. County officials' use of the CEQA exemption, he ruled, was in fact based on "substantial evidence supporting the beneficial environmental effects" of the bag ban. (Save the Plastic Bag Coalition v. San Luis Obispo Cnty. Integrated Waste Mgmt., No. CV 120078 (San Luis Obispo Super. Ct. order issued Oct. 1, 2012).)

Still, Joseph is hardly out of a job. At least not when dozens more California cities and counties are considering bag bans.

His opponents fully expect him to put up a good fight.

"The plastic bag companies are grasping at straws," says Haley, San Francisco's zero-waste czar. "But he's been successful in delaying us. That's why after eight years, we're still in court fighting about plastic bags. It's taken us this long. For Mr. Joseph, that's a win."

Edward Humes, based in Southern California, is a Pulitzer Prize-winning journalist and the author of Garbology (Avery).

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