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New York Ban on ‘Scourge’ of Plastic Bags Upheld by Judge (1)

Aug. 20, 2020, 7:53 PM; Updated: Aug. 20, 2020, 8:28 PM

New York’s ban on single-use plastic bags was upheld in state Supreme Court on Thursday, allowing the state to move forward with enforcement.

An association of New York City bodega owners, a Bronx grocer, and a plastic bag manufacturer in February filed suit against the state, alleging that regulations created by the state’s Department of Environmental Conservation were unconstitutional and inconsistent with the law passed in 2019.

State Supreme Court Justice Gerald W. Connolly in a decision Thursday upheld the ban, as well as the majority of the regulations.

Connolly did however, agree that the department went beyond its authority in setting the minimum thickness for acceptable bags at 10 mils, calling the action “invalid.” A mil is one-thousandth of an inch. California set its minimum thickness at 2.25 mils.

New York was the second state, after California, to pass a ban on single-use bags in an effort to cut back on one of the most visible symbols of plastic waste. Similar measures have since passed in Oregon, Vermont, Maine, Connecticut, and Delaware.

Enforcement Delays

New York’s ban includes bags provided at the checkout of grocery stores, convenience stores, and superstores such as Walmart. It doesn’t affect bags used for restaurant carryout orders or those used to package things like raw meat or produce.

The ban took effect on March 1, but enforcement was delayed by the court proceedings. The process was further prolonged due to the coronavirus pandemic.

The lawsuit was brought by Long Island-based manufacturer Poly-Pak Industries Inc.; Bronx grocer Green Earth Food Corp.; and the Bodega and Small Business Association.

The association on Thursday applauded the judge’s decision to throw out the thickness regulation, and said the state Legislature should now re-think the law entirely.

“It’s now time for state lawmakers to come up with a plan that does not penalize small businesses that are still struggling to recover from the COVID-19 pandemic,” association Secretary-Treasurer Francisco Marte said in a statement. “We need policies that benefit both businesses and the environment, not sweeping mandates that are difficult to implement and enforce.”

The state Department of Environmental Conservation said it would will release notice and direction to impacted stores and businesses regarding how it will move forward with enforcement.

DEC Commissioner Basil Seggos lauded the court decision.

“The Court’s decision is a victory and a vindication of New York State’s efforts to end the scourge of single-use plastic bags and a direct rebuke to the plastic bag manufacturers who tried to stop our law,” Seggos said in a statement.

The case is Poly-Pak Indus. v. New York State Dep’t of Envtl. Conservation, N.Y. Sup. Ct., No. 902673-20, Decision issued 8/20/20.

(Updated with comment from bodega association in the ninth and 10th paragraphs.)

To contact the reporter on this story: Keshia Clukey in Albany, N.Y. at kclukey@bloomberglaw.com

To contact the editor responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com

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