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Environment & Energy Report

New York’s Thick Plastic Bag Demands Vex Efforts to Reduce Waste

Dec. 10, 2019, 11:01 AM

Plastic bag makers warn they can’t make products that meet the requirements of New York’s plan to eliminate single-use plastic bags.

New York, joining California, aims to ban most single-use plastic bags under a measure that takes effect March 1, 2020. But the state’s first crack at implementing it has drawn the ire of the environmentalists and one of the law’s sponsors, who say the Department of Environmental Conservation’s proposed rules have too many loopholes even as plastics makers say they can’t meet the state’s demands.

Several states have eyed plastic bag restrictions as one way to curb plastic waste, but New York—which goes through approximately 23 billion single-use plastic bags annually—is raising eyebrows for demanding thicker reusable bags. While California set the minimum thickness for acceptable bags at 2.25 mil, New York wants its bags 10 mils thick. A mil is one-thousandth of an inch.

It’s impossible to produce plastic bags that thick, and there aren’t enough paper bags to fill the demand from the populous state, Phil Rozenski, vice president of public affairs for North Carolina-based Novolex, which manufactures paper and plastic bags, said.

Novolex, which owns seven of the 13 paper bag manufacturing facilities in the U.S., has already heard from New York retailers asking about paper bags, Rozenski said.

“They’re all going around looking for bags that just don’t exist,” he said.

Too Many Loopholes

While bagmakers warn they can’t meet the state’s demands, New York is getting hit by environmental groups and even one of the law’s sponsors for being too lenient and including too many loopholes in its proposed rules.

“The original purpose, as I understood it, was to remove as much plastic from the environment as possible, not to have waivers and a need for measuring thickness of bags,” said Assemblyman Steve Englebright (D), the bill’s Assembly sponsor and chairman of the Environmental Conservation Committee. “Just changing the law in this way, through regulation, appears to me to be an overreach.”

The DEC, in an emailed statement, said the proposed regulations clarify the law, making “minor refinements” based on feedback. However, the proposed rule still meets the goal of reducing plastic bag waste. The department can also offer exemptions.

The department’s attempt to reduce plastic bags while still giving the bag industry a path forward is likely to trigger legal battles when the rules are completed.

“The whole point of the plastic bag ban was to get rid of single-use plastic bags, and if you’re getting rid of the thinner ones but allowing the thicker ones, this is a giant step backwards for New York’s environment,” said Judith Enck, founder of Beyond Plastics, a project at Bennington College focused on reducing plastic pollution.

The law doesn’t include any reference to thickness, said Enck, former administrator of the U.S. Environmental Protection Agency’s Region 2, which includes New York. And there’s no guarantee that requiring thicker bags will mean consumers use them more than once.

“I think if the DEC finalizes these regulations, they’re very vulnerable to legal challenges,” Enck said.

Fees Show Promise

All of this could still end up back in the hands of New York lawmakers.

“This type of law, a straight ban without a mandated fee, really doesn’t make the retailers or the environmentalists happy,” said Jennie Romer, an attorney with the Surfrider Foundation, an environmental organization. “We’ve seen this play out in different types of places and the mandating fees is a big lesson that we’ve been trying to spread the word on.”

Charging fees for plastic bags is one approach that has changed customer behavior. Chicago tried a ban on single-use plastic bags that exempted thicker bags as New York is suggesting. Customers simply switched to the thicker bags, Romer said.

But bag use dropped 28% in the year after the city imposed a a 7-cent fee on all plastic and paper bags, according to a study conducted by the University of Chicago Urban Labs.

Under New York’s law, counties and cities can opt to place a 5-cent fee on paper bags, though under the proposed rules the state lawwould supersede any local ordinances already put in place.

Single-use plastic bag legislation is more complex than simply outlawing the use of plastics, said Matt Seaholm, executive director of the American Progressive Bag Alliance, which represents the plastic bag manufacturing and recycling industry.

He recommended that New York mirror successful programs in other states because bag manufacturers have already made a “significant capital investment” to comply with those laws.

“With New York, which has a large amount of the U.S. population, kind of flipping a switch and going from a largely unregulated marketplace to essentially a complete ban on any of these types of products—there’s going to be a little bit of whiplash if it’s allowed to go into effect as currently written,” Seaholm said.

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

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Andrew Childers at achilders@bloomberglaw.com

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