In a Texas appeals court, people are arguing about plastic bags.
A business association in the city of Laredo has filed a suit claiming that a local ban on single-use plastic bags is illegal. They point to a passage in the state’s health and safety code from two decades ago that bars regulations to “prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law.”
A ruling against the city would force the handful of Texas cities that have enacted bans on single-use plastic bags to cease enforcement of their municipal regulations and prevent others from enacting their own restrictions. It’s an arcane dispute in many ways, but the outcome could hold significant implications for direct democracy, local control, and environmental health in the state, while setting precedent that threatens some of the more progressive laws and regulations in the country.
This fight is representative of a larger issue at its core — just exactly how much power do local governments have to enact policy? It’s a fight being waged in states all over the country, from the pre-emption of existing local minimum wage laws to workplace discrimination regulations and LGBT rights — or, in the case of North Carolina, all three.
Though the Laredo suit is being brought on by a private trade group and not the state legislature (as such cases have been in North Carolina and elsewhere), it is nonetheless complicit in the weakening of local control that has emerged as a pattern throughout the country. It’s a phenomenon the Texas legislature has embraced in both its pre-emption of municipal fracking bans last year and its likeliness to pre-empt local regulations governing rideshare services in the upcoming legislative session.
In theory, state preemption is presented an effective tool for legislatures — which trend more conservative than localities — to provide a more streamlined framework of effective governance. In recent practice, however, many of these same legislatures are undermining cities, the centers of innovation and progressive policy, and ultimately the will of the people.
In the case of Texas, the pre-emption of legislation curtailing bans on fracking as well as litigation aimed at curtailing bans on single-use plastic bags will also prove harmful to the environment.
Ultimately, this is an unsound — an undemocratic — manner in which to govern. It overrules the rights of municipalities to exercise their self-governance, stymies democratic experiments in dynamic local laboratories, and rolls back progressive legislation approved by local voters. It’s bad policy, and it’s bad governance.