City of Manhattan Beach: Plastic Bag Ban Appeal Victorious

Manhattan Beach, CA – On July 14, 2011, the California Supreme Court issued a ruling in Save the Plastic Bag Coalition v. City of Manhattan Beach (Case No. S180720), the “plastic bag” case. The City of Manhattan Beach and a group of supporters including Californians Against Waste, League of California Cities, and California State Association of Counties prevailed against the Plastic Bag Manufacturers and distributors who had challenged the City’s ban of plastic grocery bags meant to reduce the amount of plastic trash in the coastal and marine environment.

On May 4, 2011, the Supreme Court heard oral arguments in the plastic bag case. The City of Manhattan Beach was ably represented by attorneys Christian Marsh and Jim Moose. Mr. Moose argued the substantive California Environmental Quality Act (CEQA) arguments for both the City and “Friend of the Court” Californians Against Waste, while Christian Marsh, who had represented the League of California Cities and California State Association of Counties, argued the “standing” issue. The primary issue of substance was whether general life-cycle studies of plastic and paper bags by the plaintiff Save the Plastic Bag Coalition, a coalition of plastic bag manufacturers and distributers, constituted substantial evidence supporting a fair argument that the City’s narrowly tailored ordinance banning plastic bags may have significant impacts, which is the legal trigger for an Environmental Impact Report (EIR). The court agreed with the City that these studies were not sufficient to require an EIR, and thus upheld the City’s ordinance.

Said the Supreme Court: “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).”

Said Manhattan Beach Mayor Richard Montgomery, speaking on behalf of the City Council: “We are ecstatic!”

“Environmental stewardship has long been an issue on the agendas of local governments, but as we all find ourselves in the midst of these difficult times the challenges are sharper. As a coastal community, we obviously want to keep the plastic bags out of the ocean. Every rain, the storm drains and creeks bring quite a flush of debris. The capacity of the environment to take abuse is limited. It’s time for a conservation ethic. We think the right answer to the question ‘paper or plastic’ is ‘neither, I brought my own.’ We greatly appreciate the work of our supporters, and thank them for their work on this important case. Our City staff worked long and hard on this issue and together with the legal team of special counsel Jim Moose and Christian Marsh selected by retired City Attorney Lee Dolley, crafted a strong argument to present at the Supreme Court. This was a great effort between staff and the legal team; without them, we’d be nowhere on this issue. The Los Angeles City of Manhattan Beach County Board of Supervisors was in agreement with our efforts and adopted a plastic bag ban which is now in effect July 14, 2011 in unincorporated areas of the County.”

Said Retired City Attorney Lee Dolley: “Real time congratulations to Christian and Jim. Their willingness to step into such an important and difficult case with such short notice exemplifies the highest degree of professionalism on their part.

And their arguments before the Supreme Court were excellent. They stayed with the case and the arguments and did not wander into the drama of the appearance.”

The Mayor and the Members of the City Council deserve credit for “seeing it through” all the way to the top.”

About the lawyers

Christian Marsh of the Downey Brand law firm advises public and private clients on natural resource and land use matters involving the public trust doctrine, water supply and water quality, endangered species, California planning and zoning law, and the National Environmental Policy Act (NEPA) and California Environmental Quality Act (CEQA). Mr. Marsh conducts trial and appellate-level litigation in each of these areas. He represents clients on regulatory and other administrative matters pending before the U.S. Army Corps of Engineers, Fish Wildlife Service, NOAA Fisheries, Bureau of Reclamation, California Reclamation and Regional Water Quality Control Boards, Department of Fish Game, State Lands Commission, and local governments.

Mr. Marsh has been involved several key CEQA decisions. He and a former partner prevailed in the last CEQA case decided by the California Supreme Court, Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481. He has also been involved in supporting other successful decisions, including California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957; California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603; Bertani v. City of Vacaville (2005) 2005 Cal.App. Unpub. LEXIS 5552; and Santa Teresa Citizens Action Group v. City of San Jose (2003) 114 Cal.App.4th 689. Before practicing law, Mr. Marsh served as Special Assistant in the U.S. Department of the Interior, where he advised the Deputy Secretary and the Assistant Secretary for Water Science on endangered species and water policy, specifically in the Columbia River basin, the California Bay-Delta, and the U.S.-Mexico border region. Christian helped coordinate the Department’s implementation of the California Bay-Delta Accord, Central Valley Project Improvement Act, and the North American Free Trade Agreement’s Environmental Side Accord. Mr. Marsh received his undergraduate degree from University of California at Santa Cruz, with a double major in Economics and Politics. He received his law degree from University of California Hastings College of the Law, San Francisco.

Mr. Moose joined his firm (then known as Remy and Thomas, but now known as Remy, Thomas, Moose and Manley) in 1986 as an associate, became a partner in 1990, and is now senior partner with the firm. His practice focuses on land use and environmental matters, with an emphasis on issues arising under the California Environmental Quality Act (CEQA), the State Planning and Zoning Law, the National Environmental Policy Act (NEPA), the Endangered Species Act, the California Endangered Species Act, and other relevant land use and environmental statutes. He represents public agencies, project proponents, consulting firms, non-profit organizations, and individuals. He handles all phases of the land use entitlement process and permitting processes, including administrative approvals and litigation. Over the last two decades, he has also participated in drafting amendments to CEQA and the CEQA Guidelines.

Along with his partners, he is co-author of Guide to the California Environmental Quality Act, a respected legal treatise frequently cited by the appellate courts. The most recent edition was published in early 2007 and was current through early 2006. In late 2008, the California Supreme Court approvingly cited the treatise in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 139. Previous judicial opinions citing or quoting the treatise include the following: Woodward Park Homeowners Assn. v. City of Fresno (2007) 150 Cal.App.4th 683, 709-710; County of Amador v. City of Plymouth (2007) 149 Cal.App.4th 1089, 1103; Banker’s Hill, et al. v. City of San Diego (2006) 139 Cal.App.4th 249, 269; Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859, 874; Friends of the Santa Clara River v. Castaic Lake Water Agency (2002) 95 Cal.App.4th 1373, 1387; Galante Vineyards v. Monterey Peninsula Water Management District (1998) 60 Cal.App.4th 1109, 1118-1119; Mountain Lion Foundation v. Fish Game Com. (1997) 16 Cal.4th 105, 131.

With over 25 years of litigation experience in state and federal environmental cases, Mr. Moose has been involved in litigation resulting in numerous significant CEQA precedents in the Courts of Appeal and California Supreme Court. These include the following: California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957; California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412; Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490; Californians Against Waste v. California Department of Conservation (2002) 104 Cal.App.4th 317; CalBeach Advocates v. City of Solana Beach (2002) 103 Cal.App.4th 529; County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931; Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134; Stanislaus Audubon Society, Inc. v. Stanislaus County (1995) 33 Cal.App.4th 144; Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559; Sacramento County v. Local Agency Formation Commission (1992) 3 Cal.4th 903; City of Sacramento v. State Water Resources Control Board (1992) 2 Cal.App.4th 960; Citizens of Goleta Valley v. Board of Supervisors of Santa Barbara (1990) 52 Cal.3d 553; Oro Fino Gold Mining Corp. v. County of El Dorado (1990) 225 Cal.App.3d 872; Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692; Midway Orchards v. County of Butte (1990) 220 Cal.App.3d 765; Mountain Lion Coalition et al. v. California Fish and Game Commission et al. (1989) 214 Cal.App.3d 1043; Citizens for Quality Growth v. City of Mt Shasta (1988) 198

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