ATHENS, Ohio — In a court filing this week, the city of Athens denied that its plastic bag ban exceeds its local authority, conflicts with state law and causes irreparable harm to vendors.
On Dec. 27, 2023, just days before the city’s ban on single-use plastic bags took effect, the Ohio Attorney General’s Office sued the city in the Athens County Court of Common Pleas. The state requested a permanent injunction to overturn the city’s plastic bag ban. Judge Patrick Lang oversees the case.
Despite the lawsuit, the city’s ban took effect Jan. 1 as established by an ordinance Athens City Council passed in May 2023. The city estimated in its answer to the state’s complaint that between 85% and 90% of Athens stores and vendors currently comply with the law.
Athens Service-Safety Director Andy Stone said his office arrived at that estimate through “staff observation” while publicizing legal changes and talking with store managers. Stone said the office has issued three informal warnings to vendors that have not switched off single-use plastic bags — amounting to education about the change. The city has not yet issued any formal warnings or fines, Stone said.
Home rule and state law
The state argues that the city’s plastic bag ban exceeds the home rule authority granted to Ohio municipalities by the state constitution to pass their own laws, because the ordinance is in direct violation of state law.
Ohio Revised Code Section 3736.021 states, “A person may use an auxiliary container for purposes of commerce or otherwise.” Under Ohio law, businesses are persons and auxiliary containers include bags — so, by the state’s reasoning, preventing businesses from using bags in commerce violates ORC 3736.021.
The city rejected this analysis, saying that even under that statute, municipalities may “enact laws and policies regarding environmentally friendly business practices.” Further, the city denies that the law referenced by the state “enshrined the right to use single-use plastic bags.”
The city also argues that ORC 3736.021 was unconstitutionally established because it was part of an appropriations bill, violating a clause in the Ohio Constitution stating that “no bill shall contain more than one subject.”
The state’s suit names Athens City Law Director Lisa Eliason and Stone as defendants in their official capacities, along with the city. The city argues that neither Eliason nor Stone are “proper parties” and that the claims against them should be dismissed.
Eliason, who wrote the city’s answer, declined to further clarify her legal arguments and said the city’s answer “speaks for itself.” The OAG’s office did not respond to a request for comment by press time.
Harm to vendors?
In its complaint, the OAG’s office says that the ban criminalizes use of plastic bags and “violates the Ohio Constitution, infringes on the rights of its citizens, and causes irreparable harm.”
The city disputes that assertion, noting that consequence for noncompliance is not a criminal penalty but an administrative fine, set by ordinance at $150. The only crime would be if a business fails to pay the fine, and a business can appeal a fine if it believes it was wrongfully penalized.
The high percentage of stores and vendors already in compliance refute the state’s claim that the ordinance causes irreparable harm to businesses, the city argues.
Additionally, the city says “the irreparable harm at issue is to the environment and the public interest. Plastic does not biodegrade, but rather breaks down into microplastics that contaminate the water, soil, and food chains.”
Athens is “no different”
In addition to rejecting the state’s legal analysis, the city said in its filing that Athens is “in no different position than other jurisdictions that have passed single-use plastic bag legislation, including, but not limited to, Cuyahoga County, the City of Bexley, and the City of Cincinnati, all of which have not been sued” by the OAG.
Cuyahoga County and Bexley both ban single-use plastic bags. Cincinnati passed an ordinance banning single-use plastic bags but does not enforce it, according to a city website. A state law prohibits fees the city’s ordinance would assess to vendors that continue to offer bags. Cuyahoga County opted not to issue fines because of the state’s efforts to outlaw plastic bag bans, while some municipalities within the county have opted out of the county’s ban.
Bexley’s policy is most similar to Athens’, though it imposes a slightly lower fee than Athens for noncompliance.
Now that Athens has filed its answer, making the case for why it, too, should be allowed to ban plastic bags, the court will hold a status conference, Eliason said.
“I would guess, this will be decided on briefs,” she added.
