ATHENS, Ohio — The city of Athens may not enforce its ban on single-use plastic bags because it violates state law, a local judge ruled on Aug. 28. Athens City Council at its regular meeting on Sept. 3 unanimously voted to appeal the decision.
According to the judgment entry, Athens County Court of Common Pleas Judge George McCarthy found that the city’s Chapter 11.13 (created by Athens City Council Ordinance 0-25-23 to regulate single-use plastic bags) violates state law. He issued a permanent injunction against the city, meaning the city may not enforce the ordinance.
“We’re disappointed with Judge McCarthy’s ruling,” Athens City Law Director Lisa Eliason said in an Aug. 29 email.
Before an appeal, the city may also request a stay of the court’s orders, which would stall the injunction until the appeals court reaches a verdict. In the meantime, the ordinance banning single-use plastic bags is no longer effective.
Eliason said in an email that since May 2023 the city has never fined a business for non-compliance with the ordinance. The ordinance authorized a $150 fine for business non-compliance.
The city argued that its single-use plastic bag ban was allowed under Ohio’s Home Rule provision. The state argued that Ohio Revised Code 3736.021 governs the public’s usage of single-use plastic bags — and overrides home rule.
Judge McCarthy found that the city’s prohibition on single-use plastic bags is in “direct conflict” with state law. Moreover, McCarthy found that the usage of single-use plastic bags is an issue governed by the state’s solid waste management plan.
According to the judgment entry, the city “suggested” that single-use plastic bags are not recyclable — at least locally. But the court also found that single-use plastic bags are recyclable, at least in part because of local organizations’ partnerships with NexTrex, a national organization that facilitates the collection of film plastic for recycling.
In his ruling, McCarthy wrote that “it is more likely that the City’s recycling services refuses to accept them for recycling because they may tend to jam the machines. … But the bags do not necessarily go to the landfill even though they are not accepted by Athens’ single stream recycling service. The single-use plastic bags can be reused by consumers or returned to several stores that accept such bags. And those bags can go on to be recycled.”
“The public interest of Ohioans is served by continuing to allow them to decide what bags to use,” the judgment entry also stated.
The ruling’s mention of NexTrex — along with Facebook posts and an NPR story from 2022 — could give the city grounds to overturn McCarthy’s decision, according to former common pleas court judge Tom Hodson.
“The parties agreed that the original facts were not in dispute, but then the court, on its own, added these additional allegations of fact from sources beyond the record, like Facebook,” Hodson wrote in an analysis of the decision for his Inside Courts column. “The city may argue, on appeal, that these new alleged facts were not agreed upon by the parties and may in fact be disputed — thereby, negating one of the criteria for ordering a summary judgment.”
Athens-Hocking Recycling Centers, Inc. and the Ohio Attorney General’s office did not respond to requests for comment in time for publication.
Athens ReThinks Plastics, a local volunteer group that advocated for the city’s ban, believes the ban made a difference, said member Nancy Pierce in an email.
“We see customers carrying their own bags into local stores, or using carts to carry food or merchandise to their cars, or carrying several items out by hand,” Pierce stated. “More and more people are understanding that plastics are harmful, from production to use to disposal, and that we need to reduce the use of plastics that aren’t necessary, particularly single use plastics … Our group, Athens ReThink Plastics, continues to focus on education and advocacy.”
Two local businesses that converted from plastic bags to paper (Seaman’s and College Bookstore) told WOUB they do not plan to make immediate changes to their businesses.
Beyond an appeal, “The other option would be we could repeal the ordinance, and not appeal,” City Law Director Lisa Eliason told the council Monday night. “So repeal it, or we could leave it on the books — much as it’s on the books in Bexley, or any other place, and just not enforce it at this time.”
Both Councilman Alan Swank, 4th Ward, and Pierce said at the Sept. 3 council meeting they believe the city has a good case in the court of appeals. Councilwoman Solveig Spjeldnes, 1st Ward, pointed out that “[Athens is] not the only community in Ohio that passed a plastic bag ban, but were the only one that’s been sued.”
Eliason agreed.
“That was just an issue that we raised … that we are the only jurisdiction that were sued. However, Bexley, they have theirs on the books as does Cincinnati and Cuyahoga County,” Eliason said Monday night. “However, it’s my understanding that they’re not actively enforcing theirs. We weren’t actively enforcing ours. There were no citations that were issued. Ours was more of an education. And you’re right — we were the only ones sued.”
Swank said at the council meeting that “it doesn’t take a rocket science to see how political this was.”
“It’s quite obvious, this was another example of the out-of-touch state legislature that we’re all forced to live and deal with,” Swank said Monday night.
Disclosure: Tom Hodson is secretary of the board of Southeast Ohio Independent News, the entity that publishes the Athens County Independent.
Update: This story has been updated since initial publication to include statements from Athens ReThinks Plastics. It has also been updated to include the council’s decision to appeal.
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