ATHENS, Ohio — Athens businesses may continue providing single-use plastic bags, after an Ohio appeals court’s July 16 decision upholding a lower court ruling that the city’s plastic bag ban violates state law.
Athens City Council member Alan Swank, 4th Ward, who introduced the 2023 ordinance that sought to ban single-use plastic bags within the city, told the Independent he is “disappointed” in the outcome of the city’s case. However, he added that when Athens City Council returns from its July recess, it will have to carefully consider an appeal to the Ohio Supreme Court.
“One of the things that we’re going to have to weigh is: What cost, if any, is there to the city?” Swank said. He noted vacant city positions, the theft of more than $700,000 from the city, and the May defeat of a proposed city income tax at the polls and added, “It might be a reach, if this is going to be a tremendous expense to appeal this, to go ahead and appeal it.”
In the meantime, Athens Law Director Lisa Eliason told the Independent in a July 22 email, “We are still discussing an appeal in office.”
In the Fourth District Court of Appeals decision, the court found that a state law permits the use of plastic bags and that Athens’ ordinance was in direct conflict with that state law.
The two-sentence law states in part, “A person may use an auxiliary container for purposes of commerce or otherwise.” The state law’s definition of “auxiliary container” includes single-use plastic bags.
The city had argued that the law’s use of the word “may” meant that the city’s prohibition of plastic bags did not necessarily conflict with the statute. While a person “may” provide single-use plastic bags under the statute, the city argued, there’s nothing that says vendors must be allowed to provide the bags.
However, the appellate court found that by permitting the use of single-use plastic bags, the law was “prescribing a rule of conduct,” and therefore the Athens ordinance conflicted with the law.
Additionally, the court found that the city lacked the local authority to issue a law in conflict with that particular state statute.
“In R.C. 3736.021, the General Assembly has prioritized auxiliary containers as materials that may enter the stream of commerce to serve the general welfare of Ohio’s citizens,” according to the court’s decision and judgment entry.
“Athens’s disagreement with this decision does not separate R.C. 3736.021 from its place in Ohio’s statewide and comprehensive solid waste management scheme,” the court added.
Swank said stripping away local control would seem to conflict with the stated priorities of Ohio’s Republican-led state legislature.
“It’s interesting — if you watch the state legislature right now, they talk about wanting smaller government,” Swank said. “Yet, they want to pass laws that take the local folks’ ability to affect their environment and their safety and their way of life all away from them.”
Swank added that he is unsurprised that “in this politically charged, ideological world we currently live in,” the city’s appeal to the Ohio Fourth District Court of Appeals was defeated.
On similar grounds, Swank said he was not confident in the city’s odds at winning an appeal to the Ohio Supreme Court, given the court’s conservative makeup — something else the city will need to consider as it weighs an appeal.
An Ohio Supreme Court decision on the issue would have bearing on municipalities throughout the state.
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.
Correction: A previous version of this story referenced a single judge as having made the determination in the city’s appeal. Instead, a three-judge panel made the determination. We regret the error.
Let us know what's happening in your neck of the woods!
Get in touch and share a story!
