PHILADELPHIA — The City of Philadelphia, joined by the City of West Chester, the Township of Lower Merion, and the Borough of Narberth, today announced proactive litigation to assert their right to enact and enforce plastic bag legislation.
The suit, filed earlier today in Commonwealth Court, specifically asks the court to declare unconstitutional a measure passed on May 29, 2020 by the Pennsylvania General Assembly. That measure, an amendment to the Fiscal Code known as Act 23, prohibits local governments in Pennsylvania to “enact or enforce a law, rule, regulation or ordinance imposing a tax on or relation to the use, disposition, sale, prohibition or restriction of single-use plastics” (“Section 1706-E(d)” or “plastics preemption provision”).
“In Philadelphia and across the Commonwealth, local governments are increasingly concerned about the health and environmental effects of plastic bags,” said Mayor Jim Kenney. “Yet, once again, we face a state legislature that is focused more on tying the hands of cities and towns than on solving the actual problems facing Pennsylvania. We are finding local solutions to local problems, and this suit is important in declaring our right to do so on this and many other issues.”
The Philadelphia, West Chester, Lower Merion and Narberth suit argues that the measure is unconstitutional for several reasons. Among them is that it violates Article I, Section 27 of the Pennsylvania Constitution, which provides that “[t]he people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” The suit also argues that the manner in which the legislature passed Section 1706-E(d) of Act 23 violated other provisions of the Constitution regarding legislative procedures.
“Philadelphia, West Chester, and Narberth have duly passed important plastic bag legislation,” said Philadelphia City Solicitor Diana Cortes. “Other municipalities, like co-Plaintiff Lower Merion, wish to do same and we firmly believe that the right to safeguard the health and well-being of their residents through such legislation is guaranteed under the state Constitution. This suit seeks a Court’s affirmation that the General Assembly does not have the power to strip that away, and to do so in a way that violates vital procedural safeguards.”
Philadelphia City Council passed the Single-use Plastic Bag Ban in 2020 as a major advancement toward cleaning up Philadelphia’s streets and waterways and reducing plastic waste. After being delayed due to the City’s response to COVID-19, the legislation will now be implemented beginning July 1, 2021.
“I want to thank attorneys of the Philadelphia Law Department, and those in other supportive municipalities, for their work on this suit,” said the primary sponsor of the Philadelphia ban, First District Councilman Mark Squilla. “And I thank the advocates who worked with City Council in crafting a local law that protects our environment while safeguarding the important needs of local businesses. This is a sterling example of how local legislation can make a difference—and we are confident that Commonwealth Court will uphold our right to do so.”
The ban will affect all retail establishments of all sizes in Philadelphia that make bags available for carryout items (such as food, clothing, home goods, etc.) and/or for delivery. These businesses include establishments, indoor or outdoor, where food or other products are offered to the public for sale—including but not limited to: supermarkets, convenience stores, shops, service stations, department stores, clothing stores, restaurants, food trucks, farmers’ markets, and delivery services.
To assist businesses through this transition, the City will provide various resources during a six-month education and warning period from October 1, 2021 to April 1, 2022. This includes signage that businesses can print and hang at points of sale, a web page on phila.gov with full details, and a flyer that answers frequently asked questions about the ban. These resources will be provided in multiple languages. In addition, the City will hold virtual business information sessions through the spring and summer 2021.
Further details, including an FAQ, can be found here. To be notified when news and resources related to the plastic bag ban are released, subscribe to the Office of Sustainability’s contact list.
Councilwoman Katherine Gilmore Richardson, Councilwoman At-Large:
“I’m glad to see Philadelphia working with other municipalities to be able to enforce local laws to protect our environment. By working regionally, we are able to better demonstrate how important local laws that protect the environment are to all residents of southeastern Pennsylvania. As Chair of the Committee on the Environment, I am committed to thinking about how our entire region can work together to act on climate and reduce pollution in our communities.”
David Masur, Executive Director, PennEnvironment:
“When the General Assembly takes unconstitutional steps to implement policies that put the health of Pennsylvania’s environment and residents at risk, it’s crucial that local officials step in and defend the commonwealth’s constitution and public good. Plastic pollution is dangerous to our health and planet and it’s becoming more prevalent by the day. It would be unconscionable to do anything short of reining in waste from single-use plastics as quickly as possible.”
Logan Welde, Staff Attorney, Director of Legislative Affairs, Clean Air Council:
“Pennsylvania residents, many of whom are our members, are forced to live in an environment that is littered with plastic and Styrofoam. It is past time that action is taken to stop the constant flow of these waste products into our communities. Pennsylvanians have a right to live in an environment that is not filled with litter, and curbing our usage of plastic and Styrofoam is a start. It is unfortunate that the state must be sued in order to unburden our communities from this environmental disaster.”
Jessica O’Neill, Senior Attorney, PennFuture:
“PennFuture supports the City of Philadelphia and other municipalities that are challenging Pennsylvania’s unlawful ban on implementing plastic bag bans. State lawmakers have overreached their authority by limiting municipalities’ ability to protect their residents and the environment from the harmful impacts of plastic pollution. At a time when other states and nations are doing their part to curb the proliferation of single-use plastics, Pennsylvania’s municipalities are unable to act on their own behalf because of restrictions imposed by Harrisburg. This is unacceptable, and its well past time for our lawmakers to reexamine this issue. Until then, PennFuture will be looking for ways to further support these plaintiffs in this lawsuit.”
Maurice Sampson, Eastern Pennsylvania Director, Clean Water Action:
“Clean Water Action supports the City of Philadelphia’s lawsuit and urges its allies in the Litter Free Philly Coalition to be vocal in their support to eliminate the preemption.We must get behind Mayor Kenney in this bold action to fight plastics pollution and the litter and dumping that disproportionately impacts our City’s black and brown communities.”
Kelly Offner, Executive Director, Keep Philadelphia Beautiful:
“The benefits of reducing single-use plastic are undeniable. It’s no longer enough for us to simply educate one another about the harmful impacts of single-use plastics. We acknowledge that the amount of plastic in the ocean will soon outnumber the volume of fish and we know through data studies that plastic bags and food packaging film are the most prevalent plastic items found littered on Pennsylvania roadways (2019 Keep PA Beautiful Litter Study). This legislation sends the message that Philadelphia recognizes its role in the larger issue and that it takes the dangers of single-use plastics seriously.”
Shari Hersh, Director Department of Environmental Justice, Trash Academy Mural Arts Philadelphia:
“Trash Academy applauds this action and supports a ban on plastic bags. Plastic bags scar our neighborhoods, are not recyclable, and break down into micro plastics that penetrate every part of the environment; water, land, and air. This project of Mural Arts Philadelphia engaged over 5,000 residents in 2019, in conversations about plastic bags. Philadelphians agree we have a right to a clean city. Litter is both an environmental and racial justice issue and we have to resist being a dumping ground for cheap petrochemical products such as plastic bags. For both our environment and communities, it is our responsibility to reject single use plastics.”