The city of Bozeman could be in a legal world of hurt if it passes a proposed plastics ban on the ballot next week.
The “Bozeman Plastics Initiative” collected 6,739 signatures this year to place the measure before voters in November.
The measure specifically targets five items: food containers made of polystyrene foam, packing materials made of polystyrene foam, plastic bags, plastic straws and plastic stirrers. Straws and stirrers would only be allowed at businesses in Bozeman by customer request.
If voters approve the ban, it would theoretically take effect in May of 2025, with stiff penalties of $1,000 for a first violation, and $2,000 for a second.
But that assumes it gets over some pretty large legal hurdles.
A legal analysis obtained by Mountain States Policy Center finds the measure violates state law in numerous ways.
First, the measure's initial civil penalties are twice the maximum of $500 allowed by Montana state law.
Second, the proposal gives enforcement officers the ability to provide notice, warnings and potentially fines to not only the person committing the violation, but also potentially "the owner of the property." This puts landlords at risk of being fined for a tenant's actions.
Third, the ordinance may try to control more than just Bozeman, as it says it applies to "any other unit of local government and to those entities purchasing, acquisition and contracting practices." This would seem to violate state law, as the city cannot regulate the operations of other government agencies, such as a school district.
There is no question the proposed ordinance violates state law and is unenforceable. But even it was legally sound, it would still be poor policy.
We've previously written about the poor environmental results of banning plastics elsewhere. Nearly 20 other states have preemptions that block local plastic bag bans. The question is whether banning plastic bags and similar items is an effective way to help the environment?
The University of Georgia’s school of Forestry and Natural Resources completed a comprehensive review of California’s plastics policy, looking at plastic trash bag sales in counties with bans or fees in place, versus those without. Researchers found that small trash bag sales simply increased dramatically – by as much as 25% - in communities with a ban, indicating that consumers were not reducing their use, just getting them someplace else.
“After the regulations came into effect, consumers’ plastic bag demand switched from regulated plastic bags to unregulated bags,” researcher Yu-Kai Huang wrote.
Alternatives to plastic bags or other banned items may be even more harmful.
The United Kingdom’s Environment Agency released a report in 2011 that highlighted the carbon impact of paper, reusable plastic, and cotton bags is higher than single-use plastic bags. In fact, scientists said you’d need to reuse a cotton bag more than 130 times to have an impact on the environment.
Similarly, researchers in Demark in 2018 concluded cotton bags are far more environmentally harmful than plastic bags.
Banning plastic bags also raise sanitation concerns. Most people who carry around reusable, cloth bags do not necessarily take care to make sure the bag is clean. Some may keep the bag in their backseat or the trunk of their vehicle. Others might only wash the bag once a month. The concern about sanitation was especially high during the COVID-19 pandemic, when a number of states that had adopted plastic bag bans suspended implementation due to hygiene concerns.