Kuby v. Arizona
On September 30, 2015, the Center filed a lawsuit on behalf of Lauren Kuby (Plaintiff), a member of the Tempe City Council, to challenge Arizona Senate Bill 1241, signed by Arizona Governor Ducey on April 13, 2015. Kuby filed this lawsuit in her individual capacity and not as a member of the Council.
Senate Bill 1241 blocks cities and towns from limiting the use of plastic bags, particularly in grocery stores as the town of Bisbee has done and which the cities of Tempe and Flagstaff were considering at the time SB 1241 was enacted. SB 1241 also prohibits cities from enacting “energy benchmarking” ordinances. Such benchmarking involves similar businesses reporting and comparing energy consumption to identify opportunities for energy efficiency and has been shown to save millions of dollars on energy bills nationwide.
Kuby, well-known for advocacy of urban sustainability practices, had gained approval from her colleagues on the Tempe City Council in the spring of 2015 to move forward with consideration of a plastic bag ordinance in Tempe. The proposed ordinance would have allowed grocers and retailers to charge a minimum of 10 cents for a paper bag should customers forget to bring a reusable bag with them into the store. Plans for moving forward with that proposal have since been shelved due to the passage of SB 1241.
Kuby explained she filed this lawsuit because, “Local control is a long-held value in Arizona and this ban on plastic bag bans hurts the ability of cities and towns to make thoughtful choices that best represent the values and ideals of their residents. Shouldn’t cities be able to manage waste without the state stepping in to override local decision-making?”
SB 1241 received national media attention during the legislative session, as many cities and states like California have been passing such ordinances to save money as well as be good environmental stewards. The ban on bans was largely criticized for taking away local control and more than 5000 people signed petitions, emailed and called Governor Ducey asking him to veto SB 1241. The plastic bag industry has thus far spent $3.2 million campaigning against the California ban.
The lawsuit asserts that SB 1241 violates the Arizona Constitution in three ways.
First, it combines multiple subjects into a single bill, which violates the single-subject provision in Article 4 of the Arizona Constitution. Single-use plastic bags and energy benchmarking have nothing in common and should have been addressed in separate bills.
Second, the bill violates the title requirement of the Arizona Constitution that requires a bill’s subject be expressed in the title. In this case, the title of the bill is “Relating to Energy Regulatory Prohibition,” which fails to provide notice that it involves prohibiting cities from regulating single-use plastic bags.
Finally, and most importantly, the lawsuit asserts that SB 1241 violates the home-rule provision of the Arizona Constitution, which prohibits the Legislature from dictating matters of local concern to charter cities in Arizona. The regulation of plastic bags is a matter of local concern because it impacts trash collection, waste management, and recycling--all of which have historically been matters under the control of Arizona cities.
A copy of the Complaint is available below.