A law banning plastic grocery bags in some Outer Banks communities may be unconstitutional, says a prominent former lawmaker.
Apex attorney Paul “Skip” Stam, a Republican who was House speaker pro tem before retiring from the legislature in 2016, circulated a memo to General Assembly members on the constitutionality of Session Law 2009-163. In it he argues the law violates several items in the North Carolina Constitution.
The ban, enacted in 2009, allows retailers in the covered areas to use only paper bags made of recyclable material or reusable bags.
Previous attempts to remove the ban have failed, but lawmakers may try again before the end of the year.
Stam’s memo gives opponents of the ban specific reasons to overturn the law.
Article II, Section 24 of the North Carolina Constitution bars the General Assembly from enacting local resolutions relating to health or sanitation that vary from statewide laws. The General Assembly also cannot pass any act regulating trade for a specific locality.
The plastic bag ban violates these two provisions, he says.
“The act very clearly relates to sanitation and the abatement of nuisances,” Stam wrote. “[This] is clear by the findings that the act was necessary because of the high volume of tourists and the comparative impact of plastic bags on barrier islands.”
Stam says the plastic bag ban regulates trade by dictating what kind of paper bags retailers can use and requires retailers to provide incentives to customers to use reusable bags. These incentives can be cash refunds, store coupons or credit, or a reward from the retailer’s customer loyalty program.
“Yet, less than five miles away from the impacted area sits Manteo which is located in the same county and whose businesses are not covered by the ban,” Stam argues in the memo. “Doubtless those who shop and dine in Manteo can take their plastic bags with them and discard them on the same barrier island.”
Supporters of the ban say it’s needed to protect marine life, such as sea turtles. Plastic bags can strangle and suffocate marine life, and on occasion animals ingest the bags and die. But, as Stam points out, the ban fails to cover places where most sea turtles live.
Stam, using data obtained from Seaturtles.org, argues there are more sea turtles living between Cape Lookout National Seashore and Brantley Island than between Ocracoke Island and Corolla, where the ban is in place.
“While the bill started out its legislative journey as a statewide ban without violating these constitutional provisions, it had become a ‘local act’ by the time it was ratified,” Stam explained.
Stam is not alone in his opposition to the plastic bag ban. The North Carolina Retail Merchants Association also opposes the ban.
“We have been trying to figure out how to repeal it for a number of years, especially since it does not seem to be changing consumer behavior at all. Most people when they come on vacation from Delaware or Maryland … do not pack reusable bags with them. The paper bags [businesses] have to provide to customers are much more expensive than the plastic ones. It is very costly and you are not changing customer behavior,” said Andy Ellen, executive director of the retailers’ group.
“We would like people to bring reusable bags, but we think it also should be the choice of the business if they want to continue to not offer plastic bags and offer paper,” Ellen added.
Ellen agrees with Stam that the ban may be unconstitutional, and says he hopes the General Assembly will consider repealing it during an upcoming special session.
“Our legislature has done so much on regulatory reform for our industry, the retail industry. This is a major piece of regulatory reform that would do a couple of things. It would relieve some pressure on businesses because they have to post signs, pay customers, they can only use certain types of bags. We do that and we still give them the opportunity to operate their business how they would like,” Ellen said.
A representative of the Southern Environmental Law Center, which backs the ban, told Carolina Journal no one was available to review the memo.
This article was updated after initial publication to include comments from Andy Ellen of the NCRMA.