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Pennsylvania Sued over Moratorium on Plastic Bag Bans

March 19, 2021

The City of Philadelphia—along with the City of West Chester, the Township of Lower Merion, and the Borough of Narberth—filed a lawsuit on March 3, 2021, in the Commonwealth Court of Pennsylvania, challenging the state’s moratorium on municipal plastic bag bans. The plaintiffs argue that the measure pre-empting local plastic bans is unconstitutional for several reasons.  For instance, the plaintiffs argue that the measure is unconstitutional since the Pennsylvania Constitution prevents the passage of bills, other than appropriation bills, containing more than one subject and requires the titles of bills to reference the subject matter.  The Constitution also prohibits bills from being altered or amended as to change their original purpose and 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.” (See points 15 to 17 of City of Philadelphia et al. v. The Commonwealth of Pennsylvania et al., Case No. 42 MD 2021, in the Commonwealth Court of Pennsylvania.)

The moratorium on municipal plastic bag bans was passed on May 29, 2020 by the Pennsylvania General Assembly as an amendment to the Fiscal Code known as Act 23. The moratorium specifically prohibits local governments from enacting or enforcing any law, rule, regulation, or ordinance imposing a tax on or in relations to the use, disposition, sale, prohibition, or restriction of single-use plastics, such as bags, utensils, and polystyrene food containers. (See Section 1706-E(d) of Act 23.)

The Pennsylvania legislature attempted to pass a similar moratorium in 2017. However, HB 1071, which would have prohibited bans, fees, surcharges, or taxes on recyclable plastic bags supplied by a retail establishment to a purchaser of consumer goods at the point of sale in the state, was vetoed by the governor.

Despite Pennsylvania’s law prohibiting local plastic bag bans, Philadelphia plans to implement a plastic bag ban on July 1, 2021, according to a City of Philadelphia press release on the lawsuit. Philadelphia’s ban, originally passed by City Council in December 2019, had been delayed due to the city’s response to COVID-19. (More information on the timeline for implementation of Philadelphia’s plastic bag ban can be found here.)