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Single-use bag ban questioned under 1993 law

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Could a little-known statute put a wrench in Paonia's draft ordinance to ban single-use plastic bags?

That draft, a request by a group of citizens calling itself Sustainable North Fork Valley and written by town attorney Bo Nerlin, was first brought before trustees at the April 9 board meeting. It is currently being reviewed by the town Governmental Affairs committee.

Section 25-17-104 of the Colorado State Statutes pre-empts local governments from prohibiting the use or sale of "specific types of plastic materials or products" including single-use plastic grocery bags. The statute was passed under a 1993 house bill for "environmental protection through the promotion of disposal alternatives..." and sought to address a need "for more effective and efficient management of waste."

According to a March 7 article in the online newspaper, The Colorado Sun, due to the statute, the City of Denver has put on hold "a bill to prevent restaurants from offering plastic straws" unless requested by the customer.

Mayor Charles Stewart said he's aware of the statute, but has not had time to fully investigate it. "On its face, it appears to prohibit bag bans" like the one currently before trustees. However, said Stewart, several governmental entities in Colorado have successfully adopted single-use plastic bag bans, including Aspen, Avon, Ridgway and Telluride, which in 2011 became the first municipality to pass a ban.

Thus far, said Stewart, it appears that none of those bans has been challenged in court.

One ban was challenged by a citizens' group, but not under the 1993 statute. In 2012, the City of Aspen, implemented a ban on single-use plastic bags. The ban was challenged in court by a group of citizens alleging that a 20-cent charge for bags approved under the ban was an unconstitutional tax under the Taxpayer Bill of Rights (TABOR). In 2018, the Colorado Supreme Court upheld the ban by a 4-3 decision, stating that it's "not a tax because it offsets the costs of a municipal waste-reduction program," according to a May 22, 2018 article in The Aspen Daily News.

One thing all of the municipalities that have passed bans do have in common is that they're not statutory governments, rather they are governed under home rule charters, noted Stewart. Whether that was the determining factor in getting them passed isn't clear, said Stewart. There have been efforts to repeal the preemption section of the statute, he added, but where those efforts are now isn't immediately clear.

Considering the statute, Nerlin, who also wrote Ridgway's ordinance that was adopted last December, "will have to look fairly carefully at it," said Stewart. Based on his findings, the board can decide whether to move forward with the draft ordinance.

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