Where does the NYC “bag bill” stand?

Though it passed the City Council with a huge amount of fanfare, City and State legislators have since agreed to delay implementation of plastic bag legislation until at least February 2017.

On May 5 , 2016, the New York City council passed a bill, Intro. 0209-2014-A, requiring city stores to charge a five-cent fee for each disposable plastic bag given to a customer to carry the items he or she purchases. The bill was passed by a vote of 28 to 20, a majority reached after several exceptions to the “bag tax,” including for takeout restaurants, pharmacies and some other vendors, as well as for customers using food stamps, were written into the bill. The current bill also replaces an earlier version that would have imposed a ten cent fee.

Once in effect, the law is expected to keep keep plastic bags out of city waterways, drains, streets and public spaces. According to the bill’s sponsor, New York City spends $12.5 million annually to landfill disposable plastic bags, an amount that could be reduced if the bag fee leads to a decrease in the use of such bags. A handful of other jurisdictions have also passed laws imposing bans or fees on plastic bag use, including the state of California (however, California’s legislation is subject to a November 2016 referendum) and Hastings-on-Hudson, New York (a full ban on single-use plastic bags; paper bags can be purchased for five cents at checkout). New Jersey is considering a similar measure at the state level.

The New York City legislation imposes a fee for disposable bags that is to be kept by the retailer. The City government can pass legislation imposing a fee without state approval, while a tax (i.e., a five-cent fee to paid to the government) would need to be enacted by the state.

So what’s the holdup? Why won't plastic bag legislation take effect any time soon?

Mayor De Blasio has expressed support for the bill and has been expected to sign it into law. Under normal circumstances, when a city mayor signs a bill approved by the majority of the city council into law, the matter is generally considered settled (subsequent administrations or legislatures could amend or rescind the bill, of course, or the law could become the subject of litigation, but the law would generally go into effect unless stayed or overturned in court). However, the New York City plastic bag bill has come into the crosshairs of state legislators, who have introduced their own legislation, Assembly bill A09904 and Senate bill S07336, with the goal of blocking implementation of the New York City plastic bag legislation. Specifically, the bills would “establish[] a prohibition on the imposition of any tax, fee or local charge on carry out merchandise bags.” The bill’s sponsors and cosponsors are generally from New York City districts, and it is understood that the state bills are directly targeted at the New York City legislation.

The New York State Senate bill was passed on June 7. In response, the New York City Council agreed with the New York State Assembly to delay implementation of the City legislation from October 2016 to February 2017, giving the city and the state the opportunity to develop mutually agreeable language to amend it. The fight is playing out on the advocacy stage as well, with groups such as the New York League of Conservation Voters continuing to campaign for meaningful bag legislation and a consortium of anti-legislation players organizing around “Bag the Tax” efforts. It remains to be seen what additional amendments to the bill state legislators will want to see in order to avoid the preemptive state legislation.

For all of the fanfare with which the plastic bag legislation was ushered in in New York City, many New Yorkers have been left scratching their heads as to why the fee wouldn’t go into effect as required by the City Council bill. While the bill has enjoyed great support among some constituencies, it has also garnered a significant amount of opposition (explained in more detail in some of the City’s local newspapers), which has led Albany lawmakers to look for a way to shut it down. Until the City and the State agree on a way forward, it appears that any sort of plastic bag fee or ban will remain in limbo.

PS. For a way more entertaining read about the fight for NYC bag bill, see the New Yorker’s recent piece on advocacy efforts around the bill.