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New York's plastic bag ban upheld

New York's ban on single-use plastic bags has been upheld in State Supreme Court after the plastics industry challenged it, and it will now take effect in September.

The lawsuit was filed by a plastic bag manufacturer, as well as two grocery and bodega store owners. They argued that the law is unconstitutional, saying, among other things, that it unfairly gives advantages to makers of paper and reusable bags at their expense.

They say they face several obstacles in trying to obey the law, including the difficulty of obtaining paper bags, which they contend are in "short supply."

Acting Supreme Court Justice Gerald Connolly ruled against them, and in favor of the state of New York and several environmental groups, saying the higher "public purpose of reducing the use of polluting plastic bags" supersedes their complaints.

New Yorkers use an estimated 23 billion single-use bags a year, and many have ended up in landfills, in waterways and stuck in trees.

Judith Enck, a former Environmental Protection Agency regional administrator who now heads the Beyond Plastics institute at Vermont's Bennington College, said the ruling is a victory for the environment, and will have an "immediate" effect.

"When this law is fully implemented, New Yorkers will see less plastic bag pollution in their neighborhoods, in parks in rivers," she said.

The judge also struck down a provision that was not in the law originally but was created by the state Department of Environmental Conservation when it issued guidelines earlier this year on how to carry out the plastic bag ban. The agency's regulations allowed for thicker plastic bags -- 10 mils or more -- to be allowed under the new law.

Enck and other environmental groups worried that might create a loophole for plastics manufacturers to make and sell a new, thicker plastic bag to substitute for the old ones.

The judge ruled that the Legislature's language in the law is "clear and unambiguous" and bans all single-use plastic bags, regardless of their thickness. 

In a statement, the state DEC called the ruling a "vindication of New York state's efforts to end the scourge of single-use plastic bags" and said it was a "direct rebuke to the plastic bag manufacturers" who tried to stop the law.

Zachary Taylor, director of the American Recyclable Plastic Bag Alliance, in a statement, expressed disappointment with the ruling, saying that the "bag ban is still broken" and is "unworkable." He urged state lawmakers to amend the law.

It's unlikely, though, that the groups will be appealing the judge's decision.

The plastic bag manufacturers had also argued that the COVID-19 pandemic was a reason to invalidate the law, because reusable bags could carry the virus and spread it. The judge found that argument was "without merit."

Enck said that in the early days of the pandemic, there were some concerns about whether reusable bags could spread the disease. She said as more science becomes known, it's now believed that transmission of the virus through the reusable bags is unlikely.

There is some evidence, though, that the virus can live longer on plastic surfaces than on other surfaces.

"I still think it's important that people keep their reusable bags clean," said Enck, who recommends washing them with hot water or putting cloth ones in the washing machine. 

Enck also said shoppers should pack their own reusable bags if the clerk is uncomfortable doing so. She said grocery store workers are under enough stress as it is.

Many grocery stores, pharmacies and other retailers are already obeying the law and offer only paper bags. The rest will now have 30 days to fully comply with the law, which was originally to have taken effect March 1. Some localities have approved imposing a 5-cent per-bag fee on paper bags; those fees can also take effect, starting next month. 

The Department of Environmental Conservation plans to release new guidelines in the coming days.

Karen DeWitt is Capitol Bureau chief for the New York Public News Network, composed of a dozen newsrooms across the state. She has covered state government and politics for the network since 1990.