There is a Colorado law that bans municipalities from banning plastics, and Denver has found out that it can’t consider a ban on disposable plastic grocery bags. This may seem peculiar in a state where at least nine communities already ban single-use plastic grocery bags, which can muck up recyclers’ sorting machines and survive for years in landfills. But there it is, in Section 7 of the Colorado Revised Statutes, 25-17-104:
Local government preemption. No unit of local government shall require or prohibit the use or sale of specific types of plastic materials or products or restrict or mandate containers, packaging, or labeling for any consumer products. Page 866 of Colorado’s laws
“We’re one of 10 states that has a municipal preemption where cities are not allowed to do this,” said Jolon Clark, president of Denver City Council. “Our attorneys were like, ‘This is great that you want to talk about it, but just know that you’re not legally allowed to do that.’ ”
There’s an effort underway to press politicians to change the 1993 statute, which is crammed into the recycling section. Other attempts this session at the statehouse to put limits on throwaway plastics, like straws, food containers and those grocery bags have so far had no results.
A bill to prevent restaurants from offering plastic straws unless a customer requests one was put on hold indefinitely last week. Another bill to let local governments regulate disposable food containers has been sitting without a committee hearing for two months. But the real hurdle here may not be about recycling, but rather, preemption and whether local governments should be able to regulate recycling within city limits.
“It’s a matter of local control,” said Morgan Cullen, legislative and policy advocate at the Colorado Municipal League, adding that all eight towns that banned plastic bags are home-rule communities. “But until the courts make that determination, there’s a gray area. Even home-rule municipalities have to give credence to the possibility of a lawsuit for enacting an ordinance that would prohibit plastic bags.”
The uncertainty caused towns like Avon to limit its own desires. The town’s disposable plastic bag ban went into effect last May and tacked on a 10-cent fee for paper bags. But it excluded polystyrene foam containers, the common to-go food containers. “We elected not to move forward with it at the time because of the uncertainty of the state statute,” said Preston Neill, Avon’s deputy town manager. “… But there seems to be support for initiatives like this based on adopted plans and the collective sentiment from comments at meetings.”
Aspen’s plastic bag ban started in 2012. Retailers charge a 20-cent fee for paper bags. Then the city was sued — but not for violating the state statute. Rather, lawyers for the Colorado Union of Taxpayers Foundation argued that the fee was a tax that required a vote by residents (as required by TABOR, the Taxpayer Bill of Rights). The case went all the way to the Colorado Supreme Court, which ruled last spring that, nope, the fee is a fee. The preemption law? It never came up, said Liz O’Connell Chapman, Aspen’s waste reduction and environmental health specialist.