Store cashiers all over Colorado have been apologizing to customers for the nightmare that is the new state plastic bag law. But it’s not cashiers who should be apologizing. It’s the politicians who pushed this law on the rest of us.
The nightmare will only get worse. Next year you won’t even be able to buy a grocery bag. They’ll be illegal.
The plastic bag law originally was House Bill 21-1162. The Governor signed it on July 6, 2021. Most of us didn’t notice it, because the bag taxes didn’t kick in till this year—although Jon Caldara wrote a good column about it back then.
Supposedly, HB 21-1162 is about curbing “plastic pollution.” That’s just a cover. It’s actually a cynical, partisan political ploy that intrudes on your freedom and hurts the public health.
The public health problems
The public health problems are obvious: We take home food in plastic bags because they are sturdy and sanitary. If you’ve ever had re-usable bags for a while, you know they become soiled and germ-laden.
Don’t just take my word for it. During the COVID-19 pandemic, Governor Jared Polis asked cities with similar ordinances to suspend them because re-usable bags spread disease.
You might, of course, wash your re-usable bags. But then you’d be contributing to Colorado’s water shortage and adding to detergent pollution.
The public health problems go beyond that. Most of us re-use retail plastic bags as a sanitary way to dispose of household garbage. You can’t do that with cloth bags, at least without great expense. I’m old enough to remember the days before plastic bags, when people disposed of garbage either (1) in paper sacks that broke open or (2) without any sacks at all. Garbage flew everywhere.
The governor was right when he told cities to suspend their anti-plastic bag ordinances. Yet a year later he signed HB 21-1162. Go figure.
No, don’t go figure. Read more below about the politics behind this bill.
Goofy legislation
When legislation has contradictions and quirks that don’t make sense, it’s usually because it’s more about politics than the public welfare. HB 21-1162 is filled with contradictions and quirks that raise some pointed questions:
* The law’s official findings all relate to plastic. There are no legislative findings about paper. Then why is the measure targeted at paper bags as well as plastic?
* The title says it is targeted at “plastic pollution.” But the declaration of purpose speaks only of landfill space. Is the goal really to curb pollution or to save money digging landfills? As I explain below, I think it’s neither.
* The law exempts favored retailers. Why are plastic laundry bags exempt when they are larger than grocery sacks and less necessary for sanitary purposes?
* Retail food facilities in schools also are exempt. Why? Are bags in schools less polluting than bags in stores?
* Hidden in a cross reference is the fact that the only schools exempt are public schools, potentially including public universities. Yet private schools usually are on a tighter budget than public schools. Are bags in public schools less polluting than bags in private schools?
* The law bans even a reusable bag if it is manufactured from “corn or other plant sources.” But it permits bags made from hemp. Why does the law favor hemp farmers over other farmers?
* The bill has a “safety clause”—a statement that “this act is necessary for the immediate preservation of the public peace, health, or safety.” How can a 2021 law be for “immediate preservation” if it doesn’t come into any effect until 2023 and not into full effect until 2024?
* The 10-cent-per-bag charge imposed for 2023 is labeled a “fee.” But “fee” means an amount proportionate to the benefit you receive—like the fee for entering a state park. But here the “fee” is unrelated to any real cost. The retailer gets four cents a bag, even though bags cost far less. Local government gets six cents a bag without regard to how much program enforcement really costs. Incidentally, part of that sixty percent goes to fill your ears with government propaganda—oops, I mean “outreach and education.” Anyway: Why did the law’s sponsors call a “tax” a “fee?”
So what’s really going on?
The oddities I just recited (and there are others) comprise the first tip-off that HB 21-1162 is not really about the public good. The second tip-off is the partisan nature of the bill. As far as I can tell, the 28 sponsors were all Democrats.
Now add in some practical politics, and it’s not hard to figure out what is going on.
First: Politicians find ways to reward their friends and stick it to their enemies. Among Democrats’ political enemies are oilfield workers, most private schools, and most farmers. Among their friends are the public school establishment, hemp growers and everything cannabis. So they ban bags at food counters in private schools while exempting them in public schools. They ban bags made of corn and oil-based plastic while exempting those made of hemp. Neat.
Second: Politicians try to pay off—at public expense—any special interests that might oppose their plans. In this case, the special interests are the big retailers. They collect four cents each on bags for which they pay much less.
Third: The Colorado Constitution guarantees the right to vote on any measure passed by the legislature unless it has a “safety clause.” The safety clause allows the legislature to respond to an emergency that can’t wait for an election. But the sponsors of 21-1162 didn’t want us to vote on their bill, so they lied about the emergency.
Fourth: They inserted another lie—calling the bag charge a “fee” rather than a “tax”—to prevent us from voting under the Taxpayer’s Bill of Rights.
Bottom line: HB 21-1162 is not really about pollution or public health. It’s about power and cynical political games—all at our expense.
Solutions
In a just world, a court would slap down this monstrosity as abusing the safety clause rule and violating the Taxpayer’s Bill of Rights. However, the Colorado courts generally have a bad attitude where popular votes are concerned, so the best solution probably is not a lawsuit.
Here are some more realistic options:
* Sponsor an initiative petition drive to give Coloradans a chance to vote on this law. (If you are interested in helping, let me know.)
* Take advantage of the fact that sometimes bad actors are incompetent as well as bad. The sponsors of HB 21-1162 left a loophole, and we should insist that retailers use it. You see, HB 21-1162 applies only to bags provided “at the point of sale”—that is, at the cash register. Insist that retailers stack take-home plastic and paper bags for customers near the deli or dairy section. Customers can pick them up, put them in their carts, and wheel them to checkout. Perfectly legal.
* Hold accountable every politician responsible for this nightmare.
In a future column I’ll provide more facts about this law, a list of those who sponsored and voted for it, and other useful information—both about it and about them.
Robert G. Natelson, a former constitutional law professor who is Senior Fellow in Constitutional Jurisprudence at the Independence Institute, has run several successful volunteer political campaigns. He can be reached at Rob.Natelson1 at gmail dot com.
