Save the Plastic Bag Coalition v. City of Manhattan Beach

Filed 7/14/11

IN THE SUPREME COURT OF CALIFORNIA

SAVE THE PLASTIC BAG COALITION, )

)

Plaintiff and Respondent, )

) S180720

v. )

) Ct.App. 2/5 B215788

CITY OF MANHATTAN BEACH, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. BS116362

____________________________________)

Here we consider two questions: (1) What are the standing requirements

for a corporate entity to challenge a determination on the preparation of an

environmental impact report (EIR)? (2) Was the city of Manhattan Beach required

to prepare an EIR on the effects of an ordinance banning the use of plastic bags by

local businesses?

Plaintiff, a coalition of plastic bag manufacturers and distributors, claims

standing to maintain a citizen suit to vindicate the public interest in environmental

quality. The trial court and the Court of Appeal granted plaintiff standing on that

basis. Both courts rejected the city‟s argument that plaintiff had failed to make the

enhanced showing required by Waste Management of Alameda County, Inc. v.

County of Alameda (2000) 79 Cal.App.4th 1223, 1238 (Waste Management) for

corporate entities to bring a citizen suit. We agree that plaintiff would qualify for

public interest standing here, and disapprove Waste Management‟s holding that

corporations are subject to heightened scrutiny when they file citizen suits. We

also conclude that plaintiff, which represents businesses directly affected by the

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Manhattan Beach ordinance, has standing in its own right to challenge the city‟s

analysis of environmental impacts.

On the merits, the courts below ruled that the city had to prepare an EIR

before implementing a ban on plastic bags. We disagree. Substantial evidence

and common sense support the city‟s determination that its ordinance would have

no significant environmental effect. Therefore, a negative declaration was

sufficient to comply with the requirements of the California Environmental

Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.).1 Accordingly, we

reverse the Court of Appeal‟s judgment.

I. BACKGROUND

On June 3, 2008, the city manager of Manhattan Beach issued a staff report

recommending the adoption of an ordinance banning the use of “point-of-sale

plastic carry-out bags” in the city. The proposed ordinance included a finding that

CEQA did not apply because the ban would have no significant effect on the

environment (Cal. Code Regs., tit. 14, § 15061(b)(3)), and because it qualified as a

regulatory program to protect the environment (id., § 15038).

Plaintiff, describing itself as “a newly formed group of companies that will

be affected by any ordinance to ban or impose fees on plastic bags,” objected to

the proposed ordinance. 2 It claimed that the movement to ban plastic bags was

1 Further statutory references are to the Public Resources Code, unless

otherwise noted. A “negative declaration” is “a written statement briefly

describing the reasons that a proposed project will not have a significant effect on

the environment and does not require the preparation of an environmental impact

report.” (§ 21064.)

2 In its subsequent writ petition, plaintiff stated that it was “an

unincorporated association” of “plastic bag manufacturers and distributors directly

and indirectly affected and prejudiced by the Ordinance.” Some of its members,

(footnote continued on next page)

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based on misinformation and would increase the use of paper bags, with negative

environmental consequences. Plaintiff notified the city that it would sue if the

ordinance was passed without a full CEQA review.

The city then conducted an initial study evaluating the environmental

impacts of the proposed ordinance. The study noted: “Reducing the use of plastic

bags in Manhattan Beach will have only a modest positive impact on the migration

of plastic refuse into the ocean. However, as a coastal City the imposition of the

ban is likely to have some modest impact on improving water quality and

removing a potential biohazard from the marine environment.” The study

recognized that a switch from plastic to paper bags would have some negative

environmental consequences. More energy is needed to manufacture and

distribute paper bags, and more wastewater is produced in their manufacture and

recycling. However, the study concluded that the impacts of a plastic bag ban

would be less than significant, for the following reasons:

“The population of Manhattan Beach is only 33,852 according to the 2000

census. However, per capita bag usage would provide an inflated measurement of

any net increase in paper bag use since the proposed ordinance does not ban the

use of plastic bags by residents but [rather] their distribution at point of sale. Only

11.2% of the City is zoned commercial and there are only 217 licensed retail

establishments within the City which might use plastic bags. There are only two

supermarkets, three (and two future) drug stores, and one Target store known to be

high volume users of plastic shopping bags in the City which would be affected by

(footnote continued from previous page)

specifically including three corporations, supplied plastic bags to businesses in

Manhattan Beach.

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the ban. The remaining businesses tend to be smaller and lower volume and many

restaurants and most fast food outlets already use paper bags for take out orders.

“Plastic bags would not be replaced by paper bags on a one to one ratio

since paper bags have a higher capacity. One study (commissioned by the plastic

bag industry) estimates that for every 1500 plastic bags it would take 1000 paper

bags to replace them. Other studies find that paper bags may hold up to four times

the volume of plastic bags. In light of anticipated education efforts, increased

publicity (partially resulting from the subject ordinance), and the public‟s

increased concern for pollution and water quality, at least some percentage of

plastic bags are expected to be replaced by reusable bags rather than paper bags.”

The initial study observed that the ordinance would require paper bags “to

have 40% recycled content reducing landfill demand and encouraging reduced use

with increased costs for paper bags. . . . The substitution of paper bags for plastic

that does occur, although larger in mass per square foot compared to plastic,

would not significantly impact landfill capacity since a larger portion of paper

bags is recycled than plastic, substituted paper bags will be at least 40% paper

diverted from landfills, and the City of Manhattan Beach represents a small

proportion of regional landfill users.”

Based on these considerations, the initial study concluded that any increase

in the use of paper bags in Manhattan Beach would be relatively small, with

minimal impacts on energy use, air quality, water quality, vehicle traffic, and solid

waste facilities. It noted that the ordinance posed no environmental threat to fish,

wildlife, plant communities, historical resources, or human beings. On the other

hand, it would decrease the prevalence of plastic bag litter, both in the city itself

and in the ocean. Therefore, the study recommended adoption of a negative

declaration finding that the ordinance could not have a significant effect on the

environment.

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Plaintiff again objected and threatened litigation if the ordinance was

adopted. Plaintiff referred to two studies, one prepared in 2005 by the Scottish

government and one issued in 2008 by the editors of an on-line newsletter, the Use

Less Stuff (ULS) Report. Both concluded that the “life cycle” of paper bags,

including their manufacture, transport, and disposal, has a greater environmental

impact than the “life cycle” of plastic bags. Plaintiff contended this evidence

established a reasonable possibility that increased use of paper bags as a result of

the proposed ordinance would have a significant negative effect on the

environment, requiring the preparation of a full EIR.

On July 1, 2008, the city issued another staff report addressing the “life

cycle” studies. In addition to the Scottish and ULS studies, city staff had reviewed

a Washington Post report; a 1990 study by Franklin Associates, Ltd.; an analysis

conducted by the Fund for Research into Industrial Development, Growth and

Equity; and a 2007 report by Boustead Consulting & Associates Ltd. The staff

report also discussed a comparative analysis of bag “life cycle” studies prepared

by the South African Department of Trade and Industry. The report noted that

varying assumptions were employed from study to study, and that “differing

results from the [studies] could be selectively used to lend support to proponents

of either plastic or paper bags.” The South African analysis had concluded that

“life cycle” studies were “sensitive to and limited by factors such as scope,

objectivity, geography, climate, and energy sources,” and “can be constructed to

carry a specific message by carefully selecting the impacts to examine.” City staff

recommended adopting the proposed ordinance, and embarking on “an aggressive

education and outreach program to inform our residential and business community

of the ban and to promote the use of reusable bags.”

The Manhattan Beach City Council adopted ordinance No. 2115 on July

15, 2008. The council‟s findings are set forth in section 1 of the ordinance:

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“A. As a coastal city Manhattan Beach has a strong interest in protecting

the marine environment an element which contributes to the unique quality of life

in the City.

“B. Plastic and paper bags each have negative impacts on the environment.

It is well known that paper bags require more energy to manufacture and recycle

and generate effluent during these processes. It is also known that paper bags are

bulkier and heavier than plastic bags.

“C. However a primary and significant problem with plastic bags is that

they do not biodegrade and are extremely light and easily caught in the wind. In a

coastal city like Manhattan Beach even plastic bags which are properly discarded

can find their way into the marine environment where they do not break down and

essentially remain indefinitely.

“D. The Pacific Ocean contains a huge accumulation of debris known as

the „Great Pacific Garbage Patch‟ which consists mostly of plastic debris. Some

scientists estimate the density of plastic in this garbage patch as one million pieces

of plastic per square mile. While plastic does not bio-degrade it does „photo-

degrade‟ breaking down into smaller pieces which can make their way into the

food chain [via] such animals as jellyfish.

“E. While the exact numbers are unknown there are many reported

instances of marine animals being injured or dying from ingesting or choking on

plastic debris in the ocean. It is reasonable to conclude from such information that

the presence of plastic debris in the ocean provides a hazard for marine life.

“F. Because there is a strong possibility that plastic bags discarded in

Manhattan Beach can end up in the ocean where they will last indefinitely and

create an aesthetic blight and potential hazard to marine life (and paper bags will

not do so because they biodegrade and are less likely to be blown out to sea) it is

in the best interests of the public health, safety and welfare to adopt the proposed

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ban on distribution of plastic bags at point of sale within the boundaries of the City

of Manhattan Beach.

“G. The City Council of the City of Manhattan Beach conducted a noticed

public hearing regarding the project at their regular scheduled meeting of July 1,

2008. The public hearing was advertised pursuant to applicable law and testimony

was invited and received.

“H. An Initial Environmental Study was prepared in compliance with the

provisions of the California Environmental Quality Act. Based upon this study it

was determined that the project is not an action involving any significant impacts

upon the environment, and a Negative Declaration was prepared and is hereby

adopted.

“I. The proposed amendments will have no negative impact on Fish and

Game resources pursuant to Section 21089(b) of the Public Resources Code.”

(City of Manhattan Beach Ord. No. 2115, § 1.)

The ordinance provides: “No Affected Retail Establishment, Restaurant,

Vendor or Non-Profit Vendor shall provide Plastic Carry-Out Bags to customers at

the point of sale. Reusable Bags and Recyclable Paper Bags are allowed

alternatives.” (City of Manhattan Beach Ord. No. 2115, § 2(b)(A).) “Recyclable”

is defined as: “material that can be sorted, cleansed, and reconstituted using

Manhattan Beach‟s available recycling collection programs.” (Id., § 2(a).) The

ordinance also states: “Affected Retail Establishments are strongly encouraged to

provide incentives for the use of Reusable Bags through education and through

credits or rebates for customers that use Reusable Bags at the point of sale for the

purpose of carrying away goods.” (Id., § 2(b)(C).)

On August 12, 2008, plaintiff petitioned for a writ of mandate to bar

enforcement of the ordinance until the city prepared an EIR. Plaintiff claimed that

public rights were at stake, and that its “objective in bringing this action [was] that

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of an interested citizen seeking to procure enforcement of . . . public duties.” The

city responded that plaintiff lacked standing to bring a citizen suit under Waste

Management, supra, 79 Cal.App.4th 1223, because corporations are not “citizens”

and plaintiff was seeking to advance the commercial and competitive interests of

its members. The city also argued that plaintiff had failed to show that the

ordinance would have any substantial impact on the environment.

The trial court granted the writ. It found that plaintiff had standing because

it was not a “for-profit corporation that is seeking a commercial advantage over a

specific competitor,” and because it had raised a “genuine environmental issue:

whether the banning of plastic bags, and the consequent increase in the use of

paper bags, will increase, rather than decrease, injury to the environment.” The

court further concluded that the evidence in the record supported a fair argument

that the ban would increase environmental damage, so that an EIR was required.

The Court of Appeal affirmed, in a split opinion. On the standing question,

the majority decided that plaintiff was qualified to pursue its action under the

“public right/public duty” exception to the requirement that a mandamus petition

be brought by a “beneficially interested” party. (Green v. Obledo (1981) 29

Cal.3d 126, 145; Code Civ. Proc., § 1086.) The majority reasoned that plaintiff

was not asserting a commercial or purely competitive interest, and should be

allowed to seek enforcement of the city‟s public duty to prepare an EIR on the

effects of the ordinance. On the merits, the majority held that plaintiff had

submitted substantial evidence to support a fair argument that the ban would have

significant environmental impacts.

The dissent did not address the standing issue, but argued that CEQA

requirements would be stretched to the point of absurdity if a small city were

required to prepare an EIR on the effects of increased paper use that might result

from a ban on the distribution of plastic bags. The dissent concluded that the “life

8

cycle” studies on the global environmental effects of paper production did not

provide substantial evidence of any environmental harm caused by the Manhattan

Beach ordinance.

We granted the city‟s petition for review.

II. DISCUSSION

A. Standing

As a general rule, a party must be “beneficially interested” to seek a writ of

mandate. (Code Civ. Proc., § 1086.) “The requirement that a petitioner be

„beneficially interested‟ has been generally interpreted to mean that one may

obtain the writ only if the person has some special interest to be served or some

particular right to be preserved or protected over and above the interest held in

common with the public at large. [Citations.] As Professor Davis states the rule:

„One who is in fact adversely affected by governmental action should have

standing to challenge that action if it is judicially reviewable.‟ (Davis, 3

Administrative Law Treatise (1958) p. 291.)” (Carsten v. Psychology Examining

Com. (1980) 27 Cal.3d 793, 796-797.) The beneficial interest must be direct and

substantial. (Parker v. Bowron (1953) 40 Cal.2d 344, 351; Braude v. City of Los

Angeles (1990) 226 Cal. App. 3d 83, 87; 8 Witkin, Cal. Procedure (5th ed. 2008)

Extraordinary Writs, § 75, p. 956.)

Nevertheless, “ „where the question is one of public right and the object of

the mandamus is to procure the enforcement of a public duty, the [petitioner] need

not show that he has any legal or special interest in the result, since it is sufficient

that he is interested as a citizen in having the laws executed and the duty in

question enforced.‟ ” (Bd. of Soc. Welfare v. County of L.A. (1945) 27 Cal.2d 98,

100-101.) This “ „public right/public duty‟ exception to the requirement of

beneficial interest for a writ of mandate” “promotes the policy of guaranteeing

citizens the opportunity to ensure that no governmental body impairs or defeats the

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purpose of legislation establishing a public right.” (Green v. Obledo, supra, 29

Cal.3d at pp. 145, 144; see also Environmental Protection Information Center v.

California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 479.) We

refer to this variety of standing as “public interest standing.” (See Dix v. Superior

Court (1991) 53 Cal.3d 442, 453.)

Here, plaintiff claims public interest standing to pursue its CEQA action.

The city, relying on Waste Management, supra, 79 Cal.App.4th 1223, argues that

plaintiff is not a “citizen” and has not demonstrated a genuine and continuing

environmental concern sufficient to support public interest standing. In Waste

Management, a landfill operator obtained a writ of mandate directing that permits

issued to a competing operator be set aside and not reissued until the

environmental effects of the competitor‟s operations were reviewed under CEQA.

(Waste Management, supra, 79 Cal.App.4th at p. 1228.) The Court of Appeal

reversed, concluding that the plaintiff lacked standing.

The Waste Management court first held that the plaintiff did not have the

beneficial interest required for a writ of mandate because it asserted only a

commercial and competitive interest. The plaintiff‟s grievance was that it had

been required to undergo expensive CEQA review in a comparable permitting

process, and would suffer economic injury if its competitor escaped such costs of

compliance. The court ruled that this injury was not within the “zone of interests”

protected by CEQA, and thus was too indirect to establish the requisite beneficial

interest. (Waste Management, supra, 79 Cal.App.4th at p. 1235.)3

3 The Waste Management court first declared that an interest within the

regulated zone is a second prong of the beneficial interest test. The court

subsequently acknowledged that the “zone of interests” standard is a federal rule

of standing, but suggested it is implicitly included within California‟s requirement

(footnote continued on next page)

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The court then considered whether the plaintiff qualified for public interest

standing. It observed that this exception to the beneficial interest requirement is

meant to give citizens an opportunity to ensure the enforcement of public rights

and duties. The plaintiff, however, was a corporation, and corporations are not

generally regarded as “citizens.” (Waste Management, supra, 79 Cal.App.4th at p.

1237.) Reasoning that corporations are typically motivated by corporate interests

rather than the interests of citizenship, the court decided that when a corporation

claims public interest standing it must “demonstrate it should be accorded the

attributes of a citizen litigant.” (Id. at p. 1238.) “[W]hen a nonhuman entity

claims the right to pursue a citizen suit, the issue must be resolved in light of the

particular circumstances presented, including the strength of the nexus between

the artificial entity and human beings and the context in which the dispute arises.”

(Ibid.) The court suggested the following factors for consideration: whether the

corporation has shown a continuing interest in or commitment to the public right

(footnote continued from previous page)

that the plaintiff‟s interest in enforcement must be a direct one. (Waste

Management, supra, 79 Cal.App.4th at p. 1233-1234.) We have not adopted this

federal standing doctrine for use in California courts. Its application in federal

courts has not been entirely uniform. (Compare, e.g., Nevada Land Action Assn. v.

U.S. Forest Service (9th Cir. 1993) 8 F.3d 713, 716 [plaintiff suffering only

economic injury has no interest within “zone” protected by NEPA] with

Snoqualmie Indian Tribe v. FERC (9th Cir. 2008) 545 F.3d 1207, 1216-1217

[party with direct economic interest in regulatory action is not subject to “zone of

interest” requirement].)

We reiterate our recent admonition that “[t]here are sound reasons to be

cautious in borrowing federal standing concepts, born of perceived constitutional

necessity, and extending them to state court actions where no similar concerns

apply.” (Kwikset Corp. v. Superior Court (2011) 51 Cal. 4th 310, 322, fn. 5; see

also Environmental Protection Information Center v. Department of Forestry &

Fire Protection (1996) 43 Cal.App.4th 1011, 1020.)

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being asserted; whether it represents individuals who would be beneficially

interested in the action; whether individuals who are beneficially interested would

find it difficult or impossible to seek vindication of their own rights; and whether

prosecution of the action as a citizen suit by a corporation would conflict with

other competing legislative policies. (Ibid.)

In the case before us, the Court of Appeal cited Waste Management but did

not hold plaintiff to the special showing required by that decision. Though

plaintiff is an association representing corporate entities, the court simply decided

that plaintiff‟s interest was not purely commercial and competitive, observed that

“maintaining a quality environment is a matter of statewide concern,” and

concluded that public interest standing was available to seek enforcement of the

city‟s duty to prepare an EIR weighing the impacts of a ban on plastic bags.

We agree with the Court of Appeal that plaintiff‟s commercial interests

were not an impediment to its standing here. Further, we approve the court‟s

implicit rejection of the Waste Management rule holding corporations to a higher

standard in qualifying for public interest standing. Only one other Court of

Appeal has considered the details of the Waste Management factors when

determining whether a corporation has standing to bring a citizen suit. (Regency

Outdoor Advertising, Inc. v. City of West Hollywood (2007) 153 Cal.App.4th 825,

832-833.)4 A more cursory approach was taken in Burrtec Waste Industries, Inc.

v. City of Colton (2002) 97 Cal.App.4th 1133, a case like Waste Management that

4 In Imagistics Internat., Inc. v. Department of General Services (2007) 150

Cal.App.4th 581, the Waste Management Court of Appeal held that if the Waste

Management standards were applied to the instant corporate plaintiff, they would

not support its claim of standing to bring a taxpayer action. (Imagistics, at pp.

593-594.)

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involved competing waste disposal companies. The Burrtec court reasoned that

the plaintiff‟s corporate status did not affect its right to seek redress for the city‟s

failure to provide the public notice required by CEQA before adopting a negative

declaration for a competitor‟s conditional use permit. (Id. at pp. 1138-1139.) The

court then summarily noted that the plaintiff was qualified to bring a citizen suit

under the Waste Management criteria because it allegedly “encourage[d] and

monitor[ed] environmental compliance, including CEQA determinations, by itself

and other waste companies in Southern California.” (Id. at p. 1139.)

In other cases where corporate plaintiffs have asserted public interest

standing, the Courts of Appeal have done what the court below did here: referred

to Waste Management but ignored the criteria it would impose on corporate

entities. (Urban Habitat Program v. City of Pleasanton (2008) 164 Cal.App.4th

1561, 1581 [nonprofit corporation had standing in citizen suit challenging housing

regulations]; Marshall v. Pasadena Unified School Dist. (2004) 119 Cal.App.4th

1241, 1252 [contractor‟s corporate status did not bar it from joining citizen suit].)

As these courts have recognized, the fact that a corporation is not technically a

“citizen” for most purposes (see 9 Witkin, Summary of Cal. Law (10th ed. 2005)

Corporations, § 1, p. 776) does not necessarily affect its standing to pursue a

“citizen suit.”

The term “citizen” in this context is descriptive, not prescriptive. It reflects

an understanding that the action is undertaken to further the public interest and is

not limited to the plaintiff‟s private concerns. Entities that are not technically

“citizens” regularly bring citizen suits. (E.g., Common Cause v. Board of

Supervisors (1989) 49 Cal.3d 432, 439; Urban Habitat Program v. City of

Pleasanton, supra, 164 Cal.App.4th at p. 1581; see 8 Witkin, Cal. Procedure,

supra, Extraordinary Writs, § 85, pp. 970-973, citing cases.) Absent compelling

policy reasons to the contrary, it would seem that corporate entities should be as

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free as natural persons to litigate in the public interest. (See Green v. Obledo,

supra, 29 Cal.3d at p. 145 [public interest exception “may be outweighed in a

proper case by competing considerations of a more urgent nature”].)

The Waste Management court found such a policy reason in the notion that

“it generally is to be expected that a corporation will act out of a concern for what

is expedient for the attainment of corporate purposes (see Marsili v. Pacific Gas &

Elec. Co. (1975) 51 Cal.App.3d 313, 322-325), rather than by virtue of the

neutrality of citizenship (see Carsten v. Psychology Examining Com., supra, 27

Cal. 3d at p. 799; Laidlaw Environmental Services, Inc., Local Assessment Com. v.

County of Kern [(1996)] 44 Cal.App.4th [346,] 354).” (Waste Management,

supra, 79 Cal.App.4th at p. 1238.) This presumption is overbroad. Corporate

purposes are not necessarily antithetical to the public interest. Furthermore, the

Waste Management restriction on public interest standing applies to all sorts of

citizen suits by corporate entities, even those undertaken to enforce public rights

and duties in areas where corporations have particular expertise and thus may have

an enhanced understanding of the public interests at stake.

The Carsten court‟s reference to “the neutrality of citizenship” was a

rhetorical flourish designed to highlight the fact that the plaintiff in that case was a

member of an administrative board who disagreed with a board decision. Thus,

her challenge to the decision was motivated by interests arising from her service

on the board, rather than by broader public concerns. (Carsten v. Psychology

Examining Com., supra, 27 Cal.3d at p. 799; see also Laidlaw Environmental

Services, Inc., Local Assessment Com. v. County of Kern, supra, 44 Cal.App.4th at

p. 354 [members of local assessment committee lacked public interest standing to

challenge decisions of agency that appointed them]; Braude v. City of Los Angeles,

supra, 226 Cal.App.3d at p. 91 [city council member lacked public interest

standing to raise CEQA challenge to council‟s approval of project].) Carsten did

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not suggest that neutrality is a necessary prerequisite for public interest standing;

indeed, truly neutral parties are unlikely to bring citizen suits. “The purpose of a

standing requirement is to ensure that the courts will decide only actual

controversies between parties with a sufficient interest in the subject matter of the

dispute to press their case with vigor.” (Common Cause v. Board of Supervisors,

supra, 49 Cal.3d at p. 439, discussing public interest standing.)

The problem the Waste Management court sought to address with its

sweeping limitation on corporate public interest standing was a discrete one: an

attempt to use CEQA to impose regulatory burdens on a business competitor, with

no demonstrable concern for protecting the environment. Such an attempt would

be equally improper if launched by an individual. We disapprove Waste

Management of Alameda County, Inc. v. County of Alameda, supra, 79

Cal.App.4th 1223, to the extent it held that corporate parties are routinely subject

to heightened scrutiny when they assert public interest standing.5

We agree with the Court of Appeal that plaintiff‟s CEQA arguments were

appropriate for a citizen suit. As we have noted, “strict rules of standing that

might be appropriate in other contexts have no application where broad and long-

5 By disapproving Waste Management on this point, we do not suggest that

public interest standing is freely available to business interests lacking a beneficial

interest in the litigation. No party, individual or corporate, may proceed with a

mandamus petition as a matter of right under the public interest exception. As the

Waste Management court correctly observed, “Judicial recognition of citizen

standing is an exception to, rather than repudiation of, the usual requirement of a

beneficial interest. The policy underlying the exception may be outweighed by

competing considerations of a more urgent nature. (Green v. Obledo, supra, 29

Cal.3d at p. 145; see also Nowlin v. Department of Motor Vehicles (1997) 53

Cal.App.4th 1529, 1538.)” (Waste Management, supra, 79 Cal.App.4th at p.

1237.)

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term [environmental] effects are involved.” (Bozung v. Local Agency Formation

Com. (1975) 13 Cal.3d 263, 272.) We observe, however, that here it was

unnecessary to resort to the public interest exception. Plaintiff plainly possesses

the direct, substantial sort of beneficial interest required to seek a writ of mandate

under Code of Civil Procedure section 1086. Its members include manufacturers

and suppliers of plastic bags used by businesses in Manhattan Beach.6 The

ordinance‟s ban on plastic bags would have a severe and immediate effect on their

business in the city. Clearly, they have a “particular right to be preserved or

protected over and above the interest held in common with the public at large.”

(Carsten v. Psychology Examining Com., supra, 27 Cal.3d at p. 796.)

The city suggests that a plaintiff must be affected by a particular adverse

environmental impact to qualify as a beneficially interested party in a CEQA suit.

We have never so limited the scope of the beneficial interest requirement. It is not

unusual for business interests whose operations are directly affected by a

government project to raise a CEQA challenge to the government‟s environmental

analysis. (E.g., Western States Petroleum Assn. v. Superior Court (1995) 9

Cal.4th 559, 565-567; Dunn-Edwards Corp. v. Bay Area Air Quality Management

Dist. (1992) 9 Cal.App.4th 644, 649, 652.) These are not citizen suits. Such

parties are “ „in fact adversely affected by governmental action‟ ” and have

standing in their own right to challenge that action. (Carsten v. Psychology

Examining Com., supra, 27 Cal.3d at pp. 796-797.)

6 The city does not dispute plaintiff‟s associational standing. (See

Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999)

21 Cal.4th 352, 361-362; Brotherhood of Teamsters & Auto Truck Drivers v.

Unemployment Ins. Appeals Bd. (1987) 190 Cal. App. 3d 1515, 1521-1522.)

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B. The EIR Requirement

“[A] public agency pursuing or approving a project need not prepare an

EIR unless the project may result in a „significant effect on the environment‟

(§§ 21100, subd. (a), 21151, subd. (a)), defined as a „substantial, or potentially

substantial, adverse change in the environment‟ (§ 21068). If the agency‟s initial

study of a project produces substantial evidence supporting a fair argument the

project may have significant adverse effects, the agency must (assuming the

project is not exempt from CEQA) prepare an EIR. (Cal. Code Regs., tit. 14,

§ 15064, subd. (f)(1); No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68,

75.)” (Communities for a Better Environment v. South Coast Air Quality

Management Dist. (2010) 48 Cal.4th 310, 319, fn. omitted.) 7 If, on the other

hand, “[t]here is no substantial evidence, in light of the whole record . . that the

project may have a significant effect on the environment,” the agency may adopt a

negative declaration. (§ 21080, subd. (c)(1); see also § 21082.2, subd. (a); Cal.

Code Regs., tit. 14, § 15064, subd. (f)(3); Communities for a Better Environment

v. South Coast Air Quality Management Dist., supra, 48 Cal.4th at p. 319.)8

7 The first step in CEQA analysis, of course, is whether the activity in

question amounts to a “project.” (Muzzy Ranch Co. v. Solano County Airport

Land Use Com. (2007) 41 Cal.4th 372, 380.) “A CEQA „project‟ falls into one of

three categories of „activity which may cause either a direct physical change in the

environment, or a reasonably foreseeable indirect physical change in the

environment . . . .‟ (§ 21065.)” (Sunset Sky Ranch Pilots Assn. v. County of

Sacramento (2009) 47 Cal.4th 902, 907.) In this case, the ordinance is “[a] n

activity directly undertaken by [a] public agency” under section 21065,

subdivision (a). The city has conceded at every stage of this litigation that the

ordinance qualifies as a “project” for CEQA purposes.

8 Another alternative at this stage is to determine that the project is exempt

from CEQA review. Here, city staff suggested at first that the proposed ordinance

would be exempt “under what is sometimes called the „commonsense‟ exemption,

which applies „[w]here it can be seen with certainty that there is no possibility that

(footnote continued on next page)

17

The city‟s decision to issue a negative declaration in connection with its

plastic bag ordinance is reviewed for “prejudicial abuse of discretion,” which “is

established if the agency has not proceeded in a manner required by law or if the

determination or decision is not supported by substantial evidence.” (§ 21168.5;

Communities for a Better Environment v. South Coast Air Quality Management

Dist., supra, 48 Cal.4th at p. 319.) The majority below concluded: “it can be

fairly argued based on substantial evidence in light of the whole record that the

plastic bag distribution ban may have a significant effect on the environment.”

The majority was satisfied from the various studies comparing the environmental

impacts of paper and plastic bags that a plastic bag ban was likely to lead to

increased use of paper bags, which have relatively greater negative environmental

effects including “greater nonrenewable energy and water consumption,

greenhouse gas emissions, solid waste production, and acid rain.”

The majority conceded, “[i]t may be that the city‟s population and the

number of its retail establishments using plastic bags is so small and public

concern for the environment is so high that there will be little or no increased use

of paper bags as a result of the ordinance and little or no impact on the

environment affected by the ordinance.” However, “the initial study contains no

information about the city‟s actual experience — including, by way of example

(footnote continued from previous page)

the activity in question may have a significant effect on the environment‟ ([Cal.

Code Regs., tit. 14,] § 15061, subd. (b)(3)).” (Muzzy Ranch Co. v. Solano County

Airport Land Use Com., supra, 41 Cal.4th at p. 380.) However, once plaintiff

raised objections to the ordinance, the city abandoned that idea and proceeded

instead to conduct an initial study and issue a negative declaration. (See Muzzy

Ranch, at pp. 380-381.)

18

only: the number of plastic and paper bags consumed; recycling rates; the

quantity of plastic bags disposed of in city trash; how the city disposes of its trash;

whether plastic bags are a significant portion of litter found; how, when and in

what quantities paper and plastic bags are delivered into the city; whether the city

has a landfill that would be impacted by any increased paper bag use; whether

there are recycling facilities or programs in the city or the surrounding area; and

what the likely impact will be of a campaign urging recycling and reusable bag

use.”

On this record, it is undisputed that the manufacture, transportation,

recycling, and landfill disposal of paper bags entail more negative environmental

consequences than do the same aspects of the plastic bag “life cycle.” The city

conceded as much in the initial study supporting its negative declaration. CEQA,

however, does not demand an exhaustive comparative analysis of relative

environmental detriments for every alternative course of action. It requires an EIR

only for those aspects of a project likely to have significant environmental effects.

Section 21151, subdivision (b), governing local agency preparation of EIRs,

specifies that “any significant effect on the environment shall be limited to

substantial, or potentially substantial, adverse changes in physical conditions

which exist within the area as defined in Section 21060.5.” (Italics added.)

Section 21060.5 refers to “the physical conditions which exist within the area

which will be affected by a proposed project, including land, air, water, minerals,

flora, fauna, noise, [and] objects of historic or aesthetic significance.”

When we consider the actual scale of the environmental impacts that might

follow from increased paper bag use in Manhattan Beach, instead of comparing

the global impacts of paper and plastic bags, it is plain the city acted within its

discretion when it determined that its ban on plastic bags would have no

significant effect on the environment.

19

The only strictly local impacts of the ban appear to be those related to the

transportation of paper bags, and possibly their disposal. It did not require a

detailed study to conclude that the increased vehicle traffic and related effects

stemming from the delivery of paper bags to Manhattan Beach businesses would

be minimal. Nor was it necessary for the city to attempt a thorough analysis of the

additional garbage that might result from the use of paper instead of plastic carry-

out bags. While the Court of Appeal majority faulted the city for not providing

information on whether it had a landfill that would be affected by increased paper

bag use, the initial study noted that the city “represents a small proportion of

regional landfill users.” A reasonable inference is that solid waste from

Manhattan Beach is taken to a regional landfill or landfills used by a variety of

refuse sources in the surrounding area. The city properly anticipated that there

would be no increase from those establishments already using paper bags, that

some consumers would switch from plastic to reusable bags, that some would

recycle their paper bags,9 and that the number of Manhattan Beach consumers is

small enough that the increase in the regional solid waste stream caused by

discarded paper bags would be insignificant.

The other environmental impacts reflected in the record are those that might

be felt beyond Manhattan Beach, as a result of processes associated with the

manufacture, distribution, and recycling of paper bags in general. We have noted

that the area defined by section 21060.5, that is, the area that will be affected by a

proposed project, may be greater than the area encompassed by the project itself.

9 In addition to banning plastic bags, Ordinance No. 2115 requires all paper

bags provided by establishments in the city to be recyclable “using Manhattan

Beach‟s available recycling collection programs.”

20

“ „[T]he project area does not define the relevant environment for purposes of

CEQA when a project‟s environmental effects will be felt outside the project

area.‟ [Citation.] Indeed, „the purpose of CEQA would be undermined if the

appropriate governmental agencies went forward without an awareness of the

effects a project will have on areas outside of the boundaries of the project area.‟

[Citation.]” (Muzzy Ranch Co. v. Solano County Airport Land Use Com., supra,

41 Cal.4th at p. 387.)

This does not mean, however, that an agency is required to conduct an

exhaustive analysis of all conceivable impacts a project may have in areas outside

its geographical boundaries. “ „[T]hat the effects will be felt outside of the project

area . . . is one of the factors that determines the amount of detail required in any

discussion. Less detail, for example, would be required where those effects are

more indirect than effects felt within the project area, or where it [would] be

difficult to predict them with any accuracy.” (Muzzy Ranch Co. v. Solano County

Airport Land Use Com., supra, 41 Cal.4th at p. 388.) In Muzzy Ranch, we were

concerned with the level of detail required to apply the commonsense exemption

from CEQA review. However, our comments are equally pertinent to the analysis

of impacts in an initial study leading to the issuance of a negative declaration.

“Evidence appropriate to the CEQA stage in issue is all that is required.” (Ibid.)

The impacts of this project in areas outside Manhattan Beach itself are both

indirect and difficult to predict. The actual increase in paper bag use as a result of

the ordinance is necessarily uncertain, given that some percentage of local

residents may be expected to turn to the city‟s favored alternative, reusable bags.

Moreover, the city could hardly be expected to trace the provenance of all paper

bags that might be purchased by Manhattan Beach establishments, in order to

evaluate the particular impacts resulting from their manufacture. Accordingly,

under the approach we endorsed in Muzzy Ranch Co. v. Solano County Airport

21

Land Use Com., supra, 41 Cal.4th at p. 388, the city could evaluate the broader

environmental impacts of the ordinance at a reasonably high level of generality.

The city properly concluded that a ban on plastic bags in Manhattan Beach

would have only a minuscule contributive effect on the broader environmental

impacts detailed in the paper bag “life cycle” studies relied on by plaintiff. Given

the size of the city‟s population (well under 40,000) and retail sector (under 220

establishments, most of them small), the increase in paper bag production

following a local change from plastic to paper bags can only be described as

insubstantial.

As the city conceded at oral argument, the analysis would be different for a

ban on plastic bags by a larger governmental body, which might precipitate a

significant increase in paper bag consumption. In the courts below, plaintiff

referred to the cumulative impacts the Manhattan Beach ordinance might have in

conjunction with similar laws enacted or contemplated elsewhere, including bans

in San Francisco and Santa Monica, and possible bans in Oakland, Los Angeles

County, and even statewide. (See § 21083, subd. (b)(2); Environmental

Protection Information Center v. California Dept. of Forestry & Fire Protection,

supra, 44 Cal.4th at pp. 524-525; Sierra Club v. West Side Irrigation Dist. (2005)

128 Cal.App.4th 690, 700-702.) The Court of Appeal did not discuss this issue.

In any event, we note that Manhattan Beach is small enough that even the

cumulative effects of its ordinance would be negligible.10

10 For instance, plaintiff pointed out in its trial court briefing that Los Angeles

County had an estimated population in 2006 of close to 10 million. It would be

pointless to require the city to prepare an EIR on the additional impacts of paper

bag use by its fewer than 40,000 residents, and ridiculous to ask it to evaluate the

effects of a possible countywide ban before acting locally. While cumulative

impacts should not be allowed to escape review when they arise from a series of

(footnote continued on next page)

22

In sum, the Court of Appeal erred by concluding there was substantial

evidence to support a fair argument that Manhattan Beach‟s plastic bag ordinance

might significantly affect the environment. While some increase in the use of

paper bags is foreseeable, and the production and disposal of paper products is

generally associated with a variety of negative environmental impacts, no

evidence suggests that paper bag use by Manhattan Beach consumers in the wake

of a plastic bag ban would contribute to those impacts in any significant way.

It is well settled that “CEQA is to be interpreted „to afford the fullest

possible protection to the environment within the reasonable scope of the statutory

language.‟ [Citation.]” (Mountain Lion Foundation v. Fish & Game Com. (1997)

16 Cal.4th 105, 112.) As noted above, it is also established that CEQA review

includes the impacts a project may have in areas outside the boundaries of the

project itself. However, this case serves as a cautionary example of overreliance

on generic studies of “life cycle” impacts associated with a particular product.

Such studies, when properly conducted, may well be a useful guide for the

decisionmaker when a project entails substantial production or consumption of the

product. When, however, increased use of the product is an indirect and uncertain

consequence, and especially when the scale of the project is such that the increase

is plainly insignificant, the product “life cycle” must be kept in proper perspective

and not allowed to swamp the evaluation of actual impacts attributable to the

project at hand.

(footnote continued from previous page)

small-scale projects, that prospect does not appear in this case. According to

plaintiff, the movement to ban plastic bags is a broad one, active at levels of

government where an appropriately comprehensive environmental review will be

required.

23

Common sense in the CEQA domain is not restricted to the exemption

provided by the regulatory guideline discussed in Muzzy Ranch Co. v. Solano

County Airport Land Use Com., supra, 41 Cal.4th at p. 380. It is an important

consideration at all levels of CEQA review. (See, e.g., Friends of Mammoth v.

Board of Supervisors (1972) 8 Cal.3d 247, 272; Martin v. City and County of San

Francisco (2005) 135 Cal.App.4th 392, 402, citing cases.) Here, common sense

leads us to the conclusion that the environmental impacts discernible from the “life

cycles” of plastic and paper bags are not significantly implicated by a plastic bag

ban in Manhattan Beach.

DISPOSITION

We reverse the judgment of the Court of Appeal.

CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

KENNARD, J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.

CROSKEY, J. *

___________________________

* Associate Justice, Court of Appeal, Second Appellate District,

Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of

the California Constitution.

24

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Save the Plastic Bag Coalition v. City of Manhattan Beach

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 181 Cal.App.4th 521

Rehearing Granted

__________________________________________________________________________________

Opinion No. S180720

Date Filed: July 14, 2011

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: David P. Yaffe

__________________________________________________________________________________

Counsel:

Robert V. Wadden, Jr., City Attorney, for Defendant and Appellant.

John B. Murdock for Heal the Bay as Amicus Curiae on behalf of Defendant and Appellant.

Remy, Thomas, Moose and Manley, James G. Moose, Ashle T. Crocker and Jennifer S. Holman for

Californians Against Waste as Amicus Curiae on behalf of Defendant and Appellant.

Briscoe Ivester & Bazel, Christian L. Marsh and Peter S. Prows for League of California Cities and

California State Association of Counties as Amicus Curiae on behalf of Defendant and Appellant.

Carico Johnson Toomey and William G. Benz for The Manhattan Beach Residents Association as Amicus

Curiae on behalf of Defendant and Appellant.

Stephen L. Joseph for Plaintiff and Respondent.

M. Reed Hopper and Joshua P. Thompson for Pacific Legal Foundation as Amicus Curiae on behalf of

Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

James G. Moose

Remy, Thomas, Moose and Manley

455 Capitol Mall, Suite 210

Sacramento, CA 95814

(916) 443-2745

Christian L. Marsh

Briscoe Ivester & Bazel

155 Sansome Street, Seventh Floor

San Francisco, CA 94104

(415) 402-2700

Stephen L. Joseph

350 Bay Street, Suite 100-328

San Francisco, CA 94133

(415) 577-6660