Dillon to move forward with plastic bag ban Aug. 1 despite legal concerns | SummitDaily.com

Dillon to move forward with plastic bag ban Aug. 1 despite legal concerns

Plastic bag in hand, a customer leaves a store in Frisco on Aug. 14, 2019. Beginning Aug. 1, Dillon will ban single-use plastic bags.
Photo by Liz Copan / Summit Daily archives

It’s time for Dillon residents and visitors to get their reusable bags ready.

The town of Dillon will push forward with its disposable plastic bag ban next month despite some concerns about how the town’s new regulations will work with statewide fees and bans on the way in the coming years.

In November 2020, Dillon joined Breckenridge, Frisco, Aspen, Steamboat Springs, Telluride and other municipalities across Colorado in taking a stand against single-use plastic bags and other disposable items. Dillon’s ordinance will go into effect Aug. 1 and includes an outright ban on most businesses and restaurants providing disposable plastic bags and polystyrene containers, like Styrofoam, to customers.

On July 6, less than a month before Dillon’s ordinance was set to take effect, Gov. Jared Polis signed House Bill 21-1162 into law. Otherwise known as the Plastic Pollution Reduction Act, the law prohibits most retailers and restaurants from providing single-use plastic bags and polystyrene containers beginning Jan. 1, 2024.

The state’s new law will begin to phase out the products over time. Beginning Jan. 1, 2023, stores can provide only recycled paper or single-use plastic bags to customers if they charge a 10-cent fee, or a higher fee if towns decide to implement them.

The new law also stipulates that local governments can enact their own regulations on bags and containers that are as strict or stricter than the state’s after July 1, 2024, though, it’s unclear whether towns and cities are legally able to implement their own bans before then.

“What it really comes down to is a question of preemption and whether the state statute preempts local regulation,” Dillon’s attorney Nick Cotton-Baez said in an interview with the Summit Daily on Thursday afternoon. “What complicates that is the fact that Dillon, through the Colorado Constitution and its home rule charter, has jurisdiction over matters of local concern. Where the law gets even more complicated is when the state legislates in an area and deems that a matter of statewide concern. The local regulation, if it’s deemed to also be a matter of mixed local and statewide concern, has to be able to exist harmoniously with the statewide legislation in order to survive preemption. Otherwise the local regulation will be superseded.”

In other words, as soon as Colorado decided to legislate the issue, the argument could be made that it’s no longer a local issue and that the state’s law would supersede Dillon’s — along with planned bag bans in Breckenridge and Frisco set to take effect in September — prohibiting a total ban until 2024.

Cotton-Baez said it was unlikely that the state would take any legal action against Dillon or other towns that have banned plastic bags and other disposable products because the town is essentially fast-tracking the state’s policy. The risk is that retailers within the town, such as City Market, or plastic and polystyrene manufacturers would bring legal action against the town claiming that the ordinance is unlawfully conflicting with state statutes.

If challenged, Cotton-Baez said Dillon and other municipalities would argue that the issue remains local as officials are seeking to mitigate the harmful effects of plastic and polystyrene pollution in their own communities.

“The reason there is risk of litigation is because this issue has never been decided by a court, and it’s unclear whether a court would decide that Dillon’s ordinance is preempted,” Cotton-Baez said. “… There’s some uncertainty as to whether the ordinance would withstand a challenge due to the state’s decision to legislate in this area.”

During a Dillon Town Council work session Tuesday, July 20, council members discussed whether they wanted to move forward with their ordinance as planned or if doing so would open the town up to too much legal risk.

The Town Council discussed several options to address the issue, including implementing a fee in lieu of a ban to better align with the existing policies of nearby towns, pushing back the effective date of the ordinance to give the council more time to consider their options, or repealing the ordinance altogether and allowing the state’s law to address the issue in time.

Ultimately, as the ordinance was approved months before the state’s new law was signed and aligns with the town’s sustainability goals, the Town Council decided to stick to their original ordinance and implement the bans as planned.

“The ordinance that we have is really based on the compromise and the discussion we had as a council that this is what we thought was best for the town,” council member Steve Milroy said. “And it kind of feels like if we back off of that or don’t do it, we’re not honoring that commitment to sustainability.”

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