New York Court Rejects Loophole in the State’s Plastic Bag Ban and Upholds the New Law

Today, New York State court in Albany County upheld the State’s ban on plastic carryout bags, and also rejected a loophole that would have undermined the ban by continuing to allow the free distribution of thicker plastic bags.

Plastic bags harm human health and the environment throughout their lifecycle, from the extraction of the fossil fuels used to create plastics to their disposal. Chemicals released during plastic production are associated with skin and lung irritation and blood cancer, and the plastic products themselves can leach toxic chemicals both during use and after disposal. 

To address these impacts, in 2019, the New York State Legislature passed a law that prohibited New York vendors from distributing any plastic carryout bags to their customers, with limited exceptions. The New York State Department of Environmental Conservation issued regulations to implement this law, but the regulations added a major loophole by adding a new exemption to the law that allowed stores to continue to distribute thicker plastic bags. Plastic industry groups sued in an attempt to strike down both the law and the regulations in order to do away with the ban in its entirety. 

Earthjustice submitted a “friend of the court” brief on behalf of the citizen groups We ACT for Environmental Justice, Beyond Plastics, and Clean and Healthy New York. The citizen groups’ brief argued in support of upholding the ban but doing away with the unlawful exemption for thick plastic bags.

Today’s court decision largely agreed with the citizen groups’ brief by upholding the ban but striking down the exemption for thick bags, so the ban has the full effect that the Legislature intended. 

“This is a slam dunk victory for New York’s environment. New Yorkers use a staggering number of plastic bags — 23 billion each year. It is terrific that New York’s plastic bag ban was upheld and that the court rejected the loophole that would have allowed for stores to hand out thicker plastic bags, almost defeating the original purpose of the law. Once fully implemented, New Yorkers will see less plastic bag litter in our communities, parks and waterways,” said Judith Enck, President of Beyond Plastics and former EPA Regional Administrator. 

“New York is a bellwether state, and as such, if this loophole was adopted, other states would likely have followed suit. This sets an important legal precedent that will help protect frontline communities across the lifecycle from oil extraction, plastic manufacturing, and disposal via dumping or incineration,” said Kathleen A. Curtis, Executive Director of Clean and Healthy New York and Co-leader of the JustGreen Partnership. 

“While the plastics industry continues to push an agenda that undermines human and environmental health in the name of disposable plastics, Earthjustice and partners thank the courts for upholding the letter of the law and not allowing this major loophole,” said Jonathan Smith, Staff Attorney at Earthjustice. “The New York State Legislators wanted to protect the people of New York from the harmful impacts of the creation, use, and disposal of plastics when passing the law, and now New Yorkers can be assured that those protections will continue.”