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Anacostia River Clean-Up and Protection Act of 2009: Skip the Bag, Save the River

There is a growing movement in the United States to ban or discourage the use of plastic bags because of their environmental effects. Plastic shopping bags are ubiquitous, useful for toting groceries, storing wet bathing suits, bagging lunches, and cleaning up during doggie walks. Critics of the bags, however, charge that they use up natural resources, consume energy to manufacture, add significantly to landfill waste, choke marine life, and create litter.

Indeed, the Anacostia River in Washington, DC, has been significantly impaired due to trash, mainly in the form of plastic bags, bottles, wrappers, and styrofoam. D.C. taxpayers spend over $50 million every year cleaning bags and trash out of the Anacostia River and off local streets. Last year the D.C. City Council passed legislation to encourage residents and visitors to "skip the bag and save the river."

Beginning January 2, 2010, D.C. businesses that sell food or alcohol must charge the customer five (5) cents for each disposable paper or plastic carryout bag. To reduce plastic trash entering the Anacostia River and its tributaries and to create a fund to clean up the river, the D.C. City Council unanimously passed the Anacostia River Clean-Up and Protection Act of 2009 ("Act"); and on July 13, 2009, D.C. Mayor Adrian Fenty signed it into law. The heart and soul of the law is the requirement that customers pay a 5-cent fee on each "disposable carryout bag" they take to carry their purchases at grocery stores, drug stores, liquor stores, restaurants, and food vendors.

Key facets of the law are as follows:

• The fee applies to single-use plastic and paper bags. This is to prevent an increase of paper over plastic and to keep store costs down, while promoting bag avoidance and reusable bags.
• The fee applies to all retail establishments, large and small. Exemptions are allowed for newspaper bags, dry-cleaning bags, unwrapped bakery items, pharmacy bags for prescription drugs, paper carryout bags that restaurants provide to customers to take food away from the retail establishment, reusable carryout bags, and bags provided to the consumer for the purpose of transporting a partially consumed bottle of wine.
• One cent of the fee goes back to stores to cover administration costs. Stores that offer a carryout bag credit program to its customers retain two cents of the fee.
• Collected fees will be deposited into a newly established Anacostia River Clean-Up and Protection Fund, which is administered by the District Department of the Environment ("DDOE"). The fund will pay for various environmental educational and river restoration projects, including, but not limited to, the following: a public education campaign to educate residents, businesses, and tourists about the impact of trash on D.C.'s environmental health; providing reusable carryout bags to D.C. residents, with priority distribution to senior and low-income residents; purchase and install equipment, such as storm drain screens and trash traps, designed to minimize trash pollution that enters waterways through storm drains; monitoring and recording pollution indices; preventing or enhancing water quality and fishery or wildlife habitat; and promoting conservation programs, including programs for wildlife and endangered species.

Washington, D.C. was one of the first but it is certainly not the only jurisdiction that has either enacted or considered disposable bag legislation. In 2007 San Francisco enacted the Plastic Bag Reduction Ordinance to ban plastic bags in grocery stores and pharmacies. Opponents of "ban the bag" legislation, including the plastic bag industry, say that programs to encourage plastic bag recycling and reusing is the proper environmental choice to the problem of bags littering our streams and landscapes. An example of such a program is in place in Delaware. In 2009 Delaware enacted the Plastic Carryout Bag Recycling Act, effective on December 1, 2009. Similar to laws previously passed in the states of California and New York, the Delaware act requires retailers and chain stores that give out plastic bags to consumers to provide collection bins for their recycling. Under the law, any store required to recycle plastic bags must also sell reusable bags.

Other jurisdictions have considered "ban the bag" legislation. This year the Virginia General Assembly failed to enact House Bill 1115, which would have required stores to charge shoppers 5 cents for each non-reusable bag they give to customers. In addition, Virginia House Bill 521, which was also tabled, would have imposed a ban on the use of plastic carryout bags by retailers, unless the bags were designed for reuse.

The 2010 Maryland General Assembly considered and failed to pass House Bill 351 (and Senate Bill 462), the Chesapeake Bay Restoration Consumer Retail Choice Act of 2010, which mimicked the D.C. Act. The bills would have required retail establishments to charge for disposable carryout bags. The proceeds would have been divided between the businesses and a fund to clean up the Chesapeake Bay.