Attorney General Ashley Moody’s office Tuesday urged the Florida Supreme Court to reject an appeal in a battle about the city of Coral Gables’ attempt to ban the use of Styrofoam food containers.
Coral Gables took the dispute to the Supreme Court after the 3rd District Court of Appeal in August upheld the constitutionality of state laws that blocked a 2016 city ordinance targeting polystyrene, better known as Styrofoam. The city contends, in part, that the state “preemption” of the ordinance violates local home-rule powers.
But in a 12-page brief Tuesday, lawyers in Moody’s office said the case “breaks no new ground regarding the nature of the Legislature’s power to preempt local ordinances” and, as a result, the Supreme Court should not take it up. The state is allied in the case with the Florida Retail Federation, which filed a brief Monday.
“The (3rd District Court of Appeal) decision simply restated the well-established legal principle that the Florida Legislature can expressly preempt a subject matter for state regulation if it so chooses,” attorneys for the retail federation and Super Progreso, Inc., wrote in Monday’s brief. “The Legislature did so in the three clear and unambiguous statutes at issue.”
But in a brief filed last month, Coral Gables asked the Supreme Court to hear the case and pointed to potentially broader implications.
“Left unaddressed, the Third District’s opinion will have serious repercussions throughout the state, leaving local governments powerless to regulate not only the sale and use of polystyrene and other environmentally damaging materials, but also other fields where the Legislature might similarly claim total preemption without meeting constitutional standards,” the city’s attorneys wrote.
Local attempts to ban Styrofoam and other products such as plastic bags and plastic straws have drawn heavy debate in recent years in Florida and elsewhere, with supporters of the bans arguing that the products cause environmental damage. Lawmakers during the 2019 legislative session, for example, passed a bill that would have blocked local governments from banning plastic straws, but Gov. Ron DeSantis vetoed the measure.
Coral Gables approved its Styrofoam-ban ordinance in February 2016, and the retail federation and Super Progreso, Inc., later filed the lawsuit challenging its legality.
The case has focused heavily on a wide-ranging Department of Agriculture and Consumer Services bill that state lawmakers passed in March 2016. The bill barred local governments from regulating food-related polystyrene, containers and made that prohibition retroactive to any local ordinances passed after Jan. 1, 2016.
Coral Gables was the only city affected by the Legislature’s decision to make the state law retroactive to Jan. 1, 2016, spurring arguments that it was unfairly singled out. The city’s attorney also argued that the Legislature improperly delegated regulation of polystyrene to the Department of Agriculture and Consumer Services and created a “regulatory vacuum.”
“The city, for example, has more than 100 miles of waterway; its need to regulate the sale and use of environmentally harmful materials like polystyrene is immediate, and likely more so than that of other Florida municipalities,” the brief said. “Despite home rule, its hands are now tied, and there is nothing to indicate that the department will take action on polystyrene. Were the Legislature to similarly preempt all regulation of a more imminently dangerous product — for example, toxic chemicals or weapons — the consequences for local governments would be all the more severe.”
But in its brief Tuesday, attorneys for the state said Democratic lawmakers have filed bills (SB 182 and HB 6043) for the upcoming 2020 legislative session that would allow local governments to regulate Styrofoam. Moody’s office said that is another reason the Supreme Court should not wade into the dispute.
“Both pending bills, if passed, would repeal the preemptive effect of the three statutes at issue here,” Tuesday’s brief said. “Because the preempting statutes are constitutional, and in light of these legislative efforts, the (Supreme) Court should defer to the political process regarding whether regulation of polystyrene should be a statewide or local matter.”
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–Jim Saunders, News Service of Florida
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Duncan says
I don’t understand you State and Federal Governments are so obvious about being in the pocket of lobbyists.; I am more perplexed as to why anyone thinks it’s a bad idea to prohibit Styrofoam products, especially when serving food/drink. Its as fit we are destined to go down in history as the generations of of morons that though all of our environmental problems will just mysteriously vaporize without intervention.
It just ruins my day when i am served on closed-cell extruded polystyrene foam, a collection of compounds and chemicals that when heated release carcinogens, rather than paper. It a fact that styrofoam leaches into food and drink! Wake up Florida!
Robin says
This is another egregious example of the Republicans catering to business groups and not being strong on environmental issues. Our natural resources are what make Florida so precious and yet vulnerable.
Trailer Bob says
Not ALL Republicans Robin. I am a Republican and hate plastic straws and bags. ALL Republicans are not alike. All Democrats are not alike. And many people were born into a particular political party from birth. Thank God most of us are not of the “extreme” assortment and are able to think for ourselves.
Trailer Bob says
I so agree with the first two commenters. At my local Dollar General store I am constantly having the clerks put my bottle of wine, or a box of bandages in a plastic bag. Drive me nuts! I continue to try and explain to them that they should ASK the customer if they would like a bag, but that will apparently not happen without a mandate to do so. Recently one cashier actually, really, put my pack of cigarettes in a plastic bag…I mean REALLY?
And the result is way too many plastic bags in the streets and parking lots. If you have bought enough product to need a bag, then just bring your own cloth 0r paper, hell, even plastic for that matter, bag in with you. The other problem is that the County workers, when mowing the sides of the roads, simply mow over the plastic and paper bags, which make my area look terrible. We are not a third world county and we don’t have to make it look like we are. The change will end up happening anyway, so why not do it now and keep our towns and cities clean. We should now better, and many of us do.
Mary Fusco says
Our towns and cities will be clean when people STOP throwing their garbage in the streets. Unfortunately, this situation will continue because the last few generations have not been taught what to do with garbage. I get plastic bags every week when I shop. I save them and use them for cat litter disposal. If I happen to get a few too many, I put them in my regular garbage. The problem is not with stores. The problem is with the piggy people that don’t care where they dispose of anything.
Trailer Bob says
I agree with you Mary, but part of the problem actually is the handing out bags for any little item. Not all of us are slobs, ofcourse, but many feel entitled to that free bag, but have no plans, as you or I, to utilize the bag properly. So…unfortunately or not, we should just ban all plastic throwaway products. My wife has no problem storing multiple cloth bags in her car to be utilized as and when needed.
PS says
Ahh.
Decisions, decisions.
To buy or not to buy.
To ban or not to ban.
To breed or not to breed …
(lol, smh or something else?)
Dave says
It’s obvious we should ban styrofoam threw out the whole country , why would a person of any party fight this?