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City of Laredo v. Laredo Merchants Association

Supreme Court of Texas

June 22, 2018

City of Laredo, Texas, Petitioner,
Laredo Merchants Association, Respondent

          Argued January 11, 2018

          On Petition for Review from the Court of Appeals for the Fourth District of Texas

          Justice Blacklock did not participate in the decision.


          Hecht Chief Justice

         The roving, roiling debate over local control of public affairs has not, with increased age, lost any of its vigor. From public education[1] to immigration policy[2] to fracking[3] to shopping bags, the sides are always deeply divided.[4] "Judges have no dog in this fight. Our duty is to apply the rules fairly and equally to both sides."[5]

         The Texas Constitution states that city ordinances cannot conflict with state law.[6] The Texas Solid Waste Disposal Act ("the Act") provides that "[a] local government . . . may not adopt an ordinance . . . to . . . prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law".[7] The sharply contested issue here is whether the Act preempts, and thus invalidates, a local antilitter ordinance prohibiting merchants from providing "single use" plastic and paper bags to customers for point-of-sale purchases.[8] The trial court upheld the ordinance, but a divided court of appeals reversed, holding that it is preempted by the Act.[9]

         Both sides of the debate and the many amici curiae who have weighed in assert public-policy arguments raising economic, environmental, and uniformity concerns.[10] But those arguments are not ours to resolve. "The wisdom or expediency of the law is the Legislature's prerogative, not ours."[11]We must take statutes as they are written, [12] and the one before us is written quite clearly. Its limitation on local control encompasses the ordinance. We affirm the judgment of the court of appeals.


         As part of a strategic plan to create a "trash-free" city, the City of Laredo adopted an ordinance to reduce litter from one-time-use plastic and paper bags ("the Ordinance").[13] To discourage use of these bags, the Ordinance makes it unlawful for any "commercial establishment" to provide or sell certain plastic or paper "checkout bags" to customers.[14] The ordinance applies to commercial enterprises that sell retail goods to the general public and includes the business's employees and associated independent contractors.[15] A violation is punishable as a Class C misdemeanor with a fine of up to $2, 000 per violation plus court costs and expenses.[16]

         The Ordinance's stated objectives are:

(a) To promote the beautification of the city through prevention of litter generated from discarded checkout bags.
(b) To reduce costs associated with floatable trash controls and the maintenance of the municipal separate stormwater sewer system.
(c) To protect life and property from flooding that is a consequence of improper stormwater drainage attributed in part to obstruction by litter from checkout bags.[17]

         The Ordinance declares that its purpose is to "reduce litter from discarded plastic bags" in order to "help bring the City one step closer to being a trash-free city".[18] The Ordinance, in its words, "is not a ban on plastic bags, but an incremental implementation plan towards a cleaner city".[19]

         Shortly before the Ordinance's effective date, the Laredo Merchants Association (the Merchants) sued the City to forestall its enforcement. The Merchants sought declaratory and injunctive relief, asserting that the Ordinance is preempted by Section 361.0961 of the Act and thus void under the Texas Constitution.[20] That provision, as important here, expressly precludes a local government from prohibiting or restricting "the sale or use of a container or package" if the restraint is for "solid waste management purposes" and the "manner" of regulation is "not authorized by state law".[21]

          The City moved for summary judgment, arguing that the Act does not clearly and unmistakably preempt a municipality from banning single-use bags. According to the City, the Act does not preempt its Ordinance because:

• the statutory terms "container" and "package" refer to a closed vessel or wrapping, not "bags";
• the Ordinance was not enacted for a "solid waste management purpose[]" because it regulates activities occurring before single-use bags become trash;
• the Ordinance is "authorized by" Texas Local Government Code Section 551.002, which generally permits a home-rule municipality, like the City, to enact regulations to protect streams and watersheds;[22] and
• the Ordinance is a valid exercise of the City's police power.

         In a cross-motion for partial summary judgment, the Merchants asserted that:

• a "bag" is a "container" within the plain and ordinary meaning of the statutory term;
• nothing in the Solid Waste Disposal Act supports the City's circumscribed construction of "solid waste management purposes";
• the Ordinance's purpose, both stated and effective, is to systematically control the generation of a particular form of solid waste, which is a "solid waste management purpose[]"; and
• whether the City was exercising its police powers in enacting the Ordinance is irrelevant to the preemption inquiry.

         The trial court granted the City's motion for summary judgment and denied the Merchants' motion, holding, without elaboration, that the Ordinance is not void because reasonable constructions exist under which both the Act and the Ordinance could be effective.

          A divided court of appeals reversed, rendered judgment declaring that the Act preempts the Ordinance, and remanded for consideration of the Merchants' claim for attorney fees.[23] Relying on defined statutory terms and the plain meaning of undefined terms, the court concluded that a plastic or paper bag is a "container" or "package" within the Act's meaning; the Ordinance has a solid waste management purpose and effect; and the City is not empowered by state law to prohibit the sale or use of plastic and paper bags.[24] The dissenting justice discerned implicit limits on the meaning of the term "container" from variant uses of that term elsewhere in the Act and from its structure.[25] In the dissent's view, the Act's preemption provision "may reasonably be construed as applying to solid waste containers used to store, transport, process, or dispose of solid waste, particularly those used by solid waste facilities and those used in medical waste management."[26]Thus, the dissent concluded, the Ordinance does not regulate solid waste containers, and the Act does not preempt it.[27]

          We granted the City's petition for review, [28] in part because similar ordinances have been enacted by other municipalities.[29]



         As a home-rule municipality, the City of Laredo possesses the "full power of local self-government."[30] But Article XI, Section 5(a) of the Texas Constitution provides that home-rule city ordinances must not "contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State."[31] While home-rule cities have all power not denied by the Constitution or state law, and thus need not look to the Legislature for grants of authority, the Legislature can limit or withdraw that power by general law.[32] Deciding whether uniform statewide regulation or nonregulation is preferable to a patchwork of local regulations is the Legislature's prerogative.[33] The question is not whether the Legislature can preempt a local regulation like the Ordinance but whether it has.

         A statutory limitation of local laws may be express or implied, [34] but the Legislature's intent to impose the limitation "must 'appear with unmistakable clarity.'"[35] The mere "entry of the state into a field of legislation . . . does not automatically preempt that field from city regulation".[36] Rather, "local regulation, ancillary to and in harmony with the general scope and purpose of the state enactment, is acceptable."[37] Absent an express limitation, if the general law and local regulation can coexist peacefully without stepping on each other's toes, both will be given effect or the latter will be invalid only to the extent of any inconsistency.[38]

         In this case, legislative intent in the Act to preempt local law is clear. The Act states that "[a] local government or other political subdivision may not adopt" certain ordinances.[39] The issue is whether the Ordinance falls within the Act's ambit.[40] To decide that, we look, as usual, to the statutory text and the ordinary meanings of its words.[41]


         The Act provides, "It is this state's policy and the purpose of [the Act] to safeguard the health, welfare, and physical property of the people and to protect the environment by controlling the management of solid waste".[42] To that end, "the state's goal, through source reduction, [is] to eliminate the generation of municipal solid waste . . . to the maximum extent that is technologically and economically feasible."[43] According to the Act,

the state's public policy [is] that, in generating, treating, storing, and disposing of municipal solid waste . . ., the methods listed [below] are preferred to the extent economically and technologically feasible and considering the appropriateness of the method to the type of solid waste material . . . generated, treated, disposed of, or stored[:]
* * *
(1) source reduction and waste minimization;
(2) reuse or recycling of waste;
(3) treatment to destroy or reprocess waste to recover energy or other beneficial resources if the treatment does not threaten public health, safety, or the environment; or
(4) land disposal.[44]

         The Act thus describes a state interest in "controlling the management of solid waste"[45] that is plenary. The Act's preemption of local control is narrow and specific, applying to ordinances that "prohibit or restrict, [1] for solid waste management purposes, [2] the sale or use of a container or package [3] in a manner not authorized by state law".[46] The City argues that its Ordinance does not meet any of these elements. We address each in turn.


         The Act does not define the phrase "solid waste management purposes" but does define its constituent parts. "[S]olid waste" means "discarded material", including "rubbish", [47] which is "nonputrescible solid waste . . . that consists of . . . combustible waste materials, including paper . . . [and] plastics".[48] "'Management' means the systematic control of the activities of generation, source separation, collection, handling, storage, transportation, processing, treatment, recovery, or disposal of solid waste."[49] The term "management" thus refers to institutional controls imposed at any point in the solid waste stream, from generation of solid waste to disposal.

         The Ordinance's stated purpose and its intended effect are to control the generation of solid waste by reducing a source of solid waste on the front end so those single-use materials cannot be inappropriately discarded on the back end. The City contends that this is "source reduction", defined by the Act as "an activity or process that avoids the creation of municipal solid waste in the state by reducing waste at the source".[50] The purpose of the Ordinance cannot be "solid waste management", the City argues, because at the moment of regulatory restraint, the bags have not yet been discarded and, therefore, are not yet "solid waste". But "management" includes "the systematic control of the . . . generation . . . of solid waste" as well as its handling after it is created.[51] The Act does not define "generation", so we give the word its ordinary meaning-to generate is "to cause to be: bring into existence".[52] The Ordinance's stated purposes are to reduce litter and eliminate trash-in sum, to manage solid waste, which the Act preempts. The Ordinance cannot fairly be read any other way.

         But, the City argues, the Ordinance has other, independent, and distinct purposes for prohibiting the provision of single-use bags, such as preventing sewer blockages and flooding, promoting beautification, ameliorating the economic impact of this particular form of litter, and protecting water and wildlife. All of these salutary objectives pertain to the ancillary effects of reducing the generation of solid waste, which is a solid waste management purpose. The Ordinance's solid waste management cannot avoid preemption merely because it has other purposes.

         We think it clear that the Ordinance was adopted for solid waste management purposes.


         In the City's view, the Act does not clearly apply to new bags for point-of-sale purchases because the term "bag" is not used in the statute and the statute is contextually focused on trash, not new items. As the City sees it, no matter how likely or expeditiously single-use bags are destined to become trash, the Act's reach is limited to either (1) containers and packages that have already been discarded, or (2) containers and packages that store or transport garbage, like dumpsters. Again, the City's narrow construction is not supported by a plain reading of the statute.

         Neither "container" nor "package" is statutorily defined, so we begin by looking to the words' ordinary meanings. A "container" is "an object that can be used to hold or transport something";[53] "a receptacle (as a box or jar) or a formed or flexible covering for the packing or shipment of articles, goods, or commodities".[54] The term "package" refers to "a commodity in its container: a unit of a product uniformly processed, wrapped, or sealed for distribution [like cigarettes or fruits and vegetables]"; "a covering wrapper or container . . . [such as] a protective unit for storing or shipping a commodity";[55] "an object or group of objects wrapped in paper or plastic, or packed in a box"; and "the box or bag in which things are packed."[56] A "bag," commonly understood, is "a container made of paper, cloth, mesh, metal foil, plastic, or other flexible material . . . for properly holding, storing, carrying, shipping, or distributing any material or product".[57] A single-use paper or plastic bag used to hold retail goods and commodities for transportation clearly falls within the ordinary meaning of "container". The Ordinance itself repeatedly characterizes bags as containers.[58] Construing the term "container" to exclude bags is incompatible with the common use and understanding of that word.

         But the common understanding of the words is only the beginning of the inquiry. We must also consider the statutory context to determine whether the Legislature intended a narrower or more specialized meaning than the words used would ordinarily carry. In their immediate context, the words "container" and "package" are not accompanied by words modifying or restricting the terms in the way the City suggests, neither in Section 361.0961(a)(1), [59] which is at issue here, nor in subsection (a)(3), which prohibits local governments from "assess[ing] a fee or deposit on the sale or use of a container or package."[60] By the latter provision, a "container or package" is something that can be sold or used for a fee or deposit, that is, something that is not already trash. While a discarded container might yet be sold, it would never be subject to a deposit, designed to secure its return.[61] One would expect a deposit to be assessed on an item that was not trash at the time of assessment but likely to become trash, not the other way around.

          The alternative limitation the City proposes-receptacles used to hold or transport solid waste-fares no better. The Act does use "container" in that sense but does not restrict the word to that meaning. The word "package" does not appear elsewhere in the Act, but "packaging" does, and its use is consistent with the ordinary understanding of the term, not as a solid waste receptacle.[62]The phrase "container or package" suggests analogous meanings, contrary to the City's argument.

         The Act is not concerned solely with discarded materials but also includes regulations applicable to the production, retail sale, and distribution of new consumer goods.[63] If consumer products were to be excluded from the preemption provision, the Legislature would have said so, as it did by excluding consumer products elsewhere in the Act.[64] As a fundamental statutory-construction principle, "[w]e presume that the Legislature chooses a statute's language with care, including each word chosen for a purpose, while purposefully omitting words not chosen."[65] The only reasonable construction of the Act that accords with the statute as a whole is one that affords the terms container and package their ordinary meanings.


         Finally, the City argues that the Ordinance escapes preemption because it is "authorized by state law"[66] as shown by its consistency with various state general laws-laws regarding municipal authority to: protect water sources, the municipal water supply, and watersheds;[67] regulate water systems in a manner that protects the municipality's interests;[68] own, construct, operate, and maintain a water system;[69] adopt and enforce rules pertaining to operating a drainage utility system;[70] maintain and regulate the cleaning of sewers;[71] and establish "a water pollution control and abatement program for the city", including "the development and execution of reasonable and realistic plans for controlling and abating pollution".[72] The City also cites laws imposing liability for damages caused by the operation of the municipality's sewer systems[73] and authorizing cities to impose fines for unsanitary conditions.[74]

          But the Act preempts local regulation "in a manner not authorized by state law".[75] The question is not whether a municipality has the power to regulate. Home-rule cities already have the power of self-governance unless restricted by state law. If "authorized by law" in the preemption provision referred only to the power municipalities already have, the restriction would have no effect. But the preemption provision applies to local regulation when the manner is not authorized by state law. Manner is how something can be done, not merely if it can be.[76] A manner must be stated by, and not merely implied from, a grant of authority. The clear, stated intent of the Act is to control the manner of regulating the sale or use of containers or packages for solid waste management purposes. To conclude otherwise would render the statute meaningless.[77]

         By rescinding local control that would otherwise exist, the Act forbids home-rule cities from regulating that subject matter. By authorizing regulation only when municipalities are told how to permissibly regulate, the Act requires an express authorization. These circumstances are functionally analogous to how general-law municipalities operate under the law. General-law municipalities lack the power of self-government and must look to the Legislature for express grants of power.[78] So too must a home-rule city whose self-governance has been legislatively abrogated.

          The Act's exemption does not save the Ordinance because the City has not identified a law authorizing the manner in which the City seeks to regulate. The general grants of regulatory authority the City relies on do not authorize the manner the City has chosen and, more to the point, do not supersede the express directive in the Act.

         * ...

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