City of Laredo v. Laredo Merchants Ass'n

• Decision Date: 22 June 2018
• Docket Number: No. 16-0748,16-0748
• Citation: 550 S.W.3d 586
• Parties: CITY OF LAREDO, Texas, Petitioner, v. LAREDO MERCHANTS ASSOCIATION, Respondent
• Court: Texas Supreme Court

550 S.W.3d 586

CITY OF LAREDO, Texas, Petitioner,

v.LAREDO MERCHANTS ASSOCIATION, Respondent

No. 16-0748

Supreme Court of Texas.

Argued January 11, 2018

Opinion delivered: June 22, 2018

Jennifer D. Jasper, Munck Wilson Mandala, LLP, Austin, for Amicus Curiae Aliseda, Jose.

Ellen E. Springer, Evan A. Young, Baker Botts LLP, Austin, for Amicus Curiae BCCA Appeal Group, Inc.

Matthew L. Kuryla, Baker Botts LLP, Houston, for Amicus Curiae BCCA Appeal Group, Inc.

Charles W. Irvine, Irvine & Conner PLLC, Houston, for Amici Curiae Bicycle Sport Shop, Environment Texas, and Natural Grocers.

Mary Whittle, Guerrero & Whittle PLLC, Austin, for Amici Curiae Black Bass Unlimited, Cantrell, Shane, Farah, Joey, Hickman, Scott, Parten, Edward, Van Zandt, J. T., and Webb, Robert.

Charles W. Irvine, Irvine & Conner PLLC, Houston, for Amici Curiae Bicycle Sport Shop, Environment Texas, and Natural Grocers.

Frances Hagga, Austin, as Amicus Curiae Hagga, Frances.

Marisa Perales, Richard W. Lowerre, Frederick Perales Allmon & Rockwell, P.C., Austin, for Amicus Curiae Rio Grande International Study Center.

Joel Rheman, Sullins, Johnston, Rohrbach & Magers, Houston, for Amicus Curiae Texans for Clean Water, Inc.

Christopher Blair Dancy, Taylor R. Romero, Zachary H. Bowman, Cain & Skarnulis PLLC, Austin, for Amicus Curiae Texas Campaign for the Environment.

Bruce R. Bodson, Bodson Environmental Law and Science, P.C., Missouri City, for Amicus Curiae Texas Cotton Ginners Association Billy Joe Easter.

Christy Drake-Adams, Texas Municipal League, Austin, for Amicus Curiae Texas Municipal League and Texas City Attorneys Association.

Robert Earl Henneke, Texas Public Policy Foundation, Austin, for Amicus Curiae Texas Public Policy Foundation.

Edward D. Burbach, Gardere Wynne Sewell LLP, Austin, for Amicus Curiae Texas Retailers Association.

Timothy Stostad, Office of Senator Judith Zaffirini, Austin, for Amicus Curiae Texas State Senator Judith Zaffirini.

Christopher D. Kratovil, Dykema Cox Smith, Dallas, for Amicus Curiae Texas State Senators and Texas State Representatives.

Kristina M. Williams, Dykema Cox Smith, Austin, for Amicus Curiae Texas State Senators and Texas State Representatives.

Donald S. Glywasky, Galveston, for Amicus Curiae The City of Galveston.

Kimberly K. Coogan, Austin, for Amicus Curiae The City of Galveston.

Collyn A. Peddie, Judith L. Ramsey, Ronald C. Lewis, Houston, for Amicus Curiae The City of Houston.

Brantley D. Starr, David Austin Robert Nimocks, Jeffrey C. Mateer, Michael Toth, Scott A. Keller, W. Kenneth Paxton Jr., Austin, for Amicus Curiae The State of Texas.

Kelly Haragan, University of Texas School of Law, Austin, for Amicus Curiae Turtle Island Restoration Network.

Gerry Willis, Dripping Springs, as Amicus Curiae Willis, Gerry.

Dale Wainwright, Alan W. Hersh, Greenberg Traurig, LLP, Austin, Andrea Broyles, Bracewell LLP, Dallas, Brian Hogue, Bracewell LLP, Houston, Kristina K. Laurel, Raul Casso IV, Laredo, Lindsay E. Hagans, Houston, for Petitioner.

James B. Harris, Thompson & Knight LLP, Dallas, Christopher C. Peterson, Lopez Peterson PLLC, Laredo, for Respondent.

Chief Justice Hecht delivered the opinion of the Court.

The roving, roiling debate over local control of public affairs has not, with increased age, lost any of its vigor. From public education¹ to immigration policy² to fracking³ 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.

I

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

II

A

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...