Democrats try again to ban plastic single-use bags in omnibus bill, but competing bill has bipartisan support | Legislature

An omnibus bill to ban plastic bags, polystyrene or Styrofoam containers and to allow local governments to impose stricter requirements around plastics recycling is moving through the House but is garnering way more opposition than a trio of bills that attempted the same things last year.

House Bill 1162 attempts to do in 2021 what three bills that all failed in 2020 could not. House bills 20-1162 and 20-1163 attempted to ban plastic bags and other single-use plastics as well as polystyrene containers; both went by the wayside in the pandemic-shortened 2020 session.

The third bill, Senate Bill 20-010, would have lifted what’s known as a preemption law that barred local governments from bans or restrictions on plastics. That bill died in part based on concerns that it could create a hodgepodge of different rules depending on which city or county the business operated in. 

Under the 2021 bill, stores and retail food businesses would have to stop using single-use plastic carryout bags as of Sept. 1, 2022. The ban would not apply to existing inventory, but that has to be used up by March 1, 2023, and businesses could sell those single-use bags for 10 cents each until then.

Between Sept. 1 of this year and Sept. 1, 2022, stores can furnish a recycled paper carryout bag or a single-use plastic carryout bag, also for a 10-cent per bag fee. Recycled paper bags would be available after Sept. 1, 2022, only for a 10-cent per bag fee. 

The business doesn’t get to keep all those fees; 60% would be remitted to the local government and the business would keep the rest. 

The fees would not be charged to people who are on food assistance programs. 

Under HB 1162, polystyrene food containers would be banned as of Sept. 1, 2022. Retail food businesses located within schools would be allowed to continue their use for another year; high schools would have until Sept. 1, 2024, to use up their supplies. 

The bill’s first stop was the House Energy and Environment Committee on March 11, where it was amended to exempt bags used for drugs or medical devices. 

Rep. Lisa Cutter, D-Littleton, one of the bill’s sponsors, told Colorado Politics that the idea behind combining the three bills from last year was because Democrats do favor all three. “We felt by negotiating all at once, with one big package and all the players, we would give certainty,” and it wouldn’t come back next year. It was simpler path for everyone involved, she said.  

Cutter disputed that preemption would create a hodgepodge of rules depending on what county a business was in. Only 18 states have preemption laws, she said, and the sky hasn’t fallen. Businesses have adapted.

Most of the restaurants are moving away from these products because their customers don’t want them, said bill co-sponsor Rep. Alex Valdez, D-Denver. 

One of the issues raised during the March 11 hearing is the impact of COVID-19 on plastic and takeout containers, which Valdez said has drastically increased the amount of plastic used every day. “We’ve been forced into takeout situations” or to use more plastic bags from grocery stores in the past year. 

“We are sensitive to that situation” for restaurants but it’s leading to a drastic increase in pollution, Valdez said. As to the cost of getting rid of plastics and switching to other packaging, Valdez acknowledged there will be a higher cost, around five cents per order, according to the restaurants. “Now is the best time since we’ve changed our habits so much in the past year,” he said. 

Mountain communities have difficulty recycling, according to several witnesses. Jonathan Greenberg of Telluride said they have to import most products and ship it back out, with little opportunity to recycle anything, especially difficult-to-recycle products. Most of it ends up in the landfill, he said. In Aspen, they’re 11 years away from their landfill being full. 

Omar Terrie, director of plastic food service packaging with the American Chemistry Council, said polystyrene can be recycled. “It’s not accurate” to say it’s not recycled or recyclable.

“We support the recycling market development bill” from 2020, and the 2021 version that is in competition with HB 1162. Terrie said there are alternatives to the single-use polystyrene (which he didn’t identify), but the state does not yet have the infrastructure to recycle them. Plus, polystyrene is 95% air.

“The bill is banning air,” Terrie said.

The preemption language didn’t last long; it was amended out of the bill on March 30 by the House Finance Committee. Cutter called it disappointing, adding that they had worked with opponents in good faith on the language. But removing the preemption language was the only way to get the restaurants and business community to move from opposed to neutral, and to get the bill out of the finance committee. It now is in the hands of the House Appropriations Committee.

HB 1162 has no Republican sponsorship, but another bill, backed by the American Chemistry Council, a major opponent of HB 1162, has rare bipartisan support, although not as much support outside the state Capitol.

Senate Bill 21-180 would create a grant program on recycling and composting, with fees charged to distributors that sell food service packaging.

Under the fiscal analysis, the program would generate $15 million per year starting in fiscal year 2022-23. The money, which would go to the Colorado Department of Public Health and Environment, would create new or expand existing recycling, recovery and composting operations; create markets for recycled materials; and facilitate recycling, composting, litter cleanup and education efforts.

SB 180 is sponsored by Sens. Kevin Priola, R-Henderson, and Rachel Zenzinger, D-Arvada, and in the House by Reps. Shannon Bird, D-Westminster, and Brianna Titone, D-Arvada. 

Colorado has an embarrassingly low recycling rate, Priola told the business committee, recently dropping from 17.2% to 15.9%. The national rate is 35%.

“It’s not impossible for us to do better,” he said, but Colorado lacks the necessary recycling infrastructure. Priola sees the bill as a job creator.

The Colorado Restaurant Association isn’t on board with the bill. Nick Hoover, representing the association, said the fee paid for by distributors will be pushed down to the restaurants.

“Our members do not believe it is the sole responsibility of the restaurant industry to fix Colorado’s bad recycling rates,” he said.

Environment Colorado isn’t on board either. Hannah Collazzo said the bill is premature, noting that CDPHE had been asked a year ago to review current recycling efforts, which aren’t due until after the session is over. The organization also claims the fee is “material-neutral,” meaning that the fees for a clamshell package are the same as for polystyrene, but the costs to recycle those products aren’t. And the bill will not slow down the production of materials, she said.

The bill also “perpetuates the lie” that recycling will fix the plastic pollution crisis, she said, adding that the bill will not change the markets for single-use products, and the fee is too low. 

SB 180 was approved by the Senate Business, Labor & Technology on March 22 on a 5-2 bipartisan vote and sent to the Senate Finance Committee. 

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