State Seeks To Put Lid On Styrofoam Fight

By News Service of Florida

Published November 27, 2019 at 8:59 AM EST

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.”