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State's looming plastic bag ban takes a step backward, environmentalists say

ALBANY – With much fanfare on Earth Day last April, Gov. Andrew M. Cuomo signed into law a sharply restrictive plastic bag ban. The move was hailed by environmentalists as far-reaching and vital for reducing plastic waste.

Now, environmentalists are sharply rebuking how Cuomo’s Department of Environmental Conservation has written regulations to enforce the law – which were released on the state holiday on Monday just 13 days before the statute is set to take effect.

These environmentalists, and lawmakers who pushed through the ban last year, are concerned Cuomo’s agency has weakened the restrictions in ways that could allow new, thicker plastic bags to be produced – using far more material than the cheap, plastic bags now at supermarket checkouts – and marketed as “reusable” that consumers may not keep using over the long term.

“DEC continues to overreach their authority and expand the definition of what can be allowed as a reusable bag. The law is pretty clear, and this was pointed out to them by the Legislature … that they don’t have the authority to do what they are doing in this final regulation," said Peter Iwanowicz, executive director of Environmental Advocates, an umbrella organization of groups that pressed for the ban.

“It’s a serious issue. It seems like a carve-out for the industry to create thicker bags that can be marketed as reusable," added Liz Moran, the environmental policy director at the New York Public Interest Research Group.

Both environmentalists and a plastic bag industry group noted how much the Cuomo administration likes to try to bury news about developments with the plastic bag restriction program; the state put out another set of proposed rules for the initiative over the Thanksgiving weekend.

As environmentalists complain, so, too, are industry groups, though for far different reasons. “The DEC is barreling ahead with an ill-conceived approach that goes too far, too fast and fails to take into consideration repeated requests for a pragmatic compromise,’’ Matt Seaholm, executive director of the American Recyclable Plastic Bag Alliance, said in a written statement.

Among the issues is the Cuomo agency’s definition of a “reusable bag," which it now also defines as being made of cloth “or other non-film plastic washable material." The definition of washable is loose and film plastic is permitted, under the law, to cover such things as carryout bags, newspaper bags and garment bags less than 10 mils in thickness.

Environmentalists, though, worry the administration is now paving the way for plastic bags over 10 mils thick – which are three times as thick as those contractor-grade black bags that homeowners use to clean out a garage or basement – that will be used in bags sold to consumers as recyclable at checkout stands or online. They say such super-thick bags, even if used in something billed as recyclable, will use massive amounts of plastic ingredients.

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Lawmakers have been expressing their concern with the state environmental agency for more than a month. Assemblyman Steve Englebright, a Long Island Democrat who sponsored the plastic bag ban bill in the Assembly last year, earlier this month wrote the Cuomo agency expressing concerns that the plastic bag ban rules under consideration would create loopholes that “were neither intended nor authorized.’’

“We’re disappointed in the final regulations," Stephen Liss, the counsel to Englebright, who chairs the Assembly environmental conservation committee.

Senate Finance Committee Chair Liz Krueger, a Manhattan Democrat, said the thickness provisions for the definitions of “film plastic” and “reusable bag” are “not only unnecessary but will result in the distribution of free, thicker single-use carryout bags."

In her own letter to the DEC, Krueger said the new thickness requirements – based on experiences in other states with plastic bag restrictions – “would leave New York worse off than we were with no ban in place."

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Environmental organizations Tuesday said the DEC should have sought approval from the Legislature if it wanted to change the 2019 law as far as it did. Now, these groups say, it’s time for lawmakers to step in to clean up the rules the DEC is set to enforce starting next month.

Even the timing of the ban was cause for some confusion Tuesday. In one set of documents, DEC said the ban takes effect March 1 – as required in the law. In another online agency document, March 14 was the date.

The DEC insisted the new rules do not relax the 2019 law, but that they “clarify” that reusable bags must meet certain “strict standards for use, thickness and washability.” The agency said it specifically deleted an earlier proposed rule that would have allowed DEC, on its own, to alter certain exemptions.

As such, the agency said, the rules do not go as far as environmental groups and lawmakers contend; it added a bag thickness provision for reusable bags that was also not included in the final rule.

By its own estimate, New Yorkers used about 23 billion plastic bags each year, the state says. DEC projects 85% of those bags end up in landfills after being used for just an average of 12 minutes each by consumers.

“The scope of the law that was passed is a plastic bag ban. There were no specifications for film plastic," Moran of NYPIRG said.

“The intent of the law was to reduce the state’s use of plastic … This would do the opposite with the creation of thicker plastic bags," she said, adding that the new DEC rules appear “to offer a way for the industry to get around" a near-total plastic ban.

If the industry that makes and distributes plastic bags and their components was feeling like the DEC rules gave it a gift, there were no indications of that Tuesday. Seaholm, the plastic bag trade group head, said the state has failed to provide adequate outreach to both retailers and consumers and that the ban will end up creating a shortage of paper bags.

“Clearly, the DEC is not interested in educating New Yorkers about the implications of this ban, but rather prefers to keep them uninformed and in the dark about the confusion and chaos that’s to come," Seaholm said.

In its release on the final set of rules' being adopted — announced while the agency and every other department of the state was closed Monday for the president’s weekend holiday — the DEC said it is launching a public awareness campaign and giving away more than 270,000 reusable bags to low-income New Yorkers.

New York and five other states last year enacted legislation banning plastic bags; California, in 2014, was the first to pass such a ban. A number of countries have long banned the bags, as have a number of large and medium-sized cities in the United States.

The new rules enforcing the law do not take effect until March 14 — two weeks after the law becomes effective.

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