By Kelly O’Connor
New York City residents use an estimated ten billion plastic shopping bags annually, resulting in 1,700 tons of residential garbage per week.[i] Despite the fact that city government has long recognized the great environmental and financial costs of single-use plastic bags, local proposals to reduce the number of carryout bags in the territory have been met with vehement resistance for over a decade.[ii]
In 2016, the New York City Council narrowly passed a bill that would impose a five-cent fee on plastic and paper carryout bags from grocery, convenience, and retail stores, designed to incentivize consumers to bring their own reusable shopping bags and thus reduce waste and bag pollution across the city.[iii] However, state legislators moved quickly to prohibit implementation of the local measure.[iv] The day before the bag fee was to go into effect, Governor Cuomo signed a bill preempting the City Council’s enactment by placing a moratorium on local laws that impose a tax or fee on single-use bags by cities of one million or more.[v] Invoking the “substantial state concern” doctrine[vi] and state preemptive power, the state government removed the bag-related environmental issue from the hands of the city government, vowing to fashion its own solution.[vii]
Like the federal Constitution, the New York State Constitution represents the will of its people. In Article IX of the state Constitution, the citizens of New York assert their right to reallocate power for “effective local self-government and intergovernmental cooperation.”[viii] In furtherance of this aim, the Article provides for the liberal construction[ix] of local governments’ “rights, powers, privileges and immunities,”[x] among them, legislative authority over local affairs.[xi] Though the state retains much of its legislative powers, the Constitution clearly provides for municipal self-governance and freedom from state intrusion with regard to local matters.[xii]
Article IX, Section 2 both affords local governments the power to adopt laws relating to its own “property, affairs or government,”[xiii] so long as they are not inconsistent with the Constitution or general state law, and affirmatively limits the ability of the state to legislate with respect to these areas except by general law or by special law in accordance with specified procedures and local solicitation.[xiv]
A “general law,” by which the state may freely act with regard to local property, affairs, and government, is one that “in [its]terms and in [its]effect” applies to all New York localities alike.[xv] A “special law” is a law that applies to one or more but not all localities in the state,[xvi] which may be enacted only at the request of the locality (commonly termed a “Home Rule message”) [xvii] or, except in the case of New York City, with a gubernatorial certificate of necessity.[xviii]
The state government may circumvent the Constitution’s safeguards against special legislation and impose its will on a particular locality if the subject matter of the law implicates a “substantial state concern.”[xix] Where the state government asserts a substantial state interest in connection with an enactment that applies to fewer than all municipal corporations of the state, New York courts employ the highly deferential reasonable relationship standard of review and frequently uphold legislation that appears to regulate a local matter notwithstanding the absence of a Home Rule message.[xx] If there exists a reasonable nexus between the State’s statute and the interest identified by the Legislature, the law will likely meet the low threshold of constitutionality and supersede local authority over the matter. The substantial state concern doctrine dramatically dilutes the Home Rule power of New York City particularly, as almost all seemingly local matters could have spillover effects statewide, given its position at the core of New York’s population and economy.[xxi]
Constitutional prohibitions and procedural constraints on special legislation promote laws that aim to serve common statewide interests, ensure fairness and equal treatment, and discourage legislation that confers benefits or imposes burdens on only select individuals.[xxii] Special laws may be appropriate, however, when the unique circumstances or concerns of a class of localities necessitate legislation that would be improvident if applied to smaller, less populated, or otherwise materially different localities.[xxiii] When an act of the Legislature does not apply uniformly throughout the state, but rather targets a class of municipalities sharing a specified characteristic, such as minimum population, it may be upheld if the stipulated common criterion is “reasonably related to the subject of the statute.”[xxiv] Even an act, which by its specified conditions could encompass only one municipality at the time of its passage, may be found constitutional if there exists “a reasonable prospect that more than one member will constitute the class in the foreseeable future.”[xxv] Though the prohibition on special laws in the absence of a Home Rule message imposes a procedural check on the State’s ability to interfere with the affairs of a municipality, the lenient reasonable relationship inquiry and “open class” principle have reduced the force of the provision by allowing state legislation that plainly targets the affairs of one locality to stand.[xxvi]
The scope of Home Rule in New York is additionally limited by the principle of state preemption.[xxvii] Stemming from Article IX’s provision that local enactments may not be inconsistent with the general laws or Constitution of the state,[xxviii] the doctrine displaces otherwise valid local acts that are found to conflict with state law, address statutorily-prohibited subject matter, or enter a field of regulation already dominated by comprehensive state legislation.[xxix] Despite the Constitution’s grant of relatively broad Home Rule power,[xxx] New York localities are frequently constrained in their exercise of autonomy by the existence of preemptive state statutes or state occupation of a regulatory field.
Though the state-local power struggle regarding the regulation of single-use shopping bags was ultimately resolved through state legislation, which will take effect this March,[xxxi] the conflict illustrated the indistinct limits of New York Home Rule, blurred by the doctrine of substantial state concern and preemption.
The New York City Council, a local lawmaking body elected by the people of the city as required by the state Constitution,[xxxii] enacted Local Law No. 63 to “reduc[e]the use of single-use carryout bags in the city,” with the ultimate aim of decreasing waste and litter in the streets and waterways, and reducing “contamination of the residential recycling stream” and “flooding or sewer overflows.”[xxxiii] In a 2016 Committee Report, Council members in support of the amendment to the administrative code identified a host of problems relating to the City’s “property” and “affairs” caused by single-use shopping bags—among them, environmental damage and pervasive litter within the city’s borders, high waste management costs borne by city residents, and exacerbated risks of flooding in the city’s low-lying neighborhoods.[xxxiv]
Expressly preempting the Council’s bill, the State established a moratorium on the implementation of any local law “by a city with a population of one million or more, related to charging a fee for carryout bags.”[xxxv] Though the state law does not target any one locality by name, it is, “in effect,”[xxxvi] solely applicable to New York City, the only municipal corporation in the state meeting the population condition.[xxxvii] Because the State’s measure was enacted in the absence of a Home Rule message, relates to the property and affairs of New York City,[xxxviii] and has such exclusive effect, Article IX’s protections against special legislation are implicated.
Under New York constitutional law, even where state legislation relates directly to the affairs of a particular locality, it may be deemed a “general law” if the matter to be regulated is “of sufficient importance to the state generally.”[xxxix] After signing the state bill, Governor Cuomo asserted in a statement that the environmental problems caused by single-use bags are not a local issue, but rather a statewide challenge requiring a statewide solution.[xl] Recognizing the need for legislative action to address the matter but taking issue with some of the particulars of the City Council’s law,[xli] the Governor seemed to proffer regulatory uniformity with regard to single-use plastic bags as the justification for displacing the local action.[xlii] Though state interest in a unified regulatory regime has been upheld as a valid “substantial state interest,”[xliii] the statute at issue must bear a reasonable relationship to the achievement of that goal.[xliv]
The State’s enactment, rather than instituting a universal policy to address the environmental issue, simply eliminates the city’s bag fee measure and fails to introduce an alternative solution to take its place, an outcome that directly conflicts with the stated reason for overriding local authority.[xlv] Although the State pledged to establish a “task force” to address the matter and propose statewide legislation in the future,[xlvi] the invalidation of the City’s law that would have operated in the interim does not reasonably relate to uniform regulation of the issue, especially as similar bag fee laws of other New York localities remained in effect.[xlvii] Even with the benefit of the vast legislative deference granted under the reasonable relationship standard, the State’s deregulatory statute can scarcely be seen to advance the asserted aim of statewide regulation, as it leaves the single-use bag issue that plagued New York City completely unchanged.
Even if a sufficiently reasonable relationship between the asserted state concern and statutory terms could be found, the State must still establish a “reasonable ground” for designing a law that is not general in its effect.[xlviii] The New York Court of Appeals has long held that legislation that does not apply to all of the state’s localities alike may still be deemed “general,” and thus passable in the absence of a Home Rule message, if it creates a justifiable class.[xlix] Though the population condition to the State’s single-use bag law encompasses only New York City, it facially creates an open “class” within the meaning of state law, as other municipalities may at some point in the future reach the threshold and become subject to the law.[l] However, the population criterion is a valid limit to the law’s applicability only if the characteristic is reasonably related to the subject matter of the legislation. That at the time of the State’s enactment other New York areas had bag fee laws in place akin to the one at issue, which were unscathed by the State’s action, suggests that the statute’s population distinction serves merely as an “identifying mark of the locality […] for which the Legislature is enacting a special law.”[lii] Where the asserted substantial state interest is consistent regulation of single-use bags through a singular statewide regime, but the preemptive law permits all but one existing local law on the matter to endure, there appears to be no reasonable ground for classification.
Although the principle of preemption and judicially-developed doctrines described above have narrowed the scope of Home Rule in New York, the State’s deregulatory measure, if challenged, would likely not have withstood constitutional review, as it demonstrably failed to advance the identified substantial state concern and its applicability turned on a pretextual classification not reasonably related to its aim.
[i] See Laura Parker, New York State to Ban Plastic Bags—Here’s Why, National Geographic (March 29, 2019), www.nationalgeographic.com/environment/2019/03/new-york-state-plastic-bag-ban-explained/.
[ii] See J. David Goodman, 5¢ Fee on Plastic Bags Is Approved by New York City Council, N.Y. Times (May 5, 2016), www.nytimes.com/2016/05/06/nyregion/new-york-city-council-backs-5-cent-fee-on-plastic-bags.html?module=inline (detailing Mayor Bloomberg’s 2008 efforts to remedy the problems posed by plastic bags); Matt Flegenheimer, New York City Council Hearing on Fee for Bags Becomes Heated, N.Y. Times (November 19, 2014), www.nytimes.com/2014/11/20/nyregion/new-york-city-council-hearing-on-fee-for-bags-becomes-heated.html?module=inline.
[iii] 2016 N.Y.C. Local Law No. 63 – A local law to amend Title 16 of the administrative code of the city of New York through the addition of chapter 4-F to reduce the use of carryout bags through imposition of a fee on consumers. legistar.council.nyc.gov/View.ashx?M=F&ID=4559943&GUID=A7063A49-6759-4EA8-B640-93364AB175E6.
[iv] See Vivian Yee, New York City’s Plastic Bag Fee Is Delayed Amid Scrutiny in Albany, N.Y. Times (June 7, 2016), www.nytimes.com/2016/06/08/nyregion/new-york-citys-plastic-bag-fee-is-delayed-amid-scrutiny-in-albany.html?action=click&module=RelatedCoverage&pgtype=Article®ion=Footer.
[v] S. 4158, 2017-2018, Reg. Sess. (N.Y. 2017) www.nysenate.gov/legislation/bills/2017/s4158. See also Samar Khurshid, After Superseding City Cuomo’s Plastic Bag Panel Punts, Gotham Gazette (January 20, 2017), www.gothamgazette.com/?id=7424:after-superseding-city-cuomo-s-plastic-bag-panel-punts; Jesse McKinley, Cuomo Blocks New York City Plastic Bag Law, N.Y. Times (February 14, 2017), www.nytimes.com/2017/02/14/nyregion/cuomo-blocks-new-york-city-plastic-bag-law.html?module=inline.
[vi] Then Chief Judge Cardozo first articulated the controlling substantial state concern doctrine in Alder v. Deegan: “[I]f the subject be in a substantial degree a matter of State concern, the Legislature may act, though intermingled with it are concerns of the locality […] if the affair is partly State and partly local, the city is free to act until the State has intervened.” 167 N.E. 705, 714 (N.Y. 1929) (Cardozo, J., concurring).
[vii] See Justification of S. 4158, 2017-2018, Reg. Sess., www.nysenate.gov/legislation/bills/2017/s4158. “A more thorough examination […] is needed in order to investigate all potential impacts and possible alternative approaches and to allow for public input. Such a review shall afford the state and its residents the opportunity to analyze the most effective methods of decreasing the use of and increasing recycling of single use paper and plastic carryout bags to effectively manage the waste stream and assist in environmental protection and management.” (emphasis added).
[viii] N.Y. Const. art. IX, § 1.
[ix] Id. art. IX § 3(c).
[x] Id. art. IX, § 1.
[xi] Id. art. IX, § 1(a).
[xii] See Jeffrey M. Stonecash, New York, in Home Rule in America: A Fifty-State Handbook, 303, (Dale Krane, Platon N. Rigos & Melvin B. Hill Jr. eds., 2001).
[xiii] N.Y. Const. art. IX, § 2(c).
[xiv] Id. art. IX, § 2(b)(2).
[xv] Id. art. IX, § 3(d)(1).
[xvi] Id. art. IX, § 3(d)(4).
[xvii] Id. art. IX, § 2(b)(2)(a).
[xviii] See James D. Cole, Constitutional Home Rule in New York: “The Ghost of Home Rule,” 59 St. John’s L. Rev. 713, 725 (1985), note 40.
[xix] See Adler, supra note 6.
[xx] See Michael A. Cardozo, Home Rule in New York: The Need for Change, 38 Pace L. Rev. 90, 91 (2017).
[xxi] See Adler, supra note 6 at 713. In his first articulation of the substantial state concern doctrine, Cardozo pointed to relatively unsubstantial examples from the “wide field” of purely local interests, the power over which the City government would retain, including the laying out of parks, building of recreation areas, and organizing of public concerts. The opinion makes clear that the zone of matters implicating both state and local concerns, wherein State legislation would prevail, is vast.
[xxii] See Richard Briffault & Laurie Reynolds, Cases and Materials on State and Local Government Law, 299–301 (West Academic Publishing 8th ed. 2016).
[xxiv] Farrington v. Pinckney, 133 N.E.2d 817, 822 (N.Y. 1956) (sustaining a special law applicable to counties of one hundred thousand or more).
[xxv] Hotel Dorset Co. v. Trust for Cultural Res. of N.Y., 63 A.D.2d 157, 166, (N.Y. Sup. Ct. App. Div. 1st Dep’t 1978) (finding that a law applicable only to the Museum of Modern Art is constitutional general legislation because other cultural institutions may join the class in the future).
[xxvi] See Cardozo, supra note 20 at 114.
[xxvii] See Albany Area Builders Assn. v. Town of Guilderland, 546 N.E.2d 920, 922 (1989) (finding that a local land use regulation was preempted by a comprehensive scheme of general state laws regulating the funding of roadway improvements).
[xxviii] N.Y. Const. art. IX, § 2(c).
[xxix] See Cardozo, supra note 20 at 101, 115.
[xxx] See generally Stonecash, supra note 12.
[xxxi] Enacted as part of the 2019–2020 budget, Article 27 of the State’s Environmental Conservation Law has been amended to include a prohibition on the distribution of single-use plastic bags. The law further authorizes local governments to impose a five cent fee on carryout paper bags provided by retailers. www.nysac.org/files/Plastic%20Bags%20Webinar%20Presentation1.pdf.
[xxxii] N.Y. Const. art. IX, § 1(a) provides that “[e]very local government, except a county wholly included within a city, shall have a legislative body elective by the people thereof.”
[xxxiii] 2016 N.Y.C. Local Law No. 63 § 16-494 (detailing the reporting requirements under the City law with reference to the overarching purposes of the enactment).
[xxxiv] The Committee on Sanitation and Solid Waste Management found that single-use carryout bags heighten the risk of flooding in parts of the City, pose grave threats to marine life in the surrounding waters, and cost the city approximately $10 million per year in waste management expenditures. See Committee Report (May 4, 2016) legistar.council.nyc.gov/view.ashx?m=f&id=4424512&guid=7e4cf794-eb2d-4011-8f5e-a4d88fa6f338.
[xxxv] S. 4158, 2017-2018, Reg. Sess., supra note 5.
[xxxvi] See N.Y. Const. art. IX, § 3(d)(1).
[xxxvii] See Samar Khurshid, Early in Albany Session, Plastic Bag Fee Sparks Home Rule Debate, Gotham Gazette (January 20, 2017), www.gothamgazette.com/state/6722-early-in-albany-session-plastic-bag-fee-sparks-home-rule-debate.
[xxxviii] In Adler, supra note 6 at 707, the majority emphasized that the terms “property, affairs, or government” as protected under Article IX must be given “limited meaning.” The court held that the health and welfare of New York City residents affected the health and welfare of the state as a whole, and thus implicated statewide, not merely local, affairs.
[xxxix] See Hotel Dorset Co., supra note 25 at 373, “[i]f the subject matter of the legislation is of sufficient importance to the State generally, the legislation cannot be deemed a local law even though it deals directly with the affairs of a municipality.” See also Adler, supra note 12.
[xl] See Statement from Governor Andrew M. Cuomo (February 14, 2017), www.governor.ny.gov/news/statement-governor-andrew-m-cuomo-126.
[xli] In statements to the press, Governor Cuomo and state lawmakers criticized the local measure on a number of grounds. First, the local law directed the profits that would be generated from bag fees to the merchants that provided them, instead of earmarking the funds to serve a government purpose. The Council could not have enacted a law with such a provision, however, because the fee would be deemed a tax, which local governments may not levy without approval from the State. See N.Y. Const. art. XVI, § 1. See also Cardozo, supra note 20 at n.30. State actors also professed concern that the fee would operate as a regressive tax on the poor, though the City’s enactment contained numerous exemptions to remedy this potentiality. See Statement from Gov. Cuomo, supra note 40; see also Khurshid, supra note 37.
[xlii] See Statement from Gov. Cuomo, supra note 40.
[xliii] See Albany Bldrs. v. Guilderland, 74 N.Y.2d 372, 377 (N.Y. 1989) (explaining that “the need for State-wide uniformity in a given area” qualifies as a substantial state interest justifying the displacement of a locality’s Home Rule interest).
[xliv] See New York City v. Patrolmen’s Assn, 89 N.Y.2d 380, 392 (N.Y. 1996) (where “the act does not and cannot accomplish the most clearly expressed legislative objective, of achieving State-wide uniformity […] because all other jurisdictions but the City retain the right,” the legislation unconstitutionally targets one locality and the stated interest is thus invalid).
[xlv] See generally Richard Briffault, Nestor M. Davidson, & Laurie Reynolds, The New Preemption Reader: Legislation, Cases, and Commentary on the Leading Challenge in Today’s State and Local Government Law, 11–18 (2019) (discussing the prevalence of sweeping state preemptive measures designed exclusively to block local regulations without replacing them in order to leave a field completely unregulated.).
[xlvi] See Statement from Gov. Cuomo, supra note 40.
[xlvii] Because Suffolk County was not brought within the purview of the State’s legislation due to its population size, the locality’s ordinance imposing a five cent fee on paper and plastic bags escaped preemption. See patch.com/new-york/huntington/suffolk-county-approves-5-cent-fee-paper-plastic-bags.
[xlviii] See Farrington, supra note 24.
[xlix] See, e.g., id.; Matter of Henneberger, 155 N.Y. 420 (N.Y. 1898).
[l] See, e.g., In the Matter of the Application of Church 92 N.Y. 1 (N.Y. 1883); People v. Dunn, 157 N.Y. 528 (N.Y. 1899); Farrington, supra note 24
[lii] See Henneberger, supra note 49.