For years, cities have attempted to curb pollution and beef up sustainability efforts by regulating products deemed harmful to the environment, such as pesticides and single-use plastics.
In 2016, Coral Gables set out to do just that by passing a city law banning the use of expanded polystyrene, otherwise known as the trademark Styrofoam. The ordinance prohibits the city from purchasing any products made of polystyrene; it also bars vendors, contractors, and special-event organizers doing business with the city from using such products.
The trouble came when Coral Gables tried to prohibit businesses from using polystyrene. The Florida Retail Federation, a lobbying group that represents corporations such as Publix, Walmart, Target, and CVS, sued to prevent the city from enforcing the ban and ultimately won last week.
"We're obviously disappointed," Coral Gables City Attorney Miriam Soler Ramos says. "I can't tell you I'm entirely surprised. It's disappointing on the environmental front and the home-rule front. Municipalities are under attack."
Florida's preemption laws prohibit cities, often at the behest of wealthy interests and lobbyists, from enacting laws regulating everything from firearms and vacation rentals to ridesharing services and the minimum wage. Preemption laws also bar cities from regulating polystyrene, plastic bags, and plastic straws.
Last June, Surfside passed a law banning most single-use plastics, including bags and utensils. Less than two months later, the city repealed the ban after receiving a letter from the Florida Retail Federation threatening a lawsuit. Gainesville and Palm Beach also had to repeal their bans last year, and St. Augustine Beach was on track to do the same.
"The Legislature wants to preempt more and more," Soler Ramos says. "While I acknowledge that there are areas of the law where preemption makes sense, I think they're few and far between. Continuing to preempt areas of law takes powers away from elected officials. What's important in Coral Gables may not be what's important in Orlando or Pensacola. Having one-size-fits-all doesn't work."
A Miami-Dade circuit judge in 2017 sided with Coral Gables in the lawsuit brought against the retail federation by ruling that the preemption laws were unconstitutional and the city could enforce the polystyrene ban. The federation appealed, but in the meantime, Coral Gables passed a law prohibiting the sale, use, and distribution of plastic bags by retailers in the city.
Florida's Third District Court of Appeal then reversed the circuit court's decision, essentially siding with the retail federation and the state's preemption laws. But Coral Gables took things one step further and appealed for the Florida Supreme Court to hear its case. Last week, the Supreme Court declined.
Reached by New Times, the Florida Retail Federation declined to comment on the decision.
So what happens now? The city won't repeal the ordinances, but it will suspend enforcement of the plastic bag and polystyrene bans at restaurants and other businesses. The city can continue to require vendors, contractors, and special-event organizers to comply with the ban. And the city itself will continue purchasing alternatives.
Coral Gables Vice Mayor Vince Lago, who sponsored the ordinances to ban plastic bags and polystyrene, says he hopes city businesses will continue to voluntarily find alternatives to polystyrene and plastic bags.
"The businesses that represent Coral Gables, the mom-and-pops, understand the value of environmental stewardship," he says.
The city spent months executing an educational campaign to persuade businesses to buy into the bans. Lago says businesses were given a grace period to use their remaining stock of plastic bags and polystyrene products before transitioning to reusable or recyclable products. Lago says the city wanted to roll out the bans in a way that wouldn't be overly burdensome.
Mark Trowbridge, president and CEO of the Coral Gables Chamber of Commerce, tells New Times in an email that most businesses continued using alternatives to polystyrene even when the appeals court overturned the ban.
"They had made the investment, researched alternatives, and found that their customers were most pleased with their sustainable efforts," Trowbridge says. "It was a win/win and, of course, focused on incentivizing their best green practices."
Lago says the city will consider ways to continue incentivizing businesses to adopt environmentally friendly practices. The city and the chamber, for example, offer the Green Business Certification Program, whose participating businesses are recognized during city commission meetings and chamber events; on the city and chamber's websites, social media pages, newsletters; and on the city's "Green Map."
And Lago wants to talk to commissioners about finding a way to challenge preemption laws.
"Preemption tells local communities that [the state] knows better, which is far from the truth, in my opinion," he says. "We may need help from other communities to band together and send a strong message to state leaders. This isn't just about local politics. We need to band together and send the message that preemption is not the answer or the route that should be taken."
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