Opinion: Calculating the fee on disposable bags


The Boulder City Council is in the process of imposing a fee on single use paper and plastic bags, the kind stores now give away to customers. Local governments have the power to impose such “special fees” on many activities. But because of the Taxpayers Bill of Rights (TABOR – Article X, Sec. 20 in the Colorado Constitution) it’s important to know what the constraints are, so that the city can maximize protection of the environment while avoiding a lawsuit claiming that this fee is a tax and requires a TABOR vote.
The council would do well to learn something about the field and not simply rely on consultants. I have seen experts make mistakes, or miss alternative approaches because they didn’t think broadly enough.
There are a number of cases, both national and local, that interpret the 5th Amendment’s protection of private property. Local governments have been granted a lot of flexibility in setting fees, perhaps sometimes more than warranted, but this flexibility is not unlimited. Here is my very brief summary of some of the more relevant cases; they are all available on the Web. (I am not an attorney, but have been interested in this policy arena for some decades.)
Nollan v. California Coastal Commission – This case lays out the need for a “nexus” as a minimum requirement for a specific exaction. The CCC tried to exact a public easement to the beach as part of a building permit review. But the Supreme Court said that there was no direct link – no nexus -between the need for the easement and the impact of that particular construction.

Dolan v. City of Tigard – This case lays out “rough proportionality” as another requirement for a specific exaction. The city wanted certain improvements along a creek in exchange for approving a neighboring building expansion. The Supreme Court said that the exaction being requested was out of proportion to the project’s impacts.

Bloom v. Fort Collins – Distinct from the above cases that relate to approvals for specific projects, legislatively enacted fees to pay for legitimate public purposes need only be “reasonably related” to overall costs. This Fort Collins street frontage fee to pay for road maintenance was approved by the court, even though it might not have met the Nollan/Dolan standards.

Krupp v. Breckenridge – This case reinforced the Bloom decision. It also added that legislatively enacted fees (like water or sewer fees) could be set by class (i.e. did not need to be determined individually), and confirmed that a Nollan/Dolan specific analysis was not required.

FASTER lawsuit – The 2009 FASTER fee on renewal of auto registration to pay for bridge maintenance was challenged this May by the TABOR Foundation on the grounds that it is a tax, not a fee, and thus requires a TABOR vote. If the Colorado court digs into the details, the outcome may require that fee calculations be more distinct and specific.

Using disposable bags has “negative externalities” , i.e. costs that affect others that are not recovered in the price. Dealing with these externalities typically involves prevention (limiting the activity in the first place) and/or mitigation (controlling the negative effects after the fact.) So costs that might be included in a bag fee could include recycling, composting, picking up bags left lying around, buying carbon offsets for greenhouse gases produced in manufacture or disposal, etc.
Bloom, Krupp, and a reasonable resolution of the FASTER case, together with Boulder’s long history of recycling and our policy goal of addressing GHG emissions that provide the clear public purpose, should support a bag fee that funds a comprehensive approach to addressing the impacts and is also easily defensible in court.
Wednesday’s Camera article pointed out that a flood could make uninhabitable the two city office buildings on Arapahoe just west of Broadway. Global warming will lead to more extreme weather events, which will almost certainly expand the flood area and further limit development. The City Council needs to put a hold on the “Civic Center” planning project until these and other important needs and constraints (open space, shading, views, parking, costs, etc.) are evaluated. Encouraging citizens to fantasize about what might be done, as happened at the first public meeting, without making very clear what issues must be dealt with is counterproductive.


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