A judge has quashed a bid by a Tempe councilmember to challenge a state law that bars cities from regulating plastic bags and mandating recycling.
Lauren Kuby was working on an ordinance to restrict the use of plastic bags last year when the legislature voted to preempt such laws. So she sued. But on Thursday, Maricopa County Superior Court Judge Douglas Gerlach said she has no legal right to sue because Tempe has yet to enact her plan. The judge said he could rule on any conflict between state law and her proposal only after the Tempe council enacted it into law. But Gerlach conceded there is a risk in that approach.
A separate law approved earlier this year allows the attorney general to investigate complaints by lawmakers that a city ordinance runs afoul of state laws. More to the point, a finding of illegal conflict paves the way for a city to lose millions in state revenue sharing.
"The state wants to take a position that the issue is not ripe until the city passes the ordinance. But then the state is in the position of imposing a rather serious penalty on the city if they do that. So it's as if they're damned if do and they're damned if they don't," Gerlach says.
In dismissing Kuby's complaint, Gerlach leaves unresolved the larger question of how much power city councils throughout the state have to enact local laws have when state lawmakers have other ideas. This lawsuit remains alive only because the city of Bisbee intervened. But Bisbee's arguments are based not on the illegality of state preemption but that its plastic-bag ordinance was already on the books before before the 2015 law.