In a blow to environmentalists and several local governments, a Florida appeals court struck down a Coral Gables ordinance to ban Styrofoam containers from restaurants, supermarkets and other food establishments.
The 3rd District Court of Appeals Wednesday rejected a previous ruling by a Miami-Dade County circuit judge who found Coral Gables was not prevented from banning products made with polystyrene, contrary to what the Florida Retail Federation alleged in its lawsuit challenging the city’s action.
The decision by the three-judge panel upholds a state law passed in 2016 that prohibits local governments from regulating polystyrene food containers, also known as Styrofoam, and retroactively prohibited any related government ordinances.
Coral Gables Vice Mayor Vince Lago, who wrote the ordinance, said Wednesday the ruling is “a shame” and “a step in the wrong direction.”
“It’s an injustice to the community we serve,” said Lago, who drives an electric car and runs his house on solar power. “We have to not only walk the walk, but talk the talk.”
Lago said the city worked hard to get resident and business input on the ordinance through public comment, a one-year educational campaign and eventual buy-in from the Coral Gables Chamber of Commerce. The city passed the measure in 2016.
In a statement, the Florida Retail Federation praised the court decision and said business owners are “now protected from post-2016 regulation by aggressive municipalities or counties as a result of [the federation’s] advocacy efforts.”
“Florida’s retailers have a vested interest in a healthy and sustainable Florida,” said the federation’s president, Scott Shalley, adding that the ruling would prevent “a patchwork of regulations by the more than 400 local governments.”
Miriam Ramos, the city attorney for Coral Gables, said she is disappointed in the court’s ruling. It doesn’t just target environmentally friendly initiatives, but also the concept of home rule.
“Local municipalities should be able to choose the regulations that are right for their populations,” she said. “Municipalities have been fighting back ... what’s important to Coral Gables isn’t the same as what’s important to Fort Lauderdale.”
Ramos said her legal team is working through the 14-page order and preparing a recommendation to present at the next city commission meeting Aug. 27.
Wednesday’s ruling comes as municipalities in South Florida have made similar efforts in recent years to ban plastic straws and bags, hoping to reduce waste they argue pollutes the ocean and harms sea life.
“It’s a sad day for environmentalists and it’s a sad day in Miami Beach,” said Raul Aguila, attorney for the city of Miami Beach, which is weighing how to proceed with a planned ban on plastic bags. “That’s the consequence when the state declares that one size fits all, which is not the case.”
Aguila said the court’s decision would not affect the city’s current ban on Styrofoam or plastic straws because those ordinances were “grandfathered in” before the state law regarding polystyrene was passed in 2016. He also said Miami Beach would support the city of Coral Gables if the city chose to appeal Wednesday’s decision.
The court’s ruling could affect how governments handle other local ordinances on banning plastic products, Aguila said. Municipalities could be reluctant to pass local ordinances that challenge state law in part because of a Florida preemption law passed earlier this year, which partly says municipalities can be on the hook for attorney costs if they lose legal challenges to state laws.
“That kind of puts a chilling effect on municipalities’ efforts... Obviously, this court decision means that we’re going to have to study the law further moving forward regarding plastic bags,” said Aguila. “We are proceeding cautiously.”
Many local businesses said they’ll continue to go Styrofoam-free despite the lack of enforcement, and the city said it will send a letter to the governor’s office to express its disappointment in the preemption of its rule.
Mark Trowbridge, president of Coral Gables Chamber of Commerce, said despite the decision, most businesses in the city have already phased out using Styrofoam.
“I think we only had one restaurant who was struggling to come into compliance because they served cafecito in a Styrofoam cup,” said Trowbridge, who added he believes rewarding Styrofoam-free businesses is a better way to push retailers to find alternative products. In April, the chamber rolled out a “green business” incentive program, like giving business owners who go Styrofoam-free decals to place in front of their stores.
“Even though this was a negative ruling, in the long run moving forward … I don’t want the city to be concerned that folks are going to throw everything away.”
State preemption has been a recurring theme in Tallahassee. When the legislative session ended earlier this year, local governments across South Florida were stripped of the ability to require tree removal permits and regulate vegetable gardens. Local governments also face new restrictions on community redevelopment agencies.
Other municipal laws were targeted but ultimately survived, including the ability to ban plastic straws, regulate short-term rentals and ban businesses from using single-use carryout plastic bags. Coral Gables bans those bags.
Jennifer Rubiello, state director of Environment Florida, said the decision would significantly hinder local communities from curbing plastic waste, but municipalities should “lead by example.”
“Single-use plastic pollution is a big problem in Florida,” she said. “Nothing that we use for a few minutes should pollute our wildlife and our waterways for years... it’s incredibly disappointing.”
The News Service of Florida contributed to this report.