DENVER – The trend to trash or tax plastic bags to reduce landfill waste is sweeping across Colorado like a Garbage Pail Kids fad. Denver is now debating the bag tax despite a lawsuit challenging the constitutionality of Aspen’s bag tax that’s deemed a “fee.”
Denver City Council plans to consider the proposed tax on Aug. 27. Denverites got a preview this week when Councilwoman Debbie Ortega pitched the proposed 5-Cent “fee” for paper and plastic grocery bags to the city’s Health, Safety, Education and Services committee.
If passed, the fee would generate up to $1.9 million a year for the city which would retain 3-cents assessed for each bag. And 2-cents per bag would go to grocers for tracking and emitting the bag fee revenue to the city.
Ortega said the fee revenue would be used to create public awareness, distribute reusable plastic bags, instruct grocers on how to implement the program, pick up litter in parks and waterways, and pay for administration and enforcement.
Critics argue that it’s a tax disguised as a fee – in violation of the Taxpayers Bill of Rights (TABOR) amendment – and that it unfairly targets grocers. TABOR requires voter approval of tax increases.
Aspen City Council passed a 20-cent tax on paper bags in 2011, and declared it was a fee that would fund the Waste Reduction Account – not the city’s general fund. But, the Mountain States Legal Foundation filed a lawsuit alleging the fee is a tax in violation of TABOR – a court decision is still pending.
“By levying a tax without the vote of the people, defendants have violated the rights of plaintiff’s members to vote on the imposition of new taxes, guaranteed by TABOR,” states the lawsuit that demands repayment with 10 percent interest to Aspen taxpayers.
Denver legal staff is working on the language of its bag fee ordinance to avoid a similar lawsuit.
The bag fee would be imposed on stores of 1500 square-feet or greater and that generate at least 2 percent of revenue from food product sales. Ortega said that would include Target and Wal-Mart as well as grocers. Convenience stores would be exempt.
Mary Lou Chapman, president of the Rocky Mountain Food Industry Association, said that her members “object to the targets only being grocery stores.”
Chapman questioned why the fee is not assessed on all stores and newspapers that use plastic bags. The costs of processing the fee, counting bags doled out to customers and producing mandated signage to educate consumers, she said, would not be recovered by a 2-cent per bag share of the fee.
Janna Six of Alliance for Sustainable Colorado endorsed the bag fee and noted that Vitamin Cottage discontinued using plastic bags in 2009. She said that Denver has the opportunity to be on the forefront of the trend to reduce trash.
“Does the city council want its legacy to be the organization that created regulations for marijuana or moved the city forward for a bag fee forever?” asked Six.
Denver City Council plans to again consider the proposed tax on Aug. 27.
In Colorado, the trend began in 2009 when then Democrats Rep. Joe Miklosi and Sen. Jennifer Viega, both of Denver, sponsored Senate Bill 156 to impose a statewide restrictions on plastic bags used by large retailers. The legislation was ultimately defeated.
Telluride banned plastic bags and imposed a 10-cent “Advance Recovery Fee” on paper bags in 2010.
Basalt Board of Trustees passed a ban on plastic bags and a 10-cent tax on paper bags in 2011, but repealed it and placed the initiative on the ballot in April 2012. Voters rejected it.
Carbondale Board of Trustees approved a similar ordinance with a 20-cent tax on paper bags in 2011, but citizens successfully petitioned to put the question to the voters in April 2012. The tax passed by a narrow margin of 90 votes.
In 2012, Boulder City Council approved a 10-cent fee for paper and plastic bags. This year, Breckenridge Town Council passed an ordinance that requires all retailers to charge a 10-cent fee on paper and plastic bags.
In July, Vail posted an online survey to assess public support for a proposed ban on plastic bags and 20-cent fee on paper bags or a fee on both plastic and paper bags.
Fraser voters will be asked in November to approve a 10-cent tax or fee on paper and plastic bags used by any business within the town limits. The Fraser Board of Trustees hasn’t decided the ballot initiative language, but is reportedly leaning toward calling it a tax.
The Durango City council passed an ordinance this month to levy a 10-cent plastic bag fee on its three major grocery stores. That might be repealed if Shoppers Against the Durango Plastic Bag Tax collect the required 600 petition signatures for a ballot initiative for voters to decide.
“What they don’t realize is that I, along with others, am going to start spending my money in Aztec,” wrote Dug Ward on the group’s Facebook page. “Where we live, it’s only a few more miles and I’ll gladly take my $300 a week there.”
“Durango can kiss my ass,” declared Ward.