Paul W. Menter: Guest opinion | AspenTimes.com

Paul W. Menter: Guest opinion

Paul W. Menter
Special to The Aspen Times
Aspen, CO Colorado

Local government adoption of a 20-cent “fee” for “disposable carryout bags,” will merely demonstrate that their hearts are in the right place. Sadly, their policy proposals are dubious.

Don’t get me wrong. I say ban the darned things. Disposable carryout bags define our throwaway culture and our practice of externalizing the cost of human environmental impact. Instead, require all retailers to offer carryout packaging made only of 100 percent post-consumer recycled content. Hundreds of businesses produce this packaging. Help create a market for them through the use of legitimate regulatory action. As for those pervasive two-handled plastic carryout bags used by many retailers but synonymous with grocery stores, ban them completely.

If you are going to lead, then lead. Stop diluting your principles by trying to make another buck off of your visitors and citizens.

Assignment of an arbitrary economic value for such bags is an illegitimate use of government regulatory authority. Dollars collected will fund environmental programs rather than address the impact of the bags themselves. The bags will become like cigarettes, primarily a source of government “sin” tax funding and bureaucracy expansion; only secondarily an environmental problem to be eliminated.

In addition to its feeble public policy foundation, I have yet to find answers to three basic questions relating to the legality of the “bag fee”.

1. How is this “fee” not government-mandated price fixing?

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Grocers freely provide disposable carryout bags to customers, as the market prioritizes convenience over the environment. The “bag fee” policy seeks reversal of this prioritization by assigning an arbitrary economic value to the “free” bags. Did the government not just assign a price to a private good?

Where in current law are government-mandated assessments against private purchase and sale transactions defined as “fees”? Is there some constitutional basis or local charter provision that grants such broad revenue-raising authority to Colorado municipalities? I know of none. Without such authority the “bag fee” is a government-imposed price on the sale of a tangible good, period.

Remember, the last time we experienced governmental price fixing was in 1971 when Richard Nixon froze wages and prices for 90 days to “combat inflation”. Are you scared yet?

2. If the “bag fee” is not a government-mandated price, how is it not a sales tax?

Proponents argue that because the money raised will fund environmental education and recycling programs, it is a fee. Seriously?

Government “fees” are almost always set at carefully designed rates to cover the cost of services provided to individuals, such as water and sewer services or greens fees at the municipal golf course.

So why is the 20 cent “bag fee” set arbitrarily? Perhaps because it is not a fee: Grocery store customers will receive no individual benefit in the form of government services for the payment of this charge. Money from the “fee” funds environmental programs of communitywide benefit.

A governmentally-imposed charge on purchase and sale transactions between private parties to fund programs of communitywide benefit is the very definition of a sales tax, not a fee. You cannot alter the definition of the charge by simply substituting the word you prefer.

3. If the proposed fee is really a tax, how does it comply with the U.S. Constitution’s 14th Amendment equal protection provisions? How does it comply with TABOR?

Grocery stores are singled out for this government charge. Why just them? Other retailers dispense disposable carryout bags. Groceries certainly dispense more bags than other types of retailers, so they may be the worst offenders. However, the 14th Amendment protects people, not the environment, from unequal governmental treatment. How is the use of a disposable bag to carry groceries different from the use of a disposable bag to carry a T-shirt from Boogie’s, or a bottle of cough syrup from Carl’s, or take-out from Little Ollie’s?

And what about TABOR? Article 10, Section 20 of the Colorado Constitution requires any new taxes or changes in tax policy be approved by a vote of the people. If the bag fee is really a tax, it must be put to a vote.

As proposed (and in Basalt’s case adopted), the valleywide “bag fee” program is a government-mandated, “ends justify the means” wealth transfer likely to extract more than $1 million per year from locals and visitors. It is applied regressively against the cost of food in the midst of the most difficult economy in almost a century. This represents our local government’s best idea for motivating its citizenry to change their behavior towards the environment? I hope not.

Alternatively, by mandating post-consumer recycled content in all carryout packaging and eliminating the “grocery style” bags outright, the market must adapt to a new reality where the environmental cost of such bags can no longer be externalized. This would be real leadership at the local level, and real results just might follow.

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