1

Filed 12/10/13 Certified for publica tion 1/3/14 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

D IVISION TWO

SAVE THE PLASTIC BAG COALITION, Plaintiff and Appellant,

v. CITY AND COUNTY OF SAN FRANCISCO, et al. Defendants and Respondents. A137056
(San Francisco County Super. Ct. No. CPF

- 12

- 511978)

I. INTRODUCTION In 2012, the City and County of San Francisco (the City) enacted an ordinance which expanded existing restrictions on the use of “checkout bags” by retail
establishments in the C ity ( the 2012 ordinance ). Appellant Save the Plastic Bag
Coalition ( the Coalition ) , a group of plastic bag manufacturers and distributors , filed a petition for a writ of mandate seeking to invalidate the 2012 ordinance on several grounds

. The superior court denied that petition and entered judgment in favor of the respondent s, the City and two of its departments. On appeal, the Coalition contends th e 2012 ordinance is invalid because (1) it does not comply with the requirements of the
Calif ornia Environmental Quality Act
, Pub lic Resource s Code section 21000 et seq. (CEQA); and (2) it is pr eempted by the California Retail Food Code
, Health and Safety2

Code section 113700 et seq

. (the Retail Food Code )

. 1 We reject these contentions and affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND In April 2007 , the City enacted San Francisco Ordinance No. 81

- 07, a “Plastic Bag Reduction Ordinance” which required the “use of compostable plastic, recyclable paper and/or reusable checkout bags ” by large supermarkets and retail pharmacies located within the City.
In 201 0 , a member of the City’s Board of Supervisors initiated a project to enact

an ordinance which would, inter alia, extend the existing restrictions on the use of
checkout ba g s to apply to all retailers and food establishments in the City, requir e stores

to charge customers for chec kout bags , and institute a community outreach program to encourage reusable bag use.
On November 10, 2011, the City ’s Planning Department issued a “Certificate of
Determination of Exemption ” for the project. The Planning Department determined that
the pr oposed ordinance was a regulatory action that would protect natural resources and
the environment generally and was, therefore, categorically exempt from further CEQA
review under sections 15307 and 15308 of the CEQA “Guide lines

. ” (Cal. Code Reg s ., tit. 1 4, § § 15307 & 15308.) 2 The c ertificate consisted of a 1 2

- page report in which the Department summarized the facts and evidence it considered to make this determination and set forth the following conclusions regarding the “ environmental impacts ” of the

pr oposed ordinance : “Single

- use plastic bags have known environmental impacts to aesthetics, air quality and GHG emissions, hydrology and water quality, water usage, and biological

1 The City concedes that the Coalition has standing to litigate th e issues on appeal

. ( See Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 170 ( Manhattan Beach ).)

2 Regulations pertaining to the app lication of CEQA are commonly referred to as Guidelines. (See Communities for a Better Environment v. South Coast Air Quality Management Dist . (2010) 48 Cal.4th 310, 319, fn. 4.) In this opinion, all subsequent references to “Guidelines” are to title 14 of the California Code of Regulations.3

resources. The proposed project would eliminate single

- use plastic bags a t ‘stores’
within Sa n Francisco, thereby protecting the environment from the impacts associated with single

- use plastic bags. By eliminating single

- use plastic bag use at more ‘stores’ covered by the ordinance, the proposed project would result in greater use of single

- use paper bags, single

- use compostable bags and reusable bags. Single

- use paper bags and compostable bags have greater environmental impacts on air quality and GHG emissions and water usage than single

- use plastic bags and reusable bags (or no bag at all) have lesser environmental impacts in all categories than single

- use plastic bags. Studies have shown that banning single

- use bags and imposing a mandatory charge on single

- use bag

use of paper and combustible bags results in an increase in reusable bag and no bag use and a decrease in single

- use bag use . Because the prop o sed project would ban single

- use plastic bags and impose a manda tory cha r ge on single

- use paper and compostable bags at all ‘stores’ in San Francisco and the proposed proj ect would include a public education campaign aimed at prom oting reusable bags, the prop o sed project would protect the environment and not have a significant impact on the environment.”
On November 1 4, 2011, a draft of the proposed ordinance was presented to the City’s Board of Supervisors at a public meeting where public comment was invited. Although the overwhelming majority of the speakers supported the proposal, an attorney

represen ting the Coalition opposed it and put the City on notice that the Coal ition would file a lawsuit to preclude enforcement of the proposed ordinance . Over the course of the next several weeks, the Coalition submitted hundreds of pages of “ legal objections ” to the proposed ordinance along with “supporting exhibits.” 3 Betwee n November 2011 and February 2012, the City Board of Supervisors cond ucted several public hearings and made some modifications to the draft of the proposed ordinance including eliminating a proposal to increase the amount of the 10

- cent bag charge.

3 The Coalition purports to incorporate these objections into its appellate brief “by reference” and urges this court “to review the Objections document.” We urge the Coalition to review the pertinent rules of court regarding the appellant’s obligation to provide this court with a summary of the pertinent facts.4

O n Feb ruary 6, 2012, the Planning Department reaffirmed its prior conclusion that the proposed ordinance was categorically exempt from further environmental review. It
stated: “ Since the time of the Categorical Exemption Determination , the Board of Supervisors has eliminated the proposal for incr e asing the c h arge to 25 cents and has

c h anged the operative date of the ten cent checkout bag charge to October 1, 2012. In addition, members of the public, specifically Stephen L. Joseph on b eha lf of [the Coalition], have submitted additional comments and material. EP [the Environmental Planning Division of the San Francisco Planning Department] has reviewed the changes to the ordinance made by the Board of Supervisors and determined that the changes do
not alter the conclusions in the Categorical Exemption Determination. EP has also
reviewed the additional comments and materials received from t he public and determined that the materials submitted do not constitute substantial evidence indicating that an
Environmental Impact Report would be required for this Ordinance. No new information has been presented to indicate that the Categorical Ex e mption is inappropriate or that there are any unu s ual circumstances associated with this proposed [ordinance]. Therefore, we ha ve determined that the analysis set forth in the Categorical Exemption
Determination is unchange d

. ” In February 2012, the City enacted San Francisco Ordinance No. 33

- 12 , i.e

. , the
2012 ordinance

. The City set forth its findings in section 2 of the ordina nce : “1. The City and County of San Francisco has adopted citywide goal s of 75 percent landfill diversion by 2010 and zero waste by 2020. “2. The broad use of single

- use checkout bags and their typical disposal creates an impediment to achievement of S an Francisco’s landfill diversion goals. “3. Plastic checkout bags are difficult to recycle and contaminate material that is processed through San Francisco’s recycling and composing programs. “4. Single

- use checkout bags create significant litter prob lems in San Francisco’s neighborhoods, and also litter parks, community beaches, sewer systems, and the San Francisco Bay.5

“5. The production and disposal of single

- use checkout bags has significant environmental impacts, including the contamination of t he environment, the depletion of natural resources, use of non

- renewable polluting fossil fuels, and the increased clean

- up and disposal costs. “6. Of all single

- use checkout bags, plastic checkout bags have the greatest impacts on litter and marine life

. “7. Governments in several countries have placed fees on bags, including the Republic of Ireland, which achieved a 90 percent decrease in the use of single

- use plastic checkout bags due to the fee. “8. Studies document that banning plastic checkout b ags and placing a mandatory charge on paper checkout bags will dramatically reduce the use of both types of bags and increase customers’ use of reusable bags. “9. Reusable bags are readily available with numerous sources and vendors for these bags. Many stores in San Francisco and through the Bay Area already offer reusable bags for sale at a price as low as 25 cents.”
The 2012 ordinance amended the San Francisco Environmental Code by, inter alia, (1) ex tending existing restrictions regarding the provis ion of checkout bags to apply

to all retail stores ; (2) impos ing a new 10

- cent charge for single

- use check

- out bags, which could be used if they were either a compostable plastic bag or a paper bag made with a minimum of 40 percent rec ycled content ; and (3 ) establishing an outreach and education program for stores and customers. The 2012 ordinance provided that the new
restrictions would become effective as to all retail stores, except retail food establishments, in October 2012, and to retail food establ i shments in July 2013.
On February 29
, 2012, the Coalition filed a petition for a writ of mandate under CEQA and a complaint to invalidate the 2012 ordinance on the ground it was preempted by the Retail Food Code

. On June 14, 2012, the superior court deni ed the Coalition’s motion for a preliminary injunction and stay of enforcement of the ordinance. On August
27 and 2 8 , 2012, the Honorable Teri L. Jackson conducted a hearing on the merits of the Coalition’s petition for writ of mandate and complaint alleg ing preemption. On6

September 20, 2012 , the court filed an order denying the writ petition and dismissing the preemption claim. The following week, the court denied the Coalition’s motion to stay implementation of the 2012 ordinance pending appeal

. Judgm ent was filed on November
7 , 2012, and the Coalition filed a notice of appeal the following day.
III. DISCUSSION
A. CEQA The Coalition’ s first claim of error on appeal is that the 2012 ordinanc e is invalid because the City violate d CEQA by finding tha t the ordinance was categorically exempt
from further environmental review and, therefore, could be adopted without first preparing an environmental impact report (EIR).
1. Issues Presented and Standard of Review CEQA embodies California’ s strong publi c poli cy of protecting the environment ; its goals are to: “(1) Inform governmental decision makers and the public about the potential, significant environmental effects of proposed activities. [¶] (2) Identify ways that environmental damage can be avoided or significantly reduced. [¶] (3) Prevent significant, avoidable damage to the environment by requiring changes in projects through the use of alternatives or mitigation measures when the governmental agency finds the changes to be feasible. [¶] (4) Discl ose to the public the reasons why a governmental agency approved the project in the manner the agency chose if significant environmental effects are involved.” ( Guidelines , § 15002.) To further these goals, CEQA and its Guidelines establish a three

- step process designed to assure that public agencies consider the environmental impact of their actions
and decisions. ( Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, 285

- 286 ( Tomlinson ); Magan v. County of Kings (2002) 105 Cal.App.4 th 468, 474 ( Magan )

. ) “ In the first step, the public agency must determine whether the proposed development is a

‘ project, ’ that is, ‘ an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect phy sical change in the environment’ undertaken, supported, or approved by a public agency. [Citation.] [¶] The second step of the process is required if the proposed activity is a ‘ project. ’ The public agency must7

then decide whether it is exempt from compliance with CEQA und er either a statutory exemption [citation] or a categorical exemption set forth in the regulations [citations]. A categorically exempt project is not subject to CEQA, and no further environmental review is required. [Citations.] If the project is not ex empt, the agency must determine whether the project may have a significant effect on the environment. If the agency decides the project will no t have such an effect, it must ‘ adopt a negative declaration to
that effect. ’ [Citations.] Otherwise, the agen cy must proceed to the third step, which entails preparation of an [EIR] before approval of the project. [Citation s .]” ( Tomlinson
, supra, 54 Cal.4th at p. 286. ) In the present case, there is no dispute that enacting the 2012 ordinance was a CEQA project . T he issues on appeal pertain to decisions the City made during the second step of the CEQA process when it concluded that the proposed 2012 ordinance was categorically exempt from further environmental review and therefore could be approved and adopted without proceeding to step three and preparing an EIR

. Specifically, the Coalition contends that (1) the City was precluded by law from relying on a categorical exemption for a project of this nature or, alternatively, (2) the 2012
ordinance falls within the “unusual circumstances” exception to the categorical exemptions upon which the City relied

. Appellate judicial review under CEQA is de novo in the sense that we review the City’s actions as opposed to the trial court’s decision. ( Vineyard Area Citiz ens for Responsible Growth, Inc. v. City of Rancho Cordova (2007 ) 40 Cal.4th 412, 426 .) However, in reviewing an agency ’ s compliance with CEQA, our inquiry extends “ ‘only to whether there was a prejudicial abuse of discretion.’ [Citation.] Such an abus e is established ‘if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.’ [Citations.]” ( Id. at
p p

. 426

- 427.) Therefore, we resolve the substantive CEQA issues by indepen dently determining whether the administrative record demonstrates any legal error by the City and whether it contains substantial evidence to support the City’s factual determinations. ( I d. at p. 427 .)8

2. The City’s Categorical Exemption Determination “The Guidelines contain 33 classes of categorical exemptions. [Citation s .] Each class embodies a ‘finding by the [state] Resources Agency that the project will not have a significant enviro nmental impact.’ [Citations.]” ( San Lorenzo Valley Community
A dvocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1381 ( San Lorenzo Valley ) .) Here, the City relied on two categorical exemptions established by the CEQA Guidelines: (1) The Class 7 or section 15 307 categorical exemption which “consists of actions taken by regulatory agencies as authorized by state law or local ordinance to assure the maintenance, restoration, or enhancement of a natural resource where the regulatory process involves procedures fo r protection of the environment ” ; (2) The Class 8 or section 15308 categorical exemption which “consists of actions taken by regulatory agencies, as authorized by state or local ordinance, to assure the maintenance, restoration, enhancement, or protecti on of the environment where the regulatory process involves procedures for p rotection of the environment.”
Because a categorical exemption is premised on a finding that the class of projects does not have a significant effect on the environment , “ ‘ an ag ency’s finding that a particular proposed project comes within one of the exempt classes necessarily includes an implied finding that the project has no significant effect on the environment. [Citation.] On review, an agency’s categorical exemption deter mination will be affirmed if supported by substantial evidence that the project fell within the exempt category of projects. ’ ” ( Save the Plastic Bag Coalition v. County of Marin (2013) 218 Cal.App.4th 209, 219

- 220 ( County of Marin ) quoting Davidon Homes v. City of San Jose (1997) 54 Cal.App. 4 th 106, 115 ( Davidon Homes ) .) Here, however, the Coal i tion does not actually dispute that this record contains
substantial evidence to support the City’s determination that the 2012 ordinance fell
within the two ca tegorical exemptions at issue in this case. Instead, the Coalition attempts to establish that th e City committed two legal error s by relying on categorical exemptions rather than preparing an EIR

.9

First, the Coalition contends that another case in which it was involved,
Manhattan Beach , supra, 52 Cal.4th 155
, precludes any city larger than the city of Manhattan Beach from relying on a categorical exemption to avoid preparing an EIR before enacting an ordinance that restricts the use of plastic bags within its jurisdiction. Manhattan Beach, supra , 52 Cal.4th 155
, addressed an ordinance banning the use of plas tic bags at the point of sale in the city of Manhattan Beach

. The city enacted the ordinance over the objection of the Coalition and without prepar ing an EIR after conducting an initial study which resulted in a determination that the ordinance would not have a significant negative effect on the environment. The trial court found that the
Coalition had made a fair argument that the plastic bag ban w ould increase the use of paper bags causing negative environmental consequences and that a full CEQA review was required. Pursuant to this finding, the court issued a writ of mandate barring
enforcement of the ordinance until the city prepared an EIR. ( I d . at pp. 160

- 162.) However, the California Supreme Court reversed.
The Manhattan Beach court found, among other things
, that the Coalition had not established a “fair argument” that the plastic bag ban would increase environmental damage. ( Manhattan Be ach, supra , 52 Cal.4th at p. 175.) The Coalition ’s evidence,
several studies concluding that the “ ‘ life cycle ’ ” of paper bags had a greater environmental impact tha n the “ ‘ life cycle ’ ” of plastic bags
, established that “the manufacture, transportation , recycling, and landfill disposal of paper bags entail more negative environmental consequence than do the s ame aspects of the plastic bag ‘life cycle.’ ” ( Id . at p. 172 .) However, the court held : “W hen we consider the actual scale of
the environmental impacts that might follow from increased paper bag use in Manhattan Beach, instead of comparing the global impacts of paper and plastic ba gs, it is plain the city acted within its discretion when it determined that its ban on plastic bags would have no sig nificant effect on the environment.” ( Ibid .) The court also found that the city “properly concluded that a ban on plastic bags in Manhattan B each would have only a miniscule contributive effect on the broader environmental impacts detailed in the paper
b ag ‘life cycle’ studies relied on by [the Coalition].” ( Manhattan Beach, supra , 5210

Cal.4th at p. 174.) In light of the relatively small size of the city’s population and its retail sector, the increase in paper bag production resulting from the ordinance could “only be described as insubstantial.” ( Ibid .) In reaching its decision, the Manhattan Beach court also rejected the Coalition’s argument that the ordinance would have negative cumulative impacts when considered in conjunction with other similar laws enacted elsewhere in the state. ( Manhattan Beach,

supra, 52 Cal.4th at p. 174.) Questioning whether that issue was properly before it, the court nevertheless found “that Manhattan Beach is small enough that even the cumulative
effects of its ordinan ce would be negligible.” ( I bid .) In a footnote, the court also stated that “[w]hile cumulative impacts should not be allowed to escape review when they arise
from a series of small

- scale projects, that prospect does not appear in this case. According to plaintiff, the movement to ban plastic bags is a broad one, active at levels of government where an appropriately comprehensive environmental review will be required.” ( Id . at p. 174, fn. 10.) In the present case, t he Coalition ’s reliance on Manhattan Beach is perplexing

. The fact that the city of Manhattan Beach was able to enact its plastic bag ban without preparing an EIR certainly does not strengthen the Coalition’s position here

. Furthermore, we find nothing in that opinion which supports the C oalition’s specific contention that the City cannot rely on a categorical exemption in this case because it is larger than the city of Manhattan Beach. Indeed, Manhattan Beach was not a categorical exemption case at all; during the second step of its CEQA inquiry the city conducted an initial review which resulted in a negative declaration. ( Manhattan Beach, supra , 52 Cal.4th at p p . 161

- 162.) And , although the Manhattan Beach court was not asked to address any CEQA categorical exemption, it nevertheless observed that an alternative available to the city during the second stage of its CEQA review was to determine that the project was categorically exempt

. ( Id . at p. 171 , fn. 8.)
The Coalition literally ignores these pertinent facts and, instead, bases i ts argument on an isolated phrase that appears in the Manhattan Beach opinion. According to the Coalition, when the Manhattan Beach court used the term “comprehensive11

environmental review” in its written decision, it made a ruling that “ a comprehensive

en vironmental review ” would be required before a plastic bag ban could be adopted by any city larger than Manhattan Beach. ( Manhattan Beach, supra, 52 Cal.4th at p. 174, fn. 10.) And , the Coalition reasons , since a comprehensive environmental review necess arily “p recludes categorical exemptions, ” Manhattan Beach necessarily precludes the City of San Francisco from relying on a categorical exemption. As reflected in our summary of Manhattan Beach
, the court used the phrase “comprehensive environmental revie w” when describing (and rejecting) the Coalition’s argument that the ordinance would have negative cumulative impacts. In a footnote, the court stated that “ According to plaintiff, the movement to ban plastic bags is a broad one, active at levels of gove rnment where an appropriately comprehensive environmental review will be required.” ( Manhattan Beach, supra, 52 Cal.4th at p. 174 and fn. 10.) Thus, contrary to the Coalition’s theory on appeal, the term “comprehensive environmental review” was not any p art of the holding of Manhattan Beach

. Indeed, in our opinion, the Coalition’s strained interpretation of this quoted sentence stretches the bounds of reasonable advocacy. ( Ibid .) The Coalition’s second argument is that the City was precluded by law fro m relying on the categorical exemptions in sections 15307 and 15308 of the CEQA
Guidelines because those categorical exemptions ap ply only to “regulatory actions ” and, the Coalition contends, the 2012 ordinance was a “legislative action [] .” Plainly, these two categorical exemptions apply to regulatory actions. (Guidelines, §§ 15307 & 15308.) However, we reject the Coalition’s unsupported assumption that a legislative body like the City cannot perform a regulatory function. The California Constitution ex pressly provides that: “A county or city may make and enforce within its limits all local police, sanitary, and other ord i nances and regulations not in conflict with general laws.” (Cal. Const., art. 11, § 7.) Thus, as the superior court found in this c ase, “when an ordinance, like San Francisco’s Checkout Bag Ordinance, is enacted pursuant to the municipality’s police powers to promote the general welfare, the municipality is acting in its regulatory capacity, within the meaning of CEQA’s Class 7 and Cl ass 8 Categorical Exemptions.”12

We find support for our conclusion in County of Marin, supra , 218 Cal.App.4th 209, a recently

- decided case in which the Coal i tion made the precise argument it raises
here. County of Marin involved a Marin County ordinance banning single

- use plastic bags and imposing a fee on single

- use paper bags. ( Id . at p. 213.) The c ounty adopted the ordinance without preparing an EIR after determining during the second step of its CEQA inquiry that the project was categorically exemp t from further environmental review under Guidelines, section s 15307 and 15308, the same exemptions at issue in the present case. The superior court denied the Coalition’s petition for a writ of mandate,
and the County of Marin c ourt affirmed. ( Id . at p. 218.) In upholding the c ounty’s determination that the ordinance was categorically exempt from further environmental review, the County of Marin court rejected the Coalition’s theory that only regulatory agencies can invoke those exemptions, finding, amo ng other things that, “[a]lthough ordinances are always ‘legislative’ in character, they also may constitute ‘regulations.’ ” ( Id. at p. 227. 4 ) Magan , supra, 105 Cal.App.4th 468, also supports our conclusion. That case
involved a Kings County ordinanc e regulating the amount of sewage sludge that could be deposited on agricultural lands. In affirming the c ounty’s determination that the adoption of the ordinance was categorically exempt from CEQA review under Guideline s section 15308, the M

a gan court ne ver even question ed that the ordinance was a regulatory action within the meaning of the section 15308 categorical exemption. ( Id . at p. 477.) The
Coalition discounts Magan because the Magan court did not actually consider whether the section 15308 exemp tion excludes the actions of a legislative body. The fact remains
, however, that the ordinance s in both Magan and County of Marin are both example s of a county exercising regulatory powers afforded to it by the California Constitution. 5

4 The Coalition’s petition for review of the County of Marin decision was denied by our Supreme Court on October 2, 2013. ( Save the Plastic Bag Coalition v . County of Marin (Oct. 2, 2013) 2013 Cal. LEXIS 8050.)

5 At oral argument before this court, counsel for the Coalition insisted that Magan is not authority for the conclusion that a legislative body can invoke the section 1530813

The Coalition contends that allowing a city or county to rely on a categorical exemption for a “green ” ordinance would “make a mockery of CEQA” by transforming the exemption into a “license” to evade CEQA. We disagree. As we have already explained, an agency finding that a particular proposed project falls within a class of projects that is categorically exempt is subject to judicial review for substantial evidence. ( County of Marin, supra , 218 Cal .App.4th at pp. 219

- 220; s ee also Davidon Homes
, supra, 54 Cal.App.4th at p. 115.) Furthermore, a s we explain next, “[e]ven if a public agency meets its initial burden to show the exemption is supported by substantial evidence, it still has to defend against claims that the exemption is subject to an exception

. [ Citation. ] Thus, it is simply not the case that a city or county can circumvent CEQA merely by character i zing its ordi n ance s as environmental ly friendly and therefore exempt und e r the Class 7 or 8 categorical exemption s .” ( County of Marin, supra , 218 Cal.App.4th a t p. 228.)

3. The Unusual Circumstances Exception The Coalition contends that even if the City was not precluded by law from relying on a categorical exemption, the 2012 ordinance falls within the “unusual circumstances” exception to the categorical e xemptions upon which the City relied. The unusual circumstances exception
, which is set forth in section 15300.2, subdivision (c) of the Guidelines
, states that a “ ‘ categorical exemption shall not be used for an activity where there is a reasonable pos sibility that the activity will have a significant effect on the environment due to unusual circumstances.’ [Citations.] ‘The
Guidelines do not define the term “unusual circumstances.” ’ [Citation.] As explicated in case law, an unusual circumstance re fers to ‘some feature of the project that distinguishes it’ from others in the exempt class. [Citation.] In other words, ‘whether a

exemption because, acco rding to counsel, the Magan court expressly refused to decide that issue. In fact, however, the Magan appellant raised a different issue; he argued that “the class 8 categorical exemption should not apply to the adoption of a new complex regulatory progra m

. . . .” (See Magan, supra, 105 Cal.App.4th at p. 477, fn. 4.) The Magan court summarily rejected this claim not only because it was waived but also because it was not supported by any legal authority. ( Ibid .)14

circumstance is “unusual” is judged relative to the typical circumstances related to an otherwise typically exempt project .’ [Citation.]” ( San Lorenzo Valley , supra, 139 Cal.App.4th at p. 1381.) “In categorical exemption cases, where the agency establishes that the project is within an exempt class, the burden shifts to the party challenging the exemption to show
that th e project is not exempt because it falls within one of the exceptions listed in Guidelines section 15300.2.” ( Davidon Homes, supra , 54 Cal.App.4 th at p. 115; see also County of Marin, supra , 218 Cal.App.4th 209.) Here, as reflected in our factual

summary , before the 2012 ordinance was enacted, the City Planning Department determined that the comments and materials submitted by the Coalition did not constitute substantial evidence that there were any unusual circumstances associated with the 2012
ordinance and, thus, did not alter the Department’s conclusion that the project was categorically exempt. Preliminarily, the Coalition contends that the City forfeited its “right” to challenge
the Coalition’s claim that the unusual circumstances exception applie s to the 2012
ordinance because it failed to make findings responsive to the each of the Coalition’s specific objections before it adopted the 2012 ordinance without preparing an EIR

. Ironically, the Coalition waived this forfeiture claim by asserting it for the first time in its reply brief. Furthermore, the premise of this theory is undermined by the very case upon
which the Coalition relies, Davidon Homes , supra, 54 Cal.App.4th 106.
The Coalition contends that Davidon Homes establishes that “if a rea sonable argument is made to suggest a possibility that a project will cause a significant environmental impact, the agency must refute that claim to a certainty before finding that the exemption applies.” ( Quoting Davidon Homes, supra , 54 Cal.App.4th at p . 118.) As
the Coalition acknowledges
, th is passage from Davidon Homes addressed the so

- called

“ common sense ” exemption
, which is not a categorical exemption under the Guidelines

. Under th e common sense exemption, a project is exempt from CEQA if “[t]he activity is covered by the general rule that CEQA applies only to projects, which have the potential for causing a significant effect on the environment. Where it can be seen with certainty15

that there is no possibility that the activity in question may ha ve a significant effect on the environment, the activity is not subject to CEQA.” (Guidelines, § 15061, subd. (b)(3).) Nevertheless, the Coalition contends that the “principle” from Davidon Homes that we quote above also applies in a categorical exempt ion case. However, that quoted
statement is obvious ly tied to the unique language of the common sense exemption. Indeed, the Davidon Homes court expressly focused on the substantive distinctions between the common sense exemption and other categorical ex emptions established by
the Guidelines when it resolved the very different issues presented by that appeal

. ( Davidon Homes, supra , 54 Cal.App.4th at pp. 115

- 117

. ) In light of those distinctions, we are concerned by the Coalition’s serious mischaracteriza tion of Davidon Homes

. That case does not lend any support to the Coalition’s forfeiture theory. Turning to the substantive claim of error, the Coalition contends that the City abused its discretion by disregarding evidence that the Coalition produced be fore the
2012 ordinance was enacted which clearly establishe d that the ordinance falls within the unusual circumstances exception to the categorical exemptions upon which the City
relied. Courts disagree about the proper standard of judicial review rega rding factual determinations as to whether an otherwise exempt project falls within the unusual circumstances exception to a categorical exemption. ( Hines v. California Coastal
Commission (2010) 186 Cal.A p p.4th 830, 855 ( Hines ) ) “ ‘ Some courts have relied on cases involving review of a negative declaration, holding that a finding of categorical exemption can not be sustained if there is a “fair argument” based on substantial evidence that the project will have significant environmental impacts, even where t he agency is presented with substantial evidence to the contrary. [Citation.] Other courts apply an ordinary substantial evidence test

. . . , deferring to the express or implied findings of the local agency that has found a categorical exemption applicab le. [Citations.] ’ [Citations.]” ( Id. at p. 856

. ) Without acknowledging this split in authority, the Coalition claims it made a “fair argument” that the unusual circumstances exception applies. In other words, without16

disputing that substantial evid ence supports the City’s contrary finding, the Coalition maintains that it produced other substantial evidence to support a fair argument that the
2012 ordinance would have a significant effect on the environment due to unusual
circumstances. We will a ssu m e without deciding that the fair argument standard applies

. The Coalition’s “fair argument” is extremely convoluted
, but appear s to take two primary forms. First, the Coalition posits that the “presence of 15.9 million tourists and
hundreds of thousands of commuters each day constitutes ‘unusual circumstances’ ” precluding the City from relying on a categorical exemption. The Coalition ’s theory is that the 2012 ordinance will increase the use of single

- use paper and compostable bags without decreasing t he use of reusable bags at all because tourists and commuters will “almost never” bring their own reusable bags to the City and, even if they do, they are likely to underuse them before throwing them away which is bad for the environment.
The Coalition has failed to cite any evidence in this record to support their factual
claim that tourists and commuters who visit San Francisco will undermine the positive environmental impact goals of the 2012 ordinance. Instead, they rely solely on arguments that wer e made by Coalition attorneys during the administrative proceedings. Thus, we summarily reject this unsupported theory. 6
The Coalition ’s second argument is that “Plastic bag bans are unusual because, while they purport to protect the environment, paper a nd compostable bags and
underused reusable bags are worse for the environment.” In other words, the Coalition’ s theory is that a plastic bag ban is itself an unusual circumstance under CEQA because it targets an environmental problem by creating a worse e nvironmental problem

. As substantial proof of this theory, t he Coalition relies on six studies which allegedly show
that the overall “life cycle” of a paper bag has a greater negative impact on the

6 When we raised this issue at oral a rgument, counsel for the Coalition urged us to rely on “common sense.” However, as discussed more fully above, the party challenging a categorical exemption has the burden of producing substantial evidence that a project falls within an exception to that categorical exemption. ( Davidon Homes, supra , 54 Cal.App.4th at pp. 115

- 117.)17

environment tha n the life cycle of a plastic bag . The Co alition contends that several of
the se studies also support the conclusion that compostable bags and underused reusable bags are also worse for the environment tha n plastic bags.
The Coalition reli ed on essentially the same “ ‘ life cycle ’ ” stud y eviden ce in
Manhattan Beach
, supra , 52 Cal.4 th at pages 162

- 164. As discussed earlier in this opinion, t he Manhattan Beach court found these studies did not constitute substantial evidence supporting a fair argument that the ordinance at issue in that case woul d negatively impact the environment. ( Id . at p. 173 .) In reaching th is conclusion, the court
characterized the case before it as a “cautionary example of over reliance on g eneric studies of ‘life cyc le ’ impacts associated with a part icular product. ” ( Id

. at p. 175.) As the court explained, “[s] uch stud i es, when properly conducted, may well be a useful guide for the decision maker when a project entails substantial production or consumption of the product. When, however, increased use of the product is an indirect and uncertain consequence, and especially when the scale of the project is such that the increase is plainly insignificant, the product ‘life cycle’ must be kept in proper perspective and not allowed to swamp the evaluation of actual impact s attr ibutable to the project at hand.” ( I bi d .) Despite the cautionary message in Manhattan Beach , the Coalition continues to rely exclusive ly on global impact studies regarding the life cycle of the various types of bags that exist in this world. Instead of heeding the Supreme Court’s warning, the Coalition summarily distinguishes Manhattan Beach because it involved a smaller city
than the c ity of San Francisco. However, we are not convinced that global impact studies
are a fair or accurate mechanism for mea suring the impacts of a local ordinance which is clearly tailored to address the specific environmental goals of that specific locality

. Even if these life cycle studies do have some arguable relevance when evaluating the impact of a city

- wide plastic bag ban , they do not constitute substantial evidence supporting the Coalition’s fair argument in this particular case because t he 2012
ordinance is not a plast ic bag ban, it is a Checkout Bag o rdinance

. Its goal is to reduce all single

- use bags in San Fra ncisco by banning single use
, noncompostable plastic check

-18

out bags, and imposing a 10

- cent bag charge when customers are provided with a single use paper or compostable plastic bag , and instituting a community outreach program to encourage reusable bag us e in the City. Thus, in reaching the conclusion that this project was categorically exempt, the City reasoned that “[b]ecause the proposed project would ban single

- use plastic bags and impose a mandatory charge on single

- use paper and compostable bags at all ‘stores ’ in San Francisco and the proposed project would include a public education campaign aimed at promoting reusable bags, the proposed project would protect the environment and not have a significant impact on the environment.”
The Coalition ar gues that the 10

- cent fee for providing a compostable or paper bag may not be taken into account in determining whether th e categorical exemptions apply. According to the Coalition, that fee is a “mitigation” measure the potential effectiveness
of which c an only be evaluated as part of a comprehensive environmental review. We disagree. CEQA Guidelines define a “ ‘ project ’ ” as including “the whole of an action which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment

. . . .” ( Guidelines, § 15378 , subd. (a) .) A mitigation measure , by contrast, involves “feasible changes in any
or all activities involved in the project in order to substantially lessen or avoid significant impacts on the environment

. . . . ” ( Id ., § 15041, subd. (a)

. ) Here, as our factual summary illustrates, the 10

- cent fee was always an integral part of the 2012 ordinance. It was not a mitigation measure in any sense of that word.
Woll m er v. City of Berkeley (2011) 193 Cal.App. 4th 1329 ( Woll m er ), supports our conclusion. In that case, the trial court denied a petition for a writ of mandate to block an affordable housing development in Berkeley

. ( Id . at p. 13 3 8.) The Woll m er court affirmed that decision and upheld the city’s determination tha t the project was categorical ly exempt under CEQA Guideline s section 15332. ( Id . at pp. 1347

- 1 3 54.) One aspect of that project, which was an integral part from its inception, was that it s developers “would dedicate land for a left turn lane on Ashby Avenue, thereby reducing traffic impacts to less than significant, a necessary condition for the [CEQA] exemption.”19

( Id. at p. 1352.) The Wollm er court rejected appellant’s contention that t his aspect of the project was a “mitigation measure,” finding instead that the dedication of a five

- foot right

- of

- way was “ a component of the project that assisted the City with an existing traffic issue.” ( Ibid. ) The court reasoned that the traffic prob lem preexisted the proposed project and th e dedication that improved that problem “beca me part of the project design

— it was never a proposed mitigation measure.” ( Id. at p. 1353.) 7 Just so here: the
10

- cent per bag fee aspect of the ordinance was, from t he inception, “part of the project design” which directly addressed the problem of s ingle use bags, a problem that preexisted the proposed project. It was not a “mitigation measure” to try to alleviate some perceived difficulties in the original plan. The Coalition mistakenly relies on Salmon Protection and Watershed Network v. County of Marin (2004) 125 Cal.App.4th 1098 ( Salmon Protection ) and Azusa Land
Reclamation Co. , Inc. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165 ( Azusa ). Th ose cases involved proposed subsequent actions by the project’s proponent to mitigate or offset the alleged adverse environmental impacts. (See Salmon Protection, supra , 125 Cal.App.4th at pp. 1104 & 1108 and Azusa, supra , 52 Cal.App.4th at pp. 1187

- 1188 & 1199

- 1200.) Nothing of that sort was involved in the 10

- cent charge provision of the 2012 ordinance. That fee was, from the very beginning, an integral part of the overall project designed to help the San Francisco environment, i.e., it was clearly

a s ignificant part of the ordinance from its inception.

7 After ignoring Wollmer in its opening brief to us, the Coalition spends several pages in its reply brief trying to distinguish that case. It purports to do so by quoting

ma ny paragraphs from the Wollmer decision and then stating: “The dedication offer [in Wollmer ] was part of the project design only in the sense that is was part of the preexisting reality , not a proposed mitigation measure.

. . . [¶] In this case, the 10

- ce nt fee was not a preexisting reality . It was a proposed mitigation measure to reduce the impacts of this project.” Our response to this argument can be reduced to a simple statement, and minus any bolding, underlining, or italics: as the Wollmer decisio n makes clear, the issue is whether the challenged portion of the plan was or was not part of the original project. The 10

- cent charge clearly was in this case; it was not a subsequently

created mitigation measure.20

In summary, the Coalition has failed to establish that the City erred by concluding
that the 2012 ordin ance was categorically exempt; it has not proven its legal theories that the City was precluded from relying on a categorical exemption
, nor has it squarely addressed or even fairly acknowledged the substantial evidence supporting the City’s
determination s in this case. F inally , the Coalition failed to carry its burden of establishing that the unusu al circumstances exception to the CEQA categorical exemptions apply to the 2012 ordinance. For all these reasons, we affirm the judgment denying the Coalition’s petition for a writ of mandate

. B. Preemption
The Coalition ’s second claim on appeal is th at the 2012 ordinance is invalid because it is preempted by the Retail Food Code

. (Health & Saf. Code, § 113703 et seq.) 8
1. Issues Presented and Standard of Review

“ ‘ Local ordinances and regulations are subordinate to state law. [Citation.]
Insofar as a local regulation conflicts with state law, it is preempted and invalid. [Citations.] “ ‘ “ ‘ A conflict e xists if the local legislation “ ‘ duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative
im plication. ’ ” ’ [Citations.]” ’ [Citations.]” ( California Grocers Assn. v. City of Los Angeles (2011) 52 Cal.4th 177, 188 ( California Grocers ) ; see also Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1150 ( Big Creek Lumber ) .)
In th e present case, the Coalition does not contend that the 2012 ordinance duplicates or contradicts any other law . Instead, the Coalition maintains that the Retail
Food Code expressly and fully occupies the field of law that the 2012 ordinance purports

to re gulate. “ Express field preemption turns on a comparative statutory analysis: What field of exclusivity does the state preemption clause define, what subject matter does the

8 Undesignated statutory references in this section of our opinion are to the Health and Safety Code.21

local ordinance regulate, and do the two overlap? [Citations.] ” ( California Gro cers,
supra , 52 Cal.4th at p p. 188

- 189. ) “The party claiming that general state law preempts a local ordinance has the
burden of demonstrating preemption. [Citation.] ” ( Big Creek Lumber , supra, 38 Cal.4th

at pp. 1149 .) Court are “ ‘ reluctant to infer le gislative intent to preempt a field covered by municipal regulation when there is a significant local interest to be served that may differ
f rom one locality to another.’ [Citations.] ” ( I bi d .) Thus, “ if there is a significant local
interest to be served which may differ from one locality to another then the presumption favors the validity of the local ordinance against a n attack of state preemption.’ [Citations.] ” ( Ibid

. ; see also City of Riverside v. Inland Empire Patients Heath and Wellness Center, In c . (2013) 56 Cal.4th 729, 744.)
2. Analysis As noted above, the first step in our express field preemption inquiry is to identify the field of exclusivity established by the state preemption clause. ( California Grocers
, supra , 52 Cal.4th at p. 189.)
The pu r pose of the Retail Food Code “ is to safeguard public health and provide to consumers food that is safe, unadulterated, and honestly presented through adoption of
science

- based standards.” (§ 113703.) To that end, the Code contains the following

express preemption clause: “ Except as provided in Section 113709, it is the intent of the Legislature to occupy the whole field of health and sanitation standards for retail food facilities, and the standards set forth in this part and regulations adopted pursuant to this part shall be exclusive of all local health and sanitation standards relati ng to retail food facilities.” (§ 11370 5 .) The field reserved for state regulation by this p reemption p rovision is “clear and precise.” ( California Grocers, su pra , 52 Cal.4th at p. 1 89 .) It establishes that the “state alone may adopt ‘ health and sanitation standards for retail food f acilities. ’ ” ( Ibid .) In other words, the Retail Food Code preempts local ordinances which impose “substantive food safety stand ards.” ( I bi d

. ) However, the “ Retail Food Code does not preempt all laws that have as their purpose the promotion of food health and safety; it preempts only22

those that establish ‘health and sanitation standards’ for retail food establishments, so as

to e nsure uniformity for such facilities. [Citation.]” ( Id

. at p. 191.)
Th e 2012 o rdinance does not establish health or sanitation standards for retail food
establishments . Instead, it regulates the use of single

- use checkout bags in its jurisdiction by (1) precluding stores from providi ng single

- use noncompostable plastic bags; (2) requiring a fee for the provision of any other type of single

- use bag; and (3) establishing a community outreach program to encourage reusable bags. The fact that these restr ictions apply to all retail stores in the City and thus include retail food facilities does not alter
their fundamental nature : the 2012 o rdinance regulates single use checkout bags, not food safety. Thus, we conclude that the 2012 o rdinance is not preemp ted by the Retail Food
Code

. The Coalition insists that the preemption clause in the Retail Food Code establishes that the Legislature intended to “occupy the entire field.” (§ 113705.) However, the Coalition fails to acknowledge that a field, even an entire field, has some ending point. Furthermore, the Coalition also overlooks other provisions of the Retail Food Code which make clear that it was not intended to preempt local regulation of every subject addressed anywhere in this statute. For exampl e, section 113709 provides that it does not “prohibit a local governing body from adopting an evaluation and grading system for food facilities” or otherwise specifically regulating some of their sanitary standards, and section 113715 mandates that any “op eration of a food facility shall

. . . be in accordance with all applicable local

. . . ordinances, including but not limited to, fire, building
, and zonin g codes.”
The Coalition also argues that the 2012 o rdinance is preempted because a carry out bag is a “single

- use article [] ” which is regulated by the Retail Food Code

. “Single use articles” is a broadly defined term under the Code
, which includes but is not limited to “utensils, tableware, carry

- out utensils, bulk food containers, and other items such a s bags, containers, placem a ts, stirrers, straws, toothpicks, and wrappers that are designed and constructed for one time, one person use, after which they are intended for discard

. ” (§ 113914.) The Code provides that “single

- use articles shall not be reu sed” (§ 114081 ,23

subd. (d) ) and that “[m]aterials that are used to make single

- use articles shall not allow the migration of deleterious substances or impart colors, odors, or tastes to food, and shall be safe and clean.” (§ 114130.2.)
The fact that di screet provisions of the Retail Food Code a lso a ddress carryout bags does not alter our conclusions . Outside the express field of exclusivity, “it is well

settled that the preemption doctrine does not preclude a city from exercising its police

power on a subject simply because the Legislature has also enacted a law on the same subject.” ( Harrahill v. City of Monrovia (2002) 104 Cal.App.4th 761, 767.) Here, the perceived “overlap” between the Retail Food Code and the 2012 ordinance does not pertain to the field of exclusivity established by the preemption clause. As the superior explained in its order dismissing the Coalition’s preemption claim, “as it pertains to single

- use articles, therefore, the [Retail Food Code] occupies the field of safety and sa nitation standards for such articles. The [Retail Food Code] does not occupy the field of environmental standard[s] for single use bags. Further, San Francisco’s checkout bag ordinance does not establish or affect ‘health and sanitation standards’ (or re gulate food safety). It does not address or even mention food contamination, purity, cleanliness, spoilage or any topic connected to the express field of the [Retail Food Code.] ” For all of these reasons, we conclude that the 2012 ordinance is not preemp ted by
the Retail Food Code.
IV. DIS POSITION The judgment is affirmed. Respondents shall recover their costs on appeal

.

Haerle, J.
We concur:

_________________________ Kline, P.J

___________________ _____ Richman, J.1

Filed 1/3/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

SAVE THE PLASTIC BAG COALITION, Plaintiff and Appellant,

v. CITY AND COUNTY OF SAN FRANCISCO, et al. Defendants and Respon dents. A137056
(San Francisco County Super. Ct. No. CPF

- 12

- 511978)

BY THE COURT:
The opinion in the above

- entitled matter filed on December 10, 2013, was not certified for publication in the Official Reports. For good cause it n ow appears that the opinion should be published in the Official Reports and it is now so ordered.

Dated: _______________________

__________________________ Kline, P.J.2

Trial Court: Superior Court of San Francisco County

Tr ial Judge: Hon. Teri Jackson

Attorney for Plaintiff and Appellant Save the Plastic Bag Coalition Stephen Laurence Joseph
Attorney for Defendant and Respondent City and County of San Francisco Dennis J. Herrera City Attorney Wayne K. Sn odgrass James M. Emery Deputy City Attorneys