In 2023, the city of Athens voted to ban single-use plastic bags.
But a state appeals court ruled in July that the ban violates Ohio law and therefore can’t be enforced.
The case has ramifications that go beyond the local shopping experience: It highlights the tension between state law and home rule.
“Home rule has been pretty cherished by local governments and cities,” said retired judge Tom Hodson. “However, this legislature, over the past several years, has passed several state laws that they claim override local laws. And so that's brought up a battlefield between city and state.”
Hodson is the Director Emeritus of the E.W. Scripps School of Journalism and WOUB Public Media at Ohio University. He’s been following this story and joined the Ohio Newsroom to discuss it.
This interview has been edited for brevity and clarity.
On the state’s argument
“The state says that it has a right to pass general laws to regulate and police certain aspects of the state. And they passed a law, Ohio Revised Code 3736.021, that said a person may use an auxiliary container for purposes of commerce or otherwise, and then it defined an auxiliary container to be single-use plastic bags.
“So the state set up that state law and then argued that any city ordinance that banned plastic bags was unconstitutional.”
On the city’s perspective
“The city of Athens argued that [the state law] preempted home rule. Home rule allows the city to regulate things within the confines of the city. So [Athens argued] this was over-stretching by the state of Ohio.
“The lower court found that was not true. The Athens County Common Pleas Court found that the state law prevailed. The city of Athens appealed that to the 4th District Court of Appeals, which just recently came out with a ruling agreeing with the trial judge and saying that the local ordinance was unconstitutional because it conflicted with state law.”
On the history of home rule in Ohio
"We haven't seen the end of home rule litigation in Ohio. In fact, I think it's going to increase markedly.”Tom Hodson
“Home rule has been long protected. There's a home rule amendment in Ohio that basically says cities can define behavior within the confines and the borders of the city, as long as it does not conflict with state law — hence the rub in this particular case. So home rule has been pretty cherished by local governments and cities.
“However, this legislature, over the past several years, has passed several state laws that they claim override local laws. And so that's brought up a battlefield between city and state.”
On the future of home rule in Ohio
“Before the 4th District Court of Appeals came out on the plastic bag case, the 10th District upheld home rule on a tobacco case. Without getting too deep into the weeds on the case, the city of Columbus passed an ordinance that regulated and prohibited the sale of flavored tobacco, especially to minors. Subsequent to the city passing that ordinance, the state passed a statute saying local areas could not regulate tobacco sales — it was something for the state to do.
“The 10th District found just the opposite of what the 4th District found. It upheld the city ordinance of the city of Columbus and told the state to go pound sand. So the fact that we've got two appellate districts with basically opposite rulings shows that this is a hotbed of contention. And I think the more and more we see these broad swaths taken by the Ohio General Assembly, we're going to see more pushback by some localities. We haven't seen the end of home rule litigation in Ohio. In fact, I think it's going to increase markedly.”
