Supreme Court validates municipal law banning use of plastic bags

The municipal law that requires the replacement of plastic bags and bags with biodegradable equivalents is formally and materially constitutional. This was the thesis established by the Plenary of the Federal Supreme Court, which judged valid the law of the municipality of Marília (SP) that requires the replacement of bags.

STF ministers validated the rule that obliges establishments in Marília (SP) to use bags made of biodegradable material reproduction

The ministers concluded that the provision did not violate the principle of free enterprise or proportionality, as it only made environmental protection compatible with constitutional principles, admitting the adoption of alternative methods and materials for packaging purchases.

The extraordinary appeal was filed by the São Paulo Attorney General against a decision by the São Paulo Court of Justice that considered the law unconstitutional due to a defect of initiative. According to the ruling, the bill was authored by the municipal legislature, not the executive. The TJ-SP also understood that the state of São Paulo had already legislated on environmental protection, without prohibiting or forcing the use of types of bags. Thus, it would not be up to the municipalities to legislate on the subject.

Rapporteur’s vote
The case was left with the rapporteurship of Minister Luiz Fux. When speaking about the general repercussion of the issue, in 2017, he highlighted that the constitutional issue raised in the appeal concerns a formal controversy (the possibility of the municipality legislating on the environment) and also a material controversy (for offense to the principles of consumer protection, environmental protection and everyone’s right to an ecologically balanced environment).

“The disposal of plastic bags is one of the main responsible for clogging urban drainage and water pollution, being found even in the digestive tract of some animals”, said Fux at the time.

As for the legitimacy of the municipality to legislate on the subject, the rapporteur stated that in matters of concurrent legislation “the legislative competence of the municipalities is wide in the face of issues that are not specifically regulated by federal or state law in the regulation of systems at the local level”.

Regarding the restriction on the use of plastic bags, Fux pointed out that “although there is no articulated movement to restrict bags of less thickness or non-recycled and non-biodegradable material, the regulation of the matter at different federal levels reveals the need for clarity in the command legislative and reasonable control in search of greater probability and success of these environmental policies”.

In the case under trial, the minister said that the municipal device only regulated the guideline of the national policy on solid waste generated for the local plan, which is authorized by Federal Law 12,305/10.

RE 732,686


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