JONATHAN SKRMETTI

ATTORNEY GENERAL AND REPORTER

P.O. BOX 20207, NASHVILLE, TN 37202

February 26, 2024

SUBMITTED ELECTRONICALLY
VIA REGULATIONS.GOV

Robin Carnahan
Administrator
General Service Administration
1800 F St. NW
Washington D.C., 20405

Re: Acquisitions Regulations: Reduction of Single-Use Plastic Packaging

The proposed rule advocates green policies over the efficient and effective
procurement of government property and therefore exceeds the scope of rulemaking
authority delegated by Congress to the GSA Administrator. The rule would
implement environmental policy in an end run around constitutional bicameral and
presentment requirements. See, U.S. Const. Art. I, § 1 and § 7, cl. 2 (Bicameral
requirement); I, § 7, cls. 2, 3 (Presentment); see also, I.N.S. v. Chadha, 462 U.S. 919,
951, 103 S. Ct. 2764, 2784, 77 L. Ed. 2d 317 (1983) (“[T]he Framers were acutely
conscious that the bicameral requirement and the Presentment Clauses would serve
essential constitutional functions.”). The proposed rule would back-door
environmental policy adoption without legislation passed by Congress and signed by
the President.
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 The GSA is meant to provide “[e]ffective and efficient” real estate, acquisition,
government technology, and operations services. U.S. General Services
Administration, Mission and Background, https://bit.ly/49gzwBS; 40 U.S.C.A. §
101(1). The Federal Property and Administrative Services Act established the GSA
to consolidate administrative operations and “to avoid duplication, reduce cost,
streamline the acquisition and distribution of supplies, and centralize the
management of Federal buildings.” https://bit.ly/3uqOmqp; see also, U.S. General
Services Administration, Office of the Administrator Overview, https://bit.ly/48ikoCH.
The GSA Administrator is authorized by statute to promulgate rules only to
forward the GSA’s limited purpose in procuring and using government property. The
office of the Administrator of General Services serves as “the head of the General
Services Administration.” 40 U.S.C.A. § 302(a). Further, the Administrator retains
authority to “prescribe regulations to carry out” the subtitle regarding “Federal
Property and Administrative Services.” 40 U.S.C.A. § 121(c)(1). Accordingly, the
Administrator’s regulation promulgation authority must be germane to the subtitle’s
purpose—“to provide the Federal Government with an economical and efficient
system for” (1) procuring and supplying federal government property and services;
(2) using available property; (3) disposing of surplus property; and (4) maintaining
appropriate records. 40 U.S.C.A. § 101(1)-(4).
By U.S.C.A. § 101(1)’s plain text, any proposed rule with the effect of making
the procurement and supplying of government property less “economical and
efficient” would violate the GSA Administrator’s limited delegation of rulemaking
authority. See 40 U.S.C.A. § 101(1) (requiring the “economical and efficient”
procurement of goods and services); 40 U.S.C.A. § 121(c)(1) (restricting the
Administrator’s authority to comply with the GSA’s purpose).
The proposed rule would clearly result in increased costs and procurement
time for the federal government, states, and businesses who transact with federal or
state governmental entities. SUP packaging alternatives, such as paper or cardboard,
require significantly more energy to produce, create substantially more solid waste,
are more difficult to recycle, and cause other environmental shortfalls, including
deforestation. Angela Logomasini, Science Shows That It’s Not Really Green to Ban
Plastic Bags, NEW YORK POST, https://bit.ly/42JyDPy (Jan. 20, 2019); Swiftpak,
Plastic vs Paper Packaging: The Pros and Cons, https://bit.ly/4bBsNnF (Oct. 5, 2023).
While exact costs differ depending upon product type and packaging, almost
all other packaging materials are substantially more expensive for producers and
consumers than SUP’s. For example, producing soft drinks in glass bottles compared
to polyethylene terephthalate costs $0.01 more to produce per unit, packaging weighs

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approximately ten times as much as SUP, requires 40% more energy, and costs five
times as much to transport, and produces larger product sizes and less efficient
shipping. Richard Gray, What’s the Real Price of Getting Rid of Plastic Packaging?,
BBC, https://bbc.in/3uzHqXQ (July 5, 2018). These same cost increases correlate to
other packaging materials as well. See also, Independent Fiscal Office of the
Commonwealth of Pennsylvania, Economic Impact From Regulation of Single-Use
Plastics; available at
http://www.ifo.state.pa.us/download.cfm?file=Resources/Documents/Single-
Use%20Plastics%20Report-2020_06.pdf (June 2020) (the State of Pennsylvania
estimated a total cost exceeding $70 million on Pennsylvania state government,
industry partners, and consumers alone for “any regulation impacting single-use
plastics, reusable plastics, auxiliary containers, wrappings or polystyrene
containers.” Pennsylvania estimated a ban alone on light-weight plastic bags would
increase consumer costs by $72 million with a per capita impact of $5.60 per
Pennsylvania resident. Further, a “ban on EPS food service products would require”
state and local governments, non-profits, and other institutions “to spend an
additional $40 million on alternatives.”); MB Public Affairs, Inc., Fiscal Impacts of
Prohibiting Expanded Polystyrene Food Service Products in Maryland SB 186 & HB
229; available at https://www.plasticfoodservicefacts.com/wp-
content/uploads/2017/10/Maryland-2017-fiscal-impact-study-of-SB-186-and-HB-
229.pdf (January 2017) (Estimating the impacts of restricting expanded polystyrene
food service product packaging in Maryland to cost up to $34.9 million annually to
affected businesses, organizations, and consumers, with every $1 dollar spent on
expanded polystyrene packaging totaling an average of $1.85 for packaging
alternatives.).
These costs would necessarily shift to retailers, suppliers, wholesalers, and any
other parties living in our states who directly contract with the federal government.
The proposed rule would force extra costs for production, transportation, and
disposal. What is more, this proposed rule would likewise impact parties throughout
our states who supply these federal contractors at any point along the chain of
production and distribution—forcing compliance for downstream parties who do not
directly contract with the federal government. Accordingly, this proposed rule’s sweep
is far broader than entities that directly contract with the federal government.
The proposed rule clearly lessens efficiency and effectiveness in federal
government procurement by requesting additional inquiry into the existence of SUP-
alternative packaging at the outset of the contracting process, as well as creating a
preference for SUP-alternatives with higher production, transportation, and disposal
costs. As such, the proposed rule violates 40 U.S.C.A. § 101(1).

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 Finally, the proposed rule is counterproductive to its stated goal. The SUP-free
ordering preference would likely increase the overall use of plastics and negate any
alleged economic or environmental benefit. Indeed, many other jurisdictions pursued
similar SUP policies with disastrous results.
Under the proposed rule’s section “Other State and Local Government Policy
Efforts,” the GSA cites eight states with initiatives “to reduce single-use plastic
packaging,” including “California[,]. . . Connecticut, Delaware, Hawaii, Maine, New
York, Oregon, and Vermont.” See, 88 Fed. Reg. 88,856 88,857 (Dec. 26, 2023) (citing
National Conference of State Legislatures, State Plastic Bag Legislation,
https://bit.ly/48krsP2 (Feb. 8, 2021)). More specifically, the GSA lists these state-level
prohibitions on the use of single-use plastic bags from grocery stores and other
retailers as evidence that “the market can react to a reduction in single-use plastic
packaging.” Id. While the proposed rule lists these states as examples to emulate, the
proposed rule fails to cite any data from any of these states touting their respective
programs’ alleged success.
Unfortunately, these statewide bans led to worse economic and environmental
outcomes and increased net plastics consumption in some instances. One study found
California’s ban led to numerous unintended consequences, including the offset of
lightweight SUP bags by 120%, 64%, and 6% increase in much heavier and resource-
intensive small, medium, and tall trash bags, respectively. Journal of Environmental
Economics and Management, Bag leakage: The effect of disposable carryout bag
regulations on unregulated bags, https://bit.ly/3HZek7c (January 2019). In addition
to converting to more resource-intensive trash bags for first-time use, California
consumers also could no longer reuse and recycle SUP bags as small trash can liners
for subsequent uses. Id.; see also, Kenneth Schrupp, Multiple Analyses Find
California Plastic Bag Ban is Failing, The Center Square, https://bit.ly/42Kk3HU
(Aug. 25, 2023).
Other states’ proposals led to similar results—including some states not
contemplated by the proposed rule. See, e.g., Forbes, New Jersey Bag Ban Followed
by Increased Use of Plastic, https://bit.ly/49mVlzS (Jan. 22, 2024) (“[P]assage of New
Jersey’s anti-plastics law has been followed by a near tripling of plastic consumption
at Garden State checkouts.”); Freedonia Group, Freedonia Report Finds New Jersey
Single-Use Bag Ban Boosts Alternative Bag Production, Increases Plastic
Consumption, and Drives Retailer Profits, https://bit.ly/3UZPlZx (Jan. 9, 2024); NY
Daily News, New York’s Bad Bag Ban: Unintended Consequences Undermine the
Supposed Environmental Benefits, https://bit.ly/48yWwLn (Mar. 6, 2020); Muposhi,
Mpinganjira, and Wait, Considerations, Benefits, and Unintended Consequences of
Banning Plastic Shopping Bags for Environmental Sustainability: A Systematic

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Literature Review, 40 WASTE MANAGEMENT & RESEARCH 248, 256 (2022) (“[Single
Use] Plastic bag ban led to 21.1% increase in shoplifting in Hawaii, California.”).
These results remain consistent in similar international initiatives. See, Evan
Duggan, Single Use Plastic Bag Ban Creates Unintended Problems in Canada, RETAIL
INSIDER, available at: https://bit.ly/48krp5O (April 19, 2023); Eric Stober, The Federal
Court Just Overturned Ottawa’s Single-Use Plastic Ban, Global News,
https://bit.ly/48hBHUn (Nov. 16, 2023) (overturning Canada’s ban on SUP’s as
“unreasonable and unconstitutional”).
The GSA’s proposed rule exceeds the Administrator’s rule promulgation
authority and attempts to enshrine environmental policy not considered by Congress,
creates worse outcomes and less efficient procedures for businesses in our states who
contract with the federal government, and would likely exacerbate the very
environmental harms the rule seeks to prevent.

Sincerely,

Jonathan Skrmetti
Tennessee Attorney General and Reporter

Tim Griffin Theodore E. Rokita

Brenna Bird
Christopher M. Carr Iowa Attorney General
Georgia Attorney General
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Russell Coleman
Austin Knudsen
Kentucky Attorney General
Montana Attorney General

Jeff Landry
Louisiana Attorney General
Dave Yost
Ohio Attorney General

Lynn Fitch
Mississippi Attorney General Alan Wilson
South Carolina Atty. General

Ken Paxton
Andrew Bailey
Texas Attorney General
Missouri Attorney General

Patrick Morrisey
West Virginia Attorney General