Polystyrene is commonly used as packaging for take-out food from restaurants. A state law that preempts local governments from banning plastics could be amended by a bill that state Sen. Kerry Donovan, D-Vail, is considering carrying.

The Colorado state senator whose district includes Aspen said she is considering carrying a bill during next year’s legislative session that would amend a state law preventing local governments from enacting plastic bans.

State Sen. Kerry Donovan, D-Vail, said she has heard from some of her constituents this fall that they would like the ability to enact plastic bans as a measure of environmental protection. But a section of state law added in 1993 dealing with waste diversion and recycling says that “no unit of local government shall require or prohibit the use or sale of specific types of plastic materials or products or restrict or mandate containers, packaging, or labeling for any consumer products.” (See Colorado revised statute 25-17-104 on local government preemption.)

The 24-year-old law did not stop Aspen City Council in 2011 from banning single-use plastic bags from local grocery stores and implementing a fee for paper bags. Aspen was the second community in the state to enact such a law, following Telluride’s lead. Eleven other towns, including Carbondale, Avon, Crested Butte and Boulder, have since passed plastic bag bans.

Aspen’s status as a home rule municipality may have shielded it from an effort to block the bag ban based on the preemption law, and it is arguable that grocery-store plastic bags may not be subject to the state’s preemption statute, according to one of the authors of Aspen’s law, City Attorney Jim True.

However, the existence of the statute has given a host of communities cold feet, especially towns that are not home rule and evem some towns with existing grocery-store plastic bag bans that would like to expand regulated plastics to polystyrene, also known as styrofoam. Those containers, which are commonly used for packaging take-out orders from restaurants, are not feasible to recycle, according to a representative of the nonprofit advocacy group Environment Colorado, which is lobbying for a number of anti-single-use-plastics policies.

Donovan represents the large and economically diverse Senate District 5, which includes Chaffee, Delta, Eagle, Gunnison, Hinsdale, Lake and Pitkin counties. Constituents from many areas of the district, including Aspen, Chaffee County and Avon, have asked her to change the preemption law so they can move forward with their own local policies, she said.

“I am looking very seriously at carrying a bill” that would amend the preemption language, Donovan said.

A Vail Valley native, Donovan said she was raised with an environmental ethic and she considers the question of our responsibility to protect gorgeous mountain valleys such as hers a kitchen-table issue.

It would be a great step forward if state law could be changed so that communities could create policy around plastics and waste that local leaders see as being in their best interests, she said.

Donovan added that she sees the local-control route as the best solution, as opposed to a statewide ban on plastic products.

“It doesn’t force anyone into a pathway they are not ready to take yet,” she said. “It lets people be where they need to be and oftentimes that is a good role for a district that is as diverse” in terms of politics and local economies as Senate District 5, she said.

During the legislative session that wrapped up earlier this year, a bill that would have reversed preemption did not make it out of committee. A statewide ban on polystyrene passed its committee but never got a vote on the Senate floor.

Environment Colorado has been working on three priorities when it comes to plastics, said Adair Andre, an advocate with Environmental Colorado, who was in Aspen earlier this month. These are a statewide polystyrene ban, a repeal of the local preemption law and a statewide grocery-store plastic bag ban.

Andre said she was in Senate District 5 because Donovan is considered a swing vote in the Senate — where Democrats hold a narrow majority — and Environment Colorado has been conducting outreach with constituents. While in Aspen, Andre met with Mayor Torre and staff from the city’s environmental health department.

“Our role is to say this is not controversial, and here is the input to back up that your constituents support this,” she said.

Torre ran on a platform that included strengthening Aspen’s environmental efforts and has spoken favorably about exploring expanded single-use plastics bans. If Donovan does indeed carry a bill amending local preemption and the bill becomes law, Aspen or any other Colorado town would be free to look into legislating alternatives to polystyrene. 

The move could be controversial with some of the restaurants that use the materials, but Donovan said restaurants would be central to any community’s conversation about the best path forward. In her experience, restaurants tend to be part of the solution when an initiative has local support, and they are good neighbors that are quick to donate gift certificates to a charitable cause or open their doors to groups needing a place to gather. That community spiritedness usually applies to efforts to reduce waste as well, she said.

Donovan was first elected in 2014 and reelected last year. She is the Senate majority whip and chair of the Agriculture and Natural Resources Committee.

Curtis Wackerle is the editor of Aspen Daily News. He can be reached at or on Twitter @CurtisWackerle.