(Or, The Real Reason Why the Can Ban Will Be Overturned) “You have medded with the primal forces of nature, Mr. Beale, and I won’t have it.” --Authur Jensen, from the movie “Network” If you want to understand why the New Braunfels can ban will ultimately be overturned, you only have to remember one number: $350,000.00. That’s the estimated amount of money that the Anheuser-Busch Corporation spent on political lobbying in the state of Texas last year. During the can ban debate, so much focus has been placed on the tubers versus the anti-tourism crowd that it’s easy to forget that the ordinance has political implications that potentially extend far beyond the city limits of News Braunfels and that possibly affect interests a little more powerful than a handful of tube outfitters.

The legality of the New Braunfels can ban ordinance is currently being challenged in a state district court. Let’s say, for the sake of argument, that the courts uphold the power of the city of New Braunfels to enact and enforce the ordinance. What happens in New Braunfels doesn’t stay in New Braunfels. The Legislature has never given New Braunfels a special dispensation of power that allows it to regulate litter on its rivers. Instead, the city argues that the power to enact a disposable container ban is inherent in what are called its “police powers” as a city, the power of a city, under Texas law, to use broad discretion to create ordinances design to protect public safety and promote the general welfare. What that means is that, if New Braunfels has the power to outlaw disposable containers, then other cities in Texas have the power to enact similar bans, as well. Houston could. And Dallas. And San Antonio. And Fort Worth. And Austin. And so on.

In addition, there would be nothing about such a power that would be limited to rivers. Can ban proponents, remember, argued that their ordinance was not about controlling alcohol of the river. Cities in Texas can already petition the Texas Acoholic Beverage Commission to restrict the sale and possession of alcohol in certain areas. New Braunfels, a few years ago, asked for just such permission from TABC and was turned down. Rather, New Braunfels contends that the can ban ordinance is reasonably related to controlling litter. Litter happens everywhere. If a city has the power to enact a disposable container ban for litter control, it could create a disposable container free zone anywhere inside its city limits. How long do you think it would take, for instance, for some creative city councilman somewhere to decide that litter is suddenly a big concern in the area where that “gentlman’s club” is located, you know, the one that some of his constituents have been complaining about lately? Wouldn’t a disposable container ban at the location be an appropriate remedy? You get the idea. But let’s say that the courts narrowly interpret the ordinance.

A court might find that there is something unique about the problem of litter on a waterway that permits the ordinance to stand. Again, the effect of the decision would reach beyond New Braunfels. Presumably, all disposable containers could be banned on the beaches in Galveston and South Padre Island, on other rivers that flow through cities, such as the riverwalk area in San Antonio, or on lakes located in city limits, such as Lake Ladybird in Austin. Now pretend that you work in Texas as a marketing executive for Anheuser-Busch, or Coke, or Pepsi, or any other corporation that sells its products in disposable containers. What would you think of a court decision that gave Texas cities the power, for all intents and purposes, to outlaw your product without any check or balance from any other political entity? You probably wouldn’t think very much of it. You’d probably get on the phone to your $350,000.00 worth of lobbyists and make sure that equilibrium was restored to the universe. I don’t think the can ban ordinance is going to fair too well in the courts. But if it is upheld, the can ban still has to survive the political forces of nature at the state level. If it comes to betting on New Braunfels City Council versus the beverage industry in the Texas Lege, I’d put my money on the forces of nature.