Abrams, Robert H

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Florida Agricultural & Mechanical University College of Law

Florida A&M University College of LawScholarly Commons @ FAMU LawJournal Publications Faculty Works1992Keeping Out Non-Local Garbage: An End-RunAround the Dormant Commerce Clause?Robert H. AbramsFlorida A&M University College of Law, robert.abrams@famu.eduFollow this and additional works at: http://commons.law.famu.edu/faculty-researchPart of the Environmental Law Commons, and the Water Law CommonsThis Article is brought to you for free and open access by the Faculty Works at Scholarly Commons @ FAMU Law. It has been accepted for inclusion inJournal Publications by an authorized administrator of Scholarly Commons @ FAMU Law. For more information, please contactlinda.barrette@famu.edu.Recommended CitationRobert H. Abrams, Keeping Out Non-Local Garbage: An End-Run Around the Dormant Commerce Clause? 1991-92 Preview U.S.Sup. Ct. Cas. 340 (1992)ENVIRONMENTAL LAWKeeping out non-local garbage: An end-run aroundthe dormant Commerce Clause?by Robert H. AbramsFort Gratiot Sanitary Landfill, Inc.v.Michigan Department of Natural Resources, et aI.,(Docket No. 91-636)Argument Date: March 30,1992ISSUEDoes a state statute that prohibits the disposal within acounty of any solid waste that has been generated outside thecounty, including all out-of-state waste, impermissibly dis-criminate against interstate commerce in violation of theCommerce Clause of the United States Constitution?FACTSThe underlying statutory provisions in this case are some-what more complex than in other contemporary casespresenting dormant Commerce Clause challenges to statelaws that limit the interstate movement of solid waste. Here,the primary statutory command of section 13a of theMichigan Solid Waste Management Act, Mich. CompoLawsAnn. § 299.413a (1991 Supp.), prohibits anyone from accept-ing for disposal "solid waste or municipal solid waste in-cinerator ash that is not generated in the county in which thedisposal area is located unless the acceptance of [out-of-coun-ty material] is explicitly authorized in an approved countysolid waste management plan."The county solid-waste management plan process thatmight give authorization for accepting out-of-countymaterials is somewhat cumbersome. A thumbnail sketch ofthe steps required to gain approval of a plan include (1)adoption by the county board of commissioners, (2) approvalby the governing bodies of not less than 67 percent of themunicipalities within the county, and (3) approval by theDirector of the Michigan Department of Natural Resources.In this case, the county in which the Fort Gratiot SanitaryLandfill site (hereinafter Fort Gratiot) is located, St. ClairCounty, had a solid-waste management plan that did notauthorize the acceptance of out-of-county materials at anyin-county landfills.In early February 1989, Fort Gratiot approached St. ClairRobert H. Abrams is professor oflaw at Wayne State Univer-sity School ofLaw, Detroit, MI48202; telephone (313) 577-3935.340County officials seeking an amendment to that county'ssolid-waste management plan to allow Fort Gratiot to import1,750 tons of out-of-county solid waste per day. Theauthorization would have more than quadrupled operationsat the landfill site that was then accepting 500 tons per day ofin-county waste. Using 65 cubic yard trucks, this increase inactivity would have amounted to the delivery of roughly 80extra truckloads ofsolid waste each day. Relying on a countywaste planning commission report that landfilling wastes atthat rate would exhaust all remaining in-county approvedmunicipal solid-waste landfills within six years, the countyofficials declined to go any further with the requested amend-ment of the county solid-waste management plan.Within days of that determination, in March 1989, FortGratiot initiated this litigation challenging the legislativescheme as impermissibly discriminating against out-of-statewaste being transported to privately owned and operatedlandfills such as theirs. No challenge was raised to the statuteas it applied to publicly owned facilities. Fort Gratiot'schallenge was rejected by both the United States DistrictCourt and by the United States Court of Appeals for the SixthCircuit. See Bill Kettlewell Excavating, Inc. V. MichiganDepartment ofNatural Resources, 931 F.2d 413 (1991).BACKGROUND AND SIGNIFICANCEThis case and another pending Supreme Court case,Chemical Waste Management,lnc. v.Hunt (previewed in thisissue at page 337), require the Court to revisit the dormantCommerce Clause in the increasingly important context ofstate efforts to limit and control the importation of wastematerials generated in other states. (The operation of thecommerce clause in this setting is referred to as "dormant"because the power of the federal government acts as a limiton state power without affirmative congressional legislativeaction.) Here, an "in-county only" rule is being applied toprivate facilities that provide disposal for "ordinary" solidwaste (predominantly municipal trash and its associated in-cinerator ash), while the Chemical Waste case involves astate-imposed tipping fee system (i.e., a tax) that requireshazardous waste imported from other states to be taxed at asubstantially higher rate than hazardous waste that isgenerated in-state.The states are being pushed in the direction of restrictingaccess to their waste disposal sites by a number of factors.The citizenry, alarmed by news of environmental disasterssuch as Love Canal and Times Beach, have become militantin their opposition to siting waste disposal facilities. WhilePREVIEWthis trend (frequently called the NIMBY-not in my backyard-phenomenon) applies with greatest force in the haz-ardous waste field, even landfills accepting only municipalsolid waste can pose an environmental threat to aquifers andsome nearby surface streams. Thus behind the public outcrylie genuine environmental and public health concerns, tradi-tionally areas of regulation lying near the heart of the states'police power.At the same time public sentiment presses for protectionagainst importing environmental problems as a by-product ofimporting waste, as a matter of intrastate economics andplanning, excluding such waste benefits all segments of thelocal populous except the operator of the landfill. By legis-lating away non-local competition for use of the landfillspace, the demand for that space is reduced, meaning that theprice of disposal for locally generated waste will be lower.Just as important, in areas where acceptable landfill sites arerare, a local-only rule extends the effective life of the landfillsites as repositories for locally generated wastes by prevent-ing them from being filled with imported waste in the mean-time. Applying these precepts to the current case, it seemsfair to conclude that in the absence of regulation that blockswaste importation, Fort Gratiot would be able to both (1)charge a higher price for all waste accepted and (2) fill thedumpsite more quickly.As a matter of legal doctrine, the dormant CommerceClause has long stood as a bulwark against myriad forms oflocal protectionism. One hallmark phrase that captures thesentiment of many of the cases expresses an anti-Balkaniza-tion principle when it declares, "Our economic unit is thenation." Looking more narrowly at the precedents that mostclosely resemble this case, two come to mind. First, inPhiladelphia v. New Jersey, 437 U.S. 617 (1978), the Courtinvalidated New Jersey's effort to exclude from in-statelandfills out-of-state solid waste of the sort involved in thiscase. Second, in Dean Milk v. City ofMadison, 340 U.S. 349(1951), the Court invalidated a local ordinance that dis-criminated in favor of local dairies to the disadvantage of bothout-of-state and non-local in-state producers. While thesetwo cases seem to point toward an outcome favoring FortGratiot, there are factors pointing the other way also. Initial-ly, the composition of the Court has changed since Philadel-phia was decided in 1978, and Justice (now Chief Justice)Rehnquist wrote a strong dissent in that case arguing in favorof the right of states to forbid out-of-state waste. Additional-ly, at least one intervening case, Maine v. Taylor, 477 U.S.131 (1986), upheld a ban on the importation ofbaitfish wherethat ban was found to be vital to protecting aspects of thestate's environment.It is difficult to gauge the significance of this case. Anydecision that validates a means for restricting landfill spaceto in-state residents is bound to have some potential forencouraging similar legislation in other states. Laws thaterect only local discrimination, such as that in effect herefavoring only in-county waste generators, may not pose muchof a problem for the nation and may not be widely copied.Issue No. 10Local discrimination will frequently have only marginal im-pacts on interstate commerce. Beyond that, local option laws,because they disadvantage many would be in-state customerswho are not local, are less likely to win political support inthe state legislature where citizens feeling part of theregulatory burden are represented. Thus, it seems fair topredict that even if the Court affirms the validity of theMichigan statute in this case, there will not be the same rushto emulate the Michigan legislation as would occur if theCourt upheld a law that discriminated exclusively againstout-of-state waste.ARGUMENTSFor Fort Gratiot Sanitary Landfill, Inc. (Counsel ofRecord,Harold B. Finn III; Finn, Dixon & Herling, One LandmarkSquare, Stamford, CT 06901; telephone (203) 964-8000):1. The state law in this case impermissibly discriminatesagainst interstate commerce even though the same lawinterdicts some intrastate commerce in the same articles.2. Even though the case may be treated as involving naturalresources, the ordinary jurisprudence of dormant Com-merce Clause cases applies, and the statute here is there-fore subject to the strict scrutiny given to discriminatorylegislation.3. The waste-importation restrictions at issue here do notserve a legitimate local purpose, nor are they the leastcommerce-burdensome method of achieving the state'sobjectives.For the State of Michigan (Counsel of Record, Thomas L.Casey, Assistant Solicitor General, PO Box 30212, Lansing,M148909; telephone (517) 373-1124):1. The law at issue regulates an area of legitimate localconcern and does so in an even-handed fashion.2. This legislation is not facially discriminatory against in-terstate commerce and, at most, imposes only an inciden-tal burden on that commerce.3. There are no less commerce-burdensome alternatives thatadequately protect Michigan's legitimate waste manage-ment and environmental interests.4. The market participant doctrine and principles of statesovereignty protect this Act against dormant CommerceClause invalidation.For St. Clair County (Counsel ofRecord, Lawrence R. Ter-nan; Beier Howlett, 200 E. Long Lake Road, STE 110, Bloom-field Hills, M148304-2361; telephone (313) 645-9400):1. The legislation has the legitimate purpose of managingsolid waste, does not discriminate against interstate com-merce, and has only minimal effects on interstate commerce.2. Strict scrutiny should not be applied in this case wherethere is a legitimate local purpose and the statute is not aneconomic protectionist measure.3. Regulation of solid waste is a fundamental responsibilityof state and local governments in their primary role asprotectors of the environment.341

Keeping Out Non-Local Garbage: An End-Run Around the Dormant Commerce Clause?

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