I didn't reach that conclusion without basis. There has been a recent line of U.S. Supreme Court decisions that have consistently held that "waste" is commerce" and any discrimination against out of state waste violates the dormant commerce clause, including cases with such arguably legitimate basis as assuring a steady flow of waste to waste-to energy facilities funded by municipal bonds. For the reader's pleasure, the main cases are as follows:
City of Philadelphia v. New Jersey, 437 U.S. 617 (1978) holding that solid waste is an article of interstate commerce, and invalidating a New Jersey laww prohibitin the imporation of most waste from outside of New Jersey.
Chemical Waste Management, INc. v. Hunt, , 504 U.S. 334 (1992). The state of Alabama imposed a hazardous waste disposal fee on Haz waste generated outside of Alabama, but no fee was charge to in-state haz waste. Struck down by Supreme Court as unconstitutionally discriminatory on it's face, regardless of Alabama's justifications, pursuasive as they might appear.
Fort Gratiot Sanitary Landfill, INc. v. Michigan Department of Natural Resources, 504 U.S. 353 (1992) holding that Michigan's intercounty waste transportation restrictions (as applied to inter-state transfers) was unconstitutional.
Oregon Waste Suys., Inc. v. Department of Environmental Quality of the State of Oregon, 511 U.S. 93 (1994) Supreme Court struck down an Oregon surcharge on out-of state waste that was higher than the surcharge on in-state waste.
Finally, C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994), Supreme Court struck down so-called "flow control" ordinance that required all non-recyclable waste ve processed at the Clarkstown transfer station before leaving the municipality. Even though this ordinance applied to all waste, regardless of whether the waste was to be disposed of in-state or out-of-state, the Supreme Court nevertheless struck it down as unconstituional per se (i.e. "by itself" or "on its face").
If you'd like a list of all of the lower court decisions applying these decisions, I'd be happy to produce those too, but please read these first, to see if you really think there is still any wiggle room.
>>> "Tom Stephens" <firstname.lastname@example.org> 02/03/04 01:40PM >>>
I don't dispute the possibility that courts would, could or might interpret the commerce clause as argued by Mr. Vermeulen in such a case, if it ever goes that far. But to say that the scope of the commerce clause is a "simple fact" is really a misrepresentation. It wasn't just a "simple fact" in 1937 in the Jones & Laughlin case that permitted the New Deal to go forward, or at various other points in US history, and it isn't a "simple fact" now. Simple-minded broadsides don't help participants on this list understand and deal responsibly with the issues of the day. If an attorney wants to argue for such a conclusion, based on specific proposed statutory language and case law that is cited and analyzed so that it can be reviewed and understood, that's one thing. (Parenthetically, it might lead sponsors of anti-waste import legislation to develop new language designed to meet the applicable standards...) But to just announce that any legislation in Michigan would automatically "discriminate against out-of-state waste" and therefore be unconstitutional, is not a legitimate professional opinion (or at least is not presented and defended like one) so much as a shorthand political statement. I object, Your Honor.
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