I would submit that there are two places for "wiggle" room.
1) Health-based restrictions
2) Across the board bans that apply equally to in-state trash (such
as yard waste and beverage containers)
Show me a case in which an across the board ban from any source (in-state
or out-of-state) was struck down.
On the health-based issue:
In 1992, the U.S. Supreme Court in the Fort Gratiot Landfill, Inc. V.
Michigan Department of Natural Resources struck down the provision of the
Michigan Solid Waste Management Act which allowed counties through the
solid waste planning process to prohibit the disposal of waste in their
county that was generated outside the state. However, the decisions
stated explicitly, “Of course, our conclusion would be different if
the imported waste raised health or other concerns not presented by Michigan
Therefore, it appears the U.S. Supreme Court may allow restrictions,
if those restrictions are based on health concerns posed by the waste is
not presented by Michigan waste.
However, the state will also have the burden of showing that the health
and safety concerns which are the basis of the restriction cannot be achieved
in a less discriminatory manner (Fort Gratiot at p. 12). Therefore,
the state will need to demonstrate that some other inspection method would
not achieve the same goal.
Michigan law bans from the solid waste stream items such as batteries
and used oil that can either leak from a landfill or increase emissions
from a municipal solid waste incinerator. Proponents of the restrictions
argue that if a state or country does not ban these items, the risk of
these items commingling with other solid waste is substantially increased.
They contend the success in removing these items from the solid waste stream
does not come from enforcement efforts by the Department of Environmental
Quality or from the facility owners, but through the establishment of alternative
mechanism to manage these waste streams. Many of the prohibited items
covered are not large, and can fit inside your average garbage bag.
Thus, random inspections would not be a cost effective method to prevent
the disposal of these items due to their inclusions on a random basis.
The issue of whether a total prohibition of waste from an offending
state would be a valid restriction is a factual determination that would
need to be made by a court of law. The court would need to examine
evidence of the effectiveness of the various means to enforce the restriction
to determine if a less discriminatory manner of enforcement is available.
Michigan Environmental Council
Kenneth Vermeulen wrote:
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. Ken
>>> "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
Guild/Sugar Law Center
733 St. Antoine, 3rd Floor
Detroit, Michigan 48226 USA
(Fax) (313) 962-4492
Original Message -----
Tuesday, February 03, 2004 6:27 AM
Re: E-M:/ Trash Imports to Michigan Skyrocket
For whatever its worth, You
can blame this on Republicans as long as you like. The simple fact
remains that under the dormant commerce clause of our federal Constitution,
states (including Michigan) are prohibited from passing the kind of legislation
that would discriminate against out-of-state waste. This issue has
been addressed head on by the Supreme Court. The only body that can
prohibit Canadian waste from entering the US is Congress. Ken
>>> "Daniel Farough" <Dfarough@house.mi.gov>
02/02/04 04:05PM >>>
Enviro-Mich message from "Daniel
You can send a message urging
Republicans to stop stonewalling anti-imported garbage legislation with
parliamentary tricks by going to:
FOR IMMEDIATE RELEASE
Monday, February 2, 2004
Contact: Dan Farough
Phone: (517) 373-2093
House Dems: New DEQ Report
Shows 35 Percent Jump in Imported Trash
GOP failure to act keeps trash
LANSING ---- A disturbing state
report released today reveals a 35 percent overall jump in the amount of
Canadian and out-of-state trash being dumped in Michigan landfills in the
last year, including a 43 percent increase in the amount of Canadian trash
"For more than a year, House
Republican leaders have stonewalled our efforts to stop the importation
of trash into Michigan from other states and Canada," House Democratic
Leader Dianne Byrum (Onondaga) said. "Unfortunately for the people of Michigan,
this report shows that we are still being buried in imported waste, while
Republican leaders sit on their hands and do nothing."
The report, released by the
state Department of Environmental Quality, means that instead of 200 Canadian
garbage trucks rolling into our state each day, Michigan now gets 286 trash
trucks from Canada alone crossing our border every single day.
In fact, the Trash-O-Meter
--- a device developed by House Democrats that measures in real time the
amount of imported waste coming into Michigan has had to recalibrate to
calculate the higher numbers. According to the Trash-O-Meter, 5.16 million
tons of trash or more than 147,000 truckloads of imported trash were dumped
into Michigan landfills in the last year.
Representative Kathleen Law
(D-Gibraltar), a leader in the anti-trash fight, vowed to keep up the pressure
on Republican leaders to "stop listening to their friends in the waste
industry and start listening to the people they represent."
"We are not going to stop
until the trucks stop," Law said. "This report debunks the waste industry's
claims that less and less foreign trash is coming here. The truth is that
they're still trying to turn our state into a dumping ground. We're going
to fight them every step of the way, hopefully with bipartisan support.
If not, we certainly have the public's support."
The lawmakers also praised
Governor Jennifer Granholm for highlighting the anti-trash fight in her
State of the State address and for urging the Republican-controlled Legislature
to pass the anti-Canadian trash bills that have been held up for more than
Rep. Paul Gieleghem (D-Clinton
Township), who has spearheaded the anti-Canadian trash effort, renewed
his call to pass House Bill 4099, which would add pop bottles and cans
to the list of items prohibited from disposal in Michigan landfills.
"My bill to add pop bottles
and cans to the list of items prohibited from disposal in Michigan landfills
is the key to pushing back the rising tide of Canadian trash into Michigan,"
The Democratic lawmakers also
expressed gratitude to the concerned citizens of Michigan for pressuring
reluctant Republican leaders into acting on anti-trash legislation that
Democrats have been championing for more than a year.
From the beginning, the anti-trash
bills earned bipartisan support. However, the bills were stalled by House
Republican leaders since they were introduced on Jan 29, 2003.
then, House Democrats have held 15 Town Hall meetings across the state;
then, House Democrats introduced a Trash-O-Meter device that measures in
real time the amount of imported waste coming into Michigan;
then, House Democrats have held more than a dozen press conferences; and,
launched a yard sign campaign and petition drive.
* And, since
then, more than 5.16 million tons of imported trash, or 9.8 tons every
minute, have been dumped in Michigan.
Added pressure came when a
statewide grassroots campaign spearheaded by local Democratic Party organizations
in places stretching from Monroe County near the Ohio border all the way
to Marquette in the Upper Peninsula picked up steam as citizens rallied
in support of the anti-trash legislation.
"In golf, they put you on
the clock when you're playing too slowly," Law said. "The DEQ report, the
Trash-O-Meter and the people of Michigan are putting House Republican leaders
on the clock. We need to pass anti-Canadian trash legislation before the
clock runs out."
House Democratic Communications
Internet List and Forum for Michigan Environmental
and Conservation Issues and
Michigan-based Citizen Action. Archives at
Postings to: email@example.com
For info, send email to
with a one-line message body of "info enviro-mich"