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Re: E-M:/ Trash Imports to Michigan Skyrocket

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 waste.

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.

James Clift
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" <tstephens@sugarlaw.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. Tom Stephens
Guild/Sugar Law Center
733 St. Antoine, 3rd Floor
Detroit, Michigan 48226 USA
(313) 962-6540
(Fax) (313) 962-4492

----- Original Message -----
Sent: Tuesday, February 03, 2004 6:27 AM
Subject: 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 Farough" <Dfarough@house.mi.gov>

You can send a message urging Republicans to stop stonewalling anti-imported garbage legislation with parliamentary tricks by going to:


Monday, February 2, 2004                                         Contact: Dan Farough
Phone: (517) 373-2093
Cell: 517-303-5270

House Dems: New DEQ Report Shows 35 Percent Jump in Imported Trash
GOP failure to act keeps trash trucks rolling

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 alone.
"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 a year.
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," Gieleghem said.
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.
*    Since then, House Democrats have held 15 Town Hall meetings across the state;
*    Since then, House Democrats introduced a Trash-O-Meter device that measures in real time the amount of imported waste coming into Michigan;
*    Since 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."


Dan Farough
Press Secretary
House Democratic Communications

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