Struck Down

Melanie Lasoff Levs Contributing Editor Atlanta

A U.S. DISTRICT COURT has overturned an ordinance passed by the Wayne County, Michigan commission in August 2003 designed to limit waste imports from other states and especially Canada, ruling it unconstitutional.

The ordinance required that any community sending waste to Wayne County have a beverage container law similar to Michigan's 10-cent per bottle requirement, as well as have comparable recovery rates. In other words, communities that did not have comparable recovery rates would not be permitted to import their waste to Wayne County, according to the ordinance.

“We felt it was a fair way to mandate the trash coming in,” says Kurt Heise, director of the Wayne County department of environment, adding that county officials had been working to restrict waste imports since January 2003. “We're supposed to be responsible for our own waste. When you start adding this imported waste, it makes it difficult for us to find a place to put our own trash.”

David Biderman, general counsel for the Washington, D.C.-based National Solid Waste Management Association (NSWMA), which filed the lawsuit against the ordinance, says the ordinance is hypocritical. “It's ironic that Wayne County takes this position [when] Michigan exports tens of thousands of tons of hazardous waste every year to Canada,” he says. “It's not about landfills getting filled up — they just don't want to be a depository for other people's trash.”

In September 2003, the NSWMA and Republic Services of Michigan — operator of Carleton Farms Landfill in Wayne County — filed a federal lawsuit. They claimed the ordinance restricted movement of municipal solid waste (MSW) into the county, impeded free interstate flow and made interstate commerce in solid waste more expensive than in-state commerce, violating the Commerce Clause of the U.S. Constitution. In February 2004, a U.S. District judge agreed.

“The law in this area is quite well-settled,” Biderman says. Yet it is common for jurisdictions to create ordinances to keep waste out from other areas.

So why do jurisdictions continue to pass ordinances?

“It appears local governments are responding to political considerations, not paying close attention to the legal constraints on them,” Biderman explains.

However, Wayne County is paying attention, according to Heise. “Apparently, there is no way under the Constitution or federal law to stop or even attempt to regulate the flow of waste from out of state,” he says, noting that county officials now will start lobbying state and Congressional leaders, and support a similar statewide ordinance that recently passed. Waste importation is an ongoing county and state issue, Heise says. “Michigan does not want to be a dumping ground for states and provinces around the Great Lakes.”