Judge Blocks Enforcement of Virginia Garbage Laws

Melanie A. Lasoff

In another recent ruling focusing on the U.S. Constitution's Commerce Clause, a federal judge in Virginia last month blocked enforcement of the state's new laws restricting out-of-state garbage.

The plaintiff, Houston-based Waste Management Inc. (WMI), which hauls trash from other states into Virginia, originally had won a contract from New York City to transport and dispose of 4,000 additional tons of trash per day. The company would continue disposing waste from the city in Virginia after New York's Fresh Kills Landfill closes in December 2001.

In response to WMI's contract, Virginia passed several laws restricting out-of-state garbage. WMI argued that those laws violate the U.S. Constitution provision that gives authority on interstate commerce solely to the federal government.

Virginia's laws would have:

* Capped landfill growth at either 2,000 tons per day (tpd) or the average amount accepted by the landfill in 1998, whichever is greater;

* Restricted the use of barges for transport of solid waste on Virginia's waterways;

* Required that containerized waste be stacked no more than two high; and

* Prohibited transport of waste on three Virginia rivers, according to court documents.

The laws had been signed by Virginia Gov. James Gilmore and were to go into effect July 1. But the recent injunction prohibits the laws' implementation.

"The court is satisfied that failure to [prohibit] the cap provision and the barging restrictions will irreparably harm [the] plaintiffs," U.S. District Judge James Spencer stated in his decision. "Not only will they have to immediately curtail their present disposal of waste at certain landfills and divert that waste to other landfills at greater cost, but they may lose potential business opportunities as well."

Virginia appealed the decision to the 4th Circuit Court of Appeals, but was rejected, according to David Botkins, spokesperson for Virginia Attorney General Mark Early. The permanent injunction hearing is set for early December.

Botkins calls the decision disappointing, but says the state is working on its case.

"We have a statutory obligation to defend the laws of the Commonwealth [of Virginia] when they are challenged," he says. "We are set to argue the case on its merits."

Until the hearing, WMI will continue to transport waste to Virginia, according to Tom Corbett, assistant general counsel for government affairs for WMI. However, the company has not started using barges yet, he says.

"We're waiting to see what happens with that [in court]," he says.

Corbett says WMI is pleased with the ruling. "We wouldn't have brought the suit if we didn't believe there was a better than even chance of us prevailing," he says.

Virginia is the nation's second-largest garbage importer, with most of the out-of-state garbage coming from New York City. And, it is the state's obligation to treat the waste the same as any other type of commerce, the judge's decision said.

"It is beyond question that the free flow of waste across state lines is protected by the Commerce Clause," Spencer wrote in his decision, "and that the states have no more power to discriminate against its importation than they do to discriminate against other articles of commerce."