Barry Shanoff

September 1, 1994

4 Min Read
The Supreme Court Is On A Roll

Seldom does the U.S. Supreme Court rule on solid waste issues as often as it did this past term.

The Carbone decision struck down a municipal ordinance that restricted locally generated solid waste to a specific facility. And the City of Chicago case held that ash from MSW combustors was not automatically exempt from hazardous waste rules. However, the high court also handed down two other rulings that are likely to affect solid waste management.

In West Lynn Creamery v. Healy (No. 93-141), the justices, by a 7-2 margin, ruled that a state assessment on milk sold to Massachusetts retailers discriminated against interstate commerce. Two-thirds of the milk originated out of state, but only Massachusetts farmers benefited from the levy. The case has implications for government subsidies of MSW management facilities based on fees charged on incoming waste from all sources. A private out-of-state competing facility may claim that a violation of interstate commerce exists where a local jurisdiction exempts or credits local facilities from an across-the-board assessment or where revenues from the assessment are placed into a segregated fund which is later disbursed as rebates or subsidies to a local facility.

In Dolan v. City of Tiqard, the high court invalidated an attempt by a municipality to impose certain conditions or exactions on the owner of a business in exchange for a building permit. The exactions essentially required the owner to turn over portions of her property for public use without compensation. The 5-4 majority held that the city's requirements amounted to an uncompensated taking of property.

Significantly, the high court reiterated its adherence to the well-established principle of "unconstitutional conditions" - a governmental entity may not force someone to give up a constitutional right (e.g., the right to fair compensation when property is taken for public use) in exchange for a permit.

The Supreme Court ruled several years ago that a Commerce Clause violation can give rise to a claim under the Civil Rights Act. It's a short logical step to the next wave of lawsuits: MSW franchise holders who claim that franchise provisions restricting disposal options are unenforceable.

How To Zone For RCRA. A federal district court was wrong in upholding a county zoning law that banned the burning of hazardous waste as fuel without a permit, according to a federal appeals court. [Blue Circle Cement Inc. v. Rogers County Board of County Commissioners, 1994].

The district court had ruled that RCRA did not pre-empt the zoning ordinance and that the Commerce Clause of the U.S. Constitution did not forbid such a local law. The appeals court, however, criticized the lower court for not relying on adequate evidence and not doing a proper legal analysis.

Blue Circle mines stone and manufactures cement in Rogers County, Okla. The company decided to burn hazardous waste in its cement kilns instead of coal or natural gas. When County officials in-sisted that the zoning ordinance re-quired a special permit, the company filed suit in U.S. District Court for the Northern District of Okla-homa. The court issued a summary judgment upholding the ordinance.

The comprehensive federal laws that govern hazardous waste management may pre-empt the county ordinance, the appeals court wrote. However, the federal system is a regulatory floor, leaving states and lo-cal governments free to establish more stringent requirements.

When Congress wrote RCRA, it gave priority to recycling over land disposal in managing hazardous wastes, noted the appeals court. If the ordinance was really an indirect attempt by the county to exclude such recycling operations, then the ordinance would directly clash with federal policy. In conflicts, federal law usually prevails.

The district court was wrong to rule on the validity of the ordinance without vital testimony and other evidence, according to the appellate panel. As a result, it is impossible to determine if the ordinance represents more stringent requirements to suit local needs or an outright ban on recycling activities, the court said.

The Commerce Clause forbids any state or local regulation that blocks the flow of goods between and within states or that burdens interstate commerce to an extent outweighing the putative local benefits of the regulation.

Although appeals court conceded that the ordinance did not openly discriminate against interstate commerce, the three judge panel chided the district court for failing to develop evidence by which the court could compare the burdens and benefits of the ordinance.

The Tenth Circuit remanded the case to the district court with instructions to evaluate how the ordinance benefits the county, how it interferes with interstate commerce and how the county could promote its interests with a lesser impact on interstate commerce.

The appeals court's 30-page decision has been described as a how-to manual for local zoning officials in reconciling local needs with RCRA and Commerce Clause concerns.

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