Un-Happy Gilmore

The appeals court found that the measures were discriminatory … preserving landfill space and slowing the flow of out-of-state waste into Virginia.

The U.S. Constitution severely limits the power of states to restrict solid waste imports, according to a ruling by a federal appeals court. [Waste Management Holdings Inc. v. Gilmore, No. 00-1185, 4th Cir., June 4, 2001]

“We're going to fight hard,” said Virginia Gov. James S. Gilmore III in a June 1999 radio broadcast. “Virginia cannot become the dumping ground for garbage from New York or anywhere else.” He vowed to take the matter “all the way to the Supreme Court.”

At the time, the governor and his legislative allies had just gotten word that the U.S. Court of Appeals for the Fourth Circuit had upheld a preliminary injunction, which blocked the state's new restrictions on the shipment and disposal of out-of-state waste.

Only a few weeks earlier, Gov. Gilmore had signed into law five statutory measures: (1) daily tonnage caps at Virginia landfills; (2) limited stacking of containerized waste on barges; (3) a ban on waste transport by barge on three major Virginia rivers; (4) truck payload certification; and (5) special requirements for waste vehicles with four or more axles.

Virginia landfill operators, waste transporters and a local government, which hosts a landfill, promptly filed suit in federal district court against Gov. Gilmore and various state officials, charging that all five provisions unlawfully restricted the interstate movement of waste and, with respect to the barge restrictions, were pre-empted by federally issued licenses for vessels in coastline trade.

Following a hearing on the merits, U.S. District Judge James R. Spencer, who had issued the injunction the previous June, ruled that the state's legislative scheme unlawfully discriminated against interstate commerce.

On appeal, a Fourth Circuit three-judge panel, for the most part, upheld the district court's ruling, but it gave slightly different reasons.

Three of the provisions — the daily volume cap, the truck waste-content certification and the four-or-more-axle rule — did not expressly single out interstate waste traffic, the appeals court noted. But it found that the measures were discriminatory in purpose and effect: preserving landfill space and slowing the flow of out-of-state waste into Virginia. Among other things, the opinion cited statements by the governor's legislative allies and noted the well-publicized feud between Gov. Gilmore and New York City Mayor Rudolph Giuliani over trash shipments. The court also noted that the state had failed to demonstrate that less burdensome approaches were unworkable.

The appellate panel also held that federal licensing of vessels pre-empted the three-rivers ban, but nevertheless refused to strike down the stacking requirement. Instead, it remanded the case to the district court where the state will have a chance to prove that valid reasons exist for restricting the height of container shipments on barges on the three rivers.

Almost as a footnote, the appeals court handed the governor a small personal consolation: He was allowed to bow out as a defendant. Nonetheless, he still can make good on his threat to go to the Supreme Court.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: shanoff@knopf-brown.com.