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Local rights on waste transport preempted by court.

In separate opinions limiting the rights of local governments, the U.S. Supreme Court ruled that the Commerce Clause prohibits state and municipal governments from differential treatment of out-of-state waste. In the absence of an outright ban on commercial waste disposal, the companion rulings may make it virtually impossible for states and municipalities to avoid the importation of both solid and hazardous waste.

The rulings were issued on June 1.

In Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, the Court upheld a Commerce Clause challenge to a Michigan law prohibiting private landfill operators from accepting solid waste originating outside the county in which their facilities operate. In striking down that law, the majority adhered to the Court's 1978 decision in Philadelphia v. New Jersey where it found New Jersey's prohibition of solid waste from outside that state to amount to economic protectionism barred by the Commerce Clause.

The issue before the Court in Chemical Waste Management, Inc. v. Hunt was whether Alabama's $72 dollar per ton fee for in-state disposal of hazardous waste generated outside the state violates the Commerce Clause. In an opinion delivered by Justice Byron White, a majority of the justices found that although the additional fee discriminated both on its face and in practical effect, the additional fee might nevertheless have withstood a constitutional challenge had the state met its burden of showing that the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism." This, the Court ruled, Alabama failed to do.

In his dissenting opinion, Chief Justice William Rehnquist cautioned that the majority had refused to acknowledge that a safe and attractive environment--not hazardous waste--is the commodity really at issue in these cases. "The Court," Rehnquist noted, "continues to err by its failure to recognize that waste--in this case admittedly hazardous waste, presents risks to the public health and environment that a state may legitimately wish to avoid, and that the state may pursue such an objective by means less Draconian than an outright ban."
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Title Annotation:Supreme Court
Author:Herber, Kate
Publication:Nation's Cities Weekly
Date:Jun 8, 1992
Words:337
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