STATES’ RIGHTS : High Court Tries to Clear Up Disputes Over Waste Disposal

Waste is big business. Each year, an estimated 250 million tons of hazardous waste are produced in the United States. Another 200 million tons of garbage are generated annually and must be disposed of in landfills.

But where? States and localities appear to agree on only one answer: NIMBY, as in “not in my back yard.”

None of the states want to become “dumping grounds” for waste produced elsewhere, and state lawmakers have been enacting new measures to keep out the unwanted byproducts of an industrial society.

But the new laws are running up against an old legal principle. The Constitution has long been interpreted by the Supreme Court as forbidding any discrimination against interstate commerce. Products can flow freely across state lines, the court has said, and a state may not impose tariffs or other charges on out-of-state goods.

That principle is being put to a new test in two cases this spring.

BACKGROUND: A Michigan law forbids an operator of a landfill to accept out-of-state garbage unless given permission to do so by county and state officials. When officials in St. Clair County, Mich., blocked all incoming shipments of solid waste, a landfill owner filed suit in federal court.

“We don’t want our landfills to be the dumping grounds for the East Coast,” said Thomas L. Casey, the Michigan state attorney who defended the law in last month’s Supreme Court hearing of the case, Ft. Gratiott Landfill vs. Michigan Department of Natural Resources, 91-636. “We think it is appropriate that local officials make the decisions on what is needed to protect the health and safety of their citizens, rather than leave it up to a commercial landfill operator.”

In another case, Alabama lawmakers in 1990 imposed a $72-per-ton fee for “waste and substances which are generated outside of Alabama and disposed at a commercial site . . . in Alabama.” That measure will be challenged in the Supreme Court next Tuesday in the case of Chemical Waste Management vs. Hunt, 91-471.

“The law clearly discriminates against interstate commerce,” said Andrew J. Pincus, a Washington lawyer who represents Chemical Waste Management Inc. The company owns a landfill near Emelle, Ala., which is said to be the largest hazardous waste dumping facility in the United States. Federal regulators say it is one of only two landfills east of the Mississippi River that is authorized to dispose of polychlorinated biphenyls (PCBs).

Lawyers for the company say interstate transportation of hazardous waste is essential because most states do not have landfills that can accept all types of waste. For example, California has some 30 oil refineries but no commercial hazardous waste incineration capacity for refinery wastes.

In 1978, the Supreme Court appeared to have settled this issue. In a case called City of Philadelphia vs. New Jersey, the justices struck down a New Jersey law that prohibited shipments of garbage from Pennsylvania into New Jersey. States cannot erect “a barrier against the movement of interstate trade,” the court said.

But both the Michigan and Alabama laws were upheld last year by lower courts. They said hazardous and municipal wastes were not truly items of commerce, a position taken in a 1978 dissent by then-Justice William H. Rehnquist. They also said state officials have health and safety reasons for restricting the dumping of wastes.

OUTCOME: Bush Administration lawyers, who are likely to prevail, have urged the justices to strike down the state laws. The shipment and disposal of hazardous waste is better regulated by federal officials than by individual states, they said.

“The generation of waste, including hazardous waste, is a necessary component of any economy based on manufacturing,” the Justice Department said in the Alabama case.

A third case before the court raises a quite different legal issue. With only three states having dump sites for low-level radioactive waste, Congress in 1985 passed a law requiring all states to either find a facility by 1996 or “take title” to all such waste produced within their borders. New York is now challenging the law as an intrusion on its “sovereignty.”