Oct 23: Environmental Defense Fund (EDF) filed a notice of intent to sue U.S. EPA for its failure to update emission standards for hundreds of landfills nationwide. EDF says that landfills are the nation’s second largest source of manmade methane pollution. Methane is a potent greenhouse gas and a contributor to the smog air pollution that is associated with respiratory illnesses affecting millions of Americans. EDF cites a September report from the U.S. Climate Change Science Program issued declaring measures to reduce methane emissions a “clear win-win” solution. Vickie Patton, EDF Deputy General Counsel said, “Capturing the waste gas leaking from the nation’s landfills and converting it to a local source of energy is a trifecta for the nation’s economy, environment and energy security. Converting methane pollution to a homegrown energy source is a common sense solution to address global warming and protect our kids’ health while boosting our economy.”
EDF said in a release, "EPA has failed to update the emission standards for landfills for a dozen years, violating its duty under the nation’s clean air laws to modernize the emission standards at least every eight years." According to statistics cited by EDF, methane is a potent global warming gas -- about 21 times more powerful at warming the atmosphere than carbon dioxide (CO2). Municipal solid waste landfills are the second largest source of human-related methane emissions in the United States, accounting for nearly 23 percent (125 Tg CO2 eq.) of emissions in 2006. These emissions are comparable to nearly three times the total carbon dioxide emissions released from all of the nation’s cement manufacturing. And the U.S. is responsible for about 18% of global methane emissions from landfills – equal to the landfill emissions of Canada, Mexico, China and Russia combined.
EDF indicates that a number of landfills around the country are already utilizing this energy from methane. The 16.6 million tons-in-place Lopez Canyon landfill, run by the Los Angeles Bureau of Sanitation, produces 7.1 megawatts of energy, enough to power 4,500 homes. And the Coffin Butte Landfill in Oregon produces enough methane to generate 5.66 MW and power 4,000 homes. While many landfills are realizing the economic benefits of capturing and utilizing the energy from methane, there are still hundreds of landfills across the nation missing this critical opportunity.
As WIMS previously reported on October 1, 2008, Waste Management, Inc. announced its plans to use its expertise as the nation's largest developer of landfill gas to energy (LFGTE) projects to partner with private and municipal landfill owners to develop the country's untapped landfill gas resources. The company said it is the first in the waste management industry to launch such a program [See WIMS 10/3/08]. Last year the company set an ambitious goal to develop up to 60 LFGTE projects at its landfills by 2012. To date the company has completed or launched the development of over a dozen projects across North America.
Waste Management reported that there are currently 445 LFGTE sites in operation across the country, but U.S. EPA's Landfill Methane Outreach Program (LMOP) has identified 535 additional sites (out of 1,700 total operating landfills) as promising candidates for LFGTE facilities. Fully developed, LMOP estimates these additional landfills could produce over 1,200 megawatts of electricity.
In its notice of intent to commence legal action, EDF calls upon U.S. EPA, "to review and revise its New Source Performance Standards [NSPS] and Emissions Guidelines for emissions of air pollution from new and existing solid waste disposal sites, and hereby provides notice pursuant to Section 304 of the Clean Air Act of its intent to sue the agency for failure to satisfy its statutory obligations to review and revise these standards and guidelines in light of current information concerning the environmental harms associated with these emissions." EPA established the current NSPS for new MSW landfills and emission guidelines for existing landfills in 1996. At that time EPA determined that a gas collection and control system which relied on the use of flares constituted BDT [Best Demonstrated Technology] for new and existing sources subject to the standard and guidelines.
EDF indicates in its notice, "Technological developments and changes in energy markets, including the price of natural gas, since 1996 have significantly altered the feasibility and economics of landfill gas-to-energy (LFGTE) projects. As EPA itself has recognized, LFGTE is demonstrably feasible even for smaller landfills." EDF notes, under the CAA, EPA must consider reductions achieved in practice when revising the NSPS for a particular source category whenever emissions reductions “beyond those required by the standards…are achieved in practice.” 42 U.S.C. § 7411(b)(1)(B). EDF says, ". . .numerous gas capture and reuse technologies are available today that produce significantly greater methane emission reductions than produced by flaring and are economical for a larger number of landfill operators. Accordingly, the NSPS no longer reflects BDT."
Access a release from EDF and link to a FOIA response and the cited CCSP report (click here). Access the 14-page notice of intent to sue (click here). Access a 10/1/08 release from Waste Management with further details (click here). [*Solid, *Air, *Climate]
Showing posts with label Solid Waste. Show all posts
Showing posts with label Solid Waste. Show all posts
Friday, October 24, 2008
Monday, April 07, 2008
Paper Or Plastic? Seattle Officials Say Neither!
Apr 4: On April 2, Seattle, Washington's Mayor Greg Nickels and City Council President Richard Conlin proposed a 20-cent “green fee” on all disposable shopping bags at the city’s grocery, drug and convenience stores. They said a recent city-sponsored report determined that both paper and plastic are harmful to the environment. The proposal also calls for a ban on foam containers in the food service industry. If adopted by the City Council, the waste prevention measures would take effect Jan. 1, 2009. Nickels and Conlin said the bag fee and foam ban will cut down on waste, reduce the use of environmentally harmful plastics and cut the production of greenhouse gases.
Mayor Nickels said, “The answer to the question ‘paper or plastic’ is neither -- both harm the environment. Every piece of plastic ever made is still with us. The best way to handle a ton of waste is not to create it. This proposal is all about forming new habits. Taking a reusable bag to grocery stores and pharmacies is a simple thing that has an enormous impact.”
On April 4, the American Chemistry Council (ACC) said the Seattle proposals would will have negative consequences on the local environment, the economy and the school system. ACC said plastic recycling is a superior alternative for the environment and for the community’s economic health. ACC encouraged the City of Seattle to join a growing number of cities and states by supporting plastic recycling programs for bags and food containers.
ACC indicated in a release that plastic bags are a good choice for the environment. It takes less than half of the energy to make them than typical alternatives, and likewise, they generate less than half the greenhouse gases of typical alternatives. Increased recycling is the answer. Sharon Kneiss, vice president of ACC’s Products Division said, “We are seeing a trend for municipalities nationwide to creatively employ existing resources to reduce waste, improve sustainability and achieve broader environmental goals. Across the nation, from California to New York City, progressive leaders are choosing plastic bag recycling because it makes sense for the environment and the economy.”
A release from Mayor Nickels indicated that Seattle Public Utilities (SPU) estimates 360 million disposable bags are used in the city every year, most made of plastic. Almost 75 percent of these come from the city’s 575 grocery, drug and convenience stores (out of a total 3,600 retail and restaurant businesses). While Seattleites have a good record of recycling paper bags, most plastic ends up in landfills. But paper bags will also be subject to the fee because, taking into account the environmental costs of logging and shipping, they are actually worse for the planet.
According to the proposal the city will set aside $1 million to distribute these bags and promote their advantages. Retailers will keep 5-cents of every bag to cover administrative costs. Retailers grossing less than $1 million annually will keep the entire 20-cent fee. Charging a fee for disposable bags will cut the number of throw-away bags coming out of grocery, drug and convenience stores by an estimated 70 percent or more according to the city’s analysis and will reduce the use of disposable shopping bags in Seattle overall by more than 50 percent. By preventing the manufacture of 184 million bags a year, Seattle will cut greenhouse gas production by nearly 112,000 tons over a 30-year period. A similar fee in Ireland achieved a 90 percent reduction in use from 325 to 23 bags per person per year.
ACC points out, however, that the tax on plastic bags in Ireland reduced plastic grocery bag use by 90% but increased overall plastic use by 400% as residents purchased new plastic bags instead of reusing grocery bags. They also said that retailers in Ireland report the loss of 450 wire baskets and carts per month by retailer on average -- a loss of about 24 million euros (about $39 million USD) annually. And, the tax has led to a significant increase in ‘push outs’ (shoppers filling their carts and walking straight out without paying) at a cost to retailers of 10 million euros ($17.2 million USD) annually.
To smooth the transition in Seattle, the proposal calls for establishing business advisory committees representing the retail and restaurant sectors. In addition, the city will help food service businesses work together for lower prices on new compostable products. Seattle expects to collect about $10 million annually from the green fee. About $2 million will be spent to promote the switch to reusable bags, including the distribution of free bags to low income families and those on fixed incomes. The rest of the money, about $8 million, will go toward waste prevention and recycling programs and environmental education programs.
A study recently conducted by Herrera Environmental for Seattle indicates that all disposable paper and plastic bags have significant energy, climate change, wastewater, litter and water quality impacts on the region’s environment -- although plastic is especially damaging to marine animals and shore birds. The Herrera study examined the life cycle environmental impact of disposable shopping bags and found the overall impact of paper bags was four times worse than that of an equal number of plastic bags (for all categories weighted equally), and worse in every category except litter and marine litter. The Mayor indicated that banning plastic bags but not paper would push stores and shoppers to use more paper bags, resulting in significantly greater greenhouse gas generation.
Access a release from the Seattle Mayor with links to additional information including a fact sheet, report executive summary and a FAQ document (click here). Access a release from ACC with links to more information on plastics and to the ACC plastic bag recycling website (click here). [*Solid, *Energy, *Climate]
Mayor Nickels said, “The answer to the question ‘paper or plastic’ is neither -- both harm the environment. Every piece of plastic ever made is still with us. The best way to handle a ton of waste is not to create it. This proposal is all about forming new habits. Taking a reusable bag to grocery stores and pharmacies is a simple thing that has an enormous impact.”
On April 4, the American Chemistry Council (ACC) said the Seattle proposals would will have negative consequences on the local environment, the economy and the school system. ACC said plastic recycling is a superior alternative for the environment and for the community’s economic health. ACC encouraged the City of Seattle to join a growing number of cities and states by supporting plastic recycling programs for bags and food containers.
ACC indicated in a release that plastic bags are a good choice for the environment. It takes less than half of the energy to make them than typical alternatives, and likewise, they generate less than half the greenhouse gases of typical alternatives. Increased recycling is the answer. Sharon Kneiss, vice president of ACC’s Products Division said, “We are seeing a trend for municipalities nationwide to creatively employ existing resources to reduce waste, improve sustainability and achieve broader environmental goals. Across the nation, from California to New York City, progressive leaders are choosing plastic bag recycling because it makes sense for the environment and the economy.”
A release from Mayor Nickels indicated that Seattle Public Utilities (SPU) estimates 360 million disposable bags are used in the city every year, most made of plastic. Almost 75 percent of these come from the city’s 575 grocery, drug and convenience stores (out of a total 3,600 retail and restaurant businesses). While Seattleites have a good record of recycling paper bags, most plastic ends up in landfills. But paper bags will also be subject to the fee because, taking into account the environmental costs of logging and shipping, they are actually worse for the planet.
According to the proposal the city will set aside $1 million to distribute these bags and promote their advantages. Retailers will keep 5-cents of every bag to cover administrative costs. Retailers grossing less than $1 million annually will keep the entire 20-cent fee. Charging a fee for disposable bags will cut the number of throw-away bags coming out of grocery, drug and convenience stores by an estimated 70 percent or more according to the city’s analysis and will reduce the use of disposable shopping bags in Seattle overall by more than 50 percent. By preventing the manufacture of 184 million bags a year, Seattle will cut greenhouse gas production by nearly 112,000 tons over a 30-year period. A similar fee in Ireland achieved a 90 percent reduction in use from 325 to 23 bags per person per year.
ACC points out, however, that the tax on plastic bags in Ireland reduced plastic grocery bag use by 90% but increased overall plastic use by 400% as residents purchased new plastic bags instead of reusing grocery bags. They also said that retailers in Ireland report the loss of 450 wire baskets and carts per month by retailer on average -- a loss of about 24 million euros (about $39 million USD) annually. And, the tax has led to a significant increase in ‘push outs’ (shoppers filling their carts and walking straight out without paying) at a cost to retailers of 10 million euros ($17.2 million USD) annually.
To smooth the transition in Seattle, the proposal calls for establishing business advisory committees representing the retail and restaurant sectors. In addition, the city will help food service businesses work together for lower prices on new compostable products. Seattle expects to collect about $10 million annually from the green fee. About $2 million will be spent to promote the switch to reusable bags, including the distribution of free bags to low income families and those on fixed incomes. The rest of the money, about $8 million, will go toward waste prevention and recycling programs and environmental education programs.
A study recently conducted by Herrera Environmental for Seattle indicates that all disposable paper and plastic bags have significant energy, climate change, wastewater, litter and water quality impacts on the region’s environment -- although plastic is especially damaging to marine animals and shore birds. The Herrera study examined the life cycle environmental impact of disposable shopping bags and found the overall impact of paper bags was four times worse than that of an equal number of plastic bags (for all categories weighted equally), and worse in every category except litter and marine litter. The Mayor indicated that banning plastic bags but not paper would push stores and shoppers to use more paper bags, resulting in significantly greater greenhouse gas generation.
Access a release from the Seattle Mayor with links to additional information including a fact sheet, report executive summary and a FAQ document (click here). Access a release from ACC with links to more information on plastics and to the ACC plastic bag recycling website (click here). [*Solid, *Energy, *Climate]
Monday, November 19, 2007
Markey Introduces Bottle Deposit Recycling Climate Protection Act
Nov 15: Representative. Edward Markey (D-MA), Chairman of the House Select Committee on Energy Independence and Global Warming, introduced the Bottle Recycling Climate Protection Act (H.R. 4238), which would decrease global warming pollution and cut down on energy use by encouraging large-scale recycling of cans, bottles and other beverage containers throughout America. The introduction of the bill coincided with America Recycles Day. The bill has 11 cosponsors. A December 2006 GAO report cited a nationwide deposit law as an effective policy option to increase municipal recycling [See WIMS 1/29/07].
The bill would establish a national 5 cent deposit on beverage containers, including plastic water bottles and other containers that have become more prevalent in recent years after many state programs were established. According to Markey, the bottles and other containers pour into landfills and use energy to produce, thereby creating global warming pollution and other environmental issues. In 2006, more than half of the 200 billion beverage containers that could have been recycled in the United States were incinerated or littered.
Markey said, “Congress can send the nation a global warming message in a bottle. We can still quench our thirst while reducing our thirst for energy. And we can have carbon dioxide in our fizzy drinks, while cutting down on heat-trapping carbon dioxide in the atmosphere.” Currently, 11 states have deposit programs that encourage consumers to return containers to claim the refund on the deposit. In the states that have passed bottle bills, recycling rates are twice that of states without deposit laws. The new National Bottle Bill recognizes the leadership of the states on this issue, and exempts states that have high recycling rates or existing state legislation from the national standard for 3 years, or as long as they maintain high recycling rates.
Plastic water and juice bottles have become increasingly prevalent since many state bottle bills were initially adopted. Including plastic bottles in a national bottle bill would lead to significant savings in energy and oil consumption. One ton of recycled plastic saves 5,774 kWh (kilowatt hours) of electricity and 685 gallons of oil. Aluminum cans also account for an increasing amount of waste. 58 billion cans are thrown away every year in the United States, enough to fill the Empire State Building six times. If all these cans were recycled, it would cut the emissions of heat-trapping carbon pollution by nearly 6 million tons, or the equivalent of the pollution from more than one million cars. Cans made from recycled aluminum use 95 percent less energy than cans manufactured with new materials.
Markey said, “Recycling is an everyday action that we can all take to cut global warming emissions and be good environmental stewards. Our national goal should be to one day recycle every single bottle we use, and this bill will get us closer to that goal and that day.” The National Bottle Bill has already gained support from leading environmental and recycling organizations, including the Container Recycling Institute (CRI), the Natural Resources Defense Council, and the Public Interest Research Group.
The CRI's has issued a report and presentation on the problems with increasing numbers of plastic bottle from bottled water. The report, Water, Water Everywhere:The Growth of Non-Carbonated Beverages in the U.S., chronicles the dramatic increase in sales of bottled water and other non-carbonated beverages in recent years and looks at the projected growth of the non-carbonated market. A separate presentation addresses the rapid growth of bottled water and other non-carbonated beverages and how state legislatures are considering updating deposit laws to include these beverages that did not exist 25 years ago.
Access a release from Representative Markey (click here). Access legislative details for H.R. 4238 (click here). Access the CRI website for links to their reports and information (click here). [*Solid, *P2]
The bill would establish a national 5 cent deposit on beverage containers, including plastic water bottles and other containers that have become more prevalent in recent years after many state programs were established. According to Markey, the bottles and other containers pour into landfills and use energy to produce, thereby creating global warming pollution and other environmental issues. In 2006, more than half of the 200 billion beverage containers that could have been recycled in the United States were incinerated or littered.
Markey said, “Congress can send the nation a global warming message in a bottle. We can still quench our thirst while reducing our thirst for energy. And we can have carbon dioxide in our fizzy drinks, while cutting down on heat-trapping carbon dioxide in the atmosphere.” Currently, 11 states have deposit programs that encourage consumers to return containers to claim the refund on the deposit. In the states that have passed bottle bills, recycling rates are twice that of states without deposit laws. The new National Bottle Bill recognizes the leadership of the states on this issue, and exempts states that have high recycling rates or existing state legislation from the national standard for 3 years, or as long as they maintain high recycling rates.
Plastic water and juice bottles have become increasingly prevalent since many state bottle bills were initially adopted. Including plastic bottles in a national bottle bill would lead to significant savings in energy and oil consumption. One ton of recycled plastic saves 5,774 kWh (kilowatt hours) of electricity and 685 gallons of oil. Aluminum cans also account for an increasing amount of waste. 58 billion cans are thrown away every year in the United States, enough to fill the Empire State Building six times. If all these cans were recycled, it would cut the emissions of heat-trapping carbon pollution by nearly 6 million tons, or the equivalent of the pollution from more than one million cars. Cans made from recycled aluminum use 95 percent less energy than cans manufactured with new materials.
Markey said, “Recycling is an everyday action that we can all take to cut global warming emissions and be good environmental stewards. Our national goal should be to one day recycle every single bottle we use, and this bill will get us closer to that goal and that day.” The National Bottle Bill has already gained support from leading environmental and recycling organizations, including the Container Recycling Institute (CRI), the Natural Resources Defense Council, and the Public Interest Research Group.
The CRI's has issued a report and presentation on the problems with increasing numbers of plastic bottle from bottled water. The report, Water, Water Everywhere:The Growth of Non-Carbonated Beverages in the U.S., chronicles the dramatic increase in sales of bottled water and other non-carbonated beverages in recent years and looks at the projected growth of the non-carbonated market. A separate presentation addresses the rapid growth of bottled water and other non-carbonated beverages and how state legislatures are considering updating deposit laws to include these beverages that did not exist 25 years ago.
Access a release from Representative Markey (click here). Access legislative details for H.R. 4238 (click here). Access the CRI website for links to their reports and information (click here). [*Solid, *P2]
Tuesday, July 17, 2007
Canadians Recycling More; But, Less Than U.S.
Jul 13: Access to recycling programs, and their use, have improved substantially in Canada since the mid-1990s, and Canadian households are recycling more waste than ever before, according to a report in the new online inaugural edition of EnviroStats, Statistics Canada's new quarterly bulletin on environmental and sustainable development statistics. According to the report, the vast majority of Canadian households that had access to recycling programs made use of them in 2006, regardless of household income, the occupants' education levels, or the type of dwelling. Among households that had access to recycling programs, about 97% of those in single-detached homes recycled waste, as did 95% of those in low-rise apartments.
In 2004, households produced 13.4 million tonnes of waste, according to the Waste Management Industry Survey. Of this amount, nearly 3.6 million tonnes went to recycling, a 65% increase from 2000. During this four-year period, the proportion of household waste that was diverted to recycling increased from 19% to 27%. In 2004, the average Canadian recycled 112 kilograms of material, compared with 71 kilograms in 2000. Recycling rates in 2004 ranged from a high of 157 kilograms per capita in Nova Scotia to a low of 54 kilograms in Saskatchewan. By comparison, an October 23, 2006, report from U.S. EPA, indicated Americans are recycling more and throwing away less and recycled 32 percent of its waste in 2005 -- a 2 percent increase from 2004 and a huge jump from 16 percent in 1990.
Access the Canadian summary analysis and link to the EnviroStats article (click here). Access complete details on the U.S. EPA report on an eNewsUSA Blog post (click here). [*Solid, *P2]
In 2004, households produced 13.4 million tonnes of waste, according to the Waste Management Industry Survey. Of this amount, nearly 3.6 million tonnes went to recycling, a 65% increase from 2000. During this four-year period, the proportion of household waste that was diverted to recycling increased from 19% to 27%. In 2004, the average Canadian recycled 112 kilograms of material, compared with 71 kilograms in 2000. Recycling rates in 2004 ranged from a high of 157 kilograms per capita in Nova Scotia to a low of 54 kilograms in Saskatchewan. By comparison, an October 23, 2006, report from U.S. EPA, indicated Americans are recycling more and throwing away less and recycled 32 percent of its waste in 2005 -- a 2 percent increase from 2004 and a huge jump from 16 percent in 1990.
Access the Canadian summary analysis and link to the EnviroStats article (click here). Access complete details on the U.S. EPA report on an eNewsUSA Blog post (click here). [*Solid, *P2]
Wednesday, May 02, 2007
Supreme Court Defines Flow Control Public Sector Exception
Apr 30: The U.S. Supreme court has issued its opinion in the solid waste "flow control" case of United Haulers Assoc., Inc. v. Oneida-Herkimer Solid Waste Management Authority (Case No. 05-1345) [See WIMS 1/9/07]. The opinion, which must be characterized as a loss for the private solid waste management sector, is sure to precipitate new rounds of litigation on the highly controversial issue of local regulations which direct or control the "flow" of municipal solid waste to specifically designated facilities. The High Court has now ruled that there is a "public" versus "private" distinction when it comes to directing solid waste to designated facilities.
The Justices were divided in their opinions along non-traditional lines. Justice Roberts delivered the opinion of the Court, except as to Part II–D. Justices Souter, Ginsburg and Breyer joined that opinion in full. Justice Scalia filed an opinion concurring as to Parts I and II–A through II–C. Justice Thomas filed an opinion concurring in the judgment. Judge Alito filed a dissenting opinion, in which Justices Stevens and Kennedy joined.
For over a decade the matter local flow control ordinances has been somewhat legally settled with the 1994 U.S. Supreme Court decision issued in C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 386 (1994) which deemed local flow control regulations invalid. However, over the last several years the concept of a possible "Public Sector Exception" to the Carbone ruling has been evolving in the lower courts. In the United Haulers case which was appealed from the U.S. Court of Appeals, Second Circuit, February 16, 2006, decision (Case No. 05-2024) the Appeals Court said, "In our view, then, the local benefits of the flow control measures substantially outweigh whatever modest differential burden they may place on interstate commerce." Contrarily, the U.S. Court of Appeals, Sixth Circuit, in the case of National Solid Wastes v. Daviess County KY (Case No. 04-6498), ruled in a similar case saying that a proposed county ordinance was unconstitutional, and said, it refused to adopt what it termed, "the public-private distinction with respect to the dormant commerce clause;" as provided in the United Haulers case.
In the opening paragraph of its opinion the High Court focuses on the public versus private distinction saying, “'Flow control' ordinances require trash haulers to deliver solid waste to a particular waste processing facility. In C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383 (1994), this Court struck down under the Commerce Clause a flow control ordinance that forced haulers to deliver waste to a particular private [emphasis contained in original] processing facility. In this case, we face flow control ordinances quite similar to the one invalidated in Carbone. The only salient difference is that the laws at issue here require haulers to bring waste to facilities owned and operated by a state-created public benefit corporation. We find this difference constitutionally significant."
The High Court continues to define the new exception saying, "Disposing of trash has been a traditional government activity for years, and laws that favor the government in such areas -- but treat every private business, whether in-state or out-of-state, exactly the same -- do not discriminate against interstate commerce for purposes of the Commerce Clause. Applying the Commerce Clause test reserved for regulations that do not discriminate against interstate commerce, we uphold these ordinances because any incidental burden they may have on interstate commerce does not outweigh the benefits they confer on the citizens of Oneida and Herkimer Counties."
Further explaining its decision, the Supreme Court says that in the Carbone decision the majority of Justices did not comment on the "public-private distinction." However, they say, "The parties in this case draw opposite inferences from the majority’s silence. The haulers say it proves that the majority agreed with the dissent’s characterization of the facility, but thought there was no difference under the dormant Commerce Clause between laws favoring private entities and those favoring public ones. The Counties disagree, arguing that the majority studiously avoided the issue because the facility in Carbone was private, and therefore the question whether public [emphasis included in original] facilities may be favored was not properly before the Court.
"We believe the latter interpretation of Carbone is correct. As the Second Circuit explained, “in Carbone the Justices were divided over the fact of whether the favored facility was public or private, rather than on the import of that distinction.” 261 F. 3d, at 259 (emphasis in original). The Carbone dissent offered a number of reasons why public entities should be treated differently from private ones under the dormant Commerce Clause. See 511 U. S., at 419–422 [opinion of Justice Souter]. It is hard to suppose that the Carbone majority definitively rejected these arguments without explaining why. The Carbone majority viewed Clarkstown’s flow control ordinance as 'just one more instance of local processing requirements that we long have held invalid.'” [emphasis included in original]
The Supreme Court said directly, "The flow control ordinances in this case benefit a clearly public facility, while treating all private companies exactly the same. Because the question is now squarely presented on the facts of the case before us, we decide that such flow control ordinances do not discriminate against interstate commerce for purposes of the dormant Commerce Clause... Unlike private enterprise, government is vested with the responsibility of protecting the health, safety, and welfare of its citizens... These important responsibilities set state and local government apart from a typical private business...
"Laws favoring local government, by contrast, may be directed toward any number of legitimate goals unrelated to protectionism. Here the flow control ordinances enable the Counties to pursue particular policies with respect to the handling and treatment of waste generated in the Counties, while allocating the costs of those policies on citizens and businesses according to the volume of waste they generate.
"The contrary approach of treating public and private entities the same under the dormant Commerce Clause would lead to unprecedented and unbounded interference by the courts with state and local government. The dormant Commerce Clause is not a roving license for federal courts to decide what activities are appropriate for state and local government to undertake, and what activities must be the province of private market competition..."
Access the complete Supreme Court opinion (click here). Access the Supreme Court docket in the case (click here). Access the Second Circuit opinion (click here). Access the Sixth Circuit opinion (click here). Access various parties' briefs in the case posted on the American Bar Association website (click here). Access the WIMS-EcoBizPort Solid Waste issue website for links to additional legal issue resources (click here). [*Solid]
The Justices were divided in their opinions along non-traditional lines. Justice Roberts delivered the opinion of the Court, except as to Part II–D. Justices Souter, Ginsburg and Breyer joined that opinion in full. Justice Scalia filed an opinion concurring as to Parts I and II–A through II–C. Justice Thomas filed an opinion concurring in the judgment. Judge Alito filed a dissenting opinion, in which Justices Stevens and Kennedy joined.
For over a decade the matter local flow control ordinances has been somewhat legally settled with the 1994 U.S. Supreme Court decision issued in C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 386 (1994) which deemed local flow control regulations invalid. However, over the last several years the concept of a possible "Public Sector Exception" to the Carbone ruling has been evolving in the lower courts. In the United Haulers case which was appealed from the U.S. Court of Appeals, Second Circuit, February 16, 2006, decision (Case No. 05-2024) the Appeals Court said, "In our view, then, the local benefits of the flow control measures substantially outweigh whatever modest differential burden they may place on interstate commerce." Contrarily, the U.S. Court of Appeals, Sixth Circuit, in the case of National Solid Wastes v. Daviess County KY (Case No. 04-6498), ruled in a similar case saying that a proposed county ordinance was unconstitutional, and said, it refused to adopt what it termed, "the public-private distinction with respect to the dormant commerce clause;" as provided in the United Haulers case.
In the opening paragraph of its opinion the High Court focuses on the public versus private distinction saying, “'Flow control' ordinances require trash haulers to deliver solid waste to a particular waste processing facility. In C & A Carbone, Inc. v. Clarkstown, 511 U. S. 383 (1994), this Court struck down under the Commerce Clause a flow control ordinance that forced haulers to deliver waste to a particular private [emphasis contained in original] processing facility. In this case, we face flow control ordinances quite similar to the one invalidated in Carbone. The only salient difference is that the laws at issue here require haulers to bring waste to facilities owned and operated by a state-created public benefit corporation. We find this difference constitutionally significant."
The High Court continues to define the new exception saying, "Disposing of trash has been a traditional government activity for years, and laws that favor the government in such areas -- but treat every private business, whether in-state or out-of-state, exactly the same -- do not discriminate against interstate commerce for purposes of the Commerce Clause. Applying the Commerce Clause test reserved for regulations that do not discriminate against interstate commerce, we uphold these ordinances because any incidental burden they may have on interstate commerce does not outweigh the benefits they confer on the citizens of Oneida and Herkimer Counties."
Further explaining its decision, the Supreme Court says that in the Carbone decision the majority of Justices did not comment on the "public-private distinction." However, they say, "The parties in this case draw opposite inferences from the majority’s silence. The haulers say it proves that the majority agreed with the dissent’s characterization of the facility, but thought there was no difference under the dormant Commerce Clause between laws favoring private entities and those favoring public ones. The Counties disagree, arguing that the majority studiously avoided the issue because the facility in Carbone was private, and therefore the question whether public [emphasis included in original] facilities may be favored was not properly before the Court.
"We believe the latter interpretation of Carbone is correct. As the Second Circuit explained, “in Carbone the Justices were divided over the fact of whether the favored facility was public or private, rather than on the import of that distinction.” 261 F. 3d, at 259 (emphasis in original). The Carbone dissent offered a number of reasons why public entities should be treated differently from private ones under the dormant Commerce Clause. See 511 U. S., at 419–422 [opinion of Justice Souter]. It is hard to suppose that the Carbone majority definitively rejected these arguments without explaining why. The Carbone majority viewed Clarkstown’s flow control ordinance as 'just one more instance of local processing requirements that we long have held invalid.'” [emphasis included in original]
The Supreme Court said directly, "The flow control ordinances in this case benefit a clearly public facility, while treating all private companies exactly the same. Because the question is now squarely presented on the facts of the case before us, we decide that such flow control ordinances do not discriminate against interstate commerce for purposes of the dormant Commerce Clause... Unlike private enterprise, government is vested with the responsibility of protecting the health, safety, and welfare of its citizens... These important responsibilities set state and local government apart from a typical private business...
"Laws favoring local government, by contrast, may be directed toward any number of legitimate goals unrelated to protectionism. Here the flow control ordinances enable the Counties to pursue particular policies with respect to the handling and treatment of waste generated in the Counties, while allocating the costs of those policies on citizens and businesses according to the volume of waste they generate.
"The contrary approach of treating public and private entities the same under the dormant Commerce Clause would lead to unprecedented and unbounded interference by the courts with state and local government. The dormant Commerce Clause is not a roving license for federal courts to decide what activities are appropriate for state and local government to undertake, and what activities must be the province of private market competition..."
Access the complete Supreme Court opinion (click here). Access the Supreme Court docket in the case (click here). Access the Second Circuit opinion (click here). Access the Sixth Circuit opinion (click here). Access various parties' briefs in the case posted on the American Bar Association website (click here). Access the WIMS-EcoBizPort Solid Waste issue website for links to additional legal issue resources (click here). [*Solid]
Monday, January 29, 2007
GAO Says Municipal Recycling Efforts Could Be Increased
Jan 29: The Government Accountability Office (GAO) has just released a report entitled, Recycling: Additional Efforts Could Increase Municipal Recycling (GAO-07-37, December 29, 2006). The report was requested last year by former Senator James Jeffords (I-VT) and several other members of the Senate Environment and Public Works Committee. In 2005, the United States generated about 246 million tons of municipal solid waste, or over 1,600 pounds per person, according to the most current Environmental Protection Agency (EPA) estimates. EPA reported that 79 million tons of this waste were recycled, while the remaining 166.7 million tons were combusted, went to landfills, or were otherwise disposed of. EPA currently has a goal of recycling 35 percent of national municipal solid waste by 2008.
According to the report, although recycling can generate environmental and economic benefits, the national recycling rate has increased only slightly since 2000 (i.e. from 29% to 32%), according to U.S. EPA [See WIMS 10/23/06]. While local governments have the primary role in operating recycling programs, EPA and the Department of Commerce have some legal responsibilities for encouraging recycling. GAO was asked to (1) identify key practices cities are using to increase recycling, (2) describe what EPA and Commerce are doing to encourage recycling, and (3) identify Federal policy options that could help increase recycling. GAO interviewed recycling coordinators in 11 large cities about key practices and 13 additional recycling stakeholders about policy options. GAO selected both groups based on geographic representation and recycling expertise, among other factors.
GAO indicates that recycling coordinators interviewed in selected cities across the country identified several key practices they are using to increase recycling in their cities. The three practices they cited most frequently were (1) making recycling convenient and easy for their residents, (2) offering financial incentives for recycling, and (3) conducting public education and outreach. In addition, both recycling coordinators and the recycling literature identified other ways to increase recycling, such as targeting a wide range of materials for recycling and extending recycling programs to the commercial sector.
GAO found that one of EPA’s principal national recycling programs, WasteWise, creates voluntary partnerships with groups, such as universities, states, and businesses, to help them increase their recycling. EPA also provides competitive grants to support projects designed to increase recycling. However, the impact of EPA’s programs is unknown because the programs lack performance measures and comprehensive data on program performance. GAO also found that although Commerce is required under the Resource Conservation and Recovery Act (RCRA) to stimulate the development of markets for recycled materials, the agency is not currently taking any actions to do so in the United States.
GAO reported that the recycling stakeholders they interviewed identified various Federal policy options that they believe could help municipalities increase their recycling rates. The three Federal policy options cited most frequently were to (1) establish a nationwide campaign to educate the public about recycling; (2) enact a national “bottle bill” in which beverage containers may be returned for money; and (3) require manufacturers to establish systems that consumers can use to recycle their products. Other identified policy options included: facilitating the sharing of recycling best practices among municipalities; expanding EPA research on the economic and environmental benefits of recycling; and providing additional grant money for recycling projects.
In its investigation, GAO interviewed recycling coordinators from Atlanta, Georgia; Austin, Texas; Chicago, Illinois; Denver, Colorado; Jacksonville, Florida; Minneapolis, Minnesota; New York, New York; Philadelphia, Pennsylvania; Portland, Oregon; San Francisco, California; and Seattle, Washington.
Access the complete 51-page report (click here). [*Solid]
According to the report, although recycling can generate environmental and economic benefits, the national recycling rate has increased only slightly since 2000 (i.e. from 29% to 32%), according to U.S. EPA [See WIMS 10/23/06]. While local governments have the primary role in operating recycling programs, EPA and the Department of Commerce have some legal responsibilities for encouraging recycling. GAO was asked to (1) identify key practices cities are using to increase recycling, (2) describe what EPA and Commerce are doing to encourage recycling, and (3) identify Federal policy options that could help increase recycling. GAO interviewed recycling coordinators in 11 large cities about key practices and 13 additional recycling stakeholders about policy options. GAO selected both groups based on geographic representation and recycling expertise, among other factors.
GAO indicates that recycling coordinators interviewed in selected cities across the country identified several key practices they are using to increase recycling in their cities. The three practices they cited most frequently were (1) making recycling convenient and easy for their residents, (2) offering financial incentives for recycling, and (3) conducting public education and outreach. In addition, both recycling coordinators and the recycling literature identified other ways to increase recycling, such as targeting a wide range of materials for recycling and extending recycling programs to the commercial sector.
GAO found that one of EPA’s principal national recycling programs, WasteWise, creates voluntary partnerships with groups, such as universities, states, and businesses, to help them increase their recycling. EPA also provides competitive grants to support projects designed to increase recycling. However, the impact of EPA’s programs is unknown because the programs lack performance measures and comprehensive data on program performance. GAO also found that although Commerce is required under the Resource Conservation and Recovery Act (RCRA) to stimulate the development of markets for recycled materials, the agency is not currently taking any actions to do so in the United States.
GAO reported that the recycling stakeholders they interviewed identified various Federal policy options that they believe could help municipalities increase their recycling rates. The three Federal policy options cited most frequently were to (1) establish a nationwide campaign to educate the public about recycling; (2) enact a national “bottle bill” in which beverage containers may be returned for money; and (3) require manufacturers to establish systems that consumers can use to recycle their products. Other identified policy options included: facilitating the sharing of recycling best practices among municipalities; expanding EPA research on the economic and environmental benefits of recycling; and providing additional grant money for recycling projects.
In its investigation, GAO interviewed recycling coordinators from Atlanta, Georgia; Austin, Texas; Chicago, Illinois; Denver, Colorado; Jacksonville, Florida; Minneapolis, Minnesota; New York, New York; Philadelphia, Pennsylvania; Portland, Oregon; San Francisco, California; and Seattle, Washington.
Access the complete 51-page report (click here). [*Solid]
Tuesday, January 09, 2007
Supreme Court Oral Argument In Solid Waste Flow Control Case
Jan 8: The U.S. Supreme Court heard oral arguments in the case of United Haulers Assoc., Inc. v. Oneida-Herkimer Solid Waste Management Authority (Case No. 05-1345). The case is being appealed from the U.S. Court of Appeals, Second Circuit, February 16, 2006, decision (Case No. 05-2024) which upheld the Northern District of New York decision [See WIMS 3/1/06]. The district court found that the municipal solid waste flow control ordinances enacted and implemented by the Authority did not impose a "differential burden on interstate commerce."
The Second Circuit said in its decision, "even if we were to recognize that the ordinances burden interstate commerce, we would find that the burden imposed is not clearly excessive in relation to the local benefits conferred by the ordinances... We therefore decline to resolve the former question," and affirmed the district court decision. The Second Circuit said further, "In our view, then, the local benefits of the flow control measures substantially outweigh whatever modest differential burden they may place on interstate commerce." The Second Circuit decision raises a rationale for local flow control regulations, which have basically been deemed invalid since the U.S. Supreme Court issued its definitive ruling in C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 386 (1994) [See WIMS 11/14/06].
The National Association of Manufacturers (NAM), National Solid Wastes Management Association (NSWMA) and the American Trucking Associations (ATA) filed an amicus brief urging the U.S. Supreme Court to overturn the Second Circuit's "controversial decision" which they say could lead to a resumption of local solid waste disposal monopolies – reducing competition and raising prices for consumers [See WIMS 11/17/06].
Adding to the interest in the case the U.S. Court of Appeals, Sixth Circuit, in the case of National Solid Wastes v. Daviess County KY (Case No. 04-6498), upheld a district court ruling in a similar case saying that a proposed Daviess County Ordinance was unconstitutional, and enjoined the County from enforcing it [See WIMS 1/25/06]. In that case the Sixth Circuit said, it refused to adopt what it termed, "the public-private distinction with respect to the dormant commerce clause;" as provided in the Second Circuit Court of Appeals United Haulers case.
The Supreme Court oral argument included appearances by Evan Tager representing the waste hauling Petitioners; Michael Cahill, representing the Respondent Authority; and Caitlin Halligan, Solicitor General, New York, N.Y.; on behalf of New York, as amicus curiae, supporting Respondents. After arguments from each, Tager was allowed a rebuttal. Tager argued that, "The barriers to interstate commerce imposed by the flow control ordinances in this case are even more severe than those resulting from the ordinance this Court struck down in Carbone."
The Justices appeared to be carving out an exception regarding public vs. private operations. Chief Justice Roberts asked the question, "What happens in a lot of municipalities of course is that they decide, well, we're going to run the waste treatment facility and we're going to tax the people in the municipality to support it and the service is going to be free. Now, is that a violation of the Commerce Clause?" Justice Ginsburg said, "I'm sorry. At least as I read the Carbone opinion, it didn't deal with the public-private distinction." Justice Breyer said, "Well, there is still at least the obvious distinction, that one of the main purposes of the dormant Commerce Clause is to prevent protectionism... But now where the municipality is running it itself, no one is favored." Justice Souter said to Tager, "It sounds to me as though, if we accept your argument that, going back to Justice Breyer's first question, every municipal utility in the United States is going to fall."
Respondent attorney Cahill said, "No decision of this Court has held that public service is comparable to private enterprise for purposes of dormant Commerce Clause analysis. Here the only entity that benefits from these laws is the government itself... I don't think that we're engaging in commercial activity in this particular case. If we were to offer our services to citizens to whom we do not have a governmental responsibility, then I think we're entering into the realm of competition with the private sector.
The New York Solicitor General Halligan argued, "As you suggested, Justice Breyer, the theory that petitioners would have the Court adopt here is in fact a novel one. What they are suggesting is that there is discrimination sufficient to trigger near fatal scrutiny every time the government takes over, to the exclusion of all private actors both in state and out of state, a government service, that that is sufficient to trigger strict scrutiny. That is completely inconsistent with the way that this Court has defined what constitutes discrimination for purposes of the dormant Commerce Clause."
Access the complete oral argument transcript (click here). Access the Supreme Court docket in the case (click here). Access a more detailed account of the long history in this case from the Medill School of Journalism (click here). Access the Second Circuit opinion (click here). Access the Sixth Circuit opinion (click here). [*Solid]
The Second Circuit said in its decision, "even if we were to recognize that the ordinances burden interstate commerce, we would find that the burden imposed is not clearly excessive in relation to the local benefits conferred by the ordinances... We therefore decline to resolve the former question," and affirmed the district court decision. The Second Circuit said further, "In our view, then, the local benefits of the flow control measures substantially outweigh whatever modest differential burden they may place on interstate commerce." The Second Circuit decision raises a rationale for local flow control regulations, which have basically been deemed invalid since the U.S. Supreme Court issued its definitive ruling in C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 386 (1994) [See WIMS 11/14/06].
The National Association of Manufacturers (NAM), National Solid Wastes Management Association (NSWMA) and the American Trucking Associations (ATA) filed an amicus brief urging the U.S. Supreme Court to overturn the Second Circuit's "controversial decision" which they say could lead to a resumption of local solid waste disposal monopolies – reducing competition and raising prices for consumers [See WIMS 11/17/06].
Adding to the interest in the case the U.S. Court of Appeals, Sixth Circuit, in the case of National Solid Wastes v. Daviess County KY (Case No. 04-6498), upheld a district court ruling in a similar case saying that a proposed Daviess County Ordinance was unconstitutional, and enjoined the County from enforcing it [See WIMS 1/25/06]. In that case the Sixth Circuit said, it refused to adopt what it termed, "the public-private distinction with respect to the dormant commerce clause;" as provided in the Second Circuit Court of Appeals United Haulers case.
The Supreme Court oral argument included appearances by Evan Tager representing the waste hauling Petitioners; Michael Cahill, representing the Respondent Authority; and Caitlin Halligan, Solicitor General, New York, N.Y.; on behalf of New York, as amicus curiae, supporting Respondents. After arguments from each, Tager was allowed a rebuttal. Tager argued that, "The barriers to interstate commerce imposed by the flow control ordinances in this case are even more severe than those resulting from the ordinance this Court struck down in Carbone."
The Justices appeared to be carving out an exception regarding public vs. private operations. Chief Justice Roberts asked the question, "What happens in a lot of municipalities of course is that they decide, well, we're going to run the waste treatment facility and we're going to tax the people in the municipality to support it and the service is going to be free. Now, is that a violation of the Commerce Clause?" Justice Ginsburg said, "I'm sorry. At least as I read the Carbone opinion, it didn't deal with the public-private distinction." Justice Breyer said, "Well, there is still at least the obvious distinction, that one of the main purposes of the dormant Commerce Clause is to prevent protectionism... But now where the municipality is running it itself, no one is favored." Justice Souter said to Tager, "It sounds to me as though, if we accept your argument that, going back to Justice Breyer's first question, every municipal utility in the United States is going to fall."
Respondent attorney Cahill said, "No decision of this Court has held that public service is comparable to private enterprise for purposes of dormant Commerce Clause analysis. Here the only entity that benefits from these laws is the government itself... I don't think that we're engaging in commercial activity in this particular case. If we were to offer our services to citizens to whom we do not have a governmental responsibility, then I think we're entering into the realm of competition with the private sector.
The New York Solicitor General Halligan argued, "As you suggested, Justice Breyer, the theory that petitioners would have the Court adopt here is in fact a novel one. What they are suggesting is that there is discrimination sufficient to trigger near fatal scrutiny every time the government takes over, to the exclusion of all private actors both in state and out of state, a government service, that that is sufficient to trigger strict scrutiny. That is completely inconsistent with the way that this Court has defined what constitutes discrimination for purposes of the dormant Commerce Clause."
Access the complete oral argument transcript (click here). Access the Supreme Court docket in the case (click here). Access a more detailed account of the long history in this case from the Medill School of Journalism (click here). Access the Second Circuit opinion (click here). Access the Sixth Circuit opinion (click here). [*Solid]
Thursday, December 07, 2006
Getting A Handle On The Scrap Tire Problem
Dec 5: A detailed report by the Rubber Manufacturers Association (RMA) says that nearly 87 percent of disposed tires each year are put to a new use. RMA’s report -- Scrap Tire Markets In The United States -- which is based upon a comprehensive survey of state scrap tire and solid waste officials and industry participants, indicates that 259 million of 299 million scrap tires generated in 2005 went to an end use market. By comparison, in 1990, only 11 percent of scrap tires was consumed by a market. State cleanup laws and growing markets are helping to alleviate serious environmental issue. Additionally, the number of tires sitting in stockpiles has been reduced to 188 million -- down from 275 million in 2003; and more than 1 billion scrap tires were stockpiled in 1990. RMA, which represents tire manufacturers, ranked states by their overall performance in dealing with scrap tire issues and how states improved since the previous scrap tire report in 2003.
According to the report, South Carolina, North Carolina and Maine lead the nation in a performance ranking of dealing with scrap tires. Rankings are based on percent of tires going to end use markets, number of stockpiled tires, stockpiled tires per capita, number of tires land-disposed and the percent of the number of tires/per capita land-disposed in 2005. Texas, Alabama, Michigan and Ohio were tops in improving the scrap tire situation in 2005 as compared to 2003. Michael Blumenthal, RMA senior technical director said, “Tire manufacturers have been working hard for 16 years to promote environmentally and economically sound solutions to reduce scrap tire waste. Additionally, states’ scrap tire cleanup laws and regulations and market development efforts have substantially reduced the nation’s scrap tire piles.”
The largest market for scrap tires is tire-derived-fuel (TDF) -- especially as a supplemental fuel for cement kilns, electric utilities and pulp and paper mills. TDF accounted for some 155 million scrap tires in 2005; an increase of 20% since 2003. Other major uses are ground rubber and construction applications. Ground rubber use, e.g athletic and recreational surfaces, rubber-modified asphalt, carpet underlay, flooring material, dock bumpers and railroad crossing blocks; accounted for more than 30 million tires in 2005. Road and landfill construction, septic tank leach fields and other construction applications consumed nearly 50 million tires in 2005.
The report also indicates that since 1990, the number of scrap tires in stockpiles has been reduced by 81 percent. Of the remaining stockpiles, 85 percent are concentrated in 7 states: Alabama, Colorado, Connecticut, Michigan, New York, Pennsylvania and Texas.
Access a release from RMA (click here). Access the complete 93-page report (click here). Access RMA's Scrap Tire Management website for extensive information (click here). Access U.S. EPA's Scrap Tire Management website for additional information (click here). [*Solid]
According to the report, South Carolina, North Carolina and Maine lead the nation in a performance ranking of dealing with scrap tires. Rankings are based on percent of tires going to end use markets, number of stockpiled tires, stockpiled tires per capita, number of tires land-disposed and the percent of the number of tires/per capita land-disposed in 2005. Texas, Alabama, Michigan and Ohio were tops in improving the scrap tire situation in 2005 as compared to 2003. Michael Blumenthal, RMA senior technical director said, “Tire manufacturers have been working hard for 16 years to promote environmentally and economically sound solutions to reduce scrap tire waste. Additionally, states’ scrap tire cleanup laws and regulations and market development efforts have substantially reduced the nation’s scrap tire piles.”
The largest market for scrap tires is tire-derived-fuel (TDF) -- especially as a supplemental fuel for cement kilns, electric utilities and pulp and paper mills. TDF accounted for some 155 million scrap tires in 2005; an increase of 20% since 2003. Other major uses are ground rubber and construction applications. Ground rubber use, e.g athletic and recreational surfaces, rubber-modified asphalt, carpet underlay, flooring material, dock bumpers and railroad crossing blocks; accounted for more than 30 million tires in 2005. Road and landfill construction, septic tank leach fields and other construction applications consumed nearly 50 million tires in 2005.
The report also indicates that since 1990, the number of scrap tires in stockpiles has been reduced by 81 percent. Of the remaining stockpiles, 85 percent are concentrated in 7 states: Alabama, Colorado, Connecticut, Michigan, New York, Pennsylvania and Texas.
Access a release from RMA (click here). Access the complete 93-page report (click here). Access RMA's Scrap Tire Management website for extensive information (click here). Access U.S. EPA's Scrap Tire Management website for additional information (click here). [*Solid]
Friday, November 17, 2006
NAM, NSWMA & NTA Enter Supreme Court "Flow Control" Case
Nov 14: - The National Association of Manufacturers (NAM) joined other business groups in an amicus brief urging the U.S. Supreme Court to overturn a controversial decision by the Second Circuit Court of Appeals which they say could lead to a resumption of local solid waste disposal monopolies – reducing competition and raising prices for consumers. The case, United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority (Case No. 05-1345), was accepted by the Supreme Court on September 26, 2006, and is scheduled for oral argument on January 8, 2007 [See WIMS 11/14/06].
According to NAM's release, prior to 1994, many local government entities sought to control the flow and disposal of solid waste within their jurisdictions, denying trash haulers access to interstate competition, thus requiring them to pay the going local rates which were often set arbitrarily high. Trash haulers sought relief from this monopoly practice in the courts. In 1994 in C&A Carbone v. Clarkstown the Supreme Court ruled that such restrictive practices are a violation of the Commerce Clause of the Constitution which forbids state and local governments to interfere with interstate commerce.
The amicus brief filed by the NAM, the National Solid Wastes Management Association (NSWMA) and the American Trucking Associations (ATA) contends that the pre-Carbone monopolization of solid waste disposal led to predictable escalation of prices “as protected facilities set their rates without fear of competition. Moreover, a snowball effect was rapidly developing, as other localities were forced to respond by enacting their own flow control laws to protect local facilities which previously had depended on out-of-state waste for their financial viability.”
The groups said that if the Supreme Court does not overrule United Haulers, the interstate market in solid waste and recyclables will be seriously disrupted. Their brief indicates that, “Over 60 percent of the nation’s waste facilities currently are owned by public entities. The Second Circuit’s decision, by providing a blueprint for governments to evade Carbone, virtually ensures that flow control laws promptly will be re-enacted with respect to many of those facilities, thereby locking millions of tons of waste out of the interstate market.”
Access a NAM release (click here). Access the complete 35-page brief (click here). Access the NSWMA flow control litigation website for background information on this and other flow control cases (click here). [*Solid]
According to NAM's release, prior to 1994, many local government entities sought to control the flow and disposal of solid waste within their jurisdictions, denying trash haulers access to interstate competition, thus requiring them to pay the going local rates which were often set arbitrarily high. Trash haulers sought relief from this monopoly practice in the courts. In 1994 in C&A Carbone v. Clarkstown the Supreme Court ruled that such restrictive practices are a violation of the Commerce Clause of the Constitution which forbids state and local governments to interfere with interstate commerce.
The amicus brief filed by the NAM, the National Solid Wastes Management Association (NSWMA) and the American Trucking Associations (ATA) contends that the pre-Carbone monopolization of solid waste disposal led to predictable escalation of prices “as protected facilities set their rates without fear of competition. Moreover, a snowball effect was rapidly developing, as other localities were forced to respond by enacting their own flow control laws to protect local facilities which previously had depended on out-of-state waste for their financial viability.”
The groups said that if the Supreme Court does not overrule United Haulers, the interstate market in solid waste and recyclables will be seriously disrupted. Their brief indicates that, “Over 60 percent of the nation’s waste facilities currently are owned by public entities. The Second Circuit’s decision, by providing a blueprint for governments to evade Carbone, virtually ensures that flow control laws promptly will be re-enacted with respect to many of those facilities, thereby locking millions of tons of waste out of the interstate market.”
Access a NAM release (click here). Access the complete 35-page brief (click here). Access the NSWMA flow control litigation website for background information on this and other flow control cases (click here). [*Solid]
Tuesday, November 14, 2006
Argument Set For Supreme Court "Flow Control" Case
Nov 13: The U.S. Supreme Court has set an argument date of January 8, 2007, in the case of United Haulers Assoc., Inc. v. Oneida-Herkimer Solid Waste Management Authority (Case No. 05-1345). On September 26, 2006, the High Court agreed to hear the case following a previous denial in 2002 [See links to detailed history below]. The case is being appealed from the U.S. Court of Appeals, Second Circuit, February 16, 2006, decision (Case No. 05-2024) which upheld the Northern District of New York decision [See WIMS 3/1/06]. The district court found that the municipal solid waste flow control ordinances enacted and implemented by the Authority did not impose a "differential burden on interstate commerce." Thus, the district court found that the local ordinances did not violate the dormant Commerce Clause. This important flow control case that supports the local regulation and its related recycling program, for the first time raises a local government environmental tort liability and recycling encouragement rationale for local flow control regulations, which have basically been deemed invalid since the U.S. Supreme issued its C & A Carbone, Inc. v. Town of Clarkstown decision in 1994.
In its discussion of the issues involved in the case the Supreme Court says, "This Court held in C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 386 (1994), that 'a so-called flow control ordinance, which require[d] all solid waste to be processed at a designated transfer station before leaving the municipality,’ discriminated against interstate commerce and was invalid under the Commerce Clause because it “depriv[ed] competitors, including out-of-state firms, of access to a local market.” This case presents two questions, the first of which is the subject of an acknowledged circuit conflict: (1) Whether the virtually per se prohibition against 'hoard[ing] solid waste' (Id. at 392) recognized in Carbone is inapplicable when the 'preferred processing facility' (ibid.) is owned by a public entity; [and] (2) Whether a flow-control ordinance that requires delivery of all solid waste to a publicly owned local facility and thus prohibits its exportation imposes so 'insubstantial' a burden on interstate commerce that the provision satisfies the Commerce Clause if it serves even a 'minimal' local benefit."
The Second Circuit said in its decision, "even if we were to recognize that the ordinances burden interstate commerce, we would find that the burden imposed is not clearly excessive in relation to the local benefits conferred by the ordinances... We therefore decline to resolve the former question," and affirmed the district court decision. Additionally, the Appeals Court ruled in part, "The record also demonstrates that financing is not the sole purpose of the flow control ordinances. Rather, the flow control measures substantially facilitate the Counties’ goal of establishing a comprehensive waste management system that encourages waste volume reduction, recycling, and reuse and ensures the proper disposal of hazardous wastes, thereby reducing the Counties’ exposure to costly environmental tort suits. See B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992) (holding that “a municipality may be liable as a potentially responsible party if it arranges for the disposal of hazardous substances”).
The Second Circuit continued, "In our view, then, the local benefits of the flow control measures substantially outweigh whatever modest differential burden they may place on interstate commerce. Because the Pike test places the onus on the plaintiffs to show that this burden is clearly excessive in relation to these benefits, we easily find that the Counties’ flow control ordinances do not violate the dormant Commerce Clause, and therefore do not decide whether the ordinances burden interstate commerce at all."
Adding to the interest in the case the U.S. Court of Appeals, Sixth Circuit, in the case of National Solid Wastes v. Daviess County KY (Case No. 04-6498), upheld a district court ruling in a similar case saying that a proposed Daviess County Ordinance was unconstitutional, and enjoined the County from enforcing it [See WIMS 1/25/06]. The Appeals Court cited what it called three relevant waste management cases -- C&A Carbone v. Clarkstown (Supreme Court); Waste Mgmt., Inc. v. Metro. Gov’t (6th Circuit); and Huish Detergents, Inc. v. Warren County (6th Circuit). The Appeals Court said, "The three cases cited above leave little doubt that the Ordinance in this case discriminates against interstate commerce."
The Sixth Circuit Appeals Court also said it refused to adopt what it termed, "the public-private distinction with respect to the dormant commerce clause;" as provided in the Second Circuit Court of Appeals case of United Haulers Assoc., Inc. v. Oneida-Herkimer Solid Waste Mgmt. Authority. The Sixth Circuit called the Second Circuit opinion "a surprising decision," where the it found that a county ordinance that required waste collectors to dispose of solid waste at approved processing sites designated by the county, "did not discriminate against interstate commerce." The Sixth Circuit said, "...this Court respectfully disagrees with the Second Circuit on the proposition that Carbone lends support for the public-private distinction drawn by that court."
Access the Supreme Court docket in the case (click here). Access a more detailed account of the long history in this case from the Medill School of Journalism (click here). Access the Second Circuit opinion (click here). Access the Sixth Circuit opinion (click here).
In its discussion of the issues involved in the case the Supreme Court says, "This Court held in C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 386 (1994), that 'a so-called flow control ordinance, which require[d] all solid waste to be processed at a designated transfer station before leaving the municipality,’ discriminated against interstate commerce and was invalid under the Commerce Clause because it “depriv[ed] competitors, including out-of-state firms, of access to a local market.” This case presents two questions, the first of which is the subject of an acknowledged circuit conflict: (1) Whether the virtually per se prohibition against 'hoard[ing] solid waste' (Id. at 392) recognized in Carbone is inapplicable when the 'preferred processing facility' (ibid.) is owned by a public entity; [and] (2) Whether a flow-control ordinance that requires delivery of all solid waste to a publicly owned local facility and thus prohibits its exportation imposes so 'insubstantial' a burden on interstate commerce that the provision satisfies the Commerce Clause if it serves even a 'minimal' local benefit."
The Second Circuit said in its decision, "even if we were to recognize that the ordinances burden interstate commerce, we would find that the burden imposed is not clearly excessive in relation to the local benefits conferred by the ordinances... We therefore decline to resolve the former question," and affirmed the district court decision. Additionally, the Appeals Court ruled in part, "The record also demonstrates that financing is not the sole purpose of the flow control ordinances. Rather, the flow control measures substantially facilitate the Counties’ goal of establishing a comprehensive waste management system that encourages waste volume reduction, recycling, and reuse and ensures the proper disposal of hazardous wastes, thereby reducing the Counties’ exposure to costly environmental tort suits. See B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992) (holding that “a municipality may be liable as a potentially responsible party if it arranges for the disposal of hazardous substances”).
The Second Circuit continued, "In our view, then, the local benefits of the flow control measures substantially outweigh whatever modest differential burden they may place on interstate commerce. Because the Pike test places the onus on the plaintiffs to show that this burden is clearly excessive in relation to these benefits, we easily find that the Counties’ flow control ordinances do not violate the dormant Commerce Clause, and therefore do not decide whether the ordinances burden interstate commerce at all."
Adding to the interest in the case the U.S. Court of Appeals, Sixth Circuit, in the case of National Solid Wastes v. Daviess County KY (Case No. 04-6498), upheld a district court ruling in a similar case saying that a proposed Daviess County Ordinance was unconstitutional, and enjoined the County from enforcing it [See WIMS 1/25/06]. The Appeals Court cited what it called three relevant waste management cases -- C&A Carbone v. Clarkstown (Supreme Court); Waste Mgmt., Inc. v. Metro. Gov’t (6th Circuit); and Huish Detergents, Inc. v. Warren County (6th Circuit). The Appeals Court said, "The three cases cited above leave little doubt that the Ordinance in this case discriminates against interstate commerce."
The Sixth Circuit Appeals Court also said it refused to adopt what it termed, "the public-private distinction with respect to the dormant commerce clause;" as provided in the Second Circuit Court of Appeals case of United Haulers Assoc., Inc. v. Oneida-Herkimer Solid Waste Mgmt. Authority. The Sixth Circuit called the Second Circuit opinion "a surprising decision," where the it found that a county ordinance that required waste collectors to dispose of solid waste at approved processing sites designated by the county, "did not discriminate against interstate commerce." The Sixth Circuit said, "...this Court respectfully disagrees with the Second Circuit on the proposition that Carbone lends support for the public-private distinction drawn by that court."
Access the Supreme Court docket in the case (click here). Access a more detailed account of the long history in this case from the Medill School of Journalism (click here). Access the Second Circuit opinion (click here). Access the Sixth Circuit opinion (click here).
Monday, October 23, 2006
U.S. Recycling Rate Climbs To 32%; Generation Down
Oct 23: According to a new report from U.S. EPA, Americans are recycling more and throwing away less. Administrator Stephen Johnson, speaking at the National Recycling Coalition Conference in Atlanta, said that the U.S. recycled 32 percent of its waste in 2005. Including composting, Americans recycled 79 million tons, representing a 2 percent increase from 2004 and a huge jump from 16 percent in 1990. In all, Americans generated nearly 246 million tons of municipal solid waste in 2005 – a decrease of nearly 2 million tons from 2004. The decrease is due in part to the decline in individual waste generation to about 4.5 pounds per person per day, representing a 1.5 percent decrease from 2004. In addition to generating less waste, individuals recycled nearly 1.5 pounds per person per day.
Other data contained in the report show recycling trends across the board are generally up: container and packaging recycling increased to 40 percent; nearly 62 percent of yard waste was composted; and about 42 million tons of paper were recycled -- a 50 percent recycling rate. EPA has collected and reported on data going back to 1960 on the generation and disposal of waste in the United States. The information is used to measure the success of municipal solid waste reduction and recycling programs across the country. The data also shows where the nation needs to make improvements in municipal waste management. EPA is releasing the executive summary now, until the full report and data tables are available. EPA plans to update the full report every two years.
Access a release (click here). Access an Executive Summary of the report and links to previous reports (click here). Access a basic overview of 2005 Municipal Solid Waste Fact and Figures (click here). [*Solid, *P2]
Other data contained in the report show recycling trends across the board are generally up: container and packaging recycling increased to 40 percent; nearly 62 percent of yard waste was composted; and about 42 million tons of paper were recycled -- a 50 percent recycling rate. EPA has collected and reported on data going back to 1960 on the generation and disposal of waste in the United States. The information is used to measure the success of municipal solid waste reduction and recycling programs across the country. The data also shows where the nation needs to make improvements in municipal waste management. EPA is releasing the executive summary now, until the full report and data tables are available. EPA plans to update the full report every two years.
Access a release (click here). Access an Executive Summary of the report and links to previous reports (click here). Access a basic overview of 2005 Municipal Solid Waste Fact and Figures (click here). [*Solid, *P2]
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