Fourth Circuit Opines on Virginia's Out-Of-State Municipal Solid Waste Disposal Issue
October 19, 2001
The Fourth Circuit struck down the most recent attempt by Virginia to
restrict the increasing volume of out-of-state municipal solid waste (MSW)
destined for its landfills. In Waste Management Holdings Inc. v. Gilmore,
252 F.3d 316 (4th Cir. 2001) the court considered five statutory provisions adopted by the
Virginia General Assembly in early 1999. These provisions, identified as the
"Cap Provision," "Stacking Provision," "Three Rivers
Ban," "Trucking Certification Provision" and "Four or More
Axle Provision," constituted the Virginia Legislature’s response to what
it perceived as a growing crisis resulting from the influx of out-of-state MSW.
These five provisions severely restricted the ability of Virginia landfill
operators to import or accept waste generated out of state. A group of affected
landfill operators and waste transporters joined with one Virginia county in
bringing an action against Virginia’s Governor, Secretary of Natural Resources
and Director of the Department of Environmental Control pursuant to 42 U.S.C.
§1983. The plaintiffs claimed the provisions were unconstitutional and sought
an injunction against enforcement of the limitations.
The legislation arose in response to what the Virginia legislature perceived
to be the threat of inundation of its landfills by waste generated in other
states, primarily from New York. In 1997, New York announced the planned 2001
closure of the Fresh Kills Landfill, located on Staten Island. Fresh Kills
handled the majority of waste generated by the City of New York. In anticipation
of its closing, the New York City Department of Sanitation began requesting
proposals for disposal contracts from out-of-state landfill operators. The City
of New York awarded two contracts to Waste Management, one of the plaintiffs in
this action. The majority of MSW addressed by the Waste Management contracts
went to its facilities in Virginia. In March 1999, Waste Management bid on a
third contract for New York City MSW, with this additional waste also destined
for its Virginia facilities. In addition to the three contracts, New York City
was considering Waste Management for a 24-year contract to dispose of an
additional 12,000 tons per day of New York City MSW. During this time, the
Congressional Research Service released a report ranking Virginia second only to
Pennsylvania for disposal of out-of-state MSW. Within a month of the release of
this report, Virginia State Senator Bill Bolling announced his intention to lead
an effort to reduce the amount of out-of-state MSW disposed in Virginia.
Senator Bolling joined with Governor James Gilmore III in sponsoring the five
provisions targeted to restrict the importation of out-of-state MSW.
The Cap Provision limited the amount of MSW that could be accepted by any
Virginia landfill. Specifically, the provision limited state landfills to the
greater of either 2,000 tons per day or the average amount accepted by the
landfill in 1998. Of the then-existing 70 Virginia landfills, seven were
"regional," taking primarily out-of-state waste, while the remaining
63 accepted locally generated wastes. The seven regional landfills typically
accepted over 2,000 tons per day, while the regional landfills accepted amounts
significantly below the limit.
The Stacking Provision limited stacking of waste containers on barges to two
layers. Most of the MSW transported via barge into Virginia came from
out-of-state on barges with containers stacked five high. This allowed Waste
Management to import 2,500 to 3,000 tons per day of MSW into Virginia. The
stacking limit more than doubled the cost of shipping MSW into the state.
The Three Rivers Ban prohibited any commercial transport of MSW via ship,
barge or other vessel on three Virginia Rivers; the Rappahanock, James and York.
As most of the MSW shipped by river originated out of state, the Three Rivers
Ban had the greatest impact on imported wastes.
The Trucking Certification Provision prohibited Virginia landfill operators
from accepting MSW from trucks with four or more axles unless the transporter
provided certification that the MSW did not contain any substances prohibited
for disposal. The Four or More Axle Provision required owners of trucks with
four or more axles to meet financial assurance requirements prior to
transporting MSW in Virginia. This provision had a disproportionate impact on
imported wastes as out-of-state waste was primarily transported in trucks with
four or more axles, while in-state wastes were transported primarily in trucks
with fewer than four axles.
In the complaint the plaintiffs alleged that the five statutory provisions
violated the Constitution, and specifically the dormant Commerce Clause, the
Contract Clause and the Equal Protection Clause. Plaintiffs also challenged the
Three Rivers Ban and Stacking Provisions on Supremacy Clause grounds. The
district court dismissed the Contract and Equal Protection claims, but granted
summary judgment to the plaintiffs on the remaining grounds, agreeing with the
plaintiffs’ other constitutional challenges. On defendants’ appeal, the
Fourth Circuit reviewed the district court’s grant of summary judgment de
novo.
The Court of Appeals found that the Stacking Provision and the Three Rivers
Ban had the practical effect of discriminating against out-of-state MSW, but
held that there existed genuine issues of material fact regarding the practical
effect of the remaining provisions. It then went on to examine whether the
Virginia legislature had a discriminatory purpose in enacting the five
provisions. Citing numerous examples from press releases and correspondence from
both Senator Bolling and Governor Gilmore, along with transcripts from the
Virginia General Assembly, the court easily concluded that no reasonable juror
could find that the provisions had any purpose other than reducing the flow of
out-of-state MSW into Virginia.
Once the court determined that adoption of the provisions served a
discriminatory purpose, the court assessed whether a valid justification existed
beyond economic protectionism. Further, the court looked for other,
non-discriminatory alternatives to the enacted legislation.
The court found that a valid justification for all five provisions could be
inferred by a reasonable jury because out-of-state MSW posed potential health
and safety risks not associated with waste generated in Virginia. Specifically,
Virginia had implemented more stringent restrictions than the exporting states
on the kinds of biological and hazardous substances allowed in MSW.
However, the court went on to hold that the defendants failed to meet their
burden of establishing that there were no less discriminatory alternatives for
the Cap Provision, the Trucking Certification Provision and the Four or More
Axle Provision. The court determined that a genuine issue of material fact
existed as to the Three Rivers Ban and the Stacking Provision, based on the
defendants’ showing that containers occasionally fell off barges and into the
waterways. Accordingly, the Fourth Circuit affirmed the district court’s grant
of summary judgment in favor of the plaintiffs on the dormant Commerce Clause
challenges to the Cap Provision, the Trucking Certification Provision and the
Four or More Axles Provision, but vacated the lower court’s decisions
regarding the Stacking Provision and Three Rivers Ban.
The court then turned to the plaintiffs’ Supremacy Clause claims pertaining
to the Stacking Provision and Three Rivers Ban. The plaintiffs argued that
federal provisions allowing federally licensed vessels to operate freely in each
state’s waters, subject to the legitimate exercise of a state’s police
powers, superseded the Virginia statutory limitation. The U.S. Supreme Court
previously held as unconstitutional a complete ban of federally licensed
commerce from state waters. Since the Three Rivers’ Ban excluded all federally
licensed barges carrying MSW from the identified rivers, the Fourth Circuit
concluded that this provision violated the Supremacy Clause. The court failed to
reach the same conclusion as to the Stacking Provision, and remanded this sole
provision for consideration by the district court. Accordingly, the future of
Virginia’s effort to stave off becoming "New York’s dumping
ground" appears grim.
For more information, contact Karen Mignone at 1-888-688-8500 or via e-mail
at kmignone@hklaw.com.
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