National Elec. Mfrs. Ass'n v. Sorrell

Citation72 F.Supp.2d 449
Decision Date08 November 1999
Docket NumberNo. Civ. 1:99CV203.,Civ. 1:99CV203.
CourtU.S. District Court — District of Vermont
PartiesNATIONAL ELECTRICAL MANUFACTURERS ASSOCIATION v. William H. SORRELL, as Attorney General of the State Vermont, and John Kassel, as Secretary, Vermont Agency of Natural Resources.

Geoffry W. Crawford, O'Neill, Crawford & Green, P.C., Burlington, VT, for appellant.

Ronald A. Shems, Office of Vermont Attorney General, Montpelier, VT, for appellee.

RULING ON MOTION FOR PRELIMINARY INJUNCTION

MURTHA, Chief Judge.

I. Introduction

Recently enacted, 10 V.S.A. § 6621d(a) requires manufacturers of mercury-containing light bulbs (hereinafter also referred to as "lamps") to place certain labels on their lamps and packaging. Through this suit, the National Electrical Manufacturers Association (hereinafter "NEMA") seeks to have this Court declare Vermont's labeling requirement unconstitutional in that it violates its members' civil rights under the First Amendment, the Commerce Clause and the Supremacy Clause of the United States Constitution.

NEMA has moved for a preliminary injunction which would prohibit the defendants from enforcing § 6621d(a) and the regulations promulgated thereunder. For the reasons set forth below, the plaintiff's Motion for Preliminary Injunction is GRANTED.1

II. Background

The record before the Court includes testimony presented at a hearing conducted on September 22, 23 and 24, 1999, as well as admissible evidence presented in the form of affidavits and exhibits. See Davis v. New York City Hous. Auth., 166 F.3d 432, 437-38 (2d Cir.1999) ("[W]hile affidavits may be considered on a preliminary injunction motion, motions for preliminary injunction should not be resolved on the basis of affidavits that evince disputed issues of fact."). Upon review of the present record and the testimony presented, the Court finds the following as relevant to the disposition of the plaintiff's Motion for Preliminary Injunction. See Fed.R.Civ.P. 65(a)(2) ("[A]ny evidence received upon an application for preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial.")

The plaintiff, NEMA, is a trade association that includes lamp manufacturers whose lamps are sold in Vermont and nationwide. The defendants, Vermont Attorney General William Sorrell and Vermont Secretary of the Agency of Natural Resources (hereinafter "the Agency") John Kassel are responsible for administration and enforcement of the labeling statute at issue.

The volume of testimony presented and evidence submitted reveals the parties actually dispute very little. No one disputes mercury is a toxic substance, exposure to which can result in serious impacts on human health and the environment. No one disputes that some lamps manufactured and distributed by NEMA's members contain mercury. No one disputes that certain consumers should be encouraged to use mercury-containing lamps because they are more energy-efficient than regular incandescent bulbs, thereby reducing needed energy production and the emission of pollutants into the environment. No one disputes Vermont has an interest in reducing the amount of mercury which finds its way into the environment. The only substantial dispute is whether Vermont's mercury labeling law, 10 V.S.A. § 6621d(a), furthers the goal of reducing the amount of mercury in the environment in a way that is consistent with Constitutional prohibitions against excessive state interference with a commercial entity's rights to engage in interstate commerce and free speech.

In relevant part, section 6621d(a) provides:

Effective March 1, 2000, a manufacturer or wholesaler may not sell at retail in this state, to a retailer in this state, or for use in this state, and the retailer may not knowingly sell, any of the following items at retail if they contain mercury added during the manufacture, unless the item is labeled. The label must clearly inform the purchaser or consumer that mercury is present in the item and that the item may not be disposed of or placed in the waste stream destined for disposal until the mercury is removed and reused, recycled, or otherwise managed to ensure that it does not become part of solid waste or wastewater. Primary responsibility for affixing labels required under this section shall be on the manufacturer, and not on the wholesaler, or retailer ... Items to be labeled are: ... A lamp.

Pursuant to section 6621d(f), the Agency of Natural Resources promulgated rules and standards for labeling mercury-added products. Section 6-803(b) of the Agency's Solid Waste Management Rules ("SWMR") provides:

(1) The label must clearly inform the purchaser or consumer that mercury is present in the item and that the item may not be disposed of or placed in a waste stream designed for disposal until the mercury is removed and reused, recycled, or otherwise managed to ensure that mercury does not become part of solid waste or wastewater.

(2) A label must be clearly visible and legible to consumers prior to purchase of the product. The label must be located on a surface of the product that is visible during installation and removal.

(3) For labels affixed to products, the required words or symbols must be printed, mounted, molded, or engraved on the surface of the product using materials sufficiently durable to remain legible for the useful life of the product.

(4) For products with enclosed mercury-added switches, both the enclosed device and the larger product must be labeled.

(5) A listed mercury-added consumer product must be labeled if manufactured after July 1, 1999 [as amended by statute, March 1, 2000].

(6) Primary responsibility for affixing the required labels shall be on the manufacturer, and not on the wholesaler or retailer.

SWMR section 6-803(c) provides for an alternative labeling procedure:

The Secretary may administratively authorize alternative labeling, including package labeling, for mercury-added consumer products listed in Subsection 6-803(a)(2) above under the following conditions:

(1) A manufacturer must submit a written request for alternative labeling documenting that a product or class of products cannot reasonably be labeled to comply with specific requirements of Subsections 6-803(a) and/or (b) above.

(2) All authorizations for alternative labeling granted under this Subsection will be limited in duration and may be renewed.

The vast majority of lamps subject to Vermont's labeling requirement fall into three broad categories: (1) elongated fluorescent lamps of the type widely used in retail, residential, office and industrial locations; (2) compact fluorescent lamps, which are similar in size and use to conventional incandescent bulbs; and (3) high-intensity discharge lamps, also referred to as HID lamps, which are designed to be especially energy-efficient. Currently 11 manufacturers, most of which are NEMA members, make 4800 varieties of mercury-containing lamps for sale in Vermont.

The lamps are manufactured in a variety of places world-wide, including Europe, Asia, and South America. After manufacture, the lamps are shipped to central distribution centers which serve large regions. For example, a distribution center in Florida may supply retailers on the entire east coast. It is impossible to predict whether any particular lamps will eventually end up on a particular retailer's shelf either in Vermont or anywhere else in the United States.

Approximately 1.1 million lamps per year are sold in Vermont. This figure represents about .02% of total lamp sales in the United States.

Accordingly, it is virtually certain that any manufacturer which plans to sell lamps in Vermont will have to label all lamps it produces to comply with the labeling law. As a practical matter, it appears manufacturers will either refrain from selling mercury-containing lamps in Vermont or will have to label all bulbs manufactured world-wide with the Vermont-required label. It is apparent that labeled bulbs which find their way to jurisdictions other than Vermont will cause confusion in that they identify the product as a hazardous waste which must be recycled. However, no jurisdiction has established recycling facilities for mercury-containing lamps, a factor which may discourage potential purchasers from buying these admittedly energy-efficient bulbs.2

Prior to instituting this suit, NEMA and the Agency apparently engaged in unsuccessful attempts to resolve this matter. In particular, the Agency rejected NEMA's offer to meet new statutory obligations by only providing informational and warning signs for Vermont retailers to post at the point-of-purchase.

Accordingly, at this time, it appears the Agency will require manufacturers of mercury-containing lamps to permanently etch their bulbs with the symbol "Hg" in a circle, a marking which no other state or nation requires. "Hg" is the abbreviation on the periodic table for mercury. In addition, the Agency plans to require manufacturers to place on the lamp packaging an explanation that "Hg" means "mercury" and the following instruction: "If Purchased in Vermont — Don't Put in Trash — Recycle or Dispose of as Hazardous Waste."

As with other types of hazardous materials which require recycling or disposal in special facilities, the consuming public must be informed and educated as to the need for disposal of these products other than in landfills. No law requiring labeling of a hazardous substance will prove effective unless users realize the dangers associated with placing these materials in the general waste stream and are provided alternative sites for disposal by the government or private industry.

Absent an extensive education campaign, the symbol "Hg" will be meaningless to most consumers. The state, in fact, plans to undertake an extensive, yet to date poorly defined, campaign to educate consumers about mercury and the proper disposal of...

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1 cases
  • Nat'l Elect. Mfr. Ass'n v. Sorrell, PLAINTIFF-APPELLEE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 12, 2000
    ...finding that NEMA had demonstrated irreparable harm and a likelihood of success on the merits. Nat'l Elec. Mfrs. Ass'n v. Sorrell, 72 F. Supp. 2d 449, 456 (D. Vt. 1999) (hereinafter "NEMA"). According to the district court, NEMA was irreparably harmed because (1) if NEMA ultimately prevaile......

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