Bill Kettlewell Excavating v. MICHIGAN DNR, 89-CV-30015-PH.

• Decision Date: 02 March 1990
• Docket Number: No. 89-CV-30015-PH.,89-CV-30015-PH.
• Parties: BILL KETTLEWELL EXCAVATING, INC., d/b/a Fort Gratiot Sanitary Landfill, Plaintiff, v. MICHIGAN DEPARTMENT OF NATURAL RESOURCES; David Hales, Director of Michigan Department of Natural Resources; St. Clair County Health Department; John B. Parsons, Director of St. Clair County Health Department; St. Clair County Metropolitan Planning Commission, and Gordon Ruttan, Director; St. Clair County Solid Waste Planning Committee and Peg Clute, Chairperson, Defendants.
• Court: U.S. District Court — Western District of Michigan

732 F. Supp. 761

BILL KETTLEWELL EXCAVATING, INC., d/b/a Fort Gratiot Sanitary Landfill, Plaintiff, v. MICHIGAN DEPARTMENT OF NATURAL RESOURCES; David Hales, Director of Michigan Department of Natural Resources; St. Clair County Health Department; John B. Parsons, Director of St. Clair County Health Department; St. Clair County Metropolitan Planning Commission, and Gordon Ruttan, Director; St. Clair County Solid Waste Planning Committee and Peg Clute, Chairperson, Defendants.

No. 89-CV-30015-PH.

United States District Court, E.D. Michigan, S.D.

March 2, 1990.

Daniel P. Perk, Robert A. Fineman, Honigman, Miller, Detroit, Mich., David R. Heyboer, Luce, Henderson, Port Huron, Mich., for plaintiff.

Frank J. Kelley, Atty. Gen., Thomas J. Emery, Leo H. Friedman, Asst. Attys. Gen., Natural Resources Div., Lansing, Mich., for defendants DNR and Hales.

Robert H. Cleland, St. Clair County Corp. Counsel, Port Huron, Mich., Lawrence R. Ternan, Beier Howlett Ternan Jones Shea & Hafeli, Bloomfield Hills, Mich., for all county defendants.

MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

Currently pending is the plaintiff's motion for summary judgment requesting the following alternative relief: (1) a declaration that Mich.Comp.Laws Ann. §§ 299.413a and 299.430(2) are unconstitutional to the extent they pertain to disposal of waste generated outside the State of Michigan, along with an injunction prohibiting their enforcement; or (2) a declaration that various St. Clair County governmental entities, defendants herein, unconstitutionally applied these sections in denying the plaintiff's application for a permit to import out-of-state waste to the Fort Gratiot Sanitary Landfill, along with an injunction prohibiting future unconstitutional permit denials.

All defendants have responded, and the Court has heard oral argument. The Court is now prepared to rule.

I.

The plaintiff raises the due process and commerce clauses of the United States Constitution as bars to the enforcement of certain amendments to the Michigan Solid Waste Management Act (MSWMA), Mich. Comp.Laws Ann. § 299.401 et seq. The challenged amendments provide as follows:

A person shall not accept for disposal solid waste that is not generated in the county in which the disposal area is located unless the acceptance of solid waste that is not generated in the county is explicitly authorized in the approved county solid waste management plan.

* * * * * *

In order for a disposal area to serve the disposal needs of another county, state, or country, the service must be explicitly authorized in the approved solid waste management plan of the receiving county. With regard to intercounty service within Michigan, the service must also be explicitly authorized in the exporting county's solid waste management plan.

Mich.Comp.Laws Ann. §§ 299.413a, 299.430(2). In February of 1989, the plaintiff applied to the St. Clair County Metropolitan Planning Commission (the Commission) for approval of a plan that would allow the disposal of 1750 tons of waste per day, from sources originating outside of the County, at the plaintiff's private landfill. In rejecting the plaintiff's application, and pursuant to the authority granted in the MSWMA amendments, the Commission's Staff Report notes the County's policy banning importation of any waste, whether generated in other Michigan counties or generated in other states, into the County's landfills. The plaintiff now urges that the MSWMA amendments, by requiring explicit county approval for disposal of out-of-state waste, impermissibly discriminate against interstate commerce by placing the burden on preserving Michigan's landfill space on other states. Alternatively, the plaintiff asserts that the Commission's denial of the plaintiff's application to import out-of-state waste involved an unconstitutional application of the amendments to the plaintiff, in that inadequate criteria exist for evaluating permit applications to satisfy due process.

II.

Resolution of these issues requires analysis of the several Supreme Court decisions addressing the "dormant" aspects of the commerce clause. More particularly, the Court must ascertain whether the MSWMA amendments represent "basically a protectionist measure, or whether they can fairly be viewed as laws directed to legitimate local concerns, with effects upon interstate commerce that are only incidental." City of Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2536, 57 L.Ed.2d 475 (1978). If the amendments are simply aimed at economic protectionism, the defendants must hurdle a "virtual per se rule of invalidity" to survive constitutional challenge. Id. at 624, 98 S.Ct. at 2535. If, however, the amendments serve a legitimate public interest, and only incidentally burden interstate commerce, the amendments "will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970), citing Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443, 80 S.Ct. 813, 815-16, 4 L.Ed.2d 852 (1960). In evaluating the protectionist character of legislation, courts must assess "legislative means as well as legislative ends." Philadelphia, 437 U.S. at 626, 98 S.Ct. at 2537.

The critical question, therefore, is whether the MSWMA amendments, either through their means or their ends, serve an economic protectionist purpose. In Philadelphia, the New Jersey statute (ch. 363) provided that

no person shall bring into this State any solid or liquid waste which originated or was collected outside the territorial limits of the State, except garbage to be fed to swine in the State of New Jersey, until the commissioner of the state Department of Environmental Protection shall determine that such action can be permitted without endangering the public health, safety and welfare and has promulgated regulations permitting and regulating the treatment and disposal of such waste in this State.

N.J.Stat.Ann. § 13:1I-10 (West Supp.1978). The New Jersey commissioner, acting pursuant to the statute's authority, promulgated regulations banning, with limited exceptions, the importation of out-of-state waste to any of New Jersey's landfills.

The statute expressed its purpose as protecting New Jersey's environment through a limitation on the volume of waste transportable to state landfills. Notwithstanding this apparently legitimate purpose, however, the Supreme Court found the statute discriminatory and violative of the commerce clause:

It does not matter whether the ultimate aim of ch 363 is to reduce the waste disposal costs of New Jersey residents or to save remaining open lands from pollution, for we assume New Jersey has every right to protect its residents' pocketbooks as well as their environment. And it may be assumed as well that New Jersey may pursue those ends by slowing the flow of all waste into the State's remaining landfills, even though interstate commerce may incidentally be affected. But whatever New Jersey's ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently. Both on its face and in its plain effect, ch 363 violates this principle of nondiscrimination.

437 U.S. at 626, 627, 98 S.Ct. at 2537. Thus, the Supreme Court dictated its general belief concerning the priority of the commerce clause vis-a-vis state police powers: regardless of the legitimacy of the local purpose underlying a statute, such statute will not be upheld if its enforcement requires direct discrimination against interstate commerce.

For every rule, however, there exists an exception. Respecting commerce clause/police power analysis, the exception is illustrated in Maine v. Taylor, 477 U.S. 131, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986). There, the Supreme Court held that "once a state law is shown to discriminate against interstate commerce `either on its face or in its practical effect,' the burden falls on the State to demonstrate both that the statute `serves a legitimate local purpose,' and that this purpose could not be served as well by available nondiscriminatory means." Id. at 138, 106 S.Ct. at 2447. Although the second factor, concerning alternative means, avoided express mention in Philadelphia, it appears the Supreme Court considered this factor when it noted that "it may be assumed that New Jersey may pursue its legislative ends by slowing the flow of all waste into the State's remaining landfills...." 437 U.S. at 626, 98 S.Ct. at 2537 (emphasis in original). In other words, there existed a less discriminatory alternative that would allow the protection of New Jersey's environment—banning all disposal of waste in the State's landfills.

Maine v. Taylor demonstrates application of these factors through the validation of a state law banning importation of certain species of live baitfish into Maine. First, the Supreme Court upheld the district court's finding of a legitimate local purpose for the importation ban. The State contended that such importation presented threats to the State's ecology through the introduction of parasites and non-native species into its waterways. The district court, after hearing evidence on this issue, concurred with the State's contention. Having found a legitimate purpose for the ban, the Supreme Court next addressed the issue of availability of a less discriminatory alternative to the ban. Again, the Supreme Court exhibited deference to the district court's factual findings, and refused to set aside the conclusion that no scientifically-accepted techniques existed for the sampling and inspection of live baitfish. Given this, and given earlier precedent holding that states are not required to develop new and unproven means in order to create nondiscriminatory methods of achieving...