Southeastern Oakland County Resource Recovery Authority v. City of Madison Heights

• Decision Date: 22 September 1993
• Docket Number: No. 92-2427,92-2427
• Citation: 5 F.3d 166
• Parties: 23 Envtl. L. Rep. 21,512 SOUTHEASTERN OAKLAND COUNTY RESOURCE RECOVERY AUTHORITY, a Michigan public corporation, Plaintiff-Appellee, v. The CITY OF MADISON HEIGHTS, a municipal corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 166

5 F.3d 166

23 Envtl. L. Rep. 21,512

SOUTHEASTERN OAKLAND COUNTY RESOURCE RECOVERY AUTHORITY, a Michigan public corporation, Plaintiff-Appellee, v. The CITY OF MADISON HEIGHTS, a municipal corporation,

Defendant-Appellant.

No. 92-2427.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 13, 1993.

Decided Sept. 22, 1993.

Marty A. Burnstein (briefed and argued), Ronald L. Cornell, Jr., Seyburn, Kahn, Ginn, Bess & Howard, Southfield, MI, for plaintiff-appellee.

Hugh B. Thomas (argued and briefed), Berry, Moorman, King, Cook & Hudson, Detroit, MI, Larry H. Sherman, Sherman & Sherman, Bingham Farms, MI, for defendant-appellant.

Mark A. Richardson, Troy, MI (briefed), for Clean Air Please, amicus curiae.

Before: MARTIN and SUHRHEINRICH, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.

SUHRHEINRICH, Circuit Judge.

In this preemption case, defendant City of Madison Heights, Michigan (Madison Heights) challenges the district court's grant of summary judgment in favor of plaintiff Southeastern Oakland County Resource Recovery Authority (SOCRRA). For the following reasons, we AFFIRM.

I.

SOCRRA is a Michigan public corporation formed in 1955 to collect and dispose of non-hazardous solid waste for fourteen communities of Oakland County, including Madison Heights. From 1955 to 1988, SOCRRA operated a solid waste incinerator in Madison Heights, as part of Oakland County's Solid Waste Management Plan, a plan required by Michigan's Solid Waste Management Act (SWMA), Mich.Comp. Laws Secs. 299.401-.436.

In 1990, SOCRRA proposed construction of a "Waste-to-Energy Facility" at the site of its old incinerator. The new facility would dispose of solid wastes, and generate electricity for sale to Detroit Edison. Oakland County has approved the new facility as part of its Five Year Plan Update to its Solid Waste Management Plan. SOCRRA's application for a permit under Michigan's Air Pollution Act (MAPA), Mich.Comp. Laws Secs. 336.1-.107 is currently pending with the Michigan Department of Natural Resources.

Madison Heights strenuously opposes the new facility because, although the site was originally in an unpopulated part of Oakland County, the community of Madison Heights has grown up around the facility. Presently, the site for the new facility is within 100 feet of a community park, 300 feet of a school, 550 feet of a residential subdivision, and 700 feet of a senior citizens center. Based on these concerns, and the lack of federal or state siting requirements for solid waste incinerators, ¹ Madison Heights passed a local ordinance regulating the location of air pollution emissions sources and solid waste incinerators. The ordinance, adopted in November 1990 after the new facility was included in Oakland County's Five Year Update Plan, states:

Sec. 3-6. Major Emission Sources.

After the effective date of this Ordinance, it shall be unlawful to construct a new or modify an existing major emission source any part of which will be or is located closer than 300 feet to any adjacent property line, public road right-of-way, lake or perennial stream, or closer than 900 feet to any existing occupied or unoccupied residence, public or school facility, health care facility, or recreational property. The term "adjacent property line" includes, but is not limited to, the perimeter of property which is owned by the owner or operator of the major emission source but which is leased to or otherwise lawfully occupied or used by another person or entity. The term "recreational property" includes parks, golf courses, athletic fields and similar properties.

Madison Heights Ordinance No. 874, Sec. 3-6 (emphasis added). An amendment adopted in September 1991, further provides:

Sec. 3-15 Solid Waste Incinerators.

After the effective date of this Ordinance, it shall be unlawful to build a new or modify an existing solid waste incinerator which has or will have an air emission source closer than 900 feet to any part of an existing occupied or unoccupied residence, public or school facility, health care facility, food service facility, recreational property (including parks, golf courses, athletic facilities and similar properties), lakes or perennial stream. Nothing in this Section is intended to exclude solid waste incinerators from the requirements or provisions of any other Section of this Chapter 3, as amended, and any violation hereof shall be subject to the Enforcement and Penalties provisions thereof.

Madison Heights Ordinance No. 884, Sec. 3-15 (emphasis added). It is undisputed that the new facility falls under the ordinance's requirements, and that compliance with the ordinance is impossible at the present proposed site of the new facility.

SOCRRA filed suit in Michigan Circuit Court challenging the ordinance as being preempted by the SWMA, Mich.Comp. Laws Sec. 299.430(4), as well as raising several other federal and state law counts. ² Madison Heights removed this case to federal district court. Both parties then filed motions for summary judgment on the SWMA preemption issue. Madison Heights argued that while the SWMA does purport to preempt certain local regulation of solid waste disposal facilities, it is itself preempted in that regard by the Clean Air Act (CAA), 42 U.S.C. Secs. 7401-7671q, and by the MAPA. The district court rejected these arguments, and found that the SWMA preempted the Madison Heights ordinance. This order was later made into a final judgment dismissing all other counts of SOCRRA's complaint by joint stipulation of the parties.

II.

We review grants of summary judgment de novo. Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). We may uphold the grant of summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988).

A.

The Constitution and laws of the United States are the supreme law of the land, U.S. Const. art. VI, cl. 2; therefore, if state law conflicts with federal law, the state law is preempted. CSX Transp., Inc. v. Easterwood, --- U.S. ----, ----, 113 S.Ct. 1732, 1737, 123 L.Ed.2d 387 (1993). Preemption will be found only if that is the "clear and manifest purpose of Congress." Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). When Congress has not stated its intent to preempt expressly, such intent may be inferred from an actual conflict between the federal and state laws. Cipollone v. Liggett Group, Inc., --- U.S. ---- ----, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992); Wisconsin Pub. Intervenor v. Mortier, --- U.S. ----, ----, 111 S.Ct. 2476, 2482, 115 L.Ed.2d 532 (1991). An actual conflict exists where compliance with both the federal and the state law is impossible, or where the state law stands as an obstacle to achievement of the goals of Congress. Mortier, --- U.S. at ----, 111 S.Ct. at 2482.

Section 299.430(4) of the SWMA preempts any local regulation of solid waste disposal facilities, such as the proposed waste-to-energy facility. See Fort Gratiot Charter Twp. v. Kettlewell, 150 Mich.App. 648, 655, 389 N.W.2d 468, appeal denied, 426 Mich. 867 (1986); Weber v. Orion Bldg. Inspector, 149 Mich.App. 660, 663, 386 N.W.2d 635, appeal denied, 425 Mich. 881 (1986); Southeastern Oakland County Incinerator Authority v. Avon Twp., 144 Mich.App. 39, 42-46, 372 N.W.2d 678 (1985). Madison Heights argues, however, that the SWMA Sec. 299.430(4) is itself preempted because it actually conflicts with certain sections of the CAA, which posit that the responsibility for air pollution abatement lies substantially with state and local legislatures, and that the CAA does not preclude state and local regulation of air pollution, so long as any state or local regulation is no less strict than federal standards. See CAA, 42 U.S.C. Secs. 7401(a)(3) ("[A]ir pollution prevention ... and air pollution control at its source is the primary responsibility of States and local governments...."), 7401(c) ("A primary goal of this chapter is to encourage or otherwise promote reasonable Federal, State, and local governmental actions, consistent with the provisions of this chapter, for pollution prevention."), 7416 (the CAA does not preclude states or political subdivisions thereof from adopting more stringent air pollution regulations), 7429(h)(1) (the CAA allows states and political subdivisions thereof to adopt more stringent solid waste incinerator standards). We disagree.

Even though the CAA certainly envisions a joint approach to air pollution abatement between federal, state, and local governments, see Washington v. General Motors Corp., 406 U.S. 109, 115, 92 S.Ct. 1396, 1398-99, 31 L.Ed.2d 727 (1972); Her Majesty The Queen v. Detroit, 874 F.2d 332, 335-36 (6th Cir.1989), nowhere does the CAA affirmatively grant local governments the independent power to regulate air pollution. Rather, a local legislature's power to regulate in this area is subject not only to the minimum standards of the CAA, but also to limitations placed upon that power by the state. Cf. Wisconsin Pub. Intervenor v. Mortier, --- U.S. ----, ----, 111 S.Ct. 2476, 2483, 115 L.Ed.2d 532 (1991) (the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. Secs. 136-136y, which allows state and local regulation of pesticides, "leaves the allocation of regulatory authority [between the state and the local governments] to the 'absolute discretion' of the States themselves ..."). The CAA does not allow local ordinances to bypass an express limitation placed on local governments by a state. As stated by one court:

[T]he congressional finding that state and local governments should have primary responsibility for...