Despite concern about the export of increasing quantities of non-hazardous solid waste from Ontario to Michigan, discussions to date about “flow control” — a jurisdiction’s directing where waste is sent for disposal — have largely been hypothetical. State attempts to impose flow control legislation or regulations have been constrained by the U.S. Constitution.
Michigan is currently crafting a way around this, at least as regards the Canada-U.S. border.
What is known as the “dormant” commerce clause of the U.S. Constitution has been interpreted by the U.S. Supreme Court as meaning that states may not place an “undue burden” on interstate commerce. While waste may not be the first thing that comes to mind when considering interstate commerce, the movement of millions of tonnes of municipal solid waste each year is an enormous commercial enterprise. As such, state attempts to control waste imports are restricted by the dormant commerce clause.
Two categories of state regulation have been found by the U.S. Supreme Court to qualify as creating an “undue burden.” They are: (1) regulation that is, on its face, discriminatory against out-of-state commerce; and (2) regulation that may have a legitimate purpose and does not discriminate against out-of-state commerce, but nonetheless imposes a burden on commerce that is “clearly excessive” compared to its benefit.
Courts have found that these two categories of state regulation, when applied to interstate and international waste movement, are discriminatory and pose an “undue burden.” Consequently, such regulation by a state is beyond the state regulatory power in the eyes of the Supreme Court.
Powers of the U.S. Congress
As was noted in my April/May 2002 column on this subject, Congress has the constitutional authority to allow a state to pass legislation which would otherwise be in violation of the Constitution’s dormant commerce clause, including flow control. But this has always seemed distant and unlikely.
That has now changed in a very real way.
A piece of proposed legislation entitled the International Solid Waste Importation and Management Act of 2005 is winding its way through the legislative process in Congress. Having been passed by the Sub-Committee on Environmental and Hazardous Materials, the bill (at press time) was on its way to the House Energy and Commerce Committee where it was reported by some insiders as facing essentially no opposition. Should it be passed by the House Energy and Commerce Committee, it would move on to the House of Representatives where it could, according to some, be passed.
Reasons for its potential passage by the House include a perceived political need for some area of agreement between the Democrats and Republicans, whose horns are otherwise locked horns on most issues. Additionally, the import of waste from Canada is an issue upon which few U.S. politicians are likely to expend political capital (when influence is needed in other areas). Moreover, reports from industry stakeholders south of the border are that the Canadian Embassy, when approached to assist in this matter, responded in that most forceful of ways … by writing a letter.
Should it be passed by the House of Representatives, the bill will then have to be approved by the Senate. An industry source contacted for the writing of this article indicated it’s difficult to predict Senate will treat the bill. Both senators from the State of Michigan are Democrats. Banning Canadian waste imports into Michigan is a popular local issue (John Kerry campaigned on the issue in the last presidential election), so the two Democratic senators will likely be in favour of the legislation.
No one can predict whether the International Solid Waste Importation and Management Act of 2005 will pass. But if it does, states such as Michigan will be able to regulate and significantly restrict the flow of waste across the border, perhaps completely.
Given that Ontario currently exports approximately three million tonnes of the 10 or so million tonnes of solid waste it generates annually (mostly to Michigan), any border restrictions could have a dire impact. Even if other states accept the waste, it will have to travel further and therefore be more expensive to dispose.
Policymakers could ignore the border issue in the past, but inattention now would be wilful blindness. We’re all in for a rude awakening should the politicians in Washington permit state governments to take waste import matters into their own hands.
Adam Chamberlain is a certified specialist in environmental law with Aird & Berlis in Toronto, Ontario. Contact Adam at firstname.lastname@example.org