When Toronto City Council decided not to finalize con- tracts with Rail*Cycle*North (proponents of the Adams Mine project) last fall, the only realistic alternative was to export Toronto’s waste to landfill sites in the State of Michigan. While it appears as though an increasing amount of municipal waste will make the trip to Michigan in the future, there are also increasing signs that the export of Toronto’s waste will not be as simple a proposition as was initially assumed.
Michigan has attempted to regulate the import of waste from other states and Canada in the past. However, in the 1992 case of Fort Gratiot Sanitary Landfill v. Michigan Department of Natural Resources, the U.S. Supreme Court found that provisions of the Michigan Solid Waste Management Act were not enforceable.
The reason for this finding was that the U.S. Constitution contains a “Commerce Clause” that reserves the regulation of commerce between states and with foreign countries to the U.S. Congress alone. However, there have been ongoing efforts since 1992 to create legislation that would allow states like Michigan to regulate waste imports.
A number of other states also have significant issues with respect to waste imports. For example, the State of Virginia receives substantial amounts of waste from New York City and has made attempts to legislate waste import. (See this column in the April/May 2000 edition.)
The impact of the Toronto waste decision was not limited to the city or to the Province of Ontario. The decision gained significant notoriety in Michigan. (See “Garbage Train Derailed” in the December/January 2001 edition.) But efforts have been underway for sometime. The November report to the Michigan Solid Waste Importation Task Force to Governor John Engler is a case in point. The report reviewed the history of the issue and the various positions of stakeholders as well as the Michigan Department of Environmental Quality (MDEQ).
What is quite clear from this report is that the department and the governor’s staff have made, and continue to make, efforts to promote the development of federal legislation that would allow state bodies to regulate waste imports. With respect to stakeholders, county and local governments strongly support the need for federal legislation, as do environmentalists who see the continued growth of waste imports into Michigan as detrimental to their natural environment. The report states that representatives of the commercial solid waste industry do not support the enactment of federal controls, because such restrictions could bring about higher local disposal costs and less service options. Given the cost to construct and operate modern landfills, the Michigan waste management industry is apparently quite concerned about how such regulation might hinder competition and profitability in the sector.
Following the Toronto decision, a war of words erupted between Toronto Mayor Mel Lastman and Governor Engler. Governor Engler complained that Michigan was becoming a dumping ground for Toronto’s waste while Mayor Lastman eventually sent a letter of complaint to President George W. Bush. What is most notable about the attention that the issue received from political leaders (aside from the absurdity of the mayor writing to the U.S. President) is that the matter is receiving significant press in both Michigan and Ontario. Despite the attention, positions have not changed in either camp. While the dispute continues to simmer between Mayor Lastman and Governor Engler (one MDEQ staffer was quoted as saying, “I guess there could be more correspondence, but I forgot who owes who a letter”), other activities are under way that are likely to have some impact on this debate.
There are currently three specific regulatory initiatives that could have an impact on the import of waste into Michigan. The first is an initiative of the Canadian Government to regulate non-hazardous waste exports. In preparation for a new regulatory regime, Ottawa has cited the Basel Convention, a 1992 international treaty that governs the transboundary movement and disposal of hazardous waste, as the justification for federal regulation of transboundary waste movement. While it is not clear what new federal regulations will require, some industry representatives have taken the position that Canada is the only country in the world applying the Basel Convention rules to non-hazardous waste from households and businesses.
The second initiative is one being undertaken by the State of Michigan. Michigan’s “bottle bill” regulates recycling of bottles and cans on deposit within Michigan. A recent bill, proposed by State Senator Ken DeBeaussaert, would require imports to meet the same content rules as waste generated within the state. As Toronto’s waste stream currently contains more bottles and cans than would be permitted under the Michigan legislation, the intended impact would be for Toronto’s waste to be effectively banned.
Finally, and most importantly, in Washington, D.C., the proposed Solid Waste Interstate Transportation Act could limit the amount of out-of-state municipal solid waste allowed to be imported. The legislation has been referred to the Committee on Energy and Commerce. At press time, a second bill had been introduced in the U.S. House of Representatives that would allow all states to prohibit any waste imports.
While it is difficult to gauge what is the real possibility that any one of these proposed regulatory instruments could become law, there is no doubt that there will be an increasing amount of attention paid to waste imports by American states and Canadian exports. Whether or not Mayor Lastman, Governor Engler or President Bush are weighing into the transborder waste debate, the matter is far from being resolved.