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Environmental Technology Council v. Sierra Club

ELR Citation: 27 ELR 20295
Nos. 95-2008, -2245, 98 F.3d 774/43 ERC 1353/(4th Cir., 10/15/1996)

The court holds that South Carolina laws that limit the amount of out-of-state waste that may be disposed of in South Carolina violate the Commerce Clause of the U.S. Constitution. One statute requires South Carolina hazardous-waste facilities to reserve space for in-state waste and caps the amount of out-of-state waste that they may accept. Another statute "blacklists" hazardous waste generated in states that prohibit in-state hazardous-waste treatment or that have not entered into interstate or regional treatment agreements. An executive order imposes quota preferences for in-state waste. And a regulation requires a showing of in-state need before the state will grant a permit to establish or expand a hazardous-waste facility. The court first rejects the state's argument that the U.S. Environmental Protection Agency's (EPA's) reasonableness standard for determining whether a state hazardous-waste program is consistent with the federal and other state programs displaces a constitutional dormant Commerce Clause analysis. The court further holds that Congress did not expressly contemplate or authorize violations of the dormant Commerce Clause by states limiting access to their hazardous-waste facilities when it enacted the Resource Conservation and Recovery Act; the Comprehensive Environmental Response, Compensation, and Liability Act; and the Superfund Amendments and Reauthorization Act (SARA). The court rejects the state's argument that SARA's requirement that states adopt hazardous-waste disposal capacity assurance agreements contemplates and requires that South Carolina discriminate against out-of-state waste in order to assure capacity for its in-state waste and to fulfill its interregional agreements.

The court next holds that South Carolina's blacklisting provision, floor for in-state waste, ceiling for out-of-state waste, and quotas for out-of-state and in-state waste facially discriminate against out-of-state waste by refusing admittance into South Carolina of certain waste and giving express preference over South Carolina capacity to in-state waste. The effect of these provisions, if implemented, would also clearly discriminate against out-of-state wastes. In addition, the state pointed to no specific issue of fact as to any potential purpose for discriminating against out-of-state waste. The court holds that the overall limit on in-state disposal is not facially neutral, but rather discriminatory. It is, therefore, subject to the same per se test of invalidity as the other provisions, and fails to survive this scrutiny. The court next applies the per se test to the in-state needs regulation, because the provision in effect guarantees landfill space to in-state generators of waste. The needs regulation does not survive this test for the same reasons that the other laws failed this test, and the state has raised no issue of fact concerning a state rationale for the needs requirement unrelated to the origin of the waste. Finally, the court holds that the district court did not abuse its discretion by declining to refer the lawsuit to EPA under the doctrine of primary jurisdiction. EPA's special expertise is not needed to decide a question of law in a constitutional matter.

[Related cases are digested at 21 ELR 20672 and 21494.]

Counsel for Appellee
Stuart H. Newberger
Crowell & Moring
1001 Pennsylvania Ave. NW, Washington DC 20004
(202) 624-2500

Counsel for Appellants
Charles F. Lettow
Cleary, Gottlieb, Steen & Hamilton
1752 N St. NW, Washington DC 20036
(202) 728-2748

Before MURNAGHAN and MOTZ, Circuit Judges, and YOUNG, Senior United States District Judge for the District of Maryland, sitting by designation.