Soap and Detergent Association v. Akron: Some Legal Difficulties in Local Efforts to Control Pollution

The Soap and Detergent Association, a trade association for detergent manufacturers, recently filed a suit against the city of Akron, Ohio, Soap and Detergent Association v. Akron, 1 ELR Dig. [159], claiming that a recently passed city ordinance banning the sale of detergents containing more than a specified [1 ELR 10044] amount of phosphates (a) purports to operate in a field, water pollution, which has been pre-empted by the state government, (b) conflicts with Ohio's general laws, (c) exceeds the authority granted to the city by the Ohio Constitution since it does not relate directly to the health and welfare of the city's residents, (d) will be ineffective for its avowed purpose, imposing burdens on the city's population which outweigh the benefits to them, (e) dereogates from the city's common law duty to accept in its sewer system all ordinary household wastes, (f) imposes an unacceptable burden on interstate commerce in violation of the Constitution of the United States, and (g) violates the constitutional guarantees of equal protection by singling out detergent manufacturers among numerous sources of phosphate pollution. Many of these same issues are likely to appear in one form or another in challenges to other local regulations as municipalities react to public pressure for tough anti-pollution measures.

State pre-emption

It appears likely that Soap and Detergent Association will ultimately be resolved in favor of the Association on the ground that Ohio has pre-empted the field of water pollution control by enacting the Ohio Water Pollution Control Act, Ohio Rev. Code §§ 6111.01-6111.99. The law on state pre-emption varies widely from jurisdiction to jurisdiction, but the Ohio courts have generally taken a rather restrictive view of the powers of local governments where there is a question of whether the state has occupied the field. E.g., West Jefferson v. Robinson, 1 Ohio St. 2d 113, 205 N.E.2d 382 (1965); Neil House Hotel Co. v. Columbus, 144 Ohio St. 248, 58 N.E.2d 665 (1944); see Vaubel, Municipal Corporations and Police Power in Ohio, 29 Ohio St. L.J. 29 (1968).

The grant of local home rule to Ohio cities is on its face quite broad.Article XVIII, Section 3 of the Ohio Constitution gives municipalities "authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws." The question presented by the case is whether Akron's ordinance is "in conflict with general laws."

Initially, the court will have to decide whether an ordinance limiting the sale of phosphate detergents invades the field governed by the Ohio Water Pollution Control Act. The answer to this question is not clear. The purpose of the Akron ordinance is certainly associated with controlling water pollution. But the means adopted, regulation of the sale of detergents, is far removed from the mechanisms of the state law. If the court does find that the ordinance lies within the field occupied by the statute, it must then decide whether there is a "conflict" between the two.Certainly no "direct conflict" exists in the sense that it would be impossible to comply with the provisions of both the state and the city law. Some state courts, however, including those of Ohio, have held that where a state legislature has restricted certain kinds of conduct, municipalities are barred from prohibiting conduct within the "field" which the state law allows. Wholesale Laundry Board of Trade v. City of New York, 17 A.D. 2d 327, 234 N.Y.S.2d 862, aff'd, 12 N.Y.2d 998, 239 N.Y.S.2d 128, 189 N.E.2d 623 (1962), Schneiderman v. Sesanstein, 121 Ohio St. 80, 86, 167 N.E. 158, 160 (1929). Other states have held, however, that a local ordinance which is simply more restrictive than a state law governing the same matter is valid in view of the policy favoring local autonomy which underlies home rule. E.g., In re Hoffman, 155 Cal. 114, 99 P. 517 (1909). Some state courts have gone out of their way to sustain regulatory action taken by home rule cities under their police powers. E.g., Nelson v. Seattle, 64 Wash. 2d 862, 395 P.2d 82 (1964). If decentralized government and local self-determination are policies to be favored, it would seem to make sense to uphold the municipal ordinance unless it is clear that the state legislature intended to occupy the field. See In re Hubbard, 62 Cal. 2d 119, 396 P.2d 809, 41 Cal. Rptr. 393 (1964); cf. Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963).¹

The police power

The argument that the primary benefits of the ordinance will accrue to the Cuyahoga River and its riparian owners outside of the territorial limits of the city is interesting, but seems likely to fail. Courts have struck down city ordinances which imposed burdens on persons or property outside the city on the grounds that those persons were unrepresented in the city's political processes, e.g. Malone v. Williams, 118 Tenn. 390, 103 S.W. 798 (1907), but this is not always the rule. E.g. Walworth v. Elkhorn, 27 Wis. 2d 30, 133 N.W.2d 257 (1965); Schlientz v. North Platte, 172 Nev. 477, 110 N.W.2d 58 (1961). And it would seem that where a city's action confers direct benefits on non-residents, the city should be free to act. It is well within the traditional concept of legislative competence that a city council might determine that its own constituents will derive sufficient indirect benefits (through use of the river, or civic satisfaction in efforts to improve the environment) to make bearing the burdens worthwhile. The question of whether the benefits are sufficient to justify the burdens would seem to be primarily a legislative judgment in which the courts should not interfere.

[1 ELR 10045]

Interstate commerce

The interstate commerce issue raised by the suit is almost certain to be litigated with increasing frequency in situations where large manufacturers find themselves barred from local markets by antipollution regulations. The present state of the law applicable to the Soap and Detergent Association case with regard to the commerce clause is less than crystal clear. The Supreme Court has held that Congress' power to regulate interstate commerce carries with it an implied prohibition of state or local laws which impose undue burdens on interstate commerce, even in areas where Congress has not acted. Cooley v. Board of Wardens, 53 U.S. (12 How.) 299 (1851); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). What constitutes and "undue burden", however, is a somewhat complicated question.

The Akron ordinance does not discriminate against interstate commerce — it applies equally to detergents manufactured in Ohio or in California. Cf. Milk Control Board v. Eisenberg Farm Products, 306 U.S. 346 (1939); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935). The real problem, the Association contends, is that permitting this ordinance to stand would foster a maze of unrationalized, often conflicting standards which would make massproduction of detergents for interstate markets almost impossible. In evaluating this contention it is interesting to note the Court's statement in Huron Portland Cement Co. v. Detroit, 362 U.S. 440 (1960). There the Detroit Smoke Abatement Code was challenged as it applied to the petitioner's ships on the grounds that Congress had pre-empted the field of regulation of marine boilers, and that the regulation as applied tothe Cement Company would impose an undue burden on interstate commerce. The Court dismissed the second claim in two paragraphs. Justice Stewart's opinion noted: "[W]hile the appellant argues that other local governments might impose differing requirements as to air pollution, it has pointed to none. The record contains nothing to suggest the existence of any such competing or conflicting local regulations." 362 U.S. at 448. On its face this statement would appear to mean that arguments against local pollution control regulations based on the commerce clause are doomed to failure unless the manufacturer can show actual conflict. This raises the undesirable possibility that the first such ordinance passed might survive constitutional challenge (there being no "conflicting" ordinances) but that later ones would be vulnerable to attack. And what sort of "conflict" is necessary? If local regulations of detergent sales (and note that the complaint in Soap and Detergent Association alleges none other than the Akron ordinance complained of) consist merely of an upper limit on the phosphate content, would this really raise an insuperable barrier to the interstate marketing of detergents; or could not the detergent makers simply meet the lowest such limit in the area serviced by each manufacturing plant? On the other hand, the Court might retreat from Justice Stewart's statement in Huron Portland Cement if it appeared that the result of many local limits on phosphates was that one city, which happened to set its limit the lowest, was able to control the phosphate content of detergents sold in a large part of the country.

One possible answer to the commerce clause problem is that the burden placed on interstate commerce by Akron's ordinance is simply too small to justify an interference with the city's exercise of its police powers for the benefit of its own citizenry. It is worth considering whether Akron could not simply ban detergents altogether, just as it might legally ban the sale of explosives as inimical to the health and welfare of its residents. If the commerce clause would not prevent a complete prohibition of the sale of detergents, it would hardly seem to prevent the imposition of restrictions on their sale.

Equal protection

The equal protection argument poses a substantial threat to local efforts to control pollution. The Association argues in effect that any anti-pollution measure must be part of a broad attack on the problem as a whole, or it will discriminate unconstitutionally by singling out one type or source of pollution. Many localities would find it nearly impossible to attack the problem of air or water pollution all at once but would prefer a piecemeal approach which enables them to deal with the problem in more manageable portions. At least one court has found this approach acceptable. Boulevard Co. v. Heller, 27 N.Y.S.2d 212 (1970), appeal dismissed, 39 U.S.L.W. 3420 (U.S., Mar. 29, 1971).

None of the questions raised by this case are really novel, but this may be the first time many of them have arisen in an environmental context. It remains to be seen whether they will be resolved in such a manner that state and local governments are not faced with constitutional lawsuits each time they seek to enact a new pollution-control measure. It appears likely, however, that the Ohio courts will decide this case on the rather narrow grounds of state pre-emption, leaving the other questions open.

Court Opinions, the full texts of which are printed in this issue

Bass Anglers Sportsman Society v. U.S. Plywood-Champion Papers, Inc., C.A. No. 70-H-1004 (S.D.Tex. Feb. 10, 1971), 1 ELR 20143.

Action under the Refuse Act by conservation groups for injunctive and mandatory relief and for a portion [1 ELR 10046] of any fine levied is dismissed. Qui tam actions are allowed only where statutory authority for them is express or can be implied. The Rivers and Harbors Act of 1899 does not expressly authorize qui tam actions. Furthermore, § 411 of the act by necessary implication bars qui tam actions, because a criminal conviction is required before an informer is entitled to receive a share of any fine imposed. Hence a right to such an action cannot be implied. The doctrine of sovereign immunity bars action against the two governmental defendants, because plaintiffs have not made material allegations that these governmental officers have exceeded their authority or that their authority is invalid.

Environmental Defense Fund, Inc. v. Corps of Engineers of the United States Army, No. LR-70-C-203 (E.D.Ark. Nov. 16, Dec. 22, 1970, Jan. 21, Feb. 19, 1971), 1 ELR 20130. See discussion above, 1 ELR 10040.

Ohio v. Wyandotte Chemical Corp. No. 41, Orig. (U.S. March 23, 1971), 1 ELR 20124. See discussion above, 1 ELR 10038.

Reuss v. Moss-American, Inc., Nos. 70-C-485 and 70-C-486 (E.D.Wisc. Feb. 23, 1971), 1 ELR 20129.

Defendants' motions for dismissal granted in two consolidated qui tam actions in which plaintiff was attempting to recover half of any fines levied against defendants for violations of the Refuse Act. Citing Bass Anglers Sportsman Society v. U.S. Plywood-Champion Papers, Inc., 1 ELR 20143 (S.D.Tex. Feb. 10, 1971), Bass Anglers Sportsman Society v. United States Steel, 1 ELR 20101 (N.D., M.D. and S.D.Ala. Feb. 8, 1970) and Durning v. ITT Rayonier Inc., 1 ELR 20040 (W.D.Wash. Oct. 5, 1970) the court held that an action qui tam lies only where expressly or implicitly authorized by statute, and the Refuse Act does not provide such authorization.

Udall v. Federal Power Commission, 387 U.S. 428, 1 ERC 1069 (1967), 1 ELR 20117.

The Federal Power Commission's 1964 decision to grant licenses to a private power consortium for the development of hydroelectric power projects at High Mountain Sheep on the Snake River is reversed, because issues regarding whether the federal government, rather than the private sector, should develop these water resources had not been adequately evaluated by the FPC, as required by § 7(b) of the Federal Water Power Act of 1920, 16 U.S.C. § 800(b). The applicants did not introduce evidence addressed to the advisability of federal development, and the FPC by its rulings on the Secretary of Interior's application to intervene made it impossible for the FPC to have the informed judgment which § 7(b) requires. Under § 10(a) of the Federal Water Power Act, the FPC must protect recreational river uses. Section 2 of the Anadromous Fish Act of 1965, 16 U.S.C. § 757 et seq., gives the Secretary of the Interior a special mandate to appear, intervene and introduce evidence on proposed river development programs. The project's impact on wildlife must also be evaluated. Lastly, the urgency of the project was not fully explored, especially in view of the probable future development of other energy sources. The determinative test is whether the project will be in the public interest, which requires that all relevant issues be explored.

Administrative determinations, the full text of which are printed in this issue

Presiding Examiner's Initial Decision on Remand in Pacific Northwest Power, Project No. 2243, and Washington Public Power Supply System, Project No. 2273, Before the Federal Power Commission (February 23, 1971), 1 ELR 30017.

This decision on remand from the Supreme Court [Udall v. FPC, 387 U.S. 428, 1 ELR 20117 (1967)] is the latest in a series of judicial and administrative reviews of proposals for hydroelectric power development on the Snake River in the Pacific Northwest. In his decision the Presiding Examiner reviews three alternative power development proposals for the Snake River in the vicinity of High Mountain Sheep and concludes that applicants should be licensed to build the Pleasant Valley-Mountain Sheep project, but that the license should be conditioned so as to bar construction and preserve the status quo until September 11, 1975, pending a decision by the Departments of Interior and Agriculture, and by Congress, on the suitability of the Snake River for inclusion in the National Wild and Scenic Rivers System under the Wild and Scenic Rivers Act of 1968, 16 U.S.C. § 1276(d). The decision considers in detail the alternative projects proposed, the projected power demands of the Pacific Northwest and resources available to meet them, and the economic feasibility of the three basic proposals. It also provides a detailed evaluation of the environmental impact of the proposed developments and of irreversible resource commitments, as required by the Federal Power Act, FPC Order No. 415, and Udall v. FPC, supra.

[1 ELR 10047]

Reasons Underlying the Registration Decisions Concerning Products Containing DDT, 2, 4, 5-T, Aldrin and Dieldrin, Before the Environmental Protection Agency (March 18, 1971), 1 ELR 30028.

In applying statutory tests under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. §§ 135-135k, to determine whether a particular product shall be registered intially, or should continue to be registered, an intricate balance must be struck between the benefits of its use and dangers to the public health and welfare resulting from its use. Once registered, a product may be either cancelled or suspended, and the burden of proof of establishing the product's safety and effectiveness remains with the registrant from initial registration throughout the period of registration. Whenever a registrant fails to discharge this burden, the issuance of a notice of cancellation is appropriate. EDF v. Ruckelshaus, 1 ELR 20059 (D.C. Cir. 1971). The standard for immediate suspensions of registrations under FIFRA is "imminent hazard to the public." Suspension will occur "when the evidence is sufficient to show that continued registration of an economic poison poses a significant threat of danger to health, or otherwise creates a hazardous situation to the public, that should be corrected immediately to prevent serious injury, and which cannot be permitted to continue during the pendency of administrative proceedings," i.e., cancellation proceedings. An imminent hazard may be found to exist at any time; actual injury need not have occurred; injury or potential injury to plants and animals alone may be sufficient.

Standards and criteria both for cancellation and suspension and for setting pesticide tolerances on foodstuffs must be articulated on a case-by-case basis, because it is impracticable at the present time to state meaningful general principles applicable in all cases. Nevertheless, certain general factual and policy variables are stated.

With respect to the presently existing registrations of DDT, 2, 4, 5-T, aldrin and dieldrin, the Agency has taken the following actions: (1) DDT cancellation notices for all registrations were issued in January, 1971. Suspension is not presently warranted, because of DDT's widespread beneficial uses, its low toxicity, the likelihood that sudden, drastic curtailment of use would cause the application of even more toxic pesticides, its declining use, and the weight of scientific evidence on its effects. (2) All remaining registrations of aldrin and dieldrin have been issued cancellation notices; however, they will not be suspended, because (a) use has declined, (b) use is primarily by insertion in the ground (reducing environmental mobility) and (c) residues are low. (3) No change in the administrative handling of 4, 5, 5-T is necessary at present, since cancellation proceedings are in progress and since the most harmful registrations have been suspended.

1. For an excellent general discussion of the policies involved in state pre-emption, see Michelman and Sandalow, Materials on Government in Urban Areas, 376-401 (1970).