Chemical Waste Management, Inc. v. Templet

No. 91-3693 (5th Cir. August 10, 1992)

The court upholds a district court ruling that Louisiana statutes banning the import of hazardous waste from foreign countries violate the Commerce Clause of the U.S. Constitution. The court holds that it must affirm the district court's decision in light of the U.S. Supreme Court's 1992 decision in Chemical Waste Management, Inc. v. Hunt, 22 ELR 20909, which held that the Commerce Clause prohibits Alabama from exacting a greater hazardous waste disposal tax for hazardous materials generated outside Alabama than it does for those generated in-state. The court also holds that the U.S. Environmental Protection Agency's authorization of Louisiana's hazardous waste program as a replacement for federal minimum standards is not tantamount to a valid exercise of Congress' commerce power. Congress may permit states to legislate in derogation of interstate commerce only with an unmistakably clear expression of approval.

[The district court's decision is published at 22 ELR 20621.]

Counsel for Plaintiff-Appellee
Gerald Walter
Schwab & Walter
10636 Linkwood Ct., Baton Rouge LA 70810
(504) 767-1460

Counsel for Defendant-Appellant
Meredith Lieux
Legal Division
P.O. Box 82282, Baton Rouge LA 70884
(504) 765-0236

Before REAVLEY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

[22 ELR 21531]

REAVLEY, Circuit Judge:

Louisiana prohibits the importation, storage, treatment, and disposal on Louisiana soil of hazardous wastes that are generated in foreign nations. LA.REV.STAT.ANN. §§ 30:2190-91 (West 1989). The district court declared that these statutes are unconstitutional intrusions on Congress' dormant commerce power. Chemical Waste Management, Inc. v. Templet, 770 F. Supp. 1142, 1153 (M.D.La.1991). The Supreme Court recently held that the Commerce Clause prohibits Alabama from exacting a greater hazardous-waste-disposal tax for hazardous materials generated outside Alabama than it does for those generated in-state despite Maine v. Taylor, 477 U.S. 131, 106 S. Ct. 2440, 91 L. Ed. 2d 110 (1986), and the quarantine cases cited by appellant Louisiana in its appeal of this case. Chemical Waste Management, Inc. v. Hunt, U.S. , , 112 S. Ct. 2009, 2016-17, 119 L. Ed. 2d 121 (1992). So we must affirm the district court's decision unless Louisiana presents an argument that was inapplicable to Hunt's facts and prevents operation of the dormant Commerce Clause.

Louisiana argues that Congress, through the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. (RCRA), and the Environmental Protection [22 ELR 21532] Agency, authorized Louisiana's entire hazardous waste program as a satisfactory replacement for the federal minimum standards, thus rendering the challenged statutes an exercise of Congress' commerce power rather than an affront to it. But we may only find that Congress has permitted states to legislate in derogation of interstate commerce upon an "unmistakably clear . . . expression of approval by Congress." South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 91-92, 104 S. Ct. 2237, 2242-43, 81 L. Ed. 2d 71 (1984). The Fourth Circuit has held that South Carolina failed to present evidence "indicat[ing] an unmistakably clear congressional intent to permit states to burden interstate commerce" in the RCRA. Hazardous Waste Treatment Council v. South Carolina, 945 F.2d 781, 792 (4th Cir. 1991). Nor does Louisiana present any such evidence in this case. In fact, the RCRA could be read to prohibit state hazardous-waste legislation that burdens interstate commerce. See RCRA, 42 U.S.C. § 6926(b) (state hazardous-waste programs must be "consistent with the Federal or State programs applicable in other States"); H.R.REP No. 1491, 94th Cong., 2d Sess. 30 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6268 ("general purpose of having federal minimum standards for hazardous waste disposal, with the option of state implementation of state programs equivalent to the federal program, is (1) it provides uniformity among the states as to how hazardous wastes are regulated . . .").

AFFIRMED.