Environmental Litigation

is the recycling of all materials back into nature or the marketplace in a manner that protects human health and the environment.




The Politics of Waste: Legislative efforts by states to control waste imports, appear more designed to invite litigation and placate the public, than to affectively address waste imports. SEE: June 29, 1999: Va. Laws On Imports Of Trash Blocked Judge, PA DEP Update. Once again, a federal court throws out poorly conceived anti-waste import legislation. Observers may question why the Virginia legislature passed a law that could not, even remotely, stand up to judicial review. This case bolsters the argument that only 'disposal bans' can effectively stop waste imports. Read decision here.

Misinterpretation of Federal Court Decisions - What the Courts Really Said About Controlling Waste Imports:

Federal court decisions have been misinterpreted by most political leaders, particularly the governors of waste importing states to justify inaction in the area of controlling waste imports and exports. Their claim is that, in the absence of Congressional action, any effort by states to control waste imports and exports would violate the Interstate Commerce Clause of the Constitution. They cite City of Philadelphia v. New Jersey, Supreme Court, 437 U.S. 617 (1978) as their main cause for inaction.

In fact, City of Philadelphia v. New Jersey was decided primarily on the grounds of 'discrimination' and 'protectionism.' Specifically, the Supreme Court ruled against New Jersey on the grounds that the state passed legislation that discriminated against out-of-state waste in order to protect New Jersey's landfill space for its own use. The Court stated that its decision does not preclude a state from protecting its environment. Therefore, a state may reduce its waste stream and also protect its environment through mechanisms, such as Waste Disposal Bans, as long as these mechanisms are applied in a non-discriminatory manner.

"And it may be assumed as well that New Jersey may pursue those ends by slowing the flow of all waste into the State's remaining landfills, even though interstate commerce may incidentally be affected. But whatever New Jersey's ultimate purpose, it may not be accomplished by discriminating against [437 U.S. 617, 627] articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently. Both on its face and in its plain effect, ch. 363 violates this principle of nondiscrimination."

In a related case, National Solid Waste Association v. Meyer (representing Wisconsin), Federal Court of Appeal, 7th Circuit: Nos. 94-4006, 95-1058 (Aug 1995), the court clearly suggests that states could protect their environment through the use of disposal bans, although the court did not use the specific term ‘disposal ban.’

"The solid waste legislation itself makes clear that there is an available, less discriminatory alternative that could serve the State's purpose just as well as the re- requirement that the entire community follow the dictates of Wisconsin's plan. Specifically, the Wisconsin statute makes clear that, if the waste is processed by a materials recovery facility that separates the eleven listed materials, the waste will conform to the environmental needs of Wisconsin. Accordingly, Wisconsin could realize its goals of conserving landfill space and protecting the environment by mandating that all waste entering the State first be treated at a materials recovery facility with the capacity to effect this separation. Given the existence of such a nondiscriminatory alternative that serves adequately Wisconsin's legitimate concerns, the discriminatory legislation cannot be justified."


Interestingly, Chief Justice Rehnquist, considered a staunch conservative, gave the dissenting opinion, stated in City of Philadelphia v. New Jersey that waste is not a commodity and should not receive protection under the Commerce Clause.

"In my opinion, these cases are dispositive of the present one. Under them, New Jersey may require germ-infected rags or diseased meat to be disposed of as best as possible within the State, but at the same time prohibit the importation of such items for disposal at the facilities that are set up within New Jersey for disposal of such material generated within the State. The physical fact of life that New Jersey must somehow dispose of its own noxious items does not mean that it must serve as a depository for those of every other State. Similarly, New Jersey should be free under our past precedents to prohibit the importation of solid waste because of the health and safety problems that such waste poses to its citizens. The fact that New Jersey continues to, and indeed must continue to, dispose of its own solid waste does not mean that New Jersey may not prohibit the importation of even more solid waste into the State. I simply see no way to distinguish solid waste, on the record of this case, from germ infected rags, diseased meat, and other noxious items."

For more information on - Disposal Bans and Waste Imports


    • CEMENT KILNS: 9/4/99 The Sierra Club has filed a lawsuit aimed at cutting the amount of harmful chemicals spewed into the air by the 110 cement kilns operating in the U.S. The suit against the U.S. Environmental Protection Agency says although cement kilns are among America's worst polluters, the federal government has done little to control the pollution they discharge. Sierra Club has asked a federal appeals court to force the EPA to place stricter limits on the kilns' emissions. Current EPA standards allow the kilns to continue emitting tons of toxic pollutants, and do not reduce mercury and dioxin emissions.
    • Washington Post. Jan.16, 2000: The Supreme Court "sends a powerful message that citizens affected by pollution can go to court to stop that pollution and that, once there, they don't lose their standing easily. The case dealt with a wastewater treatment plant that had been dumping pollutants into the North Tyger River in South Carolina."
    • ENVIRONMENTAL DEFENSE FUND AND "NEPA": May 1993 - In a decision with worldwide implications, a Federal court has agreed with EDF that the National Environmental Policy Act (NEPA) applies in Antarctica. NEPA requires Federal agencies to prepare an environmental impact statement (EIS) before starting a project that may significantly affect the environment.

SLAPP - Strategic Lawsuits Against Public Participation