The interstate transport of solid waste was a hot topic for Congressional debate early in the session, but faded from view as other issues stole the spotlight. Two bills were introduced to amend the Solid Waste Disposal Act: S.384 by Senator Kent Conrad (D-ND) and H.R. 942 by Rep. Bob Franks (R-NJ), but neither made it out of committee. The following background information has been reprinted from a Congressional Research Service (CRS) report available on the Committee for the National Institute for the Environment (CNIE) National Library for the Environment web page, which contains additional CRS reports on this and other environmental issues. CRS reports are also available by calling your local representative or senator.
Federal court rulings have also had a profound impact on local waste management programs. In a series of recent cases, including three Supreme Court decisions since 1992, federal courts have held that shipments of waste are protected under the interstate commerce clause of the Constitution. As a result, state and local governments may not prohibit private landfills from accepting waste from out-of-state, nor may they impose fees on waste disposal that discriminate on the basis of origin.
Interstate shipment of waste has become more common in recent years. The reasons include local shortages of disposal capacity, particularly in the Northeast and on the West Coast; a national trend toward larger regional disposal facilities; until recently, differences in landfill standards, which contributed to regional differences in the cost of disposal; and the vertical integration and consolidation of the waste management industry. Vertically integrated firms offer full service waste management, from collection to transfer station to disposal. Increasingly, they ship waste to their own disposal site, even though that may be across a border, rather than dispose of it at an in-state facility owned by a rival. (For a further discussion of these factors, including state-by-state information on exports and imports, see CRS Report 96-712 ENR, Interstate Shipment of Municipal Solid Waste: 1996 Update.)
As a result of increased shipments, states with adequate disposal capacity, or available land, have been groping for ways to limit or prevent it being used for disposal by others. Numerous methods have been tried, including moratoria on the construction of new landfills, fees on the disposal of out-of-state waste, bans on disposal of out-of-area waste, and various planning and capacity assurance requirements. As noted, however, many of these measures have been struck down under the interstate commerce clause of the Constitution, and others may be if and when they are reviewed by courts. (For more information on the Constitutional issues, see CRS Report 91-771 A, State and Local Burdens on Imported Waste: Constitutional Issues.)
While the states may be prevented from regulating interstate commerce, the Constitution (in Article I, Section 8) expressly gives the power to regulate commerce to the Congress. This power can be used directly by the federal government or it can be used to authorize state and local governments to restrict interstate commerce under specified conditions.
The latter approach was the principle behind S. 534, which was reported by the Senate Environment and Public Works Committee April 18, 1995 (S.Rept. 104-52), was passed by the Senate May 16, 1995, and was attached to legislation headed to a House- Senate conference (S. 1959) July 26, 1996. The bill provided authority to Governors, if requested by an affected local government, to restrict new shipments of municipal solid waste from out of state. Facilities that received MSW from out of state in 1993 would have been grandfathered, although the Governor could have limited the amount they accepted to that received in 1993, and in future years could have ratcheted down imports, unless they were governed by host community agreements. The bill also allowed fees of up to $1.00 per ton on imports of MSW, in some cases.
The House Commerce Committee did not act on this issue in the 104th Congress. Its Subcommittee on Commerce, Trade and Hazardous Materials approved an unnumbered committee print, with amendments, May 18, 1995. The leadership of the full committee, however, was less enthusiastic about a bill that had the effect of restraining private enterprise, and never took up the bill. In blocking action, it was supported by exporting states, the private waste management industry, and groups supportive of free market solutions to national problems.
The subcommittee bill (subsequently introduced as H.R. 2323) would have prohibited landfills or incinerators from accepting new shipments of MSW generated outside the state unless the shipments were authorized in a host community agreement with the affected local government. Like the Senate bill, it would have grandfathered most facilities that received out-of-state waste in 1993, and would have provided authority to freeze imports at 1993 levels and to ratchet down the level of future imports in some cases.
There were, however, some key differences in the House and Senate approaches. These included: 1) the role of state and local governments (in the Senate bill, local governments could request the Governor to restrict imports, but could not take action themselves; in the House bill, local governments played the central role, deciding whether or not to allow new interstate waste shipments at local facilities); and 2) the basic structure of the authority (in the House version, a "presumptive ban" on new interstate waste shipments prevents new shipments unless the affected government in the receiving area gives permission; in the Senate bill, new waste shipments are allowed unless the Governor takes action to stop them). These differences have contributed to the congressional stalemate. (For more information on the House and Senate bills, see CRS Report 95-682, Solid Waste Legislation in the 104th Congress: A Comparison.)
Please send any comments or requests for information to the AGI Government Affairs Program at firstname.lastname@example.org.
Contributed by Kasey Shewey White, AGI Government Affairs Program
Last updated December 9, 1998
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