ELR Citation: ELR 20451
No(s). s. 91-35374, -35929 (9th Cir. Jan 15, 1993)

The court holds that a county in the state of Washington violated the Commerce Clause of the U.S. Constitution when it adopted an ordinance barring disposal in the county of medical waste generated outside the county, and the court remands for a determination of whether attorneys fees are warranted under 42 U.S.C. §1988. The court holds that the county failed to establish that medical waste from outside the county is more dangerous than similar waste generated inside the county. Further, the U.S. Supreme Court's decision in Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department of Natural Resources, 22 ELR 20904, precludes the county's claim that out-of-county medical waste is more hazardous simply because it travels more miles. The court also rejects the county's quarantine exception claim, because the county produces local medical waste and the ordinance does not quarantine all medical waste. Finally, the court holds that the district court erroneously decided that litigants who sue successfully under the Commerce Clause may recover damages under 42 U.S.C. §1983 and that attorney fees under 42 U.S.C. §1988 should not apply retroactively. The district court did not determine whether attorney fees would be available under §1988, because it decided that §1988 would not apply at all.

[The district court's decision is published at 21 ELR 21018.]

Counsel for Plaintiffs/Appellees
James R. Moore
Perkins & Coie
1201 Third Ave., Ste. 400, Seattle WA 98101
(206) 583-8888

Counsel for Defendant/Appellant
Paul J. Kundtz
Riddell, Williams, Bullitt & Walkinshaw
1001 4th Ave., Ste. 4400, Seattle WA 98154
(206) 624-3600