ELR Citation: ELR 20847
No(s). 90-1361 (6th Cir. May 1, 1991)

The court holds that 1988 amendments to the Michigan Solid Waste Management Act requiring county approval for disposal of out-of-county waste do not violate the commerce clause of the U.S. Constitution. The court holds that the amendments do not serve an economic protectionist purpose prohibited by the U.S. Supreme Court's decision in City of Philadelphia v. New Jersey, 8 ELR 20540. The amendments place in-county and out-of-county waste in separate categories, but do not treat out-of-county waste from Michigan any differently than waste from other states. The court holds that the amendments do not constitute an outright ban on out-of-state waste and impose only incidental effects on interstate commerce. The court upholds that district court's finding that the Act grants each county discretion in accepting or denying waste importation from any outside source, including other counties within the state. The court holds that the county planning commission's denial of a landfill operator's request for a permit authorizing it to import out-of-state solid waste did not violate the commerce clause. In this case, only one Michigan county, authorized by state statute, has barred importation of solid waste into that county. The court notes that the outcome might be different if all counties in Michigan banned out-of-state waste. Finally, the court holds that no due process violation or unconstitutional taking of the landfill operator's property rights occurred. The landfill operator may still use its landfill; only out-of-county waste is barred. Moreover, the landfill operator did not exhaust its administrative remedies and thus has no basis to allege a constitutional deprivation resulting from the permit denial.

[The district court's decision is published at 20 ELR 21135.]

Counsel for Appellant
Robert A. Fineman
Honigman, Miller, Schwartz & Cohn
660 Woodward, Ste. 2290, First National Bldg., Detroit MI 48226
(313) 256-7800

Counsel for Appellee
Raymond Howd
530 W. Allegan St., 8th Fl., Mason Bldg., P.O. Box 30028, Lansing MI 48913
(517) 373-7540

Before: NORRIS, Circuit Judge; WELLFORD, Senior Circuit Judge^* and FORESTER, District Judge.^**