ELR Citation: ELR 20621
No(s). 89-761-B (M.D. La. Jul 9, 1991)

The court holds that Louisiana statutes banning the import of hazardous waste from foreign countries violate the Commerce Clause of the U.S. Constitution. A waste treatment and disposal company notified the U.S. Environmental Protection Agency (EPA) that it intended to receive hazardous waste from Mexico for disposal at a site in Louisiana. EPA then advised the waste disposal company that since Louisiana was an authorized state under the Resource Conservation and Recovery Act (RCRA), notification was due to Louisiana, not EPA. Thereafter, the Louisiana Department of Environmental Quality (LDEQ), relying on state laws prohibiting the importation of foreign hazardous waste for disposal, refused to grant the waste disposal company a permit.

The court first holds that the state statutes prohibiting the importation of foreign hazardous waste unconstitutionally burden interstate commerce, regardless of their validity and effectiveness under RCRA. Although certain hazardous wastes may not be legitimate subjects of trade and commerce deserving protection, the U.S. Supreme Court has ruled that hazardous waste is an object of commerce and subject to the Commerce Clause. Moreover, the court notes that there is no distinction between the type of hazardous waste already being transported into and disposed of in Louisiana from other states and the hazardous waste sought to be imported from Mexico. The court next holds that the sufficiency of Mexican laws to ensure that the waste generated in Mexico will not cause health hazards in Louisiana is irrelevant, because Louisiana's statutes create an irrebuttable presumption concerning the sufficiency of other nation's environmental laws. Thus, the Louisiana prohibition is based solely on the origin of the hazardous waste, rather than on the specific type of hazardous waste. The Louisiana Legislature's attempt to limit the scope and constitutional impact of the statutes' prohibitions by applying the restriction only to hazardous waste imported "directly" into the state from a foreign country is insufficient to avoid constitutional infirmity. The effect of the statute is to restrict the flow of commerce from Texas to Louisiana, which implicates interstate commerce because the Texas environmental laws concerning transportation apply whether the waste is properly categorized as directly or indirectly imported. The court next holds that the state statutes prohibiting the import of foreign hazardous waste are discriminatory on their face. The state ban is not based on the type of hazardous waste and allows for no exceptions. Further, the LDEQ is not empowered to consider whether the transporter and the in-state facility are subject to enforceable environmental standards, regardless of the waste's point of origin. Finally, the court holds that the state statutes constitute economic protectionism and violate the Foreign Commerce Clause of the Constitution. While the state's program has been authorized under RCRA, EPA approval does not constitute a declaration that the state's program is constitutional or that such approval is binding on the courts; nor does it preclude the courts from determining the constitutionality of statutes.

Counsel for Plaintiff

Gerald L. Walter, Anne J. Crochet
Schwab & Walter
10636 Linkwood Ct., Baton Rouge LA 70810
(504) 767-1460

Counsel for Defendant

John B. King, Ann Coco
Louisiana Department of Environmental Quality
P.O. Box 44096, Baton Rouge LA 70804
(504) 342-1265