ELR Citation: ELR 21512
No(s). 92-2427 (6th Cir. Sep 22, 1993)

The court holds that the Clean Air Act (CAA) does not preempt Michigan Solid Waste Management Act (MSWMA) §299.430(4)'s express limitation on the authority of local communities to restrict the location of a waste-to-energy solid waste incinerator, and, therefore, that §299.430(4) preempts a town's local ordinance that effectively prevents the construction within the town of a waste-to-energy facility. The court first holds that the CAA does not preempt §299.430(4). Although the CAA envisions a joint approach to air pollution abatement between federal, state, and local governments, it does not affirmatively grant local governments the independent authority to regulate air pollution or to bypass with local ordinances express limitations placed on local governments by a state. Because §299.430(4) remains controlling, it preempts the town's local ordinance. Case law supports §299.430(4)'s preemptive authority over the local regulations of solid waste disposal facilities. The court also holds that MSWMA §299.430(4) is not preempted by §336.36(1) of the Michigan Air Pollution Act (MAPA).

Although MSWMA §299.422a(3) transfers solid waste incinerator permitting authority to the MAPA, it does not relieve local governments of MSWMA §299.430(4)'s preemptive limitation. Moreover, §299.430(4)'s express limitation on local power is more specific than MAPA §336.36(1)'s allowance of local regulation of air pollution, and Michigan law requires that where two statutes conflict, the more specific of the two prevails.

Counsel for Plaintiff
Marty Bernstein
Seyburn, Kahn & Ginn
2000 Town Ctr., 15th Fl., Southfield MI 48075
(313) 353-7620

Counsel for Defendant
Hugh Thomas
Berry, Morrman, King & Hudson
600 Woodbridge Pl., Detroit MI 48226
(313) 567-1000

Before: MARTIN and SUHRHEINRICH, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.