ELR Citation: ELR 20787
No(s). 92-1642 (8th Cir. Feb 18, 1993)

The court holds that ordinances adopted by two counties requiring all compostable waste generated in the counties to be delivered to a county-owned composting facility violate the Commerce Clause of the U.S. Constitution. The court first holds that the Commerce Clause applies because interstate movement of solid waste is commerce. The court next holds that the ordinances overtly discriminate against interstate commerce. Although out-of-state resource recovery plants can apply for an exemption to the ordinance, no alternate facilities are within reasonable hauling distance of the counties. Thus, the ordinances have the effect of entirely forbidding transport of waste out of the counties. The court holds that the burden on interstate commerce is not incidental because the ordinances remove $312,000 per year in shipping fees from interstate commerce. The court finds that, because the evidence demonstrates that the ordinances are economic protectionist measures, they are per se invalid under the U.S. Supreme Court's ruling in City of Philadelphia v. New Jersey. The court further holds that nothing in the Resource Conservation and Recovery Act authorizes preferential treatment for in-state waste disposal facilities. Last, the court remands the case for further proceedings on the plaintiff waste hauler's 42 U.S.C. §1983 claim.

Counsel for Appellee
Timothy R. Thornton
Briggs & Morgan
2400 IDS Ctr., 80 S. 8th St., Minneapolis MN 55402
(612) 339-0661

Counsel for Appellants
Walter J. Duffy
Faegre & Benson
2200 Norwest Ctr., 90 S. 7th St., Minneapolis MN 55402
(612) 336-3000

Before JOHN R. GIBSON and MAGILL, Circuit Judges, and VAN SICKLE,^* Senior District Judge.