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October 2003

Waste Association Declares New Michigan Ordinance Unconstitutional

Wayne County, MI— The National Solid Wastes Management Association, together with Republic Services of Michigan, LLC, filed a complaint against Wayne County Executive Robert A. Ficano and Wayne County regarding a recently enacted Wayne County ordinance explicitly aimed at impeding the disposal of out-of-state and Canadian- generated municipal waste in Wayne County landfills. The lawsuit, filed in the United States District Court for the Eastern District of Michigan, challenges the ordinance because it violates a number of key provisions of the United States Constitution.

The ordinance says no landfill in Wayne County can receive waste generated from any jurisdiction outside the county that does not have a beverage container deposit law consistent with that currently in effect in Michigan. Under the new ordinance, landfill operators would be subject to substantial fines of up to $10,000 per day, as well as potential imprisonment, for violations.

The lawsuit challenges the new ordinance because it allegedly violates a host of important constitutional principles, including:

• The Commerce Clause of the U.S. Constitution, which authorizes Congress to “regulate commerce with foreign nations and among the states.”

• Foreign Commerce Clause, which restricts protectionist policies and restrains states and local government bodies from excessive interference in foreign affairs.

• The Foreign Affairs Power, which gives powers to only the federal government, not local or state governments, to deal with international trade issues.

• Due process rights of Wayne County landfill operators.

“We regret the need to seek relief through the courts, however, we must act to protect our members’ constitutional rights,” said Bruce Parker, President. “The Framers of the Constitution adopted the Commerce Clause to encourage commerce among the states and with foreign nations. The Wayne County ordinance is in clear contradiction to this principle. The Commerce Clause is based on the notion that state and local governments cannot restrict interstate or international commerce, and promotes an open and competitive national marketplace — principles that have served the nation well for over 200 years.”

A federal Court of Appeals recently struck down a Wisconsin law similar to the Wayne County ordinance. The court rejected this law based on several of the same constitutional principles advanced in the lawsuit against Wayne County by NSWMA and Republic Services.

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