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Perspectives on Interstate and International Shipments of Municipal Solid Waste.
Subcommittee on Environment and Hazardous Materials
The Honorable Mike Rogers
Chairman Gillmor, Ranking Member Pallone, and Subcommittee Members, I appreciate the opportunity to testify today on the issue of municipal solid waste and its treatment by federal and state governments. I understand it has been several years since a congressional committee has taken a close look at what is an increasing problem for state governments - handling the often large volume of trash imports coming across their borders. Mr. Chairman, as you and your subcommittee colleagues are aware, I have introduced bipartisan legislation this session designed to give states the tools to address the tidal wave of foreign trash crashing against their borders. First, I will describe the problems associated with the increase in foreign waste imports in the State of Michigan. Second, I will describe attempts by state officials to combat those problems. Third, I will discuss H.R. 1927, legislation I have sponsored to give states the authority to prohibit or restrict the importation of foreign municipal waste consistent with judicial and constitutional precedent. Lastly, I will discuss the international law implications of my proposal. I. THE PROBLEM IN MICHIGAN A. Dramatic Increase in Importation of Canadian Municipal Waste Michigan's importation of municipal waste from Canada has been a growing problem in my state for a number of years as the amount of trash imported from Canada increases almost exponentially. In 1999, more than two million cubic yards of foreign municipal waste was imported to the State of Michigan from our Canadian neighbors. Last year, that number grew to 4.2 million cubic yards - an increase of 80 percent. Today, nearly 45 percent of the municipal waste imported to Michigan originates in Canada. The situation is especially acute in a number of the counties I represent in Michigan's Eighth Congressional District. For example, 100 percent of Genessee County's municipal waste imports come from Canada, as do nearly all of Washtenaw County's imports, and garbage imported to Oakland County accounts for almost half of its imported waste. Michigan's ability to meet its own landfall disposal needs is seriously compromised by the dramatic increase in Canadian municipal waste imports. Based on current usage statistics, it is estimated that Michigan holds capacity for 15-17 years of disposal in its landfills. However, with the dramatic increase in the importation of municipal waste, Michigan's current capacity could be filled in less than 10 years. While Michigan has done an excellent job planning for its waste disposal needs, our neighbors in the Canadian Province of Ontario have not. Ontario's waste shipments to Michigan and other states are growing as the Toronto area closes its two remaining landfills. At the beginning of 1999, Toronto area municipalities were managing about 2.8 million tons of waste annually, of which about 350,000 tons were shipped to Michigan. However, according to the Congressional Research Service, by 2003, there will be virtually no local disposal capacity. Barring unforeseen developments, most of this waste is expected to be sent to Michigan for disposal. B. Environmental Impact of Increased Waste Importation In addition to rapidly depleting the State of Michigan's landfill capacity, a number of environmental concerns are implicated by Canadian municipal waste imports. One, Canadian trash does not have to meet the same environmental requirements imposed upon municipal waste created within Michigan's own borders. In fact, the Public Interest Research Group in Michigan filed a lawsuit against the City of Toronto for sending municipal waste to Michigan that was contaminated with PCB's, which subsequently leaked into our groundwater supply. Two, Michigan is the only state in the Union to have a ten-cent deposit on many beverage containers. Michigan has placed a high priority on recycling and in turn, these items are noticeably absent from many of Michigan's landfills. However, landfills that accept Canadian municipal waste may have significant amounts of these items that would have been recycled in Michigan. In short, Michigan's recycling efforts are being undermined. Three, with Michigan's landfill disposal capacity rapidly dwindling due to increased foreign imports, action will be needed to address the state's future disposal needs. Siting new landfills requires significant green space that would otherwise not have to be developed. At a time when many in Congress, and in our state legislatures, are attempting to preserve green spaces and rural areas, siting new landfills to accommodate foreign waste is completely contrary to that goal. Lastly, in addition to the problems associated with creating more landfills, such as leakage into groundwater, noise pollution, and foul odors, the increased importation of waste creates indirect problems. One concern often voiced by my constituents and other Michigan citizens is the heavy truck traffic associated with increased Canadian imports. In fact, the Mayor of Windsor, Ontario has publicly stated his concern over the damage the large volume of garbage trucks are doing to his region's highway infrastructure. Led by Governor John Engler and the Michigan Department of Environmental Quality, we have done a good job of planning a long-term, environmental strategy for waste disposal in Michigan. However, disposing of another nation's waste was not a part of that plan. In fact, without action in the United States Congress, policymakers in states like Michigan are essentially unable to plan accordingly. C. Other States Evidence is growing that other states are not immune from the problems of foreign municipal waste imports. Fifteen percent of New York and Washington states' imports originate in Canada. Furthermore Mr. Chairman, your home State of Ohio receives imports from the Virgin Islands, while New Mexico and Texas receive municipal waste imports from Mexico. I do not testify today to sound an alarm, but the fact is that other states are anticipating similar problems with respect to trash importation. The fear is that should Michigan's efforts to restrict foreign trash imports succeed, states such as Pennsylvania could be next. Pennsylvania, like Michigan, has kept costs for waste disposal fairly low. It is exactly those states with sound planning and low disposal costs that the Province of Ontario finds so appealing. As stated earlier, whether the result of poor municipal planning or simply a "not in my backyard" position, the City of Toronto is not taking necessary action to meet its municipal waste disposal demands. I believe that states that have acted responsibly in planning for waste disposal should not be forced to have such planning upended by a foreign body, which is why Congress should give the States some flexibility in controlling foreign waste imports. II. LEGISLATIVE ACTION A. State Attempts to Address International Waste Issues Mr. Chairman, like yourself and many of our congressional colleagues, I had the honor of serving in the state legislature prior to my service in Congress. During my service in the Michigan Senate, we recognized the problems associated with the influx of foreign and out-of-state municipal waste and sought numerous legislative solutions. For example, Michigan adopted legislation that allowed individual counties to make their landfills off-limits to municipal waste from other states or nations. Unfortunately, as you will likely hear from Michigan's Director of Environmental Quality on the next panel, this legislation was ruled unconstitutional by the courts. In striking down Michigan's law, the courts followed the landmark City of Philadelphia v. New Jersey decision in which the Supreme Court struck down a New Jersey statute prohibiting the importation of most out-of-state waste. While efforts continue under Michigan's capitol dome in Lansing to restrict Canadian municipal waste, these efforts will be extremely difficult without support from Washington, D.C. For example, Michigan State Senator Ken DeBeaussaert has sponsored legislation to ban beverage containers in Michigan landfills. As described earlier, Michigan has a very successful deposit program on beverage containers and the state's enactment of such legislation would provide a significant hurdle for Canadian trash imports to meet. Though the feasibility of this legislation deserves further debate, its pursuit clearly demonstrates the desire of state policymakers to regulate foreign municipal waste and gain some amount of control over waste flowing across their borders. As a former state senator, I understand that Michigan and other state governments know what is best for their citizens when it comes to trash imports, but are unequipped to deal with the problem absent congressional action. Under H.R. 1927, the Solid Waste International Transportation Act, if a state chooses to import trash from Canada or any nation, they certainly have that choice. And if the individuals elected to represent our constituents in various state legislatures want to restrict or limit the influx of foreign waste, my legislation allows them that option as well. The bottom line is empowering states to make their own decisions. III. H.R. 1927, the Solid Waste International Transportation Act A. Legislative Intent and Constitutional Concerns As states have attempted to regulate waste imports, the federal courts have declared these state restrictions unconstitutional. If states are to have such authority, congressional action is required. Given these constitutional difficulties faced by state legislatures and governors in addressing foreign waste, I introduced H.R. 1927, which gives states the authority to prohibit or restrict the importation of foreign trash or waste consistent with judicial and constitutional precedent. This bipartisan legislation amends the Solid Waste Disposal Act to provide the necessary express statutory command with respect to foreign municipal waste. As discussed earlier, the 1978 City of Philadelphia v. New Jersey decision struck down a state statute that prohibited the importation of most out-of-state municipal waste partially on the basis that the Federal Solid Waste Disposal Act, had "no clear and manifest purpose of Congress to pre-empt the entire field of interstate waste, either by express statutory command, or by implicit legislative design." The Solid Waste International Transportation Act amends existing federal law to provide that express statutory command. Additionally, in Northeast Bancopr v. Board of Governors of the Federal Reserve System the Supreme Court said "when Congress so chooses, state actions which it plainly authorizes are invulnerable to constitutional attack under the Commerce Clause." H.R. 1927 would be a plain authorization of a state's authority to prohibit or limit incoming foreign municipal waste. B. International Legal Concerns In the debate amongst the varying approaches to solving the international and interstate waste issue, much is made of international trade agreements implicated by allowing state governments the authority to regulate foreign municipal waste. I welcome the opportunity to address this issue. At the onset it is crucial to note that there is no existing legal precedent explicitly prohibiting the aim of H.R. 1927 - giving states the authority to limit or prohibit the importation of foreign waste. The fact is that without congressional action, our states will never even have the opportunity to tackle the issue in a manner consistent with international trade law. For example, numerous commentators claim the North America Free Trade Agreement (NAFTA) proscribes Congress from granting states the authority provided under H.R. 1927. I respectfully disagree. First, it is clear that nothing in my legislation violates the principles of NAFTA as it only gives the states an opportunity to regulate foreign waste. The ball is then in the state's court - so to speak - in that it provides states the opportunity to craft reasonable limits consistent with international law. Under Article 2101 of NAFTA, which incorporates the General Exceptions of the General Agreement on Tariffs and Trade (GATT) Article XX and its interpretive notes, the United States, a State, or locality can place environmental-based restrictions on trade if "necessary to protect human, animal or plant life, or health." Once Congress grants states the authority under H.R. 1927 consistent with our Constitution, the states would have an opportunity to approve legislation consistent with the NAFTA exception. For example, if a state decides to forbid disposal within its borders of any municipal waste containing PCBs because of the environmental hazards associated with its contamination of groundwater, I would strenuously argue that such a state law would pass international muster based on the recognized environmental health exception. We should not simply foreclose the option for the states to make innovative policy and legal arguments based on their state's individual needs. It is possible some states' arguments won't meet international law scrutiny and will be shot down, but it is just as likely some will survive. The irrefutable fact is that this is an area of unsettled law and there is no reason Congress should not give the states a chance to define that law and legislate in the best interests of their constituents within the environmental health exception to NAFTA. In addition to environmental measures, another murky area of international law is the definitional treatment of solid municipal waste. For example, I have been advised by international and domestic legal counselors that for NAFTA provisions to apply, the item in question must be defined as a "good." While some may claim municipal waste is a good, the issue remains unsettled, and states would have the ability to argue that the distinctive characteristics of municipal waste do not rise to the level of a "good." A good is something that upon trade, value can be added to or derived from. By definition, foreign solid municipal waste is only coming into a state for disposal. This is very different from all other types of waste, such as hazardous or industrial-grade waste, which must be processed. C. Legislative Environment As I stated during my introductory remarks, I am very pleased that for the first time in several years, Congress is showing a willingness to tackle the trash issue head-on. The fact that the Subcommittee has three different proposals before it today underscores the urgency for congressional action. While my legislation only addresses the issue of foreign municipal waste, I am certainly cognizant of the ever-present difficulties surrounding the treatment of interstate waste. In fact, I applaud the efforts of my colleagues to address that difficult issue and have joined as a cosponsor to Congressman Greenwood's legislation, H.R. 1213, to give states and municipalities more control over interstate waste. However, given the sensitive political and policy implications of interstate waste, I believe Congress may be more successful in coming to agreement on the foreign waste issue. H.R. 1927 attempts to peal off a small, but significant, part of giving states more control over the flow of waste into their borders. Again, I thank the Subcommittee for the opportunity to testify and would welcome any questions.
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