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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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