By John Moore, Henn, Etzel and Moore
A semi-monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.
WHAT DOES SAME SEX MARRIAGE HAVE TO DO WITH GARBAGE? (PART II)
For one thing, both subjects have been examined by the Supreme Court in terms of their constitutionality (or lack thereof) under the Fourteenth Amendment. That amendment, ratified as a legacy of the Civil War to equalize the races of Americans, states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The recent Supreme Court case of Obergefell v. Hodges[i], decided with a 5-4 majority, prohibits discrimination against same sex couples in issuing marriage licenses, holds that same sex marriage is one of the “liberties” described in the 14th Amendment.
In 1905 the same Court held that garbage, as described in local ordinances, was not “property”, which the same amendment says cannot be taken without due process. There is no evidence to suggest that the drafters or ratifiers of the 14th Amendment ever considered either same-sex marriage or garbage. In his dissent in Obergefell, Justice Scalia eloquently frames the question that if the constitutional grant of the power to make laws is reserved to the “People”, what the five member majority of the Court did in Obergefell was to override that constitutional power.
When examining existing legal precedent relating to discard management, it is well to remember that 5 votes on the Supreme Court can make or change a law. It is also worth remembering that one person’s perception of a just change is another’s view that the same change is revolutionary.
The framers of the constitution left open to interpretation whether future acts of the republic were to be measured by the truths and values of 1793 or was legal interpretation to evolve with the republic. The fact that the power to make laws was reserved to the People and their elected legislators suggests the former. And since the constitution clearly reserves lawmaking power to the states unless the constitution provides otherwise[ii], an important question is which of those “unreserved powers” is federal in nature and enforceable by federal courts. Many Court decisions today applauded were required to navigate these conundrums.
For example, the 14th amendment does not say there is a federal power to enforce its premise of equal protection of the laws. Southern (former confederate) states long argued successfully that only the states had such enforcement power and they had no interest in enforcing it except in the manner they interpreted the Amendment. In 1873, a Supreme Court of Louisiana decision that a New Orleans exclusive franchise to maintain slaughterhouses was constitutional was upheld by the US Supreme Court on the ground that even if the franchise grant were a 14th Amendment violation, the federal judicial system had no power to enjoin it. [iii]
In another example, the southern states’ concept of “separate but equal” was sanctioned by the Supreme Court because it found that the framers and ratifiers of the 14th Amendment lived in a segregated society and the language of the Amendment does not suggest any intent to change that. The Court’s precedent holding that separate but equal satisfied the 14th Amendment lasted from 1896[iv] to 1954[v]. In those 60 years the 14th Amendment never changed, only the Court’s perception of what was right had changed. The 1954 decision in Brown v. Board of Education was unanimous, unlike the 5-4 majority in Obergefell.
For yet another example, in 1857, a 7-2 majority of the same Court decided that a slave named Dred Scott could not sue in federal court to have his freedom decreed because he was not a citizen of Missouri, but was rather “property” and property could not sue anyone in federal court. This decision, authored by Chief Justice Roger Taney, himself a slaveholder, rested its constitutional justification upon the view that the “People” described in the Constitution and the Declaration of Independence (the same “People identified by Justice Scalia in Obergefell) were intended by the drafters not to include African people or their descendants. Chief Justice Taney also believed that the states were not bound to a permanent union but rather had joined, and could leave, the union as they chose. Opposition to that premise led to the Civil War.
Abraham Lincoln made a revolutionary response to the Dred Scott decision: “If this important decision had been made by unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true, or, if wanting in some of those, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay even revolutionary to not acquiesce in it as precedent.
But when, as it true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country.”
Lincoln’s Secretary of State William Seward expressed this view of Dred Scott more strongly, “Judicial usurpation is more odious and intolerable than any other among manifold practices of tyranny.” There are those who echo this sentiment about Obergfell and many other Court decisions.
Obergefell is an outgrowth of earlier court rulings about marriage rights under the 14th Amendment: In 1965, the Court struck down[vi] a Connecticut law prohibiting married couples from obtaining contraceptives. In 1967, the Court struck down[vii] a Virginia law prohibiting marriage between persons of a different race. For many people today those outcomes are just, and it is all right that the Supreme Court and not the People made those judgments. The Obergefell decision rests partly on the Court’s 1967 ruling in the Virginia case.
So let us examine garbage under the constitution. The Court decided two major cases in 1905, the first in Detriot and the second arising from San Francisco. In Gardner v. Michigan[viii] the Court affirmed a conviction of a man charged criminally with collecting garbage in violation of a Detroit city ordinance. Garbage was defined by the ordinance as: “The word ‘garbage’ shall be held to include every refuse accumulation of animal, fruit or vegetable matter that attends the preparation, use, cooking, dealing in or storing of meat, fish, fowl, food, fruit or vegetables, including dead animals and condemned foods found within the city limits.”
In California Reduction Company v. Sanitary Reduction Works[ix], San Francisco, by charter, provided for the exclusive franchise (which exists still 110 years later) for collection of garbage, which was challenged by a scavenging, would-be-competitor as a 14th amendment violation. While the definition of garbage under the Charter cannot be found in the opinion, the purpose of the Charter was to eliminate the then-prevalent noxious and disease-producing conditions when generators indiscriminately dumped their garbage into the public streets and waterways. The Court was satisfied that the City was justified by public health and safety concerns to pass this Charter.[x]
The Court in the 1905 San Francisco case recited two principles nowhere discussed in the 2015 Obergefell case and are quite inconsistent with the Obergefell outcome:
“…if a regulation, enacted by competent public authority avowedly for the protection of the public health, has a real, substantial relation to that object, the courts will not strike it down upon grounds merely of public policy or expediency.
“the possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order and morals of the community. Even liberty itself, the greatest of all rights, is not an unrestricted license to act according to one’s own will.”
The Court’s viewpoint in the Detroit case that garbage was not property seems to be at odds with views of later Courts, composed of different justices, that: 1) garbage was an article of interstate commerce[xi], (without stating exactly what in the nature of garbage made it an article of commerce) and; 2) Justice Kennedy’s (who authored Obegefell) statement in 1994 [xii] that “what makes garbage a profitable business is not its own worth but the fact that its possessor must pay to get rid of it.”[xiii]
Justice (later Chief Justice) Rehnquist dissented from the holding that garbage is an article of commerce since prior court precedent[xiv] convinced him, “I simply see no way to distinguish solid waste, on the record of this case, from germ-infected rags, diseased meat, and other noxious items.” In other words, the same type of material that was considered “filth” by turn of the 20th century writers; not what can be found in source separated recyclables in 2015.
So what has same sex marriage to do with garbage? Maybe garbage is not an article of commerce. Maybe regulating the collection of garbage is no longer a proper subject of government regulation. If no legislative action is required to command these outcomes, maybe rights under the constitution are more ephemeral than the framers desired. And today’s just resolution of an important issue by the Courts is tomorrow’s tyranny. Just saying.
September 27, Annual Picnic
September 17, Board Meeting
September 28-30, Resource Recycling Conference, Indianapolis
October 15, Board Meeting
November 19, Board Meeting
# # #
[ii] 10th Amendment, US Constitution
[iii] Slaughter-House Cases 16 Wall. 36 (1873)
[iv] Plessy v. Ferguson 163 US 537 (1896)
[v] Brown v. Board of Education 347 US 483(1954)
[vi] Griswold v. Connecticut 381 US 479(1965)
[vii] Loving v. Virginia 388 US 1(1967)
[viii] Gardner v. Michigan 199 US 325 (1905)
[ix] California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306 (1905)
[x] The Court and the cities enacting these laws were influenced by the then-seminal work of “Municipal Sanitation in the United States” by Charles Value Chapin. Chapin describes the need to regulate the disposal of what he called “filth”, which he characterized as “swill, brine, animal urine, stinking noxious liquid, butcher’s offal, and putrid animal or vegetable matter” (see p. 145-150
[xi] Philadelphia v. New Jersey 417 US 617 (1978)
[xii] C & A Carbone v. Town of Clarkstown, 511 U.S. 383 (1994)
[xiv] Asbell v. Kansas 209 U.S. 251 (1908).
NORTHERN CALIFORNIA RECYCLING ASSOCIATION
ZERO WASTE ADVOCACY COMMITTEE
MINUTES OF MONTHLY MEETING, July, 2015
This meeting was held on Wednesday, July 8, 2015 at the offices of John Moore, 1970 Broadway, 9th floor, Oakland. Called for 6 p.m. Call-in number is 510/891-9800.
Present were Chair Boone and committee members Abbe, Connolly, Hoffman, Moore, and Russell; regrets from Brooms (South Lake Tahoe) and Yee (work). The meeting started at 6:12 p.m. Minutes of the June meeting were not discussed. Boone served as secretary.
LEGISLATION: Moore, presenting. Moore as NCRA counsel has drafted position letters on ABs 199, 888, and 1103 for Chair Boone to sign; letters will be held until next board meeting on July 16 to ratify. Each member had a copy of each letter and it was MSV to approve all three as drafted. AB 199 was “support with clarification/amendment;”AB 888 was “support,” and AB1103 was “oppose unless amended.” The most interesting discussion was on AB 1103 where Abbe clarified that the issue of grocery chains backhauling their own organics to central depots for composting could be questioned by this bill and food donations could be left to the mercy of the waste hauler if such language were to be adopted.
SUSTAINABLE RECYCLING CAMPAIGN [SRC], Abbe, presenting. The second prong of this campaign was the third/green cart for all Oakland multi-unit buildings (3500 structures); all buildings now have their carts and collections have begun. Under NCRA’s grant from the EAB, 20% are being served by using McKaughan and JJ Robinson accompanied by sorters from ILWU employed by local sorting firms to interface directly with tenants. Another 20% are being approached by Cascadia hired hands paid by WMX to speak to property managers. The June 20th kick-off in Oakland CD#5 went well for NCRA and the language tie between the sorters and the residents (mucho Espanol) was very positive. After some discussion, it was MSV that all ZWAC members and all NCRA board members should be asked to give one Saturday by the end of June to volunteer to do outreach in Oakland.
OTHER MULTI-UNITS: Jessica Connolly, presenting. She presented in general terms their work at Marin Sanitary Service in setting up four different groups of multi-unit residents and measuring response based on type and nature of their introduction to the program. Others mentioned Lily Kelly’s work reported at RU-20 and the Stopwaste commercial recycling outreach.
NCRA’S APPLICATION FOR STOPWASTE FUNDING ON FOOD WASTE REDUCTION: Abbe, presenting. The team of Moore, Blachman, and Abbe has asked Stopwaste for about $20,000 to more clearly understand the obstacles of food transfers from those holding unwanted foodstuffs to those wanting such materials; this is an outgrowth of our food waste conference last fall. No funding decision yet. Food Shift has completed a study for Santa Clara County on this issue that is now available in draft. Food Shift also has a contract now with Andronico’s to get their unsalable foodstuffs to not-for-profits.
SF GARBAGE TO SOLANO: Abbe, presenting. The City’s decision to grant a negative declaration on an EIR for the transfer of the city’s wasted resources disposal from Altamont to Hay Road/Solano County has now been appealed by an interested party and the SF Bay Chapter has voted to support that appear but not to join the appeal. The SF Group has taken no position. After some discussion, ZWAC decided not to take a position on this issue at this time.
CLOTHING COLLECTION BOXES IN HAYWARD: Alex Hofmann, presenting. After some delays, the city of Hayward has a newly-revised but not yet published draft ordinance on the rights of and controls over clothing collection box operators. Not all of the contents of the draft ordinance are yet public but some are difficult for her firm to accept. After some discussion, it was MSV that Boone would prepare a letter for board consideration on the 16th that would object to unnecessary features known of in the draft ordinance and would be received in Hayward before the draft ordinance is released. Abbe said the City Council had proven itself worthy under the SRC issues and should be entrusted with any benefit of the doubt.
Adjourned at 7:34 p.m.
Next meeting should be on August 12th; location TBD.
Respectfully submitted, Arthur R. Boone, Acting Secretary
So Waste Management Admits Failure At Recycling, But Who’s Really To Blame?
A Critical Review of the Aaron Davis’ June 20 Washington Post Attack on Environmentalists and Real Recyclers – American Recycling Is Stalling And The Big Blue Bin Is One Reason Why
By Daniel Knapp, CEO of Urban Ore, Inc., a Materials Recovery Facility now celebrating its 35th year in Berkeley, California, 7/7/15
Forty-five years after the first Earth Day jump-started recycling, companies like mine, Urban Ore, are one big reason why publicly traded wasting companies like Waste Management are losing market share and profitability. Our secret: we’re small, we’re nimble, and we focus on handling the disposal functions by producing quality resources from the municipal discard supply. In short, we’re just the opposite of the flawed recycling systems that are bringing down giants like Waste Management, Inc. When last counted, in 2004, there were about 56,000 of us, chipping away at the big waste companies’ market share. Eleven years later, there are probably more of us, and we’ve grown.
Meanwhile, the wasting giants have made some big bad bets, then pursued them with bullheaded efficiency, egged on by their corporate boardrooms. Big money is the driver in these transactions, not recycling markets. They bet that throwing investor money at highly automated but extremely dirty collection and sorting systems would best allow them to pursue their dreams of market domination. It worked for a while, but now we’re told it wasn’t sustainable. Aaron Davis of the Washington Post reports that at the highest levels of Waste Management, they appear to be giving up. He likes to reduce their key technology to “the big blue box,” but more experienced people know it as “single-stream.”
Single-stream’s essence is to combine all residential recyclables, mix them thoroughly, then try to separate them using automated systems developed for simpler feedstocks by the mining industry. Single-stream is notorious among real recyclers and perceptive environmentalists alike, many of whom not only saw through the industrial strategy from the first, but correctly forecast the outcomes now coming to pass.
Despite overwhelming evidence to the contrary, Aaron Davis blames environmentalists in general, and California environmentalists in particular, for Waste Management’s failures to make single-stream recycling profitable. He appears to have gotten most of his ideas from the Waste Management people he interviewed. But he didn’t talk to the competition at all, so what did he expect to hear but the backpedaling and evasiveness that he got? And why did the editorial staff of The Washington Post let him get this misinformation and disinformation into print?
The following quotes about single-stream’s failures show that Mr. Davis was wrong to blame environmentalists for the collapse of Waste Management’s recycling businesses. I’m indebted to environmentalist Lynne Pledger of Massachusetts Clean Water Action for most of these quotes, which she put out four years ago, in 2011 in a paper entitled
Concerns With Single Stream Recycling Collection (pdf).
Also, all bolds are mine. If you want to get to the gist of this refutation, read only the boldface in what follows.
Since Mr. Davis singles out California in his hit piece, let’s start with California environmentalist and recycling activist Portia Sinnott. She’s currently Editor of the monthly newsletter of the Northern California Recycling Association. She has been a NCRA Director for decades and served as its President for several years. More recently she has presided over a series of meetings called The Zero Waste Brain Trust that drew working recyclers from all over the state. One big takeaway from these meetings, Portia said two years ago, was that “…a growing number of waste professionals think the current design of MRFs — Material Recovery Facilities — are creating more garbage rather than less.”
The critique of single-stream goes back many years. As early as 2002, St. Paul, Minnesota’s Eureka Recycling study of competing collection and processing methods said that single-stream systems, “with high residual rates, expensive processing, and the lower quality in materials, …presents concerns…. The cost advantages and efficiencies of single-stream…disappear the more closely one looks at the later stages of the recycling process.” This was printed thirteen years ago in Resource Recycling, November 2002, one of several magazines that cover the recycling industry.
Just two weeks ago, Tim Brownell and Bryan Ukena, the current co-managers of Eureka Recycling, posted the following response to Mr. Davis’ thesis that waste companies are not to blame for their failed systems: “How dare WMI, Republic (formerly BFI) and the other largest garbage/landfilling companies in North America play victim to Single Stream recycling (?) Almost 15 years ago they began the steady march away from collecting recycling in separated streams, which allowed for the highest value and most environmental benefit from the materials. They claimed Single Stream systems were the future to recovering the most materials and to being the most efficient and environmentally effective programs possible for communities all across the country. It also happened to work well in their compacting garbage trucks. In Minnesota, due to these companies’ “vision” and influence, over 80% of all materials are now collected and processed in this manner. And NOW they have the gall to say the system is broken. ‘Not enough Profits’ is their mantra.” “Looking back 15 years ago we heard a very similar story from the multinational garbage companies as they purchased all of the local recycling companies, stating that recycling wasn’t working, and that they needed to raise fees for services by 40%.”
The big waste companies’ preference for single-stream undercut the finances of the companies that use recycled feedstocks. Clarissa Morawski wrote an influential report on single-stream for the Container Recycling Institute in 2009 that concluded “...the cost savings for a municipality from single-stream collection show up as cost increases for the processors and remanufacturers. The contaminants are thrown away by the paper mills. So, an item such as a plastic bottle that was recyclable when it was placed at the curb becomes trash by the time it is sorted out as a contaminant by the paper mill.”
In the same vein, Sacia and Simmons, writing in the TAPPI Journal, stated that “…Increased equipment wear, due primarily to glass and other abrasive contaminants, has increased maintenance costs (for paper makers) more than 300%. Pulper rejects, which are landfilled and consist primarily of plastics, tin, glass, and aluminum, have increased 800%. Other fiber-related costs have increased by 740%.”
These are business-busting numbers, and they came out nine years ago. But Waste Management and the other big wasting companies went ahead with single-stream anyway. Ideology triumphed over practicality.
What’s a self-respecting government to do? The Department of Ecology (pdf) of the State of Washington recommended in 2010 that local governments “switch the focus from collection to recovery…. Diverting materials from the garbage can to the point of collection when those materials end up disposed at a processor or remanufacturer…is not recycling or diversion,” they said. Many other governments agreed.
Manufacturers complained, too. In 2011, the Environmental Paper Network (pdf) asked its member companies to devote more time and energy to “…resolving the challenges created by single-stream collection programs that drive up the cost of recovered paper fiber and increase contamination.”
That same year, Lynne Pledger of Massachusetts Clean Water Action (pdf) wrote that single-stream was distorting markets worldwide. “Paper collected in a single-stream system is marketed to low-value uses like paperboard, much of which goes to overseas mills, rather than high-quality uses like fine printing and writing paper. This is having an adverse effect on domestic (paper) mills…and making it harder for those who want to purchase recycled paper to find it. (Also), …the container stream is contaminated with paper…. Overseas markets will accept contaminated material more readily than domestic markets, so that when world markets are robust there is less concern in the US about high-quality recyclables. But when markets go down which happens cyclically, it is the cleanest materials that find a home. Single-stream materials are excluded or marketed at a significant loss.”
Single-stream is only one of several wasting industry technologies now causing trouble for big waste companies’ sunk assets. In 2010, I wrote in a piece for the newsletter of the Northern California Recycling Association (NCRA) about…a sad list of waste company versions of “recycling” such as garbage composting, dirty MRFing, single-stream collection, and Alternative Daily Cover, or ADC, that systematically waste materials that could easily be conserved and used. From an operations perspective, they all look like greenwashing to my jaundiced but experienced eye. Garbage in, garbage out.”
NCRA is on the worldwide web, along with several other big recycling-related NGOs such as the Berkeley Ecology Center and Eureka Recycling. Mr. Davis could have found a veritable symphony of these kinds of statements among real, feet on the ground recyclers had he bothered to look. But he didn’t, instead only quoting Patty Moore, a respected California consultant (and long-time NCRA member) closely associated with the plastics industry. Why would only Patty Moore get to stand in for tens of thousands of recyclers and environmentalists?
Maybe because plastics are so hard to recycle effectively. In their July 2015 newsletter, The Container Recycling Institute reproduced an interesting article from the Winona, Minnesota Daily News about a study being done there by longtime recycling and environmental activist Ann Morse. The study was designed to find out just what people are mistakenly putting into the big blue bins in that rural county. More than 200 large samples were collected, their contents sorted and weighed. It turns out that the biggest Blue Bin contaminant by weight (and certainly by volume as well) is….unrecyclable plastics! Here’s the quote: “Nonrecyclable plastic was by far the largest contributor to the garbage bin, which slowly filled with things like pencil cases, plastic cups, chip bags, newspaper bags and grocery bags. While some bags are made of recyclable plastic, ordinary recycling facilities can’t handle them, Morse explained, so they should only be recycled in special collection areas in stores. Whenever recyclables are placed in a plastic bag, the whole bag is discarded as waste, which defeats the purpose of recycling in the first place. Paper bags, on the other hand, can be recycled along with their recyclable contents.”
So I would say Waste Management has itself, and to some extent the plastics industry, to blame for its recycling failures. Not consumers. Not environmentalists. Not working recyclers. Just them.
For residents of Washington DC, I’d say you’re getting half-truths at best from your beloved local newspaper, at least when it comes to recycling.
For those of us working to make that Zero Waste future happen – no burn, no bury, WMI’s failure is clearly an opportunity. That’s because we perform the same task of legal disposal for unwanted goods, but we do it better and more profitably because we focus on quality production from start to finish.
We don’t like to mix unlikes. We like order better than disorder when it comes to materials handling. We think that system designs that degrade materials unnecessarily should be replaced by systems designed by people who understand how to use source separation to produce high quality resources and jobs.
This transition to a true Zero Waste future is job #1 for the new millennium, in my opinion.