What Does Brett Kavanaugh Have To Do With Zero Waste?

WHAT DOES BRETT KAVANAUGH HAVE TO DO WITH ZERO WASTE?
In case you have not read or heard enough about Brett Kavanagh
By John D. Moore, NCRA Vice President and Legal Counsel

Before being nominated to the Supreme Court, Brett Kavanagh was a judge of the US Court of Appeals for the DC Circuit. This Court frequently is asked to decide issues involving federal agencies, like EPA. EPA has extensive rules and regulations defining what is “recycling” or “recyclable” as distinct from solid waste. Hazardous waste is simply a subset of solid waste. EPA’s definitions have been used by other Courts in a variety of circumstances. Trust me that these regulations are difficult to follow with exceptions, exceptions to the exceptions, and tables purporting to summarize all these rules that are found in at least 10 places. On the other hand, “Solid waste” has never been defined by the Supreme Court notwithstanding that the Court has long declared solid waste to be an article of commerce for purposes of applying the Commerce Clause of the Constitution to local government actions involving flow control. Since Judge Kavanagh may have opportunity to shape the definitions of recycling and solid was a member of the Supreme Court, it is worth looking at Court decisions he has participated in which EPA’s definitions were challenged. EPA’s remit under the federal Resource Conservation and Recovery Act (RCRA) is to regulate landfill standards and to regulate disposal of hazardous waste. When a collector wants to salvage recyclable material from a hazardous item of waste, such as a foundry sand containing lead, this intersects with EPA’s regulatory oversight. For this purpose EPA has tried to distinguish and define “sham recycling.”

A lot of EPA’s rules were challenged by Industry Groups and the Sierra Club. Judge Kavanagh concurred in the majority (2-1) opinion. It really isn’t possible to summarize this case with any brevity since there were several discreet issues in interpreting interlocking regulations with extensive legislative and regulatory history found in the Federal Register. This cannot be quickly outlined. But there were two aspects of this opinion, API v. EPA 862 F.3d 50 (DC Cir 2017), that I thought reflected on Judge Kavanagh’s suitability to serve on the Supreme Court. One, the majority was able to comprehend an enormous regulatory scheme; and 2) the opinion reflects an understanding that RCRA and EPA regulations are not aimed at “materials that otherwise would become solid waste.”

This first impression relates to “qualification” to serve on the Supreme Court. As we have seen, these “qualifications” are not defined or even commonly understood, let alone uniformly applied. It’s a little like voting for the MVP in professional sport; it’s in the eye of the beholder and reflects the values of the beholder. I have observed in law practice a similar definitional problem. In child custody disputes, the overriding concern is the “best interests of the child.” And who could argue with that? But divorcing parents often have dissimilar views of what this means and their view is often colored by their perception of the other contestant for custody. In a no-fault divorce state like California there is no forum for a divorcing spouse to say why the other spouse is so bad. So that need for emotional outlet gets transferred unfortunately onto a fight over what is best for the child; with ugly results. You could make a good case that the framers of the Constitution intended that the selection of a Supreme Court justice with the “advise and consent of the Senate” be a political process and that the political party with the majority power got to use its own interpretation of qualifications for the office. And if the Senate majority decides that a past sexual assault and lying to the Senate were not disqualifiers, the framers would say “so be it”.

If one likes Judge Kavanagh’s views about distinguishing solid waste from recyclable and that “like” satisfies the “qualification” requirement, this is using a political view to make a political decision. And just like tribal societies in Central Asia, history is a cycle of those who are in and those who are out and where those that are in take what they want without regard to the overall health of the nation. I am sure that the framers did not intend this to happen. Many writers have opined how our country got to this state but few propose a solution to return to democracy and polite discourse in favor of the best interests of the country. When our leaders behave like spoiled children they are not acting in the best interests of the country.

Politics works in different and strange ways. Most blue state voters would agree that Earl Warren was among our greatest Supreme Court justices. But his appointment, having a very California flavor, was as political as any. There were 3 prominent Republican politicians who coveted the Presidency in the early 1950s. One was Warren, a popular 3 term Governor of California (and former Alameda County District Attorney who sought the death penalty), Senator William Knowland of Oakland (and owner of the Tribune then) who was the Senate Majority leader (the Mitch McConnell position) and Vice-President Richard Nixon of Whittier. The popular version of this story is that Knowland and Nixon went to President Eisenhower and asked that Warren be made Chief Justice to get him out of California politics. Many Republicans came to regret that choice and campaigned in the 1960s to have Warren impeached. Through this terribly political process came the one Justice with the skill to insist that Brown v. Board of Education end racial segregation and that the Court so rule unanimously to preempt any question of its legitimacy. Another Justice on that Court was Hugo Black of Mississippi who was a member of the Ku Klux Klan at the same age that Judge Kavanagh was throwing down brewskis. If either Warren or Black’s confirmation hearing resulted in them yelling about Democratic party conspiracies, I am not aware of it and seems unlikely given their temperament.

It’s a scary time. Foreign countries may be influencing our elections by subterfuge, questioning what information and which news broadcaster can you trust. Or maybe they haven’t been and that is part of the subterfuge. And who has the skill to figure that out? This country has weathered many crises. It should have the resilience to withstand Donald Trump and Brett Kavanagh. But maybe Kavanagh will surprise like Earl Warren did. You may not want to see either politics or sausage being made but you can hope the output is palatable.

 

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Boone/Stein v. Alameda County Waste Management Authority

What Happened and Why
By John D. Moore, NCRA Vice President and Legal Counsel, and Alameda County Source Reduction and Recycling Board Environmental Organization Member

Editors note: The opinions expressed in this article are the author’s own and do not reflect the view of NCRA or the Recycling Board.

In 2011, Waste Management (WM) obtained a permit from the City of San Leandro for expanded composting and anaerobic digestion at its Davis Street Transfer Station (DSTS). For California Environmental Quality Act (CEQA) compliance in 2011, San Leandro issued a negative declaration. As part of the 2011 permitting process WM obtained an amendment to the County Integrated Waste Management Plan (CoIWMP) that describes its 2011 plans. In 2017, WM decided it wanted to perform mixed waste composting at DSTS instead of what was approved in 2011. WM needed another amendment to the CoIWMP that described its 2017 plans and needed the Alameda County Waste Management Authority (ACWMA and StopWaste) to approve that amendment. In conjunction with this proposed CoIWMP amendment, the ACWMA was required to consider CEQA again and decide whether or not to require environmental review resulting from the project changes since 2011 and whether these changes posed significant potential adverse environmental impact. Stopwaste found that there had been no changes to the project since 2011 so that no further CEQA review was required. Arthur Boone and Dr. Toni Stein objected to the CEQA determination before the ACWMA, hired private counsel at their own expense and filed suit under CEQA for the ACWMA’s refusal to perform further environmental review.

First, the Court tentatively ruled in favor of Boone and Stein although its tentative ruling did not read like much of an endorsement of their suit. After oral argument the Court changed its mind and ruled in favor of the County and WM. Then, Boone/Stein asked Judge Ronni McLaren to reconsider her ruling, which she did. In Judge McLaren’s reconsidered ruling she again tentatively ruled in favor of Boone/Stein; this time in a more committed fashion. But, after oral argument, Judge McLaren changed her mind yet again and ruled in favor of the County and WM.

Why did Judge McLaren change her mind so much? There is no way to know for sure. At the start of the first hearing Judge McLaren announced that this was the first CEQA case that she had ever decided. That said, it appeared that Judge McLaren spent a lot of time and effort reviewing and considering the law. CEQA has two competing underlying policies: one is for full public transparency and disclosure of potential significant environmental impacts of proposed projects; the other is finality of public agency decisions about the project. CEQA requires the Court to give a lot of deference to public agency fact finding concerning CEQA evaluations. Stopwaste found that there had been no change in the project since 2011. I think Judge McLaren realized that this was just untrue and that the current proposed project never had a full CEQA review, but could not see what potential environmental impacts would result from the project changes that had been raised before the ACWMA. Judge McLaren had to follow the law requiring deference to Stopwaste’s determination of no project changes. The Court’s review was also limited to objections actually made at the agency hearing which focused more on air emissions than zero waste issues. .

Boone and Stein could appeal and argue that Judge McLaren applied the wrong legal standard in her decision. Courts of Appeal likewise give much deference to a trial court’s factual finding, i.e. that the administrative record before the ACWMA did not show potential significant environmental impacts from the changes in the project. Statistically, I think that the odds are very high that Boone/Stein would lose in a court of appeal.

Any other ways to challenge the WM project? WM has a 2011 permit from the City of San Leandro. The DSTS is also bound by a master plan including the site, which was approved by the City of San Leandro in 1998. If the current project violates either of these approvals, a possible challenge exists but a very quick statute of limitations is running on such a challenge.

What sort of further environmental review should have occurred? Recognizing that the project did change from 2011 and that mixed waste composting had not yet been tried in the US, potential environmental impacts of poor quality of output compost and the possible negative impact on source separation are things I think should have been studied. After the ACWMA hearing there was media coverage of the dissatisfaction of several European countries with mixed waste composting because of claimed poor quality of the output. A press release in connection with these reports coined the phrase “Compost-like output” or CLOs when discussing compost made from mixed waste.

Would that have made any difference, if known by the ACWMA? To me that seems unlikely. The ACWMA is a joint powers agency made up of all of the cities within the county plus two sanitary districts that provide for solid waste and recyclables collection. As a political body, its decisions are sometimes made for political reasons and it is possible under CEQA for a public agency to approve a project no matter how bad the disclosed environmental impacts would be. That said, one member of the ACWMA, the City of Oakland, was heavily invested in the approval of the mixed waste composting facility at DSTS because it is part of its franchise agreement with WM. Do I think that a majority of the ACWMA members would have voted to deny approval of a project so important to the largest city within the County? I think that is unlikely. The realistic best outcome would have been to impose some quality requirements in the compost output. WM told the ACWMA that its compost would meet certification requirements of one of the NGOs that certify compost. But this promise is not stated in any of the permits.

In hindsight, NCRA should have appeared at the ACWMA CoIWMP amendment hearing and raised concerns about source separation and compost quality, if only to ask the ACWMA to impose permit conditions relating to these concerns. I feel like in hindsight I should have pushed more in that direction. These concerns might ultimately have convinced Judge McLaren to insist upon more environmental review of the mixed waste processing component. But in the end I think the ACWMA would have approved the project anyway.

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Burn Them, Burn Them All

Burn Them, Burn Them All [1]

By John D. Moore, NCRA Vice President and Legal Counsel, Henn, Etzel & Moore, Inc.

CA Department Of Public Health Enjoined From Enforcing Restriction On Medical Waste Crossing State Lines. Does new ruling impact Al Co drug take back ordinance?

The Commerce Clause of the US Constitution (Art. I, Sec. 8) has an odd relationship to the field of solid waste. In 1978 the US Supreme Court issued its first decision since 1905 that related to garbage and found that solid waste was an “article of commerce” covered by the Commerce Clause [2] .

The Commerce Clause reserves to Congress the right to regulate interstate commerce; the purpose being to preserve a “Union” and guard against state “protectionist” laws. The 1979 case involved a state (New Jersey) passing a law forbidding the importation of solid waste into that state; a law passed because of dwindling landfill space there, a situation then existing in many East Coast states. The Supreme Court struck down the New Jersey law finding that “solid waste” is an “article of commerce” that New Jersey improperly regulated. The Court did not say exactly what about the nature of solid waste makes it an “article of commerce”. [3]

By labeling “solid waste” an article of commerce, the Court later struck down laws where local government commanded that solid waste be disposed of only at a facility directed by the local government. [4] The Court later modified its holding to allow local government to direct solid waste to facilities owned and operated by the local government. [5]

The Commerce Clause was applied to Alameda County’s pharmaceutical take back ordinance, and held constitutional by the Ninth Circuit Court of Appeals. [6] An intrastate limitation on the import of solid waste was held constitutional by the Solano County Superior Court. [7] A state case found that the Commerce Clause did not preclude an exclusive solid waste franchise arrangement in Pleasant Hill, CA. [8]

Last week the Ninth Circuit Court of Appeals struck down a portion of the state of California’s laws, as applied by Cal DPH, regulating the disposal of medical waste, on Commerce Clause grounds. Again, the Court did not examine why medical waste is an “article of commerce” and both it and the parties assumed that it was.

Under California law, medical waste collected within the state must be incinerated, and, if transported out of state, must be “consigned to a permitted medical waste facility in the receiving state. [9]

The plaintiff in the case operated a permitted medical waste transfer station in Fresno, where it received medical waste collected by an affiliated company. Because there was not a permitted medical waste incinerator in California, the plaintiff transported the medical waste first to an incinerator in Maryland. Then, to reduce disposal expenses, the plaintiff began transporting the medical waste to facilities in Kentucky and Indiana for “autoclave” and “thermal deactivation” treatment permitted in those states. Both of these processes involve heating the medical waste; it does not appear that anyone argued that these processes are de facto incineration under state law.

Cal DPH then threatened the plaintiff with fines, taking the position that medical waste shipped out of state still must be incinerated. The only statutory support for this position is when the “receiving state” does not have a permitted facility, in which case the medical waste must be incinerated. (Where that could be is an unresolved question.) But the plaintiff’s medical waste was taken to permitted facilities in Kentucky and Indiana.

Plaintiff filed suit in US District Court and obtained a preliminary injunction against the state, forbidding imposition of penalties or other regulatory action by Cal DPH. The Ninth Circuit affirmed the preliminary injunction stating

“Were it otherwise, California could purport to regulate the use or disposal of any item—product or refuse—everywhere in the country if it had its origin in California. The district court did not abuse its discretion when it determined that Daniels was likely to succeed on the merits and enjoined the Department officials from “enforcing the MWMA against Daniels’s out-of-state waste disposal.”

The Ninth Circuit treated this as a clear case of violating the Commerce Clause, as it considered Alameda County’s pharma ordinance to not impair interstate commerce. The Ninth Circuit did not comment on the difference between the statute requiring out of state treatment of medical waste at a permitted facility and Cal DPH’s interpretation of this statute. From experience I can relate that there often are facts in a case on appeal that the parties deem pertinent, where the Court does not share this view.

Hopefully the technology for safe disposal of medical waste will provide a solution besides incineration, possibly by the field of fungi-based  mycoremediation. Please continue looking to this column to report on new applications of the Commerce Clause to solid waste and recyclable material.

And if you have read all the way to the end, please send me an email at jmoore@recyclelaw so I can tell if these legal articles are worth publishing in the NCRA News.

[1] Game of Thrones quoting the last words of Aegon Targaryen, King of Westeros

[2] Philadelphia v. New Jersey (1978) 437 US 617, 622-623

[3] Indeed, if the California Supreme Court was right in saying that “solid waste” was something valueless that an owner paid to dispose, how could something valueless, like solid waste, be an “article of commerce”. See Waste Management of the Desert v. Palm Springs Recycling Center (1994) 7 Cal.4th 478

[4].C & A Carbone v. Town of Clarkstown (1994),511 U.S. 383

[5] United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 344 (2007)

[6] Pharm. Research & Mfrs. of Am. v. County of Alameda (9 Cir. 2014) 768 F.3d 1037

[7] NCRA v. County of Solano case no. FCS03687 Judgment entered May 30, 2009

[8] Waste Mgmt. of Alameda Cty. Inc. v. Biagini Waste Reduction Sys., Inc. (1988) 63 Cal. App. 4th 1488

[9] Health and Safety Code Section 118000(c)

 

Should This Genie Be Let Out Of The Bottle?

Should electronic signatures be allowed to count to place initiatives on the statwide ballot?

By John Douglas Moore, co-chair NCRA Zero Waste Advocacy Committee

Feedback invited: jmoore@recyclelaw.com

California has a citizen form of government. Its citizens may pass laws (initiatives), strike down laws that have been passed (referenda), and remove from office those lawmakers passing offensive laws. (recall). California also has a recycling-friendly electorate- witness the defeat of the plastic bag business on the two referenda against bag bans in 2016. Closer to home, Alameda County Measure D with its 75% diversion mandate, landfill surcharge, and agency creation (Stopwaste) passed with over 60 % of the vote in 1990.

There is big catch to the idea of placing a statewide initiative on the ballot: To place a statewide initiative on the ballot one must collect 365,880 (5% of the total votes cast in the last gubernatorial election) signatures “personally affixed” by registered voters and witnessed by a “circulator” of the petition collecting the signatures.

Big business can place initiatives and referenda on the ballot because they can pay signature gatherers the market rate per signature, a cost in millions of dollars. Plastic bag makers, waste haulers and landfill owners, and beverage manufacturers and distributors all have the resources to put laws before the voters. In many situations it is all the opponents can do to fight against initiative and referenda, leaving those opponents so tapped of energy and resources that they cannot fight to pass laws they support. Last year’s Proposition 67 battle is a good example. Outspent by many millions of dollars, the recycling community including NCRA and CAW mounted an effective campaign to keep California’s plastic bag ban. But proposing a statewide law itself- say banning disposal of organic material at landfill, or constructing a new bottle bill that works- is too much to contemplate, mainly the required 365,880 signatures. (585,045 signatures to pass a Constitutional amendment).

But what if the signature gathering process was made easier? In the Twitter age is it too arcane to require “wet” signatures witnessed by a circulator. Can’t the internet be used to equalize the strength of opponents as it does it many ways already?

In 2011 a California Court of Appeals held in Ni v. Slocum that an e-signature drawn on a smartphone could not be counted towards the requisite number of votes in a county-wide (San Mateo County) initiative campaign to legalize marijuana. No California appellate court has taken up the issue since. One Utah court decision before Ni and one West Virginia court decision following Ni have held electronic signatures to be adequate for electoral purposes. Each Court examined the Uniform Electronic Transaction Act that was adopted by both states and California that gives e-signatures the same binding effect as wet signatures.

The Court in Ni found that the UETA did not supplant a more specific provision of the state Elections Code that does not provide for e-signatures. The Court also held that the state statutory requirement of a circulator to witness the signature of the registered voter negated the validity of e-signatures obtained on the internet and not through circulators. The Court further pointed out that a law to permit e-signatures to be used on electoral documents was passed by the state Legislature in 1997-98 only to be vetoed by then Governor Pete Wilson. Perhaps it will be technically possible in the future to satisfy the need for a “circulator” of petitions collecting signatures. Since the Ni decision is hostile to the very idea of sanctioning judicially the collection of signatures on the internet, it seems doubtful that a technology change rather than a law change would change the result in Ni. A non-profit, Electronic Signature Records Association and a for-profit technology vendor, Verafirma, are active in this field.

So Zero Waste advocates frustrated with the mills of the Legislature grinding slowly (if ever they grind at all)[1] could focus on legalizing the use of e-signatures to place statewide initiatives. The Legislature could again be convinced to pass such a law with the idea that Governor Brown would not veto it. The issue of permitting e-signatures itself could be made the subject of a statewide initiative. These pathways would require massive energy and time.

Which leads to the question- would this even be a good idea? Making the process to pass new laws easier for positions that one likes also makes it easier for positions one does not like. Look how many votes our current President received. Would letting this genie out of the bottle make for not a citizen government but for a CocaCola Government or a Waste Management government?

The political commentator, Kathleen Moore, says that “Our technology is moving faster than our morality”

I solicit your views.

[1] Henry Wadsworth Longfellow

A Cautionary Tale for California

As I Walked The Streets of Laredo… [1]

By John D. Moore, NCRA Vice President and Legal Counsel, Henn, Etzel & Moore, Inc.

… I saw more plastic bags. That is, after a Texas appellate Court ruled recently that the City of Laredo, Texas, had no power to adopt a local ordinance banning “commercial establishments” from providing customers with single-use plastic bags. Unlike California, the Laredo ordinance did not provide for a ten cent payment to the commercial establishment. Maybe that is why the merchant groups sued. But the reasoning of the Texas court yields a cautionary tale for California.

Laredo, Texas is a home-rule city. In California this is called a “charter” city. Home rule cities are allowed extra latitude in using their police powers and may be limited by the state legislature only when the state intends to preempt local legislation with “unmistakable clarity”. A merchant group[2] sued the City to block enforcement of the bag ban. The City won judgment in its favor at the trial court. The Court of Appeal not only reversed the trial court judgment for the City, it also declared the merchants group to be the winner of the case. The appellate court remanded the case for the trial court only to award attorney fees to the merchants group.

The appellate court focused on whether the state law of solid waste disposal prevented the City from adopting a plastic bag ban. In Texas, a Texas Commission on Environmental Quality promotes regulation much like (in concept if not in practice) CalRecycle in California. The Texas state law has a very specific provision that local government may not adopt an ordinance that “prohibits or restricts” (for solid waste management purposes) the “sale or use of a container or package in a manner not authorized by state law.” There is no indication in the opinion that the state of Texas or its regulator/enforcers actually restricted the sale or use of single use plastic bags.

The appellate court found “unmistakable clarity” that the state law blocked all local ordinances concerning containers or packages. The appellate court reasoned that single use plastic bags were containers or packages with “unmistakable clarity.” This is the opposite of the trial court’s view.

The sponsor of the state law said that the local government preemption provision was intended to be limited to local laws concerning “wasteful packaging, Styrofoam cups, and bottle caps.” The appellate court did not care what the sponsor said. That is partly why legislators should say what they mean. The appellate court’s opinion is entirely based on its reading of the “plain meaning” of the preemption statute.

The Texas preemption statute forbids local regulation of the sale or use of certain materials in a mannernot authorized by state law” i.e. the use is not authorized by the state. It seems to me that if the Laredo law governed the sale or use of the single use plastic bags (used) in a manner authorized by state law, then the strict letter of the preemption statute is not applicable. Or maybe it is open to grammatical debate what was intended.[3] No Texas statute cited detailed how its citizens are to use plastic bags, except presumably not littering them.  From the opinion it seems that this argument was not made.

HERE IS THE CAUTIONARY TALE

California’s statewide plastic bag ban being challenged by referendum presently, SB 270, also contains a preemption provision, prohibiting local governments from enacting more restrictive plastic bag laws. If SB 270 were in force, then cities, including charter cities, in CA, like Laredo, would be barred from adopting more restrictive bans. It is my experience that regulated industry groups will often trade more regulation in exchange for state preemption. I understand that this dynamic cleared the way for SB 270- plus the ten cents/bag provision that helped the grocers which the bag makers are trying to take away in Proposition 65.

[1] If you don’t know the song Streets of Laredo, check out the Johnny Cash version on YouTube. For the musically inclined, think key of G

[2] If funding for the case came from plastic bag makers, the opinion does not reveal this

[3] Like the Second Amendment