toxic waste

In 1973 Congress enacted the Endangered Species Act to protect species of animals against threats to their continuing existence caused by man. In 1978 the Fish and Wildlife Service and National Marine Fisheries Service issued a joint regulation interpreting section 7(a)(2) to require federal agencies to consult with the Secretary of the Interior on actions taken in foreign nations. In 1986 the Secretary promulgated a revised regulation that limited the consultation obligation to actions within the United States or on the high seas. Shortly after the 1986 regulation took effect, Defenders of Wildlife and other environmental organizations filed suit in the United States District Court for the District of Minnesota against the Secretary of the Interior. The complaint sought a declaratory judgment that the regulation was invalid as to its geographic scope and an injunction requiring the Secretary to promulgate a new regulation mandating consultation for foreign projects. The complaint alleged that the absence of consultation would increase the rate of extinction of endangered and threatened species. The complaint further alleged that some of the organizations' members observed these species both domestically and abroad. Respondents supported their allegations with affidavits from two members. Joyce Kelly stated that she had traveled to Egypt in 1986, observed the habitat of the endangered Nile crocodile, and intended to return. Kelly further stated that she would suffer harm from the United States role in the rehabilitation of the Aswan High Dam. Amy Skilbred stated that she had traveled to Sri Lanka in 1981, observed the habitat of endangered species including the Asian elephant and leopard at the site of the Mahaweli project funded by the Agency for International Development, and intended to return. Skilbred admitted she had no current plans to return because of a civil war. The District Court dismissed the complaint for lack of standing. The Court of Appeals for the Eighth Circuit reversed. On remand the District Court denied the Secretary's motion for summary judgment on standing. The District Court granted respondents' motion for summary judgment on the merits and enjoined the Secretary from applying the regulation to foreign countries. The Eighth Circuit affirmed. The Supreme Court granted certiorari.

Laidlaw Environmental Services acquired a hazardous waste incinerator facility in Roebuck, South Carolina in 1986 that included a wastewater treatment plant. Shortly thereafter, it obtained an NPDES permit effective January 1, 1987 authorizing limited discharges of pollutants including mercury into the North Tyger River. Laidlaw repeatedly exceeded the permit limits, violating the mercury discharge limit on 489 occasions between 1987 and 1995. On April 10, 1992, Friends of the Earth and Citizens Local Environmental Action Network sent Laidlaw a 60-day notice letter of their intent to file a citizen suit under the Clean Water Act. On June 9, 1992, the South Carolina Department of Health and Environmental Control reached a settlement with Laidlaw requiring payment of a $100,000 civil penalty. On June 12, 1992, FOE filed its federal citizen suit seeking declaratory and injunctive relief plus civil penalties. After a bench trial the District Court found the violations, imposed a $405,800 penalty, awarded litigation costs to FOE, and denied injunctive relief because Laidlaw had achieved substantial compliance since August 1992. The Fourth Circuit assumed without deciding that FOE initially had standing but held that the case had become moot because civil penalties payable to the government would not redress any injury FOE had suffered. The Supreme Court granted certiorari; after the Fourth Circuit decision but before argument the entire Roebuck facility was permanently closed, dismantled, and placed for sale with all discharges permanently ceased.

Located in central New York, Oneida and Herkimer Counties span over 2,600 square miles and are home to about 306,000 residents. Traditionally, each city, town, or village within the Counties has been responsible for disposing of its own waste. Many had relied on local landfills, some in a more environmentally responsible fashion than others. By the 1980’s, the Counties confronted what they could credibly call a solid waste crisis. Many local landfills were operating without permits and in violation of state regulations. Sixteen were ordered to close and remediate the surrounding environment, costing the public tens of millions of dollars. These environmental problems culminated in a federal clean-up action against a landfill in Oneida County; the defendants in that case named over 600 local businesses and several municipalities and school districts as third-party defendants. The crisis extended beyond health and safety concerns. The Counties had an uneasy relationship with local waste management companies, enduring price fixing, pervasive overcharging, and the influence of organized crime. Dramatic price hikes were not uncommon: In 1986, for example, a county contractor doubled its waste disposal rate on six weeks’ notice. Responding to these problems, the Counties requested and New York’s Legislature and Governor created the Oneida-Herkimer Solid Waste Management Authority, a public benefit corporation. See N. Y. Pub. Auth. Law Ann. §2049–aa et seq. (West 1995). The Authority is empowered to collect, process, and dispose of solid waste generated in the Counties. To further the Authority’s governmental and public purposes, the Counties may impose appropriate and reasonable limitations on competition by, for instance, adopting local laws requiring that all solid waste be delivered to a specified solid waste management-resource recovery facility. In 1989, the Authority and the Counties entered into a Solid Waste Management Agreement, under which the Authority agreed to manage all solid waste within the Counties. Private haulers would remain free to pick up citizens’ trash from the curb, but the Authority would take over the job of processing the trash, sorting it, and sending it off for disposal. The Authority collected tipping fees to cover its operating and maintenance costs for these facilities. The tipping fees significantly exceeded those charged for waste removal on the open market, but they allowed the Authority to do more than the average private waste disposer, including recycling of 33 kinds of materials. If the Authority’s operating costs and debt service were not recouped through tipping fees and other charges, the agreement provided that the Counties would make up the difference. Citizens might opt to have their waste hauled to facilities with lower tipping fees. To avoid being stuck with the bill for facilities that citizens voted for but then chose not to use, the Counties enacted flow control ordinances requiring that all solid waste generated within the Counties be delivered to the Authority’s processing sites. Private haulers must obtain a permit from the Authority to collect waste in the Counties. Penalties for noncompliance with the ordinances include permit revocation, fines, and imprisonment. Petitioners are United Haulers Association, Inc., a trade association made up of solid waste management companies, and six haulers that operated in Oneida and Herkimer Counties when this action was filed. In 1995, they sued the Counties and the Authority under 42 U.S.C. §1983, alleging that the flow control laws violate the Commerce Clause by discriminating against interstate commerce. They submitted evidence that without the flow control laws and the associated $86 per-ton tipping fees, they could dispose of solid waste at out-of-state facilities for between $37 and $55 per ton, including transportation. The District Court ruled in the haulers’ favor. The Second Circuit reversed in 2001 and again affirmed in 2006 after remand. The Supreme Court granted certiorari in 2006.

Beginning well over 100 years ago, landowners in western Pennsylvania began severing title to underground coal and the right of surface support while retaining or conveying away ownership of the surface estate. Approximately 90 percent of the coal that petitioners mine or will mine was severed from the surface in the period between 1890 and 1920. When acquiring or retaining the mineral estate, petitioners or their predecessors typically acquired the right to deposit wastes, provide drainage and ventilation, erect surface facilities, and obtained waivers of claims for damages resulting from coal removal. In 1966 the Pennsylvania Legislature enacted the Bituminous Mine Subsidence and Land Conservation Act after concluding that existing subsidence legislation had failed to protect public safety, land conservation, municipal tax bases, and land development. Section 4 of the Act prohibits mining that causes subsidence damage to public buildings and noncommercial buildings used by the public, dwellings used for human habitation, and cemeteries that were in place on April 17, 1966. The Department of Environmental Resources applies a formula that generally requires 50 percent of the coal beneath protected structures to remain in place. Section 6 authorizes the Department to revoke a mining permit if removal of coal causes damage to a protected structure and the operator has not repaired the damage, satisfied any claim, or deposited security equal to the reasonable cost of repair within six months. Petitioners are an association of coal mine operators and four corporations engaged in underground mining of bituminous coal in western Pennsylvania. Their members and the corporate petitioners own, lease, or control substantial coal reserves and support estates beneath surface property affected by the Act. In 1982, petitioners filed a civil rights action in the United States District Court for the Western District of Pennsylvania seeking to enjoin officials of the DER from enforcing the Subsidence Act and its implementing regulations. The parties entered a stipulation of facts on the facial challenge and filed cross-motions for summary judgment. The District Court granted respondents' motion in 1984. The Court of Appeals affirmed in 1985. The Supreme Court granted certiorari in 1986. Stipulations established that enforcement of the 50 percent rule would require petitioners to leave approximately 27 million tons of coal in place across 13 mines containing over 1.46 billion tons total. This amount represents less than 2 percent of the coal in those mines. Petitioners did not claim that any specific mine had become unprofitable since the Act's passage.

This case arises out of a plan by the Detroit Economic Development Corporation to acquire, by condemnation if necessary, a large tract of land to be conveyed to General Motors Corporation as a site for construction of an assembly plant. The plaintiffs, a neighborhood association and several individual residents of the affected area, brought suit in Wayne Circuit Court to challenge the project on several grounds. In the spring of 1980, General Motors informed the City of Detroit that it would close its Cadillac and Fisher Body plants located within the city in 1983. General Motors offered to build an assembly complex in the city if a suitable site could be found meeting four criteria: an area of between 450 and 500 acres, a rectangular shape, access to a long-haul railroad line, and access to the freeway system. The city evaluated nine potential sites and selected a parcel of approximately 465 acres straddling the Detroit-Hamtramck border known as Central Industrial Park. In July 1980 the Detroit Common Council approved the boundaries of the project. On September 30, 1980, the completed project plan was approved by the Detroit Economic Development Corporation. On October 31, 1980, the Common Council passed a resolution approving the project plan with minor modifications and declaring that the project constituted a public purpose. General Motors required that title to the entire site and the rail marshalling yard must be vested in the City of Detroit by May 1, 1981. The projected public cost of preparing a site agreeable to the board of directors of General Motors is over $200 million. The site was to be sold to General Motors for little more than $8 million. The trial court conducted a ten-day trial on defendants’ motion to dismiss from November 17 to December 2, 1980, limited to the question whether the city abused its discretion in determining that condemnation of plaintiffs’ property was necessary under 1980 PA 87. On December 9, 1980, the court entered judgment for defendants and dismissed the complaint. Plaintiffs filed a claim of appeal with the Court of Appeals on December 12, 1980, and an application for bypass with the Michigan Supreme Court on December 15, 1980, which the Court granted along with a motion for immediate consideration.