Amicus Curiae Brief — United Haulers Ass'n v. Oneida-Herkimer

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No. 05-1345

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IN THE

Supreme Court of the United States

UNITED HAULERS ASSOCIATION, INC., et a/.,

Petitioners,

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ONEIDA-HERKIMER SOLID WASTE

MANAGEMENT AUTHORITY, et al,

Respondents.

On Writ oF CERTIORARI TO THE

Unirep STaTes CourRT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF AMICUS CURIAE ENVIRONMENTAL

DEFENSE IN SUPPORT OF RESPONDENTS

Micuaet J. BEAN

Counsel of Record

JAMES T.B. TRIPP

ISABELLE SILVERMAN

J. CULLEN Howe

Environmental Defense

257 Park Avenue South

New York, New York 10010

(212) 505-2100

Counsel for Amicus Curiae

2052 66 ce

COUNSEL PRESS

(ROD) 274-3327] © ROO) 359-6859

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TABLE OF CONTENTS

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SUMMARY OF ARGUMENT .................

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I. THE PROBLEM OF WASTE DISPOSAL IN

THES UNITED STATES ........ccceeese

ll. THE COMPONENTS OF THE COUNTIES’

FLOW CONTROL REGULATIONS ......

Ill. THE RESPONDENTS’ FLOW CONTROL

REGULATIONS PROVIDE A WIDE

ARRAY OF IMPORTANT HEALTH AND

ENVIRONMENTAL BENEFITS TO

THE RESIDENTS OF ONEIDA AND

HERKIMER COUNTIES ...............

A. The Counties’ Flow Control Regulations

Provide Important Environmental and

Health Benefits to the Residents of

Oneida and Herkimer Counties. ......

B. The Respondents’ Flow Control

Ordinances Benefit the Counties’

Residents By Reducing Their Exposure

to Diesel Emissions. ..........>....

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Page

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TABLE OF CITED AUTHORITIES

Page

CASES

Pike v. Bruce Church, 397 U.S. 137 (1970) ....... 3

United Hauler Association, Inc. v. Oneida-Herkimer

Solid Waste Management Authority, 438 F.3d 150

PT EES 6 6 Uae Kee ned Kee hdecaswews 5 2

STATUTES

42 U.S.C. § 6901(a)(4) (2000) ........... bite 9

WORE SUNN oo is cos ais hac. Seuleee

OTHER AUTHORITIES

Clean Air Task Force, Diesel Soot Health Impacts:

Oneida County, New York, available at

http://www.catf.us/projects/diesel /dieselhealth/

county.php?c=3606S5&site=0 ................ 13-14

Comm. on Envir. Health, Am. Acad. of Pediatrics,

Ambient Air Pollution: Health Hazards to

Children, 14 Pediatrics 1699, 1702-1707 (2004),

available at http://pediatrics.aappublications.org/

cgi/content/full/114/6/1699#RS. ............. 13

Energy Info. Admin., U.S. Dep’t of Energy, Publ’n

No. DOE/EIA-0573, Emissions of Greenhouse

Gases in the United States 2005 (2005), available

at http://www.eia.doe. gov /oiaf/1605/ggrpt/

i. pis be) Sate hawea eka de ade 15

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Cited Authorities

Envt’l Prot. Agency, About EPA: Regions, http://

www.epa.gov/epahome/locate2.htm (last visited

TA cc sc cdehdes dcueneetnebeceens

Envt’l Prot. Agency, Clean Diesel Campaign, http:/

oe ae

National Ambient Air Quality Standards for

Particulate Matter; Proposed Rule, 71 Fed. Reg.

2620, 2627 (January 17, 2006) ...............

National Ambient Air Quality Standards for

Particulate Matter; Final Rule, 71 Fed. Reg.

61144, 61151 (October 17, 2006) .............

N.Y. Envtl. Conserv. Law § 27-0106(1) (McKinney

Ni cniek bb sh6 550 eehe wan eee seen eee

N.Y. State Dep’t of Health, EPSD/CTHP Provider

Manual for Child Health Plus 81 (2005), available

at http://www.emedny.org/ProviderManuals/

EPSDTCTHP/PDFS/EPSDT-CTHP.pdf

SSC Oeese See SECO OO CC ee Ceres Oe OO 4 OF Ge eae ae o's &

Office of Air Quality and Prot. Standards, Envt’! Prot.

Agency, 8-Hour Ground-level Ozone

Designations: Region 2: State Designations

(2004), http://www.epa.gov/ozonedesignations/

regions/region2desig.htm (last visited Dec. 5,

MEE obese bares eerie Ub Oboes “2 eee ee

Page

iv

Cited Authorities

Page

Office of Air Quality and Prot. Standards, Envt’! Prot.

Agency, 8-Hour Ground-level Ozone

Designations: Region 3: State Designations

(2004), http://www.epa.gov/ozonedesignations/

regions/region3desig.htm (last visited Dec. 5,

DE Sis ke cdc dubeukds Wash eeeay ete tens tba 16-17

Office of Air Quality and Prot. Standards, Envt’! Prot.

Agency, Fine Particle (PM 2? _ Designations: |

Region 2: State Designations (2004), http://

epa.gov/pmdesignations/regions/

region2desig.htm (last visited Dec. 5, 2006) .... 16

Office of Air Quality and Prot. Standards, Envt’! Prot.

Agency, Fine Particle (PM 2.5) Designations:

Region 3: State Designations (2004), http://

epa.gov/pmdesignations/regions/

region3desig.htm (last visited Dec. 5, 2006) .... 16

Office of Research and Dev., U.S. Envtl. Prot.

Agency, Publ’n No. EPA/600/8-90/057F, Health

Assessment for Diesel Engine Exhaust, p. 1-1

(2002), available at http://cfpub.epa.gov/ncea/

cfm/recordisplay.cfm?deid=29060. .......... 13,14

Office of Solid Waste, U.S. Envtl. Prot. Agency,

Municipal Solid Waste in the United States: 2005

Facts and Figures \-2 (2006), available at http:/

/www.epa.gov/epaoswer/non-hw/muncpl/

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- Cited Authorities

Page

U.S. Dep’t of State, U.S. Climate Action Report 2002,

27-30, Fig. 3-1, Table 3-1 (2002), available at

http://www.gcrio.org/CAR2002/car2002ch3.pdf

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STATEMENT OF INTEREST OF AMICUS CURIAE'

Environmental Defense is a leading national nonpiviit

organization representing more than 500,000 members

nationwide. Since its founding in 1967, Environmental

Defense has linked science, economics and law to create

innovative, equitable and cost-effective solutions to society’s

most urgent environmental problems. Environmental Defense

is dedicated to assuring that all people, including future

generations, enjoy clean air, clean water, healthy food and

flourishing ecosystems. Environmental Defense is guided by

scientific evaluation of environmental problems, and the

solutions it advocates are based on science. :

Pursuant to its mission, Environmental Defense is

interested in municipal waste management plans that

emphasize recycling and waste reduction and promote

transport of waste and recyclables by water or rail, rather

than by truck, in urban areas where these options are available

in order to reduce urban traffic congestion, minimize negative

air quality impacts, and otherwise serve human health and

environmental purposes. Because government entities are

able to take environmental considerations into account in

devising their solid waste management strategies, they are

often in the best position to design and implement

environmentally responsible solid waste management

systems. Environmental Defense supports the waste

' Pursuant to this Court’s Rule 37.6, no portion of this brief

was authored by counscl for a party, and no person or entity other

than the amicus curiae has made a monetary contribution to the

preparation or submission of this brief. The Petitioners and the

Respondents have both consented to the filing of this brief and their

respective letters of consent have been filed with the Clerk of the

Court.

2

management plan at issue here because it provides many

tangible environmental and air quality benefits to the

residents in Oneida and Herkimer Counties (the “Counties”.

Most importantly, the flow control regulations are essential

to the Counties’ successful implementation of their waste

management plan. Many other municipalities, such as New

York City, could reduce the environmental burdens of their

waste system if they could exercise increased control over

the flow of commercial sector waste.

SUMMARY OF ARGUMENT

The United States produces almost 250 million tons of

trash per year, the vast majority of which is put into landfills.

Many communities, particularly urban ones such as New York

City, have reached the point where they have to transport

their waste hundreds of miles so it can be put into landfills

with available capacity. While this has resulted in a thriving

waste transport business, it has led to a dependency on truck-

_based means of transporting this waste, with little municipal

control over the emissions from private sector trucks, most

of which pre-date any effective federal regulations,

exacerbating traffic congestion and air pollution.

Municipalities like New York City have an interest in

fostering a solid waste system that minimizes air pollution

and traffic congestion. Flow control is one of the most

effective ways of accomplishing these goals.

The purpose of this brief is not to add to the legal

arguments of respondents and other amicus parties that

support the position of the respondents that the Second

Circuit in United Hauler Association, Inc. v. Oneida-

Herkimer Solid Waste Management Authority, 438 F.3d 150

(2™ Cir. 2006) (“United Haulers II”) correctly applied the

3

balancing test that this Court enunciated in Pike v. Bruce

Church, 397 U.S. 137 (1970) in analyzing the respondents’

flow control regulations. Under this test, courts will uphold

a challenged regulation unless it places a burden on interstate

commerce that is clearly excessive when compared to the

putative local benefits. While, in our view, the Second

Circuit’s analysis is sound, and the challenged regulations

do not treat similarly situated in-state and out-of-state

business interests differently, the purpose of this brief is to

highlight the very significant environmental and

environmental justice benefits that can be derived through

properly designed municipal flow control programs.

The Second Circuit held that such local benefits included

a waste management system that encourages waste volume

- reduction, recycling and reuse and ensures the proper disposal

of hazardous waste. Environmental Defense submits this

amicus brief in support of respondents because, whether the

Court applies the Pike balancing test or any more stringent

standard to the challenged regulations, it is vitally important

that it consider the full measure of environmental benefits

that they provide to the Counties’ residents, and the benefits

that similarly enacted flow control regulations can provide

to residents in other communities.

The flow control provisions at issue here are an integral

part of the waste management plan implemented by Oneida-

Herkimer Solid Waste Management Authority (the

“Authority”). They provide for maximum levels of waste

reduction and recycling. To this end, the regulations require

that waste generators separate their recyclable material and

make it available for delivery to the Authority. Non-recyclable

waste is brought to the Authority’s transfer station. It is first

inspected to ensure that it does not contain any hazardous

4

waste and it is then transported to its ultimate disposal site

by a contractor chosen by the Authority. These regulations

are consistent with both federal and state policy concerning

waste disposal.

By encompassing these state and federal policies, the

regulations provide numerous benefits to the Counties’

residents, including minimizing the amount of waste that is

hauled by trucks, thereby reducing the amount of diesel fuel

that the Counties’ residents are exposed to; providing reliable

waste management service while protecting the public health,

safety and welfare; replacing high volume, undifferentiated

waste disposal methods with a system that matches the best

management method to each component of solid waste;

making waste reduction and recycling legally mandated top

priorities for solid waste management; establishing and

expanding markets for recyclables; and conserving vital

natural resources.

The regulations provide many environmental, economic

and social benefits. Since 1989, the Counties’ recycling rate

has increased fourfold. Over the last seventeen years over,

700,000 tons of materials have been recycled. Approximately

50% of all solid waste collected by the Authority is recycled

instead of being landfilled. Of this amount, over 370,000

tons of recyclable material have been processed and sold,

generating millions of dollars for the Authority’s solid waste

management system. It has also ensured the proper and safe

disposal of hazardous waste. Finally, because a portion of

this recycled material is sold, the regulations have realized

the additional benefit of reducing the extraction of natural

resources.

5

The respondents’ flow control regulations also provide

significant air quality and health benefits for the Counties’

residents because they minimize the number of trucks used

to transport waste, and reduce the number of miles traveled

by each truck, because solid waste is disposed of locally.

Most garbage trucks run on diesel fuel, and it is well

documented that diesel emissions are harmful to human

health and contribute substantially to local air pollution.

Diesel exhaust is a major contributor of the cancer risk from

air toxins in the United States. Exposure to diese] exhaust

can also contribute to short and long-term health hazards,

such as asthma, cardiovascular and respiratory problems,

strokes, heart attacks, lower birth weight and even premature

death.

ARGUMENT

I. THE PROBLEM OF WASTE DISPOSAL IN THE

UNITED STATES

According to the United States Environmental Protection

Agency, from 1960 to 2005, the total amount of municipal

solid waste generated annually in the United States increased

from 88 million tons to 245.7 million tons, slightly less than

one ton of trash for each American. See Office of Solid Waste,

U.S. Envtl. Prot. Agency, Municipal Solid Waste in the United

States: 2005 Facts and Figures \-2 (2006), available at http:/

/www.epa.gov/epaoswer/non-hw/muncpl/msw99.htm. This

averages to approximately 4 ‘2 pounds of trash per person

per day. Although some of this waste is recycled, the vast

majority of it is put into landfills. While the per capita

generation rate of municipal solid waste is slowly leveling

off, the total amount of solid waste that must be disposed of

each year continues to increase. See id. Unless innovative

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approaches such as the Authority’s are adopted, continual

construction and expansion of landfill capacity will be

needed, which in turn steadily increases the consumption of

land for disposal.

Many communities, particularly high density urban areas

such as New York City, have reached the point where they

do not have the facilities to dispose of their solid waste locally

and must therefore transport the vast majority of it hundreds

of miles so it can be put in landfills with available capacity.

While this has resulted in a thriving waste transport business,

it has led to most commercial waste in New York City being

transported by private charter collection trucks to land-based

transfer facilities concentrated in low-income communities

and then exported to out-of-state facilities via private firm,

long-haul trucks. Since most of these privately operated

trucks have been in use for years and will be in use for many

more years, their diesel emissions are not effectively

regulated. This truck dependency exacerbates road congestion

and air pollution. It also negatively impacts the health of

residents in communities where these facilities are located.

In New York City hundreds of garbage trucks are clogging

already congested streets. It is not uncommon to see garbage

trucks from several different commercial waste haulers

service businesses on the same street. Municipalities such

as New York City have an interest in fostering a solid waste

system that minimizes air pollution and traffic congestion

by, among other things, encouraging marine or rail transport

as a way of reducing waste truck vehicular miles traveled.

Flow control is one of the most effective ways of

accomplishing these environmental and social goals.

Because environmental concerns are an inherent part of

waste creation and disposal, it is appropriate for municipal

7

governments to assert control over waste created in their

community, and flow control is an essential tool in ensuring

that this waste is disposed of in an environmentally

responsible manner.

Il. THE COMPONENTS OF THE COUNTIES’ FLOW

CONTROL REGULATIONS

The flow control provisions at issue here were included

in Oneida County Local Law #1 of 1990 and Herkimer

County Local Law #1 of 1990 (the “Regulations”). Pet. App.

118a-130a (Oneida County Ordinance), 13 1a-143a (Herkimer

County Ordinance). They are an integral part of the

comprehensive waste management plan implemented by the

Authority, a public benefit corporation created in the late

1980’s. In general, the Regulations establish fundamental

responsibilities for each citizen, waste generator,

municipality and hauler. To this end, they “provide for

maximum levels of waste reduction and recycling, coupled

with the development of environmentally and economically

sound programs and facilities for the remainder of the waste

stream.” JA144a.

A primary component of the Regulations is recycling and

waste reduction. The Regulations require both waste source

separation by waste generators and delivery of these

segregated materials to various county-designated public

facilities by all public and private waste haulers. By charging

for the disposal of solid waste, while accepting recyclables

at no cost, the Regulations concomitantly encourage waste

reduction and recycling. They also provide funding for a wide

range of waste reduction, recycling facilities and programs.

8

The Regulations require that every waste generator

(citizens, businesses, etc.) provide for the proper disposal of

all waste that they generate by requiring them to separate

recyclable from non-recyclable waste before collection by

waste haulers. Although waste generators may have

recyclables sent directly to a buyer outside of the Authority’s

system, if they do not make such an arrangement, they must

place recyclables at the curbside for delivery to the Authority.

JA 358a.

The Regulations further mandate that private haulers

deliver all acceptable non-recyclable materials and all

curbside recyclables generated within the Counties to the

Authority’s recycling facility. Once the recyclables are

delivered to the facility, they are processed and ultimately

sold to buyers all over the world. The Authority recycles 33

types of waste products, many of which are not commonly

recycled by other public or private waste management

programs. JA 378a-79a.

Nonrecyclable waste is brought to the Authority’s

transfer stations. The waste is inspected to ensure that it does

not contain any dangerous or hazardous materials and to

ensure that haulers and generators comply with the

Regulations’ recycling requirements. Following the

inspection, the waste is consolidated to facilitate

transportation to its ultimate disposal site by a contractor

chosen by the Authority through an open, competitive bidding

process. To ensure that this waste is disposed of in an

environmentally responsible manner, the Authority has, in

the past, selected a contractor that demonstrates “the requisite

experience and skill in the necessary technologies, and

propos[es] a plan that provides the most cost-effective

( 9

method of disposing of solid waste with maximum protection

of human health and the environment.”” JA 259a.

The Regulations are consistent with both federal and state

policy concerning solid-waste disposal. The Resource

Conservation and Recovery Act (“RCRA”), states that “the

collection and disposal of solid wastes should continue to

be primarily the function of State, regional, and local

agencies.” 42 U.S.C. § 6901(a)(4) (2000). Although RCRA

establishes national solid waste goals and standards, it places

primary responsibility on the States to develop solid waste

management plans that promote recycling, energy recovery,

resource conservation, and environmentally sound disposal

methods. 42 U.S.C. § 6943(b). Consistent with RCRA’s

mandate, New York State has established four statewide

management priorities with regard to solid waste: (1) reduce

the amount of solid waste generated; (2) reuse material for

the purpose for which it was originally intended or recycle

material that cannot be reused; (3) recover, in an

environmentally acceptable manner, energy from solid waste

that cannot be economically and technically reused and

recycled; and (4) dispose of solid waste that is not being

reused, recycled or from which energy is not being recovered,

by land burial or other methods approved by the department.

N.Y. Envtl. Conserv. Law § 27-0106(1) (McKinney 2006).

The Regulations are consistent with these federal and state

policies.

? As of October 24, 2006, the Authority’s solid waste landfill,

located in Oneida County, was completed and began receiving waste.

Starting January 1, 2007, all non-hazardous, non-recyclable waste

from the Counties will be landfilled there. Resp. Br. at 1.

10

Ill. THE RESPONDENTS’ FLOW CONTROL

REGULATIONS PROVIDE A WIDE ARRAY OF

IMPORTANT HEALTH AND ENVIRONMENTAL

BENEFITS TO THE RESIDENTS OF ONEIDA

AND HERKIMER COUNTIES.

The flow control Regulations provide numerous

environmental benefits to the residents of Oneida and

Herkimer Counties. Such benefits include minimizing the

amount of waste that is hauled by trucks, thereby reducing

the amount of diesel fuel that the Counties’ residents are

exposed to; providing reliable waste management service

while protecting the public health, safety and welfare;

replacing high volume, undifferentiated waste disposal

methods with a system that matches the best management

method to each component of solid waste; making waste

reduction and recycling legally mandated priorities for solid

waste management; establishing and expanding markets for

recyclables; and conserving vital natural resources.

A. The Counties’ Flow Control Regulations Provide

Important Environmental and Health Benefits to

the Residents of Oneida and Herkimer Counties.

In addition to reduced exposure to diesel emissions, the

respondents’ flow control regulations have resulted in other

important environmental, economic and social benefits to

the residents of Oneida and Herkimer Counties.

First and foremost, the Regulations benefit the Counties’

residents by creating a comprehensive waste management

system that matches the best management method to each

component of solid waste while making waste reduction and

recycling legally mandated priorities.

11

Together, the Counties produce approximately 300,000

tons of waste each year. Since 1988, when the Authority was

created, it has reliably and safely disposed of over 2.3 million

tons of solid waste generated in the Counties. Since the

opening of the Authority’s recycling facility in 1991, it has

removed over 700,000 tons of material from the waste stream

through recycling, or approximately one-third of the total

amount of solid waste generated. Of this amount, over

370,000 tons of recyclable material has been processed and

sold, yielding more than $13 million in revenue, and

conserving approximately two years of landfill capacity.

The avoided cost of landfilling this recyclable material at

$55/ton is over $20 million. Since 1992, the Authority has

received and composted over 180,000 tons of yard debris,

and made over 50,000 cubic yards of compost and mulch

available to the Counties’ residents. The avoided cost of

landfilling this material, at $55/ton, is over $7.5 million.

JA 359a.

Moreover, because the Counties charge “tipping fees”

for the collection and disposal of nonrecyclable waste but

do not charge such a fee for recyclables, the Regulations

provide a strong economic incentive for waste creators to

comply with the recycling mandate. These economic

incentives encourage residents, businesses and haulers to find

innovative ways to reduce the amount of waste they generate.

For example, higher tipping fees have provided an incentive

for large waste generators in the Counties, such as hotels

and industrial facilities, to seek out waste reduction and

recycling opportunities. The Authority has assisted such

efforts. JA 381a-82a.

The Authority’s recycling facility also provides the

benefit of ensuring the proper and safe disposal of hazardous

12

waste. Since 1993, the facility has received and safely

disposed of or recycled over 260,000 gallons of liquid

hazardous waste, including paint, pesticides, pool and

photographic chemicals, oil, antifreeze, and batteries.

JA 359a-60a. By properly screening all waste that comes into

.the facility, the Authority ensures that all liquid and hazardous

waste is disposed of in a manner that provides maximum

protection of human health and the environment. The benefits

of proper disposal of such waste are obvious. The safe

disposal of hazardous waste was the impetus behind the

creation of the Authority in the 1980’s, when state health

officials closed drinking water wells near several dump sites

in the Counties, twelve of which were ultimately identified

as hazardous waste disposal sites by state and federal

authorities, and one of which was named to the National

Priorities List (Superfund). Resp. Br. at 3-4.

Finally, the Regulations have realized an additional

benefit, the reduced extraction of natural resources. Most of

the recyclables are sold to companies that use the recyclable

materials as feedstock to manufacture new products, thereby

replacing the use of virgin materials in the manufacturing

process.

B. The Respondents’ Flow Control] Ordinances —

Benefit the Counties’ Residents By Reducing

Their Exposure to Diesel Emissions.

The respondents’ flow control measures also provide

important air quality and health benefits for the Counties’

residents because the regulations’ recycling requirements

reduce the amount of waste that is ultimately landfilled. Flow

control has further allowed the Counties to site their landfill

within their borders. Thus, the Regulations have the effect

13

of both minimizing the number of trucks used to transport

waste and reducing the number of miles traveled by each

truck, thereby reducing the Counties’ residents’ exposure to

harmful diesel emissions.

Most garbage truck engines run on diesel fuel. Often,

diesel garbage trucks, which can stay in use for decades, have

very old, Highly polluting engines. It is well documented that

diesel emissions are harmful to human health and contribute

substantially to local air pollution. Several organizations,

including the Environmental Protection Agency (EPA), have

designated diesel exhaust as a probable or potential human

carcinogen. Diesel exhaust is a major contributor of the

cancer risk from air toxins in the United States. Office of

Research and Dev., U.S. Envtl: Prot. Agency, Publ’n No.

EPA/600/8-90/057F, Health Assessment for Diesel Engine

Exhaust, p. 1-1 (2002), available at http://cfpub.epa.gov/

ncea/cfm/recordisplay.cfm?deid=29060. Studies show that

concentrations of toxic pollutants, such as diesel emissions,

in neighborhoods near heavily traveled highways, are

significantly higher than normal, producing a cancer risk as

high as | in 130 in some areas. Comm. on Envir. Health,

Am. Acad. of Pediatrics, Ambient Air Pollution: Health

Hazards to Children, 14 Pediatrics 1699, 1702-1707 (2004),

available at http://pediatrics.aappublications.org/cgi/content/

full/1 14/6/1699#RS.

For residents of Oneida County, the lifetime cancer risk

from diesel soot exceeds the combined risk of all other air

toxics tracked by the EPA. For these residents, the average

lifetime diesel soot cancer risk is 155 times greater than EPA’s

acceptable cancer level of | in a million. Compared to other

counties nationwide, Oneida County’s citizens have a

considerably above-average cancer risk. Clean Air Task

14

Force, Diesel Soot Health Impacts: Oneida County, New

York, available at http://www.catf.us/projects/diesel /

dieselhealth/county.php?c=36065&site=0 (using the

approved health impact modeling methodology of the EPA).

For residents of Herkimer County, the average lifetime diesel

soot cancer risk is 130 times greater than the EPA’s acceptable

cancer level. Jd. Notably, Oneida and Herkimer Counties

comply with the federal health-based ozone and PM, .

standard. In counties that are in non-attainment for those

pollutants, the average diesel soot cancer risk is even higher.

Those counties, especially, should not be further burdened

with unnecessary long-haul diesel trucks.

Besides cancer, exposure to diesel emissions

significantly contributes to short and long-term health —

hazards, such as asthma, cardiovascular and respiratory

problems, strokes, heart attacks, lower birth weight and even

premature death. Office of Research and Dev., U.S. Envtl.

Prot. Agency, Publ’n No. EPA/600/8-90/057F,

Health Assessment for Diesel Engine Exhaust, p. 1-|

(2002), available at http://cfpub.epa.gov/ncea/cfm/

recordisplay.cfm?deid=29060. Nationwide, EPA has

estimated that diesel pollution is the leading cause of

- thousands of instances of premature mortality, hundreds of

thousands of asthma attacks, millions of lost work days, and

numerous other health impacts. Envt’! Prot. Agency, Clean

Diesel Campaign, http://www.epa.gov/diesel (last visited

Dec. 2, 2006). Many epidemiological studies have

‘documented the serious health threats associated with

exposure to fine particulate matter (PM, ,) — otherwise known

as black soot. With respect to PM, , EPA has determined

that “[t}he range of health outcomes ‘linked with fine particle

exposures is also broad, including effects on the

cardiovascular and respiratory systems, and potential links

- 15

with developmental effects in children (e.g. , low birth weight)

and death from lung cancer.” National Ambient Air Quality

Standards for Particulate Matter; Proposed Rule, 71 Fed.

Reg. 2620, 2627 (January 17, 2006). See also National

Ambient Air Quality Standards for Particulate Matter; Final

Rule, 71 Fed. Reg. 61144, 61151 (October 17, 2006). In

addition, diesel engines emit nearly 40 toxic substances,

including carbon monoxide, smog-forming nitrogen oxides

and hydrocarbons.’

As mentioned above, diesel pollution is a known trigger

for asthma attacks. The New York State Department of Health

has found that asthma is a serious public health problem in

New York State and the nation. Children are especially at

risk because they breathe at a faster rate — in New York State

over 250,000 children suffer from asthma. Asthma caused

an average of 358 deaths per year in New York during the

period 1998-2000, including 12 deaths per year in children

under 14 years of age. In addition, New York residents had

an average of 42,725 asthma hospitalizations per year during

the period 1998-2000. Total Medicaid health care

expenditures for recipients with asthma in New York State

exceeded $1 billion in fiscal year 2000. N.Y. State Dep’t of

Health, EPSD/CTHP Provider Manual for Child Health

> Diesel fuel emissions also produce approximatcly 22% of the

1,958 million metric tons of carbon dioxide (CO,) released by the

transportation sector. Energy Info. Admin., U.S. Dep't of Energy,

Publ’n No. DOE/EIA-0573, Emissions of Greenhouse Gases in the

United States 2005 (2005), available at http://www.eia.doe.gov/oiaf/

1605/ggrpt/index.html. Such CO, cmissions, in turn, constitute the

dominant man-made greenhouse gas associated with climate change.

U.S. Dep't of State, U.S. Climate Action Report 2002, 27-30, Fig. 3-

1, Table 3-! (2002), available at http://www.gcrio.org/CAR2002/

car2002ch3.pdf.

16

Plus 81 (2005), available at http://www.emedny.org/

ProviderManuals/EPSDTCTHP/PDFS/EPSDT-CTHP.pdf.

The Counties’ flow control measures also provide

important air quality benefits to people living and working

in counties where diesel long-haul trucks, carrying solid

waste from the Counties, pass through on their long journey

to out-of-county landfills such as landfills in Virginia or

Pennsylvania. Long-hau! diesel trucks on their way to

landfills in Pennsylvania or Virginia could travel through

counties in New York, New Jersey, Delaware, Maryland, the

District of Columbia and Pennsylvania. This region is already

struggling with bad air quality and many counties of those

states are in non-attainment with federal health-based air

quality standards for fine particle matter (PM, ,) and ground-

level ozone standards. EPA Regions 2‘ and 35 have a total of

158 counties containing millions of people that are in non-

attainment with the federal health-based ozone standard and

80 counties that are in non-attainment with the federal health-

based fine particle (PM, .) standard. Office of Air Quality

and Prot. Standards, Envt’! Prot. Agency, 8-Hour Ground-

level Ozone Designations: Region 2: State Designations

(2004), http://www.epa.gov/ozonedesignations/regions/

region2desig.htm (last visited Dec. 5, 2006) (showing Region

2 ozone non-attainment counties); Office of Air Quality and ~

Prot. Standards, Envt’! Prot. Agency, 8-Hour Ground-level

Ozone Designations: Region 3: State Designations (2004),

* EPA Region 2 is comprised of New York, New Jersey, Puerto

Rico, and the Virgin Islands. See Envt’l Prot. Agency, About EPA:

Regions, http://www.epa.gov/epahome/locate2.htm (last visited Dec.

5, 2006).

* EPA Regions 3 is comprised of Pennsylvania, Maryland, the

District of Columbia, Delaware, Virginia and West Virginia. See id.

-

17

http://www.epa.gov/ozonedesignations/regions/

region3desig.htm (last visited Dec. 5, 2006) (showing Region

3 ozone non-attainment counties); Office of Air Quality and

Prot. Standards, Envt’! Prot. Agency, Fine Particle (PM 2.5)

Designations: Region 2: State Designations (2004), http://

epa.gov/pmdesignations/regions/region2desig.htm (last

visited Dec. 5, 2006) (showing Region 2 PM,, non-

attainment counties); Office of Air Quality and Prot.

Standards, Envt’] Prot. Agency, Fine Particle (PM 2.5)

Designations: Region 3: State Designations (2004), http://

epa.gov/pmdesignations/regions/region3desig.htm (last

visited Dec. 5, 2006) (showing Region 3 PM,, non-

attainment counties).

Hence, the Counties’ flow control measures will provide

an additional benefit of eliminating thousands of miles

unnecessarily traveled by polluting diesel long-haul trucks

inside and outside the Counties’ borders.

CONCLUSION

For the foregoing reasons, the decision of the Second

Circuit should be affirmed.

Respectfully submitted,

Micuaet J. BEAN

Counsel of Record

James T.B. Tripp

ISABELLE SILVERMAN

J. CuLteNn Howe

Environmental Defense

257 Park Avenue South

New York, New York 10010

Counsel for Amicus Curiae