Opposition Brief — Eastern Kentucky Resources v. Fiscal Court of Magoffin County

Supreme Court, U.S.

(e) ih 2»

No. 97-1194 > FEB 18 1997

IN THE 7 CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1997

EASTERN KENTUCKY

RESOURCES, Et Al. - - - - Petitioners,

versus

THE FISCAL COURT OF sceeupetamieanid

COUNTY, Et. Al, - - - - Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION

KATHRYN M. HARGRAVES

Counsel of Record

KATHRYN R. MATHENY

KAREN HARPENAU RIPPY

Natural Resources and Environmental

Protection Cabinet

Office of Legal Services

Fifth Floor, Capital Plaza Tower

Frankfort, Kentucky 40601

(502) 564-5576

Counsel for Respondents Paul E. Patton,

Governor of the Commonwealth of

Kentucky, and James E. Bickford,

Secretary of the Natural Resources end

Environmental Protection Cabinet

WESTERFIELD-BONTE CO., 619 W. KENTUCKY-P.O. BOX 3251, LOUISVILLE, KY.

i

QUESTION PRESENTED

Whether a state municipal solid waste program that

links landfill permits to local planning violates the Com-

merce Clause, by allowing a county either to host a landfill

with an evenhanded cap on the landfill’s size, or to pro-

hibit all new landfills and to market its garbage outside

the county.

ii

TABLE OF CONTENTS

I. The Case Turned on a Question of Fact,

Not Constitutional Law; The Sixth

Circuit Correctly Applied Supreme

Court Precedents and Issued an Opinion

Consistent With Those Precedents and

the Opinions of Other Courts. ..................

A. EK Resources Did Not Prove That

Senate Bill 2 Was Enacted With a

Discriminatory Purpose. .....................

B. EK Resources Did Not Prove That

Senate Bill 2 Discriminates in

Practical Effect. .................cccccccscsccsccseees

C. Because EK Resources Did Not Prove

That Senate Bill 2 Has Discriminated

Against Interstate Commerce, This

Case Is Distinguishable From Fort

o_O a

CGE ET siivtnnisihesaniiccdncbaleusnasacabudidenamaaaedindia:

PAGE

iii

TABLE OF AUTHORITIES

PAGE

Cases:

Adickes v. S.H. Kress & Co., 398 U.S. 144

IIIT bticictlhinisdntebapehinaribimdepnibtahinemniqnccesseeretestooeeses 11

Blue Circle Cement v. Bd. of County Comm'rs,

27 F.3d 1499 (10th Cir. 1994).........csccccrcccessees 8

Brimmer v. Rebman, 138 U.S. 78 (1891)............... 13

C & A Carbone, Inc. v. Town of Clarkstown, N.Y.,

ee es a riisendeescninrsibosetsiivecscreresveoses 7

Chambers Medical Technologies of S.C. Ltd. v.

Bryant et al., 52 F.3d 1252 (4th Cir. 1995)...... 8

Chemical Waste Management, Inc. v. Hunt, 504

EE ccemiaisneihicovaveemitinienntemtinenreceecers 8

City of Philadelphia v. New Jersey, 437 U.S. 617

asia dls sill iaeicemeinoniinninemineerdiers 7, 8,9, 14

Dean Milk Co. v. City of Madison, 340 U.S. 349

EAI a dicieliicdctaabataibiniiennsaglinuibidddrotenptinitoprnigntvebencere 13

Eastern Kentucky Resources v. Arnett, 892 S.W.2d

ED ersenitcvetensnertvcnoriciineneioveriies 5

Eastern Kentucky Resources v. Arnett, 934 S.W.2d

inde inislindiaiinemnedibiemeereinre 5, 15

Exxon Corp. v. Governor of Maryland, 437 U.S.

IN Lilian ik incnindidimenteiininrdaanapienens 8, 14, 16, 18

Fort Gratiot Sanitary Landfill, Inc. v. Michigan

Dep’t of Natural Resources, 504 U.S. 353

irate teint ehbiiaditaiensdiecbenonnierbtererverevees 16, 17

Gary D. Peake Excavating, Inc. v. Town Bd. of

Hancock, 93 F.3d 68 (2d Cir. 1996).................. 10, 12

Goodman v. Lukens Steel Co., 482 U.S. 656

SESE RS eee ee 9

GSW v. Long County, 999 F.2d 1508 (11th Cir.

Nee ia ica a csasteeceaehibinmeneinreree 14, 15, 16

H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S.

a cs sical eetatrerennrewe 6

Hughes v. Alexandria Scrap Corp., 426 U.S. 794

EES ac ee ae aoe ae 3

Hughes v. Oklahoma, 441 U.S. 322 (1979)............ 9,12

Hunt v. Washington State Apple Advertising

Comm’n, 432 U.S. 333 (1977) ............sssssessseseees 10, 12

Kassel v. Consolidated Freightways Corp. of

Delaware, 450 U.S. 662 (1981) ..................eeeeeee 9

iv

wu —~PAGE-

Cases (Cortinued):

Kleenwell BioHazard Waste and General Ecology

Consultanis, Inc. v. Nelson, 48 F.3d 391 (9th

CODE, BIE hake csisnientinsnniiichadecictiiahinstisiaebdaioachalataniauiliies 8

Minnesota v. Clover Leaf Creamery Co., 449 U.S.

GRR CED sektsinsitccctssitneibscctaainatnibencs 8, 10, 14, 16, 18

Morrow v. City of Louisville, 249 S.W. 721 (Ky.

RN ikiiiivininkenhabiesigiitin as sities cibnsinteeiiiatoheineiiabinne 11

New Energy Company of Indiana v. Limbach,

SE CE ED cndidbavcninsnisssaniisnsinstaniltinasoconse 7

Old Bridge Chemicals, Inc. v. New Jersey Dep’t

of Environmental Protection, 965 F.2d 1287

CR FP siitabccvsssidccthceindetdnbigvecsicahswsinsiecéoos 8

Oregon Waste Systems v. Dep’t of Environmental

Quality of Oregon, 511 U.S. 93 (1994) ............. 9

Perry v. Commerce Loan Co., 383 U.S. 392 (1966) 10

Pike v. Bruce Church, Inc., 397 U.S. 187 (1970) .. 7, 8, 17

SDDS, Inc. v. South Dakota, 47 F.3d 263 (8th Cir.

FOOD a teisacncesaadsdess cconacpunocrtasencetatueiiscalectGteeeses 12

SSC Corp v. Town of SmithTown., 66 F.3d 502

COS ae PO ike uiisnca vicctbdcinincbadicadeincidentsctecbinases 15

Taylor v. Freeland & Kronz, 503 U.S. 638 (1992). 15

U.S. v. Vusiteh, 4038 U.S. CS GTI) ...ccccccccccsccccccnseee 9

U.S.A. Recycling, Inc. v. Town of Babylon, 66 F.3d

See ey Be neik ik scnccieceesicscsnecscsastcbscnass 14, 16, 18

Constitutional Provisions:

United States Constitution, art. 1, §8, cl. 3........... 6

Rules:

Supreme Court Rule 14.1(f) ...........cccccccccsscscsscccccess 2

Statutes:

Senate Bill 2, Ky. Acts 1991, ch.12 .................:c0000 3

I sc cicitinss wdatsseis isis ileinsiesasbeoadliain 1, 4, 12, 16

gg EERE rere eee ars are 1, 3, 4, 10

I ii ascitic ctaiaads 1, 3, 12, 16,17

No, 97-1194 4

SUPREME COURT OF THE UNITED STATES

versus

THE FiscaL Court OF MAGOFFIN

County, Et Al, - - - - - - Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION

The Respondents, Paul E. Patton, in his capacity as

Governor of the Commonwealth of Kentucky, and James

E. Bickford, in his capacity as Secretary of the Natural

Resources and Envi\onmental Protection Cabinet of the

Commonwealth of Kentucky, respectfully request that this

Court deny the petition for Writ of Certiorari, seeking re-

view of the opinion issued by the United States Court of

Appeals for the Sixth Circuit in this case. That opinion is

reported at 127 F.3d 532 (1997).

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved are KRS 224.43-345,

KRS 224.43-010, and KRS 224.40-315. They are presented

ee ON

2

in the appendix because of their length, and because EK

Resources’ quotations were not set forth verbatim in con-

formity with Supreme Court Rule 14.1(f).

STATEMENT OF THE CASE

This is a case about EK Resources’ attempt to site a

new municipal solid waste landfill in Magoffin County,

Kentucky. Because EK Resources did not succeed, it is

petitioning the Supreme Court of the United States to do

what the courts below would not—strike Kentucky’s pro-

gram for managing municipal solid waste down under the

Commerce Clause. EK Resources did not prevail below

because it failed to prove that discrimination by diiferen-

tial treatment existed under the challenged statutes, as is

necessary for strict scrutiny under the Commerce Clause.

EK Resources now asks the Supreme Court to overturn

the findings of fact made by the United States District

Court, Eastern District of Kentucky and affirmed by the

United States Court of Appeals for the Sixth Circuit, to

hold that differential treatment does in fact exist.

In so petitioning, EK Resources omits in its Statement

of the Case several key factual findings entered by the

courts below. These facts relate to the timing between the

landfill proposal and the challenged statute’s enactment,

the reasons for Kentucky’s actions with respect to the land-

fill permit application, and the events, unrelated to the

challenged statute, that hindered construction of the new

landfill.

Kentucky’s program for managing municipal solid waste

(commonly known as garbage) sets design and operation

standards for landfills, and links landfill permits to local

planning. Kentucky first developed a program regulating

garbage disposal in the 1960's, but it emphasized the con-

trol of open dumps, with minimal local planning. The local

planning that was required was not effective, and was not

LS, Neen Bean

3

linked to the issuance of landfill permits. In 1990,

Kentucky's Natural Resources and Environmental Protec-

tion Cabinet (“the cabinet”) adopted more stringent stan-

dards for landfills, and then-Governor Wallace G. Wilkinson

announced a special legislative session on garbage.

Senate Bill 2, Ky. Acts 1991, ch.12 (“SB 2”) was en-

acted at the special legislative session, and became effec-

tive February 21, 1991. It contains sixty-three sections

governing garbage reduction strategies, landfill permits,

state and local planning, garbage collection, tax incentives

for recycling, and public participation in local planning

and permitting. Local planning areas were to be estab-

lished, and were charged to administer fifteen solid waste

planning duties, including the duty to project local garbage

disposal needs and to plan for those needs by finding

present and future “homes” for garbage. KRS 224.43-345.

The goal of SB 2 is to reduce the amount of garbage gener-

ated per person by 25%, by using the three basic precepts

of solid waste management, “reduce, reuse, and recycle”.

KRS 224.43-010.

Kentucky counties must either “host” a landfill open to

local and out-of-county garbage (including out-of-state gar-

bage), or they may “sell” their garbage outside the county,

in which case new landfills are not sited within the county.

A county hosting a new landfill may limit its capacity, but

only by limiting the total amount of garbage to be ac-

cepted. A county may not site a local landfill and reserve

its capacity for local use. SB 2, as drafted and adminis-

tered, does not allow a ban on garbage from outside a

county.

1 However, a county may own its own landfill and reserve that

landfill for local use without violating the Commerce Clause,

under the market participant doctrine established in Hughes v.

Alexandria Scrap Corp., 426 U.S. 794 (1976). Two of Kentucky’s

120 counties have selected this option.

4

SB 2 links landfill permits to local solid waste manage-

ment plans, by requiring all applications for new landfills

to be locally reviewed. KRS 224.40-315. This furthers the

legitimate local interest of requiring government officials,

local citizens and landfill developers to work together on

reducing the amount of garbage generated per person and

slowing the flow of garbage into landfills. See, e.g, KRS

224.43-010(2), (3). This “local determination” process ap-

plies to all new landfills and substantial expansions of

existing landfills.

Under SB 2 all garbage is treated identically, regard-

less of origin, and garbage moves freely into and out of

Kentucky. The record below reflects that the amount of

garbage imported to Kentucky from out-of-state has doubled

since enactment of SB 2. At the same time, the number of

landfills went from 70 to 30. Petitioner’s Appendix, pages

25a, 40a (“Pet. 25a, 40a”). The total disposal capacity

authorized in the 118 local solid waste plans is double

Kentucky’s needs as projected over the next ten years,

meaning that half of authorized capacity is reserved for

out-of-state garbage. Id. The Sixth Circuit held that this

is an evenhanded approach to managing garbage, present-

ing no differential treatment benefitting a local economic

interest and burdening a foreign interest. (Pet. 26a-27a.)

In so holding, the Sixth Circuit affirmed the findings made

by the district court. (Pet. 55a-56a.)

EK Resources offers the conclusion in its Statement of

the Case that Kentucky acted to stop the proposed landfill

since the landfill would accept out-of-state garbage. The

record does not support that conclusion. To begin with, SB

2 could not have been enacted to defeat EK Resources’

landfill, because it was months after enactment of SB 2

that EK Resources first presented its landfill proposal to

the Magoffin County Fiscal Court. (Pet. 44a.) Further,

the cabinet rejected EK Resources’ permit application be-

5

cause the county’s solid waste management plan, which =

incorporated the proposed landfill, was defective. (Pet.

44a-45a.) That plan was defective because it allowed the

county’s old substandard landfill to operate illegally while

EK Resources’ landfill was being constructed. Indeed, the

cabinet included EK Resources’ proposed landfill in its own

plan for Magoffin County, a plan required by SB 2 because

the county failed to submit a timely, completed plan. (Pet.

45a-46a.) A legal challenge to the contract for the pro-

posed landfill entered between EK Resources and the

Magoffin Fiscal Court hindered the county’s timely comple-

| tion of a plan. (Pet. 45a.) The legal challenge, as well as

changes in the membership of the fiscal court, led to a

| stalemate among those members and ultimately a county

decision not to host a landfill] at all. Id.

The landfill contract initially entered between EK Re-

sources and the Magoffin County Fiscal Court in Decem-

ber 1991 was ultimately struck down by the Kentucky

| Supreme Court as violating the Kentucky Constitution,

because of the county’s failure to allow public notice and

competitive bidding on the contract. Eastern Kentucky Re-

sources v. Arnett, 934 S.W.2d 270 (Ky. 1996). If the Ken-

tucky Supreme Court had instead affirmed the contract,

EK Resources would be proceeding to site the landfill as

proposed. This demonstrates conclusively that SB 2 is not

the source of EK Resources’ difficulties. Indeed, EK Re-

sources’ failure to follow the Kentucky Constitution in con-

tracting with the county, and its unsuccessful SLAPP suit

against local citizens who challenged the contract, provide

more than an adequate explanation for its landfill siting

woes. See, Eastern Kentucky Resources v. Arnett, 892

S.W.2d 617 (Ky. App. 1995).

The Sixth Circuit reached a very different conclusion

than the one EK Resources submits in its Statement of the

Case. Of the events surrounding EK Resources and its

en

6

efforts to site a new landfill in Magoffin County, the Sixth

Circuit stated:

When the Cabinet rejected the County’s area plan and

rewrote a plan for the County, the Cabinet itself sug-

gested that the County use EKR’s proposed landfill.

However, the contract between EKR and the County

was later declared invalid, the composition of the Fis-

cal Court changed, and the new members decided to

do the expedient and not build a landfill at all in

Magoffin County. These events were most likely the

predominant, if not the only reasons, why EKR did

not succeed. (Pet. 25a.)

As the Sixth Circuit concluded in reviewing the facts EK

Resources presented, “[t]he Commerce Clause is not a safety

valve for those who are simply political process losers”.

(Pet. 24a.)

REASONS FOR DENYING THE WRIT

I. The Case Turned on a Question of Fact, Not

Constitutional Law; The Sixth Circuit Correctly

Applied Supreme Court Precedents and Issued

an Opinion Consistent With Those Precedents

and the Opinions of Other Circuits.

The Commerce Clause states that Congress shall have

the power “[t]o regulate Commerce with foreign Nations,

and among the several States, and with the Indian Tribes.”

U.S. Const., art. 1, § 8, cl. 4. The Supreme Court has

established a “dormant” component of the Commerce

Clause, which limits a state’s ability to pass laws that

impermissibly interfere with the flow of interstate com-

merce. H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525,

535 (1949). If state legislation discriminates against inter-

state commerce, it violates the dormant component of the

Commerce Clause unless the state or local government

shows the discrimination is demonstrably justified by a

valid factor unrelated to economic protectionism. City of

7

Philadelphia v. New Jersey, 437 U.S. 617 (1978); New En-

ergy Company of Indiana v. Limbach, 486 U.S. 269, 274

(1988). Discrimination is defined as differential treatment

based on the origin of the article of commerce. City of

Philadelphia, 437 U.S. at 627-8. However, statutes which

regulate evenhandedly and have only indirect effects on

commerce are upheld unless the burdens are “clearly ex-

cessive in relationship to the putative local benefits.” Pike

v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).

Garbage is an article of commerce protected by the Com-

merce Clause. See, City of Philadelphia, 437 U.S. at 622.

However, garbage has no economic value; it only has value

in the marketplace because of government regulations to

ensure its proper disposal as a health and safety measure.

Thus, unlike the classical “widgets,” garbage has a public

health and safety component requiring government inter-

vention. That is the genesis of all solid waste manage-

ment programs, from collection to disposal. There is a

delicate balance between the police power, legitimately ex-

ercised to enforce proper management of garbage as a po-

tential health hazard, and the marketplace that delivers

this service. This is the reason for the series of waste

management-related cases decided under the Commerce

Clause since City of Philadelphia.

There are two categories of waste management-related

regulation that constitute economic protectionism requir-

_ ing strict scrutiny under the Commerce Clause. The first

occurs when foreign waste is banned or restricted while

local waste is not, or when a scarce local resource is hoarded

for local use, such as when landfill space is reserved for

local waste. See, e.g., City of Philadelphia, 437 U.S. at

624. The second occurs when a preferred local business is

protected against foreign competition, such as when all

local waste must be delivered to a local waste disposal

facility. See, eg., C & A Carbone, Inc. v. Town of

8

Clarkstown, N.Y., 511 U.S. 383 (1994). This is known as

“flow control,” and is essentially a local processing require-

ment. Id.

However, economic protectionism is not created by the

evenhanded regulation of commerce. If a statute treats

commerce evenhandedly, then the statute is entitled to

review under the Pike balancing test. Pike v. Bruce Church,

397 U.S. at 142. One type of evenhanded treatment exists

when the requirement simply excludes everyone from the

marketplace. See, Exxon Corp. v. Governor of Maryland,

437 U.S. 117 (1978) (upholding a Maryland statute under

the Commerce Clause that prohibited all petroleum pro-

ducers and refiners from owning retail stations); Minne-

sota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981)

(upholding a Minnesota statute under the Commerce Clause

that prohibited the sale of milk in plastic, non-returnable

containers). Another type of evenhanded treatment exists

when a local requirement is applied across the board to

everyone participating in the marketplace. Old Bridge

Chemicals, Inc. v. New Jersey Dep’t of Environmental Pro-

tection, 965 F.2d 1287 (3d Cir. 1992) (state recycling code

for hazardous waste by products), cert. denied, 506 U.S.

1000 (1992); Kleenwell Biohazard Waste and General Ecol-

ogy Consultants, Inc. v. Nelson, 48 F.3d 391 (9th Cir. 1995)

(certificate of need for all solid waste transporters), cert.

denied, 515 U.S. 1143 (1995); Blue Circle Cemeni v. Bd. of

County Comm’rs, 27 F.3d 1499 (10th Cir. 1994) (zoning

ordinance applicable to all hazardous waste sites). Fur-

ther, in waste management-related cases this Court has

expressly noted that states may act to slow the flow of all

waste or to place evenhanded caps on landfills. City of

Philadelphia, 437 U.S. at 626; Chemical Waste Manage-

ment, Inc. v. Hunt, 504 U.S. 334, 345 (1992). Accord, Cham-

bers Medical Technologies of S.C., Inc. v. Bryant, 52 F.3d

1252 (4th Cir. 1995) (upholding a fluctuating cap on the

total amount of infectious waste an incinerator may

accept).

9

In challenging the constitutionality of a state statute,

EK Resources bears a heavy burden. Statutes should be

construed whenever possible so as to uphold their consti-

tutionality. U.S. v. Vuitch, 402 U.S. 62, 70 (1971). Those

who would challenge bona fide state safety regulations us-

ing the Commerce Clause must overcome a strong pre-

sumption of validity. Kassel v. Consolidated Freightways

Corp. of Delaware, 450 U.S. 662, 670 (1981). Thus, while

EK Resources charges that the Sixth Circuit erred in ap-

plying the balancing test instead of the per se test, it fails

to acknowledge the factual predicate for imposing strict

scrutiny under the per se test: Discrimination, the differ-

ential treatment of an article of commerce based on its

origin, must exist. Oregon Waste Systems v. Dep’t of Envi-

ronmental Quality of Oregon, 511 U.S. 93 (1994); Pike v.

Bruce Church, 397 U.S. at 142; City of Philadelphia, 437 |

U.S. at 627-8. The burden is on the challenger to demon-

strate the existence of differential treatment. Hughes v.

Oklahoma, 441 U.S. 322, 336 (1979). It is this evidentiary

burden that EK Resources did not carry.

Thus, EK Resources is in reality asking for the Su-

preme Court to issue a writ of certiorari to the Sixth Cir-

cuit for the purpose of overturning allegedly erroneous

findings of fact, and not for any compelling reason. Fur-

ther, the Sixth Circuit affirmed the findings of fact made

by the district court. This Court need not review those

concurrent findings of fact, since no “extraordinary reason

for undertaking this task” exists. Goodman v. Lukens Steel

Co., 482 U.S. 656, 665 (1987). For that reason, the peti-

tion should be denied.

A. Ek Resources Did Not Prove That Senate Bill 2

Was Enacted With a Discriminatory Purpose.

EK Resources asks the Supreme Court to hold that SB

; 2 has a discriminatory purpose, yet it offers no direct evi-

) dence of a discriminatory purpose. Moreover, in its discus-

10

sion of discriminatory purpose, EK Resources offers no le-

gal authority explaining how the Sixth Circuit either mis-

applied Supreme Court precedent or contradicted opinions

issued by other circuits. Further, EK Resources ignores

the opinions issued by the Second and Eighth Circuits in

reviewing solid waste-related statutes for a discriminatory

purpose.

In framing this argument, EK Resources equates pur-

pose to motive. It is questionable whether motive can be

so equated, since without other evidence of discrimination,

evidence of motive is of limited probative value. See, e.g.,

Hunt v. Washington State Apple Advertising Comm’n, 432

U.S. 333, 352 (1977); Gary D. Peake Excavating, Inc. v.

Town Bd. of Hancock, 93 F.3d 68, 74 (2d Cir. 1996). In-

deed, as the Sixth Circuit noted, articulated legislative ob-

jectives are the actual purposes of a statute, and those

words are often sufficient in and of themselves to deter-

mine those purposes, citing Perry v. Commerce Loan Co.,

383 U.S. 392, 400 (1966); Clover Leaf Creamery Co., 449

U.S. at 463, 471 & nn.7, 15. (Pet. 19a.) Thus, KRS 224.43-

010, stating the purpose of SB 2, is adequate evidence to

establish legislative purpose. Yet the Sixth Circuit did

review the additional evidence EK Resources presented,

and concluded, as did the district court, it did not support

the premise that SB 2 was enacted with “bad motive”.

(Pet. 20a-22a, 53a-55a.)

EK Resources tenders as proof that SB 2 was enacted

with a discriminatory purpose a 1990 University of Ken-

tucky study commissioned by then-Governor Wallace

Wilkinson. This study could not have been “a blueprint”

for Kentucky to discriminate against out-of-state garbage,

since there is no evidence in the record that then-Governor

Wilkinson had any influence over the contents of the study,

that the study influenced the vote of any legislator in en-

acting SB 2, or even that then-Governor Wilkinson ap-

pointed the University of Kentucky’s president. (Pet. 21a.)

11

EK Resources attempts to bolster the evidence presented

below by making these unsupported statements. Such

statements not supported by the record should be disre-

garded. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158

(1970).

The study was hardly a blueprint for discrimination,

even if it had been relied upon. Instead it examined many

solid waste management issues, such as those related to

open dumping, garbage collection, recycling, landfill de-

sign and capacity, local planning, and public participation.

It does not focus on public opposition to out-of-state gar-

bage, and where the issue is examined, the study cautions

that there is a duty to comply with the Commerce Clause

and the judicial precedents interpreting it. (Pet. 53a.)

Similarly irrelevant are the opinions of the later-elected

governor, Brereton Jones, and later-elected county judge-

executive, Charles Hardin, since there is no evidence in

the record that their opinions influenced the actions of the

Kentucky legislature in enacting SB 2, or the actions of

the cabinet in administering it. (Pet. 54a.) In an attempt

to correct this deficiency in the evidence, EK Resources

proffers as evidence a footnote in a law review article, in

which the author claims familiarity with the enactment of

SB 2, and asserts that the working premise of that

legislative session was that local landfills could preserve

local landfill space for local use through capacity assurance.

The author was not a legislator, and even if he were, in

construing Kentucky statutes the courts do not inquire

into the motives that impel legislative action either before

or after such action is taken. Morrow v. City of Louisville,

249 S.\W. 721, 724 (Ky. 1952). Further, since under SB 2

Kentucky counties are not allowed to reserve local landfill

space for local use, the author’s assertion is simply

erroneous.

The evidentiary weaknesses are best illustrated by EK

Resources’s failure to present the “bad motive” case it re-

12

lied on below, SDDS, Inc. v. South Dakota, 47 F.3d 263

(8th Cir. 1995). In SDDS, the Eighth Circuit invalidated a

South Dakota statute requiring a referendum on environ-

mental issues before any large landfill could be constructed,

even though environmental reviews for such landfills were

already conducted by the state environmental protection

agency. Key to the Eighth Circuit’s decision was direct

evidence that the statute was enacted with the purpose of

stopping a large landfill that proposed to accept out-of-

state garbage. By contrast, the Sixth Circuit found no

direct evidence to suggest that SB 2 was enacted to stop

EK Resources’s landfill (or any other any landfill) because

it would accept out-of-state garbage, noting that:

Unfortunately, EKR does not present any such evi-

dence to support its contention that KRS 224.40-315

and KRS 224.43-345 were enacted by the Common-

wealth with the purpose of protecting local economic

actors from interstate competition. .. . When a party

seeks to present circumstantial evidence of discrimi-

natory purpose pursuant to a dormant Commerce

Clause challenge, it is the duty of that party to show

the effect of that evidence on the challenged statute.

(Pet. 21a.)

See, Washington State Apple Advertising Comm’n, 432 U.S.

at 351-53; Peake Excavating, Inc., 93 F.3d at 74.

EK Resources bore th burden of demonstrating that

SB 2 has a discriminatory purpose, and as the Sixth Cir-

cuit correctly held, EK Resources failed to present the evi-

dence necessary to carry that burden. See, Hughes v.

Oklahoma, 441 U.S. at 336. (Pet. 20a, 22a.) The motive

argument EK Resources advances in its petition is nothing

more than a plea for the Supreme Court to re-examine the

evidence presented below. Such a re-examination is not

worthy of a writ of certiorari.

13

B. Ek Resources Did Not Prove That Senate Bill 2

Discriminates in Practical Effect.

EK Resources asks the Supreme Court to hold that SB

2 discriminates in practical effect. While EK Resources

seeks to persuade that the Sixth Circuit ignored Supreme

Court precedents and created a new rule contradicting those

precedents, in reality the Sixth Circuit simply applied those

precedents to the facts. In its petition EK Resources at-

tempts to manufacture a legal issue out of an issue of fact,

after it failed to place the necessary facts into evidence.

EK Resources argues that the 118 area solid waste

management plans demonstrate that SB 2 discriminates

in practical effect, stating that 85 of those 118 plans “pro-

vide no capacity whatsoever for out-of-area (and thus out-

of-state) waste.” (Pet. 11.) What EK Resources does not

state is that those same counties also do not have capacity

for local garbage. They do not have capacity for anyone

because they do not host a new landfill and they market

their garbage elsewhere. After examining all of the 118

plans, both the Sixth Circuit and the district court found

no discrimination because the amount of out-of-state gar-

bage imported to Kentucky doubled after enactment of SB

2, despite the fact that the number of Kentucky landfills

decreased. (Pet. 25a, 51a.) The Sixth Circuit also found

persuasive the fact that landfill capacity is double

Kentucky’s projected needs over the next decade, meaning

half of that capacity is reserved for out-of-state garbage.

(Pet. 25a.)

EK Resources cites Dean Milk Co. v. City of Madison,

340 U.S. 349 (1951); Brimmer v. Rebman, 138 U.S. 78

(1891); and GSW v. Long County, 999 F.2d 1508 (11th Cir.

1993), in support of its argument that SB 2 discriminates

against interstate commerce because even though in-state

economic interests are burdened, out-of-state economic in-

terests are also burdened. However, the cases cited are

14

local barrier cases. In each, a local product (milk in Dean

Milk, meat in Brimmer, garbage in GSW) was favored over

foreign products, and each local requirement, while it may

not have discriminated at the state line, did discriminate

at the county line or at some other line dividing local from

foreign interests. By contrast, under the Kentucky stat-

utes there is no barrier dividing a local interest from a

foreign interest, because there is no local landfill. Either a

local planning area hosts a landfill within its borders and

sets an evenhanded, origin-neutral cap, or it does not host

a landfill and the local garbage is marketed elsewhere.

Governments have the ability simply to eliminate a mar-

ket by virtue of legislation, as long as it is evenhanded and

local producers are not favored. See, e.g., Exxon, 437 U.S.

at 127-8; Clover Leaf Creamery, 449 U.S. at 474; U.S.A.

Recycling, Inc. v. Town of Babylon, 66 F.3d 1272 (2d Cir.

1995) (town’s decision to eliminate commercial garbage col-

lection service and to take over that responsibility is even-

handed and not discriminatory), cert. denied, _ U.S. _,

116 S.Ct. 1419, 1384 L.Ed 2d 544 (1996).

Hence, EK Resources must overcome the fact that in

Kentucky all economic interests, whether local or foreign,

are equally burdened. EK Resources attempts to do so by

relying on GSW for the principle that a county violates the

Commerce Clause if it prohibits new landfills and instead

markets its garbage elsewhere. This reliance is misplaced,

because GSW is simply a local barrier case, involving a

contract between a county and a private company to con-

struct a landfill, where the county attempted to renegoti-

ate the contract after its execution to add a 150-mile

geographical limit on garbage disposed at the landfill. The

Eleventh Circuit applied the strict scrutiny of City of Phila-

delphia, 437 U.S. at 624, and said there was no basis for

imposing this new term except for the origin of the waste.

The Eleventh Circuit expressly recognized that the con-

tract could have eliminated all competition, stating:

15

Long County could have decided not to contract for

waste disposal services and not to license a potential

provider of such services without violating the Com-

merce Clause; but once it decided to contract for ser-

vices and then to place a restriction, it cannot escape

constitutional scrutiny. 999 F.3d at 1518.”

While GSW examines the Commerce Clause in the context

of state contracts, it is inapposite because Magoffin County

did not site a local landfill with a geographic limit for the

garbage it could take. GSW does not stand for the proposi-

tion that a decision to use a contract to eliminate all com-

petition violates the Commerce Clause.

Further, EK Resources is not challenging its contract

with Magoffin County in the case sub judice. In fact EK

Resources sought in the state court action to hold the

county to the terms of that contract. Eastern Kentucky

Resources v. Arnett, 934 S.W.2d 270 (Ky. 1996). Any Com-

merce Clause issues presented by that contract were not

before the courts below, and are therefore not before the

Supreme Court. Taylor v. Freeland & Kronz, 503 USS.

638, 645 (1992); Supreme Court Rule 14.1(a). While EK

Resources argues that the contracts e1:tered between other

Kentucky counties hosting landfills a landfill operators

are evidence of discrimination, the reiationship between

those contracts and the evenhande* ~aps on landfill size

set by those counties is also not before this Court. Id.?

2 But see, SSC Corp. v. Town of Smithtown, (2d Cir. 1995) 66

F.3d 502, 515-519 (town is a market participant exempted from

confines of Commerce Clause in contracting for its waste collec-

tion and disposal), cert. denied, __ U.S. __, 116 S.Ct. 911, 133

L.Ed. 2d 842 (1996).

3 The district court reviewed the contracts placed into the record.

It concluded that any burden they might impose was negated by

the undisputed evidence of Kentucky’s evenhanded treatment of

garbage, and that the contracts were freely negotiated in the

marketplace without the cabinet’s regulatory oversight. (Pet.

51a-52a.)

16

The decision not to host a landfill is simply a decision

to eliminate all competition, since no local competitors or

products are preferred. The Commerce Clause “protects

the interstate market, not particular interstate firms, from

prohibitive or burdensome regulations.” Exxon, 437 U.S.

at 127-8. In authorizing that decision, SB 2 regulates

evenhandedly and the Sixth Circuit correctly reviewed it

by using the Pike balancing test. See, Clover Leaf Cream-

ery, 449 U.S. at 472, Town of Babylon, 66 F.3d at 1286-8.

The Commerce Clause does not mandate that each county

construct a landfill. As the Sixth Circuit held, “we em-

phatically reject that argument”. (Pet. 24a.)

C. Because EK Resources Did Not Prove That

Senate Bill 2 Has Discriminated Against Inter-

state Commerce, This Case Is Distinguishable

From Fort Gratiot and GSW.

EK Resources asks the Supreme Court to hold that the

Sixth Circuit has issued an opinion that conflicts with the

Eleventh Circuit’s opinion in GSW, supra, and abrogates

the precedent set by the Supreme Court in Fort Gratiot

Sanitary Landfill, Inc. v. Michigan Dep’t of Natural Re-

sources, 504 U.S. 353 (1992). Since those cases presented

situations where local regulation erected a barrier, either

at the county line or at a set distance, this case is distin-

guishable on its facts, as the Sixth Circuit correctly con-

cluded.

Kentucky’s program does condition landfill permits on

their relationship to local solid waste management plans.

KRS 224.40-315, KRS 224.43-345. In that respect,

Kentucky’s program is similar to the Michigan solid waste

management program struck down by the Supreme Court

as violating the Commerce Clause in Fort Gratiot. How-

ever, the Kentucky and Michigan programs contain a criti-

cal difference. In Michigan, a county could exclude foreign

garbage from a local landfill by using a local solid waste

17

management plan. In contrast, Kentucky requires local

and foreign garbage to be treated identically. A county

must either host a landfill, in which case garbage must be

accepted regardless of origin (with an evenhanded cap on

capacity), or the county does not host a landfill for anyone,

including itself. KRS 224.43-345(1)(), (m). The Sixth Cir-

cuit compared the Kentucky and Michigan programs and

held that while the Kentucky statute may distinguish be-

tween in-area and out-of-area garbage, it is not a discrimi-

natory distinction because discrimination is the different

treatment of local and foreign economic interests that ben-

efit the former and burden the latter. (Pet.18a.)

Because EK Resources did not carry its burden of prov-

ing the existence of discrimination, the Sixth Circuit cor-

rectly applied the Pike balancing test. 397 U.S. at 142.

Using the Pike test, the Sixth Circuit correctly held that

Kentucky carried its burden to establish that SB 2 fur-

thers legitimate local goals, including the goal of reducing

the amount of garbage generated per person and thereby

slowing the flow of all garbage into landfills. See, Fort

Gratiot, 504 U.S. at 367; City of Philadelphia, 437 U.S. at

626.

Indeed, the Sixth Circuit had difficulty finding even an

incidental burden on interstate commerce, stating:

From the facts presented in this case, it is not clear if

the challenged provisions place any incidental bur-

dens on interstate commerce. As noted supra, both

the County and the Cabinet proposed to use the ser-

vices of a landfill developer—e.g., EK— which clearly

stated, ex ante, that it planned to accept out-of-state

waste at its proposed landfill. The Cabinet did not

appear to believe that the challenged provisions pro-

hibited the acceptance of out-of-state waste into the

Commonwealth. There is no evidence in the record

that the Cabinet objected to the fact that EKR planned

to accept out-of-state waste. EKR does not state what,

18

if any, incidental burdens the Commonwealth’s waste

disposal program places on interstate commerce. Con-

sequently, based upon the record before us, we find

that the Commonwealth’s clearly legitimate goals out-

weigh the burdens, if any, that are placed upon inter-

state commerce. (Pet. 27a.)

EK Resources is really asking this Court to convert the

Commerce Clause from a shield protecting interstate com-

merce to a sword mandating state and local governments

to open a local market that would otherwise be closed to

all. Yet the decision to allow counties to eliminate all

competition is evenhanded in its administration and ben-

efits no local competitor while burdening others. See, Exxon,

437 U.S. at 127-8; Clover Leaf Creamery, 449 U.S. at 472.

Hence, the decision is reviewed under the Pike, supra, bal-

ancing test, as the Sixth Circuit correctly concluded. See,

Town of Babylon, 66 F.3d at 1286-8.

CONCLUSION

Kentucky’s municipal solid waste management program

does not benefit local garbage by burdening foreign gar-

bage, or protect a local landfill operator against competi-

tion from foreign landfill operators. It does not preserve

landfill space for local use, require local processing, or erect

a geographic barrier. The undisputed evidence is that gar-

bage is moving freely into and out of Kentucky, while the

Kentucky program is accomplishing the legitimate local

goal of reducing garbage generated per person and slowing

Kentucky’s reliance on landfills. EK Resources has not

succeeded in siting a new landfill in Magoffin County, but

neither has anyone else. This does not render constitu-

tionally infirm a statewide program that treats all garbage

identically, regardless of origin. The Commerce Clause

does not prevent a state solid waste management program

from eliminating a local market in its entirety. The peti-

tion for a writ of certiorari should be denied.

19

Respectfully submitted,

KATHRYN M. HARGRAVES

Counsel of Record

KATHRYN R. MATHENY

KAREN HARPENAU RIPPY

Natural Resources and Environmental

Protection Cabinet

Office of Legal Services

Fifth Floor, Capital Plaza Tower

Frankfort, Kentucky 40601

(502) 564-5576

Counsel for Respondents Paul E. Patton,

Governor of the Commonwealth of

Kentucky, and James E. Bickford,

Secretary of the Natural Resources and

Environmental Protection Cabinet

APPENDIX

i i ee

es Ee oT re a Tie

la

APPENDIX A

224.43-345 CONTENTS OF AREA SOLID WASTE

MANAGEMENT PLAN — APPROVAL BY CABINET

(1) Each area solid waste management plan shall be

prepared in accordance with administrative regulations to

be adopted by the cabinet and shall be required to include

the following:

(a) Identification of the area that will be included in

the plan;

(b) A demographic study of the planning area of cur-

rent and projected populations five (5), ten (10) and twenty

(20) years in the future. A projection of the amount and

source of solid waste generated and requiring disposal at

municipal solid waste disposal facilities for each of these

time periods shall be provided;

(c) An inventory and description of all existing solid

waste management facilities and activities. The descrip-

tion shall include their identity, location, life expectancies,

ownership, cost to the users, and level of compliance with

state and federal laws. The description is not required to

include any solid waste management facility which is op-

erated exclusively by a solid waste generator on property

owned by the solid waste generator for the purpose of ac-

cepting solid waste from the solid waste generator or waste

generated at another facility owned and operated by the

generator or wholly-owned subsidiary. After commencement

of operation by a solid waste generator of a solid waste

disposal facility which is permitted but not included in a

solid waste management plan, an amendment to a solid

waste management plan shall be required for any solid

waste which is to be no longer disposed by the solid waste

generator in its own solid waste disposal facility;

(d) An estimate of the area’s long-range needs for solid

waste management and facilities for five (5), ten (10), and

twenty (20) years into the future;

(e) Identification and assessment of current and future

solid waste management problems faced by the area. List

2a

any deficiencies with existing solid waste management fa-

cilities in meeting current and future area needs, and iden-

tify opportunities for improvement;

(f) Outline short-term, mid-term, and long-term goals

and objectives of the solid waste management area. The

goals and objectives shall be consistent with state policies;

(g) Based on the problems, needs, goals, and objectives

previously identified, identify alternative approaches to solid

waste management and select the optimal alternatives.

Solid waste management activities and facilities to be ad-

dressed include:

1. Identification of those regulations and ordinances

which provide for proper, safe, and sanitary management

of solid waste;

2. A description of proposed improvements to existing

solid waste collection and transportation systems;

3. Establishment of a siting procedure and develop-

ment program to assure the orderly location, development,

and financing of new or expanded municipal solid waste

management facilities. Tuc plan shall demonstrate how all

persons in the planning area will within the near future

have reasonable opportunity to dispose of their waste in a

manner that complies with state and federal laws;

4. Identification of planned programs for the control

and cleanup of litter and open dumps. The programs shall

include: a schedule for the cleanup of illegal open dump

sites which will result in the cleanup of those sites within

one (1) year of cabinet approval of the plan; an annual

survey of the county to discover new sites which shall then

be scheduled for cleanup within one (1) year; and mea-

sures to prevent the recurrence of dumping at sites which

are cleaned up;

5. An assessment of opportunities to reduce the need

for land disposal by banning grass clippings, leaves, and

other yard wastes from municipal solid waste disposal fa-

cilities and the institution of composting operations for

grass clippings, leaves, and other yard wastes;

a ee

3a

6. Establishment of a plan to reduce the need for land

disposal through waste reduction and recycling, materials

recovery, and energy recovery and the provision of oppor-

tunities for recycling that may include, but are not limited

to, drop-off centers or door-to-door collection. Where recy-

cling or material recovery is not deemed feasible, specific

factual analysis shall be provided to support the conclu-

sion; and

7. A description of any proposed recycling, materials

recovery, or energy recovery plan or facility;

(h) A five (5) year schedule and description of activities

to be undertaken to implement the proposed plan;

(i) A description of short-term costs of the plan includ-

ing capital and operational costs on a per ton and per

capita basis for each element of the plan, and the identifi-

cation of the means of financing plan implementation;

(j) Designation of the governing body for implementa-

tion of the solid waste management plan or components of

the plan. A description of its responsibilities and authority

shall be provided;

(k) A description of proposed surveillance and enforce-

ment procedures to assure that solid waste in the planning

area is properly managed. Identification of modifications

to local laws and regulations necessary to implement the

area plan;

(1) Specific provisions to assure that adequate capacity

for a ten (10) year period shall be available for municipal

solid waste generated in the solid waste management area,

and identification of any additional capacity authorized for

disposal of out-of-area municipal solid waste;

(m) Contractual agreements for use of waste disposal

capacity at any municipal solid waste disposal facility in-

side or outside the waste management area identified and

relied upon in the plan;

(n) Provisions to assure achievement of reductions in

municipal solid waste requiring disposal, consistent with

the goals of KRS 224.43-010;

4a

(o) Establishment of a public information and partici-

pation process including the following components;

1. Formation of an advisory committee comprised of

local residents, and business and industry representatives;

2. Preparation of a draft plan for public notice and

comment;

3. Convening of a public hearing upon request; and

4. Publication of a response to public comments.

(2) The solid waste management plan shall consist of

two (2) parts. The first part shall contain the information

described in subsection (1a) through (1d) and (1)1) of

this section and shall be submitted to the cabinet by Octo-

ber 1, 1991. The second part shall contain the information

described in subsection (1a) through (1)0) of this section

and shall be submitted to the cabinet by January 1, 1993.

The cabinet shall approve or disapprove the first part of

the plan within thirty (30) days of receipt, and the second

part of the plan within one hundred twenty (120) days of

receipt.

224.43-010 POLICY AND PURPOSE — PRIORITIES

FOR SOLID WASTE MANAGEMENT PRACTICES —

MUNICIPAL SOLID WASTE DISPOSAL REDUCTION

GOAL

(1) It is hereby declared to be the policy of this Com-

monwealth and the purpose of this chapter to provide for

the management of solid waste, including reduction, col-

lection, transportation, and disposal in a manner that will

protect the public health and welfare, prevent the spread

of disease and creation of nuisances, conserve our natural

resources, and enhance the beauty and quality of our envi-

ronment.

(2) It is the policy of the Commonwealth to limit and

reduce the amount of solid waste disposed in municipal

solid waste disposal facilities in the Commonwealth and to

encourage a regional approach to solid waste management.

(3) It is the policy of the Commonwealth that a compre-

hensive and integrated waste management system to

5a

handle solid waste is to be fostered. State policies and

funding assistance shall reflect a preference for solid waste

management practices according to the following priority:

(a) Reduction in the amount of waste generated;

(b) Reuse of solid waste;

(c) Waste recycling or yard waste composting;

(d) Resource recovery through mixed municipal solid

waste composting or incineration;

(e) Land disposal in publicly-owned landfills or incin-

eration of solid waste without energy recovery; and

(f) Land disposal in landfills other than publicly-owned

landfills.

(4) It is further the goal of this Commonwealth that the

amount by weight of municipal solid waste disposed at

municipal solid waste disposal facilities shall be reduced

by a minimum of twenty-five percent (25%) by July 1, 1997,

as compared to fiscal year 1993 on a statewide per capita

basis. However, credit shall be given for reductions achieved

prior to 1993 when accurate measurements are available.

The reduction goal shall not apply to special wastes as

designated by KRS 224.50-760 or industrial solid waste.

224.40-315 REQUIREMENTS FOR ACCEPTANCE

AND APPROVAL OF PERMITS TO CONSTRUCT OR EX-

PAND MUNICIPAL SOLID WASTE DISPOSAL FACIL-

ITY

(1) No permit to construct or expand a municipal solid

waste disposal facility shall be accepted for processing by

the cabinet unless the application contains a determina-

tion from the governing body for the solid waste manage-

ment area in which the facility is or will be located con-

cerning the consistency of the application with the area

solid waste management plan submitted under KRS 224.43-

345(1)(a) to (d) and (1) until January 1, 1993, and the en-

tire plan after January 1, 1993. The governing body for the

area shall, within sixty (60) days of receipt of a written

request, make the determination after public notice and

opportunity for public comment and public hearing. For

6a

applications with a notice of intent filed prior to February

26, 1991, the cabinet shall continue to process the applica-

tion but no permit shall be approved until the governing

body for the solid waste management area in which the

facility is or will be located has made a determination in

accordance with this section.

(2) No permit to construct or expand a municipal solid

waste disposal facility shall be approved unless the appli-

cant affirmatively demonstrates and the cabinet makes a

written finding in the preliminary determination made pur-

suant to KRS 224.40-310(2) that the application conforms

to and is consistent with all of the following:

(a) The capacity needs identified in the area solid waste

management plan;

(b) Other elements of the area solid waste management

plan, for permit applications filed after approval of those

elements;

(c) The statewide solid waste reduction and manage-

ment plan, for permit applications filed after completion of

the plan; and

(d) Applicable zoning regulations adopted pursuant to

KRS Chapter 100.

(3) If the cabinet approves a permit to construct or

expand a municipal solid waste management facility after

the governing body for the area has determined the appli-

cation to be inconsistent with the area solid waste man-

agement plan, as part of the written finding the cabinet

shall state in detail the reasons why it did not accept the

determination of the governing body for the area.

(4) For the purposes of this section, the term municipal

solid waste disposal facility includes, in addition to those

facilities defined in KRS 224.01-010(15), any residual or

contained landfill or incinerator disposing of industrial solid

waste for a fee, but does not include a waste site or facility

which is operated exclusively by a solid waste generator on

property owned by the solid waste generator which accepts

only industrial solid waste from the solid waste generator

or industrial solid waste generated at another facility owned

and operated by the generator or wholly-owned subsidiary.