Waste disposal is an important challenge for America and California, especially in regions such as the Bay Area, where 1.5 million new residents are expected over the next 25 years.

California has long been at the forefront of national efforts to recycle and reduce waste, and dispose of the remaining waste in modern, environmentally sound landfills that produce energy and capture greenhouse gases. 

In 2008, the California Integrated Waste Management Board reported that California diverted 58 percent of its solid waste away from landfills, exceeding the 50 percent diversion rate mandated by state legislation.  This success relies on large, capital intensive, regional landfills that relieve most California communities of the burden of hosting landfills.

This vital infrastructure is now threatened in the Bay Area by the efforts of a handful of local activists to resurrect a quarter-century old Solano County voter initiative that severely limits the importation of solid waste originating outside of Solano County.

If successful, these efforts would effectively close-off Solano County’s valuable landfill capacity to the rest of the region.  While the local initiative, known as Measure E, was passed in 1984, it has not been enforced by Solano County because County leaders and state officials long ago recognized that barring wastes or other commodities at the county line is unconstitutional.

Now, after 25 years, special interest groups have sued the County in an attempt to compel enforcement of Measure E and cripple a major regional landfill Northern Californians depend on.

Measure E draws a barrier at the Solano County line and illegally discriminates against out-of-county waste, in violation of the Commerce Clause of the United States Constitution. Since the Country’s founding, the Constitution has prevented states and localities from imposing territorial barriers to the free movement of articles in interstate commerce, including solid waste, food, commodities and any other article of commerce.

Soon after Measure E was passed, Solano County issued a legal opinion determining that Measure E is illegal.  The Legislative Counsel of California reached the same conclusion in 1992, writing in a legal opinion that “Measure E, adopted by the voters of Solano County, violates the Commerce Clause of the United States Constitution.”

An activist group discovered Measure E in the course of opposing the expansion of the Potrero Hills Landfill, one of the Bay Area’s most important regional landfills that manages waste from across the Bay Area and beyond.

The expansion project – critical to the Bay Area’s continued growth and economic strength – has passed numerous environmental reviews.  By attempting to compel the enforcement of Measure E, the interest groups are hoping to short circuit the expansion of Potrero Hills Landfill by denying the Bay Area access to the Landfill.

If the interest groups are allowed to succeed, hundreds of thousands of residential and commercial customers will face sharply higher prices for waste disposal as they compete for fewer and farther alternative landfills.

The United States Department of Justice and the State of California agree that Potrero Hills Landfill is critical to preserving competition within the waste disposal industry.  Earlier this year, the Department of Justice and California’s Attorney General, Jerry Brown, obtained a federal court order directing the landfill to be sold to maintain competition in the industry when two national waste companies merged.

Measure E would undermine this court order and the competition it protects by closing-off the Potrero Hills Landfill to a significant portion of out-of-county waste and providing a windfall to other area competitors, including the national waste companies that recently merged. Last week, Attorney General Brown filed a friend of court brief arguing that Measure E was unconstitutional and that its enforcement would harm competition in the industry.

Solano County continues to believe that that Measure E is unconstitutional, but the County may be compelled to enforce Measure E if the special interest groups’ state lawsuits are successful.

Faced with a threat of enforcement that undermines their operations, customers and business interests, a coalition of 23 waste management companies has brought a lawsuit in federal court in Sacramento to have Measure E declared illegal.

The waste companies, Solano County and the State of California stand together to protect California’s waste disposal infrastructure and the principle that no county can wall itself off from its neighbors’ goods or garbage.

Jimmy Slaughter, a Washington, D.C. attorney specializing in waste management and constitutional law, represents the coalition of waste companies challenging Measure E in federal court. He can be reached at jslaughter@bdlaw.com