In 1978 the state of Michigan enacted its Solid Waste Management Act which required all Michigan counties to develop plans for solid waste disposal. St. Clair County adopted such a plan. A component of that solid waste disposal plan was the requirement than any operator of a solid waste landfill must have a permit for the operation of the landfill. Fort Gratiot (petitioner) held such a permit.

In December of 1988, the Michigan legislature amended the Solid Waste Management Act by adopting two provisions concerning the "acceptance of waste or ash generated outside the county of disposal area." Those amendments, which became effective immediately, provided:

On February 1, 1989, Fort Gratiot was denied a permit for operation of its solid waste landfill by St. Clair County because it accepted up to 1,750 tons per day of out-of-state waste. Fort Gratiot filed suit seeking a declaration that the Waste Import Restriction amendment to the Solid Waste Management Act were unconstitutional (versus the US Constitution) due to the Commerce Clause.

The Commerce Clause is found in Article 1, Section 8, Part 3 of the US Constitution. It provides Congress with the power to "regulate Commerce with foreign Nations, and among the several States." The Commerce Clause has always been interpreted as meaning that commerce within a state or locality is regulated by the state or the locality in which the commerce exists. Congress has no jurisdiction over intrastate commerce. The obverse is also true in that individual states can't regulate interstate commerce. Only Congress has jurisdiction over interstate commerce or commerce that involves transactions between entities in different states.

Due to the ambiguous wording of the Commerce Clause the interpretation of the Clause has been derived from Supreme Court rulings. The US Supreme Court held to a narrow interpretation of interstate commerce, sidelining Congressional attempts to increase the Federal Government's power over interstate commerce, until the late 1930's, early 1940's. President Roosevelt, due to his historic four terms, was able to pack the court with more liberal appointees resulting in the landmark NLRB v Laughlin Steel, 336 US 460 (1940). The effect of this ruling was to determine that intrastate activities may be local in character but still affect interstate commerce and thus be subject to federal regulation.

In United States v Lopez 115 S. Ct. 1624 (1995), the Supreme Court reviewed the Commerce Clause and identified three broad categories of activity that Congress could regulate:

• the regulation of the use of the channels of interstate commerce,
• the regulation and protection of the instruments of interstate commerce or person or things involved in interstate commerce even though the threat may come only from intrastate activities, and
• the regulation of those activities having a substantial relation to or effect on interstate commerce.

The Fort Gratiot decision was made in 1992 but United States v Lopez provides an idea of the basic tests that the Supreme Court applies to Commerce Clause cases.

In Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, the Supreme Court investigated the ability of the states to "advance their own commercial interests by curtailing the movement of articles of commerce, either into or out of the state." The majority opinion stipulates that a state statue that clearly discriminates against interstate commerce is unconstitutional "unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism."

To the majority, the Waste Import Restriction amendment to the Solid Waste Management Act was unconstitutional because it put restrictions on solid waste dumped into county landfills from out of county (including out of state) sources yet provided no restrictions on solid waste generated from within the county going into those same landfills. Thus Dean Milk Co. v Madison, 340 US 349, 71 S.Ct. 295, 95 L.Ed. 329 (1951) in which a challenge to a Madison, Wisconsin, city ordinance prohibiting the sale of milk in Madison which had been processed outside of a five mile radius of the central square was upheld was used to substantiate the majority opinion.

Basically, solid waste producers were compared to milk producers in the majority opinion. Due to the economic barriers of the Waste Import Restriction amendment for non-local solid waste producers, the amendment was declared unconstitutional.

The minority opinion asks the question of whether the Waste Import Restriction amendment was a "protectionist measure" or was it "a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental." In the minority opinion, solid waste is viewed as a special type of regulated commodity hence Dean Milk Co. v. Madison would not apply so long as restrictions that affect interstate movement of solid waste also apply to intrastate movement of similar wastes.

While the Michigan statute applies to waste from outside of the county in which the landfill resides it doesn't apply to waste which is disposed of within the county of origin. One then could ask a question of the minority, "What area of locality should one use to determine if a restriction is truly intrastate and interstate neutral?" In other words if its okay to stop shipments from outside of a county, what about a multi-county region?

Before reading this case, I had considered solid waste disposal to be the selling of landfill space to purchasers who then used it as a storage facility. In other words, the commodity involved in the commercial transaction was storage space and not the actual solid waste.

The use of land has been regulated by the state for years and normally at the local as opposed to the Federal level. If I purchase a plot of land and build a house, the state (primarily local governing bodies) has the authority to regulate how the house is built, building codes, as well as to determine, within a broad range, in what kinds of activities I may indulge through the use of zoning ordinances. A neighborhood may have local covenants which restrict the use of the land as well as control the appearance of the neighborhood.

The amount of landfill space is finite. Could part of a locality's business wooing presentation point to good schools, a well educated workforce, low taxes, and large tracts of landfill space? Can a locality or region restrict the use of its available space to local purchasers of that space so as to increase a landfill's useful life? Can a locality restrict the use of landfill space so as to provide an incentive for out of area businesses to relocate to the locality much as other infrastructure improvements are used as incentives

I believe that the majority opinion and ruling removing the Waste Import Restrictions incorrectly applied the Commerce Clause to this case. I think that landfill space is similar to other types of issues such as medical care for AIDS patients which contain a dimension that supercedes the purely commercial. The question in my mind is how can a society apportion a scarce or costly commodity in a fair fashion.

In Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept of Natural Resources the interests of a commercial enterprise were raised above the interests of the people of the state of Michigan. Fort Gratiot is clearly more interested in maintaining the additional revenue brought in by the 1,750 tons per day of out-of-state solid waste than it is in husbanding the landfill space it is managing. Yet I believe that the landfill space, like many other limited natural resources, must have a different, non-commercial element to the management plan. Such a non-commercial element could include restrictions on the origin of the waste whether through out right denial of space to out-of-state solid waste producers or through a premium paid by out-of-state solid waste producers in order to increase the economic costs of the landfill to the level of the landfills in the area of the out-of-state producer.

The root of the problem is the generation of solid waste in such prodigious quantities. Until industrial and social processes are put in place to address the generation of solid waste, the disposal of solid waste will continue to be a problem. Applying pure business sense to the issue without considering system issues such as quality of life is the wrong way to look at this issue.