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Is Your Local Solid Waste Ordinance Illegal?

February 1, 2019Articles

I’m working on the approval or expansion of four North Carolina landfills (Municipal Solid Waste, Construction & Demolition and Land-Clearing and Inert Debris) and five if you count a coal ash landfill whose application has run its course. In two of these five jurisdictions, several sections of the local solid waste ordinance are illegal and unenforceable.

Why?

Because local authorities attempt to regulate matters exclusively delegated to the State for regulation by the Environmental Management Commission and North Carolina Department of Environmental Quality. The legal principle is called “preemption.”

City and county ordinances are considered inconsistent with state or federal law when the ordinance “purports to regulate a field for which the state or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation.” N.C. Gen. Stat. §160A-175(b)(5).

Courts will look first at the statutory language to determine whether the General Assembly has demonstrated a “clear legislative intent” to create a “complete and integrated regulatory scheme.” Craig v. County of Chatham, 356 N.C. 40, 45, 565 S.E.2d 172, 176 (2002). See also Granville Farms, Inc. v. County of Granville, 170 N.C. App. 109, 612 S.E.2d 156 (2005).

The North Carolina legislature incorporated classic preemption language when it enacted G.S. 130A-294 (Solid Waste Management Program): “The Department is authorized to . . . establish a statewide solid waste management program . . . and shall have authority to [d]evelop a comprehensive program for the safe and sanitary practices for management of solid waste.”

The statute further provides that “[t]he Commission shall adopt and the Department shall enforce rules to implement a comprehensive statewide solid waste management program.” Similar language is repeated in other sections of the statute. The legislature’s intent to “preempt the field” for solid waste management could not be clearer.

In one of the jurisdictions I’m working in, the county ordinance purports to grant the county authority to approve, oversee and monitor landfill closure. In another other jurisdiction, the county believes it has the authority to issue landfill permits after a local government employee – in the absence of rules or standards – has developed a personal opinion as to whether the applicant “will perform solid waste/recycling collection in an efficient and sanitary manner.”

Can county authorities do that? Of course not. But they can perform the local functions related to solid waste that are expressly delegated by statute, as long as they exercise those functions according to law.

Sometimes it’s more expedient to ignore such illegal provisions, grit your teeth and comply.

But in other circumstances, illegally assumed local powers can be showstoppers, the reasons for substantial delay or cost tens if not hundreds of thousands of dollars. In those circumstances, a declaratory judgment action may be necessary.

Declaratory judgment actions are relatively quick and straightforward legal proceedings where a local superior court judge is asked to decide whether a local ordinance is valid, applicable or enforceable. Litigation “discovery,” the time-consuming and high-cost stage of lawsuits, is typically limited to a review of the jurisdiction’s ordinance.

For 34 years I have advised my clients to never litigate for the sport of litigation. But when you have no choice, seek judicial review without being timid. This is why we have courts. Whether to litigate or to ignore the illegal ordinance is a matter of business judgment.

Tom Terrell is a partner with Fox Rothschild in its Greensboro, North Carolina office. He has represented clients in matters related to more than 35 solid waste facilities (industrial, MSW, C&D, LCID, recycling and composting). For any questions about the article or related issues, contact Tom at [email protected] or 336.378.5412.