The Right Side of the Tracks: EPA Stands Up for Interstate Commerce and National Hazardous Waste Management Infrastructure

By now, we all are familiar with the furor over the derailment of chemical-laden rail tanker cars in East Palestine, Ohio. Locals understandably pushed for immediate cleanup to reduce the risk to their health and the longer-term environmental impacts of the toxins released into the environment. As required by federal and state environmental law and ordered by the EPA, the railroad has engaged contractors to clean up and dispose of the spilled toxins and will be responsible for the damages caused by the spill. However, local and state players have hamstrung the railroad’s ability to ship the waste across state lines to disposal facilities outside of Ohio.

Officials from Texas and Michigan have complained about the shipment and disposal of derailment wastes into their states. Indeed, Governor Kevin Stitt of Oklahoma tweeted that he worked to “stop” a shipment of derailment waste to a landfill in Oklahoma. Their statements would lead one to believe that this is the first time hazardous waste disposal facilities have accepted out-of-state wastes for disposal. Nothing could be further from the truth. Waste management companies regularly operate across state lines as part of a robust national waste management infrastructure.

Under the so-called “dormant commerce clause” of the United States Constitution, state and local governments cannot lawfully discriminate against interstate commerce. The Supreme Court has consistently ruled that waste is a “commodity” subject to the commerce clause. Thus, with some exceptions dealing with publicly owned waste facilities, the Court has consistently invalidated state and local laws that discriminate against out of state wastes.

In response to the many complaints and attempts to stall the shipment of waste, on March 17, EPA sent its Alert Regarding Disposal of Material from East Palestine, Ohio Train Derailment Site to state and local officials, effectively telling them not to impede the shipment and disposal of the East Palestine wastes. We applaud the EPA’s willingness to withstand the local pressures to restrict waste shipments and its commitment to the rule of law, particularly the dormant commerce clause. Moreover, we also applaud those state agencies, such as the Indiana Department of Environmental Management, who have publicly confirmed in response to objections from influential lawmakers that it is not within their regulatory authority to prevent hazardous waste disposal facilities from accepting materials for which they are permitted to handle and dispose of.