Opinion
No. 91-3693 Summary Calendar.
August 10, 1992.
Meredith H. Lieux, Louisiana Dept. of Environmental Quality and John King, Dept. of Environmental Quality, Office of Legal Affairs, Baton Rouge, La., for defendant-appellant.
Gerald L. Walter and Anne J. Crochet, Baton Rouge, La., for plaintiff-appellee.
Appeal from the United States District Court for the Middle District of Louisiana.
Before REAVLEY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.
Louisiana prohibits the importation, storage, treatment, and disposal on Louisiana soil of hazardous wastes that are generated in foreign nations. LA.REV.STAT. ANN. §§ 30:2190-91 (West 1989). The district court declared that these statutes are unconstitutional intrusions on Congress' dormant commerce power. Chemical Waste Management, Inc. v. Templet, 770 F. Supp. 1142, 1153 (M.D.La. 1991). The Supreme Court recently held that the Commerce Clause prohibits Alabama from exacting a greater hazardous-waste-disposal tax for hazardous materials generated outside Alabama than it does for those generated in state despite Maine v. Taylor, 477 U.S. 131, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986), and the quarantine cases cited by Louisiana in its appeal of this case. Chemical Waste Management, Inc. v. Hunt, ___ U.S. ___, ___, 112 S.Ct. 2009, 2016-17, 119 L.Ed.2d 121 (1992). So we must affirm the district court's decision unless Louisiana presents an argument that was inapplicable to Hunt's facts and prevents operation of the dormant Commerce Clause.
Louisiana argues that Congress, through the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. (RCRA), and the Environmental Protection Agency, authorized Louisiana's entire hazardous waste program as a satisfactory replacement for the federal minimum standards, thus rendering the challenged statutes an exercise of Congress' commerce power rather than an affront to it. But we may only find that Congress has permitted states to legislate in derogation of interstate commerce upon an "unmistakably clear . . . expression of approval by Congress." South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 91-92, 104 S.Ct. 2237, 2242-43, 81 L.Ed.2d 71 (1984). The Fourth Circuit has held that South Carolina failed to present evidence "indicat[ing] an unmistakably clear congressional intent to permit states to burden interstate commerce" in the RCRA. Hazardous Waste Treatment Council v. South Carolina, 945 F.2d 781, 792 (4th Cir. 1991). Nor does Louisiana present any such evidence in this case. In fact, the RCRA could be read to prohibit state hazardous-waste legislation that burdens interstate commerce. See RCRA, 42 U.S.C. § 6926(b) (state hazardous-waste programs must be "consistent with the Federal or State programs applicable in other States"); H.R. REP. No. 1491, 94th Cong., 2d Sess. 30 (1976), reprinted in 1976 U.S.C.C.A.N. 6238, 6268 ("general purpose of having federal minimum standards for hazardous waste disposal, with the option of state implementation of state programs equivalent to the federal program, is (1) it provides uniformity among the states as to how hazardous wastes are regulated . . .").
AFFIRMED.