Virginia Attorney General Mark L. Earley (R) launched a new legal attack today to save the state's restrictions on imported trash by accusing New York City of targeting Virginia as its garbage dump.
Earley argued in a federal court filing that New York City has violated the U.S. Constitution by closing its own landfill, discouraging local dumping and overwhelming the interstate market with thousands of tons a day of garbage.
The attorney general wants to add New York City -- against its will -- as a plaintiff in the court case in which Waste Management Inc., the nation's biggest garbage hauler, and others are seeking to overturn Virginia's new garbage restrictions. The restrictions include a cap on landfill capacity and a ban on garbage barges.
"New York cannot refuse to dispose of its own garbage in New York and then complain that the commonwealth attempts to regulate the disposal in Virginia," Earley said in a statement.
State lawyers hope that making New York a party to the case will give them new leverage to blame the city for trash imports, just weeks after a federal judge ruled that Virginia's new garbage restrictions almost certainly violate the U.S. Constitution's protection of interstate commerce. The judge blocked enforcement of the restrictions while that issue is tried in court.
The move also ratchets up the tension between Virginia and New York after Gov. James S. Gilmore III (R) and Mayor Rudolph W. Giuliani (R) exchanged words over the garbage issue in January.
"Virginia's statutes do not violate the Constitution but merely respond to the flood of garbage produced by New York City's own actions in violation of the Constitution," Earley's statement said.
Giuliani spokeswoman Jennifer Chait declined to comment on the legal filing today. "We have not seen the papers," she said.
Gilmore's move to restrict garbage imports enjoyed almost universal support in the General Assembly and proved popular when pollsters sampled public opinion on the issue. Virginia took in 4.6 million tons of garbage from other states last year, an increase of 43 percent, and it ranks behind only Pennsylvania among the nation's garbage importers.
But the federal courts have frowned on efforts by states to regulate the trash business. The U.S. Supreme Court has said that garbage shipments amount to interstate commerce and deserve protection of the commerce clause of the Constitution, which gives power to regulate such trade to Congress. Efforts to push garbage restrictions through Congress so far have languished.
U.S. District Judge James R. Spencer ruled last month that Virginia's attempts at restricting the garbage business amounted to "crystal clear" violations of the commerce clause and said that they would probably prove unconstitutional.
Earley's move is an attempt to blame New York City for any violations of the commerce clause. New York has plans to close its Fresh Kills Landfill on Staten Island, putting 12,000 tons a day on the garbage market. Virginia's lawyers contend that and other actions show New York is plotting to ship its waste out of state rather than handling the garbage locally.
"It is clear that New York City has targeted our commonwealth and other states for the disposal of its trash," Earley said.
Retired law professor Gary Leedes of the University of Richmond said the argument will be a difficult one in federal court.
"As far as the commerce clause is concerned, I'd say it's definitely a stretch," Leedes said.
CAPTION: Virginia Attorney General Mark L. Earley (R) argues in a federal court filing that New York City is violating the U.S. Constitution by closing its own landfill and putting its trash into the interstate market.