The First Circuit recently addressed whether a municipality may prohibit the beneficial use and disposal of coal ash at landfills within their borders when the state agency has authorized such activities. In AES Puerto Rico, L.P. v. Trujillo-Panisse, No. 16-2052 (1st Cir. May 15, 2017), a coal-fired-power-plant owner, AES-PR, claimed that two municipal ordinances attempting such a prohibition were preempted by federal and commonwealth law and were in violation of the United States and Puerto Rico constitutions. The district court granted summary judgment for the municipalities on AES’s federal claims and declined to exercise jurisdiction over the commonwealth claims.
The First Circuit determined that the ordinances could not be enforced to the extent they directly conflicted with commonwealth law as promulgated by the Puerto Rico Environmental Quality Board (EQB), but reversed summary judgment in favor of the municipalities and remanded for the district court to enter judgment for AES-PR based on its claim of commonwealth preemption. The court reviewed the Resource Conservation and Recovery Act program and its intent to precipitate cooperation among the federal, state, and local governments. After a serious discussion of the delegation of authority to states and the fact that Puerto Rico’s Environmental Quality Board was given authority to manage solid waste (including coal ash) by the commonwealth—unlike the district court—determined that the EQB resolutions (and permits) carry the force of law and its permits allowing disposal in a sanitary landfill supersede a local ordinance prohibiting that disposal. The court pointed out that the commonwealth’s public policy to give municipalities as much autonomy as possible is limited by a higher power and that “a municipality cannot ‘promote and further its own public policy’ if that policy conflicts with Commonwealth law.”
Karen Aldridge Crawford is a partner with Nelson Mullins Riley & Scarborough in Columbia, South Carolina, and Washington, D.C.