Constr Materials Recycling v. Burack CV-08-376-PB 02/25/10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Construction Materials Recycling Association Issues and Education Fund, Inc., and New England Recycling, Inc.

v. Case N o . 08-cv-376-PB Opinion N o .

Thomas Burack, Commissioner, New Hampshire Department of Environmental Services, et al.

MEMORANDUM AND ORDER

The issue presented by this case is whether three recently-

enacted statutes that address the burning of construction and

demolition (“C & D”) debris violate the Commerce Clause either by

improperly discriminating against out-of-state C & D debris

producers or by excessively burdening interstate commerce.

I. BACKGROUND

In 2007, the New Hampshire legislature passed three bills

that address the use and disposal of C & D debris. See Constr.

Materials Recycling Ass’n Issues & Educ. Fund v . Burack,

. House Bill 427, codified at New Hampshire Revised

Statutes Annotated (“RSA”) § 149-M:4, IV-a, re-defined C & D

debris as

non-putrescible waste building materials and rubble which is solid waste resulting from the construction, remodeling, repair or demolition of structures or roads. The term includes, but is not limited t o , bricks, concrete and other masonry materials, wood, wall coverings, plaster, dry wall, plumbing, fixtures, non-asbestos insulation or roofing shingles, asphaltic pavement, glass, plastics that are not sealed in a manner that conceals other wastes, and electrical wiring and components, incidental to any of the above and containing no hazardous liquid or metals. The term does not include asbestos waste, garbage, corrugated container board, electrical fixtures containing hazardous liquids such as fluorescent light ballasts or transformers, furniture, appliances, tires, drums and containers, and fuel tanks.

-M:4, IV-a (2009); (see Compl., Doc.

No. 1 , ¶ 22.) House Bill 428, the companion to House Bill 427,

banned the combustion of “the wood component of construction and

demolition debris . . . or any mixture or derivation from said

component”1 but provided an exception for the “incidental

combustion” of such materials by “municipal waste combustor[s]”

and “municipal incinerator[s]” that were in operation on January

1 When I refer to the burning of C & D debris in this Memorandum and Order, I mean the burning of the wood component of C & D debris or any mixture or derivation from said component.

-2- I , 2006. See

-C:10-c (2009); (Compl.,

Doc. N o . 1 , ¶ 2 3 ) . House Bill 873-FN-LOCAL, codified at RSA 362-

F:2, I I , excluded C & D debris from the definition of “biomass

fuels” that qualify as “renewable energy source[s],” and may be

used in New Hampshire to produce electricity. See

-F:2, II (2009);

-F:2,

XV (2009); (see also Compl., Doc. N o . 1 , ¶ 2 4 ) . Taken together,

these statutes prohibit wood derived from C & D debris from being

burned within the state except for “incidental combustion” at

municipal combustors and municipal incinerators that were in

existence as of January 1 , 2006.

Construction Materials Recycling Association and Education

Fund (“CMRAIE”), a national organization that represents

individuals and companies involved in the reuse of C & D

materials, and New England Recycling, Inc. (“NER”), a

Massachusetts corporation that sells C & D-derived fuel, allege

in this action against Thomas Burack, Commissioner of the New

Hampshire Department of Environmental Services, and Michael

Delaney, the New Hampshire Attorney General (collectively “the

State”) that all three statutes--RSA 149-M:4, IV-a, RSA 362-F:2,

I I , and RSA 125-C:10-c (collectively “C & D legislation”)--

-3- violate the Commerce Clause.2 (See Compl., Doc. No. 1, ¶¶ 6-7;

Pl.’s Opp. to Def.’s Mot. for Summ. J., Doc. N o . 1 6 , at 1 5 , 22.)

Plaintiffs base their claim on two legal theories. First, they

assert that the C & D legislation violates the Commerce Clause

because it improperly discriminates against out-of-state

producers of C & D debris who wish to sell the wood component of

the debris in the local biomass fuel market. They also contend

that the legislation is unconstitutional even if it is not

discriminatory because it imposes an excessive burden on

interstate commerce. The State argues in a motion for summary

judgment that plaintiffs’ claim fails under either theory.

2 Plaintiffs initially sought relief under both the Commerce Clause and the Privileges and Immunities Clause. They also argued that the C & D legislation was preempted by the Solid Waste Act, the Resource Conversation and Recovery Act, and various federal regulations. (See Compl., Doc. N o . 1 , ¶¶ 47-54.) Additionally, plaintiffs sought relief for damages that they incurred as a result of two moratoriums on burning C & D fuels, enacted while the New Hampshire General Court considered the permanent measures that have since been codified as the C & D legislation. (See

.) On November 1 2 , 2008, the State filed a motion to dismiss the plaintiffs’ complaint in its entirety. (See Def.’s Mot. to Dismiss, Doc. N o . 7.) On January 2 7 , 2009, the court granted the State’s motion to dismiss as to plaintiffs’ claims under the Privileges and Immunities Clause, their preemption claims, and their claims challenging the expired moratoriums under the Commerce Clause. See Burack,

1 . Plaintiffs’ Commerce Clause challenge to the C & D legislation is thus their sole remaining claim.

-4- II. STANDARD OF REVIEW

Summary judgment is appropriate when “the discovery and

disclosure materials on file, and any affidavits show that there

is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c). A party seeking summary judgment must first identify

the absence of a genuine issue of material fact. Celotex Corp.

v . Catrett,

(1986). The burden then shifts to

the nonmoving party to “produce evidence on which a reasonable

finder of fact, under the appropriate proof burden, could base a

verdict for i t ; if that party cannot produce such evidence, the

motion must be granted.” Ayala-Gerena v . Bristol Myers-Squibb

Co.,

6 , 94 (1st Cir. 1996); see Celotex,

.

III. ANALYSIS

The Commerce Clause empowers Congress to regulate commerce

“among the several states.” U.S. Const. Art. I , § 8 , c l . 3 .

Although the clause “do[es] not expressly restrain ‘the several

states’ in any way, [the Supreme Court] ha[s] sensed a negative

-5- implication in the provision since the early days.” Dep’t of

Revenue v . Davis, 128 S . C t . 1801, 1808 (2008). This negative

implication, referred to as the dormant Commerce Clause,

“prevents state and local governments from impeding the free flow

of goods from one state to another” and “prohibits protectionist

state regulation designed to benefit in-state economic interests

by burdening out-of-state competitors.” Alliance of Auto. Mfrs.

v . Gwadosky,

0 , 35 (1st Cir. 2005) (internal quotations

omitted); see also Davis, 128 S . C t . at 1808; Cherry Hill

Vineyard, LLC v . Baldacci,

(1st Cir. 2007).

Laws that discriminate against out-of-state interests are

treated differently under the dormant Commerce Clause from laws

that affect interstate commerce even-handedly. “A discriminatory

law is virtually per se invalid . . . and will survive only if it

advances a legitimate local purpose that cannot be adequately

served by reasonable non-discriminatory alternatives.” Family

Winemakers of Calif. v . Jenkins, N o . 09-1169,

(1st Cir. 2010) (quoting Davis, 128 S . C t . at

1808 (internal citations and quotations omitted)). In contrast,

a non-discriminatory law that nevertheless burdens interstate

commerce “will be upheld unless the burden imposed on interstate

-6- commerce is clearly excessive in relation to the putative local

benefits.” Davis, 128 S . C t . at 1808 (quoting Pike v . Bruce

Church, Inc.,

(1970)).

A. Discrimination Claim

In the context of a dormant Commerce Clause challenge,

discrimination “means differential treatment of in-state and out-

of-state economic interests that benefits the former and burdens

the latter.” Family Winemakers,

(quoting Or. Waste Sys. v . Dep’t of Envtl. Quality,

3 ,

99 (1994)). Even a facially neutral law will be considered

discriminatory if it is discriminatory in either its purpose or

its effect. Cherry Hill,

3 . As the First Circuit

has recognized, however, “[i]ncidental purpose, like incidental

effect, cannot suffice to trigger strict scrutiny under the

dormant Commerce Clause.” Alliance of Auto. Mfrs.,

.

Plaintiffs acknowledge that the C & D legislation is

facially neutral because it treats C & D debris generated within

New Hampshire and imported from out of state identically. (Pl.’s

Opp. to Def.’s Mot. for Summ. J., Doc. N o . 1 6 , at 14 n.4.)

Nevertheless, they argue that the legislation’s hidden purpose is

protectionist. As plaintiffs see i t , the legislation was enacted

-7- to benefit New Hampshire’s virgin wood producers in the local

market for biomass fuel at the expense of out-of-state providers

of C & D debris who wish to compete with virgin wood producers.

Plaintiffs also argue that the C & D legislation has a

discriminatory effect even if it was not intended to discriminate

against out-of-state interests because it entirely forecloses

out-of-state C & D debris sellers from competing in the New

Hampshire biomass fuel market. I address each argument in turn.

1. Discriminatory Purpose

Plaintiffs concede that the C & D legislation appears to be

aimed at the protection of the public health and the environment

rather than the promotion of local commerce. (Pl.’s Opp. to

Def.’s Mot. for Summ. J., Doc. N o . 1 6 , at 14 n.4.) Although none

of the three statutes that comprise the legislation include an

express statement of purpose, each amends chapters of the New

Hampshire Revised Statutes Annotated that are primarily concerned

with public health and environmental protection. The stated

purpose of Chapter 125-C, which effectuates the C & D debris

combustion ban, is “to achieve and maintain a reasonable degree

of purity of air resources of the state so as to promote the

public health, welfare, and safety.”

-

C:1 (2009). Similarly, Chapter 149-M, which codifies the current

-8- definition of C & D debris, was enacted “so as to protect public

health, to preserve the natural environment, and to conserve

precious and dwindling natural resources through the proper and

integrated management of solid waste.”

-M:1 (2009). Finally, Chapter 362-F, which excludes C & D

debris from the definition of biomass fuels, makes clear that its

goal is to promote “local renewable fuels” that can “improv[e]

air quality and public health, and mitigat[e] against the risks

of climate change.”

-F:1 (2009).

The structure and effect of the C & D legislation also

supports the State’s contention that it was intended principally

to benefit the public health and the environment rather than to

regulate commerce. I f , as plaintiffs argue, the legislation was

enacted to protect local commercial interests in the biomass fuel

market, one would expect the legislation to be targeted at this

market exclusively. The legislation sweeps more broadly,

however, and bans the combustion of C & D debris whether it is

burned as a fuel or merely to effect disposal.3 Thus, the scope

of the legislation better fits the State’s contention that it was

3 The legislation allows C & D debris to be burned in municipal facilities but it authorizes only “incidental combustion” by municipal combustors and incinerators that were in existence as of January 1 , 2006. § 125-C:10-c.

-9- aimed primarily at public health and environmental protection

rather than the promotion of local commercial interests.

Evidence of this sort, which focuses on the text of the statute

itself, often provides a strong signal of legislative purpose.

See, e.g., Family Winemakers,

(court should consider whether the statute was “‘closely tailored

to achieve the legislative purpose’ the state asserted”)(quoting

Alliance of Auto. Mfrs.,

8 ) ) .

Plaintiffs nevertheless cite legislative history to support

their argument that the C & D legislation’s true purpose was to

protect New Hampshire’s virgin wood producers in the local

biomass fuel market. Most prominently, plaintiffs rely on

Burack’s testimony to the Senate Committee on Energy,

Environment, and Economic Development, in which he advocated for

the adoption of HB 427 and HB 428 by stating, among other things,

“I should also point out that as a department and state, it’s

critically important, we believe, that we promote a more

economically viable and vibrant logging and forest products

industry here in our state.” (Pl.’s Opp. to Def.’s Mot. for

Summ. J. Ex. A , Doc. N o . 16-2, at 10-11.) Plaintiffs claim that

this statement, which was echoed by other supporters of the

legislation, establishes that the legislation’s true purpose was

-10- protectionist. See, e.g., N.H.H.R. Jour. 310 (2007); Senate

Comm. on Energy, Env’t and Econ. Dev., Public Hearing on HB 427

and HB 428, at 20 (statement of Sen. Larsen), 38 (statement of

Mr. McLaughlin), 49 (statement of Rep. Phinizy) (Apr. 2 4 , 2007);

House Comm. on Science, Tech. and Energy, Public Hearing on HB

428, at 1 (statement of Rep. Hamm), 2 (statement of Rep. Phinizy)

(Feb. 7 , 2007).

Although the statements plaintiffs cite suggest that many of

the C&D legislation’s supporters believed that it would benefit

the state’s virgin wood producers, the legislative history as a

whole establishes that the promotion of local business interests

was at most an incidental justification for the legislation.

Plaintiffs acknowledge that the impetus for the C & D legislation

was a permit that a Hopkinton, New Hampshire power plant obtained

in 2003 to burn C & D debris as a fuel source. (Compl., Doc. N o .

1 , ¶ 9.) Plaintiffs assert that after the permit was obtained,

“opponents of the Hopkinton plant began to more strenuously

contend that New Hampshire could become the ‘dumping ground’ for

construction and demolition debris from throughout the Northeast,

and contended that burning of C and D fuel was unhealthy due to

toxic air emissions, and that allowing New Hampshire to become a

‘dumping ground’ would exacerbate a public health problem.”

-11- (Compl., Doc. No. 1, ¶ 15.)

Bills were later introduced in both the House and the Senate

that called for the creation of a joint legislative committee to

study various issues associated with the disposal of C & D

debris. See N.H.H.R. Bills, HB 517 (2005); N.H.S. Bills, SB 215

(2005). The House bill also proposed a moratorium on the burning

of C & D debris within the state. See HB 517. Both bills were

ultimately adopted, along with a third bill filed the following

year to extend the moratorium. See

;

;

. Significantly, the legislative

histories of these laws include many references to the adverse

public health and environmental effects of burning C & D debris,

but they make no mention of the commercial benefits that a ban on

the burning of C & D debris might produce for local virgin wood

producers.4 See, e.g., House Comm. on Env’t and Agric., Public

4 Plaintiffs point to the joint study committee’s final report to support their contention that the “underlying ultimate objective” of any proposed burning ban was to prevent the importation of C & D debris from out of state. (Pl.’s Opp. to Def.’s Mot. for Summ. J., Doc. N o . 1 6 , at 9.) In particular, they cite the following excerpt from the report’s executive summary:

should New Hampshire approve a policy of incineration of C & D wood within this state, it would not be able to ban importation according to the Interstate Commerce Clause. Since the cost to ship C & D wood chips is a

-12- Hearing on HB 517, at 1 (statement of Rep. Phinizy), 2 (statement

of Dr. Bassi) (Feb. 1 7 , 2007); Senate Comm. on Energy and Econ.

Dev., Hearing on H.B. 517, at 3 (statement of Rep. Hamm), 10

(statement of Rep. Butynski), 20 (statement of Dr. Bassi), 34

(statement of M s . Irwin) (May 1 7 , 2005); Comm. to Study Certain

Issues Relative to Constr. and Demolition Waste, Final Report on

HB 517, Chapter 205, Laws of 2005, at 1 (July 1 , 2006)

(“Safeguarding our public health and our environment should

remain at the forefront when deciding on a C & D management

policy for New Hampshire.”).

The legislative history of the C & D legislation itself

major factor in the economics of C & D disposal and processing, it is likely that an undeterminable amount of C & D wood could be imported into New Hampshire, rather than Maine, for incineration.

(Id.) I am unpersuaded by this argument. As the report itself makes clear, the excerpt plaintiffs cite merely reflects advice that the Committee received from the Attorney General that the state could not selectively ban the importation of C & D debris. See Comm. to Study Certain Issues Relative to Constr. and Demolition Waste, Final Report on HB 517, Chapter 205, Laws of 2005, at 10 (July 1 , 2006). The C & D legislation addresses this concern by barring C & D debris from being burned, whether or not it is imported from outside the state. While I do not doubt that many supporters of the C & D legislation opposed the importation of C & D debris, their larger concern was with the adverse public health and environmental effects of burning C & D debris, regardless of its source. Thus, the excerpt that plaintiffs cite is not evidence of discriminatory purpose.

-13- underscores the fact that it was intended primarily to promote

the public health and the environment rather than to benefit

local commercial interests. Although supporters touted the

beneficial effect that the legislation would have on the state’s

virgin timber producers, their statements as a whole demonstrate

that their principal concern was with what they believed were the

adverse public health and environmental effects of burning C & D

debris. See, e.g., Senate Comm. on Energy, Env’t and Econ. Dev.,

Public Hearing on HB 427 and HB 428, at 14-16 (statement of Gov.

Lynch), 17 (statement of Rep. Hamm), 19 (statement of Sen.

Larsen), 25-26 (statement of M s . Ward, REACH for Tomorrow), 27

(statement of Dr. Bassi), 28 (statement of Mr. Jones), 31

(statement of Dr. Treadwell), 33 (statement of Mr. Flood, REACH

for Tomorrow), 36 (statement of M s . Staaf, Environment New

Hampshire) (Apr. 2 4 , 2007); House Comm. on Science, Tech. and

Energy, Public Hearing on HB 428, at 1 (statement of Rep. Hamm,

statement of Gov. Lynch), 2 (statement of Sen. Sgambati,

statement of Sen. Clark, statement of Mr. Babson, statement of

M s . Lawrence, Science Notes) (Feb. 7 , 2007).

In summary, the language, structure, and legislative history

of the C & D legislation demonstrate that the legislation’s

principal purpose was to promote the public health and the

-14- environment. While the legislation’s supporters may also have

believed that it would benefit local virgin wood producers, this

was at most an incidental purpose that does not justify the

heightened scrutiny that must be given to discriminatory

legislation under the dormant Commerce Clause.5 See Alliance of

Auto. Mfrs.,

(recognizing that incidental

discriminatory purpose does not warrant strict scrutiny under the

dormant Commerce Clause).

2. Discriminatory Effect

Although “the Supreme Court has not directly spoken to the

question of what showing is required to prove discriminatory

5 Plaintiffs argue that their discriminatory purpose claim cannot be resolved through a motion for summary judgment because the record includes evidence that supporters of the legislation believed that it would benefit local virgin timber producers at the expense of out-of-state C & D debris suppliers. As plaintiffs see i t , this makes legislative purpose a disputed issue of fact that cannot be resolved through a motion for summary judgment. I disagree. First, it is by no means clear that the determination of legislative purpose is a factual inquiry. See, e.g., Caleb Nelson, Judicial Review of Legislative Purpose, 83 N Y U L . R E V . 1784, 1859 n.306 (2008) (“[A]mong other things, federal circuit courts may disagree about whether to review conclusions about legislative motivation as questions of law or as questions of fact.”). In any event, when I construe the evidence bearing on the issue in the light most favorable to the plaintiffs i t , at most, suggests that the protection of local timber producers was an incidental purpose of the legislation. Thus, the evidence plaintiffs cite does not give rise to a genuine issue of material fact that precludes summary judgment.

-15- effect where . . . a statute is evenhanded on its face and

wholesome in its purpose,” the First Circuit has held that this

showing must be “substantial.” Cherry Hill,

6 . A

plaintiff, therefore, must “submit some probative evidence of

adverse impact . . . the mere fact that a statutory regime has a

discriminatory potential is not enough to trigger strict scrutiny

under the dormant commerce clause.”

; see also

Alliance of Auto. Mfrs.,

1 . This burden cannot be

met merely by showing that a statute favors one product over

another. As I have noted, discrimination claims under the

dormant Commerce Clause target “differential treatment of in-

state and out-of-state economic interests that benefits the

former and burdens the latter.” Family Winemakers,

, at * 1 8 . Thus, while the adversely affected

products need not be entirely out of state and, conversely, the

favored products need not be entirely in state, a statute

ordinarily must predominately benefit in-state products at the

expense of out-of-state products to support a discrimination

claim based solely on the statute’s unintended discriminatory

effect.6

6 Discerning whether an actual, adverse discriminatory effect exists also “assumes a comparison of substantially similar

-16- Plaintiffs argue that they have a viable discriminatory

effect claim because C & D debris and virgin wood products

compete in the local biomass fuel market and “the overwhelming

majority of C & D debris producers who would otherwise be able to

sell their product to New Hampshire combustors are out-of-state,

and the overwhelming majority of wood producers who are selling

to New Hampshire combustors are in-state . . .” (Pl.’s Opp. to

Def.’s Mot. for Summ. J., Doc. N o . 1 6 , at 22.) The difficulty

with this argument is that plaintiffs have failed to offer

sufficient evidentiary support for the premises on which it is

based.

Although plaintiffs claim that the majority of C & D debris

comes from out-of-state sources, the only evidence in the record

on this issue suggests that the volume of C & D debris produced

entities.” Davis, 128 S . C t . at 1811 (finding that Kentucky, as a public entity, was not “substantially similar” to private bond issuers in the market). When, as in the present case, “the allegedly competing entities provide different products . . . there is a threshold question whether the companies are indeed similarly situated for constitutional purposes.” GMC v . Tracy,

(1997). To be considered similarly situated, the supposedly favored and disfavored entities must produce similar products that compete within a single market. See

. Although plaintiffs have produced scant evidence on this point, I assume for purposes of analysis that the wood component of C & D debris and virgin wood are competing products in the local biomass fuel market.

-17- in New Hampshire when the legislation was adopted substantially

exceeded the volume of C & D debris that was then being imported

from surrounding states. (See Def.’s Reply to Pl.’s Opp. Ex. 2 ,

Doc. N o . 19-3, at 2.) This calls into question the need for

judicial intervention to protect C & D debris producers because,

as the Supreme Court has observed, “[t]he existence of major in-

state interests adversely affected by [a regulation] is a

powerful safeguard against legislative abuse.” Minnesota v .

Clover Leaf Creamery,

, 473 n.17 (1981).

Equally problematic is the absence of any evidence in the

record to support plaintiffs’ contention that most virgin wood

that is sold in the state’s biomass fuel market comes from local

sources. While it is undeniable that New Hampshire has a

substantial virgin wood products industry, it is equally true

that surrounding states are also vibrant producers of virgin

wood. Without evidence, I am left to speculate as to the extent

to which the C & D legislation disproportionately benefits local

virgin wood producers.

In summary, a reasonable fact-finder could not conclude on

the present record that the C & D legislation has a substantial

discriminatory effect because plaintiffs’ argument on this point

is based upon the unsupported assertions that most C & D debris

-18- that is affected by the legislation comes from out of state and

most virgin wood that has replaced C & D debris as a fuel source

comes from in state.

B. Excessive Burden Claim

Having concluded that the C & D legislation is not

discriminatory, I must next determine whether it “burdens

commerce in a way that is clearly excessive in relation to the

putative local benefits to be derived therefrom.” Cherry Hill,

(citing Pike v . Bruce Church, Inc.,

(1970)). Under the Pike balancing test, “laws that regulate

evenhandedly and only incidentally burden commerce are subjected

to less searching scrutiny,” and are therefore upheld unless the

burdens that they impose upon commerce “clearly outweigh” their

state or local benefits. Id.; Davis, 128 S . C t . at 1817. “If a

legitimate local purpose is found, then the question becomes one

of degree . . . the extent of the burden that will be tolerated

will [ ] depend on the nature of the local interest involved, and

on whether it could be promoted as well with a lesser impact on

interstate activities.” Pike,

.

The balancing of benefits and burdens required by Pike is

accomplished in three steps. “First, we are to evaluate the

nature of the putative local benefits advanced by the statute.

-19- Second, we must examine the burden the statute places on

interstate commerce. Finally, we are to consider whether the

burden is ‘clearly excessive’ as compared to the putative local

benefits.” Pharm. Care Mgmt. Ass’n v . Rowe,

(1st Cir. 2005). Courts must be careful not to second-guess

reasonable legislative judgments when evaluating the local

benefits of challenged legislation. Emphasizing that Pike

mandates an inquiry only into the “putative” benefits of the

challenged legislation, the First Circuit has observed in this

regard that “it matters not whether these benefits actually come

into being at the end of the day.”

.

1. Putative Benefits

As I have explained, the C & D legislation was enacted

principally to promote the public health and the environment.

These are plainly legitimate subjects of state regulation and

plaintiffs do not argue otherwise. Instead, they contend that

the putative public health and environmental benefits of the

burning ban should be given little weight because they will prove

to be illusory in practice.

As a preliminary matter, I note that First Circuit precedent

forecloses plaintiffs’ argument because it directs a court to

consider only the “putative” benefits of the challenged

-20- legislation rather than its effectiveness in practice. See Rowe,

. More importantly, I am unpersuaded by

plaintiffs’ argument even when I assume for purposes of analysis

that I am free to undertake my own inquiry into the effectiveness

of the C & D legislation. The legislative committees that

considered the C & D legislation received testimony from several

medical health professionals concerning the harmful health

effects that result from the burning of C & D debris, and both

legislators and DES representatives identified numerous

environmental problems associated with the burning of C & D

debris. (See Def.’s Reply to Pl.’s Opp., Doc. N o . 1 9 , at 10-14;

Def’s Reply to Pl.’s Opp. Ex. 1 , Doc. N o . 19-2; Pl.’s Opp. to

Def.’s Mot. for Summ. J. Ex. A , Doc. N o . 16-2, at 7 , 1 4 , 17-18,

20.) Although plaintiffs allege in a conclusory fashion that

“there is no evidence, nor reason to believe, that burning C & D

wood is more harmful to the environment than burning virgin

wood,” (Pl.’s Opp. to Def.’s Mot. for Summ. J., Doc. N o . 1 6 , at

2 3 ) , they have produced no evidence to support this contention.

When parties bear the burden of proof on an issue, as plaintiffs

do here, they must do more than complain about the poor quality

of the opponent’s evidence. Because plaintiffs have failed to

offer any proof to support their allegation that the C & D

-21- legislation is ineffective as a public health and environmental

protection measure, I cannot credit their argument on this point,

even if I were to accept their contention that Pike authorizes

this type of inquiry.

2. Burden on Interstate Commerce

Plaintiffs argue that the C & D legislation burdens

interstate commerce by denying out-of-state producers of C & D

debris access to the New Hampshire market. According to

plaintiffs, the legislation harms commerce by reducing overall

demand for C & D-derived fuel and subjecting C & D debris

producers to higher costs by forcing them to ship their fuel to

more remote facilities in Maine. Although plaintiffs have made

no attempt to quantify these effects, I will assume for purposes

of analysis that the legislation will burden interstate commerce

in the manner that plaintiffs claim.

3. Balancing Burdens and Benefits

The balancing of burdens and benefits required by Pike does

not result in a close call in this case. Construing the evidence

in the light most favorable to the plaintiffs, the record at best

suggests that an unknown number of regional producers of C & D-

derived fuel will suffer unquantified reductions in profits if

they are denied access to the New Hampshire biomass fuel market.

-22- A dormant Commerce Clause claim, however, cannot be based merely

on a showing that a challenged statute will cause individual out-

of-state businesses to lose profits. Rowe,

.

This is especially true in cases such as the present one, where

the legislation at issue is reasonably targeted at important

public health and environmental concerns.

Plaintiffs also claim that the balance of burdens and

benefits required by Pike should shift in their favor because the

State could address all legitimate public health and

environmental concerns without burdening interstate commerce by

requiring that fuel derived from C & D debris be burned only in

facilities that employ Best Available Control Technology7

(“BACT”). While I recognize that the availability of equally

7 “Best Available Control Technology” is defined in New Hampshire law as

an emission limitation based on the maximum degree of reduction for each air contamination that would be emitted from any device that the department, on a case- by-case basis, taking into account energy, environment, public health, and economic impacts and other costs, determines is achievable for such device through application of production processes or available equipment, methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such air contaminant.

-C:10-b (2009).

-23- effective but less restrictive alternatives is a relevant

consideration under Pike, the plaintiffs have failed to offer

evidence that supports their claim. Plaintiffs have not

identified the specific BACT limitation that would address air

quality issues that may arise from the burning of fuel derived

from C & D debris, nor have they demonstrated that technology

exists that could achieve that limitation. Furthermore,

plaintiffs do not explain how the implementation of BACT would

address other environmental issues that were raised during debate

on the C & D legislation, such as problems posed by the need to

dispose of the toxic ash that allegedly results from the burning

of C & D-derived fuel. Without such evidence, I simply cannot

conclude on the present record that the use of BACT would be an

effective substitute for a complete ban on the burning of C & D

debris.

IV. CONCLUSION

Plaintiffs have failed to present a triable case either that

the C & D legislation is discriminatory or that it excessively

burdens interstate commerce. Accordingly, the State’s motion for

summary judgment (Doc. N o . 15) is granted. The clerk is

instructed to enter judgment and close the case.

-24- SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

February 2 5 , 2010

cc: Frank P. Spinella, Jr., Esq. Leon A . Blais, Esq. Mary E . Maloney, Esq.

-25-