The Positive Growth Alliance Sues to Block Recycling

The Positive Growth Alliance (PGA) has filed a lawsuit in Chancery Court to stop the implementation of the law to institute curbside recycling for all Delaware households. The suit repeats the oft-heard claim that the temporary four cent bottle fee is a sales tax, and SB 234 should have originated in the House and required a 3/4 majority. This assertion was dismissed by rulings from Matt Denn, who presided over the Senate debate, and House Speaker Bob Gilligan, who both relied on clear opinions from the Senate and House attorneys.

The lawsuit was filed pro se by PGA executive director Richard Collins and five other like minded citizens, which means they are acting as their own attorney, and names Governor Markell, the Department of Natural Resources and Environmental Control and DNREC secretary Collin O'Mara as defendants. Beyond claiming that the fee is a sales tax, the suit asserts that "the passage of SB 234 represents an unwarranted expansion and abuse of the police powers of the State of Delaware."

After a lengthy excerpt from the preamble of the Delaware constitution, the suit offers this explanation as to how instituting curbside recycling involves an abuse of police powers:

Specifically, we believe the state government can not legally force persons engaged in waste collection services to offer an only marginally related service in the area of recycling, thus forcing Plaintiffs to pay unwarranted higher fees and also prohibiting Plaintiffs from knowing the cost of recycling services.

The suit does not explain how recycling waste is only "marginally related" to dumping waste in a landfill. The only difference that I can see is that the same trucks will deliver material to a recycling facility on Tuesday and to a landfill on Friday.

It seems to me that if the state can mandate delivery of waste to a landfill (as opposed to an unregulated dump), it can mandate delivery to a recycling facility. The state has a compelling interest in the prudent management of solid waste. Proper disposal of trash is a public health issue, and landfills cost $100 million or more to build, as Markell spokesman Brian Selander noted when he told the News Journal that the law "should help residents and businesses by reducing the need for costly expansions at landfills."

As for how the plaintiffs will be harmed, the suit simply repeats the assertion that waste haulers will see their costs increase because of the law, even though no one has yet seen a price increase. The law provides $22 million, funded by the four cent fee, to assist in start-up costs. Once those costs are covered, it should not cost much more to deliver material to a recycling facility than it does to deliver material to a landfill.

It is worth noting that no waste haulers have signed on to the suit. To the contrary, they worked with environmentalists and state officials to develop a statewide recycling program and testified in favor of SB 234.

One passage from the suit seems better fitted to a Tea Party rally than the dry deliberations of Chancery Court:

Plaintiffs are asking the court to decide if in this case the State of Delaware has gone “over the line” as to the amount of power they can take for the state government through police powers. It should be noted that Plaintiff’s concerns are heightened because of the numerous, arbitrary and capricious ways in which defendants violated the state constitution as noted. Indeed, these violations are so numerous and in disregard of the defendants duties to defend the state constitution as to shock the conscience.

Why did it take so long for the suit to be filed? An e-mail message from the PGA offers an explanation:

As for our motive, as we approach Election Day, we believe that the oath of office that our elected officials take to "defend and protect" the Constitution should mean something.

I take it that "defend and protect" means preventing the government from doing anything the plaintiffs disagree with. The Positive Growth Alliance has taken other anti-environmental positions, opposing even the most reasonable land use protections, challenging climate science as "fraud" and arguing that the impact of the BP oil spill was overblown. Given that the plaintiffs have not actually been harmed by the law, I conclude that the lawsuit is driven by the Alliance's anti-environmental ideology.