“one town should be burdened by the uncontrolled
growth of a landfill.” --New Hampshire Supreme Court Judge Jean Burling.
April 30, 2003
The landfill judicial decision announced this week is a resounding victory
for Bethlehem and for citizens throughout the state who value local
The ruling vindicates the years of struggle, first by a vocal minority, and
more recently by a growing number of Bethlehem residents who refused to be
bullied into submission by a multi-million dollar solid waste conglomerate.
The argument by landfill owner Casella Waste Systems lawyers was that the
state – and by inference its close allies in the waste disposal business –
could disregard local regulations when building or expanding landfills. At
the first state Supreme Court hearing on the matter three years ago, an
incredulous sounding justice asked the Casella lawyer if he really meant to
say that towns have no say in solid waste matters. That’s right, the lawyer
responded, that’s just the point.
That particular point, which lawyers call “preemption,” was at the heart of
the case just decided. At what point does the state interest in
implementing its solid waste disposal policy trump towns’ wishes as to
where, when, and how landfills are built? Judge Jean Burling looked to the
legislative intent behind the state’s rewriting of its solid waste rules in
1996. Contrary to Casella and other industry lobbyists’ arguments, she
found that the rules “leave significant room for local control” in several
key areas. Contrary to Casella’s argument, she found that landfill
operators must get local permission to build new facilities.
The fate of Casella’s proposed Stage IV is still up in the air, for the
landfill owners may appeal Burling’s decision to the state Supreme Court.
The state has already given its permission for this 11-acre expansion, but
Burling’s decision upholds the legality of Bethlehem’s zoning ordinance
prohibiting the expansion of any private landfill. So it barring an
overturn of the decision by a higher court, it appears that the only way
the landfill can get any larger is if its owners win a variance from the
town Zoning Board of Adjustment or convince Bethlehem residents to amend
their ordiance again.
Burling reasoned that Bethlehem’s outlawing of private landfill expansion
avoids the pitfall of NIMBY, or “Not In My Backyard.” Rather than simply
saying no to all landfills, which would be illegal, Bethlehem’s zoning rule
asserts that the town is “simply electing to undertake their responsibility
[for waste disposal] through a facility sited and operated by the town,”
the judge wrote.
And there is the crux of the matter for North Country communities that have
relied on the Bethlehem landfill for years. The current landfill stage will
only last two more years before it is filled to capacity. If Burling’s
decision withstands any further appeals, and if any attempts Casella might
make to win town approval for Stage IV fail, more than 60 towns in the
state, including Bethlehem, will have to look elsewhere to dispose of their
Some in Bethlehem believe that the Mount Carberry landfill in Berlin is the
solution. Carberry was recently purchased from the Berlin paper mill owners
by the Androscoggin Solid Waste District. The district’s primary interest
is serving its member towns, although it has indicated that it will seek
outside garbage as well. It is supposed to provide a pricing schedule by
the end of this month.
But regardless of how Carberry works out, a long-term solution to waste
disposal needs to start at the source. We all need to take responsibility
for what we throw away. We can reuse and recycle, and reward through our
buying power goods that come in smaller, and preferably recyclable
As Burling concluded, no “one town should be burdened by the uncontrolled
growth of a landfill.” Bethlehem should feel proud of making it down a long
and difficult road to justice.
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