Jackson Law – rubbish or not?

Last November, CM Nick Leonardo introduced an ordinance for Nashville to adopt the State’s “Jackson Law.” If adopted, the Jackson Law would require new and expanding landfills to be approved by a Metro Council ordinance before a state permit could be issued. The legal and policy ins and outs of this proposal are complex. I don’t really have a good reason, but I have put off getting fully up to speed until the bill reached 3rd reading.

Now, 3rd reading is scheduled for May 2. So, I spent the time to learn what I needed to learn. I have decided to support adoption of the Jackson Law. I am going to let you read the ordinance on your own. Council Director Jameson has also provided deep analysis — you can go herehere, and here and search for “Jackson” to see what he has to say. Metro Legal Director Cooper has at least one memo about the Jackson Law also. I am going to run through the major differences. For each issue, I’ll let you know whether I think the existing law or the proposed Jackson Law is better policy for Nashville.

More vs. Less Factors For Council To Consider: Existing law: (1) allows the Council to consider only one factor — location; (2) if the Council’s decision is challenged later, it is easier to uphold; (3) in addition to the Council having one reading, the Board of Zoning Appeals would need to have a public hearing; and (4) there is no way to avoid the Commissioner of a State agency (TDEC) controlling one step of the appeal process.

The Jackson Law would: (1) allow the Council to consider many more relevant factors (GOOD); (2) if the Council’s decision is challenged later, it is more difficult to uphold (BAD); (3) the Council would have three readings (GOOD), but the BZA wouldn’t be involved (BAD); and (4) the TDEC Commissioner would be required to automatically approve the Council’s decision (GOOD).

My perspective is that, if we had parallel universes — one with existing law, and one with the Jackson Law, and everyone performed their respective roles properly, there would be little or no difference in the results under the different laws. However, we know that not everyone will act perfectly, and I simply can’t predict whether the weak link in any future hypothetical scenario would be the Council, the BZA, our Solid Waste Region Board, the TDEC Commissioner, a Davidson County trial court judge, or a State of Tennessee Court of Appeals. Without a crystal ball telling me who among these is going to possibly mess up, I can’t predict what extra protections I prefer. Either of the two technical processes might turn out to be better, or worse, than the other in some unknown future scenario. For this reason, this issue is a TIE.

More vs. Less Formal Notice Mailed To Neighbors: Existing law does not have a strong notice requirement. The Jackson Law has a very strong notice requirement. Obviously, more notice is better than less notice. However, when a landfill is involved, word gets out fast and thoroughly. Practically, I don’t consider a difference in notice provisions significant enough to pick one law over the other. This issue is a TIE.

What Kind Of New Landfills Must Go Before The Council: Existing law requires a Council resolution approving a new Class I landfill (municipal solid waste), but NOT for Class II, III, or IV landfills (industrial, and construction and demolition waste). Under existing law, new Class II, III, and IV landfills get approved by our Solid Waste Region Board, subject to review by the TDEC Commissioner.

Under the Jackson Law, new Class I-IV landfills all must be approved by a Metro Council ordinance. This is clearly superior to existing law. This issue goes easily to the Jackson Law.

What Kind of Landfill Expansions Must Go Before The Council: Under existing law, if a landfill wants to laterally expand its footprint, the Council does not get a say in the process. These expansions get approved by our Solid Waste Region Board, subject to review by the TDEC Commissioner.

Under the Jackson Law, lateral expansions of existing landfills all must be approved by a Metro Council ordinance. This is clearly superior to existing law. This issue goes easily to the Jackson Law.

Solid Waste Transfer Stations: A transfer station is a local site to temporarily store waste until it can be shipped, usually in larger vehicles, to a permanent landfill. Under existing law, a new solid waste transfer station must get the same Council/BZA approval required for a new Class I landfill.

Under the Jackson Law, a new solid waste transfer station is exempt. The advice I have received tells me that the most likely result is that our existing law would continue to apply to requests for a new solid waste transfer station. Because this is “most likely” and not a certainty, this issue goes slightly in favor of existing law.

Solid Waste Processing Facilities: A processing facility is used to change the physical characteristics of the waste, or to remove particular components from the waste. Under existing law, the Council does not get a say in the process of approving a solid waste processing facility. These get approved by our Solid Waste Region Board, subject to review by the TDEC Commissioner.

Under the Jackson Law, processing facilities all must be approved by a Metro Council ordinance. This is clearly superior to existing law. This issue goes easily to the Jackson Law.

The Jackson Law Is All-Or-Nothing: State law does not allow us to pick and choose which parts of the two laws we like. We have to take all of the Jackson Law or none of it. Because the balance of the other factors weigh in favor of the Jackson Law, this issue also goes to the Jackson Law.

Overall, I think the Jackson Law is the better policy for Nashville. If nothing else, adopting the Jackson Law will give the community and the Council more control over new Class II, III, and IV landfills, lateral expansions of existing landfills, and solid waste processing facilities. This makes the Jackson Law the better choice.

Bob Mendes

Bob Mendes represents all of Nashville as a Council-At-Large member of Nashville’s Metro Council. He is Chair of the Council’s Charter Revision Committee, a member of the Metropolitan Audit Committee, and a member of the Council’s Budget & Finance Committee, Rules & Confirmations Committee, and Ad Hoc Affordable Housing Committee. Bob also practices business law at Waypoint Law PLLC. Bob’s complete bio is here. You can follow Bob @mendesbob.