Congress, the courts, and solid waste transport: good fences don't always make good neighbors.

AuthorWeinberg, Philip

We are awash in a tide of solid waste that shows few signs of abating. Recent efforts to reduce and recycle the prodigious quantity of waste Americans generate have barely dented its volume. Specifically, we generate about 180 million tons per year of municipal solid waste, of which, according to 1988 statistics, 72.7% ends up in landfills, 14.2% is incinerated, and 13.1% is recycled or recovered in other ways.(1) Of this waste, about 40% is paper, 8% plastic, 8% metal, 7% food, and 18% yard waste.(2) Although there were about 20,000 landfills in the United States in the early 1970s, that number has been reduced to approximately 7,000 and will likely decline further(3) as a result of closings dictated by capacity or environmental risks. Yet despite these closures, 364 new landfills opened between 1986 and 1991,(4) and total landfill volume has recently increased nationwide.(5)

Recognizing the shortage of landfill space, states and localities have in the past two decades turned to a variety of remedial measures. A few have begun to focus on reducing excess packaging, a sensible long-term solution in line with the mandate of the Resource Conservation and Recovery Act (RCRA),(6) the comprehensive federal statute regulating waste "to reduce the amount of waste and unsalvageable materials."(7) More have mandated recycling of paper, plastics, and other substances consuming vast amounts of landfill space.(8) Incineration, a cure some deem worse than the disease,(9) has been touted as an alternative to landfilling(10) --though the resulting ash must still be disposed of in landfills.(11)

Alternatively, some states and municipalities have legislated to limit the use of their landfills to waste generated locally, or to require all such waste to be brought to a local incinerator or transfer station. This article addresses the validity of "flow control" laws of this nature. First, it reviews supreme Court and other judicial decisions as to whether flow control laws discriminate against, or unduly burden, interstate commerce. Next, it considers the validity of state and local regulations as applied to landfills operated by the government agency adopting the regulation. Next, it examines current bills in Congress authorizing or limiting flow control laws by the states and discusses their impact on the state statutes. Finally, it asserts that even if the dormant Commerce Clause challenge to state and local barriers fails, these barriers, even if passed pursuant to federal legislation, do not withstand an Equal Protection Clause assault. In place of such parochial bans on shipment, the article will end by offering some practical proposals to deal with this vexing problem.


    A series of Supreme Court decisions commencing with Cooley v. Board of Wardens(12) in 1851 has circumscribed the states, power to legislate in ways that unduly restrict interstate or foreign commerce. Although no explicit language in the Constitution so limits the states, the Court has long construed the Commerce Clause,(13) which empowers Congress "[t]o regulate Commerce with foreign Nations, and among the several States," as placing some curbs on the states, authority. The modern rule construes the "dormant" Commerce Clause as restricting the states (or their subdivisions) from either unduly burdening interstate commerce or discriminating against it.(14) As the Court expressed the test in a 1979 case, it

    must inquire (1) whether the challenged statute regulates evenhandedly with

    only "incidental" effects on interstate commerce, or discriminates against interstate

    commerce either on its face or in practical effect; (2) whether the statute

    serves a legitimate local purpose; and, if so, (3) whether alternative means

    could promote this local purpose as well without discriminating against interstate


    The underlying concern of the courts is the danger of "Balkanization,"(16) a term given vivid new meaning by recent history. In Justice Cardozo's words, "the peoples of the several states must sink or swim together, and . . . in the long run prosperity and salvation are in union and not division."(17)

    New Jersey was traditionally the site of disposal for much of the solid waste from New York and Pennsylvania. In 1973, New Jersey faced a shortage of landfill space and attempted to ban the import of solid waste. The statute tersely provided: "No person shall bring into this State any solid or liquid waste which originated or was collected outside [the] state."(18) The statute was supported by a legislative finding "that the available and appropriate land fill sites within the State are being diminished" and that, as the New Jersey Supreme Court had earlier held, "the extension of the life span of existing landfills, resulting from the exclusion of out-of-state waste, may be of crucial importance" to New Jersey's environment.(19) Upholding a challenge to this law as discrimination against interstate commerce, the Supreme Court in City of Philadelphia v. New Jersey(20) found that transporting solid waste, a lucrative trade even though the waste itself may be valueless, is commerce.(21) The Court distinguished earlier cases holding that innately harmful articles, such as diseased meat, are "not legitimate subjects of trade and commerce."(22) The Court reasoned that "the Court [in those cases] held simply that because. the articles, worth in interstate commerce was far outweighed by the dangers inhering in their very [shipment], States could prohibit their transportation across state lines."(23) Here, in contrast, "[t]here has been no claim . . . that the very [shipment] of waste into or through New Jersey endangers health."(24)

    The Court presciently added:

    Today, cities in Pennsylvania and New York find it expedient or necessary to

    send their waste into New Jersey for disposal, and New Jersey claims the right

    to close its borders to such traffic. Tomorrow, cities in New Jersey may find it

    expedient or necessary to send their waste into Pennsylvania or New York for

    disposal, and those States might then claim the right to close their borders. The

    Commerce Clause will protect New Jersey in the future, just as it protects her

    neighbors now, from efforts by one State to isolate itself in the stream of interstate

    commerce from a problem shared by all.(25)

    In the wake of City of Philadelphia, a variety of mechanisms short of outright bans were legislated by states and localities. Nearly all ran afoul of the Commerce Clause. Courts overturned state laws prohibiting importation of industrial waste from other states unless those states had substantially similar standards for disposal,(26) and forbidding trucks hauling solid waste into the state from transporting most other types of cargo out.(27)

    In 1992 the Supreme Court struck down two solid-waste statutes on Commerce Clause grounds, significantly expanding the City of Philadelphia beachhead. In Chemical Waste Management, Inc. v. Hunt,(28) Alabama's $72-per-ton state fee to dispose of out-of-state hazardous waste in private landfills was held to discriminate against interstate commerce.(29) The statute was plainly designed to reduce out-of-state deposits at Chemical Waste Management's Emelle, Alabama landfill, the nation's largest. The tipping fee for all hazardous waste in Alabama was $26.50 per ton; waste generated outside the state required the additional $72 fee. The Court found "[l]ess discriminatory alternatives" available to Alabama, such as a higher tipping fee for all hazardous waste, or a limit on all hazardous waste deposited at Emelle.(30) And, as in City of Philadelphia, the Court rejected the quarantine exception, which would allow barriers if a state shows that the transport of hazardous waste across state lines was itself dangerous.(31)

    Similarly, in Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department of Natural Resources,(32) the Court overturned a Michigan law that authorized counties to exclude from private landfills solid waste generated beyond the county's borders. Based on earlier cases involving milk and meat,(33) the Court rejected the county's view that since much in-state waste was barred, along with all out-of-state waste, the ban did not discriminate against interstate commerce.(34) As the Court noted, "a State (or one of its political subdivisions) may not avoid the strictures of the Commerce Clause by curtailing the [shipment] of articles of commerce through subdivisions of the State rather than through the State itself."(35) Nor was the statute valid because it allowed, but did not mandate, counties to ban out-of-county waste, which "merely reduced the scope of the discrimination."(36)

    In Oregon Waste Systems v. Department of Environmental Quality of Oregon,(37) the Supreme Court addressed an attempt to allow discriminatory dumping charges in cases where out-of-state waste imposes greater costs on a state than in-state waste. The Oregon Supreme Court, although it invalidated part of the enabling statute for allowing a legislative veto of agency rules, had upheld the statute against a claimed discrimination against commerce.(38) Oregon's court distinguished Chemical Waste, holding the surcharge was based, in the language of the statute, "on the `costs to the State . . . and its political subdivisions of disposing of solid waste generated out-of-state which are not otherwise paid for, under other waste disposal programs, including costs arising from permit issuance, management, monitoring, and closure activities at disposal sites accepting out-of-state waste."(39) How any of these costs are different for out-of-state waste, the Oregon court did not deign to explain. The Supreme Court sensibly reversed, holding a surcharge on interstate commerce "is virtually per se invalid,"(40) and that Oregon could not justify it as a compensatory tax since it so greatly exceeds the fee on in-state waste.(41) As for the state's claim that intrastate...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT