Garbage I

In prior panels, we have discussed the Court's application of the dormant commerce clause in a variety of contexts. Application to solid waste disposal has been complex and controversial. Solid waste disposal is a traditional government function, with significant public health and environmental implications, which goes to the core of state and local government's sovereignty. It is one thing for the court to impede local government's ability to regulate the market for products traditionally produced and distributed in the private marketplace. But solid waste disposal is clearly a traditional governmental function of state and local government. Several of the Justices have been troubled by the extension of the dormant commerce clause into this arena. Moreover, the Court has long recognized that State government can interfere with the interstate transport of diseased livestock or agricultural products. Why does not hazardous waste fall into this category. At times, the Court has struggled too with defining the product under consideration. In its early cases, the Court seemed to be suggesting that garbage is the product being sold, and the commerce in garbage the subject of commerce clause protection, leading the Chief Justice to retort:

I am baffled by the Court's suggestion that this case might be characterized as one in which garbage is being bought and sold. There is no suggestion that petitioner is making payment in order to have garbage delivered to it. Petitioner is, instead, being paid to accept the garbage of which others wish to be rid. There can be little doubt that in accepting this garbage, petitioner is also imposing environmental and other risks attendant to the waste's delivery and storage....The Court errs in substantial measure because it refuses to acknowledge that a safe and attractive environment is the commodity really at issue in cases such as this. FORT GRATIOT LANDFILL v. MICH. DNR, 504 U.S. 353 (1992)

But in recent years, the Court has shifted to the view that garbage is not a product, moving in commerce, but rather is not so much the solid waste itself, but rather the service of processing and disposing of it." C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 391 (1994).

Rejection of the Quarantine Doctrine: Many of our most urbanized states have struggled with limited disposal capacity. For this reason, some states have sought to preserve local capacity for local solid waste. In PHILADELPHIA v. NEW JERSEY, 437 U.S. 617 (1978) the Court found that a New Jersey statute that prohibited the importation of most "solid or liquid waste which originated or was collected outside the territorial limits of the State . .." violated the Commerce Clause of the United States Constitution. The New Jersey statute extended not merely to publicly owned landfills, but to private landfills as well. The State argued that garbage was like contraband or diseased livestock, which under the quarantine cases, states could ban from interstate commerce. But the majority of the Supreme Court rejected this comparison. The logic of the Court's distinction is a bit hard to follow:

...all objects of interstate trade merit Commerce Clause protection; none is excluded by definition at the outset. In Bowman [a quarantine decision] and similar cases, the Court held simply that because the articles' worth in interstate commerce was far outweighed by the dangers inhering in their very movement, States could prohibit their transportation across state lines. Hence, we reject the state court's suggestion that the banning of "valueless" out-of-state wastes by ch. 363 implicates no constitutional protection. Just as Congress has power to regulate the interstate movement of these wastes, States are not free from constitutional scrutiny when they restrict that movement.

Since solid waste is not quarantined material, the result then follows easily. New Jersey was clearly discriminating against the interstate movement of commerce. Just as the State could not favor locally produced milk over milk from outside the state, so New Jersey could not discriminate against out of state garbage. The key holding of Philadelphia versus New Jersey is the determination that the quarantine doctrine could not be applied to garbage or hazardous waste..

Another Try: Fort Gratiot Landfill v. Michigan DNR, 504 U.S. 353 (1992)

State of Michigan attempted another variation on New Jersey's theme. The Waste Import Restrictions of Michigan's Solid Waste Management Act (SWMA) provided that solid waste generated in another county, State, or country could not be accepted for disposal unless explicitly authorized in the receiving county's plan. The premise of this law was that each County would have a solid waste plan designed to assure that there existed adequate capacity for solid waste coming into the County. The Supreme Court struck this down as well. "The Waste Import Restrictions unambiguously discriminate against interstate commerce," the Court held. The Court rejected Michigan's attempt to distinguish the New Jersey legislation on the grounds that the Waste Import Restrictions treated waste from other Michigan counties no differently than waste from other States. All such waste, whether coming from Michigan or elsewhere needed a permit, the State reasoned. But the Court rejected that contention. Local protection is invidious, even if even-handedly applied, once it reaches beyond state borders. "Our prior cases teach that a State (or one of its political subdivisions) may not avoid the strictures of the Commerce Clause by curtailing the movement of articles of commerce through subdivisions of the State, rather than through the State itself."

The Court was careful to not that the case before it did not involve publicly owned facilities. " The case involves only the validity of the Waste Import Restrictions as they apply to privately owned and operated landfills." Once again the Chief Justice dissented:

The Court today penalizes the State of Michigan for what, to all appearances, are its good faith efforts, in turn encouraging each State to ignore the waste problem in the hope that another will pick up the slack. The Court's approach fails to recognize that the latter option is one that is quite real and quite attractive for many States - and becomes even more so when the intermediate option of solving its own problems, but only its own problems, is eliminated. For the foregoing reasons, I respectfully dissent.

In the succeeding panel, we will discuss other applications of the dormant commerce clause to solid waste transportation and disposal.