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Hardage v. Atkins

Citation: 8 ELR 20719
No. No. 77-1613, 582 F.2d 1264/12 ERC 1043/(10th Cir., 09/11/1978)

Reversing the lower court, the Tenth Circuit Court of Appeals strikes down as violative of the Commerce Clause an Oklahoma statute regulating the disposal of industrial waste within the state and banning importation of such waste unless the state of origin imposes similar standards and has a reciprocity agreement with Oklahoma. The trial court found that the mandatory reciprocity provision would be impermissible under the Commerce Clause but upheld the statute solely on the rationale that industrial waste is not an article of commerce and thus does not come within the purview of that constitutional provision. The Supreme Court recently rejected this view, however, holding in City of Philadelphia v. New Jersey, 8 ELR 20540, that all objects of interstate trade merit Commerce Clause protection. The Tenth Circuit concludes that the mandatory reciprocity provision violates the Commerce Clause because it is a form of economic protectionism.

Counsel for Plaintiff-Appellant
Clyde A. Muchmore, Richard C. Ford
Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick
17th Floor, Liberty Tower, 100 Broadway, Oklahoma City OK 73102
(405) 232-0661

Counsel for Defendants-Appellees
Amalijia J. Hodgins, Ass't Attorney General; Larry Derryberry, Attorney General
112 State Capitol, Oklahoma City OK 73105
(405) 521-3921

Joined by Breitenstein & Doyle, JJ.