State Discrimination Against Imported Solid Waste: Constitutional Roadblocks
Editors' Summary: During the last two decades, state and local governments have tried to find places to dispose of their share of the 160 million tons of garbage produced annually in the United States. Faced with landfill closings, local opposition to siting new landfills, and strict environmental regulations, they search beyond their geographic boundaries for disposal sites. In response, state and local jurisdictions with adequate disposal capacity have banned waste generated outside their jurisdiction. This Article analyzes the constitutionality of state and local laws that control the import of solid waste. Against a backdrop of precedent that has shaped contemporary court doctrine on interstate waste regulation, the author evaluates the success of dormant commerce clause, equal protection, due process, contract impairment, and privileges and immunities challenges to waste import bans. Noting that, unlike the states, Congress is under no restriction against burdening interstate commerce, the author discusses Congress' power to impose on behalf of the states a waste import ban that can be lifted by consent of the states themselves. Alternatively, with a clear expression of its intent to approve discriminatory state legislation, Congress can grant the states authority to impose waste import bans, conditioned on the states entering into a regional waste disposal compact or a federally approved waste management plan. However, to enact a law that denies Fourteenth Amendment rights or implicitly grants state immunity from constitutional challenges is beyond Congress' power.