State Discrimination Against Imported Solid Waste: Constitutional Roadblocks

September 1990
Citation:
20
ELR 10383
Issue
9
Author
Robert Meltz

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.

Robert Meltz is an attorney with the Congressional Research Service, Library of Congress, where he specializes in environmental law. He holds a B.A. and M.A. from the University of Pennsylvania, and a J.D. from Georgetown University. He is also deputy chairman of the Federal Bar Association's Section on Energy, Environment, and Natural Resources.

The opinions in this Article are the author's and do not necessarily represent those of the Congressional Research Service or Library of Congress.

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