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Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders

ELR Citation: 27 ELR 20111
Nos. Nos. 93-2669 (JEI), 94-3244 (JEI), 931 F. Supp. 341/(D.N.J., 07/15/1996)

The court holds that New Jersey's solid-waste flow-control laws and regulations violate the Commerce Clause of the U.S. Constitution. The court first notes that the laws and regulations are subject to strict scrutiny because the Third Circuit has already held that they discriminate against interstate commerce on their face or in effect. The court holds that the flow-control regulations clearly have a valid local purpose. There is little reason to believe that the legitimate justifications the state has put forward are merely a sham or a post hoc rationalization. The court next holds that the state has not met its burden of demonstrating an absence of feasible nondiscriminatory alternatives. New Jersey could finance its solid-waste management program through upfront taxes, user fees, or other charges that do not discriminate against interstate commerce. Nothing in the record suggests that the costs of implementing the necessary revisions to the current flow-control system would be exorbitant or beyond the capabilities of reasonable fundraising alternatives. In any case, the threat of some increase in costs cannot negate the constitutional mandate of the dormant Commerce Clause. The court notes that most of the state's arguments derive not from the lack of a feasible nondiscriminatory alternative, but from an assumption that New Jersey lacks the political will to do the job. But given sufficient time and the will to act, the state can amend laws and develop new regulatory structures that will create an environmentally sound waste-management system on a cost-effective basis while protecting investors and businesses that reasonably relied on the law. And to meet its other environmental goals, the state can pass additional regulations governing activities of in-state waste generators, regulations that will equally affect in-state and out-of-state disposal facilities.

The court makes permanent a preliminary injunction it previously issued against the enforcement of waste control over construction and demolition debris. The court then enjoins the enforcement of the waste flow regulations governing the remainder of New Jersey waste to the extent that their application discriminates against interstate commerce. The court stays the injunction for two years, except as it applies to construction and demolition waste, to give the state sufficient time to devise the specific nondiscriminatory alternative that it chooses to implement to replace the current flow-control regime.

[Previous decisions in this litigation are published at 25 ELR 20620, 26 ELR 20256 and 20721.]

Counsel for Plaintiffs
Mark R. Rosen
Mesirov, Gelman, Jaffe, Cramer & Jamieson
89 N. Haddon Ave., Haddonfield NJ 08033
(609) 795-4988

Counsel for Defendants
Stephan P. Sinisi
Sinisi, Van Dam & Sproviero
Two Sears Dr., Paramus NJ 07653
(201) 599-1600