State Discrimination Against Imported Solid Waste: Constitutional Roadblocks

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.

[20 ELR 10383]

How to dispose of the nation's solid waste is today a ubiquitous topic. Existing landfills are rapidly filling up and closing; proposed new ones, assuming they can meet stringent environmental controls, spark intense local opposition. Hence, more and more states, particularly in the densely populated Northeast, are sending their garbage to distant venues — often hundreds of miles away in other states.¹ The result in the past two decades has been enactment by states, counties, and towns of laws that ban, or at least discourage, the disposal within the enacting jurisdiction of solid waste originating outside the jurisdiction.²

This Article examines the constitutional issues raised by these state and local discriminations against outside, nonhazardous solid waste.³ First, it addresses "dormant commerce clause" restrictions on the states — the constitutional issue treated most extensively in the cases. Next, it surveys two other constitutional provisions explored by the courts — equal protection and due process — and two apparently not yet addressed — impairment of contracts and privileges and immunities. Finally, the Article notes why no serious commerce clause issues exist in connection with foreseeable actions by Congress permitting greater state [20 ELR 10384] and local control over transboundary movement of solid waste. Hazardous waste cases are noted only for their relevance to discriminations against nonhazardous waste.

Dormant Commerce Clause Issues

Introduction

On its face, the commerce clause of the Constitution is only a grant of power to Congress — power "[t]o regulate Commerce . . . among the several States . . . ."⁴ Supreme Court decisions have long recognized, however, that the commerce clause contains by implication a restriction as well: a limit on the states' ability to regulate interstate commerce, even in the absence of congressional action, when such regulation places an "undue burden" on that commerce.⁵ This implied restriction is popularly dubbed the "dormant commerce clause."⁶ Its existence is grounded in the Supreme Court's view that in granting Congress power over interstate commerce, the Framers gave effect to their conviction that "our economic unit is the Nation," not the individual states. Thus, "one state in its dealings with another may not place itself in a position of economic isolation."⁷

Precisely what constitutes an "undue" burden is the sticking point. The Court applies a particularly subtle balancing test when the state statute on its face evenhandedly regulates intrastate and interstate trade, effectuates a legitimate or nonprotectionist interest, and has only an incidental impact on interstate commerce. Such state laws, in the oft-quoted words of Pike v. Bruce Church, Inc.

will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.⁸

On the other hand, whether a state law is constitutional is a much easier call when the statute on its face discriminates against articles from out of state. The Supreme Court repeatedly has asserted that the dormant commerce clause must invalidate a state law when its principal effect is to secure local benefit by burdening those outside the state.⁹ That is, state laws embodying economic protectionism are per se invalid. The clearest example of such protectionism, in the Court's view, is state legislation that explicitly singles out interstate commerce for burdens not imposed on intrastate commerce.¹⁰ To survive, such facial discriminations must advance a nonprotectionist purpose that cannot adequately be served by nondiscriminatory alternatives.¹¹ This burden is rarely met.

City of Philadelphia v. New Jersey

The 1978 Supreme Court decision on state discrimination against out-of-state waste in City of Philadelphia v. New Jersey¹² remains the touchstone. Before the Court was a New Jersey statute that, as implemented, closed the state borders to almost all waste from other states. Suit was filed by operators of private landfills in New Jersey, and by several cities in other states that had agreements with these operators to accept their wastes. After holding that the state law was not preempted by the federal Resource Conservation and Recovery Act (RCRA),¹³ the Court addressed whether the New Jersey law ran afoul of the dormant commerce clause.

The Court quickly dispensed with the threshold dormant commerce clause issue of whether transactions involving an allegedly valueless substance like solid waste can be regarded as "commerce" at all. While granting that a state may ban the import of out-of-state articles where their worth in interstate commerce is outweighed by the dangers they pose (as with disease-carrying objects), the Court rejected the notion that any object of trade can, by definition, be excluded from commerce-power scrutiny at the outset.

The definition point settled, the Court considered "whether [the state ban] is basically a protectionist measure, or . . . a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental."¹⁴ In deciding this key issue, the Court explained that it was the state's chosen means, not its asserted purposes, that were controlling. Whether New Jersey's purpose in enacting the ban was to preserve the environment or to save its citizens money was unimportant. Instead, what mattered was whether the state sought to achieve its purpose by discriminating against articles of commerce coming from outside the state without some articulable reason to treat them differently. In short, legitimate goals can be paired with illegitimate means.¹⁵

This analytical framework virtually dictated the Court's [20 ELR 10385] conclusion. In its view, New Jersey's ban on out-of-state waste had the effect, even if not the intention, of imposing on out-of-state commercial interests the full burden of conserving the state's remaining landfill space. As such, it was a constitutionally impermissible attempt by New Jersey "to isolate itself from a problem common to many by erecting a barrier against . . . interstate trade."¹⁶

In a coda, the Court opined that bans such as New Jersey's cannot be likened to state quarantine laws, which generally survive dormant commerce clause attack. Quarantine laws, it said, do not discriminate against interstate commerce as such, but simply prevent traffic in health-threatening articles, whatever their origin.

The Market Participant Exemption to the Dormant Commerce Clause

City of Philadelphia was as interesting for what it did not decide. Expressly unanswered was whether a state or local government, consistent with the dormant commerce clause, can restrict disposal of out-of-jurisdiction trash solely at landfills owned by the government.¹⁷ The issue is not small: 80 percent of landfills receiving municipal solid waste in the United States are state or locally owned.¹⁸ The New Jersey ban struck down in City of Philadelphia applied to wastes destined for any solid waste disposal site in New Jersey — whether public or private.

The public/private distinction had become important in commerce clause jurisprudence just two years before City of Philadelphia, when the Supreme Court handed down its decision in Hughes v. Alexandria Scrap Corp.¹⁹ In Hughes, the Court immunized from dormant commerce clause scrutiny situations where a state acts solely as a market participant, rather than as a market regulator. At issue was the payment of Maryland state funds as bounties to encourage removal of abandoned cars from state roads and their sale to within-state scrap metal processors. The Court discerned nothing in the commerce clause that barred a state, "in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others."²⁰

Since Hughes, the Supreme Court has reaffirmed the market participant exemption five times, making plain that the concept is firmly emplaced.²¹ On only the first two occasions, however, was the state or local government held entitled to invoke it. In Reeves, Inc. v. Stake,²² the exemption was applied to sustain a state preference for its own residents in the allocation of cement manufactured at a state-owned plant. The state's refusal to sell to out-of-state buyers was deemed "protectionist" only in the trivial sense that it "limited benefits generated by a state program to those who fund the state treasury and whom the state was created to serve."²³ And in White v. Massachusetts Council of Construction Employers,²⁴ the exemption led the Court to uphold a municipal requirement that at least one-half the work force on city-funded projects be composed of city residents.

By contrast, the three most recent Supreme Court opinions affirming the market participant exemption have declined to apply it on the facts presented. The discussion in South-Central Timber Development, Inc. v. Wunnicke²⁵ is most pertinent to state controls on interstate waste.²⁶ There, the Court instructed that a state is eligible for the exemption only when the contested regulation affects the same market as the one in which the state participates.²⁷

Though the Court's earlier market participant decisions reveal shifting support among the Justices, the later opinions indicate broad support without actually applying the doctrine to the marginal facts presented. It can now comfortably be stated that when the state itself is merchant or customer, the commerce clause pro tanto does not apply. Moreover, the exemption's applicability does not depend on whether the state or local government is acting in a traditional governmental role, or is instead entering a private market to operate a commercial venture. However, the Court has yet to address how the market participant exemption applies to state and local measures discouraging the import of out-of-jurisdiction waste. That task has fallen to the lower courts.

Waste Import Bans: Lower Court Rulings

Many court decisions since City of Philadelphia have wrestled with dormant commerce clause issues raised by state and local solid waste import bans. These bans were not necessarily absolute — some merely imposed preconditions on imported waste that were not imposed on endogenous waste. For example, the would-be importer might have to obtain advance permission or approval in a solid waste management plan to dispose in the jurisdiction. In each court case, however, the plaintiff did not satisfy the precondition for import, resulting in a ban on out-of-jurisdiction waste as applied to that plaintiff.

[20 ELR 10386]

At least four principles are strongly supported by the decisions. First, a state or locality is free to conserve its landfill capacity by restricting the flow of all waste, of whatever origin, into its landfills. Second, the market participant exemption allows bans on the disposal of external waste to bypass commerce clause scrutiny if confined to government-owned disposal sites. Moreover, the exemption applies even when the government site is the only disposal site in the jurisdiction — as long as no legal barriers are imposed on private landfill construction, the government does not hoard suitable sites, and future private landfills would not be barred from accepting out-of-jurisdiction waste. Third, the dormant commerce clause applies with equal force to bans on out-of-state waste imposed both by states and by political subdivisions of a state. Courts are divided, however, on how to view broader local bans that apply to all waste from outside the locality, rather than merely from outside the state. Fourth, as Supreme Court decisions suggest, any exception to the market participant exemption when a state seeks to hoard its natural resources does not apply to solid waste import bans. Solid waste landfills are not "natural resources."

The decisions divide neatly into a first generation, during 1980-1984, that straightforwardly applies the precepts of City of Philadelphia and the market participant doctrine to interstate waste bans, followed by a second generation more focused on interstitial issues.

First is Duchess Sanitation Service v. Town of Plattekill,²⁸ a challenge to an ordinance forbidding anyone other than those who reside or do business in the town from depositing within its borders garbage from outside the town. The ordinance was held to violate the commerce clause, because its only possible legitimate purpose, protection of public health, could have been achieved as well by means that did not discriminate against interstate commerce — for example, an across-the-board limit on the amount of waste that could be deposited.²⁹ However, in a companion case,³⁰ a seemingly indistinguishable ordinance was sustained on the ground that the plaintiff landfill operator had not shown that it accepted, or was likely to accept, waste from outside the state.

Next came four court decisions in 1981-1984 involving the District of Columbia and counties in Maryland. Browning-Ferris v. Anne Arundel County³¹ invalidated an ordinance barring the disposal in and transportation through the county of hazardous wastes³² not originating in the county. The court found the ordinance indistinguishable from the state law struck down in City of Philadelphia.³³

Shayne Brothers, Inc. v. Prince Georges County³⁴ held violative of the dormant commerce clause an ordinance banning transport of trash from outside the state to a dumpsite within the county, unless permission was granted by the county. Permission had been denied. City of Philadelphia was again found dispositive. The county's argument that the ban was crucial in light of the imminent exhaustion of existing landfills was readily dismissed for the same reason given in City of Philadelphia: A county is free to limit the amount of refuse going into its dumps, but it cannot in the process discriminate against out-of-state refuse purely on the basis of origin.³⁵

The two remaining cases, County Commissioners of Charles County v. Stevens³⁶ and Shayne Brothers v. District of Columbia,³⁷ both raised the precise issue reserved in City of Philadelphia — whether a state or local waste import ban limited to government-owned dumpsites can stand.³⁸ Both answered yes. Charles County found a county ban entitled to market participant immunity and hence valid, since it merely limited the benefits of the county-owned landfill to the county taxpayers who funded it. Important to the court's finding the county not a market regulator was that the ban did not restrict disposal of waste collected outside the county in any private landfill that might someday be constructed in the county, nor did the county possess unique access to potential landfill sites. Relying heavily on this decision, District of Columbia applied the market participant exemption to sustain the District's ban on disposal of imported solid waste at District-operated landfills without its prior permission.

Finally, Charles County instructs that any "natural resource" exception to the market participant rule, which prohibits hoarding of state-owned natural resources, did not apply to the Charles County landfill. Complex facilities like landfills, the court said, simply are not natural resources. Nor did the county appear to be hoarding land suitable for such landfills.³⁹

Court decisions through the Maryland/District of Columbia cases establish the broad outlines of the constitutionality of interstate waste bans.⁴⁰ Recent decisions supply the fine print.

[20 ELR 10387]

Arguably, the salient issue among the recent ban cases is the proper commerce clause test to be applied to broader local import bans — those extending not only to out-of-state waste, but also to nonlocal within-state waste. If such a ban is regarded as a facial discrimination against out-of-state waste despite the inclusion of most within-state waste, strict scrutiny applies and the ban is likely to be struck down. But, if the ban is seen as evenhanded in treating out-of-state waste the same as most within-state waste, then the more lax Pike v. Bruce Church balancing test applies.⁴¹

Evergreen Waste Systems, Inc. v. Metropolitan Service District,⁴² the sole appellate ruling on the issue, adopted the more lenient balancing test. At issue was a district ban on disposal of waste generated outside the district's three-county solid waste planning area in the district-operated landfill. Because the ban was applied by only one of the state's many landfills, and banned waste from most within-state counties along with out-of-state waste, the court declined to view the ban as facially discriminating against interstate commerce. Applying the balancing approach, the court found that the district's ordinance (1) regulated evenhandedly in treating out-of-state waste the same as most within-state waste and (2) imposed only an incidental burden on interstate commerce relative to the substantial local benefit derived — buying time for the district to site a new landfill. Hence the ordinance was sustained.⁴³

Evergreen, however, flies in the face of a prior Supreme Court ruling. In Dean Milk Co. v. City of Madison,⁴⁴ the Court held that an ordinance limiting the sale of milk not processed within five miles of the city could withstand commerce clause attack only if reasonable nondiscriminatory alternatives were unavailable, despite the city's stated objective of protecting public health and safety. Critically here, the Court noted: "It is immaterial that Wisconsin milk from outside the Madison area is subjected to the same proscription as that moving in interstate commerce."⁴⁵ In light of Dean Milk, the validity of the Evergreen holding, based on the more lenient balancing standard, is dubious.

The Evergreen issue of broad local import bans often runs implicitly through the district court decisions, though with mixed results. Contrary to Evergreen, two earlier noted cases found that local waste import bans violated the commerce clause per se, despite their inclusion of most within-state waste,⁴⁶ and another, recent decision found likewise.⁴⁷ None of these decisions, however, explicitly addresses the issue of intrastate inclusion.

Only one district court decision, Bill Kettlewell Excavating, Inc. v. Michigan,⁴⁸ directly addresses the inclusion of intrastate waste in an enacted ban. Kettlewell held on the basis of Evergreen that a county's absolute ban on out-of-county waste did not overtly discriminate against waste from other states. Like Evergreen, the district court in Kettlewell applied balancing-test scrutiny and upheld the ban. If the Evergreen/Kettlewell line of reasoning is perpetuated, the broader form of local waste ban may take its place alongside the government-landfills-only ban as an additional rampart against commerce clause attack.

LeFrancois v. Rhode Island⁴⁹ fleshed out the judicial response to a second issue: whether the market participant exemption applies when a state formally bars disposal of outside waste only at state-owned or -operated landfills, and no private landfill is available in the state for out-of-state waste. As in Charles County and District of Columbia, the court in LeFrancois upheld the prohibition, notwithstanding that the state-owned landfill was the only landfill in the state. The market participant exemption applied, the court said, because the state sought to restrict only the ability of out-of-state refuse haulers to discharge at the state-owned landfill, not the ability of private parties to construct new landfills open to all waste regardless of origin. Indeed, four landfill license applications were then pending before the state. The court cautioned, however, that more extreme circumstances in which the state, either overtly or indirectly, precluded the siting of new private landfills, may give rise to constitutional problems.

Finally, the court in Diamond Waste, Inc. v. Monroe County⁵⁰ made explicit what is implied by the market participant defense: A governmental entity cannot assert the defense in connection with a disposal facility owned and operated by some other unit of government, at least where no facility subsidies flow from the former to the latter.

Reciprocity Requirements

Many waste import bans are not absolute, but instead include bypass mechanisms, such as allowing states to obtain prior permission from the receiving jurisdiction. With reciprocity requirements, the receiving and sending states agree that each will accept the other's waste on equivalent terms, or the receiving state ensures that the sending state maintains comparable waste management standards. Despite this equal treatment aspect, interstate-waste reciprocity arrangements have met with mixed success under the dormant commerce clause. Outside the solid waste area, the Supreme Court has resoundingly rejected barriers to interstate trade based on reciprocity.

The first of the reciprocity decisions is Great Atlantic & Pacific Tea Co. v. Cottrell,⁵¹ striking down a Mississippi rule that milk from another state could be sold in Mississippi only if the sending state entered into a reciprocity agreement that it would accept Mississippi milk. Mississippi had entered into no such agreement with the sending state, [20 ELR 10388] and the Mississippi requirement in this case had the same practical effect as an absolute bar to importing out-of-state milk. Only state interests "of substantial importance," the Court declared, could save the Mississippi rule. Public health, the only such interest put forward, was easily rebuffed, since the rule allowed reciprocity agreements setting lower standards for milk shipped between producers of the two states than applied to milk produced in Mississippi for within-state consumption.

Another argument by Mississippi — that its reciprocity rule provided assurance that the other state's health standards are the substantial equivalent of its own — was also dismissed. There are means to serve this interest, said the Court, that are far less burdensome on commerce than the Mississippi rule. "Mississippi has the obvious alternative of applying its own standards of inspection to shipments of milk from a non-reciprocating state."⁵²

Two subsequent Supreme Court reciprocity decisions have yielded the same disapproving result. First, Sporhase v. Nebraska⁵³ struck down a Nebraska law blocking transfer of groundwater out of state unless the receiving state allowed transfer of its water to Nebraska on similar terms. Second, New Energy Co. v. Limbach⁵⁴ invalidated an Ohio statute awarding a sales tax credit for ethanol gas sold by dealers if it was produced in Ohio or in a state according similar tax treatment. That nonreciprocity resulted only in economic disadvantage to out-of-state sellers, rather than effectuating an absolute import prohibition, was immaterial.

Most significant, Cottrell's rejection of reciprocity has been applied to interstate waste. In Hardage v. Atkins,⁵⁵ the court voided an Oklahoma state law barring shipment into Oklahoma of industrial wastes, unless the state of origin (1) had similar standards for industrial waste disposal and (2) had entered into a reciprocity agreement with Oklahoma. The instant case was indistinguishable from Cottrell, the court said, noting in its one-sentence analysis that "[e]ven if Texas had higher standards than Oklahoma for the disposal of controlled industrial waste, such waste could not be shipped into Oklahoma unless Texas entered into a reciprocal agreement."⁵⁶ In a subsequent decision, the court clarified that it had intended earlier to strike down not only the reciprocity agreement provision in the Oklahoma statute, but the "similar standards restriction" as well.⁵⁷ Both offended the dormant commerce clause.

A more recent decision holds to the contrary, but is arguably wrongly decided and is now on appeal. In National Solid Wastes Management Association v. Alabama Department of Environmental Management,⁵⁸ the court sustained against a dormant commerce clause challenge a state statute barring commercial hazardous waste treatment or disposal facilities within the state from accepting hazardous waste generated in any state that either (1) prohibits the treatment or disposal of hazardous waste within that state or (2) has no hazardous waste facility in the state, unless the state has entered into an agreement for disposal of hazardous wastes pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act's (CERCLA's) capacity assurance provision,⁵⁹ and Alabama is a party to that agreement. The large volume of waste going to the massive Chemical Waste Management facility in Emelle, Alabama — particularly from CERCLA cleanups — reportedly prompted enactment of the challenged legislation.

The court's opinion opens with a lengthy recitation of federal law provisions that encourage state involvement in hazardous and nonhazardous waste management. In particular, the court draws attention to CERCLA's capacity assurance provision, which stipulates that states not assuring adequate capacity for handling their hazardous wastes become ineligible after October 1989 for federally conducted remedial actions. Alabama asserted that it had dutifully shouldered its waste management duties under these laws, including the waste assurance provision, and therefore no longer would tolerate wastes exported from less responsible states.

In parrying the dormant commerce clause attack, the court makes several errors. Most serious, it applies the balancing test enunciated by the Supreme Court for non-facially discriminatory statutes, rather than the stricter scrutiny used for facial discriminations. Alabama's law is plainly an instance of the latter. Further, the court fails to inquire whether some measure less burdensome of interstate commerce might serve the asserted public safety interests, for example, a ceiling on the amount of waste of whatever origin that might be disposed of within the state. Finally, the court does not discuss the considerable body of Supreme Court case law disapproving reciprocity arrangements under the commerce clause. In requiring states exporting waste into Alabama to do what Alabama has done, Alabama's statute arguably sets forth a reciprocity demand.

Despite its flaws, National Solid Wastes is an important decision in addressing what effect the broad spectrum of federal solid waste legislation has on a state's ability to restrict waste import.⁶⁰ Though the court stopped short of saying that such legislation, particularlyCERCLA's capacity assurance clause, amounted to congressional immunization from commerce clause attack, it nonetheless believed that such laws provided direct encouragement for Alabama's legislation. Under a proper reading of precedent, however, the fact that Alabama may have been motivated by a desire to bring its sister states more in line with federal policy should not have materially affected the commerce clause analysis.

[20 ELR 10389]

In sum, all but one of the foregoing cases regard reciprocity and related similar standards requirements as facially discriminatory legislation warranting strict scrutiny, and invalidation, under the dormant commerce clause. For this reason, these decisions suggest poor prospects for future reciprocity provisions adopted by states and localities to control solid waste import.

Discriminatory Fees

Case law outside the solid waste area reveals that the dormant commerce clause analysis of discriminatory fees proceeds along the same lines as that of outright barriers to interstate trade. Recently, a decision of the U.S. Court of Appeals for the Third Circuit suggested that the same parallelism exists in the solid waste realm.

Swin Resource Systems, Inc. v. Lycoming County⁶¹ arose from the county's decision to charge more for disposal in its landfill of waste generated outside the county than for waste generated within that area.⁶² Adhering to the ban decisions, the court found the county's fee system shielded by the market participant exemption. The rule of South Central Timber⁶³ created no problem, since the challenged fee system applied to the waste disposal market in which the county participated, and not, as plaintiff argued, to the interstate waste transport market.⁶⁴

Swin also extensively treated the claim that the market participant exemption offers no refuge when a state seeks to hoard a natural resource, as by banning imported waste from state-owned landfills. In contrast with manufactured goods, a state cannot obtain natural resources if it has not been naturally favored with them and a more fortunate state refuses to sell. Presumably for this reason, the Supreme Court has hinted on several occasions that limits may exist on a state's ability to invoke the market participant exemption to hoard natural resources that occur by happenstance.⁶⁵ However, the court in Swin did not have to settle the status of the natural resource exception, since preserving government-owned landfills for local use was not seen as hoarding a natural resource:

[Here] a state subdivision has used initiative to build a waste disposal facility to serve its needs. Furthermore, given Lycoming's recycling program, one could say . . . that the continuing availability of [the landfill] is not simply happenstance . . . .

This is not a case in which a state has hoarded a resource like coal or oil that is geologically peculiar to that state . . . .⁶⁶

Thus, despite Supreme Court intimations, two decisions, Swin and County Commissioners of Charles County, have rejected resource hoarding claims and upheld the market participant exemption for government disposal sites.⁶⁷

Other Discriminatory Restrictions

States have not confined themselves to the restrictions on waste import discussed above. Other recent restrictions include requirements that exporters of solid waste certify where the waste was generated, obtain certification from the sending state that the solid waste contains no hazardous waste regulated under RCRA, or file a surety bond with the receiving state. These discriminatory burdens are sure to meet their constitutional downfall in the future.⁶⁸

Related Court Decisions

A few related cases dealing with state waste disposal restrictions should be mentioned. The first grappled with a waste export ban, requiring disposal of all solid waste collected in the state at state facilities.⁶⁹ The court found no undue interference with interstate commerce in solid waste, since the plaintiff failed to show that the ban imposed significant burdens on out-of-state economic interests without redeeming state benefits. Quite arguably, however, the court applied too lenient a test. As an overt discrimination against interstate commerce, the waste export ban here should fall under the strict scrutiny standard, not the balancing test used for facially neutral state actions having only an incidental impact on interstate commerce.

At issue in another case was a county requirement less intrusive on interstate trade than an import or export ban. Under this requirement, most waste generated in the county had to be deposited at a designated transfer station for processing and transport to an out-of-county disposal site. The transfer station operation, including the cost of disposal elsewhere, was financed by tipping fees paid by the haulers who deposited waste there. The court found no dormant commerce clause infirmity in this scheme. It was not a per se violation of the doctrine because it was not economically protectionist, either by purpose or effect. Nor did it fail the alternative balancing test used in dormant commerce clause analysis, since plaintiff showed no burden on interstate commerce resulting from mandatory [20 ELR 10390] disposal at the transfer station and the local benefits of the requirement were substantial.

Finally, two other cases struck down state bans on instate storage of radioactive waste generated out of state. In the first, a Washington statute closed the state's borders to low-level radioactive waste. The ban did not withstand strict scrutiny analysis and was held ineligible for the market participant or quarantine exceptions to the dormant commerce clause.⁷⁰ In the second case, an Illinois statute banning in-state disposal of spent nuclear fuel from outside the state was also found to violate the dormant commerce clause.⁷¹ This decision includes a notable discussion of why the quarantine cases do not support waste import bans.

Other Constitutional Issues

Equal Protection

As applied to economic regulation, the equal protection clause⁷² demands only that when a state law treats one class of persons or activities different from another (e.g., interstate versus intrastate commerce in waste), the legislature "rationally could have believed" that the statutory classification would promote a legitimate governmental objective.⁷³ Whether the statutory classification is likely to achieve this objective is immaterial. The few cases to date involving equal protection challenges to waste import discriminations have all adopted this laxstandard.

Further, most court decisions accept economic protectionism goals, anathema in commerce clause law, as a "legitimate governmental objective" for purposes of equal protection. Thus, discriminatory restrictions against out-of-county waste rooted in a county's desire to preserve its landfill capacity for its own citizens have not been found offensive to equal protection. Condemned to a government-friendly level of scrutiny, unable to attack the jurisdiction's isolationist motivation, equal-protection challengers have met with no success to date.

Waste Aid Systems, Inc. v. Citrus County⁷⁴ involved a county ban on use of its landfill for out-of-county waste. The court sustained the ban, finding that its purposes — ensuring landfill availability to county residents, avoiding roadside litter, etc. — were legitimate public goals, and that the county rationally could have believed that the classification — accepting in-county waste, barring out-of-county waste — would promote those goals.

The Third Circuit has rejected equal protection attacks on two occasions involving a waste import ban and discriminatory fees. In the first, Hancock Industries v. Schaeffer,⁷⁵ the court rebuffed the argument of the waste-hauler plaintiffs that even if preservation of the county's landfill capacity was a legitimate purpose for equal protection purposes, that purpose was not in fact the county's true purpose. The court must assume, it said, that stated governmental objectives are actual objectives, unless circumstances overwhelmingly suggest otherwise. Moreover, the county's exclusionary policy was obviously rationally related to its capacity-preserving objective.

In Swin,⁷⁶ the Third Circuit readily rejected an equal protection challenge to county fees charging three times as much per ton of waste disposed when the waste originated outside the near-county region. The asserted purpose of this scheme was to extend the useful life of the county's landfill. The court repeated its assertion in Hancock that one legitimate government objective in the equal protection context is a county's decision to provide for the continued disposal of trash generated by citizens of that county. "Countless cases have held that caring for local or regional needs is a legitimate purpose of local government."⁷⁷ Thus, on finding a rational link between the challenged fee system and landfill longevity, the court put the equal protection issue to rest.

Though all three equal protection attacks in this area have failed, states and counties should not become complacent. Admittedly, the rational basis test routinely applied in equal protection review of economic legislation is lax. Still, the Supreme Court remains ambivalent on whether in-state/out-of-state discrimination in a local promotion scheme is relevant in equal protection law. The equal protection decisions on waste import restrictions clearly indicate that discrimination solely on the basis of the waste's place of origin is irrelevant. In 1985, however, the Court found violative of equal protection an Alabama tax scheme whereby out-of-state insurance companies doing business in the state were taxed at a rate much higher than domestic insurance companies. The Court stated in Metropolitan Life Insurance Co. v. Ward: "We hold that under the circumstances of this case, promotion of domestic business by discriminating against nonresident competitors is not a legitimate state purpose."⁷⁸

Though plainly relevant, Metropolitan Life was not mentioned in the three equal protection decisions on waste import limitations. One can only surmise that these courts regarded Metropolitan Life as an aberration, or at least limited to the insurance context that gave rise to it.⁷⁹ [20 ELR 10391] Another view, however, is that since the Court had been blocked by Congress from testing Alabama's tax scheme under the dormant commerce clause,⁸⁰ it could only rely on the equal protection clause to condemn a discrimination it found objectionable. It thus borrowed a nonprotectionist requisite from the dormant commerce clause and integrated it into equal protection jurisprudence. If correct, this view means that proposed federal enactments seeking to shield state and local discriminatory waste restrictions from commerce clause challenge do not free states and localities from constitutional concerns.

Due Process

The Fourteenth Amendment proscribes state deprivation of "life, liberty, or property" without due process of law.⁸¹ Thus, in a due process challenge to a state/local waste import restriction, a plaintiff argues that some property right was destroyed without due notice and opportunity to be heard (procedural due process) or without plausibly advancing a legitimate governmental objective (substantive due process).

As with equal protection, the due process attacks on waste import bans have failed. In both instances, waste-hauler plaintiffs trash haulers were unable to show that their expectations of being allowed to continue hauling out-of-county waste to a county-owned landfill amounted to a property interest cognizable under the due process clause. In one case, the absence of long-term contracts between the haulers and local solid waste authorities, as well as the absence of statutes guaranteeing plaintiffs the right to dump, defeated the plaintiffs' deprivation of property argument.⁸² In the other, the court rejected the argument that state law restrictions on the county's ability to legislate raised legitimate expectations on the part of the waste-hauler plaintiff that amounted to property.⁸³

Impairment of Contract

The Constitution prohibits any state from passing any "[l]aw impairing the Obligation of Contracts."⁸⁴ This proscription is pertinent here, since long-term contracts between municipalities, waste haulers, and landfills are common and may be undermined by state and local⁸⁵ adoption of measures to exclude outside waste.

Courts generally have not grappled with impairment of contract issues in the solid waste context. Based on Supreme Court construction of the contract clause, however, a few observations are appropriate. First, state actions furthering the public welfare are rarely struck down on impairment grounds, despite the absolute wording of the contract clause.⁸⁶ One can certainly argue that discrimination against solid waste import furthers the common welfare of the enacting jurisdiction, even if accomplished at the expense of outsiders. Second, a higher level of judicial scrutiny may be applied when government impairs a contract to which it is itself a party — whether the impairment is "necessary and reasonable" to serve an important public purpose. Such a circumstance might arise, for example, where a municipality's adoption of a waste import ban dictates its breach of a contract by which the municipality agreed to accept imported waste at its own landfill for a specified period of years. A properly justified ban may satisfy the necessary and reasonable test, though the matter is not settled.

Privileges and Immunities

Under the Constitution, citizens of each state "shall be entitled to all Privileges and Immunities of Citizens in the several States."⁸⁷ Thus, the privileges and immunities clause seeks to secure for "a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy,"⁸⁸ allowing discrimination only when nonresidents are the peculiar source of the evil at which the statute is directed. While sharing with the dormant commerce clause a concern for the vitality of the nation as a whole, however, privileges and immunities analysis is distinct. In particular, it recognizes no per se exemption for governments acting as market participants, though governmental ownership is an important factor, and possibly dispositive, in determining whether the discrimination is justified.⁸⁹

Lacking a market participant exemption, the privileges and immunities clause is potentially pivotal in judicial appraisal of interstate waste discriminations. However, the clause has long been held inapplicable to corporations and other organizations.⁹⁰ Thus, since most traffickers in interstate waste are business entities rather than individuals, the privileges and immunities clause will likely remain a minor player in waste restriction challenges.

Congress and the Constitution

Commerce Clause

The commerce clause poses no serious restraint on current congressional initiatives seeking to allow greater state and local control over the import of solid waste for disposal or other purposes.

[20 ELR 10392]

Relevant bills in the 101st Congress adopt either of two approaches. First, Congress would prohibit the transport into a state, for purposes of disposal, of anything more than a de minimis quantity of solid waste, unless the receiving state or political subdivision consented.⁹¹ In this model, Congress, rather than the states, restrains interstate commerce; the states act only to lift the prohibition. This approach is plainly within the commerce power. For Congress' part, its power under the commerce clause to regulate interstate commerce has been held sufficiently broad to allow it to impose outright prohibitions. Moreover, in sharp contrast to the states, Congress labors under no restriction against burdening interstate commerce.⁹² In the proposed model, the states act only to remove barriers on interstate commerce, not to erect them. States thus remain beyond the Balkanization fear underlying the dormant commerce clause.

The second approach, followed by a roughly equal number of bills, reverses the first. This model consists of Congress' authorizing the states to impose waste import bans, though in some bills only when the state has a federally approved solid waste management plan or has entered into an interstate waste disposal compact.⁹³ Here, too, both federal and state actions satisfy the commerce clause. The Supreme Court has long sustained Congress' use of commerce clause power to authorize states to burden interstate commerce in ways that would be impermissible lacking congressional authorization. "When Congress so chooses, state actions which it plainly authorizes are invulnerable to constitutional attack under the Commerce Clause."⁹⁴ However, Congress' intent to approve discriminatory state legislation "must be unmistakably clear" for the challenged state law to withstand dormant commerce clause attack.⁹⁵

Congressional approval of such state restrictions joins the market participant exemption, and possibly the Evergreen rationale, as another method by which states and localities can burden interstate waste selectively without transgressing the commerce clause.

Other Constitutional Issues

As with state regulation, courts are unlikely to strike down Congress' recent initiatives in interstate solid waste regulation on equal protection, due process, or impairment of contract grounds. Indeed, the federal government is less constrained under the contract clause than the states.⁹⁶ While Congress can immunize state actions from dormant commerce clause attack, it has limited, if any, power to immunize states from equal protection, due process, or impairment of contract challenges.⁹⁷ Such challenges against state waste import restrictions are therefore actionable on the merits, even if Congress acts to blunt commerce clause attack.⁹⁸ Pending bills in Congress purporting to authorize state burdens on waste import do not expressly cite any constitutional provision, but should be understood in this light nonetheless.

In sum, Congress' power to insulate state law from constitutional attack is limited, among the constitutional provisions discussed in cases to date, to the dormant commerce clause.⁹⁹ In contrast, dormant commerce clause actions against state burdens on interstate waste are alone likely to succeed.

Conclusion

Case law on interstate waste restriction since City of Philadelphia has been harmonious only as to bedrock principles. One can be comfortably certain that jurisdictions may extend the longevity of landfills within their territory by constricting the flow of all waste, independent of origin, and that overt discrimination by a state or locality against exogenous solid waste is constitutionally infirm, unless limited to government-owned disposal sites. By contrast, the courts divide on the permissibility of interstate waste reciprocity and the appropriate test for intrastate-inclusive local waste bans.

The market participant doctrine is an exemption to the dormant commerce clause that swallows the City of Philadelphia rule. At present 80 percent of landfills receiving municipal waste are reported to be state or locally owned.¹⁰⁰ Nonetheless, the remaining 20 percent of such landfills that are privately owned, plus the many hazardous waste disposal facilities in the private sector, provides [20 ELR 10393] an incentive for states and localities to continue their attempts at circumvention of commerce clause restrictions. The Court, as noted, has endorsed nondiscriminatory limitations on landfill intake if a state seeks to extend the lifetime of its landfills. This will not be economically acceptable to all, since it means at least some of the local jurisdiction's trash haulers will incur the added expense of transport to distant disposal sites. The cost, a rapidly rising one, is picked up by taxpayers.

In the absence of congressional intercession, other options for states and localities remain. Local jurisdictions, for example, may gamble on enacting waste import restrictions applicable both to nonlocal in-state waste and to out-of-state waste. Ifcourts adopt the Evergreen approach, despite its unsoundness, such restrictions will likely be sustained under the more lenient commerce clause balancing test.

Another possibility is that states will include waste import restrictions in their solid waste management plans adopted under RCRA subtitle D,¹⁰¹ or, for hazardous wastes, as part of their CERCLA capacity assurance plan. States might then argue that congressional authorization is granted, with resultant commerce clause immunity, through Environmental Protection Agency approval of either plan. This argument may figure prominently in future litigation involving interstate waste restrictions, of which National Solid Wastes is the harbinger. The courts are unlikely to find immunity under RCRA or CERCLA, however, since these statutes are silent as to congressional intent to confer dormant commerce clause immunity, and the judicial requirement that such intent be clearly stated stands firm.

1. See, e.g., OFFICE OF TECHNOLOGY ASSESSMENT, FACING AMERICA'S TRASH: WHAT'S NEXT FOR MUNICIPAL SOLID WASTE? (1989); Landfill Closings: Costly Crisis for the Northeast, Wash. Post, Dec. 14, 1987, at A1, col. 1.

An Ohio official asserts that in 1987 his state imported 7,000 tons of solid waste daily from the eastern seaboard. Celebrezze, Ohio Proposes Solutions for Its Solid Waste Problems, 18 ENV'T REP. (BNA) 2303 (1988).

2. Federal/State Issues Under RCRA, a detailed listing of recent state actions excluding, limiting, or burdening the import of out-of-state waste, is available from the National Solid Wastes Management Association, Washington, D.C.

3. For other analyses of the topic, see Celebrezze, supra note 1; Kovacs & Anderson, States as Market Participants in Solid Waste Disposal Services — Fair Competition or the Destruction of the Private Sector?, 18 ENVTL. L. 779 (1988); Note, Recycling Philadelphia v. New Jersey: The Dormant Commerce Clause, Postindustrial "Natural" Resources, and the Solid Waste Crisis, 137 U. PA. L. REV. 1309 (1989).

4. U.S. CONST. art. I, § 8, cl. 3.

5. See, e.g., Great Atl. & Pac. Tea Co. v. Cottrell, 424 U.S. 366, 370-72 (1976). This limitation on state action can be traced back to the Court's decision in Cooley v. Board of Port Wardens, 53 U.S. (12 How.) 299 (1852).

6. Recently, the Court has dubbed it the "negative aspect of the Commerce Clause." New Energy Co. v. Limbach, 486 U.S. 269, 273 (1988).

7. H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525, 537-38 (1949). As the Court stated elsewhere: "[T]his Nation is a common market in which state lines cannot be made barriers to the free flow of both raw materials and finished goods in response to the economic laws of supply and demand." Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 803 (1976).

8. 397 U.S. 137, 142 (1970) (citation omitted). For a good example of a facially nondiscriminatory statute found invalid under the Pike test, see Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333 (1977).

9. See, e.g., South Carolina State Highway Dep't v. Barnwell Bros., 303 U.S. 177, 185-86 (1938).

10. City of Philadelphia v. New Jersey, 437 U.S. 617, 624, 8 ELR 20540, 20542 (1978).

11. New Energy Co. v. Limbach, 486 U.S. 269, 278-79 (1988).

12. 437 U.S. 617, 8 ELR 20540 (1978).

13. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 004-050. The Court found in RCRA no congressional intent to preempt state regulation of interstate waste management or transportation. To the contrary, the Court noted, Congress expressly provided in RCRA that "the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies." 437 U.S. at 620-21 n.4, 8 ELR 20541 n.4.

Subsequent lower court decisions, however, have held that outright bans by local jurisdictions on hazardous waste treatment within their borders may be preempted by RCRA. See generally Stone, Supremacy and Commerce Clause Issues Regarding State Hazardous Waste Import Bans, 15 COLUM. J. ENVTL. L. 1, 8-14 (1990).

14. 437 U.S. at 624, 8 ELR at 20542.

15. See also Hardage v. Atkins, 619 F.2d 871, 873, 10 ELR 20322, 20323 (10th Cir. 1980).

16. 437 U.S. at 628, 8 ELR at 20543.

17. Id. at 627 n.6, 8 ELR at 20543 n.6.

18. Environmental Protection Agency [RCRA] Subtitle D Study: Phase I Report table 4-2 (1986). Of the approximate 9,000 landfills known to be receiving municipal waste, 77.9 percent are owned by local government, 1.4 percent by state government, and 3.9 percent by the federal government. Privately owned landfills make up the remaining 16.7 percent. The hefty majority of government-owned landfills will be somewhat offset, however, if reports that privately owned landfills are, on the average, much larger than their government-owned counterparts prove to be true.

19. 426 U.S. 794 (1976).

20. Id. at 810; see Wells & Hellerstein, The Government-Proprietary Distinction in Constitutional Law, 66 VA. L. REV. 1073 (1980).

21. For lower court decisions applying the market participant exemption outside the waste import area, see County Comm'rs v. Stevens, 473 A.2d 12, 18 n.4 (Md. Ct. App. 1984). The exemption is not without detractors, however. See, e.g., Note, supra note 3.

22. 447 U.S. 429 (1980).

23. Id. at 442.

24. 460 U.S. 204 (1983).

25. 467 U.S. 82, 14 ELR 20548 (1984).

26. The other two decisions are Wisconsin v. Gould, 475 U.S. 282 (1986) and New Energy Co. v. Limbach, 486 U.S. 269 (1988).

27. Alaska allowed the sale of certain timber from state lands only under a contract requiring purchasers to process the timber within Alaska before shipping it out of state. The market participant exemption did not extend to the regulation, the Court held, since the state's participation was in the timber sales market, not the postsale timber processing market. The Court theorized:

The limit of the market-participant doctrine must be that it allows a State to impose burdens on commerce within the market in which it is a participant, but allows it to go no further . . . . Unless the "market" is relatively narrowly defined, the doctrine has the potential of swallowing up the rule that States may not impose substantial burdens on interstate commerce . . . .

467 U.S. at 97 (footnotes omitted).

28. 51 N.Y.2d 670, 417 N.E.2d 74, 435 N.Y.S.2d 962 (1980).

29. The same point was made in City of Philadelphia with respect to New Jersey's waste import ban. 437 U.S. at 626-27, 8 ELR at 20543.

30. Monroe-Livingston Sanitary Landfill v. Town of Caledonia, 51 N.Y.2d 679, 417 N.E.2d 78, 435 N.Y.S.2d 966 (1980).

31. 292 Md. 136, 438 A.2d 269, 12 ELR 20264 (Ct. App. 1981).

32. For purposes of the dormant commerce clause, it seems to make no difference whether the solid waste restriction applies to hazardous waste, nonhazardous waste, or both.

33. Another provision of the ordinance, requiring that all persons seeking to transport hazardous wastes through the county have on file with the county an application and a license issued by the county, was struck down despite its evenhanded application to in-county and out-of-county waste. Invalidation was grounded on an inquiry under the dormant commerce clause as to whether the benefits obtained through the contested regulation could have been brought about in another way less burdensome on interstate commerce. The court found that under existing state and federal laws, the county could obtain all the information it needed as to hazardous waste shipments within its borders.

34. 556F. Supp. 182, 13 ELR 20617 (D. Md. 1983).

35. Shayne Bros. also spoke to the Supreme Court's reservation of the issue of waste import bans limited to government-owned dumpsites in City of Philadelphia. That reservation, it said, did not avail the county here, since the county ban was not limited to state-owned resources. It apparently made no difference to the court that the only authorized dumpsites in the county at the time were state owned.

36. 299 Md. 203, 473 A.2d 12 (Ct. App. 1984).

37. 592 F. Supp. 1128 (D.D.C. 1984).

38. Charles County and Browning-Ferris make explicit what other waste import ban cases merely assume — that dormant commerce clause limitations apply with equal force to all laws affecting interstate commerce, whether at the state, county, or municipal level. Charles County, 473 A.2d at 14, Browning-Ferris, 438 A.2d at 271 n.4, 12 ELR at 20265 n.4; see also Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 (1960).

39. The possible application of a natural resource exception to solid waste landfills is explored at greater length in Swin Resource Sys., Inc. v. Lycoming County discussed infra text accompanying notes 59-63.

40. See also Industrial Maintenance Serv. v. Moore, 677 F. Supp. 436 (S.D. W. Va. 1987) (statewide ban against all waste importation cannot stand).

41. See supra note 8.

42. 820 F.2d 1482, 17 ELR 20901 (9th Cir. 1987).

43. In the opinion below, the district court held that even if the district's ordinance failed the balancing test, it would still be valid, since the district was a market participant. Evergreen Waste Sys., Inc. v. Metropolitan Serv. Dist., 643 F. Supp. 127, 131 (D. Or. 1986). Curiously, the appellate decision makes no mention of market participant doctrine.

44. 340 U.S. 349 (1951).

45. Id. at 354 n.4. An identical conclusion was reached more recently by the Supreme Court under the Constitution's article 4 privileges and immunities clause, which embodies concerns of national coherence similar to those in the dormant commerce clause. United Bldg. & Constr. Trades Council v. City of Camden, 465 U.S. 208, 217-18 (1984). A dissent by Justice Blackmun reasserted the Dean Milk footnote. Id. at 235 n.16.

46. Duchess Sanitation, 51 N.Y.2d at 670, 417 N.E.2d at 74, 435 N.Y.S.2d at 962; Browning-Ferris, 292 Md. at 136, 438 A.2d at 269, 12 ELR 20264. Browning-Ferris expressly rejects severability as a solution (invalidation of a county ban on out-of-county waste only to the extent it applies to out-of-state waste). 292 Md. at 142-43 n.5, 438 A.2d at 272 n.5, 12 ELR at 20265 n.5.

47. Diamond Waste, Inc. v. Monroe County, 731 F. Supp. 505, 20 ELR 20716 (M.D. Ga. 1990).

48. 732 F. Supp. 761, (E.D. Mich. 1990).

49. 669 F. Supp. 1204, 18 ELR 20812 (D.R.I. 1987).

50. 731 F. Supp. 505, 20 ELR 20716 (M.D. Ga. 1990).

51. 424 U.S. 366 (1976).

52. Id. at 377.

53. 458 U.S. 941, 957-58 (1982).

54. 486 U.S. 269 (1988).

55. 582 F.2d 1264, 8 ELR 20719 (10th Cir. 1978).

56. Id. at 1266, 8 ELR at 20720.

57. Hardage v. Atkins, 619 F.2d 871, 10 ELR 20322 (10th Cir. 1980).

58. 729 F. Supp. 792, 20 ELR 20603 (N.D. Ala. 1990), appeal docketed, No. 90-7047 (11th Cir. Jan. 26, 1990).

59. CERCLA § 104(c)(9), 42 U.S.C. § 9604(c)(9), ELR STAT. CERCLA 013.

60. The same issue, as to both federal and state solid waste laws, was addressed in Borough of Glassboro v. Gloucester County, 98 N.J. 186, 485 A.2d 299 (1984), but only on motion for stay of a trial court order. The order directed that a soon-to-be-exhausted landfill cease accepting solid waste from Pennsylvania and from New Jersey sanitation districts not subject to interdistrict agreements regulating waste flow. Citing RCRA's implicit call for "planned management of waste flow," plus a similar mandate in the state solid waste law, the New Jersey Supreme Court found little likelihood that the order would offend the balancing test under the commerce clause and accordingly denied the stay. The high court's acceptance of the order despite its obvious facial discrimination against interstate commerce is probably best explained by the emergency circumstances and its short duration.

61. 883 F.2d 245, 20 ELR 20017 (3d Cir. 1989), cert. denied, 110 S. Ct. 1127 (1990).

62. The county's rates were $10 per ton for waste generated within the county, $13.25 per ton for waste from the nearby counties, and $30 per ton for other waste.

63. 467 U.S. at 82, 14 ELR at 20548; see also supra notes 25-27 and accompanying text.

64. The market participant defense will apparently not be a factor, however, in a pending commerce clause challenge to the state of Indiana's fee system, which will apply, when it takes effect in 1991, to all landfills in the state. The system will impose a 50 cents per ton tipping fee on waste generated within the state, but a variable, generally much higher, fee designed to eliminate the economic incentive of dumping in Indiana waste from outside. Government Suppliers Consol. Serv. v. Bayh, 734 F. Supp. 853, 20 ELR 21026 (S.D. Ind. 1990) (motion for preliminary injunction granted in part, denied in part).

65. Id. at 96, 14 ELR at 20549; Sporhase, 458 U.S. at 957; Reeves, Inc. v. Stake, 447 U.S. 429, 443-44 (1980); City of Philadelphia, 437 U.S. at 627, 8 ELR at 20543.

66. 883 F.2d at 254, 20 ELR at 20022 (quotation omitted).

67. Another waste-import ban decision asserted in dicta that when a county has neither refused access to all its landfills nor forbidden the transportation of out-of-county waste across its borders, no "hoarding" has occurred for dormant commerce clause purposes. Waste Aid Sys., Inc. v. Citrus County, 613 F. Supp. 102, 107 n.2 (M.D. Fla. 1985).

68. See, e.g., Government Suppliers Consol. Serv. v. Bayh, 734 F. Supp. 853, 871, 20 ELR 21026, 21035 (S.D. Ind. 1990) (commerce clause attack on state requirement that out-of-state waste, but not within-state waste, be certified harmless by state health officer is likely to succeed on merits).

69. Harvey & Harvey, Inc. v. Delaware Solid Waste Auth., 600 F. Supp. 1369 (D. Del. 1985). City of Philadelphia is explicit that the dormant commerce clause applies as forcefully to state efforts to keep an article of commerce inside a state as it does to efforts to keep articles outside a state. 437 U.S. at 628, 8 ELR at 20543.

70. Washington State Bldg. & Constr. Trades Council v. Spellman, 684 F.2d 627, 12 ELR 21067 (9th Cir. 1982), cert. denied, 461 U.S. 913 (1983).

71. Illinois v. General Elec. Co., 683 F.2d 206, 12 ELR 20793 (7th Cir. 1982), cert. denied, 461 U.S. 913 (1983).

72. "[N]or [shall any state] deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1. It is well established that a corporation is a "person" within the meaning of this provision. See, e.g., Western & S. Life Ins. Co. v. State Board, 451 U.S. 648, 660 n.12 (1981).

73. Western & S. Life Ins. Co., 451 U.S. at 672. A far more demanding equal protection test, applying strict scrutiny to government classifications, is employed when the classification discriminates against suspect classes (e.g., those based on race or ancestry) or impinges on fundamental interests (e.g., the rights to procreate and vote). Neither suspect classes nor fundamental interests appear to be involved in discriminations against out-of-jurisdiction solid waste. See, e.g., Hancock Indus. v. Schaeffer, 811 F.2d 225, 237, 17 ELR 20728, 20734-35 (3d Cir. 1987).

74. 613 F. Supp. 102 (M.D. Fla. 1985).

75. 811 F.2d 225, 17 ELR 20728 (3d Cir. 1987). The court did not address a dormant commerce clause attack.

76. 883 F.2d at 255-56 (3d Cir. 1989). For a discussion of the court's rejection of plaintiff's commerce clause claim, see supra notes 59-60 and accompanying text.

77. Id. at 256, 20 ELR at 20023.

78. 470 U.S. 869, 882 (1985).

79. But see Government Suppliers Consol. Serv. v. Bayh, 734 F. Supp. 853, 871, 20 ELR 21026, 21035 (S.D. Ind. 1990) (equal protection claim against state requirement that out-of-state waste be certified harmless "looks strong because the arguments under this provision parallel . . . the commerce clause claim").

80. The McCarran-Ferguson Act exempts the insurance industry from dormant commerce clause restrictions. See 470 U.S. at 880.

81. U.S. CONST. amend. XIV, § 1.

82. Hancock Indus., 619 F. Supp. at 322.

83. Waste Aid Sys., 613 F. Supp. at 102. Additionally, plaintiff had sufficient opportunity to be heard during the county's deliberations on whether to adopt the ban.

84. U.S. CONST. art. I, § 10.

85. The impairment of contracts clause, though applicable by literal terms only to states, has been held to extend as well to municipal ordinances. See, e.g., Cuyahoga Power Co. v. City of Akron, 240 U.S. 462 (1916).

86. The prevailing doctrine is that the clause "does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal . . . though contracts previously entered into between individuals may thereby be affected." Manigault v. Springs, 199 U.S. 473, 480 (1905). Or, as the Court stated decades later: "[T]he reservation of the reasonable exercise of the protective power of the States is read into all contracts." Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 444 (1934).

87. U.S. CONST. art. IV, § 2.

88. Toomer v. Witsell, 334 U.S. 385, 395 (1948), quoted in United Bldg. & Constr. Trades Council v. City of Camden, 465 U.S. 208, 216 (1984).

89. United Bldg., 465 U.S. at 219-21.

90. Hemphill v. Orloff, 277 U.S. 537 (1928); Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869).

91. See, e.g., H.R. 1995 (Rep. Watkins, D-Okla.); H.R. 2099 (Rep. Richardson, D-N.M.); H.R. 3264 (Rep. McDade, R-Pa.); H.R. 3577 (Rep. Burton, R-Ind.); S. 269 (Sen. Riegle, D-Mich.).

92. As the Supreme Court stated in Prudential Ins. Co. v. Benjamin, 328 U.S. 408 (1946):

The power of Congress over commerce exercised entirely without reference to coordinated action of the states is not restricted, except as the Constitution expressly provides, by any limitation which forbids it to discriminate against interstate commerce and in favor of local trade. Its plenary scope enables Congress not only to promote but also to prohibit interstate commerce, as it has done frequently and for a great variety of reasons.

Id. at 434 (footnote omitted).

93. See, e.g., H.R. 2723 (Rep. Kanjorski, D-Pa.); H.R. 2967 (Rep. Bonior, D-Mich.); H.R. 3268 (Rep. Olin, D-Va.); H.R. 3395 (Rep. Erdreich, D-Ala.); S. 1921 (Sen. Coats, R-Ind.); S. 2238 (Sen. Shelby, D-Ala.); S. 2468 (Sen. Breaux, D-La.).

94. Northeast Bancorp v. Board of Governors of the Federal Reserve Sys., 472 U.S. 159, 174 (1985). To similar effect: "Where state or local government action is specifically authorized by Congress, it is not subject to the Commerce Clause even if it interferes with interstate commerce." White v. Massachusetts Council of Constr. Employers, Inc., 460 U.S. 204, 213 (1983).

95. South-Central Timber, 467 U.S. at 90; see also Sporhase, 458 U.S. at 960 (Congress' intent to immunize state law must be "expressly stated.").

96. Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 733 (1984).

97. The point appears to have been squarely addressed by the Court only as to the equal protection clause of the Fourteenth Amendment and its § 5 corollary that Congress may "enforce" the Amendment's provisions. "Although we give deference to congressional decisions and classifications," the Court said, "neither Congress nor a State can validate a law that denies the rights guaranteed by the Fourteenth Amendment." Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 732-33 (1982). Thus, challenges based on Fourteenth Amendment due process are protected to the same degree. See also Massachusetts Council, 460 U.S. 215 n.1 (Blackmun, J., concurring in part, dissenting in part) (noting issue not addressed by majority opinion as to whether Congress may authorize what would otherwise violate privileges and immunities clause).

98. See, e.g., Metropolitan Life Ins., 470 U.S. at 880-81 (federal statute authorizing states to impose taxes that burden interstate commerce in the insurance field held not to preclude equal protection challenge to such state enactments). However, Congress had not attempted in this instance to immunize the state from equal protection scrutiny.

99. Query whether Congress' role in ratifying interstate compacts may be used to expand its ability to immunize state waste restrictions against constitutional attack.

100. See supra note 18 and accompanying text.

101. 42 U.S.C. §§ 6941-6949a, ELR STAT. RCRA 027-031.