Supreme Court Voids New Jersey Ban on Waste Importation

On June 23, the United States Supreme Court, in Philadelphia v. New Jersey,¹ struck down a 1974 New Jersey statute which prohibited liquid and solid waste from being transported into the state for disposal. The statute,² designed to protect the state's rapidly diminishing landfill sites and at the same time reduce the environmental threat posed by the treatment and disposal in New Jersey of waste collected elsewhere, was declared to be an unconstitutional burden on the flow of interstate commerce.

Background

The New Jersey law was prompted by legislative alarm over the ever-increasing rate at which in-state, private landfill operators were accepting solid waste generated outside the state. The combined volume of domestic and out-of-state waste threatened to exhaust quickly the capacity of existing landfills and raised the prospect that new sites would have to be developed on scarce open lands, including precious wetland areas. The New Jersey legislature enacted the waste control act (ch. 363) in an effort to arrest the rapid depletion of the remaining sites [8 ELR 10160] while new techniques of waste disposal and resource recovery were developed. Shortly after the statute went into effect, private landfill operators, along with several cities in other states that had entered into long-term agreements with these operators for waste disposal, brought suit in state court challenging its validity. In an unreported decision, the trial court ruled in plaintiffs' favor, holding that the statute unconstitutionally burdened interstate commerce. The New Jersey Supreme Court reversed,³ finding that the statute advanced legitimate health and environmental objectives with little effect upon interstate commerce, whereupon plaintiffs appealed to the United States Supreme Court. After oral arguments, the Supreme Court remanded the case to the New Jersey Supreme Court⁴ for a determination of whether ch. 363 had been preempted by the Resource Conservation and Recovery Act of 1976.⁵ The New Jersey Supreme Court found no federal preemption,⁶ and once again plaintiffs appealed to the Supreme Court.

The Decision

Writing for the seven-man majority, Justice Stewart first noted that ch. 363 is neither squarely in conflict with specific provisions of federal law⁷ nor generally incompatible with basic federal objectives. The collection and disposal of solid wastes, though within the purview of the Commerce Clause, was found to have been left by Congress primarily to the states, and thus the New Jersey Supreme Court was correct in finding no federal preemption.

The dispositive issue, Stewart declared, is whether ch. 363 violates Commerce Clause restrictions against state-imposed burdens on commerce.⁸ That provision has long prohibited parochial legislation designed to ensure the economic well-being of one state at the expense of the free and unfettered flow of interstate commerce:

Where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected. [footnotes omitted] The clearest example of such legislation is a law that overtly blocks the flow of interstate commerce at a State's borders.⁹

Stewart reasoned that by discriminating against solid and liquid waste coming from outside the state without justification for the distinction, the New Jersey law clearly violates the Commerce Clause prohibition against "protectionist" legislation. Although the Court recognized that legitimate legislative objectives may underlie the New Jersey scheme, it found that the statute sought to pursue these legislative goals by the illegitimate means of isolating the state from the national economy.

New Jersey had argued that ch. 363 is no different from quarantine laws which, although clearly discriminatory, have been upheld by the Supreme Court as legitimate state efforts to protect the health of its citizens from "noxious articles."¹⁰ In rejecting this argument, the Court noted that its prior decisions upholding the constitutionality of quarantine measures were based upon the danger posed by the very movement of the prohibited article. These measures are clearly distinguishable from the New Jersey statute, which addresses itself not to the danger involved in transporting waste but rather to the health hazards arising upon its disposal. On this basis, the Court found no constitutional justification for distinguishing waste produced within New Jersey from waste shipped in from out-of-state.

In declaring ch. 363 to be in violation of the Commerce Clause, the Court emphasized that New Jersey may elect to prohibit the flow of all wastes into its remaining landfills, but the Constitution clearly bars it from selectively excluding waste from other states while domestic waste continues to be disposed of within the state, absent some reason to treat the two differently.

In dissent, Justice Rehnquist, joined by Chief Justice Burger, assailed the majority for its unwarranted distinction between the danger posed by the mere movement of an article of interstate commerce and the disposal of such an article within a state. According to the dissenters, a state should be able to ban not only the importation of items which pose a health hazard simply by their transportation but also those items for which, once safely transported into the state, disposal poses an equally significant danger to the public health.

Significance

The Court's decision in Philadelphia v. New Jersey raises some interesting questions about the permissibility of environmental legislation that protects the resources and people of a state at the expense of the free flow of interstate commerce. The opinion clearly indicates that a state may not discriminate against an article of interstate commerce absent some justification for the disparate treatment. Where the only difference between the in-state and out-of-state items is their place of origin, there is insufficient justification for treating the two items differently. The Court's concern is that a state may erect trade barriers which serve to benefit the economic interest of that state's citizens at the expense of interstate commerce. There is, however, some suggestion in the majority opinion that had New Jersey been able to establish a qualitative difference between its own waste and the waste coming in from out-of-state (e.g., that the latter had a significantly higher toxic metal content), it [8 ELR 10161] would have been justified in treating the two differently.¹¹ If, for example, New Jersey were simply to set landfill standards which banned all waste containing more than a certain percentage of particular toxic metals on the basis of the documented harms which they cause in the environment and this standard in practice served to keep out Philadelphia's waste, such an approach appears to be permissible under Philadelphia v. New Jersey, even though it would constitute de facto discrimination.

In addition, where the transportation of an item into or through the state independently poses significant danger to the health and safety of a state's citizens, a state may, under Philadelphia v. New Jersey and prior decisions,¹² take steps to prohibit importation of the noxious item. In the language of the majority, articles of commerce "the very movement [of which] endangers health"¹³ may be denied entry into a state. The clearest example of this type of regulation is a quarantine law which, for instance, bars importation of diseased cattle. As the Court noted,¹⁴ New Jersey did not claim that the mere transportation of wastes from Philadelphia endangered the health of its citizens. Nor is it likely that the danger of accidental releases of waste during transport will ever become so great as to warrant state regulation on the order of that authorized in a quarantine situation.

There are substances, however, the mere transportation of which into or through a state may pose a danger to public health sufficient to warrant state regulation barring the transportation or disposal of that item within the state. In particular, the interstate transportation of nuclear fuels, chlorine gas, and similar substances involving unusually high transportation risks raise serious questions about the proper extent of the state's regulatory powers. Philadelphia v. New Jersey seems to suggest that state prohibitions against the disposal of nuclear waste generated out of state are impermissible. On the other hand, such statutes might be deemed consistent with Philadelphia if coupled with a supportable legislative finding that the transportation of such materials presents independently sufficient environmental risks to justify a discriminatory prohibition.

Philadelphia makes it clear, however, that when such statutes are challenged the initial question must be that of federal preemption, an issue more likely to be dispositive of cases outside the municipal waste context. For example, Congress already acted to regulate the interstate shipment of dangerous substances¹⁵ and is of course deeply immersed in the regulation of nuclear energy and materials.¹⁶ Whether preemption of these areas has been effected is a question of sharply increased interest and controversy.¹⁷ Even if the courts were ultimately to find that Congress had not preempted management of these sectors of commerce, federal intervention would likely be forthcoming should a plethora of such state laws appear.

Finally, states for which disposal of solid and liquid waste is becoming increasingly difficult due to limited landfi sites will likely devote a great deal of time to development of alternative methods of waste regulation permissible under Philadelphia v. New Jersey. One such alternative would be for a state to prohibit disposal of any waste product whatsoeveriwithin its borders, but such an approach would be impractical for states faced with increasing amounts of domestic waste. States concerced about the rapid exhaustion of their landfill sites or the environmental hazards associated with handling large quantities of sludge may also choose to impose a limit on the amount of sludge to be accepted every year. Once that limit is reached, both in-state and out-of-state sources of sludge would presumably then be forced to turn to other states for disposal.

Other alternatives for regulating solid waste disposal are certainly available. Any such scheme, however, must comport with the clear message of Philadelphia v. New Jersey that protectionist discrimination against out-of-state waste is prohibited in the absence of a showing that such products create more serious health and environment problems than do in-state wastes.

1. 46 U.S.L.W. 4801, 8 ELR 20540 (June 23, 1978).

2. N.J. REV. STAT. § 13:1I-10 provides that:

No person shall being into this state any solid or liquid waste which originated or was collected outside the territorial limits of the State, except garbage to be fed to swine in the State of New Jersey, until the commissioner [of the state Department of Environmental Protection] shall determine that such action can be permitted without endangering the public health, safety and welfare and has promulgated regulations permitting and regulating the treatment and disposal of such waste in this state.

3. Hackensack Meadowlands Development Comm'n v. Municipal Sanitary Landfill Auth., 68 N.J. 451, 348 A.2d 505, 6 ELR 20356 (1975).

4. City of Philadelphia v. New Jersey, 430 U.S. 141, 7 ELR 20200 (Feb. 23, 1977).

5. Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901-6987, ELR STAT. & REG. 41901.

6. Philadelphia v. State 73 N.J. 562, 376 A.2d 888, 7 ELR 20818 (June 20, 1977).

7. SolidWaste Disposal Act of 1965, 79 Stat. 997, as amended by the Resource Recovery Act of 1970, 84 Stat. 1227, and the Resource Conservation and Recovery Act of 1976, 90 Stat. 2795, currently codified at 42 U.S.C. §§ 6901-6987, ELR STAT. & REG. 41901.

8. U.S. CONST. art. I, § 8, cl. 3 provides that "Congress shall … have the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes…"

9. 46 U.S.L.W. at 4803, 8 ELR at 20542.

10. See Savage v. Jones, 225 U.S. 501 (1911) (state statute prohibiting importation of adulterated or misbranded articles upheld); Asbell v. Kansas, 209 U.S. 251 (1907) (state allowed to prohibit importation of unhealthy swine or cattle); Crossman v. Lurman, 192 U.S. 189 (1903) (Court upheld state regulation of decayed or noxious foods).

11. "[W]hatever New Jersey's ultimate purpose," Justice Stewart declared, "it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently." 46 U.S.L.W. at 4804, 8 ELR at 20543.

12. See Asbell v. Kansas, 209 U.S. 251 (1907); Crossman v. Lurman, 192 U.S. 189 (1903).

13. 46 U.S.L.W. at 4804, 8 ELR at 20543.

14. Id.

15. Hazardous Materials Transportation Act (HMTA), 49 U.S.C. § 1801 et seq. (1976).

16. Atomic Energy Act, 42 U.S.C. §§ 2210 et seq. (1954).

17. A provision of the Health Code of the City of New York (§ 175.111) banning all shipments of nuclear materials within the city without a permit was recently certified by the Department of Transportation to be consistent with the requirements of the HMTA. 43 C.F.R. pt. 16954 (April 20, 1978). The city's regulation of nuclear materials has also been challenged in federal court by the United States. U.S. v. City of New York, Civ. No. 76-273 (S.D.N.Y., filed Jan. 16, 1976). Plaintiff's motion for temporary injunctive relief was denied on Jan. 30, 1976, and the case is now pending. See also England, Recent Regulatory Developments Concerning the Transportation of Nuclear Fuel and Other Radioactive Materials, 7 ENV. L. 203 (1977); Comment, Federal Preemption of State Laws Controlling Nuclear Power, 64 GEO. L.J. 1323 (1976).