City of Philadelphia v. New Jersey

No. 75-1150 (U.S. February 23, 1977)

The Supreme Court remands to the New Jersey Supreme Court the question of whether the newly-enacted Resource Conservation and Recovery Act of 1976 preempts a New Jersey statute prohibiting the importation of solid waste into the state. The state court should address the statutory nature of this question prior to Supreme Court resolution of the constitutional issue of the alleged undue burden on interstate commerce.

Mr. Justice Powell, dissenting and joined by three justices, argues that the Resource Conservation and Recovery Act's legislative history expressly disclaims preemptive effect and that the Court should decide the merits of the case.

For the state supreme court decision, see 6 ELR 20356.

Counsel for Appellants
Herbert F. Moore, Arthur Meisel
Jamieson, McCardell, Moore, Peskin & Spicer
19 Chancery Lane, Trenton NJ 08618
(609) 396-5511

John R. Padova
Solo & Padova
Lewis Tower Bldg., 15th & Locust St., Philadelphia PA 19102
(215) 545-0111

Counsel for Appellees
William F. Hyland, Attorney Genera; Mark L. First, Deputy Attorney General; Stephen Skillman, Ass't Attorney General
State House Annex, Trenton NJ 08625
(609) 292-4925

[7 ELR 20200]

PER CURIAM.

This suit challenges the constitutionality of a New Jersey statute prohibting any person from bringing into New Jersey "any solid or liquid waste which originated or was collected outside the State," except garbage to be fed to swine. New Jersey Pub. L. 1973, c. 363.The New Jersey Supreme Court held that the act was not pre-empted by a federal statute addressing questions of waste disposal, the Solid Waste Disposal Act of 1965, 42 U.S.C. § 3251 et seq., and was not unconstitutional as discriminatory against or placing an undue burden on interstate commerce. City of Philadelphia et al. v. State of New Jersey et al., 68 N.J. 451 (1975). We noted probable jurisdiction on April 5, 1976, 425 U.S. 910 (1976).

On October 21, 1976, the Resource Conservationand Recovery Act of 1976, Pub. L. 94-580, 42 U.S.C. § 6901 et seq. became law. The parties at the Court's request supplemented their briefs to address the question of the impact of the new federal statute on the New Jersey Act. Appellants argue that the Act displaces the New Jersey law, and appellees argue that it does not pre-empt or in any way undercut the validity of the New Jersey legislation. While federal pre-emption of state statutes is, of course, ultimately a question under the Supremacy Clause, U.S. Const., Art. VI, cl. 2, analysis of pre-emption issues depends primarily on statutory and not constitutional interpretation. Therefore, it is appropriate that the federal pre-emption issue be resolved before the constitutional issue of alleged discrimination against or undue burden on interestate commerce is addressed. We think it appropriate that we have the views of the New Jersey Supreme Court on the question whether or to what extent the Resource Conservation and Recovery Act of 1976 pre-empts the New Jersey statute. The judgment of the New Jersey Supreme Court is therefore vacated and the case remanded for reconsideration in the light of the Resource Conservation and Recovery Act of 1976.

So ordered.

[7 ELR 20201]

MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST join, dissenting.

The Resource Conservation and Recovery Act of 1976, Pub. L. 94-580, 42 U.S.C. § 6901 et seq. evidences a federal concern with the growing problem of waste disposal in this country. This complex statute attempts to deal with this problem in a variety of ways. Because the impact of the statute will depend in part on the regulations promulgated under it, generalizations at this time as to the effect of the statute should be made with caution. But I do think it is abundantly clear from the text of the statute and from its legislative history that Congress did not intend to pre-empt state laws such as the one at issue here. In its report on the statute the House Committee on Interstate and Foreign Commerce recognized the existence of state laws similar to this New Jersey law. H.R. Rep. No. 94-1491, 94th Cong., 2d Sess., 3, 10. The report explicitly disclaimed any pre-emptive intention.

"It is the Committee's intention that federal assistance should be an incentive for state and local authorities to act to solve the discarded materials problem.At this time federal preemption of this problem is undesirable, inefficient, and damaging to local initiative." Id., at 33.

In view of this express disclaimer, I do not understant how the Court can assume that pre-emption remains an open question.

We should decide this case on the merits and not burden the parties and the Supreme Court of New Jersey by a remand which unnecessarily creates delay, expense, and uncertainty.