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CITY OF PHILADELPHIA ET AL. V. NEW JERSEY ET AL.

APPEAL FROM THE SUPREME COURT OF NEW JERSEY

No. 77–404. Argued March 27, 1978-Decided June 23, 1978 New Jersey statute (ch. 363) that prohibits the importation of most "solid

or liquid waste which originated or was collected outside the territorial limits of the State ..." held to violate the Commerce Clause of the United States Constitution. Pp. 621-629.

(a) All objects of interstate trade merit Commerce Clause protection and none is excluded from the definition of "commerce" at the outset; hence, contrary to the suggestion of the court below, there can be no doubt that the banning of "valueless" out-of-state wastes by ch. 363 implicates constitutional protection. Bowman v. Chicago & Northwestern R. Co., 125 U. S. 465, distinguished. Pp. 621-623.

(b) The crucial inquiry here must be directed to determining whether ch. 363 is basically an economic protectionist measure, and thus virtually per se invalid, or a law directed at legitimate local concerns that has only incidental effects on interstate commerce. Pike v. Bruce Church, Inc., 397 U. S. 137, 142. Pp. 623–624.

(c) Since the evil of protectionism can reside in legislative means as well as legislative ends, it is immaterial whether the legislative purpose of ch. 363 is to protect New Jersey's environment or its economy, for whatever the purpose, 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. Both on its face and in its plain effect ch. 363 violates this principle of nondiscrimination. A State may not attempt to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade, as ch. 363 seeks to do by imposing on out-of-state commercial interests the full burden of conserving New Jersey's remaining landfill space. Pp. 625-628.

(d) The New Jersey statute cannot be likened to a quarantine law which bans importation of articles of commerce because of their innate harmfulness and not because of their origin. Though New Jersey concedes that out-of-state waste is no different from domestic waste, it has banned the former while leaving its landfill sites open to the latter, thus trying to saddle those outside the State with the entire burden of slowing the flow of wastes into New Jersey's remaining landfill sites.

Pp. 628 629. 73 N. J. 562, 376 A. 2d 888, reversed.

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STEWART, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J., joined, post, p. 629.

Herbert F. Moore argued the cause for appellants. With him on the briefs was Arthur Meisel.

Stephen Skillman, Assistant Attorney General of New Jersey, argued the cause for appellees. With him on the brief were John J. Degnan, Attorney General, and Deborah Poritz and Nathan Edelstein, Deputy Attorneys General.*

MR. JUSTICE STEWART delivered the opinion of the Court.

A New Jersey law prohibits the importation of most "solid or liquid waste which originated or was collected outside the territorial limits of the State ...." In this case we are required to decide whether this statutory prohibition violates the Commerce Clause of the United States Constitution.

I The statutory provision in question is ch. 363 of 1973 N. J. Laws, which took effect in early 1974. In pertinent part it provides:

"No person shall bring 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

*M. Jefferson Davis and Michael J. Hogan filed a brief for the Board of Chosen Freeholders of the County of Burlington, N. J., as amicus curiae urging affirmance.

Briefs of amici curiae were filed by Jeffrey B. Schwartz for the American Public Health Assn.; and by William C. Brashares for the National Solid Wastes Management Assn.

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welfare and has promulgated regulations permitting and regulating the treatment and disposal of such waste in this State.” N. J. Stat. Ann. § 13:11–10 (West Supp.

1978). As authorized by ch. 363, the Commissioner promulgated regulations permitting four categories of waste to enter the State. Apart from these narrow exceptions, however, New Jersey closed its borders to all waste from other States.

Immediately affected by these developments were the operators of private landfills in New Jersey, and several cities in other States that had agreements with these operators for waste disposal. They brought suit against New Jersey and its Department of Environmental Protection in state court, attacking the statute and regulations on a number of state and federal grounds. In an oral opinion granting the plaintiffs' motion for summary judgment, the trial court declared the law unconstitutional because it discriminated against interstate commerce. The New Jersey Supreme Court consolidated this case with another reaching the same conclusion,

1 New Jersey enacted a Waste Control Act, N. J. Stat. Ann. § 13:11-1 et seq. (West Supp. 1978), in early 1973. This Act empowered the State Commissioner of Environmental Protection to promulgate rules banning the movement of solid waste into the State. Within a year, the state legislature enacted ch. 363, which reversed the presumption and blocked the importation of all categories of waste unless excepted by rules of the Commissioner.

2 Effective as of February 1974, these regulations provided as follows:

“(a) No person shall bring into this State, or accept for disposal in this State, any solid or liquid waste which originated or was collected outside the territorial limits of this State. This Section shall not apply to:

“1. Garbage to be fed to swine in the State of New Jersey;

"2. Any separated waste material, including newsprint, paper, glass and metals, that is free from putrescible materials and not mixed with other solid or liquid waste that is intended for a recycling or reclamation facility;

"3. Municipal solid waste to be separated or processed into usable secondary materials, including fuel and heat, at a resource recovery facility

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Hackensack Meadowlands Development Comm'n v. Municipal Sanitary Landfill Auth., 127 N. J. Super. 160, 316 A. 2d 711, and reversed, 68 N. J. 451, 348 A. 2d 505. It found that ch. 363 advanced vital health and environmental objectives with no economic discrimination against, and with little burden upon, interstate commerce, and that the law was therefore permissible under the Commerce Clause of the Constitution. The court also found no congressional intent to pre-empt ch. 363 by enacting in 1965 the Solid Waste Disposal Act, 79 Stat. 997, 42 U. S. C. § 3251 et seq., as amended by the Resource Recovery Act of 1970, 84 Stat. 1227.

The plaintiffs then appealed to this Court. After noting probable jurisdiction, 425 U. S. 910, and hearing oral argument, we remanded for reconsideration of the appellants' preemption claim in light of the newly enacted Resource Conservation and Recovery Act of 1976, 90 Stat. 2795. 430 U. S. 141. Again the New Jersey Supreme Court found no federal pre-emption of the state law, 73 N. J. 562, 376 A. 2d 888, and again we noted probable jurisdiction, 434 U. S. 964. We agree with the New Jersey court that the state law has not been pre-empted by federal legislation. The dispositive

provided that not less than 70 per cent of the thru-put of any such facility is to be separated or processed into usable secondary materials; and

“4. Pesticides, hazardous waste, chemical waste, bulk liquid, bulk semiliquid, which is to be treated, processed or recovered in a solid waste disposal facility which is registered with the Department for such treatment, processing or recovery, other than by disposal on or in the lands of this State.” N. J. Admin. Code 7:14.2 (Supp. 1977).

3 The decision of the New Jersey Supreme Court disposed of the appellants' pre-emption and Commerce Clause claims, but remanded the case to the trial court for further proceedings on the other claims. The appellants then dismissed with prejudice the other counts in their complaint so that there would be a final judgment from which they could appeal to this Court.

* The surviving provisions of the 1965 Solid Waste Disposal Act, 79 Stat. 997, the Resource Discovery Act of 1970, 84 Stat. 1227, and the Resource

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question, therefore, is whether the law is constitutionally permissible in light of the Commerce Clause of the Constitution."

II

Before it addressed the merits of the appellants' claim, the New Jersey Supreme Court questioned whether the interstate movement of those wastes banned by ch. 363 is "commerce" at all within the meaning of the Commerce Clause. Any doubts on that score should be laid to rest at the outset.

The state court expressed the view that there may be two definitions of “commerce" for constitutional purposes. When relied on "to support some exertion of federal control or regulation,” the Commerce Clause permits "a very sweeping concept” of commerce. 68 N. J., at 469, 348 A. 2d, at 514. But when relied on "to strike down or restrict state legislation," that Clause and the term "commerce" have a "much more confined ... reach." Ibid.

The state court reached this conclusion in an attempt to

Conservation and Recovery Act of 1976, 90 Stat. 2795, are now codified as the Solid Waste Disposal Act, found at 42 U. 8. C. $ 6901 et seq. (1976 ed.).

From our review of this federal legislation, we find no “clear and manifest purpose of Congress," Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230, to pre-empt the entire field of interstate waste management or transportation, either by express statutory command, see Jones v. Rath Packing Co., 430 U. S. 519, 530,531, or by implicit legislative design, see City of Burbank v. Lockheed Air Terminal, 411 U. S. 624, 633. To the contrary, Congress expressly has provided that "the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies ...." 42 U. S. C. $ 6901 (a) (4) (1976 ed.). Similarly, ch. 363 is not pre-empted because of a square conflict with particular provisions of federal law or because of general incompatibility with basic federal objectives. See Ray v. Atlantic Richfield Co., 435 U. S. 151, 158; Jones v. Rath Packing Co., supra, at 540–541. In short, we agree with the New Jersey Supreme Court that ch. 363 can be enforced consistently with the program goals and the respective federal-state roles intended by Congress when it enacted the federal legislation.

5 U. S. Const., Art. I, § 8, cl. 3.

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