C & A CARBONE, INC., ET AL.,
PETITIONERS v. TOWN OF CLARKSTOWN,
NEW YORK
No. 92-1402
SUPREME COURT OF THE UNITED STATES
511 U.S. 383; 114 S. Ct. 1677; 128 L. Ed. 2d 399; 1994 U.S. LEXIS 3477; 62
U.S.L.W. 4315; 38 ERC (BNA) 1529; 94 Cal. Daily Op. Service 3443; 94 Daily
Journal DAR 6577; 24 ELR 20815; 8 Fla. L. Weekly Fed. S 96
December 7, 1993, Argued
May 16, 1994, Decided
PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE APPELLATE DIVISION, SUPREME
COURT OF NEW YORK, SECOND JUDICIAL DEPARTMENT.
DISPOSITION: 182
App. Div. 2d 213, 587 N. Y. S. 2d 681, reversed and remanded.
CASE SUMMARY
PROCEDURAL
POSTURE: Petitioner appealed a
decision of the Appellate Division of the Supreme Court of New York, Second
Judicial Department, that held a local ordinance, Clarkstown, N.Y., Local Laws
No. 9 (1990), did not violate the Commerce
Clause, U.S. Const. art. I , § 8, cl. 3.
OVERVIEW: Respondent built a solid waste recycling center and passed an
ordinance that required all solid waste generated in the town to pass through
its new center. This was done so that the town could assess a handling fee and
recoup its cost to build the center. Petitioner was in the business of processing
solid waste and did not use respondent's facility. Petitioner was cited for
violating the town's ordinance, and petitioner filed suit in federal court
challenging it. The town filed a state court action, and the ordinance was
ruled constitutional. The state appellate courts affirmed that ruling. The
court reversed because the ordinance violated the Commerce
Clause, U.S. Const. art. I, § 8, cl. 3, as it favored local enterprises and
discriminated against non-local entities.
OUTCOME: The state court decision was reversed and remanded because
local government could not use its regulatory powers to favor local enterprises
and discriminate against non-local entities.
SUMMARY:
A town in New York State adopted a flow control ordinance requiring that before
leaving the town, all nonrecyclable nonhazardous solid waste generated within
the town, or generated outside the town and brought into the town, be processed
at a designated transfer station that, under an agreement between the town and
a local private contractor calling for the contractor to construct the station
and operate it for 5 years, was to be purchased by the town from the contractor
for $ 1 after the 5-year period. In order to amortize the cost of the transfer
station, the town was allowing the contractor to charge haulers who deposited
waste at the station a tipping fee of $ 81 per ton, which rate exceeded the
disposal cost of unsorted solid waste on the private market. After a company,
which was engaged in the processing of solid waste and operated in the town a
recycling center similar to the town's transfer station, was discovered to be
shipping nonrecyclable waste from the town to other states, the town sought an
injunction in the New York Supreme Court, Rockland County, requiring the
company to ship such waste to the transfer station. The company responded by
suing in the United States District Court for the Southern District of New York
to enjoin the flow control ordinance. Finding a sufficient likelihood that the
ordinance violated the Federal
Constitution's commerce clause (Art I, 8, cl 3), the District Court granted
the injunction sought by the company (770
F Supp 848). Subsequently the New York Supreme Court granted summary
judgment to the town and ordered the company to comply with the ordinance. The
District Court then dissolved its injunction. The New York Appellate Division,
Second Department, (1) held that the ordinance did not discriminate against
interstate commerce, and (2) affirmed the New York Supreme Court judgment (182
App Div 2d 213, 587, NYS 2d 681). The New York Court of Appeals denied the
company's motion for leave to appeal (80
NYS 2d 760, 605 NE 2d 874).
On certiorari, the United States Supreme Court reversed. In an opinion by
Kennedy, J., joined by Stevens, Scalia, Thomas, and Ginsburg, JJ., it was held
that the ordinance (1) regulated interstate commerce, because (a) the company's
recycling center processed waste from places other than the town, including from
out of state, and (b) the ordinance (i) drove up the cost for out-of-state
interests to dispose of their solid waste, and (ii) deprived out-of-state
businesses of access to a local market; and (2) violated the commerce
clause by depriving competitors, including out-of-state firms, of access to
a local market, because (a) the ordinance (i) discriminated by allowing only
the favored operator to process waste within the town, (ii) hoarded solid
waste, and the demand to get rid of it, for the benefit of the preferred
processing facility, and (iii) squelched competition in waste-processing
service, and (b) the town (i) had nondiscriminatory alternatives, such as
uniform safety regulations enacted without the object to discriminate, for
addressing the health and environmental problems alleged to justify the
ordinance, (ii) could not justify the ordinance as a way to steer solid waste
away from out-of-town disposal sites that the town might deem harmful to the
environment, where to do so would extend the town's police power beyond its
jurisdictional bounds, and (iii) could subsidize the facility through general
taxes or municipal bonds.
O'Connor, J., concurring in the judgment, (1) agreed with the majority that the
ordinance violated the commerce
clause, but (2) expressed the view that the ordinance was unconstitutional
not because of facial or effective discrimination against interstate commerce,
but rather because the ordinance imposed an excessive burden on interstate
commerce.
Souter, J., joined by Rehnquist, Ch. J., and Blackmun, J., dissenting,
expressed the view that (1) there was no evidence that the ordinance caused
discrimination against out-of-town processors, because there was no evidence in
the record that such processors had lost business as a result of the ordinance,
(2) the ordinance was not protectionist in its purpose or effect, and (3)
protection of the public fisc was a legitimate local benefit directly advanced
by the ordinance.
COUNSEL:
Betty Jo Christian argued the cause for petitioners. With her on the briefs
were Paul J. Ondrasik, Jr., David Silverman, Kenneth Resnik, and Charles G.
Cole.
William C. Brashares argued the cause for respondent. With him on the brief
were Murray N. Jacobson and Richard A. Glickel.
*
* Briefs of amici
curiae urging reversal were filed for Incorporated Villages of Westbury,
Mineola, and New Hyde Park et al. by Lawrence W. Boes, Jerome F. Matedero, John
M. Spellman, and Donna M. C. Giliberto; for the Chemical Manufacturers
Association et al. by Theodore L. Garrett; and for the National Solid Wastes
Management Association by Bruce L. Thall and Bruce J. Parker.
Briefs of amici curiae urging affirmance were filed for the State of New Jersey
by Robert J. Del Tufo, Attorney General, Mary C. Jacobson, Assistant Attorney
General, and Carla Vivian Bello, Senior Deputy Attorney General; for the State
of Ohio et al. by Lee Fisher, Attorney General, and Susan E. Ashbrook and Bryan
F. Zima, Assistant Attorneys General; and by the Attorneys General and other
officials for their respective jurisdictions as follows: Charles E. Cole,
Attorney General of Alaska, Grant Woods, Attorney General of Arizona, Richard
Blumenthal, Attorney General of Connecticut, Charles M. Oberly III, Attorney
General of Delaware, Robert A. Butterworth, Attorney General of Florida, Robert
A. Marks, Attorney General of Hawaii, Roland W. Burris, Attorney General of
Illinois, Pamela Carter, Attorney General of Indiana, Bonnie J. Campbell,
Attorney General of Iowa, Michael E. Carpenter, Attorney General of Maine,
Scott Harshbarger, Attorney General of Massachusetts, Frank J. Kelley, Attorney
General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, and
Beverly Connerton and Stephen Shakman, Assistant Attorneys General, Joseph P.
Mazurek, Attorney General of Montana, Michael F. Easley, Attorney General of
North Carolina, Theodore R. Kulongoski, Attorney General of Oregon, Ernest D.
Preate, Jr., Attorney General of Pennsylvania, Pedro R. Pierluisi, Attorney
General of Puerto Rico, T. Travis Medlock, Attorney General of South Carolina,
Stephen D. Rosenthal, Attorney General of Virginia, and James E. Doyle,
Attorney General of Wisconsin; for the State of New York et al. by Robert
Abrams, Attorney General, Jerry Boone, Solicitor General, Andrea Green, Deputy
Solicitor General, John J. Sipos and Gordon J. Johnson, Assistant Attorneys
General, O. Peter Sherwood, Leonard J. Koerner, and Martin Gold; for Prince
George's County, Maryland, et al. by Lewis A. Noonberg, Charles W. Thompson,
Jr., and Michael P. Whalen; for Rockland County, New York, by Ilan S.
Schoenberger, for the County of San Diego, California, by Lloyd M. Harmon, Jr.,
Diane Bardsley, Scott H. Peters, W. Cullen MacDonald, Eric S. Petersen, and
Jerome A. Barron; for the City of Indianapolis, Indiana, et al. by Scott M.
DuBoff, Pamela K. Akin, Felshaw King, Mary Anne Wood, Michael F. X. Gillin,
John D. Pirich, David P. Bobzien, Robert C. Cannon, and Patrick T. Boulden; for
the City of Springfield, Missouri, by Stuart H. Newberger, Jeffrey H. Howard,
and Clifton S. Elgarten; for the Town of Smithtown, New York, et al. by W.
Cullen MacDonald, Richard L. Sigal, Eric S. Petersen, and Jon A. Gerber; for
the Solid Waste Disposal Authority of the city of Huntsville, Alabama, by
Charles H. Younger; for the Clarendon Foundation by Ronald D. Maines; for the
National Association of Bond Lawyers by C. Baird Brown, Robert B. McKinstry,
Jr., and Brendan K. Collins; for the National Association of Counties et al. by
Richard Ruda; for Ogden Projects, Inc., by Robert C. Bernius and Jeffrey R.
Horowitz; and for the Solid Waste Association of North America et al. by Barry
S. Shanoff, B. Richard Marsh, and Robert D. Thorington.
JUDGES:
KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SCALIA,
THOMAS, and GINSBURG, JJ., joined. O'CONNOR, J., filed an opinion concurring in
the judgment, post, p. 401. SOUTER, J., filed a dissenting opinion, in which
REHNQUIST, C. J., and BLACKMUN, J., joined, post, p. 410.
OPINION BY: KENNEDY
OPINION
[*385] [***405]
[**1680] JUSTICE KENNEDY delivered the
opinion of the Court.
As solid waste output continues apace and landfill capacity becomes more costly
and scarce, state and local governments
[*386]
are expending significant resources to develop trash control systems that are
efficient, lawful, and protective of the environment. The difficulty of their
task is evident from the number of recent cases that we have heard involving
waste transfer and treatment. See
Philadelphia
v.
New Jersey, 437 U.S. 617, 57 L. Ed. 2d 475, 98 S. Ct. 2531 (1978);
Chemical
Waste Management, Inc. v.
Hunt, 504 U.S. 334, 119 L. Ed. 2d 121, 112
S. Ct. 2009 (1992);
Fort
Gratiot Sanitary Landfill, Inc. v.
Michigan Dept. of Natural Resources,
504 U.S. 353, 119 L. Ed. 2d 139, 112 S. Ct. 2019 (1992);
Oregon Waste
Systems, Inc. v.
Department of Environmental Quality of Ore.,
ante, p. 93. The case decided today, while perhaps a small new chapter in
that course of decisions, rests nevertheless upon well-settled principles of
our Commerce
Clause jurisprudence.
[***LEdHR1A] LEdHN[1A][1A]We consider a so-called
flow control ordinance, which requires all solid waste to be processed at a
designated transfer station before leaving the municipality. The avowed purpose
of the ordinance is to retain the processing fees charged at the transfer
station to amortize the cost of the facility. Because it attains this goal by
depriving competitors, including out-of-state firms, of access to a local
market, we hold that the flow control ordinance violates the Commerce
Clause.
The town of Clarkstown, New
York, lies in the lower Hudson River
Valley, just upstream from the Tappan Zee Bridge
and by highway minutes from New
Jersey. Within the town limits are the village of Nyack
and the hamlet of West Nyack. In August 1989,
Clarkstown entered into a consent
[*387]
decree with the New York State Department of Environmental Conservation. The
town agreed to close its landfill located on Route 303 in West
Nyack and build a new solid waste transfer station on the same
site. The station would receive bulk solid waste and separate recyclable from
nonrecyclable items. Recyclable waste would be baled for shipment to a recycling
facility; nonrecyclable waste, to a suitable landfill or incinerator.
The cost of building the transfer station was estimated at $ 1.4 million. A
local private contractor agreed to construct the facility and operate it for
five years, after which the town would buy it for $ 1. During those five years,
the town guaranteed a minimum waste flow of 120,000 tons per year, for which
the contractor could charge the hauler a so-called tipping fee of $ 81 per ton.
If the station received less than 120,000 tons in a year, the town promised to
[***406] make up the tipping fee deficit. The
object of this arrangement was to amortize the cost of the transfer station:
The town would finance its new facility with the income generated by the
tipping fees.
The problem, of course, was how to meet the yearly guarantee. This difficulty
was compounded by the fact that the tipping fee of $ 81 per ton exceeded the
disposal cost of unsorted solid waste on the private market. The solution the
town adopted was the flow control ordinance here in question, Local Laws 1990,
No. 9 of the Town of Clarkstown
(full text in Appendix). The ordinance requires all nonhazardous solid waste
within the town to be deposited at the Route 303 transfer station.
Id.,
§
3.C (waste generated within the town), § 5.A (waste generated outside and
brought in). Non-compliance is punishable by as much as a $ 1,000 fine and up
to 15 days in jail. § 7.
The petitioners in this case are C & A Carbone, Inc., a company engaged in
the
[**1681] processing of solid waste, and
various related companies or persons, all of whom we designate Carbone. Carbone
operates a recycling center in Clarkstown,
[*388]
where it receives bulk solid waste, sorts and bales it, and then ships it to
other processing facilities -- much as occurs at the town's new transfer
station. While the flow control ordinance permits recyclers like Carbone to
continue receiving solid waste, §
3.C, it requires them to bring the nonrecyclable residue from that waste to
the Route 303 station. It thus forbids Carbone to ship the nonrecyclable waste
itself, and it requires Carbone to pay a tipping fee on trash that Carbone has
already sorted.
In March 1991, a tractor-trailer containing 23 bales of solid waste struck an
overpass on the Palisades
Interstate Parkway. When the police investigated
the accident, they discovered the truck was carrying household waste from
Carbone's Clarkstown plant to an Indiana
landfill. The Clarkstown police put Carbone's plant under surveillance and in
the next few days seized six more tractor-trailers leaving the facility. The
trucks also contained nonrecyclable waste, originating both within and without
the town, and destined for disposal sites in Illinois,
Indiana, West Virginia,
and Florida.
The town of Clarkstown sued Carbone in New York
Supreme Court, Rockland
County, seeking an
injunction requiring Carbone to ship all nonrecyclable waste to the Route 303
transfer station. Carbone responded by suing in United States District Court to
enjoin the flow control ordinance. On July 11, the federal court granted
Carbone's injunction, finding a sufficient likelihood that the ordinance
violated the Commerce
Clause of the United States Constitution.
C.
& A. Carbone, Inc. v.
Clarkstown, 770 F. Supp. 848 (SDNY 1991).
Four days later, the New York
court granted summary judgment to respondent. The court declared the flow
control ordinance constitutional and enjoined Carbone to comply with it. The
federal court then dissolved its injunction.
The Appellate Division affirmed. 182
A.D.2d 213, 587 N.Y.S.2d 681 (2d Dept. 1992). The court found that the
[*389] ordinance did not discriminate against
interstate commerce because it "applies evenhandedly to all solid waste
processed within the Town, regardless of point of origin."
Id.,
at 222, 587 N.Y.S.2d at 686. The New York Court of Appeals denied Carbone's
motion for leave
[***407] to appeal. 80
N. Y. 2d 760, 605 N.E.2d 874 (1992). We granted certiorari, 508
U.S. 938 (1993), and now reverse.
[***LEdHR2A] LEdHN[2A][2A]At the outset we
confirm that the flow control ordinance does regulate interstate commerce,
despite the town's position to the contrary. The town says that its ordinance
reaches only waste within its jurisdiction and is in practical effect a
quarantine: It prevents garbage from entering the stream of interstate commerce
until it is made safe. This reasoning is premised, however, on an outdated and
mistaken concept of what constitutes interstate commerce.
While the immediate effect of the ordinance is to direct local transport of
solid waste to a designated site within the local jurisdiction, its economic
effects are interstate in reach. The Carbone facility in Clarkstown receives
and processes waste from places other than Clarkstown, including from out of
State. By requiring Carbone to send the nonrecyclable portion of this waste to
the Route 303 transfer station at an additional cost, the flow control
ordinance drives up the cost for out-of-state interests to dispose of their
solid waste. Furthermore, even as to waste originant in Clarkstown, the
ordinance prevents everyone except the favored local operator from performing
the initial processing step. The ordinance thus
HN1deprives
out-of-state businesses of access to a local market. These economic effects are
more than enough to bring the Clarkstown ordinance within the purview of the Commerce
Clause.
HN2It
is well settled that actions are within the domain of the Commerce
Clause if they burden interstate commerce or impede its free flow.
[**1682] NLRB
v.
Jones & Laughlin Steel Corp., 301 U.S. 1, 31, 81 L. Ed. 893, 57
S. Ct. 615 (1937).
[***LEdHR3] LEdHN[3][3]The real question is
HN3whether
the flow control ordinance is valid despite its undoubted effect on interstate
commerce.
[*390] For this inquiry, our case
law yields two lines of analysis: first, whether the ordinance discriminates
against interstate commerce,
Philadelphia,
437 U.S. at 624; and second, whether the ordinance imposes a burden on
interstate commerce that is "clearly excessive in relation to the putative
local benefits,"
Pike
v.
Bruce Church, Inc., 397 U.S. 137, 142, 25 L. Ed. 2d 174, 90 S. Ct.
844 (1970). As we find that the ordinance discriminates against interstate
commerce, we need not resort to the
Pike test.
[***LEdHR4] LEdHN[4][4]
HN4The
central rationale for the rule against discrimination is to prohibit state or
municipal laws whose object is local economic protectionism, laws that would
excite those jealousies and retaliatory measures the Constitution was designed
to prevent. See The Federalist No. 22, pp. 143-145 (C. Rossiter ed. 1961) (A.
Hamilton); Madison, Vices of the Political System of the United States, in 2
Writings of James Madison 362-363 (G. Hunt ed. 1901).
HN5We
have interpreted the Commerce
Clause to invalidate local laws that impose commercial barriers or
discriminate against an article of commerce by reason of its origin or
destination out of State. See,
e. g., Philadelphia,
supra (striking down New Jersey statute that prohibited the import of
solid waste);
Hughes
v.
Oklahoma, 441 U.S. 322, 60 L. Ed. 2d 250, 99 S. Ct. 1727 (1979)
(striking down Oklahoma law that prohibited the export of natural minnows).
Clarkstown protests that its ordinance does not discriminate because it does
not differentiate solid waste on the basis of its geographic origin. All solid
waste, regardless of origin,
[***408] must be
processed at the designated transfer station before it leaves the town. Unlike
the statute in
Philadelphia,
says the town, the ordinance erects no barrier to the import or export of any
solid waste but requires only that the waste be channeled through the
designated facility.
Our initial discussion of the effects of the ordinance on interstate commerce
goes far toward refuting the town's contention that there is no discrimination
in its regulatory scheme. The town's own arguments go the rest of the way. As
the town itself points out, what makes garbage a profitable
[*391] business is not its own worth but the fact that
its possessor must pay to get rid of it. In other words, the article of
commerce is not so much the solid waste itself, but rather the service of
processing and disposing of it.
[***LEdHR1B] LEdHN[1B][1B]With respect to this
stream of commerce, the flow control ordinance discriminates, for it allows
only the favored operator to process waste that is within the limits of the
town. The ordinance is no less discriminatory because in-state or in-town
processors are also covered by the prohibition. In
Dean
Milk Co. v.
Madison, 340 U.S. 349, 95 L. Ed. 329, 71 S. Ct. 295
(1951), we struck down a city ordinance that required all milk sold in the
city to be pasteurized within five miles of the city lines. We found it
"immaterial that Wisconsin milk from outside the Madison area is subjected
to the same proscription as that moving in interstate commerce."
Id.,
at 354, n. 4. Accord,
Fort
Gratiot Sanitary Landfill, Inc. v.
Michigan Dept. of Natural Resources,
504 U.S. at 361 ("Our prior cases teach that a State (or one of its
political subdivisions) may not avoid the strictures of the Commerce
Clause by curtailing the movement of articles of commerce through
subdivisions of the State, rather than through the State itself").
[***LEdHR5] LEdHN[5][5]In this light, the flow
control ordinance is just one more instance of local processing requirements
that we long have held invalid. See
Minnesota
v.
Barber, 136 U.S. 313, 34 L. Ed. 455, 10 S. Ct. 862 (1890)
(striking down a Minnesota statute that required any meat sold within the
State, whether originating within or without the State, to be examined by an
inspector within the State);
Foster-Fountain
Packing Co. v.
Haydel, 278 U.S. 1, 73 L. Ed. 147, 49 S. Ct. 1 (1928)
(striking down
[**1683] a Louisiana statute
that forbade shrimp to be exported unless the heads and hulls had first been
removed within the State);
Johnson
v.
Haydel, 278 U.S. 16, 73 L. Ed. 155, 49 S. Ct. 6 (1928) (striking
down analogous Louisiana statute for oysters);
Toomer
v.
Witsell, 334 U.S. 385, 92 L. Ed. 1460, 68 S. Ct. 1156 (1948)
(striking down South Carolina statute that required shrimp fishermen to unload,
pack, and stamp their catch before shipping it to another State);
Pike
v.
Bruce Church, Inc., supra (striking down
[*392]
Arizona statute that required all Arizona-grown cantaloupes to be packaged
within the State prior to export);
South-Central
Timber Development, Inc. v.
Wunnicke, 467 U.S. 82, 81 L. Ed. 2d 71,
104 S. Ct. 2237 (1984) (striking down an Alaska regulation that required
all Alaska timber to be processed within the State prior to export). The
essential vice in laws of this sort is that they bar the import of the
processing service. Out-of-state meat inspectors, or shrimp hullers, or milk
pasteurizers, are deprived of access to local demand for their services. Put
another
[***409] way, the offending local laws
hoard a local resource -- be it meat, shrimp, or milk -- for the benefit of
local businesses that treat it.
[***LEdHR1C] LEdHN[1C][1C]The flow control
ordinance has the same design and effect. It hoards solid waste, and the demand
to get rid of it, for the benefit of the preferred processing facility. The
only conceivable distinction from the cases cited above is that the flow
control ordinance favors a single local proprietor. But this difference just
makes the protectionist effect of the ordinance more acute. In
Dean Milk,
the local processing requirement at least permitted pasteurizers within five
miles of the city to compete. An out-of-state pasteurizer who wanted access to
that market might have built a pasteurizing facility within the radius. The
flow control ordinance at issue here squelches competition in the
waste-processing service altogether, leaving no room for investment from
outside.
[***LEdHR6A] LEdHN[6A][6A]
HN6Discrimination
against interstate commerce in favor of local business or investment is
per
se invalid, save in a narrow class of cases in which the municipality can
demonstrate, under rigorous scrutiny, that it has no other means to advance a
legitimate local interest.
Maine
v.
Taylor, 477 U.S. 131, 91 L. Ed. 2d 110, 106 S. Ct. 2440 (1986)
(upholding Maine's ban on the import of
baitfish because Maine
had no other way to prevent the spread of parasites and the adulteration of its
native fish species). A number of
amici contend that the flow control
ordinance fits into this narrow class. They suggest that as landfill space
[*393] diminishes and environmental cleanup
costs escalate, measures like flow control become necessary to ensure the safe
handling and proper treatment of solid waste.
[***LEdHR1D] LEdHN[1D][1D]
[***LEdHR6B] LEdHN[6B][6B]The teaching of our
cases is that these arguments must be rejected absent the clearest showing that
the unobstructed flow of interstate commerce itself is unable to solve the
local problem. The Commerce
Clause presumes a national market free from local legislation that
discriminates in favor of local interests. Here Clarkstown has any number of
nondiscriminatory alternatives for addressing the health and environmental
problems alleged to justify the ordinance in question. The most obvious would
be uniform safety regulations enacted without the object to discriminate. These
regulations would ensure that competitors like Carbone do not underprice the
market by cutting corners on environmental safety.
[***LEdHR1E] LEdHN[1E][1E]
[***LEdHR7] LEdHN[7][7]Nor may Clarkstown
justify the flow control ordinance as a way to steer solid waste away from
out-of-town disposal sites that it might deem harmful to the environment. To do
so would extend the town's police power beyond its jurisdictional bounds.
HN7States
and localities may not attach restrictions to exports or imports in order to
control commerce in other States.
Baldwin
v.
G. A. F. Seelig, Inc., 294 U.S. 511, 79 L. Ed. 1032, 55 S. Ct. 497
(1935) (striking down New York law that
prohibited the sale of milk unless the price paid to the original milk producer
equaled the minimum required by New
York).
[**1684] [***LEdHR8]
LEdHN[8][8]The flow control
ordinance does serve a central purpose that a nonprotectionist regulation would
not: It ensures that the town-sponsored facility will be profitable, so that
the local contractor can build it and Clarkstown can buy it back at nominal
cost in five years. In other words, as the most candid of
amici and even
Clarkstown admit, the flow control ordinance is a financing measure.
HN8By
[***410] itself, of course, revenue generation
is not a local interest that can justify discrimination against interstate
commerce. Otherwise States could impose discriminatory taxes against solid
waste originating
[*394] outside the State.
See
Chemical
Waste Management, Inc. v.
Hunt, 504 U.S. 334, 119 L. Ed. 2d 121, 112
S. Ct. 2009 (1992) (striking down Alabama statute that imposed additional
fee on all hazardous waste generated outside the State and disposed of within
the State);
Oregon Waste Systems, Inc. v.
Department of Environmental
Quality of Ore., ante, p. 93 (striking down Oregon statute that imposed
additional fee on solid waste generated outside the State and disposed of
within the State).
[***LEdHR1F] LEdHN[1F][1F]Clarkstown maintains
that special financing is necessary to ensure the long-term survival of the
designated facility. If so, the town may subsidize the facility through general
taxes or municipal bonds.
New
Energy Co. of Ind. v.
Limbach, 486 U.S. 269, 278, 100 L. Ed. 2d 302,
108 S. Ct. 1803 (1988). But having elected to use the open market to earn
revenues for its project, the town may not employ discriminatory regulation to
give that project an advantage over rival businesses from out of State.
[***LEdHR2B] LEdHN[2B][2B]Though the Clarkstown
ordinance may not in explicit terms seek to regulate interstate commerce, it
does so nonetheless by its practical effect and design. In this respect the
ordinance is not far different from the state law this Court found invalid in
Buck
v.
Kuykendall, 267 U.S. 307, 69 L. Ed. 623, 45 S. Ct. 324 (1925).That
statute prohibited common carriers from using state highways over certain
routes without a certificate of public convenience. Writing for the Court,
Justice Brandeis said of the law: "Its primary purpose is not regulation
with a view to safety or to conservation of the highways, but the prohibition
of competition. It determines not the manner of use, but the persons by whom
the highways may be used. It prohibits such use to some persons while
permitting it to others for the same purpose and in the same manner."
Id.,
at 315-316.
[***LEdHR6C] LEdHN[6C][6C]State and local
governments may not use their regulatory power to favor local enterprise by
prohibiting patronage of out-of-state competitors or their facilities. We
reverse the
[*395] judgment and remand the
case for proceedings not inconsistent with this decision.
It is so ordered.
APPENDIX TO OPINION OF THE COURT
TOWN OF CLARKSTOWN
Local Law No. 9 of the year 1990
A local law entitled, "SOLID WASTE TRANSPORTATION AND DISPOSAL."
Be it enacted by the TOWN BOARD of the Town of CLARKSTOWN as follows:
Section
1. Definitions
Unless otherwise stated expressly, the following words and expressions, where
used in this chapter, shall have the meanings ascribed to them by this section:
ACCEPTABLE WASTE -- All residential, commercial and industrial solid waste as
defined in New York State Law, and Regulations, including Construction and
Demolition Debris. Acceptable Waste shall not
[***411]
include Hazardous Waste, Pathological Waste or sludge.
CONSTRUCTION AND DEMOLITION DEBRIS -- Uncontaminated solid waste resulting from
the construction, remodeling, repair and demolition of structures and roads;
and uncontaminated solid waste consisting of vegetation resulting from land
clearing and grubbing, utility line maintenance and seasonal and storm related
cleanup. Such waste includes, but is not limited
[**1685]
to bricks, concrete and other masonry materials, soil, rock, wood, wall
coverings, plaster, drywall, plumbing fixtures, non-asbestos insulation,
roofing shingles, asphaltic pavement, electrical wiring and components
containing no hazardous liquids, metals, brush grass clippings and leaves that
are incidental to any of the above.
HAZARDOUS WASTE -- All solid waste designated as such under the Environmental
Conservation Law, the Comprehensive Environmental Response, Compensation and
Liability
[*396] Act of 1980, the Resource
Conservation and Recovery Act of 1976 or any other applicable law.
PATHOLOGICAL WASTE -- Waste material which may be considered infectious or
biohazardous, originating from hospitals, public or private medical clinics,
departments or research laboratories, pharmaceutical industries, blood banks,
forensic medical departments, mortuaries, veterinary facilities and other
similar facilities and includes equipment, instruments, utensils, fomites,
laboratory waste (including pathological specimens and fomites attendant
thereto), surgical facilities, equipment, bedding and utensils (including
pathological specimens and disposal fomites attendant thereto), sharps
(hypodermic needles, syringes, etc.), dialysis unit waste, animal carcasses,
offal and body parts, biological materials, (vaccines, medicines, etc.) and
other similar materials, but does not include any such waste material which is
determined by evidence satisfactory to the Town to have been rendered
non-infectious and non-biohazardous.
PERSONS -- Any individual, partnership, corporation, association, trust,
business trust, joint venturer, governmental body or other entity, howsoever
constituted.
UNACCEPTABLE WASTE -- Hazardous Waste, Pathological Waste and sludge.
SLUDGE -- Solid, semi-solid or liquid waste generated from a sewage treatment
plant, wastewater treatment plant, water supply treatment plant, or air
pollution control facility.
TOWN -- When used herein, refers to the Town of Clarkstown.
Section
2. General Provisions
A. Intent; Purpose.
I. The intent and purpose of this chapter is to provide for the transportation
and disposition of all solid waste within or generated within the Town of
Clarkstown so that all acceptable solid waste generated within the Town is
delivered to the Town of Clarkstown solid waste facility situate at Route 303,
West Nyack, New York and such other sites,
[*397]
situate in the Town, as may be approved by the Town for recycling, processing
or for other disposition or handling of acceptable solid waste.
II. The powers and duties enumerated in this law constitute proper town
purposes intended to benefit the health, welfare and safety of Town
[***412] residents. Additionally, it is hereby found
that, in the exercise of control over the collection, transportation and
disposal of solid waste, the Town is exercising essential and proper
governmental functions.
B. Supervision and Regulation.
The Town Board hereby designates the Director of the Department of
Environmental Control to be responsible for the supervision and regulation of
the transportation and disposition of all acceptable waste generated within the
Town of Clarkstown.
The Director of the Department of Environmental Control shall be responsible
for and shall supervise the Town's activities in connection with any waste
collection and disposal agreements entered into between the Town and third
parties and shall report to the Town Board with respect thereto.
C. Power to Adopt Rules and Regulations.
The Town Board may, after a public hearing, adopt such rules and regulations as
may be necessary to effectuate the purposes of this chapter. At least seven (7)
business
[**1686] days' prior notice of such
public hearing shall be published in the official newspaper of the Town. A copy
of all rules and regulations promulgated hereunder and any amendments thereto
shall be filed in the office of the Town Clerk upon adoption and shall be
effective as provided therein.
Section 3. Collection and Disposal of Acceptable Waste.
A. The removal, transportation and/or disposal of acceptable waste within or
generated within the Town of Clarkstown shall be exclusively disposed of,
controlled and regulated by the Town under this chapter and Chapter 50 and
Chapter 82 of the Clarkstown Town Code, together with such
[*398] rules and regulations as the Town has or may
from time to time adopt.
B. All acceptable waste, as defined herein, except for construction and
demolition debris, shall be removed, transported and/or disposed of only by
carters licensed pursuant to the requirements of Chapter 50 of the Clarkstown
Town Code and any amendments thereto. All other persons are hereby prohibited
from removing, transporting or disposing of acceptable waste, except for
construction and demolition debris generated within the Town of Clarkstown, and except as
may be provided for herein or in the rules and regulations adopted pursuant to
this chapter and/or Chapter 50 of the Clarkstown Town Code.
C. All acceptable waste generated within the territorial limits of the Town of
Clarkstown is to be transported and delivered to the Town of Clarkstown solid
waste facility located at Route 303, West Nyack, New York or to such other
disposal or recycling facilities operated by the Town of Clarkstown,
* or to
recycling centers established by special permit pursuant to Chapter 106 of the
Clarkstown Town Code, except for recyclable materials which are separated from
solid waste at the point of origin or generation of such solid waste, which
separated recyclable materials may be transported and delivered to facilities
within the Town as aforesaid, or to sites outside the town. As to acceptable
waste brought to said recycling facilities, the unrecycled
[***413] residue shall be disposed of at a solid waste
facility operated by the Town of Clarkstown.
FOOTNOTES
*
In a separate zoning ordinance, the Town declared that it shall have only one
designated transfer station. Town of Clarkstown
Zoning Code § 106-3.
D. It shall be unlawful to dispose of any acceptable waste generated or
collected within the Town at any location other than the facilities or sites
set forth in Paragraph "C" above.
[*399] Section 4. Disposal of Unacceptable
Waste.
A. No unacceptable waste shall be delivered to the Town of Clarkstown solid
waste facility situate at Route 303, West Nyack, New York or other solid waste
facility operated by the Town of Clarkstown or recycling centers established by
special permit pursuant to Chapter 106 of the Clarkstown Town Code by any
person, including, without limitation, any licensed carter or any municipality.
Failure to comply with the provisions of this section shall be subject to the
provisions with respect to such penalties and enforcement, including the
suspension or revocation of licenses and the imposition of fines, in accordance
with the provisions of this chapter and/or Chapter 50 of the Clarkstown Town
Code and any amendments thereto. The Town Board of Clarkstown may, by
resolution, provide for the disposal of sewer sludge, generated by a municipal
sewer system or the Rockland County sewer district, at a disposal facility situate
within the Town of Clarkstown.
B. It shall be unlawful, within the Town, to dispose of or attempt to dispose
of unacceptable waste of any kind generated within the territorial limits of
the Town of Clarkstown,
except for sewer sludge as provided for in Section "A" above.
[**1687] Section 5. Acceptable and
Unacceptable Waste Generated Outside the Town of Clarkstown.
A. It shall be unlawful, within the Town, to dispose of or attempt to dispose
of acceptable or unacceptable waste of any kind generated or collected outside
the territorial limits of the Town of Clarkstown, except for acceptable waste
disposed of at a Town operated facility, pursuant to agreement with the Town of
Clarkstown and recyclables, as defined in Chapter 82 of the Clarkstown Town
Code, brought to a recycling center established by special permit pursuant to
Chapter 106 of the Clarkstown Town Code.
B. It shall be unlawful for any person to import acceptable waste or
unacceptable waste from outside the Town of
[*400]
Clarkstown and dump same on any property located within the Town of Clarkstown
and to proceed to sift, sort, mulch or otherwise mix the said material with
dirt, water, garbage, rubbish or other substance, having the effect of
concealing the contents or origin of said mixture. This provision shall not
apply to composting of acceptable waste carried out by the Town of Clarkstown.
Section 6. Fees for Disposal of Acceptable Waste at Town Operated Facilities.
There shall be separate fees established for disposal of acceptable waste at
Town operated disposal facilities. The Town Board, by resolution adopted from
time to time, shall fix the various fees to be collected at said facilities.
The initial fees to be collected are those adopted by the Town Board on
December 11, 1990 by Resolution Number 1097.
Section 7. Penalties for Offenses.
[***414] Notwithstanding any other provision
of this chapter, the violation of any provision of this chapter shall be
punishable by a fine of not more than one thousand dollars ($ 1,000.00) or by
imprisonment for a period not exceeding fifteen (15) days for each offense, or
by both fine and imprisonment, and each day that such violation shall be
permitted to continue shall constitute a separate offense hereunder.
Section 8. Repealer; Severability.
Ordinances and local laws or parts of ordinances or local laws heretofore
enacted and inconsistent with any of the terms or provisions of this chapter
are hereby repealed. In the event that any portion of this chapter shall be
declared invalid by a court of competent jurisdiction, such invalidity shall
not be deemed to affect the remaining portions hereof.
Section 9. When Effective.
This chapter shall take effect immediately upon filing in the office of the
Secretary of State.
CONCUR BY: O'CONNOR
CONCUR
[*401] JUSTICE O'CONNOR, concurring in the
judgment.
The town of Clarkstown's
flow control ordinance requires all "acceptable waste" generated or
collected in the town to be disposed of only at the town's solid waste
facility. Town of Clarkstown,
Local Law 9, §§ 3.C-D (1990) (Local Law 9). The Court holds today that this
ordinance violates the Commerce
Clause because it discriminates against interstate commerce.
Ante,
at 390. I agree with the majority's ultimate conclusion that the ordinance
violates the dormant Commerce
Clause. In my view, however, the town's ordinance is unconstitutional not
because of facial or effective discrimination against interstate commerce, but
rather because it imposes an excessive burden on interstate commerce. I also
write separately to address the contention that flow control ordinances of this
sort have been expressly authorized by Congress, and are thus outside the
purview of the dormant Commerce
Clause.
I
The scope of the dormant Commerce
Clause is a judicial creation. On its face, the Clause provides only that
"the Congress shall have Power . . . To regulate Commerce . . . among the
several States . . . ." U.S.
Const., Art. I, § 8, cl. 3. This Court long ago
[**1688]
concluded, however, that the Clause not only empowers Congress to regulate
interstate commerce, but also imposes limitations on the States in the absence
of congressional action:
"This principle that our
economic unit is the Nation, which alone has the gamut of powers necessary to
control of the economy, including the vital power of erecting customs barriers
against foreign competition, has as its corollary that the states are not
separable economic units. . . . What is ultimate is the principle that one
state in its dealings with another may not place itself in a position of
economic isolation."
H.
P. Hood & Sons, [*402] Inc. v.
Du Mond, 336 U.S.
525, 537-538, 93 L. Ed. 865, 69 S. Ct. 657 (1949)
(internal quotation marks and citations omitted).
Our decisions therefore hold
that the dormant Commerce
Clause forbids
[***415] States and their
subdivisions to regulate interstate commerce.
We have generally distinguished between two types of impermissible regulations.
A facially nondiscriminatory regulation supported by a legitimate state
interest which incidentally burdens interstate commerce is constitutional
unless the burden on interstate trade is clearly excessive in relation to the
local benefits. See
Brown-Forman
Distillers Corp. v.
New York State Liquor Authority, 476 U.S. 573,
579, 90 L. Ed. 2d 552, 106 S. Ct. 2080 (1986);
Pike
v.
Bruce Church, Inc., 397 U.S. 137, 142, 25 L. Ed. 2d 174, 90 S. Ct.
844 (1970). Where, however, a regulation "affirmatively" or
"clearly" discriminates against interstate commerce on its face or in
practical effect, it violates the Constitution unless the discrimination is
demonstrably justified by a valid factor unrelated to protectionism. See
Wyoming
v.
Oklahoma, 502 U.S. 437, 454, 117 L. Ed. 2d 1, 112 S. Ct. 789 (1992);
Maine
v.
Taylor, 477 U.S. 131, 138, 91 L. Ed. 2d 110, 106 S. Ct. 2440 (1986).
Of course, there is no clear line separating these categories. "In either
situation the critical consideration is the overall effect of the statute on
both local and interstate activity."
Brown-Forman
Distillers, supra, at 579.
Local Law 9 prohibits anyone except the town-authorized transfer station
operator from processing discarded waste and shipping it out of town. In
effect, the town has given a waste processing monopoly to the transfer station.
The majority concludes that this processing monopoly facially discriminates
against interstate commerce.
Ante, at 391-392. In support of this
conclusion, the majority cites previous decisions of this Court striking down
regulatory enactments requiring that a particular economic activity be
performed within the jurisdiction. See,
e. g., Dean
Milk Co. v.
Madison, 340 U.S. 349, 95 L. Ed. 329, 71 S. Ct. 295
(1951) (unconstitutional for city to require milk to be pasteurized within
five miles of the city);
Minnesota
v.
Barber, 136 U.S. 313, 34 L. Ed. 455, 10 S. Ct. 862 (1890)
(unconstitutional for State
[*403] to require
meat sold within the State to be examined by state inspector);
Foster-Fountain
Packing Co. v.
Haydel, 278 U.S. 1, 73 L. Ed. 147, 49 S. Ct. 1 (1928)
(unconstitutional for State to require that shrimp heads and hulls must be
removed before shrimp can be removed from the State);
South-Central
Timber Development, Inc. v.
Wunnicke, 467 U.S. 82, 81 L. Ed. 2d 71,
104 S. Ct. 2237 (1984) (unconstitutional for State to require all timber to
be processed within the State prior to export).
Local Law 9, however, lacks an important feature common to the regulations at
issue in these cases -- namely, discrimination on the basis of geographic
origin. In each of the cited cases, the challenged enactment gave a competitive
advantage to local business
as a group vis-a-vis their out-of-state or
nonlocal competitors
as a group. In effect, the regulating jurisdiction
-- be it a State
(Pike), a county (
Fort
Gratiot Sanitary Landfill, Inc. v.
Michigan Dept. of Natural Resources,
504 U.S. 353, 119 L. Ed. 2d 139, 112 S. Ct. 2019 (1992)), or a city
(Dean
Milk) -- drew a line around itself and treated those inside the line more
favorably than those outside the line. Thus, in
Pike, the Court held
that an Arizona law requiring that Arizona cantaloupes be
[**1689]
packaged in Arizona before being shipped out
of state facially discriminated against interstate commerce: The
[***416] benefits of the discriminatory scheme
benefited the Arizona packaging industry, at
the expense of its competition in California.
Similarly, in
Dean Milk, on which the majority heavily relies, the city
of Madison drew
a line around its perimeter and required that all milk sold in the city be
pasteurized only by dairies located inside the line. This type of geographic
distinction, which confers an economic advantage on local interests in general,
is common to all the local processing cases cited by the majority. And the
Court has, I believe, correctly concluded that these arrangements are
protectionist either in purpose or practical effect, and thus amount to
virtually
per se discrimination.
In my view, the majority fails to come to terms with a significant distinction
between the laws in the local processing
[*404]
cases discussed above and Local Law 9. Unlike the regulations we have
previously struck down, Local Law 9 does not give more favorable treatment to
local interests as a group as compared to out-of-state or out-of-town economic
interests. Rather, the garbage sorting monopoly is achieved at the expense of
all competitors, be they local or nonlocal. That the ordinance does not
discriminate on the basis of geographic origin is vividly illustrated by the
identity of the plaintiffs in this very action: Petitioners are
local
recyclers, physically located
in Clarkstown, that desire to process
waste themselves, and thus bypass the town's designated transfer facility.
Because in-town processors -- like petitioners -- and out-of-town processors
are treated equally, I cannot agree that Local Law 9 "discriminates"
against interstate commerce. Rather, Local Law 9 "discriminates"
evenhandedly against all potential participants in the waste processing
business, while benefiting only the chosen operator of the transfer facility.
I believe this distinction has more doctrinal significance than the majority
acknowledges. In considering state health and safety regulations such as Local
Law 9, we have consistently recognized that the fact that interests within the
regulating jurisdiction are equally affected by the challenged enactment
counsels against a finding of discrimination. And for good reason. The
existence of substantial in-state interests harmed by a regulation is "a
powerful safeguard" against legislative discrimination.
Minnesota
v.
Clover Leaf Creamery Co., 449 U.S. 456, 473, n. 17, 66 L. Ed. 2d 659,
101 S. Ct. 715 (1981). The Court generally defers to health and safety
regulations because "their burden usually falls on local economic
interests as well as other States' economic interests, thus insuring that a
State's own political processes will serve as a check against unduly burdensome
regulations."
Raymond
Motor Transp., Inc. v.
Rice, 434 U.S. 429, 444, n. 18, 54 L. Ed. 2d
664, 98 S. Ct. 787 (1978). See also
Kassel
v.
Consolidated Freightways Corp. of Del., 450 U.S. 662, 675, 67 L. Ed.
2d 580, 101 S. Ct. 1309 (1981) (same). Thus, while there is no bright
[*405] line separating those enactments which
are virtually
per se invalid and those which are not, the fact that
in-town competitors of the transfer facility are equally burdened by Local Law
9 leads me to conclude that Local Law 9 does not discriminate against
interstate commerce.
II
That the ordinance does not discriminate
[***417]
against interstate commerce does not, however, end the Commerce
Clause inquiry. Even a nondiscriminatory regulation may nonetheless impose
an excessive burden on interstate trade when considered in relation to the
local benefits conferred. See
Brown-Forman
Distillers, 476 U.S. at 579. Indeed, we have long recognized that
"a burden imposed by a State upon interstate commerce is not to be
sustained simply because the statute imposing it applies alike to . . . the
people of the State enacting such statute."
Brimmer
v.
Rebman, 138 U.S. 78, 83, 34 L. Ed. 862, 11 S. Ct. 213 (1891)
(internal quotation marks and citation omitted). Moreover, "the extent of
the burden that will be tolerated will of course depend on the nature of the
local interest involved, and on
[**1690]
whether it could be promoted as well with a lesser impact on interstate
activities."
Pike,
397 U.S. at 142. Judged against these standards, Local Law 9 fails.
The local interest in proper disposal of waste is obviously significant. But
this interest could be achieved by simply requiring that all waste disposed of
in the town be properly processed
somewhere. For example, the town could
ensure proper processing by setting specific standards with which all town
processors must comply.
In fact, however, the town's purpose is narrower than merely ensuring proper
disposal. Local Law 9 is intended to ensure the financial viability of the
transfer facility. I agree with the majority that this purpose can be achieved
by other means that would have a less dramatic impact on the flow of goods. For
example, the town could finance the
[*406]
project by imposing taxes, by issuing municipal bonds, or even by lowering its
price for processing to a level competitive with other waste processing
facilities. But by requiring that all waste be processed at the town's
facility, the ordinance "squelches competition in the waste-processing
service altogether, leaving no room for investment from outside."
Ante,
at 392.
In addition, "'the practical effect of [Local Law 9] must be evaluated not
only by considering the consequences of the statute itself, but also by
considering how the challenged statute may interact with the legitimate
regulatory regimes of the other States and what effect would arise if not one,
but many or every, [jurisdiction] adopted similar legislation.'"
Wyoming
v.
Oklahoma, 502 U.S. at 453-454 (quoting
Healy
v.
Beer Institute, 491 U.S. 324, 336, 105 L. Ed. 2d 275, 109 S. Ct. 2491
(1989)). This is not a hypothetical inquiry. Over 20 States have enacted
statutes authorizing local governments to adopt flow control laws.
* If the
localities in these States impose the type of restriction on the
[***418] movement of waste that Clarkstown has adopted,
the free movement of solid waste in the stream of commerce will be severely
impaired. Indeed, pervasive flow control would result in the type of
balkanization the Clause is primarily intended to prevent. See
H.
P. Hood & Sons, 336 U.S. at 537-538.
FOOTNOTES
*
Colo. Rev. Stat. § 30-20-107
(Supp. 1993); Conn. Gen. Stat. § 22a-220a
(1993); Del.
Code Ann., Tit. 7, § 6406(31) (1991); Fla. Stat. § 403.713
(1991); Haw. Rev. Stat. § 340A-3(a)
(1985); Ind. Code §§ 36-9-31-3
and -4 (1993); Iowa Code § 28G.4
(1987); La. Rev. Stat. Ann. § 30:2307(9)
(West 1989); Me. Rev. Stat. Ann., Tit. 38, §
1304-B(2) (1964); Minn. Stat. § 115A.80
(1992); Miss. Code Ann. § 17-17-319
(Supp. 1993); Mo. Rev. Stat. § 260.202
(Supp. 1993); N. J. Stat. Ann. §§ 13.1E-22, 48:13A-5 (West
1991 and Supp. 1993); N. C. Gen. Stat. § 130A-294
(1992); N. D. Cent. Code §§ 23-29-06(6)
and
(8) (Supp.
1993); Ore. Rev. Stat. §§ 268.317(3) and (4) (1991); Pa. Stat. Ann., Tit. 53, § 4000.303(e) (Purdon
Supp. 1993); R. I. Gen. Laws § 23-19-10(40)
(1956); Tenn. Code Ann. § 68-211-814
(Supp. 1993); Vt. Stat. Ann., Tit. 24, § 2203b
(1992); Va. Code Ann. § 15.1-28.01 (Supp. 1993).
[*407] Given that many jurisdictions are
contemplating or enacting flow control, the potential for conflicts is high.
For example, in the State of New Jersey, just south of Clarkstown, local waste
may be removed from the State for the sorting of recyclables "as long as
the residual solid waste is returned to New Jersey." Brief for New Jersey as
Amicus
Curiae 5. Under Local Law 9, however, if petitioners bring waste from New Jersey for recycling at their Clarkstown operation,
the residual waste may not be returned to New Jersey, but must be transported to
Clarkstown's transfer facility. As a consequence, operations like petitioners'
cannot comply with the requirements of both jurisdictions. Nondiscriminatory
state or local laws which actually conflict with the enactments of other States
are constitutionally infirm if they burden interstate commerce. See
Bibb
v.
Navajo Freight Lines, Inc., 359 U.S. 520, 526-530, 3 L. Ed. 2d 1003,
79 S. Ct. 962 (1959) (unconstitutional for Illinois to require truck
mudguards when that requirement conflicts with the requirements of other
States);
Southern
Pacific Co. v.
Arizona ex rel. Sullivan, 325 U.S. 761, 773-774, 89
L. Ed. 1915, 65 S. Ct. 1515 (1945) (same). The increasing number of
[**1691] flow control regimes virtually ensures some
inconsistency between jurisdictions, with the effect of eliminating the
movement of waste between jurisdictions. I therefore conclude that the burden
Local Law 9 imposes on interstate commerce is excessive in relation to
Clarkstown's interest in ensuring a fixed supply of waste to supply its
project.
III
Although this Court can -- and often does -- enforce the dormant aspect of the Commerce
Clause, the Clause is primarily a grant of congressional authority to
regulate commerce among the States.
Amicus National Association of Bond
Lawyers (NABL) argues that the flow control ordinance in this case has been
authorized by Congress. Given the residual nature of our authority under the
Clause, and
[*408] because the argument that
Congress has in fact authorized flow control is substantial, I think it
appropriate to address it directly.
Congress must be "unmistakably clear" before we will conclude that it
intended to permit state regulation which would otherwise violate the dormant Commerce
Clause.
South-Central
Timber, 467 U.S. at 91 (plurality opinion). See also
Sporhase
v.
Nebraska ex rel. Douglas, 458 U.S. 941, 960, 73 L. Ed. 2d 1254, 102
S. Ct. 3456 (1982) (finding consent only where "Congress' intent and
policy to sustain state legislation from attack under the Commerce
Clause was expressly stated") (citations and internal quotation marks
omitted). The State or locality has the burden of demonstrating this intent.
Wyoming
v.
Oklahoma, 502 U.S. at 458.
Amicus NABL argues that Subchapter IV of the Resource Conservation and
Recovery Act of 1976 (RCRA), 90 Stat. 2813, as amended, 42
U.S.C. § 6941
et seq., and its amendments,
[***419]
remove the constitutional constraints on local implementation of flow control.
RCRA is a sweeping statute intended to regulate solid waste from cradle to
grave. In addition to providing specific federal standards for the management
of solid waste, RCRA Subchapter IV governs "State or Regional Solid Waste
Plans." Among the objectives of the subchapter is to "assist in
developing and encouraging methods for the disposal of solid waste which are
environmentally sound"; this is to be accomplished by federal
"assistance to States or regional authorities for comprehensive planning
pursuant to Federal guidelines." §
6941.
Under RCRA, States are to submit solid waste management plans that
"prohibit the establishment of new open dumps within the State," and
ensure that solid waste will be "utilized for resource recovery or . . .
disposed of in sanitary landfills . . . or otherwise disposed of in an
environmentally sound manner." § 6943(a)(2). The plans must also ensure
that state and local governments not be "prohibited under State or local
law from negotiating and entering into long-term
[*409]
contracts for the supply of solid waste to resource recovery facilities [or]
from entering into long-term contracts for the operation of such
facilities." § 6943(a)(5).
Amicus also points to a statement in a House Report addressing §
6943(a)(5), a statement evincing some concern with flow control:
"This prohibition [on
state or local laws prohibiting long-term contracts] is not to be construed to
affect state planning
which may require all discarded materials to be
transported to a particular location. . . ." H. R. Rep. No. 94-1491,
p. 34 (1976) (emphasis added).
Finally,
in the Solid Waste Disposal Act Amendments of 1980, Congress authorized the
Environmental Protection Agency (EPA) to "provide technical assistance to
States [and local governments] to assist in the removal or modification of
legal, institutional, and economic impediments which have the effect of
impeding the development of systems and facilities [for resource
recovery]." § 6948(d)(3). Among the obstacles to effective resource
recovery are "impediments to institutional arrangements necessary to
undertake projects . . .
including the creation [**1692]
of special districts, authorities, or corporations where necessary having
the power to secure the supply of waste of a project." § 6948(d)(3)(C)
(emphasis added).
I agree with
amicus NABL that these references indicate that Congress
expected local governments to implement some form of flow control. Nonetheless,
they neither individually nor cumulatively rise to the level of the
"explicit" authorization required by our dormant Commerce
Clause decisions. First, the primary focus of the references is on legal
impediments imposed as a result of state -- not federal -- law. In addition,
the reference to local authority to "secure the supply of waste" is
contained in § 6948(d)(3)(C), which is a delegation not to the States but to
EPA
of authority to assist
[*410] local government
in solving waste supply problems. EPA has stated in its implementing
regulations that the "State plan should provide for substate cooperation
and policies for free and unrestricted movement of solid and hazardous waste
across State and local boundaries." 40
CFR § 256.42(h) (1993). And while the House Report seems to contemplate
that municipalities may require waste to be brought to a particular location,
this stronger language is
[***420] not
reflected in the text of the statute. Cf.
United
States v.
Nordic Village, Inc., 503 U.S. 30, 37, 117 L. Ed. 2d 181,
112 S. Ct. 1011 (1992) (for waiver of sovereign immunity, "if clarity
does not exist [in the text], it cannot be supplied by a committee
report");
Dellmuth
v.
Muth, 491 U.S. 223, 230, 105 L. Ed. 2d 181, 109 S. Ct. 2397 (1989)
(same). In short, these isolated references do not satisfy our requirement of
an explicit statutory authorization.
It is within Congress' power to authorize local imposition of flow control.
Should Congress revisit this area, and enact legislation providing a clear
indication that it intends States and localities to implement flow control, we
will, of course, defer to that legislative judgment. Until then, however, Local
Law 9 cannot survive constitutional scrutiny. Accordingly, I concur in the
judgment of the Court.
DISSENT BY: SOUTER
DISSENT
JUSTICE SOUTER, with whom THE CHIEF JUSTICE and JUSTICE BLACKMUN join,
dissenting.
The majority may invoke "well-settled principles of our Commerce
Clause jurisprudence,"
ante, at 386, but it does so to strike
down an ordinance unlike anything this Court has ever invalidated. Previous cases
have held that the "negative" or "dormant" aspect of the Commerce
Clause renders state or local legislation unconstitutional when it discriminates
against out-of-state or out-of-town businesses such as those that pasteurize
milk, hull shrimp, or mill lumber, and the majority relies on these cases
because of what they have in common with this one: out-of-state processors are
excluded
[*411] from the local market (here,
from the market for trash processing services). What the majority ignores,
however, are the differences between our local processing cases and this one:
the exclusion worked by Clarkstown's Local Law 9 bestows no benefit on a class
of local private actors, but instead directly aids the government in satisfying
a traditional governmental responsibility. The law does not differentiate
between all local and all out-of-town providers of a service, but instead
between the one entity responsible for ensuring that the job gets done and all
other enterprises, regardless of their location. The ordinance thus falls
outside that class of tariff or protectionist measures that the Commerce
Clause has traditionally been thought to bar States from enacting against
each other, and when the majority subsumes the ordinance within the class of
laws this Court has struck down as facially discriminatory (and so avails
itself of our "virtually
per se rule" against such statutes,
see
Philadelphia
v.
New Jersey, 437 U.S. 617, 624, 57 L. Ed. 2d 475, 98 S. Ct. 2531
(1978)), the majority is in fact greatly extending the Clause's dormant
reach.
There are, however, good and sufficient reasons against expanding the Commerce
Clause's inherent capacity to trump exercises of state authority such as
the ordinance at issue here. There is no indication in the record that any out-of-state
trash processor
[**1693] has been harmed, or
that the interstate movement or disposition of trash will be affected one whit.
To the degree Local Law 9 affects the market for trash processing services, it
does so only by subjecting Clarkstown residents and businesses to burdens far
different from the burdens of local favoritism that dormant Commerce
Clause jurisprudence seeks to root out. The town has found a way
[***421] to finance a public improvement, not by
transferring its cost to out-of-state economic interests, but by spreading it
among the local generators of trash, an equitable result with tendencies that
should not disturb the Commerce
Clause and should not be disturbed by us.
[*412] I
Prior to the 1970's, getting rid of the trash in Clarkstown was just a matter
of taking it to the local dump. But over the course of that decade, state
regulators cited the town for dumping in violation of environmental laws, and
in August 1989 the town entered into a consent decree with the New York State
Department of Environmental Conservation, promising to close the landfill,
clean up the environmental damage, and make new arrangements to dispose of the
town's solid waste. Clarkstown agreed to build a "transfer station"
where the town's trash would be brought for sorting out recyclable material and
baling the nonrecyclable residue for loading into long-haul trucks bound for
out-of-state disposal sites.
Instead of building the transfer station itself, Clarkstown contracted with a
private company to build the station and run it for five years, after which the
town could buy it for $ 1. The town based the size of the facility on its best
estimate of the amount of trash local residents would generate and undertook to
deliver that amount to the transfer station each year, or to pay a substantial
penalty to compensate for any shortfall. This "put or pay" contract,
together with the right to charge an $ 81 "tipping" fee for each ton
of waste collected at the transfer station, was meant to assure the company its
return on investment.
Local Law 9, the ordinance at issue here, is an integral part of this financing
scheme. It prohibits individual trash generators within the town from evading
payment of the $ 81 tipping fee by requiring that all residential, commercial,
and industrial waste generated or collected within the town be delivered to the
transfer station. While Clarkstown residents may dump their waste at another
locally licensed recycling center, once such a private recycler culls out the
recyclable materials, it must dispose of any residue the same way other
Clarkstown residents do, by taking it to the town's
[*413]
transfer station. Local Law 9, §§
3.C,
3.D
(1990).
1 If
out-of-towners wish to dispose of their waste in Clarkstown or recycle it
there, they enter the town subject to the same restrictions as Clarkstown
residents, in being required to use only the town-operated transfer station or
a licensed recycling center. § 5.A.
FOOTNOTES
1
The ordinance has exceptions not at issue here for hazardous waste,
pathological waste, and sludge, and for source-separated recyclables, which can
be disposed of within or outside the town. Local Law 9, §§ 1, 3.C (1990).
Petitioner C & A Carbone, Inc., operated a recycling center in Clarkstown,
according to a state permit authorizing it to collect waste, separate out the
recyclables for sale, and dispose of the rest. In violation of Local Law 9,
Carbone failed to bring this nonrecyclable residue to the town transfer
station, but took it directly to out-of-state incinerators and landfills,
including some of the very same ones to which the Clarkstown transfer station
sends its trash. Apparently, Carbone bypassed the Clarkstown facility on
account of the $ 81 tipping fee, saving Carbone money,
[***422]
but costing the town thousands in lost revenue daily. In this resulting legal
action, Carbone's complaint is one that any Clarkstown trash generator could
have made: the town has created a monopoly on trash processing services, and
residents are no longer free to provide these services for themselves or to
contract for them with others at a mutually agreeable price.
[**1694] II
We are not called upon to judge the ultimate wisdom of creating this local
monopoly, but we are asked to say whether Clarkstown's monopoly violates the Commerce
Clause, as long read by this Court to limit the power of state and local
governments to discriminate against interstate commerce:
[*414]
"[The] 'negative' aspect of the Commerce
Clause prohibits economic protectionism -- that is, regulatory measures
designed to benefit in-state economic interests by burdening out-of-state
competitors. Thus, state statutes that clearly discriminate against interstate
commerce are routinely struck down, unless the discrimination is demonstrably
justified by a valid factor unrelated to economic protectionism."
New
Energy Co. of Ind. v.
Limbach, 486 U.S. 269, 273-274, 100 L. Ed. 2d
302, 108 S. Ct. 1803 (1988) (citations omitted).
This
limitation on the state and local power has been seen implicit in the Commerce
Clause because, as the majority recognizes, the Framers sought to dampen
regional jealousies in general and, in particular, to eliminate retaliatory
tariffs, which had poisoned commercial relations under the Articles of
Confederation.
Ante, at 390. Laws that hoard for local businesses the
right to serve local markets or develop local resources work to isolate States
from each other and to incite retaliation, since no State would stand by while
another advanced the economic interests of its own business classes at the
expense of its neighbors.
A
The majority argues that resolution of the issue before us is controlled by a
line of cases in which we have struck down state or local laws that discriminate
against out-of-state or out-of-town providers of processing services. See
ante,
at 391-392. With perhaps one exception,
2 the laws
invalidated
[*415] in those cases were
patently discriminatory, differentiating by their very terms between in-state
and out-of-state (or local and nonlocal) processors. One ordinance, for
example, forbad selling pasteurized milk "'unless the same shall have been
pasteurized and bottled . . . within a radius of five miles from the central
portion of the City of Madison . . . .'"
3 Dean
Milk Co. v.
Madison, 340 U.S. 349, 350, n. 1, 95 L. Ed. 329, 71 S.
Ct. 295 (1951) (quoting General Ordinances
[***423]
of the City of Madison § 7.21 (1949)). The other laws expressly discriminated
against commerce crossing state lines, placing these local processing cases
squarely within the larger class of cases in which this Court has invalidated
facially discriminatory legislation.
4
FOOTNOTES
2
The arguable exception is
Pike v.
Bruce Church, Inc., 397 U.S. 137, 25 L. Ed. 2d 174,
90 S. Ct. 844 (1970), where the Court invalidated an
administrative order issued pursuant to a facially neutral statute. While the
order discriminated on its face, prohibiting the interstate shipment of
respondent's cantaloupes unless they were first packaged locally, the statute it
sought to enforce merely required that Arizona-grown cantaloupes advertise
their State of origin on each package. In Part III, I discuss the line of cases
in which we have struck down statutes that, although lacking explicit
geographical sorting mechanisms, are discriminatory in practical effect.
3
The area encompassed by this provision included all of Madison except the runways of the municipal
airport, plus a small amount of unincorporated land. See The Madison
and Wisconsin Foundation, Map of the City of Madison (1951).
4
See,
e. g., Chemical Waste Management, Inc. v.
Hunt, 504 U.S. 334, 119 L. Ed. 2d
121, 112 S. Ct. 2009 (1992) (Alabama statute taxing hazardous
waste not originating in State);
Wyoming v.
Oklahoma, 502 U.S. 437, 117 L. Ed. 2d 1, 112 S. Ct. 789 (1992)
(Oklahoma statute requiring power plants to burn at least 10 percent
Oklahoma-mined coal);
New Energy Co. of Ind. v.
Limbach, 486 U.S. 269, 100 L. Ed. 2d
302, 108 S. Ct. 1803 (1988) (Ohio statute awarding tax credit
for sales of ethanol only if it is produced in Ohio or in a State that awards
similar tax breaks for Ohio-produced ethanol);
New England Power Co. v.
New Hampshire, 455 U.S. 331, 71 L. Ed. 2d 188, 102 S. Ct. 1096 (1982) (New
Hampshire statute prohibiting hydroelectric power from being sold out of State
without permission from the State's Public Utilities Commission);
Hughes v.
Oklahoma, 441 U.S. 322, 60 L. Ed. 2d 250,
99 S. Ct. 1727 (1979) (Oklahoma law forbidding out-of-state
sale of natural minnows).
As the majority recognizes, Local Law 9 shares two features with these local
processing
[**1695] cases. It regulates a
processing service available in interstate commerce,
i. e., the sorting
and baling of solid waste for disposal. And it does so in a fashion that
excludes out-of-town trash processors by its very terms. These parallels
between Local Law 9 and the statutes previously invalidated confer initial
plausibility on the majority's classification of this case with those earlier
ones on processing, and they even bring this one within the most general
language of some of the earlier cases, abhorring
[*416]
the tendency of such statutes "to impose an artificial rigidity on the
economic pattern of the industry,"
Toomer
v.
Witsell, 334 U.S. 385, 403-404, 92 L. Ed. 1460, 68 S. Ct. 1156 (1948).
B
There are, however, both analytical and practical differences between this and
the earlier processing cases, differences the majority underestimates or
overlooks but which, if given their due, should prevent this case from being
decided the same way. First, the terms of Clarkstown's ordinance favor a single
processor, not the class of all such businesses located in Clarkstown. Second,
the one proprietor so favored is essentially an agent of the municipal
government, which (unlike Carbone or other private trash processors) must
ensure the removal of waste according to acceptable standards of public health.
Any discrimination worked by Local Law 9 thus fails to produce the sort of
entrepreneurial favoritism we have previously defined and condemned as
protectionist.
1
The outstanding feature of the statutes or ordinances reviewed in the local
processing cases is their distinction between two classes of private economic
actors according to location, favoring shrimp hullers within Louisiana,
milk pasteurizers within five miles of the center of Madison, and so on. See
Foster-Fountain
Packing Co. v.
Haydel, 278 U.S. 1, 73 L. Ed. 147, 49 S. Ct. 1 (1928);
Dean
Milk Co. v.
Madison, supra. Since nothing in these local
processing laws prevented a proliferation of local businesses within the State
or town, the out-of-town processors were not excluded as part and parcel of a
general exclusion of private firms from the market, but as a
[***424] result of discrimination among such firms
according to geography alone. It was because of that discrimination in favor of
local businesses, preferred at the expense of their out-of-town or out-of-state
competitors, that the Court struck down those local processing
[*417] laws
5 as classic
examples of the economic protectionism the dormant Commerce
Clause jurisprudence aims to prevent. In the words of one commentator
summarizing our case law, it is laws "adopted for the purpose of improving
the competitive position of local economic actors, just because they are local,
vis-a-vis their foreign competitors" that offend the Commerce
Clause. Regan, The Supreme Court and State Protectionism: Making Sense of
the Dormant Commerce
Clause,
[**1696] 84
Mich. L. Rev. 1091, 1138 (1986). The
Commerce
Clause does not otherwise protect access to local markets.
Id.,
at 1128.
6
FOOTNOTES
5
See
South-Central Timber Development,
Inc. v.
Wunnicke, 467 U.S. 82, 92, 81 L. Ed. 2d 71, 104 S. Ct. 2237 (1984)
(quoting
South Carolina Highway Dept. v.
Barnwell Brothers, Inc., 303 U.S. 177, 185, n. 2, 82 L.
Ed. 734, 58 S. Ct. 510 (1938)) (danger lies in regulation
whose "'burden falls principally upon those without the state'");
Dean Milk Co. v.
Madison, 340 U.S. 349, 354, 95 L. Ed.
329, 71 S. Ct. 295 (1951) (in "erecting an economic
barrier protecting a major local industry against competition from without the
State, Madison plainly discriminates against interstate commerce. This it
cannot do . . .");
Foster-Fountain Packing Co. v.
Haydel, 278 U.S. 1, 13, 73 L. Ed. 147,
49 S. Ct. 1 (1928) (statute unconstitutional because it
"favor[s] the canning of the meat and the manufacture of bran in
Louisiana" instead of Biloxi);
Minnesota v.
Barber, 136 U.S. 313, 323, 34 L. Ed.
455, 10 S. Ct. 862 (1890) (statute infirm because its
necessary result is "discrimination against the products and business of
other States in favor of the products and business of Minnesota"). See
also
Fort Gratiot Sanitary Landfill,
Inc. v.
Michigan Dept. of Natural
Resources,
504 U.S. 353, 361, 119 L. Ed. 2d 139, 112 S. Ct. 2019 (1992)
(statute infirm because it protects "local waste producers . . . from
competition from out-of-state waste producers who seek to use local waste
disposal areas");
Philadelphia v.
New Jersey, 437 U.S. 617, 626-627, 57 L.
Ed. 2d 475, 98 S. Ct. 2531 (1978) (New Jersey "may not .
. . discriminate against articles of commerce coming from outside the State
unless there is some reason, apart from their origin, to treat them
differently").
6
See also Smith, State Discriminations Against Interstate Commerce, 74 Calif. L. Rev. 1203, 1204,
1213 (1986) ("The nub of the matter is that
discriminatory regulations are almost invariably invalid, whereas
nondiscriminatory regulations are much more likely to survive"; "[a]
regulation is discriminatory if it imposes greater economic burdens on those
outside the state, to the economic advantage of those within"); L. Tribe,
American Constitutional Law 417 (2d ed. 1988) ("The negative implications
of the commerce clause
derive principally from a
political theory of union, not from an
economic
theory of free trade. The function of the clause is to ensure national
solidarity, not economic efficiency").
[*418] The majority recognizes, but discounts,
this difference between laws favoring all local actors and this law favoring a
single municipal one. According to the majority, "this difference just
makes the protectionist effect of the ordinance more acute" because
outside investors cannot even build competing facilities within Clarkstown.
Ante,
at 392. But of course Clarkstown investors face the same prohibition, which is
to say that Local Law 9's exclusion of outside capital is part of a broader
exclusion of private capital, not a discrimination against out-of-state
investors as such.
7 Cf.
Lewis
v.
BT Investment Managers, Inc., 447 U.S. 27, 64 L. Ed. 2d 702, 100 S.
Ct. 2009 (1980) (striking down statute prohibiting businesses owned by
out-of-state banks, bank holding companies, or trust companies from providing
investment advisory services). Thus, while these differences may underscore the
[***425] ordinance's anticompetitive effect,
they substantially mitigate any protectionist effect, for subjecting
out-of-town investors and facilities to the same constraints as local ones is
not economic protectionism. See
New
Energy Co. of Ind. v.
Limbach, 486 U.S. at 273-274.
8
FOOTNOTES
7
The record does not indicate whether local or out-of-state investors own the
private firm that built Clarkstown's transfer station for the municipality.
8
In a potentially related argument, the majority says our case law supports the
proposition that an "ordinance is no less discriminatory because in-state
or in-town processors are also covered by [its] prohibition."
Ante,
at 391. If this statement is understood as doing away with the distinction
between laws that discriminate based on geography and those that do not,
authority for it is lacking. The majority supports its statement by citing from
a footnote in
Dean Milk, that "it is immaterial that Wisconsin milk
from outside the Madison area is subjected to the same proscription as that
moving in interstate commerce," 340 U.S. at 354, n. 4,
but that observation merely recognized that our dormant Commerce Clause
jurisprudence extends to municipalities as well as to States and invalidates
geographical restrictions phrased in miles as well as in terms of political
boundaries. This reading is confirmed by the fact that the
Dean Milk
Court's only explanation for its statement was to cite a case striking down a
statute forbidding the selling of "'any fresh meats . . . slaughtered one
hundred miles or over from the place at which it is offered for sale, until and
except it has been inspected'" at a cost to its owner of a penny per
pound.
Brimmer v.
Rebman, 138 U.S. 78, 80, 34 L. Ed. 862,
11 S. Ct. 213 (1891) (quoting Acts of Va. 1889-1890, p. 63,
ch. 80). That the majority here cites also to
Fort Gratiot Landfill v.
Michigan Dept. of Natural
Resources, supra, may indicate that it reads
Dean Milk
the same way I do, but then it cannot use the case to stand for the more
radical proposition I quoted above.
[*419] 2
Nor is the monopolist created by Local Law 9 just another private company
successfully enlisting local government to protect the jobs and profits of
local citizens. While our previous local processing cases have barred discrimination
in markets served by private companies, Clarkstown's transfer station is
essentially a municipal facility, built and operated under a contract with the
municipality and soon to revert entirely to municipal ownership.
9 This, of
course, is no mere coincidence, since the facility performs a municipal
function that tradition as well as state and federal law recognize as the
domain
[**1697] of local government.
Throughout the history of this country, municipalities have taken
responsibility for disposing of local garbage to prevent noisome smells,
obstruction of the streets, and threats to public health,
10 and today
[*420] 78 percent of landfills receiving
municipal solid waste are owned by local governments. See U.S. Environmental Protection
Agency, Resource Conservation and Recovery Act, Subtitle D
[***426] Study: Phase 1 Report, p. 4-7 (Oct. 1986)
(Table 4-2). The National Government provides "technical and financial
assistance to States or regional authorities for comprehensive planning"
with regard to the disposal of solid waste, 42
U.S.C. § 6941, and the State of New York authorizes local governments to
prepare such management plans for the proper disposal of all solid waste
generated within their jurisdictions, N.
Y. Envir. Conserv. Law § 27-0107 (McKinney
Supp. 1994). These general provisions underlie Clarkstown's more specific
obligation (under its consent decree with the New York State Department of
Environmental Conservation) to establish a transfer station in place of the old
town dump, and it is to finance this transfer station that Local Law 9 was
passed.
FOOTNOTES
9
At the end of a 5-year term, during which the private contractor receives
profits sufficient to induce it to provide the plant in the first place, the
town will presumably step into the contractor's shoes for the nominal dollar.
Such contracts, enlisting a private company to build, operate, and then
transfer to local government an expensive public improvement, enable
municipalities to acquire public facilities without resorting to municipal
funds or credit.
10
For example, in 1764 the South Carolina Legislature established a street
commission for Charleston
with the power "to remove all filth and rubbish, to such proper place or
places, in or near the said town, as they . . . shall allot . . . ." Act
of Aug. 10, 1764, P1. In New Amsterdam a
century earlier, "the burgomasters and
schepens ordained that all
such refuse be brought to dumping-grounds near the City Hall and the gallows
nor to other designated places." M. Goodwin, Dutch and English on the Hudson 105 (1977 ed.).
Indeed, some communities have employed flow control ordinances in pursuit of
these goals, ordinances this Court has twice upheld against constitutional
attack. See
California Reduction Co. v.
Sanitary Reduction Works, 199 U.S. 306, 50 L. Ed. 204, 26
S. Ct. 100 (1905) (upholding against a takings challenge an
ordinance requiring that all garbage in San Francisco be disposed of, for a
fee, at facilities belonging to F. E. Sharon);
Gardner v.
Michigan, 199 U.S. 325, 50 L. Ed. 212, 26
S. Ct. 106 (1905) (upholding against due process challenge an
ordinance requiring that all garbage in Detroit be collected and disposed of by
a single city contractor). It is not mere inattention that has left these fine
old cases free from subsequent aspersion, for they illustrate that even at the
height of the
Lochner era the Court recognized that for municipalities
struggling to abate their garbage problems, the Constitution did not require
unimpeded private enterprise.
The majority ignores this distinction between public and private enterprise,
equating Local Law 9's "hoarding" of solid waste for the municipal
transfer station with the design and effect of ordinances that restrict access
to local markets for the benefit of local private firms.
Ante, at 392.
But private businesses, whether local or out of State, first serve the
[*421] private interests of their owners, and there is
therefore only rarely a reason other than economic protectionism for favoring
local businesses over their out-of-town competitors. The local government
itself occupies a very different market position, however, being the one entity
that enters the market to serve the public interest of local citizens quite
apart from private interest in private gain. Reasons other than economic
protectionism are accordingly more likely to explain the design and effect of
an ordinance that favors a public facility. The facility as constructed might,
for example, be one that private economic actors, left to their own devices,
would not have built, but which the locality needs in order to abate (or
guarantee against creating) a public nuisance. There is some evidence in this
case that this is so, as the New York State Department of Environmental
Conservation would have had no reason to insist that Clarkstown build its own
transfer station if the private market had furnished adequate processing
capacity to meet Clarkstown's needs. An ordinance that favors a municipal
facility, in any event, is one that favors the public sector, and if "we
continue to recognize that the States occupy a special and specific position in
our constitutional system and that the scope of Congress' authority under the Commerce
Clause must reflect that position,"
Garcia
v.
San Antonio Metropolitan Transit Authority, 469 U.S. 528, 556, 83 L.
Ed. 2d 1016, 105 S. Ct. 1005 (1985), then surely this Court's dormant Commerce
Clause jurisprudence must itself
[**1698]
see that favoring state-sponsored facilities differs from discriminating among
private economic actors, and is much less likely to be protectionist.
3
Having established that Local Law 9 does not serve the competitive class
identified in previous local processing
[***427]
cases and that Clarkstown differs correspondingly from other local processors,
we must ask whether these differences justify a standard of dormant Commerce
Clause review that differs
[*422] from the
virtually fatal scrutiny imposed in those earlier cases. I believe they do.
The justification for subjecting the local processing laws and the broader
class of clearly discriminatory commercial regulation to near-fatal scrutiny is
the virtual certainty that such laws, at least in their discriminatory aspect,
serve no legitimate, nonprotectionist purpose. See
Philadelphia
v.
New Jersey, 437 U.S. at 624 ("Where simple economic
protectionism is effected by state legislation, a virtually
per se rule
of invalidity has been erected").
11 Whether we
find "the evil of protectionism,"
id.,
at 626, in the clear import of specific statutory provisions or in the
legislature's ultimate purpose, the discriminatory scheme is almost always
designed either to favor local industry, as such, or to achieve some other goal
while exporting a disproportionate share of the burden of attaining it, which is
merely a subtler form of local favoritism,
id.,
at 626-628.
FOOTNOTES
11
For the rare occasion when discriminatory laws are the best vehicle for
furthering a legitimate state interest,
Maine v.
Taylor, 477 U.S. 131, 91 L. Ed. 2d 110,
106 S. Ct. 2440 (1986), provides an exception, but we need
not address that exception here because this ordinance is not subject to the
presumption of unconstitutionality appropriate for protectionist legislation.
On the other hand, in a market served by a municipal facility, a law that
favors that single facility over all others is a law that favors the public
sector over all private-sector processors, whether local or out of State.
Because the favor does not go to local private competitors of out-of-state
firms, out-of-state governments will at the least lack a motive to favor their
own firms in order to equalize the positions of private competitors. While a
preference in favor of the government may incidentally function as local
favoritism as well, a more particularized enquiry is necessary before a court
can say whether such a law does in fact smack too strongly of economic
protectionism. If Local Law 9 is to be struck down, in other words, it must be
under that test most readily
[*423] identified
with
Pike
v.
Bruce Church, Inc., 397 U.S. 137, 25 L. Ed. 2d 174, 90 S. Ct. 844
(1970).
III
We have said that when legislation that does not facially discriminate
"comes into conflict with the Commerce
Clause's overriding requirement of a national 'common market,' we are
confronted with the task of effecting an accommodation of the competing
national and local interests."
Hunt
v.
Washington State Apple Advertising Comm'n, 432 U.S. 333, 350, 53 L.
Ed. 2d 383, 97 S. Ct. 2434 (1977). Although this analysis of competing
interests has sometimes been called a "balancing test," it is not so
much an open-ended weighing of an ordinance's pros and cons, as an assessment
of whether an ordinance discriminates in practice or otherwise unjustifiably
operates to isolate a State's economy from the national common market. If a
statute or local ordinance serves a legitimate local interest and does not
patently discriminate, "it will be upheld unless the burden imposed on
[interstate] commerce is clearly excessive in relation to the putative local
[***428] benefits."
Pike
v.
Bruce Church, Inc., supra, at 142. The analysis is similar to, but
softer around the edges than,
12 the test we
[**1699] employ in cases of overt
discrimination. "The question becomes one of degree," and its answer
depends on the nature of the burden on interstate commerce, the nature of the
local interest, and the availability of alternative methods for advancing the
[*424] local interest without hindering the
national one. 397
U.S. at 142, 145.
FOOTNOTES
12
Where discrimination is not patent on the face of a statute, the party
challenging its constitutionality has a more difficult task, but appropriately
so because the danger posed by such laws is generally smaller. Discrimination
that is not patent or purposeful "in effect may be substantially less
likely to provoke retaliation by other states . . . . In the words of Justice
Holmes, 'even a dog distinguishes between being stumbled over and being
kicked.'" Smith, 74 Calif. L. Rev., at 1251
(quoting O. W. Holmes, The Common Law 3 (1881)). See also Regan, The Supreme
Court and State Protectionism: Making Sense of the Dormant Commerce Clause,
84 Mich. L. Rev. 1091, 1133-1134
(1986).
The primary burden Carbone attributes to flow control ordinances such as Local
Law 9 is that they "prevent trash from being sent to the most
cost-effective disposal facilities, and insulate the designated facility from
all price competition." Brief for Petitioners 32. In this case, customers
must pay $ 11 per ton more for dumping trash at the Clarkstown transfer station
than they would pay at Carbone's facility, although this dollar figure
presumably overstates the burden by disguising some differences between the
two: according to its state permit, 90 percent of Carbone's waste stream comprises
recyclable cardboard, while the Clarkstown facility takes all manner of less
valuable waste, which it treats with state-of-the-art environmental technology
not employed at Carbone's more rudimentary plant.
Fortunately, the dollar cost of the burden need not be pinpointed, its nature
being more significant than its economic extent. When we look to its nature, it
should be clear that the monopolistic character of Local Law 9's effects is not
itself suspicious for purposes of the Commerce
Clause. Although the right to compete is a hallmark of the American economy
and local monopolies are subject to challenge under the century-old Sherman
Act,
13 the bar to
monopolies (or, rather, the authority to dismember and penalize them) arises
from a statutory, not a constitutional, mandate. No more than the Fourteenth
Amendment, the Commerce
Clause "does not enact Mr. Herbert Spencer's Social Statics . . . [or]
[*425] embody a particular economic theory,
whether of paternalism . . . or of
laissez faire."
Lochner
v.
New York, 198 U.S. 45, 75, 49 L. Ed. 937, 25 S. Ct. 539 (1905)
(Holmes, J., dissenting). The dormant Commerce
Clause does not "protect the particular structure or methods of operation
in a[ny] . . . market."
Exxon
Corp. v.
Governor of Maryland, 437 U.S. 117, 127, 57 L. Ed. 2d 91,
98 S. Ct. 2207 (1978). The only right to compete that it protects is the
right to compete on terms independent of one's location.
FOOTNOTES
13
See 15 U.S.C. §§ 1
and 2. Indeed,
other flow control ordinances have been challenged under the Sherman Act,
although without success where municipal defendants have availed themselves of
the state action exception to the antitrust laws. See
Hybud Equipment Corp. v.
Akron, 742
F.2d 949 (CA6 1984);
Central Iowa Refuse Systems, Inc. v.
Des Moines Metropolitan Solid Waste Agency, 715 F.2d 419 (CA8 1983). That the State
of New York's Holland-Gromack Law, 1991 N. Y. Laws, ch. 569 (McKinney),
authorizes Clarkstown's flow control ordinance may explain why no Sherman Act
claim was made here.
[***429] While the monopolistic nature of the
burden may be disregarded, any geographically discriminatory elements must be
assessed with care. We have already observed that there is no geographically
based selection among private firms, and it is clear from the face of the
ordinance that nothing hinges on the source of trash that enters Clarkstown or
upon the destination of the processed waste that leaves the transfer station.
There is, to be sure, an incidental local economic benefit, for the need to
process Clarkstown's trash in Clarkstown will create local jobs. But this local
boon is mitigated by another feature of the ordinance, in that it finances
whatever benefits it confers on the town from the pockets of the very citizens
who passed it into law. On the reasonable assumption that no one can avoid
producing some trash, every resident of Clarkstown must bear a portion of the
burden Local Law 9 imposes to support the municipal monopoly, an
uncharacteristic feature of statutes claimed to violate the Commerce
Clause.
By way of contrast, most of the local processing statutes we have previously
invalidated imposed requirements that made local
[**1700]
goods more expensive as they headed into the national market, so that
out-of-state economies bore the bulk of any burden. Requiring that Alaskan
timber be milled in that State prior to export would add the value of the
milling service to the Alaskan economy at the expense of some other State, but
would not burden the Alaskans who adopted such a law. Cf.
South-Central
Timber Development, Inc. v.
Wunnicke, 467 U.S. 82, 92, 81 L. Ed. 2d
71, 104 S. Ct. 2237 (1984). Similarly, South
Carolinians
[*426] would retain
the financial benefit of a local processing requirement for shrimp without
paying anything more themselves. Cf.
Toomer
v.
Witsell, 334 U.S. at 403.
14
And in
Philadelphia
v.
New Jersey, 437 U.S. at 628, the State attempted to export the
burden of conserving its scarce landfill space by barring the importation of
out-of-state waste. See also
Brown-Forman
Distillers Corp. v.
New York State Liquor Authority, 476 U.S. 573,
580, 90 L. Ed. 2d 552, 106 S. Ct. 2080 (1986) (price reduction for in-state
consumers of alcoholic beverages procured at the expense of out-of-state
consumers). Courts step in through the dormant Commerce
Clause to prevent such exports because legislative action imposing a burden
"'principally upon those without the state . . . is not likely to be subjected
to those political restraints which are normally exerted on legislation where
it affects adversely some interests within the state.'"
South-Central
Timber, supra, at 92 (quoting
South
Carolina Highway Dept. v.
Barnwell Brothers, Inc., 303 U.S. 177,
185, n. 2, 82 L. Ed. 734, 58 S. Ct. 510 (1938)); see also
Southern
Pacific Co. v.
Arizona ex rel. Sullivan, 325 U.S. 761, 767-768, n.
2, 89 L. Ed. 1915, 65 S. Ct. 1515 (1945). Here, in contrast, every voter in
Clarkstown pays to fund the benefits of flow control, however high the tipping
fee is set. Since, indeed, the mandate to use the town facility will only make
a difference when the tipping fee raises the cost of using the facility above
what the market would otherwise
[***430] set,
the Clarkstown voters are funding their benefit by assessing themselves and
paying an economic penalty. Any whiff of economic protectionism is far from
obvious.
15
FOOTNOTES
14
I recognize that the economics differ if a State does not enjoy a significant
price advantage over its neighbors and thus cannot pass along the added costs
associated with its local processing requirement, but such States are unlikely
to adopt local processing requirements for precisely that reason.
15
This argument does not alone foreclose the possibility of economic
protectionism in this case, as the ordinance could burden, in addition to the
residents of Clarkstown, out-of-town trash processors who would have sought
Clarkstown's business in the absence of flow control. But as we will see, the
absence of evidence of injury to such processors eliminates that argument here.
[*427] An examination of the record confirms
skepticism that enforcement of the ordinance portends a Commerce
Clause violation, for it shows that the burden falls entirely on Clarkstown
residents. If the record contained evidence that Clarkstown's ordinance
burdened out-of-town providers of garbage sorting and baling services, rather
than just the local business that is a party in this case, that fact might be
significant. But petitioners have presented no evidence that there are transfer
stations outside Clarkstown capable of handling the town's business, and the
record is devoid of evidence that such enterprises have lost business as a result
of this ordinance. Cf.
Pike
v.
Bruce Church, Inc., 397 U.S. at 145 ("The nature of the
burden is, constitutionally, more significant than its extent" and the
danger to be avoided is that of laws that hoard business for local residents).
Similarly, if the record supported an inference that above-market pricing at
the Clarkstown transfer station caused less trash to flow to out-of-state
landfills and incinerators, that, too, might have constitutional significance.
There is, however, no evidence of any disruption in the flow of trash from
curbsides in Clarkstown to landfills in Florida
and Ohio.
16
[**1701] Here
[*428]
we can confidently say that the only business lost as a result of this
ordinance is business lost in Clarkstown, as customers who had used Carbone's
facility drift away in response to any higher fees Carbone may have to
institute to afford its share of city services; but business lost in Clarkstown
as a result of a Clarkstown ordinance is not a burden that offends the
Constitution.
FOOTNOTES
16
In this context, note that the conflict JUSTICE O'CONNOR hypothesizes between
multiple flow-control laws is not one that occurs in this case. If Carbone was
processing trash from New Jersey,
it was making no attempt to return the nonrecycled residue there. And
theoretically, Carbone could have complied with both flow control ordinances,
as Clarkstown's law required local processing, while New Jersey's required only
that any postprocessing residue be returned to the State. But more
fundamentally, even if a nondiscriminatory ordinance conflicts with the law of
some other jurisdiction, that fact would not, in itself, lead to its invalidation.
In the cases JUSTICE O'CONNOR cites, the statutes at issue served no legitimate
state interest that weighed against the burden on interstate commerce their
conflicts created. See
Bibb v.
Navajo Freight Lines, Inc., 359 U.S. 520, 525, 3 L. Ed. 2d
1003, 79 S. Ct. 962 (1959) (mudguards Illinois required on
trucks possess no safety advantage but create new hazards);
Southern Pacific Co. v.
Arizona ex rel. Sullivan, 325
U.S. 761, 779, 89 L. Ed. 1915, 65 S. Ct. 1515 (1945)
(Arizona statute limiting length of trains "affords at most slight and
dubious advantage, if any" with respect to safety). Here, in contrast, we
will see that the municipality's interests are substantial and that the
alternative means for advancing them are less desirable and potentially as
disruptive of interstate commerce. Finally, in any conflict between flow
control that reaches only waste within its jurisdiction and flow control that
reaches beyond (requiring waste originating locally to be returned after
processing elsewhere), it may be the latter that should give way for regulating
conduct occurring wholly out of State. See
Brown-Forman Distillers Corp. v.
New York State Liquor Authority, 476 U.S. 573, 580-582, 90 L.
Ed. 2d 552, 106 S. Ct. 2080 (1986).
This skepticism that protectionism is afoot here is confirmed again when we
examine the governmental interests
[***431]
apparently served by the local law. As mentioned already, the State and its
municipalities need prompt, sanitary trash processing, which is imperative
whether or not the private market sees fit to serve this need at an affordable
price and to continue doing so dependably into the future. The state and local
governments also have a substantial interest in the flow-control feature to
minimize the risk of financing this service, for while there may be an element
of exaggeration in the statement that "resource recovery facilities cannot
be built unless they are guaranteed a supply of discarded material," H. R.
Rep. No. 94-1491, p. 10 (1976), there is no question that a "put or
pay" contract of the type Clarkstown signed will be a significant
inducement to accept municipal responsibility to guarantee efficiency and
sanitation in trash processing. Waste disposal with minimal environmental
damage requires serious capital investment,
id.,
at 34, and there are limits on any municipality's ability to incur debt or
[*429] to finance facilities out of tax
revenues. Protection of the public fisc is a legitimate local benefit directly
advanced by the ordinance and quite unlike the generalized advantage to local
businesses that we have condemned as protectionist in the past. See Regan, 84
Mich. L. Rev., at 1120 ("Raising revenue for the state treasury is a
federally cognizable benefit"; protectionism is not); cf.
Fort
Gratiot Sanitary Landfill, Inc. v.
Michigan Dept. of Natural Resources,
504 U.S. 353, 357, 119 L. Ed. 2d 139, 112 S. Ct. 2019 (1992) (law protects
private, not publicly owned, waste disposal capacity for domestic use);
Philadelphia
v.
New Jersey, 437 U.S. at 627, n. 6 (expressing no opinion about
State's power to favor its own residents in granting access to state-owned
resources).
17
FOOTNOTES
17
The Court did strike down California's depression-era ban on the
"importation" of indigent laborers despite the State's protestations
that the statute protected the public fisc from the strain of additional
outlays for poor relief, but the Court stressed the statute's direct effect on
immigrants instead of relying on any indirect effects on the public purse. See
Edwards v.
California, 314 U.S. 160, 174, 86 L. Ed.
119, 62 S. Ct. 164 (1941).
Moreover, flow control offers an additional benefit that could not be gained by
financing through a subsidy derived from general tax revenues, in spreading the
cost of the facility among all Clarkstown residents who generate trash. The
ordinance does, of course,
[**1702] protect
taxpayers, including those who already support the transfer station by
patronizing it, from ending up with the tab for making provision for
large-volume trash producers like Carbone, who would rely on the municipal
facility when that was advantageous but opt out whenever the transfer station's
price rose above the market price. In proportioning each resident's burden to
the amount of trash generated, the ordinance has the added virtue of providing
a direct and measurable deterrent to the generation of unnecessary waste in the
first place. And in any event it is far from clear that the alternative to flow
control (
i. e., subsidies from general tax revenues or municipal bonds)
would be less disruptive of interstate commerce
[*430]
than flow control, since a subsidized competitor can effectively squelch
competition by underbidding it.
There is, in short, no evidence that Local Law 9 causes discrimination against
out-of-town processors, because there is no evidence in the record that such
processors have lost business as a result of it. Instead, we know only that the
ordinance causes
[***432] the local residents
who adopted it to pay more for trash disposal services. But local burdens are
not the focus of the dormant Commerce
Clause, and this imposition is in any event readily justified by the
ordinance's legitimate benefits in reliable and sanitary trash processing.
* * *
The Commerce
Clause was not passed to save the citizens of Clarkstown from themselves.
It should not be wielded to prevent them from attacking their local garbage
problems with an ordinance that does not discriminate between local and
out-of-town participants in the private market for trash disposal services and
that is not protectionist in its purpose or effect. Local Law 9 conveys a
privilege on the municipal government alone, the only market participant that
bears responsibility for ensuring that adequate trash processing services
continue to be available to Clarkstown residents. Because the Court's decision
today is neither compelled by our local processing cases nor consistent with
this Court's reason for inferring a dormant or negative aspect to the Commerce
Clause in the first place, I respectfully dissent.
REFERENCES
Validity, under Federal
Constitution's commerce clause (Art I, 8, cl 3), of state or local
regulation of transportation, processing, or disposal of solid waste or
garbage--Supreme Court cases
15A
Am Jur 2d, Commerce 95; 56
Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions
461,
462
5A Am Jur Pl & Pr Forms (Rev), Commerce, Forms 1-22
USCS,
Constitution, Art I, 8, cl 3
L Ed Digest, Commerce 220
L Ed Index, Commerce; Garbage or Refuse; Waste
ALR Index, Business and Commerce; Garbage and Refuse; Waste
Annotation
References:
Validity, under commerce
clause of Federal Constitution, of state restrictions on interstate
movement of goods, products, and natural resources originating from within
state-- Supreme Court cases. 71
L Ed 2d 890.
Commerce
clause of Federal Constitution as violated by state or local regulation or
prohibition affecting business of selling, distributing, packaging, packing,
labeling, or processing food intended for human consumption-- Supreme Court
cases. 25
L Ed 2d 846.
Validity of municipal ordinance imposing requirements on outside producers of
milk to be sold in city. 14 ALR2d 103.
