ELR Citation: ELR 20256
No(s). s. 93-2669 (JEI), 94-3244 (JEI) (D.N.J. Jun 9, 1995)

The court holds that New Jersey solid waste flow-control regulations probably violate the Commerce Clause of the U.S. Constitution, but grants only a conditional preliminary injunction to prevent enforcement of the regulations for construction and demolition debris. The court first addresses the claims of an operator of a Pennsylvania transfer station and recycling center for construction and demolition debris. The court holds that for the purposes of a motion for preliminary injunctive relief, defendants have not demonstrated that there is no alternative to these waste-flow regulations that would accomplish the state's legitimate objectives. Although defendants' argument that the Third Circuit would have directed this court to enter judgment for the operator if its case was certain to succeed has some appeal, it does not recognize that a plaintiff seeking injunctive relief need show only a likelihood of success on the merits, not a certainty of success. Moreover, defendants fail to show that even the relatively simple alternatives suggested by the U.S. Supreme Court in C&A Carbone, Inc. v. Town of Clarkstown, 24 ELR 20815 (1994), such as the "unobstructed flow of interstate commerce" and "general taxes and municipal bonds," would be infeasible alternatives to the current discriminatory regime. Defendants have not cited any authority stating that the court should abstain from granting preliminary injunctive relief based on the contingency that Congress might enact a bill that would retroactively authorize municipal waste-flow regulations. Furthermore, congressional bills, even those overwhelmingly passed by one house of Congress, often stall in the legislative process. Therefore, the court holds that the operator has made a strong showing of likelihood of success on the merits. The court holds that the operator has not made the necessary clear showing that denial of the preliminary injunction will force it out of business. Nonetheless, the operator has suffered a high degree of monetary damage over an extended period of time from a waste-flow regulation that, in light of the Third Circuit's decision and the current state of the record, is likely to be unconstitutional. Furthermore, this damage was inflicted by New Jersey and its agencies, all of which are immune from money damages in this court under the Eleventh Amendment. The court holds that the money damages the operator has suffered that it cannot recover from the state entities are irreparable harm. The court next holds that defendants have not shown that the narrow relief the operator seeks—enjoining the regulations with respect to construction and demolition waste—will reduce the value or cause default of the county authorities' publicly issued bonds, will cause monetary damage to entities that own waste disposal facilities within the waste-flow regulation scheme, will cause administrative inconvenience for the state, or will undermine the goals of New Jersey's comprehensive waste-flow plan. While defendants have shown that enjoining a large segment of the waste-flow regulations will cause them harm and that all bulky waste makes up 20 percent of New Jersey's solid waste stream, the current record shows neither the portion of the 20 percent that is made up of the type of construction and demolition waste that the operator processes, nor the effect that an injunction limited to this material would have on defendants and the public. In the absence of a showing that the relief the operator requests will dismantle a significant portion of the existing waste-flow scheme, defendants' warnings about the harm that preliminary relief will cause them are unconvincing. The court holds that the operator's proposed injunction will affect less than 20 percent of the waste generated in New Jersey, and therefore will not frustrate the goals of programs such as the solid waste plan. The court then holds that the only significant impact on others is requiring disposal facilities in New Jersey to compete with out-of-state facilities for the disposal of construction and demolition waste, an obligation that is mandated by the U.S. Supreme Court's interpretation of the dormant Commerce Clause. While the court has found that defendants will not suffer significant irreparable harm as a result of the envisioned injunction, it has done so more out of a lack of information than out of a firm conviction in the accuracy of this statement. The court thus grants the operator injunctive relief conditioned on the court's consideration of further input from the parties to determine whether the injunctive scheme could have deleterious effects on both defendants and the public.

Turning to the two trade association plaintiffs, the court holds that the associations' members engage in activities similar to those engaged in by the operator, and therefore are equally likely to succeed on the merits of their claim. While the association's failed to provide the court with evidence of their membership or the names of members that are affected by New Jersey's waste-flow plan, it seems clear that the associations' members from within and outside New Jersey would have standing to challenge the waste-flow regulations, that the instant suit may further the purposes of the associations, and that the broad-based injunctive relief the associations seek does not require the participation of any individual member. The court therefore holds that the associations have shown a likelihood of success on the merits for the purposes of this motion and that defendants may bring further challenges to the associations' standing by formal motion. The court holds that the associations have made only the most minimal showing of irreparable harm necessary to prevent denial of their request for preliminary injunctive relief, because they have wholly failed to quantify the degree of economic harm they have suffered. The court has before it no evidence regarding the extent of damages caused by the waste-flow regulations. Therefore, even if the associations' members cannot recover these damages from the state, they have made no showing regarding the degree to which their damages are irreparable. Because the association's members deal in all types of solid waste, the relief they seek will require the wholesale suspension of the New Jersey waste-flow regulations. Even on a pendente lite basis, this could cause a decrease in value and possible default on the county authorities' revenue bonds and the environmental hazards and logistical nightmares envisioned by the state. Because the moving parties' sole showing of irreparable harm consists of a bare violation of rights under the dormant Commerce Clause, the defendants' showing of harm defeats the associations' request for preliminary relief. The court holds that injunctive relief is inappropriate, because this injunction would more than likely result in the destruction of a highly complex and integrated waste-disposal system and the concomitant destruction of the expectations and economic rights of participants in that system. Preliminary injunctive relief suspending the entire waste flow scheme would not only disrupt the status quo, but would give the associations all the relief they seek in this case. The court holds that it will deny the association plaintiffs' request for preliminary relief and give defendants the opportunity to show at a full hearing on the merits that no feasible alternatives exist.

Turning to the municipal plaintiffs, the court holds that the law in this circuit precludes these plaintiffs from asserting constitutional claims against the state and county authorities, because municipalities may not assert claims against the creating state under substantive constitutional guarantees, and may do so only under the Supremacy Clause of the U.S. Constitution. The court notes in a footnote that a state statute that authorizes municipalities to sue and be sued cannot give those municipalities a right to sue for the violation of constitutional protections that they do not enjoy vis-à-vis the creating state. The court holds that the two municipal plaintiffs that have proceeded in the name of their mayors in their official capacities similarly fail to show a likelihood of success on the merits. Although municipal officials that must choose between violating the U.S. Constitution or taking actions under a state law that are likely to bring their expulsion have standing to challenge the constitutionality of the state law, the mayors do not allege that state law requires them to violate the constitutional rights of others, but that the rights of their towns are violated by state law, rights that the court has already found do not exist. Because the court has found that the municipal plaintiffs cannot assert the claims at issue here, they will be dismissed from the remainder of the case for failure to state a claim. The court notes that the municipal plaintiffs failed to meet their burden on the remaining factors governing preliminary relief for primarily the same reasons as the association plaintiffs. The court holds the municipalities' claim that the waste-flow regulations have caused them irreparable harm by forcing them to pay more for waste disposal is extremely speculative. The municipal plaintiffs have not shown that over the long term, other contingencies would not bring the cost of municipal waste disposal to current levels or higher. Furthermore, municipal solid waste makes up more than 75 percent of the solid waste generated in New Jersey, and the equities of harm to the defendants and the public would weigh against the grant of the injunction for the same reasons as discussed in conjunction with the association plaintiffs.

[A previous decision in this litigation is published at 25 ELR 20620.]

Counsel for Plaintiffs
Mitchell Feigenbaum
Mesirov, Gelman, Jaffe, Cramer & Jamieson
44 Tanner St., Haddonfield NJ 08033
(609) 795-4988

Counsel for Defendants
Stephen P. Sinisi
Sinisi, Van Dam & Sproviero
Two Sears Dr., Paramus NJ 07653
(201) 599-1600