Scaling the Garbage Mountain: New Jersey Supreme Court Upholds Prohibition on Solid Waste Importation

In a decision that is likely to be emulated in other states, the Supreme Court of New Jersey has recently rejected Commerce Clause challenges to that state's ban on the in-state dumping of solid waste originating outside New Jersey. The unanimous opinion in Hackensack Meadowlands Development Commission v. Municipal Sanitary Landfill Authority¹ found that state erection of such barriers was an undeniably legitimate police power action, and that the beneficial postponement of sacrificing increasingly scarce wetlands to landfill operators far outweighed any corresponding hindrance to interstate transportation of non-recyclable solid wastes. Following in the wake of notably unsuccessful attempts under the Commerce Clause to overturn bans on nonreturnable bottles,² phosphate detergents,³ and marine oil spillage,⁴ the decision may ultimately lead to enactment of similar measures in other states,⁵ a development that [6 ELR 10106] would only accelerate the balkanization of environmental management. On the other hand, the case serves as a bellwhether for the tough solid waste-related land-use decisions that may soon become the national norm.

The Solid Waste Problem

There is no dispute that solid waste disposal is a problem of monumental proportions. Latest available figures show that nationwide postconsumer solid waste generation equals 144 million tons annually, and that only 6.5 percent of this is recycled.⁶ These figures, of course, do not take into account wastes resulting from preconsumer industrial processing, such as mining tailings and agricultural residues. Increasingly stringent air and water pollution standards and ocean dumping restrictions require that irreducible pollutants, such as stack scrubber residues and sewage sludge, be disposed of somewhere. That dubious honor, through a process of elimination, usually goes to solid waste landfill sites, which themselves often become polluters through the leaching of chemicals from the wastes into groundwater.

Urban population concentrations, such as that along the eastern seaboard, generate disproportionately large quantities of wastes. In addition, landfill sites have often been located in wetland areas, which formerly were wrongly thought to have minimal value for society. Thus, New Jersey was faced with a double dose of solid waste ailments, for it is sandwiched between the New York metropolitan region and Philadelphia, and it contains large areas of wetlands proximate to urban centers. In fact, New Jersey authorities have determined that increasing percentages of solid wastes disposed of in the state originate out of state.

Federal and New Jersey Responses

In view of these problems, it is instructive to contrast the complex federal structures for controlling air and water pollution with the somewhat circumscribed national focus on solid waste control. The Solid Waste Disposal Act of 1965, as amended by the Resource Recovery Act of 1970, limits federal involvement in solid waste control to undertaking research and development programs, providing financial and technical assistance to localties, and encouraging local resource recovery initiatives.⁷ No national program is envisioned by the Act. Indeed, executive reluctance to encourage funding of existing programs has weakened federal involvement.⁸

This vacuum at the federal level in solid waste management has left the states effectively on their own. New Jersey's response was to enact a series of statutes designed to coordinate the state's solid waste programs,⁹ in 1974 culminating in amendments to the Waste Control Act, which prohibited the entry into New Jersey of "any solid or liquid waste which originated or was collected outside the territorial limits of the State" except when the commissioner of the Department of Envirmental Protection (DEP) had determined that the importation would not endanger public health, safety and welfare.¹⁰ Administrative regulations broadly interpreted this statutory provision to prohibit all waste imports except four types: (1) garbage fed to swine; (2) separated recyclable materials; (3) municipal solid waste that was convertible to usuable secondary materials, such as fuel; and (4) bulk liquid and hazardous wastes to be treated in a registered facility without subsequent land disposal.¹¹

Commerce Clause Challenges

These measures did not go long unchallenged. When the Hackensack Meadowlands Development Commission (HMDC) and DEP jointly prosecuted the Landfill Authority for accepting imported wastes, the defendant raised the argument that the statute and regulations under which it was being prosecuted violated the Commerce Clause. Soon after, the City of Philadelphia joined the bandwagon, asking the New Jersey courts to declare that the state prohibition violated the federal Commerce Clause. Following separate trial court decisions sustaining the challenges,¹² the New Jersey Supreme Court upheld the import prohibition after a detailed elaboration of the test for determining permissible state restrictions on interstate commerce. This test has most recently been articulated by the United States Supreme Court in Pike v. Bruce Church, Inc.:

Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits…. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.¹³

Applied to the environmental field, this rule means that state environmental protection measures grounded on an articulated police power goal of preventing environmental harm may infringe on interstate commerce, so long as their effect is non-discriminatory, they employ the least restrictive alternative, and their interstate commerce burden is not grossly disproportionate to demonstrable state benefits.

Threshold Questions

Before reaching this balancing test, courts must deal [6 ELR 10107] with two preliminary issues: whether federal programs preempt state action and whether the regulated materials constitute interstate commerce. As to the preemption question,¹⁴ the New Jersey court properly noted that the federal government has explicitly indicated an intent not to preempt the area of solid waste management. The Solid Waste Disposal Act provides that "the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies,"¹⁵ in addition to encouraging interstate and interlocal cooperation in solid waste programs.¹⁶ Unlike such areas as aircraft flight control¹⁷ and nuclear power plant operation,¹⁸ the need for national regulatory uniformity in solid waste control is slight. Moreover, the non-ambient nature of solid wastes distinguishes them to some extent from air and water pollution regulation.

As to whether solid waste materials are articles in interstate commerce, the court carefully distinguished between renewable waste materials, i.e., those with some commercial value, and wastes that have no intrinsic value. The former certainly are articles of trade, but the latter, which were the precise subject matter of the challenged regulations, were held not to be merchantable, and thus not part of interstate commerce. Armed with this distinction, the court was able to narrow the issue in the case to whether the transportation of valueless wastes could be prohibited.

Permissible State Objective

State restrictions even on the transportation of commercially useless wastes will be struck down unless the state has a legitimate reason for such control. For example, economic discrimination — burdening interstate carriers to protect resident merchants — is virtually a per se improper exercise of a state's police power.¹⁹ Economic protectionism is less likely to be a legislative motive when as in New Jersey's Waste Control Act, equal restrictions are placed on state and non-resident merchants alike. The statute thus contains an "inner political check"²⁰ sufficient to imply an even-handled legislative purpose. Furthermore, the court noted, restrictions on interstate commerce for environmental reasons have been consistently recognized by the Supreme Court.²¹ Indeed, along with traditional prohibitions on interstate commercial activity where the stronger rationale of protecting the public health from direct disease threats occurs,²² prohibition of trade in extraterritorial endangered species has been upheld.²³ In view of these precedents, the protection of vanishing wetlands, even for a brief period, and the public health from the hazards of solid waste is entirely legitimate.

Balancing Benefits and Burdens

Having once passed all these hurdles, state burdens on interstate commerce must also produce clear benefits to the state in order to win judicial approval. Analysis of these factors involves courts in a kind of legislative balancing act the continuing propriety of which some commentators have questioned.²⁴ Nevertheless, the New Jersey court explicitly undertook this balancing, and not surprisingly came out on the state's side. The putative benefits to be derived from the statute — protection of wetlands — are in fact being achieved by the prohibition, unlike some commerce clause cases where transparent state regulation in the name of safety could not possibly reap the purported benefits.²⁵ Conversely, the court noted, the burden on commerce was slight indeed, since the affected out-of-state parties could find feasible alternatives to dumping in New Jersey with modest cost increases.

The court did, however, hedge a bit in its balancing. It emphasized that saving the wetlands for future generations was the primary benefit of the state restriction, while seemingly ignoring its earlier notice of state studies showing that the solid waste importation ban would lengthen the Hackensack Meadows wetlands' usuable landfill life by only eight months. Also, although the court defined the issue before it in terms of the burden on transportation of solid waste, its ultimate assessment of the commerce burden was cast in terms of the challenging parties' ultimate difficulty of disposing of solid waste in new landfill sites within their own states. Moreover, the court implicitly, though properly, placed the burden of proving less restrictive alternatives on the challengers, even though that procedure is not at all judicially settled.²⁶

Conclusions

One procedural aspect of the case deserves comment.Considering that the sole issue in both the enforcement action against the Landfill Authority and Philadelphia's declaratory judgment action dealt with the constitutionality of the Waste Control Act under the federal Commerce Clause, it is somewhat puzzling why the actions remained in the state courts. The first suit could [6 ELR 10108] have been removed to federal court, and the second, since it was a separate action, brought in federal court, where each party could have requested the convening of a three-judge panel to hear the contitutional claim.²⁷ Direct review could then have been obtained by the Supreme Court.²⁸ This is not to suggest that the New Jersey courts are incapable of handling constitutional controversies, but only that any possible question of bias arising from a state court reviewing its own statutes would be lessened by resort to federal district court.

As solid wastes increase and landfill sites diminish, other states are likely to follow New Jersey example of refusing to serve as their neighbor's garbage pit.²⁹ The decision in Hackensack Meadowlands thus serves to put Congress on notice that there is bound to be more contention than cooperation among the states in solid waste management issues and that, despite recent setbacks in proposed solid waste legislation,³⁰ a strengthened federal role may ultimately be necessary to conquer the garbage mountain.

1. 68 N.J. 451, 348 A.2d 505, 6 ELR 20356 (1975), probable jurisdiction noted, 44 U.S.L.W. 3558 (Apr. 5, 1976).

2. American Can Co. v. Oregon Liquor Control Comm'n, 517 P.2d 691, 4 ELR 20218 (Ore. App. 1973), review denied, id. (Ore. 1974), discussed in Note, American Can: Judicial Response to Oregon's Nonreturnable Container Legislation, 4 Ecology L.Q. 145 (1974). The lower court decision, 2 ELR 20643 (Ore. Cir. Ct. 1972), is discussed in Comment, Oregon's "Bottle Bill "Survives Challenges, Produces Results, 3 ELR 10113 (July 1973). But see, e.g., McClain v. Bd. of Supervisors of Loudoun County, No. 4156 (Va. Cir. Ct., Loudoun County, Feb. 17, 1976) (due process challenge sustained). See generally, Quarles, The Case for the Returnable Beverage Container, 5 ELR 50023 (Feb. 1975).

3. Proctor & Gamble Co. v. City of Chicago, 509 F.2d 69, 5 ELR 20146 (7th Cir. 1975); Soap & Detergent Ass'n v. Clark, 330 F. Supp. 1218, 1 ELR 20423 (S.D. Fla. 1971), But see Soap & Detergent Ass'n v. City of Chicago, 357 F. Supp. 44, 3 ELR 20228 (N.D. Ill. 1973).

4. Portland Pipe Line Corp. v. Environmental Improvement Comm'n, 307 A.2d 1, 3 ELR 20616 (Me. 1973).

5. Maine already has enacted a similar law. Maine Rev. Stat. Ann. tit. 17, § 2253.

6. Council on Environmental Quality, The Sixth Annual Report of the Council on Environmental Quality 91 (1976).

7. 42 U.S.C. §§ 3251-59, ELR 41901.

8. Bryson, Solid Waste and Resource Recovery, in Federal Environmental Law 1290, 1296-98 (E. Dolgin & T. Guilbert, eds. 1974).

9. Solid Waste Management Authorities Law, N.J. Stat. Ann. §§ 40:66A-32 et seq.; Solid Waste Utility Control Act, N.J. Stat. Ann. §§ 48:13A-1 et seq.; Solid Waste Management Act, N.J. Stat. Ann. §§ 13:1E-1 et seq.

10. N.J. Stat. Ann. § 13:1I-10.

11. N.J. Admin. Code § 7:1-4.2; see also id., § 19:7-1.1 (HMDC regulations).

12. Hackensack Meadowlands Dev. Comm'n v. Municipal Sanitary Landfill Authority, 127 N.J. Super. 160 (Ch. Div. 1974). The opinion in City of Philadelphia was issued orally.

13. 397 U.S. 137, 142 (1970).

14. See generally Soper, The Constitutional Framework of Environmental Law in Federal Environmental Law 1, 83-90 (E. Dolgin & T. Guilbert, eds. 1974).

15. 42 U.S.C. § 3251(a)(6), ELR 41901.

16. 42 U.S.C. § 3254, ELR 41903.

17. City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 3 ELR 20393 (1973).

18. Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1 ELR 20451, aff'd mem., 405 U.S. 1035 (1972).

19. See, e.g., Toomer v. Witsell, 334 U.S. 385 (1948).

20. Note, State Environmental Protection Legislation and the Commerce Clause, 87 Harv. L. Rev. 1762, 1775 (1974).

21. Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 (1960). See also Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907).

22. Reed v. Colorado, 187 U.S. 137 (1902) (excluding diseased cattle); Smith v. St. Louis & S.W. Ry., 181 U.S. 248 (1901) (163 day prohibition of importing diseased mules and horses).

23. Palladio, Inc. v. Diamond, 440 F.2d 1319, 1 ELR 20268 (2d Cir.), cert, denied, 404 U.S. 983 (1971), aff'g 321 F. Supp. 630 (S.D.N.Y. 1970), criticized in Note, 85 Harv. L. Rev. 852 (1972).

24. Soper, supra note 14, at 93.

25. Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959) (truck mudflaps); Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761 (1945) (train length).

26. Note, supra note 20, at 1781.

27. 28 U.S.C. 2281.

28. 28 U.S.C. 1253.

29. For a discussion of solid waste conflicts on the county level, see Note, The Limits of County Zoning Power in the Disposal of Solid Waste, 67 Nw. U.L. Rev. (1972)

30. Congressional sponsors have given up on meeting the May 15 deadline for obtaining Fiscal Year 1977 authorizations for solid waste legislation. House of Representatives, Environmental Study Conference, Weekly Bulletin 15 (Apr. 5, 1976).