WASTE, POLLUTION, AND THE CONSTITUTION

The rise of environmental consciousness since the early 1970s has made solid waste disposal through recycling an important issue of public policy. The disposal of solid wastes raises interstate issues as some states find it difficult to use local landfills for their locally generated wastes. Air and water pollution also have important interstate effects, as pollution generated in one state flows into another.

Most regulation of air and water pollution occurs through federal statutes, the Clean Air and Clean Water Acts. These statutes prescribe federal standards and are largely administered by the federal Environmental Protection Agency. State environmental agencies play a role in enforcing them, but only if the state agencies comply with rather detailed federal requirements. Solid waste disposal is regulated under the Resource Recovery and Conservation Act, which prescribes relatively strict federal standards for disposing of hazardous wastes, and less strict ones for disposing of other solid wastes. States receive federal funds to administer plans that comply with the federal requirements.

States have done relatively little to regulate the interstate effects of air and water pollution. Solid wastes are different. Many local landfills are full or nearly so, and local residents frequently do not wish to expand environmentally unattractive landfills. States and cities have therefore adopted regulations to conserve local landfill space. The Supreme Court has considered the constitutionality of such regulations in five cases.

The leading case is philadelphia v. new jersey (1978), invalidating a statute prohibiting the importation of waste generated outside the state. The Court held that the statute expressly discriminated against out-of-state commerce, and was therefore subject to a "virtually per se rule" of invalidity. The state's reason for imposing the ban was simply to conserve a local resource, landfill space. But conservation could be achieved by restricting intakes, no matter what their source. The commerce clause, the Court said, was designed to prohibit states from addressing their problems by insulating themselves from other states. The Court followed this holding in Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department of Natural Resources (1992), invalidating a Michigan statute barring local landfills from accepting waste generated outside the county in which the landfill was located.

The Court also invoked the Philadelphia principle to invalidate Alabama and Oregon statutes that taxed the deposit in local landfills of waste generated elsewhere at a higher rate than locally generated waste, Chemical Waste Management, Inc. v. Hunt (1992); Oregon Waste Systems v. Department of Environmental Quality (1994). The higher fee would discourage out-of-state waste producers from using local landfills, but this was simply another version of the pure conservation goal found insufficient in Philadelphia. Nor did the extra fee compensate the state for any special costs it incurred in accepting out-of-state waste for disposal.

Flow-control ordinances are the most important techniques for dealing with solid wastes. They direct all waste generated in a town to a single recycling facility, and are thought to encourage recycling because expensive recycling facilities require a guaranteed flow of waste to be financially viable, while waste producers prefer to dispose of waste at cheaper, nonrecycling landfills. The Court struck down a flow-control ordinance in C & A Carbone, Inc. v. Clarkstown (1994), finding that it denied out-of-state waste haulers access to locally generated waste. In the wake of Carbone, lower courts have divided over the constitutionality of other flow-control ordinances.

Congress can authorize states to enforce even discriminatory regulations. None of the Court's decisions deals with the question of congressional authorization, but the Court has generally required a rather specific statement by Congress before it will find authorization for discriminatory regulation.

Mark Tushnet
(2000)

Bibliography

Heinzerling, Lisa 1995 The Commercial Constitution. Supreme Court Review 1995:217–276.

Verchick, Robert R. M. 1997 The Commerce Clause, Environmental Justice, and the Interstate Garbage Wars. Southern California Law Review 70:1239–1310.