Jurisdictional Statement — Philadelphia v. New Jersey
Supreme Court brief1977
Ask Donna
What actually matters in this document.
Text
;
—
oY Gaprehe Ooh,
é,
1 FILED
FEB 13 1976
Supreme Court of the United | States. =
October Term, 1975.
No. 75-1150
(Now INTERSTATE WASTE REMOVAL CO., INC,),
o.
STATE OF NEW JERSEY, DEPARTMENT OF
MENTAL PROTECTION OF THE STATE OF NEW
JERSEY and RICHARD J. SULLIVAN, Commissioner of the
Department of Environmental Protection of the State of Now
Appellees.
On Appeal From the Supreme Court of the State of
_ New Jersey.
JURISDICTIONAL STATEMENT.
ARTHUR MEISE «,
Joun R. P Nt beret S
SoLo & Papova, A Professional Corporation,
3rd Floor, Lewis Tower Building, 19 Chancery Lane,
15th and Locust Streets, Trenton, N. J. 08618
Philadelphia, Penna. 19102 (608) 306-5511
dopant Oy of Attorneys for Appellants.
ieternational Printing Co., 711 Go. 60m Ot, Phila., Pe, 10143 — Tet. (216) 727-6711
INDEX.
Page
I ED bg ck emai eect i edie veveucccdeceds 1
I i he hice ins gc detdas cclkviseesic 2
QUESTIONS PRESENTED ........0ccccccccccccccccees 4
STATEMENT OF THE CASE ............0cceseeseeeees 5
THE QUESTIONS ARE SUBSTANTIAL ................ 16
A. Solid and Liquid Waste, and the Process of Collect-
ing, Treating and Disposing of Same, Is a Legitimate
Subject of Interstate Commerce ...............-.- 16
B. P. L. 1973, c. 363, on Its Face, Discriminates Against
and Directly Burdens Interstate Commerce ....... 20
L. Movembemdedeess 5. ccc ccc cccvccccccccccccsces 22
2. Legitimate Local Purpose ...............++0+: 31
3. Effect Upon Interstate Commerce ............. 38
C. Appellants Were Unconstitutionally Denied a Plenary
Hearing on the Merits of Their Claim ............ 41
SEE nti ie nies adnded oeinuseé dee Gnd Canes een 47
CERTIFICATE OF SERVICE ...............ccceeeeeees 49
APPENDIX A-l—Transcript of Oral Opinion of Trial Court Al
APPENDIX A-2—Opinion of Superior Court of New Jersey,
Chancery Division, in Companion Case Hackensack
Meadowlands v. Mun. Landfill Auth., 127 N. J. Super.
Ss | REO TT (Or Ter TT eee Te eT Ete A9
APPENDIX A-3—Hackensack Mead. Dev. Com'n v. Munici-
pal San. L. A., 68 N. J. 451, 348 A. 2d 505 (1975) ..... A27
APPENDIX B—Order of New Jersey Supreme Court Dated
a TI iii Bis dba rk beeskEes Conse cheeses A55
APPENDIX C—Order of Superior Court of New Jersey, Law
Division, Dated December 19, 1975 ................. A56
APPENDIX D-—Notice of Appeal Filed January 9, 1976 ... A58
APPENDIX E-—P. L. 1973, c. 363, Approved January 2, 1974 A61
APPENDIX F—Appellants’ Complaint Filed in Trial Court . A63
INDEX (Continued).
Page
APPENDIX G—Affidavit of Richard Peluso Dated January
OR, FEED on cvncccvennedds seessscttecvetvdaveceaneum A86
APPENDIX H-—Letter Dated December 26, 1973 From
Richard W. DeKorte, Esq., Counsel to Governor Cahill,
Op Rawls Gath, TOO oak cvicccdocecssaseisksebies ens A89
APPENDIX I—Order to Show Cause With Restraints ...... A91
APPENDIX J—Verbatim Copy of N. J. A. C. 7:14 ........ A94
APPENDIX K—Order Granting Interlocutory Injunction ... A98
APPENDIX L—Affidavit of Arsen J. Darnay, Dated January
GB Oe svccdcvcgedancancgdadsuadaobastalscehbulen A100
APPENDIX M—Appellees Answer to Complaint .......... A106
APPENDIX N—Rules of Bureau of Solid Waste Manage-
snout, BF. 5, A, G. THES © GM, on ivscibecctvscouciaces All4
APPENDIX O—Portion of Transcript of Deposition of Lino
F. Pereira Taken on March 13, 1974 .................. A195
APPENDIX P—Motion for Summary Judgment ........... A204
APPENDIX Q—Portion of Brief Filed in Trial Court by Ap-
WEED. oon ccsconavcavedudesepadebed cadpsdtatecatian A206
APPENDIX R—Notice of Appeal Filed by Appellees on April
BE Se cbc dcee os cust snceicdesbinbabeaatiadsl suce A207
APPENDIX S—Motion for Stay of Judgment ............. A209
APPENDIX T—Denial of Motion for Stay of Judgment .... A211
APPENDIX U—Certification of Appeal by New Jersey
Ca CRITE 6 a.n.s0cccccncctconsdditacceecneseetasy A213
APPENDIX V—Order of New Jersey Supreme Court Grant-
ing Stay of Judgment to Appellants on Emergency Basis A215
APPENDIX W—Application for Stay of Judgment and Other
Relief to New Jersey Supreme Court by Appellants .... A217
APPENDIX X—Orders Issued by New Jersey Supreme Court
Pee ee pe A222
APPENDIX Y—Order of Mr. Justice William J. Brennan, Jr. A225
APPENDIX Z—Affidavit of Richard Peluso Dated November
GR, BOW. cc ccncscvicctsecc cadndbacabnedakenimasie. A226
DUD NOUR «on 0c odds theses cdedectddnseemelein. A231
CITATIONS.
Cases: | . Page
Alexandria Scrap Corporation v. Hughes, 391 F. Supp. 46
(MA. 1GTB) occ cccdcdcctvcccccccccincttseresocvess 17
American Can. Co. v. Oregon Liquor Control Commission,
15 Ore. App. 618, 517 P. 2d 691 (Ct. App. Ore. 1973) . .19, 27
Asbell v. Kansas, 209 U. S. 251 (1908) .........--- eee eeeee 18, 29
Baldwin v. G. A. F. Seelig, 294 U. S. 511 (1935) ........... 18, 30
Best & Co. v. Maxwell, 311 U. S. 454 (1940) ............... 23, 24
Bowie Inn, Inc. v. City of Bowie, 274 Md. 230, 335 A. 2d 679
(Ct. App. Md. 1975) ........cceccceeccceeeeeeseeees 19
Bowman v. Chicago &c. Ry. Co., 125 U. S. 465 (1888) ...... 18, 29
Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673 (1930) ....... 3, 46, 47
Clason v. Indiana, 306 U. S. 439 (1939) ...........---45-. 18
Construction Ind. Ass'n, Sonoma Cty. v. City of Petaluma,
522 F. 2d 897 (9th Cir. 1975) ......... cece cece eee eee 27
Crossman v. Lurman, 192 U. S. 189 (1904) ....... aceeetune 18
Dean Milk Co. v. Madison, 340 U. S. 349 (1951) .......... 3, 22
Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907) .... 3%
Grannis v. Ordean, 234 U. S. 385 (1914) .............0005- 46
Hackensack Meadowlands v. Mun. Landfill Auth., 127 N. J.
Super. 160, 316 A. 2d 711 (Ch. 1974) rev. 64 N. J. 451,
348 A. 2d 505 (1975) ........... 2, 12, 18, 22, 27, 28, 29, 40, 41
Head v. New Mexico Board, 374 U. S. 424 (1963) ......... 24
Horn v. Community Refuse Disposal, Inc., 186 Neb. 43, 180
a & . gs B & ppppenh en peer 36
Huron Cement Co. v. Detroit, 362 U. S. 440 (1960) .3, 19, 24, 25, 38
Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67,
SE i; Te Ee CF nhs 04 Rok oe ci di vib eceecsccnevad 41
Las Vegas Merchant Plumbers Ass'n v. United States, 210
F, 2d 732 (9th Cir. 1954) .............005. unbeneh te 17
Mintz v. Baldwin, 289 U. S. 346 (1933) ..............0055- 18
Mullane v. Central Hanover Tr. Co., 339 U. S. 306 (1950) .. 46
Myers v. City of Hagerstown, 214 Md. 312, 135 A. 2d 147
CGR, BI THE on cas coe ceccdcc sendpepenovp obety- 36
Oklahoma v. Kansas Nat. Gas Co., 221 U. S. 229 (1911) ..3, 29, 38
Penna. v. West Virginia, 262 U. S. 553 (1923) ............. 29
Pike v. Bruce Church, Inc., 397 U. S. 137 (1970) ........... 3, 21
CITATIONS (Continued).
Cases (Continued): Page
Plumley v. Massachusetts, 155 U. S. 461 (1894) ........... 18
Portland Pipe Line Corp. v. Environmental Imp. Com’n., 307
A. 2d 1 (Sup. Jud. Ct. Me. 1973) .............0..eees 26, 27
Proctor & Gamble Co. v. City of Chicago, 509 F. 2d 69 (7th
Cir. 1974), Cert. den. 421 U. S. 978 (1975) ........... 19, 27
Railroad Co. v. Husen, 95 U. S. 465 (1877) ............. 3, 23, 24
Reid v. Colorado, 187 U. S. 137 (1902) ..............0005- 32
Rhodes v. Houston, 202 F. Supp. 624 (Neb. 1962), affd 309
F. 2d 959 (8th Cir. 1962), cert. den. 372 U. S. 909 (1963),
SUS GU. &. GUE. CHIR) oc vcsceccsgecusteivecssbunibaues 46
Rocchi v. Zoning Bd. of App. of Town of Glastonbury, 157
Conn. 106, 248 A. 2d 922 (Sup. Ct. 1968) ............ 36
Savage v. Jones, 225 U. S. 501 (1912) .................... 18, 19
Sligh v. Kirkwood, 237 U. S. 52 (1915) ...............405. 18
Smith v. St. Louis and Southwestern Ry. Co., 181 U. S. 248
CHEER) ov cccvccccccsesececeguaguatede segues aawunne 32
United States v. Bishop Processing Company, 287 F. Supp.
GBG (ROE. SRM) oo cccncesssccctuacevenisksatesuaneel 19, 38
U. S. v. Frankfort Distilleries, 324 U. S. 293 (1945) ........ 17
United States v. Pennsylvania Refuse Removal Ass'n, 242 F.
Supp. 794 (E. D. Pa. 1965), affd 357 F. 2d 806 (3rd Cir.
1966), cert. den. 384 U. S. 961 (1966) ................ 16, 17
U. S. v. Underwriters Ass’n, 322 U. S. 533 (1944) .......... 17
Wood v. Town of Wilton, 156 Conn. 304, 240 A. 2d 904 (Sup.
Ge. SEED) . oc cccoccussvéccskcannctesatancaneee 36
Statutes:
Federal:
SG. OG, OB. ..ccccscscoscesetdcesasaubenseneee 16
U.S. G GREED occcccccccdicdechcckiueeel 2,3
BU. B.C. GRIUIEDD «. 6ccscccdccoonccccanae 2,3
@ GU. BG: GEE cc cccicccecoccocdescunwen sauna 39
@ GU. SG GERARD cccvconccoucededucneasee 39
@ GU. &. G SHS ccecccesecccsceeccnsneaeneaee 39
Pak B. GG 0 cc cccvcscesecesoceseeetuanee 39
DU, Ee. GEGEED 0 cvcccccesenescessenaneanneeee 39
CITATIONS (Continued).
Page
State:
BO. J. B A, WBE 2. cc cccccccccvcccccccccccccccees 14,33
NN. J. GS. A, USTED 2... nc ccccccccccccccccccceee 2, 4, 34, 35
on os cosa censeneceace 1, et seq
Constitutional Provisions:
U. S. Const.:
i Pe EM Th. occccccacecssceseccecess 10, 11, 12, 17
os a. cow apedcosececse 48
TE a 20
Fourteenth Amendment ........... 6.6... c ess eee neues 46
Administrative Regulations:
CE oi. enesnestees 6, 8, 35, 37
| SRE aa so diaiaaiabenlan 7,34
EEE i 9, 32, 35
EE 34
EE ee ee ee 18, 33
ee sis Loi cides bbactbesnones 33
casi cninicwecn cvbeescti 33
ES a RE 31
i i es snk acim serene 37
RE SA a 33
EE 37
SE 37
BE, B, A GS, Te GS occ ccccccccccccccccccccsccccccccess 3l
SE 37
ET 35
ee isa buipdivi aces 33
Other Authorities:
1965 U. S. Code, Cong. and Adm. News, p. 3614 ........... 39
1970 U. S. Code, Cong. and Adm. News, p. 4553 ........... 39, 40
Annotation, “Public Dump as Nuisance", 52 ALR2¢d 116M... BB
Supreme Court of the United States
Ocroser Term, 1975.
No.
CITY OF PHILADELPHIA, CITY OF GLEN COVE,
LANDFILL AND DEVELOPMENT COMPANY,
MAC SANITARY LANDFILL, INC., KINSLEY’S
LANDFILL, INC. anp DELORENZO-INTERSTATE
WASTE REMOVAL CO., INC. (Now INTERSTATE
WASTE REMOVAL CO., INC.),
Appellants,
STATE OF NEW JERSEY, DEPARTMENT OF EN-
VIRONMENTAL PROTECTION OF THE STATE
OF NEW JERSEY anv RICHARD J. SULLIVAN,
COMMISSIONER OF THE DEPARTMENT OF ENVIRON-
MENTAL PROTECTION OF THE STATE OF NEW JERSEY,
Appellees.
On APPEAL FROM THE SUPREME COURT OF THE
STaTE OF NEw JERSEY.
JURISDICTIONAL STATEMENT.
OPINIONS BELOW.
The opinion of the Superior Court of New Jersey, Law
Division, declaring P. L. 1973, c. 363 (N. J. S. A. 13:11-9,
2 Jurisdictional Statement
10) unconstitutional is not reported. The opinion of the
Superior Court of New Jersey, Chancery Division, in the
companion case Hackensack Meadowlands v. Mun. Land-
fill Auth. is reported in the official reports at 127 N. J.
Super. 160 (Ch. 1974), and in the unofficial reports at 316
A. 2d 711. The opinion of the New Jersey Supreme Court,
reversing the trial court’s decisions in each of the aforesaid
eases, is published in the official reports as Hackensack
Meadowlands v. Mun. Landfill Auth., 68 N. J. 451 (1975),
and in the unofficial reports as Hackensack Mead. Dev.
Com’n v. Municipal L. A., 348 A. 2d 505 (N. J. Sup. Ct.
1975). Said opinion is cited as Hackensack Meadowlands
v. Mun. Landfill Auth., — N. J. — (1975) in the within
Jurisdictional Statement. Copies of all of the aforesaid
opinions are collected in Appendices A-1, A-2 and A-3.
JURISDICTION.
This matter is brought pursuant to 28 U. S. C.
§ 1257(2) and in the alternative, 28 U. S. C. § 1257(3) to
set aside the judgment of the New Jersey Supreme Court
which upheld the constitutionality of P. L. 1973, c. 363.
Said judgment was rendered on November 18, 1975, and
entered on the same date. Thereafter, on December 11,
1975, the New Jersey Supreme Court remanded the matter
to the Superior Court, Law Division, “for such further
proceedings, if any, that that Court may deem appropriate
_ . .” (Appendix B, A55 infra). On December 19, 1975,
the New Jersey Superior Court, Law Division, issued its
order stating, in pertinent part, that“. . . no further pro-
ceedings are deemed appropriate by this Court . . .”
(Appendix C, A57 infra). A notice of appeal to the
Supreme Court of the United States was thereafter filed in
the New Jersey Supreme Court on January 9, 1976 (Ap-
pendix D, A58 infra). The jurisdiction of the Supreme
Court of the United States to review this suit (a) by direct
Jurisdictional Statement 3
appeal is conferred by Title 28, United States Code, Sec-
tion 1257(2), and alternatively (b) by certiorari is con-
ferred by Title 28, United States Code, Section 1257(3).
Appellants believe the following cases sustain the juris-
diction of the Supreme Court of the United States to review
the judgment of the New Jersey Supreme Court in this
case:
Pike ». Bruce Church, Inc., 397 U. S. 137 (1970);
Huron Cement Co. v. Detroit, 362 U. S. 440
(1960); :
Dean Milk Co. v. Madison, 340 U. S. 349 (1951);
Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673
(1930);
Oklahoma v. Kansas Nat. Gas Co., 221 U. S. 229
(1911); '
Railroad Co. v. Husen, 95 U. S. 465 (1877).
The text of P. L. 1973, c. 363, the constitutional valid-
ity of which is involved in the present suit, reads as follows:
“The legislature finds and determines that since
the enactment of P. L. 1973, c. 39 (C 13:1I-l
et seq.) the volume of solid and liquid waste
continues to rapidly increase, that the treatment
and disposal of these wastes continues to pose an
even greater threat to the quality of the environ-
ment of New Jersey, that the available and ap-
propriate land fill sites within the State are being
diminished, that the environment continues to be
threatened by the treatment and disposal of waste
which originated or was collected outside the
State, and that the public, health, safety and wel-
fare require that the treatment and disposal
within this State of all wastes generated outside
of the State be prohibited.
4 Jurisdictional Statement
No person shall bring into this State any solid
or liquid waste which originated or was collected
outside the territorial limits of the State, except
garbage to be fed to swine in the State of New
Jersey, until the commissioner shall determine
that such action can be permitted without en-
dangering the public health, safety and welfare
and has promulgated regulations permitting and
regulating the treatment and disposal of such
waste in this State. Any person violating this
provision shall be subject to the penalty and en-
forcement provisions of the “Waste Control Act,’
P. L. 1973, c. 39."
Said statute is published in the pocket part of Title 13,
New Jersey Statutes Annotated, Section 11-9 and 11-10 at
pp. 85-86.
QUESTIONS PRESENTED.
1. Is solid and liquid waste, or the process of collect-
ing, treating and disposing of same, a legitimate subject of
interstate commerce?
2. Does a state statute which prohibits the entry into
the state of any solid or liquid waste (except garbage to be
fed to swine in the state ) ccllected in another state, discrim-
inate against or place an undue burden upon interstate
commerce?
3. In reversing an order granting a motion for sum-
mary judgment, may an appellate court constitutionally
decide the case on its merits without offering the moving
parties an opportunity to be heard, prior to the final deter-
mination, on the material issues of fact raised by their
complaint?
Jurisdictional Statement 5
STATEMENT OF THE CASE.
On January 2, 1974, P. L. 1973, c. 363, being
“An Act to prohibit any person from bringing
into this State any solid and liquid waste which
originated or was collected outside the State
was approved by the Governor of the State of New Jersey,
to become effective on February 1, 1974 (Appendix E,
A61 infra).
On January 21, 1974, appellants filed a complaint
attacking the constitutionality of said statute on federal
and state constitutional grounds (Appendix F, A63 infra).
Their simultaneous application for a temporary restraining
order was supported by an affidavit of a licensed profes-
sional engineer (Appendix G, A86 infra) which averred
that the transportation, treatment or disposal of solid waste
in New Jersey in accordance with applicable Federal and
New Jersey state and administrative laws, rules and regula-
tions would not pose a threat to the health, welfare and
safety of the residents of said state:
“3. The transportation in New Jersey of solid
waste in accordance with the terms and provi-
sions of applicable Federal and New Jersey state
and administrative laws, rules and regulations is
not hazardous to the public health and does not
constitute a threat to the health, welfare or safety
of the residents of the State of New Jersey.
4. The treatment and disposal in New Jersey of
domestic or foreign solid waste in accordance
with the terms and provisions of applicable Fed-
eral and New Jersey state and administrative
laws, rules and regulations is not hazardous to
6 Jurisdictional Statement
the public health and does not constitute a threat
to the health, welfare or safety of the residents of
the State of New Jersey.” '
It was further supported by a copy of a letter dated De-
cember 26, 1973 from Richard W. DeKorte, Esq., Counsel
to Governor William T. Cahill, to David Quient, Esq., city
attorney of appellant City of Glen Cove (Appendix H,
A89 infra), in which the Counsel to the Governor stated:
“Also, I might add that Senate Bill No. 2367
(OCR) [P. L. 1973, c. 363] would not have been
introduced had the sister states of New Jersey
permitted solid wastes originating in their states
to be disposed of at or near the point of orig-
ination.”
Based upon the aforesaid documents, and additional affi-
davits which documented that immediate and irreparable
harm would be suffered by appellants if temporary injunc-
tive relief was not granted, the Superior Court of New
Jersey, Law Division issued an Order to Show Cause with
Temporary Restraints on January 21, 1974, which, inter
alia, restrained the State from enforcing the provisions of
P. L. 1973, c. 363 (Appendix I, A91 infra). On the return
date of the Order to Show Cause, February 1, 1974, the
trial court issued an interlocutory injunction continuing
the restraints theretofore issued, and further specifically
enjoining the enforcement of N. J. A. C. 7:1-4, until its
further order” (Appendix K, A98 infra). In granting
1. The conclusions expressed in said paragraphs 3 and 4 have
never been attacked or rebutted. Quite the contrary, they have
been supported by appellees. See p. 9 infra.
2. N. J. A. C. 7:1-4, a rule governing the importation of solid
and liquid waste from outside New Jersey, was adopted by the
Commissioner of the New Jersey Department of Environmental
Jurisdictional Statement 7
interlocutory injunctive relief, the trial court considered
among others, an affidavit of the Deputy Assistant Admin-
istrator for Solid Waste Management Programs, United
States Environmental Protection Agency (Appendix L,
A100 infra), which averred, in pertinent part, as follows:
“It has not been established to the satisfaction
of EPA that the continuation of disposal, in an
environmentally sound manner, of solid waste
generated outside New Jersey poses any greater
immediate health threat to its citizens than the
2. (Cont’d.)
Protection on ee to authority conferred by
, rule, wes 2¢ as an emergency
measure to become effective February 1, 1974, provides, in perti-
nent part, as follows:
N. J. A. C. 7:1-42
rials;
4) Pesticides, hazardous chemical waste, bulk
ig Ea en
Jurisdictional Statement
continued disposal of domestically generated
solid waste. Therefore, there appears to be no
immediate health threat to justify the precipitious
passage and implementation of this statute
[P. L. 1973, c. 363] and these regulations.
[N. J. A. C. 7:14]
. a State importation ban such as that enacted
by New Jersey is in conflict with the national
policy set forth in Section 206 of the Solid Waste
Disposal Act. . . . Moreover, the continuation
of such a restriction would establish an unfavor-
able precedent which, if followed by a substan-
tial number of other States, would render re-
gional and interstate solutions to solid waste
disposal problems impossible to attain.
°/
The foregoing is not to say that appropriate
standards should not be applied in the areas of
treatment and disposal of solid wastes and of
land use planning. We strongly favor the adop-
tion of standards applicable to domestic and
imported solid wastes so that they apply on an
equal basis with out-of-state waste subject to
the same statutory and regulatory treatment as
domestic waste.
. A single thrust to ban out-of-state wastes
impedes rather than enhances environmental
quality.
In conclusion, it is EPA policy that no munici-
pality or State should take action to prevent the
free flow of waste across municipal or state
Jurisdictional Statement g
boundaries provided the transport, processing,
and disposition of the waste is in accordance
with the provisions of applicable federal and
state environmental and land use laws, guide-
lines, regulations, and recognized engineering
practices.”
A plenary hearing on the merits of appellants’ complaint
was scheduled by the Court for March 25, 1974.
On February 11, 1974, John P. Fazzio, Inc., t/a John
P. Fazzio Landfill Co. and Continental Vanguard, Inc.
were granted leave to intervene.
Thereafter on February 13, 1974, appellees filed their
answer to the complaint in this matter, wherein they spe-
cifically admitted that the principal concern of the New
Jersey Legislature in adopting P. L. 1973, c. 363 was to
preserve landfill acres in New Jersey for solid waste gen-
erated in said State. They further admitted that there
is no qualitative difference between the solid waste which
originates or is collected outside the State of New Jersey
and that which originates or is collected within the State,
and there is no difference with respect to the disposal of
same (Appendix M, A106 infra).
On March 13, 1974, appellants deposed the Principal
Environmental Engineer of the Bureau of Solid Waste
Management, New Jersey Department of Environmental
Protection. During the course of said deposition, the
engineer admitted that the proposed Rules of the Bureau
of Solid Waste Management, N. J. A. C. 7:26-1 et seq.
(effective July 1, 1974) (Appendix N, A114 infra), were
entirely adequate to protect the health, safety and welfare
of the people of the State of New Jersey and the quality of
its environment.’ He also revealed that no effort had been
3. Said rules
"lid and liqud waste dapenl fac om
ticular attention was Gres cnilog ples wick
Sod scooluler Ween soastianell ade Game (a) dust, (b)
10 Jurisdictional Statement
made by the Department of Environmental Protection to
calculate the total acreage available for sanitary landfill
purposes in the State of New Jersey or to identify the
location and availability of facilities which presently exist
or may hereafter be developed outside the State of New
Jersey (Appendix O, A195 infra).
Appellants thereafter moved for summary judgment
yn two federal constitutional grounds which, in their
opinion, raised solely questions of law: (a) P. L. 1973,
c. 363, on its face, discriminates against interstate com-
merce in violation of Art. 1, Sec. 8, cl. 3 of the Consti-
tution of the United States, and (b) the Congress of the
United States has preempted the narrow field preventing
the adoption of laws, ordinances and regulations which
prohibit the interstate movement of solid waste for pur-
poses of treatment or disposal (Appendix P, A204 infra).
Appellees cross-moved for summary judgment on the same
issues, and urged in a portion of their brief filed with the
trial court (Appendix Q, A206 infra), that summary judg-
ment not be granted to appellants pending a hearing on
the merits:
“At this stage of the litigation sub judice the
Court has not had an opportunity to consider any
of the relevant facts and circumstances except
for affidavits submitted in favor of and in opposi-
tion to the issuance of ad interim restraints.
Among those proofs which the court must con-
sider are: the nature and extent of the dangers
to the health, safety, welfare and environment of
3. (Cont'd. )
odor, (c) fire, (d) insects, (e) rodents, (f) scattering of pa and
other lightweight materials, (g) gas generation, (h) cules and
ground water quality, (i) collection and haulage, (j) open burning,
and other related problerns.
Jurisdictional Statement 11
New Jersey presented by the disposal of wastes
tue tein, Aciass haan ike wd
waste crisis in New Jersey; the rapid exhaustion
of landfill life in New Jersey; the volume of out-
of-state waste being disposed of in New Jersey;
the severe limiting effects on the future develop-
ment of property which has been used for sani-
tary landfill purposes; the extent of the effect on
interstate commerce.”
Pending a determination of the motions, the hearing date
was rescheduled to April 15, 1974, if necessary.
On March 25, 1974, the trial court heard oral argu-
ment on the cross-motions for ew are <0
delivered its opinion (Appendix A-l, gran
summary judgment to appellants and striking down P. L.
1973, c. 363 on the ground that same discriminated against
interstate commerce in violation of Art. 1, Sec. 8, cl. 3 of
the Constitution of the United States:
“.. . I find that the statute in question here is
attempting to control material that is properly
the subject of interstate commerce, that the
method of attempting is discriminatory and,
therefore, unconstitutional.”
On April 23, 1974, appellees filed a notice of appeal (Ap-
ere R, A207 infra), by which they appealed from the
trial court’s grant of summary judgment to appellants.
More than 4 months later, on July 26, 1974, appellees
moved before the Superior Court of New Jersey, Appellate
Division, for a stay of judgment (Appendix S, A209 infra).
Said motion was denied by the Court on August 14, 1974
A dix T, A211 infra).
Following the submission of briefs by all parties, and
prior to argument in the Appellate Division, the appeal
12 Jurisdictional Statement
was certified directly to the New Jersey Supreme Court
and consolidated with Hackensack Meadowlands v. Mun.
Landfill Auth.‘ by order dated October 7, 1974 (Appendix
U, A213 infra). The consolidated cases were argued before
the New Jersey Supreme Court on December 2, 1974.
Almost one year later, on November 18, 1975, the
New Jersey Supreme Court reversed the judgment of the
trial court on the merits, and vacated the injunctive order
which had been in effect since the inception of the litiga-
tion. Although the Court agreed that certain solid and
liquid waste is merchantable and that the transportation
and disposal of solid and liquid waste represents a legiti-
mate subject of interstate commerce, Hackensack Meadow-
lands v. Mun. Landfill Auth., 68 N. J., supra at 466-469,
it nevertheless upheld the constitutionality of P. L. 1973, c.
363 on the grounds that same represented a reasonable
exercise of the State’s police power and did not place an
undue burden upon or discriminate against interstate com-
merce in violation of Art. 1, Sec. 8, cl. 3 of the Constitu-
tion of the United States. It also concluded that Congress
did not preempt the field of solid waste disposal ( Appen-
dix A-3, A27 et seq., infra).
By its ruling, the New Jersey Supreme Court adopted a
novel and unprecedented procedural approach: it dis-
posed, on its merits, of a case involving substantial dis-
puted issues of material fact which had never been heard
4. In Hackensack Meadowlands, suit was brought by the
Hackensack Meadowlands Development Commission and the De-
snftary Landélll Authority from scouting for disposal in its land:
ani uthority r in its -
fill site” located within the Hackensack Meadowlinds District any
Se od Now foe ting Sem cx cokenet sauaee Se Sees
imits ew Jersey. uperior Court, Chancery Division,
that the exclusion of out-of-state solid waste from deposit in landfill
sites within the state was unconstitutional as representing a dis-
crimination against interstate commerce.
Jurisdictional Statement
13
by the trial court.’ Since a hearing was not held, there
was no testimony from which to make findings of fact
with respect to either (a) the legitimacy of the exercise
of the State’s police power and the nature and degree
of the burden imposed upon interstate commerce, or (b)
the case was decided, the New Jersey Supreme Court
granted appellants emergent motion for a stay of judgment
and interim injunctive relief pending its further order
5. The trial court granted, as a matter of law, appellants’
motion for summary poe be Cho eabedenes Senmns Sete
The only facts to the trial court were contained in affi-
pee ee & oan cagsaien to Re inreense of Stein ie
junctive relief, and these vits, with one exception, were not
OS Se renee seen 0 Se Dew Paty Sse Coat ot
time it the case. There was no reason to present said
Se ee cee Loncane eat Base Sale Ruapete wes
solely to support an for interim injunctive and not
to prove a case issues of material fact. Based
upon the Rules of Court, understood that the case would
be remanded for a on the merits if an appellate court re-
14 Jurisdictional Statement
On December 11, 1975, the New Jersey Supreme
Court denied appellants’ motion for a stay, vacated the
emergency stay that it had previously issued, effective
December 31, 1975, and further
“Orperep that the motion for a remand to the
Superior Court, Law Division, for such further
proceedings, if any, that that court may deem
appropriate is granted; provided, however, that
any relief granted by the Law Division shall not
include the issuance or continuation of a stay;
and it is further
Orverep that this Court does not retain juris-
diction.”
(Appendix X, A224 infra).
Based upon this order, appellants and intervenors
were compelled, as a practical matter, to dismiss with
prejudice every count in their respective complaints which
had not been specifically resolved by the New Jersey
Supreme Court in its decision of November 18, 1975, so
that there would unquestionably be a final judgment from
which a direct appeal could be taken to the Supreme
Court of the United States. In the order pursuant to
which the unresolved issues raised by appellants and
intervenors complaints were dismissed (Appendix C, A56,
infra), the trial court
“FurtHEerR Orvenren, that, in light of the dismissal
of.the above counts, and the decision by the
New Jersey Supreme Court upholding the con-
stitutionality of P. L. 1973, c. 363 as representing
a valid exercise of the State’s police power which
does not unreasonably burden interstate com-
merce and said Court thereby having finally
determined Counts I, VII and XIX of plaintiffs’
Jurisdictional Statement 15
complaint and Count One of foe naga
venors complaint, no further
Ancnadsl enipanlite Uptily Chae te eceneetion
with the above captioned matter.”
On December 22, 1975, appellants filed an applica-
tion for a stay of judgment with Mr. Justice Brennan.
Said application was granted on December 31, 1975
(Appendix Y, A225 infra).
16 Jurisdictional Statement
THE QUESTIONS ARE SUBSTANTIAL.
A. Solid and Liquid Waste, and the Process of Collecting,
Treating and Disposing of Same, Is a Legitimate
Subject of Interstate Commerce.
Solid and liquid waste disposal presents questions
that are national in scope and consequence.’ It is now
established that the disposal in one state of solid waste
collected in another state constitutes an activity in inter-
state commerce.
In United States v. Pennsylvania Refuse Removal
Assn., 242 F. Supp. 794 (E. D. Pa. 1965), certain defend-
ants were indicted and convicted for price fixing, allo-
cating customers and rigging bids in connection with a
refuse removal business in the Greater Philadelphia area
in violation of the Sherman Anti-Trust Act. That Act —
provides, in pertinent part, “Every . . . conspiracy, in
restraint of trade or commerce among the several states,
... is declared to be illegal.” 15 U. S. C. $1.
The Court held that the disposal in New Jersey of
substantial quantities of refuse collected in Pennsylvania
constituted an activity within the flow of interstate com-
merce. In responding to defendants’ argument that a
worthless commodity like trash cannot be the subject of
“trade or commerce” as those terms are used in the
Sherman Act, the Court observed:
“That argument misses the point. Here, the real
subject of “trade or commerce” was not worthless
debris, but the valuable service of removing and
disposing of it. Since services are encompassed
within the meaning of the words “trade or com-
merce” as used in the Act, United States v. Nat'l
Ass'n of Real Estate Boards, 339 U. S. 485, 488-
6. See pp. 38-41 infra.
Jurisdictional Statement 17
492, 70 S. Ct. 711, 94 L. Ed. 1007 (1950), the
defendants position has no merit.”
United States v. Pennsylvania Refuse Ass'n.,
242 F. Supp., supra, at 700. (Emphasis
added ).
The decision of the Federal District Court was
affirmed by the Court of Appeals for the Third Circuit
which succinctly stated: “. . . refuse transported from
Pennsylvania to New Jersey and disposed of in the latter
state . . . was plainly a proper subject of interstate com-
merce.” United States v. Pennsylvania Refuse Removal
Ass'n., 357 F. 2d 806, 808 (3rd Cir. 1966). Certiorari
was denied by this Court, 384 U. S. 961 (1966).
Congress exercised its full power over interstate com-
merce in the Sherman Act, U. S. v. Frankfort Distilleries,
324 U. S. 293, 298 (1945), U. S. ». Underwriters Ass'n.,
322 U. S. 533, 558 (1844), Las Vegas Merchant Plumbers
Ass'n. 0. United States, 210 F. 2d 732, 739 (9th Cir. 1954).
Therefore, if solid waste collection and disposal services
in the flow of interstate commerce are viewed as trade or
commerce for purposes of the Sherman Act, they also must
constitute commerce within the meaning of the commerce
clause, U. S. Const. Art. 1, Sec. 8, cl. 3.
While it is clear that the valuable service of remov-
ing and disposing of solid waste is an activity in interstate
commerce, it is also clear that solid waste itself is often
a merchantable commodity. For example, a United States
District Court has recently held that the movement of
automobile hulks across state lines constitutes interstate
commerce. Alexandria Scrap Corporation vo. Hughes, 391
F. Supp. 46, 59 (Md. 1975). Auto bodies are
included within the definition “bulky waste” in the Rules
of the Bureau of Solid Waste Management. N. J. A. C.
18 Jurisdictional Statement
7:26-1.4.3. More importantly, in Hackensack Meadow-
lands ». Mun. Landfill Auth., 127 N. J. Super. 160, 170
(Ch. 1974), rev. other grnds. 68 N. J. 451 (1975), the
companion case to the within matter, Judge (now Justice )
Schreiber rejected appellees argument that solid and liquid
waste is neither merchantable nor a legitimate subject of
interstate commerce: “. . . refuse may be utilized for con-
struction, landfill, recycling of paper, bottles and metal and
production of electricity.” Solid waste often represents a
cost efficient and environmentally sound method to recover
severely mined or devastated lands, to produce gas for
commercial purposes, and to create power generation by
incineration (Appendix Z, A228-29, A230 infra).
This Court has frequently held that, in the absence of
controlling tederal legislation or implied federal preemp-
tion, a state may exercise its police power to prevent decep-
tion or fraud upon the public, Plumley vo. Massachusetts,
155 U. S. 461 (1894), the prompt disposal of large animals
not slaughtered for food, Clason v. Indiana, 306 U.S. 439
(1939), and the importation of unhealthy swine or cattle,
Asbell v. Kansas, 209 U. S. 251 (1908); Mintz v. Baldwin,
289 U. S. 346 (1933), decayed or noxious foods, Crossman
v. Lurman, 192 U. S. 189 (1904); Savage v. Jones, 225 U. S.
501 (1912), or immature citrus fruits, Sligh v. Kirkwood,
237 U.S. 52 (1915).
The evident purpose of such regulations is to prevent
the spread of contagion or disease, to protect an unsuspect-
ing purchaser from acquiring food which is unfit for human
consumption and to prohibit deceptive and fraudulent
practices. Bowman v. Chicago &c. Ry. Co., 125 U. S. 465,
489 (1888); Sligh v. Kirkwood, 237 U. S. 52, 59-60 (1915);
Baldwin v. G. A. F. Seelig, 294 U. S. 511, 525 (1935).
However, even in these cases, the particular regulation
must be reasonable in its requirements and promote its
objective without discrimination:
Jurisdictional Statement 19
“The evident purpose of the statute is to prevent
fraud and imposition in the sale of food for
domestic animals,—a matter of great importance
to the people of the state. Its requirements were
directed to that end, and they were not unreason-
able. It was not aimed at interstate commerce,
but, without discrimination, sought to promote
fair dealing in the described articles of food.”
Savage v. Jones, 225 U. S., supra, at 525.
Appellees have never contended that either (a) the
transportation, treatment or disposal of solid or liquid
waste in accordance with applicable federal and state laws
and regulations poses any material threat to the health,
welfare and safety of the people of New Jersey or to the
quality of its environment; or (b) an unsuspecting public
will be deceived or defrauded by the transportation, treat-
ment or disposal of solid or liquid waste collected in an-
‘other state. The aforesaid line of cases does not properly
relate to the matter sub judice. If it did, then state or
municipal governments, according to appellees’ argument
below, could adopt with impunity codes to prevent air,
water or land pollution which directly discriminate
against interstate commerce; a practice which has been un-
mistakably rejected by this and other Courts. Savage v.
Jones, 225 U. S., supra, at 525; Huron Cement Co. v.
Detroit, 362 U. S. 440 (1960); Proctor & Gamble Co. v.
City of Chicago, 509 F. 2d 69 (7th Cir. 1974), cert. den.
421 U. S. 978 (1975); American Can Co. v. Oregon Liquor
Control Commission, 15 Ore. App. 618, 517 P. 2d 691 (Ct.
App. Ore. 1973); Bowie Inn, Inc. v. City of Bowie, 274
Md. 230, 335 A. 2d 679, 688 (Ct. App. Md. 1975). Even
the movement of air pollutants across a state line has been
held to constitute interstate commerce, United States v.
Bishop Processing Company, 287 F. Supp. 624 (Md. 1968).
20 Jurisdictional Statement
The interstate transportation of solid and liquid waste
for treatment and disposal certainly represents a legitimate,
indeed a necessary and vital activity in interstate com-
merce.
B. P. L. 1973, c. 363, on Its Face Discriminates Against
and Directly Burdens Interstate Commerce.
The plain and unambiguous language of P. L. 1973,
c. 363, entitled
“An Act to prohibit any person from bringing
into this State any solid and liquid waste which
originated or was collected outside the State
reveals that its sole intent and purpose is to impose an
immediate, absolute, and complete ban upon the move-
ment into or through New Jersey of any solid or liquid
waste which originated or was collected outside the State.
Treatment of liquid waste, processing of solid waste, and
disposal or interstate movement of all waste collected out-
side New Jersey is equally prohibited. Conversely, no
attempt whatsoever has been made in the statute to con-
trol, regulate or prohibit the movement, treatment, proc-
essing or disposal of solid or liquid waste which originates
or is collected within the State of New Jersey.
Activities in interstate commerce are not by that fact
alone immune from reasonable regulations adopted by a
state or local government pursuant to the exercise of its
reserved police power. U. S. Const., Amend. 10. Absent
controlling federal legislation, the commerce clause does
not deprive the states of the power to regulate matters of
local public concern in those areas where uniformity of
regulation is not necessary, as long as the exercise of the
police power serves a real and legitimate purpose and does
Jurisdictional Statement 21
not place an undue or excessive burden on or discriminate
against interstate commerce.
The test has been stated most recently by this Court
in Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970):
“Although the criteria for determining the valid-
ity of state statutes affecting interstate commerce
have been variously stated, the general rule that
emerges can be phrased as follows:
Where the statute regulates evenhandedly
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. Huron
Cement Co. v. Detroit, 362 U. S. 440, 443. Ifa
legitimate local purpose is found, then the ques-
tion 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 in-
volved, and on whether it could be promoted as
well with a lesser impact on interstate activities.
Occasionally, the Court has candidly undertaken
a balancing approach in resolving these issues.
Southern Pacific Co. v. Arizona, 325 U. S. 761,
but more frequently it has spoken in terms of
‘direct’ and ‘indirect’ effects and burdens. See
e.g. Schafer v. Farmers Grain Co., supra.” (em-
phasis added )
Pursuant to the test announced in Pike, a balance will
not be made between the burden imposed on interstate
commerce, on the one hand, and the putative local benefits,
on the other hand, unless the regulation (a) is evenhanded,
(b) is based upon a legitimate local purpose, and (c) only
22 Jurisdictional Statement
incidentally effects interstate commerce. If it is defective
on any of these grounds, then the regulation must fall.
1. Evenhandedness.
A prohibition directed solely against solid or liquid
waste which originates or is collected outside the State,
and against the movement of such waste through New
Jersey, is not evenhanded, and constitutes a discriminatory
regulation of interstate commerce.
In the single paragraph of its opinion devoted to the
discrimination issue, the New Jersey Supreme Court com-
mented:
“Nor has there been discrimination, at least in
the economic sense. In examining this point we
must look to the ends sought to be achieved.
Here the purpose of the legislation is to protect
the inhabitants and vital resources of New Jersey,
not to impose economic barriers or create com-
mercial restrictions. Nor is there any real or
significant discrimination in favor of local col-
lectors. Refuse amassed by them outside the
State may not be brought into New Jersey. Con-
versely, residents of other states are free to collect
and dump within the state.”
Hackensack Meadowlands v. Mun. Landfill
Auth., 68 N. J., supra, at 475.
In Dean Milk Co. v. Madison, 340 U. S. 349, 354
(1951), this Court struck down an ordinance of the City
of Madison, Wisconsin, which prohibited the sale of milk
as pasteurized unless it was processed and bottled at an
approved pasteurization plant within a five mile radius
from the central square of Madison. In response to Mad-
ison’s argument that the ordinance was aimed simply at
Jurisdictional Statement 23
protecting the health of the community, Mr. Justice Clark
wisely noted that to sustain an ordinance simply because it
denominates itself
“. . . a health measure, would mean that the
Commerce Clause of itself imposes no limitations
on state action other than those laid down by the
Due Process Clause, save for the rare instance,
where a state artlessly discloses an avowed pur-
pose to discriminate against interstate goods.”
The Court's responsibility in this area has been empha-
sized by Mr. Justice Reed in Best & Co. v. Maxwell, 311
U. S. 454, 455-456 (1940) where he commented:
“The commerce clause forbids discrimination,
whether forthright or ingenious. In each case it
is our duty to determine whether the statute
under attack, whatever its name may be, will in
its practical operation work discrimination against
interstate commerce.”
This responsibility has been undertaken conscien-
tiously and with great care by the Court. In Railroad Co.
v. Husen, 95 U. S. 465 (1877), the United States Supreme
Court struck down a Missouri statute which prohibited the
entry of Texas, Mexican or Indian cattle into any county in
the State between the first day of March and the first day
of December of each year. Commenting on the statute,
the Court declared:
“It is not a quarantine law. It is not an inspec-
tion law. It says to all natural persons and to all
transportation companies, ‘You shall not bring
into the State any Texas cattle or any Mexican
cattle or Indian cattle, between March 1 and De-
cember 1 in any year, no matter whether they are
free from disease or not, no matter whether they
24 Jurisdictional Statement
may do an injury to the inhabitants of the State
or not; and if you do bring them in even for the
purpose of carrying them through the State with-
out unloading them, you shall be subject to
extraordinary liabilities. Such a statute, we do
not doubt, it is beyond the power of a State to
enact. To hold otherwise would be to ignore one
of the leading objects which the Constitution of
the United States was designed to secure.”
Railroad Co. v. Husen, 95 U. S., supra, at 473.
As in the Railroad Co. case, P. L. 1973, c. 363 is nei-
ther a quarantine law nor an inspection law; and like the
statute in that case, P. L. 1973, c. 363 says to all natural
persons and to all transportation companies: “You shall
not bring into the State solid or liquid waste of any nature
or description, for any purpose whatsoever, no matter
whether it does an injury to the inhabitants of the State
or not; no matter whether it does an injury to the quality
of the environment or not; and if you do bring it in even
for the purpose of carrying it through the State without
unloading it you shall be subject to extraordinary liabili-
ties.”
The fact that Railroad Co. v. Husen dealt with cattle
and not with solid waste is neither material nor distinguish-
able. The principle is identical in each case; once an ac-
tivity is legitimately in interstate commerce there can be
no discrimination. See also Best & Co. v. Maxwell, 311
U. S. 454 (1940); Head v. New Mexico Board, 374 U. S.
424, 429 (1963).
In the leading environmental case, Huron Cement Co.
v. Detroit, 362 U. S. 440, 448 (1960), an action was insti-
tuted by a corporation engaged in operating federally li-
censed steain vessels in interstate commerce to enjoin the
enforcement of certain provisions of the Smoke Abatement
Jurisdictional Statement 25
Code of the City of Detroit. Finding that the ordinance
applied equally to all ships and did not destroy the right
of free passage, this Court held that the ordinance was a
valid exercise of the state’s police power:
. . . State regulation based on the police power,
which does not discriminate against interstate
commerce or operate to disrupt its required uni-
formity, may constitutionally stand. . . .
“It has not been suggested that the local ordi-
nance, applicable alike to ‘any person, firm or
corporation’ within the city, discriminates against
interstate commerce as such. It is a regulation of
general application, designed to better the health
and welfare of the community. . . .” (emphasis
added )
Although a smoke abatement ordinance enacted to
promote the health and welfare of a city’s inhabitants will
generally support an exercise of the police power, the
power to adopt such ordinances is not unlimited.
“The basic limitations upon local legislative
power in this area are clear enough. The con-
trolling principles have been reiterated over the
years in a host of this Court’s decisions. Even-
handed local regulation to effectuate a legitimate
local public interest is valid unless pre-empted by
federal action . . . , or unduly burdensome on
maritime activities or interstate commerce .
Huron Cement Co. v. Detrolt, 302 U. S.
supra, at 443 (citations omitted, emphasis
added ).
The Court, in Huron, stressed the fact that the local
ordinance there in question was applicable alike to all
persons, firms and corporations. It is most significant, as
26 Jurisdictional Statement
noted by the Supreme Judicial Court of Maine in Portland
Pipe Line Corp. v. Environmental Imp. Com’n, 307 A. 2d
1, 40 (Sup. Jud. Ct. Me. 1973), that
“The Detroit ordinance [in Huron] did not dis-
criminate against interstate commerce and there
was no showing that national uniformity was re-
quired to prevent inconsistent local regulations.”
(emphasis added )
Had the ordinance been discriminatory, it surely
would have been struck down.
For example, if the City of Detroit had attempted to
reduce air pollution and thereby promote the health and
welfare of the city’s inhabitants by prohibiting the dis-
charge of smoke in the Port of Detroit by any steam-
powered vessel shipping out of another port while per-
mitting such discharge by local vessels, then the ordinance
would certainly represent an unconstitutional discrimina-
tion against interstate commerce.
Similarly, if the State of New Jersey had attempted to
reduce air pollution by prohibiting any person from driv-
ing a motor vehicle upon the roads of this state unless the
vehicle was registered in New Jersey, there would be an
unmistakable and intolerable discrimination against inter-
state commerce.
If there is a threat posed to the health, welfare and
safety of the people of New Jersey or to the quality of its
environment by the treatment or disposal of solid and
liquid waste in accordance with regulations administered
by the Department of Environmental Protection (a posi-
tion which appellants do not believe can be factually sup-
ported ), then it is a threat attributable to the nature of the
substance being regulated, and not to its place of origin.
Remedial measures based upon the exercise of the State’s
police power must be undertaken in an evenhanded man-
Jurisdictional Statement 27
ner. There can be no discrimination in favor of intrastate
commerce and against interstate commerce.
If the disposal of solid or liquid waste should be
limited or eliminated for reasons of public health, con-
servation, or environmental quality, then origin is not at all
a relevant factor. In those areas where the potential for
ecological harm is minimal or non-existent, there is no
legitimate basis to single out and discriminate against solid
and liquid waste collected in another state.
In an effort to support its decision, the New Jersey
Supreme Court noted that:
“Other state and federal courts in very recent
years have not hesitated to sustain legislation
having as its aim the protection of health and
the maintenance of environmental values and
natural resources against attacks based upon
alleged violations of the Commerce Clause.”
Hackensack Meadowlands v. Mun. Landfill
Auth., 68 N. J., supra at 476,
citing the following cases to support its observation:
American Can Co. v. Oregon Liquor Control Commission,
15 Ore. App. 618, 517 P. 2d 691 (Ct. App. Ore. 1973)
(ban on non-returnable beverage containers); Proctor &
Gamble Co. v. City of Chicago, 509 F. 2d 69 (7th Cir.
1974), cert. den. 421 U. S. 978 (1975) (ban on phosphate
detergents); Portland Pine Line Corp. v. Environmental
Imp. Com’n, 307 A. 2d i (Sup. Jud. Ct. Me. 1973), app.
dis., 414 U. S. 1035 (1973) (prevention and control of
marine oil spillage ); Construction Ind. Ass'n, Sonoma Cty.
v. City of Petaluma, 522 F. 2d 897 (9th Cir. 1975) (ban
on further building ).
Although the fact was neither expressed nor implied
by the New Jersey Supreme Court, discriminatory treat-
ment is entirely absent in each and every one of the
28 Jurisdictional Statement
above-cited cases. Intrastate commerce is treated equally
with interstate commerce.
In Hackensack Meadowlands v. Mun. Landfill Auth.,
127 N. J. Super. 160 (Ch. 1974) the companion case to
the case at bar, Judge (now Justice) Sidney Schreiber '
struck down regulations adopted by the New Jersey De-
partment of Environmental Protection and the Hacken-
sack Meadowlands Development Commission which pro-
hibited persons engaged in the collection of solid or liquid
wastes which originated or were collected outside the
State from disposing of same in the Hackensack Meadow-
lands District. In language equally pertinent to the
present matter, Judge Schreiber observed:
“DEP and HMDC rationalize that discrimination
is absent because the regulations do not prefer
New Jersey over out-of-state landfill operators or
garbage haulers. The difficulty with that ra-
tionale is that it is the discrimination based on
the origin of the refuse, not the residence of the
owner or carrier, which is invidious. Transporta-
tion of the refuse, whether carried by New
Jerseyans or nonresidents, in interstate commerce
is directly affected by the ban.
Although the State’s objective in attempting to
conserve a local natural resource for local needs
is a proper police power purpose, that cannot be
7. Subsequent to his decision tm the Hachonssck Meadowlands
case, Ju iber was elevated to the New J
Court. Hackensack Meadowlands case was the
State and consolidated for oral with the
matter cases were oe Se ome ane nder-
standably, Justice Schreiber did not in proceedings
Jurisdictional Statement 29
accomplished by discrimination based on the
source of the refuse.”
Hackensack Meadowlands v. Mun. Landfill
Auth., 127 N. J. Super., supra, at 174 (em-
phasis added ).
A state cannot discriminate against interstate com-
merce under the guise of protecting the health of its citi-
zens or its natural resources. The Court has a duty to
determine for itself whether the regulation represents a
valid exercise of the State’s police power, or whether it
is really and substantially a regulation of interstate com-
merce. Asbell v. Kansas, 209 U. S. 251, 256 (1908). The
exercise of that duty is especially important
because the power to determine the articles which may
be the subject of commerce is, in effect, the controlling
one. Bowman v. Chicago &c. Railway Co., 125 U. S. 465
(1888).
In Penna. v. West Virginia, 262 U. S. 553, 597-598
(1923), a West Virginia statute prohibited the exportation
of its natural gas unless an adequate supply was available
to meet the needs of its citizens. Although the Supreme
Court of the United States recognized that-the gas supply
was a natural product of the State and would be insuffi-
cient to meet the needs of the State if exportation was
allowed, the statute had to fall because it represented “an
attempt to regulate the interstate business to the advantage
of the local customers.”
Similarly, in Oklahoma v. Kansas Nat. Gas Co., 221
U. S. 229, 255 (1911), this Court declared unconstitutional
an Oklahoma “conservation” statute preventing a pipeline
company from transporting natural gas outside the state:
“If the States have such power a singular situation
might result. Pennsylvania might keep its coal,
30 Jurisdictional Statement
the Northwest its timber, the mining states their
minerals. And why may not the products of the
field be brought within the principle? Thus, en-
larged, or without that enlargement, its influence
on interstate commerce need not be pointed out.
To what consequence does such power tend?
If one state has it, all States have it; embargo may
be retaliated by embargo and commerce will be
halted at state lines. And yet we have said that
‘in matters of foreign and interstate commerce
there are no state lines’. In such commerce, in-
stead of the States, a new power appears and a
new welfare, a welfare which transcends that of
any State. But rather let us say it is constituted of
the welfare of all of the States and that of each
State is made greater by a division of its resources,
natural and created, with every State, and those
of every other State with it. This was the pur-
pose, as it is the result, of the interstate commerce
clause of the Constitution of the United States.
If there is to be a turning backward it must be
done by the authority of another instrumentality
than a court.” (emphasis added )
An identical position was expressed by Mr. Justice
Cardozo in declaring unconstitutional a statute which pro-
hibited the sale in New York of milk purchased in another
state at a lower price than the minimum prescribed by the
New York statute. “The Constitution”, commented Mr.
Justice Cardozo, “was framed under the dominion of a
political philosophy less parochial in range. It was framed
upon the theory that the peoples of the several states must
sink or swim together, and that in the long run prosperity
and salvation are in union and not division.” Baldwin v.
G. A. F. Seelig, 294 U. S. 511, 523 (1935).
Jurisdictional Statement 31
The parochial attitude identified by Mr. Justice
Cardozo is equally evident in the within matter, and is cal-
culated to lead to ruinous consequences on a national scale.
There exists a substantial urgency compelling an imme-
diate review of the constitutional validity of bans upon
interstate solid and liquid waste disposal.
2. Legitimate Local Purpose.
The Rules of the Bureau of Solid Waste Management
authorize the disposal* of solid waste in New Jersey
through use of:
“a. Sanitary landfills established, operated and
maintained in accordance with the regulations
set forth in this subchapter.
b. Incinerators constructed, operated and main-
tained in accordance with Regulations of the
New Jersey State Department of Environmental
Protection promulgated under authority of the
Air Pollution Control.Act 1954 and regulations
set forth in this subchapter.
c. Transfer station, composting facility, resource
recovery or other processing facility, constructed
and operated in accordance with regulations set
forth in this subchapter.”
N. J. A. C. 7:26-2.1.2.
The prohibition imposed by P. L. 1973, c. 363 is not
8. The word “disposal” is defined in said Rules as: “the storage,
treatment, utilization, processing, or final disposition of solid waste.
N. J. A. C. 7:26-1.4.20. The word “treatment” is not defined
32 Jurisdictional Statement
the Rules of the Bureau of Solid Waste Management, N. J.
A.C. 7:26-1 et seq.
In deciding the case at bar, the New Jersey Supreme
Court identified land preservation as the purpose support-
ing an exercise of the State’s police. power:
“ . . extending the lifespan of existing landfills
and thereby preserving further acreage from use
as disposal sites is a legitimate and valid exercise
of the police power of the State.”
Hackensack Meadowlands v. Mun. Land-
fill Auth., 68 N. J., supra, at 472.
No other form of disposal was mentioned by the New
Jersey Supreme Court as support for the enactment of P. L.
1973, c. 363.
Although a state has a responsibility to protect its
people and their property, it is well-established that a
police regulation which affects interstate commerce must
not go beyond the necessities of the particular case. Reid
v. Colorado, 187 U. S. 137, 151 (1902); Smith v. St. Louis
and Southwestern Ry. Co., 181 U. S. 248, 256 (1901).
If the purpose as found by the New Jersey Supreme
Court, of P. L. 1973, c. 363 was to preserve land, then there
was no basis to prohibit (a) entry, and (b) other author-
ized and regulated forms of disposal. The statute went
far beyond what was reasonable and necessary in order
to accomplish its purpose.
It is interesting that “garbage to be fed to swine in
the State of New Jersey” is excepted from the prohibition
imposed by P. L. 1973, c. 363. The word “garbage” is
not synonymous or co-extensive with, but is narrower than,
the term “solid waste”. It is a word of art, separately de-
fined in New Jersey as:
Jurisdictional Statement 33
“, . . all putrescible animal and vegetable wastes
resulting from the handling, preparation, cook-
ing, and consumption of . . . food... .”
N. J. A. C. 12:100-2.1. (emphasis added )
Putrescible waste ° has a greater potential for harm to
the public health than bulky waste,"® construction waste ™
or demolition waste.” Yet garbage to be fed to swine can
freely enter New Jersey, while non-putrescible wastes and
garbage intended for other purposes cannot.
P. L. 1973, c. 363 contains a Legislative finding
“. .. that the public, health, safety, and welfare
require that the treatment and disposal within
this State of all wastes generated outside of the
State be prohibited.”
N. J. S. A. 13:11-9. (emphasis added)
Notwithstanding this finding, and in apparent incon-
9. N. J. A. C. 7:26-1446—“Any waste liable to enter into a
by bacteria and fang ‘with the formation of feal-smelling nom
ll. mF A. C. pace gates «edge y bee app and refuse
houses, commercial buildings, pavements, aaa
12. N. J. A. C. 7:26-1.4.17—“Waste generated from the razing
of factories, and other man-made structures, including
hey fee 8
34 Jurisdictional Statement
the same statute to independently determine that the
entry of solid and liquid waste collected in another state
“ .. can be permitted without endangering the
public health, safety and welfare... ,”
N. J. S. A. 13:11-10.
pursuant to regulations promulgated by the Commissioner
permitting and regulating its treatment and disposal.
Sixteen days after the enactment of P. L. 1973, c. 363,
and in accordance with the authority granted to him in
said legislation, the Commissioner adopted N. J. A. C. 7:26-
1.4 to become effective on the same date as the statute,
February 1, 1974. Although said rule followed P. L. 1973,
c. 363 in declaring a general prohibition against the entry
into New Jersey of solid or liquid waste collected outside
the State,
“No person shall bring into this State, or accept
for disposal in this State, any solid or liquid waste
which originated or was collected outside the
territorial limits of this State,”
certain designated wastes including pesticides, hazardous
waste and chemical waste entering the State solely for
processing or treatment, were excepted from the general-
ized entry ban. N. J. A. C. 7:1-4.2. This action by the
Commissioner was exceedingly significant for at least two
reasons: (a) contrary to the legislative finding, it demon-
strated that the public health, safety and welfare, in
actuality, did not require that the entry of all wastes gen-
erated outside the State be prohibited, and (b) if sub-
stances noxiously designated “hazardous waste” could be
carried into New Jersey without further regulation of
transportation, then it follows that the mere entry of any
'
;
Jurisdictional Statement 35
other less hazardous waste does not endanger the public
| health, safety and welfare.
The fact that the Commissioner may permit the entry
of solid and liquid wastes which are otherwise prohibited
by P. L. 1973, c. 363 does not legitimitize the statute in
a constitutional sense. All out-of-state wastes are banned
until the Commissioner affirmatively acts. The Commis-
sioner is neither compelled to act nor to deal with solid
and liquid wastes collected within the State on an equal
basis with those collected outside the State. In fact, the
regulations that were adopted by the Commissioner on
an emergency basis, N. J. A. C. 7:1-4, perpetuate the dis-
crimination evidenced by P. L. 1973, c. 363, and point out
the manifest impropriety of the prohibition. Furthermore,
the Commissioner may amend or repeal regulations with
relative ease. And no explanation is offered as to why
the methods of treatment and disposal permitted by
N. J. A. C. 7:1-4 for out-of-state wastes are significantly
more restrictive than the list of approved methods for
solid waste disposal contained in the Rules of the Bureau
of Solid Waste Management~N. J. A. C. 7:26-1 et seq.
If the methods of disposal delineated in N. J. A. C. 7:26-1
et seq. “. . . can be permitted without endangering the
public health, safety and welfare . . .,” N. J. S. A. 13:1I-
10, then they can be permitted for solid and liquid waste
collected outside the State as well as for those wastes col-
lected within the State.
The disposal of solid waste in accordance with pres-
ently existing laws and regulations and in conformance
with sound engineering practices ** does not present a
serious threat to the health or environmental safety of
13. A design prepared by a professional licensed must
bie ceaieedtae el teeeeata tie ee tenant tales aste Man-
agement condition precedent to the operation of sani-
tay Tandill or the expansion of any existing facility. és C.
36 Jurisdictional Statement
the community. Appellees have never, by affidavit, dis-
puted this conclusion, which is generally accepted through-
out the United States.
In Horn v. Community Refuse Disposal, Inc., 186
Neb. 43, 180 N. W. 2d 691 (Sup. Ct. 1970), plaintiffs
brought an action to enjoin the establishment and opera-
tion of a sanitary landfill. The court denied the applica-
tion saying:
“The evidence is persuasive that it is possible to
operate a sanitary landfill so that it will not emit
offensive odors, pollute ground waters, or be
attractive to rodents. The rules and regulations
adopted in 1969 enforcible by the State Depart-
ment of Health under statutory authority are
reasonably designed to produce that result.”
Horn v. Community Refuse Disposal, Inc.,
180 N. W. 2d, supra, at 692.
The overwhelmingly accepted rule is that incinerators
and sanitary landfills which are properly maintained and
operated are not public nuisances. Wood v. Town of
Wilton, 156 Conn. 304, 240 A. 2d 904 (Sup. Ct. 1968);
Rocchi v. Zoning Bd. of App. of Town of Glastonbury,
157 Conn. 106, 248 A. 2d 922 (Sup. Ct. 1968); Myers v.
City of Hagerstown, 214 Md. 312, 135 A. 2d 147 (Ct. App.
1957) (and cases therein cited); Annotation, “Public
Dump as Nuisance”, 52 ALR 2d 1134.
All too often, the words “sanitary landfill” and “dump”
are confused with one another. They are very different
entities. The Rules of the Bureau of Solid Waste Manage-
ment define a sanitary landfill as:
“The land disposal site employing an engineered
method of disposal of solid waste in a manner
that minimizes environmental hazards, including,
but not limited to the spreading of the solid
Jurisdictional Statement 37
waste in thin layers, compacting the waste to
the smallest practical volume, and applying cover
material on a daily or more frequent basis.”
‘ ON. J. A. C. 7:26-1.4.54
A dump, on the other hand, is separately defined as:
“A land site at which solid waste is disposed of
in a manner which does not protect the environ-
ment, is susceptible to open burning, or is ex-
posed to the elements, vectors, and scavengers.”
N. J. A. C. 7:26-1.4.23
When dumps were determined to be hazardous to
human health, their operation was entirely prohibited in
the State of New Jersey. N. J. A. C. 7:26-2.1.1. No dis-
tinction was made between waste collected within New
Jersey and waste collected outside the State. The regula-
tion acted in a non-discriminatory, even-handed manner
in addressing a legitimate public problem. If a dump
posed a substantial threat to public health and environ-
mental quality, the place of origin of the waste deposited
in it was entirely irrelevant.
Although incineration is a form of disposal authorized
and regulated by the Rules of the Bureau of Solid Waste
Management, N. J. A. C. 7:26-2.1.2b, solid and liquid
waste collected outside New Jersey cannot be incinerated
in New Jersey. P. L. 1973, c. 363; N. J. A. C. 7:1-4. This
position is particularly incongruous in light of Appellees
admission in their answer to the complaint that there is no
qualitative difference between the solid waste which origi-
nates or is collected outside the State of New Jersey and
that which originates or is collected within the State, and
there is no difference with respect to the disposal of same.
The burnability factor of each is identical (Appendix M,
A109 infra).
38 Jurisdictional Statement
Air pollution is not confined to artificially created state
or municipal boundaries. It moves freely in “interstate
commerce”. Georgia v. Tennessee Copper Co., 206 U. S.
230, 237 (1907); United States v. Bishop Processing Com-
pany, 287 F. Supp. 624 (Md. 1968). While a state has a
legitimate local interest in regulating emissions into the air
which its residents breathe, it cannot discriminate against
or unduly burden interstate commerce in seeking to ef-
fectuate that in.crest. Huron Cement Co. v. Detroit, 362
U. S. 440, 443 (1960).
3. Effect Upon Interstate Commerce.
The direct burden imposed upon interstate commerce
by the adoption of P. L. 1973, c. 363 is obvious and severe.
Prohibitory legislation affects interstate commerce in a
most basic and fundamental sense. As stated by Mr.
Justice McKenna in Oklahoma v. Kansas Nat. Gas Co., 221
U. S., supra, at 249, “. . . to prohibit interstate commerce
is more than to indirectly affect it.”
P. L. 1973, c. 363 directly prohibits the interstate dis-
posal of solid and liquid waste. It is not unique in that
respect. Since 1969, seven states have adopted laws which,
to varying degrees, prohibit the disposal of solid waste col-
lected in another state."* Three other states have imposed
various regulatory limitations * (Appendix AA, A231 infra).
The effect of these enactments is to retard, if not to en-
tirely obviate, the national goal of achieving interstate
14. Maine, Massachusetts, New Hampshire, New Jersey, Penn-
sylvania, Rhode Island and Vermont.
On December 30, 1974, the Commonwealth of Pennsylvania
enacted legislation to prevent the disposal in that Commonwealth
of cali carte antieeted team on location in another state that does
not accept solid waste from lvania. This legislation was
surely prompted by, and retaliatorily directed against, the
hibitory legislation adopted in New Jersey. ad
15. Delaware, Illinois and Louisiana.
Jurisdictional Statement 39
cooperation in confronting the solid waste disposal problem
(Appendix L, A103 infra).
More than ten years ago, Congress identified solid
waste disposal as a problem of national concern. In 1965
it enacted the Solid Waste Disposal Act, Pub. L. 89-272,
for the purpose of promoting “a national research and de-
velopment program for new and improved methods of
proper and economic solid waste disposal”, 42 U. S. C.
§ 3251(b)(1), and providing financial resources to ac-
complish same. Five years later, the Resource Recovery
Act of 1970, Pub. L. 91-512 was adopted to underscore the
importance of resource recovery. In both cases, the Secre-
tary of Health, Education and Welfare (now the Adminis-
trator of the Environmental Protection Agency) was di-
rected to “. . . encourge cooperative activities by the
States . . . encourage, where practicable, interstate, inter-
local, and regional planning . . .; and endourge the enact-
ment of improved and, so far as practicable, uniform state
and local laws governing solid waste disposal”. 42 U. S.C.
§ 3254.
Prohibitory and retaliatoryMegislation is clearly alien
to the expressed congressional intent. It creates a climate
attuned to inhibit rather than to promote the national in-
terest.
In addition, the cost of solid waste collection and dis-
posal, which is already significant, will rise even more.
An estimated $3 billion was spent annually for solid
waste collection and disposal at the time of the adoption of
the Solid Waste Disposal Act, 42 U. S. C. § 3251 et seq.,
1965 U. S. Code, Cong. and Adm. News, p. 3614. The cost
of said service reached an estimated $4.5 billion by 1970,
1970 U. S. Code, Cong. and Adm. News, p. 4553. The
House Report noted:
“The greatest amount of the moneys spent goes
for collecting solid waste and transporting it to
40 Jurisdictional Statement
some place where it may be dumped or burned.”
1970 U. S. Code, Cong. and Adm. News, p.
4553.
The New Jersey Supreme Court recognized the obvi-
ous economic impact of its decision upon interstate com-
merce:
“The City of Yonkers has access to the Croton
dump in New York at a modest increase in cost of
five dollars per ton. Philadelphia’s stated alterna-
tives are either to install adequate air pollution
devices in their existing incinerators or to estab-
lish new landfill sites outside the city, which
would require the purchase of additional disposal
trucks.”
Hackensack Meadowlands v. Mun. Landfill
Auth., 68 N. J., supra, at 476.
Assuming a cost increase at the same “modest” rate of
$5 per ton calculated for Yonkers, there would be a yearly
cost increase of $7.5 million to persons disposing of out-of-
state wastes in New Jersey based upon 1971 tonnage
estimates compiled by the New Jersey Department of
Environmental Protection. Hackensack Meadowlands v.
Mun. Landfill Auth., 68 N. J., supra at 461.
These figures do not take into account the economic
harm which likely will be suffered by New Jersey in its
efforts to dispose of the solid waste collected within its
borders. Since a direct relationship exists in solid waste
land disposal between cost and distance to disposal site,
communities located in northern New Jersey will no doubt
look to southern New York and eastern Pennsylvania, rather
than to southern New Jersey, when existing landfill sites
situated in the northern part of the state are consumed in
an estimated 3 years. Hackensack Meadowlands v. Mun.
Jurisdictional Statement 4]
Landfill Auth., 68 N. J., supra, at 461. Unless this Court
hears the instant matter, New Jersey communities will be
immediately foreclosed from seeking disposal alternatives
in Pennsylvania, either now or in the future, because re-
taliatory legislation has already been adopted by that
Commonwealth.
In wording and in practical effect, P. L. 1973, c. 363
imposes a direct and intolerable burden upon interstate
commerce which appellants respectfully call upon this
Court to review.
C. Appellants Were Unconstitutionally Denied a Plenary
Hearing on the Merits of Their Claim.
In granting appellants’ motion for summary judgment
on March 25, 1974, the New Jersey Superior Court, Law
Division, declared P. L. 1973, c. 363 unconstitutional on
the ground that it discriminates against interstate com-
merce.
The statements made by Mr. Justice Brennan, when
he sat upon the New Jersey Supreme Court, in Judson v.
Peoples Bank & Trust Co. of Westfield, 17 N. J. 67, 74,
110 A. 2d 24 (1954) continue to represent the definitive
expression of the standards of decision governing the
grant or denial of a summary judgment motion:
“It is designed to provide a prompt businesslike
and inexpensive method of disposing of any cause
which a discriminating search of the merits in the
pleadings, depositions ahd admissions on file, to-
gether with the affidavits submitted on the mo-
tion clearly shows not to present any genuine
issue of material fact requiring disposition at a
trial.
42 Jurisdictional Statement
The standards of decision governing the grant or
denial of a summary judgment emphasize that a
party opposing a motion is not to be denied a
trial unless the moving party sustains the burden
of showing clearly the absence of a genuine issue
of material fact. At the same time, the stand-
ards are to be applied with discriminating care
so as not to defeat a summary judgment if the
movant is justly entitled to one.” (emphasis
added )
The trial judge’s opinion reveals his determination as
a matter of federal constitutional law, (a) that the trans-
portation of solid or liquid waste across state lines is a
legitimate subject of interstate commerce, and (b) that
P. L. 1973, c. 363, on its face, discriminates against inter-
stated commerce. Had the trial court not reached those
conclusions, appellants’ motion for summary judgment
would have been denied, and the plenary hearing sched-
uled for April 15, 1974, would have been conducted.
By their notice of appeal (Appendix R, A207 infra),
Appellees appealed to the Superior Court of New Jersey,
Appellate Division:
“, . . from the final judgment of the Superior
Court, Law Division, Mercer County, entered on
March 26, 1974, by the Honorable George Y.
Schoch, declaring P. L. 1973, c. 363 unconstit:-
tional as violative of Art. I, Section 8, Clause 3
of the Constitution of the United States in favor
of plaintiffs, City of Philadelphia, Pennsylvania,
City of Glen Cove, Long Island, New York, Land-
fill and Development Company, MAC Sanitary
Landfill, Inc., Kinsley’s Landfill, Inc. and
DeLorenzo-Interstate Waste Removal Co., Inc.”
Jurisdictional Statement 43
Said notice of appeal also contained a certification
that a plenary hearing had never been held before the trial
court:
“I hereby certify that there was no testimony
taken in the above case. The matter was de-
cided on summary judgment.”
Appellees did not appeal from the denial of their
cross-motion for partial summary judgment as, indeed,
there was no reason for them so to do. Even if their
motion had originally been granted by the trial court, it
would not have disposed of the matter on its merits, but
merely led to a hearing of the numerous remaining issues
of material fact. A reversal of the judgment of the trial
court by an appellate tribunal would have the same sub-
stantive effect.
Although the New Jersey Supreme Court agreed that
the transportation and disposal of solid waste represented
a legitimate subject of interstate commerce, it did not
agree that P. L. 1973, c. 363 discriminated against inter-
state commerce. However, instead of reversing the deci-
sion of the trial court and remanding the matter for a hear-
ing on the material factual issues presented by the
complaint, it disposed of the entire matter by upholding
the constitutionality of the statute. Appellants were
thereby entirely deprived of an opportunity to present
evidence on the reasonableness of the exercise of the
State’s police power and the extent of the burden upon
interstate commerce. They were also deprived of their
fundamental right to present evidence with respect to
the numerous non-Commerce Clause issues raised by
their complaint.
This result was incomprehensible. Appellees had
never urged that they were entitled to judgment, as a mat-
ter of law, on the merits of the entire action. Quite to the
44 Jurisdictional Statement
contrary, they specifically argued to the trial court that
there were numerous unresolved questions of material
fact:
“At this stage of the litigation sub judice the
Court has not had an opportunity to consider any
of the relevant facts and circumstances except
affidavits submitted in favor of and in opposition
to the issuance of ad interim restraints.
Among those proofs which the court must con-
sider are: the nature and extent of the dangers
to the health, safety, welfare and environment of
New Jersey presented by the disposal of wastes
in New Jersey; the nature and extent of the solid
waste crisis in New Jersey; the rapid exhaustion
of landfill life in New Jersey; the volume of out-
of-state waste being disposed of in New Jersey;
the severe limiting effects on the future develop-
ment of property which has been used for sani-
tary landfill purposes; the extent of the effect on
interstate commerce.”
(Appendix Q, A206 infra).
Appellants petitioned the New Jersey Supreme Court
to reconsider their decision. They pointed out that a
plenary hearing had never been held on any issue raised
by the complaint, including the reasonableness of the
exercise of the State’s police power and the extent of its
burden upon interstate commerce, and that P. L. 1973, c.
363 was not being attacked on Commerce Clause grounds
alone.
After considering appellants’ arguments, the New
Jersey Supreme Court remanded the case to the trial court
“. . . for such further proceedings, if any, that that Court
Jurisdictional Statement 45
may deem appropriate. . . .” (Appendix X, A224 infra). No
guidance was given to the trial court as to what proceed-
ings, if any, might be “deemed appropriate” by the New
Jersey Supreme Court in light of its decision, on the merits,
that P. L. 1973, c. 363 represented a reasonable exercise of
the State’s police power and did not unreasonably burden
interstate commerce. Said decision was neither altered
nor amended in connection with the remand. In addition,
the Court refused to retain jurisdiction and specifically
prohibited the trial court from granting any interim in-
junctive relief. After effectively depriving appellants of
their day in court on the merits of their complaint, the
Court also foreclosed appellants from pursuing procedural
remedies in the trial court.
The net effect of these rulings was not only to place
appellants in a substantially worse position than they would
have been in had their motion for summary judgment ini-
tially been denied by the trial court, but also to deprive
them of a most basic and fundamental right: appellants
were never afforded an opportunity to be heard prior to a
final determination by the New Jersey Supreme Court that
P. L. 1973, c. 363 (a) represented a reasonable exercise of
the State’s police power, and (b) did not unreasonably
burden interstate commerce. In addition, they were fore-
closed from obtaining injunctive relief pending a resolution
of “. . . such further proceedings, if any, that . . . [the
trial] Court may deem appropriate . Sgege
As a practical consequence of this action,” appellants
were constrained to dismiss, with prejudice, each and
every count in their complaint which had not been directly
46 Jurisdictional Statement
addressed by the New Jersey Supreme Court, so that a
direct appeal could be taken to this Court.
Appellants respectfully contend that they have been
denied due process of law by the New Jersey Supreme
Court, in violation of the 5th and 14th amendments to the
Constitution of the United States, and in contravention of
the decisions of this Court.
The principle of federal constitutional law applicable
to the case at bar has been reiterated time and time again
by the United States Supreme Court:
“The fundamental requisite of due process of law
is the opportunity to be heard.”
Grannis v. Ordean, 234 U. S. 385, 394
(1914); Mullane v. Central Hanover Tr. Co.,
339 U. S. 306 (1950).
An opportunity to be heard includes an opportunity to
present a case and to be heard in its support. Brinkerhoff-
Faris Co. v. Hill, 281 U. S. 673, 681 (1930). Although
appellants scrupulously followed the procedural rules in-
hering in the courts in the State of New Jersey, they were
entirely deprived of an opportunity to be heard at a
meaningful time and in a meaningful manner in order to
defend their substantive right. They had no opportunity
to be heard on the merits of any issue raised by their com-
plaint prior to the final determination. Rhodes v. Houston,
202 F. Supp. 624 (Neb. 1962), affd 309 F. 2d 959 (8th
Cir. 1962), cert. den. 372 U. S. 909 (1963), 383 U. S. 971
(1966).
The denial of this fundamental right was raised to the
New Jersey Supreme Court at a conference meeting in the
presence of appellees on November 18, 1975, the very
same day that the case sub judice was decided. Accord-
ingly, the additional federal claim presented by the within
Jurisdictional Statement 47
due process argument was raised by appellants at their
very first opportunity. Brinkerhoff-Faris Co. v. Hill, 281
U. S., supra, at 678. It was asserted a second time less
than two weeks later in a motion addressed to the New
Jersey Supreme Court which resulted in the aforesaid
order remanding the case to the trial court “. . . for such
further proceedings, if any, that that Court may deem
appropriate... .”
Upon appellants consent to dismiss all counts of its
complaint except Counts I, VII and XIX, no further pro-
ceedings were deemed appropriate by the trial court,
“. . . in light of . . . the decision by the New
Jersey Supreme Court upholding the constitu-
tionality of P. L. 1973, c. 363 as representing a
valid exercise of the State’s police power which
does not reasonably burden interstate commerce
and said Court thereby having finally determined
Counts I, VII and XIX of plaintiffs’ complaint
(Appendix C, A57> supra)
The action taken by the New Jersey Supreme Court
in upholding the constitutionality of P. L. 1973, c. 363
without affording appellants an opportunity to be heard on
the merits violates due process of the law. Fundamental
rights cannot so lightly be discarded.
CONCLUSION.
The New Jersey Supreme Court has decided an issue
of national importance in a way not in accord with
the decisions of this Court, and in conflict with de-
cisions of other state and federal courts which have re-
cently decided cases involving environmental questions.
48 Jurisdictional Statement
It has also so far departed from the accepted and usual
course of judicial proceedings as to violate appellants’
right to due process of the law in violation of the 5th and
14th amendments to the Constitution of the United States.
Because ot the critical issues of great and general pub-
lic interest involved, it is respectfully urged that this Court
note jurisdiction and hear the case on its merits.
Respectfully submitted,
HERBERT F. Moore,
ARTHUR MEISEL,
Jamieson, McCaRrpELL,
Moore, Peskin & SPICER,
Joun R. Papova, A Professional Corporation,
SoL_o & Papova, Attorneys for Appellants. .
Special Legal Counsel to
Appellant City of
Philadelphia.
49
Certificate of Service.
We hereby certify that on this (OP aay of February,
1976, three copies of this Jurisdictional Statement were
mailed, with adequate first class postage prepaid, to
Assistant Attorney General Stephen Skillman, at his office
located in the State House Annex, Trenton, New Jersey,
08625; to Vincent J. Dotoli, Esquire, attorney for plaintiffs-
intervenors at his law office located at Interstate 287 &
McKinley Street, Plainfield, New Jersey 07080; and to
David N. Samson, Esquire, attorney for defendants-
respondents in the companion case Hackensack Meadow-
lands v. Mun. Landfill Auth., A-81 (decided November 18,
1975), at his law office located at 80 Main Street, West
Orange, New Jersey 07052.
We further certify that all parties required to be
served have been served. .
Appendix A-1 Al
APPENDIX A-l.
Superior Court oF NEw JERSEY.
Law Drvision—MERCER COUNTY.
Docket No. L-15068-73 P. W.
CITY OF PHILADELPHIA, a Municipat CorPporATION
OF THE COMMONWEALTH OF PENNSYLVANIA, CITY OF
GLEN COVE, a MunicipaL CoRPORATION OF THE
State oF New Yorx, LANDFILL & DEVELOP-
MENT CO., a N. J. Conporation, MacSANITARY
LANDFILL, Inc., a N. J. Corporation, KINSLEY’S
LANDFILL, Inc., a N. J. Corporation, anp DeE-
LORENZO-INTERSTATE WASTE REMOVAL
COMPANY, a N. J. Corporation, JOHN P. FAZZIO,
Inc., T/A JOHN P. FAZZIO LANDFILL COMPANY,
AND CONTINENTAL VANGUARD, a N. J. Cor-
PORATION,
Plaintiffs,
0.
q \
STATE OF NEW JERSEY, DepartMent or ENvinon-
MENTAL PROTECTION OF THE STATE OF NEW JERSEY,
AND RICHARD J. SULLIVAN, CommissIONER OF THE
DEPARTMENT OF ENVIRONMENTAL PROTECTION OF THE
STATE OF NEw JERSEY,
Defendants.
ORAL OPINION.
Before:
HonoraB_e Georce Y. Scuocn, J.S.C.
Place:
Mercer County Courthouse,
Trenton, New Jersey.
March 25, 1974.
Appearances:
Jamieson, WaLsH, McCarpELL, Moore & Peskin, by
Mr. Hersert F. Moore, and ARTHUR MEISEL,
appearing on behalf of the plaintiffs, attorneys.
Mr. Vincent J. Doroui, appearing on behalf of de-
fendant Fazzio, attorney.
Witu1aM F. Hyanp, Attorney General of the State
of New Jersey, by Mr. Mark L. First, Deputy
Attorney General, appearing on behalf of the
defendant-State of New Jersey.
THe Court: Well, there are three separate points
raised by the motions or, I should say, by the motion and
countermotion presented here. Each side makes this
argument for summary judgment conceding that as to
these particular issues there are no material issues of fact
involved and so that the issues before the court at the
moment are ripe for summary judgment.
The New Jersey Legislature passed a law, Public Law
1973, Chapter 363, which says in part, “No person shall
bring into this state any solid or liquid waste which origi-
nated or was collected outside the territorial limits of the
state, except garbage to be fed to swine in the State of
New Jersey, until the Commissioner shall determine such
action can be permitted without endangering the public
health, safety and welfare and has promulgated regula-
tions permitting and regulating the treatment and dis-
posal of such waste in this state.”
There were emergency regulations promulgated by
the Commissioner, N. J. A. C. 7:1-4.1 and N. J. A. C. 7:1-
4.2. The second regulation sets forth certain exceptions,
descriptions of exceptions to the prohibition of solid or
liquid waste, including separated waste material that is
Appendix A-1 A3
intended for re-cycling and certain other exceptions which
are immaterial to the issue at hand.
Obviously the first matter that must be decided is
whether the item of solid or liquid waste, we have been
calling it garbage but it obviously includes more than
just garbage, whether that item is a proper subject of
interstate commerce. If it is not then there would be no
prohibition against the state passing a law that prohibits
the passage or importation of such item either through or
into the state, since it would not violate the interstate
commerce clause of the United States Constitution.
With reference to that point my attention has been
called to two cases. One is the case of Barnett v. A-1
Scavenger Service Co., Inc., a Missouri Court of Appeals
case (1971) reported at 466 Southwestern 2d at 150.
That case involved an interpretation of the Fair Labor
Standards Act. A helper on a refuse truck who worked
for an employer engaged exclusively in the collection and
disposal of garbage and waste in the City of St. Louis,
whether or not he was subject to the Fair Labor Standards
provisions regarding minimunt wage and overtime, be-
cause the employer collected waste from companies en-
gaged in interstate commerce. At page 156 the court
said, and I quote, “In the instant case it can scarcely be
plausibly argued that the garbage and refuse after being
collected by plaintiff entered the channels of interstate
commerce, or the mere transportation of such garbage and
other refuse for the purpose of disposing of it could be
said to be commerce among the several states within the
meaning of the Fair Labor Standards Act.”
So we have the authority of that case which indicates
that the transportation of trash and waste across the state
line is not engaging in interstate commerce. On the other
hand, there is a case of U. S. v. Pennsylvania Refuse Re-
A4 Appendix A-1
moval Association, at 242 Federal Supplement 794, U. S.
District Court case for the Eastern District of Pennsyl-
vania (1965) where the court said at page 799, “Defend-
ants argue at various points in their brief that because trash
itself is by definition a worthless commodity, it cannot
be the subject of ‘trade or commerce’ as those terms are
used in the Sherman Act. That argument misses the point.
Here, the relevant subject of ‘trade or commerce’ was not
worthless debris, but the valuable service of removing and
disposing of it. Since services are encompassed within
the meaning of the words ‘trade or commerce’ as used in
the Act, the defendant’s position has no merit.” And on
appeal to the U. S. 3rd Circuit Court reported at 357 Fed-
eral 2d, 806 (1966), the 3d Circuit Court said at page 808,
“From the record we are satisfied that the factual holding
of the trial judge that ‘the hauling and disposing of refuse
was an integral part of the refuse removal business’ is en-
tirely correct. In that situation the refuse transported
from Pennsylvania to New Jersey and disposed of in the
latter state is a vital element of the one business operation
which plainly is a proper subject of interstate commerce.”
Then there is a citation of Hoke v. U. S.
Then we have the case of U. S. v. Bishop Processing
Company, U. S. District Court, District of Maryland
(1968) 287 Federal Supplement 624, which I think could
be analogized to our case. In the Bishop case the question
was whether a business or factory that polluted the air and
that air pollution, malodorous pollution obviously affected
business conditions and property values in the neighbor-
ing state when the wind blew the smell and pollutants
across the state line. One of the questions that had to be
decided was whether the Clean Air Act covered this ac-
tivity, that is, whether or not movement of the air pol-
lutants across state lines constituted interstate commerce.
Appendix A-1 A5
And the District Court in Maryland decided, at page 629,
that it did, saying, “The movement of pollutants across a
state line is proper jurisdictional basis for the provisions of
the Act relating to the abatement of interstate air pollu-
tion. Such movement of pollutants across state lines con-
stitutes interstate commerce subject to the power granted
the Congress by the Constitution to regulate such com-
merce.
From my analysis of the cases that I have just cited I
think that the proper viewpoint to accept is that of the 3d
Circuit that the transportation of waste across the state
line is a subject of interstate commerce and, therefore,
subject to the controls of Congress in accordance with the
interstate commerce laws. However, that is not dispositive
of the problem. The plaintiff suggested the second point
that the Federal Government has pre-empted this field,
and when I say this field I mean the field of prohibition of
interstate movement of solid waste for either treatment
or disposal.
I prefer to decide the problem on the basis of ‘lis-
crimination rather than on the theory of pre-emption be-
cause I think the issue is more clearly defined when we
consider discrimination. I have already read certain por-
tions of the federal code. I will refer to them again. 42
U. S. C. A. 3254. Let me read this in full. “The secre-
tary shall encourage cooperative activities by the states
and local governments in connection with solid waste dis-
posal programs; encourage, where practicable, interstate,
interlocal and regional planning for, and the conduct of,
interstate, interlocal and regional solid-waste disposal pro-
grams; and encourage the enactment of improved and, so
far as practicable, uniform state and local laws governing
solid waste disposal.”
In Section 3251 there are five parts to subsection (b)
setting forth the purposes of this particular law, all of
A6 Appendix A-1
which talk about assistance, technical advice, training
grants, et cetera. None of which seems to me indicate the
type of pre-emption that I feel would be required in order
to find the Federal Government has pre-empted this field
in the fashion that the plaintiffs suggest and to arrive at
the decision the plaintiffs suggest.
So we come to the question of whether or not this
statute passed by the Legislature of New Jersey which,
as I have already indicated, I find involves material which
is the subject of interstate commerce, whether the statute
discriminates against interstate commerce to the extent
that it should be declared unconstitutional. I immediately
concede that I am aware of the cases which hold that there
is a strong presumption that the statute is constitutional
and the legislative act will not be declared void unless its
repugnancy to the Constitution is clear beyond a reason-
able doubt. Further, to declare a statute unconstitutional
is a judicial power to be delicately exercised, quoting from
Harvey v. Essex County Board of Freeholders, 30 N. J. 381.
The Court in the case of Supermarket General v. Sills, 93
N. J. Superior, 326 (Chancery Div. 1966) cites a quotation
from the U. S. Supreme Court case of Head v. New Mexico
Board of Examiners at page 345. The New Jersey Court
says, “A state law may not be struck down on the mere
showing that its administration affects interstate commerce
in some way. State regulation based on the police power
which does not discriminate against interstate commerce
or operate to disrupt its required uniformity may con-
stitutionally stand.”
As Judge Schreiber said in the case of Hackensack
Meadows Development v. Municipal Sanitary Landfill
Authority, a Chancery Division slip opinion dated Febru-
ary 13, 1974, page 12 of that slip opinion, “State regu-
lations and laws based on the exercise of the police power
Appendix A-1 AT7
may only stand if they do not discriminate against inter-
state commerce.”
I am aware of the long line of cases that deal with
the transportation of deleterious substances. They are
listed in Baldwin v. Seelig, 294 U. S. 511 (1934), opinion
of Mr. Justice Cardozo, at page 525, 7 Lawyers Ed., 1039,
which recites some of the cases which have upheld the
statutes regulating the importation of unhealthy cattle,
decayed foods. Mr. Justice Cardozo’says, “Things such
as these are not proper subjects of commerce (and notes )
there is no unreasonable interference when they are in-
spected and excluded.” .
I think the situation is different in this case before
me and I see a relationship between the natural gas cases
and this case. Some may say it’s a strained reason but
the natural gas cases that I refer to are Pennsylvania v.
West Virginia, 262 U. S. 553, and West v. Kansas Natural
Gas Company, 221 U. S. 229. Each of those cases, the
so-called home state attempted to prevent the exportation
of one of its natural resources and the statutes were struck
down as unconstitutional in derogation of the free flow
of commerce, that it is Congress’ prerogative to control
and not the state.
If we consider, as I do, that the purpose of the statute
in question here is to conserve natural resources of the
state, that by restricting the amount of solid waste that
is presented to the various disposal companies, the natural
resources, the land, the availability of the land will be
prolonged or extended or used less quickly. I don’t see
any difference between a state being prevented from
prohibiting exportation of natural gas than the state being
prevented from prohibiting the importation of something
that will in effect use one of the state’s natural resources.
Therefore, I find that the statute in question here
is attempting to control material that is properly the sub-
A8 Appendix A-1
ject of interstate commerce, that the method of attempting
is discriminatory and, therefore, unconstitutional.
You will prepare an order, Mr. Moore?
Mr. Moore: Yes, sir.
(End)
COURT REPORTERS CERTIFICATION.
I, ANTHONY D1 STEFANO, one of the Official Court
Reporters of the Superior and County Courts of the State
of New Jersey, do hereby certify that the foregoing is a
true and accurate transcript of my stenographic notes
taken by me in the above entitled matter.
ANTHONY D1 STEFANO
Anthony Di Stefano
Dated: March 28, 1974.
Appendix A-2 A9
APPENDIX A-2.
[127 N. J. Super. 160, 316 A. 2d 711 (Ch. 1974)]
[160]
HACKENSACK MEADOWLANDS DEVELOPMENT
COMMISSION AND STATE OF NEW JERSEY
DEPARTMENT OF ENVIRONMENTAL PRO-
TECTION, PLAINTIFFS, v. MUNICIPAL SANI-
TARY LANDFILL AUTHORITY, A JOINT VEN-
TURE OF WILLIAM A. KEEGAN, INC., RECLA-
MATION AND IMPROVEMENT CO., PETER
ROSELLE & SONS, INC. AND DELAWARE
SANITARY CO., DEFENDANTS, AND CITY OF
YONKERS, NEW YORK, DEFENDANT-INTER-
VENOR.
Superior Court of New Jersey
Chancery Division
Decided February 13, 1974.
oO ° “
[162]
Mr. Mark L. First, Deputy Attorney General, for
plaintiffs (Mr. George F. Kugler, Jr., Attorney General of
New Jersey, attorney ).
Mr. David Samson for defendants (Messrs. Lieb,
Wolff & Samson, attorneys ).
Mr. Eugene J. Fox, of the New Ycrk Bar, Corp. Coun-
sel for City of Yonkers, pro hac vice for defendant-inter-
venor ( Messrs. Schapira, Steiner & Walder, attorneys ).
Scurerer, J. S.C. The Hackensack Meadowlands
Development Commission (HMDC) and the State of New
Jersey, Department of Environmental Protection (DEP),
Al0 Appendix A-2
[163]
seek to enjoin the Municipal Sanitary Landfill Authority
(MSLA) from accepting for disposal in its landfill site
located within
the Hackensack Meadowlands District any solid wastes
originating from or collected outside the territorial limits
of New Jersey. Both HMDC and DEP had adopted regu-
lations, effective September 1, 1973 and August 31, 1973,
respectively, which prohibited such disposal.
An ad interim restraint, consented to by defendant,
had been entered pending determination of the request for
a permanent injunction. On the return date of the order to
show cause defendants answered by challenging the con-
stitutionality of the regulations and the Waste Control Act,
N. J. S. A. 13:11-1 et seq. The hearing was adjourned to
allow plaintiffs time to respond to the challenges. In the
meantime the City of Yonkers, New York, whose refuse
was being deposited on the MSLA site, moved for and was
granted leave to intervene as a party defendant. No testi-
mony was taken at the hearing. The parties relied on
affidavits and the transcript of proceedings taken before
the Hackensack Meadowlands Commission on June 18,
1973.
MSLA has made a three-fold attack. It contends that
(1) the Waste Control Act, regulation N. J. A. C. 7:26-1.5
promulgated thereunder, and certain regulations of
HMDC, namely, N. J. A. C. 19:7-1.1(g) and (h), are in-
valid, arbitrary and unreasonable; (2) the procedure fol-
lowed by DEP in promulgating its rule, N. J. A. C. 7:26-
1.5, violated due process of law, and (3) all the above
designated regulations and the Waste Control Act must
fall because they violate Article 1, Section 8, paragraph 3
(the Commerce Clause) and Article 4, Section 2 (the
Privileges and Immunities Clause), of the U. S. Consti-
tution.
Appendix A-2 All
I
The Waste Control Act, N. J. S. A. 13:1I-1 to 8, re-
cites that the Legislature found that the disposal of wastes
generated or collected outside the State poses a threat to
the quality of New Jersey's environment and that the Com-
missioner of Environmental Protection was empowered to
create
[164]
regulations prohibiting the “landfill of solid waste” and the
“disposal of liquid wastes” within the State which origi-
nated or were collected outside New Jersey. The Com-
missioner adopted Regulation N. J. A. C. 7:26-1.5, effective
August 31, 1973, which reads as follows:
Out of State waste
(a) No person engaged in the collection of solid
or liquid wastes shall dispose of any solid or liquid
wastes which originated or were collected outside the
territorial limits of this State in sanitary landfills in
the Hackensack Meadowlaads District.
(b) No person owning or operating a sanitary
landfill within the Hackensack Meadowlands District
shall accept for disposal in such sanitary landfill any
solid or liquid wastes which originated or were col-
lected outside the territorial limits of this State.
Defendant contends that there is no basis for the Legisla-
ture’s findings, that the regulation is invalid in the absence
of a showing of a causal relationship between banning out-
of-state garbage in New Jersey and a threat to its environ-
ment, and that the regulation is overly broad by banning
all wastes. The statute and the administrative regulations
are presumptively valid. Harvey v. Essex County Board
Al2 Appendix A-2
of Freeholders, 30 N. J. 381 (1959); Burton v. Sills, 53
N. J. 86 (1968); State v. Profaci, 56 N. J. 346 (1970).
Since one can reasonably and readily conceive of facts
which would support the Legislature’s findings and the
Commissioner’s regulations, the onus is on defendant to
establish that the Legislature’s and Commissioner's actions
are arbitrary. Consolidation Coal Co. v. Kandle, 105 N. !.
Super. 104 (App. Div. 1969), aff'd 54 N. J. 11 (1969);
Municipal Sanitary Landfill Authority v. Hackensack Mea-
dowlands Development Comm’n, 120 N. J. Super. 118
(App. Div. 1972); Borden’s Farm Products Co., Inc. v.
Baldwin, 293 U. S. 194, 55 S. Ct. 187, 79 L. Ed. 281
(1934). Defendant's proof consisted of an affidavit of an
engineer, Dennis L. Backus, and the transcript of proceed-
ings before the Hackensack Meadowlands Commission
held on June 18, 1973 with respect to its proposed regula-
tions. The affidavit asserts that quantities of solid
[165]
wastes are used for construction purposes and that there-
fore a complete ban on disposal of out-of-state solid wastes
is inappropriate. This conclusion does not necessarily fol-
low because no reference is made to the amount of New
Jersey refuse which is being used for landfill purposes, the
limited amount of area available, and the environmental
and public health impacts involved. Further, an affidavit
of Lino Pereira, the Principal Environmental Engineer of
DEP, asserts that sanitary landfills “present a pollution
danger because they do not conserve or recover resources
but bury them, and because they severely limit the future
use of the land on which they are located.” Additionally,
he avers that sanitary landfills present a unique fire prob-
lem. An affidavit of Bernhard V. Lind, Acting Chief of the
Bureau of Solid Waste Management in the DEP, asserts
EE
Appendix A-2 Al3
that of the 55,000 tons per week of solid waste being dis-
posed of in the Hackensack Meadowlands District, 10,000
tons originated outside New Jersey and there was an acute
shortage of remaining landfill life located there. In view
of all the foregoing, it is obvious that MSLA has not met its
burden.
The same type of attack has been made upon regula-
tions N. J. A. C. 19:7-1.1(g) and (h) of the HMDC. These
regulations read as follows:
19:7-1.1(g). No solid waste originating or col-
lected outside of the territorial jurisdiction of New
Jersey shall be disposed of or treated within the Hack-
ensack Meadowlands District. No sanitary landfill
operator shall accept for disposal, at a sanitary landfill
within the Hackensack Meadowlands District, any
solid waste originating or collected outside of the
territorial limits of New Jersey.
19:7-1.1(h). All operators of sanitary landfills
within the Hackensack Meadowlands District shall
submit to the Commission, tegether with their applica-
tions, as provided in Sections 3 and 4 of this sub-
chapter, a certification stating that no solid waste
originating or collected outside of the territorial limits
of New Jersey will be accepted for disposal or treat-
ment.
Defendant has made no showing that there was no basis
for these regulations. The affidavits of William D. Mc-
Dowell, Executive Director of HMDC, and George D.
Cascino, its
[166]
Chief Engineer, disclosed that three surveys had been made
to determine the volume and origin of solid waste disposed
of in landfills in the Hackensack Meadowlands District.
Al4 Appendix A-2
The first disclosed that in 1968 some 30,000 tons were
entering the District each week, of which 4,900 tons orig-
inated outside New Jersey. HMDC study in 1971 revealed
that the weekly tonnage was 42,000, of which 5,000
emanated from outside the State. In April 1973 HMDC
updated its study. At that time weekly tonnage had in-
creased to 55,000, of which 10,000 came from sources out-
side of New Jersey. The Commission concluded that the
sites had only three years of life remaining and that ban-
ning of out-of-state garbage would extend the landfill life
some six months.
Under the Hackensack Meadowlands Development
Act the Commission must provide disposal facilities for the
New Jersey municipalities (totalling 118, according to
plaintiffs ) which had been utilizing the District. N. J. S. A.
13:17-10(a), (b) and (e). The affidavits point out that
the Commission needs as much time as possible to develop
a viable alternate method of disposal. One cannot reason-
ably contend that promulgation of the regulations under
the totality of these facts and circumstances was arbitrary.
Defendant also argues that the HMDC regulations
contravene N. J. S. A. 13:17-6(w) and 13:17-10(b) and
(e) by failing to provide for disposal facilities for waste
equai to levels at the time the statute was passed, which
levels included out-of-state waste. N. J. S. A. 13:17-6(w)
authorizes HMDC “to provide solid waste disposal facilities
for the treatment and disposal of solid waste, as hereinatter
provided.” N. J. S. A. 13:17-10 reads:
(a) Within 6 months of the effective date of this
act the commission shall undertake and complete a
survey of the district to determine the total amount of
solid waste treated and disposed on a daily basis in
the district as of the effective date of this act by per-
sons in this State.
Appendix A-2 Al5
(b) The commission is hereby authorized, em-
powered and directed to guarantee that solid waste
disposal facilities sufficient to treat and
[167]
dispose of the total amount of solid waste determined
by its survey shall be available or be provided by the
commission.
(e) The commission, in its discretion, may pro-
vide solid waste disposal facilities sufficient to treat
and dispose of more than the total amount of solid
waste determined by its survey, and may make such
facilities available to persons other than those treating
and disposing of solid waste in the district as of the
effective date of this act. [Emphasis added]
Defendant reads these three sections together as guarantee-
ing continued use to all persons utilizing the disposal facili-
ties in the Meadowlands at the time the act was passed. To
interpret the statute in that way, however, one must delete
the last three words in subsection (a). The inclusion of
those words, “in this State,” demonstrates that the Legis-
lature was concerned about waste collected in New Jersey.
If it intended to include all waste disposed of in the
Meadowlands no matter where its origin, the phrase, “in
this State” would not have been inserted, since, obviously,
garbage dumped in the Meadowlands is dumped in this
State. One must assume in interpreting a statute that the
legislators would not insert a redundant or meaningless
phrase. The only significance in these words is that the
referring to the “total amount of solid waste determined by
its [the Commission’s] survey,” are concerned with the
Al6 Appendix A-2
total amount of garbage disposed of in the Meadowlands
by persons in this State, i.e., the total amount of New Jersey
waste dumped in the Meadowlands. This is the only
sensible interpretation. The concern of the New Jersey
Legislature was to safeguard the area for New Jersey op-
erations—not New York, Pennsylvania, or other jurisdic-
tions. As Justice Jacobs wrote in J. C. Chap. Prop.
Owners’, etc., Ass'n v. City Council, 55 N. J. 86 (1969):
When all is said and done, the matter of statutory
construction here will not justly turn on literalisms,
technisms or the so-called formal rules of interpreta-
tion; it will justly turn on the breadth of the objectives
of the legislation and the commonsense of the situa-
tion. [at 100]
[168]
To the same effect: State v. New Jersey National Bank and
Trust Co., 62 N. J. 50 (1972). Defendant's contention that
the regulations contravene the enabling statute is unsound
for the statute mandates only that the Commission guar-
antee disposal facilities for New Jersey communities utiliz-
ing the landfill sites as of the effective date of the act.
II
Defendant attacks the procedure followed by the
DEP in adopting N. J. A. C. 7:26-1.5, claiming that the
failure to hold a hearing prior to adoption of the rule
denied defendants due process. This contention has no
merit. Plaintiff DEP caused the proposed regulation to
be published in the New Jersey Register on July 5, 1973,
with the statement that “interested persons may present
statements or arguments in writing relevant to the pro-
posed action on or before August 3, 1973.” 5 N. J. R.
220(c). This notice was consistent with the Adminis-
Appendix A-2 AlT7
trative Procedure Act, N. J. S. A. 52:14B-1, et seq., and
complied with N. J. S. A. 52:14B-4(a)(2), affording any
interested person a reasonable opportunity to be heard.
Defendant concedes that the act does not require a formal
hearing and that it did not submit a statement or request
a hearing. The uncontroverted statement in the affidavit
of Mr. Lind is that no written statement or argument was
received by DEP from any interested person. Under these
circumstances there was no constitutional or statutory re-
quirement that a hearing be held prior to the promulga-
tion of the regulations. Motyka v. McCorkle, 58 N. J. 165
(1971).
Ill
There remains defendant’s constitutional challenges.
i.e., that the DEP and HMDC regulations set forth above
violate Article I, Section 8, paragraph 3 (Commerce Clause)
and Article IV, Section 2 (Privileges and Immunities
Clause) of the U. S. Constitution. (Defendant has not
[169]
argued the Waste Control Act\is unconstitutional). De-
fendant has not vigorously advanced its argument with
respect to Article IV, Section 2, and it is not necessary to
deal with that contention in depth. Suffice it to say there
are serious infirmities in that position, such as the fact that
it is not applicable to corporations and that it only applies
where there is no substantial reason for the discrimination.
Peul v. Virginia, 8 Wall. 168, 75 U. S. 168, 19 L. Ed. 357
(1868); Hemphill v. Orloff, 277 U. S. 537, 48 S. Ct. 577,
72 L. Ed. 978 (1928); Toomer v. Witsell, 334 U. S. 385, 68
S. Ct. 1156, 92 L. Ed. 1460 (1948).
Article I, Section 8, provides that “Congress shall have
power ° ° ° to regulate commerce ° ° ° among the several
States *° * *.” DEP and HMDC contend that garbage is
not a legitimate subject of trade or comr serce and therefore
A18 Appendix A-2
not within the purview of the Commerce Clause. They
rely upon a number of cases which recognize the power of
a state to forbid the sale or importation of impure foods or
such articles as would spread disease and pestilence and
would be immediate causes of destruction of or injury to
human health and life. A state’s prohibition of the inter-
state transportation of diseased animals has been held not
to contravene the Commerce Clause. Clason v. Indiana,
306 U. S. 439, 59 S. Ct. 609, 83 L. Ed. 858 (1939). Simi-
larly, “statutes forbidding the importation and sale of
adulterated or injurious food or drugs have withstood con-
stitutional attacks. Crossman v. Lurman, 192 U. S. 189,
24 S. Ct. 234, 48 L. Ed. 401 (1904); Price v. Illinois, 238
U. S. 446, 35 S. Ct. 892, 59 L. Ed. 1400 (1915). In Sligh
v. Kirkwood, 237 U. S. 52, 35 S. Ct. 501, 59 L. Ed. 835
(1915), a Florida statute prohibiting the exportation of
fruits which were unfit for human consumption was held
valid. All these cases classified the matter (diseased ani-
mals, adulterated food, fruit unfit for human consumption )
as nonmerchantable. In all the food and drug cases the
articles were banned to protect the public from mistaking
them for pure and wholesome foods and to prevent the
spread of disease. The articles in-
[170]
volved had no useful purpose and were per se dangerous
to health. On the other hand, refuse may be utilized for
construction, landfill, recycling of paper, bottles and metal,
and production of electricity. In passing, it might be
noted that some successful incinerator systems which cre-
ate waste heat for power generation exist in Germany, the
Netherlands, France and Switzerland. In the instant situ-
ation there is no prohibition against the transportation of
out-of-state garbage in or through New Jersey or the dis-
Appendix A-2 Al9
posal of such refuse in New Jersey landfill sites located in
places other than the Hackensack Meadowlands District.’
the danger to public health due to transportation
in New Jersey or location of the garbage in a
licensed landfill site in the State which is the evil that the
Waste Control Act and the regulations are directed at.
The purpose is conservation of the iand used for disposal
sites in the Hackensack Meadowlands District so that their
life expectancy will be extended from 3 to 3% years. In
any event, the regulations in question here which are
directed to the restricted use of sites for New Jersey gar-
bage cannot be sanctioned on the concept that garbage is
not a legitimate subject of interstate commerve.
[171]
It is well established that a state may, in the exercise
2+
L. Ed. 878 (1898); Sligh v. Kir supra.; Yellow Cab
A20 Appendix A-2
Co. of Camden v. State, 126 N. J. Super. 81 (App. Div.
1973), certif. den. 64 N. J. 498 (1974).
The Federal Government has not adopted legislation
dealing with the use of waste landfill sites. Further, the
regulations and statute in question are clearly within the
authority of the State’s police power to conserve its landfill
sites. It has been recognized that the dumping of garbage
in a landfill is an unattractive and undesirable use of land
and that it creates potential health and fire hazards. In
Shaw v. Byram Tp., 86 N. J. Super. 598 (App. Div. 1965),
Judge (now Justice) Sullivan wrote:
* * * Garbage or refuse is unsightly, smelly, at-
tracts flies and rodents, and is a potential fire hazard.
It is a prime source of disease and contamination. It
has been called a necessary evil because it is a by-
product of civilized society. Ordinarily, some provi-
sion is made for its collection and disposal by the local
government. However, problems of public health
and welfare are involved, and no matter how care-
fully regulated, garbage dumps present some hazard
to a community, the degree of hazard being directly
related to the amount of garbage dumped. [at 602]
In Municipal Sanitary Landfill Authority v. Hackensack
Meadowlands Development Comm'n, Judge Lynch ap-
proved the Commission’s finding that:
Sanitary landfills conducted on virgin land for-
ever ruin the possibility of preserving the site for con-
servation. Additionally, such landfill operations can
have an adverse effect on the ecological balance of
the surrounding area. A sanitary landfill operation
also has severe limiting effects on future development
of the property. Problems of settlement, gas genera-
tion, and fires make it difficult to construct structures
on former landfill sites. [120 N. J. Super. at 122]
Appendix A-2 A21
[172]
However, state regulations and laws based on the
exercise of the police power may only stand if they do not
discriminate against interestate commerce. In other words,
the exercise of the police power may not be predicated on
a method directed against interstate commerce. Plaintiffs
concede that this is so. This nondiscrimination principle
has been expounded in several United States Supreme
Court decisions. In Huron Portland Cement Co. v. De-
troit, 362 U. $. 440, 80 S. Ct. 813, 4 L. Ed. 2d 852 (1960),
the City of Detroit had passed an ordinance which limited
the permissible amount and density of smoke emissions
from the boiler stacks of vessels while docked in the city.
Huron Portland Cement Co., a Michigan corporation
whose ships travelled among several states via the Great
Lakes, challenged the code as an unlawful interference
with interstate commerce. The court held that the ordi-
nance was a valid exercise of the state’s police power since
it applied generally to all ships and did not discriminate in
favor of local industry. Mr. Justice Stewart wrote:
#* * State regulation, based on the police power,
which does not discriminate against interstate com-
merce or operate to disrupt its required uniformity,
may constitutionally stand. Hennington v. Georgia,
163 U. S. 299, 16 S. Ct. 1086, 41 L. Ed. 166; Lake
Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 19 S. Ct.
465, 43 L. Ed. 702; Pennsylvania Gas Co. v. Public
Service Com. 252 U. S. 23, 40 S. Ct. 279, 64 L. Ed. 434
[PUR 1920E 18]; Milk Control Bd. v. Eisenberg Farm
Products, 306 U. S. 346, 59 S. Ct. 528, 83 L. Ed. 752;
Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28, 68
S. Ct. 358, 92 L. Ed. 455.
° ° °
A22 Appendix A-2
It has not been suggested that the local ordi-
nance, applicable alike to “any person, firm or corpo-
ration” within the city, discriminates against interstate
commerce as such. It is a regulation of general ap-
plication designed to better the health ‘and welfare of
the community. °° ° We conclude that no imper-
missible burden on commerce has been shown. [at
448, 80 S. Ct. at 818].
In S. C. Hwy. Dept. v. Barnwell Bros. Inc., 303 U.S. 177
58 S. Ct. 510, 82 L. Ed. 1522 (1938), Mr. Justice Stone, in
upholding a state law which limited the width and load of
trucks on state highways, wrote:
[173]
The commerce clause by its own force, prohibits
discrimination against interstate commerce, whatever
its form or method, and the decisions of this Court
have recognized that there is scope for its like opera-
tion when state legislation nominally of local concern
is in point of fact aimed at interstate commerce, or by
its necessary operation is a means of gaining a local
benefit by throwing the attendant burdens on those
without the state. Robbins v. Shelby County Taxing
District, 120 U. S. 489, 498, 30 L. Ed. 1189; Caldwell
v. North Carolina, 187 U. S. 622, 626, 47 L. Ed. 336.
It was to end these practices that the commerce clause
was adopted.
In Guy v. Baltimore, 100 U. S. 434, 25 L. Ed. 743 (1879),
a Maryland statute authorized Baltimore to collect
wharfage fees from all vessels which docked in city
wharves, provided that the material to be loaded or un-
loaded was not produced in Maryland. The city adopted
an ordinance accordingly. The court commented:
Appendix A-2 A23
In the exercise of its police powers, a State may
exclude from its territory, or prohibit the sale therein
of any articles which, in its judgment, fairly exercised,
are to the health or which would endanger
the lives or property of its people. But if the State,
under the guise of exerting its police powers, should
make such exclusion or prohibition applicable solely
to articles, of that kind, that may be produced or
manufactured in other States, the courts would find
no difficulty in holding such legislation to be in con-
flict with the Constitution of the United States. [at
443]
The court invalidated the ordinance on the ground that:
* © * no State can, consistently with the Federal
Constitution, impose upon the products of other
States, brought therein for sale or use, or upon citizens
because engaged in the sale therein, or the transporta-
tion thereto, of the products of other States more
onerous public burdens or taxes than it imposes upon
the like products of its own territory. [at 439]
The court also indicated that the wharves were property
held for public use by the municipality, which could not
“be permitted by discrimination to impede commercial
intercourse. That property held for public use may not
be limited on a discriminatory basis has peculiar perti-
nence here. The New Jersey Legislature has deemed it
appropriate to classify op-
[174]
erations of garbage landfill sites as public utilities. N. J.
S. A. 48:2-13. As such they would appear to be affected
with a public interest as much as a municipally owned
wharf. It might be noted that the State has expressly pro-
A24 Appendix A-2
hibited a public utility from directly or indirectly making
or giving “any undue or unreasonable preference or ad-
vantage to any person, locality or particular description of
traffic, or subject any particular person, locality or par-
ticular description of traffic to any prejudice or disad-
vantage.” N. J. S. A. 48:3-4.
DEP and HMDC rationalize that discrimination is
absent because the regulations do not prefer New Jersey
over out-of-state landfill operators or garbage haulers. The
difficulty with that rationale is that it is the discrimination
based on the origin of the refuse, not the residence of the
owner or carrier, which is invidious. Transportation of the
refuse, whether carried by New Jerseyans or nonresidents,
in interstate commerce is directly affected by the ban.
Although the State’s objective in attempting to con-
serve a local natural resource for local needs is a proper
police power purpose, that cannot be accomplished by
discrimination based on the source of the refuse. In Penn-
sylvania v. West Virginia, 262 U. S. 553, 43 S. Ct. 658, 67
L. Ed. 1117 (1923), a West Virginia statute restricted the
exportation of natural gas to ensure a sufficient supply for
its own citizens. Although the Supreme Court recognized
(at 598, 43 S. Ct. at 665) that “the gas is a natural product
of the state and has become a necessity therein, that the
supply is waning and no longer sufficient to satisfy local
needs and be used abroad, and that the act is therefore a
legitimate measure of conservation in the interest of people
of the state,” the statute had to fall because it interfered
with interstate commerce.
Oklahoma enacted a law which prevented a pipeline
company from transporting natural gas outside the state.
The purpose of the law was to conserve natural gas in the
Oklahoma fields for consumption in the state. In declaring
the statute violative of the Commerce Clause, the U. S.
Supreme
Appendix A-2 AD
[175]
Court, in West v. Kansas Natural Gas Co., 221 U. S. 229,
31 S. Ct. 564, 55 L. Ed. 716 (1911), commented:
° * © The statute of Oklahoma recognizes it to
be a subject of intrastate commerce, but seeks to
prohibit it from being the subject of interstate com-
merce, and this is the purpose of its sisson Da
rds, the purpose of its conservation a
a saiddineedli-is business welfare of the State,
as coal might be, or timber. Both of those products
may be limited in amount, and the same consideration
of the public welfare which would confine gas to the
use of the inhabitants of a State would confine them
to the inhabitants of the State. If the States have such
power a singular situation might result. Pennsylvania
might keep its coal, the Northwest its timber, the min-
ing States their minerals. And why may not the
products of the field be brought within the principle?
Thus enlarged, or without that enlargement, its in-
fluence on interstate commerce need not be pointed
out. To what consequence does such power tend?
If one State has it, all States have it; embargo may be
retaliated by embargo, and commerce will be halted
at state lines. And yet we have said that “in matters
of foreign and interstate commerce there are no state
lines.” In such commerce, instead of the States, a new
appears and a new welfare,—a welfare which
transcends that of any State. But rather let us say it
is constituted of the welfare of all of the States and
that of each State is made the greater by a division
of its resources, natural and created, with every other
State, and those of every other State with it. This
was the purpose, as it is the result, of. the interstate
commerce clause of the Constitution of the United
A26 Appendix A-2
States. If there is to be a turning backward it must be
done by the authority of another instrumentality than
a court. [at 255, 31 S. Ct. at 571]
The Commissioner of Environmental Protection and
the Hackensack Meadowlands Development Commission
adopted the regulations in question to expand the life of
the landfill sites for garbage collection in the Hackensack
Meadowlands District from 3 to 3% years. To attempt to
accomplish that end by discriminating against sources of
refuse solely because they originate or are collected outside
the State under the circumstances here contravenes Article
I, Section 8, Clause 3 of the U. S. Constitution. The regu-
lations are invalid.
Appendix A-3 A27
APPENDIX A-3.
[68 N. J. 451, 348 A. 2d 505 (1975)]
[451]
HACKENSACK MEADOWLANDS DEVELOPMENT
COMMISSION and State of New Jersey Department
of Environmental Prot»ction, Plaintiffs-Appellants,
MUNICIPAL SANIT. ARY LANDFILL AUTHORITY et
al., Defendants-Respondents,
and
City of Yonkers, New York
Defendant-Intervenor-Respondent
CITY OF PHILADELPHIA, etc., et al.,
Plaintiffs-Respondents,
and.
ohn P. Fazzio Landfill, Inc., t/a John P. Fazzio Landfill
' Co., et al., Plaintiffs-Intervenors-Respondents,
STATE of New Jersey et al., Defendants-Appellants.
Supreme Court of New Jersey.
Argued Dec. 2, 1974.
Decided Nov. 18, 1975.
(455).
Mr. Stephen Skillman, Assistant Attorney General,
argued the cause for defendants-appellants (Mr. William
F. Hyland, Attorney General of New Jersey, attorney;
Mr. Skillman, of counsel; Mr. Mark L. First, Deputy At-
torney General, on the brief).
A28 Appendix A-3
Mr. Herbert F. Moore argued the cause for plaintiffs-
respondents, City of Philadelphia, etc., et al (Messrs.
Jamieson, Walsh, McCardell, Moore and Peskin, attorneys;
Mr. Moore, of counsel; Mr. Arthur Meisel, on the brief).
Mr. Vincent J. Dotoli argned the cause for plaintiffs-
intervenors-respondents, John P. Fazzio, Inc., t/a John P.
Fazzio Landfill Co., et al.
Mr. David Samson argued the cause for defendants-
respondents, Municipal Sanitary Landfill Authority, etc.
(Messrs. Leib, Wolff and Samson, attorneys).
Mr. Stephen Skillman, Assistant Attorney General,
argued the cause for plaintiffs-appellants (Mr. William F.
Hyland, Attorney General of New Jersey, attorney; Mr.
Skillman, of counsel; Mr. Mark L. First, Deputy Attorney _
General, on the brief).
The opinion of the Court was delivered by
Mounta, J.
These proceedings involve the joint review of two
separate cases. In one case the judgment was entered
pursuant to an opinion rendered in Hackensack Meadow-
lands Development Commission v. Municipal Sanitary
Landfill Authority, 127 N. J. Super. 160, 316 A. 2d 711 (Ch.
Div. 1974). In the other, judgment was entered following
the rendition of an oral opinion in a suit brought by the -
City of Philadelphia, together with the owners of several
landfill operations in South Jersey, against the State of New
Jersey and its Department of Environmental Protection
(DEP). The [456] cumulative effect of these two judg-
ments was to render unconstitutional certain sections of the
Waste Control Act, N. J. S. A. 13:11-1 et seq., together
with regulations promulgated by DEP and by the Hacken-
sack Meadowlands Development Commission (HMDC).
The measures declared unconstitutional had as their pur-
——e
Appendix A-3 A29
the exclusion from this State of solid waste originating
‘auahinn In each suit the trial court found that the laws
and regulations under review violated the Commerce
Clause, Article 1, §8, clause 3, of the United States
Constitution. Bees
l
A30 Appendix A-3
thorized and directed [457] the DEP to promulgate rules
and regulations “prohibiting . . . the incineration or land-
fill of solid waste and the treatment or disposal of liquid
wastes within the State which originated or were collected
outside the territorial limits of the State.” N. J. S. A. 13:11-
4. Both HMDC and DEP promulgated regulations re-
sponsive to these legislative enactments, all looking to bar
the importation of solid and liquid waste from outside
the State.’
1. (Cont'd. )
the State, exept guibege to be fed to ontns Sp Sop Sian 0 ew
ersey, until commissioner [Commissioner of Environmental
ection] shall determine that such action can be permitted with-
out endangering the public health, safety and welfare and has pro-
vision shall be subject to the penal enforcement provisions
the “Waste Control Act.” P. L. 1973. c. 39. [N. J. S. A. 13:1I-10]
2. The pertinent portions of the HMDC regulations, which
became effective September 1, 1973, reads as follows:
\S) 1 wetottaton 6 Nie tee Oe te Get oe
territorial jurisdiction ew disposed or
wentee ee oe eee ae es Set. Ta eeae-
operator s rays at a sanitary
lari within the Hackensack 1d eadbes og Aen dhac ee
waste originating or collected outside of the territorial limits of
New Jersey.
(h i ies landfills within the Hacken-
sack Meadowlands District submit to the Commission
[Hackensack Meadowlands Dev ent Commission] . . .
a certification stating that no solid waste originating or col-
lected outside of the territorial limits of New J will be
accepted for disposal or treatment. [N. J. A. C. 19:7-1.1]
The on of the DEP in its t form became effective
Felwuary 11014 tnd vento as SO
(a) No person shall bring into this State, or accept for dis-
posal in this State, any solid or <2 waste which originated
or was collected outsi the toxtiotial Ikohe ef Gan aeas This
Section shall not apply to:
1. Garbage to be fed to swine in the State of New Jersey;
2. Any separated waste mat including newsprint,
paper, wut and metals, that ts SS. materials
Appendix A-3 ASI
[458]
In order to enforce these statutes and rules HA te
DEP filed a complaint seeking permanen
rg gr gee
MSLA) * from accepting for disposal at its landfill sites any
solid waste originating or collected outside of the States
territorial borders.* At the same time, with the consent
A32 Appendix A-3
then using an MSLA site to dispose of its municipal refuse.
No testimony was taken; the parties relied on affidavits
and the transcript of previous [459] proceedings before
the Hackensack Meadowlands Commission. In February,
1974, the trial judge filed a written opinion declaring the
DEP and HMDC regulations to be in contravention of the
Commerce Clause of the United States Constitution and
therefore invalid. Hackensack Meadowlands Develop-
ment Commission v. Municipal Sanitary Landfill Au-
thority, supra, 127 N. J. Super. 160, 316 A. 2d 711 (Ch.
Div. 1974). Judgment was temporarily stayed and on
March 26, the Appellate Division granted plaintiffs’ motion
for a further stay pending determination of the appeal.
Upon application by plaintiffs, this Court granted certifica-
tion while the appeal was pending unheard in the Appel-
late Division, R. 2:12-2, 66 N. J. 337 (1974).
In January, 1974, in a separate plenary suit, the City
of Philadelphia, together with other plaintiffs mentioned
above, filed a complaint seeking a declaration that the
Waste Control Act, as well as the regulations promulgated
pursuant thereto, violated the Constitutions of both the
United States and the State of New Jersey, and further
seeking temporary and permanent injunctive relief re-
straining DEP from enforcing the statutory provisions and
from adopting or enforcing regulations intended to be in
furtherance of the statutory purpose. On March 25, 1974
the trial judge (not the judge who had heard the Hacken-
sack Meadowlands case), on cross-motions for summary
judgment, rendered an oral opinion declaring that
N. J. S. A. 13:1I-9 and 10 effected an improper discrimina-
tion against interstate commerce and were hence uncon-
stitutional. Following the filing of a notice of appeal to
the Appellate Division, N. J. 102, 335 A. 2d 55 (1974),
and the two actions were brought on for argument and .
disposition before us at the same time.
Appendix A-3 A33
We thus face an issue of major public importance,
namely, whether the regulations and statutes under review,
to meet a pressing emergency in the life of the
State, are of [460] such a nature as to violate the Com-
merce Clause, Article I, § 8, clause 3, of the United States
Constitution.’
Il
The Court is acutely aware of the solid waste disposal
problem which now exists in the State of New Jersey.
Very recently we recognized that it had reached “crisis
Mayor and Council of the Township of Ocean, 64 N. '
the two cases now before this Court,
of HMDC, July 1, 1968, three surveys have been con-
ducted to determine the volume and origin of the solid
waste disposed of in the landfills located within HMD. The
first survey, mandated by N. J. S. A. 13:17-10(a), found
that in 1968 approximately 30,000 tons of solid waste
entered HMD each week, of which about 4,000 tons origi-
A34 Appendix A-3
ducted in 1971, indicated that the total volume of solid
waste disposed of in the District had risen to 42,000 tons
per week, 5,000 tons of which originated outside of the
State. The latest survey, conducted in 1973, revealed
further increases to total weekly deposits of 55,000 tons of
[461] solid waste, of which about 10,000 tons came from
out of state.°
On the basis of the 1973 survey, it was estimated by
HMDC that the existing landfill sites within HMD had a
useful life of about three years, but that a ban on out-of-
state refuse would extend their availability by approxi-
mately six months. Since the adoption of the ban on out-
of-state dumping, the HMDC revised its estimates of the
remaining life of the landfills within the HMD. It was cal-
culated that as of January 1, 1974, sanitary landfills within
that area had a total life expectancy of about 38 months if
the ban were to be continued, but an availability of only
26 months if the ban were to be lifted. Furthermore,
there is little chance of reducing the volume of garbage
being dumped in the HMD which originates within the
State, for the reason, among others, that the Commission
has become obligated by statute, N. J. S. A. 13:17-10, to
provide solid waste disposal facilities for over 100 New
Jersey municipalities.
State-wide, the picture appears much the same. It
was estimated that in 1971 over 40,000 tons of solid waste
originating out of state was being buried each week in the
340 sanitary landfills then existing within the State. DEP
estimated that in that year 1.5 million tons of solid waste
originating outside of the State was buried in New Jersey.
DEP has also recently computed the total life of the exist-
ing sanitary landfill facilities to be about three years in
northern New Jersey and approximately ten years in the
6. It was determined that about 6,700 of the 10,000 tons were
being disposed of in the three MSLA sites.
Appendix A-3 A35
southern part of the State. It has also been estimated that
a state-wide prohibition on solid waste originating else-
where would lengthen the state-wide landfill life by
approximately 8%, with the increase in some specific land-
fills being as high as 50 to 100%.
Compounding the shortage problem are other ex-
tremely important environmental considerations. Many
existing land- [462] fills within the State are located within
ecologically sensitive areas, such as floodplains, wetlands,
or on State-owned public trust tidelands. The operation
of landfills now located in these areas may have to be
limited or discontinued. An example of this is the action
taken by HMDC in preserving some 1,500 acres of virgin
wetlands which had formerly been tentatively designated
for use as landfill sites. Further actions of a similar nature
tential lifespans of such existing facilities.
To obtain a more comprehensive picture of the prob-
lem now facing this State, we have taken judicial notice of
another report, released in 1972, which has further docu-
mented the crisis in this area.’ According to tLis report,
projected rate of dumping, all land that is presently com-
mitted to landfill operations will be exhausted by 1982.
Also recognized is the strong probability that other en-
vironmental considerations may further limit the use for
landfill purposes of much of the existing allocated acreage.
Moreover, the HMD is singled out as an area where “[a]
a a eer ae beds ond
taking ....” The report estimated |
SEE tie cuit ch oats aeahabhs bor lana ta the
‘ New and Municipal Government
nade Comabitien aste: A Approach (1972).
A36 Appendix A-3
Meadowlands would be exhausted, an estimate very simi-
lar to those made by the HMDC and noted earlier in this
opinion.
We are also aware that very little has yet been done
in any really effective way—on either a national or an
interstate level to achieve a satisfactory solution to this
pressing problem. The scope of federal legislation is thus
far quite limited. The Solid Waste Disposal Act, 42
U. S. C. A. §3251 et seq., originally provided only for
“financial and technical [463] assistance and leader-
ship . . .” to develop new methods to reduce the volume
of waste and to provide for economical methods of dis-
posal, 42 U. S.C. A. § 3251(a)(6). The Resource Recov-
ery Act of 1970 amended the Solid Waste Disposal Act to
provide financial assistance for the construction of solid
waste disposal facilities and to furnish technical and finan-
cial assistance to promote and develop new methods of
resource recovery. See, e.g.,42 U.S.C. A. §§ 3251(b)(1),
3254b. Although the Act as it now reads also provides for
the encouragement of interstate cooperation to resolve the
waste disposal problem, 42 U. S. C. A. §§ 3254, 3254a,
nothing has been brought to our attention to indicate that
New Jersey has entered into any agreement with her neigh-
boring states of New York and Pennsylvania looking to -
this end.°
8. In 1970, the Tri-State T Commission [Con-
necticut, New York, and New Jersey] published entitled
Appendix A-3 A37
At the State level there has been more significant ac-
tivity. In 1970 the Bureau of Solid Waste Management
of DEP published the New Jersey State Solid Waste Man-
agement Plan, which, among other proposals, recom-
mended the creation of “Solid Waste Management Dis-
tricts.”* The Solid Waste Management Plan has been
approved by the Federal En tal Protection Agency
as the official State plan for New Jersey.
Before the release of the New Jersey Plan in 1970, the
Legislature had enacted the “Incinerator Authorities Law,”
[464] N. J. S. A. 40:66A-1 et seq., delegating to municipal-
ities the authority to provide solid waste collection and dis-
posal facilities on a local basis. Prior thereto, in 1968, the
“Solid Waste Management Authorities Law” had been
enacted, N. J. S. A. 40:66A-32 et seq., permitting the gov-
erning bodies of one or more municipalities to create solid
waste management authorities to construct and operate
incinerators and other solid waste treatment facilities.
1970, the year DEP released its New Jersey Plan, saw three
further related enactments by the Legislature. The “Solid
Waste Utility Control Act,” N. J. S. A. 48:13A-1 et seq.,
recognizing the need for state-wide control over the solid
waste industry, provided that the Board of Public Utility
Commissioners assume the duties of “regulating [the]
economic aspects of solid waste collection, disposal and
utilization service ....” N. J. S. A. 48:13A-2. The “County
Solid Waste Disposal Financing Law,” N. J. S. A. 40:66A-
31.1, et seq., took note of the fact that the cost of construct-
ing disposal facilities would be prohibitive for many
municipalities, and delegated to counties the authority to
The Plan recommended either a “maximum landfill
or a “maximum incineration strategy,” depending on the
Cay od uanatt weed ences.
A38 Appendix A-8
purchase or construct such facilities within the county
“either alone or jointly with any municipality.” N. J. S. A.
40:66A-31.4(1). Finally, the “Solid Waste Management
Act,” N. J. S. A. 13:1E-1 et seq., provided DEP with the
authority to “supervise solid waste collection and disposal
facilities or operations,” and to plan all future facilities hav-
ing in mind that they should conform to “reasonably con-
templated development of comprehensive community or
regional solid waste collection and disposal facilities and
operations and to any State-wide, regional, county and
intercounty plans for solid waste management,” N. J. S. A.
13:1E-4. These statutes are in addition to the Hackensack
Meadowlands Reclamation and Development Act and the
Waste Control Act that are earlier discussed above.
Supplementing these statutory provisions, the HMDC
has recently announced blueprints to phase out all dump-
ing [465] in the Meadowlands by 1979. It is currently
planning to construct a-baling plant to compact waste into
solid, nonflammable building blocks that may then be used
as the base of a 2,000 acre meadowlands park located
upon existing landfill sites. Also projected is a resource-
recovery plant.
Assuming that plans such as these formulated by the
HMDC are implemented within the proposed time period,
it is entirely reasonable to forecast that the extension of the
lifespan of existing landfills, resulting from the exclusion
of out-of-state waste, may be of crucial importance in pre-
venting further virgin wetlands or other undeveloped lands
from being devoted to landfill purposes. Increasing the
lifespan of the HMDC landfills would also alleviate future
pressure on other landfills located throughout the State,
to accept waste now handled by HMDC, thereby prevent-
ing any acceleration of their depletion and preserving
Appendix A-3 A39
lands in other areas of the State from becoming disposal
areas.*°
Ill
It is in the light of these facts and with a full realiza-
tion of the magnitude of the problem, that we address
ourselves to the issue as to whether or not the statutes aad
regulations under attack must fall because they are found
to constitute an impermissible burden upon interstate
commerce. In both cases now before us the State pre-
liminarily contends that the question of the significance
of the burden should not be reached, as the movement of
garbage [466] and refuse, things not of commercial value
and harmful to the health and welfare of the citizens of the
A40 Appendix A-3
Bowman v. Chicago & Northwestern Ry. Co., 125 US.
465, 8 S, Ct. 689, 31 L. Ed. 700 (1888):
* * * Doubtless the States have power to provide by
law suitable measures to prevent the introduction into
the States of articles of trade, which, on account of
their existing condition, would bring in and spread
disease, pestilence, and deati, such as rags or other
substances infected with the germs of yellow fever
or the virus of smallpox, or cattle or meat or other
provisions that are diseased or decayed, or otherwise,
from their condition and quality, unfit for human use
or consumption. Such articles are not merchantable;
they are not legitimate subjects of trade and com-
merce. They may be rightly outlawed as intrinsically
and directly the immediate sources and causes of de-
struction to human health and life. The self-protect-
ing power of each State, therefore, may be rightly
exerted against their introduction, and such exercises
of power cannot be considered regulations of com-
merce prohibited by the Constitution. [125 U. S. at
489, 8 S. Ct. at 700, 31 L. Ed. at 708]
Accord, Baldwin v. Seelig, 294 U. S. 511, 525, 55 S. Ct.
497, 79 L. Ed. 1032, 1039 (1935); Sligh v. Kirkwood, 237
U. S. 52, 59-60, 35 S. Ct. 501, 59 L. Ed. 835, 838 (1915).
See Crossman v. Lurman, 192 U. S. 189, 196-97, 24 S. Ct.
234, 48 L. Ed. 401, 404 (1904); Plumley v. Massachusetts,
155 U. S. 461, 468, 472, 15 S. Ct. 154, 39 L. Ed. 223, 295,
[467] 227 (1894). Also pertinent to the proposition that
garbage or refuse is not an article of interstate commerce
is the decision in Clason v. Indiana, 306 U. S. 439, 59 S.
Ct. 609, 83 L. Ed. 858 (1939). That case involved the
validity of an Indiana statute which required that within
24 hours after the death of certain large animals, the own-
--
Appendix A-3 A4l
d burn or the carcasses or deliver them to a
pba a a Seem to do business within the state.
Transportation for disposal to points outside the state was
prohibited. 306 U. S. at 441, 59 S. Ct. 609, 83 L. Ed. at
860. The Supreme Court, after recognizing that the pur-
pose of the statute was not discriminatory, but rather to
promote the health of the people, concluded that no im-
permissible burden on interstate commerce had been
shown to exist or as likely to occur. Id. at 444, 59 S. Ct.
609, 83 L. Ed. at 862.
The teaching of these cases seems to be that com-
modities or substances injurious to the public health are
not “articles of commerce” within the meaning of the con-
stitutional phrase. Their lack of market value coupled with
their immediate threat to human health dictates that such
substances not be afforded the protection of the Commerce
Nevertheless, refuse or solid waste may have intrinsic
value of its own. As the trial judge noted in Hackensack
Meadowlands, “. . . refuse may be utilized for construc-
tion, landfill, recycling of paper, bottles and metal, and
production of electricity.” 127 N. J. Super. at 170, 316
A. 2d at 716. Based on this factor, that court concluded
that “the regulations in question here which are directed
to the restricted use of sites for New Jersey garbage cannot
be sanctioned on the concept that garbage is not a legiti-
mate subject of interstate commerce.” Id. We readily
recognize that modern technology is such that certain types
of solid waste may have legitimate market value for re-
cycling or other purposes. We therefore agree with the
decision below, insofar as the HMDC regulations are con-
cerned, that they cannot be sustained on the theory that no
item of interstate commerce [468] is involved, as these
A42 Appendix A-3
regulations do clearly attempt to exclude from the HMD
even those types of wastes which may have some poten-
tiality of useful renewal.
The amendments to the Waste Control Act, N. J. S. A.
13: 11-9 and 13:11-10," totally banning the disposal of solid
waste originating out-of-state, also fail to make any pro-
vision for excepting those types of solid waste which may
be renewed. Nevertheless, as we have pointed out, the
DEP regulations, issued in response to this legislation, do
except from the ban on out-of-state refuse those types of
solid waste which may have a value for recycling or for use
as fuel.” In view of the confining effect of this latter
regulation, it is clear that an argument challenging the
validity of the Waste Control Act on Commerce Clause
grounds, unlike the argument challenging the HMDC
regulations, cannot be premised on the existence here of
“merchantable” items or legitimate “articles of trade,” as
those wastes which can be put to effective use are ex-
plicitly excepted from the ban. Any assertion that the
Commerce Clause applies here must therefore rest on
the proposition that the mere transportation and disposal
of valueless waste between states constitutes interstate
commerce within the meaning of the constitutional pro-
vision. :
A short time ago, in United States v. Pennsylvania
Refuse Removal Ass‘n., 242 F. Supp. 794 (E. D. Pa. 1965),
aff d, 357 F. 2d 806 (3d Cir.), cert. denied, 384 U. S. 961,
86 S. Ct. 1588, 16 L. Ed. 2d 674 (1966), the transportation
and disposal of refuse was itself specifically found to con-
stitute interstate commerce. That case was a Sherman
* 11. Quoted above in footnote 1.
12. DEP was enjoined by the decision below from enforcing
these regulations as well as the relevant sections of the Waste Con-
trol Act. These regulations are quoted in footnote 2 above.
Appendix A-3. A43
antitrust action brought against an association of refuse
removers in the greater Philadelphia area who collected
in Pennsylvania but often dumped in New Jersey. 242
F. [469] Supp. at 796. The District Court found that the
government had clearly met its burden of showing that
defendants’ business was commerce, and was interstate in
nature. Id. at 796-97. The court emphasized that the real
subject of “trade or commerce” was not the worthless
garbage that was being transported but rather the valu-
able service of its removal and disposal. Id. at 799.
The Pennsylvania Refuse case affords an illustration of
the part played by the Commerce Clause as justification for
bringing a particular business scheme within the reach of
a Congressional regulatory enactment. The Sherman Act
purports only to prohibit as illegal certain combinations in
restraint of trade or commerce, namely, those where the
pride Legace yh retiwithorhge an This is the
affirmative aspect of the Commerce Clause—to support
some exertion of federal control or regulation. Similarly,
persons ged in a disposal business, interstate in nature,
Se hase Aeaic ts dene wii tis aoen of Gn Caled
Fair Labor Standards Act. Schultz v. Instant Handling,
Inc., 418 F. 2d 1019 (5th Cir. 1969); Barnett v. A-1
Scavenger Service Co., 466 S. W. 2d 150 (Mo. Ct. App.
1971). But we deal here, in the case before us, with what
. are customarily called the “negative implications” of the
Commerce Clause, the extent to which it may be invoked—
not to support an exercise of federal regulation—but rather
to strike down or restrict state legislation. The Supreme
Court has understandably adopted a very sweeping con-
cept of the Commerce Clause in its affirmative application,
in order to further the extent of Congressional control. A
much more confined notion of the reach of this provision
has, however, been manifested, as we shall see, when it
has been invoked to prohibit or limit state action.
A44 Appendix A-3—
IV
Assuming for present purposes that the service of
transporting and disposing of solid waste in the factual
con- [470] text here presented is in fact interstate com-
merce in the constitutional sense, we next consider the
contention that the relevant sections of the Waste Control
Act amount to an improper effort to regulate such com-
merce since such control lies within the exclusive cogni-
zance of the federal government. In considering this pre-
emption argument in relation to the cases before us, we
note initially that in the Hackensack Meadowlands case
the trial court determined that in this area of solid waste
disposal no such preemption is to be found. 127 N. J.
Super. at 171, 316 A. 2d 711.
The need to determine whether, in a particular seg-
ment of interstate commerce, a state is precluded from
acting because of federal preemption is the direct result of
the landmark decision of the United States Supreme Court
in Cooley v. Board of Wardens, 53 U. S. (12 How.) 299,
13 L. Ed. 996 (1851). There the Court for the first time
clearly recognized that states have concurrent authority
with the federal government to deal with those subjects of
interstate commerce which do not necessarily require a
national or uniform system of regulation. In a more re-
cent statement appearing in Florida Lime & Avocado
Growers, Inc. v. Paul, 373 U. S. 132, 83 S. Ct. 1210, 10
L. Ed. 2d 248 (1963), Justice Brennan laid down the rule
that a state would be precluded from acting only where
either the “nature of the subject matter” or an “explicit
declaration of congressional design” indicated that state
efforts were to be precluded. See 373 U. S. at 143-152,
83 S. Ct. 1210, 10 L. Ed. 2d at 257-62.
The problem which arises in most instances where
Congress has acted—as is here the case—results from there
Appendix A-3 A45
having been a failure on the part of Congress to make clear
whether there was or was not a desire and intent on its
part to exercise exclusive control in a particular area. The
Supreme Court has recognized that “in the final analysis,
there can be no one crystal clear distinctly marked
formula,” Hines v. Davidowitz, 312 U. S. 52, 67, 61 S. Ct.
399, 404, 85 L. Ed. 581, 587 (1941), resort to which will in
all cases unequivocally reveal Congressional intent. Ben-
son, The Supreme [471] Court and the Commerce Clause,
1937-1970 at 277-78 (1970).
Fortunately, although Congress has acted in this field
through the passage of the Solid Waste Disposal Act of
1965 and its subsequent amendments, it has clearly indi-
cated its intention not to preempt the area. As we have
noted earlier, federal legislation has thus far been largely
limited to providing “financial and technical assistance and
leadership” to develop new methods of disposal and re-
source recovery and to reduce waste. In the Congressional
findings is a pronouncement that “the collection and dis-
posal of solid wastes should continue to be primarily the
function of State, regional, and local agencies. . . .” 42
U. S. C. A. §3251(a)(6). We also note that severe
budgetary cuts in recent years have reduced federal action
even below that originally envisioned in the Solid Waste
Disposal Act. For example, the Nixon Administration cut
the federal solid waste budget from $30 million in 1973 to a
projected $5.8 million for the fiscal year 1974, and sought
to restrict the federal role to the control and disposal of
hazardous wastes. No further funds were provided for
such items as research and development, and technical
assistance was substantially curtailed. See Environmental
en “aa Federal Environmental Law 1307-1310
1974).
A46 Appendix A-3
It is entirely clear that the case for federal preemption
must fail. Congress has encouraged state action; it has not
precluded it.
Vv
In considering whether the statutes and regulations
here under scrutiny do or do not constitute an imper-
missible regulation of interstate commerce, we bear in
mind that the Constitution “was framed upon the theory
that the peoples of the several states must sink or swim
together, and that in the long run prosperity and salvation
are in union and not in division.” Baldwin v. Seelig, supra,
294 U. S. 511, 523, 55 S. Ct. 497, 500, 79 L. Ed. 1032, 1038
(1935). Primarily the purpose sought to be served by
including the Commerce Clause in the Constitution was to
check or eliminate the economic discrimination among the
states that had been so rampant under the Articles of
Confederation. E.g., Baldwin v. Seelig, supra, 294 U. S.
at 521-23, 55 [472] S. Ct. 497, 79 L. Ed. at 1037-38; H. P.
Hood & Sons, Inc. v. DuMond, 336 U. S. 525, 533-35, 69
S. Ct. 657, 93 L. Ed. 865, 871-72 (1949); Ribble, State and
National Power Over Commerce 3-4 (1937).
Despite this broad grant of power given Congress by
the Commerce Clause, innumerable problems have con-
tinuously arisen. This is in large part because the states,
in the exercise of their police power to protect the health,
welfare and safety of their citizens, have passed many laws
which often in effect do directly regulate interstate com-
merce. Thus over the years the United States Supreme
Court has been called upon to arbitrate between these
competing demands o
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.