Motion to Dismiss — Philadelphia v. New Jersey

Se ————

Supreme Court of the RutiyD SRE. U.S

Ocropzrn Term, 1975 |, * FILED

No. 75-1150

| MAR 17 1976

| MICHAEL RODAK, JR., CLERK |

CITY OF PHILADELPHIA, CITY OF GLEN COVE,

LANDFILL AND DEVELOPMENT COMPANY, MAC

SANITARY LANDFILL, INC., KINSLEY’S LAND-

FILL, INC., and DELORENZO-INTERSTATE WASTE

REMOVAL CO., INC. (now INTERSTATE WASTE

REMOVAL CO., INC.),

Appellants,

Vv.

STATE OF NEW JERSEY, DEPARTMENT OF EN-

VIRONMENTAL PROTECTION OF THE STATE OF

NEW JERSEY and RICHARD J. SULLIVAN, Com-

missioner of the Department of Environmental Protec-

tion of the State of New Jersey,

Appellees.

On Appeal from the Supreme Court of New Jersey

———— ee

MOTION TO DISMISS

AND BRIEF IN SUPPORT THEREOF

5 OO

Wuium F. Hytanp,

Attorney General of New Jersey,

Attorney Fin Appellees,

State House Annex,

Trenton, New Jersey 08625.

SrepHen SKILLMAN,

Assistant Attorney General,

Of Counsel and On the Brief.

Marx L. Frmst,

De Atto Gene

og =~ anapta

————— eel

‘Adams Press Corp., 11 Commerce Street, Newark, N. J. 07102—(201) 623-8611 :

A

TABLE OF CONTENTS

QuesTion PRESENTED 2

substances health and the

vironment s = 4

Concussion 20

Cases Cited

Asbell v. Kansas, 209 U.S. 251 (1908) 2 11

Clason v. State of Indiana, 306 U.S. 439 (1939)....9-12, 17

Cloverleaf Butter Co. v. Patterson, 315 U.S. 148

(1942) 15

Eveo v. Jones, 409 US. 91 (1972)... a>, £

Florida Lime & Avocado Growers v. Paul, 373 US.

132 (1963) 15

Gooch v. United States, 297 U.S. 124 (1936)... 14

ere eS ee

(1911) 14

Hoke v. United States, 227 US. 308 (1913) . 4

ii TABLE OF CONTENTS

PAGE

Hood v. DuMond, 336 U.S. 525 (1949) 11, 14, 15

Huron Portland Cement v. City of Detroit, 362 US.

440 (1960) 14

Local Union No. 10 v. Graham, 345 US. 192 (1952)... 6

Parker v. Brown, 317 U.S. 341 (1942) 15

Pennsylvania v. West Virginia, 262 U.S. 553 (1923)..14, 15

Price v. Illinois, 238 U.S. 446 (1915) . 11

Senior Appeals Examiners, In re, 60 N. J. 356, 290

A. 2d 129 (1972) 19

Sligh v. Kirkwood, 237 U.S. 52 (1915) 9,10

Smiley v. Kansas, 196 U.S. 443 (1904)... 8

United States v. Bishop Processing Company, 287

F. Supp. 624 (D. Md. 1968): 13

United States v. Pennsylvania Refuse Removal As

sociation, 242 F. Supp. 794 (E.D. Pa. 1965) aff’d

357 F. 2d 806 (3rd Cir. Lane) Oe ee Pe

9€1 (1966)... n 13

West v. Kansas Nat. Gas Co., 221 U.S. 229 (1911)...14, 15

United States Constitution Cited

Article I, Section 8, Clause 3 2, 4, 8, 13, 15, 17-19

Statutes Cited

N.J.S.A. 13:11-9 2,19

P.L.N.J. 1973, ch. 363 2, 7, 8, 14, 15, 17-19

Sec. 1 rar eo ie 4

28 US.C.:

Sec. 1257(2)

42 U.S.C.A. (Clean Air Act):

Sec. 1857

NJAC. 7:142 -

Rule 16(1)(b) —

&

No. 75-1150

—-—

CITY OF PHILAD. CITY OF GLEN COVE,

LANDFILL AND D PMENT renee ey

SANITARY LAND INC., KINSLEY’S

FILL, INC., and DELORENDO 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 and RICHARD J. SULLIVAN, Com-

missioner of the Department of Environmental Protee-

tion of the State of New Jersey.

; Appellees.

On Appeal from the Supreme Court of New Jersey

—

MOTION TO DISMISS

AND BRIEF IN SUPPORT THEREOF

Motion to Dismiss

Pursuant to Rule 16(1)(b) of this Court, the Attorney

General of the State of New Jersey, on behalf of ap-

pellees, hereby moves to dismiss this appeal on the

grounds that it does not present a substantial federal

question.

Question Presented

1. Does the Commerce Clause (Article I, Section 8,

Clause 3) of the United States Constitution require a

state acting to fulfill its obligation to provide solid waste

disposal facilities for its own residents also to provide

such facilities for other states?

Counter-Statement of the Case

The crisis in solid waste disposal leading to the enact-

ment of the legislation challenged on this appeal (New

Jersey Public Laws of 1973, chapter 363, N.J.S.A. 1341-9

et. seq.) is appropriately described in a report submitted

‘to the trial court in support of the State’s motion for

summary judgment, entitled “Basis and Background for

the Proposed Rules of the Bureau of Solid Waste Man-

agement”, as follows:

“In 1971, at least 114 million tons of solid waste

generated outside of New Jersey were buried with-

in this State. The failure on the part of our neigh-

boring states to provide suitable disposal facilities

of their own has consumed thousands of landfill

acres in New Jersey, has contributed to the degra-

dation of our environment, and is increasing the

cost of disposal for our own municipalities. The

epletion of landfill space and the enforcement of

stringent air quality standards in the metropolitan

regions of our neighboring states is increasing the

volume of out-of-state waste disposed of in New

Jersey at an ever-increasing rate. |

“Tt is estimated that our metropolitan counties

of Bergen, Essex, Hudson, Passaic and Union have

no more than three years of landfill space remain-

ing. i ay nt ae Hen Se Se mae

tion process, the Department vironmen

Protection, in conjunction with the Hackensack

Meadowlands Development Commission, recently

instituted a ban on the disposal of out-of-state

waste within the Hackensack Meadowlands Devel-

t Commission district. The Hackensack Mea-

\

4

have expressed concern over the scarcity of suitable

new sites.

“One measure of the problem is the increasing

volume of waste which requires disposal each year.

While the rate of waste generation within New

Jersey is rising steadily, the volume of waste im-

ported from other states is increasing at an alarm-

ing rate. The depletion or abandonment of solid

waste facilities in our neighboring states has greatly

affected the tonnage of solid waste which is brought

into New Jersey for disposal.” (Pa43 to Pa44).*

ARGUMENT

The appellants have not presented a substantial

constitutional issue entitling them to appeal, because

the decisions of the Court firmly establish that the

Commerce Clause of the United States Constitution

does not prohibit a State from taking action to pre-

vent the importation of substances harmful to public

health and the environment.

The question presented, simply stated, is whether a state

may, consistent with the Commerce Clause, seek to deal

with a solid waste disposal crisis of substantial propor-

tions by prohibiting the dumping of waste originating

outside the state. |

The nature of the crisis was stated in emphatic terms

by the New Jersey Legislature and the Supreme Court

of New Jersey. Section 1 of chapter 363 states:

* This notation refers to the appendix filed with the Supreme

Court gg New Jersey, which was certified to the Court on February

9, 1976.

5

“Nhe Legislature finds and determines that since

the enactment of P. L. 1973, ¢. 39 (C. a

.) the volume of solid and liquid waste continues

mance increase, that the. treatment and disposal

of these wastes continues to pose an even greater

threat to the quality of the environment of New

Jersey, that the available and appropriate landfill

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 welfare require that the

treatment and disposal within this State of all

wastes generated outside of the State be prohibited.”

(App. 61).

Similarly, the Supreme Court of New Jersey, referring to

its own findings in prior litigation involving solid waste

problems as well as taking judicial notice of legislative

studies, stated:

“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 proportions’ due to the increas-

ing scarcity of sites for dumping and landfill.

Southern Ocean Landfill, Inc. v. Mayor and. Coun-

cil of the Township of Ocean, 64 N. J. 190, 193,

314 A. 2d 65 (1974).

. es o

“Compounding the shortage problem are other

extremely important environmental considerations.

Many existing landfills within the State are located

within ecologically sensitive areas, such as flood-

plains, 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 are contemplated, thus reducing the esti-

mates of the potential lifespans of such existing

facilities.

. * *

“Our Appellate Division has recognized that gar-

bage and refuse may provide a direct threat to the

public health. Shaw v. Byram Township, 86 N. J.

Super. 598, 602, 207 A. 2d 570 (App. Div.), certif.

denied, 45 N. J. 35, 210 A. 2d 780 (1965) and indeed

the point is self-evident. Likewise, the detrimental

7

“No person shall bring into this State any

solid or liquid waste which originated or was col-

lected 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 endan-

gering the public health, safety and welfare and has

promulgated regulations permitting and regulating

the treatment and disposal of such waste in this

State.” (App. 61-62).

Pursuant to his statutory responsibilities under chap-

ter 363, the Commissioner of the New Jersey Department

of Environmental Protection adopted rules and regula-

tions, to become effective concurrently with the statute,

which provided :

effects which sanitary landfills have upon the en-

vironment have been acknowledged:

‘° * * Sanitary landfills conducted on virgin land

forever ruin the possibility of preserving the site

for conservation. Additionally, such landfill op-

erations can have an adverse effect on the eco-

logicai balance of the surrounding area. A sani-

tary landfill operation also has severe limiting

effects on future development of the property.

Problems of settlement, gas generation, and fires

make it difficult to construct structures on former

landfill sites.’” (App. 33, 35, 47).

These findings must of course be accepted on appeal to the

Court unless they lack a reasonable basis in the evidence.

Evco v. Jones, 409 U.S. 91, 94 (1972) ; Local Union No. 10

v. Graham, 345 U.S. 192, 197 (1952).

The New Jersey Legislature responded to this solid

waste crisis by enacting chapter 363, the operative section

of which provides:

“(a) 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. This Section shall

not apply to:

1. Garbage to be fed to swine in the State of

New Jersey;

2. Any separated waste material, including news-

print, paper, glass and metals, that is free from

putrescible materials and not mixed with other

solid or liquid waste that is intended for a recy-

cling or reclamation facility ;

3. Municipal solid waste to be separated or pro-

cessed into usable secondary materials, including

fuel and heat, at a resource recovery facility pro-

vided that not less than 70 per cent of the thru-put

of any such facility is to be separated or processed

into usable secondary materials; and

8

4. Pesticides, hazardous waste, chemical waste,

bulk liquid, bulk semi-liquid, which is to be treated,

processed or recovered in a solid waste disposal

facility which is registered with the Department

for such treatment, processing or recovery, other

than by disposal on or in the lands of this State.”

N.J.A.C. 7:1-4.2 (App. 96-97).

The combined effect of chapter 363 and the implementing

regulation is to prohibit the transportation into New Jer-

sey of waste for dumping in landfills or burning in incin-

erators, while permitting interstate transportation of

waste intended for any productive use, such as resource

recovery, energy recovery or reclamation.*

The Supreme Court of New Jersey concluded that this

limited restriction on the dumping or incineration of

waste, as an emergency measure to cope with the State’s

solid waste crisis, was not incompatible with the prin-

ciples of economic union embodied in the Commerce

Clause. It said:

“We recognize, and now emphasize, that the ob-

jectives of the statutes and regulations in question

are not only to preserve the health of New Jersey

residents by keeping their exposure to solid waste

and landfill areas to a minimum, but also to pre-

serve for the benefit of both present and future gen-

* Appellants argue that chapter 363 on its face purports to be a

prohibition on the entry of all solid and liquid wastes (except gar-

bage for swine) for any purpose whatsoever. However, the Supreme

Court of New Jersey recognized that the statute must be read with

the regulations promulgated pursuant thereto prior to its effective

date as only applicable to waste destined for disposal. The Court

is bound by this interpretation of chapter 363 of the Supreme Court

of New Jersey. Smiley v. Kansas, 196 U.S. 443, 455 (1904).

erations the natural habitat and ecological values

which landfill usage would destroy. The Supreme

Court has recognized that the protection of public

health through the preservation of the environment

is a valid, and indeed primary, objective of the

police power. Huron Portland Cement Co. v. De-

troit, 362 U. S. 440, 442, 80 S. Ct. 813, 4 L. Ed. 2d

852, 855 (1960). Today it cannot possibly be ques-

tioned that the preservation of the environment

and the protection of ecological values are, without

more, sufficient to warrant an exercise of this

power.” (App. 47-48).

These conclusions are fully consistent with the leading

Commerce Clause decisions of the Court.

The Commerce Clause of Art. 1, Section 8 of the United

States Constitution provides that “[t]he Congress shall

have Power... [t]o regulate Commerce . . . among the

several States... .” It is now well established that it

not only provides an affirmative grant of authority to

Congress but also, even in the absence of congressional

action, precludes the states from interfering with inter-

state commerce. It is equally well established, however,

that the Commerce Clause does not require the states to

permit the importation of articles which are an inherent

threat to public health, safety and welfare and thus a

matter of special concern in the exercise of the states’

police powers. Clason v. State of Indiana, 306 U.S. 439,

442-443 (1939); Sligh v. Kirkwood, 237 U.S. 52 (1915). As

the Court stated in Sligh v. Kirkwood, supra:

“The power of the state to prescribe regulations

which shall prevent the production within its bor-

ders of impure foods, unfit for use, and such arti-

cles as would spread disease and pestilence, is well-

10

established. Such articles, it has been declared by

this court, are not legitimate subject of trade or

commerce, nor within the protection of the com-

merce clause of the Constitution. ‘Such articles are

not merchantable; they are not legitimate subjects

of trade and commerce. They may be rightly out-

lawed as intrinsically and directly the immediate

sources and causes of destruction to human health

and life. The self-protecting power of each state,

therefore, may be rightfully exerted against their

introduction, and such exercises of power cannot be

considered regulations of commerce prohibited by

the Constitution,’ ”

“Nor does it make any difference that such regula-

tions incidentally affect interstate commerce, when

the object of the regulation is not to that end, but

is a legitimate attempt to protect the people of the

state .. .” 237 U.S. at 60 (citations omitted) (Em-

phasis added.)

This principle was applied in Clason v. Indiana, supra,

where the Court upheld an Indiana statute which in effect

prohibited the interstate transportation of animal car-

easses not slaughtered for food. The Court, relying on

Sligh, recognized that the statute was “a sanitary and

health measure not intended to cause discrimination

against or to burden interstate commerce . . .” 306 US.

at 443 (emphasis added). The Court clearly stated:

“Here, contrary to what seems to be the insistence

of counsel, the State has not recognized dead horses

as legitimate articles of imtrastate commerce. It

permits them to be sold only to licensed operators

who must transport them immediately under strict

sanitary regulations for prompt delivery to a li-

censed plant there to be rendered innocuous with-

ll

out delay by prescribed methods. All this is part

of a workable scheme to secure prompt removal of

decaying carcasses and thus protect against obvious

evils.

“We can find no substantial basis for the charge

of discrimination against legitimate interstate com-

merece. That any real burden upon commerce which

the State is not free to inhibit will resu/t from the

challenged statute seems impossible.

“There is no suggestion of conflict with a federal

enactment. The mere power of the Federal Govern-

ment to regulate interstate commerce does not dis-

able the State from adopting reasonable measures

designed to secure the health and comfort of their

people. The statute under consideration is an effort

to discharge an obligation to the public; the means

adopted we think are clearly appropriate to this

lawful end.” Jd. at 443-4 (Emphasis added).

See also Price v. Illinois, 238 U.S. 446 (1915); Asbell v.

Kansas, 209 U.S. 251 (1908).

The Commerce Clause thus does not impair state an-

thority to deal with threats to public health, safety and

welfare. Rather, the intent of the Commerce Clause was

to prevent economic balkanization of the states, such as

by the enactment of legislation designed to further the

economic interests of a state’s own residents at the ex-

pense of others. This point was cogently stated by Justice

Jackson in Hood v. DuMond, 336 U.S. 525, 533 (1949) :

“This distinction between the power of the State

to shelter its people from menaces to their health

or safety and from fraud, even when those dangers

emanate from interstate commerce, and its lack

12

of power to retard, burden or constrict the flow

of such commerce for their economic advantage, is

one deeply rooted in both our history and our law.”

Measured by these principles, it is clear that chapter

363 does not offend the Commerce Clause because it is

properly designed to protect the public health, safety and

welfare of the residents of this State rather than to serve

any local economic advantage. It is clear, as indicated

in the opinion of the Supreme Court of New Jersey, that

there is an acute shortage of available landfill space with-

in New Jersey. This means that New Jersey faces the

threat of not being able to dispose of the wastes generated

within its own boundaries unless it can find new areas

for disposal. It is also clear that the disposal of waste

does present a serious threat to public health, safety and

welfare. It pollutes water by the runoff of leachate, it

generates gases which not only can be dangerous to

breathe but also create fire hazards, and it severely limits

the potential future use of property on which landfills are

located. Finally, it is clear that New Jersey’s solid waste

problems, serious in any event, have been significantly

aggravated by the disposal at New Jersey landfill sites

of waste from outside the state. As the Supreme Court

of New Jersey found, approximately 8% of all waste

disposed of in New Jersey originates out of state and in

some areas the percentage of out of state waste is as high

as 50% (App. 35, Pa35). Thus, chapter 363 serves a

clear public health, safety and welfare interest by re-

ducing the overall quantity of waste which the State must

dispose or incinerate, and it is as fully compatible with

the Commerce Clause as was the exclusion in Clason v.

Indiana of animal carcasses not intended for consumption

as food.

13

It is also clear that there is no element of economic

discrimination in the exclusion from New Jersey of waste

originating out of state. No New Jersey commercial in-

terests stand to gain an advantage from this ban over

competitors from outside the state. On the contrary,

among the appellants are New Jersey landfill operators.

The complaint is not that New Jersey has forged an eco-

nomic preference for its own commercial interests but

rather that, in order to protect the health, safety and wel-

fare of the citizenry at large, it has denied a sma!l group

of its entrepreneurs an economic opportunity to traffic in

waste.

The appellants, in seeking to avoid the line of cases

holding that the Commerce Clause does not prevent the

states from enacting legislation to protect the health,

safety and welfare of their citizens, rely on cases which

have no bearing upon the restrictions which the Commerce

Clause places on the states, in the absence of congressional

action, but deal instead with the breadth of the power

which the clause confers upon Congress. See e.g. United

States v. Pennsylvania Refuse Removal Association, 242

F. Supp. 794 (E.D. Pa. 1965) aff’d 357 F. 2d 806 (3rd Cir.

1966) cert. den. 384 U.S. 961 (1966); United States v.

Bishop Processing Company, 287 F. Supp. 624 (D. Md.

1968). Bishop Processing recognized that the movement

of air pollutants across state lines provided an adequate

nal basis under the Commerce Clause for the

enactment of the Clean Air Act. 42 U.S.C.A. § 1857, et

seq. However, this does not mean that the Commeree

Clause would present an obstacle to the enactment of leg-

islation by New Jersey to prevent all of Pennsylvania’s

air pollution from being collected and shipped to New

Jersey for release on the property of a well-paid entre-

14

preneur.* Similarly, although the Court has held federal

statutes prohibiting the interstate transportation of pros-

titutes, Hoke v. United States, 227 U.S. 308 (1913), adul-

terated eggs, Hipolite Egg Co. v. United States, 220 US.

45 (1911) and kidnapped persons, Gooch v. United States,

297 U.S. 124 (1936) to be appropriate exercises of con-

gressional power under the Commerce Clause, this does

not mean that it would stand in the way of state legisla-

tion directed against these evils. The cases dealing with

the reach of congressional power under the Commerce

Clause are thus inappropriately relied upon by the ap-

pellants.

The appellants also rely on the “natural resource” cases

to support their attack upon chapter 363. Pennsylvania

v. West Virginia, 262 U.S. 553 (1923); West v. Kansas

Nat. Gas Co., 221 U.S. 229 (1911). However, these cases

all dealt with statutes which attempted, as described in

Pennsylvania v. West Virginia, “to regulate the interstate

business to the advantage of the local customers.” 262

U.S. at 597-598. Therefore, these cases involved, under

the analysis contained in DuMond v. Hood, supra, state

regulation “. . . to constrict the flow of . . . commerce for

their economic advantage .. .”, not an attempt by the

State “. . . to shelter its people from menaces to their

health or safety. . . .” 336 U.S. at 533. The restrictions

were therefore naturally found to offend the Commerce

Clause.

In short, Commerce Clause cases are concerned with the

loss of products or resources to the chain of commerce.

* Similarly, if the ships in Huron Portland Cement v. City of

Detroit, 362 U.S. 440 (1960), cited by appellants, were collecting

all of the smoke which was produced while steaming the Great

Lakes and were releasing it in Detroit Harbor, an ordinance

hibiting such a release would not be struck down by the Court.

15

This is true whether the product or resource is avocados,

Florida Lime & Avocado Growers v. Paul, 373 U.S. 132

(1963), butter, Cloverleaf Butter Co. v. Patterson, 315

U.S. 148 (1942), milk, Hood & Sons, Inc. v. DuMond,

supra, raisins, Parker v. Brown, 317 U.S. 341 (1942), or

natural gus, Pennsylvania v. West Virginia, supra; West

v. Kansas Natural Gas Co., supra. In the present case,

on the other hand, chapter 363 was not designed nor does

it have the effect of furthering New Jersey commercial] in-

terests. Rather, its objective was to protect the citizens

of the State from the direct threats to the public health

and the environment noted by the Supreme Court of New

Jersey.

In arguing that this case is not controlled by the deci-

sions of the Court holding that the Commerce Clause is

not violated by state legislation directed towards the pro-

tection of the State’s health, safety and welfare, the ap-

pellants now urge, notwithstanding the record which was

before the Supreme Court of New Jersey, that the dis-

posal of waste really involves no threat to the health or

welfare of New Jersey's residents. In so doing, they por-

tray a seriously misleading picture of the record before

the Supreme Court of New Jersey and the procedural

history of this matter in the state courts. Significantly,

appellants’ belated attack on the environmental and health

problems involved in solid waste disposal rests heavily

on two affidavits, inserted in the appendix to their juris-

dictional statement, which undoubtedly were never seen

by any justice of the Supreme Court of New Jersey prior to

its decision. One of the affidavits, contained in Appendix

Z, is dated November 25, 1975, a week after the decision of

the Supreme Court of New Jersey from which the appel-

lants have appealed. The second, contained in Appendix

G, was submitted to the trial court in support of an ap-

plication for temporary restraints, but it was not included

16

in an appendix or in any other way brought to the atten-

tion of the Supreme Court of New Jersey. Therefore,

appellants presented no substantial material to the Su-

preme Court of New Jersey to cast any doubt on the

prevailing view that landfills do present serious health

and environmental problems. In fact, the only material

on this subject submitted to the trial court on the cross

motions for summary judgment and included in the ap-

pendices to the briefs submitted to the Supreme Court of

New Jersey was a lengthy document entitled, “Basis and

Background for the Proposed Rules of the Bureau of

Solid Waste Management”. This report stated inter alia:

“Recent studies indicate that sanitary landfills

have environmental problems all their own. We

have learned that keeping a landfill truly ‘sanitary’

involves much more than daily soil cover and the

use of massive machinery, although these by no

means are unimportant. In New Jersey virtually

all sanitary landfills can be expected to produce

leachate, a noxious and highly polluted liquid which

is seldom visible and frequently pollutes our ground

and surface waters. The natural decomposition

process which occurs in sanitary landfills generates

a mixture of gases. Much of this mixture is com-

posed of methane, the same ‘natural’ gas used in

cooking and heating.” (Pa37).

After discussing in greater detail the environmental and

health problems in solid waste disposal, the document con-

eludes with a two-page bibliography of pertinent litera-

ture dealing with solid waste problems (Pa47 to Pa48).

There was therefore an abundance of material before the

Supreme Court of New Jersey dealing with the environ-

mental and health problems posed by waste disposal, on

which it appropriately relied in its opinion.

17

Appellants’ final argument, apparently fashioned in rec-

ognition of the fact that the record simply does not sup-

port their claim that this case falls outside the Clason v.

Indiana line of cases, is that the Supreme Gourt of New

Jersey how thwarted their efforts to develop a full

record thereby denied the appellants due process of

law. This contention is frivolous. It was appellants’ trial

strategy which determined the course of proceedings in

the state courts. Soon after the filing of their complaint,

the appellants moved for summary judgment “. . . only

upon the issues of federal pre-emption and discrimination

against interstate commerce .. .” (App. 205). Thus the

essential thesis upon which the matter was submitted to

the trial court was that, regardless of the impact on en-

vironmental degradation, if New Jersey permitted the

dumping in landfills of waste originating within the state,

it was also obligated by the Commerce Clause to accept

out-of-state garbage for damping in its landfills. On the

appeal by the State to the Supreme Court of New Jersey,

appellants again essentially relied upon the thesis that

chapter 363 violated the Commerce Clause by “discrimi-

nating” against waste originating out of state. No seri-

ous question was raised as to the validity of legislative

findings that environmental degradation was being aggra-

vated by the dumping in New Jersey of wastes originat-

ing out of state. However, the Supreme Court of New

Jersey rejected the appellants’ thesis, finding that “.

the purpose of the legislation is to protect the inhabitants

and vital resources of New Jersey, not to impose economic

barriers or create commercial restrictions . . .” (App.

50-51), and, as had been urged by the State,* rejected ap-

* The brief filed with the Supreme Court of New Jersey con-

cluded by stating that “. . . the decision below should be reversed

and the matter should be remanded with instructions to grant

defendants’ motion for summary judgment on the Commerce Clause

issue.”

18

pellants’ claim that chapter 363 was inconsistent wit), the

Commerce Clause. It was then for the first time on a

motion for remand to the trial court that appellants

raised questions concerning the findings of the New Jer-

sey Legislature aud the Supreme Court of New Jersey as

to the deleterious impact on the environment of the dump-

ing of out-of-state wastes in New Jersey (App. 219-221).

The Supreme Court of New Jersey, over the strenuous

objections of the State, granted this motion for remand

to the trial court “. . . for such further proceedings, if

any, that that court may deem appropriate .. .” (App.

224). Therefore, assuming that any facts remained to be

heard, which the State denied, the appellants were given

an opportunity to develop those facts. However, the ap-

pellants deliberately elected not to proceed before the

trial court and instead to enter into a consent dismissal

with prejudice. It is therefore surprising, to say the

least, to find appellants now claiming that this disposition

by the state courts denied them due process of law. Ap-

pellants’ explanation for this strange procedural posture

is to say that they needed an injunction against the effec-

tiveness of chapter 363 and, since the Supreme Court of

New Jersey had foreclosed the grant of that relief in the

state system, it was not in their strategic best interests

to continue with state court proceedings. However, appel-

lants’ strategic situation did not differ from that of any

other party who has been denied preliminary injunctive

relief by a state court, since the right of appeal from the

state courts to the Supreme Court of the United States

is limited to final judgments under 28 U.S.C. 4 1257(2).

Therefore, if there were any substance to appellants’

argument, 28 U.S.C. 1257(2), to the extent it permits ap-

peals to the Supreme Court of the United States only

from final judgments, would be subject to attack on due

process grounds. The appellants’ due process argument

is therefore plainly frivolous.

19

Finally, it should be noted that if any appellant landfill

operator really were in a position to establish that it could

conduct a disposal operation for waste originating out of

state without threat to the health, safety and welfare of

New Jersey citizens, it could obtain a further exemption

from the prohibitory impact of chapter 363. The statute

confers broad power upon the Commissioner of Environ-

mental Protection to permit waste originating out of state

to be brought into the State where he determines that this

can be done “. . . without endangering the public health,

safety and welfare .. .” (App. 62). If any party were

able to show that any exemptions from the prohibition

against dumping waste originating out of state could be

ndopted “. .. without endangering the public health, safety

and welfare .. .”, it must be presumed that the Commis-

sioner would extend the scope of the existing exemptions.

Moreover, under the broad principles of judicial review-

ability of administrative actions which exist in New Jer-

sey (see in re Senior Appeals Examiners, 60 N. J. 356,

290 A. 2d 129 (1972)) if the Commissioner in exercising

his power under the law were “arbitrary, unreasonable

and capricious,” his actions could be set aside on appeal

to the courts. However, in the procedural posture in

which appellants have placed this matter before the court,

it must be assumed, as has been found by the New Jer-

sey Legislature and the Supreme Court of New Jersey,

“ .. that the environment continues to be threatened by

the treatment and disposal of waste which originated or

was collected outside of the State, and 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.JS.A. 13:11-9. Accord-

ingly, the court properly found chapter 363 to be consist-

ent with the Commerce Clause.

20

CONCLUSION

It is respectfully submitted that for the foregoing

reasons the appeal should be dismissed for lack of a

substantial federal question.

Respectfully submitted,

WuuuMm F. Hytanp

Attorney General of New Jersey

Attorney for Appellees

STEPHEN SKILLMAN,

Assistant Attorney “eneral,

Of Counsel and On the Brief.

Mark L. Frmst,

Deputy Attorney General,

On the Brief.