Brief for Appellee — Philadelphia v. New Jersey

‘ , U.S

. me YD

Jul 30 1976

Supreme Court of the Butte Bhdee

October Term, 1975

No 75-1150

CITY OF PHILADELPHIA, CITY OF GLEN COVE, LANDFILL

AND DEVELOPMENT ‘COMPANY, MAC SANITARY LAND-

FILL, INC., KINSLEY’S LANDFILL, INC., and DsLORENZO-

INTERSTATE WASTE REMOVAL CO., INC. (now INTER-

STATE WASTE REMOVAL CO., INC.),

Appellants,

STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL

PROTECTION OF THE STATE OF NEW JERSEY and RICHARD

. SULLIVAN, Commissioner of the Department of Environmental

of the State of New Jersey,

Appellees.

On Appeal from the Supreme Court of New Jersey

BRIEF FOR APPELLEES

—_—_—_—_—_—_—__

ef -——f§ Sy, Se

of New

Attorney for Appellees, State ae at New Jersey,

Depariment of Environmental —— of

the State of New Jersey and Commissioner

of the Department of Environmental Pro-

— of the State of New Jersey,

tate House Annex,

Trenton, = lew Jersey 08625.

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

SPE RET NTE Te a NT EE

TABLE OF CONTENTS

PAGE

QueEsTION PRESENTED 2

CouUNTER-STATEMENT OF THE CASE 2

Summagy oF ARGUMENT 14

ARGUMENT:

Point I—The prohibition against the disposal

within New Jersey of waste originating out

of state falls within the basic power of the

State to protect its environment and the health

of its inhabitants and thus does not violate

the Commerce Clause of the United States

Constitution . 15

Point II—The record before the Supreme Court

of New Jersey provided a reasonable basis

for the legislative finding that the New Jersey

environment is threatened by the disposal of

waste originating out of state and thus there

was no need for a plenary hearing before the

trial court 36

Conclusion 43

Cases Cited

Asbell v. Kansas, 209 U. S. 251 (1908) 18

Berman v. Parker, 348 U. S. 26 (1954) 16

Bibb v. Navajo Freight Lines, 359 U. 8. 520 (1959)....16, 20

Bowman v. Chicago & Northwestern Ry. Oo., 125

U. 8. 465 (1888)... 19

ii TABLE OF CONTENTS

PAGE

Bradley v. Public Utility Com’rs, 289 U. S. 92 (1983)..28, 29

Brotherhood of Loc. F. & E. v. Chicago, R. I. &

P.R.R. Co., 353 U. S. 129 (1968)... ~....-.16, 20

Clason v. State of Indiana, 306 U. S. 439 (1939)..._....18-20

Cooley v. Board of Wardens, 12 How. 299 (1851)... 15

Dean Milk Co. v. Madison, 340 U. S. 349 (1951)... 16

Eveo v. Jones, 409 U. S. 91 (1972)... 2A, 40

Falcone v. Middlesex County Med. Soc., 47 N. J.

92, 219 A. 2d 50 (1966) 37

Freeman v. Hewit, 329 U. S. 249 (1946) 15

Georgia v. Tennessee Copper Co., 206 U. S. 230

(1907) ‘ 3A, 35

Gooch v. United States, 297 U. S. 124 (1936)... 30

Great A. & P. Tea Co. v. Cottrell, 96 S. Ct 923

(1976) . 15, 16

Hebe Co. v. Shaw, 248 U. S. 297 (1918)... 41

Hipolite Egg Co. v. United States, 220 U. S. 45

(1911) 30

Hoke v. United States, 227 U. S. 308 (1913).......... ——

H. P. Hood & Sons v. Du Mond, 336 U. S. 525

(1949) 15, 20, 31

Hughes v. Alexandria Scrap OCorp., 44 Law Week

4559 (decided June 24, 1976) 31-33, 41

Huron Portland Cement Co. v. Detroit, 362 U. 8. 440

(1960) 16, 30

Illinois v. City of Milwaukee, 406 U.S. 91 (1972)... 34

TABLE OF CONTENTS iil

PAGE

Irving Isko v. Planning Bd. of Tp. of Livingston, 51

N. J. 162, 288 A. 2d 457 (1968)

Local Union No. 10 v. Graham, 345 U. S. 192 (1952)..24, 40

Milk Control Board v. Eisenberg Farms Products,

306 U.S. 346 (1939) 7

Missouri v. Illinois & Chicago District, 180 U. S. 208

(1901) 34

New Jersey v. New York City, 283 U. S. 473 (1981) 34

New York v. New Jersey, 256 U. S. 296 (1921)......... 34

North Dakota v. Minnesota, 263 U. S. 366 (1923)... 34

Oklahoma v. Kansas Nat. Gas Co., 221 U. 8S. 229

(1911) 30

Parker v. Brown, 317 U. 8. 341 (1943) 24

Pennsylvania v. West Virginia, 262 U.S. 563 (1923) 30

Pike 7. Bruce Church, 397 U. 8S. 137 (1970) 18

Price v. Illinois, 238 U. 8. 446 (1915) 18

Rasmussen v. Idaho, 180 U. S. 198 (1901) 19

Reid v. Colorado, 187 U. S. 137 (1902) 38

Robertson v. California, 328 U. S. 440 (1945).......... 20

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

A, 2d 129 (1972) 42

Sligh v. Kirkwood, 237 U. S. 52 (1915). 17, 18, 24

Smilev v. Kansas, 196 U. S. 443 (1904) 32

Smith v. St. Louis & S.W.R. Co., 181 U. S. 248

(1901) 18, 19

iv TABLE OF CONTENTS arenes

PAGE

South Carolina State Highway Dep’t v. Barnwell

Bros., 303 U. S. 177 (1988) 16, 40

Southern Pacific Co. v. Arizona, 325 U. S. 761

(1945) :

So. Ocean Landfill v. Mayor & Coun. Tp. of Ocean,

16,17

64 N. J. 190, 314 A. 2d 65 (1974) 33

United States v. Bishop Processing Company, 287 F.’

Supp. 624 (D. Md. 1968) 29, 30

United States v. Pennsylvania Refuse Removal As-

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

_ 857 F. 2d 806 (3rd Cir. 1966) cert. den. 384 U. S.

961 (1966) 29

Welch v. Swasey, 214 U. S. 91 (1909): 24, 40

West v. Kansas Nat. Gas Co., 221 U. S. 229 (1911).. 30

Wilson v. The Blackbird Creek Marsh Co., 2 Pet.

245 (1829) 17

United States Constitution Cited

Article I, Section 8, Clause 3 2

Statutes Cited

N.J.S.A. 13:1E-1 (Solid Waste Management Act of

1970) 33

N.J.S.A. 13:11-9 « 2, 42

N.J.S.A. 13:11-10 3

N.J.S.A. 48:13A (Solid Waste Utility Control Act,

1970) 33

TABLE OF CONTENTS v

PAGE

P.L. 1973, ¢. 363 3, 12, 13, 21, 30, 32, 37, 42

¢. 367 12

28 U.S.C.:

See. 1257(2) 39

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

Sec. 1857 30

Regulation Cited

N.J.A.C. 7:1-4.2 4

Other Authorities Cited

Blannon and Peterson, “Survival of Fecal Coliforms

and Fecal Streptococci in a Sanitary Landfill,

News of Environmental Research in Cincinnati,

U. S. Environmental Protection Agency (April 12, .

1974)

Davis, “A System of Judicial Notice Based on Fair-

ness and Convenience”, Perspectives of Law

(1964) :

69 24

Esmaile, Houshang, “Control of Gas Flow from Sani-

tary Landfills,” Journal of the Environmental

Engineering Division, Proceedings of the American

Society of Civil Engineers, Vol. 101, EE4 (August .

1975) 24, 27

vi TABLE OF CONTENTS

Gas and Leachete from Landfills: Formation, Col-

lection and Treatment, Proceedings of a Research

Symposium, Rutgers University, U. S. Environ-

mental Protection Agency (March 1976)

Flower and Franklin, “Case History of Landfill

Gas Movement Through Soils”

Haxo, Henry E., “Assessing Synthetic and Ad-

mixed Materials for Lining Landfills”

Pohland, “Landfill Management, with Leachate

Recycle and Treatment: An Overview” ............

Ss 8S 8 &

Hazardous Waste Disposal Damage Reports, U. S.

Environmental Protection Agency, Office of Solid

Waste Management Programs (June 1975) ..........24, 28

Miller, DeLuca and Tessier, Ground Water Contami-

nation in the Northeast States, U. S. Environ-

mental Protection Agency (June 1974). 25

Report, “Basis and Background for the Proposed

Rules of the Bureau of Solid Waste Management” 4

Report of the State of New Jersey County ‘and

Municipal Government Commission, Solid Waste:

A Coordinated Approach (1972) 23, 39

Schmalensee, Ramarathan, Ramm and Smallwood,

Measuring External Effects of Solid Waste Man-

agement, U. S. Environmental Protection Agency

(March 1975) 24-27

Supreme Court of the United States

Ocroser Term—1975

No 75-1150

>

Y 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

MOVAL CO., INC.),

REMO ) P ;

v.

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 Pro-

tection of the State of New Jersey,

Appellees.

On Appeal from the Supreme Court of New Jersey

—>—

BRIEF FOR APPELLEES

2

Question Presented

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

3) of the United States Constitution require a state act-

ing to fulfill its obligation to provide disposal facilities

for solid waste generated within its boundaries also to

allow such facilities to be used for waste originating

in other states?

Counter-Statement of the Case

On January 2, 1974, P.L. 1973, c. 363 was signed into

law by the Governor of New Jersey to be effective Feb-

ruary 1, 1974. This legislation contains a legislative find-

ing that:

“

. . Since the enactment of P.L. 1973, ¢. 39 (C.13:

11-1 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 appro-

priate 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 welfare re-

quire 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.

Based on this finding the legislation directs that:

“No person shall bring into this State any solid

or liquid waste which originated or was collected

3

outside the territorial limits of the State, except

garbage to be fed to swine in the State of New

Jersey, until the commissioner [Commissioner of

Environmental Protection] shall determine that

such action can be permitted without endangering

the public health, safety and welfare and has pro-

mulgated regulations permitting and regulating the

treatment and disposal of such waste in this State.

Any person violating this provision shall be sub-

ject to the penalty and enforcement provisions of

the ‘Waste Control Act,’ P.L. 1973, c. 39.” N.J.S.A.

13 :11-10.

Pursuant to the authority of chapter 363 the Commis-

sioner of the New Jersey Department of Environmental

Protection promulgated rules and regulations to be ef-

fective February 1, 1974, concurrently with the effective

date of the statute, which provided that:

“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 ter-

ritorial 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 recycling or

reclamation facility ;

3. Municipal solid waste to be separated or proc-

essed into usable secondary materials, including

fuel and heat, at a resource recovery facility pro-

4

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

put of any such facility is to be separated or proc-

essed into usable secondary materials; and

4. Pesticides, hazardous waste, chemical waste,

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

processed or recovered in a solid waste disposal fa-

cility which is registered With the Department for

such treatment, processing or recovery, otker than

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

A.C, 7:1-4.2 (App. 96).

The complaint in this matter, which was filed with the

Superior Court of New Jersey, Law Division, on January

22, 1974, sought a declaration that chapter 363 is viola-

tive of the Constitutions of the United States and the State

of New Jersey and temporary and permanent injunctive

relief restraining enforcement of the law (App. 7-29).

The case was brought before the trial court on cross-

motions for summary judgment (App. 118-119).

In support of the State’s cross-motion for summary

judgment, a report was submitted, entitled “Basis and

Background for the Proposed Rules of the Bureau of Solid

Waste Management,” which appropriately describes the

crisis in solid waste disposal leading to the enactment of

the ban on the dumping of waste originating out of state.

It states in pertinent part:

“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

5

leachate, a noxious and highly polluted liquid which

is seldom visible and frequently pollutes our ground

and surface waters. The natural decomposition proc-

ess 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.

“There are some 340 landfills now disposing of

solid waste in New Jersey, and almost all were in

existence at the time the Solid Waste Management

Act (1970) became effective. Most of these opera-

tions are situated on lands once considered ‘mar-

ginal.’ Tidal lands, floodplains, and abandoned sand

and gravel mines have been favored as locations

for disposing of our wastes because such lands were

inexpensive, and it was felt that sanitary landfill

was a suitable method of reclaiming those lands.

While it is possible to bring these areas up to a

more useful grade through sanitary landfill, little

consideration has been given to the wisdom of do-

ing so.

“Sanitary landfills produce leachate when water

infiltrates the fill. More than half of our wastes

consist of paper or other absorptive materials. A

sanitary landfill is frequently likened to a sponge

because of this ability to absorb and hold liquids.

Yet, like the sponge, the absorptive capucity of a

sanitary landfill is finite. Water is introduced into

the fill through a variety of mechanisms. Natural

rainwater percolation, off-site drainage into the fill,

natural fluctuations in the groundwater level, tidal

influences, and the water produced through the de-

composition of the organic wastes themselves all

are absorbed by the landfill ‘sponge.’

“Eventually, the landfill becomes saturated, and

can absorb no more liquid. At that point, each

ounce of liquid introduced to the fill causes a cor-

responding ounce of leachate to be displaced and

leave the fill. Leachate produced in a sanitary land-

fill is a highly polluted liquid characteristic of the

waste in which it was produced. Leachates from

municipal wastes (household and commercial

wastes) are typically 50 to 100 times as polluting

as raw sewage, and landfills have been known to

leach for as long as 20 years, although contaminant

concentrations can be expected to decrease in time.

“While examples of leaching sanitary landfills

have been studied and documented for many years,

only recently have researchers begun to study

leachate generation in detail. As recently as 1972,

the U.S. Environmental Protection Agency, in its

report entitled ‘Sanitary Landfill Design and Op-

eration,’ stated the following: -

‘Some investigators believe that even in a sani-

tary landfill, leachage production is inevitable

and that some leachate will eventually enter sur-

face water or groundwater. This has not been

proven but neither has the opposite view. The

present philosophy held by the Office of Solid

Waste Management Programs, most State solid

waste control agencies, and many experts in the

field is that through sound engineering and de-

sign, leachate production and movement may be

prevented or minimized to the extent that it will

not create a water pollution problem.’

7

“One icularly disconcerting feature of leach-

ate ea is the time delay created by the

absorptive character of the wastes. Frequently,

landfills do not begin leaching until some time after

the fill has been completed and the waste has

reached its saturation level. Climatic conditions in

New Jersey are favorable to leachate production

and, unless extreme measures are taken to prevent

any liquid from infiltrating the waste, leachate will

be produced in New Jersey’s landfills. The prob-

lem then becomes one of preventing the pollution

of our ground and surface waters by the leachate.

“Water pollution from sanitary landfills is deter-

mined by a number of factors, including the site

hydrology, geology, topography, method of opera-

tion, the type of wastes received for disposal, and

other physical and chemical factors which vary

from fill to fill. Clearly, then, the potential for

polluting our ground and surface water resources

should be a strong factor in the selection of a sani-

tary landfill site, and in its design and method of

operation. : : si

“Gas is produced in sanitary landfills as a prod-

uct of the decomposition process. During the early

stages of decomposition, air is present in the fill

and the decomposition process is therefore called

‘aerobic.’ The principal gas produced during aero-

bic decomposition is carbon dioxide (COs).

“As the oxygen in the fill is consumed to produce

CO., the decomposition process becomes ircreasing-

ly anaerobic (the absence of air). The gaseous

products of anaerobic decomposition are CO. and

methane (CH.). In the latter stages of decom-

8

position almost half the gas present is methane.

Methane is the ‘natural gas’ commonly used for

cooking and heating in our homes, and is explosive

when present in air at concentrations between 5

and 15 percent. Since methane is only produced

in landfills where there is no oxygen present, it

does not pose an explosive threat in the fill itself.

Methane is, however, much lighter than air and,

therefore, tends to migrate upward in a sanitary

landfill. The gases in the landfill are normally un-

der a slight pressure, and the methane would there-

fore travel from the fill along the path of least

resistance, sometimes moving laterally where it

cannot easily vent to the atmosphere. For this

reason, methane can constitute an explosion hazard

if it is allowed to accumulate in enclosed struc-

tures on or near a sanitary landfill.

“The introduction of bulk liquids into a landfill

can greatly affect the generation of leachate with-

in the fill, and leaching from fills which have ac-

cepted hazardous wastes can have a particularly

devastating effect on the quality of our resources.

For these reasons, the proposed regulations would

require any sanitary landfill which accepts such

wastes to establish and maintain water monitoring

facilities, and to undertake immediate corrective

measures should the monitoring disclose contami-

nation. Additionally, the proposed regulations

would ban the disposal of hazardous wastes and

bulk liquids at conventional sanitary landfills after

March 15, 1975. This, it is felt, is sufficient lead-

time for the construction of recovery, treatment

and disposal facilities with sufficient safeguards to

properly handle hazardous and bulk-liquid wastes.

9

“Tn 1971, at least 144 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 disposa. facilities

of their own has consumed thousands of landfill

acres in New Jersey, has contributed to the de-

gradation of our environment, and is increasing the

cost of disposal for our own municipalities. The

depletion of landfill space and the enforcement of

stringent air quality standards in the metropoli-

tan 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. In an effort to slow down the landfill deple-

tion process, the Department of Environmental

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-

opment Commission district. The Hackensack Mea-

dowlands ban caused collectors of out-of-state

waste to travel into the suburban regions of the

state, thus threatening the life expectancy of those

disposal sites. This increased the cost of solid

waste collection and disposal for New Jersey’s resi-

dents, for when nearby disposal sites are depleted,

collectors must haul their waste longer and longer

distances into the State’s suburbs and rural areas.

“Since the Solid Waste Management Act took

effect in 1970, over forty landfill sites have closed.

During that same period only nine new disposal

10

sites have commenced operations and, of these, only

three accept general municipal-type wastes for dis-

posal. Concurrently, more and more landfill op-

erations are discovering that their acreage includes

unusable flood plain or tidal marsh areas and orig-

inal estimates of their waste capacity were errone-

ously high. The lands now utilized for sanitary

landfills are limited, and both industry and local

goverment 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 Jer-

sey is rising steadily, the volume of waste imported

from other states is increasing at an alarming rate.

The depletion or abandonment of solid waste fa-

cilities in our neighboring states has greatly af-

fected the tonnage of solid waste which is brought

into New Jersey for disposal.

“The legislature, in recognition of the rapidly

increasing volume of waste imported into New Jer-

sey, enacted the ‘Waste Control Act’ (N.J.S.A. 13:

11-1, et seg.) which was signed into law on Febru-

ary 21, 1973. That statute, effective March 1, 1973,

empowers the Department of Environmental Pro-

tection to prohibit or control the disposal of out-

of-state wastes in New Jersey. The proposed regu-

lations would prohibit the disposal of wastes gen-

erated or collected outside of the State at solid

waste facilities within the State.” (N.J.A.C. 7:26-

1.8) (App. 74-75, App. 77-85).

11

An affidavit by the Chief of the New Jersey Bureau of

Solid Waste Management, also submitted in support of

the cross motion for summary judgment, further explained

the precise impact of the disposal of waste originating out

of state upon the solid waste crisis in New Jersey:

“9. The figures available to the Department in-

dicate that the present volume of solid waste be-

ing brought into New Jersey for disposal from the

City of Philadelphia is approximately 10,000 tons

a week.

“3 The figures available to the Department in-

dicate that the volume of solid waste being brought

into New Jersey for disposal from New York is

signicantly in excess of 10,000 tons a week. The

Hackensack Meadowlands Development Commission

has found, by actual count, that 10,000 tons a week

from New York were being disposed of within the

Hackensack Meadowlands District alone prior to

the initiation of a ban on out-of-state dumping in

that area. Much of the garbage previously dis-

posed of in the Hackensack Meadowlands District

is now being disposed of elsewhere in New Jersey.

“5 The ban on the disposal of out-of-state waste

within New Jersey will increase State-wide land-

fill life by approximately 8 percent. In specific

areas, or with respect to specific landfills, the ban

substantially increased the capacity available for

disposal of wastes, in some instances as much as

50 to 100 percent. In Middlesex County an actual

survey made by the Department indicated that the

ban would extend landfill life in that county by 20

percent.

12

“6. It is extremely difficult to estimate accurate-

ly existing landfill capacity, but the Department’s

best estimate is that existing capacity in north Jer-

sey is about 3 years, and in south Jersey as much

as 10 years.

“7. One of the difficulties in estimating total

State-wide or regional landfill capacity is that many

landfills in the State are located in environmentally

sensitive areas such as floodsplains, wetlands, or

on State-owned public trust tidelands, and their

operation may soon be limited or discontinued for

environmental reasons. Such discontinuance will

obviously decrease even further the availability of

landfill sites for disposal of New Jersey wastes.”

(App. 70-71).

On the basis of the cross motions for summary judg-

ment, the trial court concluded that waste is a proper sub-

ject of interstate commerce, that chapter 363 discriminates

against such commerce and that the statute therefore vio-

lates the Commerce Clause (App. 206-213).

On appeal by the State, the Supreme Court of New

Jersey found that the objective of chapter 367 was “.. .

to prolong the useful lifespan of landfill areas within the

state . . .” and thereby serve “. . . the needs of public

health as well as endeavoring to preserve the environ-

ment.” (App. 248). It further found that the legisla-

tion did not discriminate against interstate commerce,

observing that “. . . the purpose of the legislation is to

protect the inhabitants and vital resources of New Jer-

sey, not to impose economic barriers or create commer-

cial restrictions.” (App. 248). The court therefore con-

cluded that the Commerce Clause had not been violated:

“(Where the effect upon trade and commerce is rela-

13

tively slight, as is here the case, and where at the same

time the values sought to be protected by the state legis-

lation are as crucial to the welfare of its citizens as 1s

here true, we have no hesitancy in sustaining the state

action (App. 251-252).

After issuance of the opinion of the Supreme Court of

New Jersey, the appellants moved the court to stay its

judgment and to remand the matter to the trial court

for a hearing on factual issues which they contended

had not been resolved by the court’s opinion (App. 260-

262). This motion was strenuously opposed by the State,

which urged that any issues not argued—or even noted—

in the appellants’ brief had been abandoned and that,

in any event, all of the appellants’ claims had been ef-

fectively rejected by the court. The State also urged that

the appellants were improperly seeking to resurrect aban-

doned claims in order to secure a further injunction against

chapter 363 becoming operative.

The Supreme Court of New Jersey granted the appel-

lants’ motion and remanded the matter to the trial court

“ .. for such further proceeding, if any, that that court

may deem appropriate ... .” (App. 340). However, it

further directed that there should be no further restraint

against chapter 363 going into effect. At that point, in

order to eliminate any questions as to the finality of the

judgment of the Supreme Court of New Jersey and thus

to pave the way for review by the Court, the appellants

elected not to pursue any further proceedings before the

trial court. They therefore entered into a consent order

dismissing the remaining counts of their complaint (App.

342-343).

On January 9, 1976, appellants filed an appeal with

the Court and on April 5, 1976, probable jurisdiction was

noted.

14

Summary of Argument

Simply stated, the question before the Court is whether

a state violates the Commerce Clause by acting to fulfill

its obligation to provide disposal facilities for waste gen-

erated within its boundaries without also allowing such

facilities to be used for waste originating in other states.

Although it is well established that, even without im-

plementing legislation by Congress, the Commerce Clause

imposes limitations upon the power of the states, it is

also clear that the states retain broad power to legis-

late protection for their inhabitants in matters of local

concern such as public health and the environment. When

confronted with challenges to state legislation which fur-

thers legitimate local interests but simultaneously imposes

a significant burden upon interstate commerce, the Court

has been called upon to make the necessary accommoda-

tion between local needs and the overriding requirement

of freedom for national commerce. On the other hand,

when there have been challenges to legislation which does

not implicate any substantial interests in national com-

merce and local interests are paramount, the Court has

found the Commerce Clause not to be violated.

The prohibition against the disposal within New Jersey

of waste originating out of state falls within the basic

power of the state to protect its environment and the

health of its inhabitants. It does not have the pur-

pose or effect of furthering New Jersey commercial in-

terests to the economic detriment of out-of-state interests.

Rather, its sole purpose and effect is to protect the en-

vironment of the state and the health of its inhabitants

by reducing the overall volume of waste disposed on lana

within the state. Therefore, the ban on the dumping of

out-of-state waste does not implicate any substantial na-

15

tional interest in the maintenance of an open economy

which the Commerce Clause was designed to protect, but

rather it represents an appropriate exercise of the basic

police power of the states in furtherance of the health

and welfare of its inhabitants.

ARGUMENT

POINT I

The prohibition against the disposal within New

Jersey of waste originating out of state falls within

the basic power of the State to protect its environment

and the health of its inhabitants and thus does not

violate the Commerce Clause of the United States

Constitution.

It has been well established at least since Cooley v.

Board of Wardens, 12 How. 299 (1851) that the Commerce

Clause not only provides an affirmative grant of author-

ity to Congress, but also “. . . even without implement-

ing legislation by Congress is a limitation upon the power

of the States.” Freeman v. Hewit, 329 U.S. 249, 252

(1946). It is equally well established, however, “ . . that

under our constitutional scheme the States retain _—

wer’ to legislate protection for the citizens in matters

of local nr s0 such as public health, .. .” Great AP.

Tea Co. v. Cottrell, 96 S.Ct. 923, 928 (1976). As the

Court noted in H.P. Hood & Sons v. DuMond, 336 US.

525, 533 (1949), “[t]his distinction between the power

of the State to shelter its people from menaces to their

health and safety and from fraud, even when those dan-

gers emanate from interstate commerce, and its lack

of power to retard, burden or constrict the flow of

16

such commerce for their economic advantage, is one

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

local concerns over which the states retain comprehen-

sive authority, even when interstate commerce may be

affected, include protection of the environment. Huron

Portland Cement Co. v. Detroit, 362 U.S. 440 (1960); ef.

Berman v. Parker, 348 U.S. 26 (1954).

The Court frequently has been confronted with chal-

lenges to state legislation which furthered legitimate local

interests but simultaneously imposed a significant burden

upon interstate commerce. In such cases, “... the Court

in absence of congressional guidance is called upon to

make ‘delicate adjustment of the conflicting state and fed-

eral claims,’ ... thereby attempting ‘the necessary accom-

modation between local needs and the overriding require-

ment of freedom for the national commerce.’” Great

A. & P. Tea Co. v. Cottrell, swpra, at 928. The leading

cases in this area well illustrate how delicate this process

of accommodation has been. Thus, in Bibb v. Navajo

Freight Lines, 359 U.S. 520 (1959), the Court found the

Commerce Clause to be violated by a statute requiring

a particular type of rear fender mudguard on trucks and

trailers operated within a state, but in South Carolina

State Highway Dep’t v. Barnwell Bros., 303 U.S. 177

(1938) it sustained state limitations on the weight and

width of trucks and trailers. In Southern Pacific Co. v.

Arizona, 325 U.S. 761 (1945), the Court held state stat-

utes imposing limitations on the length of freight cars

to be violative of the Commerce Clause, but it has con-

sistently sustained state full crew laws. See e.g. Brother-

hood of Loc. F & E v. Chicago, RI. é P.R.R. Co., 393 U.S.

129 (1968). And in Dean Milk Co. v. Madison, 340 U.S.

349 (1951), the Court held the Commerce Clause to be

violated by an ordinance which prohibited the sale of

17

milk in a municipality unless it had been pasteurized and

bottled at an approved plant located within five miles of

the municipality, but in Milk Control Board v. Eisenberg

Farms Products, 306 U.S. 346 (1939), it sustained a stat-

ute requiring interstate milk dealers to keep records, to

post a bond to guarantee prompt payment to purchasers

and to pay minimum prices to producers. Although the

results varied, the Court was confronted in all these cases

not only with a legitimate local interest but also an in-

disputable burden upon the open national market which

the Commerce Clause was designed to protect. There-

fore, it carefully scrutinized any burdens on the free flow

of interstate commerce with the consequence that any dis-

crimination against interstate transactions almost invar-

iably resulted in a deciaration of invalidity.

There have been other cases, however, in which no sub-

stantial interests in national commerce were implicated

and local concerns were paramount. The Court has sus-

tained state legislation under such circumstances without

engaging in the delicate process of balancing required

when “. . . regulation of local matters may also operate |

as a regulation of commerce... .” Southern Pacific Co.

v. Arizona, swpra, at 768. Cf. Wilson v. The Blackbird

Creek Marsh Co., 2 Pet. 245 (1829). Local interests are

most clearly paramount in preventing the transportation

into a state of articles which are inherently injurious

to public health, safety and welfare. As the Court stated

in Sligh v. Kirkwood, 237 U.S. 52, 60 (1915):

“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 ar-

ticles as would spread disease and pestilence, is

well-established. Such articles, it has been declared

18

by this Court, are not the 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 outlawed

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 introduc-

tion, and such exercises of power cannot be con-

sidered regulations of commerce prohibited“by the

Constitution.

“‘Nor does it make any difference that such regu-

lations 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).

To the same effect, the Court said in Pike v. Bruce Church,

397 U.S. 137, 143-144 (1970):

“(T]o the extent the Act forbids the shipment of

contaminated or unfit produce, it clearly rests on

sure footing. For, as the Court has said, such pro-

duce is ‘not the legitimate subject of trade or com-

merce, nor within the protection of the commerce

clause of the Constitution.’ ”

‘This principle was applied in Clason v. State of In-

diana, 306 U.S. 439, 442-443 (1939), where the Court up-

held an Indiana statute which in effect prohibited the in-

terstate transportation of animal carcasses not slaughtered

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

Asbell v. Kansas, 209 U.S. 251 (1908); Smith v. St. Lowis

19

é S.W.R. Co., 181 U.S. 248 (1901); Rasmussen v. Idaho,

180 U.S. 198 (1901); Bowman v. Chicago & Northwestern

Ry. Co., 125 U.S. 465 (1888). 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 U.S.

at 443. The Court emphatically stated:

“Here, contrary to what seems to be the insistence

of counsel, the State has not recognized dead horses

as legitimate articles of intrastate 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-

out delay by prescribed methods. All this is part

of a workable scheme to secure prompt removal of

decaying carcasses and thus protect against obvi-

ous evils.

“We can find no substantial basis for the charge

of discrimination against legitimate interstate com-

merce. That any real burden upon commerce which

the State is not free to inhibit will result from the

challenged statute seems impossible.

“There is no suggestion of conflict with a federal

enactment. The mere power of the Federal Gov-

ernment to regulate interstate commerce does not

disable the State from adopting reasonable meas-

ures 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 appropri-

ate to this lawful end.” Id. at 443-444.

It is clear that the prohibition against the disposal

within New Jersey of waste originating out of state falls

within the basic power of the State to protect its en-

vironment and the health of its inhabitants and thus does

not violate the Commerce Clause. It does not matter

whether it is found that waste intended for disposal is

not a legitimate item of commerce (Clason v. Indiana,

Swpra) or that environmental and health concerns of the

State are paramount to the commercial interests of the

appellants. Cf. Robertson v. California, 328 U.S. 440,

458-459 (1945). The conclusion is the same. As stated

by the Supreme Court of New Jersey, “. . . where the

effect upon trade and commerce is relatively slight, . . .”

and “, . . where at the same time the values sought to be

protected by the state legisiation are ... crucial to the

welfare of its citizens . . .”, there should be “. . . no hesi-

tancy in sustaining the state action.” (App. 251-252).

The transportation and disposal of waste is vastly dif-

ferent from the commerce in which the Founding Fathers

sought to maintain an open national market. The appel-

lants’ business does not involve the sale of a product or

resource, such as milk, Hood & Sons, Inc, v. DuMond,

supra, or natural gas, Pennsylvania v. West Virginia,

supra; West v. Kansas Natural Gas Co., swpra. Nor does

it involve an instrumentality of national commerce, such

as railroads, Brotherhood of Loc. F & E v. Chicago, RI. 4

P.R.R. Co., swpra, or highways, Bibb v. Navajo Freight

Lines, swpra. Rather, their business involves the funda-

mental responsibility of government, under the police

power, to provide for the disposal of waste generated by

its inhabitants. Furthermore, the sole purpose and effect

of the statute is not economic protectionism but rather

to further the health and environmental interests of the

State. No New Jersey commercial interests stand to gain

advantage over competitors from outside the state as a

21

result of the ban on dumping out-of-state waste. On the

contrary, among the appellants are New Jersey landfill

operators. The complaint is not that New Jersey has

forged an economic preference for its own commercial in-

terests, but rather that it has denied a small group of

its entrepreneurs an economic opportunity to traffic in

waste in order to protect the health, safety and welfare

of the citizenry at large. The ban on dumping out-of-state

waste therefore does not implicate any susbtantial na-

tional interest in the maintenance of an open economy

which the Commerce Clause was designed to protect.

On the other hand, the ban does serve a vital local in-

terest in the preservation of the state’s environment and

the health of its inhabitants. There is a solid waste

crisis in New Jersey. 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:

“The Legislature finds and determines that since

the enactment of P.L. 1973, c. 39 (C. 13:11-1, et

seq.) the volume of solid and liquid waste continues

to repidly increase, that the treatment and dis-

posal 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 orig-

inated 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

wastos generated outside of the State be pro-

hibited.”

a

22

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 legisla-

tive 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-

cu of the Township of Ocean, 64 N.J. 190, 193, 314

A. 2d 65 (1974).

- « >

“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.

* 7

“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.),

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

indeed the point is self-evident. Likewise, the de-

trimental effects which sanitary landfills have upon

the environment have been acknowledged:

‘* * * Sanitary landfills conducted on virgin land

forever ruin the possibilty of preserving the site

for conservation. Additionally, such landfill op-

erations can have an adverse effect on the eco-

logical 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.’ [Municipal Sanitary Landfill Aw

thority v. Hackensack Meadowlands Development

Commission, 120 N.J. Super. 118, 122 (App. Div.

1972) ; emphasis in original]’”

“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

generations the natural habitat and ecological

values which landfill usage would destroy.” (App.

231, 233, 245).

These legislative and judicial findings are solidly

grounded on the Basis and Background Statement of the

New Jersey Department of Environmental Protection,

quoted in the Counterstatement of the Case, and the re-

port of the State of New Jersey County and Municipal

Government Commission, entitled Solid Waste: A Co-

ordinated Approach (1972), of which judicial notice was

taken by the Supreme Court of New Jersey (App. 233).

Since there is a reasonable basis in the record for the

findings of the New Jersey Legislature and Supreme

Court of New Jersey, they should be accepted on appeal

24

by the Court. Evco v. Jones, 409 US. 91, 94 (1972);

Local Union No. 10 v. Graham, 345 U.S. 192, 197 (1952) ;

Welch v. Swasey, 214 U.S. 91 (1909). As the Court noted

in Evco v. Jones, supra, the factual findings of a state

supreme court will be re-examined only in “exceptional

circumstances.” No showing of such “exceptional circum-

stances” has been made in this case.

On the contrary, the general literature on the subject, of

which the Court can and should take judicial notice

(Parker v. Brown, 317 U.S. 341, 363 (1943); Sligh v.

Kirkwood, swpra, at 61; see also Davis, A System of

Judicial Notice Based on Fairness and Convenience, Per-

spectives of Law 69 (1964)), fully corroborates the find-

ings of the Supreme Court of New Jersey concerning the

danger to the environment and public health from land-

fills. Gas and Leachate from Landfills: Formation, Col-

lection and Treatment, Proceedings of a Research Sym-

posium held at Rutgers University, U. S. Environmental

Protection Agency, March 1976 (hereinafter Gas and

Leachate); Esmaile, Houshang, “Control of Gas Flow

from Sanitary Landfills,” Journal of the Environmental

Engineering Division, Proceedings of the American Society

of Civil Engineers, Vol. 101, EE4, August 1975 (herein-

after Control of Gas Flow); Hazardous Waste Disposal

Damage Reports, U.S. Environmental Protection Agency,

Office of Solid Waste Management Programs, June 1975;

Schmalensee, Richard, Ramachandra Ramarathan, Wolf-

hard Ramm and Dennis Smallwood, Measuring External

Effects of Solid Waste Management, U. &. Envircnmental

Protection Agency, March 1975 (hereinafter Measuring

External Effects); Blannan, Janet and Mirdza Peterson,

“Survival of Fecal Coliforms and Fecal Streptococci in a

Sanitary Landfill,” News of Environmental Research in

Cincinnati, U. S. Environmental Protection Agency, April

12, 1974 (hereinafter Survival of Fecal Coliforms) ; Miller,

David, Frank DeLuca and Thomas Tessier, Ground Water

Contammation in the Northeast States, U. S. Environ-

mental Protection Agency, June 1974 (hereinafter Ground

Water Contamination). It has long been widely recog-

nized that landfills are unsightly, a source of noxious

odors and vermin and, with the introduction of heavy

machinery, exceedingly noisy.' It is also now known that

landfills are almost certain sources of ground and surface

water pollution,? that they produce dangerous gases as

*“Noise at sanitary landfill sites is generated by the unloading of

refuse, including the operation of compactor and transport trucks as

they disgorge their cargoes and the constant operation of the heavy

equipment used for spreading, compacting, and covering the refuse.”

Measuring External Effects, supra at 219.

Since powerful machinery is required for spreading and compact-

ing in order to reduce vermin, odors and later land settling, noise is

a major problem, especially for landfills located in residential areas.

2In Ground Water Contamination, supra, an evaluation of water

contamination in 11 northeast states including New Jersey, the

authors consider that the hundreds of reported cases of such con-

tamination represent only a small fraction of the actual pollution

present. They conclude that:

“The thousands of acres of landfills containing municipal and

industrial solid wastes are an almost universal source of

ground-water contamination in the region.” Jd. at 1.

Chapter IV, Landfills, gives some indication of the enormity of the

leachate problem in the northeastern part of the United States.

Though new landfill developers in New Jersey are attempting to

install liners and to treat the leachate collected, “little experience

exists with regard to the various methods that might be successful

in the handling of this complex fluid.” Jd. at 208. It is felt that state

regulations are helpful but that true characteristics of leachate from

the various types of landfills, the ability of soils to reduce the con-

centration of pollutants and the effects of cover materials at landfill

sites is not sufficiently understood. The technology

(Footnote continued on following page)

ee

26

a byproduct of both aerobic and anaerobic decomposition’

and that they are severely limited as to potential use

(Footnote continued from preceding page)

“... for eliminating the landfill as a continuing source of con-

tamination (has) not been developed, and, because of this,

there do not appear to be any clear-cut guidelines or policies

that can be followed. The same holds true for how to contain

or remove the pollutant after it has entered the ground.” Jd.

at 218.

8 All landfills (sanitary or otherwise) produce gases—initially car-

bon dioxide and later, as the oxygen level decreases, methane. “[T]he

greater the quantity, putrescibility, moisture content and temperature

of the refuse . . . the higher the rate of gas production within the

landfill.” Measuring External Effects, supra at 236. Additionally,

these same variables make it difficult to predict the active lifespan of

the deposited refuse. One study indicates that decomposition reac-

tions may continue for up to 950 years.

“The problems of fire and explosion hazards from landfills

occur when methane gas . . . seeps into enclosed areas such as

adjacent sewer lines or the foundations of buildings located

above the fill. . . . Methane seepage from completed landfills

is both inevitable and sufficiently abundant to produce a sig-

nificant hazard.” Jd. at 238, 239.

Completed landfills are not easily converted into safe building sites

although gas vents have been used with limited success for controlled

escape and burning.

The authors discuss a study of gas seepage in a 29 building public

housing project constructed on fill. Within 21 months after con-

struction explosive mixtures of methane were found in crawl spaces

below two of the buildings in the development. As attempts to seal

the foundations proved unsuccessful it became necessary to install

automatic ventilation equipment, especially since the methane accum-

ulation had rapidly increased during the second and third years of

monitoring.

27

when completed.‘ The standards originally set for the

operation of sanitary landfills (daily compaction and soil

cover) are understood today to be inadequate. Attempts

to minimize the “leaching” of organic and inorganic pol-

lutants from landfili sites through the use of liners are

still in the experimental stage.° Many have been found

faulty. Attempts have been made to vent accumulated

gases but the danger of fire and explosion has not been

liminated.*

* Fill materials slowly decompose causing a gradual shifting and

settlement over the extent of a given site. Many factors are invol-

ved: the weight and composition of the fill, the weight of cover

materials, the amount of rainfall and, if the land is used for construc-

tion the weight of the structure placed there. Since a number of

these factors are unpredictable (the diverse nature of fill materials

for example) “landfills are a particularly poor foundation material

for construction”. Jd. at 259.

5’ Haxo, Henry E., Assessing Synthetic and Admixed Materials

for Lining Landfills,” Gas and Leachate, supra, 129. In “Survival

of Fecal Coliforms,” supra, the authors concludec ‘hat pathogenic

microorganisms may be “transmitted into the envirenment through

the leaching process” past an eighteen inch clay soil liner (considered

“safe” by many experts in the field). Jd. Even where

leachate is collected for treatment, inert organic matter and totally

dissolved inorganic solids cannot easily be removed. See Pohland,

Frederick G., “Landfill Management with Leachate Recycle and

Treatment: An Overview,” Gas and Leachate, supra. 159.

* Flower, Franklin, “Case History of Landfill Gas Movement

Through Soils,” Gas and Leachate, supra, 177, and “Control of Gas

Flow,” supra at 555. “Case History” describes the death of peach

trees in commercial orchards in Glouchester County, the death of

ornamental vegetation and the entry of combustible gases into pri-

vate homes in Camden County and the destruction of farm crops in

Burlington County. The author comments, “Sometimes gas vents

prevent the lateral migration (of possibly flammable gas) and some-

times they do not.” Jd. at 188.

(Footnote continued on following page)

28

It may be, as the materials cited by the appellants

suggest, that these health and environmental problems

can be ameliorated if an ideal landfill site can be located

and the operator, either voluntarily or as a result of strict

governmental regulation, conducts his disposal business in

accordance with the latest state of the art. However,

nothing in the Commerce Clause requires the New Jer-

sey Legislature to withhold taking immediate action to

protect the State’s health and environment in the hope

that these ideal conditions someday may materialize.

Conditions in the real world are rarely, if ever, ideal.

Under the circumstances, there is no basis for question-

ing the findings of the New Jersey Legislature and Su-

preme Court of New Jersey that the disposal of solid

waste in landfills represents a present threat to the health

and environment of the inhabitants of New Jersey.

It also is fully consistent with the Commerce Clause to

deal with this problem by taking reasonable steps to re-

duce the overall volume of waste being disposed on New

Jersey land. Thus, in Bradley v. Public Utility Com’rs,

289 U.S. 92 (1983), the Court rejected a Commerce Clause

challenge to the denial by the Ohio Public Utilities Com-

mission of a certificate of convenience and necessity to

operate an interstate bus route based upon the fact that

the highway over which the service was to be conducted

(Footnote continued from preceding page)

Also, in Hazardous Waste Disposal Damage Reports compiled by

the U.S. Environmental Protection Agency’s Office of Solid Waste

Management Programs, supra, the agency describes three separate

instances of waste disposal practices which resulted in arsenic poison-

ing, the destruction of farmland and, in New Jersey, the death of a

bulldozer operator. The New Jersey incident occurred at the Kin-

Buc Landfill adjacent to the Raritan River where chemical wastes

of unkown industrial origin exploded.

was already overly congested. In a unanimous opinion

written by Justice Brandeis, the Court said that “[s]afety

may require that no additional vehicle be admitted to the

highway” (289 U.S. at 96), even though the effect was

to absolutely prevent the operation of the proposed new

interstate bus route. If such a restriction may be im-

posed on a basic instrumentality of interstate commerce,

it follows a fortiori that the transportation into a state

of waste intended for dumping may be prohibited so as

to reduce the overall magnitude of an established public

health and environmental problem.

Therefore, in the words of the Supreme Court of New

Jersey, the ban upon the disposal in New Jersey of out-of-

state waste has a “relatively slight” “effect upon trade

and commerce” whereas it is “crucial to the welfare” of

the citizens of New Jersey. It follows that the ban is not

offensive to the open national economy objectives of the

Commerce Clause.

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 Com-

merce Clause places on the states, in the absence of con-

gressional action, but deal instead with the breadth of the

power which the clause confers upon Congress. See

e.g. Umited States v. Pennsylvania Refuse Removal As-

sociation, 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). Thus, the Court has held that Con-

gress has the power under the Commerce Clause to enact

legislation prohibiting the intersate transportation of pros-

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

30

kidnapped person (Gooch v. United States, 297 U.S. 124

(1936). However, it would be ridiculous to suggest that

the Commerce Clause may be invoked tu prevent action by

the states to combat these evils. Therefore, although

Biship Processing recognized that the movement of air

pollutants across state lines provides an adequate juris-

dictional basis under the Commerce Clause for the enact-

ment of the Clean Air Act (42 U.S.C.A. $1857, et seq.),

this does not mean that the Commerce Clause would

present an obstacle to the enactment of legislation by

New Jersey to prevent all of Pennsylvania’s air pollution

from being collected and shipped to New Jersey for re-

lease on the property of a well-paid entrepreneur. Simi-

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

Detroit, 362 U.S. 440 (1960) were collecting all of the

smoke which was produced while steaming the Great

Lakes and were releasing it in Detroit Harbor, an ordi-

nance prohibiting such a practice would not be struck down

by the Court. The cases dealing with the reach of con-

gressional power under the Commerce Clause are thus in-

appropriately relied upon by the appellants. Cf. Hipolite

Egg Co. v. United States, 220 U.S. 45, 57-58 (1911).

The appellants also rely on the “natural resource” cases

to support their attack upon chapter 363. Pennsylvania v.

West Virginia 262 US. 553 (1923); West v. Kansas

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

all dealt with statutes which attempted, as described in

Pennsylvania v. West Virgimia, “to regulate the inter-

state business to the advantage of the local customers.”

262 U.S. at 597-598. Furthermore, it is clear that natural

resources such as oil and gas, are located in some states

but not in others, and that restrictions upon interstate

commerce in resources would have an adverse impact upon

the national economy. See Oklahoma v. Kansas Nat.

Gas Co., 221 U.S. 229, 255 (1911). No comparable claim

31

can be made with respect to the disposal of waste. It is

also clear that disposal of waste presents immediate prob-

lems with respect to health and environment which were

not present in the “natural resource” cases. Therefore,

these cases involve, under the analysis contained in Dw

Mond v. Hood, supra, state regulation to “. . . constrict

the flow of . . . commerce for [its] economic advantage

. .’, not an attempt by the State “. . . to shelter its peo-

ple from menaces to their health or safety. . . .” 336

US. at 533.

This case is similar in many respects to Hughes v.

Alexandria Scrap Corp., 44 Law Week 4959 (decided June

24, 1976). Hughes involved the environmental hazard of

disposing of abandoned automobiles; this case deals with

the environmental hazard of disposing of all forms of

solid wastes. In Hughes, the State of Maryland pursued

its environmental interests in part by a statutory sys-

tem of bounties designed to encourage the recycling of

abandoned automobiles. To prevent state funds from

being dissipated by payments for automobiles abandoned

in other states, it enacted amendments which had the prac-

tical effect of restricting the bounties to Maryland pro-

cessors. This made it economically impractical for out-of-

state processors to compete with Maryland processors in

the purchase of abandoned automobiles from wreckers

thereby substantially reducing this form of interstate

commerce. The Court upheld this legislation essentially

on the theory that the payment of bounties by the State

to further its environmental interests was not the kind

of action with which the Commerce Clause is concerned.

Since New Jersey has pursued its environmental inter-

ests in limiting the ruin of its land by landfill operations

by prohibiting the transportation into New Jersey for

disposal of waste originating out of state, rather than ex-

pending state funds for this purpose, the subsidy ra-

32

tionale of Hughes is not directly applicable. However,

the underlying purpose “. . . of protecting the state’s en-

vironment” (Jd. at 4963) is common to the two statutes,

and there are a number of significant respects in which

the New Jersey statute implicates the free market prin-

ciples of the Commerce Clause to a lesser extent than

did the Maryland statute. First, whereas the Maryland

statute confers an economic advantage upon Maryland

processors to the detriment of out-of-state processors, the

New Jersey statute creates no economic preference for

local economic interests. On the contrary, some of the

appellants are New Jersey landfill operators who claim

that they will lose business as a result of New Jersey’s

effort to protect its environment. Secondly, whereas the

recycled scrap metal affected by the Maryland statute

was indisputably an appropriate subject of interstate com-

merce, the New Jersey statutes does not affect any mate-

rials intended for re-cycling but rather is limited to the

disposal of waste.” Finally, whereas it was cogently

argued in Hughes that Maryland’s environmental inter-

ests could be pursued equally effectively with less impact

upon interstate commerce, there is no reasonable and eco-

nomical alternative available to New Jersey to reduce the

overall quantity of waste being dumped within its borders.

Indeed, the appellants appear to concede as much by

limiting their factual claims to the thesis that it is pos-

sible to operate landfills without significant environ-

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

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

bage for swine) for any purpose whatsoever. However, the Su-

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

with the regulations promulgated pursuant thereto prior to its effec-

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

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

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

33

mental harm. Therefore, the exclusion of out-of-state

waste transported for disposal within New Jersey is more

clearly compatible with the free market objectives of the

Commerce Clause than the program of economic subsidi-

zation for the recycling of abandoned automobiles upheld

in Hughes v. Alexandra Scrap Corp.

It is also significant that Pennsylvania does not take

the same cavalier attitude towards the health and environ-

mental dangers of landfills manifested by Philadelphia’s

brief when the landfills are located on the Pennsylvania

side of the border. On the contrary, Pennsylvania law

leaves political subdivisions of that state free to exclude

waste originating outside of their boundaries. As stated

in the affidavit of the Commissioner of Streets of the City

of Philadelphia:

“13. Sanitary landfills in Pennsylvania are not

public utilities. The Pennsylvania Department of

Environmental Resources has been legislatively em-

powered to regulate such facilities, but cannot com-

pel same to accept solid waste from any soure:

whatever.” (App. 265)* (See also paragraphs 9

through 12 of Lind affidavit, dated December 8,

1975, at App. 293-296.)

The appellant Pennsylvania political subdivision is thus

in the anomalous position of invoking the Commerce

Clause as a sword to force New Jersey to accept its

8 By contrast, New Jersey has comprehensive legislation regula-

ting disposal of waste which prohibits one political subdivision from

excluding solid waste originating in another political subdivision.

N.J.S.A. 48:13A, et seg. (Solid Waste Utility Control Act, 1970) ;

N.J.S.A. 13:1E-1, et seg. (Solid Waste Management Act of 1970) ;

See So. Ocean Landfill v. Mayor & Coun. Tp. of Ocean, 64 N. J.

190, 314 A2d 65 (1974).

34

waste in an effort to solve disposal problems caused by

the laws of its own state which allow the immediately

surrounding Pennsylvania political subdivisions to exclude

Philadelphia waste. This circumstance serves to under-

score the fact that what is involved in this case is not

preservation of an open national economy but an attempt

by a political subdivision of one state to use the soil and

environment of a sister state in the discharge of its obli-

gation under the police power to provide for the disposal

of the waste of its inhabitants.

Indeed, where efforts by one state, or its political sub-

divisions, to dispose of waste in a manner harmful to

the inhabitants of another state have come before the

Court, it has not been the disposing states which have

sought to invoke the Commerce Clause as a license for the

exportation of their waste problems, but rather the recip-

ient states which have brought original actions, often suc-

cessfully, against the disposing states to prevent actions

harmful to their health and environment. See e.g., Illinois

v. City of Milwaukee, 406 U.S. 91 (1972); New Jersey v.

New York City, 283 U.S. 473 (1931); North Dakota v.

Minnesota, 263 U.S. 365 (1923); New York v. New Jer-

sey, 256 U.S. 296 (1921); Georgia v. Tennessee Copper

Co., 206 U.S. 230 (1907); Missouri v. Illinois & Chicago

District, 180 U.S. 208 (1901). The Court in Georgia v.

Tennessee Copper Co., swpra, in granting an injunction

to prevent a Tennessee company from discharging noxious

gas from their factory into Georgia, appropriately noted

that:

“Tt is a fair and reasonable demand on the part

of a sovereign that the air over its territory should

not be polluted on a great scale by sulfurous acid

gas, that the forests on its mountains, be they

better or worse, and whatever domestic destruction

they have suffered, should not be further destroyed

or threatened by the act of persons beyond its

control, that the crops and orchards should not be

endangered from the same source.” 206 U.S. at

238.

If conduct offensive to New Jersey took place solely in

Pennsylvania as, hypothetically, by the appellants pro-

jecting their waste across the Delaware River into New

Jersey, it would require such an action for New Jersey

to protect the interests of its inhabitants. However, since

the actual method of the disposal of Pennsylvania waste

in New Jersey involves conduct within the jurisdiction of

New Jersey, it was able to deal with the problem directly

through prohibitory legislation. In any event, the point

is that actions by one state which adversely affect the

air, land and water of another state have never been con-

ceived to be protected by the Commerce Clause.

In short, this case simply does not involve the national

interest in the maintenance of an open economy which

the Commerce Clause was designed to protect. Rather, it

involves the fundamental responsibility of a state to

provide for the disposal of waste generated by its inhabi-

tants with the least possible adverse impact upon health,

the environment and land use. Therefore, the Court

should affirm the conclusion of the Supreme Court of New

Jersey that a state may prohibit the use of its land as a

disposal site for waste generated within a political sub-

division of another state.

36

POINT II

The record before the Supreme Court of New Jersey

provided a reasonable basis for the legislative finding

that the New Jersey environment is threatened by the

disposal of waste originating out of state and thus

there was no need for a plenary hearing before the

trial court.

Appellants’ final argument is that the Supreme Court

of New Jersey somehow thwarted their efforts to develop

a full record and thereby denied them 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 sum-

mary judgment “. . . only upon the issues of federal pre-

emption and discrimination against interstate commerce

...” (App. 116-117) and the State cross-moved for sum-

mary judgment. Thus the essential thesis upon which the

matter was submitted to the trial court was that, regard-

less of the impact upon public health and the environ-

ment, 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 dumping 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 vio-

lated the Commerce Clause by “discriminating” against

waste originating out of state. No serious question was

raised as to the validity of legislative findings that en-

vironmental degradation was being aggravated by the

dumping in New Jersey of wastes originating out of state.

Nor did the appellants pursue, as alternative grounds

for affirmance, any of the other legal theories which had

37

been projected in shot gun form in their original com-

plaint.* Rather, it was only after the Supreme Court of

New Jersey had issued its opinion upholding the consti-

tutionality of chapter 363 that the appellants, on a motion

for remand to the trial court, first raised questions con-

cerning the findings of the New Jersey Legislature and

the Supreme Court of New Jersey as to the deleterious

impact on the environment and public health of the dump-

ing of out-of-state wastes in New Jersey (App. 259-287).

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.

340). Therefore, assuming that any facts remained to

be heard, the appellants were given an opportunity to

develop those facts. However, the appellants deliberately

elected not to proceed before the trial court and instead

to enter into a consent dismissal with prejudice.

There is, therefore, absolutely no factual basis for the

appellants’ contention that they were denied due process

of law by the course of proceedings in the state courts.

Rather, the appellants properly may be bound to the

record as they elected to develop it in the state courts.

* It is well established under New Jersey practice that a judgment

may be supported on appeal not only on the grounds relied by the

lower court but on any other grounds which will support the result.

Irving Isko v. Planning Bd. of Tp. of Livingston, 51 N. J. 162, 175,

238 A2d 457, 464 (1968). It is also a fundamental policy of state

judicial administration that all aspects of a controversy should be

joined together in a single legal proceeding so as to avoid the delay

and wastage incident to the fragmentation of litigation. Falcone v.

‘Middlesex County Med. Soc., 47 N. J. 92, 219 A2d 50 (1966). This

means that where feasible a party who has prevailed in a lower court

on one of several alternate theories should present any theory which

may support the judgment to.an appellate court.

38

As the court stated in Reid v. Colorado, 187 U.S 137,

152 (1902) in a related context:

“The accused seems to have been content to rest his

defense upon such grounds as arose upon the face

of the local statute, without reference to any evi-

dence bearing upon the reasonableness or unreason-

ableness of the particular methods adopted by the

state to protect its domestic animals. He seems

to have been willing to risk the case upon the simple

proposition—based upon the words of the state

enactment and upon the act of Congress, rein-

forced by certain regulations made by the Agri-

cultural Department—that the local statute was

inconsistent with that act, and with the general

power of Congress to regulate interstate com-

merce.

“As therefore, the statute ... only prescribes

certain methods to protect the domestic animals

of Colorado from contact with live stock coming

from that territory between certain dates, and as

those methods have been devised by the state under

the power to protect the property of its people from

injury, and do not appear upon their face to be

unreasonable, we must, in the absence of evidence

showing the contrary, assume that they are appro-

priate to the object which the state is entitled to

accomplish.”

Appellants’ explanation for their failure to pursue the

remand to the trial court is to say that they needed an in-

junction against the effectiveness of chapter 363 and,

since the Supreme Court of New Jersey had foreclosed

the grant of that relief in the state system, it was rot

in their strategic best interests to continue with state

court proceedings. However, appellants’ strategic situa-

tion 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 under 28

U.S.C. §1257(2) to final judgments. Therefore, if there

were any substance to appellants’ argument, 28 U.S.C.

1257(2), to the extent it permits appeals to the Supreme

Court of the United States only from final judgments,

would be subject to attack on due process grounds. The

Court therefore should reject the appellants’ attempt to

characterize the end result of their own procedural

maneuvering as a denial of due process by the Supreme

Court of New Jersey.

Most importantly, eveu apart from the fact that it was

appeiiants’ trial strategy which determined the course of

proceedings in the state courts, it is clear that the Su-

preme Court of New Jersey based its decision upon a

fully adequate record. As discussed in Point I, the Su-

preme Court of New Jersey had before it the Basis and

Background Statement of the New Jersey Department

of Environmental Protection, the report of the State of

New Jersey County and Municipal Government Commis-

sion entitled Solid Waste: A Coordinated Approach

(1972), the affidavit of the Chief of the New Jersey Bureau

of Solid Waste Management and of course the court’s

own findings in prior proceedings. These materials showed

a reasonable basis for the legislative findings that the

disposal of waste causes environmental and public health

problems, that there is a siicriuge of landfill space in the

state and that the disposal of waste originating out-of-

state increases the overall volume of waste dumped within

the state and thereby aggravates the state’s solid waste

disposal problems. e New Jersey Legislature’s con-

clusions as to the dangers from solid waste disposal are

-

40

re-inforced by additional documentary materials of which

the Court may take judicial notice. All of these sources

provide a reasonable basis for sustaining the judgment

of the New Jersey Legislature in banning the dumping

within New Jersey of waste originating out of state. Evco

v. Jones, supra; Local Union No. 10 v. Graham, swpra;

Welch v. Swasey, swpra.

The mere fact that an opinion may have been expressed

by appellants that landfills can be operated withonit dam-

age to public health and the environment does not give

rise to a material contested issue of adjudicative fact

requiring a trial. The judgment of the New Jersey Legis-

lature is not subject to invalidation simply on the possi-

bility that, after a contest between expert witnesses, a

court may conclude that the experts attacking the legis-

lative judgment have made the more persuasive case. As

the Court staved in South Carolina State Highway Dep’t

v. Barnwell Bros., swpra, at 191-192:

“fCjourts do not sit as legislatures, either state

or national. They cannot act as Congress does

when, after weighing all the conflicting interests,

state and national, it determines when and how

much the state regulatory power shall yield to the

larger interests of a national commerce.

“Since the adoption of one weight or width regu-

lation, rather than another, is a legislative not a

judicial choice, its constitutionality is not to be

determined by weighing in the judicial scales the

merits of the legislative choice and rejecting it if

the weight of evidence presented in court appears

to favor a different standard. ... Being a legisla-

tive judgment it is presumed to be supported by

facts known to the legislature unless facts judicially

41

known or proved preclude that possibility. Hence,

in reviewing the present determination we examine

the record, not to see whether the findings of the

court below are supported by evidence, but to as-

certain upon the whole record whether it is pos-

sible to say that the legislative choice is without

rational basis.”

The same principles of judicial restraint were expressed

in Justice Holmes’ opinicn in Hebe Co. v. Shaw, 248 U.S.

297, 303-304 (1918):

“If the character or effect of the article as in-

tended to be used ‘be debatable, the legislature is

entitled to its own judgment, and that judgment

is not to be superseded by the verdict of a jury,’

or, we may add, by the personal opinion of judges,

‘upon the issue which the legislature has decided.’

Price v. Illinois, 238 U.S. 446, 452... . The answer

to the inquiry is that the provisions are of a kind

familiar to legislation and often sustained, and that

it is impossible for this court to say that they

might not be believed to be necessary in order to

accomplish the desired ends.”

See also Hughes v. Alexandria Scrap Corp., swpra, 44 Law

Week at 4964. Similarly, since the record in the present

ease contains adequate support for the legislative find-

ings that the exclusion from New Jersey of waste orig-

inating out of state reasonably would serve to protect

the State’s health and environment, there would be no

basis for holding trial proceedings even if the appellants

had not deliberately declined to avail themselves of this

opportunity.

Finally, it should be noted that if any appellant landfill

operator really were in a position to establish that it could

42

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... .” If any party were able to show

that any exemptions from the prohibition against dump-

ing waste originating out of state could be adopted “.. .

without endangering the public health, safety and wel-

fare . . .”, it must be presumed that the Commissioner

would extend the scope of the existing exemptions. More-

over, under the broad principles of judicial reviewability

of administrative actions which exist in New Jersey (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 capri-

cious,” his actions could be set aside on appeal to the

courts. However, in the procedural posture in which ap-

pellants have placed this matter before the Court, it

must be assumed, as has been found by the New Jersey

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 dis-

posal within this State of all wastes generated outside of

the State be prohibited.” N.J.S.A. 13:11-9.

43

CONCLUSION

It is respectfully submitted that for the foregoing

reasons the judgment of the Supreme Court of New

Jersey should be affirmed.

Respectfully submitted,

Wuuum F. Hyzianp,

Attorney General of New Jersey,

Attorney for Appellees, State of

New Jersey, Department of En-

vironmental Protection of _ the

State of New Jersey and Commis-

stoner cf the Department of En-

vironmental Protection of the

State of New Jersey.

SrerpHen SKMLMAN,

Assistant Attorney General

Of Counsel and on the Brief.

Marx L. Frmsr,

Deputy Attorney General,

On the Brief.