Amicus Brief — Philadelphia v. New Jersey

MOTION FILED

MAY 28 1976

IN THE

Supreme Court of the United States

OcToBER TERM, 1975

No. 75-1150

City OF PHILADELPHIA, ET AL.

v.

NEW JERSEY, ET AL.

On Appeal from the Supreme Court of the

State of New Jersey

MOTION AND BRIEF FOR AMICUS CURIAE,

AMERICAN SOCIETY OF CIVIL ENGINEERS

Louis L. Meter, JR.

Counsel for Amicus Curiae

1625 Eye Street, N.W.

Washington, D. C. 20006

May 28, 1976

Pares or Braow S. Apames Parmrrina, Inc., Wasuinetox, D. C.

14135.8.76

IN THE

Supreme Court of the United States

OcrToBER TERM, 1975

No. 75-1150

Crry oF PHILADELPHIA, ET AL.

v.

NEw JERSEY, ET AL.

On Appeal from the Supreme Court of the

State of New Jersey.

MOTION OF THE AMERICAN SOCIETY OF CIVIL

ENGINEERS FOR LEAVE TO FILE BRIEF

AS AMICUS CURIAE

The American Society of Civil Engineers (herein-

after ‘‘ ASCE’’) respectfully moves, pursuant to Rule

42.3 of this Court, for leave to file the accompanying

Brief as Amicus Curiae on the merits of this case.

Although the attorneys for Petitioners have consented

to the amicus filing of a brief amicus curiae, the amicus

has been advised that the Respondent will not grant its

consent.

li

The American Society of Civil Engineers (ASCE)

is a non-profit corporation registered in the State of

New York. Its membership consists of more than

72,000 individual civil engineers and other qualified

individuals. The objective of the Society, as stated in

its Constitution, is the advancement of the science and

profession of engineering to enhance the welfare of

mankind.

An important concern of the Society is to promote

sound engineering thought and practice in the solution

of problems of environmental sanitation including the

proper disposal of or recycling of solid wastes, the

control of pollution, and the social and environmental

impact of solutions to these engineering problems.

ASCE has a responsibility to represent its members

in important public policy matters significantly affect-

ing the foregoing interests. The question before this

court, that of the constitutionality of excluding out-of-

state solid waste from deposit within landfills of New

Jersey, is of particular concern to ASCE. This is be-

cause the Society believes that the Court’s decision

may have an impact on environmental and pollution

issues beyond this particular case and, more signifi-

cantly, may affect others than the parties to the case.

Accordingly, the ASCE focus of interest is upon these

aspects of the questions involved.

It should be noted, also, that the ASCE perspective

on the issues is different from that of the parties to

the case. The viewpoint is that of the practicing civil

engineer. The engineer believes that the complex eco-

system which provides mans’ life sustaining environ-

ment, and the pollution problems associated therewith,

know no political boundaries. These problems, there-

tii

fore, are ill suited for unilateral solutions. In the

words of Justice Cardoza, ‘‘the peoples of the several

states must sink or swim together.’’

The Society believes that the import ban imposed by

the New Jersey Waste Control Act is unsound from an

engineering and professional point of view, and, more-

over, is unconstitutional.

The situation, unfortunately, is not helped by the

provisions of the Pennsylvania Solid Waste Manage-

ment Act regarding the review authority of counties

over the solid waste management plans of municipali-

ties within the state. The primary emphasis in the

Pennsylvania law is on a state-wide plan. The law,

further, contains retaliatory authority directed at the

states which do not accept solid waste from Pennsyl-

vania. (This latter proviso was enacted in 1974 in re-

sponse to the New Jersey Act.) Further, the fact that

the population density of New Jersey is 953.1 persons

per square mile compared to 262.3 per square mile in

Pennsylvania (381.3 persons per square mile in New

York) does not make it easy to deal with the people

aspect of the problem. (1970 census data, 1973 World

Almanac, 144) But the foregoing has no bearing on

the constitutionality of the New Jersey statute, even

though it does have much to do with New Jersey’s un-

derstandable concern in seeking to preserve its scarce

landfill areas.

What is important, however, is that the concept of

areawide solutions to environmental problems has been

embraced by the federal government in the air pollu-

tion/water pollution control programs and in the solid

waste management field. In the long run, this public

policy should work to provide optimum solutions for

the good of all states and all citizens.

iv

It is axiomatic that environmentally sound solutions

to the solid waste management problem must be based

on engineering considerations and their assessment by

skilled professionals. The problem is sufficiently com-

plex from the engineering standpoint alone, without

the imposition of artificial, environmentally unsound

political constraints. The nation cannot afford this

kind of parochialism with its resulting inefficiency. It

would reverse the progress made so far in the manage-

ment of solid wastes and could have far reaching im-

plications, as well, in matters relating to energy issues.

While the immediate problem is Philadelphia’s, and

Pennsylvania’s, the precedent established would spread

rapidly across the country. Regional solid waste man-

agement systems are already operating and many more

are in various stages of planning and development

throughout the nation. These regional systems and

plans, in being and projected, are environmentally

sound and cost-effective. Such regional solutions would

be jeopardized or rendered useless if the New Jersey

precedent is allowed to become widespread. Already

six other states—Maine, Massachusetts, New Hamp-

shire, Pennsylvania, Rhode Island and Vermont pro-

hibit, to varying degrees, the disposal of out-of-state

solid waste. Delaware, Illinois and Louisiana allow

disposal of solid waste from out-of-state, but with cer-

tain limitations. It would appear that a Federal pol-

icy of primary state responsibility over the environ-

ment, coupled with provisions for areawide planning

to make such responsibility meaningful in each state,

is in jeopardy.

Because of the importance of the issues involved,

ASCE desires to present to this Court, for its assist-

v

ance, the Society’s views in regard to the significant

questions involved in this proceeding.

WuenrerorE, the American Society of Civil Engi-

neers respectfully requests this Court to grant this

motion and permit the Society to file the Brief Amicus

Curiae attached hereto and submitted herewith.

Respectfully submitted,

Lovts L. Meter, JR.

Counsel for Amicus Curiae

1625 Eye Street, N.W.

Washington, D.C. 20006

May 28, 1976

Page

ae Se te cee ode seutethoons i

BN SiieiiS ens age dhs Ceked us tatbvcesevcesc comnedese 1

PE TROD 5 nn icc dhe pew ccébesctcece 1

I SE CD SID kk tise decb.se cecavcennesiace 1

Interest of the Amicus Curiae .................4.-. 2

Summary of the Argument .................-+-+. 4

DD 5 dais oes Hinsate aber’ Hos che 0seecenecess 4)

I. The Commerce Clause Issue: The management of

solid waste is interstate commerce within the

meaning of the Commerce Clause .............. 5

II. The New Jersey Waste Control Act would effect

an improper discrimination against interstate

commerce and is hence unconstitutional ........ 7

Ili. The Federal Preemptive Issue ................ 13

OS. a CS chad ve ek coanwavis dene eectéscweed 18

TABLE OF CITATIONS

CasEs:

American Can Company v. Oregon Liquor Control

Commission, No. 75567 (Cir. Ct. Ore. September

1, 1972), 2ELR 20642, 20644, 20645 ............. 10, 13

Baldwin v. G.A.F. Sielig, 294 U.S. 511, 522, 523 (1934) 7

Brennan v. Metropolitan Trash, Inc., 513 F.2nd 1324,

EE GHEE. sRA AGEs oatih g elie bie ohne se¥es cant 6

Cooley v. d of Wardens, 53 U.S. (12 How.) 299,

Dy EEE ockdkehe i gSbbbs bees bodehdedveweceser 13

Florida Lime and Avocado Growers, Inc. v. Paul, 373

oF Ss 3 F errr rr 13

Foster-Fountain Packing Co. v. Hayael, 278 U.S. 1, 10

SRE i deh « bolwh <4 A thYSN ec Fea en seeds ccksbecce 6

ii Index Continued

Guy v. Baltimore, 100 U.S. 434, 443 (1879) .......... 7,9

Hackensack Meadowlands Commission v. Municipal

Authority, (New Jersey Supreme Court) 8 ERG

1447, 1450, 1456 (1975) ...........00- Nhe hdaee 9,11

Hackensack Meadow. D. Commission v. Municipal San.

L.A., (Superior Court of New Jersey, ncery

Division) 127 N.J. Super. 160 (Ch. 1974) 316

A.2nd 711, 716, 718, 719 (1974) ............. 5, 7, 9,17

| Hines v. Davidowitz, 312 U.S. 52, 67 (1941) ......... 13

Huron Portland Cement Co. v. City of Detroit, et al.,

362 U.S. 440, 442, 443 (1959) ......... ccc eens 10, 11

International Textbook Co. v. Pigg, 217 U.S. 91,112... 7

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware,

aS 8 SF, Rrra > 16

Pennsylvania v. West Virginia, 262 U.S. 553, 598, 43

S.Ct. 658, 665, 67 L.Ed. 1117, 1133 (1923) ........ 9

Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970) .. 10

United States v. Bishop Processing Co., 287 F.Suppl. |

624, 631, 632 (D.C. Md. 1968) ...........ccceees

United States v. National Society of Professional En-

gineers, 389 F.Suppl. 1193, 1199 (1974) ......... 6

United States v. Pennsylvania Refuse Removal Asso-

ciation, 242 F.Suppl. 794, 799 (E.D. Pa. 1965),

aff’d, 357 F.2d 806, 809 (3rd Cire.), cert. denied,

384 U.S. 961, 16 L.Ed.2nd 674 (1966) ........... 5, 6

West v. Kansas Natural Gas Company, 221 U.S. 229,

255 (1910), 31 S.Ct. 564, 571, 55 L.Ed. 716, 726

CREED ccvccedisévedevasesesd<e¥snendeseniecons 7, 8,9

CONSTITUTION AND STATUTES:

Clean Air Act, 42 U.S.C. 1857 0-4 ......... ccc cece: 16

Environmental Quality Improvement Act of 1970, 42

Wen Ge, GED CUP cee dedewsinndccsdubsshins 13, 15

Federal Solid Waste Disposal Act of 1965, 42 U.S.C.

Sec. 3251 (a) (6) Sec. 3254, 3251-59. . .11, 12, 13, 14, 15

Federal Water Pollution Control Act, 33 U.S.C. See.

1151 (b) 1154, 1314-15, 1317 (1970) ........ 13, 15, 16

Marine Protection, Research and Sanctuaries Act of

1972, 33 U.S.C.A. Sees. 1817, 1411 .............. 16

New Jersey Waste Control Act P.L. 1973 (Chapter 39,

approved January 2, 1974 (N.J.S.A. 13: 1-I-9, 10) 1,4

Index Continued iii

Page

Pennsylvania Solid Waste Management Act 1968, July

31, P.L. 788, No. 241 (as amended by Common-

wealth of Pennsylvania, Act 337 of 1974) 35 Pur-

dons Statutes GU01 et seq. ....... cece cece eeeees

Title 42 United States Code, 42 U.S.C. 4331 ...... ose 1

United States Constitution Commerce Clause, Article

I, section 8, clause 3 ..........ceeeeeeeeeces see 2,5

United States Constitution, Supremacy Clause, Article

WE, Mamas B nnn cccccvcccccccevecsccccscccccccs 13

MISCELLANEOUS:

Council on Environmental Quality, Sixth Annual Re-

port, pg. 94, December 1975 ..........--.eeeeeee 16

Legislative History of the Solid Waste Disposal Act

of 1965, P.L. 89-272, 1965 U.S. Code and Adm.

News, p. 3608, 3615 ........ccceccccecceeccecs 14

World Almanac and Book of Facts (1973) Newspaper

Enterprise Association, New York City, New York iii

IN THE

Supreme Court of the United States

OctToBER TERM, 1975

No. 75-1150

City oF PHILADELPHIA, ET AL.

v.

NEw JERSEY, ET AL.

On Appeal from the Supreme Court of the

State of New Jersey

BRIEF FOR AMICUS CURIAE,

AMERICAN SOCIETY OF CIVIL ENGINEERS

PRELIMINARY STATEMENT

The American Society of Civil Engineers (herein-

after ‘‘ASCE’’) respectfully requests this Court to

permit the filing of the Brief Amicus Curiae attached

hereto and submitted herewith.

STATEMENT OF THE CASE

New Jersey’s Waste Control Act prohibits the dis-

posal within the state of solid waste originating or col-

lected outside the state’s territorial borders without a

like prohibition against New Jersey solid waste. Two

state trial courts have held the prohibition unconstitu-

2

tional, in violation of the Commerce Clause, Article I,

paragraph 8, clause 3, of the United States Constitu-

tion, in that it is an unreasonable discrimination

against interstate commerce to the extent it would pro-

hibit deposit in sanitary landfills within New Jersey of

wastes originating outside of the state, but permit such

deposit for wastes originating within the state. The

New Jersey Supreme Court held that the Act does not

violate the Commerce Clause and that the ban is a

reasonable means to accomplish a legitimate goal of

preserving New Jersey land. The Court further held

that there has been no discrimination, at least in the

economic sense. The City of Philadelphia seeks review

of this final judgment, dealing solely with the federal

constitutional question. Justice Breunan has ordered

the judgment of the Supreme Court of New Jersey

stayed, pending the timely filing of a notice of appeal,

the timely docketing of the appeal, and action by the

Supreme Court on the jurisdictional statement. It is

to be noted that, by letter dated December 22, 1975 to

Associate Justice William J. Brennan, Jr. the Ameri-

ean Society of Civil Engineers supported the issuance

of this stay. In April the Supreme Court noted juris-

diction.

INTEREST OF AMICUS CURIAE

As set forth in the motion for leave to file this brief,

and as restated herein, the American Society of Civil

Engineers and its members have a significant concern

for insuring that the Commerce Clause guarantee

against unreasonable discrimination against interstate

commerce shall be upheld and that expressed federal

policy encouraging cooperative solutions, to environ-

mental problems, at the state and local level by states’

exercise of authority sha)! not be frustrated.

3

The American Society of Civil Engineers (ASCE)

is a non-profit corporation registered in the State of

New York. Its membership consists of more than 72,-

000 individual civil engineers and other qualified indi-

viduals. The objective of the Society, as stated in its

Constitution, is the advancement of the science and pro-

fession of engineering to enhance the welfare of man-

kind.

An important concern of the Society is to promote

sound engineering thought and practice in the solution

of problems of environmental sanitation, including the

proper disposal or recycling of solid wastes, the control

of pollution, and the social and environmental impact

of solutions to these engineering problems.

ASCE has a responsibility to represent its members

in important public policy matters significantly a ffect-

ing the foregoing interests. The question before this

Court of the constitutionality of excluding out-of-state

solid waste from deposit within landfills in New Jersey

is of particular concern to ASCE because the Society

believes that the Court’s decision may have an impact

on environmental and pollution issues beyond this par-

ticular case, may affect others than the parties to the

case, and may have implications with reference to

energy issues as well. The ASCE focus of interest is

upon these aspects of the questions involved.

It should be noted, also, that the perspective on the

issues is different from that of the parties to the case.

The viewpoint is that of the practicing civil engineer.

It is the engineering view that mans’ life-sustaining

environment, and pollution problems associated there-

with, know no political boundaries. These problems,

therefore, are ill adapted to unilateral solutions. In

4

the words of Justice Cardoza, ‘‘the peoples of the sev-

eral states must sink or swim together.”’

Hence, the decision in this case will affect the values

ASCE seeks to promote on behalf of its membership.

Accordingly, the Society desires to present to this

Court, for its assistance, ASCE views as to the issues

involved in this proceeding.

SUMMARY OF THE ARGUMENT

I. It is well established that solid waste is a legitimate

subject of trade or commerce and is, therefore, within

the purview of the Commerce Clause. Solid waste man-

agement is an essential element in the production of

goods that flow in interstate commerce. Interstate com-

merce includes more than transportation, it embraces

all the component parts of commercial intercourse

among states. Solid waste management is a field of

engineering. Further, engineering is a profession,

which in the broadest sense is a driving force of seminal

character which forges that very foundation from

which our commercial trade emanates.

II. State laws based on the exercise of the police

power, whether for the purpose of conserving natural

resources or of protecting the environment, may not

stand if they unreasonably discriminate against inter-

state commerce. In this case, the New Jersey Waste

Control Act is unconstitutional as representing such

discrimination, to the extent that it would prohibit dis-

posal of solid waste within New Jersey of solid waste

originating outside of the state but permit such dis-

posal of wastes originating within New Jersey.

III. Federal policy favors the states’ exercise of

their own authority over the environment, with provi-

sions for interstate cooperation. In this case, a state

statute would operate to interfere with the possibility of

cooperative efforts of other states who support a mini-

mal Federal role. The effect would be, in the long term,

to thwart the Federal policy of placing primary reliance

on the states. Further the precedent set could have im-

plications as to energy issues. Invalidation of the New

Jersey legislation is required because the state’s action

is inconsistent with public policy as established by the

Congress and is destructive of the interests of other

states who abide by national public policy. These

states recognize that tne solid waste problem is a na-

tional environmental problem, having broad implica-

tions and that the possibility of interstate and regional

solutions to the component parts of the problem should

not be precluded.

ARGUMENT

I. The Commerce Clause’ Issue: The management of solid

waste is interstate commerce within the meaning of the

Commerce Clause.

It is well established that solid waste is a legitimate

subject of interstate commerce.

-

In Hackensack Meadow. D. Commission v. Municipal

San. L.A., 316 A.2d 711, 716, the trial judge noted that:

Waste ‘‘may be utilized for construction, landfill, re-

cycling of paper, bottles and metals and production of

electricity.’’ Further, in United States v. Pennsylvania

Refuse Removal Association, 242 F. Suppl. 794, 799

(E.D.Pa. 1965), 357 F.2d 806, 809 (3rd Cir.), cert.

denied, 384 U.S. 961, aff’d, 16 L.Ed.2d 674 (1966),

2 U.S. Constitution, Article 1, See. 8, Cl. 3 ‘‘The Congress shall

have power . . . to regulate Commerce with Foreign Nations, and

among the several States, and with the Indian Tribes.’’

6

the service of transporting and disposing of solid waste

was held to constitute interstate commerce. See also

United States v. Bishop Processing Co., 287 F.Suppl.

624, 631, 632 (D.C. Md. 1968). In addition, solid waste

disposal has been held to be an essential part of the pro-

duction of goods for commerce. See Brennan v. Metro-

politan Trash, Inc., 513 F.2d 1324, 1327 (1975), and

cases cited therein.

The Supreme Court has pointed out that ‘‘interstate

commerce includes more than transportation; it em-

braces all the component parts of commercial inter-

course among states.”’ Foster-Fountam P.wcking Co. v.

Haydel, 278 U.S. 1, 10 (1928). In this case, the Court

held that a state statute that operates directly to bur-

den any of the essential elemenis of interstate commerce

is invalid.

In United States v. Pennsylvania Refuse Removal

Association, 242 F.Suppl. 794, 799 (1965), the Court em-

phasized that the real subject of ‘‘trade or commerce”’

was not the worthless garbage that was being trans-

ported but, rather, the valuable services.

In a functional sense, as a field of civil engineering,

solid waste management must also be considered as

interstate commerce. In this regard, the Court in

United States v. National Society of Professional Eng-

ineers, 389 F. Suppl. 1198, 1199 (1974), characterized

engineering as ‘‘an industry often organized on a local,

regional, national or even international seale, control-

ling, guiding and shaping the pace and direction of the

vast array of interstate transactions needed to carry

out much of the nation’s construction and manufacture.

The record is impressive in demonstrating that the im-

print of professional engineering upon interstate com-

7

merce is clear and unmistakable. It is a driving force

of seminal character which continues to forge the very

foundation from which our commercial trade eman-

ates.”’

41. The New Jersey Waste Control Act would effect an im-

proper discrimination against interstate commerce and is

hence unconstitutional.

“The power of the national government over com-

merce with foreign nations and among the several states

is broad and comprehensive. It reaches the interior

of every State of the Union, so far as it may be neces-

sary to protect the products of other States and coun-

tries from discrimination by reason of their foreign

origin.’’ Guy v. Baltimore, 100 U.S. 434, 443 (1879).

In Baldwin v. G.A.F. Seilig, 294 U.S. 511, 522, the

Court says, ‘‘It is the established doctrine of this court

that a state may not in any form or under any guise,

directly burden the prosecution of interstate business.”’

International Textbook Co. v. Pigg, 217 U.S. 91, 112.

The Court goes on to say, ‘‘It (the Constitution) was

framed upon the theory that the peoples of the several

states must sink or swim together, and that in the long

run prosperity and salvation are in union and not in

division.’’

In Hackensack Meadow. D. Com’n v. Municipal

San. L.A., 316 A.2d 711, 719 the Court points to West

v. Kansas Natural Gas Co., 221 U.S. 229, 255 (1910),

31 S.Ct. 564, 571, 55 L.Ed. 716, 726 (1911), where

‘Oklahoma enacted a law which prevented a pipeline

company from transporting natural gas outside the

state.’’ The purpose of the law was to conserve natural

gas in the Oklahoma fields for consumption in the

8

state. In declaring the statute violative of the Com-

merce Clause, the U.S. Supreme Court commented,

‘*.. The Statute of Oklahoma recognizes it to be

a subject of intrastate commerce, but seeks to pro-

hibit it from being the subject of interstate com-

merce, and this is the purpose of its conservation.

In other words, the purpose of its conservation is

in a sense commercial—the business welfare of the

State, as coal might be, or timber. Both of those

products may be limited in amount, and the same

consideration of the public welfare which would

confine gas to the use of the inhabitants of a State

would confine them to the inhabitants of the State.

If the States have such power, a singular situation

might result. Pennsylvania might keep its coal,

the Northwest its timber, the mining States their

minerals. And why may not the products of the

field be brought within the principle? Thus en-

larged, or without that enlargement, its influence

on interstate commerce need not be pointed out.

To what consequence does such power tend? If

one State has it, all States have it; embargo may

be retailiated by embargo, and commerce will -be

halted at state lines. And yet we have said that

‘in matters of foreign and interstate commerce

there are not state lines.’ In such commerce, in-

stead of the States, a new power appears and a new

welfare—a welfare which transcends that of any

State. But rather let us say it is constituted of the

welfare of all of the States and that each State is

made the greater by a division of its resources,

natural and created, with every other State, and

those of every other State with it. This was the

purpose, as it is the result, of the interstate com-

merce clause of the Constitution of the United

States. If there is to be a turning backward, it

must be done by the authority of another instru-

mentality than a court.”’ (31 S.Ct. 564, 571)

9

Importantiy, implicit in Guy v. Baltimore and West

v. Kansas Natural Gas Co. is the fact that the origin of

the subject of interstate commerce is pertinent to the

question of conformance with the Commerce Clause,

not the residence of the owner or carrier.

The New Jersey Supreme Court therefore erred in

holding that there has been no discrimination, at least

in the economic sense, stating, ‘‘Nor is there any real

or significant discrimination in favor of local collectors.

Refuse amassed by them outside the State may not be

brought into New Jersey. Conversely, residents of

other states are free to collect and dump within the

state.’”’ (Hackensack Meadowlands Commission v.

Municipal Authority, 8 ERG 1447, 1456)

As cited in Hackensack Meadow. D. Com’n. v. Muni-

cipal San.LA., 316 A.2d 711, 718, 719, ‘‘In Penn-

sylvania v. West Virginia, 262 U.S. 553, 598 43 S.Ct.

658, 665, 67 L.Ed. 1117, 1133 (1923), a West Virginia

statute restricted the exportation of natural gas to

ensure a sufficient supply for its own citizens. Although

the Supreme Court recognized that ‘the gas is a natural

product of the state and has become a necessity therein,

that the supply is waning and no longer sufficient to

satisfy local needs and be used abroad, and that the

act is therefore a legitimate measure of conservation

in the interest of people of the state,’ the statute had

to fall because it interfered with interstate commerce.’’

**Because the national ‘common market’ which is

intended by the Commerce Clause, does not absolutely

prohibit state legislation in the area of commerce, a

state may regulate in a constitutionally accepted man-

ner. A state may not, however, give preferential

treatment to in-state sources at the expense of out-of-

10

state sources.’”? American Can Co. v. Oregon Liquor

Control Commission, No. 75567 (Cir. Ct. Ore. Sept. 1,

1972) 2 ELR 20642, 20644.

Since importation of out-of-state solid waste is flatly

prohibited in New Jersey, amicus believes that the New

Jersey Supreme Court erred in holding the New Jersey

statute non-discriminatory.

—Balancing Test .

Thé New Jersey Supreme Court applied a balancing

test to judge whether the burden imposed on interstate

commerce by the state statute exceeds or outweighs the

benefit accruing to the state. In Pike v. Bruce Church

Inc., 397 U.S. 137, 142 (1970), the Court had this to say

with reference to such a test.

‘‘ Although the criteria for determining the valid-

ity of State statutes affecting interstate com-

merce have been variously stated, the general rule

that emerges can be phrased as follows: where

the statute regulates evenhandedly to effectuate a

legitimate local public interest, and its effects on

interstate commerce are only incidental, it will be

upheld unless the burden imposed on such com-

merce is clearly excessive in relation to the puta-

tive local benefits. Huron Portland Cement Co.

v. Detroit, 362 U.S. 440, 443, (1959). If a legiti-

mate local purpose is found, then the question

becomes one of degree. And the extent of the

burden that will be tolerated will, of course, depend

on the nature of the local interest involved, and on

whether it could be promoted as well with a lesser

impact on interstate activities.”’

Of course the New Jersey statute patently discrimi-

nates against out-of-state solid waste and accordingly,

based upon the guidelines outlined in the foregoing

paragraph relating to evenhanded regulations, amicus

11

believes the balancing test to be an improper one to use

in this case.

By way of further discussion of this point, it should

be noted that the Supreme Court has recognized that

the protection of public health through the preserva-

tion of the environment is a valid and, indeed, primary

objective of the police power. Huron Portland Cement

Co. Vv. Detroit, 362 U.S. 440, 442 (1959). Accordingly,

it would seem that there is no question that extending

the lifespan of existing Jandfills and thereby preserv-

ing further acreage from use as disposal sites is like-

wise a legitimate and valid exercise of the police power

of the State subject to the general rule stated in

Huron Portland Cement Co. v. Detroit.

With appropriate evenhandedly applied standards

for treatment and disposal of solid waste, New Jersey

landfills could last much longer. Congress, in effect,

has recognized the importance of evenhandedness by

providing that the EPA administrator shall encourage

the enactment of improved and, so far as practicable,

uniform state and local laws governing solid waste

disposal. (42 U.S.C. See. 3254) The Court has

addressed this issue saying ‘‘... a state may not impose

a burden which materially affects interstate commerce

in any area where uniformity of regulation is neces-

sary.’’ (Huron Portland Cement Co. v. City of Detroit

et al., 362 U.S. 440, 443 (1959)). In any case, with

reference to the question of landfill life, one estimate

is that a statewide probitition on solid waste originat-

ing elsewhere would only lengthen the statewide land-

fill life by approximately 8%. (Hackensack Meadow-

lands Commission v. Municipal Authority, 8 ERG 1447,

1450). Rather than imposing a ban on solid waste

originating from out of state, New Jersey should focus

12

more sharply on the problem of the entire intra-state

and inter-state solid waste load on the Jersey landfill

sites and the implications thereof. It appears to be a

more critical situation for the state of New Jersey

than for its neighbors because of the much higher

population density of New Jersey as compared with

the states of Pennsylvania and New York. By looking

at the solid waste problem in its totality New Jersey

could improve on its own situation substantially, in an

evenhanded, non-discriminatory manner as to any bur-

den on interstate commerce. At the same time the door

would be kept open to cooperative areawide solutions,

as encouraged in the Federal Solid Waste Disposal

Act of 1965 (42 U.S.C. See. 3254). Barring this

approach the states in the region might soon reach

the position where there would be no feasible alter-

uative except a Congressionally legislated Federal solu-

tion. Development of orderly interstate urban solid

waste management programs should be fostered, rather

than narrow, parochial attitudes. A state of relatively

high population density (New Jersey) and q state of

low density (Pennsylvania or New York) should have

equal potential in the long term for the solution of solid

waste problems in an efficient and effective way. This

means that possibilities for regional and interstate

solutions should not be ruled out.

So, even should the balahcing test be deemed appro-

priate, any benefits which might accrue to new Jersey

would be short term at best and more illusory than

real, On the other side of the seale, the precedent

effect on interstate commerce, as related to the entire

environmental area as well as to energy matters, could

be quite profound. The seales accordingly would not

seem to tip in favor of upholding the New Jersey legis-

lation.

13

Ill. The Federal Preemptive Issue: *

It is well established that a state may, in the exercise

of its police power, enact legislation, even though it

may effect interstate commerce, provided that the Fed-

eral Government has not preempted the field. Cooley

v. Board of Wardens (53 U.S. (12 How.) 299, 319

(1851) ).

Preemption occurs when a state statute obstructs the

‘‘accomplishments and execution of the full purposes

and objectives of an Act of Congress.’’ Hines v.

Dawidowitz, 312 U.S. 52, 67 (1941). Congressional de-

sign to occupy the field is not necessarily required.

Preemption also occurs in the case of an actual conflict

between federal and state statutes where both cannot

stand and state regulation need be nullified. Florida

Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132,

141 (1963).

Expressed Federal Policy favors ‘‘the state’s exer-

cise of its own authority over the environment.”’

(American Can Company v. Oregon Liquor Control

Commission, 2 LR 20642, 20645) This Federal Policy

can be detected in the Environmental Quality Im-

provement Act of 1970 (42 U.S.C. See. 4371), the

Federal Water Pollution Control Act (33 U.S.C. See.

1151(b) (1970) and in the Federal solid Waste Dis-

posal Act of 1965 (42 U.S.C. See. 3251 (1970). The

policy, however, cannot be construed to mean uni-

*U.S. Constitution Article VI, Clause 2 ‘‘This Constitution and

the Laws of the United States which shall be made in Pursuance

thereof; and all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme Law of the

Land ; and the Judges in every State shal! be bound thereby, any-

thing in the Constitution or Laws of any State to the Contrary

notwithstanding.

14

lateral state action by each state, in isolation from

neighboring states, as can be seen from a further read-

ing of the statutes.

More specifically the legislative history of the Solid

Waste Disposal Act of 1965, P.L. 89-272 states that

‘‘Federal financial assistance is needed to encourage

and help States and interstate agencies to undertake

surveys of solid waste disposal practices and to develop

solid waste disposal plans on a statewide or interstate

basis. It is evident that statutory provisions establish-

ing a national program to meet and accomplish these

objectives for improved solid waste handling must in-

clude the following basic elements: ... provision must

be made for interstate and interlocal cooperation in the

establishment and conduct of solid waste disposal pro-

grams.’’ (1965 U.S. Code Cong. and Adm. News p.

3608, 3615).

The Solid Waste Disposal Act of 1965 recognized

the problem of solid waste management as a national

problem and extended the federal reach into an area of

formerly exclusively local control. (42 U.S.C. See.

3251-59 1970). The Act prescribes that ‘‘while the

collection and disposal of solid wastes should continue

to be primarily the function of State, regional and

local agencies, the problems of waste disposal . . . have

become a matter national in scope and in concern and

necessitate Federal action through financial and techni-

cal assistance and leadership . . . to provide for proper

and economical solid-waste disposal practices.”” (42

U.S.C, 3251) ... ‘In addition, the Administrator

shall encourage cooperative activities by the States and

local governments in connection with solid-waste dis-

posal programs; (and) encourage, where practicable,

15

interstate, interlocal and regional solid waste disposal

programs. (42 U.S.C. 3254).

Likewise, in closely related legislation, the Federal

Water Pollution Control Act 33 U.S.C. 1154, it is

stated ‘‘that the Administrator shall encourage co-

operative activities by the States for the prevention

and control of water pollution; encourage the enact-

ment of improved and, so far as practicable, uniform

State laws relating to the prevention and control of

water pollution; and encourage compacts between

States for the prevention and control of water pollu-

tion.’”’ (33 U.S.C. 1154).

Further the Environmental Quality Improvement

Act of 1970 states: ‘‘(1) The Congress declares that

there is a national policy for the environment which

provides for the enhancement of environmental quality.

This policy is evidenced by statutes heretofore enacted

relating to the prevention, abatement, and control of

environmental pollution, water and land resources,

transportation and economic and regional development.

2) The primary responsibility for implementing

i om rests with State and local governments.

(3) The Federal Government a _ sup-

rts implementation of this policy ugh appro-

arn regional organizations established under exist-

ing law.’’ (42 U.S.C. 4371(b)).

As a practical matter cooperation is particularly

needed in the field of solid waste management during

a period when federal limits on air and water pollution

serve to add to the waste burden of land. At this time,

for example, Philadephia is being turned away from

disposal of solid waste at sea, disposal upon naturally

16

toxic soil formations in Pennsylvania because of obdu-

rate local opposition and Pennsylvania law, and in-

cineration because of cost and air pollution iaws.

Federal Water Pollution Control Act as amended in

1972 (33 U.S.C.A. Sees. 1314-15, 1317, Suppl.) ; 1973

Marine Protection, Research, and Sanctuaries Act of

1972 (33 U.S.C.A. Sec. 1411 Suppl.); Clean Air

Act (42 U.S.C.A. See. 1857 e-4, (1970), and Penn-

sylvania Solid Waste Management Act 1968 July 31

P.L. 788, No. 241, as amended by Commonwealth of

Pennsylvania Act 337 of 1974, 35 Purdons Statutes

6001 et seq.

The cooperative approach appears to be in line with

the Court’s own view, ‘‘that the proper approach is to

reconcile the operation of both statutory schemes with

one another rather than holding one completely oust-

ed.’”’ (Merrill, Lynch, Pierce, Fenner and Smith, Inc.,

v. Ware, 414 U.S. 117, 127 (1973). On this basis the

New Jersey Act is hardly consistent with either Fed-

eral policy or that of this Court, in its flat prohibition

against the importation of solid waste and its insensi-

tivity to the interrelationship between statutes adopted

by the separate, yet coordinate, Federal and state sov-

ereignties.

In connection with the foregoing problems relating

to traditional approaches to solid waste disposal it

should be noted that the prospects for long-run pro-

gress for recycling and recovery are promising in view

of the basic economic pressures associated with the

costs of virgin materials, energy and land. Further

improved recovery technology will continue to provide

an attractive alternative to traditional disposal

methods. (The Sixth Annual Report of the Council

17

on Environment Quality, December 1975, U.S. Govern-

ment Printing Office p. 94) In Hackensack Meadow. D.

Commission Vv. Municipal San. L.A., 316 A.2d 711, 716,

the court observes that ‘‘refuse may be utilized for

construction, landfill, recycling of paper, bottles and

metal, and production of electricity. In passing, it

might be noted that some successful incineration sys-+!) _

tems which create waste heat for power generation

exist in Germany, the Netherlands, France and Swit-

zerland.”’

Congress has declared that ‘‘it is the continuing

policy of the Federal Government, in cooperation with

State and local governments, .. . to use all practicable

means and measures... to create and maintain condi-

tions under which man and nature can exist in produc-

tive harmony, and fulfill the social, economic and other

requirements of present and future generations of

Americans ... (1)t is the continuing responsibility of

the Federal Government to use all practicable means,

consistent with other essential considerations of na-

tional policy, to improve and coordinate Federal plans,

functions, programs, and resources to the end that the

Nation may—...

—obtain the widest range of beneficial uses of the

environment without degradation, risk to health or

safety, or other undesirable and unintended conse-

quences,

—enhance the quality of renewable resources and

approach the maximum attainable recycling of deplet-

able resources.’’ (42 U.S.C. 4331)

Application of the doctrine of preemption in this

case would work to make possible the promoting of co-

operation as between states and the federal government

18

and the doctrine, it is suggested, should play an impor-

tant role in shaping the decision of this Court.

CONCLUSION

For the foregoing reasons, this Court should rule that

the import ban imposed by the New é jersey Waste Con- in

..+- trol Act is unconstitutional <-> beets >

Respectfully submitted,

Louis L. Meter, Jr.

Counsel for Amicus Curiae

1625 Eye Street, N.W.

Washington, D.C. 20006