Motion to Dismiss — Philadelphia v. New Jersey

HAEL RODAK, JR., CLERK

Supreme Court of the United States

Ocrosen Team, 1977

No, 77-404

CITY OF PHILADELPHIA, CITY OF GLEN COVE, LANDFILL

AND DEVELOPMENT COMPANY, MAC SANITARY LAND-

FILL, INC, KINSLEY'S LANDFILL, INC,, and DeLORENZO.-

INTERSTATE WASTE REMOVAL CO., INC, (now INTERSTATE

WASTE REMOVAL CO., INC,),

Appellants,

Ds.

STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMEN.-

TAL PROTECTION OF THE STATE OF NEW JERSEY and

RICHARD J. SULLIVAN, Commissioner of the Department of

Environmental Protection of the State of New Jersey,

Appellees.

On ApreaL From THE Surneme Count or New Jensrey

MOTION TO DISMISS AND BRIEF

IN SUPPORT THEREOF

— -—— — — - ss

WILLIAM F. HYLAND,

Attorney General of New Jersey

Attorney for Appellees, State of New

Jersey, Department of Environmental

Protection and Commissioner of the

Department of Environmental

Protection

State House Annex

Trenton, New Jersey 08625

STerHen SKILLMAN

Assistant Attorney General

Of Counsel and On the Brief

N.J. Appellate Printing Ceo. ine. Se. Pleinfield, New Jersey (20!) 753.0200

TABLE OF CONTENTS

DINED np ccbedcvececcccnevecsscceseedee 1

Preliminary Statement ...........006 66600 c cee 2

CE cbonbdrcccesccacbhedesceces soo 3

ARGUMENT:

A. The Commerce Clause Of The United States

Constitution does not prohibit a state from

taking action to prevent the disposal within

its boundaries of substances originating out

of state which are harmful to public health

and the environment ...............000055 9

B. The Federal Resource Conservation and Re-

covery Act of 1976 Does Not Pre-Empt State

Legislation Prohibiting The Disposal Within

Its Boundaries Of Waste Originating Out Of

SE MOVIE SS abd de ecccbeceereseseus esos 22

tte adeno scdhesenisetedeceess 31

Cases Crrep:

Askew v. American Waterways Operators, Inc.

Ce ED «Sn gb Guid cb ede ccdcceces 22

Clason v. State of Indiana,

906 U.S. 490 (1000) .........0ee. 14, 17, 19

Cloverleaf Butter Co. v. Patterson,

GIS U.S. 148 (1942) oo... eee eee cece cece 17

Colorado Anti-Discrimination Commission v.

Continental Air Lines,

PT os ce cece 60006e6ee 25, 28

TABLE OF CONTENTS

Cases Crrep:

Evco v. Jones,

Ge US. GR (BBGB) «ccccccessceennneneeu ll

Florida Lime & Avocado Growers v. Paul,

O73 UG. 16B (HBR) ccccccsccccsccuset 17, 22

Hackensack Meadowlands v. Municipal Landfill

Auth.,

68 N.J. 451, 348 A.2d 506 (1975) 6. ce a 2

Hood v. DuMond,

908 US. GHB (ERED) .ccocctsccnenn 15, 17, 18

Huron Portland Cement Co. v. Detroit,

362 U.S. 440, 80 §.Ct. 813, 4 L.Ed.2d

tt OT” 13

Mintz v. Baldwin,

289 U.S. 346 (19GB) cee e neues 22

Parker v. Brown,

B17 U.S. B41 (IDE) nc cc cccccccccccsscnss 18

Pennsylvania v, West Virginia,

968 U.S. SES (1GBS) onc cece ceevcees 17, 18

Philadelphia v. New Jersey,

430 US. 141 (9BUT) on vcccccccsccccuseenn 2

Philadelphia v. New Jersey,

73 N.J. 562, 376 A.2d 888 (1977) .......... 2

Reid v. Colorado,

167 U.S. 1397 (1QOB) nce eee rece eeenees 22

TABLE OF CONTENTS

Cases CITED:

Shaw v. Byram Township,

86 N.J. Super 598, 207 A.2d 570 (App. Div),

certif. denied, 45 N.J. 35, 210 A.2d

EEE EE 10

Sligh v. Kirkwood,

ccc ccc csccceces 14

Southern Ocean Landfill, Inc. v. Mayor and Council

of the Township of Ocean,

64 N.J. 190, 314 A.2d 65 (1974) ............ 10

H.P. Welch Co. v. New Hampshire

306 U.S. 79 (1930) ................... 25, 28

STATUTES CITED:

Laws of 1973, Chapter 363 ............ 2, 3,9, 11

cs... cscs cscs cccuss. 4, 22

cece csc cseceeeeess. 4, 30

ccc cccccscesscesess 12

Resource Conservation and Recovery Act

of 1976, Public Law 94-580, 42 U.S.C.

§6901, et seq ...... 2, 22, 23, 24, 25, 26, 28, 29

Solid Waste Management Act (1970) ........ 5, 8

3 USC. s187(8) ........................... 21

TABLE OF CONTENTS

Rues Crrep:

i fF . 'e. Bere ee 1

ee Tee Ge kw dv anc deadabeceuansesae nee 3

AuTuorities CITED:

Basis and Background for the Proposed Rules of the

Bureau of Solid Waste Management .... 48,

United States Constitution, cited, Article I,

- a. OE eae wey ee ee

18-19

IN THE

SUPREME COURT OF THE UNITED STATES

OcroBer TERM, 1977

No. 77-404

CITY OF PHILADELPHIA, CITY OF GLEN COVE,

LANDFILL AND DEVELOPMENT COMPANY, MAC

SANITARY LANDFILL, INC., KINSLEY’S LANDFILL,

INC., and DeLORENZO-INTERSTATE WASTE

REMOVAL CO., INC. (now INTERSTATE WASTE

REMOVAL CO., INC.),

Appellants,

vs.

STATE OF NEW JERSEY, DEPARTMENT OF

ENVIRONMENTAL PROTECTION OF THE STATE

OF NEW JERSEY and RICHARD J. SULLIVAN,

Commissioner of the Department of Environmental

Protection of the State of New Jersey,

Appellees.

On APPEAL FROM THE SUPREME CourT OF NEW JERSEY

MoTION To DisMiss AND BRIEF IN SUPPORT THEREOF

MOTION TO DISMISS

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

torney General of the State of New Jersey, on behalf of

appellees, hereby moves to dismiss this appeal on the

grounds that it does not present a substantial federal

question.

BRIEF IN SUPPORT OF MOTION

PRELIMINARY STATEMENT

This appeal is before the Court for the second time.

On November 18, 1975, the Supreme Court of New Jersey

issued its decision sustaining the constitutionality of New

Jersey's statutory prohibition (L. 1973, c. 363) against

the disposal within New Jersey of waste originating out

of state. Hackensack Meadowlands v. Municipal Land-

fill Auth., 68 N.J. 451, 348 A.2d 505 (App. 27-53). A

notice of appeal and jurisdictional statement were filed

by the appellants, and the State of New Jersey filed a

motion to dismiss for lack of a substantial federal ques-

tion. However, the Court noted probable jurisdiction on

April 5, 1976. 425 U.S. 910. Oral argument was held on

November 3, 1976, and on February 23, 1977 the Court

remanded the matter to the Supreme Court of New Jersey

for reconsideration in light of the then recently enacted

Resource Conservation and Recovery Act of 1976. Pub.

Law 94-580, 42 U.S.C. §6901, et seq. Philadelphia v.

New Jersey, 430 U.S. 141 (1977) (App. 54-56). The

appeal was reheard by the Supreme Court of New Jersey

on May 10, 1977 on an accelerated basis and on June 20,

1977 that court issued its decision holding that the New

Jersey legislation was not incompatible with the Resource

Conservation and Recovery Act. Philadelphia v. New

Jersey, 73 N.J. 562, 376 A.2d 888 (1977) (App. 57-69).

A new notice of appeal and jurisdictional statement now

have been filed.

The arguments for dismissal of this appeal for lack

of a substantial federal question were appropriately set

forth in the brief in support of the motion to dismiss

the initial appeal. However, the State is mindful of the

fact that the Court previously has noted probable juris-

diction and, after full briefing by both parties and oral

argument, it remanded the matter to the Supreme Court

Counter-Statement of the Case 3

of New Jersey for consideration of a new issue without

any suggestion that jurisdiction had been improvidently

noted. Therefore, by letter dated September 26, 1977,

the Attorney General of New Jersey advised the Clerk

of the Court that the State did not desire to repeat the

arguments contained in its previous motion to dismiss

and that pursuant to Rule 16(3) it would expressly waive

the right to file a new motion to dismiss. However, by

letter dated October 17, 1977, the Clerk of the Court

advised the Attorney General that the Court had re-

quested a new response to be filed. Accordingly, the

Attorney General submits herewith a motion to dismiss

appropriate for reconsideration of the prior order noting

probable jurisdiction.

QUESTIONS PRESENTED

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

Clause 3) of the United States Constitution require a

state acting to fulfill its obligation to provide solid waste

i facilities for its own residents also to provide

such facilities for other states?

2. Did Congress in enacting the Resource Conser-

vation and Recovery Act of 1976 intend to pre-empt state

legislation prohibiting the disposal within its boundaries

of waste originating out of state?

COUNTER-STATEMENT OF THE CASE

On January 2, 1974, the Governor of New Jersey

signed into law chapter 363 of the Laws of 1973, which

was to become effective on February 1, 1974 (App. at

70-71). This legislation contained an express finding

that:

. . . the volume of solid and liquid waste continues

to rapidly increase, that the treatment and disposal

Counter-Statement of the Case

of these wastes continues to pose an even greater

threat to the quality of the environment of New

Jersey, that the available and appropriate land fill

sites within the State are being diminished, that the

environment continues to be threatened by the treat-

ment and disposal of waste which originated or was

collected outside the State, and that the public health,

safety and welfare require that the weatment and

disposal within this State of all wastes generated

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

App. at 78).

Based on this finding the New Jersey Legislature directed

that:

“No person shall bring into this State any solid or

liquid waste which originated or was collected out-

side 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 weifare and has promulgated regulations

permitting and regulating the treatment and disposal

of such waste in this State.” N.J.S.A. 13:1I-10 (App.

at 70-71).

The crisis in solid waste disposal in New Jersey lead-

Counter-Statement of the Case 5

volves much more than daily soil cover and the use

of massive machinery, although these by no means

are unimportant. In New Jersey virtually all sanitary

landfills can be expected to produce leachate, a nox-

ious and highly polluted liquid which is seldom visi-

ble and frequently pollutes our ground and surface

waters. The natural decomposition process which oc-

curs in sanitary landfills generates a mixture of gases.

Much of this mixture is composed 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 ‘marginal.’

Tidal lands, floodplains, and abandoned sand and

gravel mines have been favored as locations for dis-

posing of our wastes because such lands were inex-

pensive, 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 doing so.

“Sanitary landfills produce leachate when water in-

filtrates the fill. More than half of our wastes con-

sist 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

ing to the enactment of the ban on the dumping of waste

originating out of state was cogently described in a report

submitted to the trial court, entitled “Basis and Back- |

ground for the Proposed Rules of the Bureau of Solid

Waste Management’: ,

sponge, the absorptive capacity of a sanitary landfill

“Recent studies indicate that sanitary landfills have is finite. Water is introduced into the fill through a

environmental problems all their own. We have variety of mechanisms. Natural rainwater percola-

learned that keeping a landfill truly ‘sanitary’ in- tion, off-site drainage into the fill, natural fluctuations

Counter-Statement of the Case

in the groundwater level, tidal influences, and the

water produced through the decomposition of the or-

ganic wastes themselves all are absorbed by the land-

fill ‘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 corresponding

ounce of leachate to be displaced and leave the fill.

Leachate produced in a aie landfill is a highly

polluted liquid characteristic » f the waste in

it was som sro 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.

“Gas is produced in sanitary landfills as a product

of the a _ssneree process. During the early stages

of decomposition, air is present in the fill ar the

decomposition process is therefore called ‘aerobic.’

The principal gas produced during aerobic decom-

position is carbon dioxide (COs),

“As the oxygen in the fill is consumed to produce

COs, the decomposition process becomes increasingly

anaerobic (the absence of air), The gaseous prod-

ucts of anaerobic decomposition are COs and methane

(CH:). In the latter stages of decomposition 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

Counter-Statement of the Case 7

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 loudly under a slight pres-

sure, and the methane would therefore travel 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 structures

on or near a sanitary landfill,

“In 1971, at least 1% million tons of solid waste

generated outside of New Jersey were buried within

this State. The failure on a part of our neighboring

states to provide suitable disposal facilities of theis

own has consumed thousands of landfill acres in New

Jersey, has contributed to the degradation of our

environment, and is increasing the cost of al

for our own municipalities. The depletion of land-

fill space and the mone of stringent air pews

standards in the metropolitan — of our neigh

boring states is increasing the volume of ied

waste disposed of in New Jersey at an ever-increas-

ing rate.

“It is estimated that our metropolitan counties of

Bergen, Essex, Hudson, Passaic and Union have no

more than three years of landfill space remaining.

In an effort to ioe down the landfill depletion pre pro-

cess, the Department of Environmental Protection, in

conjunction with the Hackensack Meadowlands De-

velopment Commission, recently instituted a ban on

the disposal of out-of-state waste within the Hacken-

sack Meadowlands Development Commission district.

The Hackensack Meadowlands ban caused collectors

of out-of-state waste to travel into the suburban re-

8 Counter-Statement of the Case

gions of the state, thus threatening the life

of those disposal sites. This increased the cost of

solid waste collection and disposal for New Jersey's

residents, for when nearby disposal sites are ed,

collectors must haul their waste longer and longer

distances into the State's suburbs and rural areas.

“Since the Solid Waste Mana t Act took ef-

fect in 1970, over f | sites have closed.

During that same only nine new disposal sites

have commenced operations and, of these, only three

accept general municipal-type wastes for disposal.

Concurrently, more and more landfill operations are

discovering that their acreage includes unusable flood

plain or tidal marsh areas and original estimates of

their waste capacity were erroneously high. The

lands now utilized for sanitary landfills are limited,

and both industry and local government have ex-

pressed concern over the scarcity of suitable new

sites,” (Da37-44).°

The primary cause of any problems the City of

Philadelphia may encounter in disposing of its waste

within Pennsylvania is not the lack of facilities in that

State but rather the exclusionary ordinances of surround-

ing communities in Pennsylvania, As stated by David

Damaiano, Commissioner of Streets of Philadelphia:

Sanitary landfills in Pennsylvania are not public

utilities. The Pennsylvania t of Environ-

mental Resources has been legislatively empowered

to regulate such facilities, but cannot compel same

to accept solid waste from any source tever.”

(Pal52).°°

* This notation refers to the to the State's original brief filed

—n which was certified to the Court on

notation refers to the appendix to the appellants’ application for

stay,

9

ARGUMENT

The appellants have not presented any substantial

federal question entitling them to appeal.

A. The Commerce Clause Of The United States

Constitution Does Not Prohibit A State From

Taking Action To Prevent The Disposal Within

Its Boundaries Of Substances Originating Out

Of State Which Are Harmful To Public Health

And The Environment.

The question presented, simply stated, is whether a

state may, consistent with the Commerce Clause, seek to

deal with a solid waste disposal crisis of substantial propor-

tions by prohibiting the dumping of waste originating

outside the state.

The nature of the crisis was stated in emphatic terms

by the New Jersey Legislature and the Supreme Court

of New Jersey. Section 1 of chapter 363 states:

“The Legislature finds and determines that since

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

deus to Oe endin & to canes toe

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 of waste which originated

or was collected outside the State, and that the

public health, safety and welfare require that the

treatment and disposal within this State all

wastes generated outside of the State be prohibited.”

(App. 70).

g

10 Argument

Similarly, the Supreme Court of New Jersey, referring to

its own findings in prior litigation involving solid waste

problems as well as taking judicial notice of legislative

studies, stated:

“The Court is acutely aware of the solid waste

disposal problem which now exists in the State of

New Jersey. Very recently we recognized that it

had reached ‘crisis proportions’ due to the increas-

ing scarcity of sites for dumping and _ landfill.

Southern Ocean Landfill, Inc. v. Mayor and Council

of the Township of Ocean, 64 N.J. 190, 193, 314 A.2d

65 (1974).

ee the shortage problem are other

extremely important environmental considerations.

Many a owe landfills within the State are located

within ecologically sensitive areas, such as flood-

plains and wetlands, or on State-owned public trust

tidelands. The operation of landfills now located in

these areas may have to be limited or discontinued.

An example of this is the action taken by HMDC

in preserving some 1,500 acres of virgin wetlands

which had formerly been tentatively designated for

use as landfill sites. Further actions of a similar

nature are contemplated, thus reducing the esti-

mates of the potential lifespans of such existing

facilities.

“Our Appellate Division has recognized that

and refuse may provide a direct threat to the c

vealth. Shaw v. Byram Township, 86 N.J. Super. 598,

602, 207 A.2d 570 (App. Div.), certif. denied, 45

N.J. 35, 210 A.2d 780 (1965) and indeed the point is

Argument ll

self-evident. Likewise, the detrimental effects which

sanitary landfills have upon the environment have

heen acknowledged:

‘* * * Sanitary landfills conducted on virgin land

forever ruin the possibility of preserving the site

for conservation. Additionally, such landfill op-

erations can have an adverse effect on the eco-

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.’ (App. 33, 35, 46-47).

These findings must of course be accepted on appeal to the

Court unless they lack a reasonable basis in the evidence.

Evco v. Jones, 409 U.S. 91, 94 (1972).

The New Jersey Legislature responded to this solid

waste crisis by enacting chapter 363, the operative section

of which provides:

“No person shall bring into this State any solid or

liquid waste which originated or was collected outside

the territorial limits of the State, except ey to om

fed to swine in the State of New Jersey, until

missioner shall determine thet such action can be per-

mitted without endangering the health, safety

and welfare and has promulga fon yam permit-

ting and regulating the treatment and disposal of such

waste in this State” (App. 70-71).

Pursuant to his statutory responsibilities under chap-

ter 363, the Commissioner of the New Jersey Department

of Environmental Protection adopted rules and regulations,

to become effective concurrently with the statute, which

provided:

12 Argument

“(a) No person shall bring into this State, or accept

for disposal in this State, any solid or liquid waste

which originated or was collected outside the territorial

limits of this State. This Section shall not apply to:

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

Jersey;

2. Any separated waste material, including news-

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

cible materials and not mixed with other solid or

liquid waste that is intended for a recycling or re-

clamation facility;

3. Municipal solid waste to be separated or

cessed into usable secondary materials, including fuel

and heat, at a resource recovery facility provided that

not less than 70 per cent of the thru-put of any such

facility is to be separated or processed into usable

secondary materials; and

4. Pesticides, hazardous waste, chemical waste, bulk

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

cessed or recovered in a solid waste disposal facility

which is registered with the Department for such treat-

ment, processing or recovery, other than by disposal

on or in the lands of this State.” N.J.A.C. 7:1-4.2

(App. 76).

The combined effect of chapter 363 and the implementing

regulation is to prohibit the transportation into New Jersey

of waste for dumping in landfills or burning in incinerators,

while permitting interstate transportation of waste intended

for any productive use, such as resource recovery, energy

recovery or reclamation.

The Supreme Court of New Jersey concluded that this

limited restriction on the dumping or incineration of waste,

Argument 13

as an emergency measure to cope with the State's solid

waste crisis, was not incompatible with the principles of

economic union embodied in the Commerce Clause. It

said:

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

jectives of the statutes and regulations in question

are not only to preserve the health of New Jersey

residents by keeping their exposure to solid waste

and landfill areas to a minimum, but also to preserve

for the benefit of both present and future generations

the natural habitat and ecological values which land-

fill usage would destroy. The Supreme Court has rec-

ognized that the protection of public health through

the preservation of the environment is a valid, and

indeed primary, objective of the police power. Huron

Portland Cement Co. v. Detroit, 362 U.S. 440, 442,

80 S. Ct. 813, 815, 4 L.Ed.2d 852, 855 (1960). Today

it cannot possibly be questioned that the preservation

of the environment and the protection of ecological

values are, without more, sufficient to warrant an ex-

ercise of this power” (App. 47).

These conclusions are fully consistent with the leading

Commerce Clause decisions of the Court.

The Commerce Clause of Art. 1, Section > of the

United States Constitution provides that “(t]he Congress

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

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

not only provides an affirmative grant of authority to Con-

gress but also, even in the absence of congressional action,

precludes the states from interfering with interstate com-

merce. It is equally well established, however, that the

Commerce Clause does not require the states to permit the

importation of articles which are an inherent threat to

14 Argument

public health, safety and welfare and thus a matter of

special concern in the exercise of the states’ police powers.

Clason v. State of Indiana, 306 U.S. 439, 442-443 (1989);

Sligh v. Kirkwood, 237 U.S. 52 (1915). As the Court

stated in Sligh v. Kirkwood, supra:

“The power of the state to prescribe regulations which

shall prevent the production within its borders of

impure foods, unfit for use, and such articles as would

spread disease and pestilence, is well established.

Such articles, it has been declared by this court, are

not legitimate subject of trade or commerce, nor

within the protection of the commerce clause of the

Constitution. “Such articles are not merchantable;

they are not legitimate subjects of trade and com-

merce. They may be rightly outlawed as intrinsically

and directly the immediate sources and causes of de-

struction to human health and life. The self-protect-

ing power of each state, therefore, may be rightfully

exerted against their introduction, and such exercises

of power cannot be considered regulations of com-

merce prohibited by the Constitution.”

“Nor does it make any difference that such regulations

incidentally affect interstate commerce, when the ob-

ject of the regulation is not to that end, but is a legiti-

mate attempt to protect the people of the state . . .”

237 U.S. at 60 (citations omitted) (Emphasis added. )

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

where the Court upheld an Indiana statute which in effect

prohibited the interstate transportation of animal carcasses

not slaughtered for food. The Court, relying on Sligh,

recognized that the statute was “a sanitary and health

measure not intended to cause discrimination against or to

burden interstate commerce . . .” 306 U.S. at 443 (empha-

sis added). The Court clearly stated:

>

Argument 15

“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 regu-

lations for prompt delivery to a'licensed plant there

to be rendered innocuous without delay by prescribed

methods. All this is part of a workable scheme to

secure prompt removal of decaying carcasses and thus

protect against obvious evils.

“We can find no substantial basis for the charge of

discrimination against legitimate interstate commerce.

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 Govern-

ment to regulate interstate commerce does not disable

the State from adopting reasonable measures designed

to secure the health and comfort of their people. The

statute under consideration is an effort to discharge

an obligation to the public; the means adopted we

think are clearly appropriate to this lawful end.” Id.

at 443-4 (Emphasis added).

The Commerce Clause thus does not impair state au-

thority to deal with threats to public health, safety and

welfare. Rather, the intent of the Commerce Clause was

to prevent economic balkanization of the states, such as

by the enactment of legislation designed to further the

economic interests of a state’s own residents at the expense

of others. This point was cogently stated by Justice Jack-

son in Hood & Sons v. DuMond, 336 U.S. 525, 533

(1949):

16 Argument

“This distinction between the power of the State to

shelter its people from menaces to their health or

safety and from fraud, even when those dangers em-

anate from interstate commerce, and its lack of power

to retard, burden or constrict the flow of such com-

merce for their economic advantage, is one deeply

rooted in both our history and our law.”

Measured by these principles, it is clear that chapter

363 does not offend the Commerce Clause because it is

properly designed to protect the public health, safety and

welfare of the residents of this State rather than to serve

any local economic advantage. It is clear, as indiccted

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

there is an acute shortage of available landfill space with-

in New Jersey. This means that New Jersey faces the

threat of not being able to dispose of the wastes generated

within its own boundaries unless it can find new areas

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

does present a serious threat to public health, safety and

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

generates gases which not only can be dangerous to

breathe but also create fire hazards, and it severely limits

the potential future use of property on which landfills are

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

problems, serious in any event, have been significantly

aggravated by the disposal at New Jersey landfill sites

of waste from outside the state. The record before the

Court shows that when this case was first before the Su-

preme Court of New Jersey 8% of all waste disposed in

New Jersey originated out of state (App. 35) and this

percentage has grown to 20% during the pendency of the

litigation. Thus, chapter 363 serves a clear public health,

safety and welfare interest by reducing the overall quan-

tity of waste which the State must dispose or incinerate,

Argument 17

and it is as fully compatible with the Commerce Clause

as was the exclusion in Clason v. Indiana of animal ear-

casses not intended for consumption as food.

It is also clear that there is no element of economic

discrimination in the exclusion from New Jersey of waste

originating out of state. No New Jersey commercial in-

terests stand to gain an advantage from this ban over

competitors from outside the state. On the contrary,

among the appellants are New Jersey landfill operators.

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

nomic preference for its own commercial interests but

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

fare of the citizenry at large, it has denied a small group

of its entrepeneurs an economic opportunity to traffic in

waste.

The appellants rely on the “natural resource” cases

to support their attack upon chapter 363. Pennsylvania v.

West Virginia, 262 U.S. 553 (1923). However, these

cases all dealt with statutes which attempted, as described

in Pennsylvania v. West Virginia, “to regulate the inter-

state business to the advantage of the local customers.

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

under the analysis contained in Hood & Sons v. DuMond,

supra, state regulation “. . . to constrict the flow oe

commerce for their economic advantage... , not an

attempt by the State “.. . to shelter its people from

menaces to their health or safety. . . .” 336 U.S. at 533.

The restrictions were therefore naturally found to offend

the Commerce Clause.

In short, Commerce Clause cases are concerned with

the ioss of products or resources to the chain of commerce.

This is true whether the product or resource is avocados,

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

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

18 Argument

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

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

natural gas, Pennsylvania v. West Virginia, supra. In the

present case, on the other hand, chapter 363 was not

designed nor does it have the effect of furthering New

Jersey commercial interests. Rather, its objective was to

protect the citizens of the State from the direct threats

to the public health and the environment noted by the

Supreme Court of New Jersey.

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

sions of the Court holding that the Commerce Clause is

not violated by state legislation directed towards the pro-

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

pellants now urge, notwithstanding the record which was

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

posal of waste really involves no threat to the health or

welfare of New Jersey's residents. However, appellants

presented no substantial material to the state courts to

cast any doubt on the prevailing view that landfills do

present serious health and environmental problems. In

fact, the only material on this subject submitted to the

trial court on the cross motions for summary judgment

was a lengthy document entitled, “Basis and Background

for the Proposed Rules of the Bureau of Solid Waste Man-

agement.” This report stated inter alia:

“Recent studies indicate that sanitary landfills

have environmental problems all their own. We

have learned that keeping a landfill truly ‘sanitary’

involves much more than daily soil cover and the

use of massive machinery, although these by no

means are unimportant. In New Jersey virtually all

sanitary landfills can be expected to produce leach-

ate, a noxious and highly polluted liquid which is

seldom visible and frequently pollutes our ground

Argument 19

and surface waters. The natural decomposition

process which occurs in sanitary landfills generates

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

of methane, the same ‘natural’ gas used in

cooking and heating.’ (Pa37).

After discussing in greater detail the environmental and

health problems in solid waste disposal, the document

concludes with a two-page bibliography of pertinent liter-

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

There was therefore an abundance of material before the

Supreme Court of New Jersey dealing with the environ-

mental and health problems posed by waste disposal, on

which it appropriately relied in its opinion.

Apparently recognizing that the record simply does

not support their claim that this case falls outside the

Clason v. Indiana line of cases, appellants also argue that

the Supreme Court of New Jersey somehow thwarted

their efforts to develop a full record and thereby denied

the appellants due process of law. This contention is

frivolous. It was appellants’ trial strategy which de-

termined the course of proceedings in the state courts.

Soon after the filing of their complaint, the appellants

moved for summary judgment “. . . only upon the issues

of federal pre-emption and discrimination against inter-

state commerce .. .” (App. 134). Thus the essential

thesis upon which the matter was submitted to the trial

court was that, regardless of the impact on environmental

degradation, if New Jersey permitted the dumping in

landfills of waste originating within the state, it was also

obligated by the Commerce Clause to accept out-of-state

garbage for dumping in its landfills. On appeal, appel-

lants again essentially relied upon the thesis that chapter

363 violated the Commerce Clause by “discriminating

against waste originating out of state. No serious ques-

20 Argument

tion was raised as to the validity of legislative findings

that environmental degradation was being aggravated by

the dumping in New Jersey of wastes originating out of

state. However, the Supreme Court of New Jersey re-

jected the appellants’ thesis, finding that “. . . the pur-

pose of the legislation is to protect the inhabitants and

vital resources of New Jersey, not to impose economic

barriers or create commercial restrictions . . . ” (App. 50),

and it therefore rejected appellants’ claim that chapter

363 was inconsistent with the Commerce Clause. It was

then for the first time on a motion for remand to the trial

court that appellants raised questions concerning the find-

ings of the New Jersey Legislature and the Supreme

Court of New Jersey as to the deleterious impact on the

environment of the dumping of out-of-state wastes in New

Jersey (App. 149-151). 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. 154). Therefore, assuming that

any facts remained to be heard, which the State denied,

the appellants were given an opportunity to develop

those facts. However, the appellants deliberately elected

not to proceed before the trial court and instead to enter

into a consent dismissal with prejudice. It is therefore

surprising, to say the least, to find appellants claiming

that this disposition by the state courts denied them due

process of law. Appellants’ explanation for this strange

procedural posture is to say that they needed an injunc-

tion 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 not in their

strategic best interests to continue with state court pro-

ceedings. However, appellants’ strategic situation did

not differ from that of any other party who has been

Argument 21

denied preliminary injunctive relief by a state court, since

the right of appeal from the state courts to the Supreme

Court of the United States is limited to final judgments

under 28 U.S.C. §1257(2). 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 appel-

lants’ due process argument is therefore plainly frivolous.

Finally, it should be noted that if any appellant land-

fill operator really were in a position to establish that it

could conduct a disposal operation for waste originating

out of state without threat to the health, safety and wel-

fare of New Jersey citizens, it could obtain a further ex-

emption from the prohibitory impact of chapter 363. The

statute confers broad power upon the Commissioner of

Environmental 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 pub-

lic health, safety and welfare . . .” (App. 62). If any

party were able to show that any exemptions from the

prohibition against dumping waste originating out of

state could be adopted “. . . without endangering the

public health, safety and welfare . . .”, it must be pre-

sumed that the Commissioner would extend the scope of

the existing exemptions. However, in the procedural

posture in which appellants have placed this matter be-

fore 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 —

that the treatment and disposal within this State of al

22 Argument

wastes generated outside of the State be prohibited.”

N.J.S.A. 13:11-9. Accordingly, the court properly found

chapter 363 to be consistent with the Commerce Clause.

B. The Federal Resource Conservation And Recov-

ery Act of 1976 Does Not Pre-Empt State Legis-

lation Prohibiting The Disposal Within Its Boun-

daries Of Waste Originating Out Of State.

It is now well established that an intent to pre-empt

state legislation should not be inferred unless there is “an

unambiguous congressional mandate to that effect.”

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

147 (1963). The Court has been particularly reluctant

to find an intent to pre-empt state legislation which has

been enacted to serve environmental interests (Askew v.

American Waterways Operators, Inc., 411 U.S. 325

(1973); Huron Cement Co. v. Detroit, 362 U.S. 440

(1960)); or to protect public health. Mintz v. Baldwin,

289 U.S. 346 (1933); Reid v. Colorado, 187 U.S. 137, 147-

149 (1902). Therefore, the plaintiffs must bear the

heavy burden of demonstrating an unambiguous congres-

sional man’ « that the Resource Conservation and Re-

covery Act of 1976, Pub. L. 94-580, 42 U.S.C. §6901, et

* seq., (hereinafter “the Act”) pre-empts New Jersey's

statute prohibiting the disposal of waste originating out

of state.

The plaintiffs have failed to satisfy that burden, be-

cause they have not shown that the Act on its face in

any way undermines the validity of New Jersey's prohi-

bition against the disposal within the State of waste ori-

ginating out of state. On the contrary, the only sense

in which the Act bears on this case is that it contains

express congressiona! recognition of the principal prem-

ises on which defense of the validity of the New Jersey

statute rests.

and public health. Thus, section 1002(b) (42 U.S.C.

§6901(b)) states that:

“ENVIRONMENT AND HEALTH.—The Con-

gress finds with respect to the environment and

health, that—

“(1) although land is too valuable a national re-

source to be needlessly polluted by discarded ma-

terials, most solid waste is disposed of on land in

open dumps and sanitary landfills;

“(2) disposal of solid waste and hazardous waste

in or on the land without careful planning and man-

agement can present a danger to human health and

the environment;

“(3) as a result of the Clean Air Act, the Water

Pollution Control Act, and other Federal and State

laws respecting public health and the environment,

greater aaa of solid waste (in the form of sludge

and other pollution treatment residues) have been

created. Similarly, inadequate and environmentally

unsound practices for the disposal or use of solid

waste have created greater amounts of air and water

pollution and other problems for the environment

and for health;

“(4 dumping is particularly harmful to

health cual drinking water from under-

and surface supplies, and pollutes the air

and the land;

24 Argument

“(5) hazardous waste presents, in addition to the

problems associated with non-hazardous solid waste,

special dangers to health and requires a greater de-

gree of regulation than does non-hazardous solid

waste; and ;

“(6) alternatives to existing methods of land dis-

posal must be developed since many of the cities

in the United States will be running out of suitable

solid waste disposal sites within five years unless

immediate action is taken; .. . .”

Secondly, the Act constitutes an express congressional

recognition that the problems of solid waste disposal are

primarily of state and local, not national, concern. Thus,

section 1002(a)(4) (42 U.S.C. §6901(a)(4)) states that

“. . . the collection and disposal of solid wastes should

continue to be primarily the function of State, regional

and local agencies ... .” This point is underscored by

the comments during deliberations on the bill on the floor

of the Senate. The co-sponsor of the bill, Senator Ran-

dolph, stated:

“In developing this legislation, the members of the

Committee on Public Works recognized that solid

waste is a uniquely local problem and that

in this area should be developed and managed at the

local government level.” 122 Cong. Rec. 11069 (re-

marks of Senator Randolph).

The one area in which the Act has imposed a direct

regulatory responsibility upon the federal government is

with respect to hazardous waste. The Administrator of

EPA has the responsibility under section 3001 (42 U.S.C.

§6921) for identifying the characteristics of hazardous

waste and listing particular hazardous wastes not later

than eighteen months after enactment of the Act. The

Argument 25

Administrator is required within the same period to pro-

mul regulations governing the generation, storage,

~neetin and disposal of hazardous waste. Section

3002-3005 (42 U.S.C. §6922-6925).

Although the exact parameters of the eventual federal

of hazardous waste are difficult to predict at

this time, it is clear that the assumption of federal regula-

tory control over the subject has no immediate impact

upon New Jersey's prohibition against the disposal of

waste originating out-of-state and only a limited potential

long range impact. First, these sections of the Act are not

self-im ting but rather are dependent upon the pro-

mul by the Administrator of EPA of a list of hazard-

ous wastes and of regulations governing their generation,

storage, transportation and disposal. Since the Adminis-

trator has eighteen months within which to promulgate

such lists and regulations, the federal regulation of this area

probably will not become operative at all for at least six

months. It is firmly established that such potential future

regulation of a subject matter by a federal agency does

not pre-empt present regulation by the states. Colorado

pred tuner Commission v. Continental Air Lines,

372 U.S. 714, 723-724 (1963); H. P. Welch Co. v. New

Hampshire, 306 U.S. 79, 84-85 (1939).

Secondly, and even more importantly, when ot xa

eral becomes operative, it wi

a a ee cate! This term is generally

understood in the field of solid waste management to ap-

ply solely to industrial wastes which are inherently danger-

ous to plant and animal life. The Senate Committee on

Public Works noted in its report on the Act that “[m]a-

terials of major concern are arsenic wastes, insecticide and

icide residues, waste oil, explosive wastes, sludge con-

taminated with metals such as chromium and zinc, and

26 Argument

radioactive wastes.” S. Rep. No. 94-988, 94th Cong., 2d

Sess. 3 (1976). In the Act, “hazardous waste” is defined

as:

. a solid waste, or combination of solid wastes,

which because of its quantity, concentration, or

physical, chemical or infectious characteristics may—

“(A) cause, or significantly contribute to an in-

crease in mortality or an increase in serious irrevers-

ible, or incapacitating reversible, illness; or

“(B) pose a substantial present or potential hazard

to human health or the environment when impro-

pertly treated stored, transported, or disposed of, or

otherwise managed.” Section 1004(5) (42 U-S.C.

§6903(5) ).

It seems clear that ordinary household and commercial

waste, or garbage, would not fall within these criteria for

defining “hazardous waste” and thus would not be sub-

ject to federal regulation under section 3001-3011 (42

U.S.C. §6921-§6931) of the Act. This conclusion is con-

firmed by the Report of the Senate Committee on Public

Works on the Act which expressly states that the permit

system for hazardous wastes “. . . is not to be used to

control the disposal of hazardous substances used in house-

holds or to extend control over general municipal wastes

based on the presence of such substances.” S. Rep. No.

94-988, 94th Cong., 2d Sess., 16 (1976). Since the New

Jersey statute as limited by its implementing regulations

is primarily directed towards general municipal waste

and the plaintiffs apparently are engaged solely in the

disposal of such waste, the federal regulation of “hazardous

waste” would have no effect on the subject matter of the

instant appeal.

Argument 27

In addition to providing for direct federal regulation

of “hazardous waste,” the Act also establishes a system

of incentives for regional planning with respect to the

reclamation or disposal of other solid wastes. Although

the exact future scope of federally supervised regional

solid waste planning by state and local agencies, like the

direct federal regulation of hazardous wastes, cannot be

forecast with any assurapce, it clearly has no immediate

impact upon the New Jersey prohibition against the dis-

posal of waste originating out of state. The regional plan-

ning provisions of the Act are not self-implementing but

rather will become operative only after administrative

action at both federal and state levels. The Administrator

of EPA has 180 days after enactment of the Act to pub-

lish guidelines for identifying regional solid waste plan-

ning areas, and thereafter the governors of the states have

two further 180 day periods for identifying the boundaries

of regional planning areas and the agencies to carry out

such planning; there is thus an overall period of nearly

eighteen months before regional planning areas and im-

plementing agencies even will be identified. Although the

Act sets no deadline for the actual submission of regional

it must be assumed that some additional period

will be required for this purpose beyond the eighteen

months allowed for identifying planning regions and im-

plementing agencies. Thus, since it will be several years

before regional plans under the Act become operative,

these sections of the Act can have no immediate impact

upon the enforcement of chapter 363.

Furthermore, there is no substantial basis for con-

cluding that chapter 363 will be incompatible with the

solid waste planning provisions of the Act even when

they become fully operational. First, it should be noted

that the only way there could be a conflict between the

28 Argument

New Jersey statute and a regional plan under the Act is

if the plans of New Jersey and its neighboring states in-

clude “interstate regions” pursuant to section 4006(c)

(42 U.S.C. §6946(c)). Therefore, it is purely conjec-

tural at this point whether the occasion will arise even

for discussions for interstate regional planning areas. And,

as previously noted, the mere possibility of conflicting

regulatory action by a federal agency at some future date

does not invalidate state legislation. Colorado Anti-Dis-

crimination Commission v. Continental Air Lines, supra;

H. P. Welch Co. v. New Hampshire, supra.

Secondly, it is clear that the planning provisions of

the Act are intended to be voluntary, with the loss of

federal financial assistance being the only consequence of

a state's failure to participate in the federal program. The

voluntary nature of the planning provisions of the Act is

clearly evident in the specific section of the Act dealing

with “interstate” regions, which specifically states that the

establishment of such “interstate” regions shall be by

“agreement” of the respective governors. Furthermore,

there is no provision in the Act for the Administrator im-

posing an interstate plan in the event the governors fail

to agree. Therefore, the sole possible consequence of the

governors failing to come to an agreement would be the

loss of federal financial assistance in accordance with the

terms of section 4007 (42 U.S.C. §6947(b)) of the Act.

The intent of Congress to make regional planning

voluntary is confirmed by the numerous statements in the

legislative history that “. . . States and areawide solid

waste management planning agencies have free choice

in selecting the elements of their solid waste management

plans.” S. Rep. No. 94-988, 94th Cong,, 2d Sess., 11 (1976).

This point is stated with particular clarity in the Report

of the House Commerce Committee:

Argument 29

“It is the Committee's intention that federal as-

sistance should be an incentive for state and local

authorities to act to solve the discarded materials

problem. At this time federal preemption of this

problem is undesirable, inefficient, and damaging to

local initiative.

“Simply, the discarded materials problem is one

of planning and the Committee anticipates that fed-

eral guidelines for planning will foster the necessary

cooperation between the federal government, states,

and local regions, to meet very broad and flexible ob-

jectives of this act. If those objectives are not met,

the states and local authorities within the states will

lose the federal or technical assistance. However,

the provisions of this legislation, specifically do not

authorize the federal government to take over the

responsibility for discarded materials disposal plan-

ning.” H. Rep. No. 94-1491, at 33.

Therefore, even if the guidelines promulgated by the Ad-

ministrator under section 4002(a) (42 U.S.C. §6942(a) )

suggested the appropriateness of an interstate region en-

compassing New Jersey, the Governor of New Jersey still

would have the option whether to agree to such a plan.

In any event, even if the Act could be read to impose

a mandatory obligation upon the respective states to par-

ticipate in regional planning, chapter 363 would not stand

as an obstacle to compliance with that provision. Chap-

ter 363 does not by its terms preclude the Governor of

New Jersey from conferring with the governor of a sister

state regarding regional solid waste planning. And if the

procedures of the Act eventually were to result in an agree-

ment between the governors of the respective states which

was inconsistent with a total ban on the disposal in New

30 Argument

Jersey of out-of-state waste, this could be easily imple-

mented through a further exercise by the Commissioner

of Environmental Protection of his power to adopt excep-

tions from the total ban where that can be done “. . . with-

out endangering the public health, safety and welfare. . . .”

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

Therefore, as also concluded by the Solicitor General

of the United States in his Memorandum on the Applica-

tion for Stay of Judgment Pending Appeal, the enactment

of the Resource Conservation and Recovery Act of 1976

does not pre-empt or in any way undercut the validity of

the New Jersey legislation prohibiting the disposal of

waste originating out of state. Rather, it reflects congres-

sional concurrence with the view that the disposal of waste

does not involve the national interest in maintenance of

an open economy, but instead the discharge by govern-

ment under the police power of a fundamental responsibil-

ity to provide for the disposal of waste generated by its

inhabitants with the least possible adverse impact upon

health, the environment and land use.

31

CONCLUSION

It is respectfully submitted that for the foregoing

reasons the appeal should be dismissed for lack of a sub-

stantial federal question.

Respectfully submitted,

WILLIAM F. HYLAND

Attorney General of New Jersey

Attorney for Appellees

STEPHEN SKILLMAN

Assistant Attorney General

Of Counsel and

On the Brief