Appellants Brief — Philadelphia v. New Jersey
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FILED
JAN 12 1978
Supreme Court of the United States
October Term, 1977.
No. 77-404.
CITY OF PHILADELPHIA, CITY OF GLEN COVE, LANDFILL
AND DEVELOPMENT COMPANY, MAC SANITARY
LANDFILL, INC., KINSLEYS LANDFILL, INC., and
DeLORENZO-INTERSTATE WASTE REMOVAL CO., INC.
(Now INTERSTATE WASTE REMOVAL CO., INC.),
Appellants,
oD.
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRON-
MENTAL PROTECTION OF THE STATE OF NEW
JERSEY and RICHARD J. SULLIVAN, Commissioner of the
Department of Environmental Protection of the State of New
Jersey,
Appellees.
On Appeal From the Supreme Court of the State of
New Jersey.
BRIEF OF APPELLANTS.
HERBERT F. Moore,
ARTHUR MEISEL,
Jamieson, McCaRDELL,
Joun R. Papova, Moore, Peskin & SPICER,
Soto & Papova, A Professional Corporation,
3rd Floor, Lewis Tower Building, 19 Chancery Lane,
15th and Locust Streets, Trenton, N. J. 08618
Philadelphia, Penna. 19102 (609) 396-5511
Special Legal Consultant to
Appellant City of Philadelphia. Attorneys for Appellants.
international Printing Co., 711 So. SOth St., Phila., Pa. 19143 — Tel. (215) 727-8711
7” Supreme Court, U. $,
a a cesatiede
a at lates
Co a ee ee
QUESTIONS PRESENTED ...............0.000cceeeee:
STATEMENT OF THE CASE ....................0000.
A.
C.
D.
The Interstate Movement of Solid or Liquid Waste
for Purposes of Resource Recovery, Treatment or
Disposal Is Commerce Within the Meaning of the
ESSE rE ara re
P. L. 1973, c. 363, on Its Face Discriminates Against
and Directly Burdens Interstate Commerce .......
A State Statute That Prohibits Persons From Bring-
ing Solid and Liquid Waste Into a State Is in Conflict
With a Federal Statute That (a) Requires Coopera-
tion in the Establishment of Solid Waste Manage-
ment Plans for Interstate Regions, and (b) Provides
for the Issuance of Federal Permits to Owners and
Operators of Hazardous Waste Treatment, Storage
OE has Ch ncaedadidecckccscedcs
Hazardous Waste Management ..............
Interstate Solid Waste Management ..........
Appellants Were Unconstitutionally Denied a Plenary
Hearing on the Merits of Their Claim ............
SPEED cc Se cbesceccwesscosecnevevscedcscceccce
TABLE OF CITATIONS.
Cases: Page
Alexandria Scrap Corporation v. Hughes, 391 F. Supp. 46
(Md. 1975), rev. 426 U. S. 794 (1976) ............... 31
Asbell v. Kansas, 209 U. S. 251 (1908) ................... 35
Baldwin v. G. A. F. Seelig, 294 U. S. 511 (1935) ........... 44
Best & Co. v. Maxwell, 311 U. S. 454 (1940) ..... iveauueen 35, 40
Bourjois, Inc. v. Chapman, 301 U. S. 183 (1937) ........... 34
Brimmer v. Rebman, 138 U. S. 78 (1891) ................. 37
Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673 (1930) ......... 74
Cities Service Co. v. Peerless Co., 340 U. S. 179 (1950) ..... 34
City of Altus, Oklahoma v. Carr, 255 F. Supp. 828 (W. D.
Tex. 1966), affd 385 U. S. 35 (1966) ................. 44
City of Burbank v. Lockheed Air Terminal, 411 U. S. 624
DD istniducukdudenecaneenesdeaahehaenteadtuces 68
City of Philadelphia v. State Dept. of Environ. Protec., 73
DE cuteccdsconbbbeetedeotubehabenechas 2
City of Philadelphia v. State, 376 A. 2d 888 (N. J. Sup. Ct.
De Lidudvdiernubeatachsacddatakdsdendconkoisedaa 2
Colorado Comm'n v. Continental, 372 U. S. 714 (1963) ..... 68
Dahnke-Walker Co. v. Bondurant, 257 U. S. 282 (1921) .... 26
Dean Milk Co. v. Madison, 340 U. S. 349 (1951) .......... 34, 35
Douglas v. Seacoast Products, Inc., 431 U. S. 265 (1977) . .41, 62, 63
Federal Radio Commission v. Nelson Bros. Bond & Mortgage
Gis Se is Oe ED hike ccc vecdcesc cave vccesees 28
Foster-Fountain Packing Co. v. Haydel, 278 U. S. 110 (1928)
28, 32
FPC v. Florida Power & Light Co., 404 U. S. 453 (1972) .... 2
Gibbons v. Ogden, 22 U. S. 1 (1824) .................... 62
Grannis v. Ordean, 234 U. S. 385 (1914) ................. 73
Great A. & P. Tea Co. v. Cottrell, 424 U. S. 366 (1976) ..... 34
Hackensack Meadowlands v. Mun. Landfill Auth., 127 N. J.
Super. 160 (Ch. 1974), rev. 68 N. J. 451 (1975), prob.
juris noted 425 U. S. 910 (1976), remanded sub nom.
Philadelphia v. New Jersey, — U. S. — (1977) ....... passim
we
TABLE OF CITATIONS (Continued).
Cases (Continued): Page
Head v. New Mexico Boar” 774 U. S. 424 (1963) ......... 40
Hines v. Davidowitz, 312 U. S. 52 (1940) ................ 60
Horn v. Community Refuse Disposal, Inc., 186 Neb. 43, 180
N. W. 2d GOL (Sup. Ce. 1970) .........ccccccccccess 56
H. P. Hood & Sous, Inc. v. Dumond, 336 U. S. 525 (1949) .. 41
Hunt v. Washington State Apple Advertising Commission, —
i et GED ac iweeddnescueehsacduuhsserndees ses 35, 45
Huron Cement Co. v. Detroit, 362 U. S. 440 (1960) ..... 40, 41, 63
Jones v. Rath Packing Co., 430 U. S. 519 (1977), reh. den. 431
a END Swan cdcéchedhteenscteccicsenncd 59, 60, 68
Judson v. Peoples Bank & Trust Co. of Westfield, i7 N. J. 57
SEED dsncdend Uhenedédesnbacodensddectecsacecenss 69
Mascaro & Sons, Inc. v. O'Hara, Inc., — F. 2d — (3 Cir.
1977), 1977-2 Trade Cases, § 61,727 ..............24:: 30, 42
Minnesota v. Barber, 136 U. S. 313 (1890) ............... 38
Mullane v. Central Hanover Tr. Co., 339 U. S. 306 (1950) .. 73
Myers v. City of Hagerstown, 214 Md. 312, 135 A. 2d 147
CG, Bee, BEBE) ecccccccvcccccccccccccccccccecsecs 56
Oklahoma v. Kansas Nat. Gas Co., 221 U.S. 229 (1911) .... 43
Oreg.-Washington Co. v. Washington, 270 U. S. 87 (1926) . .38, 39
Penna. v. West Virgina, 262 U. S. 553 (1923) ............. 43
Perez v. Campbell, 402 U. S. 637 (1971) ................- 60, 67
Philadelphia v. New Jersey, — U. S. — (1977), on remand
Be Be GE ene caccvesbcccesscqseseseoccsces passim
Pike v. Bruce Church, Inc., 397 U. S. 137 (1970) .......... 35
Pipe Line Cases, 234 U. S. 548 (1914) ...............-45. 28
Plumley v. Massachusetts, 155 U. S. 461 (1894) ........... 3, 37
Polar Ice Cream & Creamery Co. v. Andrews, 375 U. S. 361
CTD ccccccceccccecdecccccesesccsovetvcevecesece 44
Public Utilities Comm. v. Landon, 249 U.S. 236 (1919) .... 2
Railroad Co. v. Husen, 95 U. S. 465 (1877) ...... 36, 37, 38, 39, 40
Rasmussen v. Idaho, 181 U. S. 198 (1901) ................ 38, 39
Rearick v. Pennsylvania, 203 U. S. 507 (1906) ............ 28
TABLE OF CITATIONS (Continued).
Cases (Continued): Page
Rhodes v. Houston, 202 F. Supp. 624 (D. Neb. 1962), affd
309 F. 2d 959 (8th Cir. 1962), cert. den. 372 U. S. 909
CE Ge We GB GES CD ccccccesccscccceccceces 74
Rocchi v. Zoning Bd. of App. of Town of Glastonbury, 157
Conn. 106, 248 A. 2d 922 (Sup. Ct. 1968) ............ 56
Savage v. Jones, 225 U. S. 501 (1912) .................... 3
Schollenberger v. Pennsylvania, 131 U. S. 1 (1898) ......... 34
Scott v. Donald, 165 U. S. 58 (1897) ..................0.. 38
Shafer v. Farmers Grain Co., 268 U. S. 189 (1925) ......... 28
Southern Pacific Co. v. Arizona, 325 U. S. 761 (1945) ...... 34
Telegraph Co. v. Texas, 105 U. S. 460 (1882) ............. 28
Thornton v. United States, 271 U. S. 414 (1926) ........... 28
United States v. Pennsylvania Refuse Removal Ass'n, 242 F.
Supp. 794 (E. D. Pa. 1965), affd 357 F. 2d 806 (3rd
Cir. 1966), cert. den. 384 U. S. 961 (1966) ............ 29, 30
U. S. v. Underwriters Assn, 322 U. S. 533 (1944) .......... 28
Wood v. Town of Wilton, 156 Conn. 304, 240 A. 2d 904 (Sup.
Ek SD ndccdjoncceadncacesegebiyessequdchbawention 56
Statutes:
United States
Ph Tl denn cncenedebeneeedestesssesecndenasess 29
SED, <ccntddncvntahnccnebuvenesidenadenicn 3
ey Oe ED on ndcanédsennendectadcacsnaesasonss 3
Ct cL hivsne ceeenseceeteeonennnees Gahanna 23
EE vitnecnebecadddndabavensdpeneiennda 23, 54, 55
enn ddadddednedekadewmendumenn 62
ink cnc etteneceheucesntssekeneednnle 61, 62
a did ds behasendbeskimnrenweseaaue 61, 62
Ec dnbphunctedendeindadusndatéemiensadsens 61, 62
Eo bitinssesinctensscnsereeseduatansectas 61
CT coc cevnecencteshecebentmmnnaenell 61, 62
TABLE OF CITATIONS (Continued).
Statutes (Continued): Page
United States (Continued)
4B U. S.C. $OBEB(a) .. 22. cece ccc ccc cece cccceeeccccces 65
4B U.S. C. $ OBE 2... cc cece cece cece cece ccc ecccccees 45, 54
42 U.S. C. § OB4B(c)(1) .. 2.2... cece cece eee ee eee ee eees 65
42 U. S. C. § OB4B(c)(2) ... 0... cece cece eee ee ee ee eeeee 65
4B U.S. C. $OBIB(O) 2... ccc cc cccc cece cece ccccccencees 66
New Jersey
N. J. S. A. UB:UD-Ta 2.2... eee e cece eee e eee ee cence 47
N. J. S. A. IB:UD-IS 20.2... cece e cece cece cece cence eecees 47
N. J. S. A. UB:DBR] 20.2... c cece cece cece cece cccccceccs 31
N. J. S. A. IB:UE-Be 2.2... cc eee e cece cece eee neceeeee 32
N. J. S. A. UB:IE-GB ... 2... eee eee eee eee cece cece eeeees 63
Nk. snchnarseustscnsbecesensaraes 63
N. J. S. A. IB:IE-GB 2.0... cece cece cece cece eeeneees 47
N. J. S. A. 13:1I-1 et seq. ....-.---- ee ee cece eee eee ee eeees 45
N. J. S. A. UB:Ui-4e 2.1... eee eee eee eee eee reece eeeceee 46
N. J. S. A. QB:YA-T 2... c eee cece cece eee cent eet eeeeees 46
N. J. S. A. S2:22B-1 0... cece cece eee cent ee eeeee 8, 67
N. J. S. A. 32:27-1, et seq. .....---- eee eee e cece eee eeee 66
N. J. S. A. 4B:2-13 0.2... eee cece cece cence cence eeeceeee 31
N, J. S. A. 48:2-23 2.2... cece eee eee cece ence cece eeeee 53
N. J. S. A. 48:13A-L, et seq. ....- 6... cece cece e cece cece 31
aS eS Pee passim
Connecticut
C. G. S. A. § ID-BOD .. 2... ccc c ccc cece cece eee csccccccees 8, 67
Pennsylvania
BB B.S. GODOT 2... ccc cree cccccccccccccccccccccccces 44
TBD. DB. GTOB .ncccccccccccccccccccccccccccccccccesccce 66
New York
McK Unconsol. Laws § 830 ............--20eeeee eee eeees 8, 67
TABLE OF CITATIONS (Continued).
Canstiiatiens Rete Page
U. S. Constitution
Aatiefe 1, Ses. G, oh. B ... ceccccccccncscccunensue 18, 19, 20
EE ——=—“_ 73, 76
TTT tt— Ke
Poustesmth Amendment ......cccccesccccccsscesesuuenee 73, 76
Administrative Regulations
United States
4D CPR OSES ..ccccccccecsccsessessannnuannnnee 66
4D CPR '§ SEEDS... cccccccccccescossesssseneueeeel 66
@ CPR GGURBMe) «. .0000c00cecccsssnnneeeeeee 66
GD CPR 6SEEED .. cccccccccccessecesennannnnnenenee 66
4D CPR §STEGS .... .ccccccccescecececesennnneneeee 66
4 CPR §SFEGMe) ....cccccscccccccsessccnunnaneeel 66
New Jersey
BE. 3. A. G. Feb .. ccccccccccecenssseucnueneeeee 15
MN. 3. A. G FebOS ..cccccccccccccececesenuunnene 15
N. J. A. C. 7:26-1, et seq. (proposed) ..............+.-- 18, 31, 48
BE. 3. A. C. THBEAGD .. cc ccccccccccssccsuscanneeeeeeee 58
ee ST tt— 57
BE. 3. A. GC. TBGRA .....<0:000000500ceueunneee 49, 58
2. A. C. TABOR . nn cvccccccccesceccesensneeeeeee 48
M. Bb A CG FBGRS ....cccccccccscscscugunnneeee 49
MB A. CG FB GBS .cciccccscccccscesssesenseeee 49
CB. A. G FDO 2. cccccscccvccccdcocusessnsneneeee 49
0. B.A. G FEBGRS .. ce ccccccccccsssescsunsuneneeeene 49
ME. A. G FeBOES ..ncccccecccceetsecsecussanneeuee 51
M.S. A. C. TABOR oc cccccccccccsscocscceusnsenenueee 51
BB. A G FBG 2. cvccccseccccsccoscsusneennaenee 51
0. 3. A. C, FeBGERD 2c ccccccccccessecscseccuseenenenn 51
i. B.A. C. FORE on ccccccccccccscecsaccsessneueee 50
BE. B.A. CG FAROE . ccccceccscocsssosncscossoesncnans 50
BE. B.A. GC FBGRR .ncccccccccccccesscsscesuesunanel 53
at
TABLE OF CITATIONS (Continued).
Administrative Regulations (Continued): Page
New Jersey (Continued)
ELL LEE 53
Ne es cca ccceeesnecccccesess 53
EE oe ccccccccecccesesesecesccescces 53
EELS EEE EE 53
Nee ced ccc ceeceececocecvcceees 53
sc cc cccccccececocecoecccevecess 49
Ne ee ccc cc ecececceccsceecess 52
Neda e rede cacesececcceccececcess 52
Ne eee aces en esoeeccesvecescces 52
Nees cece ececccceccones 52
EEE SEPP CETTE EET ETTT ES 51
EEE ET PTET TTT ETTTTTTT 52
EES SISSIES SEPA SEPT PEEP 52, 53
Other Authorities:
Annotation, “Public Dump as Nuisance”,52 ALR 2d 114... 56
Municipal Refuse Disposal, 3rd ed. (Chicago: Public Admin-
istration Service, 1970) ...........0cccccceecceuueess 56
New Jersey State Sanitary Code ................... 10, 46, 47, 48
New Jersey State Solid Waste Management Plan (Newark:
Planners Associates, Inc., 1970) ..................4.. 10, 47
IN THE
Supreme Court of the United States
OcrosBeR TERM, 1977.
No. 77-404.
CITY OF PHILADELPHIA, CITY OF GLEN COVE,
LANDFILL AND DEVELOPMENT COMPANY,
MAC SANITARY LANDFILL, INC., KINSLEY’S
LANDFILL, INC, anp DELORENZO-INTERSTATE
WASTE REMOVAL CO., INC. (Now INTERSTATE
WASTE REMOVAL CO., INC.),
Appellants,
0.
STATE OF NEW JERSEY, DEPARTMENT OF EN-
VIRONMENTAL PROTECTION OF THE STATE
OF NEW JERSEY anp RICHARD J. SULLIVAN,
COMMISSIONER OF THE DEPARTMENT OF ENVIRON-
MENTAL PROTECTION OF THE STATE OF NEW JERSEY,
Appellees.
On APPEAL FROM THE SUPREME COURT OF THE
STATE OF NEw JERSEY.
BRIEF OF APPELLANTS.
OPINIONS BELOW.
The opinion of the Superior Court of New Jersey, Law
Division, declaring P. L. 1973, c. 363 (N. J. S. A. 13:1I-9,
10) unconstitutional is not reported (A6). The opinion
2 Brief of Appellants
of the Superior Court of New Jersey, Chancery Division,
in the companion case Hackensack Meadowlands v. Mun.
Landfill Auth. is reported in the official reports at 127
N. J. Super. 160 (Ch. 1974), and in the unofficial reports
at 316 A. 2d 711 (Al4). The opinion of the New Jersey
Supreme Court, reversing the trial court’s decisions in each
of the aforesaid cases, is published in the official reports as
Hackensack Meadowlands v. Mun. Landfill Auth., 68 N. J.
451 (1975), and in the unofficial reports as Hackensack
Mead. Dev. Com’n v. Municipal L. A., 348 A. 2d 505
(N. J. Sup. Ct. 1975) (A32). Said opinion is cited as
Hackensack Meadowlands v. Mun. Landfill Auth., 68 N. J.
451 (1975) in the within Brief. The opinion of the New
Jersey Supreme Court, on remand from this Court, is pub-
lished in the official reports as City of Philadelphia v. State
Dept. of Environ. Protec., 73 N. J. 562 (1977), and in the
unofficial reports as City of Philadelphia v. State, 376 A. 2d
888 (N. J. Sup. Ct. 1977) (A62). Said opinion is cited as
Philadelphia v. New Jersey, 73 N. J. 562 (1977) in the
within Brief.
Brief of Appellants 3
JURISDICTION.
This matter is brought pursuant to 28 U. S. C.
§ 1257(2) and in the alternative, 28 U. S. C. § 1257(3)
to set aside two separate judgménts of the New Jersey
Supreme Court. The first judgment, which upheld the
constitutionality of P. L. 1973, c. 363 against an attack on
Commerce Clause grounds, was rendered on November
18, 1975 and entered on the same date. This Court noted
probable jurisdiction over the appeal on April 5, 1976, 425
U. S. 910 (1976). Following oral argument, the judg-
ment of the New Jersey Supreme Court was vacated and
the case remanded “for reconsideration in light of the
Resource Conservation and Recovery Act of 1976”, Phila-
delphia v. New Jersey, — U. S. — (1977) (Slip sheet opin-
ion, pp. 1-2) (A60). The second judgment, which was
rendered and entered on June 20, 1977, upheld the con-
stitutionality of P. L. 1973, c. 363 against an attack on
Supremacy Clause grounds, and additionally “reaffirm[ed]
the views expressed in our earlier opinion, reported in 68
N. J. 451 (1975), as well as the judgment there set forth,
supplemented and modified by what is stated above”
(A74). A notice of appeal to the Supreme Court of the
United States from both judgments was thereafter filed in
the New Jersey Supreme Court on July 22, 1977 (A307).
The jurisdiction of the Supreme Court of the United
States to review this suit (a) by direct appeal is conferred
by Title 28, United States Code, Section 1257(2), and
alternatively (b) by certiorari is conferred by Title 28,
United States Code, Section 1257(3).
4 3 Brief of Appellants
STATUTE INVOLVED.
The text of P. L. 1973, c. 363, the constitutional valid-
ity of which is involved in the present suit, reads as
follows:
“The legislature finds and determines that since
the enactment of P. L. 1973, c. 39 (C 13:1I-1
et seq.) the volume of solid and liquid waste
continues to rapidly increase, that the treatment
and disposal of these wastes continues to pose an
even greater threat to the quality of the environ-
ment of New Jersey, that the available and ap-
propriate land fill sites within the State are being
diminished, that the environment continues to be
threatened by the treatment and disposal of waste
which originated or was collected outside the
State, and that the public, health, safety and wel-
fare require that the treatment and disposal
within this State of all wastes generated outside
of the State be prohibited.
“No person shall bring into this State any solid
or liquid waste which originated or was collected
outside the territorial limits of the State, except
garbage to be fed to swine in the State of New
Jersey, until the commissioner shall determine
that such action can be permitted without en-
dangering the public health, safety and welfare
and has promulgated regulations permitting and
regulating the treatment and disposal of such
waste in this State. Any person violating this
provision shall be subject to the penalty and en-
forcement provisions of the “Waste Control Act,’
P. L. 1973, c. 39.”
Said statute is published in the pocket part of Title 13,
New Jersey Statutes Annotated, Section 11-9 and 11-10 at
pp. 85-86.
Brief of Appellants 5
QUESTIONS PRESENTED.
1. Is the interstate movement of solid or liquid waste
for purposes of resource recovery, treatment or disposal
“commerce” within the meaning of the Commerce Clause?
2. Does a state statute which prohibits the entry into
the state of any solid or liquid waste (except garbage to
be fed to swine in the state) collected in another state,
discriminate against or place and undue burden upon in-
terstate commerce?
3. Is a state statute that prohibits persons from bring-
ing solid and liquid waste into a state in conflict with a
federal statute that (a) requires cooperation in the estab-
lishment of solid waste management plans for interstate
regions, and (b) provides for the issuance of federal per-
mits to owners and operators of hazardous waste treat-
ment, storage or disposal facilities?
4. In reversing an order granting a motion for sum-
mary judgment, may an appellate court constitutionally
decide the case on its merits without offering the moving
parties an opportunity to be heard on the material issues
of fact raised by their complaint prior to the final deter-
mination?
6 Brief of Appellants
STATEMENT OF THE CASE.
This case challenges the constitutionality, on Com-
merce and Supremacy Clause grounds, of a statute which
prohibits a person from bringing into New Jersey “any
solid or liquid waste which originated or was collected
outside the territorial limits of the State... .” P. L. 1973,
c. 363.
Legislative efforts to prohibit the treatment or dis-
posal in New Jersey of solid waste collected outside the
State were first initiated seven and one half years ago with
the introduction of S. 834 in the New Jersey Senate on
May 4, 1970.’ Section 2 of that bill, entitled “An Act to
prevent the treatment and disposal within this State of
solid waste collected outside this State”, provided as
follows:
“Notwithstanding the provisions of any other law
to the contrary, no solid waste collected from any lo-
cation without the territorial limits of this State shall
be treated or disposed of in any solid waste disposal
facility located within this State.”
By written memorandum dated May 8, 1970,? the
Commissioner of the New Jersey Department of Environ-
mental Protection advised the Governor that the Depart-
ment supported “. . . the concept of prohibiting the im-
portation of out-of-state garbage” into New Jersey, and
recommended that the bill be signed, if passed by the
legislature. The reason for the Department's position was
explained by the Commissioner as follows:
“... The amount of land available in landfills
is rapidly being depleted. It is in the interests of the
1. Copies of bills introduced in the New Jersey ture are
available at the New Jersey State Library in Trenton, New Jersey.
2. Said memorandum is contained in the file of the Counsel to
the Governor, maintained in the State Archives at the New Jersey
State Library, Trenton, New Jersey.
Brief of Appellants 7
State to reserve the available land for the disposal of
solid wastes originating in the State.”
No mention was made of public health or environmental
quality.
Although S. 834 passed the Senate, it did not move
in the Assembly and died at the end of the legislative ses-
sion.*
A bill almost identical to S. 834, A. 1019, was intro-
duced in the New Jersey Assembly on April 12, 1972.
Like its predecessor, A. 1019 expressly prohibited the treat-
ment or disposal in New Jersey of any solid waste collected
outside the State.
Less than one month later, on May 4, 1972, a second
bill, A. 1132, denominated the Waste Control Act, was
introduced by the same Assemblyman. Unlike A. 1019
which contemplated direct statutory prohibition, A. 1132
conferred upon the Commissioner of the Department of
Environmental Protection the power to regulate and pro-
hibit the incineration and landfill in New Jersey of solid
waste collected outside the State.* In his “statement” at-
tached to the bill, the sponsor commented:
“, . . This bill recognizes that the citizens of New
Jersey do not have the luxury of unlimited resources
and disposal sites. The bill also reflects an aware-
ness that the continuing use of New Jersey lands for
solid waste disposal facilities . . . presents an un-
3. Information with respect to bills introduced in the New
Jersey Legislature is available in the New Jersey Legislative Index.
4. Section 4 of the Act ted to the Commissioner of the
Department of Environmental Protection the specific
“power to formulate and Pa, amend and repeal orders,
rules and regulations prohibiting, conditioning and controlling
the incineration or landfill of solid waste and the treatment or
disposal of liquid wastes within the State which originated or
were collected outside the territorial limits of the State.”
N. J. S. A. 13:11-4a
4 Brief of Appellants
fortunate picture of the State, particularly in the
Hackensack Meadowlands area.”
By memorandum dated October 3, 1972,° the Presi-
dent of the New Jersey Public Utilities Commission urged
the Governor to veto A. 1132, if passed, due to the poten-
tial for retributive action:
“If New Jersey prohibits waste collected outside
the State from being dumped within the State, it may
find that reciprocal action will be taken by neighbor-
ing states wherein New Jersey disposes of its solid
wastes; e.g., Philadelphia dumps in New Jersey and
New Jersey dumps in Pennsylvania.”
A. 1019 was never adopted, but A. 1132, the Waste
Control Act, passed the legislature and was signed by the
Governor on February 21, 1973. The adverse recom-
mendation of the President of the. New Jersey Public
Utilities Commission was not accepted.
Upon signing the bill, the Governor issued a press
release ® in which he stated that the Waste Control Act
represented “. . . a significant step in controlling the daily
influx of trash and garbage from adjoining states which
threatens to engulf New Jersey's remaining sanitary landfill
sites”.
Two and one-half months later, on May 7, 1973, at a
conference on waste management sponsored by the Tri-
State Regional Planning Commission," Grant F. Walton,
Director of the Division of Environmental Quality, New
5. See footnote 2, supra.
6. Press releases issued by the Governors of New Jersey are
now collected and maintained at the New Jersey State Library,
Trenton, New Jersey.
7. Said Commission was formed by virtue of an interstate com-
between the states of Connecticut, New Jersey and New York
. G. S. A. § 16-339 et seq.; N. J. S. A. 32:22B-1 et seq.; McK
Unconsol. Laws § 830 et seq.
Brief of Appellants 9
Jersey Department of Environmental Protection, made
reference to the newly-enacted statute, saying:
“I mentioned that New Jersey had just passed
legislation to give us control over the material that
comes in from out of state. . . .”
“, . » The great temptation would be just to pro-
hibit all materials from coming into the state of New
Jersey . . . but we don't feel that is responsible or
realistic.” *
(Emphasis added )
The expressed temptation to prohibit was unquestion-
ably motivated by political and not environmental con-
cerns. In his prepared address at the Waste Management
Conference, Mr. Walton readily acknowledged the en-
vironmental integrity of sanitary landfills and their poten-
tial for reclaiming ravaged lands for public recreational
use: “The health hazard, water and air pollution and
methane gas problems commonly associated with land-
fills,” he said, “can be eliminated through the proper design
and operation of the facility . . . Properly done, aban-
doned surface mines can become parks, playgrounds and
golf courses of the future with little or no detriment to
the environment.” *
8. Presentation by Grant F. Walton published in Proceedings
of the Waste Management Con , “Partnership for Waste
Management”, Tri-State Regional Planning Commission, New York,
1973, p. 101.
9. Id., at 74.
An identical conclusion was expressed in the New Jersey Solid
Waste Management Plan, app by the United States Environ-
mental Protection Agency as the official State Plan for New Jersey:
“There is no techno reason why we cannot dispose
of solid waste with mini contvenanentel | harm.”
o co s
“It is not unusual for a properly designed and constructed
sanitary landfill to become an asset to the local area.
10 Brief of Appellants Brief of Appellants ll
Consistent with Mr. Walton’s remarks no action was | Less than a month later, on November 8, 1973, the
taken by the Commissioner of the Department of Environ- Commissioner published proposed Rules Governing the
mental Protection to prohibit the incineration or landfill Bureau of Solid Waste Management. Consistent with the
in New Jersey of solid waste collected outside the state. October 19, 1973 directive from Acting Governor
Almost 8 months passed without further visible ac- Beadleston, the proposed Rules contained a provision un-
tivity. Then on October 19, 1973, Acting Governor Alfred conditionally prohibiting the disposal of out-of-state waste
N. Beadleston published a tersely worded press release in New Jersey," N. J. A. C. 7:26-1.8 (proposed ).
saying, in part: The New Jersey Department of Environmnetal Pro-
“I have today directed C issioner Richard J. tection expressed the reasons for the proposed ban in para-
Sullivan of the Department of Environmental Protec-
tion to initiate immediately the legal process to ban
all dumping of out-of-state garbage in New Jersey.
“[If a ban is not promptly imposed], the people
of New Jersey will be forced to pay much higher costs
for waste removal because available landfill dumping
areas are filled up.” *°
9. (Cont'd. )
“The Department of Environmental Protection, under
Chapter 39, continues to enforce the Public Health Council
State Sanitary Code as it pertains to refuse disposal. That is,
the Bureau of Solid Waste Management still has Chapter VIII
of the State Sanitary Code with which to regulate and assure
nuisance-free operation of di sites in conformance with
good practice and health standards.”
New Jersey State Solid Waste Management Plan ( Newark:
Planners Associates, Inc., 1970) pp. 2, 71 and 78.
10. The text of the entire press release reads as follows:
“I have today directed Commissioner Richard J. Sullivan
of the Department of Environmental Protection to initiate im-
mediately the legal process to ban all dumping of out-of-state
garbage in New Jersey. I have taken this action after con-
sultation by telephone with Governor William T. Cahill and
with his =
This ban will be accomplished either by legislation or by
regulation issued by Commissioner Sullivan pursuant to the
State Waste Control Act, Chapter 39 of the Public Laws of
1973. The State will proceed under whichever of those two
legal methods is faster and more effective.
I have issued this directive after thorough consultation
with Commissioner Sullivan and Attorney General Kugler. The
10. (Cont'd. )
ban against the dumping of garbage from either New York or
Pennsylvania will be strictly enforced, when it becomes effec-
tive, with the full resources of the Department of Environ-
— Protection and the State Department of Law and Public
_™ Jersey cannot continue to tolerate the grave environ-
mental dangers being created by the dumping of garbage in
New J from New York or any other state. This is a
sovereign State, not a dumping ground, and this State Govern-
ment will act decisively to protect the health and welfare of its
citizens. Not only does out-of-state dumping immediate
environmen — tal ' —~ oo but over Ay ney. the
e of New Jersey wi fe) to mu i costs
bor A ang removal because available landfill dumping areas are
Comafedionsr Sullivan will proceed immediately to draft
the necessary regulation under Administrative ures
Act, which prescribes a required timetable of public notice and
public hearings. The Legislature will return Nov. 12 and, if it
a that it would be the most expeditious route, will be
asked to approve the necessary legislation, under emergency
procedures if possible.”
1l. The text of the proposed rule read as follows:
7:26-1.8 Out of State Waste
—1.8.1 No person engaged in the collection and/or haul-
age of solid waste shall i of any solid waste which
originated or was collected outside the territorial limits of
this State in any solid waste facility located within the ter-
ritorial oy i this State. =
—1.8.2 No person owning or operating a solid waste
facility located within the territorial limits of this State
ey nee Se unas 8 San See ne See Say
solid waste which originated or was collected outside the
12 Brief of Appellants
graph IV of its “Basis and Background for the Proposed
Rules of the Bureau of Solid Waste Management” (A148).
Not unexpectedly, references to public health and environ-
mental quality were virtually non-existent. Rather, the
reasons presented for the proposed administrative prohibi-
tion were: (1) to assure the availability of landfill acres
in New Jersey for solid waste generated in said State, and
(2) to stabilize the cost of solid waste collection and dis-
posal for New Jersey residents.”
Four days after the publication of the proposed Rules
of the Bureau of Solid Waste Management, on November
12, 1973, S. 2367 was introduced in the New Jersey
Senate. The stated purpose of the bill was to prohibit the
entry into New Jersey of any solid or liquid waste which
originated or was collected outside of the state, except
garbage to be fed to swine within New Jersey.”
The Department of Environmental Protection was
requested to submit its comment on the bill to the Office
of the Counsel to the Governor. The comment submitted
by the Department, was surprisingly candid:
“A. Description of Bill’s Effect—
Amends the existing Waste Control Act of 1973
by reversing the present burden of proof so that
out-of-state solid and liquid waste will be banned
unless the Department issues regulations per-
mitting same. No doubt this approach was
to the Complaint in this action ( 2).
rose sume & Se See ee eens Gs So Bee
posed Rules of the of Solid Waste M ement”, the De-
13. When S. 2367 was ori introduced, the clause “. . .
except garbage to be fed to swine inthe State of New Jersey." was
en :
14. See footnote 2, supra.
Brief of Appellants 13
taken—as opposed to an absolute ban—so as not
blatantly to traverse the commerce clause of the
Federal Constitution.”
“E. Departmental Comments—
Out-of-state waste is clearly a problem but it is
not necessarily insurmountable. The Bureau of
Solid Waste reports that the major difficulty is
that New York ‘garbage’ competes with the land-
fill sites in heavily populated areas which will
tap out within a few years, in any case. Thus,
whereas such waste comprises no more than a
small percentage of the total waste collected in
the state, it is approximately 25% of the waste
disposed in the New Jersey portion of the New
York-New Jersey Metropolitan area. This is the
truly critical region for solid waste. However,
liquid waste from New York and Pennsylvania
may even be needed by New Jersey processing
plants, so as to reduce their per unit costs. The
bill will clearly permit the Department to issue
regulations allowing same where necessary or
desirable.”
(Emphasis added )
The “major difficulty” identified by the Department
was competition for the purchase of landfill disposal space.
Environmental considerations were noticable in their
absence.
S. 2367 was passed by the Senate on November 19,
1973, and by the Assembly on November 26, 1973. While
the bill was pending before the Governor for his review,
Richard W. DeKorte, Counsel to the Governor, wrote to
14 Brief of Appellants
David Quient, Esquire, City Attorney for Appellant City
of Glen Cove (A125-126), saying:
“Also, I might add that Senate Bill No. 2367 (OCR)
would not have been introduced had the sister states
of New Jersey permitted solid wastes originating in
their states to be disposed of at or near the point of
origination.”
S. 2367 was signed by the Governor on January 2,
1974, P. L. 1973, c. 363, to become effective February 1,
1974. -
On January 21, 1974, appellants filed a complaint at-
tacking the constitutionality of said statute on federal and
state constitutional grounds (A82). Their simultaneous
application for a temporary restraining order was sup-
ported, among other documents (A105, 108, 111, 118), by
an affidavit of a licensed professional engineer (A115)
which averred that the transportation, treatment or dis-
posal of solid waste in New Jersey in accordance with
applicable Federal and New Jersey state and administra-
tive laws, rules and regulations would not pose a threat to
the health, welfare and safety of the residents of said state:
“3. The transportation in New Jersey of solid waste in
accordance with the terms and provisions of ap-
plicable Federal and New Jersey state and adminis-
trative laws, rules and regulations is not hazardous to
the public health and does not constitute a threat to
the health, welfare or safety of the residents of the
State of New Jersey.
“4. The treatment and disposal in New Jersey of
domestic or foreign solid waste in accordance with
the terms and provisions of applicable Federal and
New Jersey state and administrative laws, rules and
regulations is not hazardous to the public health and
Brief of Appellants 15
does not constitute a threat to the health, welfare or
safety of the residents of the State of New Jersey.”
Based upon its conclusion that immediate and irre-
parable harm would be suffered by appellants if temporary
injunctive relief was not granted, the Superior Court of
New Jersey, Law Division, issued an Order to Show Cause
with Temporary Restraints on January 21, 1974, which,
inter alia, restrained the State from enforcing the provi-
sions of P. L. 1973, c. 363 (A128). On the return date of
the Order to Show Cause, February 1, 1974, the trial court
issued an interlocutory injunction continuing the restraints
theretofore issued, and further specifically enjoining the
enforcement of N. J. A. C. 7:1-4, until its further order *®
15. The conclusions ae in said paragraphs 3 and 4 have
never been attacked or rebutted. Quite the contrary, they have
been confirmed by appellees. See p. 9 supra.
16. N. J. A. C. 7:1-4, a rule governing the importation of solid
and liquid waste from outside New Jersey, was adopted by the
Commissioner of the New Jersey Department of Environmental
Protection on January 18, 1974, pursuant to authority conferred by
P. L. 1973, c. 363. Said rule, which was adopted as an emergency
measure to become effective February 1, 1974, provides, in pertinent
part, as follows:
N. J. A. C. 7:1-4.2
“(a) No person shall bring into this State, or accept for
i in this State, any solid or liquid waste which origi-
nated or was collected outside the territorial limits of this State.
This Section shall not apply to:
j (1) Garbage to be fed to swine in the State of New
ersey;
(2) Any separated waste material, including newsprint,
paper, glass ond eta, that is free from putrescible materials
and not mixed with other solid or liquid waste that is intended
for a recycling or reclamation facility;
(3) Municipal solid waste to be separated, or processed
into usable secondary materials, including fuel and heat, at a
resource recovery facility provided that not less than 70
cent of the thruput of any such facility is to be separated or
processed into usable secondary materials; and
( Pesticides, hazardous, waste, chemical waste, bulk
liquid, bulk semi-liquid, which is to be treated, processed or
in a solid waste disposal facility which is registered
16 Brief of Appellants
(A169). In granting interlocutory injunctive relief, the
trial court considered among others, an affidavit of the
Deputy Assistant Administrator for Solid Waste Manage-
ment Programs, United States Environmental Protection
Agency (A131), which averred in pertinent part, as
follows:
“It has not been established to the satisfaction of
EPA that the continuation of disposal, in an environ-
mentally sound manner, of solid waste generated out-
side New Jersey poses any greater immediate health
threat to its citizens than the continued disposal of
domestically generated solid waste. Therefore, there
appears to be no immediate health threat to justify
the precipitous passage and implementation of this
statute [P. L. 1973, c. 363] and these regulations.
[N. J. A. C. 7:1-4]
. a State importation ban such as that enacted
by New Jersey is in conflict with the national policy
set forth in Section 206 of the Solid Waste Disposal
Act. . . . Moreover, the continuation of such a re-
striction would establish an unfavorable precedent
which, if followed by a substantial number of other
States, would render regional and interstate solutions
to solid waste disposal problems impossible to attain.
°° ° °°
The foregoing is not to say that appropriate standards
should not be applied in the areas of treatment and
disposal of solid wastes and of land use planning.
16. (Cont'd. )
with the Department for such treatment, processing or re-
covery, other than by disposal on or in the lands of this State.”
A verbatim copy of the entire rule as same was adopted by the
Commissioner appears at A77.
Brief of Appellants 17
We strongly favor the adoption of standards appli-
cable to domestic and imported solid wastes so that
they apply on an equal basis with out-of-state waste
subject to the same statutory and regulatory treatment
as domestic waste.
° ° °
. . . A single thrust to ban out-of-state wastes im-
pedes rather than enhances environmenta! quality.
In conclusion, it is EPA policy that no municipality or
State should take action to prevent the free flow of
waste across municipal or state boundaries provided
the transport, processing, and disposition of the waste
is in accordance with the provisions of applicable
federal and state environmental and land use laws,
guidelines, regulations, and recognized engineering
practices.”
(Emphasis added )
A plenary hearing on the merits of appellants’ complaint
was scheduled by the Court for March 25, 1974.
On February 13, 1974, appellees filed their answer to
the complaint in this matter, wherein they specifically ad-
mitted that a principal concern of the New Jersey Legis-
lature in adopting P. L. 1973, c. 363 was to preserve land-
fill acres in New Jersey for solid waste generated in said
State (A96, 174). They further admitted that there is no
qualitative difference between the solid waste which orig-
inates or is collected outside the State of New Jersey and
that which originates or is collected within the State, and
there is no difference with respect to the disposal of same
(A86, 172). |
On March 13, 1974, appellants deposed the Principal
Environmental Engineer of the Bureau of Solid Waste
Management, New Jersey Department of Environmental
Protection. During the course of said deposition, the
18 Brief of Appellants
engineer admitted that the proposed Rules of the Bureau
of Solid Waste Management, N. J. A. C. 7:26-1 et seq.
(effective July 1, 1974) (A181-182), were entirely ade-
quate to protect the health, safety and welfare of the
people of the State of New Jersey and the quality of its
environment.” He also revealed that no effort had been
made by the Department of Environmental Protection to
calculate the total acreage available for sanitary landfill
purposes in the State of New Jersey or to identify the
location and availability of facilities which presently exist
or may hereafter be developed outside the State of New
Jersey (A184, 187).
Appellants thereafter moved for summary judgment
on two federal constitutional grounds which, in their
opinion, raised solely questions of law: (a) P. L. 1973,
c. 363, on its face, discriminates against interstate com-
merce in violation of Art. 1, Sec. 8, cl. 3 of the Constitution
of the United States, and (b) the Congress of the United
States has preempted the narrow field preventing the
adoption of laws, ordinances and regulations which pro-
hibit the interstate movement of solid waste for purposes
of treatment or disposal (A188).** Appellees cross-
moved for summary judgment on the same issues, and
urged in a portion of their brief filed with the trial court
(A192-193), that summary judgment not be granted to
appellants pending a hearing on the merits:
17. Said rules were designed to prohibit dumps and to compre-
hensively regulate solid and liquid waste disposal facilities. Par-
ticular attention was directed toward controlli Leapcy which
had regularly been associated with dumps, including (a) dust (b)
odor, (c) fire, (d) insects, (e) rodents, (f) ss of papers and
other a me ti) coll g) gas jae sony ( ) surface and
ground water quality, (i) collection and haulage, (j) open burning,
and other related me sN ig aha
18. The motion did not seek summary judgment with res
to the many remaining federal constitutional questions raised by
the complaint since those questions involved genuine issues of
material fact.
Brief of Appellants 19
“At this stage of the litigation sub judice the Court
has not had an opportunity to consider any of the
relevant facts and circumstances except for affidavits
submitted in favor of and in opposition to the issuance
of ad interim restraints.
“Among those proofs which the court must consider
are: the nature and extent of the dangers to the
health, safety, welfare and environment of New
Jersey presented by the disposal of wastes in New
Jersey; the nature and extent of the solid waste crisis
in New Jersey; the rapid exhaustion of landfill life
in New Jersey; the volume of out-of-state waste being
disposed of in New Jersey; the severe limiting effects
on the future development of property which has
been used for sanitary landfill purposes; the extent of
the effect on interstate commerce.”
Pending a determination of the motions, the hearing date
was rescheduled to April 15, 1974, if necessary.
On March 25, 1974, the trial court heard oral argu-
ment on the cross-motions for summary judgment, and de-
livered its opinion (A6) granting summary judgment to
appellants and striking down P. L. 1973, c. 363 on the
ground that same discriminates against interstate com-
merce in violation of Art. 1, Sec. 8, cl. 3 of the Constitution
of the United States:
“ . . I find that the statute in question here is at-
tempting to control material that is properly the
subject of interstate commerce, that the method of
attempting is discriminatory and, therefore, uncon-
stitutional.”
On April 23, 1974, appellees filed a notice of appeal
(A198), by which they appealed from the trial court’s
20 Brief of Appellants
grant of summary judgment to appellants, but not from
the denial of their own motion for summary judgment.
More than 4 months later, on July 26, 1974, appellees
moved before the Superior Court of New Jersey, Appellate
Division, for a stay of judgment (A200). Said motion was
denied by the Court on August 14, 1974 (A204).
Following the submission of briefs by all parties, and
prior to argument in the Appellate Division, the appeal
was certified directly to the New Jersey Supreme Court
and consolidated with Hackensack Meadowlands v. Mun.
Landfill Auth.”* by order dated October 7, 1974 (A206).
The consolidated cases were argued before the New Jersey
Supreme Court on December 2, 1974.
Almost one year later, on November 18, 1975, the
New Jersey Supreme Court reversed the judgment of the
trial court on the merits, and vacated the injunctive order
which had been in effect since the inception of the litiga-
tion. Although the Court agreed that certain solid and
liquid waste is merchantable and that the transportation
and disposal of solid and liquid waste represents a legiti-
mate subject of interstate commerce, Hackensack Meadow-
lands v. Mun. Landfill Auth., 68 N. J., supra at 466-469, it
nevertheless upheld the constitutionality of P. L. 1973, c.
363 on the grounds that same represented a reasonable ex-
ercise of the State’s police power and did not place an
undue burden upon or discriminate against interstate com-
merce in violation of Art. 1, Sec. 8, cl. 3 of the Constitution
19. In Hackensack Meadowlands, suit was brought by the
Hackensack Meadowlands Development Commission and the De-
See
located within the ene priate District any solid
waste originating from or collected outside the territorial limits of
New Jersey. The Superior Court, Chancery Division, held that the
exclusion of out-of-state solid waste from deposit in landfill sites
within the state was unconstitutional as representing a discrimina-
tion against interstate commerce.
Brief of Appellants 21
of the United States. It also concluded that Congress did
not preempt the field of solid waste disposal (A32).
By its ruling, the New Jersey Supreme Court disposed,
on the mertis, of a case concededly involving substantial
disputed issues of material fact which had never been
heard by the trial court.” Since a hearing was not held,
there was no testimonv from which to make findings of
fact with respect to either (a) the legitimacy of the exer-
cise of the State’s police power and the nature and degree
of the burden imposed upon interstate commerce, or (b)
the numerous issues of material fact raised by the remain-
ing counts contained in appellants’ complaint. Curiously,
such remaining counts were never mentioned by the New
Jersey Supreme Court in its opinion.
On November 18, 1975, the same date upon which
the case was decided, the New Jersey Supreme Court
granted appellants’ emergent motion for a stay of judg-
ment and interim injunctive relief pending its further
order (A212).
In an effort to remedy the aforesaid procedural im-
propriety, appellants moved the New Jersey Supreme
Court to retain jurisdiction pending a remand of the fac-
tual issues to the trial court on an expedited basis (A216).
The trial court indicated that it would hold a plenary hear-
ing within two weeks. In the alternative, appellants
22 Brief of Appellants
sought a stay pending an application for injunctive relief
to the Supreme Court of the United States.
On December 11, 1975, the New Jersey Supreme
Court denied appellants’ motion for a stay, vacated the
emergency stay that it had previously issued, effective
December 31, 1975, and further
“Ordered that the motion for a remand to the Superior
Court, Law Division, for such further proceedings, if
any, that that court may deem appropriate is granted;
provided, however, that any relief granted by the Law
Division shall not include the issuance or continuation
of a stay; and it is further
Ordered that this Court does not retain jurisdiction.”
(A299).
Based upon this order, appellants were compelled, as
a practical matter, to dismiss with prejudice every count
in their complaint which had not been specifically resolved
by the New Jersey Supreme Court in its decision of No-
vember 18, 1975, so that there would unquestionably be
a final judgment from which a direct appeal could be taken
to the Supreme Court of the United States. In the order
pursuant to which the unresolved issues raised by appel-
lants and intervenors complaints were dismissed (A300),
the trial court
“Further Ordered, that, in light of the dismissal of the
above counts, and the decision by the New Jersey
Supreme Court upholding the constitutionality of P. L.
1973, c. 363 as representing a valid exercise of the
State’s police power which does not unreasonably
burden interstate commerce and said Court thereby
having finally determined Counts I, VII and XIX of
plaintiffs’ complaint and Count One of plaintiifs-
intervenors complaint, no further proceedings are
Brief of Appellants 23
deemed appropriate by this Court in connection with
the above captioned matter.”
On December 22, 1975, appellants filed an application
for a stay of judgment with Mr. Justice Brennan. Said
application was granted on December 31, 1975 (A302).
Thereafter, appellants duly filed a notice of appeal and a
jurisdictional statement. Probable jurisdiction was noted
on April 5, 1976, 425 U. S. 910 (1976).
On October 21, 1976, thirteen days before the sched-
uled date of oral argument, the President of the United
States signed the Resource Conservation and Recovery Act
of 1976, Pub. Law 94-580, 42 U.S. C. § 6901 et seq., which
amended comprehensively the Solid Waste Disposal Act,
42 U. S.C. § 3251 et seq.
At oral argument held on November 3, 1976, a ques-
tion was posed by Mr. Justice White with respect to the
effect of the aforesaid federal legislation on the matter
before the Court. Appellants thereafter filed a motion
seeking leave to submit a supplemental brief dealing with
the effect-of the Resource Conservation and Recovery Act
of 1976 upon the validity of P. L. 1973, c. 363. Said
motion was granted by order dated November 15, 1976
and supplemental briefs were filed simultaneously by both
On February 23, 1977, a majority of the United States
Supreme Court issued a per curiam opinion vacating the
judgment of the New Jersey Supreme Court and remand-
ing the case for reconsideration in light of the Resource
Conservation and Recovery Act of 1976, Philadelphia v.
New Jersey, — U. S. — (1977) (Slip sheet opinion, pp. 1-2)
(A59), saying, in pertinent part, as follows:
“While federal pre-emption of state statutes is, of
course, ultimately a question under the Supremacy
Clause, U. S. Const., Art. VI, cl. 2, analysis of pre-
emption issues depends primarily on statutory and
24 Brief of Appellants
not constitutional interpretation. Therefore, it is ap-
propriate that the federal pre-emption issue be re-
solved before the constitutional issue of alleged dis-
crimination against or undue burden on interstate
commerce is addressed. We think it appropriate that
we have the views of the New Jersey Supreme Court
on the question whether or to what extent the Re-
source Conservation and Recovery Act of 1977 pre-
empts the New Jersey statute.” ™
On March 15, 1977, appellees moved the New Jersey
Supreme Court for clarification or, in the alternative,
“... for a stay of any lower court injunctive order which
may be found presently to bar enforcement of Chapter
363... .” (A320).” Appellees further moved for an
expedited schedule in connection with the remand.”
By order dated April 4, 1977, the New Jersey Su-
preme Court granted appellees’ motion for acceleration,
but reserved decision on the application for a stay:
“This matter having been duly presented to the
Court, it is . . . further
Orverep that the decision as to defendants’ mo-
tion for relief is reserved at this time in view of the
accelerated schedule fixed herein; and it is further
21. Mr. Justice Powell, speaking for four members of the Court,
commenting, “We decide this case on the merits
and not burden the parties and the Supreme Court of New Jersey
by a remand which unnecessarily creates delay, expense, and un-
certainty.”
22. On the date appellees’ motion was filed, the United States
Supreme Court—and not the New J Supreme Court—still had
urisdiction of the appeal. Pursuant to Rule 59 of the Rules of the
nited States Supreme Court, jurisdiction remains vested in the
Supreme Court until the issuance of its mandate, an event occurring
25 days after the issuance of its opinion.
23. The motion for acceleration was not opposed.
Brief of Appellants 25
Orperep that this matter be set down on Tues-
day, May 10, 1977, for argument on the merits and
as to whether defendants’ motion for a stay (M-725-
76) should be granted.” (A321).
Following oral argument, the New Jersey Supreme
Court handed down its opinion on June 20, 1977, holding
that P. L. 1973, c. 363 was not pre-empted, under the
Supremacy Clause, by the Resource Conservation and Re-
covery Act of 1976 (A62). However, it stayed its judg-
ment for a period of 30 days “to afford plaintiffs full op-
portunity to apply to the Supreme Court of the United
States for a stay of judgment”. Philadelphia v. New
Jersey, 73 N. J. 562, 575 (1977) (A74).
Appellants duly filed an application for a stay of
judgment with Mr. Justice Brennan. Said application was
granted on July 18, 1977 (A305). Thereafter, appellants
filed a notice of appeal on July 22, 1977, and a jurisdic-
tional statement on September 15, 1977. Probable juris-
diction was noted on November 28, 1977, — U. S. —
(1977).
26 Brief of Appellants
SUMMARY OF ARGUMENT.
Solid and liquid waste, the service of collecting, trans-
porting, treating and disposing of same, and the sale of
landfill space for the disposal of solid and liquid waste
collected outside the state are recognized subjects of in-
terstate commerce.
A statute which prohibits the entry of a subject of
commerce, irrespective of condition or potential for harm,
is directed against commerce and may not stand.
If a threat is caused to the public health and en-
vironmental quality by solid and liquid waste, or the proc-
ess of treating, transporting and disposing of same, it is
based upon the nature of the substance being regulated
represents a legitimate exercise of the state’s police power,
or whether it really amounts to a discriminatory regulation
of interstate commerce and a direct burden thereon.
A police regulation which affects interstate commerce
must not go beyond the necessities of the particular case.
In light of the environmental integrity of properly de-
signed and operated incinerators and sanitary landfills,
there is no legitimate local public reason to prohibit entry,
treatment or disposal of solid or liquid waste which origi-
nated or was collected in another state.
New Jersey has improperly attempted to secure an
economic benefit for its residents, in contravention of the
Commerce Clause of the United States Constitution, by
adopting P. L. 1973, c. 363.
In addition, said statute must fall under the Supremacy
Clause because it stands as an obstacle to the accomplish-
ment and execution of the full purposes and objectives of
SEER ere ee ae ee = ee
Brief of Appellants 27
Congress contained in the Resource Conservation and
Recovery Act of 1976.
At any event, in light of the many genuine issues of
material fact, the New Jersey Supreme Court erred in
upholding the constitutionality of P. L. 1973 c. 363 as not
violative of the Commerce Clause absent a hearing, on
the merits, before the trial court. Appellants were thereby
denied due process of the law.
28 Brief of Appellants
ARGUMENT.
A.
The Interstate Movement of Solid or Liquid Waste for
Purposes of Resource Recovery, Treatment or Dis-
posal Is Commerce Within the Meaning of the
Commerce Clause.
In the proceedings before the New Jersey Courts,
appellees argued that solid and liquid waste are not legit-
imate subjects of interstate commerce, and therefore are
not within the purview of the Commerce Clause. This
contention was rejected below, Hackensack Meadowlands
v. Mun. Landfill Auth., 64 N. J. 451, 467 (1975), and is
wholly unsupportable in law and in fact.
Subjects of interstate commerce are determined by
“, . . practical consideration and the established course of
business.” Foster-Fountain Packing Co. v. Haydel, 278
U. S. 110 (1928); Shafer v. Farmers Grain Co., 268 U. S.
189, 198 (1925); Public Utilities Comm. v. Landon, 249
U. S. 236, 245 (1919); Rearick v. Pennsylvania, 203 U. S.
507, 523 (1906). This Court has consistently defined
commerce in broad terms to include all commercial inter-
course, including the component parts thereof, Dahnke-
Walker Co. v. Bondurant, 257 U. S. 282, 290 (1921).
Thus, the transmission of electric current, FPC v. Florida
Power & Light Co., 404 U. S. 453, 458 (1972) and radio
waves, Federal Radio Commission v. Nelson Bros. Bond
& Mortgage Co., 289 U. S. 266, 279 (1933), pastured cat-
tle ranging across a state line, Thorton v. United
States, 271 U. S. 414 (1926), the interstate movement of
petroleum, Pipe Line Cases, 234 U. S. 548, 560 (1914) and
telegraphic communications by wire, Telegraph Co. v.
Texas, 105 U. S. 460, 464 (1882), have all been treated
as commerce in a federal constitutional sense. See U. S.
v. Underwriters Assn., 322 U. S. 533, 549 (1944).
Brief of Appellants 29
Not surprisingly, the proposition that solid waste col-
lection and disposal is commerce has already been estab-
lished by the federal courts.
In United States v. Pennsylvania Refuse Removal
Assn., 242 F. Supp. 794 (E. D. Pa. 1965), certain defend-
ants were indicted and convicted for price fixing, allocat-
ing customers and rigging bids in connection with a refuse
removal business in the Greater Philadelphia area in viola-
tion of the Sherman Anti-Trust Act. That Act provides,
in pertinent part, “Every . . . conspiracy, in restraint of
trade or commerce among the several states, . . . is de-
clared to be illegal.” 15 U.S. C. § 1.
The Court held that the disposal in New Jersey of
substantial quantities of refuse collected in Pennsylvania
constituted an activity within the flow of interstate com-
merce. In responding to defendants’ argument that a
worthless commodity like trash cannot be the subject of
“trade or commerce” as those terms are used in the Sher-
man Act, the Court observed:
“That argument misses the point. Here, the real sub-
ject of ‘trade or commerce’ was not worthless debris,
but the valuable service of removing and disposing of
it. Since services are encompassed within the mean-
ing of the words ‘trade or commerce’ as used in the
Act, United States v. Nat’ Assn of Real Estate
Boards, 339 U. S. 485, 488-492, 70 S. Ct. 711, 94 L. ©
Ed. 1007 (1950), the defendants position has no
merit.”
United States v. Pennsylvania Refuse
Ass’n., 242 F. Supp., supra, at 700
(Emphasis added).
The decision of the Federal District Court was af-
firmed by the Court of Appeals for the Third Circuit which
30 Brief of Appellants
succinctly stated: “. . . refuse transported from Pennsyl-
vania to New Jersey and disposed of in the latter state . . .
was plainly a proper subject of interstate commerce.”
United States v. Pennsylvania Refuse Removal Ass‘n., 357
F. 2d 806, 808 (3 Cir. 1966). Certiorari was denied by
this Court, 384 U. S. 961 (1966).
While it is thus clear that the valuable service of col-
lecting and disposing of solid waste is an activity in inter-
state commerce, it is also clear that solid waste itself is
often a merchantable commodity.
In Hackensack Meadowlands v. Mun. Landfill Auth.,
127 N. J. Super. 160, 170 (Ch. Div. 1974), rev. other
grnds. 68 N. J. 451 (1975), the companion case to the
within matter, Judge (now Justice) Schreiber rejected
appellees argument that solid and liquid waste is neither
merchantable nor a legitimate subject of interstate com-
merce: “. . . refuse may be utilized for construction, land-
fill, recycling of paper, bottles and metal and production
of electricity.” The New Jersey Supreme Court agreed,
saying, “. . . certain types of solid waste may have legiti-
mate market value for recycling or other purposes.”
Hackensack Meadowlands v. Mun. Landfill Auth., 68 N. J.,
supra, at 467.
Appellees admit that solid waste collected outside
New Jersey has been disposed of at sanitary landfill fa-
cilities within the State (A123), and that certain com-
munities and industries in New Jersey dispose of all or a
portion of their solid waste outside the State of New
Jersey (A186-187, 326-332). It is also established that
the City of Yonkers, New York and Appellant City of
Glen Cove have heretofore purchased disposal space in
New Jersey from private solid waste disposal public
utilities, Hackensack Meadowlands v. Mun. Landfill
Auth., 68 N. J., supra, at 476 (A55, 347). In addition
More recently, see Mascaro & Sons, Inc. vo. O'Hara, Inc.,
— F. nod (3 Ce 1977), 1977-2 Trade Cases, { 61,727.
Brief of Appellants 31
automobile hulks, being a form of bulky waste,
N. J. A. C. 7:26-1.43, regularly move in interstate com-
merce, Alexandria Scrap Corporation v. Hughes, 426 U. S.
794 (1976). Indeed, the House Report on the Re-
source Conservation and Recovery Act of 1976 candidly
asserts “that most of our discarded materials have at some
time entered the flow of interstate commerce.”* It is
part of the established course of business.
Governed by the aforesaid authorities, the interstate
movement of solid waste for purposes of resource recovery,
treatment or disposal unquestionably involves commercial
intercourse.
Appellants’ solid waste collection and disposal com-
panies are New Jersey public utility corporations subject
to regulatory control by the Board of Public Utility Com-
missioners, N. J. S. A. 48:2-13, N. J. S. A. 48:13A-1 et seq.
Although a major component of their business activity is
service, see N. J. S. A. 48:13A-2, they may also engage in
the sale of methane gas, steam or other power-generating
sources and recovered materials such as paper, glass,
copper, steel, tin and aluminum (A351, 360).
In a very real sense, appellant solid waste disposal
companies which operate sanitary landfills derive their
principal business income from selling space for disposal
purposes rather than from providing a service. The cost
of operating sanitary landfills in an environmentally sound .
manner is enormous (A350, 366). Interestingly, the New
Jersey Legislature, in the Solid Waste Management Act,
N. J. S. A. 13:1E-1 et seq. felt compelled to observe:
“The Legislature recognizes that solid waste and re-
cycling facilities will be financed through long term
borrowing which requires the negotiation of long
term contracts with municipalities and other solid
25. House Report No. 94-1491 accompanying HR 14496
(Comm. on Interstate and Foreign Commerce), at 9.
32 Brief of Appellants
waste collectors to guarantee the flow of solid waste to
such facilities.”
N. J. S. A. 13: 1E-2c
If prevented from cbtaining sufficient minimum
quantities of solid waste, the business of Kinsley’s and of
other appellant sanitary landfill owners will be greatly
diminished or destroyed (A348-349, 366-367, 370, 373),
Foster-F ountain Packing Co. v. Haydel, 278 U. S. supra, at
8. This result would be particularly harsh and inequitable
in the present case since expenditures for environmental
controls approximating $500,000 have already been made
at appellant Kinslev’s Landfill, Inc. sanitary landfill site
upon the direction of the Department of Environmental
Protection (A366). The improvements would not have
been made but for a long term contract with the City of
Philadelphia (A366).
Appellant Landfill and Development Company is in
a similar position (A350-351, 370). Unless P. L. 1973, c.
363 is struck down, it will lose approximately $700,000 in
annual gross income (A369).
Moreover, if the interstate movement of solid waste
for purposes of resource recovery, treatment or disposal is
not commerce, then individual states can adopt repressive
laws with impunity, thereby materially affecting channels
of interstate commerce in solid waste.
Since probable jurisdiction was noted by this Court on
April 5, 1976, a statute was passed by the Louisiana Legis-
lature to proscribe the transportation of
“any waste material which originated or was col-
lected outside the territorial limits of the state into
Louisiana with the intent to bury, store or otherwise
dispose of suci» wastes in Louisiana until the office
of health services and environmental quality of the
Brief of Appellants 33
Department of Health and Humau Resources has de-
termined that such action can be permitted without
endangering the health, safety and welfare of any
member of the public or animal life.”
Prior to the adoption of said statute, seven states had
adopted laws which, to varying degrees, prohibited the
disposal of solid waste collected in another state.** Three
other states imposed various regulatory limitations.”
If each state was free to pass such laws, commerce in
solid waste collection and disposal services could be
brought to a halt at state lines.
P. L. 1973, c. 363, on Its Face Discriminates Against and
Directly Burdens Interstate Commerce.
The plain and unambiguous language of P. L. 1973,
c. 363, entitled: —
“An Act to prohibit any person from bringing into
this State any solid and liquid waste which originated
or was collected outside the State . . . ,”
reveals that its sole intent and purpose is to impose an
immediate, absolute and complete ban upon the movement
into or through New Jersey of any solid or liquid waste
which originated or was collected outside the State. Treat- -
ment of liquid waste, processing of solid waste, and dis-
26. Maine, Massachusetts, New Hampshire, New Jersey, Penn-
sylvania, Rhode Island and Vermont.
On December 30, 1974, the Commonwealth of Pennsylvania
cnet Sibee were oe, © St eee
of solid —s . any location in ae ae that does
not accept waste from Pennsylvania. is legislation was
surel q i the
y prom by. ‘Ne ye against, the pro-
34 Brief of Appellants
posal or interstate movement of all waste collected outside
New Jersey is equally prohibited. Conversely, no attempt
whatsoever has been made in the statute to control, regu-
late or prohibit the movement, treatment, processing or
disposal of solid or liquid waste which originates or is col-
lected within the State of New Jeasey.
Activities in interstate commerce are not, by that fact
alone, immune from reasonable regulations adopted by a
state or local government pursuant to the exercise of its
reserved police power. U.S. Const., Amend. 10. Absent
controlling federal legislation, the Commerce Clause does
not deprive the states of the power to regulate matters of
legitimate local concern in areas where uniformity of regu-
lation is not necessary, even when interstate commerce is,
to some measure, regulated or affected thereby, Southern
Pacific Co. v. Arizona, 325 U. S. 761, 767 (1945).
However, in exercising its power, a state must be rea-
sonable in its requirements, promote its objectives without
discrimination, and not go beyond the necessities of the
particular case, Plumley v. Massachusetts, 155 U. S. 461,
471 (1894), Schollenberger v. Pennsylvania, 131 U. S. 1
(1898), Savage v. Jones, 225 U.-S. 501, 525 (1912),
Bourjois, Inc. v. Chapman, 301 U. S. 183, 187 (1937),
Dean Milk Co. v. Madison, 340 U. 8. 349, 354 (1951),
Great A & P Tea Co. v. Cottrell, 424 U. S. 366 (1976).
As stated by Mr. Justice Clark in Cities Service Co. v.
Peerless Co., 340 U. S. 179, 186-187 (1950):
“The only requirements consistently recognized have
been that the regulation not discriminate against or
place an embargo on interstate commerce, that it safe-
guard an obvious state interest and that the local in-
terest at stake outweigh whatever national interest
there might be in the prevention of the state re-
strictions.”
\)
Brief of Appellants 35
See also Pike v. Bruce Church Inc., 397 U. S. 137, 142
(1970); Hunt v. Washington State Apple Advertising
Commission, — U. 8, — (1977).
In approaching Commerce Clause questions, this
Court has consistently determined for itself whether a
regulation represents a valid exercise of the State’s police
power, or whether it is really and substantially a regula-
tion of interstate commerce, Asbell v. Kansas, 209 U. S.
251, 256 (1908). Mr. Justice Reed emphasized the Court's
responsibility in this area in Best & Co. v. Maxwell, 311
U. S. 454, 455-456 (1940) where he commented:
“The commerce clause forbids discrimination,
whether forthright or ingenious. In each case it is
our duty to determine whether the statute under at-
tack, whatever its name may be, will in its: practical
operation work discrimination against interstate com-
merce.”
In Dean Milk Co. v. Madison, 340 U. S, 349, 354
(1951), this Court struck down an ordinance of the City
of Madison, Wisconsin, which prohibited the sale of milk
as pasteurized unless it was processed and bottled at an
approved pasteurization plant within a five mile radius
from the central square of Madison. In response to
Madison’s argument that the ordinance was aimed simply
at protecting the health of the community, Mr. Justice.
Clark wisely noted that to sustain an ordinance simply be-
cause it denominates itself
“~~ . a health measure, would mean that the Com-
merce Clause of itself imposes no limitations on state
action other than those laid down by the Due Process
Clause, save for the rare instance where a state art-
lessly discloses an avowed purpose to discriminate
against interstate goods.”
36 Brief of Appellants
The aforesaid principles are not new. They were
applied in Railroad Co. v. Husen, 95 U. S. 465 (1877)
where this Court struck down a Missouri statute which
prohibited the entry of Texas, Mexican or Indian cattle
into any county in the State between the first day of March
and the first day of December of each year.
Speaking for a unanimous Court, Mr. Justice Strong
announced the general rule governing sanitary and health
laws as follows:
“While we unhesitatingly admit that a State may pass
sanitary laws, and laws for the protection of life,
liberty, health, or property within its borders; while
it may prevent persons and animals suffering under
contagious or infectious diseases, or convicts, &c.,
from entering the State; while for the purpose of self-
protection it may establish quarantine, and reasonable
inspection laws, it may not interfere with transporta-
tion into or through the State, beyond what is abso-
lutely necessary for its self-protection.
Railroad Co. v. Husen, 95 U. S. supra, at 472.
Applying this rule to the statute of Missouri, Mr. Jus-
tice Strong found a clear attempt to regulate interstate
commerce:
“It is not a quarantine law. It is not an inspection
law. It says to all natural persons and to all trans-
portation companies, ‘You shall not bring into the
State any Texas cattle or any Mexican cattle or Indian
cattle, between March 1 and December | in any year,
no matter whether they are free from disease or not,
no matter whether they may do an injury to the in-
habitants of the State or not; and if you do bring
them in even for the purpose of carrying them
through the State without unloading them, you shall
be subject to extraordinary liabilities.’ Such a statute,
Brief of Appellants 37
we do not doubt, it is beyond the power of a State to
enact. To hold otherwise would be to ignore one of
the leading objects which the Constitution of the
United States was designed to secure.”
Railroad Co. v. Husen, 95 U. S. supra, at 473.
In Plumley v. Massachusetts, 155 U. S., supra, at 469,
Mr. Justice Harlan had occasion to discuss the holding in
the Railroad Co. case. He noted that the object and effect
of said statute “. . . was to meet at the borders of Missouri
a large and common subject of commerce and prohibit its
crossing the state line during the larger part of each year.
...” (Emphasis added. )
A statute enacted to prevent the sale of unwholesome
meat was considered and struck down in Brimmer v.
Rebman, 138 U. S. 78 (1891). The statute declared it to
be unlawful to offer for sale within Virginia any beef, veal
or mutton, from animals slaughtered one hundred miles or
more from the place at which it is offered for sale unless
previously inspected and approved by local inspectors.
Inspection was not required of fresh meats from animals
slaughtered within one hundred miles from place of sale.
Rejecting the state’s contention that the statute repre-
sented a valid police regulation designed to protect the
public health, Mr. Justice Harlan stated:
“Whether there shall be inspection or no, . . . is made
to depend entirely upon the place where the animals
from which the beef, veal or mutton is taken, were
slaughtered . . . . [A state] may not, under the guise
of exerting its police powers, or of enacting inspection
laws, make discriminations against the products and
industries of some of the States in favor of the prod-
ucts and industries of its own or of other States.
Brimmer v. Rebmen, 138 U. S., supra, at 82.
38 Brief of Appellants
See also Minnesota v. Barber, 136 U. S. 313 (1890) and
Scott v. Donald, 165 U. S. 58 (1897).
In Rasmussen v. Idaho, 181 U. S. 198 (1901), this
Court upheld an Idaho statute which empowered the
Governor of Idaho to regulate or prohibit the importation
into the state of sheep from localities outside the state
where scab or other infectious disease has become epi-
demic. Speaking for a unanimous Court, Mr. Justice
Brewer distinguished the Railroad Co. case upon which
the plaintiff in error in Rasmussen largely relied:
“It will be perceived that the act in Railroad Co. v.
Husen was an absolute prohibition operative during
eight months of the year. It was an act continuous
in its force; provided for no inspection, and was
predicated on the assumption that the State had the
right to exclude for two-thirds of each year the intro-
duction of all those kinds of cattle, sick or well, and
whether likely to distribute disease or not.
In the case before us the statute makes no ab-
solute prohibition of the introduction of sheep, but
authorizes the Governor to investigate the condition
of sheep in any locality, and, if found to be subject
to scab or any epidemic disease liable to be com-
municated to other sheep, to make such restriction on
their introduction into the State as shall seem to him,
after conference with the State sheep inspector, to be
necessary.”
Rasmussen v. Idaho, 181 U. S. supra. at 201
(emphasis added )
A similar quarantine act was considered in Oreg.-
Washington Co. v. Washington, 270 U. S. 87 (1926). The
Washington Director of Agriculture, with the approval cf
the Governor, forbade the importation into the state of
alfalfa hay or meal (except in sealed containers) from
Brief of Appellants 39
designated counties outside the state in which, upon in-
spection, a weevil injurious to the alfalfa plant was found.
After reciting the general rule that, absent arbitrariness or
discriminatory motive, a state may prevent the introduc-
tion within its borders of human beings, animals or plants
which may cause disease, injury or destruction to the
State’s inhabitants and resources, this Court upheld the
statute commenting:
“We think that here the investigation required by the
Washington law and the investigation actually made
into the existence of this pest and its geographical
location makes the law a real quarantine law, and not
a mere inhibition aga‘nst importation of alfalfa from
a large part of the country without regard to the con-
ditions which might make its importation dangerous.”
Oreg.-Washington Co. v. Washington 270
U. S., supra, at 96.
The New Jersey statute in question imposes an un-
limited prohibition without regard to condition. It is an
embargo. There is no provision for inspection or for any
other deliberative process prior to exclusion. The statute
is erroneously predicated on the assumption that a state
has the right to exclude the introduction of all kinds of
solid and liquid waste, whether likely to impair public
health and environmental quality or not. Rasmussen v.
Idaho, 181 U. S., supra, at 201.
As in the Railroad Co. case, P. L. 1973, c. 363, is
neither a quarantine law nor an inspection law; and like
the statute in that case, P. L. 1973, c. 363 says to all nat-
ural persons and to all transportation companies: “You
shall not bring into the State solid or liquid waste of any
nature or description, for any purpose whatsoever, no mat-
ter whether it does an injury to the inhabitants of the State
40 , Brief of Appellants
or not; no matter whether it does an injury to the quality
of the environment or not; and if you do bring it in even
for the purpose of carrying it through the State without
unloading it you shall be subject to extraordinary lia-
bilities.”
The fact that Railroad Co. v. Husen dealt with cattle
and not with solid waste is neither material nor dis-
tinguishable. The principle is identical in each case; once
an activity is legitimately in interstate commerce there
can be no discrimination. Best & Co. v. Maxwell, 311
U. S. 454 (1940); Head v. New Mexico Board, 374 U. S.
424, 429 (1963).
A proscription against discrimination was similarly
noted in the leading environmental case Huron Cement
Co. v. Detroit, 362 U.S. 440 (1960), where an action was
instituted by a corporation engaged in operating federally
licensed steam vessels in interstate commerce to enjoin the
enforcement of certain provisions of the Smoke Abatement
Code of the City of Detroit. Finding that the ordinance
applied equally to all ships and did not destroy the right
of free passage, this Court held that the ordinance was a
valid exercise of the state’s police power:
“.., state regulation based on the police power, which
does not discriminate against interstate commerce or
operate to disrupt its required uniformity, may con-
stitutionally stand.
“It has not been suggested that the local ordinance,
applicable alike to any person, firm or corporation
within the city, discriminates against interstate com-
merce as such. It és a regulation of general applica-
tion, designed to better the health and welfare of the
community ....” Huron Cement Co. v. Detroit, 362
U. S., supra, at 448 (Citations omitted, emphasis
added. )
Brief of Appellants 41
Although a smoke abatement ordinance enacted to
promote the health and welfare of a city’s inhabitants will
generally support an exercise of the police power, the
power to adopt such ordinances is not unlimited.
“The basic limitations upon local legislative power in
this area are clear enough. The controlling princi-
ples have been reiterated over the years in a host of
this Court’s decisions. Evenhanded local regulation
to effectuate a legitimate local public interest is valid
unless preempted by federal action ... , or unduly
burdensome on maritime activities or interstate com-
merce...."
Huron Cement Co. v. Detroit, 362 U.S. supra,
at 443 (Citations omitted, emphasis
added ).
The Court in Huron stressed the fact that the local
ordinance there in question was applicable alike to all
persons, firms and corporations. Had the ordinance been
discriminatory, it would have been struck down.
Appellants respectfully contend that P. L. 1973, c.
363, while outwardly cloaked “in the currently fashion-
able garb of environmental protection”, Douglas v. Sea-
coast Products, Inc., 431 U. S$. 265, 285, n. 21 (1977), is
actually no more than a legislative effort to suppress com-
petition and stabilize the cost of solid waste disposal for
New Jersey residents, H. P. Hood & Sons, Inc. v. DuMond,
336 U. S. 525, 538 (1949).
The New Jersey Department of Environmental Pro-
tection explained the process this way:
“In an effort to slow down the landfill dépletion
process, the Department of Environmental Protection,
in conjunction with the Hackensack Meadowlands
Development Commission, recently instituted a ban
42 Brief of Appellants
on the disposal of out-of-state waste within the Hack-
ensack Meadowlands Development Commission dis-
trict. The Hackensack Meadowlands ban caused
collection of out-of-state waste to travel into the su-
burban regions of the state, thus threatening the life
expectancy of those disposal sites. This increased the
cost of solid waste collection and disposal for New
Jersey's residents, for when nearby disposal sites are
depleted, collectors must haul their waste longer and
longer distances into the State’s suburban and rural
areas.” (A123) (emphasis added )*
An identical sentiment was expressed by Acting Gov-
ernor Beadleston who, on October 19, 1973, directed the
Commissioner of the Department of Environmental Pro-
tection to initiate a ban upon the disposal in New Jersey
of out-of-state garbage: “. . . the people of New Jersey,”
he said, “will be forced to pay much higher costs for waste
removal because available landfill dumping areas are filled
up”, See p. 11, n. 10 supra. The record demonstrates over-
whelmingly that the motivation for imposing the embargo
was economic and not environmental.
Appellees admit that in enacting P. L. 1973, c. 363, a
principal concern of the New Jersey Legislature was to
preserve landfill areas in New Jersey for solid waste gen-
erated in the State (A96, 174). This it cannot constitu-
tionally do.
28. In Mascaro & Sons, Inc. v. O'Hara, Inc., — F. 2d — (3
Cir. 1977), 1977-2 Trade Cases, { 61,727, decided less than two
months ago, the Third Circuit commented to the same effect:
The haulers dump the refuse at a landfill location and pay
the operator for the privilege. The amounts paid for trans-
tion to the site and for landfill use are significant costs
which affect the prices charged customers. In order to keep
cupenene tom, bans prefer to utilize landfills as close to the
customers as is feasible.
Brief of Appellants 43
In Penna. v. West Virginia, 262 U. S. 553, 597-598
(1923), a West Virginia statute prohibited the exporta-
tion of its natural gas unless an adequate supply was avail-
able to meet the needs of its citizens. Although the
Supreme Court of the United States recognized that the
gas supply was a natural product of the State and would
be insufficient to meet the needs of the State if exporta-
tion was allowed, the statute had to fall because it repre-
sented “an attempt to regulate the interstate business to
the advantage of the local customers.”
Similarly, in Oklahoma v. Kansas Nat. Gas Co., 221
U. S. 229, 255 (1911), this Court declared unconstitutional
an Oklahoma “conservation” statute preventing a pipeline
company from transporting natural gas outside the state:
“If the States have such power a singular situation
might result. Pennsylvania might keep its coal, the
Northwest its timber, the mining states their minerals.
And why may not the products of the field be brought
within the principal? Thus, enlarged, or without
that enlargement, its influence on interstate com-
merce need not be pointed out. To what consequence
does such power tend? If one state has it, all States
have it; embargo may be retaliated by embargo and
commerce will be halted at state lines. And yet we
have said that ‘in matters of foreign and interstate
commerce there are no state lines’. In such com-
merce, instead of the States, a new power appears and
a new welfare, a welfare which transcends that of
any State. But rather let us say it is constituted of
the welfare of all of the States and that of each State
is made greater by a division of its resources, natural
and created, with every State, and those of every other
State with it. This was the purpose, as it is the result,
of the interstate commerce clause of the Constitution
of the United States. If there is to be a turning back-
44 Brief of Appellants
ward it must be done by the authority of another
instrumentality than a court.” (Emphasis added)
See als» City of Altus, Oklahoma v. Carr, 255 F. Supp.
828 (W. D. Tex. 1966), aff'd 385 U. S. 35 (1966).
The potential for retaliation is not a mere theoretical
possibility in the present case. The Commonwealth of
Pennsylvania has already enacted legislation to prevent
the disposal in that Commonwealth of solid waste col-
lected from any location in another state that does not
accept solid waste from Pennsylvania. 35 P. S. § 6007 et
seq. The legislation was intended to be retaliatory against
New Jersey in operation and effect (A374).
Exclusionary and retaliatory legislation is destructive
to the achievement of national goals. Such enactment
places the well-being of a few over the well-being of the
whole, and can lead to the kind of isolationism that the
commerce clause was intended to prevent.
Mr. Justice Cardozo expressed the principal elo-
quently in Baldwin v. G. A. F. Seelig, 294 U. S. 511, 523
(1935). In declaring unconstitutional a statute which
prohibited the sale in New York of milk purchased in an-
other state at a price lower than the minimum prescribed
by the New York statute, he observed:
“The Constitution was framed under the dominion
of a political philosophy less parochial in range. It
was framed upon the theory that the peoples of the
several states must sink or swim together, and that
in the long run prosperity and salvation are in union
and not division.”
A statute which facially prohibits entry without regard
to condition is “. . . hostile in conception as well as burden-
some in result”. Polar Ice Cream & Creamery Co. v.
Andrews, 375 U. S. 361, 377 (1964). It represents dis-
Brief of Appellants 45
crimination of the most basic kind, and is devoid of any
legitimate local concern.
But even if, for the sake of argument, a legitimate
local concern is found, that does not end the inquiry:
“When discrimination against commerce . . . is demon-
strated” said Mr. Chief Justice Burger less than 7 months
ago, “the burden falls on the State to justify it both in
terms of local benefits flowing from the statute and the
unavailability of nondiscriminatory alternatives, adequate
to preserve the local interests at stake.” Hunt v. Wash-
ington State Apple Advertising Commission, — U. S. —
(1977), slip opinion at 18.
Appellees have argued that a prohibition against out-
of-state solid waste will reduce volume and thereby pre-
serve further acreage from use as disposal sites. There are
two inherent fallacies with this reasoning. Firstly, sani-
tary landfills can be operated without any “reasonable
probability of adverse effects on health or the environ-
ment from disposal of solid waste at such facility.” 42
U. S. C. § 6944. Secondly, any prospective use of land is
subject to objection on the same grounds. For example,
the erection and operation of a manufacturing plant or a
school can be said to “forever ruin virgin land” and, if not
properly regulated, to cause a threat to public health or
environmental quality.
For the same reasons, appellees cannot justify the
statute on account of the unavailability of nondiscrimi-
natory alternatives. Less than nine months before P. L.
1973, c. 363 was introduced in the New Jersey Senate, the
Waste Control Act was signed by the Governor, N. J. S. A.
13:111 et seq. Pursuant to Section 4 of that Act, the Com-
missioner of the New Jersey Department of Environmental
Protection was granted express power to regulate and pro-
hibit the incineration or landfill in New Jersey of solid
46 Brief of Appellants
waste which originated or was collected outside the State,
N. J. S. A. 13:11-4a. Obviously, before Acting Governor
Beadleston directed to the contrary, the Commissioner
did not feel that a wholesale ban on interstate solid waste
disposal was either necessary or desirable, see pp. 8-13
supra. More importantly, under the Waste Control Act,
the Commissioner could impose a ban if other nondis-
criminatory alternatives proved unsuccessful to protect
the legitimate local interest of the State.
New Jersey has traditionally provided comprehensive
regulatory controls to protect the health of its citizens and
the quality of its environment. In 1958, the New Jersey
Health Council adopted Chapter VIII-Refuse Disposal! as
part of the State Sanitary Code pursuant to authority
conferred by N. J. S. A. 26:1A-7. Chapter VIII prohibited
the operation of dumps and authorized the disposal of
solid waste only through use of
“(a) sanitary landfills established, con-
ducted, operated and maintained in accordance
with standards set forth in Regulation 4, 5, and 6
of this Chapter
OR
(b) Incinerators constructed, operated and
maintained in accordance with Code or Regula-
tion of the New Jersey Air Pollution Control
Commission.
(c) Other methods of disposal as may be
approved by the State Department of Health.”
The regulations collected in Chapter VIII-Refuse Dis-
posal, were adopted, consistently with the mandate in
N. J. S. A. 26:1A-7, “. . . to preserve and improve the
public health in this State.” *
29. New Jersey State Sanitary Code (Trenton: New Jersey
State Department of Health, rev. September 1963) p. 1.
Brief of Appellants 47
On April 13, 1970, the Public Health Council adopted
a revision of Chapter VIII of the State Sanitary Code which
substantially expanded the previously-existing regulations.
The authorized methods of disposal were not changed or
altered in any way, but additional operational require-
ments were imposed to further protect the public health.
On April 22, 1970, the functions, powers and duties of the
Public Health Council were transferred to and vested in
the Division of Environmental Quality and the Commis-
sioner of the Department of Environmental Protection,
N. J. S. A. 13:1D-7a. Chapter VIII of the State Sanitary
Code was not repealed by the administrative reorganiza-
tion; it remained in full force and effect, under the juris-
diction of the Department of Environmental Protection,
N. J. S. A. 13:1D-15, 13: 1E-66.
Approximately three months later, on July 31, 1970,
the New Jersey Solid Waste Management Plan was pub-
lished. Said Plan, approved by the United States Environ-
mental Protection Agency as the official State Plan for New
Jersey, reported with candor:
“There is no technological reason why we
cannot dispose of solid waste with minimal en-
vironmental harm.
© °° oO
“The Department of Environmental Protec-
tion, under Chapter 39, continues to enforce the
Public Health Council State Sanitary Code as it
pertains to refuse disposal. That is, the Bureau
of Solid Waste Management still has Chapter
VIII of the State Sanitary Code with which to
regulate and assure nuisance-free operation of
disposal sites in conformance with good practice
and health standards.” *°
30. New Jersey State Solid Waste a Plan ( Newark:
Planners Associates, Inc., 1970) at pp. 2 and
48 Brief of Appellants
Chapter VIII of the State Sanitary Code continued in
effect until July 1, 1974, when it was superseded by the
Rules of the Bureau of Solid Waste Management,
N. J. A. C. 7:26-1 et seq. In adopting said Rules, the
Commissioner of the Department of Environmental Pro-
tection commented: “No rule was altered in such a way as
to provide less protection to the public health, safety or
welfare than provided by the Chapter VIII regulations.”
The principal environmental engineer of the Bureau
of Solid Waste management was more direct in his assess-
ment of the Rules. During a deposition conducted on
March 13, 1974, he grudgingly admitted that the Rules as
then proposed were entirely adequate to protect the health,
safety and welfare of the people of New Jersey and the
quality of its environment (A181-182).
The Rules, which are extremely comprehensive in
nature, provide that the exclusive methods by which solid
waste may be disposed in New Jersey are through use of:
“a. Sanitary landfills established, operated
and maintained in accordance with the regula-
tions set forth in this subchapter.
“b. Incinerators constructed, operated and
maintained in accordance with Regulations of the
New Jersey State Department of Environmental
Protection promulgated under authority of the
Air Pollution Control Act 1954 and regulations
set forth in this subchapter.
“c. Transfer station, composting facility, re-
source recovery or other processing facility, con-
structed and operated in accordance with regu-
lations set forth in this subchapter.”
N. J. A. C, 7:26-2.1.2
Brief of Appellants 49
Dumps are expressly prohibited. N. J. A. C. 7:26-2.1.1.
No person may engage in the disposal of solid waste
in New Jersey without having first obtained approval of a
registration statement and engineering design from the
Department of Environmental Protection. N. J. A. C.
7;26-2.2.2; 7:26-2.2.3. Designs for sanitary landfills, in-
cinerators, and other methods of disposal must be prepared
by a New Jersey licensed professional engineer and sub-
mitted to the Bureau of Solid Waste Management for its
review, N. J. A. C. 7:26-2.4. In addition to other require-
ments, each engineering design for a sanitary landfill must
include (a) a designation of the property or portion thereof
for which approval is being sought; (b) contours and pro-
posed final elevations; (c) proposed sequence of develop-
ment; (d) soil borings; (e) soil classifications; (f) soil
profile and aquifer information; (g) geological and ground
water data; (h) identification of registered wells and pub-
lic buildings within a one-half mile radius; (i) surface and
subsurface drains; (j) leachate collection system, if ap-
plicable; (k) profile views for excavation, and grades and
elevations for dikes, berms or other pollution protection
devices or techniques; (1) proposed landscaping, beauti-
fication and screening techniques; (m) gas venting and
monitoring system; (n) ground water monitoring wells;
and (0) estimated capacity. N. J. A. C. 7:26-2.12.2.
Special emphasis is placed upon the control and elim-
ination of ground and surface water pollution at sanitary
landfill sites. To accomplish this objective N. J. A. C.
7:26-2.5.4 provides, in pertinent part:
“No new sanitary landfill shall be conducted,
nor shall an existing landfill continue to be con-
ducted where the solid waste, in whole or in part,
or the leachate produced as a result of the sanitary
landfill, impairs the quality of the surface or
50 Brief of Appellants
ground waters of this state to a degree that would
degrade the quality of either the surface or
ground waters of this state beyond the classifica-
tion established by the Department for the surface
water in question ox the potable water standard
established by the Department in the case of
ground water.”
In addition, N. J. A. C. 7:26-2.5.22 requires the in-
stallation of ground water monitoring systems as a condi-
tion precedent to the operation of a new sanitary landfill
or the expansion of an existing facility:
“No new solid waste facility shall begin op-
erations without first installing a ground water
monitoring system constructed and located in
accordance with instructions furnished by the
Department. Further, no new facility shall be-
gin operations prior to obtaining ground water
samples, and analyses thereof, for the purpose of
establishing baseline information.”
The Department of Environmental Protection can re-
quire the installation of an impermeable liner (A238),
where necessary, to create a barrier between the deposited
solid waste and exposed surfaces that would otherwise be
unsatisfactory for land disposal purposes.
Gas venting systems must be installed at every exist-
ing sanitary landfill site, and at every new facility, as a
condition of continued operation. In this connection,
N. J. A. C. 7:26-2.5.21 provides:
“New facilities shall install the gas venting
and monitoring systems indicated on the ap-
proved engineering design prior to operating. A
Brief of Appellants 51
phase-in of the system is permitted if so indicated
on the approved engineering design. Existing
facilities shall be required to design, obtain de-
partmental approval of the design, and implement
a gas venting and monitoring system when so
ordered by the Department as a result of the de-
tection of landfill gases beyond the perimeter of
the designated fill area. Detection may be by
ground probing or vegetation damege. The re-
covery of landfill gases for use es a fuel is not
prohibited by this subsection. in no case shall
the accumulation of combuscible gases in excess
of their lower explosive limits within confined
structures on or adjacent to the facility be per-
mitted.”
In addition to the aforesaid, a sanitary landfill must
effectively control scattering of papers and other light-
weight material, N. J. A. C. 7:26-2.5.6, dust, N. J. A. C.
7:26-2.5.7, odor, N. J. A. C. 7:26-2.5.8, and insects and
rodents, N. J. A. C. 7:26-2.5.12. Other stringent and care-
fully conceived operational requirements, too numerous
to mention, are also imposed by the Rules.
The situation with respect to the regulation of in-
cineration is much the same. The construction and op-
eration of incinerators for solid waste disposal is governed
by both the Rules of the Bureau of Solid Waste Manage-
ment, and by the Rules of the Bureau of Air Pollution
Control, N. J. A. C. 7:27-11.1 et seq.
No person may construct a new incinerator, or use a
new or altered incinerator, unless a “Permit to Construct,
Install or Alter Control Apparatus or Equipment” and a
“Certificate to Operate Control Apparatus or Equipment”
have first been obtained from the Bureau of Air Pollution
52 Brief of Appellants
Control, Department of Environmental Protection, N. J.
A. C. 7:27-11.4. In order to assure that incinerators and
control equipment will not pollute the air,
“The Department may require such details
regarding the equipment or control apparatus as
it considers necessary to determine that the equip-
ment or control apparatus is designed to operate
without causing a violation of any provisions of
the New Jersey Air Pollution Control Act or any
provisions of codes, rules or regulations promul-
gated hereunder. . . .”
N. J. A. C. 7:27-8.4(b)
The Rules of the Bureau of Air Pouultion Control con-
tain specific emission standards with respect to particles
emission, smoke emission, unburned waste or ash emis-
sion, and odor emission, N. J. A. C. 7:27-11.4. Most im-
portantly, an incinerator cannot be constructed or used
unless it is “. . . effective for the purpose of air pollution
control”, N. J. A. C. 7:27-11.2. See also N. J. A. C. 7:27-
5.2(a) being a regulation of general applicability which
prohibits the emission into the outdoor atmosphere of sub-
stances in quantities which shall result in air pollution.
Open burning is specifically prohibited, N. J. A. C. 7:27-
2.3.
An incinerator cannot be used for solid waste disposal
purposes until an engineering design prepared by a New
Jersey licensed professional engineer has been filed with
and approved by the Bureau of Solid Waste Management.
Such design must contain information with respect to (a)
rated capacity, (b) current and anticipated daily loadings,
(c) unloading and storage facilities, (d) emergency stor
age facilities, (e) alternate unloading locations, (f) rodent
Brief of Appellants 53
and odor control techniques, (g) daily residue tonnage,
(h) disposal location residue, and (i) accompanying re-
cycling or reclamation activity, if any. N. J. A. C. 7:26-
2.12.3.
The Rules regulate the operation as well as the design
of incinerator facilities. Areas where putrescible waste is
stored or deposited must be cleaned within each twenty-
four hour period, and no such waste may be stored longer
than twenty-four hours without acceptable treatment to
prevent putrefaction. N. J. A. C. 7:26-2.11.1; 7:26-2.11.2.
A program to control the scattering of papers and other
lightweight material, N. J. A. C. 7:26-2.11.3, dust,
N. J. A. C. 7:26-2.11.4, odors, N. J. A. C. 7:26-2.11.5, and
insects and rodents, N. J. A. C. 7:26-2.11.8 must be imple-
mented at each facility.
The New Jersey Department of Environmental Pro-
tection is not the only state administrative agency au-
thorized to supervise the operation of solid waste facilities.
Regulatory control is independently conferred upon, and
may be exercised by, the Board of Public Utility Com-
missioners. N. J. S. A. 48:2-23 provides as follows:
“The board may, after hearing, upon notice,
by order in writing, require any public utility to
furnish safe, adequate and proper service, includ-
ing furnishing and performance of service in a
manner that tends to conserve and preserve the
quality of the environment and prevent the pol-
lution of the waters, land and air of this State,
and to maintain its property and equipment in
such condition as to enable it to do so.”
The fact that there is no existing substantial or un-
reasonable threat to public health or environmental quality,
54 Brief of Appellants
and that there is a reasonable, nondiscriminatory alter-
native to exclusion, is further independently confirmed by
applicable provisions of the Resource Conservation and
Recovery Act of 1976, 42 U. S. C. § 6901 et seq. Pursuant
to the terms of said Act, the Administrator of the United
States Environmental Protection Agency is directed to
establish criteria for determining which facilities may be
classified as sanitary landfills, and which will be classified
as open dumps. The criteria must, at a minimum, eliminate
any reasonable chance of adverse effects on health or the
environment from land disposal:
“Not later than one year after the date of
enactment of this section, . . . the Administrator
shall promulgate regulations containing criteria
for determining which facilities shall be classified
as sanitary landfills and which shall be classified
as open dumps. . . . Ata minimum, such criteria
shall provide that a facility may be classified as a
sanitary landfill and not an open dump only if
there is no reasonable probability of adverse ef-
fects on health or the environment from disposal
of solid waste at such facility.”
42 U.S. C. § 6944
(Emphasis added )
Sanitary landfills are not treated as a mere alternative
to other forms of disposal; they are viewed as the principal
disposal source. In describing the most effective approach
for dealing with discarded materials, the Committee on
Interstate and Foreign Commerce, United States House of
Representatives, commented:
“The Committee recognizes that the most
effective approach for alleviating the problems
created by discarded materials is a comprehensive
Brief of Appellants 55
discarded materials management approach. Such
an approach includes the use of techniques to
recover the greatest amount of energy and mate-
rials possible from the discarded materials, reduce
waste residuals to a minimum, and provide for
an environmentally sound disposal of the re-
mainder, principally through sanitary landfill.”™
Congress was familiar with the problems typically
associated with land disposal. It recognized that the im-
proper disposal of wastes may present a danger to public
health and environmental quality, 42 U. S. C. § 6901
(b)(2), but it also understood that “the effects on human
health and the environment from real sanitary landfill
should be slight.” *
Although countless opportunities were presented, ap-
pellees never contended by any affidavit that (a) the
transportation, treatment or disposal of solid or liquid
waste in accordance with applicable federal and state laws
and regulations poses any material threat to the health,
welfare and safety of the people of New Jersey or to the
quality of its environment; (b) an unsuspecting public
will be deceived or defrauded by the transportation, treat-
ment or disposal of solid or liquid waste collected in an-
other state; or (c) the inherent condition of solid waste
is such that it will always spread pestilence and disease.
Quite to the contrary, appellees have admitted that
properly designed and regulated sanitary landfills can be
operated with no reasonable likelihood of harm to the
public or to the environment (A181-182). This admission
is in total harmony with other judicial and scholarly
authorities.
31. H Report No. 94-1491 accompanying H. R.
(Camm. on Interstate and Foreign Commerce), at 32 (Emphasis
32. Id., at 37.
56 Brief of Appellants
In Horn v. Community Refuse Disposal, Inc., 186
Neb. 43, 180 N. W. 2d 691 (Sup. Ct. 1970), plaintiffs
brought an action to enjoin the establishment and opera-
tion of a sanitary landfill. The court denied the applica-
tion saying:
“The evidence is persuasive that it is pos-
sible to operate a sanitary landfill so that it will
not emit offensive odors, pollute ground waters,
or be attractive to rodents. The rules and regu-
lations adopted in 1969 enforcible by the State
Department of Health under statutory authority
are reasonably designed to produce that result.”
Horn v. Community Refuse Disposal,
180 N. W. 2d, supra, at 692.
The overwhelmingly accepted rule is that incinerators
and sanitary landfills which are properly maintained and
operated are not public nuisances; Wood v. Town of Wil-
ton, 156 Conn. 304, 240 A. 2d 904 (Sup. Ct. 1968); Rocchi
v. Zoning Bd. of App. Town of Glastonbury, 157 Conn.
106, 248 A. 2d 922 (Sup. Ct. 1968); Myers v. City of
Hagerstown, 214 Md. 312, 135 A. 2d 147 (Ct. App. 1957)
(and cases therein cited); Annotation, “Public Dump as
Nuisance”, 52 ALR 2d 1134.
All too often, the words “sanitary landfill” and “dump”
are confused with one another.** They are very different
33. See Municipal og Disposal, 3rd ed. (Chicago: Public
Administration Service, 1970), pg. 93, wherein it is stated:
Although the sanitary landfill as a method of refuse dis-
posal was given a clean bill of health many years ago, its
acceptance by the public is still far from unanimous. The
public has too often heard the terms “landfill”, “dump”,
and “sanitary landfill” used interchangeably and does not
understand the difference between a sanitary landfill and
a landfill or dump. Unfortunately there are too many
Brief of Appellants 57
entities.“ The Rules of the Bureau of Solid Waste Man-
agement define a sanitary landfill as:
“The land disposal site employing an engi-
neered method of disposal of solid waste in a
manner that minimizes environmental hazards,
including, but not limited to the spreading of
the solid waste in thin layers, compacting the
waste to the smallest practical volume, and ap-
plying cover material on a daily or more fre-
quest basis.”
N. J. A. C. 7:26-1.4.54 (Emphasis
added )
33. (Cont'd. )
disposal facilities labeled “sanitary landfills” which are
oy y deficient in some of the essential elements. The
968 National Survey shows that 94 cent of all landfill
refuse disposal projects fall short of complying with all
criteria for fully acceptable operations. The resulting
eet of sanitary landfills has been damaging.
A well-located, well-designed, and efficiently operated
sanitary landill meets public health standards tnd. re
uiremen con i i
— air and water pollution, fire,
_ 1. Vector breeding or sustenance is prevented
eliminating harborage and food supply for ian, flies, A
other vermin.
2. Air pollution by dust, smoke, and odor is controlled.
3. Fire hazards are controlled - g ional
phases. (They are negligible in a complet ail’)
4. Pollution or surface and ground waters is pre-
cluded.
5. All nuisance factors are effectively controlled; i.e.,
the system is aesthetically acceptable noise is kept to
a minimum.
3. Pictorial illustrations of a “sanitary landfill” and a “dump”
appear on the sheet facing page 58. . ’
58 Brief of Appellants
A dump, on the other hand, is separately defined as:
“A land site at which solid waste is disposed
of in a manner which does not protect the en-
vironment, is susceptible to open burning, or is
exposed to the elements, vectors, and scavengers.”
N. J. A. C. 7:26-1.4.23.
When dumps were determined to be hazardous to
human health, their operation was entirely prohibited in
the State of New Jersey, N. J. A. C. 7:26-2.1.1. No distinc-
tion was made between dumps which accepted for disposal
solid waste collected within New Jersey and those which
accepted waste collected outside the State. The regula-
tion acted in a non-discriminatory, even-handed manner
in addressing a legitimate public problem. It was the
method of disposal which posed a substantial threat to
public health and environmental quality, not the sub-
stances disposed of or the place of their origin.
Environmental hazards are minimized by the sanitary
landfill disposal method, and by incineration, due to the
emphasis placed upon design and sanitary operation.
Origin of wastes is not related to these criteria. The de-
gree to which a disposal mode presents a threat to public
health and environmental quality is entirely within the
regulatory control of the State.
Interstate disposal of solid waste has been carried on,
without interruption, for many years. During that period,
state regulations have applied equally to all solid waste
regardless of the place of its collection.
The interstate transportation of solid and liquid waste
for treatment and disposal represents a legitimate, indeed
a necessary and vital, activity in interstate commerce,
which shouid not be disturbed.
60 Brief of Appellants
supra, at 363-365; Swift & Co. v. Wickham, 230 F.
Supp. 398, 408 (SDNY 1964), appeal dismissed, 382
U. S. 111 (1965), aff'd 364 F. 2d 241 (CA 1 1966),
cert. denied, 385 U. S. 1036 (1967).”
Jones v. Rath Packing Co., 430 U. S.,
supra, at 525-526.
Appellants respectfully submit that P. L. 1973, c. 363
must fall under the Supremacy Clause because it “stands
as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress”, Hines v. Davido-
witz, 312 U. S. 52, 67 (1940).
The procedure for applying the Jones test to Su-
premacy Clause questions was set forth several years ago
by Mr. Justice White in Perez v. Campbell, 402 U. S. 637,
644 (1971) as follows:
“Deciding whether a state statute is in conflict with a
federal statute and hence invalid under the Supremacy
Clause is essentially a two-step process of first ascer-
taining the construction of the two statutes and then
determining the constitutional question whether they
are in conflict.”
P. L. 1973, c. 363 has already been construed by the
New Jersey Supreme Court: it prohibits any person from
bringing into New Jersey any solid or liquid waste which
originated or was collected outside the State, except gar-
bage to be fed to swine, until permitted and regulated by
the Commissioner of the New Jersey Department of En-
vironmental Protection (hereinafter “Commissioner” ),
Hackensack Meadowlands v. Mun. Landfill Auth., 68 N. J.
451, 468 (1975).
The Resource Conservation and Recovery Act of 1976
(hereinafter “RCRA”) has not yet been construed. How-
Brief of Appellants 61
ever, its expressed direction in relation to hazardous waste
management and to interstate solid waste management is
clear and unambiguous.
Hazardous Waste Management.
Not later than 18 months after the date of enactment
of Sections 3003, 3004 and 3005 of RCRA, 42 U. S. C.
§§ 6923, 6924 and 6925, the Administrator of the United
States Environmental Protection Agency (hereinafter “Ad-
ministrator’) must promulgate regulations (a) establish-
ing standards, applicable to transporters of hazardous
waste, as may be necessary to protect human health and
the environment, (b) establishing standards, applicable to
owners and operators of facilities for the treatment, stor-
age or disposal of hazardous waste as may be necessary to
protect human health and the environment, and (c) re-
quiring each person owning or operating a facility for
hazardous waste treatment, storage or disposal to secure a
permit for such facilities. The Administrator, or a State,
if applicable, cannot issue a permit unless a facility com-
plies with applicable requirements of RCRA, 42 U. S. C.
§ 6925(c); and proposed disposal sites must be separately
listed in permit applications, 42 U. S. C. § 6925(b).
Although a state may develope its own hazardous
waste program, 42 U. S. C. § 6926, it is specifically pro-
hibited, with certain exceptions not material here, from
imposing any requirements less stringent than those
adopted by the Administrator, 42 U. S. C. § 6929.
The Congressional approach to hazardous waste man-
agement is particularly significant for two reasons. Firstly,
since federal—and state—regulatory controls must, at a
minimum, be protective of “human health and the en-
62 Brief of Appellants
vironment”, 42 U. S. C. §§ 6922, 6923, 6924 and 6929,
then a fortiori, a state can adequately protect its vital land
resources by something less than total exclusion. Sec-
ondly, a federal permit issued to a person owning or oper-
ating a facility for the treatment, storage or disposal of
hazardous waste pursuant to 42 U. S. C. § 6925 “must be
understood to be what it purports to be, a legislative
authorization” to treat, store or dispose of hazardous waste
regardless of its point of origin, Gibbons v. Ogden, 22
U. S. 1, 214 (1824)."
The effect of restrictive state legislation upon federal
licensees was recently reviewed in Douglas v. Seacoast
Products, Inc., 431 U. 8. 265 (1977). Speaking for seven
members of the Court in striking down a Virginia statute
which, in effect, prohibited non-residents of Virginia from
catching menhaden in the Virginia portion of the Chesa-
peake Bay, Mr. Justice Marshall declared:
“A number of coastal States have discriminatory fish-
eries laws, and with all natural resources becoming
increasingly scarce and more valuable, more such
restrictions would be a likely prospect, as both pro-
tective and retaliatory measures. Each State’s fisher-
man eventually might be effectively limited to work-
ing in the territorial waters of their residence, or in
the federally controlled fishing beyond the three-mile
limit. Such proliferation of residency requirements
for commercial fishermen would create precisely the
35. In the context of the present litigation, the evident purpose
of a federal permit to operate a hazardous waste disposal facility is
to confer upon the holder the right to engage in the activity which
gives the permit its real value, namely acceptance from any source
of hazardous waste for storage, treatment or disposal, Douglas v.
Seacoast Products, Inc., 431 U. S., supra.
Brief of Appellants 63
sort of Balkanization of interstate commercial activity
which the Constitution was intended to prevent.”
Douglas v. Seacoast Products, Inc., 431
U. S., supra, at 285-286.
While a state may impose reasonable conservation
regulations to protect its vital resources, such measures
must be designed to effectuate a legitimate local public
interest in an evenhanded manner, Huron Cement Co. v.
Detroit, 362 U. S., supra at 443; Douglas v. Seacoast Prod-
ucts, Inc., 431 U. S., supra, at 278. This New Jersey has
not done.
Despite its unquestioned power to adopt reasonable
nondiscriminatory regulations, New Jersey chose the poli-
tics of exclusion when other non-restrictive alternatives
were both suitable and adequate.
Nothing demonstrates this better than the State’s ap-
proach to hazardous waste management.
Less than 1 year ago, the New Jersey Legislature ap-
proved a supplement to the Solid Waste Management Act
(1970) governing the disposal of hazardous waste, chem-
ical waste, bulk liquids and pesticides in the ground,
N. J. S. A. 13: 1E-38 et seq. Section 5 of said supplement
provides, in pertinent part, as follows:
“After March 15, 1980, no solid waste facility shall
accept or receive for disposal, any hazardous waste,
chemical waste, bulk liquid or pesticide unless such
facility has installed a system for the interception,
collection and treatment of any and all leachate gen-
erated at the facility, and has obtained approval from
the department [of environment protection] for the
entire system.”
N. J. S. A. 13: 1E-42.
64 Brief of Appellants
Not surprisingly, the Assembly Energy and Natural
Resources Committee which reviewed the Act prior to its
passage, discounted good-intentioned concerns about en-
vironmental degradation, saying:
“.. , As originally introduced, this bill would have
prohibited any solid waste facility located within . . .
2 miles of a major aquifer, from accepting such solid
waste for disposal. The Senate Energy and Environ-
ment Committee changed the ‘2-mile’ limitation to
‘1,000 yards.’
The Assembly Energy and Natural Resources Com-
mittee saw much merit in the sponsor’s intentions, but
felt that the prohibition of disposal within 1,000 yards
of a major aquifer was too stringent and would, un-
intentionally, prevent the location of such solid waste
disposal facilities where they would present no danger
to the public health and safety. . . .”
Assembly Energy and Natural Resources Com-
mittee Statement to S. 1493 dated August
2, 1976. (Emphasis added)
The position of the Assembly Committee was adopted
by the New Jersey legislature. The bill, as enacted, per-
mits the disposal of hazardous wastes and pesticides in all
sanitary landfill facilities—-even those located in or near
major aquifers—provided a system for the interception,
collection and treatment of leachate generated at the facil-
ity has been approved by the Department of Environ-
mental Protection and installed at the site.
Brief of Appellants 65
Since hazardous waste can be discarded in a properly
designed, operated and regulated disposal facility with no
reasonable prospect of harm to public health or to en-
vironmental quality, then there is no legitimate local public
interest to be effectuated by the unlimited exclusion from
New Jersey of out-of-state hazardous waste. That being
the case, P. L. 1973, c. 363 must fall under the Supremacy
Clause for improperly limiting the full use and enjoyment
of privileges inhering in a federal permit.
Interstate Solid Waste Management.
There is a second, equally compelling, Supremacy
Clause problem with P. L. 1973, c. 363 which necessitates
its invalidity: the statute stands as an obstacle to the
establishment of solid waste management plans for inter-
state regions.
Pursuant to Section 4002 of RCRA, the Administrator
must issue guidelines that identify areas “which have com-
mon solid waste management problems and are appropri-
ate units for planning regional solid waste management
services” within 180 days after the section’s enactment, 42
U. S. C. § 6942(a). In the event an area identified by
the Administrator is in two or more states, the respective
Governors are specifically required by federal law to con-
sult, cooperate and fix the precise boundaries of the re-
gion, 42 U. S. C. §6946(c)(1). Once the boundaries
have been established appropriate elected officials of gen-
eral purpose units of local government must establish or
designate an agency to develop a plan for the region, 42
U. S. C. §6946(c)(2). It is essential to note that the
public officials referred to in the federal Act have no dis-
66 Brief of Appellants
cretion in the matter. Congress has mandated that they
“shall” take the designated action.”
Consistent with the directive contained in 42 U. S. C.
§ 6942, on May 16, 1977, the Administrator promulgated
Interim Guidelines for the Identification of Regions and
Agencies for Solid Waste Management, 40 CFR § 255.
Among the criteria listed for identifying regions are “Geo-
graphical areas which have a history of cooperating to
solve problems in environmental or other related matters”,
40 CFR §255.10(a). Preliminary identification of re-
gions is to be made by the Govenor or his or her rep-
resentative, 40 CFR § 255.20, taking into consideration the
published criteria for identifying regions, 40 CFR § 255.10,
as well as the boundaries of Standard Metropolitan Statis-
tical Areas (hereinafter “SMSA”), 40 CFR § 255.24(c).
Once a Governor recommends the identification of an in-
terstate region, concerned officials in the entire recom-
mended region must be consulted, 40 CFR § 255.24.
Significantly, New Jersey and Pennsylvania have a
history of cooperating to solve environmental and other
problems. In 1966, the two States established the Dela-
ware Valley Urban Area Compact for the coordination of
regional planning ia the compact area, N. J. S. A. 32:27-1
et seq., 73 P. S. § 701. Said area specifically included the
counties of Burlington, Camden, Gloucester and Mercer
in the State of New Jersey, and the counties of Bucks,
Chester, Delaware and Montgomery and the City of Phila-
delphia in the Commonwealth of Pennsylvania, N. J. S. A.
32:27-2(b).
The Delaware Valley Regional Planning Commissiun,
which was created by the Compact, quickly identified
36. Suits to enforce any which has become effec-
tive pursuant to the Resource tion and Recovery Act of
1976 may be brought by any person, 42 U. S. C. § 6972(a).
Brief of Appellants 67
solid waste planning as one of its statutory responsibilities.
In 1969, the agency commissioned a 6 volume Regional
Solid Waste Management Study for the subject area,"" as
part of its recognized planning function.
Furthermore, the Philadelphia SMSA includes, with
the single exception of Mercer County, the very same
counties and city participating in the Delaware Valley
Urban Area Compact; and that is coterminus with one of
the geographical areas involved in this litigation.
New Jersey has also entered into a compact with the
States of Connecticut and New York, N. J. S. A. 32:22B-1
et seq., C. G. S. A. § 16-339 et seq., McK Unconsol. Laws
§ 830 et seq. Not unexpectedly, solid waste management
planning falls within the ambit of the compact, see p. 8
supra.
It is difficult to conceive how an interstate solid waste
management plan can be developed when a participating
state prohibits the entry within its borders of solid or
liquid waste which originates or is collected outside the
territorial limits of the state. A plan cannot be developed
and implemented between unwilling participants.
In Perez v. Campbell, 402 U. S., supra, at 652, the
United States Supreme Court re-emphasized the control-
ling principle “that any state legislation which frustrates
the full effectiveness of federal law is rendered invalid by
the Supremacy Clause.” State laws which prohibit the
interstate movement of solid and liquid waste are anti-
thetical to the accomplishment of the expressed Congres-
sional purpose. Regional plans cannot be developed if
states are free to prohibit the entry of solid waste origi-
nating in other states.
37. Re Solid Waste M. Design M
6 vols. :U Fels
68 Brief of Appellants
While it is true that the Committee on Interstate and
Foreign Commerce, U. S. House of Representatives, in its
report on H. R. 14496, commented: “At this time federal
preemption of this [discarded materials] problem is un-
desirable, inefficient, and damaging to local initiative,” p.
33, that remark was directed to the overall “discarded
materials problem”, and not to the relationship of specific
state legislation with particular provisions in RCRA. Con-
gress had no intention, either express or implied, to bar
concurrent state legislation in the discarded materials area,
but it also did not intend to sanction state enactments
which would frustrate “any part of the purpose of the
federal legislation.” Colorado Comm'n wv. Continental,
372 U. §. 714, 724 (1963).
Eleven states have already adopted laws which by
their express terms, in varying degrees, directly affect the
movement of solid waste in interstate commerce, see pp.
32-33, supra. Even if these laws are not in actual conflict
with RCRA (which appellants do not concede) they estab-
lish an unmistakable potential for conflict, City of Burbank
wv. Lockheed Air Terminal, 411 U. S. 624 (1973), Jones v.
Rath Packing Co., 430 U. S. 519 (1977). This they may
not constitutionally do under the Supremacy Clause.
D
Appellants Were Unconstitutionally Denied a Plenary
Hearing on the Merits of Their Claim.
In granting appellants’ motion for summary judgment
on March 25, 1974, the New Jersey Superior Court, Law
Division, declared P. L. 1973, c 363 unconstitutional as a
matter of law on the ground that same discriminates
against interstate commerce.
Brief of Appellants 69
The statements made by Mr. Justice Brennan, when
he sat upon the New Jersey Supreme Court, in Judson v.
Peoples Bank & Trust Co. of Westfield, 17 N. J. 57, 74
(1954), continue to represent the definitive expression of
the standards of decision governing the grant or denial of
a summary judgment motion:
“It is designed to provide a prompt business-
like and inexpensive method of disposing of any
cause which a discriminating search of the merits
in the pleadings, depositions and admissions on
file, together with the affidavits submitted on the
motion clearly shows not to present any genuine
issue of material fact requiring disposition at a trial.
The standards of decision governing the grant
or denial of a summary judgment emphasize that a
party opposing a motion is not to be denied a trial
unless the moving party sustains the burden of show-
ing clearly the absence of a genuine issue of material
fact. At the same time, the standards are to be ap-
plied with discriminating care so as not to defeat a
summary judgment if the movant is justly entitled to
one.” (Emphasis added )
Appellants’ motion for summary judgment was based
only upon those Commerce Clause issues which did not
involve questions of material fact. They, like appellees,
acknowledged the existence of other issues upon which
summary judgment could not be granted (A191, 192-193).
The trial judge’s opinion reveals his determination as
a matter of federal constitutional law (a) that the trans-
portation of solid or liquid waste across state lines is a
legitimate subject of interstate commerce, and (b) that
70 Brief of Appellants
P. L. 1973, c. 363, on its face, discriminates against inter-
state commerce. Had the trial court not reached those
conclusions, appellants’ motion for summary judgment
would have been denied, and the plenary hearing sched-
uled for April 15, 1974, would have been conducted.
By their notice of appeal (A198) appellees appealed
to the Superior Court of New Jersey, Appellate Division:
“. . from the final judgment of the Superior
Court, Law Division, Mercer County, entered on
March 26, 1974, by the Honorable George Y. Schoch,
declaring P. L. 1973, c. 363 unconstitutional as viola-
tive of Art. 1, Section 8, Clause 3 of the Constitution
of the United States in favor of plaintiffs, City of
Philadelphia, Pennsylvania, City of Glen Cove, Long
Island, New York, Landfill and Development Com-
pany, MAC Sanitary Landfill, Inc., Kinsley’s Land-
fill, Inc. and DeLorenzo-Interstate Waste Removal
Co., Inc.”
Said notice of appeal also contained a certification
that a plenary hearing had never been held before the
trial court:
“I hereby certify that there was no testimony
taken in the above case. The matter was decided
on summary judgment.”
Appellees did not appeal from the denial of their
cross-motion for partial summary judgment. If they did,
and leave to file an interlocutory appeal was granted by
the Superior Court, Appellate Division, the only relief to
which appellees would have been entitled was a partial
summary judgment and a remand for a hearing of the
numerous remaining issues of material fact.
Although the New Jersey Supreme Court agreed that
the transportation and disposal of solid waste represented
Brief of Appellants 71
a legitimate subject of interstate commerce, it did not
agree that P. L. 1973, c. 363 discriminated against inter-
state commerce. However, instead of reversing the deci-
sion of the trial court and remanding the matter for a
hearing on the material factual issues presented by the
complaint, it disposed of the entire matter by upholding
the constitutionality of the statute. Appellants were
thereby entirely deprived of an opportunity to present
evidence on the reasonableness of the exercise of the
State's police power and the extent of the burden upon
interstate commerce. They were also deprived of their
right to present evidence with respect to the numerous
non-Commerce Clause issues raised by their complaint.
This result lacked fundamental fairness. Appellees
had never urged that they were entitled to judgment, as a
matter of law, on the merits of the entire action. Quite to
the contrary, they specifically argued to the trial court that
there were numerous unresolved questions of material fact
(A192-193):
“At this stage of the litigation sub judice the Court
has not had an opportunity to consider any of the
relevant facts and circumstances except affidavits sub-
mitted in favor of and in opposition to the issuance
of ad interim restraints.
Among those proofs which the court must consider
are: the nature and extent of the dangers to the
health, safety, welfare and environment of New
Jersey presented by the disposal of wastes in New
Jersey; the nature and extent of the solid waste crisis
in New Jersey; the rapid exhaustion of landfill in New
Jersey; the volume of out-of-state waste being dis-
posed of in New Jersey; the severe limiting effects on
72 Brief of Avpellants
the future development of property which has been
used for sanitary landfill purposes; the extent of the
effect on interstate commerce.”
Appellants petitioned the New Jersey Supreme Court
to reconsider their decision. They pointed out that a
plenary hearing had never been held on any issue raised
by the complaint, including the reasonableness of the
exercise of the State’s police power and the extent of its
burden upon interstate commerce, and that P. L. 1973, c.
363 was not being attacked on Commerce Clause grounds
alone.**
After considering appellants’ arguments, the New
Jersey Supreme Court remanded the case to the trial court
“ _ . for such further proceedings, if any, that that Court
may deem appropriate... .” (A299). No guidance was
given to the trial court as to what proceedings, if any,
might be “deemed appropriate” by the New Jersey
Supreme Court in light of its decision, on the merits, that
P. L. 1973, c. 363 represented a reasonable exercise of
the State’s police power and did not unreasonably burden
interstate commerce. Said decision was neither altered
nor amended in connection with the remand. In addition,
the Court refused to retain jurisdiction and specifically
prohibited the trial court from granting any interim in-
junctive relief. After effectively depriving appellants of
their day in court on the merits of their complaint, the
Court also foreclosed appellants from pursuing procedural
remedies in the trial court.
The net effect of these rulings was not only to place
appellants in a substantially worse position than they would
have been in had their motion for summary judgment ini-
38
c. 363 on
Brief of Appellants 73
tially been denied by the trial court, but also to deprive
them of a most basic and fundamental right: appellants
were never afforded an opportunity to be heard prior to a
final determination by the New Jersey Supreme Court that
P. L. 1973, c. 363 (a) represented a reasonable exercise of
the State’s police power, and (b) did not unreasonably
burden interstate commerce. In addition, they were fore-
closed from obtaining injunctive relief pending a resolution
of “. . . such further proceedings, if any, that . . . [the
trial] Court may deem appropriate... .”
As a practical consequence of this action, appellants
were constrained to dismiss, with prejudice, each and
every count in their complaint which had not been directly
addressed by the New Jersey Supreme Court, so that a
direct appeal could be taken to this Court.
Appellants respectfully contend that they have been
denied due process of law by the New Jersey Supreme
Court, in violation of the 5th and 14th amendments to the
Constitution of the United States, and in contravention of
the decisions of this Court.
The principle of federal constitutional law applicable
to the case at bar has been reiterated time and time again
by the United States Supreme Court:
“The fundamental requisite of due process of law is
the opportunity to be heard.”
Grannis v. Ordean, 234 U. S. 385, 394 (1914);
Mullane v. Central Hanover Tr. Co., 339
U.S. 306 (1950).
the event the status quo was not maintained, but rather
the revocation of the interlocutory injunction issued by
court, ap would have suffered immediate and ir-
reparable harm. egpears to be consistent with the conclusion
ay at be ustice Brennan, who twice stayed the mandate of
ersey Supreme Court.
74 Brief of Appellants
An opportunity to be heard includes an opportunity to
present a case and to be heard in its support. Brinkerhoff-
Faris Co. v. Hill, 281 U. S. 673, 681 (1930). Although
appellants scrupulously followed the procedural rules in-
hering in the courts in the State of New Jersey, they were
entirely deprived of an opportunity to be heard at a
meaningful time and in a meaningful manner in order to
defend their substantive right. They had no opportunity
to be heard on the merits of any issue of material fact
raised by their complaint prior to the final determination.
Rhodes v. Houston, 202 F. Supp. 624 (Neb. 1962), aff'd
309 F. 2d 959 (8th Cir. 1962), cert. den. 372 U. S. 909
(1963), 383 U. S. 971 (1966).
The denial of this fundamental right was raised to the
New Jersey Supreme Court at a conference meeting in the
presence of appellees on November 18, 1975, the very
same day that the case sub judice was decided. Accord-
ingly, the additional federal claim presented by the within
due process argument was raised by appellants at their
very first opportunity. Brinkerhoff-Faris Co. v. Hill, 281
U. S., supra, at 678. It was asserted a second time less
than two weeks later in a motion addressed to the New
Jersey Supreme Court which resulted in the aforesaid
order remanding the case to the trial court “. . . for such
further proceedings, if any, that that Court may deem
appropriate... .”
Upon appellants’ consent to dismiss all counts of its
complaint except Counts I, VII and XIX, no further pro-
ceedings were deemed appropriate by the trial court,
(A300),
“ . . in light of . . . the decision by the New Jersey
Supreme Court upholding the constitutionality of
P. L. 1973, c. 363 as representing a valid exercise of
the State’s police power which does not unreasonably
Brief of Appellants 75
burden interstate commerce and said Court thereby
having finally determined Counts I, VII and XIX of
plaintiffs’ complaint... .”
The action taken by the New Jersey Supreme Court
in upholding the constitutionality of P. L. 1973, c. 363
without affording appellants an opportunity to be heard
on the merits violates due process of the law. Funda-
mental rights canuot so lightly be discarded.
76 Brief of Appellants
CONCLUSION.
The New Jersey Supreme Court has decided issues of
national importance in a way not in accord with the deci-
sions of this Court. It has also so far departed from the
accepted and usual courses of judicial proceedings as to
violate appellants’ right to due process of the law in vio-
lation of the 5th and 14th amendments to the Constitu-
tion of the United States.
It is respectfully urged, in order of preference, and in
the alternative, (1) That the judgment of the New Jersey
Supreme Court be reversed and P. L. 1973, c. 363 be de-
clared unconstitutional either on the ground that same
directly burdens and discriminates against interstate com-
merce, or on the ground that same stands as an obstacle
to the accomplishment of the full purposes and objectives
of Congress in contravention of the Supremacy Clause; or
(2) that the judgment of the New Jersey Supreme Court
be reversed, and the matter remanded to the trial court
for a hearing on the factual issues raised by the Commerce
Clause questions, provided, however, that this Court retain
jurisdiction and continue the stay of judgment heretofore
granted pending 2 Snal determination of the matter by
this Court on its merits.
Respectfully submitted,
HERBERT F. Moore,
ARTHUR MEISEL,
Jamieson, McCCaARDELL, Moore,
PEskIN & SPICER,
A Professional Corporation,
Attorneys for Appellants.
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