Appellants Brief — Philadelphia v. New Jersey

IN THE FEB 15 i978 |

Supreme Court of the United Mates... JR, CLERK

Octoser Term, 1977

No. 77-404

CITY OF PHILADELPHIA, CITY OF GLEN COVE, LANDFILL

AND DEVELOPMENT COMPANY, MAC SANITARY LAND-

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

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

STATE WASTE REMOVAL CO., INC.),

Appellants,

v.

STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL

PROTECTION OF THE STATE OF NEW JERSEY and RICHARD

J. SULLIVAN, Commissioner of the Department of Environmental

Protection of the State of New Jersey,

Appellees.

On Appeal from the Supreme Court of New Jersey

a a

BRIEF FOR APPELLEES

JOHN J. DEGNAN,

Attorney General of New Jersey,

Attorney for Appellees, State of New Jersey,

Department of Environmental Protection of

the State of New Jersey and Commissioner

of the Department of Environmental Pro-

tection of the State of New Jersey,

State House Annex,

Trenton, New Jersey 08625.

STEPHEN SKILLMAN,

Assistant ~~ | ,

Of Counsel and on the Brief.

DEBORAH PORIT

NATHAN EDELSTEIN,

Attorneys General,

n the Brief.

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

TABLE OF CONTENTS

PAGE

QuesTION PRESENTED — 2

CounTER-STATEMENT OF THE CASE 2

Summary oF ARGUMENT ‘ 14

ARGUMENT:

Point I—Since the Federal Resource Conserva-

tion and Recovery Act of 1976 expressly recog-

nizes that the disposal of waste on the land

may present a danger to public health and the

environment and that the states have primary

responsibility for planning and management

to reduce this danger, the Act permits a state

to restrict the use of landfills within its

boundaries to the disposal of waste generated

in the state 16

Point II—The requirement that the use of land-

fills within a state be restricted to the dis-

posal of waste generated in that state falls

( within the basic power of the state to pro-

tect its environment and the health of its in-

habitants and thus does not violate the Com-

merce Clause of the United States Constitu-

; tion 28

Point II1I—The record before the Supreme Court

of New Jersey provided a reasonable basis

for sustaining the legislative finding that the

public health and environmental problems

caused by landfills are exacerbated by forcing

New Jersey to accept waste generated out of

state and thus there was no need for a plenary

hearing before the trial court

ConcLUSION

8 &

ii TABLE OF CONTENTS

PAGE

Cases Cited

Alfred Dunhill of London, Inc. v. Cuba, 425 U.S.

SE. GED cnnsmnesnsiniencesnneneitneiniigleameaamanan 27

American Can Co. v. Oregon Liquor Control Com’n,

15 Ore. App. 618, 517 P.2d 691 (1973) -.................... 42, 43

Asbell v. Kansas, 209 U.S. 251 (1908) ws 32

Askew v. American Waterways Operators, Inc., 411

EO 16, 23

Berman v. Parker, 348 U.S. 26 (1954) 200. 29

Bibb v. Navajo Freight Lines, 359 U.S. 520 (1959) ....29, 33

Bradley v. Public Utility Com’rs, 289 U.S. 92 (1933) 44

Brimmer v. Rebman, 138 U.S. 78 (1891) ... 33

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

eR 29, 33

City of Philadelphia v., State Dept. of Environ.

Protec., 73 N. J. 562, 376 A. 2d 888 (1977) 00... 14

Clason v. State of Indiana, 306 U.S. 439 (1939) ....31-34, 50

Colorado Anti-Discrimination Commission v. Con-

tinental Air Lines, 372 U.S. 714 (1963) 20. 20

Cooley v. Board of Wardens, 12 How. 299 (1851) ... 28

Dean Milk Co. v. Madison, 340 U.S. 349 (1951) 0... 29

Douglas v. Seacoast Products, Inc., 481 U.S. 265

PNET snsncsssisemsennasseinntansinsnnmpmeiimeaiee 48

MPA v. Brown, 431 U.S. 99 (1977) 202 24, 27

Eveo v. Jones, 409 U.S. 91 (1972) oo 36, 42, 57

Falcone v. Middlesex County Med. Soc., 47 N. J. 92,

219 A2d 50 (1966) —......... 54

TABLE OF CONTENTS ili

PAGE

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

132 (1963) 16

Freeman v. Hewit, 329 U.S. 249 (1946) 28

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

(1907) 51

Gooch v. United States, 297 U.S. 124 (1936) -............. 48

Great A.&P. Tea Co. v. Cottrell, 424 U.S. 366 (1976)..28, 29

Hebe Co. v. Shaw, 248 U.S. 297 (1918) 58

Hipolite Egg Co. v. United States, 220 U.S. 45 (1911) 48

Hoke v. United States, 227 U.S. 308 (1913) ................ 48

H. P. Hood & Sons v. DuMond, 336 U.S. 525 (1949) ..28, 33,

49

H. P. Welch Co. v. New Hampshire, 306 U.S. 79

(1939) 20

Hughes v. Alexandria Serap Corp., 426 U.S. 794

(1976) 45, 46, 58

Huron Cement Co. v. Detroit, 362 U.S. 440 (1960) 16, 29, 48

Investment Company Institute v. Camp, 401 US.

617 (1971) 27

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) ...... 51

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

N. J. 162, 238 A2d 457 (1968) o4+

Jones v. Rath Packing Co., 430 U.S. 519 (1977) ...... 25

Local Union No. 10 v. Graham, 345 U.S. 192 (1952) ..36, 57

Milk Control Board v. Eisenberg Farms Products,

306 U.S. 346 (1939) 29

Mintz v. Baldwin, 289 U.S. 346 (1933) 16

iv TABLE OF CONTENTS

PAGE

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

(1901) 51

National League of Cities v. Usery, 426 U.S, 833

(1976) esas aearictanaeiatacaea amas 24, 33

New Jersey v. New York City, 283 U.S. 473 (1931)... 51

New York v. New Jersey, 256 U.S. 296 (1921) ........... 51

New York State Dept. of Social Services y. Dublino,

I a 27

North Dakota v. Minnesota, 263 U.S. 365 (1923) ...... 51

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

gt ERIE AEE a 49

Panhandle Eastern Pipe Line Co. v. Publie Service

Comm’n, 332 U.S. 507 (1947) ..ncccccccccceccccccccseseoceos--.. 47

Parker v. Brown, 317 U.S. 341 (1943) 37, 47

Pennsylvania v. West Virginia, 262 U.S. 553 (1923) ..48, 49

Philadelphia v. New Jersey, 430 U.S. 141 (1977) ... 14

Pike v. Bruce Church, 397 U.S. 137 (1970) .................. 31

Price v. Illinois, 238 U.S. 446 (1915) 0 32

Prudential Ins. Co. v. Benjamin, 328 U.S. 408 (1946) 47

Rahrer, In re, 140 U.S. 545 SD aia 47

Railroad Co. v. Husen, 95 U.S. 465 (1877 | 33

Rasmussen v. Idaho, 181 U.S. 198 ( Ee . 32

Reid v. Colorado, 187 U.S. 137 (1902) 16, 55

Robertson v. California, 328 U.S. 440 ss 33

Senior Appeal Examiners, In re, 60 N.J. 396, 290

A. 2d 129 (1972) ............. m 59

TABLE OF CONTENTS v

PAGE

Sligh v. Kirkwood, 237 U.S. 52 (1915) 30, 31, 37

Smiley v. Kansas, 196 U.S. 443 (1904) 46

South Carolina State Highway Dep’t v. Barnwell

Bros., 303 U.S. 177 (1938) ..29, 57

Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945) 29, 30

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

N. J. 190, 314 A2d 65 (1974) 50

The Minnesota Rate Cases, 230 U.S. 352 (1913) -......... 32

United States v. Bishop Processing Company, 287 F.

Supp. 624 (D. Md. 1968), aff'd 423 F.2d 469 (4th

Cir.), cert. den. 398 U.S. 904 (1970) 48

United States v. Pennsylvania Refuse Removal As-

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

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

961 (1966) ... 48

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) 42

Welch v. Swasey, 214 U.S. 91 (1909) ..06, 57

West v. Kansas Nat. Gas Co., 221 U.S. 229 (1911)... 49

Wilson v. The Blackbird Creek Marsh Co., 2 Pet. 245

(1829) 30

Statutes Cited

J. Pub. L. 1973, Ch. 363 ..................... 2-4, 13-14, 25-27, 34,

ore 42, 46-48, 53-54, 59

N.J. Pub. L. 1975, ¢. 326 23

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

1970) sccapisinnnnndeaneubansnnansaniniankaininheieeninmuneets 23, 50

vi TABLE OF CONTENTS

PAGE

N.J.S.A. 13 :11-9 2, 59

N.J.S.A. 13:11-10 .. 3, 26

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

1970) 50

Pub. L. 91-604 24

Pub. L. 94-580 ....16, 40

28 U.S.C.:

Sec. 1257(2) .............. .. 06

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

See. 1857 .............. ‘ . siberian .24, 48

42 U.S.C. (Federal Resource Conservation and Re-

covery Act of 1976) ........................ 2, 14-16, 18-21, 23, 27, 42

IEEE SE ae eT ee ROT 16, 40

a ae

Pas MID" shicisiesecsdertdaaditichensnsccuiestspscnmeaieie 40

SUUEEE SUIIITIIED sacisssinesnssicinsesisinbecieiesinsicaddesdlanmnidadadniaennaaiin 21

tA | ssteedlstnchcehtiedietetedasiiittiicemriasaetiuencamiiisbaniiaiceslladins 18

IT sheeting Dia ieee 19

Sei: TTD shasta dibecehibicseteehiacahiecintenbccae apaimnemiia 19, 21

Sain aI enc hicedlidahaecidaeiaapacliiadicaee aaa 19, 21

ee UIE sicistibecsciitapesiiniasinteiiinceiiasieeiihnishiaubahlacl 19, 21

SEIy ITTY Uist diecnibadlitaeeheieliteapacatialaiaineadaisaathebliisia 19, 21

See. 6925 - sshelaiaiaaaiainiaieiitditeniaall 19, 21

NES a OO CDEC CE RTT ORE 19, 21

TABLE OF CONTENTS vii

PAGE

42 U.S.C. (Federal Resource Conservation and Ke-

covery Act of 1976):

See. 6927 21

GS ya seis 21

Sec. 6929 21

See. 6930 ...... 21

Sec. 6981 .............. 21

See. 6941 = 24

EEE —

Sec. 6942(b) ‘i 22

i SEITE sscctesnsstisneriistebinaienpeeduiitiiinieanieaianimenaimeieiidkiabonipapaigie 24

See. 6946(a) 22

See. 6946(b) 22

See. 6946(c) .22, 23

See. 6947(b) 23

A TE ccisernianissaettetiinernaninceendiais 3 a

BR: GI cccccsnetisinsatintieninesnsigemnnniimmncnignn 19

See. 6984 19

| OT Re gf. © See een 4

42 Fed. Reg. 24926, 40 C.F.R. Sec. 255-2... 23

viii TABLE OF CONTENTS

PAGE

Other Authorities Cited

Blannan, Janet and Mirdza Peterson, “Survival of

Fecal Coliforms and Fecal Streptococci in a Sani-

tary Landfill,” News of Environmental Research

in Cineinnati, U.S. Environmental Protection

OS

122 Cong. Ree. (1976):

____ EEO roo ne ee TN 18, 24

11071 sninininttedtiiinsenaipidseenenatenaianiinnidinuianes 18, 24

SEUTITTTET -csibdhcsistenesssmsinesonseniuinnnindenteanitdadnesiiiaceiembesiosiimieiiaiadueametaiends 18, 24

ITED scnicsicneniaenioncnicintsdapesinniaenimmnavaiindisemaisnidiinsii 18, 24

Davis, A System of Judicial Notice Based on Fair-

ness and Convenience, Perspectives of Law 69

SASTTTTED senshbapniscdesiisniseiindecseiiiainiaaldiaiidtinapiaetiibibaiiaiiiaatceaiiati 37

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

tary Landfills,” Journal of the Environmental En-

gineering Division, Proceedings of the American

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

SPO siiciabustsdaistatehdaleapiliatttebaioibbiahbiai dial ipdiiinialitiitieicaaiatbaiiae 37, 40

Gas and Leachate from Landfills: Formation, Col-

lection and Treatment, Proceedings of a Research

Symposium held at Rutgers University, U. S.

Environmental Protection Agency, March 1976 .. 37

Flower, Franklin, “Case History of Landfill Gas

Movement Through Soils”

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

mixed Materials for Lining Landfills,” Gas

Ee SUITED: sesihscsherscssseicsistadniccdinechacidensbentuasteiiions 40

TABLE OF CONTENTS ix

PAGE

Pohland, Frederick G., “Landfill Management

with Leachate Recycle and Treatment: An

Overview” 40

Hazardous Waste Disposal Damage Reports, U.S.

Environmental Protection Agency, Office of Solid

Waste Management Programs, June a 37, 40

H. Rep. No. 94-1491 25

Miller, David, Frank DeLuca and Thomas Tessier,

Ground Water Contamination in the Northeast

States, U.S. Environmental Protection Agency,

June 1974 37

Report, “Basis and Background for the Proposed

Rules of the Bureau of Solid Waste Management” +

Report of the State of New Jersey County and

Municinal Government Commission, Solid Waste:

A Coordinated Approach (1972) 36, 56

Schmalensee, Richard, Ramachandra Ramarathan,

Wolfhard Ramm and Dennis Smallwood, Measuring

External Effects of Solid Waste Management, U.S.

Environmental Protection Agency, March 1975 .. 37

S. Rep. No. 94-988, 94th Cong., 2nd Sess. (1976) ........18, 20

21, 24

The Clean Air Amendments of 1970: Can Congress

Compel State Cooperation in Achieving National

Environmental Standards? 11 Harv. Civil Rights-

Civil Liberties L. Rev. 701 (1976) 24

IN THE

Supreme Court of the United States

Octoser TERM, 1977

No. 77-404

—@—

CITY OF PHILADELPHIA, CITY OF GLEN COVE,

LANDFILL AND DEVELOPMENT COMPANY, MAC

SANITARY LANDFILL, INC., KINSLEY’S LAND-

FILL, INC., and DELORENZO-INTERSTATE WASTE

REMOVAL CO., INC. (now INTERSTATE WASTE

REMOVAL CO., INC.),

Appellants,

v.

STATE OF NEW JERSEY, DEPARTMENT OF EN-

VIRONMENTAL PROTECTION OF THE STATE OF

NEW JERSEY and RICHARD J. SULLIVAN, Com-

missioner of the Department of Environmental Pro-

tection of the State of New Jersey,

Appellees.

On Appeal from the Supreme Court of New Jersey

>

BRIEF FOR APPELLEES

Question Presented

Is a state which allows land to be used for the disposal

of waste generated within its boundaries compelled either

by the Federal Resource Conservation and Recovery Act

of 1976 or the Commerce Clause to allow that land also

to be used for the disposal of waste generated in other

states?

Counter-Statement of the Case

On January 2, 1974, the Governor of New Jersey signed

into law chapter 363 of the Laws of 1973, which was to

become effective on February 1, 1974. This legislation

contained an express finding that:

“, .. 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 environment of New

Jersey, that the available and appropriate land fill

sites within the State are being diminished, that the

environment continues to be threatened by the treat-

ment and disposal of waste which originated or was

collected outside the State, and that the public

health, safety and welfare require that the treatment

and disposal within this State of all wastes gener-

ated outside of the State be prohibited.” N.J.S.A.

13:11-9 (App. 75).

Based on this finding the New Jersey Legislature directed

that:

“No person shall bring into this State any solid or

liquid waste which originated or was collected out-

side the territorial limits of the State, except gar-

3

bage to be fed to swine in the State of New Jersey,

until the commissioner [Commissioner of Environ-

mental Protection] shall determine that such action

can be permitted without endangering the public

health, safety and welfare and has promulgated

regulations permitting and regulating the treatment

and disposal of such waste in this State.” N.J.S.A.

13:11-10 (App. 75-76).

Pursuant to the authority of chapter 363 the Commis-

sioner of the New Jersey Department of Environmental

Protection promulgated rules and regulations, which were

to become effective concurrently with the statute, providing

that:

“No person shall bring into this State, or accept

for disposal in this State, any solid or liquid waste

which originated or was collected outside the terri-

torial limits of this State. This section shall not

apply to:

“(a) Garbage to be fed to swine in the State of

New Jersey;

“(b) Any separated waste material, including

newsprint, paper, glass and metals, that is free

from putrescible materials and not mixed with

other solid or liquid waste that is intended for a

recycling or reclamation facility;

“(c) Municipal solid waste to be separated or

processed into usable secondary materials, includ-

ing fuel and heat, at a resource recovery facility

provided that not less than 70 per cent of the

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

processed into usable secondary materials; and

“(d) Pesticides, hazardous waste, chemical

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

4

treated, processed or recovered in a solid waste

disposal facility which is registered with the

Department for such treatment, processing or re-

covery, other than by disposal on or in the lands

of this State.” N.J.A.C. 7:1-4.2 (App. 81)

The complaint in this matter, which was filed with the

Superior Court of New Jersey, Law Division, on January

22, 1974, sought a declaration that chapter 363 is violative

of the United States and New Jersey Constitutions and

temporary and permanent injunctive relief restraining the

Department of Environmental Protection from enforcing

the legislation (App. 82-104). The case was brought be-

fore the trial court on cross-motions for summary judg-

ment.

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

judgment, a report was submitted, entitled “Basis and

Background for the Proposed Rules of the Bureau of Solid

Waste Management,” which appropriately describes the

crisis in solid waste disposal leading to the enactment of

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

“Recent studies indicate that sanitary landfills

have environmental problems all their own. We

have learned that keeping a landfill truly ‘sanitary’

involves much more than daily soil cover and the

use of massive machinery, although these by no

means are unimportant. In New Jersey virtually

all sanitary landfills can be expected to produce

leachate, a noxious and highly polluted liquid which

is seldom visible and frequently pollutes our ground

and surface waters. The natural decomposition proc-

ess which occurs in sanitary landfills generates a

mixture of gases. Much of this mixture is com-

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

cooking and heating.

er

5

“There are some 340 landfills now disposing of

solid waste in New Jersey, and almost all were in

existence at the time the Solid Waste Management

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

tions are situated on lands once considered ‘mar-

ginal.’ Tidal lands, floodplains, and abandoned sand

and gravel mines have been favored as locations

for disposing of our wastes because such lands were

inexpensive, and it was felt that sanitary landfill

was a suitable method of reclaiming those lands.

While it is possible to bring these areas up to a

more useful grade through sanitary landfill, little

consideration has been given to the wisdom of do-

ing so.

e s 6

“Sanitary landfills produce leachate when water

infiltrates the fill. More than half of our wastes

consist of paper or other absorptive materials. A

sanitary landfill is frequently likened to a sponge

because of this ability to absorb and hold liquids.

Yet, like the sponge, the absorptive capacity of a

sanitary landfill is finite. Water is introduced into

the fill through a variety of mechanisms. Natural

rainwater percolation, off-site drainage into the fill,

natural fluctuations in the groundwater level, tidal

influences, and the water produced through the de-

composition of the organic wastes themselves all

are absorbed by the landfill ‘sponge.’

“Eventually, the landfill becomes saturated, and

ean absorb no more liquid. At that point, each

ounce of liquid introduced to the fill causes a cor-

responding ounce of leachate to be displaced and

leave the fill. Leachate produced in a sanitary land-

fill is a highly polluted liquid characteristic of the

6

waste in which it was produced. Leachates from

municipal wastes (household and commercial

wastes) are typically 50 to 100 times as polluting

as raw sewage, and landfills have been known to

leach for as long as 20 years, although contaminant

concentrations can be expected to decrease in time.

“While examples of leaching sanitary landfills

have been studied and documented for many years,

only recently have researchers begun to study

leachate generation in detail. As recently as 1972,

the U.S. Environmental Protection Agency, in its

report entitled ‘Sanitary Landfill Design and Op-

eration,’ stated the following:

‘Some investigators believe that even in a sani-

tary landfill, leachage production is inevitable

and that some leachate will eventually enter sur-

face water or groundwater. This has not been

proven but neither hes the opposite view. The

present philosophy held by the Office of Solid

Waste Management Programs, most State solid

waste control agencies, and many experts in the

field is that through sound engineering and de-

sign, leachate production and movement may be

prevented or minimized to the extent that it will

not create a water pollution problem.’

“One particularly disconcerting feature of leach-

ate production is the time delay created by the

absorptive character of the wastes. Frequently,

landfills do not begin leaching until some time after

the fill has been completed and the waste has

reached its saturation level. Climatie conditions in

New Jersey are favorable to leachate production

and, unless extreme measures are taken to prevent

ey

any liquid from infiltrating the waste, leachate will

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

lem then becomes one of preventing the pollution

of our ground and surface waters by the leachate.

“Water pollution from sanitary landfills is deter-

mined by a number of factors, including the site

hydrology, geology, topography, method of opera-

tion, the type of wastes received for disposal, and

other physical and chemical factors which vary

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

polluting our ground and surface water resources

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

tary landfill site, and in its design and method of

operation.

oe e e

“Gas is produced in sanitary landfills as a prod-

uct of the decomposition process. During the early

stages of decomposition, air is present in the fill

and the decomposition process is therefore called

‘aerobic.’ The principal gas produced during aero-

bic decomposition is carbon dioxide (CO:.).

“As the oxygen in the fill is consumed to produce

CO., the decomposition process becomes increasing-

ly anaerobic (the absence of air). The gaseous

products of anaerobic decomposition are CO. and

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

position almost half the gas present is methane.

Methane is the ‘natural gas’ commonly used for

cooking and heating in our homes, and is explosive

when present in air at concentrations between 5

and 15 percent. Since methane is only produced

in landfills where there is no oxygen present, it

does not pose an explosive threat in the fill itself.

Methane is, however, much lighter than air and,

8

therefore, tends to migrate upward in a sanitary

landfill. The gases in the landfill are normally un-

der a slight pressure, and the methane would there-

fore travel from the fill along the path of least

resistance, sometimes moving laterally where it

cannot easily vent to the atmosphere. For this

reason, methane can constitute an explosion hazard

if it is allowed to accumulate in enclosed struc-

tures on or near a sanitary landfill.

“The introduction of bulk liquids into a landfill

ean greatly affect the generation of leachate with-

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

cepted hazardous wastes can have a particularly

devastating effect on the quality of our resources.

For these reasons, the proposed regulations would

require any sanitary landfill which accepts such

wastes to establish and maintain water monitoring

facilities, and to undertake immediate corrective

measures should the monitoring disclose contami-

nation. Additionally, the proposed regulations

would ban the disposal of hazardous wastes and

bulk liquids at conventional sanitary landfills after

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

time for the construction of recovery, treatment

and disposal facilities with sufficient safeguards to

properly handle hazardous and bulk-liquid wastes.

“Tn 1971, at least 11% million tons of solid waste

generated outside of New Jersey were buried with-

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

boring states to provide suitable disposal facilities

of their own has consumed thousands of landfill

acres in New Jersey, has contributed to the de-

9 | ‘

gradation of our environment, and is increasing the

cost of disposal for our own municipalities. The

depletion of landfill space and the enforcement of

stringent air quality standards in the metropoli-

tan regions of our neighboring states is increasing

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

Jersey at an ever-increasing rate.

“It is estimated that our metropolitan counties

of Bergen, Essex, Hudson, Passaic and Union have

no more than three years of landfill space remain-

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

tion process, the Department of Environmental

Protection, in conjunction with the Hackensack

Meadowlands Development Commission, recently

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

waste within the Hackensack Meadowlands Devel-

opment Commission district. The Hackensack Mea-

dowlands ban caused collectors of out-of-state

waste to travel into the suburban regions of the

state, thus threatening the life expectancy of those

disposal sites. This increased the cost of solid

waste collection and disposal for New Jersey’s resi-

dents, for when nearby disposal sites are depleted,

collectors must haul their waste longer and longer

distances into the State’s suburbs and rural areas.

“Since the Solid Waste Management Act took

effect in 1970, over forty landfill sites have closed.

During that same period only nine new disposal

sites have commenced operations and, of these, only

three accept general municipal-type wastes for dis-

posal. Concurrently, more and more landfill op-

erations are discovering that their acreage includes

unusable flood plain or tidal marsh areas and orig-

inal estimates of their waste capacity were errone-

ously high. The lands now utilized for sanitary

10

landfills are limited, and both industry and local

government have expressed concern over the scarcity

of suitable new sites.

“One measure of the problem is the increasing

volume of waste which requires disposal each year.

While the rate of waste generation within New Jer-

sey is rising steadily, the volume of waste imported

from other states is increasing at an alarming rate.

The depletion or abandonment of solid waste fa-

cilities in our neighboring states has greatly af-

fected the tonnage of solid waste which is brought

ints New Jersey for disposal.” (App. 149-160).

The extent of the environmental harm and the danger to

public health from landfills has been further discussed in a

series of affidavits submitted by administrators of the

Solid Waste Administration of the New Jersey Depart-

ment of Environmental Protection. Bernhardt Lind, then

Chief of the Bureau of Solid Waste Management, ex-

plained:

“At the present time, the only viable method of

solid waste disposal that exists in New Jersey is

through sanitary landfills. Thus, sanitary landfills

are necessary. However, even though they are nec-

essary, they are, at best a necessary evil. Sanitary

landfills are a vast improvement over former open

and often burning dumps and polluting incinerators.

But sanitary landfills have environmental problems

all their own. In New Jersey, virtually all sanitary

landfills can be expected to produce leachate, a

noxious and highly polluted liquid which is seldom

visible and frequently pollutes our ground and sur-

face waters. The natural decomposition process

which occurs in sanitary landfills generates a mix-

11

ture of gases including methane, the same ‘natural’

gas used in cooking and heating. It was once be-

lieved that solid waste could be used to make

swamps into good, usable lands. Examination of

terminated landfills reveal that their use for build-

ing purposes is not desirable due to the high cost

of required pilings and gas accumulation prevention

measures. The environmental insults resulting from

sanitary landfills demand that the number, size and

height of landfills be held to a minimum until such

time as viable alternative methods are developed

and implemented.” (App. 255-256).

Mr. Lind in his affidavit of March 15, 1977 cogently

described how waste originating out of state has magnified

the scope of these health and environmental problems.

After noting that the pereentage of the solid waste dis-

posal in New Jersey originating out of state had grown

to 20%, Lind concluded:

“The figures above can only be viewed with ex-

treme alarm. For as predicted in previous affida-

vits in this matter, expansions of old landfills (both

legal and allegedly illegal) have occurred at the

expense of scarce rural New Jersey acreage and at

at the expense of an increasingly precious rural

environment, because the New Jersey landfills sim-

ply cannot keep pace with the increasing disposal

volume burdening New Jersey while also conforming

to public health and safety regulations. For in-

stance, during 1976, plaintiff Fazzio Landfill was

closed and during 1977, plaintiff Mac Sanitary Land-

fill was closed because of environmental (including

odor problems) and aesthetic considerations; on the

other hand, the loss of volume from these closures

12

was picked up by other landfills like Kinsley Land-

fill and Florence Landfill.

“Further problems exist as a result of the need

to ope. up and expand existing facilities beyond

their design capacity. For example, due to the

closing of Mae Landfill and Fazzio Landfill, a sig-

nificantly increased volume of waste is being dumped

at Big Hill Landfill. The subsurface geology of

this landfill consists primarily of highly permeable

sands which could allow dripping and dangerous

leachate (a noxious and highly polluted liquid often

caused by landfills) as well as methane gases to

percolate and flow through the earth’s strata and

into the important groundwater of the State. Fur-

thermore, expanding existing landfills could lead to

increased health hazards caused by rodents, fires

and scavenger birds; landfills also, needless to say,

do not help New Jersey’s aesthetic appearance nor

New Jersey’s noise or water or air pollution prob-

lems. In fact, citizen complaints regarding noise

and odors have been received by DEP regarding

Big Hill Landfill and there are also indications that

said landfill may be causing water pollution prob-

lems in the underlying Cohansey and Kirkwood

aquifers. Thus, it can be concluded that the above

potential environmental insults demand that New

Jersey not perpetuate ‘bad’ landfills and that the

number of landfills be held to a minimum.” (Motion

for Clarification, etc., at 62sa-65sa).*

* This affidavit, which was inadvertently omitted from the ap-

pendix, will be included in a supplemental appendix to be filed by

appellants.

13

On the basis of the cross motions for summary judg-

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

ject of interstate commerce, that chapter 363 discriminates

against such commerce and that the statute therefore vio-

lates the Commerce Clause (App. 6-13).

On appeal by the State, the Supreme Court of New

Jersey found that the objective of chapter 363 was “. ..

to prolong the useful lifespan of landfill areas within the

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

health as well as endeavoring to preserve the environ-

ment.” (App. 54). It further found that the legisla-

tion did not discriminate against interstate commerce,

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

protect the inhabitants and vital resources of New Jer-

sey, not to impose economic barriers or create commer-

cial restrictions.” (App. 55). The court therefore con-

cluded that the Commerce Clause had not been violated:

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

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

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

lation are as crucial to the welfare of its citizens as is

here true, we have no hesitancy in sustaining the state

action (App. 58).

On January 9, 1976, appellants filed an appeal with

the Court (App. 303) and on April 5, 1976, probable juris-

diction was noted. 425 U.S. 910 (1976).

At the oral argument on November 3, 1976, the Assist-

ant Attorney General appearing for the State of New

Jersey noted in response to a question from Mr. Justice

White that twelve days previously the President had

signed into law the Resource Conservation and Recovery

Act of 1976, which would expand the federal role in deal-

ing with solid waste problems. On February 23, 1977, the

Court, with four justices dissenting, issued a per curiam

14

opinion vacating the judgment of the Supreme Court of

New Jersey and remanding the case for reconsideration in

light of the Resource Conservation and Recovery Act of

1976. Philadelphia v. New Jersey, 430 U.S. 141 (1977)

(App. 59-61).

On the remand, the Supreme Court of New Jersey, by

opinion dated June 20, 1977, held that chapter 363 is fully

consistent with the Resource Conservation and Recovery

Act and again unanimously upheld its validity. City of

Philadelphia v. State Dept. of Environ. Protec., 73 N. J.

562, 376 A. 2d 888 (1977) (App. 62-74).

Summary of Argument

In New Jersey and elsewhere the government, in dis-

charge of its responsibility to provide for the health,

safety and welfare of its people, makes provision for the

disposal of waste, either by performing this service itself

or by regulating private parties. However, the State and

its people pay a social cost for this public service. At the

present time the primary means of waste disposal in New

Jersey is through landfills. As expressly found by the

Supreme Court of New Jersey, landfills present numerous

dangers to public health and the environment. Virtually

all landfills can be expected to produce leachate, a noxious

and highly polluted liquid which contaminates our ground

and surface waters. Landfills also generate a mixture of

gases which may cause fires and which greatly limit the

potential future uses of the land. This means that while

landfills are necessary for the lisposal of waste generated

in New Jersey, they are at best a necessary evil.

Congress, by the enactment of the Resource Conserva-

tion and Recovery Act of 1976, has expressly recognized

*

15

that waste disposal practices vitally affect public health

and the environment and that they should therefore be the

subject of comprehensive planning and regulation by gov-

ernment. The Act also recognizes that the problems of

solid waste disposal are primarily of local, not national,

concern, and that the states have broad discretion in

determining the elements of their individual solid waste

management planning. Therefore, the legislation does not

preclude a state from restricting the use of its landfill

space to the disposal of waste generated within the state.

Nor does the Commerce Clause by its own force com-

pel a state which allows land to be used for the disposal

of waste generated within its boundaries also to allow

land to be used for waste generated in other states. The

restriction on the use of New Jersey landfills to wastes

generated in the State does not implicate any substantial

national interest in the maintenance of an open economy

which the Commerce Clause was designed to protect.

Rather, it represents a proper exercise of the basic power

of the State to protect its environment and the health of

its inhabitants by reducing the overall volume of waste

disposed on land within the state. This conclusion is re-

inforeed by the provisions of the Resource Conservation

and Recovery Act which recognize that solid waste dis-

posal should be conducted in accordance with comprehen-

sive government regulation and that it is primarily a

subject of local rather than a national concern. There-

fore, the Court should affirm the conclusion of the Su-

preme Court of New Jersey that a state may prohibit the

use of its land as a disposal site for waste generated

within a political subdivision of another state.

16

ARGUMENT

POINT I

Since the Federal Resource Conservation and

Recovery Act of 1976 expressly recognizes that the

disposal of waste on the land may present a danger

to public health and the environment and that the

states have primary responsibility for planning and

management to reduce this danger, the Act permits a

state to restrict the use of landfills within its bound-

aries to the disposal of waste generated in the state.

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

state legislation should not be inferred unless there is

“an unambiguous congressional mandate to that effect.”

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

147 (1963). The Court has been particularly reluctant

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

been enacted to serve environmental interests (Askew v.

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

(1973) ; Turon Cement Co. v. Detroit, 362 U.S. 440 (1960) )

or to protect public health. Mintz v. Baldwin, 289 U.S.

346 (1933) ; Reid v. Colorado, 187 U.S. 137, 147-149 (1902).

Therefore, the appellants must bear the heavy burden

of demonstrating an unambiguous congressional mandate

that the Resource Conservation and Recovery Act of 1976,

Pub. L. 94-580, 42 U.S.C. §6901, et seq., (hereinafter “the

Act”) pre-empts the New Jersey legislation restricting

the use of landfills located within its boundaries to the

disposal of waste generated in New Jersey.

The appellants have failed to satisfy that burden, be-

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

any way undermines the validity of the New Jersey legis-

lation. On the contrary, the Act constitutes an express

17

congressional recognition that the problems of solid waste

disposal are primarily of state and local, not national

concern. Thus, section 1002(a)(4) (42 U.S.C. $6901 (a)

(4)) states that “. .. the collection and disposal of solid

wastes should continue to be primarily the function of

State, regional and local agencies. .. .” This point is un-

derscored by the comments during deliberations on the

bill on the floor of the Senate. The co-sponsor of the bill,

Senator Randolph, stated:

“In developing this legislation, the members of

the Committee on Public Works recognized that

solid waste is a uniquely local problem and that

programs in this area should be developed and

managed at the local government level.

“This is not an area which lends itself to ex-

tensive planning and operation from the Federal

level. The role of the Federal Governme:t in solid

waste activities should be one primarily of provid-

ing financial and technical assistance. Guidelines

authorized by this legislation are to be descrip-

tive of the cptions available to local and regional

bodies responsible for solid waste management.

These guidelines should not be taken as directives

from the Federal Government for a position by the

local authorities.

“Guidelines should provide the States and area

planning agencies with maximum flexibility, while

assuring that such agencies or organizations have

adequate information to effectively implement the

planning provisions.

“To assure that the Federal Government adopts a

proper place in this program, I emphasize the Ad-

ministrator of the Environmental Protection

18

Agency is required to notify the Congress before

the publication of guidelines, information or model

codes, ordinances or statutes. The agency is re-

stricted under the provisions of the bill from ad-

vocating specific policy alternatives at the State

or local level. These matters are best left—and I

emphasize this—to local choice since they involve

substantial regional variations. It is not appro-

priate for the Environmental Protection Agency to

become involved other than in the provision of

technical assistance on request.” 122 Cong. Ree.

11069 (1976) (remarks of Senator Randolph).

These views were echoed by Senator Stafford of Vermont

(/d. at 11071), Senator Baker of Teanessee (Jd. at 11072)

and Senator Dole of Kansas (/d. at 11094-11095). No

contrary view was expressed. See also 8S. Rep. No. 94-

988, 94th Cong., 2nd Sess. 11 (1976).

A review of the individual subsections of the Act also

shows that its overall design was to foster the waste dis-

posal programs of the state rather than to pre-empt the

field at the federal level. The Act represents a signifi-

cant new federal commitment to participate in solving

the problems of solid waste collection and disposal. How-

ever, with limited exceptions discussed below, the Act

does not purport to override state legislation dealing with

the problems of solid waste management. The Act pro-

vides at section 2003 (42 U.S.C. §6913) for the establish-

ment by the Administrator of the Environmental Pro-

tection Agency of “Resource Conservation and Recovery

Panels”, consisting of technica’. marketing, financial and

institutional specialists, which will have the responsibility

of providing “States and local governments upon request

with technical assistance on solid waste management, re-

source recovery and resource conservation.” Section 2004

19

(42 U.S.C. §6914) establishes a program of federal grants

to assist private and public purchasers of tire shredders.

Section 7007 (42 U.S.C. §6977) authorizes federal grants

to train State and local personnel to carry out solid waste

and resource recovery programs. Federal funding of re-

search and development and demonstration projects are

authorized by section 8001 (42 U.S.C. §6981) and section

8004 (42 U.S.C. 46984). The sections are all elements of

an overall congressional design to leave the responsi-

bility for dealing with the problem of solid waste dis-

posal at the state and local level but at the same time to

provide federal financial and technical assistance.

The one area in which the Act imposes a direct regu-

latory responsibility upon the federal government is haz-

ardous waste. The Administrator has the responsibility

under section 3001 (42 U.S.C. §6921) for identifying the

characteristics of hazardous waste and for listing par-

ticular hazardous wastes not later than eighteen months

after enactment of the Act. The Administrator is re-

quired within the same period to promulgate regulations

governing the generation, storage, transportation and

disposal of hazardous waste. Section 3002-3005 (42 U.S.C.

§6922-6925). The Administrator also may delegate the

responsibility for regulation of hazardous wastes to state

authorities. Section 3006 (42 U.S.C. §6926).

Although the exact parameters of the eventual federal

regulation of hazardous waste are difficult to predict at

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

latory control over the subject has no immediate impact

upon New Jersey’s prohibition against the disposal of

waste originating out-of-state. First, these sections of

the Act are not self-implementing but rather are de-

pendent upon the promulgation by the Administrator of

the Environmental Protection Agency of a list of hazard-

20

ous wastes ond of regulations governing their generation,

storage, transportation and disposal. Since the Admin-

istrator has eighteen months from enactment of the Act

within which to promulgate such lists and regulations

(and it is anticipated this timetable will be extended), the

federal regulation of this area probably will not become

operative for at least another six months. It is firmly

established that such potential future regulation of a sub-

ject matter by a federal agency does not pre-empt present

regulation by the states. Colorado Anti-Discrimination

Commission v. Continental Air Lines, 372 U.S. 714, 723-

724 (1963); H. P. Welch Co. v. New Hampshire, 306 U.S.

79, 84-85 (1939).

Secondly, and even more importantly, when the federal

regulatory program does hecome operative, it will be lim-

ited to “hazardous wastes”. This term is generally un-

derstood in the field of solid waste management to apply

solely to industrial wastes which are inherently dangerous

to plant and animal life. The Senate Committee on Pub-

lie Works noted in its report on the Act that “[m]aterials

of major concern are arsenic wastes, insecticide and pes-

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

taminated with metals such as chromium and zine, and

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

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

fined as:

- ; ts :

. .. a solid waste, or combination of solid wastes,

which because of its quantity, concentration, or

physical, chemical or infectious characteristics

may—

- — :;

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

crease in mortality or an increase in serious irre-

versible, or incapacitating reversible, illness; or

21

“(B) pose a substantial present or potential haz-

ard to human health or the environment when im-

properly treated, stored, transported, or disposed

of, or otherwise managed.” Section 1004(5) (42

U.S.C. $6903(5)).

Furthermore, the Administrator is directed, in listing the

“hazardous wastes” which will be subject to federal regu-

lation, to take into account “. . . toxicity, persistence, and

degradability in nature, potential for accumulation in tis-

sue, and other related factors such as flammability, cor-

rosiveness, and other hazardous characteristics.” Section

3001 (42 U.S.C. §6921). It seems clear that ordinary

household and commercial waste, or garbage, would not

fall within these criteria for defining “hazardous waste”

and thus would not be subject to federal regulation under

sections 3001-3011 (42 U.S.C. §69°1-§6931) of the Act.

This conclusion is supported by the Report of the Senate

Committee on Public Works on the Act which expressly

states that the permit system for hazardous wastes “.. .

is not to be used to control the disposal of hazardous sub-

stances used in households or to extend control over gen-

eral municipal wastes based on the presence of such sub-

stances.” S. Rep. No. 94-988, 94th Cong., 2nd Sess. 16

(1976). Since the New Jersey statute, as limited by its

implementing regulations, is primarily directed towards

general municipal waste, and since the appellants appar-

ently are engaged solely in the disposal of such waste, the

federal regulation of “hazardous waste” would have no

effect on the subject matter of the instant appeal.

In addition to providing for direct federal regulation

of “hazardous waste”, the Act establishes a system

of incentives for regional planning with respect to the

reclamation or disposal of other solid wastes. The Act

contemplates joint federal-state action to identify regions

appropriate for solid waste planning and to adopt regu-

lations for solid waste management. Section 4002(a)

(42 U.S.C. §6942(a)) provides that within 180 days after

enactment of the Act, the Administrator “. . . after consul-

tation with appropriate Federal, State, and local author-

ities, shall by regulation publish guidelines for the iden-

tification of those areas which have common solid waste

problems and are appropriate units for planning regional

solid waste management services.” Section 4006(a) (42

U.S.C. §6946(a)) provides that within 180 days after

adoption of the federal guidelines, “. . . the Governor of

each State, after consultation with local elected officials,

shall promulgate regulations based on such guidelines

identifying the boundaries of each area within the State

which, as a result of urban concentrations, geographic

conditions, markets, and other factors, is appropriate for

carrying out regional solid waste management.” Section

4006(c) (42 U.S.C. §6946(c)) also provides that such re-

gions may embrace more than one state, in which event

“... the Governors of the respective states ... shall enter

into agreements identifying the boundaries of such re-

gion.” Section 4006(b) (42 U.S.C. §6946(b)) provides

that within a third 180 day period the State shall “. ..

(A) identify an agency to develop the State plan and

identify one or more agencies to implement such plan and

(B) identify which solid waste functions will, under such

State plan, be planned for and carried out by the State

and which such functions will, under such State plan, be

planned for and carried out by regional or local authority

or a combination of regional or local and State author-

ities.” Section 4002(b) (42 U.S.C. §6942(b)) provides

that eighteen months after enactment of the Act “. .. the

Administrator shall, after consultation with appropriate

Federal, State, and local authorities, promulgate regula-

tions containing guidelines to assist in the development

23

and implementation of State solid waste management

plans.” The Act also authorizes appropriations for solid

waste planning for states with a state plan that has

been approved by the Administrator. Section 4007(b)

(42 U.S.C. $6947(b)).

There is no incompatibility between these provisions and

the restriction of the use of landfills located within New

Jersey to the disposal of waste originating in the State.

The only way chapter 363 could conflict with the Act

would be if the plans of New Jersey and its neighboring

states included “interstate regions” pursuant to section

4006(c) (42 U.S.C. §6946(c)). However, the “Interim

Guidelines” for “Identification of Regions and Agencies

for Solid Waste Disposal” adopted by the Administrator

on May 16, 1977 (42 Fed. Reg. 24926, 40 C.F.R. $255) do

not purport to mandate the establishment of an “interstate

region” in any particular area and the Governor of New

Jersey, pursuant to section 4006(c), has designated solely

intrastate regions. See N.J. Pub. L. 1975, e. 326 (N.J.S.A.

13:1E-1 et seg.). There is thus no conflict between the

Act, at least as presently administered, and the restric-

tion by New Jersey of the use of its landfills to waste

originating in New Jersey. Therefore, as in Askew v.

American Waterways Operators, Inc., supra, at 336“...

- it will be time to resolve any such conflict between federal

and state regimes when it arises.”

Furthermore, the planning provisions of the Act are

clearly intended to be voluntary. The first section of the

planning subchapter states that its “objectives . . . are

to assist in developing and encouraging methods for the

disposal of solid waste which are environmentally sound

and which maximize the utilization of valuable resources

and to encourage resource conservation ... through Fed-

eral technica! and financial assistance . . . designed to

foster cooperation among Federal, State, and local gov-

24

ernment and private industry.” Section 4001 (42 U.S.C.

$6941). This language clearly contemplates voluntary un-

dertakings, rather than mandatory obligations. The vol-

untary nature of the planning provisions of the Act is

also evident in the specific section dealing with “inter-

state” regions, which states that the establishment of these

regions shall be by “agreement of the respective gov-

ernors. Furthermore, there is no provision for the Ad-

ministrator imposing an interstate plan in the event the

governors fail to agree.’

The intent of Congress to make interstate regional

planning voluntary is confirmed by the numerous state-

ments in the legislative history that “. . . States and

areawide solid waste management planning agencies have

free choice in selecting the elements of their solid waste

management plans.” S. Rep. No. 94-988, 94th Cong., 2nd

Sess. 11 (1976). See also 122 Cong. Ree. 11069 (1976)

(comments of Senator Randolph) ; 7d. at 11071 (comments

of Senator Stafford); Jd. at 11072 (comments of Senator

Baker); 7d. at 11094-11095 (comments of Senator Dole).*

' The essentially voluntary planning provisions of the Resource

Conservation and Recovery Act are dramatically different from the

mandatory planning provisions of the Clean Air Act, as amended

in 1970. Pub. L. 91-604, 42 U.S.C. §1857-1858a. See The Clean

Air Amendments of 1970: Can Congress Compel State Cooperation

in Achieving National Environmental Standards? 11 Harv. Civil

Rights-Civil Liberties L. Rev. 701 (1976). If it were possible to

read the planning provisions of the Resource Conservation and Re-

covery Act as mandatory, a substantial question would be presented

as to whether Congress has the authority to impose mandatory plan-

ning obligations upon the states in the environmental area. Cf. EPA

v. Brown, 431 U.S. 99 (1977) ; National League of Cities v. Usery,

426 U.S. 833 (1976).

2 One exception to the general design of local option with respect

to state plans is the requirement that open dumps be eliminated.

See section 4005 (42 U.S.C. §6945).

25

This point is stated with particular clarity in the Report

of the House Commerce Committee:

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

sistance should be an incentive for state and local

authorities to act to solve the discarded materials

problem. At this time federal preemption of this

problem is undesirable, inefficient, and damaging

to local initiative.

“Simply, the discarded materials problem is one

of planning and the Committee anticipates that fed-

eral guidelines for planning will foster the neces-

sary cooperation between the federal government,

states, and local regions, to meet very broad and

flexible objectives of this act. If those objectives

are not met, the states and local authorities within

the states will lose the federal or technical assist-

ance. However, the provisions of this legislation,

specifically do not authorize the federal government

to take over the responsibility for discarded mate-

rials disposal planning.” H. Rep. No. 94-1491, at

33.

Therefore, even if the guidelines promulgated by the Ad-

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

were at some later date to suggest the appropriateness of

an interstate region encompassing New Jersey, the Gover-

nor of New Jersey still will have the option whether to

agree to such a plan.

In any event, assuming arguendo that the Act could be

read to impose mandatory obligations upon the respective

states to participate in interstate planning, chapter 362

would not stand as an obstacle to compliance with that

obligation. Cf. Jones v. Rath Packing Co., 430 U.S. 519

(1977). Chapter 363 does not by its terms preclude the

26

Governor of New Jersey from conferring with the gover-

nor of a sister state regarding regional solid waste plan-

ning. And if the procedures of the Act eventually were

to result in an agreement between the governors which

was inconsistent with a total ban on the disposal in New

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

plemented, as found by the Supreme Court of New Jer-

sey (App. 72-73), through a further exercise by the Com-

missioner of Environmental Protection of his power to

adopt exceptions from the total ban where that can be

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

and welfare. .. .” N.J.S.A. 13:11-10. Furthermore, an

authorization resulting from bilateral discussions between

the responsible officials of the two states to dispose of

waste originating out-of-state in New Jersey would be sig-

nificantly different from Philadelphia’s unilateral decision

to use New Jersey as its disposal site. Such authorization

undoubtedly would be the product of a careful and coor-

dinated evaluation of the disposal needs and the environ-

mental and health concerns of the two states rather than

the unplanned result of certain New Jersey entrepreneurs

seeking to maximize profits without regard to the health

and environmental concerns of the rest of the citizenry.

Finally, it should be noted that the Solicitor General,

on behalf of the United States as amicus curiae, has taken

a firm position that the Act does not pre-empt chapter

363. In his memorandum on the application for stay pend-

ing appeal, the Solicitor General stated:

“We think that the <Act’s full purposes may be

achieved whether or not New Jersey accepts waste

from other States, at least in the absence of any

experience or regulations establishing the presence

of a hindrance.

. o *

27

“(T]he explicit provision for partial preemption in

section 3009 strongly suggests that no further pre-

emption is intended.

“The fact that Subchapter IV is no more than a

method of providing federal assistance to cooperat-

ing States indicates that Congress did not intend

to bring coercive pressure to bear upon the State

or to oust any of their laws.” *

If there were any doubt concerning the intent of Con-

gress to permit the states to implement regulatory pro-

visions such as chapter 363, the position of the United

States Government, as expressed through the Solicitor

General, should tip the balance in favor of finding that

chapter 363 is fully consistent with the legislative scheme

envisioned by Congress. Cf. EPA v. Brown, 431 U.S. 99,

103 (1977); Alfred Dunhill of London, Inc. v. Cuba, 425

U.S. 682, 696-697 (1976); New York State Dept. of Social»

Services v. Dublino, 413 U.S. 405, 420-421 (1973); Invest-

ment Company Institute v. Camp, 401 U.S. 617 (1971).

Therefore, the enactment of the Resource Conservation

and Recovery Act of 1976 does not in any way undercut

the validity of the New Jersey legislation prohibiting the

disposal of waste originating out of state. Rather, it re-

flects congressional concurrence with the view that the dis-

posal of waste does not involve the national interest in

maintenance of an open economy, but instead the discharge

8 Obviously, the brief filed by the Solicitor General represents the

authoritative statement of the United States Government as to the

compatibility of chapter 363 with federal legislation. Therefore the

contrary statement four years ago by a middle echelon official of

EPA, set forth at pp. 133-136 of the appendix and heavily relied

upon in appellants’ brief, should be disregarded.

28

by government under the police power of a fundamental

responsibility to provide for the disposal of waste gen-

erated by its inhabitants with the least possible adverse

impact upon health, the environment and land use.

POINT II

The requirement that the use of landfills within a

state be restricted to the disposal of waste generated

in that state falls within the basic power of the state

to protect its environment and the health of its in-

habitants and thus does not violate the Commerce

Clause of the United States Constitution.

It has been well established at least since Cooley v.

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

merce Clause not only provides an affirmative grant of

authority to Congress, but also “. . . even without imple-

menting legislation by Congress is a limitation upon the

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

252 (1946). It is equally well established, however, “. . .

that under our constitutional scheme the States retain

‘broad power’ to legislate protection for the citizens in

matters of local concern such as public health, . . .” Great

A.€P. Tea Co. v. Cottrell, 424 U.S. 366, 371 (1976). As the

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

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

the State to shelter its people from menaces to their

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

gers emanate from interstate commerce, and its lack of

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

merce for their economic advantage, is one deeply rooted

in both our history and our law.” The local concerns over

which the states retain comprehensive authority, even

when interstate commerce may be affected, include pro-

29

tection of the environment. Huron Portland Cement Co.

v. Detroit, 362 U.S. 440 (1960); cf. Berman v. Parker, 348

U.S. 26 (1954).

The Court frequently has been confronted with chal-

lenges to state legislation which furthered legitimate local

interests but simultaneously imposed a significant burden

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

in absence of congressional guidance is called upon to

make ‘delicate adjustment of the conflicting state and fed-

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

modation between local needs and the overriding require-

ment of freedom for the national commerce.’” Great

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

eases in this area well illustrate how delicate this process

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

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

Commerce Clause to be violated by a statute requiring

a particular type of rear fender mudguard on trucks and

trailers operated within a state, but in South Carolina

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

(1938) it sustained state limitations on the weight and

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

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

utes imposing limitations on the length of freight cars

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

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

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

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

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

violated by an ordinance which prohibited the sale of

milk in a municipality unless it had been pasteurized and

bottled at an approved plant located within five miles of

the municipality, but in Milk Control Board v. Eisenberg

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

ute requiring interstate milk dealers to keep records, to

30

post a bond to guarantee prompt payment to purchasers

and to pay minimum prices to producers. Although the

results varied, the Court was confronted in all these cases

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

disputable burden upon the open national market which

the Commerce Clause was designed to protect. There-

fore, it carefully scrutinized any burdens on the free flow

of interstate commerce with the consequence that any dis-

crimination against interstate transactions almost invar-

iably resulted in a declaration of invalidity.

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

stantial interests in national commerce were implicated

and local concerns were paramount. The Court has sus-

tained state legislation under such circumstances without

engaging in the delicate process of balancing required

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

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

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

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

most clearly paramount in preventing the transportation

into a state of articles which are inherently injurious

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

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

“The power of the state to prescribe regulations

which shall prevent the production within its bor-

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

ticles as would spread disease and pestilence, is

well-established. Such articles, it has been declared

by this Court, are not the legitimate subject of trade

or commerce, nor within the protection of the com-

merce clause of the Constitution. ‘Such articles are

not merchantable; they are not legitimate subjects

of trade and commerce. They may be rightly out-

lawed as intrinsically and directly the immediate

31

sources and causes of destruction to human health

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

therefore, may be rightfully exerted against their

introduction, and such exercises of power cannot be

considered regulations of commerce prohibited by

the Constitution.

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

lations incidentally affect interstate commerce, when

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

is a legitimate attempt to protect the people of the

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

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

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

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

contaminated or unfit produce, it clearly rests on

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

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

merce, nor within the protection of the commerce

clause of the Constitution.’ ”

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

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

held an Indiana statute which in effect prohibited the in-

terstate transportation of animal carcasses not slaughtered

for food. The Court, relying on Sligh, recognized that

the statute was “a sanitary and health measure not in-

tended to cause discrimination against or to burden inter-

state commerce. . . .” 306 U.S. at 443. The Court em-

phatically stated:

“Here, contrary to what seems to be the insistence

of counsel, the State has not recognized dead horses

as legitimate articles of intrastate commerce. It

permits them to be sold only to licensed operators

who raust transport them immediately under strict

sanitary regulations for prompt delivery to a li-

censed plant there to be rendered innocuous with-

out delay by prescribed methods. All this is part

of a workable scheme to secure prompt removal of

decaying carcasses and thus protect against obvi-

ous evils.

“We can find no substantial basis for the charge

of discrimination against legitimate interstate com-

merce. That any real burden upon commerce which

the State is not free to inhibit will result from the

challenged statute seems impossible.

“There is no suggestion of conflict with a federal

enactment. The mere power of the Federal Gov-

ernment to regulate interstate ecommerce does not

disable the State from adopting reasonable meas-

ures designed to secure the health and comfort of

their people. The statute under consideration is

an effort to discharge an obligation to the public;

the means adopted we think are clearly appropri-

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

See also Price v. Illinois, 2838 U.S. 446 (1915); The Minne-

sota Rate Cases, 230 U.S. 352, 406-408 (1913); Asbell v.

Kansas, 209 U.S. 251 (1908); Rasmussen v. Idaho, 181

U.S. 198 (1901).

It is clear that the prohibition against the disposal

within New Jersey of waste originating out of state falls

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

vironment and the health of its inhabitants and thus does

not violate the Commerce Clause. It does not matter

whether it is found that waste intended for disposal is

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

supra) or that environmental and health concerns of the

33

State are paramount to the commercial interests of the

appellants. Cf. Robertson v. California, 328 US. 440,

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

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

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

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

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

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

tancy in sustainnig the state action.” (App. 58).

The transportation and disposal of waste is vastly dif-

ferent from the commerce in which the Founding Fathers

sought to maintain an open national market. The appel-

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

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

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

West Kansas Natural Gas Co., supra, or livestock, Brim-

mer v. Rebman, 138 U.S. 78 (1891); Railroad Co. v. Husen,

95 U.S. 465 (1877). Nor does it involve an instrumen-

tality of national ecommerce, such as railroads, Brother-

hood of Loc. F & E v. Chicago, Rl. € PRM. Co., supra,

or highways, Bibb v. Navajo Freight Lines, supra.

Rather, their business involves the fundamental respon-

sibility of government, under the police power, to provide

for the disposal of waste generated by its inhabitants.

Clason v. Indiana, supra; Cf. Nat’l League of Cities v.

Usery, 426 U.S. 833 (1976).

Furthermore, the sole purpose and effect of the statute

is not economic protectionism but rather to further the

health and environmental interests of the State. No New

Jersey commercial interests stand to gain advantage over

competitors from outside the state as a result of the ban

on dumping out-of-state waste. On the contrary, among

the appellants are New Jersey landfill operators. The

complaint is not that New J ersey has forged an economic

preference for its own commercial interests, but rather

34

that it has denied a small group of its entrepreneurs an

economic opportunity to traffic in waste in order to pro-

tect the health, safety and welfare of the citizenry at

large. Clason v. Indiana, supra. The ban on dumping

out-of-state waste therefore does not implicate any sub-

stantial national interest in the maintenance of an open

economy which the Commerce Clause was designed to pro-

tect.

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

terest in the preservation of the state’s environment and

the health of its inhabitants. There is a solid waste crisis

in New Jersey. The nature of the crisis was stated in

emphatic terms by the New Jersey Legislature and the

Supreme Court of New Jersey. Section 1 of chapter 363

declares :

“The Legislature finds and determines that since

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

seq.) the volume of solid and liquid waste continues

to rapidly increase, that the treatment and dis-

posal of these wastes continues to pose an even

greater threat to the quality of the environment of

New Jersey, that the available and appropriate

landfill sites within the State are being diminished,

that the environment continues to be threatened by

the treatment and disposal of waste which orig-

inated or was collected outside the State, and that

the public health, safety and welfare require that

the treatment and disposal within this State of all

wastes generated outside of the State be pro-

hibited.”

Similarly, the Supreme Court of New Jersey, referring

to its own findings in prior litigation involving solid

waste problems as well as taking judicial notice of legis-

lative studies, stated:

35

“The Court is acutely aware of the solid waste

disposal problem which now exists in the State of

New Jersey. Very recently we recognized that it

had reached ‘crisis proportions’ due to the increas-

ing scarcity of sites for dumping and _ landfill.

Southern Ocean Landfill, Inc. v. Mayor and Cowr

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

A. 2d 65 (1974).

6 es e

“Compounding the shortage problem are other

extremely important environmental considerations.

Many existing landfills within the State are located

within ecologically sensitive areas, such as flood-

plains, wetlands, or on State-owned public trust

tidelands. The operation of landfills now located in

these areas may have to be limited or discontinued.

An example of this is the action taken by HMDC

in preserving some 1,500 acres of virgin wetlands

which had formerly been tentatively designated for

use as landfill sites. Further actions of a similar

nature are contemplated, thus reducing the esti-

mates of the potential lifespans of such existing

facilities.

s & eo

“Our Appellate Division has recognized that gar-

bage and refuse may provide a direct threat to

the public health. Shaw v. Byram Township, 86

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

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

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

trimental effects which sanitary landfills have upon

the environment have been acknowledged:

‘* * * Sanitary landfi!'s conducted on virgin land

forever ruin the possibility of preserving the site

for conservation. Additionally, such landfill op-

36

erations can have an adverse effect on the eco-

logical balance of the surrounding area. A sani-

tary landfill operation also has severe limiting

effects on future development of the property.

Problems of settlement, gas generation, and fires

make it difficult to construct structures on former

landfill sites. [Municipal Sanitary Landfill Au-

thority v. Hackensack Meadowlands Development

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

1972) ; emphasis in original]’

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

jectives of the statutes and regulations in question

are not only to preserve the health of New Jersey

residents by keeping their exposure to solid waste

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

serve for the benefit of both present and future

generations the natural habitat and ccological

values which landfill usage would destroy.” (App.

38, 40, 51-52).

These legislative and judicial findings are solidly

grounded on the Basis and Background Statement of the

New Jersey Department of Environmental Protection,

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

port of the State of New Jersey County and Municipal

Government Commission, entitled Solid Waste: A Co-

ordinated Approach (1972), of which judicial notice was

taken by the Supreme Court of New Jersey (App. 40).

Since there is a reasonable basis in the record for the

findings of the New Jersey Legislature and the Supreme

Court of New Jersey, they should be accepted on appeal

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

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

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

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

37

supreme court will be re-examined only in “exceptional

circumstances.” No showing of such “exceptional circum-

stances” has been made in this case.

On the contrary, the general literature on the subject,

of which the Court can and should take judicial notice

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

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

Judicial Notice Based on Fairness and Convenience, Per-

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

ings of the Supreme Court of New Jersey concerning the

danger to the environment and public health from land-

fills. It has been widely recognized that landfills are un-

sightly, a source of noxious odors and vermin and, with

*Gas and Leachate from Landfills: Formation, Collection and

Treatment, Proceedings of a Research Symposium held at Rutgers

University, U. S. Environmental Protection Agency, March 1976

(hereinafter Gas and Leachate); Esmaile, Houshang, “Control of

Gas Flow from Sanitary Landfills,” Journal of the Environmental

Engineering Division, Proceedings of the American Society of

Civil Engineers, Vol. 101, EE4, August 1975 “hereinafter Control

of Gas Flow’; Hazardous Waste Disposal Damage Reports, U.S.

Environmental Protection Agency, Office of Solid Waste Manage-

ment Programs, June 1975; Schmalensee, Richard, Ramachandra

Ramarathan, Wolfhard Ramm and Dennis Smallwood, Measuring

External Effects of Solid Waste Management, U. S. Environmental

Protection Agency, March 1975 (hereinafter Measuring External

Effects); Blannan, Janet and Mirdza Peterson, “Survival of Fecal

Coliforms and Fecal Streptococci in a Sanitary Landfill,” News of

Environmental Research in Cincinnati, U. S. Environmental Pro-

tection Agency, April 12, 1974 “hereinafter Survival of Fecal Coli-

forms”; Miller, David, Frank DeLuca and Thomas Tessier, Ground

Water Contamination in the Northeast States, U. S. Environmental

Protection Agency, June 1974 (hereinafter Ground Water C ontami-

nation).

38

the introduction of heavy machinery, exceedingly noisy.®

It is also now known that landfills are almost certain

sources of ground and surface water pollution,® that they

produce dangerous gases as a byproduct of both aerobic

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

refuse, including the operation of compactor and transport trucks as

they disgorge their cargoes and the constant operation of the heavy

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

Measuring External Effects, supra at 219.

Since powerful machinery is required for spreading and compact-

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

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

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

contamination in 11 northeast states including New Jersey, the

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

tamination represent only a small fraction of the actual pollution

present. They conclude that:

“The thousands of acres of landfills containing municipal and

industrial solid wastes are an almost universal source of

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

Though new landfill developers in New Jersey are attempting to

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

exists with regard to the various methods that might be successful

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

regulations are helpful but that the true characteristics of leachate

from the various types of landfills, the ability of soils to reduce the

concentration of pollutants and the effects of cover materials at land-

fill sites are not sufficiently understood. The technology

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

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

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

that can be followed.” Jd. at 218.

39

and anaerobic decomposition’ and that they are severely

limited as to potential use when completed.* The stand-

ards originally set for the operation of sanitary landfills

(daily compaction and soil cover) are understood today

to be inadequate. Attempts to minimize the “leaching” of

organic and inorganic pollutants from landfill sites

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

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

greater the quantity, putrescibility, moisture content and temperature

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

landfill.” Measuring External Effects, supra at 326.

Completed landfills are not easily converted into safe building sites

although gas vents have been used with limited success for controlled

escape and burning.

“The problems of fire and explosion hazards from landfills

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

adjacent sewer lines or the foundations of buildings located

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

is both inevitable and sufficiently abundant to produce a sig-

nificant hazard.” Jd. at 238, 239.

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

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

struction explosive mixtures of methane were found in crawl spaces

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

the foundations proved unsuccessful it became necessary to install

automatic ventilation equipment, especially since the methane accum-

ulation had rapidly increased during the sceond and third years of

monitoring.

8 Fill materials slowly decompose causing a gradual shifting and

settlement over the extent of a given site. Many factors are involved :

the weight and composition of the fill, the weight of cover materials,

the amount of rainfall and, if the land is used for construction, the

weight of the structure placed there. Since a number of these factors

are unpredictable (the diverse nature of fill materials for example)

“landfills are a particularly poor foundation material for construc-

tion”. Id. at 259.

40

through the use of liners are still in the experimental

stage.’ Many have been found faulty. Attempts have been

made to vent accumulated gases but the danger of fire

and explosion has not been eliminated.’®

The generally recognized fact that solid waste disposal

poses substantial dangers to the environment and public

health was also expressly acknowledged by Congress in

the Resource Conservation and Recovery Act of 1976, Pub.

L. 94-580, 42 U.S.C. §6901, et seg. Thus, section 1002(b)

(42 U.S.C. §6901(b)) states:

® Haxo, Henry E., Assessing Synthetic and Admixed Materials

for Lining Landfills,” Gas and Leachate, supra, 130. In “Survival

of Fecal Coliforms,” supra, the authors conclude that pathogenic

microorganisms may be “transmitted into the environment through

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

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

leachate is collected for treatment, inert organic matter and totally

dissolved inorganic solids cannot easily be removed. See Pohland,

Frederick G., “Landfill Management with Leachate Recycle and

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

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

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

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

trees in commercial orchards in Glouchester County, the death of

ornamental vegetation and the entry of combustible gases into pri-

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

Burlington County. The author comments, “Sometimes gas vents

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

times they do not.” /d. at 188.

Also, in Hazardous Waste Disposal Damage Reports, compiled by

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

Management Programs, supra, the agency describes three separate

instances of waste disposal practices which resulted in arsenic poison-

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

bulldozer operator.

41

“ENVIRONMENT AND HeattaH.—The Congress finds

with respect to the environment and health, that—

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

source to be needlessly polluted by discarded mate-

rials, most solid waste is disposed of on land in

open dumps and sanitary landfills;

“(2) disposal of solid waste and hazardous waste

in or on the land without careful planning and

management can present a danger to human health

and the environment;

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

Pollution Control Act, and other Federal and State

laws respecting public health and the environment,

greater amounts of solid waste (in the form of

sludge and other poilution treatment residues) have

been created. Similarly, inadequate and environ-

mentally unsound practices for the disposal or use

of solid waste have created greater amounts of air

and water pollution and other problems for the

environment and for health;

“(4) open dumping is particularly harmful to

health, contaminates drinking water from under-

ground and surface supplies, and pollutes the air

and the land;

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

problems associated with non-hazardous solid

waste, special dangers to health and requires a

greater degree of regulation than does non-hazard-

ous solid waste; and

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

posal must be developed since many of the cities in

the United States will be running out of suitable

42

solid waste disposal sites within five years unless

immediate action is taken; ... .”

Significantly, the appellants do not directly challenge

the factual finding of the Supreme Court of New Jersey

that landfills pose a serious threat to public health and

the environment. Rather they seek to satisfy the burden

imposed by Evco v. Jones, supra, by simply describing

the web of federal and state statutes and regulations

which address the problems of waste disposal (Appel-

ants’ brief, pp. 45-58). However, no responsible authority

asserts that these measures are likely in the foreseeable

future to eliminate the health and environmental prob-

lems of waste disposal, any more than the extensive fed-

eral and state efforts in the field of law enforcement are

likely to eliminate crime. On the contrary, the voluminous

statutory and regulatory provisions cited by appellants,

the congressional reports on the bills enacted as the Re-

source Conservation and Recovery Act of 1976 and the

congressional findings set forth in the Act, all attest in

dramatic terms to the fact that the country is far away

from a point where it accurately can be said, as urged

by appellants, that the disposal of waste poses no real

health or environmental problems.

The appellants also point to statements that chapter

363 was enacted to preserve available landfill space for

the disposal of New Jersey waste and seek to infer that

the legislation was not designed to serve health or en-

vironmental interests of the State. Initially, it should be

noted that appellants have failed to cite any authority

for the proposition that the Commerce Clause disables

a state from enacting legislation to limit an activity

which has a deleterious impact on land use. Cf. Village

of Belle Terre v. Boraas, 416 U.S. 1 (1974); American

Can Co. v. Oregon Liquor Control Com’n, 15 Ore. App.

43

618, 517 P.2d 691 (1973). In any event, the landfill pres-

ervation, and health and environmental objectives of chap-

ter 363 cannot be rigidly separated in the manner assumed

by appellants’ argument. It is at precisely the point when

existing capacity has been exhausted that landfills pre-

sent the most severe threat to public health and the en-

vironment. As noted by the Supreme Court of New

Jersey, even at the present time “. . . many landfills

within the State are located within ecologically sensitive

areas, such as floodplains, wetlands, or on State-owned

public trust tidelands.” (App. 40). It is clearly desirable

to discontinue or at least to limit the use of such land-

fills. However, the plain fact is that the exhaustion of

available landfills space through overutilization increases

the risk that disposal in the most environmentally sens:-

tive areas will have to be increased. As noted by the Su-

-preme Court of New Jersey, “. . . it is entirely reasonable

to forecast that the extension of the lifespan of existing

landfills, resuiting from the exclusion of out-of-state

waste, may be of crucial importance in preventing fur-

ther virgin wetlands or other undeveloped lands from

being devoted to landfill purposes.” (App. 43). In short,

there is a direct and immediate relationship between the

legislative objectives of preserving existing landfill space

for the maximum period possible and minimizing the

health and environmental dangers of landfills.”

1! Although this claim was nowhere made in their previous briefs

filed with the Court, appellants have now asserted that the motivation

for enactment of chapter 363 was economic rather than environmental.

This belated assertion is frivolous. The primary authority for the

' assertion is a press release by the then Acting Governor which the

appellants apparently located in the archives of the New Jersey State

ha in Trenton, New Jersey. Initially, it should be noted that

this document is not part of the record. In any event, the part

(Footnote continued on following page)

44.

Therefore, the appellants have failed to set forth any

grounds for questioning the findings of the New Jersey

Legislature and Supreme Court of New Jersey that the

disposal of waste in landfills represents a present threat

to the health and environment of the inhabitants of New

Jersey.

It also is fully consistent with the Commerce Clause to

deal with this problem by taking reasonable steps to re-

duce the overall volume of waste being disposed on New

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

289 U.S. 92 (1933), the Court rejected a Commerce Clause

challenge to the denial by the Ohio Public Utilities Com-

mission of a certificate of convenience and necessity to

operate an interstate bus route based upon the fact that

the highway over which the service was to be conducted

was already overly congested. In a unanimous opinion

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

may require that no additional vehicle be admitted to the

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

to absolutely prevent the operation of the proposed new

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

(Footnote continued from preceding page)

of that document selectively quoted in the text is strikingly dif-

ferent from the full document, quoted in footnote 10 of appel-

lants’ brief, which leaves no doubt that the essential purpose of

the bill was protection of the New Jersey citizenry from the grave

environmental and health dangers caused by the land disposal of

waste. The quotes attributed to the sponsor of A-1132 and former

Governor Cahill on pp. 7-8 of appellants’ brief and the selections from

the Pereira deposition (App. 181-187) have been similarly pulled out

of context. Finally, a reading of the entire Basis and Background

Statement (App. 148-166), rather than simply the short passage

quoted by appellants, leaves no doubt that the essential objectives of

the State in the enactment of chapter 363 and the implementing regu-

lations was the protection of public health and the environment.

45

posed on a basic instrumentality of interstate commerce,

it follows a fortiori that the transportation into a state

of waste intended for dumping may be prohibited so as

to reduce the overall magnitude of an established public

health and environmental problem.

This case is similar in many respects to Hughes v.

Alexandria Scrap Corp., 426 U.S. 794 (1976). Hughes

involved the environmental hazard of disposing of aban-

doned automobiles; this case deals with the environmental

hazard of disposing of all forms of solid wastes. In

Hughes, the State of Maryland pursued its environmental

interests in part by a statutory system of bounties de-

signed to encourage the recycling of abandoned automo-

biles. To prevent state funds from being dissipated by

payments for automobiles abandoned in other states, it

enacted amendments which had the practical effect of

restricting the bounties to Maryland processors. This

made it economically impractical for out-of-state proc-

essors to compete with Maryland processors in the pur-

chase of abandoned automobiles from wreckers thereby

substantially reducing this form of interstate commerce.

The Court upheld this legislation essentially on the theory

that the payment of bounties by the State to further its

environmental interests was not the kind of action with

which the Commerce Clause is concerned. Since New

Jersey has pursued its environmental interests in limiting

the ruin of its land by landfill operations by prohibiting

the transportation into New Jersey for disposal of waste

originating out of state, rather than expending state

funds for this purpose, the subsidy rationale of Hughes

is not directly applicable. However, the underlying pur-

pose “. . . of protecting the State’s environment” (/d. at

809) is common to the two statutes, and there are a num-

ber of significant respects in which the New Jersey stat-

ute implicates the free market principles of the Commerce

46

Clause to a lesser extent than did the Maryland statute.

First, whereas the Maryland statute confers an economic

advantage upon Maryland processors to the detriment of

out-of-state processors, the New Jersey statute creates no

economic preference for local economic interests. On the

contrary, some of the appellants are New Jersey landfill

operators who claim that they will lose business as a

result of New Jersey’s effort to protect its environment.

Secondly, whereas the recycled scrap metal affected by

the Maryland statute was indisputably an appropriate

subject of interstate commerce, the New Jersey statute

does not affect any materials intended for re-cyeling but

rather is limited to the disposal of waste. Finally,

whereas it was cogently argued in Hughes that Mary-

land’s environmental interests could be pursued equally

effectively with less impact upon interstate commerce,

there is no reasonable alternative available to New Jersey

to reduce the overall quantity of waste being dumped

within its borders. Therefore, the exclusion of out-of-

state waste transported for disposal within New Jersey

is more clearly compatible with the free market objectives

of the Commerce Clause than the program of economic

subsidization for the recycling of abandoned automobiles

upheld in Hughes v. Alexandria Scrap Corp.

Finally, even if there were some doubt concerning the

compatibility of chapter 363 with the Commerce Clause,

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

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

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

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

with the regulations promulgated pursuant thereto prior to its effec-

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

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

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

47

that doubt would be put to rest by the fact that Congress

has recently enacted comprehensive legislation dealing

with the problems of solid waste disposal without under-

taking to force states to allow their land to be used for

the disposal of waste originating out of state. It is

firmly established that “Congress has . . . power to define

the distribution of power over interestate commerce.”

Panhandle Eastern Pipe Line Co. v. Public Service

Comm’n, 332 U.S. 507, 521 (1947). See also Prudential

Ins. Co. v. Benjamin, 328 U.S. 408 (1946); Parker v.

Brown, 317 U.S. 341 (1943); In re Rahrer, 140 U.S. 545

(1891). As discussed in greater detail in Point IJ, the

Resource Conservation and Recovery Act represents a

clear congressional determination that the problems of

waste disposal are primarily of local rather than national

concern, thus strongly supporting the conclusion that

waste disposal is a subject within the local police power

which does not implicate any substantial national interest

in the maintenance of an open economy. Furthermore,

the Act expressly recognizes that solid waste should only

be disposed on the land in accordance with careful gov-

ernmental planning and management at the state and local

level, thus supporting the conclusion that patterns of

waste disposed are too important to public health and the

environment to be left to the unregulated whims of the

marketplace. The Act thus reinforces the conclusion that

chapter 363 is consistent with the Commerce Clause.

The appellants, in seeking to avoid the line of cases

holding that the Commerce Clause does not prevent the

states from enacting legislation to protect the health,

safety and welfare of their citizens, rely on cases which

have no bearing upon the restrictions which the Com-

merce Clause places on the states, but deal instead with

the breadth of the power which the clause confers upon

48

Congress. See e.g. United States v. Pennsylvania Refuse

Removal Association, 242 F. Supp. 794 (E.D. Pa. 1965),

aff’d 357 F. 2d 806 (3rd Cir. 1966), cert. den. 384 U.S. 961

(1966). Thus, the Court has held that Congress has the

power under the Commerce Clause to enact legislation

prohibiting the interstate transportation of prostitutes

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

napped persons. Gooch v. United States, 297 U.S. 124

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

the Commerce Clause may be invoked to prevent action

by the states to combat these evils. Therefore, although

United States v. Bishop Processing Company, 287 F.

Supp. 624 (D. Md. 1968), aff’d 423 F.2d 469 (4th Cir.),

cert. den. 398 U.S. 904 (1970), recognized that the move-

ment of air pollutants across state lines provides an ade-

quate jurisdictional basis under the Commerce Clause for

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

et seq.), this does not mean that the Commerce Clause

would present an obstacle to the enactment of legislation

by New Jersey to prevent all of Pennsylvania’s air pol-

lution from being collected and shipped to New Jersey

for release on the property of a well-paid entrepreneur.

Similarly, if the ships in Huron Portland Cement vy. City

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

smoke which was produced while steaming the Great

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

nance prohibiting such a practice would not be struck

down by the Court. The cases dealing with the reach of

congressional power under the Commerce Clause are thus

inappropriately relied upon by the appellants. Cf. Doug-

las vy. Seacoast Products, Inc., 431 U.S. 265, 282 n. 17

(1977); Hipolite Egg Co. v. United States, 220 U.S. 45,

57-58 (1911).

The appellants also rely on the “natural resource” cases

to support their attack upon chapter 363. Pennsylvania v.

49

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

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

all dealt with statutes which attempted, as described in

Pennsylvania vy. West Virginia, “to regulate the inter-

state business to the advantage of the local customers.”

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

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

but not in others, and that restrictions upon interstate

commerce in resources would have an adverse impact upon

the national economy. See Oklahoma v. Kansas Nat. Gas

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

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

clear that disposal of waste presents immediate prob-

lems with respect to health and environment which were

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

these cases involve, under the analysis contained in H.P.

Hood &€ Sons v. DuMond, supra, state regulation to “. . .

constrict the flow of . . . commerce for [local] economic

advantage .. .”, not an attempt by the State “. . . to shel-

ter its people from menaces to their health or safety. .. .”

336 U.S. at 533.

It is also significant that Pennsylvania does not take

the same cavalier attitude towards the health and environ-

mental dangers of landfills manifested by Philadelphia’s

brief when the landfills are located on the Pennsylvania

side of the border. On the contrary, Pennsylvania law

leaves political subdivisions of that state free to exclude

waste originating outside of their boundaries. As stated

in the affidavit of the Commissioner of Streets of the City

of Philadelphia:

“13. Sanitary landfills in Pennsylvania are not

- public utilities. The Pennsylvania Department of

Environmental Resources has been legislatively em-

50

powered to regulate such facilities, but cannot com-

pel same to accept solid waste from any source

whatever.” (App. 221;'* See also App. 249-252).

The appellant Pennsylvania political subdivision is thus

in the anomalous position of invoking the Commerce

Clause as a sword to force New Jersey to accept its

waste in an effort to solve disposal problems caused by

the laws of its own state which allow the immediately

surrounding Pennsylvania political subdivisions to exclude

Philadelphia waste."* This circumstance serves to under-

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

preservation of an open national economy but an attempt

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

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

gation under the police power to provide for the disposal

of the waste of its inhabitants. Clason v. Indiana, supra.

13 By contrast, New Jersey has comprehensive legislation regulat-

ing disposal of waste which prohibits one political subdivision from

excluding solid waste originating in another political subdivision.

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

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

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

190, 314 A2d 65 (1974).

14 As in Pennsylvania, the majority of states permit local political

subdivisions to prohibit the disposal of waste originating outside of

their boundaries. Since such local ordinances may be effectively

used to exclude waste originating out of state, the statement in ap-

pellants’ brief to the effect that only seven states prohibit the disposal

of waste originating out of state (appellants’ brief, at 33, n. 26) is

quite misleading. In fact, the need for such provisions probably only

arises in states such as New Jersey which have enacted legislation

providing for intrastate regional waste disposal planning.

51

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

divisions, to dispose of waste in a manner harmful to

the inhabitants of another state have come before the

Court, it has not been the disposing states which have

sought to invoke the Commerce Clause as a license for the

exportation of their waste problems, but rather the recip-

ient states that have brought original actions, often suc-

cessfully, against the disposing states to prevent actions

harmful to their health and environment. See, e.g., [illinois

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

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

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

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

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

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

Tennessee Copper Co., swpra, in granting an injunction

to prevent a Tennessee company from discharging noxious

gas from its factory into Georgia, appropriately noted

that:

“It is a fair and reasonable demand on the part

of a sovereign that the air over its territory should

not be polluted on a great scale by sulfurous acid

gas, that the forests on its mountains, be they

better or worse, and whatever domestic destruction

they have suffered, should not be further destroyed

or threatened by the act of persons beyond its

control, that the crops and orchards should not be

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

238.

If conduct offensive to New Jersey took place solely in

Pennsylvania as, hypothetically, by the appellants pro-

jecting their waste across the Delaware River into New

Jersey, it would require such an action for New Jersey

to protect the interests of its inhabitants. Hewever, since

52

the actual method of the disposal of Pennsylvania waste

in New Jersey involves conduct within the jurisdiction of

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

through prohibitory legislation. In any event, the point

is that actions by one state which adversely affect the

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

ceived to be protected by the Commerce Clause.

In sum, this case simply does not involve the national

interest in the maintenance of an open economy which

the Commerce Clause was designed to protect. Rather, it

involves the fundamental responsibility of a state to

provide for the disposal of waste generated by its inhabi-

tants with the least possible adverse impact upon health,

the environment and land use. Therefore, the Court

should affirm the conclusion of the Supreme Court of New

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

disposal site for waste generated within a political sub-

division of another state.

53

POINT III

The record before the Supreme Court of New Jersey

provided a reasonable basis for sustaining the legis-

lative finding that the public health and environmen-

tal problems caused by landfills are exacerbated by

forcing New Jersey to accept waste generated out of

state and thus there was no need for a plenary hear-

ing before the trial court.

Appellants’ final argument is that the Supreme Court

of New Jersey somehow thwarted their efforts to develop

a full record and thereby denied them due process of law.

This contention is frivolous.

It was appellants’ trial strategy which determined the

course of proceedings in the state courts. Soon after the

filing of their complaint, the appellants moved for sum-

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

emption and discrimination against interstate commerce

... (App. 189) and the State cross-moved for sum-

mary judgment. Thus the essential thesis upon which the

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

less of the impact upon public health and the environ-

ment, if New Jersey permitted the dumping in landfills of

waste originating within the state, it was also obligated

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

for dumping in its landfills. On the appeal by the State

to the Supreme Court of New Jersey, appellants again

essentially relied upon the thesis that chapter 363 vio-

lated the Commerce Clause by “discriminating” against

waste originating out of state. No serious question was

raised as to the validity of legislative findings that en-

vironmental degradation was being aggravated by the

dumping in New Jersey of wastes originating out of state.

Nor did the appellants pursue, as alternative grounds

54

for affirmance, any of the other legal theories which had

been projected. in shot gun form in their original com-

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

New Jersey had issued its opinion upholding the consti-

tutionality of chapter 363 that the appellants, on a motion

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

cerning the finality of the judgment (App. 216-218). The

Supreme Court of New Jersey, over the strenuous objec-

tions of the State, granted this motion for remand “.. .

for such further proceedings, if any, that that court may

deem appropriate .. .” (App. 299). Therefore, assuming

that any facts remained to be heard, the appellants were

given an opportunity to develop those facts. However,

the appellants deliberately elected not to proceed before

the trial court and instead to enter into a consent dis-

missal with prejudice. As conceded by counsel for appel-

lants at the prior oral argument before the Court, the

appellants thus waived any right they might have had to

pursue other counts of their original complaint (Tran-

seript, p. 25).

There is, therefore, absolutely no factual basis for the

appellants’ contention that they were denied due process

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

'5 It is well established under New Jersey practice that a judgment

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

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

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

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

judicial administration that all aspects of a controversy should be

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

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

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

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

on one of several alternate theories should present any theory which

might suppor! the judgment to an appellate court.

55

Rather, the appellants properly may be bound to the

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

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

152 (1902) in a related context:

“The accused seems to have been content to rest his

defense upon such grounds as arose upon the face

of the local statute, without reference to any evi-

dence bearing upon the reasonableness or unreason-

ableness of the particular methods adopted by the

state to protect its domestic animals. He seems to

have been willing to risk the case upon the simple

proposition—based upon the words of the state en-

actment and upon the act of Congress, reinforced

by certain regulations made by the Agricultural

Department—that the local statute was inconsistent

with that act, and with the general power of Con-

gress to regulate interstate commerce.

“As therefore, the statute . .. only prescribes

certain methods to protect the domestic animals

of Colorado from contact with live stock coming

from that territory between certain dates, and as

those methods have been devised by the state under

the power to protect the property of its people from

injury, and do not appear upon their face to be

unreasonable, we must, in the absence of evidence

showing the contrary, assume that they are appro-

priate to the object which the state is entitled to

accomplish.”

Appellants’ explanation for their failure to pursue the

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

injunction against the effectiveness of chapter 363 and,

since the Supreme Court of New Jersey had foreclosed

the grant of that relief in the state system, it was not

56

in their strategic best interest to continue with state

court proceedings. However, appellants’ strategic situa-

tion did not differ from that of any other party who has

been denied preliminary injunctive relief by a state court,

since the right of appeal from the state courts to the

Supreme Court of the United States is limited under 28

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

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

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

Court of the United States only from final judgments,

would be subject to attack on due process grounds. The

Court therefore should reject the appellants’ attempt to

characterize the end result of their own procedural

maneuvering as a denial of due process by the Supreme

Court of New Jersey.

Most importantly, even apart from the fact that it was

appellants’ trial strategy which determined the course of

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

preme Court of New Jersey based its decision upon a

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

preme Court of New Jersey had before it the Basis and

Background Statement of the New Jersey Department

of Environmental Protection, the report of the State of

New Jersey County and Municipal Government Commis-

sion entitled Solid Waste: A Coordinated Approach

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

of Solid Waste Management and of course the court’s

own findings in prior proceedings. These materials snowed

a reasonable basis for the legislative findings that the

disposal of waste causes environmental and public health

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

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

state increases the overall volume of waste dumped within

the state and thereby exacerbates the state’s solid waste

disposal problems. The New Jersey Legislature’s con-

57

clusions as to the dangers from solid waste disposal are

re-inforced by additional documentary materials of which

the Court may take judicial notice and the findings of

Congress. All of these sources provide a reasonable basis

for sustaining the judgment of the New Jersey Legisla-

ture in banning the dumping within New Jersey of waste

originating out of state. Evco vy. Jones, supra; Local

Union No. 10 v. Graham, supra; Welch v. Swasey, supra.

The mere fact that an opinion may have been expressed

by appellants that landfills can be operated without dam-

age to public health and the environment does not give

rise to a material contested issue of adjudicative fact

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

lature is not subject to invalidation simply on the possi-

bility that, after a contest between expert witnesses, a

court may conclude that the experts attacking the legis-

lative judgment have made the more persuasive case. As

the Court stated in South Carolina State Highway Dep’t

vy. Barnwell Bros., supra, at 191-192:

“(CJourts do not sit as legislatures, either state

or national. They cannot act as Congress does

when, after weighing all the conflicting interests,

state and national, it determines when and how

much the state regulatory power shall yield to the

larger interests of a national commerce.

“Since the adoption of one weight or width regu-

lation, rather than another, is a legislative not a

judicial choice, its constitutionality is not to be

determined by weighing in the judicial scales the

merits of the legislative choice and rejecting it if

the weight of evidence presented in court appears

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

tive judgment it is presumed to be supported by

58

facts known to the legislature unless facts judicially

known or proved preclude that possibility. Hence,

in reviewing the present determination we examine

the record, not to see whether the findings of the

court below are supported by evidence, but to as-

certain upon the whole record whether it is pos-

sible to say that the legislative choice is without

rational basis.”

The same principles of judicial restraint were expressed

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

297, 303-304 (1918):

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

tended to be used ‘be debatable, the legislature is

entitled to its own judgment, and that judgment

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

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

‘upon the issue which the legislature has decided.’

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

to the inquiry is that the provisions are of a kind

familiar to legislation and often sustained, and that

it is impossible for this court to say that they

might not be believed to be necessary in order to

accomplish the desired ends.”

See also Hughes vy. Alexandria Scrap Corp., supra, 426

U.S. at 812-814. Similarly, since the record in the present

case contains adequate support for the legislative find-

ing that the exclusion from New Jersey of waste orig-

inating out of state reasonably would serve to protect

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

basis for holding trial proceedings even if the appellants

had not deliberately declined to avail themselves of this

opportunity.

Finally, it should be noted that if any appellant landfill

operator really were in a position to establish that it could

conduct a disposal operation for waste originating out of

state without threat to the health, safety and welfare of

New Jersey citizens, it could obtain a further exemption

from the prohibitory impact of chapter 363. The statute

confers broad power upon the Commissioner of Environ-

mental Protection to permit waste originating out of state

to be brought into the State where he determines that

this can be done “. . . without endangering the public

health, safety and welfare. ...” If any party were able to

show that any exemptions from the prohibition against

dumping waste originating out of state could be adopted

“ . . without endangering the public health, safety and

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

would extend the scope of the existing exemptions. More-

over, under the broad principles of judicial reviewability

of administrative actions which exist in New Jersey (see

In re Senior Appeals Examiners, 60 N.J. 356, 290 A. 2d

129 (1972)) if the Commissioner in exercising his power

under the law were “arbitrary, unreasonable and capri-

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

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

pellants have placed this matter before the Court, it

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

Legislature and the Supreme Court of New Jersey, “. ..

that the environment continues to be threatened by the

treatment and disposal of waste which originated or was

collected outside of the State, and that the public health,

safety and welfare require that the treatment and dis-

posal within this State of all wastes generated outside of

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

the record is fully adequate to sustain the constitution-

ality of chapter 363.

60

CONCLUSION

It is respectfully submitted that for the foregoing

reasons the judgment of the Supreme Court of New

Jersey should be affirmed.

Joun J. DEGNAN

Attorney General of New Jersey

Attorney for Appellees, State of

New Jersey, Department of

Environmental Protection of

the State of New Jersey and

Commissioner of the Depart-

ment of Environmental Pro-

tection of the State of New

Jersey

STEPHEN SKILLMAN

Assistant Attorney General

Of Counsel and On the Brief

DeporaH Poritz

NatHan EDELSTEIN

Deputy Attorneys General

On the Brief