# Appellants Brief — Philadelphia v. New Jersey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2535%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Appellants Brief - **Published:** January 1, 1978 - **Citation:** 437 U.S. 617 ## Text 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