Amicus Curiae Brief — C & a Carbone, Inc. v. Clarkstown

C&A Carsone, Inc.,

RECYCLING PRODUCTS OF ROCKLAND, INC.,

C & C Rea. ty, Inc., and

ANGELO CARBONE,

Petitioners,

v.

TOWN. OF CLARKSTOWN,

Respondent.

On Wait ot Certiotant to the Supreme Court,

Division, Second Department

ated ieee oe ew Foe

STAVAILABLE COPY,

TABLE OF CONTENTS

SUMMARY OF ARGUMENT ...........................0-.cecceseeee

TE seiicnceiariititie dah titiahicnTmiianrsapbllinibibienihininasio

I.

II.

IIT.

PUBLIC SERVICE WASTE COLLECTION

AND REMOVAL SYSTEMS ARE TRADI-

TIONAL FUNCTIONS OF LOCAL GOVERN-

MENT, JUSTIFIED AS HARM PREVEN-

TION MEASURES UNDER THE TRADI-

TIONAL POLICE POWER OF THE STATES..

CLARKSTOWN’S ORDINANCE IS_ SUB-

STANTIALLY SIMILAR TO REGULATIONS

ALREADY UPHELD BY THIS COURT

AGAINST TAKINGS AND DUE PROCESS

CHALLENGES ....................... sainilanienipantiianseetaiiaiictie

FOR THE PURPOSE OF ANALYSIS, THE

MSW WASTE INDUSTRY MAY BE DI-

VIDED INTO DISCRETE SEGMENTS .........

CARBONE’S RECYCLING OR RESOURCE

RECOVERY OPERATION IS STRICTLY

LOCAL AND DOES NOT IMPACT INTER-

EE I aide ninnsintgDitsncsaslitintntcbsitilinaiiibiontas

THE MOTIVES OF INDIVIDUAL MEMBERS

OF LEGISLATIVE BODIES IN PASSING

LAWS ARE NOT USEFUL EXTRINSIC AIDS

TO CONSTRUCTION, AND ARE _ UNI-

FORMLY DISREGARDED FOR INTERPRE-

er I csiitetiansncinisscttncrsbnticcsnaniintaisincttine

IID Sincidsninicinemaniscabesecintnsnnestnnmincabebainiaseines iadeas

APPENDIX A........ weieniiieeediaiens saasiaetenilibtentanisidtesiteentibonasibiaiiti

IIE SP ccicerntrenetinenidicncinpemnineniianieennmiaieieinnss

10

ii

TABLE OF AUTHORITIES

CASES Page

Aldridge v. Williams, 3 How (44 U.S.) 9 (1845)... 12

California Reduction Co. v. Sanitary Works, 199

ie 2) = 8,9, 13

City of Philadelphia v. New Jersey, 487 U.S. 617

CRIED ccccnsesvervieessssccttnnisininiian 6, 7,9

Duplex Printing Co. v. Deering, 254 U.S. 448

| Ee 12

Fort Gratiot Sanitary Landfill, Inc. v. Michigan

Dept. of Nat. Res., 112 S.Ct. 2019 (1992), 119

L.Ed.2d 121, Th “OMY. cntcictsssinmiamelieamen 7

Gardner v. Michigan, 199 U.S. 235 (1905) -........... 8,13

H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525

|, SEE SR 7

Hipolite Egg Co. v. U.S., 220 US. 45 (1911) ees 11

Illinois General Elec. Co., 683 F.2d 206 (CA 1982),

cert. denied, 461 U.S. 918 ........2.....22222.. eee cceeneeeee 13

Waring v. Mobile, 8 Wall. (75 U.S.) 110 (1869) .... 11

STATUTES

Ada, Gale 3 TE-GRIAGE wcnccnttniinmimeen 1

OTHER AUTHORITIES

U.S. Constitution, Amend. 5 & 14 00000000000. 8

McQuillin, Municipal Corporations, § 24.250 (3rd

TD sccoccconstcniesateaeamasaamaanen 6

Sutherland Statutory Construction '§ 48. 17 _

BE) <iccocseens . 12

In THE

Supreme Court of the United States

OcToBer TERM, 1993 '

No. 92-1402

C & A CARBONE, INC.,

RECYCLING PRODUCTS OF ROCKLAND, INC.,

C &C REALTY, INC., and

ANGELO CARBONE,

. Petitioners,

TOWN OF CLARKSTOWN,

Respondent.

On Writ of Certiorari to the Supreme Court,

Appellate Division, Second Department

of the State of New York

BRIEF AMICUS CURIAE OF THE

SOLID WASTE DISPOSAL AUTHORITY

OF THE CITY OF HUNTSVILLE, ALABAMA

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Solid Waste Disposal Authority of the City of

Huntsville, located in Madison County, Alabama (here-

inafter “the Authority”), is a public corporation of the

State of Alabama organized pursuant to the Solid Waste

Disposal Authority Act of the State, Code of Alabama,

1975, § 11-89A-01, et seq. The Authority provides waste

disposal services under contract with the City of Hunts-

ville, a municipal corporation within the State of Ala-

bama (hereinafter the “City”), as an integral part of the

City’s solid waste collection and disposal system. Three

2

basic documents define the functions of the Authority.

The documents are the City Solid Waste Ordinance es-

tablishing a comprehensive waste collection and disposal

system within the City requiring mandatory delivery of

all locally produced Municipal Solid Waste (MSW) to

the system’; the City Delivery Agreement under which

the City is required (until the year 2014) to deliver or

cause to be delivered to the Authority all acceptable waste

(acceptable waste excludes certain hazardous waste)

generated or occurring on local premises within the City;

and the Army Contract under which the U.S. Army (the

“Army”) is obligated (until the year 2014) to purchase

steam from the Authority, to be used to heat and cool (by

steam operated compressors) Redstone Arsenal Military

Reservation, located adjacent to the City. The Authority

receives revenue from the sale of steam under the Army

Contract, from tipping fees paid by the City, and from

tipping fees paid by City franchised or licensed haulers

who are required by the Ordinance as a condition of their

license or franchise, to deliver all acceptable waste to the

Authority *. The Authority owns and operates a 695 ton

per day Municipal Solid Waste (MSW) incinerator. The

incinerator burns MSW, sewage sludge, and landfill gas

to produce the steam which is delivered to the Army

under the Army Contract. The Authority owns and

operates an MSW ash monofill for the disposal of MSW

combustor ash residue; an inert landfill for the disposal

of inert waste such as tree limbs and construction debris;

1 Comprehensive Waste Control or Management measures are

frequently referenced to as ‘flow control” ordinances or regulations,

particularly in connection with public financings of facilities. The

concern in the financial markets is with the stream of revenue,

whereas, such measures are frequently noth ng more than compre-

hensive police power regulations of private premises, enacted pur-

suant to the harm prevention concern of local government under the

traditional police power.

2 The Solid Waste Ordinance of the City of Huntsville is included

herei: as Appendix A.

3

and a putrescible landfill for the disposal of any putres-

cible waste not burned in the incinerator or which is at

any time in excess of incinerator capacity. The Authority

also operates a voluntary curbside single family household

recycling collection program which removes brown, green,

clear, and blue glass; plastic soft drink bottles and milk

jugs; aluminum and steel cans; newspapers and maga-

zines; used motor oil; and dry cell household batteries,

from the MSW wastestream, before it is removed from

private premises by City haulers. The Authority operates

a voluntary Household Hazardous Waste Collection Pro-

gram under contract with the Madison County Health

Department, targeted for removal of a portion of certain

household hazardous material from the MSW _ wasie-

stream. Included in the material sought to be separated

from the MSW _ wastestream through the Household

Hazardous Waste Program are paints and related prod-

ucts; pesticides, insecticides and herbicides; household

cleaners and solvents; automotive batteries and petroleum

products; acids; and pool and photographic chemicals.

The Authority also operates a White Goods Recycling

Program which removes appliances such as old refrigera-

tors and stoves from the wastestream for scrap value.

The Authority accepts all MSW generated by the publicly

operated Madison County Collection System as well.

Madison County also operates a voluntary recycling pro-

gram, and participates with the local Health Department

in the Household Hazardous Waste Program. It is fair

to characterize the program resulting from the City-

Authority agreement as a long term comprehensive MSW

Wastestream Management Program serving the City of

Huntsville and Madison County.

The City Solid Waste Ordinance is similar in all of

its substantive terms to the Clarkstown Ordinance.

Neither the Huntsville Ordinance or the Agreements man-

date the disposal site of waste delivered to the System.

The Authority is free, under the Ordinance and under the

4

Agreements, to dispose of waste at out of state disposal

sites if it chooses.

In order to finance the acquisition and construction of

its waste disposal system, the Authority has issued its

Municipal Revenue Bonds. The face amount of Author-

ity debt now outstanding from the issuance of bonds is

$121,045,000. Certain excerpts from the Final Official

Statement of the Authority used in connection with the

sale of its 1990 Bonds are set out in Appendix B, and

contain descriptions of the basic documents with respect

to the Authority’s Waste Disposal System. Not surpris-

ingly, the term “Flow Control” is used to characterize

the City’s Solid Waste Ordinance, because that is the

language of the financial market.

The Authority thus has a vital interest in the outcome

of the present case. The availability of funds for the pay-

ment of its outstanding bonds depends upon its receipt of

the proceeds from the sale of steam to the Army, and

from the receipt of ail tipping fees with respect to the

operation by the City of its Waste Collection and Dis-

posal System. The ability of the Authority to operate a

comprehensively managed solid waste disposal system for

the City of Huntsville, and to thereby protect the Public

Health and the environment, as well as to reduce the

City’s contingent liability for cleanup of any contamina-

tion which might be released into the environment from

waste handled through its system, wherever disposed or

deposited,* depends upon the validity and enforceability

under state and federal law of the wastestream security

measure, the Solid Waste Ordinance. The City, by adop-

tion of the Solid Waste Ordinance and the Agreements,

has determined that a regulation which creates a managed

wastestream and which displaces competition with monop-

® Deposited is the better word. Except for the term “Political

Science,” surely the term “Waste Disposal” has got to be the

ultimate oxymoron, for indeed there is no “Disposal” in “Waste

Disposal,” just as there is no “Science” in “Political Science.”

5

oly public service is necessary to prevent the occurrence

of nuisances on private premises and to protect the pub-

lic health and the environment.

SUMMARY OF ARGUMENT

There is no market in MSW waste residue in Clarks-

town. Clarkstown has elected to address its legitimate

regulatory concerns with respect to the sanitation of pri-

vate premises in Clarkstown by establishing a comprehen-

sive public waste collection and removal system. The fact

that Clarkstown’s Ordinance requires mandatory delivery

of useless and noisome waste to the established system

does not transform Clarkstown from a health and safety

regulator into either a market participant or a market reg-

ulator. Clarkstown instead is nothing more than a police

power regulator and public service provider. The thrust

of Clarkstown’s Ordinance and of its system is the regu-

lation of premises in Clarkstown and the prevention of

the nuisances and harm that might result from the failure

to remove noisome waste from those premises, The man-

datory delivery provisions of Clarkstown’s Ordinance force

the occupants and users of premises in Clarkstown to

avoid the creation of nuisances upon such premises, and

in effect to do nothing more than perform their common

law duty not to cause harm to their neighbors or to the

community. The potential risks from any indiscriminate

disposal of waste occurring or being generated upon pri-

vate premises in Clarkstown represents potential harm to

the public health, public safety, and to the environment

of Clarkstown (and elsewhere). The potential release into

the general environment of noisome and hazardous mate-

rial normally found in the MSW wastestream in Clarks-

town and elsewhere is a legitimate concern of Clarkstown.

Clarkstown, in the exercise of its legitimate legislative dis-

cretion, has elected to create a comprehensive waste col-

lection and removal system. The useless waste residue

resulting from the operation of Carbone’s legitimate re-

cycling business on its private premises in Clarkstown is

6

not different in kind from similar material generated upon

the various other private premises in Clarkstown. The

operation of Carbone’s Recyclery is local, and the con-

cern of Clarkstown with the efficient collection of the

useless MSW waste residue is local.

A state or local police power regulation which is other-

wise valid, creating a comprehensive collection and re-

moval system as a means of addressing legitimate concerns

for sanitation of local premises, should be considered

strictly local, and should not be measured by this Court

against the strictures of the Dormant Commerce Clause.

ARGUMENT

I. PUBLIC SERVICE WASTE COLLECTION AND

REMOVAL SYSTEMS ARE TRADITIONAL FUNC-

TIONS OF LOCAL GOVERNMENT, JUSTIFIED AS

HARM PREVENTION MEASURES UNDER THE

TRADITIONAL POLICE POWER OF THE STATES.

“The gathering of garbage is not a trade, business, or

occupation, but it is a public duty, to be performed by a

city in a manner that will best promote the health of the

inhabitants. Municipal corporations frequently perform

the service of collecting and removing all garbage, trash,

and similar substances, and prohibit any other persons

from engaging in that business. . . . (A municipality)

may provide that all scavenger work within it be done by

a person appointed by it and prohibit anyone else from

engaging in such work.” McQuillin, Municipal Corpora-

tions, § 24.250 (3rd Ed.). The collection and removal

of all noisome waste occurring or generated upon private

premises is a traditional function of local government,

justified under the harm prevention aspect of the police

power. The harm sought to be prevented here and the

legitimate local governmental concern of Clarkstown is

the contamination of local premises in Clarkstown. In

that respect this case is unlike City of Philadelphia v. New

Jersey, 437 U.S. 617 (1978), where the harm preven-

le

7

tion claimed as a justification for the regulation arose

“. . . after its disposal in landfill sites.” Jd. at 629. It

was conceded by New Jersey that “there (was) no basis

to distinguish out-of-state waste from domestic waste.”

Id at 629.

Mandatory participation in waste collection systems,

such as is required by the Clarkstown Ordinance, is jus-

tified under the police power as nothing more than a

requirement that each owner of premises meet his re-

sponsibility not to harm his neighbor or the public in-

terest by creating and maintaining the nuisance which

would necessarily result from his failure to carry out his

or her common law duty of harm prevention.

This is not a case of Clarkstown using the guise of a

police power regulation to advance its own commercial

interest. There is no commercial market with respect to

waste, such as the useless residue generated upon Car-

bone’s premises, until Clarkstown places the consolidated

waste removed from the various premises in Clarkstown

into the market. As pointed out in Fort Gratiot v. Mich-

igan, U.S. , 112 S. Ct. 2019, 2023 (1992):

... the “negative” or “dormant” aspect of the Com-

merce Clause prohibits states from advanc[ing] their

own COMMERCIAL INTEREST by curtailing the

movement of articles of commerce, H.P. Hood &

Sons, Inc. v. DuMond, 336 U.S. 525 (1949) (em-

phasis added).

The first point at which Clarkstown’s MSW waste becomes

a part of any waste market is when it is carried from

Clarkstown’s transfer station to a disposal site.

L. 19

| 1979

|. 1979

| 1980

L. 1YsO

L. 1Y8O

| 1980

L. 1980,

L. 19S],

L. 1982

| ix 4

| Lx

L. 1983,

L. 1934,

L. 1985,

L. 1985

L. 1985,

| IOS.

L. 1986,

L. 1986,

L. 1986,

L. 1987,

L. 1987,

L. 1987,

L. 1987

L. 1988,

L. 1988,

L. 19338,

L. 1933,

L. 1988,

L. 1989,

| LYRY.

New York

=

x

si

Ay

sy

Vill

AG

a L991, \ 469

L. 1991, ¢c. 540

L. 1991,c. 569

L. 1991, c. 631

L. 1992, c. 252

L. 1992, c. 350

L. 1992, c. 369

1992, c. 391

1992, c. 567

1992,

Other States

Colo. Rev. Stat. § 30-20-107

Conn. Gen. Stat. § 22A-220,/

Del. Code Ann. tit

DC. Code § 6-507

Fla. Stat. §§ 403.7063, 403.7

Haw. Rev. Stat. § 340A-3(a

lll. Ann. Stat. c. 34 P 5-104

Ind. Code §§ 36-9-31-3 & 4

lowa Code § 28G.4

La. Rev. Stat. 30:2307 (9)

Me. Rev. Stat. Ann. tit. 38,

Supp. 1991)

Minn. Stat. § 1158.80 (1990 and Supp

Miss. Code Ann. § 17-17-319

Mo. Rev. Stat. § 260.202

N.C. Gen. Stat. § 130A-294

1 § 6406 (31) |

“

‘S

1304-D (West

13 (1986 and Supp

199] )

9

1989 and

1Q,

19Q))

N.D. Cent. Code §§ 23-29-06 (6) & (8)

N.J. Stat. Ann. §§ 13:1E-22, 48:13A

Ohio Rev. Code Ann. § 343.01 (H)(2)

Or. Rev. Stat, § 268.317 (3) & (4)

Pa. Stat. Ann. tit. 53, § 4000.303(¢)

R I Gen Laws § 23-19-10(40)

Ienn. Code Ann. 6& 211-814

Vt. Stat. Ann. tit. 24, §§ 2203a, 2203b

19 V.I.C. § 15701

Va. Code Ann. § 15.1-28.01

Wash. Rev. Code §§ 36.58.040, 3

W. Va. Code S 240-2-Ih

Wis. Stat. § 159.13 (3), (11)

Regulations

Federal

———s

43 Fed. Reg. 26611 (1978)

56 Fed. Reg. 51009 (1991)

40 C.F.R. § 503

40 C FR. § 256.30

40 C.F.R. § 256.31

New York State

6 NYCRR Part 360

X]

PAGE

Legislative Materials

S. Rep. No. 988, 94th Cong., 2d Sess. (1976).......... an

Interstate Transport and Disposal of Solid Waste: Hearing

Before the Subcomm. on Environmental Protection of

the Senate Comm. on Environment and Public Works.

101st Cong., 2d Sess. (1990)................. aaa oe

S. 2877, 102d Cong., 2d Sess. (1992)....... heeds 29

H.R. Rep. No. 1491, 94th Cong., 2d Sess. (1976),

reprinted in 1976 U.S.C.C.A.N. at 6238.......4-7, 11, 13

Staff of the House Subcomm. on Transportation and

Commerce of the House Comm. on Interstate and

Foreign Commerce, 94th Cong., 2d Sess., Materials

Relating to the Resource Conservation and Recovery

Act of 1976. Sp AT a Leen | “ 4

Miscellaneous

Brunner, Hubbard, Keller & Newton, Closing Open

ramps CEA TST)... cnc cccccccces 5

Ferrand, Records of the Federal Convention............ . 29

S. Lieberman, Abandoned Trash in West Virginia is

Traced to Local Carbone Site, Rockland Journal-

PO, Fy Gs COS OD oc ccc vscccesccesccesccecse OM

D. McClendon, Radioactive Waste 1s Held in Limbo,

Rockland Journal-News, May 17, 1993 at Bl.... 24

Mulvey, “Cost Guidelines for the Recycling Option,”

printed in, Selected Papers from the 1989 Conference

on Solid Waste Management and Materials Policy

(New York State Legislative Commission on Solid

Waste Management, 1989)............. Lekhunsivke Oe

[

[

X11

PAGI

S. Congress, Office of Technology Assessment, Facing

America’s Trash: What Next for Municipal Solid

Waste (1989) 10

S. Environmental Protection Agency, The Solid Waste

Dilemma: An Agenda For Action (1989) ..10, 12, 13, 28

Office of Solid Waste, U.S. Environmental! Protection

Agency Characterization of Municipal Solid Waste

in the United States: 1990 Update (1990) 4

Ottice of Solid Waste, U.S. Environmental Protection

Agency Characterization of Municipal Solid Waste

in the United States: 1992 Update (1992) 4,14

INTEREST OF AMICI CURIAE

Amici curiae, the State of New York, the City of New York,

and the New York State Association of County Attorneys, sub-

mit this brief in support of respondent Town of Clarkstown

seeking affirmance of the lower court’s order in C & A Car-

bone, Inc. v. Town of Clarkstown, 182 A.D.2d 213, 587

N.Y.S.2d 681 (N.Y. App. Div. 1992), leave to appeal denied, 80

N.Y.2d 760. 591 N.Y.S.2d (N.Y. 1992).

Flow control ordinances are a vital component of solid waste

management throughout New York. New York State has autho-

rized 38 localities and solid waste management units to enact

flow control laws so that they can fulfill their responsibility for

safe, environmentally-sound management of solid waste. New

York City may impose flow control to implement a large-scale

food composting program. Many counties throughou' the State

already rely on flow control as an integral part of their solid

waste management plans.

Petitioners ask the Court to invalidate a flow control ordi-

nance that allows a local government to {u. fill its obligation to

protect the environment and the health of its citizens by man-

aging garbage safely and efficiently. Petitioners’ argument, if

accepted, will have a devastating impact on the ability of states

and localities to address their serious solid waste problems.

There are many types of flow control, each promoting com-

pelling government interests. The flow control ordinance at

issue in the instant case, for example, requires that all waste

from the Town of Clarkstown be delivered to a transfer station.

Other flow control ordinances require delivery of recyclable or

compostable materials to a central location. For example, New

York City is considering a composting program for food wastes

from food stores, restaurants, and institutions. The New York

City Health and Hospital Corporation is also developing a pro-

gram to recycle the plastic components of regulated medical

waste. If promulgated, flow control regulations would enable

both of these programs to Cirect recoverable wastes to

2

recycling or composting facilities developed by the City. Such

programs also will reduce the amount of waste disposed of

through the less-preferred method of landfilling.

Amici urge the Court to recognize the extremely important

public policy goals that are served by the use of various flow

controls to address the solid waste crisis and to hold that flow

control—as anticipated by Congress in RCRA and as already

implemented by more than half the States in the nation-—is a

constitutionally permissible exercise of the local police power

justified by the compelling health and safety benefits that it

provides.

SUMMARY OF ARGUMENT

A growing number of states and localities ensure environ-

mentally-sound disposal by directing garbage to a specified

solid waste management facility, one which can safely separate

or dispose of garbage. Such direction or “flow control” ordi-

nances promote many compelling interests. They: 1) contribute

to recycling and energy recovery; 2) reduce solid waste; 3)

counter the commingling of hazardous waste; 4) provide a sta-

ble financial base for state-of-the-art solid waste management

facilities and technologies; 5) ensure that garbage is handled

and disposed at an environmentally-sound facility; 6) reduce

truck traffic; 7) minimize CERCLA clean-up cost liability; and

8) provide necessary and accurate data on which to base an

effective management plan. And while such ordinances pro-

mote modern solid waste management strategies, municipal

direction of garbage is not a new idea; its history dates back 90

years.

Given these compelling benefits and the responsibility of

state and local governments to ensure the safe disposal of

garbage and to protect health and environment, flow control

ordinances, including the Clarkstown ordinance, do not violate

the Commerce Clause. In light of these benefits, the Ordi-

nance’s evenhanded nature, and the burdens imposed on Town

3

residents, the Court should apply the balancing test set forth in

Pike v. Bruce Church and Minnesota v. Clover Leaf Creamery.

Furthermore, given the absence of viable alternatives, the Ordi-

nance does not violate the Commerce Clause even under the

strict scrutiny test of Philadelphia v. New Jersey and Maine v.

Taylor.

FACTUAL AND STATUTORY BACKGROUND

In the midst of the bicentennial celebration of America’s

past, Congress recognized that the nation’s future was endan-

gered by serious health, safety, and environmental problems

resulting from garbage disposal, and enacted the Resource Con-

servation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et

seq. Recognizing that local governments historically had

responsibility for solid waste collection and disposal, RCRA

required States and localities to implement environmentally-

sound disposal practices. In turn, state and local governments

initiated various efforts to reduce the health and environmen-

tal hazards.

Waste collection and disposal is a quintessential local

responsibility. Consistent with their historic responsibility,

numerous localities across New York State have closed their

unsafe landfills, arranged for the construction of centrally-

located, state-of-the-art solid waste management facilities, and

directed that all garbage be delivered to those facilities.

Localities such as Clarkstown do not adopt flow control ordi-

nances in a vacuum. State, County, and Town solid waste man-

agement programs, of which flow control ordinances are but a

part, are the culmination of the growing scientific awareness of

the potential hazards associated with garbage disposal and the

development of federal and state solid waste regulations. In the

present case, it was only after the New York State Department

of Environmental Conservation (“DEC”) ordered Clarkstown

to close its landfill that the Town arranged for the construction

of the transfer station and required that all garbage be delivered

4

there. To properly understand Clarkstown's ordinance it is nec-

essary to ackriwwledge those hazards, the evoiution of envi-

ronmental laws governing waste disposal, and the benefits

secured by modem solid waste management facilities and flow

control ordinances.

A. GARBAGE CAN ENDANGt# HEALTH AND THE

ENVIRONMENT

Every day, Americans generate 500,000 tons of solid waste.

The national volume grew from 88 million tons per year in

1960 to nearly 200 million tons per year in 1990. During the

same time, per capita generation of municipal solid waste

increased from 2.7 pounds per person per day to 4.3 pounds.

The problem of ever-increasing volumes of garbage is com-

pounded by continually shrinking disposal capacity.' For exam-

ple, America’s fifty largest cities have exhausted or will soon

exhaust their landfill capacity, and in the next ten years, 80%

of the currently-operating landfills will close.’

Waste disposal can pose health and environmental hazards.

For example, decaying landfilled garbage produces leachate,

which contains various chemical clements and compounds,

including heavy metals, some of which are toxins, and volatile

organic compounds (“VOCs”). Oftentimes, leachate seeps into

surface or groundwater and can thereby degrade or ruin a

community's water supply. Groundwater pollution can have

dire and widespread consequences since nearly 50% of Amer-

icans depend on groundwater for drinking water.’ Such con-

: See Office of Solid Waste, U.S. Environmental Protection

Agency, Characterization of Municipal Solid Waste in the United States.

1990 Update, ES-9, ES-13 (1990); id., 1992 Update, ES-3 (1992).

* _S. Rep. No. 988, 94th Cong., 2d Sess. 1 (1976); H.R. Rep. No.

1491, 94th Cong., 2d Sess. 9 (1976), reprinted in 1976 U.S.C.C._A.N. at

6247; see Interstate Transport and Disposal of Solid Waste: Hearing

Before the Subcomm. on Environmental Protection of the Senate Comm

on Environment and Public Works, 10st Cong., 2d Sess. 2 (1990).

% See Staff of the House Subcomm. on Transportation and Com.

merce of the House Comm. on Interstate and Foreign Commerce, 94th

5

tamination requires extensive and expensive cleanup measures.

Sometimes it is irreversible.‘

In the present case, leachate from Clarkstown’s landfill

migrated into the surrounding ground and surface water, and

“present(ed] a significant threat to the public health [and] the

environment” according to the DEC. R. 203. The Clarkstown

site is not unique. For instance, the New York State Legislature

has required the closure of all Long Island landfills without

double liners because they threaten to contaminate irreversibly

the aquifer that provides drinking water for the region's 2.5

million inhabitants. ECL § 27-0704(5); see 43 Fed. Reg. 26611

(1978) (EPA determination of vulnerability).

Decaying garbage also produces methane gas emissions. If

not properly managed, methane can ignite, killing people and

destroying buildings. H.R. Rep. 94-1491 at 37-8, reprinted in

1976 U.S.C.C.A.N. at 6275-6. The recent explosion at the Fris-

bee Avenue housing development in Albany demonstrates

methane’s potentially sinister consequences. Also, in March

1992, the fire from a methane explosion at the Camillus, New

York landfill took several weeks to extinguish.

in addition, fires at landfills can spew clouds of particulates

and incompletely burned gases and can contribute to human

respiratory diseases, darken the skies, cause additional surface

and groundwater contamination, and interfere with air and sur-

face transportation. Like methane explosions, landfill fires have

resulted in fatalities. H.R. Rep. 94-1491 at 37-8; see Brunner,

Hubbard, Keller & Newton, Closing Open Dumps 2 (EPA,

1971).

Cong., 2d Sess., Materials Relating lo the Resource Conservation and

Recovery Act of 1976, at 26, 39 (1976); H.R. Rep. No. 1491, 94th Cong.,

2d Sess. 89-90 (1976), reprinted in 1976 U.S.C.C.A.N. at 6325.

* Environmental Defense Fund, Inc. v. Costle, 439 F. Supp. 980,

986, n. 3 (E.D.N.Y. 1977) (noting that if Long Island's aquifer became

polluted “it would take as long as 3,000 years for [it] to be flushed

clean”).

6

Each of the above health and environmental dangers

increases geometrically when generators, haulers, or landfill

Operators improperly dump hazardous waste into municipal

solid waste landfills.° Faced with these hazards and given the

responsibility for protecting health and the environment, states

and localities now are constructing and upgrading solid waste

facilities to handle solid waste in an environmentally-sound

and reliable manner. Few would deny that “[t}he modern land-

fill is a technically complex engineering exercise that comes

replete with liners, leachate collection systems and highly reg-

ulated operating conditions.” Fort Gratiot Sanitary Landfill,

Inc. v. Michigan Dept. of Natural Resources, — U.S. —, —, 112

S.Ct. 2019, 2030 (1992) (Rehnquist, C.J., and Blackmun, J.,

dissenting); see 56 Fed. Reg. 51009 (1991). Compost opera-

tions, waste-to-energy facilities, recycling centers, and trans-

fer stations are similarly complex. See 40 C.F.R. § 503; 6 New

York Codes Rules and Regulations §§ 360-3, 360-4, 360-5,

360-11, 360-12.

B. FEDERAL & STATE ENVIRONMENTAL

REGULATION

1. The Resource Conservation and Recovery Act

Congress enacted RCRA, in part, to address the health and

environmental problems caused by unsafe solid waste disposal

facilities, unsound disposal practices, and weak regulation. Tra-

ditionally, responsibility for garbage collection and disposal

has been vested in state and local governments as part of their

general police powers. Under RCRA, states and localities

retain that responsibility. RCRA § 1002 (a)(4), 42 U.S.C.

§ 6901 (a)(4). Accordingly, one of RCRA’s central objectives

was to:

> See H.R. Rep. 94-1491 at 17-23, reprinted in 1976 U.S.C.C._AN.

at 6255-61 (containing specific examples from across the country of the

dumping of hazardous waste in landfills and the resulting damage caused

by migrating leachate).

7

provid(e]} technical and financial assistance to State and

local governments and interstate agencies for the devel-

opment of solid waste management plans (including

resource recovery and resource conservation systems)

which will promote improved solid waste management

techniques (including more effective organizational

arrangements), new and improved methods of collection,

separation, and recovery of solid waste, and environ-

mentally safe disposal of nonrecoverable residues.

RCRA § 1003, 42 U.S.C. § 6902 (emphasis added); see RCRA

§ 4001, 42 U.S.C. § 6941.

As part of the overall strategy to ensure recycling, energy

recovery, resource conservation, and environmentally-sound

disposal, Congress recognized the need for new, environmen-

tally-sound solid waste management facilities and required the

closure of unsafe landfills. RCRA § 4005, 42 U.S.C. § 6945.

Congress also recognized that guaranteed waste streams could

help finance innovative resource recovery facilities, such as

recycling, composting, and waste-to-energy facilities, and that

prohibitions against long-term agreements for supplying

garbage would forestall the construction of such facilities and

thereby threaten effective solid waste management planning.

H.R. Rep. 94-1491 at 34, reprinted in 1976 U.S.C.C.A.N. at

6272. To qualify for federal funding, cach state plan

(2). . . shall. . . prohibit the establishment of new open

dumps within the State and contain the requirement that

all solid waste (including solid waste originating in other

States. . .j) Shall be (A) utilized for resource recovery or

(B) disposed of in sanitary landfills. . . or otherwise dis-

posed of in an environmentally sound manner;

(5). . . shall provide that no local government within the

state shall be prohibited under state or local law from

entering into long-term contracts for the supply of solid

waste to resource recovery facilities... .

RCRA § 4003 (a)(2), (S) (emphasis added)®. By abolishing pro-

hibitions against long-term contracts, Congress freed local gov-

ermments to develop long-range plans and to conclude

long-term contracts for waste streams thereby encouraging

localities to move beyond mediocre, interim facilities. The

requirement that all solid waste within a state be recycled or

disposed of in a safe manner coupled with the ability to enter

into long-term contracts thus provided strong incentives for

local governments to control their waste streams and to develop

solid waste management facilities that provide a safe and long-

term solution to the solid waste crisis.

2. New York State’s Comprehensive Solid Waste

Management Statutes

Much of New York State's solid waste management law,

ECL Tithe 27, was enacted in response to RCRA.’ Like

Congress, the New York State Legislature found “that

unwanted residues of our society have polluted many of our

land and water resources, while at the same time depleting our

finite stock of natural resources.” L. 1980, c. 552, § 1. Con-

sistent with traditional responsibilities, the statute provides that

localities and counties have primary responsibility for solid

waste management. ECL §§ 27-0101(2); 27-0107; 27-0711.

Title 27 promotes the development of new, environmentally-

sound solid waste management facilities as well as the imple-

mentation of a comprehensive solid waste management plan in

accordance with RCRA. L. 1980, c. 552, § (1)(a). Also, the

Statute seeks to eliminate barriers and provide incentives for

long-term efficient solid waste management. L. 1980, c. 552,

° Subsection (a)(5) was amended by the Solid Waste Disposal Act

of 1980 to further ensure that states and localities faced no obstacles in

developing long-term commitments for recycling and resource recovery.

42 U.S.C. § 6943 (a)(5S).

’ _L. 1977, ¢. 425, § 6 and L. 1980, c. 552, § (1)(b)(2) both state

that New York’s solid waste legislation was enacted, in part, to conform

to RCRA. See also ECL § 27-0103.

9

§ (1)(b). Consistent with RCRA and EPA regulations, the New

York State Legislature established the following solid waste

management priorities:

(a) first, to reduce the amount of solid waste generated;

(b) second, to reuse material for the purpose for which it

was Originally intended or to recycle material that cannot

be reused;

(c) third, to recover, in an environmentally acceptable

manner, energy from solid waste that cannot be econom-

ically and technically reused or recycled;

(d) fourth, to dispose of solid waste that is not being

reused, recycled or from which energy is not being recov-

ered, by land burial or other methods approved by the

{|[DEC}.

ECL § 27-0106(1). In order to achieve these goals and recog-

nizing that solid waste management facilities are complex and

capital-intensive, the New York State Legislature on 38 sepa-

rate occasions has granted localities and planning units the

authority to control the handling of all solid waste within their

jurisdictions.* The Rockland County Solid Waste Treatment and

° See L. 1976, c. 913 (Niagara County); L. 1979, c. 509 (Town of

Oyster Bay); L. 1979, c. 510 (Town of North Hempstead); L. 1980, c. 560

(New York City); L. 1981, c. 932 (Onondaga County), L. 1982, c. 632

(Town of Islip); L. 1982, c. 675 (Dutchess County), L. 1983, c. 502 (St.

Lawrence County); L. 1983, c. 513 (Washington County); L. 1983, c. 930

(Broome County); L. 1984, c. 638 (North Hempstead Solid Waste Man-

agement Authority); C. 1985, c. 478 (Town of Babylon); L. 1985, c. 670

(Jefferson and Lewis Counties); L. 1985, c. 697 (Essex County); L. 1985,

c. 797 (Town of Hempstead); L. 1986, c. 627 (Western Finger Lakes

Solid Waste Management Authority); L. 1986, c. 840 (Town of Hunt-

ington); L. 1986, c. 936 (Ulster County); L. 1987, c. 71 (Warren County);

L. 1987, c. 485 (Orleans County); L. 1987, c. 747 (Montgomery, Otsego,

and Schoharie Counties); L. 1987, c. 773 (Saratoga County); L. 1988, c.

627 (Oneida and Herkimer Counties); L. 1988, c. 665 (Franklin County),

L. 1988, c. 667 (Town of Brookhaven); L. 1988, c. 670 (Essex County);

L. 1989, c. 80 (Town of Smithtown); L. 1989, c. 726 (Eastern Rensselaer

10

Disposal Act, L. 1991, c. 569, authorizes localities in Rockland

County, such as the Town of Clarkstown, to require that “all

solid waste generated, originated or brought within their

respective boundaries . Shall be delivered to a specified

solid waste management resource recovery facility” including

a transier station

Rockland County has developed a comprehensive solid waste

management plan that includes the implementation of a source-

separation program for various recyclables, and the develop-

ment of composting facilities, materials recovery facilities, and

an environmentally-sound landfill. The Clarkstown transfer

facility plays an integral role in the operation of the County

Plan

C. FLOW CONTROL PROMOTES MANY

COMPELLING BENEFITS

faking responsibility for waste recycling, energy recovery,

waste reduction, and environmentally-sound waste disposal

requires the ability to direct the flow of waste. Absent such

control, state and local efforts to ensure safe and efficient waste

disposal will fail. See U.S. Environmental Protection Agency,

The Solid Waste Dilemma: An Agenda For Action 14 (1989).

U.S. Congress, Office of Technology Assessment, Facing

America’s Trash: What Next for Municipal Solid Waste 275

(1989)

Flow contro! is not a recent innovation. Ordinances directing

garbage to a specific landfill or hauler are at least 90 years old

In 1905 this Court upheld two such ordinances against takings

claims as valid exercises of the police power. California

Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306

County); L. 1991, c. 369 (Madison County); L. 1991, c. 540 (Fulton

County); L. 1991, c. 631 (certain towns in Westchester County); L. 1992

252 (Tompkins County); L. 1992, c. 350 (Greene County); L. 1992

c. 369 (Sullivan County); L. 1992, c. 391 (Greater Troy Solid Waste

Management Authority); L. 1992, c. 567 (Town of Riverhead); L. 1992

c. 629 (Westchester County)

-_————a

li

(1905); Gardner v. Michigan, 199 U.S. 325 (1905). More

recently, when Congress enacted RCRA, it recognized that var-

ious States and localities already “require all discarded mate-

rials be transported to a particular location” and it made clear

that the legislation did not interfere with such flow contro}

ordinances. H.R. Rep. 94-1491 at 34. At least twenty-nine

States and territories have now adopted flow control ordi-

nances.’

Flow control promotes New York State public policy as

expressed in ECL § 27-0106, supra at 9, by providing at least

eight benefits. First, flow control promotes the twin goals of

energy recovery and recycling, two cornerstones of federal and

State policy. By requiring all solid waste to be delivered to a

central location, towns and their agents can ensure—in the

most efficient manner possible—that all materials that can be

See e.g., Colorado (Colo. Rev. Stat. § 30-20-107); Connecticut

(Conn. Gen. Stat. § 22A-220A); Delaware (Del. Code Ann. tit.7 § 6406

(31) (1991)); District of Columbia (D.C. Code § 6-507); Florida (Fla.

Stai. §§ 403.7063; 403.713 (1986 and Supp. 1992)); Hawaii (Haw. Rev.

Stat. § 340A-3(a)); Illinois (Ill. Ann. Stat. c. 34 P § ); Indiana (Ind.

Code §§ 36-9-31-3 & 4); lowa (lowa Code § 28G.4); Louisiana (La. Rev

Stat. 30:2307 (9)); Maine (Me. Rev. Stat. Ann. tit. 38, § 1304-D (West

1989 and Supp. 1991)); Minnesota (Minn. Stat. § 1158.80 (1990 and

Supp. 1991)); Mississippi (Miss. Code Ann. § 17-17-319); Missouri (Mo.

Rev. Stat. § 260.202); New Jersey (N.J. Stat. Ann. §§ 13:1E-22, 48:13A

5); New York (1991 N.Y. Laws, c. 569, at 1687-89); North Carolina (N.C.

Gen. Stat. § 130A-294); North Dakota (N.D. Cent. Code §§ 23-29-06(6)

& (8)); Ohio (Ohio Rev. Code Ann. § 343.01 (H)(2)); Oregon (Or. Rev

Stat § 268.317 (3) & (4)); Pennsylvania (Pa. Stat. Ann. tit. 53,

§ 4000.303(e)); Rhode Island (R.I. Gen Laws § 23-19-10(40)); Tennessee

(Tenn. Code Ann. 68-211-814); Vermont (Vt. Stat. Ann. tit. 24, §§ 2203a,

2203b); Virginia (Va. Code Ann. § 15.1-28.01); Washington (Wash. Rev.

Code § 36.58.040, 35.21.120); West Virginia (W. Va. Code S 240-2-1h);

Wisconsin (Wis. Stat. § 159.13(3), (11)); Virgin Islands (19 V.LC

§ 1570f)

Flow control, of course, does not violate the Sherman Act. Central

lowa Refuse Systems, Inc. v. Des Moines Metropolitan Solid Waste

Agency, 715 F.2d 419, 425 (8th Cir. 1983), cert. denied, 471 U.S. 1003

(1985); see Town of Hallie v. City of Eau Claire, 471 U.S. 34 (1985)

12?

—

removed from the solid waste stream for energy recovery or

recycling are indeed removed from the waste stream. Monitors

divert recyclable material improperly included in the waste

stream and deter improper disposal practices.

Second, flow control promotes the related goal of solid waste

reduction, “a key strategy in [New York’s]} solid waste man-

agement policy.” L. 1988, c. 70, § 2. By imposing volume-

based disposal costs reflective of state-of-the-art technology,

flow control ordinances encourage citizens and corporations to

reduce the amount of waste they produce. See Agenda for

Action at 34. Additionally, the removal of all materials from the

solid waste stream for energy recovery, composting, and recy-

cling reduces, by definition, the volume of solid waste. Less

solid waste translates into fewer health and environmental haz-

ards at downstream landfills.

Third, by funnelling all solid waste to a central location,

flow control allows localities to thoroughly monitor the solid

waste stream to ensure that hazardous and medical wastes are

not commingled with solid waste. Commingling is not a hypo-

thetical problem. Tainted solid waste damages a municipality's

reputation, making it more difficult and more expensive to dis-

pose of its solid waste, and increases the health and environ-

mental hazards to those communities that surround compost or

landfill facilities as well as to those who work at such facilities.

Absent flow control, towns could not check the entire waste

stream and intercept commingled waste. Flow control provides

an efficient and necessary first line of defense against the com-

mingling of hazardous and medical waste

Fourth, both Congress and the State Legislature expressly

recognized that guaranteed waste streams are crucial to the suc-

cess Of state-of-the-art resource recovery facilities. See H.R

Rep. No. 94-1491 at 34. Flow control regulations provide the

investment security for such necessary projects. Hybud Equip-

ment Corp. v. Akron, 654 F.2d 1187, 1190 (6th Cir. 1981),

vacated on other grounds, 455 U.S. 931 (1982), on remand,

13

742 F.2d 949 (1984), cert. denied, 471 U.S. 1004 (1985). By

ensuring a steady, long-term supply of garbage, flow control

provisions provide a broad financial base for revenue bonds.

Such a secure, long-term foundation makes the solid waste

facility an attractive investment. Absent flow control, waste-

flight will disrupt and destroy the formation of a secure finan-

cial base, and revenue bonds will not be marketable. See

Central lowa Refuse Systems, 715 F.2d 419, 422-27; Hybud,

654 F.2d at 1190."°

In a similar manner, by guarantecing a waste stream and sta-

bilizing a market, flow control fosters the development of

innovative recycling, composting, and energy-recovery techno-

logies. This encouragement of new technologies was clearly

contemplated by Congress when it enacted RCRA. H.R. Rep.

94-1491 at 34; see also 40 C.F.R. §§ 256.30, 256.31. For exam-

ple, flow control can assist New York City in developing cut-

ting-edge technology for large-scale composting of food

wastes. The inability to utilize flow control will inhibit the

development of new technologies and programs as well as the

construction of environmentally-sound solid waste management

facilities. See Agenda for Action at 14.

Fifth, separate and apart from providing the financial base

for solid waste management facilities, flow control also ensures

that garbage is actually shipped to and disposed of at envi-

ronmentally-sound facilities. As recognized by Congress and

the State Legislature, such facilities are essential if localities

are to effectively address the garbage crisis. Flow control helps

towns to guarantee that garbage is disposed of at an authorized

10 ' ,

In New York. $2 billion in revenue bonds have been issued over

the past ten years to finance solid waste management projects. In local

ities with flow control, approximately $1 billion in revenue bonds are

currently outstanding. Any displacement of flow control could undermine

such bonds, threaten bondholders’ investments, and trigger litigation

rivaling the “WPPSS” saga. See generally In re Washington Public Power

Supply System, 720 F. Supp. 1379 (D. Ariz 1989), aff'd, 955 F.2d 1268

(9th Cir.), cert. denied, U.S. —, 113 S.Ct. 408 (1992)

14

facility even if flow control is not needed to finance the facil-

ily.

Sixth, flow control helps states and localities avoid financial

exposure. Under B.F. Goodrich Co. v. Murtha, 958 F.2d 1192

(2d Cir. 1992), a municipality may be liable for CERCLA

clean-up costs incurred at disposal sites where its waste was

dumped. See 42 U.S.C. § 9601 et seq. By directing municipal

solid waste to a specific environmentally-sound disposal facil-

ity, localities can avoid or minimize such liability. Northside

Sanitary Landfill v. Indianapolis, 902 F.2d 521 (7th Cir. 1990)

(cily May concentrate its garbage al a single site given concem

about clean-up costs at another site).

Seventh, in the context of transfer stations, flow control can

reduce the volume of truck traffic as well as the volume of

garbage transported to another facility. Transfer stations reduce

waste volume by removing recyclables and then compacting

the residue for shipment. Also, by consolidating the contents of

several collection trucks for shipment in one larger truck, trans-

ler stations reduce truck traffic. Mulvey, “Cost Guidelines for

the Recycling Option,” printed in Selected Papers from the

1989 Conference on Solid Waste Management and Materials

Policy (New York State Legislative Commission on Solid

Waste Management, 1989); Filiberto Sanitation, Inc. v. State of

New Jersey Dept. of Environmental Protection, 857 F.2d 913,

920 (3rd Cir. 1988).

Eighth, by providing municipalities an opportunity to obtain

an accurate characterization of their waste streams, flow con-

trol provides an indispensable tool for developing a viable,

comprehensive solid waste management plan. Filiberto Sani-

tation, 857 F.2d at 920. According to the EPA, the identifica-

tion of the waste stream’s components and volume is an

indispensable first step towards solving the problems associ-

ated with garbage generation and disposal. Office of Solid

Waste, U.S. Environmental Protection Agency, Characteriza-

tion of Municipal Solid Waste in the United States: 1992

15

Update ES-1 (1992). Similarly, New York statutes require local

solid waste management plans to contain, first and foremost, a

“characteriz[ation of] the solid waste stream.” ECL § 27-

0107(1)(b)(i); accord ECL § 27-0405(2)(a).

For these reasons, flow control promotes many compelling

local, state, and national interests.

D. THE CLARKSTOWN TRANSFER STATION

PROTECTS THE COMMUNITY’S HEALTH

AND ENVIRONMENT

1. The Clarkstown Landfill

The Clarkstown landfill opened in 1950. In 1980 DEC deter-

mined that the landfill constituted a “significant threat to the

public health [and] the environment.” R. 181, 202-03. Garbage

was placed directly into the groundwater, and leachate was

seeping into the groundwater and threatening the drinking

water. R. 175-76. Therefore, DEC ordered the Town to close

the landfill, listed it in the Registry of Inactive Hazardous

Waste Disposal Sites, and assessed significant penalties. R.

189, 203. As a result of DEC’s enforcement action, the Town

agreed to construct a state-of-the-art transfer station that ulti-

mately would form part of a county-wide solid waste man-

agement program. A private contractor, Recycling Center Inc.

(“RCI”), constructed and operates the transfer station, charg-

ing $81 per ton of trash.'' While petitioners complain about the

Town's tipping fee, the difference in operations between their

facility and Clarkstown’s more than justifies the 15% differ-

ential.

2. Clarkstown’s Transfer Station & Petitioners’

Facility

Petitioners’ characterization of the “simpl[{e] transfer sta-

tion,” Pet. Br. at 13, masks the complexity of the Clarkstown

facility. To gain access, each truck must first pass between two

7 The Town has an option to purchase the station in 1995

16

geiger counters to ensure no radioactive waste is present. Next,

a Town employee examines the truck's manifest and weighs the

iruck. Video cameras record each entry. The transfer station

itself is a huge three-story building, with a large bay area inside

on the second floor where the solid waste is deposited. Here,

Town and RCI employees visually check the waste for the pres-

ence of recyclables, hazardous waste, and medical waste. A

roof and walls surround the transfer bay and contain blowing

litter and unpleasant odors. Workers and machines then seg-

regate recyclable materials such as tires, wood, cardboard,

metal, branches, and yard clippings. The tires, metal, and card-

board are shipped to recycling centers. The Town pulverizes

the wood and yard clippings and deposits the residue in the

Town's compost field, located next door. After the recyclables

are separated, machines load the non-recyclable residue into

tractor-trailer dump trucks waiting below on the first floor or

compress it for other trucks. The tipping fee charged by the

Clarkstown facility reflects the cost of the environmentally-

sound practices employed at a state-of-the-art facility.

In contrast, petitioners’ site has no perimeter fence,.no

enclosed dumping bay, no enclosed loading area, and no

radioactive waste sensors. Also, petitioners’ recycling claims

ring hollow in light of the police investigation that revealed

that petitioners send recyclable material, such as steel rims and

truck springs, to landfills and incinerators. R. 50, J.A. 17.

Moreover, it appears that petitioners improperly mixed medi-

cal waste, including surgical gloves and intravenous feeding

bags, with the solid waste. J.A. 17. While petitioners assert that

they deal only in non-Clarkstown or non-New York State

waste, the police officers’ identification of Clarkstown waste

at the site of the March 8, 1991 highway accident belies that

claim. R. 55-6. Given these practices, it is no surprise that peti-

tioners wish to avoid the inspection regimen of the Clarkstown

facility.

17

ARGUMENT

FLOW CONTROL PROVIDES SUBSTANTIAL

LOCAL BENEFITS WITHOUT RESTRICTING

INTERSTATE COMMERCE

A. The Purpose of the Commerce Clause

The dormant Commerce Clause acts as a limitation on the

states’ authority to erect protectionist state barriers that would

threaten the operation of the federal union. The Commerce

Clause has been construed to preserve our “national solidarity”

by preventing states from isolating themselves from problems

common to all and fomenting “rivalries and reprisals” similar

to those that existed under the short-lived Articles of Con-

federation. Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 522-

23 (1935); West v. Kansas Natural Gas, 221 U.S. 229 (1911).

This grant of general power upon Congress to regulate com-

merce, however, did not preempt the states’ police powers.

“({I)n the absence of conflicting legislation by Congress, there

is a residuum of power in the State to make laws governing

matters of local concern which nevertheless in some measure

affect interstate commerce or even, to some extent, regulate it.”

Hunt v. Washington State Apple Advertising Comm., 432 U.S.

333, 350 (1977); Parker v. Brown, 317 U.S. 341, 360-61

(1943). Although petitioners apparently view the Commerce

Clause as a constitutional antitrust provision, its focus instead

is the protection of interstate markets, not particular interstate

companies, from unduly burdensome regulations. Exxon Corp.

v. Governor of Maryland, 437 U.S. 117, 127-128 (1978).

B. Standard Of Review

This Court has developed two standards of review in ana-

lyzing Commerce Clause issues. First, economically protec-

tionist regulations, that is, those regulations that discriminate

against interstate commerce in favor of in-state interests, are

subject to strict scrutiny. Minnesota v. Clover Leaf Creamery

Co., 449 U.S. 456, 471 (1981); Philadelphia v. New Jersey, 437

18

U.S. 617, 624 (1978). A court may find that a state law con-

Stiltutes “economic protectionism” (1) if the statute differen-

liates between in-state and out-of-state interests by favoring the

former or burdening the latter or (2) if the statute was moti-

vated by a discriminatory purpose. The inquiry into whether or

not a discriminatory purpose motivated the statute usually cen-

ters on the legislative history behind the enactment. See Wash-

ington Apple, 432 U.S. 333, 352; Clover Leaf Creamery, 449

U.S. at 471, n. 15; Bacchus Imports, Ltd. v. Dias, 468 U.S. 263,

269-71 (1984). While in practice, the strict scrutiny standard

results in a virtual per se rule of invalidity, “{a]s long as a state

does not needlessly obstruct interstate trade or attempt to ‘place

itself in a position of economic isolation,’ it retains broad reg-

ulatory authority to protect the health and safety of its citizens

and the integrity of its natural resources.” Maine v. Taylor, 477

U.S. 131, 151 (1986) (citation omitted).

Second, in contrast to protectionist regulations, “even-

handed” regulations, that is, those regulations that apply

equally to in-state and out-of-state interests, are subject to a

balancing test outlined in Pike v. Bruce Church Inc., 397 U.S.

137, 142 (1970). Under the Pike standard, an “evenhanded”

State regulation is valid even if it effects an incidental burden

on interstate commerce so long as that burden is not clearly

excessive in relation to the local benefits. The examination of

“incidental burdens on interstate commerce” is a comparative

standard, and focuses on the degree to which a state action bur-

dens interstate commerce relative to intrastate commerce.

Clover Leaf Creamery, 449 U.S. at 471-72; Huron Portland

Cement Co. v. Detroit, 362 U.S. 440, 448 (1960). Where the

burden on out-of-state interests is no different from that placed

on similar in-state interests, there is no burden on interstate

commerce; rather, there is only a constitutionally unobjec-

uionable burden on all commerce. Thus, evenhanded legislation

will normally be upheld.”

ae Only in rare instances, such as in Pike itself, where there are

both substantia! costs imposed on out-of-state interests and de minimus

local benefits, will evenhanded regulations be struck down.

19

C. The Strict Scrutiny Test Is Inapplicable

In contrast to their position below where they urged the trial

Court to apply the Pike balancing test, petitioners now stren-

uously argue that the strict scrutiny standard should apply. Pet.

App. 19a. The strict scrutiny test has no application here. To

begin with, the Ordinance is facially neutral. The Ordinance

applies to “all solid waste within or generated within the

Town.” To that end, “/a//ll solid waste . . . shall be removed,

transported and/or disposed of only by carters licensed [by the

Town)” and any and all solid waste, regardless of origin, is to

be transported and delivered to the Town's transfer station. Pet.

App. 50a-53a (emphasis added). Moreover, the Town has estab-

lished a single, uniform tipping fee for each ton of solid waste

brought to the transfer station, regardless of its origin. Thus,

the Ordinance “visits its effects on both interstate and local

business.” CTS Corp. v. Dynamics Corp. of America, 481 U.S.

69, 87 (1987).

Even if the Ordinance is perceived as burdening the inter-

state flow of solid waste, it is clear that the Ordinance similarly

burdens Clarkstown garbage. The Ordinance’s equal treatment

of interstate and local solid waste defeats application of the

strict scrutiny standard. In each decision applying that standard

the Court has been confronted by a statute that imposed an

export or import ban of a certain good, while permitting the

continuation of in-state trade in that good. Philadelphia v. New

Jersey, 437 U.S. 617 (law precluded out-of-state trash from

being disposed of in New Jersey, but did not similarly restrict

disposal of New Jersey trash); Fort Gratiot, — U.S. —, 112

S.Ct. 2019 (same effect); Chemical Waste Mgmt. Inc. v. Hunt,

— U.S. —, 112 S.Ct. 2009 (1992) (law established higher tip-

ping fee for out-of-state-solid waste but did not so burden in-

state waste); Baldwin, 294 U.S. 511 (statute barred retail sale

of Vermont- produced milk in New York); Hughes v. Okla-

homa, 441 U.S. 322 (1979) (law precluded expon of Oklahoma

minnows for sale, but allowed in-state sales). It is discrimi-

nation against the interstate movement of goods, while favor-

20

ing or failing to burden the intrastate movement of goods, that

triggers the strict scrutiny standard. This point was made most

clearly in Philadelphia v. New Jersey where the Court stated

that while New Jersey could not stem the depletion of landfill

capacity by blocking the disposal of only out-of-state trash, it

could pursue that goal without violating the Commerce Clause

by slowing the flow of all waste, both in-state and out-of-state,

into its landfills, even though such a strategy would impede the

flow of out-of-state waste across its border. 437 U.S. at 626.

Unlike the situations in Washington Apple, 432 U.S. at 352,

or Bacchus, 468 U.S. at 269-71, there is no evidence of dis-

criminatory purpose behind the Ordinance. Here, the Town

Board arranged for the facility's construction and adopted the

Ordinance only after DEC determined that the landfill consti-

tuted a danger and ordered it closed. The purpose of the Ordi-

nance was to ensure the delivery of all solid waste to the

transfer station so as “to benefit the health, welfare, and safety

of the town residents.” Pet. App. 50a. These articulated pur-

poses deserve deference, see Clover Leaf Creamery, 449 U.S.

at 463 n. 7, 471 n. 15, and include promoting New York State's

public policy of reducing solid waste volume, increasing

resource recovery and recycling, and ensuring safe and reliable

handling of solid waste. Even if the Ordinance primarily bur-

dened interstate companies, which it does not, that fact “does

not lead, either logically or as a practical matter, to a conclu-

sion that the State is discriminating against interstate com-

merce.” Exxon, 437 U.S. at 125. Discrimination simply is not

present.'* Far from protecting the Town residents’ economic

interests, the Ordinance works to the residents’ economic dis-

advantage since the same $81 tipping fee that applies to out-of-

state haulers also applies to all in-state haulers that come to the

facility. Given this equal treatment, it cannot be said that Clark-

as The Clarkstown facility ships non-recyclable solid waste to

many of the same sites to which petitioners shipped waste. Accordingly,

petitioners’ suggestion, Pet. Br. at 34-5, that the Clarkstown facility

“obstruct|s] the use of solid waste as a source of energy” is disingenuous.

21

stown is imposing the “full burden” of supporting the transfer

facility upon out-of-state interests. Philadelphia v. New Jersey,

437 U.S. at 628. Restrictions on out-of-state interests are per-

missible so long as they are evenly applied to in-state interests.

“Obviously, a State that imposes severe withdrawal and use

restrictions on its own citizens is not discriminating against

interstate commerce when it seeks to prevent the uncontrolled

transfer of water out of the state.” Sporhase v. Nebraska, 458

U.S. 941, 955-56 (1982). Here, “[t}he existence of major in-

state interests adversely affected by the [law] is a powerful

safeguard against legislative abuse” and justifies the applica-

tion of the balancing test. Clover Leaf Creamery, 449 U.S. at

473 n. 17; South Carolina State Highway Dept. v. Barnwell

Bros. Inc., 303 U.S. 177, 187 (1938); Kassel v. Consolidated

Freightways Corp., 450 U.S. 662, 675 (1981); Fort Gratiot,

112 S.Ct. at 2029 (Rehnquist, C.J., and Blackmun, J., dis-

senting).

D. Under the Pike Balancing Standard, the Ordinance Is

Valid

This Court has applied a balancing test to several even-

handed regulations, like the Clarkstown Ordinance, that do not

differentiate between in-state and out-of-state interests. In

Clover Leaf Creamery, the Court applied the balancing test and

upheld a statute that prohibited all retailers from selling milk

in plastic, non-returnable cartons. Although the statute did bur-

den out-of-state plastic manufacturers, “this burden [was] not

‘clearly excessive’ in light of the substantial state interests in

promoting conservation of energy and other natural resources

and easing solid waste problems.” 449 U.S. at 473; see Huron

Portiand Cement, 362 U.S. at 448 (burden did not outweigh

benefits of evenhanded smoke abatement ordinance).

In a Commerce Clause challenge against a similar flow con-

trol law, the Third Circuit Court of Appeals applied the Pike

test and upheld the statute. Filiberto Sanitation, Inc. v. New

Jersey Dept. of Environmental Protection, 857 F.2d 913, 919-

22

22 & n.1 (3d Cir. 1988). The regulation in Filiberto Sanitation

provided several benefits including ensuring the proper dis-

posal of all trash, reducing truck traffic, providing accurate

data for planning purposes, facilitating long- and short-term

contracts for final disposal, and discouraging illegal dumping

by directing garbage to prescribed sites. The county transfer

station charged $100 per ton. Filiberto claimed it charged $50

per ton. /d. at 916.

Recognizing that legitimate health and safety regulations

may unavoidably effect an incidental burden on interstate com-

merce, id. at 918-19 (citing cases), the Third Circuit focused on

whether the regulation saddled out-of-state interests with the

burden of the solution to New Jersey's solid waste problem.

The court held that the regulation did not constitute economic

protectionism because: it applied equally to in-state and out-of-

State interests, id. at 921; no discriminatory purpose was iden-

tified, id. at 920-21, and the garbage continued to flow into

interstate commerce. Accordingly, the court declined to apply

the heightened scrutiny standard and instead applied the bal-

ancing test. Finding no burden that discriminated against inter-

State commerce and the existenge of compelling local benefits,

the Third Circuit rejected the Commerce Clause challenge. /d.

at 922.

The Sixth Circuit Court of Appeals has also upheld an ordi-

nance directing that all trash be delivered to a waste-to-energy

plant. Hybud Equipment Corp. v. Akron, 654 F.2d 1187 (6th

Cir. 1981). The Sixth Circuit balanced the parties’ claims.

Since the ordinance was a legitimate exercise of the police

power and its burden “f{e}ll hardest” on Akron residents and

interests, it did not constitute a discriminatory burden on out-

of-state interests and did not violate the Commerce Clause. 654

F.2d at 1194-95; see also In re Waste Disposal Agreement, 237

N.J. Super. 516, 568 A.2d 547 (N.J. Super. 1990); /n re Fior-

illo Bros., 242 N.J. Super. 667, 577 A.2d 1316 (N.J. Super.

1990); Harvey & Harvey, Inc. v. Delaware Solid Waste Auth.,

600 F. Supp. 1369, 1379-1381 (D. Del. 1985).

23

Like fire and police protection, the control of local sanita-

tion—including garbage collection and disposal—remains a

paradigmatic example of the exercise of municipal responsi-

bility and power. California Reduction Corp., 199 U.S. 306;

Gardner v. Michigan, 199 U.S. 325. As the Second Department

correctly noted below, “[ljocal governments have long been

authorized to enact laws relating to the ‘safety, health, and

well-being of persons or property’ (N.Y. Const., Art. IX, § 2

[c}{10]), and it is well settled that the regulation of solid waste

collection and disposal, a function traditionally entrusted to

State and local governments, is fundamentally related to the

public health and welfare.” Pet. App. 9a (citations omitted).

Police power ordinances, such as Clarkstown’s, have a strong

presumption of validity. As this Court stated in California

Reduction, “{e)very intendment is to be made in favor of the

lawfulness of the exercise of municipal power making regu-

lations to promote the public health and safety.” 199 U.S. at

319. This is so because states retain the authority to regulate

matters of state and local concern on which Congress has not

spoken. See Parker v. Brown, 317 U.S. at 360-363. Given the

hazards associated with garbage and its negative economic

value, see Swin Resource Systems, Inc. v. Lycoming County,

883 F.2d 245, 253 (3rd Cir. 1989), cert. denied, 493 U.S. 1077

(1990), and their traditional responsibility for garbage disposal,

states and localities have, and must continue to have, the power

to direct garbage to facilities that can safely dispose of it. As

the Appellate Division recognized below, the focus of such

police power regulation is “public welfare, rather than profit.”

Pet. App. 10a. “Where Congress has not acted, a state’s own

health and safety-oriented trash disposal regulation violates no

federal constitutional precepts, provided it neither unduly pro-

tects its Own citizens nor discriminates against another state's

citizens.” Jn re Waste Agreement, 568 A.2d at 555; Parker v.

Brown, 317 U.S. at 367. Moreover, where such regulations are

consistent with overall Congressional legislation, as in the

present case, they should receive greater deference.

24

As set forth supra at 10-15, flow control ordinances promote

many compelling governmental purposes. Clarkstown’s Ordi-

nance similarly fosters important interests. The Ordinance

ensures that all recyclables are removed from the waste stream

and thereby promotes the conservation of energy and other nat-

ural resources. Petitioners’ attempted disposal of recyclable

materials at a landfill, J.A. 16-17, underscores the need for

flow control. Moreover, by increasing recycling and imposing

volume-based disposal costs, the Ordinance promotes the

reduction of the overall volume of solid waste to the fullest

extent possible. These two goals constitute “substantial state

interest|s]." Clover Leaf Creamery, 449 U.S. at 473: RCRA

§ 4001, 42 U.S.C. § 6941; ECL § 27-0106(1). Additionally, the

Ordinance allows Town and DEC officials to inspect deliver-

ies to ensure individuals or corporations are not avoiding

DEC's medical or hazardous waste regulations. The benefits of

flow control and comprehensive inspections were recently

demonstrated when the monitors detected radioactive waste and

thereby prevented the contamination of the waste stream. D.

McClendon, Radioactive Waste is Held in Limbo, Rockland

Journal-News, May 17, 1993, at B1. Furthermore, the Ordi-

nance contributes to the financial viability of the facility. By

designating a single delivery site for solid waste, the Town also

ensures that garbage is handled by an environmentally-sound

facility and augments ordinances that prohibit “midnight dump-

ing’ in remote areas. The Town has cause to be concerned

about this issue. See S. Lieberman, Abandoned Trash in West

Virginia is Traced to Local Carbone Site, Rockland Journal

News, July 26, 1991, at B3. Lastly, the Ordinance ensures that

town Officials will have a complete, accurate, and ongoing

understanding of the waste stream, aliowing effective planning

Even assuming, however, that the Ordinance effects some

burden on interstate commerce, it is only incidental and should

not defeat the evenhanded Ordinance which promotes com

pelling state and local interests. Clover Leaf Creamery, 449

U.S. at 471-73; Huron Portland Cement, 362 U.S. at 448

25

(evenhanded city smoke abatement ordinance upheld, despite

requirement that ships passing in interstate waters wou!d have

to modify their boilers, given important City interest “to better

the health and welfare of the community”); Parker v. Brown,

317 U.S. at 367 (price stabilization program upheld “although

it undoubtedly affected the commerce by increasing the inter-

State price of raisins and curtailing interstate shipments”).

Thus, where, as here, the challenged regulation imposes no

burden on out-of-state interests and promotes compelling local

interests the Court should uphold the Ordinance.

E. Given the Compelling Non-Economic Interests Fos-

tered by the Ordinance and the Absence of Other

Alternatives, the Town Ordinance Is Constitutional

Under Either Standard of Review

Under cither the strict scrutiny standard or the balancing test,

the statute should be found constitutional because less-dis-

criminatory alternatives are not available to preserve the com-

pelling, non-economic local interests. Maine v. Taylor, 477 U.S

at 137-38; see Fort Gratiot, 112 §.Ct. at 2027-28. Petitioners

have suggested the creation of a solid waste tax district or rais-

ing the property tax as a “non-discriminatory” alternative to

flow control. Pet. Br. at 27-29, 36. This argument incorrectly

assumes that the sole purpose of flow control is to finance solid

waste management facilities. As discussed, supra at 10-15.

flow control serves many compelling local purposes in addition

to facility financing

Lack of control over garbage will doom any attempt at long

range solid waste planning and could well leave solid waste

facilities underutilized or standing idle. More importantly,

taxes do not direct garbage to authorized. environmentally

sound facilities. Additionally, taxes, unlike lipping tees, will

not bring about a reduction of solid waste nor will they pro

mote recycling because a general tax is too far removed from

the production of garbage to be an effective tool in encourag

ing waste reduction. Just as water meters discourage water

26

waste and allow users to be billed according to the quantity

they consume, tipping fees will encourage waste reduction and

will impose, quite properly, the greatest Costs on those who

produce the most waste. Since taxes do not affect disposal

habits, they cannot effectuate the federal and state goals to

increase recycling and resource recovery and reduce waste.

Unlike channeling solid waste to a central point where it is

inspected and materials are removed, taxes do not allow munic-

ipalities to ensure that recyclable goods are removed from the

waste stream. Also, the erection of a tax regime in place of

flow control would allow haulers to avoid the radiation detec-

lion check and inspection by town personnel. Haulers then

could mix hazardous and medical waste with solid waste. Sim-

ilarly, a tax regime provides no effective means to minimize

CERCLA liability or to analyze the waste stream to Support

long-term planning. Lastly, with no requirement that trash be

reduced and compacted for efficient shipments in long-bed

trucks, the number of truck trips would increase and Savings in

gasoline economy would be lost.

The so-called “processing” cases cited by petitioners are

inapplicable. Pet. Br. at 19-22. None of these decisions

involved a regulation to protect the community's health and

environment. The state policies at issue in those cases do not

rise to the level of a state's responsibility to protect the health

and environment of its citizens. See Toomer v. Witsell, 334 US.

385 (1948) (regulation designed to increase employment in

State shrimp industry); South Central Timber Dev.. Inc. v. Wun-

nicke, 467 U.S. 82, 85-6, n. 5 (1984) (regulation designed to

protect in-state employees resulted in the production of

“cants,”” a semi-processed timber product of dubious ulility);

Pike v. Bruce Church, 397 U.S. at 14445 (regulation designed

lo cflectuate the state's “tenuous interest” in promoting the rep-

ulation Of Arizona cantaloupes); Foster-Fountain Packing Co.

v. Haydel, 278 U.S. 1, 10 (1928) (statuie’s real design was to

cause “the removal of the packing and canning industries from

Mississippi to Louisiana”). Garbage is fundamentally different

from the goods involved in those cases. Unlike shrimp, oysters,

nNEn ee

and timber, garbage has a negative economic value and endan-

gers the health and environment. While petitioners character-

ize garbage as gold, its “value” is created only because it must

be disposed of in an environmentally-sound manner.'* None of

the cases cited by petitioners address the power of states and

localities to channel wastes for the protection of the commu-

nity.

In an attempt to avoid the balancing standard, petitioners

appear to argue that Pike “actually applied the per se standard

in striking down the statute.” Pet. Br. 30 n. 16. Petitioners mis-

understand Pike. There, the cantaloupe packing requirement

exacted a heavy burden. It would cause the respondent to lose

its entire 1968 crop valued at $700,000, and to expend some

$200,000 to build an in-state packing facility, after already hav-

ing spent $3,000,000 to develop uncultivated, arid land into a

farm. In comparison, the local interest was virtually non-exis-

tent. The statute was enacted to promote the reputation of Ari-

zona Cantaloupes and would allow other growers to benefit

from respondent’s superior product. The Court explicitly con-

sidered both the benefits and the burden of the state law, and

found the burden too great:

Such an incidental consequence of a regulatory scheme

[1.e., the costs to appellee} could perhaps be tolerated if a

more compelling state interest were involved. But here the

State's interest is minimal at best.

397 U.S. at 146. This weighing of the benefits and burdens of

the state law was a deliberate and obvious application of the

balancing test expounded in Pike itself, and the Court invali-

dated the law not under any per se rule, but rather because the

4 1. “ "

In addition, the regulation in Toomer “captured shrimp caught

in the ocean and forced the harvest to come ashore in South Carolina

before it could continue in interstate commerce. Clarkstown has no such

capture provision; haulers are free to bring non-Clarkstown waste

wherever they wish. All the Ordinance requires is that once haulers

decide to bring garbage into the town, it be delivered to the environ

mentally-sound transfer facility

State's interest was so “tenuous.” id. at 145, and the statute

imposed burdens.'>

Neither is Waste Systems Corp. v. County of Martin, 985 F.2d

1381 (8th Cir. 1993), persuasive authority. At the outset, the

court overlooked the holding in Maine vy. Taylor, 477 U.S. at

137-38, that a direct restriction of trade does not. by itself, ren-

der a law unconstitutional. 985 F.2d at 1385. The court also

failed to give sufficient weight to the counties’ valid health and

Safety interests in the ordinances at issue. The ordinances,

rather than being mere “economic” measures, ensured the

responsible and environmentally-sound disposal of local waste

in accordance with the federal government’s own priorities for

disposal methods, see EPA Agenda for Action at 18-19. and

permitted the development of local waste disposal capacity so

that the counties could fulfill their traditional responsibilities

for solid waste management. Additionally, the court apparently

misunderstood both the significant difference between com-

posting and landfilling and the burdens incurred by the county

residents. 985 F.2d at 1387-88. Moreover, the officials involved

in the litigation did not clearly set forth many benefits achieved

by flow control. /d. at 1388-89. The Eighth Circuit ignored the

genuine problems that local governments face in trying to meet

their obligations for waste disposal and mistakenly labeled as

“economic protectionism” the counties’ attempts to address a

very real problem having little to do with profit-making or eco-

nomic competition.

In analyzing previous cases, this Court has stated that

“| what is crucial is {whether the regulation is an] attempt by

one State to isolate itself from a problem common to many by

s

, Even if this court were to strike down section § as violative of

the Commerce Clause, the requirement of section 3 that all garbage orig

inating within the Town be delivered to the transfer facility should be

upheld. Parker v. Brown, 317 U.S. 341. Courts have upheld town or

county flow control regulations. Filiberto Sanitation, 857 F.2d 913: AA

Mastrangelo, Inc. v. Department of Environmental Protection, 90 N.J

666, 449 A.2d 516 (N.J. 1982): Browning Ferris Industries of Tennessee,

Inc. v. Nashville, 1991 WL 219383 (Tenn. Ct App. Oct. 30, 1991)

29

erecting a barrier against the movement of interstate trade.”

Philadelphia v. New Jersey, 437 U.S. at 628; Baldwin, 294 U.S.

at 527. This case does not implicate such concerns. Clarkstown

is not “tuming its back” on this problem by attempting to keep

an undesirable good out of the town or limit access to disposal

sites, see e.g. Philadelphia v. New Jersey, nor is it trying to

“hoard” a natural resource within the town, see e.g. Kansas

Natural Gas, 221 U.S. 229; Pennsylvania v. West Virginia, 262

U.S. 553 (1923). Clarkstowi: is merely directing the waste

product of modern society to a centralized location so that the

volume of solid waste is reduced, energy is conserved, and the

environment less burdened.

CONCLUSION

Petitioners’ claim is essentially that their New York based

operation is less profitable as a result of Clarkstown’s transfer

station and ordinance. However, “t]he Commerce Clause .

does not elevate free trade above all other values,” Maine v.

Taylor, 477 U.S. at 151, aor have courts “ascribe[d] to the

thesis that [a hauler] is constitutionally entitled to the least

expensive interim solution to this pervasive waste disposal

problem under the guise of Commerce Clause protection.” /n

re Waste Agreement, 568 A.2d at 555. In light of garbage’s

potential hazards and negative value and in contrast to various

States’ attempts to ban the importation of garbage, flow control

regulations will not foster parochial “jealousies and aggres-

sions” among the states of the type that motivated the grant of

the commerce power to Congress.'®

Petitioners’ claim would jeopardize recycling and resource

recovery programs across the country as well as programs to

reduce and safely dispose of solid and hazardous waste and

16

Ferrand, Records of the Federal Convention, Vol. II, p. 308; Vol.

Ill, pp. 478, 547, 548; see S. 2877, 102d Cong., 2d Sess. (1992) (legis

lation introduced by Senators Coats and Baucus to curtail importation of

garbage)

30

would also shackle state and local governments in their efforts

to protect the health and environment of their communities.

For all the foregoing reasons, the judgment of the New York

Supreme Court, Appellate Division, Second Department,

should be affirmed.

Dated: New York, New York

August 19, 1992

Respectfully submitted

Attorneys for Amici Curiae

ROBERT ABRAMS,

Attorney General of the

State of New York

JERRY BOONE,

Solicitor General

ANDREA GREEN,

Deputy Solicitor General

JOHN J. Sipos,*

GORDON J. JOHNSON,

Assistant Attorneys General

PAUL LLEWELLYN, Legal Intern

120 Broadway

New York, New York 10271

(212) 416-8473

Attorneys for the State of New York

* Counsel of Record

31

O. PETER SHERWOOD,

Corporation Counsel of

the City of New York

LEONARD J. KOERNER,

Chief Assistant Corporation Counsel

ELIZABETH ST. CLAIR, ~

HILARY BREST,

MARJORIE Fox,

ROBERT ORLIN,

Assistant Corporation Counsel

100 Church Street

New York, New York 10007

Attorneys for the City of New York

JONATHAN Woop,

Assistant County Attorney

Tompkins County Attorney Office

125 East Court Street

Ithaca, New York 14850

MARTIN GOLD

Louis A. EVANS

Brown & Wood

One World Trade Center

New York, New York 10048

Attorneys for the New York State

Association of County Attorneys