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

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No. 92-1402

AUG -

IN THE UG 23 1993

Supreme Court of the Hnitet States HLL

OCTOBER TERM, 1993

C & A CARBONE, INC., RECYCLING PRODUCTS OF ROCKLAND,

INC., C & C REALTY, INC., and ANGELO CARBONE,

Petitioners,

—VY —

TOWN OF CLARKSTOWN,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT, APPELLATE

DIVISION, SECOND DEPARTMENT OF THE STATE OF NEW YORK

BRIEF FOR THE STATE OF NEW YORK, THE

CITY OF NEW YORK, and THE NEW YORK

ASSOCIATION OF COUNTY ATTORNEYS AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

ROBERT ABRAMS,

Attorney General of the

State of New York

JERRY BOONE,

Solicitor General

ANDREA GREEN,

Deputy Solicitor General

JOHN Jj. SIPOS,*

GORDON J. JOHNSON,

Assistant Attorneys General

120 Broadway

New York, New York 10271

(212) 416-8473

Attorneys for the State of New York

* Counsel of Record

(Counsel continued on inside front cover)

BEST AVAILABLE COPY

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 WOOD,

Assistant County Attorney

Tompkins County Attomey 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

Ne de eet

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether a local law requiring the delivery of all trash within

a town to a designated local transfer facility violates the Com-

merce Clause of the United States Constitution.

TABLE OF CONTENTS

PAGE

SS PUTEE 6 cc décccrescecsccsisdecsecetbens i

SER Ce CU CONGUE 6 hon 5 cedccccccccscescessgaces: iv

SCT ees OW ARGICE CURIA 2... ccccccscccecccesescs: |

ee Ce CEE, a x0 Swihsckicddvccniedasddccata 2

FACTUAL AND STATUTORY BACKGROUND......... 3

A. GARBAGE CAN ENDANGER HEALTH AND

We eT OUTED save ecctccécvcedecescese: 4

B. FEDERAL AND STATE ENVIRONMENTAL

I icnbacnddcncuectaccensesssesnte-<s 6

1. THE RESOURCE CONSERVATION AND

PETE GUD wocscdsdiadbinsonsnceess: 6

NEW YORK STATE’S COMPREHENSIVE

SOLID WASTE MANAGEMENT

EEE dnvcdvideueccudneesécesesoecsess a)

C. FLOW CONTROL PROMOTES MANY COM-

PRPC) POT OUD coccccvccescccccsccscosees 10

D. THE CLARKSTOWN TRANSFER STATION

PROTECTS THE COMMUNITY'S HEALTH

RF ETE hapetecdececcctuccuscese: 15

1. THE CLARKSTOWN LANDFILL ........ 15

2. CLARKSTOWN’S TRANSFER STATION

AND PETITIONERS’ FACILITY ......... 15

ARGUMENT.......... snacenedbady cheddsadedtapnaemeeusensa 17

FLOW CONTROL PROVIDES SUBSTANTIAL LOCAL

BENEFITS WITHOUT RESTRICTING INTER-

SOs EE Socecsedescesubndbiccscécescccce 17

A. THE PURPOSE OF THE COMMERCE

SAE cbs sesedcnvcccnccncs (bbaeeebekanneont 17

BD. DIAMAR OF REVIES . on... ccccccccccccceses 17

C. THE STRICT SCRUTINY TEST IS

Rs kcddevattsstcuskddacacenasse see 19

D. UNDER THE PIKE BALANCING STANDARD,

THE ORDINANCE IS VALID.................. 21

E. GIVEN THE COMPELLING NON-ECONOMIC

INTERESTS FOSTERED BY THE ORDINANCE

AND THE ABSENCE OF OTHER ALTERNA-

TIVES, THE TOWN ORDINANCE IS CONSTI-

TUTIONAL UNDER EITHER STANDARD OF

RT a vcnscnceveccdnacssccedensaustbaebasenss 25

I 06 bu cbes 46 dncncdovucoducccsuencunseubeeea 29

TABLE OF AUTHORITIES

Cases PAGE

A.A. Mastrangelo, Inc., v. Commissioner of Dept. of

Environmental Protection, 90 N.J. 666, 449 A.2d

EE ID 660g Soins Celta he Tote bd cones cae 28

Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984).... 18, 20

Baldwin v. G.A.F. Seelig, Inc., 294 U.S. §11 (1935)....17, 19

BF. Goodrich Co. v. Murtha, 958 F.2d 1192 (2d Cir.

RE Re) Sa Rem 6 OE ee ee 14

Browning-Ferris Industries of Tennessee, Inc. v. Metropol-

itan Government of Nashville and Davidson County,

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

appeal Genied (Feb. 24, 1992) .........ccccccscccess 28

California Reduction Co. v. Sanitary Reduction Works,

EE RE OE een ner 10, 23

Central lowa Refuse Systems Inc. v. Des Moines Metropol-

itan Solid Waste Agency, 715 F.2d 419 (8th Cir.

1983), cert. denied, 471 U.S. 1003 (1985) ........ 11,13

Chemical Waste Management, Inc. v. Hunt, — U.S. —-,

cern cungsesigubbbbadheenassns 19

CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69

a a a a ak Ee es ag 19

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

EN bil cred ckchcienhonduwkinstaeeds 5

Exxon Corp. v. Governor of Maryland, 437 U.S. 117

Di ididccined vee ddinunahihdekhthuatndkeedenunens 17, 20

PAGE

Filiberto Sanitation, Inc. v. New Jersey Dept. of

Environmental Protection, 857 F.2d 913 (3d Cir.

tt rete sa a OR eee ba gS 14, 21-22, 28

In re Fiorillo Bros., 242 N.J. Super. 667, 577 A.2d 1316

EE eon cca sCheeSlannberinbentsnneehers 22

Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of

Environmental Natural Resources, — U.S. —,

Fe ee I io ohio t ec tea dn 6,9, 21, 25

Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1

PP iditcsetivdeetiacidbidedsdeusdvsboeaentasbeesee 26

Gardner v. Michigan, 199 U.S. 325 (1905)............. 11, 23

Harvey & Harvey, Inc. v. Delaware Solid Waste Auth.,

600 F.Supp. 1369 (D. Del. 1965S). ............cc00e: 22

Hughes v. Oklahoma, 441 U.S. 322 (1979)................ 19

Hunt v. Washington State Apple Advertising Comm., 432

tp TT bail cae dncunibndcdenadeutinena 17, 18, 20

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

RRR a eee eae EW oe OYE eA 18,21, 24

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

1981), vacated on other grounds, 455 U.S. 93}

(1982), on remand, 742 F.2d 949 (1984), cert.

denied, 471 U.S. 1004 (1985) ................. 12, 13, 22

Kassel v. Consolidated Freightways Corp. cf Delaware,

SP SED Ccnsdedpadediescccesiteucsusbeats 21

Maine v. Taylor, 477 U.S. 131 (1986) .......... 18, 25, 28, 29

Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456

DE nd adeiapbencedebd vkabectedunenas 17, 18, 20, 21, 24

PAGE

Northside Sanitary Landfill, Inc. v. Indianapolis, 902

Pe ee UE ED SED 0 sodn5a05n0000% cebcbeevsssar’s 14

Parker v. Brown, 317 U.S. 341 (1943).......... 17, 23, 25, 28

Pennsylvania v. West Virginia, 262 U.S. 553 (1923)...... 29

Philadelphia v. New Jersey, 437 U.S. 617 (1978) . 17, 19, 20, 21, 29

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) ... 18, 26, 27

South Carolina State Highway Department v. Barnwell

Brothers, 303 U.S. 177 (1938)................0000 eee 21

South Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82

I aerate bac tees eal eens oct eee I 26

Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941

DE ceeeedehgihrdechadeatenadeackasnsabsdauensioers 21

Swin Resource Systems, Inc. v. Lycoming County, Pa.,

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

PT os sckbsecusausanikdves condeb secs eueatérass 23

Toomer v. Witsell, 334 U.S. 385 (1948) .........0....... 26-27

Town of Hallie v. City of Eau Claire, 471 U.S. 34 (1985)... 11

In re Washington Public Power Supply System Securities

Litigation, 720 F. Supp. 1379 (D.Ariz. 1989), aff'd,

955 F.2d 1268 (9th Cir.), cert. denied, -—- U.S. —, —

A a bt las pot tecdadcsnavaesadane sea 13

In re Waste Disposal Agreement, 237 N.J. Super. 516, 568

A.2d 547, cert. denied, 121 N.J. 647,

ED Sid ecdecnueduadedeaskensas 22, 23, 29

Waste Systems v. County of Martin, 985 F.2d 1381 (8th

St ME itetuddiscikubeuncine brenbbandenneenebenweses 28

West v. Kansas Natural Gas Co.,-221 U.S. 229 (1911)..17, 29

vii

PAGE

Constitution

Federal

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New York State

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Statutes

Federal

Comprehensive Environmental Response, Compensation

and Liability Act, 42 U.S.C. § 9601 et seq. ....... 14

Resource Conservation and Recovery Act,

42 USC § 6901, et seq.:

RCRA § 1002(a)(4), 42 U.S.C. § 6901(a)(4)......... 6

Peers © Pere SS WR. Be ccc sccccccccccsccess 7

RCRA § 4001, 42 U.S.C. § 6941 ................... 7,24

RCRA § 4003(a)(2), (5), 42 U.S.C. § 6943(a)(2), (5S) ..7-8

RCRA § 4005, 42 U.S.C § GOES 2... ccc cece eeeees 7

New York State

Environmental Conservation Law

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Laws of New York

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1976, c.

1977, c.

1979, c.

1979, ¢.

1980, c.

1981, ¢.

1982, c.

1982, ¢.

1983, c.

1983, ¢.

1984, c.

1985, c.

1986, c.

1987, c¢.

1987, c.

1988, c.

1989, c.

1989, ¢c.

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Other States

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Del. Code Ann. tit. 7 § 6406 (31) (1991) ............... 11

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Fla. Stat. §§ 403.7063, 403.713 (1986 and Supp. 1992). 11

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N.J. Stat. Ann. §§ 13:1E-22, 48:13A-S................. 1]

Ohio Rev. Code Ann. § 343.01 (H)(2)................. 11

Or. Rev. Stat, § 268.317 (3) & (4) .......... eee e eee eee 1]

Pa. Stat. Ann. tit. 53, § 4000.303(¢)................0.6. 1]

R.I. Gen Laws § 23-19-10(40)............ 0. cece ee ee eee. 1]

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PAGE

Legislative Materials

S. Rep. No. 988, 94th Cong., 2d Sess. (1976)............. 4

Interstate Transport and Disposal of Solid Waste: Hearing

Before the Subcomm. on Environmental Protection of

the Senate Comm. on Environment and Public Works,

SPOS CU g Be OO, CI o oc cccccckccccccvecscess 4

S. 2877, 1026 Cong.. 26 Sess. (1992) ..........cccccccesss 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

TELS Usarnewanvasduncenrscosthaneesrerdeieo rads 4

Miscellaneous

Brunner, Hubbard, Keller & Newton, Closing Open

EE Is ae ccaecavaaduseh oe ceces auyent 5

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

S. Lieberman, Abandoned Trash in West Virginia is

Traced to Local Carbone Site, Rockland Journal-

Pe Ge Sy OU OE WE evibi cs cdnsevvcecesevccessss 24

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

Rockland Journal-News, May 17, 1993 at B1........ 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

ee Sy CID cera cdacccncuvubeceuses oes i4

xii

PAGE

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

America’s Trash: What Next for Municipal Solid

ID care uacceVoaccedeseseteeeneeenbkdscusts 10

U.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 Solis’ Waste

in the United States: 1990 Update (1990) ........... 4

Office 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 throughout 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 fulfill 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 © pro-

gram to recycle the plastic components of regulated medical

waste. If promulgated, flow control regulations would enable

both of these programs to direct recoverable wastes to

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

..uck 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

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 ii, 2 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

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

essary to acknowledge those hazards, the evolution of envi-

ronmemal laws governing waste disposal, and the benefits

secured by modem solid waste management facilities and flow

control ordinances.

A. GARBAGE CAN ENDANGER 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).

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

1491, 94th Cong., 2d Sess. 9 (1976), “eprinted 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, 10) st Cong., 2d Sess. 2 (1990).

3 See Staff of the House Subcomm. on Transportation and Com-

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

CBE Re

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(S); 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 to 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”).

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 highty 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:

5 See H.R. Rep. 94-1491 at 17-23, reprinted in 1976 U.S.C.C._A.N.

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).

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, each 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. . .) 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), (5) (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

-———1ewanted 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. §-69434ay5)—_—

7 LL. 1977, ¢. 425, § 6 and-L. 1980, ¢. 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.

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

York State Legislature established the following solid waste

managern.ent 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;

manner, energy from solid waste that cannot be econom-

ically and technically reused or recycled;

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

reused, recycled of 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. $09 (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, ¢. 675 (Dutchess County); L. 1983, c. 502 (St.

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

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

agement Authority), L. 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. '989, c. 80 (Town of Smithtown); L. 1989, c. 726 (Eastern Rensselaer

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 transfer 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

Taking 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 Wasie 275

(1989).

Flow control 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. vy. 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

c. 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).

(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 control

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

cight 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.

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

Stat. § 340A-3(a)); Illinois (Ill. Ann. Stat. c. 34 P $-1047); 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 —_a. § 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 (Onio 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 $ 240-2-1h);

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

§ 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).

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 sciid 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 ffow 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,

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-

ling-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).

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

ity.

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)

(city 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-

fer 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, $57 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

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

a The Town has an option to purchase the station in 1995.

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

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

truck. 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.

hr a

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. $11, §22-

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 preempi 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

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

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

tiates 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-

tionable burden on all commerce. Thus, evenhanded legislation

will normally be upheld."

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

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

local benefits, will evenhanded regulations be struck down.

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/il 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 Memt. Inc. v. Hunt,

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

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) (jaw precluded export of Oklahoma

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

nation againsi the interstate movement of goods, while favor-

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 ts 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 cut-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-

13 - 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.

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 just'fies the applica-

tion of the balancing test. Clover Leaf Creamery, 449 US. 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 casing solid waste problems.” 449 U.S. at 473; see Huron

Portland 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 & n.1 (3d Cir. 1988). The regu! ation 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. ai 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 couri 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 existence 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).

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 healih 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

pclice 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.” /n 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.

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 finar.cial 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 thal

town officials will have a complete, accurate, and ongoing

understanding of the waste stream, allowing 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

(evenhanded city smoke abatement ordinance upheld, despite

requirement that ships passing in interstate waters would 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-

siate 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,

ihe 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 S.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 tipping fees, 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 dispos*'

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-

tion 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 U.S.

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 utility),

Pike v. Bruce Church, 397 U.S. at 144-45 (regulation designed

to effectuate the state’s “tenuous interest” in promoting the rep-

utation of Arizona cantaloupes); Foster-Fountain Packing Co.

v. Haydel, 278 U.S. 1, 10 (1928) (statute'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,

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

[i.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

" 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-Clarksiown 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 v. 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

“tw hat is crucial is [whether the regulation is an] attempt by

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

15 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 NJ.

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).

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). Clarkstown 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, nor 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

os 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).

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

* Counsel of Record

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

JOUN J. Sipos,*

GORDON J. JOHNSON,

_Assistant Attorneys General

PAUL LLEWELLYN, Legal Intern

120 Broadway

New York, New York 1027]

(212) 416-8473

Attorneys for the State of New York

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

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