Opposition Brief — City of Philadelphia v. Borough of Glassboro

| Supreme Court, U.S. oa

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No. 85-707 Roy 6 WS

SSSCEECESSPANIOL, JR

In The CLERK

Supreme Court of the Unite States

October Term, 1985

fy)

Vv

CITY OF PHILADELPHIA,

Petitioner,

Vv.

BOROUGH OF GLASSBORO, et al.,

Respondents.

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Vv

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEW JERSEY

BRIEF AND APPENDIX IN OPPOSITION ON

BEHALF OF RESPONDENTS STATE OF NEW

JERSEY, DEPARTMENT OF ENVIRONMENTAL

PROTECTION AND ROBERT E. HUGHEY,

COMMISSIONER OF THE NEW JERSEY

DEPARTMENT OF ENVIRONMENTAL PROTECTION

ray

Vv

Irwin [. KimMELMAN

Attorney General of New Jersey

Attorney for Respondents, State

of New Jersey, Department of

Environmental Protection and

Commissioner Robert E. Hughey

Richard J. Hughes Justice Complex

CN 112

Trenton, New Jersey 08625

(609) 984-5612

MicuHakEx R. Coie

First Assistant Attorney General

Of Counsel

Pau. H. Scunemer

Deputy Attorney General

On the Brief

Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

“BEST AVAILABLE COPY [ama

COUNTER-STATEMENT OF THE QUESTIONS

PRESENTED

1. Whether the Supreme Court has jurisdiction to

grant a writ of certiorari to the Supreme Court of New

Jersey which affirmed, on interlocutory appeal, a prelim-

inary injunction entered by a New Jersey trial court, where

the case is still pending before the trial court and is sched-

uled for trial in January 1986 at which the state court will

make a final determination of petitioner’s federal claims.

2. Whether a preliminary injunction entered by a

New Jersey court in order to avoid an imminent local pub-

lic health crisis, that enjoins from disposal at an exhausted

sanitary landfill in New Jersey solid waste generated in

Philadelphia and other communities both within and with-

out New Jersey which have available alternative waste dis-

posal sites, and authorizes certain loca! communities with

no present waste disposal alternatives to continue using

the landfill on a temporary, conditional basis while they de-

velop alternatives, violates the Commerce Clause of the

United States Constitution.

il

LIST OF ALL PARTIES TO PROCEEDINGS

The list provided by petitioner should be supplemented

to clarify that the interests of the State of New Jersey,

Department of Environmental Protection and its Commis-

sioner, Robert E. Hughey, as well as the position taken by

said parties in the courts below, are clearly contrary to

that of petitioner and, therefore, said parties should be

regarded as respondents in the within action.

il

TABLE OF CONTENTS

Page

COUNTER-STATEMENT OF THE QUESTIONS

I nian i

LIST OF ALL PARTIES TO PROCEEDINGS il

oS I Sty 8 tS» | eee iv

COUNTER-STATEMENT OF THE CASE ..... 1

ARGUMENT:

A. THE SUPREME COURT LACKS JURIS-

DICTION TO GRANT THE WRIT OF CER-

TIORARI BECAUSE THERE HAS BEEN

NO FINAL JUDGMENT BY THE STATE

hot. SERS aeieei panied ealoneicteicics 13

B. THE COURTS BELOW PROPERLY HELD

THAT THE PRELIMINARY INJUNCTION

DOES NOT VIOLATE THE COMMERCE

CLAUSE BECAUSE IT IS BASED UPON

AN EVENHANDED EQUITABLE

SCHEME WHICH EFFECTUATES LE-

GITIMATE LOCAL PUBLIC INTERESTS

WITH ONLY INCIDENTAL EFFECTS ON

INTERSTATE COMMERCE.

Sn cha cals ahelslncenisniinaceenaboetnctilerl 28

APPENDIX: Factual and Legal Contentions filed by

Petitioner City of Philadelphia in Connection with

Pretrial Proceedings in the Superior Court of New

EEL ALL TL la

iv

TABLE OF AUTHORITIES

Page

CASES CITED

Asbell v. Kansas, 209 U.S. 251 (1908) nnn ccc esesssssssseesseceee 20, 25

Baldwin v. G.A.F. Sellig, Inc., 294 U.S. 511 (1935). 20, 25

Bowman v. Chicago & Northwestern Ratlway Co.,

Or ae i a aclaalaniote 20, 25

Brady v. Maryland, 373 U.S. 83 (1963) ncccccccccccssocsssnseenesenee 16

California v. Stewart, 384 U.S. 436 (1966) 2. 17

Central Iowa Refuse Systems, Inc. v. Des Mownes

Metropolitan Solid Waste Agency, 715 F.2d 419

ARIE Pet: SII ddl senshi echioedicsiitbccasiniees oaaatdnnnins NEON em 26

Chapman v. California, 405 U.S. 1020 (1972) ................... 13

Cohen v. Beneficial Industrial Loan Corp., 337

EME Bye "RE: BERS i nie picid = ft Bir HSE: ELSE CC 19

Collins v. Miller, 252 U.S. 364 (1920) 0 13

Costarelli v. Massachusetts, 421 U.S. 193 (1975) oo. 13

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

fi: | RAGIN a Peace cones Mesa ae MMe eY Sim in eAitR mam Bef 14, 15, 16, 17

Glassbore v. Gloucester County Board of Chosen

Freeholders, 100 N.J. 134, 495 A.2d 49 (1985) 0. 9

Local No. 438 Construction and General Laborers’

Union v. Curry, 371 U.S. 542 (1963) 0... 14, 17,18

Market Street Railway Co. v. Railroad Commis-

RE Se era a IE pa iio tintin 13

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

456, rehearing denied 450 U.S. 1027 (1981) ........... 20, 21, 22

National Socialist Party v. Skokie, 482 U.S. 48

EAI. ssbape dainiccbaraoessceubadcbabeniestciniag sack iaaaanconediontasaainonlinese 17, 18, 19

TABLE OF AUTHORITIES--Continued

Page

Nebraska Press Association v. Stuart, 423 U.S.

1327 (1975) 17, 18, 19

New York v. Cathedral Academy, 434 U.S. 125

(1977) ; 16

New York Times Co. v. United States, 403 U.S. .

713 (1971) 18

Philadelphia v. New Jersey, 437 U.S. 617 (1978) ........... 7, 8, 9,

20, 21, 22, 24, 26

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) ............... 9, 10,

21, 22

Radio Station WOW, Inc. v. Johnson, 326 U.S.

See SP ea ees 13, 16

Raymond Motor Transportation, Inc. v. Rice, 434

ts SB . * peaonmemmym anna ni eer bate Nines 20

Reid v. Colorado, 187 U.S. 137 (1902) 20, 25

Republic Natural Gas Co. v. Oklahoma, 334 U.S,

62 (1948) PRAIRIE Yon TRE NEN aM 13

Richfield Oil Corp. v. State Board of Equalization,

See Slee OP CRIED. niece eccuratee ions tee 15

Rosenblatt v. American Cyanamid Co., 86 S.Ct. 1,

15 L.Ed. 2d 39 (1965) (Opinion in Chambers) 0... 13

South Carolina v. Barnwell Brothers, 303 U.S. 177,

rehearing denied 303 U.S. 667 (1938) oo cccccsssssee 20

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

| eee TN ee RE RT rd Mode Aileen 21, 25, 28

UNITED STATES CONSTITUTION CITED

Article 1, Section 8; Clause 3 20

vi

TABLE OF AUTHORITIES—Continued

Page

STATUTES CITED

Be es I fececdiclilascadclsaeapeanicndaiehdiicnnnpemanniie 13, 18, 19

RE > 5 +. Searels Oe eins cote. 1

Or a: IIE us asisenisioresasscesuineabnaunselieapinie iabsmaadain 26

ean LAN Oo ROM nr wena mow WA 26

=

SS ae OPE Ie

JURISDICTIONAL COUNTER-STATEMENT

An order for preliminary injunction was entered by

the Superior Court of New Jersey, Law Division, on No-

vember 13, 1984. Petitioner City of Philadelphia was

granted leave‘to take an interlocutory appeal and the pre-

liminary injunction was affirmed by the Superior Court of

New Jersey, Appellate Division, on February 15, 1985.

Leave for further interlocutory appeal was granted by the

Supreme Court of New Jersey which, on July 10, 1985, af-

firmed the decision of the Appellate Division. The case is

presently scheduled for a trial on the merits to commence

January 14, 1986, at which petitioner’s constitutional

claims will be further litigated and finally resolved. Since

the case involves an interlocutory order and there has been

no final judgment by the state courts, the Supreme Court

lacks jurisdiction. 28 U.S.C. §1257(3).

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COUNTER-STATEMENT OF THE CASE

On July 10, 1985, the Supreme Court of New Jersey

rencered a decision on an interlocutory appeal upholding

a preliminary injunction which seeks to avert an imminent

public health crisis in certain New Jersey municipalities by

regulating waste flows to a landfill which has virtually ex-

hausted its useful life. The preliminary injunction bars

from disposal at the landfill wastes generated in certain

municipalities both within and without New Jersey which

have alternative facilities available, while permitting mu-

nicipalities which lack alternatives to continue using the

landfill on a temporary, conditional basis. The case is

presently scheduled for trial on January 14, 1986.

1

2

Kinsley Landfill, Ine., (Kinsley) is a privately owned

landfill subject to regulation by the New Jersey Depart-

ment of Environmental Protection (DEP) as to environ-

mental concerns and by the Board of Public Utility Com-

missioners (BPU) as to economic matters. For approxi-

mately 25 years, Kinsley has operated as a major solid

waste disposal facility in southern New Jersey. Its most

recent permit, issued by DEP on September 26, 1980, au-

thorized the landfill to dispose of solid waste to a height

of 164 feet. On October 11, 1984, Kinsley notified its cus-

tomers that because it was about to reach this permitted

capacity it would close on October 28, 1984. Shortly there-

after, the Borough of Glassboro (Glassboro), one of the

municipalities disposing of solid waste at the landfill, in-

stituted an action in the Superior Court of New Jersey,

Law Division, seeking to enjoin both the closure of the

landfill and the use of the landfill for disposal of solid

waste originating in petitioner City of Philadelphia. The

defendants included Philadelphia, Gloucester County, and

DEP. Various other parties were joined or have inter-

vened in the proceedings.

The trial court conducted hearings over several days

on Glassboro’s request for a temporary restraining order.

On October 26, 1984, two days before the scheduled clos-

ure of the landfill, the court issued a restraining order. The

court found that Kinsley was rapidly approaching the end

of its useful life and that it should be closed. Although the

court found that continued use of the landfill beyond the

permitted design capacity threatened the health and safety

of the citizens of the municipality in which the landfill is

located, Deptford Township, the court found that immedi-

ate closure would cause irreparable harm to the citizens of

3

Glassboro and certain other municipalities because they

lacked alternative disposal sites. The court thus deter-

mined to temporarily restrain the landfill from closing and

ordered Gloucester county to establish ‘‘a reasonable site

for alternative solid waste disposal.’’? The Court reserved

decision on the application for restraints against peti-

tioner (Pet. App. 4a-7a).

In accordance with a suggestion made by Kinsley’s

engineer, the trial court ordered Kinsley to submit to DEP

engineering designs for an additional lift which would ex-

pand the height of the landfill by 16 feet. As ordered by

the court, DEP reviewed these plans and submitted a re-

port to the court for consideration in connection with the

application for a preliminary injunction.

The report cited, among other things, the lack of an

alternate disposal facility in New Jersey for the waste

dumped at Kinsley. Consequently, the Counties of Glouces-

ter, Camden and Salem (the three counties or the tri-

county area), which account for most of the New Jersey

generated waste deposited at the landfill, should expedi-

tiously site and implement alternative landfills. Although

established DEP procedures for opening a landfill ordi-

narily take at least two years, DEP would process the

applications on an emergent basis, so that the counties

might endeavor to implement alternate facilities within ap-

proximately one year. In the interim, the report concluded

Kinsley could safely accommodate the limited, sixteen foot

vertical expansion.

At the hearing on the preliminary injunction applica-

tion, the trial covrt accepted the DEP report in its en-

tirety and, consistent with that report, made certain find-

ings. First, the trial court found that at then current

4

levels of waste disposal at Kinsley, the additional capacity

created by the one lift expansion would be reached in ap-

proximately 314 months. Most of the solid waste then

dumped at the landfill emanated from Pennsylvania, with

virtually all of that waste coming from petitioner. For

example, petitioner provided 53.9% of the 4,738,783 cubic

yards of waste dumped at the landfill during the period of

July 1, 1983 through May 31, 1984. According to waste

flow registration statements which petitioner filed with

DEP, this volume represents a dramatic increase over

petitioner’s prior use of the landfill. For example, in 1981

to 1982 petitioner disposed of 784,770 cubic yards at the

facility, and, in 1982 to 1983 this figure had grown to

1,136,785 cubie yards. While the tri-county area account-

ed for most of the waste emanating from New Jersey which

was dumped at Kinsley, approximately 6.1% of the waste

came from 13 other New Jersey counties (Pet. App. 28a).

In an effort to conserve the capacity of the landfill,

DEP had, since 1980, required petitioner as well as the af-

fected New Jersey counties, to sign an interdistrict waste

flow agreement with Gloucester County as a condition of

continued use of the Kinsley landfill. Notwithstanding

DEP’s urging, petitioner had not executed such an agree-

ment, the basic instrument under New Jersey law for plan-

ning and managing the disposal of solid waste generated

outside a district such as Gloucester County. The trial

court found that Gloucester County had negotiated with

petitioner in good faith in an effort to reach accord on an

interdistrict wasteflow agreement, but notwithstanding

Gloucester’s effort no accord was reached. As a result,

petitioner failed to share in efforts to conserve space at the

landfill by restricting all waste flows to the facility, an es-

3]

sential component of waste flow agreements. Accordingly,

the court found that the disposal of waste by petitioner at

the landfill had ‘‘continued to escalate at. an alarming rate

unlike those districts subject to interdistrict agreements.’’

(Pet. App. 10a).

Also consistent with the DEP report, the trial court

found that petitioner, unlike the municipalities in the tri-

county area, could accommodate the closure of the Kins-

ley landfill, as petitioner’s own Commissioner of Streets

had testified. Even when Kinsley was operating under a

DEP permit, petitioner sent half of its garbage elsewhere.

Petitioner not only enjoys access to alternative sites, but

also has the equipment and material for routing its solid

waste elsewhere. In contrast, affected municipalities in

the tri-county area had no alternative to Kinsley. Unlike

petitioner, they lacked the trucks, transfer stations, equip-

ment and other resources necessary to dispose of their

waste at more distant sites. The court thus determined

that 59 municipalities in the tri-county area had no alter-

native to Kinsley and, if the landfill were closed precipi-

tously, they could not provide for waste disposal, creating

a public health crisis (Pet. App. 8a-lla; 40a-43a). Fin-

ally, consistent with the DEP report, the trial court found

that the municipalities in the tri-state area should imple-

ment vigorous recycling programs in order to reduce waste

flows (Pet. App. 13a).

In view of these findings, the trial court decided that

the most equitable result was to exclude from Kinsley the

solid waste originating in Philadelphia and from other

municipalities, both within and without New Jersey, which

had alternative disposal sites available to them. In addi-

tion, the municipalities in the tri-county area which con-

tinued to use Kinsley would be required to implement man-

6

datory recycling programs. The result of the decision was

to extend the life of the landfill for approximately one

year, the estimated time necessary for the three counties

to implement alternative sites.

Consequently, on November 13, 1984, the trial court

entered an order for preliminary injunction, ordering,

among other things that: 1) the counties of Camden,

Gloncester, an Salem develop new landfills to become op-

erational within twelve months in accordance with a specific

schedule; 2) Kinsley Landfill cease accepting by Novem-

ber 27, 1984 all solid waste generated outside of the Glouces-

ter County solid waste management district, from both

within and without New Jersey, which is not subject to

interdistrict waste flow agreements, including waste gen-

erated within Philadelphia; 3) all municipalities in Glouces-

ter, Camden and Salem Counties which utilize the Kins-

ley Landfill must, by November 27, 1984, maximize re-

eycling efforts including curb side pickup of recyclables

and mandatory recycling ordinances; 4) a minimal vertical

expansion of the Kinsley Landfill for a single additional

lift of compacted solid waste would be implemented in or-

der to provide certain communities in the tri-county area

which lacked alternatives to Kinsley with waste disposal

facilities until alternatives were developed; 5) Kinsley was

to be closed for all sludge disposal on March 15, 1985.”

* While there were subsequent orders of the trial court clari-

fying the preliminary injunction with respect to sludge dis-

posal, including that order reproduced in petitioner's appen-

dix at 123a, effective March 15, 1985 Kinsley was closed for all

sludge disposal as ordered by the trial court. This includes

sludge generated in the tri-county area. As a result, the amount

of waste generated in New Jersey which is presently barred

from Kinsley as a result of the preliminary injunction is even

greater than the quantity set forth in the decision of the Su-

preme Court of New Jersey.

|

The injunction also provided that any party could move

on one-day notice for dissolution or modification (Pet.

App. 12a-l4a).

In reaching this decision, the trial court considered

and rejected petitioner’s Commerce Clause arguments.

The court foun” that the order was consistent with the

decision of this Court in Philadelphia v. New Jersey, 437

U.S. 617 (1978), given petitioner’s failure to cooperate in

efforts to control and manage all waste flows into the

Kinsley landfill through interdistrict agreements, and the

phenomenal increase in waste flows to Kinsley’s from peti-

tioner during the preceding few years unlike waste flows

from communities governed by interdistrict agreements

(Pet. App. 94a-99a). The court also determined that its

order was a legitimate exercise of the police power given

petitioner’s admitted ability to accommodate the closure

of the landfill, whereas the communities in the tri-county

area could not and would face an imminent health hazard

the landfill closed before alternatives were developed (Pet.

App. 99a-100a).

On November 15, 1984 and again on November 21,

1984, petitioner moved before the trial court seeking re-

consideration of the November 13, 1984 order, and also

asked the court to authorize a further vertical expansion

of the landfill for a seconu 16 foot lift to accept waste

flows from Philadelphia at reduced levels. While peti-

tioner submitted expert testimony in support of its con-

tention that such a further vertical exparsion of the facil-

ity would be environmentally safe, the trial court found

the testimony of a witness presented by DEP to be more

credible and denied petitioner’s motions (Pet. App. 194a-

195a).

8

Petitioner was granted leave to take an interlocutory

appeal to the Appellate Division of Superior Court and,

on February 15, 1985, the Appellate Division rendered a

decision affirming the preliminary injunction. The Appel-

late Division found the trial court’s factual findings to be

supported by the evidence (Pet. App. 54a). The court

concluded that the case presented an ‘‘imminent public

health crisis’’ affecting the tri-county area (Pet. App. 63a),

and that this emergency differed from ‘‘the everyday, busi-

ness-as-usual commerce between the several states en-

visioned by Philadelphia v. New Jersey, 437 U.S. 617

(1978).’’ (Pet. App. 63a). The court found that the par-

ticular facts of this case presented an emergent public

health crisis ‘‘probably more compelling and dangerous

than the local burdens on commerce historically tolerated,

as shown by the ‘quarantine’ cases.’’ Thus, the trial

court’s order was not concerned with economic protection-

ism, but with ‘‘imminent considerations of public health

and safety’’ (Pet. App. 63a-64a).

Additionally, based on the record before it the court

determined that the burdens on interstate commerce were

not excessive in light of the substantial state interest in

resolving a public health crisis (Pet. App. 68a-69a). Rather,

the Appellate Division concluded that given the “veritable

doomsday” crisis affecting the tri-county area, an injune-

tion which bars from Kinsley both in-state and out-of-state

users from outside the tri-county area affected by the

emergency for a limited period of time (amounting to only

3% of the temporal life of the landfill) strikes the right

balance and is respectful of the “sanctity of our Union and

the federal system, as well as for local concerns.” (Pet.

App. 77a-78a).

9

The Supreme Court of New Jersey granted petition-

er’s motion for leave to take an interlocutory appeal and,

on July 10, 1985, rendered a decision affirming the judg-

ment of the Appellate Division. Glassboro v. Gloucester

County Board of Chosen Freeholders, 100 N.J. 134, 495

A.2d 149 (1985) (Pet. App. la-48a). The Supreme Court

of New Jersey first determined which of two standards

was applicable to its analysis of petitioner’s Commerce

Clause claims. The first standard, which applies when

a state regulation manifests simple economic protection-

ism, results in a virtual per se rule of invalidity (Pet. App.

20a). See Philadelphia v. New Jersey, supra, 437 U.S. at

624. The court stated that “a second, more flexible, stand-

ard applies when a state regulation advances legitimate

local interests and does not facially discriminate against

interstate commerce,” citing Pike v. Bruce Church, Inc.

397 U.S. 137, 142 (1970) (Pet. App. 22a).

The court contrasted the narrowly tailored prelimi-

nary injunction at issue herein, which bars Philadelphia-

generated waste from a single landfill in New Jersey and

for a limited period of time in response to an immediate

public health crisis, with the blanket ban excluding virtu-

ally al! out-of-state waste which had been held invalid in

Philadelphia v. New Jersey, supra (Pet. App. 26a). The

court determined that the primary purpose and effect of

the preliminary injunction is to avoid a public health crisis

in those communities which lack alternative waste disposal

options, and that the injunction is not an economic pro-

tectionist measure. Thus, the court held that the injunction

operated in an evenhanded manner, restricting waste flows

from those communities with alternatives to the Kinsley

landfill to the extent necessary in order to protect other

communities which need time to develop such alternatives.

10

[S]leveral reasons compel the conclusion that the place

of origin is unrelated to the injunction against the

continued dumping of Philadelphia garbage at Kins-

ley... Thirteen New Jersey counties, which account

for approximately 6.1% of the waste disposed of at

Kinsley, are also excluded. ... If no state line existed

between New Jersey and Pennsylvania, we would up-

hold the injunction as a valid exercise of the powers

of a court of equity. As an equitable remedy, the

decree preserves space at Kinsley for certain munici-

palities that, as a practical matter, do not have access

to other landfills, while remitting other municipali-

ties, including Philadelphia, to alternative sites... .

The mere fact that Philadelphia is in another state

should not imbue it with greater rights than it would

possess if it were located in New Jersey. The Com-

merce Clause was intended as a shield against dis-

crimination, not as a sword to obtain a preference.

We conclude that the injunction is not discriminatory

in purpose or effect. It is plainly not a inere pro-

tectionist measure, and, therefore, does nut constitute

a per se violation of the Commerce Clause [Pet. App.

27a-29a].

Accordingly, the court proceeded to apply the more

flexible standard set forth in Pike v. Bruce Church, Inc.,

supra, 397 U.S. at 142, and proceeded to balance the local

henefits with the burdens on interstate commerce. The

court easily determined that abating a public health emer-

gency in the tri-county area is a legitimate local concern,

as are New Jersey’s efforts to plan for the disposal of

solid waste through interdistrict agreements. In this re-

gard, the court emphasized New Jersey’s own efforts to

conserve its landfill space, noting that at “Kinsley, the

availability of the additional lift is not the result of hap-

penstance, but of New Jersey’s conservation efforts.” (Pet.

App. 58a). The court determined that New Jersey used

interdistrict agreements as a key component of its solid

11

waste management efforts (Pet. App. 38a). Yet, peti-

tioner failed to cooperate.

Significantly, the trial court found that the solid waste

generated by Camden and Salem counties, which exe-

cuted such agreements, remained constant. In con-

trast, Philadelphia, which did not sign an interdistrict

agreement, tripled the amount of garbage it dumped

at Kinsley from 1981 to 1984 [Pet. App. 39a].

The Supreme Court of New Jersey also emphasized

that “[wJere it not for the injunction ... the landfill would

be closed not only to former customers outside the tri-

county area, such as Philadelphia, but also to those within

the three counties.” The injunction was entered in order

to keep the landfill open long enough to avoid a waste dis-

posal catastrophe and resultant public health crisis in the

tri-county area. ‘‘So considered, the effect of the injunc-

tion on interstate commerce is incidental.” (Pet. App.

40a).

The court also held that even if the effect could be

characterized as more than incidental, the burden falling

on Philadelphia would not be clearly excessive, coutrast-

ing Philadelphia’s lost access to the exhausted landfill with

the “disastrous results that its continued use would visit

on the tri-county municipalities.’’ (Pet. App. 40a-4la). The

court found that the economic effect on Philadelphia, a

city of approximately 1.7 million people, would be to in-

crease its annual waste disposal costs by 5 percent for

the first year following Kinsley’s closure and 2 percent

thereafter. In contrast, the solid waste disposal budget

of Glassboro, a municipality of some 14,500 people, would

escalate from $100,000 to a million dollars per year, and

the cost to Camden County, which has a population of

approximately 500,000 people could increase annually from

12

3 million dollars to 12 miilion dollars. The court further

emphasized, however, that the closure of Kinsley’s involves

far more than mere economic considerations. The court

noted that many of the municipalities in the tri-county

area literally had no alternative to Kinsley given their

lack of access to alternative sites and their lack of the

trucks, equipment, and transfer stations needed to utilize

more distant sites. Thus, if the landfill were closed pre-

cipitously, waste would remain uncollected on the streets

of these towns. Given these facts, the court concluded that

the burden on Philadelphia is not excessive (Pet. App.

41a-43a).

Finally, the court determined that the record estab-

lished that the local interests could not be achieved as well

with a lesser impact on interstate commerce. The court

determined that a plan which afforded Philadelphia access

to the landfill, even if proportionately reduced, ‘‘ would

not merely be a less effective means of obtaining time for

the development of alternative sites, it would be ineffec-

tive.’’ The threat to local health could not be averted by

a less restrictive injunction (Pet. App. 46a). In addition,

the court accepted the credibility findings upon which the

trial court based its decision to deny Philadelphia’s mo-

tion to expand the landfill by a second additional lift.

Today, the preliminary injunction remains in effect

pending a final determination of all issues at a plenary

trial to commence on January 14, 1986. Many issues re-

main to be tried including a claim that the Kinsley landfill

can safely expand and continue operating for an addi-

tional ten years. Petitioner has also indicated its inten-

tion to produce evidence at trial in support of its Com-

merece Clause claims (Resp. App. la-4a) and these fed-

eral issues will be fully litigated and will be finally de-

termined after the trial on the merits.

13

ARGUMENT

A. THE SUPREME COURT LACKS JURIS-

DICTION TO GRANT THE WRIT OF CER-

TIORARI BECAUSE THERE HAS BEEN

NO FINAL JUDGMENT BY THE STATE

COURTS.

It is fundamental that the jurisdiction of the Supreme

Court to review State court determinations is limited to

final judgments. 28 U.S.C. § 1257; Costarelli v. Massa-

chusetts, 421 U.S. 193, 195, n.3 (1975). This Court has

said that to satisfy the ‘‘finality’’ requirement, an order

of a state court

must be subject to no further review or correction

in any other state tribunal; it must also be final as

an effective determination of the litigation and not

of merely interlocutory or intermediate steps therein.

It must be the final word of a final court.

Market Street Railway Company v. Railroad Commis-

stoner, 324 U.S. 548, 551 (1945). See also Rosenblatt v.

American Cyanamid Company, 86 S.Ct. 1, 15 L.Ed.2d 39

(1965) (Opinion in Chambers). This requires a decision

which is final as to all parties and all issues, final ‘‘as

to the whole subject-matter and as to all the causes of

action involved.’’ Collins v. Miller, 252 U.S. 364, 370

(1920) see also Republic Natural Gas Co. v. Oklahoma, 334

U.S. 62, 68 (1948). The finality requirement is designed

to avoid the evils of piecemeal review and is founded

upon considerations generally applicable to sound judi-

cial administration. Chapman v. California, 405 U.S.

1020 (1972); Radio Station WOW, Inc. v. Johnson, 326

U.S. 120, 124 (1945).

In the instant ease, a state trial court has entered an

order for preliminary injunction and, while the Supreme

14

Court of New Jersey has allowed petitioner to take an

interlocutory appeal.and has upheld the preliminary in-

junction, the case is pending in the trial court where it is

scheduled to go to trial on January 14, 1986. Petitioner

has indicated its intention to offer additional evidence at

trial relative to its Commerce Clause claims (Resp. App.

la-4a), and these issues will be litigated and _ finally

resolved at trial. Accordingly, the decision of the Su-

preme Court of New Jersey is but an intermediate step

in the ongoing state court proceedings, and there has been

no final word by the New Jersey courts on petitioner’s

Commerce Clause claims. Accordingly, the threshold re-

quirement of finality has not been met.

Of course, this Court is willing to give the concept

of finality a practical construction, Local No. 438 Con-

struction and General Laborers’ Union v. Curry, 371 U.S.

542 (1963), and, in cei tain narrowly defined situations, the

Court may treat a matter as final notwithstanding con-

tinuing state court proceedings. A definitive statement

of the types of cases where the Court has found finality

despite ongoing state court proceedings is contained in

the Court’s opinion in Cox Broadcasting Corp. v. Cohn,

420 U.S. 469, 479-485 (1975).

The first such situation arises when ‘‘for one reason

or another the federal issue is conciusive or the outcome

of further proceedings preordained. In these cireum-

stances, because the case is for all practical purposes con-

cluded, the judgment of the State court on the federal

issue is deemed final.” Cox, supra, 420 U.S. at 479. See,

e.g., Local No. 438 Construction and General Laborers’

Union v. Curry, supra, (where the state court had already

decided the merits of the case in connection with a tem-

porary injunction and petitioner had no other defense to

15

offer with respect to the permanent injunction, the state

court decision was a final disposition as a practical mat-

ter); Richfield Oil Corp. v. State Board of Equalization,

329 U.S. 69 (1946) (stipulated facts which preordain out-

come of additional state court proceedings render initial

state court decision final for purposes of Supreme Court

review).

The instant case, however, stands in sharp contrast

to the cases cited above. In the instant case, a plenary

trial will soon be held at which time the trial court will

finally resolve petitioner’s federal claims. These claims

are inextricably intertwined with the complex factual web

which will be untangled at the trial on the merits. For

example, petitioner has stated that it will try to prove

at trial that the injury which it is suffering as a result

of the preliminary injunction is not as insignificant as

appeared at the preliminary injunction hearing, and that

the municipalities in the tri-county area will not suffer

any greater injury if denied access to Kinsley than that

suffered by petitioner (Resp. App. la-4a). In addition,

another party asserts that the Kinsley landfill may safely

expand and must be permitted to continue operating for

another 10 years. Obviously, the final resolution of these

factuai issues at trial could effect the factual underpin-

nings of the State courts’ preliminary determination of

petitioner’s Commerce Clause claims, and: the trial court

may well decide to dissolve the restraints and allow peti-

tioner to resume dumping at Kinsley. Since the decision

of the Supreme Court of New Jersey does not preordain

the outcome of the upeoming trial, it is clear that the final-

ity requirement has not been satisfied in the present case.

Cox, supra, 420 U.S. at 479.

16

The second situation outlined by this Court in which

Supreme Court review may be allowed despite ongoing

State court proceedings arises in cases “in which the fed-

eral issue, finally decided by the highest court in the State,

will survive and require decision regardless of the out-

come of future State court proceedings.” Coz, supra, 420

U.S. at 480. See Radio Station WOW, Inc. v. Johnson,

supra, 326 U.S. at 124-127 (subsequent accounting could

not affect decision on federal issue regarding possession

of property); Brady v. Maryland, 373 U.S. 83, 85, n.1

(1963) (subsequent determination of ultimate sentence is-

sued cannot affect the determination that the appellant

was properly convicted) ; New York v. Cathedral Academy,

434 U.S. 125 (1977) (subsequent determination of the

amount due under a statute cannot affect the determina-

tion that the statute is constitutional). This siuation is

also inapplicable to the present case because, as set forth

above, the outcome of the factual issues to be determined

at the plenary trial might well affect the determination

of petitioner’s Commerce Clause claims. For example, if

the landfill closes on or near schedule, and accepts no

waste from any source, petitioner’s claims become moot.

Similarly, if the landfill expands and continues operating

for an additional 10 years, the imminent health crisis in

the tri-county area, which underlies the state courts’ pre-

liminary determination of petitioner’s Commerce Clause

claims, would no longer exist.

Cases ‘‘where the federal claim has been finally de-

cided, with further proceedings on the merits in the State

courts to come, but in which later review of the federal

issue cannot be had, whatever the ultimate outcome of the

case ...,” gives rise to a third situation in which this Court

17

may find finality for purposes of its review notwith-

standing continuing state court proceedings. Coz, supra,

420 U.S. at 481. Such a situation existed in California v.

Stewart, 384 U.S. 436, 498, n. 71 (1966) (decided with Mir-

anda v. Arizona). In that case, a state appellate court

reversed a criminal conviction on constitutional grounds.

Thus, if the state prevailed at a new trial the state’s con-

stitutional argument would be rendered moot and, if the

defendant were acquitted at the new trial, the state would

be precluded from further appealing the case. Clearly such

is not the situation in the instant case. As set forth above,

the trial court will be conducting a plenary trial on the

factual issues which may be dispositive of petitioner’s

federal claims. Unlike the situation in Caiifornia v. Stew-

art, supra, in the event petitioner does not prevail at trial,

issues such as double jeopardy will not preclude petitioner

from presenting its federal claims for review after a final

judgment by the state courts.

Finally, Supreme Court review has been allowed not-

withstanding ongoing state court proceedings in a line of

cases where the party seeking review might prevail in the

state courts on nonfederal grounds, rendering later review

of the federal issue unnecessary, but the judgment is

nevertheless deemed fiaal because a refusal of immediate

review might seriously erode an important federal policy.

Cox, supra, at 482-483. See Local No. 438 Construction

and General Laborers’ Union v. Curry, supra; Nebraska

Press Association v. Stuart, 423 U.S. 1327 (1975); Na-

tional Socialist Party v. Skokie, 482 U.S. 43 (1977). Yet,

as set forth below, it is clear that the present matter is not

such an extraordinary case.

Local No. 438, supra, involved an action by an employer

to enjoin a labor union from picketing, in which the union

;

Mita

18

claimed its activities were within the exclusive jurisdic-

tion of the National Labor Relations Board. The Supreme

Court of Georgia, reversing a lower court, ordered that a

preliminary injunction issue. This Court held that the

issue before its was not the legality of the picketing but

‘‘whether the Georgia courts had power to proceed with

and determine this controversy.’’ 371 U.S. at 458. Since

the State court had ‘‘finally and erroneously’’ resolved

this jurisdictional issue, ibid, this Court concluded that the

finality requirement of 28 U.S.C. § 1257 had been met. In

so ruling, the Court emphasized that if the issue were

‘‘whether a [state] court has erroneously decided a mat-

ter of federal law in a case admittedly within its jurisdic-

tion,’’ the case would not be ripe for Supreme Court re-

view. 371 U.S. at 458. Since the precise issue in the pres-

ent case is whether in issuing a preliminary injunction

the New Jersey courts have erroneously decided a matter

of federal law in a case admittedly within their jurisdic

tion, it is obvious that Local No. 438 is inapplicable.

Nebraska Press Association v. Stuart, supra, and Na-

tional Socialist Party v. Skokie, supra, are ina:yposite since

both are clearly ‘‘center[ed] upon cherished First and

Fourteenth Amendment values.’’ Nebraska Press Asso-

ciation, supra, 423 U.S. at 1327; see National Socialist

Party v. Skokie, supra, 432 U.S. at 44. Both cases in-

volved instances of prior restraint on the exercise of First

Amendment rights, situations which always bear ‘‘ ‘a

heavy presumption against [their] constitutional valid-

ity.” Id. at 1328, quoting New York Times Co. v. United

States, 403 U.S. 713, 714 (1971); see National Socialist

Party v. Skokie, supra, 432 U.S. at 44. In holding that the

imposition of prior restraints by the State courts involve

19

rights ‘‘separable from, and collateral to’’ the the merits,

ibid, quoting Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541, 546 (1949), this Court made clear that the

Skokie and Nebraska Press decisions are themselves clear-

ly inseparable from cherished First Amendment values and

the inherent repugnancy of prior restraints to such values.

432 U.S. at 44; 423 U.S. at 1329-1330. The instant case,

however, in no way involves prior restraint or First

Amendment issues and, therefore, this case does not pre-

sent the extraordinary circumstances present in the cases

cited above.

Thus it is clear that the present case does not involve

a situation in which Supreme Court review may be had not-

withstanding ongoing state court proceedings. There has

been no final determination of the litigation nor has there

been a final resolution of petitioner’s Commerce Clause

claims. All that has been decided is that the preliminary

injunction will remain in effect. pending final resolution of

all issues, including petitioner’s Commerce Clause claims,

at a plenary trial. If such a preliminary injunction con-

stitutes a final judgment within the meaning of 28 U.S.C.

§ 1257, it is difficult to see how this case could be dis-

tinguished from the many other cases arising each year in

the state courts where there has been an interlocutory or-

der notwithstanding allegations of infringement of various

constitutional rights. Quite clearly the intervention of this

Yourt in the present case would run counter to the basic

principles of sound judicial administration and would in-

volve the evils of piecemeal review sought to be avoided by

the finality requirements of 28 U.S.C. § 1257.

In sum, the writ sought should be denied because there

has been no final judgment of the highest court of the state

and thus, this Court lacks jurisdiction to grant the writ.

20

B. THE COURTS BELOW PROPERLY HELD

THAT THE PRELIMINARY INJUNCTION

DOES NOT VIOLATE THE COMMERCE

CLAUSE BECAUSE IT IS BASED UPON

AN EVENHANDED EQUITABLE SCHEME

WHICH EFFECTUATES LEGITIMATE

LOCAL PUBLIC INTERESTS WITH ONLY

INCIDENTAL EFFECTS ON INTERSTATE

COMMERCE.

Petitioner argues that the November 13, 1984 order of

the trial court imposes an impermissible burden upon in-

terstate commerce in violation of the Commerce Clause of

the United States Constitution, Article I, $8, ¢l.3. While

the Constitution gives Congress the power to regulate com-

merce among the states, many subjects of potential fed-

eral regulation under that power inevitably escape Con-

gressional attention ‘‘because of their local character and

their number and diversity.’’ South Carolina v. Barnwell

Brothers, 303 U.S. 177, 185, rehearing denied 303 U.S. 667

(1938). Philadelphia v. New Jersey, supra. In the ab-

sence of federal legislation, these subjects are open to co1i-

trol by the states so long as they act within the restraints

imposed by the Commerce Clause itself. See Raymond

Motor Transportation, Inc. v. Rice, 434 77.8. 429 (1978).

One such area in which the states have retained significant

power to regulate is that of environmental protection and

resource conservation. Minnesota v. Clover Leaf Cream-

ery Co., 449 U.S. 456, rehearing denied 450 U.S. 1027

(1981); Philadelphia v. New Jersey, supra. Moreover,

when a state is faced with an imminent public health and

welfare crisis, this Court has historically tolerated local

burdens on interstate commerce. See Asbell v. Kansas,

209 U.S. 251 (1908) ; Reid v. Colorado, 187 U.S. 137 (1902);

Baldwin v. G.A.F’.. Sellig, Inc., 294 U.S. 511 (1935); Bow-

21

man v. Chicago & Northwestern Railway Co., 125 U.S. 465

(1888).

Decisions of the Supreme Court which define the lim-

itations imposed by the Commerce Clause have attempted

to reconcile the conflict between state regulations designed

to further legitimate local interests, such as the sound

disposal of solid waste, and the unavoidable burden which

such regulation may have upon interstate commerce.

Sphorhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 956-

957 (1982) ; Philadelphia v. New Jersey, supra, 437 U.S. at,

623-624. If the state regulation purporting to promote

environmental purposes is in reality ‘‘simply economic pro-

tectionism,’’ the Supreme Court has applied a ‘‘virtual

per se rule of invalidity.’’ Minnesota v. Clover Leaf

Creamery Co., supra, 449 U.S. at 471; Philadelphia v. New

Jersey, supra.

However, where valid local interests are advanced and

there is not patent discrimination against interstate trade,

the Court has adopted a more flexible standard, stated in

Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970), as

follows:

where the statute regulates evenhandedly to effec-

tuate a legitimate local public interest, and its effects

on interstate commerce are only incidental, it will be

upheld unless the burden imposed on such commerce is

clearly excessive in relation to the putai.ve local bene-

fits... If a legitimate purpose is found, then the

question becomes one of degree. And the extent of the

burden that will be tolerated will of course depend on

the nature of the local interest involved, and on

whether it could be promoted as well with a lesser

impact on interstate activities.

22

See also, Minnesota v. Clover Leaf Creamery, Co., supra,

449 U.S. at 471; Philadelphia v. New Jersey, supra, 437

U.S. at 624.

Thus, the Commerce Clause test is to determine wheth-

er a) the challenged state regulation is patently diserim-

inatory, and, if not b) whether it effectuates legitimate

local purposes, and c) whether the incidental burden on

interstate commerce is excessive in relation to the local

interest served. Pike v. Bruce Church, Inc., supra; Phila-

delphia v. New Jersey, supra.

Petitioner’s reliance on Philadelphia v. New Jersey,

supra, is misplaced. In that case the Supreme Court held

invalid a New Jersey statute which imposed a total and

absolute ban on the disposal in New Jersey of virtually all

solid waste generated outside of the State solely oecause

of its origin. This Court held at 437 U.S. at 626-628,

But whatever New Jersey’s ultimate purpose, it may

not be accomplished by discriminating against articles

of commerce coming from outside of the state unless

there is some reason apart from their origin, to treat

them differently ....

The New Jersey law at issue in this case falls squarely

within the area that the Commerce Clause puts off

limits to state regulation. On its face, it imposes on

out-of-state commercial interests the full burden of

conserving the State’s remaining landfill space. [Km-

phasis added}.

In the instant ease, however, the trial court faced an imme-

diate crisis and determined that extraordinary, emergent.

equitable relief was necessary in order to avoid dire couse-

quences. The court responded by balancing the equities,

entering a preliminary injunction based upon evenhanded

considerations, an injunction which is necessary to effectu-

23

ate a legitimate local interest and which poses only inci-

dental and de minimis burdens on interstate commerce.

There is no lawful disposal capacity remaining at the

Kinsley Landfill. The landfill has reached its authorized

limits; there is no more room. Under these circumstances,

the New Jersey courts have held that if there is continued

use of the landfill beyond its useful life people residing

near the facility will be seriously and deleteriously af-

fected. (Pet. App. 6a). The preliminary injunction thus

ordered the three counties to implement new, alternative

landfills on an unprecedented accelerated schedule. Yet,

the New Jersey courts have also held that until these al-

ternative facilities are established, the municipalities in

these counties have no alternative to Kinsley for disposal

of their waste and would thus face a public health emer-

gency if the landfill is closed before these alternatives be-

come available. Petitioner, however, would suffer no com-

parable injury if the landfill were closed. Uncollected

waste would not sit on the streets of Philadelphia because

there are alternative sites available to it, and petitioner

has the equipment, material and resources to transport

waste to these sites, unlike the municipalities in the tri-

county area (Pei. App. 10a-lla; 40a-43a; 59a; 63a-64a).

Moreover, the court found that while a little more life could

be squeezed out of the landfill and that one more lift could

be added consistent with minimal environmental standards,

if this small remaining safe disposal capacity is to be ef-

fective in easing the waste disposal emergency in the tri-

county area by lasting until the alternatives become opera-

tional, waste flows to Kinsley must be substantially re-

duced.

Given these facts, the trial court’s response was not an

across-the-board ban on disposal anywhere in New Jersey

24

of virtually all waste generated outside of the State.

Rather, the court carefully crafted a limited remedy, re-

stricting access to a single landfill and for a limited time

period by barring both in-state and out-of-state waste from

outside the area affected by the emergency. Further, the

court did not merely transfer a problem across state lines,

but averted a local emergency by restricting waste from

communities such as petitioner, which admittedly could,

and in fact have, accommodated the restriction without

adverse public health consequences. The contest was be-

tween petitioner, a generator of waste which conceded it

had alternatives (albeit slightly more expensive) avail-

able to accommodate its waste flow, and certain New Jer-

sey generators without alternatives or indeed time to de-

velop same if they were deprived of what limited life re-

mained at Kinsley.

Thus, the injunction is not mere economic protection-

ism. Rather, as stated by the Supreme Court of New

Jersey, the injunction simply ‘‘treats Philadelphia like the

thirteen New Jersey counties that formerly used Kinsley.”

(Pet. App. 25a).

If no state line existed between New Jersey and Penn-

sylvania, we would uphold the injunction as a valid

exercise of the powers of a court of equity. ... The

mere fact that Philadelphia is in another state should

not imbue it with greater rights than it would possess

if it were located in New Jersey. The Commerce Clause

was intended as a shield against discrimination, not

as a sword to obtain a preference [Pet. App. 28a-29a }.

Thus, Philadelphia v. New Jersey, supra, is not only dis-

tinguishable from the instant case but, it is totally distinct,

and petitioner’s reliaie on that precedent is devoid of

merit.

deine Vea ian ENN Lie Mota ts ae

25

Indeed, the imminent public health emergency present

in the instant case presents a situation more compelling

and dangerous than that presented in other cases, such as

the ‘‘quarantine” cases, where local burdens on commerce

historically have been tolerated. See Asbell v. Kansas,

supra; Reid v. Colorado, supra; Baldwin v. G.A.F. Sellig,

Inc., supra; Bowman v. Chicago & Northwestern Railway

Co., supra. The decision of the Supreme Court of New

Jersey represents not the “flaunting” of the dictates of

this Court, but an affirmation of this Court’s determina-

tion that the preservation of a vital resource in times of

severe shortage for the purpose of protecting the health

of their citizens is at the core of the states’ police power

and, thus, such health and safety regulation, as opposed

to economic protectionism, can withstand constitutional

scrutiny. Sporhase v. Nebraska ex rel. Douglas, supra.

In sum, it is clear that the preliminary injunction is

not mere economic protectionism, but is based upon neu-

tral criteria which are not patently discriminatory against

interstate commerce because the purpose and effect of the

order is to regulate the waste flow to Kinsley not simply

as a result of the state of origin of the waste, but, rather,

based upon whether or not a community, wherever located,

will face a public health crisis if its access to Kinsley were

immediately terminated.

In addition, it is submitted that it cannot be seriously

disputed that the order of the trial court serves legiti-

mate local interests. Clearly, the State of New Jersey

has an interest ‘n averting a public health emergency with-

in the tri-county area. Similarly, the state has an inter-

26

est in managing and conserving its waste disposal ca-

pacity through regional planning and coordination of solid

waste disposal including interdistrict agreements. Indeed,

Congress itself has recognized the need for the develop-

ment of comprehensive state plans for solid waste disposal

and, implicitly, this requires the planned management of

waste flows. In enacting the Resource Conservation and

Recovery Act of 1976, 42 U.S.C.A. §§ 66901-6987, Congress

has expressed a strong policy preference for resource re-

covery. See 42 U.S.C.A. § 6941. Resource recovery can.

not be accomplished if waste streams are not directed. See

Central Iowa Refuse Systems, Inc. v. Des Moines Metro-

politan Solid Waste Agency, 715 F.2d 419 (8th Cir. 1983)

(restraint on waste flows essential to development of com-

prehensive waste flow plan). The preliminary injunction

in the instant case recognizes local responsibilities in this

area, responsibilities that clearly require integrated plan-

ning.

Petitioner, however, has failed to cooperate in New

Jersey’s efforts to manage and conserve its waste disposal

capacity by restricting the flow of all waste into the Kins-

ley Landfill, an approach which this Court has endorsed.

See Philadelphia v. New Jersey, supra, 437 U.S. at 626.

Rather, as found by the courts below, while waste flows

from petitioner increased threefold, waste flows from

Camden and Gloucester counties, which did sign inter-

district agreements, remained constant (Pet. App. 9a; 39a).

Had petitioner joined in these efforts to control all waste

flows to Kinsley, the capacity of the landfill would not be

exhausted, the present crisis in the tri-county area would

not exist, and sufficient capacity would exist at the land-

fill to accommodate waste flows from petitioner and the

other communities as well.

WA Tena na be he cme ate ne Neer —

27

Further, as set forth above, it is clear that the bur-

den on interstate commerce is not excessive in relation

to the local interest served. Philadelphia can accommo-

date the closure of the landfill, albeit at slightly higher

costs for waste disposal, ranging from 2% to 5%. Munici-

palities in the tri-county area lack feasible alternatives

to Kinsley, and lack the trucks, equipment, transfer sta-

tions, material and resources to transport their wastes

to more distant locations (Pet. App. 40a-43a).

Finally, the Supreme Court of New Jersey properly

determined that New Jersey’s legitimate local ‘interests

could not be promoted in a manner which has a lesser im-

pact on interstate commerce. In this regard, Philadelphia

argues that all former users should be allowed continued

aecess at proportionately reduced levels. Yet what this

argument ignores is the very factual basis upon which

the injunction is based. Were it not for the emergent

need of municipalities in the tri-county area, Kinsley would

be closed to all users. In order to avert a public health

erisis in Southern New Jersey, Kinsley has been kept open

to give those municipalities which lack alternative waste

disposal options time to develop such alternatives. Yet,

a plan that afforded petitioner access, even if proportion-

ately reduced, would foreshorten the life of the landfill

and merely delay the public health crisis for a few months.

Thus, as stated by the Supreme Court of New Jersey:

Such a plan would not merely be a less effective means

of obtaining time for the development of an alterna-

tive site; it would be ineffective. See Minnesota v.

Clover Leaf Creamery Co., supra... . So viewed,

Philadelphia’s demand that the tri-county municipali-

ties incur substantial costs for a short-term solution

is not so much a request for a less discriminatory al-

28

ternative as it is an attempt to place an excessive

burden on those municipalities. The ideal is even-

handedness. Sporhase v. Nebraska, supra, 458 U.S.

at 956.

In sum, it is clear that the injunction is an evenhanded

equitable remedy which is necessary to avoid a local publie

health emergency and which has only incidental and de

minimus effects on interstate commerce.

ry

Ww

CONCLUSION

It is fundamental that this Court has jurisdiction to

review only final judgments of state courts. i.e., judg-

ments which are final as an effective determination of the

litigation and not merely an intermediate step therein. In

the present case, while the Supreme Court of New Jersey

has upheld a preliminary injunction on interlocutory ap-

peal, that decision is but an intermediate step in ongoing

litigation. <A trial is scheduled for January 14, 1986 at

which time petitioner and other parties will present evi-

dence on a variety of factual issues whicii are inextricably

intertwined with petitioner’s federal claims. Since the

threshold requirement of finality has not been met, the

writ of certiorari should be denied.

In addition, it is clear that the preliminary injunction

does not discriminate against interstate commerce. Rath-

er, faced with an extraordinary public health emergency,

the preliminary injunction represents a proper balance of

the equities. It provides for an orderly closure of a land-

fill which is virtually exhausted by allowing its continued

use on a temporary, conditional basis and until alternatives

29

can be implemented by those communities which would

suffer irreparable injury if the landfill were precipitously

closed, while excluding those communities able to accom-

modate the closing of the landfill with minimal inconven-

ience. Indeed, the facts of the last several months have

demons.rated how easily petitioner can accommodate the

closure of the landfill. In addition, petitioner’s failure to

accept an interdistrict waste flow agreement and conse-

quent refusal to share equally with New Jersey communi-

ties in the efforts to restrain the flow of all waste to the

Kinsley Landfill has itself contributed to the rapid ex-

haustion of capacity at the facility and helped precipitate

the crisis which gives rise to the preliminary injunction.

Thus, the injunction provides an evenhanded, nondiscrim-

inatory regulatory approach, serving legitimate local in-

terests, with nothing more than incidental effects on inter-

state commerce.

For the foregoing reasons, the petition for a writ of

certiorari in this case should be denied.

Respectfully submitted,

Irwin I. KtmMELMAN

Attorney General of New Jersey

Attorney for Respondents, State

of New Jersey, Department of

Environmental Protection and

Commissioner Robert EF. Hughey

Micuaen R. Coie

First Assistant Attorney General

Of Counsel

Pau. H. ScHNEIDER

Deputy Attorney General

On the Brief

Counsel of Record

DATED: November 4, 1985

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APP’ NDIX

TOMAR, PARKS, SELIGER, SIMONOFF

& AVDOURIAN

A Professional Corporation

41 South Haddon Avenue

Haddonfield, New Jersey 08033

(609) 429-1100

Attorneys for The City of Philadelphia

SUPERIOR COURT OF NEW JERSEY

LAW DIVISIO \

GLOUCESTER C /UNTY

DOCKET NO, L-070476-84 P.W.

Civil Action

FACTUAL AND LEGAL CONTENTIONS

BOROUGH OF GLASSBORO, et al.,

Plaintiffs,

v.

GLOUCESTER COUNTY BOARD OF CHOSEN

FREEHOLDERS, et al.,

Defendants.

I. Lack of Current Solid Waste Emergency:

Current waste flows into Kinsley from the tri-county

generators permitted disposal access thereto are averaging

between 5,000 and 6,000 cubic yards in truck per day. Ac-

cording to Kinsley’s exeprt, the single vertical lift’s re-

maining capacity as of July 11, 1985 was 1,290,000 eubic

yards in truck and would last until approximately April

1986 before being fully used up at current flow levels.

Camden County generators will stop using Kinsley for

2a

solid waste disposal sometime prior to November 15, 1985

and possibly as early as late September 1985. Gloucester

County will, by its own admission, have its County land-

fill in South Harrison Township operational by November

15, 1985. Other landfills in southern New Jersey, particu-

larly in Atlantic and Cape May Counties have solid waste

disposal capacity which could, with NJDEP and BPU co-

operation, be utilized by tri-county generators in the event

of any dislocation of their above-described waste manage-

ment plans. Temporary solid waste collecting and hauling

services are available to tri-county generators to replace

or supplement their present arrangements in the event dis-

posal outside of Gloucester County would become neces-

sary. Kinsley wishes to commence closure procedures on

November 15, 1985 or as soon thereafter as possible and

requires the single lift to be filled to its design capacity in

order to effect an environmentally-sound closure in accord-

ance with NJDEP requirements. Tri-county waste flows

will be reduced further if Camden County generators cease

using Kinsley prior to November 15, 1985 and if both Cam-

den County and Gloucester County generators cease same

on November 15, 1985. Accordingly, the City of Phila-

delphia should be permitted to resume solid waste disposal

at Kinsley in such volume as will ensure that Kinsley

reaches capacity on November 15, 1985 or as soon therc-

after as is feasible. The City may not, consistent with the

Commerce Clause, continue to be excluded from Kinsley

in the absence of any present solid waste eniergency in the

tri-county area as a basis for permanent injunctive relief.

3a

II. Exclusion Because of a Lack of Interdistrict Waste

Flow Agreement Would Be Improper:

The City will demonstrate that it was not at fault for

the non-consummation of an interdistrict waste flow agree-

ment with Gloucester County between the time it was first

requested by NJDEP to enter into same and November

1984. Accordingly, there is no valid factual or legal basis

for excluding the City from Kinsley by reason of the ab-

sence of such an agreement.

III. Arbitrary and Capricious Action by the County Free-

holders in Denying Kinsley’s Expansion Application:

The City adopts by reference the contentions of Kin-

sley Landfill with respect to the unconstitutional anti-

Philadelphia animus of the Freeholders being the prime if

not sole motivating factor in the Freeholders decision to

deny Kinsley’s expansion application and thereby precipi-

tate a manufactured solid waste disposal crisis which would

result in Philadelphia’s ouster from Kinsley.

IV. Equitable Discretion

The City contends that all users of Kinsley as of Octo-

ber 1984 (except the sludge depositors who are now denied

access by NJDEP order) should bear equally the burdens

of dislocation resulting from Kinsley’s reaching capacity

and being expanded only by a single vertical lift of approxi-

mately 1.8 million eubie yards in truck. The Court should

treat all similarly-situated Kinsley users similarly and re-

quire pro-rata reductions in waste flows. The City has

now exhausted all currently-available alternatives for its

waste flow which had been going into Kinsley and thus is

4a

identically-situated with the tri-county generators with re-

spect to the need for access to Kinsley.

Respectfully submitted,

TOMAR, PARKS, SELIGER,

SIMONOFF & ADOURIAN

Attorneys for the City of Philadel-

phia

BY: /s/ Steven Kudatzky

DATED: August 9, 1985