Amicus Curiae Brief — Meyer v. National Solid Wastes Management Ass'n

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No. 95-1079 SIL wy

WAR 4 1996

In The 9

Supreme Court of the United Sfafes ”

October Term, 1995

ry

GEORGE MEYER,

vy, ._ Petitioner,

NATIONAL SOLID WASTES MANAGEMENT

ASSOCIATION, VALLEY SANITATION COMPANY,

INC., LAND RECLAMATION COMPANY, and

WASTE MANAGEMENT OF WISCONSIN, INC.

Respondents.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

3

BRIEF OF AMICUS CURIAE, STATES OF

NORTH DAKOTA, CALIFORNIA, DELAWARE,

FLORIDA, IDAHO, INDIANA, KENTUCKY,

MAINE, MICHIGAN, MINNESOTA, MISSISSIPPI,

NEW HAMPSHIRE, NEW MEXICO, NEW YORK,

OHIO, TEXAS, AND WEST VIRGINIA DIVISION

OF ENVIRONMENTAL PROTECTION, AND

IN SUPPORT OF PETITIONER

¢

State of North Dakota

Herp: Herrkamp

Attorney General

WituraM J. De-more*

Assistant Attorney General

Office of Attorney General

State Office Building

900 East Boulevard

Bismarck, ND 58505-0041

Telephone (701) 328-5151

Facsimile (701) 328-5200

*Counsel of Record

(Additional counsel listed

on inside cover.)

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 q

OR CALL COLLECT (402) 342-2831 c \

Honorable Heidi Heitkamp

Attorney General

State of North Dakota

600 East Boulevard Avenue

Bismarck, ND 58505-0040

Honorable Dennis E.

Lungren

Attorney General

State of California

1515 K Street

Sacramento, CA 95814

Honorable M. Jane Brady

Attorney General

State of Delaware

Carvel State Office

Building

820 North French Street

Wilmington, DE 19801

Honorable Robert A.

Butterworth

Attorney General

State of Florida

The Capitol

PL 01

Tallahassee, FL 32399-1050

Honorable Alan G. Lance

Attorney General

State of Idaho

Post Office Box 83720

Boise, ID 83720-0010

Honorable Pamela Fanning

Carter

Attorney General

State of Indiana

Indiana Government

Center South

402 West Washington Street

Indianapolis, IN 46204

Honorable A.B. Chandler III

Attorney General

State of Kentucky

State Capitol, Room 116

Frankfort, KY 40601

Honorable Andrew

Ketterer

Attorney General

State of Maine

State House Building

Station #6

Augusta, ME 04333

Honorable Frank J. Kelley

Attorney General.

State of Michigan

Post Office Box 30212

525 West Ottawa Street

Lansing, MI 48909-0212

Honorable Hubert H.

Humphrey III

Attorney General

State of Minnesota

State Capitol, Suite 102

St. Paul, MN 55155

a , :

Honorable Mike Moore

Attorney General

State of Mississippi

Department of Justice

Post Office Box 220

Jackson, MS 39205-0220

Honorable Jeffrey R.

Howard

Attorney General

State of New Hampshire

State House Annex

33 Capitol Street

Concord, NH 03301-6397

Honorable Tom Udall

Attorney General

State of New Mexico

Post Office Drawer 1508

Sante Fe, NM 87504-1508

Honorable Dennis C. Vacco

Attorney General

State of New York

Department of Law

State Capitol

Albany, NY 12224

Honorable Betty D.

Montgomery

Attorney General

State of Ohio

State Office Tower

30 East Broad Street

Columbus, OH 43215

Honorable Dan Morales

Attorney General

State of Texas

Capitol Station

Post Office Box 12548

Austin, TX 78711-2548

Division of Environmental

Protection

State of West Virginia

10 McJunkin Road

Nitro, WV 25143-2506

i

TABLE OF CONTENTS

Serene Ger MRPOROOETINS, (255.5, ,. 53... s,s ii

INTEREST OF THE AMICI STATES AND SUMMARY

OF REASONS TO GRANT WRIT................ 1

1. THE COURT OF APPEALS DECISION CON-

FLICTS WITH BOTH RECENT AND LONG-

STANDING DECISIONS OF THIS COURT

WHICH PROTECT THE RIGHT OF STATES

TO REGULATE LOCAL CONCERNS SUCH

AS RECYCLING WHEN SUCH REGULATIONS

ARE NON-ECONOMIC AND PROTECT LOCAL

HEALTH AND SAFETY, NATURAL RE-

SOURCES, OR THE ENVIRONMENT .......... 3

a. STATES MAY LOSE THE ABILITY TO

IMPLEMENT EFFECTIVE HEALTH AND

SAFETY REGULATIONS ................... 4

b. CONTRARY TO THE DECISIONS OF THIS

COURT, THE COURT OF APPEALS CON-

CLUDED THAT ANY “PRACTICAL

IMPACT” ON “ECONOMIC ACTIVITY

COMPLETELY OUTSIDE THE STATE” VIO-

LATES THE DORMANT COMMERCE

II ere re oo me 10

c. THE COURT OF APPEALS’ DECISION NUL-

LIFIES STATE REGULATION BASED ON

THE PRECEPTS OF FEDERALISM.......... 14

2. THIS COURT MUST SETTLE THE CONFLICT

BETWEEN CIRCUITS CONCERNING

WHETHER AN EVENHANDED REGULATION

WHICH HAS AN EXTRATERRITORIAL EFFECT

VIOLATES THE DORMANT COMMERCE

- RRR RREET SRE aaa 18

So RSE PE Ae ee en 19

ii

TABLE OF AUTHORITIES

Page

Cases

Austin v. Tennessee, 179 U.S. 343 (1900)............-. 16

Baldwin v. Seelig, 294 U.S. 511 (1935).............. 4,11

Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520

(RSID ios ine seed on 04 euee Bbs 89550 EER eT 14, 15

Boston & M.R.R. v. Armburg, 285 U.S. 234 (1932)..... 16

Brotherhood of Locomotive Firemen and Enginemen v.

Chicago, R. I. & P. R. Co., 393 U.S. 129 (1968) ..14, 15

Chemical Waste Management, Inc. v. Hunt, 504 U.S.

Ct Bey s eee pep ee res ets eee oes Pee 12

Collins v. American Buslines, Inc., 350 U.S. 528

tee ees wer Fee ELS pee te Fey fee 16

Cotto Waxo Co. v. Williams, 46 F.3d 790 (8th Cir.

ROD a5 FSG 5s Sass cease Chan eckweusa ees 2, 18

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

(ROG) a ob ok tb bon edn ydcssia end bundapoes baad eeharis 14

Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421

CRORED 0 000605 wunvenss spepeneneh ebabe chaehios gees. 5

Dean Milk Co. v. Madison, 340 U.S. 349 (1951) ....... 12

Douglas v. Seacoast Prod., Inc., 431 U.S. 265 (1977)....4, 14

Edgar v. MITE Corp., 457 U.S. 624 (1982) ............ 11

Fort Gratiot Landfill v. Michigan Dep't of Natural

Resources, 504 U.S. 353 (1992)......... 4, 9, 12, 13, 17

Garcia v. San Antonio Metropolitan Transit Author-

yp, GED UB. Te CRON oc cee vcdvanieadereceicias 3, 17

Geer v. Connecticut, 161 U.S. 519 (1896)............... 5

iii

TABLE OF AUTHORITIES - Continued

Page

Gibbons v. Ogden, 22 U.S. 1 (1824)............. pircaden 4

H.P. Hood & Sons v. Du Mond, 336 U.S. 525

PRE ia si Ake es wn as ek ee De eos cos 4,5, 6

Healy v. Beer Institute, 491 U.S. 324 (1989)....11, 12, 16

Henderson Co. v. Thompson, 300 U.S. 258 (1937)....... -

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

SOT ON ccna x been PS Fe OL EES oe ee oe Oy ee ee 5

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

| RE ire by Pe Pet gs waht dee kk ap ? Va

Jones v. Rath Packing Co., 430 U.S. 519 (1977)........ 14

Kassel v. Consolidated Freightways, 450 U.S. 662

CRORES sous bate cree Ka ad cane cect araivkas 4,5

Louisville & Nashville R. Co. v. Kentucky, 183 U.S.

ee Sa bind nck bos kantasao ened ac cene nae s'searel 16

Maine v. Taylor, 477 U.S. 131 (1986) ............... 6, 12

Maryland v. Louisiana, 451 U.S. 725 (1981) ........... 14

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

CRNA sticide Kha g.ncd dened dev bcbbibs Cede back 5, 6, 11

Missouri ex rel. Barrett v. Kansas Nat. Gas Co., 265

SEA Oe CD hain thas Cin ds Rone dare ebad sds Peeds 11

New State Ice Co. v. Liebmann, 285 U.S. 262 (1932).... 15

Prem Wem & ILE. Fee Us BOG COPE: oiccc ccc sccccn, 11

Oregon Waste Systems v. Department of Env. Quality,

ee eee Fi POPPE arc eee eee eel eTee 12, 13

Pacific Gas & Elec. v. State Energy Resources

Coe, GR GE. TO CRO oc bo vnc cebu doc tewecs 14

iv

TABLE OF AUTHORITIES - Continued

Page

Philadelphia v. New Jersey, 437 U.S. 617 (1978)...... 4,12

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)........ 11

Public Utilities Comm'n of Rhode Island v. Attleboro

Steam & Elec. Co., 273 U.S. 83 (1927)............-. 11

Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429

C29TE) oo cp cnecanbececeseccta cakheueesebaesveesnnear 5

Reeves, Inc. v. Stake, 447 U.S. 429 (1980)............. 15

Rice v. Sante Fe Elevator Corp., 331 U.S. 218 (1947) .... 14

Sherlock v. Alling, 93 U.S. 99 (1876)...........-.---+- 16

Simpson v. Shepard, 230 U.S. 352 (1913).............. 16

Smith v. Maryland, 59 U.S. 71 (1855).............-.5-. 5

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

(UDGRD oc ccccccccscsestecineecnstanedeaedeeeeaahau 4

St. Louis, S.F. Ry. v. Public S.C., 261 U.S. 369 (1923) ..... 3

U.S. v. Lopez, 115 S. Ct. 1624 (1995)........... 4, 11, 16

Vance v. Bradley, 440 U.S. 93 (1979).............00005- 5

Wilison v. Black Bird Creek Marsh Co., 27 U.S. 245

CREED ong 0. 0 se ncccuacnscandcedise Uh nbeeisie sesh eda 4

Wyoming v. Colorado, 353 U.S. 953 (1957) ............. 5

Younger v. Harris, 401 U.S. 37 (1971)................. 16

STATUTES

42 U.S.C. § 6901(a)(1), (6), (7), & (11)............005. 7

i UB. B Ga hs 8 crak eves ccgieccgsecdceusids 7

GE DBR. | Ge ih os Ladtcdadinsdeviasccecaktscchéaen 7

Vv

TABLE OF AUTHORITIES - Continued

Page

A FS PEE TET e TET TOTES PoC OTe 7

ee een IS oc SG bbc acc cessceccacscvcsoves 7

57 Fed. Reg. 37,194 at 37,195 (1992).................. 7

ee ees ey err re ee 9

N.D. Admin. Code §§ 33-20-01.1-03, 04, 06, 07, 08,

Wy WRAL ECON chy EGceEbs oPaubeeleabetesbcsdicksvaces 9

N.D. Admin. Code §§ 33-20-03.1-02(6)(b) & (g)

ins Oise ak ocee Fes ead ae adew eee obec dee g

N.D. Admin. Code § 33-20-04.1-03(1)(a) and (1)(h)..... 9

ee Ee ee te

a alendel

INTEREST OF THE AMICI STATES AND

SUMMARY OF REASONS TO GRANT WRIT

This Court has long recognized the power of states to

provide the traditional local government services — police

and fire protection, roads, lighting, traffic control, water,

sewage, waste control, and other matters affecting local

health and safety. The amici curiae states, through their

respective Attorneys General, join in this brief because

the decision of the Seventh Circuit Court of Appeals

threatens their ability to exercise these local police

powers.

The Court of Appeals held that Wisconsin’s recycling

statute violates the dormant Commerce Clause because it

has a “practical impact” on interstate commerce. Virtually

every state activity has some impact on interstate com-

merce. The Court of Appeals’ decision invites dormant

Commerce Clause challenges to any state law which has a

“practical impact” on interstate commerce, no matter how

small that impact. This conflicts with the decisions of this

Court that recognize states may affect interstate com-

merce in the exercise of their police powers.

This Court has consistently recognized that the dor-

mant Commerce Clause, like the Supremacy Clause, gives

increased deference to states’ evenhanded regulatory

powers that involve protection of health and safety, natu-

ral resources, the environment, and other areas states

traditionally regulate. Challenges to such regulations

must overcome a strong presumption of validity. Even

where commerce is affected, this Court recognizes that

states retain broad authority under their police powers to

develop effective policies to address particular local con-

cerns.

Both Congress and the states have defined resource

recovery, which includes recycling, as a cornerstone of

environmental protection. Congress expressly recognizes

that waste control and resource recovery should continue

to be primarily the function of State, regional, and local

agencies. Further, the states have traditionally occupied

the resource recovery arena. This Court has recognized

resource recovery regulation as an area of legitimate state

interest.

The Court of Appeals in this case second-guessed the

judgment of the Wisconsin legislature without giving

proper deference and consideration to these principles.

An evenhanded regulation which arguably affects com-

merce, such as Wisconsin’s recycling statute, should not

be summarily invalidated because it may have some

“practical impact” on interstate commerce.

Further, this Court must resolve the conflict between

circuits concerning whether an evenhanded regulation

which has an extraterritorial effect violates the dormant

Commerce Clause per se. Cempare the Court of Appeals’

decision in this case with Cotto Waxo Co. v. Williams, 46

F.3d 790 (8th Cir. 1995).

The amici states respectfully request that this Court

grant Wisconsin’s Petition for Writ of Certiorari because

(1) the Court of Appeals’ decision conflicts with applica-

ble decisions of this Court and (2) this Court must settle

the conflict between circuits concerning whether an even-

handed regulation which has an extraterritorial effect

violates the dormant Commerce Clause per se.

¢

REASONS FOR GRANTING THE WRIT

1. THE COURT OF APPEALS’ DECISION CON-

FLICTS WITH BOTH RECENT AND LONG-

STANDING DECISIONS OF THIS COURT

PROTECTING THE RIGHT OF STATES TO REGU-

LATE LOCAL CONCERNS, SUCH AS RECYCLING,

WHEN SUCH REGULATIONS ARE NON-ECO-

NOMIC AND PROTECT LOCAL HEALTH AND

SAFETY, NATURAL RESOURCES, OR THE ENVI-

RONMENT.

“Virtually every state activity, like virtually every

activity of a private individual, arguably ‘affects’ inter-

state commerce.” Garcia v. San Antonio Metropolitan Transit

Authority, 469 U.S. 528, 582 (1985) (O’Connor, J., dissent-

ing). Yet in this case, the Court of Appeals determined the

Wisconsin recycling statute violates the dormant Com-

merce Clause because it has a “practical impact” on “eco-

nomic activity completely outside the State.”

PETITIONER’S APPENDIX, p. 11. Under the Court of

Appeals’ analysis, any statute or regulation which has a

practical impact, no matter how small, on economic activ-

ity completely outside the state will constitute a per se

violation of the dormant Commerce Clause. PETI-

TIONER’S APPENDIX, pp. 11-23. This conflicts with a

long line of decisions of this Court recognizing that “in

the exercise of a necessary power” states “may affect”

interstate commerce. See, e.g., St. Louis-S.F. Ry. v. Public

S.C., 261 U.S. 369, 371 (1923).

a. STATES MAY LOSE THE ABILITY TO IMPLE-

MENT EFFECTIVE HEALTH AND SAFETY

REGULATIONS.

This Court has long distinguished between economic

protectionism, on the one hand, and health and safety

regulation, on the other. Fort Gratiot Landfill v. Michigan

Dep’t of Natural Resources, 504 U.S. 353, 365-66 (1992);

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

(1982); Philadelphia v. New Jersey, 437 U.S. 617, 623-24

(1978); H.P. Hood & Sons v. Du Mond, 336 U.S. 525, 533 |

(1949). From its earliest decisions, this Court recognized |

the regulatory authority of a state is greatest in matters

affecting the “health” of its citizens. Willson v. Black Bird

Creek Marsh Co., 27 U.S. 245, 250 (1829) (holding Delaware

could safeguard the health of its citizens by draining a

marshy creek which was an interstate waterway even

though such action blocked federally licensed boating);

Gibbons v. Ogden, 22 U.S. 1, 205 (1824). Compare U.S. v.

Lopez, 115 S. Ct. 1624, 1647 (1995) (Thomas, J., concurring) |

(long recognized validity of “state inspection, quarantine,

and health laws” even when they have “substantial

effects” on interstate commerce).

In addition, this Court gives great deference to states’

regulatory powers when they involve matters of local

concern such as regulation of the environment and natu-

ral resources. Kassel v. Consolidated Freightways, 450 U.S.

662, 670 (1981). See Douglas v. Seacoast Prod., Inc., 431 U.S.

265, 287 (1977) (Rehnquist, J., concurring); Baldwin v.

Seelig, 294 U.S. 511, 525 (1935). This Court has upheld a

variety of regulations designed to conserve and maintain

the collective natural resources of the state. See Sporhase,

458 U.S. at 956 (upholding three of four groundwater

protection regulations); Minnesota v. Clover Leaf Creamery

Co., 449 U.S. 456 (1981) (resource recovery); Hughes v.

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

recovery); Huron Portland Cement Co. v. Detroit, 362 U.S.

440 (1960) (local air quality); Wyoming v. Colorado, 353

U.S. 953 (1957) (apportionment of surface water); Geer v.

Connecticut, 161 U.S. 519 (1896) (wildlife protection);

Smith v. Maryland, 59 U.S. 71 (1855) (fisheries protection).

The district court in this case found Wisconsin’s

recycling statute protected health and safety by reducing

the risk of environmental contamination. PETITIONER'S

APPENDIX, p. 46. Legislative measures enacted to pro-

mote health and safety are accorded particular deference.

Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429, 443

(1978); H.P. Hood, 336 U.S. at 533. Challenges to state

public safety regulations must overcome a “strong pre-

sumption of their validity.” Raymond Motor, 434 U.S. at

444. Courts will not second-guess legislative judgments

about the importance of health and safety in comparison

to the burdens on interstate commerce. Kassel, 450 U.S. at

670. States are not required to convince courts of the

correctness of their legislative judgments. Clover Leaf, 449

U.S. at 464. Rather, those challenging the legislative judg-

ment must convince the court that the government deci-

sionmaker could not reasonably conceive the legislative

facts on which the judgment is based are true. Id.; Vance v.

Bradley, 440 U.S. 93, 111 (1979). See also Day-Brite Lighting,

Inc. v. Missouri, 342 U.S. 421, 425 (1952); Henderson Co. v.

Thompson, 300 U.S. 258, 264-265 (1937). In this case, the

Court of Appeals second-guessed the judgment of the

Wisconsin legislature and the district court without giv-

ing proper deference and consideration to these princi-

ples.

States retain broad authority under their general

police powers to regulate matters of legitimate local con-

cern even though interstate commerce is affected. Maine

v. Taylor, 477 U.S. 131, 138 (1986). See Clover Leaf, 449 U.S.

at 463-469, 473. The power of states to shelter their people

from menaces to health or safety, even when those dan-

gers emanate from interstate commerce, is deeply rooted

in both history and law. H.P. Hood, 336 U.S. at 533.

Although this Court consistently has rebuffed states’

attempts to advance their own commercial interests by

curtailing the movement of articles of commerce, this

Court generally has supported states’ rights to impose

even burdensome regulations in the interest of local

health and safety. Id. at 533-35.

Congress recognizes that states bear the primary

responsibility for waste control and resource recovery:

The Congress finds with respect to solid waste -

(4) that while the collection and disposal

of solid wastes should continue to be primarily

the function of State, regional, and local agen-

cies, the problems of waste disposal as set forth

above have become a matter national in scope

and in concern and necessitate Federal action

through financial and technical assistance and

leadership in the development, demonstration,

and application of new and improved methods

and processes to reduce the amount of waste

and unsalvageable materials and to provide for

~

proper and economical solid waste disposal

practices.

42 U.S.C. § 6901(a)(4).

Further, Congress determined that improper manage-

ment and disposal of solid and hazardous waste is a

threat to human health and the environment. 42 U.S.C.

§ 6901(b)(2). Congress identified a specific need to recycle

used oil to conserve resources and protect public health.

42 U.S.C. § 6901a. Congress also established the objec-

tives of assisting the states to develop resource recovery

programs and to minimize generation and disposal of

hazardous waste. 42 U.S.C. § 6901(a)(1), (6), (7), & (11).

The Environmental Protection Agency defines

resource recovery as a key element in achieving environ-

mental goals by reducing or eliminating sources of con-

tamination. 57 Fed. Reg. 37,194 at 37,195 (1992) (codified

at 40 CFR Part 148 et seq.). At certain levels the toxic

constituents of certain recyclables become regulated as

hazardous waste under the Resource Conservation and

Recovery Act (RCRA) through individual hazardous

waste programs as delegated to the states. 42 U.S.C.

§§ 6901-6992K. Even below these levels, many states reg-

ulate accumulations of these constituents in the environ-

ment through disposal or incineration because such

accumulations have adverse impacts.!

! Data for table prepared by North Dakota State Health

Department.

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This Court has recognized states’ abilities to consider

individual constituents of waste. In Fort Gratiot, 504 U.S.

at 366, the Court noted that its holding would have been

different if imported waste raised health or other con-

cerns not presented by the receiving state’s waste. States

have attempted to define whether imported waste raises

health or other concerns not presented by their own

waste. North Dakota, for example, requires waste genera-

tors who store or dispose of such waste in North Dakota

to effectively characterize their waste. N.D.C.C.

§ 23-29-07.8. This characterization requirement is sub-

stantially less than the characterization requirements for

in-state waste. N.D. Admin. Code §§ 33-20-01.1-03, 04, 06,

07, 08, 09, 11; 33-20-03.1-02(6)(b) & (g) and (7)(b);

33-20-04.1-03(1)(a) and (1)(h). The decision of the Court of

Appeals, if allowed to stand, will prevent statutes like

North Dakota’s waste characterization law from having

any impact on interstate commerce. PETITIONER’S

APPENDIX, pp. 11-23. Yet, if the waste is not charac-

terized, there is no way of determining whether it raises

health or other concerns not presented by the receiving

state’s waste. This is but one example of the Catch-22

position in which states are placed under the Court of

Appeals’ decision.

In its brief before the Court of Appeals, the National

Solid Waste Management Association (NSWMA) indi-

cated Wisconsin could accomplish its purposes through

the alternative method of requiring out-of-state waste

generators to follow the Wisconsin recycling program.

NSWMA said the state could demand production of rele-

vant records and inspect out-of-state generators to verify

10

compliance. Under NSWMA’s alternative regulation, Wis-

consin could even recover additional costs for its inspec-

tion and monitoring program. NSWMA’s Appellant Brief

before the Seventh Circuit Court of Appeals, p. 34. Yet,

even NSWMA’s alternative method cannot be imple-

mented without having some “practical impact” on inter-

state commerce.

To protect surface water, ground water, air quality,

fish and wildlife, soil resources, nonrenewable resources,

and the health and safety of their citizens, states must be

able to exercise their police powers effectively to provide

traditional local government services. The Court of

Appeal’s holding prevents states from doing so whenever

a state statute has a “practical impact” on “economic

activity completely outside the State.” PETITIONER’S

APPENDIX, p. 11. As such, it is in direct conflict with this

Court’s previous decisions, the will of Congress, the

Environmental Protection Agency, and state laws imple-

menting effective solid waste management programs.

b. CONTRARY TO THE DECISIONS OF THIS

COURT, THE COURT OF APPEALS CON-

CLUDED THAT ANY “PRACTICAL IMPACT”

ON “ECONOMIC ACTIVITY COMPLETELY

OUTSIDE THE STATE” VIOLATES THE DOR-

MANT COMMERCE CLAUSE PER SE.

Previous decisions of this Court that invalidated state

laws because of their extraterritorial effect have all

involved discriminatory economic regulations of inte-

grated interstate markets that either directly regulated

commerce beyond that state’s boundaries or had the

practical effect of regulating commerce beyond that

11

state’s boundaries. See Healy v. Beer Institute, 491 U.S. 324

(1989) (regulation of out-of-state wholesale liquor prices

in interstate commerce); Edgar v. MITE Corp., 457 U.S. 624

(1982) (regulation of out-of-state securities transactions in

interstate commerce); Baldwin, 294 U.S. at 522-24 (regula-

tion of out-of-state milk prices in interstate commerce);

Public Utilities Comm'n of Rhode Island v. Attleboro Steam &

Elec. Co., 273 U.S. 83 (1927) (regulation of out-of-state

wholesale electricity prices in interstate commerce); Mis-

souri ex rel. Barrett v. Kansas Nat. Gas Co., 265 U.S. 298

(1924) (regulation of out-of-state wholesale natural gas

prices).

However, “[nJot every exercise of state power with

some impact on interstate commerce is invalid.” Edgar,

457 U.S. at 640 (citing Pike v. Bruce Church, Inc., 397 U.S.

137, 142 (1970), and Huron Portland Cement, 362 U.S. at

443). This Court consistently protects the rights of states

to enact and enforce evenhanded non-economic regula-

tions that effectuate a legitimate local public interest and

only incidentally affect interstate commerce unless the

burden imposed on such commerce is clearly excessive in

relation to the putative local benefits. Id.; Clover Leaf, 449

U.S. at 470-75. This Court strikes down Congressional

acts which invade these areas of legitimate local control if

the law does not involve matters which substantially

affect interstate commerce, or if it requires states to regu-

late matters of national concern which Congress could

regulate directly. Lopez, 115 S. Ct. at 1626-30 (involving a

criminal law that did not substantially affect interstate

commerce); New York v. U.S., 505 U.S. 144, 178 (1992)

(holding the Constitution does not give Congress author-

ity to require states to regulate).

12

Further, even when a state law discriminates against

interstate commerce, the law is still valid if it serves a

legitimate local purpose that cannot be served as well by

available nondiscriminatory means. Maine, 477 U.S. at

140; Dean Milk Co. v. Madison, 340 U.S. 349, 354 (1951). See

also Oregon Waste Systems v. Department of Env. Quality,

114 S. Ct. 1345, 1351 (1994); Chemical Waste Management,

Inc. v. Hunt, 504 U.S. 334, 348 (1992); Fort Gratiot, 504 U.S.

at 366.

In this case, the Court of Appeals jumped directly

to analysis of whether the Wisconsin law had practical

impact on economic activity completely outside the state

under the Healy line of cases without first determining

whether the Wisconsin law is an evenhanded non-

economic law which only incidentally affects interstate

commerce. PETITIONER’S APPENDIX, p. 11. This turns

dormant Commerce Clause law on its head. The first step

in analyzing any law subject to judicial scrutiny under

the dormant Commerce Clause is to determine whether it

regulates “evenhandedly” with only “incidental” effects

on interstate commerce, or whether it “discriminates”

against interstate commerce. Oregon Waste, 114 S. Ct. at

1350. Philadelphia makes clear that the balancing test from

Pike is to be used when non-discriminatory legislative

objectives “are credibly advanced and there is no patent

discrimination against interstate trade.” 437 U.S. at 624. It

is the Court of Appeals’ upside-down analysis that causes

the amici states to ask this Court to grant the Petition for

Writ of Certiorari. Contrary to the applicable decisions of

this Court, the Court of Appeals’ analysis leads to the

13

conclusion that any “practical impact” on economic activ-

ity outside the state violates the dormant Commerce

Clause per se.

The district court, on the other hand, began its anal-

ysis where Oregon Waste requires it to - by determining

whether the statute is evenhanded or discriminatory.

PETITIONER’S APPEN’ IX, p. 30. The district court

determined that most of the Wisconsin recycling law is

not discriminatory, id. at 30-37, and invalidated those

portions of the law that were discriminatory (because

they treated out-of-state municipalities different than in-

state municipalities), id. at 37-39. The district court then

proceeded to make many specific findings of fact in rela-

tion to the portion of Wisconsin’s recycling law that is

evenhanded. Id. at 43-47.

The amici states’ critical concern is the Court of

Appeals’ failure to distinguish between discriminatory

economic regulations that result in economic protection-

ism, on the one hand, and evenhanded non-economic

regulations that protect health, safety, the environment,

and other legitimate local public interests, on the other.

See, e.g., Fort Gratiot, 504 U.S. at 365-66. The amici states

respectfully ask this Court to grant the Petition because

the Court of Appeals’ decision conflicts with the deci-

sions of this Court by making any impact on interstate

commerce a per se violation of the dormant Commerce

Clause.

14

c. THE COURT OF APPEALS’ DECISION NULLI-

FIES STATE REGULATION BASED ON THE

PRECEPTS OF FEDERALISM.

Federalism allows states to develop effective regula-

tions that address legitimate local public interests. Sea-

coast Products, 431 U.S. at 266. This is particularly true

when the local need involves an area of historical state

regulation without federal preemption. Id.

This Court has recognized consistently that the dor-

mant Commerce Clause, like the Supremacy Clause, gives

increased deference to state regulatory powers involving

protection of health and safety, natural resources, the

environment, and other areas traditionally regulated by

the states. See, e.g., CTS Corp. v. Dynamics Corp. of America,

481 U.S. 69, 86, 87-94 (1987). When Congress regulates in

an area that is historically within the states’ police

powers, the party arguing preemption must overcome the

strong presumption that Congress does not intend to

displace state law. Pacific Gas & Elec. v. State Energy

Resources Comm’n, 461 U.S. 190, 206 (1983); Maryland v.

Louisiana, 451 U.S. 725, 746 (1981); Jones v. Rath Packing

Co., 430 U.S. 519, 525 (1977); Rice v. Sante Fe Elevator Corp.,

331 U.S. 218, 230 (1947). No less deference should be paid

to police powers historically exercised by the states when

Congress has not acted.

Health and safety regulations carry a strong pre-

sumption of validity when challenged in court. Brother-

hood of Locomotive Firemen and Enginemen v. Chicago, R. I.

& P. R. Co., 393 U.S. 129, 138-39, 142 (1968); Bibb v. Navajo

Freight Lines, Inc., 359 U.S. 520, 524 (1959). If there are

alternative ways of solving a problem, this Court does

15

not determine which of those ways is best suited to

achieving a valid state objective. Brotherhood, 393 U.S. at

138-139; Bibb, 359 U.S. at 524. Policy decisions are for

state legislatures to make absent federal entry into the

field. Brotherhood, 393 U.S. at 138-139; Bibb, 359 U.S. at

524.

This is particularly true when the regulation must be

innovative to address distinct local concerns. Reeves, Inc.

v. Stake, 447 U.S. 429, 437 (1980). States must be allowed

to structure relations between their citizens and fashion

effective and creative programs to solve local problems.

Id. Because of a healthy regard for federalism and good

government, this Court has been reluctant to step into

areas historically subject to state police powers. Id.

“To stay experimentation in things social and

economic is a grave responsibility. Denial of the

right to experiment may be fraught with serious

consequences to the Nation. It is one of the

happy incidents of the federal system that a

single courageous State may, if its citizens

choose, serve as a laboratory; and try novel

social and economic experiments without risk to

the rest of the country.” New State Ice Co. v.

Liebmann, 285 U.S. 262, 311, 52 S. Ct. 371, 386, 76

L.Ed. 747 (1932) (Brandeis, J., dissenting).

Reeves, 447 U.S. at 437.

This Court recognizes that the Framers of the Consti-

tution never intended to cut the states off from legislating

on subjects relating to the health, life, and safety of their

citizens, even though the legislation might indirectly

affect commerce. Huron Portland Cement, 362 US. at

442-44. Legislation may affect commerce and persons

iia

16

engaged in commerce without constituting a regulation of

\ commerce within the meaning of the Constitution. Id.

(citing Collins v. American Buslines, Inc., 350 U.S. 528 (1956)

(state worker’s compensation act applies to an employee

killed in interstate commerce where federal government

had not occupied field); Boston & M.R.R. v. Armburg, 285

U.S. 234 (1932) (state worker’s compensation act applica-

ble to employees engaged exclusively in intrastate com-

merce); Simpson v. Shepard, 230 U.S. 352 (1913)

(enforcement of intrastate rates on interstate commerce);

Louisville & Nashville R. Co. v. Kentucky, 183 U.S. 503

(1902) (conviction of railroad company for charging

unlawful rates); Austin v. Tennessee, 179 U.S. 343 (1900)

(criminal conviction for sale of tobacco); Sherlock v. Alling,

93 U.S. 99 (1876) (liability in tort absent Congressional

action)).

ncaa mt ee

This Court recently expressed its strong concern to

preserve the “distinction between what is truly national

and what is truly local.” Lopez, 115 S. Ct. at 1634. These

distinctions preserve the balance between federal, state,

and local authority intended under our “federalist” sys-

tem. Younger v. Harris, 401 U.S. 37, 44-45 (1971); Lopez,

115 S. Ct. at 1634-42 (Kennedy, J., concurring). The impor-

tance of clarifying federalism’s role in states’ resolution

of local problems is an additional reason to grant Wiscon-

sin’s Petition for Writ of Certiorari.

However, the Court of Appeals’ analysis erroneously

equates a “practical impact” on “economic activity com-

pletely outside the state” with a per se violation of the

dormant Commerce Clause under the Healy line of cases.

The Court of Appeals’ decision invites dormant Com-

merce Clause challenges to any state law which has a

i 17

“practical impact,” no matter how small, on interstate

commerce. This threatens the validity of any state law

that impacts interstate commerce - from state vehicle

emission standards enacted under the Clean Air Act, to

inspection laws which protect state resources from pests

and disease; from recycling laws such as bottle bills

which further federally enacted goals such as those set

forth in RCRA and the federal Pollution Prevention Act

of 1990, to waste characterization statutes that follow the

principles outlined in Fort Gratiot.

Waste control and resource recovery are among those

services that are “local” by their very nature - as are

police and fire protection, roads, lighting, traffic control,

water, and sewage. Compare Garcia, 469 U.S. at 578 (Pow-

ell, J., dissenting). “Not only are these activities remote

from any normal concept of interstate commerce, they are

also activities that epitomize the concerns of local, demo-

cratic self-government.” Id. at 575. It is functions such as

these for which local governments were created and

which local governments perform best. Id. at 576. State

and local officials must be intimately familiar with these

services and sensitive to their quality as well as cost. Id.

at 578. If state and local governments are not allowed to

develop innovative and cost effective waste control and

resource recovery laws, waste control and resource recov-

ery simply will not happen. See district court’s findings of

fact, PETITIONER’S APPENDIX, p. 46 (determining that

“inspection and reporting” were “likely to be ineffective”

and impose “a substantially greater cost upon Wisconsin

and its landfill consumers than the existing recycling

program requirements”).

18

The amici states respectfully request that this Court

grant Wisconsin’s Petition for Writ of Certiorari because

the Court of Appeals’ decision conflicts with the applica-

ble decisions of this Court discussed above and raises

important questions of federal law that can only be

resolved by this Court.

2. THIS COURT MUST SETTLE THE CONFLICT

BETWEEN CIRCUITS CONCERNING WHETHER

AN EVENHANDED REGULATION WHICH HAS

AN EXTRATERRITORIAL EFFECT VIOLATES THE

DORMANT COMMERCE CLAUSE PER SE.

In Cotto Waxo Co. v. Williams, 46 F.3d 790 (8th Cir.

1995), the Eighth Circuit Court of Appeals determined

that an evenhanded non-economic regulation which had

only an incidental effect on interstate commerce did not

violate the dormant Commerce Clause. In this case, the

district court determined that most of Wisconsin’s recyc-

ling statute was an evenhanded regulation that only inci-

dentally affected interstate commerce, striking those

portions of the law that were discriminatory. PETI-

TIONER’S APPENDIX, pp. 30-44. Without overturning

the legal and factual conclusions of the district court, the

Court of Appeals determined that Wisconsin’s recycling

statute violated the dormant Commerce Clause per se

because it has a “practical impact” on interstate com-

merce. Id. at 11-23.

The amici states respectfully request that this Court

resolve this conflict between circuits concerning whether

19

an evenhanded regulation which has an extraterritorial

effect violates the dormant Commerce Clause per se.

¢

CONCLUSION

For the reasons stated above, the amici states respect-

fully request that this Court grant Wisconsin’s Petition

for Writ of Certiorari.

March 1, 1996.

Respectfully submitted,

State of North Dakota

Heir Herrkamp

Attorney General

WituiamM Dev_more*

Assistant Attorney General

Office of Attorney General

State Office Building

900 East Boulevard

Bismarck, ND 58505-0041

Telephone (701) 328-5151

Facsimile (701) 328-5200

*Counsel of Record