Americans generate more domestic waste than any other country in the world. In 1996, for example, we generated an estimated 200,000,000 tons of domestic waste, the equivalent of 875 kilograms per person. That same year, Japan generated an estimated 40,225,000 tons of domestic waste, averaging 288 kilograms per person, while neighboring Canada generated an estimated 12,600,000 tons of domestic waste, averaging 525 kilograms per person. This excessive generation of waste has yielded immense challenges for our state and local governments that must manage waste not only within their own jurisdictions, but also waste from outside their jurisdictions. Some state and local governments seek out waste from outside their state in order to generate tipping, or disposal, fees while other governments shun such waste, in fear of becoming the dumping ground of the nation.
While state and local governments have been ordered by federal, state, and local laws to develop and implement policies aimed at the reduction and proper disposal of waste, current policy regarding the interstate transport of waste limits their ability to do so. Policy in this area has been shaped by the courts and their interpretation of the Commerce Clause of the U.S. Constitution. The Commerce Clause states that "The Congress shall have the power to regulate Commerce among foreign Nations, and among the several states, and with the Indian Tribes" (U.S. Constitution Article I, Section 8, Paragraph 3). In a series of five key cases, the Supreme Court has tied the hands of state and local governments, severely limiting their options in regulating waste. This column highlights these cases as well as the implications of these judicial decisions for public administrators.
Back to the Future
Current law concerning out-of-state waste stems largely from the 1978 U.S. Supreme Court case, City of Philadelphia v. New Jersey, 437 U.S. 617 (1978), where the Supreme court overturned a New Jersey law that limited the transportation of waste into that state. The Court maintained that the New Jersey law fell "squarely within the area that the Commerce Clause puts off limits to state regulation" (City of Philadelphia v. New Jersey, 628). Justice Stewart's opinion hinged upon an argument for the "dormant" commerce clause. The dormant commerce clause, a judicially created doctrine, has been utilized by the courts to strike down state legislation in conflict with national commerce policies, and is often evoked by the courts in instances when states unduly infringe upon interstate commerce.(1)
In City of Philadelphia v. New Jersey, there were two issues of contention: Whether the interstate movement of waste consists of "commerce" within the meaning of the Commerce Clause, and whether the New Jersey state law limiting interstate transport of waste is an economic protectionist measure or a law directed at legitimate local concerns that has only incidental effects on interstate commerce.
In response to the issue of whether the interstate movement of waste consists of commerce, the Supreme Court held that "all objects of interstate trade merit Commerce Clause protections; none is excluded" (City of Philadelphia v. New Jersey, 622). In a previous ruling on the case, the New Jersey Supreme Court found, in conjunction with several prior Supreme Court rulings, that states can prohibit the importation of some objects because they are not legitimate subjects of trade and commerce. However, in City of Philadelphia v. New Jersey, the Supreme Court found that the state court had misinterpreted previous case law: "In Bowman and similar cases, the Court held simply that because the articles' worth in interstate commerce was far outweighed by the dangers inhering in their very movement, States could prohibit their transportation across state lines. Hence, we reject the state court's suggestion that the banning of `valueless' out-of-state wastes by. …