As a throw-away society with a penchant for consumption, we generate approximately 195 million tons of solid waste a year.1 The management of these wastes is the responsibility of local governments in accordance with a hierarchical system developed by the U.S. Environmental Protection Agency and adopted by most states2At the top of the hierarchy is waste reduction at its source or, as some environmentalists prefer to call it, pollution prevention. Next in the hierarchy is recycling, recovery and reuse, followed by conversion of waste to energy through combustion or incineration. The use of landfill is the least preferred, due in part to the leachate contamination of ground and surface water, pollution of the air from the stinking odor of decomposing garbage, and explosion of methane gas. Moreover, many of the older landfills are closing down while newer landfills are prohibitively expensive to operate due to the requirements of Sub-Title D of the Resource Conversion and Recovery Act.3 No matter how we manage waste, it would be impossible to reduce it to a zero level of pollution. For as long as we continue to live in a culture of consumption, the garbage problem will reach crisis proportion and will pose a challenge to our public policy-making system, our institutions of politics, and our democratic art of governance.4 How successful are we going to be in coping with that crisis will be determined by three propositions, which I will argue in this paper. First, if state and local governments will continue to play a crucial role in the implementation of the hierarchy system of waste management, Congress must take waste out of the stream of interstate commerce and let it flow into the regulatory system of the states and municipalities. In the absence of congressional legislation expressly authorizing state governments to pass legislation regulating the transportation of out-of-state wastes and empowering local governments to control the flow of wastes to its designated facilities, the courts will nullify state and local government efforts to protect their environments under the dormant commerce clause.
Second, community resistance to siting locally unwanted facilities, which are supposed to reduce the volume of waste or convert them into energy, is not a bankrupt philosophy but a problem in democratic governance. If public hearings, environmental dispute resolution, and compensatory financial incentives fail to help in reaching a decision and in overcoming the siting gridlock, why not let the citizens use direct democracy in making the final decision? Third, the disproportionate concentration of locally unwanted facilities in poor neighborhoods can come to an end not through litigation, legislation or the free market system, but through pollution prevention. Fourth, the high-level nuclear waste disposal program could be more successfully implemented if the relationship between the federal government and state government is less than adversarial. Moreover, the activities of bureaucratic agencies involved in the site selection process for low-level radioactive wastes can contribute to the program success if they work together instead of operating independently from each other. If the states are convinced of the fairness and equity of the site selection process and if the agencies work as a team in finding a suitable site, a delay in the decision process can be avoided.
The Dormant Clause and its Effect on State and Local Waste Management
When the capacity of a state to generate waste is greater than its ability to dispose it, waste will be difficult to manage. The shortage of landfills will exacerbate the disposal problem. Some waste managers have devised ingenious ways of coping with the problem. Others have found piles and piles of garbage to be a lucrative enterprise because there is a mine of gold in it.5 One of these entrepreneurs is the trucking industry, carrying commercial goods from the midwest to the east. …