THE Supreme Court has garbage problems.
Today the justices of the nation's highest court are hearing
arguments in one of several important trash-disposal cases they
will decide this term.
The court must decide whether the Constitution's "commerce
clause" limits the power of states and cities to regulate the
treatment and disposal of trash that crosses state borders. The
commerce clause authorizes Congress to regulate interstate
commerce, and it has been interpreted by the Supreme Court to
prohibit state and local governments from imposing "undue
burdens" on the interstate movement of goods and services.
One undue burden on interstate trade that the court has
traditionally banned is discriminatory treatment between in-state
and out-of-state goods or services.
In the case before the jurists today, Oregon levied a higher
disposal fee on garbage originating out of state than on trash
generated within its borders. The state says the fee covers only
its costs, and that, because in-state producers of trash pay part
of those costs through taxes and other fees, the higher
out-of-state disposal fee is not discriminatory.
But Oregon faces an uphill battle to prevail, some legal experts
say. Last term the court struck down a similar fee imposed by
Alabama on out-of-state toxic chemical wastes. Lawyers for Oregon
contend that its fee is more closely calibrated to actual disposal
costs than the Alabama levy was, but some observers say the record
doesn't support that assertion.
"In our view, Oregon hasn't proved that the fee differential is
merely compensatory," says Bruce Parker, general counsel of the
National Solid Wastes Management Association (NSWMA), a trade group
in Washington that opposes the statute.
"The court could reject Oregon's argument on the ground that it
would allow states to make out-of-staters pay more for other
services, like the use of roads," says Charlotte Crane, a
professor at Northwestern University Law School in Chicago.
A more controversial and intensely watched garbage-disposal case
was argued before the Supreme Court last month. At issue is the
power of cities to enact "flow-control" ordinances requiring that
all trash be processed at a designated municipal facility. Mr.
Parker of the NSWMA says the flow-control case "deals with what's
becoming a systemic feature of the way in which states and cities
handle trash. …