OCTOBER TERM, 1993
Syllabus
C & A CARBONE, INC., ET AL. v. TOWN OF CLARKSTOWN, NEW
YORK
CERTIORARI TO THE APPELLATE DIVISION, SUPREME COURT OF NEW YORK,
SECOND JUDICIAL DEPARTMENT
No. 92-1402. Argued December 7, 1993-Decided May 16, 1994
Respondent town agreed to allow a private contractor to
construct within town limits a solid waste transfer station to
separate recyclable from nonrecyclable items and to operate the
facility for five years, at which time the town would buy it for
one dollar. To finance the transfer station's cost, the town
guaranteed a minimum waste flow to the facility, for which the
contractor could charge the hauler a tipping fee which exceeded the
disposal cost of unsorted solid waste on the private market. In
order to meet the waste flow guarantee, the town adopted a flow
control ordinance, requiring all nonhazardous solid waste within
the town to be deposited at the transfer station. While recyclers
like petitioners (collectively Carbone) may receive solid waste at
their own sorting facilities, the ordinance requires them to bring
nonrecyclable residue to the transfer station, thus forbidding them
to ship such waste themselves and requiring them to pay the tipping
fee on trash that has already been sorted. After discovering that
Carbone was shipping nonrecyclable waste to out-of-state
destinations, the town filed suit in state court, seeking an
injunction requiring that this residue be shipped to the transfer
station. The court granted summary judgment to the town, finding
the ordinance constitutional, and the Appellate Division
affirmed.
Held: The flow control ordinance violates the Commerce
Clause.
Pp. 389-395.
(a) The ordinance regulates interstate commerce. While its
immediate effect is to direct local transport of solid waste to a
designated site within the local jurisdiction, its economic effects
are interstate in reach. By requiring Carbone to send the
nonrecyclable portion of waste it receives from out of State to the
transfer station at an additional cost, the ordinance drives up the
cost for out-of-state interests to dispose of their solid waste. It
also deprives out-of-state businesses of access to the local
market, by preventing everyone except the favored local operator
from performing the initial processing step. P. 389.
(b) The ordinance discriminates against interstate commerce, and
thus is invalid. See Philadelphia v. New Jersey,
437 U. S. 617, 624.
Although the ordinance erects no barrier to the import or export of
any
384
Syllabus
solid waste, the article of commerce here is not so much the
waste itself, but rather the service of processing and disposing of
it. With respect to this stream of commerce, the ordinance
discriminates, for it allows only the favored operator to process
waste that is within the town's limits. It is no less
discriminatory because in-state or in-town processors are also
covered by the prohibition. Cf., e. g., Dean Milk Co. v. Madison,
340 U. S. 349.
Favoring a single local proprietor makes the ordinance's
protectionist effect even more acute, for it squelches competition
in the waste-processing service altogether, leaving no room for
outside investment. Pp. 389-392.
(c) The town does not lack other means to advance a legitimate
local interest. It could address alleged health and safety problems
through nondiscriminatory alternatives, such as uniform safety
regulations that would ensure that competitors do not underprice
the market by cutting corners on environmental safety. Justifying
the ordinance as a way to steer solid waste away from out-of-town
disposal sites that the town might deem harmful to the environment
would extend its police power beyond its jurisdictional boundaries.
Moreover, the ordinance's revenue generating purpose by itself is
not a local interest that can justify discrimination against
interstate commerce. If special financing is needed to ensure the
transfer station's long-term survival, the town may subsidize the
facility through general taxes or municipal bonds, but it may not
employ discriminatory regulation to give the project an advantage
over rival out-of-state businesses. Pp. 392-395.
182 App. Div. 2d 213, 587 N. Y. S. 2d 681, reversed and
remanded.
KENNEDY, J., delivered the opinion of the Court, in which
STEVENS, SCALIA, THOMAS, and GINSBURG, JJ., joined. O'CONNOR, J.,
filed an opinion concurring in the judgment, post, p. 401. SOUTER,
J., filed a dissenting opinion, in which REHNQUIST, C. J., and
BLACKMUN, J., joined, post, p. 410.
Betty Jo Christian argued the cause for petitioners.
With her on the briefs were Paul
J. Ondrasik, Jr., David
Silverman, Kenneth Resnik, and Charles G. Cole.
William C. Brashares argued the cause for respondent.
With him on the brief were Murray N. Jacobson and Richard A.
Glickel.*
*Briefs of amici curiae urging reversal were filed for
Incorporated Villages of Westbury, Mineola, and New Hyde Park et
al. by Lawrence W Boes, Jerome F. Matedero, John M. Spellman, and
Donna M. C. Giliberto;
385
JUSTICE KENNEDY delivered the opinion of the Court.
As solid waste output continues apace and landfill capacity
becomes more costly and scarce, state and local governments
for the Chemical Manufacturers Association et al. by Theodore L.
Garrett; and for the National Solid Wastes Management Association
by Bruce L. Thall and Bruce
J. Parker.
Briefs of amici curiae urging affirmance were filed for the
State of New Jersey by Robert
J. Del Tufo, Attorney General,
Mary C. Jacobson, Assistant Attorney General, and Carla Vivian
Bello, Senior Deputy Attorney General; for the State of Ohio et al.
by Lee Fisher, Attorney General, and Susan E. Ashbrook and Bryan F.
Zima, Assistant Attorneys General; and by the Attorneys General and
other officials for their respective jurisdictions as follows:
Charles E. Cole, Attorney General of Alaska, Grant Woods, Attorney
General of Arizona, Richard Blumenthal, Attorney General of
Connecticut, Charles M. Oberly III, Attorney General of Delaware,
Robert A. Butterworth, Attorney General of Florida, Robert A.
Marks, Attorney General of Hawaii, Roland W Burris, Attorney
General of Illinois, Pamela Carter, Attorney General of Indiana,
Bonnie
J. Campbell, Attorney General of Iowa, Michael E.
Carpenter, Attorney General of Maine, Scott Harshbarger, Attorney
General of Massachusetts, Frank
J. Kelley, Attorney General
of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota,
and Beverly Connerton and Stephen Shakman, Assistant Attorneys
General, Joseph P. Mazurek, Attorney General of Montana, Michael F.
Easley, Attorney General of North Carolina, Theodore R. Kulongoski,
Attorney General of Oregon, Ernest D. Preate, Jr., Attorney General
of Pennsylvania, Pedro R. Pierluisi, Attorney General of Puerto
Rico, T. Travis Medlock, Attorney General of South Carolina,
Stephen D. Rosenthal, Attorney General of Virginia, and James E.
Doyle, Attorney General of Wisconsin; for the State of New York et
al. by Robert Abrams, Attorney General, Jerry Boone, Solicitor
General, Andrea Green, Deputy Solicitor General, John
J.
Sipos and Gordon
J. Johnson, Assistant Attorneys General, O.
Peter Sherwood, Leonard
J. Koerner, and Martin Gold; for
Prince George's County, Maryland, et al. by Lewis A. Noonberg,
Charles W Thompson, Jr., and Michael P. Whalen; for Rockland
County, New York, by Ilan S. Schoenberger, for the County of San
Diego, California, by Lloyd M. Harmon, Jr., Diane Bardsley, Scott
H. Peters, W Cullen MacDonald, Eric S. Petersen, and Jerome A.
Barron; for the City of Indianapolis, Indiana, et al. by Scott M.
DuBoff, Pamela K. Akin, Felshaw King, Mary Anne Wood, Michael F. X.
Gillin, John D. Pirich, David P. Bobzien, Robert C. Cannon, and
Patrick T. Boulden; for the City of Springfield, Missouri, by
Stuart H. Newberger, Jeffrey H. How-
386
are expending significant resources to develop trash control
systems that are efficient, lawful, and protective of the
environment. The difficulty of their task is evident from the
number of recent cases that we have heard involving waste transfer
and treatment. See Philadelphia v. New Jersey,
437 U. S. 617 (1978);
Chemical Waste Management, Inc. v. Hunt,
504 U. S. 334 (1992);
Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural
Resources,
504 U. S.
353 (1992); Oregon Waste Systems, Inc. v. Department of
Environmental Quality of Ore., ante, p. 93. The case decided today,
while perhaps a small new chapter in that course of decisions,
rests nevertheless upon well-settled principles of our Commerce
Clause jurisprudence.
We consider a so-called flow control ordinance, which requires
all solid waste to be processed at a designated transfer station
before leaving the municipality. The avowed purpose of the
ordinance is to retain the processing fees charged at the transfer
station to amortize the cost of the facility. Because it attains
this goal by depriving competitors, including out-of-state firms,
of access to a local market, we hold that the flow control
ordinance violates the Commerce Clause.
The town of Clarkstown, New York, lies in the lower Hudson River
Valley, just upstream from the Tappan Zee Bridge and by highway
minutes from New Jersey. Within the town limits are the village of
Nyack and the hamlet of West Nyack. In August 1989, Clarkstown
entered into a consent
ard, and Clifton S. Elgarten; for the Town of Smithtown, New
York, et al. by W Cullen MacDonald, Richard L. Sigal, Eric S.
Petersen, and Jon A. Gerber; for the Solid Waste Disposal Authority
of the city of Huntsville, Alabama, by Charles H. Younger; for the
Clarendon Foundation by Ronald D. Maines; for the National
Association of Bond Lawyers by C. Baird Brown, Robert B. McKinstry,
Jr., and Brendan K. Collins; for the National Association of
Counties et al. by Richard Ruda; for Ogden Projects, Inc., by
Robert C. Bernius and Jeffrey R. Horowitz; and for the Solid Waste
Association of North America et al. by Barry S. Shanoff, B. Richard
Marsh, and Robert D. Thorington.
387
decree with the New York State Department of Environmental
Conservation. The town agreed to close its landfill located on
Route 303 in West Nyack and build a new solid waste transfer
station on the same site. The station would receive bulk solid
waste and separate recyclable from nonrecyclable items. Recyclable
waste would be baled for shipment to a recycling facility;
nonrecyclable waste, to a suitable landfill or incinerator.
The cost of building the transfer station was estimated at $1.4
million. A local private contractor agreed to construct the
facility and operate it for five years, after which the town would
buy it for $1. During those five years, the town guaranteed a
minimum waste flow of 120,000 tons per year, for which the
contractor could charge the hauler a so-called tipping fee of $81
per ton. If the station received less than 120,000 tons in a year,
the town promised to make up the tipping fee deficit. The object of
this arrangement was to amortize the cost of the transfer station:
The town would finance its new facility with the income generated
by the tipping fees.
The problem, of course, was how to meet the yearly guarantee.
This difficulty was compounded by the fact that the tipping fee of
$81 per ton exceeded the disposal cost of unsorted solid waste on
the private market. The solution the town adopted was the flow
control ordinance here in question, Local Laws 1990, No.9 of the
Town of Clarkstown (full text in Appendix). The ordinance requires
all nonhazardous solid waste within the town to be deposited at the
Route 303 transfer station. Id., § 3.C (waste generated within the
town), § 5.A (waste generated outside and brought in).
Noncompliance is punishable by as much as a $1,000 fine and up to
15 days in jail. § 7.
The petitioners in this case are C & A Carbone, Inc., a
company engaged in the processing of solid waste, and various
related companies or persons, all of whom we designate Carbone.
Carbone operates a recycling center in Clarks-
388
town, where it receives bulk solid waste, sorts and bales it,
and then ships it to other processing facilities-much as occurs at
the town's new transfer station. While the flow control ordinance
permits recyclers like Carbone to continue receiving solid waste, §
3.C, it requires them to bring the nonrecyclable residue from that
waste to the Route 303 station. It thus forbids Carbone to ship the
nonrecyclable waste itself, and it requires Carbone to pay a
tipping fee on trash that Carbone has already sorted.
In March 1991, a tractor-trailer containing 23 bales of solid
waste struck an overpass on the Palisades Interstate Parkway. When
the police investigated the accident, they discovered the truck was
carrying household waste from Carbone's Clarkstown plant to an
Indiana landfill. The Clarkstown police put Carbone's plant under
surveillance and in the next few days seized six more
tractor-trailers leaving the facility. The trucks also contained
nonrecyclable waste, originating both within and without the town,
and destined for disposal sites in Illinois, Indiana, West
Virginia, and Florida.
The town of Clarkstown sued Carbone in New York Supreme Court,
Rockland County, seeking an injunction requiring Carbone to ship
all nonrecyclable waste to the Route 303 transfer station. Carbone
responded by suing in United States District Court to enjoin the
flow control ordinance. On July 11, the federal court granted
Carbone's injunction, finding a sufficient likelihood that the
ordinance violated the Commerce Clause of the United States
Constitution. C. & A. Carbone, Inc. v. Clarkstown, 770 F. Supp.
848 (SDNY 1991).
Four days later, the New York court granted summary judgment to
respondent. The court declared the flow control ordinance
constitutional and enjoined Carbone to comply with it. The federal
court then dissolved its injunction.
The Appellate Division affirmed. 182 App. Div. 2d 213, 587 N. Y.
S. 2d 681 (2d Dept. 1992). The court found that the
389
ordinance did not discriminate against interstate commerce
because it "applies evenhandedly to all solid waste processed
within the Town, regardless of point of origin." Id., at 222, 587
N. Y. S. 2d, at 686. The New York Court of Appeals denied Carbone's
motion for leave to appeal. 80 N. Y. 2d 760, 605 N. E. 2d 874
(1992). We granted certiorari, 508 U. S. 938 (1993), and now
reverse.
At the outset we confirm that the flow control ordinance does
regulate interstate commerce, despite the town's position to the
contrary. The town says that its ordinance reaches only waste
within its jurisdiction and is in practical effect a quarantine: It
prevents garbage from entering the stream of interstate commerce
until it is made safe. This reasoning is premised, however, on an
outdated and mistaken concept of what constitutes interstate
commerce.
While the immediate effect of the ordinance is to direct local
transport of solid waste to a designated site within the local
jurisdiction, its economic effects are interstate in reach. The
Carbone facility in Clarkstown receives and processes waste from
places other than Clarkstown, including from out of State. By
requiring Carbone to send the nonrecyclable portion of this waste
to the Route 303 transfer station at an additional cost, the flow
control ordinance drives up the cost for out-of-state interests to
dispose of their solid waste. Furthermore, even as to waste
originant in Clarkstown, the ordinance prevents everyone except the
favored local operator from performing the initial processing step.
The ordinance thus deprives out-of-state businesses of access to a
local market. These economic effects are more than enough to bring
the Clarkstown ordinance within the purview of the Commerce Clause.
It is well settled that actions are within the domain of the
Commerce Clause if they burden interstate commerce or impede its
free flow. NLRB v. Jones & Laughlin Steel Corp.,
301 U. S. 1, 31 (1937).
The real question is whether the flow control ordinance is valid
despite its undoubted effect on interstate commerce.
390
For this inquiry, our case law yields two lines of analysis:
first, whether the ordinance discriminates against interstate
commerce, Philadelphia, 437 U. S., at 624; and second, whether the
ordinance imposes a burden on interstate commerce that is "clearly
excessive in relation to the putative local benefits," Pike v.
Bruce Church, Inc.,
397 U. S. 137, 142
(1970). As we find that the ordinance discriminates against
interstate commerce, we need not resort to the Pike test.
The central rationale for the rule against discrimination is to
prohibit state or municipal laws whose object is local economic
protectionism, laws that would excite those jealousies and
retaliatory measures the Constitution was designed to prevent. See
The Federalist No. 22, pp. 143-145 (C. Rossiter ed. 1961) (A.
Hamilton); Madison, Vices of the Political System of the United
States, in 2 Writings of James Madison 362-363 (G. Hunt ed. 1901).
We have interpreted the Commerce Clause to invalidate local laws
that impose commercial barriers or discriminate against an article
of commerce by reason of its origin or destination out of State.
See, e.
g., Philadelphia, supra (striking down New Jersey
statute that prohibited the import of solid waste); Hughes v.
Oklahoma,
441 U. S.
322 (1979) (striking down Oklahoma law that prohibited the
export of natural minnows).
Clarkstown protests that its ordinance does not discriminate
because it does not differentiate solid waste on the basis of its
geographic origin. All solid waste, regardless of origin, must be
processed at the designated transfer station before it leaves the
town. Unlike the statute in Philadelphia, says the town, the
ordinance erects no barrier to the import or export of any solid
waste but requires only that the waste be channeled through the
designated facility.
Our initial discussion of the effects of the ordinance on
interstate commerce goes far toward refuting the town's contention
that there is no discrimination in its regulatory scheme. The
town's own arguments go the rest of the way. As the town itself
points out, what makes garbage a profit-
391
able business is not its own worth but the fact that its
possessor must pay to get rid of it. In other words, the article of
commerce is not so much the solid waste itself, but rather the
service of processing and disposing of it.
With respect to this stream of commerce, the flow control
ordinance discriminates, for it allows only the favored operator to
process waste that is within the limits of the town. The ordinance
is no less discriminatory because in-state or in-town processors
are also covered by the prohibition. In Dean Milk Co. v. Madison,
340 U. S. 349
(1951), we struck down a city ordinance that required all milk sold
in the city to be pasteurized within five miles of the city lines.
We found it "immaterial that Wisconsin milk from outside the
Madison area is subjected to the same proscription as that moving
in interstate commerce." Id., at 354, n. 4. Accord, Fort Gratiot
Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504
U. S., at 361 ("[O]ur prior cases teach that a State (or one of its
political subdivisions) may not avoid the strictures of the
Commerce Clause by curtailing the movement of articles of commerce
through subdivisions of the State, rather than through the State
itself").
In this light, the flow control ordinance is just one more
instance of local processing requirements that we long have held
invalid. See Minnesota v. Barber,
136 U. S. 313 (1890)
(striking down a Minnesota statute that required any meat sold
within the State, whether originating within or without the State,
to be examined by an inspector within the State); Foster-Fountain
Packing Co. v. Haydel,
278 U. S. 1 (1928)
(striking down a Louisiana statute that forbade shrimp to be
exported unless the heads and hulls had first been removed within
the State); Johnson v. Haydel,
278 U. S. 16 (1928)
(striking down analogous Louisiana statute for oysters); Toomer v.
Wits ell,
334 U. S.
385 (1948) (striking down South Carolina statute that required
shrimp fishermen to unload, pack, and stamp their catch before
shipping it to another State); Pike v. Bruce Church, Inc., supra
(striking down
392
Arizona statute that required all Arizona-grown cantaloupes to
be packaged within the State prior to export); SouthCentral Timber
Development, Inc. v. Wunnicke,
467 U. S. 82 (1984)
(striking down an Alaska regulation that required all Alaska timber
to be processed within the State prior to export). The essential
vice in laws of this sort is that they bar the import of the
processing service. Out-of-state meat inspectors, or shrimp
hullers, or milk pasteurizers, are deprived of access to local
demand for their services. Put another way, the offending local
laws hoard a local resourcebe it meat, shrimp, or milk-for the
benefit of local businesses that treat it.
The flow control ordinance has the same design and effect.
It hoards solid waste, and the demand to get rid of it, for the
benefit of the preferred processing facility. The only conceivable
distinction from the cases cited above is that the flow control
ordinance favors a single local proprietor. But this difference
just makes the protectionist effect of the ordinance more acute. In
Dean Milk, the local processing requirement at least permitted
pasteurizers within five miles of the city to compete. An
out-of-state pasteurizer who wanted access to that market might
have built a pasteurizing facility within the radius. The flow
control ordinance at issue here squelches competition in the
waste-processing service altogether, leaving no room for investment
from outside.
Discrimination against interstate commerce in favor of local
business or investment is per se invalid, save in a narrow class of
cases in which the municipality can demonstrate, under rigorous
scrutiny, that it has no other means to advance a legitimate local
interest. Maine v. Taylor,
477 U. S. 131 (1986)
(upholding Maine's ban on the import of baitfish because Maine had
no other way to prevent the spread of parasites and the
adulteration of its native fish species). A number of amici contend
that the flow control ordinance fits into this narrow class. They
suggest that as landfill space
393
diminishes and environmental cleanup costs escalate, measures
like flow control become necessary to ensure the safe handling and
proper treatment of solid waste.
The teaching of our cases is that these arguments must be
rejected absent the clearest showing that the unobstructed flow of
interstate commerce itself is unable to solve the local problem.
The Commerce Clause presumes a national market free from local
legislation that discriminates in favor of local interests. Here
Clarkstown has any number of nondiscriminatory alternatives for
addressing the health and environmental problems alleged to justify
the ordinance in question. The most obvious would be uniform safety
regulations enacted without the object to discriminate. These
regulations would ensure that competitors like Carbone do not
underprice the market by cutting corners on environmental
safety.
Nor may Clarkstown justify the flow control ordinance as a way
to steer solid waste away from out-of-town disposal sites that it
might deem harmful to the environment. To do so would extend the
town's police power beyond its jurisdictional bounds. States and
localities may not attach restrictions to exports or imports in
order to control commerce in other States. Baldwin v. G. A. F.
Seelig, Inc.,
294 U.
S. 511 (1935) (striking down New York law that prohibited the
sale of milk unless the price paid to the original milk producer
equaled the minimum required by New York).
The flow control ordinance does serve a central purpose that a
nonprotectionist regulation would not: It ensures that the
town-sponsored facility will be profitable, so that the local
contractor can build it and Clarkstown can buy it back at nominal
cost in five years. In other words, as the most candid of amici and
even Clarkstown admit, the flow control ordinance is a financing
measure. By itself, of course, revenue generation is not a local
interest that can justify discrimination against interstate
commerce. Otherwise States could impose discriminatory taxes
against solid waste origi-
394
nating outside the State. See Chemical Waste Management, Inc. v.
Hunt,
504 U. S.
334 (1992) (striking down Alabama statute that imposed
additional fee on all hazardous waste generated outside the State
and disposed of within the State); Oregon Waste Systems, Inc. v.
Department of Environmental Quality of Ore., ante, p. 93 (striking
down Oregon statute that imposed additional fee on solid waste
generated outside the State and disposed of within the State).
Clarkstown maintains that special financing is necessary to
ensure the long-term survival of the designated facility. If so,
the town may subsidize the facility through general taxes or
municipal bonds. New Energy Co. of Ind. v. Limbach,
486 U. S. 269, 278
(1988). But having elected to use the open market to earn revenues
for its project, the town may not employ discriminatory regulation
to give that project an advantage over rival businesses from out of
State.
Though the Clarkstown ordinance may not in explicit terms seek
to regulate interstate commerce, it does so nonetheless by its
practical effect and design. In this respect the ordinance is not
far different from the state law this Court found invalid in Buck
v. Kuykendall,
267 U.
S. 307 (1925). That statute prohibited common carriers from
using state highways over certain routes without a certificate of
public convenience. Writing for the Court, Justice Brandeis said of
the law: "Its primary purpose is not regulation with a view to
safety or to conservation of the highways, but the prohibition of
competition. It determines not the manner of use, but the persons
by whom the highways may be used. It prohibits such use to some
persons while permitting it to others for the same purpose and in
the same manner." Id., at 315-316.
State and local governments may not use their regulatory power
to favor local enterprise by prohibiting patronage of out-of-state
competitors or their facilities. We reverse the
395
judgment and remand the case for proceedings not inconsistent
with this decision.
It is so ordered.
APPENDIX TO OPINION OF THE COURT TOWN OF CLARKSTOWN
Local Law No.9 of the year 1990
A local law entitled, "SOLID WASTE TRANSPORTATION AND
DISPOSAL."
Be it enacted by the TOWN BOARD of the Town of CLARKSTOWN as
follows:
Section 1. Definitions
Unless otherwise stated expressly, the following words and
expressions, where used in this chapter, shall have the meanings
ascribed to them by this section:
ACCEPTABLE WASTE-All residential, commercial and industrial
solid waste as defined in New York State Law, and Regulations,
including Construction and Demolition Debris. Acceptable Waste
shall not include Hazardous Waste, Pathological Waste or
sludge.
CONSTRUCTION AND DEMOLITION DEBRIS-Uncontaminated solid waste
resulting from the construction, remodeling, repair and demolition
of structures and roads; and uncontaminated solid waste consisting
of vegetation resulting from land clearing and grubbing, utility
line maintenance and seasonal and storm related cleanup. Such waste
includes, but is not limited to bricks, concrete and other masonry
materials, soil, rock, wood, wall coverings, plaster, drywall,
plumbing fixtures, non-asbestos insulation, roofing shingles,
asphaltic pavement, electrical wiring and components containing no
hazardous liquids, metals, brush grass clippings and leaves that
are incidental to any of the above.
HAZARDOUS WASTE-All solid waste designated as such under the
Environmental Conservation Law, the Comprehensive Environmental
Response, Compensation and Lia-
396
bility Act of 1980, the Resource Conservation and Recovery Act
of 1976 or any other applicable law.
PATHOLOGICAL WASTE-Waste material which may be considered
infectious or biohazardous, originating from hospitals, public or
private medical clinics, departments or research laboratories,
pharmaceutical industries, blood banks, forensic medical
departments, mortuaries, veterinary facilities and other similar
facilities and includes equipment, instruments, utensils, fomites,
laboratory waste (including pathological specimens and fomites
attendant thereto), surgical facilities, equipment, bedding and
utensils (including pathological specimens and disposal fomites
attendant thereto), sharps (hypodermic needles, syringes, etc.),
dialysis unit waste, animal carcasses, offal and body parts,
biological materials, (vaccines, medicines, etc.) and other similar
materials, but does not include any such waste material which is
determined by evidence satisfactory to the Town to have been
rendered non-infectious and non-biohazardous.
PERSONS-Any individual, partnership, corporation, association,
trust, business trust, joint venturer, governmental body or other
entity, howsoever constituted.
UNACCEPTABLE WASTE-Hazardous Waste, Pathological Waste and
sludge.
SLUDGE-Solid, semi-solid or liquid waste generated from a sewage
treatment plant, wastewater treatment plant, water supply treatment
plant, or air pollution control facility.
TOWN-When used herein, refers to the Town of Clarkstown.
Section 2. General Provisions A. Intent; Purpose.
1. The intent and purpose of this chapter is to provide for the
transportation and disposition of all solid waste within or
generated within the Town of Clarkstown so that all acceptable
solid waste generated within the Town is delivered to the Town of
Clarkstown solid waste facility situate at Route 303, West Nyack,
New York and such other sites,
397
situate in the Town, as may be approved by the Town for
recycling, processing or for other disposition or handling of
acceptable solid waste.
II. The powers and duties enumerated in this law constitute
proper town purposes intended to benefit the health, welfare and
safety of Town residents. Additionally, it is hereby found that, in
the exercise of control over the collection, transportation and
disposal of solid waste, the Town is exercising essential and
proper governmental functions.
B. Supervision and Regulation.
The Town Board hereby designates the Director of the Department
of Environmental Control to be responsible for the supervision and
regulation of the transportation and disposition of all acceptable
waste generated within the Town of Clarkstown. The Director of the
Department of Environmental Control shall be responsible for and
shall supervise the Town's activities in connection with any waste
collection and disposal agreements entered into between the Town
and third parties and shall report to the Town Board with respect
thereto.
C. Power to Adopt Rules and Regulations.
The Town Board may, after a public hearing, adopt such rules and
regulations as may be necessary to effectuate the purposes of this
chapter. At least seven (7) business days' prior notice of such
public hearing shall be published in the official newspaper of the
Town. A copy of all rules and regulations promulgated hereunder and
any amendments thereto shall be filed in the office of the Town
Clerk upon adoption and shall be effective as provided therein.
Section 3. Collection and Disposal of Acceptable Waste.
A. The removal, transportation and/or disposal of acceptable
waste within or generated within the Town of Clarkstown shall be
exclusively disposed of, controlled and regulated by the Town under
this chapter and Chapter 50 and Chapter 82 of the Clarkstown Town
Code, together with such
398
rules and regulations as the Town has or may from time to time
adopt.
B. All acceptable waste, as defined herein, except for
construction and demolition debris, shall be removed, transported
and/or disposed of only by carters licensed pursuant to the
requirements of Chapter 50 of the Clarkstown Town Code and any
amendments thereto. All other persons are hereby prohibited from
removing, transporting or disposing of acceptable waste, except for
construction and demolition debris generated within the Town of
Clarkstown, and except as may be provided for herein or in the
rules and regulations adopted pursuant to this chapter and/or
Chapter 50 of the Clarkstown Town Code.
C. All acceptable waste generated within the territorial limits
of the Town of Clarkstown is to be transported and delivered to the
Town of Clarkstown solid waste facility located at Route 303, West
Nyack, New York or to such other disposal or recycling facilities
operated by the Town of Clarkstown, * or to recycling centers
established by special permit pursuant to Chapter 106 of the
Clarkstown Town Code, except for recyclable materials which are
separated from solid waste at the point of origin or generation of
such solid waste, which separated recyclable materials may be
transported and delivered to facilities within the Town as
aforesaid, or to sites outside the town. As to acceptable waste
brought to said recycling facilities, the unrecycled residue shall
be disposed of at a solid waste facility operated by the Town of
Clarkstown.
D. It shall be unlawful to dispose of any acceptable waste
generated or collected within the Town at any location other than
the facilities or sites set forth in Paragraph "c" above.
*In a separate zoning ordinance, the Town declared that it shall
have only one designated transfer station. Town of Clarkstown
Zoning Code § 106-3.
399
Section 4. Disposal of Unacceptable Waste.
A. No unacceptable waste shall be delivered to the Town of
Clarkstown solid waste facility situate at Route 303, West Nyack,
New York or other solid waste facility operated by the Town of
Clarkstown or recycling centers established by special permit
pursuant to Chapter 106 of the Clarkstown Town Code by any person,
including, without limitation, any licensed carter or any
municipality. Failure to comply with the provisions of this section
shall be subject to the provisions with respect to such penalties
and enforcement, including the suspension or revocation of licenses
and the imposition of fines, in accordance with the provisions of
this chapter and/or Chapter 50 of the Clarkstown Town Code and any
amendments thereto. The Town Board of Clarkstown may, by
resolution, provide for the disposal of sewer sludge, generated by
a municipal sewer system or the Rockland County sewer district, at
a disposal facility situate within the Town of Clarkstown.
B. It shall be unlawful, within the Town, to dispose of or
attempt to dispose of unacceptable waste of any kind generated
within the territorial limits of the Town of Clarkstown, except for
sewer sludge as provided for in Section "N' above.
Section 5. Acceptable and Unacceptable Waste Generated Outside
the Town of Clarkstown.
A. It shall be unlawful, within the Town, to dispose of or
attempt to dispose of acceptable or unacceptable waste of any kind
generated or collected outside the territorial limits of the Town
of Clarkstown, except for acceptable waste disposed of at a Town
operated facility, pursuant to agreement with the Town of
Clarkstown and recyclables, as defined in Chapter 82 of the
Clarkstown Town Code, brought to a recycling center established by
special permit pursuant to Chapter 106 of the Clarkstown Town
Code.
B. It shall be unlawful for any person to import acceptable
waste or unacceptable waste from outside the Town of
400
Clarkstown and dump same on any property located within the Town
of Clarkstown and to proceed to sift, sort, mulch or otherwise mix
the said material with dirt, water, garbage, rubbish or other
substance, having the effect of concealing the contents or origin
of said mixture. This provision shall not apply to composting of
acceptable waste carried out by the Town of Clarkstown.
Section 6. Fees for Disposal of Acceptable Waste at Town
Operated Facilities.
There shall be separate fees established for disposal of
acceptable waste at Town operated disposal facilities. The Town
Board, by resolution adopted from time to time, shall fix the
various fees to be collected at said facilities. The initial fees
to be collected are those adopted by the Town Board on December 11,
1990 by Resolution Number 1097.
Section 7. Penalties for Offenses.
Notwithstanding any other provision of this chapter, the
violation of any provision of this chapter shall be punishable by a
fine of not more than one thousand dollars ($1,000.00) or by
imprisonment for a period not exceeding fifteen (15) days for each
offense, or by both fine and imprisonment, and each day that such
violation shall be permitted to continue shall constitute a
separate offense hereunder.
Section 8. Repealer; Severability.
Ordinances and local laws or parts of ordinances or local laws
heretofore enacted and inconsistent with any of the terms or
provisions of this chapter are hereby repealed. In the event that
any portion of this chapter shall be declared invalid by a court of
competent jurisdiction, such invalidity shall not be deemed to
affect the remaining portions hereof.
Section 9. When Effective.
This chapter shall take effect immediately upon filing in the
office of the Secretary of State.
401
JUSTICE O'CONNOR, concurring in the judgment.
The town of Clarkstown's flow control ordinance requires all
"acceptable waste" generated or collected in the town to be
disposed of only at the town's solid waste facility. Town of
Clarkstown, Local Law 9, §§ 3.C-D (1990) (Local Law 9). The Court
holds today that this ordinance violates the Commerce Clause
because it discriminates against interstate commerce. Ante, at 390.
I agree with the majority's ultimate conclusion that the ordinance
violates the dormant Commerce Clause. In my view, however, the
town's ordinance is unconstitutional not because of facial or
effective discrimination against interstate commerce, but rather
because it imposes an excessive burden on interstate commerce. I
also write separately to address the contention that flow control
ordinances of this sort have been expressly authorized by Congress,
and are thus outside the purview of the dormant Commerce
Clause.
I
The scope of the dormant Commerce Clause is a judicial creation.
On its face, the Clause provides only that "[t]he Congress shall
have Power ... To regulate Commerce ... among the several States
... " u. S. Const., Art. I, § 8, cl. 3. This Court long ago
concluded, however, that the Clause not only empowers Congress to
regulate interstate commerce, but also imposes limitations on the
States in the absence of congressional action:
"This principle that our economic unit is the Nation, which
alone has the gamut of powers necessary to control of the economy,
including the vital power of erecting customs barriers against
foreign competition, has as its corollary that the states are not
separable economic units .... [W]hat is ultimate is the principle
that one state in its dealings with another may not place itself in
a position of economic isolation." H. P. Hood & Sons,
402
Inc. v. Du Mond, 336 U. S. 525, 537-538
(1949) (internal quotation marks and citations omitted).
Our decisions therefore hold that the dormant Commerce Clause
forbids States and their subdivisions to regulate interstate
commerce.
We have generally distinguished between two types of
impermissible regulations. A facially nondiscriminatory regulation
supported by a legitimate state interest which incidentally burdens
interstate commerce is constitutional unless the burden on
interstate trade is clearly excessive in relation to the local
benefits. See Brown-Forman Distillers Corp. v. New York State
Liquor Authority,
476
U. S. 573, 579 (1986); Pike v. Bruce Church, Inc.,
397 U. S. 137, 142
(1970). Where, however, a regulation "affirmatively" or "clearly"
discriminates against interstate commerce on its face or in
practical effect, it violates the Constitution unless the
discrimination is demonstrably justified by a valid factor
unrelated to protectionism. See Wyoming v. Oklahoma,
502 U. S. 437, 454
(1992); Maine v. Taylor,
477 U. S. 131, 138
(1986). Of course, there is no clear line separating these
categories. "In either situation the critical consideration is the
overall effect of the statute on both local and interstate
activity." Brown-Forman Distillers, supra, at 579.
Local Law 9 prohibits anyone except the town-authorized transfer
station operator from processing discarded waste and shipping it
out of town. In effect, the town has given a waste processing
monopoly to the transfer station. The majority concludes that this
processing monopoly facially discriminates against interstate
commerce. Ante, at 391-392. In support of this conclusion, the
majority cites previous decisions of this Court striking down
regulatory enactments requiring that a particular economic activity
be performed within the jurisdiction. See, e. g., Dean Milk Co. v.
Madison,
340 U. S.
349 (1951) (unconstitutional for city to require milk to be
pasteurized within five miles of the city); Minnesota v. Barber,
136 U. S. 313
(1890) (unconstitutional for State
403
to require meat sold within the State to be examined by state
inspector); Foster-Fountain Packing Co. v. Haydel,
278 U. S. 1 (1928)
(unconstitutional for State to require that shrimp heads and hulls
must be removed before shrimp can be removed from the State);
South-Central Timber Development, Inc. v. Wunnicke,
467 U. S. 82 (1984)
(unconstitutional for State to require all timber to be processed
within the State prior to export).
Local Law 9, however, lacks an important feature common to the
regulations at issue in these cases-namely, discrimination on the
basis of geographic origin. In each of the cited cases, the
challenged enactment gave. a competitive advantage to local
business as a group vis-a-vis their out-of-state or nonlocal
competitors as a group. In effect, the regulating jurisdiction-be
it a State (Pike), a county (Fort Gratiot Sanitary Landfill, Inc.
v. Michigan Dept. of Natural Resources,
504 U. S. 353 (1992)), or
a city (Dean Milk)-drew a line around itself and treated those
inside the line more favorably than those outside the line. Thus,
in Pike, the Court held that an Arizona law requiring that Arizona
cantaloupes be packaged in Arizona before being shipped out of
state facially discriminated against interstate commerce:
The benefits of the discriminatory scheme benefited the Arizona
packaging industry, at the expense of its competition in
California. Similarly, in Dean Milk, on which the majority heavily
relies, the city of Madison drew a line around its perimeter and
required that all milk sold in the city be pasteurized only by
dairies located inside the line. This type of geographic
distinction, which confers an economic advantage on local interests
in general, is common to all the local processing cases cited by
the majority. And the Court has, I believe, correctly concluded
that these arrangements are protectionist either in purpose or
practical effect, and thus amount to virtually per se
discrimination.
In my view, the majority fails to come to terms with a
significant distinction between the laws in the local process-
404
ing cases discussed above and Local Law 9. Unlike the
regulations we have previously struck down, Local Law 9 does not
give more favorable treatment to local interests as a group as
compared to out-of-state or out-of-town economic interests. Rather,
the garbage sorting monopoly is achieved at the expense of all
competitors, be they local or nonlocal. That the ordinance does not
discriminate on the basis of geographic origin is vividly
illustrated by the identity of the plaintiffs in this very action:
Petitioners are local recyclers, physically located in Clarkstown,
that desire to process waste themselves, and thus bypass the town's
designated transfer facility. Because in-town processors-like
petitioners-and out-of-town processors are treated equally, I
cannot agree that Local Law 9 "discriminates" against interstate
commerce. Rather, Local Law 9 "discriminates" evenhandedly against
all potential participants in the waste processing business, while
benefiting only the chosen operator of the transfer facility.
I believe this distinction has more doctrinal significance than
the majority acknowledges. In considering state health and safety
regulations such as Local Law 9, we have consistently recognized
that the fact that interests within the regulating jurisdiction are
equally affected by the challenged enactment counsels against a
finding of discrimination. And for good reason. The existence of
substantial in-state interests harmed by a regulation is "a
powerful safeguard" against legislative discrimination. Minnesota
v. Clover Leaf Creamery Co.,
449 U. S. 456, 473, n. 17
(1981). The Court generally defers to health and safety regulations
because "their burden usually falls on local economic interests as
well as other States' economic interests, thus insuring that a
State's own political processes will serve as a check against
unduly burdensome regulations." Raymond Motor Transp., Inc. v.
Rice,
434 U. S.
429, 444, n. 18 (1978). See also Kassel v. Consolidated
Freightways Corp. of Del.,
450 U. S. 662, 675 (1981)
(same). Thus, while there is no bright
405
line separating those enactments which are virtually per se
invalid and those which are not, the fact that in-town competitors
of the transfer facility are equally burdened by Local Law 9 leads
me to conclude that Local Law 9 does not discriminate against
interstate commerce.
II
That the ordinance does not discriminate against interstate
commerce does not, however, end the Commerce Clause inquiry. Even a
nondiscriminatory regulation may nonetheless impose an excessive
burden on interstate trade when considered in relation to the local
benefits conferred. See Brown-Forman Distillers, 476 U. S., at 579.
Indeed, we have long recognized that "a burden imposed by a State
upon interstate commerce is not to be sustained simply because the
statute imposing it applies alike to ... the people of the State
enacting such statute." Brimmer v. Rebman,
138 U. S. 78, 83 (1891)
(internal quotation marks and citation omitted). Moreover, "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." Pike, 397 U. S., at 142. Judged against these
standards, Local Law 9 fails.
The local interest in proper disposal of waste is obviously
significant. But this interest could be achieved by simply
requiring that all waste disposed of in the town be properly
processed somewhere. For example, the town could ensure proper
processing by setting specific standards with which all town
processors must comply.
In fact, however, the town's purpose is narrower than merely
ensuring proper disposal. Local Law 9 is intended to ensure the
financial viability of the transfer facility. I agree with the
majority that this purpose can be achieved by other means that
would have a less dramatic impact on the flow of goods. For
example, the town could finance the
406
project by imposing taxes, by issuing municipal bonds, or even
by lowering its price for processing to a level competitive with
other waste processing facilities. But by requiring that all waste
be processed at the town's facility, the ordinance "squelches
competition in the waste-processing service altogether, leaving no
room for investment from outside." Ante, at 392.
In addition, "'[t]he practical effect of [Local Law 9] must be
evaluated not only by considering the consequences of the statute
itself, but also by considering how the challenged statute may
interact with the legitimate regulatory regimes of the other States
and what effect would arise if not one, but many or every,
[jurisdiction] adopted similar legislation.'" Wyoming v. Oklahoma,
502 U. S., at 453-454 (quoting Healy v. Beer Institute,
491 U. S. 324, 336
(1989)). This is not a hypothetical inquiry. Over 20 States have
enacted statutes authorizing local governments to adopt flow
control laws. * If the localities in these States impose the type
of restriction on the movement of waste that Clarkstown has
adopted, the free movement of solid waste in the stream of commerce
will be severely impaired. Indeed, pervasive flow control would
result in the type of balkanization the Clause is primarily
intended to prevent. See H. P. Hood & Sons, 336 U. S., at
537-538.
*Colo. Rev. Stat. §30-20-107 (Supp. 1993); Conn. Gen. Stat.
§22a-220a (1993); Del. Code Ann., Tit. 7, § 6406(31) (1991); Fla.
Stat. § 403.713 (1991); Haw. Rev. Stat. §340A-3(a) (1985); Ind.
Code §§36-9-31-3 and -4 (1993); Iowa Code § 28GA (1987); La. Rev.
Stat. Ann. § 30:2307(9) (West 1989); Me. Rev. Stat. Ann., Tit. 38,
§ 1304-B(2) (1964); Minn. Stat. § 115A.80 (1992); Miss. Code Ann. §
17-17-319 (Supp. 1993); Mo. Rev. Stat. §260.202 (Supp. 1993); N. J.
Stat. Ann. §§ 13.1E-22, 48:13A-5 (West 1991 and Supp. 1993); N. C.
Gen. Stat. § 130A-294 (1992); N. D. Cent. Code §§ 23-29-06(6) and
(8) (Supp. 1993); Ore. Rev. Stat. §§268.317(3) and (4) (1991); Pa.
Stat. Ann., Tit. 53, §4000.303(e) (Purdon Supp. 1993); R. I. Gen.
Laws §23-19-10(40) (1956); Tenn. Code Ann. § 68-211-814 (Supp.
1993); Vt. Stat. Ann., Tit. 24, §2203b (1992); Va. Code Ann. §
15.1-28.01 (Supp. 1993).
407
Given that many jurisdictions are contemplating or enacting flow
control, the potential for conflicts is high. For example, in the
State of New Jersey, just south of Clarkstown, local waste may be
removed from the State for the sorting of recyclables "as long as
the residual solid waste is returned to New Jersey." Brief for New
Jersey as Amicus Curiae 5. Under Local Law 9, however, if
petitioners bring waste from New Jersey for recycling at their
Clarkstown operation, the residual waste may not be returned to New
Jersey, but must be transported to Clarkstown's transfer facility.
As a consequence, operations like petitioners' cannot comply with
the requirements of both jurisdictions. Nondiscriminatory state or
local laws which actually conflict with the enactments of other
States are constitutionally infirm if they burden interstate
commerce. See Bibb v. Navajo Freight Lines, Inc.,
359 U. S. 520, 526-530
(1959) (unconstitutional for Illinois to require truck mudguards
when that requirement conflicts with the requirements of other
States); Southern Pacific Co. v. Arizona ex rel. Sullivan,
325 U. S. 761, 773-774
(1945) (same). The increasing number of flow control regimes
virtually ensures some inconsistency between jurisdictions, with
the effect of eliminating the movement of waste between
jurisdictions. I therefore conclude that the burden Local Law 9
imposes on interstate commerce is excessive in relation to
Clarkstown's interest in ensuring a fixed supply of waste to supply
its project.
III
Although this Court can-and often does-enforce the dormant
aspect of the Commerce Clause, the Clause is primarily a grant of
congressional authority to regulate commerce among the States.
Amicus National Association of Bond Lawyers (NABL) argues that the
flow control ordinance in this case has been authorized by
Congress. Given the residual nature of our authority under the
Clause, and
408
because the argument that Congress has in fact authorized flow
control is substantial, I think it appropriate to address it
directly.
Congress must be "unmistakably clear" before we will conclude
that it intended to permit state regulation which would otherwise
violate the dormant Commerce Clause. SouthCentral Timber, 467 U.
S., at 91 (plurality opinion). See also Sporhase v. Nebraska ex
rel. Douglas,
458 U.
S. 941, 960 (1982) (finding consent only where "Congress'
intent and policy to sustain state legislation from attack under
the Commerce Clause was expressly stated") (citations and internal
quotation marks omitted). The State or locality has the burden of
demonstrating this intent. Wyoming v. Oklahoma, 502 U. S., at
458.
Amicus NABL argues that Subchapter IV of the Resource
Conservation and Recovery Act of 1976 (RCRA), 90 Stat. 2813, as
amended, 42 U. S. C. § 6941 et seq., and its amendments, remove the
constitutional constraints on local implementation of flow control.
RCRA is a sweeping statute intended to regulate solid waste from
cradle to grave. In addition to providing specific federal
standards for the management of solid waste, RCRA Subchapter IV
governs "State or Regional Solid Waste Plans." Among the objectives
of the subchapter is to "assist in developing and encouraging
methods for the disposal of solid waste which are environmentally
sound"; this is to be accomplished by federal "assistance to States
or regional authorities for comprehensive planning pursuant to
Federal guidelines." § 6941.
Under RCRA, States are to submit solid waste management plans
that "prohibit the establishment of new open dumps within the
State," and ensure that solid waste will be "utilized for resource
recovery or ... disposed of in sanitary landfills ... or otherwise
disposed of in an environmentally sound manner." § 6943(a)(2). The
plans must also ensure that state and local governments not be
"prohibited under State or local law from negotiating and entering
into long-
409
term contracts for the supply of solid waste to resource
recovery facilities [or] from entering into long-term contracts for
the operation of such facilities." § 6943(a)(5).
Amicus also points to a statement in a House Report addressing §
6943(a)(5), a statement evincing some concern with flow
control:
"This prohibition [on state or local laws prohibiting long-term
contracts] is not to be construed to affect state planning which
may require all discarded materials to be transported to a
particular location .... " H. R. Rep. No. 94-1491, p. 34 (1976)
(emphasis added).
Finally, in the Solid Waste Disposal Act Amendments of 1980,
Congress authorized the Environmental Protection Agency (EP A) to
"provide technical assistance to States [and local governments] to
assist in the removal or modification of legal, institutional, and
economic impediments which have the effect of impeding the
development of systems and facilities [for resource recovery]." §
6948(d)(3). Among the obstacles to effective resource recovery are
"impediments to institutional arrangements necessary to undertake
projects ... including the creation of special districts,
authorities, or corporations where necessary having the power to
secure the supply of waste of a project." § 6948(d)(3)(C) (emphasis
added).
I agree with amicus NABL that these references indicate that
Congress expected local governments to implement some form of flow
control. Nonetheless, they neither individually nor cumulatively
rise to the level of the "explicit" authorization required by our
dormant Commerce Clause decisions. First, the primary focus of the
references is on legal impediments imposed as a result of state-not
federal-law. In addition, the reference to local authority to
"secure the supply of waste" is contained in § 6948(d)(3)(C), which
is a delegation not to the States but to
EPA of authority to
assist
410
local government in solving waste supply problems. EPA has
stated in its implementing regulations that the "State plan should
provide for substate cooperation and policies for free and
unrestricted movement of solid and hazardous waste across State and
local boundaries." 40 CFR § 256.42(h) (1993). And while the House
Report seems to contemplate that municipalities may require waste
to be brought to a particular location, this stronger language is
not reflected in the text of the statute. Cf. United States v.
Nordic Village, Inc.,
503 U. S. 30, 37 (1992)
(for waiver of sovereign immunity, "[i]f clarity does not exist [in
the text], it cannot be supplied by a committee report"); Dellmuth
v. Muth,
491 U. S.
223, 230 (1989) (same). In short, these isolated references do
not satisfy our requirement of an explicit statutory
authorization.
It is within Congress' power to authorize local imposition of
flow control. Should Congress revisit this area, and enact
legislation providing a clear indication that it intends States and
localities to implement flow control, we will, of course, defer to
that legislative judgment. Until then, however, Local Law 9 cannot
survive constitutional scrutiny. Accordingly, I concur in the
judgment of the Court.
JUSTICE SOUTER, with whom THE CHIEF JUSTICE and JUSTICE BLACKMUN
join, dissenting.
The majority may invoke "well-settled principles of our Commerce
Clause jurisprudence," ante, at 386, but it does so to strike down
an ordinance unlike anything this Court has ever invalidated.
Previous cases have held that the "negative" or "dormant" aspect of
the Commerce Clause renders state or local legislation
unconstitutional when it discriminates against out-of-state or
out-of-town businesses such as those that pasteurize milk, hull
shrimp, or mill lumber, and the majority relies on these cases
because of what they have in common with this one: out-of-state
processors are ex-
411
cluded from the local market (here, from the market for trash
processing services). What the majority ignores, however, are the
differences between our local processing cases and this one: the
exclusion worked by Clarkstown's Local Law 9 bestows no benefit on
a class of local private actors, but instead directly aids the
government in satisfying a traditional governmental responsibility.
The law does not differentiate between all local and all
out-of-town providers of a service, but instead between the one
entity responsible for ensuring that the job gets done and all
other enterprises, regardless of their location. The ordinance thus
falls outside that class of tariff or protectionist measures that
the Commerce Clause has traditionally been thought to bar States
from enacting against each other, and when the majority subsumes
the ordinance within the class of laws this Court has struck down
as facially discriminatory (and so avails itself of our "virtually
per se rule" against such statutes, see Philadelphia v. New Jersey,
437 U. S. 617,
624 (1978)), the majority is in fact greatly extending the Clause's
dormant reach.
There are, however, good and sufficient reasons against
expanding the Commerce Clause's inherent capacity to trump
exercises of state authority such as the ordinance at issue here.
There is no indication in the record that any out-of-state trash
processor has been harmed, or that the interstate movement or
disposition of trash will be affected one whit. To the degree Local
Law 9 affects the market for trash processing services, it does so
only by subjecting Clarkstown residents and businesses to burdens
far different from the burdens of local favoritism that dormant
Commerce Clause jurisprudence seeks to root out. The town has found
a way to finance a public improvement, not by transferring its cost
to out-of-state economic interests, but by spreading it among the
local generators of trash, an equitable result with tendencies that
should not disturb the Commerce Clause and should not be disturbed
by us.
412
I
Prior to the 1970's, getting rid of the trash in Clarkstown was
just a matter of taking it to the local dump. But over the course
of that decade, state regulators cited the town for dumping in
violation of environmental laws, and in August 1989 the town
entered into a consent decree with the New York State Department of
Environmental Conservation, promising to close the landfill, clean
up the environmental damage, and make new arrangements to dispose
of the town's solid waste. Clarkstown agreed to build a "transfer
station" where the town's trash would be brought for sorting out
recyclable material and baling the nonrecyclable residue for
loading into long-haul trucks bound for out-of-state disposal
sites.
Instead of building the transfer station itself, Clarkstown
contracted with a private company to build the station and run it
for five years, after which the town could buy it for $1. The town
based the size of the facility on its best estimate of the amount
of trash local residents would generate and undertook to deliver
that amount to the transfer station each year, or to pay a
substantial penalty to compensate for any shortfall. This "put or
pay" contract, together with the right to charge an $81 "tipping"
fee for each ton of waste collected at the transfer station, was
meant to assure the company its return on investment.
Local Law 9, the ordinance at issue here, is an integral part of
this financing scheme. It prohibits individual trash generators
within the town from evading payment of the $81 tipping fee by
requiring that all residential, commercial, and industrial waste
generated or collected within the town be delivered to the transfer
station. While Clarkstown residents may dump their waste at another
locally licensed recycling center, once such a private recycler
culls out the recyclable materials, it must dispose of any residue
the same way other Clarkstown residents do, by taking it to the
town's
413
transfer station. Local Law 9, §§ 3.C, 3.D (1990).1 If
outof-towners wish to dispose of their waste in Clarkstown or
recycle it there, they enter the town subject to the same
restrictions as Clarkstown residents, in being required to use only
the town-operated transfer station or a licensed recycling center.
§ 5.A.
Petitioner C & A Carbone, Inc., operated a recycling center
in Clarkstown, according to a state permit authorizing it to
collect waste, separate out the recyclables for sale, and dispose
of the rest. In violation of Local Law 9, Carbone failed to bring
this nonrecyclable residue to the town transfer station, but took
it directly to out-of-state incinerators and landfills, including
some of the very same ones to which the Clarkstown transfer station
sends its trash. Apparently, Carbone bypassed the Clarkstown
facility on account of the $81 tipping fee, saving Carbone money,
but costing the town thousands in lost revenue daily. In this
resulting legal action, Carbone's complaint is one that any
Clarkstown trash generator could have made: the town has created a
monopoly on trash processing services, and residents are no longer
free to provide these services for themselves or to contract for
them with others at a mutually agreeable price.
II
We are not called upon to judge the ultimate wisdom of creating
this local monopoly, but we are asked to say whether Clarkstown's
monopoly violates the Commerce Clause, as long read by this Court
to limit the power of state and local governments to discriminate
against interstate commerce:
1 The ordinance has exceptions not at issue here for hazardous
waste, pathological waste, and sludge, and for source-separated
recyc1ables, which can be disposed of within or outside the town.
Local Law 9, §§ 1,
3.C (1990).
414
"[The] 'negative' aspect of the Commerce Clause prohibits
economic protectionism-that is, regulatory measures designed to
benefit in-state economic interests by burdening out-of-state
competitors. Thus, state statutes that clearly discriminate against
interstate commerce are routinely struck down, unless the
discrimination is demonstrably justified by a valid factor
unrelated to economic protectionism." New Energy Co. of Ind. v.
Limbach, 486 U. S.
269, 273-274 (1988) (citations omitted).
This limitation on the state and local power has been seen
implicit in the Commerce Clause because, as the majority
recognizes, the Framers sought to dampen regional jealousies in
general and, in particular, to eliminate retaliatory tariffs, which
had poisoned commercial relations under the Articles of
Confederation. Ante, at 390. Laws that hoard for local businesses
the right to serve local markets or develop local resources work to
isolate States from each other and to incite retaliation, since no
State would stand by while another advanced the economic interests
of its own business classes at the expense of its neighbors.
A
The majority argues that resolution of the issue before us is
controlled by a line of cases in which we have struck down state or
local laws that discriminate against out-of-state or out-of-town
providers of processing services. See ante, at 391-392. With
perhaps one exception,2 the laws invalidated
2 The arguable exception is Pike v. Bruce Church, Inc.,
397 U. S. 137 (1970),
where the Court invalidated an administrative order issued pursuant
to a facially neutral statute. While the order discriminated on its
face, prohibiting the interstate shipment of respondent's
cantaloupes unless they were first packaged locally, the statute it
sought to enforce merely required that Arizona-grown cantaloupes
advertise their State of origin on each package. In Part III, I
discuss the line of cases in which we have struck down statutes
that, although lacking explicit geographical sorting mechanisms,
are discriminatory in practical effect.
415
in those cases were patently discriminatory, differentiating by
their very terms between in-state and out-of-state (or local and
nonlocal) processors. One ordinance, for example, forbad selling
pasteurized milk" 'unless the same shall have been pasteurized and
bottled ... within a radius of five miles from the central portion
of the City of Madison .... '" 3 Dean Milk Co. v. Madison,
340 U. S. 349, 350, n. 1
(1951) (quoting General Ordinances of the City of Madison § 7.21
(1949)). The other laws expressly discriminated against commerce
crossing state lines, placing these local processing cases squarely
within the larger class of cases in which this Court has
invalidated facially discriminatory legislation.4
As the majority recognizes, Local Law 9 shares two features with
these local processing cases. It regulates a processing service
available in interstate commerce, i. e., the sorting and baling of
solid waste for disposal. And it does so in a fashion that excludes
out-of-town trash processors by its very terms. These parallels
between Local Law 9 and the statutes previously invalidated confer
initial plausibility on the majority's classification of this case
with those earlier ones on processing, and they even bring this one
within the most general language of some of the earlier cases,
abhorring
3 The area encompassed by this provision included all of Madison
except the runways of the municipal airport, plus a small amount of
unincorporated land. See The Madison and Wisconsin Foundation, Map
of the City of Madison (1951).
4 See, e. g., Chemical Waste Management, Inc. v. Hunt,
504 U. S. 334 (1992)
(Alabama statute taxing hazardous waste not originating in State);
Wyoming v. Oklahoma,
502 U. S. 437 (1992)
(Oklahoma statute requiring power plants to burn at least 10
percent Oklahoma-mined coal); New Energy Co. of Ind. v. Limbach,
486 U. S. 269
(1988) (Ohio statute awarding tax credit for sales of ethanol only
if it is produced in Ohio or in a State that awards similar tax
breaks for Ohio-produced ethanol); New England Power Co. v. New
Hampshire,
455 U. S.
331 (1982) (New Hampshire statute prohibiting hydroelectric
power from being sold out of State without permission from the
State's Public Utilities Commission); Hughes v. Oklahoma,
441 U. S. 322 (1979)
(Oklahoma law forbidding out-of-state sale of natural minnows).
416
the tendency of such statutes "to impose an artificial rigidity
on the economic pattern of the industry," Toomer v. Witsell,
334 U. S. 385,
403-404 (1948).
B
There are, however, both analytical and practical differences
between this and the earlier processing cases, differences the
majority underestimates or overlooks but which, if given their due,
should prevent this case from being decided the same way. First,
the terms of Clarkstown's ordinance favor a single processor, not
the class of all such businesses located in Clarkstown. Second, the
one proprietor so favored is essentially an agent of the municipal
government, which (unlike Carbone or other private trash
processors) must ensure the removal of waste according to
acceptable standards of public health. Any discrimination worked by
Local Law 9 thus fails to produce the sort of entrepreneurial
favoritism we have previously defined and condemned as
protectionist.
1
The outstanding feature of the statutes or ordinances reviewed
in the local processing cases is their distinction between two
classes of private economic actors according to location, favoring
shrimp hullers within Louisiana, milk pasteurizers within five
miles of the center of Madison, and so on. See Foster-Fountain
Packing Co. v. Haydel, 278 U. S.l (1928); Dean Milk Co. v. Madison,
supra. Since nothing in these local processing laws prevented a
proliferation of local businesses within the State or town, the
out-of-town processors were not excluded as part and parcel of a
general exclusion of private firms from the market, but as a result
of discrimination among such firms according to geography alone. It
was because of that discrimination in favor of local businesses,
preferred at the expense of their out-of-town or out-of-state
competitors, that the Court struck down those local process-
417
ing laws 5 as classic examples of the economic protectionism the
dormant Commerce Clause jurisprudence aims to prevent. In the words
of one commentator summarizing our case law, it is laws "adopted
for the purpose of improving the competitive position of local
economic actors, just because they are local, vis-a-vis their
foreign competitors" that offend the Commerce Clause. Regan, The
Supreme Court and State Protectionism: Making Sense of the Dormant
Commerce Clause, 84 Mich. L. Rev. 1091, 1138 (1986). The Commerce
Clause does not otherwise protect access to local markets. Id., at
1128.6
5 See South-Central Timber Development, Inc. v. Wunnicke,
467 U. S. 82, 92
(1984) (quoting South Carolina Highway Dept. v. Barnwell Brothers,
Inc.,
303 U. S.
177, 185, n. 2 (1938)) (danger lies in regulation whose
"'burden falls principally upon those without the state' "); Dean
Milk Co. v. Madison,
340 U. S. 349, 354 (1951)
(in "erecting an economic barrier protecting a major local industry
against competition from without the State, Madison plainly
discriminates against interstate commerce. This it cannot do ...
"); Foster-Fountain Packing Co. v. Haydel,
278 U. S. 1, 13 (1928)
(statute unconstitutional because it "favor[s] the canning of the
meat and the manufacture of bran in Louisiana" instead of Biloxi);
Minnesota v. Barber,
136 U. S. 313, 323 (1890)
(statute infirm because its necessary result is "discrimination
against the products and business of other States in favor of the
products and business of Minnesota"). See also Fort Gratiot
Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources,
504 U. S. 353,
361 (1992) (statute infirm because it protects "local waste
producers ... from competition from out-of-state waste producers
who seek to use local waste disposal areas"); Philadelphia v. New
Jersey,
437 U. S.
617,626-627 (1978) (New Jersey "may not ... discriminat[e]
against articles of commerce coming from outside the State unless
there is some reason, apart from their origin, to treat them
differently").
6 See also Smith, State Discriminations Against Interstate
Commerce, 74 Calif. L. Rev. 1203, 1204, 1213 (1986) ("The nub of
the matter is that discriminatory regulations are almost invariably
invalid, whereas nondiscriminatory regulations are much more likely
to survive"; "[a] regulation is discriminatory if it imposes
greater economic burdens on those outside the state, to the
economic advantage of those within"); L. Tribe, American
Constitutional Law 417 (2d ed. 1988) ("[T]he negative implications
of the commerce clause derive principally from a political theory
of union, not
418
The majority recognizes, but discounts, this difference between
laws favoring all local actors and this law favoring a single
municipal one. According to the majority, "this difference just
makes the protectionist effect of the ordinance more acute" because
outside investors cannot even build competing facilities within
Clarkstown. Ante, at 392. But of course Clarkstown investors face
the same prohibition, which is to say that Local Law 9's exclusion
of outside capital is part of a broader exclusion of private
capital, not a discrimination against out-of-state investors as
such.7 Cf. Lewis v. BT Investment Managers, Inc.,
447 U. S. 27 (1980)
(striking down statute prohibiting businesses owned by outof-state
banks, bank holding companies, or trust companies from providing
investment advisory services). Thus, while these differences may
underscore the ordinance's anticompetitive effect, they
substantially mitigate any protectionist effect, for subjecting
out-of-town investors and facilities to the same constraints as
local ones is not economic protectionism. See New Energy Co. of
Ind. v. Limbach, 486 U. S., at 273-274.8
from an economic theory of free trade. The function of the
clause is to ensure national solidarity, not economic
efficiency").
7 The record does not indicate whether local or out-of-state
investors own the private firm that built Clarkstown's transfer
station for the municipality.
8 In a potentially related argument, the majority says our case
law supports the proposition that an "ordinance is no less
discriminatory because in-state or in-town processors are also
covered by [its] prohibition." Ante, at 391. If this statement is
understood as doing away with the distinction between laws that
discriminate based on geography and those that do not, authority
for it is lacking. The majority supports its statement by citing
from a footnote in
Dean Milk, that "[i]t is immaterial that
Wisconsin milk from outside the Madison area is subjected to the
same proscription as that moving in interstate commerce," 340 U.
S., at 354, n. 4, but that observation merely recognized that our
dormant Commerce Clause jurisprudence extends to municipalities as
well as to States and invalidates geographical restrictions phrased
in miles as well as in terms of political boundaries. This reading
is confirmed by the fact that the
419
Nor is the monopolist created by Local Law 9 just another
private company successfully enlisting local government to protect
the jobs and profits of local citizens. While our previous local
processing cases have barred discrimination in markets served by
private companies, Clarkstown's transfer station is essentially a
municipal facility, built and operated under a contract with the
municipality and soon to revert entirely to municipal ownership.9
This, of course, is no mere coincidence, since the facility
performs a municipal function that tradition as well as state and
federal law recognize as the domain of local government. Throughout
the history of this country, municipalities have taken
responsibility for disposing of local garbage to prevent noisome
smells, obstruction of the streets, and threats to public health,lO
and today
Dean Milk Court's only explanation for its statement was to cite
a case striking down a statute forbidding the selling of "'any
fresh meats ... slaughtered one hundred miles or over from the
place at which it is offered for sale, until and except it has been
inspected'" at a cost to its owner of a penny per pound. Brimmer v.
Rebman,
138 U. S.
78, 80 (1891) (quoting Acts of Va. 1889-1890, p. 63, ch. 80).
That the majority here cites also to Fort Gratiot Landfill v.
Michigan Dept. of Natural Resources, supra, may indicate that it
reads Dean Milk the same way I do, but then it cannot use the case
to stand for the more radical proposition I quoted above.
9 At the end of a 5-year term, during which the private
contractor receives profits sufficient to induce it to provide the
plant in the first place, the town will presumably step into the
contractor's shoes for the nominal dollar. Such contracts,
enlisting a private company to build, operate, and then transfer to
local government an expensive public improvement, enable
municipalities to acquire public facilities without resorting to
municipal funds or credit.
10 For example, in 1764 the South Carolina Legislature
established a street commission for Charleston with the power "to
remove all filth and rubbish, to such proper place or places, in or
near the said town, as they ... shall allot .... " Act of Aug. 10,
1764, '1. In New Amsterdam a century earlier, "[t]he burgomasters
and schepens ordained that all such refuse be brought to
dumping-grounds near the City Hall and the gallows
420
78 percent of landfills receiving municipal solid waste are
owned by local governments. See U. S. Environmental Protection
Agency, Resource Conservation and Recovery Act, Subtitle D Study:
Phase 1 Report, p. 4-7 (Oct. 1986) (Table 4-2). The National
Government provides "technical and financial assistance to States
or regional authorities for comprehensive planning" with regard to
the disposal of solid waste, 42 U. S. C. § 6941, and the State of
New York authorizes local governments to prepare such management
plans for the proper disposal of all solid waste generated within
their jurisdictions, N. Y. Envir. Conserv. Law § 27-0107 (McKinney
Supp. 1994). These general provisions underlie Clarkstown's more
specific obligation (under its consent decree with the New York
State Department of Environmental Conservation) to establish a
transfer station in place of the old town dump, and it is to
finance this transfer station that Local Law 9 was passed.
The majority ignores this distinction between public and private
enterprise, equating Local Law 9's "hoard[ingJ" of solid waste for
the municipal transfer station with the design and effect of
ordinances that restrict access to local markets for the benefit of
local private firms. Ante, at 392. But private businesses, whether
local or out of State, first serve the
nor to other designated places." M. Goodwin, Dutch and English
on the Hudson 105 (1977 ed.).
Indeed, some communities have employed flow control ordinances
in pursuit of these goals, ordinances this Court has twice upheld
against constitutional attack. See California Reduction Co. v.
Sanitary Reduction Works,
199 U. S. 306 (1905)
(upholding against a takings challenge an ordinance requiring that
all garbage in San Francisco be disposed of, for a fee, at
facilities belonging to F. E. Sharon); Gardner v. Michigan,
199 U. S. 325
(1905) (upholding against due process challenge an ordinance
requiring that all garbage in Detroit be collected and disposed of
by a single city contractor). It is not mere inattention that has
left these fine old cases free from subsequent aspersion, for they
illustrate that even at the height of the Lochner era the Court
recognized that for municipalities struggling to abate their
garbage problems, the Constitution did not require unimpeded
private enterprise.
421
private interests of their owners, and there is therefore only
rarely a reason other than economic protectionism for favoring
local businesses over their out-of-town competitors. The local
government itself occupies a very different market position,
however, being the one entity that enters the market to serve the
public interest of local citizens quite apart from private interest
in private gain. Reasons other than economic protectionism are
accordingly more likely to explain the design and effect of an
ordinance that favors a public facility. The facility as
constructed might, for example, be one that private economic
actors, left to their own devices, would not have built, but which
the locality needs in order to abate (or guarantee against
creating) a public nuisance. There is some evidence in this case
that this is so, as the New York State Department of Environmental
Conservation would have had no reason to insist that Clarkstown
build its own transfer station if the private market had furnished
adequate processing capacity to meet Clarkstown's needs. An
ordinance that favors a municipal facility, in any event, is one
that favors the public sector, and if "we continue to recognize
that the States occupy a special and specific position in our
constitutional system and that the scope of Congress' authority
under the Commerce Clause must reflect that position," Garcia v.
San Antonio Metropolitan Transit Authority,
469 U. S. 528, 556
(1985), then surely this Court's dormant Commerce Clause
jurisprudence must itself see that favoring state-sponsored
facilities differs from discriminating among private economic
actors, and is much less likely to be protectionist.
3
Having established that Local Law 9 does not serve the
competitive class identified in previous local processing cases and
that Clarkstown differs correspondingly from other local
processors, we must ask whether these differences justify a
standard of dormant Commerce Clause review that differs
422
from the virtually fatal scrutiny imposed in those earlier
cases. I believe they do.
The justification for subjecting the local processing laws and
the broader class of clearly discriminatory commercial regulation
to near-fatal scrutiny is the virtual certainty that such laws, at
least in their discriminatory aspect, serve no legitimate,
nonprotectionist purpose. See Philadelphia v. New Jersey, 437 U.
S., at 624 ("[W]here simple economic protectionism is effected by
state legislation, a virtually per se rule of invalidity has been
erected").l1 Whether we find "the evil of protectionism,"
id., at 626, in the clear import of specific statutory
provisions or in the legislature's ultimate purpose, the
discriminatory scheme is almost always designed either to favor
local industry, as such, or to achieve some other goal while
exporting a disproportionate share of the burden of attaining it,
which is merely a subtler form of local favoritism,
id., at
626-628.
On the other hand, in a market served by a municipal facility, a
law that favors that single facility over all others is a law that
favors the public sector over all private-sector processors,
whether local or out of State. Because the favor does not go to
local private competitors of out-of-state firms, out-of-state
governments will at the least lack a motive to favor their own
firms in order to equalize the positions of private competitors.
While a preference in favor of the government may incidentally
function as local favoritism as well, a more particularized enquiry
is necessary before a court can say whether such a law does in fact
smack too strongly of economic protectionism. If Local Law 9 is to
be struck down, in other words, it must be under that test most
readily
11 For the rare occasion when discriminatory laws are the best
vehicle for furthering a legitimate state interest, Maine v.
Taylor,
477 U. S.
131 (1986), provides an exception, but we need not address that
exception here because this ordinance is not subject to the
presumption of unconstitutionality appropriate for protectionist
legislation.
423
identified with Pike v. Bruce Church, Inc.,
397 U. S. 137 (1970).
III
We have said that when legislation that does not facially
discriminate "comes into conflict with the Commerce Clause's
overriding requirement of a national 'common market,' we are
confronted with the task of effecting an accommodation of the
competing national and local interests." Hunt v. Washington State
Apple Advertising Comm'n,
432 U. S. 333, 350
(1977). Although this analysis of competing interests has sometimes
been called a "balancing test," it is not so much an open-ended
weighing of an ordinance's pros and cons, as an assessment of
whether an ordinance discriminates in practice or otherwise
unjustifiably operates to isolate a State's economy from the
national common market. If a statute or local ordinance serves a
legitimate local interest and does not patently discriminate, "it
will be upheld unless the burden imposed on [interstate] commerce
is clearly excessive in relation to the putative local benefits."
Pike v. Bruce Church, Inc., supra, at 142. The analysis is similar
to, but softer around the edges than,12 the test we employ in cases
of overt discrimination. "[T]he question becomes one of degree,"
and its answer depends on the nature of the burden on interstate
commerce, the nature of the local interest, and the availability of
alternative methods for advancing the
12 Where discrimination is not patent on the face of a statute,
the party challenging its constitutionality has a more difficult
task, but appropriately so because the danger posed by such laws is
generally smaller. Discrimination that is not patent or purposeful
"in effect may be substantially less likely to provoke retaliation
by other states .... In the words of Justice Holmes, 'even a dog
distinguishes between being stumbled over and being kicked.'''
Smith, 74 Calif. L. Rev., at 1251 (quoting O. W. Holmes, The Common
Law 3 (1881)). See also Regan, The Supreme Court and State
Protectionism: Making Sense of the Dormant Commerce Clause, 84
Mich. L. Rev. 1091, 1133-1134 (1986).
424
local interest without hindering the national one. 397 U. S., at
142, 145.
The primary burden Carbone attributes to flow control ordinances
such as Local Law 9 is that they "prevent trash from being sent to
the most cost-effective disposal facilities, and insulate the
designated facility from all price competition." Brief for
Petitioners 32. In this case, customers must pay $11 per ton more
for dumping trash at the Clarkstown transfer station than they
would pay at Carbone's facility, although this dollar figure
presumably overstates the burden by disguising some differences
between the two: according to its state permit, 90 percent of
Carbone's waste stream comprises recyclable cardboard, while the
Clarkstown facility takes all manner of less valuable waste, which
it treats with state-of-the-art environmental technology not
employed at Carbone's more rudimentary plant.
Fortunately, the dollar cost of the burden need not be
pinpointed, its nature being more significant than its economic
extent. When we look to its nature, it should be clear that the
monopolistic character of Local Law 9's effects is not itself
suspicious for purposes of the Commerce Clause. Although the right
to compete is a hallmark of the American economy and local
monopolies are subject to challenge under the century-old Sherman
Act,13 the bar to monopolies (or, rather, the authority to
dismember and penalize them) arises from a statutory, not a
constitutional, mandate. No more than the Fourteenth Amendment, the
Commerce Clause "does not enact Mr. Herbert Spencer's Social
Statics ... [or]
13 See 15 U. S. C. §§ 1 and 2. Indeed, other flow control
ordinances have been challenged under the Sherman Act, although
without success where municipal defendants have availed themselves
of the state action exception to the antitrust laws. See Hybud
Equipment Corp. v. Akron,
742 F.2d
949 (CA6 1984); Central Iowa Refuse Systems, Inc. v. Des Moines
Metropolitan Solid Waste Agency,
715 F.2d
419 (CA8 1983). That the State of New York's Holland-Gromack
Law, 1991 N. Y. Laws, ch. 569 (McKinney), authorizes Clarkstown's
flow control ordinance may explain why no Sherman Act claim was
made here.
425
embody a particular economic theory, whether of paternalism ...
or of laissez faire." Lochner v. New York,
198 U. S. 45, 75 (1905)
(Holmes, J., dissenting). The dormant Commerce Clause does not
"protec[t] the particular structure or methods of operation in
a[ny] ... market." Exxon Corp. v. Governor of Maryland,
437 U. S. 117, 127
(1978). The only right to compete that it protects is the right to
compete on terms independent of one's location.
While the monopolistic nature of the burden may be disregarded,
any geographically discriminatory elements must be assessed with
care. We have already observed that there is no geographically
based selection among private firms, and it is clear from the face
of the ordinance that nothing hinges on the source of trash that
enters Clarkstown or upon the destination of the processed waste
that leaves the transfer station. There is, to be sure, an
incidental local economic benefit, for the need to process
Clarkstown's trash in Clarkstown will create local jobs. But this
local boon is mitigated by another feature of the ordinance, in
that it finances whatever benefits it confers on the town from the
pockets of the very citizens who passed it into law. On the
reasonable assumption that no one can avoid producing some trash,
every resident of Clarkstown must bear a portion of the burden
Local Law 9 imposes to support the municipal monopoly, an
uncharacteristic feature of statutes claimed to violate the
Commerce Clause.
By way of contrast, most of the local processing statutes we
have previously invalidated imposed requirements that made local
goods more expensive as they headed into the national market, so
that out-of-state economies bore the bulk of any burden. Requiring
that Alaskan timber be milled in that State prior to export would
add the value of the milling service to the Alaskan economy at the
expense of some other State, but would not burden the Alaskans who
adopted such a law. Cf. South-Central Timber Development, Inc. v.
Wunnicke,
467 U. S.
82, 92 (1984). Similarly, South Carolinians
426
would retain the financial benefit of a local processing
requirement for shrimp without paying anything more themselves. Cf.
Toomer v. Witsell, 334 U. S., at 403.14 And in Philadelphia v. New
Jersey, 437 U. S., at 628, the State attempted to export the burden
of conserving its scarce landfill space by barring the importation
of out-of-state waste. See also Brown-Forman Distillers Corp. v.
New York State Liquor Authority,
476 U. S. 573, 580 (1986)
(price reduction for in-state consumers of alcoholic beverages
procured at the expense of out-of-state consumers). Courts step in
through the dormant Commerce Clause to prevent such exports because
legislative action imposing a burden" 'principally upon those
without the state ... is not likely to be subjected to those
political restraints which are normally exerted on legislation
where it affects adversely some interests within the state.' "
South-Central Timber, supra, at 92 (quoting South Carolina Highway
Dept. v. Barnwell Brothers, Inc.,
303 U. S. 177, 185, n. 2
(1938)); see also Southern Pacific Co. v. Arizona ex rel. Sullivan,
325 U. S. 761,
767-768, n. 2 (1945). Here, in contrast, every voter in Clarkstown
pays to fund the benefits of flow control, however high the tipping
fee is set. Since, indeed, the mandate to use the town facility
will only make a difference when the tipping fee raises the cost of
using the facility above what the market would otherwise set, the
Clarkstown voters are funding their benefit by assessing themselves
and paying an economic penalty. Any whiff of economic protectionism
is far from obvious.15
14 I recognize that the economics differ if a State does not
enjoy a significant price advantage over its neighbors and thus
cannot pass along the added costs associated with its local
processing requirement, but such States are unlikely to adopt local
processing requirements for precisely that reason.
15 This argument does not alone foreclose the possibility of
economic protectionism in this case, as the ordinance could burden,
in addition to the residents of Clarkstown, out-of-town trash
processors who would have sought Clarkstown's business in the
absence of flow control. But as we
427
An examination of the record confirms skepticism that
enforcement of the ordinance portends a Commerce Clause violation,
for it shows that the burden falls entirely on Clarkstown
residents. If the record contained evidence that Clarkstown's
ordinance burdened out-of-town providers of garbage sorting and
baling services, rather than just the local business that is a
party in this case, that fact might be significant. But petitioners
have presented no evidence that there are transfer stations outside
Clarkstown capable of handling the town's business, and the record
is devoid of evidence that such enterprises have lost business as a
result of this ordinance. Cf. Pike v. Bruce Church, Inc., 397 U.
S., at 145 ("The nature of thee] burden is, constitutionally, more
significant than its extent" and the danger to be avoided is that
of laws that hoard business for local residents). Similarly, if the
record supported an inference that above-market pricing at the
Clarkstown transfer station caused less trash to flow to
out-of-state landfills and incinerators, that, too, might have
constitutional significance. There is, however, no evidence of any
disruption in the flow of trash from curbsides in Clarkstown to
landfills in Florida and Ohio.16 Here
will see, the absence of evidence of injury to such processors
eliminates that argument here.
16 In this context, note that the conflict JUSTICE O'CONNOR
hypothesizes between multiple flow-control laws is not one that
occurs in this case. If Carbone was processing trash from New
Jersey, it was making no attempt to return the nonrecyc1ed residue
there. And theoretically, Carbone could have complied with both
flow control ordinances, as Clarkstown's law required local
processing, while New Jersey's required only that any
postprocessing residue be returned to the State. But more
fundamentally, even if a nondiscriminatory ordinance conflicts with
the law of some other jurisdiction, that fact would not, in itself,
lead to its invalidation. In the cases JUSTICE O'CONNOR cites, the
statutes at issue served no legitimate state interest that weighed
against the burden on interstate commerce their conflicts created.
See Bibb v. Navajo Freight Lines, Inc.,
359 U. S. 520, 525 (1959)
(mudguards Illinois required on trucks possess no safety advantage
but create new hazards); Southern Pacific Co. v. Arizona
428
we can confidently say that the only business lost as a result
of this ordinance is business lost in Clarkstown, as customers who
had used Carbone's facility drift away in response to any higher
fees Carbone may have to institute to afford its share of city
services; but business lost in Clarkstown as a result of a
Clarkstown ordinance is not a burden that offends the
Constitution.
This skepticism that protectionism is afoot here is confirmed
again when we examine the governmental interests apparently served
by the local law. As mentioned already, the State and its
municipalities need prompt, sanitary trash processing, which is
imperative whether or not the private market sees fit to serve this
need at an affordable price and to continue doing so dependably
into the future. The state and local governments also have a
substantial interest in the flow-control feature to minimize the
risk of financing this service, for while there may be an element
of exaggeration in the statement that "[r]esource recovery
facilities cannot be built unless they are guaranteed a supply of
discarded material," H. R. Rep. No. 94-1491, p. 10 (1976), there is
no question that a "put or pay" contract of the type Clarkstown
signed will be a significant inducement to accept municipal
responsibility to guarantee efficiency and sanitation in trash
processing. Waste disposal with minimal environmental damage
requires serious capital investment,
id., at 34, and there
are limits on any municipality's ability to incur debt or
ex rel. Sullivan,
325 U. S. 761, 779 (1945)
(Arizona statute limiting length of trains "affords at most slight
and dubious advantage, if any" with respect to safety). Here, in
contrast, we will see that the municipality's interests are
substantial and that the alternative means for advancing them are
less desirable and potentially as disruptive of interstate
commerce. Finally, in any conflict between flow control that
reaches only waste within its jurisdiction and flow control that
reaches beyond (requiring waste originating locally to be returned
after processing elsewhere), it may be the latter that should give
way for regulating conduct occuring wholly out of State. See
Brown-Forman Distillers Corp. v. New York State Liquor Authority,
476 U. S. 573,
580-582 (1986).
429
to finance facilities out of tax revenues. Protection of the
public fisc is a legitimate local benefit directly advanced by the
ordinance and quite unlike the generalized advantage to local
businesses that we have condemned as protectionist in the past. See
Regan, 84 Mich. L. Rev., at 1120 ("[R]aising revenue for the state
treasury is a federally cognizable benefit"; protectionism is not);
cf. Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of
Natural Resources,
504 U. S. 353, 357 (1992)
(law protects private, not publicly owned, waste disposal capacity
for domestic use); Philadelphia v. New Jersey, 437 U. S., at 627,
n. 6 (expressing no opinion about State's power to favor its own
residents in granting access to state-owned resources)P
Moreover, flow control offers an additional benefit that could
not be gained by financing through a subsidy derived from general
tax revenues, in spreading the cost of the facility among all
Clarkstown residents who generate trash. The ordinance does, of
course, protect taxpayers, including those who already support the
transfer station by patronizing it, from ending up with the tab for
making provision for large-volume trash producers like Carbone, who
would rely on the municipal facility when that was advantageous but
opt out whenever the transfer station's price rose above the market
price. In proportioning each resident's burden to the amount of
trash generated, the ordinance has the added virtue of providing a
direct and measurable deterrent to the generation of unnecessary
waste in the first place. And in any event it is far from clear
that the alternative to flow control (i. e., subsidies from general
tax revenues or municipal bonds) would be less disruptive of
interstate commerce
17The Court did strike down California's depression-era ban on
the "importation" of indigent laborers despite the State's
protestations that the statute protected the public fisc from the
strain of additional outlays for poor relief, but the Court
stressed the statute's direct effect on immigrants instead of
relying on any indirect effects on the public purse. See Edwards v.
California,
314 U. S.
160, 174 (1941).
430
than flow control, since a subsidized competitor can effectively
squelch competition by underbidding it.
There is, in short, no evidence that Local Law 9 causes
discrimination against out-of-town processors, because there is no
evidence in the record that such processors have lost business as a
result of it. Instead, we know only that the ordinance causes the
local residents who adopted it to pay more for trash disposal
services. But local burdens are not the focus of the dormant
Commerce Clause, and this imposition is in any event readily
justified by the ordinance's legitimate benefits in reliable and
sanitary trash processing.
***
The Commerce Clause was not passed to save the citizens of
Clarkstown from themselves. It should not be wielded to prevent
them from attacking their local garbage problems with an ordinance
that does not discriminate between local and out-of-town
participants in the private market for trash disposal services and
that is not protectionist in its purpose or effect. Local Law 9
conveys a privilege on the municipal government alone, the only
market participant that bears responsibility for ensuring that
adequate trash processing services continue to be available to
Clarkstown residents. Because the Court's decision today is neither
compelled by our local processing cases nor consistent with this
Court's reason for inferring a dormant or negative aspect to the
Commerce Clause in the first place, I respectfully dissent.
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