Solid Waste Management and the Constitution's Commerce Clause

The Urban Lawyer, Vol. 25, Page 21, Winter 1993

28 Pages Posted: 12 May 2016

See all articles by Martin E. Gold

Martin E. Gold

Sidley Austin LLP; Columbia University - Law School; Columbia University - Graduate School of Architecture, Planning and Preservation

Date Written: 1993

Abstract

State and local governments are spending substantial amounts of time and money trying to deal with the disposal of ever increasing quantities of trash. Approximately 180 million tons of municipal solid waste is generated annually. Most of it is disposed of in landfills, but with the rising cost and difficulty of siting new landfills, and their deficiencies from an environmental perspective, large amounts of waste are being processed in recycling facilities, composting facilities, or waste-to-energy facilities.

Many state and local governments have enacted solid waste management plans which contain "flow control" laws which govern where solid waste may be taken within a state, a county, or a municipality. These laws have been enacted for several purposes. They may be needed to allocate and direct waste to particular facilities for appropriate processing. The U.S. Environmental Protection Agency (USEPA), and most states, have adopted a waste management hierarchy. Many have the following order of priority: (1) waste reduction measures, (2) reuse for the original purpose, (3) recycling of the material and composting, (4) recovery of the energy in the material (waste-to-energy), and lastly (5) landfilling. Many state and local laws mandate minimum percentages of disposal through recycling and/or composting.

When part of an overall solid waste management plan, flow control laws may help control disposal costs, or produce revenues for specified facilities in the form of tipping fees. Often flow control ordinances are used to supply minimum amounts of waste needed to yield sufficient revenues (from generated electricity, or steam, or recycled materials) to pay the annual debt service on bonds issued in connection with a new facility or group of facilities. Since adequate revenues must be assured for the life of the bonds (e.g., twenty years), a steady flow of solid waste needs to be assured to cover debt service until maturity of the debt, so that the bonds can be sold.

Substantial amounts of the waste are also transported across state lines due to relatively lower disposal costs, or the unavailability of local disposal facilities. It is estimated that approximately eight percent or 15 million tons is moved annually across state boundaries. Much higher percentages are moved across county boundaries. Transported waste is likely to be moved across state borders in back-hauling (returning) trucks or by rail, but might also be moved by barge. As a result of dwindling local capacity to dispose of waste, dislike of hauling through local streets, and fear of waste whose components are unknown, opposition to the importation of "foreign" waste manifested itself, and states and local governments have been trying various legal mechanisms to block or limit such importation.

Solid waste management plans with flow control regulations often restrict the exportation of waste outside a state or county and may have a negative impact on some waste operators and haulers. Such plans may also be opposed on various other grounds. As a result, legal challenges have been brought to both importation controls and exportation controls. A large number of such challenges have been brought under the Commerce Clause of the U.S. Constitution. A number of important federal court decisions under the Commerce Clause were decided in 1992. This article reviews the state of the law and its growing impact on the management of solid waste in this country up to its date of publication.

Part I looks at state and local laws aimed at limiting importation of solid waste and their legitimacy under the Constitution. Part II considers state and local laws aimed at keeping waste within a state's or municipality's borders (i.e., exportation control), particularly those which direct the flow of waste to designated waste management facilities. Part III, sums up the effect of the court decisions which ended with the Supreme Court's unfortunate decision in C&A Carbone, Inc. v. Town of Clarkstown in 1994.

Keywords: waste management, flow control, solid waste management facilities, waste exportaion, waste importation

Suggested Citation

Gold, Martin E., Solid Waste Management and the Constitution's Commerce Clause (1993). The Urban Lawyer, Vol. 25, Page 21, Winter 1993, Available at SSRN: https://ssrn.com/abstract=2778286

Martin E. Gold (Contact Author)

Sidley Austin LLP ( email )

787 Seventh Avenue
New York, NY 10019
United States

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

Columbia University - Graduate School of Architecture, Planning and Preservation

New York, NY
United States

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