112 F.3d 652 (3rd Cir. 1997), 96-5567, Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County

Docket Nº:Carbone, Appellants in 96-5567.
Citation:112 F.3d 652
Party Name:ATLANTIC COAST DEMOLITION & RECYCLING, INC., Plaintiff, v. BOARD OF CHOSEN FREEHOLDERS OF ATLANTIC COUNTY; Atlantic County Utilities Authority; Board of Chosen Freeholders of Camden County; Pollution Control Financing Authority of Camden County; Scott A. Weiner, Individually and in his capacity as Commissioner of New Jersey Department of Environmen
Case Date:May 01, 1997
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 652

112 F.3d 652 (3rd Cir. 1997)

ATLANTIC COAST DEMOLITION & RECYCLING, INC., Plaintiff,

v.

BOARD OF CHOSEN FREEHOLDERS OF ATLANTIC COUNTY; Atlantic

County Utilities Authority; Board of Chosen Freeholders of

Camden County; Pollution Control Financing Authority of

Camden County; Scott A. Weiner, Individually and in his

capacity as Commissioner of New Jersey Department of

Environmental Protection and Energy, Defendants,

Mercer County Improvement Authority; Hudson County

Improvement Authority; Essex County Utilities Authority;

Passaic County Utilities Authority; Cape May County

Municipal Utilities Authority; Camden County Energy

Recovery Associates, L.P., Intervenor-Defendants

C & A CARBONE, INC.; Bret Schundler, Mayor, in his capacity

as Mayor of city of Jersey City; John Rooney, Mayor, in his

capacity as Mayor of Borough of Northvale; National Solid

Waste Management Association, New Jersey Chapter; Waste

Management Association of New Jersey; City of Passaic;

City of Paterson; Dwight Destefan, Mayor, Individually and

in his capacity as Mayor of the Township of River Vale, Plaintiffs,

v.

Robert C. SHINN, Jr., Individually and in his capacity as

Commissioner of New Jersey Department of Environmental

Protection and Energy; New Jersey Department of

Environmental Protection and Energy; Larry J. McClure,

Individually and in his official capacity as Executive

Director of the Bergen County Utilities Authority; Bergen

County Utilities Authority; Mark Guarino, Individually and

in his official capacity as Director of the Bergen County

Health Department; Bergen County Health Department;

Kenneth Blane, Individually and in his official capacity as

Executive Director of the Hudson County Improvement

Authority; Hudson County Improvement Authority; Carol Ann

Wilson, Individually and in her official capacity as

Director of the Hudson County Health Department; William P.

Schuber, Individually and in his official capacity as County

Executive for Bergen County; Robert C. Janiszewski,

Individually and in his official capacity as County

Executive for Hudson County; Passaic County Utilities

Authority; Anthony Ross, Individually and in his capacity

as Executive Director; Nicola R. Didonna, Individually and

in his capacity as County Executive for the County of Passaic.

National Solid Wastes Management Association; Waste

Management Association of New Jersey; and C & A

Carbone, Appellants in 96-5567.

New Jersey Department of Environmental Protection; Scott A.

Weiner; and Robert C. Shinn, Jr., Commissioner,

Appellants in 96-5568.

Cape May County Municipal Utilities Authority ("CMCMUA"),

Appellants in 96-5569.

Essex County Utilities Authority; Hudson County Improvement

Authority; Mercer County Improvement Authority;

and Passaic County Utilities Authority,

Appellants in 96-5570.

Nos. 96-5567 to 96-5570.

United States Court of Appeals, Third Circuit

May 1, 1997

        Argued Dec. 17, 1996.

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        Mark R. Rosen (argued), Mesirov, Gelman, Jaffe, Cramer & Jamieson, Haddonfield, New Jersey, for Appellee Atlantic Coast Demolition & Recycling, Inc.

        Betty J. Christian (argued), Paul J. Ondrasik, Jr., William T. Hassler, David A. Stein, Steptoe & Johnson, L.L.P., Washington, D.C., and Joseph Torre, Torre & Torre, Hasbrouck Heights, New Jersey, for Appellants National Solid Wastes Management Association; C & A Carbone, Inc; and Waste Management Association of New Jersey.

        Peter Verniero, Attorney General of New Jersey, Division of Law, Trenton, New Jersey, Andrea M. Silkowitz, Assistant Attorney General, Gail M. Lambert (argued), and Stefanie A. Brand, Deputy Attorneys General of New Jersey, Newark, New Jersey, for Appellees Robert C. Shinn, Jr.; Scott Weiner, Individually and in his capacity as Commissioner of New Jersey Department of Environmental Protection and Energy, and New Jersey Department of Environmental Protection.

        Barbara H. Parker, Office of County Counsel, Hackensack, New Jersey, for Appellees Mark Guarino, Individually and in his official capacity as Director of the Bergen County Health Department, and William P. Schuber, Individually and in his official capacity as County Executive for Bergen County.

        Thomas S. Higgins, Higgins, Long & Bonfiglio, Laurel Springs, New Jersey, for Appellee Cape May County Municipal Utilities Authority.

        J. Sheldon Cohen (argued), DeCotiis, Fitzpatrick & Gluck, Teaneck, New Jersey, for Appellants Essex County Utilities Authority; Hudson County Improvement Authority; Mercer County Improvement Authority and Passaic County Utilities Authority.

        Stephen P. Sinisi (argued) and Scott G. Sproviero, Sinisi, Van Dam, Spoviero & Sokolich, Paramus, New Jersey, for Appellee Bergen County Utilities Authority.

        Gage Andretta and David J. Sprong, Wolff & Samson, Roseland, New Jersey, for Amicus Curiae, Camden County Energy Recovery Associates, L.P.

        Before: STAPLETON, ROTH and GARTH, Circuit Judges

        OPINION OF THE COURT

        ROTH, Circuit Judge.

        This case comes before us a second time for a determination whether New Jersey's regulation of the disposal of solid waste is constitutional under the Commerce Clause of the Constitution. New Jersey's "flow control" statutes require waste management districts to contract with designated waste facilities for the disposal of locally generated waste. Following the Supreme Court's decision in C & A Carbone, Inc. v. Town of

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Clarkstown, 511 U.S. 383, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994), we held that these laws discriminated against interstate commerce in purpose and effect by disfavoring out-of-state facilities and inhibiting the export of solid waste from New Jersey. Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic Cty., 48 F.3d 701, 712-13 (3d Cir.1995)("Atlantic Coast I" ). We then remanded the case to the district court to determine whether the flow control laws could meet heightened scrutiny under the "dormant" Commerce Clause. 1 Id. at 717-18.

        After hearing extensive evidence, the district court concluded that New Jersey had not met its burden of demonstrating that it lacked alternate means of achieving its legitimate interest in creating a safe and effective system for in-state solid waste disposal. Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic Cty., 931 F.Supp. 341, 359 (D.N.J.1996). Upon finding New Jersey's flow control laws unconstitutional, the district court granted a permanent injunction both to plaintiffs who process and dispose of construction and demolition waste (so-called "C & D" waste), and to plaintiffs who process other types of solid waste. 2 The district court then issued a two-year post-appeal stay on the permanent injunction, except as it applied to processors of C & D waste. Id.

        The Carbone plaintiffs and the defendants have appealed the district court's decision. We will affirm the district court's findings that New Jersey's flow control laws and regulations are unconstitutional insofar as they discriminate against out-of-state waste processing facilities. We will not, however, affirm the lower court's post-appeal stay because the record cannot support the district court's exercise of "equitable discretion" to delay the enjoining of an admittedly unconstitutional regulatory system.

        The district court had jurisdiction over this case pursuant to 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.

       I. FACTS

        As this nation's prosperity and consumption have increased over the years, so too has its solid waste. The processing and placement of garbage pose substantial economic and environmental concerns. In the past, states have attempted to meet those concerns by limiting or banning the importation of solid waste. The Supreme Court, however, has struck down these laws as unconstitutional because they discriminate against interstate commerce and thereby invoke heightened or rigorous scrutiny under the dormant component of the Commerce Clause. See City of Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978); Fort Gratiot Landfill v.

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Michigan Dep't of Natural Resources, 504 U.S. 353, 112 S.Ct. 2019, 119 L.Ed.2d 139 (1992).

        More recently, states and municipalities have erected barriers to the exportation of solid waste in the hope that in-state control of solid waste facilities will protect their communities from environmental harm, as well as guarantee a certain level of business for in-state processors. See Phillip Weinberg, Congress, the Courts, and Solid Waste Transport: Good Fences Don't Always Make Good Neighbors, 25 Envtl.L. 57 (1995). Like the previous bans on importation of solid waste, the locally enacted barriers against the exportation of solid waste implicate the dormant Commerce Clause because they raise concerns about state protectionism and "balkanization." Garbage, however unpleasant or unwanted, carries substantial value for those with the desire or know-how to dispose of it. In Carbone, the Supreme Court held that laws limiting the export of solid waste may be subject to heightened scrutiny because "[t]he Commerce Clause presumes a national market free from local legislation that discriminates in favor of local interests." Carbone, 511 U.S. at 393, 114 S.Ct. at 1683 (striking down local ordinance requiring all solid waste to be processed through local transfer station).

        The law challenged in this case falls into the second category of waste-control laws because it places barriers on the exportation of solid waste.

  1. New Jersey's Regulation of the Disposal of Solid Waste

            This Court...

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