437 U.S. 617 (1978), 77-404, City of Philadelphia v. New Jersey

Docket Nº:No. 77-404
Citation:437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475
Party Name:City of Philadelphia v. New Jersey
Case Date:June 23, 1978
Court:United States Supreme Court

Page 617

437 U.S. 617 (1978)

98 S.Ct. 2531, 57 L.Ed.2d 475

City of Philadelphia


New Jersey

No. 77-404

United States Supreme Court

June 23, 1978

Argued March 27, 1978



New Jersey statute (ch. 363) that prohibits the importation of most "solid or liquid waste which originated or was collected outside the territorial limits of the State . . ." held to violate the Commerce Clause of the United States Constitution. Pp. 621-629.

(a) All objects of interstate trade merit Commerce Clause protection, and none is excluded from the definition of "commerce" at the outset; hence, contrary to the suggestion of the court below, there can be no doubt that the banning of "valueless" out-of-state wastes by ch. 363 implicates constitutional protection. Bowman v. Chicago & Northwestern R. Co., 125 U.S. 465, distinguished. Pp. 621-623.

(b) The crucial inquiry here must be directed to determining whether ch. 363 is basically an economic protectionist measure, and thus virtually per se invalid, or a law directed at legitimate local concerns that has only incidental effects on interstate commerce. Pike v. Bruce Church Inc., 397 U.S. 137, 142. Pp. 623-624.

(c) Since the evil of protectionism can reside in legislative means as well as legislative ends, it is immaterial whether the legislative purpose of ch. 363 is to protect New Jersey's environment or its economy, for, whatever the purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently. Both on its face and in its plain effect, ch. 363 violates this principle of nondiscrimination. A State may not attempt to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade, as ch. 363 seeks to do by imposing on out-of-state commercial interests the full burden of conserving New Jersey's remaining landfill space. Pp. 625-628.

(d) The New Jersey statute cannot be likened to a quarantine law which bans importation of articles of commerce because of their innate harmfulness, and not because of their origin. Though New Jersey concedes that out-of-state waste is no different from domestic waste, it has banned the former while leaving its landfill sites open to the latter, thus trying to saddle those outside the State with the entire burden of slowing the flow of wastes into New Jersey's remaining landfill sites. Pp. 628-629.

73 N.J. 562, 376 A.2d 888, reversed.

Page 618

STEWART, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 629.

STEWART, J., lead opinion

MR. JUSTICE STEWART delivered the opinion of the Court.

A New Jersey law prohibits the importation of most "solid or liquid waste which originated or was collected outside the territorial limits of the State. . . ." In this case, we are require to decide whether this statutory prohibition violates the Commerce Clause of the United States Constitution.


The statutory provision in question is ch. 363 of 1973 N.J. Laws, which took effect in early 1974. In pertinent part it provides:

No person shall bring into this State any solid or liquid waste which originated or was collected outside the territorial limits of the State, except garbage to be fed to swine in the State of New Jersey, until the commissioner [of the State Department of Environmental Protection] shall determine that such action can be permitted without endangering the public health, safety and

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welfare and has [98 S.Ct. 2533] promulgated regulations permitting and regulating the treatment and disposal of such waste in this State.

N.J.Stat.Ann. § 13I-10 (West Supp. 1978).1 As authorized by ch. 363, the Commissioner promulgated regulations permitting four categories of waste to enter the State.2 Apart from these narrow exceptions, however, New Jersey closed its borders to all waste from other States.

Immediately affected by these developments were the operators of private landfills in New Jersey and several cities in other States that had agreements with these operators for waste disposal. They brought suit against New Jersey and its Department of Environmental Protection in state court, attacking the statute and regulations on a number of state and federal grounds. In an oral opinion granting the plaintiffs' motion for summary judgment, the trial court declared the law unconstitutional because it discriminated against interstate commerce. The New Jersey Supreme Court consolidated this case with another reaching the same conclusion,

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Hackensack Meadowlands Development Comm'n v. Municipal Sanitary Landfill Auth., 127 N.J.Super. 160, 316 A.2d 711, and reversed, 68 N.J. 451, 348 A.2d 505. It found that ch. 363 advanced vital health and environmental objectives with no economic discrimination against, and with little burden upon, interstate commerce, and that the law was therefore permissible under the Commerce Clause of the Constitution. The court also found no congressional intent to preempt ch. 363 by enacting in 1965 the Solid Waste Disposal Act, 79 Stat. 997, 42 U.S.C. § 3251 et seq., as amended by the Resource Recovery Act of 1970, 84 Stat. 1227.

The plaintiffs then appealed to this Court.3 After noting probable jurisdiction, 425 U.S. 910, and hearing oral argument, we remanded for reconsideration of the appellants' preemption claim in light of the newly enacted Resource Conservation and Recovery Act of 1976, 90 Stat. 2795. 430 U.S. 141. Again, the New Jersey Supreme Court found no federal preemption of the state law, 73 N.J. 562, 376 A.2d 888, and again we noted probable jurisdiction, 434 U.S. 964. We agree with the New Jersey court that the state law has not been preempted by federal legislation.4 The dispositive

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[98 S.Ct. 2534] question, therefore, is whether the law is constitutionally permissible in light of the Commerce Clause of the Constitution.5


Before it addressed the merits of the appellants' claim, the New Jersey Supreme Court questioned whether the interstate movement of those wastes banned by ch. 363 is "commerce" at all within the meaning of the Commerce Clause. Any doubts on that score should be laid to rest at the outset.

The state court expressed the view that there may be two definitions of "commerce" for constitutional purposes. When relied on "to support some exertion of federal control or regulation," the Commerce Clause permits "a very sweeping concept" of commerce. 68 N.J. at 469, 348 A.2d at 514. But when relied on "to strike down or restrict state legislation," that Clause and the term "commerce" have a "much more confined . . . reach." Ibid.

The state court reached this conclusion in an attempt to

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reconcile modern Commerce Clause concepts with several old cases of this Court holding that States can prohibit the importation of some objects because they "are not legitimate subjects of trade and commerce." Bowman v. Chicago & Northwestern R. Co., 125 U.S. 465, 489. These articles include items

which, on account of their existing condition, would bring in and spread disease, pestilence, and death, such as rags or other substances infected with the germs of yellow fever or the virus of small-pox, or cattle or meat or other provisions that are diseased or decayed, or otherwise, from their condition and quality, unfit for human use or consumption.

Ibid. See also Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 525, and cases cited therein. The state court found that ch. 363, as narrowed by the state regulations, see n. 2, supra, banned only "those wastes which can[not] be put to effective use," and therefore those wastes were not commerce at all, unless

the mere transportation and disposal of valueless waste between states constitutes interstate commerce within the meaning of the constitutional provision.

68 N.J. at 468, 348 A.2d at 514.

We think the state court misread our cases, and thus erred in assuming that they require a two-tiered definition of commerce. In saying that innately harmful articles "are not legitimate subjects of trade and commerce," the Bowman Court was stating its conclusion, not the starting point of its reasoning. All objects of interstate trade merit Commerce Clause protection; none is excluded by definition at the outset. In Bowman and similar cases, the Court held simply that, because the articles' worth in interstate commerce was far outweighed by the dangers inhering in their very movement, States could prohibit their transportation across state lines. Hence, we reject the state court's suggestion [98 S.Ct. 2535] that the banning of "valueless" out-of-state wastes by ch. 363 implicates no constitutional protection. Just as Congress has power to regulate the interstate movement of these wastes, States are

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not free from constitutional scrutiny when...

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