City of Philadelphia v. New Jersey, No. 77-404

CourtUnited States Supreme Court
Writing for the CourtSTEWART
Citation57 L.Ed.2d 475,437 U.S. 617,98 S.Ct. 2531
Docket NumberNo. 77-404
Decision Date23 June 1978
PartiesCITY OF PHILADELPHIA et al., Appellants, v. State of NEW JERSEY et al

437 U.S. 617
98 S.Ct. 2531
57 L.Ed.2d 475
CITY OF PHILADELPHIA et al., Appellants,

v.

State of NEW JERSEY et al.

No. 77-404.
Argued March 27, 1978.
Decided June 23, 1978.
Syllabus

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, 8 S.Ct. 689, 31 L.Ed. 700, 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, 90 S.Ct. 844, 25 L.Ed.2d 174. 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

Herbert F. Moore, Princeton, N. J., for appellants.

Stephen Skillman, Trenton, N. J., for appellees.

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 required to decide whether this statutory prohibition violates the Commerce Clause of the United States Constitution.

I

The statutory provision in ques ion 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

Page 619

welfare and has promulgated regulations permitting and regulating the treatment and disposal of such waste in this State." N.J.Stat.Ann. § 13:1I-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,

Page 620

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 pre-empt 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, 96 S.Ct. 1504, 47 L.Ed.2d 760, and hearing oral argume t, we remanded for reconsideration of the appellants' pre-emption claim in light of the newly enacted Resource Conservation and Recovery Act of 1976, 90 Stat. 2795. 430 U.S. 141, 97 S.Ct. 987, 51 L.Ed.2d 224. Again the New Jersey Supreme Court found no federal pre-emption of the state law, 73 N.J. 562, 376 A.2d 888, and again we noted probable jurisdiction, 434 U.S. 964, 98 S.Ct. 501, 54 L.Ed.2d 448. We agree with the New Jersey court that the state law has not been pre-empted by federal legislation.4 The dispositive

Page 621

question, therefore, is whether the law is constitutionally permissible in light of the Commerce Clause of the Constitution.5

II

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

Page 622

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, 8 S.Ct. 689, 700, 31 L.Ed. 700. 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 infect d 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, 55 S.Ct. 497, 501, 79 L.Ed. 1032 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 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

Page 623

not free from constitutional scrutiny when they restrict that movement. Cf. Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 802-814, 96 S.Ct. 2488, 2494-2500, 49 L.Ed.2d 220; Meat Drivers v. United States, 371 U.S. 94, 83 S.Ct. 162, 9 L.Ed.2d 150.

III
A.

Although the Constitution gives Congress the power to regulate commerce among the States, many subjects of potential federal regulation under that power inevitably escape congressional attention "because of their local character and their number and diversity." South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U.S. 177, 185, 58 S.Ct. 510, 513, 82 L.Ed. 734. In the absence of federal legislation, these subjects are open to control by the States so long as they act within the restraints imposed by the Commerce Clause itself. See Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 440, 98 S.Ct. 787, 793, 794, 54 L.Ed.2d 664. The bounds of these restraints appear...

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707 practice notes
  • Juzwin v. Asbestos Corp., Ltd., No. 89-5420
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 9, 1990
    ...out to be 'a virtually per se rule of invalidity.' Page 690 " Norfolk Southern Corp., 822 F.2d at 400 (quoting Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 As the district court recognized, New Jersey has a legitimate interest in "assist[ing] New Jersey......
  • Union Cnty. Util. Auth. v. Bergen Cnty. Util. Auth., No. Civ.A. 97-6126(JEI).
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    • U.S. District Court — District of New Jersey
    • February 23, 1998
    ...execution of the Interdistrict Agreement and other solid waste management districts' agreements. See, e.g., Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978); Harvey & Harvey, Inc. v. Delaware Solid Waste Auth., 600 F.Supp. 1369 (D.Del.1985); J. Filiberto Sanita......
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    ...trade. See, e. g., Hughes v. Oklahoma, 441 U.S. 322, 326, 99 S.Ct. 1727, 1731, 60 L.Ed.2d 250 (1979); Philadelphia v. New Jersey, 437 U.S. 617, 623, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978); H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 534-538, 69 S.Ct. 657, 663-665, 93 L.Ed. 865 (19......
  • Kole v. Vill. of Norridge, No. 11 C 3871
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    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • April 19, 2013
    ...protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected." Philadelphia v. New Jersey, 437 U.S. 617, 623-24 (1978). If a law is not discriminatory, the second step is to apply the balancing test from Pike v. Bruce Church, Inc., 397 U.S. 137, 142......
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692 cases
  • Juzwin v. Asbestos Corp., Ltd., No. 89-5420
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 9, 1990
    ...out to be 'a virtually per se rule of invalidity.' Page 690 " Norfolk Southern Corp., 822 F.2d at 400 (quoting Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 As the district court recognized, New Jersey has a legitimate interest in "assist[ing] New Jersey......
  • Union Cnty. Util. Auth. v. Bergen Cnty. Util. Auth., No. Civ.A. 97-6126(JEI).
    • United States
    • U.S. District Court — District of New Jersey
    • February 23, 1998
    ...execution of the Interdistrict Agreement and other solid waste management districts' agreements. See, e.g., Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978); Harvey & Harvey, Inc. v. Delaware Solid Waste Auth., 600 F.Supp. 1369 (D.Del.1985); J. Filiberto Sanita......
  • Lewis v. Bt Investment Managers, Inc, No. 79-45
    • United States
    • United States Supreme Court
    • June 9, 1980
    ...trade. See, e. g., Hughes v. Oklahoma, 441 U.S. 322, 326, 99 S.Ct. 1727, 1731, 60 L.Ed.2d 250 (1979); Philadelphia v. New Jersey, 437 U.S. 617, 623, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978); H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 534-538, 69 S.Ct. 657, 663-665, 93 L.Ed. 865 (19......
  • Kole v. Vill. of Norridge, No. 11 C 3871
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • April 19, 2013
    ...protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected." Philadelphia v. New Jersey, 437 U.S. 617, 623-24 (1978). If a law is not discriminatory, the second step is to apply the balancing test from Pike v. Bruce Church, Inc., 397 U.S. 137, 142......
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    • Environmental Law Reporter Nbr. 45-6, June 2015
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