No. 92-1402
Argued: December 7, 1993Decided: May 16, 1994
Held:
The flow control ordinance violates the Commerce Clause. Pp. 4-10.
- (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 Page II 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. Pp. 4-5.
- (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 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. 5-8.
- (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. 8-10.
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. SOUTER, J., filed a dissenting opinion, in which REHNQUIST, C.J., and BLACKMUN, J., joined. [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 1]
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 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. ___ (1992); Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U.S. ___ (1992); Oregon Waste Systems, Inc. v. Department of Environmental Quality of Oregon, 511 U.S. ___ (1994). 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 [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 2] 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 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 one dollar. 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 [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 3] 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 Clarkstown, 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 petitioners in New York Supreme Court, Rockland County, seeking an injunction requiring Carbone to ship all nonrecyclable waste to the Route 303 transfer station. Petitioners 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 [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 4] 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 petitioners 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 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 686. The New York Court of Appeals denied petitioners’ motion for leave to appeal. 80 N.Y.2d 760, 605 N. E. 2d 874 (1992). We granted certiorari, 508 U.S. ___ (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 [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 5] 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. 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 [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 6] 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 profitable 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. ___, ___ (1992) (slip op., at 7) (“[O]ur prior cases teach that a State (or one of its political subdivisions) may not avoid the [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 7] 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. Witsell, 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., 397 U.S. 137 (1970) (striking down Arizona statute that required all Arizona-grown cantaloupes to be packaged within the State prior to export); South-Central 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 resource – be 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 [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 8] 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 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 [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 9] 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 equalled 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 originating outside the State. See Chemical Waste Management, Inc. v. Hunt, 504 U.S. ___ (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 Oregon, 511 U.S. ___ (1994) (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 [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 10] Co. of Indiana 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 judgment and remand the case for proceedings not inconsistent with this decision.
It is so ordered. [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 11]
- 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 [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 12] Comprehensive Environmental Response, Compensation and Liability 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.
I. 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 [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 13] 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, 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. [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 14]
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 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 [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 15] 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.
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 “A” 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 [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 16] 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 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. [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 17]
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.
[ Footnote * ] In a separate zoning ordinance, the Town declared that it shall have only one designated transfer station. Town of Clarkstown Zoning Code 106-3. [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 1]
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 5. 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, [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 2] 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, 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 from regulating 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. ___ (1992) (slip op., at 15-16); 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 [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 3] 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 6-7. 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 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. ___ (1992)), or a city (Dean Milk) – drew a line around itself and treated those inside the line more favorably than those outside the line. [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 4] 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 processing 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 plaintiff in this very action: petitioner is a local recycler, physically located in Clarkstown, that desires to process waste itself, and thus bypass the town’s designated transfer facility. Because in-town processors – like petitioner – 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, [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 5] 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 Transportation, 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 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 [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 6] 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 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 8.
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] [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 7] adopted similar legislation.” Wyoming v. Oklahoma, 502 U.S., at ___ (slip op., at 15) (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. 1 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.
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 at 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 [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 8] 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 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. South-Central 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 [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 9] 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 ___ (slip op., at 19).
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 the Act, 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-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: [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 10]
- “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 EPA 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 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 [ C & A CARBONE, INC. v. CLARKSTOWN, ___ U.S. ___ (1994) , 11] 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. ___ (1992) (slip op., at 7) (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.
