State Power
State Power
Although the commerce clause vests the federal government with exclusive authority over the national economy, the states retain an interest in regulating matters of health, safety, and public welfare. A state law that prohibits smoking in restaurants, for instance, accounts for public health but also affects interstate commerce. Regulation of this nature is allowable, however, so long as it does not unduly burden federal interests in efficient interstate commerce. Dormant commerce clause issues are not contingent upon congressional enactment of a conflicting regulation, and this absence of federal law is the reason these issues are referred to as “dormant” commerce clause issues. Such controversies are resolved pursuant to the supremacy clause and associated preemption principles, discussed later in Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Commission (1983). The seminal dormant commerce clause case arose in the mid-nineteenth century when, in Cooley v. Board of Wardens (1851), the Court upheld a state law requiring ships to use local pilots for navigation to and from the port of Philadelphia. This outcome correlates with modern standards providing that, absent protectionist methods or an undue burden upon interstate commerce, state regulation is permissible. The Court’s ruling, in Philadelphia v. New Jersey (1978), exemplifies the Court’s intolerance for state regulation that would secure an economic advantage and undermine the premises of a national economic union.
The Court has ruled, however, that states may have the power to sue an agency of the federal government in order to force that agency to comply with what the state considers its obligations—for instance, to deal with climate change—under federal law. In Massachusstts v. Environmental Protection Agency, the Court ruled that Massachusetts could sue to challenge the EPA’s failure to set forth rules dealing with greenhouse gas emissions.
City of Philadelphia v. New Jersey
Citation: 437 U.S. 617.
Issue: Whether the State of New Jersey violated the constitutional ban on discrimination against interstate commerce when it banned the importation of out-of-state landfill waste.
Year of Decision: 1978.
Author of Opinion: Justice Potter Stewart.
Vote: 7-2.
Following the American Revolution, the 13 colonies adopted the Articles of Confederation and retained for themselves the authority to regulate commerce. Under the Articles, the economy did not function well as the individual states established trade barriers and imposed protectionist measures, and it eventually became clear that the Articles must be amended (or some other action taken) to provide the federal government with greater power over commerce. Ultimately, a decision was made to replace the Articles with the United States Constitution and to vest control over interstate commerce in the federal government. Under the Constitution, the states retained the “police power,” which gave them the right to promote health, safety, and welfare issues. However, the Court placed limits on the states’ power to discriminate against, or impose burdens on, interstate commerce.
City of Philadelphia v. New Jersey involves the ongoing conflict between Congress’s power to regulate interstate commerce and the state’s police powers. City of Philadelphia involved a New Jersey law that prohibited the importation of most “solid or liquid waste which originated or was collected outside the territorial limits of the State. . . .” The law was challenged by private New Jersey landfills, as well as by cities in other states that had contracts with the landfills, on the basis that the law involved an unconstitutional discrimination against interstate commerce. The New Jersey Supreme Court upheld the law on the basis that it advanced “vital health and environmental objectives” and imposed no economic discrimination against, and with little burden upon, interstate commerce.
In reversing, the United States Supreme Court recognized that many aspects of commerce escape congressional attention “because of their local character and their number and diversity” and that the states may retain authority to regulate these subjects. When a state seeks to advance legitimate health and safety interests, and there is no attempt to discriminate against interstate commerce, the Court suggested that it would evaluate the restriction under a less restrictive level of review. However, the Court held that its prior decisions generally prohibited state and local governments from imposing “economic isolation” and protectionism and that “a virtually per se rule of invalidity has been erected” against isolationist measures.
In evaluating the New Jersey law, the Court quickly concluded that it was a “protectionist” measure. Although the state was concerned about the environmental effects of waste, the state sought to preserve its landfill sites exclusively for New Jersey citizens. The state thus determined that the best way to extend the life of its landfill sites was by excluding out-of-state waste. The Court concluded that, “whatever New Jersey’s ultimate 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.”
Justice William Rehnquist, joined by Chief Justice Warren Burger, dissented, arguing that problems with the sanitary treatment and disposal of solid waste is growing and that “landfills present significant health risks because they produce noxious liquids and pollute ground and surface water.” He disagreed with the Court’s conclusion that New Jersey could not prohibit out-of-state waste from being deposited in New Jersey landfills and pointed out that New Jersey was free to prohibit the importation of 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.” On the same basis, he concluded that “New Jersey should be free to prohibit the importation of solid waste because of the health and safety problems that such waste poses to its citizens. The fact that New Jersey continues to, and indeed must continue to, dispose of its own solid waste does not mean that New Jersey may not prohibit the importation of even more solid waste into the State.”
City of Philadelphia is an important decision because it reaffirms the long-standing principle that the states may not enact protectionist measures and may not discriminate against interstate commerce. Even when the “commerce” involves sanitary waste, which presents potential safety and health risks to a state’s citizens, the state has no power to discriminate.
Mr. Justice STEWART delivered the opinion of the Court.
. . . The New Jersey law at issue in this case falls squarely within the area that the Commerce Clause puts off limits to state regulation. On its face, it imposes on out-of-state commercial interests the full burden of conserving the State’s remaining landfill space. It is true that in our previous cases the scarce natural resource was itself the article of commerce, whereas here the scarce resource and the article of commerce are distinct. But that difference is without consequence. In both instances, the State has overtly moved to slow or freeze the flow of commerce for protectionist reasons. It does not matter that the State has shut the article of commerce inside the State in one case and outside the State in the other. What is crucial is the attempt by one State to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade.
The appellees argue that not all laws which facially discriminate against out-of-state commerce are forbidden protectionist regulations. In particular, they point to quarantine laws, which this Court has repeatedly upheld even though they appear to single out interstate commerce for special treatment. In the appellees’ view, [the law] is analogous to such health-protective measures, since it reduces the exposure of New Jersey residents to the allegedly harmful effects of landfill sites.
It is true that certain quarantine laws have not been considered forbidden protectionist measures, even though they were directed against out-of-state commerce. But those quarantine laws banned the importation of articles such as diseased livestock that required destruction as soon as possible because their very movement risked contagion and other evils. Those laws thus did not discriminate against interstate commerce as such, but simply prevented traffic in noxious articles, whatever their origin.
The New Jersey statute is not such a quarantine law. There has been no claim here that the very movement of waste into or through New Jersey endangers health, or that waste must be disposed of as soon and as close to its point of generation as possible. The harms caused by waste are said to arise after its disposal in landfill sites, and at that point, as New Jersey concedes, there is no basis to distinguish out-of-state waste from domestic waste. If one is inherently harmful, so is the other. Yet New Jersey has banned the former while leaving its landfill sites open to the latter. The New Jersey law blocks the importation of waste in an obvious effort to saddle those outside the State with the entire burden of slowing the flow of refuse into New Jersey’s remaining landfill sites. That legislative effort is clearly impermissible under the Commerce Clause of the Constitution.
Today, cities in Pennsylvania and New York find it expedient or necessary to send their waste into New Jersey for disposal, and New Jersey claims the right to close its borders to such traffic. Tomorrow, cities in New Jersey may find it expedient or necessary to send their waste into Pennsylvania or New York for disposal, and those States might then claim the right to close their borders. The Commerce Clause will protect New Jersey in the future, just as it protects her neighbors now, from efforts by one State to isolate itself in the stream of interstate commerce from a problem shared by all. . . .
Mr. Justice REHNQUIST, with whom CHIEF JUSTICE BURGER joins, dissenting.
. . . The question presented in this case is whether New Jersey must also continue to receive and dispose of solid waste from neighboring States, even though these will inexorably increase the health problems discussed above. The Court answers this question in the affirmative. New Jersey must either prohibit all landfill operations, leaving itself to cast about for a presently nonexistent solution to the serious problem of disposing of the waste generated within its own borders, or it must accept waste from every portion of the United States, thereby multiplying the health and safety problems which would result if it dealt only with such wastes generated within the State. Because past precedents establish that the Commerce Clause does not present appellees with such a Hobson’s choice, I dissent. . . .
Bibliography
Adler, Jonathon A. “Waste and the Dormant Commerce Clause—A Reply.” Green Bag 3 (2000): 353.
Kirsten Engel, “Reconsidering the National Market in Solid Waste: Trade-Offs in Equity, Efficiency, Environmental Protection and State Autonomy,” 73 North Carolina Law Review 1481 (1995).
Epstein, Richard A. “Waste and the Dormant Commerce Clause.” Green Bag 3 (1999): 29.
Verchic, Robert R. M. “The Commerce Clause, Environmental Justice, and the Interstate Garbage Wars.” S. California Law Review 70 (1997): 1239.
Massachusetts v. Environmental Protection Agency
Citation: 549 U.S. 497.
Issue: Whether a state has the legally authority to challenge a federal agency’s failure to regulate matters affecting the economy, such as global emission.
Year of Decision: 2007.
Outcome: Yes.
Author of Opinion: Justice John Paul Stevens.
Vote: 5-4.