Warren E. Burger: We will hear arguments first this morning in City of Philadelphia against New Jersey. Mr. Moore, you may proceed whenever you are ready.
Herbert F. Moore: Mr. Chief Justice and may it please the Court. This case is back on a remand. We were here about a year ago, I guess. The case concerns the constitutionality of a New Jersey statute that is known as Public Law 1973, Chapter 363. We are weighing this statute against the -- its validity under the commerce clause as well as under the supremacy clause. I will try to divide my time as equally as possible so I can cover both of the very important subjects and would like to reserve five minutes also for rebuttal. The statute in New Jersey bans the disposal of solid waste that originated out of New Jersey in New Jersey, that is the first Section of the statute, the Second section is also a very small paragraph and that bans the transportation of solid waste from -- that originated out of New Jersey into and through New Jersey. Now, the first question, of course, that we have to face with in considering the commerce clause situation is, is the subject matter and the activity legitimate in interstate commerce so that the commerce clause would even apply? Here, we are dealing with a subject matter that is very broad by definition of the New Jersey statute. It covers every type of conceivable waste, both solid and liquid. We should not fix in our minds rubbish or garbage as such as being the sole object of the statute because it is not. This covers automobile hulks which this Court recognized in the Hughes v. Alexandria Motors case not so long ago as being a legitimate item in interstate commerce, it includes demolition material. It includes the scraps from industry and commerce and hotels and restaurants, as well, of course, residential scraps. Then, in addition to the subject matter which we contend is legitimate because there are very -- there are two industries that depend upon this subject matter for their economic survival. One is the collection industry or the transporters of this waste and the other is the disposers of the waste which are basically in New Jersey, the solid waste landfill, sanitary landfill operators.
Warren E. Burger: But would the existence of these companies in that kind of business alone give them any special status? Suppose, for example, they instead of taking it over to New Jersey, they decided to haul it out to sea a little distance and drop it, would that be -- would there be a barrier to enforcing restraints against that for environmental purposes?
Herbert F. Moore: No, I do not believe so, Your Honor, because we are not arguing here that New Jersey does not have the right to deal evenhandedly in protecting its environment and the health that they definitely do. The question is, are they dealing in an evenhanded non-discriminatory fashion in doing this? The state has admitted that there is no qualitative difference between waste originating in another state and waste originating in New Jersey and as I develop my argument, I will point out how there is actually this is a facade, there is no environmental harm. There is no degradation to the environment to a properly regulated and operated sanitary landfill and that has been recognized by the Congress as well in New Jersey. And so I do not believe that it detracts in any way the fact that the item in commerce may be of value to only a very few people and anyway detracts from its legitimacy as an item of commerce. Now, what is it that the disposers, the sanitary landfill operators, do? What function do they perform? They are selling something. They are selling really a product in this sense. They are selling space in a sanitary landfill for the permanent interment of solid waste. It is very much similar to a warehouseman selling space on a short-term basis. He is not particularly concerned with the intrinsic value of the item that he rents space for. And likewise, the sanitary landfill operator, other than the requirements of environmental standards is not concerned with the intrinsic worth of the particular item going into his landfill, but he is performing a function of selling something and he is selling space.
William H. Rehnquist: Is it like the cemetery?
Herbert F. Moore: Yes, I was going to mention that and that is exactly what it is like. We could imagine the situation, Justice Rehnquist, of New York City which has been running out of cemetery space as you all know, anybody who has driven through there is well-aware of that and New Jersey -- New York put a ban that dead bodies could not be moved in unless they died as residents of the State of New York, I think, I myself, I would recognize that as being rather ludicrous, but that is the exact type of thing. The cemetery sells permanent and termite space and that is what the sanitary landfill does.
Speaker: Is that the way it always works that the – that the owner of the land is the seller and the depositor of the refuse is the buyer? What if a person has land that he wants filled? It is to his advantage to have it filled. Does he ever pay to have somebody dumb on his land?
Herbert F. Moore: Well, in New Jersey, it is so strictly regulated that nobody can have land filled unless they have registered with the State of New Jersey and filed an engineering design.
Speaker: And complied with all these --
Herbert F. Moore: And complied with the laws and obtained a registration statement.
Speaker: And made something of a capital investment for the --
Herbert F. Moore: Yes.
Speaker: To comply with the regulation of the law?
Herbert F. Moore: Yes, the environmental controls are extremely strict in New Jersey. So just cannot, if you have a hole in your backyard and decide you want it filled.
Speaker: The owner of the land is always the seller?
Herbert F. Moore: That is correct or he could be lessee, I mean, that --
Speaker: But, I mean, he is the seller?
Herbert F. Moore: That is correct.
Thurgood Marshall: You pay to put the garbage there?
Herbert F. Moore: That is right.
Speaker: You are not paid for putting it there?
Herbert F. Moore: No, you pay him. It is a very large industry in New Jersey and the environmental controls that the state exacts are extremely high and extremely expensive to install and that in its self supports a lot of peripheral industries that supply the environmental machines, mechanics, and things like that, a tremendous, heavily compacting units and bulldozers, etcetera, that go into operating of a sanitary landfill. Now, the federal courts in United States v. Pennsylvania Refuse Haulers has recognized for the purposes of the Sherman Anti-Trust Act, transportation or disposal -- transportation and disposal of waste to be a legitimate subject of interstate commerce. The Congress in the House Report on the Resource Conservation and Recovery Act, that is Report number 94, 1491, at several sections in their Committee Report, but I will just read one of them, it is on page 9, states “most of our discarded materials have, at some time, entered the flow of interstate commerce, if not as waste itself then in the form of products which will, at some future time, constitute waste.” The fact that waste itself is an interstate and inter-municipal, Congress has raised a number of problems. Several jurisdictions including some states have attempted to prohibit the importation of waste. So it has been recognized by Congress, it has been recognized by the federal courts and it is recognized by New Jersey that the transportation and disposal are legitimate businesses. They are engaged in intrastate commerce in New Jersey. They are public utilities in New Jersey, the collectors and the disposers. Now, under the commerce clause, of course, the test as to whether a state statute can legitimately co-exist in this field and regulate commerce, there has to meet certain tests and standards which this Court has developed over the years that are recited in Pike v. Bruce Church and many of the others, the Great Atlantic & Pacific Tea Co. v. Co-Trail and all the way down and basically, it is that the state statute must deal in an evenhanded non-discriminatory manner. It must serve a legitimate local purpose and not be a burden on interstate commerce or at least it must not be an excessive burden, if it turns out to be somewhat of a burden then of course we go into the balancing of the national interest against the local interest. The New Jersey statute discriminates, in that New Jersey says, and they have stated this, the acting governor when the bill was enacted made the statement, that we want to preserve this as a natural resource, meaning the sanitary landfills, for the benefit of the residents of the State of New Jersey. They are, in effect hording a resource. It is very much like the natural gas cases in which that was attempted as a conservation measure by those states to horde the natural gas for the benefit of the citizens of those states and this Court struck that down --
William H. Rehnquist: Would you say that a one-acre zoning limitation enacted by a town in New Jersey or perhaps a five-acre zoning limitation for a single family dwelling was a hording of natural resource as to levy who wanted to build on quarter-acre lots?
Herbert F. Moore: It could be, I think, stretched into that sense, yes, but in New Jersey, the sanitary landfill locations are also controlled by local zoning.
William H. Rehnquist: But would you say that any state regulation which required more space to be used or prevented space to be used that an out of state developer wanted to use was a hording of a natural resource and thereby violated the commerce clause?
Herbert F. Moore: You get to the point of are you taking private property from someone? Remember, these are not, the fact that they are public utilities, they are privately owned. If they are not operated by the state and very rarely by municipalities and very rarely by counties, the bulk of the landfills of New Jersey are privately owned. You get to a point to whether hording or reserving or hording a natural resource becomes a taking.
William H. Rehnquist: Yes, let us assume that point is not reached in answer to my hypothetical question so that your only complaint is the commerce clause?
Herbert F. Moore: Well, I do not quite get your question, Mr. Justice Rehnquist.
William H. Rehnquist: Well, you say that a state may not “horde” its natural resources and I am asking you if a zoning ordinance which as applied to someone who wants to build houses on quarter-acre lots insists that the minimum requirement is a five-acre lot, is guilty of hording?
Herbert F. Moore: No, I do not think that is guilty of hording at all because you have the due process clause coming in to protect that type of situation. As long as the regulation is reasonable and deals with the subject matter in an evenhanded fashion and is not arbitrary or capricious, then it is not a hording type of limitation. Also, this New Jersey statute in discrimination, it says to the operators of landfills in New Jersey, it says “you may sell your space in an unlimited way to anybody in New Jersey whose waste originated in New Jersey, but you cannot sell any space whatsoever to someone that is a business outside of the State of New Jersey whose waste originates outside of the State of New Jersey” and I think that is a very blatant example of the discrimination. Noe, the health and environment aspects, the findings of the New Jersey legislature at the beginning of the statute indicates that they are leaning on health and environment to justify this encouraging of the commerce clause by the State of New Jersey and just briefly, the state itself, Grant Walton, when he was Director of the Division of Environmental Quality of the Department of Environmental Protection of the State of New Jersey, in a published talk that he gave which is also in our brief on page 9, he stated that the health hazard, water and air pollution, methane gas problems commonly associated with landfills can be eliminated through proper design and operation of the facility, properly done, abandoned surface mines become parks, playgrounds, and golf courses. This is the Head of that Department in New Jersey who, himself, recognized that New Jersey standards were sufficiently high that there was no threat to the environment, no threat to the health of the public in the operation of the sanitary landfill. The New Jersey Supreme Court in its opinion in this case gave judicial notice to the New Jersey solid waste management plan and that plan states that a there is no technological reason why we cannot dispose of solid waste with a minimum of environmental harm.
Warren E. Burger: But under whose control?
Herbert F. Moore: Under the state’s control, absolutely under the state’s control. And that went on to say that the regulations in New Jersey with which to regulate and ensure a nuisance-free operation in disposal site in conformance with good practices and health standards. Interestingly, the Solid Waste Management Act, if I may just pause here for a moment, the Act that we are weighing here is called the Waste Control Act and that is just a prohibitory piece of legislation. New Jersey also has another Act called the Solid Waste Management Act which is not before this Court, but that is the piece of legislation that is very broad and very pervasive and it has to do with the regulation of sanitary landfills and any type of waste disposal and transportation. When that statute was originally enacted around 1970, they used the word “crisis” and they said New Jersey was facing the crisis because of the manner in which landfills were being operated. When they amended that statute here about a year ago, they left the word “crisis” out. So apparently, the New Jersey legislature itself does not recognize today that there is a crisis as there was several years ago, at least they thought there was at that time. Now, the Resource Conservation and Recovery Act, again in the Committee Report, to start with, has recognized that disposal of solid waste at a sanitary landfill is not a threat to the environment or the health. It stated that the legislative standard, this is on page 37 of the Report, the legislative for the administrator to determine the sanitary landfill is a disposal site of which there is no reasonable chance of adverse effects on health and the environment from the disposal of the discarded materials. This, in the definition, in 42 U.S.C. 6944 of the Resource Conservation and Recovery Act, the Congress has stated in defining a sanitary landfill that there is no reasonable probability of adverse affect on health and environment from disposal of solitary waste at such a facility, meaning a sanitary landfill. Now, I notice in reading a case that was decided here last week, Ray v. Atlantic Richfield, an interesting comparison there. There, the Court said, in dealing with the oil tankers in Puget Sound “the supremacy clause dictates that the federal judge, that a vessel is safe to navigate US waters prevails over a contrary state judgment.” Now, in the Resource Conservation and Recovery Act, there is a federal judgment. The federal judgment is that these landfills can be operated safely, no threat to the environment or the public health. Now, it seems to me with that same line of reasoning then it must follow that there is no reasonable probability of adverse effect on the public health and this must prevail, this over a contrary state judgment. Now, the local interest that is being served, I believe we must discount health and environment because I think it even though we, let me just stop for a moment, we all recognize that there are problems associated with the improper handling and treatment and disposal of solid waste. There is no question about that and we have gone into that great detail in our briefs. These problems are absolutely controllable as has been recognized by the Congress of the United States, it has been recognized by the Department of Environmental Protection actually of the State of New Jersey. So the local benefit really is an economic benefit. This has been stated by when acting Governor Beatleson signed this first statute into law, Governor Keyheal was a white, he made a public statement that this is going to preserve for New Jersey residence, these landfill areas for their use because there is tremendous costs involved in hauling waste for long-distances and that really is what it boils down to. New Jersey wants to gain the advantage of having these sanitary landfills kept in New Jersey only for their use so that industry and private people will not be subjected to the expenses of hauling longer distances.
Warren E. Burger: Well, on the other hand, I suppose it might be reasonably said that Pennsylvania wants to make use of the nearby space of New Jersey rather than using the much greater land area which Pennsylvania has because of the cost.
Herbert F. Moore: It would be an economic comparison.
Warren E. Burger: Well, it is the comparison of the size of the two states, roughly?
Herbert F. Moore: That is right.
Warren E. Burger: What is the comparison?
Herbert F. Moore: I guess Pennsylvania --
Warren E. Burger: Pennsylvania must be twice as big or three times as big?
Herbert F. Moore: At least. Pennsylvania and of course New York is the same thing. It is an economic situation. Philadelphia is facing today a tremendous disaster should New Jersey statute become operative. They just have not been able to develop a location at which it is economically feasible and socially feasible to transport this waste and in the large and huge quantities and volumes that is generated there.
Warren E. Burger: What you are saying and that perhaps it could be suggested that Philadelphia and other places in Pennsylvania want to use New Jersey’s space because it is more expensive to use Pennsylvania’s own space when there is a competition ultimately for the finite amount of space available.
Herbert F. Moore: This same thing, Mr. Chief Justice is happening in New Jersey today with large segments of the chemical industry. There is no place in the New Jersey for this industry to dispose of its solid waste. We have several affidavits from the leading companies that are household words in the United States that they must transport their waste out of New Jersey and into Pennsylvania. If the statute were ever to become operative, as we know, Pennsylvania has a retaliatory piece of legislation and New Jersey would be forever barred from disposing of its waste.
Thurgood Marshall: They were both sea conquers areas, do you?
Herbert F. Moore: No, that is pretty much closed up. That used to be. I think what gave rise really to a lot of this, because that was really a mess up there for many, many years.
William H. Rehnquist: Why as a matter of economic factors, Philadelphia want to go to New Jersey and New Jersey companies want to go to Philadelphia in a high-cost operation like this? Why would you not pick the place nearest at hand?
Herbert F. Moore: New Jersey does not go to Philadelphia. They go to other sections in Pennsylvania, the northwest boarder of New Jersey. They are not going into Philadelphia.
William H. Rehnquist: Why does Philadelphia not find places in Pennsylvania?
Herbert F. Moore: The problems attending that are that they are trying to develop a railroad project which has received a lot in the newspaper notoriety to fill the strip mines in Western Pennsylvania and there is a lot of technological problems in that operation which they are trying to work out. We have affidavits that explain all that, but the configuration of Philadelphia, if you look on a map as such, that the west of Philadelphia is heavily populated. You have tremendous traffic problems in moving any type of vehicle. New Jersey, right across the river and their several bridges, is relatively farmland and rural and it has always been traditionally a natural waste shed for the Delaware Valley area and New Jersey and Philadelphia. Incidentally, this morning, to give you an example what you are talking about. A very interesting thing happened on the way to Court. We were in traffic and in front of us was stalled a garbage truck and we were held up for a while and a thought occurred to me and it brought back to mind a conversation I had at the EPA a while back when we were discussing the statute and there is no landfills in the District of Columbia. The District of Columbia depends entirely upon Virginia and it depends upon the State of Maryland. Now, what would happen if Maryland or Virginia enacted a statute like New Jersey? You would be over this roof in solid waste in the District of Columbia. I want to just close quickly so I can pass a little bit on to the other aspect of the supremacy clause because I see my time is getting short here. There are many non-discriminatory alternatives that New Jersey has available to it to accomplish, if we say the legitimate local purpose is the preservation of land, a natural resource. There are many non-discriminatory alternatives, none of which they have ever mentioned. They could require, by legislation, heavier and improved compactor equipment to reduce the volume of waste. They could require all sanitary landfills to install shredding equipment, which shreds the waste so that it could be compacted and reduce the volume. They could enact evenhanded ban on non-returnable beverages. They could have state subsidies encouraging recycling much like Hughes in Maryland did.
Warren E. Burger: You are putting all these burdens on New Jersey. How about the people who are importing this stuff into New Jersey? Why can they not take some of these steps?
Herbert F. Moore: It is New Jersey that wants to ban it. As I understand the commerce clause, New Jersey must deal in an evenhanded fashion in accomplishing this. Now, I suppose the State of Virginia in Hughes could have done the same thing.
Warren E. Burger: You must first have to decide that it is true commerce, do you not?
Herbert F. Moore: Yes, sir. That is why I pointed out what was said by Congress, by the State of New Jersey in recognizing it as commerce, by the auto hulk situation which is a part of solid waste under definition in New Jersey.
Byron R. White: Mr. Moore, could New Jersey constitutionally put in a statute slowing down the importation of waste from all sources so that both New Jersey producers and Philadelphia producers would be equally effective? Would that be constitutional?
Herbert F. Moore: If they did it in an evenhanded fashion, I would say that it would be. It is interesting to note also that New Jersey talks about running out of landfill space. New Jersey to this day, and we have affidavits to this affect and that never ever have been countered, has yet to this day made a survey of the State of New Jersey to determine what type of acreage is available to it and to the users for solid waste disposal. New Jersey has hundreds and hundreds, and I guess thousands of acres of abandoned clay minds. It used to be the clay center, the ceramic center, Trent used to be for years and the reason is because of natural clay deposits. Abandoned sand and gravel pits all throughout the state. They make perfect sanitary landfills for land reclamation purposes to restore land for use by the public. New Jersey has never, to this day, made such a survey whatsoever.
William H. Rehnquist: Do you not have legislative findings in the Act?
Herbert F. Moore: The finding is that they are running out of landfill space, meaning the existing landfills, it is true. Every time you put something in a landfill, you are running out of that particular landfill space, but how can you have a crisis of a lack of land if you do not even know how much is available? You cannot.
Byron R. White: Of course, everything you say about New Jersey is equally true of Pennsylvania in a larger scale?
Herbert F. Moore: And of every state in the country, that is true. We find that this pertains to any type of an economic enterprise. New Jersey is a highly industrialized state. Look at the thousands and millions of cans of Campbell soup that are sent to Pennsylvania from New Jersey everyday and become waste in Pennsylvania. New Jersey does not want to let the very waste they created come back into New Jersey.
Speaker: That is waste that Pennsylvania creates. They consume it, do they not?
Herbert F. Moore: Yes, sir. In Hunt v. Washington Apple Commission, which is another very recent case, this Court stated that -- and in that particular case they said that the discrimination was facially neutral. I submit in this case the discrimination is quite clear and abundant and blatant. They said that where there is a clear discrimination and the Court ultimately found that there was in that case a clear discrimination, the burden falls on the state to justify. In that statute, in terms of local benefits flowing from the statute and the unavailability of non-discriminatory alternatives adequate to protect the local interest, the state has never made any effort to offer any non-discriminatory alternatives sufficient to protect the local interest. I have read a few of them. There are many, many more. As a matter of fact, the Resource Conservation and Recovery Act offers itself many non-discriminatory alternatives and New Jersey, by the statute, wants to bar itself from taking part in that program.
Warren E. Burger: You are now consuming the finite amount of rebuttal time that you have.
Herbert F. Moore: I am going to have to take that chance, Mr. Chief Justice, and consume it then because I would like to pass on for the moment to the supremacy clause. The Resource Conservation and Recovery Act which was enacted a few days prior to the last time I appeared here and argued, and that is why we are back now, is a very comprehensive piece of legislation. I think it is a case actually of first impression for this Court in the sense that I do not recall reading a helping hand or carrot-and-stick type of federal piece of legislation wherein you were presented with a problem. Can that type of federal legislation preempts a state statute? The New Jersey state statute we are talking about is both prohibitory and discriminatory. As I breakdown the supremacy clause cases, they dealt with primarily state statutes that were regulatory in nature as opposed to a federal piece of that regulation or prohibitory in nature, and a couple of them were both prohibitory and discriminatory and the Douglas v. Seacoast Products was that type of case. Now, I need not go into the discrimination aspect or the fact that, actually, the legitimate local purpose here is highly suspect because I have covered that already.
Warren E. Burger: Your time has expired, Mr. Moore.
Herbert F. Moore: All right. Thank you very much.
Warren E. Burger: Mr. Skillman.
Stephen Skillman: Mr. Chief Justice and may it please the Court. This case involves the disposal of waste onto the land. Waste is not a product which New Jersey has chosen or elected to manufacture. Rather, it is what the name implies. It is the useless byproducts of human existence. If we could eliminate the generation of all waste, we would. However, we cannot do that. Human beings in their day-to-day existence create waste and so long as waste continues to be created, we must find a way to dispose of it. The only generally feasible means of disposing of common household waste and commercial waste in the present time is by dumping the waste onto the land.
Potter Stewart: Or incinerating it, is that not true?
Stephen Skillman: You can incinerate, Your Honor. It is not done that much at the present time and one of the reasons is that it is very difficult to do that without creating a different kind of environmental problem, i.e. air pollution from the environmental problems that are created with landfills which I will get into in just a moment. You also can dump into the ocean. Again, another whole set of environmental problems, so the prevailing mode of disposal of household and commercial waste in this country today is landfilling and not the exclusive one. There are some incineration. I think there is still a limited amount of dumping into the ocean, but each one of those creates environmental problems and health risks. I would like to briefly go through what those environmental and health risks are with respect to landfilling. One of the primary effects of landfilling is the creation of a leachate. As all of the various products go into the landfill, water also comes in either by rain or by tidal flow or in one other way and when the landfill becomes saturated, it starts to produce this highly polluted liquid called “leachate” which can run off into both ground water and in the surface waters and ultimately can pollute the water which we use for drinking. So It is a very substantial environmental danger from the leachate produced by landfills. A second environmental danger from landfills is the creation of methane gas. It is quite common in landfills and even those where they are using modern techniques of landfilling for gases to get produced in sufficient concentrations under the ground for fires to breakout as a result of a concentration of methane gas.
Speaker: Mr. Skillman, what ordinarily is the number of acres taken by a typical land?
Stephen Skillman: They run a full gallon. You might have small municipal landfills that take just the waste from an individual municipality that may be just five or ten acres.
Speaker: They vary in depths?
Stephen Skillman: Yes.
Speaker: Yet, I gather, what you are telling us about leachate is common to all landfills whatever size, is that right?
Stephen Skillman: It is common to all landfills in the State of New Jersey. Whether or not there are landfill locations and some of them are more arid western states where it is possible to avoid that problem, I do not know. But, no one has pointed out to us any landfill locations in the State of New Jersey where this is not a problem.
Speaker: What is the number presently registered of landfills?
Stephen Skillman: The total number of landfills in New Jersey presently is over 300 and about, I think, between 50 and 100 of those are large commercial landfills and many of the remainder of the very --
Speaker: A large commercial landfill would run to what size?
Stephen Skillman: Again, it runs 50-100 acres and it can vary quite a bit.
Speaker: Are they pretty well-scattered up and down the state?
Stephen Skillman: Well, I think as Your Honor knows, there had been historically a fairly heavy concentration of landfills in the Hackensack Meadowlands region, but there are others scattered throughout the state, yes. Of course, the problems are greatest in the areas that are the most congested areas.
Speaker: At present commercial types, are they largely in the Hackensack area?
Stephen Skillman: That is not the only location. There are some very large commercial lands in the Hackensack Meadowlands area, but there are others in Middlesex County around New Brunswick. There are others in the Trenton area. The particular landfills that are involved in this case are, I think, mostly in the Burlington County, the appellants in this case. So they are not limited to the Hackensack Meadowlands, but that is one prime location and it is the location that has probably been the one of greatest concern to environmentalists in the State of New Jersey.
Speaker: Since I was born, that has been true.
Stephen Skillman: I think it is only recently that people have really began to appreciate the extent of the dangers of putting garbage into an area which is periodically inundated by the tide.
Thurgood Marshall: What are you going to do with the garbage?
Stephen Skillman: What are we going to do to the garbage, Your Honor?
Thurgood Marshall: What is anybody going to do with it? You say you cannot dump it, you cannot burn it, and you cannot eat it?[Laughter]
Stephen Skillman: I think that the long-run direction is to try to go towards resource recovery programs.
Thurgood Marshall: As of right now, what do we do?
Stephen Skillman: As of right now, we are going to continue to dump it in the land and pay the environmental price.
Thurgood Marshall: Not if you can help it.
Stephen Skillman: We are going to go ahead and -- we do not have any choice, but to go ahead and dump in the land the waste that is generated within the State of New Jersey. The intent of this legislation is not to increase the size of an already great problem by forcing the State of New Jersey to not only accommodate its own waste, but also --
Thurgood Marshall: So what is Philadelphia going to do?
Stephen Skillman: I think that the primary problem that Philadelphia has is one of Pennsylvania law. Pennsylvania law permits a municipality in the State of Pennsylvania to enact an ordinance which will prohibit the disposal in that municipality of waste originating in other municipalities. The municipalities that immediately surround Philadelphia have enacted ordinances which prohibit the disposal in those municipalities of waste originating in Philadelphia. So the answer as to what Philadelphia is going to do, what they should do, they should go to the Pennsylvania legislature and get the Pennsylvania legislature to enact legislation that has the practical effect of overriding these ordinances.
Thurgood Marshall: But you do not have any complaint against a landfill as being the only feasible method as of now?
Stephen Skillman: We have a complaint against it in the sense that we do pay a price. We do have these environmental problems, but absent another feasible alternative, that is where we are going to go ahead and take care of the disposal.
Thurgood Marshall: But you do not have any other one?
Stephen Skillman: We do not have any that are practically feasible on a wide scale price.
Warren E. Burger: I take it your argument is you do not want to take on Pennsylvania’s problems in addition to the problems New Jersey already has?
Stephen Skillman: Precisely, Your Honor. It is a matter of increasing the magnitude of something that is a problem in any event.
Potter Stewart: I thought, Mr. Skillman, that the record show that although leachate was and is a problem with most, if not all of the landfill operations in New Jersey and elsewhere, nonetheless techniques were available which at the appropriate cost, could be applied to not only mitigate, but solve this problem?
Stephen Skillman: I do not think the record shows that, Your Honor.
Potter Stewart: I have read affidavits in the record in this Appendix, maybe they were not introduced.
Stephen Skillman: There is some debate among sanitary engineers as to whether or not it is possible to construct a sanitary landfill where you will reduce to a great minimum or eliminate problems of leachate disposal.
Potter Stewart: Like everything else, it is a matter of cost?
Stephen Skillman: Well, it is a matter of cost and it is a matter of academic dispute as to whether it is possible also.
Potter Stewart: There are sworn affidavits here from experts saying that it is possible?
Stephen Skillman: There are experts saying that it is possible. There are some experts who think it is not possible.
Speaker: Is there any judicial finding?
Stephen Skillman: The finding of the Supreme Court of New Jersey is that landfills cost serious environmental problems.
Warren E. Burger: Let us assume for a moment that these alternatives are available, are they not equally available to both states?
Stephen Skillman: Both states can try, that is right. Whatever the techniques are to mitigate environmental harms and there are techniques to mitigate those harms, there is no question. As a matter of degree, they are equally available whether the landfill is located on the Pennsylvania side of the Delaware River or the New Jersey side of the river.
Speaker: Mr. Skillman, you said the Supreme Court of New Jersey made findings, that is unusual. What about the superior court? You have two cases there, do you not? The Hackensack --
Stephen Skillman: That is correct.
Speaker: Did either of the superior court, on this issue that my brother Stewart raised with you, make a finding?
Stephen Skillman: Both of the lower courts found this law to be unconstitutional.
Speaker: I know. On leachate, whether you can or cannot minimize?
Stephen Skillman: I was getting there. I think they both found it unconstitutional on the discrimination theory and did not get into that kind of a factual finding. Such a factual finding was made based upon the record by the Supreme Court of New Jersey, also made by the New Jersey legislature that landfills cause environmental harm. You have findings by both the New Jersey legislature and by the Supreme Court of New Jersey generally on the finding that landfills pose serious environmental and health dangers. I would add that those findings are supported by numerous affidavits in the record and they are supported by scholarly literature. They are supported by reports that have been put up on a federal --
Speaker: On the elimination of leachate, was there a finding based on conflicting affidavits by the New Jersey Supreme Court?
Stephen Skillman: No. I cannot say that there was a specific finding on the debate in a scientific community, whether it is possible to construct the ideal landfill that eliminates leachate. But I think that under the existing cases, it is clear that the mere possibility that a landfill maybe able to be constructed somewhere someday where these problems will be eliminated, does not prevent the New Jersey legislature from taking other constructive steps to mitigate an existing harm in light of the fact that every existing landfill, everyone can point out, does pose these problems and whether or not it is possible to construct that ideal landfill is a subject of much debate.
Potter Stewart: What you say is certainly relevant to the valid and legitimate exercise of what has become to be called as the police power by the State of New Jersey, but that certainly does not resolve the commerce question which is a matter of an issue of constitutional law is the issue before us?
Stephen Skillman: It does not resolve it, Your Honor, but it goes very much to the commerce clause question. This Court has recognized, in its most recent commerce clause decision in the Raymond Transportation Co. case, that the key consideration in terms of commerce or a key consideration is the nature of the state regulatory concern. So in that sense, it goes very directly to the commerce clause point.
Potter Stewart: Mr. Skillman, could I ask you, just to be sure I have your theory. If you are correct, I suppose every state could have a similar law and every state could ban the importation of waste disposal?
Stephen Skillman: I think it is a practical matter almost every state does, in one way or another.
Potter Stewart: Then, what do you do with the problem with an area such as the District of Columbia? I suppose your answer to that is well, it will just be terribly expensive to take some real estate within the district for disposal purposes, but that is that locality’s problem. Is that the way you look at it?
Stephen Skillman: Well, I would think that if such a problem was to exist in the district and there were not another feasible means of resolving that problem, we have little doubt that Congress would address itself to the problem.
Potter Stewart: To make the example fair, assume the district was just a sate like every other area. Say, it is a very crowded state, perhaps Delaware, Rhode Island. It might get so crowded that --
Stephen Skillman: New Jersey?[Laughter]
Potter Stewart: Or even New Jersey, that it would just be terribly costly for that particular state. You would say that is a matter of indifference. Each state has to bear its own costs in this area and interstate commerce is to be disregarded.
Stephen Skillman: No.
Potter Stewart: There should be no interstate market for waste disposals is your basic position. Is that correct?
Stephen Skillman: Yes, it is our position that this is not an area that is within the free trade, free market principles of the commerce clause due to the environmental harms.
John Paul Stevens: If you are right, why would you suggest that Congress could solve the problem or do you suggest it?
Stephen Skillman: I do not have any doubt, Your Honor, but Congress has the power --
John Paul Stevens: Under the commerce clause?
Stephen Skillman: Under the commerce clause --
John Paul Stevens: To regulate their state commerce and waste?
Stephen Skillman: That is correct and in fact it has done so. It is enacted comprehensive legislation, the Resource Recovering and Conservation Act which was enacted 13 days before.
John Paul Stevens: Are you conceding that this is an article of interstate commerce then?
Stephen Skillman: I am conceding that for purposes of the exercise of power by Congress, that it would constitute commerce.
John Paul Stevens: What would?
Stephen Skillman: The sale of space in New Jersey for landfills.
John Paul Stevens: At least you would say it would affect commerce?
Stephen Skillman: Excuse me?
John Paul Stevens: At least you would say it would affect commerce?
Stephen Skillman: It would affect Congress sufficiently to provide a foundation.
John Paul Stevens: How about the transportation of waste? That surely is commerce, is it not?
Stephen Skillman: Similarly --
John Paul Stevens: Similarly, that is commerce, is it not?
Stephen Skillman: Surely. But this Court has recognized power of Congress to deal with subjects such as prostitution, kidnapping in terms of Congress’ power under the commerce clause. The mere fact that Congress has the power to deal with the subject matter under the commerce clause does not mean that the commerce clause, by its own force, prevents a state from dealing with that same subject matter in the fashion that New Jersey has sought.
John Paul Stevens: Are you arguing in this case by the way, not only that the federal statute does not preempt New Jersey’s effort, it does not foreclose this statute, but that Congress has given affirmative consent to New Jersey to do what is done?
Stephen Skillman: Congress has not spoken directly to this type of statute, Your Honor.
John Paul Stevens: What if it had said “we know this is commerce, but we think that the state laws should be the one to control it” and that is all Congress said?
Stephen Skillman: I think it has come close to saying that with respect to state laws generally.
John Paul Stevens: But then you are arguing that Congress has not preempted, but it has affirmatively recognized the – and even if it is interstate commerce, it has subjected it to the reach of state law?
Stephen Skillman: I think that Congress’ findings and approach in the Resource Conservation and Recovery Act at least supports the conclusion that the New Jersey legislation is not prohibited by the commerce clause. We would not rely on that alone, but it certainly seems to be moving in the same direction, i.e. of recognizing that problems of solid waste disposal and management are essentially local problems to be dealt within the state and at local level.
Speaker: I gather you are saying that, at the very least, Congress has not prevented New Jersey from doing what New Jersey has done. On the contrary, the federal statute encourages New Jersey to do what it is doing?
Stephen Skillman: That is precisely my point, Your Honor.
Warren E. Burger: Let me take you back to the effort to analogize the District of Columbia to a state. Is there not a difference in the unique posture of the District of Columbia that Congress can tax all the people of the United States, no matter what the cost maybe to take care of the waste disposal problem for the District of Columbia, but New Jersey cannot tax anybody except the people of New Jersey for that purpose?
Stephen Skillman: That is true, but I do not think it is basic to the reasons that New Jersey has enacted the statute. New Jersey’s basic reasons for enactment of the statute are environmental.
Warren E. Burger: It is relevant to any possible analogy between the District of Columbia with its very limited land space and anyone of the other 50 states?
Stephen Skillman: Well, I think that the district is sui generis in great many respects, Your Honor, that, being only one of them, but the fact remains that the reason, the basis of enactment of this legislation by the State of New Jersey was not one having to do with cost. It was one having to do with environmental harm. In agreeing with Your Honor, I do not want to indicate anything to the contrary on that point.
Warren E. Burger: Well, if the Congress would have the power, would it not, to go over to Virginia or Maryland and condemn a large tract of land and take it for a federal purpose?
Stephen Skillman: I have no doubt.
Warren E. Burger: New Jersey has no such power or Pennsylvania to do that with reference to another state, has it?
Stephen Skillman: No, it does not.
Potter Stewart: It is protected only by the commerce clause?
Stephen Skillman: That is correct.
Speaker: Mr. Skillman, the extent to which New Jersey, the Congress has said can do what it has done, has it drawn a distinction between hazardous and other wastes?
Stephen Skillman: Yes.
Speaker: New Jersey has less, as far as Congress is concerned. Congress has reached in and said “we will take care of most of the hazardous waste problem. It is the rest of it that we need New Jersey,” is that right?
Stephen Skillman: Yes, the Resource Conservation and Recovery Act basically leaves solid waste disposal planning management to the states. The one major exception to that is in the area of hazardous wastes and in that area, the federal government has taken, I do not know where to characterize it as a preemptive posture, but certainly a very active position.
Speaker: To that extent, your statute cannot apply to hazardous waste?
Stephen Skillman: We have no problem with hazardous wastes.
Speaker: Yes, but on its face it applies to your statute?
Stephen Skillman: No, it does not.
Speaker: I thought you said it covers all wastes known to man?
Stephen Skillman: Our implementing the regulations which are at page 81 of the Appendix, Section D specifically excludes hazardous wastes which are disposed of through a disposal facility other than by disposal on or in the land. New Jersey, presently, does not register any landfill for the disposal of hazardous wastes in the land. The only circumstances under which we will presently register a facility for the disposal of hazardous wastes is by processing or a treatment facility. A processing or a treatment facility does not fall within the statute as qualified or modified by the implementing regulations on page 81 of the Appendix.
Speaker: So you are saying the hazardous issue is not even here then?
Stephen Skillman: There is no conflict at the present time with respect to hazardous waste and also --
Speaker: Or also, it is not even here?
Stephen Skillman: It also is not here for another reason. There is no indication in this record that the City of Philadelphia is generating hazardous waste. There is no indication that any of the appellant landfills receive hazardous wastes. What we are talking about here is not hazardous wastes. We are talking about common household waste. So whatever possible problems there maybe of collision between the hazardous waste provisions of the New Federal Act and a legislation similar to New Jersey there is just not --
Speaker: They are not here in this case?
Stephen Skillman: Are properly presented in this case.
Speaker: But, again, just to make it clear. The State of New Jersey is not contending that Congress could not, if it wanted to, preempt the state from doing what it has done?
Stephen Skillman: No, Your Honor. I think you asked me the same question last time.
Speaker: Yes, I know.
Stephen Skillman: It is the same. We do not take that position.
John Paul Stevens: Mr. Skillman, let me try one situation that seems to me it is somewhat analogous on you. Supposing the New Jersey legislature made a finding that there is a great deal with air pollution caused by power companies, electric utilities, and therefore, to reduce he environmental hazard associated with the production of power they passed a statute that said “power can only be produced for consumption within New Jersey.” Would that be permissible?
Stephen Skillman: I think that would be a much more difficult kind of a situation.
John Paul Stevens: Why?
Stephen Skillman: I think that that case would come much closer to the natural resource cases because what you will be talking about there is not the simple disposal of waste, but rather the manufacture of a product in which there is a recognized and established national market. There are also elements of particular states being in a better position than others to produce that particular product.
John Paul Stevens: That is precisely the point here. There is an interstate market for the waste. Some states can dispose of it more cheaply than others. Why is that any different? In each case, there is a byproduct of environmental harm, one it is methane gas and the other is smoke?
Stephen Skillman: I do not agree that some states can dispose of the waste more cheaply than others for any reasons other than the legal situation in Pennsylvania that I alluded to before which is certainly not the --
John Paul Stevens: But do you not think land cost has the availability of large amounts of vacant land would have something to do with the cost of disposing of this?
Stephen Skillman: It may, although I do not think that could be shown.
John Paul Stevens: My hypothesis before was that it is cheaper to dispose of it in New Jersey than the district because real estate is much more expensive and very scarce here. Is it not the function of the availability of vacant land?
Stephen Skillman: I do not think that that point could be established in the Philadelphia area, that the land is cheaper on the Jersey side than it is on the Pennsylvania side.
Warren E. Burger: The issue is vacant land, there is a lot more vacant land in Pennsylvania than there is in New Jersey, is there not?
Stephen Skillman: In the entire state, there is and in terms of areas that are sufficiently proximate to Philadelphia, I do not know if there is more, but I do not think there is any less.
Warren E. Burger: It might cost Philadelphia more to get it off in the Poconos Mountains or some place. They might run into a lot of problems about that, but at least there is more of it available than New Jersey has?
Stephen Skillman: I think that for the state as a whole there certainly is more of it. I do not want to say that within the proximate distance of Philadelphia there is.
Thurgood Marshall: Mr. Skillman, is there anything in the record on this because it worries me? It is my understanding that all of the land around Philadelphia is very high-priced land in mainline etcetera. Is anything in there on land values even in Philadelphia, around Philadelphia, or on the Jersey side or are we just surmising on it?
Stephen Skillman: I think that the topic is alluded to in one affidavit, Your Honor, but the record is pretty scant on it.
Thurgood Marshall: I could not find anything.
Stephen Skillman: It is pretty scant. The record is not good on that particular point.
Thurgood Marshall: Even the land in the Poconos is not the cheapest land in the country?
Stephen Skillman: We do not have any cheap land in New Jersey, Your Honor. It is all pretty expensive.
William H. Rehnquist: In a certain sense, Mr. Skillman, if your opponent’s argument is bought, a state which does not itself have any large cities in it, but which has neighboring states that have large cities on its borders, it is going to be subjected to a certain degree of servitude in that, the state without any large cities cannot under the commerce clause ban the disposal of refuse from other states without banning disposal of its own, whereas, the state with the large cities in it can simply ban all disposal of refuse and force its own cities to look elsewhere?
Stephen Skillman: That, as a practical matter, is the situation we have today. Pennsylvania, as I mentioned before, the surrounding communities have ordinances that say “we do not want Philadelphia waste.”
William H. Rehnquist: We will not take New Jersey waste either, and therefore, they do not violate the commerce clause, but they simply make Philadelphia go elsewhere?
Stephen Skillman: That is correct. Those particular municipalities take only their own. They will not take either Philadelphia or New Jersey. I think that the case that really comes closest to this case --
Speaker: Just one question on that, Mr. Skillman. Does the record tell us whether most of these large areas are within the boundaries of municipalities or some of the mountain rural areas? Pennsylvania is where the municipality you say had taken up all the existing character.
Stephen Skillman: We have large sprawling municipalities in our rural areas. I do not think we have such a thing as an area that is not part of the municipality and subject to the ordinances of a municipality.
Speaker: So Pennsylvania, it allows each municipality to preempt it for itself, and therefore, the whole state becomes unavailable to anyone else?
Stephen Skillman: Well, if not the whole state, at least what is the prime area which is those communities that are immediately surrounding Philadelphia. I cannot speak for the whole state.
Speaker: You mentioned primary. What factor makes it a primary, just proximity?
Stephen Skillman: Yes.
Speaker: Does the land value not have anything to do with it?
Stephen Skillman: No, I think that the main variable is hauling distance from point of origin to point of disposal. You are talking about tremendous volume when you are talking about ordinary household waste. It has to be within some reasonable hauling distance whether it is 60 miles, 70, or 100 miles. It cannot be 250 miles away when it is that kind of waste. When it is more complicated and hazardous waste that is in smaller quantities then we can have disposal half-way across the country, for example, radioactive waste. I think the case that comes closest to this case in terms of the commerce clause issues is the case of Clayson v. the State of Indiana which the Court decided in 1939. The Court in that case upheld an Indiana statute which in practical effect, prohibited the interstate transportation of animal carcasses not slaughtered for food. Now, we would submit that there is no significant difference in commerce clause terms between the disposal of dead animals and the disposal of waste. The Clayson case, therefore, provides very direct and very strong support for the position of the State of New Jersey that its prohibition upon the disposal within New Jersey of waste originating out of state is consistent with the commerce clause. Thank you.
Warren E. Burger: Thank you, Gentlemen. The case is submitted.