William H. Rehnquist: We'll hear argument first this morning in No. 92-1402, C A Carbone, Inc., v. the Town of Clarkstown, New York. Ms. Christian.
Betty Jo Christian: Mr. Chief Justice, and may it please the Court: The issue in this case is whether the Commerce Clause prohibits a municipal ordinance that requires all trash, including trash that originated in other towns and other States, to be sent to a designated local facility for processing before it can be shipped to other States for disposal. Petitioners operate a recycling facility in Clarkstown, New York. They receive trash from New Jersey and from points in New York outside of Clarkstown, separate it into recyclable and nonrecyclable components, process and bale or package both components, and then ship them to users or disposers in other States. The Clarkstown ordinance permits them to ship the recyclables directly to users in other States. However, it prohibits petitioners from shipping the nonrecyclable trash directly to waste energy plants or landfills in other States, and requires instead that they be sent to a designated transfer station in Clarkstown, which levies--
William H. Rehnquist: Ms. Christian, what sections of the ordinance are you attacking?
Betty Jo Christian: --We are primarily attacking section 5. The respondents have taken the position that this case is governed instead by section 3. To the extent that section 3 has any bearing on trash that originated outside of Clarkstown, we are attacking that section as well. But our challenge is limited to the trash that originated in towns outside of Clarkstown.
William H. Rehnquist: Thank you.
Betty Jo Christian: The designated--
Antonin Scalia: Excuse me. Why don't you have any objection to trash that's generated within Clark... you don't have any objection to trash generated within Clarkstown?
Betty Jo Christian: --I think, from the standpoint of constitutional analysis, Justice Scalia, it is also invalid under this Court's prior decisions. But as a business matter in the lower courts--
Antonin Scalia: You don't care.
Betty Jo Christian: --The... precisely. [Laughter] The petitioners chose to challenge only the out-of-town trash, because that's what their business really consists of.
Sandra Day O'Connor: Well, now, Ms. Christian, you started to tell us how the ordinance applies. Now, does the city prohibit you from shipping the waste on out--
Betty Jo Christian: Yes--
Sandra Day O'Connor: --Or is it a matter of requiring you to pay the charge before you ship it out?
Betty Jo Christian: --The city prohibits petitioners from shipping the trash directly to out-of-State users or landfills.
Sandra Day O'Connor: But after it's sorted and in the city's facility, or processed in the city's facility, and if you pay the charge to the city, then can you ship what remains out?
Betty Jo Christian: As... as we understand the ordinance as it has been interpreted by the city, the petitioners are required, after they have processed and baled the trash, to deliver it to the designated transfer facility. That transfer facility levies the charge of 81 a ton, and then the transfer facility itself ships the trash to landfills in other States. So that petitioners themselves are required... instead of taking the trash directly to an out-of-State destination, petitioners are required to take it to the designated facility. The designated facility then performs whatever processing they perform, and the--
Sandra Day O'Connor: And the petitioners are in the business of disposing of waste and they can do it more cheaply if they don't have to submit it to the town processing. Is that--
Betty Jo Christian: --It is less expensive for the out-of-State customers of petitioners, and with respect to petitioners the Clarkstown ordinance, in effect, adds an expense of 81 for every ton of nonrecyclable trash.
Sandra Day O'Connor: --Now, does the town impose that if you pick up waste from another... from outside the town and simply transport it through the town without any further treatment?
Betty Jo Christian: Well, petitioners--
Sandra Day O'Connor: Does it apply to that?
Betty Jo Christian: --It apparently does not apply to that, but, in fact, petitioners do not do that. Petitioners are in the business of operating a recycling facility.
Sandra Day O'Connor: In the town.
Betty Jo Christian: In the town. Now, the trash itself is brought to petitioners by haulers from other towns or other States. Petitioners themselves are not picking up trash in the other towns or States. It is brought to them by private trucking companies, which bring the trash to petitioners. Petitioners then process and bale the trash, and then load it onto the trucks of independent trucking companies.
Sandra Day O'Connor: Okay, all right. Well, now the town treats everyone alike, whether you're inside or outside the town, I take it?
Betty Jo Christian: But the... that is correct, but the constitutional flaw is the export ban itself, the local processing requirement. The lower courts reasoned that there was no discrimination against interstate commerce because it applied the local processing requirement to local as well as out-of-town trash.
Sandra Day O'Connor: Well, are there some municipal functions that the municipality can undertake as a monopoly and impose its will on everyone, like sewage disposal or something of that kind?
Betty Jo Christian: Certainly, Justice O'Connor.
Sandra Day O'Connor: Can a municipality have a monopoly?
Betty Jo Christian: Well, a municipality certainly, if it wished to take on the job of trash collection itself, could take the trash wherever it wants to take it. And the municipality certainly can impose reasonable health and safety and environmental requirements with respect to the handling of trash. They also have substantial power under the zoning laws to determine whether and to what extent trash facilities will be permitted in the town. Now, in this particular case the town had initially denied petitioners' request for a permit to operate the recycling facility. That was appealed within the New York State courts. The courts ruled that the town had acted improperly in denying the permit, and directed the town to issue the permit, and the permit has now been issued.
Anthony M. Kennedy: In your view, if the city engaged in the hypothetical function that you were just discussing with Justice O'Connor, so that it owned the trash facility and collected it, could it enforce its monopoly by a criminal sanction? I mean like something like... approaching the Springfield ordinance.
Betty Jo Christian: I think we have to draw a distinction between a city that merely operates the transfer station itself as a municipal facility, and a city that also collects the trash.
Anthony M. Kennedy: Assume the latter.
Betty Jo Christian: If the city itself collects the trash, then it can take the trash wherever it wants. We don't think that the city could prohibit petitioner, who holds a license to operate a recycling facility, from transporting trash outside the State.
William H. Rehnquist: Well, what if New York law changed the provision that allowed the petitioner to have a license, and New York law said that individual municipalities can operate monopoly trash disposal, or organizations?
Betty Jo Christian: I think the issue there, Mr. Chief Justice, would be whether or not that is an appropriate subject for public utility regulation as a monopoly, and that would bring into play a totally different set of requirements. But that--
William H. Rehnquist: Well, that's not a constitutional question, is it?
Betty Jo Christian: --That would primarily be a question of State law. It conceivably, I would think, might involve some constitutional issues with respect to its effect on a facility such as petitioners', that previously held a license, but those would be entirely different issues and that's not this case.
Anthony M. Kennedy: Suppose in this case the city had advertised widely for bids for a transfer facility and awarded the transfer facility to an out-of-State company at an out-of-State site? So you have roughly this case, except the transfer facility is out of State, would you then have a constitutional argument?
Betty Jo Christian: I think that you would for this reason, because it would still prohibit the export of trash out of the State to any other point in interstate commerce, to any point other than the designated transfer facility.
Anthony M. Kennedy: Would you call that protectionism or simply the State exceeding its appropriate jurisdiction?
Betty Jo Christian: I think I would call that protectionism, because it... at least if, as in this case, the result is to confer a direct benefit on the town and its residents. In this case there is clearly a direct benefit to the town. At the time that the designated facility was constructed, the town entered into a take-or-pay agreement under which it guarantees the transfer facility a certain volume of trash. And if that guarantee is not met, then it has to pay for the lost revenues. So that every ton of out-of-town trash that petitioners can be forced to send to the designated facility, instead of directly out of State, results in a reduction of the town's liability under the guarantee of 81 a ton, and a direct benefit to the town's residents, a direct burden on interstate commerce. And I would think it would make no difference if the facility happened to be located across the line in another State, as long as that--
Antonin Scalia: Ms. Christian, I don't gather that the Commerce Clause permits a State to favor commerce with one State over commerce with other States.
Betty Jo Christian: --That would be our point exactly.
Antonin Scalia: It's just a matter of favoring your own. You also can't say New York favors New Jersey, and we don't favor shipping to other States, you can't do that.
Betty Jo Christian: I believe that this Court has struck down reciprocity requirements in the past that were limited in such a way that they are, in effect, prohibiting the export to any States other than the favored State.
Ruth Bader Ginsburg: Ms. Christian, did I understand your answer to Justice O'Connor was essentially that the town isn't doing enough to escape from this Commerce Clause check? That is if they handled the entire trash business you would have no complaint, but it's only because they don't haul the trash themselves that you can make this argument. Is that... do I have it right?
Betty Jo Christian: I don't think that's quite correct, Justice Ginsburg. Let me see if I can clarify it. Under the market participant doctrine, the town would be entitled to enter into the trash collection business as a participant in the market. And if it did that, it would be permitted, like any private business, to choose who it wanted to deal with. So in that circumstance, it could choose to take all of the trash that it collected to a private facility. Now if, in addition to collecting trash itself, it also permitted the operation of petitioners' recycling facility, which is licensed by both the town and the State to conduct a recycling operation, then we do not believe that the town could compel petitioners to make use of the designated transfer facility. I was only suggesting that if the town wished to take on the function of collecting trash itself, then under the market participant doctrine it could take the trash that it collected wherever it wants to take it. It can deal with whoever it wants to deal with. We believe that this case is essentially governed by the prior decisions of this Court in City of Philadelphia v. New Jersey and in Fort Gratiot Landfill v. Michigan. Those cases, of course, struck down laws barring the import of trash into a State. There are basically only two fundamental differences between those cases and this case. The first, of course, is that this involves a restriction on the export of trash; those cases involved restrictions on import. But the Court explicitly pointed out in City of Philadelphia that the Commerce Clause prohibits the movement of the... restrictions on the movement of goods into or out of a State. And second--
David H. Souter: Because there was a discrimination in those cases too, wasn't there?
Betty Jo Christian: --There was a different treatment in those cases of local and out-of-town trash. But in this case, and in the... as... this case is like the local processing cases or the export ban decisions previously decided by this Court, in which you have a... an overt restriction on the flow of interstate commerce itself. And as to cases in which you have an overt--
David H. Souter: So you're really... you're basically just making... I shouldn't say just. You're basically making a burden argument, period.
Betty Jo Christian: --I think this is more of a burden on interstate commerce, yes, that is correct, Justice Souter. And the burden on commerce is created, as this Court has held in the local processing decisions, by the requirement that it undergo local processing at the designated transfer facility before it can go out of State.
Antonin Scalia: You don't-- --And you don't think this is a discrimination case, then, huh? Is that what you're saying, you don't?
Betty Jo Christian: I think it may be hard to draw the line between--
Antonin Scalia: I'm sorry to hear that, because--
Betty Jo Christian: --Discrimination against and burden on interstate commerce. Certainly it is a burden on and--
Antonin Scalia: --I know... you've said it's a burden. Do you think it's discrimination against interstate commerce?
Betty Jo Christian: --I think it's probably a discrimination against petitioners' out-of-State customers who are required to undergo additional processing after their trash has already been processed and baled, at the designated facility. But the principal focus of the attack has been on the burden that this statute creates on the free flow of interstate commerce.
Anthony M. Kennedy: Well why isn't it a discrimination against exporters? Yeah.
Betty Jo Christian: I think it is a discrimination against exporters. I think the... the only sense in which you could say it is not a discrimination is that it discriminates against the export of trash by both local and out-of-town trash. But we would suggest that it discriminates against the exporters of trash and also is a burden on interstate commerce. Under either test, we believe it's invalid.
Speaker: Do you--
Betty Jo Christian: We think it falls within the category of laws that overtly block the flow of interstate commerce and therefore are virtually per se invalid.
David H. Souter: --You said a second ago as a factual matter something that I just didn't understand. You said that the... the... well, I may have you wrong. You said that those who export trash out of State must subject the trash to a further processing; is that what you said?
Betty Jo Christian: That's correct, Justice Souter, as applied--
David H. Souter: I don't understand that as a matter of fact. What does that consist of?
Betty Jo Christian: --Petitioners themselves process and bale the trash that is brought to them from outside the town. And when it's loaded onto trucks to leave petitioners' facility, it is then ready for transportation to landfills or to waste energy plants. Nothing further is needed, and yet under this statute it is required to go to the designated transfer facility for additional processing at the transfer facility.
David H. Souter: Okay. But the fact that your clients do bale their residue is not a requirement of the town ordinance. In other words, as I understand it, after they separate the recyclables that they take out from what is then going to be ultimately baled and exported, they could just bring that in bulk to the town transfer station, and it would be processed and baled there, wouldn't it, couldn't it?
Betty Jo Christian: I think two points. First of all, as a practical matter you're talking about 150 tons of trash a week. The way that the processing is handled, when it comes off the conveyor belts after the recyclables have been separated out, it goes into the processing machines where the processing and the baling occurs. So as a practical matter--
David H. Souter: But isn't that simply a function of the way your clients have set up their plant? Couldn't they set it up in such a way that they take out the recyclables and what is left gets dumped into a truck and the truck goes to the town transfer station where it's baled? Couldn't... couldn't that happen?
Betty Jo Christian: --I'm not sure that that would be consistent with the permit under which they operate by New York State, or by the town itself. Under the permit, for example, the handling of trash is strictly regulated. One requirement, for example, is that all nonrecyclable trash that goes through petitioners' facility must be moved out within 24 hours. So you can't have trash piling up waiting to be picked up.
David H. Souter: Uh-huh. In any case, I take it your case does not depend on... really on the answer to my question.
Betty Jo Christian: No, it does not, because even if under... under this Court's local processing decisions, even if there were no local... duplicate processing involved, it would still be an overt restriction on the flow of interstate commerce. And under that--
Ruth Bader Ginsburg: You made a point about the tipping charge, I think is what you called it.
Betty Jo Christian: --Yes.
Ruth Bader Ginsburg: That there was a considerable differential between what was--
Betty Jo Christian: The tipping fee charge by petitioners is 70 a ton. That charged by the transfer... designated facility is 81 a ton. And this, of course, to petitioners amounts to an added expense that they are required to bear with respect to the portion of their trash that constitutes nonrecyclables. That's an expense that would have to be added on and one which they could not bear. As a matter of fact, after the injunction in this case went into effect, petitioners were forced to temporarily shut down their operations.
Ruth Bader Ginsburg: --Is there an explanation of the extra 11 cents? Is it because eventually this plant will belong to the city, so that the--
Betty Jo Christian: There is no explanation other than the fact that the town approved the fee of 81 a ton. The town was required to approve the fee being charged by the designated facility. The petitioners set their own fee. That is the only explanation.
John Paul Stevens: --May I ask, to be sure I'm clear on one question... do I correctly understand, you do not challenge the scheme insofar as it gives the town a total monopoly of the processing and distribution of trash generated within the town?
Betty Jo Christian: In the lower courts, petitioners limited their Commerce Clause challenge to trash that originated outside the town, that is correct.
John Paul Stevens: So that as a factual matter, what you're really complaining about is in order to stay in business you'd have to move outside the city limits? Because then the ordinance wouldn't hurt you at all, if you were outside the city limits, would it?
Betty Jo Christian: If we were not in Clarkstown, then the ordinance would not apply, because it only applies within the confines of Clarkstown.
John Paul Stevens: It still would have an impact on you because you couldn't get any locally generated trash, but you don't object to that.
Betty Jo Christian: We did not raise a Commerce Clause challenge. Quite candidly, we believe that as a matter of constitutional analysis, the ordinance also violates the Commerce Clause with respect to locally generated trash. But--
John Paul Stevens: But that's not at issue.
Betty Jo Christian: --That is not at issue in this case, that's correct.
John Paul Stevens: The only thing that's as issue is whether you can be compelled to move outside the city limits to continue receiving trash from other locations. That's really what... I suppose that's what... and if you're going to stay in business, you just have to move your plant.
Betty Jo Christian: We are licensed by the town to operate the recycling facility in Clarkstown, that's correct.
John Paul Stevens: But your license doesn't do you any good if you can't get any trash.
Betty Jo Christian: Under this--
John Paul Stevens: You could get the trash if you... if you were located outside the... outside the city.
Betty Jo Christian: --We could... we could get the trash if we were willing to move our facility, but we submit that that is not an excuse to a violation of the Commerce Clause.
Speaker: But that's the real burden that effects you.
Betty Jo Christian: That would be a major burden on petitioners, since you cannot simply move a trash facility to--
John Paul Stevens: Is this the only facility that they operate?
Betty Jo Christian: --I believe this is the only facility that the Carbone Company itself operates. There are some related companies located in other States, but C & A Carbone, Inc., I believe operates only the one facility. Our basic point is that this is an overt discrimination against interstate commerce that could be justified only if the town could show that it is justified by a valid factor unrelated to economic protectionism, and that that factor can't adequate serve... be served by nondiscriminatory means. We believe that the out-of-town origin of the trash essentially eliminates most of the justifications that the town has sought to offer. As far as health and safety or environmental justifications are concerned, petitioners are subject to exactly the same requirements as the designated facility, and the town can certainly add more stringent requirements if it thinks that's necessary. There is no danger that this facility will be shut down in the absence of the flow control ordinance. The only danger is that the town might have to make good under its guarantee, and that is, by definition, economic protectionism.
Sandra Day O'Connor: One amicus brief has suggested that Congress, in other legislation, has basically directed this kind of a flow control ordinance.
Betty Jo Christian: We think that's clearly not correct, Justice O'Connor. The only reliance... the only citations that have been made have been to provisions of the RCRA statute, which refer not to flow control laws, but to long-term contracts. That they're not the same thing. And, as a matter of fact, we've suggested that one of the nondiscriminatory alternatives that might be pursued is long-term contracts. Now, as a matter of fact, Congress has pending before it right now several bills that would authorize flow control laws in specific limited circumstances. The only action taken thus far has been to ask the Environmental Protection Agency to supply Congress with its views by September of 1994. But clearly nothing that Congress has done to date satisfies the very stringent test for a clear expression of the intent of Congress to authorize action that would otherwise violate the Commerce Clause.
John Paul Stevens: But it is true that in... I think it's the House committee report on that statute, they did specifically refer to this sort of restriction. I know the text of the statute itself doesn't, but one of the briefs quotes a portion of a House report that does.
Betty Jo Christian: They're referring to these statutes. There was testimony that referred to these, but there is nothing in the statute itself--
John Paul Stevens: That's right.
Betty Jo Christian: --That refers to flow control laws. And Congress... this Court has made it clear that in order for Congress... in order for a statute to be interpreted as authorizing action that would otherwise violate the Commerce Clause, there must be a clear expression of intent, and this falls far short of that. We don't think that you need to reach the issue of nondiscriminatory alternatives at all, because there is nothing here other than economic protectionism. But simply to complete our point, it is apparent that even if there were some valid nonprotectionist purpose, those purposes could be met adequately by means that do not impose a burden on interstate commerce. To begin with, there is the simple expediency of the transfer station, the designated facility, competing in the marketplace for trash. And in this connection, I think it's important to observe that, in the absence of flow control laws, there's no apparent reason why the designated facility would not be able to compete successfully for trash in neighboring towns and States. The amicus brief of the State of New Jersey, for example, reveals that the tipping fees in New Jersey are substantially higher than the 81 charged by the designated facility. The reason that they are not permit... able to compete for those now is that under New Jersey law, which also has a flow control law, trash is permitted to leave New Jersey for purposes of recycling, of separating into recyclable and nonrecyclable components, but only on condition that the nonrecyclables are brought back to New Jersey. Now, petitioners, of course, are placed in the position, by this statute, of being literally unable to comply with the flow control laws of both New Jersey and Clarkstown, because Clarkstown directs that this identical trash must go to the designated transfer facility.
Antonin Scalia: Why didn't you challenge the New Jersey flow control laws?
Betty Jo Christian: I think that might be the next case.
Antonin Scalia: That's next. That's--
Betty Jo Christian: That may be the next case, Justice Scalia. [Laughter]
Antonin Scalia: --I must say, the spectacle of all States and municipalities wrestling for control over garbage is really quite wonderful. [Laughter]
Betty Jo Christian: I think that this simply reflects the changed economics of trash disposal, Justice Scalia. If the Court has no further questions, I'd like to reserve my remaining time for rebuttal.
William H. Rehnquist: Very well, Ms. Christian. Mr. Brashares.
William C. Brashares: Mr. Chief Justice, and may it please the Court: I think the central concept of economic protectionism means the allocation of economic benefits among private parties engaged in commerce on the basis of political geography. I think the essence of economic protectionism is discrimination. It means that those who are protected, those who vote within the political process, receive benefits, and those who are outside the political process, who do not vote, do not receive benefits. I would like to... I make that statement because I think that concept reconciles, certainly, the Philadelphia Chemical Waste, Fort Gratiot, it reconciles the processing cases, it reconciles the so-called hoarding cases. It has to do with the discrimination between the haves, the represented, and the have-nots. And that principle applied in this case answers two questions. First of all, since there is no discrimination, we are outside of the universe of economic protectionism.
Antonin Scalia: Mr. Brashares.
William C. Brashares: Yes.
Antonin Scalia: I don't understand what you're saying. If one has a generous and nongreedy motive, it's okay to discriminate against interstate commerce? I mean, if I am not getting anything personally out of... out of discriminating against interstate commerce, it is not protectionism and therefore it's okay.
William C. Brashares: Well, Your Honor, I think this is what the Maine against Taylor case is probably all about. I think there is certainly a very strong presumption that when a State or local law discriminates on the basis of geography, that there is a protectionist purpose. I think what the Court has said is that that is rebuttable if you can show that there is not... there is, in fact, a rational basis for the discrimination. And I think in Maine against Taylor, what the Court, in effect, did was to say, yes, there is a rational basis here. But I think the absence of benefit does not necessarily make the discrimination condoned. There--
Antonin Scalia: Well, but it has to be reasonable. It hasn't to be... the point is not that it's not protectionist, but that it is reasonable, right?
William C. Brashares: --Well--
Antonin Scalia: I mean, I don't know that our Commerce Clause law says that the only invalid restrictions upon interstate commerce are those that are imposed for protectionist purposes.
William C. Brashares: --Well, Your Honor, I think... I think I am putting together, and I think appropriately so, protectionism and discrimination on a geographic basis. What I am saying is that it is almost impossible, unthinkable to find a State or local law which allocates or regulates, on the basis of geography, those who are within the political process being treated one way and those outside another way, without there being some element of protectionism. I would grant that there could be cases where discrimination did not have those benefits, but I think... or allocation. But I think here, if I can get to this case, first of all, we do not have a law which has a discrimination. We do not have a law which classifies on the basis of geography, on the basis of whether you're in or outside of the political process. The law here, which counsel has referred to as an export ban... well, I suppose every law which regulates locally and has the effect of preventing a product from going out of the jurisdiction, in the same sense is an export ban. And in that same sense, export bans have never been held, as such, to be unconstitutional, and that's why this case is not the flip side, as counsel has put it, of the New Jersey case. The key there is discrimination. Is a product kept out because it is from outside? Is it kept in because it's from inside, and is it kept in, in the case of the processing and hoarding and other cases, for the benefit of local interests. And I'd like to turn to the question... if I can answer the question that Justice O'Connor asked the counsel, about is this city, is this town essentially capturing... that word has been used in the papers of the petitioners. Is this town attempting to capture waste that is moving in interstate commerce? Well, to suggest that there is a capturing conveys the idea that there is truck moving through town and the town is reaching out for its greedy purposes, capturing the truck and making them pay a fee to pass through. That is not at all what's going on. I need to remind... I need to state that the petitioners in this case have a permit to operate under New York law as a recycling center. They have a permit which states that 90 percent of the material they bring to their facility will be recyclable. In fact, in their permit application they say they are going to recycle cardboard. That means there would be 10 percent of that total material which would be discarded, worthless garbage, as we put it. Now, they bring that material into their facility in Clarkstown. As the... Mr. Carbone specifically testified, they put it on their floor, they separate it out into the recyclables which, as we know, they are permitted to sell and to ship in interstate commerce, and into the residue. And the issue in this case is that residue. Mr. Carbone also acknowledged, in an affidavit in lower court, that that material and the local material is all fungible. And he said, in fact... when he was concerned that the local town might have been mixing the out-of-town waste with the local waste, he said once it's commingled you can't tell which is which. Now, what the town is saying to Mr. Carbone... and to everyone else in the town, no matter what kind of business they operate, the town is saying if you have garbage that is generated, meaning discarded, in our town, this is the way it needs to be handled. We believe it's in the interests of this community... we've made the legislative judgment that this is the way it should be handled, just as the City of San Francisco and the City of Detroit did in 1905.
Antonin Scalia: But all of these are legislative judgments. I mean what you're saying is not for health reasons. There's no health reason why it has to be taken to this particular plant, is there?
William C. Brashares: No, there certain is, Your Honor.
Antonin Scalia: So somebody says I want to take it to another plant; it's cheaper, it's out of State. And you say, no, you can't do that, you must take it to this plant.
William C. Brashares: Well, Justice--
Antonin Scalia: Why is that not a discrimination against interstate commerce?
William C. Brashares: --Well, Justice Scalia, first of all, there is no classification which in any way separates interstate commerce from local commerce. As I said, the material which is regulated--
Antonin Scalia: Dean Milk establishes that that makes no difference. Just because you discriminate against other intrastate facilities does not enable you to discriminate against out-of-State facilities as well.
William C. Brashares: --Yes, but, Judge, there's no... there's no city line or county line discrimination involved here. There is no reference to needing to deal locally with local facilities, except the city. And there is the classification in this case which brings into discussion the question of monopolization. In, as I was going to say, the State of California... in the case of California Reduction, which this Court decided in 1905 right at the beginning of the Lockner era, and the Gardner case, considered exactly this situation. The Court considered whether there was a... not a rational basis, they went into a much more searching inquiry and determined that the town... the city had a legitimate, indeed a pressing interest in regulating in the area of waste disposal. That the method they had chosen was appropriate in that they had set up a designated facility, they had franchised it. Indeed, in San Francisco, it was for 50 years.
John Paul Stevens: Yes, but wasn't that just dealing with locally generated waste?
William C. Brashares: Well, Justice Stevens, the record in that case does not show that any waste was coming in from anywhere or was going out to anywhere. Interestingly, the district court in the... in that case did note that these were articles of commerce because they were claimed to be of value. This was material which was going out to feed livestock.
John Paul Stevens: Well, all I can suggest is if it doesn't tell us whether there was any nonlocally generated waste involved, the case really doesn't address the precise issue that your opponent is raising here.
William C. Brashares: Well, Your Honor, I think... I think it does address it in this sense. If we don't have economic protectionism, if we don't have a discrimination, which I think I would submit we do not have here, but still... but still the petitioners claim that the use of this power by the city is wrong under the Constitution, I think that analysis is really not a Commerce Clause analysis. And let me make this point in connection with California Reduction. If you took California Reduction on its Fourteenth Amendment grounds and just as the Court was about to decide that case the petitioners or the plaintiffs in that case came in and said we wish to amend, we have just discovered that garbage is moving across into Nevada to a farm. And I make that hypothetical only to suggest how would that change the analysis? The fact that waste is moving out of the State of California would not change the Fourteenth Amendment analysis.
John Paul Stevens: Well, it isn't the point that it's moving out. It's coming from a location that's not within the jurisdiction of the community. That's the... that's the thing, the most troublesome point to me, is the fact... let me give you a little hypothetical I keep thinking about. Supposing there's another processing plant right outside of town that will pay a tipping fee of 75. And so the... they've got three choices: 81 to your facility, 71 if these people stay in business, or 75 outside. Now, if your ordinance is in effect and you drive these people out of business, the business will shift from a 71 figure to a 75 figure, and doesn't that burden commerce?
William C. Brashares: Well--
John Paul Stevens: If you make the outside people pay more than they otherwise would pay.
William C. Brashares: --Well, Your Honor, no, I don't think it... I don't... well, whether it's a burden... certainly, everything that raises the costs of parties operating in commerce is arguably a burden. Whether it is a burden that this Court would take into account and balance it, in the Pike jargon.
John Paul Stevens: See, it can't be justified by your need to control and dispose... have a total monopoly of all locally generated waste.
William C. Brashares: No, absolutely, Your Honor, I believe it can be justified by the... the town's need. Now, Your Honor, I have... I have failed to... for lack of time and priorities here, to get into the point of why this overall legal framework of the city's has an environmental purpose. Now, we have, of course, spelled it out at great length in our brief. You have 15 amicus briefs here which get into it in great detail. But the point is that, as a matter of State law, this facility resulted from the fact that this town operated a landfill for many years, it was forced to close it down, and as part of that remedial action it was required to set up this transfer station in order to continue to have responsibility for local waste service.
David H. Souter: Well, we'll agree with you that you had to close down the landfill for environmental purposes, but it doesn't follow that you have an environmental purpose for this restriction if you can accomplish the same purpose by health and safety regulations, and I thought you said a moment ago that you could.
William C. Brashares: Well, Justice Souter, I would submit that those are relevant questions to raise in the context of whether there's a rational basis for the regulation. And I submit that they would be raised in the context of whether this town is actually constitutionally permitted to regulate in this matter. But I think that is a due process... substantive due process issue. I don't think it's a Commerce Clause issue.
David H. Souter: Well, it's not a Commerce Clause issue unless you've got a justification for your burden, and this is your only justification. You're in exactly the same boat if you've got to justify your burden, even though it's a nondiscriminatory burden.
William C. Brashares: Well, Your Honor, if it is a... if it is a regulation which has passed muster under the... under the Fourteenth Amendment, if it is deemed to have a rational basis, and the question then is does it, nevertheless, violate the Commerce Clause because of a burden that it imposes; I think when you get into weighing that burden against the legitimate purposes of the law, we're going back and reevaluating under the... under the rational basis.
David H. Souter: Well, I'm not sure we are. Every burden that passes due process muster because there is some rational basis is not necessarily going to pass a rational basis test for discrimination, is it?
William C. Brashares: I agree. That is the additional--
David H. Souter: And I thought... but I thought... I thought you were assuming just the opposite in what you said a moment ago.
William C. Brashares: --No, Your Honor, no. I agree completely with your statement. I think the next... the Commerce Clause brings to the table the discrimination analysis. A law which is otherwise passing muster under the Fourteenth Amendment as rationally based, we then move to the Commerce Clause and then we then consider whether it is discriminatory. Because then we have the aspect of regulating the unprotected interests, which is the essence of economic protectionism.
David H. Souter: Uh-hum.
William C. Brashares: We have the unprotected interests, and they are not participating in the political process that produced that regulation, and therefore they should not be bound by the substantive due process determination that the Court has made in that case. But when the same parties who are protected then claim the burden... which is this case, of course; Carbone is, of course, a local Clarkstown interest who is within the protected interest... then there's no basis for the claim that we should now go back and reevaluate the burden on commerce in comparison to the local benefits.
Antonin Scalia: I don't understand. You say because Carbone is in Clarksburg itself, this restriction can be imposed on Carbone. Does that mean you can--
William C. Brashares: Well, Your Honor--
Antonin Scalia: --You can prohibit your local citizens. Since they're part of the voting group, you can prohibit them from dealing in interstate commerce because... I don't understand what you're arguing.
William C. Brashares: --No, no, Your Honor, I'm not saying that you can prohibit them. What I'm saying is, though, if you are looking at the benefits and burdens of the law, you are not concerned about the burdens on the local people as much as you are... in a discrimination analysis you're concerned about the difference--
Antonin Scalia: Why not? That's what you're saying, that you can prevent local people from dealing in interstate commerce. I don't know--
William C. Brashares: --No, Your Honor. No, Your Honor, I'm not suggesting you can prevent local people from dealing in interstate commerce. Because, I mean, the question would be how... what kind of law would you pass to prevent local people from dealing in interstate commerce? It would have to be some kind of a discriminatory law that says these people can engage in commerce and these people can't. What the Clarkstown--
Antonin Scalia: --Every local person has to buy at the Clarksburg shopping mall. All local people have to take their trade there. They can't... they can't go elsewhere. Does that violate the Commerce Clause? It certainly does, and I fail to see why it makes much of a difference if you say all local people have to get their trash processed at this particular processing plant.
William C. Brashares: --Well, Your Honor, if I may, I think... I think the hypothetical of all people must buy at the local supermarket, I think that would never get to the Commerce Clause; that would fall under the Fourteenth Amendment. I think the question of requiring... this requiring local processing... see, that is what exactly... that is the label that the petitioners attempted to put on this case, and it just doesn't fit. The question is local processing is where a law states that before... as in the shrimp cases, the Foster-Fountain case, before a product may leave this jurisdiction it must be processed by local processors. The sorting is on the basis of local processors versus nonlocal processors. That's not what this law does. This law says the city is on one hand and all other participants are on the other hand, and this law says that this will be done by the city because we have legitimate police power reasons to do so. So--
David H. Souter: And one of the... I think one of our problems is we're still not sure what those police power reasons are. And I think you deflected the question by saying well that's really a Fourteenth Amendment question, but--
William C. Brashares: --No, no, Your Honor, I'm sorry, I didn't mean to--
David H. Souter: --We assume... we all accept that the city gets an economic benefit. What are the other police power reasons that could not have been realized by health and safety regs.
William C. Brashares: --Well, Your Honor, one of the reasons is the ability to monitor... monitor the waste. In this town, under State law there is a very elaborate requirement for recycling. There is mandatory local recycling. The town needs to have the ability to monitor whether the recycling is actually being done. There are concerns about traffic, as to how--
Anthony M. Kennedy: Wait a minute. Does New York require this town to monitor recycling in other New York facilities?
William C. Brashares: --Your Honor, it requires the town to have recycling laws and it... I don't believe it mandates a particular... it certainly doesn't mandate the full control.
Anthony M. Kennedy: Well, but it doesn't mandate... it doesn't mandate the town to go out and inspect other facilities other than its own, does it?
William C. Brashares: I'm sorry... does it mandate?
Anthony M. Kennedy: This ordinance, or New York law does not require Clarkstown to monitor what happens to its trash in facilities that are outside of its jurisdiction, does it?
William C. Brashares: Well, the permit granted by the State to the Clarkstown transfer station requires it to make certain that the facilities to which the waste goes from the transfer station are properly permitted and appropriate facilities. In that sense--
Anthony M. Kennedy: Yes, but that can... that can be handled by other facilities. So you don't need a local facility to accomplish the end that you're... that you're addressing.
William C. Brashares: --Well, Your Honor, the basic issue of is there an environmental justification for a city controlled, city monopolized transfer station, again I don't think... I think if that judgment is made under the Fourteenth Amendment that there is a rational basis for the city to use that method to advance a legitimate interest in the environment, the local environment, then I don't... I don't believe we go back and reevaluate that under the Commerce Clause. But, nevertheless, I don't mean to avoid that with legal argument, and not talk about why there should be this program. It's the same reason for the program in San Francisco in 1905 and Detroit in 1905. It's the same reason that cities since... I think it's 1658 in this country, in New Amsterdam, they had flow control laws. They wanted to make sure all the waste was taken care of in a particular way. It's the entire idea of control. If we control it, if we know where it's coming from, where it's going, if we have the ability to actually monopolize and have responsibility, then we will know that the waste is being taken care of. It's very--
Anthony M. Kennedy: Well, but our civilization has advanced to the point where garbage is valuable.
William C. Brashares: --Your Honor-- [Laughter] That is a major point that the petitioners make, but it's wrong. Some garbage is valuable if it's the part of the garbage that can be pulled out and sold for recycling. But make no mistake about it, the waste that is left over after the valuables are removed, as they are allowed to be removed and shipped out anywhere under the Clarkstown ordinance, that garbage is worth less today than it's ever been worth, because the cost of getting rid of it is higher than it's ever been.
Sandra Day O'Connor: Well, do you rest your argument in part, then, on the notion that what is left, and what is at issue here, has no value and is not an article of commerce?
William C. Brashares: Well, Justice O'Connor, I don't rest on that, because I think that the economic protectionism analysis that I've been through I think suffices for an affirmance of this case. But I do think that those points need to be considered, about whether it is an article of commerce. What I have suggested in the brief is that there are three doctrines which converge on that. The doctrine of basically is it in commerce when the local jurisdiction essentially has a separate transaction between the place where it's discarded and the place where it is... comes to the transfer station. The second, I think the quarantine cases have application here, because the idea of the quarantine cases... and it's a nondiscriminatory quarantine... is basically to say this is something we consider dangerous to the local community. Certainly, garbage is dangerous if it's not properly attended to, and therefore we are going to take it out of the process of commerce. And the third is from the Sporhase case, the argument that the Court has recognized, as it did in that case, that you will take into consideration what private rights the State has given to engage in a particular business such as the removal of groundwater. For those reasons, I do urge the Court to consider whether one approach to this case is to consider that the effect of the city's monopolizing this business, taking over in effect, requiring the waste to be treated in this way is, in effect, removing it or withholding it, if you would, from commerce.
John Paul Stevens: Can you help me with one factual matter? I want to be sure I understand you correctly. Is it correct that there would be no violation of the ordinance if the petitioner separated out the recyclable garbage and shipped that out of State and made money out of that, so long as it took the nonrecyclable and shipped it over to your facility and paid 81 a ton for that portion of it?
William C. Brashares: That's correct.
John Paul Stevens: And they say there's some practical reason why they can't do it, some 24-hour limit and so forth. Is it practically feasible for them to do it and just pay a little more for that portion of the business?
William C. Brashares: Your Honor, there's nothing in the record which suggests it's not practically feasible. Indeed--
John Paul Stevens: And as far as you're concerned, representing the town, that would be perfectly lawful if they were willing to do it?
William C. Brashares: --Yes, yes.
John Paul Stevens: And then do you draw the conclusion for that... for that reason, after the garbage is separated you are entitled to look at the nonrecyclable residue as locally generated because it was generated within the town?
William C. Brashares: That's right.
John Paul Stevens: That's your theory.
William C. Brashares: That's right. Your Honor, let me give an example of that. Under the Clarkstown law and under New York law, every business and every resident is now required to recycle. The city provides each resident, each business with bins in which they will put the different recyclables. And this is mandated. The city operates composting facilities. This is all part of the overall environmental plan that's involved here. It's not just a matter of a transfer station. The city picks up white goods, discarded refrigerators and so forth and so on. And the point is that each business... if you imagine an alley with three entrances and three cans. You know, one's a supermarket, one's a clothing store, and another is Carbone's recycling center, and each one of them is required to recycle and each one of them is required to put out the residues. And the city law says that when that happens, those residues will be handled in a particular way that we had determined to be environmentally appropriate. And that way is that it will be brought to a designated transfer station and that it will then be disposed of as we have arranged it. It is no difference. In fact, if the Court were to say that the town needs to differentiate this waste based upon the fact that it originated out of the town of Clarkstown, the Court would, in effect, be doing... requiring the city to do what it has struck down time and time again, as in Philadelphia. The Court would be requiring the town to impose a geographic classification. It would be a complete reversal of roles, even though it would be completely arbitrary and irrational. There's no difference. As Carbone himself said, it's fungible, it's commingled, and yet if the... if the argument were to be sustained that the town has to treat this waste differently, this would be, in effect, imposing a geographic classification--
Antonin Scalia: But why is this case any different from Dean Milk. It's just Dean Milk in reverse, it seems to me. Suppose that the town in Dean Milk had said that all milk sold in the city, for health reasons has to be pasteurized, just as you're saying for health reasons this trash has to be disposed of, and it will all be pasteurized in a city-owned or city-contracted-for plant just outside the city?
William C. Brashares: --Well, Your Honor, I think--
Antonin Scalia: Would that be allowed anymore than--
William C. Brashares: --If the law... I believe... I believe if the law said that the town has contracted for a plant--
Antonin Scalia: --To pasteurize milk.
William C. Brashares: --To pasteurize. And if there is some rational basis for that action, to carry out some legitimate public purpose, then--
Antonin Scalia: There is. Pasteurization certainly has a legitimate public purpose, right?
William C. Brashares: --Absolutely.
Antonin Scalia: And the city says we can be sure that the pasteurization is being done properly if it's being done in this plant which we will supervise.
William C. Brashares: That's right.
Antonin Scalia: So you think that that's the only problem there, was with Dean Milk, that the--
William C. Brashares: Well, Your Honor, I think the problem with Dean Milk--
Antonin Scalia: --City didn't require it to be pasteurized in its own plant.
William C. Brashares: --No, Your Honor, I think the problem with Dean Milk was that there was a sorting of private interest based upon the proximity to the city. In other words, that there was, in fact... those who were within that protected area were able to do this business, those private economic interests, those who were outside of that area were not permitted to do that business, so we had a model of economic protectionism. Now, the question in Dean Milk was was there some legitimate basis for that discrimination, and the answer was no, there was... so I don't think that's the same case.
Antonin Scalia: Mr. Brashares-- --No, they... they used the same kind of legitimate basis that you're trying to use. They said health interests, and we said, well, there are a lot of other ways to preserve those health interests without requiring that the milk be pasteurized within 5 miles of the city. And we said you have to, rather than discriminate against interstate commerce this way, use those other means.
William C. Brashares: Your Honor, if the Clarkstown law specified that all garbage had to be processed within 5 miles of Clarkstown, it would be unconstitutional.
Ruth Bader Ginsburg: Mr. Brashares, before you... your red light goes on, I wanted to be clear that, in bringing up what Justice O'Connor asked your opponent, you are not relying, as some of your amici have been, on congressional permission?
William C. Brashares: No, Your Honor. I think there is a... there's an argument there. I think to meet the unmistakably clear standard is difficult, and I think it's a much less compelling argument than the other arguments in this case. I would like to close, if I may... refer the Court to a case which we cited in our brief, an opinion by Judge Stapleton of the Third Circuit which... and if I don't finish this by the red light, I invite the Court to finish. In the... quote: In the absolute sense, virtually all State regulation burdens interstate commerce. Where the burden on out-of-State interests is no different from that placed on competing in-State interests, however, it is a burden on commerce rather than a burden on interstate commerce. In such cases, nothing in Commerce Clause jurisprudence entitles out-of-State interests to more strict judicial review than that to which the in-State interests are entitled, i.e. arbitrary and capricious review under the Due Process Clause and rational basis review under the Equal Protection Clause, neither of which involves the kind of social value balancing that Norfolk Southern urges us to undertake. And last, I'd like to urge the--
William H. Rehnquist: Well, what was... what was that quotation from?
William C. Brashares: --I'm sorry, Your Honor, that was from Norfolk Southern against Oberly, which is 822 Fed 2nd, page 388. The quote is on page 406. I apologize. It's referred to in our brief. And last, we did not cite, and I would like to urge the Court to consider in this case the Bryard against City of Alexandria case in terms of the effect of a local regulation on an interstate business. There the Court said... recognized, exactly as I urge it should recognize here, that the fact that an interstate business is involved does not remove the fact that the local activity that is being regulated is indistinguishable from the local activity of the same kind. In that case the Court recognized that it made no difference whether the solicitor coming to the door was local or was from interstate commerce. The fact was that the evil, or the situation that the local legislation was attempting to deal with and which the Court felt was rationally based under the Fourteenth Amendment, that was the exact same problem presented by the local solicitor and the out-of-State solicitor, and the State and the local community had no obligation to differentiate on the basis of its regulation. Thank you very much.
William H. Rehnquist: Thank you, Mr. Brashares. Mrs. Christian, you have 4 minutes remaining.
Betty Jo Christian: Mr. Chief Justice, and may it please the Court: Respondents, in response to a question, have, I believe, admitted that this law would be invalid if it required that trash must be processed within 5 miles of the city limits of Clarkstown. It seems to me that is dispositive of this case. There is no difference, from a constitutional standpoint, from a Commerce Clause standpoint, between such a requirement and the requirement that we have in this case, which requires that it must be processed at the designated transfer station. Now, beyond this--
Antonin Scalia: Because that transfer station is within 5 miles of Clarkstown?
Betty Jo Christian: --It is within Clarkstown.
John Paul Stevens: But may I ask a question?
Betty Jo Christian: I believe there was a question to respondents if it would be valid if it... if the law required processing within 5 miles of Clarkstown. I think this falls within that description.
John Paul Stevens: But is it correct that there... that the processing itself violates the ordinance? I thought it was what you do with the residue after the processing that preempts the... creates the problem.
Betty Jo Christian: It is not what... it is not the processing done by--
John Paul Stevens: You don't violate the ordinance just by processing it--
Betty Jo Christian: --No.
John Paul Stevens: --So long as you ship the residue over to their facility and pay them 81 a ton as a tipping fee.
Betty Jo Christian: That's right, and pay them 81 a ton, but for the processing.
John Paul Stevens: So you're not objecting to... you're not objecting to any restriction on process.
Betty Jo Christian: No. We're objecting to the restriction that requires what they require... regard as local processing at the designated transfer facility, for which they charge the 81 a ton.
John Paul Stevens: And that's--
Betty Jo Christian: It is--
John Paul Stevens: --That's the disposal of the... of the residue?
Betty Jo Christian: --We don't know what they would do when they receive it. It is the processing and the disposal of the residue. Now, respondents have taken the position--
John Paul Stevens: But am I correct that the 81 a ton doesn't have any impact at all on the portion of your business that deals with recyclable garbage?
Betty Jo Christian: --The ordinance itself permits the recyclables to be shipped directly outside of... out of State.
John Paul Stevens: So you can continue to do that as long as you pay the 81 on the residue?
Betty Jo Christian: That is correct. As long as we ship--
John Paul Stevens: They why isn't the residue locally generated waste if it produced by the recycling that takes place within the community?
Betty Jo Christian: --For one specific reason. We do not discard the revenue... the residue. Petitioners' business consists of the handling of trash. After they separate out the recyclables petitioners themselves process and bale the trash, and themselves ship it to landfills or waste energy plants which they pay to accept disposal of the nonrecyclables. So the fundamental difference is that petitioners never discard anything. They're in the business of handling the trash. Now, we believe that this statute, as a matter of constitutional jurisprudence, would be unconstitutional even with respect to locally discarded trash. But the fact is petitioners never discard trash at all. They handle it, they dispose of it out of State.
Sandra Day O'Connor: Well, you-- --Yes, but-- --You say the ordinance applies only to trash discarded in the city.
Betty Jo Christian: No, that is not our position. The trash plainly has been interpreted to apply to the nonrecyclable residue of petitioners' operation, which they do not discard in the city. Respondents--
Sandra Day O'Connor: It applies to discarded trash and you say we don't discard. Is that what you're... is that your point?
Betty Jo Christian: --Not quite, Justice O'Connor. We do not discard trash, but the ordinance nevertheless has been interpreted by the New York State courts as applying to our operation. A major distinction between trash handled by petitioners and the local trash to which respondents sought to draw an analogy is that we do not discard it. A correction of one factual point. Respondents also said that under the permit petitioners are limited to handling trash that is no more than 10 percent nonrecyclable. There is no such limit.
William H. Rehnquist: Thank you, Mrs. Christian.
Betty Jo Christian: Thank you.
William H. Rehnquist: The case is submitted.