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COMMERCE CLAUSE Art. II grants Congress the power to “regulate Commerce with foreign Nations, and among the several Stat

COMMERCE CLAUSE Art. II grants Congress the power to “regulate Commerce with foreign Nations, and among the several States …” Does that language limit state power? How?. Dormant Commerce Clause Purpose of clause Gibbons v. Ogden (1824) Two-step test

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COMMERCE CLAUSE Art. II grants Congress the power to “regulate Commerce with foreign Nations, and among the several Stat

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  1. COMMERCE CLAUSE Art. II grants Congress the power to “regulate Commerce with foreign Nations, and among the several States …” Does that language limit state power? How? • Dormant Commerce Clause • Purpose of clause • Gibbons v. Ogden (1824) • Two-step test • NIMBYism and the Dormant Commerce Clause

  2. Philadelphia v. New Jersey (1978) NJ statute prohibits importation of waste unless NJDEP determines importation will not “endanger public health, safety and welfare.” Court says garbage is an article of “commerce.” Do you agree? Even if interstate waste shipments are commerce, isn’t protection of public health, safety and welfare properly within the police powers of the states?

  3. Philadelphia v. New Jersey (1978) Step I: Does the statute discriminate on its face, or have a discriminatory purpose? Or is the purpose a legitimate one? • Disappearing landfill capacity: isn’t that a resource worth protecting? • Regardless of purpose, statute discriminates on its face

  4. Philadelphia v. New Jersey (1978) What about cases permitting states to regulate oil production from a common well in order to preserve the valued natural resource? What about quarantine cases, allowing states to exclude harmful products? What if New Jersey had excluded imports of only PCB waste, which is especially toxic?

  5. Philadelphia v. New Jersey (1978) REHNQUIST: Local governments are responsible for waste disposal. Finding space is difficult. Importation bans are reasonable and consistent with the quarantine cases.

  6. Chem. Waste Mgt. v. Hunt (1992) • Alabama statute imposed a cap on the amount of hazardous waste disposed in Alabama each year, and fees on hazardous waste disposal: • $25.60/ton for in-state waste • $72/ton for out-of-state waste • Are these provisions constitutional? • Emmelle facility • Does this mean that states may not impose differential taxes depending upon origin of waste?

  7. Oregon Waste Systems v. DEQ (1994) Oregon imposed extra surcharge on disposal of imported waste. Surcharge is calculated by the Env. Quality Commission. Set at $2.25/ton. Legislature imposed additional $0.85/ton on disposal of in- and out-of-state waste. Constitutional?

  8. Oregon Waste Systems v. DEQ (1994) “[E] ven if the surcharge merely recoups the costs of disposing of out-of-state waste in Oregon, the fact remains that the differential charge favors shippers of Oregon waste …. In making that geographic distinction, the surcharge patently discriminates against interstate commerce.” What is Oregon’s argument that the surcharge is nevertheless constitutional? • Least discriminatory alternative • Compensatory tax: rough equivalent

  9. Oregon Waste Systems v. DEQ (1994) “Although it is no mean feat to determine whether a challenged tax is a compensatory tax, we have little difficulty determining that the Oregon surcharge is not such a tax.” Why? What sort of tax might have sufficed here? • Rehnquist: • Landfill space is a resource like groundwater, properly reservable for in-state use. • In any event, the tax is compensatory.

  10. Ft. Gratiot Sanitary Landfill v. Michigan DNR (1992) Michigan law required counties to prepare waste management plans to ensure adequate disposal space for the future. Counties may refuse to dispose of out-of-county waste as part of this effort. The law discriminates against out-of-county Michigan waste and out-of-state waste equally. Constitutional? May a county-owned and operated landfill refuse to accept out of county waste? May a state-run landfill refuse out-of-state waste?

  11. C&A Carbone v. Town of Clarkstown (1994) Private haulers pick up MSW at curbside Recycling facility Transfer station Landfill Waste flow control ordinance specified this route—why? Why did Clarkstown build the transfer station?

  12. C&A Carbone v. Town of Clarkstown (1994) Does the flow control ordinance burden interstate commerce? Does it discriminate against out of state waste in any way? In what way does it burden commerce? Is the ordinance per se invalid, or does the court use the second step, balancing test in its Commerce Clause analysis? What does Justice O’Connor say about this? Could Clarkstown accomplish its goals another way? Federal law?

  13. Environmental Justice • Louisiana Energy Services case: • Cancer alley – EJ cases, Tulane clinic • EO 12898 – what rights does it give plaintiffs? • intent vs impact Council of Churches Study: causes and effects

  14. Town of Trashville -- zoning LULU Low-density residential High-density residential Industrial-commercial Wealthier, lower % minority population Poorer, higher % minority population mid-density residential

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