Published in ABA State and Local Law News, vol 18, No. 2, 1995. By: Richard J. Brickwedde

On May 16, 1994, the U.S. Supreme Court ruled in C & A Carbone, Inc. v. Town of Clarkstown, 114 S. Ct. 1677, that laws which direct the flow of garbage to a particular facility within a municipality, precluding processing at other facilities, violate the Commerce Clause of the U.S. Constitution. The Court held such laws are unconstitutional.

In C & A Carbone, the U.S. Supreme Court decided the issue of whether a municipality can require a private waste hauler to bring its garbage to one particular transfer station before the garbage is shipped out of town. Before we move on to a discussion of the particulars of the C & A Carbone case, a quick review of the historical development of the Constitution might place the case in some perspective. The main impetus for the constitutional convention to modify the Articles of Confederation was that the thirteen original states were establishing trade barriers between and among themselves and with foreign countries. The tariffs and prohibitions between the states were impeding trade and commerce, and the economics of the several states were suffering as a result. The Constitution not only created a stronger central government than the one that existed under the Articles of Confederation, but it also introduced the Commerce Clause in Article I, Section 8, which gives Congress alone the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." The question that then arises is when something is in commerce.

In 1978, the Supreme Court determined that garbage was an article in interstate commerce within the meaning of the commerce Clause, and ruled that New Jersey could not prohibit the importation of garbage from the City of Philadelphia. Philadelphia v. New Jersey, 437, U.S. 617 (1978). (for those with any doubt of the status of waste as an article of commerce, the number one and number two exports from the Port of New York are scrap metal and wastepaper destined for recycling). In 1992, the Supreme Court extended the rule in holding that Michigan could not avoid the Commerce Clause by delegating to countries the ability to prohibit the importation of out-ofcounty garbage (and thus out-of-state garbage) into individual counties. Fort Gratiot Sanitary Landfill v. Michigan Department of Natural Resources, 112 S. Ct. 2019 (1992).

The Supreme Court's Commerce Clause analysis looks at town questions:

  1. Does the measure infringe on interstate commerce?
  2. Is the burden on interstate commerce "clearly excessive in relation to the putative local benefits"?
See Pike v. Bruce Church, Inc., 397, U.S. 137, 90 S. Ct. 894, 25 L. Ed. 2d 174 (1970). Since the court in Carbone found that Clarkstown's flow-control ordinance discriminated against interstate commerce, the majority found it was not necessary to reach the excessive burden question. In a concurring opinion, Justice O'Connor found it necessary to balance the burden and the benefits, and having done so, found that the economic burdens outweighed the local benefits.

Why did Clarkstown (and other municipalities in the U.S.) have a flow-control law? For years garbage was a low priority: out-of-sight, out-of-mind. Garbage was burned at the town or city dump. In the 1950's we began to lose our recycling ethic and became the throwaway society. At the Interstate Garbage: The Carbone Case and the Commerce Clause Published in ABA State and Local Law News, vol 18, No. 2, 1995. By: Richard J. Brickwedde Richard J. Brickwedde, Esq. Email: This email address is being protected from spambots. You need JavaScript enabled to view it. Page 2 same time, the amount of packaging used increased, multiplying the amount of garbage each of us generated. Garbage disposal was normally free, at least for residential customers.

Large areas of New York City and other cities are built on old garbage dumps. As we became more aware of the health impacts out-of-sight, out-of-mind, we started requiring engineered landfills to contain the pollution which resulted from garbage. We filled wetlands, but then discovered the value of those wetlands: flooding increased because the wetland flood control functions were lost. We also started controlling the air pollution which was generated by the burning of garbage.

All of these improvements increased the cost of garbage disposal. As the costs of handling our garbage increased, government looked at ways of paying for increasingly sophisticated garbage disposal methods. Tipping fees to dispose of garbage were instituted or increased. Recycling programs were instituted voluntarily as businesses and individuals began to realize that waste reduction saved money. Governments began to require recycling to reduce the quantity of garbage generated. A spot market in garbage disposal was created and government contracts for waste disposal ranged up over $100 per ton in some northeastern metropolitan areas. Long-term contracts in excess of $100 per ton for garbage disposal throughout the northeast became common.

Where government waste disposal without charge to garbage producers had destroyed or retarded both recycling and private waste disposal activities, governments began to charge for their services and private enterprise stepped back in and started to build new landfills, resource recovery facilities, and transfer stations to handle these materials. These private companies competed with government agencies to solve the same problem.

What has happened? As new facilities have been built, the cost of waste disposal has stabilized as capacity meets demand. Within the next year or two, garbage disposal and recycling capacity in the Northeast will substantially increase. Connecticut and New Jersey may now have surplus resource recovery capacity.

To sustain its own garbage initiatives, government sought, by the tipping fee, to guarantee the money necessary to support its new environmentally acceptable garbage recycling infrastructure. Government required individuals, businesses, and private haulers to bring garbage and/or recyclables to government designated facilities financed by bonds or government contracts. The waste or recycling materials supply for these facilities was guaranteed by laws requiring the flow of disposable articles to these facilities.

What do flow control laws mean to a community in the short run if no waste/recycling alternatives exist? Flow control does create or guarantee a source of money to build an infrastructure. That same infrastructure could, however, be funded by municipal taxes, rebates, tipping fees, by creating standards of waste/recycling handling which must be met, or by letting the market find the solutions. Waste disposal and recycling are pat of the infrastructure of our communities. If waste disposal/recycling costs more in community X than it does in community Y, Interstate Garbage: The Carbone Case and the Commerce Clause Published in ABA State and Local Law News, vol 18, No. 2, 1995. By: Richard J. Brickwedde Richard J. Brickwedde, Esq. Email: This email address is being protected from spambots. You need JavaScript enabled to view it. Page 3 doing business and creating jobs becomes more attractive in community Y.

Another argument made in favor of flow control is that with the market price for garbage disposal possibly declining in the next few years, flow control with its artificially high price will protect recycling. In short, without flow control, the argument goes, recycling will disappear. This argument underestimates the general public and business. As my Aunt Helen Manfredi said when Huntington, Long Island, imposed recycling, "I don't understand what the fuss is all about, we recycled during [World War II] and we can do it again."

In some communities, pay-by-the-bag waste disposal systems have effectively brought market forces to bear on the general public and those systems have worked effectively. But recycling by the general public is typically not driven by market forces--it is driven by education, so that people learn that recycling is good for them, their children, and grandchildren, supplemented by laws requiring recycling.

Businesses which historically have had to pay for waste disposal have been more driven by market forces to recycle, but those businesses, too, are now required by recycle by law. Should the recycling market start to falter because the price of waste disposal falls too low, government can recreate the differential between waste disposal and recycling by imposing a tax on disposal without a tax on recycling. In response to the argument of those who say such taxes also distort the market, the answer is that the market does not take into account externalities such as the loss of land committed to landfills and the avoided cost of the natural materials lost where reuse and recycling do not take place.

Congress has the power under the Commerce Clause of the Constitution to allow the states to impose flow control. That Congress may act, pushed by local and state governments, is not far fetched. In 1992, the Senate passed by a 96-4 vote an amendment which would have allowed states to bar the importation of waste into their states. That amendment died. The Environmental Protection Agency and more recently the House of Representatives have been holding hearings on flow control, gathering information on its pros and cons. Before it adjourned in 1994, Congress came within one vote of reenacting flow control.

Very few people like garbage, but interference with interstate commerce is something which should be looked at carefully. As Benjamin Franklin said, "No one ever suffered because of free trade." The United States has prospered for over two hundred years because it is the largest free trade market in the world. Whenever we tamper with free trade within our borders we take a risk that we will make ourselves less competitive in the world market and distort our internal flow of trade.

The Supreme Court has struck down flow control. The question now is: Where does the Congress, and where do we, go from here?