i> "> i> "> <em></em>Oregon Waste Sys. v. Department of Envtl. Quality of Ore., 511 U.S. 93 (1994).

Oregon Waste Sys. v. Department of Envtl. Quality of Ore. (93-70), 511 U.S. 93 (1994).
[ Thomas ]
[ Rehnquist ]
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Nos. 93-70 and 93-108


on writ of certiorari to the supreme court of oregon

[April 4, 1994]

Chief Justice Rehnquist , with whom Justice Landfill space evaporates as solid waste accumulates. State and local governments expend financial and political capital to develop trash control systems that are efficient, lawful, and protective of the environment. The State of Oregon responsibly attempted to address its solid waste disposal problem through enactment of a comprehensive regulatory scheme for the management, disposal, reduction, and recycling of solid waste. For this Oregon should be applauded. The regulatory scheme included a fee charged on out of state solid waste. The Oregon Legislature directed the Commission to determine the appropriate surcharge "based on the costs . . . of disposing of solid waste generated out of state." Ore. Rev. Stat. §459.298 (1991). The Commission arrived at a surcharge of $2.25 per ton, compared to the $0.85 per ton charged on in state solid waste. Ore. Admin. Rule 340-97-110(3) (1993). [n.1] The surcharge works out to an increase of about $0.14 per week for the typical out of state solid waste producer. [n.2] Brief for Respondent 26-27, n. 16. This seems a small price to pay for the right to deposit your "garbage, rubbish, refuse . . .; sewage sludge, septic tank and cesspool pumpings or other sludge; . . . manure, . . . dead animals, [and] infectious waste" on your neighbors. Ore. Rev. Stat. §459.005(27) (1991).

Nearly 20 years ago, we held that a State cannot ban all out of state waste disposal in protecting themselves from hazardous or noxious materials brought across the State's borders. Philadelphia v. New Jersey, 437 U.S. 617 (1978). Two Terms ago in Chemical Waste Management, Inc. v. Hunt, 504 U. S. ___ (1992), in striking down the State of Alabama's $72 per ton fee on the disposal of out of state hazardous waste, the Court left open the possibility that such a fee could be valid if based on the costs of disposing of waste from other States. Id., at ___, n. 9 (slip op., at 10, n. 9). Once again, however, as in Philadelphia and Chemical WasteManagement, the Court further cranks the dormant Commerce Clause ratchet against the States by striking down such cost based fees, and by so doing ties the hands of the States in addressing the vexing national problem of solid waste disposal. I dissent.

Americans generated nearly 196 million tons of municipal solid waste in 1990, an increase from 128 million tons in 1975. See U. S. Environmental Protection Agency, Characterization of Municipal Solid Waste in the United States: 1992 Update, p. ES-3. Under current projections, Americans will produce 222 million tons of garbage in the year 2000. Ibid. Generating solid waste has never been a problem. Finding environmentally safe disposal sites has. By 1991, it was estimated that 45 percent of all solid waste landfills in the Nation had reached capacity. 56 Fed. Reg. 50980 (1991). Nevertheless, the Court stubbornly refuses to acknowledge that a clean and healthy environment, unthreatened by the improper disposal of solid waste, is the commodity really at issue in cases such as this, see, e.g., Chemical Waste Management, supra, at ___ (Rehnquist, C. J., dissenting), and Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U. S. ___, ___ (1992) (Rehnquist, C. J., dissenting).

Notwithstanding the identified shortage of landfill space in the Nation, the Court notes that it has "little difficulty," ante, at 11, concluding that the Oregon surcharge does not operate as a compensatory tax, designed to offset the loss of available landfill space in the State caused by the influx of out of state waste. The Court reaches this nonchalant conclusion because the State has failed "to identify a specific charge on intrastate commerce equal to or exceeding the surcharge." Ibid. (emphasis added). The Court's myopic focus on "differential fees" ignores the fact that in state producers of solid waste support the Oregon regulatory program through state income taxes and by paying,indirectly, the numerous fees imposed on landfill operators and the dumping fee on in state waste. Ore. Rev. Stat. §459.005 et seq. (1991).

We confirmed in Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982), that a State may enact a comprehensive regulatory system to address an environmental problem or a threat to natural resources within the confines of the Commerce Clause. In the context of threatened ground water depletion, we stated that "[o]bviously, a State that imposes severe withdrawal and use restrictions on its own citizens is not discriminating against interstate commerce when it seeks to prevent the uncontrolled transfer of water out of the State." Id., at 955-956. The same point could be made about a "clean and safe environment" in these cases: where a State imposes restrictions on the ability of its own citizens to dispose of solid waste in an effort to promote a "clean and safe environment," it is not discriminating against interstate commerce by preventing the uncontrolled transfer of out of state solid waste into the State.

The availability of safe landfill disposal sites in Oregon did not occur by chance. Through its regulatory scheme, the State of Oregon inspects landfill sites, monitors waste streams, promotes recycling, and imposes an $0.85 per ton disposal fee on in state waste, Ore. Rev. Stat. 459.005 et seq. (1991), all in an effort to curb the threat that its residents will harm the environment and create health and safety problems through excessive and unmonitored solid waste disposal. Depletion of a clean and safe environment will follow if Oregon must accept out of state waste at its landfills without a sharing of the disposal costs. The Commerce Clause does not require a State to abide this outcome where the "natural resource has some indicia of a good publicly produced and owned in which a State may favor its own citizens in times of shortage." Sporhase, supra, at 957. A shortage of available landfill space is upon us, 56 Fed.Reg. 50980 (1991), and with it comes the accompanying health and safety hazards flowing from the improper disposal of solid wastes. We have long acknowledged a distinction between economic protectionism and health and safety regulation promulgated by Oregon. See H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 533 (1949).

Far from neutralizing the economic situation for Oregon producers and out of state producers, the Court's analysis turns the Commerce Clause on its head. Oregon's neighbors will operate under a competitive advantage against their Oregon counterparts as they can now produce solid waste with reckless abandon and avoid paying concomitant state taxes to develop new landfills and clean up retired landfill sites. While I understand that solid waste is an article of commerce, Philadelphia, 437 U. S., at 622-623, it is not a commodity sold in the marketplace; rather it is disposed of at a cost to the State. Petitioners do not buy garbage to put in their landfills; solid waste producers pay petitioners to take their waste. Oregon solid waste producers do not compete with out of state businesses in the sale of solid waste. Thus, the fees do not alter the price of a product that is competing with other products for common purchasers. If anything, striking down the fees works to the disadvantage of Oregon businesses. They alone will have to pay the "nondisposal" fees associated with solid waste: landfill siting, landfill clean up, insurance to cover environmental accidents, and transportation improvement costs associated with out of state waste being shipped into the State. While we once recognized that " `the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies,' " id., at 621, n. 4, quoting 42 U.S.C. § 6901(a)(4) (1976 ed.), the Court today leaves States with only two options: become a dumper and ship as much waste as possible to a lesspopulated State, or become a dumpee, and stoically accept waste from more densely populated States.

The Court asserts that the State has not offered "any safety or health reasons" for discouraging the flow of solid waste into Oregon. Ante, at 8. I disagree. The availability of environmentally sound landfill space and the proper disposal of solid waste strike me as justifiable "safety or health" rationales for the fee. As far back as the turn of the century, the Court recognized that control over the collection and disposal of solid waste was a legitimate, nonarbitrary exercise of police powers to protect health and safety. See, e.g., California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306 (1905) (holding that exclusive privilege to one company to dispose of the garbage in the city and county of San Francisco was not void as taking the property of householders for public use without compensation); and Gardner v. Michigan, 199 U.S. 325 (1905) (holding that property rights of individuals must be subordinated to the general good and if the owner of garbage suffers any loss by its destruction he is compensated therefor in the common benefit secured by the regulation requiring that all garbage be destroyed).

In exercising its legitimate police powers in regulating solid waste disposal, Oregon is not "needlessly obstruct[ing] interstate trade or attempt[ing] to place itself in a position of economic isolation." Maine v. Taylor, 477 U.S. 131, 151 (1986) (internal quotation marks omitted) (upholding Maine's ban on the importation of live baitfish on the ground that it serves the legitimate governmental interest in protecting Maine's indigenous fish population from parasites prevalent in out of state baitfish). Quite to the contrary, Oregon accepts out of state waste as part of its comprehensive solid waste regulatory program and it "retains broad regulatory authority to protect the health and safety of its citizens and the integrity of its natural resources." Ibid. Moreover, Congress also has recognized taxes as an effective method of discouraging consumption of natural resources in other contexts. Cf. 26 U.S.C. §§ 4681 4682 (1988 ed., Supp. IV) (tax on ozone depleting chemicals); 26 U.S.C. § 4064 (1988 ed. and Supp. IV) (gas guzzler excise tax). Nothing should change the analysis when the natural resource--landfill space--was created or regulated by the State in the first place.

In its sweeping ruling, the Court makes no distinction between publicly and privately owned landfills. It rejects the argument that our "user fee" cases apply in this context since the landfills owned by the petitioners are private and our user fee analysis applies only to "charge[s] imposed by the State for the use of a state owned or state provided transportation or other facilities and services." Ante, at 10-11, n. 6, quoting Commonwealth Edison Co. v. Montana, 453 U.S. 609, 621 (1981). Rather than stopping there, however, the majority goes on to note that even if the Oregon surcharge could be viewed as a user fee, "it could not be sustained as such, given that it discriminates against interstate commerce." Ante, at 10-11, n. 6, quoting Evansville Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U.S. 707, 717 (1972). There is no need to make this dubious assertion. We specifically left unanswered the question whether a state or local government could regulate disposal of out of state solid waste at landfills owned by the government in Philadelphia, supra. at 627, n. 6.

We will undoubtedly be faced with this question directly in the future as roughly 80 percent of landfills receiving municipal solid waste in the United States are state or locally owned. U.S. Environmental Protection Agency, Resource Conservation and Recovery Act, Subtitle D Study: Phase 1 Report, table 4-2, p. 4-7 (Oct. 1986). We noted in South Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82, 93 (1984), "if a State isacting as a market participant, rather than as a market regulator, the dormant Commerce Clause places no limitation on its activities." See also Wyoming v. Oklahoma, 502 U. S. ___, ___ (1992). Similarly, if the State owned and operated a park or recreational facility, it would be allowed to charge differential fees for in state and out of state users of the resource. See, e.g., Baldwin v. Fish and Game Comm'n of Montana, 436 U.S. 371 (1978) (upholding Montana's higher nonresident elk hunting license fees to compensate the State for conservation expenditures from taxes which only residents pay). More recently we upheld such differential fees under a reasonableness standard in Northwest Airlines, Inc. v. County of Kent, 501 U. S. ___ (1994), despite the fact that the fees were not precisely tied to the costs of the services provided at the publicly owned airport. We relied on our Commerce Clause analysis from Evansville, supra. We stated in Evansville:

"At least so long as the toll is based on some fair approximation of use or privilege for use, . . . and is neither discriminatory against interstate commerce nor excessive in comparison with the governmental benefit conferred, it will pass constitutional muster, even though some other formula might reflect more exactly the relative use of the state facilities by individual users." Id., at 716-717.

I think that the $2.25 per ton fee that Oregon imposes on out of state waste works out to a similar "fair approximation" of the privilege to use its landfills. Even the Court concedes that our precedents do not demand anything beyond "substantia[l] equivalen[cy]" between the fees charged on in state and out of state waste. Ante, at 10 (internal quotation marks omitted). The $0.14 per week fee imposed on out of state waste producers qualifies as "substantially equivalent" underthe reasonableness standard of Northwest Airlines and Evansville.

The Court begrudgingly concedes that interstate commerce may be made to "pay its way," ante, at 9, yet finds Oregon's nominal surcharge to exact more than a "just share" from interstate commerce. Ibid. It escapes me how an additional $0.14 per week cost for the average solid waste producer constitutes anything but the type of "incidental effects on interstate commerce" endorsed by the majority. Id., at 5 (internal quotation marks omitted). Even handed regulations imposing such incidental effects on interstate commerce must be upheld unless "the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). If the majority finds $0.14 per week beyond the pale, one is left to wonder what the Court possibly could have contemplated when it stated:

"[I]n the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it." Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 350 (1977), quoting Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 767 (1945).

Surely $0.14 per week falls within even the most crabbed definition of "affect" or "regulate." Today the majority has rendered this "residuum of power" a nullity.

The State of Oregon is not prohibiting the export of solid waste from neighboring States; it is only asking that those neighbors pay their fair share for the use of Oregon landfill sites. I see nothing in the Commerce Clause that compels less densely populated States toserve as the low cost dumping grounds for their neighbors, suffering the attendant risks that solid waste landfills present. The Court, deciding otherwise, further limits the dwindling options available to States as they contend with the environmental, health, safety, and political challenges posed by the problem of solid waste disposal in modern society.

For the foregoing reasons, I respectfully dissent.


1 The surcharge is composed of the following identified costs:

$0.58--statewide activities for reducing environmental risks and improving solid waste management; $0.66--reimbursements to the state for tax credits and other public subsidies; $0.05--solid waste reduction activities related to the review and certification of waste reduction and recycling plans; $0.72--increased environmental liability; $0.20--lost disposal capacity; $0.03--publicly supported infrastructure; and $0.01--nuisance impacts from transportation. Pet. for Cert. in No. 93-108, p. 4.

2 The $2.25 per ton fee imposed on out of state waste exceeds the $0.85 per ton fee imposed on in state waste by $1.40 per ton. One ton equals 2,000 pounds. Assuming that the hypothetical nonresident generates 200 pounds of garbage per month (1/10 of a ton), the nonresident's garbage bill would increase by $0.14 per month.