The Supreme Court/The Supreme Court.iso/mac/ascii/1993/93_70/93_70.zd

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SUPREME COURT OF THE UNITED STATES
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Nos. 93-70 and 93-108
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OREGON WASTE SYSTEMS, INC., et al., PETI-
TIONERS
93-70                      v.
DEPARTMENT OF ENVIRONMENTAL QUALITY OF
THE STATE OF OREGON et al.

COLUMBIA RESOURCE COMPANY, PETITIONER
93-108                     v.
DEPARTMENT OF ENVIRONMENTAL QUALITY OF
THE STATE OF OREGON
on writ of certiorari to the supreme court of
oregon
[April 4, 1994]


  Chief Justice Rehnquist, with whom Justice
Blackmun joins, dissenting.
  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 Commis-
sion 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).  The surcharge
works out to an increase of about $0.14 per week for the
typical out-of-state solid waste producer.  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 Manage-
ment, 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 Waste
Management, 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 Protec-
tion 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 environ-
mentally 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 ___ (Rehn-
quist, 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 sur-
charge.-  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 compre-
hensive 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 uncon-
trolled 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 commod-
ity 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 trans-
portation 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 less
populated 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 justifi-
able -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 compen-
sation); 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 compen-
sated 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 importa-
tion 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-deplet-
ing 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 Common-
wealth 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 sur-
charge 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 Philadel-
phia, 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 is
acting 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 nonresi-
dent elk hunting license fees to compensate the State for
conservation expenditures from taxes which only resi-
dents 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- under
the reasonableness standard of Northwest Airlines and
Evansville.
  The Court begrudgingly concedes that interstate com-
merce 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 Con-
gress, 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 South-
ern 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 to
serve as the low-cost dumping grounds for their neigh-
bors, 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.