Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department of Nat. Resources – Oral Argument – March 30, 1992

Media for Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department of Nat. Resources

Audio Transcription for Opinion Announcement – June 01, 1992 in Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department of Nat. Resources

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William H. Rehnquist:

We’ll hear argument next in No. 91-636, Fort Gratiot Sanitary Landfill v. the Michigan Department of Natural Resources.

Mr. Finn, you may proceed.

Harold B. Finn, III:

Thank you, Mr. Chief Justice, and may it please the Court:

Petitioner owns and operates a private landfill in St. Clair County, Michigan.

In 1988 Michigan amended its Solid Waste Management Act–

William H. Rehnquist:

That’s up by Port Huron?

Harold B. Finn, III:

–Yes, sir.

By adopting waste importation restrictions, namely section 13(a) and subsection (2) of section 30 of the act, which prohibit, in the case of St. Clair County, the importation into the country of municipal solid waste generated out-of-county or out-of-state.

On its face this case presents the question of whether these waste importation restrictions by prohibiting the importation of out-of-state waste into petitioner’s landfill impermissibly discriminate against out-of-state commerce by, because in-county municipal waste is subject to no such constraint.

Byron R. White:

I take it this waste is not of the kind that we were talking about in the last case?

Harold B. Finn, III:

That’s correct, sir.

This is plain garbage.

This is not hazardous waste.

This is not lowlevel radioactive waste.

William H. Rehnquist:

And garbage is your element of commerce here, I guess?

Harold B. Finn, III:

Yes, sir.

Sandra Day O’Connor:

Is the waste, could it ever be said to be hazardous to transport it?

Harold B. Finn, III:

Under the regulations that have been promulgated by the State of Michigan, the transportation of municipal solid waste if it is moisture laden must be transported in trucks that are sealed and not capable of leaking.

In the case of all other municipal solid waste they must be covered and carried in a manner that does not create a nuisance.

The same would be true under the new regulations that are–

Sandra Day O’Connor:

Well, would that aspect of it possibly bring it in the quarantine exception?

Harold B. Finn, III:

–In this case, Justice O’Connor, no one has suggested that the quarantine cases are applicable.

In the first place there is nothing, in the first place the regulations that have been promulgated by Michigan make it clear that there is no risk of disease or pestilence coming into the State, and the new regulations that have been promulgated by the Federal EPA make it clear that there need not be any risk of disease or pestilence.

Indeed Michigan allows out-of-state waste to come into Michigan now, albeit to a minor extent, from neighboring states.

So I don’t think the quarantine cases are applicable here, nor has Michigan suggested that they are applicable.

One of the amicus has suggested that the quarantine cases may be applicable, and it may well be.

In some states the regulations and laws are so lax as to create risks, but that’s not true in Michigan.

There is an even more important question, however, at stake in this case, and that’s whether or not this Court is going to uphold the novel new constitutional principle that was relied upon by the Sixth Circuit in upholding the waste importation restrictions.

That new constitutional principle is that state legislation which excludes foreign commerce from local areas within the State does not discriminate against interstate commerce so long as like commerce from elsewhere in the State is subject to the same embargo.

Acceptance of that new principle would have extraordinary consequences.

Harold B. Finn, III:

By way of illustration, if this principle were adopted by this Court a district comprised of the southern, the counties of Southern California could impose an embargo upon or a discriminatory tariff upon goods coming from Arizona so long as like commerce coming from Northern California were subject to the same constraint or the same discriminatory tariff.

That principle simply cannot be allowed to stand by this Court.

It is hopelessly inconsistent with the prior decisions of this Court, it belies the basic principles that underlie the Commerce Clause, and it would eventually result in the evisceration of the negative aspects–

Sandra Day O’Connor:

Mr. Finn, I guess the Sixth Circuit purported to apply the Pike v. Bruce Church test in this case?

Harold B. Finn, III:

–Yes, it did, Justice Scalia… Justice O’Connor.

Sandra Day O’Connor:

And do you make the argument that it was, that was the wrong test to apply, or that it was the correct test to apply but they applied it wrong?

What is it you’re arguing?

Harold B. Finn, III:

There is no question in our mind that the Sixth Circuit applied the incorrect test.

In our judgment once discrimination exists, this Court’s decision, decisions in the past have made it perfectly clear that the strict scrutiny test should apply, and it doesn’t make any difference, as the State, the respondents, seem to suggest, that it’s local discrimination versus statewide discrimination.

Somehow the Sixth Circuit made that distinction.

William H. Rehnquist:

Well, what’s the matter with it?

You attack it verbally, but will you explain why you think it isn’t consistent with our cases?

Harold B. Finn, III:

Well, in Brimmer v. Rebman, which was decided in 1891, in Dean Milk v. the City of Madison in 1954, and in Polar Ice Cream and Creamery Co., this Court has held that it’s immaterial for purposes of determining whether there is discrimination against interstate commerce that in-state commerce is subject to the same constraint.

And that, those decisions in Brimmer v. Rebman, Dean Milk, and Polar Ice Cream and Creamery Co., they’re consistent with and they’re part of a line of nine cases in which this Court has over the past 119 years consistently and repeatedly held that embargoes against foreign commerce, be they statewide or local, overt or disguised, violate the Commerce Clause.

This case does not present a new concept.

Antonin Scalia:

Mr. Finn, isn’t it really a little unrealistic to say that what we’re dealing with here is an article of commerce called garbage?

Isn’t the article of commerce landfill space?

Isn’t that what’s being bought and sold?

Harold B. Finn, III:

Well, in this case it’s the question of–

Antonin Scalia:

Nobody wants garbage.

What they want is landfill space.

And why should, why isn’t that the correct way to look at the case?

Harold B. Finn, III:

–The, there’s no question but that the landfill is itself engaged in commerce.

What the landfill wishes to do and what the people who wish to have waste brought to the landfill wish to do is to engage in the interstate commerce of bringing municipal solid waste into that landfill.

Antonin Scalia:

But the landfill space is just in St. Clair County, right?

Harold B. Finn, III:

That’s correct, Justice Scalia.

Antonin Scalia:

Now I suppose, I suppose St. Clair County could impose an enormous tax upon any garbage brought into this landfill space.

Harold B. Finn, III:

That’s, I agree with that, Justice Scalia.

Antonin Scalia:

It would have the same result, wouldn’t it?

Harold B. Finn, III:

It would not be discriminatory.

Harold B. Finn, III:

That’s the infirmity in this statute.

Antonin Scalia:

Yes, but of course all the tax goes into St. Clair County’s own coffers, so as a matter of fact it would not deter St. Clair County from using the landfill.

It would just deter everybody else from using the landfill.

That’s precisely the same result.

Harold B. Finn, III:

The discrimination is made against the citizens and businesses of other states in this instance who are prohibited from bringing municipal solid waste into St. Clair County, whereas the citizens and businesses of St. Clair County are free to put their waste into the landfill without constraint.

Antonin Scalia:

Well–

Harold B. Finn, III:

That discrimination is what’s impermissible.

Antonin Scalia:

–So all you’re making St. Clair County do is to reduce its business taxes and impose an enormous tax on taking stuff to the landfill.

Harold B. Finn, III:

If they choose to do that, that would be… I can’t address whether that would be permissible or not.

It would not violate my view of what I am arguing here today.

Sandra Day O’Connor:

But to the extent that the county tried to do that and imposed the tax on its own citizens as well, I imagine it wouldn’t sit too well to be told that the county was going to recoup some of the money.

Harold B. Finn, III:

I think that is correct.

I think that’s why the county is objecting to–

Sandra Day O’Connor:

People who live there and who vote there still have to get rid of their garbage, don’t they?

Harold B. Finn, III:

–Yes, they do, Justice O’Connor.

Sandra Day O’Connor:

And they want to do it at reasonable rates, I suppose.

Harold B. Finn, III:

Well, their alternative is not–

Sandra Day O’Connor:

Let me ask you this.

Do you think that solid waste has today a commercial value in part?

Are there things included in solid waste today that make it potentially a valuable item?

Harold B. Finn, III:

–To some extent municipal solid waste as it starts from our respective homes or our respective businesses contains materials that can be removed from the solid waste, such as recyclables, plastics, aluminum, or the like.

I, when the municipal solid waste is brought to the landfill it is not, we are not currently processing municipal solid waste.

I think the problem with suggesting that municipal solid waste is not an article of commerce, which has not been suggested in the briefs but is implicit in the questions, is where, what is the neutral principle that would apply: Is it that when you reach the end of usefulness it’s no longer articles of commerce?

That… first of all, the neutral principle would likewise apply to the dead, dead human beings, and that would make the funeral home business or the cemetery business not being engaged in commerce.

In the same manner–

William H. Rehnquist:

I dare say lots of people would think they weren’t.

[Laughter]

Harold B. Finn, III:

–I think it’s clear that Congress would think that it had the power to regulate the funeral home industry or the cemetery industry because it was regulating a matter of interstate commerce.

Also, to suggest that this article of commerce is not, rather that municipal solid waste is not an article of commerce is to not, to deny reality.

This is a multi-billion dollar business, and to suggest that it’s not an article of commerce is to ignore reality.

Sandra Day O’Connor:

Mr. Finn, could Michigan put together a scheme whereby the counties could decide that they wouldn’t allow any private landfills, period, and that all waste disposal would be at county-owned sites?

Harold B. Finn, III:

Other than the problem of expropriating the existing privately-owned landfills, I think the county would have the power, the state would have the power to prohibit the operation of private landfills.

Sandra Day O’Connor:

And if they did that and then said no out-of-state waste, I guess you wouldn’t win.

Harold B. Finn, III:

Well, I wouldn’t have a private landfill in that case.

Sandra Day O’Connor:

Right.

Harold B. Finn, III:

But I don’t, we don’t question but that the state can, through the market participant doctrine, restrict out-of-state waste from coming into the state, into the state-owned or county-owned landfills.

William H. Rehnquist:

Mr. Finn, I think some of our cases have said that when the motive of the state appears to be protectionist, parochial favoring local industry, then we’re going to give it strict scrutiny.

What is the local industry that you think is being favored here?

Harold B. Finn, III:

The citizens and businesses of the county, of St. Clair County, have an opportunity to put their municipal solid waste in petitioner’s private landfill whereas citizens and businesses out-of-county don’t have that opportunity.

William H. Rehnquist:

That is the, that is the protectionist aspect?

Harold B. Finn, III:

Well, I think it’s a broader–

William H. Rehnquist:

It’s certainly a good deal different than a lot of cases that we’ve–

Harold B. Finn, III:

–It is true that this Court has talked repeatedly in terms of economic protectionism, but it has to be recognized that virtually all of the nine embargo cases that this Court has struck down over the past 119 years involved the argument on the part of the state that their statute was justified by some legitimate purpose.

The reason the statutes were struck down is that the embargo, that is the means of achieving that purpose was impermissible.

It was, that was what was unconstitutional.

William H. Rehnquist:

–But the Madison, the Dean Milk case was a case where the, I think the City of Madison was trying to assure that a particular local processing plant got the business and not somewhere else, wasn’t it?

Harold B. Finn, III:

Well, it was also cited, the state, or rather the city contended that they needed to have the local requirement for processing of milk in order to be able to adequately inspect.

William H. Rehnquist:

Yes.

Harold B. Finn, III:

But the Court did not buy that.

William H. Rehnquist:

But you… I don’t see the same protectionist element in this case as there was in the Dean Milk case.

Harold B. Finn, III:

Well, I–

William H. Rehnquist:

They’re not trying to protect a local business.

Harold B. Finn, III:

–I think what they are trying to protect is the need for local expenditures and to protect citizens from competition.

Let me illustrate, if I may.

It is clear from the briefs of the respondents and the amici that landfills are not natural resources.

They are engineered and manufactured facilities which can be sited anywhere, depending solely on cost.

In other words, if that, that being the case, these statutes are designed to restrict the free flow of municipal solid waste into the state and to reserve private landfills so as to enable the state and the county to avoid the costs of creating new landfills, and also to avoid the competition.

What they’re trying to do is to take over, in effect, the private landfill of petitioner and make it available for the state use only.

William H. Rehnquist:

So the New Jerseyans end up shipping their garbage to St. Clair County, and St. Clair County ends up shipping its garbage to South Dakota?

I mean, when the spaces are all gone in St. Clair County.

Harold B. Finn, III:

St. Clair… it’s just a question of creating space.

St. Clair County or the State of Michigan or any of the states can create the space.

It’s not a natural resource.

It is simply erecting and manufacturing, in effect, a ship on the land that is safe for the disposal of municipal solid waste.

So it’s not a question of running out of space.

It’s a question of incurring the cost to create the space, and that’s what the State doesn’t want to do.

And in fact they want to protect themselves from having to incur that cost in the future by preventing citizens from other states from bringing their municipal solid waste into St. Clair County.

Antonin Scalia:

Well, it’s not just–

Harold B. Finn, III:

I think that’s the essence of economic protectionism.

Antonin Scalia:

–I assume that it also means that the, that what you can charge the state today, or what any existing landfill can charge the state or in-state citizens or in-county citizens has to be lower, doesn’t it?

I mean, if you could accept material from out-of-state, presumably the price would go up, wouldn’t it?

Harold B. Finn, III:

There is no question about that, Justice Scalia.

Antonin Scalia:

Well, that sounds like protectionism to me.

Harold B. Finn, III:

That’s why we’re here.

We are unable to accept the higher prices that are offered by out-of-state citizens and businesses.

Mr. Chief Justice, I should also point out that it’s not just a question of whether or not there is or is not economic protectionism.

In the case of Maine v. Taylor the Court found that the embargo was permissible because the bait fish were likely to be infected with parasites, but it nonetheless subjected the Maine statute to the strict scrutiny test.

The twofold test being one, whether the statute serves a legitimate purpose, and two, whether there is available a non-discriminatory means.

And in the case of the Maine bait fish statute the statute passed that test.

I, we submit that in this case, this legislation, the waste importations do not pass that strict scrutiny test.

William H. Rehnquist:

Because there is no threat from the garbage.

Harold B. Finn, III:

I don’t think that the quarantine cases present any threat.

They haven’t claimed that they present any threat, and they would be hard pressed to do so since they take it from out-of-state as it is, albeit in limited quantities.

I’d like to return for a moment to the problem of local regional discrimination.

The problem as a matter of constitutional principle about regional discrimination is that it puts citizens of the region, of the preferred region, on a different footing from citizens of all the states.

They will therefore tend, as James Madison said about Connecticut’s discriminatory tariff of 1784, to beget retaliating regulations not less expensive and vexatious in themselves than they are destructive of the general harmony.

These regional discriminations, these regional embargoes will enable the state to place itself in a position of economic isolation and ultimately will lead to an evasion of the strictures of the Commerce Clause.

That’s exactly what Pennsylvania proposes to do with their new legislation.

The governor has proposed to divide Pennsylvania up into four quadrants called waste sheds.

Each waste shed will be allowed to accept municipal solid waste only from within the waste shed.

Harold B. Finn, III:

The result will be that every citizen and business in Pennsylvania will have a place to put his or her municipal solid waste, but no one from outside Pennsylvania will be able to bring municipal solid waste into Pennsylvania.

David H. Souter:

What if the county in this case had combined its embargo with a temporal limitation, let’s say 5 years or 10 years, and had justified that, assuming it could do so, on the ground that it takes that long to engage in responsible planning and construction of further facilities, so that it justified it essentially on the basis of a planning purpose, expressly and overtly?

Could they do that?

Harold B. Finn, III:

I don’t think that this Court has ever upheld discriminatory legislation which discriminates against foreign articles of commerce or against foreign citizens and businesses on the basis that it was a temporary planning measure.

There are some quarantine cases–

David H. Souter:

No, but I mean in the classic sort of case.

That’s not going to apply to the question whether or not we ought to let in foreign milk.

I mean it’s either going to be consumed or not consumed by the market.

That’s going to take care of it.

But in this case there, I assume there is a legitimate argument to be made that you can’t in effect create a landfill overnight, and that it is at least reasonable for people to take measures to prevent having to send their garbage to South Dakota.

Would that (a) take it out of the category of heightened scrutiny, and (b) would it be a reasonable basis on a balancing test for allowing a, at least a temporal limitation?

Harold B. Finn, III:

–Well, I don’t think it would take it out of the strict scrutiny test because the strict scrutiny test is applied whenever discrimination is found.

It may be that you could subject it to the strict scrutiny test and on your hypothetical conclude that the purpose was legitimate and that there was no available alternative.

A finite period of time to decide how you’re going to handle this might well fall under that category.

This case, of course, does not fit into that category.

This is an, a forever ban.

I don’t think the Pike test would ever be applicable in the hypothetical you have described, but that doesn’t mean that it couldn’t pass scrutiny.

Apparently recognizing that this Court is likely to hold that the waste importation restrictions discriminate against interstate commerce, the respondents and the amici have suggested a number of novel theories upon which they would have this Court distinguish City of Philadelphia v. New Jersey or even overrule it, and they would ask this Court to hold that the waste importation restrictions do not violate or indeed are not even subject to the Commerce Clause.

We have attempted to address these novel arguments in our reply brief and to anticipate them to some extend in our brief on the merits, and I do not propose to do so here in oral argument.

I do think it appropriate to spend a moment addressing the State’s apparent principle claim that Sporhase v. Nebraska justifies a different result.

Sporhase held that the, a state statute, the portion of a state statute which prohibited the exportation of water across the state line was unconstitutional.

So rather than help the State in this case, Sporhase dictates the conclusion that a state statute which prohibits the importation of municipal solid waste across state lines violates the Commerce Clause.

Also, to the extent that Sporhase condoned a discriminatory requirement, that exportation of water be allowed only with a permit, it’s irrelevant to this case.

In the first place a discriminatory permit is far less onerous as a constitutional matter than an outright discriminatory embargo.

In the second place, there is no permit available here.

There is no means by permit that one could obtain the right to bring municipal solid waste into the county.

In addition, in Sporhase it doesn’t even appear that the permit requirement was discriminatory.

The in-state use was subject to extraordinary constraints.

Indeed a landowner in the district that was involved in Sporhase couldn’t even sell his water.

And finally, Sporhase, it has to be recognized, involved a special scarce natural resource, water, which has always been subject to special consideration in this Court, whereas here we’re dealing with an engineered and manufactured facility which is capable of being sited anywhere, depending solely on cost.

William H. Rehnquist:

Well, not anywhere in the strictly soil sense.

You can’t have a landfill just anywhere you choose, can you?

It has to be a particular kind of soil, and that sort of thing.

It has to be sited away from certain other things.

Harold B. Finn, III:

Well, I think it’s clear from the briefs of the respondents and the amici that that’s no longer necessary.

You now are required, indeed if one looks at the regulations that have been promulgated by the EPA, to have liners in all new landfills that will avoid the problem of having to choose particular soil.

You don’t want to put it on an earthquake zone.

I certainly agree with that.

But it is, as I have described, more akin to building a ship on top of the land.

This Court has never before upheld a discriminatory embargo except in the case of a necessary quarantine.

A quarantine, the quarantine cases aren’t applicable here, and there would be no principle basis for the Court to uphold these discriminatory embargoes.

If there are no further questions I’d like to reserve the remainder of my time.

William H. Rehnquist:

Very well.

Mr. Casey.

Thomas L. Casey:

Mr. Chief Justice, and may it please the Court:

In 1905 in the California Reduction Company decision this Court said many of the questions involved in municipal sanitation have proved to be difficult of solution.

87 years later the problems are still with us, and they are still difficult of solution.

Michigan has attempted to address these difficult problems by imposing a comprehensive, mandatory, long range planning and long range management process for solid waste which is to be disposed of in each county in Michigan.

Petitioner’s claim is that the Commerce Clause exempts it from even participating in the planning process.

Petitioner asks this Court to extend its decision in Philadelphia v. New Jersey and announce a rule which would require every county in Michigan, presumably every county across the Nation, to absorb as much out-of-county waste as a landfill operator wanted to bring in, with no ability for state or local governments to have any control over volumes and regardless of the local circumstances or the local consequences.

Byron R. White:

How… I take it that the State allows a county, however, to take out-of-state waste?

Thomas L. Casey:

Yes.

Byron R. White:

And how many counties have in their plan permission to do that?

Thomas L. Casey:

Each county creates a plan.

There are 83 counties.

I believe eight of them currently permit importation of out-of-state waste.

Byron R. White:

And the, but none of the rest of them?

Thomas L. Casey:

The others do not currently contain a specific provision permitting out-of-state waste to be brought in.

Byron R. White:

And unless it does then the state law forbids the importation?

Thomas L. Casey:

That’s correct.

Byron R. White:

So it’s a state law that puts the teeth in this arrangement?

Thomas L. Casey:

A state law requires affirmative action by each county before out-of-state waste can be brought in.

Sandra Day O’Connor:

And approval by the State.

Thomas L. Casey:

Correct.

Sandra Day O’Connor:

Yes.

Thomas L. Casey:

There is a comprehensive process for developing the plan with input from the local counties, local planning agencies, votes by the municipalities within a county, regional approval, and ultimately approval by the director of the Department of Natural Resources.

Sandra Day O’Connor:

Mr. Casey, does the State take the position that the transportation of solid waste presents significant health or safety dangers?

Thomas L. Casey:

Yes, it can.

The solid–

Sandra Day O’Connor:

Is that a position taken by the State here to justify its position?

Thomas L. Casey:

–We are urging this Court… this case presents the opportunity for the Court to reexamine the Philadelphia v. New Jersey decision.

In that case the Court found that solid waste was an article of commerce and found that a specific New Jersey statute violated the Commerce Clause.

As the dissent in that case indicates, and as we have argued in our brief and in the amicus briefs, there are unique characteristics of solid waste which present strong arguments why solid waste should not be considered within the Commerce Clause.

If the Court–

Sandra Day O’Connor:

Well, if we disagree with that and leave the precedents on the books, then where are you?

Thomas L. Casey:

–We believe that the judgments below can be affirmed without retreating whatsoever from Philadelphia v. New Jersey.

We do believe, however, that there are unique aspects of the solid waste problem which should urge this Court to exert great deference in reviewing the state statute.

I’d like to talk about those in a moment, but I would like to mention at the outset the very narrow and limited posture of this case before this Court today.

In its original complaint in the district court petitioner challenged the statute on its face.

Count 2 challenged the statute as applied by St. Clair County, and Count 3 alleged due process violations.

In this Court, however, they have abandoned everything except the facial challenge.

They have abandoned their claim that St. Clair County’s refusal to amend their plan was unconstitutional.

So the sole challenge in this Court is whether this comprehensive statewide statute is unconstitutional merely because it permits each county to consider local circumstances in deciding whether to permit or to prohibit out-of-state waste.

Under petitioner’s view in this facial challenge a county can never prohibit out-of-state waste regardless of local circumstances or local consequences.

Our position is that a state may implement a planning process, as we have done here, which permits counties to take into consideration of local circumstances.

Byron R. White:

Well, do you think just because the State operates through the county that it’s off the hook?

You would be making the same argument if the State had a law that says no solid waste from outside the State may be, may come into this State?

Thomas L. Casey:

We would be probably taking a stronger position that Philadelphia v. New Jersey should be overruled.

We believe that our statute is significantly different than the statute in Philadelphia v. New Jersey.

Michigan does, the Michigan statute does permit counties to accept waste from out-of-state.

Thomas L. Casey:

Eight of the counties do.

Michigan also exports some waste to other counties.

Michigan–

William H. Rehnquist:

Well, what if in this case, Mr. Casey, the Michigan statute by name said these eight counties shall be able to import waste and the others shall not.

Would that make it any different a case for constitutional purposes?

Thomas L. Casey:

–In a facial challenge that would be much more like the statute that was present in Philadelphia v. New Jersey.

If Philadelphia v. New Jersey is still good law then the statute in Michigan would be–

William H. Rehnquist:

It would be much more like it in the sense that it was more like the Pennsylvania statute, or the New Jersey statute there.

But is that distinction significant for constitutional purposes, is that difference, the fact that the state, that it’s the state that decides whether or not a county will import garbage rather than the county itself?

Thomas L. Casey:

–The key differences between our statute and the statute in Philadelphia v. New Jersey is that in that case there was an absolute prohibition.

Our statute does not contain an absolute prohibition.

Our statute sets up a comprehensive planning process for all of the waste which is to be disposed of in a county to be subjected to identification of sources, estimation of volumes, because the key aspect of the Michigan statute is that it imposes on each county the requirement that they guarantee future disposal capacity for 20 years.

Antonin Scalia:

But you have to take responsibility for what your counties do under your authorization, and in fact it is a total prohibition with respect to some of the counties.

And they’re doing that under your state power, so it’s a total prohibition into some areas of the state.

Thomas L. Casey:

I would suggest to you that that would be the analysis if this were a challenge to the statute as applied in a particular circumstance.

What the petitioner is challenging is the mere fact that the state statute permits counties to make this local evaluation.

If a county prohibited out-of-state waste and a petitioner came in and challenged that as applied to if there would be a Commerce Clause challenge there, we would depend on local circumstances.

We would get into a detailed factual dispute as the Court had in Maine v. Taylor with an extensive evidentiary record.

This case was decided on summary judgment with virtually no evidentiary record at all.

And as it is postured in this case, the petitioner framed the question he presented in the petition, it is only a facial challenge.

We submit the question in this case is can a state ever permit local units of government to evaluate local circumstances–

Antonin Scalia:

In such manner as to exclude out-of-state garbage–

Thomas L. Casey:

–Yes.

Antonin Scalia:

–while still receiving in-county garbage.

Thomas L. Casey:

Correct.

That is the question.

Can a state, can any local circumstances ever justify a county in excluding out-of-state waste?

Byron R. White:

Well, suppose there’s an operator of an amusement park in St. Clair County and the county, and the state has a law like this that anybody, any county that wants to keep amusement, to prevent amusement parks from catering to out-of-state visitors may do so?

Thomas L. Casey:

That would not be our position, no.

Byron R. White:

Well what, what’s the difference?

Thomas L. Casey:

This subject matter is fundamentally different than the typical economic–

Byron R. White:

This amusement park operator wants to do business with out-of-state visitors, and the state says well, the county can keep them out, and the county has.

The county just doesn’t like the traffic that is coming in from out-of-state.

Thomas L. Casey:

–Under the traditional Commerce Clause analysis you have to determine the nature and the legitimacy of the local concerns.

We submit in this case this is not simply economic protectionism.

As the Court said in the Sporhase decision–

Byron R. White:

Well, neither would this be in my example.

Thomas L. Casey:

–Perhaps I didn’t understand your example.

I understood the, your hypothetical to be that they wanted to exclude out-of-county residents from using this county–

Byron R. White:

They want to exclude, they want to prevent the amusement park operator from doing business with people from out-of-state.

Thomas L. Casey:

–That probably would not be a sufficient justification for making the exclusion.

What you have to look at is the legitimacy of the local purpose.

What we have here is a purpose which is clearly legitimate, protection of the public health and the environment.

Byron R. White:

Well, the–

Thomas L. Casey:

The key is the means that the state has used to implement that legitimate purpose.

We believe the means that are used here in this statute are reasonable.

They are non-discriminatory, it is not an absolute statewide prohibition.

In this limited facial challenge it cannot be said that the Commerce Clause absolutely requires every county in Michigan to absorb waste without limitation of volume from all sources outside of the county.

David H. Souter:

–We do have to have a sense, don’t we, even as you have posed the issue before us, of the kinds of interest that, the kinds of local interest that it would be legitimate to assert, that might reasonably be asserted?

One of them, or maybe the one that you have just described to us, is a concern over public health.

And I’m not sure exactly, when you get beyond that, how that concern is to be expressed.

I take it you don’t take the position that it is impossible to run a landfill without a threat to public health, do you?

Thomas L. Casey:

To some extent landfills always pose dangers to public health.

This Michigan statute and the Federal statutes do their best to minimize that danger, but there is always going to be a danger.

David H. Souter:

All right, well how are we supposed to kind of get our hands on the kind of public health concern which you say at least facially, on a facial challenge might justify the restriction?

I mean, to be candid with you, all we’ve got is kind of a slogan, public health, protect public health, and I don’t know where we go when we get beyond that.

Thomas L. Casey:

The cases in which the Court has applied strict scrutiny in this Commerce Clause area deal with simple economic protectionism.

We don’t have that.

We have different–

David H. Souter:

No, that may be, but how do you articulate your public health interest?

David H. Souter:

That’s what I want to know.

I will assume that there is a public health motivation, but I want to have some sense… as you pose the case to us, I want to have some sense of what the legitimate concerns might be that therefore should be allowed, the possibility of which should be allowed to prevail over the facial challenge.

What are they?

Thomas L. Casey:

–There are in the neighborhood of 180 million tons a year of municipal solid waste generated.

It has to go somewhere.

Statutes on the Federal and state level are trying to encourage other types of source separation, recycling, composting, but the current practical reality is there are going to be landfills for the foreseeable future.

Landfills pose dangers wherever they’re located.

Our position in this case is that because Michigan has imposed on its county citizens the extreme burden of guaranteeing future capacity for their own incounty waste, because they have taken that burden on themselves they therefore are entitled under the Commerce Clause to have some limit in deciding their service area.

David H. Souter:

Well, it seems to me you have raised two issued but you haven’t answered the question.

The first issue is why does the decision of the State of Michigan to impose this burden on their citizens make it somehow affect the Commerce Clause analysis?

And number two, it still is an open question in my mind as to exactly what the public health hazards are, given the present state of solid waste technology, that we should consider as at least possible justifications in response to a facial challenge.

So you… I still think you’ve got two questions.

Why is it at all relevant that Michigan has allocated responsibility the way it has.

And number two, leaving that aside, what are the public health dangers that we’re supposed to consider as possibilities in responding to this challenge?

Thomas L. Casey:

Public health dangers in the form of leachate, fluids that seep through the landfill and are required to be pumped out and drained.

Public health dangers of methane gas which is produced by these, pest animals, insects, noise–

David H. Souter:

Those are good arguments for saying solid waste disposal sites are not desirable neighbors.

I mean, we’ll accept that.

They may be good arguments for saying in a perfect world we wouldn’t have them.

But why do, how do they rise to a point of clarity to allow us to consider them in deciding this case?

Thomas L. Casey:

–Because of the volume of solid waste which is created throughout the country, measures have to be taken somewhere to provide proper disposal.

Anthony M. Kennedy:

But this case is unlike the Taylor and Maine case, because there the out-of-state character of the item imported was itself the evil.

Here the evils that you have described apply in like measure to in-state and out-of-state garbage.

So I’m not sure how persuasive your answer is to Justice Souter’s question when he asked you to specify for us the particular evil, other than you’re saying it’s the shear volume, but volume can be measured by many ways other than in-state and out-of-state discrimination.

Thomas L. Casey:

Correct.

But under the traditional Commerce Clause analysis you look to the nature and legitimacy of the public purpose which is served.

You look to the legislative ends and the legislative means.

The goal here is to minimize environmental damage and minimize public health damage by landfills.

St. Clair County could have–

Byron R. White:

Is this law subject to strict scrutiny?

Thomas L. Casey:

–No.

We submit it–

Byron R. White:

What if it were?

Thomas L. Casey:

–It would still pass muster under either the–

Byron R. White:

And why isn’t it subject to strict scrutiny?

Thomas L. Casey:

–Because it is not facially discriminatory to the extent that the strict scrutiny cases have applied that standard.

David H. Souter:

Mr. Casey, may I go back to one of the questions that we have left dangling here?

Do you take the position that Michigan’s allocation of responsibility is in anyway relevant to the Commerce Clause analysis?

Thomas L. Casey:

I am not sure I understand.

David H. Souter:

Well, you began to answer a previous question of mine by saying that somehow it is reasonable to give the counties the kind of leeway that you want to give them because the state has allocated to the counties the responsibility for finding, or for establishing, I guess, disposal sites for, at least for their own county wastes.

And my… I think that’s what you were telling me.

And my question is isn’t that a problem for the State of Michigan?

What has that got to do with the Commerce Clause analysis?

Thomas L. Casey:

The Commerce Clause analysis that the petitioner has raised is that the statute is discriminatory, it favors in-county residents.

We submit that when you look at the entire statute as a whole as it operates it does not favor in-county residents.

In fact it burdens in-county residents.

They are not permitted to put their waste on trucks and send it someplace else.

They are required to guarantee for the next 20 years adequate landfill capacity to take care of all of the solid waste generated within that county.

Antonin Scalia:

Well, we don’t care, we don’t care if you discriminate against county residents.

That–

Thomas L. Casey:

But in the, the point I’m–

Antonin Scalia:

–You can be as unfair as you like to your state citizens and the Federal Government doesn’t care.

It’s only when you’re unfair to out-of-state citizens, and that’s the issue here.

Thomas L. Casey:

–I would analogize to the Sporhase decision.

There there was a statute regulating the withdrawal and transfer of groundwater.

The State of Nebraska imposed restrictions on in-state transfers and it imposed different restrictions on out-of-state transfers.

That was one of the factors the Court looked at in saying that that portion of the statute was not facially discriminatory, because it imposed burdens both on in-state residents and out-of-state residents.

We submit the same principle applies here.

Significant burdens are imposed on in-county residents, and the only burden that is imposed on out-of-county residents, for out-of-county waste, is that they participate in the planning process, but the counties, because they have assumed the burden of disposing of their own, are given some ability to limit their service area.

In a particular case if a county did not have sufficient justification for excluding out-of-county waste, a prohibition might be unconstitutional as applied.

Thomas L. Casey:

We don’t have that challenge in this case.

Antonin Scalia:

It isn’t enough to impose some burden on intrastate, on state residents.

It has to be the same burden, doesn’t it?

I can’t say well, I’m taxing my state residents and I don’t tax out-of-state people, and therefore I can do, you know, therefore I can prevent out-of-state people from bringing their garbage into this state.

Thomas L. Casey:

If the burdens are comparable, then the statute–

Antonin Scalia:

But they aren’t comparable.

Thomas L. Casey:

–We submit they are.

Antonin Scalia:

How are they?

Your county resident can dispose of the trash in the county landfill.

The out-of-state resident can’t.

Thomas L. Casey:

That’s correct, but the out-of-state resident can satisfy… the problem of solid waste is a local problem.

It’s generated at a local level.

Some localities solve the problem by putting it on trucks or trains and shipping it away.

When Michigan has undertaken the burden to dispose of its own waste, we submit that the Commerce Clause does not compel it to provide unlimited future landfill capacity for the rest of the country as well.

Antonin Scalia:

The Commerce Clause says there’s no such thing as a local problem, doesn’t it?

Isn’t that basically what the Commerce Clause says?

Thomas L. Casey:

No, I don’t think so at all.

I don’t think so at all.

The Commerce Clause does not elevate free trade above all other values.

Where there are legitimate public health purposes in this statute protecting against the health hazards, and the State has undertaken to address those problems and has burdened itself with the duty to provide its own future landfill capacity, we submit that by assuming that burden they can therefore exercise some control.

John Paul Stevens:

Mr. Casey, you point out that in some communities they put the garbage on trains or trucks and ship it away.

If every state in the United States had the same law that Michigan had, would that still be possible?

Thomas L. Casey:

If every state had a law like Michigan’s, every county would be required to dispose of its own solid waste and we would not have an interstate problem.

John Paul Stevens:

And if it found that it could do it much more cheaply by putting it on a train and shipping it to some area where the land is very cheap and there’s a lot of desert or something, they wouldn’t be able to do that, would they?

Thomas L. Casey:

They could if the receiving state accepted that burden.

There is nothing in the statute which prohibits any county from accepting burdens.

The question here is does the Commerce Clause require them to accept that burden when they are already assuming the burden of guaranteeing–

John Paul Stevens:

Why does, why does St. Clair County really want to forbid this private landfill operator from processing or disposing of out-of-state waste?

Thomas L. Casey:

–Again, we have very little in the way of evidentiary record here.

The only record we have is that the petitioner made a request to the county to amend its plan to permit 1,750 tons per day of out-of-county waste.

Thomas L. Casey:

A staff of the County Planning Commission, staff group looked at that and concluded that that amount of additional waste would use up all of the capacity which the county had planned for within 6 years instead of 20.

And at that point–

Byron R. White:

Well, hadn’t the operator been taking out-of-state waste?

Thomas L. Casey:

–No.

Byron R. White:

This was going to be new business?

Thomas L. Casey:

There had been litigation within the State where they were trying to take out-of-county waste.

Byron R. White:

So this would just be new business for the landfill operator?

Thomas L. Casey:

Correct.

The Fort Gratiot Landfill is included within the county plan.

The county plan estimates all of the waste which will be generated within the county, identifies the sources, estimates the volumes.

They are required to assure proper disposal for a 20-year period, and they have included the Fort Gratiot landfill in that.

John Paul Stevens:

It’s still true, as I understand, that if he could demonstrate that he could still handle all the local garbage for the next 20 years the law would still prohibit him from taking any out-of-state garbage.

Thomas L. Casey:

If he could make that showing in a challenge to the statute as applied–

John Paul Stevens:

No, I’m not, I’m not worrying about constitutionality, just the way it would work.

If he could demonstrate that he has this tremendous capacity that could handle both the out-of-state garbage and the local garbage for the next 50 years, the statute would still prohibit him from taking the out-of-state garbage.

Thomas L. Casey:

–Correct.

But a challenge by him on those facts could succeed.

A similar challenge has succeeded.

We cited the Dafter Township opinion of the Michigan Court of Appeals where precisely that situation occurred.

The Township sued a landfill operator who wanted to bring in out-of-county waste which was not included in the county plan.

The landfill operator was able to demonstrate that the, bringing in this additional amount would not impair the county’s capacity, and therefore the injunction was denied.

Byron R. White:

Well… go ahead.

What would happen under the statute if he decided that he couldn’t make a profit without taking out-of-state garbage and he decided to close up the dump entirely?

What would the county do?

Thomas L. Casey:

The county would have to find some alternative method of assuring disposal.

Byron R. White:

I see.

Thomas L. Casey:

That is the obligation–

John Paul Stevens:

He has no obligation to serve the county for the next 20 years.

Thomas L. Casey:

–No.

There are obligations in closing–

John Paul Stevens:

So that if he rents his space to an out-of-state customer it has the same impact on the county as if he just closed up?

The county still has to solve the problem.

Thomas L. Casey:

–The county would still have to solve the problem, yes.

David H. Souter:

Now I take it you agree with Mr. Finn that the county could do that simply by prohibiting landfills, or by going into the landfill business itself and in that instance could prohibit out-of-state receipt?

Thomas L. Casey:

I don’t know if the county could do that on its own because the statute requires them to assure capacity–

David H. Souter:

Well, there’s not comment that there would be… I assume you agree there would be no Commerce Clause bar to its doing so if that were otherwise the political disposition of the State?

Thomas L. Casey:

–Correct.

Correct.

The Commerce Clause would permit the State of Michigan to say no landfills anywhere.

Byron R. White:

Did this landfill operator, didn’t he offer to, didn’t he undertake to satisfy the, all of the county’s–

Thomas L. Casey:

In the proposal that he submitted he said that, the county said… the company said it would guarantee the full 20-year capacity.

The staff looked at that same proposal and said no, there is only, there would only be 6 years that would use it up.

That’s a fact dispute.

If they had pursued their as applied challenge and he could show that St. Clair County impermissibly was restricting out-of-state waste for protectionist purposes, to hoard their own limited capacity, he might succeed on an as-applied challenge.

But we have here, the simple question that’s before the Court today is where the county, or the State of Michigan and its counties have assumed this burden of taking care of their own waste, guaranteeing their own future capacity for 20 years, does the Commerce Clause require every county also to assume the burden of disposing in the future of as much waste as the landfill operator wants to bring in?

We say it does not.

In the balancing of local interests and the national interest in free markets, this statute is a reasonable regulation.

It is not an absolute prohibition.

It is, it applies even-handedly because–

John Paul Stevens:

–Of course there wasn’t an absolute prohibition in the New Jersey case either, was there?

Thomas L. Casey:

–There were four very limited exceptions, but–

John Paul Stevens:

But they were whatever exceptions the agency wanted to allow, and they allowed for.

Thomas L. Casey:

–The governor or whoever the official was passed a regulation with four exceptions, but the Court said–

John Paul Stevens:

Just as here a county can allow out-of-state garbage if it wants to.

It’s the same kind of loophole if they want to take advantage of it, if the government wants to take advantage of it.

Thomas L. Casey:

–In a facial challenge such as this what we’re saying is that it is permissible for a state statute to let local governments evaluate local circumstances.

If the local circumstances are such that they cannot accommodate out-of-state waste, then the Commerce Clause does not require that county to accept the out-of-state waste.

That would require a challenge as applied.

What we have here is a facial challenge, and the question is can a state statute ever permit a county to evaluate its own local circumstances and make its decision based on those local circumstances and local consequences.

If a particular challenge was made a prohibition such as St. Clair County’s might be unconstitutional as applied in a particular case, but on the facts that we have here and the very narrow limited challenge it simply cannot be said that the Michigan statute unreasonably impairs interstate commerce.

William H. Rehnquist:

The district court here granted summary judgment to the respondents here, I mean to the petitioner here?

Thomas L. Casey:

No.

The petitioner filed motions for summary judgment.

The court denied those and entered judgments for the respondents on all counts.

But there was no trial.

William H. Rehnquist:

So in effect it was giving you the benefit, it was resolving all disputed facts against you, I take it then?

Thomas L. Casey:

That’s correct.

It was on a summary judgment motion.

William H. Rehnquist:

And then the Sixth Circuit sent it, the Sixth Circuit upheld that?

Thomas L. Casey:

Correct.

Both the district court and the court of appeals applied the Pike test, and in the traditional application of the Pike test they found there was no facial discrimination.

We reject the petitioner’s characterization that there is some new principle being espoused here.

We submit there is not.

In summary we submit this is a reasonable regulation that does not unduly interfere with interstate commerce, but it does permit protection of the public health.

If there are no further questions.

Thank you.

William H. Rehnquist:

Thank you, Mr. Casey.

Mr. Finn, you have 6 minutes remaining.

Harold B. Finn, III:

The section 13(a) and subsection (2) of the act prohibit any public or private landfill in the, in any county from accepting waste, municipal solid waste, unless it is expressly authorized in the county plan.

In 1988 at the time that the waste importation restrictions were enacted and at all times thereafter the St. Clair County plan did not permit the importation of municipal solid waste from out-of-county.

So the act at the moment it was passed and at all times since has barred absolutely the importation of municipal solid waste into St. Clair County.

Antonin Scalia:

Is that a facial challenge to the act, or is it a facial challenge to the act plus the St. Clair implementation of the act?

Harold B. Finn, III:

It is–

Antonin Scalia:

What are you facially challenging?

The Michigan–

Harold B. Finn, III:

–I am challenging the act as it incorporates the St. Clair County solid waste management plan as it was in effect at the time.

Antonin Scalia:

–So yours is not just a facial challenge to the whole Michigan statute, it’s a facial challenge to the Michigan statute with the St. Clair ordinance implementing?

Harold B. Finn, III:

That is correct.

It is on its face by incorporating the St. Clair County solid waste management plan, or in effect in either case the result is the same.

The suggestion that there is a safety concern, I don’t… it is not in the briefs, it is not in the record.

Harold B. Finn, III:

Obviously one wants to handle municipal solid waste in a manner that doesn’t create a safety problem.

And I think in the case of Michigan their regulatory and legislative scheme prevents there from being any safety problem so long as it’s handled in accordance with the requirements of the act and the regulations.

I also want to point out that under the new EPA regulations there is no need for there to be any safety problem.

Indeed the new regulations specifically state that the minimum national criteria prescribed therein insure the protection of human health and the environment.

With respect to the suggestion that Michigan is in a special place because it’s bearing a burden, I want to call the Court’s attention to the decision of this Court in Edwards v. California.

There California attempted to impose criminal sanctions upon anyone who brought indigents into the State of California, and California contended that during the period of the Depression when indigents coming into the state would put the state to extraordinary strains, they should be allowed to avoid this burden, and this Court, as you all know, rejected that contention on Commerce Clause grounds.

I also want to point out that every state bears the burden of other by-products of other states.

For example, Connecticut bears the burden of the soot and smoke and pollution that comes out of Michigan’s factories.

No one would suggest that we can take retaliatory steps in Connecticut to prevent Michigan by way of preventing Michigan products from coming into Connecticut, or otherwise to alleviate our burden.

Here Michigan seeks to impose the burden that it believes it is undertaking–

William H. Rehnquist:

This garbage is coming all the way from Connecticut to Michigan?

Harold B. Finn, III:

–No garbage is coming to this landfill.

None is allowed in.

William H. Rehnquist:

But I mean that was the proposal, to bring garbage in–

Harold B. Finn, III:

There was a proposal to bring it, as I recall, from the New York area.

I finally want to point out that if Michigan or the other states believed that this, that the Commerce Clause causes them burdens that they find unacceptable, that’s a political question.

There are 21 states who have joined as amici with Michigan, and that creates 22 states or 44 senators who have the power to do something about this.

As Justice McKenna said in West v. Kansas Natural Gas, if there is to be any turning backward it must be done by the authority of another instrumentality than a court.

That is Congress has the responsibility to act in this matter, and it hasn’t chosen to do so.

Antonin Scalia:

–Well, a state… we had this problem in the last case.

The state legislatures don’t elect their senators anymore.

Harold B. Finn, III:

I would hope that the states can exert a sufficient influence either through their populace, which seems to be the one that’s, the populace seems to be objecting more than anything to the placement of landfills, and they are the ones that elect the senators.

And if they don’t like it I think they can exert the political pressure to get a political change.

If there are no further questions, thank you very much.

William H. Rehnquist:

Thank you, Mr. Finn.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.