Philadelphia v. New Jersey

Under Philadelphia v. New Jersey environmental protectionism was found to be just as unconstitutionally "illegitimate" as any other barrier "isolating the state from the national economy." The decision effectively barred state legislatures from giving inhabitants of its own state "preferred rights," even to protect the natural ecology or as a safeguard against fears of possible "contagion."

The per curium decision in Philadelphia v. New Jersey meant "the court was ruling that the great compact drawn up in Philadelphia in 1787 implied a common undertaking that no state would try to solve its problems primarily at the expense of the people of other states." So argued famed Watergate prosecutor Archibald Cox in his book, The Court and the Constitution. New Jersey could not protect its environment "by discriminating against the waste of other states," Cox concluded.

Mounting public concern about environmental degradation in the late 1960s and early 1970s led to the passage of many state and federal laws. Perhaps the most notable state law was a 1974 New Jersey law prohibiting the dumping of out-of-state solid and liquid wastes in the Garden State other than garbage fed to pigs. New York and Philadelphia, which had been finding it "expedient or necessary," to use New Jersey as a dump for decades, protested. The New Jersey Supreme Court, however, agreed with the state legislature that any economic burden that New York and Philadelphia suffered as a consequence was "slight." The state court also found the need to protect New Jersey's health, resources, and environment against a "cascade of rubbish."

The city of Philadelphia sued New Jersey, citing the 1851 Supreme Court decision Cooley v. The Board of Wardens. That decision said prescribed state regulations, in the absence of federal statutes, "require uniformity" while "admitting of diversity." Under that formula, the Supreme Court had overturned many state laws designed to protect jobs, industries, and financial resources. Quarantines of diseased animals were notable exceptions. Such quarantines had been upheld, Justice Stewart wrote in Philadelphia v. New Jersey because:

[D]iseased livestock required destruction as soon as possible because their very movement risked contagion. The New Jersey law is not such a quarantine law. There has been no claim here that the very movement of waste into or through New Jersey endangers health, or that waste must be disposed of as soon and as close to its point of generation as possible.

The harms caused by the waste are said to arise after its disposal in landfill sites, and, at that point, as New Jersey concedes, there is no basis to distinguish out-of-state waste from domestic waste. If one is inherently harmful, so is the other. Yet New Jersey has banned the former while leaving its landfill sites open to the other.

New Jersey was engaged in "an obvious effort," Justice Stewart concluded, "to saddle those outside the state with the entire burden of slowing the flow of refuse into New York's remaining landfill sites. That legislative effort is clearly impermissible under the Commerce Clause of the Constitution."

Justice Rehnquist dissented on behalf of himself and Chief Justice Burger:

New Jersey should be free . . . to prohibit the importation of solid waste because of the health and safety problems that such wastes poses to its citizens . . . I do not see why a state may not ban the importation of items whose importation risks contagion, but cannot ban the importation of items which, although they may be transported . . . without undue hazard, will then simply pile up in an ever increasing danger to the public's health and safety. The Commerce Clause was not drawn with a view to having the validity of state laws turn on such pointless distinctions.

Justice Rehnquist then drew a distinction of his own, differing from Justice Stewart's, between the refuse of New Jersey and that of other states. New Jersey's own dumping of wastes in landfills, Rehnquist argued:

. . . does not mean that solid waste is not innately harmful. New Jersey out of sheer necessity must treat and dispose of its solid waste in some fashion, just as it must treat New Jersey cattle suffering from hoof-and-mouth disease. It does not follow that New Jersey must, under the Commerce Clause, accept solid waste or diseased cattle from outside its borders and thereby exacerbate its problems.

Solid waste, however, is not the equivalent of contaminated cattle, nor can anyone, including future chief justices, logically prove a negative. Without some positive proof to the contrary, the fact that solid waste may not be "innately harmful" is not proof that it is, in fact, "innately harmful." The conclusion in Philadelphia v. New Jersey is still a standing law.