FORT GRATIOT SANITARY LANDFILL, INC., PETITIONER v. MICHIGAN
DEPARTMENT OF NATURAL RESOURCES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued March 30, 1992
Decided June 1, 1992
The Waste Import Restrictions of Michigan's Solid Waste Management Act (SWMA) provide that solid waste generated in another county, State, or country cannot be accepted for disposal unless explicitly authorized in the receiving county's plan. After St. Clair County, whose plan does not include such authorization, denied petitioner company's 1989 application for authority to accept out-of-state waste at its landfill, petitioner filed this action seeking a judgment declaring the Waste Import Restrictions invalid under the Commerce Clause and enjoining their enforcement. The District Court dismissed the complaint, and the Court of Appeals affirmed. The latter court found no facial discrimination against interstate commerce, because the statute does not treat out-of-county waste from Michigan any differently than waste from other States. The court also ruled that there was no actual discrimination, because petitioner had not alleged that all Michigan counties ban out-of-state waste.
The Waste Import Restrictions unambiguously discriminate against interstate commerce, and are appropriately characterized as protectionist measures that cannot withstand Commerce Clause scrutiny. Pp. 4-14.
STEVENS, J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. REHNQUIST, C.J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 368.
Harold B. Finn III argued the cause for petitioner. With him on the briefs were Donna Nelson Heller and David I. Albin.
Thomas L. Casey, Assistant Solicitor General of Michigan, argued the cause for respondents. With him on the brief for the state respondents were Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, and Thomas J. Emery and James E. Riley, Assistant Attorneys General. Lawrence R. Ternan, Margaret Battle Kiernan, and Robert J. Nickerson filed a brief for the county respondents. *
[ Footnote * ] Andrew J. Pincus, Evan M. Tager, and Bruce J. Parker filed a brief for the National Solid Wastes Management Association as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Chris Gorman, Attorney General of Kentucky, and [504 U.S. 353, 355] Robert V. Bullock and Stan Cox, Assistant Attorneys General, James H. Evans, Attorney General of Alabama, Grant Woods, Attorney General of Arizona, Charles M. Oberly III, Attorney General of Delaware, Linley E. Pearson, Attorney General of Indiana, Charles S. Crookham, Attorney General of Oregon, and Mary Sue Terry, Attorney General of Virginia; and for Whatcom County, Washington, by Paul J. Kundtz.
A brief of amici curiae was filed for the Commonwealth of Pennsylvania et al. by Ernest D. Preate, Jr., Attorney General of Pennsylvania, Calvin R. Koons, Senior Deputy Attorney General, John G. Knorr III, Chief Deputy Attorney General, Gail B. Phelps, and David H. Wersan, and by the Attorneys General for their respective States as follows: Michael J. Bowers of Georgia, Larry EchoHawk of Idaho, Roland W. Burris of Illinois, Marc Racicot of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Nicholas Spaeth of North Dakota, Tom Udall of New Mexico, Lee Fisher of Ohio, T. Travis Medlock of South Carolina, Mark Barnett of South Dakota, Charles W. Burson of Tennessee, Mario J. Palumbo of West Virginia, and Joseph B. Meyer of Wyoming. [504 U.S. 353, 355]
JUSTICE STEVENS delivered the opinion of the Court.
In Philadelphia v. New Jersey, 437 U.S. 617, 618 (1978), we held that a New Jersey law prohibiting the importation of most "`solid or liquid waste which originated or was collected outside the territorial limits of the State'" violated the Commerce Clause of the United States Constitution. In this case, petitioner challenges a Michigan law that prohibits private landfill operators from accepting solid waste that originates outside the county in which their facilities are located. Adhering to our holding in the New Jersey case, we conclude that this Michigan statute is also unconstitutional.
In 1978, Michigan enacted its Solid Waste Management Act 1 (SWMA). That Act required every Michigan county to estimate the amount of solid waste that would be generated in the county in the next 20 years, and to adopt a plan providing for its disposal at facilities that comply with state health standards. Mich. Comp. Laws 299.425 (Supp. 1991). [504 U.S. 353, 356] After holding public hearings and obtaining the necessary approval of municipalities in the county, as well as the approval of the Director of the Michigan Department of Natural Resources, the County Board of Commissioners adopted a solid waste management plan for St. Clair County. In 1987, the Michigan Department of Natural Resources issued a permit to petitioner to operate a sanitary landfill as a solid waste 2 disposal area in St. Clair County. See Bill Kettlewell Excavating, Inc. v. Michigan Dept. of Natural Resources, 931 F.2d 413, 414 (CA6 1991).
On December 28, 1988, the Michigan Legislature amended the SWMA by adopting two provisions concerning the "acceptance of waste or ash generated outside the county of disposal area." See 1988 Mich. Pub.Acts, No. 475, 1, codified as amended, Mich.Comp.Laws 299.413a, 299.430(2) [504 U.S. 353, 357] (Supp. 1991). Those amendments (Waste Import Restrictions), which became effective immediately, provide:
Petitioner therefore commenced this action seeking a judgment declaring the Waste Import Restrictions unconstitutional and enjoining their enforcement. Petitioner contended that requiring a private landfill operator to limit its business to the acceptance of local waste constituted impermissible discrimination against interstate commerce. The District Court denied petitioner's motion for summary judgment, however, id., at 766, and subsequently dismissed the complaint, App. 4. The court first concluded that the statute [504 U.S. 353, 358] does not discriminate against interstate commerce "on its face" because the import restrictions apply "equally to Michigan counties outside of the county adopting the plan as well as to out-of-state entities." 732 F.Supp., at 764. It also concluded that there was no discrimination "in practical effect," because each county was given discretion to accept out-of-state waste. Ibid. Moreover, the incidental effect on interstate commerce was "not clearly excessive in relation to the [public health and environmental] benefits derived by Michigan from the statute." Id., at 765.
The Court of Appeals for the Sixth Circuit agreed with the District Court's analysis. Although it recognized that the statute "places in-county and out-of-county waste in separate categories," the Court of Appeals found no discrimination against interstate commerce, because the statute "does not treat out-of-county waste from Michigan any differently than waste from other states." 931 F.2d, at 417. It also agreed that there was no actual discrimination, because petitioner had not alleged that all counties in Michigan ban out-of-state waste. Id., at 418. Accordingly, it affirmed the judgment of the District Court. Ibid. We granted certiorari, 502 U.S. 1024 (1992), because of concern that the decision below was inconsistent with Philadelphia v. New Jersey and now reverse.
Before discussing the rather narrow issue that is contested, it is appropriate to identify certain matters that are not in dispute. Michigan's comprehensive program of regulating the collection, transportation, and disposal of solid waste, as it was enacted in 1978 and administered prior to the 1988 Waste Import Restrictions, is not challenged. No issue relating to hazardous waste is presented, and there is no claim that petitioner's operation violated any health, safety, or sanitation requirement. Nor does the case raise any question concerning policies that municipalities or other governmental agencies may pursue in the management of [504 U.S. 353, 359] publicly owned facilities. The case involves only the validity of the Waste Import Restrictions as they apply to privately owned and operated landfills.
On the other hand, Philadelphia v. New Jersey provides the framework for our analysis of this case. Solid waste, even if it has no value, is an article of commerce. 3 437 U.S., at 622 -623. Whether the business arrangements between out-of-state generators of waste and the Michigan operator of a waste disposal site are viewed as "sales" of garbage or "purchases" of transportation and disposal services, the commercial transactions unquestionably have an interstate character. The Commerce Clause thus imposes some constraints on Michigan's ability to regulate these transactions.
As we have long recognized, the "negative" or "dormant" aspect of the Commerce Clause prohibits States from "advanc[ing] their own commercial interests by curtailing the movement of articles of commerce, either into or out of the state." H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 535 (1949). A state statute that clearly discriminates against interstate commerce is therefore unconstitutional "unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism." New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 274 (1988). [504 U.S. 353, 360]
New Jersey's prohibition on the importation of solid waste failed this test:
Respondents Michigan and St. Clair County argue, however, that the Waste Import Restrictions - unlike the New Jersey prohibition on the importation of solid waste - do not discriminate against interstate commerce on their face or in effect, because they treat waste from other Michigan counties no differently than waste from other States. Instead, respondents maintain, the statute regulates evenhandedly to effectuate local interests, and should be upheld because the burden on interstate commerce is not clearly excessive in relation to the local benefits. Cf. Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). We disagree, for our prior cases teach that a State (or one of its political subdivisions) may not avoid the strictures of the Commerce Clause by curtailing the movement of articles of commerce through subdivisions of the State, rather than through the State itself.
In Brimmer v. Rebman, 138 U.S. 78 (1891), we reviewed the constitutionality of a Virginia statute that imposed special inspection fees on meat from animals that had been slaughtered more than 100 miles from the place of sale. We concluded that the statute violated the Commerce Clause even though it burdened Virginia producers as well as the Illinois litigant before the Court. We explained: [504 U.S. 353, 362]
Nor does the fact that the Michigan statute allows individual counties to accept solid waste from out of state qualify its discriminatory character. In the New Jersey case, the statute authorized a state agency to promulgate regulations permitting certain categories of waste to enter the State. See 437 U.S., at 618 -619. The limited exception covered by those regulations - like the fact that several Michigan counties accept out-of-state waste - merely reduced the scope of the discrimination; for all categories of waste not excepted by the regulations, the discriminatory ban remained in place. Similarly, in this case, St. Clair County's total ban on out-of-state waste is unaffected by the fact that some other counties have adopted a different policy. 4
In short, neither the fact that the Michigan statute purports to regulate intercounty commerce in waste nor the fact that some Michigan counties accept out-of-state waste provides an adequate basis for distinguishing this case from Philadelphia v. New Jersey.
Michigan and St. Clair County also argue that this case is different from Philadelphia v. New Jersey because the SWMA constitutes a comprehensive health and safety regulation, rather than "economic protectionism" of the State's limited landfill capacity. Relying on an excerpt from our opinion in Sporhase v. Nebraska ex rel. Douglas, [504 U.S. 353, 364] 458 U.S. 941 (1982), they contend that the differential treatment of out-of-state waste is reasonable because they have taken measures to conserve their landfill capacity and the SWMA is necessary to protect the health of their citizens. That reliance is misplaced. In the Sporhase case, we considered the constitutionality of a Nebraska statute that prohibited the withdrawal of ground water for use in an adjoining State without a permit that could only issue if four conditions were satisfied. 5 We held that the fourth condition - a requirement that the adjoining State grant reciprocal rights to withdraw its water and allow its use in Nebraska - violated the Commerce Clause. Id., at 957-958.
As a preface to that holding, we identified several reasons that, in combination, justified the conclusion that the other conditions were facially valid. Id., at 957. First, we questioned whether the statute actually discriminated against interstate commerce. Although the restrictive conditions in the statute nominally applied only to interstate transfers of ground water, they might have been "no more strict in application than [other state-law] limitations upon intrastate transfers." Id., at 956. "Obviously, a State that imposes severe withdrawal and use restrictions on its own citizens is not discriminating against interstate commerce when it [504 U.S. 353, 365] seeks to prevent the uncontrolled transfer of water out of the State." Id., at 955-956.
We further explained that a confluence of factors could justify a State's efforts to conserve and preserve ground water for its own citizens in times of severe shortage. 6 Only the first of those reasons - our reference to the well-recognized [504 U.S. 353, 366] difference between economic protectionism, on the one hand, and health and safety regulation, on the other - is even arguably relevant to this case. 7 We may assume that all of the provisions of Michigan's SWMA prior to the 1988 amendments adding the Waste Import Restrictions could fairly be characterized as health and safety regulations with no protectionist purpose, but we cannot make that same assumption with respect to the Waste Import Restrictions themselves. Because those provisions unambiguously discriminate against interstate commerce, the State bears the burden of proving that they further health and safety concerns that cannot be adequately served by nondiscriminatory alternatives. Michigan and St. Clair County have not met this burden. 8
Michigan and St. Clair County assert that the Waste Import Restrictions are necessary because they enable individual counties to make adequate plans for the safe disposal of future waste. 9 Although accurate forecasts about the volume [504 U.S. 353, 367] and composition of future waste flows may be an indispensable part of a comprehensive waste disposal plan, Michigan could attain that objective without discriminating between in- and out-of-state waste. Michigan could, for example, limit the amount of waste that landfill operators may accept each year. See Philadelphia v. New Jersey, 437 U.S., at 626 . There is, however, no valid health and safety reason for limiting the amount of waste that a landfill operator may accept from outside the State, but not the amount that the operator may accept from inside the State.
Of course, our conclusion would be different if the imported waste raised health or other concerns not presented by Michigan waste. In Maine v. Taylor, 477 U.S. 131 (1986), for example, we upheld the State's prohibition against the importation of live baitfish because parasites and other characteristics of nonnative species posed a serious threat to native fish that could not be avoided by available inspection techniques. We concluded:
For the foregoing reasons, the Waste Import Restrictions unambiguously discriminate against interstate commerce, and are appropriately characterized as protectionist measures that cannot withstand scrutiny under the Commerce [504 U.S. 353, 368] Clause. The judgment of the Court of Appeals is therefore reversed.
It is so ordered.
[ Footnote 2 ] The Michigan statute defines solid waste as follows:
[ Footnote 3 ] As we explained in Philadelphia v. New Jersey:
[ Footnote 4 ] Cf. Wyoming v. Oklahoma, 502 U.S. 437, 455 (1992) (Oklahoma statute that "expressly reserves a segment of the Oklahoma coal market for Oklahoma-mined coal, to the exclusion of . . . other States," violates the Commerce Clause even though it "sets aside only a `small portion' of the Oklahoma coal market. . . . The volume of commerce affected measures only the extent of the discrimination; it is of no relevance to the determination whether a State has discriminated against interstate commerce") (emphasis in original).
[ Footnote 5 ] The statute at issue in Sporhase v. Nebraska ed rel. Douglas provided:
[ Footnote 6 ] "Moreover, in the absence of a contrary view expressed by Congress, we are reluctant to condemn as unreasonable measures taken by a State to conserve and preserve for its own citizens this vital resource in times of severe shortage. Our reluctance stems from the "confluence of [several] realities." Hicklin v. Orbeck, 437 U.S. 518, 534 (1978). First, a State's power to regulate the use of water in times and places of shortage for the purpose of protecting the health of its citizens - and not simply the health of its economy - is at the core of its police power. For Commerce Clause purposes, we have long recognized a difference between economic protectionism, on the one hand, and health and safety regulation, on the other. See H.P. Hood & Sons, v. Du Mond, 336 U.S. 525, 533 (1949). Second, the legal expectation that, under certain circumstances, each State may restrict water within its borders has been fostered over the years not only by our equitable apportionment decrees, see, e.g., Wyoming v. Colorado, 353 U.S. 953 (1957), but also by the negotiation and enforcement of interstate compacts. Our law therefore has recognized the relevance of state boundaries in the allocation of scarce water resources. Third, although appellee's claim to public ownership of Nebraska ground water cannot justify a total denial of federal regulatory power, it may support a limited preference for its own citizens in the utilization of the resource. See Hicklin v. Orbeck, supra, at 533-534. In this regard, it is relevant that appellee's claim is logically more substantial than claims to public ownership of other natural resources. See supra, at 950-951. Finally, given appellee's conservation efforts, the continuing availability of ground water in Nebraska is not simply happenstance; 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. See Reeves, Inc. v. Stake, 447 U.S. 429 (1980); cf. Philadelphia v. New Jersey, 437 U.S., at 627 -628, and n. 6; Baldwin v. Montana Fish and Game Comm'n 436 U.S. 371 (1978). A facial examination of the first three conditions set forth in 46-613.01 does not, therefore, indicate that they impermissibly burden interstate commerce. Appellants, indeed, seem to concede their reasonableness." Sporhase v. Nebraska ex rel. Douglas, 458 U.S., at 956 -957.
[ Footnote 7 ] The other reasons were related to the special role that States have traditionally played in the ownership and control of ground water and to the fact that Nebraska's conservation efforts had given the water some indicia of a good that is publicly produced and owned. See id., at 956. There are, however, no analogous traditional legal expectations regarding state regulation of private landfills, which are neither publicly produced nor publicly owned.
[ Footnote 8 ] The dissent states that we should remand for further proceedings in which Michigan and St. Clair County might be able to prove that the Waste Import Restrictions constitute legitimate health and safety regulations, rather than economic protectionism of the State's limited landfill capacity. See post, at 368-371. We disagree, for respondents have neither asked for such a remand nor suggested that, if given the opportunity, they could prove that the restrictions further health and safety concerns that cannot adequately be served by nondiscriminatory alternatives.
[ Footnote 9 ] "An unregulated free market flow of waste into Michigan," the State asserts, "would be disruptive of efforts to plan for the proper disposal of future waste due to incoming waste from sources not accounted for during the planning process." Brief for State Respondents 49; see also Brief for County Respondents 13.
CHIEF JUSTICE REHNQUIST, with whom Justice BLACKMUN joins, dissenting.
When confronted with a dormant Commerce Clause challenge, "[t]he crucial inquiry . . . must be directed to determining whether [the challenged statute] is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental." Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978). Because I think the Michigan statute is at least arguably directed to legitimate local concerns, rather than improper economic protectionism, I would remand this case for further proceedings.
The substantial environmental, esthetic, health, and safety problems flowing from this country's waste piles were already apparent at the time we decided Philadelphia. Those problems have only risen in the intervening years. Salisbury, Pollution Liability Insurance coverage, the Standard-Form Pollution Exclusion, and the Insurance Industry: A case study in Collective Amnesia, 1 Envtl. L. 357, 369-370 (1991). In part, this is due to increased waste volumes, volumes that are expected to continue rising for the foreseeable future. See United States Environmental Protection Agency, Characterization of Municipal Solid Waste in the United States: 1990 Update 10 (municipal solid wastes have increased from 128.1 million tons in 1975 to 179.6 million tons in 1988, expected to rise to 216 million tons by the year 2000); id., at ES-3 (1988 waste was the equivalent of 4.0 pounds per person per day, expected to rise to 4.4 pounds per person by the year 2000). In part, it is due to exhaustion of existing capacity. Id., at 55 (landfill disposals increased from 99.7 million tons in 1975 to 130.5 million in 1988); 56 Fed.Reg. 50980 (1991) (45% of solid waste landfills expected to reach [504 U.S. 353, 369] capacity by 1991). It is no secret why capacity is not expanding sufficiently to meet demand - the substantial risks attendant to waste sites make them extraordinarily unattractive neighbors. Swin Resource Systems, Inc. v. Lycoming Cty., 883 F.2d 245, 253 (CA3 1989), cert. denied, 493 U.S. 1077 (1990). The result, of course, is that, while many are willing to generate waste - indeed, it is a practical impossibility to solve the waste problem by banning waste production - few are willing to help dispose of it. Those locales that do provide disposal capacity to serve foreign waste effectively are affording reduced environmental and safety risks to the States that will not take charge of their own waste. *
The State of Michigan has stepped into this quagmire in order to address waste problems generated by its own populace. It has done so by adopting a comprehensive approach to the disposal of solid wastes generated within its borders. The legislation challenged today is simply one part of a broad package that includes a number of features: a state-mandated statewide effort to control and plan for waste disposal, Mich. Comp. Laws 299.427 and 299.430 (1984 and Supp. 1991), requirements that local units of government participate in the planning process, ibid., and 299.426 (Supp. 1991), restrictions to assure safe transport, 299.431 (1984), a ban on the operation of waste disposal facilities unless various design and technical requirements are satisfied and appropriate permits obtained, ibid., and 299.432a (Supp. 1991), and commitments to promote source separation, composting, and recycling, 299.430a (Supp. 1991). The Michigan legislation is [504 U.S. 353, 370] thus quite unlike the simple outright ban that we confronted in Philadelphia.
In adopting this legislation, the Michigan Legislature also appears to have concluded that, like the State, counties should reap as they have sown - hardly a novel proposition. It has required counties within the State to be responsible for the waste created within the county. It has accomplished this by prohibiting waste facilities from accepting waste generated from outside the county, unless special permits are obtained. In the process, of course, this facially neutral restriction (i.e., it applies equally to both interstate and intrastate waste) also works to ban disposal from out-of-state sources unless appropriate permits are procured. But I cannot agree that such a requirement, when imposed as one part of a comprehensive approach to regulating in this difficult field, is the stuff of which economic protectionism is made.
If anything, the challenged regulation seems likely to work to Michigan's economic disadvantage. This is because, by limiting potential disposal volumes for any particular site, various fixed costs will have to be recovered across smaller volumes, increasing disposal costs per unit for Michigan consumers. 56 Fed.Reg. 50987 (1991). The regulation also will require some Michigan counties - those that until now have been exporting their waste to other locations in the State - to confront environmental and other risks that they previously have avoided. Commerce Clause concerns are at their nadir when a state Act works in this fashion - raising prices for all the State's consumers, and working to the substantial disadvantage of other segments of the State's population - because, in these circumstances, "`a State's own political processes will serve as a check against unduly burdensome regulations.'" Kassel v. Consolidated Freightways Corp. of Del., 450 U.S. 662, 675 (1981) (quoting Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 444 , n. 18 (1978)). In sum, the law simply incorporates the commonsense [504 U.S. 353, 371] notion that those responsible for a problem should be responsible for its solution to the degree they are responsible for the problem, but not further. At a minimum, I think the facts just outlined suggest the State must be allowed to present evidence on the economic, environmental, and other effects of its legislation.
The Court suggests that our decisions in Brimmer v. Rebman, 138 U.S. 78 (1891), and Dean Milk Co. v. Madison, 340 U.S. 349 (1951), foreclose the possibility that a statute attacked on Commerce Clause grounds may be defended by pointing to the statute's effects on intrastate commerce. But our decisions in those cases did not rest on such a broad proposition. Instead, as the passages quoted by the Court make clear, in both Brimmer and Dean Milk, the Court simply rejected the notion that there could be a noneconomic protectionist reason for the bans at issue, because the objects being banned presented no health or environmental risk. See Brimmer, 138 U.S., at 83 ("[i]f the object of Virginia had been to obstruct the bringing into that State, for uses as human food, of all beef, veal and mutton, however wholesome" (emphasis added)); see also ibid. (comparing the statute to one that bans meat from other States "in whatever form, and although entirely sound and fit for human food" (emphasis added)); Dean Milk, 340 U.S., at 354 (the statute "excludes from distribution in Madison wholesome milk" (emphasis added)). It seems unlikely that the waste here is "wholesome" or "entirely sound and fit." It appears, instead, to be potentially dangerous - at least the State has so concluded. Nor does the legislation appear to protect "a major local industry against competition from without the State." Ibid. Neither Dean Milk nor Brimmer prohibits a State from adopting health and safety regulations that are directed to legitimate local concerns. See Maine v. Taylor, 477 U.S. 131 (1986). I would remand this case to give the State an opportunity to show that this is such a regulation. [504 U.S. 353, 372]
We confirmed in Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982), that a State's effort to adopt a comprehensive regime to address a major environmental threat or threat to natural resources need not run afoul of the Commerce Clause. In that case, we noted 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. Substitute "attractive and safe environment" for "water" and one has the present case. Michigan has limited the ability of its own population to despoil the environment and to create health and safety risks by excessive and uncontrolled waste disposal. It does not thereby violate the Commerce Clause when it seeks to prevent this resource from being exported - the effect if Michigan is forced to accept foreign waste in its disposal facilities. Rather, the "resource has some indicia of a good publicly produced and owned in which a State may favor its own citizens in times of shortage." Id., at 957. Of course the State may choose not to do this, and in fact, in this case, Michigan does permit counties to decide on an individualized basis whether to accept out-of-county waste. But such a result is not constitutionally mandated.
The modern landfill is a technically complex engineering exercise that comes replete with liners, leachate collection systems, and highly regulated operating conditions. As a result, siting a modern landfill can now proceed largely independent of the landfill location's particular geological characteristics. See 56 Fed.Reg. 51009 (1991) (Environmental Protection Agency-approved "composite liner system is designed to be protective in all locations, including poor locations"); id., at 51004-51005 (outlining additional technical requirements for only those landfill sites (1) near airports, (2) on floodplains, (3) on wetlands, (4) on fault areas, (5) on seismic impact zones, or (6) on unstable areas). Given this, the laws of economics suggest that landfills will sprout in places [504 U.S. 353, 373] where land is cheapest and population densities least. See Alm, "Not in My Backyard:" Facing the Siting Question, 10 EPA J. 9 (1984) (noting the need for each county to accept a share of the overall waste stream equivalent to what it generates, so that "less populated counties are protected against becoming the dumping ground of the entire region"). I see no reason in the Commerce Clause, however, that requires cheap-land States to become the waste repositories for their brethren, thereby suffering the many risks that such sites present.
The Court today penalizes the State of Michigan for what, to all appearances, are its good faith efforts, in turn encouraging each State to ignore the waste problem in the hope that another will pick up the slack. The Court's approach fails to recognize that the latter option is one that is quite real and quite attractive for many States - and becomes even more so when the intermediate option of solving its own problems, but only its own problems, is eliminated.
For the foregoing reasons, I respectfully dissent.
[ Footnote * ] I am baffled by the Court's suggestion that this case might be characterized as one in which garbage is being bought and sold. See ante, at 359. There is no suggestion that petitioner is making payment in order to have garbage delivered to it. Petitioner is, instead, being paid to accept the garbage of which others wish to be rid. There can be little doubt that in accepting this garbage, petitioner is also imposing environmental and other risks attendant to the waste's delivery and storage. [504 U.S. 353, 374]