In a July 15, 1996 decision, the United States District Court for the District of New Jersey concluded that the State's solid waste flow control rules violate the Commerce Clause of the United States Constitution. As a result, the court in Atlantic Coast Demolition and Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County made permanent the preliminary injunction entered in late 1995 against the enforcement of the flow control regulations governing construction and demolition waste, and added a permanent injunction against the remaining flow control rules. Emergency regulations for construction and demolition waste control already were adopted by the New Jersey Department of Environmental Protection ("NJDEP") on January 29, 1996 in response to the 1995 preliminary injunction. (See Environmental UPDATE, March 1996, at 3.) The court stayed the injunction for non-construction and demolition waste for two years beyond any appeals, however, to allow New Jersey sufficient time to devise a nondiscriminatory replacement for the current flow control system.
In Atlantic Coast, the owner of a waste processing facility in Philadelphia contended that the State's statutes and regulations impermissibly restricted access to markets in New Jersey. During the prior phase of the litigation, the United States Court of Appeals for the Third Circuit had ruled that the regulations were discriminatory and directed the district court to make the constitutionally-mandated "heightened scrutiny" determination of whether the regulations serve a legitimate local purpose that cannot be served as well by nondiscriminatory means. Upon applying that standard, the district court stated: "As defendants have failed to prove that the goals of flow control cannot be met adequately by a nondiscriminatory alternative, the court must conclude that New Jersey's system of flow control of waste violates the Commerce Clause of the United States Constitution."
Thus far, the State of New Jersey and at least four counties have filed appeals from the Atlantic Coast decision. If the court's holding withstands these challenges, the next set of solid waste flow rules implemented by NJDEP are expected to increase the alternatives available for the disposal of solid waste, and lead to lower disposal costs from improved competition. These benefits may arise relatively soon for companies disposing of construction and demolition waste because NJDEP already has adopted revised regulations for that type of solid waste.
