New Jersey's concern about liability for environmental harms that may occur at sites in other states where New Jersey waste is deposited is not supported by the facts. Federal laws require all disposal sites to meet certain criteria, and New Jersey officials have concluded that the major facilities near its borders -- where it is most likely that New Jersey waste would be deposited out-of-state -- meet federal environmental standards. In addition, New Jersey certainly could develop regulations governing in-state generators' deposit of waste out-of-state, to ensure that the selected out-of-state disposal sites meet federal regulations.
Enforcement and monitoring are largely factors of cost, and New Jersey will be able to meet these goals if it is willing to fund greater efforts in these arenas. Because there are nondiscriminatory alternatives to the present waste flow regulations by which defendants can meet their legitimate local interests, the Court will enjoin defendants from further enforcement of those regulations.
The plaintiffs seek to enjoin enforcement of the waste flow control laws in New Jersey. 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.
Many of the arguments made by the defendants derive not from the lack of feasible nondiscriminatory alternatives, but from the fear that political realities will present insurmountable obstacles to effecting change. The Court recognizes the enormity of the task which Carbone I and the Third Circuit opinion in Atlantic Coast have imposed on New Jersey citizens. To scrap immediately a detailed regulatory plan implemented over the course of decades and relied upon by investors, business people, and political figures would wreak havoc on the financial and environmental well-being of New Jersey citizens. The Court must permit the relevant governmental bodies to develop the specific nondiscriminatory alternative which they wish to employ, and this development cannot be done overnight. In the past, the State rose to the challenge of developing a comprehensive waste management structure and did so in a manner meriting great praise. The Court does not doubt that given ample time, the State government can again use its ingenuity to create a nondiscriminatory alternative to the current flow control structure.
The preliminary injunction entered by the Court on November 28, 1995, against the enforcement of waste control over C&D waste will be made permanent and will continue to be enforced. In addition, the Court will grant an injunction pursuant to Fed. R. Civ. P. 65 against the enforcement of the waste flow regulations governing the remainder of New Jersey waste. Under the injunction, defendants will not be permitted to enforce the current waste flow regulations to the extent their application discriminates against interstate commerce. This injunction (other than as to C&D waste) will be stayed, however, to give the defendants sufficient time to devise the specific nondiscriminatory alternative which they choose to implement to replace the current flow control regime. The stay will be in place for two years following the date on which this case is no longer subject to the right to appeal, or is no longer pending on appeal or on Petition for Certification to the United States Supreme Court.
An appropriate Order will be issued.
July 15, 1996
JOSEPH E. IRENAS
FINAL JUDGMENT DECLARING NEW JERSEY WASTE FLOW REGULATIONS UNCONSTITUTIONAL, ENJOINING DEFENDANTS FROM ENFORCEMENT OF THE REGULATIONS, MAKING PRELIMINARY INJUNCTION OVER C&D WASTE PERMANENT, STAYING INJUNCTION EXCEPT AS TO C&D WASTE, AND DENYING ALL CLAIMS FOR MONETARY DAMAGES
IRENAS, District Judge:
For the reasons stated in an Opinion issued on even date herewith, IT IS, on this 15th day of July, 1996, ORDERED THAT:
1. FINAL JUDGMENT is here entered in favor of the Plaintiffs and against the Defendants declaring that those portions of the New Jersey waste flow regulations, as set out in the New Jersey Solid Waste Management Act, N.J.S.A. 13:1E-1 to - 207, the Solid Waste Utility Control Act, N.J.S.A. 48:13A-1 et seq., and regulations promulgated thereunder, N.J.A.C. 7:26-1.1 et seq., are unconstitutional to the extent that they discriminate against interstate commerce by operating to deprive out-of-state disposal facilities the opportunity to compete for New Jersey disposal business.
2. An INJUNCTION is hereby entered pursuant to Fed. R. Civ. P. 65 against enforcement of the New Jersey waste flow regulations to the extent these regulations discriminate against interstate commerce as determined in the first decretal paragraph of this Final Judgment.
3. Pursuant to Fed. R. Civ. P. 62 and the discretion of this Court, the INJUNCTION shall be STAYED for two years following the date on which this case is no longer subject to a right of appeal, or is no longer pending on appeal or on Petition for Certification to the United States Supreme Court.
4. The PRELIMINARY INJUNCTION governing only flow control of construction and demolition ("C&D") waste in New Jersey, entered by this Court on November 28, 1995, is hereby made PERMANENT, and to the extent that the Court's INJUNCTION governs C&D waste it shall not be stayed. The Court's Order of November 28, 1995, requiring the plaintiffs to post a bond required by Fed. R. Civ. P. 65(c) is hereby VACATED.
5. FINAL JUDGMENT in favor of the Defendants and against the Plaintiffs is hereby entered on all claims for monetary damages.
6. All applications for counsel fees and costs shall be filed with the court not later than August 12, 1996.
JOSEPH E. IRENAS