Webinar Essay Series

WEBINAR ESSAY SERIES

CONSTITUTIONAL LAW ESSAY #2

MODEL ANSWER

City, a municipality in State X, owns and operates a landfill site for household and commercial non-hazardous waste disposal. City finances this operation by charging fees based on a rate formula involving the weight and volume of waste delivered at the site. City's landfill is relatively new and therefore has substantial unused capacity.

Outko, an out-of-state trucking firm engaged in hauling non-hazardous waste, has entered into contracts with various out-of-state municipalities to transport their nonhazardous wastes for disposal to City's landfill. Inko, a State X trucking firm with its offices in City, has been hauling non-hazardous waste from sources within City, from elsewhere in State X, and from outside of State X, to City's landfill for disposal.

City has recently enacted an ordinance banning disposal of out-of-state waste in City's landfill and imposing a new rate fee for waste from sources anywhere outside of City, but within State X. This new rate fee is twice that charged for waste of identical weight and volume from sources within City.

The National Association of Waste Truckers (NAWT) is an organization representing waste haulers. Both Outko and Inko are members of NAWT. On behalf of all of its members, NAWT plans to bring an action against City in federal district court in State X, challenging the constitutionality of the landfill ordinance.

1. What challenges, if any, under the U.S. Constitution, may be brought against City's landfill ordinance, and how should each be decided? Discuss.

2. May NAWT properly assert those challenges? Discuss.

1. What challenges, if any, under the U.S. Constitution, may be brought against City's landfill ordinance, and how should each be decided? Discuss.

DORMANT COMMERCE CLAUSE.

The City's landfill ordinance must be upheld as a valid exercise under the 10th Amendment's police power to regulate in the interests of its citizen's health, safety, and welfare, unless there is a federal constitutional principle that limits the state's ability to so regulate or there is no rational basis for the regulation. States and municipalities may regulate local aspects of interstate commerce, but such state regulations may not favor local economic interests, or unduly burden interstate commerce. A regulation will be deemed to be unconstitutional under a balancing test, where the burden on interstate commerce exceeds the benefits of the regulation, unless the regulation is necessary to achieve an important governmental purpose and there are no less discriminatory alternatives. Corporations and aliens may sue under the dormant commerce clause.

The hauling and disposal of non-hazardous wastes involves interstate commerce, because the highways and byways used to transport such waste are instrumentalities of interstate commerce. Here, there appears to be discrimination against out of state interests by City,in the form of a doubled fee charged for the waste dumped in City's landfill. City has evaluated the situation, and has determined its own rate structure should benefit City residents, as against out-of-city residents. Therefore, there appears to be a burden on interstate commerce that is significant, which outweighs the benefit to the community, inasmuch as there is plenty of unused capacity at the landfill.

It is possible that City is preserving use of its landfill, for the use of the residents well into the future. If this were a toxic landfill, this argument might hold. However, the landfill is for household and non-hazardous waste, which is a type of landfill that occurs throughout the United States. The substantial unused capacity indicates that there is no important governmental purpose to the double rate charged to those outside of City.

MARKET PARTICIPATION EXCEPTION.

However, City appears to be acting as a market participant, and the regulation is incidental to its operation of a business. Where a state or local government is involved in the market, it may favor its own residents when buying or selling, when giving subsidies, or when hiring employees, because the state taxpayers have acted to fund these programs.

Out-of-state wastes are banned completely. However, it is probable that preferential status given to local waste is substantially related to the interest of having a landfill area available for many years to come. As stated earlier, the City is probably looking forward to its own expansion, and will need the landfill well into the future, to meet the needs of its own citizens. As a market participant City should be allowed to determine which transactions it wants to undertake. As a market participant, just as any seller can choose who to sell his or her products to, City can make the same determination. A challenge to the ordinance as a violation of the dormant commerce clause on the grounds that it is discriminatory will fail.

FEDERAL PRE-EMPTION UNDER THE SUPREMACY CLAUSE.The Supremacy Clause provides that the Constitution and federal law are the supreme law of the United State of America. The Constitution and federal laws will preempt state and local laws when there is express or implied preemption. The states may not regulate or directly tax federal government activity, but indirect taxes are allowable if they do not unreasonably burden the federal government. There does not appear to be a compulsory federal statutory scheme. Thus, a challenge under the supremacy clause would fail. Where Congress has not preempted a field of regulation in commerce, the states are free to regulate so long as the state's regulations does not discriminate against interstate commerce nor unduly burden interstate commerce. But again, because there is no stated federal regulation, there is nothing for City to preempt.

EQUAL PROTECTION. The regulation categorized people, and treats them differently, based upon where they live. Thus, it may be violative of equal protection. However, the level of review in this instance, does not constitute a fundamental right, or require even a heightened level of review, but mere rationality, and the regulation must be reasonably related to a legitimate government purpose. The preservation of waste disposal space is a legitimate government purpose, and limiting the waste disposal is legitimate, therefore, an equal protection claim will fail.

CONTRACTS CLAUSE.City's regulation impaired the existing contracts Outko had with various out-of-state municipalities. Strict scrutiny is applied when a governmental is a party to the contract which the regulation now has impaired. However, where a state or local regulation substantially impairs the rights of a party under a current private contract, the legislation must only be reasonable and narrowly tailored to promote an important and legitimate governmental interest.

Here Outko has entered contracts with out-of-state municipalities for the transport of waste to City's landfill, and thus the regulation appears to interfere with their contracts. City was not involved in the contracts, and therefore only a rational basis test is used, and the ordinance must be rationally related to achieve a legitimate government purpose. Here, as stated above, that standard is met, and this claim will fail.

ARTICLE IV PRIVILEGES AND IMMUNITIES.

States cannot discriminate against citizens of other states as related to fundamental right. However, there are no fundamental rights involved in this situation, and this claim will fail.

2. May NAWT properly assert those challenges? Discuss.

JUSTICABILITY. Under Article III, Section 2, of the United States Constitution, in order to be justicable, claims must present a real, live case or controversy. Mere political questions or advisory opinions will not be heard by a federal court. NAWT, through its agents, has suffered damage to its contracts, and because of the rate structure of City.

STANDING. Standing of a plaintiff requires: injury in fact, causation, individuation, and redressiblity. Here, NAWT is an association, and will have standing to suewhere the members of the organization would have standing to sue, the interests to be litigated are germane to the organizational purpose, and neither the claim nor the relief require participation of the individual members of the organization.

1. Members' Individual Standing. All members must have standing individually for the association to have standing. Here, NAWT represents waste handlers Outco and Inco, who have been injured as a result of the regulation, due to contract damage and higher rate structures.

2. Germane to Association Purpose. The Association was formed to protect the rights of waste handlers, and to promote the business interests of members such as INCO and OUTCO.

3. No IndividualParticipation. Determination of the constitutionality of the actions of City, will not require participation of the INCO and OUTCO, inasmuch as the salient activity in question relates not to them, but to the actions of City, in raising the rates, and in setting limits on waste disposal. However, Inco has an office in City, while Outco has offices out-of-state. It is possible that their claims differ in a substantial way, as per their dormant commerce clause claims, and their privileges and immunities claims. Therefore, they should be required to file claims independently of NAWT.

STATE ACTION. A government actor must have caused the Constitutional abrogation to plaintiff, because Constitutional liberties apply to protection against governmental action. Here, City is the government entity that potentially caused harm to the plaintiffs.

CONCLUSION. It is likely that the individual claims of the plaintiff's differ enough, that each should file their own claims independent of NAWT, and that NAWT will not be able to establish organizational standing.