420
Souter, J., dissenting
78 percent of landfills receiving municipal solid waste are owned by local governments. See U. S. Environmental Protection Agency, Resource Conservation and Recovery Act, Subtitle D Study: Phase 1 Report, p. 4-7 (Oct. 1986) (Table 4-2). The National Government provides "technical and financial assistance to States or regional authorities for comprehensive planning" with regard to the disposal of solid waste, 42 U. S. C. § 6941, and the State of New York authorizes local governments to prepare such management plans for the proper disposal of all solid waste generated within their jurisdictions, N. Y. Envir. Conserv. Law § 27-0107 (Mc-Kinney Supp. 1994). These general provisions underlie Clarkstown's more specific obligation (under its consent decree with the New York State Department of Environmental Conservation) to establish a transfer station in place of the old town dump, and it is to finance this transfer station that Local Law 9 was passed.
The majority ignores this distinction between public and private enterprise, equating Local Law 9's "hoard[ing]" of solid waste for the municipal transfer station with the design and effect of ordinances that restrict access to local markets for the benefit of local private firms. Ante, at 392. But private businesses, whether local or out of State, first serve the
nor to other designated places." M. Goodwin, Dutch and English on the Hudson 105 (1977 ed.).
Indeed, some communities have employed flow control ordinances in pursuit of these goals, ordinances this Court has twice upheld against constitutional attack. See California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306 (1905) (upholding against a takings challenge an ordinance requiring that all garbage in San Francisco be disposed of, for a fee, at facilities belonging to F. E. Sharon); Gardner v. Michigan, 199 U. S. 325 (1905) (upholding against due process challenge an ordinance requiring that all garbage in Detroit be collected and disposed of by a single city contractor). It is not mere inattention that has left these fine old cases free from subsequent aspersion, for they illustrate that even at the height of the Lochner era the Court recognized that for municipalities struggling to abate their garbage problems, the Constitution did not require unimpeded private enterprise.
Page: Index Previous 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 NextLast modified: October 4, 2007