424
Souter, J., dissenting
local interest without hindering the national one. 397 U. S., at 142, 145.
The primary burden Carbone attributes to flow control ordinances such as Local Law 9 is that they "prevent trash from being sent to the most cost-effective disposal facilities, and insulate the designated facility from all price competition." Brief for Petitioners 32. In this case, customers must pay $11 per ton more for dumping trash at the Clarks-town transfer station than they would pay at Carbone's facility, although this dollar figure presumably overstates the burden by disguising some differences between the two: according to its state permit, 90 percent of Carbone's waste stream comprises recyclable cardboard, while the Clarks-town facility takes all manner of less valuable waste, which it treats with state-of-the-art environmental technology not employed at Carbone's more rudimentary plant.
Fortunately, the dollar cost of the burden need not be pinpointed, its nature being more significant than its economic extent. When we look to its nature, it should be clear that the monopolistic character of Local Law 9's effects is not itself suspicious for purposes of the Commerce Clause. Although the right to compete is a hallmark of the American economy and local monopolies are subject to challenge under the century-old Sherman Act,13 the bar to monopolies (or, rather, the authority to dismember and penalize them) arises from a statutory, not a constitutional, mandate. No more than the Fourteenth Amendment, the Commerce Clause "does not enact Mr. Herbert Spencer's Social Statics . . . [or]
13 See 15 U. S. C. §§ 1 and 2. Indeed, other flow control ordinances have been challenged under the Sherman Act, although without success where municipal defendants have availed themselves of the state action exception to the antitrust laws. See Hybud Equipment Corp. v. Akron, 742 F. 2d 949 (CA6 1984); Central Iowa Refuse Systems, Inc. v. Des Moines Metropolitan Solid Waste Agency, 715 F. 2d 419 (CA8 1983). That the State of New York's Holland-Gromack Law, 1991 N. Y. Laws, ch. 569 (McKinney), authorizes Clarkstown's flow control ordinance may explain why no Sherman Act claim was made here.
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