428
Souter, J., dissenting
we can confidently say that the only business lost as a result of this ordinance is business lost in Clarkstown, as customers who had used Carbone's facility drift away in response to any higher fees Carbone may have to institute to afford its share of city services; but business lost in Clarkstown as a result of a Clarkstown ordinance is not a burden that offends the Constitution.
This skepticism that protectionism is afoot here is confirmed again when we examine the governmental interests apparently served by the local law. As mentioned already, the State and its municipalities need prompt, sanitary trash processing, which is imperative whether or not the private market sees fit to serve this need at an affordable price and to continue doing so dependably into the future. The state and local governments also have a substantial interest in the flow-control feature to minimize the risk of financing this service, for while there may be an element of exaggeration in the statement that "[r]esource recovery facilities cannot be built unless they are guaranteed a supply of discarded material," H. R. Rep. No. 94-1491, p. 10 (1976), there is no question that a "put or pay" contract of the type Clarkstown signed will be a significant inducement to accept municipal responsibility to guarantee efficiency and sanitation in trash processing. Waste disposal with minimal environmental damage requires serious capital investment, id., at 34, and there are limits on any municipality's ability to incur debt or
ex rel. Sullivan, 325 U. S. 761, 779 (1945) (Arizona statute limiting length of trains "affords at most slight and dubious advantage, if any" with respect to safety). Here, in contrast, we will see that the municipality's interests are substantial and that the alternative means for advancing them are less desirable and potentially as disruptive of interstate commerce. Finally, in any conflict between flow control that reaches only waste within its jurisdiction and flow control that reaches beyond (requiring waste originating locally to be returned after processing elsewhere), it may be the latter that should give way for regulating conduct occuring wholly out of State. See Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573, 580-582 (1986).
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