Waste & the Dormant
A Reply to Professor Richard
Jonathan H. Adler*
3 Green Bag 2d 353
[Note: This article is a response to Prof. Richard Epstein’s article
“Waste & the Dormant Commerce Clause,” 3 Green Bag 2d 29
(1999). Prof. Epstein’s response
appears at 3 Green Bag 2d 363.]
In Waste & the Dormant Commerce Clause, 1 Professor Richard Epstein suggests that unobstructed
interstate commerce is not always such a good thing. Curiously departing from
the libertarian leanings that guide most of his work, Epstein cites externalities as a
justification for a departure from the default rule against barriers to
interstate trade. His argument challenges the practical value of the dormant
commerce clause’s prohibition on state obstructions to interstate commerce in
“bads.” In particular, Epstein
suggests that City of Philadelphia v. New Jersey 2 and subsequent Court
decisions 3 invalidating state efforts to limit or suppress shipments of
out-of-state waste have produced less-than-optimal results. All may not be
right with waste markets, but the alternative Epstein proposes would be worse.
I have no quarrel with Epstein’s
characterization of the Supreme Court’s dormant commerce clause jurisprudence.
The Court’s shifting coalitions provide a poor foundry for the forging of
doctrinal consistency. Left alone for decades, it becomes increasingly
difficult to restore a doctrine’s textual moorings. But I must object to Epstein’s suggestion that applying
the Court’s default rule against protectionist and exclusionary state
regulations to interstate commerce in “bads” generates substantial
uncompensated losses that nondiscriminatory measures are unable to address.
Allowing buyers and sellers to exchange money for goods and services generates
a positive sum game even when the provision of the desired good or service
generates an imperfectly controlled externality. This is as true for waste as
it is for widgets. The arguments Epstein
marshals against the dormant commerce clause’s nondiscrimination norm, if
accepted, can be applied with equal force against all manner of products that
are sold across state lines. All economic activity is capable of generating
externalities, and not all externalities are, or will be, controlled. Yet this
provides no basis for compromising free trade principles. The empirical
operation of waste management markets suggests Epstein’s concerns are unwarranted; the theoretical
failings of an unobstructed national market in waste management services have
not materialized. Epstein’s
thesis, while provocative, does not undermine the value of the
nondiscrimination default rule that underlies current dormant commerce clause
Taking the “Goods” with the “Bads”
The mutual gains from trade provide the economic justification for the dormant
commerce clause. Keeping the channels of interstate commerce clear of
state-erected obstructions benefits the nation by enlarging the number of
positive-sum exchanges which can occur. Allowing states to erect protectionist
barriers risks economic balkanization and substantial wealth foregone. For this
reason, the Supreme Court has voided protectionist state measures time and
accepts this formulation in the context of “goods,” that is those items for
which individuals and communities are willing to exchange money. In the context
of “bads,” however, and waste in particular, Epstein is not so sure that the free trade principles
should apply. The analytical distinction between “goods” and “bads” is not as
clear as Epstein
implies. For one thing, one man’s trash is another’s treasure. Many items that
are disposed of as waste in one sector of the economy are reclaimed and
recycled elsewhere as a good. 4 For another, commerce in waste (a “bad”) can
just as easily be conceived as commerce in waste management services (a
“good”). The economics are the same. The only difference is the reversal of the
flow of physical material. Such a difference hardly justifies a new legal
Epstein suggests that
one reason for limiting the importation of out-of-state waste is that waste
disposal capacity is a scarce resource, and that the importation of waste will
make it more difficult for local residents to dispose of their own waste.
Allowing a national market, Epstein
argues, “strains local facilities” and prevents local economies from
maintaining a “balance” between waste management supply and demand. 5 This
argument implies that an autarky in waste disposal services might be preferable
to the current free trade regime. Yet encouraging self-sufficiency in waste
management makes no more sense than calls for any other sort of economic isolation.
As James DeLong observes, there is no more basis for insisting that New Yorkers
dispose of all their trash within the state than there is for mandating that
they grow all their vegetables in Central Park. 6
Consider the implications of Epstein’s
thesis were it applied to the production of steel. Assume that a local steel
plant meets all of the local community’s need for steel. If that plant is
allowed to sell steel to other communities as well, the home community will now
face greater competition in seeking to purchase steel. In the short run, the
home community may have a harder time meeting its needs as out-of-state
purchasers drive up the price and consume this “scarce” resource. Does this
justify a limitation on the nondiscrimination rule? Of course not.
None of us fears that allowing local steel mills to participate in national
markets risks a steel shortage. Indeed, we expect existing producers to expand
production, or new producers to enter the market. We also expect specialization
in a national market to increase productivity and reduce the marginal costs of
production, benefitting local communities and out-of-state purchasers alike.
Insofar as there are economies of scale in steel production, we would also
expect a larger steel plant serving a larger market to meet market demands at a
lower per-unit price than small, localized mills in each community. In short,
allowing a national market in steel benefits the home community just as it
benefits those out-of-state that wish to purchase the good.
The same can be said for waste disposal. As demand increases, private firms
will respond by increasing waste management capacity. In addition, the
economies of scale in waste management decisively favor larger facilities,
which can provide waste management services at substantially lower costs (and
superior environmental performance) than the town dumps of yore, even when
long-distance hauling costs are included. Indeed, modern regional “megafills”
can handle waste at less than one-third the cost of older local landfills. 7
This explains why the citizens of Charles County, Virginia - when given the
choice - opted to host a regional landfill rather than a local one. 8 As a
practical matter, limiting interstate trade in waste management services is
likely to force all communities to pay more for disposal. Balkanizing trade
increases the costs to all involved. Noting there are regulatory obstacles to
the siting of new landfills or other disposal facilities proves nothing at all,
for new steel mills and other productive facilities must also run “a gauntlet
of regulation from every level of government.” 9
Waste is hardly the only “bad” that could be impacted by Epstein’s proposal. The Mayo Clinic
in Rochester, Minnesota, is open to patients from around the nation. It can be
viewed as a participant in a market for “goods” (health care services) or
“bads” (illness). The provision of its services to all comers, irrespective of
their origin, serves as a magnet for “bads,” in this case sick people instead
of waste. Under Epstein’s
analysis, allowing the clinic to serve out-of-state patients at the same rates
as locals is bad for residents of Rochester, who now face competition in
seeking to meet their own medical needs with “scarce” local resources. They
even face the potential of uncompensated externalities in the form of
contagious disease. Does this mean that the state of Minnesota should be
allowed to impose a differential tax on the ill and infirm with the misfortune
to live outside of the state? I would hope not.
The Problem with Externalities
justification for legislation to authorize states to deviate from the
nondiscrimination norm is the presence of externalities. In Epstein’s words, “waste creates
losses.” 10 Yet this is true of all economic activity, particularly production.
Gold mining, hog farming, and semiconductor production are all capable of
generating externalities as great, if not greater, than the average landfill.
11 That an activity generates externalities, and that these externalities may
not be perfectly controlled by government regulation of common law nuisance
remedies, is hardly cause for limiting interstate commerce. Indeed, limiting
commerce is a rather indirect and inefficient means of addressing externality
concerns, particularly when more direct and non-discriminatory means are
available, ranging from direct government regulation or fee systems to nuisance
In theory, the present nondiscrimination default rule could increase the local
externalities generated by waste management as facilities increase in size. A
larger landfill might generate more odors or greater levels of groundwater
contamination. 12 To Epstein,
this is cause for concern because the importing state is subject to a greater
level of externalities than would be generated by that state’s waste alone. But
once again we must ask whether the production of goods is any different. That a
community may be subject to increased particulate emissions from the operation
of a steel plant is no argument for limiting interstate commerce in steel.
As a general rule, a small steel mill that only produces steel for local use
will impose fewer externalities than an equivalent, albeit larger, mill that
produces steel for a national market. As market specialization increases, it
may well be that steel production becomes concentrated in a small handful of
communities that become subject to a wide array of environmental effects.
Woburn, Massachusetts, for example, suffered substantial water contamination in
no small part because it was home to numerous tanneries that served a national
market. The proper response to these concerns is for the home states, or the
home communities, to adopt policies that control the externalities of steel
production without erecting discriminatory barriers to commerce, insofar as the
steel mills do not already compensate the local communities with offsetting
In Dean Milk Co. v. Madison, as Epstein
recounts, the Supreme Court voided an ordinance that imposed a local bottling
requirement on all pasteurized milk sold in the city. 13 Although the city
claimed a public health rationale for the ordinance, the Court struck it down,
citing the availability of “reasonable nondiscriminatory alternatives.” 14
Whether milk is safe to drink has little to do with whether it is bottled
within five miles of downtown Madison, Wisconsin. By the same token, the
noxiousness or toxicity of waste has absolutely nothing to do with how far it
travels. If local communities are subjected to externalities for which they do
not receive compensation - a debatable proposition as discussed below - they
are fully capable of imposing restrictions on waste management within their
jurisdictions, or even prohibiting it altogether. Nothing in the dormant
commerce clause requires any state to permit any waste disposal within its
There is also something incongruous in arguing that states that fail to adopt
nondiscriminatory measures to control pollution problems should be “rewarded”
with the power to enact economically harmful, if politically popular,
restrictions on interstate commerce. By what faith should we assume that states
are likely to enact optimal restrictions on out-of-state waste shipments if
they are unable to adopt optimal, or even passably sufficient, protections for
local citizens? If anything, we would expect states to do a better job at
enacting and implementing local regulatory regimes due to the prevalence of
local knowledge and because those that bear the costs of the regulatory regime
are reasonably close to those who reap the benefits. Discriminatory trade
restrictions, on the other hand, impose a substantial share of their costs on
outsiders, reducing the check on excessive government intervention.
A far greater legal scholar than I has argued that there is no need to address
cases in which property owners pollute their own lands. 15 By the same token,
there is no cause to empower state governments to second guess the decision of
private landowners or, as is more likely the case given existing zoning and
land-use regimes, local communities to host waste management facilities in
return for economic compensation. Insofar as the facility imposes uncompensated
harms, the locals have every incentive to address them. “Where pollution harms
its creator, a built-in mechanism of self-correction limits its extent. The
polluter bears both the benefits and the costs of pollution and has every
incentive to maximize the net benefits from the use of the land.” 16 By the
same token, when a local community negotiates with a waste management company
over siting a new facility, it is more likely than any other party to ensure
that concerns about local harms are addressed. There is no reason to fear a
“race to the bottom” in the siting of waste management facilities. 17
Speaking of great legal scholars, Ronald H. Coase, in The Firm, the Market, and
the Law, explained why “the mere existence of
“externalities’ does not of itself provide any reason for governmental
intervention,” as such externalities are “ubiquitous.” 18 Coase noted that,
because government action itself entails costs, the existence of identifiable
externalities should not by itself justify government intervention. 19 In an
open market, those communities that are subject to the externalities of waste
disposal are likely to be compensated for any harms to which they are subject.
Even if they are under-compensated, it is doubtful that governmental
limitations on interstate trade in waste management services would generate
sufficient gains to offset the resulting economic losses.
Getting Down & Dirty
Even if one were to accept in theory (as I do not) that “the free movement of
waste across state boundaries need not have the same desirable overall
consequences as the free shipment of goods,” 20 it makes little sense to
abandon the presumption against state protectionism when a wealth of empirical
evidence can be brought to bear. Stories on the horrors of waste may well be
“legion,” but the reality is much more mundane. Waste is handled without difficulty
throughout most of the nation. Where problems exist, state intervention - not
an unconstrained market - is typically to blame. 21 The non-discrimination norm
has yielded tremendous benefits to exporting and importing states alike.
America generates approximately 200 million tons of municipal solid waste per
year. This may seem like quite a bit - enough to fill a convoy of garbage
trucks reaching halfway to the moon according to the Environmental Protection
Agency 22 - but all this waste can be readily managed without much difficulty
at all. Indeed, at current rates, a single 300-foot-deep landfill less than 30
square miles in area could handle all the municipal solid waste generated in
this nation for the next thousand years. 23 In other words, all the land that
is required to contain a millennium’s worth of garbage would consume less than
one-tenth of one percent of the continental United States. The deployment of
existing compaction and land reclamation techniques could reduce the required
area even further, as will advances in recycling and source reduction.
Such reassuring information is broadcast infrequently: “world won’t end
tomorrow” rarely makes the evening news, while apocalyptic scenarios are
broadcast with regularity. The late 1980s saw numerous reports of a waste
disposal “crisis”; Newsweek, for one, claimed Americans would be “Buried Alive”
by a mountain of garbage. 24 Existing landfills were closing, and few new
facilities were opening to take their place. Like many tales of impending
environmental doom, these tales were much ado about nothing. The number of
landfills was declining in the 1980s, but capacity was expanding. The economies
of scale in the waste management industry began to favor larger facilities, a
trend that was reinforced by tightened regulatory requirements on waste
disposal. Local dumps, the sort of noxious, smelly facilities that dominated
the waste management industry for years, were rapidly being displaced by modern
sanitary landfills that entomb wastes for centuries. As noted above, these
economies of scale benefit consumers by reducing the marginal economic costs of
waste disposal services, but they reduce the marginal environmental costs as
well. It is easier to monitor and control the externalities of a few larger
facilities than thousands of local dumps.
Solid waste that is exported from one state to another may be a relatively
small portion of all the waste generated - less than 10 percent in 1997 - but
nearly every state is both an importer and an exporter of waste. 25 These
markets are also highly dynamic. A net-importing state one year will not
necessarily be a net importer the next. Indeed, the Supreme Court’s definitive
application of dormant commerce clause principles to solid waste arose from a
suit by New Jersey to prevent the importation of waste from Pennsylvania.
Today, the waste flows in the opposite direction, and Pennsylvania is one of
the largest waste importers in the nation. 26
Because the viability of larger facilities is partly dependent upon access to
larger markets, it actually has become easier for local communities to dispose
of locally generated wastes, with less environmental harm, than it would have
been had the Supreme Court endorsed the balkanization of waste disposal markets
or had Congress enacted the policies Epstein
suggests. In other words, to the extent we can tell, unimpeded interstate
commerce in waste management services has not led to “system-wide national
shortages of waste disposal sites.” 27 Perversely, state protectionism, and the
consequent welfare losses, could have just that effect.
What Uncompensated Harms?
Epstein paints a
picture of poor, set-upon communities burdened by the presence of
externality-spewing waste management facilities. These communities, in Epstein’s analysis, are subject to
the “uncompensated harm” of having to dispose of others’ waste. 28
Interestingly enough, many of these communities do not feel the same way. Many
local communities across the nation welcome modern waste management facilities
as a source of jobs, tax revenue, and economic development as eagerly as they
would a new automobile plant or office building. Whatever externalities are
involved, these communities feel that they are well compensated for their
trouble. Occasional abuses, facilitated by inadequate protection of property
rights against nuisances and state expropriations, is no reason to jettison the
system. Moreover, nothing Epstein
proposes in his article would address these concerns. If anything, by limiting
waste disposal options, they will make these problems worse as political
entities feel more compelled to impose waste “solutions” on local citizens.
There are communities infected by a NIMBY (Not-In-My-Backyard) attitude toward
waste disposal. But this is true for factories and office buildings as well.
Few, if any, forms of development are universally welcome in every community
across the land. All forms of development produce measurable externalities. It
is impossible to know ex ante whether there will be sufficient offsetting
benefits to compensate the host community in each isolated case. But I would
think that Epstein
would agree that the sentiment of the community itself - and not the political
interests of state-wide elected officials - is a reasonable indicator of
whether the externalities are adequately controlled or compensated. After all,
where the costs of a given activity are borne by the parties that reap the
benefits, there is no cause for government intervention, particularly when
there is consent.
Host communities today receive millions of dollars for schools, infrastructure,
tax relief, and environmental monitoring that more than offset any
externalities that the facilities produce. 29 They are also more involved in
siting decisions than in the past when many older, and more polluting,
facilities were created. As a result, the market for “hosting” landfills and
other facilities is highly competitive, such that some communities that desire
such facilities are left out and those in which facilities are sited are
heavily compensated. Limiting the importation of waste from other states,
however, puts these benefits at risk.
That there is political opposition to waste importation does not mean it is
motivated by a general concern about externalities in host communities. As Epstein himself acknowledges, much
of the political opposition to the interstate waste trade is focused on the
transportation of waste, not its eventual disposal. 30 Governor Christie Whitman
of New Jersey assailed New York Mayor Rudolph Giuliani’s plan to send waste
south on I-95 even though it was headed for Virginia. In Virginia itself, where
I live, there is substantial opposition in much of the state to the importation
of trash from New York and other places (but especially New York). Yet most of
this opposition is against the transportation of waste through communities that
are not direct recipients of the waste disposal fees; little opposition comes
from the communities where the waste is destined to end up. This issue has
played out like environmental justice in reverse: Poor, disproportionately
minority communities feel that the economic benefits of hosting modern sanitary
landfills more than outweigh the externalities in those communities. Virginians
who oppose garbage barges from the Big Apple seem more concerned about the
“status” implications of accepting New York’s waste than the purported
externalities faced by local residents.
New Jersey and non-host communities in Virginia could plausibly argue that
interstate transportation of waste creates externalities for which the states’
residents are not directly compensated. Epstein
dismisses this concern, however, as New Jerseyans, like the rest of us, are
compensated indirectly by the maintenance of unimpeded interstate
transportation of goods. While I share this view, it is hard to square with Epstein’s underlying analysis, for
the externalities generated by waste transportation are more severe, and less
likely to be directly compensated for, than those of disposal itself. Of
course, in the case of transportation, as with disposal itself, externalities
can be more effectively addressed through direct, non-discriminatory
regulation. There is no need to abandon free trade.
No Solace at Home or Abroad
Epstein seeks “strong
evidence” for his position in the circumstances that led to the passage of the
Low-Level Radioactive Waste Policy Amendments (LRWPA), but it is not there. The
LRWPA were initially enacted in 1980 when one of the nation’s few disposal
facilities for this sort of waste announced it would cut the volume of waste it
accepted in half. This led to concerns that disposal capacity for low-level
radioactive waste would rapidly disappear. Rather than allow a market response,
in the form of higher disposal prices that would drive down waste generation
and encourage the creation of additional supply, the governors banded together
and sought to have Congress impose a solution upon them.
An “anticipated shortage” in disposal facilities almost led to the enactment of
a national regulatory regime for the management of solid waste as well. As we
have seen, the “crisis” was ephemeral, and the marketplace - aided by the
nondiscrimination default rule - “operated in the sensible fashion postulated
by its defenders.” 31 There is no reason to believe that the situation with
low-level radioactive waste would have been any different had Congress simply
stayed its course. As it happened, the LRWPA, by pushing states to create their
own sites, is leading to a surplus. Less than 40,000 tons of low-level
radioactive waste is produced each year. 32 This is about how much trash a
small landfill can handle. As a result, a single site could meet the nation’s
needs. The only reason for multiple sites is to reduce the externalities
generated by transport. Yet, as Epstein
concedes, such concerns cannot justify a departure from the nondiscrimination
Nor is there reason to believe that low-level radioactive waste is
fundamentally different from the more mundane waste that pours into most
landfills. As wastes become more dangerous, or are perceived as such by the
public at large, the costs of disposal will increase until the waste-generating
communities and companies are willing to compensate recipient communities
enough for the risks and costs of disposal. In the alternative, waste
generators will simply produce less waste, and indeed this has occurred as the
cost of disposal has increased. 33 Increased disposal costs will also induce the
entry of new disposal firms. A private firm in Utah sought to do just that by
converting a uranium mill tailing disposal site into a low-level radioactive
waste facility. Interestingly enough, the operator of an existing disposal site
sued to stop it. 34 This is further evidence that any shortage of disposal
space is political, and not economic, in origin.
Even were low-level radioactive waste a special case, this would hardly justify
discarding the presumption that states should be barred from discriminating
against out-of-state “bads.” Radioactive waste represents but a miniscule
fraction of the “bads” voluntarily exchanged across state lines. Carving out an
exception for such extreme cases would do far less damage to national markets
than the proposal which Epstein
suggests. Yet even this may concede too much, as the history of low-level
radioactive waste disposal suggests, where interstate markets are allowed to
work, there is little cause for such interventions.
In closing, Epstein
curiously points to the experience of the European Union to reinforce his
suggestion that interstate commerce in waste services is different than that in
widgets. It is true that the E.U. has adopted principles that encourage states
to manage their own waste, but this hardly reinforces the case for
discrimination. The “self sufficiency” that the E.U. seeks to encourage is part
of a larger regulatory system that holds companies responsible for the eventual
disposal of the products that they sell. This system, while it has some
eco-populist appeal, is notorious for its economic insanity and inefficiency.
35 More importantly, the E.U. is hardly a paragon of unregulated commerce, and
has embraced “precautionary” restrictions on trade in all sorts of unqualified
goods to satisfy protectionist and ideological impulses. That the E.U. has also
taken steps toward an autarkic waste management regime, if anything, suggests
that my friend has strayed quite far off course.
In the end, Richard Epstein’s
analysis of interstate commerce in waste is questionable on analytical and
empirical grounds. A doctrine which disposes of the default rule out of
putative concern for insufficiently addressed externalities is untenable. Such
an approach to interstate commerce undermines the default nondiscrimination
rule for “goods” as surely as it does for “bads.” The unpleasant nature of
waste disposal should not obscure the fact that autarky is economically
wasteful and socially unwise. A dormant commerce clause doctrine that maintains
an unobstructed national market in all manner of goods and services may be
textually unsound, but it is economically and environmentally wise. Robust
interstate markets in waste management services provide abundant benefits, even
to those left holding the trash bags. Allowing states to restrict the flow of
garbage at their borders would be a exercise in wasteful lawmaking.
* Jonathan H.
Adler (firstname.lastname@example.org) is a senior
fellow in environmental policy at the Competitive Enterprise Institute, and the
editor of Ecology, Liberty & Property: A Free Market Environmental
Reader (2000). Jeffrey B. Clark, Michael Greve, Sam Kazman, and Angela
Logomasini provided helpful comments on an earlier draft.
1. Richard A. Epstein,
Waste & the Dormant Commerce Clause, 3 GREEN BAG 2D 29 (1999).
2. 437 U.S. 617 (1978).
3. See, e.g., Oregon Waste Systems v. Department of Environmental Quality, 511
U.S. 93 (1994); Chemical Waste Management v. Hunt, 504 U.S. 334 (1992).
4. It is not sufficient to simply claim that those items which are, or can be,
reclaimed are no longer “bads,” as many such goods can generate the sorts of
externalities with which Epstein
is concerned. Indeed, the Environmental Protection Agency has sought to
regulate many residuals as waste despite their potential for reuse. See, e.g.,
Association of Battery Recyclers v. EPA, 208 F.3d 1047 (D.C. Cir. 2000).
Moreover, treating “bads” differently than “goods” can prevent today’s “bads”
from ever being put into productive use as “goods” in the future. See, e.g., Jonathan H. Adler, The Hazards of Regulating
Hazardous Waste, REGULATION (Spring 1993).
5. Epstein, supra note
1, at 35-36.
6. James V. DeLong, Of Mountains and Molehills: The Municipal Solid Waste
“Crisis”, BROOKINGS REV. 34 (Spring 1994).
7. In 1994, the National Solid Waste Management Association estimated costs of
$ 50 to $ 100 per ton for a 250-ton-a-day landfill, and only $ 14 to $ 30 per
ton for a 3,000-ton-a-day landfill. DeLong, supra note 6, at 36.
8. Angela Logomasini, Trashing the Poor: The Interstate Garbage Dispute 3
(Competitive Enterprise Institute, August 1999).
supra note 1, at 36.
10. Epstein, supra
note 1, at 35.
11. Indeed, the operation of modern landfills, as opposed to
old-fashioned dumps or even older landfills such as New York’s infamous Fresh
Kills, produces relatively minimal externalities to host communities. A study
of landfills in operation in 1991, many of which were not yet subject to
existing regulatory standards, found that only 5 percent of landfills in
operation at the time posed a one in 100,000 or greater risk of cancer; 60
percent of landfills posed only a one in ten billion risk. Nearly all modern
landfills fall in this latter category. See Jennifer Chilton & Kenneth
Chilton, A Critique of Risk Modeling and Risk Assessment of Municipal Landfills
Based on U.S. Environmental Protection Agency Techniques, 10 WASTE MGMT. &
RES. 505 (1992).
12. On the other hand, the economies of scale of waste management are
such that larger operations are more able to afford more effective pollution
control and monitoring systems. One can also presume that, as a general rule, a
large corporation operating a regional megafill is more likely to have the resources
to purchase and maintain buffer zones than a small, neighborhood dump. As a
practical matter, the age of a landfill is a greater determinant of whether it
imposes substantial externalities on local communities than its size.
13. 340 U.S. 349 (1951).
14. Id. at 354.
15. See generally, Richard A. Epstein,
Nuisance Law: Corrective Justice and Its Utilitarian Constraints, 8 J. LEG.
STUD. 49 (1979).
16. RICHARD A. EPSTEIN,
SIMPLE RULES FOR A COMPLEX WORLD 277 (1997).
17. There is a wealth of recent scholarship debunking the “race to the bottom”
thesis in the context of environmental policy. This scholarship is summarized
in Jonathan H. Adler, Wetlands, Waterfowl, and the
Menace of Mr. Wilson: Commerce Clause Jurisprudence and the Limits of Federal Wetlands
Regulation, 29 ENV. L. 1, 42-47 (1999). The seminal article on this subject is
Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the
‘Race-to-the-Bottom’ Rationale for Federal Environmental Regulation, 67 N.Y.U.
L. REV. 1210 (1992).
18. R.H. COASE, THE FIRM, THE MARKET, AND THE LAW 26 (1988).
19. Indeed, Coase went further, suggesting the ubiquity of externalities
justified “a prima facie case against intervention.” Id.
supra note 1, at 36.
21. So-called “flow control” statutes, for example, disrupt recycling markets
by diverting recyclable materials to privileged facilities. See, e.g., Jonathan H. Adler, The Failure of Flow Control,
REGULATION (Spring 1995). Hazardous waste regulations can also be a substantial
barrier to the recycling and reuse of hazardous wastes. See Adler, supra note
22. A. Clark Wiseman, Government and Recycling: Are We Promoting Waste?, 12
CATO J. 443, 444 (1992) (citing a 1989 EPA report).
23. Id. at 445.
24. Buried Alive!, NEWSWEEK cover (November 29, 1989).
25. Environmental Industry Associations, Interstate Transport of Waste
Materials, available at
(visited April 28, 2000).
26. A 1988 government study predicted that Pennsylvania faced a solid
waste crisis because so many of its landfills were closing.
27. Epstein, supra
note 1, at 37.
28. Id. at 36.
29. For a sampling of communities that have benefited from hosting
waste management facilities see Rex Springston, Trash Means Cash to Counties,
RICHMOND TIMES-DISPATCH (January 31, 1999). See also Logomasini, supra note 8,
at Tables I and II.
supra note 1, at 40.
31. Id. at 38. I should note that the primary national waste management
law, the Resource Conservation and Recovery Act (RCRA), primarily applies to
the management of wastes classified as “hazardous,” and not the sorts of waste
at the heart of the Philadelphia v. New Jersey dispute.
32. MICHAEL GERRARD, WHOSE BACKYARD, WHOSE RISK? 172 (1994).
33. Id. at 32.
34. Id. at 34.
35. See Lynn Scarlett, Product Take-back Systems: Mandates Reconsidered, POLICY
STUDY 153 (Center for the Study of American Business, October 1999).
Copyright (c) 2000
The Green Bag, Inc.; Jonathan H. Adler