OPPlCE OF THE ATTORNEY GENERAL. ST*TE OF TEXAS
JOHN CORNYN
March 10, 1999
Mr. Robert J. Huston Opinion No. JC-0017
Chairman, Texas Natural Resource
Conservation Commission Re: Whether section 361.0235 of the Health and
P.O. Box 13087 Safety Code, banning the importation into Texas
Austin, Texas 7871 l-3087 ofhazardous waste generated in a foreign country,
is constitutional 014-l 165)
Dear Mr. Huston:
Your predecessor in office asked us to determine whether section 36 1.0235 of the Health and
Safety Code, banning the importation into Texas ofhazardous waste generated in a foreign country,
violates the Commerce Clause of the United States Constitution. Section 361.0235 provides:
(a) Except as otherwise provided by this section, a person may not
receive, transport, or cause to be transported into this state, for the purpose
oftreatment, storage, or disposal in this state, hazardous waste generated in
a country other than the United States.
(b) This section may not be construed or applied in a manner that
interferes with the authority ofthe federal government to regulate commerce
with foreign nations and among the several states provided by Article I,
Section 8, Clause 3, of the United States Constitution.
(c) This section does not apply to a person who transports or receives
material from a country other than the United States for:
(1) recycling or reuse of the material; or
(2) use of the material as a feedstock or ingredient in the production
of a new product.
(d) This section does not apply to waste transported or received for
treatment, storage, or disposal at a hazardous waste management facility that
is owned by the generator of the waste or by a parent, subsidiary, or
affiliated corporation of the generator.
Mr. Robert Huston - Page 2 (JC-0017)
(e) This section does not apply to waste received by:
(1) a producer of the product or material from which the waste is
generated, or
(2) a parent, subsidiary, or affiliated corporation of such producer.
(f) This section does not apply to waste generated in Mexico at an
approved maquiladora facility to the extent that such waste:
(1) was generated as a result of the processing or fabrication of
materials imported into Mexico from Texas on a temporary basis; and
(2) is required to be re-exported to the United States under Mexican
law.
TEX.HEALTH& SAFETYCODEANN. 4 361.0235 (Vernon Supp. 1999).
The Commerce Clause gives Congress the power “[t]o regulate Commerce with foreign
Nations, and among the several States.” U.S. CONST.art. I, 5 8, cl. 3. While the clause is phrased
as an affirmative grant of power, it has a “negative” or “dormant” aspect that restricts the states’
power to enact laws that interfere with interstate or foreign commerce. Oregon Waste Sys., Inc. v.
Department ofEnvt1. Quality, 5 11 U.S. 93,98 (1994). The principle underlying the interstate aspect
of the Commerce Clause is that “our economic unit is the Nation,” and states therefore may not act
in isolation as separate economic units. H.P. Hood & Sons, Inc. v. Du Mend, 336 U.S. 525,537-38
(1949); accord, Oregon Waste Sys., 511 U.S. at 98. Similarly, the foreign aspect of the Commerce
Clause is intended to allow Congress to “speak with one voice” for the country in economic dealings
with foreign nations. Japan Line, Ltd. v. CountyofLos Angeles, 441 U.S. 434,449 (1979); see also
Chemical Waste Management, Inc. v. Templet, 770 F. Supp. 1142,1152 (M.D. La. 1991), aff’, 967
F.2d 1058 (5th Cir. 1992) cert. denied, 506 U.S. 1080 (1993). The Supreme Court has rejected
arguments that hazardous waste is not a legitimate article of commerce subject to constitutional
protection because it has no value or because the dangers inherent in its movement outweigh its
worth in commerce. See City ofPhiladelphia v. New Jersey, 437 U.S. 617,622-23 (1978); see also
Chemical Waste Management, 770 F. Supp. at 1149 (finding that foreign generated hazardous waste
is object ofcommerce subject to Commerce Clause protection). “All objects ofinterstate trade merit
Commerce Clause protection,” the Court has said. City of Philadelphia, 437 U.S. at 622.
When invoking the interstate portion of the Commerce Clause, courts have sought to avoid
the evils of state economic isolationism and protectionism “while at the same time recognizing that
incidental burdens on interstate commerce may be unavoidable when a State legislates to safeguard
the health and safety of its people.” Id. at 623-24. Thus when considering whether a state’s
regulation of interstate commerce is permissible, courts apply one of two tests. “‘Where the statute
regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate
Mr. Robert Huston - Page 3 (JC-0017)
commerce are only incidental, it will be upheld unless the burden imposed on such commerce is
clearly excessive in relation to the putative local benefits.“’ Id. at 624 (quoting Pike v. Bruce
Church, Inc., 397 U.S. 137, 142 (1970)). But where a state law effects simple economic
protectionism, the statute is virtually invalid per se. Id. “The clearest example of such legislation
is a law that overtly blocks the flow of interstate commerce at a State’s borders.” Id. A law that
unambiguously discriminates against out-of-state goods is characterized as a protectionist measure
that cannot withstand Commerce Clause scrutiny unless the state can demonstrate that the law
furthers a legitimate local purpose that cannot be adequately served by nondiscriminatory
alternatives. Oregon Waste Sys., 511 U.S. at 100-01.
When considering a state law that burdens foreign commerce, courts begin with the tests
applicable to the interstate Commerce Clause, then apply an even higher level of scrutiny. See Japan
Line, 441 U.S. at 446; Chemical Waste Management, 770 F. Supp. at 1152-53; Trans Chemical Ltd.
v. China Nat’IMach. Import & Export Corp., 978 F. Supp. 266,300 n.145 (S.D. Tex. 1997), aff d,
161 F.3d 3 14 (5th Cir. 1998). “Foreign commerce is pre-eminently a matter of national concern,”
and the country must act uniformly in regulating commercial relations with foreign nations. Japan
Line, 441 U.S. at 448. A state law that discriminates on its face against articles of commerce from
foreign nations based solely on their origin violates the foreign Commerce Clause. Chemical Waste
Management, 770 F. Supp. at 1153.
Section 361.0235 of the Health and Safety Code overtly bans the importation into Texas of
waste generated in a foreign country. The ban promotes the state’s public policy, expressed in
section 361.023 1 of the Health and Safety Code, that “adequate capacity should exist for the proper
management of industrial and hazardous waste generated in this state.” TEX. HEALTH& SAFETY
CODEANN. 5 361.023 l(a) (Vernon 1992). This policy was articulated in thecommitteereport onthe
legislation enacting section 361.0235:’
[Wlaste imported into the state poses certain management and societal costs.
Not only must the waste be monitored in the cradle to grave fashion as set
forth by law, it must also be managed to prevent risks to public health and the
environment. These issues create a condition where foreign waste is in
competition for the limited adequate capacity designated for waste generated
within the state’s borders.
HOUSECOMM. ON ENVIRONMENTAL
AFFAIRS,BILL ANALYSIS, Tex. H.B. 1444, 72d Leg., R.S.
(1991). Accordingly, the ban on importation of waste from foreign countries in section 361.0235
unambiguously discriminates against out-of-state commerce and on its face is simply a protectionist
measure.
‘Section 361.0235 was originally enacted as section 361.0232, Act of May 14, 1991,72d Leg., RX, ch. 336,
5 1, 1991 Tex. Gen. Laws 1383, and was renumbered by Act of April 25, 1995,74th Leg., RX, ch. 76, 5 17.01(27)
1995 Tex. Gen. Laws 458,847.
Mr. Robert Huston - Page 4 (JC-0017)
The Supreme Court has held that the preservation of waste disposal capacity, while a
legitimate legislative goal, does notjustify a patent discrimination against out-of-state waste. In City
of Philadelphia, a New Jersey statute barred from the state “any solid or liquid waste which
originated or was collected outside the territorial limits ofthe State.” City ofphiladelphia, 437 U.S.
at 618. New Jersey argued that the statute did not promote economic protectionism in violation of
the Commerce Clause because the statute’s goal of preserving disposal capacity was to protect
environmental resources, not economic ones. Id. at 625-26. But the Court explained that the statute
was unconstitutional on its face even if its underlying purpose was legitimate:
[I]t does not matter whether the ultimate aim of ch. 363 is to reduce the waste
disposal costs of New Jersey residents or to save remaining open lands from
pollution, for we assume New Jersey has every right to protect its residents’
pocketbooks as well as their environment. And it may be assumed as well
that New Jersey may pursue those ends by slowing the flow of all waste into
the State’s remaining landfills, even though interstate commerce may
incidentally be affected. But whatever New Jersey’s ultimate purpose, it may
not be accomplished by discriminating against articles of commerce coming
from outside the State unless there is some reason, apart from their origin, to
treat them differently.
Id. at 626-27; see also Chemical Waste Management, 770 F. Supp. at 1152 (finding unconstitutional
per se state’s absolute ban on importation into state of foreign hazardous waste based solely on its
origin).
On the same grounds, the Supreme Court declared Michigan county restrictions on waste
importation unconstitutional, noting that if the state was concerned about waste disposal capacity,
it could have addressed the problem without discriminating between domestic and out-of-state waste.
Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep ‘tof Natural Resources, 504 U.S. 353,366-67
(1992). “Michigan could, for example, limit the amount of waste that landfill operators may accept
each year.” Id. at 367. But in the absence of a valid reason for banning waste horn outside the state,
but not from inside the state, the statute was unconstitutional. Id. And in Diamond Waste, Inc. v.
Monroe Counly, Georgia, 939 F.2d 94 l(l1 th Cir. 199 1), the court, finding unconstitutional a county
statute that banned out-of-county waste, observed:
If Monroe County’s goals are to preserve existing landtill space and to
prevent environmental damage, these goals could be met just as effectively
by less discriminatory measures. . Monroe County could reduce the
amount of garbage deposited by setting reasonable daily tonnage limits on
imported waste and granting permission to dump on a “first come, first
served” basis. Or Monroe County could auction permits for dumping fixed
amounts of imported waste. Or dumping rights for out-of-county garbage
could be established by lottery. While this is not an exhaustive list of
alternatives available to Monroe County, this list does show that Monroe
Mr. Robert Huston - Page 5 (X-0017)
County can avoid burdening interstate commerce while feasibly protecting
available landfill space, its citizens, and the environment.
Id. at 945. Accordingly, we conclude that section 361.0235 of the Health and Safety Code does not
pass constitutional muster because it overtly discriminates against interstate commerce without
furthering a legitimate local purpose that cannot be adequately served by nondiscriminatory means.
A statute that fails the tests applicable to laws burdening interstate commerce cannot
withstand the even stricter scrutiny applied to laws affecting foreign commerce. See Chemical Waste
Management, 770 F. Supp. at 1152-53. We conclude that section 361.0235 ofthe Health and Safety
Code violates the foreign commerce aspect of the Commerce Clause.
The exceptions to section 361.0235 do not save it from constitutional infirmity. The
exceptions allow importation from a foreign country of certain types of hazardous waste, namely:
waste to be recycled or used as a feedstock or ingredient in the production of a new product; waste
to be treated, stored, or disposed of at a hazardous waste management facility owned by the
generator of the waste; waste received by the producer of the product from which the waste was
generated; or certain waste generated in Mexico at an approved maquiladora facility. See TEX.
HEALTH& SAFETYCODEANN. 5 361.0235(c)-(f) (Vernon Supp. 1999). None of the exceptions,
however, provides a basis for treating these types of foreign-country generated waste differently
from Texas waste.
Nor does the “savings provision” in section 361.0235(b) enable the statute to withstand
Commerce Clause scrutiny. Section 361,0235(b) provides: “This section may not be construed or
applied in a manner that interferes with the authority ofthe federal government to regulate commerce
with foreign nations and among the several states provided by Article I, Section 8, Clause 3, of the
United States Constitution.” This provision merely states the obvious: state statutes are void to the
extent they conflict with the United States Constitution. U.S. CONST. art. VI, cl. 2 (“This
Constitution, and the Laws of the United States which shall be made in Pursuance thereof. shall
be the supreme Law of the Land .“). Because the foreign waste ban of section 361.0235 is
invalid per se, it cannot constitutionally be applied in any way. Its “savings provision” is of no
effect.
In short, then, a state may not discriminate against the importation of waste generated in a
foreign country unless it can demonstrate a reason, apart from its origin, why foreign waste must be
treated differently. Section 361.0235 of the Health and Safety Code overtly discriminates against
hazardous waste generated in a foreign country, and we Ilnd no justification on the face of the statute
or in its legislative history for treating such waste differently than other waste. Its clear purpose is
to exclude foreign waste in order to preserve space for the state’s own waste. Courts have found this
type ofprotectionism to be unconstitutional per se. Accordingly, we conclude that section 361.0235,
Health and Safety Code, violates the Commerce Clause of the United States Constitution.
Mr. Robert Huston - Page 6 (JC-0017)
SUMMARY
Section 36 1.0235 ofthe Health and Safety Code, banning the importation
into Texas of hazardous waste generated in a foreign country, violates the
Commerce Clause of the United States Constitution.
4c
Yo very truly,
&@TT-
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Prepared by Barbara Griffin
Assistant Attorney General