St. Mary's Law Journal


Laura Gabrysch


In C & A Carbone, Inc. v. Town of Clarkstown, the Court held flow control ordinances that require disposal of trash at a designated facility violate the Dormant Commerce Clause. In the absence of congressional action, the Court has recognized—the Dormant Commerce Clause—restrictions on states’ ability to regulate interstate commerce. The Dormant Commerce Clause doctrine does not emanate directly from the Constitution, but instead flows from the body of Commerce Clause jurisprudence that has gained legitimacy throughout the years. In Carbone, the Court elevated the economic interests of one local waste processor over Clarkstown’s environmental and public protection. This type of use of the Dormant Commerce Clause invites those with money and power to attack environmental regulations by bypassing the legislative process and going straight to the judiciary. If the Court favors the interest of a free market over the public’s interest in health, safety, and a clean environment, the Court should have deferred to Congress in making this policy determination. Congress then could have employed its constitutionally mandated Commerce Clause powers to preempt state or local flow control regulations. Instead, the Court conducted a rigid and intrusive inquiry into Clarkstown’s reasons for building the solid waste transfer station. In Carbone, the Court found economic protectionism in an ordinance that burdened local citizens as much as, if not more than, nonlocals. As a result of this classification, the economic interests of one local actor were given more credence than the health and environmental interests of the local populace. Because of the Court’s inability to consider local interests under the Dormant Commerce Clause, the Court should have practiced judicial abstinence and left this policy decision to Congress.


St. Mary's University School of Law