In the United States, the production of hundreds of millions of tons of hazardous waste every year poses substantial harm to the environment and public health. While the Resource Conservation and Recovery Act (RCRA) defines what counts as hazardous waste and determines how it needs to be handled, states are free to set more stringent guidelines.
California, known for surpassing federal environmental standards, has used a more expansive definition of hazardous waste. The result is a distinction between waste considered hazardous under RCRA (RCRA hazardous waste) and waste that is not considered hazardous under RCRA but is under California’s definition (non-RCRA hazardous waste or “California hazardous waste”). Non-RCRA hazardous waste—mostly soil contaminated with heavy metals and DDT—accounts for 86.1 percent of hazardous waste produced in California since 2010. However, once California hazardous waste crosses state borders, it can be treated under federal law as regular municipal solid waste (MSW). According to a 2023 CalMatters investigation, California has exported almost half of its non-RCRA hazardous waste to Arizona and Utah MSW landfills in that period. This cross-border dumping echoes the problems that gave rise to the “garbage wars” of previous decades, in which states passed laws regulating out-of-state waste dumping.
In almost every instance, the U.S. Supreme Court has struck down these laws as per se discrimination against interstate commerce in violation of the Dormant Commerce Clause (DCC). However, in the Court’s most recent DCC case, National Pork Producers Council v. Ross (NPPC), a fractured Court upheld Proposition 12, a California law banning in-state sales of pork meat from pigs not raised in humane conditions under state law. In doing so, the Court rejected an “almost per se” rule against nondiscriminatory state laws whose practical effects regulate out-of-state behavior. On the flip side, for laws not deemed per se illegal under the DCC, the Court reserved its power to balance a state law’s putative benefits against its burdens on interstate commerce.
By analyzing and applying the Court’s reasoning in NPPC, this Note makes two arguments. First, the majority’s analysis of extraterritoriality in NPPC reinforces the case for overruling the previous “garbage cases” and refocusing the DCC on protectionism. Second, while California cannot directly regulate other states’ waste management practices, it ought to exert control over its own toxic waste, even after the waste crosses state lines. While such a regulation would still face challenges under the DCC, NPPC makes the outcome of those challenges less clear-cut. Given that California must produce a comprehensive waste management plan by 2025, this Note uses California hazardous waste as a case study to inform discussions of how the state should consider evolution in DCC jurisprudence when crafting new regulations with out-of-state effects.
