Bridging legal and economic perspectives on interstate municipal solid waste disposal in the US

Abstract

Managing municipal solid waste (MSW) within and across regions is a complex public policy problem. One challenge regards conceptualizing precisely what commodity is to be managed across space and time. The US Supreme Court view is that waste disposal is the article of commerce per se. Some justices, however, have argued that while waste disposal is the article of commerce, its interstate flow could be impeded by states on the grounds that they have the authority to regulate natural resource quality within their boundaries. The argument in this paper is that adopting the economic theory view of the article of commerce as landfill space brings the majority and dissenting US Supreme Court views—and the resulting sides of the public policy dispute—into closer alignment. We discuss waste management policy tools that emerge from this closer alignment that are more likely to both withstand judicial scrutiny and achieve economic efficiency.