author: Per Curiam. Mr. Justice Brennan, Mr. Justice Stewart, Mr. Justice Powell,

text:
    CALIFORNIA v. TEXAS
    No. 76,
    Orig.
    Argued March 29, 1978
    Decided June 22, 1978

      Jerome B. Falk, Jr., argued the cause for plaintiff. With him on the briefs were Myron Siedorf, James R. Bimberg, and Steven L. Mayer.

      John L. Hill, Attorney General of Texas, argued the cause for defendant. With him on the brief were David M. Kendall, First Assistant Attorney General, Lee C. Clyburn, Administrative Assistant Attorney General, Rick Harrison, Special Assistant Attorney General, and David Deaderick and Rick Arnett, Assistant Attorneys General.
   Per Curiam.

The motion for leave to file a bill of complaint is denied.

Mr. Justice Brennan,

concurring.

I agree with Mr. Justice Stewart and Mr. Justice Powell that “in light of Edelman v. Jordan, 415 U. S. 651 (1974), this Court’s decision in Worcester County Trust Co. v. Riley, 302 U. S. 292 (1937), no longer can be regarded as a bar against the use of federal interpleader by estates threatened with double death taxation because of possible inconsistent adjudications of domicile.” Post, at 615.

I am not so sure as they that Texas v. Florida, 306 U. S. 398 (1939), was wrongly decided., But, whatever the case, I would still deny California’s motion to file a bill of complaint at this time. If we have jurisdiction at all, that jurisdiction certainly does not attach until it can be shown that two States may possibly be able to obtain conflicting adjudications of domicile. That showing has not been made at this time in this case, since it may well be possible for the Hughes estate to obtain, a judgment under the Federal Interpleader Statute, 28 U. S. C. § 1335, from a United States district court, which would be binding on both California and Texas. In this event, the precondition for our original jurisdiction would be lacking. Accordingly, I would deny California's motion, at least until such time as it is shown that such a statutory inter-pleader action cannot or will not be brought.

Mr. Justice Stewart,

with whom Mr. Justice Powell and Mr. Justice Stevens join,

concurring.

California seeks to invoke the original and exclusive jurisdiction of this Court to settle a dispute with the State of Texas over the question of which State has the power to collect death taxes from the estate of the late Howard Robard Hughes. The Court today, without explanation of any kind, evidently concludes that California’s complaint does not state a claim within our original and exclusive jurisdiction. This conclusion seems to me squarely contrary to a longstanding precedent of this Court, the case of Texas v. Florida, 306 U. S. 398. I have joined in the order denying California’s motion for leave to file this complaint only because I think Texas v. Florida was wrongly decided and should be overruled.

I

According to the complaint, California imposes an inheritance tax on the real and tangible personal property located within its borders, and upon the intangible personalty wherever situated, of a person domiciled in the State at the time of his death, and Texas follows precisely the same policy. The complaint alleges that the taxing authorities in each State are claiming in good faith that the decedent Hughes was domiciled in their State at the time of his death, and have instituted proceedings to tax all the assets of the estate within the jurisdiction, as well as the intangibles (consisting of shares of stock in a single holding company) that constitute the great bulk of the estate’s assets.

The common law in both States recognizes, as a theoretical matter, that a person has only one domicile for purposes of death taxes. Nevertheless, the complaint alleges, since neither Texas nor California is or will become a party to the proceedings in the other’s courts, neither will be bound by an adverse determination of domicile in the other’s forum. Finally, and at the crux of the dispute, the complaint alleges that if both California and Texas obtain judgments for estate taxes in their respective courts and impose their taxes on the basis of the valuation of assets set forth in the federal estate tax return, the estate’s total liability for federal and state taxes will exceed its net value. Thus, the complaint alleges that if the United States and Texas were to collect the taxes claimed by them, and if the California courts should ultimately determine that Hughes was a domiciliary of California at the time of' his death, then California would be left with an entirely valid tax judgment that would be uncollectible to the extent of about $21 million.

In sum, the complaint alleges that “because there is no other means by which the conflicting tax claims of Texas and California can be resolved, this Court is the only forum which can determine the question of decedent’s domicile in a manner that will bind the interested parties and assure that the state of domicile, if California or Texas, will be able to collect the tax.” California invokes the original and exclusive jurisdiction of this Court on the authority of Texas v. Florida, supra.

II

In Texas v. Florida this Court accepted original jurisdiction of Texas’ complaint “in the nature of a bill of interpleader, brought to determine the true domicile of [a] decedent as the basis of rival claims of four states for death taxes upon his estate . . . 306 U. S., at 401. Texas and each of the three defendant States claimed that the decedent, Colonel Edward Green, son of the legendary Hetty Green, was its domiciliary and that it was entitled to collect death taxes upon his intangible property wherever located, as well as upon his tangible property within the State. None of the States had reduced its tax claim to judgment, but all conceded that the decedent’s estate was insufficient to satisfy the total amount of taxes claimed: that is, if all four States were successful in their own courts and obtained judgments for taxes in the full amount claimed, the estate would be insufficient to cover all of the claims.

Although none of the parties raised any question of this Court’s jurisdiction, the Court considered the question sua sponte. It held that since the suit was between States, Art. Ill, § 2, of the Constitution conferred original jurisdiction to decide the case so long as “the issue framed by the pleadings constitutes a justiciable 'case' or ‘controversy’ within the meaning of the Constitutional provision, and . . . the facts alleged and found afford an adequate basis for relief according to accepted doctrines of the common law or equity systems of jurisprudence . . . 306 U. S., at 405.

The Court found such a basis for relief by analogizing the suit to a bill in the nature of interpleader. This procedure had developed in equity to avert the “risk of loss ensuing from the demands in separate suits of rival claimants to the same debt or legal duty” by requiring the claimants to “litigate in a single suit their ownership of the asserted claim.” Id., at 405-406. Since the law of each of the claiming States provided that a decedent could be domiciled in only one State for purposes of death taxes, the Court held that the competing tax claims were in fact conflicting claims to the same single legal duty.

Thus viewing the suit as one in the nature of interpleader, the Court also found that the controversy was ripe for decision. Since each State’s claim was sufficiently substantial to support a finding of domicile, there was a “fair probability” that each would be successful in its own courts and that the estate’s assets would be insufficient to meet all of the claims. The Court therefore found a justiciable present controversy in the substantial “risk of loss [to] the state lawfully entitled to collect the tax.” Id., at 410-411. The Court perceived no jurisdictional frailty in the fact that none of the claiming States had completed proceedings to collect its inheritance tax, since a plaintiff in an interpleader action was ordinarily not required to await actual institution of independent suits: “[I]t is enough if he shows that conflicting claims are asserted and that the consequent risk of loss is substantial.” Id., at 406.

The facts alleged in the complaint now before us are indistinguishable in all material respects from those on which jurisdiction was based in Texas v. Florida. This Court has original and exclusive jurisdiction of disputes between two or more States, 28 U. S. C. § 1251 (a)(1), and it has a responsibility to exercise that jurisdiction when it is properly invoked. See Cohens v. Virginia, 6 Wheat. 264, 404; Massachusetts v. Missouri, 308 U. S, 1, 19-20. If Texas v. Florida was correctly decided, the Court, therefore, is under a duty in this case to grant California’s motion to file its complaint.

I believe, however, that Texas v. Florida was wrongly decided. Its conclusion that there was a case or controversy among the claiming States depended entirely on the analogy to a suit in the nature of interpleader to settle the question of the decedent’s domicile. Yet it seems to me that in resting upon that analogy the Court focused erroneously on the plight of the estate, which was indeed confronted with a “substantial likelihood” of multiple and inconsistent tax claims, and overlooked the fact that the dispute among the claiming States — stemming solely from the possibility that the estate might be insufficient to satisfy all of their claims — was not a case or controversy in the constitutional sense.

III

The Court’s readiness in Texas v. Florida to accept the interpleader analogy is understandable in the context of the then state of the law governing multiple taxation of intangibles.

Before 1931 it had been taken as settled that, because the question of domicile was purely one of state law, it “must in many cases be impossible to have a single controlling decision upon the question,” unless all interested parties could by chance or voluntary appearance be brought before a single forum. Baker v. Baker, Eccles & Co., 242 U. S. 394, 405. But when this Court held in 1931 that shares of stock and other intangible property could constitutionally “be subjected to a death transfer tax by one state only,” that being the State of the decedent’s domicile, First National Bank v. Maine, 284 U. S. 312, 328-330, it seemed implicit that there must be some means of protecting that right in a federal forum. The obvious next question was under what federal-court procedures conflicting state claims of domicile were to be resolved.

The somewhat unexpected answer came in Worcester County Trust Co. v. Riley, 302 U. S. 292, which held that, at least for the ordinary estate, there was no means of forcing unwilling States to litigate the question of domicile, and the consequent right to tax the estate’s intangibles, in a federal district court. In that case the estate of a decedent attempted to sue the taxing officials of two different States under the recently enacted Federal Interpleader Statute, 28 U. S. C. § 1335, to obtain a single, binding determination of the decedent’s domicile at the time of his death. Despite the broad language of the First National Bank case, the Court held that “[n] either the Fourteenth Amendment nor the full faith and credit clause requires uniformity in the decisions of the courts of different states as to the place of domicil, where the exertion of state power is dependent upon domicil within its boundaries.” 302 U. S., at 299. After thus making clear that the imposition of multiple estate taxes on the basis of inconsistent adjudications of domicile presented no federal constitutional question, the opinion of the Court went on to foreclose recourse to the federal interpleader jurisdiction. Federal interpleader is based on diversity-of-citizenship jurisdiction, see State Farm Fire & Casualty Co. v. Tashire, 386 U. S. 523, 530-531, and a federal question is ordinarily not required. But because the state tax officials were not acting unconstitutionally in attempting to impose taxes on the basis of valid state-court judgments, the Court held that the interpleader action was in substance a suit against the States themselves, and therefore barred by the Eleventh Amendment. See Ex parte Young, 209 U. S. 123.

When the identical type of dispute was placed before this Court two years later in Texas v. Florida, the,Court was thus understandably persuaded to view the complaint as presenting a question of domicile resolvable by a suit in the nature of interpleader to determine which State could alone impose the death tax. But the issue of the decedent’s domicile in that case was merely a coincidental premise to the real basis of the dispute among the States — the risk that the claims of the competing States would exceed the net value of the estate, and that “the state lawfully entitled to collect the tax” would find itself unable to do so.

As the opinion in Texas v. Florida made clear, insofar as the rights of the estate were concerned, each of the four States was “lawfully entitled” to collect the tax: “[T]wo or more states may each constitutionally assess death taxes on a decedent’s intangibles upon a judicial determination that the decedent was domiciled within it . . . 306 U. S., at 410. And a few months later the Court elaborated on this doctrine when it denied a motion to file a complaint in Massachusetts v. Missouri, 308 U. S. 1. There the Court made clear that both States were equally entitled to impose a tax so long as there was no risk that the estate would be depleted: “Missouri, in claiming a right to recover taxes from the respondent trustees, or in taking proceedings for collection, is not injuring Massachusetts. By the allegations, the property held in Missouri is amply sufficient to answer the claims of both States and recovery by either does not impair the exercise of any right the other may have.” Id., at 15.

Thus, even after Texas v. Florida, there was still no forum in which an estate confronted with conflicting tax claims could obtain a single, binding adjudication of domicile. So long as it was able to pay each State’s claim, it was required to pay taxes to any State that obtained a judgment of domicile in its own courts. And, so long as the assets of the estate were sufficient to answer all claims, a State could not obtain an adjudication in this Court as to which State had “the jurisdiction and lawful right” to impose inheritance taxes. Only in the very rare situation when a decedent’s estate was threatened with death tax claims of two or more States that together exceeded its assets, and only if one of the competing States then invoked this Court’s original jurisdiction, would the Court undertake to decide the decedent’s true domicile and grant one State the exclusive right to tax the decedent’s estate.

IV

In reality the facts in Texas v. Florida, as well as the allegations in the complaint now before us, contain the seeds of two distinct lawsuits. One is a dispute between two States as to the proper division of a finite sum of money. The other is a suit in the nature of interpleader to settle the question of a decedent’s domicile for purposes of the taxes to be imposed upon his estate. But the suit in the nature of interpleader is not within the original and exclusive jurisdiction of this Court because it is not a dispute between States. And the dispute between the States, if indeed it is justiciable at all, is certainly not yet a case or controversy within the constitutional meaning of that term.

A

What California seeks in the present complaint is a determination of where Howard Hughes was domiciled at the time of his death. It is clear to me that, if presented by a proper party in a proper forum, this determination could and should be made in response to a bill of interpleader. See nn. 9 and 10, supra. But if interpleader generally affords no remedy to a decedent’s estate that is faced with the threat of multiple taxation, there is no logical reason why the remedy should be available in the rare situation where the multiple taxation would wipe the estate out entirely. If it is unfair to subject an estate to two domicile-based taxes when all agree that it is possible to have only one domicile, that unfairness is just as great, if not greater, when a decedent’s estate is able to pay the taxes to both States.

It must be recognized, however, that what is involved is unfairness to the estate, not to the taxing States. The remedy of interpleader exists, if at all, to require litigation of the inconsistent tax claims in a single forum in order to avert the risk of loss to the estate that would result from separate adjudications. But the only live controversy in such a suit is between each State and the decedent’s estate as to the legal obligation to pay death taxes. There is, in fact, no present dispute between the claiming States.

In the present case, it would be of no possible concern to either California or Texas that the other might adjudge Hughes a domiciliary and succeed in taxing his estate, except for the possibility that the other’s tax might exhaust the estate entirely before it is able to satisfy its own tax judgment. Thus to the extent that the concern of this action is to prevent the possibility that the estate will be subjected to double taxation, it does not present a dispute between two States within the original and exclusive jurisdiction of this Court. For a State may seek the aid of this Court only to protect its own interests, not the interests of others. See Massachusetts v. Missouri, supra, at 15.

B

The dispute between California and Texas, therefore, is not really over which of them has the right to impose a domiciliary tax upon the Hughes estate. Indeed the dilemma of multiple taxation arises only because the Constitution permits both States to impose the tax. Worcester County Trust Co. v. Riley, 302 U. S. 292. The real dispute arises solely from the risk that one of the States will be left with an entirely valid but uncollectible tax judgment. Massachusetts v. Missouri, supra, at 15. The conflict would be equally real if the two States were staking their tax claims to the finite assets of the estate on entirely different grounds, or if both States claimed as judgment creditors on the basis of completely different debts incurred while Hughes was still alive.

In the latter situation the question of domicile would be irrelevant, and there is no compelling reason why it should have been the dispositive question in Texas v. Florida. For when this Court exercises its original jurisdiction to settle a dispute between two States it does not look to the law of each State, but rather creates its own rules of decision. “The determination of the relative rights of contending States in respect of the use of streams flowing through them does not depend upon the same considerations and is not governed by the same rules of law that are applied in such States for the solution of similar questions of private right.” Connecticut v. Massachusetts, 282 U. S. 660, 670. The determination of the relative rights of two States that both claim the power to tax a decedent’s estate similarly should not necessarily depend on the same considerations that would govern the question under state law.

In deciding the controversy between Texas and California the Court could, of course, determine, according to its own rules of decision where Hughes was domiciled when he died, and permit only the State of domicile to tax the estate. Cf. Texas v. New Jersey, 379 U. S. 674. But assuming there are sufficient contacts with each State to support a finding of domicile under each State’s law — a premise of jurisdiction in Texas v. Florida — the Court could with equal validity decide that the proper disposition was a division of the assets of the estate based on a judgment as to the relative strength of the domicile claims, or on almost any other basis that seemed just. Indeed, for purposes of this Court’s resolution of a dispute between two sovereign States, each of which has an equally valid claim under its own law, it would seem more appropriate to decide the case on some neutral principle rather than attempt to determine a single “correct” answer under state common law.

In any event the question for decision would be one to be resolved under federal law, not under the state law of domicile. A prior adjudication of domicile in the courts of either of the claiming States would not bind this Court in any respect, or prevent it from affording whatever relief it deemed appropriate. Thus California, unlike the ordinary claimant in an interpleader action, will not be met with the bar of res judi-cata if its potential conflict with Texas is not pre-empted at this incipient stage. Cf. Treinies v. Sunshine Mining Co., 308 U. S. 66, 74-78.

The original jurisdiction of this Court exists to remedy real and substantial injuries inflicted by sovereign States upon their sister States. New York v. New Jersey, 256 U. S. 296, 309; Massachusetts v. Missouri, 308 U. S. 1. As yet, California has suffered no injury at the hand of Texas, and there is indeed a “fair probability” that the injury will never come to pass. California has not obtained a judgment in its own courts that Hughes died domiciled there, but merely a conditional agreement from the estate’s representative not to contest California’s assertion of domicile in this Court if the present complaint is accepted for filing. Moreover, whether or not the estate will in fact be insufficient to meet the various tax claims may depend on how the assets are finally evaluated and what deductions the various taxing authorities allow. While the risk of conflict poses a sufficiently real threat to the estate to present a ripe controversy if an interpleader suit were filed by the appropriate parties in a federal district court, that risk certainly does not amount to “clear and convincing evidence” of an actual injury of “serious magnitude” inflicted by one State upon another. New York v. New Jersey, supra, at 309; Missouri v. Illinois, 200 U. S. 496, 521.

Indeed it is not at all clear to me that the injury threatened here- — essentially that one State will be left with an uncol-lectible judgment because another State has exhausted a debtor’s funds — would be sufficient to justify the exercise of this Court’s original jurisdiction even if the injury actually occurred. But even assuming that it would be, such jurisdiction surely does not exist until each State has finally established an enforceable claim under state law, and it is clear that the estate's assets are insufficient to meet both claims.

It is for these reasons that I join in the order of the Court denying California’s motion for leave to file its complaint.

Mr. Justice Powell,

concurring.

I join the excellent opinion of Mr. Justice Stewart and write simply to emphasize his conclusion that, in light of Edelman v. Jordan, 415 U. S. 651 (1974), this Court’s decision in Worcester County Trust Co. v. Riley, 302 U. S. 292 (1937), no longer can be regarded as a bar against the use of federal interpleader by estates threatened with double death taxation because of possible inconsistent adjudications of domicile.

As Professor Zechariah Chafee, the father of federal statutory interpleader, pointed out: “It is our federal system which creates the possibility of double taxation. Somewhere within that federal system we should be able to find remedies for the frictions which that system creates.” Federal Inter-pleader Since the Act of 1936, 49 Yale L. J. 377, 388 (1940). The Worcester County Court, much to Professor Chafee’s regret, 49 Yale L. J., at 388, held that the Eleventh Amendment precluded resort to federal interpleader as a remedy for the particularly unfair “friction” that can result from conflicting adjudications of domicile in death taxation cases.

But as noted by Mr. Justice Stewart, ante, at 608-609, n. 10, Worcester County has been effectively undercut by subsequent developments. Edelman made it clear that the Eleventh Amendment bars only suits “by private parties seeking to impose a liability which must be paid from public funds in the state treasury,” 415 U. S., at 663, and not actions which may have “fiscal consequences to state treasuries . . . [that are] the necessary result of compliance with decrees which by their terms [are] prospective in nature,” id., at 667-668, at least in a case such as this, where the very controversy is a result of our federal system. An interpleader action to prevent competing States’ taxing officials from levying death taxes on the basis of possible inconsistent adjudications of domicile unquestionably would fall into the latter category. Accordingly, it would appear that resort to federal inter-pleader no longer is proscribed by the Eleventh Amendment in this situation.

       Tangible personal property and realty are constitutionally subject to taxation only at the place of situs. See Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194; City Bank Farmers Trust Co. v. Schnader, 293 U. S. 112. As will be developed more fully, infra, at 607-610, intangible personal property may, at least theoretically, be taxed only at the place of the owner’s domicile. First Nat. Bank v. Maine, 284 U. S. 312.

       In each State the personal representative of the Hughes estate is contesting the tax claim, asserting that Hughes died domiciled in Nevada— the only State in the Union without death taxes.

       See 7 Dictionary of American Biography 545 (1931).

       The case had been assigned to a Special Master and fully litigated on the merits before the Court raised the question of its jurisdiction sua sponte. The Special Master found that the net estate would amount to $36,137,335, and that the total tax claims of the United States and the four claiming States was $37,727,213 — roughly $17.5 million by the United States, $4.6 million each by Texas and Florida, $5 million by Massachusetts, and $6 million by New York. 306 U. S., at 409 n. 2. Since the assets of the estate fell short of the total tax claims by only about $1.6 million, it was clear that there would be no shortfall unless all four state claims were sustained, and indeed that no State would go completely unsatisfied in its tax judgment even if the claims of all four States were sustained.

       In true interpleader the stakeholder bringing suit asserts no- interest in the fund. The bill in the nature of interpleader, by contrast, allows an interested claimant to seek adjudication of all claims to the fund including his own. See id., at 406.

       On the merits the Court confirmed the Master’s finding that Colonel Green was domiciled in Massachusetts at the time of his death, and that Massachusetts was therefore the only State lawfully entitled to tax the intangible personal property in his estate.

       Texas does not concede that all tax claims will necessarily exceed the value of the Hughes estate, and argues that this fact distinguishes the present case from Texas v. Florida. But in that case it was not the concessions of the parties that did or could confer jurisdiction upon the Court. Rather, the Court held that a mere “fair probability” of inconsistent adjudications and consequent “substantial” risk of loss was sufficient to create a constitutional case or controversy in the nature of interpleader. The claims here are, in fact, no more speculative than the claims in that case. See n. 4, supra.

       See Chafee, Federal Interpleader Since the Act of 1936, 49 Yale L. J. 377, 383-393 (1940), and authorities collected, id., at 383 n. 17; Nash, And Again Multiple Taxation?, 26 Geo. L. J. 288, 297 (1938).

       There was no doubt that the dispute was in fact ideally suited to resolution by means of federal interpleader. Professor Chafee, upon whose work the Federal Interpleader Statute was largely based, believed that conflicting state claims of domicile presented a situation in which inter-pleader was “badly needed.” Chafee, supra, n. 8, at 379. It is, he observed, “highly unfair for both state governments to tell the taxpayer, ‘You have to pay only one tax/ and then make him pay twice.” Id., at 384. He pointed out that the paradox of inconsistent adjudications of a theoretically single domicile is one created by our federal system of government: “In a nation with a unified government, the situation in which estates of decedents are here left remediless would be impossible. Either only one agency would impose death taxes; or else a single court of review would determine domicile as between two local taxing agencies. . . . Somewhere within that federal system we should be able to find remedies for the frictions which that system creates.” Id., at 388. I believe such a remedy is now available. See n. 10, infra.

       1 think this holding has been substantially undercut by subsequent developments. In Edelman v. Jordan, 415 U. S. 651, the Court expressed an understanding of the Eleventh Amendment quite different from that manifested in Worcester County Trust Co. v. Riley, 302 U. S. 292. Thus it would appear that an estate confronted with multiple tax claims by two or more States could now bring an interpleader action in a federal district court seeking declaratory and injunctive relief against the tax officials of each State. I do not believe that the Tax Injunction Act, 28 U. S. C. § 1341, would preclude such a suit, if it were clear that the taxing States would not afford the estate a “plain, speedy and efficient remedy” for its claim that it should not be subjected to multiple taxes, e. g., by recognizing an earlier determination of domicile by a sister State.

       At least one commentator so viewed the case when it was pending before the Court: "Texas v. Florida may become the wedge to open the door slammed in Worcester County Trust Co. v. Riley. It is so hard to believe that the Court will persist in its refusal to aid the states in the difficulty, one seizes on the slightest possibility to hope that there may yet come a solution.” Nash, supra n. 8, at 314.

       At oral argument on Texas’ original motion for leave to file a bill of complaint in that case “the Court indicated that there was no justiciable controversy unless the assets of the estate were insufficient to pay the tax claims of all four of the states.” Tweed & Sargent, Death and Taxes are Certain — But What of Domicile, 53 Harv. L. Rev. 68, 75 (1939). This first complaint was dismissed without prejudice. Texas v. New York, 300 U. S. 642. It was upon Texas’ amended complaint, plainly alleging “on information and belief” that the assets were insufficient to meet all claims, that the Court took jurisdiction in Texas v. Florida. See also Massachusetts v. Missouri, 308 U. S. 1, 15.

       In Western Union Telegraph Co. v. Pennsylvania, 368 U. S. 71, the Court held, by contrast, that a holder of tangible property is denied due process by a state-court judgment of escheat that does not and cannot protect the holder from the escheat claim of another State, and that the proper procedure was for the competing States to invoke the original jurisdiction of this Court. Because the Court held that the States could not constitutionally enforce their escheat laws in their own courts, this Court was the only remaining forum in which a State could escheat property that other States claimed. The situation in which the present case arises is quite different, since there is no constitutional impediment to both California and Texas imposing death taxes upon the Hughes estate by proceedings in their own courts.

       See nn. 9 and 10, supra.

       The injury would be the same whatever the source of each State’s claim upon the debtor. The closest analogue of the State’s complaint would seem to be the petition for a declaration of involuntary bankruptcy — a remedy created entirely by statute, not by “accepted doctrines of the common law or equity systems of jurisprudence, which are guides to decision of cases within the original jurisdiction of this Court.” Texas v. Florida, 306 U. S., at 405. See generally 1 W. Collier on Bankruptcy, ¶¶ 0.01-0.03 (1974). I am not certain that our duty to “exercise [the] jurisdiction which is given,” Cohens v. Virginia, 6 Wheat. 264, 404, compels or even empowers us to create such a remedy for the sovereign States. The status of unsatisfied creditor does not necessarily create the kind of controversy between States that can or should be resolved by means of adjudication under this Court’s original jurisdiction. This may, rather, be the kind of dispute that is best resolved by the contending States through negotiation or arbitration. See New York v. New Jersey, 256 U. S. 296, 313; Texas v. Florida, supra, at 428 (Frankfurter, J., dissenting). Tweed & Sargent, supra n. 12, at 77. Indeed many States have adopted procedures for arbitration or compromise of precisely the kind of dispute presented here. See Uniform Interstate Arbitration of Death Taxes Act, 8 U. L. A. 255 (1972); 4 CCH Inh. Est. & Gift Tax Rep. ¶ 12,035 (1975).


source: Caselaw Access Project

author: Mr. Justice Stewart Mr. Justice Rehnquist,

license: Public Domain

text:
    CITY OF PHILADELPHIA et al. v. NEW JERSEY et al.
    No. 77-404.
    Argued March 27, 1978
    Decided June 23, 1978

      Stewart, J., delivered the opinion of the Court, in which BrennaN, White, Marshall, BlacKmuN, Powell, and SteveNS, JJ., joined. RehNQUist, J., filed a dissenting opinion, in which Burger, C. J., joined, ;post, p. 629.

      Herbert F. Moore argued the cause for appellants. With him on the briefs was Arthur Meisel.

      Stephen Skillman, Assistant Attorney General of New Jersey, argued the cause for appellees. With him on the brief were John J. Degnan, Attorney General, and Deborah Poritz and Nathan Edelstein, Deputy Attorneys General.

        M. Jefferson Davis and Michael J. Hogan filed a brief for the Board of Chosen Freeholders of the County of Burlington, N. J., as amicus curiae urging affirmance.
      Briefs of amici curiae were filed by Jeffrey B. Schwartz for the American Public Health Assn.; and by William C. Brashares for the National Solid Wastes Management Assn.

   Mr. Justice Stewart

delivered the opinion of the Court.

A New Jersey law prohibits the importation of most “solid or liquid waste which originated or was collected outside the territorial limits of the State . . . In this case we are required to decide whether this statutory prohibition violates the Commerce Clause of the United States Constitution.

I

The statutory provision in question is ch. 363 of 1973 N. J. Laws, which took effect in early 1974. In pertinent part it provides:

“No person shall bring into this State any solid or liquid waste which originated or was collected outside the territorial limits of the State, except garbage to be fed to swine in the State of New Jersey, until the commissioner '[of the State Department of Environmental Protection] shall determine that such action can be permitted without endangering the public health, safety and welfare and has promulgated regulations permitting and regulating the treatment and disposal of such waste in this State.” N. J. Stat. Ann. §13:17-10 (West Supp. 1978).

As authorized by ch. 363, the Commissioner promulgated regulations permitting four categories of waste to enter the State. Apart from these narrow exceptions, however, New Jersey closed its borders to all waste from other States.

Immediately affected by these developments were the operators of private landfills in New Jersey, and several cities in other States that had agreements with these operators for waste disposal. They brought suit against New Jersey and its Department of Environmental Protection in state court, attacking the statute and regulations on a number of state and federal grounds. In an oral opinion granting the plaintiffs’ motion for summary judgment, the trial court declared the law unconstitutional because it discriminated against interstate commerce. The New Jersey Supreme Court consolidated this case with another reaching the same conclusion, Hackensack Meadowlands Development Comm’n v. Municipal Sanitary Landfill Auth., 127 N. J. Super. 160, 316 A. 2d 711, and reversed, 68 N. J. 451, 348 A. 2d 505. It found that eh. 363 advanced vital health and environmental objectives with no economic discrimination against, and with little burden upon, interstate commerce, and that the law was therefore permissible under the Commerce Clause of the Constitution. The court also found no congressional intent to pre-empt ch. 363 by enacting in 1965 the Solid Waste Disposal Act, 79 Stat. 997, 42 U. S. C. § 3251 et seg., as amended by the Resource Recovery Act of 1970, 84 Stat. 1227.

The plaintiffs then appealed to this Court. After noting probable jurisdiction, 425 U. S. 910, and hearing oral argument, we remanded for reconsideration of the appellants’ preemption claim in light of the newly enacted Resource Conservation and Recovery Act of 1976, 90 Stat. 2795. 430 U. S. 141. Again the New Jersey Supreme Court found no federal pre-emption of the state law, 73 N. J. 562, 376 A. 2d 888, and again we noted probable jurisdiction, 434 U. S. 964. We agree with the New Jersey court that the state law has not been pre-empted by federal legislation. The dispositive question, therefore, is whether the law is constitutionally permissible in light of the Commerce Clause of the Constitution.

II

Before it addressed the merits of the appellants’ claim, the New Jersey Supreme Court questioned whether the interstate movement of those wastes banned by ch. 363 is “commerce” at all within the meaning of the Commerce Clause. Any doubts on that score should be laid to rest at the outset.

The state court expressed the view that there may be two definitions of “commerce” for constitutional purposes. When relied on “to support some exertion of federal control or regulation,” the Commerce Clause permits “a very sweeping concept” of commerce. 68 N. J., at 469, 348 A. 2d, at 514. But when relied on “to strike down or restrict state legislation,” that Clause and the term “commerce” have a “much more confined . . . reach.” Ibid.

The state court reached this conclusion in an attempt to reconcile modern Commerce Clause concepts with several old cases of this Court holding that States can prohibit the importation of some objects because they “are not legitimate subjects of trade and commerce.” Bowman v. Chicago & Northwestern R. Co., 125 U. S. 465, 489. These articles include items “which, on account of their existing condition, ■'would bring in and spread disease, pestilence, and death, such as rags or other substances infected with the germs of yellow fever or the virus of small-pox, or cattle or meat or other provisions that are diseased or decayed, or otherwise, from their condition and quality, unfit for human use or consumption.” Ibid. See also Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 525, and cases cited therein. The state court found that ch. 363 as narrowed by the state regulations, see n. 2, supra, banned only “those wastes which can [not] be put to effective use,” and therefore those wastes were not commerce at all, unless “the mere transportation and disposal of valueless waste between states constitutes interstate commerce within the meaning of the constitutional provision.” 68 N. J., at 468, 348 A. 2d, at 514.

We think the state court misread our cases, and thus erred in assuming that they require a two-tiered definition of commerce. In saying that innately harmful articles “are not legitimate subjects of trade and commerce,” the Bowman Court was stating its conclusion, not the starting point of its reasoning. All objects of interstate trade merit Commerce Clause protection; none is excluded by definition at the outset. In Bowman and similar cases, the Court held simply that because the articles' worth in interstate commerce was far outweighed by the dangers inhering in their very movement, States could prohibit their transportation across state lines. Hence, we reject the state court’s suggestion that the banning of “valueless” out-of-state wastes by ch. 363 implicates no constitutional protection. Just as Congress has power to regulate the interstate movement of these wastes, States are not free from constitutional scrutiny when they restrict that movement. Cf. Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 802-814; Meat Drivers v. United States, 371 U. S. 94.

Ill

A

Although the Constitution gives Congress the power to regulate commerce among the States, many subjects of potential federal regulation under that power inevitably escape congressional attention “because of their local character and their number and diversity.” South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U. S. 177, 185. In the absence of federal legislation, these subjects are open to control by the States so long as they act within the restraints imposed by the Commerce Clause itself. See Raymond Motor Transportation, Inc. v. Rice, 434 U. S. 429, 440. The bounds of these restraints appear nowhere in the words of the Commerce Clause, but have emerged gradually in the decisions of this Court giving effect to its basic purpose. That broad purpose was well expressed by Mr. Justice Jackson in his opinion for the Court in H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 537-538:

“This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy, including the vital power of erecting customs barriers against foreign competition, has as its corollary that the states are not separable economic units. As the Court said in Baldwin v. Seelig, 294 U. S. [511], 527, what is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation.’ ”

The opinions of the Court through the years have reflected an alertness to the evils of “economic isolation” 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. Thus, where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected. See, e. g., H. P. Hood & Sons, Inc., v. Du Mond, supra; Toomer v. Witsell, 334 U. S. 385, 403-406; Baldwin v. G. A. F. Seelig, Inc., supra; Buck v. Kuykendall, 267 U. S. 307, 315-316. The clearest example of such legislation is a law that overtly blocks the flow of interstate commerce at a State’s borders. Cf. Welton v. Missouri, 91 U. S. 275. But where other legislative objectives are credibly advanced and there is no patent discrimination against interstate trade, the Court has adopted a much more flexible approach, the general contours of which were outlined in Pike v. Bruce Church, Inc., 397 U. S. 137, 142:

“Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate 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. . . . If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.”

See also Raymond Motor Transportation, Inc. v. Rice, supra, at 441-442; Hunt v. Washington Apple Advertising Comm’n, 432 U. S. 333, 352-354; Great A&P Tea Co. v. Cottrell, 424 U. S. 366, 371-372.

The crucial inquiry, therefore, must be directed to determining whether ch. 363 is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental.

B

The purpose of ch. 363 is set out in the statute itself as follows:

“The Legislature finds and determines that . . . the volume of solid and liquid waste continues to rapidly increase, that the treatment and disposal of these wastes continues to pose an even greater threat to the quality of the environment of New Jersey, that the available and appropriate land fill sites within the State are being diminished, that the environment continues to be threatened by the treatment and disposal of waste which originated or was collected outside the State, and that the public health, safety and welfare require that the treatment and disposal within this State of all wastes generated outside of the State be prohibited.”

The New Jersey Supreme Court accepted this statement of the state legislature’s purpose. The state court additionally found that New Jersey’s existing landfill sites will be exhausted within a few years; that to go on using these sites or to develop new ones will take a heavy environmental toll, both from pollution and from loss of scarce open lands; that new techniques to divert waste from landfills to other methods of disposal and resource recovery processes are under development, but that these changes will require time; and finally, that “the extension of the lifespan of existing landfills, resulting from the exclusion of out-of-state waste, may be of crucial importance in preventing further virgin wetlands or other undeveloped lands from being devoted to landfill purposes.” 68 N. J., at 460-465, 348 A. 2d, at 509-512. Based on these findings, the court concluded that ch. 363 was designed to protect, not the State’s economy, but its environment, and that its substantial benefits outweigh its “slight” burden on interstate commerce. Id., at 471-478, 348 A. 2d, at 515-519.

The appellants strenuously contend that ch. 363, “while outwardly cloaked fin the currently fashionable garb of environmental protection/ ... is actually no more than a legislative effort to suppress competition and stabilize the cost of solid waste disposal for New Jersey residents . . . They cite passages of legislative history suggesting that the problem addressed by ch. 363 is primarily financial: Stemming the flow of out-of-state waste into certain landfill sites will extend their lives, thus delaying the day when New Jersey cities must transport their waste to more distant and expensive sites.

The appellees, on the other hand, deny that ch. 363 was motivated by financial concerns or economic protectionism. In the words of their brief, “[n]o New Jersey commercial interests stand to gain advantage over competitors from outside the state as a result of the ban on dumping out-of-state waste.” Noting that New Jersey landfill operators are among the plaintiffs, the appellee’s brief argues that “[t]he complaint is not that New Jersey has forged an economic preference for its own commercial interests, but rather that it has denied a small group of its entrepreneurs an economic opportunity to traffic in waste in order to protect the health, safety and welfare of the citizenry at large.”

This dispute about ultimate legislative purpose need not be resolved, because its resolution would not be relevant to the constitutional issue to be decided in this case. Contrary to the evident assumption of the state court and the parties, the evil of protectionism can reside in legislative means as well as legislative ends. Thus, it 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. Both on its face and in its plain effect, ch. 363 violates this principle of nondiscrimination.

The Court has consistently found parochial legislation of this kind to be constitutionally invalid, whether the ultimate aim of the legislation was to assure a steady supply of milk by erecting barriers to allegedly ruinous outside competition, Baldwin v. O. A. F. Seelig, Inc., 294 U. S., at 522-524; or to create jobs by keeping industry within the State, Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1, 10; Johnson v. Haydel, 278 U. S. 16; Toomer v. Witsell, 334 U. S., at 403-404; or to preserve the State’s financial resources from depletion by fencing out indigent immigrants, Edwards v. California, 314 U. S. 160, 173-174. In each of these cases, a presumably legitimate goal was sought to be achieved by the illegitimate means of isolating the State from the national economy.

Also relevant here are the Court’s decisions holding that a State may not accord its own inhabitants a preferred right of access over consumers in other States to natural resources located -within its borders. West v. Kansas Natural Gas Co., 221 U. S. 229; Pennsylvania v. West Virginia, 262 U. S. 553. These cases stand for the basic principle that a “State is without power to prevent privately owned articles of trade from being shipped and sold in interstate commerce on the ground that they are required to satisfy local demands or because they are needed by the people of the State.” Foster-Fountain Packing Co. v. Haydel, supra, at 10.

The New Jersey law at issue in this case falls squarely within the area that the Commerce Clause puts off limits to state regulation. On its face, it imposes on out-of-state commercial interests the full burden of conserving the State’s remaining landfill space. It is true that in our previous cases the scarce natural resource was itself the article of commerce, whereas here the scarce resource and the article of commerce are distinct. But that difference is without consequence. In both instances, the State has overtly moved to slow or freeze the flow of commerce for protectionist reasons. It does not matter that the State has shut the article of commerce inside the State in one case and outside the State in the other. What is crucial is the attempt by one State to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade.

The appellees argue that not all laws which facially discriminate against out-of-state commerce are forbidden protectionist regulations. In particular, they point to quarantine laws, which this Court has repeatedly upheld even though they appear to single out interstate commerce for special treatment. See Baldwin v. G. A. F. Seelig, Inc., supra, at 525; Bowman v. Chicago & Northwestern R. Co., 125 U. S., at 489. In the appellees’ view, ch. 363 is analogous to such health-protective measures, since it reduces the exposure of New Jersey residents to the allegedly harmful effects of landfill sites.

It is true that certain quarantine laws have not been considered forbidden protectionist measures, even though they were directed against out-of-state commerce. See Asbell v. Kansas, 209 U. S. 251; Reid v. Colorado, 187 U. S. 137; Bowman v. Chicago & Northwestern R. Co., supra, at 489. But those quarantine laws banned the importation of articles such as diseased livestock that required destruction as soon as possible because their very movement risked contagion and other evils. Those laws thus did not discriminate against interstate commerce as such, but simply prevented traffic in noxious articles, whatever their origin.

The New Jersey statute is not such a quarantine law. There has been no claim here that the very movement of waste into or through New Jersey endangers health, or that waste must be disposed of as soon and as close to its point of generation as possible. The harms caused by waste are said to arise after its disposal in landfill sites, and at that point, as New Jersey concedes, there is no basis to distinguish out-of-state waste from domestic waste. If one is inherently harmful, so is the other. Yet New Jersey has banned the former while leaving its landfill sites open to the latter. The New Jersey law blocks the importation of waste in an obvious effort to saddle those outside the State with the entire burden of slowing the flow of refuse into New Jersey’s remaining landfill sites. That legislative effort is clearly impermissible under the Commerce Clause of the Constitution.

Today, cities in Pennsylvania and New York find it expedient or necessary to send their waste into New Jersey for disposal, and New Jersey claims the right to close its borders to such traffic. Tomorrow, cities in New Jersey may find it expedient or necessary to send their waste into Pennsylvania or New York for disposal, and those States might then claim the right to close their borders. The Commerce Clause will protect New Jersey in the future, just as it protects her neighbors now, from efforts by one State to isolate itself in the stream of interstate commerce from a problem shared by all. The judgment is

Reversed.

Mr. Justice Rehnquist,

with whom The Chief Justice joins,

dissenting.

A growing problem in our Nation is the sanitary treatment and disposal of solid waste. For many years, solid waste was incinerated. Because of the significant environmental problems attendant on incineration, however, this method of solid waste disposal has declined in use in many localities, including New Jersey. “Sanitary” landfills have replaced incineration as the principal method of disposing of solid waste. In ch. 363 of the 1973 N. J. Laws, the State of New Jersey legislatively recognized the unfortunate fact that landfills also present extremely serious health and safety problems. First, in New Jersey, “virtually all sanitary landfills can be expected to produce leachate, a noxious and highly polluted liquid which is seldom visible and frequently pollutes . . . ground and surface waters.” App. 149. The natural decomposition process which occurs in landfills also produces large quantities of methane and thereby presents a significant explosion hazard. Id., at 149, 156-157. Landfills can also generate “health hazards caused by rodents, fires and scavenger birds”* and, “needless to say, do not help New Jersey’s aesthetic appearance nor New Jersey’s noise or water or air pollution problems.” Supp. App. 5.

The health and safety hazards associated with landfills present appellees with a currently unsolvable dilemma. Other, hopefully safer, methods of disposing of solid wastes are still in the development stage and cannot presently be used. But appellees obviously cannot completely stop the tide of solid waste that its citizens will produce in the interim. For the moment, therefore, appellees must continue to use sanitary landfills to dispose of New Jersey’s own solid waste despite the critical environmental problems thereby created.

The question presented in this case is whether New Jersey-must also continue to receive and dispose of solid waste from neighboring States, even though these will inexorably increase the health problems discussed above. The Court answers this question in the affirmative. New Jersey must either prohibit all landfill operations, leaving itself to cast about for a presently nonexistent solution to the serious problem of disposing of the waste generated within its own borders, or it must accept waste from every portion of the United States, thereby multiplying the health and safety problems which would result if it dealt only with such wastes generated within the State. Because past precedents establish that the Commerce Clause does not present appellees with such a Hobson’s choice, I dissent.

The Court recognizes, ante, at 621-622, that States can prohibit the importation of items “ ‘which, on account of their existing condition, would bring in and spread disease, pestilence, and death, such as rags or other substances infected with the germs of yellow fever or the virus of small-pox, or cattle or meat or other provisions that are diseased or decayed, or otherwise, from their condition and quality, unfit for human use or consumption.’ ” Bowman v. Chicago & Northwestern R. Co., 125 U. S. 465, 489 (1888). See Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 525 (1935); Sligh v. Kirkwood, 237 U. S. 52, 59-60 (1915); Asbell v. Kansas, 209 U. S. 251 (1908); Railroad Co. v. Husen, 95 U. S. 465, 472 (1878). As the Court points out, such “quarantine laws have not been considered forbidden protectionist measures, even though they were directed against out-of-state commerce.” Ante, at 628 (emphasis added).

In my opinion, these cases are dispositive of the present one. Under them, New Jersey may require germ-infected rags or diseased meat to be disposed of as best as possible within the State, but at the same time prohibit the importation of such items for disposal at the facilities that are set up within New Jersey for disposal of such material generated within the State. The physical fact of life that New Jersey must somehow dispose of its own noxious items does not mean that it must serve as a depository for those of every other State. Similarly, New Jersey should be free under our past precedents to prohibit the importation of solid waste because of the health and safety problems that such waste poses to its citizens. The fact that New Jersey continues to, and indeed must continue to, dispose of its own solid waste does not mean that New Jersey may not prohibit the importation of even more solid waste into the State. I simply see no way to distinguish solid waste, on the record of this case, from germ-infected rags, diseased meat, and other noxious items.

The Court’s effort to distinguish these prior cases is unconvincing. It first asserts that the quarantine laws which have previously been upheld “banned the importation of articles such as diseased livestock that required destruction as soon as possible because their very movement risked contagion and other evils.” Ante, at 628-629. According to the Court, the New Jersey law is distinguishable from these other laws, and invalid, because the concern of New Jersey is not with the movement of solid waste but with the present inability to safely dispose of it once it reaches its destination. But I think it far from clear that the State’s law has as limited a focus as the Court imputes to it: Solid waste which is a health hazard when it reaches its destination may in all likelihood be an equally great health hazard in transit.

Even if the Court is correct in its characterization of New Jersey’s concerns, I do not see why a State may ban the importation of items whose movement risks contagion, but cannot ban the importation of items which, although they may be transported into the State without undue hazard, will then simply pile up in an ever increasing danger to the public’s health and safety. The Commerce Clause was not drawn with a view to having the validity of state laws turn on such pointless distinctions.

Second, the Court implies that the challenged laws must be invalidated because New Jersey has left its landfills open to domestic waste. But, as the Court notes, ante, at 628, this Court has repeatedly upheld quarantine laws "even though they appear to single out interstate commerce for special treatment.” The fact that New Jersey has left its landfill sites open for domestic waste does not, of course, mean that solid waste is not innately harmful. Nor does it mean that New Jersey prohibits importation of solid waste for reasons other than the health and safety of its population. New Jersey must out of sheer necessity treat and dispose of its solid waste in some fashion, just as it must treat New Jersey cattle suffering from hoof-and-mouth disease.. It does not follow that New Jersey must, under the Commerce Clause, accept solid waste or diseased cattle from outside its borders and thereby exacerbate its problems.

The Supreme Court of New Jersey expressly found that ch. 363 was passed “to preserve the health of New Jersey residents by keeping their exposure to solid waste and landfill areas to a minimum.” 68 N. J. 451, 473, 348 A. 2d 505, 516. The Court points to absolutely no evidence that would contradict this finding by the New Jersey Supreme Court. Because I find no basis for distinguishing the laws under challenge here from our past cases upholding state laws that prohibit the importation of items that could endanger the population of the State, I dissent.

         New Jersey enacted a Waste Control Act, N. J. Stat. Ann. § 13:1/-1 et seq. (West Supp. 1978), in early 1973. This Act empowered the State Commissioner of Environmental Protection to promulgate rules banning the movement of solid waste into the State. Within a year, the state legislature enacted ch. 363, which reversed the presumption and blocked the importation of all categories of waste unless excepted by rules of the Commissioner.

       Effective as of February 1974, these regulations provided as follows:
      “ (a) No person shall bring into this State, or accept for disposal in this State, any solid or liquid waste which originated or was collected outside the territorial limits of this State. This Section shall not apply to:
      “1. Garbage to be fed to swine in the State of New Jersey;
      “2. Any separated waste material, including newsprint, paper, glass and metals, that is free from putrescible materials and not mixed with other solid or liquid waste that is intended for a recycling or reclamation facility;
      “3. Municipal solid waste to be separated or processed into usable secondary materials, including fuel and heat, at a resource recovery facility provided that not less than 70 per cent of the thru-put of any such facility is to be separated or processed into usable secondary materials; and
      “4. Pesticides, hazardous waste, chemical waste, bulk liquid, bulk semi-liquid, which is to be treated, processed or recovered in a solid waste disposal facility which is registered with the Department for such treatment, processing or recovery, other than by disposal on or in the lands of this State.” N. J. Admin. Code 7:1-4.2 (Supp. 1977).

       The decision of the New Jersey Supreme Court disposed of the appellants’ pre-emption and Commerce Clause claims, but remanded the case to the trial court for further proceedings on the other claims. The appellants then dismissed with prejudice the other counts in their complaint so that there would be a final judgment from which they could appeal to this Court.

       The surviving provisions of the 1965 Solid Waste Disposal Act, 79 Stat. 997, the Resource Discovery Act of 1970, 84 Stat. 1227, and the Resource Conservation and Recovery Act of 1976, 90 Stat. 2795, are now codified as the Solid Waste Disposal Act, found at 42 U. S. C. § 6901 et seq. (1976 ed.).
      From our review of this federal legislation, we find no “clear and manifest purpose of Congress,” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230, to pre-empt the entire field of interstate waste management or transportation, either by express statutory command, see Jones v. Rath Packing Co., 430 U. S. 519, 530-531, or by implicit legislative design, see City of Burbank v. Lockheed Air Terminal, 411 U. S. 624, 633. To the contrary, Congress expressly has provided that “the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies . . . .” 42 U. S. C. §6901 (a)(4) (1976 ed.). Similarly, ch. 363 is not pre-empted because of a square conflict with particular provisions of federal law or because of general incompatibility with basic federal objectives. See Ray v. Atlantic Richfield Co., 435 U. S. 151, 158; Jones v. Rath Packing Co., supra, at 540-541. In short, we agree with the New Jersey Supreme Court that ch. 363 can be enforced consistently with the program goals and the respective federal-state roles intended by Congress when it enacted the federal legislation.

       U. S. Const., Art. I, § 8, cl. 3.

       We express no opinion about New Jersey's power, consistent with the Commerce Clause, to restrict to state residents access to state-owned resources, compare Douglas v. Seacoast Products, Inc., 431 U. S. 265, 283-287, with id., at 287-290 (Rehnquist, J., concurring and dissenting); Toomer v. Witsell, 334 U. S. 385, 404; or New Jersey’s power*to spend state funds solely on behalf of state residents and businesses, compare Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 805-810; id., at 815 (SteveNS, J., concurring), with id., at 817 (BeeNNAN, J., dissenting). Also compare South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U. S. 177, 187, with Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 783.

       Congress specifically recognized the substantial dangers to the environment and public health that are posed by current methods of disposing of solid waste in the Resource Conservation and Recovery Act of 1976, 90 Stat. 2795. As the Court recognizes, ante, at 621 n. 4, the laws under challenge here “can be enforced consistently with the program goals and the respective federal-state roles intended by Congress when it enacted” this and other legislation and are thus not pre-empted by any federal statutes.

       Regulations of the New Jersey Department of Environmental Protection “except from the ban on out-of-state refuse those types of solid waste which may have a value for recycling or for use as fuel.” App. 47. Thus, the ban under challenge would appear to be strictly limited to that waste which will be disposed of in sanitary landfills and thereby pose health and safety dangers to the citizens of New Jersey.