Constitutional Limitations on Anticompetitive State and Local Solid Waste Management Schemes: A New Frontier in Environmental Regulation

Abstract

The enactment of the Resource Conservation and Recovery Act (RCRA) and the expansion of the scope of interstate commerce have "nationalized" solid waste management, a field that was formerly the exclusive domain of state and local governments. Today, state and local governments act as both sovereigns and market participants in the solid waste management context; nonetheless, these entities may limit the role of private market participants in the solid waste management field only in a manner that does not obstruct the Sherman Act's objectives. Abate and Bennett explore the limits that the Sherman Act, the Commerce Clause, and the Supremacy Clause impose on anticompetitive state and local solid waste management activities within the framework of RCRA's regulatory scheme. The authors explain how the "market participant" doctrine illuminates the nature of the interplay among RCRA, the Sherman Act, and the Commerce and Supremacy Clauses and argue that this doctrine may provide the missing analytical link in resolving questions in this new area of the law. The Article concludes that any governmental entity held by a court to be acting as a market participant in a solid waste management scheme should be subject to possible antitrust liability for anticompetitive conduct. Such a rule would preclude such entities from using the state action immunity doctrine to avoid dormant Commerce Clause scrutiny