its constitutional claim in defense of a criminal prosecution for future violations of the regulation. Finally, it urges this Court, as a federal court, to abstain under the "Pullman Doctrine" from a decision on constitutional grounds as to the validity of purely local legislation not yet considered by a local tribunal.
Shayne responds that none of the usual reasons obtain here for insisting upon a prior resort to the administrative process before suit. It admits that it was in violation of the regulation in March, 1983, and it expects in the future to collect trash in Maryland and bring it into the District if it can do so legally. A fact-finding hearing is, thus, unnecessary. No special administrative expertise is involved, and no on-going administrative proceedings will be disrupted, none having been commenced or even contemplated by either party. To the extent unconstitutionality might be a defense to a criminal prosecution, it is unlikely ever to receive a hearing. Shayne's grievance is with the District's right to evict it from its landfills, whether or not it is ever prosecuted for attempting to enter them by force or stealth.
It is true, of course, that federal courts are to avoid "needless friction with state policies" by refraining from constitutional adjudication concerning them when a decision by a state court on other than constitutional grounds might make an end of the controversy. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 500, 61 S. Ct. 643, 645, 85 L. Ed. 971 (1941). It appears that D.C.Regulation 8-3:609 has yet to receive a construction by a District of Columbia court, and until it does it is impossible to say for a certainty that it may be lawfully applied as it has been to Shayne. Abstention is, however, generally appropriate only when state law is ambiguous or unsettled, not merely unconstrued, see Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S. Ct. 507, 511, 27 L. Ed. 2d 515 (1971), and if there is a saving construction to be put upon Regulation 8-3:609 without assaying the burden it places upon interstate movement of waste materials, the District has yet to suggest it. The regulation is impeccably clear: the District can reject refuse from other jurisdictions, or impose conditions upon its receipt not imposed upon identical matter entering its waste disposal process from a point within the city, for any reason or none.
Abstention for the sake of federal-state harmony alone is not required, Colorado River Water Conservation District v. United States, 424 U.S. 800, 813-14, 96 S. Ct. 1236, 1244-45, 47 L. Ed. 2d 483 (1976), and the Court declines to await a decision by a District of Columbia court on an issue now properly before it. See Timmons v. Andrews, 538 F.2d 584, 585-86 (4th Cir.1976); Silver v. Woolf, 538 F. Supp. 881, 883-85 (D.Conn.1982), affirmed, 694 F.2d 8 (2d Cir.1982), cert. denied, 460 U.S. 1070, 103 S. Ct. 1525, 75 L. Ed. 2d 948 (1983).
Assuming that the conservation of a finite capacity to dispose of discarded substances within its territorial limits as unoffendingly as possible is a legitimate local public interest, it is clear that D.C.Regulation 8-3:609 is less than "even-handed" in its treatment of domestic and foreign waste. If the Commerce Clause applies, the regulation's compatability with it cannot be determined solely by balancing its incidental regulatory burden on the traffic in the commodity with the importance of the local interest it subserves. See Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 847, 25 L. Ed. 2d 174 (1970). Being avowedly protectionist in purpose and effect, as a regulatory measure it could stand only if no nondiscriminatory alternative can be devised, Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 353, 97 S. Ct. 2434, 2446, 53 L. Ed. 2d 383 (1977), and, if it is considered as legislation which is intended to bar the commodity from intra-District destinations altogether, Shayne contends that it is within the "virtually per se rule of invalidity" of Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S. Ct. 2531, 2535, 57 L. Ed. 2d 475 (1978).
In Philadelphia v. New Jersey, supra, the Supreme Court held invalid a New Jersey statute resembling D.C.Regulation 8-3:609 which provided, in pertinent part, that, without prior leave from administrative authorities, "no person shall bring into this State . . . any solid or liquid waste which originated or was collected outside the territorial limits of this State." N.J. Admin. Code 7:1-4.2 (Supp.1977). Reversing a judgment of the Supreme Court of New Jersey, the Supreme Court rejected its conclusion that "valueless waste" was not an article of commerce at all, 437 U.S. at 622, 98 S. Ct. at 2534, and declared that, whether the legislative purpose was to protect New Jersey's economy or its environment, laudable as both might be, the absence of a distinction between in-state and out-of-state waste, in terms of their comparative harmfulness to either, infected the statute with the "evil of protectionism" which the Commerce Clause forbids. Id., 437 U.S., at 626-27, 98 S. Ct. at 2536-37. New Jersey might "pursue those ends by slowing the flow of all waste into the State's remaining landfills," it said, but it could not do so by means of "isolating the State from the national economy." Id.
Philadelphia v. New Jersey was decided, however, in the context of an action by operators of private landfills in New Jersey and their municipal customers in other states to strike down a statute which (with one exception)
attached no significance to the point of destination of the proscribed cargo within the state, or, for that matter, whether it was to remain within the state or was merely in transit. Neither did the Supreme Court attach significance to the omission, other than to note that it was expressing ". . . no opinion about New Jersey's power, consistent with the Commerce Clause, to restrict to state residents access to state-owned resources, [citations omitted]. . . ." Id., 437 U.S., at 627-28 n. 6, 98 S. Ct. at 2537-38 n. 6. It is that pregnant footnote, and the cases cited, which, the District says here, distinguishes Philadelphia v. New Jersey from the instant case.
Among the cases cited in footnote six was Hughes v. Alexandria Scrap, 426 U.S. 794, 96 S. Ct. 2488, 49 L. Ed. 2d 220 (1976), upholding a Maryland statute designed to clear the landscape of abandoned automobiles by authorizing the payment of state-funded bounties for Maryland-titled wrecks to in-state scrap processors upon less onerous title-document requirements than those demanded of out-of-state processors. Reversing the judgment of a three-judge district court which had found the statute to be an impermissible burden upon interstate commerce, the Supreme Court said:
The common thread of [cases finding impermissible burdens upon interstate commerce in state regulatory regimes] is that the State interfered with the natural functioning of the interstate market either through prohibition or through burdensome regulation. By contrast, Maryland has not sought to prohibit the flow of hulks, or to regulate the conditions under which it may occur. Instead, it has entered the market itself to bid up their price.
Id., 426 U.S., at 806, 96 S. Ct. at 2496. The court continued to hold that the entry by a state itself into a market and then favoring its own citizens with its trade is not the type of trade barrier forbidden by the Commerce Clause. Id., 426 U.S., at 808-10, 96 S. Ct. at 2496-98.
Three justices dissented in Alexandria Scrap, asserting that the majority opinion represented a "reinterpretation of the Commerce Clause and [a] repudiation of established principles guiding judicial analysis thereunder," 426 U.S. at 817, 96 S. Ct. at 2501.
Thereafter, in Reeves, Inc. v. Stake, 447 U.S. 429, 100 S. Ct. 2271, 65 L. Ed. 2d 244 (1980) a majority of five justices upheld the constitutionality of a state administrative ruling giving state residents priority over non-residents in purchasing cement (a commodity then in short supply) from a state-owned plant. Rejecting an argument that the policy underlying the ruling was to "hoard" its natural resources, the majority held that cement, as the end product of a complex manufacturing process, was "not a natural resource, like coal, timber, wild game, or minerals" (or, for another, landfill sites, citing Philadelphia v. New Jersey) for which the Commerce Clause mandates an untrammelled national market. 447 U.S. at 443, 100 S. Ct. at 2281. The court reaffirmed the distinction between the state as vendor or purchaser in, as opposed to regulator of, interstate commerce, saying:
The basic distinction drawn in Alexandria Scrap between States as market participants and States as market regulators makes good sense and sound law. As that case explains, the Commerce Clause responds principally to state taxes and regulatory measures impeding free private trade in the national marketplace. . . . There is no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market.
Id., 447 U.S., at 436-37, 100 S. Ct. at 2277-78. The "protectionism" held to be inimical to the Commerce Clause in Philadelphia v. New Jersey, supra, is not found in
. . . rules restricting to state residents the enjoyment of state educational institutions, energy generated by a state-run plant, police and fire protection, and agricultural improvement and business development programs. Such policies, while perhaps "protectionist" in a loose sense, reflect the essential and patently unobjectionable purpose of state government -- to serve the citizens of the State.