dormant commerce clause in New Jersey

2001Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County, 112 F. 3d 652, 667 (3d Cir.), cert. denied, 522 U.S. 967 , 118 S.Ct. 413 , 139 L.Ed.2d 316 (1997), amended, 135 F.3d 891 (3d Cir.1998) {Atlantic Coast II)- In the wake of that decision, the DEP issued an order in August 1997 requiring all solid waste disposal districts to review their strategies in view of the Atlantic Coast II mandate and, if necessary, adopt plan amendments.

2000Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders, 112 F.3d 652, 667 (3d Cir.), cert, denied, 522 U.S. 966 , 118 S.Ct. 413 , 139 L.Ed.2d 316 (1997), amended, 135 F.3d 891 (3d Cir.1998) {Atlantic Coast II).

2012Our Court has followed the Complete Auto test, noting that [t]he [Complete Auto ] test will sustain a state tax using a formula apportionment method “[ (1) ] when the tax is applied to an activity with a substantial nexus with the taxing State, [ (2) ] is fairly apportioned, [ (3) ] does not discriminate against interstate commerce, and [ (4) ] is fairly related to the services provided by the State.” [Whirlpool Props., Inc. v. Dir., Div. of Taxation, 208 N.J. 141, 163 , 26 A.3d 446 (2011) (quoting Complete Auto, supra, 430 U.S. at 279, 97 S.Ct. at 1079 , 51 L.Ed.2a at 331).] Here, the Ordinan

2012Our Court has followed the Complete Auto test, noting that [t]he [Complete Auto ] test will sustain a state tax using a formula apportionment method “[ (1) ] when the tax is applied to an activity with a substantial nexus with the taxing State, [ (2) ] is fairly apportioned, [ (3) ] does not discriminate against interstate commerce, and [ (4) ] is fairly related to the services provided by the State.” [Whirlpool Props., Inc. v. Dir., Div. of Taxation, 208 N.J. 141, 163 , 26 A.3d 446 (2011) (quoting Complete Auto, supra, 430 U.S. at 279, 97 S.Ct. at 1079 , 51 L.Ed.2a at 331).] Here, the Ordinan

1999The Tax Court opinion also held that it did not matter whether the transporter fee is labeled as a user fee, tax, flat tax, or a flat annual fee because the essential question under American Trucking Associations, Inc. v. Scheiner, 488 U.S. 266 , 295, 107 S.Ct. 2829, 2846 , 97 L.Ed.2d 226, 250 (1987) is whether interstate commerce has been burdened.

1999The Tax Court opinion also held that it did not matter whether the transporter fee is labeled as a user fee, tax, flat tax, or a flat annual fee because the essential question under American Trucking Associations, Inc. v. Scheiner, 488 U.S. 266 , 295, 107 S.Ct. 2829, 2846 , 97 L.Ed.2d 226, 250 (1987) is whether interstate commerce has been burdened.

1999In Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County, 931 F.Supp. 341, 358 (D.N.J. 1996), the district court struck down as unconstitutional under the dormant commerce clause ( U.S. Const. art.

1987Although I am not prepared to agree that balancing lacks any appropriate role in commerce clause adjudication, it is clear to me that, if and when done, balancing should be performed with far more care and with far more sensitivity to the Legislature’s policy determinations than the plurality has exhibited here. “[A] court should not [invalidate state legislation under the dormant commerce clause] merely because it believes it to be in the public interest to determine policy where Congress has not.” Continental Trailways, Inc. v. Director, Div. of Motor Vehicles, 102 N.J. 526, 553 (1986) (O’He

1987Although I am not prepared to agree that balancing lacks any appropriate role in commerce clause adjudication, it is clear to me that, if and when done, balancing should be performed with far more care and with far more sensitivity to the Legislature's policy determinations than the plurality has exhibited here. "[A] court should not [invalidate state legislation under the dormant commerce clause] merely because it believes it to be in the public interest to determine policy where Congress has not." Continental Trailways, Inc. *308 v. Director, Div. of Motor Vehicles, 102 N.J. 526, 553 (1986)

1987See CTS Corp. v. Dynamics Corp., ___ U.S. ___, ___, 107 S.Ct. 1637, 1652 , 95 L.Ed.2d 67, 89 (1987) (Scalia, J., concurring). “[SJuch an inquiry,” Justice Scalia wrote, “is ill suited to the judicial function and should be undertaken rarely if at all.” Id.

1987See CTS Corp. v. Dynamics Corp., ___ U.S. ___, ___, 107 S.Ct. 1637, 1652 , 95 L.Ed.2d 67, 89 (1987) (Scalia, J., concurring). “[SJuch an inquiry,” Justice Scalia wrote, “is ill suited to the judicial function and should be undertaken rarely if at all.” Id.