High Court Denies Fee Hikes for Out-of-State Garbage : Law: Justices bar an Oregon statute that set a two-tier rate system. A ruling is also expected on consumer suit over frequent-flier program.

In a new setback for states trying to stem the flow of trash across their borders, the Supreme Court ruled Monday that government officials may not charge higher fees for dumping out-of-state garbage in their landfills.

The 7-2 decision strikes down an Oregon law that set a $3.10 per ton disposal fee for out-of-state solid waste and an 85-cent fee for waste generated in Oregon.

The court’s opinion strongly reaffirms its view that states may not discriminate against the interstate shipment of goods, even if those “goods” consist of garbage. Doing so is the type of “economic protectionism” barred by the Constitution, the justices said.

Also Monday, the court announced that it would rule on whether consumers can sue airlines under state laws for changing the terms of frequent-flier programs.

Lawyers representing 4 million frequent fliers have sued American Airlines under an Illinois consumer fraud law contending that the carrier cannot unilaterally change its rules. They challenged American’s new policy of limiting the number of seats available to holders of free tickets and increasing the number of “black-out days.”

The Illinois Supreme Court last year ruled that the suit can proceed because fliers who join the program have entered into an implied contract that one side cannot “change retroactively.”

But in their appeal to the high court, the airlines said that suit--as well as others like it--is preempted by the federal Airline Deregulation Act. That measure bars states from enforcing laws “relating to rates, routes and services” provided by the airlines.

The case (American Airlines vs. Wolens, 93-1286) to be heard in the fall likely will get wide attention because the major carriers have announced a series of rule changes in their frequent-flier programs.

The garbage case focuses on the conflict between the Constitution’s protection for interstate commerce and a state’s effort to protect its scarce landfills.

In recent years, Americans have shown an impressive ability to produce more trash. In 1990, the nation generated 196 million tons of municipal solid waste, nearly 50% more than in 1975. By the end of this decade, the annual total will reach 222 million tons, according to the Environmental Protection Agency.

But the Supreme Court has steadfastly barred states from trying to stop trash flow at their borders.

In a 1978 case involving trash moving from Philadelphia to New Jersey, the Supreme Court first ruled that trash is a commodity that states cannot keep out through strict regulation.

More recently, states have tried to impose fees to accomplish the same purpose but without success. Two years ago, the justices struck down an Alabama law that set a $72 per ton fee on shipments of hazardous waste crossing into the state.

However, the opinion in that case appeared to leave open the possibility that a state could set differing fees if it could show that it was more costly to dispose of waste from elsewhere.

Seizing on that theory, Oregon lawyers justified their differing fees by arguing that the state’s taxpayers subsidize the cost of recycling and the development of landfills and therefore deserve lower fees for disposing of waste.

But Monday’s ruling rejected that approach too. “The fact remains that the differential charge favors shippers of Oregon waste over their counterparts handling waste generated in other states,” Justice Clarence Thomas wrote for the court. “In making that geographic distinction, the surcharge patently discriminates against interstate commerce” and is therefore unconstitutional, he said.

Indiana is the only other state which has recently tried to impose higher charges on shipments of out-of-state trash. California does not have such a statute, according to lawyers in the case.

Dissenting in the case (Oregon Waste Systems vs. Oregon, 93-70) were Chief Justice William H. Rehnquist and Justice Harry A. Blackmun. A consistent defender of states’ rights, Rehnquist said that the court should not limit a state’s authority to protect a “clean and healthy environment.”

While the court has now made clear that states cannot restrict private haulers from shipping trash into their jurisdictions, it is not clear whether the same principle applies in reverse.

In December, the justices heard arguments on whether a suburban New York town can require all trash collected within its borders to be deposited at a city-owned trash collection facility. Such ordinances have become common in East Coast cities that have invested heavily in building trash-burning plants. However, the haulers say that the Constitution forbids all laws to bar the interstate shipments of goods, regardless of whether the flow is into the state or out of it. A ruling in the case (C&A; Carbone vs. Clarkstown, 92-1402) is pending.