Like death and taxes, the solid waste business often attracts lawyers. For example, the simple act of incorporating a business or executing a contract to buy a truck can require legal counsel.
Unfortunately, contact with the legal profession is unlikely to stop there. Disputes with suppliers and employees, zoning issues, flow control and interstate restrictions, and aggressive enforcement of applicable health, safety and environmental rules often can spawn lawsuits. As a result, business owners should include legal costs in annual budgets and business plans. These expenses can be substantial.
One benefit to joining National Solid Wastes Management Association (NSWMA) or Waste Equipment Technology Association (WASTEC), both Washington, D.C.-based, is that members have the ability to jointly initiate and direct litigation — without bearing all costs and burdens. Association membership provides access to experienced legal professionals who are familiar with the industry and can provide general advice. Working together, members can collaborate with other companies to fund and initiate lawsuits to achieve common business goals.
Having an association's assistance also is helpful at the state, local, district or county levels, where being part of a team can benefit the bottom line. Often, any one of these government levels will pass a law or issue a regulation that adversely affects several waste haulers. If each hauler hires its own lawyers and files separate lawsuits, this would be inefficient and costly.
NSWMA provides a mechanism for members to pool their legal resources and coordinate actions in response to a legal threat. Additionally, NSWMA's expertise and experience can streamline legal research and the filing of briefs, further reducing legal fees.
During the past seven years, the industry has pursued dozens of new lawsuits and decisions defining the contours and limits of the Supreme Court's anti-flow control decision in the Carbone decision. Smithtown, Babylon, Harvey & Harvey, Atlantic Coast Recycling are a few more prominent case names, and the list continues. Creative government lawyers have invented reasons why Carbone should not apply to their clients, and sometimes, a court agrees. The newest, and potentially most disturbing, exception to Carbone developed last year in the United Haulers case in New York.
In this case, a federal appeals court ruled that Carbone's prohibition against flow control does not apply if a local government owns the designated disposal facility. Although several courts invalidated flow control laws under similar circumstances, the U.S. Supreme Court recently declined to resolve the conflict, and counties in New York and elsewhere now are re-establishing flow control. NSWMA filed an amicus brief with the Supreme Court in the United Haulers case, and intends to fight the re-emergence of flow control, which likely will be a major issue for the industry in 2002.
NSWMA and its members frequently litigate whether states or local governments can keep out other state's solid waste. Despite a series of Supreme Court decisions in the early 1990s that struck down various state efforts to block the import of out-of-state waste, some states continue to seek ways to slow down, if not stop, the movement of solid waste across state lines.
As more and more lawsuits arise within the waste industry, a primer on NSWMA litigation may be useful. NSWMA initiates and manages state and federal court litigation on behalf of its members as requested and approved by appropriate decision-making bodies within the association.
If a state law issue is involved, usually the appropriate NSWMA state chapter is responsible for deciding whether to file a lawsuit. Federal issues are handled by an NSWMA task force consisting of volunteers from large and small companies who decide whether the association should file a lawsuit or an amicus brief.
Legal dealings can be an unfortunate fact in the solid waste business. Again, NSWMA provides a way for member companies to reduce their legal fees, achieve common business objectives, and access “free” legal advice and strategic expertise on the management and implications of litigation.
Challenging a solid waste district's flow control ordinance or a state's effort to keep out a neighboring state's solid waste is a lot easier when the resources and expertise of your trade association are behind you.
David Biderman is the Washington, D.C.-based Environmental Industry Association's general counsel. Contact the author at (202) 364-3743. E-mail: [email protected].