Flow Gets Mo'

TWO HUNDRED YEARS AGO, AARON BURR, a New York state politician and the third Vice President of the United States, was tried on charges of treason for attempting to form and lead a republic in the Southwest. Burr was acquitted, but not before his case got to the U.S. Supreme Court, which, in a landmark opinion by Chief Justice John Marshall, ruled that the Sixth Amendment gave Burr the right to subpoena papers from Thomas Jefferson. [United States v. Burr (1807)]

In April, the high court, by a 6-3 margin, ruled that county ordinances that require all locally generated waste to be transported to a public facility for handling, but treat all private companies the same, do not discriminate against interstate commerce. Chief Justice John G. Roberts Jr., who wrote the majority opinion, quoted from Burr to help explain why the high court could decide as it did.

To find the connection between treason and trash, we start with C&A Carbone v. Clarkstown [511 U.S. 383 (1994)] where the Supreme Court ruled that an ordinance forcing haulers to deliver waste to a particular private facility discriminated against interstate commerce. As the court saw it, these restrictions amounted to economic protectionism.

The recent case presented the question of whether public ownership of a preferred facility made a difference. Yes, said the high court, a “constitutionally significant” difference. In particular, the chief justice noted that trash disposal is a “traditional government activity … and laws that favor the government in such areas — but treat every private business, whether in-state or out-of-state, exactly the same — do not discriminate against interstate commerce.”

The majority opinion rejected the haulers' contention that Carbone made no distinction “under the dormant Commerce Clause between laws favoring private entities and those favoring public ones.” Directly quoting Burr, the chief justice said that a court opinion “establish[ing] a principle never before recognized, should be expressed in plain and explicit terms.” The 1807 decision did so by unequivocally stating that the Sixth Amendment included the right to subpoena government papers. By comparison, he observed, Carbone declined to address the public-private question.

The opinion is remarkably free of nuance. “[T]reating public and private entities the same under the dormant Commerce Clause would lead to unprecedented and unbounded interference by the courts with state and local government,” the chief justice wrote. “The dormant Commerce Clause is not a roving license for federal courts to decide what activities are appropriate for state and local government to undertake, and what activities must be the province of private market competition.”

The decision upholds a New York federal appeals court ruling that ordinances passed by the Oneida-Herkimer Solid Waste Management Authority in New York state do not discriminate against interstate commerce and that the ordinances' public benefits outweigh any arguable burdens. [See “Flow Self-Esteem,” Waste Age, May 2006, p. 14]

Three dissenting justices found no meaningful distinction between the town ordinance in Carbone and the challenged county ordinances. They would have reversed the appeals court decision.

[United Haulers Association., Inc. v. Oneida-Herkimer Solid Waste Management Authority, No. 05-1345 (Apr. 30, 2007)]

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

The columnist is a Rockville, Md., attorney and serves as general counsel of the Solid Waste Association of North America.