Flow Self-Esteem

COUNTY ORDINANCES DO NOT discriminate against interstate commerce when they effectively create a monopoly on waste processing by forcing haulers to transport locally generated waste to designated publicly owned facilities, says a federal appeals court.

As seen by the U.S. Court of Appeals for the Second Circuit, the regulations don't favor local private entities at the expense of non-local private entities, according to a federal appeals court. Moreover, any purported burden on commerce created by preventing the counties' wastes from being processed by non-local facilities is greatly outweighed by the local benefits of the regulations.

In 1995, waste haulers in New York state and their trade group filed suit in federal district court against Oneida and Herkimer counties and a waste authority. The counties' laws requires haulers to bring locally collected waste to designated public facilities. The haulers argued that the measures discriminated against interstate commerce by restricting their access to other waste processing locations where the fees were lower.

Relying on C&A Carbone Inc. v. Town of Clarkstown, 511 U.S. 363 (1994), the district judge sided with the plaintiffs. On appeal, the U.S. Court of Appeals for the Second Circuit reversed the lower court decision. The appellate panel found no discrimination in the county laws: both local and non-local private businesses are equally affected.

The case was sent back to the lower court for a hearing on whether the laws' burden on commerce outweighed any local benefits [United Haulers Ass'n v. Oneida-Herkimer Solid Waste Management Authority, 261 F.3d 245 (2d Cir. 2001)]. (See related article, Waste Age, Oct. 2001, p. 99)

After failing to convince the U.S. Supreme Court to review the decision, the haulers returned to the district court, where the parties presented the undisputed facts and each side filed a motion for summary judgment in its favor. The motions were presented to a federal magistrate who, after considering the evidence and legal arguments, found no burdens on interstate commerce and recommended that the district court dismiss the lawsuit. The district judge agreed with the magistrate's findings and, in March, 2005, ruled in favor of the defendants.

Again, the haulers brought the case to the appeals court. This time, without actually deciding whether the ordinances impose a legally significant burden on commerce by blocking the export of locally generated waste to non-local facilities for processing, the appellate panel concluded that “local benefits of the flow control measures substantially outweigh whatever modest differential burden they may place on interstate commerce.”

“If a municipal government may eliminate the local private market for waste disposal services,” said the appeals court, “we think it necessarily follows that a local government imposes no more than a limited burden on interstate commerce when it creates a partial monopoly … at the processing stage ….”

Last month, this column reported on a federal appeals court decision on a flow control ordinance in Kentucky. The conflicting rulings now set the stage for yet another attempt by the haulers to convince the U.S. Supreme Court to resolve the issue.

[United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, 438 F.3d 150 (2d Cir. 2006)]

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.