Six years ago, the U.S. Supreme Court ruled in the Carbone case that flow control, or at least flow control as it was practiced in the town of Clarkstown, N.Y., violated the Commerce Clause of the U.S. Constitution.
At the time, there was a great deal of wailing and gnashing of teeth from flow control advocates and their bond salesmen. They predicted all sorts of dire consequences, including the collapse of recycling, if flow control was allowed to die. Some of them even predicted that pigs would graze in the streets as America's garbage systems fell into chaos.
Congressional attempts to overturn the Court ruling failed. Since then, our recycling rate has continued to rise and pigs haven't been seen in the streets.
In the years following the Carbone decision, some lower courts have whittled away at the Court's landmark ruling. The latest judicial assault against free markets occurred in the “Oneida-Herkimer” case.
In this decision, the Second Circuit Court of Appeals made the bizarre determination that the Carbone ruling only applied to privately owned facilities. The local haulers who sued the non-elected solid waste authority over its use of flow control have asked the Supreme Court to overturn the Appeals Court's decision. They have been joined in their appeal by other private sector groups, including the National Solid Wastes Management Association (NSWMA), Washington, D.C.
When the NSWMA announced its decision to join the lawsuit, the director of the Oneida-Herkimer solid waste authority questioned the private sector's motives. He claimed that his authority had secured 95 percent of the waste in the two counties through contracts with more than 300 haulers and generators. That, he said, is the essence of public-private cooperation.
But because the solid waste authority has contractually secured 95 percent of the available waste and because its director says he really wants to work together with the private sector, why does the authority need to force the other 5 percent of the garbage to use its facility? Since proclaiming its belief in cooperation, shouldn't the authority renounce flow control and rely completely on voluntary contracts?
The reason some facilities want to use flow control is very simple: the decision to build them was not based on markets or sound economics. And if managers can force haulers to use these facilities, they can treat their waste suppliers as hostages, not as customers.
Waiting an hour or two to unload a garbage truck, for instance, was common at pre-Carbone flow control facilities. Because they didn't need to compete for customers, many of those facility managers spent money as if it fell from heaven every day of the week. No wonder the use of flow control seems to be a sign of a facility that can't justify its existence.
So now a flow control facility manager praises cooperation but lacks the confidence that his facility can operate without forcing people to be his customers. I don't know what the Supreme Court will decide, but cooperation is based on mutual respect and consent — not on force or threats of coercion.
Opinions in this column do not necessarily reflect the National Solid Wastes Management Association or the Environmental Industry Associations. E-mail the author at: [email protected].
The columnist is director, state programs for the Environmental Industry Associations, Washington, D.C.