HAPPY BIRTHDAY CARBONE! May 16 is the 10th anniversary of the Supreme Court decision ruling that flow control violates the U.S. Constitution's Commerce Clause. On that day, the court ruled that unelected authorities and local governments could not designate the disposal facility that private and public sector haulers had to use. Haulers and cities, instead, could choose the disposal facility they wanted to use.
Immediately after the decision, flow control proponents lobbied Congress to enact legislation overturning Carbone. (Congress has the authority to allow states to impose limits on interstate commerce.) They worried about the dire consequences that would occur without the ability to designate disposal sites.
We were warned that “major disruptions and chaos in the management of MSW would occur,” that the bonds of previously flow-controlled facilities would be worthless, that recycling was doomed and landfills would prosper. One consultant wrote an article rallying the faithful with the battle cry, “Never Surrender Leadership!” Good grief, you'd think the Carbone decision was the Alamo of solid waste management.
Flow control forces came close to victory. Their bill passed the House but died in the Senate. For the next few years, proponents kept pushing Congressional legislation but got no further than an EPA study. And to their great embarrassment, EPA concluded that flow control was not essential to recycling and environmental laws helped guarantee environmental safety.
The issue often was portrayed as a battle between the private sector and public sector. Yet mayors were often flow control's most ardent opponents because they had to raise taxes to pay for someone else's designated facility. A majority of New Jersey mayors, conservative and liberal, Republican and Democratic, opposed flow control.
And when a Hennepin County, Minn., commissioner was testifying in Congress in favor of flow control, the city council of Minneapolis, the largest city in his county, unanimously passed a resolution opposing it.
Eventually, interest in the issue died down. The environment did not suffer, the bonds were paid, garbage was still collected and the recycling rate continued to rise. Life went on. Then, two years ago, in the Oneida-Herkimer case, the Second Circuit Court of Appeals — whose ruling the Supreme Court reversed in Carbone — got a second chance. Using language from Carbone's minority opinions, the court ruled that flow control was permissible when applied to publicly owned facilities. Relying on the minority opinion is a novel way to create laws. It's the equivalent of ruling that Georgia Tech really won the college men's basketball crown, even though the University of Connecticut scored more points, because, well, we just like the Georgia Tech team better.
Oneida-Herkimer is still wending its way through the judicial process. My guess is that its supporters don't want to let the Supreme Court have the final say again.
As for me, here's a toast to Carbone. Long may it live!
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 state programs director for the Environmental Industry Associations, Washington, D.C.