Friends in High Places

John B. Bogart, editor of the editor of the New York Sun newspaper in the late 19th century, once famously remarked, “When a dog bites a man, that's not news, because it happens so often. But if a man bites a dog, that is news.” One might be reminded of that quote after discovering who is supporting whom in the flow control case currently before the U.S. Supreme Court.

Last month, the high court heard oral arguments in United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, No. 05-1345. The key issue is whether a local government discriminates against interstate commerce if it requires collected solid waste to be transported to a designated public facility.

Nearly 13 years ago, which is the last time the high court heard a garbage case, the justices ruled, by a 6-3 margin, that a municipality illegally interfered with commerce by mandating that all waste be processed at a designated private facility. [C&A Carbone v. Town of Clarkstown, 511 U.S. 383.] Indeed, five justices who currently serve on the court were part of the majority that said the local restriction amounted to outright discrimination.

For the most part, the “usual suspects” have predictably lined up on each side of the current controversy. The National Solid Wastes Management Association, the American Trucking Associations and the National Association of Manufacturers jointly filed an amicus curiae (friend-of-the-court) brief on the side of the haulers. Five years ago, the trio teamed in an unsuccessful bid to get the Supreme Court to review an earlier appeals court ruling in the case. Not surprisingly, the waste authority is backed by seven amicus briefs from an assortment of public entities and coalitions of states and local governments.

What's notable, though, is the support each side is getting from what some may consider unlikely sources.

Two rural counties in Virginia have chimed in with an amicus brief on the side of the haulers. Both counties host state-of-the-art landfills that receive sizable amounts of out-of-state waste. The revenue they derive from the landfill operations constitutes a significant amount of what they can spend on public services. Although they are unaffected by the Second Circuit decision, they want the high court to overturn the ruling in order to preserve the “viability of the … interstate waste disposal market.” Their participation sends a message to the justices that the effects of flow control vary from jurisdiction to jurisdiction. In fact, so-called “protectionist measures,” which, the two counties claim, would shrink the volume of transboundary waste shipments, would be downright harmful to some communities.

Meanwhile, a pro-business group, consisting of a non-profit economic development corporation and 10 hauling companies serving residential and commercial customers throughout Oneida and Herkimer counties, filed an amicus brief fully endorsing the counties' flow control policies and related benefits to the business community from a “financially viable comprehensive waste management plan.” What seems to be particularly attractive to the group is the protection from environmental liability that the plan provides.

The wide-ranging support that both sides have puts the lie to the notion that choosing sides in flow control simply depends on whether one gets a public or private paycheck.

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.