Washington, D.C. - Despite the Supreme Court's flow control ruling in C&A Carbone Inc. v. Clarkstown, N.J., last May, the question of whether local governments have the power to route solid waste to a particular site is still up for debate.
In the Carbone case, the court struck down a law requiring local waste haulers to dispose of waste at a local transfer station. The court said the purpose of the law, to finance the station, is reached by "depriving competitors, including out-of-state waste firms, of access to local markets," thus violating the Commerce Clause.
In a new case, the commercial waste services industry and local governments in New Jersey have filed suit against a flow control ordinance requiring haulers in Northvale, N.J., to deliver waste to one of four transfer stations within Bergen County, N.J., for shipment to an incinerator in Essex County, N.J.
The lawsuit charges that consumers in two New Jersey towns are paying more than $1 million too much for waste services and that New Jersey's flow control ordinance violates the Commerce Clause of the U.S. Constitution as interpreted in C&A Carbone Inc. v. Clarkstown, N.Y.
The plaintiffs in the New Jersey case are New York-based C&A Carbone Inc.; Jersey City, N.J.; Northvale, N.J.; the New Jersey Chapter of the National Solid Wastes Management Association and the Waste Management Association of New Jersey.
The lawsuit names the New Jersey Department of Environmental Protection and Energy; the Bergen County Utilities Authority, the Hudson County Improvement Authority; and officials in Bergen and Hudson counties as defendants.
"This lawsuit is about protecting consumers from monopoly pricing," said Allen R. Frischkorn Jr., president and chief executive officer of the Environmental Industries Associations, Washington, D.C. "Flow control is against the public interest. It creates inefficiency and higher costs without any benefit to the environment or public health."
Flow control is not necessarily the answer for every city's solid waste management problems, but it is one of the many tools that should be available, said Barry Shanoff, legal counsel for the Solid Waste Association of North America as well as several local governments. "It allows local governments to carry out their prime responsibility: to plan and manage solid waste control in this country."