Self-Haul Ban Upheld

A municipal ordinance does not affect interstate commerce by preventing waste generators from hauling their own garbage to an in-state landfill of their choice and requiring them to use a designated disposal site, according to a federal appeals court ruling. [On the Green Apartments, L.L.C. v. City of Tacoma, No. 98-35976, 9th Cir., March 12, 2001]

The city of Tacoma, Wash., requires all local businesses and residents to use municipal waste collection services. Special self-haul permits are available to some generators, but all waste must be transported to the city's disposal facility.

On the Green Apartments (OGA) operates a large residential complex in Tacoma, and wants to haul garbage generated by the apartment-dwellers to nearby landfills outside the city. By using these sites, OGA's transportation and disposal costs would be considerably less than what it would pay the city for such services.

After the city denied OGA's request for a self-haul permit, the company filed suit in federal district court, alleging that the city law discriminates against interstate commerce. U.S. District Judge Robert J. Bryan dismissed the case on the grounds that the city had the right to eliminate the trash collection and disposal market by substituting city services. OGA appealed.

The U.S. Court of Appeals for the Ninth Circuit agreed with Judge Bryan that the case should be dismissed, but gave different reasons. For starters, OGA and other waste generators lack the legal standing to challenge the city's ban on self-hauling. Citing a 1997 Ninth Circuit ruling on a similar ordinance in Washoe County, Nev., the appellate panel reiterated that “being forced to pay for unwanted garbage services was ‘not even marginally related to the purposes underlying the … Commerce Clause.’” OGA, the court noted, still would have to pay for unwanted collection services even if the city transported the waste across state lines.

As for the “disposal monopoly,” that is, requiring self-haulers to use the city landfill, the appeals court ruled that OGA had legal standing to challenge the city's designation of a disposal site. Being a self-hauler, the company could benefit financially from a decision allowing it to dispose of trash outside the city, the appeals court found.

However, the court ultimately found that the city ordinance “cannot be said to burden interstate commerce or impede its free flow” where the ordinance exclusively affects intrastate commerce. Although the ordinance prevents the disposal of locally generated wastes outside the city and, thus, outside the state, OGA did not claim that it had plans to cross state lines. If the city ordinance was overturned or simply did not exist, OGA's preferred destination would be a landfill within the state of Washington. To “depriv[e] landfills in King and Pierce County of access to Tacoma's waste,” as OGA alleges, describes an impediment that is “exclusively intrastate in nature,” the opinion stated.

The columnist is a Washington, D.C., attorney and serves as general counsel of the Solid Waste Association of North America, Silver Spring, Md.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected]