On Jan. 7, the U.S. Supreme Court decided not to review a recent flow control appeals court decision. The decision [United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, 2d Cir. July 27, 2001] overturned an earlier ruling stating that New York's Oneida and Herkimer counties' flow control ordinances discriminated against the Commerce Clause of the U.S. Constitution.
Last fall, the United Haulers filed a Petition for Certiorari asking the Supreme Court to review the appeals court decision. The Washington, D.C.-based National Solid Wastes Management Association (NSWMA) filed an amicus brief in support of the petition. The Oneida-Herkimer Solid Waste Management Authority then filed an opposition to the United Haulers petition, which was supported by an amicus brief filed by the New York State Association for Solid Waste Management.
The NSWMA's amicus brief, which was joined by several non-waste business groups, argued that the appeals court decision conflicts with the Supreme Court's 1994 ruling in C&A Carbone Inc. v. Town of Clarkstown, which found that Clarkstown, N.Y.'s flow control law violated the Commerce Clause. But because the Carbone case involved a privately owned facility, the appeals court said that the rules did not apply.
The second circuit court of appeals, which represents New York, Vermont and Connecticut, returned the case to the federal district court, directing it to follow more lenient guidelines when dealing with a publicly owned facility. According to David Biderman, general counsel for the NSWMA, under the appeals court's analysis, when a publicly owned facility is involved, a court will uphold a flow control law unless the burden on interstate commerce substantially exceeds the public benefits.
But soon after the case was returned to the federal district court, United Haulers filed the petition, which barred any action by the federal district court until the Supreme Court made its decision. Now that the Court decided it will not hear the case, the federal district court will proceed.
It is important to note, says Barry Shanoff, a Washington, D.C. solid waste attorney, that “when the Supreme Court declines to accept a case for review, it does not necessarily mean that the court agreed with the decision … All you can say is that the Court didn't feel like hearing the case.” In this instance, Shanoff says, “On a national basis, the federal circuit courts seem to have the [flow control] situation pretty well under control and know how they want to deal with local government initiatives.”
Shanoff adds that a number of New York communities may want to consider regulations and requirements similar to the one in Oneida-Herkimer counties. “By putting together a substantial enough justification … [local governments] think that lawsuits can be successfully defended.”
Biderman contends that the “NSWMA and its members will vigorously oppose” any actions taken to re-establish flow control. The overall message, he says, is that local governments may be tempted to re-establish flow control based on the Supreme Court's refusal to hear the case. He adds that “the second circuit decision is not applicable in most of the United States, and local governments should wait until further clarification is provided by their federal courts before considering re-establishing flow control.”
Michael J. Cahill, an independent lawyer representing Oneida and Herkimer counties, says, “[The decision is not] necessarily going to have a major impact on the way municipalities handle solid waste,” citing that the legal proceedings would too difficult to bear.
According to Steve Changaris, NSWMA's Northeast manager, Madison County, N.Y., has in place an ordinance and has held hauler meetings to discuss moving forward with flow control. Changaris cautions other New York counties to make serious business plans before attempting to re-establish flow control. “There are several counties in New York that do not even [publicly] own the facility,” he says.
All parties to the lawsuit are scheduled to meet with a federal magistrate on Feb. 12 to discuss a discovery and briefing schedule for the case in federal district court.