Legal Lode: Say What?

Legal Lode: Say What?

Federal court faults fuzzy phrasing of a flow control law.

Most Americans, one might suppose, know that the U.S. Constitution guarantees speech, religious and press freedoms. Earlier this year, however, the Intercollegiate Studies Institute reported the results of a five-year study of the public’s knowledge of our basic legal document. Sad to say, the average citizen gets an F, scoring just 54 percent on the 33-question civics test. Worse, those who identified themselves as public officeholders scored five points lower than the general public.

Thus, there’s little reason to believe that many people, least of all elected officials, would know about the constitutional right to actually understand what a law says. Take the case of an otherwise valid flow control law that was successfully challenged because it left a waste company confused about how it could do business.

The U.S. Supreme Court surprised the waste industry when it ruled that localities do not discriminate against interstate commerce by designating a municipal facility for the exclusive disposal of solid waste. [United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, 550 U.S. 330 (2007)] Stripped of a once-powerful legal argument, haulers have resorted to other legal attacks on flow control.

In 2009, JWJ Industries, Inc. and Jeffrey Holbrook, a JWJ officer and shareholder, filed suit against Oswego County, N.Y., in federal district court after the county enacted a flow control law covering waste generated within the county borders. The JWJ Transfer Station in Oswego County has a state permit allowing the facility to accept construction and demolition debris and solid waste originating within and outside of the county.

The plaintiffs’ asserted five constitutional grounds for invalidating the county flow control law: (1) taking of property without just compensation; (2) denying the plaintiffs due process; (3) denying the plaintiffs equal protection under the laws; (4) violating the plaintiffs’ civil rights; (5) being vague and overbroad. Notably, there was no reference to interstate commerce.

Limiting his analysis to the due process and vagueness claims, the trial judge ordered the county to stop enforcing its flow control law against JWJ until it “corrects and clarifies” what he called its “shortcomings.”

Generally speaking, a law violates due process if a reasonably intelligent person would have a hard time understanding what behavior, conduct or activity it prohibits. In addition, a law can be declared unconstitutionally vague if it opens the door to arbitrary and discriminatory enforcement. The latter aspect, which the U.S. Supreme Court regards as the key component of the legal analysis, mandates that laws contain minimal guidelines and explicit standards to forestall ad hoc and subjective implementation.

As the district court saw it, the flow control law contained contradictory language about which wastes had to be delivered to the county facility and which wastes could be disposed of elsewhere. Moreover, the court found, the law “does not address [C&D] debris originating out of county and brought in to the JWJ Transfer Station for recycling.” In short, the court agreed with JWJ that the law gave the company only “impossible options.” Last but not least, the court criticized the county’s “arbitrary and confusing interpretation” of the law.

“Simply stated, the County appears to have crafted its recycling and waste management law without consideration of the … licensed, fully operating waste disposal plant within its borders, or how the law should impact that private facility,” the judge observed.

The plaintiffs will undoubtedly return to court if the county fails to fix the wording “to … pass constitutional muster,” as the judge directed.

[JWJ Industries, Inc. and Jeffrey Holbrook v. Oswego County, No. 5:09-CV-0740, N.D.N.Y., June 13, 2011]

Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

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

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