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Barry Shanoff

January 1, 2007

3 Min Read
Flow Fracas

The top grossing film was Forrest Gump.” A players' strike prematurely ended the baseball season and caused the World Series to be cancelled. George W. Bush was elected governor of Texas. The year was 1994 — the last time the U.S. Supreme Court dealt with garbage.

In C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, the high court ruled that explicit flow control discriminated against interstate commerce. A few towns, cities and counties nevertheless persisted in using flow control, by ordinance or regulation, to achieve their waste management goals and objectives. With one prominent exception, such efforts have been consistently blocked or invalidated by federal appeals court rulings throughout the country.

The U.S. Court of Appeals for the Second Circuit, whose decisions have effect in New York, Vermont and Connecticut, ruled that governmental authorities may adopt and enforce an ordinance requiring waste haulers to transport all locally generated waste to designated publicly owned waste management facilities without discriminating against or burdening interstate commerce.

The ruling is based on the proposition that no discrimination exists where local and non-local (that is, in-state and out-of-state) private interests are equally affected by local regulation. Moving to the next level of analysis, the appeals court found that the impacts, if any, on interstate commerce were so minimal as to be outweighed by even modest proof of local benefits. [United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, 438 F.3d 150 (2d Cir. 2006).]

Now, 13 years later, the high court returns to trash handling. The haulers in the Second Circuit case have convinced the U.S. Supreme Court to hear the case. [S.Ct. Docket No. 05-1345.] The court's acceptance of the case is remarkable considering that five years ago it spurned a similar appeal by the haulers with virtually the same facts and legal arguments.

Labeling the county regulations as “classic protectionism,” the petitioners claim that haulers “might otherwise do business with out-of-state entities,” but instead “[are forced] to purchase waste processing and disposal services from an in-state facility.” The Carbone decision, they argue, leaves no room for the public-private distinction relied upon by the Second Circuit.

With their brief devoting about three times as many pages to the discrimination argument as to the burdens/benefits balancing exercise, it's apparent the petitioners expect their case to be won or lost on the former issue. As a practical matter, if the Supreme Court does not rule the ordinances discriminatory, and instead sends the case back to the lower courts to thrash out the burdens and benefits under some clarified standard, the haulers will have effectively lost.

For its part, the waste authority is confident that it will prevail. “The counties' laws treat all parties alike,” says attorney Michael J. Cahill, who wrote brief and will present the public side oral argument. “We believe the benefits of public management will trump the haulers' theories of injury to interstate commerce.”

Justice Anthony Kennedy wrote the Carbone majority opinion. He was joined by four other justices who, like Kennedy, are still on the court. A decision in the United Haulers case is expected sometime in the next few months.

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.

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