Against the Flow

A FEDERAL APPEALS COURT has affirmed a lower court's decision that a Kentucky county's flow control ordinance is unconstitutional under the dormant Commerce Clause of the U.S. Constitution.

The January ruling by the U.S. Court of Appeals for the Sixth Circuit upheld a November 2004 decision by U.S. District Judge Joseph H. McKinley Jr. in a lawsuit filed against the Daviess County ordinance by the National Solid Wastes Management Association (NSWMA), Washington.

Daviess County passed the flow-control ordinance in February 2004. However, clearly anticipating NSWMA's lawsuit, the county did so with the provision that it would not enforce the law until the ordinance had been approved by a federal court. The ordinance would have required trash collectors wanting to operate in Daviess County to register for non-exclusive franchises with the county and dispose of their waste at either the county-owned landfill or the county-owned transfer station.

“We are pleased that the appeals court recognizes the long-standing prohibition against flow control and believes that eliminating this waste monopoly will lead to lower waste costs for haulers, businesses and homeowners in Daviess County, Ky.,” says David Biderman, general counsel for NSWMA.

“The outcome was perfectly predictable and a no-brainer,” says Barry Shanoff, general counsel for the Solid Waste Association of North America, Silver Spring, Md.

In February, lawyers for Daviess County filed a motion for reconsideration of the case. “I am hopeful that the court will deny the county's motion,” Biderman says.