Beyond the Pail

A federal law that divests state and local authority over motor carriers that transport property does not prevent local governments from regulating the collection of solid waste mixed with recyclable materials, according to a ruling by a federal appeals court.

In 1994, Congress deregulated intrastate trucking operations through the following provision: “[A] State [or] political subdivision of a State … may not enact or enforce a law … related to a price, route or service of any motor carrier … with respect to the transportation of property.” 49 U.S.C. § 14501(c). But the lawmakers did not define “property.”

AGG Enterprises (AGG) hauls source-separated recyclable materials from businesses and hauls mixed waste from construction sites to a recovery facility. As much as 50 percent of AGG's mixed loads is nonrecyclable.

Washington County, Ore., and the city of Beaverton, Ore., oversee trash and mixed waste collection through exclusive franchises with area haulers. Neither jurisdiction regulates source-separated recyclables, and any generator may self-haul its waste. Franchisees hold certificates or licenses from the local jurisdictions for residential and commercial collections, and within their designated areas they must serve all generators. Both jurisdictions prohibit hauling trash or mixed waste without a license or certificate.

AGG began soliciting business from commercial generators of mixed waste in areas already served by franchised haulers who were upset with AGG's attempt to cherry-pick the lucrative commercial jobs. After the city cited AGG for unauthorized solid waste collection, the company applied for a license. Neither the county nor the city has awarded a new license in decades. An applicant for a county certificate must show that a proposed service area is unallocated or inadequately served.

The city declined AGG's application.

AGG filed suit against the county and city in federal district court, which ruled that AGG is a “motor carrier,” that the recyclables mixed with the trash are “property” and that the 1994 federal law pre-empted the defendants' exclusive licensing schemes. The court permanently enjoined the defendants from limiting AGG's business.

The local governments, supported by friend-of-the-court briefs from local government organizations, appealed the ruling to the U.S. Court of Appeals for the Ninth Circuit, which rescinded the district court's injunction.

The opinion noted that federal law does not supersede local government authority, particularly in areas of strong and traditional local responsibility such as garbage collection, unless Congress makes such intent very clear. The appeals court referred to a statement in a Congressional report accompanying the legislation: “[T]he motor carrier … provision does not pre-empt … regulation of garbage and refuse collectors.”

Moreover, as the court saw it, even where a load contains some recyclable material, Congress expressed no desire to prevent localities from controlling the full contents.

Regrettably, the appeals court declined to decide the more difficult and fateful question: whether Congress intended to pre-empt local regulation of separated recyclables.

[AGG Enterprises v. Washington County, Ore., et al., No. 00-35449, 9th Cir., March 12, 2002]

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

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