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Its Day in Court

Flow control will once again have its day in court — and this time at the highest court in the nation. At the end of September, the U.S. Supreme Court agreed to hear the United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority (N.Y.) case, which has been a possibility since an appeals court decision in the spring. A Supreme Court reversal of the lower court's decision would provide the industry with a more clear-cut standard by which to judge flow control.

The U.S. Court of Appeals for the Second Circuit in March ruled that the authority's ordinances requiring haulers to take trash to a publicly owned and operated landfill did not violate the dormant Commerce Clause of the U.S. Constitution. From a practical standpoint, the decision only affected New York, Connecticut and Vermont — the three states that make up the Second Circuit.

But from a broader perspective, the decision contrasted with the rulings in other flow control cases, including the recent decision in NSWMA v. Daviess County, Ky., which likely increased its chances for a Supreme Court review. Unlike in the Supreme Court's landmark 1994 C&A Carbone v. Clarkstown case, in which Clarkstown, N.Y., required all waste generated to be processed at a privately owned transfer station, Daviess County granted nonexclusive franchise agreements only to haulers that disposed of collected waste at the county's landfill or transfer station.

While the Sixth Circuit Court of Appeals ruled against Daviess County, the Second Circuit Court upheld the Oneida-Herkimer ordinance, agreeing that the local benefits of the ordinance, such as funding for the county's waste management program, trumped all other considerations, including the issue of the burden on interstate commerce.

As a result of the Second Circuit Court ruling, there is a discrepancy between the Second Circuit and Sixth Circuit regarding whether there is a “public sector exception” under Carbone, according to the National Solid Wastes Management Association (NSWMA), Washington. “NSWMA is very pleased that the Supreme Court will be reviewing this decision, and we are hopeful they will overturn it,” says David Biderman, general counsel for the association. NSWMA previously filed an amicus brief supporting the Petition for Writ of Certiorari filed by the United Haulers group with the Supreme Court.

When asked to respond to the court's decision, Barry Shanoff, general counsel for the Silver Spring, Md.-based Solid Waste Association of North America (SWANA), commented, “To paraphrase songwriter Sammy Cahn, cert [petition for certiorari] is better the second time around.” A petition previously was filed asking to the Supreme Court to review the case, but was turned down in early 2002. As a result, some local governments, particularly in New York, began considering systems involving flow control, according to Biderman.

In determining whether an ordinance violates the Commerce Clause, courts first look at whether a government is regulating, rather than solely participating in, a market. If the government is regulating a market, then the court must decide whether the activity discriminates against interstate commerce. The ordinance, however, still is not deemed unconstitutional if the local benefits of the regulation — as the Oneida Herkimer Solid Waste Management Authority argued — outweigh the burden on commerce, a measure known as the Pike (Pike v. Bruce Church) balancing test.

According to Biderman, briefs in the case will be presented this fall and the case will be argued before the Supreme Court in January. A decision is expected in the spring.

Waste Age will continue to report on developments in the case both in the magazine and on our Web site.