A Higher Authority

The WASHINGTON-BASED NATIONAL Solid Wastes Management Association (NSWMA) has asked the U.S. Supreme Court to review a federal appeals court decision that reinstalled flow control laws in Mississippi last year. The association made the request by filing a petition for writ of certiorari with the high court. BFI Waste Systems of North America Inc. (owned by Scottsdale, Ariz-based Allied Waste Industries) and the Mississippi affiliates of BFI and Houston-based Waste Management Inc. joined NSWMA in making the request.

David Biderman, general counsel for NSWMA, says the organization hopes to know by the end of June (when the Supreme Court concludes its current term) whether the high court will review the ruling.

The legal saga began in 2002, when the Pine Belt Regional Solid Waste Management Authority in Mississippi directed its member local governments to adopt ordinances requiring all locally generated solid waste to be taken to the authority's facilities. NSWMA, BFI and the Mississippi affiliates of BFI and Waste Management filed suit, alleging that the ordinances violated the federal Commerce Clause by discriminating against the interstate flow of the collected waste.

The plaintiffs also contended that even if the ordinances did not discriminate against the interstate movement of trash, they were unlawful because they created burdens on interstate commerce that outweighed any putative local benefits.

After a trial, a federal district court judge agreed with NSWMA and its members and struck the ordinances down in 2003. However, in October 2004, the U.S. Court of Appeals for the Fifth Circuit reversed the decision.

The appeals court dismissed the discrimination claim because the haulers in the suit were not taking the waste they collected outside of Mississippi and had no plans to do so. Consequently, the court determined that the plaintiffs did not have the legal standing to challenge the ordinances on the grounds that they discriminated against interstate commerce. The appeals court also ruled that the ordinances did not create an excessive burden on interstate commerce. The ordinances then went into effect on April 1, 2005.

NSWMA and the private haulers argue that the Supreme Court should review the case because the Mississippi appeals court decision on the plaintiffs' legal standing is contrary to decisions by appeals courts in other federal circuits. The petitioning parties also assert that the appeals court erred in the way it applied the test balancing the burdens on interstate commerce against local interests.

Biderman says the chances that the high court will agree to review a case “are always slim, [but] because there seems to be a split between the federal courts on the legal issues presented in our petition, NSWMA is hopeful that the court will grant the petition this time.”

Barry Shanoff, general counsel for the Solid Waste Association of North America, Silver Spring, Md., says the Supreme Court is unlikely to review the case. “The Supreme Court generally doesn't bail out litigants who might not have been the best parties to bring a lawsuit, nor does it get involved in bickering about the outcome of a balancing test,” he says.