NSWMA Wins Flow Control Case Against Mississippi Waste Authority

A FEDERAL DISTRICT COURT in Mississippi has ruled that local governments' flow control laws directing solid waste to a waste authority's facilities violate the Commerce Clause [NSWMA v. Pine Belt Solid Waste Mgmt. Auth., S.D. Miss. (Apr. 23, 2003)].

After members of a Mississippi waste authority passed flow control laws requiring all solid waste to be disposed at the authority's landfill or its three transfer stations, the National Solid Wastes Management Association (NSWMA), Washington, D.C., and several of its members sued, alleging the laws violate the Commerce Clause.

The court agreed, maintaining that the U.S. Supreme Court's analysis in the Carbone decision applied. The court rejected the “public/private” distinction developed by a federal appeals court in the United Haulers case in 2001.

In that case, the court stated that if the designated waste facility is owned by a local government, the flow control law in question is not “per se invalid” but is reviewed under a much more lenient balancing test.

According to Barry Shanoff, general counsel for the Silver, Spring, Md.-based Solid Waste Association of North America (SWANA), the Mississippi decision may not bear notable influence over flow controls. “I don't consider this ruling to be particularly significant or indicative of a trend,” Shanoff says. “It's an isolated lower court ruling on a set of facts that the court itself found were distinguishable from the United Haulers situation.”

However, the NSWMA expects the decision will force the authority and others to reduce costs to be competitive with private sector facilities, and may deter some local governments from adopting flow control laws, according to Bruce Parker, NSWMA's president. “This case and other recent decisions demonstrate United Haulers is an oddball decision,” he says.