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Supreme Court to hear garbage ‘flow control’ case
By Julie Ufner
Associate Legislative Director
In a pivotal case for counties, the U.S. Supreme Court will take on the issue of solid waste flow control that could decide once and for all the legalities of flow control.
In January, United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority (N.Y.) heads to the Supreme Court. This case concerns the constitutionality of “flow control” authority. Flow control authority is embodied in local regulations that direct the delivery of waste to a facility designated by the local government.
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What is flow control?
Flow control can be defined as the laws, regulations and economic incentives (or disincentives) used to direct waste generated in a specific geographic area to a designated landfill, recycling or waste-to-energy facility. Flow control allowed counties to decide how much waste and what kind of waste they received.
Flow control has previously been a fundamental tool allowing scores of NACo-member communities to implement local decisions for managing municipal waste in the most environmentally sound and economically efficient manner, while at the same time relying on private enterprise for waste management services whenever possible. Such integrated municipal waste management systems address resource recovery, waste reduction, recycling and household hazardous waste collection, among other issues.
There were several primary reasons for the use of flow control. Flow control authority was the main tool used by counties to enforce solid waste plans to meet waste reduction and recycling goals. Many counties used flow control to guarantee the investment in municipal bonds that were issued to pay for the construction of solid waste facilities, such as a waste-to-energy plant. The ability to use flow control was the mechanism used to guarantee the needed waste volume to pay off the facility.
When flow control was ruled unconstitutional in 1994, many waste facilities went belly up, leaving counties millions of dollars in debt because they were unable to guarantee the flow of waste.
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The Oneida-Herkimer case started when two counties, Oneida and Herkimer, formed a solid waste authority to replace an outdated and inefficient solid waste system. Their comprehensive plan was approved in 1991 and emphasized waste reduction and recycling. It included a key component — flow control — to direct trash to environmentally friendly facilities. The plan included a tipping fee that was charged to waste haulers for disposal of non-recyclable waste.
The case itself centers on the counties’ use of flow control. The appellants, United Waste Haulers, argue that flow control is anticompetitive since Oneida-Herkimer has sent all of its residual waste to a publicly owned and operated New York landfill since 1998. The appellants argue that other facilities, either in-state or out-of-state, are able to compete for that waste.
This case comes 13 years after the Supreme Court decided C&A Carbone v. Clarkstown, essentially stripping away flow control authorities. Over the years, other flow control cases moved through the courts, however, the Commerce Clause was upheld.
In the landmark Carbone case, the Supreme Court ruled against a local ordinance that required all solid waste generated within Clarkstown to be delivered to a privately owned local facility.
The Supreme Court decided in Carbone that this local law was a violation of the Commerce Clause of the U.S. Constitution because it “discriminated” against interstate commerce disallowing other disposal facilities, in and out of that state, from competing for the waste.
While on the surface both the United Hauler and the Carbone cases seem to be similar, there is a significant difference noted by the courts — the differences between privately owned transfer stations vs. publicly owned/operated landfills.
It was the opinion of one of the lower courts that because the Oneida-Herkimer trash was taken to a publicly owned and operated landfill, flow control did not violate the Constitution’s Commerce Clause, since the facility does not compete with other privately owned local businesses. However, other courts have rejected that argument, setting up an interesting debate in the Supreme Court which could ultimately decide the constitutionality of flow control authorities.
A decision is expected by June 2007.
NACo’s policy
NACo’s policy supports legislation that gives local governments the legal authority to control the flow of municipal solid waste (MSW) generated within their jurisdiction. Flow control authority gives counties the option to protect themselves and their citizens from Superfund liability at older landfills — which may not be environmentally sound — or resist the temptation to use cheaper, less environmentally sound landfills. The option to exercise flow control authority also allows states and local governments to create and sustain in-state waste disposal capacity, thereby moderating some of the pressures to export waste to other states.
Prior to 1994, a significant number of counties nationwide had the authority to use flow control, granted through their state legislatures. However, in 1994, that changed after the Carbone decision.
This ruling caused countless problems for many counties across the United States, especially those that made pre-Carbone financial commitments based on reliance on flow control authority. The consequences of Carbone have been scores of lawsuits and prolonged litigation for many flow control-reliant local governments, bond downgrades, curtailed capital expenditures for waste management and other services, termination of recycling and other vital environmental programs, increased local taxes and user fees, and default on bond indenture requirements.
(For more information, contact Julie Ufner, associate legislative director, at 202/942-4269 or jufner@naco.org.)
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