Counties victorious in Supreme Court flow control case

By Julie Ufner
Associate Legislative Director

In one broad stroke, the U.S. Supreme Court decided the legality of flow control, and local governments came out the winners. 

The justices, in a 6–3 decision, ruled in favor of Oneida and Herkimer counties in New York, essentially upholding local ordinances that required waste haulers to deliver their trash to a publicly operated processing site.

The April 30 ruling in United Haulers v. Oneida-Herkimer Solid Waste Management Authority (N.Y.), No. 05-1345 now frees local governments, if they wish, to direct the flow of trash in their jurisdictions to a publicly owned waste facility. It does not apply to interstate trash.

The decision stands in stark contrast to a 1994 Supreme Court decision, C&A Carbone v. Clarkstown, that essentially stripped away local governments’ authority to use flow control.

The difference between these two cases is clear-cut — if it involves a publicly owned facility, counties can use flow control for local garbage. However, if the solid waste facility is privately owned, flow control directives cannot be used.

United Haulers claimed that the flow control ordinances violate the Commerce Clause of the U.S. Constitution by discriminating against interstate commerce. They argued that without the ordinance and locally imposed tipping fees, they would be able to dispose of trash across state borders for less.

The justices disagreed with United Haulers, stating that the counties’ flow control ordinances, “which treat in-state private business interests exactly the same as out-of-state ones, do not discriminate against interstate commerce.”

The justices went on to say that this case was different than Carbone, because it dealt with a publicly owned trash facility, which benefits the community. The local “government’s important responsibilities” include protecting “the health, safety, and welfare of its citizens.” For this reason, when a facility is publicly owned, it sets itself apart from other private businesses.

The Oneida-Herkimer case started when the two New York counties, formed a solid waste authority to replace an outdated and inefficient solid waste system. The 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 changed for disposal of non-recyclable waste.

The case itself focused on the counties’ use of flow control. The appellants argued that the counties’ policy was anticompetitive since Oneida-Herkimer had sent all of its residential waste to a publicly owned and operated New York landfill since 1998. The appellants argued that other facilities, either in or out-of-state, should have been able to compete for that waste.

This decision opens the road to other local governments considering similar proposals, essentially giving them the green light to dispose local trash in an environmentally friendly way. It does not bar a local government from exporting its trash to out-of-state, should they choose to do so.

While this was a big win for local governments, it was a huge hit to the waste haulers, possibly prompting them to take their case to Congress in the coming months.