A recent decision by the U.S. Supreme Court to deny review of a Third Circuit Court of Appeals case on flow control brings hope to counties that the 1994 Carbone decision was far narrower than originally believed.
On March 18, the court let stand the Third Circuit’s ruling that upheld the flow control ordinance adopted by Mercer County, Pa. (See County News, Nov. 13, 1995, p.1)
Because the court did not issue an opinion, but simply denied review, there remains uncertainty over what the justices may do if presented with a different set of facts from another part of the country.
Since the ruling applies only to localities within the Third Circuit, it is not definitive law. However, counties in other federal circuit court jurisdictions may cite the ruling in similar cases in their areas. (See Third Circuit Criteria for Non-Discrimanatory Flow Control)
Mercer County in western Pennsylvania decided it would be efficient to contract with a single waste facility to dispose of the county’s trash. Under a county ordinance that promoted competition in waste disposal, the county issued a request for proposals (RFP) that it advertised nationally in trade journals and commercial publications. Initially, 23 companies responded, including Tri-County Industries, Inc., which already collected waste in the area and owned a landfill in the county. The successful bidder was a landfill in adjoining Butler County, Pa.
Disregarding the county’s flow control ordinance, Tri-County refused to use the designated facility and delivered some of its waste to two other facilities in Ohio that charged lower tipping fees.
Mercer County notified Tri-County that it was planning to revoke the company’s license for violation of the flow control ordinance. In response, Tri-County filed in court seeking to find the ordinance unconstitutional under the to Carbone decision.
In spite of the fact that the process for choosing the designated facility was widely advertised and open to both in-state and out-of-state facilities, the federal trial court ruled in favor of Tri-County.
Mercer County appealed to the Court of Appeals for the Third Circuit, which reversed the trial court decision and held that the flow control ordinance did not interfere with interstate commerce.
The Court said that merely because the ordinance required the use of a particular facility within the state of Pennsylvania, and prohibited the use of any other facility, did not per se establish a violation of the Commerce Clause.