In the Third Circuit case, the court established a series of tests to determine whether a flow control ordinance that directs waste to a particular in-state site discriminates against interstate commerce.
The rule, according the Third Circuit, is that a court must examine: 1) the designation process; 2) the duration of the designation and 3) the likelihood of an amendment to the ordinance that would add additional sites.
For an ordinance to be unconstitutional, there must be indications that out-of-state bidders did not, in fact, enjoy equal access to the local market.
Under the Tri-County decision, the court also noted that the plaintiff bears the burden of showing that the designation process favors in-state sites.
Demonstrating an unfair process can include whether there is direct evidence of favoritism, or a bid specification that appears neutral on its face but has the effect of giving in-state sites an advantage (such as a specified proximity requirement).
The county can refute charges of discrimination by presenting evidence demonstrating that the designation process was “open, fair, and competitive.”
Such evidence can be the bid solicitation, selection criteria and evaluation of bidders information. If this is insufficient to show the neutrality of the process, the county could also use statistical evidence or expert testimony.
The court also suggested that local governments that have adopted flow control ordinances would be wise to demonstrate that the goals of the designation process included capacity assurance and the protection of public health and safety. Failure to rebut a showing of discrimination will subject the flow control ordinance to strict scrutiny and likely invalidation.