National Association of Counties * Washington, DC / Vol. 30, No. 14 * July 20, 1998

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The 8th Circuit Court of Appeals ruled on June 12 that a key section of Minnesota's flow control statute is constitutional under the Commerce Clause, and that the plaintiffs lacked standing to challenge it. In the latest round of attacks on the flow control authority of states and local governments by the National Solid Waste Management Association (NSWMA), the court upheld Minnesota's flow control statute that requires counties to implement comprehensive solid waste management plans.

Another part of the statute directs public entities that manage solid waste to comply with the county's plan.

Seventeen counties in Minnesota have plans that designate specific sites for disposal of public waste; in those counties, local governments and schools contract with the designated landfill or waste-to-energy facility for their solid waste.

NSWMA argued that the laws were unconstitutional because they prevent local governments from sending their waste to NSWMA-member landfills. The court strongly disagreed, holding that Minnesota was acting as a "market participant," not a regulator, in directing the choices of local government units in waste disposal.

"[Local governments] are created by the state, controlled by the state, and subject to the absolute power of the state " wrote Circuit Judge C. Arlen Beam, therefore, "Public entities should not be considered independent of the state when they contract for the removal of their waste."

Because the state's actions in adopting the statutes were performed as part of its role as a purchaser of waste disposal services, it is a mere market participant, the court said, and the Commerce Clause does not apply.

The court also held that NSWMA had no standing to bring the lawsuit because its waste hauling contractors did not qualify as public entities under the statute, preventing them from demonstrating any injury to its members.