 National Association of Counties * Washington, D.C. Vol. 31, No. 17 * September 13, 1999 Previous story | Table of Contents | Next story Contradictory court decisions cloud flow control issue By Scott M. Duboff
In the nearly five years since the U.S. Supreme Court’s decision in the C. & A. Carbone vs. Town of Clarkstown case, which overturned the solid waste flow control ordinance of Clarkstown, N.Y., lower federal courts continue to grapple with implementation of the Court’s Carbone decision and determining legally permissible variations of flow control. Inconsistent results regarding the validity of flow control ordinances have been the outcome of these decisions. One example can be found in two recent federal court decisions: Houlton Citizens’ Coalition vs. Town of Houlton, Maine, an April 22 decision upholding flow control by the U.S. Court of Appeals for the 1st District, and Coastal Carting Ltd. vs. Broward County, Florida, a May 5 decision by a federal district court overturning flow control. A principal aspect of the Town of Houlton case was the appeals court’s interpretation of the U.S. Supreme Court’s Carbone decision. Carbone involved an ordinance that required all of Clarkstown’s municipal solid waste to be delivered to a designated transfer station within the town’s boundaries. The town arranged for a private contractor to construct and operate the transfer station in exchange for a guaranteed volume of tonnage at a pre-established price (“tipping fee”). The tipping fee was higher than the price of other disposal sites. Clarkstown adopted its flow control ordinance to secure delivery of sufficient waste to satisfy its contractual obligations to the transfer station operator. The U.S. Supreme Court ruled in 1994 that Clarkstown’s flow control ordinance violated the Constitution’s Commerce Clause by stopping out-of-state competitors’ access to Clarkstown’s “market” for waste processing services, and discriminating against interstate commerce. The Court held that Clarkstown’s ordinance had effectively imposed a ban on the importation of waste processing services “for the benefit of local businesses.” Subsequent lower court decisions have emphasized that the fault identified in Carbone was favoritism of a particular waste management facility for parochial, local interests and not the fact that a flow control ordinance may result in the selection of a single service provider to the exclusion of other service providers. The Town of Houlton case is an example. The 1st Circuit rejected the notion that Carbone stands for “a broad-based ban on every flow control ordinance that happens to be coupled with an exclusive contractual arrangement in favor of an in-state operator.” To the contrary, the proper question to be asked, said the 1st Circuit, is “whether all interested bidders were allowed to compete freely on a level playing field.” In upholding Houlton’s flow control ordinance, the 1st Circuit concluded that “unrestricted access to the bidding process constitute access to the relevant market.” Coastal Carting Ltd. vs. Broward County, Fla. In contrast to Town of Houlton, the trial court in the Broward County case overturned the flow control ordinance at issue in the case. A principal factor underlying the Florida case was that the plaintiff trash hauler was engaged only in intrastate commerce (within Florida) rather than interstate commerce. Contrary to substantial precedent in other cases, the Broward County court concluded that the absence of evidence of flow control affecting interstate commerce was irrelevant. The case also appears to imply that if the end result of a flow control ordinance limits a hauler’s choice in waste disposal locations, the fairness and competitiveness of the bidding process is irrelevant as well. In this author’s view, the Town of Houlton case is the far more persuasive of these decisions, and is supported by a substantial body of precedent authorizing local governments to select a single provider of waste services in various contexts.
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