Melanie A. Lasoff

Intrastate commerce - in this case, garbage transporting services - is to be given the same protection under the United States Constitution's Commerce Clause afforded to interstate commerce, ac- cording to a recent ruling in a Broward County, Fla., U.S. District Court [Coastal Carting Ltd. Inc. v. Broward County, Fla., et. al.].

The case centered on Southern Florida-based solid waste hauler Coastal Carting, which sued the county and 23 of its 26 municipalities, alleging that their flow control ordinances are illegal and unconstitutional. The ordinances, which 23 of the county's municipalities had signed, require that waste collected within Broward County be disposed of at favored facilities. The ordinances call for costly tipping fees to dump the waste, and fines and penalties to Broward County haulers that do not dump at the favored facilities. Haulers that collect garbage outside Broward County but dump it at the county's sites are charged lower rates than Broward County haulers.

Although the ordinance pertains to solid waste moving within the state, presiding Judge Jose Gonzales states that it violates the Commerce Clause, which typically pertains to commerce between states. The county's ordinances restrict the freedom of the national market by discriminating in favor of local interests and by "erecting barriers against the free and unregulated movement of solid waste in interstate commerce," he states in his decision.

"The ordinances in this case clearly limit the flow of waste in interstate commerce and place Broward County in a position of economic isolation," he continues. "In essence, Broward County is hoarding the waste, and the demand to get rid of it, for the benefit of the preferred transfer stations."

Lawyers for Broward County did not return Waste Age's repeated phone calls. However, an environmental attorney who asked not to be named recalls a case a few years ago in the Midwest in which a federal appeals court ruled that the intrastate movement of trash is not subjected to the same regulations as interstate garbage.

"The judge [in Florida] did not give consideration to that ruling," he says of the Broward County case. "The fact is, there is a precedent out there for intrastate waste to be treated differently."

Broward County's argument relied on interstate and intrastate commerce being different, claiming that the county is at the southern tip of Florida and transported waste would remain in the state and not affect interstate commerce, the attorney says, summarizing the case.

"There is no suggestion in the opinion that the haulers would've moved this material out of state or that out-of-state waste processors were denied the opportunity to compete for the business," the anonymous lawyer says. "If haulers are forced to bring waste to one facility even though they want to bring it to another facility because it is cheaper, the hauler only is passing through the higher costs to the customer. So how is [the hauler] being damaged?"

Scott Mager, the attorney for Coastal Carting, calls the ruling "a victory for the small guy."

"This case will open a cause of action for any waste hauler harmed from this monopolistic statute," Mager says. "[The court] is not necessarily saying [haulers] couldn't go across state lines, but [it says] you can't restrict in a subdivision and get away with it."

Furthermore, the ruling has implications for haulers nationwide.

"This decision can be applied in any state that has a restrictive ordinance on waste flow - it has tremendous possibilities," he says. "Waste hauling rates will become more competitive, which will make a fair market and ultimately make things more efficient."

David Biderman, general counsel for the Environmental Industry Associations, Washington, D.C., says the judge's decision is good for the private sector but will have little affect outside Florida.

"Few states seek to regulate waste materials based on intrastate considerations, but in those states, this decision should act as a red flag to government authorities considering differentiating between intrastate and interstate commerce," he says. "It is yet another court decision confirming that the free market, rather than local political interests, should determine where waste is processed and disposed."

At press time, the court had not set a date to assess damages, and Broward County had not filed an appeal. The 23 municipalities filed a motion asking the judge to revisit some of the facts in the case. According to Mager, the court denied the motions.