Phat Lady Zings, The

Scales in one hand, a sword in the other. Lady Justice symbolizes our judicial system, which gives the U.S. Supreme Court the last word on legal battles great and small.

For many waste company owners, the new year got off to a dismal start when, on January 7, the high court announced that it would not review two key lower court decisions on flow control.

Last summer, a New York federal appeals court ruled that the formidable “strict scrutiny” standard of review does not apply to ordinances requiring locally generated wastes to be transported to designated publicly owned facilities. Instead, the court stated, the requirement can be upheld if legitimate local benefits outweigh the burdens on interstate commerce. [United Haulers Association, Inc., et al. v. Oneida-Herkimer Solid Waste Management Authority, 261 F.3d 245 (2d Cir. 2001)] (See related article, Waste Age, October 2001, page 99)

The hapless haulers asked the high court in October 2001 to review the case, arguing that if the appeals court had correctly applied the Carbone ruling, the ordinances would have been struck down. Their petition was supported by a friend-of-the-court brief from the National Solid Wastes Management Association and several trade organizations. The waste authority's formal opposition to the petition was endorsed by the New York State Association for Solid Waste Management, which also submitted a friend-of-the-court brief.

Why was this case not accepted for review? A likely reason: the federal district judge ruled against the waste authority without giving it a chance to offer evidence in its defense. Last year, the Supreme Court jettisoned a fully briefed and argued high-profile case. It did so after finding that the lower courts never considered whether a disadvantaged business program satisfied the strict scrutiny standards that are applicable when such programs are challenged on constitutional grounds. “We ordinarily do not decide in the first instance issues not decided below,” the court said. [Adarand v. Mineta, No. 00-730, Nov. 27, 2001 (per curiam)]

The high court's decision to reject the appeal reportedly has stirred discussion and activity within a number of local jurisdictions — in New York and elsewhere — on possible facility designation measures.

Meanwhile, on the same day the high court declined to hear the New York case, the justices also rejected an appeal of a decision by a federal appeals court in Ohio.

Last May, a three-judge appellate panel ruled that a county solid waste management agency created under Ohio law does not unconstitutionally burden interstate commerce by requiring all solid waste collected within the county to be hauled to designated transfer stations and disposal sites. [Maharg, Inc. v. Van Wert Solid Waste Management District, 249 F.3d 544 (6th Cir. 2001)] Notably, both in-state and out-of-state facilities are eligible for designation if they agree to collect a per-ton fee on all waste from the county.

Keep an eye on this space for further developments. As the famously quotable Yogi Berra would say, “The future ain't what it used to be.”

The columnist is a Washington, D.C., attorney and serves as general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].