Fighting Flow Control

One of the most basic things a waste hauler does is bring the trash it collects to a transfer station, landfill or incinerator. If a hauler owns a nearby disposal facility, it will probably want to use that facility. If it does not, a hauler usually selects its disposal facilities based on price, but convenience and location often play a role.

Local governments sometimes try to force haulers to dispose of trash at government-owned disposal facilities. They do this to ensure the financial viability of their disposal facilities, which are often unable to compete in a free market environment. This is usually called “flow control.”

On behalf of its members, the National Solid Wastes Management Association (NSWMA) strenuously opposes flow control. The practice creates local waste monopolies in which haulers are usually forced to pay elevated tip fees. The monopolies hurt haulers and the owners of local disposal facilities.

NSWMA frequently testifies before municipal or county councils against flow control (and on other issues as well). Sometimes, the local governments ignore our testimony and pass flow control laws. When that happens, the lawyers often get involved.

NSWMA has played a critical role in shaping the law on flow control, including helping to persuade the U.S. Supreme Court to strike down Clarkstown, N.Y.'s flow control law in the Carbone case. In the years since the Carbone decision, NSWMA has frequently challenged flow control laws or has filed amicus briefs in support of its members.

For example, NSWMA filed a lawsuit in 2003 challenging a Kentucky county's flow control law. NSWMA was able to convince a federal district court judge to rule that the law violated the Commerce Clause of the U.S. Constitution. Earlier this year, an appeals court upheld the decision (NSWMA v. Daviess County).

At the same time, a similar flow control case in upstate New York has been working its way through the federal courts with an entirely different outcome. The federal courts in New York have created a new exception to the Carbone decision for government-owned disposal facilities (United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority).

Under this exception, flow control laws that designate such facilities are reviewed under a lenient “balancing test” instead of the more stringent analysis applied in the Daviess County decision and other flow control cases.

With the two decisions, there is now a split between two federal appeals courts on the important question of what standard of review is applied to certain flow control laws.

The plaintiffs in the United Haulers case have asked the U.S. Supreme Court to review the lower court decision. NSWMA will file an amicus brief later this month in support of that request.

The high court is expected to decide in early October if it will hear the case. The Supreme Court only hears a small percentage of the cases it receives, but this type of situation often gets its attention. If the court hears the case, a decision is likely by mid-2007.

In the meantime, local governments continue to pass flow control laws. A Georgia county and municipality recently passed such a law, and one of NSWMA's smaller members filed a lawsuit arguing the law violates the Commerce Clause. NSWMA has filed a brief in that case.

Flow control is one of the most powerful weapons in the government's arsenal. NSWMA is there to help haulers protect themselves against flow control and the elevated tipping fees associated with it.

For more information about NSWMA's position on flow control, go to www.nswma.org or contact David Biderman, NSWMA General Counsel, at (202) 364-3743 or [email protected].