Flow Control Flunks

A FEDERAL JUDGE HAS RULED that a Daviess County, Ky., law mandating where trash collected in the county can be disposed of does not pass constitutional muster. U.S. District Judge Joseph H. McKinley Jr. struck down the ordinance because he concluded it violates the U.S. Constitution's dormant Commerce Clause by discriminating against the interstate flow of municipal solid waste. His ruling came in a lawsuit filed by the Washington, D.C.-based National Solid Wastes Management Association (NSWMA).

Daviess County passed the ordinance in early 2004, but clearly anticipating NSWMA's lawsuit, did so with the provision that it would not enforce the law until it had been approved by a federal court. The ordinance would have required trash collectors to register for non-exclusive franchises with the county and said that they must dispose of their waste at either the county-owned landfill or the county-owned transfer station. The county has said that the law creates low-cost disposal services that prevent public dumping problems.

“We are pleased by the judge's decision,” says David Biderman, general counsel for NSWMA. “It's consistent with other cases holding that these types of flow-control laws violate the Commerce Clause.” Bryan Reynolds, an Owensboro, Ky., attorney who helped represent the county, did not comment on the ruling, but did say the county would decide whether to appeal by mid-December.

The ruling should come as no surprise, says Barry Shanoff, general counsel for the Solid Waste Association of North America, Silver Spring, Md. “This is full-frontal flow control,” he says. The Sixth Circuit Court of Appeals, which covers Kentucky, is “highly unlikely to overturn the ruling,” Shanoff adds.

In its landmark 1994 Carbone decision, the U.S. Supreme Court struck down Clarkstown, N.Y.'s flow control law — which required all trash collected in the town to be brought to a certain transfer station — because it concluded the law discriminated against interstate commerce by excluding other waste processors, both in- and out-of-state, from the market. However, Daviess County argued that McKinley should validate its ordinance by following the reasoning of a 2001 decision by the Second Circuit Court of Appeals, which covers New York state, Connecticut and Vermont.

In that ruling, the Second Circuit Court of Appeals determined that a flow control law adopted by the Oneida-Herkimer (N.Y.) Solid Waste Management Authority does not discriminate against the flow of interstate waste because the designated disposal sites — unlike the one in the Carbone case — are publicly owned. Therefore, the law evenhandedly affects all in- and out-of-state private businesses, the appeals court reasoned. The appeals court sent the case back to the lower court to decide whether any incidental burdens placed on interstate commerce by the law outweigh the local benefits. A decision is pending.

McKinley wrote that he disagreed with the Second Circuit's assertion in the Oneida-Herkimer case that the “Carbone decision turned on whether the facility was public or private.” The case “focused instead on the effect of the flow control ordinance — that it hoarded solid waste, and the demand to get rid of it, for the benefit of the single local proprietor,” he wrote.

“[T]he Sixth Circuit has not directly addressed the public/private distinction,” McKinley added. “However, until it does so, the prudent course is to follow Carbone … to find that the ordinance discriminates against the flow of interstate waste.”

Biderman says McKinley's ruling and other lower court decisions around the country show “local governments outside of [the Second Circuit] that they shouldn't expect to rely on [the Oneida-Herkimer decision] as a justification for their flow-control laws.”

However, the decision will not have a huge impact on local governments, Shanoff asserts. “A lot of communities will look at the decision and say, ‘So what?’ Local governments, for the most part, are pursuing their local interests with means and methods that ultimately will survive legal challenges based on Commerce Clause theories,” he says.