Sequel Opportunity

Ending a 12-year municipal solid waste drought, the U.S. Supreme Court announced in late September that it would hear an appeal by haulers in New York state who have doggedly pursued a decade-long struggle to overturn two counties' flow control ordinances.

The decision by the justices to accept the case for review is particularly notable considering that the high court rejected a similar appeal by the haulers in 2002, when the key facts and the parties' legal positions were essentially the same as they are now.

Ten years ago, waste haulers in New York state filed suit against Oneida and Herkimer counties and a waste authority. The counties' ordinances required all locally collected waste to be transported to designated facilities managed by the waste authority. The haulers claimed that the regulations discriminated against interstate commerce by excluding non-local facilities from the waste processing market.

Reversing a federal district court ruling in favor of the haulers, the U.S. Court of Appeals for the Second Circuit found no discrimination in the counties' laws because both local and non-local private entities were similarly affected. The appeals court remanded the case to the lower court for a determination of whether the burden on commerce outweighed any local benefits. [United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, 261 F.3d 245 (2d Cir. 2001).] To read more on this case, see “Carbone-anza?” Waste Age, Oct. 2001, p. 99.

The Supreme Court refused to review the appeals court's decision. [534 U.S. 1082 (2002).]

The parties returned to the district court where the case was presented to a federal magistrate based on a stipulated statement of facts. Each side then argued for a judgment in its favor. The magistrate found no burdens on interstate commerce and recommended that the district court dismiss the lawsuit. The district judge adopted the magistrate's findings and ruled in favor of the defendants.

On appeal, the Second Circuit declined to decide whether the ordinances actually burdened interstate commerce but declared that “even if we were to endorse the plaintiffs' claim that the [c]ounties' ordinances burden interstate commerce by preventing the [c]ounties' wastes from being processed by non-local facilities, the resulting burden would be substantially outweighed by the ordinances' local benefits.” [United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, 438 F.3d 150 (2d Cir. 2006).] For details, see “Flow Motion,” Waste Age, May 2005, p. 20.

The Supreme Court could soon decide to hear another flow control case. The case stems from Kentucky, where officials in Daviess County enacted an ordinance establishing a franchise system that required haulers to transport locally collected waste to a county-owned facility. A federal appeals court upheld a district judge's ruling that the ordinance discriminated against interstate commerce. [National Solid Wastes Management Association v. Daviess County, 434 F.3d 898 (6th Cir. 2006), petition for cert. filed (June 28, 2006), docketed, No. 06-359 (Sept. 13, 2006).]

“[P]ublic ownership does not change the … Commerce Clause inquiry,” the appeals court said. The key is “whether the local ordinance burdens interstate commerce, not whether the local entity benefited … is publicly owned.”

At press time the court had not yet decided if it would accept the case.

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

The columnist is a Rockville, Md., attorney and serves as general counsel of the Solid Waste Association of North America.