Slam Dunk

TO PARAPHRASE ABRAHAM LINCOLN, “Most folks are about as confident as they make up their minds to be.” Ah, the power of positive thinking! Officials in Daviess County, Ky., very much hoped and believed that a federal district judge would uphold their waste flow control ordinance.

Never mind that it meant persuading him to disregard a key U.S. Supreme Court decision, as well as rulings from the federal appeals court covering his district, and instead embrace an unconventional line of reasoning from a New York court.

“[We are] obliged under state law to attempt to reduce solid waste and increase recycling,” an assistant county attorney told a reporter. Otherwise, he continued, “it would be difficult to reach our goals.”

The county decided to tackle the job through regulation. It adopted an ordinance with several innocuous provisions. First, the county would provide “universal” municipal solid waste collection within its borders through non-exclusive franchises. Second, all haulers who registered with the county and complied with other applicable laws and regulations were entitled to a franchise.

Third, no hauler could collect solid waste within the county limits without a franchise. But then came the rub: Franchisees were obliged to dispose of locally generated waste at the county's landfill or transfer station.

The Kentucky affiliate of Ft. Lauderdale, Fla.-based Republic Services is a registered solid waste hauler that owns a landfill located elsewhere in the state. The flow control provisions of the ordinance obviously would prevent the company from using its own landfill. For good measure, the company claimed that it someday might want to dispose of waste outside the state.

Republic, represented by its trade group, the Washington-based National Solid Wastes Management Association, filed suit in federal district court against the county, alleging that the ordinance discriminated against the interstate market for solid waste disposal services by favoring county disposal facilities over private facilities.

The county attempted to justify its ordinance by encouraging the district judge to adopt the reasoning of a New York federal appeals court decision upholding a waste authority plan that required waste and recyclables to be processed at publicly owned facilities.

The district judge refused. “[This] court does not agree that the [U.S. Supreme Court's 1994] Carbone decision turned on whether the facility was public or private,” he said.

He noted that the federal appeals court covering Kentucky and three other states “has not directly addressed the public/private distinction,” but has twice relied on Carbone to invalidate flow control ordinances that would have required processing at public facilities.

Finally, the judge rejected the county's contention that it was engaging in “market participation” and not market regulation. “Daviess County is not buying disposal services, it is … [using] its regulatory power to force those … in the collection market to buy disposal services from it rather than from someone across the state line,” the court said.

Undaunted by the pesky precedents, the county is appealing the decision.

[National Solid Wastes Management Association v. Daviess County, No. 4:04-CV-31M, W.D.Ky., Nov. 19, 2004.]

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.