Legal Lode: Displace But Don't Dis

Even with authority under the state constitution to legislate regarding "any and all [municipal] services and functions," a county cannot ignore state law by initiating waste collection without first accommodating affected haulers, according to a Missouri appeals court.

In 2006, St. Louis County, a charter county under the Missouri Constitution, amended its code to enable local officials to establish solid waste collection districts and begin collection programs. As the county envisioned it, the programs would be publicly managed and privately operated. At the time, private hauling firms were providing collection services throughout the county.

Soon afterwards, county officials began inviting bids from haulers for each of the newly created districts, and by early 2008, the county was awarding collection contracts, which were supposed to take effect last October.

After the code change but before the county awarded any contracts, the Missouri legislature changed the state law. Until then, a city that wanted to begin solid waste collection in an area was obliged to provide only a written notice to the haulers who were serving the affected locale. Thanks to the amendment, as of Jan. 1, 2008, "any city or political subdivision," after providing such notice, has to wait two years before it can operate or manage waste collection services, unless it sets aside the work for private haulers already serving the area under a two-year, no-bid arrangement. When the two-year term ends, the city either may provide waste collection with its own workforce or contract with any private entity for the service.

A group of private haulers filed suit against the county to invalidate the county's program and compel the county to abide by the amended state law. The trial court dismissed the lawsuit after ruling that a charter county with home rule may exercise its legislative powers under the state constitution even if its action conflicts with a statute.

On appeal, the lower court judgment was overturned. "Charter counties possess wide authority under [the state constitution] to regulate municipal functions as they see fit — even in contravention of state statutes concerning the same powers," the appeals court observed. However, when a state statute involves "public policy of the state as a whole," then even a charter county is bound by it, the court added.

"[P]roviding an entity engaged in waste collecting with sufficient notice to make necessary business adjustments prior to having its services terminated in a given area" simply "mitigat[es] the effects of a government's takeover of trash collection," the opinion stated.

Conceding that the county may enter the trash collection business and even displace private haulers, the appeals court nevertheless invalidated the county's code amendment, which purported to eliminate the notice requirement and waiting period, thereby attempting to change state policy.

"A charter county's exercise of power that produces this result is impermissible," the court concluded. "The [c]ounty here can both take over trash collection as it wishes while at the same time remaining in harmony with the public policy of the state."

[State ex rel. American Eagle Industries v. St. Louis County, No. ED91677, Mo.App.E.D., Oct. 21, 2008]

Barry Shanoff is a Rockville, Md., attorney and 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].