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Garbage, Garbage Everywhere . . .
The Effects of United Haulers Association Inc. v Oneida-Herkimer Solid Waste Management Authority on Local Government Solid Waste Management
Recently, the United States Supreme Court issued an opinion upholding a local government's ability to exercise flow control over solid waste. In the case of United Haulers Association Inc. v Oneida-Herkimer Solid Waste Management Authority, the court addressed the issue of whether a local government entity could enact flow control ordinances that required solid waste haulers to obtain permits and to deliver waste products to those sites operated and designated by local governments. Simply put, flow controls are legal provisions that allow state and local governments to designate where municipal solid waste must be taken for processing, treatment or disposal. Considering that approximately 80 percent of the landfills in the United States receiving municipal solid waste are owned by local governments, the case could have significant implications relative to the manner in which Tennessee's local governments henceforth negotiate with solid waste haulers as well as craft defensible, solid waste authority regional plans.
Petitioners, a trade association along with individual solid waste haulers, filed suit under 42 U.S.C. 1983,[4 ]alleging that the flow control ordinances enacted by the Oneida-Herkimer Solid Waste Management Authority (Authority) violated the Commerce Clause by discriminating against interstate commerce. Petitioners argued that without the Authority's ordinances and the associated tipping fees (fees charged to dispose of solid waste at landfills and waste transfer stations), they could dispose of solid waste at out-of-state facilities for far less than that which they had to pay to the Authority. The instant case came before the United States Supreme Court via writ of certiorari, based upon a ruling by the Second Circuit Court of Appeals that ruled in favor of the Authority.
The Respondent Authority countered Petitioner's assertions, arguing that the flow control regulations, via the state-created authority, were necessary due to the fact that many local government entities in the region traditionally disposed of their solid waste at landfills, many of which operated without permits and in violation of state regulations. Such activities, the Authority argued, presented significant environmental challenges for the region. Thus, the Authority enacted flow control ordinances requiring solid waste haulers to obtain permits to collect solid waste throughout the affected counties and to deliver the waste to the Authority's sites. The court, recognizing that waste disposal is typically and traditionally a function of local government exercising its police power, ruled in favor of the Authority.
The court's ruling is significant due in part to the fact that the Supreme Court previously ruled in C & A Carbone Inc. v. Clarkstown, and its progeny, that nearly all flow control laws were invalid (especially those that forced haulers to deliver waste to a privately owned facilities) because such laws discriminated against interstate commerce. In Carbone, the Town of Clarkstown, New York, agreed to allow a private contractor to construct within town limits, a solid waste transfer station to separate recyclable waste from nonrecyclable waste, with the understanding that the Town would ultimately assume ownership and control of same.
To finance the transfer station's cost, the town guaranteed a minimum waste flow to the facility, for which the contractor could charge the hauler a tipping fee that exceeded the disposal cost of unsorted solid waste on the private market. In order to meet the waste flow guarantee, the town adopted a flow control ordinance, requiring all non-hazardous solid waste within the town to be deposited at the transfer station. The Supreme Court ultimately ruled that an ordinance forcing haulers to deliver waste to a particular private facility discriminated against interstate commerce. It reasoned that a discriminating state or local regulation is virtually per se unconstitutional because of "the virtual certainty that such laws, at least in their discriminatory aspect serve no legitimate, non-protectionist purpose."
The Carbone court further found that the ordinance discriminated against interstate commerce because like many other local processing requirement ordinances, it deprives out-of-state service providers of local demand for their services.
The Dormant Commerce Clause
The cases that lead up to and including United Haulers focus on the United States Commerce Clause. To belabor the obvious, under the Commerce Clause, "Congress shall have Power ... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const., Art. I, § 8, cl. 3. The language of the Clause allows Congress not only to regulate interstate commerce but also to prevent state regulation of interstate commerce. Practically applied, the "Dormant Commerce Clause" limits the authority of state and local government to enact laws that affect interstate commerce. For instance, if the subject matter requires uniform national regulation, it is off limits to state and local regulation. Further, state and local laws and regulations can neither discriminate against nor unduly burden interstate commerce.
Finally, if discrimination is present, as evidenced, for instance, by those local laws motivated by simple economic protectionism, a per se rule of invalidity applies. It was this type of perceived discrimination that led the Supreme Court in Carbone to ultimately invalidate a local ordinance requiring all nonhazardous solid waste to be deposited at a specific local transfer facility. The court concluded that the ordinance discriminated against interstate commerce because it hoarded solid waste, and the demand to get rid of it, for the benefit of a preferred processing facility. Conversely, the court in United Haulers relied upon its previous ruling in Pike v. Bruce Church Inc., wherein the Pike test was born. Under the Pike test, an evenhanded government regulation "will be upheld unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits."
The Public/Private Dichotomy
Interestingly, it was the dissent in Carbone that more fully drew a distinction between public and private enterprises when viewed in context of the commerce clause. Justice Souter, writing for the minority, suggested that the ostensibly private transfer station was for all intents and purposes a municipal facility. He expressed his frustration over the majority's seeming propensity to ignore the distinction between public and private enterprise by asserting, "The local government itself occupies a very different market position, however, being the one entity that enters the market to serve the public interest of local citizens quite apart from private interest in private gain." He likewise asserted that the town's ordinance "bestows no benefit on a class of local private actors, but instead directly aids the government in satisfying a traditional governmental responsibility."
The Tennessee Perspective
The petitioners in United Haulers complained bitterly that the actions of the Respondent Authority resulted in unfair competition to the detriment of private haulers. It is interesting to note that the Tennessee legislature, by enacting the Solid Waste Authority Act of 1991, recognized the ability of Tennessee's public entities to control the flow of solid waste. This control is exercised via the creation of solid waste authorities. Such authorities are empowered to regulate the flow of all municipal solid waste within the county or counties constituting the authority. Further, authorities have the ability to require the disposal of any transported waste at a specific solid waste disposal facility as well as restrict access to its solid waste disposal facilities by excluding waste originating with persons or entities outside of the region. Still, Tennessee courts are reluctant to permit public entities to pass private acts that impose a tax on the "privilege" of disposing solid waste in county-owned landfills that are not a part of a solid waste authority. In the case of City of Tullahoma v. Bedford County, the city challenged a county- imposed tax designed to offset expenses realized by the county resulting from a landfill operation within the county. The expenses included, but were not limited to, road maintenance and repair, the employment of a qualified inspector or inspectors, vehicles, equipment and test services for the purpose of monitoring and inspecting solid waste disposal in the county. The court, ruling for the city and as such, striking down the tax, held that, while the imposition, collection, and use of fees by counties and municipalities incident to the control and disposition of solid waste is authorized by state law, the statute provides that only local governments and solid waste authorities may impose county fees. Because the county did not own the disposal facility nor was a host county to a regional solid waste disposal facility, the tax was contrary to state law.
Another interesting aspect of Tennessee's solid waste authorities is the power they wield. Although they may not exercise traditional police powers, they may, nevertheless, sue and be sued in the name of the authority, exercise the powers of eminent domain, sell electricity and other forms of power and energy, incur debt, borrow money and issue bonds, to name the most obvious.
United Haulers v. Oneida-Herkimer is an important case with respect to commerce clause jurisprudence, as well as the future relationships between, and vested interests of, local governments and private waste haulers when it comes to the collection, control and processing of solid waste. Where local governments continue to view solid waste as a revenue-generating enterprise compliments of tipping fees and flow control, private haulers likewise see its value and as such, have a keen interest in keeping earnings high by keeping tipping fees low. Further, private haulers generally prefer to have a choice as to where they haul their waste.
The Supreme Court may just have tipped the latter part of this equation in favor of Tennessee's local governments. Only time will tell.
1. United Haulers Association Inc., et al. v. Oneida-Herkimer Solid Waste Management Authority, et al., 127 S.Ct. 1786 (2007) on Writ of Certiorari, United Haulers Association Inc., et al. v. Oneida-Herkimer Solid Waste Management Authority, et al. 438 F.3d 150 (1996).
2. See U.S. Environmental Protection Agency, Recourse Conservation and Recovery Act, Subtitle D Study: Phase 1 Report, p. 4-7 (Odt. 1986) (Table 4-2).
3. §68-211-814 Tenn. Code Ann. mandates that regional solid waste authorities submit their plans to the Tennessee Department of Environment and Conservation for review and approval.
4. 42 U.S.C. §1983 provides in pertinent part that "every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."
5. United Haulers Association Inc., et al. v. Oneida-Herkimer Solid Waste Management Authority, et al., 127 S.Ct. 1786 at 1788.
6. Id. at 1792.
7. C & A Carbone Inc. v. Clarkstown, 511 U.S. 383 (1994).
8. Id. at 422.
9. Id. at 392.
10. United Haulers Association Inc., et al. v. Oneida-Herkimer Solid Waste Management Authority, et al., 127 S.Ct. 1786 at 1793.
11. C & A Carbone Inc. v. Clarkstown, 511 U.S. 383 at 421.
12. Pike v. Bruce Church Inc., 397 U.S. 137 (1970).
13. Id. at 142.
14. C & A Carbone Inc. v. Clarkstown, 511 U.S. 383at 421.
15. §68-211-901 Tenn. Code Ann. Create the Tennessee Solid Waste Authority Act of 1991.
16. Tullahoma v. Bedford County, 938 S.W.2d 408, (1997)
17. Id. at 411.
18. §68-211-814 Tenn. Code Ann.
JOSEPH G. JARRET is an attorney and Rule 31 listed civil mediator who is also licensed to practice law in Florida. He spent the last five years serving Polk County, Fla., as its county attorney prior to moving to Knox County, in December 2007. He is a former U.S. Army combat arms officer who has received numerous writing awards and who has published more than 85 articles in various legal and professional journals. He holds a bachelor of science in Criminal Justice from Troy State University (W. Germany Campus), a masters in public administration from Central Michigan University, a law degree from Stetson Law School, and a graduate certificate in public management from the University of South Florida.