Flow Control Case Could Shape Local Waste Disposal Regulation

January 16, 2007
Client Alert Newsletter Forecast 2007

On January 8, the U.S. Supreme Court heard arguments in United Haulers Association v. Oneida-Herkimer Waste Management Authority, an appeal of a Second Circuit decision upholding two New York county ordinances requiring delivery of local solid waste to publicly owned processing facilities. Petitioner, a national waste hauler trade group, argues that the "flow-control" ordinances unconstitutionally discriminate against interstate commerce by forcing haulers to use public facilities charging higher fees than private ones. Petitioner analogizes to a 1994 Supreme Court decision, C&A Carbone, Inc. v. Clarkstown. In Carbone, the Court relied on the so-called "dormant aspect of the commerce clause," which prohibits state and local governments from enacting protectionist laws that unduly burden interstate commerce, to invalidate an ordinance requiring haulers to take local solid waste to a designated private facility. Petitioner in United Haulers contends that the ordinances at issue are similarly protectionist and discriminatory and should be barred. Respondents argue that the ordinances do not discriminate, and distinguish Carbone because it related to a private facility. Municipalities and waste haulers will carefully watch the outcome of this case, which may be known by summer.