SCOTUS to review Commerce Clause challenge to solid waste flow control ordinance

United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Management Authority, September 26, 2006: Solid Waste - Commerce Clause challenge to requiring delivery of all solid waste to publicly owned local facility--Certiorari Granted.

The United States Supreme Court has granted certiorari in a case in which the Second Circuit held that a municipal scheme requiring that garbage generated by local households and businesses be delivered to facilities that were owned and operated by a public corporation, thereby preventing the trash from being processed at non-local facilities, did not violate the Commerce Clause. The Court of Appeals noted that the non-discriminatory municipal flow control regulation at issue did not place non-local firms at a competitive disadvantage, regulate extraterritorially, or conflict with the regulatory requirements of any other jurisdiction.

The New York counties of Oneida and Herkimer enacted the challenged ordinances in 1990. The flow control regulations collectively required all solid wastes and recyclables generated within those adjoining counties to be delivered to one of several waste processing facilities owned by the Oneida- Herkimer Solid Waste Management Authority, a municipal corporation.

The Court of Appeals held that, even if the non-discriminatory provisions of the Counties' flow control ordinances burdened interstate commerce by preventing the Counties' waste from being processed by out-of-state facilities, any burden would be substantially outweighed by the ordinances' benefits, and thus the Commerce Clause was not violated. The ordinances regulated only one aspect of waste management within the Counties. The ordinances did not interfere with business competition, and they enabled the Counties to generate income and distribute costs. The ordinances substantially facilitated the Counties' goal of establishing a comprehensive waste management system that encouraged waste volume reduction, recycling, and reuse, and they ensured the Counties' interest in the proper disposal of hazardous waste.

The Court of Appeals further held that the ordinance provisions requiring all waste generated within the Counties to be delivered to publicly-owned facilities for processing did not discriminate against out-of-state interests in violation of the Commerce Clause. No private entity, whether in-state or out-of-state, was disadvantaged by the creation of the counties' processing monopoly.

The petition for certiorari, filed by an association representing the interests of solid waste management companies, stated that the Supreme Court held in C & A Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994), that a flow control ordinance requiring all solid waste to be processed at a designated transfer station before leaving a municipality was invalid under the Commerce Clause because it deprived competitors, including out-of-state firms, of access to a local market. The petition posed two questions. The first, which, according to the petition, was the subject of an acknowledged circuit conflict, was whether the virtually per se prohibition against hoarding solid waste recognized in Carbone was inapplicable when the preferred processing facility was owned by a public entity. The second was whether a flow-control ordinance that requires delivery of all solid waste to a publicly owned local facility and thus prohibits its exportation imposes so insubstantial a burden on interstate commerce that the provision satisfies the Commerce Clause if it serves even a minimal local benefit. (Case below: United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Management Authority, 438 F.3d 150 (C.A.2-N.Y. 2006).)