The impact of the U.S. Supreme Court's May 1 decision to allow a New York county's flow-control ordinance is twofold. It:
- Corrects the misperception that an earlier Supreme Court decision prohibits local governments from adopting flow-control ordinances.
- Legitimizes the notion that government-owned landfills can charge private waste haulers above-average tipping fees to fund solid waste services, such as recycling, beyond collection and disposal.
Flow-control ordinances allow governments to require private waste contractors to deliver the curbside garbage they pick up to a specific disposal facility. Ordinances began cropping up more than a century ago, after California Reduction Co. v. Sanitary Reduction Works. In that ruling, the court said collection and disposal are core responsibilities of local governments. Over the next 100 years, 35 states passed laws directly permitting local governments to enact ordinances; another four allow them indirectly.
In addition to helping governments make sure they're meeting recycling and hazardous waste disposal requirements, the ordinances provide a steady stream of revenue to public landfill owners in the form of tipping fees.
Such ordinances have been a source of confusion—and contention. The Supreme Court's 1994 decision in C & A Carbone Inc. v. Clarkstown said a county could not force a private waste hauler to dump garbage at a private site. Many local governments misinterpreted that decision to mean they couldn't direct waste to publicly owned sites, either.
But its recent 6–3 decision in United Haulers Association Inc. v. Oneida-Herkimer Solid Waste Management Authority, the court found that Oneida and Herkimer Counties in New York were within their rights to force the haulers to bring the garbage to the county-owned and -operated facility. The court went out of its way to distinguish the county facility in this case from the private facility in Carbone. United Haulers Association had sued the counties, claiming their flow-control ordinance violated the Commerce Clause of the U.S. Constitution because it forced haulers to pay higher tipping fees than they'd have to if they chose a landfill. Many of these companies would rather use out-of-state landfills, where tipping fees generally are lower.
Barry Shanoff, outside legal counsel for the Solid Waste Association of North America (SWANA), believes flow-control ordinances that force private haulers to use a publicly owned, publicly operated facility are generally unassailable.
“But questions will come up, for example, when the facility is publicly owned and privately operated,” he says. “As a result of this decision, we're going to see all sorts of flow-control scenarios unfold.”
John Skinner, SWANA's executive director and CEO, agrees, but there's also the question of whether requiring haulers to dump at a privately run, publicly owned facility is legal. Skinner believes it is, provided the hauling company is chosen through public bidding open to both in- and out-of-state applicants.
The National Solid Wastes Management Authority (NSWMA), which represents private haulers, filed a “friend of the court” brief in support of United Haulers.
“In those locations where cities and counties decide to engage in flow control in response to the court's decision, residents and businesses should prepare themselves for dramatic price increases,” says NSWMA general counsel David Biderman. “Flow control creates a local waste monopoly insulated from free-market competition.”
—Steve Barlas has served as a Washington, D.C.-based freelance writer for trade and professional magazines since 1981. In that time, he has covered nearly every federal regulatory agency, cabinet department, and congressional committee, with a special emphasis on the U.S. EPA.