Amicus Brief — Community Communications Co. v. Boulder

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No. 80-1350 JUN

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In The

SUPREME COURT OF THE UNITED STATES

October Term, 1980

COMMUNITY COMMUNICATIONS COMPANY, INC.,

Petitioner,

vs.

CITY OF BOULDER, COLORADO,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

AMICI CURIAE. BRIEF FOR THE CITY OF

AKRON, OHIO AND THE OHIO WATER

DEVELOPMENT AUTHORITY

SQUIRE, SANDERS & DEMPSEY ROBERT D. PRITT

JOHN D. CUMMINS Director of Law

GLENN M. YOUNG City of Akron

Counsel of Record 304 Municipal Building

21 Dupont Circle, N.W. Akron, Ohio 44308

Washington, D.C. 20036 (216) 375-2030

(202) 862-7000

Attorney for the

EBEN G. CRAWFORD City of Akron

WILLIAM H. BAUGHMAN

1800 Union Commerce Building

Cleveland, Ohio 44115

(216) 696-9200

Attorneys for the Ohio Water

Development Authority

TABLE OF CONTENTS

Page

Table Of ContentS ..scccccccccccceseee i

Table of Authorities ...secsescecseees i

INTEREST OF AMICI CURIAE .cccsceseseee 1

SUMMARY OF ARGUMENT ...cecececesccsses 6

ARGUMENT coccccccccccccccccccccccccces

CONCLUSION .ccccccccccccccccccccccccce Ol

TABLE OF AUTHORITIES

Cases

Brandel v. oa Cee sE dy

Ind. ’ N.E. 778,

781 (1967) cccccccccccccccccccsccccssee 19

Burns v. City of Enid,

Okla. ’ P.1038,

1039 (1923) ceccccccccccccccccccccccse 19

California Reduction Co. v.

Sanitary Reduction Works,

f 9 U.S. ’ 19- ( 05) eeeeeeeees 16

Canton v. Van Voorhis, 61 Ohio

App. 419, 421-22, 22 N.E.2d 651,

652, a al dismissed for want

of debatable question, 135 Ohio

Bes ies 20 Webo de 120 61939) cecoccee 17

City of Lafayette v. Louisiana

Power & Light Co., 435 U.S. 389

T1978

) es@e@eeeoeeeoeeee eee eeeeeeeeaeeeeee 17

aoj-

Page

District of Columbia v. Brooke,

214 U.S. 138, 148 (1909) e*eeeensee#neeseeeeee 19

Dover Township v. Witt, 7 N.J. Super.

f A. 4, (1950) eeeeeeeene 18

Gardner v. Michigan, 199 U.S. 325,

_ ( ) eeeeseeseeeeeeeeeeneaeeeeaeee eee 16

Glenwillow Landfill, Inc. v. Cit

of Akron, 465 F. Supp. 671 (N.D.

Ohio 1979), a al docketed sub

nom. Hybud Eauipnent Corp. v. City

of Akron, No. ~ 1 ( th re

Jan. 14, 1980) eeeseeaeaevoeaeeeeeeeeeeeneeaee 16

Grand Rapids v. DeVries, 123 Mich.

570, 82 N.W. 269, 273-74 (1900) ...... 19

Hodge v. Stout, 377 F.Supp.

131, 135 (B.D. Tenn. 1974) cccoccccccee 19

Hutchison v. Valdosta, 227 U.S.

303 (1912) eeeeseeeeeeeeeeeeeeeeeeeaeeeeee 19

Indianapolis v. Ryan, 212 Ind.

447, 7 N.E.2d 974, 976 (1937) weseeeee 19

Marangi Brothers v. Board of

Commissioners, 33 N.J. Super.

294, 110 A.2d 131, 138-39 (1954) eeee 19

O'Neal v. Harrison, 96 Kan. 339,

P. ( eeeeeeee eee eeeeeaeeeeee 19

Parker v. Brown, 317 U.S. 341

eeeeeeeeeeeeneneeeeeeeneeeeeeeeeeeee 4, 17

People v. A & C Trucking Co.,

88 Misc. 2d 988, 390 N.Y.S.2d

987, 992-94 (1977) eeeeeeeeeve eee eee eee 19

-ii-

Page

People v. Butcher, 28 Misc.2d

24, 209 N.Y¥.S.2d 723, 728 (1960) ..... 19

Sikeston v. Sisson, 363 Mo. 104,

249 S.W.2d 345, 346-47 (1952) eeeeeveee 19

Silver v. Los Angeles, 217 Cal.

App.2d 134, 31 Cal.Rptr. 545,

549-50 (1963) e@eeeeveveveeeeeeeeeeeeeeeee 18

Spokane v. Carlson, 73 Wash.

2d 76, 436 P.2d 454, 456 (1968) ...... 19

State v. Orr, 68 Conn. 101,

35 A.770, 771 (1896) eeeeoeeaeeeeeaeeeaeeneenee? 19

State v. Robb, 100 Me. 180,

60 A.874, 877 (1905) e@eeeeoeeeaeaevee eee eaeee 19

State, ex rel. Moock v. Cincinnati,

120 Ohio St. 500, 508-09, 166 N.E.

583, 585-86, cert. denied, 280

U.S. 578 (1929) eeeeseeeeeeeeeeeeeeeaeenenee 16

Strub v. Deerfield, 19 1I111.2d

401, 167 N.E.2d 178, 180 (1960) ...... 18

‘United Sanitation Services, Inc.

v. Tampa, 302 S0.2d 435, 436

(PFla.Ct.App. 1974) eeeeseeoeeeeeeeeeeeenenene 18

Valley Spring Hog Ranch Co.

v. Plagman, 282 Mo. 1, 220 S.W.1,

-5 (1920) eeoeeeeeeeeeeeeeeeeeeteeeeee 18

Wheeler v. City of Boston,

233 Mass. 395-133 HE. 123 N.E. 684,

686 (1919) eeeeeeaeeaeeeeeeeeeeeeaeeeeeen ee 18

~iii-

Constitutional Provisions,

Statutes and Ordinances

Ohio Const. Art. IVII, Sec. 3

(Page's 1979) @eeeeoseeeeaeeeeeweeeeaeeneaneeneeneneee

Toxic Substances Control Act,

15 GeSeCeo §2601, et seq. e*eeeeeeneeeees

Clean Water Act, 33 U.S.C.

§1251 et seq. eeeeeeeeveeeeeeeneneeeneeneeee

Safe Drinking Water Act, 42

GeSeGe § 300F et seq. eeeeeeeeneeeeneeeneee

Resource Conservation and

Recovery Act, 42 U.S.C. §6901,

et seq. eeeeoeeeeeeeeeeeeeeeeeeeenneeeneee

Clean Air Act, 42 U.S.C. §7401,

et seq. eeeeeeaeoeeeeeeaeeeeeeeeeeeee ee ee

Ohio Rev. Code Ann. §§6121.03 and

6123.03 (Page's 1977) @eeeeoeeeeeeeseeeeees

-iv-

Page

No. 80-1350

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1980

COMMUNITY COMMUNICATIONS COMPANY, INC.,

Petitioner,

vs.

CITY OF BOULDER, COLORADO,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

AMICI CURIARE BRIEF FOR THE CITY OF

AKRON, OHIO AND THE OHIO WATER DEVELOPMENT

AUTHORITY

INTEREST OF AMICI CURIAE

The City of Akron, a home-rule

municipality in Ohio, and the Ohio Water

Development Authority (OWDA), a state agency

~

created inter alia to assist in financing

solid-waste disposal systems, join in this

brief as amici curiae in support of Respon-

dent. These amici also adopt the brief

filed herein by Respondent.

In addition to their general interest

in conducting their governmental affairs

free of fear that their actions may be

challenged as antitrust violations, these

amici are also interested in this case

because they are presently subjected to

antitrust litigation arising from their

allegedly illegal, inter-government agree-

ment. That agreement was part of a

financing relationship between Akron and

OWDA for the purpose of constructing a new

resource recovery solid-waste disposal

system built in Akron and financed through

the OWDA. Specifically, Akron agreed with

OWDA that it would adopt an ordinance

requiring that all solid waste collected

-3-

within the city limits be taken to the new

facility. OWDA insisted upon adoption of

this ordinance to insure that all of Akron's

solid waste would be disposed of in an

environmentally sound manner and to insure

adequate utilization of the facility to

serve the revenue bonds OWDA issued to

finance the project. After the ordinance

was adopted, certain landfill operators and

solid waste haulers sued Akron and OWDA

asserting, inter alia, that the ordinance

imposed an anticompetitive restraint upon

the business of collecting and disposing of

solid waste and constituted an attempt to

monopolize that business, all in violation

of Sections 1 and 2 of the Sherman Act.

After trial on the merits, the District

Court rejected plaintiffs' antitrust claims

on the ground, inter alia, that the people

of Ohio, through the home rule provisions of

the Ohio Constitution, had allocated the

-4-

power to regulate the collection and

disposal of solid waste within a city's

corporate limits to the city's council, not

the state legislature; that accordingly the

Akron council, in adopting the ordinance,

stood in the same position and exercised the

same sovereign power as the state legisla-

ture exercises in those areas to which the

people of Ohio have allocated it power to

legislate; and that therefore, the ordinance

was immune from antitrust attack under

Parker v. Brown, 317 U.S. 341 (1943);

Glenwillow Landfill, Inc. v. City of Akron,

385 F.Supp. 671 (N.D. Ohio 1979). The case

has been appealed and was argued to the

Sixth Circuit Court of Appeals in October,

1980, sub nom. Hybud Equipment Corp. v.

City of Akron, No. 80-3121 (6th Cir. Jan.

14, 1980). No decision has yet been

rendered, presumably due to the pendency of

the instant appeal before this Court.

-5-

Although the issues before the Sixth

Circuit are not identical to those presented

here, these amici find themselves in much

the same position as the City of Boulder -

having to defend an antitrust lawsuit

attacking a governmental action well within

the scope of the home-rule power granted a

municipality by the people.

The ability of local government toa

solve the problems of urban communities is

already strained because of the limited

sources of funds available to meet the

increasing demands for government services

in our society. To apply the Sherman and

Clayton Acts to exercises of home-rule power

by municipalities - and thus create another

obstacle to local government's attempts to

fulfill the needs of an urban citizenry -

would be exceedingly unwise.

It is this interest in maintaining

their ability to address present-day urban

-6§-

problems, expecially in the area of

providing solid-waste removal systems, that

prompts these amici to file this brief and

to join in respondent's brief.

SUMMARY OF ARGUMENT

Applying federal antitrust statutes to

governmental actions by local governments

under their home-rule power will unduly

interfere with the accomplishment of

important social goals, e.g., environmental

goals, as is illustrated by these amici's

own situation.

ARGUMENT

These amici support the arguments

contained in respondent's brief. For those

reasons, the federal antitrust statutes

should be read as not reaching actions taken

by local governments under sovereign,

home-rule power vested in them by the

people. In addition, these amici will offer

as an example a description of one area of

-7-

local government where the risk of antitrust

litigation would impede efforts to accom-

plish vital societal goals. That area is

the traditional one of collecting and

disposing of garbage, trash and other

refuse.

In the past decade, Congress has

enacted numerous laws designed to improve

the nation's environment.1/ Most of these

statutes apply with equal, if not greater,

force to municipalities as to industry. For

instance, Congress has decided to utilize

existing municipal sewage treatment plants

as a primary tool in clensing the waters of

the United States of industrial as well as

residential waste.2/ These more strict

1/ Clean Air Act, 42 U.S.C. § 7401 et seq.; Clean

Water Act, 33 U.S.C § 1251 et seq.; Resource

Conservation and Recovery Act, 42 U.S.C.

§ 6901 et seq.; Toxic Substances Control Act,

15 U.S.C. § 2601 et seq.; Safe Drinking Water

Act, 42 U.S.C. § 300F et seq.

2/ See 33 U.S.C. $§1251(2)(4), 1281(c) and (e)

and 1317 (b) and (c).

-8-

environmental requirements have greatly

increased the traditional burden on the

nation's local governments to provide waste

removal systems. Merely hauling trash to

any open landfill to be burned or buried is

no longer enough.3/ A more environmentally

acceptable method of disposal is necessary.

Akron, like cities throughout Ohio and

the nation, faces the challenge of disposing

of waste in accordance with these new

environmental regulations. In meeting the

challenge, Akron, as a charter municipality,

can use its home-rule power under the Ohio

Constitution. Home-rule is granted to

municipalities in Ohio by the following

constitutional provision:

"Municipalities shall have authority to

exercise all powers of self-government

and to adopt and enforce within their

limits, such local police, sanitary and

3/ See Resource Conservation and Recovery Act, 42

U.S.C. § 6945(c): ". . . open dumping of

solid wastes or hazardous waste is prohibited

"

-9-

other other similar regulations as are

not in conflict with the general

laws."4/ |

Akron may also call upon the OWDA for

assistance in financing capital improvements

to dispose of waste without degrading the

environment. The OWDA's very existence is a

response tc the financial needs in meeting

these new environmental requirements through

the construction of new disposal or treat-

ment systems.5/

A discussion of Akron's solid-waste

program will illustrate the need for what in

the private sector might be circumscribed by

the antitrust laws. The intergovernmental

cooperation between OWDA and Akron, which is

allegedly a combination in restraint of

trade, is only one example of the relation-

ships and restrictions that are needed,

4/ Ohio Const. Art. IVIII, Sec. 3 (Page's 1979).

5/ Ohio Rev. Code Ann. §§ 6121.03 and 6123.03

(Page's 1977).

-10-

especially in the environmental area, to

deal economically, safely and effectively

with the many present day problems that

beset local government.

In the early 1970's Akron's officials

foresaw an impending solid waste disposal

crisis principally triggered by (a) Ohio's

new stringent solid waste disposal regula-

tions which placed substantial constraints

on the future location and operation of

waste disposal sites, and (b) the fast

diminishing capacity of existing landfill

sites in the Akron area.

In response, Akron undertook extensive

studies of alternative, long-range solutions

including sanitary landfill, incineration,

composting, rail haul to abandoned strip

mines, size and volume reduction mehtods

(shredding, crushing, etc.), and resource

recovery techniques. Akron concluded that a

recycle energy system (RES), designed with

-11—-

the latest technology to incinerate solid

waste to produce marketable steam or elec-

tricity, was the best long-rang® solution to

the solid waste disposal problem for a

number of reasons, including the facts

that:

1. An RES could be centrally located

within the corporate limits, thereby

obviating costly hauling and assuring

that Akron retained control over the

facility;

2. The ash residue produced by the RES

could be used for fill or safely land-

filled requiring the utilization of far

less land than ordinary landfilling.

3. Incineration would markedly reduce

the pollution and nuisances associated

with landfills and, to the extent it

replaced coal fire burners, would

actually reduce air pollution.

4. The costs of operation could be

offset by the sale of steam or

electricity and recyclable materials as

well as the collection of a disposal

charge.

A significant factor in Akron's decision was

the fact that its only landfill generated

continuing problems, controversy and

litigation. Indeed, in order to settle

@12@

pending litigation, Akron had been forced to

agree to cease operating its landfill no

later than December 1977,

During the first half of 1975, Akron

attempted to finance the proposed RES on its

own through the sale of revenue bonds, but

by mid-1975, it became apparent that Akron's

RES revenue bonds would not be marketable

due to the novelty of RES technology and the

ill effects of the New York City financial

crisis on the capital markets. Consequently,

Akron asked the OWDA to finance the

project.

OWDA is mandated by law to implement

"the public policy of the State ... to

provide... efficient and proper methods

of disposal, salvage and reuse of or

recovery of resources from solid waste

» « «"6/ To effect its mandate, the Ohio

6/ Ohio Rev. Code Ann. § 6123.03 (Page's 1977).

-13-

General Assembly has vested OWDA with power

to finance solid waste projects by issuing

revenue bonds, and in conjunction with such

projects and their financing, to enter into

cooperative agreements with other govern-

mental agencies containing such terms as are

necessary to safeguard ". . . the respective

interests of the parties thereto

pe

After concluding that Akron's proposed

RES would further the state policy OWDA has

been mandated to implement, OWDA agreed to

finance the project and in July 1976, the

investment banking firm of Dillon, Reed &

Co. agreed to head an underwriting team to

purchase and resell the OWDA's RES bonds.

OWDA and its underwriters concluded that in

order to market the revenue bonds, it would

be necessary to assure the bondholders that

7/ Ohio Rev. Code Ann. § 6123.13 (Page's 1977).

-14-

the RES project would receive an adequate

supply of waste in order to provide adequate

revenues to repay the bonds; and that to do

so, it would be necessary for Akron to

exercise its home-rule power to require that

all solid waste generated within its limits

be taken to the RES facility for disposal.

The OWDA also wanted all of Akron's solid

waste to be processed through the RES plant,

rather than deposited in some landfill, to

further its interest in cleaning up the

environment.

In October 1976, Akron's City Council

authorized a cooperative agreement with

OWDA. Section 5.5 I of this agreement

provides, among other things, that Akron

covenants with OWDA as follows:

wt For the term of this

Agreement, [Akron] shall require that

all collectors and haulers of Solid

Waste within [Akron] be licensed by

[Akron] and all such licenses shall

provide that all collectors or haulers

of Solid Waste shall dispose of all

Solid Waste generated within the

-15-

corporate limits of [Akron] which is

acceptable for disposal by the Project

to be deliverd to the Project for

disposal through the Project...

[Akron] will take all available action,

administrative, judicial and legisla-

tive, to cause all Solid Waste genera-

ted within the corporate limits of

[Akron] .. . to be delivered to the

Project for disposal through the

Project."

To fulfill its obligations under this

covenant, Akron enacted Ordinance

No. 846-1976 which provides, in pertinent

part:

"From and after the date on which [the

RES] plant begins accepting rubbish for

disposal, all rubbish collected within

the corporate limits of the City by the

holder of a rubbish haulers license

shall be deposited at such plant;

nm

The ordinance does not apply to

source-segregated recyclable materials -

i.e@., waste paper, cardboard, metals, etc. -

segregated for recyclizg or other use by the

preson generating the waste. It only

applies to mixed solid waste put out by the

generator thereof for disposal.

-16-

This ordinance has been challenged on

antitrust grounds, among others. Glenwillow

Landfill, Inc. v. City of Akron, 485 F.

Supp. 671 (N.D. Ohio 1979), appeal docketed

sub nom. . Hybud Equipment Corp. v. City of

Akron, No. 80-3121 (6th Cir. Jan. 14, 1980).

This antitrust attack on the actions of

Akron and OWDA was made in spite of federal

and Ohio precedents establishing that ordi-

nances monopolizing or otherwise controlling

the collection and/or disposal of solid

waste within municipalities are proper

police power measures that do not violate

the Fourteenth Amendment. E.g., California

Reduction Co. v. Sanitary Reduction Works,

199 U.S. 306, 319-22 (1905); Gardner v.

Michigan, 199 U.S. 325, 332-33 (1905);

State, ex rel. Moock v. Cincinnati, 120 Ohio

St. 500, 508-09, 166 N.E. 583, 585-86,

cert. denied, 280 U.S. 578 (1929); Canton

v. Van Voorhis, 61 Ohio App. 419, 421-22, 22

@17@

N.E.2d 651, 652, appeal dismissed for want

of debatable question, 135 Ohio St. 319, 20

N.E.2d 720 (1939). Moreover, Ohio courts

have unequivocally declared that ordinances

directing the flow of solid waste to a

single hauler or disposal site are proper

exercises of the sovereignty granted to

municipalities by the home-rule provision of

the Ohio Constitution. Moock v. Cincinnati,

supra; Canton v. Van Voorhis, Supra.

Although the sovereign, home-rule acts

of Akron should not have been the subject of

antitrust claims, Parker v. Brown, 317 U.S.

341 (1943), such litigation was commenced

under the decision in City of Lafayette v.

Louisiana Power & Light Co., 435 U.S. 389

(1978).

These amici do not occupy a unique

position. Local governments across the

country for many decades have, under local

police power, limited the collection or

-18-

disposal of rubbish. See, e.g., Silver

v. Los Angeles, 217 Cal.App.2d 134, 31

68 Conn. 101, 35 A.770, 771 (1896); United

Sanitation Services, Inc. v. Tampa, 302

So.2d 435, 436 (Fla.Ct.App. 1974); Strub

v. Deerfield, 19 I11.2d 401, 167 N.E.2d 178,

180 (1960); Indianapolis v. Ryan, 212 Ind.

447, 7 N.E.2d 974, 976 (1937); O'Neal v.

Harrison, 96 Kan. 339, 150 P.551 (1915);

State v. Robb, 100 Me. 180, 60 A.874, 877

(1905); In re Vandine, 23 Mass. (6 Pick)

187, 17 Am. Dec. 351 (1827); Wheeler v. City

of Boston, 233 Mass. 275, 123 N.E. 684, 686

(1919); Grand Rapids v. DeVries, 123 Mich.

570, 82 N.W. 269, 273-74 (1900); Valley

Spring Hog Ranch Co. v. Plagman, 282 Mo. 1,

220 S.W.1, 4-5 (1920); Dover Township v.

Witt, 7 N.J. Super. 259, 72 A.2d 884, 885

(1950); Marangi Brothers v. Board of

Commissioners, 33 N.J. Super. 294, 110 A.2d

-19-

131, 138-39 (1954); People v. A & C Trucking

Co., 88 Misc. 2d 988, 390 N.Y.S.2d 987,

992-94 (1977); Burns v. City of Enid, 92

Okla. 67, 217 P.1038, 1039 (1923); Spokane

v. Carlson, 73 Wash. 2d 76, 436 P.2d 454,

456 (1968).

Similarly, municipalities have tradi-

tionally enacted mandatory sewer connection

ordinances. See, e.g., Hutchison v.

Valdosta, 227 U.S. 303 (1912); District of

wesSVsts

Columbia v. Brooke, 214 U.S. 138, 148

(1909); Hodge v. Stout, 377 F.Supp. 131, 135

(E.D. Tenn. 1974); People v. Butcher, 28

Misc.2d 24, 209 N.Y.S.2d 723, 728 (1960);

Brandel v. Lawrenceburg, 249 Ind. 47, 230

N.E.2d 778, 781 (1967); Sikeston v. Sisson,

363 Mo. 104, 249 S.W.2d 345, 346-47 (1952).

As the discussion above demonstrates,

Municipalities often take governmental

action, sometimes in cooperation with other

levels of government, which might give rise

-20-

to antitrust litigation. A clear pronounce-

ment that local governmental action under

home-rule provisions may not give rise to

antitrust liability is needed. Without such

a clear rule, local governments will be

deterred from many actions, rationally

designed to promote the public health,

safety and welfare, for fear of the enormous

costs of antitrust litigation. Requiring

cities to run the risk of antitrust suits

arising from their governmental actions is

an unnecessary additional cost for local

governments already at the breaking point.

Moreover, the delay which potential anti-

trust considerations would impose could

seriously jeopardize the health and safety

of local citizenry in the community facing a

need to solve a sewage or solid waste

disposal problem. The overall detrimental

affect on the health and safety of millions

of people throughout the nation cannot be

overstated.

=21=

CONCLUSION

These amici urge an affirmance for the

foregoing reasons. Local governmental

actions pursuant to home-rule power alloca-

ted to municipalities by the people of a

State should be no more subject to antitrust

challenge than actions pursuant to other

allocations of power to a state's legisla-

ture or judiciary.

Respectfully submitted,

SQUIRE, SANDERS ROBERT D. PRITT

& DEMPSEY Director of Law

JOHN D. CUMMINS City of Akron

GLENN M. YOUNG 304 Municipal

Counsel of Record Building

21 Dupont Circle, N.W. Akron, Ohio 44308

Washington, DC 20036 (216) 375-2030

(202) 862-7000

Attorney for the

EBEN G. CRAWFORD City of Akron

WILLIAM H. BAUGHMAN

1800 Union Commerce

Building

Cleveland, OH 44115

(216) 696-9200

Attorneys for the Ohio Water

Development Authority