Amicus Curiae Brief — United Haulers Ass'n v. Oneida-Herkimer

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No. 05-1345

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IN THE

Supreme Court of the Anited States

UNITED HAULERS ASSOCIATION. INC... TRANSFER SYSTEMS,

INc.. BLISS ENTERPRISES. INC... KEN WITTMAN SANITATION,

Brisro. TRASH REMOVAL. LEVITT’S COMMERCIAL CON-

PAINERS. INC.. and INGERSOLL PICKUP INC..

Petitioners.

ONEIDA-HERKIMER SOLID WASTE MANAGEMENT AUTHORITY.

COUNTY OF ONEIDA, and COUNTY OF HERKIMER.

Respondents.

On Writ of Certiorari to the

United States Court of Appeals _

for the Second Circuit

BRIEF OF AMICI CURIAE NATIONAL SOLID

WASTES MANAGEMENT ASSOCIATION,

AMERICAN TRUCKING ASSOCIATIONS, INC., AND

NATIONAL ASSOCIATION OF MANUFACTURERS

ROBERT DGGES DAVID BIDERMAN *

Deputy General Counsel General Counsel

National Solid Wastes

Management Association

American Trucking

Associations, Ine.

2200 Mill Road 430) Connecticut Avenue. NW.

Alexandria. Virginia 22314 Washington, D.C. 20008

(703) 838-1 700 (202) 364-3743

Counsel tor American Trucking Counsel for National Solid

Pyscciations. Ln Wastes Management

fwwoctation

* Counsel of Record

P | tddditional counsel listed on inside cover|

Wi SON-EPES PRINTING CO. INC 202) 789-0096 -— WASHINGTON D C 20001

JAN S. AMUNDSON

Senior Vice President &

General Counsel

QUENTIN RIEGEL

Vice Presidem, Litigation ee -

Deputy General Counsel

National Association of Manufacturers

1331 Pennsylvania Avenue, NW

Washington, DC 20004-1790

(202) 637-3000

Counsel for National Association

of Manufacturers

TABLE OF CONTENTS

Page

CAR Ge FF Cee Ci oct rcteccctticersssnncnensocesesegentene il

INTEREST OF THE AMICI CURIAE ....0....c..ccccceeeeseee l

SUMMARY OF ARGUMENT ..................cccceseeeseeeeseees

Se aitdcbiiecihindciiasicinninisinenenitcainauicaianirenigtionnied 9

I. THE SECOND CIRCUIT’S INTERPRETA-

TION OF CARBONE AND THE DORMANT

COMMERCE CLAUSE IS FUNDAMENT-

I INE vincirssititijitenpricnstiabininatunevigrie 9

Il. CREATING A PUBLIC OWNERSHIP

DISTINCTION COULD FUNDAMENT-

ALLY ALTER THE CURRENT EFFICIENT

AND ENVIRONMENTALLY PROTECTIVE

INTERSTATE DISPOSAL SYSTEM.............. 12

Ill. THE SECOND CIRCUIT’S EMPHASIS ON

FACILITY OWNERSHIP IS AT ODDS

WITH MODERN BUSINESS REAL!TIES

AND THIS COURT’S CURRENT COM-

MERCE CLAUSE JURISPRUDENCE............. 18

IV. WASTE DISPOSAL IS NOT SOLELY A

MUNICIPAL FUNCTION ...0.... eee ecsseeeeeeee 22

V. THE ASSERTED BENEFITS OF FLOW

CONTROL ARE ILLUSORY AND CAN BE

ACHIEVED BY ALTERNATIVE MEANS .... 23

COT hstsisiptiininencevisasoniicntepieclniminuiaiinneictetenrtiatde 26

(1)

TABLE OF AUTHORITIES

CASES Page

Am. Trucking Ass’ns vy. Scheiner, 483 U.S. 266

(EAT is scinsincssinstnsinetiedtstiiciactclebailddabeniniaidibieécniinesinandee 8, 19, 20

Atlantic Coast Demolition & Recycling, Inc. v.

Board of Chosen Freeholders, \\2 F.3d 652

SEND: UIT iciiiliaidaisllaSicnidedsepdiiRins actin: cloapsiiiingdesiabe 11

Atlantic Coast Demolition & Recycling, Inc. v.

Board of Chosen Freeholders, 48 F.3d 701

(1995), reh’g and reh'g en banc denied, 1995

U.S. App. LEXIS 6454 (3d Cir. Mar. 28,

Pe isiiicisteshitealaaiihiatlissiiibbicdicnpiaiieniintsiddicemaiatiien 6, 11

C&A Carbone v. Clarkstown, 511 U.S. 383

hii ciaiaciatc net bitaes-ciiislepilbaniosiiigisianissindulistbohehigton passim

Chemical Waste Megmt., Inc. v. Hunt, 504 U.S.

Pa cticticdidsderlelhinsbisasinahoosintepnintaiieipincetiagtinies 10

City of Paterson v. Passaic County Bd. of Chosen

Freeholders, 753 A.2d 661 (N.J. 2000)............. 6

Coastal Carting Ltd. v. Broward County, 75 F.

Supp. 2d 1350 (S.D. Fla. 1999)... eee 6

Complete Auto Transit, Inc. v. Brady, 430 U.S.

SI AIE UI cuidcniitithaataa ca ipilscclineshiahibieiiansidenngacneibanet 8,19

Condon v. Andino, Inc., 961 F. Supp. 323 (D.

a PPL icieceicicchicioednenccneitinnbiashRiesegiapblchenstdacptctiites 6

Connecticut Carting Co. v. Town of East Lyme,

946 F. Supp. 152 (D. Conn. 1996)................... 1]

Fort Gratiot Landfill v. Michigan Dept. of

Natural Resources, 504 U.S. 353 (1992)........... 9

H.P. Hood & Sons, Inc. v. Du Mond, 336 US.

a a a 9

Harvey & Harvey, Inc. v. County of Chester, 68

F.3d 788 (3d Cir. 1995), cert. denied, 516 U.S.

RIS See einibeheiiincininsiosdiuldiaiaiciapintdpentusimhiienansisins 10

Heier’s Trucking, Inc. v. Waupaca County, 569

N.W.2d 352 (Wis. Ct. App. 1997)... 6

iil

TABLE OF AUTHORITIES—Continued

Page

Huish Detergents, Inc. v. Warren County, 214

ed f os f | Ree 6

IESI AR Corp. v. Northwest Ark. Regional Solid

Waste Mgmt. Dist., 433 F.3d 600 (8th Cir.

Lebanon Farms Disposal, Inc. v. County of

Lebanon, No. 03-00682, 2006 WL 1876622

CRETE. FU. GS, FID ei setesccescctcsiccsipinttinsnvsscens 7, 11, 25

National Solid Waste Mgmt. Ass'n v. Daviess

County, 434 F.3d 898 (6th Cir. 2006)................ 6,7, 11

National Solid Waste Mgmt. Ass'n v. Pine Belt

Regional Solid Waste Mgmt. Auth., 389 F.3d

Fe CI GC Be acesiesicictatonmnninsntiiiinnsingimnisis 6

National Solid Waste Mgmt. Ass'n v. Pine Belt

Regional Solid Waste Mgmt. Auth., 261

F.Supp.2d 644 (S.D. Miss. 2003) .................006 6, 11

On The Green Apartments L.L.C. v. City of

Tacoma, 241 F.3d 1235 (9th Cir. 2001)............ 25

Oregon Waste Sys., Inc. v. Dept. of Environ-

mental Quality, 511 U.S. 93 (1994)... 9

Philadelphia v. New Jersey, 437 U.S. 617 (1978). 9,10

Pine Ridge Recycling v. Butts County, 855 F.

Supp. 1264 (M.D. Ga. 1994) 00.0... eee eeceseeeeees 12

Randy’s Sanitation, Inc. v. Wright County, 65 F.

~ Supp. 2d 1017 (D. Minn. 1999)... 6

Southcentral Pa. Waste Haulers Ass'n vy.

Bedford-Fulton-Huntington Solid Waste Auth.,

877 F. Supp. 935 (M.D. Pa. 1994)... cece 1]

U & I Sanitation v. City of Columbus, 205 F.3d

1063 (8th Cir.), reh'g and reh’g en banc

denied, 2000 U.S. App. LEXIS 5173 (8th Cir.

SE, SR Sieh dii atic lictcricetiniadacteibeimiteidutiadd 6, 10, 15, 25

Waste Mgmt. of Carolinas, Inc. v. New Hanover |

Cty., No. 93-113 (E.D.N.C. Feb. 21, 2003)....... 6

TABLE OF AUTHORITIES—Continued

Waste Mgmt., Inc. v. Metro. Gov't, 130 F.3d 731

(6th Cir. 1997), cert. denied, 523 U.S. 1094

Waste Recycling, Inc. v. Southeast Ala. Solid

Waste Disposal Auth., 814 F. Supp. 1566

(M.D. Ala. 1993), aff'd mem., 29 F.3d 641

CDE Ge Fe ticksiien-nscrcdinnstcesiveesiinncleatatimatoies

Zenith/Kremer Waste Sys., Inc. v. Western Lake

Superior Sanitary Dist., No. 5-95-228, 1996

WL 612465 (D. Minn. July 2, 1996)............:000

STATUTES AND REGULATIONS

Guns seb ei

OUST CON i a

pie. tt Race ckeeiene

pe Seen

40 C.F.R. §§ 62.14350-14356 .......ccescsccssssesesescseen

40 C.F.R. §§ 63.1930-1990 .....csccccssessscsscsssseseseesen

i a ie

LEGISLATIVE MATERIALS

House Hearings, Bills & Resolutions

Municipal Solid Waste Flow Control Act of

2001, H.R. 1214, 107th Cong. § 2 (2001).........

Solid Waste Interstate Transportation Act of

2001, H.R. 1213, 107th Cong. § 2 (2001).........

Solid Waste Interstate Transportation and Local

Authority Act of 1999, H.R. 1190, 106th

CI, 5 Sr ee ecccsiscducintintephnsiniaadaaeiennniapanababini

Municipal Solid Waste Flow Control Act of

1997, H.R. 943, 105th Cong. § 2 (1997)...........

H.R. Res. 349, 104th Cong. § 2 (1996).................

Page

12, 22

TABLE OF AUTHORITIES—Continued

State and Local Government Interstate Waste

Control Act of 1995, H.R. 2323, 104th Cong.

H.R. 1085, 104th Cong. § 2 (1995)...

Public Debt Relief Act of 1995, H.R. 2838, 104th

a Oe initncstiinssnascenninciomennonsnsinienntctocs

Flow Control Act of 1994, H.R. 4683, 103d

III IIR 0 ITI iin ttc teidenternindibatmenepiats

Senate Hearings & Bills

Solid Waste Interstate Transportation and Local

Authority Act of 2001, S. 1194, 107th Cong.

ia aia ail atti ecetesiilititaaderntenlogiiemeiok

Interstate Transportation of Municipal Waste

and Flow Control: Hearing on S. 533, S. 663

and S. 872 Before the Senate Comm. On En-

vironment and Public Works, 106th Cong.

Municipal Solid Waste Interstate Transportation

and Local Authority Act of 1999, S. 872,

Be Se as Sr Oe a rcintetsinaisnntntgctncccttpntinnnante

Solid Waste Interstate Transportation and Local

Authority Act of 1999, S. 663, 106th Cong.

i TUT enticistnlaseidinidapmessiniaendeidianienhinginenincniee

Transportation and Flow Control of Solid Waste:

Hearing Before the Senate Comm. On Envir-

onment and Public Works, \05th Cong. (1997)..

Municipal Solid Waste Flow Control Act of

1995, S. 534, 104th Cong. § 202 (1995)............

Municipal Waste Flow Control Transition Act of

1995, S. 485, 104th Cong. § 2 (1995).......0.00.....

Flow Control Act of 1994, S. 2227, 103d Cong.

i aT cendhicsiicenieiaphiedlibiiansdbegichshintidilbinhcatainipninapttie

Page

TABLE OF AUTHORITIES—Continued

Page

House & Senate Reports

S. Rep. No. 104-S2 (1995)...........cccccoresescsssesscesees 4

H.R. Rep. No. 103-738 (1994) .......cccccccsenseeeseeeeees 5

S. Rep. No. 103-322 (1994)...............csscossssssesseseees 5

MISCELLANEOUS

Biocycle, The State of Garbage in America,

CIE MIRE cicssnissivscenentstnidetiinsdpenenetetplidinanibiplanaengs 12

Chartwell Information, The Directory & Atlas of

Solid Waste Disposal Facilities 2003 (7th ed.

ie wiisihceiiteicscieipaitsiiiininptincibiadiiientiacinnatiniiiaijauanitings 7,18

Department of Sanitation, Comprehensive Solid

Waste Mgmi. Plan (July 2006) (www.nyc.gov/

html/dsny/html/reports/swmp-4oct.shtml) ........ 21

Douglas Brill, Less Trash Means Less Cash,

Easton Express-Times (Oct 23, 2006)........ indinte 13

Eric Lipton, City Trash Follows Long and

Winding Road, N.Y. Times, Mar. 24, 2001....... 14

Flow Controls and Municipal Solid Waste, EPA

Office of Solid Waste, EPA 530-R-95-008

SEIIND CUTIE sib soiltal didiestibbinenpcednenueiipensbsiiaelasntlailcitie 24

Geoffrey Oberhaus, The Dormant Commerce

Clause Dumps New Jersey's Solid Waste

‘ow Control” Regulations: Now What?

ssible Constitutional Alternatives to the

Current “Flow Control” System, Vol. 29, No.

ase 23

James E. McCarthy, CRS Report for Congress:

Interstate Shipment of Municipal Solid Waste:

2004 Update (Sept. 9, 2004) 00.0... cccccceeeeeeeeeee 14,15

John Turner, The Flow Control of Solid Waste

and the Commerce Clause: Carbone and Its

Progeny, 7 Vill. Env. L. Journal 203 (1996)..... 9

Vii

TABLE OF AUTHORITIES—Continued

Landfill Methane Outreach Program at www.

acitidacetatteincnintentstinnnditiadnicitatnialenatn

Largest Landfills, Waste News (Nov. 6, 2006).....

National Economic Research Associates, The

Cost of Flow Control (May 3, 1995)...............+.

Rick Hampson, Trash Provides ‘Horn O’ Plenty

For Towns, USA Today (Sept. 29, 2003)..........

U.S. Environmental Protection Agency, Munic-

ipal Solid Waste Generation, Recycling, and

Disposal in the United States: Facts and

I Se I iets

U.S. Environmental Protection Agency, Munic-

ipal Solid Waste in the United States: 2005

IS I a cicisnrnisetaccinteticnttbinnitiinntediinnesine

U.S. Environmental Protection Agency, Policy

for Municipality and Municipal Solid Waste

CERCLA Settlements at NPL Co-Disposal

i ll

U.S. Environmental Protection Agency. Wastes,

ee Se aE cnt stecrechcinisttssuevitiecetenicnicing

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IN-THE

Supreme Court of the United States

No. 05-1345

UNITED HAULERS ASSOCIATION, INC., TRANSFER SYSTEMS,

INC., BLISS ENTERPRISES, INC., KEN WITTMAN SANITATION,

BRISTOL TRASH REMOVAL, LEVITT’S COMMERCIAL CON-

TAINERS, INC., and INGERSOLL PICKUP INC.,

- Petitioners,

Vv.

ONEIDA-HERKIMER SOLID WASTE MANAGEMENT AUTHORITY,

COUNTY OF ONEIDA, and COUNTY OF HERKIMER,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF AMICI CURIAE NATIONAL SOLID ~ .-

WASTES MANAGEMENT ASSOCIATION,

AMERICAN TRUCKING ASSOCIATIONS, INC., AND

NATIONAL ASSOCIATION OF MANUFACTURERS

INTEREST OF THE AMICI CURIAE

The National Solid Wastes Management Association

(“NSWMA”), the American Trucking Associations, Inc.

(ATA), and the National Association of Manufacturers

(NAM) respectfully submit this brief as amici curiae. '

' Pursuant to Supreme Court Rule 37.6, amici curiae state that no

counsel for any party to this dispute authored this brief in whole or in part

and no person or entity, other than amici curiae and their members, made

NSWMaA is a not-for-profit trade association whose 1700

member companies operate in all fifty states. Collectively,

these private sector companies engage in nearly every aspect

of solid waste management. NSWMA’s members include

collectors and transporters of solid waste; operators of solid

waste treatment, storage and disposal facilities; waste recy-

clers; and firms providing legal, financial and consulting

services to the waste management industry. NSWMA regu-

larly represents its members in matters before the courts,

Congress and regulatory agencies. It filed an amicus brief in

support of the petitioner in the case of C&A Carbone v.

Clarkstown, 511 U.S. 383 (1994), in which this Court held

that Clarkstown, New York’s flow control laws violated the

dormant Commerce Clause.

ATA is a nonprofit corporation that serves as the national

trade association of the trucking industry. It has over 2,000

direct motor carrier members and, in cooperation with state

trucking associations and affiliated national trucking confer-

ences, ATA represents tens of thousands of motor carriers.

ATA was created to promote and protect the interests of the

trucking industry, which consists of every type and geo-

graphical scope of motor carrier operation in the United

States, including for-hire carriers, private carriers, leasing

companies and others. ATA regularly advocates the trucking

industry’s position before the United States Supreme Court

and other courts. ATA seeks to preserve the interstate mar-

ket in solid waste and recyclable materials on behalf of

the numerous ATA members already engaged in, or plan-

ning to become engaged in, the interstate transportation of

such materials.

a monetary contribution to the preparation or submission of this brief. All

parties have consented to this filing in letters on file with the Office of the

Clerk of this Court. -

The National Association of Manufacturers is the nation’s

largest industrial trade association, representing small and

large manufacturers in every industrial sector and in all 50

states. The NAM’s mission is to enhance the competitiveness

of manufacturers by shaping a legislative and regulatory

environment conducive to U.S. economic growth and to

increase understanding among policymakers, the media and

the general public about the vital role of manufacturing to

America’s economic future and living standards. NAM’s

members will be forced to pay increased solid waste dis-

posal costs due to flow control laws if the decision below is

not overturned.

The appeals court in this case has issued a strained and

idiosyncratic interpretation of this Court’s decision in the

Carbone flow control case. While the overwhelming ma-

jority of federal courts that have addressed this issue in the

twelve years since Carbone have applied a “virtually per se

illegal” Commerce Clause standard of review, the federal

appeals court below patched together its own unique reading

of Carbone, and applied a far more lenient balancing test.

For the reasons set forth below, and in Petitioners’ Brief, this

analysis and the resulting decision are legally unsupportable,

and, if not reversed, will lead to a resumption of local solid

waste disposal monopolies, to the detriment of solid waste

haulers, disposal facilities, the communities that host and

receive financial benefits from such facilities, long-haul

transporters, and importantly, customers/waste generators.

Further, the policy arguments for Respondents’ flow control

ordinances are fundamentally flawed, and there are other

mechanisms that Respondents can use to achieve the pur-

ported economic and environmental benefits they seek.

Five years ago, NSWMA, ATA, and NAM warned that

the Second Circuit’s initial decision in this case provided a

“blueprint” for local governments to evade their Commerce

Clause obligations, and predicted that other localities, includ-

ing local governments outside the Second Circuit, would use

this case as an excuse to prevent waste from entering the

interstate market. Brief of Amici Curiae National Solid

Wastes Management Association, ef al (No. 01-686) at 6.

Unfortunately, this prediction has come true. The past few

years have seen a substantial increase in flow control laws

and legal challenges to them under the dormant Commerce

Clause. In many of these instances, local governments have

sought to justify their monopolization of waste flow by citing

to the Second Circuit’s decisions in this proceeding. Unless

reversed by this Court, the decision below threatens to disrupt

even further the functioning of the interstate market for solid

waste and recycling services.

Prior to this Court’s decision in Carbone, the balkanization

of that market was a major threat to the waste industry and to

the businesses thai depend on its services. By 1995, over 75%

of the states had authorized flow contrel laws’ and local

governments were rushing to take advaniage of the oppor-

tunity to ensure the success of their local disposal facilities by

preventing the waste generated in the locality from being

taken anywhere else. The predictable result was an escalation

of prices for solid waste disposal, as protected facilities set

their rates without fear of competition. See The Cost of Flow

Control, National Economic Research Associates at 1-2

(May 3, 1995) (flow control adds about 33 percent to average

landfill and transfer station disposal costs). Moreover, a

snowball effect was rapidly developing, as other localities

were forced to respond by enacting their own flow control

laws to protect local facilities which previously had depended

on out-of-state waste for their financial viability.

ee eee ee eee

*'S. Rep. No. 104-52, at 5-6 (1995) (as of 1995, thirty-five states, the

District of Columbia and the Virgin Islands directly authorized flow

control, and an additional four states indirectly authorized it through local

solid waste management plans, home rule or other mechanisms).

In Carbone, this Court unequivocally held that the chal-

lenged flow control ordinance discriminated against interstate

commerce and that any “local problems,” including health

and environmental problems, could be solved by “the unob-

structed flow of interstate commerce itself. . . .” 511 U.S. at

393. However, localities with existing flow control laws did

not acquiesce gracefully to this Court’s decision. In addition

to seeking legislation from Congress specifically authoriz-

ing flow control laws (which was vigorously opposed by

NSWMA),° localities sought to perpetuate flow control by

attempting to distinguish their particular laws from those

struck down in Carbone and by making cosmetic changes to

their ordinances. Another wave of litigation ensued, and the

courts once again became “clogged with cases challenging

* See, e.g., Solid Waste Interstate Transportation Act of 2001, H.R.

1213, 107th Cong. § 2 (2001); Municipal Solid Waste Flow Control Act

of 2001, H.R. 1214, 107th Cong. § 2 (2001); Solid Waste Interstate

Transportation and Local Authority Act of 2001, S. 1194, 107th Cong. § 3

(2001); Solid Waste Interstate Transportation and Local Authority Act

of 1999,-H.R. 1190, 106th Cong. § 3 (1999); Solid Waste Interstate

Transportation and Local Authority Act of 1999, S. 663, 106th Cong. § 3

(1999); Municipal Solid Waste Interstate Transportation and Local

Authority Act of 1999, S. 872, 106th Cong. § 5 (1999); Municipal Solid

Waste Flow Control Act of 1997, H.R. 943, 105th Cong. § 2 (1997); H.R.

Res. 349, 104th Cong. § 2 (1996); State and Local Government Interstate

Waste Control Act of 1995, H.R. 2323, 104th Cong. (1995); Local Gov-

ernments Flow Control Act of 1995, H.R. 1085, 104th Cong. § 2 (1995);

Public Debt Relief Act of 1995, H.R. 2838, 104th Cong. § 2 (1995);

Municipal Waste Flow Control Transition Act of 1995, S. 485, 104th

Cong. § 2 (1995); Municipal Solid Waste Flow Control Act of 1995, S.

534, 104th Cong. § 202 (1995): Flow Control Act of 1994, H.R. 4683,

103d Cong. § 1 (1994); Flow Control Act of 1994, S. 2227, 103d Cong.

§ 2 (1994); Interstate Transportation of Municipal Waste and Flow Con-

trol: Hearing on S. 533, S. 663 and S. 872 Before the Senate Comm. on

Environment and Public Works, 106th Cong. (1999); Transportation and

Flow Control of Solid Waste: Hearing Before the Senate Comm. on Envi-

ronment and Public Works, \0S5th Cong. (1997); S. Rep. No. 103-322

('994); H.R. Rep. No. 103-738 (1994).

restrictions on waste-related services, making garbage the

modern legal! battleground over the Commerce Clause.” Huish

Detergents, Inc. v. Warren County, 214 F.3d 707, 713 (6th

Cir. 2000). The courts promptly overturned many of these

laws,’ and localities gradually have been brought into com-

pliance with their Commerce Clause obligations.

An affirmance by this Court, based on the meaningless

“public-private distinction” invented by the Second Circuit,

threatens to undo much that has been accomplished. In

response to the Second Circuit’s initial 2001 decision in_this

case, Pet. App. at 22a-53a, local governments throughout the

United States have enacted flow control laws that rely on the

Second Circuit’s novel interpretation of Carbone and the

dormant Commerce Clause. See National Solid Waste Memt.

Ass'n v. Daviess County, 434 F.3d 898 (6th Cir. 2006), peti-

tion for cert. filed, 75 U.S.L.W. 3106 (June 28, 2006) (No.

06-359); National Solid Waste Mgmt. Ass'n v. Pine Belt Re-

gional Solid Waste Mgmt. Auth., 261 F. Supp. 2d 644 (S.D.

Miss. 2003), rev'd in part, 389 F.3d 491 (Sth Cir. 2004), cert.

denied, 126 S. Ct. 332 (2005); Waste Mgmt. of Carolinas, Inc.

v. New Hanover Cty., No. 93-113 (E.D.N.C. Feb. 21, 2003).

* See, e.g.; Huish Detergents, 214 F.3d at 715-16; U & I Sanitation v.

City of Columbus, 205 F.3d 1063 (8th Cir.), reh’g and reh'g en banc

denied, 2000 U.S. App. LEXIS 5173 (8th Cir. Mar. 24, 2000); Waste

Mgmt., Inc. v. Metro. Gov't, 130 F.3d 731 (6th Cir. 1997), cert. denied,

523 U.S. 1094 (1998); Adlantic Coast Demolition & Recycling, Inc. v.

Board of Chosen Freeholders, 48 F.3d 701, 712 (1995), reh’g and reh’g

en banc denied, 1995 U.S. App. LEXIS 6454 (3d Cir. Mar. 28, 1995);

Coastal Carting Ltd. v. Broward County, 75 F. Supp. 2d 1350 (S.D. Fla.

1999); Randy's Sanitation, Inc. v. Wright County, 65 F. Supp. 2d 1017 (D.

Minn. 1999); Condon v. Andino, Inc., 961 F. Supp. 323 (D. Me. 1997);

Waste Recycling. Inc. v. Southeast Ala. Solid Waste Disposal Auth , 814

F. Supp. 1566 (M.D. Ala. 1993), aff'd mem., 29 F.3d 641 (Ith Cir.

1994); City of Paterson v. Passaic County Bd. of Chosen Freeholders,

753 A.2d 661 (N.J. 2000); Heier's Trucking, Inc. v. Waupaca County, 569

N.W_.2d 352 (Wis. Ct. App. 1997).

In the Daviess County case, the Sixth Circuit expressly “de-

cline[d] to adopt” the “private-public distinction” created by

the Second Circuit in this case. 434 F.3d at 909. Charac-

terizing the Second Circuit’s decision as “surprising,” id. at

910, the Sixth Circuit “respectfully disagree[d] with the Sec-

ond Circuit on the proposition that Carbone lends support for

the public-private distinction drawn by that court.” /d. While

the courts have almost universally rejected the Second

Circuit’s United Haulers analysis, this has not deterred some

local governments from passing new flow control laws. See,

e.g., Lebanon Farms Disposal, Inc. v. County of Lebanon,

No. 03-00682, 2006 WL 1876622 (M.D. Pa. July 5, 2006)

(in-validating 2003 flow control law directing solid waste to

government-owned landfill). The continued enactment of

anti-competitive flow control laws, which create local waste

monopolies immunized from the benefits of free market com-

petition, poses a threat to the solid waste industry, long-haul

transporters, the communities that host landfills and others.

Overturning the flawed decision below is thus essential to

ensure that the interstate trade in solid waste and recyclables,

and the important constitutional principles underlying the

Commerce Clause, are not thwarted.

SUMMARY OF ARGUMENT

Unless the decision of the court below is promptly re-

versed, the interstate market in solid waste and recyclables

will be seriously disrupted. Over 60 percent of the nation’s

waste facilities currently are owned by public entities.” The

Second Circuit’s decision, by providing a blueprint for

governments to evade Carbone, virtually ensures that flow

control laws promptly will be re-enacted with respect to many

of those facilities, thereby locking millions of tons of waste

* Chartwell Information, Directory & Atlas of Solid Waste Disposal

Facilities 2003, Table 2 at vii (7th ed. 2003) (62% of waste facilities are

publicly owned).

out of the interstate market. Such effects will not be limited to

states in the Second Circuit. Virtually every state in the nation

receives waste from other states. Indeed, since the Second

Circuit’s initial decision in this case, local governments

in Kentucky (Daviess County), Mississippi (Pine Belt

Solid Waste Management Authority), Pennsylvania (Lebanon

County) and elsewhere have adopted flow control laws, some

of which rely expressly on the Second Circuit’s erroneous

interpretation of Carbone and the dormant Commerce Clause.

The Second Circuit’s decision is at odds with both modern

business realities and this Court’s current Commerce Clause

jurisprudence. By making the constitutionality of a flow con-

trol ordinance turn on the ownership of the favored facility,

the court below has ignored the practical economic effect of

the ordinance—which this Court repeatedly has emphasized

is the key determinant when analyzing issues of discrim-

ination against interstate commerce. Am. Trucking Ass’ns v.

Scheiner, 483 U.S. 266 (1987) (“ATA”): Complete Auto

Transit, Inc. v. Brady, 430 U.S. 274 (1977). The effect of

flow control on competing out-of-state waste facilities and on

the haulers, interstate trucking companies, railroads and barge

lines that seek to transport waste to those facilities is the same

regardless of whether the favored local facility is privately or

publicly owned. The effect also will be felt by the generators

who use these facilities. This Court, in Carbone, already has

concluded that the economic effects of flow control are

“interstate in reach,” 511 U.S. at 389, and that such laws

discriminate against interstate commerce. A differetice in

the ownership of the facilities favored by a flow control

ordinance cannot change that reality.

ARGUMENT

I. THE SECOND CIRCUIT’S INTERPRETATION

OF CARBONE AND THE DORMANT COM-

MERCE CLAUSE IS FUNDAMENTALLY

FLAWED

The Second Circuit’s interpretation and analysis of the

Court’s decision in Carbone and its application of the

dormant Commerce Clause are fundamentally flawed. As set

forth by Petitioners in their brief, the appeals court’s ruling

that the Pike balancing test applies when a flow contro] law

designates government-owned waste disposal facilities as the

recipient of waste is at odds with both well-settled precedent

and common sense.

None of this Court’s dormant Commerce Clause cases

remotely suggests that there is some sort of “public-private

distinction” between government-owned and privately-owned

facilities. The dormant Commerce Clause’s overriding pur-

pose is to prevent states or local governments from placing

themselves “in a position of economic isolation.” H.P. Hood

& Sons, Inc. v. Du Mond, 336 U.S. 525, 537-38 (1949). Asa

result, when local governments establish barriers to interstate

trade, a “virtually per se rule of invalidity has been erected.”

Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978).

Indeed, the Court has routinely found “parochial legislation

of this kind to be constitutionally invalid.” /d. at 627.° The

same dormant Commerce Clause analysis was applied by the

Court in a series of decisions that struck down efforts by

states to discriminate against out-of-state waste. See Oregon

Waste Sys., Inc. v. Dept. of Environmental Quality, 511 U.S.

93 (1994): Fort Gratiot Landfill v. Michigan Dept. of Natural

° See John Turner, The Flow Control of Solid Waste and the Commerce

Clause: Carbone and Its Progeny, 7 Vill. Env. L. Journal 203, 260 (1996)

(“The Commerce Clause serves an important—indeed, irreplaceable-

function as a mandate for economic cooperation and unification.”).

Resources, 504 U.S. 353 (1992); Chemical Waste Mzmt., Inc.

v. Hunt, 504 U.S. 334 (1992); Philadelphia v. New Jersey,

supra.

Since Carbone was decided, it has been understood by all

parties with a stake in solid waste disposal—including

municipalities and counties as well as solid waste facility

operators, recyclers and haulers—to apply to privately-owned

and publicly-owned facilities alike. This seemed apparent

from Carbone itself, where the transfer station protected by

the flow control ordinance was privately owned at the time

of the litigation, but was scheduled to revert to municipal

ownership shortly after the Court issued its decision.’ Yet

despite the filing of an amicus brief urging this Court to limit

its decision to privately-owned facilities* and a vigorous dis-

sent urging that the Clarkstown ordinance be upheld because

the “one proprietor so favored is essentially an agent of the

municipal government,”’ the majority opinion did not even

hint that the constitutionality of the ordinance might hinge on

whether the case was decided befure or after Clarkstown

exercised its option to purchase the facility.

In the aftermath of Carbone, at least three courts of appeals

and three district courts invalidated flow control laws where

the facility at issue was publicly owned.'® When New

” Carbone, 511 U.S. at 383. Shortly after the Court issued its decision

in Carbone, ownership of the transfer station reverted to the Town of

Clarkstown.

* See Brief of Amicus Curiae City of Springfield, Missouri at 11-15,

Carbone (No. 92-1402).

* Carbone, 511 U.S. at 416 (Souter, J:, dissenting). Moreover, the

Clarkstown ordinance on its face referred to the designated transfer station

as “the Town of Clarkstown solid waste facility... .” /d at 396.

° See U & I Sanitation, 205 F.3d at 1065-66, 1071-72 (city-owned

transfer station); Waste Mgmt. 130 F.3d at 733, 736 (publicly owned waste-

to-energy facility): Harvey & Harvey, Inc. v. County of Chester. 68 F.3d

788, 794 (3d Cir. 1995) (county owned landfills), cert. denied. $16 U.S.

Jersey’s state-wide flow control system, which favored both

privately-owned and government-owned disposal facilities,

was declared unconstitutional by the Third Circuit, see Ar-

lantic Coast Demo. & Recycling, Inc. v. Board of Chosen

Freeholders, 48 F.3d 701 (3d Cir. 1995), the appeals court

did not draw any distinction between those disposal facilities .

based on who owned them. "'

Most recently, in NSWMA v. Daviess County, the Sixth

Circuit expressly declined to follow the Second Circuit’s

“surprising” interpretation of the Carbone decision. 434 F.3d

at 909-912. Carefully parsing the language of Carbone, it

concluded that “[flor every sentence in the decision that can

be interpreted as supporting such a distinction, there is a

sentence that can be interpreted in opposition.” /d. at 910.

The Sixth Circuit also found the Second Circuit’s inter-

pretation of other dormant Commerce Clause devisions to be

“similarly strained.” Jd. at 912. District courts that have had

occasion to address the significance of public versus private

ownership of waste facilities have similarly concluded that

public ownership made no difference. '?

1173 (1996); Lebanon Farms, supra; Zenith/Kremer Waste Sys., Inc. v.

Western Lake Superior Sanitary Dist., No. 5-95-228, 1996 WL 612465, at

**|-3, 10 n.13 (D. Minn. July 2, 1996) (waste-to-energy facility owned by

waste district); Connecticut Carting Co. v. Town of East Lyme, 946 F.

Supp. 152, 154 (D. Conn. 1996) (publicly owned waste disposal plant).

'' Many of the facilities favored by New Jersey county flow control

laws were government-owned. See Atlantic Coast Demolition & Recy-

cling, Inc. v. Board of Chosen Freeholders, \\12 F.3d 652, 673-82 (3d Cir.

1997) (App.) (identifying specific government-owned disposal facilities

designated under New Jersey's flow control laws).

'? See National Solid Wastes Mgmt. Ass'n v. Pine Belt Solid Waste

Mgmt. Auth, 261 F.Supp.2d 644 (S.D. Miss. 2063) (rejecting Second

Circuit's analysis of Carbone), rev'd on other grownds, 389 F.3d 491 (Sth

Cir. 2004); Southcentral Pa. Waste Haulers Ass'n v. Bedford-Fulton-

Huntington Solid Waste Auth., 877 F. Supp. 935, 943 (M.D. Pa. 1994)

Il. CREATING A PUBLIC OWNERSHIP DISTINC-

TION COULD FUNDAMENTALLY ALTER

THE CURRENT EFFICIENT AND ENVIRON-

MENTALLY PROTECTIVE INTERSTATE

WASTE DISPOSAL SYSTEM

If the public ownership exception to traditional dormant

Commerce Clause principles invented by the Second Circuit

is affirmed, it could have a dramatic adverse impact on the

efficient and environmentally protective interstate waste dis-

posal system that has developed over the past several dec-

ades. As a result of tough federal regulations issued under the

Resource Conservation and Recovery Act, 42 U.S.C. § 6901

et seq. (RCRA), many small municipal “dumps” closed.'? In

response, both private industry and local governments devel-

oped and opened larger, more environmentally protective

sanitary landfills that receive waste from larger geographic

“wastesheds.” Often, these wastesheds cross state lines. These

modern sanitary landfills have sophisticated groundwater

monitoring, leachate collection and gas collection and control

systems as required under the RCRA Subtitle D regulations,

40 C.F.R. Part 258. The U.S. Environmental! Protection

Agency (EPA) recognizes that modern landfills are “well-

(invalidating a flow control law and stating that the Court was “not

persuaded that the public nature of the [designated] facility changes the

applicable analysis”). See also Pine Ridge Recycling v. Butts County, 855

F. Supp. 1264, 1275 (M.D. Ga. 1994) (finding that local government

officials “engineered to prohibit a competitor from entering the waste

disposal market” in order to subsidize construction of a new publicly

owned landfill, and explaining that “[i]t should make little difference that

the [waste authority] owns its [landfill] currently and the facility in

Carbone would be turned over to the town after five years of private

operation. Such a distinction would focus on form and ignore substance”)

(emphasis added).

'’ The number of landfills in the United States has declined from nearly

8,000 in 1988 to fewer than 1,700 in 2004. Biocycle, The State of Gar-

bage in America, (April 2006) at 27.

engineered facilities that are located, designed, operated, and

monitored to ensure compliance with federal regulations.” '

At a growing number of landfills, methane emissions are

captured and sold to local utilities or end-users, reducing

landfills’ contribution to greenhouse gases. '°

The United Haulers decision threatens many of these land-

fills and the economic viability of the communities in which

they operate. If local governments continue to enact flow

control laws based on United Haulers, some of the waste

received by these landfills will be forced instead to local,

government-owned disposal facilities. Equally important,

local governments that host these modern waste disposal

facilities and receive a substantial portion of their annual

revenue from them could face a major fiscal crisis. Landfills

pay “host fees” to the local community as high as $4.50 for

each ton received. Rick Hampson, 7rash Provides ‘Horn O’

Plenty For Towns, USA Today (Sept. 29, 2003) at ISA.

These fees often exceed one million dollars annually. /d _

In some communities, these proceeds are a significant per-

centage of the local government’s annual revenue. /d."°

The impact may be greatest in the states that receive

substantial quantities of solid waste from-other states. As of

'* U.S. Environmental Protection Agency, Wastes, Solid Waste Land-

fills (last updated Oct. 6, 2006) at www.epa.gov/epaoswer/non-hw/

muncpl/landfill/sw_landfill.htm.

'* See generally Landfill Methane Outreach Program (LMOP) at www.

epa.gov/Imop. The EPA estimates that the nearly 400 landfills in its land-

fill methane program have “prevented the release of nearly 2! million

metric tons of carbon equivalent (MMTCE—the basic unit of measure for

greenhouse gases) into the atmosphere over the past eleven years.” See

www.epa.gov/Imop/accomplish.htm. The energy generated by these land-

fills has also offset the use of 162 million barrels of oil, id, a number that

increases daily.

'® For example, host fees paid by one Peinsylvania landfill comprise

24 percent of the receiving municipalities’ budgets. Douglas Brill, Less

Trash Means Less Cash. Easton Express-Times (Oct. 23, 2006).

2003, ten states received more than one million tons origi-

nating in other states. James McCarthy, CRS Report for

Congress: Interstate Shipment of Municipal Solid Waste:

2004 Update (Sept. 9, 2004) at Table 1. New York alone

exported more than 8 million tons of solid waste in 2003,

including 3.7 million tons to Pennsylvania, 1.7 million tons

to Virginia, 1.6 million tons to New Jersey, 887,000 tons

to Ohio, and smaller quantities to Georgia, Massachusetts,

Michigan and West Virginia. /d. at CRS-21. Host com-

munities in those states which receive and depend on the

revenue associated with New York waste are threatened by

the very real likelihood that this funding source will be cut off

if the public-private distinction invented by the Second

Circuit receives this Court’s blessing. Nationwide, tens of

millions of tons of solid waste are susceptible to immediate

“hoarding” by trash-hungry localities—if the decision below

is allowed to stand.

Indeed, the entire intricate web of solid waste companies

and facilities that provide cost-effective service to residents,

businesses and local governments in the Northeast and

throughout the United States will be impacted adversely

unless the Second Circuit’s decision is overturned. Many

locul and national waste collection companies in the North-

east and elsewhere collect trash and dispose of it at transfer

stations owned by private waste companies. These com-

panies, in turn, contract with long-haul trucking companies

and railroads to transport trash from the transfer stations to

landfills and waste-to-energy plants in other states.'’ In New

'" in New York City alone, more than 250 licensed haulers collect

commercial and industrial solid waste. Most of the thousands of tons of

New York City solid waste collected daily by these haulers is processed

at transfer stations and disposed of at landfills or waste-to-energy plants

in New Jersey, Pennsylvania, Virginia, Ohio and other states. See Eric

Lipton, City Trash Follows Long and Winding Road, N.Y. Times, Mar.

24, 2001.

York, numerous waste collectors operating in counties with

publicly-owned disposal facilities currently dispose of waste

at facilities in other states. If the Court does not overturn the

decision below, local governments in those counties will be

able to initiate monopolies, or reestablish their pre-Carbone

monopolies, on solid waste disposal services. This will have

immediate adverse consequences for companies that have

acquired, constructed or expanded state-of-the-art facilities in

other states in reliance on the assumption that they would be

able to compete freely in the interstate market for the solid

waste needed to operate these facilities efficiently. The

Second Circuit’s decision similarly threatens the interstate

market in recyclables, as flow control measures often encom-

pass recyclable materials in addition to solid waste.'* Flow

control measures restricting delivery of recyclables to local,

publicly owned facilities to the detriment of competing out-

of-state facilities will seriously disrupt the interstate market

for recyclables and the industries that depend on that mar-

ket.

Counties and municipalities in states that receive out-of-

State waste can hardly be expected to stand idly by if ocal

governments in exporting states take advantage of a new-

found ability to hoard waste for their publicly-owned facil-

ities. In Pennsylvania, for example, which received more than

3.7 million tons of waste from New York in 2003,”° or in

other states, a loss of waste originating in New York will

undoubtedly lead to flow control laws as local governments

act to hoard all of their own “homegrown” product. The

resulting spiral of protectionist legislation ts precisely the

'* in the case at bar, the local flow control ordinances apply to both

solid waste and recyclables. Pet. App. at 4a-Sa.

" See, e.g, U & | Sanitation, 205 F.3d at 1069 (dis ussing the inter-

state effect of flow control on the recyclables market).

”® CRS Report at CRS-21.

profound harm that Carbone (and the Commerce Clause more

generally) was intended to halt. See Carbone, 511 U.S. at 390

(“The central rationale for the rule against discrimination is to

prohibit state or municipal laws whose object is local eco-

nomic protectionism, laws that would excite those jealous-

ies and retaliatory measures the Constitution was designed

to prevent”). |

Nor would the effects of the public-private distinction be

limited to those facilities that are publicly owned at this

moment in time. New facilities will undoubtedly be struc-

tured so as to incorporate public ownership. For example, it

would have been a simple matter for Clarkstown to have

assumed ownership of the transfer station at the outset (sub-

ject to a security interest) while contractually promising the__

entity that constructed and managed it the right to receive all

tipping fees for five years. Under the decision below, it then

could have used flow control to ensure that the private.

company’s investment was recouped within those five years.

Moreover, there is nothing to prevent a county or munici-

pality that is currently providing financial support to a pri-

vately owned facility (as Clarkstown did in Carbone) from

restructuring its relationship with the private company so as

to vest ownership in a public body—and thereby make itself

eligible for flow control. Under the Second Circuit’s novel

decision, there is no requirement that a waste facility be

publicly owned from the outset. Presumably a formerly

private facility converted to a publicly-owned facility would

be entitled to the benefit of flow control laws once the

conversion had been accomplished.”' Nor does the Second

Circuit's decision require the city or county itself to become

the-owner of the facility. Indeed, in this case the two counties

*" Under the Second Circuit’s rationale, it would appear that even

Clarkstown, New York -whose flow control ordinance was declared un-

constitutional by this Court in Carbone —could argue that its ordinance is

now constitutional! because it now owns the facility.

involved created a “waste management authority” to acquire

ownership of the facilities.” And because the “public

owner” is free under the Second Circuit’s decision to hire a

private company to actually operate the facility,’ there is

little, if any, disincentive to conversion.

Given the enormous financial benefits that flow control

laws can bring to a local government, there can be little doubt

that counties and municipalities will quickly move to take

advantage of the conversion option wherever possible.~*

While this will necessarily require the cooperation of existing

private owners, the monopoly profits made possible by flow

control should be more than enough to outweigh the costs of

conversion and make the conversion desirable for both the

local government and the private owner. Thus, the financial

balance is likely to weigh heavily in favor of conversion,

further exacerbating the pernicious effects of the public-

private distinction invented below.

*? Under the agreement between the counties and the waste manage-

ment authority, the authority is to manage and dispose of all solid waste

within the counties and operate the local energy recovery facility and

recycling center. In return, the counties guarantee the authority’s oper-

ating costs and debt service payments. Pet. App. at 26a.

> Pet. App. at 28a.

* Of course, flow control imposes substantial financial penalties on

haulers who are forced to pay disposal prices not subject to free and fair

market competition. In this case, the record reveals that haulers were

forced to pay $86 per ton when disposing of waste at Respondents’ facili-

ties, when the market rate at other nearby landfills was less than $30 per

ton. Pet. App. at 29a-30a.

Il. THE SECOND CIRCUIT’S EMPHASIS ON

FACILITY OWNERSHIP IS AT ODDS WITH

MODERN BUSINESS REALITIES AND THIS

COURT’S CURRENT COMMERCE CLAUSE

JURISPRUDENCE.

The essential premise of the Second Circuit’s decision is

that there is such a fundamental difference between privately-

owned and publicly-owned waste facilities that a different set

of Commerce Clause principles should apply. This premise,

however, is simply wrong. In today’s world, public and

private waste facilities are equal in the eyes of regulators and

the marketplace. The decision as to whether a particular

facility should be structured as a publicly owned or privately

owned entity is typically driven by practical business

considerations, such as the most advantageous financing

mechanism, potential tax consequences, and other issues, that

are wholly unrelated to the theoretical concepts that underlie

the Second Circuit’s decision.

In this context, it makes no sense to conclude, as did the

Second Circuit, that the constitutionality of flow control laws

enacted to funnel all trash in two upstate New York counties

to a local facility should turn on whether that facility is

publicly or privately owned. This is highlighted by the fact

that in over 500 counties throughout the United States, in-

cluding dozens of counties in New York alone, there is a mix

of privately owned and publicly owned waste facilities.”° In

such counties, private sector landfills, waste-to-energy facili-

ties and transfer. stations compete directly with publicly

owned facilities for solid waste. Under the Second Circuit's

“surprising” decision, a flow control law would be valid as to

the publicly owned facilities in these counties and invalid as

to the privately owned facilities, even though the difference in

** Chartwell Information, The Directory & Atlas of Solid Waste Dis-

posal Facilities 2003 (7th ed. 2003).

ownership has no practical impact either on the way in which

the flow control law affects interstate commerce or on the

day-to-day operation of the facilities. The constitutionality of

a flow control law would thus turn not on an ordinance’s

effect on interstate commerce, but on the mere happenstance

of who holds ownership in the particular facilities.

This myopic focus on ownership is at odds with both the

general thrust of modern business law and this Court’s

current Commerce Clause jurisprudence. From the business

law perspective, the clear trend is to look to the substance of

a transaction, rather than technical ownership. A prime

example is found in Article 9 of the Uniform Commercial

Code (“UCC”), which has been adopted by all fifty states and

the District of Columbia. Since 1962, the UCC has provided

that the location of title to collateral (i.e., ownership) gen-

erally is immaterial for purposes of determining the rights and

duties of parties to a secured transaction.”° This simply

reflects the reality that property ownership is no longer of

talismanic significance in business transactions. The Second

Circuit’s “form over substance” approach is also contrary

to this Court’s current Commerce Clause jurisprudence. Ad-

dressing the Commerce Clause issues raised by certain state

taxes on interstate motor carriers, this Court in ATA empha-

sized that it had “*moved toward a standard of permissibility

of state taxation, based upon its actual effect rather than its

legal terminology.’” 483 U.S. at 295 (quoting Complete Auto

Transit v. Brady, 430 U.S. 274, 281 (1977)). Eschewing the

“metaphysical approach to the Commerce Clause that focused

primarily on the character of the privilege rather than the

practical consequences of the tax,” id. at 294-95, the Court

evaluated the constitutionality of the challenged taxes on the

basis of “whether the tax produces a forbidden effect.”

Complete Auto Transit, 430 U.S. at 288. The same approach

was followed in Carbone, where this Court focused on the

fact that the “economic effects [of the flow control law] are

interstate in reach” and concluded that “[t]hese economic

effects are more than enough to bring the Clarkstown ordi-

nance within the purview of the Commerce Clause.” 511 U.S.

at 389. From a practical standpoint, it is clear that the

“effect” of local flow control laws on interstate commerce is

no different when the favored local facility is publicly owned

than when it is privately owned. In either case, the “guarantee —

of a free trade area among States,” ATA, 483 U.S. at 281, is ~

violated when a local government forces all trash in its

jurisdiction to go to a local facility. From the perspective of

the out-of-state waste facilities that can no longer compete for

trash generated in a particular county or municipality, it is

irrelevant whether the local facility that is the beneficiary of

the flow control ordinance is owned by a private entity or by

the local waste authority. In either event, the “protectionist

effect of the ordinance,” Carbone, 511 U.S. at 392, is the

same—the locally generated waste is hoarded for the benefit

of the local facility and the out-of-state competitors are shut

out of the market.

Similarly, the effect on the local trash haulers is the same,

regardless of whether the facility designated by the flow

control laws is publicly owned or privately owned. In either

case, those haulers who had been hauling trash to out-of-state

waste facilities will now have to take that trash to the desig-

nated local facility—and pay the higher tipping fee charged

by that facility.*’ They too are being deprived of access to the

interstate market for solid waste services, contrary to the

precepts of the Commerce Clause. Regardless ‘of whether

flow control laws favor publicly or privately owned facilities,

7 As the Second Circuit préviously recognized in the case at bar,

“fe]ven the lowest tipping fee charged under the Counties’ scheme is

higher than the market value for the disposal services the Authority pro-

vides.” Pet. App. at 29a.

the ripple effect of such laws will be felt throughout the

interstate transportation industry. A return to flow control will

prevent railroads and barges from accessing the interstate

market for solid waste services. Railroads and barge lines

increasingly are entering into contracts for the long-distance

transport of high volumes of trash to out-of-state disposal

facilities.”* By forcing waste to be taken to local facilities,

the public-private distinction invented by the Second Circuit

will adversely impact those railroads and barges already

engaged in, or planning to become engaged in, the interstate

transportation of waste by rail and inland waterways,

respectively.

The Supreme Court’s endorsement of the public-private

distinction would affect not only those businesses specifically

engaged in the interstate transportation of waste, but the

multitude of ordinary businesses that generate waste. Most

obviously, the creation of local government monopolies over

solid waste disposal will prevent such waste generators from

reaping the benefits of a competitive marketplace for disposal

services, including the ability to shop for price, quality of

service, and indemnification from environmental liability.

The Second Circuit’s belief that a flow control law forcing

trash to go to a publicly owned facility is “less likely to give

rise to retaliation and jealousy from neighboring states,” Pet.

App. at 48a, than one that forces trash to go to a privately

owned facility, is simply naive. The effect on an out-of-state

waste facility that is shut out of a market by flow control is

the same, regardless of who owns the favored facility, as is

the effect on the municipality or county in which that out-of-

** For example, the recently approved New York City Solid Waste

Management Plan calls for the transport of most of New York City’s solid

waste by rail or barge, in large part, because such modes of transport will

have a lesser adverse impact on the environment. See Department of

Sanitation, Comprehensive Solid Waste Mgmt. Plan (July 2006) at www.

nyc.govw/html/dsny/html/reports/swmp-4oct.shtml.

state facility is located. A local government in a neighboring

state that finds its financial well-being jeopardized by the loss

of business experienced by its own waste facility is unlikely

to eschew “retaliatory” measures simply because the flow

control law responsible for its problems is directing waste to a

publicly owned, rather than a privately owned, facility. Real-

istically, each local jurisdiction will act to protect its own

interests—including, when necessary, retaliatory measures

against other localities. This is precisely what the Commerce

Clause was intended to prevent.

IV. WASTE DISPOSAL IS NOT SOLELY A MUNIC-

IPAL FUNCTION

While waste management has historically been “a tra-

ditional interest of local government,” Respondents’ Brief

in Opposition at 6, waste disposal is not now, and has never

been, exclusively or even primarily a municipal function.

The local municipal “dumps” of generations past helped

cause the environmental degradation that compelled Congress

to enact RCRA and the Comprehensive Environmental Re-

sponse, Compensation and Liability Act (CERCLA), 42

U.S.C. § 9601 ef seq. Today, nearly two-thirds of solid waste

received at landfills is received at private sector landfills.”’

These modern, heavily regulated’ and environmentally

protective disposal facilities safely manage the majority of the

waste generated in the United States. Further, the majority of

new modern landfills (or expansions of existing landfills) are

being constructed by private companies, not. local govern-

ments. According to a recently issued survey, eight of the

° Waste News Market Handbook 2005 at 27.

fills are also regulated under the Clean Air Act. See 40 C.F.R. §§ 60.30c-

36c (emission guidelines); 40 C.F.R. §§ 60.750-759 (performance stan-

dards); 40 C.F.R. §§ 62.14350-14356; 40 C.F.R. §§ 63.1930-1990 (haz-

ardous air pollutants).

ten largest landfills in the United States are privately owned

and operated.”'

Moreover, to the extent local governments are directiy

involved in solid waste management at all, that involvement

is usually limited to the collection of residential solid waste

(often by municipal sanitation departments). It would be a

stretch for Respondents or other local governments to assert

that their “traditional” interest in waste management includes

the private sector collection and disposal of waste from

commercial and industrial generators.

Vv. THE ASSERTED BENEFITS OF FLOW CON-

TROL ARE ILLUSORY AND CAN BE

ACHIEVED BY OTHER MEANS

Flow control proponents frequently argue that creating

local waste disposal monopolies helps achieve important

public policy goals. Notwithstanding the immutable fact that

under the applicable “virtually per se invalid” standard, these

goals do not justify discrimination against interstate com-

merce, the purported benefits are illusory, and often can be

achieved in other ways that do not trample on important

constitutional rights. See, e.g., Geoffrey Oberhaus, The

Dormant Commerce Clause Dumps New Jersey’s Solid Waste

“Flow Control” Regulations: Now What? Possible Constitu-

tional Alternatives to the Current “Flow Control” System, -

Vol. 29, No. 2, Rutgers L.J. (1997-98) (suggesting altern-

atives to flow control).

One argument frequently asserted by flow control advo-

cates, and agreed with by the court below, Pet. App. at 20a, is

that by sending solid waste to a government-owned disposal

facility, a local government avoids potential environmental

liability associated with improper disposal of such waste.

On inspection, this argument is flawed. A local government

*' See Largest Landfills, Waste News (Nov. 6, 2006) at 18.

would not have any Superfund or other liability for waste

collected by private haulers disposed of at a private landfill.

Further, while in generations past some waste disposal

facilities became Superfund sites and waste generators were

identified as potentially responsible parties (PRPs), the

modern landfills developed in the wake of RCRA do not even

remotely resemble the dumps of yesteryear. Finally, the

federal government has recognized that it is unfair to impose

liability for municipal solid waste in the same manner as for

the toxic and hazardous waste frequently disposed at Super-

fund sites, and has enacted legislation and policies to reduce

the potential liability of municipal solid waste generators.”

A second argument is that flow control is necessary to

encourage recycling. Again, this argument ts simply wrong.

A federal report conclusively determined that flow control

laws are not important for achieving local recycling goals.””

Moreover, in the years after this Court struck down Clarks-

town’s flow control law, the national recycling rate has

increased from 26.1% of the municipal solid waste stream in

1995 to 32.1% percent in 2005.** If flow control encouraged

recycling, the demise of flow control following Carbone

suggests that the recycling rate should have declined over the

past twelve years.

See Pub. L. No. 107-118 (Small Business Liability Relief and

Brownfields Revitalization Act (2002) (codified at 42 U.S.C. § 9607(p)

(creating qualified exemption for certain generators of municipal solid

waste); U.S. Environmental Protection Agency, Policy for Municipality

and Municipal Solid Waste CERCLA Settlements at NPL Co-Disposal

Sites (Feb. 5, 1998).

* Flow Controls and Municipal Solid Waste, Office of Solid Waste,

EPA 530-R-95-008 (March 1995) at ES-S.

* See U.S. Environmental Protection Agency, Municipal Solid Waste

Generation, Recycling, and Disposal in the United States: Facts and

Figures for 2003 at 3 Table 2 (1995 data); U.S. Environmental Protection

Agency, Municipal Solid: Waste in the United States: 2005 Facts and

Figures at 2 Table ES-1 (2005 data).

Further, to the extent that local governments believe that it

is important to achieve these goals, there are a variety of other

tools that can be used that do not discriminate against

interstate commerce. Most obviously, as the Court correctly

observed in Carbone, local governments can impose fees or

taxes to “ensure the long-term survival of the designated

facility.” 511 U.S. at 394. Alternatively, they can reduce

costs, enact uniform safety regulations or take other steps to

achieve these purposes. See U&/ Sanitation, 205 F.3d at

1071; Lebanon Farms, supra, at 18.

Finally, local governments generally may favor local waste

disposal facilities if they provide the option for waste to be

exported to other states. A number of federal courts have

upheld “intrastate” flow control laws that designate specific

in-state waste disposal facilities, but allow haulers and others

to take waste out-of-state.’* While these laws create similar

inefficiencies to the flow control laws at issue in this case,

some courts have found that because they allow for-waste to

cross state lines, they do not discriminate against interstate

commerce. If local governments are going to create local

waste disposal monopolies, they should do so in a way that

does not trample on the well-established and venerable princi-

ples underlying the dormant Commerce Clause.

Flow control allows local governments to avoid competing

fairly in the highly competitive marketplace for waste dis-

posal, by discriminating against all potential out-of-state

disposal facilities. This inefficiency inexorably leads to

higher waste disposal costs for waste haulers and higher

waste collection costs for waste generators. The reestab-

lishment of inefficient, local waste disposal monopolies,

** See, e.g, JES! AR Corp. v. Northwest Ark. Regional Solid Waste

Mgmt. Dist., 433 F.3d @00 (8th Cir. 2006); On The Green Apartments

L.L.C. v. City of Tacoma, 241 F.3d 1235 (9th Cir. 2001).

thought to have been eradicated by this Court little more than

a decade ago, should not be countenanced.

CONCLUSION

The decision below should be reversed.

Respectfully submitted,

ROBERT DIGGES — DAVID BIDERMAN *

Deputy General Counsel General Counsel

American Trucking National Solid Wastes

Associations, Inc. Management Association

2200 Mill Road 4301 Connecticut Avenue, N.W.

Alexandria, Virginia 22314 Washington, D.C. 20008

(703) 838-1700 (202) 364-3743

Counsel for American Trucking Counsel for National Solid

Associations, Inc. Wastes Management

Association

JAN S. AMUNDSON

Senior Vice President &

General Counsel

QUENTIN RIEGEL

Vice President, Litigation &

Deputy General Counsel

National Association of Manufacturers

1331 Pennsylvania Avenue, NW

Washington, DC 20004-1790

(202) 637-3000

Counsel for National Association -

of Manufacturers -

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.