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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 550 U.S. 330

## Text

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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)

ii
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

iv
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

Vv

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

vi
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

Page

13
23

4

13

24

24

24

13
22

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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

2

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. -

3

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-

4

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).

5

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).

6

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).

-

7

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).

8

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.

9
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.”).

10

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.

t

1]
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)

12

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.

13

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).

14

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.

15

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.

16

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.

17

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.

18

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).

19

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

© See U.C.C. § 9-202 (2000).

20

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.

21

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.

22

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.

© See 40 C.F.R. Part 258 (RCRA Subtitle D regulations). Modern land-
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).

23

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.

24

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).

25

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).

26

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0252%3A16. Public record. Not legal advice.