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

Dale:

Foes, 1(200e

No. 05-1345

IN THE

Supreme Court of the United State

UNITED HAULERS ASSOCIATION, INC., e¢ al ,

Petitioners,

Vv

ONEIDA-HERKIMER SOLID WASTE

MANAGEMENT AUTHORITY, e/ al ,

Respondents

On Writ oF CERTIORARI TO THE

Unitep Staves Court OF APPEALS

FOR THE SECOND Circuit

BRIEF OF ROCKLAND COUNTY SOLID WASTE

MANAGEMENT AUTHORITY AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

Bripcet GAUNTLETT RosBert BerGen*

General Counsel Teno West

RockLanpD County Soup Leak Griccs Pauty

Waste MANAGEMENT AUTHORITY HoLtanp & Knicut LLP

420 Torne Valley Road 195 Broadway d

Hillburn, NY 10931 New York, NY 10007

(212) 513-3200

Attorneys for Amicus Curtae

* Counsel of Record

COUNSEL PRESS

(800) 274-3321 - (800) 359-6859

i

TABLE OF CONTENTS

Table of Cited Authorities .. . GME one

Interest of Amicus Curiae

Summary Of The Argument A ae oe

ED wks |e ned Kewen

Il.

Il.

The State Action Exemption From Anti-Trust

Restrictions, Long Recognized By The Court

As An Attribute Of State Sovereignty, Should

Not Be Eroded By An Unwarranted Extension

Of Dormant Commerce Clause Jurisprudence

Public Monopolies Designed To Implement

Police Power And Which Even-Handedly

Displace Competition Do Not Discriminate

Against Interstate Commerce

The Preservation of Public Monopolies

Is Essential To Our Federalist Form Of

Government .. . ad “stewed

Conclusion .

Page

10

13

u

TABLE OF CITED AUTHORITIES

Page

Cases: -

Barbier v Connolly,

113 US 27,5S Ct 357,

28 L Ed 923 (1884) Pecans i) ee

Breard v City of Alexandria, La ,

341 US 622,71S Ct 920,

95 L. Ed. 1233 (1951) Gees re eere ee 8, 11

C&A Carbone, Inc v Town of Clarkstown,

$11 U.S 3838, 114S Ct 1677,

128 L Ed 2d 399(1994) . Ne Chas Puan 13

California Reduction Co

v Sanitary Reduction Works of San Francisco,

199 U S. 306, 26S. Ct. 100,

a ee ae

Chemical Waste Mgmt v Hunt,

505US 334,112S Ct. 2009,

[aa a eee 8 8=———«C— a eH OD : 13

City of Lafayette, La

v La Power & Light Company,

435US 389,98S Ct. 1123,

55L Ed 2d 364(1978) __............ ; ; » &E

Fort Gratiot Sanitary Landfill, Inc

v Michigan Dept of Natural Res ,

504 U S. 353, 112 S Ct. 2019,

119 L. Ed. 2d 139 (1992) ... Serr Tee 12

“ul

Cited Authorities

Genentech, Inc v Eli Lilly and Co,

998 F.2d 931 (Fed. Cir. 1993), cert denied

sub nom, 510 U S 1140, 1148S. Ct 1126,

127 L. Ed 2d 434 (1994), overruled on

other grounds by 515 U.S 277,

115 S. Ct. 2137, 132 L Ed 214 (1995)

General Motors Corp v Tracy,

519U S. 278, 117 S.Ct 811,

+ 1 & 2... eer

Gibbons v Ogden,

9 Wheat. 1,6 L. Ed 23 (1824) ..

H P Hood & Sons, Inc v Du Mond,

336 U S. 525,69S Ct 657,

93 L Ed 865(1949) .. ag eh ee tee

Hancock Indus v Schaeffer,

811 F 2d 225 (3d Cir. 1986) ........

Hoover v Ronwin,

466 US 558, 104S Ct 1989,

80 L. Ed. 1989 (1984)

Huron Portland Cement Co v City of Detroit,

362 US 440, 80S Ct 813,

4L Ed 2d 852 (1960) .

Page

9, 10, 13

. 8,12

iv

Cited Authorities

Page

New Energy Co of Ind v Limbach,

486 U S. 269, 108 S.Ct 1803, —

100 L Ed. 2d 302 (1988) ewe . 16

New Orleans Water-Works, Co v Rivers,

11SUS 674,68 Ct. 273,

29 L Ed. 525 (1885) eer ee Vag > he hg 14

New State Ice Co v Liebmann,

285 U.S 262, 52S. Ct. 371,

76 L Ed 747 (1932) : i ER Ne

Northern Pacific Ry Co v United States,

356US 1,78S Ct 514,

2 L. Ed 2d 545 (1958) seed 4

Oklahoma Tax Comm’n v Jefferson Lines,

514U.S 175, 115 S.Ct 1331,

131 L Ed. 2d 261 (1995), reh'g denied

514US. 1135, 115 S Ct 2018 (1995) . ... . 9

Oregon Waste Sys , Inc

v Dept of Envtl Quality of Or,

S1LUS 93,1148 Ct 1345,

128L Ed. 2d 13 (1994) ; RS ey . 11,13

Parker v Brown,

317US 341, 63 S.Ct 307,

87 L Ed 315(1943) ... . gy os +h B

Vv

Cited Authorities

Philadelphia v New Jersey,

437 U.S 617,98S Ct 2531,

57 L. Ed. 2d 475 (1978) . > panes

Railroad Co v Husen,

95US 465, 24L Ed 527 (1877)

Slaughter-House Cases,

83 US 36,21 L Ed. 394,

16 Wall. 36(1872) —..........

Standard Oil Co v United States,

221U 8. 1,318 Ct 502,

55L Ed. 619(1911). ......

Town of Hallie v City of Eau Claire,

471US 34,1058 Ct 1713,

85 L Ed 2d 24 (1985) .

Tyler v Pipe Indus

v Wash State Dept of Revenue,

483 U.S 232 (1987) .

USA Recycling, Inc v Town of Babylon, Inc ,

66 F.3d 1272 (2d. Cir 1995), cert denied,

S517 U.S 1135, 116S Ct 1419,

134 L Ed.2d 544 (1996) ..

United States v Am Linseed Oil Co ,

262 U S. 371, 43 S. Ct 607,

67L Ed 1038 (1923)

Page

11,12

10

14

». 6, 8,14

16

11

vi

Cited Authorities

United States v Topco Assoc ,

405 US 596, 92S. Ct. 1126,

31 L. Ed 2d 515 (1972)

Federal Statutes:

Local Government Antitrust Act of 1984,

15 U.S.C. §§ 34-6

Resource Conservation and Recovery Act,

42US.C §6901(a)(4) ..

Sherman Act, ISUSC §1

US Const art.1,§8 ......

State Statutes:

N Y. Environmental Conservation Law

§§ 27-106-07 rar ss

N.Y. Public Authorities Law, §§ 2049-aa et seq

N.Y. Public Authorities Law, § 2049-tt ....

N Y Fublic Authorities Law §§ 2053-a et seq

N Y Public Authorities Law, § 2053-v

Page

17

vil

Cited Authorities

Page

Miscellaneous:

Lincoln L Davies, Note, /f You Give The Court A

Commerce Clause An Environmental Justice

Critique Of Supreme Court Interstate Waste

oe 11 Fordham Envtl. L J. 207 (1999)

cae ; Serer f . » eee

James G Hodge, Jr , The Role of New Federalism

and Public Health Law, 12 JL & Health 309

(1998) .. a ae ce 14

The Federalist No 45 a Hamilton) (E.H.

Scott ed. 1898) Yr iSte YB eee, ; 5

Wendy E. Parmet, Health Care and the Constitution

Public Health and the Role of the State in the

aes Era, 20 epentess Const L sar 267 —

a 13

James A Tobey, Public Health and the Police Power,

4N.YU L Rev 126(1927) . ve a fe ee

l

INTEREST OF AMICUS CURIAE

Amicus Curiae Rockland County Solid Waste

Management Authority (“RCSWMA”)' is a public benefit

corporation established in 1994 by an act of the Legislature

of Rockland County, New York in accordance with the New

York State Public Authorities Law * The State of New York

has entrusted RCSWMA to protect Rockland County

residents from the environmental! and health hazards that

result from the improper processing and disposal of solid

waste RCSWM<A is interested in the decision rendered in

this case because, like Respondents, it has been delegated

the authority to implement an integrated solid waste

management plan by displacing competition through a public

service monopoly *

RCSWMaA regulates the processing of solid waste by

contracting with Rockland County communities to serve as

the exclusive provider of certain types of waste management

services By displacing competition through monopoly

control, RCSWMA ts able to provide the comprehensive

waste management necessary (o satisfy the solid waste

reduction, reuse and recycling objectives of the integrated

solid waste management plan enacted by county government

If the Court reverses the decision of the Second Circuit, as

urged by Petitioners, the ability of state and local governments

1 No person or entity other the Amicus Curiae or its counsel

made a monetary contribution to the preparation or submission of

this brief Written consent to file this brief has been provided by

both parties

2 SeeN Y Pub Auth Law, §§ 2053-aet seq (McKinney 2006)

3 See N Y Pub Auth Law, §§ 2049-tt, 2053-v(2) (McKinney

2006), Res Br 5

2

to provide public services through the well-established and

heretofore legally protected public monopoly structure will be

seriously impaired. RCSWMA, as Amicus Curiae, therefore,

urges the Court to affirm the decision below.

Rockland County, New York is a largely suburban

community located sixteen miles northwest of New York City

Rockland County 1s home to five towns and nineteen villages

with a total of approximately 292,916 residents. RCSWMA

serves these municipalities through five publicly owned state-

of-the-art solid waste management facilities operated by a

combination of employees and private contractors. These

facilities include a household hazardous waste facility, a

materials recovery facility, a co-composting facility, a yardwaste

composting facility, and a transfer station and preprocessing

facility. The five facilities together process more than 220,000

tons of solid waste per year

The Rockland County integrated solid waste management

plan was enacted to address the continued increase in the

County’s production of solid waste and the impending closure

of the County’s municipal landfills. As mandated by state policy,

the County’s solid waste management plan was intended to

reduce the total amount of landfilled material by increasing the

amount of recycled solid waste Oversight by the RCSWMA

and the establishment of its processing facilities has dramatically

reduced the amount of solid waste ultimately required to be

disposed at a landfill Unlike prior solid waste regulation,

RCSWMaA’s public service monopoly in solid waste processing

provides Rockland County residents with a single publicly

accountable regulatory body responsible for the achievement

of legislatively established environmental goals Maintenance

of RCSWMA’s public service monopoty structure 1s vital to

the conservation of Rockland County’s environment and the

continued health of Rockland County residents.

3

SUMMARY OF THE ARGUMENT

It is long-standing Supreme Court precedent that state and

local governments may establish public service monopolies to

enforce the police power without incurring liability under federal

anti-trust restrictions The state action exemption from the

Sherman Act reflects the Court’s acknowledgment that the

displacement of competition by a state as a means of enforcing

its police power ts an attribute of state sovereignty. By contrast,

the dormant Commerce Clause was established by the Court to

restrict states from exercising their power as sovereigns to

promote parochial economic interests to the detriment of

interstate commerce.

Petitioners seek a decision from this Court invalidating

Respondents’ public service monopoly in solid waste processing

as a violation of the dormant Commerce Clause However,

Respondents’ public service monopoly is not motivated by

economic protectionism but by a state environmental policy to

reduce solid waste and advance the general well-being of the

public The issues presented here test the balance between the

Court’s constitutional role as a safeguard of our federalist system

and its assumed duty to limit state sovereignty to the extent it

impairs the national economy

By displacing competition, public service monopolies

permit state and local governments to enforce the police power

through the implementation of uniform policies and procedures

In the more than one hundred years since it enacted the Sherman

Act, Congress has not seen fit to use its commerce power to

restrict states’ use of public service monopolies to enforce the

police power. Furthermore, in its anti-trust jurisprudence, this

Court has consistently interpreted Congress’ inaction as

recognition of state sovereignty

4

Respondents’ displacement of competition in the market

for solid waste processing is a valid exercise of the police

power that does not result in differential treatment of

intrastate as compared to interstate commerce Invalidation

of Respondents’ public service monopoly would therefore

expand the scope of the dormant Commerce Clause — a

judicial restriction of state sovereignty — to include anti-

competitive conduct that the Court has previously accepted

as a legitimate exercise of state authority Such an increased

limitation of states’ authority would irreparably disrupt the

balance of federal and state power that is the mainstay of

our federalist system

ARGUMENT

I. The State Action Exemption From Anti-Trust

Restrictions, Long Recognized By The Court As An

Attribute Of State Sovereignty, Should Not Be Eroded

By An Unwarranted Extension Of Dormant Commerce

Clause Jurisprudence

In response to anti-competitive business activity that

consolidated wealth and power in the hands of a few

individuals and corporations, Congress enacted the Sherman

Act in 1890 by a nearly unanimous vote See Standard Oil

Co v United States, 221 US 1,50,31S Ct 502, 512, 55

L Ed 619(1911), Sherman Act, ch. 647, 26 Stat 209 (1890)

The Sherman Act prohibits the “restraint of trade or

commerce among the several states,” Sherman Act, 15 U S C

§ 1 (2006), and codifies the notion generally held at common

law that contracts in restraint of trade undermine “unfettered

competition as the rule of trade” and are inimical to economic

liberty. N Pac Ry Co v United States, 356 US 1, 4, 78

S. Ct 514, £18, 2 k Ed 2d 545 (1958) It is generally

5

accepted that the Sherman Act is the magna carta of free

enterprise City of Lafayette, La v La Power & Light

Company, 435 U.S. 389, 398, n.16,98S Ct 1123, 1129, 55

L. Ed. 2d 364 (1978) (citing United States v Topco Assoc ,

405 U.S. 596, 610, 92 S Ct 1126, 1135, 31 L. Ed 2d 515

(1972)) Its primary objective is to “secure equality of

opportunity and to protect the public against evils commonly

incident to monopoles which tend to directly suppress

the conflict for advantage called competition ...” United

States v Am Linseed Oil Co , 262 U.S 371, 388, 43S Ct

607,67 L Ed. 1038 (1923).

The Fifty-First Congress’ intent in passing the Sherman

Act was examined by this Court in Parker v Brown, 317

US 341,63 S Ct 307,87 L Ed 315 (1943) There, the

Court concluded that, while the Act prohibits anti-

competitive activity by individuals and corporations, there

was no evidence that Congress intended that prohibition to

extend to official or state action even if it resulted in the

restraint of trade It was there recognized that the states were

immune, when acting in their governmental capacity, from

federal anti-trust prosecutions pursuant to the Sherman Act

Id at 351 The state action exemption, as it ts commonly

known, 1s derived from the constitutional principles of

federalism and state sovereignty /d at 350-51

Notwithstanding the powers delegated to the federal

government by the Constitution, “the powers reserved to the

several States extend to all the objects, which, in the

ordinary course of affairs, concern the lives, liberties and

properties of the people; and the internal order, improvement,

and prosperity of the State ” The Federalist No 45, at 258

(Alexander Hamilton) (E H Scott ed. 1898) State action

anti-trust immunity permits states to impose anti-competitive

6

restraints or regulations in their sovereign capacity See

Genentech, Inc v Eli Lilly and Co , 998 F.2d 931, 948 (Fed.

Cir 1993), cert denied sub nom Regents of Univ of Cal v

Genentech, Inc ,510U S 1140, 1148S. Ct. 1126, 127 L Ed

2d 434 (1994), overruled on other grounds by Wiltonv Seven

Falls Co, 515 US 277,115 8S Ct 2137, 132 L Ed 214

(1995) Anti-competitive legislation adopted by state

legislatures 1s therefore ipso facto exempt from federal anti-

trust laws See Hoover v Ronwin, 466 U S. 558, 567-68, 104

S Ct 1989, 1995, 80 L Ed. 1989 (1984).

Although municipal corporations are not recognized in

all respects as sovereign entities and do not enjoy the full

constitutional protections afforded the states, the state action

exemption has been deemed applicable to anti-competitive

conduct by municipalities to the extent that they act as

political subdivisions of the state See City of Lafayette, at

413. A municipal corporation ts exempt from anti-trust laws

so long as the anti-competitive activity 1s authorized by a

“state policy to displace competition with regulation or

monopoly public service ” /d at413 Thus, a municipal entity

will not be liable in anti-trust where a state has a clearly

articulated anti-competitive policy or even where it is merely

foreseeable that anti-competitive conduct may result from

state legislation. See Town of Hallie v City of Eau Claire,

471 US 34, 42, 105 S Ct 1713, 1718, 85 L Ed. 2d 24

(1985) See also Local Government Antitrust Act of 1984,

15 U.S.C. §§ 34-6 (2006) (exempting local governments and

their agents from liability under the Clayton Act)

Supreme Court precedent unequivocally recognizes the

authority of state and local governments to engage in

monopolistic and other types of anti-competitive conduct to

achieve a legislatively defined end In the instant matter, the

7

Court has been asked to consider the constitutionality of

Respondents’ regulatory scheme for the management of solid

waste through a public monopoly 1n solid waste processing

It ts argued, among other things, that Respondents’ monopoly

in solid waste processing is myurious to Petitioners because

it eliminates out-of-state processors from the solid waste

processing market in Oneida and Herkimer Counties

However, it 1s clear from the state action doctrine that local

governments, such as Respondents, are allowed to displace

competition pursuant to a duly enacted state policy .

The New York State Legislature has clearly articulated a

policy authorizing the displacement of competition in the

area of solid waste management through regulation and the

provision of services by county government * The New York

Solid Waste Management Act expressly provides for the

adoption of solid waste management plans by local

governments to advance the state’s overall solid waste

reduction, disposal, and recycling goals. See N.Y. Envtl

Conserv Law §§ 27-106-07 (McKinney 2006) The New

York State Legislature has also authorized the creation of

solid waste management authorities such as RCSWMA and

Oneida-Herkimer Solid Waste Management Authority to

implement such plans See N Y Pub. Auth Law, §§ 2049-aa

et seq., 2053-a et seq. (McKinney 2006). In addition “to

further the governmental and public purposes of the

authorit[ies],” the State has empowered Rockland, Oneida,

and Herkimer Counties to adopt “local laws, ordinances and

regulations imposing appropriate and reasonable limitations

4 The New York State Public Authorities Law explicitly

declares that it 1s State policy “in the area of the control and

management of solid waste to displace competition with

regulation or monopoly control” N Y Pub Auth Law, §§ 2049-tt,

2053-v(2) (McKinney 2006)

*

on competition with respect to collecting, receiving . . [or]

processing . solid waste.” N.Y. Pub. Auth Law, §§ 2049-tt,

2053-v(2) (McKinney 2006).

Petitioners contend that Respondents cannot use a public

monopoly structure to exert a regulatory affect in the market

for solid waste manageinent services because doing so

constitutes an impermissible interference with interstate

commerce. See Pet Br 39-But because Respondents have

imposed regulatory restraints on the market for waste

processing at the direction of the State, the state action

exemption and the constitutional principles on which it relies

instruct that Petitioners are not entitled to relief for any

alleged restriction of their economy liberty See Hancock

Indus v Schaeffer, 811 F.2d 225 (3d Cir 1986), Town of

Hallie, 471 U S. at 34.

The Commerce Clause vests Congress with the power

to regulate commerce among the states US Const art I,

§ 8, cl. 3. However, as illustrated by the Sherman Act and

this Court’s state action exemption jurisprudence, Congress’

power to regulate interstate commerce does not entirely

foreclose the power of the states to affect commerce within

their borders. Rather, “under our constitutional system, there

necessarily remains to the States, until the Congress acts, a

wide range for the permissible exercise of power appropriate

to their territorial jurisdiction although interstate commerce

may be affected ” Breardv City of Alexandria, La , 341 U S.

622, 634, 71S. Ct 920, 928,95 L Ed 1233 (1951) In giving

Congress the authority to regulate commerce, the Framers

did not intend to prohibit “the States from legislating on all

subjects relating to the health, life and safety of their

citizens * Huron Portland Cement Co v City of Detroit, 362

U S. 440, 443, 80S Ct. 813, 816,4 L Ed 2d 852 (1960)

9

Given the limits of Congress’ commerce power, invalidation

of public service monopolies under the dormant Commerce

Clause seems unwarranted

Despite the positive power conferred to Congress by the

Constitution to regulate interstate commerce, the Court has

“consistently held this language to contain a further, negative

command, known as the dormant Commerce Clause,

prohibiting certain state . . . [legislation] even when Congress

has failed to legislate on the subject ”" Okla Tax Comm'n v

Jefferson Lines, 514 U.S 175, 179, 115 S. Ct 1331, 1335,

131 L. Ed. 2d 261 (1995), reh’g denied 514US 1135, 115

S Ct. 2018 (1995) The Court developed the dormant

Commerce Clause to restrain states’ exercise of their

sovereign power but only insofar as states attempted to use

their authority to promote private economic interests See

H P Hood & Sons, Inc v Du Mond , 336 US 525, 539,

532, 69S. Ct 657, 666, 93 L. Ed 865 (1949) Through the

continued application of the state action exemption, this

Court has acknowledged that Congress “has done nothing to

limit its unbroken recognition of the state regulatory authority

that has created and preserved [...] local monopolies ”

General Motors Corp v Tracy, 519 U.S. 278, 305, 117

S Ct 811, 827, 136 L. Ed. 761 (1997) (recognizing the value

of state-regulated monopolies for the sale and distribution

of natural gas)

Petitioners argue that states and their political

subdivisions do not have the authority to displace competition

by establishing public monopolies to enforce the police

power. See Pet Br. 25 If the Court were to accept Petitioners’

argument, such a decision would result in a distinct

incongruity between the recognition of state sovereignty in

the exercise of the police power under the state action

10

exemption and the restraints imposed on state power by the

Court’s effort to curtail economic protectionism under

the dormant Commerce Clause. The Court’s anti-trust

jurisprudence supports the proposition that principles of state

sovereignty and federalism remove non-discriminatory public

monopolies and their attendant regulations from the scope

of dormant Commerce Clause restrictions.

II. Public Monopolies Designed To Implement Police Power

And Which Even-Handedly Displace Competition Do

iNot Discriminate Against Interstate Commerce

The primary objective of the Commerce Clause was to

ensure that “every farmer and every craftsman [would] be

encouraged to produce by the certainty that he [would] have

free access to every market in the Nation” HW P Hood &

Sons, Inc , 336 U.S. at 539 Accordingly, state legislation

enacted for the purpose of improving a state’s individual

economic position to the detriment of all others violates the

dormant Commerce Clause /d at 534-35 However, the

Framers’ goal of protecting interstate commerce “stands 1n

sharp contrast to their jealous preservation of power over

their internal affairs ... There was no desire to authorize

federal interference with social conditions or legal institutions

of the states” Jd at 533-34 To that end, the Commerce

Clause does not constitute a surrender of the states’ police

power which confers broad authority “to prescribe regulations

to promote the health, peace, morals, education, and good

order of the people ” Barbier v Connolly, 113 U.S 27,

31,58 Ct 357, 360,28 L Ed 923 (1884) See also RR

Co v Husen,95 US 465, 470-71, 24 L.Ed 527 (i877)

State legislation that 1s within the police power and is

motivated by a state’s obligation to protect the welfare of its

11

citizens, rather than economic protectionism, will be upheld

notwithstanding adverse impacts on interstate commerce. See

Breard, 341 US 622. Public monopolies are a longstanding

tool of municipal and state governments to impose regulation

or provide services that are in the interest of the public

welfare New State Ice Co v Liebmann, 285 U.S. 262, 304,

52S Ct 371, 384, 76 L Ed 747 (1932) The municipal

management of solid waste through regulations and exclusive

franchises in particular has long been considered within the

scope of states’ police power See Cal Reduction Co, v

Sanitary Reduction Works of San Francisco, 199 U §S. 306,

26S Ct 100,50 L Ed 204 (1905). Because Respondents’

public service monopoly in solid waste processing was

created pursuant to a state policy dedicated to implementing

the state’s environmental policies, it is not within the ambit

of the harm the Framers sought to avert by means of the

Commerce Clause. -

In dormant Commerce Clause jurisprudence a

discriminatory state regulation its one that results in

“differential treatment of in-state and out-of-state economic

interests that benefits the former and burdens the latter ”

Or Waste Sys, Inc v. Dept of Envtl Quality of Or, 511

US 93,99, 1148S. Ct. 1345, 1350, 128 L Ed 2d 13 (1994)

Because discriminatory state regulations promote parochial

interests and disrupt the national economy, such regulations

are subject to a “virtually per se rule of invalidity ”

Philadelphia v New Jersey, 437 U.S. 617, 624, 98 S. Ct

2531, 2535, 57 L. Ed 2d 475 (1978) State and local

regulatory schemes that displace competition and establish

public monopoly services are non-discriminatory. See USA

| Recycling, Inc v Town of Babylon, Inc , 66 F 3d 1272 (2d

Cir 1995), cert denied, 517 U.S 1135,116S Ct 1419, 134

L Ed 2d 544 (1996) Governmeni’s exclusion of all private

12

actors from a given market affords in-state businesses no

protection from or preference over out-of-state competitors.

The regulatory scheme enacted by Oneida and Herkimer

Counties to implement their integrated solid waste

management plan has eliminated the market for solid waste

processing within therr territorial jurisdiction Local haulers

and Petitioners alike are mandated to use the public

processing facility and are equally deprived of the opportunity

to employ less costly processing services available in either

the intrastate or interstate market See Res Br 30-1. The

jurisdictional limitations of neutral local regulations do not

in and of themselves result in differential treatment of local

and national enterprises See Hancock Indus , 811 F.2d 225

Monopoly public services are indeed bound to geographic

markets but this merely reflects the nature of our federalist

form of government and provides no evidence that the limits

of the state action exemption from anti-trust have been

exceeded. See id

Unlike prior dormant Commerce Clause cases presented

to the Court, this case involves a non-discriminatory

monopoly in public services within a well-recognized area

of the police power. As explained in Barbier, 113 U.S at 31-

32. “Regulations for these purposes may press with more or

less weight upon one than upon another, but they are

designed, not to impose unequal or unnecessary restrictions

upon any one, but to promote, with as little individual

incenvenience as possible, the general good ” The anti-

competitive regulation at issue here 1s thus distinguishable

from an import ban, see Fort Gratiot Sanitary Landfill, Inc

v Mich Dept of Natural Res , 504 U S. 353, 112 S. Ct. 2019,

119 L Ed 2d 139 (1992); Philadelphia, 437 US 617, ora

surcharge that discriminates between local and out-of-state

13

businesses, see Or Waste Sys , Inc ,511 US 93,Chem Waste

Mgmt v Hunt, 505 US 334, 112 S Ct 2009, 119 L. Ed

121 (1992), or a regulation that directs solid waste to a local

business to the exclusion of all others, see C&A Carbone,

Inc , v Town of Clarkstown, 511 U.S 3838, 114 S.Ct 1677,

128 L. Ed. 2d 399 (1994) See also Lincoln L Davies, Note,

If You Give The Court A Commerce Clause An

Environmental Justice Critique Of Supreme Court Interstate

Waste Jurisprudence, || Fordham Envtl. L.J 207, 233-42

(1999) While Petitioners have focused on the anti-

competitive nature of Respondents’ public service monopoly,

it 1s evident that not every restraint on trade - especially one

whose detrimental effect on out-of-state and local businesses

is identical - implicates the Commerce Clause See H P Hood

& Sons, 336 US 525.

Ill. The Preservation Of Public Monopolies Is Essential

To Our Federalist Form of Government

The provision of public services and the enforcement of

regulations by local government to protect the public welfare

— especially the public health — 1s a tradition that was

established in the colomes well before the adoption of the

Constitution. See Wendy E Parmet, Health Care and the

Constitution Public Health and the Role of the State in the

Framing Era, 20 Hastings Const. L.Q 267, 290 (1992)

(discussing a Massachusetts solid waste regulation from

1634) “When the Federal Constitution was adopted in 1789,

it was an established fact that the states possessed the right

to take suitable measures for the preservation of the health

of their citizens.” James A Tobey, Public Health and the

Police Power, 4 NYU L Rev 126, 126 (1927) The

reservation of the police power to the states is an elemental

aspect of our federalist system inasmuch as it demarcates

-

14

the bounds of state and federal government See Gibbons v

Ogden, 9 Wheat 1,6 L Ed. 23, 71 (1824). The states’ police

power is so integral to our form of government that it has

even been asserted that “[Mjuch of what citizens of the

United States take for granted including . the security of

the social order, the enjoyment of private life and property

and most notably the health of the community, are dependent

upon the exercise of power by state governments ” James G.

Hodge, Jr., The Role of New Federalism and Public Health

Law, 12 J. L & Health, 309, 322 (1998) The power to

regulate in order that the well-being of the public be preserved

has even come to be recognized by some as an obligation of

local government. Tobey, supra at 126 State and local

governments’ reliance on the public monopoly structure to

effectuate the police power is equally well-established

See New Orleans Water-Works, Co v Rivers, 115 U.S 674,

6S Ct 273,29 L Ed 525 (1885). See discussion supra

Point I

The anti-competitive monopoly structure provides a

mechanism by which state and local governments can

implement uniform standards and procedures to ensure the

general welfare of the public See eg Slaughter-House

Cases, 83 U.S 36, 21 L Ed 394, 16 Wall 36 (1872),

Res. Br 35 The displacement of competition allows state

and local governments to regulate in a manner that is

sufficiently comprehensive to secure the public good

See General Motors Corp , 519 U.S at 290; Town of Hallie,

471 U.S. at 39 Respondents’ public service monopoly in

solid waste processing allows them to regulate the “waste

stream” and to make certain the Counties fulfill their

governmental obligation to maximize waste reduction and

recycling. See Res Br. 36. Furthermore, the partial monopoly

Structure adopted by Oneida and Herkimer Counties permits

15

local government to exert a regulatory affect on solid waste

management but does not require the Counties to expend

the resources necessary to occupy an entire market.

The Court’s state action precedent permits state and local

governments to displace competition in an entire market

regardless of any anti-competitive affect on the marketplace.

See Parker, 317 US. 341 Acceptance of Petitioners’

arguments would judicially endorse the proposition that state

and local governments cannot displace competition with a

partial monopoly if doing so has an anti-competitive but non-

discriminatory effect on related sectors of the market. From

a practical perspective, state and local governments would

be forced to either operate a complete public service

monopoly that eliminated a market in its entirety or simply

abandon public services in that area altogether regardless of

the impact on public health. This all or nothing result would

do little to further the economic liberty of those in the private

sector While total public monopolies present limited

opportunities for private sector participation through the

contracting out of various services, the partial public

monopoly structure enables state and local governments to

regulate an industry by strategically displacing competition

in a discrete area even as unfettered competition remains the

rule of trade in the remainder of the market. Ironically, it 1s

the latter approach, one that leaves a substantial sector of

the industry open to free commerce, that Petitioners seek to

foreclose in the name of economic liberty.

Constraining state and local governments’ ability to

regulate through anti-competitive conduct would inevitably

diminish their capacity to exercise the police power

effectively. The debilitation of what may be the primary

16

function of state and local governments should only be

undertaken with complete certainty that doing so conforms

with the form and substance of the theory of governance

espoused by the Constitution A ruling in favor of Petitioners

would be disruptive to our constitutional framework

To the extent Congress has spoken, it has elected not to

preclude state and local governments’ use of non-

discriminatory public service monopolies See discussion

supra Part |. At the core of Petitioners’ claim lies the assertion

that the Court should interpret Congress’ silence as a

prohibition against state enforcement of the police power

through the displacement of competition Contra Tyler v Pipe

Indus v Wash State Dep't of Revenue, 483 US 232, 262

(1987) (Scalia, J, concurring in part, dissenting tn part).

See Pet Br 40 This particular incantation of the dormant

Commerce Clause, however, finds little support in our

Constitution and only intermittent support in the decisions

of the Court Jd Unlike other doctrines that inform the

understanding of our system of governance, the dormant

Commerce Clause is a judicial creation that should be

employed with prudence. See Tyler, 483 U.S. at 257.

Economic protectionism, the concern that motivated the

Court’s development of the dormant Commerce Clause, is

conspicuously absent from the facts presented here. See New .

Energy Co ofInd v Limbach, 486 U S. 269, 273, 108 S. Ct

1803, 1807, 100 L. Ed 2d 302 (1988) Furthermore, this

Court has already had occasion to interpret Congress’ silence

as to non-discriminatory, anti-competitive conduct by state

and local governments exercising the police power and has

held that such conduct ts permissible. Given the foregoing,

and that Congress has expressly recognized that it 1s the

primary role of state and local as opposed to tederal

government to regulate solid waste management,

17

see Resource Conservation and Recovery Act, 42 USC.

§ 6901(a)(4) (2006), it would seem evident that state and

local governments can establish either a total or a partial

“non-diseriminatory public monopoly to regulate and provide

solid waste management services

For the Court to hold that non-discriminatory, anti-

competitive regulation of solid waste management by state

and local go ernments violates the dormant Commerce

Clause, despite legislative and judicial evidence to the

contrary, would implicate the doctrine of separation of powers

and further complicate fundamental notions of federalism.

See Davies, supra, at 250-51 Respondents’ regulatory

conduct must either be within the scope of Congress’

enumerated powers or the within the purview of those powers -

reserved to the states; our federalist system dictates that it

cannot he within both Petitioners argue that stare decisis

demands that the Court hold in their favor But a

determination that state and local governments cannot

displace competition to enforce the police power would

extend the dormant Commerce Clause’s restraint on state

power beyond instances of economic protectionism and erode

the capacity of states to operate as sovereigns within their

sphere of governance

18

CONCLUSION

For the foregoing reasons, and those set forth in

Respondents’ brief, the judgment of the Court of Appeals

should be affirmed

Respectfully submitted,

BripGcet GAUNTLETT ROBERT BERGEN*

General Counsel TENO WEST

ROCKLAND County SOLID Leah GriGGs PAULY

WaSTE MANAGEMENT AUTHORITY Ho.tann & KniGut LLP

420 Torne Valley Road 195 Broadway

Hillburn, NY 10931 New York, NY 10007

(212) 513-3200

Attorneys for Amicus Curiae

* Counsel of Record