# 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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0252%3A20. Public record. Not legal advice.