Solid Waste & Recycling


U.S. waste ruling has national implications

According to a report in the Observer-Dispatch, the U.S. Supreme Court will decide as soon as early spring just whe...

According to a report in the Observer-Dispatch, the U.S. Supreme Court will decide as soon as early spring just where waste from Oneida and Herkimer counties can go after hearing arguments in a case between Mohawk Valley waste haulers and the local waste authority.

At stake is whether the Oneida-Herkimer County Solid Waste Authority can direct that trash to its new landfill in Ava. How U.S. highest court rules could set a nationwide precedent on the extent to which governments can promote their own services over that of private services.

One point of contention among the Supreme Court’s nine justices was the potential financial and authoritative impact of the case on local government entities.

“If you win on this argument, no more municipal lifelines,” Justice David Souter said to haulers’ attorney Evan M. Tager about the precedent-setting possibilities of the case. If the haulers win, municipalities that charge fees for certain services might not be able to restrict out-of-state entities from providing those services. Under the interstate commerce clause, such arrangements could be declared unconstitutional.

Justice Anthony M. Kennedy challenged waste authority attorney Michael J. Cahill on the waste authority’s use of local laws to control the flow of trash.

“You’ve built this trash utopia where everybody sends wonderful trash and you enforce use of that by the criminal law,” Kennedy said. “So you’re engaging as a market participant, but you’re taking an extra advantage by using the criminal law to enforce… its use.”

Public vs. private interest

The case is being watched closely by governments, businesses and legal experts across the country. For local governments, a Supreme Court ruling in favor of the haulers could mean the end to laws mandating that local trash be dumped at publicly run facilities. And that could pose financial challenges for these governments, experts say.

When municipalities and authorities create their own landfills that they finance through bonds, their hope is that these facilities will generate enough tipping fees to pay off the debt, said David Driesen, a professor in Syracuse University’s College of Law.

“The lack of acceptance of flow control is making it harder to finance landfills and creating problems for municipalities,” he said.

At issue in the 12-year-old legal battle is whether Oneida and Herkimer counties have the right to enforce flow control — requiring local trash haulers to use the local municipality-owned dumping facilities as opposed to facilities in other counties or states.

The waste haulers say those other facilities charge cheaper tipping fees, which is the rate per ton of trash dumped in a disposal facility.

The attorneys who presented oral arguments Monday morning say they can’t predict which way the court will rule. There are two legal tests that can be used to judge the case, and each side favors a different test.

The waste authority is arguing that the court weight its decision toward the public benefits of flow control and against the burden to interstate commerce.

But the haulers’ association would prefer that the court judge the case using “strict scrutiny,” which means the flow control law is necessary, not just preferred, and the least restrictive of all possible alternatives.

“If they apply the strict standard, then we’ll almost most certainly win,” Tager said after the court session.

A partner with Washington, D.C.-based law firm Mayer, Brown, Rowe & Maw, Tager is representing the United Haulers Association Inc. That association was comprised of six local haulers, all now out of business, who first sued the Oneida-Herkimer Solid Waste Management Authority and the two counties 12 years ago.

“Good for everybody”

The haulers said the counties’ flow control laws passed in 1988 discriminated against interstate commerce by not allowing out-of-state dumping facilities to compete for Oneida and Herkimer counties’ waste business. This allowed the waste authority to overcharge for its tipping fees, they said.

The time for the flow control law to be struck down is long overdue, said Richard Bristol Sr., the former owner of Bristol Trash Removal, one of the six haulers that sued the waste authority.

“I think it would be good for everybody,” Bristol said. “Because I know there’s a lot of haulers that would haul out of this county and go somewhere new.”

The waste authority, however, argues that the flow control law does not violate the commerce clause because local private business is not favored over out-of-state private business. Furthermore, the waste authority provides a more environmentally-friendly comprehensive waste management plan than a privately-owned facility would, according to Cahill, an attorney for Long Island-based Germano & Cahill, the law firm representing the waste authority.

“If the people who haul the waste can simply drive it anywhere they please, it’s not a plan,” Cahill said during his oral argument. “It’s just a suggestion.”

Attorneys make distinctions

Each side was given 30 minutes to present its case. Caitlin J. Halligan, New York state’s solicitor general, used about 10 minutes of the waste authority’s allotted time to present an oral argument in favor of the waste authority’s flow control law.

The yardstick by which the case is being measured is a similar 1994 case, C&A Carbone v. Town of Clarkstown, in which the U.S. Supreme Court ruled that a town discriminated against interstate commerce by not allowing out-of-state disposal facilities to compete for the waste.

In that case, the town was giving the waste business to a private facility. The Oneida-Herkimer waste authority contends this case is different because the waste is being directed to publicly-owned facilities, including three waste transfer stations in Utica, Rome and Old Forge that take trash to the new $30 million landfill in Ava.

While flow control laws can promote good environmental policies, many municipalities have flow control laws, but far fewer are actually enforcing them, Syracuse University’s Driesen said.

“At this point, because they’ve been ruled unconstitutional, they’re afraid to,” Driesen said.

Currently, cities and towns in Oneida and Herkimer counties use various means of trash collection, including contracting with private hauling companies, hiring their own crews and having residents make their own arrangements with hauling companies.

If the waste authority loses the flow control case, an alternative option could be the two counties hiring their own crew to collect the trash, Driesen said.

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