U.S. Supreme Court Will Review Flow Control Case

Date: September 27, 2006

Source: NSWMA

The National Solid Wastes Management Association (NSWMA) is pleased the U.S. Supreme Court has agreed to review whether two New York counties' laws designating sites for the shipment of waste violates the Commerce Clause of the U.S. Constitution - United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, No. 05-1345.

The local laws were first challenged in 1995, and initially struck down by a federal court. On appeal, the Second Circuit Court of Appeals made a distinction between publicly-owned and privately-owned facilities, stating that there can be no discrimination against interstate commerce when favored disposal facilities are publicly-owned.

NSWMA argued in an amicus brief filed with the Supreme Court earlier this year that the appeals court decision is contrary to the U.S. Supreme Court ruling in C & A Carbone, Inc. v. Town of Clarkstown, which found that Clarkstown, New York's flow control law violated the U.S. Constitution by interfering with interstate commerce.

"NSWMA is encouraged the Supreme Court has agreed to review the United Haulers case and, hopefully, will reaffirm that this type of flow control is unconstitutional," said David Biderman, NSWMA's General Counsel. He added, "Oral argument will take place in January 2007 with a decision expected by June 2007." NSWMA intends to file an amicus brief urging the court to overturn the appeals court decision.

Evidence in the United Haulers case reveals the counties' flow control laws forced haulers to pay $86 per ton of waste when other nearby, out-of-state facilities only charged $30 per ton. If the decision is not overturned, businesses, residents, and waste haulers throughout the United States will be forced to pay substantially higher waste disposal costs in locations where local governments reestablish flow control.

NSWMA is the non-profit trade association representing for-profit companies providing solid and medical waste collection, recycling, and disposal services throughout North America.

David Biderman

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