Federal Court Rules County's Flow Control Law Unconstitutional

Date: June 16, 2011

Source: Bansbach Zoghlin P.C.

A Federal Court in upstate New York has ruled that Oswego County's "flow control" law, mandating that all waste generated within the county be taken to a county owned facility is unconstitutionally vague. In its decision in "JWJ Industries Inc. v. Oswego County," the court took issue with the flow control law for authorizing and encouraging arbitrary and discriminatory enforcement and ruled that it was unconstitutional for vagueness as written. Jeffrey Holbrook, owner and operator of the JWJ Transfer Station in Oswego County challenged the law, which was originally approved in October 2008 and made effective July 1, 2009. JWJ saw its business decline by 25 percent after the law took effect.

The county justified the law on the grounds that it would help it meet its goal set by state legislature to develop a self-supporting waste system and to improve its recycling efforts on which it had spent $60 million over the last 25 years. The county was guided in passing the law by the April 2007 decision by the US Supreme Court (United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth.) which ruled that certain flow control laws that designated government-owned and operated facilities in upstate New York were valid under the "dormant" Commerce Clause. The decision narrowed a 1994 Supreme Court decision (C&A Carbone, Inc. v. Town of Clarkstown, New York) in which a flow control law that designated a privately-owned facility was found to be unconstitutional. Following the Court's 1994 decision, several exceptions to the general prohibition against flow control had developed, and were a source of frequent litigation. Most notable among these was the Pike balancing test (as articulated in Pike v. Bruce Church, Inc.), that weighs the benefit of a regulation against any imposition on commerce.

June 16, 2011

Federal Court Strikes County Flow Control Law as Unconstitutional

SYRACUSE, NEW YORK The United States District Court in Syracuse, New York struck down Oswego County's Flow Control Law earlier this week as unconstitutionally vague. This decision means a transfer station in the county will no longer be subject to the county's waste disposal monopoly, and will help a small private company stay in business.

For the past 15 years, Jeffrey Holbrook has operated the JWJ Transfer Station in Oswego County under a permit from the New York State Department of Environmental Conservation ("DEC"). The JWJ Transfer Station accepts construction and demolition waste that is generated both in and out of Oswego County pursuant to the DEC Permit.

On October 13, 2008, the Oswego County legislature enacted the Oswego County Recycling & Solid Waste Local Law. Most of the Solid Waste Law became effective on January 1, 2009. The "Flow Control" provisions of the Solid Waste Law became effective on July 1, 2009.

Plaintiffs filed a lawsuit challenging the Flow Control Law and seeking a temporary restraining order and preliminary injunction on June 26, 2009. The district Court initially granted plaintiffs' request for a temporary restraining order ("TRO") staying enforcement of the Flow Control Law, but later vacated the TRO and denied plaintiffs' application for a preliminary injunction.

The court's June 13, 2011 decision granted plaintiffs' motion for judgment on the pleadings. The Court found that "Scrutiny of the letters and directives from the County and its director of solid waste reveals that not only does the Flow Control Law in question authorize and encourage arbitrary and discriminatory enforcement, such arbitrary enforcement is manifest here." It concluded that "the inadequately drafted Oswego County Flow Control Law is unconstitutional for vagueness as written. The Court also finds that the Flow Control Law is unconstitutional as applied to JWJ, and forerseeably to any other entity that would deem to own and operate a waste management facility in the County, however unlikely this scenario might be under the County's existing waste management penumbra."

JWJ has 67 employees. Although the company has suffered financially from the unconstitutional law, this decision may make it possible for the company to survive. Jeff Holbrook, JWJ's owner and a resident of Oswego County for 47 years, is pleased with the result: "Businesses are leaving this County every day. I'm happy that the Court stopped the County from pushing another one out."


Holbrook is represented by Mindy Zoghlin, Bansbach Zoghlin P.C.

Contact: Mindy Zoghlin, 585-227-2610 or mzoghlin@banszog.com.

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