• Landfill Flow Control is Back - Sometimes
  • August 13, 2007 | Author: Paul C. Jacobson
  • Law Firm: Sands Anderson PC - Durham Office
  • The U.S. Supreme Court held on April 30 in United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, by a 6 to 3 vote, that a local government may constitutionally adopt an ordinance to direct the disposal of all solid waste generated within its borders to a government run landfill. Such “flow control” ordinances have been struck down by the courts since a 1994 U.S. Supreme Court decision that a local flow control ordinance unconstitutionally discriminated against interstate commerce. In United Haulers, however, the Court decided that such an ordinance is constitutional if the waste disposal facilities benefiting from the ordinance are “owned and operated” by a governmental entity. In its analysis, the Court stated: “Disposing of trash has been a traditional government activity for years, and laws that favor the government in such areas – but treat every private business, whether in-state or out-of-state, exactly the same – do not discriminate against interstate commerce for purposes of the Commerce Clause.”

    Localities will still have to consider state law requirements relating to “flow-control” ordinances, and private waste disposal companies may request Congress to pass legislation limiting or removing the ability of local governments to adopt such ordinances. Also, local government entities will need to carefully consider if operations relying on private company involvement in the ownership or operation of landfill or transfer station facilities may not be sufficiently “governmental” in nature to fall under the ruling in the United Haulers case. Nevertheless, this recent ruling provides local government entities new options in solid waste management.

    For more information on the United Haulers case, please contact Paul Jacobson at 919-993-3300 or [email protected]