By Susan Jarvis
April 2, 2007

Scott Duboff, attorney for Wright and Talisman, P.C., in a March 14 teleconference, briefed Municipal Waste Management Association (MWMA) members on the environmental issues that have been argued before the Supreme Court these past few months including the topic areas of flow control, global warming, and third party liability.

The main focus of the call was on the issue of flow control and the United Haulers vs. Oneida-Herkimer case. In 1994, the U.S. Supreme Court struck down a flow control ordinance in Clarkstown (NY) that obliged haulers to bring their waste to the Clarkstown Recycling Inc. landfill. The courts upheld the ordinance until the 2nd Court of Appeals when the U.S. Supreme court ruled the ordinance violated the Commerce clause by ruling that garbage was considered commerce. Most state and local flow control ordinances were then overturned which paved the way for increased privatization.

The courts recently disagreed on two new cases resulting in their agreement to hear the United Haulers Association Inc. v. Oneida-Herkimer Solid Waste Management Authority. Previously, in the second circuit court decision, the judge distinguished between publicly owned and privately owned facilities. The judge ruled that there can be no discrimination against out of state waste disposal centers. The 6th Circuit Court, however, did not distinguish between publicly and privately owned facilities. At issue was a question of whether flow control ordinances “impose a burden on interstate commerce that is qualitatively or quantifiably different from that imposed on interstate commerce,” said DuBoff.

The themes of briefs, including amici curaie briefs, from the waste haulers was “local governments are in the business of selling waste disposal services to private haulers and use flow control to shield their market activities from interstate competition.” The counterpoint is that in implementing their core governmental activities for solid waste management, local governments are not engaging in market activities. Duboff explained that discrimination between public and private haulers in relation to the commerce clause is centered on communities that rely on flow control to provide considerably more comprehensive services (recycling, household hazardous waste disposal) than private haulers. A decision is expected soon.

Duboff also briefed listeners on Commonwealth of Massachusetts v. EPA, a global warming case. At issues is whether the Environmental Protection Agency (EPA) has the authority to regulate greenhouse gases (GHG) under section 202(a) (1) of the Clean Air Act. Section 202 (a) (1) directs EPA to prescribe standards to control motor vehicle emissions. Issues in this include, assuming that regulating GHG is part of EPA’s authority, was its decision in 2003 not to regulate GHG reasonable.

Also on the court's docket is the Atlantic Research v. EPA case, which addresses the clean-up of environmentally-contaminated properties. Currently, a potentially responsible party (PRP) that voluntary cleans up a contaminated site without being sued by the government can not seek contribution from other parties. Contribution is only available to sites where a clean-up was ordered. There is a concern by the Conference of Mayors that this might have a chilling effect on the number of brownfield sites that are currently being cleaned up.

The Conference of Mayors has signed onto amicus briefs for all three Supreme Court cases.

The MWMA is the environmental affiliate of The U.S. Conference of Mayors. For more information, visit the website www.usmayors.org/mwma.