Friday, November 17, 2006

NAM, NSWMA & NTA Enter Supreme Court "Flow Control" Case

Nov 14: - The National Association of Manufacturers (NAM) joined other business groups in an amicus brief urging the U.S. Supreme Court to overturn a controversial decision by the Second Circuit Court of Appeals which they say could lead to a resumption of local solid waste disposal monopolies – reducing competition and raising prices for consumers. The case, United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority (Case No. 05-1345), was accepted by the Supreme Court on September 26, 2006, and is scheduled for oral argument on January 8, 2007 [See WIMS 11/14/06].

According to NAM's release, prior to 1994, many local government entities sought to control the flow and disposal of solid waste within their jurisdictions, denying trash haulers access to interstate competition, thus requiring them to pay the going local rates which were often set arbitrarily high. Trash haulers sought relief from this monopoly practice in the courts. In 1994 in C&A Carbone v. Clarkstown the Supreme Court ruled that such restrictive practices are a violation of the Commerce Clause of the Constitution which forbids state and local governments to interfere with interstate commerce.

The amicus brief filed by the NAM, the National Solid Wastes Management Association (NSWMA) and the American Trucking Associations (ATA) contends that the pre-Carbone monopolization of solid waste disposal led to predictable escalation of prices “as protected facilities set their rates without fear of competition. Moreover, a snowball effect was rapidly developing, as other localities were forced to respond by enacting their own flow control laws to protect local facilities which previously had depended on out-of-state waste for their financial viability.”

The groups said that if the Supreme Court does not overrule United Haulers, the interstate market in solid waste and recyclables will be seriously disrupted. Their brief indicates that, “Over 60 percent of the nation’s waste facilities currently are owned by public entities. The Second Circuit’s decision, by providing a blueprint for governments to evade Carbone, virtually ensures that flow control laws promptly will be re-enacted with respect to many of those facilities, thereby locking millions of tons of waste out of the interstate market.”

Access a NAM release (click here). Access the complete 35-page brief (click here). Access the NSWMA flow control litigation website for background information on this and other flow control cases (click here). [*Solid]