Section of Environment, Energy, and Resources
Waste and Resource Recovery Committee
U.S. Supreme Court Decision
The U.S. Supreme Court decision in the United Haulers flow control case was issued on April 30th, 2007. The Court, in a 6-3 Opinion, held that two New York solid waste flow control laws did not violate the dormant commerce clause of the U.S. Constitution. The Court adopted a “public-private” distinction between disposal facilities which narrowed the scope of the Court’s ruling in C&A Carbone v. Town of Clarkstown, 511 U.S. 383 (1994).
U.S. Supreme Court Agrees to Hear New York Flow Control Case
The U.S. Supreme Court has agreed to review a federal appeals court decision involving the recurring issue of “flow control” – laws that force solid waste collectors to dispose waste at designated facilities. The Supreme Court’s decision is expected to provide important guidance to local governments, haulers and others concerning a local government’s authority under the dormant Commerce Clause to enforce flow control laws.
In 1994, the U.S. Supreme Court ruled in C&A Carbone v. Town of Clarkstown, 511 U.S. 383 (1994) that Clarkstown, New York’s flow control law, which required all solid waste originating in the town be disposed at a local transfer station, violated the Commerce Clause. The Court concluded that the town law discriminated against interstate commerce because it prohibited out-of-state disposal facilities from competing for that waste.
The following year, in upstate New York, a group of solid waste haulers filed a lawsuit against the Oneida-Herkimer Solid Waste Management Authority, asserting that the Authority’s flow control laws were illegal under Carbone. While the federal district court initially ruled in favor of the haulers, the Second Circuit reversed, ruling that because the designated disposal facilities in Oneida-Herkimer were government-owned, the Carbone decision did not apply. Instead, the appeals court declared that such flow control laws are considered under a more lenient balancing test. United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Mgmt Authority, 261 F.3d 245 (2d Cir. 2001). The court issued a second decision in the case in early 2006. See 438 F.3d 150 (2d Cir. 2006).
Local governments in other parts of the country, eager to engage in flow control, began enacting similar laws. Other courts have issued decisions specifically disagreeing with the Second Circuit’s analysis in United Haulers. See, e.g., National Solid Wastes Mgmt. Assoc. v. Daviess County, 434 F.3d 898 (6 th Cir. 2006); National Solid Waste Mgmt. Assoc. v. Pine Belt Regional Solid Waste Mgmt. Auth., 261 F. Supp. 2d 644 (S.D. Miss. 2003), reversed on other grounds, 389 F.3d 491 (5 th Cir. 2004).
In September 2006, the U.S. Supreme Court granted certiorari in the United Haulers case. The Court is expected to resolve the conflict over whether publicly-owned disposal facilities that are the beneficiaries of flow control are reviewed under a lesser legal standard. Oral argument in the case will take place in January 2007, with a decision expected by June 2007.
For additional information, please contact David Biderman, NSWMA General Counsel, at (202) 364-3743 or davidb@envasns.org.
The Waste Management Committee Web site will be periodically posting briefs filed in this case.
Case at a Glance: What Is the Proper Standard for Reviewing Flow-Control Restrictions on Solid Waste?
Posted in Preview from the ABA Division for Public Education
RCRA Regulation of Wastes from the Production, Use, and Disposal of Nanomaterials
The American Bar Association (ABA) Section of Environment, Energy, and Resources (SEER) is pleased to make available the results of a comprehensive review of the core federal environmental statutes to assess the suitability of each to address issues pertinent to human health and the environment arising from applications of nanotechnology. Earlier this year, the Section offered to brief representatives of the U.S. Environmental Protection Agency (EPA) Office of General Counsel (OGC) and pertinent other EPA representatives in EPA program offices on legal and regulatory issues arising in connection with the application of existing statutory and regulatory authorities to engineered nanoscale materials. Specifically, the Section offered to prepare detailed briefing documents on each of the six core environmental statutes, and a briefing document on innovative governance mechanisms, that identify key legal and regulatory issues EPA can be expected to encounter as it considers how best to address issues likely to arise in connection with nanotechnology.
Section Nanotechnology Project Home Page
RCRA Regulation of Wastes from the Production, Use, and Disposal of Nanomaterials
About the Committee
The Waste and Resource Recovery Committee (formerly Waste Management Committee) is broadening its focus from the traditional “cradle to grave” management of solid and hazardous waste to encompass a more sustainable view of waste as a resource through recycling, beneficial use, reduction, and conservation. The W&RR Committee will track and communicate statutory, regulatory, and judicial developments in emerging areas such as new definitions of solid and hazardous waste, recycling, permitting, flow control, waste bans, waste conversion technologies, and environmental justice. We will encourage member-to-member dialogue through the use of traditional and innovative means to exchange ideas, share success stories, and identify opportunities for meaningful contributions to the field. Our members include a rich mixture of lawyers in private practice, in-house counsel, trade association counsel, non-profit lawyers, and government attorneys.
Newsletter Publications
Waste and Resource Recovery Committee Newsletter
Provides timely and substantive articles regarding solid and hazardous waste issues, including interstate movement of solid wastes, flow control, environmental justice, industry consolidation, new definitions of solid and hazardous wastes, recycling, permitting, corrective action, and similar issues. View our latest newsletter.
Waste and Resource Recovery Navigation
Leadership
Co-Chairs:
Thomas Michael Bruen
Vice Chairs:
Committee Newsletters/Publications
Michael W. McLaughlin
Membership
Thomas Michael Bruen
Programs
Deborah K. Tellier
Public Service
Heidi C. Price
Technology
Arthur H. Siegel
The Year in Review
Dennis J. Conniff
