Prior to 2007, Federal Courts routinely struck “flow control ordinances,” ordinances which mandate that all waste within a particular county be disposed of at a specific landfill or other waste disposal facility, as violative of the Commerce Clause of the United States Constitution.  This was based on the fact that such ordinances prohibit competition and discriminate against interstate commerce.

In 2006, the Second Circuit Court of Appeals issued its decision in United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, 438 F.3d 150 (2d Cir. 2006).  The Court held that where a flow control ordinance benefits a public – rather than private – facility, there is no automatic discrimination against interstate commerce, but a more lenient standard is used for review.            This decision was appealed and, on April 30, 2007, the United States Supreme Court issued its decision representing a fundamental change in flow control and waste law.

In United Haulers Association, the Supreme Court agreed with the Second Circuit that a flow control provision benefiting a public facility, a facility “owned and operated by a state-created public benefit corporation” is reviewed under the balancing test outlined in Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).  127 S. Ct. 1786, 1790 (2007). Under Pike, such regulation “will be upheld unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.”  397 U.S. at 142.  The United Haulers Supreme Court found the ordinance valid under Pike, because the ordinance enabled the County to accept recyclable goods and hazardous waste without charge and increased the County’s ability to enforce recycling laws, benefits to the public that outweighed the harms of the burden on interstate commerce.  127 S. Ct. at 1798. 

The impact of this decision is that it will be much easier for Pennsylvania counties to enact or defend flow control ordinances requiring all waste generated in the county to be disposed of at a specified public landfill.  A county will still have to demonstrate that the ordinance is necessary to achieve some public benefit such as better recycling programs, but the standard applied in reviewing these ordinances is much less stringent.  The Court issued this ruling despite its acknowledgement that a huge impact is more expensive trash removal.  The Court acknowledged that “the most palpable harm imposed by the ordinances [is] more expensive trash removal. . . .”  127 S. Ct. at 1797.  The Court admitted that this cost will be borne by the private citizens paying for trash removal, suggesting that it is acceptable because they are “the very people who voted for the laws.”  Id.

In light of the Court’s ruling and great change in waste disposal and flow control law, it is imperative that individuals be aware of flow control and its impact in his or her county or municipality and consider those issues and impact on trash removal and disposal costs.  Because this holding may result in significant increases in waste disposal costs passed to consumers, flow control will likely be an issue for voters in upcoming elections.