Supreme Court OKs flow control

By Elizabeth McGowan

April 30 -- In yet another "green" decision, the Supreme Court let stand measures enacted by two counties in Upstate New York attempting to control the type and volume of trash rolling into their publicly owned landfills.

Chief Justice John Roberts Jr. issued the majority opinion April 30, stating that flow control ordinances do not discriminate against interstate commerce. The 6-3 vote in United Haulers Association Inc. v. Oneida-Herkimer Solid Waste Management Authority revealed a somewhat strange alignment of justices. Justices Antonin Scalia and Clarence Thomas -- who both issued separate opinions -- sided with justices Roberts, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

Justice Samuel Alito Jr., a recent appointee usually labeled as conservative, wrote the dissenting opinion. Oddly enough, he was joined by Justice Anthony Kennedy, considered a swing vote in many high-profile cases, and Justice John Paul Stevens, the oldest court member, usually profiled as a liberal.

One of the most unusual parts of the Jan. 8, hour-long oral argument took place when Chief Justice Roberts´ bookend justices -- Stevens to his right and Scalia to his left -- followed the same line of questioning concerning public services and free enterprise.

At issue was whether the two counties were legally able to enforce ordinances requiring contracted trash haulers to use authority-regulated waste disposal sites. The authority charges a higher-than-average tipping fee per ton of nonrecyclable trash to cover the cost of handling composting, recycling and hazardous waste disposal.

At the crux of the case is what´s called the dormant Commerce Clause of the U.S. Constitution, and whether or not the two counties -- Oneida and Herkimer -- were violating it and limiting free trade.

In another N.Y. flow control case in 1994, C & A Carbone Inc. v. Town of Clarkstown, the high court justices voted 6-3 that the local government violated the interstate commerce clause. The key difference between this case and Carbone is that Clarkstown´s facility was built and operated by a private company.

This high court decision upholds a February 2006 ruling in favor of the authority by the 2nd Circuit U.S. Court of Appeals.

United Haulers Association Inc. et al. v. Oneida-Herkimer Solid Waste Management Authority et al. is case No. 05-1345.