134134 D Of3/14/2013
13-1134
Couia (Iv . -CV TIT
%A.- 108 CAD, LLC and EXPRESS L SERVICE, LLC Plaintiffs-Appellants,
V.
COUNTY OF HORRY an& e HORRY COUNTY SOLID WASTE AUTHC:"....:TY, INC. Defindanis -Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
BPaEF /4/Viri CURIAE of the DELAWARE COUNTY SOLID WASTE AUTHORITY, ECOMAINE, CITY and COUNTY of HONOLULU, INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION, LANCASTER COUNTY SOLID WASTE MANAGEMENT AUTHORITY, MARION COUNTY, OREGON,
MONTGOMERY COUNTY, OHIO, NATIONAL ASSOCIATION OF COUNTIES, SOLID WASTE ASSOCIATION OF NORTH AMERICA, SOLID WASTE AUTHORITY of CENTRAL
OHIO, SOLID WASTE AUTHORITY of PALM BEACH COUNTY, SOLID WASTE DISPOSAL AUTHORITY of the CITY of HUNTSVILLE, SOUTH CAROLINA ASSOCIATION of
COUNTIES, PINE BELT REGIONAL SOLID WASTE MANAGEMENT AUTHORITY, SPOKANE REGIONAL SOLID WASTE SYSTEM, WASATCH INTEGRATED WASTE
MANAGEMENT DISTRICT and the YORK COUNTY SOLID WASTE and REFUSE AUTHORITY
IN SUPPORT OF DEFENDAN17S-APPELLEES and
AFFIRMANCE OF THE ORDER ON APPEAL
June 14, 2013
Scott M. DuBoff Jeffrey C. Young Garvey Schubert Barer 1000 Potomac Street, NW Fifth Floor Washington, DC 20005 (202) 965-7880 Counsel for Aniici Curiae
Additional Counsel Listed on Inside Cover
Appeal: 134134 Doc: 33
Filed: 06/14/2013 Pg: 2 of 35
Michael 'EX. Gitlin 230 North Monroe Street Media, PA 19063
Counsel fir Delaware County Solid Waste Authority
Nicholas Nadzo Mark Bower Jensen Baird Gardner & Henry Ten Free Street P.O. Box 4510 Portland, ME 04112
Counsel for ecomaine
Dana Viola Deputy Corporation Counsel Department of Corporation Counsel City and County of Honolulu 530 South King Street, Room 110 Honolulu, Hawaii 96813
Counsel for the City and County of Honolulu
Alex Henderson Hartman Underhill & Brubaker 221 East Chestnut Street Lancaster, PA 17602
Counsel for Lancaster County Solid Waste Management Authority
Mathias H. J:kck, Jr. Montgomery County, Ohio Prosecuting Attorney 451 West Third Street P.O. Box 972 Daytoa, OH 45422
Counsel for Montgomery County, Ohio
Michael Belarmino Associate General Counsel National Association of Counties 25 Massachusetts Avenue, NW Washington, DC 20001
Counsel for National Association of Counties
Moran M. Pope, 111 Pope & Pope, P.A. 110 South 40th Avenue Suite 10 (39402) Post Office Box 17527 Hattiesburg, MS 39404
Counsel for Pine Belt Regional Solid Waste Management Authority
Barry Shanoff 401 E. Jefferson Street, Suite 206 Rockville, MD 20850
Counsel for Solid Waste Association of North America
Scott Norris
Michael C. Mentel Assistant Legal Counsel
Chief Legal Officer Marion County, Oregon
Solid Waste Authority of Central Ohio 555 Court Street, NE
4239 London Groveport Road P.O. Box 14500
Grove City, OH 43123 Salem, OR 97309
Counsel for Solid Waste Counsel for Marion Authority of Central Ohio
County, Oregon
Appeal: 134134 DoG•
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M. Clifton Scott Jr. Senior Staff Attorney
South Carolina Assoc. of Counties 1919 Thurmond Mall Columbia, SC 29201
Counsel for South Carolina Association of Counties
Elizabeth Schoedel Assistant City Attorney
City of Spokane 808 West Spokane Falls Blvd. Spokane, WA 99201
Counsel for Spokane Regional Solid Waste System
Charles H, Younger P..0. Box 2795 Huntsville, AL 35804
Counsel/Or Solid Waste Disposal Authority of the City of Huntsville, Alabama
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tULS 26. NSCLOSURF STATEMENT
Several of the amid are non-profit corporations, none of which have issued
shares or stock that is owned by any other entity. No publicly held corporation has a
direct financial interest, as described in Local Rule 26.1(a)(2)(B), by virtue of a
relationship to any of the amid.
. DuBoff cott DuBoff
.:, 13-1134 Doc: 33
Pg:
RULE 26.1 DISCLOSURE STATEMENT i
TABLE OF AUTHORITIES
STATEMENT OF INTEREST OF AMICI 3
SUMMARY OF 7
A. United Haulers Coatrols This Case 9
13. Waste Flow Control to a Public Facility Is Not Facial Discrimination or an Undue But den on Commerce Because of the Uniquely Public Functions 12
1. Solid Waste Management is a "Typical and Traditional Concern of Local Government," Fundamentally Distinct from Entrepreneurial, For-Profit Activity 12
2 Essential Differences Between Appellants' Collection- Disposal Businesses and Horry County's Integrated Waste Management Services Further Preclude a Finding of Discrimination Under the Comixm 15
Appeal: 134134 Doe; Filed: 06114/20i 3 Pg: 6 of 35
!r g. ohy CASES Page
Brotherhood of Locomotive Firemen & Enginemen V. Chicago, Rock Island & Pacific Railroad Co., 393 U.S. 129 (1968) ..... .14
& A Carbone, Inc, v. Town of Clarkstown, 511 U.S. 383 (1994) 7
California Reduction Co. v. Sanitary Reduction Works, 199 U.S.
Gardner v. Michigan, 199 U.S. 325 (1905) 9
General Motors Corp. v. Tracy, 519 U.S. 278 12
Oregon Waste Systems, Inc. v. Department of Environmental Quality, 511 U.S. 93 4, 20
Pike v. Bruce Church, inc., 397 U.S. 137 8
Sandlands C&D, LLC v. County of Harry, 716 S.E.2d 280, 285
United Haulers As 'n, Inc. v, Oneida .Herkimer Solid Waste Mgmt, Authority, 550 U.S. 330
FEDERAL STATUTES
Resource Conservation and Recovery Act
42 U.S.C. § 6901(a)(4) ypqsv.. 1,,,i 0 ”11 . 8 V ,IIIII,.‘". .qVibirtiV.”9 4.1rYggItaan 2 9it.P.VVIF•i97.5,/tA4.41Vp,•.4at..411,,,fr 3
42 U.S.C. § 6902(a)(1)•••• ■ ••10"04”7”,o9ifbyp¢“V.V.P14,74,08.F.faapsaaa.80,7%”"*U“t.4440“1.1 ■ 40.4”990.1.reat.,4
42 U.S.C. § 6941 4
42 U.S.C. § 6942
42 U.S.C. § 6943 4
FEDF-AL RIX 3 and REGULAJJJY
STATE CONSTITUTII
TraS
Wash. COnSt Are. § 11 .......i.o.“.“. 8 . 08,,,, .." 0 "DBOVBsitqA".."V”."4. 4 11 ”0".“0"tift.“1,11116tiaqt.3
Ala. Code
paz"Itteazetx,ese sp.": 3
Doc: Pq:
Me. Rev. Stat. Ann. Title 38 § 1305.1
Ohio Rev, Code Ann. § 3734•52(A) and (B) • 4 • 9 ■1 • 06 0,1 1,1 •4 41•• ■ ••• ■ 1111, 110 ■ •• ■ 01.9",/,1 11•11 ■ ••••••• ■ •••• ■■ ••1,441,14 ■ •••••• ■ • ■ ••,14••• ■ •••14
§ § 3734.55
Or. Rev. Stat. § 459.065........................................................................................ .. ..... ..............3
53 Pa. Cons. Stat. § 4000.303(a) .......................................................... . ............................................3 § 3
Utah Code Ann.
Wash. Rev. Code
§
MISCELLANEOUS
Joint Appendix, United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330 (2007)
Public Meetings on Municipal Solid Waste Flow Control, 58 Fed. Reg. 37,477 (July 12,
U. S. Environmental Protection A gency, . Municirfai Solid Waste Generation, Recycling, and Disposal in United States: 2010 Facts and Figures 4
U.S. Environmental Protection Agency, Report to Congress on Flow Contr©l and Municipal Solid Waste, EPA 530-R-95-008 (Mar. 12, 13, 14
.11,en9•0•41,1•Sv.sarnen ■aa,491.•94.8•1 44111 ..“."0,1080.44a6.06.,031..9iailt*Ve"X`79”9* ...15
Doe:
interstate Waste and Flow Control: Hearing On S. 1194 And S. 2034 &lbre The Senate Comm. On Env't And Pub. Works, 107th ng, 995 (2002) (Statement of Mark Lennon and Patrick Pinkson- .Burki rallyin g and Community Assistance Section, W Division, New Hampshire Department Pnvirom oental Services).
U.S. Environmental Protection Agency, The Solid Waste Dilemma: An Agenda for Action, EPA/530-SW-8-019 (Feb.
Facing America's Trash: What Next For Municipal Solid Waste? Office of Technology Assessment, 101st Congress
3
U.S. Environmental Protection Agency, Variable Rates in Solid Waste: Handbook For Solid Waste Officials, EPA1530-SW-90-084A, Vol. 14
iv
i3-1134 c - 33 Fik.u;J:1---i12013 Pg: 9 o 35
Amici curiae Delaware County Solid Waste Authority, et al., submit this brief
in support of Appellees County of Horry, South Carolina, and the Horry County
Solid Waste Authority, Inc, (referred to collectively as "Horry County"). Arnie/
include city and county governments, special authorities, and related associations
responsible for (or whose members are responsible for) municipal solid waste
management in their communities and dedicated to implementing federal and state
policies that encourage "integrated waste management" (brief descriptions of each of
the amici are in the Appendix to this brief). 2 A critical tool for achieving integrated
waste management is "flow control" authority, that is, local ordinances or
regulations that designate the recycling, waste processing, and disposal facilities for
serving a given community. The public benefits of flow control ordinances go well
beyond simply determining where waste is disposed, or who gets to process it.
Appellants and Appellees have each consented to the filing of this brief No party's counsel authored this brief in whole or in part and no party, its counsel, or other person with the exception of the amici curiae, their members or their counsel contributed money that was intended to fund preparing or submitting this brief.
2 The term "municipal solid waste" (or "MSW") means "residential and commercial solid wastes generated within a community." 40 C,F,R. § 240.101(q). "'Integrated waste management' refers to the complementary use of a variety of waste management practices," including reuse of products, recycling of materials, waste-to-energy combustion, and landfilling "to safely and effectively handle the municipal solid waste stream with the least adverse impact on human health and the environment." The Solid Waste Dilemma: An Agenda for Action, U.S. Environmental. Protection Agency, EPA/530-SW-8-019, at 16 (Feb. 1989) (cited below as "Agenda for Action").
Amy, •l: 2.34
Doe: 33 Filed: 06/14/2013 Pg: 10 of 5
Instead, as amici show in this brief, flow control ordinances help communities
achieve in an environmentally-responsible manner the wide array of objectives that
are key components of integrated waste mallau,olient.
In United Haulers Ass 'n, Inc. v. Oneida-Herkimer Solid Waste ltigInt
Authority, 550 U.S. 330 (2007), the Supreme Court ruled that a flow control
ordinance that benefits a public facility while treating all private enterprise (local
and non-local) alike does not violate the Commerce Clause. The flow control
ordinances upheld by the Supreme Court in United Haulers are legally
indistinguishable from the Horry County flow control ordinance, Ordinance 02-09,
at issue in this appeal. In that regard, United Haulers concluded that local
government may choose to favor public facilities without running afoul of the
Commerce Clause, and central to the Supreme Court's reasoning was its recognition
that local government carries the unique "responsibility of protecting the health,
safety, and welfare of its citizens" and that "[wlaste disposal is both typically and
traditionally a local government function." Id. at 342, 344. That was the context for
the Court's closely related conclusion that a flow control ordinance favoring a public
facility used in implementing governmental obligations does not raise the economic
protectionism concerns that invite close scrutiny under the Commerce Clause.
As already noted, Horry County's flow control ordinance is essentially
identical to the ordinances upheld in United Haulers, and the district court properly
2
Appeal: 13-1134 Doc 33 06114/2.0_ Pg: 1.1 of 35
dismissed Appellants' chalkne to the Harry County ordinance. The district court
carefully applied the analytical framework set forth in United Haulers, including
proper deference to the legislative ju daent of Harry County in the performance of
its public duties, and amici respectfully urge this Court to affirm the district court's
order.
0
I
Amici's interest in this case arises from the ever increasing volume of
municipal solid waste generated in the United States, for which primary
responsibility falls on the shoulders of local government. In that regard, the
Supreme Court has long recognized that authority over solid waste management is
inherent in the police power of local government. Cal. Reduction Co v. Sanitary
Reduction Works, 199 U.S. 306 (1905); Gardner v. Mich., 199 U.S. 325 (1905).
Congress too has expressly acknowledged the leadership role played by local
government in managing municipal solid waste. The Resource Conservation and
Recovery Act (RCRA) codifies recognition of that police power authority, see 42
U.S.C. § 6901(a)(4) ("the collection and disposal of solid wastes should continue to
be primarily the function of State, regional, and local agencies"), as do the laws of
' -1134 Doc: 33 Filed: 06/14/2013 Pq: 12
essentially every state. 3 The volume of municipal waste generated in the United
States has increased by nearly 65 percent since 1980, exceeding 250 million tons in
2010, Municipal Solid Waste in the United States: 2010 Facts and Figures, U.S.
EPA (available at h a ov/e aste/nonhaz/munic al/ s 99.htm).
Given the broad range of public health, environmental, and economic issues
involved, municipal solid waste "present[s] these communities with serious
financial, management, intergovernmental, and technical problems." See 42 U.S.C.
§ 6901(a)(3); see also Or. Waste Sys. v. Dep't of Envtl Quality, 511 U.S. 93, 109
See, e.g., Or. Rev. Stat, § 459.065 (broad authority conferred on local government for solid waste management, which is "a matter of statewide concern"); 53 Pa. Cons. Stat. §§ 4000.303(a), 4000.304(a) (Pennsylvania municipalities have primary responsibility for processing and disposal of locally generated municipal waste); Me. Rev. Stat. Ann. Title 38, § 1305.1 ("Each municipality shall provide [for] solid waste disposal services for domestic and commercial solid waste generated within the municipality"); Ala. Code § 22-27.48 (counties and municipalities responsible for assuring proper management of solid waste); Utah Code Ann. § 19-6-503 (all counties, special service districts and municipalities must provide adequate capacity for solid waste generated within their jurisdiction). See also Wash. Const. art. XI, § 11 (Washington municipalities granted sanitation authority equivalent to authority of the state legislature).
4
/Appeal: 13-1134 Dor: 33 Pg: 13 of 35
(1994) (describing municipal waste management as a "vexing national problem")
(Rehnquist, CI, dissenting). 4
These factors represent a reality of solid waste management which may be
referred to as "The Second Law of Garbage" — absent government intervention,
management of municipal solid waste will generally default to the lowest cost (in
terms of short-term costs) and frequently less environmentally sound alternatives.
See Facing America's Trash: What Next For Municipal Solid Waste?, Office of
Technology Assessment 101st Cong., at 275 (Oct. 1989); see also Agenda for Action
at 8 (describing the "First Law of Garbage" "Everybody wants us to pick it up,
4 Consistent with those concerns, a principal RCRA objective is detailed state and local solid waste management planning, including emphasis on assuring capacity adequate to meet the affected communities' "present and reasonably anticipated future needs." 42 U.S.C. § 6941; see also id, §§ 6902(a)(1), 6942 and 6943. EPA has noted RCRA's "great e):'0,oha.sis" on state, regional and local planning, which, among other things, "must provide for adequate recycling and disposal capacity and must address [waste management] facility planning and development." Report to Congress on Flow Control and Municipal Solid Waste, U.S. EPA, EPA 530-R-95-008, at. 1-2 (Mar. 1995), available at http://www.epa.gov/epaoswer/non-hwirnuncpliflowarl.htm (cited below as "Report to Congress on Flow Control"). See also, e.g., Wash. Rev, Code §§ 70.95.080 and 70.95.090(3) (each county to prepare a comprehensive solid waste management plan including "a program for the orderly development of solid waste handling facilities in a manner consistent with plans for the entire county" and "a plan for financing both capital costs and operational expenditures"); Ohio Rev. Code §§ 3734.52(A) and (B), 3734.55 and 3734.53(A) (each county required to participate in a solid waste district for the purpose, among other things, of preparing a solid waste management plan providing for proper management of municipal solid waste and certifying availability of sufficient solid waste management capacity to serve county residents for a ten-year minimum period).
5
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and nobody wants us to put it down"). Flow control changes that dynamic by
facilitating implementation of the environmentally-preferable waste management
infrastructure alternatives selected by the affected community. See Public Meetings
on Municipal Solid Waste Flow Control, 58 Fee 37,477, 37,478 (July 12,
1993) (referring to the more active role of state and local government in integrated
waste management planning, EPA describes flow control as a "key tool" for
implementing such plans). See also Agenda for Action at 16-21 (describing
hierarchy of waste management methods, which are, in order of priority, waste
reduction and minimization, recycling, energy recovery, and sanitary landfill
disposal).
This is the context in which Horry County and the atnici (or the members of
the association amid) — as well as many other local governments — have turned to
flow control to effectuate their waste management decisions, including selection of
the waste management programs and infrastructure best suited for their
communities. Such environmentally proactive waste management is quite expensive
and often very difficult to develop and operate without use of flow control, which
facilitates implementation of the affected communities' determinations regarding the
waste management programs and infrastructure best suited for their needs and
circumstances. While the community's choices may self-impose more short-term
expense, flow control is a highly cost effective and efficient means for the
6
13-1134 Doc: 33 Filed: 06/14/20:13 Pc. : 15 of
community to counteract the attraction of the lower short-term costs of
environmentally less desirable alternatives. In short, like Horry County and scores
of other local governments, amici (or their members) have primary responsibility for
municipal solid waste management in their communities, and flow control is a
fundamentally important tool in meeting that core governmental responsibility for
protection of public health and the environment.
T
The district court correctly rccognizcsi that ase is controlled by the
Supreme Court's decision regarding analogous flow control ordinances in United
Haulers. First and foremost, the district court recognized that Horry County
Ordinance 02-09 benefits a clearly public entity, the Horry County Solid Waste
Authority, in performing one of the most fundamental and traditional roles of local
government — solid waste management. On appeal, Appellants do not dispute this
critical fact. Second, the district court recognized that Horry County's flow control
ordinance draws no distinction favoring local private interests over other private
interests. In United Haulers, the Supreme Court instructed that flow control
ordinances meeting these criteria do not offend the Commerce Clause, either as
facial discrimination subject to per se invalidity, or as an undue burden on interstate
commerce.
7
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The district court's order is fully consonant with the public policy
considerations and factual context that underlie .t.',Fo'eed Haulers. Central to the
Supreme Court's reasoning was the fact that "States and municipalities are not
private businesses — far from it," and instead are " ,;,=]cti with the responsibility of
protecting the health, safety, and welfare of its ns." 550 U.S. at 342. While
Appellants' entrepreneurial activity is narrowly confined to waste collection and
disposal, Horry County and other local governments shoulder a much broader array
of public responsibilities associated with sustainable management of municipal solid
waste under an integrated waste management approach. For that reason, when a
local government decides, through the political process, to favor a public entity
through a flow control ordinance, while treating all private entities alike, it does not
raise the private marketplace protectionism concerns that underlie the Supreme
Court's dormant Commerce Clause jurisprudence. In short, the district court
properly rejected Appellants' "invitationn to rigorously scrutinize economic
legislation passed under the auspices of the police power." Id. at 345. The district
court's ruling was correct and should be upheld.
8
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11.114JENT
The Ditailet Court Correctly Applied United Haulers in Uphorithig Horry County's Flow Control Or, 1mtAce
A. United Hauler- Controls This Case
Horry County's Ordinance 02-09, Joint Appendix ("J.A,") 53-61,
materially indistinguishable from the pair of flow control ordinances upheld in
United Haulers, and the district court was correct to apply the same analysis and
reach the same result. Horry County's flow control ordinance, like the
ordinances at issue in United Haulers, requires disposal of solid waste at a
publicly-owned facility — that is, a landfill owned by the Horry County Solid
Waste Authority or a publicly-owned disposal facility "designated" by the Solid
Waste Authority. This benefit to a public facility is what distinguishes Horry
County's flow control ordinance and the United Haulers ruling from the
Supreme Court's earlier decision in C&A Carbone, Inc. v. Town of Clarkstown,
511 U.S. 383 (1994), where the designated facility (a waste transfer station) was
privately owned and operated. Moreover, while Ordinance 02-09 may favor a
public facility (i.e., the Horry County Solid Waste Authority) over all private
entites, including the Appellants, it does not favor any private entity over another
private entity. In other words, Horry County's rules governing waste collection
and disposal are exactly the same for all private entities without regard to their
location.
9
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Appellants do not dispute (on appeal) that the Horry County Solid Waste
Authority is a public entity, or that it is the beneficiary of the County's flow
control ordinance. That said, Appellants fail to acknowledge the consequences
of their concession. More specifically, under Lind Haulers there is no facial
discrimination subject to per se Commerce Clause invalidity when the flow
control measure at issue favors a public facility whc treating all private
enterprises the same. 550 U.S. at 345 ("We hold that the Counties' flow control
ordinances, which treat in-state private business interests exactly the same as
out-of-state ones, do not 'discriminate against interstate commerce' for purposes
of the dormant Commerce Clause."). Thus, Appellants are simply mistaken
when they assert that the district court in this case "failed" to determine whether
Ordinance 02-09 was facially discriminatory. See Appellants' Br. at 10-15. To
the contrary, the district court followed the exact same analysis set forth in
United Haulers in determining that Ordinance 02-09 was not facially
discriminatory inasmuch as the only entity it favored was a public facility, to the
exclusion of all private entities. The scrutiny that applies when a state or local
law facially discriminates against interstate commerce is not warranted in this
case because, as the Supreme Court emphasized, "it does not make sense to
regard laws favoring local government and laws favoring private industry with
equal skepticism," since laws favoring local government "may be directed
l 0
- 13-11..34 Doc: 33 Piled: 06; ;.4[2013
0
toward any number of legitimate goals unrelated to protectionism." United
Haulers, 550 U.S. at 343.
Having correctly concluded that Horry County's flow control ordinance
"benefit[s] a clearly public facility, while tt%,-aj5;!, all private companies exactly
the same," id. at 342, the district court analyzed Ordinance 02-09 under the test
set forth in Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). See District
Court Order, J.A. 820-822, it ibund that in this case, as was true for the
materially identical ordinances in United Haulers, "the burden imposed on
[interstate] commerce is [not] clearly excessive in relation to the putative local
benefits." Pike, 397 U.S. at 142.
On this point as well Appellants err in their reading of United Haulers.
Appellants claim that, in applying the Pike test, "revenue generation is not a
local interest that can justify discrimination against interstate commerce,"
quoting pre-United Haulers precedent. See Appellants' Br. at 16. But
Appellants simply ignore the Supreme Court's clear ruling on this very point in
United Haulers, which completely nullifies Appellants' contrary contention:
"While 'revenue generation is not a local interest that can justify discrimination
against interstate commerce,' we think it is a cognizable benefit fir purposes of
the Pike test." United Haulers, 550 U.S. at 346 (emphasis added and internal
citation omitted). The district court applied this same reasoning when it
11
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concluded that any burden Ordinance 02-09 may pose for interstate commerce is
not clearly excessive in relation to the ordinance's considerable local benefits.
District Court Order, J.A. 820-822. The district court recognized this case for
what it is - a direct application of United Haulers, Appellants' attempts to re-
argue or simply ignore bindir -uprerne Court precedent must fail.
13. Waste Flow Control to a Publk Fad 1, Not Facial DisethVAM.i0t1 11 a): Tin d . dtnJ n Comrnerc use of the Uniqu6y t"ljbliC FUliC643. SU'Vld
The district court ruling in this case not only applied the correct legal doctrine
from United Haulers, it also gave due regard to the same factual considerations that
drove the Supreme Court's analysis.
1. Solid Waste Management is a `,.)ipical and Traditional Concern of Local Government,' Fundamentally Distinct from Entreprennt 'or-Profit Activity
In United Haulers, the Supreme Court was called upon to decide what level of
Commerce Clause scrutiny to apply to flow control ordinances benefiting a clearly
public entity, such as the Harry County Solid Waste Authority. To answer that
question, the Court stated a fundamental premise:
States and municipalities are not private businesses - far from it. Unlike private enterprise, government is vested with the responsibility of protecting the health, safety, and welfare of its citizens. These important responsibilities set state and local government apart from a typical private business.
12
134 Doe. 33 Red: 05/14/2013 21 of 35
United Haulers, 550 U.S. at 34243 (internal citations omitted). Due to those
differences, the Court concluded that "it does not make sense to regard laws favoring
local government and laws favoring private industry with equal skepticism," id, at
343, and referring to flow control ordinances in particular, the Court emphasized that
such ordinances "are exercises of the police power in an effort to address waste
disposal, a typical and traditional concern of local government." Id, at 344.
Similarly, the Court explained that unlike a protectionist measure for the benefit of
private enterprise, laws favoring local government "may be directed toward any
number of legitimate goals unrelated to protectionism," which includes "enabl[ing]
the Counties to pursue particular policies with respect to the handling and treatment
of [local] waste," and "allocating the costs of those policies on citizens and
businesses according to the volume of waste they generate." Id. at 343. Put another
way, the analytical framework set forth in United Haulers reflected the Supreme
Court's recognition that for Commerce Clause purposes flow control ordinances
benefiting a public facility must be viewed through a different lens because they
implicate the broad range of public functions with which local government is
uniquely entrusted.
Appearing to ignore the Supreme Court's analysis in United Haulers, a
recurring theme of Appellants' brief is the notion that Horry County acted with
"purely financial" motives that seek to "suppress competition" in the marketplace.
13
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Appellants' Br. 14-15. Implicit in this argui ,;wfit is the unfounded notion that Horry
County is nothing more than a rival participant in the market, frustrating Appellants'
private entrepreneurial objectives. To the contrary, United Haulers recognizes that
local government responsibility for solid waste management, including the use of
flow control, is fundamentally distinct from the for-prof t entrepreneurial activity
traditionally performed by private businesses. This reflects longstanding recognition
of waste management as "a core function of local government in the United States."
United Haulers, 550 U.S. at 344; see also Sandlands C&D, LLC v County o f Horry,
716 S.E.2d 280, 285 (2011) ("In view of [Horry County's] longstanding
involvement in the field of solid waste management, we find that .. Ordinance [02-
09] represents a valid exercise of Harry County's police powers."). Appellants'
attempt to diminish the full range of Horry County's responsibilities simply re-
argues (or altogether ignores) the Supreme Court's reasoning in United Haulers.
In that regard, it bears emphasis that the public service obligations local
governments fulfill through the exercise of flow control authority have no
resemblance to the narrower imperatives of a private enterprise engaged in solid
waste collection or disposal. Thus, unlike the choices available to private enterprise
in a given market, in carrying out their public responsibilities local governments do
not have the luxury of "pick[ing] out good portions of a particular territory, serv[ing]
only select customers . . . , and refus[ing] service to other users." General Motors v.
14
„:.3-113 ,1 Doc: 33
Po: 23 of 35
Tracy, 519 U.S. 278, 297 (1997) (citation o That is the context for the
Supreme Court's conclusion in United Haulers that flow control ordinances like
Horry County's do not facially discriminate under the dormant Commerce Clause or
otherwise unduly burden interst t icree. In t, local governments that rely
on flow control do not undertake their solid waste management responsibilities for
profit, entrepreneurial spirit or the like, but rather to satisfy one of their "typical and
traditional” governmental obligations. Id. at 347.
2. Essential Differences tween Collection- Disposal Businesses an orry Co A grated Waste Managemi 01 Services Further Preeludo a Findin t, of Diserinanon Under the Commerce (L''.41ta
Appellants' discrimination claim is also belied by the requirement that under
the dormant Commerce Clause "any notion of discrimination assumes a comparison
of substantially similar entities." General Motors, 519 U.S. at 298. In General
Motors, the Supreme Court addressed this matter as follows:
Conceptually, of course, any notion of discrimination assumes a comparison of substantially similar entities. Although this central assumption has more often than not itself remained dormant in this Court's opinions on state discrimination subject to review under the dormant Commerce Clause, when the allegedly competing entities provide different products, as here, there is a threshold question whether the companies are indeed similarly situated for constitutional purposes. This is so for the simple reason that the difference in products may mean that the different entities serve different markets, and would continue to do so even if the supposedly discriminatory burden were removed.
15
Appeal: 13-1134 fl(. Pg: 24 of 35
id. at 298-99; see generally id. at 297-303. The importance of comparing
substantially similar entities has particular application in the context of flow controL
That is because local governments that rely on flow control typically provide a
comprehensive array of waste management services (often statutorily-mandated) that
go well beyond the narrower waste collection-disposal business enterprise that
underlies Appellants' claim of discrimination. See United Haulers, 550 U.S. at 346-
47.
More specifically, the waste management functions performed by local
governments that rely on flow control (including amici) will typically comprise, in
addition to disposal of non-recyclable waste, a number of environmentally-essential
services such as recycling, household hazardous waste programs, yard waste
collection, related educational programs and comprehensive planning. As noted
earlier supra n.2), such recycling and related services are referred to as
"integrated waste management" services. Because these services "generally do not
lend themselves to generation of their own revenues," Report to Congress on Flow
Control at ES-1 , supra n.4, the affected local governments charge a "system" fee
which, although imposed only on disposal of non-recyclable waste, supports the full
array of integrated waste management services provided. That is precisely the case
with Harry County: the "system fee" the County imposes at the point of disposal has
provided the funding for all of the County's solid waste management and recycling
16
Doc: 33 dgcl: 'iJ2 Pg: 25 or :•*•,,
programs as well as the County's 911 emerEm -Icy response system and
environmental education in schools, facilitA the development and operation of a
renewable energy (landfill gas-to-energy) facility, and ensures that waste generated
in the County is disposed of in an environmentally sustainable manner, See J.A. at
460-462, 518-519. This same point was supi...c .in the record before the Supreme
Court in United Haulers, which expk that the flow control-supported integrated
waste management programs in 1ha. case were based on "charging tipping fees for
non-recyclable waste that support all waste system components, and not charging
fees for delivery of recyclables [or yard waste and household hazardous waste
collection programs, education, etc.]," the result of which is to "provide(] greater
incentives not only for complying with recycling laws, but also for reductions in the
generation of waste." Joint Appendix at 357a-358a (119), United Haulers Ass'n, Inc.
v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S, 330 (2007) (No, 05-1345);
see also id. at 376a (1142), 381a (1149). 5
It should also be emphasized that flow control provides financial incentives
for waste reduction and recycling that are not possible through other means, such as
tax subsidies, which do not create the same difference in relative prices that comes
with increasing the price for waste disposal. See id. at 388a-389a 0[60); see also
see United Haulers, 550 U.S. at 336 n,1 ("Tipping fees are disposal charges levied against collectors who drop off waste at a processing facility").
17
• L. • ,i•12013
United Haulers, 550 U.S, at 346-47 (explaining that flow control "create[sj
enhanced incentives for recycling and proper disposal of other kinds of waste" by
"accepting] recyclables and many forms of hazardous waste for free" which
"effectively encourage[s] their citizens to sort their own trash," i.e., source-separated
recycling, and avoid the high cost of waste disposal). Addressing the same point in
its Report to Congress on Flow Control, the Environmental Protection Agency
explained that "Edjue to flow control," the affected local governments' system fees
"often cover other municipal system costs (e.g., curbside recycling). In contrast,
private regional landfills are more likely to set tipping fees at (lower) levels that
recover disposal costs only." Report to Congress on Flow Control at 111-51. 6
Finally, Appellants also argue (Br. 9, 13-15) that Horry County should pursue
waste management alternatives other than flow control, such as tax subsidies. Aside
6 Prior to its decision to use flow control, Horry County had become increasingly concerned that it would not be able to attract sufficient waste to generate the tipping fee revenue needed to support the County's recycling and other integrated waste management programs, see LA. 561, 595, and the record also shows that the County was well aware of the shortcomings inherent in such alternatives. See LA. 613 ("A countywide to illage to cover non-landfill based services does not directly provide an incentive for recycling. In fact, implementation of a millage to cover the [County's] non-landfill related services would reduce landfill tipping fees, which would make disposal cheaper, thereby reducing the economic incentive to recycle, as perceived by the landfill customer."); J.A. 617, 624 (same). See also Variable Rates In Solid Waste: Handbook For Solid Waste Officials, U.S. EPA, EPA/530-SW-90-084A, Vol. I — Exec. Summ. 2 (Sept. 1990) (discouraging use of local taxes, such as property taxes, to support solid waste management services because such use of property taxes fails to give "residents any incentive to reduce their waste" (original emphasis)).
18
134134 1:) ,,2;: Pg: 27
from the fact, noted above, that such alternatives are less effective management
tools, changing from flow control to a system of disposal fees, tax subsidies, etc., for
recycling and other programs would not lessen the impact on interstate commerce
because the very same recycling, waste processing and disposal facilities would be
used (albeit, less material would be recycled and more would require disposal).
Moreover, Appellants' argument ignores the fact that the choice among such
alternatives is not for the courts but rather for Homy County and other states and
localities responsible for municipal waste management, See Brotherhood of
Locomotive Firemen & Enginemen v. Chicago, Rock Island & Pacific Railroad Co.,
393 U.S. 129, 142 (1968) ("If there are alternative ways of solving a problem, we do
not sit to determine which of them is best suited to achieve a valid state objective."
(quoting Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 524 (1959)); see also
United Haulers, 550 U.S. at 343 ("The dormant Commerce Clause is not a roving
license for federal courts to decide what activities are appropriate for state and local
government to undertake, and what activities must be the province of private market
competition.").
Putting these points in context, Appellants' failure to recognize the significant
difference between their collection-disposal business enterprises and the statutorily-
driven integrated waste management services provided by flow-control-reliant
communities "ignore[s] what is probably the single most important variable that
19
Appe -
33 ,,311412D13 Pg:
differentiates public, flow-controlled facilities from private disposal sites" and
results in a false comparison of "apples to watermelons, [a]nd the comparison is
invalid." See Interstate Waste and Flow Control: Hearing On S. 1194 And 5'. 2034
Before The Senate Conon. On Emit And Pub. Works, 107th Cong. 995 (2002)
(quoting statement of Mark Lennon and Patrick Pinkson-Burke, Planning and
Community Assistance Section, Waste Management Division, New Hampshire
Department of Environmental Services) (available at
http://www.gpo.govifdsys/ k CHRG-I07shr 83690/ df/CHRG-
107shrg83690.pdf). Simply put, communities that rely on flow control are able to
provide a considerably more comprehensive array of waste management services to
their residents, and that choice does not offend the Commerce Clause because 'i t
does not make sense to regard laws favoring local government and laws favoring
private industry with equal skepticism." United Haulers, 550 U.S. at 343.
20
Appeal: 134134 Doe:. 06/1412)13 PT 29 of 35
CONCLUSION
The judgment of the district court should be affirmed.
Respectfully submitted,
Scott M. DuBoff C. Young
Ciervey Schubert Barer 1000 Potomac Street, NW Fifth Floor Washington, DC 20005 Counsci for Amid Curiae
(Additional Counsel Listed on Inside Cover)
21
ppeal: 13-1134 Doc: 33 Filed: 0611412013 it'g: 30 of 35
Appendix —Descriptions of Amici
The Delaware County Solid Waste Authority was established in 1954. Serving a county of more than 555,000 redents in populous southeastern Pennsylvania, the Authority's Integrated Waste Mafiqement (IWM) progi -arn; were established in reliance on flow control authority and emphasiv:o waste reduction and recycling and the use of best available technology, including a modern waste-to-energy (WTE) facility that began operation in 1992.
ecomaine is the successor by merger to Regional Waste Systems, which was established in 1974, to provide an IWM system for its twenty-one member-owner municipalities in southern Maine. Following extensive planning and public deliberation (at municipal, regional and state levels), the member municipalities voted to construct a modern WTE facility to replace reliance on landfills. Bonded indebtedness in excess of $76,000,000 was issued for the system's facilities (which includes Maine's largest recycling program) in reliance on the use of flow control authority.
The International Municipal Lawyers Association (IMLA) is a non-profit, professional organization of over 2,500 local government entities, including cities, counties, and special district entities, as represented by their chief legal officers, state municipal leagues, and individual attorneys. Since 1935, IMLA has served as a national, and now international, clearinghouse of legal information and cooperation on municipal legal matters. IMLA's mission is to advance responsible development of municipal law through education and advocacy by providing the collective viewpoint of local governments around the country on legal issues before federal and state courts.
The City and County of Honolulu, Hawaii, utilizes IWM to serve its 900,000 citizens, which includes Honolulu (Hawaii's capitol) and the entire island of Oahu. Facilities include a modern WTE facility, three transfer stations, a municipal solid waste landfill which includes an ash monofill, a construction and demolition debris landfill, yard waste composting, multiple materials recycling facilities, and a household hazardous waste collection facility. The County has relied on flow control authority since 1990 to facilitate implementation of this IWM system.
The Lancaster County Solid Waste Management Authority (LCSWMA) provides municipal solid waste management services for Lancaster County, Pennsylvania. LCSWMA serves a population of 520,000 with an IWM system consisting of a county-wide recycling program, household hazardous waste facility, transfer station, WTE facility and landfill. Since its establishment in 1987, LCSWMA has relied
Appea1:13-1.134, Doc: 33 06/1412013 P 3 f.3
upon flow control ordinances and contracts with private haulers to secure delivery of waste, resulting in the long-term financial stability of the system and the rates charged to residents and businesses.
Marion County, Oregon utilizes IWM to serve its 300,000 citizens, which includes Salem (Oregon's capitol) and nineteen other cities. Facilities include a modern WTE facility, two transfer s , `.ions, an ash monofill, a construction and demolition debris landfill, and yar ' composting and household hazardous waste collection facilities. The Cou y has relied on flow control authority since 1986 to facilitate implementation of fois IWM system,
Montgomery County, Ohio proviO:s int-e;rated solid waste management for the approximately 500,000 residents oi the 4 er Dayton including recycling, waste reduction and waste disposal services. The County's innovative waste management solutions date back to the 1960s with the construction of two waste combustion facilities that began operation in 1970. Despite long-term prior reliance on flow control authority, uncertainties associated with use of flow control prior to the Supreme Court's United Haulers decision prevented the County from proceeding with planned retrofits of its waste combustion plants.
The National Association of Counties (NACo) is the only national organization that represents county governments in the United States. Founded in 1935, NACo provides essential services to the nation's 3,069 counties. NACo advances issues with a unified voice before the federal government, improves the public's understanding of county government, assists counties in finding and sharing innovative solutions through education and research, and provides value-added services to save counties and taxpayers money. NACo supports local governments' legal authority to control the flow of municipal solid waste generated within their jurisdictions, and has done so for many years.
Pine Belt Regional Solid Waste Authority is a political subdivision of the State of Mississippi formed in 1992 under section 17-17-307 of the Mississippi Code to act "in all respects for the benefit of the people of the state in the performance of essential public functions...to promote the health, welfare and prosperity of the general public." The Authority provides IWM services for the counties of Covington, Greene, Jefferson Davis, Jones, Perry and Stone, and the cities of Petal, Laurel and Hattiesburg. A challenge to Authority members' reliance on flow control was rejected in National Solid Waste Management Assoc. v. Pine Belt Regional Solid Waste Auth., 389 F.3d 491 (5th Cir. 2004).
4134 Duc: '';1201 Pq: 32 of:35
The Solid Waste Association of North America (SWANA) is a nonprofit educational organization. For nearly 50 years, SWANA has been the leading professional association in the solid waste field, serving municipal solid waste professionals throughout North America with conferences, certifications, publications, and technical training. SWANA supports local governments and waste authorities that undertake flow control programs responsive to compelling local objectives and mindful of the legitimate interests of residents, businesses and other affected parties.
The Solid Waste Authority of Central Ohio (SWACO) serves Franklin County (Columbus) and parts of five surrounding counties, with a population of over 1.2 million. Since its inception in 1989, SWACO has been a catalyst for recycling and cutting-edge programs to find new uses for waste. Despite long-term reliance on flow control, uncertainties associated with the use of flow control prior to the Supreme Court's United Haulers decision prevented SWACO from upgrading its 2,000 ton-per-day WTE plant, which was instead required to shutdown. As a result of United Haulers, SWACO is now able to rely on flow control to implement a comprehensive solid waste management plan that addresses operation of its landfill and transfer stations and provide, without charge, a variety of recycling and waste minimization services.
The Solid Waste Authority of Palm Beach County (SWA) is a Dependent Special District created by the Florida Legislature to address solid waste management and recycling for all of the 1.3 million residents and businesses in the County. SWA operates a fully integrated system of six transfer stations, a centrally located landfill, a recently refurbished WTE facility, a new 3,000-ton per day WTE facility (currently under construction), one of the largest publicly-owned recycling facilities in the United States, a biosolids pelletizing facility, and several other programs including composting and household hazardous waste collection. Reliance on flow control and non-ad valorem assessments have been crucial to the SWA's ability to finance this infrastructure.
Serving a population of 270,000, the Solid Waste Disposal Authority of the City of Huntsville, Alabama operates a 690 ton-per-day WTE (steam) plant, curbside recycling, landfill gas recovery, metals recovery, sewage sludge incineration, and household hazardous waste programs. In reliance on flow control, the Authority has issued $121 million in bonds, and all Authority services are financed from system fees and steam sale proceeds.
The South Carolina Association of Counties (SCAC) is the only organization dedicated to the statewide representation of county government in South Carolina. SCAC works with county officials to provide education and training, legislative
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reporting, research and technical assistance. SCAC has worked closely with Horry County concerning this litigation to ensure that all 46 South Carolina counties maintain the ability to properly address their significant responsibilities under the state's Solid Waste Management Act.
Protection of the environment was a primary cons' ition in the development of the Spokane Regional Solid Waste System (RSW' by the City of Spokane and Spokane County, Washington. Reliance on flow control authority and an integrated system fee have been principal factors in implementing the Spokane RSWS, which provides solid waste reduction, recycling, recovery of energy from waste, composting and household hazardous waste collection in an environmentally safe and cost-effective manner and consistent with state requirements and objectives for solid waste management planning.
The Wasatch Integrated Waste Management .D r oot is a Utah special service district organized in 1984 to manage solid waste for Davis and Morgan counties and sixteen cities. Wasatch serves a population of more than 230,000 with a state-of-the-art WTE facility, a modern gas recovery-equipped landfill, and a variety of additional IWM services. Reliance on flow control authority was critical for establishing these programs, and a successful by-product of the Wasatch system is the sale of steam and electricity to serve adjacent Hill Air Force Base.
Established in 1971 to assure environmentally sound management for all municipal solid waste generated in York County, Pennsylvania, the York County Solid Waste and Refuse Authority serves a population of more than 435,000. The Authority's programs emphasize waste reduction, recycling and beneficial reuse with best available technology. The latter led to development of a modern WTE facility that began operation in 1989 and generates renewable energy to serve approximately 20,000 homes. The flow control ordinance York County adopted in 1989 remains in place today and has been the key factor in avoido , reliance on taxes while securing sufficient revenue to support WTE technology' 1 ,,rater initial cost (as well as the cost of other environmentally proactive programs — which are provided without charge — such as household hazardous waste collection services, public education programs, collection and management of discarded pharmaceuticals, etc.).
iv
1 13-1134 Doc: 33 Filed: 06/14/2013 Pg: 34 o
CIT t2ATE
I hereby certify that the foregoing brief complies with Fed. R. App. P.
32(a)(7). The word count function of the word processing system used to prepare
this brief indicates that it contains 5,443 words (inclusive of footnotes, citations and
the Appendix, but exclusive of the tables of contents and authorities and attorney's
certificate). This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of
Appellate Procedure 32(a)(6) because the brief has been prepared in Times New
Roman font, a proportionately spaced typeface, 14 point size, using Microsoft Word
2007.
/Scott M. DuBoff Scott M. DuBoff Counsel for Amid Curiae
Dated: June 14, 2013