ELR Citation: ELR 21347
No(s). 1:CV-93-1318 (M.D. Pa. Jun 24, 1994)

The court holds that disputed factual issues regarding whether alternatives exist to a tri-county policy for controlling the flow of solid waste preclude summary judgment on whether the policy violates the Commerce Clause of the U.S. Constitution. The policy consists of county ordinances and a tri-county solid waste authority's rules requiring municipal waste generated or collected within the counties to be brought to the authority's landfill. The counties created the authority and the flow control policy pursuant to a Pennsylvania law requiring them to develop a long-range plan for the disposal of solid waste. The court first holds that the authority's rules regulate interstate commerce. They patently classify waste based on its origin, because waste generated within the counties must be disposed of within the counties, diverting waste and associated tipping fees from the stream of interstate commerce. Further, the rules are similar to the ordinance that the U.S. Supreme Court struck down in C&A Carbone, Inc. v. Clarketown, 24 ELR 20815 (1994), in that they prevent everyone except the favored local operator, the authority, from disposing of trash generated within the counties. Out-of-state landfills are not permitted to compete to provide these disposal services. The court holds that these economic effects are more than enough to bring the rules and ordinances within the purview of the Commerce Clause.

The court next holds that the county ordinances discriminate against interstate commerce. Although the counties' purposes in adopting the long-range plan undoubtedly were legitimate, the policy adopted to achieve these goals discriminates on its face on the basis of the origin of the waste. Further, the plain effect of the flow control policy is to hoard an article of interstate commerce, either trash or the service of disposing of it, for the benefit of local citizens and at the expense of out-of-state interests in the interstate market. Additionally, in claiming that the flow control policy was necessary to secure financing to carry out the counties' long-range plan, defendants are conceding that the purpose of the ordinances and rules was to finance the authority landfill. There is no evidence that the flow control component of the plan was necessary to ensure a separate health and safety or other local interest. The ordinances and rules favor the single authority facility over all others, hoarding locally generated waste, squelching competition, and leaving no room for outside investment. The court rejects defendants' argument that the court should narrowly construe Carbone and limit it to its facts, and holds that it is not persuaded that either the rationale or the result in a Third Circuit case that upheld a similar flow control ordinance survives after Carbone. The court holds that defendants' claim that flow control was the only available means to advance their legitimate interest in securing long-term waste disposal capacity raises a disputed issue of material fact that precludes summary judgment. The waste haulers challenging the flow control policy cursorily allege that other alternatives were available; however, defendants recite in detail the efforts they made to secure long-term waste disposal capacity after the state informed them they would be required to submit a long-term disposal plan.

The court rejects defendants' argument that because they are acting as "market participants," the Commerce Clause should not apply. The court holds that while the market for long-range disposal of solid waste generated within the tri-county area may be the proper focus for purposes of planning municipal or social policy, it clearly is not the proper unit of analysis for purposes of the market participation doctrine. The U.S. Supreme Court has made clear that the doctrine applies only to those narrowly defined markets in which a state or local government actually participates. But the market in which defendants claim to participate is several separate, albeit not wholly unrelated, markets, and defendants are not participating in all of these markets. They do not haul waste, nor, to the extent relevant here, do they purchase waste-hauling services. The court rejects defendants' attempt to circumvent the participation requirement by equating the citizens of the counties with the authority and the counties themselves. The court holds that defendants have not shown that they are participants in the trash-hauling market. Further, defendants do not seek to affect the market as would any other market participant, through the use of market power or leverage. Rather, they were able to implement the flow control policy only because of the regulatory powers they possess as sovereigns.

The court next holds that the doctrine of laches does not bar plaintiffs' claims. One of the plaintiffs did not come into existence until after the policy was fully operational, and factual disputes exist whether other plaintiffs participated in development of or acquiesced to the long-range plan. The court holds that the purposes served by the requirement that the parties exhaust their administrative remedies before resorting to court would not be thwarted if the claim is permitted to go forward. Hearing the action will not cause a premature interruption of the administrative process, because the plan has been approved and the time for administrative appeal has run. Nor is the constitutionality of the flow control policy within the peculiar expertise of a particular agency. Further, it is not clear that the administrative remedies are adequate under the circumstances of this case, because the time for filing an administrative appeal had passed by the time the harm to plaintiffs allegedly became clear. The court rejects defendants' argument that Congress impliedly authorized flow control ordinances through the passage of the Resource Conservation and Recovery Act, for the same reasons as articulated by Justice O'Connor in her concurring opinion in Carbone. Finally, the court denies defendants' motion for summary judgment against a waste hauler that alleged that absent the flow control policy it would take waste to another in-state, rather than out-of-state, facility. Because the case will now go to trial, the court will permit plaintiffs an opportunity to support their claims.

Counsel for Plaintiffs
Bernard A. Labuskes Jr.
McNees, Wallace & Nurick
100 Pine St., P.O. Box 1166, Harrisburg PA 17108
(717) 232-8000

Counsel for Defendants
Charles A. Bierbach
Bierbach, McDowell, McMinn & Zanic
113 4th St., Huntingdon PA 16652
(814) 643-3555