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Flow Control Update

Flow Control Update . Dormant Commerce Clause Challenges May 13, 2014. Presented by Andrew Foster. Topics for Today:. Historical “Big Picture” C&A Carbone (1994) & United Haulers (2007) Post- United Haulers Cases C&A Carbone/Rockland County (2014)

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Flow Control Update

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  1. Flow Control Update Dormant Commerce Clause Challenges May 13, 2014 Presented by Andrew Foster

  2. Topics for Today: • Historical “Big Picture” • C&A Carbone (1994) & United Haulers (2007) • Post-United Haulers Cases • C&A Carbone/Rockland County (2014) • Implications/What’s Next?

  3. Topics NOT for Today: • Economic Flow Control • Other Legal Challenges: • Void for Vagueness (JWJ Industries) • Impairment of Contracts (City of Dallas) • Due Process Violations • Takings

  4. Historical “Big Picture” Private Public

  5. (Expert Report, C&A Carbone/Rockland County, M. Berkman)

  6. C & A Carbone v. Clarkstown (1994) • Town ordinance imposed “Flow Control” • Directed all solid waste to a favored private facility • HELD: Violates the dormant Commerce Clause: • “hoards solid waste” for “favored local operator” • “squelches competition” • “discriminates” against interstate commerce • “economic effects are interstate in reach”

  7. United Haulers v. Oneida-Herkimer (2008) • County ordinances imposed “Flow Control” • Directed all solid waste to publicly owned and operated facilities • HELD: No dormant Commerce Clause Violation: • Exception for “publicly owned and operated” facilities • Flow Control laws that benefit “a clearly public facility” . . . are not “discriminatory”

  8. Underlying Second Circuit Opinions: • United Haulers (2d Cir., 2001) • No “discrimination,” because publicly owned facilities • Remanded for Pike balancing • United Haulers (2d Cir., 2006) • Pike balancing challenge rejected • If any “burden,” far outweighed by benefits

  9. Post-United Haulers Developments: • Quality Compliance (2008, M.D. GA.) • Lebanon Farms (2008, 3d Cir.) • Construction Materials (2009, D.N.H.) • Southern Waste (2010, S.D. Fl.) • Active Disposal (2010, N.D. IL.) • Sandlands C&D (Horry County) (2013, 4th Cir.)

  10. C&A Carbone v. Rockland County (2014) • County ordinance imposed waste “Flow Control” • Directed all solid waste AND recyclables to publicly owned, but (arguably) privately operated facilities • HELD: • No “discrimination” under UH (2d Cir., 2001) • Pike balancing rejected per UH (2d Cir. 2006)

  11. C&A Carbone v. Rockland County (2014) • Subholdings: • Mere public ownership of building is determinative • Unprecedented scope → recyclables! • “Market participation” doctrine protects “outsourcing” of operations • Evidence of law’s “ultimate efficacy” → irrelevant

  12. (Expert Report, C&A Carbone/Rockland County, M. Berkman)

  13. Implications/What’s Next?

  14. Undermines narrowness of United Haulers publicly “owned and operated”/“clearly public” exception • Encourages adoption of new flow control laws using publicly-owned, but privately-operated facilities • Invites flow control laws encompassing recyclables • Sanctions “nominal” public ownership of buildings to insulate flow control laws from challenge • Invites local governments to favor local firms via the “market participation” exception).

  15. Thank You & Questions? Andrew P. Foster Drinker Biddle & Reath LLP One Logan Square, Ste. 2000 Philadelphia, PA 19103-6996 (215) 988-2512 phone (215) 988-2757 fax Andrew.Foster@dbr.com www.drinkerbiddle.com

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