United Haulers v. Oneida-Herkimer Waste

• Citation: 438 F.3d 150
• Decision Date: 16 February 2006
• Docket Number: Docket No. 05-2024-CV.
• Parties: UNITED HAULERS ASSOCIATION, INC., Transfer Systems, Inc., Bliss Enterprises, Inc., Ken Wittman Sanitation, Bristol Trash Removal, Levitt's Commercial Containers, Inc., and Ingersoll Pickup, Inc., Plaintiffs-Appellants, v. ONEIDA-HERKIMER SOLID WASTE MANAGEMENT AUTHORITY, County of Oneida and County of Herkimer, New York, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

438 F.3d 150

UNITED HAULERS ASSOCIATION, INC., Transfer Systems, Inc., Bliss Enterprises, Inc., Ken Wittman Sanitation, Bristol Trash Removal, Levitt's Commercial Containers, Inc., and Ingersoll Pickup, Inc., Plaintiffs-Appellants, v. ONEIDA-HERKIMER SOLID WASTE MANAGEMENT AUTHORITY, County of Oneida and County of Herkimer, New York, Defendants-Appellees.

Docket No. 05-2024-CV.

United States Court of Appeals, Second Circuit.

Argued: December 14, 2005.

Decided: February 16, 2006.

COPYRIGHT MATERIAL OMITTED

Miriam R. Nemetz (Evan M. Tager, on the brief), Mayer, Brown, Rowe & Maw LLP, Washington, D.C. Appearing for Plaintiffs-Appellants.

Michael J. Cahill, Germano & Cahill, P.C., Holbrook, N.Y. (Thomas E. Kelly, Horigan, Horigan, Lombardo & Kelly, P.C., Amsterdam, N.Y.; Richard A. Frye, Frye, Foley & Carbone, Utica, N.Y.; Judy Drabicki, Dexter, N.Y., on the brief) Appearing for Defendants-Appellees.

Caitlin J. Halligan, Solicitor General of the State of New York (Daniel Smirlock, Deputy Solicitor General; Julie M. Loughran, Assistant Solicitor General; and John Sipos, Assistant Attorney General, on the brief), for Eliot Spitzer, Attorney General of the State of New York, New York, N.Y. Appearing for Amicus Curiae State of New York.

Scott M. DuBoff, Wright & Talisman, P.C., Washington, D.C. (Robert Michalik, Michalik Bauer Silvia & Ciccarillo, New Britain, CT; Daniel Guiney, County Attorney of Allegany County, Belmont, NY; Allen Holbrook, Robert Kirtley, Bryan R. Reynolds, Sullivan Mountjoy Stainback & Miller, Owensboro, KY; Scott Norris, Assistant Legal Counsel, Marion County Office of Legal Counsel, Salem, OR; Nicholas Nazdo, Jensen Baird Gardner & Henry, Portland, ME; Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, Dayton, OH; Christine M. Chale, Rappaport, Meyers, Whitbeck, Shaw & Rodenhausen, Hudson, NY; Moran M. Pope, III, Pope & Pope, P.A., Hattiesburg, MS; Janice E. Ellis, Prosecuting Attorney, George B. Marsh, Deputy Prosecuting Attorney, Snohomish County, Everett, WA; Harold J. Anderson, Chief Counsel, Solid Waste Authority of Central Ohio, Grove City, OH; Charles H. Younger, Huntsville, AL; Robert M. Strickler, Griffith, Strickler, Lerman & Solymus, York, PA, of counsel) Submitting Brief for Amici Curiae Bristol Resource Recovery Facility Operating Committee; Cape May County Municipal Utilities Authority; County of Allegany, New York; Daviess County, Kentucky; County of Madison, New York; Federation of New York State Solid Waste Associations; Marion County, Oregon; Mid-Maine Waste Management Corporation; Montgomery County, Ohio; Montgomery-Otsego-Schoharie Solid Waste Management Authority; New York Chapter of the Solid Waste Association of North America; New York State Association for Reduction, Reuse and Recycling; New York State Association for Solid Waste Management; Pine Belt Regional Solid Waste Management Authority; Regional Waste Systems, Inc.; Snohomish County, Washington; Solid Waste Authority of Central Ohio; Solid Waste Disposal Authority of the City of Huntsville, Alabama and the York County Solid Waste and Refuse Authority.

Before: CALABRESI, KATZMANN, and WESLEY, Circuit Judges.

KATZMANN, Circuit Judge.

In this case, we are called upon to decide whether a non-discriminatory municipal flow control regulation that does not place non-local firms at a competitive disadvantage, regulate extraterritorially, or conflict with the regulatory requirements of any other jurisdiction nonetheless violates the dormant Commerce Clause. The municipal scheme at issue requires that the garbage generated by local households and businesses be delivered to facilities which are owned and operated by a public corporation, thereby preventing this trash from being processed at non-local facilities. After processing, the trash is then delivered by a private contractor to a designated landfill site, or is reused or recycled. We decline to decide today whether these flow control ordinances impose a cognizable burden on interstate commerce by prohibiting the export of a locally generated article of commerce because we hold that any such burden would not be clearly excessive in relation to the putative local benefits of the flow control scheme. We conclude, therefore, that the challenged local ordinances do not violate the Commerce Clause. Accordingly, we affirm the judgment of the district court.

I. BACKGROUND

In 1995, Plaintiffs-Appellants United Haulers Association, Inc., Transfer Systems, Inc., Bliss Enterprises, Inc., Ken Wittman Sanitation, Bristol Trash Removal, Levitt's Commercial Containers, Inc. and Ingersoll Pickup, Inc., ("plaintiffs") filed this action pursuant to 42 U.S.C. § 1983 in the Northern District of New York. They claim that ordinances regulating the collection, processing, transfer and disposal of solid waste enacted by the Counties of Oneida and Herkimer violate the dormant aspect of the Commerce Clause and seek injunctive relief barring the enforcement of these ordinances, along with damages and attorneys' fees. Plaintiff United Haulers Association, Inc. is a New York not-for-profit corporation comprised of solid waste management companies. Each of the remaining plaintiffs is a New York business entity that was a member of the United Haulers Association operating in Oneida and Herkimer Counties at the time this suit was filed.

Defendants-Appellees County of Oneida and County of Herkimer (collectively, "the Counties") enacted the challenged ordinances in 1990. These flow control regulations collectively require all solid wastes and recyclables generated within these adjoining upstate New York counties to be delivered to one of several waste processing facilities owned by Defendant-Appellee Oneida-Herkimer Solid Waste Management Authority ("the Authority"), a municipal corporation.¹ See Oneida County Local Law No. 1 of 1990 ("Oneida Law"); Herkimer County Local Law No. 1 of 1990 ("Herkimer Law"). The Authority charges a per-ton "tipping" fee for receiving this waste that is significantly higher than the fees charged on the open market elsewhere in New York State.

The Counties have not excluded private commercial entities from other segments of the local market for waste disposal services. On the contrary, the flow control ordinances expressly allow any licensed private entity, whether local or non-local, to collect solid wastes from area businesses and households for delivery to the Authority's processing facilities. Oneida Law § 10; Herkimer Law § 10. Private commercial entities also are involved in removing wastes from the Authority's facilities after processing. Pursuant to its statutory powers, see N.Y. Pub. Auth. L. § 2049-ee(8), the Authority periodically selects a private hauler through an open bidding process to transport processed wastes and recyclables from the Authority's facilities for delivery elsewhere. The Authority awards this delivery contract to the entity deemed to be "the most responsive and responsible Respondent demonstrating the requisite experience and skill in the necessary technologies, and proposing a plan that provides the most cost-effective method of disposing of solid waste with maximum protection of human health and the environment." Expert Report of Robert N. Stavins ¶ 11. Plaintiffs do not contend that in-state firms have any unfair advantage in this bidding process. However, they do note that the Authority's most recent contract has resulted in the shipment of the Counties' waste to a landfill in New York State, and that the Authority is currently in the process of constructing a landfill site to which all of the Counties' landfill-bound processed wastes will be delivered beginning in 2007. See Oneida-Herkimer Solid Waste Management Authority, http://www.ohswa.org/landfill/index.html (last visited Feb. 10, 2006). Plaintiffs assert that both of these developments further burden interstate commerce.

Plaintiffs conceded at oral argument that the Counties could create a public monopoly encompassing the entire waste management process, thereby displacing private firms altogether, without violating the Commerce Clause. See, e.g., USA Recycling, Inc. v. Town of Babylon, 66 F.3d 1272, 1293-94 (2d Cir.1995). They nonetheless assert that, as long as private entities are permitted to collect garbage from customers, they may not be required to deliver that garbage to an in-state facility, whether publicly or privately owned, as this restriction necessarily prevents them from using processing facilities outside the Counties and thus diminishes the interstate trade in waste and waste disposal services.²

The Counties' flow control regime already has been the subject of one appeal to this Court. In the first installment, United Haulers Association Inc. v. Oneida-Herkimer Solid Waste Management Authority, 261 F.3d 245 (2d Cir.2001) ("United Haulers I"), we reviewed the district court's grant of summary judgment to the plaintiffs. The district court had found that the Counties' flow control ordinances, like those struck down by the Supreme Court in C & A Carbone v. Town of Clarkstown, 511 U.S. 383, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994), discriminate in favor of a single, favored provider, and therefore had examined the ordinances under the heightened standard applied to discriminatory economic regulation. We reversed, holding that because the Counties' flow control ordinances direct solid waste exclusively to facilities owned by the Authority, a public corporation, they do not favor local business interests and therefore are not discriminatory. United Haulers I, 261 F.3d at 263. We then remanded the case to the district court for consideration of the ordinances' validity under the more permissive Pike balancing test. See Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970) (stating that "[w]here [a] statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate...