An Update of Flow Control Jurisprudence since United Haulers

Maynard Nexsen

Since United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, 550 U.S. 330, 344 (2007), most courts have upheld local flow control ordinances as constitutional under that holding.  Plaintiffs in the cases since United Haulers have asserted a multitude of arguments in an attempt to invalidate flow control ordinances; however, most of these arguments have been unsuccessful. National Solid Wastes Management Association v. City of Dallas has been the only case since United Haulers in which the court found a flow control ordinance unconstitutional.  That decision was based on violations of the Due Process Clause and Contract Clause.

The Dormant Commerce Clause

Plaintiffs’ efforts to factually distinguish their Dormant Commerce Clause claims from the holding in United Haulers have not been successful.  In Sandlands C & D v. County of Horry, the Fourth Circuit held that the flow control ordinance at issue did not discriminate against interstate commerce because it required haulers to dispose of solid waste at publicly-owned facilities and, therefore, treated all privately-owned facilities the same.  Sandlands C & D v. County of Horry, 737 F.3d 45, 52 (4th Cir. 2013).   The Fourth Circuit also upheld the ordinance under the Pike balancing test based on the same reasoning as the Supreme Court in United Haulers. Id. at 53.  The Court said that the insignificant effects the ordinance had on interstate commerce were outweighed by its substantial public benefits.  Id. at 53-54.  Additionally, the South Carolina Supreme Court had also ruled on a certified question concluding that the flow control ordinance was not preempted by State law governing solid waste management.  Sandlands C & D, LLC v. County of Horry, 394 S.C. 451, 471, 716 S.E.2d 280, 290 (2011).

Similarly, the plaintiffs in C & A Carbone v. County of Rockland attempted to factually distinguish their claim from the Dormant Commerce Clause precedent in United Haulers by asserting that the facilities at issue were publicly owned, but not publicly operated.  C & A Carbone, Inc. v. County of Rockland, 2014 WL 1202699, at *7 (S.D.N.Y. Mar. 24, 2014).  However, the district court held that public ownership is sufficient to avoid a Dormant Commerce Clause violation.  Id.  The Court specifically stated that in United Haulers the Second Circuit focused on public ownership not on public ownership and operation.  Id.  The court in C & A Carbone also stated that the Supreme Court did not address this issue in the United Hauler decision even though it could have done so.  Id. at *8.   Once the district court established that public ownership was sufficient, it found that the ordinance did not violate the Dormant Commerce Clause for the same reasons as the Supreme Court in United Haulers and the Fourth Circuit in Sandlands.  Id.

The Equal Protection Clause

Violation of the Equal Protection Clause is another argument plaintiffs have asserted in flow control cases since United Haulers.  Plaintiffs in both JWJ Industries v. Oswego County, 538 F. App’x 11 (2nd Cir. 2013), and Sandlands failed on their Equal Protection claims.  “‘To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and that the unequal treatment was the result of intentional or purposeful discrimination.’”  Sandlands, 737 F.3d 45, 55 (4th Cir. 2013) (quoting Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001)).

JWJ Industries alleged that it was receiving unfair treatment because a competitor, Syracuse Haulers, was allowed to take source-separated material to a non-county facility, but the plaintiff was prohibited from taking non-separated material to a non-county facility.  JWJ Industries, Inc., 538 F. App’x at 14.  The Second Circuit found that the plaintiff was not “similarly situated” to Syracuse Haulers because Syracuse Haulers was disposing of separated materials, whereas the plaintiff was attempting to dispose of non-separated materials.  Id.  Without differential treatment of entities under the same circumstances, there is not a violation of the Equal Protection Clause.  Id.

In Sandlands, the plaintiff alleged that it was treated differently from another facility owned by the neighboring county.  Sandlands, 737 F.3d at 52.  The Fourth Circuit held that the plaintiff was not similarly situated to the other facility because the other facility was publicly owned and the plaintiff was privately owned.  Id. at 55.

The Contract Clause

Unlike the other post-United Haulers flow control cases, the plaintiffs in National Solid Wastes Management Association v. City of Dallas prevailed on constitutional claims challenging a flow control ordinance.   National Solid Wastes Management Ass’n v. City of Dallas, 903 F.Supp.2d 446 (N.D. Tex. 2012).  The district court in City of Dallas found the ordinance unconstitutional under the Contract Clause of the United States Constitution.  Id. at 456.   In ruling on a Contract Clause claim, the courts employ three-step analysis: (1) whether the law is a substantial impairment of a contractual relationship; (2) if it is a substantial impairment, whether there is a significant and legitimate public purpose behind the regulation; and (3) if there is a legitimate public purpose, whether the law is reasonably necessary to achieve this purpose.  

In City of Dallas, the City entered into franchise agreements with the plaintiffs before the flow control ordinance was enacted.  Id. at 453-54.  The court found that the flow control ordinance was a substantial impairment to the franchise agreements because the agreements allowed the franchisees to dispose of waste at any authorized facility but the ordinance required the franchisees to dispose only at city-owned facilities.  Id. at 458.  Even though the City claimed that the ordinance was enacted to serve numerous public purposes, the court found that it was enacted in order to raise revenue, which is not a legitimate public purpose.  Id. at 459 (citing to Preliminary Injunction Order at 19, National Solid Wastes Management Ass’n v. City of Dallas, No. 3:11-cv-3200-O (N.D. Tex. Jan. 31, 2012)).  Because the Court found that the ordinance did not serve a legitimate public purpose, it did not have to address the final prong of whether the law was necessary to achieve this purpose.  Id.

The Due Process Clause

In JWJ Industries, the plaintiffs also asserted a Due Process Clause claim.  The Second Circuit rejected that argument, finding that the ordinance did not directly restrict the plaintiffs’ rights. JWJ Industries, 538 F. App’x at 14.  Although the plaintiffs argued that the ordinance “adversely affected” their profitability, the Court found such claim not to be substantial enough to constitute a violation of due process.  Id.

In City of Dallas, the court held that the ordinance violated the Due Process Clause in the Texas Constitution, which states, “‘No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.’” City of Dallas, 903 F.Supp.2d at 459 (quoting Tex. Const. art I, § 19).  The court found that the franchise agreements vested rights in the plaintiffs and that the City could not impair those vested rights through an unreasonable exercise of police power.  Id. at 460.  The City’s purpose of raising revenue was an unreasonable exercise of police power; therefore, the Court held that the ordinance violated the Due Process Clause. Id


Plaintiffs have also argued that flow control ordinances are unconstitutionally vague. “A statute can be unconstitutionally vague if it (1) ‘fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits,’ or (2) ‘authorizes or even encourages arbitrary and discriminatory enforcement.’” JWJ Industries, 538 F. App’x at 12 (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)).  JWJ Industries argued that the ordinance was vague in its entirety because it failed to state whether C & D debris was recyclable material, which could be disposed of at any facility, or if it was solid waste, which could only be disposed of at a County facility.  Id.  The Second Circuit held that that the ordinance was not unconstitutionally vague as a whole because someone of ordinary intelligence would understand that C & D was solid waste not recyclable material under the ordinance.  Id. at 13.  The Court based its conclusion on the ordinance’s reference to “unsorted” C & D debris, which contains both recyclable material and solid waste, and provides this type of material should be treated as solid waste.  Id.  If C & D debris was considered recyclable material, the ordinance would not distinguish recyclable material from C & D material as a whole.  Id.  Even though the Court did not find the ordinance unconstitutionally vague as a whole, it did uphold the district court’s decision that a section of the ordinance violated the second prong of the vagueness test.  Id. at 12.  This section authorized arbitrary enforcement because it allowed the program director to decide on a “case-by-case basis” whether a material was recyclable or not with no standard guidelines. Id.

In City of Dallas, the plaintiffs’ unconstitutional vagueness argument failed. The district Court held that common, well-understood words do not need to be defined in order to provide notice to people of ordinary intelligence. National Solid Wastes Management Ass’n v. City of Dallas, 903 F.Supp.2d 446, 466 (N.D. Tex. 2012). Also, the court held that the ordinance did not allow arbitrary enforcement because the director was constrained by express provisions of the ordinance. Id. at 468.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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