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

 Historical “Big Picture”  C&A Carbone (1994) & United Haulers (2007)  Post-United Haulers Cases  C&A Carbone/Rockland County (2014)  Implications/What’s Next? Topics for Today: 1

 Economic Flow Control  Other Legal Challenges: - Void for Vagueness (JWJ Industries) - Impairment of Contracts (City of Dallas) - Due Process Violations - Takings Topics NOT for Today: 2

Historical “Big Picture” 3 Public Private

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(Expert Report, C&A Carbone/Rockland County, M. Berkman) 13

 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” C & A Carbone v. Clarkstown (1994) 14

 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” United Haulers v. Oneida-Herkimer (2008) 15

 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 Underlying Second Circuit Opinions: 16

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 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, 4 th Cir.) Post-United Haulers Developments: 18

C&A Carbone v. Rockland County (2014) 19  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)

C&A Carbone v. Rockland County (2014) 20  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

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(Expert Report, C&A Carbone/Rockland County, M. Berkman) 22

Implications/What’s Next? 23

 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). 24

Andrew P. Foster Drinker Biddle & Reath LLP One Logan Square, Ste Philadelphia, PA (215) phone (215) fax 25 Thank You & Questions?