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Are Public Facilities Different from Private Ones?: Adopting a New Standard of Review for the Dormant Commerce Clause

Bradford C. Mank

University of Cincinnati - College of Law

October 1st, 2006

Southern Methodist University Law Review, Vol. 60, p. 157, 2007
U of Cincinnati Public Law Research Paper No. 09-14

On September 26, 2006, the Supreme Court granted certiorari in United Haulers Association Inc. v. Oneida-Herkimer Solid Waste Management Authority to decide the important issue of whether local governments may require that all waste in their jurisdiction be sent to a publicly-owned waste facility and thereby discriminate equally against both local and out-of-state private firms. The dormant Commerce Clause doctrine (DCCD) grants federal courts authority to invalidate state/local laws that discriminate against foreign goods/firms. The Court has adopted an overly broad per se test that invalidates any local law that theoretically discriminates against foreign firms, even if there is no evidence that the law has actual discriminatory effects and even if the law discriminates similarly against most in-state firms. In 1994, the Supreme Court in C&A Carbone v. Town of Clarkstown held that a local government "flow control" ordinance requiring that all solid waste in its jurisdiction be sent to a single privately operated transfer station constituted per se discrimination against out-of-state businesses that sought to haul or dispose of that waste and therefore violated the DCCD, even though the only challenger to the law was a local business. The Court did not directly address whether a state or local government could enact a similar flow control scheme if the government itself owned the waste facility. In 2006, the Second and Sixth Circuits spilt over whether municipalities or states may enact "flow control" ordinances that force waste haulers within their political jurisdiction to send all waste to government facilities, prohibit the export of waste to out-of-state disposal sites, but discriminate equally against both in-state and foreign private firms. In United Haulers II, the Second Circuit held that a flow control ordinance requiring all solid waste be sent to county-owned processing sites does not discriminate against foreign firms because private in-state businesses are equally excluded. The Second Circuit held under the Pike balancing test that the benefits of the public flow control scheme outweighed the burdens of its complete prohibition on export of waste to other states. In National Solid Waste Management Association v. Daviess County, Kentucky, the Sixth Circuit, held that public facilities are subject to the same non-discrimination analysis used in Carbone and specifically rejected the Second Circuit's reasoning in its earlier United Haulers I decision. The Sixth Circuit argued that the majority opinion in Carbone had rejected any distinction between publicly and private owned landfills, but instead focused on whether a "flow control" ordinance discriminated against foreign firms by either preventing out-of-state firms from participating or hoarding waste so that it could not be sent to other states. In light of the clear split between the Second and Sixth Circuits, it is not surprising that the Supreme Court granted certiorari to resolve the issue of whether public waste facilities are different.

In deciding United Haulers, the Supreme Court should re-think Carbone's overly broad definition of discrimination. The Court is unlikely to radically change its approach to the DCCD. Based on its precedent, the Court is likely to continue to use both the per se test and the Pike test. A first step toward change would be for the Court to adopt the United Haulers decisions' presumptive use of the Pike test where public facilities have an effective monopoly, but are non-discriminatory in how they treat local and out-of-state private firms. The United Haulers decisions offer a first step in curbing the Supreme Court's overuse of the per se test and reformulating the Pike test to make it more workable. Whenever a law does not discriminate between local and foreign private firms, the Court should apply the more deferential Pike review standard, not the per se standard, to determine if the law imposes more than incidental burdens on interstate commerce and whether the law's benefits significantly outweigh any burdens to foreign interests. Additionally, going beyond the analysis in the United Haulers decisions, the Court should examine whether the law is purposefully protectionist. Furthermore, when the burdens of local ordinances fall much more heavily on local customers or taxpayers rather than out-of-state interests, the Court should not apply a per se discrimination test and should instead establish a rebuttable presumption that the law is valid under the Pike test. Without overruling Carbone, the Supreme Court in United Haulers could give more flexibility to local governments where a law does not favor local private firms at the expense of out-of-state firms by using a combination of three tests: first, the Pike test as it was applied in the United Haulers decisions; second, a purposefully protectionist standard; and, third, a local burdens test. In deciding United Haulers, the Supreme Court will hopefully adopt a pragmatic approach that is more sensitive to the needs of local governments struggling with serious waste issues. The Supreme Court should affirm the Second Circuit's decision in United Haulers II.

Number of Pages in PDF File: 58

Keywords: Dormant Commerce Clause, Environmental Law, Public Waste Facilities, Flow Control Ordinances

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Date posted: October 6, 2006 ; Last revised: August 28, 2009

Suggested Citation

Mank, Bradford C., Are Public Facilities Different from Private Ones?: Adopting a New Standard of Review for the Dormant Commerce Clause (October 1st, 2006). Southern Methodist University Law Review, Vol. 60, p. 157, 2007. Available at SSRN: http://ssrn.com/abstract=933357

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Bradford C. Mank (Contact Author)
University of Cincinnati - College of Law ( email )
P.O. Box 210040
Cincinnati, OH 45221-0040
United States
513-556-0094 (Phone)
513-556-1236 (Fax)
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