This is the second time this case has been appealed to the Supreme Court. This time around, the NAM joined with the National Solid Waste Management Association and the American Trucking Associations to urge the Court to review an adverse ruling by the Second Circuit that would allow a municipality, county or state to impose flow-control restrictions on the interstate transportation of solid waste. Flow-control laws allow local jurisdictions to prop up their disposal facilities by preventing waste generated in the locality from being taken anywhere else. The 1994 Supreme Court decision in the Carbone case held that a town's law flow-control ordinance discriminated against interstate commerce. The Second Circuit in this case provided a blueprint for local governments to avoid the Carbone decision by vesting part of the ownership of private waste disposal facilities in a public entity.
Our amicus brief argued that this ruling would seriously disrupt the interstate market in solid waste disposal services, including recyclables, and it ignored the practical economic effect of the ordinance, which is the key determinant when analyzing issues of discrimination against interstate commerce.
On April 30, 2007, the Court affirmed the Second Circuit's ruling, 6 to 3. It held that the county's restrictions treat in-state and out-of-state private business interests equally, and the government has an interest different from and superior to that of private businesses, since government is responsible for protecting the health, safety and welfare of its citizens. The Court was reluctant to interfere with numerous state and local government initiatives undertaken in furtherance of their police power. In addition, most of the burden of the regulation falls on those who voted for the laws, and they can change them through the normal political process.
The decision gives state and local governments vast power to control the disposal of all wastes within their jurisdictions, even though it may be more expensive.