The U.S. Supreme Court has repeatedly ruled that the “dormant” Commerce Clause prohibits states or local governments from banning or placing special burdens on out-of-state waste. NSWMA is frequently a party to such cases or files amicus briefs in support of its members. Under the Commerce Clause, legislation that has discriminatory intent or discriminates on its face or in its practical effect is usually found unconstitutional:

Philadelphia v. New Jersey, 437 U.S. 617 (1978)

Fort Gratiot Landfill v. Michigan, 504 U.S. 353 (1992)

Chemical Waste Mgmt. v. Hunt, 504 U.S. 334 (1992)

Oregon Waste Systems, Inc. v. Oregon, 511 U.S. 93 (1994)

NSWMA v. Meyer, 165 F. 3d 1151 (7th Cir. 1999)

Waste Management Holdings v. Virginia, 87 F. Supp. 2d 536 (2000)

To survive constitutional scrutiny, the government must demonstrate that the challenged law was not enacted with discriminatory intent and imposes only an “incidental” burden on interstate commerce.

Flow Control

The U.S. Supreme Court ruled in 1994 that flow control – state or local laws that direct where waste should be processed or disposed – violates the “dormant” Commerce Clause. Since that decision, several exceptions to this general principle have developed. The scope of these exceptions, and their application to specific factual circumstances involving solid waste, continue to be litigated.

C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994) (outlawing flow control)

Non-Discriminatory Flow Control Exception

These decisions hold that if the process by which local governments selected specific service providers or facilities is non-discriminatory, then requiring the use of these providers or facilities does not violate interstate commerce.

Houlton Citizens Coalition v. Town of Houlton, 175 F.3d 178 (1st Cir. 1999)

Harvey & Harvey, Inc. v. Chester County, 68 F.3d 788 (3d Cir. 1995)

Market Participant Exception

These decisions generally find that if a government entity is a “market participant” instead of a regulator, that the government entity is not subject to the limitations of the Commerce Clause.

Huish Detergents, Inc. v. Warren County, ____ F.3d _____ (6th Cir. 2000)

Sal Tinnerello & Sons v. Town of Stonington, 141 F.3d 46 (2d Cir. 1998)

NSWMA v. Williams, 146 F.3d 593 (8th Cir. 1998)

USA Recycling, Inc. v. Town of Babylon, 66 F.3d 1272 (2d Cir. 1995)

SSC Corp. v. Town of Smithtown, 66 F.3d 502 (2d Cir. 1995)

Intrastate Flow Control Exception
These decisions consider whether government laws directing all solid waste to specific in-state facilities, but allowing such waste to be processed at out-of-state facilities, implicate the Commerce Clause.

U&I Hauling v. City of Columbus, 205 F.3d 1063 (8th Cir. 2000)

Ben Oehrleins and Sons & Daughters, Inc. v. Hennepin County, 15 F.3d 1372 (8th Cir. 1997)

Randy’s Sanitation v. Wright County, No. 98-1205 (D. Minn. 1999)

Coastal Carting Ltd., Inc. v. Broward County, No. 96-7175 (S.D. Fla. 1999)

Vince Refuse Service, Inc. v. Clark County Solid Waste Management District, No. 93-319 (S.D. Ohio 1995)

Waste Management of Michigan v. Ingham County, No. 94-CV-94 (W.D. Mich. 1994)

Economic Flow Control Exception

These decisions consider whether using market forces such as fees to encourage solid waste to favored facilities violates the Commerce Clause or applicable state solid waste laws.

City of Paterson v. Passaic County Board of Chosen Freeholders, 164 N.J. 270 (2000)

Zenith/Kremer Waste Systems, Inc. v. Western Lake Superior Sanitary District, 572 N.W. 2d 300 Minn. 1997, cert. denied, 523 U.S. 1145 (1998)

Other Solid Waste Cases

There are several important solid waste cases pending in federal and state courts:

Solid Waste Ageny of Northern Cook County v. U.S. Army Corps of Engineers, 191 F.2d 845 (7th Cir. 1999), cert. granted, (May 22, 2000) (The U.S. Supreme Court is reviewing a federal appeals court ruling that the Corps’ Migratory Bird Rule under the Clean Water Act can be used to block the construction of a proposed Illinois landfill. Oral argument took place on Oct. 31, 2000, and a decision is expected in early 2001.)

A.G.G. Enterprises, Inc. v. Washington County, ____ F. Supp. 2d ____ (D. Or. 2000) (The 9th Circuit Court of Appeal is reviewing a district court ruling that the Federal Aviation Administration Authorization Act preempts certain local solid waste and recycling ordinances because they involve “property.”)

Lone Star Chapter v. Texas Natural Resource Conservation Commission, No. 00-____ (Travis Cty. D. Ct., Texas) (A solid waste association, a solid waste company and two Texas towns have challenged state air rules for the Dallas-Ft. Worth metropolitan area that would restrict landfill operations, beginning in 2005, between June and October.)


The federal Superfund program remains a source of potential liability for solid waste companies. The following decisions may impact such companies:

United States v. A.L. Processors, No. 91-309 (S.D. Ohio, Feb 16, 2000) (1999 amendment exempting scrap recyclers from liability does not apply to case pending when legislation was passed.)

Morton Int’l, Inc. v. A.E. Staley Mfg. Co. (D. N.J. 2000) (1999 amendment exempting scrap recyclers from liability applies to private contribution action pending when law was passed.)

Chemical Manufacturers’ Association v. Browner, No. 98-1255 (D.D.C. Nov. 16, 1998) (Challenge to EPA’s 1998 Municipal Solid Waste Settlement Policy rejected.)


The National Labor Relations Board (NLRB) has recently issued two decisions that may impact solid waste employers and employees:

M.B. Sturgis, Inc., 331 NLRB No. 173 (Aug. 25, 2000) (Holding that temporary employees may be included in collective bargaining units without employer consent.)

Epilepsy Foundation of Northeast Ohio, 331 NLRB 92 (July 10, 2000) Cases 8-CA-28169 and 8-CA-28264 (Holding that non-union employees have the right to have a co-worker present during certain disciplinary meetings.)

For information about legal issues relating to the solid waste industry, contact NSWMA General Counsel, David Biderman.