Today’s Opinion in United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority

By Amy Howe
on Apr 30, 2007 at 3:33 pm

By a vote of six to three, the Court today in No. 05-1345, United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, added the latest chapter to its trash – I mean, Commerce Clause – jurisprudence, upholding municipal ordinances that required trash haulers to deliver their trash to a publicly operated processing site. In so doing, the Court – at least in the view of Justice Alito, who filed a dissent – created an exception to the dormant Commerce Clause for state and local regulations that discriminate in favor of publicly owned entities.

Even beyond the holding itself, the decision is interesting just for the relatively unusual line-up of justices: Chief Justice Roberts wrote the opinion of the Court (except for one part, which served as the plurality opinion) and was joined in full by Justices Souter, Ginsburg, and Breyer. Justice Scalia concurred in part, writing separately to reiterate that, in his view, “the so-called ‘negative’ Commerce Clause is an unjustified judicial invention, not to be expanded beyond its existing domain.” Justice Thomas concurred in the judgment; he would throw out both the baby (the challenge to the ordinances) and the bathwater (“the Court’s negative Commerce Clause jurisprudence”). Justice Alito (can’t call me “Scalito” today) authored a dissent that was joined by both Justice Stevens and Justice Kennedy.

(For more background on the case, you can read Anna Holloway’s pre-argument summary of the case here and her summary of the oral argument here.)

During the 1980s, the New York counties of Oneida and Herkimer faced, according to the Chief Justice, a “solid waste ‘crisis’” that included not only health and safety problems, but also “price fixing, pervasive overcharging, and the influence of organized crime.” (Here, the majority opinion evokes a mental picture of Tony and the boys sitting around the back room of the Bada-Bing.) In response, the counties enacted ordinances that required all of their solid waste to be delivered to processing sites owned and operated by the Oneida-Herkimer Solid Waste Management Authority, a corporation created by the New York state government. Buoyed by the Supreme Court’s 1994 decision in C & A Carbone v. Clarkstown, which invalidated a similar ordinance that required trash to go to a privately operated processing facility, trash haulers filed suit, alleging that the ordinance violated the dormant Commerce Clause.

Relying on the difference between the privately operated facility at issue in Carbone and the publicly owned Oneida-Herkimer facility, the Court today rejected the trash haulers’ challenge to the “flow control” regulations. In the majority’s view, Carbone could not be dispositive because it did not address the public-private distinction. And because governments have responsibilities – such as health and safety concerns – beyond those of private businesses, the majority posits that “it does not make sense” to subject laws that favor local government to the same level of scrutiny as laws that “favor[] in-state business over out-of-state competition,” as the latter often seek to achieve “simple economic protectionism.” Indeed, the majority emphasizes, “treating public and private entities the same under the dormant Commerce Clause would lead to unprecedented and unbounded interference by the courts with state and local government” – interference that is particularly inappropriate in the area of traditional local government functions such as solid waste.

The plurality (in a section not joined by Justice Scalia) then goes on to hold that the trash ordinances survive the test outlined in Pike v. Bruce Church, under which nondiscriminatory statutes will be upheld “unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” The plurality reasoned that “[t]he ordinances give the Counties a convenient and effective way to finance their integrated package of waste disposal services” and, moreover, increase recycling (ah, if only this opinion could have been released on Earth Day!). The opinin concludes by declining the trash haulers’ “invitations to rigorously scrutinize economic legislation under the auspices of the police power.”

Justice Scalia uses his concurring opinion to remind readers of his long-held view that the Commerce Clause is merely “an authorization for Congress to regulate commerce.” This theme is echoed at greater length by Justice Thomas in his opinion concurring in the judgment. Justice Thomas – who joined the majority in Carbone – confesses error in this case, explaining that the “negative Commerce Clause has no basis in the Constitution and has proved unworkable in practice.” To the extent that the Court’s dormant Commerce Clause jurisprudence considers whether a rule is discriminatory and what purpose that discrimination may serve, Justice Thomas continues, it “gives nine Justices of this Court the power to decide the appropriate balance” “between protectionism and the free market.”

Joined by Justices Stevens and Kennedy, Justice Alito would have invalidated the ordinances on the ground that they were “essentially identical” to those at issue in Carbone. In Justice Alito’s view, statements by the Carbone majority “reflect[ed] a clear understanding that the station was, for all purposes relevant to the dormant Commerce Clause, a municipal facility.” More importantly, however, Justice Alito rejects the majority’s public-private distinction as “illusory”: “The Court has long subjected discriminatory legislation to strict scrutiny, and has never, until today, recognized an exception for discrimination in favor of a state-owned entity.” Moreover, there is no justification for the exception that, in the dissent’s view, the majority is creating out of whole cloth today. Contrary to the majority’s assertion, discrimination in favor of a state-owned entity, Justice Alito posits, does serve “local economic interests” (such as providing jobs to local residents and business for local suppliers), while discrimination in favor of privately owned local entities may serve legitimate health and safety purposes. Thus, Justice Alito contends, the proper inquiry in dormant Commerce Clause cases looks not only at the goals of the challenged regulation, but also at “the means by which those goals are realized.” If the means are discriminatory, then the regulation must be subjected to strict scrutiny.

Finally, Justice Alito’s dissent disputes two other premises on which the majority’s opinion rests. First, he rejects the contention that deference to regulations discriminating in favor of a publicly owned waste processing site is particularly appropriate because waste disposal is a traditional government function. Citing the Court’s 1985 opinion in Garcia v. San Antonio Metropolitan Transit Authority, he notes that “this Court has previously recognized that any standard ‘that turns on a judicial appraisal of whether a particular government function is ‘integral’ or ‘traditional’ is ‘unsound in principle and unworkable in practice.” In any event, he emphasizes, the private sector still manages most of this country’s trash. (The National Solid Wastes Management Association gets the consolation prize here of having its brief cited for this proposition.) Second, he finds it immaterial that the Oneida-Herkimer ordinances apply equally to both in- and out-of-state businesses, explaining that “the critical issue is whether the challenged legislation discriminates against interstate commerce.”