Supreme Court Hears Garbage Fees Case

WASHINGTON -- Local officials unfairly hurt private trash haulers by requiring them to process garbage at government-owned facilities, the haulers' lawyer told the Supreme Court Monday.

"No waste can leave the counties," Evan Tager said, in describing how two upstate New York counties are violating constitutional protections for interstate commerce.

The trash companies say they would pay much less to send the garbage to out-of-state transfer stations where it is sorted and baled before being shipped off for permanent disposal.

Like other local governments that have built recycling centers and landfills, Oneida and Herkimer counties rely on the fees to help pay off millions of dollars in debt they incurred to build the facilities.

The outcome of the case could hinge on whether the justices view trash disposal as a government responsibility or a service that could just as well be provided by competing private businesses.

The court decided a similar case in 1994, ruling 6-3 that local governments unlawfully restricted interstate commerce by requiring that garbage be sent to a designated transfer facility.

In that case, the facility was privately owned. The case before the court Monday involves government-owned transfer stations.

An appeals court determined that the difference was critical in ruling that the Oneida-Herkimer Solid Waste Management Authority was within its rights to mandate that private haulers use its facilities.

No private company is reaping a benefit and none is being discriminated against, Michael Cahill, the authority's lawyer, told justices. "Why public ownership matters is that it's not discriminatory," Cahill said.

But Tager said the counties are benefitting at the haulers' expense. "Every time trash comes in, they make more money," he said.

The counties also run a landfill, a recycling center, a compost facility and a hazardous waste disposal station. Only the pickup of garbage is done by private companies.

The authority charges $72.15 a ton for solid waste. The trash haulers say they could dispose of the garbage they collect in the two counties for $37 to $55 a ton.

Twenty-six states and 25 other local governments and trash authorities also urged the court to uphold the ruling of the 2nd U.S. Circuit Court of Appeals because state and local governments ultimately are responsible for their own garbage.

Five justices who voted to strike down the local ordinance in 1994 remain on the court. One of the five from the 1994 majority, Justice Antonin Scalia, derisively summarized the local governments' argument: "We're the government and we're here to help you."

Justice David Souter is the only one of three dissenters still on the bench. "Every municipal utility in the United States is going to fall," Souter said, if the court accepts the trash haulers' argument.

A decision is expected before July.

The case is United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, 05-1345.