Garbage Makes Its Way to Supreme Court

Two cases before the court test capacity of cities, states to regulate disposal of trash

THE Supreme Court has garbage problems.

Today the justices of the nation's highest court are hearing arguments in one of several important trash-disposal cases they will decide this term.

The court must decide whether the Constitution's ``commerce clause'' limits the power of states and cities to regulate the treatment and disposal of trash that crosses state borders. The commerce clause authorizes Congress to regulate interstate commerce, and it has been interpreted by the Supreme Court to prohibit state and local governments from imposing ``undue burdens'' on the interstate movement of goods and services.

One undue burden on interstate trade that the court has traditionally banned is discriminatory treatment between in-state and out-of-state goods or services.

In the case before the jurists today, Oregon levied a higher disposal fee on garbage originating out of state than on trash generated within its borders. The state says the fee covers only its costs, and that, because in-state producers of trash pay part of those costs through taxes and other fees, the higher out-of-state disposal fee is not discriminatory.

But Oregon faces an uphill battle to prevail, some legal experts say. Last term the court struck down a similar fee imposed by Alabama on out-of-state toxic chemical wastes. Lawyers for Oregon contend that its fee is more closely calibrated to actual disposal costs than the Alabama levy was, but some observers say the record doesn't support that assertion.

``In our view, Oregon hasn't proved that the fee differential is merely compensatory,'' says Bruce Parker, general counsel of the National Solid Wastes Management Association (NSWMA), a trade group in Washington that opposes the statute.

``The court could reject Oregon's argument on the ground that it would allow states to make out-of-staters pay more for other services, like the use of roads,'' says Charlotte Crane, a professor at Northwestern University Law School in Chicago.

`Flow-control' ordinances

A more controversial and intensely watched garbage-disposal case was argued before the Supreme Court last month. At issue is the power of cities to enact ``flow-control'' ordinances requiring that all trash be processed at a designated municipal facility. Mr. Parker of the NSWMA says the flow-control case ``deals with what's becoming a systemic feature of the way in which states and cities handle trash.''

C & A Carbone, Inc., operates a facility in Clarkstown, N.Y., to process trash received from New York and New Jersey. There, the company separates recyclable materials from nonrecyclable garbage and ships the latter to landfills and incinerating plants in the Midwest. The town sued Carbone for violating a flow-control ordinance requiring that all nonrecyclable trash in the community be processed at a local facility operated under a contract with the town.

The economic stakes are high for the $30-billion-a-year waste-services industry. Nearly 40 municipalities in New York have flow-control regulations, and more than half the states authorize such requirements.

States and cities contend that flow control is necessary to achieve important public goals. Lawyers representing 20 states and scores of cities filed friend-of-the-court briefs in support of Clarkstown. Susan Ashbrook, an assistant attorney general in Ohio, says: ``Flow control helps cities take responsibility for the collection and management of waste, which is a traditional duty of local government.''

Creating a monopoly?

The waste-treatment industry counters that all of these goals can be achieved by other, less-costly means. The industry says the real purpose of flow-control rules is to guarantee sufficient disposal business to pay for expensive municipal facilities.

``Flow control creates a monopoly,'' says Allen Blakey, an NSWMA spokesman. ``This industry needs competition and privatization.'' He adds that disposal costs at municipal facilities can be three times as high as costs at private-sector landfills and other garbage-treatment sites.

As in the differential-fee case, state and local governments face long odds in this case, says Mary Lou Savage of Marquette University Law School in Milwaukee. ``For 50 years, the Supreme Court has struck down nearly all restrictions on interstate commerce; very few challenges to the commerce clause have survived,'' she says. And she notes that for more than a decade the Supreme Court has treated garbage like any other article in commerce - despite arguments by Chief Justice William Rehnquist that states and cities should have wider latitude to regulate waste.

Decisions in the trash-disposal cases, which probably will be issued simultaneously, are expected in the spring.

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