Current Supreme Court rulings limit restrictions on the interstate transport of garbage. However, the federal courts have also said municipalities that provide waste services participate in the market like other businesses. The Commerce Clause restrictions do not apply to public authorities acting as market participants--garbage haulers, owners or operators of their own landfill or transfer stations. Thus, under current law counties may require all local waste to be managed at publicly owned facilities.
The traditional role of municipalities in waste management therefore severely limits the free flow of garbage across state lines, and the sanction of the courts. However, the major importing states have been trying to get federal legislation passed that would further limit interstate waste transport. States like Pennsylvania want to preserve their landfills from solid waste generated in states that generally export their garbage, such as New York.
In 1995, Pennsylvania was the largest garbage importer, hosting 2.7 million tons of waste from New York State, most of it from New York City and Long Island. In the late 1990s Pennsylvania environmental officials and U.S. Rep. Jim Greenwood, a Congressmen from rural Bucks County, PA, lobbied with Rep. Michael Oxley of Ohio and other Midwestern representatives to get "flow control" legislation passed in Congress, which would permit Pennsylvania and other states to control how much garbage flows across their borders. Today Pennsylvania hosts over 9 million tons of out-of-state trash.
Federal flow control would add another layer of restrictions to local flow control, which is authorized today.
FEDERAL FLOW CONTROL LEGISLATION HASN'T GOTTEN OFF THE GROUND
Every year since 1995 federal flow control legislation has been introduced in Congress. Complaining about their limited ability to place restrictions on shipments of unwanted garbage from other states in a letter to the House Commerce Committee, nearly half the nation's governors asked the Committee in 1995 to send a flow control bill to the floor for a vote. A bill giving broad authority to governors to limit and prohibit out-of-state shipments of municipal solid waste passed in the Senate twice in 1997. As discussed elsewhere in this newsletter (The facts on Fresh Kills), Virginia officials recently joined the chorus urging passage of flow control legislation. Federal flow control was again considered in the 1999 Congress. H.R. 378 and H.R. 379, authorizing states to regulate importation of out-of-state and out-of-country solid waste, respectively, up to an outright ban on either, was introduced on January 19, 1999, referred to the House Commerce Committee, Subcommittee on Finance and Hazardous Materials, but never brought to a vote. Senate bill S.533, the Interstate Transportation of Municipal Solid Waste Control Act of 1999, was introduced March 18, with Sen. Arlen Specter responding directly to the closing of Fresh Kills. It, too, failed to reach a vote. The push for tough flow control powers for the states has run out of steam. Rep. Oxley, who used to chair the Subcommittee on Finance and Hazardous Materials, has backed off his support for curbs on interstate waste. In January, 2001, the subcommittee was refocused on environment and waste and its new chair Rep. Billy Tauzin of Louisiana called for a "balanced" solution. This signaled an end to the proposal to allow states to cap imports, introduced in 2000 by the congressional delegations of the major importing states, according to a Jan. 26, 2001 story in the Staten Island Advance.
Durham, North Carolina, in 1999 accepted a bid of $24.05 a ton for its garbage from a Virginia mega-landfill. By comparison, per-ton fees to put garbage in western New York commercial landfills (Ellery in Chautauqua County, CID in the Town of Chaffee, Modern in Niagara County, and High Acres and Mill Seat in Monroe County, for example) in 2002 vary slightly below and above $30.00.
Even if federal flow control legislation isn't likely, and a change of heart by the Supreme Court regarding the free flow of garbage across state lines is even less likely, speculation that legislative action or political pressure short of legislative action will restrict New York City's ability to continue to export its garbage keeps the pressure up to site landfills in western New York, which currently hosts over 95% of the state's permitted landfill space. This is what keeps IWS going in Farmersville, what keeps Casella Waste Systems expanding its market in New York, what keeps te nearly full Al Turi Landfill hanging on, and what has brought waste industry giant Waste Management, Inc. (and its new VP former Attorney General Dennis Vacco) to Albion. There are more speculators in garbage standing in line, looking at nearby towns. We've also seen it happen in Eagle, Allen, and Angelica.
The Commerce Clause "assists the city in safely and inexpensively disposing of our trash," said Jordan Barowitz, a spokesman for Mayor Bloomberg. "Ex- porting our garbage is a major component of the [City's] solid-waste management plan."
"For the first time, officials acknowledge that the city's master plan to rid itself of 24 million pounds of household trash each day has essentially collapsed."