To plan for the long-term management of all municipal solid waste (MSW) generated within their boundaries, state and local governments have enacted laws and ordinances or taken other legal action to allow them to exercise flow control over solid waste generated by residential, commercial and institutional sources. These laws, ordinances and other actions are needed to hold down costs and to ensure that the facilities are able to operate near capacity.
The Supreme Court in C. & A. Carbone v. Town of Clarkstown, NY has invalidated a flow control ordinance that required MSW to be directed to a specific solid waste facility for processing. The Court said the flow control ordinance was unconstitutional because it violates the Commerce Clause. The Court maintained that the ordinance discriminated against interstate commerce by allowing only a favored operator to process waste that was within the town limits. This decision significantly limits state and local governments' ability to implement comprehensive waste management plans and to meet their other health and environmental responsibilities. In particular, the decision will impair the ability of jurisdictions to raise sufficient revenues to finance such programs through user charges rather than general taxes if the flow control tool is not available to them. Furthermore, the decision may undermine the security for numerous existing governmental projects and billions of dollars in outstanding solid waste bonds to the detriment of issuers, citizens, and bondholders alike.
The Government Finance Officers Association supports federal legislation on waste flow control that will allow governmental entities to continue to carry out their responsibility to manage municipal solid wastes within their boundaries. Such legislation should provide that
- existing state or local government flow control laws, ordinances and other legal provisions granting waste flow control authority and any existing debt secured under such laws or ordinances should be recognized;
- flow control authority should extend to municipal solid waste generated from all sources; and
- the designation of any facilities in the future under an ordinance or other legal action authorizing flow control should provide ample opportunity for all interested parties to have their facilities considered for designation.
- Publication date: June 1994