A case now in federal court could have a profound effect on the future of flow control if Congress doesn't pass legislation on theissue this session, solid waste analysts say.
Judges on the U.S. Third CirCuit Court of Appeals in New Jersey are deliberating over what is commonly known as the Atlantic Coast case. In the aftermath of the U.S. Supreme Court's decision in Carbone v. Clarkstown, N.Y. last May, Atlantic Coast Demolition & Recycling, a private hauler, filed an appeal to an earlier ruling that denied the company's challenge of New Jersey's strict flow control laws. The Carbone decison struck down flow control laws as a violation of the Commerce Clause of the Constitution.
Flow control refers to the ability of municipalities to dictate where solid waste can be disposed of. Ensuring business for solid waste facilities in this fashion generates guaranteed streams of revenues that have helped secure billions of dollars of municipal securities.
The ruling on Atlantic Coast Demolition & Recycling's appeal is expected to be a strong indicator of whether lower federal courts will strictly follow the spirit of Carbone, or if exceptions can be found.
On Sept. 13, arguments were presented before the Third Circuit Appeals Court in Atlantic Coast Demolition & Recycling Inc. v. Atlantic County Board of Freeholders and Pollution Control Financing Authority, Camden County Board of Freeholders, Atlantic County Utilities Authority, and N.J. Department of Environmental Protection and Energy Commissioner Scott A. Weiner.
Gall M. Lambert, New Jersey deputy attorney general, said she is "cautiously optimistic" that the court will deny Atlantic Coast's apppeal, noting that a decision is possible by the end of the month.
"The court will issue a decision when [the judges] are ready, but there has been a motion to accelerate the case," Lambert said. "I don't anticipate it will be months before a decision" is made.
If Congress is able to pass a law on flow control, the decision in the Atlantic Coast case will be rendered "irrelevant," according to Mark R. Zehner, a partner at Saul, Ewing, Remick & Saul.
However, although there is momentum in Congress to enact such legislation, there is only a short time remaining in the current session. Congressional failure to pass a measure Would push the tiredtableon legislation back for at least several months, making the Atlantic Coast decision even more important than previously thought, Zehner said.
"If Congress doesn't act, all bets are off. A lot of haulers will say 'maybe it is worth my while to fight this,' "he said. "Solid waste authorities will desperately need a case that will affirm that there are legitimate needs for flow control. They're going to be up a creek without a paddle if New Jersey's system doesn't survive Carbone, because if New Jersey's system doesn't hold water, nobody's will."
New Jersey has one of the nation's most highly regulated solid waste industries and is heavily reliant on flow control, so proponents are hopeful that the Third Circuit court will rule against Atlantic Coast's Challenge. However, market sources say a favorable ruling for Atlantic Coast could strike a death knell for flow control. baning the enactment of federal legislation.
The prospect of federal action on flow control remains uncertain as Congress nears the end of its current session.
On Sept. 29 the House passed a bill that would grandfather existing flow control laws and restore much of the authority lost by state and local governments in the Carbone decision. However, it appears that efforts in the Senate to pass a similar measure have met resistance from senators sympathetic to private industry. A compromise bill that wotdd grandfather existing flow control authority but prevent new flow control financings is currently being debated in Congress.