Fifty-two years ago tomorrow, a Japanese surprise attack decimated the U.S. fleet at Pearl Harbor and led President Roosevelt to proclaim Dec. 7 as "a day that will live in infamy."

Tomorrow, the U.S. Supreme Court will hear arguments in a case that could spell disaster for some bond-financed solid-waste facilities, including waste-to-energy plants.

Will tomorrow also be infamous?

The answer to the question rests on whether the court upholds - or strikes down - the constitutionality of laws requiring the disposal of solid waste only at a designated location.

Known commonly as flow-control ordinances, the laws are aimed at providing sufficient levels of trash, and the fees they generate, to pay off bondholders and run the waste facilities.

Without flow control, a number of bond-financed facilities and the underlying bonds themselves could be thrown into jeopardy.

Higher Disposal Fees

In most instances where there is a flow-control law in effect, disposal fees are higher than at neighboring locations. if the court strikes down flow control, trash haulers and others might choose to take their waste elsewhere if the cost of shipping it to an alternate location is less than that charged by the old disposal site.

In that event, officials may have trouble keeping their facilities open, let alone paying off bondholders.

As if local officials don't have enough to fret over, the Supreme Court later in the term will consider whether the ash from municipal waste-to-energy plants must be treated as hazardous. If so, the resulting cost to local governments could increase so much that the plants would not be economically viable. The bonds issued to build them could go up in smoke.

Municipalities today find themselves engaged in a multi-theater battle over how to best handle local environmental issues.

The stakes are enormous.

The two cases, C&A Carbone Inc. v. Clarkstown, N. Y, about flow control, and City of Chicago v. Environmental Defense Fund Inc., about ash, come at a time when municipal solid waste landfill capacity is declining and the amount of waste generated continues to grow.

Between 1988 and 1990, the amount of solid waste produced in the United States increased 8%, from 180 million tons a year to 195.7 million tons a year. The Environmental Protection Agency has estimated that solid waste will grow 13% by the year 2000, to a total of 222 million tons a year.

At the same time, landfill space is dwindling. There were about 10,000 municipal solid waste landfills in 1970, but only about 6,500 were in operation by 1988. The number has fallen even more as a result of more stringent landfill rules issued by the EPA.

Court challenges to municipal autonomy in the field of waste collection and disposal come after centuries of virtually unquestioned authority.

The National Association of Bond Lawyers, in a friend-of-the-court brief filed on behalf of Clarkstown, noted that legislative bodies in the colonies frequently authorized cities to provide for trash removal. Many of those early laws, the group said, designated,or authorized designation of, specific disposal sites, "thus beginning the practice of waste flow control in what is now the United States."

During the first half of the 20th century, open dumps and incinerators were the primary means of getting rid of trash. The federal Clean Air Act changed things in the 1970s, forcing the closure of many municipal incinerators or the installation of expensive pollution control equipment. Likewise, the federal Resource Conservation and Recovery Act required the elimination of open dumps in favor of sanitary landfills.

Nevertheless, state and local governments retained their ability to manage waste within the confines of federal guidelines. Or so they thought.

The C&O Carbone case challenges the constitutionality of flow control laws on the grounds that they interfere with the free flow of goods across state lines. The U.S. Constitution's commerce clause gives Congress exclusive authority to regulate interstate trade, a provision the Supreme Court typically has viewed as barring municipalities from erecting trade barriers.

Out-of-State Waste

For example, in a 1992 case, Chemical Waste Management Inc. v. Hunt, the court struck down an Alabama law that levied a higher tax on the disposal of hazardous waste generated outside the state than on locally generated waste.

"No state may attempt to isolate itself from a problem common to the several states by raising barriers to the free flow of interstate trade," the court said in the Chemical Waste case.

On the same day the justices issued the Chemical Waste decision, they also struck down as unconstitutional a Michigan law that prohibited landfill operators from accepting solid waste that originated outside the county in which their facilities are located. Employing a rationale similar to that employed in the Chemical Waste case, the justices said the state law violated the commerce clause.

The rulings do not bode well for Clarkstown specifically or flow control laws generally. Even though Clarkstown is not trying to keep waste from other jurisdictions from entering its borders, but rather is trying to make sure that locally generated waste does not leave, the principal is the same.

Tomorrow's scheduled arguments in the case could provide insights into whether the justices are inclined to strike down the Clarkstown law or are thinking of possible ways to circumvent the harsh realities that strict adherence to its commerce clause precedent would bring.

An adverse ruling from the Supreme Court could leave municipalities in a complex bind. If they are unable to attract enough waste to facilities to keep them operating and to pay off bondholders, they still will be responsible for finding a way to get rid of solid waste without violating federal law.

The Chicago case poses equally vexing questions.

The case hinges on interpretation of the Resource Conservation and Recovery Act, which provides that a "resource recovery facility recovering energy from the mass burning of municipal solid waste shall not be deemed to be treating, storing, disposing of, or otherwise managing hazardous waste," But the law is silent on whether the ash that results from incineration is exempt from hazardous waste disposal requirements.

In such cases of ambiguity, federal courts usually defer to the regulatory agencies in charge of administering the laws. in this case, the EPA now supports Chicago's position that ash should not be subject to hazardous waste treatment. But the agency previously interpreted the law to mean that the ash was not exempt, a factor taken into account by the U.S. Court of Appeals for the Seventh Circuit when it ruled that ash must be treated as a hazardous waste.

Ruling in the case in January, the appeals court said the "EPA has changed its view so often that it is no longer entitled to the deference normally accorded an agency's interpretation of the statute it administers."

If the Supreme Court decides that ash must be treated as hazardous, municipal costs could increase dramatically. Chicago officials estimate the cost of treating ash as hazardous at $50 million annually, while New York City estimates its disposal costs would increase by more than $200 million a year.

Cost increases of that magnitude would force municipalities to think twice before building or maintaining waste-to-energy plants, a move that could further worsen the nation's trash crisis.

Incineration reduces pressure on landfills by reducing the volume of solid waste by 90% and the mass of waste by about 75%.

Although adverse court rulings in the Clarkstown and Chicago cases could create chaos for municipalities, the defeats could be reversed by Congress.

Because the Constitution's commerce clause gives Congress the right to regulate interstate trade, municipalities could ask lawmakers to give them explicit authority to enact flow-control laws. Likewise, an adverse decision in the ash case could be overturned through congressional legislation clarifying that the ash from waste-to-energy facilities does not need to be treated as hazardous waste.

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