Dormant Commerce Clause Update – 4th Circuit Panel Talks Trash

On December 3, 2013, a Fourth Circuit panel issued an opinion situated at the familiar intersection of Dormant Commerce Clause jurisprudence and trash. Affirming a trial court's grant of summary judgment, the Court turned away a Dormant Commerce Clause challenge to a so-called "flow control" ordinance enacted by Horry County, South Carolina. Sandlands C&D LLC v. Horry County, 2013 U.S. App. LEXIS 24040 (4th Cir.). A copy of the decision is available here.

Despite determined advocacy by the plaintiffs, the constitutionality of Horry County's local solid waste law presented a relatively easy case for the appellate court in several respects. Most importantly, the ordinance restricts the transportation, processing and disposal of locally-generated solid waste in ways that quite closely resemble the waste management system upheld by the United States Supreme Court in its 2007 opinion in United Haulers.1 Indeed, the Fourth Circuit panel described that precedent as "largely dispositive," viewing the earlier New York flow control ordinances as "remarkably similar" to the challenged Horry County law.

As a first similarity, plaintiffs did not challenge on appeal the trial court's finding that the three Horry County "designated" facilities benefitting from the receipt of flow-controlled solid waste were "owned and operated" by a public entity. Thus, by concession, the new exception carved out in United Haulers applied - local laws favoring "clearly public" facilities are per se not discriminatory for purposes of Dormant Commerce Clause analysis.

Notably, the private vs. "clearly public" facility issue was contested before the district court. Plaintiffs had argued below that the Horry County Solid Waste Authority, Inc., a nonprofit corporation, was a private entity. Had that argument prevailed, Horry County's flow control law almost certainly would have been struck down under clear Supreme Court precedent. C&A Carbone v. Clarkstown, 511 U.S. 383 (1994) (declaring unconstitutional local flow control ordinances directing all solid waste to a private facility).

Second, at the level of evidence, the Fourth Circuit agreed with the district court that plaintiffs had been unable to show that Horry County's flow control ordinance imposed any real world impacts on out-of-state businesses. As the Court put it, the law "has only an arguable effect on interstate commerce, even if it does affect intrastate commerce to some degree." That absence of hard proof...