The Need for a Rational State and Local Response to Carbone: Alternate Means to Responsible, Affordable Municipal Solid Waste Management
By Jennifer M. Anglim
INTRODUCTION
The pinnacle Supreme Court waste case, C&A Carbone, Inc. v. Town of Clarkstown,1 and subsequent lower court waste cases illustrate the conflict between conservative ideals of a free national market and strong local power in the environmental arena. The waste cases are a microcosm of the familiar federalism debate between American conservatives and liberals regarding the power of the national government vis-à-vis the states and raise questions about the institutional competence of the judiciary vis-à-vis the legislature. In sum, the federal municipal solid waste (“MSW”) management jurisprudence has followed intertwined and often-conflicting legal theories and precedents, making it difficult for states and municipalities to plan for MSW management.
America is currently facing a “waste crisis.” “Waste crisis” is a term commonly used to describe the vast quantity of garbage produced in the United States each year in the face of closing landfills. Although some observers question the existence of a genuine “crisis,” <tilde>, FN='8'> MSW management is undoubtedly a pressing issue facing our country. The United States generates approximately 210 million tons of household waste per year. Since the 1980s, the glaring problem of waste disposal has become visible to the general public. For example, a prominent news story chronicled the journey of a garbage barge that was unable to find a welcoming dumping ground, describing how the barge remained adrift for 162 days while loaded with 3,168 tons of garbage.9 In another example, as early as 1982, the City of Philadelphia shipped 13,500 tons of waste to Panama, almost five times the quantity aboard the garbage barge, only to have Panama reject the shipment. Seventeen months elapsed before Philadelphia found an alternative disposal site for its garbage. Furthermore, the Environmental Protection Agency (“EPA”) predicts that the United States will generate 222 million tons of garbage per year by the year 2000 and 253 million tons per year by the year 2010. As landfills close around the country, local producers and haulers of waste look to other states and countries as final disposal sites but often encounter local resistance. The pre- Carbone Supreme Court waste cases struck down state- and locally erected barriers designed to prevent the acceptance of foreign waste.
This Note attempts to fill the void in the literature regarding the limited MSW management options available to state and municipal governments by proposing alternative means for creating responsible, environmentally sound, and economically stable MSW management regimes in the post- Carbone legal arena. Part II describes the Carbone decision and its devaluing effect on municipal-bond financing of waste transport. Part III discusses post-Carbone flow control cases and the creative means that municipalities have devised in their attempts to make their MSW management regimes survive in the post- Carbone era. Part III argues that outsourcing of MSW management through a competitive bidding process and incorporation of flow control clauses into outsourcing contracts provides the best model for municipalities to follow in developing MSW management regimes. Part IV concludes that Congress should refrain from enacting additional legislation in this area until the Supreme Court grants certiorari to a future waste case and decides to invalidate state and municipal contracts that outsource MSW management.
The pinnacle Supreme Court waste case, C&A Carbone, Inc. v. Town of Clarkstown,1 and subsequent lower court waste cases illustrate the conflict between conservative ideals of a free national market and strong local power in the environmental arena. The waste cases are a microcosm of the familiar federalism debate between American conservatives and liberals regarding the power of the national government vis-à-vis the states and raise questions about the institutional competence of the judiciary vis-à-vis the legislature. In sum, the federal municipal solid waste (“MSW”) management jurisprudence has followed intertwined and often-conflicting legal theories and precedents, making it difficult for states and municipalities to plan for MSW management.
America is currently facing a “waste crisis.” “Waste crisis” is a term commonly used to describe the vast quantity of garbage produced in the United States each year in the face of closing landfills. Although some observers question the existence of a genuine “crisis,” <tilde>, FN='8'> MSW management is undoubtedly a pressing issue facing our country. The United States generates approximately 210 million tons of household waste per year. Since the 1980s, the glaring problem of waste disposal has become visible to the general public. For example, a prominent news story chronicled the journey of a garbage barge that was unable to find a welcoming dumping ground, describing how the barge remained adrift for 162 days while loaded with 3,168 tons of garbage.9 In another example, as early as 1982, the City of Philadelphia shipped 13,500 tons of waste to Panama, almost five times the quantity aboard the garbage barge, only to have Panama reject the shipment. Seventeen months elapsed before Philadelphia found an alternative disposal site for its garbage. Furthermore, the Environmental Protection Agency (“EPA”) predicts that the United States will generate 222 million tons of garbage per year by the year 2000 and 253 million tons per year by the year 2010. As landfills close around the country, local producers and haulers of waste look to other states and countries as final disposal sites but often encounter local resistance. The pre- Carbone Supreme Court waste cases struck down state- and locally erected barriers designed to prevent the acceptance of foreign waste.
This Note attempts to fill the void in the literature regarding the limited MSW management options available to state and municipal governments by proposing alternative means for creating responsible, environmentally sound, and economically stable MSW management regimes in the post- Carbone legal arena. Part II describes the Carbone decision and its devaluing effect on municipal-bond financing of waste transport. Part III discusses post-Carbone flow control cases and the creative means that municipalities have devised in their attempts to make their MSW management regimes survive in the post- Carbone era. Part III argues that outsourcing of MSW management through a competitive bidding process and incorporation of flow control clauses into outsourcing contracts provides the best model for municipalities to follow in developing MSW management regimes. Part IV concludes that Congress should refrain from enacting additional legislation in this area until the Supreme Court grants certiorari to a future waste case and decides to invalidate state and municipal contracts that outsource MSW management.
