AMERICAN ASSOICATION OF CHEMICAL ENGINEEERS: 2007 MEETING UPDATE ON SOLID AND HAZARDOUS WASTE

摘要

After what most thought was one of the U.S. Supreme Court’s clearest decisions pertaining to application of the so-called “dormant commerce clause” the Supreme Court has added a new twist: Public entities or publicly funded entities can hoard and discriminate as long as private entities are treated equally. In April of this year, the Supreme Court handed down a new flow control decision in United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, 127 S. Ct. 1786; 167 L. Ed. 2d 655; 64 ERC (BNA) 1129 (2007). The Court’s opinion was that requiring all garbage generated in a region to go to a public benefit corporation’s disposal facility was not per se discrimination on interstate commerce. Four of the six justices noted that the decision did not reverse their previous decision in C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383, 114 S. Ct. 1677, 128 L. Ed. 2d 399 (1994), but two Justices, Scalia and Thomas, felt that Carbone was wrong and opined that the dormant commerce clause did not exist except in the minds of the Court. Three justices, Alito, Stevens, and Kennedy, dissented and believed that the public ownership made no difference in application of the dormant commerce clause.