Trash isn't government monopoly, high court rules

May 17, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Curbing cities' power to turn their citizens' trash into energy plus a profit, the Supreme Court struck down yesterday a local government monopoly over the processing of town waste.

In a 6-3 ruling that raised constitutional doubts about laws in 21 states, the court said that a small community in New York state acted unlawfully when it required everyone in town to dump at a single town-approved plant.

That is commercial discrimination that would take business away from other local processing plants and interfere with the flow of trash among the states, the court declared in an opinion written by Justice Anthony M. Kennedy.

The decision was the second by the court this month to limit the rapidly expanding waste-to-energy efforts of local governments. In a May 2 decision that seems sure to add to local waste-disposal costs, the court ruled that toxic ash from city incinerators cannot be buried in regular landfills.

Yesterday's ruling involved an approach that has been spreading across the country: passing so-called "flow control" laws. Laws in 21 states allow cities to enact such laws, which forbid anyone in a community to send trash out of town before it has been processed in town. Maryland is not among those 21 states.

Communities have "recovery" plants that do the initial sorting and packing. The monopoly given to those plants enables them to charge a fee that will make the plants profitable, thus allowing the local government to recover the cost of building and operating the facility. Some of those plants burn at least some of the trash, creating energy, and thus have less to send off to be buried in a landfill.

Advocates of the waste-to-energy cycle estimate that burning 1,000 tons of solid waste produces as much energy as burning 1,600 barrels of oil.

The "flow control" law at issue in the Supreme Court yesterday was passed in 1990 in the New York community of Clarkstown, in the Hudson Valley. Told by federal officials to close its landfill, the city hired a private company to build a processing plant and passed an ordinance requiring town residents to take their trash through that facility.

The Clarkstown law was challenged by a local trash company that recycled trash for a fee but sent the unrecycled part to landfills in other states. Clarkstown police stopped trucks from that company as they left town, leading to a court fight between that trash hauler and the town over the constitutionality of the local monopoly law.

Justice Kennedy's opinion found that the Clarkstown law was "a xTC financing measure" to assure that the local plant turned a profit at the expense of the interstate movement of trash. Justice David H. Souter, writing for the three dissenters, said the law had no impact on interstate business because its only real effect was on the citizens of the town, who had to pay for their own trash to be processed for disposal.

Who owns Ellis Island?

In another action yesterday, the court said that it would allow New Jersey to sue New York state, in a lawsuit directly before the justices, rather than in a lower court, to determine who owns historic Ellis Island in New York harbor.

Ellis Island was the entry port for about 17 million immigrants to the United States; it was the first landing for most immigrants through 1954. The federal government owns most of the island, which is part of the Statue of Liberty park. But the two states are arguing mainly over which state can control the development of Ellis Island.

It is expected to take several years for the interstate boundary dispute to be decided by the Supreme Court. It will be first referred to a "special master" to gather evidence and suggest a decision.

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