In the summer of 2007, while clerking in a federal district court, I had the privilege of helping decide an issue of first impression in the 11th Circuit—whether municipal “flow control” laws are valid under the dormant Commerce Clause. Basically, flow control is simply the practice of local governments restricting exportation of solid waste from their jurisdictional boundaries, and is often enacted as a financing measure for local waste disposal facilities. The validity of such laws has been hotly debated within both legal academia and the Supreme Court itself.
Complicating the matter, the Supreme Court had just released their path-breaking holding, Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 127 S.Ct. 1786 (2007), which significantly altered the legal framework for analyzing the validity of flow control laws specifically, and perhaps the dormant Commerce Clause generally. The decision held that local flow control ordinances that required all waste be delivered to publicly owned and operated facilities, and that treated all in-state and out-of-state private haulers the same, do not discriminate for purposes of the dormant Commerce Clause. In other words, under this new public-private distinction publicly owned and operated waste disposal facilities are not per se invalid, but rather should be analyzed under the Pike balancing test.
The holding, however, left several lingering, and vital, questions unanswered for the lower courts confronted with flow control challenges and for local governments seeking to resolve their environmental and financial problems while conforming to the limits of the dormant Commerce Clause. Indeed, presently no article has been published post-United Haulers that both clearly elucidates the decisions unanswered questions and attempts to set forth a model for how those ambiguities should be resolved. This article, utilizing the Coase Theorem and case precedent, is that first attempt.
Available at: http://works.bepress.com/william_cantrell/1/