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The AEI Federalism Project conducts and sponsors original research on American federalism, with particular emphasis on federal and state business regulation, legal developments and the role of the courts, and the prospects for rehabilitating a constitutional federalism that puts states in competition for productive citizens and businesses. Through its AG Watch, the Federalism Project monitors and comments on the increasingly active role of state attorneys general.

The AEI Federalism Project disseminates its research results and opinions through frequent conferences and other public events; through the Federalism Outlook, a newsletter written by the Project’s Director, Michael S Greve; through its website; and through books and publications in scholarly journals.

Supreme Court Update

May 2, 2007

Waste Not

posted by Michael Greve @ 9:50 am

United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority, decided April 30, is the Supreme Court’s latest pronouncement on state and local waste management. Two New York Counties created a governmental waste management authority. Partly because the Authority provided eco-baubles from composting to recycling, tipping fees at its facilities were much higher than those at out-of-state facilities. To prevent private citizens and haulers from disposing waste out-of-state at lower cost, the counties enacted a “flow control” ordinance, providing that private haulers must deliver all solid waste generated in the counties to the Authority’s sites. C&A Carbone, Inc. v. Clarkstown, 511 U.S. 383 (1994), had held that flow control measures violate the dormant Commerce Clause when the local facility is municipal but, technically speaking, privately owned. United Haulers holds that such measures do not violate the Constitution when the local facility is public. States and local governments may not benefit local businesses by discriminating against interstate commerce, but they may benefit themselves. Let’s hear it for local monopoly! A different ruling, Chief Justice Roberts wrote for the majority, would be like Lochner (slip op. at 15-16).

Justice Scalia concurred for the most part, reiterating his long held view that the non-existent dormant Commerce Clause should be enforced only to the extent absolutely required by stare decisis. Justice Thomas also concurred, arguing that the dormant Commerce Clause should be ditched in toto. Justice Alito submitted a terrific dissent, joined by Justices Kennedy and Stevens.