134134 D Of3/14/2013

13-1134

Couia (Iv . -CV TIT

%A.- 108 CAD, LLC and EXPRESS L SERVICE, LLC Plaintiffs-Appellants,

V.

COUNTY OF HORRY an& e HORRY COUNTY SOLID WASTE AUTHC:"....:TY, INC. Defindanis -Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

BPaEF /4/Viri CURIAE of the DELAWARE COUNTY SOLID WASTE AUTHORITY, ECOMAINE, CITY and COUNTY of HONOLULU, INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION, LANCASTER COUNTY SOLID WASTE MANAGEMENT AUTHORITY, MARION COUNTY, OREGON,

MONTGOMERY COUNTY, OHIO, NATIONAL ASSOCIATION OF COUNTIES, SOLID WASTE ASSOCIATION OF NORTH AMERICA, SOLID WASTE AUTHORITY of CENTRAL

OHIO, SOLID WASTE AUTHORITY of PALM BEACH COUNTY, SOLID WASTE DISPOSAL AUTHORITY of the CITY of HUNTSVILLE, SOUTH CAROLINA ASSOCIATION of

COUNTIES, PINE BELT REGIONAL SOLID WASTE MANAGEMENT AUTHORITY, SPOKANE REGIONAL SOLID WASTE SYSTEM, WASATCH INTEGRATED WASTE

MANAGEMENT DISTRICT and the YORK COUNTY SOLID WASTE and REFUSE AUTHORITY

IN SUPPORT OF DEFENDAN17S-APPELLEES and

AFFIRMANCE OF THE ORDER ON APPEAL

June 14, 2013

Scott M. DuBoff Jeffrey C. Young Garvey Schubert Barer 1000 Potomac Street, NW Fifth Floor Washington, DC 20005 (202) 965-7880 Counsel for Aniici Curiae

Additional Counsel Listed on Inside Cover

Appeal: 134134 Doc: 33

Filed: 06/14/2013 Pg: 2 of 35

Michael 'EX. Gitlin 230 North Monroe Street Media, PA 19063

Counsel fir Delaware County Solid Waste Authority

Nicholas Nadzo Mark Bower Jensen Baird Gardner & Henry Ten Free Street P.O. Box 4510 Portland, ME 04112

Counsel for ecomaine

Dana Viola Deputy Corporation Counsel Department of Corporation Counsel City and County of Honolulu 530 South King Street, Room 110 Honolulu, Hawaii 96813

Counsel for the City and County of Honolulu

Alex Henderson Hartman Underhill & Brubaker 221 East Chestnut Street Lancaster, PA 17602

Counsel for Lancaster County Solid Waste Management Authority

Mathias H. J:kck, Jr. Montgomery County, Ohio Prosecuting Attorney 451 West Third Street P.O. Box 972 Daytoa, OH 45422

Counsel for Montgomery County, Ohio

Michael Belarmino Associate General Counsel National Association of Counties 25 Massachusetts Avenue, NW Washington, DC 20001

Counsel for National Association of Counties

Moran M. Pope, 111 Pope & Pope, P.A. 110 South 40th Avenue Suite 10 (39402) Post Office Box 17527 Hattiesburg, MS 39404

Counsel for Pine Belt Regional Solid Waste Management Authority

Barry Shanoff 401 E. Jefferson Street, Suite 206 Rockville, MD 20850

Counsel for Solid Waste Association of North America

Scott Norris

Michael C. Mentel Assistant Legal Counsel

Chief Legal Officer Marion County, Oregon

Solid Waste Authority of Central Ohio 555 Court Street, NE

4239 London Groveport Road P.O. Box 14500

Grove City, OH 43123 Salem, OR 97309

Counsel for Solid Waste Counsel for Marion Authority of Central Ohio

County, Oregon

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M. Clifton Scott Jr. Senior Staff Attorney

South Carolina Assoc. of Counties 1919 Thurmond Mall Columbia, SC 29201

Counsel for South Carolina Association of Counties

Elizabeth Schoedel Assistant City Attorney

City of Spokane 808 West Spokane Falls Blvd. Spokane, WA 99201

Counsel for Spokane Regional Solid Waste System

Charles H, Younger P..0. Box 2795 Huntsville, AL 35804

Counsel/Or Solid Waste Disposal Authority of the City of Huntsville, Alabama

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tULS 26. NSCLOSURF STATEMENT

Several of the amid are non-profit corporations, none of which have issued

shares or stock that is owned by any other entity. No publicly held corporation has a

direct financial interest, as described in Local Rule 26.1(a)(2)(B), by virtue of a

relationship to any of the amid.

. DuBoff cott DuBoff

.:, 13-1134 Doc: 33

Pg:

RULE 26.1 DISCLOSURE STATEMENT i

TABLE OF AUTHORITIES

STATEMENT OF INTEREST OF AMICI 3

SUMMARY OF 7

A. United Haulers Coatrols This Case 9

13. Waste Flow Control to a Public Facility Is Not Facial Discrimination or an Undue But den on Commerce Because of the Uniquely Public Functions 12

1. Solid Waste Management is a "Typical and Traditional Concern of Local Government," Fundamentally Distinct from Entrepreneurial, For-Profit Activity 12

2 Essential Differences Between Appellants' Collection- Disposal Businesses and Horry County's Integrated Waste Management Services Further Preclude a Finding of Discrimination Under the Comixm 15

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!r g. ohy CASES Page

Brotherhood of Locomotive Firemen & Enginemen V. Chicago, Rock Island & Pacific Railroad Co., 393 U.S. 129 (1968) ..... .14

& A Carbone, Inc, v. Town of Clarkstown, 511 U.S. 383 (1994) 7

California Reduction Co. v. Sanitary Reduction Works, 199 U.S.

Gardner v. Michigan, 199 U.S. 325 (1905) 9

General Motors Corp. v. Tracy, 519 U.S. 278 12

Oregon Waste Systems, Inc. v. Department of Environmental Quality, 511 U.S. 93 4, 20

Pike v. Bruce Church, inc., 397 U.S. 137 8

Sandlands C&D, LLC v. County of Harry, 716 S.E.2d 280, 285

United Haulers As 'n, Inc. v, Oneida .Herkimer Solid Waste Mgmt, Authority, 550 U.S. 330

FEDERAL STATUTES

Resource Conservation and Recovery Act

42 U.S.C. § 6901(a)(4) ypqsv.. 1,,,i 0 ”11 . 8 V ,IIIII,.‘". .qVibirtiV.”9 4.1rYggItaan 2 9it.P.VVIF•i97.5,/tA4.41Vp,•.4at..411,,,fr 3

42 U.S.C. § 6902(a)(1)•••• ■ ••10"04”7”,o9ifbyp¢“V.V.P14,74,08.F.faapsaaa.80,7%”"*U“t.4440“1.1 ■ 40.4”990.1.reat.,4

42 U.S.C. § 6941 4

42 U.S.C. § 6942

42 U.S.C. § 6943 4

FEDF-AL RIX 3 and REGULAJJJY

STATE CONSTITUTII

TraS

Wash. COnSt Are. § 11 .......i.o.“.“. 8 . 08,,,, .." 0 "DBOVBsitqA".."V”."4. 4 11 ”0".“0"tift.“1,11116tiaqt.3

Ala. Code

paz"Itteazetx,ese sp.": 3

Doc: Pq:

Me. Rev. Stat. Ann. Title 38 § 1305.1

Ohio Rev, Code Ann. § 3734•52(A) and (B) • 4 • 9 ■1 • 06 0,1 1,1 •4 41•• ■ ••• ■ 1111, 110 ■ •• ■ 01.9",/,1 11•11 ■ ••••••• ■ •••• ■■ ••1,441,14 ■ •••••• ■ • ■ ••,14••• ■ •••14

§ § 3734.55

Or. Rev. Stat. § 459.065........................................................................................ .. ..... ..............3

53 Pa. Cons. Stat. § 4000.303(a) .......................................................... . ............................................3 § 3

Utah Code Ann.

Wash. Rev. Code

§

MISCELLANEOUS

Joint Appendix, United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330 (2007)

Public Meetings on Municipal Solid Waste Flow Control, 58 Fed. Reg. 37,477 (July 12,

U. S. Environmental Protection A gency, . Municirfai Solid Waste Generation, Recycling, and Disposal in United States: 2010 Facts and Figures 4

U.S. Environmental Protection Agency, Report to Congress on Flow Contr©l and Municipal Solid Waste, EPA 530-R-95-008 (Mar. 12, 13, 14

.11,en9•0•41,1•Sv.sarnen ■aa,491.•94.8•1 44111 ..“."0,1080.44a6.06.,031..9iailt*Ve"X`79”9* ...15

Doe:

interstate Waste and Flow Control: Hearing On S. 1194 And S. 2034 &lbre The Senate Comm. On Env't And Pub. Works, 107th ng, 995 (2002) (Statement of Mark Lennon and Patrick Pinkson- .Burki rallyin g and Community Assistance Section, W Division, New Hampshire Department Pnvirom oental Services).

U.S. Environmental Protection Agency, The Solid Waste Dilemma: An Agenda for Action, EPA/530-SW-8-019 (Feb.

Facing America's Trash: What Next For Municipal Solid Waste? Office of Technology Assessment, 101st Congress

3

U.S. Environmental Protection Agency, Variable Rates in Solid Waste: Handbook For Solid Waste Officials, EPA1530-SW-90-084A, Vol. 14

iv

i3-1134 c - 33 Fik.u;J:1---i12013 Pg: 9 o 35

Amici curiae Delaware County Solid Waste Authority, et al., submit this brief

in support of Appellees County of Horry, South Carolina, and the Horry County

Solid Waste Authority, Inc, (referred to collectively as "Horry County"). Arnie/

include city and county governments, special authorities, and related associations

responsible for (or whose members are responsible for) municipal solid waste

management in their communities and dedicated to implementing federal and state

policies that encourage "integrated waste management" (brief descriptions of each of

the amici are in the Appendix to this brief). 2 A critical tool for achieving integrated

waste management is "flow control" authority, that is, local ordinances or

regulations that designate the recycling, waste processing, and disposal facilities for

serving a given community. The public benefits of flow control ordinances go well

beyond simply determining where waste is disposed, or who gets to process it.

Appellants and Appellees have each consented to the filing of this brief No party's counsel authored this brief in whole or in part and no party, its counsel, or other person with the exception of the amici curiae, their members or their counsel contributed money that was intended to fund preparing or submitting this brief.

2 The term "municipal solid waste" (or "MSW") means "residential and commercial solid wastes generated within a community." 40 C,F,R. § 240.101(q). "'Integrated waste management' refers to the complementary use of a variety of waste management practices," including reuse of products, recycling of materials, waste-to-energy combustion, and landfilling "to safely and effectively handle the municipal solid waste stream with the least adverse impact on human health and the environment." The Solid Waste Dilemma: An Agenda for Action, U.S. Environmental. Protection Agency, EPA/530-SW-8-019, at 16 (Feb. 1989) (cited below as "Agenda for Action").

Amy, •l: 2.34

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Instead, as amici show in this brief, flow control ordinances help communities

achieve in an environmentally-responsible manner the wide array of objectives that

are key components of integrated waste mallau,olient.

In United Haulers Ass 'n, Inc. v. Oneida-Herkimer Solid Waste ltigInt

Authority, 550 U.S. 330 (2007), the Supreme Court ruled that a flow control

ordinance that benefits a public facility while treating all private enterprise (local

and non-local) alike does not violate the Commerce Clause. The flow control

ordinances upheld by the Supreme Court in United Haulers are legally

indistinguishable from the Horry County flow control ordinance, Ordinance 02-09,

at issue in this appeal. In that regard, United Haulers concluded that local

government may choose to favor public facilities without running afoul of the

Commerce Clause, and central to the Supreme Court's reasoning was its recognition

that local government carries the unique "responsibility of protecting the health,

safety, and welfare of its citizens" and that "[wlaste disposal is both typically and

traditionally a local government function." Id. at 342, 344. That was the context for

the Court's closely related conclusion that a flow control ordinance favoring a public

facility used in implementing governmental obligations does not raise the economic

protectionism concerns that invite close scrutiny under the Commerce Clause.

As already noted, Horry County's flow control ordinance is essentially

identical to the ordinances upheld in United Haulers, and the district court properly

2

Appeal: 13-1134 Doc 33 06114/2.0_ Pg: 1.1 of 35

dismissed Appellants' chalkne to the Harry County ordinance. The district court

carefully applied the analytical framework set forth in United Haulers, including

proper deference to the legislative ju daent of Harry County in the performance of

its public duties, and amici respectfully urge this Court to affirm the district court's

order.

0

I

Amici's interest in this case arises from the ever increasing volume of

municipal solid waste generated in the United States, for which primary

responsibility falls on the shoulders of local government. In that regard, the

Supreme Court has long recognized that authority over solid waste management is

inherent in the police power of local government. Cal. Reduction Co v. Sanitary

Reduction Works, 199 U.S. 306 (1905); Gardner v. Mich., 199 U.S. 325 (1905).

Congress too has expressly acknowledged the leadership role played by local

government in managing municipal solid waste. The Resource Conservation and

Recovery Act (RCRA) codifies recognition of that police power authority, see 42

U.S.C. § 6901(a)(4) ("the collection and disposal of solid wastes should continue to

be primarily the function of State, regional, and local agencies"), as do the laws of

' -1134 Doc: 33 Filed: 06/14/2013 Pq: 12

essentially every state. 3 The volume of municipal waste generated in the United

States has increased by nearly 65 percent since 1980, exceeding 250 million tons in

2010, Municipal Solid Waste in the United States: 2010 Facts and Figures, U.S.

EPA (available at h a ov/e aste/nonhaz/munic al/ s 99.htm).

Given the broad range of public health, environmental, and economic issues

involved, municipal solid waste "present[s] these communities with serious

financial, management, intergovernmental, and technical problems." See 42 U.S.C.

§ 6901(a)(3); see also Or. Waste Sys. v. Dep't of Envtl Quality, 511 U.S. 93, 109

See, e.g., Or. Rev. Stat, § 459.065 (broad authority conferred on local government for solid waste management, which is "a matter of statewide concern"); 53 Pa. Cons. Stat. §§ 4000.303(a), 4000.304(a) (Pennsylvania municipalities have primary responsibility for processing and disposal of locally generated municipal waste); Me. Rev. Stat. Ann. Title 38, § 1305.1 ("Each municipality shall provide [for] solid waste disposal services for domestic and commercial solid waste generated within the municipality"); Ala. Code § 22-27.48 (counties and municipalities responsible for assuring proper management of solid waste); Utah Code Ann. § 19-6-503 (all counties, special service districts and municipalities must provide adequate capacity for solid waste generated within their jurisdiction). See also Wash. Const. art. XI, § 11 (Washington municipalities granted sanitation authority equivalent to authority of the state legislature).

4

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(1994) (describing municipal waste management as a "vexing national problem")

(Rehnquist, CI, dissenting). 4

These factors represent a reality of solid waste management which may be

referred to as "The Second Law of Garbage" — absent government intervention,

management of municipal solid waste will generally default to the lowest cost (in

terms of short-term costs) and frequently less environmentally sound alternatives.

See Facing America's Trash: What Next For Municipal Solid Waste?, Office of

Technology Assessment 101st Cong., at 275 (Oct. 1989); see also Agenda for Action

at 8 (describing the "First Law of Garbage" "Everybody wants us to pick it up,

4 Consistent with those concerns, a principal RCRA objective is detailed state and local solid waste management planning, including emphasis on assuring capacity adequate to meet the affected communities' "present and reasonably anticipated future needs." 42 U.S.C. § 6941; see also id, §§ 6902(a)(1), 6942 and 6943. EPA has noted RCRA's "great e):'0,oha.sis" on state, regional and local planning, which, among other things, "must provide for adequate recycling and disposal capacity and must address [waste management] facility planning and development." Report to Congress on Flow Control and Municipal Solid Waste, U.S. EPA, EPA 530-R-95-008, at. 1-2 (Mar. 1995), available at http://www.epa.gov/epaoswer/non-hwirnuncpliflowarl.htm (cited below as "Report to Congress on Flow Control"). See also, e.g., Wash. Rev, Code §§ 70.95.080 and 70.95.090(3) (each county to prepare a comprehensive solid waste management plan including "a program for the orderly development of solid waste handling facilities in a manner consistent with plans for the entire county" and "a plan for financing both capital costs and operational expenditures"); Ohio Rev. Code §§ 3734.52(A) and (B), 3734.55 and 3734.53(A) (each county required to participate in a solid waste district for the purpose, among other things, of preparing a solid waste management plan providing for proper management of municipal solid waste and certifying availability of sufficient solid waste management capacity to serve county residents for a ten-year minimum period).

5

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and nobody wants us to put it down"). Flow control changes that dynamic by

facilitating implementation of the environmentally-preferable waste management

infrastructure alternatives selected by the affected community. See Public Meetings

on Municipal Solid Waste Flow Control, 58 Fee 37,477, 37,478 (July 12,

1993) (referring to the more active role of state and local government in integrated

waste management planning, EPA describes flow control as a "key tool" for

implementing such plans). See also Agenda for Action at 16-21 (describing

hierarchy of waste management methods, which are, in order of priority, waste

reduction and minimization, recycling, energy recovery, and sanitary landfill

disposal).

This is the context in which Horry County and the atnici (or the members of

the association amid) — as well as many other local governments — have turned to

flow control to effectuate their waste management decisions, including selection of

the waste management programs and infrastructure best suited for their

communities. Such environmentally proactive waste management is quite expensive

and often very difficult to develop and operate without use of flow control, which

facilitates implementation of the affected communities' determinations regarding the

waste management programs and infrastructure best suited for their needs and

circumstances. While the community's choices may self-impose more short-term

expense, flow control is a highly cost effective and efficient means for the

6

13-1134 Doc: 33 Filed: 06/14/20:13 Pc. : 15 of

community to counteract the attraction of the lower short-term costs of

environmentally less desirable alternatives. In short, like Horry County and scores

of other local governments, amici (or their members) have primary responsibility for

municipal solid waste management in their communities, and flow control is a

fundamentally important tool in meeting that core governmental responsibility for

protection of public health and the environment.

T

The district court correctly rccognizcsi that ase is controlled by the

Supreme Court's decision regarding analogous flow control ordinances in United

Haulers. First and foremost, the district court recognized that Horry County

Ordinance 02-09 benefits a clearly public entity, the Horry County Solid Waste

Authority, in performing one of the most fundamental and traditional roles of local

government — solid waste management. On appeal, Appellants do not dispute this

critical fact. Second, the district court recognized that Horry County's flow control

ordinance draws no distinction favoring local private interests over other private

interests. In United Haulers, the Supreme Court instructed that flow control

ordinances meeting these criteria do not offend the Commerce Clause, either as

facial discrimination subject to per se invalidity, or as an undue burden on interstate

commerce.

7

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The district court's order is fully consonant with the public policy

considerations and factual context that underlie .t.',Fo'eed Haulers. Central to the

Supreme Court's reasoning was the fact that "States and municipalities are not

private businesses — far from it," and instead are " ,;,=]cti with the responsibility of

protecting the health, safety, and welfare of its ns." 550 U.S. at 342. While

Appellants' entrepreneurial activity is narrowly confined to waste collection and

disposal, Horry County and other local governments shoulder a much broader array

of public responsibilities associated with sustainable management of municipal solid

waste under an integrated waste management approach. For that reason, when a

local government decides, through the political process, to favor a public entity

through a flow control ordinance, while treating all private entities alike, it does not

raise the private marketplace protectionism concerns that underlie the Supreme

Court's dormant Commerce Clause jurisprudence. In short, the district court

properly rejected Appellants' "invitationn to rigorously scrutinize economic

legislation passed under the auspices of the police power." Id. at 345. The district

court's ruling was correct and should be upheld.

8

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11.114JENT

The Ditailet Court Correctly Applied United Haulers in Uphorithig Horry County's Flow Control Or, 1mtAce

A. United Hauler- Controls This Case

Horry County's Ordinance 02-09, Joint Appendix ("J.A,") 53-61,

materially indistinguishable from the pair of flow control ordinances upheld in

United Haulers, and the district court was correct to apply the same analysis and

reach the same result. Horry County's flow control ordinance, like the

ordinances at issue in United Haulers, requires disposal of solid waste at a

publicly-owned facility — that is, a landfill owned by the Horry County Solid

Waste Authority or a publicly-owned disposal facility "designated" by the Solid

Waste Authority. This benefit to a public facility is what distinguishes Horry

County's flow control ordinance and the United Haulers ruling from the

Supreme Court's earlier decision in C&A Carbone, Inc. v. Town of Clarkstown,

511 U.S. 383 (1994), where the designated facility (a waste transfer station) was

privately owned and operated. Moreover, while Ordinance 02-09 may favor a

public facility (i.e., the Horry County Solid Waste Authority) over all private

entites, including the Appellants, it does not favor any private entity over another

private entity. In other words, Horry County's rules governing waste collection

and disposal are exactly the same for all private entities without regard to their

location.

9

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Appellants do not dispute (on appeal) that the Horry County Solid Waste

Authority is a public entity, or that it is the beneficiary of the County's flow

control ordinance. That said, Appellants fail to acknowledge the consequences

of their concession. More specifically, under Lind Haulers there is no facial

discrimination subject to per se Commerce Clause invalidity when the flow

control measure at issue favors a public facility whc treating all private

enterprises the same. 550 U.S. at 345 ("We hold that the Counties' flow control

ordinances, which treat in-state private business interests exactly the same as

out-of-state ones, do not 'discriminate against interstate commerce' for purposes

of the dormant Commerce Clause."). Thus, Appellants are simply mistaken

when they assert that the district court in this case "failed" to determine whether

Ordinance 02-09 was facially discriminatory. See Appellants' Br. at 10-15. To

the contrary, the district court followed the exact same analysis set forth in

United Haulers in determining that Ordinance 02-09 was not facially

discriminatory inasmuch as the only entity it favored was a public facility, to the

exclusion of all private entities. The scrutiny that applies when a state or local

law facially discriminates against interstate commerce is not warranted in this

case because, as the Supreme Court emphasized, "it does not make sense to

regard laws favoring local government and laws favoring private industry with

equal skepticism," since laws favoring local government "may be directed

l 0

- 13-11..34 Doc: 33 Piled: 06; ;.4[2013

0

toward any number of legitimate goals unrelated to protectionism." United

Haulers, 550 U.S. at 343.

Having correctly concluded that Horry County's flow control ordinance

"benefit[s] a clearly public facility, while tt%,-aj5;!, all private companies exactly

the same," id. at 342, the district court analyzed Ordinance 02-09 under the test

set forth in Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). See District

Court Order, J.A. 820-822, it ibund that in this case, as was true for the

materially identical ordinances in United Haulers, "the burden imposed on

[interstate] commerce is [not] clearly excessive in relation to the putative local

benefits." Pike, 397 U.S. at 142.

On this point as well Appellants err in their reading of United Haulers.

Appellants claim that, in applying the Pike test, "revenue generation is not a

local interest that can justify discrimination against interstate commerce,"

quoting pre-United Haulers precedent. See Appellants' Br. at 16. But

Appellants simply ignore the Supreme Court's clear ruling on this very point in

United Haulers, which completely nullifies Appellants' contrary contention:

"While 'revenue generation is not a local interest that can justify discrimination

against interstate commerce,' we think it is a cognizable benefit fir purposes of

the Pike test." United Haulers, 550 U.S. at 346 (emphasis added and internal

citation omitted). The district court applied this same reasoning when it

11

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concluded that any burden Ordinance 02-09 may pose for interstate commerce is

not clearly excessive in relation to the ordinance's considerable local benefits.

District Court Order, J.A. 820-822. The district court recognized this case for

what it is - a direct application of United Haulers, Appellants' attempts to re-

argue or simply ignore bindir -uprerne Court precedent must fail.

13. Waste Flow Control to a Publk Fad 1, Not Facial DisethVAM.i0t1 11 a): Tin d . dtnJ n Comrnerc use of the Uniqu6y t"ljbliC FUliC643. SU'Vld

The district court ruling in this case not only applied the correct legal doctrine

from United Haulers, it also gave due regard to the same factual considerations that

drove the Supreme Court's analysis.

1. Solid Waste Management is a `,.)ipical and Traditional Concern of Local Government,' Fundamentally Distinct from Entreprennt 'or-Profit Activity

In United Haulers, the Supreme Court was called upon to decide what level of

Commerce Clause scrutiny to apply to flow control ordinances benefiting a clearly

public entity, such as the Harry County Solid Waste Authority. To answer that

question, the Court stated a fundamental premise:

States and municipalities are not private businesses - far from it. Unlike private enterprise, government is vested with the responsibility of protecting the health, safety, and welfare of its citizens. These important responsibilities set state and local government apart from a typical private business.

12

134 Doe. 33 Red: 05/14/2013 21 of 35

United Haulers, 550 U.S. at 34243 (internal citations omitted). Due to those

differences, the Court concluded that "it does not make sense to regard laws favoring

local government and laws favoring private industry with equal skepticism," id, at

343, and referring to flow control ordinances in particular, the Court emphasized that

such ordinances "are exercises of the police power in an effort to address waste

disposal, a typical and traditional concern of local government." Id, at 344.

Similarly, the Court explained that unlike a protectionist measure for the benefit of

private enterprise, laws favoring local government "may be directed toward any

number of legitimate goals unrelated to protectionism," which includes "enabl[ing]

the Counties to pursue particular policies with respect to the handling and treatment

of [local] waste," and "allocating the costs of those policies on citizens and

businesses according to the volume of waste they generate." Id. at 343. Put another

way, the analytical framework set forth in United Haulers reflected the Supreme

Court's recognition that for Commerce Clause purposes flow control ordinances

benefiting a public facility must be viewed through a different lens because they

implicate the broad range of public functions with which local government is

uniquely entrusted.

Appearing to ignore the Supreme Court's analysis in United Haulers, a

recurring theme of Appellants' brief is the notion that Horry County acted with

"purely financial" motives that seek to "suppress competition" in the marketplace.

13

Appeal: 134134. Doc: 33 06/14/201.3 Pg: 22 of

Appellants' Br. 14-15. Implicit in this argui ,;wfit is the unfounded notion that Horry

County is nothing more than a rival participant in the market, frustrating Appellants'

private entrepreneurial objectives. To the contrary, United Haulers recognizes that

local government responsibility for solid waste management, including the use of

flow control, is fundamentally distinct from the for-prof t entrepreneurial activity

traditionally performed by private businesses. This reflects longstanding recognition

of waste management as "a core function of local government in the United States."

United Haulers, 550 U.S. at 344; see also Sandlands C&D, LLC v County o f Horry,

716 S.E.2d 280, 285 (2011) ("In view of [Horry County's] longstanding

involvement in the field of solid waste management, we find that .. Ordinance [02-

09] represents a valid exercise of Harry County's police powers."). Appellants'

attempt to diminish the full range of Horry County's responsibilities simply re-

argues (or altogether ignores) the Supreme Court's reasoning in United Haulers.

In that regard, it bears emphasis that the public service obligations local

governments fulfill through the exercise of flow control authority have no

resemblance to the narrower imperatives of a private enterprise engaged in solid

waste collection or disposal. Thus, unlike the choices available to private enterprise

in a given market, in carrying out their public responsibilities local governments do

not have the luxury of "pick[ing] out good portions of a particular territory, serv[ing]

only select customers . . . , and refus[ing] service to other users." General Motors v.

14

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Po: 23 of 35

Tracy, 519 U.S. 278, 297 (1997) (citation o That is the context for the

Supreme Court's conclusion in United Haulers that flow control ordinances like

Horry County's do not facially discriminate under the dormant Commerce Clause or

otherwise unduly burden interst t icree. In t, local governments that rely

on flow control do not undertake their solid waste management responsibilities for

profit, entrepreneurial spirit or the like, but rather to satisfy one of their "typical and

traditional” governmental obligations. Id. at 347.

2. Essential Differences tween Collection- Disposal Businesses an orry Co A grated Waste Managemi 01 Services Further Preeludo a Findin t, of Diserinanon Under the Commerce (L''.41ta

Appellants' discrimination claim is also belied by the requirement that under

the dormant Commerce Clause "any notion of discrimination assumes a comparison

of substantially similar entities." General Motors, 519 U.S. at 298. In General

Motors, the Supreme Court addressed this matter as follows:

Conceptually, of course, any notion of discrimination assumes a comparison of substantially similar entities. Although this central assumption has more often than not itself remained dormant in this Court's opinions on state discrimination subject to review under the dormant Commerce Clause, when the allegedly competing entities provide different products, as here, there is a threshold question whether the companies are indeed similarly situated for constitutional purposes. This is so for the simple reason that the difference in products may mean that the different entities serve different markets, and would continue to do so even if the supposedly discriminatory burden were removed.

15

Appeal: 13-1134 fl(. Pg: 24 of 35

id. at 298-99; see generally id. at 297-303. The importance of comparing

substantially similar entities has particular application in the context of flow controL

That is because local governments that rely on flow control typically provide a

comprehensive array of waste management services (often statutorily-mandated) that

go well beyond the narrower waste collection-disposal business enterprise that

underlies Appellants' claim of discrimination. See United Haulers, 550 U.S. at 346-

47.

More specifically, the waste management functions performed by local

governments that rely on flow control (including amici) will typically comprise, in

addition to disposal of non-recyclable waste, a number of environmentally-essential

services such as recycling, household hazardous waste programs, yard waste

collection, related educational programs and comprehensive planning. As noted

earlier supra n.2), such recycling and related services are referred to as

"integrated waste management" services. Because these services "generally do not

lend themselves to generation of their own revenues," Report to Congress on Flow

Control at ES-1 , supra n.4, the affected local governments charge a "system" fee

which, although imposed only on disposal of non-recyclable waste, supports the full

array of integrated waste management services provided. That is precisely the case

with Harry County: the "system fee" the County imposes at the point of disposal has

provided the funding for all of the County's solid waste management and recycling

16

Doc: 33 dgcl: 'iJ2 Pg: 25 or :•*•,,

programs as well as the County's 911 emerEm -Icy response system and

environmental education in schools, facilitA the development and operation of a

renewable energy (landfill gas-to-energy) facility, and ensures that waste generated

in the County is disposed of in an environmentally sustainable manner, See J.A. at

460-462, 518-519. This same point was supi...c .in the record before the Supreme

Court in United Haulers, which expk that the flow control-supported integrated

waste management programs in 1ha. case were based on "charging tipping fees for

non-recyclable waste that support all waste system components, and not charging

fees for delivery of recyclables [or yard waste and household hazardous waste

collection programs, education, etc.]," the result of which is to "provide(] greater

incentives not only for complying with recycling laws, but also for reductions in the

generation of waste." Joint Appendix at 357a-358a (119), United Haulers Ass'n, Inc.

v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S, 330 (2007) (No, 05-1345);

see also id. at 376a (1142), 381a (1149). 5

It should also be emphasized that flow control provides financial incentives

for waste reduction and recycling that are not possible through other means, such as

tax subsidies, which do not create the same difference in relative prices that comes

with increasing the price for waste disposal. See id. at 388a-389a 0[60); see also

see United Haulers, 550 U.S. at 336 n,1 ("Tipping fees are disposal charges levied against collectors who drop off waste at a processing facility").

17

• L. • ,i•12013

United Haulers, 550 U.S, at 346-47 (explaining that flow control "create[sj

enhanced incentives for recycling and proper disposal of other kinds of waste" by

"accepting] recyclables and many forms of hazardous waste for free" which

"effectively encourage[s] their citizens to sort their own trash," i.e., source-separated

recycling, and avoid the high cost of waste disposal). Addressing the same point in

its Report to Congress on Flow Control, the Environmental Protection Agency

explained that "Edjue to flow control," the affected local governments' system fees

"often cover other municipal system costs (e.g., curbside recycling). In contrast,

private regional landfills are more likely to set tipping fees at (lower) levels that

recover disposal costs only." Report to Congress on Flow Control at 111-51. 6

Finally, Appellants also argue (Br. 9, 13-15) that Horry County should pursue

waste management alternatives other than flow control, such as tax subsidies. Aside

6 Prior to its decision to use flow control, Horry County had become increasingly concerned that it would not be able to attract sufficient waste to generate the tipping fee revenue needed to support the County's recycling and other integrated waste management programs, see LA. 561, 595, and the record also shows that the County was well aware of the shortcomings inherent in such alternatives. See LA. 613 ("A countywide to illage to cover non-landfill based services does not directly provide an incentive for recycling. In fact, implementation of a millage to cover the [County's] non-landfill related services would reduce landfill tipping fees, which would make disposal cheaper, thereby reducing the economic incentive to recycle, as perceived by the landfill customer."); J.A. 617, 624 (same). See also Variable Rates In Solid Waste: Handbook For Solid Waste Officials, U.S. EPA, EPA/530-SW-90-084A, Vol. I — Exec. Summ. 2 (Sept. 1990) (discouraging use of local taxes, such as property taxes, to support solid waste management services because such use of property taxes fails to give "residents any incentive to reduce their waste" (original emphasis)).

18

134134 1:) ,,2;: Pg: 27

from the fact, noted above, that such alternatives are less effective management

tools, changing from flow control to a system of disposal fees, tax subsidies, etc., for

recycling and other programs would not lessen the impact on interstate commerce

because the very same recycling, waste processing and disposal facilities would be

used (albeit, less material would be recycled and more would require disposal).

Moreover, Appellants' argument ignores the fact that the choice among such

alternatives is not for the courts but rather for Homy County and other states and

localities responsible for municipal waste management, See Brotherhood of

Locomotive Firemen & Enginemen v. Chicago, Rock Island & Pacific Railroad Co.,

393 U.S. 129, 142 (1968) ("If there are alternative ways of solving a problem, we do

not sit to determine which of them is best suited to achieve a valid state objective."

(quoting Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 524 (1959)); see also

United Haulers, 550 U.S. at 343 ("The dormant Commerce Clause is not a roving

license for federal courts to decide what activities are appropriate for state and local

government to undertake, and what activities must be the province of private market

competition.").

Putting these points in context, Appellants' failure to recognize the significant

difference between their collection-disposal business enterprises and the statutorily-

driven integrated waste management services provided by flow-control-reliant

communities "ignore[s] what is probably the single most important variable that

19

Appe -

33 ,,311412D13 Pg:

differentiates public, flow-controlled facilities from private disposal sites" and

results in a false comparison of "apples to watermelons, [a]nd the comparison is

invalid." See Interstate Waste and Flow Control: Hearing On S. 1194 And 5'. 2034

Before The Senate Conon. On Emit And Pub. Works, 107th Cong. 995 (2002)

(quoting statement of Mark Lennon and Patrick Pinkson-Burke, Planning and

Community Assistance Section, Waste Management Division, New Hampshire

Department of Environmental Services) (available at

http://www.gpo.govifdsys/ k CHRG-I07shr 83690/ df/CHRG-

107shrg83690.pdf). Simply put, communities that rely on flow control are able to

provide a considerably more comprehensive array of waste management services to

their residents, and that choice does not offend the Commerce Clause because 'i t

does not make sense to regard laws favoring local government and laws favoring

private industry with equal skepticism." United Haulers, 550 U.S. at 343.

20

Appeal: 134134 Doe:. 06/1412)13 PT 29 of 35

CONCLUSION

The judgment of the district court should be affirmed.

Respectfully submitted,

Scott M. DuBoff C. Young

Ciervey Schubert Barer 1000 Potomac Street, NW Fifth Floor Washington, DC 20005 Counsci for Amid Curiae

(Additional Counsel Listed on Inside Cover)

21

ppeal: 13-1134 Doc: 33 Filed: 0611412013 it'g: 30 of 35

Appendix —Descriptions of Amici

The Delaware County Solid Waste Authority was established in 1954. Serving a county of more than 555,000 redents in populous southeastern Pennsylvania, the Authority's Integrated Waste Mafiqement (IWM) progi -arn; were established in reliance on flow control authority and emphasiv:o waste reduction and recycling and the use of best available technology, including a modern waste-to-energy (WTE) facility that began operation in 1992.

ecomaine is the successor by merger to Regional Waste Systems, which was established in 1974, to provide an IWM system for its twenty-one member-owner municipalities in southern Maine. Following extensive planning and public deliberation (at municipal, regional and state levels), the member municipalities voted to construct a modern WTE facility to replace reliance on landfills. Bonded indebtedness in excess of $76,000,000 was issued for the system's facilities (which includes Maine's largest recycling program) in reliance on the use of flow control authority.

The International Municipal Lawyers Association (IMLA) is a non-profit, professional organization of over 2,500 local government entities, including cities, counties, and special district entities, as represented by their chief legal officers, state municipal leagues, and individual attorneys. Since 1935, IMLA has served as a national, and now international, clearinghouse of legal information and cooperation on municipal legal matters. IMLA's mission is to advance responsible development of municipal law through education and advocacy by providing the collective viewpoint of local governments around the country on legal issues before federal and state courts.

The City and County of Honolulu, Hawaii, utilizes IWM to serve its 900,000 citizens, which includes Honolulu (Hawaii's capitol) and the entire island of Oahu. Facilities include a modern WTE facility, three transfer stations, a municipal solid waste landfill which includes an ash monofill, a construction and demolition debris landfill, yard waste composting, multiple materials recycling facilities, and a household hazardous waste collection facility. The County has relied on flow control authority since 1990 to facilitate implementation of this IWM system.

The Lancaster County Solid Waste Management Authority (LCSWMA) provides municipal solid waste management services for Lancaster County, Pennsylvania. LCSWMA serves a population of 520,000 with an IWM system consisting of a county-wide recycling program, household hazardous waste facility, transfer station, WTE facility and landfill. Since its establishment in 1987, LCSWMA has relied

Appea1:13-1.134, Doc: 33 06/1412013 P 3 f.3

upon flow control ordinances and contracts with private haulers to secure delivery of waste, resulting in the long-term financial stability of the system and the rates charged to residents and businesses.

Marion County, Oregon utilizes IWM to serve its 300,000 citizens, which includes Salem (Oregon's capitol) and nineteen other cities. Facilities include a modern WTE facility, two transfer s , `.ions, an ash monofill, a construction and demolition debris landfill, and yar ' composting and household hazardous waste collection facilities. The Cou y has relied on flow control authority since 1986 to facilitate implementation of fois IWM system,

Montgomery County, Ohio proviO:s int-e;rated solid waste management for the approximately 500,000 residents oi the 4 er Dayton including recycling, waste reduction and waste disposal services. The County's innovative waste management solutions date back to the 1960s with the construction of two waste combustion facilities that began operation in 1970. Despite long-term prior reliance on flow control authority, uncertainties associated with use of flow control prior to the Supreme Court's United Haulers decision prevented the County from proceeding with planned retrofits of its waste combustion plants.

The National Association of Counties (NACo) is the only national organization that represents county governments in the United States. Founded in 1935, NACo provides essential services to the nation's 3,069 counties. NACo advances issues with a unified voice before the federal government, improves the public's understanding of county government, assists counties in finding and sharing innovative solutions through education and research, and provides value-added services to save counties and taxpayers money. NACo supports local governments' legal authority to control the flow of municipal solid waste generated within their jurisdictions, and has done so for many years.

Pine Belt Regional Solid Waste Authority is a political subdivision of the State of Mississippi formed in 1992 under section 17-17-307 of the Mississippi Code to act "in all respects for the benefit of the people of the state in the performance of essential public functions...to promote the health, welfare and prosperity of the general public." The Authority provides IWM services for the counties of Covington, Greene, Jefferson Davis, Jones, Perry and Stone, and the cities of Petal, Laurel and Hattiesburg. A challenge to Authority members' reliance on flow control was rejected in National Solid Waste Management Assoc. v. Pine Belt Regional Solid Waste Auth., 389 F.3d 491 (5th Cir. 2004).

4134 Duc: '';1201 Pq: 32 of:35

The Solid Waste Association of North America (SWANA) is a nonprofit educational organization. For nearly 50 years, SWANA has been the leading professional association in the solid waste field, serving municipal solid waste professionals throughout North America with conferences, certifications, publications, and technical training. SWANA supports local governments and waste authorities that undertake flow control programs responsive to compelling local objectives and mindful of the legitimate interests of residents, businesses and other affected parties.

The Solid Waste Authority of Central Ohio (SWACO) serves Franklin County (Columbus) and parts of five surrounding counties, with a population of over 1.2 million. Since its inception in 1989, SWACO has been a catalyst for recycling and cutting-edge programs to find new uses for waste. Despite long-term reliance on flow control, uncertainties associated with the use of flow control prior to the Supreme Court's United Haulers decision prevented SWACO from upgrading its 2,000 ton-per-day WTE plant, which was instead required to shutdown. As a result of United Haulers, SWACO is now able to rely on flow control to implement a comprehensive solid waste management plan that addresses operation of its landfill and transfer stations and provide, without charge, a variety of recycling and waste minimization services.

The Solid Waste Authority of Palm Beach County (SWA) is a Dependent Special District created by the Florida Legislature to address solid waste management and recycling for all of the 1.3 million residents and businesses in the County. SWA operates a fully integrated system of six transfer stations, a centrally located landfill, a recently refurbished WTE facility, a new 3,000-ton per day WTE facility (currently under construction), one of the largest publicly-owned recycling facilities in the United States, a biosolids pelletizing facility, and several other programs including composting and household hazardous waste collection. Reliance on flow control and non-ad valorem assessments have been crucial to the SWA's ability to finance this infrastructure.

Serving a population of 270,000, the Solid Waste Disposal Authority of the City of Huntsville, Alabama operates a 690 ton-per-day WTE (steam) plant, curbside recycling, landfill gas recovery, metals recovery, sewage sludge incineration, and household hazardous waste programs. In reliance on flow control, the Authority has issued $121 million in bonds, and all Authority services are financed from system fees and steam sale proceeds.

The South Carolina Association of Counties (SCAC) is the only organization dedicated to the statewide representation of county government in South Carolina. SCAC works with county officials to provide education and training, legislative

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reporting, research and technical assistance. SCAC has worked closely with Horry County concerning this litigation to ensure that all 46 South Carolina counties maintain the ability to properly address their significant responsibilities under the state's Solid Waste Management Act.

Protection of the environment was a primary cons' ition in the development of the Spokane Regional Solid Waste System (RSW' by the City of Spokane and Spokane County, Washington. Reliance on flow control authority and an integrated system fee have been principal factors in implementing the Spokane RSWS, which provides solid waste reduction, recycling, recovery of energy from waste, composting and household hazardous waste collection in an environmentally safe and cost-effective manner and consistent with state requirements and objectives for solid waste management planning.

The Wasatch Integrated Waste Management .D r oot is a Utah special service district organized in 1984 to manage solid waste for Davis and Morgan counties and sixteen cities. Wasatch serves a population of more than 230,000 with a state-of-the-art WTE facility, a modern gas recovery-equipped landfill, and a variety of additional IWM services. Reliance on flow control authority was critical for establishing these programs, and a successful by-product of the Wasatch system is the sale of steam and electricity to serve adjacent Hill Air Force Base.

Established in 1971 to assure environmentally sound management for all municipal solid waste generated in York County, Pennsylvania, the York County Solid Waste and Refuse Authority serves a population of more than 435,000. The Authority's programs emphasize waste reduction, recycling and beneficial reuse with best available technology. The latter led to development of a modern WTE facility that began operation in 1989 and generates renewable energy to serve approximately 20,000 homes. The flow control ordinance York County adopted in 1989 remains in place today and has been the key factor in avoido , reliance on taxes while securing sufficient revenue to support WTE technology' 1 ,,rater initial cost (as well as the cost of other environmentally proactive programs — which are provided without charge — such as household hazardous waste collection services, public education programs, collection and management of discarded pharmaceuticals, etc.).

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1 13-1134 Doc: 33 Filed: 06/14/2013 Pg: 34 o

CIT t2ATE

I hereby certify that the foregoing brief complies with Fed. R. App. P.

32(a)(7). The word count function of the word processing system used to prepare

this brief indicates that it contains 5,443 words (inclusive of footnotes, citations and

the Appendix, but exclusive of the tables of contents and authorities and attorney's

certificate). This brief complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of

Appellate Procedure 32(a)(6) because the brief has been prepared in Times New

Roman font, a proportionately spaced typeface, 14 point size, using Microsoft Word

2007.

/Scott M. DuBoff Scott M. DuBoff Counsel for Amid Curiae

Dated: June 14, 2013

Doc: 33 Piled; 0141

Pg: 35 of 35

` ,1CATE OF SERVICE

The undersigned hereby certifies that he has this 14th day of June, 2013

caused all counsel of record to be served with a copy of the foregoing Brief Amid.

Curiae via the Court's CM/ECF system.

/Scott M. DuBoff Scott M. DuBoff