The philosophy of solid waste flow control

At the core of every political issue are philosophical questions. This is true of solid waste management. Does government have a role in trash-pick-up? If so, should it be limited to mere policy enactment or take on a more active role?

Following the state’s lead, the Dutchess Legislature of yesteryear decided waste disposal was an appropriate topic for government intervention, but they sought limits on government involvement.

In 1984 it created the Resource Recovery Agency (RRA) as a public authority, and passed flow control legislation to require garbage haulers to bring county-generated trash to the Poughkeepsie plant to keep the agency solvent. Flow control ended in 1994 and since then the county taxpayer has been footing the bill for the RRA.

As our county presently embarks anew on updating its solid waste management policy the philosophical questions renew.

There are those in the Legislature who think the RRA was a failed experiment and that the county should abandon it. They point to recent allegations of mismanagement by RRA directors that the state comptroller is currently investigating.

They point also to the massive debt the Poughkeepsie-based waste-to-energy trash plant incurs annually that the county taxpayer must subsidize (currently $6.3 million). Reintroducing flow control would lessen the tax burden, but principally it would stifle the free market by giving favorable treatment to the RRA thereby allowing them to raise the fee they charge haulers.

These were the issues that the United States Supreme Court took up in 1994 and again in 2007 when considering the constitutionality of flow control legislation. Both cases involved New York municipalities. C&A Carbone v. Clarkstown (1994) struck down flow control legislation because garbage was viewed as “commodity in commerce†and made it unlawful for a municipality to steer waste to a publicly owned waste transfer facility. The Carbone case sought to invalidate government-imposed discrimination that “deprived competitors... access to the local market.â€

Dutchess County abandoned its flow control law following the Carbone decision.

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In 2007, the Supreme Court reversed itself in United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, making the distinction that a benefit conferred on a public facility was OK, whereas a benefit conferred on a private facility would be discrimination. The difference? According to the court, (1) government is vested with the responsibility to protect health, safety and welfare of its citizens, and (2) that New York state had adopted a policy of “displacing competition with regulation or monopoly control†(N.Y. Pub. Auth. Law Ann. Section2049—tt(3).

The 2007 court case simply means that Dutchess can stifle competition to further a legitimate government interest by enacting flow control legislation, not necessarily that we should.

Which returns us to philosophy: Ultimately is it in the county’s best interest to have a stake in county waste disposal? If not, how do we get out of it? If so and since New York has already specified a monopolistic approach to garbage collection — sanctioned by the U.S. Supreme Court — is it foolhardy not to enact tools like flow control to assure taxpayer accountability?

Michael Kelsey is the county legislator for Amenia, Washington, Stanford, Pleasant Valley and the village of Millbrook. Write him at KelseyESQ@yahoo.com.