Residents and commercial enterprises in the United States generate an enormous amount of solid waste. The responsibility of managing the collection and storage of this waste has traditionally been a municipal function, and disposal of the waste is a dilemma that perpetually confronts the states. With the advent of stricter federal guidelines concerning the disposal of solid waste, state and local governments have been forced to implement creative approaches to handle an ever-increasing supply of garbage.
The two predominant strategies used by local governments to address the dilemma are import restrictions and export restrictions. Import restrictions protect landfills by limiting the amount of waste entering the jurisdiction. Responding to environmental concerns over landfills, Congress recently encouraged states and municipalities to construct more environmentally efficient facilities. However, these incinerators, recycling facilities, and other waste transfer and disposal facilities incur tremendous expenses. Therefore, municipalities have pursued a second strategy of imposing export restrictions in order to support the facilities. The "flow control" ordinance, a common example of an export restriction, regulates the flow of garbage by dictating that waste generated within the jurisdiction be transported to specific waste disposal or transport facilities. Export restrictions ensure that a sufficient volume of waste is transported to facilities in which the municipality retains a financial stake.
The Supreme Court, however, has struck down certain forms of both import and export restrictions as violations of the Dormant Commerce Clause." Historically, governmental defendants could avoid dormant commerce clause scrutiny by claiming the market participant exception. Under this exception, if a state acts as a market participant rather than a market regulator, it may be immune from dormant commerce clause scrutiny.
David L. Johnson,
"SSC Corp. v. Town of Smithtown and USA Recycling, Inc. v. Town of Babylon:" Reinvigoration of the Market Participant Exception in the Arena of Municipal Solid Waste Management,
49 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol49/iss3/5