The authority of a county to restrict the flow of its solid waste was upheld in an opinion by the U.S. Court of Appeals for the 4th Circuit. 

The case concerns a flow control ordinance issued in 2009 by the Horry County, South Carolina, Solid Waste Authority (SWA).  Under the ordinance, disposal of waste generated in Horry County is prohibited at any facility other than those designated by Horry County.  The practical effect of the ordinance is that covered waste is taken to one of two landfills inside Horry County.  The county also operates a recycling facility and runs a green power facility that harnesses methane gas emitted by the landfills to generate electricity.

According to the SWA, the intent of the ordinance is to conserve resources, prevent pollution, and protect the public health, safety, and well-being.  The ordinance also ensures the SWA a revenue stream from the tipping fees haulers must pay to deliver waste.

Dormant commerce clause

The ordinance was challenged in federal district court by Sandlands C&D, a private landfill in a neighboring county, and Express Disposal Service (EDS), a waste disposal company.  According to the petitioners, the SWA and the ordinance violated a “negative implication” of the federal interstate commerce clause, called the dormant commerce clause, which generally prohibits states from passing protectionist measures that favor in-state actors over out-of-state actors.   The petitioners also asserted that the flow control ordinance violated the equal protection clause because it subjected private companies to differential treatment.  The district court denied both claims, and the 4th Circuit affirmed. 

In its analysis of the dormant commerce clause, the 4th Circuit referenced the U.S. Supreme Court’s opinion in United Haulers Ass’n v. Oneida-Herkimer Solid Waste Management Authority, which upheld flow control ordinances “remarkably similar to the one at issue here,” according to the 4th Circuit.  In its opinion, the Supreme Court held that the flow control ordinances that favored the government while treating all private parties the same were not discriminatory.  The Supreme Court stated:

“Disposing of trash has been a traditional government activity for years, and laws that favor the government in such areas—but treat every private business, whether in-state or out-of-state, exactly the same—do not discriminate against interstate commerce for purposes of the Commerce Clause.  Applying the Commerce Clause test reserved for regulations that do not discriminate against interstate commerce, we uphold these ordinances because any incidental burden they may have on interstate commerce does not outweigh the benefits they confer on the citizens of Oneida and Herkimer Counties.”

Benefits provided

Based on the Supreme Court’s analysis, the 4th Circuit first recognized that the Horry County flow control ordinance benefits the county by providing public education about recycling, increased opportunities for recycling, and the operation of a green power facility that generates electricity using landfill gas.  The court also points out that the SWA has won statewide awards for its environmentally friendly waste-management programs.  “In sum, the Horry County Flow Control Ordinance provides the same types of benefits and imposes the same types of burdens as the ordinances upheld in United Haulers,” stated the 4th Circuit.

No preferential treatment

Regarding the claim of differential treatment, the 4th Circuit found that under the flow control ordinance, the SWA may not designate a private landfill; therefore, all private landfills are treated equally.

“Furthermore, all private haulers are prohibited from transporting waste from Horry County to landfills not operated by or designated by the SWA,” said the court. “Sandlands and EDS have failed to show that they have been intentionally treated differently from other similarly situated companies.”

Sandlands C&D; Express Disposal Service LLC v. Horry County