Posted on June 28, 2011 by Karen Aldridge Crawford
The United States District Court for the Northern District of New York recently took at least a small bite out of the legacy established by the 2007 U. S. Supreme Court decision in United Haulers Association v. United Herkimer Solid Waste Management Authority which first allowed flow control by a county under the unique circumstances set forth in that case.
Emboldened by the 2007 decision, several counties in various states have enacted flow control ordinances that require solid waste to be disposed only at county owned facilities. Not surprisingly, private waste management companies have systematically challenged those laws. In JWJ Industries, Inc. and Jeffrey Holbrook v. Oswego County, 5:09-CV-0740 (NPM/DEP) (N.D.N.Y. June 13, 2011), the district court addressed the narrow question of whether the flow control ordinance adoped by Oswego County was unconstitutionally vague and overbroad, both on its face and as applied. As an initial matter, the court, citing to United Haulers, noted that “the County was unquestionably within its right to implement a flow control ordinance directly affecting the operation of [Plaintiffs’ facility].” However, after subjecting the ordinance to the two-pronged analysis set forth in Thibodeau v. Portuondo, 486 F. 3rd 61 (2d Cir. 2007), the court determined that the ordinance was unconstitutionally vague.
The Second Circuit in Thibodeau set forth two independent grounds recognized by the U.S. Supreme Court to determine whether a law is so vague as to deny due process of law:
- Fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct the law prohibits.
- Authorizes or even encourages arbitrary and discriminatory enforcement.
Applying this two-pronged analysis, the court in JWJ Industries determined that the ordinance at issue failed both prongs. As to the first prong, the court found specifically that portions of the ordinance were contradictory and could be read to both require and prohibit the same exact actions, while also prohibiting inaction. As to the second prong, the court determined that the ordinance failed to take JWJ’s status or prior existence into account, providing no explicit standards on how it would treat existing private transfer facilities or processing facilities within the county; that scrutiny of letters and directives from the County and its director of solid wastes revealed that the flow control ordinance in question authorized and encouraged arbitrary and discriminatory enforcement; and that such arbitrary enforcement was manifest. Accordingly, the Court granted Plaintiffs’ motion for judgment on the pleadings, set aside the ordinance as unconstitutionally vague and otherwise dismissed the case.
Of note, the court also admonished the county, stating that, if the county government was basing its ordinance on a template obtained from elsewhere or was adopting an ordinance from another municipality (which often is done), it needed to at least try to conform the law to the conditions in that specific county.