C & A Carbone v. Clarkstown: A Wake-Up Call for the Dormant Commerce Clause

Introduction Garbage collection, transportation, and disposal have historically been the responsibility of individual towns and cities in the United States. 1 However, stringent environmental regulations, declining landfill capacity, and the implementation of costly source reduction and recycling programs have greatly increased the costs of waste management borne by towns. 2 For the past two decades, many local governments have relied on "flow control" ordinances to finance their solid waste management activities. 3 These ordinances designate where municipal solid waste generated within the community must be managed, stored, or disposed. 4 Recently, in C & A Carbone, Inc. v. Town of Clarkstown, 5 the U.S. Supreme Court ruled that such ordinances violate the Commerce Clause of the U.S. Constitution. In this decision, the Court misapplied the dormant Commerce Clause doctrine and thereby jeopardized the financial stability of local governments that have relied on flow control ordinances to finance their waste management programs. Flow control ordinances dictate where a community's garbage must be processed or disposed. 6 By enabling a local government to control its garbage, flow control helps the town meet its environmental goals, such as ensuring that recyclable materials are properly separated. 7 Typically, garbage processing and disposal facilities charge a fee per ton of garbage handled, known as a "tipping" fee. 8 By requiring all municipal waste to be shipped to a designated facility, flow control guarantees a stream of revenue to that facility. 9 Local governments have relied on this revenue to fund ..