Editing Dormant Commerce Clause (section)

===United Haulers: local processing law benefiting public entity===
{{main|United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority}}

The Court's 2007 decision in ''[[United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority]]'' starkly illustrates the difference in result when the Court finds that local regulation is not discriminatory.  The Court dealt with a flow control regimen quite similar to that considered in Carbone. The "only salient difference is that the laws at issue here require haulers to bring waste to facilities owned and operated by a state-created public benefit corporation." The Court decided that the balancing test should apply, because the regulatory scheme favored the government owned facility, but treated all private facilities equally.

<blockquote>Compelling reasons justify treating these laws differently from laws favoring particular private businesses over their competitors. "Conceptually, of course, any notion of discrimination assumes a comparison of substantially similar entities." ''General Motors Corp. v. Tracy'', 519 U.S. 278 (1997). But States and municipalities are not private businesses&mdash;far from it. Unlike private enterprise, government is vested with the responsibility of protecting the health, safety, and welfare of its citizens. . . . These important responsibilities set state and local government apart from a typical private business.</blockquote>

The Court's further explained:

<blockquote>By the 1980s, the Counties confronted what they could credibly call a solid waste "'crisis.'" ... Many local landfills were operating without permits and in violation of state regulations. Sixteen were ordered to close and remediate the surrounding environment, costing the public tens of millions of dollars. These environmental problems culminated in a federal clean-up action against a landfill in Oneida County; the defendants in that case named over local businesses and several municipalities and school districts as third-party defendants The "crisis" extended beyond health and safety concerns. The Counties had an uneasy relationship with local waste management companies, enduring price fixing, pervasive overcharging, and the influence of organized crime. Dramatic price hikes were not uncommon: In 1986, for example, a county contractor doubled its waste disposal rate on six weeks' notice</blockquote>

The Court would not interfere with local government's efforts to solve an important public and safety problem.

<blockquote>The contrary approach of treating public and private entities the same under the dormant Commerce Clause would lead to unprecedented and unbounded interference by the courts with state and local government. The dormant Commerce Clause is not a roving license for federal courts to decide what activities are appropriate for state and local government to undertake, and what activities must be the province of private market competition. In this case, the citizens of Oneida and Herkimer Counties have chosen the government to provide waste management services, with a limited role for the private sector in arranging for transport of waste from the curb to the public facilities. The citizens could have left the entire matter for the private sector, in which case any regulation they undertook could not discriminate against interstate commerce. But it was also open to them to vest responsibility for the matter with their government, and to adopt flow control ordinances to support the government effort. It is not the office of the Commerce Clause to control the decision of the voters on whether government or the private sector should provide waste management services. "The Commerce Clause significantly limits the ability of States and localities to regulate or otherwise burden the flow of interstate commerce, but it does not elevate free trade above all other values."</blockquote>