Editing Dormant Commerce Clause (section)

===''Carbone'': local processing law benefiting private entity===
{{Main|C&A Carbone, Inc. v. Town of Clarkstown, New York}}

In the 1980s, spurred by [[RCRA]]'s emphasis on comprehensive local planning, many states and municipalities sought to promote investment in more costly disposal technologies, such as [[waste-to-energy]] incinerators, state-of-the-art landfills, composting and recycling. Some states and localities sought to promote private investment in these costly technologies by guaranteeing a longterm supply of customers.<ref>Phillip Weinberg, Congress, the Courts, and Solid Waste Transport:  Good Fences Don't Always Make Good Neighbors, 25 Envtl. L. 57 (1995)</ref><ref>Atlantic Coast Demolition & Recycling, Inc., 112 F.3d 652, 657 (3d Cir. 1997)</ref> For about a decade, the use of regulation to channel private commerce to designated private disposal sites was greatly restricted as the result of the Carbone decision discussed below.

Flow control laws typically came in various designs. One common theme was the decision to fund local infrastructure by guaranteeing a minimum volume of business for privately constructed landfills, incinerators, composters or other costly disposal sites. In some locales, choice of the flow control device was driven by state bonding laws, or municipal finance concerns. If a county or other municipality issued general obligation bonds for construction of a costly incinerator, for example, state laws might require a special approval process. If approval could be obtained, the bonds themselves would be counted against governmental credit limitations, or might impact the governmental body's credit rating: in either instance the ability to bond for other purposes might be impaired. But by guaranteeing customers for a privately constructed and financed facility, a private entity could issue its own bonds, privately, on the strength of the public's waste assurance.

The private character of flow control regimens can thus be explained in part by the desire to utilize particular kinds of public financing devices. It can also be explained by significant encouragement at the national level, in national legislation as well as in federal executive policy to achieve environmental objectives utilizing private resources. Ironically, these public-private efforts often took the form of local processing requirements which ultimately ran afoul of the commerce clause.

The Town of Clarkstown had decided that it wanted to promote waste assurance through a local private transfer station.  The transfer station would process waste and then forward the waste to the disposal site designated by the town. The ordinance had the following features:

Waste hauling in the Town of Clarkstown was accomplished by private haulers, subject to local regulation. The scheme had the following aspects:
# The town promoted the financing of a privately owned transfer station through a waste assurance agreement with the private company. Thus the designated facility was a private company.
# The Town of Clarkstown forced private haulers to bring their solid waste for local processing at the designated transfer station, even if the ultimate destination of solid waste was an out-of-state disposal site.
# The primary rationale for forcing in-state waste into the designated private transfer station was financial; it was seen as a device to raise revenue to finance the transfer station.

The Town of Clarkstown's ordinance was designed and written right in the teeth of the long line of Supreme Court cases which had historically struck down local processing requirements. In short, it was as if the authors of the ordinance had gone to a treatise on the commerce clause and intentionally chosen a device which had been traditionally prohibited. A long line of Supreme Court case law had struck down local processing requirements when applied to goods or services in interstate commerce. As the Court in ''Carbone'' wrote:

<blockquote>We consider a so-called flow control ordinance, which requires all solid waste to be processed at a designated transfer station before leaving the municipality. The avowed purpose of the ordinance is to retain the processing fees charged at the transfer station to amortize the cost of the facility. Because it attains this goal by depriving competitors, including out-of-state firms, of access to a local market, we hold that the flow control ordinance violates the Commerce Clause.</blockquote>

The Court plainly regarded the decision as a relatively unremarkable decision, not a bold stroke. As the Court wrote: "The case decided today, while perhaps a small new chapter in that course of decisions, rests nevertheless upon well-settled principles of our Commerce Clause jurisprudence." And, the Court made it plain, that the problem with Clarkstown's ordinance was that it created a local processing requirement protective of a local private processing company:

<blockquote>In this light, the flow control ordinance is just one more instance of local processing requirements that we long have held invalid ... The essential vice in laws of this sort is that they bar the import of the processing service. Out-of-state meat inspectors, or shrimp hullers, or milk pasteurizers, are deprived of access to local demand for their services.  Put another way, the offending local laws hoard a local resource&mdash;be it meat, shrimp, or milk&mdash;for the benefit of local businesses that treat it. 511 U.S. at 392&ndash;393.</blockquote>