If you’ve ever had to explain a flow control ordinance to your city attorney, your city council, or a hauler quoting the Constitution, you know how complex and contentious this issue can be. Flow control ordinances allow municipalities to direct solid waste to specific facilities, typically to support public infrastructure, meet diversion and climate goals, or ensure long-term financial sustainability for local systems. But these ordinances don鈥檛 operate in a legal vacuum. They intersect with the U.S. Constitution鈥檚 Commerce Clause, which limits state and local actions that could burden or discriminate against interstate commerce.
For both public and private waste professionals, staying current with the evolving legal framework is essential. From foundational court decisions to recent regional rulings and looming challenges, here鈥檚 how flow control is changing鈥攁nd what it means for your operations.
Foundational Cases: Where It All Began
Three major Supreme Court cases form the bedrock of modern flow control jurisprudence:
- Philadelphia v. New Jersey (1978)
New Jersey attempted to block out-of-state waste from entering its landfills. The Supreme Court struck down the law, ruling it was discriminatory and violated the Commerce Clause. The key takeaway: waste is considered 鈥渁n article of commerce,鈥� and local governments can鈥檛 restrict it based on origin. - C&A Carbone, Inc. v. Town of Clarkstown (1994)
Clarkstown passed a law requiring all local waste be processed at a single, privately owned facility. The Court found the ordinance unconstitutional because it disadvantaged out-of-state waste processors, effectively favoring a local monopoly. - United Haulers Ass鈥檔 v. Oneida-Herkimer Solid Waste Mgmt. Authority (2007)
This case created an important exception to Carbone. The Court upheld a similar flow control ordinance, but the designated facility here was publicly owned and operated. The Court reasoned that laws favoring government entities do not discriminate in the same way as those favoring private businesses, especially when serving legitimate public interests like health, safety, and environmental protection.
Bottom line: Municipalities can lawfully implement flow control if it serves legitimate public purposes and does not favor private, in-state entities over out-of-state competitors.
Why Public vs. Private Still Matters
The most important legacy of United Haulers is the distinction it makes between directing waste to publicly owned vs. privately owned facilities. Routing waste to a private contractor, even for noble purposes, can still trigger Commerce Clause concerns. Municipalities that want to enforce flow control must ensure the public nature of the designated facility is central to the ordinance鈥檚 structure and intent.
Recent Cases: A Shifting Legal Landscape
While the aforementioned foundational cases laid the legal groundwork, municipalities today continue to test, and stretch, the boundaries of flow control. Courts across the country are responding, shaping how modern flow control ordinances are interpreted and enforced. Below are notable legal developments that highlight how legal precedent is evolving across regions:
- Waste Management of Alameda County, Inc. v. Biagini Waste Reduction Systems, Inc. (1998)
In this California case, Waste Management sued Biagini Waste Reduction Systems for allegedly transporting waste to unauthorized facilities, in violation of a county flow control ordinance. The court upheld the ordinance, emphasizing its alignment with California鈥檚 regulatory framework and reinforcing local authority to direct waste in support of environmental and public health goals. - Seacoast Sanitation Ltd., Inc. v. Broward County, FL (2004)
This case involved a challenge to Broward County鈥檚 ordinance directing waste to county-owned facilities. The plaintiffs claimed it violated the Commerce Clause. Although the ordinance was upheld, the case illustrated the fine legal line between lawful flow control and unconstitutional trade restriction. - Southern Waste Systems v. City of Coral Springs, FL (2010)
Southern Waste Systems sued Coral Springs, arguing the city鈥檚 flow control ordinance limited competition and access to local markets. While the ordinance was not overturned, the case highlighted tensions between municipal goals and private sector interests in Florida, a region increasingly active in this space. - Dallas, TX Flow Control Litigation and Settlement (2013)
Though not recent, this case remains relevant. The City of Dallas attempted to enforce a flow control ordinance that conflicted with existing franchise agreements. The ordinance was ruled in violation of the Contract Clause of the U.S. Constitution. The court issued an injunction, and a settlement ultimately blocked enforcement. The case serves as a warning about legal pitfalls when flow control ordinances are not fully aligned with contract law. - Shreveport, LA (2021 鈥� Ongoing)
Litigation is underway over a Shreveport ordinance mandating disposal at a designated city landfill. Haulers argue that the ordinance unfairly restricts competition. The case is being closely watched for its potential to influence how other mid-sized Southern cities structure and defend similar ordinances. - SkyCorp Ltd. v. King County, WA (2024)
In Washington State, the Court of Appeals upheld King County鈥檚 flow control ordinance requiring construction and demolition debris to be delivered to specified facilities. The court ruled that the ordinance was a valid exercise of local police power and did not violate constitutional protections. This case supports the authority of jurisdictions seeking to manage specialized waste streams while meeting recycling and diversion mandates.
These cases demonstrate that municipalities must carefully navigate the legal complexities of flow control ordinances. However, emerging areas of activity, not yet litigated, also demand attention and strategic foresight.
The Legal Minefield: Where Municipalities Get in Trouble
Recent litigation highlights the most common legal vulnerabilities:
- Differential Pricing – Charging higher tipping fees for out-of-state or private haulers can be interpreted as discriminatory, even if the intent is to support local programs.
- Vague Environmental Justifications – Legal challenges are often triggered not just by what a policy says鈥攂ut how it justifies its purpose. Courts want clear, measurable environmental goals, saying “it’s better for the planet” isn鈥檛 enough. Data-backed claims, such as avoided GHG emissions or increased diversion rates, are far more defensible.
- Exclusive Contracts with Private Operators – Directing flow to a private facility can violate antitrust principles and trigger lawsuits if they limit market access for out-of-state or unaffiliated processors.
- Contract Conflicts – Municipalities that ignore franchise agreement terms (e.g., existing hauler rights) risk not only legal challenges but also federal preemption under the Contract Clause.
- Lack of Documentation – Courts want a clear legislative record showing how the ordinance benefits public health, safety, or environmental outcomes.
With courts sharpening their scrutiny and the legal minefield expanding, it鈥檚 crucial to look ahead. Emerging technologies, regulatory changes, and shifting justifications are already reshaping the flow control conversation.
What鈥檚 Next: Emerging Legal and Industry Trends
Several factors are likely to shape how flow control is written, implemented, and challenged in the coming years:
- Advanced Waste Technologies – Anaerobic digestion, gasification, and chemical recycling are becoming more common. Private operators using these technologies may contest ordinances that restrict access to waste feedstocks, especially when they argue that their methods achieve higher diversion or environmental performance.
- Federal and State Policy Shifts – Federal climate policy and evolving state regulations, such as Extended Producer Responsibility (EPR) laws, may affect how local ordinances are judged. Courts may begin to weigh climate goals more heavily, but the boundaries remain undefined.
- Climate and Circular Economy Justifications – Cities are increasingly tying flow control to sustainability goals, such as reduced emissions from local processing or closed-loop recycling systems. Whether courts will accept these rationales as constitutional defenses remains an open question.
- Private Sector Pushback – Litigation from large, multi-state haulers and recyclers is becoming more common. These companies have legal teams that scrutinize local ordinances, especially in small-to-mid-sized cities where legal resources are thinner.
- Disproportionate Risk for Smaller Cities – Municipalities relying on flow control to fund essential services often can鈥檛 afford costly legal defenses. This may result in preemptive rollbacks or avoidance of potentially beneficial flow control tools, essentially a chilling effect on policy innovation.
New Legal Battlegrounds: Where Policy Innovation May Spark Legal Challenges
As local governments respond to climate mandates and shifting infrastructure realities, new legal and policy battlegrounds are emerging. These regional case studies illustrate where the next wave of flow control innovation鈥攁nd litigation鈥攎ay arise.
- California: Climate-Driven Flow Control Meets Commerce Clause Scrutiny – Cities like Los Angeles, San Jose, and Berkeley are reevaluating collection frameworks and franchise agreements to meet SB 1383鈥檚 organic waste targets. Some are considering flow control policies to ensure organic materials reach approved facilities, such as public anaerobic digesters. As these policies are increasingly justified on environmental and climate grounds, future court rulings may define how well such rationales stand up under Commerce Clause scrutiny.
- Connecticut: Export Pressures Revive In-State Flow Control Talk – The closure of the Hartford waste-to-energy plant has forced many New England municipalities to export waste to out-of-state landfills. In response, Connecticut鈥檚 regional waste authorities are discussing potential flow control policies that would direct waste to in-state facilities under development. Legal challenges are not yet filed, but the policy debate is intensifying and will likely raise constitutional questions about interstate commerce.
- Arizona and the Southwest: Infrastructure Constraints vs. Private Sector Resistance – Rapid population growth and growing landfill constraints, especially in Maricopa and Pima Counties, are prompting Arizona jurisdictions to explore flow control options. While formal litigation has yet to emerge, the increasing use of long-haul transport and strong private sector presence makes this a likely future legal battleground.听
How to Craft a Legally Defensible Flow Control Ordinance
Municipalities and private professionals can strengthen their position by:
- Prioritizing Public Ownership – Use publicly owned facilities to reduce Commerce Clause vulnerability, as affirmed in United Haulers and echoed in more recent rulings.
- Clearly Defining the Public Benefit – Link the ordinance to measurable outcomes like reduced GHGs or increased diversion.
- Avoiding Protectionist Language – Refrain from referencing local economic protection or job preservation.
- Ensuring Fee Uniformity – Keep tipping fees consistent across jurisdictions to avoid discrimination claims.
- Aligning with Contracts – Review existing agreements thoroughly. Flow control that contradicts franchise rights can be preempted or struck down.
- Documenting Everything – Build a detailed legislative record that explains why the ordinance exists and how it achieves public goals.
Final Word: Flow Control with Foresight
Flow control ordinances remain a valuable tool in a municipality鈥檚 waste management toolkit, but they come with legal strings attached. For public agencies, the path forward lies in crafting policies that align with constitutional precedent and today鈥檚 regulatory realities. For private sector stakeholders, understanding the legal framework is essential to knowing when to engage, challenge, or collaborate.
In a world of shifting sands of climate mandates, extended producer responsibility, and volatile recycling markets, flow control is no longer just about where the waste goes. It鈥檚 about whether the ordinance behind it can withstand scrutiny, from a judge, a hauler, or a spreadsheet.
Design with purpose. Align with precedent. Be ready to defend.
Morgan McCarthy, JD is a Project Manager with over 18 years of experience in solid waste, recycling, yard waste, and food waste management across both public and private sectors. She has led more than 56 high-impact projects, specializing in franchise agreement negotiation, RFP development, municipal code drafting, financial analysis, and regulatory compliance. Her ability to navigate complex procurement and policy environments makes her a trusted advisor in developing and implementing sustainable waste management solutions. Morgan holds a JD from Thomas Jefferson School of Law and a BS in Computer Science with a minor in Business from Liberty University (Magna Cum Laude). She is a SWANA/CRRA Certified Practitioner in Zero Waste Principles and Practices and SWANA-certified in Integrated Solid Waste Management. She can be reached 502-292-4648 or e-mail @ [email protected]
Bibliography
Primary Case Law
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Philadelphia v. New Jersey, 437 U.S. 617 (1978).
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C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994).
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United Haulers Ass鈥檔 v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330 (2007).
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Waste Mgmt. of Alameda Cty., Inc. v. Biagini Waste Reduction Sys., Inc., 63 Cal. App. 4th 1488 (1998).
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SkyCorp Ltd. v. King County, No. 84197-4-I (Wash. Ct. App. 2024).
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Seacoast Sanitation Ltd., Inc. v. Broward County, 275 F. Supp. 2d 1370 (S.D. Fla. 2004).
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Southern Waste Systems, LLC v. City of Coral Springs, No. 10-60573-CIV (S.D. Fla. 2010).
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Nat鈥檒 Solid Wastes Mgmt. Ass鈥檔 v. City of Dallas, No. 3:11-CV-03613-D (N.D. Tex. 2013).
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City of Shreveport v. Waste Haulers, 1st Judicial District Court, Caddo Parish, Louisiana (2021鈥損resent).
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Statutory and Constitutional Sources
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U.S. Constitution, Article I, 搂 8 鈥� Commerce Clause.
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U.S. Constitution, Article I, 搂 10 鈥� Contract Clause.
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California Senate Bill 1383 (CalRecycle).
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Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 搂 6901 et seq.
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Regulatory and Policy Documents
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CalRecycle. (2020). SB 1383: Short-Lived Climate Pollutants (SLCP): Organic Waste Methane Emissions Reductions.
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U.S. Environmental Protection Agency. (2023). Sustainable Materials Management: Non-Hazardous Materials and Waste Management Hierarchy.
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New York State Department of Environmental Conservation. (2021). Flow Control Guidance for Local Governments.
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Industry and Academic Sources
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National Waste & Recycling Association (NWRA). (2015). Flow Control and the Solid Waste Industry.
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Environmental Law Institute. (2017). Commerce Clause Limitations on Local Solid Waste Laws.
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American Bar Association Section of Environment, Energy, and Resources. (2020). Local Waste Ordinances in the Wake of United Haulers.
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Mitchell, T., & Horne, C. (2022). Legal Tools for Advancing Zero Waste: Flow Control and Beyond. University of California Public Policy Brief Series.
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U.S. Conference of Mayors. (2014). Municipal Solid Waste Management Best Practices Report.
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Institute for Local Self-Reliance. (2022). Why Local Control Over Waste Still Matters in a Circular Economy.
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News & Commentary
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Waste Today. (2013). Dallas, NWRA Settle Flow Control Lawsuit.
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Mitchell Williams Law. (2021). Flow Control/Municipal Ordinance: Shreveport Litigation Update.
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Route Fifty. (2023). Cities Revisit Waste Control Policies Amid Rising Disposal Costs.
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Waste Dive. (2024). Climate Policy Spurs New Wave of Waste Ordinances and Legal Tensions.