Associations File Brief over Flow Control Law

ISRI, NAID and AF&PA have filed an amicus curiae brief in the case of C&A Carbone Inc. v. County of Rockland.

July 24, 2013
Recycling Today Staff
Legislation & Regulations

The Institute of Scrap Recycling Industries (ISRI), along with the National Association for Information Destruction (NAID) and the American Forest & Paper Association (AF&PA), have filed an amicus curiae brief in the case of C&A Carbone Inc. v. County of Rockland, N.Y., also known as Carbone II. The case centers around a Rockland County, N.Y., flow control law that aims to force all trash and recyclables collected within the county to be delivered to designated facilities that are publicly owned yet privately operated.

In the brief, filed in the Federal District Court for the Southern District of New York, the three parties argue that “Flow control of recyclables and other valuable commodities injures them and threatens America’s growing recycling and resource recovery infrastructure, an essential part of our national economy that reduces our dependence on foreign energy, protects the environment, and fuels small business creation and blue collar employment.”

The amici point out that the Supreme Court’s 1994 decision in C&A Carbone Inc. v. Clarkstown, N.Y., established precedent in the case, ruling that state and local flow control laws violate the Commerce Clause of the U.S. Constitution by hindering interstate trade.

In a more recent case, United Haulers Association. v. Oneida-Herkimer Solid Waste Management Authority, however, Supreme Court Chief Justice John Roberts created a narrow carve out for certain types of government owned and operated facilities, which Rockland claims applies in this case.

“United Haulers does not apply to recyclable property that is not discarded,” says Scott Horne, ISRI’s vice president of government relations. “Not only does Rockland’s law direct traffic to a privately run facility, but it sweeps all recyclables into the same category as traditional garbage, giving no recognition to the fact that it is property and is often sold for value.”

ISRI notes that flow control laws unjustifiably violate the principle that, of all the limits on local regulation, “none is more certain than the prohibition against attempts on the part of any single state to isolate itself from difficulties common to all,” and asks the Court to vindicate the constitutional protections afforded all Americans and remove Rockland County’s obstacle to trade and progress.

The AF&PA writes, “AF&PA and its members strongly support the plaintiffs’ motion for summary judgment against the Rockland County flow control law. The forest products industry has developed a sophisticated, free-market system that recycles a large majority of paper products produced in the United States.”

The AF&PA says its members are at the forefront of recycling, including the New York/New Jersey area, and the export of the material is a significant business in the eastern part of the country. “The infrastructure for paper recycling in the multistate region encompassing Rockland County is robust and depends on market incentives and steady supplies of paper fiber among collectors, brokers, recyclers and pulp and paper mills. The prospect of each local government in the region monopolizing valuable used paper resources for itself and a handful of contractors will damage and distort a vibrant market and cause less recycling and innovation, leading to higher prices for consumers for paper products.”

NAID says that its members have a direct interest in the case and that is supporting the plaintiffs’ motion for summary judgment. The association says the Rockland County flow control ordinance interferes with contractual obligations NAID members have to their clients to provide secure data destruction services. “Defendant Rockland County has undertaken surveillance, vehicle tailing and other law enforcement activities against NAID members and accused them of shipping recyclable materials out of county in violation of the flow control law," the brief states. 

“NAID members are damaged by low control, having to sell their paper to Rockland County for prices as low as $40 per ton, when facilities in New Jersey pay approximately $200 per ton for paper," the brief states. 

The full brief can be read here