Flow control concerns the government’s policies or laws that permit state and local governments to designate disposal facilities such as transfer stations, landfills, or incinerators where you can take municipal solid waste (MSW) for processing, treatment, or disposal.
Owing to flow controls, designated disposal facilities may hold monopolies on local municipal solid waste or recoverable materials. Many states and local governments practice flow control to guarantee they receive the income associated with solid waste disposal.
However, in 1994, there was a declaration by the Supreme Court (Carbone case that flow control was a violation of the United States Constitution.
Nonetheless, by April 2007, there was a ruling by the U.S. Supreme Court that specific flow control laws that designate government-controlled and owned facilities in upstate New York were valid under the “dormant” Commerce Clause.
However, more recently, the U.S. Supreme Court on April 30, 2007, in United Haulers Association Inc. v. Oneida-Herkimer Solid Waste Management Authority, stated that flow control laws that favor government-controlled and owned disposal facilities should be reviewed under a more lenient Pike balancing test and are not discriminatory against interstate activities and commerce.
This is probably because the court and the government think flow controls protect public health and the environment.
Flow control dates to the 20th century. As far back as 1992, the U.S. Congress directed a review of flow control regarding municipal solid waste management.
Then, the Environmental Protection Agency (EPA) oversaw:
- Reviewing and comparing states with and without flow control authority;
- Identifying the impact of flow controls on human health and the environment; and
- Describing the impacts of flow control on the growth of local and state waste management capacity and the accomplishment of local and state goals identified for source minimization, recycling, and reuse
In 1995, the EPA submitted a report to the United States Congress on how flow control represents an efficient and effective tool for every local government to plan, fund, and manage waste management arrangements.
In correcting misconceptions about flow controls, the EPA added that the protection of human health and the environment has to do with the implementation and enforcement of environmental regulations. It stated that the existence of flow control measures might not have the desired effects. And that flow control may not be essential for achieving U.S. recycling goals or the development of MSW management capacity.
The Report gave a national perspective on flow control. It concluded that state and local jurisdictions’ needs and objectives might differ significantly from a national viewpoint.
And that factors such as local waste generation rates, market, and financial conditions, demographics, the local economy, and local waste production rates affect how we plan and implement local waste management systems.
On its part, NSWMA opposes flow control. The government should not stop the movement, and transfer of solid waste as such restrictions will result in increased costs. Flow control remains anti-competitive.
Local waste companies and waste generators challenge this because they believe that such government measures can adversely affect solid waste haulers who prefer to choose from competitive facilities based on cost and service.