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Dallas Flow Control Decision: Lessons Learned

John H. Skinner, Ph.D., Executive Director and CEO

Last month, the U.S. District Court for the Northern District of Texas issued a permanent injunction against the flow control ordinance passed by the City of Dallas. The ordinance would have required all waste collected in the city be disposed of at the city’s McCommas Bluff landfill or at one of the city’s transfer stations. U.S. District Judge Reed O'Connor found that the ordinance violated the franchise agreements that the city had established with local waste haulers that gave them permission to haul commercial waste to any state-approved landfill. The judge found that this violated the Contract Clause of the U.S. Constitution as well as Texas state law and the Dallas City Charter.

Judge O’Connor’s permanent injunction opinion is not surprising given what he said when he handed down the preliminary injunction last January. He stuck by his earlier thinking that the ordinance impaired the plaintiffs’ franchise rights. The city now needs to decide whether to appeal the decision to a higher court.

It is important to understand however, that this decision does not negate the constitutional right of local governments to enact flow control ordinances that require haulers to deliver locally generated solid waste to publically owned transfer or disposal facilities, as upheld by the U.S. Supreme Court in United Haulers v. Oneida-Herikimer, 550 U.S. 330 (2007). In the Dallas case, the Judge’s ruling is based on how he interprets the particular hauler franchise agreements at question, as well as state and city law issues. Therefore, it’s hard to say how the decision might resonate elsewhere in Texas, not to mention other parts of the country. However, the key lesson learned from the Dallas decision is that when local governments institute flow control ordinances they need to be vigilant in observing state and local legal requirements and existing franchise agreements.

SWANA continues to believe that flow control can be an effective and legitimate instrument of integrated municipal solid waste management. To the extent it is allowed by law and after public discussion, including the consideration of economic, environmental and social impacts, and input from residents, businesses, and other interested parties, flow control can be implemented in a legally defensible manner. As the U.S. Supreme Court found, this can be accomplished without unduly interfering with the free movement of municipal solid waste and recyclables across jurisdictional boundaries and as such, does not discriminate against interstate commerce for purposes of the Commerce Clause of the U.S. Constitution.