MSW Management | Editorial

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Opportunity Knocks Twice: A Time for Partnerships?

By John Trotti

No subject received more attention at Waste Expo in Atlanta this past May than the United States Supreme Court’s affirmation of the United States Court of Appeals for the Second Circuit’s ruling in the case of United Haulers Association Inc. Et Al. v. Oneida-Herkimer Solid Waste Management Authority Et Al. that upholds the counties’ flow-control ordinances, which treat in-state private business interests exactly the same as out-of-state ones and do not discriminate against interstate commerce.

In the eyes of many (and without going into detail) Herkimer effectively allows public entities to bypass the Commerce Clause issue that formed the basis of the landmark 1994 flow-control decision in C&A Carbone Inc. v. Clarkstown, 511 U.S. 383, in which the Court held that an ordinance forcing haulers to deliver waste to a particular private facility discriminated against interstate commerce. In Herkimer, the Court concluded that “... waste disposal is both typically and traditionally a local government function,” and that “the ordinances give the Counties a convenient and effective way to finance their integrated package of waste disposal services.”

“This will be disastrous to private haulers,” I heard one vocal opponent proclaim.

”Let’s see how they [the private sector folks] like it now that the shoe is on the other foot” was the gloating challenge of an apparent proponent. While other responses filled in some of the empty space between, the majority of people seemed to have adopted a wait-and-see position for the time being, sensing, I suspect, a variety of yet-to-be-revealed opportunities.

My initial reaction was to discount the overall impact of the decision, feeling that the majority of the systems in place today are pretty firmly bedded down and operating effectively ... another way of saying, “If it ain’t broke, don’t fix it.” But the more I’ve thought about the possibilities in the interim, the more I’ve come to believe that we are facing a situation fraught with peril and opportunity alike.

The Legacy of Carbone
Like many, when the Carbone decision was handed down, I was caught off guard and unprepared to render any opinion on the subject. Nevertheless, I sensed that so narrow a decision was apt to toss a monkey wrench into the waste management machinery, introducing stumbling blocks whose impacts would be difficult to overcome. These misgivings were not founded on the motives of the plaintiff and Justices but on the decision’s limited scope, which was divisive in a way that removed great chunks of what could have been common ground for developing genuinely effective public-private partnerships.

Throughout the remainder of the ’90s and into the new century, it became increasingly apparent that the division between public and private interests in many jurisdictions had progressed to the point that integrated solid waste management (ISWM) was more a matter of wishful thinking than fact. Municipalities could develop all the plans and programs they wished to meet increasingly stringent federal and state mandates; but, as often as not, they lacked the wherewithal to put them into practice, particularly where public and private interests were ruled by irreconcilable agendas. In the eyes of some, not only was the shoe solidly on the foot of the private sector, but it had grown a set of cleats.

The Challenge of Herkimer
As we head into the post-Herkimer era, it appears a safe bet that the shoe has moved to the public-sector foot—a situation that carries with it a host of opportunities and some frightful uncertainties and responsibilities as well. A phrase heard more than once in Atlanta was “payback time,” unmistakably a suggestion that the preceding period deserved a dose of retributive justice. While I’d like to think that this falls into the category of big-mouth blather, its potential for mischief cannot be dismissed out of hand.

And I have additional fears, including the thought that local politicians may see in Herkimer the makings of a cash cow that can be used to address general-fund issues rather than those having to do principally with waste.

Scarier still is the prospect that the authors of such programs might be public-sector wannabe entrepreneurs seizing a seemingly riskless opportunity to preempt traditional free-enterprise activities.

Scariest of all, however, is a let’s-jump-into-it-and-see-what-happens reaction on the part of ill-prepared public servants feeling the call to do something with no cogent plan in mind ... a recipe for catastrophe.

The Promise of Herkimer
No doubt we’ll be treated to instances of the above, but hopefully they’ll be random and suffer infant mortality. In the vast majority of cases we’ll see responsible leadership taking advantage of opportunities to bring to fruition long-sought ISWM programs—the very basis of the Court’s decision when you think about it.

In so many areas, our society finds itself at crossroads today, facing challenges that, while not new, have grown, evolved, coalesced, and aggregated in manners that now demand radical action rather than judicious tweaking. It is less important to enumerate these challenges or our contribution to them than to focus on our potential roles in meeting them.

As stewards of one side of the materials management equation, we are in possession of resources that do not need to fight to create markets but are instead facing demands that (as in the case of energy resources) vastly outstrip their ongoing supply. All of us have genuine concerns about where some of those demands might lead, but that’s not the same as saying we need to eliminate them from consideration. In fact, to do so is akin to eliminating recycling because some of the materials might be shipped to people whose environmental stewardship is suspect.

When you think about it, our governing attitudes and programs for waste diversion are reactive in nature, set in motion by the goal of reducing the amount of stuff that goes to landfills. While we may take pride in producing figures to substantiate an X- or Y-percent diversion rate, when you contrast these with the demands that lie on the other side of the materials management equation, how unreasonable is it to ask ourselves whether this is the best contribution we’re capable of making?

Herkimer to the Rescue?
Let me lay out a line of reasoning followed by the purpose behind it:

Unless yours is a large and particularly well-endowed community, the chances are that it’s not in a position to meet the full staffing needs of all its departments.
If there are shortfalls, there’s probably a hierarchy governing those activities where shortfalls should and should not exist. Waste management may not always occupy the top rung of this hierarchy.
Given the demographic changes we find in the labor force, the shortfall situation is not likely to improve before it becomes more acute.
Faced with HR deficiencies, public entities may wish to concentrate staffing resources on some areas of responsibility and look to the private sector to provide the expertise and manpower for others.
Waste-management activities, particularly those requiring highly specific expertise, are likely candidates for the latter.

These factors establish the need for cooperative efforts that allow both sectors to take advantage of their best capabilities.

Public-Private Partnerships
Rather than the mechanism of divisiveness, as with Carbone, how about asking Herkimer to be the agent of cooperative efforts? Just what this means and how it may come to pass will vary jurisdiction by jurisdiction, but if ever there was a role for public-private partnerships, it is here and now.

The ability to direct waste to publicly owned facilities provides municipalities opportunities for superior funding that could open doors to waste-management options unattainable under Carbone, where high capital costs in the absence of a predictable waste flow hampered access to financing.

Taken together, these factors are a strong prescription for public-private partnerships that well could become the foundation for exciting new directions in ISWM systems ... indeed, systems geared to build on the successes of the past but organized to meet the pressing societal and environmental needs of the present.

MSW - July/August 2007