To determine whether a law violates the so-called "dormant" aspect of the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, a court first asks whether it discriminates on its face against interstate commerce. In this context, "discrimination" simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter. Discriminatory laws motivated by simple economic protectionism are subject to a virtually per se rule of invalidity, which can only be overcome by a showing that the state has no other means to advance a legitimate local purpose.
The Counties and the Authority, which was a public benefit corporation, had entered into an agreement that called for the Authority to manage solid waste. The Authority, which provided recycling and other services at its facilities, collected tipping fees from private waste collectors that significantly exceeded fees charged at waste processing facilities in the open market. The Counties enacted flow control ordinances requiring all solid waste generated within the Counties to be delivered to the Authority's processing facilities.
Petitioners, a trade association and individual haulers, filed suit under 42 U.S.C. § 1983, alleging that the flow control ordinances violate the Commerce Clause by discriminating against interstate commerce. They submitted evidence that without the ordinances and the associated tipping fees, they could dispose of solid waste at out-of-state facilities for far less.
Did the flow control ordinances violate the Commerce Clause?
The Court found that the flow control ordinances did not violate the Commerce Clause, U.S. Const. art. I, § 8, cl. 3. Although an ordinance that favored a particular private business would have violated the dormant Commerce Clause, the Counties' ordinances did not discriminate against interstate commerce because they benefitted a clearly public facility while treating all private companies exactly the same. It was not the office of the Commerce Clause to determine whether government or the private sector should provide waste management services or to override state policy that favored displacing competition with regulation in the waste management area.