City tells waste haulers they can dump their suit — the law is on the City’s side

Dallas city attorneys have filed a response to the waste haulers attempting to stop the city’s perfectly legal move that would require all trash collected within the city limits to be taken to a city owned and operated dump site — either McCommas Bluff Landfill or the Bachman Transfer Station.

Dallas wants to replace this ...

The haulers filed suit seeking a temporary injunction to stop the implementation of the so-called Flow Control Ordinance which the City Council passed 9-6. But the City says basically, "Wait a minute. The Supremes up in Washington have already ruled on this and found that Flow Control is absolutely within the right of a city to invoke. What follows is a story about the entire mess that recently appeared in that ever-popular publication Waste & Recyling News (a subscription to which would make the perfect holiday gift for that special person in your life).

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Flow control directly advances Dallas "fundamental aim to operate in an environmentally sustainable manner as a leader and innovator in green management," the city’s attorney wrote in response to the lawsuit filed challenging the law.

City Attorney Peter Haskel responded to the National Solid Wastes Management Association and various waste haulers which challenged the city’s flow control ordinance passed in September. NSWMA has asked the court to approve a preliminary injunction to stop the ordinance from going into effect while the challenge works its way through the courts.

Dallas has already agreed to hold off implementing the ordinance until at least 30 days following the court’s ruling on the preliminary injunction, scheduled for Jan. 12.

The flow control ordinance dictates that all waste picked up in the city must be taken to either McCommas Bluff Landfill or the Bachman Transfer Station, both owned by the city. Waste Management Inc. operates two landfills right outside of the city and Republic Services Inc. operates one right outside of the city.

Previously, NSWMA argued the flow control ordinance violates the various franchise agreements it has with haulers and the ordinance is contrary to various state and federal laws.

Dallas disagrees.

"[NSWMA and the haulers] purport to identify preemptive conflicts with state law that simply do not exist," Haskel wrote in a filing Dec. 20 in U.S. District Court in Texas.

The 26-page filing, arguing against the preliminary injunction, said nowhere in the franchise agreements does it grant the right for franchises to dispose waste anywhere they want, and it specifically outlines that the franchisees bare the risk of regulatory change.

The city mentions the landmark United Haulers v. Oneida-Herkimer case several times, a previous flow control case that was settled when the U.S. Supreme Court sided with the municipality’s right to institute flow control.

"Plaintiffs’ views are also ultimately incompatible with the Supreme Court’s own assessment of flow control in United Haulers, a case they never once cite," Haskel wrote.

The Supreme Court ruled that police power supports flow control as a legitimate and traditional government function, the city argued in the filing. The state legislature also explicitly authorized municipalities to tackle waste management, the filing said, with cities being able to "adopt rules for regulated solid waste collection, handling, transportation, storage, processing and disposal."

The city argues flow control is the first in a multistep process to "make landfills obsolete by using emerging technologies to reuse the city’s solid waste in the form of energy, fuels and reusable products."

Dallas is the largest city in the country to pass a flow control ordinance, predicting it would bring an additional $13 million to the city annually because of tipping fees. The city estimates that about 700,000 tons to 900,000 tons of waste is picked up annually inside the city and disposed outside the city at private facilities.

NSWMA will be able to respond to the filing before the Jan. 12 preliminary injunction.