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NSWMA Legal Mayor's Letter

NSWMA Legal Mayor's Letter

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Published by DallasObserver

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Published by: DallasObserver on Sep 19, 2011
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09/19/2011

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4301 Connecticut Avenue, N.W., Suite 300

Washington, D.C.
20008
202‐244‐4700
Fax: 202‐364
September 19, 2011Mayor Mike RawlingsDallas City Hall 1500Marilla Street Room5EN Dallas, TX 75201Dear Mayor Rawlings:It is the National Solid Wastes Management Association’s (NSWMA) understanding that City staff will provide an additional “flow control” briefing to the Council in support of their proposed flowcontrol ordinance. NSWMA’s members continue to oppose this proposal and firmly believe thatalternative proposals would better serve the City’s and its commercial sector’s interest. NSWMA believes it is in the best interests of the citizens and commercial businesses in Dallas, Cityleaders, and our members to work together and allow free enterprise to continue rather than have citygovernment mandate where businesses must dispose of their waste and how much those businessesshould pay. While NSWMA and our local members remain willing to work with the City on itsrevenue and resource recovery plans, we continue to oppose the City’s attempt to implement a “flowcontrol” scheme that requires disposal of all commercial and industrial wet waste, dry waste, and other waste material at the McCommas Bluff Landfill.A vote by the City Council to adopt a flow control ordinance will not be simple, straightforward, or free of legal risk and liability as you have been led to believe. Instead, it invites legal challenges andconsequences that will be needlessly detrimental for the City and will prohibit the City from realizingthe increase in revenue that it seeks. The purpose of this letter is to make sure that you are fullyinformed before making a decision that will have severe and unwanted consequences.1
 
1. The Legal Obstacles and Consequences of Adopting Flow ControlFirst, the City Council does not have the authority to implement flow control. By adopting a flowcontrol ordinance, the City would be illegally attempting to modify its Charter. A home rule city – such as Dallas – cannot modify or repeal any portion of its Charter without holding a public election.Chapter XIV of the City’s Charter is quite clear that the City Council “shall have the power” to confer upon a general public service provider a franchise to use the public streets to furnish to the public ageneral public service of benefit, including solid waste disposal. As noted below, the City hasconferred such franchises with the resulting legal ramifications. If the City Council adopts a flowcontrol ordinance, it would purport to strip the Council of its power to enter into a general publicservice franchise for the provision of solid waste disposal services. Texas law is clear that the onlyway to modify the City’s Charter is through a general election of the qualified voters. Indeed, thecitizens of Dallas should be required to vote on an issue as significant as whether to destroy freeenterprise and replace it with a government run waste disposal monopoly.Second, it is our understanding that the City currently has approximately 180 franchise agreements thatgrant companies the right to use the City’s streets to collect, transport, and dispose of waste, and inreturn these companies pay the City a franchise fee. It is important to know that the City’s ability toamend these franchise agreements has important limitations. If the City intends to claim that it isadopting flow control as part of its reasonable police powers (which NSWMA neither acknowledgesor accepts), the City is required to give each franchisee notice and allow the franchisee an opportunityto be heard. To the extent that this language appears in each of our members’ franchise agreements,we can confidently state that each member will demand a public hearing on the City’s attempt tomodify their franchise agreement.Third, we know that the City staff has relied upon the U.S. Supreme Court’s decision in the
Oneida- Herkimer 
case to advise you that flow control is legal.
United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth.
, 550 U.S. 330, 127 S. Ct. 1786 (2007). However, there is an importantdifference between the legality of flow control from a Commerce Clause perspective and the legalityof flow control in all circumstances. While the Commerce Clause was apparently the only basis inwhich the flow control scheme was challenged in
Oneida-Herkimer 
, that will not be the case here. Asyou know, NSWMA’s members each have existing franchise agreements that confer upon our members the right to collect and dispose of waste. No such agreements existed in the
Oneida- Herkimer 
case. The existing franchise agreements, the United States and Texas Constitutions, andTexas statutes give rise to additional rights and claims that the litigants in
Oneida-Herkimer 
simply didnot have.Fourth, there is no dispute that the City’s current solid waste collection, transportation, and disposalsystem has worked well and has protected the health, safety, and welfare of the citizens of Dallas for many years. To move from a free enterprise system where solid waste providers have franchiseagreements with the City and exclusive contracts with commercial customers, to a2

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