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A.G.G. Enters., Inc. v. Washington County, Or.

ELR Citation: 30 ELR 20487
Nos. No. CIV. 99-1097-KI, (D. Or., 04/06/2000)

The court holds that the Federal Aviation Administration Authorization Act (FAAAA) preempts an Oregon county's and city's solid waste collection, storage, transport, and disposal ordinances. The ordinances require anyone transporting solid waste in the city or county to obtain a certificate, license, or permit. However, an applicant must show that the service area has not been allocated to another waste hauler, or is not being served by the certificate holder, or is not being adequately served by the certificate holder and there is a substantial demand from customers in the area for a change of service. The court first holds that the waste hauler challenging the ordinance has standing because it has alleged a redressable injury. The court next holds that the case is ripe for review even though the waste hauler never applied for a certificate. Based on the application process and both governments' failure to ever award new certificates except through ownership transfer, it would have been futile for the waste hauler to pursue applications. The court further holds that it does not need to abstain from hearing the case under Burford v. Sun Oil Co., 319 U.S. 315 (1943).

The court goes on to hold that the solid waste ordinances are preempted by the FAAAA. The FAAAA preempts state or local laws related to a motor carrier's or a motor private carrier's transportation of property. Here, the waste hauler is a motor carrier because it does not perform any service other than transportation. Further, the mixed solid waste collected from commercial and industrial customers by the waste hauler is property under the FAAAA. The waste has an economic value even though it is being discarded by the generators. The court further holds, however, that the ordinances do not violate the dormant U.S. Commerce Clause. The ordinances do not have a primary purpose of regulating interstate commerce, and they do not discriminate against out-of-state interests. Moreover, the burden imposed on interstate commerce is not clearly excessive in relation to the putative local benefits. The court, therefore, enjoins the county and city from enforcing the ordinances against the waste hauler.

Counsel for Plaintiff
Russell M. Allen
Allen, Sheridan & Kreitzberg
425 Columbia Park Bldg.
1099 SW Columbia St., Portland OR 97201
(503) 224-4840

Counsel for Defendants
John M. Junkin
Bullivant, Houser & Bailey
300 Pioneer Tower
888 SW 5th Ave., Portland OR 97204
(503) 228-6351