[Posted December 12, 2000]
GRRN has endorsed the filing of an amicus brief in the United States Court of Appeals for the Ninth Circuit supporting AGG Enterprises, Inc., a waste hauler and recycler, which challenged the exclusive franchise system of Washington County, Oregon, on the basis that the franchise system was preempted by federal transportation law. AGG won at the trial (District) Court level. The County appealed, backed by a number of amicus briefs from waste haulers such as Norcal, associations such as the California Refuse Removal Council, and other government agencies including the California State Association of Counties and numerous cities including Glendale, Hawthorne, Monterey and San Francisco.
The sole issues before the Ninth Circuit are 1) whether a local government may, by exclusive franchise, prohibit the holder of a federal trucking permit from transporting property within that jurisdiction; 2) whether the term "property" includes material that is in fact recycled, or waste, or both; and 3) whether AGG is a motor carrier as defined by the federal statute. The amicus brief endorsed by GRRN will support the proposition that federal law preempts a franchise system from prohibiting the transportation of materials that are in fact recycled, by a federal trucking permit holder. The amicus brief will not assert that the preemption applies to waste hauling.
The scope and text of the amicus brief will be nearly identical to what was filed on behalf of numerous associations in the case of Woodfeathers v. Washington County 180 F.3d 1017 (9 Cir 1999). A copy of the amicus brief in the Woodfeathers case can be found on-line at http://www.recyclelaw.com/woodf.htm. In Woodfeathers, unlike AGG, the Ninth Circuit had before it the issue of whether the franchise system was unconstitutional under the Commerce Clause. AGG raised the Commerce Clause issue and lost on that issue in the District Court and has not appealed from that decision so that the constitutionality of the franchise system is not before the Ninth Circuit in AGG. In AGG, unlike Woodfeathers, there is no procedural "abstention" issue that was the basis for the Court's ruling in Woodfeathers.
If the Ninth Circuit were to rule consistently with the District Court, supported by GRRN's amicus brief, a local government could not prohibit the collection and transportation of material, that is in fact recycled, by the holder of a federal trucking permit.
The question of mixed loads must be addressed if one defines "property" by material that is in fact recycled. The GRRN brief will attest that local governments can and do regulate the percent of solid waste that can be in a mixed load before it becomes a load of solid waste but that local government cannot ban competitive collection of recyclables.
Unlike the Woodfeathers case, which was almost beneath the radar screen of the major haulers and government associations, these entities have organized in strength for the AGG case.
GRRN will post its AGG amicus brief when it is finalized. The present filing deadline is December 21, 2000.