City's Response to Flow Control Lawsuit: It's Our Landfill, And We'll Do What We Want
On the first day of Hanukkah (that is to say, Tuesday) my city gave to me its response to the federally filed lawsuit in which the National Solid Wastes Management Association insists the city's new ordinance driving all trash to the McCommas Bluff Landfill is "extraordinarily anti-free-enterprise." Catchy, no? And, sure, nothing says, "Happy Christmas!" like another flow control item -- but the city, which is to say you, be paying Gibson, Dunn & Crutcher a lot of money ($175,000, for starters, and we're still three weeks away from the first hearing) for this lengthy riposte, so you might as well enjoy the read.
As always, the docs follow -- in this case, a 33-page now-look-here that opens with a swift kick to the dumpster (opening lines: "Contrary to Plaintiffs' contentions, there is no constitutional right to operate a landfill. This lawsuit is Plaintiffs' attempt to accomplish through litigation what they failed to accomplish through the political process"), tumps a trashcan over the waste-haulers' collective heads ("Plaintiffs nevertheless insist that this was nothing more than the City acting in a proprietary capacity to advance its own economic self-interest") and proceeds to bang on that wastebasket with a rolled-up copy of a previous Supreme Court ruling involving this very issue ("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").
An excerpt, and we're not even out of the introduction yet:
The stakes here are high: Plaintiffs are asking the Court to presume that the City assigned away its sovereign power to decide the location of waste disposal in the City for the twenty-year duration of the agreement, and to conclude that the Constitution precludes the City from enacting ordinary social and economic legislation. There is nothing, however, in the contract or the Constitution that supports Plaintiffs' request. This is precisely the kind of issue properly left to the political process, and the federal judiciary has no obvious role in declaring the proper wastemanagement policies of a state municipality. Plaintiffs are profoundly wrong to insist that the federal judiciary inject itself in the middle of this local policy issue.
From there it's on to "The History And Future Of The City's Waste Management," a chapter clearly lifted from my dream journal. When I first mentioned Gibson Dunn's involvement a few weeks ago, several Friends of Unfair Park promised first-rate prose. At the risk of logrolling in our time: This filing isn't a waste of your time.
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