Next Week, Federal Judge to (Temporarily) Decide Fate of City's Flow Control Ordinance

Tomorrow, the Dallas City Council will go behind closed doors to meet with city attorneys about a host of legal issues staring down City Hall, among them: a long-going federal wrongful arrest suit about to get even more expensive (council will vote next week to pay Brown & Hofmeister an additional $50,000, bringing its total legal bill to $150,000), legal issues concerning the hiring and firing of municipal judges (hello, Phyllis Brown) and National Solid Wastes Management Association, et al. v City of Dallas. Let's work backwards.

In mid-November, as you surely recall, the National Solid Wastes Management Association made good on its promise to sue the city over the so-called flow control ordinance that, if and when it's enacted, will send all solid waste collected in the city limits to city-owned facilities, chief among them the McCommas Bluff Landfill in far southeastern Dallas. The city claims it will increase revenue by $15 million to $18 million annually, and the waste-haulers are hoping to get a federal judge to stop the ordinance before it goes into effect January 2.

Their reasons are myriad and detailed in the docs filed last week in support of their application for a preliminary injunction. But long story short:

The Ordinance does not identify, nor was it intended to address, any current or reasonably foreseeable problem with the collection, transportation, and disposal of solid wastes or the management of recyclables generated or found in the City. The sole purpose of the Ordinance is to divert revenue to the City by creating a monopoly in Dallas for solid waste disposal and recycling. That monopoly comes at the expense of franchisees who have invested heavily in reliance on their franchise rights and customers who will be paying more for solid waste services. The Ordinance violates the United States and Texas Constitutions as well as federal antitrust laws, and is preempted by state law. Its enforcement should be enjoined.

So far the city's response to the suit has been short and sweet: "The City carefully studied court cases involving resource flow control laws before enacting its ordinance. The City believes its ordinance is valid and will defend it vigorously." But sooner than later city attorneys will have to come up with something a little longer than that: Last week U.S. District Judge Reed O'Connor gave the city till Friday to file its response in advance of a preliminary injunction hearing scheduled for 1:30 p.m. December 15.


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