News
Law Practice
Aug. 15, 2002
Good Days Illuminate Pleasures of Law
Dicta Column - By John Kortum - As days go for a lawyer representing garbage companies, the other day was a very good day - but the kind of day only another lawyer can appreciate.
Dicta Column
By John Kortum
As days go for a lawyer representing garbage companies, the other day was a very good day - but the kind of day only another lawyer can appreciate. We had the pleasure of learning in the morning that we had made the world safe for our client, an independent recycler whose business was threatened by the local franchised collector, and, in the afternoon, of learning that our brief-writing efforts a year ago had helped make the world safe for our other clients who are exclusive franchisees.
In a single day, we struck blows both for and against the almighty institution of the exclusive franchise. If consistency is a virtue, however, we were as virtuous as lawyers can be, for in each matter our clients' interests were advanced, the results of each did not undermine the other, and the public welfare was bettered.
Here's the tale.
Our recycling client collects mixed solid waste in the city, rough sorts it in the city and then hauls it outside the city to the county for final sorting and composting. Most of this becomes a rich compost that farmers love. The last residue of plastics and such, however, became a problem because our recycler hauled it from the county to a landfill and that, said the county, flew in the face of the exclusive franchise granted by the county to a major national conglomerate.
The franchise prevented the specific act of collecting waste in the exclusive franchise area and the disposal of materials so collected but did not control handling between collecting and disposal. We, therefore, counseled our client, as part of its waste handling process, to haul the residue back from its composting site in the county to its facility in the city, conduct a final sort there and then ship it to the landfill of its choice. This process is clumsy, but it is cheaper than having the residue hauled and disposed of by the national conglomerate, and those savings could be passed on to customers.
On the morning of this good day, we received notice that the county agreed that the new processing system does not violate the exclusive franchise. The county thereby, in effect, supported our client's role in making the city one of the few in California to achieve the statutory goal of recycling at least 50 percent of mixed solid waste.
That afternoon we received a ruling in favor of another client, which upheld an exclusive franchisee's right to control garbage collection. This case started about a year ago, when we were asked by this client, a garbage company that enjoys the privileges and responsibilities of several exclusive franchises, to draft an amicus curiae brief in a case pending in the 9th U.S. Circuit Court of Appeal. The case used the Federal Aviation Administration Authorizing Act of 1994, which deregulated various transportation sectors, to challenge a local franchise ordinance. A lower court had ruled that the aviation act pre-empted exclusive franchises for municipal solid waste handling, and that decision was being tested on appeal.
When we first met with counsel on our client's side of the issue, nobody mentioned defending the local franchise ordinance on the basis of the comprehensive federal scheme, the Resource Conservation and Recovery Act, which regulates the handling of solid waste. The act recognizes that solid waste is traditionally, and should remain, a matter of local control, but it imposes a framework for solid waste handling and environmental protection. With others, we filed a brief with the 9th Circuit arguing that the recovery act, not the aviation act, controlled solid waste handling on the federal level, and permits exclusive franchises to control solid waste handling. This scheme tightly controls the manner in which the franchisees pick up and dispose of garbage and avoid disease and vermin, which advances public safety. The system works; deregulating it under an aviation statute courts danger to the public weal.
In the afternoon of this good day, we learned that the Court of Appeal agreed with our position in its decision, AGG Enterprises v. Washington County, 281 F.3d 1324 (9th Cir. 2002).
The court noted that Congress in the recovery act recognized that "waste hauling is a traditional state and local function subject to state regulation." The court ruled that the aviation act does not deregulate the traditional local control of waste hauling. The court's decision protected public safety and our good client's business.
So, on that day, we both avoided and advanced the exclusive franchise institution.
This result might seem to some to be contradictory and without coherent ideology or legal position. Some may think we were just behaving as many expect lawyers to behave. But as Emerson put it, a "foolish consistency is the hobgoblin of little minds," and that's especially true in the practice of law. Every client's interest, set of facts and application of law is different. To recognize those differences and use them to achieve successful results for our clients is the art of lawyering.
Our consistency lies in advocacy, our livelihood, and when it works we have a good day.
John Kortum is an associate with the Walnut Creek office of Archer Norris.
By John Kortum
As days go for a lawyer representing garbage companies, the other day was a very good day - but the kind of day only another lawyer can appreciate. We had the pleasure of learning in the morning that we had made the world safe for our client, an independent recycler whose business was threatened by the local franchised collector, and, in the afternoon, of learning that our brief-writing efforts a year ago had helped make the world safe for our other clients who are exclusive franchisees.
In a single day, we struck blows both for and against the almighty institution of the exclusive franchise. If consistency is a virtue, however, we were as virtuous as lawyers can be, for in each matter our clients' interests were advanced, the results of each did not undermine the other, and the public welfare was bettered.
Here's the tale.
Our recycling client collects mixed solid waste in the city, rough sorts it in the city and then hauls it outside the city to the county for final sorting and composting. Most of this becomes a rich compost that farmers love. The last residue of plastics and such, however, became a problem because our recycler hauled it from the county to a landfill and that, said the county, flew in the face of the exclusive franchise granted by the county to a major national conglomerate.
The franchise prevented the specific act of collecting waste in the exclusive franchise area and the disposal of materials so collected but did not control handling between collecting and disposal. We, therefore, counseled our client, as part of its waste handling process, to haul the residue back from its composting site in the county to its facility in the city, conduct a final sort there and then ship it to the landfill of its choice. This process is clumsy, but it is cheaper than having the residue hauled and disposed of by the national conglomerate, and those savings could be passed on to customers.
On the morning of this good day, we received notice that the county agreed that the new processing system does not violate the exclusive franchise. The county thereby, in effect, supported our client's role in making the city one of the few in California to achieve the statutory goal of recycling at least 50 percent of mixed solid waste.
That afternoon we received a ruling in favor of another client, which upheld an exclusive franchisee's right to control garbage collection. This case started about a year ago, when we were asked by this client, a garbage company that enjoys the privileges and responsibilities of several exclusive franchises, to draft an amicus curiae brief in a case pending in the 9th U.S. Circuit Court of Appeal. The case used the Federal Aviation Administration Authorizing Act of 1994, which deregulated various transportation sectors, to challenge a local franchise ordinance. A lower court had ruled that the aviation act pre-empted exclusive franchises for municipal solid waste handling, and that decision was being tested on appeal.
When we first met with counsel on our client's side of the issue, nobody mentioned defending the local franchise ordinance on the basis of the comprehensive federal scheme, the Resource Conservation and Recovery Act, which regulates the handling of solid waste. The act recognizes that solid waste is traditionally, and should remain, a matter of local control, but it imposes a framework for solid waste handling and environmental protection. With others, we filed a brief with the 9th Circuit arguing that the recovery act, not the aviation act, controlled solid waste handling on the federal level, and permits exclusive franchises to control solid waste handling. This scheme tightly controls the manner in which the franchisees pick up and dispose of garbage and avoid disease and vermin, which advances public safety. The system works; deregulating it under an aviation statute courts danger to the public weal.
In the afternoon of this good day, we learned that the Court of Appeal agreed with our position in its decision, AGG Enterprises v. Washington County, 281 F.3d 1324 (9th Cir. 2002).
The court noted that Congress in the recovery act recognized that "waste hauling is a traditional state and local function subject to state regulation." The court ruled that the aviation act does not deregulate the traditional local control of waste hauling. The court's decision protected public safety and our good client's business.
So, on that day, we both avoided and advanced the exclusive franchise institution.
This result might seem to some to be contradictory and without coherent ideology or legal position. Some may think we were just behaving as many expect lawyers to behave. But as Emerson put it, a "foolish consistency is the hobgoblin of little minds," and that's especially true in the practice of law. Every client's interest, set of facts and application of law is different. To recognize those differences and use them to achieve successful results for our clients is the art of lawyering.
Our consistency lies in advocacy, our livelihood, and when it works we have a good day.
John Kortum is an associate with the Walnut Creek office of Archer Norris.
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