Clackamas County tentatively supports lawsuit over waste fees
UPDATED — FRIDAY, APRIL 2: Clackamas County commissioners were initially supportive of an ordinance change on waste disposal fees that would allow residents to pursue a legal action against Metro for allegedly breaking its charter.
County commissioners unanimously passed the first of two public readings of the ordinance after hearing public testimony on Tuesday, April 1.
According to John DiLorenzo — attorney for David Hoover, Thomas Riley and other garbage customers in Clackamas County and partner at Portland-based Davis Wright Tremaine — the new ordinance would allow his clients to hold Metro accountable to charge fees only based only on the actual cost of providing waste service.
DiLorenzo's clients are alleging in court that Metro is in violation of its charter for charging the same fee for disposal of "wet" and "solid" waste.
According to DiLorenzo — who has been successful in suing governments, most recently the $1 billion timber lawsuit against the state on behalf of 13 Oregon counties — wet waste is everything that goes into a garbage bin, while solid waste is mostly construction debris that Metro spends money to recover materials from.
"Yet Metro charges the same fee for all garbage, which in our view means Metro is charging garbage customers more than the actual cost of providing their service to subsidize construction contractors," DiLorenzo said. "That's what the lawsuit is all about."
But DiLorenzo said that he can't "get to first base" without proving in court that garbage customers would be impacted by reductions in Metro's "tipping" fee, the cost of disposing waste at a Metro-operated transfer station.
According to DiLorenzo, Metro's position is that ratepayers have no standing to even question what Metro is doing in court, unless they can prove that the result from the court will actually have an impact on the ratepayers.
The proposed ordinance would provide that legal basis for DiLorenzo's clients to continue with their lawsuit.
According to county staff, the Board of County Commissioners already has the authority to raise and lower residential garbage rates based on whether Metro's costs go up or down. Staff informed the board that twice in the past two decades Metro has lowered its fee but the county kept rates for residential customers flat.
According to Rick Winterhalter, county sustainability analyst, a $10 reduction in Metro's "tipping" fee would result in an approximately 50-cent reduction at the curb for ratepayers. Commissioner Paul Savas did some quick, back-of-the-napkin math and relayed that a $1 reduction would be about a nickel per month less for ratepayers and questioned, at what point do you really need to make these changes over cents on the dollar?
"What this ordinance will do is make absolutely certain that if a court orders Metro to reduce its tip fee because it's violating its charter, that reduction will inure directly to the benefit of the garbage customer at the curb," DiLorenzo said. "Now I have to tell you that I am flabbergasted that a government like Metro would take a position that it cannot be held accountable to its charter by its citizens. This ordinance will fix that."
County commissioners heard from a handful of people who spoke on the issue including Gladstone resident and government watchdog Les Poole, as well as Eric Fruits, vice president of research at the Cascade Policy Institute, and Richard Burke of the Libertarian Party of Oregon Political Action Committee. All testimony favored the proposed ordinance change, particularly as it related to helping DiLorenzo's clients' court case in holding Metro accountable to its ratepayers.
"Metro is completely out of touch," Poole said. "They've demonstrated that over and over. Currently they're compensating $40 to $120 million to relocate their transfer center, and here we are today hearing that Metro, literally, is refusing to do the right thing."
Fruits argued that the concept behind the ordinance is simple: If costs go down, consumers should get the benefit of that cost reduction.
"Nevertheless, opponents of this ordinance act as if this is the craziest idea in the world: Why would we ever reduce garbage rates? The short answer is because consumers, your voters, expect and deserve to experience the benefits of those lower costs," Fruits said. "None of your constituents are going to scratch their head and say, 'Oh gee, I really wish the county made me pay more.'"
County commissioners had many questions and requested staff to chime in to clarify on more than a dozen occasions over the nearly hour-long discussion.
Commissioner Sonya Fischer asked why, if the county already has the ability to raise and lower the fee garbage customers pay to franchisees, would the board pass a new ordinance that limits its own discretion to set the fee.
County Chair Tootie Smith responded.
"For this board, to pass on those rate reductions to the ratepayers is the right thing to do. That's why it's good public policy — because it's the right thing to do. And I will remind this board, once again, that it is not our money. It is not the county's money, and it is not Metro's money," Smith said. "None of us would exist, or even sit at this dias if it hadn't been for the generous taxpaying people of Clackamas County. That's why it's good public policy."
In a statement Friday, April 2, Metro Senior Public Affairs Specialist Nick Christensen noted that the initial lawsuit filed by DiLorenzo on behalf of his clients was dismissed "with prejudice" by Clackamas County Circuit Court Judge Susie L. Norby on March 15. Christensen also pointed out that the county's solid waste advisory commission convened in March to review the proposed ordinance change and recommended the board honor the process currently established by county code which provides the board full authority and discretion to increase or decrease fees.
"We carefully and thoroughly review rates every year, and those rates are in turn reviewed by an independent third party. They've been structured this way, in compliance with the Metro Charter, since 1992. Our rates help deliver efficient garbage service around the region, including to self-haul customers, while also protecting the environment," Christensen said. "This proposal is nothing more than a way to use the Clackamas County Commission to revive a lawsuit that has already been dismissed. These kinds of frivolous lawsuits also increase costs to customers, and we hope the county commission doesn't pass a resolution that makes more frivolous litigation likely."
The board will read the ordinance and hear public testimony again on Thursday, April 15. Anyone interested in speaking on this issue is encouraged to attend the board's business meeting in person or register via Zoom at least five minutes after the start of the meeting.
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