Can a Mississippi regional solid waste authority sign a 30-year contract with a developer for a landfill gas project?

Plain-English summary

Three Rivers Solid Waste Management Authority is a regional public body whose 14 commissioners serve four-year staggered terms. The Authority wanted to sign a contract with a developer for a landfill gas utilization project, the kind of arrangement where a developer captures methane from a landfill and converts it into a useful energy product over a long horizon. The contract term contemplated was 30 years, which is far longer than any single commissioner's term.

That triggers a basic rule of Mississippi public-body contracting: a governing body cannot bind its successors unless it has express statutory authority to do so. Otherwise the next board could refuse to honor the deal. The AG identified Section 17-17-317(h) as the express authority that solves the problem here. That subsection of the Regional Solid Waste Management Authority Act expressly authorizes the Authority to enter contracts for a term not exceeding 30 years for the construction, operation, and maintenance of "projects" as the statute defines them.

So the answer is yes, with one factual prerequisite. The Authority's commissioners must first determine, on the minutes, that the proposed landfill gas project fits the statute's definition of "project." Once that finding is in the minutes, the 30-year term is supported by express statutory authority and binds successor commissioners.

What this means for you

For regional solid waste authorities and their counsel

The opinion sets out two requirements for a 30-year project contract. The board of commissioners must make the factual determination that the proposed project (here, a landfill gas utilization project) meets the statutory definition of "project" in Section 17-17-305(q), which covers the collection, transportation, management, and disposal of municipal solid waste plus property used in connection with the composting, extraction, treatment, processing, utilization, or final disposal of resources in solid waste, "including the conversion of municipal solid waste or resources contained therein into compost, oil, charcoal, gas, steam, or any other product or energy source." And, per the AG, "[a]ny such factual determination should be spread upon the Authority's minutes." With both in place, Section 17-17-317(h) supplies the express authority for the 30-year term.

For developers contracting with Mississippi solid waste authorities

The opinion turns on the rule from Northeast Mental Health: a Mississippi governing body "may not bind their successors in office by contract, unless expressly authorized by law," and a contract entered without that express authority is "voidable at the discretion of the successor governing body." The AG concluded that Section 17-17-317(h) supplies the express authority for a solid waste authority project contract up to 30 years, but only if the project meets the statutory definition and the board's determination is spread on its minutes.

For lawyers advising counties or municipalities considering a long-term solid-waste partnership

The same statute lets the local government on the receiving end of authority services contract for the same 30-year term. Section 17-17-317(h) says the contracting authority is "specifically granted to municipalities and counties and to the authority to enter into contracts, lease agreements, or other undertaking relative to the furnishing of project activities and facilities or either of them by the authority to such municipalities and counties and by such municipalities and counties to the authority for a term not exceeding thirty (30) years."

Common questions

Why is the "successor governing body" rule the central legal issue here?

Mississippi follows a longstanding rule that a governing body cannot strip its successors of the discretionary powers conferred on them by law. So when a current board signs a 30-year deal, it is in effect deciding on behalf of seven future boards. That is impermissible unless the legislature has expressly said it is permissible, in which case successors are bound. See Northeast Mental Health-Mental Retardation Comm'n v. Cleveland, 187 So. 3d 601 (Miss. 2016), a Mississippi Supreme Court decision (the "So. 3d" reporter is the regional reporter for Mississippi state cases).

Where does the statutory authority for 30 years come from?

Section 17-17-317(h) of the Regional Solid Waste Management Authority Act. The subsection expressly grants authorities, counties, and municipalities the power to enter contracts and leases for "project" activities for a term "not exceeding thirty (30) years."

Does this 30-year authority extend to any contract a solid waste authority might sign?

The opinion ties the 30-year authority to contracts and leases for "projects" as the Act defines them; that is the express authority the AG identified. The opinion does not address contracts outside the "project" definition, so it does not extend the 30-year authorization to them.

What counts as a "project" under the Act?

Section 17-17-305(q) defines it as collection, transportation, management, and disposal of municipal solid waste, including closure and post-closure work, plus property (real or personal) used in connection with composting, extraction, collection, storage, treatment, processing, utilization, or final disposal of resources contained in solid waste. The definition expressly includes converting solid waste or its resources into compost, oil, charcoal, gas, steam, or any other product or energy source. A landfill gas utilization project fits.

Why does the AG keep emphasizing minutes?

Because in Mississippi, public boards "speak only through their minutes." A board's factual finding (here, that the project meets the statutory definition) only has legal effect once it is recorded in the board's minutes. See Dhealthcare Consultants, Inc. v. Jefferson Cnty. Hosp., 232 So. 3d 192, 194 (Miss. Ct. App. 2017), a Mississippi Court of Appeals decision (the regional reporter "So. 3d" plus "Miss. Ct. App." in the parenthetical confirms it is a Mississippi state appellate case).

Can the Authority enter a contract longer than 30 years?

The express authority in Section 17-17-317(h) caps at 30 years. Going longer would put the Authority back in the territory where the successor rule may invalidate the contract, absent some other express statutory authorization.

Background and statutory framework

Mississippi Regional Solid Waste Management Authority Act, Sections 17-17-301 et seq. Authorizes the formation of regional solid waste authorities as political subdivisions, governed by boards of commissioners drawn from member counties and municipalities, with statutory powers to develop and operate solid-waste projects.

Section 17-17-305(q) defines "project" broadly to cover both the operational solid-waste activities (collection, transport, management, disposal, including closure and post-closure) and the physical property used in solid-waste processing and energy conversion.

Section 17-17-317(h) sets out the contracting and leasing powers of authorities and explicitly grants 30-year contract terms for project-related contracts and leases. The subsection expressly extends to municipalities and counties on either side of a project services arrangement with an authority.

Section 17-17-313(1) provides that "[a]ll powers of the [A]uthority shall be vested in the board of commissioners," which is why the project-finding determination has to be a board action recorded in board minutes.

The successor rule. Northeast Mental Health-Mental Retardation Comm'n v. Cleveland, 187 So. 3d 601 (Miss. 2016), holds that a governing body cannot bind its successors unless expressly authorized by law. Section 17-17-317(h) is the express authorization for the 30-year solid-waste-project contract.

Citations

• Miss. Code Ann. § 17-17-317(h)
• Miss. Code Ann. § 17-17-305(q)
• Miss. Code Ann. § 17-17-313(1)
• Miss. Code Ann. § 17-17-3(y)
• Ne. Mental Health-Mental Retardation Comm'n v. Cleveland, 187 So. 3d 601 (Miss. 2016)
• Dhealthcare Consultants, Inc. v. Jefferson Cnty. Hosp., 232 So. 3d 192 (Miss. Ct. App. 2017)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/09/T.Cardin-August-30-2024-Authoritys-Ability-to-Contract-with-Developer-for-a-Term-Not-to-Exceed-30-Years.pdf

Original opinion text

August 30, 2024
Tommie S. Cardin, Esq.
Attorney, Three Rivers Solid Waste Management Authority
Post Office Box 6010
Ridgeland, Mississippi 39158-6010
Re:

Authority's Ability to Contract with Developer for a Term Not to Exceed 30 Years

Dear Mr. Cardin:
The Office of the Attorney General has received your request for an official opinion. Background According to your request, Three Rivers Solid Waste Management Authority (the "Authority") is a political subdivision organized and existing under the Mississippi Regional Solid Waste Management Authority Act (the "Act"), Mississippi Code Annotated Sections 17-17-301, et seq., and is governed by a fourteen-member board of commissioners representing its member counties and municipalities. Board members serve four-year staggered terms. Question Presented May the Authority enter a contract with a qualified developer for its landfill gas utilization project when such contract is binding between the Authority's board of commissioners and a developer for a term not to exceed 30 years? Brief Response If the Authority's board of commissioners makes the factual determination that the proposed landfill gas utilization project meets the statutory definition of "project," Section 17-17-317(h) gives the Authority the express authority to enter a contract binding the Authority's board of commissioners and a developer for a term not to exceed 30 years.

Applicable Law and Discussion
As noted in your request, the Mississippi Supreme Court has been clear that "governing bodies, whether they be elected or appointed, may not bind their successors in office by contract, unless expressly authorized by law, because to do so would take away the discretionary rights and powers conferred by law upon successor governing bodies." Ne. Mental Health-Mental Retardation Comm'n v. Cleveland, 187 So. 3d 601, 604 (Miss. 2016) (emphasis added). Any contract entered without such express authority is "voidable at the discretion of the successor governing body." Id. Section 17-17-317(h) expressly gives the Authority the following powers:
[t]o make contracts and leases with any person or public agency and to execute all instruments necessary or convenient for construction, operation, and maintenance of projects and leases of projects; and including the closure, post-closure maintenance and any required corrective action involving a project provided that all private persons, firms, and corporations, this state, and all units of local government, departments, instrumentalities, or agencies of the state or of local government are authorized to enter into contracts, leases or agreements with the authority, upon such terms and for such purposes as they deem advisable; and, without limiting the generality of the above, authority is specifically granted to municipalities and counties and to the authority to enter into contracts, lease agreements, or other undertaking relative to the furnishing of project activities and facilities or either of them by the authority to such municipalities and counties and by such municipalities and counties to the authority for a term not exceeding thirty (30) years[.] (emphasis added). The Act defines "person" as "any individual, trust, firm, joint-stock company, public or private corporation (including a government corporation), partnership, association, state, or any agency or institution thereof, municipality, commission, political subdivision of a state or any interstate body." Miss. Code Ann. § 17-17-3(y); see also Miss. Code Ann. § 17-17-305(o). "Project" is defined as: (i) The collection, transportation, management and disposal of municipal solid waste, including closure and post-closure and any property, real or personal, used as or in connection with a facility for the composting, extraction, collection, storage, treatment, processing, utilization, or final disposal of resources contained in solid waste, including the conversion of municipal solid waste or resources contained therein into compost, oil, charcoal, gas, steam, or any other product or energy source and the collection, storage, treatment, utilization, processing, or final disposal of solid waste in connection with the foregoing; and (ii) Any property, real or personal, used as or in connection with a facility for the composting, extraction, collection, storage, treatment, processing and the conversion of such resources into any compost or useful form of energy. Miss. Code Ann. § 17-17-305(q). Narrowing this down to address your specific question, Section 17-17-317(h) gives the Authority the power to "make contracts . . . with any person . . . for construction, operation, and maintenance of projects and leases of projects; . . . and, without limiting the generality of the above, authority is specifically granted . . . to the authority to enter into contracts . . . for a term not exceeding thirty (30) years[.]" (emphasis added). Accordingly, if the Authority's board of commissioners makes the factual determination that the proposed landfill gas utilization project meets the statutory definition of "project," Section 17-17-317(h) gives the Authority the express authority to enter a contract binding the Authority's board of commissioners and a developer for a term not to exceed 30 years. Any such factual determination should be spread upon the Authority's minutes. See Dhealthcare Consultants, Inc. v. Jefferson Cnty. Hosp., 232 So. 3d 192, 194 (Miss. Ct. App. 2017) ("The law in Mississippi is well established that public boards speak only through their minutes and their actions are evidenced solely by entries on the minutes."). If this office may be of any further assistance to you, please do not hesitate to contact us. Sincerely, LYNN FITCH, ATTORNEY GENERAL By:

/s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General

See Miss. Code Ann. § 17-17-313(1) ("All powers of the [A]uthority shall be vested in the board of commissioners.")