Waste Management Holdings, Inc. v. Gilmore ( 2001 )


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  •                                             Filed:   June 11, 2001
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 00-1185
    (CA-99-425, CA-99-443)
    Waste Management Holdings, Inc., et al.,
    Plaintiffs - Appellees,
    versus
    James S. Gilmore, III, etc., et al.,
    Defendants - Appellants.
    O R D E R
    The court amends its opinion filed June 4, 2001, as follows:
    On page 4, first full paragraph, line 7, and page 15, footnote
    7, line 4 -- the name “John Woodley” is corrected to read “John
    Paul Woodley.”
    On page 48, first paragraph, line 3 -- “Id.” is corrected to
    read “id.”
    For the Court - By Direction
    /s/ Patricia S. Connor
    Clerk
    PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    WASTE MANAGEMENT HOLDINGS,
    INCORPORATED; HALE INTERMODAL
    MARINE COMPANY; WEANACK LAND
    LIMITED PARTNERS; CHARLES CITY
    COUNTY; BRUNSWICK WASTE
    MANAGEMENT FACILITY,
    Plaintiffs-Appellees,
    v.
    JAMES S. GILMORE, III, in his official
    capacity as Governor of the
    Commonwealth of Virginia; JOHN
    PAUL WOODLEY, JR., in his official
    No. 00-1185
    capacity as Secretary of Natural
    Resources; DENNIS TREACY, JR., in
    his official capacity as Director of
    the Virginia Department of
    Environmental Quality,
    Defendants-Appellants.
    GLEN BESA; CAMPAIGN VIRGINIA;
    JOHN H. HAGER, Honorable; EMILY
    COURIC, Senator; MARGARET
    WHIPPLE, Senator; BRUCE JAMERSON;
    MARK A. MINER; LILA YOUNG,
    Movants.
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Richmond.
    James R. Spencer, District Judge.
    (CA-99-425, CA-99-443)
    Argued: December 7, 2000
    Decided: June 4, 2001
    Before WIDENER and KING, Circuit Judges, and
    HAMILTON, Senior Circuit Judge.
    _________________________________________________________________
    Affirmed in part, vacated in part and remanded by published opinion.
    Senior Judge Hamilton wrote the opinion. Judge Widener wrote a
    concurring opinion (specifying that he concurs in all parts of the
    court's opinion except Part IV.A, but concurs in the result that Part
    IV.A obtains). Judge King wrote an opinion concurring in part and
    dissenting in part.
    _________________________________________________________________
    COUNSEL
    ARGUED: Stewart Todd Leeth, Assistant Attorney General, Rich-
    mond, Virginia, for Appellants. Evan Mark Tager, MAYER,
    BROWN & PLATT, Washington, D.C.; Timothy George Hayes,
    HUNTON & WILLIAMS, Richmond, Virginia, for Appellees. ON
    BRIEF: Mark L. Earley, Attorney General of Virginia, William H.
    Hurd, Solicitor General, Roger L. Chaffe, Senior Assistant Attorney
    General, Ellen F. Brown, Assistant Attorney General, William E.
    Thro, Assistant Attorney General, Richmond, Virginia, for Appel-
    lants. Kenneth S. Geller, Miriam R. Nemetz, MAYER, BROWN &
    PLATT, Washington, D.C.; D. Alan Rudlin, Shawn A. Copeland,
    HUNTON & WILLIAMS, Richmond, Virginia; Jason S. Thomas,
    HUNTON & WILLIAMS, Raleigh, North Carolina; B. Randolph
    Boyd, RANDOLPH, BOYD, CHERRY & VAUGHAN, Richmond,
    Virginia, for Appellees.
    _________________________________________________________________
    OPINION
    HAMILTON, Senior Circuit Judge:
    In March and April 1999, the Commonwealth of Virginia's (Vir-
    ginia) General Assembly, its legislative body, enacted and the Gover-
    nor of Virginia signed into law five statutory provisions, which,
    collectively, cap the amount of municipal solid waste (MSW) that
    2
    may be accepted by landfills located in Virginia and restrict the use
    of barges and trucks to transport such waste in Virginia. See 
    Va. Code Ann. §§ 10.1-1408.1
    (Q); 10.1-1408.3; 10.1-1454.1(A); 10.1-1454.2;
    10.1-1454.3 (Michie Supp. 2000). The first statutory provision (the
    Cap Provision) caps the amount of waste that any landfill located in
    Virginia may accept.1
    1 
    Va. Code Ann. § 10.1-1408.3
    . The second stat-
    utory provision (the Stacking Provision) requires Virginia's Waste
    Management Board (the Board) to promulgate regulations governing
    the transport of MSW by ship, barge, or other vessel, as well as the
    loading and unloading of such waste. 
    Va. Code Ann. § 10.1
    -
    1454.1(A). This statutory provision requires that such regulations,
    which have yet to be issued, prohibit stacking containerized waste on
    a barge more than two containers high. 
    Id.
     The third statutory provi-
    sion (the Three Rivers' Ban), which pertains to barges, prohibits "the
    commercial transport of hazardous or nonhazardous solid waste . . .
    by ship, barge or other vessel upon the navigable waters of the Rappa-
    hanock, James and York Rivers, to the fullest extent consistent with
    limitations posed by the Constitution of the United States." Va. Code
    _________________________________________________________________
    1 Under the Cap Provision, the amount of MSW a landfill located in
    Virginia may accept is capped at either: (1) 2,000 tons per day or (2) the
    average amount accepted by the landfill in 1998, whichever is greater.
    
    Va. Code Ann. § 10.1-1408.3
    . The Cap Provision also authorizes Virgin-
    ia's Waste Management Board to grant individual requests for excep-
    tions if, after considering "the potential human health, environmental,
    transportation infrastructure, and transportation safety impacts and
    needs," it determines that "(i) [an exception] protects present and future
    human health and safety and the environment; (ii) there is a need for the
    additional capacity; (iii) sufficient infrastructure will exist to safely han-
    dle the waste flow; (iv) the increase is consistent with locality-imposed
    or state-imposed daily disposal limits; (v) the public interest will be
    served by [the increase]; and (vi) the additional capacity is consistent
    with regional and local solid waste management plans developed pursu-
    ant to § 10.1-1411." Id. (incorporating factors set out in amended version
    of § 10.1-1409.1(D)). In addition to these factors, Virginia's Waste Man-
    agement Board must also consider "other factors it deems appropriate to
    protect the health, safety and welfare of the people of Virginia and Vir-
    ginia's environmental and natural resources." Id. Virginia's Waste Man-
    agement Board may not approve an exception from the cap "until a
    public hearing on the proposed increase has been held in the locality
    where the landfill requesting the increase is located." Id.
    3
    Ann. § 10.1-1454.2. The fourth statutory provision (the Trucking Cer-
    tification Provision) prohibits landfill operators from accepting MSW
    from a vehicle with four or more axles "unless the transporter of the
    waste provides certification, in a form prescribed by the Board, that
    the waste is free of substances not authorized for acceptance at the
    facility." 
    Va. Code Ann. § 10.1-1408.1
    (Q). Finally, the fifth statutory
    provision (the Four or More Axle Provision) requires the Board to
    develop regulations governing the "commercial transport" of MSW
    by "any tractor truck semitrailer combination with four or more
    axles." 
    Va. Code Ann. § 10.1-1454.3
    (A), (D). Among other things,
    the Four or More Axle Provision provides that the new regulations
    require, as a condition of carrying MSW on Virginia roads, the own-
    ers of such trucks to make financial assurances that trucks having less
    than four axles or carrying other cargo need not make. 
    Id.
     § 10.1-
    1454.3(A)(2).
    Following the enactment of these statutory provisions, several Vir-
    ginia landfill operators and transporters of MSW and one Virginia
    county (collectively the Plaintiffs)22 commenced this 
    42 U.S.C. § 1983
    action in the United States District Court for the Eastern District of
    Virginia against the following individuals, in their official capacities:
    (1) Virginia's Governor, James Gilmore; (2) Virginia's Secretary of
    Natural Resources, John Paul Woodley; and (3) Virginia's Director of the
    Department of Environmental Control, Dennis Treacy. 3 The Plain-
    tiffs' action challenges the five Virginia statutory provisions on the
    basis that they are violative of the dormant Commerce, Contract, and
    _________________________________________________________________
    2 The Plaintiffs are: (1) Waste Management Holdings, Inc. (Waste
    Management), whose affiliates operate several large landfills in Virginia
    that accept substantial quantities of MSW generated outside Virginia; (2)
    Weanack Land Limited Partners (Weanack), which owns a transfer facil-
    ity on the James River where containerized shipments of MSW are
    offloaded from barges and onto tractor trailers; (3) Hale Intermodal
    Marine Company (Hale), a barging company that transports, among
    other things, containerized MSW; (4) Charles City County, which owns
    property that it leases to Waste Management for use as a landfill; and (5)
    Brunswick Waste Management Facility, L.L.C. (Brunswick), which
    owns and operates a large landfill in Brunswick County, Virginia.
    3 For ease of reference, we refer to these defendants collectively as "the
    Defendants."
    4
    Equal Protection Clauses of the United States Constitution.4
    4 The
    action seeks declaratory and injunctive relief.
    In a published decision dated February 2, 2000, the district court
    held that the five Virginia statutory provisions at issue were violative
    of the Constitution's dormant Commerce Clause, and that the Three
    Rivers' Ban and the Stacking Provision were violative of the Consti-
    tution's Supremacy Clause. Waste Management Holdings, Inc. v. Gil-
    more (Waste Management Holdings III), 
    87 F. Supp.2d 536
    , 545
    (E.D. Va. 2000). Before this court, on several fronts, the Defendants
    challenge the propriety of this decision of the district court.55 For the
    reasons stated below, we affirm in part, vacate in part, and remand for
    further proceedings consistent with this opinion.
    I.
    MSW "generally includes solid waste generated by households,
    commercial activities, institutions, and non-process waste from indus-
    tries." (J.A. 249). The Virginia Department of Environmental Quality
    (DEQ) reported that as of November 1998, there were seventy active
    landfills in Virginia accepting MSW. Although the parties disagree
    over how many of those landfills accept MSW from other states, the
    record is clear that seven "regional" landfills account for ninety-seven
    percent of the out-of-state waste deposited in Virginia. Approximately
    sixty-one "local" landfills accept no out-of-state waste at all. DEQ
    also reported that for the calendar year ending December 31, 1998,
    New York, Maryland, North Carolina, and Washington, D.C.
    exported the largest quantities of MSW into Virginia compared to
    other states or jurisdictions.
    _________________________________________________________________
    4 Hale challenges two of the Virginia statutes, the Three Rivers' Ban
    and the Stacking Provision, on the basis that these statutes are violative
    of the Supremacy Clause of the United States Constitution.
    5 In a published decision dated August 30, 1999, the district court dis-
    missed the Contract Clause claims under Federal Rule of Civil Procedure
    12(b)(6) for failure to state a claim. Waste Management Holdings, Inc.
    v. Gilmore (Waste Management II), 
    64 F. Supp.2d 537
    , 548 (E.D. Va.
    1999). On April 11, 2000, the district court sua sponte dismissed the
    Plaintiffs' claims under the Equal Protection Clause. The propriety of
    these decisions is not before the court.
    5
    The regional landfills, which are privately operated and have sub-
    stantially greater disposal capacity than their local counterparts, have
    been sited and constructed over the past decade in order to comply
    with strict state and federal regulations. Pursuant to a "host agree-
    ment" with the county in which it is located, each regional landfill
    pays the host county a fee based upon the volume of waste (excluding
    the host's waste) deposited at that location. These agreements also
    require the regional landfills to perform certain services for their host
    communities, such as providing free waste disposal and recycling ser-
    vices and/or funding the closing of any local landfills which do not
    meet state and federal regulations. The construction of these regional
    landfills has required tens of millions of dollars in private investment,
    and the landfills face high operation and maintenance costs in addi-
    tion to the sizeable host fees.
    To meet their revenue needs and remain economically viable, each
    regional landfill relies heavily on the disposal of MSW generated out-
    side Virginia. In fact, MSW generated outside Virginia comprises
    seventy-five percent of the MSW accepted at the five regional land-
    fills operated by Waste Management6  6 and almost one-hundred percent
    of the MSW accepted at Brunswick's regional landfill.
    Under its host agreements, Waste Management is permitted to dis-
    pose of over 2,000 tons of MSW per day at all but one of its regional
    landfills. Prior to enactment of the statutory provisions at issue, Waste
    Management expected to exceed that level in 1999. Waste Manage-
    ment further expected that three of its five regional landfills would
    accept substantially more waste in 1999 than they had in 1998. The
    Charles City County Landfill, for instance, accepted approximately
    2,849 tons of MSW per day in 1999, compared to less than 2,000 tons
    per day in 1998. Likewise, Brunswick accepted approximately 2,400
    tons per day in 1998, and accepted more than 2,800 tons per day in
    1999. Before the enactment of the statutory provisions at issue,
    _________________________________________________________________
    6 Waste Management operates the following regional landfills: the
    Charles City County Landfill; the King George County Landfill and
    Recycling Facility; the Maplewood Recycling and Waste Disposal Facil-
    ity, located in Amelia County; the Middle Peninsula Landfill and Recy-
    cling Center, located in Gloucester County; and the Atlantic Waste
    Disposal Landfill in Sussex County.
    6
    Brunswick had expected to reach 5,000 tons per day by the end of the
    year 2000. By contrast, not one of the sixty-one landfills located in
    Virginia that accept only Virginia-generated MSW has ever accepted
    more than 2,000 tons per day, and only one or two of those might ever
    be expected to reach that level in the future.
    For several decades, New York City has disposed of its residential
    MSW at the Fresh Kills Landfill in Staten Island. In 1997, New York
    Governor George Pataki and New York City Mayor Rudolph Giuliani
    announced that the Fresh Kills Landfill would cease accepting waste
    in December 2001. The New York City Department of Sanitation,
    therefore, began to negotiate interim disposal contracts in order to
    phase out its dependency on the Fresh Kills Landfill. Waste Manage-
    ment has been awarded two of those contracts, and much of the MSW
    handled under those two contracts has been deposited at its regional
    landfills in Virginia. In March 1999, it bid on a third contract, which
    also contemplates the disposal of New York-generated MSW in Vir-
    ginia. More significantly, Waste Management has bid on, and is a pri-
    mary contender for, a twenty-year contract to dispose of all or part of
    12,000 tons of residential waste per day from Manhattan, Queens,
    Brooklyn, and the Bronx. New York City's Department of Sanita-
    tion's Request For Proposal expresses a preference that any waste
    removed under this contract be transported by barge and/or rail, rather
    than by truck.
    Waste Management's response contemplates sending sixty percent
    of the New York City residential MSW to Virginia landfills, particu-
    larly the Charles City County Landfill. It also contemplates that most
    of this waste will be containerized and transported by barge along the
    James River for off-loading at the James River Facility. In addition
    to the residential MSW covered by existing and pending contracts,
    Waste Management also removes significant quantities of commercial
    waste per day from New York City and surrounding communities.
    Waste Management had transported a substantial portion of this
    MSW to its regional landfills in Virginia by tractor trailer, but in 1998
    began planning to transport much of the waste by barge. In further-
    ance of this plan, it negotiated a contract with Hale, whereby Hale
    would lease to Waste Management four barges for five years at a
    fixed price, with an option to lease an additional two barges. Each
    7
    barge is capable of carrying 5,000 tons of MSW in specially con-
    structed containers that can be stacked five high.
    Hale and Waste Management expected that barging would com-
    mence in March or April 1999, that Waste Management would trans-
    port 2,500 to 3,000 tons of MSW per day from Brooklyn to the James
    River Facility, and that this waste would then be unloaded and deliv-
    ered to the Charles City County Landfill for disposal. Toward this
    end, Waste Management has agreed to purchase 400 American
    Bureau of Shipping-approved, double steel walled containers at a cost
    of $10,000 per container. It has also invested more than $5,000,000
    in improvements at the James River facility and has guaranteed pay-
    ment on two cranes for off-loading containers that together are worth
    more than $5,000,000. Only a small amount of MSW generated inside
    Virginia is transported to Virginia landfills by water.
    In June 1998, the DEQ issued a report (the 1998 DEQ Report) indi-
    cating that, during the fourth quarter of 1997 alone, Virginia had
    imported 788,000 tons of MSW. Around the same time, Waste Man-
    agement's plans to significantly increase its importation of New York
    City's MSW into Virginia began to attract greater notice. In July
    1998, Virginia State Senator Bill Bolling, chief sponsor of the statu-
    tory provisions at issue in this appeal, wrote to Virginia Attorney
    General Mark Earley about the possibility of blocking those plans:
    With the impending closure of the Fresh Kills Landfill in
    New York, I am concerned that the pressure for additional
    importation will increase even more in the next few years.
    If it is legally possible to do so, I would like to introduce
    legislation during the 1999 session of the General Assembly
    that would place restrictions on such importations.
    The legislation I am currently considering could take a num-
    ber of forms. This legislation could seek to prohibit the
    importation of out of state waste altogether. In the alterna-
    tive, I may seek to limit such importations to those landfills
    currently receiving out of state waste, and to levels reflec-
    tive of their current importations. However, I do not want to
    propose such legislation if it would be in violation of exist-
    ing federal or state law.
    8
    (J.A. 576).
    In August 1998, the Congressional Research Service issued a
    report indicating that Virginia now ranked second only to Pennsylva-
    nia as the nation's largest importer of MSW, taking in 2,800,000 tons
    in 1997. Shortly thereafter, on September 30, 1998, Senator Bolling
    announced his intention to introduce legislation aimed at out-of-state
    waste importation when the General Assembly reconvened in January
    1999. In support of his proposals, Senator Bolling highlighted the
    Commonwealth's newly acquired ranking among waste-importing
    states, Waste Management's recently announced contract to remove
    2,400 tons of residential MSW per day from New York City, "[m]ost
    if not all of [which] will be transported by barge on Virginia's water-
    ways," and the impending closure of the Fresh Kills Landfill. (J.A.
    601). "New York officials have made no secret of their intent to
    export the 14,000 tons of garbage a day that are currently disposed of
    in the Fresh Kills Landfill to other states. It appears as though the vast
    majority of this garbage may be heading to Virginia as well," Senator
    Bolling warned. 
    Id.
    Governor Gilmore also expressed concern about the increased flow
    of MSW generated outside Virginia into landfills located in Virginia.
    On September 29, 1998, he announced that he was dispatching his top
    environmental officials to meet with their counterparts from other
    states "to ensure that Virginia does not drown in a regional sea of gar-
    bage." (J.A. 597). In November 1998, Governor Gilmore imposed a
    moratorium on new landfill development and instructed Secretary
    Woodley to recommend legislation to deal with the problem. Further-
    more, in his January 13, 1999 State of the Commonwealth address,
    Governor Gilmore proposed such legislation. Specifically referring to
    Waste Management's intentions, he noted that "[j]ust two days ago,
    a major company announced plans to import four thousand more tons
    of New York City trash into Virginia per day." (J.A. 630). To combat
    this increase, he announced that he would ask Virginia's General
    Assembly to take the following steps: (1) to prohibit the use of barges
    for transporting MSW on Virginia's waterways; (2) to impose new
    permit requirements for landfills located in Virginia; (3) to cap the
    amount of waste that may be deposited in Virginia landfills; and (4)
    to increase inspections of waste being hauled by truck or other means.
    And when New York City Mayor Giuliani suggested that Virginia
    9
    might have an obligation to accept New York City's MSW, Governor
    Gilmore responded that "the home state of Washington, Jefferson, and
    Madison has no intention o[f] becoming New York's dumping
    grounds." (J.A. 635). Meanwhile, numerous Virginia lawmakers and
    other state officials announced their support for Senator Bolling and
    the Governor's efforts, frequently couching their positions in anti-out-
    of-state MSW terms.
    In March and April 1999, Virginia's General Assembly approved
    and Governor Gilmore signed into law the five statutory provisions
    at issue in this case. The present civil action followed. On June 30,
    1999, in a published decision, the district court granted the Plaintiffs'
    motion for a preliminary injunction against the Defendants' enforce-
    ment of the Cap Provision, the Stacking Provision, and the Three Riv-
    ers' Ban, pending resolution of the Plaintiffs' claims. Waste
    Management Holdings, Inc. v. Gilmore (Waste Management I), 
    64 F. Supp.2d 523
     (E.D. Va. 1999). In granting the motion, the district
    court held the Plaintiffs had made the necessary showing of irrepara-
    ble harm and the balance of harms tipped in their favor. 
    Id. at 537
    .
    The district court further held that the Plaintiffs would almost cer-
    tainly succeed on the merits. 
    Id.
     According to the district court, "the
    challenged provisions constitute ``an integrated and interconnected
    discriminatory program' whereby Virginia has ``attempted to isolate
    itself from a problem common to [the nation] by erecting a barrier
    against the movement of interstate trade.'" 
    Id.
     (quoting Environmen-
    tal Tech. Council v. Sierra Club, 
    98 F.3d 774
    , 786 (4th Cir. 1996))
    (alteration in original). "This," the district court held, "is precisely
    what the Commerce Clause forbids." Waste Management I, 64 F.
    Supp.2d at 537. The Defendants filed a notice of appeal and a motion
    in our court for a stay of the preliminary injunction pending appeal.
    We denied the motion, and the Defendants withdrew their appeal.
    On August 24, 1999, the district court granted the Plaintiffs'
    motion to strike the Defendants' asserted affirmative defense that
    because New York City had allegedly taken affirmative steps to dis-
    courage the disposal of New York City generated MSW within the
    borders of the State of New York, the Plaintiffs' constitutional chal-
    lenges were barred insofar as they arose from their interest in import-
    ing solid waste from New York City. The Defendants next filed a
    motion to dismiss for failure to state a claim upon which relief may
    10
    be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The
    Defendants sought dismissal of the entirety of the Plaintiffs' com-
    plaint on two bases: (1) that the Plaintiffs lacked standing to challenge
    the disputed laws because Virginia's counties lacked authority (i.e.,
    ultra vires) to enter into the landfill host agreements; and (2) that the
    Plaintiffs' action is barred by the doctrine of sovereign immunity as
    provided in the Eleventh Amendment. In addition, the Defendants
    contended that each of the Plaintiffs' claims should be dismissed for
    failure to state a claim on the merits. Finally, the Defendants con-
    tended that Charles City County must be dismissed as a plaintiff
    because it lacked standing to sue its creator.
    On August 30, 1999, in a published decision, the district court dis-
    missed the Contract Clause claims for failure to state a claim, but
    denied the remainder of the Defendants' Rule 12(b)(6) motion. Waste
    Management Holdings, Inc. v. Gilmore (Waste Management II), 
    64 F. Supp.2d 537
    , 548 (E.D. Va. 1999). The district court declined to
    address the issue of whether Charles City County should be dismissed
    as a plaintiff based on its (the district court's) belief that each of the
    other plaintiffs had standing to raise the claims alleged. 
    Id. at 548
    .
    Following the close of discovery, the Plaintiffs filed a motion for
    summary judgment with respect to their dormant Commerce Clause
    and Supremacy Clause claims. The Defendants filed a cross-motion
    for partial summary judgment with respect to the constitutionality of
    the Cap Provision. On February 2, 2000, again in a published deci-
    sion, the district court granted the Plaintiffs' motion for summary
    judgment "in its entirety" and denied the Defendants' motion for par-
    tial summary judgment. Waste Management Holdings III, 
    87 F. Supp.2d 536
    , 545 (E.D. Va. 2000). Notably, the district court's mem-
    orandum opinion did not separately address the constitutionality of
    the Trucking Certification or the Four or More Axle Provision under
    the dormant Commerce Clause or the Three Rivers' Ban or the Stack-
    ing Provision under the Supremacy Clause. For reasons not relevant
    to the present appeal, the district court later sua sponte dismissed the
    Plaintiffs' claims under the Equal Protection Clause. The Defendants
    noted a timely appeal.
    II.
    Under Federal Rule of Civil Procedure 56, a court should grant a
    motion for summary judgment "if the pleadings, depositions, answers
    11
    to interrogatories, and admissions on file, together with the affidavits,
    if any, show that there is no genuine issue as to any material fact and
    that the moving party is entitled to a judgment as a matter of law."
    Fed. R. Civ. P. 56(c). In considering a motion for summary judgment,
    the district court should review all of the evidence in the record.
    Reeves v. Sanderson Plumbing Prods., Inc., 
    120 S. Ct. 2097
    , 2110
    (2000). "In doing so, however, the court must draw all reasonable
    inferences in favor of the nonmoving party, and it may not make cred-
    ibility determinations or weigh the evidence." 
    Id.
    Thus, although the court should review the record as a
    whole, it must disregard all evidence favorable to the mov-
    ing party that the jury is not required to believe. That is, the
    court should give credence to the evidence favoring the non-
    movant as well as that "evidence supporting the moving
    party that is uncontradicted and unimpeached, at least to the
    extent that that evidence comes from disinterested wit-
    nesses."
    
    Id.
     (quoting 9A Charles Allan Wright & Arthur R. Miller, Federal
    Practice and Procedure § 2529, p. 299 (2d ed. 1995)). We review de
    novo a district court's decision to grant a motion for summary judg-
    ment. Myers v. Finkle, 
    950 F.2d 165
    , 167 (4th Cir. 1991).
    III.
    The Defendants first argue the doctrine of sovereign immunity, as
    reflected in the Eleventh Amendment, bars the Plaintiffs' entire
    action. We disagree.
    The Eleventh Amendment provides that "[t]he Judicial power of
    the United States shall not be construed to extend to any suit in law
    or equity, commenced or prosecuted against one of the United States
    by Citizens of another State, or by Citizens or Subjects of any Foreign
    State." U.S. Const. amend XI. The Supreme Court has recognized that
    the doctrine of sovereign immunity under the Eleventh Amendment
    extends beyond the literal text of the Eleventh Amendment to prevent
    a state from being sued by one of its own citizens without its consent.
    Alden v. Maine, 
    527 U.S. 706
    , 727-28 (1999). Accordingly, the pres-
    ent suit by the Plaintiffs' is barred by the Eleventh Amendment unless
    12
    it falls within the exception recognized in Ex Parte Young, 
    209 U.S. 123
     (1908), which permits certain suits in federal court against state
    officers.
    Under the Ex parte Young exception, a suit in federal court to
    enjoin a state officer from enforcing an unconstitutional statute is not
    a suit against the state for purposes of the Eleventh Amendment. 
    Id. at 159-60
    .
    The theory of Ex parte Young is that because an unconstitu-
    tional statute is void, it cannot cloak an official in the state's
    sovereign immunity. Although the reasoning of Ex parte
    Young has never been extended to claims for retrospective
    relief, federal courts may grant prospective injunctive relief
    against state officials to prevent ongoing violations of fed-
    eral law.
    CSX Transp. Inc. v. Board of Public Works, 
    138 F.3d 537
    , 540 (4th
    Cir. 1998). The requirement that the violation of federal law be ongo-
    ing is satisfied when a state officer's enforcement of an allegedly
    unconstitutional state law is threatened, even if the threat is not yet
    imminent. Summit Medical Assocs., P.C. v. Pryor , 
    180 F.3d 1326
    ,
    1338-1341 (11th Cir. 1999), cert. denied, 
    529 U.S. 1012
     (2000).
    Over three years ago, the Supreme Court held that the Ex parte
    Young doctrine cannot be used to allow a federal court to hear what
    is the functional equivalent of a quiet-title action against a state. Idaho
    v. Coeur d'Alene Tribe of Idaho, 
    521 U.S. 261
     (1997). In the 1997
    decision so holding, two of the Justices (Chief Justice Rehnquist and
    Justice Kennedy) called for a fundamental reconceptualization of Ex
    parte Young. If given the chance, they would limit the Ex parte Young
    "exception" to cases in which no state forum was available to decide
    whether federal law entitled the plaintiff to injunctive relief. Coeur
    d'Alene, 
    521 U.S. at 270-280
     (Kennedy, J., joined by Rehnquist,
    C.J.). But this limitation of Ex parte Young was decisively rejected by
    the other seven Justices. See 
    521 U.S. at 287-295
     (O'Connor, J.,
    joined by Scalia and Thomas, JJ., concurring); 
    521 U.S. at 297
     (Sou-
    ter, J., joined by Stevens, Ginsburg, and Breyer, JJ., dissenting).
    The Defendants acknowledge that Justice Kennedy and Justice
    Rehnquist's limiting view of the Ex parte Young doctrine in Coeur
    13
    d'Alene "has not yet been adopted by the full Court," (the Defendants'
    Br. at 20). The Defendants nonetheless argue that we should apply it
    in the case before us to conclude that Ex parte Young does not prevent
    the Eleventh Amendment from barring the Plaintiffs' suit.
    The fallacy of the Defendants' argument is obvious. Application of
    the Ex parte Young doctrine has not been limited to cases where no
    state forum is available to decide whether federal law entitles a plain-
    tiff to injunctive relief. The case before us is precisely the type of case
    to which the Ex parte Young doctrine applies. See, e.g., CSX Transp.
    Inc. v. Board of Public Works, 
    138 F.3d 537
    , 541 (4th Cir. 1998) ("An
    injunction against the future collection of the illegal taxes, even those
    that already have been assessed, is prospective, and therefore avail-
    able under the Ex parte Young doctrine."). Indeed, if a precedent of
    the Supreme Court has direct application in a case, yet appears to rest
    on reasons expressly rejected by a few or even a majority of the Jus-
    tices in some other line of decisions, "the Court of Appeals should
    follow the case which directly controls, leaving to[the Supreme]
    Court the prerogative of overruling its own decisions." Rodriguez de
    Quijas v. Shearson/American Express, Inc., 
    490 U.S. 477
    , 484 (1989).
    Next, the Defendants contend that even if the Eleventh Amendment
    does not bar the Plaintiffs' action altogether, Governor Gilmore
    should be dismissed as a party because he does not have direct
    enforcement responsibility with respect to the statutory provisions at
    issue. Below, both the Plaintiffs and the district court recognized that
    Governor Gilmore lacks direct enforcement authority with respect to
    the statutory provisions at issue. However, the Plaintiffs contended
    and the district court agreed that Governor Gilmore was a proper
    defendant because he actively and publicly defended the statutory
    provisions at issue. Waste Management II, 64 F. Supp.2d at 543 n.6.
    On appeal, the Plaintiffs argue in favor of keeping Governor Gilmore
    in the suit on the same basis.
    We agree with the Defendants that Governor Gilmore should be
    dismissed as a party. Ex parte Young requires a "special relation"
    between the state officer sued and the challenged statute to avoid the
    Eleventh Amendment's bar. Ex parte Young, 
    209 U.S. at 157
    . "Gen-
    eral authority to enforce the laws of the state is not sufficient to make
    government officials the proper parties to litigation challenging the
    14
    law." Children's Healthcare is a Legal Duty, Inc. v. Deters, 
    92 F.3d 1412
    , 1416 (6th Cir. 1996) (internal quotation marks omitted). Thus,
    "[t]he mere fact that a governor is under a general duty to enforce
    state laws does not make him a proper defendant in every action
    attacking the constitutionality of a state statute." Shell Oil Co. v. Noel,
    
    608 F.2d 208
    , 211 (1st Cir. 1979).
    Here, although Governor Gilmore is under a general duty to
    enforce the laws of Virginia by virtue of his position as the top offi-
    cial of the state's executive branch, he lacks a specific duty to enforce
    the challenged statutes. Thus, we vacate the judgment against him and
    remand with instructions that the district court dismiss him as a defen-
    dant in this action. The fact that he has publicly endorsed and
    defended the challenged statutes does not alter our analysis. The pur-
    pose of allowing suit against state officials to enjoin their enforcement
    of an unconstitutional statute is not aided by enjoining the actions of
    a state official not directly involved in enforcing the subject statute.77
    IV.
    The Defendants next dispute the district court's conclusion that the
    Plaintiffs possess standing to challenge the statutory provisions at
    issue.
    A.
    According to the Defendants, Virginia counties have no authority
    to operate or contract for the operation of a landfill for-profit that
    accepts MSW generated outside Virginia. Accordingly, they contend,
    the host agreements and the counties' actions with regard to accep-
    tance of MSW generated outside Virginia are ultra vires. Since the
    host agreements form the basis for this litigation, the Defendants rea-
    son the Plaintiffs lack standing.
    _________________________________________________________________
    7 Given our holding that Governor Gilmore should be dismissed from
    this action, from this point forward, when our opinion refers to "the
    Defendants," we are referring to the two remaining defen-
    dants/appellants, John Paul Woodley and Dennis Treacy. We note that Gover-
    nor Gilmore joined them in all arguments they have presented on appeal.
    15
    As the Defendants correctly assert, Virginia law follows "Dillon's
    Rule," which holds that a municipal corporation possesses only those
    powers that are: (1) expressly granted by Virginia, (2) necessarily or
    fairly implied in or incidental to the powers expressly granted, or (3)
    "essential to the declared objects and purposes of the corporation, not
    simply convenient but indispensable." Richmond v. Board of Supervi-
    sors of Henrico County, 
    101 S.E.2d 641
    , 645 (Va. 1958) (internal
    quotation marks omitted). "Any fair, reasonable doubt concerning the
    existence of the power is resolved by the courts against the corpora-
    tion and the power is denied." 
    Id.
    Here, Virginia Code § 15.2-932 grants "[a]ny locality" authority
    "to contract with any person, whether profit or nonprofit, for garbage
    and refuse pickup and disposal service in its locality and to enter into
    contracts relating to waste disposal facilities which recover energy or
    materials from garbage, trash and refuse." 
    Va. Code Ann. § 15.2-932
    (Michie 1997) (emphasis added). The Defendants argue that applying
    Dillon's Rule to this statute results in the interpretation that Virginia
    counties lack the power to contract for waste disposal that is not their
    own waste.
    We hold the district court properly rejected the Defendants' ultra
    vires argument. A plain reading of the language of Virginia Code
    § 15.2-932, even in light of Dillon's Rule, grants every Virginia
    county the authority to enter into the host agreements at issue. In this
    regard, we rely upon the following language: "[a]ny locality" has the
    authority "to contract with any person, whether profit or nonprofit, for
    garbage and refuse pickup and disposal services in its locality . . . ."
    Id. (emphasis added). Critically, this language does not limit the term
    disposal to disposal of intra locality garbage or refuse pickup as the
    Defendants suggest.
    B.
    According to the Defendants, Waste Management and Brunswick
    lack standing to challenge the Cap Provision, because they did not
    first apply for an increase in their tonnage allotment under the vari-
    ance provision. The Defendants further argue that "it has even been
    conceded that, if the regional landfills had applied for increased ton-
    16
    nage allotments, DEQ staff probably would have granted those
    requests." (the Defendants' Br. at 29).
    In support of this last argument, the Defendants cite the deposition
    testimony of Lee Wilson. Lee Wilson is employed as a district man-
    ager by USA Waste of Virginia, Inc., which is a subsidiary of Waste
    Management. In his district manager position, Lee Wilson is responsi-
    ble for the operations of three landfills located in Virginia and a num-
    ber of transfer stations. Among other things, his duties include
    developing and submitting bids to perform waste handling services
    for customers, providing services to Waste Management's customers,
    negotiating contracts with vendors, developing and implementing
    business plans, and dealing with federal, state, and local regulatory
    agencies and officials.
    In deposition, Lee Wilson was asked to give his opinion "after
    working here in the State of Virginia and knowing the regulators and
    knowing your landfills, do you think they would grant you an exten-
    sion?" Lee Wilson answered "[f]rom a regulatory standpoint, yes,
    from a political standpoint, no." (J.A. 1371).
    The Defendants' argument that Waste Management and Brunswick
    lack standing to press their constitutional claims because they have
    not already applied for an increase in their tonnage allotment is with-
    out merit. If the cap is allowed to take effect, the maximum daily ton-
    nage that Waste Management and Brunswick may receive at their
    landfills will be dramatically reduced. The Cap Provision would pre-
    vent Waste Management and Brunswick from bidding on contracts
    while variance applications are pending. The prospect of such harm
    confers standing. See Bob's Home Service, Inc. v. Warren County,
    
    755 F.2d 625
    , 627 (8th Cir. 1985) (cap prohibiting expansion of a
    waste disposal facility until granted a permit by the state presented
    justiciable controversy because cap denied plaintiffs the right to
    expand their operations in the future and implied an immediate injury,
    i.e., a reduction in the value of plaintiffs' land and business). As for
    the alleged concession by Waste Management that it would receive
    a waiver in its tonnage allotment, a fair reading of Lee Wilson's testi-
    mony reveals that he did not make such a concession. At most, Lee
    Wilson identified competing forces with opposing views on the mat-
    ter. In short, the Defendants' contention that Waste Management and
    17
    Brunswick lack standing to press their constitutional challenge to the
    Cap Provision is without merit.
    C.
    Lastly with respect to standing, the Defendants argue the Plaintiffs
    lack standing to challenge the Stacking Provision, the Three Rivers'
    Ban, and the Four or More Axle Provision because respective saving
    clauses provide that these provisions will be implemented only to the
    extent allowed by federal law. Virginia Code Ann. § 10.1-1454.1
    (barge regulations shall include stacking limits only "to the extent
    allowable under federal law"); § 10.1-1454.2 (Three Rivers' Ban will
    be enforced only to the "extent consistent with limitations imposed by
    the Constitution of the United States"); § 10.1-1454.3 (regulations
    under Four or More Axle Provision to be enforced only "to the extent
    allowable under federal law"). We disagree.
    The saving clauses upon which the Defendants rely do not prevent
    the Plaintiffs from challenging the Stacking Provision, the Three Riv-
    ers' Ban, or the Four or More Axle Provision, because the language
    of those clauses is repugnant to the straightforward, limiting language
    of the respective statutory provisions. Looney v. Commonwealth, 
    133 S.E. 753
    , 755 (Va. 1926) ("It is well settled that saving clauses which
    are inconsistent with the body of an act are rejected and disregarded
    as ineffective and void."); see also Sutherland on Statutory Construc-
    tion, § 47:12 (same).
    V.
    We now turn to address the merits of the Plaintiffs' dormant Com-
    merce Clause challenge to the statutory provisions at issue. The Com-
    merce Clause provides that "[t]he Congress shall have Power . . . [t]o
    regulate Commerce . . . among the several States . .. ." Art. I, § 8,
    cl.3. Supreme Court precedent has long recognized that although
    phrased as a grant of regulatory power to Congress, the Commerce
    Clause inherently "denies the States the power unjustifiably to dis-
    criminate against or burden the interstate flow of articles of com-
    merce." Oregon Waste Sys. v. Department of Envtl. Quality, 
    511 U.S. 93
    , 98 (1994).
    18
    We apply the following two-tier approach in determining the con-
    stitutionality of a statutory provision challenged under the dormant
    Commerce Clause:
    The first tier, a virtually per se rule of invalidity, applies
    where a state law discriminates facially, in its practical
    effect, or in its purpose. In order for a law to survive such
    scrutiny, the state must prove that the discriminatory law is
    demonstrably justified by a valid factor unrelated to eco-
    nomic protectionism, and that there are no nondiscrimina-
    tory alternatives adequate to preserve the local interests at
    stake. . . .
    The second tier applies if a statute regulates evenhandedly
    and only indirectly affects interstate commerce. In that case,
    the law is valid unless the burdens on commerce are clearly
    excessive in relation to the putative local benefits.
    Envtl. Tech. Council v. Sierra Club, 
    98 F.3d 774
    , 785 (4th Cir. 1996)
    (internal quotation marks and citations omitted); see also Eastern
    Kentucky Resources v. Fiscal Court of Magoffin County, 
    127 F.3d 532
    , 540 (6th Cir. 1997) ("A statute can discriminate against out-of-
    state interests in three different ways: (a) facially, (b) purposefully, or
    (c) in practical effect.").
    A.
    Here, the parties are in agreement that the statutory provisions at
    issue are not facially discriminatory against MSW generated outside
    Virginia. Thus, we must determine whether the statutory provisions
    at issue would discriminate against MSW generated outside Virginia
    in their practical effect or were enacted for the purpose of discriminat-
    ing against MSW generated outside Virginia. Quite obviously, both
    inquiries present questions of fact. If the answer to either question is
    yes, we apply strict scrutiny analysis.
    B.
    1.
    The Plaintiffs offer the following evidence in support of their con-
    tention that the Cap Provision would discriminate against MSW gen-
    19
    erated outside Virginia in its practical effect. First, the Plaintiffs rely
    upon a November 1998 report issued by DEQ, reporting that, with
    respect to the MSW received by the seven large regional landfills in
    Virginia, approximately ninety-seven percent is MSW generated out-
    side Virginia, while only two of the sixty-three small local landfills
    in Virginia accepted the remaining approximately three percent. Sec-
    ond, the Plaintiffs rely upon a sworn statement by Lee Wilson that he
    has personal knowledge that all seven of the large regional landfills
    in Virginia, except for the Gloucester County landfill, which operates
    under a local cap of 2,000 tons per day, have disposed of more than
    2,000 tons per day of MSW in the past or can reasonably be expected
    to do so in the future. By contrast, he further stated, none of the
    approximately sixty-three landfills that receive principally Virginia-
    generated MSW receive any amount of MSW close to 2,000 tons per
    day of MSW. The Plaintiffs argue that from this evidence, a reason-
    able juror could only find that if the Cap Provision is allowed to take
    effect, it will impose a real and substantial burden on MSW generated
    outside Virginia while barely, if at all, impacting MSW generated in
    Virginia. Specifically, the burden is less access to permanent disposal.
    In response, the Defendants argue that the Plaintiffs' evidence is
    legally insufficient because Lee Wilson did not identify a basis for his
    testimony and provided no reason to believe that he had personal
    knowledge of this information. Furthermore, the Defendants argue
    that Lee Wilson's testimony is contradicted by their evidence that the
    Southeastern Public Authority Landfill (SPA Landfill), which accepts
    exclusively Virginia MSW, operates near the cap already and expects
    to reach that level soon. Moreover, the Defendants argue, the effect
    of the Cap Provision on the SPA Landfill is demonstrated by the fact
    that prior to the injunction against enforcement of the Cap Provision,
    the SPA Landfill applied for an increased tonnage allotment under the
    Cap Provision.
    The Plaintiffs argue in response that Lee Wilson had ample basis
    for his testimony based upon his knowledge and experience in the
    MSW industry and based upon DEQ's November 1998 report. With
    regard to the SPA Landfill, the Plaintiffs note that on December 30,
    1998, DEQ reported to Senator Bolling that the SPA Landfill receives
    1,540 tons of MSW per day and that when the SPA Landfill applied
    for an increase in tonnage allotment, it made clear that it expected to
    20
    exceed the cap only on the "rare" occasions when its waste-to-energy
    plant is shutdown for repairs. (J.A. 1002).
    After reviewing the evidence and arguments offered by both sides
    on this issue, we conclude that a genuine issue of material fact exists
    regarding whether the Cap Provision discriminates in its practical
    effect against MSW generated outside Virginia. Thus, the Plaintiffs
    are not entitled to summary judgment in their favor with respect to
    this issue.
    2.
    With respect to the Stacking Provision and the Three Rivers' Ban,
    the Defendants do not dispute that a far greater amount of MSW gen-
    erated outside Virginia, as compared to MSW generated inside Vir-
    ginia, is shipped in specialized containers on barges on Virginia's
    waterways for ultimate disposal in landfills located in Virginia. Like-
    wise, the Defendants do not dispute that Hale and Waste Management
    had serious proposals, prior to the enactment of the statutory provi-
    sions at issue, whereby Hale would lease four barges for five years
    to Waste Management, which Waste Management in turn would use
    in transporting MSW generated in New York to Virginia on Virginia
    waterways for disposal in landfills located in Virginia. Finally, the
    Defendants do not dispute that enforcement of the Stacking Provision
    would more than double the cost of shipping MSW by barge on Vir-
    ginia waterways.
    Nevertheless, the Defendants argue that the Plaintiffs' evidence is
    insufficient to establish that the Stacking Provision and the Three Riv-
    ers' Ban discriminates in practical effect against MSW generated out-
    side Virginia because the Plaintiffs failed to present any evidence
    establishing that there is not, never has been, and never would be any
    interest in barging MSW generated inside Virginia. The Defendants
    offer no citation of authority for this argument and we understand
    why. The obvious focus of the practical effect inquiry is upon the dis-
    cernable practical effect that a challenged statutory provision has or
    would have upon interstate commerce as opposed to intrastate com-
    merce. Logic dictates that for this purpose, the Plaintiffs are only
    required to show how the Stacking Provision and the Three Rivers'
    Ban, if enforced, would negatively impact interstate commerce to a
    21
    greater degree than intrastate commerce. This they have done, and the
    Defendants have not created a genuine issue of material fact on the
    issue.
    3.
    According to the Plaintiffs, the Trucking Certification Provision
    and the Four or More Axle Provision, if enforced, would have a dis-
    criminatory impact upon MSW generated outside Virginia because
    virtually all MSW generated outside Virginia is delivered to landfills
    in vehicles with four or more axles, while the majority of MSW gen-
    erated inside Virginia is delivered to landfills in vehicles with less
    than four axles. We have reviewed both the evidence offered by the
    Plaintiffs in support of this assertion and the evidence offered by the
    Defendants in contest in the light most favorable to the Defendants.
    It suffices to say that the record reflects a genuine issue of material
    fact regarding whether the Trucking Certification Provision and the
    Four or More Axle Provision, if enforced, would discriminate against
    MSW generated outside Virginia in practical effect.
    C.
    We now ask whether, viewing the evidence in the record in the
    light most favorable to the Defendants, and drawing all reasonable
    inferences in their favor, reasonable jurors could find that Virginia's
    General Assembly enacted the statutory provisions at issue without a
    discriminatory purpose.
    Several factors have been recognized as probative of
    whether a decisionmaking body was motivated by a discrim-
    inatory intent, including: (1) evidence of a "consistent pat-
    tern" of actions by the decisionmaking body disparately
    impacting members of a particular class of persons; (2) his-
    torical background of the decision, which may take into
    account any history of discrimination by the decisionmaking
    body or the jurisdiction it represents; (3) the specific
    sequence of events leading up to the particular decision
    being challenged, including any significant departures from
    normal procedures; and (4) contemporary statements by
    22
    decisionmakers on the record or in minutes of their meet-
    ings.
    Sylvia Dev. Corp. v. Calvert County, 
    48 F.3d 810
    , 819 (4th Cir.
    1995).
    We conclude the record in this case establishes that no reasonable
    juror could find that in enacting the statutory provisions at issue Vir-
    ginia's General Assembly acted without a discriminatory purpose.
    Furthermore, the record in this case establishes that no reasonable
    juror could find that in signing the statutory provisions at issue into
    law Governor Gilmore acted without a discriminatory purpose.
    Our conclusions rest upon the historical background of and
    sequence of events leading up to the General Assembly's enactment
    of and Governor Gilmore's signing into law the statutory provisions
    at issue. In 1998, the General Assembly and Governor Gilmore
    learned that, as of 1997, Virginia had become the nation's second
    largest importer of MSW.8  8 Next came the widely reported news that
    New York City was planning to close the Fresh Kills landfill and
    begin exporting more of its MSW. Then came reports that Waste
    Management was making a $20,000,000 investment in the James
    River facility. At this point, the wheels of a political movement to
    curb the flow of MSW generated outside Virginia from entering the
    borders of Virginia began to turn. The movement was co-spearheaded
    by Senator Bolling and Governor Gilmore.
    On September 30, 1998, Senator Bolling issued a press release and
    formal statement pertaining to his intention to introduce "The Solid
    Waste Management Act of 1999" for consideration by Virginia's
    General Assembly during its 1999 legislative session. Senator Bol-
    ling's statement began by noting Virginia's then-current status as the
    second largest importer of MSW in the nation. He further noted that
    "[m]ost of the out of state waste currently coming to Virginia origi-
    nates in New York, although significant amounts also come from the
    District of Columbia and the state of Maryland." (J.A. 601). Senator
    Bolling then listed a number of factors that he opined would increase
    _________________________________________________________________
    8 Both the Congressional Research Service and the DEQ issued reports
    in 1998 announcing Virginia's number two MSW-importer ranking.
    23
    pressure to import dramatically larger amounts of MSW generated
    outside Virginia. In this regard, Senator Bolling cited an announce-
    ment by Waste Management that it had entered into a new contract
    with New York City to import 2,400 tons of MSW a day into Vir-
    ginia; New York's intent to export 14,000 tons of MSW a day upon
    the closing of the Fresh Kills landfill, the vast majority of which
    appeared to be heading to Virginia; and the plans of the then-nation's
    largest importer of MSW, Pennsylvania, to enact aggressive legisla-
    tive measures to reduce the amount of MSW generated outside Penn-
    sylvania from being imported into Pennsylvania.
    Senator Bolling's statement then stated: "Some may ask why Vir-
    ginians should be concerned about the large volume of out of state
    waste we are currently receiving? While there are a number of legiti-
    mate concerns, the following are some of the most important." (J.A.
    601). Senator Bolling then proceeded to list the following four rea-
    sons: (1) continuing to allow Virginia's limited landfill space to be
    consumed by MSW generated outside Virginia may harm the ability
    of Virginia to properly dispose of its own waste in years to come; (2)
    because MSW generated outside Virginia is handled by a number of
    vendors before being transported to Virginia, Virginia's ability to
    have a satisfactory level of confidence about the nature of the waste
    it receives is limited; (3) the large amount of MSW generated outside
    Virginia that Virginia is currently receiving "has the potential of
    harming Virginia's legacy and image"; and (4) the potential for nega-
    tive environmental impact on Virginia's land by the "massive landfill
    operations." (J.A. 602). Senator Bolling then stated that it was his
    belief that:
    . . . Virginia must act now to adopt a comprehensive solid
    waste management policy for the 21st century. Such a pol-
    icy must assure that Virginia's solid waste disposal needs
    are addressed first, that the potential adverse environmental
    impacts associated with massive landfill operations are con-
    trolled, and that the important legacy of Virginia is pre-
    served.
    (J.A. 602). "Toward this end," Senator Bolling then stated, "I today
    announce my intention to introduce The Solid Waste Management
    Act of 1999 for consideration during the 1999 legislative session." 
    Id.
    24
    In the press release accompanying his formal statement, Senator
    Bolling echoed the protectionist motivation behind his introduction of
    The Solid Waste Management Act of 1999:
    "There is tremendous excess capacity in Virginia's landfills
    today. If we don't act now to cap the total amount of waste
    that can be disposed of in Virginia's landfills, the amount of
    waste being brought to Virginia from other states will
    increase significantly in the next few years. Such caps are
    the only effective way of limiting the amount of waste that
    is being imported to Virginia, and preserving our current
    landfill capacity for future generations of Virginians."
    (J.A. 607) (emphasis added).
    Three months later, on January 15, 1999, Governor Gilmore issued
    a press release containing the text of a letter he sent to New York City
    Mayor Rudolph Giuliani the same day. The letter reads:
    Dear Mayor Giuliani:
    I am greatly concerned by your recent comments regarding
    the transport of New York City's municipal waste to Vir-
    ginia and the policy you announced in December to increase
    exports of waste to neighboring states. Like millions of peo-
    ple living from Maine to Florida, I am offended by your
    suggestion that New York's substantial cultural achieve-
    ments, such as they are, obligates Virginia and other states
    to accept your garbage. Let me assure you that the home
    state of Washington, Jefferson, and Madison has no inten-
    tion of becoming New York's dumping grounds.
    Over the past two weeks, one company in Virginia has tri-
    pled its shipments of New York's municipal waste to Vir-
    ginia landfills to approximately 3,000 tons a day. The
    company also reports that it expects shipments to increase
    to roughly 2.2 million tons per year by 2002. Already, Vir-
    ginia ranks as the second largest importer of municipal solid
    waste, behind only Pennsylvania. This is highly unaccept-
    able.
    25
    I understand the problem New York City faces. It is one that
    most cities in the nation share. As an urban area, you do not
    have landfill facilities within your locality. However, I can-
    not agree with your conclusion that the only solution is to
    send your waste to Virginia. The Northeast is large and has
    many rural areas. I would hope that you could find a solu-
    tion to your problem within your region. Unlike most rivers,
    your garbage can flow north as well as south.
    I agree with you that New York is a great city with some of
    the finest cultural amenities in the world. But Virginia is a
    great state, deep with history, culture and tradition. I have
    a duty to ensure the protection of the natural and historic
    resources of Virginia and a solution to this growing trash
    problem is essential to my fulfilling that duty.
    Very truly yours,
    James S. Gilmore, III
    Governor of Virginia
    (J.A. 633-34) (emphasis added).
    Just a week after the Governor issued his press release, the Gover-
    nor announced in another press release that he was proposing, and
    that Senator Bolling would be the chief patron of, legislation intended
    to prevent Virginia from becoming the nation's dumping ground. Spe-
    cifically, the Governor stated:
    The home state of Washington, Jefferson, and Madison has
    no intention of becoming the nation's dumping grounds. . . .
    That is why I've asked Senator Bolling to sponsor these bills
    that will increase state regulations on landfills, cap daily
    landfill deposits, and ban trash barges on Virginia's water-
    ways.
    (J.A. 635) (emphasis added).
    On January 26, 1999, Senator Bolling promptly followed with a
    memorandum to the members of the Solid Waste Subcommittee of
    26
    the Senate Committee on Agriculture, Conservation and Natural
    Resources, stating:
    One of the most important issues that will be discussed dur-
    ing this year's session of the General Assembly is the debate
    surrounding Virginia's solid waste management practices.
    While many in the General Assembly have been concerned
    about this issue for some time, the issue has taken on "front
    page prominence" in the last few weeks, primarily due to the
    emphasis that has been placed on out of state waste imports.
    I am writing to provide you with some background informa-
    tion on this issue.
    Earlier this year, the Department of Environmental Quality
    published their first written report quantifying the amount of
    waste that was being placed in Virginia's landfills. Surpris-
    ingly, this report indicated that Virginia was receiving 3.2
    million tons of garbage from other states, primarily New
    York. New York accounted for approximately 60% of our
    total waste imports, and imports accounted for approxi-
    mately 30% of our total landfill deposits. Based on these
    findings, Virginia was identified as the second largest
    importer of waste in the nation.
    Unfortunately, the amount of garbage being imported to
    Virginia has grown dramatically in the past year. That is pri-
    marily due to the impending closure of the Fresh Kills land-
    fill in New York City, and the fact that Waste Management,
    Inc., who owns most of the large regional landfills in Vir-
    ginia, has received the contract to handle the relocation of
    the Fresh Kills waste stream.
    * * *
    [T]hese large and increasing waste deposits are prematurely
    exhausting Virginia's limited landfill capacity. In fact, the
    Department of Environmental Quality has estimated that our
    current landfill capacity could be exhausted 20 years sooner
    than would otherwise be the case. This means that we may
    have to site an entire generation of new landfills in Virginia
    27
    20 years sooner than we would otherwise have to do so sim-
    ply because our current landfill space is being filled up by
    waste from other states.
    * * *
    [T]hese waste deposits could create long term environmen-
    tal problems for Virginia. . . . While we have no choice but
    to assume this burden for our own waste, we should feel no
    obligation to assume that burden for the waste of other
    states.
    Finally, I would suggest that becoming the nation's "King
    of Trash" is not consistent with the image we have tried to
    promote for Virginia. . . . How can we possibly promote
    Virginia as the Silicon Dominion of the 21st century while
    we stand idly by and allow Virginia to become the largest
    importer of garbage in the nation.
    (J.A. 637-38).
    A few days after Senator Bolling issued the above quoted memo-
    randum, in response to a request by another senator, he issued another
    memorandum to the Senate's Solid Waste Subcommittee containing
    additional information regarding the importation of MSW generated
    outside Virginia into Virginia's regional landfills. In this memoran-
    dum, Senator Bolling clearly outlined the potential for discriminatory
    impact upon MSW generated outside Virginia: "The vast majority of
    the municipal solid waste being received at the seven regional land-
    fills in Virginia comes from other states. While the percentage of out
    of state waste statewide is approximately 30%, the percentage of out
    of state waste at the seven regional landfills is 71%." (J.A. 667). On
    the same day, Senator Bolling personally addressed the Solid Waste
    Subcommittee and verbally reassured committee members that most
    local landfills in Virginia accept less than one hundred tons of MSW
    a day, and thus would not be affected by a 2,000 ton per day cap. The
    record also contains transcripts of speeches on the floor of the Gen-
    eral Assembly by two delegates to the General Assembly and the gen-
    eral reaction of fellow delegates. The transcripts establish the General
    Assembly's general antipathy toward MSW generated outside Vir-
    28
    ginia. First, one delegate to the General Assembly queried: "``Do we
    want to be known as the capital of garbage?'" (J.A. 1007). His query
    was met with a chorus of nos. He then queried: "``Maybe we need a
    new bumper sticker--instead of Virginia is for lovers, what about
    Virginia is for garbage? Or how about a special license plate with a
    dumpster on it.'" 
    Id.
     Again, the record shows a chorus of nos. Finally,
    Delegate Williams lamented before the General Assembly: "``What a
    message we are sending, buy a home, live in the great Common-
    wealth, the number one importer of garbage.'" 
    Id.
     Another delegate
    to the General Assembly explained:
    "This [cap provision] is the second bill in the Governor's
    package that deals with the waste problem that we are hav-
    ing and I consider it the most important bill in the gover-
    nor's package . . . . [T]his bill is the one that really gets at
    the doubling of waste the last two or three years at our land-
    fills and the potential to double that waste again in the next
    two or three years."
    
    Id.
     (alteration in original).
    The evidence just outlined shows unmistakably the legislative and
    gubanatorial opposition to further increases in the volume of MSW
    generated outside Virginia crossing the borders of Virginia for ulti-
    mate placement in Virginia's seven regional landfills.9
    9 No reasonable
    _________________________________________________________________
    9 Although the Defendants do not directly dispute the accuracy or
    authenticity of the press releases and transcripts just discussed and in
    some cases quoted, the Defendants argue the quotation's from the press
    releases and the debate transcripts are inadmissible because they "were
    not authenticated and were replete with double-hearsay." (the Defen-
    dants' Br. at 44). Because the Defendants failed to make these objections
    below, and a gross miscarriage of justice has not resulted from the dis-
    trict court's consideration of the challenged evidence in support of the
    Plaintiffs' motion for summary judgment, the Defendants waived their
    right on appeal to challenge the admissibility of this evidence. See Jones
    v. Owens-Corning Fiberglass Corp., 
    69 F.3d 712
    , 718 (4th Cir. 1995);
    Liberles v. Cook County, 
    709 F.2d 1122
    , 1126 (7th Cir. 1983); Auto
    Drive-Away Co. of Hialeah, Inc. v. Interstate Commerce Commission,
    
    360 F.2d 446
    , 448-49 (5th Cir. 1966); 10A A. Charles Alan Wright et al.,
    Federal Practice & Procedure § 2716, 282-286 (3d ed. 1998). Accord-
    ingly, the Defendants on appeal cannot rely on these arguments of inad-
    missibility as a basis for reversal of the district court's grant of summary
    judgment in favor of the Plaintiffs.
    29
    juror could find the statutory provisions at issue had a purpose other
    than to reduce the flow of MSW generated outside Virginia into Vir-
    ginia for disposal. Indeed, the very purpose the Defendants proffer in
    this litigation for the enactment of the statutory provisions at issue--
    to alleviate or at least reduce health and safety threats to Virginia's
    citizens and environment created by the importation of MSW from
    states with less strict limitations upon the content of MSW than
    Virginia--fully supports our conclusion. This is because an inherent
    component of the Defendants' proffered purpose of Virginia's enact-
    ment of the statutory provisions at issue is discrimination against
    MSW generated outside Virginia. Whether Virginia has a constitu-
    tionally valid reason for engaging in such discrimination is the focus
    of the strict scrutiny inquiry.
    The Defendants contend the record shows that a genuine issue of
    material fact exists with respect to whether the statutes at issue were
    enacted with discriminatory intent or for neutral reasons. In support,
    the Defendants direct our attention to a post-enactment statement in
    a sworn declaration by Senator Bolling to the effect that he sponsored
    the statutory provisions at issue because of his concern over the rapid
    growth in the volume of MSW being deposited in Virginia landfills
    "regardless of the source" of that MSW. (J.A. 1228).
    This statement is not sufficient to create a genuine issue of material
    fact on the issue of intent, because other statements by Senator Bol-
    ling in the same sworn declaration flatly contradict his "regardless of
    the source" phrase. Specifically, Senator Bolling admitted that MSW
    generated outside Virginia presented "increased concerns" on account
    of "the rapidly increasing volume and our perception that we in the
    Commonwealth have less control over the content of that waste and
    our ability to enforce Virginia regulations as to that waste stream."
    (J.A. 1229). In enacting the statutory provisions at issue, Senator Bol-
    ling further explained: "We were aware that the solid waste regula-
    tions of other states were not as stringent as those of the
    Commonwealth." Id. These latter quoted statements of Senator Bol-
    ling unequivocally show that the volume of MSW generated outside
    Virginia flowing into Virginia triggered more concern on the part of
    Virginia's General Assembly than the volume of MSW generated in
    Virginia being deposited in landfills located in Virginia. It is true that
    other portions of Senator Bolling's sworn declaration stress that Vir-
    30
    ginia intended the challenged statutes to regulate evenhandedly with-
    out regard to the source of the waste; however, the Defendants cannot
    create a genuine issue of material fact by presenting conflicting sworn
    statements as they have done with respect to the issue of discrimina-
    tory intent. Barwick v. Celotex Corp., 
    736 F.2d 946
    , 960 (4th Cir.
    1984) ("A genuine issue of material fact is not created where the only
    issue of fact is to determine which of the two conflicting versions of
    the plaintiff's testimony is correct.").
    D.
    We must next consider whether, viewing the evidence in the light
    most favorable to the Defendants, the Defendants have proffered suf-
    ficient evidence for reasonable jurors to find, with respect to each
    statutory provision at issue, that the provision is demonstrably justi-
    fied by a valid factor unrelated to economic protectionism, and that
    no nondiscriminatory alternatives exist that are adequate to preserve
    the local interests at stake. Environmental Technology Council, 
    98 F.3d at 785
    .
    1.
    The Defendants argue that all of the statutory provisions at issue
    are demonstrably justified because "solid waste streams generated in
    trash exporting states raise health and safety concerns not presented
    by Virginia waste." (the Defendants' Br. at 56). In this regard, the
    Defendants stress that the problem is particularly acute with respect
    to exporting states that do not have laws as strict as Virginia's laws
    governing regulated medical waste and certain types of hazardous
    waste. By analogy, the Defendants rely upon Maine v. Taylor, 
    477 U.S. 131
     (1986). In that case, Maine demonstrated that all out-of-state
    baitfish were subject to parasites foreign to in-state baitfish. This dif-
    ference posed a threat to Maine's natural resources, and absent a less
    discriminatory means of protecting the environment--and none was
    available--the importation of baitfish from any state could properly
    be banned. 
    Id. at 140
    .
    The Plaintiffs do not quarrel with the Defendants' position that the
    health and safety of Virginia citizens is a legitimate local interest.
    Neither do we. Nevertheless, in order to survive the Plaintiffs' motion
    31
    for summary judgment with respect to the first prong of strict scrutiny
    analysis, the Defendants must carry their burden of showing that
    MSW generated outside Virginia is more dangerous than MSW gen-
    erated in Virginia. Chemical Waste Management, Inc. v. Hunt, 
    504 U.S. 334
    , 343-44 (1992) (recognizing that while the health and safety
    of the citizens of Alabama may be a legitimate local interest, Alabama
    offered no evidence that hazardous waste generated outside Alabama
    is more dangerous than hazardous waste generated in Alabama; there-
    fore, Alabama failed to carry its burden of showing that the Alabama
    statute imposing an additional fee on all hazardous waste generated
    outside Alabama and disposed of at Alabama facilities was demon-
    strably justified by a valid factor unrelated to economic protection-
    ism).
    In this regard, the Defendants have offered evidence demonstrat-
    ing, when viewed in the light most favorable to them: (1) that certain
    materials in MSW can be hazardous to human health; (2) that each
    state has its own definition of MSW; (3) that "[w]hile one state may
    find it appropriate to regulate strictly a certain type of solid waste,
    another state may not be as aware of or concerned about the risks
    posed by that type of item into the MSW stream," (J.A. 356); (4) that
    Virginia law completely prohibits potentially infectious items such as
    blood and urine from being disposed of as MSW, while Maryland and
    North Carolina allow disposal of blood and urine as MSW under lim-
    ited circumstances; (5) that Virginia law prohibits urine from being
    disposed of as MSW while New York allows its disposal as MSW
    without limitation; (6) that Maryland and New York allow hazardous
    waste generated at less than 100 kilograms per month to be disposed
    of as MSW while Virginia does not; and (7) that unlike Virginia,
    Maryland and New York do not impose manifesting or tracking
    requirements on hazardous waste from small quantity generators.
    From this evidence, a reasonable juror could infer that, as a whole,
    MSW generated outside Virginia poses health and safety risks not
    posed by MSW generated inside Virginia. Such a finding would sat-
    isfy the Defendants' burden of establishing that the statutory provi-
    sions at issue are justified by a reason other than economic
    protectionism.
    32
    2.
    With respect to the second prong of the strict scrutiny test, the
    Defendants must prove that the statutory provisions at issue are the
    least discriminatory means of addressing Virginia's concern that
    MSW generated outside Virginia poses health and safety risks not
    posed by MSW generated inside Virginia.
    a.
    The Defendants assert that any plan for improving state police
    powers over MSW must begin with and be linked to limiting the vol-
    ume of MSW to a level where waste can be screened adequately. In
    support of this assertion, the Defendants rely on the following sworn
    statements by Virginia's Director of Program Coordination for DEQ:
    The cap statute is a necessary and appropriate response to
    the MSW volume crisis faced by the Commonwealth. The
    problem is particularly acute with regard to out-of-state
    MSW. While out-of-state MSW poses more of a threat than
    Virginia MSW, the Commonwealth has less ability to police
    the out-of-state loads. Any plan for improving state police
    powers over MSW must begin with and be linked to control-
    ling the volume to a level where waste can be adequately
    screened.
    The disposal cap statute allows the Commonwealth to
    better protect health and safety within the Commonwealth
    by controlling daily levels of MSW to a volume that reason-
    ably can be managed and policed.
    * * *
    Increased DEQ inspections are a valuable mechanism for
    increasing adherence to regulations. However, the volume
    problem cannot be controlled simply by stepping up the
    inspection rate at landfills. The number of inspectors is sim-
    ply one component of an effective waste-screening program
    by the Commonwealth. Matching the number of inspectors
    33
    to the increasing volumes becomes counterproductive at a
    point where the traffic of large container trucks arriving at
    the landfill face, depositing their loads, and departing ren-
    ders the landfill face unsafe for foot traffic. Without a doubt,
    high volumes of waste make inspecting waste even more
    difficult and exacerbate an ongoing problem.
    The time required for the DEQ inspectors to adequately
    screen the waste will limit the volume of waste that can be
    processed at a landfill on a daily basis. An effective screen-
    ing program by the Commonwealth would require the
    unloading of vehicles on an impermeable pad or other area
    dedicated to waste screening. The waste would then have to
    be spread to a sufficient shallow depth on the pad to identify
    individual components, including the breaking apart of
    waste received in a baled, compacted, or frozen state.
    Intense visual screening would then be conducted by the
    inspector. Besides visual screening, chemical analysis
    through hazardous waste screening devices would have to
    be undertaken in order to detect hazardous waste which can-
    not be detected visually. Further, the testing protocol for
    certain waste may involve laboratory analysis that cannot be
    completed in short duration. If unauthorized waste is discov-
    ered, processes must be in place for the removal and proper
    disposition of waste at an appropriate waste facility. The
    Commonwealth will have to develop a specific program
    depending on the needs and character of each different facil-
    ity. Once a program is developed, it will have to be refined
    until it is proven effective. This process would slow opera-
    tions down to a halt and have the practical effect of lowering
    daily intake to far lower than 2,000 tons a day.
    A properly designed certification requirement would not
    be as effective as the disposal cap statute because, without
    volume control, DEQ cannot adequately police MSW loads.
    (J.A. 1159-61).
    In response, the Plaintiffs primarily argue that the Defendants have
    failed to meet the second prong because the Cap Provision does not
    34
    use the least discriminatory means of addressing the alleged health
    and safety concern about the composition of MSW generated outside
    Virginia. The Plaintiffs point out that the Cap Provision makes no
    effort to distinguish between the MSW of states according to an indi-
    vidual state's level of MSW regulation. According to the Plaintiffs,
    interstate commerce would be burdened less if Virginia only capped
    the amount of waste that can be imported from states with MSW reg-
    ulatory schemes less restrictive than Virginia. Additionally, the more
    closely a state's MSW regulatory scheme tracks that of Virginia, the
    higher the cap should be.
    At first blush, the Plaintiffs' argument seems more discriminatory
    against MSW generated outside Virginia than the across the board cap
    in the Cap Provision. However, when one carefully considers the
    Plaintiffs' argument, its logic is clear. If a state enacts a statute that
    purposely discriminates against interstate commerce in an effort to
    address a concern other than economic or resource protectionism, the
    second prong of the strict scrutiny test requires that the statute impose
    the least burden possible on interstate commerce. In other words,
    rather than discriminating against MSW from every state other than
    Virginia, Virginia's cap should only target the MSW from states that
    have lesser health and safety standards regarding MSW than Virginia.
    Because the Defendants have presented no evidence as to why a nar-
    rower capping statute would not adequately address the identified
    health and safety concerns for Virginia citizens, the Defendants fail
    to survive the Plaintiffs' motion for summary judgment with respect
    to the second prong of the strict scrutiny test as it pertains to the Cap
    Provision.10
    10
    _________________________________________________________________
    10 The situation at issue here is materially distinguishable from the situ-
    ation in Maine v. Taylor, 
    477 U.S. 131
     (1986), legal authority heavily
    relied upon by the Defendants. In Taylor, sampling and inspection proce-
    dures did not already exist for testing whether baitfish imported from
    outside Maine contained parasites harmful to native fisheries. Here, sam-
    pling and inspection procedures already exist for testing whether MSW
    generated outside Virginia contains materials harmful to the health and
    safety of Virginia citizens. The Defendants' proffered nondiscriminatory
    reason for the Cap Provision is that some states have less strict regula-
    tions regarding the content of MSW than Virginia. The Defendants have
    offered evidence that the inspection procedures regarding MSW are inad-
    35
    b.
    The Defendants argue that they have submitted sufficient evidence
    to create a genuine issue of material fact regarding whether the Stack-
    ing Provision and the Three Rivers' Ban are the least discriminatory
    alternatives available for protecting the health and safety of Virginia
    citizens against the toxic contamination of its rivers from unintended
    spills. We agree. Notwithstanding the Plaintiffs' protestations to the
    contrary, the Defendants have submitted sufficient evidence in this
    regard to create genuine issues of material fact that need to be
    resolved by the trier of fact. For example, the Defendants have sub-
    mitted the sworn statement of DEQ Director Dennis Treacy that based
    upon his knowledge and experience, the Stacking Provision and Three
    Rivers' Ban are necessary to protect the health and safety of Virginia
    citizens. Treacy outlines in a sworn declaration why and how barge
    transport of MSW presents serious and unique health and safety
    threats to Virginia's citizens that cannot be alleviated absent enforce-
    ment of the Stacking Provision and the Three Rivers' Ban. Further-
    more, the record contains Hale's answers to interrogatories in which
    Hale admits: (1) in 1993, it lost thirty-three containers containing gen-
    eral merchandise overboard on a barge it owned due to improper lash-
    ing; and (2) in 1994, a fire resulted in the partial destruction of cargo
    on board a barge it owned. These incidents certainly suggest the
    potential for a health and environmental disaster on a Virginia water-
    way presented by the barge transport of MSW.
    c.
    As for the Trucking Certification Provision and the Four or More
    Axle Provision, the Defendants fail to offer any affirmative evidence
    of the non-existence of less burdensome alternatives on interstate
    commerce. Instead, the Defendants rely on the deference that is tradi-
    _________________________________________________________________
    equate to protect the health and safety of Virginia citizens with respect
    to MSW generated from states outside Virginia with MSW regulatory
    schemes less strict than Virginia. However, the Defendants have offered
    no evidence as to why the MSW generated from states with MSW regu-
    latory schemes that are equally or more strict than Virginia should be
    capped.
    36
    tionally given state legislation in the area of highway safety. The tra-
    ditional deference that is due state legislation in the area of highway
    safety
    derives in part from the assumption that where such regula-
    tions do not discriminate on their face against interstate
    commerce, their burden usually falls on local economic
    interests as well as other States' economic interest, thus
    insuring that a State's own political processes will serve as
    a check against unduly burdensome regulations. Less defer-
    ence to the legislative judgment is due . . . where the local
    regulation bears disproportionately on out-of-state residents
    and businesses.
    Kassel v. Consolidated Freightways Corp., 
    450 U.S. 662
    , 675-76
    (1981) (internal quotation marks omitted).
    While all the parties agree that the Trucking Certification Provision
    and the Four or More Axle Provision are not facially discriminatory
    against MSW generated outside Virginia, and we have already deter-
    mined that a genuine issue of material fact exists regarding whether
    these statutory provisions discriminate in their practical effect against
    MSW generated outside Virginia, the Defendants' argument that we
    are required to give deference to the legislative judgment of the Gen-
    eral Assembly in applying the second prong of the strict scrutiny anal-
    ysis (to the Trucking Certification Provision and the Four or More
    Axle Provision) is without merit. This is because we have also deter-
    mined that no reasonable juror could find that in enacting these two
    statutory provisions Virginia's General Assembly acted without a dis-
    criminatory purpose. Such a discriminatory purpose wholly undercuts
    the notion that Virginia's political process served as a check against
    unduly burdensome regulations. Without such a check, the rationale
    for owing deference to the legislative judgment of Virginia's General
    Assembly in the area of highway safety is completely lacking.
    With no deference owed to the legislative judgment of Virginia's
    General Assembly in enacting the Trucking Certification Provision
    and the Four or More Axle Provision, and with absolutely no evi-
    dence showing that less burdensome alternatives do not exist on inter-
    state commerce, these two statutory provisions do not survive the
    37
    second prong of the strict scrutiny test. Accordingly, we affirm the
    district court's grant of summary judgment in favor of the Plaintiffs
    with respect to their dormant Commerce Clause challenge in regard
    to the Trucking Certification Provision and the Four or More Axle
    Provision.
    E.
    The Defendants next seek to avoid confrontation with the strictures
    of the dormant Commerce Clause altogether by asserting application
    of the market participant doctrine. Under the market participant doc-
    trine, "a state acting in its proprietary capacity as a purchaser or seller
    may favor its own citizens over others." Cammps New-
    found/Owatonna, Inc. v. Town of Harrison, 
    520 U.S. 564
    , 592-93
    (1997) (internal quotation marks omitted). If there is no "direct state
    involvement in the market," however, the strictures of the dormant
    Commerce Clause apply with full force. 
    Id. at 593
    .
    The record in this case, when viewed in the light most favorable
    to the Defendants, leaves no doubt, as the district court astutely
    observed, that in enacting the statutory provisions at issue, Virginia
    was not acting as a private participant in the waste disposal market,
    but as regulator of "the conduct of others in that market as only a state
    can do." Waste Management II, 64 F. Supp.2d at 544. Accordingly,
    the market participant doctrine is inapplicable.
    F.
    The Defendants next argue that in enacting Subchapter IV of the
    Resource Conservation and Recovery Act of 1976 (RCRA), 
    42 U.S.C. §§ 6941
    -6949a, Congress intended to authorize a state to dis-
    criminate against MSW generated outside that state, thus overriding
    the dormant Commerce Clause. We disagree.
    The dormant Commerce Clause prohibits states from unjustifiably
    discriminating against the free flow of interstate commerce. Environ-
    mental Tech. Council, 
    98 F.3d at 782
    .
    Where Congress has acted in an area specifically autho-
    rizing state or local government action, the dormant Com-
    38
    merce Clause is, however, inapplicable, even if the state
    action interferes with interstate commerce. . . .
    In order for a state law to be removed from the reach of
    the dormant Commerce Clause, however, congressional
    intent to authorize the discriminating law must be either
    unmistakably clear or expressly stated. Congress need not
    state that it intends to override the dormant Commerce
    Clause, but it must affirmatively have contemplated the oth-
    erwise invalid state legislation.
    
    Id.
     (internal quotation marks omitted). Here, the Defendants bear the
    burden of establishing congressional intent to authorize a state to dis-
    criminate against MSW generated outside that state. Wyoming v.
    Oklahoma, 
    502 U.S. 437
    , 458 (1992).
    Subchapter IV of RCRA governs "State or Regional Solid Waste
    Plans." Its objectives "are to assist in developing and encouraging
    methods for the disposal of solid waste which are environmentally
    sound and which maximize the utilization of valuable resources
    including energy and materials which are recoverable from solid
    waste and to encourage resource conservation." 
    42 U.S.C. § 6941
    .
    These objectives are to be accomplished by federal"assistance to
    States or regional authorities for comprehensive planning pursuant to
    Federal guidelines . . . ." 
    Id.
    In support of their congressional override argument, the Defen-
    dants point to a provision of Subchapter IV in which Congress
    directed that states be encouraged to consider numerous local condi-
    tions in addressing their solid waste disposal problems, including:
    "population density, distribution, and projected growth"; local "geo-
    graphic, geologic, climatic, and hydrologic characteristics"; and "po-
    litical, economic, organizational, financial, and management problems
    affecting comprehensive solid waste management." 
    42 U.S.C. § 6942
    (c). According to the Defendants, by encouraging states to
    account for these factors in creating MSW plans, Congress "explicitly
    gave states the authority to protect local interests when it comes to
    MSW management, including the authority to limit or exclude MSW
    from other states." (the Defendants' Br. at 37).
    39
    The Defendants also contend that the legislative history of RCRA
    makes unmistakably clear that Congress intended to override the dor-
    mant Commerce Clause so as to constitutionally permit a state to
    refuse disposal of MSW generated outside that state. The snippets of
    legislative history upon which the Defendants rely in making this
    argument are as follows: (1) "[i]n formulating a state plan it is the
    Committee's intention to permit wide flexibility on the part of the
    state developing such plan so that each state can plan for its particular
    problems," H.R. Rep. No. 94-1491, pt. 1 at 35 (1976), reprinted in
    1976 U.S.C.C.A.N. 6238, 6273; (2) Subchapter IV does not "prevent
    or effect [sic] any activities that [were] presently being carried out"
    by states at the time Subchapter IV was enacted,11 11 
    id. at 64, 6302
    ; and
    (3) a statement that "[i]t is the purpose of this legislation to assist the
    cities, counties and states in the solution of the discarded materials
    problem," 
    id. at 11, 6249
    .
    Below, the district court concluded that these isolated bits of legis-
    lative history and the broadly worded statutory language upon which
    they rely "do not come close to expressing an``unmistakably clear'
    intent on the part of Congress to exempt state laws relating to solid
    waste from the limitations of the dormant Commerce Clause." (J.A.
    10). We fully agree with this conclusion. The fragments of statutory
    language and legislative history cited by the Defendants fall far short
    of the demanding standard that congressional intent be unmistakably
    clear. See In re: Southeast Arkansas Landfill, Inc., 
    981 F.2d 372
    , 377
    (8th Cir. 1992) (holding that "[n]othing in RCRA or any other federal
    statute comes close to authorizing different treatment of out-of-state
    waste").
    G.
    The Defendants' next to last attempt at avoiding the strictures of
    _________________________________________________________________
    11 The Defendants claim this second snippet of legislative history is rel-
    evant because at the time Congress enacted Subchapter IV it acknowl-
    edged that "[s]ome states have moved to ban the importation of waste as
    have their political subdivisions. These actions have raised serious ques-
    tions relative to restraint of trade and interference with interstate com-
    merce." H.R. Rep. No. 94-1491, pt. 1 at 3 (1976), reprinted in 1976
    U.S.C.C.A.N. 6238, 6240.
    40
    the dormant Commerce Clause altogether is their assertion of a pur-
    ported affirmative defense. In this regard, the Defendants challenge
    the district court's grant of the Plaintiffs' motion to strike their affir-
    mative defense.
    Federal Rule of Civil Procedure 12(f) permits a district court, on
    motion of a party, to "order stricken from any pleading any insuffi-
    cient defense." Rule 12(f) motions are generally viewed with disfavor
    "because striking a portion of a pleading is a drastic remedy and
    because it is often sought by the movant simply as a dilatory tactic."
    5A A. Charles Alan Wright et al., Federal Practice & Procedure
    § 1380, 647 (2d ed. 1990). Nevertheless, "a defense that might con-
    fuse the issues in the case and would not, under the facts alleged, con-
    stitute a valid defense to the action can and should be deleted." Id.
    § 1381 at 665.
    The Defendants' purported affirmative defense is based upon their
    assertion that New York City interfered with the free flow of com-
    merce, and by extension the Commerce Clause, by taking affirmative
    steps to discourage the disposal of MSW within the borders of the
    State of New York. Having so interfered, the Defendants contend the
    Plaintiffs are prohibited from challenging the statutory provisions at
    issue under the dormant Commerce Clause. Not surprisingly, the
    Defendants cite no case law in support of their position.
    We hold the district court did not err in striking the Defendants'
    purported affirmative defense. Even assuming arguendo that New
    York's alleged conduct should legally prevent it from bringing a con-
    stitutional challenge under the dormant Commerce Clause to the stat-
    utory provisions at issue, at the risk of stating the obvious, neither the
    State of New York nor New York City is a plaintiff in this litigation.
    Furthermore, we see no basis for somehow holding any of the Plain-
    tiffs vicariously liable for the conduct of the State of New York
    and/or New York City.
    VI.
    Lastly, the Defendants challenge the district court's holding that
    the Three Rivers' Ban and the Stacking Provision violate the Suprem-
    acy Clause. The Supremacy Clause provides that the "Constitution,
    41
    and the Laws of the United States which shall be made in Pursuance
    thereof . . . shall be the supreme Law of the Land; and the Judges in
    every State shall be bound thereby, any Thing in the Constitution or
    Laws of any State to the Contrary notwithstanding." U.S. Const., art.
    VI, cl.2.
    Thus, federal legislation, if enacted pursuant to Congress'
    constitutionally delegated authority, can nullify conflicting
    state or local actions. Consideration of issues arising under
    the Supremacy Clause start[s] with the assumption that the
    historic police powers of the States [are] not to be super-
    seded by . . . Federal Act unless that [is] the clear and mani-
    fest purpose of Congress. The ultimate touchstone of
    preemption analysis is the intent of Congress. Even when
    Congress' intent is unclear, state law must nevertheless
    yield when it conflicts with federal law. In making the deter-
    mination of whether state law conflicts with federal law, the
    test to apply is whether it is impossible to comply with both
    state and federal law or whether the state law stands as an
    obstacle to the accomplishment of the full purposes and
    objectives of the relevant federal law.
    National Home Equity Mortg. Assoc. v. Face, 
    2001 WL 101454
     at *2
    (4th Cir. February 7, 2001) (internal quotation marks and citations
    omitted) (alteration in original).
    The Supremacy Clause claim at issue in this appeal principally
    relies on the federal documentation provisions governing the use of
    vessels in the coastwise trade. See 
    46 U.S.C. § 12103
     (describing pre-
    requisites for issuance of a "certificate of documentation") and
    § 12106 (describing criteria for endorsing a certificate of documenta-
    tion with a "coastwise endorsement"). According to the record, each
    barge that Hale plans to supply Waste Management for the transporta-
    tion of MSW has a valid federal Certificate of Documentation autho-
    rizing it to engage in "coastwise trade" and a valid Coast Guard
    Certificate of Inspection.
    The Supreme Court has held that a federal license confers upon the
    licensee a right to operate freely in each state's waters, subject only
    to legitimate exercises of the state's police power. Douglas v. Sea-
    42
    coast Prods., Inc., 
    431 U.S. 265
    , 281 (1977). Thus, "[s]tates may
    impose upon federal licensees reasonable, nondiscriminatory conser-
    vation and environmental protection measures otherwise within their
    police power." 
    Id. at 277
    . Precedent is clear, however, that a state stat-
    ute that completely excludes federally licensed commerce upon such
    state's waterways is unconstitutional. 
    Id. 283
    .
    Here, the Three Rivers' Ban completely excludes federally licensed
    barges from transporting any type or amount of MSW on the Rappa-
    hanock, James and York Rivers in Virginia. The reasonableness of
    such a complete ban is simply not supported by the evidence in the
    record, even when viewed in the light most favorable to the Defen-
    dants. The issue of whether federal preemption of the Stacking Provi-
    sion exists is far less clear. Indeed, genuine issues of material fact
    exist regarding the health and environmental risks associated with
    stacking sealed shipping containers containing MSW more than two
    high on barges. Accordingly, the district court erred in concluding as
    a matter of law that the Stacking Provision violates the Supremacy
    Clause.12
    12
    _________________________________________________________________
    12 The Defendants contend that the "savings" language contained in the
    Three Rivers' Ban and the Stacking Provision save those statutes from
    a Supremacy Clause challenge. We reject this argument on the basis that
    the restrictions at issue are straightforward and their accompanying sav-
    ings language is repugnant to those restrictions. See Looney, 133 S.E. at
    755.
    We also reject the Defendants' argument that 
    42 U.S.C. § 1983
     does
    not provide Hale a remedy with respect to its Supremacy Clause claim.
    By its terms, Title 
    42 U.S.C. § 1983
     only provides a remedy for the vio-
    lation of rights that are defined in the Constitution or in a federal statute.
    Thus, the § 1983 remedy will be available for a violation of a federal
    statute only if the statute itself "gives rise to a federal right." Blessing v.
    Freestone, 
    520 U.S. 329
     (1997).
    While "the Supremacy Clause, of its own force, does not create any
    rights enforceable under § 1983," Golden State Transit v. Los Angeles,
    
    493 U.S. 103
    , 107 (1989), the federal documentation provisions govern-
    ing the use of vessels in the coastwise trade, see 
    46 U.S.C. §§ 12103
    ,
    12106, confer a right in the form of a license to operate freely in each
    state's waters subject only to the legitimate exercise of a state's police
    powers. Douglas, 
    431 U.S. at 281
    . As the holder of such licenses, Hale
    has standing to assert its Supremacy Clause claim under § 1983.
    43
    VII.
    In conclusion, we affirm the district court's grant of summary judg-
    ment in favor of the Plaintiffs with respect to their dormant Com-
    merce Clause challenges to the Cap Provision, the Trucking
    Certification Provision, and the Four or More Axle Provision. We
    also affirm the district court's grant of summary judgment in favor of
    the Plaintiffs with respect to Hale's Supremacy Clause challenge to
    the Three Rivers' Ban. However, we vacate the district court's grant
    of summary judgment in favor of the Plaintiffs with respect to their
    dormant Commerce Clause challenge to the Three Rivers' Ban and
    the Stacking Provision and remand for further proceedings consistent
    with this opinion. We also vacate the district court's grant of sum-
    mary judgment in favor of Hale with respect to Hale's claim that the
    Stacking Provision violates the Supremacy Clause and remand for
    further proceedings consistent with this opinion. Finally, we vacate
    the district court's entry of judgment against Governor Gilmore and
    remand with instructions that the district court dismiss him as a party
    in this action.
    AFFIRMED IN PART, VACATED IN PART,
    AND REMANDED
    WIDENER, Circuit Judge, concurring:
    I concur in all of the opinion of the court except Part IV.A, and I
    concur in the result that Part IV.A obtains.
    I.
    The pertinent part of the Code section involved is not complicated:
    Any locality is authorized to contract with any person,
    whether profit or non-profit, for garbage and refuse pickup
    and disposal services in its locality and to enter into con-
    tracts relating to waste disposal facilities which recover
    energy or materials from garbage, trash and refuse.
    Virginia Code § 15.2-932 (Michie 1997).
    44
    As to Part IV.A and the statute involved here, it is obvious to me
    that a more reasonable reading of the plain language of the statute
    would confine the contracting authority to "its locality" in accord with
    the position taken by the defendants under the Dillon's rule construc-
    tion required in Virginia when construing statutes conferring power
    upon political sub-divisions. That rule, as construed, is that "[a]ny
    fair, reasonable doubt concerning the existence of the power is
    resolved by the courts against the corporation and the power is
    denied," as noted in the majority opinion, slip 16. Richmond v. Bd. of
    Sup'rs of Henrico County, 
    101 S.E.2d 641
    , 645 (Va. 1958). But this
    Code section has been construed by the Virginia Supreme Court in
    Concerned Residents v. Bd. of Sup'rs of Gloucester County, 
    449 S.E.2d 787
     (Va. 1994) in the context of trash collection, as here: "ac-
    tion taken by the county in response thereto is a legislative act in the
    furtherance of the county's police powers." 449 S.E.2d at 790. "When
    a legislative body [so] exercises its police powers every possible pre-
    sumption shall be indulged in favor of the validity of its legislative
    act." 449 S.E.2d at 790.
    In the case at hand there is no doubt that the trash facility involved
    here undertook, with the agreement and consent of the county, the
    reception of trash from outside Virginia. This undertaking was just
    such an exercise of police power as the Virginia Court referred to in
    Concerned Residents. When that is taken into account, in my opinion,
    taking the out-of-state trash into the Virginia trash dump was not ultra
    vires under the Dillon rule. In this construction of the statute, I am
    supported by Virginia Code § 15.2-937(B), a part of the same statu-
    tory scheme as § 15.2-932, which refers to "solid waste transported
    from any jurisdiction," an obvious inference that the importation of
    foreign trash is contemplated by the statute.
    The powers of political sub-divisions in Virginia are quite limited
    under Dillon's rule, as noted by the majority. In addition to powers
    granted in express words, or incident to and necessary, or fairly
    implied, by such words, they are limited to "those essential to the
    accomplishment of the declared objects and purposes of the corpora-
    tion - not simply convenient but indispensable." Board of Supervisors
    of Henrico Co., 101 S.E.2d at 645; Cline v. Robb, 
    548 F. Supp. 128
    ,
    131 n.7 (E.D. Va. 1982) (three-judge court). The Commonwealth can
    thus limit the power of political sub-divisions to contract with waste
    45
    disposal facilities of any kind, but the Commonwealth may not autho-
    rize a political sub-division to contract with such waste disposal facil-
    ities in violation of the Constitution, as here.
    There is no reason apparent why Virginia may not permit her polit-
    ical sub-divisions to operate waste disposal facilities for their own
    benefit, either performing the operation itself or by contract. Or Vir-
    ginia may do the same. In that event, the Commonwealth or the politi-
    cal sub-division disposing of local waste would act under the market
    participant exception to the Dormant Commerce Clause. See Reeves,
    Inc. v. Stake, 
    447 U.S. 429
     (1980) (holding that a state-owned con-
    crete plant could choose to sell only to state residents); Nat'l Solid
    Waste Mgmt. Assn. v. Williams, 
    146 F.3d 595
     (8th Cir. 1998); cf.
    Med. Waste Mgmt. Assoc. v. Mayor and City Council of Baltimore,
    
    966 F.2d 148
     (4th Cir. 1992). But if the Commonwealth chooses to
    permit the political sub-divisions to use waste disposal as a revenue
    source by the importation of foreign waste, it must be done within the
    confines of the Constitution. Language authorizing political sub-
    divisions to act as market participants might be easily drafted, but
    such has not been accomplished here.
    II.
    I do not rely on the rather flamboyant statements of the political
    authorities in arriving at my concurrence.
    KING, Circuit Judge, concurring in part and dissenting in part:
    I am pleased to concur in nearly all of the fine opinion authored by
    my friend Judge Hamilton. I part company with him solely on the
    issue concerning the propriety of this suit being maintained against
    Governor Gilmore, and I respectfully dissent on that point. In deter-
    mining that the Governor is not a proper party to this action, the
    majority, in my view, erroneously concludes that "[t]he fact that he
    has publicly endorsed and defended the challenged statutes does not
    alter our analysis." Ante, at 15. The majority instead posits that our
    resolution of this question rests on whether his general duty to "take
    care that the laws be faithfully executed," Va. Const. art. V, § 7,
    makes him a proper defendant in this case under the exception to
    Eleventh Amendment immunity found in Ex parte Young, 
    209 U.S. 46
    123 (1908). Because Governor Gilmore's connection to the statutes
    at issue is far more specific than his general duty to uphold the law,
    I would not dismiss him as a party.1
    1
    The majority's own account of the facts in this case confirms to me
    that Governor Gilmore is not just a superfluous target of the Plaintiffs.
    Upon learning of New York City's imminent exportation of munici-
    pal solid waste ("MSW"), the Governor announced plans to "dis-
    patch[ ] his top environmental officials to meet with their counterparts
    from other states ``to ensure that Virginia does not drown in a regional
    sea of garbage.'" Ante, at 9 (quoting J.A. 597). He also imposed a
    moratorium on new landfill development, and he instructed his Secre-
    tary of Natural Resources to recommend legislation to deal with the
    MSW problem. See 
    id. at 9
    . The Governor himself proposed such leg-
    islation in his 1999 State of the Commonwealth address to the Gen-
    eral Assembly of Virginia, referring specifically to Waste
    Management's plans "``to import four thousand more tons of New
    York City trash into Virginia per day.'" 
    Id.
     (quoting J.A. 630). More-
    over, "when New York City Mayor Giuliani suggested that Virginia
    might have an obligation to accept New York City's MSW, Governor
    Gilmore responded that ``the home state of Washington, Jefferson, and
    Madison has no intention o[f] becoming New York's dumping
    grounds.'" 
    Id.
     (quoting J.A. 635) (alteration in original). In fact, in
    early 1999, the General Assembly approved and the Governor signed
    into law the five statutory provisions at issue in this case. See 
    id. at 10
    .
    Furthermore, Governor Gilmore's co-defendants -- the Common-
    wealth's Secretary of Natural Resources and the Director of the Vir-
    ginia Department of Environmental Quality -- possess unquestioned
    authority to enforce these statutes. Significantly, though not explicitly
    discussed in the course of the district court proceedings, they serve
    _________________________________________________________________
    1 Likewise, the district court, in retaining Governor Gilmore as a party,
    recognized that his connection to the disputed statutes extends beyond
    his general duty to uphold the law. The court noted that "many courts
    have held that a generalized duty to enforce state law is insufficient.
    Governor Gilmore, however, has actively and publicly defended the leg-
    islation at issue. He is therefore a proper defendant." Waste Mgmt. Hold-
    ings, Inc. v. Gilmore, 
    64 F. Supp. 2d 537
    , 543 n.6 (E.D. Va. 1999)
    (citations omitted).
    47
    under the direction and control of the Governor. See 
    Va. Code Ann. § 2.1-51.7
     (1995) ("The Secretary [of Natural Resources] shall hold
    office at the pleasure of the Governor . . . ."); 
    id.
     § 2.1-51.8:1 ("The
    Secretary of Natural Resources shall be subject to direction and super-
    vision by the Governor."); 
    Va. Code Ann. § 10.1-1185
     (1998) ("The
    Department [of Environmental Quality] shall be headed by a Director
    appointed by the Governor to serve at his pleasure for a term coinci-
    dent with his own. The Director . . . shall, under the direction and
    control of the Governor, exercise such power and perform such duties
    as are conferred or imposed upon him by law and shall perform such
    other duties as may be required of him by the Governor . . . .").
    In sum, not only did Governor Gilmore conceive and engineer pas-
    sage of the statutes, he has championed those statutory provisions
    and, as is reflected in the Virginia Code, he possesses the direct
    authority over his co-defendants to effect his clear aim of enforcement.2
    2
    In my view, the Governor's connection to the disputed statutory pro-
    visions amply supports retaining him as a defendant in this case, even
    under a stringent test for applying the Ex parte Young exception such
    as that recently articulated by the Fifth Circuit. See Okpalobi v. Fos-
    ter, No. 98-30228, 
    2001 WL 242485
    , at *8 (5th Cir. Mar. 12, 2001)
    (en banc) (plurality opinion) ("[A]ny probe into the existence of a
    Young exception should gauge (1) the ability of the official to enforce
    the statute at issue under his statutory or constitutional powers, and
    (2) the demonstrated willingness of the official to enforce the statute.").3
    3
    I respectfully dissent from the majority opinion on this point only.
    _________________________________________________________________
    2 Because this case does not squarely present the issue, I need not take
    a position here on whether a governor's general duty to uphold the law,
    without more, can be sufficient to invoke the exception to Eleventh
    Amendment immunity found in Ex parte Young.
    3 At the very least, I would, rather than rule in favor of the Governor
    at this stage, remand this issue to the district court for a more extensive
    examination of the Governor's relevant statutory and constitutional pow-
    ers in relation to the factual underpinnings of this case. Cf. Lytle v. Grif-
    fith, 
    240 F.3d 404
    , 410 (4th Cir. 2001) (where Eleventh Amendment
    immunity raised for first time on appeal, exercising discretion to remand
    the issue to the district court "to address in the first instance the relevant
    questions of fact and state law").
    48