National Solid Waste Management Ass'n v. Pine Belt Regional Solid Waste Management Authority ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED NOVEMBER 17, 2004
October 29, 2004
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 03-60470
NATIONAL SOLID WASTE MANAGEMENT
ASSOCIATION; ET AL,
Plaintiffs,
NATIONAL SOLID WASTE MANAGEMENT
ASSOCIATION; BFI WASTE SYSTEMS,
BFI WASTE SYSTEMS OF MISSISSIPPI
LLC; WASTE MANAGEMENT OF MISSISSIPPI INC.,
Plaintiffs-Appellees,
versus
PINE BELT REGIONAL SOLID WASTE
MANAGEMENT AUTHORITY AND ITS BOARD
OF COMMISSIONERS; COVINGTON COUNTY;
JONES COUNTY; PERRY COUNTY; CITY OF
PETAL; CITY OF LAUREL; CITY OF
HATTIESBURG, MISSISSIPPI;
Defendants-Appellants,
MIKE MOORE,
Intervenor-Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
Before GARWOOD, WIENER and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
The Mississippi cities and counties that belong to the Pine
Belt Regional Solid Waste Management Authority (the Authority)
enacted solid waste flow control ordinances requiring that all
solid waste collected within those cities and counties be disposed
of at facilities owned by the Authority. Plaintiffs-appellees,
National Solid Wastes Management Association (NSWMA), BFI Waste
Systems of Mississippi, LLC (BFI), and Waste Management of
Mississippi, Inc. (Waste Management) (collectively, plaintiffs),
filed this suit against defendants-appellants, the Authority and
its member cities and counties, claiming that the flow control
ordinances violated the dormant Commerce Clause. Defendants-
appellants now timely appeal the judgment, rendered after a bench
trial, declaring the flow control ordinance invalid under the
dormant Commerce Clause and enjoining their enforcement. We
dismiss plaintiffs’ complaint in part for want of standing and with
respect to the remainder we reverse and render judgment for
defendants–appellants.
Facts and Proceedings Below
In 1989 and 1990, several cities and counties in South
Mississippi developed a master plan for the management of the solid
waste in the region. The goal of the plan was to develop an
environmentally-sensitive and cost-effective program for the
2
disposal of the region’s solid waste. Among other things, the
master plan recommended the creation of a regional solid waste
management authority and the construction of a regional landfill.
In 1992, the Authority was formed and the plan was adopted. At
that time, the Authority was made up of five counties (Covington,
Jones, Perry, Forrest, and Lamar) and three cities (Petal, Laurel,
and Hattiesburg) in Mississippi (collectively, the Members). By
the time this suit was filed, Forrest and Lamar Counties had
withdrawn from the Authority.
In 1992, the Authority issued a request for proposals (RFP) to
interested parties, including plaintiffs BFI and Waste Management,
regarding the regional landfill. Proposals were to be given for
two options: 1) to own, design, permit, build, and operate the
landfill for thirty years or 2) to equip and operate the landfill
for seven years, with the Authority building and owning the
landfill. The RFP included an estimated volume of disposable solid
waste that would be generated in the geographic area comprised by
the Members1 and a statement that “[u]pon request, the Authority
1
The 1992 RFP estimated the annual volume of disposable waste in the
Region to be 153,000 tons. That estimate, however, was derived before Forrest
and Lamar Counties withdrew from the Authority. After these two counties
withdrew (which was prior to July 2002), the projected volume of waste for the
Authority’s Region would have been about 129,000–130,000 tons per year.
When creating the master plan and issuing the RFP, the Authority
contemplated, at least implicitly, that all solid waste generated within the
Region would be disposed of at the landfill that was the subject of the RFP. The
Authority’s landfill is, and always has been, the only “Subtitle D” landfill
within the Region. A Subtitle D landfill is one that is compliant with federal
regulations, issued pursuant to Subtitle D of the Resource Conservation and
Recovery Act of 1976 (RCRA), 42 U.S.C. § 6941, et. seq., setting the criteria for
sanitary landfills.
3
will require each [Member] . . . to adopt and enforce a flow
control ordinance in order to assure that the entirety of the . .
. waste stream generated within the [geographic area comprised by
the Members] will be managed and disposed of at the [Authority’s
landfill].” Five proposals were received, including from BFI and
Waste Management. Enviro, a company headquartered in Laurel,
Mississippi, submitted the lowest bid for Option 2, but did not
submit a bid for Option 1. The Authority analyzed the bids,
decided to own the landfill, and began implementation discussions
with Enviro prior to actual contract negotiations.
In 1996, the Authority issued revenue bonds to finance the
construction of the landfill and three transfer stations.2 Also in
1996, Enviro signed a contract with the Authority to operate the
Authority’s landfill,3 located in Perry County and completed in
1997, and transfer stations. The initial term of the contract was
for the life of the first landfill cell or seven years, whichever
was less, and was to be automatically extended for one-year terms
so long as both parties mutually agreed. In 2000, the Authority
refinanced the 1996 bonds and issued additional bonds to finance
the construction of a second cell at the landfill.
2
Waste collecting trucks often unload waste locally at a transfer station
until the waste is transported to a landfill for final disposal.
3
Enviro provides the labor, management, supplies, equipment, and insurance
for the landfill and operates the scales and performs all maintenance at the
landfill.
4
The Authority generates revenue by collecting fees for the
disposal of waste at its landfill and transfer stations. Thus the
Authority’s generation of revenue is based on the amount of garbage
that it receives at its facilities. To the extent that the
Authority is unable to generate sufficient income to meet its debt
payments, the Members are obligated to make up the shortfall.
From the time the landfill opened, the volume of refuse that
passed through and to the Authority’s facilities was significantly
less than the total amount of potential waste generated in the area
comprised by its Members. Although the Authority’s issuance of
bonds was based on a projected volume of 140,000 tons per year, in
fiscal year 1998 the landfill’s volume had reached only 105,305
tons and in fiscal year 1999, the volume dropped to 96,032 tons.
In 1999, in an attempt to increase its trash collection, and
therefore its revenue generation, the Authority extended the
service area of the landfill to include a total of 22 counties,
which allowed the Authority to receive waste at its landfill from
the additional counties which were not Members.4 While the volume
of trash deposited at the landfill increased with the expanded
service area, it reached a high of only 129,017 tons in fiscal year
4
According to its contract with the Authority, Enviro was obligated to
bring to the Authority’s landfill all the waste it collected within a 75-mile
radius of the landfill. The area comprised by the 22 counties roughly
corresponds to this 75-mile radius. The flow control ordinances, however, apply
only to the three counties and three cities that are Members of the Authority.
When the Authority first created its plan for the landfill, the service area
included only the five original member counties (Covington, Jones, Perry,
Forrest, and Lamar); the expanded service area added an additional 17 counties.
5
2000, with the tonnage decreasing thereafter (to 108,625 in 2001
and to 95,205 in 2002).
Due to an insufficient flow of rubbish through and to its
facilities, the Authority realized that, at the current volume of
waste, it would not be able to make its July 1, 2004 bond payment.
Believing that its facilities needed more garbage to remain viable,
the Authority adopted a resolution on July 10, 2002, directing its
Members to adopt flow control ordinances requiring that all
municipal solid waste generated within the then Member counties
(Covington, Jones and Perry) and cities (Petral, Laurel and
Hattiesburg) respectively [collectively, the Region] be transported
to its landfill or one of its transfer stations.5 Each Member
enacted identical ordinances, each applicable only within the
geographic area of the particular enacting Member, with September
1, 2002, as the effective date.6 Each ordinance provided that
noncompliance therewith would constitute a misdemeanor.
Following the enactment of the ordinances, plaintiffs on
August 29, 2002 filed this suit against the Authority and its
Members, seeking declaratory, injunctive, and monetary relief under
5
According to testimony at trial, the amount of trash currently leaving
the Region is between 50,000 to 70,0000 tons per year; if this trash were
directed to the Authority’s landfill, the tonnage disposed of at the landfill
would likely be over 140,000, roughly the amount needed to meet the Authority’s
debt obligations.
6
The flow control ordinances were subsequently reenacted in September,
October, and November of 2002.
6
42 U.S.C. § 1983.7 Plaintiffs BFI and Waste Management collect,
process, and dispose of commercial and residential solid waste and
currently ship the trash they collect within the Region to
landfills and transfer stations that they either own and operate or
that are owned and operated by affiliated companies. At the time
of the suit, solid waste collected by BFI and Waste Management
within the Region was and had been eventually transported to
landfills outside of the Region, but within Mississippi; none of
such waste was (or had been) transported outside of Mississippi
(nor did any of it originate as waste outside of Mississippi).8
The flow control ordinances would require that BFI and Waste
Management dispose of waste they collect within the Region only at
the Authority’s landfill in Perry County.
After the filing of the complaint, the parties agreed that the
enforcement of the ordinances would await the outcome of the case.
In October 2002, the Mississippi State Attorney General intervened
on behalf of Mississippi to defend a potential constitutional
challenge to the Mississippi statute pursuant to which the
7
Pine Belt Waste Systems, LLC, also joined with plaintiffs in bringing
this suit. Pine Belt Waste, however, was voluntarily dismissed as a plaintiff
on November 25, 2002, prior to trial.
8
Although the Authority’s landfill is the only Subtitle D landfill within
the Region, see supra note 1, the landfills to which BFI and Waste Management
currently haul garbage generated within the Region are Subtitle D landfills. BFI
currently hauls waste collected within the Region to its landfill in Madison
County, Mississippi, and Waste Management hauls its waste to a landfill owned and
operated by an affiliated company in Scott County, Mississippi.
7
Authority was authorized to direct its Members to enact the flow
control ordinances. See MISS. CODE. ANN. § 17-17-319(2).
Trial was held in December 2002 before the district judge
without a jury. After the trial, but before a decision was
rendered, Perry County filed a motion to dismiss for lack of
jurisdiction based on the “adequate state grounds” doctrine. Also
following the trial, the district judge recused himself on his own
motion, and the matter was subsequently properly assigned, with
consent of the parties, to a magistrate judge for decision. On
April 23, 2003, the magistrate judge denied the motion to dismiss
and issued findings of fact and conclusions of law and an
accompanying judgment, deciding that the ordinances were
unconstitutional under the dormant Commerce Clause and enjoining
their enforcement.9 Defendants on May 22, 2003, timely filed their
notice of appeal.
Discussion
Defendants contend that the flow control ordinances do not
violate the dormant Commerce Clause.10 We dismiss the dormant
9
No damages were awarded. While the judgment purports to generally award
“attorneys fees,” no amount thereof is stated in the judgment (or in the findings
and conclusions) and we are informed by the parties that plaintiffs have in
substance waived attorneys fees under this judgment by failing to file any
evidence of the amount of attorneys fees or any motion in connection therewith
as contemplated in FED. R. CIV. P. 54(d)92) and the local rules.
10
Defendants also contend that the district court lacked jurisdiction
because plaintiffs did not appeal the Member counties’ and cities’ adoption of
the ordinances to a state circuit court as authorized by Miss. Code Ann. 11-51-
75. See Benedict v. City of Hattiesburg, 693 So. 2d 377, 380 (Miss. 1997); Falco
Lime Inc. v. Mayor & Aldermen of City of Vicksburg, 836 So. 2d 711, 716 (Miss.
2002). We reject that contention. The instant suit is one under 42 U.S.C. §
8
Commerce Clause claim in part for lack of standing and reverse with
respect to the remainder of the claim.
A. Standard of Review
Review of questions of constitutional law is de novo. United
States v. Hemmingson, 157 F.3d 347, 355 (5th Cir. 1998). The
magistrate judge’s findings of fact, however, are reviewed for
clear error. City of New Orleans v. Mun. Admin. Servs., Inc., 376
F.3d 501, 506 (5th Cir. 2004).
B. Dormant Commerce Clause Analysis
Although the Commerce Clause is an affirmative grant of power
to Congress, U.S. CONST. art I, § 8, cl. 3, the Supreme Court has
interpreted the clause to contain a negative aspect, the so-called
“dormant” Commerce Clause. Dickerson v. Bailey, 336 F.3d 388, 395
(5th Cir. 2003). The dormant Commerce Clause “‘prohibits economic
protectionism—that is, regulatory measures designed to benefit
in-state economic interests by burdening out-of-state
competitors.’” Id. (quoting Wyoming v. Oklahoma, 112 S. Ct. 789,
800 (1992)).
1983 seeking declaratory and injunctive relief against local government
ordinances adopted under color of state law on the ground that the ordinances are
invalid under and contrary to the United States Constitution. See Dennis v.
Higgins, 111 S. Ct. 865 (1991); National Private Truck Council v. Oklahoma Tax
Comm’n, 115 S. Ct. 2351, 2353-54 (1995). “When federal claims are premised on 42
U.S.C. § 1983 . . . we have not required exhaustion of state judicial or
administrative remedies.” Steffel v. Thompson, 94 S. Ct. 1209, 1222 (1974). See
also Self-Ins. Inst. of America, Inc. v. Korioth, 993 F.2d 479, 482 (5th Cir.
1993).
9
We begin our dormant Commerce Clause analysis by asking
whether the ordinances “(1) facially discriminate against
out-of-state economic interests, or (2) regulate evenhandedly and
thereby evince only an indirect burden on interstate commerce.”
Dickerson, 336 F.3d at 396. In other words, we ask whether the
ordinances “reflect[] a discriminatory purpose or merely a
discriminatory effect.” Id. “Although . . . there is no clear
line of separation between these two” classifications, “the
threshold determination is significant if only because it
establishes the constitutional standard of review.” Id. (internal
quotations and citations omitted).
Regarding the first category, “[s]tate laws discriminating
against interstate commerce on their face are virtually per se
invalid.” Id. (internal quotations and citations omitted). The
ordinance will be unconstitutional unless the state actor “can
demonstrate, under rigorous scrutiny, that it has no other means to
advance a legitimate local interest.” Id. (internal quotations and
citations omitted). “At a minimum such facial discrimination
invokes the strictest scrutiny of any purported legitimate local
purpose and of the absence of nondiscriminatory alternatives.”
Hughes v. Oklahoma, 99 S. Ct. 1727, 1737 (1979). “Under this strict
scrutiny, . . . the state bears the heavy burden to rescue its
statutes.” Dickerson, 336 F.3d at 396 (internal quotations and
citations omitted). “This burden is stringent” and the statute at
10
issue is “generally struck down . . . without further inquiry.”
Id. (internal quotations and citations omitted).
With the second category—the “evenhanded statutes” that
effectuate a legitimate local interest and that only incidentally
affect interstate commerce—we apply the “Pike balancing test.” The
statute will be upheld unless the burden it imposes on interstate
commerce is “‘clearly excessive in relation to the putative local
benefits.’” Id. (quoting Pike v. Bruce Church, Inc., 90 S. Ct. 844,
847 (1970)).
The magistrate judge struck down the flow control ordinances,
finding them to be to be facially discriminatory against interstate
commerce. The magistrate judge also determined that the ordinances
would not pass the Pike test, assuming arguendo, as defendants
argued, that the ordinances were not facially discriminatory.
C. Plaintiffs’ Standing
Before we consider the merits, we must first determine whether
plaintiffs BFI and Waste Management have standing to challenge the
flow control ordinances.11 Although defendants have not explicitly
raised the issue of standing, we may consider it sua sponte. Bauer
11
As a not-for-profit trade association that represents the interests of
the private waste services industry and of which BFI and Waste Management are
members, plaintiff NSWMA’s standing is on this record entirely dependent upon
whether BFI and Waste Management having standing. See Public Citizen, Inc. v.
Bomer, 274 F.3d 212, 219 n.5 (5th Cir. 2001) (stating that “organizational
standing requires, . . . that individuals have standing to sue in their own
right”). NSWMA took absolutely no active role in this litigation and has not
submitted anything to establish its standing independent of that of BFI and Waste
Management.
11
v. Texas, 341 F.3d 352, 357 (5th Cir. 2003). Our standing analysis
consists of constitutional and prudential components.
1. Constitutional Standing
“To meet the constitutional standing requirement, a plaintiff
must show (1) an injury in fact (2) that is fairly traceable to the
actions of the defendant and (3) that likely will be redressed by
a favorable decision.” Procter & Gamble Co. v. Amway Corp., 242
F.3d 539, 560 (5th Cir. 2001) (citing Bennett v. Spear, 117 S. Ct.
1154, 1161 (1997); Lujan v. Defenders of Wildlife, 112 S. Ct. 2130,
2136 (1992)).
Plaintiffs meet the constitutional, or Article III, standing
requirements. Because of the flow control ordinances, plaintiffs
will not be able to ship the garbage they collect within the Region
to the landfills of their choice and, as a result, will be forced
to pay a “tipping”12 fee at the Authority’s landfill. Testimony at
trial indicates that plaintiffs’ cost to dispose of waste at the
Authority’s landfill, including the tipping fee and the
transportation cost, would be higher than their current cost.13
12
In garbage parlance, “tipping” is used in place of the less-refined
“dumping.”
13
In addition to a simple comparison of current costs against the costs
under the flow control ordinances, other testimony supports plaintiffs’ claim of
higher costs. The ordinances preclude plaintiffs from operating an
“internalized” business—meaning that they collect, transport, and dispose of the
waste using their own facilities. Testimony at trial suggests that such a method
of operation achieves the best economy of scale for a waste collector. Further,
BFI and Waste Management would face a reduced volume of waste at the transfer
stations to which they currently haul waste from the Region, because they most
likely cannot economically segregate at the transfer station the waste that comes
from within the Region from that which comes from outside the Region. The result
12
Thus, plaintiffs have an injury (higher operating costs) that is
traceable to the ordinances enacted by defendants and which would
be remedied if we rule that the ordinances are unconstitutional.
2. Prudential Standing
The more difficult question is whether plaintiffs meet the
prudential standing requirements. The goal of the prudential
standing requirements is to “determine whether the plaintiff ‘is a
proper party to invoke judicial resolution of the dispute and the
exercise of the court’s remedial powers.’” Procter & Gamble, 242
F.3d at 560 (quoting Bender v. Williamsport Area Sch. Dist., 106
S. Ct. 1326, 1334 n.8 (1986)).
“These judicially created limits concern whether a
plaintiff’s grievance arguably falls within the zone of
interests protected by the statutory provision invoked in
the suit, whether the complaint raises abstract questions
or a generalized grievance more properly addressed by the
legislative branch, and whether the plaintiff is
asserting his or her own legal rights and interests
rather than the legal rights and interests of third
parties.” Procter & Gamble, 242 F.3d at 560.
The key inquiry for prudential standing in this case is
whether the injury of which plaintiffs complain is “arguably within
the zone of interests to be protected” by the dormant Commerce
Clause, the “constitutional guarantee in question” here. Ass’n of
Data Processing Serv. Orgs., Inc. v. Camp, 90 S. Ct. 827, 830
(1970). See also Boston Stock Exch. v. State Tax Comm’n, 97 S.Ct.
of the reduced volume at the transfer stations would be an increased operating
cost per ton.
13
599, 603 n.3 (1977) (applying the zone of interests test in the
context of the dormant Commerce Clause). The facts of this case
require that we analyze the zone of interest question in two parts:
We must determine whether plaintiffs have standing to challenge the
flow control ordinances as being facially discriminatory against
out-of-state economic interests or whether they can merely
challenge the ordinances as being excessively burdensome to
interstate commerce.
a. Facially Discriminatory
The two-staged analysis for dormant Commerce Clause claims is
instructive as to the relevant zone of interests to be protected.
First, with respect to laws that facially discriminate against out-
of-state economic interests, the dormant Commerce Clauses seeks to
protect against local economic protectionism and retaliation among
the states. C & A Carbone, Inc. v. Town of Clarkstown, N.Y., 114
S. Ct. 1677, 1682 (1994) (“The central rationale for the rule
against discrimination is to prohibit state or municipal laws whose
object is local economic protectionism, laws that would excite
those jealousies and retaliatory measures the Constitution was
designed to prevent.”). In this context, discrimination “simply
means differential treatment of in-state and out-of-state economic
interests that benefits the former and burdens the latter.” Oregon
14
Waste Sys., Inc. v. Dep’t of Envtl. Quality of the State of Or.,
114 S. Ct. 1345, 1350 (1994).
We conclude that plaintiffs’ injury does not fall within the
zone of interests to be protected by the dormant Commerce Clause
with respect to ordinances that are alleged to facially
discriminate against out-of-state economic interests. The flow
control ordinances mandate that any waste generated within the
Region be transported to the Authority’s landfill or transfer
stations. In effect, the ordinances prohibit the export of any
waste outside of the Region, including out of state. However,
these plaintiffs do not ship (and, so far as the record shows, have
never shipped) any waste they collect within the Region to any
location outside of Mississippi, nor do they ship (and, so far as
the record shows, have never shipped) any waste from outside of
Mississippi to the Region. Plaintiffs also have not even alleged
that they have any plans to do so,14 and have not suggested that
some other party currently ships waste from the Region outside of
Mississippi, or has plans to do so, or that any out-of-state waste
processor receives (or has plans to receive) any of the Region’s
waste out of state. In sum, plaintiffs’ injury is not related to
14
Stone County, a Mississippi county that is now within the Authority’s
expanded service area, see supra note 4, has voted to join the Authority, and the
Authority has agreed in principle; however, the required ultimate contract
between the two had not been finalized by the time of the trial. Waste collected
in Stone County by BFI is currently shipped to a landfill in Alabama. As Stone
County has not enacted any flow control ordinance and is not a party to this suit
(and as none of the here challenged ordinances is applicable to waste collected
in Stone County), we will not consider the fact that waste from Stone County is
actually shipped out of state.
15
any out-of-state characteristic of their business.15 Thus,
plaintiffs do not have standing to challenge the ordinances on the
basis of a claim that they are facially discriminatory against out-
of-state interests.16 As such, we express no opinion about whether
the ordinances would pass the facially discriminatory test if
challenged by a proper plaintiff.
15
We also observe that both BFI and Waste Management have their principal
place of business in Mississippi. Nothing in the flow control ordinances turns
on the principal place of business or the place of incorporation or the
citizenship of any generator, disposer or handler of waste (or otherwise).
16
We note that our conclusion that plaintiffs do not meet the prudential
standing requirement differs from that in two opinions from our sister circuits.
See On the Green Apartments LLC v. City of Tacoma, 241 F.3d 1235 (9th Cir. 2001);
Houlton Citizens’ Coalition v. Town of Houlton, 175 F.3d 178 (1st Cir. 1999).
In On the Green and Houlton, the plaintiffs did not allege that they disposed of
their waste out of state or that they had plans to do so. On the Green, 241 F.3d
at 1241–40; Houlton, 175 F.3d at 183. Nevertheless, both the Ninth Circuit and
the First Circuit concluded that the plaintiffs met the prudential standing
requirements.
We disagree with the analysis in this aspect of On the Green and Houlton.
In On the Green, the Ninth Circuit concluded that because the plaintiff alleged
only an intrastate burden, the “Commerce Clause [was] not at all implicated.”
On the Green, 241 F.3d at 1242. We fail to see how the plaintiff’s alleged
injury could even arguably fall within the zone of interests to be protected by
the dormant Commerce Clause when the court concluded that the case did not even
implicate the Commerce Clause. See id. at 1242 (Reavley, J., dissenting).
Further, the Ninth Circuit seems to have confused the redressability requirement
for constitutional standing with the zone of interests test. The Ninth Circuit
concluded that the plaintiff’s injury was “related to the purposes underlying the
Commerce Clause” because the “injury would be remedied if [the plaintiff] could
take its garbage outside the city.” Id. at 1241 (emphasis added). The fact that
an injury would be remedied if the ordinance was struck down does not mean that
the grievance falls within the zone of interests to be protected by the dormant
Commerce Clause, particularly when there was no allegation of any interstate
burden. Under the Ninth Circuit’s rationale in On the Green, the zone of
interest test and the redressability requirement would essentially be the same.
In Houlton, the First Circuit concluded that the plaintiff met the zone of
interests requirement because the plaintiff had “assert[ed] his own economic
interests under the Commerce Clause—a constitutional provision specifically
targeted to project those interests.” Houlton, 175 F.3d at 183. However, the
rationale behind the dormant Commerce Clause is to protect against local economic
protectionism at the expense of out-of-state interests, Carbone, 114 S. Ct. at
1682, not to protect any economic interests. In our opinion, the Houlton court
simply viewed too broadly the zone of interests protected by the dormant Commerce
Clause.
16
b. Burdens Interstate Commerce
We next consider whether plaintiffs nonetheless have standing
to challenge the flow control ordinances on the basis of the claim
that they excessively burden interstate commerce. We conclude that
plaintiffs do meet the zone of interests test in this regard and
thus have standing to challenge the ordinances as to their burden
on interstate commerce.
The protected against injury is an excessive burden on
interstate commerce. An allegation that the plaintiff is involved
in interstate commerce and that the plaintiff’s interstate commerce
is burdened by the ordinance in question is sufficient to satisfy
the zone of interests test with respect to ordinances that
assertedly impose an excessive burden on interstate commerce.
Even though plaintiffs do not ship any garbage collected in
the Region out of state, they are engaged in interstate commerce,
and their interstate commerce is allegedly burdened by the
ordinances. A representative of BFI testified at trial that BFI
had some contracts that are negotiated on a national or an
interstate basis and that such contracts were common. The BFI
representative testified that an effect on the Mississippi portion
of such a contract would ripple to the portion of the contract in
other states.17 Plaintiffs argue that, because the flow control
17
It is not claimed that anything in the contracts requires that any
waste collected within the Region be disposed of outside of the Region. Nor do
the ordinances make any requirement that any waste collected outside the Region
(though under a contract also covering waste collected within the Region) be
17
ordinances will raise their costs to service these national and
regional contracts which include customer locations within the
Region, they will be relatively less competitive within the Region
and that this impact on these contracts will extend to the portion
of the contracts covering customer locations outside of
Mississippi. The ordinances thus allegedly burden plaintiffs’
interstate commerce. Plaintiffs therefore are arguably within the
appropriate zone of interests and, therefore, have standing to
challenge whether the ordinances excessively burden interstate
commerce.18
D. Pike Balancing Test
We now turn to the Pike balancing test to determine whether
the flow control ordinances excessively burden interstate
commerce.19 For this analysis, because plaintiffs do not have
standing to challenge the ordinances as facially discriminatory
disposed of within the Region.
18
A Waste Management representative gave testimony similar to that given
by the BFI representative. He testified that the parent company, Waste
Management, Inc., operated in 48 states and that because of the interrelated
nature of the business, savings achieved on a transaction in one state would
eventually be shared in another stated. Although the representative did not
testify that increased costs in one area would be similarly shared, we assume
arguendo that they would be.
In any event, when one of multiple co-parties raising the same claims and
issues properly has standing, we do not need to verify the independent standing
of the other co-plaintiffs. See Clinton v. City of New York, 118 S. Ct. 2091,
2100 n.19 (1998); Bowsher v. Synar, 106 S. Ct. 3181, 3185 (1986). Therefore,
because we find that BFI has standing to challenge whether the flow control
ordinances excessively burden interstate commerce, we need not further analyze
Waste Management’s independent standing.
19
Because the magistrate judge alternatively held that the ordinances
would not pass even the less rigorous Pike test, we need not remand the case for
the court below to consider the Pike test in the first instance.
18
against out-of-state interests, we ignore the fact that the
ordinances would not permit them to ship waste generated within the
Region out of state.
An “evenhanded” ordinance, i.e., one that does not facially
discriminate against out-of-state interests and only incidentally
affects interstate commerce, will be upheld unless the burden it
imposes on interstate commerce is “clearly excessive in relation to
the putative local benefits” of the ordinance. Pike, 90 S. Ct. at
847. To make this assessment, we consider the nature of the local
interest and whether alternative means could achieve that interest
with less impact on interstate commerce:
“If a legitimate local purpose is found, then the
question becomes one of degree. And the extent of the
burden that will be tolerated will of course depend on
the nature of the local interest involved, and on whether
it could be promoted as well with a lesser impact on
interstate activities.” Id.
We first look for a legitimate public purpose that defendants
intended to advance by implementing flow control. Defendants
indeed have a legitimate local purpose: to ensure the economic
viability of their landfill. See U & I Sanitation v. City of
Columbus, 205 F.3d 1063, 1070 (8th Cir. 2000) (recognizing economic
viability as a legitimate local purpose in the context of a waste
flow control ordinance).
Next, we identify the burden imposed on interstate commerce.
To succeed in a challenge to a regulation under the Pike balancing
test, the challenging party must show that the regulation has “a
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disparate impact on interstate commerce.” Automated Salvage
Transp., Inc. v. Wheelabrator Envtl. Sys., Inc., 155 F.3d 59, 75
(2d Cir. 1998). The “incidental burdens to which Pike refers are
the burdens on interstate commerce that exceed the burdens on
intrastate commerce.” Id. (internal quotation and citation
omitted). “Where a regulation does not have this disparate impact
on interstate commerce, then we must conclude that . . . [it] has
not imposed any incidental burdens on interstate commerce” and,
therefore, that it passes the Pike test. Id. (internal quotation
and citation omitted).
The flow control ordinances here do not have a disparate
impact on interstate commerce; consequently, plaintiffs fail in
their attempt to show that the ordinances do not pass the Pike
test. The only evidence of an interstate burden is the effect on
plaintiffs’ interstate contracts: the flow control ordinances,
because they will raise plaintiffs’ costs within the Region and
will make plaintiffs relatively less competitive, impose a burden
on plaintiffs’ interstate commerce by affecting the portion of
plaintiffs’ interstate contracts that involve areas beyond
Mississippi. The burdens imposed by the ordinances on interstate
commerce, however, are no greater than those imposed on intrastate
commerce. Plaintiffs’ contracts that are wholly within
Mississippi, and even wholly within the Region itself, will also be
affected as plaintiffs’ costs increase within the Region and
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plaintiffs, thereby, become relatively less competitive. In fact,
the burden imposed on wholly intrastate contracts, particularly
those that are contained wholly within the Region, will likely be
greater than that imposed by the flow control ordinances on
plaintiffs’ interstate contracts. The interstate contracts—which
are presumably larger than plaintiffs’ contracts that are contained
entirely within Mississippi or the Region—will likely be more able
to spread the increased costs over a wider base of business than
will plaintiffs’ smaller contracts. We fail to see how the
ordinances will in this respect impose a greater burden on
interstate commerce than they will on intrastate commerce.
Moreover, so far as they affect BFI and Waste Management, the
ordinances do not inhibit the flow of goods (or waste) interstate.
Int’l Truck & Engine Corp. v. Bray, 372 F.3d 717, 727 (5th Cir.
2004) (“A statute imposes a burden when it inhibits the flow of
goods interstate.”). Furthermore, while the ordinances may have
the effect of shifting some business away from plaintiffs, as the
ordinances increase their costs and make them relatively less
competitive, this result does not mean that the ordinances burden
interstate commerce: “[T]he dormant Commerce Clause ‘protects the
interstate market, not particular interstate firms.’” Id. (quoting
Exxon Corp. v. Governor of Md., 98 S. Ct. 2207, 2215 (1978))
(stating that the fact that a regulation might cause truck
purchasers to turn to other competing truck manufacturers did not
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burden interstate commerce). If plaintiffs lose some of their
interstate contracts because of their higher costs within the
Region, the ordinances would not prohibit another garbage collector
from entering into a similar interstate contract, whether that
garbage collector was from Mississippi or some other state.
Because plaintiffs have not shown that the ordinances
disparately impact interstate commerce relative to intrastate
commerce, their Pike challenge that the ordinances excessively
burden interstate commerce fails.
Conclusion
Accordingly, (a) we DISMISS for want of standing plaintiffs’
claim with respect to whether the ordinances facially discriminate
against interstate commerce or out-of-state interests, and (b) with
respect to whether the ordinances otherwise excessively burden
interstate commerce, we REVERSE and RENDER judgment for
defendants.20
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In his opinion the magistrate judge did not reach any conclusion
regarding MISSISSIPPI CODE § 17-17-319(2), the law pursuant to which the Authority
directed its Members to enact flow control ordinances, the judgment does not
speak to § 17-17-319(2) and the parties do not argue that this court need address
its constitutionality. Moreover, as we hold that as to the particular flow
control ordinances here the suit must be dismissed for want of standing with
respect to whether the ordinances are facially discriminatory against interstate
commerce contrary to the dormant Commerce Clause and that those ordinances do not
violate the dormant Commerce Clause with respect to whether they otherwise
excessively burden interstate commerce compared to their putative local benefits,
we need not further address the constitutionality of § 17-17-319.
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