Natl Solid Wastes v. Daviess Cnty KY ( 2006 )


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  •                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit Rule 206
    File Name: 06a0035p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    X
    -
    NATIONAL SOLID WASTES MANAGEMENT
    Plaintiff-Appellee, -
    ASSOCIATION,
    -
    -
    No. 04-6498
    ,
    v.                                          >
    -
    -
    Defendant-Appellant. -
    DAVIESS COUNTY, KENTUCKY,
    -
    N
    Appeal from the United States District Court
    for the Western District of Kentucky at Owensboro.
    No. 04-00031—Joseph H. McKinley, Jr., District Judge.
    Argued: November 29, 2005
    Decided and Filed: January 24, 2006
    Before: CLAY and COOK, Circuit Judges; COOK, District Judge.*
    _________________
    COUNSEL
    ARGUED: Allen W. Holbrook, SULLIVAN, MOUNTJOY, STAINBACK & MILLER,
    Owensboro, Kentucky, for Appellant. Dennis J. Conniff, FROST BROWN TODD, Louisville,
    Kentucky, for Appellee. ON BRIEF: Allen W. Holbrook, SULLIVAN, MOUNTJOY,
    STAINBACK & MILLER, Owensboro, Kentucky, for Appellant. Dennis J. Conniff, Amy D.
    Cubbage, Sheryl G. Snyder, FROST BROWN TODD, Louisville, Kentucky, for Appellee. Michael
    J. Cahill, GERMANO & CAHILL, Holbrook, New York, for Amici Curiae.
    _________________
    OPINION
    _________________
    CLAY, Circuit Judge. Defendant Daviess County, Kentucky appeals the November 19, 2004
    order of the United States District Court for the Western District of Kentucky granting summary
    judgment for Plaintiff National Solid Wastes Management Association (“NSWMA”), declaring
    proposed Daviess County Ordinance 830.5 (“Ordinance”) unconstitutional, and enjoining the
    County from enforcing the terms of the Ordinance. For the reasons set forth below, this Court
    AFFIRMS the district court order.
    *
    The Honorable Julian A. Cook, United States District Judge for the Eastern District of Michigan, sitting by
    designation.
    1
    No. 04-6498           Nat’l Solid Wastes Mgmt. Assoc. v.                                          Page 2
    Daviess County, Kentucky
    I. BACKGROUND
    A.     PROCEDURAL HISTORY
    On March 25, 2004, Plaintiff filed a complaint against Defendant that sought a declaratory
    judgment that the Ordinance was unconstitutional because it violated the dormant Commerce Clause
    and a permanent injunction barring Defendant from enforcing the Ordinance against Plaintiff’s
    members.
    Both parties filed motions for summary judgment.
    On November 19, 2004, the district court granted Plaintiff’s motion for summary judgment,
    denied Defendant’s motion for summary judgment, issued a declaratory judgment that the Ordinance
    was unconstitutional, and issued a permanent injunction barring Defendant from enforcing the terms
    of the Ordinance.
    On December 17, 2004, Defendant timely filed a notice of appeal.
    B.     FACTS
    The facts are not in dispute. Defendant is a county located in Kentucky. Under Kentucky
    law, Defendant is responsible for developing and implementing solid waste management plans for
    the county. 
    Ky. Rev. Stat. Ann. § 109.011
    (9) (West 2005). Pursuant to this responsibility,
    Defendant enacted the Ordinance on February 19, 2004. The Ordinance states, in relevant part:
    1.      Daviess County Fiscal Court shall provide universal municipal solid waste
    collection within its jurisdiction through the grant of nonexclusive franchises.
    2.      All franchise agreements entered into under this ordinance shall require the
    party providing municipal solid waste collection service to dispose of the
    waste they collect at the Daviess County Landfill or Transfer Station.
    3.      Nonexclusive franchises shall be granted to all haulers that are properly
    registered in accordance with KRS 224.43-315(2), have properly filed an
    annual report as required by KRS 224.43-315(3), and are in compliance with
    all other applicable laws and regulations.
    4.      No hauler shall be allowed to collect municipal solid waste in Daviess
    County unless granted a franchise by Daviess County Fiscal Court.
    Plaintiff is a trade association whose members are “engaged in various aspects of solid waste
    management, including the collection, transportation and disposal of municipal solid waste
    generated in Daviess County.” (J.A. at 8.) One of these members is Republic Services of Kentucky,
    LLC (“Republic”). Republic currently conducts business in Daviess County as a waste collector,
    and it disposes of this waste either at Plaintiff’s transfer station or at a Kentucky landfill owned by
    Republic. Plaintiff claims that its members operating within Daviess County as waste collectors
    may need to dispose of waste in the future at out-of-state disposal sites. Plaintiff also claims that
    its members who operate out-of-state waste disposal sites will be unable to participate in the waste
    disposal market for Daviess County.
    No. 04-6498               Nat’l Solid Wastes Mgmt. Assoc. v.                                                     Page 3
    Daviess County, Kentucky
    II. DISCUSSION
    A.       STANDING
    This Court has an independent obligation to determine whether it has subject matter
    jurisdiction over a case, including whether Plaintiff meets the requirements of constitutional and
    prudential standing. In re Cannon, 
    277 F.3d 838
    , 852 (6th Cir. 2002). This Court reviews these
    standing issues de novo. 
    Id.
     (citing Johnson v. Econ. Dev. Corp. of the County of Oakland, 
    241 F.3d 501
    , 507 (6th Cir. 2001)).
    1.       Constitutional Standing
    Under Article III, Plaintiff must demonstrate three components to establish standing: “(1)
    an injury in fact that is actual or threatened; (2) a causal connection between the defendants’ conduct
    and the alleged injury; and (3) a substantial likelihood that the injury will be redressed by a
    favorable decision.” Huish Detergents, Inc. v. Warren County, 
    214 F.3d 707
    , 710 (6th Cir. 2000)
    (citing Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560-61 (1992)).
    We find that Plaintiff has established constitutional standing. With respect to the first
    element, NSWMA members who are waste collectors in Daviess County would be prohibited from
    contracting with less expensive waste disposal sites under the Ordinance; in fact, member Republic,
    a waste collector in the county, also owns a waste disposal facility that it would be unable to use.
    Moreover, NSWMA members who own waste disposal sites cannot contract with waste collectors
    for disposal of solid waste that is generated within Daviess County. Thus, the Ordinance would
    work an actual injury on NSWMA members. With respect to the second element, a causal
    connection exists between Defendant’s conduct and the injury; without the Ordinance, NSWMA
    members would be free to contract to dispose of waste at sites other than the County-owned disposal
    site or transfer station. With respect to the third element, a favorable decision would redress
    Plaintiff’s injury, as an injunction against the enforcement of the Ordinance would allow NSWMA
    members to freely contract for waste disposal services.
    2.       Prudential Standing
    In addition to the Article III requirements, Plaintiff must prove prudential standing;
    specifically, Plaintiff must demonstrate that the interest that it seeks to protect is “‘within the zone
    of interests protected or regulated by the statutory provision or constitutional guarantee invoked in
    the suit.’” 
    Id.
     (quoting Bennett v. Spear, 
    520 U.S. 154
    , 162 (1997)). Here, Plaintiff claims
    Defendant’s Ordinance is in violation of the dormant Commerce Clause. The Supreme Court has
    explained that “[t]he central rationale for the rule against discrimination [under the dormant
    Commerce Clause] 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.” C&A Carbone, Inc. v. Clarkstown, 
    511 U.S. 383
    , 390 (1994).
    We find that Plaintiff has met the prudential standing requirement. This Court has
    specifically held that the1Commerce Clause protects a party’s right to contract with an out-of-state
    waste disposal provider. Huish Detergents, 
    214 F.3d at 711
     (“In making this claim, [the plaintiff]
    1
    The fact that Plaintiff has not shown that waste generated within Daviess County has actually crossed state
    lines is of no import with respect to prudential standing; the Commerce Clause protects the right to contract across state
    lines, not just the actual movement of goods or services across state lines. See Huish Detergents, 
    214 F.3d at 710-11
    .
    While one other circuit has seemingly required such actual movement, see Nat’l Solid Waste Mgmt. Assoc. v. Pine Belt
    Reg’l Solid Waste Mgmt. Auth., 
    389 F.3d 491
    , 498-501 (5th Cir. 2004), the law of this Court recognizes prudential
    No. 04-6498               Nat’l Solid Wastes Mgmt. Assoc. v.                                                      Page 4
    Daviess County, Kentucky
    is asserting its individual right . . . to purchase waste processing and disposal services across State
    boundaries, an interest that falls squarely within the zone of interests protected by the Commerce
    Clause.”)
    B.       THE DISTRICT COURT DID NOT ERR WHEN IT FOUND THAT THE
    ORDINANCE WAS FACIALLY DISCRIMINATORY AGAINST INTERSTATE
    COMMERCE
    1.       Standard of Review
    This Court reviews the district court’s grant of summary judgment de novo. Odle v. Decatur
    County, 
    421 F.3d 386
    , 389 (6th Cir. 2005) (citation omitted). The moving party must 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). The Court “must view all the facts and the inferences
    drawn therefrom in the light most favorable to the nonmoving party.” Cummings v. City of Akron,
    
    418 F.3d 676
    , 682 (6th Cir. 2005) (internal quotations and citation omitted).
    2.       Analysis
    The district court did not err when it found that the Ordinance was facially discriminatory
    against interstate commerce. The Ordinance, in practical terms, is no different than other local laws
    struck down by the Supreme Court and this Court as unconstitutional.
    a.        Legal Framework
    The United States Constitution gives Congress the power to “regulate Commerce . . . among
    the several States.” U.S. Const. art. I, § 8, cl. 3. While the Constitution does not directly speak to
    the states’ power to regulate commerce amongst themselves, the Supreme Court has long interpreted
    the Constitution as not only granting power to Congress to regulate interstate commerce, but also
    denying that same power to the states. See generally Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 (1824);
    H.P. Hood & Sons v. Du Mond, 
    336 U.S. 525
     (1949). As a result, this “dormant” Commerce Clause
    “limits the actions of municipalities . . . where such actions ‘burden interstate commerce or impede
    its free flow.’”2 Waste Mgmt., Inc. v. Metro. Gov’t, 
    130 F.3d 731
    , 735 (6th Cir. 1997) (quoting
    Carbone, 
    511 U.S. at 389
    ).
    By its nature, the dormant Commerce Clause only disallows local regulation of interstate
    commerce. If a local government action is market participation, as opposed to market regulation,
    then the action is not barred by the dormant Commerce Clause. Huish Detergents, 
    214 F.3d at 714
    .
    We agree with the Second Circuit that the proper inquiry to determine if a local government is
    engaged in market regulation is if “it exercises governmental powers that are unavailable to private
    parties. . . . Classic hallmarks of government regulation include the threatened imposition of fines
    and/or jail terms to compel behavior.” United Haulers Assoc., Inc. v. Oneida-Herkimer Solid Waste
    Mgmt. Auth., 
    261 F.3d 245
    , 255 (2d Cir. 2001) (citation omitted).
    standing where the plaintiff seeks to protect its right to contract for or purchase out-of-state goods or services.
    2
    The dormant Commerce Clause must still be considered even in cases where there is a substantial local
    interest, as explained infra. Amici spend the majority of their brief extolling the virtues of flow control regulations in
    today’s complex waste management landscape; however, the practicality of a regulation is hardly sufficient to correct
    its unconstitutional nature. Furthermore, if amici believe that the dormant Commerce Clause should not apply in the
    waste management context, amici need not endure the burden of constitutional amendment to achieve their ends; they
    can simply petition Congress, as Congress may approve of state and local regulations of interstate commerce.
    No. 04-6498           Nat’l Solid Wastes Mgmt. Assoc. v.                                       Page 5
    Daviess County, Kentucky
    If the local government meets this threshold inquiry and is engaged in regulation of interstate
    commerce, then the Court must determine whether the regulation discriminates against interstate
    commerce, or whether it “regulates evenhandedly.” Huish Detergents, 
    214 F.3d at 712-13
    . “If an
    ordinance discriminates against interstate commerce by treating in-state and out-of-state interests
    differently, benefitting the former and burdening the latter, it is per se invalid unless the State has
    ‘no other means to advance a legitimate local interest.’” 
    Id.
     (quoting Carbone, 
    511 U.S. at 392
    ).
    “On the other hand, if the law regulates evenhandedly, it will be upheld unless the burden it imposes
    on interstate commerce is ‘clearly excessive in relation to the putative local benefits.’” Id. at 713
    (quoting Carbone, 
    511 U.S. at 390
    .) This is known as the Pike balancing test. See Pike v. Bruce
    Church, Inc., 
    397 U.S. 137
    , 142 (1970).
    With this framework in mind, this Court addresses three relevant waste management cases.
    In C&A Carbone v. Clarkstown, the Supreme Court addressed the constitutionality of a town
    ordinance. There, the town of Clarkstown decided to build a waste transfer station, as it closed its
    local landfill in cooperation with the State of New York. 
    511 U.S. at 387
    . The transfer station’s
    purpose was to receive bulk solid waste, separate the waste between recyclable and nonrecyclable
    waste, and process these two types of waste for transport to the appropriate ultimate disposal
    destinations. 
    Id.
    The town hired a private contractor to build the transfer station. 
    Id.
     Instead of paying for
    the transfer station with municipal funds, the town gave the private contractor the right to operate
    the station for five years. 
    Id.
     At the end of the five years, the private contractor would sell the
    transfer station to the town for a nominal amount. 
    Id.
     The town also guaranteed a minimum waste
    flow of 120,000 tons, and the town authorized the private contractor to charge a “tipping fee” of $81
    per ton. 
    Id.
     If the actual waste flow was less than 120,000 tons, the town would pay for the
    difference in revenues. 
    Id.
    In order to make good on its guarantee to the private contractor, the town passed an
    ordinance that required all nonhazardous solid waste from the town to be brought for processing to
    the transfer station. 
    Id.
     The plaintiff, a recycling center in the town, brought suit. 
    Id. at 387-88
    .
    The Supreme Court found that the ordinance was unconstitutional. The Court held that the
    ordinance discriminated against interstate commerce, because “[i]t hoard[ed] solid waste, and the
    demand to get rid of it, for the benefit of the preferred processing facility.” 
    Id. at 392
    . In other
    words, without the ordinance, waste collectors would be free to take the waste to any number of
    transfer and disposal sites, including out-of-state sites. The ordinance thus “deprive[d] out-of-state
    businesses of access to a local market.” 
    Id. at 389
    . The court found that the case did not fall into
    a narrow exception “in which the municipality can demonstrate, under rigorous scrutiny, that it has
    no other means to advance a legitimate local interest.” 
    Id. at 392
    .
    In Waste Mgmt., Inc., this Court followed the Supreme Court’s lead in Carbone. There, the
    county enacted a “flow-control” regulation that required, among other things, that all residential
    waste collected within the county be disposed of at a “waste-to-energy” facility owned by the
    county. 
    130 F.3d at 733
    . This Court found Carbone to be directly on point and held that the
    regulation discriminated against interstate commerce, and that the county could have engaged in
    alternative, nondiscriminatory actions to meet its proffered local concerns. 
    Id. at 736
    .
    In Huish Detergents, Inc. v. Warren County, the Court had a second opportunity to address
    a flow-control regulation. There, the county solicited competitive bids for the collection and
    processing of all municipal solid waste in Bowling Green, Kentucky. 
    214 F.3d at 708
    . Under the
    agreement, the contractor would have the exclusive right to collect solid waste for five years. 
    Id.
    The city would not directly pay the contractor; instead, all entities generating solid waste were
    No. 04-6498               Nat’l Solid Wastes Mgmt. Assoc. v.                                                    Page 6
    Daviess County, Kentucky
    required to use the contractor, and the contractor would collect its payment from these customers.
    The contractor was required to operate the city’s transfer station and process all of the solid waste
    collected at the transfer station. 
    Id. at 708-09
    . Finally, the contractor was required to dispose of all
    waste at a landfill approved and permitted by the state, “effectively prohibiting the use of out-of-
    state disposal sites.” 
    Id. at 709
    . After selecting the contractor, the county passed an ordinance that
    executed the agreement. 
    Id.
    This Court found the ordinance to be unconstitutional. With respect to the requirement that
    the contractor process all of the solid waste at the transfer station, the Court rejected the defendant’s
    market participation argument. The defendant argued that because it was a market participant in that
    it was procuring waste collection services for one of its cities, it was exempt from the strictures of
    the dormant Commerce Clause, and could thus force the contractor to use a single transfer station.
    
    Id. at 715
    . This Court disagreed and ruled that the county was neither purchasing nor selling
    products or services. Instead, it was forcing all of the inhabitants of a city to purchase services from
    a contractor, a power that “far exceeded that which a private entity could accomplish on the free
    market.” 
    Id. at 716
    . Disposing of the defendant’s market participation argument, the Court then
    ruled that the ordinance was the “functional equivalent” as the one in Carbone, in that it required
    processing services at the city’s transfer station and “nowhere else.” 
    Id.
     The ordinance thus
    discriminated against interstate commerce; the Court further found that the ordinance did not fall
    into the narrow exception based on local interests. 
    Id.
    With respect to the requirement that the contractor dispose of the solid waste at an in-state
    site, the Court found that Carbone was equally applicable; the ordinance “violated the Commerce
    Clause by prohibiting out-of-state disposal.” 
    Id. at 716
    . Interestingly, the Court stated in dicta that
    even if the defendant were a market participant with respect to the collection or processing of waste,
    it could not regulate the downstream market of waste disposal.3 
    Id.
    Lastly, the Court readdressed the defendant’s market participation argument. The Court
    found that had the defendant actually purchased the contractor’s services with its own funds, it could
    have avoided scrutiny under the dormant Commerce Clause. 
    Id. at 717
    . But by deciding to regulate
    the market, by forcing city residents to purchase the contractor’s services, instead of participating
    in the market, the defendant “opened itself up” to such scrutiny. 
    Id.
     Moreover, the fact that the
    defendant could have acted as a market participant to achieve the same ends did not save its ultimate
    decision to regulate the market in violation of the dormant Commerce Clause. 
    Id.
     (quoting South-
    Central Timber Dev., Inc. v. Wunnicke, 
    467 U.S. 82
    , 98-99 (1984) (plurality opinion)).
    b.       Application to This Case
    The three cases cited above leave little doubt that the Ordinance in this case discriminates
    against interstate commerce. By forcing Plaintiff’s members to use Defendant’s disposal and
    transfer facilities, the Ordinance would prohibit these members from using other in-state and out-of-
    state facilities. The Ordinance is thus facially discriminatory against out-of-state interests.4
    3
    We agree that the defendant could not regulate the waste disposal market if it were only a market participant
    in the waste collection or processing markets; however, it could make a decision as a market participant that would
    duplicate the results of regulation. For example, if the defendant operated the transfer station as a market participant,
    it could choose where it ultimately disposed of the waste, such as an in-state disposal site.
    4
    Defendant does not argue that it has no other means to advance a local interest; it only argues that the
    Ordinance is nondiscriminatory.
    No. 04-6498           Nat’l Solid Wastes Mgmt. Assoc. v.                                        Page 7
    Daviess County, Kentucky
    In response, Defendant makes a strange argument: “[Defendant] contends that its Ordinance
    affects both in-state and out-of-state entities the same. All haulers of solid waste that is generated
    in Daviess County must deposit waste in Daviess County’s publicly owned landfill.” (Def.’s Br.
    15.) As Plaintiff points out, there is a difference between the market for waste collection and for
    waste disposal. We agree that the Ordinance does not discriminate against out-of-state waste
    collectors; however, that is not the point. The Ordinance discriminates against out-of-state waste
    disposal facilities, and this is dispositive with respect to this issue.
    Defendant’s argument that the Ordinance does not create a “bottleneck” also lacks merit.
    Defendant attempts to distinguish Carbone in that Carbone involved a waste transfer station, and
    the Ordinance here involves a waste disposal facility. Defendant’s contention is that “[w]hen solid
    waste is delivered to a landfill for disposal, it is no longer in the stream of commerce.” (Def.’s Br.
    17.) This argument fails for two reasons. First, this Court has already held that Carbone applies to
    waste disposal facilities. See Waste Mgmt., 
    130 F.3d at 736
    ; Huish Detergents, 
    214 F.3d at 716
    .
    Second, Carbone is as applicable to disposal facilities as it is to transfer stations because “what
    makes garbage a profitable business is not its own worth but the fact that its possessor must pay to
    get rid of it. In other words, the article of commerce is not so much the solid waste itself, but rather
    the service of processing and disposing of it.” Carbone, 
    511 U.S. at 390-91
    . In other words, the
    focus is not on the actual waste and its location in the steam of commerce; the focus is on the
    attendant services and whether the Ordinance constricts the open channels of commerce to these
    services. Here, the Ordinance does exactly that: by requiring disposal at Defendant’s facility, out-
    of-state disposal service providers are shut out of the disposal market for waste generated in Daviess
    County.
    Defendant’s citations to purportedly analogous case law are likewise unconvincing and merit
    only a brief response. Defendant cites to Maharg, Inc. v. Van Wert Solid Waste Mgmt. Dist. for the
    proposition that the Ordinance is facially neutral. In that case, Ohio law authorized the county waste
    management board to make “facility designations.” 
    249 F.3d 544
    , 547 (6th Cir. 2001). This
    authorization “allow[ed] the board to ‘designate solid waste disposal, transfer, or resource recovery
    facilities . . . where solid wastes generated within or transported into the district shall be taken for
    disposal.’” 
    Id.
     (quoting 
    Ohio Rev. Code Ann. § 343.014
    (A)). Van Wert County then adopted a
    resolution whereby it solicited bids from in-state and out-of-state waste facilities to become
    “designated” facilities. 
    Id.
    This Court upheld the resolution because it was not “territorially based,” as the bidding
    process was equally open to in-state and out-of-state waste facilities. 
    Id. at 551
    . The Ordinance in
    this case does not open the waste disposal market equally to in-state and out-of-state interests; it
    closes the market to all except Defendant’s waste disposal facility. Thus, there is not even a remote
    analogy to be drawn between Maharg and the instant case.
    Eastern Kentucky Res. v. Fiscal Court of Magoffin County is also inapposite. There, this
    Court upheld Kentucky statutes that required local governments to create solid waste management
    plans for municipal solid waste and to identify any additional capacity for “out-of-area” solid waste.
    
    127 F.3d 532
    , 541 (6th Cir. 1997) (quoting 
    Ky. Rev. Stat. Ann. § 224.43-345
    (1)(l)). The Court
    found that although the statute distinguished between in-area and out-of-area waste, the statute did
    not provide for different treatment between the two categories. 
    Id.
     In this case, there is an absolute
    difference in treatment; the Ordinance completely disallows out-of-state waste disposal services.
    Finally, Defendant relies on the district court case of Nat’l Solid Wastes Mgmt. Assoc. v.
    Granholm. There, the plaintiff contested the legality of a set of Michigan statutes that created
    disposal requirements for Michigan landfills. 
    344 F. Supp. 2d 559
    , 563-64 (E.D. Mich. 2004).
    Under the statutes, solid waste generated in Michigan automatically qualified for disposal in
    No. 04-6498           Nat’l Solid Wastes Mgmt. Assoc. v.                                        Page 8
    Daviess County, Kentucky
    Michigan landfills, whereas solid waste generated in other states did not automatically qualify, but
    instead required additional procedures. 
    Id.
     The district court found that the statutes “contain no
    overt distinctions between in-state and out-of-state waste, nor do they expressly bar the entry of out-
    of-state waste into Michigan;” as a result, the statutes were facially neutral. 
    Id. at 566
    . The
    Ordinance in this case, on the other hand, expressly bars out-of-state waste disposal providers from
    the Daviess County waste disposal market.
    C.      THE DISTRICT COURT DID NOT ERR WHEN IT FOUND THAT DEFENDANT
    DID NOT ELIMINATE THE DISPOSAL MARKET FOR SOLID WASTE
    1.     Standard of Review
    The standard of review for the district court’s grant of summary judgment is set out above.
    2.     Analysis
    a.      Legal Framework
    Defendant’s argument with respect to this issue centers entirely around the Second Circuit
    case of USA Recycling, Inc. v. Town of Babylon. In that case, the town built an incinerator as a
    waste disposal facility. 
    66 F.3d 1272
    , 1277 (2d Cir. 1995). The town raised funds via local bonds
    and hired a private contractor to build the incinerator. 
    Id.
     The private contractor then leased the
    incinerator from the town, and the town paid the private contractor to operate the facility. 
    Id.
    Originally, the town passed a flow control ordinance that required all solid waste collected
    from the town to be disposed of at the town incinerator. 
    Id. at 1278
    . In the wake of Carbone, the
    constitutionality of that practice was in great doubt. 
    Id.
     In response, the town decided to purchase
    commercial waste collection services from one provider by utilizing a competitive bidding
    procedure open to in-state and out-of-state waste collection service providers. 
    Id. at 1278-79
    . The
    key fact is that the town paid for the waste collection services itself; it did not force its commercial
    residents to purchase the services from the winning bidder. 
    Id.
     The town passed on the cost by
    assessing an “annual benefit assessment” against each benefitted commercial parcel. 
    Id.
    In conjunction with this new policy for waste collection, the town also allowed the waste
    collector to dispose of 96,000 tons of solid waste per year at the incinerator for no charge. 
    Id.
     If the
    waste collector disposed of more than this amount at the incinerator, the waste collector would be
    forced to pay the market rate at the incinerator for waste beyond this amount. 
    Id.
     The contract also
    had a provision that gave the town the right to direct the waste collector to the disposal site of its
    own choice, but then the town would have to pay the disposal fee. 
    Id.
    The plaintiffs filed suit against the town, challenging both the waste collection and the waste
    disposal provisions of the contract. 
    Id.
    With respect to the waste collection aspect of the contract, the Second Circuit found that the
    town acted both as a market participant, as it purchased waste collection services, and as a market
    regulator, as it prevented any other entity from providing waste collection services other than the
    single contractor selected. 
    Id. at 1282
    . Because the town effectively entered into regulation of the
    waste collection market, the court undertook the dormant Commerce Clause analysis.
    The court found that the contract did not discriminate against interstate commerce. It found
    that:
    No. 04-6498           Nat’l Solid Wastes Mgmt. Assoc. v.                                          Page 9
    Daviess County, Kentucky
    No one enjoys a monopoly position selling garbage collection services in Babylon’s
    commercial garbage market, because the Town has eliminated the market entirely.
    Not even the Town itself remains as a seller in the market. Although the Town is
    now the lone provider of garbage collection services in the District, it does so as a
    local government providing services to those within its jurisdiction, not as a business
    selling to a captive customer case. . . . In Babylon, local businesses do not buy
    services from anyone. . . . Although taxpayers in the District ultimately foot the bill
    for these garbage services–just as they foot the bill for street sweeping, street
    lighting, sewage treatment, public schools, and police and fire protection, to name
    just a few other basic services provided by local governments–the payment of taxes
    in return for municipal services is not comparable to a forced business transaction
    . . . . In short, because Babylon is not selling anything, it cannot be considered to be
    a favored single local proprietor as in Carbone.
    
    Id. at 1283
     (emphasis supplied). Instead of forcing its commercial residents to purchase waste
    collection services from a single provider, the town eliminated the market in the sense that the
    commercial residents no longer purchased waste collection services, and waste collection service
    providers no longer sold these services to the commercial residents. The town paid for the service
    itself, and then passed the cost on to its commercial residents.
    With respect to the waste disposal aspect of the contract, the court found that the town could
    legally offer free disposal services to its selected waste collection provider, because it was a market
    participant. The town owned the incinerator; moreover, it paid a private contractor to operate the
    incinerator; in essence, the town had “exclusive rights to dispose of waste [at the incinerator].” 
    Id. at 1288-89
    . As the court viewed the situation,
    [t]he Town may exercise [its waste disposal] rights as it sees fit. It could sell those
    rights on the open market. . . . Instead, the Town has chosen to give away those
    rights for free, to dispose of garbage generated by town businesses. Babylon’s
    decision . . . therefore constitutes municipal participation in the waste disposal
    market.
    
    Id. at 1289
    .
    b.      Application to This Case
    Babylon is in diametric opposition to the facts presented in this case. Defendant claims that,
    like the contract in Babylon, the Ordinance would merely “eliminate[ ] the market for solid waste
    disposal.” (Def.’s Br. 24.) Despite Defendant’s contention otherwise, the market for solid waste
    disposal would continue to exist in Daviess County under the Ordinance, and Defendant would have
    a monopoly on that market. Here, Defendant would be forcing waste collectors to purchase its waste
    disposal services; Defendant would remain as the lone seller in this market as a result of its
    regulation. A market is where a seller sells goods or services, and a buyer buys goods or services.
    In Babylon, the contract between the town and the private contractor eliminated the waste collection
    market because the waste collectors no longer sold their services to commercial residents, and
    commercial residents no longer purchased these services from the waste collectors. Instead, the
    town purchased these services and provided them for the benefit of its commercial residents, just
    as with countless other government benefits.
    In this case, waste collectors would be purchasing waste disposal services from Defendant
    under the Ordinance, and Defendant would be selling waste disposal services to waste collectors.
    No. 04-6498                Nat’l Solid Wastes Mgmt. Assoc. v.                                                     Page 10
    Daviess County, Kentucky
    Thus, the proposition that the Ordinance would eliminate the market is absurd. The Ordinance
    would not eliminate the market; instead, it would make Defendant the only player in the market.
    The waste disposal analogue to the waste collection system in Babylon would be if
    Defendant’s waste disposal facility charged nothing for the disposal of waste generated within
    Daviess County, and then passed this cost on to its residents via taxes. If this were the case, then
    there would be no sale or purchase of waste disposal services, and thus there would be no market.
    If this were the case, then the system would not discriminate against interstate         commerce.
    Unfortunately, this is not the system that would be implemented by the Ordinance.5
    Defendant relies on Harvey & Harvey Inc. v. County of Chester and Houlton Citizens’
    Coalition v. Town of Houlton for the proposition that a municipality could eliminate the market for
    waste services. Both cases are examples where the court endorsed the principle that a municipality’s
    selection of a waste service provider (be it collection or disposal) does not run afoul of the dormant
    Commerce Clause if the selection process was open to in-state and out-of-state contractors, a process
    that was obviously different from the unilateral selection of Defendant’s landfill as the sole waste
    disposal provider in this case. Harvey & Harvey, 
    68 F.3d 788
    , 802 (3d Cir. 1995) (waste disposal);
    Houlton, 
    175 F.3d 178
    , 188 (1st Cir. 1999) (waste collection and processing). Furthermore, neither
    of these cases turned on the elimination of a market: Harvey & Harvey is a case where the
    municipality designated waste disposal sites; it did not purchase waste disposal services on behalf
    of its citizens, so no market elimination occurred. 
    68 F.3d at 794-95
    . Houlton is a case where the
    municipality did purchase waste collection and processing services on behalf of its citizens;
    however, the First Circuit explicitly decided not to base its decision on the market elimination
    analysis of Babylon; instead, the court found that because the selection process for a waste collector
    and processor was competitive and open to out-of-state businesses, the measure was valid under the
    Commerce Clause. 
    175 F.3d at 187-89
    . These two cases do not support Defendant’s position that
    the Ordinance would merely eliminate the waste disposal market in Daviess County.
    D.       THIS COURT DECLINES TO ADOPT THE SECOND CIRCUIT’S PUBLIC-
    PRIVATE OWNERSHIP DISTINCTION WITH RESPECT TO THE DORMANT
    COMMERCE CLAUSE
    1.        Standard of Review
    The standard of review for the district court’s grant of summary judgment is set out above.
    2.        Analysis
    a.       Legal Framework
    In United Haulers Assoc., Inc. v. Oneida-Herkimer Solid Waste Mgmt. Authority, the Second
    Circuit examined the constitutionality of a county ordinance that required waste collectors to dispose
    of solid waste at approved processing sites designated by the county. 
    261 F.3d 245
    , 249-50 (2d Cir.
    2001). The county owned all of the designated processing sites. 
    Id. at 250
    .
    5
    Defendant seems to place weight in the fact that it “purchased” the Daviess County landfill in that it invested
    public funds in its construction. Defendant then attempts to analogize this purchase to the purchase of disposal services
    made by the town in Babylon. This Court agrees that Defendant is a market participant in the sense that it operates the
    County landfill; however, this is irrelevant. The operation of the landfill is not the concern; the concern is the regulatory
    behavior as prescribed in the Ordinance that requires waste collectors to purchase the landfill’s services. Unlike the town
    of Babylon, Defendant would not be acting only as a market participant; it would also be regulating the waste disposal
    market to benefit its participation.
    No. 04-6498           Nat’l Solid Wastes Mgmt. Assoc. v.                                      Page 11
    Daviess County, Kentucky
    In a surprising decision, the Second Circuit found that the ordinance did not discriminate
    against interstate commerce. The court drew a distinction between private ownership and public
    ownership: in a case where the regulation benefits a facility owned by the municipality, the
    regulation is nondiscriminatory. 
    Id. at 263
    . The court based its decision first on the language of
    Carbone. The court noted that the facility in Carbone was privately owned. 
    Id. at 259
    . The court
    also pointed to language that local governments “‘may not use their regulatory power to favor local
    enterprise.’” 
    Id. at 258-59
     (quoting Carbone, 
    511 U.S. at 394
    ) (emphasis in the original).
    Moreover, the court characterized the struggle between the majority, concurrence, and dissent in
    Carbone as one that wrestled with the question of “whether the favored facility was public or
    private.” Id. at 259 (emphasis in the original). The concurrence and the dissent viewed the facility
    in Carbone as one that was publicly owned, so it was nondiscriminatory in that it discriminated
    equally against in-state and out-of-state facilities; the concurrence and the dissent then analyzed the
    regulation under the Pike balancing test. Id. (citing Carbone, 
    511 U.S. at 402-03
     (O’Connor, J.,
    concurring); 
    511 U.S. at 410-30
     (Souter, J., dissenting)).
    The court then examined the language of other dormant Commerce Clause cases, and it
    found that those cases were primarily concerned with the protection of local businesses at the
    expense of out-of-state businesses. Id. at 260-61.
    The court found that, from a policy perspective, a local regulation that favored a local
    municipality, as opposed to local businesses, was less likely to be protectionist, and was less likely
    to engender negative reaction from neighboring areas. Id. at 261.
    Having found that the ordinance did not discriminate against interstate commerce, the court
    remanded the case to the district court to conduct the Pike balancing. Id. at 263-64.
    b.      Application to This Case
    This Court has already found dormant Commerce Clause violations in cases where the
    facility was publicly owned. See Waste Mgmt., 
    130 F.3d at 736
    ; Huish Detergents, 
    214 F.3d at 716
    .
    Those cases did not directly address the public-private ownership issue raised by United Haulers;
    however, an adoption by this Court of the public-private ownership distinction, as suggested by
    Defendant and amici, would amount to the overturning of our prior decisions, as a necessary
    implication of those decisions was that public ownership did not change the dormant Commerce
    Clause inquiry. This Court does not have the ability to take such action. See LRL Properties v.
    Portage Metro Hous. Auth., 
    55 F.3d 1097
    , 1105 n.2 (6th Cir. 1995) (“It is well-settled law of this
    Circuit that a panel of this Court cannot overrule the decision of another panel.” (internal quotations
    and citation omitted)).
    Moreover, this Court respectfully disagrees with the Second Circuit on the proposition that
    Carbone lends support for the public-private distinction drawn by that court. For every sentence in
    the decision that can be interpreted as supporting such a distinction, there is a sentence that can be
    interpreted in opposition. For example, the Court focused on the fact that “the ordinance prevents
    everyone except the favored local operator from performing the initial processing step. The
    ordinance thus deprives out-of-state businesses of access to a local market.” Carbone, 
    511 U.S. at 390
     (emphasis supplied). There, the focus of the court was on the harm to out-of-state businesses
    and the local market, as opposed to the benefit conferred to the local provider. Importantly, this
    harm would occur regardless of who owned the benefitted facility. In further support that the focus
    of the dormant Commerce Clause inquiry was on the economic harm to out-of-state actors and the
    local market, the Court stated, “The essential vice in laws of this sort is that they bar the import of
    the processing service.” 
    Id. at 392
     (emphasis supplied). In other words, the crux of the inquiry is
    No. 04-6498               Nat’l Solid Wastes Mgmt. Assoc. v.                                                     Page 12
    Daviess County, Kentucky
    whether the local ordinance burdens interstate commerce, not whether the local entity benefitted by
    the ordinance is publicly owned.
    Even in the language of the United Haulers decision itself, the court recognized this focus
    on the effects on foreign businesses by isolating the local market:
    Our system, fostered by the Commerce Clause, is that every farmer and craftsmen
    shall be encouraged to produce by the certainty that he will have free access to every
    market in the Nation, that no home embargoes will withhold his exports, and no
    foreign state will by customs duties or regulations exclude them.
    United Haulers, 262 F.3d at 254 (quoting H.P. Hood & Sons, 
    336 U.S. at 539
    ). Free access for out-
    of-state businesses to the local market is “the rationale underlying the judicially created dormant
    Commerce Clause.” 
    Id.
    In our view, the Second Circuit placed too much importance on phrases like “rival
    businesses” and “local enterprise” as used by the Carbone Court. See id. at 258-59. A municipality
    can be considered a local business in competition with out-of-state businesses, and a municipality
    can participate in local enterprise. While the Supreme Court expressed concerns of aiding local
    enterprise at the expense of rival businesses,   these concerns remain regardless of whether the
    municipality owns the favored business.6
    This fact is implicit in the Carbone decision. We disagree with the Second Circuit that the
    point of contention in Carbone between the majority on the one hand, and the concurrence and the
    dissent on the other, was whether the waste transfer facility was public or private. Both the
    concurrence and the dissent agreed that because the waste transfer facility was publicly owned, it
    treated all other businesses, in-state and out-of-state, equally. See supra. The analysis of four
    Justices thus turned on the public-private distinction relied on by the Second Circuit; however, the
    majority’s7 decision was not based on the categorization of the waste transfer facility as a private
    business.
    6
    The Second Circuit also placed stock in the Supreme Court’s use of the phrase “single local proprietor” in
    Carbone to support its public-private ownership distinction. Id. at 258. We fail to see the logical connection; a
    proprietor is defined simply as “[a]n owner, esp. one who runs a business.” Black’s Law Dictionary 1236 (7th ed. 1999).
    There is absolutely no denotation that a proprietor can only be a private entity. Moreover, when the Supreme Court
    spoke of the “single local proprietor,” its focus was on the harm to out-of-state competition:
    The only conceivable distinction from [the cited dormant Commerce Clause cases] is that the flow
    control ordinance favors a single local provider. But this difference just makes the protectionist effect
    of the ordinance more acute. In Dean Milk, the local processing requirement at least permitted
    pasteurizers within five miles of the city to compete. An out-of-state pastuerizer who wanted access
    to that market might have built a pasteurizing facility within the radius. The flow control ordinance
    at issue here squelches competition in the waste-processing service altogether, leaving no room for
    investment from outside.
    Carbone, 
    511 U.S. at 392
    . The Supreme Court’s concern about squelching competition altogether, leaving no room for
    outside investment, exists in the present case under the Ordinance; the fact that Defendant would be the single local
    proprietor does not in any way mitigate this explicit harm.
    7
    The Second Circuit considered it unclear whether the Carbone majority “either rejected or accepted the
    public/private distinction.” United Haulers, 
    261 F.3d at 260
    . But not even the Carbone dissent was willing to adopt
    this view, though it had every incentive to do so. Had the dissent thought it plausible to read the majority’s reasoning
    as consistent with the public-private distinction, it never would have characterized the majority as rejecting the
    distinction outright. See Carbone, 
    511 U.S. at 420
     (Souter, J., dissenting) (“The majority ignores this distinction between
    public and private enterprise.”). The dissent thought that the public nature of the favored transfer facility rendered the
    No. 04-6498                Nat’l Solid Wastes Mgmt. Assoc. v.                                                    Page 13
    Daviess County, Kentucky
    From the facts of Carbone, the waste transfer facility was quite clearly owned in fact by the
    municipality. Though possessed and operated by the private contractor who built the facility for the
    first five years of operation, the entire arrangement between the county and the private contractor
    dealt only with the form of payment to the private contractor for building the transfer station for the
    town; there was no real doubt as to who actually owned the facility. Contrary to the declaration of
    the Second Circuit, the Supreme Court did not “repeatedly reference[ ] the private nature of the
    favored facility,” id. at 258; in fact, the Court stated, “The object of this arrangement was to
    amortize the cost of the transfer station: The town would finance its new facility with the income
    generated by the tipping fees.” Carbone, 
    511 U.S. at 387
     (emphasis supplied). At most, the private
    contractor was an agent of the town, collecting tipping fees on behalf of the town and then applying
    these fees to the construction costs that were not directly charged to the town because of the
    agreement.
    Other language denoted an understanding by the majority that the facility was publicly
    owned: the Court’s characterization of the “town-sponsored facility,” the fact that “the flow control
    ordinance is a financing measure,” the reference to the facility as “its [i.e., the town’s] project.” 
    Id. at 393-94
    . The majority did not find that the ordinance discriminated against interstate commerce
    because the waste transfer facility was privately owned, and we find that the Supreme Court
    implicitly rejected the public-private distinction.
    The Second Circuit’s interpretation of other dormant Commerce Clause cases was similarly
    strained. We assume the truth of the statement that “[t]he common thread in the Court’s dormant
    Commerce Clause jurisprudence . . . is that a local law discriminates against interstate commerce
    when it hoards local resources in a manner that favors local business, industry or investment over
    out-of-state competition.” United Haulers, 
    261 F.3d at 261
    . But again, Daviess County is acting
    as a local business in the local industry of waste disposal. Not to belabor the point, but under the
    Ordinance, Defendant would be acting in a dual role: as a local business selling waste disposal
    services, and as a local government hoarding “waste, and the demand to get rid of it, for the benefit”
    of this business. Carbone, 
    511 U.S. at 392
    . The fact that Defendant acts as both a business and a
    government, as opposed to just a government, does not cloak its facially protectionist activity from
    the appropriate scrutiny under the Commerce Clause.
    III. CONCLUSION
    For the foregoing reasons, we AFFIRM the district court’s order.
    ordinance to be non-discriminatory; it thus considered the public-private distinction of constitutional import. It makes
    no sense to suggest that the dissent, rather than characterizing the majority’s holding narrowly, as concerning only private
    entities, would have broadened the majority’s holding to reject a distinction that it itself advocated.