Appendix — National Solid Waste Management Ass'n v. Pine Belt Regional Solid Waste Management Authority

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APPENDIX A

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT.

NATIONAL SOLID WASTE MANAGEMENT

ASSOCIATION; ET AL., PLAINTIFFS,

NATIONAL SOLID WASTE MANAGEMENT ASSOCIA-

TION; BF WASTE SYSTEMS, BFI WASTE SYSTEMS

OF MISSISSIPPI LLC; WASTE MANAGEMENT OF

MISSISSIPPI INC., PLAINTIFFS-APPELLEES,

Vv.

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.

NO. 03-60470.

OCT. 29, 2004.

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 re-

quiring 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 As-

sociation (NSWMA), BFI Waste Systems of Mississippi,

LLC (BFI), and Waste Management of Mississippi, Inc.

(Waste Management) (collectively, plaintiffs), filed this suit

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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 un-

der the dormant Commerce Clause and enjoining their en-

forcement. 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 de-

velop an environmentally-sensitive and cost-effective pro-

gram for the 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 construc-

tion 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. Propos-

als were to be given for two options: 1) to own, design, per-

mit, build, and operate the landfill for thirty years or 2) to

equip and operate the landfill for seven years, with the Au-

thority building and owning the landfill. The RFP included

an estimated volume of disposable solid waste that would be

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generated in the geographic area comprised by the Members!

and a statement that “[u]pon request, the Authority will re-

quire 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 [Au-

thority’s landfill].” Five proposals were received, including

from BFI and Waste Management. Enviro, a company head-

quartered in Laurel, Mississippi, submitted the lowest bid for

Option 2, but did not submit a bid for Option 1. The Author-

ity analyzed the bids, decided to own the landfill, and began

implementation discussions with Enviro prior to actual con-

tract negotiations.

In 1996, the Authority issued revenue bonds to finance

the construction of the landfill and three transfer stations.

Also in 1996, Enviro signed a contract with the Authority to

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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 Au-

thority. After these two counties withdrew (which was prior to

July 2002), the projected volume of waste for the Authority’s Re-

gion would have been about 129,000-130,000 tons per year.

When creating the master plan and issuing the RFP, the Author-

ity 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.

* Waste collecting trucks often unload waste locally at a transfer

station until the waste is transported to a landfill for final disposal.

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operate the Authority’s landfill,’ 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 ex-

tended 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.

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 ex-

tent 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 sig-

nificantly less than the total amount of potential waste gener-

ated in the area comprised by its Members. Although the

Authority’s issuance of bonds was based on a projected vol-

ume of 140,000 tons per year, in fiscal year 1998 the land-

fill’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 addi-

tional counties which were not Members.* While the volume

> Enviro provides the labor, management, supplies, equipment,

and insurance for the landfill and operates the scales and performs

all maintenance at the landfill.

* According to its contract with the Authority, Enviro was ot’>-

gated to bring to the Authority’s landfill all the waste it collecte.”

within a 75-mile radius of the landfill. The area comprised by the

22 counties roughly corresponds to this 75-mile radius. The flow

Sa

of trash deposited at the landfill increased with the expanded

service area, it reached a high of only 129,017 tons in fiscal

year 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 cit-

ies (Petral [sic], Laurel and Hattiesburg) respectively [collec-

tively, the Pegion] be transported to its landfill or one of its

transfer stations.” Each Member enacted identical ordi-

nances, each applicable only within the geographic area of

the particular enacting Member, with September 1, 2002, as

the effective date.° Each ordinance provided that noncompli-

ance therewith would constitute a misdemeanor.

Following the enactment of the ordinances, plaintiffs on

August 29, 2002 filed this suit against the Authority and its

control ordinances, however, apply only to the three counties and

three cities that are Members of the Authority. When the Author-

ity 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.

. 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 dis-

posed of at the landfill would likely be over 140,000, roughly the

amount needed to meet the Authority’s debt obligations.

© The flow control ordinances were subsequently reenacted in

September, October, and November of 2002.

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Members, seeking declaratory, injunctive, and monetary re-

lief under 42 U.S.C. § 1983.’ Plaintiffs BFI and Waste Man-

agement collect, process, and dispose of commercial and

residential solid waste and currently ship the trash they col-

lect 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).® 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 po-

tential constitutional challenge to the Mississippi statute pur-

suant to which the Authority was authorized to direct its

Members to enact the flow control ordinances. See

Miss.Code. Ann. § 17-17-319(2).

7 Pine Belt Waste Systems, LLC, also joined with plaintiffs in

bringing this suit. Pine Belt Waste, however, was voluntarily dis-

missed as a plaintiff on November 25, 2002, prior to trial.

® 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 col-

lected within the Region to its landfill in Madison County, Missis-

sippi, and Waste Management hauls its waste to a landfill owned

and operated by an affiliated company in Scott County, Missis-

sippl.

Ta

Tial was held in December 2002 before the district judge

withat a jury. After the trial, but before a decision was ren-

derec Perry County filed a motion to dismiss for lack of ju-

risdition based on the “adequate state grounds” doctrine.

Alsofollowing the trial, the district judge recused himself on

his wn motion, and the matter was subsequently properly

assiged, with consent of the parties, to a magistrate judge

for decision. On April 23, 2003, the magistrate judge denied

the notion to dismiss and issued findings of fact and conclu-

sionsof law and an accompanying judgment, deciding that

the »rdinances were unconstitutional under the dormant

Commerce Clause and enjoining their enforcement.’ Defen-

dant on May 22, 2003, timely filed their notice of appeal.

Discussion

Jefendants contend that the flow control ordinances do

not iolate the dormant Commerce Clause.!° We dismiss the

* }) damages were awarded. While the judgment purports to

geneally award “attorneys fees,” no amount thereof is stated in the

judgnent (or in the findings and conclusions) and we are informed

by te parties that plaintiffs have in substance waived attorneys

feesunder this judgment by failing to file any evidence of the

amont of attorneys fees or any motion in connection therewith as

contmplated in Fed.R.Civ.P. 54(d)(92) and the local rules.

'0 [efendants also contend that the district court lacked jurisdic-

tion ecause plaintiffs did not appeal the Member counties’ and

citie’ adoption of the ordinances to a state circuit court as author-

izeddy Miss.Code Ann. 11-51-75. See Benedict v. City of Hat-

tiesurg, 693 So.2d 377, 380 (Miss.1997); Falco Lime Inc. v.

Mayr & Aldermen of City of Vicksburg, 836 So.2d 711, 716

(Mis.2002). We reject that contention. The instant suit is one un-

der 2 U.S.C. § 1983 seeking declaratory and injunctive relief

agaist local government ordinances adopted under color of state

law »n the ground that the ordinances are invalid under and con-

traryto the United States Constitution. See Dennis v. Higgins, 498

U.S.439, 111 S.Ct. 865, 112 L.Ed.2d 969 (1991); National Pri-

vateTruck Council v. Oklahoma Tax Comm’n, 515 U.S. 582, 115

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dormant 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 (Sth

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 (Sth 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 Su-

preme Court has interpreted the clause to contain a negative

aspect, the so-called “dormant” Commerce Clause.

Dickerson v. Bailey, 336 F.3d 388, 395 (Sth Cir.2003). The

dormant Commerce Clause “prohibits economic protection-

ism--that is, regulatory measures designed to benefit in-state

economic interests by burdening out-of-state competitors.’”

Id. (quoting Wyoming v. Oklahoma, 502 U.S. 437, 112 S.Ct.

789, 800, 117 L.Ed.2d 1 (1992)).

We begin our dormant Commerce Clause analysis by

asking whether the ordinances “(1) facially discriminate

against out-of-state economic interests, or (2) regulate even-

handedly and thereby evince only an indirect burden on in-

terstate commerce.” Dickerson, 336 F.3d at 396. In other

words, we ask whether the ordinances “reflect[] a discrimina-

tory purpose or merely a discriminatory effect.” Jd. “Al-

though ... there is no clear line of separation between these

S.Ct. 2351, 2353-54, 132 L.Ed.2d 509 (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, 415 U.S. 452, 94 S.Ct. 1209, 1222, 39 L.Ed.2d 505

(1974). See also Self-Ins. Inst. of America, Inc. v. Korioth, 993

F.2d 479, 482 (Sth Cir.1993).

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two” classifications, “the threshold determination is signifi-

cant if only because it establishes the constitutional standard

of review.” Jd. (internal quotations and citations omitted).

Regarding the first category, “[s]tate laws discriminating

against interstate commerce on their face are virtually per se

invalid.” Jd. (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.” Jd. (internal

quotations and citations omitted). “At a minimum such fa-

cial discrimination invokes the strictest scrutiny of any pur-

ported legitimate local purpose and of the absence of

nondiscriminatory alternatives.” Hughes v. Oklahoma, 441

U.S. 322, 99 S.Ct. 1727, 1737, 60 L.Ed.2d 250 (1979). “Un-

der 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 issue is “generally struck down ... without

further inquiry.” Jd. (internal quotations and citations omit-

ted).

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.’”” Jd. (quoting Pike v. Bruce

Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 847, 25 L.Ed.2d

174 (1970)).

The magistrate judge struck down the flow control ordi-

nances, finding them to be to be facially discriminatory

against interstate commerce. The magistrate judge also de-

termined that the ordinances would not pass the Pike test,

assuming arguendo, as defendants argued, that the ordi-

nances were not facially discriminatory.

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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.'' Although defen-

dants have not explicitly raised the issue of standing, we may

consider it sua sponte. Bauer v. Texas, 341 F.3d 352, 357

(Sth Cir. 2003). Our standing analysis consists of constitu-

tional and prudential components.

I. Constitutional Standing

“To meet the constitutional standing requirement, a plain-

tiff must show (1) an injury in fact (2) that is fairly traceable

to the actions of the defendant and (3) that likely will be re-

dressed by a favorable decision.” Procter & Gamble Co. v.

Amway Corp., 242 F.3d 539, 560 (Sth Cir.2001) (citing

Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 1161, 137

L.Ed.2d 281 (1997); Lujan v. Defenders of Wildlife, 504 U.S.

555, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992)).

Plaintiffs meet the constitutional, or Article III, standing

requirements. Because of the flow control ordinances, plain-

tiffs 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”’” fee at the Authority’s landfill.

'' 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 Manage-

ment having standing. See Public Citizen, Inc. v. Bomer, 274 F.3d

212, 219 n. 5 (Sth Cir.2001) (stating that “organizational standing

requires, ... that individuals have standing to sue in their own

right”). NSWMaA took absolutely no active role in this litigation

and has not submitted anything to establish its standing independ-

ent of that of BFI and Waste Management.

'2 In garbage parlance, “tipping” is used in place of the less-

refined “dumping.”

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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.'> Thus, plaintiffs have an injury (higher operating

costs) that is traceable to the ordinances enacted by defen-

dants and which would be remedied if we rule that the ordi-

nances 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., 475 U.S. 534, 106 S.Ct. 1326, 1334 n. 8, 89

L.Ed.2d 501 (1986)).

“These judicially created limits concern whether a

plaintiff's grievance arguably falls within the zone

of interests protected by the statutory provision in-

voked in the suit, whether the complaint raises ab-

stract questions or a generalized grievance more

'? 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 plain-

tiffs from operating an “internalized” business--meaning that they

collect, transport, and dispose of the waste using their own facili-

ties. 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 of the reduced volume at the transfer stations would be an

increased operating cost per ton.

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properly addressed by the legislative branch, and

whether the plaintiff is asserting his or her own legal

rights and interests rather than the legal nghts 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,

397 U.S. 150, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). See

also Boston Stock Exch. v. State Tax Comm’n, 429 U.S. 318,

97 S.Ct. 599, 603 n. 3, 50 L.Ed.2d 514 (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 chal-

lenge the ordinances as being excessively burdensome to in-

terstate 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 discrimi-

nate against out-of-state economic interests, the dormant

Commerce Clauses [sic] seeks to protect against local eco-

nomic protectionism and retaliation among the states. C & A

Carbone, Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383,

114 S.Ct. 1677, 1682, 128 L.Ed.2d 399 (1994) (“The central

rationale for the rule against discrimination is to prohibit

state or municipal laws whose object is local economic pro-

tectionism, laws that would excite those jealousies and re-

taliatory measures the Constitution was designed to

prevent.”). In this context, discrimination “simply means

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differential treatment of in-state and out-of-state economic

interests that benefits the former and burdens the latter.”

Oregon Waste Sys., Inc. v. Dep’t of Envtl. Quality of the State

of Or., 511 U.S. 93, 114 S.Ct. 1345, 1350, 128 L.Ed.2d 13

(1994).

We conclude that plaintiffs’ injury does not fall within

the zone of interests to be protected by the dormant Com-

merce 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 gener-

ated within the Region be transported to the Authority’s land-

fill 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 Re-

gion. Plaintiffs also have not even alleged that they have any

plans to do so,'* and have not suggested that some other

party currently ships waste from the Region outside of Mis-

sissippi. or has plans to do so, or that any out-of-state waste

processor receives (or has plans to receive) any of the Re-

gion’s waste out of state. In sum, plaintiffs’ injury is not re-

'4 Stone County, a Mississippi county that is now within the Au-

thority’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 final-

ized 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 con-

sider the fact that waste from Stone County is actually shipped out

of state.

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lated to any out-of-state characteristic of their business.'*

Thus, plaintiffs do not have standing to challenge the ordi-

nances on the basis of a claim that they are facially discrimi-

natory against out-of-state interests.'© As such, we express

'S 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, dis-

poser or handler of waste (or otherwise).

'© We note that our conclusion that plaintiffs do not meet the pru-

dential 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’ Coali-

tion v. Town of Houlton, 175 F.3d 178 (ist 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. Neverthe-

less, 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 “Com-

merce 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.” Jd. at 1241 (em-

phasis 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 Com-

merce Clause, particularly when there was no allegation of any

——— Ee ae Oe ae Y a 1

ea ae

1Sa

no opinion about whether the ordinances would pass the fa-

cially discriminatory test if challenged by a proper plaintiff.

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 com-

merce. We conclude that plaintiffs do meet the zone of inter-

ests 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 in-

terstate commerce. An allegation that the plaintiff is in-

volved 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 com-

merce, 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

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 consti-

tutional provision specifically targeted to pro[t]ect those interests.”

Houlton, 175 F.3d at 183. However, the rationale behind the dor-

mant Commerce Clause is to protect against local economic pro-

tectionism at the expense of out-of-state interests, Carbone, 114

S.Ct. at 1682, not to protect any economic interests. In our opin-

ion, the Houlton court simply viewed too broadly the zone of in-

terests protected by the dormant Commerce Clause.

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or an interstate basis and that such contracts were common.

The BFI representative testified that an effect on the Missis-

sippi portion of such a contract would ripple to the portion of

the contract in other states.'’ Plaintiffs argue that, because

the flow control ordinances will raise their costs to service

these national and regional contracts which include customer

locations within the Region, they will be relatively less com-

petitive within the Region and that this impact on these con-

tracts will extend to the portion of the contracts covering

customer locations outside of Mississippi. The ordinances

thus allegedly burden plaintiffs’ interstate commerce. Plain-

tiffs therefore are arguably within the appropriate zone of

interests and, therefore, have standing to challenge whether

the ordinances excessively burden interstate commerce. ”

'7 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 disposed of within

the Region.

'8 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, 524 U.S. 417, 118 S.Ct. 2091, 2100 n. 19, 141

L.Ed.2d 393 (1998); Bowsher v. Synar, 478 U.S. 714, 106 S.Ct.

3181, 3185, 92 L.Ed.2d 583 (1986). Therefore, because we find

that BFI has standing to challenge whether the flow control ordi-

17a

D. Pike Balancing Test

We now turn to the Pike balancing test to determine

whether the flow control ordinances excessively burden in-

19 . . oe

terstate commerce.” For this analysis, because plaintiffs do

not have standing to challenge the ordinances as facially dis-

criminatory against out-of-state interests, we ignore the fact

that the ordinances would not permit them to ship waste gen-

erated within the Region out of state.

An “evenhanded” ordinance, i.e., one that does not fa-

cially discriminate against out-of-state interests and only in-

cidentally affects interstate commerce, will be upheld unless

the burden it imposes on interstate commerce is “clearly ex-

cessive in relation to the putative local benefits” of the ordi-

nance. Pike, 90 S.Ct. at 847. To make this assessment, we

consider the nature of the local interest and whether alterna-

tive 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 de-

pend on the nature of the local interest involved, and

on whether it could be promoted as well with a

lesser impact on interstate activities.” Jd.

We first look for a legitimate public purpose that defen-

dants intended to advance by implementing flow control.

Defendants indeed have a legitimate local purpose: to ensure

the economic viability of their landfill. See U & J Sanitation

nances excessively burden interstate commerce, we need not fur-

ther analyze Waste Management’s independent standing.

'9 Because the magistrate judge alternatively held that the ordi-

nances 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.

18a

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 com-

merce. To succeed in a challenge to a regulation under the

Pike balancing test, the challenging party must show that the

regulation has “a 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.” /d. (inter-

nal 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. Jd. (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 or-

dinances, because they will raise plaintiffs’ costs within the

Region and will make plaintiffs relatively less competitive,

impose a burden on plaintiffs’ interstate commerce by affect-

ing the portion of plaintiffs’ interstate contracts that involve

areas beyond Mississippi. The burdens imposed by the ordi-

nances 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 in-

crease within the Region and plaintiffs, thereby, become rela-

tively less competitive. In fact, the burden imposed on

wholly intrastate contracts, particularly those that are con-

tained 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 pre-

ee ee

19a

sumably 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 busi-

ness than will plaintiffs’ smaller contracts. We fail to see

how the ordinances will in this respect impose a greater bur-

den on interstate commerce than they will on intrastate

commerce.

Moreover, so far as they affect BFI and Waste Manage-

ment, the ordinances do not inhibit the flow of goods (or

waste) interstate. Int'l Truck & Engine Corp. v. Bray, 372

F.3d 717, 727 (Sth 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.’” Jd. (quot-

ing Exxon Corp. v. Governor of Md., 437 U.S. 117, 98 S.Ct.

2207, 2215, 57 L.Ed.2d 91 (1978)) (stating that the fact that a

regulation might cause truck purchasers to turn to other com-

peting truck manufacturers did not burden interstate com-

merce). If plaintiffs lose some of their interstate contracts

because of their higher costs within the Region, the ordi-

nances would not prohibit another garbage collector from

entering into a similar interstate contract, whether that gar-

bage 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 exces-

sively burden interstate commerce fails.

20a

Conclusion

Accordingly, (a) we DISMISS for want of standing plain-

tiffs’ claim with respect to whether the ordinances facially

discriminate against interstate commerce or out-of-state in-

terests, and (b) with respect to whether the ordinances other-

wise excessively burden interstate commerce, we REVERSE

and RENDER judgment for defendants.”°

_

20 In his opinion the magistrate judge did not reach any conclu-

sion 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 constitu-

tionality. Moreover, as we hold that as to the particular flow con-

trol ordinances here the suit must be dismissed for want of

standing with respect to whether the ordinances are facially dis-

criminatory 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.

2la

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

HATTIESBURG DIVISION

NATIONAL SOLID WASTE MANAGEMENT

ASSOC., et al., PLAINTIFFS

versus

PINE BELT SOLID WASTE MANAGEMENT AU-

THORITY, et al., DEFENDANTS

CIVIL ACTION NO. 2:02CV723Gu

[April 23, 2003]

FINDINGS OF FACT AND CONCLUSIONS OF

LAW PURSUANT TO FED. R. CIV. P. 52(A)

The question before this Court is whether certain munici-

pal ordinances restricting the disposal of solid waste col-

leced within a specific geographic area constitutes a

vidation of the Commere Clause of the United States Consti-

tuton. The plaintiffs, Waste Management of Mississippi,

Inc (“Waste Management”) and Browning Ferris Waste Sys-

tens of Mississippi, LLC (“BFT’”), are in the business of col-

lecion and disposal of solid waste. The, defendant, Pine Belt

Soid Waste Management Authority (“Authority”), caused its

menber governmental entities to enact solid waste flow con-

tro ordinances. Pursuant to these flow control ordinances,

all solid waste collected within the Authority boundaries

mut be directed to the Authority landfill and transfer sta-

tiois. Plaintiffs filed this action contending that the flow

cortrol ordinances discriminate against interstate commence.

Deendants counter that these flow control ordinances are

vald regulations for the collection and disposal of solid

waite. According to defendants, any effect upon interstate

commerce is merely incidental and any burden upon inter-

stae commerce is outweighed by the putative local benefits.

22a

FACTS

The facts in this case are largely undisputed.' In an effort

to address the public necessity for the safe and efficient col-

lection and disposal of solid waste, Mississippi enacted the

“Mississippi Regional Solid Waste Management Authority

Act.” Among other things, the Act permits local govern-

mental bodies to form regional waste management authori-

ties. In 1992, the Pine Belt Regional Waste Management

Authority was created. Its local governmental members in-

cluded the Cities of Hattiesburg, Laurel and Petal, as well as

the Counties of Covington, Jones, Perry, and Lamar.’ The

Authority generates revenue by collecting fees for solid

waste transfer and disposal at its facilities. In 1996, the Au-

thority issued revenue bonds to finance capital expenditures,

land acquisition, construction and maintenance of a regional

landfill and three transfer stations. In the event that the Au-

thority was unable to generate sufficient income to meet its

bonded indebtedness, the Authority members would be obli-

gated to make up the shortfall. While it is stipulated that the

Authority owns the landfill and transfer stations, these facili-

ties are operated under contract by a private entity, to wit:

Enviro Inc. (“Enviro”). The Authority expanded its service

area in 1999 to include approximately 22 Mississippi coun-

ties. Although the membership of the Authority did not

change, the expanded service area permits the Authority to

increase its income stream by receiving additional solid

waste from the municipalities within the expanded area. At

this time, the Authority is in the process of completing a

fourth transfer station.

' Throughout these findings and conclusions, the critical testi-

mony and exhibits will be discussed. However, all of the evidence

has been considered.

2 MIss. CODE ANN. § 17-17-301 through § 17-17-349.

> Lamar County later withdrew from the Authority.

23a

Due primarily to a reduction in the amount of solid waste

received at its facilities, the Authority realized that it would

be unable to meet its financial obligations in fiscal year 2004.

In an effort to increase the volume of solid waste received at

its facilities and consequently increase revenue, the Authority

decided to direct its members to initiate solid waste flow con-

trol ordinances. In July and August of 2002, each member of

the Authority enacted identical flow control ordinances

which require disposal of all solid waste generated within the

geographic boundaries of the Authority at one of its facili-

ties.* A violation of the flow control ordinance constitutes a

misdemeanor offense punishable by fine and/or imprison-

ment.

The plaintiffs collect, process and dispose of commercial

and residential solid waste throughout Mississippi. In addi-

tion, plaintiffs own and operate private landfills and transfer

stations. Significantly, plaintiffs have numerous private con-

tracts for the collection and disposal of commercial solid

waste within the geographic boundaries of the Authority. As

a result of the solid waste flow control ordinances enacted by

the Authority members, plaintiffs will be prohibited from

disposing of solid waste collected within the Authority

boundary at their own facilities or any other public or private

facility outside of the Authority. According to plaintiffs, the

flow control ordinances will increase their operating costs,

place in jeopardy private contracts with commercial solid

waste producers, and result in an unfair economic advantage

* The flow control ordinances were subsequently reenacted in

September, October and November of 2002. They each provide in

part that all “solid waste generated within the geographic bounda-

ries ... that is placed in the waste stream shall be transported to,

stored and managed at the Pine Belt Regional Solid Waste Man-

agement Authorities landfill in Perry County, Mississippi, or at a

transfer station owned by the Pine Belt Regional Solid Waste

Management Authority.”

24a

for their competitors. Consequently, plaintiffs filed a com-

plaint seeking declaratory, injunctive and monetary relief un-

der 42 U.S.C. § 1983. After the plaintiffs filed their

complaint, the parties reached an agreement in which the

municipalities would forego enforcement of the flow control

ordinances, thus maintaining the status quo pending trial and

disposition of this matter on the merits. The matter was tried

without a jury. Subsequent to tral, the parties consented to

trial and entry of a final judgment by a U.S. Magistrate

Judge. The case has been referred pursuant to 28 U.S.C.

§ 636(c)(1) and by the agreement of the parties has been ad-

judicated upon the trial record, exhibits and stipulations.

DISCUSSION

The Authority has undertaken an arduous task. Disposal

of ever increasing amounts of solid waste has created a na-

tional problem that has produced complex environmental,

technical and political issues. The Court must determine

whether the solid waste flow control ordinances enacted by

the defendants affects interstate commerce and if so, whether

these flow control ordinances constitute discrimination

against interstate commerce or whether they regulate in an

evenhanded manner with only incidental effects on interstate

commerce which are outweighed by the putative local bene-

fits.

The Dormant Commerce Clause

The United States Constitution provides that “(t]he Con-

gress shall have Power ... [t]o regulate Commerce ... among

the several States.” U.S. CONST. art. [, § 8, cl. 3. Although

the Commerce Clause is an affirmative grant to Congress, the

Commerce Clause has been interpreted by the courts to con-

tain a “negative” aspect. This doctrine, called the “negative”

or “dormant” Commerce Clause, is a judicially created limit

on a Sstate’s power to regulate interstate commerce in the ab-

sence of authority from the Congress. It denies the States the

power to unjustifiably discriminate against or burden the in-

25a

terstate flow of articles of commerce. Ore. Waste Sys., Inc.

v. Dep't of Envtl. Quality, 511 U.S. 93, 98,114 S. Ct. 1345,

1349, 128 L. Ed. 2d 13 (1994).

The courts have developed two lines of analysis to de-

termine if a law violates the dormant Commerce Clause.

First, the court considers whether the law is facially discrimi-

natory, in its practical effect or purpose. City of Philadelphia

v. New Jersey, 437 U.S. 617, 98 S. Ct. 2531, 57 L. Ed. 2d

475 (1978). Laws that discriminate against interstate com-

merce are virtually per se invalid unless the municipality can

demonstrate, under rigorous scrutiny, that the discriminatory

law is justified by a valid factor unrelated to economic pro-

tectionism and that no nondiscriminatory alternatives exist

which will preserve the local interests at stake. Hynt [sic] v.

Wash. State Apple Adver. Comm ‘n, 432 U.S. 333, 353, 97 S.

Ct. 2424, 2446, 53 L. Ed. 2d 383 (1977); see also Chem.

Waste Mgmt., Inc. v. Hunt, 504 U.S. 334, 342-45,112 S. Ct.

2009, 2013-16,119 L. Ed. 2d 121 (1992). Second, if the law

does not discriminate against interstate commerce, the court

considers whether the law regulates evenhandedly, having

only incidental effects on interstate commerce. “Where the

Statute regulates even-handedly to effectuate a legitimate lo-

cal public interest, and its effects on interstate commerce are

only incidental, it will be upheld unless the burden imposed

on such commerce is clearly excessive in relation to the puta-

tive local benefits.” Pike v. Bruce Church, Inc., 397 U.S.137,

142, 90 S. Ct. 844, 847, 25 L. Ed. 2d 174 (1970). Under

Pike, the court applies a “balancing test” to determine

whether the putative local interests outweigh the burden im-

posed by the law.

C & A Carbone, Inc. v. Town of Clarkstown

The seminal decision in regard to solid waste flow con-

trol ordinances and their impact on the dormant Commerce

Clause is C & A Carbone, Inc. v. Town of Clarkstown, 511

U.S. 383,114 S. Ct.1677,128 L. Ed. 2d 399 (1994). In Car-

26a

bone, the Town of Clarkstown, New Jersey, wanted to build

a transfer station in order to process non-recyclable solid

waste. A private contractor agreed to build the facility and

run it for five years. During the five year period, the transfer

station would be financed by a “tipping fee” collected by the

contractor. In addition, the Town of Clarkstown agreed to

guarantee a minimum tonnage of solid waste and to pay for

any deficiencies between the actual and guaranteed minimum

tonnage. Upon expiration of the five-year operating agree-

ment, the contractor agreed to convey the facility to the

Town of Clarkstown for one dollar. In an effort to avoid the

potential that local taxpayers would be required to pay addi-

tional fees to the private operator for solid waste that was

never actually delivered, the Town of Clarkstown enacted a

flow control ordinance. The flow control ordinance required

that all acceptable solid waste generated within the Town of

Clarkstown be processed at the new transfer station. C. & A.

Carbone, Inc. was cited for violation of the flow control ordi-

nance by exporting solid waste that had been generated

within the town’s geographic boundaries.

The Supreme Court held that the flow control ordinance

enacted by the Town of Clarkstown discriminated against

interstate commerce because it permitted only the favored

local operator to process waste. The Court reasoned as fol-

lows:

[T]he article of commerce is not so much the solid

waste itself, but rather the service of processing and

disposing of it.

With respect to this stream of commerce, the

flow control ordinance discriminates, for it allows

only the favored operator to process waste that is

within the limits of the town. The ordinance is no

less discriminatory because in-state or in-town proc-

essors are also covered by the prohibition ... .

27a

. . . The essential vice in laws of this sort is

that they bar the import of the processing service

Put another way, the offending local laws

hoard a local resource — be it meat, shrimp, or milk

— for the benefit of local businesses that treat it.

The flow control ordinance has the same de-

sign and effect. It hoards solid waste, and the de-

mand to get rid of it, for the benefit of the preferred

processing facility.

Carbone, 511 U.S. at 391-92 (citations omitted). Applying

strict scrutiny, the Court further held that the discriminatory

flow control ordinance was per se invalid since the town

could have protected its local interests through nondiscrimi-

natory alternatives. In so holding, the Court reasoned as fol-

lows:

The flow control ordinance does serve a cen-

tral purpose that a nonprotectionist regulation would

not: It ensures that the town-sponsored facility will

be profitable, so that the local contractor can build it

and Clarkstown can buy it back at nominal cost in

five years. In other words, as the most candid of

amici and even Clarkstown admit, the flow control

ordinance is a financing measure. By itself, of

course, revenue generation is not a local interest that

can justify discrimination against interstate com-

merce ....

Clarkstown maintains that special financing is

necessary to ensure the long-term survival of the

designated facility. If so, the town may subsidize

the facility through general taxes or municipal

bonds. But having elected to use the open market to

earn revenues for its project, the town may not em-

ploy discriminatory regulation to give that project

an advantage over rival businesses from out of

State.

28a

Carbone, 511 U.S. at 393-94 (citations omitted).

The Public/Private Distinction

In United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid

Waste Mgmt. Auth., 261 F.3d 245 (2d Cir. 2001) cert. denied

534 U.S. 1082 (2002), the district court, applying Carbone,

held that the counties’ flow control laws discriminated

against interstate commerce in favor of the authority’s desig-

nated facilities. The Second Circuit reversed. It found the

facts in Carbone were distinguishable in that the Clarkstown

transfer station was owned by a private contractor while the

counties’ transfers stations were publicly owned. The court

held that:

[A] flow control ordinance governing the processing

of waste is not discriminatory under the Commerce

Clause unless it favors local private business inter-

ests over out-of-state interests. Flow control regula-

tions . . ., which negatively impact all private

businesses alike, regardless of whether in-state or

out-of-state, in favor of a publicly owned facility,

are not discriminatory under the dormant Commerce

Clause.

United Haulers, 261 F.3d at 263.° The case was remanded to

the district court for a determination of whether the counties’

flow control ordinances passed constitutional muster under

the Pike balancing test.

The majority in Carbone did not draw a distinction be-

tween publicly and privately owned facilities for purposes of

its analysis of the Clarkstown flow control ordinance under

the dormant Commerce Clause. Neither has the Fifth Circuit

had an occasion to consider the issue. Nonetheless, defen-

* See also East Coast Recycling, Inc. v. City of Port St. Lucie,

234 F. Supp. 2d 1259 (S.D. Fla. 2002) (recognizing the distinction

between public and private ownership and applying the Pike test).

29a

dants invite the Court to embrace the public/private distinc-

tion in United Haulers and evaluate their flow control ordi-

nances under the less demanding Pike test. In the absence of

clear and binding precedent supporting the public/private dis-

tinction in evaluating the impact of defendants’ flow control

ordinances on interstate commerce, the majority opinion in

Carbone controls. It is the opinion of this Court, that the

July 2002 flow control ordinances enacted by the Authority,

like the flow control ordinance in Carbone, discriminate

against interstate commerce. The Authority has drawn a ring

around itself. Solid waste collected within that ring must be

processed at its preferred transfer stations and landfill. These

flow control ordinances prevent everyone except the favored

local operator from processing solid waste collected within

its boundaries and deprives outside access to the local waste

disposal market. Consequently, these flow control ordi-

nances hoard “solid waste, and the demand to get rid of it, for

the benefit of the preferred processing facility.” Carbone,

511 U.S. at 392. It is also the opinion of this Court that the

defendants have failed to demonstrate that they had no other

means to advance their admitted objective: the generation of

adequate revenue to meet their financial obligations. In fact,

the trial evidence showed that defendants could have pro-

moted financial viability through i increases in taxes, through

the imposition of franchise fees® or by increasing the amount

of solid waste processed at its facilities by accepting solid

waste from municipalities outside of the Authority. Thus,

like the flow control ordinance in Carbone, these flow con-

trol ordinances are pre se [sic] invalid.

Moreover, while the parties have stipulated that the Au-

thority owns the landfill and transfer stations, the relationship

* During trial, the Authority admitted that an alternative means of

generating revenue was the collection of a “franchise fee” granting

private solid waste collectors a license to collect solid waste within

the Authority’s geographic boundaries.

30a

between the Authority and Enviro (the contract operator)

makes it difficult to characterize the Authority landfill and

transfer stations as a purely public endeavor. Jn United

Haulers, the waste management authority owned and oper-

ated all of its facilities save one transfer station. United

Haulers, 261 F.3d at 250. The court was also careful to point

out that the “current out-sourcing of the transfer station’s op-

eration is a temporary measure.” United Haulers, at 251. In

contrast, the Authority has given no indication that it intends

to assume the operation of its facilities or that the current sys-

tem of private operation of its facilities is other than perma-

nent. Enviro’s contract with the Authority essentially gives

Enviro complete control over the operation and maintenance

of the landfill and transfer stations. Enviro provides all of the

equipment and personnel. It controls access to the facilities,

and operates and maintains the weight scales and records.

While the operating contract does not guarantee a minimum

amount of solid waste, payments to Enviro are based upon

the amount of solid waste delivered to each facility. Deten-

dants’ flow control ordinances not only increase the amount

of solid waste processed at its facilities, but they insure En-

viro an increased stream of solid waste and the ultimate reve-

nue that it generates. When these factors are considered in

combination with the fact that Enviro is also in the solid

waste collection and disposal business and that its primary

competitors are plaintiffs, the economic advantages associ-

ated with the flow control ordinances cannot be categorized

as purely public. In sum, the nature of the relationship be-

tween the Authority and Enviro is clearly distinguishable

from the United Haulers case.

Finally, this Court notes that defendants’ reliance on the

Pike balancing test to vindicate these flow control ordinances

is misplaced. Assuming arguendo that defendants are entitled

to rely on the public/private distinction announced in United

Haulers and that the Pike balancing test applies, under the

facts in this case, the flow control ordinances would fail to

2.20

3la

pass constitutional muster. The concurring opinion in Car-

bone is instructive. Justice O’Connor reasoned that the

Town of Clarkstown’s ordinance did not discriminate against

interstate commerce. Carbone, 511 U.S. at 404-05

(O’Connor, J., concurring). However, applying the Pike test,

Justice O’Connor determined that Clarkstown’s flow control

ordinance imposed an excessive burden in relation to the pu-

tative local benefits. Justice O’Connor concluded:

That the ordinance does not discriminate

against interstate commerce does not, however, end

the Commerce Clause inquiry. Even a nondiscrimi-

natory regulation may nonetheless impose an exces-

sive burden on interstate trade when considered in

relation to the local benefits conferred. ... More-

over, “the extent of the burden that will be tolerated

will of course depend on the nature of the local in-

terest involved, and on whether it could be pro-

moted as well with a lesser impact on interstate

activities.” Pike, 397 U.S., at 142, 90 S.Ct., at 847.

Judged against these standards, Local Law 9 fails.

The local interest in proper disposal of waste

is obviously significant. But this interest could be

achieved by simply requiring that all waste disposed

of in the town be properly processed somewhere.

For example, the town could ensure proper process-

ing by setting specific standards with which all town

processors must comply.

In fact, however, the town’s purpose is nar-

rower than merely ensuring proper disposal. Local

Law 9 is intended to ensure the financial viability of

the transfer facility. I agree with the majority that

this purpose can be achieved by other means that

would have a less dramatic impact on the flow of

goods. For example, the town could finance the

project by imposing taxes, by issuing municipal

32a

bonds, or even by lowering its price for processing

to a level competitive with other waste processing

facilities. But by requiring that all waste be proc-

essed at the town’s facility, the ordinance

“squelches competition in the waste-processing ser-

vice altogether, leaving no room for investment

from outside.”

Carbone, at 405-07 (O’Connor, J., concurring) (citations

omitted).

Likewise, defendants’ solid waste flow control ordi-

nances were enacted out of the need to generate additional

income in order to meet future financial obligations. The

Court recognizes that the Authority’s need to generate suffi-

cient income to maintain economic viability constitutes a le-

gitimate public purpose, but it is not a permissible basis for

interference with interstate commerce. As noted by the Court

in Carbone, “[b]y itself, . . . revenue generation is not a local

interest that can justify discrimination against interstate

commerce.” Carbone, at 393. As noted above, the Authority

could have undertaken alternative steps to insure its eco-

nomic interests without resorting to solid waste flow control.

In addition, defendants introduced no evidence at trial which

tended to demonstrate that environmental or public health

concerns were the motivating force behind enactment of

these flow control ordinances. Thus, even under the less rig-

orous Pike test, defendants’ solid waste flow control ordi-

nances fail.

CONCLUSION

It is the opinion of the Court that the solid waste flow

control ordinances enacted by the members of the Pine Belt

Regional Waste Management Authority affect interstate

commerce. It is also the opinion of the Court that these flow

control ordinances, like the flow control ordinance in Car-

bone, discriminate aga’nst interstate commerce and are pre se

[sic] invalid. It is also the opinion of the Court that the de-

33a

fendants have failed to demonstrate that they had no other

means to advance the local governmental interest.

IT IS THEREFORE ORDERED AND ADJUDGED,

that plaintiffs are entitled to Declaratory Relief as stated

herein above and that plaintiffs are entitled to a permanent

injunction prohibiting the enforcement of the solid waste

flow control ordinances enacted by the defendants in July

and August of 2002 and subsequently reenacted in Septem-

ber, October and November of 2002.

IT IS FURTHER ORDERED AND ADJUDGED, that

all further relief should be, and is hereby denied. The Court

shall enter a separate judgement pursuant to Fed. R. Civ. P.

58.

SO ORDERED AND ADJUDGED, this the 23 day of

April, 2003.

ltl

LOUIS GUIROLA, JR.

U.S. MAGISTRATE JUDGE

34a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS,

FOR THE FIFTH CIRCUIT

No. 03-60470

NATIONAL SOLID WASTE MANAGEMENT ASSOCIA-

TION; ET AL

Plaintiffs

NATIONAL SOLID WASTE MANAGEMENT ASSOCIA-

TION; BFI WASTE SYSTEMS, BFI Waste systems of Mis-

sissippi LLC; WASTE MANAGEMENT OF MISSISSIPPI

INC

Plaintiffs — Appellees

V.

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

Appeals from the United States District Court for the

Southern District of Mississippi, Hattiesburg

ON PETITIONS FOR REHEARING EN BANC

(Opinion 10/29/04, 5 Cir., , F.3d )

35a

Before GARWOOD, WIENER and DeMOSS, Circuit

Judges.

PER CURIAM:

( ~ ) Treating the Petitions for Rehearing En Banc as Peti-

tions for Panel Rehearing, the Petitions for Panel Rehearing

are DENIED. No member of the panel nor judge in regular

active service of the court having requested that the court be

polled on Rehearing En Banc (Fed. R. App. P. and 5" Cir. R.

35), the Petitions for Rehearing En Banc are DENIED.

( ) Treating the Petitions for Rehearing En Banc as Peti-

tions for Panel Rehearing, the Petitions for Panel Rehearing

are DENIED. The court having been polled at the request of

one of the members of the court and a majority of the judges

who are in regular active service not having voted in favor

(Fed. R. App. P. and 5" Cir. R. 35), the Petitions for Rehear-

ing En Banc are DENIED.

ENTERED FOR THE COURT:

[s]

United States Circuit Judge