Opposition Brief — Murphy v. Waste Management Holdings, Inc.

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No. 01-808 |

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In the Supreme Court of the Gnited States

RONALD P. HAMM, SECRETARY OF NATURAL RESOURCES,

COMMONWEALTH OF VIRGINIA, AND DENNIS H. TREACY, JR.,

DIRECTOR, DEPARTMENT OF ENVIRONMENTAL QUALITY,

COMMONWEALTH OF VIRGINIA

Petitioners,

2

WASTE MANAGEMENT HOLDINGS, INC., HALE INTERMODAL

MARINE COMPANY, WEANACK LAND LIMITED PARTNERS,

CHARLES CITY COUNTY, AND BRUNSWICK WASTE

MANAGEMENT FACILITY

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF FOR THE RESPONDENTS IN OPPOSITION

D. ALAN RUDLIN KENNETH S. GELLER

TIMOTHY G. HAYES EVAN M. TAGER

SHAWN A. COPELAND Counsel of Record

Hunton & Williams MIRIAM R. NEMETZ

951 E. Byrd Street Mayer, Brown & Platt

Richmond, VA 23219 1909 K Street, N.W.

(804) 788-8200 Washington, 1).C. 20006

Counsel for Respondents (202) 263-3000

Hale Intermodal Marine Co. Counsel for Respondents

and Brunswick Waste Waste Management Holdings,

Management Facility, L.L.C. Inc. and Weanack Land

Limited Partnership

(Additional Counsel on Inside Cover)

Us

re ae ——— - — ,

ee Eee eee

JASON S. THOMAS B. RANDOLPH BOYD

Hunton & Williams Randolph, Boyd,

One Hanover Square Cherry & Vaughan

Suite 1400 14 East Main Street

Fayette Street Mall Richmond, VA 23219

Raleigh, NC 27602 (804) 643- 6611

(919) 899-3000 Counsel for Respondent

Counsel for Respondents Charles City County

Hale Intermodal Marine Co.

and Brunswick Waste

Management Facility, L.L.C.

MEADE A. SPOTTS

Spotts, Fain, Chappell

& Anderson, P.C.

411 E. Franklin Street

Suite 60]

Richmond, VA 23219

(804) 788-1345

Counsel for Respondent

Brunswick Waste

Management Facility, L.L.C.

Counsel for Respondents

MC SULDEEE GEOR Stay

QUESTIONS PRESENTED

1. Whether the lower courts erred in concluding that the

evidence that the challenged statutes were motivated by an

intention to discriminate against out-of-state waste justified

application of strict scrutiny.

2. Whether the lower courts erred in concluding that the

challenged statutes were not the least discriminatory means of

furthering a legitimate state interest.

3. Whether the lower courts erred in concluding that the

contention that New York violated the Commerce Clause by

“dumping” waste into interstate commerce is not a valid

defense to respondents’ Commerce Clause claims.

(I)

li

RULE 29.6 STATEMENT

Waste Management Holdings, Inc., is a wholly owned

subsidiary of Waste Management, Inc. Hale Intermodal Marine

Company and Weanack Land Limited Partners are not publicly

held and do not have any parent corporations. Brunswick

Waste Management Facility is a wholly owned subsidiary of

Allied Waste North America, Inc.

ill

TABLE OF CONTENTS

Page

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TABLE OF AUTHIIOMITING «ciiice cides oe tivecesceccee iv

INS 4556 SU LGSE redviecktasnabackesdseaeees 1

REASONS FOR DENYING THE PETITION ......... 17

iv

TABLE OF AUTHORITIES

Page(s)

Cases:

Brimmer v. Rebman, 138 U.S. 78 (1891) .............. 22

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

ee Ee Veccccesenceecwuscese 22

City of Philadelphia v. New Jersey,

i oS ce web aise 20, 25

Dean Milk Co. v. City of Madison,

| |, _ EEEE Toray re er 22

Fort Gratiot Sanitary Landfill, Inc. v. Michigan

Dep’t of Natural Res., 504 U.S. 353 (1992) ........ 22

Great Atl. & Pac. Tea Co. v. Cottrell,

ss wd ane bh enehaw ea mare 26, 29

Harvey & Harvey, Inc. v. County of Chester,

ee ee Pe I Ha so vn cecccccsccccseses 18

Hughes v. Oklahoma, 441 U.S. 322 (1979) ............ 24

Hutchins v. District of Columbia,

pk EE oe re 26

Maine v. Taylor, 477 U.S. 131 (1986) ................ 24

New Energy Co. v. Limbach, 486 U.S. 269 (1988) ...... 29

Reeves, Inc. v. Stake, 447 U.S. 429 (1980) ............ 28

Stone v. Graham, 449 U.S. 39 (1980) ................ 19

Village of Arlington Heights v. Metropolitan

Housing Dev. Corp., 429 U.S. 252 (1977) .......... 19

Vv

TABLE OF AUTHORITIES — Continued

Page(s)

Statutes and Regulations:

42 U.S.C. § 6901 ef Seq ..-. ec cece cece eee ee eeeee ]

Va. Code Ann. § 10.1-1408.1.Q .....---eeeee eee eeee 12

Va. Code Ann. § 10.1-1408.3 ......--- cece cece eens 9

Va. Code § 10.1-1454.1 2.2... eee eee eee cree eens 10

Va. Code Ann. § 10.1-1454.1.A ......5- eee ee eeeees 11

Va. Code Ann. § 10.1-1454.1.A(d) .....---- 22sec eres 11

Va. Code Ann. § 10.1-1454.2 ......-. eee eeeeee rece 11

Va. Code Ann. § 10.1-1454.3.A ......--eee cece cere 12

Va. Code Ann. § 10.1-1454.3.A(1) ....------ee eee eee 12

Va. Code Ann. § 10.1-1454.3.A(2) ....------ee eee eee 12

Va. Code Ann. § 10.1-1454.3.B........---- eee cree 13

Va. Code Ann. § 10.1-1454.3.C .... 2... eee ee eee eee 13

Va. Code Ann. § 10.1-1454.3.D .......---------++e 12

N.C. Admin. Code tit. 15A, r. 13B.1202 ........------ 25

9 Va. Admin. Code § 20-120-130.D.2 .........------- 25

9 Va. Admin. Code § 20-80-250.c ........------+-+-- 26

BRIEF FOR THE RESPONDENTS IN OPPOSITION

As it comes to this Court, this case involves three

provisions of Virginia law that were enacted for the avowed

purpose of limiting the importation of municipal solid waste

(“MSW”) for disposal in Virginia. Both courts below found the

evidence of discriminatory animus to be overwhelming and

both courts held that the challenged provisions were not the

least discriminatory means of achieving any legitimate state

interest. Those rulings constitute straightforward applications

of well-established Commerce Clause principles that do not

warrant this Court’s review.

STATEMENT

1. MSW Landfills in Virginia. There are seven state-of-

the-art “regional” landfills and 63 “local” landfills in Virginia

that accept MSW. C.A. App. 497.' Respondent Waste

Management Holdings, Inc. (“WMH”) operates five of the

regional landfills (ibid), and respondent Brunswick Waste

Management Facility, Inc. (“Brunswick”) operates a sixth (id.

at 467). Each of the regional landfills was designed and

constructed to meet or exceed stringent state and federal

standards, including all requirements established by Subtitle D

of the Resource Conservation and Recovery Act, 42 U.S.C. §

6901 et seq. Id. at 468, 497, 888. By contrast, many of

Virginia’s 63 “local” landfills do not meet Subtitle D standards

and have been documented to be conteminating the

groundwater. Jd. at 513, 515-526.

The regional landfills were developed with the expectation

that they would receive substantial volumes of MSW, including

out-of-state MSW. Id. at 469, 498. Each of the regional

landfills in fact receives substantial quantities of waste

' Citations to the joint appendix in the Fourth Circuit are designated

CA Age.”

2

generated outside of Virginia. Jd. at 499-500. According to a

November 1998 report issued by the Virginia Department of

Environmental Quality (“DEQ”), more than 70% of the MSW

received by the seven regional landfills was generated outside

Virginia, accounting for 97% of Virginia’s imported waste. Jd.

at 499-500, 511. By contrast, 53 of the 63 local landfills

received no out-of-state waste, and the remaining ten accounted

for only 3% of Virginia’s total waste imports. Jd. at 500.

2. WMH’s Contracts to Dispose of Waste Generated in

New York City. For several decades, New York City had

disposed of its residential MSW at the Fresh Kills landfill in

Staten Island. C.A. App. 472. In 1997, Mayor Rudolph

Giuliani announced that the Fresh Kills landfill would cease

receiving waste by December 31, 2001. Jbid. Thereafter, the

New York City Department of Sanitation began to seek interim

contracts for the disposal of residential MSW elsewhere. Jd. at

473. WMH was awarded several of these interim contracts and

began transporting a significant amount of this waste to its

Virginia landfills. Ibid. WMH also submitted a proposal for a

long-term contract to dispose of up to 12,000 tons per day of

New York’s residential MSW after the closing of Fresh Kills.

Id. at 474. The proposal contemplated sending a significant

quantity of the waste to landfills in Virginia. bid.

WMH also receives for disposal approximately 8,000 to

10,000 tons per day of commercial MSW (i.e., waste from

stores, restaurants, and other non-industrial sources) generated

in the New York City area. Jd. at 490. In 1998, WMH decided

to begin transporting some of this waste to Virginia by barge.

Ibid. It entered into negotiations with respondent Hale

Intermodal Marine Company to barge the MSW to the James

River facility, with the expectation of beginning barging in

March or April 1999. Jd. at 491. WMH also purchased 400

double-walled steel containers designed to meet the standards

for the waterborne transportation of MSW set forth in Va. Code

§ 10.1-1454.1. [bid. These containers are substantially sturdier

than conventional containers and are more protective of the

3

environment than many of the vessels that are routinely used to

ship commodities more hazardous than MSW on Virginia’s

waterways. Id. at 465-466.

3. Virginia’s Hostile Reaction to the Increased

Importation of Out-of-State MSW. In June 1998, DEQ

released a report indicating that Virginia had imported 788,000

tons of solid waste in the fourth quarter of 1997 and that most

of the waste was being disposed of at the regional landfills.

C.A. App. 564-565. This information, combined with reports

that WMH planned to ship increasing amounts of New York

MSW to Virginia, much of it by barge, triggered an almost-

immediate “not-in-my-backyard” response by the

Commonwealth’s legislators and public officials. In July 1998,

for example, Senator William T. Bolling wrote to Attorney

General Mark Earley:

With the impending closure of the Fresh Kills Landfill

in New York, I am concerned that the pressure for

additional importation will increase even more in the

next few years. If it is legally possible to do so, I would

like to introduce legislation during the 1999 session of

the General Assembly that would place restrictions on

such importations.

Id. at 576.

Further impetus for a legislative attack on out-of-state waste

was supplied barely a month later, in August 1998, when the

Congressional Research Service released a report indicating

that Virginia had become the second largest importer of MSW,

disposing of 2.8 million tons of out-of-state solid waste per

year. Id. at 582.

Consistent with the intention expressed in his July letter to

the Attorney General, on September 30, 1998, Senator Bolling

announced that he would introduce solid waste legislation in

the upcoming legislative session. In the memorandum

describing his proposals, he stated that Virginia “is currently

4

the second largest importer of out of state waste in the nation”;

that “the pressure to import larger amounts of out of state waste

to Virginia will increase dramatically in the next few years”;

that WMH “recently announced a new contract with New York

City that could bring up to 2,400 tons of garbage a day to

Virginia,” most of which “will be transported by barge on

Virginia’s waterways”; and that “the vast majority” of garbage

“currently disposed of in the Fresh Kills landfill * * * may be

heading to Virginia.” Jd. at 601.

On the same day, Senator Bolling issued a press release

stating in part:

There is tremendous excess capacity in Virginia’s

landfills today. If we don’t act now to cap the total

amount of waste that can be disposed of in Virginia’s

landfills, the amount of waste being brought to Virginia

from other states will increase significantly in the next

few years. Such caps are the only effective way of

limiting the amount of waste that is being imported to

Virginia, and preserving our current landfill capacity

for future generations of Virginians.

Id. at 607. Senator Bolling specifically noted that “the pressure

to import solid waste to Virginia would increase significantly

* * * with the impending closure of the Fresh Kills landfill” and

that WMH was “making a $20 million investment in” the James

River facility. Id. at 606. :

In November 1998, DEQ submitted a report on the

management of MSW in Virginia. The report observed that the

seven regional landfills accounted for 97% of the imported

MSW and that 70% of the waste received by those facilities

was imported. Jd. at 503, 505,511. Soon after receiving the

report, Governor Gilmore imposed a moratorium on new

landfill development and irstructed his Secretary of Natural

Resources to “make recommendations to me for consideration

at the next regular session of the General Assembly.” Jd. at

610. Later that month, House Speaker Thomas Moss asked

5

rhetorically: “If out-of-state trash is such a good thing, why

doesn’t New York State keep it there?” Jd. at 40, 152.

Meanwhile, Virginia’s status as a leading importer of waste

and the plans of WMH to dispose of New York MSW in

Virginia were becoming widely publicized. In January 1999,

the Center for Public Policy at Virginia Commonwealth

University announced that, “[b]y a margin of nearly ten to one,

Virginians favor limiting the amount of out-of-state garbage

coming into Virginia.” Jd. at 611. Also in January, The

Washington Post reported that WMH planned to ship 3,900

tons per day of New York MSW by barge to the Charles City

County Landfill. Jd. at 614-615. In response, Senator Bolling

stated that “[t]his ratchets up the importance of the General

Assembly doing something substantive this year to address the

problem.” Jd. at 96, 173. Governor Gilmore’s press secretary

announced that the Governor was “outraged that this additional

garbage is coming into the Commonwealth” and would call for

legislation limiting imports of out-of-state waste. Ibid.

_ Delivering his State of the Commonwealth address the next

day, Governor Gilmore stated that he was “deeply concerned

about the importation of out-of-state trash,” specifically noting

that “a major company [had] announced plans to import four

thousand more tons of New York City trash into Virginia per

day.” Id. at 630. He added:

I believe the Commonwealth has a right — and I would

say a duty — to ban the use of barges for the

transportation of garbage on Virginia’s waterways!

I'll ask the General Assembly to enact such a ban to

impose tough new permit requirements on the

construction or expansion of new landfill space, caps on

the amount of waste that can be deposited in Virginia

landfills and increased inspections of waste being

hauled by truck or other means.

6

Ibid. A few days later, the Governor publicly released a letter

to Mayor Giuliani. Among other things, the letter stated:

I am greatly concerned by your recent comments

regarding the transport of New York City’s municipal

waste to Virginia and the policy you announced in

December to increase exports of waste to neighboring

states. * * * Let me assure you that the home state of

Washington, Jefferson, and Madison has no intention of

becoming New York’s dumping grounds.

Over the past two weeks, one company in Virginia has

tripled its shipments of New York’s municipal waste to

Virginia landfills to approximately 3,000 tons a day.

The company also reports that it expects shipments to

increase to roughly 2.2 million tons per year by 2002.

Already, Virginia ranks as the second largest importer

of municipal solid waste, behind only Pennsylvania.

This is highly unacceptable.

Id. at 633-634.

The following week, Governor Gilmore announced that he

was proposing, and that Senator Bolling would be the principal

sponsor of, three solid waste bills, stating:

The home state of Washington, Jefferson, and Madison

has no intention o[f] becoming the nation’s dumping

grounds. * * * That is why I’ve asked Senator Bolling

to sponsor these bills that will increase state regulations

on landfills, cap daily landfill deposits, and ban trash

barges on Virginia’s waterways.

Id. at 635.

Senator Bolling promptly followed with a memo to the

members of the Solid Waste Subcommittee of the Senate

Committee on Agriculture, Conservation, and Natural

Resources (the “Solid Waste Subcommittee”), stating:

7

Earlier this year, the [DEQ] published their first written

report quantifying the amount of waste that was being

placed in Virginia’s landfills. Surprisingly, this report

indicated that Virginia was receiving 3.2 million tons of

garbage from other states, primarily New York. * * *

Virginia was identified as the second largest importer of

waste in the nation.

Unfortunately, the amount of garbage being imported to

Virginia has grown dramatically in the past year. That

is primarily due to the impending closure of the Fresh

Kills landfill in New York City, and the fact that Waste

Management, Inc., who owns most of the large regional

landfills in Virginia, has received the contract to handle

the relocation of the Fresh Kills waste stream.

* * *

[W]e may have to site an entire generation of new

landfills in Virginia 20 years sooner than we would

otherwise have to do simply because our current landfill

space is being filled up by waste from other states.

. * *

[T]hese waste deposits could create long term

environmental problems for Virginia. * * * While we

have no choice but to assume this burden for our own

waste, we should feel no obligation to assume that

burden for the waste of other states.

* * *

I would suggest that becoming the nation’s “King of

Trash” is not consistent with the image we have tried to

promote for Virginia. * * * How can we possibly

promote Virginia as the Silicon Dominion of the 21st

century while we stand idly by and allow Virginia to

become the largest importer of garbage in the nation.

8

Id. at 637-638; see also id. at 644-650. Meeting with the Solid

Waste Subcommittee a few days later, Senator Bolling again

made it clear that the legislation was designed to address the

problem of out-of-state waste, stating:

[E]ven though the headlines in the newspapers talk

about New York trash, it is not just a New York

problem. It is a problem where this waste is now

coming to Virginia from 24 other states and Puerto

Rico. :

Id. at 672.

While the General Assembly was considering the

legislation, a group called Campaign Virginia was aggressively

lobbying for limitations on out-of-state waste. Campaign

Virginia sent letters to legislators emphasizing that Virginia

was “the #2 importer of trash in the nation” and that “[t]he

major waste companies are negotiating with New York City for

the privilege of carting the 4.3 million tons of the City’s

garbage.” Jd. at 1351 (emphasis in original).’ It ran radio

advertisements encouraging voters to inform their legislators

“that Virginia’s had all the garbage we’re going to take.” Jd. at

1353. The Sierra Club, too, encouraged voters to write

members of the General Assembly that “Virginia citizens have

said enough” to importation of out-of-state waste, and to

request that legislators declare support for legislation

“ban[ning] the barging of municipal solid waste on Virginia’s

waters.” Jd. at 1358.

The antipathy toward out-of-state MS W was exemplified in

Delegate Donald L. Williams’s speech on the floor of the

General Assembly:

? In an amicus brief filed with the district court, Campaign Virginia

stated that, “[iJn pursuit of the legislation herein challenged, [it]

contacted more than 300,000 people, from whom approximately

15,000 letters and several thousand telephone calls went to

legislators.” Dist. Ct. Doc. # 80, at 1.

9

Do we want to be known as the capital of garbage?

Maybe we need a new bumper sticker — instead of

Virginia is for lovers, what about Virginia is for

garbage? Or how about a special license plate with a

dumpster on it?

Mr. Speaker, I do not believe we need to be the capital

of garbage in our state. Do you believe any large

corporation would locate in the garbage capital of the

country?

What a message we are sending, buy a home, live in the

great Commonwealth, the number one importer of

garbage.

Id. at 1007. Each of Delegate Williams’ rhetorical questions

was greeted with a chorus of “nos” from the assembled body

(ibid.), which shortly thereafter enacted the legislation.

4. Virginia Enacts Legislation that Effectuates its

Discriminatory Purpose. The legislation enacted by the

General Assembly and signed by the Governor was carefully

crafted to frustrate at every turn the stated plans of WMH for

the transportation and disposal of New York waste. The

provisions include:

a. The cap. Va. Code Ann. § 10.1-1408.3 (hereinafter “the

cap”) provides in relevant part:

A. The amount of municipal solid waste received at

any landfill authorized to accept such waste shall not

exceed an average of 2,000 tons per day, or the

documented average actual amount of municipal solid

waste received by such landfill on a daily basis during

1998, * * * whichever is greater, unless the landfill has

received approval from the [Virginia Waste

Management] Board pursuant to subsection B for a

larger tonnage allotment.

10

The legislative history reflects that the cap was deliberately

gerrymandered to ensure that it would affect only the regional

landfills. An early draft of the provision would have limited all

landfills to a 5% increase over 1998 volumes. After local

governments objected that this provision would unduly restrict

the growth of local landfills handling only Virginia waste, the

bill was amended to allow the greater of 1998 volumes or 2,000

tons per day. C.A. App. 665; see also id. at 1065-1067

(testimony of director of public waste authority that he

expressed concerns to Senator Bolling that the original cap

provision would adversely affect the local landfills). DEQ

provided Senator Bolling with information confirming that the

2,000 tons-per-day cap would restrict the expansion of the

regional landfills while having no impact on local landfills. Jd.

at 666, 1059-1060.

Armed with DEQ’s statistics, Senator Bolling informed the

Solid Waste Subcommittee that “[t]he vast majority of [MSW]

received at the seven regional landfills in Virginia comes from

other states” (id. at 667) and provided data showing that six of

those seven landfills would be affected by the cap. Jd. at 667-

671. He also assured the Subcommittee that only those

landfills would be affected, explaining that “[e]very other

landfill in Virginia is significantly below 2,000 tons” and that

“most local landfills in Virginia are below 100 tons a day.” Jd.

at 673.

b. The prohibitions on transportation of MSW by vessel.

The General Assembly also amended Va. Code § 10.1-1454.1

to effectively prohibit the use of barges to transport MSW into

Virginia. Governor Gilmore articulated the discriminatory

motive underlying the amendments, stating at the time they

were introduced: “Barge traffic is a cheap and easy way to

import trash from far distances. If we can put the clamps on

that, then we can address the issue of trucks.” C.A. App. 675.

To “put the clamps” on barge traffic, the General Assembly

modified an existing statute (enacted the preceding year)

11

requiring the Virginia Waste Management Board to promulgate

regulations governing the commercial transportation of solid

waste on vessels upon the navigable waters of Virginia. Va.

Code Ann. § 10.1-1454.1.A. Although existing law already

required the Board to promulgate regulations that would protect

human health, safety, and the environment, the new legislation

specifically directed the Board to issue a regulation requiring

that “containers [of solid waste] be stacked no more than two

high on barges.” Jd. § 10.1-1454.1.A(d) (the “container-

stacking limitation”). The new legislation also prohibited all

barging of waste to any Virginia facility until the required

regulations became effective. Ibid.

While the latter provision would have put in place an

immediate ban of indefinite duration on barging to Virginia

landfills, the container-stacking limitation would effectively

preclude barging permanently. Barges that carry containerized

MSW ordinarily are loaded with containers stacked five high.

C.A. App. 489. It would more than double the shipping costs

per ton, and thus make it economically impracticable to ship

MSW by barge, if the waste containers could be stacked only

two high. Jd. at 491. Moreover, because only an insignificant

amount of MSW is shipped by vessel within Virginia (id. at

501), and because none of that waste is shipped on container

barges (ibid.), the container-stacking limitation would have no

effect on the transportation of Virginia’s waste.

Adopting a “belt-and-suspenders” approach to preventing

the barging of MSW to Virginia, the General Assembly also

specified that “the commercial transport of hazardous or

nonhazardous solid waste * * * by ship, barge or other vessel

upon the navigable waters of the Commonwealth is prohibited

on the Rappahannock, James and York Rivers.” Va. Code Ann.

§ 10.1-1454.2 (the “three-river ban”). By blocking its access to

three major waterways, this provision would have prevented

WMH from using barges to transport out-of-state MSW to its

Virginia landfills. C.A. App. 501. The provision would have

had no impact, however, on the only in-state solid waste that is

12

transported by vessel, which is shipped over the Chesapeake

Bay. Ibid.

c. The trucking restrictions. Well aware that substantial

amounts of out-of-state MSW are imported into Virginia on

trucks having four or more axles, the General Assembly

enacted restrictions on such vehicles that do not apply to the

smaller two or three-axle vehicles that carry mostly Virginia

waste.

First, the General Assembly prohibited landfill operators

from accepting MSW from a vehicle with four or more axles

“unless the transporter of the waste provides certification, in a

form prescribed by the Board, that the waste is free of

substances not authorized for acceptance at the facility.” Va.

Code Ann. § 10.1-1408.1.Q (the “certification requirement”).

Because virtually all out-of-state MSW that is transported by

truck is delivered in vehicles having four or more axles (C.A.

App. 482, 501-502), while the majority of Virginia MSW is

delivered to landfills in vehicles with fewer than four axles (id.

at 484), the certification requirement would have imposed a

disproportionate burden on the transportation of out-of-state

waste.

Second, the General Assembly required the Board to

develop regulations governing the “commercial transport” of

MSW by “any tractor truck semitrailer combination with four

or more axles.” Va. Code Ann. § 10.1-1454.3.A, D. Among

other things, the new regulations must require that, as a

condition of carrying MSW on Virginia roads, the owners of

such trucks make financial assurances that trucks having fewer

than four axles or carrying other cargo need not make. Jd. §

10.1-1454.3.A(2). The regulations also must provide that

containers and trailers carrying waste “be designed, constructed

and maintained so as to * * * prevent the escape of wastes and

liquids and to prevent the loss or spillage of wastes to the extent

possible in the event of an accident” (id § 10.1-1454.3.A(1))

and prohibit covered vehicles from transporting waste “unless

13

the containers carried thereon are designed, constructed, loaded,

operated and maintained in accordance with the regulations

developed pursuant to subsection A.” Jd. § 10.1-1454.3.C. The

new provisions also include spill reporting and cleanup

obligations, the violation of which is a Class 1 misdemeanor.

Id. § 10.1-1454.3.B, C.

Five-axle tractor-trailers are used to carry waste from

transfer stations to disposal sites, but are not used to collect

waste from individual generators. C.A. App. 482. Virtually all

of the out-of-state MSW transported by truck to Virginia goes

through transfer stations and is delivered on commercially

operated tractor-trailers having four or more axles. Jd. at 482,

501-502. By contrast, only about 24% of Virginia-generated

waste is processed through transfer stations and loaded onto

tractor trailers, and about one-quarter of that tonnage is carried

by Southeastern Public Service Authority (“SPSA”), a public

entity. Jd. at 483. Because SPSA is arguably exempt from the

provisions by the limitation to “commercial transport,” only

about 18% of Virginia-generated waste is affected at all by the

provision. Jbid Thus, although the new provisions purport

broadly to govern the “[t}ransportation of [mJunicipal [s]olid

and (m]edical [w]aste by [t}ruck,” in fact they apply principally

to trucks carrying MSW in interstate commerce, while leaving

unregulated the transportation of at least 76%, and as much as

82%, of Virginia’s waste.

There can be little doubt that the discriminatory effect of

the trucking provisions was intended. In his September 30,

1998 press release, Senator Bolling stated that the regulations

required by his proposed legislation “should include minimum

standards for the containers waste is transported in, as well as

an aggressive inspection and monitoring program to make sure

that waste coming to Virginia is being transported

appropriately.” Jd. at 608 (emphasis added). His January 26,

1999 memo to the Solid Waste Subcommittee also signaled his

goal of reducing the flow of interstate MSW, stating: “It is

entirely possible that these regulations could have the impact of

14

actually reducing garbage truck traffic on Virginia’s highways.”

Id. at 642. Because the provisions carve out the traffic carrying

the overwhelming majority of waste generated in Virginia, it is

obvious that the reduction that Senator Bolling anticipated was

in vehicles carrying out-of-state MSW. Governor Gilmore’s

statement linking the regulation of trucking to the goal of

reducing out-of-state waste (id. at 675) confirms that he shared

Senator Bolling’s discriminatory views.

5. Proceedings Below. Respondents WMH, Hale,

Weanack, and Charles City County jointly filed a complaint

against Governor Gilmore and other state officials, alleging that

the cap, the barging restrictions, and the trucking limitations

violated the Commerce Clause and that the barging restrictions

also were preempted by federal law. Shortly thereafter,

respondent Brunswick Waste Management Facility filed a

similar complaint, after which the two cases were consolidated.

The day before the legislation was to go into effect, the

district court preliminarily enjoined the cap and the barging

restrictions, stating that “both sets of restrictions are almost

certainly invalid under the Commerce Clause.” Pet. App. 83-

84. The court explained:

The timing of the General Assembly’s actions and the

statements made by the legislation’s chief proponents,

including Governor Gilmore, leave no room for doubt

that it was enacted with one overriding purpose: to

restrict the importation of out-of-state waste,

particularly New York waste, into the Commonwealth.

Id. at 88. The court also stated that “there is no question but

that the practical effect of both the barging restrictions and the

cap provision will be to burden the flow of out-of-state waste

across Virginia’s borders while leaving in-state waste

unaffected.” Id. at 89. See also id. at 88 (finding that the

provisions “are plainly discriminatory in both their purpose and

‘practical effect”).

15

Thereafter, the defendants filed an answer and a motion to

join New York City as an involuntary plaintiff. The answer

raised as an affirmative defense the contention that “the acts of

New York City and/or New York State to discourage or prevent

disposal of [MSW] in the City and in the State also violate the

Constitution and public policy and distort interstate

commerce.” C.A. App. 179. On plaintiffs’ motion, the district

court struck this defense (Pet. App. 147-153), noting that

defendants’ theory that New York violated the Commerce

Clause by exporting its waste was contradicted by “abundantly

clear” case law providing that “the Commerce Clause is

implicated when a state restricts the flow of waste across its

borders,” not when “it utilizes the channels of interstate

commerce to meet its waste disposal needs.” Jd. at 151

(emphasis in original). The court also denied the defendants’

motion to join New York City as a plaintiff, stating: “(E]ven if

the Commonwealth could demonstrate that the City has

somehow violated the Commerce Clause, it is not entitled to

retaliate by discriminating against interstate waste. Such ‘tit-

for-tat’ protectionism is precisely the sort of thing that the

Framers sought to avoid by giving Congress, and not the states,

authority to regulate interstate commerce.” C.A. App. 215.

After discovery, the district court granted plaintiffs’ motion

for summary judgment, holding each of the challenged

provisions invalid under the Commerce Clause.’ Finding that

“Virginia appears to have adopted measures that would

frustrate or preclude the importation of MSW at every turn”

(Pet. App. 141), the court ruled that the provisions were subject

to strict scrutiny and that they plainly failed that test. First, the

court held that the defendants had failed to demonstrate “that no

adequate, nondiscriminatory alternatives exist that would

* Because the district court’s memorandum opinion did not mention

the trucking restrictions, WMH filed a motion for clarification. The

court confirmed that “[s]ummary judgment was granted as to the

trucking provisions,” and that its memorandum opinion “appl[ied]

fully” to those provisions. Jd. at 1416.

16

protect local interests just as well as the disputed statutes,”

while plaintiffs — who were not obligated to do so — had

“offered some possible alternatives to the disputed statutes.”

Id. at 141-142. Second, the court rejected Virginia’s contention

that “the disputed statutes are demonstrably justified by a valid

factor unrelated to economic protectionism.” Jd. at 142-143

(internal quotation marks omitted). According to the court,

“[t]he tenor of public discussion * * * makes clear that Virginia

was motivated by economic protectionism, and therefore any

post-hoc efforts to shroud its actions in the cloak of

environmental conservation and resource preservation are

ineffectual.” Jd. at 144.

The Fourth Circuit affirmed in part and vacated in part.

After setting forth the extensive evidence of hostility toward

out-of-state waste on the part of the Governor and General

Assembly (id. at 31-39), the court concluded: “No reasonable

juror could find the statutory provisions at issue had a purpose

other than to reduce the flow of MSW generated outside

Virginia into Virginia for disposal.” Jd. at 39-40. The court

then proceeded to conclude that three of the provisions at issue

— the cap and the two trucking provisions — failed the

virtually per se rule of invalidity that applies to discriminatory

statutes. Jd. at 42-48, 49-51. The court concluded that an issue

of fact remained as to whether the two barging provisions were

the least discriminatory means of furthering a legitimate state

interest (id. at 48-49), but concluded that the three-river ban

was preempted by federal vessel documentation laws (id. at 57-

58). Accordingly, the court remanded for a trial on whether the

stacking limitation is the least discriminatory means of

accomplishing Virginia’s legitimate interest in preventing

contamination of its rivers from unintended MSW spills.

17

REASONS FOR DENYING THE PETITION

Petitioners urge review of three issues. The third is patently

frivolous. The first and second constitute nothing more than

quibbles with the Fourth Circuit’s application of well-

established Commerce Clause principles. None warrants

certiorari, much less overturning the decisions of both courts

below.

1. Petitioners first urge the Court to grant certiorari in order

to establish the standard applicable to statutes motivated in part

by discrimination and in part by legitimate concerns. Review

of this issue is unwarranted for several reasons.‘

First, petitioners never squarely raised this issue in the court

of appeals. Instead, they contended that our evidence was

insufficient to show that the legislature acted with

discriminatory motives, asserting that (i) we were required to

prove “that a majority or at least a significant bloc of legislators

acted with the prescribed motive” (Opening Brief of

Defendants-Appellants at 43); (ii) “the vast majority of

evidence submitted by Plaintiffs in support of their summary

judgment arguments was not admissible” (id. at 44); (iii) “[a]t

best, Plaintiffs’ evidence indicates that a few Virginia office-

holders, including the Governor, were aware of the problems

* Petitioners also imply that the Court should grant review to

determine whether discriminatory intent alone — i.e., in the absence

of facial discrimination or discriminatory effect — is enough to

trigger strict scrutiny. Pet. 15. They waived any such contention

below by conceding in their opening brief in the court of appeals:

A statute can discriminate against out-of-state interests in one of

three ways: (1) facially, (2) purposefully, or (3) in effect. If the

statute discriminates in one of these ways, the court applies a

“strict scrutiny” analysis under which the statute is invalid

unless justified by a valid factor unrelated to economic

protectionism and there are no less restrictive alternatives.

Opening Brief of Defendants-Appellants at 41 (citation omitted).

18

and dangers associated with interstate waste in Virginia” and

that “[s]uch ‘evidence’ unquestionably fails to establish

discriminatory motivations of the 138 members of the

Assembly who voted on this legislation” (id. at 45); (iv)

“Plaintiffs did not present specific evidence of intent regarding

each statute being challenged” (ibid); and (v) “[i]n any event,

the Commonwealth presented ample evidence rebutting any

notion of improper motive by the General Assembly” (id. at

46).° Indeed, petitioners obliquely acknowledge that they

raised entirely different arguments below than they do now,

stating: “In proceedings below, the Commonwealth disputed

the allegation of discriminatory motives; however, that dispute

is not at issue in this petition.” Pet. 16 n.7.

Second, petitioners have failed to demonstrate (or even

assert) that the decision of the Fourth Circuit conflicts with

either prior decisions of this Court or the decisions of any other

federal court of appeals or state supreme court.° The best they

can do is to assert that a rule that strict scrutiny applies

* Petitioners did at one point assert that we “did not even come close

to demonstrating, as a matter of law, that a majority of the Virginia

General Assembly enacted this legislation for the sole purpose of —

burdening out-of-state commerce.” Jd. at 44 (emphasis in original).

However, it is clear from the ensuing sentence that petitioners’

argument had to do with whether the statements of a few key

participants in the legislative process are sufficient to establish a

discriminatory purpose, not whether that purpose had to be exclusive.

See ibid. (“The crux of Plaintiffs’ entire case was that Virginia

Governor James S. Gilmore, III, (who is not a member of the General

Assembly) and Senator William Bolling, the sponsor of the

were hostile to the flow of waste coming into Virginia

from New York.”).

* As far as we can discern, the only appellate court to address the

question directly has held that “in order to find a dormant Commerce

Clause violation there is no requirement that discrimination must be

the ‘primary’ purpose or effect.” Harvey & Harvey, Inc. v. County

of Chester, 68 F.3d 788, 803 (3d Cir. 1995).

19

whenever the legislation was motivated in part by

discrimination is inconsistent with this Court’s Establishment

Clause jurisprudence. Pet. 14, 16, 19. Because petitioners are

unable to cite a single lower court decision finding the

Establishment Clause standard to be applicable in the

Commerce Clause area, any perceived tension with that

standard is not a basis for granting review here.’

Third, even if the Court were inclined to establish a special

standard for mixed purpose cases, this case would be an

inappropriate vehicle because, despite petitioners’ unsupported

assertion to the contrary (Pet. 5), the Fourth Circuit concluded

that discrimination against out-of-state MSW was the sole

purpose of the challenged statutes:

No reasonable juror could find the statutory

provisions at issue had a purpose other than to reduce

the flow of MSW generated outside Virginia into

” Even if cases from other areas of law were relevant, the standard

applied in equal protection cases would be more pertinent than the

Establishment Clause standard because, as in equal protection cases,

a finding that a law challenged under the Commerce Clause had a

discriminatory motivation results in strict scrutiny, not outright

invalidation as is the case in the Establishment Clause context (see,

e.g., Stone v. Graham, 449 U.S. 39 (1980) (per curiam)). In the

leading Equal Protection Clause case on the subject, this Court has

observed:

Rarely can it be said that a legislature or administrative body

operating under a broad mandate made a decision motivated

solely by a single concern, or even that a particular purpose was

the “dominant” or “primary” one. * * * When there is a proof

that a discriminatory purpose has been a motivating factor in the

decision, * * * judicial deference is no longer justified.

Village of Arlington Heights v. Metropolitan Housing Dev. Corp.,

429 U.S. 252, 265-266 (1977). Needless to say, there is no

inconsistency between the Fourth Circuit’s decision and the standard

articulated in Arlington Heights.

20

Virginia for disposal. Indeed, the very purpose the

Defendants proffer in this litigation for the enactment of

the statutory provisions at issue — to alleviate or at least

reduce health and safety threats to Virginia’s citizens

and environment created by the importation of MSW

from states with less strict limitations upon the content

of MSW than Virginia — fully supports our conclusion.

This is because an inherent component of the

Defendants’ proffered purpose of Virginia’s enactment

of the statutory provisions at issue is discrimination

against MSW generated outside Virginia.

Pet. App. 39-40 (emphasis added).*

Fourth, petitioners are simply wrong in asserting (Pet. 17)

that “the case is not cluttered by the two factors that commonly

lead to strict scrutiny” — i.e., that “none of the MSW statutes

are [sic] discriminatory on their face” and, for the three

provisions at issue here, “there has been no showing of a

discriminatory effect” (ibid. (emphasis omitted)). Although it

is undisputed that the statutes are facially neutral, this case is

very much “cluttered” by substantial (indeed, we submit,

insuperable) evidence that. the statutes discriminate in their

practical effect. The Fourth Circuit held merely that there

existed “a genuine issue of material fact” as to whether the

challenged provisions discriminate in their practical effect

against out-of-state MSW, not that there was no evidence of

discriminatory effect at all. Pet. App. 28, 30. Accordingly,

contrary to petitioners’ contention, this case does not present an

opportunity to consider whether a statute that was animated by

* As the Fourth Circuit recognized, it is well settled that the

existence of a legitimate underlying purpose for a statute that

employs intentionally discriminatory means does not immunize the

statute from strict scrutiny. See City of Philadelphia v. New Jersey,

437 U.S. 617, 627 (1978) (citing cases in which “a presumably

legitimate goal was sought to be achieved by the illegitimate means

of isolating the State from the national economy”).

21

mixed purposes, but has no discriminatory impact, nonetheless

must be subjected to strict scrutiny.

In fact, notwithstanding the Fourth Circuit’s holding that

issues of fact precluded summary judgment on this basis, the

undisputed evidence established to a mathematical certainty

that the challenged statutes have a discriminatory effect. That

showing would have necessitated application of strict scrutiny

even if there had been no evidence of a discriminatory purpose.

The overwhelming evidence of discriminatory effect hence

supplies an alternative basis for affirmance, and makes this case

an even less attractive vehicle for addressing issues relating to

manta ,

With respect to the cap, the undisputed evidence was that

the 2,000 ton-per-day limit would immediately impact six of

the seven regional landfills that together account for 97% of the

out-of-state waste that is disposed of in Virginia. C.A. App.

500, 670. Meanwhile, not a single local landfill was expected

to be affected by the cap. To the contrary, the data provided by

DEQ to the General Assembly showed that “[e]very other

landfill in Virginia is significantly below 2,000 tons.” Jd. at

673. It is hard to imagine a clearer showing of discriminatory

effect.

The Fourth Circuit found there to be a dispute of fact on the

basis of petitioners’ contention that our declarant did not have

first-hand knowledge of the future capacity needs of the local

landfills. In particular, the Fourth Circuit noted that one local

landfill had filed a request for a waiver of the cap. Pet. App.

27-28. But even if true, the fact that one local landfill might

someday need to exceed the cap (but see C.A. App. 1002) does

not render the statute nondiscriminatory. Even then, the cap

would immediately burden 85.7% (six out of seven) of the

regional landfills that account for 97% of the out-of-state

MSW, while similarly burdening at most 1.6% (one out of 63)

of the local landfills. Under this Court’s consistent case law,

that kind of massive disparity in the treatment of intrastate

22

versus interstate commerce is more than enough to demonstrate

discriminatory effect as a matter of law. See, e.g, C&A

Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 391 (1994)

(flow control ordinance that required that all waste in the town

be processed at designated transfer station “is no less

discriminatory because in-state or in-town processors are also

covered by the prohibition”); Fort Gratiot Sanitary Landfill,

Inc. v. Michigan Dep’t of Natural Res., 504 U.S. 353, 361-363

(1992) (striking down law permitting local governments to ban

out-of-county waste from their landfills even though the law

affected a substantial amount of in-state waste along with alli

out-of-state waste); Dean Milk Co. v. City of Madison, 340 U.S.

349 (1951) (invalidating ordinance prohibiting sale of milk

unless pasteurized within five miles of city even though

prohibition affected substantial amounts of in-state milk along

with all out-of-state milk); Brimmer v. Rebman, 138 U.S. 78,

81-83 (1891) (striking down prohibition on sale of meat

slaughtered more than 100 miles from point of sale even though

prohibition burdened some in-state meat producers).

The undisputed evidence also demonstrated that the

trucking provisions would have had a discriminatory effect. By

limiting the certification requirement to vehicles having four or

more axles, the General Assembly ensured that ail trucks

carrying out-of-state waste would be burdened (see C.A. App.

482, 501-502), while a substantial percentage of trucks carrying

Virginia waste would not be (id. at 484). The only dispute

involved the exact percentage of local trucks that would be

subjected to the requirement. Under the cases just cited, that

kind of dispute is insufficient to create an issue of fact as to

whether a statute discriminates.

Similarly, there is no dispute that, because it applies only to

tractor-trailors with four or more axles, the provision requiring

the promulgation of regulations governing the trucking of

MSW would burden virtually all vehicles carrying out-of-state

waste (see C.A. App. 482, 501-502) but would not affect the

vast majority of trucks carrying Virginia waste. In the district

23

court, we adduced evidence that between 76% and 82% of

Virginia waste is carried on vehicles that would not be

subjected to the truck regulations. /d. at 483. Petitioners never

disputed that, at most, 24% of Virginia waste is carried on

tractor-trailers and that the remaining 76% would not be

covered by the required regulations. They merely quibbled

with our contention that one-quarter of the Virginia waste

carried on tractor-trailers (i.e., 6% of Virginia waste) would be

exempt from the regulations on other grounds. Even accepting

that 24% and not 18% of Virginia waste would be subject to the

regulations while 100% of out-of-state would be covered, that

disparity is more than enough to constitute a discriminatory

impact.

In sum, the first issue petitioners ask the Court to address

was neither presented nor decided by the court of appeals and,

even if it had been, this case is not a good one in which to

resolve it.

2. The Fourth Circuit accepted arguendo that Virginia’s

definition of waste that may lawfully be deposited in MSW

landfills is more stringent in certain respects than the

definitions of some of Virginia’s sister states. It concluded,

however, that a cap that makes no distinction between waste

from states that have more stringent definitions than Virginia

and waste from states that have less stringent definitions is not

the least discriminatory means of ensuring that unacceptable

categories of waste do not find their way into landfills located

in Virginia. In particular, the Fourth Circuit held that a cap that

limits waste from only those states that have less stringent

definitions than Virginia’s would be less discriminatory than a

cap that limits waste from all states. Petitioners’ second issue

asks the Court to review that conclusion. Review is

unwarranted for several reasons.

First, this issue is a narrow, case-specific one that cannot be

said to recur in Commerce Clause litigation. Petitioners point

to no conflict among the circuits or with the decisions of any

24

state supreme courts. They do contend that the Fourth Circuit’s

decision “is contrary” to this Court’s decision in Maine yv.

Taylor, 477 U.S. 131 (1986), asserting that “[t]his Court’s

approval of a total ban on a particular product from all States

stands in stark contrast to the court of appeals’ interpretation.”

Pet. 21, 22 (emphasis in original). The asserted contradiction

is non-existent. In Taylor, the Court held that a ban on the

importation of live baitfish served a legitimate state interest

based on two critical findings of the magistrate: (i) Maine’s

indigenous fish would be placed at risk by parasites prevalent

in out-of-state baitfish, but not common to indigenous fish; and

(ii) non-native species inadvertently included in shipments of

live baitfish could severely disrupt Maine’s aquatic ecology.

477 U.S. at 141, 142-143, 148. Each of these two concerns

about out-of-state baitfish applied regardless of the source of

the baitfish and therefore supported a ban on all out-of-state

baitfish. In the present case, by contrast, Virginia’s interest is

limited to states whose definitions of MSW are more liberal

than Virginia’s.’

Second, before this Court could even reach petitioners’

issue, it would have to address our threshold contention that the

“legitimate justifications the State has put forward for its statute

are merely a sham or a ‘post hoc rationalization” (Taylor, 477

U.S. at 149 (quoting Hughes v. Oklahoma, 441 U.S. 322, 338

n.20 (1979))) and hence are entitled to no weight. See Pet.

App. 144 (district court’s conclusion that Virginia’s “post-hoc

_ efforts to shroud its actions in the cloak of environmental

conservation and resource preservation are ineffectual”). The

ample legislative history contains no suggestion that the

General Assembly’s hostility toward out-of-state waste,

® Petitioners do suggest that an across-the-board limit is warranted

because of the possibility that either Virginia or other states will

change their laws. Pet. 23. Because such a rationale would permit

every state not just to limit, but to ban, all out-of-state waste —

thereby ending interstate commerce in waste — it plainly is an

argument that proves too much.

ee mer

Aiea I a a a a a ca semen ms

25

particularly that from New York, was grounded in any

qualitative distinction between Virginia’s and other states’

definitions of acceptable MSW."° To the contrary, legislators

expressed concern that imported waste would prematurely

exhaust Virginia’s landfill capacity, impose burdens on

Virginia that should be borne by other states, and ruin

Virginia’s image (see pages 3-9, supra) — all of which are

improper motivations under the Commerce Clause. See, e.g.,

City of Philadelphia, 437 U.S. at 627 (“a State may not accord

its own inhabitants a preferred right of access over consumers

in other States to natural resources located within its borders”).

Because the proffered justification for the cap was an after-the-

fact invention of defendants’ counsel and their retained expert

witnesses, the cap provision fails strict scrutiny whether or not

it can be said to be the least discriminatory means of

'° Indeed, several DEQ employees admitted during depositions that

DEQ never indicated to the members of the General Assembly that

a 2,000 ton-per-day cap was necessary to control unauthorized waste

from states with less stringent definitions of MSW. See C.A. App.

754-755, 991, 1246-1247. That is hardly surprising because

petitioners’ contention (Pet. 20) that “MSW from other States is more

dangerous to the public health than MSW from Virginia” is grossly

overblown. Petitioners asserted below, for example, that North

Carolina allows “liquid blood” in the waste stream, but in fact North

Carolina exempts blood from regulation as medical waste only if it

is enclosed in an individual container of less than a teaspoon and is

segregated and stored in a secure area before offsite disposal. N.C.

Admin. Code tit. 15A, r. 13B.1202. The regulations of Maryland, the

District of Columbia, New York State and New York City are at least

as stringent in their regulation of items contaminated by blood as

Virginia’s regulations — which allow materials contaminated with

“small amounts” of blood to be mixed into the solid waste stream. 9

Va. Admin. Code § 20-120-130.D.2. There was undisputed evidence,

moreover, that medical waste and other unauthorized material

frequently has been found in waste shipments from in-state sources.

C.A. App. 872, 888, 896, 915-950.

26

accomplishing that objective. See, e.g., Hutchins v. District of

Columbia, 188 F.3d 531, 567 (D.C. Cir. 1999).

Third, the Fourth Circuit’s conclusion is clearly right.

Accepting arguendo that the rationale for the challenged

legislation really does have to do with the fact that certain states

have more lenient definitions of MSW than does Virginia, it

follows that any cap should be narrowly tailored to address only

the waste from those states. Conversely, a cap that limits waste

from other states that have similar or more stringent definitions

than Virginia plainly is not the least discriminatory means of

addressing the putative concern identified by defendants.

Finally, even if the Court were to reach the question

whether a cap limited to certain states is a less discriminatory

alternative and then conclude that it is not, that would not

change the result because we raised several other potential

alternatives that Virginia never attempted, much less proved to

be infeasible. For example, DEQ could increase inspections of

MSW arriving at landfills. See Great Atl. & Pac. Tea Co. v.

Cottrell, 424 U.S. 366, 377 (1976) (“[ijn the absence of

adequate assurance that the standards of a sister State, either as

constituted or as applied, are substantially equivalent to its own,

[a state] has the obvious alternative of applying its own

standards of inspection” to imported goods). Indeed, DEQ had

already requested and received funding to double its inspection

force, but, as of the time the summary judgment motion was

briefed, had not yet fully deployed those resources. C.A. App.

956, 959.

Virgini Id also tig! . for self-polici

For example, it could amend its regulations — which now

(9 Va. Admin. Code § 20-80-250.c) — to require landfill

operators to have trained inspectors working at all times. In

addition, the Commonwealth could require certification by

transporters that the MSW they carry contains no unauthorized

material as defined by Virginia’s regulations. One of the

27

provisions struck down in this case contains such a

requirement; we challenged that provision only because it was

limited to trucks having four or more axles and thereby

discriminated against out-of-state MSW. A properly designed,

non-discriminatory certification requirement would help to

ensure that all waste brought to disposal facilities in Virginia

meets Virginia’s regulations, without disproportionately

burdening out-of-state waste.

And if a cap of some sort were necessary to promote

effective inspections or self-policing, there clearly are less

discriminatory alternatives to the gerrymandered cap at issue

here. For example, DEQ could be directed to determine for

each landfill a cap that takes into account its topography,

operating characteristics, and other factors bearing on its ability

to be inspected effectively. Indeed, petitioners’ own witnesses

with “the application, the design and operation of the facility”

(C.A. App. 763) and that “[yJou can’t take a cookie cutter

approach to every single facility” (id. at 1073). Requiring an

individualized determination would be far more even-handed

than an arbitrary 2,000-ton-per day cap that limits the growth

of the regional landfills, while allowing local landfills to grow

without restriction regardless of their amenability to inspection

or the quality of their self-policing. Indeed, if Virginia truly

were concerned about the risks posed by the shipment of

dangerous materials to its MSW landfills, it would have

directed its regulatory efforts toward the many local landfills

that do not comply with Subtitle D and may be contaminating

the groundwater (see page 1, supra), rather than to the regional

landfills that meet or exceed these federal standards and are far

more protective of the environment.

In sum, the Fourth Circuit was clearly correct in holding

that the cap is not the least discriminatory means of addressing

Virginia’s purported concern about differences in the definition

of acceptable MSW. Moreover, the question whether the

Fourth Circuit misapplied the strict scrutiny standard is a case-

28

specific one as to which there is no conflict among the courts.

Finally, there are both threshold issues and alternative bases for

affirmance that cannot be severed from the question presented.

Accordingly, this issue is a poor candidate for review.

3. Petitioners’ final issue is whether the lower courts erred

in rejecting the contention that Virginia was justified in

discriminating against out-of-state waste because New York

supposedly violated the Commerce Clause by “dumping” waste

into interstate commerce. Once again, petitioners can point to

no case from any court that conflicts with the lower courts’

resolution of this issue. To the contrary, as the district court

noted, petitioners’ theory that New York violated the

Commerce Clause by exporting its waste was contradicted by

“abundantly clear” case law providing that “the Commerce

Clause is implicated when a state restricts the flow of waste

across its borders,” not when “it utilizes the channels of

interstate commerce to meet its waste disposal needs.” Pet.

App. 151 (emphasis in original).

Moreover, neither the State of New York nor New York

City statutorily required that New York City waste be disposed

of outside of New York. Instead, the requests for proposal

merely indicated a preference for transportation of waste by

barge (which is not inherently inconsistent with the use of in-

state disposal facilities). In other words, the City was acting as

a market participant, rather than a market regulator, which

forecloses any possibility that its actions could be deemed to

violate the Commerce Clause. See, e.g., Reeves, Inc. v. Stake,

447 U.S. 429, 437 (1980) (“There is no indication of a

constitutional plan to limit the ability of the States themselves

to operate freely in the free market.”).

In any event, even if New York’s decision to close the

Fresh Kills landfill and to express a preference for the use of

barging in its RFPs could be said to have violated the

Commerce Clause, that violation would not be a valid defense

to our claims because, as the district court explained, “[a] state

29

may not escape responsibility for violating the Commerce

Clause by pointing to another state’s violation.” Pet. App. 152-

153. It is firmly established that discrimination by one state

does not justify retaliation by another. New Energy Co. v.

Limbach, 486 U.S. 269, 278 (1988); Cottrell, 424 U.S. at 379-

380 (1976).

Finally, as the Fourth Circuit pointed out, “[e]ven assuming

arguendo that New York’s alleged conduct should legally

prevent it from bringing a constitutional challenge under the

dormant Commerce Clause to the statutory provisions at issue,

at the risk of stating the obvious, neither the State of New York

nor New York City is a’plaintiff in this litigation.” Pet. App.

56. Petitioners do not attack the Fourth Circuit’s conclusion

that the conduct of a non-party may not be raised as a defense

to the claim of a party. Accordingly, even if the Court were to

agree with petitioners that the Commerce Clause prohibits

“dumping” goods into interstate commerce, such a ruling would

not alter the result, and this case therefore is not an appropriate

vehicle for addressing the issue.

30

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

D. ALAN RUDLIN

TIMOTHY G. HAYES

SHAWN A. COPELAND

Hunton & Williams

951 E. Byrd Street

Richmond, VA 23219

(804) 788-8200

Counsel for Respondents

Hale Intermodal Marine Co.

and Brunswick Waste

Management Facility, L.L.C.

JASON S. THOMAS

Hunton & Williams

One Hanover Square

Suite 1400

Fayette Street Mall

Raleigh, NC 27602

(919) 899-3000

Counsel for Respondent

Hale Intermodal Marine Co.

and Brunswick Waste

Management Facility, L.L.C.

KENNETH S. GELLER

EVAN M. TAGER

Counsel of Record

MIRIAM R. NEMETZ

Mayer, Brown & Platt

1909 K Street, N.W.

Washington, D.C. 20006

(202) 263-3000

Counsel for Respondents

Waste Management Holdings,

Inc. and Weanack Land

Limited Partnership

B. RANDOLPH BOYD

Randolph, Boyd,

Cherry & Vaughan

14 East Main Street

Richmond, VA 23219

(804) 643- 6611

Counsel for Respondent

Charles City County

MEADE A. SPOTTS

Spotts, Fain, Chappell

* & Anderson, P.C.

411 E. Franklin Street

Suite 601

Richmond, VA 23219

(804) 788-1345

Counsel for Respondent

Brunswick Waste

Management Facility, L.L.C.

Counsel for Respondents

JANUARY 2002