Huish Detergents, Inc. v. Warren County, Kentucky Monarch Environmental Inc.

provided constitutionally are with the jury they and fair to which are

sound judges entitled. The of the Eastern Dis- Michigan trict of should reevaluate the system through empiri- current the use of data, plan cal and statistical and devise a fair comports representation requirement of the Sixth Amendment. occurs, granting Mr.

Until Blair’s mo- (thereby tion to dismiss the indictment subjecting possible him to reindictment government), although technically case,

correct form of relief in this would actually provide no relief at all.

C. Conclusion

I would reverse the district court’s deni- al of Mr. Blair’s motion to dismiss the indictment on the basis Ovalle. Howev-

er, if the district court had been correct motion,

denying Mr. Blair’s I agree with majority that Mr. Blair’s other claims fail, would as do all claims raised his co- defendant, Blair. Connie DETERGENTS, INC.,

HUISH Plaintiff-Appellant, COUNTY, KENTUCKY; WARREN Environmental, Inc., Defendants-Appellees.

No. 98-5566. Appeals, United States Court of Sixth Circuit. Argued: April May Decided and Filed: briefed), (argued and

Dennis J. Conniff (briefed), Brown, Todd & Larisa E. Gilbert Louisville, Kentucky, for Defen- Heyburn, Environmental, Monarch dant-Appellee RYAN, BATCHELDER, and Before: CLAY, Judges. Circuit RYAN, J., opinion delivered the BATCHELDER, J., court, joined. in which 717-18), CLAY, (pp. J. delivered opinion. concurring separate

OPINION

RYAN, Judge. Circuit Inc., Detergents, challenges Huish County, enacted Warren ordinance en- Kentucky, and a franchise into Warren and Monarch tered Environmental, Inc., which pursuant is the contractor for Monarch exclusive all the solid collecting Bowling generated city waste Green, Kentucky. claim is that companion agreement ordinance and violate both so-called “dormant” Com- of the United Consti- merce Clause States the Kentucky tution and Constitution. under district court dismissed the suit 12(b)(6) for failure to state Fed.R.Civ.P. granted. which be upon may claim relief hold court Because we the district dismissing erred in Huish’s Commerce claim, we reverse.

I. County, a Re- Kentucky, issued

Warren (RFP) and considered quest Proposal for haulers inter- competitive bids trash all mu- collecting ested Green, in Bowling Ken- nicipal solid Chuppe, F. B. Doll Cynthia Frank the contract tucky. The awarded (briefed), (argued Walter M. Jones the relation- Monarch and formalized (briefed), briefed), Stephen Berger D. agreement.” in a written “franchise ship Combs, Louisville, Ken- Wyatt, Tarrant & franchise Monarch agreement, Under tucky, Plaintiff-Appellant. years five right the exclusive (1995-2000) mu- (briefed), to collect Bowling process Michael E. Caudill Bowling Green, generated Kentucky, Defendant-Appellee nicipal solid is obligated operate County, Kentucky. Green. Warren city’s process respect claim, transfer station must dispose collects and of all court took the view that the County en- “approved permit- at a landfill gaged two separate challenged activi- Kentucky,” effectively ted the State of ties: “taking over” the local waste col- out-of-state prohibiting disposal use of lection, markets; and processing, disposal The can be agreement sites. renewed for and granting Monarch the exclusive years three terms of five each and will right collect, to process, dispose and five-year automatically renew term generated waste Bowling in Green. prior by parties. notice one of the absent The court its began analysis of Huish’s The agreement provides franchise that Commerce Clause claim examining the residential, commercial, and industrial County’s prohibit to decision residents generate municipal that entities solid from independently purchasing waste col- must Bowling employ Green lection, waste; or processing, disposal to genera- arch remove that services on waste, may not own market, tors remove their and the open which the court de- they are prohibited using any compa- County’s scribed as the “takeover” of the other than Monarch. Monarch ny bills its local waste collection market. The court Bowling directly Green customers accord- held, matter, as a preliminary that ing to a fee schedule fixed the franchise County acting was as a partici- not market solely responsible Monarch is agreement; and, therefore, pant action taking this collecting payment. County The re- subject its action was portion ceives a revenues Proceeding restrictions. with a “dormant generates servicing Bowling Green busi- analysis, Commerce Clause” the district residents, nesses and and Monarch re- court concluded the County’s “take- moves the generated collection, over” of Bowling Green’s waste charge. buildings at no processing, and not did On the same day franchise violate the dormant Commerce Clause. effective, agreement became The court that the reasoned “takeover” did an passed “executing” ordinance the fran- not against discriminate interstate com- agreement incorporating chise pro- and its imposed merce and that the burden on essence, visions reference. In the ordi- interstate was commerce not excessive in agreement nance transforms the franchise County. relation to the benefits for the law. provisions into issue, operates laundry

Huish detergent As to the the district court second manufacturing facility Bowling Green. concluded that the acted as a mar- surprisingly, facility Not generates ket awarding exclusive considerable solid waste. Under the ordi- franchise to According Monarch. agreement, nance and franchise Huish court, County “purchased” district must use Monarch remove this waste. waste removal services and filed seeking Huish this lawsuit to invali- was free to choose Monarch as the Coun- date ordinance/franchise ty’s provider In light of these services. scheme, claiming that the scheme violates its conclusion market participant § the Commerce U.S.C. exception applied, the district court did not section Kentucky 164 of the Constitu- address whether the franchise tion. Monarch ran afoul The dismissed district court Huish’s Clause. complaint pursuant Fed.R.Civ.P. The court then dismissed Huish’s feder-

12(b)(6). The court first concluded that al prejudice pendent claims with is not entitled to Eleventh prejudice. state law claim This without immunity Amendment and that Huish has requisite standing bring appeal suit. With followed. perform the work II. or itself. out-of-state fact that Huish is not a member The A. STANDING industry undermine the does not outset, the de- we must address At connection between causal lacks contention that Huish fendants’ injury as a consumer. scheme bring this action. defen- standing to unconstitution- [Cjognizable injury from that, inasmuch as Huish is dants claim interstate com- against al discrimination industry, its a member of the solid waste stop does at members merce inter- injuries fall within the zone of do not ultimately whom a state class under the Commerce protected ests discriminates, customers of that The district court concluded may also as in this injured, class be case and standing, agree. Huish has we pay- is liable for where customer a involving In cases such as this presumably ... and a result ment claim, must plaintiff constitutional [product].... more for the Con- pays first, it standing: for satisfy two tests injury who this sort of sumers suffer III constitutional must meet basic Article regulation under from forbidden second, requirements; plaintiffs and satisfy the standing inter must fall within the “zone of injury III. requirements Article by guar the constitutional protected ests” Tracy, Motors v. 519 Gorp. General U.S. antee. 278, 286, 811, 117 136 L.Ed.2d 761 S.Ct. standing, (1997). III To establish Article Finally, injury can be re- Huish’s (1) injury an Huish must demonstrate: awith result. dressed favorable (2) threatened; a that actual or fact is satisfy prudential Huish must also a lim- the defendants’ causal connection between jurisdiction' itation on our further —a (3) alleged and a injury; and the conduct requirement -by showing standing that — injury will substantial likelihood that the it protect “arguably interest to seeks a Lu be redressed favorable decision. protect- within the zone of interests fall[s] 555, jan Wildlife, 504 v. U.S. Defenders of regulated by statutory provision ed or 560-61, 2130, 112 351 S.Ct. 119 L.Ed.2d guarantee invoked or constitutional Co., (1992); Coyne American Tobacco 154, 162, v. Spear, Bennett 520 U.S. suit.” (6th Cir.1999). 488, 183 494 “At the (1997); 117 L.Ed.2d 281 see S.Ct. stage, general allegations factual pleading Processing also Association Data Serv. resulting from the defendant’s injury 150, 153, Inc. v. 90 Orgs., Camp, 397 U.S. suffice, may on a motion to conduct for (1970). In S.Ct. L.Ed.2d 184 allega presum[e] general dismiss we that case, guarantee the constitutional arises are specific those facts that tions embrace Clause, is the Commerce which de- under Lujan, necessary support the claim.” prevent protectionism signed to economic (internal 561, 112 S.Ct. 2130 goods movement of and insure free (al omitted) quotation marks and citation borders, prohibiting State “laws between original). teration jealousies would excite that ... retal- find that satisfies the Huish measures” iatory among several Article requirements standing under Carbone, A& Inc. v. Town States. C III, indeed, and, the defendants do not Clarkstown, York, 383, 390, New 511 U.S. argue alleged Huish an actual otherwise. (1994). 128 L.Ed.2d 399 injury as a result of the ordi argues meets this addition- Huish that it Monarch, in nance requirement standing al because of which is forced to consequence Huish injury an falls within the pleaded zone collect, pay process, more to protected by the of interests would dispose of its than Huish we Huish agree. seeks spend purchase if it one or more of could a right compa- from a to contract with company operating protect services these ny that can its waste for out-of- ests” test. Id. at The court transport observed disposal. In mak- processing state impose ordinances did barrier and/or claim, asserting is ing this Huish its indi- interstate reducing commerce the flow purchase right vidual as a consumer state, of garbage out of the but that the services injury “being residents’ claimed forced to — boundaries, across State interest pay they do not services want”—would zone of squarely falls within the interests exist even if the imposed ordinances no protected the Commerce barrier to interstate commerce because all only producers, protects but garbage was disposed out-of-state. Id. at “ ‘may also Huish who consumers like look 703-04. But not the case here. every produc- to the free from competition injury paying higher claimed — ing protect area in the [it] Nation cost for in-state and dis- ” exploitation by Dennis v. any.’ Higgins, posal if it disappear could hire a —would 439, 450, 111 S.Ct. transport hauler to its waste out-of- H. L.Ed.2d 969 P. Hood (quoting & state for processing disposal. and/or Mond, Sons, 525, 539, Inc. v. Du Thus, Responsible Individuals Govern- (1949)). 93 L.Ed. 865 ment does not our holding. contradict on two rely defendants cases from Oehrleins, In Ben the county required arguing our sister circuits that all waste haulers to deliver waste to a grievance satisfy Huish’s does designated Eighth transfer station. The zone of interests test: Individuals for Circuit genera- held that residential waste Government, Responsible Inc. v. Washoe tors who (9th challenged the ordinance failed to Cir.1997), 110 County, F.3d 703 satisfy the zone of interests and Ben test. Ben Oehrleins Sons Oehrleins, Daughter, Hennepin County, Inc. v. 115 115 1381-82. F.3d at Reason- Cir.1997). (8th F.3d 1382 Individ- ing by that the harm suffered residential uals Responsible Government in- waste generators having pay relatively for — county volved a challenge to ordinances “narrow, high disposal bills for waste —was required that purchase all residents local,” personal, and strictly court de- garbage collection and services clared that shouldering “[l]ocal consumers company by from a the county. chosen purely the end-line regu- burden of local Unlike the ordinance and in lation are not within zone of interests case, however, ordi- of the Id. Commerce Clause.” at 1382. Responsible nances Individuals distinguish- find Ben Oehrleins be permitted Government residential cus- genera- able. The Ben Oehrleins opt requirement tomers to out of rather, allege injury; tors did not a direct dispose own garbage, of their with- allegation injury their “sole and claim any out restriction on the location of dis- they for relief is that have in- incurred elected this self- posal. Residents who creased costs because enforcement of help option exempted paying were designation requirements against hauler, county-designated fees to the (emphasis haulers.” Id. at n. 6 add- submitted provided appro- residents ed). challenging priate documentation to the hauler. In- Huish — Gov’t, ability restriction on Responsible pur- dividuals at 701. Three who apparently residents chase out-of-state waste or dis- required failed to submit the documenta- posal injury more di- services—claims sought tion for the exemption declara- rectly implicating the interests under the tory judgment ordinances violat- Moreover, Commerce we Clause. dis- ed the dormant Clause. Id. agree with the Circuit’s Eighth reasoning, at 701-02. applies gen- at least insofar it to waste explained, gen- erators. As we have

The Ninth held that these Circuit resi- commerce, directly in satisfy participate dents did not the “zone of inter- erators reads, disarming sim- the States. It guarantees to and the Commerce Clause Congress shall have plicity: “[The Power] to the interstate market them access foreign Na- regulate waste-related services. Commerce with [t]o States, tions, among the several reasons, hold Huish these we that For Const., with the Tribes.” art. Indian standing. does has Because I, § the Su- interpreted cl. 3. As holding court’s challenge the district Court, negative im- preme immunity, we do on Eleventh Amendment ability plication, restricts the States’ that here. not consider issue regulate commerce. See interstate CTS 12(b)(6) Am., Corp. Corp. Dynamics B. RULE DISMISSAL 69, 87, 95 L.Ed.2d 67 claim War- turn now to Huish’s 'We (1987). is, course, no “dormant” There scheme ren ordinance/franchise clause to be found the text of clause of the so-called “dormant” Commerce violates article I. 3 is section 8 of it Huish ade- argues has Clause. Clause; the judge-made notion pleaded a valid Commerce Clause quately that a negative implication is subsumed first, grounds: independent claim on three the affirmative declaration of clause 3 that against the scheme discriminates out-of- Congress power regulate Com- “[t]o processors by requiring state waste among merce ... the several States” at. Bowl- municipal processed waste be the dor- station; second, properly should more be called ing Green transfer aspect component mant or of the Com- discriminates out-of-state scheme merce But it is in the disposers prohibits day too late because waste outside of disposal Bowling Green to rewrite the substantial case law that third, Kentucky; and discrimi- the scheme speaks, inaccurately, “the dor- however for nates the interstate Instead, can mant Clause.” we processing by desig- waste collection and only yield to this inaccurate but settled Monarch, business, as the nating a local usage. processor waste collector and exclusive The Supreme interpreted Court has the Bowling Green. to “prohibit[] States 12(b)(6) review a Rule dismissal de ‘advancing] their own commercial George Foundry Inc. Sys., novo. Fischer curtailing the movement interests of H. Adolph Hottinger v. Maschinenbau commerce, or out of articles of either into ” (6th Cir.1995). GmbH, 1206, 55 1208 Sanitary the state.’ FoH Gratiot Land- duty complaint is to the Our construe fill, Michigan Dep’t Inc. v. Natural of plaintiff, to the light most favorable Resources, 353, 359, 112 504 U.S. S.Ct. allega- factual accepting well-pleaded 2019, (quoting 139 H.P. 119 L.Ed.2d true. Re- tions as Columbia Natural Sons, 535, 69 S.Ct. Hood & 336 U.S. at sources, Tatum, 1101, v. 1109 Inc. 58 F.3d 657). court, others, among this And has Cir.1995). (6th complaint should “[A] regu- limiting construed the appears beyond it be dismissed unless latory as well activity of counties and cities prove can plaintiff no set doubt Mgt., as States. Waste Tennessee support claim which would

facts of his Nashville Metropolitan v. Gov’t him to relief.” Fire Ins. entitle Hartford (6th 731, Cty., 130 F.3d 735 Cir. Davidson 764, 811, California, 113 Co. v. 509 U.S. cert, 1997), 1094,118 denied, 523 S.Ct. U.S. (1993) (inter- 2891, 125 L.Ed.2d 612 S.Ct. (1998). Thus, 1560, 140 L.Ed.2d 792 omitted) quotation nal marks and citations “States,” opinion where this refers to (alteration in original). defendant, included in County, Warren is designation. 1. “Dormant” Commerce Clause If ordinance discriminates grants Congress The Commerce Clause by treating among against interstate commerce power regulate commerce

713 Smithtown, (2d 502, in-state and out-of-state interests differ- Town 66 F.3d 505 former ently, benefitting the and burden- Cir.1995). latter, se ing per it is invalid unless the Carbone, In 1677, 511 U.S. S.Ct. has “no State other means to advance a the Supreme Court held that a so-called Carbone, legitimate local interest.” - flow control ordinance that required all 392, 1677; at S.Ct. see also Waste solid in the processed town to be Mgt., hand, 130 F.3d at 735. On the other a designated transfer station before leav- if law regulates evenhandedly, it will ing the town violated the dormant be upheld imposes unless the burden it on .Com- “ of, Clarkstown, merce Clause. The ‘clearly interstate commerce is town excessive ” putative York, relation local benefits.’ New agreed had to close its landfill Carbone, 390, 511'U.S. 1677 and build a new solid waste sta- transfer Inc., Church, (quoting Pike v. Bruce 387, tion. Id. at 114 S.Ct. 1677. A local 137, 142, 25 L.Ed.2d S.Ct. 174 private contractor constructed the transfer (1970)). station agreed operate five matter, preliminary

As a years, there is no at which time town buy would question that a law restricting State station price. nominal Id. To interstate waste implicates travel of station, finance the transfer guar- town Clause, and, as we have indicat- anteed a minimum waste flow to the sta- ed, equally this is so of a local ordinance. tion permitted contractor Any doubt about this fact was laid to rest charge a “tipping fee” to haulers deposit- Supreme City Court ing waste at station. The town chose Philadelphia Jersey, New the flow control ordinance as the mecha- (1978). L.Ed.2d 475 nism for ensuring the minimum waste then, the Since Court reiterated that flow. valuable, itself, garbage in. a “profitable but it is business” because operated Carbone recycling center of possessor pay “its rid of get must it. In Clarkstown, its own in func- performing words, other the article of commerce is not equivalent' performed tions to those at the itself, so much the solid waste but rather new station. transfer Carbone [collecting], the service of processing and the flow control ordinance on dormant Carbone, disposing of it.” 511 at 390- U.S. grounds. In de- its 91,114 S.Ct. 1677. fense, pointed Clarkstown to its need to arrangements Whether business be- 386, transfer finance the station. Id. at ... generators tween of 114 1677. S.Ct. The Court sided with operator ... of a waste [processing or] Carbone. The explained Court disposal-site are viewed as of gar- sales any preventing company “except the fa- or bage purchases of transportation and operator” vored local from processing services, the commercial trans- town, generated con- flow unquestionably actions have inter- deprived trol ordinance out-of-state busi- state character. The Commerce Clause nesses of áccess to the local market. Id. imposes thus some constraints on [a 389,114 words, at 1677. In other S.Ct. ability regulate State’s] to these transac- waste, offending ordinance “hoards solid tions. it, get to rid demand of Gratiot, 359, Fort 112 504 U.S. at S.Ct. preferred benefit of the processing facili- (internal omitted). 2019 quotation marks ty.” Id. at 1677. S.Ct. The Court Indeed, one of our sister circuits has ob- held that the ordinance’s discrimination served that federal clogged courts are now processors out-of-state waste was challenging with cases restrictions on invalid, per rejecting argu- se services, Clarkstown’s garbage waste-related making ment that it had legal the modern no other means to ad- battleground over the Commerce See Corp. long- SSC v. vance interest in ensuring its

714 2488, 794, 49 L.Ed.2d 220 Id. U.S. 96 S.Ct. facility. the transfer viability term of 392-94, 114 (1976), selling 1677. that it S.Ct. a resource owned or Reeves, 429, 100 see 447 U.S. produced, or into Clause reach of the Commerce The course, has no 2271. Of the State S.Ct. only industry extends the waste own,” only it has funds of “its funds exact dispos- but also to waste processing, in trust Gratiot, 353, taxpayers and holds ed 112 504 U.S. al. See Fort v. in these 2019; Mgt., Inc. its citizens. The reference Waste of Chemical S.Ct. 2009, Hunt, 334, 119 112 S.Ct. 504 funds in the taxpayer U.S. cases hands (1992); Philadelphia, City case, L.Ed.2d State, County. or in 617, 98 2531. Carbone 437 U.S. S.Ct. White, “stand for the Hughes, and Reeves a State cannot “hoard” us that teaches that, analysis proposition purposes restricting or by prohibiting solid Clause, a under dormant Commerce dispos- to an out-of-state the flow of waste capacity as acting proprietary its State facility. al may ‘favor own or seller its purchaser ” Camps New over others.’ citizens Participation 2. The Market v. found/Owatonna, Inc. Town Harri Exception son, Maine, 564, 592-93, 117 520 U.S. dormant So-called 1590, (quot 137 L.Ed.2d 852 S.Ct. implicated when are not principles 810, ing Hughes, 426 U.S. S.Ct. activity can be characterized the State’s added). 2488)(emphasis than mar participa[tion],” rather “market recently Supreme observed Court v. Massachusetts regulation. ket White exception participation that the market Inc., 460 Employers, Council Constr. 1042, 204, makes sense because the evil addressed 208, 75 L.Ed.2d 1 103 S.Ct. U.S. (1983). of a consti pros- is no indication by [the Clause] “There —the ability duties, limit plan to tutional pect that States will use custom in the freely to operate States themselves exclusionary regulations, and oth- trade Reeves, Stake, market.” free (as power of governmental er exercises 429, 2271, L.Ed.2d 100 S.Ct. of state re- opposed expenditure (1980). ex participation The market sources) to their citizens—is favor mu ception applies to States and equally are entirely absent where the States White, 204, 103 See nicipalities. in the market. buying selling if we determine Consequently, College Prepaid Bank v. Florida Sav. mar acting as a that Warren was Bd., 527 Postsecondary Expense Educ. regard any ket -, actions, proceed we need not omitted). (1999)(citation L.Ed.2d 605 in burdened consider whether actions in violation of the Com terstate commerce Challenges to the 3. Huish’s at 103 S.Ct. merce Clause. See id. Ordinance/Franchise Scheme lim- participation inquiry is The market To Huish’s Commerce Clause address the challenged program to “whether ited claim, imperative we properly it is in participation constitute^] direct state to the ordi- challenges characterize Huish’s the market.” Id. at We believe that scheme. nance/franchise (internal citation quotation marks and the the court miseharacterized district added). omitted) Supreme (emphasis activities, and mischarac- challenged participation the market applied Court analysis. The to a mistaken terization led the component to the dormant exception separated challenges district court only the in cases where (1) County’s categories: the into two funds,” see spending State was “its for waste private of the market “takeover” White, 460 at collection, disposal; and processing, Scrap Corp., v. Alexandria Hughes (2) Designation Single a. of a In- County’s the award of an exclusive Processing State collecting, pro- franchise to Monarch for Station cessing, disposing municipal waste. The defendants contend that (1), County As to the court held County acted a participant as market in participant was not a market and therefore requiring process municipal all participation not entitled to the market a single Bowling at Green transfer but that exception, its “takeover” defendants, According station. to the ’the Bowling waste-services market in Green challenged subject restriction is not did not violate the Commerce Clause. As Commerce Clause it scrutiny ap because (2), the County court held that the was peared Monarch, in an “agreement” with as acting participant awarding a market rather than in an disagree ordinance. We “exclusive franchise” Monarch. legal with both the premises factual and Therefore, court not proceed did to this argument and hold that County consider whether this “franchise” violated was acting not as market the Commerce Clause. when designated it a single pro in-state cessing for municipal site all waste. correctly

The district court observed challenged that it must evaluate each ac- First, .matter, as a factual the defen- tivity separately, Recycling, see USA dants overlook the relationship between (2d Babylon, Town 66 F.3d the ordinance and franchise Cir.1995), so, having but said the court scheme. The ordinance did contain the to do Specifically, by grouping failed so. challenged incorpo- restriction because it together several activities un- full rated the agreement by franchise ref- “takeover,” der the of a heading erence. importantly, More the distinction unique the court aspects overlooked identify legally defendants irrel- provisions two of the evant. The participant exception ordinance/franchise (1) requirement scheme: that Monarch play simply does not come into because a process all at one location within municipality “agree- its as an labels action (2) Green; Bowling prohibition Rather, on ment.” we must determine that, out-of-state also disposal. We note municipality whether the acting was agree while we Monarch acted proprietary'capacity purchaser as a or sell- regard “exclusive franchisee” for waste er with to the challenged action. collection in Bowling Here, it is clear that was Green, the district court erred in charac- in a acting proprietary capacity forcing terizing Monarch as the “exclu- municipal tó through flow sive franchisee” for disposal. city’s transfer station. The was apparently arch was not involved waste “purchasing” services all, purchased but rather these funds, “selling” public nor was party. from a third services own processing services. These factors identify challenges govern analysis Huish’s three to routinely courts’ participant exception scheme as follows: market in the waste ordinance/franchise (1) designation of a single pro- Recycling, in-state context. See USA waste; 1288-89, SSQ 1291; 515-16; station for cessing municipal 66 F.3d at GSW, prohibition on disposal; Long Cty., Georgia;, out-of-state waste Inc. v. F.2d (3) (11th Cir.1993). the award of an fran- “A govern- “exclusive 1513-14 chise” to Monarch for entity expends waste collection and mental which or risks no processing. subject At this of stage proceed- public money ... is not to the ings, vagaries Huish’s lawsuit can survive the Rule of the need be afford- market 12(b)(6) if any motion one of ed corresponding these three no freedom” under the GSW, challenges states a valid participation Commerce Clause market doctrine. See claim. By effectively forcing 999 F.2d at 1514. judg- we court’s reverse the district purchase process- city

all residents Monarch, ment, directly proceed to consider we will Huish’s ing services a far that which County’s action exceeded at to the ex- remaining arguments, least free accomplish on the private entity could purported the district court tent that SSC, 512-13; at At- 66 F.3d market. See address them. Inc. Recycling, Demolition & lantic Coast Atlantic v. Board Chosen Freeholders on b. Prohibition Out- of of (3d Cir.1995). Thus, 701, 717 48 F.3d Cty., Disposal of-State exception does participation market not act as a market County The did County’s action from not shield Warren prohibiting out-of-state dis Commerce Clause. scrutiny under the Bowling municipal posal of Green’s our the remainder of controls Carbone bought County neither nor because the sure, uni- essentially To be analysis. taxpayer with funds. disposal sold services this scheme in tary ordinance/franchise Indeed, if “agreement” even to the flow control was not identical case partic with Monarch constituted county The in Car- ordinance Carbone. the waste collection or ipation in either that all waste be required processed bone markets, partici the market Here, on at the town’s transfer station. insulate the pant exception would hand, County “contracted” the other County’s regulation separate óf the and then process Monarch to collect with market, disposal which is downstream municipal waste. But the “contract” processing mar from the collection and went further than that. Warren Dev., Timber kets. Southr-Central See provide Monarch must dictated where Wunnicke, 82, 97-98, city’s processing services—at the transfer (plurality S.Ct. L.Ed.2d explicit This station nowhere else. SSC, F.3d at 515-16. opinion); Cf. equivalent condition is the functional Centre v. Incorporated Village Rockville of in Carbone and dis- flow control ordinance Hempstead, 196 399-400 Town against criminated the interstate flow Cir.1999). (2d County’s prohibition on The out-of-state. therefore, disposal, subject out-of-state a Such discrimination constitutes restrictions per aspect violation of the dormant se “absent the clearest dealt with waste Although pro- Carbone in flow of showing that unobstructed cessing, holding applies equal itself is to solve terstate commerce unable market, disposal force to the waste com- Carbone, 511 at problem.” the local pelling the conclusion vio- 114 S.Ct. 1677. The eonclu by prohibiting lated the Commerce justification for sory its actions—that SSC, disposal. out-of-state See 66 F.3d wanted assure “safe efficient” facially discrimi- prohibition 514. This of solid disposal collection and waste—does nates out-of-state services id. satisfy stringent test. See which, per again, constitutes se violation if accept nonspecif Even we were to these itself, sufficient, to survive the interests,- the legitimate ic local goals 12(b)(6) Rule motion. explanation why offers no these goals cannot be satisfied out-of-state. See Award of “Exclusive Franchise” to c. 366-67, Gratiot, Fort 504 U.S. at Single In-State Waste Collector 2019; Mgt., 504 Chemical Waste and Processor 343-44,112 court declined to address district therefore, hold, that for all these challenge the merits reasons, claim Huish’s Commerce Clause 12(b)(6) arch’s franchise” for col- mo- “exclusive Rule survives defendants’ that processing grounds alone lection on the holding requires tion. While this and County participant. was a market The their inquiry the focus on whether in-state and County, through court reasoned that the competed out-of-state businesses aon level agreement, effectively “pur- its franchise See, playing e.g., field. Houlton Citizens’ processing chased” waste collection and Houlton, Coalition v. Town 175 F.3d disagree. respectfully services. We (1st Cir.1999); 188-89 Atlantic Coast Demolition County Recycling, & regulatory power— The used its purchasing proprietary power express opinion not its We no on this approach or —to retain by requiring Monarch’s services the potential application its to the pay residents to those ser- scheme. ordinance/franchise Stated way, County vices. another the regulatory power grant used its to an ex- III. right process Bowling clusive to collect and The district court’s dismissal of this ac- waste, private Green a result that no party REVERSED, tion is and the is RE- case accomplish open could on an The market. MANDED for further proceedings consis- County district court the observed that with opinion. tent Because we are

would have been a market had reversing the dismissal it purchased Monarch’s services with “its claim, we also REVERSE dis- funds,” and reasoned that the excep- missal the section 1983 and state law applicable County tion was still where claims. They too are REMANDED. directed its residents to purchase agree arch’s services. with the district CLAY, Judge, Circuit concurring. County court that the could have achieved agree majority’s I with the reasoning result, implicating the same without holding goes, and as far itas but I would by hiring Monarch as using proceed its exclusive waste hauler that public County hold also vio- to pay funds for the service. But by designating lated Commerce Clause rejected that in- County strategy, opting Monarch as the waste exclusive hauler and apply regulatory by stead to leverage processor for municipal appears waste. It forcing residents do the purchasing below, abundantly on clear the record and it. In so doing, County opened itself subject dispute, to serious up scrutiny. to Commerce Clause The County comprehensive instituted a monop- Supreme explicitly “rejeet[ed] Court has regula- olistic scheme which used its the contention that a action a State’s power tory single favor a provider regulator may upheld be removal, disposal waste on challenge ground Commerce Clause services, doing so eliminated other that the State could achieve the same end potential local and interstate waste ser- participant.” as a market Soutlu-Central providers from the relevant market. vices Dev., 98-99, Timber attempt I would not analy- to truncate the (1984); 81 L.Ed.2d Chemical cf. regard to segments sis of the local Mgt, Waste 504 U.S. at disposal process, majori- as does C.J., (Rehnquist, dissenting). ty as the opinion, inasmuch award- (a) holdings our Given subsections single a monopoly ed Monarch with (b) above, our understanding aspects to all respect specifically district court did not ad- County. business in Warren dress whether violated ordinance and finance by designating single and processor favor waste hauler as the exclusive waste pro- collector and in-state out- the detriment both waste, municipal cessor for it is unneces- by forcing 'of-state all who competitors sary for us to decide this issue here. We generate Bowling Green to use note some courts considering designat- the services of Monarch at rate award of an exclusive or collecting franchise, RFP, following ed Warren and Monarch. Giv- integration of way vertical en the in which provided are disposal services

the waste arrangement to its pursuant collection, haul- for waste with the given disposal, and ing, processing contractual ar- comprehensiveness and Mon- rangement between arch, violated I would hold designating the Commerce waste hauler and arch as the exclusive processor municipal waste—notwith- inappropriate court’s

standing the district the issue. I concur with failure to address respects. all other majority opinion in Anderson, BROWN; Nick M. D. Gerald Plaintiffs-Appellants, NIOTA, TENNESSEE; L.S. CITY OF Brakebill; Watkins; Lee; Eva Alan Parham, Defendants-Appellees. Joel

No. 99-5749. Appeals, United States Court Sixth Circuit. Argued April May Decided

Case Details

Case Name: Huish Detergents, Inc. v. Warren County, Kentucky Monarch Environmental Inc.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: May 31, 2000

Citation: 214 F.3d 707

Docket Number: 98-5566

Court Abbreviation: 6th Cir.