NATIONAL SOLID WASTE MANAGEMENT ASSOCIATION, Appellant, v. Charles W. WILLIAMS, in his official capacity as Commissioner of the Minnesota Pollution Control Agency; Edward Garvey, in his official capacity as Director of the Minnesota Office of Environmental Assistance, Appellees.
No. 97-2987.
United States Court of Appeals, Eighth Circuit.
Submitted March 13, 1998. Decided June 12, 1998.
St. Paul asserts that under the plain language of the policy, a duty to defend is triggered only by a claim for covered damage, and not an isolated allegation in a pleading for which no damages are sought. According to St. Paul, there is no coverage because Read brought no defamation or trade libel claim based on the belittling statement. Neither the policy language nor South Dakota law supports this view. St. Paul cites several cases, but they are all distinguishable or unpersuasive. In Reliance Ins. Co. v. Shenandoah South, Inc., 81 F.3d 789, 792 (8th Cir.1996), the policy covered damages resulting from “‘oral or written publication of material that slanders or libels a person ... or disparages a person‘s goods, products, or services.‘” The plaintiff alleged the insured‘s negligent mismanagement of his theater “‘damage[d] his reputation and good will in the community.‘” Id. at 791. We held the policy did not cover the claim because the negligent mismanagement did not libel or slander the plaintiff or disparage his services. See id. at 792. In this case, the policy covers injuries caused by publicized, belittling statements. Read alleged in his complaint that MXC made a statement belittling Read‘s service to others at a hospital staff meeting, and this statement brought about his tort injury. Cf. Mulberry Square Productions, Inc. v. State Farm Fire & Cas. Co., 101 F.3d 414, 421 (5th Cir.1996) (in case involving similar policy language, pleadings did not trigger insurance coverage because plaintiff‘s complaint did not allege disparaging statements as factual basis for tort claims). In Larson v. Continental Cas. Co., 377 N.W.2d 148, 149 (S.D.1985), the court held a policy covering personal injury did not cover a racial discrimination claim against a building owner who refused to rent to the plaintiff. In Crum & Forster Ins. Co. v. Pacific Employers Ins. Co., 907 F.Supp. 312, 314 (D.S.D.1995), the court held the libel, slander, or disparagement coverage of a general liability policy did not encompass a wrongful termination action where the plaintiff merely alleged his wrongful termination injured his reputation. And in Microtec Research, Inc. v. Nationwide Mut. Ins. Co., 40 F.3d 968, 972 (9th Cir.1994), the court found no personal injury coverage because the plaintiff did not allege the insured made a statement that disparaged the plaintiff‘s reputation. In sum, St. Paul failed to carry its burden to show the general liability policy clearly does not cover Read‘s tort claim against MXC. See Bayer, 383 N.W.2d at 861.
Because St. Paul had a duty to defend Read‘s lawsuit against MXC under the general liability policy, and MXC stated at oral argument that the duty under just one policy is sufficient, we dismiss as moot MXC‘s cross-appeal asserting St. Paul had a duty to defend under the professional liability policy.
Beverly Marie Conerton, St. Paul, MN, argued (Hubert H. Humphrey III, Atty. Gen., and Dwight S. Wagenius, St. Paul, MN, on the brief), for appellee.
Before BEAM and HEANEY, Circuit Judges and KOPF,1 District Judge.
BEAM, Circuit Judge.
The National Solid Waste Management Association (the Association) appeals the district court‘s2 grant of summary judgment against it in its action asserting that two Minnesota state statutes violate the Commerce Clause of the United States Constitution. Because we find that the Association lacks standing to challenge one statute, and find that the other statute passes constitutional muster, we affirm.
I. BACKGROUND
The disposition of garbage has become a popular subject of Commerce Clause analysis in recent years. See, e.g., Ben Oehrleins and Sons and Daughter, Inc. v. Hennepin County, 115 F.3d 1372, 1376 n. 2 (8th Cir.), cert. denied, --- U.S. ---, 118 S.Ct. 629, 139 L.Ed.2d 609 (1997). This appeal is the latest round in a series of litigation spawned by the State of Minnesota‘s attempts to control the collection, processing, and disposal of waste. See id. at 1376-77.
Minnesota‘s legislature enacted the Waste Management Act in an attempt to manage solid waste disposal in that state. Among other things, the Act requires counties to implement comprehensive waste management plans.3 See
If a public entity wishes to act contrary to the county plan,
The Association is a non-profit trade association, whose members include Minnesota businesses which have waste collection and disposal contracts with various Minnesota public entities. The Association filed suit, naming Charles Williams, in his official capacity as Commissioner of the Minnesota Pollution Control Agency, and Edward Garvey in his official capacity as Director of the Minnesota Office of Environmental Assistance (the state). The Association alleged
The district court granted summary judgment in favor of the state. It held that: (1) subdivision 5 does not violate the Commerce Clause; and (2) the Association lacks standing to challenge section 115A.471.4 The Association appeals.
II. DISCUSSION
A. Standing
“Standing is the constitutional requirement, imposed by the ‘cases or controversies’ provision of Article III, that a plaintiff must allege a judicially cognizable and redressable injury in order to pursue a lawsuit.” Ben Oehrleins, 115 F.3d at 1378. In order to have standing, the Association must have suffered an injury in fact, must establish a causal connection between that injury and the Minnesota statutes it challenges, and must establish that this injury is redressable by this court. See Steel Co. v. Citizens for a Better Env‘t, --- U.S. ---, ---, 118 S.Ct. 1003, 1016-17, 140 L.Ed.2d 210 (1998). Although the Association has met these requirements regarding subdivision 5, we find that it has not met them with regard to section 115A.471.
Subdivision 5 and section 115A.471 both refer to “public entities,” but each defines that term differently. Subdivision 5 applies to:
the state, an office, agency, or institution of the state, the metropolitan council, a metropolitan agency, the metropolitan mosquito control district, the legislature, the courts, a county, a statutory or home rule charter city, a town, a school district, another special taxing district, or any contractor acting pursuant to a contract with a public entity.
However, section 115A.471 contains a different definition:
“public entity” means the state; an office, agency, or institution of the state; the metropolitan council; a metropolitan agency; the metropolitan mosquito control district; the legislature; the courts; a county; a statutory or home rule charter city; a town; a school district; another special taxing district; or any other general or special purpose unit of government in the state.
In an attempt to establish its claim of injury in fact, the Association submitted an affidavit from one of its members. The affiant makes the general assertion that the cost to public entities of complying with 115A.471 “dwarf[s] the size of [our] public entity‘s waste disposal contracts.” However, even if this assertion were proved, it would not bolster the Association‘s position. In order to establish an injury in fact, the Association must show “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks and citations omitted). The Associa-
B. Commerce Clause
The Commerce Clause provides that “Congress shall have Power ... To regulate Commerce ... among the several States.”
To ascertain whether a state activity violates the dormant Commerce Clause, we begin by determining whether the state is “regulating” the market or merely “participating” in it. See Reeves, Inc. v. Stake, 447 U.S. 429, 436-39, 100 S.Ct. 2271, 65 L.Ed.2d 244 (1980). If the state activity constitutes only market participation, then the Commerce Clause does not apply and our inquiry ends. See id. To ascertain whether a state is acting as a market participant, we ask “whether the state is actually participating in a narrowly defined market as a proprietor rather than simply regulating the actions of other private market participants.” Chance Management, Inc. v. South Dakota, 97 F.3d 1107, 1111 (8th Cir.1996), cert. denied, --- U.S. ---, 117 S.Ct. 1083, 137 L.Ed.2d 217 (1997). The state argues that subdivision 5 merely establishes parameters for the state‘s purchase of waste disposal services. The Association responds that subdivision 5, in constraining the behavior of local government units, regulates the behavior of market participants other than the state. We have not previously addressed the question of whether a local entity is equivalent to the state for purposes of market participant analysis. Other circuits have split on the issue.
The Seventh Circuit has held that when a state imposes requirements on local government without any state financial support or supervision, the state is not a participant in the project, but a regulator not within the market participant exception. W.C.M. Window Co. v. Bernardi, 730 F.2d 486, 495 (7th Cir.1984). By contrast, the Third Circuit found “no compelling analytical difference between a local government unit and central state agencies.” Trojan Tech., Inc. v. Commonwealth Pennsylvania, 916 F.2d 903, 911 (3d Cir.1990). “Both exist only through affirmative acts of the state. A municipality derives its authority from the state.” Id. Two other circuits have adopted this reasoning. See Smith Setzer & Sons, Inc. v. South Carolina Procurement Review Panel, 20 F.3d 1311, 1319-20 (4th Cir.1994); Big Country Foods, Inc. v. Board of Educ., 952 F.2d 1173, 1179 (9th Cir.1992).
We are persuaded by the reasoning of the Third Circuit. In this case, the state is performing as a market participant in directing the purchasing behavior of local governmental units. Under Minnesota state law, the legislature has unlimited authority over local governmental units. See Erickson v. Gram, 169 Minn. 69, 210 N.W. 616, 616 (1926). All of the public entities covered by subdivision 5 are creations of the state which derive their power solely from the state. We are hard pressed to fathom how an entity created by the state, controlled by the state, and subject to the absolute power of the state, should be considered an independent
When a state contracts for garbage service, it does not run afoul of the Commerce Clause by dictating by contract where the contractor delivers the waste. See SSC Corp. v. Town of Smithtown, 66 F.3d 502, 510 (2d Cir.1995) (“to the extent that a state is acting as a market participant, it may pick and choose its business partners, its terms of doing business, and its business goals—just as if it were a private party“), cert. denied, 516 U.S. 1112, 116 S.Ct. 911, 133 L.Ed.2d 842 (1996). Subdivision 5 applies only to the waste generated by public entities and does not reach beyond those parties who, like the Association‘s members, “are actually and freely dealing with the state in its business enterprise.”5 Chance Management, 97 F.3d at 1112.
Because the state‘s actions here are performed as part of its role as a purchaser of waste disposal services, it is a mere market participant and the Commerce Clause does not apply. The state is, therefore, entitled to summary judgment in its favor on the Association‘s claims.
III. CONCLUSION
For the foregoing reasons, the decision of the district court is affirmed.