SANDLANDS C & D LLC; Express Disposal Service LLC, Plaintiffs-Appellants, v. HORRY, COUNTY OF, a Political Subdivision of the State of South Carolina acting by and through its duly elected County Council; Horry County Solid Waste Authority Inc., Defendants-Appellees.
No. 13-1134
United States Court of Appeals, Fourth Circuit.
Decided: Dec. 3, 2013.
Argued: Oct. 31, 2013.
Whether a prior state judge has made a written factual finding that the circumstances in a particular case are atypical and warrant application of a mitigated sentencing range that by definition does not exceed one year is a highly relevant data point in assessing whether an individual is an armed career criminal. The majority does not think so; it is wrong. But the true error it commits is justifying its decision by sticking its head in the sand of legal artifice.
I am willing to believe, and to act on the belief, that “no one-not even the prosecutors themselves-thinks [a twenty-two-year sentence on a fifty-one-year-old mentally ill veteran is] appropriate” under the circumstances of this case. Cf. United States v. Kupa, --- F.Supp.2d ---, ---, 2013 WL 5550419, at *1 (E.D.N.Y. Oct. 9, 2013). The law affords us an opportunity to decide this case on that belief. I deeply regret the institutional ennui that precludes our doing so.
Delaware County Solid Waste Authority; Ecomaine; City And County of Honolulu; International Municipal Lawyers Association; Lancaster County Solid Waste Management Authority; Marion County, Oregon; Montgomery County, Ohio; National Association of Counties; Solid Waste Association Of North America; Solid Waste Authority of Central Ohio; Sol-
Before WILKINSON, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion, in which Judge Wilkinson and Judge Diaz joined.
DUNCAN, Circuit Judge:
Appellants Sandlands C & D, LLC (“Sandlands“) and Express Disposal Service, LLC (“EDS“) contest the validity of Horry County‘s Flow Control Ordinance, which prohibits disposal of waste generated in Horry County at any site other than a designated publicly owned landfill. The district court granted summary judgment in favor of Horry County, and appellants challenge its determination that the Ordinance violates neither the Commerce Clause nor the Equal Protection Clause. For the reasons that follow, we affirm.
I.
A.
Horry County occupies the northernmost coastal section of South Carolina. Because of its sixty-mile coastline, large geographic size, seasonal population changes, and high water table, landfill waste disposal has been “expensive and difficult.” See
On March 17, 2009, the Horry County Council enacted
The County hereby designates the disposal facilities operated by the SWA and/or public owned facilities designated by the SWA for the acceptance or disposal of acceptable waste. The dumping or depositing by any person at any place other than at the designated facilities of any acceptable waste generated within the County is prohibited.
To effect its objectives, the Ordinance sets out a detailed regulatory and enforcement framework. It defines the term “acceptable waste” as “ordinary household, municipal, institutional, commercial and industrial solid waste” excluding recyclables as well as hazardous waste, sewage, agricultural waste, biomedical waste, and certain types of nuclear waste.
The Flow Control Ordinance has been largely successful in ensuring that waste generated in Horry County is deposited at an approved landfill within the county. According to the South Carolina Solid Waste Management Annual Reports from 2009, 2010, and 2011, an SWA facility processed 689,708 out of 691,552 tons, or over 99% of the waste generated in the county during those years. J.A. 196-205.1
The remaining 1,844 tons of waste were taken to four landfills outside of the county: the Georgetown County Landfill, the Berkeley County W & S Landfill, the Oakridge Landfill, and the Richland Landfill. Horry County and Georgetown County have an intergovernmental waste-sharing agreement, predating the enactment of the Flow Control Ordinance, under which waste collected near the counties’ shared border may be taken to the other county‘s government-operated landfills. According to the SWA, much of the waste taken to the other landfills was not “acceptable waste” under the Flow Control Ordinance-in other words, it was waste, such as the hazardous material asbestos, that the SWA landfills cannot process. Horry County also acknowledged that some waste may have been removed from the
B.
The enactment of the Flow Control Ordinance altered the local economy of waste management. For example, Sandlands, which operates a private landfill for C & D waste in neighboring Marion County, South Carolina, saw a significant decrease in its business. Because the Sandlands landfill is located only two miles from the Horry County border, a significant portion of the waste deposited there used to originate in Horry County. The Ordinance now prohibits haulers from bringing Horry County waste to the Sandlands landfill in order to take advantage of its lower tipping fees. Sandlands has since struggled financially because of its inability to replace the revenue stream lost as a result of the Ordinance.
EDS operates a waste hauling service in southeastern North Carolina and northeastern South Carolina. Prior to the passage of the Flow Control Ordinance, EDS transported waste from Horry County to the Sandlands landfill and received certain benefits as a result, such as increased hours of access and special, lower tipping fees. EDS has been issued at least seventeen citations for violating the Flow Control Ordinance.
As an alternate business strategy, Sandlands attempted to open a facility to process recovered materials2 at its Marion County site, where it would have sorted general C & D debris into recyclable materials and landfill-ready waste. When Sandlands requested permission from Horry County to remove mixed C & D debris for this purpose, a representative from the Horry County Attorney‘s Office responded, “[D]ebris from a construction site that simply contains materials that have not yet been separated is still solid waste and is subject to the requirements of the ordinance.” J.A. at 69. No company has been allowed to take mixed waste generated in Horry County outside of the county, although two other companies extract recoverable materials from acceptable waste at small transfer stations within Horry County.
C.
Appellants brought an action for declaratory judgment, damages, and injunctive relief in South Carolina state court, which Horry County removed to federal court. Among other claims, appellants argued that the Flow Control Ordinance violates the Equal Protection Clauses of the United States and South Carolina Constitutions, the Commerce Clause of the United States Constitution, and the Contract Clauses of the United States and South Carolina Constitutions.3 After a hearing, the district court granted Horry County‘s motion for summary judgment as to each of the causes of action. This appeal followed.
II.
Appellants contest the district court‘s rulings on the validity of the Flow Control and torts claims. In addition, appellants argued that the Flow Control Ordinance is preempted by the South Carolina Solid Waste Policy and Management Act,
We review de novo the district court‘s grant of summary judgment. Building Graphics, Inc. v. Lennar Corp., 708 F.3d 573, 578 (4th Cir.2013). Summary judgment is appropriate when the moving party shows that there is no genuine dispute of material fact and it is entitled to judgment as a matter of law.
A.
Appellants first argue that the Flow Control Ordinance violates the Commerce Clause of the U.S. Constitution, which gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
We begin our Dormant Commerce Clause analysis by “ask[ing] whether a challenged law discriminates against interstate commerce.” Dep‘t of Revenue v. Davis, 553 U.S. 328, 338, 128 S.Ct. 1801, 170 L.Ed.2d 685 (2008). When a restriction on commerce is discriminatory-that is, it benefits in-state economic interests while burdening out-of-state economic interests-“it is virtually per se invalid.” Or. Waste Sys., 511 U.S. at 99, 114 S.Ct. 1345. The state may only overcome the presumption of unconstitutionality by showing that the protectionist measure serves a legitimate local purpose that could not be served by alternate, nondiscriminatory means. Davis, 553 U.S. at 338, 128 S.Ct. 1801; see also Maine v. Taylor, 477 U.S. 131, 138-40, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986). “Absent discrimination for the forbidden purpose,” a statute affecting interstate commerce is subject to the balancing test laid out in Pike. Davis, 553 U.S. at 338, 128 S.Ct. 1801. In such a case, the law “will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike, 397 U.S. at 142, 90 S.Ct. 844.
1.
First, we must determine whether the Flow Control Ordinance discriminates against interstate commerce. A statute will almost always violate the Dormant Commerce Clause if it “discriminates facially, in its practical effect, or in its purpose.” McBurney v. Young, 667 F.3d 454, 468 (4th Cir.2012) (internal quotations and citations omitted). In United Haulers, the Supreme Court determined that flow control ordinances favoring the government while “treat[ing] in-state private business interests exactly the same as out-of-state ones[] do not ‘discriminate against interstate commerce’ for purposes of the dormant Commerce Clause.” 550 U.S. at 345, 127 S.Ct. 1786.
As the Supreme Court reiterated in Davis, “a government function is not susceptible to standard dormant Commerce Clause scrutiny owing to its likely motivation by legitimate objectives distinct from the simple economic protectionism the Clause abhors.” 553 U.S. at 341, 128 S.Ct. 1801.5 Trash disposal is a traditional function of local government, so county waste-management ordinances can permissibly distinguish between private businesses and those controlled by states, counties, and municipalities. See United Haulers, 550 U.S. at 342, 344, 127 S.Ct. 1786. Like the ordinances in United Haulers, the Horry County Flow Control Ordinance “benefit[s] a clearly public facility.” 550 U.S. at 342, 127 S.Ct. 1786.
We now consider whether the Flow Control Ordinance treats all private businesses alike. Appellants argue that it does not and should thus be subject to the rule of per se invalidity for discriminatory statutes under Oregon Waste Systems, 511 U.S. at 99, 114 S.Ct. 1345. We reject each of their arguments because the record does not indicate that appellants have been treated differently from other private businesses.
Appellants contend that the Sandlands landfill has been treated differently from the landfill owned by neighboring Georgetown County, because that facility has continued to receive waste from Horry County, despite not being designated under the Ordinance. Under the Dormant Commerce Clause, however, the question is whether Sandlands has been treated differently from other private businesses-not other public entities. Appellants’ argument that there is no justification for differential treatment of public and private landfills misapprehends the public-private
Appellants also maintain that Horry County has discriminated against them by not allowing them to process and sort mixtures of acceptable waste and recyclables at their facility in Marion County. The district court rejected this argument and so do we, because appellants have not been treated differently from other private businesses. Sandlands and EDS could choose to separate recyclables and unacceptable waste from acceptable waste covered by the Flow Control Ordinance, just as other companies have done within Horry County. The extracted recovered materials could then be removed to their facility in Marion County.
To conclude, because no private landfills can be designated by the SWA, all private landfills are treated equally. Furthermore, all private haulers are prohibited from transporting waste from Horry County to landfills not operated by or designated by the SWA. Under the Ordinance, EDS can still haul Horry County waste to the SWA landfills, as do other local hauling companies. Therefore, the Flow Control Ordinance does not discriminate against interstate commerce.
2.
Because the Flow Control Ordinance is not discriminatory, we must con-
Here, we need not actually balance the interests laid out in Pike because the Supreme Court has already done so. See United Haulers, 550 U.S. at 346-47, 127 S.Ct. 1786. In United Haulers, the Court held that flow control ordinances do address a legitimate local public interest. Id. at 334, 127 S.Ct. 1786. It did not “decide whether the ordinances impose[d] any incidental burden on interstate commerce” because it found that “any arguable burden does not exceed the public benefits of the ordinances.” Id. at 346, 127 S.Ct. 1786. The same analysis is applicable to the Horry County Flow Control Ordinance, because it clearly confers public benefits that outweigh any conceivable burden on interstate commerce.
To begin, the Flow Control Ordinance has only an arguable effect on interstate commerce, even if it does affect intrastate commerce to some degree. Appellants have only shown that the Flow Control Ordinance affects them; they have not
Like the ordinances in United Haulers, the Horry County Ordinance provides “a convenient and effective way to finance [an] integrated package of waste disposal services.” Id. at 346, 127 S.Ct. 1786. The Ordinance creates a revenue stream through which the county can support waste management, recycling programs, and its 911 calling system. Although revenue generation alone cannot justify facial discrimination, United Haulers recognized that it can constitute a benefit under the Pike test. Id. The Ordinance also confers other “significant health and environmental benefits.” See id. at 347, 127 S.Ct. 1786. Examples include public education about recycling, increased opportunities for recycling, and the operation of a green power facility that generates electricity using landfill gas. In fact, the SWA has won statewide awards for its environmentally friendly waste-management programs.
In sum, the Horry County Flow Control Ordinance provides the same types of benefits and imposes the same types of burdens as the ordinances upheld in United Haulers. We therefore conclude that it does not violate the Dormant Commerce Clause. To hold otherwise would ignore precedents ensuring that this court does not become a superlegislature that “rigorously scrutinize[s] economic legislation passed under the auspices of the police power.” United Haulers, 550 U.S. at 347, 127 S.Ct. 1786.
3.
Appellants argue that summary judgment is not appropriate because there is a factual dispute about whether the Flow Control Ordinance discriminates against interstate commerce. The record, however, does not reveal any disputes of material fact. At summary judgment, “[a]lthough the court must draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir.2013).
Appellants allege that the SWA discriminates by allowing some haulers to take waste to landfills outside of Horry County, while penalizing EDS for attempting to do the same. The only evidence appellants cite for their argument, however, is that 1,844 tons of waste have left Horry County since 2009. In response, SWA officials testified that all Horry County waste that has not been disposed of at an SWA or another public landfill has either constituted unacceptable waste falling outside of the Ordinance or been removed without the SWA‘s knowledge or approval. Sandlands and EDS have presented no evidence to contradict this testimony, and the record does not show that EDS has been cited for taking trash to a public landfill.
B.
Finally, appellants challenge the district court‘s determination that the Flow Control Ordinance does not violate the Equal Protection Clause of the U.S. Constitution. Appellants argue that sum-
The Equal Protection Clause prohibits states from “deny[ing] to any person within its jurisdiction the equal protection of the laws.”
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
DUNCAN
CIRCUIT JUDGE