*1 Sеe, e.g., Brewster mination claim. HOLDINGS, 355, WASTE MANAGEMENT Corp., Inc. v. Dial
Lynchburg, 33 F.3d (“We (4th Cir.1994) INCORPORATED; have consis- n. 3 Hale Intermodal that, though tently recognized even we Company; Marine Weanack Land reasoning of the district disagree with Partners; City Limited Charles Coun court, may we affirm the result on differ- ty; Management Brunswick Waste grounds fully supported by if the rec- ent Facility, Plaintiffs-Appellees, ord.”)- v.
III. GILMORE, III, in his official James S. summarize, To we conclude that capacity as Governor of Common Q-Laboratory the transfer from the Virginia; wealth of John Paul Wood Z a denial of a Service must be considered ley, Jr., capacity in his official as Sec employment benefit of under USERRA. retary Resources; Natural Dennis question And there is a of fact because Treacy, Jr., capacity official his about whether the transfer was motivated Virginia Department Director of the status, by Hill’s Reserve we reverse the Quality, of Environmental Defen grant summary judg district court’s dants-Appellants. inment favor of Michelin on Hill’s transfer proceedings. claim for further and remand Besa; Campaign Virginia; Glen H. John However, we conclude that the district Hager, Honorable; Emily Couric, Sen properly granted summary judgment court ator; Margaret Senator; Whipple, to Michelin on Hill’s termination claim. Jamerson; Miner; Bruce Mark A. Accordingly, the decision of the district Young, Lila Movants. hereby part, court is affirmed in reversed No. 00-1185. part, proceed and remanded for further ings on Hill’s claim that his transfer Appeals, United States Court of Z Service violated USERRA.5 Fourth Circuit. PART, IN AFFIRMED REVERSED Argued Dec. 2000. PART, IN AND REMANDED FOR FURTHER PROCEEDINGS. Decided June regard provisions employer comply have made the same decision without with the status”). protected employee's 4323(d)(1)(A), to the chapter,” § this U.S.C.A. equity powers and to "use its full ... only 5. The termination occurred a few work- fully rights per- vindicate or benefits of transfer, ing days after Lhe there no chapter,” sons under 38 U.S.C.A. any in the record that indication Hill lost 4323(e). § provides USERRA also for an wages or benefits virtue of the transfer. attorney's pre- award fees and costs to a Therefore, prove even if Hill can vailing plaintiff. See 38 U.S.C.A. status, transfer was motivated his Reserve 4323(h)(2). Thus, § compensatory while appears it that he will not be able to establish damages might be unavailable to Hill on re- any monetary damages that he suffered be- mand, say we cannot that there is no relief to cause of the transfer. See 38 U.S.C.A. which he is entitled. note, however, 4323(d)(1)(B). § We that US- "require ERRA the district court authorizes *6 Leeth, Stewart Todd Assis-
ARGUED: *7 General, Richmond, VA, for Attorney tant Appellants. Tager, Mayer, Evan Mark DC; Platt, Washington, Timothy Brown & Williams, George Hayes, Hunton & Rich- mond, VA, Appellees. for ON BRIEF: Earley, Attorney Mark L. General of Vir- Hurd, General, H. ginia, William Solicitor Chaffe, Roger L. Assistant Attor- Senior General, Brown, F. ney Ellen Assistant General, Thro, E. Attorney William Assis- General, Richmond, VA, for Attorney tant Geller, Miriam R. Appellants. Kenneth S. Nemetz, Platt, Mayer, Washing- Brown & ton, DC; Rudlin, A. Cope- D. Alan Shawn land, Williams, Richmond, VA; Hunton & Williams, Thomas, Hunton & Ra- Jason S. NC; leigh, Randolph Boyd, Randolph, B. (Michie Richmond, VA, 10.1-1454.2; Supp. 10.1-1454.3 Cherry Vaughan, & Boyd, 2000). (the statutory provision The first Appellees. Provision) Cap caps the amount of waste KING, and Circuit Before WIDENER any that landfill located in may HAMILTON, Circuit Senior Judges, and accept.1 §Ann. Va.Code 10.1-1408.3. The (the Judge. statutory provision second Stacking Provision) requires Virginia’s Waste Man- part in in and part, Affirmed vacated (the Board) agement promulgate Board opinion. by published remanded Senior regulations governing transport the opinion. HAMILTON wrote Judge vessel, by ship, barge, MSW or other concurring wrote a Judge WIDENER loading unloading well as the and of such in that he concurs all opinion (specifying 10.1-1454.1(A). § waste. Va.Code Ann. except Part parts opinion of the court’s statutory provision This such requires IV.A, issued, in the that Part but concurs result regulations, yet which have be obtains). an Judge stacking KING wrote containerized prohibit IV.A waste on dissenting barge high. more than two containers Id. concurring part and opinion (the statutory provision The third Three in part. Ban), pertains barges, Rivers’ which prohibits transport “the commercial of haz- OPINION ... by ardous or nonhazardous solid waste HAMILTON, Judge: Senior Circuit ship, barge upon or other vessel the navi- April In March and the Common- gable Rappahanock, wаters of the James As- Virginia’s (Virginia) wealth of General Rivers, and York fullest extent con- body, sembly, legislative its enacted posed by sistent with limitations the Con- into Virginia signed law Governor United States.” stitution Va.Code which, collective- statutory provisions, five § statutory Ann. 10.1-1454.2. The fourth ly, municipal the amount of solid waste cap (the Trucking Pro- provision Certification (MSW) accepted by landfills may be vision) ac- prohibits operators landfill restrict the use of located cepting from a with four or MSW vehicle barges transport and trucks to such waste transporter of the more axles “unless the certification, §§ 10.1- pre- See Va.Code Ann. in a form provides Board, 10.1-1408.3; 1464.1(A); 1408.KQ); by the the waste scribed 10.1— limits; Provision, (v) public daily disposal Cap posed the amount of 1. Under the increase]; Virginia may [the a landfill located ac- interest will be served 2,000 (vi) (1) capacity capped per the additional is consistent cept is at either: tons (2) management average accepted by regional solid waste day or amount and local § greater. plans developed pursuant 10.1-1411.” the landfill in whichever *8 Cap (incorporating set out in amended § Provi- Id. factors Va.Code Ann. 10.1-1408.3. The 10.1-1409.1(D)). § Manage- In addition Virginia’s authorizes Waste version of sion also factors, Virginia’s Management grant requests Waste individual these ment Board if, potential "other factors it exceptions considering Board must also consider after "the health, health, environmental, transportation appropriate protect the safe- deems human infrastructure, Virginia ty people and transportation safety ánd welfare of the and im- needs,” "(i) Virginia's and natural re- pacts that environmental [an and it determines Management Virginia’s protects present Id. Waste exception] and future human sources.” environment; (ii) exception may approve safety not an and and the Board health hearing pro- cap public a on the capacity; "until is a need for the additional there locality (iii) posed has been held in the safely increase sufficient infrastructure will exist flow; (iv) requesting the increase is where the landfill the waste the increase is handle locality-imposed Id. or state-im- located.” consistent with 324 Control, Treacy.3 not authorized for ac- Environmental Dennis
free of substances Ann. facility.” challenges at the Va.Code The Plaintiffs’ action the five ceptance 10.1-1408.1(Q). Virginia statutory provisions Finally, § the fifth statu- on the basis (the they that tory provision Four or More Axle are violative of the dormant Provision) Commerce, Contract, Equal and requires develop the Board to Protec- tion Clauses of the United governing the “commercial States Constitu- regulations tion.4 declaratory The action seeks and transport” by “any tractor truck MSW injunctive relief. semitrailer combination with four or more 10.1-1454.3(A), § axles.” Va.Code Ann. published February a decision dated (D). Among things, other the Four or 2, 2000, the district court held that the five provides More Axle Provision that new Virginia statutory provisions at issue were- regulations require, as a condition of car- violative of the Constitution’s dormant roads, rying Virginia MSW on the owners Clause, Commerce and that the Three Riv- of such trucks to make financial assur- Ban Stacking ers’ and the Provision were having ances that than four trucks less violative of Supremacy the Constitution’s carrying cargo axles or other need not Clause. Management Holdings Waste v. 10.1-1454.3(A)(2). § make. Id. (Waste Management Holdings Gilmore III), (E.D.Va.2000). F.Supp.2d 87 Following the enactment of these statu- court, fronts, Before this on several tory provisions, several landfill challenge Defendants the propriety of this operators transporters of MSW and decision of the district court.5 For the Virginia county (collectively one Plain- below, reasons stated affirm in part, we tiffs)2 § commenced this 42 U.S.C. vacate in part, and remand for further action the United States District Court proceedings opinion. consistent with this for the Virginia against Eastern District of individuals, following their official (1) Governor, capacities: Virginia’s James I. (2) Gilmore; Virginia’s Secretary of Natu- Resources, (3) Woodley; ral Paul “generally John MSW includes solid waste Virginia’s households, Department generated by Director of the commercial ac- (1) statutes, Management 2. challenges The'Plaintiffs are: Waste 4. Hale two of the (Waste Holdings, Management), Inc. whose Stacking the Three Rivers' Ban and Provi- operate large affiliates several landfills in Vir- sion, on the basis that these statutes are viola- ginia accept quantities substantial Supremacy tive of the Clause of the United (2) Virginia; Wean- States Constitution. (Weanack), ack Land Limited Partners which facility owns a transfer on the James River published August In a decision dated shipments where containerized of MSW are 1999, the district court dismissed Con- barges offloaded from and onto tractor trail- tract Clause claims under Federal Rule of ers; (3) Company Hale Intermodal Marine 12(b)(6) Civil Procedure for failure to state (Hale), barging company transports, Management Holdings, MSW; claim. Waste Inc. v. (4) among things, other containerized (Waste II), City Management F.Supp.2d Gilmore County, property Charles which owns 11, 2000, Management (E.D.Va.1999). it leases to Waste for use April On landfill; (5) Manage- Brunswick Waste sponte the district court sua dismissed the *9 (Brunswick), Facility, ment L.L.C. which Equal Plaintiffs' claims under the Protection operates large owns and landfill in Bruns- propriety Clause. The of these decisions is County, Virginia. wick not before the court. reference, 3. we For ease of refer to these collectively defendants "the Defendants.” needs and institutions, waste To meet their revenue remain
tivities, non-process and 249). (J.A. viable, The economically regional industries.” each landfill Quality Environmental Department heavily disposal gen- relies on the of MSW that as of November (DEQ) reported fact, In outside MSW erated Virgi- in seventy active landfills there were Virginia comprises sev- Although parties the accepting nia MSW. enty-five percent accepted of the MSW at of those landfills many over how disagree regional operated by the five landfills states, the record accept from other MSW Management6 and almost one-hun- Waste ac- “regional” landfills clear that seven percent accepted dred of the MSW at of the out- ninety-seven percent count regional Brunswick’s landfill. Ap- in deposited Virginia. of-state waste agreements, its Man- Under host Waste ac- sixty-one “local” landfills proximately DEQ permitted dispose of over agement at all. no out-of-state waste cept 2,000 year at all per day that for the calendar tons of MSW but one reported also York, 31,1998, Ma- New ending regional December of its landfills. Prior to enact- Carolina, Washington, issue, North and ryland, statutory provisions ment of the at largest quantities exported D.C. to exceed Management expected Waste to other Virginia compared into Management in 1999. level Waste jurisdictions. states expected further that three of its five re- accept substantially gional landfills would landfills, private- regional which are they in had in more waste 1999 than 1998. substantially operated greater and have ly Landfill, City County for in- The Charles than their local counter- disposal capacity stance, 2,849 accepted approximately tons sited and constructed parts, have been in comply per day compared in order to to less past over the decade of MSW Likewise, regulations. 2,000 strict state and federal in per day with than tons 1998. agreement” 2,400 a “host Pursuant accepted approximately Brunswick located, regional in it is each county which day accepted more per tons and county the host a fee based pays landfill 2,800 Before per day than tons 1999. (excluding upon the volume of statutory provisions the enactment waste) at that location. deposited host’s issue, expected had to reach Brunswick region- agreements require These also 5,000 year end of the per day tons landfills certain services for perform al contrast, sixty- not one of By 2000. communities, providing such as their host accept one landfills located recycling and services disposal free waste has ever ac- only Virginia-generated MSW any local funding closing and/or 2,000 per day, and more than tons cepted fed- which do not meet state and landfills ever be might or two of those only one regulations. The construction eral future. that level expected to reach required landfills has tens regional these decades, City has New York For several investment, in private millions of dollars at the its residential MSW disposed of high operation face and the landfills Landfill in Staten Island. Fresh Kills in addition to the sizea- maintenance costs George Pataki New York Governor ble host fees. County; Peninsula Landfill following the Middle Management operates the Amelia Waste Center, City County Gloucester regional Landfill; Recycling the Charles located in landfills: George County King Disposal Landfill County; and the Atlantic Waste Maplewood Recy- Recycling Facility; the County. in Sussex Landfill cling Disposal Facility, located in and Waste *10 City Mayor Rudolph and New York price, option Giulia- fixed an to lease an ni announced Kills Landfill additional two barges. barge Fresh Each is ca- accepting would cease waste in December 5,000 pable carrying of in tons of MSW City Department 2001. The New York of specially constructed containers that can Sanitation, therefore, began negotiate to high. be stacked five disposal interim in contracts order Hale Management expected and Waste phase dependency out its on the Fresh that barging would commence in March or Kills Landfill. Management Waste has April Management Waste would contracts, been awarded two of those and 2,500 3,000 transport tons of per MSW much of the MSW handled under those day from Brooklyn to the James River two contracts has deposited been at its Facility, and that this waste would then be in regional Virginia. landfills In March unloaded and City delivered to the Charles contract, it bid on a third which also County Landfill disposal. for Toward this contemplates the disposal of New York- end, Management agreed Waste has generated MSW signifi- More purchase Ship- 400 American Bureau of on, cantly, Management Waste has bid ping-approved, steel double walled contain- for, primary is a contender a twenty-year $10,000 at a per ers cost of It container. 12,000 dispose contract to of all or part $5,000,000 has also invested more than per tons residential waste day from improvements at facility the James River Manhattan, Queens, Brooklyn, and the guaranteed payment and has on two Bronx. York City’s Department New off-loading cranes for containers that to- Request Sanitation’s Proposal For ex- $5,000,000. gether are worth more than presses preference that any waste re- Only a moved under this contract small amount of transported be MSW rail, by barge by Virginia transported rather than truck. inside to Virginia and/or by landfills water. Management’s response Waste contem- plates sending sixty percent of the New DEQ In June a report issued York City residential Virginia MSW to (the DEQ that, Report) indicating landfills, particularly the City Charles during alone, quarter the fourth of 1997 County contemplates Landfill. It also 788,000 imported had tons of most of this waste be will containerized time, Around the MSW. same Waste Man- and transported by barge along the James agement’s plans significantly increase River for off-loading at the James River importation its City’s of New York MSW Facility. In addition to the residential Virginia began into greater to attract no- covered existing pending MSW In July tice. State Senator contracts, Management Waste also re- Bolling, Bill chief sponsor statutory significant quantities moves of commercial provisions at issue in appeal, wrote to per day waste City from New York Virginia Attorney Earley General Mark surrounding communities. Waste Man- possibility about blocking those agement had transported a substantial plans: portion of this to its regional land- trailer, impending fills in With the closure Virginia by tractor Fresh but York, began Kills Landfill in I planning transport much of New am con- barge. pressure furtherance cerned that the of this additional plan, Hale, it negotiated importation a contract with will increase even more whereby Hale would lease to years. Waste Man- the next few If it legally possi- agement so, four barges years for five at a ble to do I would like to introduce *11 into lo- Virginia landfills during the 1999 session
legislation 29, 1998, in place September that would re- cated On Assembly General importations. dispatching he announced that he was his on such strictions environmental officials to meet top consider- currently I am legislation counterparts their from other states “to This take a number of forms. ing could in ensure that does not drown prohibit the im- could seek to legislation (J.A. 597). regional garbage.” sea of In altogeth- waste portation of out of state November Governor Gilmore im- alternative, to may I seek er. In the posed a moratorium on new landfill devel- those landfills importations limit such to waste, Secretary Woodley and instructed opment out state currently receiving legislation of their current to recommend to deal with the and to levels reflective Furthermore, However, in problem. January I not want his do importations. address, if it would be 1999 State of the Commonwealth legislation such propose to proposed legisla- existing federal or state Governor Gilmore such in violation of Specifically referring tion. to Waste Man- law. intentions, “[j]ust he noted that agement’s (J.A. 576). days ago, major company two announced Re Congressional In August import to more plans four thousand tons indicating report issued a search Service York into City Virginia per New trash only to now ranked second (J.A. 630). increase, day.” To combat this largest im Pennsylvania as the nation’s Virginia’s that he would ask he announced MSW, 2,800,000 tons in taking porter Assembly following to take the General thereafter, Shortly September on (1) barges to the use of for steps: prohibit 30, 1998, Bolling announced his Senator Virginia’s on water- transporting MSW legislation aimed intention to introduce (2) require- ways; impose permit new when the importation out-of-state (3) in Virginia; ments for landfills located January Assembly reconvened General cap may the amount of waste that be proposаls, his support 1999. In Senator (4) landfills; and deposited Virginia the Commonwealth’s Bolling highlighted inspections being of waste hauled increase waste-im newly ranking among acquired And New by truck or other means. when states, Management’s re porting Waste suggested that City Mayor York Giuliani 2,400 cently contract to remove announced obligation accept an Virginia might have per day tons of residential MSW MSW, Gilmore City’s New York Governor if not all of City, “[m]ost [which] New York that “the home state of Wash- responded by barge Virginia’s on transported will be Jefferson, in- and Madison has no ington, waterways,” impending closure of dumping New York’s becoming tention o[f] (J.A. 601). the Fresh Kills Landfill. (J.A. 635). Meanwhile, numer- grounds.” no secret of “NewTYork officials have made Virginia lawmakers and other state ous 14,000 export tons of their intent support announced their Sena- officials day currently disposed that are garbage efforts, fre- Bolling tor and the Governor’s to other in the Fresh Kills Landfill positions anti- quently couching their the vast ma appears though states. It terms. out-of-state MSW heading to jority garbage may of this be well,” Bolling warned. Virginia as Senator Gen- April Virginia’s March Id. and Governor Gil- Assembly approved eral statutory five into law the expressed signed con- more Gilmore also Governor pres- in this case. The at issue provisions increased flow of MSW cern about *12 30, may granted pursuant be to Federal Rule followed. On June ent civil action 12(b)(6). decision, 1999, the district of Civil Procedure The Defen- published in a motion for a the Plaintiffs’ of the granted sought entirety court dants dismissal (1) injunction against the Defen complaint on two preliminary the Plaintiffs’ bases: Provision, Cap of the dants’ enforcement standing that the Plaintiffs lacked to chal- Provision, and the Three Riv Stacking because lenge disputed Virginia’s laws Ban, Plain pending resolution of the vires) ers’ (i.e., authority counties lacked ultra Management Hold tiffs’ claims. Waste agreements; landfill host enter into the (Waste ings, Management v. Inc. Gilmore (2) that the Plaintiffs’ action is barred (E.D.Va.1999). I), In F.Supp.2d 64 523 sovereign immunity the doctrine of motion, the district court held granting the provided in the Eleventh Amendment. necessary made the the Plaintiffs had addition, contended that the Defendants irreparable harm and the bal showing of Plaintiffs’ each of the claims should be tipped harms their favor. Id. at ance of dismissed for failure to state a claim on the The district court further held that Finally, merits. the Defendants contend- certainly Plaintiffs would almost suc County must City ed that Charles be dis- According merits. Id. to the ceed on the plaintiff missed as a because it lacked court, provisions challenged district “the standing to creator. sue its integrated constitute ‘an and interconnect 30, 1999, in a August published On deci- discriminatory program’ whereby Virgi ed sion, the district court dismissed the Con- ‘attempted nia to isolate itself from a has for tract Clause claims failure to state a problem [the common to erect nation] claim, the remainder but denied ing against a barrier the movement of 12(b)(6) Rule ” Defendants’ motion. Waste (quoting interstate trade.’ Id. Environ Management Holdings, Inc. v. Gilmore Club, mental Tech. Council v. Sierra 98 (Waste II), Management F.Supp.2d 64 (4th Cir.1996)) (alteration 774, F.3d 786 (E.D.Va.1999). 537, 548 The district court “This,” held, original). the district court the issue of declined address whether precisely “is what the Commerce Clause City County should be dismissed Charles I, 64 Management forbids.” Waste (the plaintiff as a based on its district F.Supp.2d at 537. The Defendants filed court’s) plain- belief that each of the other a motion in appeal notice of our court al- standing tiffs had to raise the claims injunction stay preliminary for a leged. Id. at 548. motion, denied the pending appeal. We Defendants withdrew their appeal. and the Following discovery, the close of summary judg- filed a motion for Plaintiffs 24, 1999, August On the district court with to their dormant respect ment Com- granted the Plaintiffs’ motion to strike the Supremacy merce Clause and Clause Defendants’ asserted affirmative defense claims. Defendants filed a cross-mo- City allegedly that because New York had summary partial judgment tion for steps discourage taken affirmative respect constitutionality Cap to the disposal City generated of New York 2000, February again in Provision. On MSW within the borders of the State decision, the district court published York, the Plaintiffs’ constitutional New summary Plaintiffs’ motion for granted challenges they were barred insofar as entirety” “in its and denied the judgment in importing arose from their interest solid partial summary motion for City. York The Defen- Defendants’ New Management Holdings judgment. filed a Waste dants next motion to dismiss (E.D.Va.2000). III, upon F.Supp.2d failure to state a claim which relief 545 (2d ed.1995)). § p. Procedure court’s memorandum Notably, the district novo a address the con- We review de district court’s deci- separately not opinion did grant summary judg- sion to a motion for Trucking Certification stitutionality of the Finkle, Myers Axle Provision under ment. v. 950 F.2d the Four or More (4th Cir.1991). or the Commerce Clause the dormant Provi- Stacking Ban or the Three Rivers’ *13 III. Supremacy Clause. For under the
sion
appeal,
the present
reasons not relevant to
argue
The Defendants first
the
sponte
sua
dis-
district court
later
the
sovereign immunity,
doctrine of
as re
Plaintiffs’ claims under
the
missed the
Amendment,
flected in the Eleventh
bars
The Defendants
Equal Protection Clause.
disagree.
the Plaintiffs’ entire action. We
timely appeal.
noted a
The
provides
Eleventh Amendment
power
Judicial
of the United States
“[t]he
II.
any
shall not
be construed
extend to
Federal Rule of Civil Proce
Under
in
equity,
prose-
suit
law or
commenced or
56,
grant
a court should
a motion for
dure
against
by
cuted
one of the United States
pleadings,
“if the
de
summary judgment
State,
by
Citizens of another
or Citizens or
interrogatories,
positions, answers
Subjects
any Foreign
State.” U.S.
file,
with the affi
together
admissions on
Const,
Supreme
XI.
has
amend
The
Court
davits,
genu
if
there is no
any, show that
recognized
sovereign
that the doctrine of
any
fact and that
ine issue as to
material
immunity under the Eleventh Amendment
judgment
to a
moving party
the
is entitled
text
beyond
extends
the literal
of the Elev-
56(c).
as a matter of law.” Fed.R.Civ.P.
a
from
prevent
enth Amendment to
state
summary judg
a
considering
motion for
being
by one
sued
of its own citizens with-
ment,
court should review all of
the district
Maine,
out its consent. Alden v.
527 U.S.
Reeves v.
the evidence
the record.
2240,
706, 727-28, 119
144 L.Ed.2d
S.Ct.
Prods.,
Inc.,
Plumbing
530
Sanderson
(1999). Accordingly,
present
636
the
suit
2097, 2110, 147 L.Ed.2d
U.S.
120 S.Ct.
the Plaintiffs’ is barred
the Eleventh
(2000).
so, however,
“In
doing
105
unless it falls within the ex-
Amendment
court must draw all reasonable inferences
in Ex Parte
ception recognized
Young,
nonmoving party,
in favor of the
and it
(1908),
U.S.
28 S.Ct.
52 L.Ed.
credibility
not make
determinations
may
permits
which
certain suits
federal court
weigh
Id.
the evidence.”
state officers.
against
Thus,
although
court should review
Young
whole,
parte
excep
Under the Ex
it
disregard
the record as
must
tion,
enjoin
court to
a suit
federal
moving par-
all evidence favorable to the
enforcing
an unconstitu
state officer
ty
jury
required
is not
to be-
the state
is,
against
tional statute is not a suit
give
That
court should
lieve.
purposes
Eleventh Amendment.
favoring
credence to the evidence
159-60,
Id. at
28 S.Ct.
well
that “evidence
nonmovant as
un-
supporting
moving party
that is
Young
theory
parte
The
of Ex
unimpeached,
contradicted and
least
statute is
an unconstitutional
because
to the extent that that evidence comes
void,
official in the
it cannot cloak an
witnesses.”
from disinterested
immunity. Although
sovereign
state’s
has
reasoning
parte Young
of Ex
Wright
Allan
&
(quoting
Id.
9A Charles
Miller,
extended to claims for retro-
Practice and
never been
Arthur R.
Federal
20).
relief,
spective
may grant
federal courts
dants’ Br. at
The Defendants none-
prospective
injunctive
against
argue
relief
theless
that we
apply
should
it
prevent ongoing
parte
state officials to
viola-
case before us to conclude that Ex
Young
prevent
law.
does not
the Eleventh
tions of federal
barring
Amendment from
the Plaintiffs’
Transp.
Inc. v. Board
Public
CSX
suit.
(4th Cir.1998).
Works,
138 F.3d
requirement
that the violation of fed
The fallacy of the Defendants’
ongoing
eral law be
satisfied when
argument
Application
is obvious.
state officer’s enforcement
an allegedly
parte
Ex
Young doctrine has not been
threatened,
unconstitutional state law is
limited to cases
no
where
state forum is
yet
even if the threat
is not
imminent.
available to decide whether
federal
law
Assocs.,
Pryor,
Summit Medical
P.C. v.
injunctive
а plaintiff
entitles
relief. The
*14
1326,
(11th Cir.1999),
180 F.3d
1338-1341
precisely
type
case before us is
of case
denied,
1012,
1287,
cert.
529 U.S.
120 S.Ct.
parte Young
to which the Ex
doctrine
(2000).
F.Supp.2d at 543
On
Gover-
argue
keeping
Plaintiffs
favor
dispute
The Defendants next
the district
on the
basis.
in the suit
same
nor Gilmore
pos-
court’s conclusion that the Plaintiffs
standing
challenge
sess
the statutory
agree with the Defendants
We
provisions at issue.
as a
should be dismissed
Governor Gilmore
Young requires
“special
party.
parte
Ex
A.
state
sued
relation” between the
officer
Defendants,
According to the
avoid the
challenged
and the
statute to
authority
counties have no
operate
parte
Amendment’s bar. Ex
Eleventh
contract
operation
landfill for-
28 S.Ct.
Young,
U.S.
profit
accepts
authority to enforce the laws of
“General
contend,
they
Accordingly,
govern
to make
the state is not sufficient
agreements
host
counties’ actions
litiga
proper parties
ment officials the
regard
acceptance
gener-
of MSW
challenging
tion
the law.” Children’s
ated outside
are ultra vires.
Deters,
Duty, Inc. v.
Legal
Healthcare is a
*15
agreements
Since the host
form the basis
Cir.1996) (internal
(6th
92 F.3d
1416
for
litigation,
this
the Defendants reason
omitted). Thus,
quotation
“[t]he
marks
standing.
the Plaintiffs lack
a
governor
gen
mere fact that a
is under
does not
duty
assert,
eral
to enforce state laws
correctly
Defendants
As the
every
him
in
proper
Rule,”
make
a
defendant
Virginia law
which
follows “Dillon’s
constitutionality of a
attacking
action
the
that a municipal corporation possess
holds
Noel,
(1)
state statute.” Shell Oil Co. v.
only
that are:
powers
express
es
those
Cir.1979).
(1st
(2)
F.2d
ly granted by Virginia,
necessarily or
fairly implied
pow
or incidental to the
Here,
un-
although Governor Gilmore is
(3)
granted, or
to
expressly
ers
“essential
of
general duty
der a
to enforce the laws
objects
purposes
and
of the
the declared
position
top
of his
as the
Virginia by virtue
simply convenient but in
corporation, not
branch,
of the
executive
he
official
state’s
v. Board
Su
dispensable.” Richmond
duty
to enforce the chal-
specific
lacks
County,
Henrico
199 Va.
pervisors of
Thus,
statutes.
we vacate the
lenged
(1958) (internal
quota
101 S.E.2d
against him and remand with
judgment
omitted).
fair,
“Any
marks
reason
tion
court dismiss
instructions
the district
concerning
able doubt
the existence
him
in this action. The fact
as a defendant
against
courts
the
power
is resolved
and defend-
publicly
that he has
endorsed
and
is denied.” Id.
corporation
power
challenged statutes
not alter
ed the
does
Here,
§ 15.2-932
Virginia Code
analysis.
purpose
allowing
our
The
suit
“[a]ny locality” authority “to con
enjoin
grants
to
their en-
against state officials
any
profit
with
whether
or
person,
of an unconstitutional statute is
tract
forcement
garbage
pickup
for
and refuse
by enjoining
nonprofit,
the actions of a
not aided
remaining defendants/appellants, John Paul
holding that Governor Gilmore
7. Given our
action,
Treacy.
Woodley and Dennis
We note that
from this
should be dismissed
forward,
argu-
joined
all
opinion
Governor Gilmore
them in
point
when our
refers to
this
Defendants,”
they
presented
appeal.
referring
have
on
we are
to the two
ments
"the
sition,
locality
in its
and to
Wilson is
for
disposal
responsible
and
service
Lee
relating
operations
waste
of three landfills located in Vir-
enter into contracts
dis-
energy
ginia and
number of transfer stations.
posal facilities which recover
or
Among
things,
garbage,
materials from
trash and refuse.”
other
his duties include de-
(Michie 1997) veloping
submitting
perform
§
and
Ann.
15.2-932
bids
Va.Code
added).
customers,
handling
waste
services for
(emphasis
argue
Defendants
providing
Management’s
Dillon’s
services to Waste
applying
Rule
this statute
customers, negotiating
contracts with
interpretation
Virginia
results
ven-
dors, developing and
power
implementing
counties lack the
to contract for
busi-
federal, state,
plans,
dealing
that is
own
ness
disposal
not their
waste.
and local regulatory agencies and officials.
hold
court properly
We
the district
re-
jected
argu-
the Defendants’ ultra vires
deposition,
In
Lee
was
Wilson
asked to
plain reading
language
ment. A
give
opinion
working
his
“after
here in the
15.2-932,
§
light
Code
even
of Virginia
knowing
regu-
State
Rule,
every
county
grants
landfills,
Dillon’s
knowing your
you
lators and
do
authority
agree-
to enter into the host
they
think
grant you
would
an extension?”
regard,
rely
ments
issue.
we
Lee
regulatory
“[f]rom
Wilson answered
upon
following language: “[a]ny
locali-
standpoint, yes, from a political standpoint,
(J.A. 1371).
ty”
authority
has the
“to contract with any no.”
person, whether
profit
nonprofit, for
argument
The Defendants’
that Waste
garbage and
pickup
disposal
refuse
Management
standing
and Brunswick lack
services in
....”
locality
(emphasis
its
Id.
press
their constitutional claims because
added). Critically, this language does not
they
already applied
have not
an in-
limit
term disposal
disposal
of intra
tonnage
crease
their
allotment is with-
locality garbage or
pickup
refuse
as the
out
cap
merit.
If the
is allowed to take
*16
suggest.
Defendants
effect,
daily tonnage
the maximum
that
Management
Waste
may
and Brunswick
B.
receive at their landfills will be dramatical-
Defendants,
According to the
ly reduced.
Cap
pre-
The
Provision would
Management
Waste
and Brunswick lack
Management
vent Waste
and Brunswick
Provision,
standing
challenge
to
the Cap
bidding
from
on contracts while variance
they
because
did not
apply
first
for an
applications
pending.
are
The prospect tonnage
increase
their
allotment under
harm
standing.
such
confers
See Bob’s
provision.
the variance
The Defendants
Service,
Home
County,
Inc. v. Warren
argue
further
that “it has
been
even
con
(8th Cir.1985)
F.2d
(cap prohibit-
that,
regionаl
ceded
if the
landfills had
a
ing expansion
disposal facility
of waste
allotments,
applied for
tonnage
increased
until
a
granted
permit by the
pre-
state
DEQ
probably
staff
granted
would have
justiciable controversy
cap
sented
because
(the
requests.”
those
Br.
Defendants’
plaintiffs
right
denied
expand
to
their
29).
operations in the
and implied
future
an
i.e.,
In support
argument,
of this last
injury,
immediate
a reduction in the
business).
deposition testimony
plaintiffs’
Defendants cite the
value of
land As
of Lee Wilson. Lee
employed
alleged
Wilson is
as
for the
concession Waste Man-
a district manager by
Virgi-
agement
USA Waste of
that it would
receive waiver in
nia, Inc.,
allotment,
which
a subsidiary
tonnage
of Waste
its
reading
fair
of Lee
Management.
In
manager po-
testimony
his district
Wilson’s
reveals that he did not
most,
make such a concession. At
challenge
Lee
to the statutory provisions at
identified
forces with
competing
Wilson
issue. The
provides
Commerce Clause
short,
views on the matter.
opposing
that
Congress
“[t]he
shall have Power ...
the Defendants’
contention
Waste
regulate
[t]o
...
Commerce
among the
States_”
Management and
lack standing
Brunswick
several
I,
8,§
Art.
cl. 3. Su-
press their
challenge
constitutional
to
preme
precedent
Court
long
has
recog-
Cap Provision is
without merit.
nized
although
phrased
grant
regulatory power to Congress, the Com-
C.
merce Clause inherently “denies the States
the power unjustifiably to
Lastly with respect
discriminate
standing,
against or burden the
argue
the Defendants
lack
interstate flow of
Plaintiffs
articles of commerce.”
standing
challenge
Stacking
Oregon
Sys.
Provi
Waste
sion,
Ban,
Department
v.
the Three Rivers’
Envtl. Quality,
the Four
511 U.S.
93, 98,
or More Axle Provision
S.Ct.
respective
because
sions will be to the ex apply We following allowed federal law. Virginia tent Code two-tier approach in determining § (barge Ann. 10.1-1454.1 regulations shall constitutional ity of a statutory provision stacking only include limits challenged “to extent un der law”); thе dormant § allowable under Commerce federal 10.1— Clause: (Three 1454.2 Rivers’ will Ban be enforced tier, The first a virtually per se rule of only to the “extent consistent with limita invalidity, applies where a state law dis- tions imposed by the Constitution of the facially, effect, criminates in its practical States”); § (regula United 10.1-1454.3 or in purpose. its In order for a law to tions under Four or More Axle Provision scrutiny, survive such the state must only be enforced “to the extent allow prove that the discriminatory law is de- law”). able under federal disagree. We monstrably justified by a valid factor saving upon clauses which the De- unrelated to protectionism, economic rely do not prevent fendants the Plaintiffs and that there are no nondiseriminatory challenging Provision, the Stacking adequate alternatives preserve the lo- Ban, the Three Rivers’ or the Four or cal interests at stake.... *17 Provision, More Axle language because the The second applies tier if a statute of those clauses is repugnant to the regulates evenhandedly and only indi- straightforward, limiting language of the rectly affects interstate commerce. In respective statutory provisions. Looney v. case, that the law is valid unless the Commonwealth, 825, 753, 145 133 Va. S.E. burdens on are clearly commerce exces- (1926) (“It 755 is well that saving settled sive in putative relation to the local ben- clauses which are inconsistent with the efits. body of rejected an act are and disregard- void.”); ed as ineffective and see also Club, Envtl. Tech. v. Council Sierra Construction, Sutherland on Statutory (4th Cir.1996) (internal F.3d quo- (same). § 47:12 omitted); tation marks and citations see also Kentucky Eastern Resources v. Fiscal V. Magoffin County, Court 127 F.3d (6th Cir.1997) (“A We now turn to the address merits of 540 statute can discrimi- the Plaintiffs’ dormant Commerce Clause nate against out-of-state interests in three 2,000 day (b) per tons (a) close of MSW facially, purposeful- ways:
different effect.”). argue that from this (c) The Plaintiffs MSW. in ly, practical evidence, juror only could a reasonable
A. allowed to Cap if the Provision is find that Here, agree are in parties the effect, and impose it will a real sub- take at issue statutory provisions that the ment outside generated on burden stantial MSW discriminatory against facially are not all, impacting barely, if at while Virginia Thus, Virginia. outside generated MSW Virginia. Specifically, in generated MSW statutory the must determine whether we permanent access to burden is less the discriminate issue would provisions at disposal. Virginia outside generated MSW against argue the Defendants that response, or were enacted for practical in their effect legally insuffi- Plaintiffs’ evidence the discriminating against purpose the Quite identify did not Lee outside cient because Wilson generated MSW present questions testimony provided no obviously, inquiries both for his basis question to either If the answer personal of fact. that he had to believe reason scrutiny analysis. apply strict yes, we information. Further- knowledge of this more, that Lee Wil- argue the Defendants
B. by contradicted their testimony is son’s Public Au- that the Southeastern evidence (SPA Landfill), which ac- thority Landfill following Plaintiffs offer MSW, operates exclusively Virginia cepts of their contention support evidence reach already expects cap near would discriminate Cap Provision Moreover, level soon. the Defendants generated outside against MSW Cap effect Provision argue, the on First, the Plaintiffs practical effect. its by the Landfill is demonstrated the SPA report issued upon a November rely injunction against prior fact that that, DEQ, respect reporting Provision, the Cap of the SPA enforcement re large the seven received MSW tonnage an increased applied Landfill approximately in Virginia, landfills gional Cap Provision. allotment under ninety-seven percent is MSW only two of Virginia, while response argue The Plaintiffs landfills sixty-three small local his testi- ample had basis for Lee Wilson remaining approximately accepted knowledge expe- mony upon based his Second, rely the Plaintiffs percent. three industry and based in the rience by Lee stаtement Wilson upon sworn DEQ’s report. November 1998 With upon that all knowledge personal that he has Landfill, the Plaintiffs to the SPA regard landfills in Vir large regional seven DEQ *18 that on note December County the Gloucester ginia, except for Bolling that the SPA to Senator reported landfill, cap under a local operates which 1,540 per tons of MSW Landfill receives of more 2,000 day, disposed have per tons ap- the SPA Landfill day and that when 2,000 in the per day of MSW than tons allotment, in tonnage an plied for increase to do reasonably expected can be past to exceed the expected clear that it made it contrast, further By in future. he so the when occasions its only on “rare” cap stated, sixty- approximately none of the for re- waste-to-energy plant is shutdown Vir principally landfills that three receive (J.A. 1002). pairs. any receive amount ginia-generated MSW reviewing After argu- evidence and The obvious practical focus of the effect issue, ments offered both sides on this inquiry upon practical discernable genuine we conclude that a issue of materi- effect that a challenged statutory provision al fact regarding exists whether the Cap has or would upon have interstate com- in practical Provision discriminates its ef- merce as opposed to intrastate commerce. against fect generated MSW outside Virgi- Logic dictates that for this purpose, the Thus, nia. the Plaintiffs are not entitled to only Plaintiffs are required to show how summary judgment in their favor with re- Stacking Provision and the Three Riv- spect Ban, to this issue. enforced, ers’ if negatively would im-
pact interstate commerce to a greater de- gree than intrastate they commerce. This 2. done, have and the Defendants have not With respect Stacking Provision genuine created a issue of material fact on Ban, and the Three Rivers’ the Defendants the issue. not dispute greater do that a far amount of generated MSW Virginia, outside as com- pared to generated Virginia, MSW inside shipped Plaintiffs, in specialized According to the containers on
barges Trucking on Virginia’s waterways for ulti- Certification Provision and the Provision, mate in Four or disposal enforced, landfills in More Axle if Virgi- located Likewise, nia. would have a discriminatory impact Defendants do not dis- upon pute that generated Hale and MSW Management Virginia Waste outside because virtually had proposals, prior generated serious all MSW to the enact- Virgi outside ment of nia is statutory provisions issue, delivered to landfills in vehicles with whereby axles, four Hale would or more barges lease four while the majority of years generated five MSW Management, Waste which inside Virginia is deliv Waste ered to Management in turn landfills in would use in vehicles with less than four transporting generated MSW in axles. We New York have reviewed both the Virginia Virginia on evidence offered waterways for the Plaintiffs in sup dis- posal port in landfills in this assertion located Fi- and the evidence nally, offered by the Defendants dispute do not Defendants contest in the that light enforcement of the most favorable to Stacking Provision the Defendants. It would say more than double suffices to the cost of the record ship- reflects a ping by barge genuine MSW on issue of material fact regarding water- ways. whether the Trucking Certification Provi Provision, sion and the Four or More Axle Nevertheless, the argue Defendants enforced, if would discriminate against the Plaintiffs’ evidence is insufficient to generated MSW prac establish that the Stacking Provision and tical effect. the Three Rivers’ Ban discriminates in practical effect against C. out-side Virginia because the Plaintiffs failed to present any whether, evidence establishing We now ask viewing the evi- not, been, there is never has dence the record in the light most favor- never any would be barging Defendants, interest to the drawing able all *19 generated MSW inside Virginia. The favor, De- reasonable inferences their rea- fendants offer no authority citation of jurors sonable Virginia’s could find that argument this and we why. Assembly understand General statutory enacted the Manage- that Waste reports Then came a discriminato- without at issue provisions $20,000,000investment making a ment was ry purpose. facility. point, At recognized been in the James River have factors Several decisionmaking a to political of whether a movement curb probative the wheels of discriminatory by a motivated body was Virgi- outside generated flow of MSW (1) of a “con- intent, evidence including: borders of entering from nia by the deci- actions of pattern” sistent co- was to turn. The movement began impacting body disparately sionmaking and by Bolling Gov- Senator spearheaded per- class of particular aof members Gilmore. ernor (2) sons; background historical 30, 1998, Bolling Senator September On decision, take into account may which by the de- state- and formal any history press of discrimination a release issued it jurisdiction cisionmaking body his intention to intro- pertaining to ment (3) of specific sequence represents; of Management Act “The Solid Waste duce deci- particular leading up to events Virginia’s Gen- 1999” for consideration including any sig- challenged, being sion legislative Assembly during its 1999 eral proce- from normal departures nificant Bolling’s statement be- session. Senator (4) dures; statements contemporary sta- noting Virginia’s then-current gan by on the record or by decisionmakers largest importer MSW tus as the second meetings. minutes of their further noted that in the nation. He County, 48 v. Corp. Dev. Calvert Sylvia currently state waste of the out of “[m]ost (4th Cir.1995). F.3d York, in New originates coming Virginia in this case es- the record conclude We amounts also come although significant juror could that no reasonable tablishes the District of Columbia statutory provi- enacting the that in find (J.A. 601). Senator Maryland.” state Assembly Virginia’s General issue sions of factors a number Bolling then listed discriminatory purpose. a without acted pressure increase opined that he would Furthermore, in this case es- the record amounts of dramatically larger import juror could that no reasonable tablishes In this generated MSW outside statutory provi- signing find Bolling cited an announce- regard, Senator into Governor Gilmore at issue law sions that it had Management ment Waste discriminatory purpose. without acted contract with into a new New entered the historical upon rest Our conclusions 2,400 tons of City import York sequence of events background of and York’s intent day Virginia; into New Assembly’s en- leading up to the General 14,000 day upon tons of MSW export signing and Governor Gilmore’s actment landfill, the Kills vast closing of the Fresh provisions at issue. statutory law the into heading to be majority appeared of which Assembly and the General Gover- of the then- plans and the Virginia; that, 1997,Virgi- learned as of Gilmore nor MSW, largest importer Penn- nation’s largest second had become nation’s nia legislative aggressive MSW,8 sylvania, to enact widely Next came the importer the amount of MSW measures to reduce City was news that York reported New Pennsylvania from be- landfill the Fresh Kills to close planning Pennsylvania. into ing imported more of its MSW. exporting begin MSW-importer Virginia’s two ing Service number Congressional Research Both the DEQ ranking. announc- reports issued in 1998 and the *20 statement then Bolling’s Senator stated: troduction of The Solid Manage- Waste may why Virginians ask should be ment “Some Act of 1999: large about the of out concerned volume of “There is tremendous excess capacity currently receiving? state waste we are Virginia’s today. landfills If we don’t legitimate While there are number of act cap now to the total amount of waste concerns, following are some of the disposed can be of in Virginia’s (J.A. 601). important.” most Senator landfills, the amount of being waste Bolling then to proceeded following list the brought Virginia to from other states (1) continuing four reasons: to allow Virgi- will increase significantly in the next few limited landfill space nia’s to be consumed years. caps Such are only effective by generated Virginia may MSW outside way limiting the amount waste of of ability Virginia harm the properly to that is being imported Virginia, to come; dispose of its own in years waste to preserving our current capacity landfill (2) generated because MSW Virgi- outside generations Virginians.” for future nia is by handled a number of vendors (J.A. 607) added). (emphasis being transported Virginia, before Vir- later, Three months on January ability ginia’s satisfactory to have a level of 1999, Governor press Gilmore issued a re- confidence about the nature of the waste it containing lease the text of a letter he sent (3) limited; large receives is amount of City Mayor New York Rudolph Giuliani Virginia that Vir- day. the same The letter reads: ginia currently receiving poten- “has the Mayor Dear Giuliani: harming Virginia’s tial of im- legacy and (4) age”; potential negative I greatly am by your concerned recent impact Virginia’s environmental on land comments regarding the transport of (J.A. the “massive operations.” landfill City’s New York municipal waste to Vir- 602). Bolling Senator then stated that it ginia policy you and the announced in was his belief that: December to exports increase of waste neighboring states. Like millions of Virginia ... adopt must act now to people living Florida, from Maine to I comprehensive management solid waste am offended your suggestion that policy century. for the 21st a poli- Such New York’s substantial cultural achieve- cy must assure that Virginia’s solid ments, are, they such as obligates Virgi- first, disposal needs are addressed nia and other accept your gar- states to potential adverse environmental bage. Let me you assure that the home impacts associated with massive landfill state Washington, Jefferson, and controlled, operations are and that the Madison has no becoming intention of important legacy Virginia pre- New York’sdumping grounds. served. weeks, past company Over the two one (J.A. 602). end,” “Toward this Senator has tripled shipments its stated, Bolling today my then “I announce municipal New York’s waste to intention to introduce The Solid Waste 3,000 approximately landfills to tons Management Act of 1999 for consideration day. company that it reports also during legislative the 1999 session.” Id. expects shipments roughly increase press accompanying year release his 2.2 million tons per by 2002. Al- statement, formal Bolling ready, Virginia larg- Senator echoed ranks as the second waste, protectionist motivation in- importer behind his est of municipal solid *21 water- barges Virginia’s trash on high- ban This is Pennsylvania. only behind ways. ly unacceptable. added). (J.A. 635) (emphasis New York problem
I understand that most cities It is one City faces. 26, 1999, Bolling January Senator On area, you an urban As the nation share. to with a memorandum promptly followed your facilities within have landfill do not the Solid Waste Subcom- the members of However, with agree I cannot locality. Agri- on mittee of Senate Committee the. only solution is that the conclusion your culture, Natural Re- Conservation your waste to send sources, stating: rural many large and has Northeast is issues that important the most One of find you that could hope I would areas. during year’s this ses- will discussed be your problem within your a solution Assembly is sion of the General der rivers, your gar- most region. Unlike surrounding Virginia’s solid bate as well as south. can flow north bage many in management practices. While that New York is you agree I with have been con- Assembly the General finest cultur- with some of the great city time, for cerned about this issue some Virginia in the world. But al amenities page prom- on “front the issue has taken state, history, cul- deep great is a weeks, primarily in the last few inence” duty to I have a ture and tradition. that has been emphasis due to the natural and protection ensure the I imports. out state waste placed on of and a Virginia solu- historic resources you with some writing provide am problem trash growing to this tion information on this issue. background fulfilling duty. my essential to n Earlier this Department of year, yours, Very truly their Quality published Environmental report quantifying written
first being placed amount of waste that was Gilmore, III James S. Virginia’s Surprisingly, landfills. Virginia was re- indicated report Governor garbage million tons of ceiving 3.2 added). 633-34) (J.A. (emphasis states, New York. New primarily other after the Governor issued Just a week 60% approximately accounted for York release, announced press the Governor his imports, imports of our total waste pro- that he was press in another release of our approximately 30% .accounted be Bolling would posing, and Senator on these deposits. landfill Based .total of, intended to legislation patron the- chief identified as the findings, Virginia was becoming the na- Virginia from prevent of waste largest importer second tion’s, dumping ground. Specifically, nation. stated:
Governor garbage Unfortunately, the amount grown has being imported Washington, Jeffer- The home state That is dramatically past year. in the son, has no intention of and Madison closure impending due to the dumping primarily nation’s becoming landfill in New York the Fresh Kills I’ve asked why That grounds.... Manage- fact that City, and the Waste these bills Bolling sponsor Senator ment, Inc., large who owns most of regulations increase state on that will Virginia, has re- landfills landfills, regional daily deposits, landfill cap ceived the contract to handle the reloca- ginia: majority “The vast of the municipal tion of the Fresh Kills waste stream. solid waste being received at the seven
regional in Virginia landfills comes from other states. While percentage the of out large [T]hese and increasing waste de- of state waste statewide is approximately posits are prematurely exhausting Virgi- 30%, the percentage of out of state waste fact, nia’s limited capacity. landfill In at the seven regional landfills is 71%.” the Department Quali- of Environmental (J.A. 667). On day, the same Senator Boll- ty has estimated our current landfill ing personally the addressed Solid Waste capacity could years be exhausted 20 Subcommittee and verbally reassured com- sooner than would otherwise be the mittee members that most local landfills in case. This means that we may have to Virginia accept less than one hundred tons site an generation entire of new landfills day, aMSW and thus would not be in Virginia years sooner than we 2,000 affected per day ton cap. The would otherwise have to do simply sо record also our contains transcripts because current landfill space is be- speeches on the floor of ing up by filled waste from other General As- states.
sembly by delegates two to the General Assembly and general reaction of fel- [Tjhese deposits could create long low delegates. The transcripts establish term problems environmental for Virgi- the General Assembly’s general antipathy ... nia. While we have no choice but to toward generated MSW outside waste, assume this burden for our own First, one delegate to the General Assem- we obligation should feel no to assume “ bly queried: ‘Do we want to be known as that burden for the waste of other ” (J.A. 1007). the capital of garbage?’ His states. query was met with a chorus of nos. He Finally, I suggest would that becoming queried: then ‘“Maybe we need a new “King nation’s of Trash” is not con- bumper of Virginia sticker-instead is for sistent with the image we have tried to lovers, what about is for garbage? promote for Virginia.... How can we special Or how about a license plate with a possibly promote Virginia as the Silicon ” dumpster it.’ Again, on Id. the record Dominion of the 21st century while we shows a chorus of nos. Finally, Delegate idly by stand and allow Virginia to be- Williams lamented before the General As- come largest importer garbage “ sembly: What a message we are send- the nation. home, ing, buy a great live Com- (J.A. 637-38). monwealth, the importer number one A days few after Bolling Senator issued ” garbage.’ Id. delegate Another to the quoted memorandum, above in re- Assembly General explained: sponse to a request by senator, another he [cap provision] “This is the second bill in issued another memorandum to the Sen- the Governor’s package that deals with ate’s Solid Waste containing Subcommittee problem the waste having we are additional regarding information the im- I and consider it important the most bill portation generated Virgi- outside governor’s package.... nia Virginia’s into bill regional [T]his landfills. In memorandum, really gets is the one that Bolling Senator at the dou- cleаrly potential outlined the bling of waste discriminatory the last two or three impact upon MSW generated years outside Vir- at our landfills and potential to whether respect fact exists in the next two again that waste
double
enacted with dis-
at issue were
statutes
years.”
three
for neutral reasons.
criminatory intent or
(alteration
original).
Id.
at-
direct our
the Defendants
support,
shows
just outlined
The evidence
in a
post-enactment
statement
tention to
guberna
legislative
unmistakably the
Bolling to
by Senator
sworn declaration
in the
further increases
opposition
torial
statutory
sponsored the
the effect that he
Virgi
of MSW
volume
because of his concern
provisions at issue
*23
ul
Virginia
of
for
crossing
borders
nia
the
in
of
growth
the volume
rapid
over the
re
Virginia’s
in
seven
placement
timate
Virginia
landfills
being deposited
MSW
juror
reasonable
No
gional
landfills.9
of that MSW.
of the source”
“regardless
at issue
statutory provisions
find the
could
(J.A. 1228).
the
than to reduce
purpose
had a
other
Virginia
outside
generated
flow of MSW
to create
statement is not sufficient
This
Indeed,
the
disposal.
Virginia for
into
fact on the
of material
genuine
issue
proffer
the Defendants
very purpose
intent, because
statements
issue of
other.
of the
the enactment
litigation for
in the same sworn dec-
by
Bolling
Senator
at
alleviate or
statutory provisions
issue-to
of
“regardless
contradict his
flatly
laration
threats to
safety
at
reduce health
least
Senator
phrase. Specifically,
the source”
and environment creat
Virginia’s citizens
out-
generated
that MSW
Bolling admitted
from states
of MSW
importation
the
ed
“increased con-
Virginia presented
side
upon
limitations
the con
strict
with less
increas-
rapidly
of “the
cerns” on account
fully supports
Virginia
than
tent of MSW
that we in
perception
and our
ing volume
inher
This is because an
conclusion.
our
over
have less control
the Commonwealth
prof
of the Defendants’
component
ent
ability to
that waste and our
the content of
enactment of
Virginia’s
of
purpose
fered
to that
regulations as
enforce
at issue is discrim
statutory provisions
the
(J.A. 1229).
enacting
waste stream.”
outside
against
generated
ination
issue,
Senator
statutory provisions
a constitu
Virginia has
Virginia. Whether
explained:
were
Bolling further
“We
engaging
for
such
tionally valid reason
of
regulations
aware that the solid
of the strict
is the focus
discrimination
stringent as those
were not as
other states
scrutiny inquiry.
These latter
Id.
of
Commonwealth.”
un-
Bolling
of
statements
Senator
quoted
the rec
The Defendants contend
of MSW
show that the volume
equivocally
material
genuine
that a
issue of
ord shows
lenge
admissibility of this evidence. See
directly
Although
do not
dis-
the Defendants
press
accuracy
authenticity
Owens-Corning Fiberglas Corp.,
of the
69
pute
v.
Jones
transcripts just
712,
(4th Cir.1995);
and in
discussed
releases and
v. Cook
Liberles
F.3d
argue
Defendants
quoted,
1122,
Cir.1983);
cases
(7th
some
County, 709 F.2d
press
quotation's
releases and
Hialeah,
Drive-Away
Inc. v. Inter
Auto
Co. of
transcripts
because
debate
are inadmissible
Commission, 360 F.2d
state Commerce
and were re-
they
not authenticated
"were
(5th Cir.1966);
Alan
10A Charles
448-49
(the
double-hearsay.”
Defendants’
plete with
Kane,
Mary Kay
Wright,
R.
&
Arthur Miller
44).
Defendants failed to
Br. at
Because the
§
282-286
& Procedure
Federal Practice
below,
gross
objections
and a
these
make
(3d ed.1998). Accordingly,
on
the Defendants
miscarriage
justice
not resulted from
has
arguments
rely
appeal cannot
on these
the chal-
consideration of
the district court’s
inadmissibility as a basis for reversal
support
lenged evidence in
of the Plaintiffs’
summary judgment in
grant of
district court's
summary judgment,
the Defen-
motion
of the Plaintiffs.
favor
right
appeal to chal-
their
on
dants waived
Virginia flowing
Virginia’s
into
laws governing regulated medi
more concern
cal
Virginia triggered
on
waste and certain types of hazardous
part
Virginia’s
Assembly
By
General
than waste.
analogy, the Defendants rely
generated Virginia
upon
the volume of MSW
Maine v. Taylor,
477 U.S.
(1986).
being deposited in landfills located in
S.Ct.
Vir-
D.
the
carry
Defendants must
their burden of
showing that
generated
whether,
outside Vir-
We must next
viewing
consider
ginia
dangerous
is more
gener-
than MSW
light
the evidence in the
most favorable to
in Virginia.
ated
Chemical
Defendants,
Waste Man-
prof-
Defendants have
Hunt,
agement,
Inc. v.
504 U.S.
343-
fered
ju-
sufficient evidence for reasonable
(1992)
112 S.Ct.
find,
L.Ed.2d
rors to
respect
statutory
to each
(recognizing that
issue,
while the health and
provision at
provision
that
is
safety of the citizens of
may
Alabama
be a
justified
demonstrably
valid
factor
legitimate
interest,
local
Alabama
unrelated to
offered
protectionism,
economic
and
no evidence that
generat-
hazardous waste
that no nondiscriminatory
ex-
alternatives
ed outside Alabama is
dangerous
more
ist that are adequate
preserve
to
the local
than
generated
hazardous waste
in Ala-
interests at stake. Environmental Tech-
bama;
therefore, Alabama
Council,
cаrry
failed to
nology
its burden of that the Alabama statute imposing an additional fee on all generated hazardous waste Ala- argue The Defendants that all of bama disposed and of at Alabama facilities the statutory provisions at issue are de demonstrably justified by was a valid fac- monstrably justified because “solid waste tor unrelated to economic protectionism). generated streams exporting trash states raise and safety health concerns not In regard, this the Defendants have of- (the presented by Virginia waste.” Defen demonstrating, fered evidence when 56). Br. regard, dants’ at In light this viewed in the most favorable to them: (1) Defendants stress that problem par that certain materials MSW can be ticularly (2) respect health; acute with to exporting hazardous to human that each (3) MSW; states that do not have laws as strict as state has its own definition of limiting to and be linked begin with it must “[wjhile appro- find may one state that a level where to the volume MSW type of a certain strictly regulate priate support adequately. be screened not be as can waste, may state another solid assertion, rely on the the Defendants the risks concerned about aware by Virginia’s statements following sworn item into MSW type by that posed for Program (4) Director of Coordination 356); Virginia law (J.A. stream,” that DEQ: infectious potentially prohibits completely being and urine blood cap necessary as The statute is a such
items MSW, Maryland and while response of as appropriate the MSW vol- disposed of blood and disposal allow ume crisis faced Carolina Commonwealth. North circum- under limited acute with problem particularly urine as MSW (5) prohibits law stances; out- MSW. While regard out-of-state as MSW disposed of of a threat being poses more urine from of-state MSW disposal MSW, as allows its York the Commonwealth while New than (6) limitation; Mary- out-of-state ability police MSW without has less York allow hazardous waste state Any plan improving New land and loads. kilograms per begin less than 100 must over MSW police powеrs while of MSW disposed controlling linked to month be with and be (7) not; unlike Vir- can be where waste Virginia does to a level volume not New York do Maryland ginia, adequately screened. tracking require- *25 manifesting
impose allows the cap disposal statute from small waste on hazardous ments health protect to better Commonwealth generators. quantity by safety the Commonwealth and within a of MSW to controlling daily levels evidence, juror a reasonable From this managed be reasonably can volume that whole, that, generat- a MSW could infer policed. and safety and poses health ed outside inside by generated" posed not MSW risks satisfy the finding a would
Virginia. Such a DEQ are inspections Increased establishing that burden Defendants’ increasing valuable mechanism justi- are at issue statutory provisions However, the to regulations. adherence pro- than economic other by fied reason controlled cannot be problem volume tectionism. inspection stepping up simply by inspec- The number at landfills.
rate of an ef- component one is simply tors prong to the second respect With by waste-screening program fective test, must scrutiny Defendants strict Matching the number Commonwealth. at issue statutory provisions prove increasing volumes to the inspectors ad- means of discriminatory are the least a point counterproductive becomes gen- that MSW Virginia’s concern dressing container traffic of large where the poses health face, erated outside de- arriving at the landfill trucks generated safety posed not MSW loads, risks departing ren- positing their inside for foot face unsafe the landfill ders doubt, high volumes traffic. Without
a. even waste inspecting of waste make ongoing- an and exacerbate more difficult any plan for assert The Defendants problem. powers over MSW police improving state DEQ The time for the in- required Provision does not use the least discrimi- spectors adequately screen the waste natory means of addressing the alleged will limit the that can volume waste health and safety concern about the com- processed daily be at a landfill on a position of generated MSW Virgi- An screening program basis. effective nia. The point Plaintiffs out that Cap by the require Commonwealth would the Provision makes no effort to distinguish unloading impermeable of vehicles on an between the MSW of states according to pad or other area dedicated to waste an individual state’s level of regula- MSW screening. The would waste then have Plaintiffs, According tion. to the inter- spread be sufficient shallow state commerce would be burdened if less depth pad identify on the individual Virginia only capped the amount of waste components, including the breaking that can imported be from states with baled, apart of in a waste received com- regulatory MSW schemes less restrictive pacted, or frozen state. Intense visual than Virginia. Additionally, the more then screening would be conducted closely a state’s regulatory MSW scheme the inspector. screening, Besides visual Virginia, tracks that of higher the cap analysis through chemical hazardous should be. screening waste devices would have to be undertaken in order to detect hazard- blush, At first argu Plaintiffs’ ous waste which cannot be detected vi- ment discriminatory seems more against Further, sually. the testing protocol for outside Virginia than the certain may laboratory involve cap across the board Cap Provision. analysis that cannot be completed However, when one carefully considers the short duration. If unauthorized waste is argument, logic Plaintiffs’ its is clear. If a discovered, processes place must be in state enacts a statute that purposely dis for the removal proper disposition against criminates interstate commerce *26 of waste at an appropriate facility. an effort to a address concern other than will develop Commonwealth have to economic or protectionism, resource specific program depending on the prong second of the scrutiny strict test needs and character of each different requires that the statute impose the least facility. program Once a it developed, possible burden on interstate commerce. will have to be proven refined until it is words, In other rather than discriminating process oper- effective. This slow would against every ations down to a halt and MSW from prac- have the state other than lowering daily tical effect of Virginia, Virginia’s cap only intake to far target should 2,000 day. lower than tons a the MSW from that states have lesser safety regarding health standards A properly designed certification re- than Virginia. Because the Defen quirement would not be as effective as presented dants have no evidence as to because, the disposal cap statute without why a narrower capping statute would not control, DEQ volume adequately cannot adequately address identified health police MSW loads. citizens, and safety Virginia concerns for (J.A. 1159-61). the Defendants fail to survive the Plain summary tiffs’ motion for judgment with In response, the Plaintiffs ar- primarily to the gue respect prong that second of the strict Defendants have failed to prong meet the second Cap scrutiny pertains Cap because the test as it to the (2) in in the a fire resulted Provision.10 cargo on board partial destruction b. certainly it owned. These incidents barge they argue that The Defendants for a and envi- suggest potential health evidence to cre have sufficient submitted waterway disaster on a ronmental regard of material fact genuine ate a issue barge transport of MSW. presented Stacking Provision and whether the ing dis Rivers’ Ban are least the Three c. pro available for criminatory alternatives safety tecting the health and Trucking Certifica As against the toxic contamination citizens Axle and the Four or More tion Provision spills. from unintended We its rivers Provision, any the Defendants fail to offer Notwithstanding the Plaintiffs’ agree. affirmative evidеnce of the non-existence contrary, to the the Defen protestations alternatives on inter of less burdensome evidence dants have submitted sufficient Instead, the Defendants state commerce. genuine issues of regard to create traditionally rely on the deference resolved material fact need to be legislation high the area of given state example, fact. the Defen the trier of For safety. The traditional deference that way the sworn statement dants have submitted legislation high state in the area of is due DEQ Treacy Dennis that based Director way safety upon knowledge experience, his Ban Provision and Three Rivers’ Stacking assumption part derives necessary protect the health and are regulations do not discrimi- where such Treacy safety Virginia citizens. outlines against on their face interstate nate why barge and how a sworn declaration commerce, usually their burden falls on presents serious and transport of MSW as other local economic interests as well safety Virgi health and threats to unique interest, insuring economic thus States’ that cannot be alleviated ab nia’s citizens political processes that State’s own will Stacking sent enforcement Provision against unduly a check burden- serve as Furthermore, and the Three Rivers’ Ban. regulations. Less deference to the some in the record contains Hale’s answers to legislative judgment is due ... where (1) in terrogatories in which Hale admits: disproportion- regulation the local bears thirty-three it containers con lost residents and ately on out-of-state busi- on taining general merchandise overboard *27 lashing; nesses. barge improper a it owned due to materially Cap some son for the Provision is that states 10. The situation at issue here distinguishable from the situation in Maine v. regulations regarding the con- have less strict Taylor, 477 U.S. 106 S.Ct. 91 Virginia. The Defendants tent of MSW than (1986), legal authority heavily 110 L.Ed.2d inspection pro- that have offered evidence Taylor, upon by the relied Defendants. regarding inadеquate to cedures MSW are sampling inspection procedures did not safety Virginia protect the health and of citi- already testing exist for whether baitfish im- generated respect MSW zens with para- ported Maine from outside contained Virginia regulatory outside with MSW states Here, harmful to native fisheries. sam- sites However, less strict than schemes inspection procedures already pling and exist have evidence as to the Defendants offered no testing generated whether MSW why generated MSW from states Virginia contains materials harmful regulatory equally that are schemes MSW safety Virginia health and citizens. The capped. than should be more strict proffered nondiscriminatory rea- Defendants’
345 Freightways Kassel v. Corp., Consolidated the Trucking Certification Provision and 662, 675-76, 450 U.S. S.Ct. 67 the Four or More Axle Provision. (1981) (internal quotation L.Ed.2d 580 omitted).
marks
E.
all the parties agree
While
that
The Defendants next seek to avoid
Trucking
Provision and the
Certification
confrontation with the strictures of the
Four or More Axle Provision are not fa- dormant Commerce
altogether by
Clause
cially discriminatory against
gener-
MSW
asserting application of the market partici
Virginia,
ated outside
and we
already
have
pant doctrine. Under the market partici
determined that a genuine issue of materi-
doctrine,
pant
“a
acting
state
pro
its
al fact
regarding
exists
whether these stat-
prietary capacity
purchaser
as a
or seller
utory provisions
prac-
discriminate in their
may favor
own
its
citizens over others.”
tical
against
effect
outside Camps Newfound/Owatonna, Inc. v. Town
Virginia, the
argument
Defendants’
Harrison,
564, 592-93,
U.S.
we are
required
give deference to the
(1997) (inter
S.Ct.
terstate commerce. encouraged Council, that states be gress F.3d at 782. directed 98 conditions to consider numerous local acted in an area has Congress Where disposal waste authorizing addressing state or locаl their solid specifically action, density, the dormant Com- including: “population government problems, is, however, inapplicable, distribution, merce Clause local projected growth”; and action interferes if the state climatic, even hy- and geologic, “geographic, interstate commerce.... characteristics”; “political, drologic to be removed for a state law financial,
In order economic, organizational, of the dormant Com- the reach affecting compre- management problems however, Clause, congressional merce management.” solid waste hensive discriminating to authorize intent 6942(c). the De- According § U.S.C. unmistakably clear either law must be fendants, ac- by encouraging states to Congress not need expressly or stated. creating MSW for these factors count to override the dor- that it intends state states Congress “explicitly gave plans, Clause, it must af- but mant Commerce authority protect local interests the other- firmatively contemplated have in- management, it when comes MSW legislation. wise invalid state authority to limit or exclude cluding the omitted). (internal quotation marks Id. (the Defen- from other states.” MSW Here, the burden of Defendants bear 37). Br. at dants’ intent to autho establishing congressional contend that The Defendants also against to discriminate MSW rize a state unmis- history of RCRA makes legislative Wyoming v. that state. generated outside intended to takably Congress clear that Oklahoma, 112 S.Ct. 502 U.S. (1992). so 789, 117 the dormant Commerce Clause override L.Ed.2d a state to constitutionally permit governs Subchapter IV of RCRA “State disposal refuse objec- Its Solid Waste Plans.” Regional or his- snippets legislative that state. The and en- developing to assist tives “are rely in the Defendants tory upon which disposal methods for the of solid couraging (1) follows: making argument are as environmentally sound which are it is the formulating plan valu- a state “[i]n maximize the utilization of and which wide flexi- including energy permit and mate- Committee’s intention to able resources from solid develoрing rials which are recoverable part of the state bility on conserva- encourage waste and to resource can for plan plan so that each state such objectives § 6941. These tion.” U.S.C. H.R.Rep. No. 94- particular problems,” its by federal “assis- accomplished are to be (1976), in 1976 reprinted 1 at 35 pt. regional or authorities tance to States (2) 6238, 6273; Subchapter U.S.C.C.A.N. to Fed- planning pursuant comprehensive any effect “prevent [sic] does not IV Id. guidelines....” eral being car- presently that [were] activities Subchapter time ried out” states congressional over- support of their (3) 64, 6302; enacted,11 id. at point to a IV was argument, the Defendants ride political These actions have snippet subdivisions. claim this second 11. The Defendants legislative history questions because at the to restraint of is relevant relative raised serious Subchapter Congress IV it ac- time enacted com- interference with interstate trade and knowledged 94-1491, states have moved “[s]ome pt. H.R.Rep. 1 at No. merce.” *29 importation their of waste as have to ban the
347 purpose not, that is the of this issues in “[i]t statement the ease and would under the cities, legislation alleged, to assist counties and facts a constitute valid defense to in the of the ma- states solution discarded the action can and should be deleted.” Id. § at problem,” terials id. 6249. at 665. Below, the district court concluded that purported Defendants’ affir legislative history
these isolated bits of mative defense is upon based their asser broadly statutory and the worded lan- tion that City New York interfered with guage upon they rely which “do not come commerce, the free flow of exten expressing close to an ‘unmistakably clear’ Clause, sion the Commerce taking af intent on the of part Congress exempt steps firmative to discourage disposal state laws relating to solid waste from the of MSW within the borders of the State limitations of the dormant Commerce of New Having interfered, York. so 10). (J.A. Clause.” fully agree We Defendants contend the Plaintiffs are pro this The fragments conclusion. of statuto- hibited from challenging the statutory ry language legislative history cited provisions at issue under the dormant by the Defendants fall far short of the Commerce Clause. Not surprisingly, the demanding standard that in- congressional Defendants cite no in support case law unmistakably tent be clear. In See re: position. their Inc., Landfill, Southeast Arkansas We hold the district court did not err (8th Cir.1992) F.2d (holding that striking the Defendants’ purported affir- “[n]othing in or any RCRA other federal mative defense. Even assuming arguendo authorizing statute comes close to differ- alleged New York’s conduct should waste”). ent treatment of out-of-state
legally prevent it from bringing a constitu- challenge G. tional under the dormant Com- merce statutory provisions Clause to the at The Defendants’ next to attempt last at issue, obvious, stating the risk of avoiding the strictures the dormant neither the State New York nor New altogether Commerce Clause their as- City York plaintiff litigation. is a this purported sertion of a affirmative defense. Furthermore, we see no basis for somehow regard, the Defendants challenge holding any vicariously Plaintiffs grant the district court’s of the Plaintiffs’ hable for the conduct of the State New motion to strike their affirmative defense. City. York New York and/or Federal Rule of Civil Procedure 12(f) court, permits a district on motion of VI. party, a stricken any plead “order 12(f) ing any insufficient Lastly, defense.” Rule challenge Defendants generally motions are viewed with holding disfavor district court’s Riv- the Three “because striking portion pleading of a Ban Stacking ers’ and the violate Provision remedy drastic Supremacy because it is often Supremacy Clause. The sought by “Constitution, the movant simply dilatory provides Clause tactic.” A. 5A Charles Alan Wright & and the Laws of the United which States Miller, Arthur R. Federal Practice & Pro shall be made Pursuance thereof ... (2d ed.1990). § Land; cedure Never shall be the Law supreme theless, “a defense that might Judges every confuse the and the State shall be
(1976),
reprinted in 1976 U.S.C.C.A.N.
*30
supply
barge
plans
that Hale
to
in the Constitu-
each
thereby, any Thing
bound
Management
transportation
for the
Contrary Waste
any
to the
State
tion or Laws
VI,
a valid federal Certificate of
Const.,
of MSW has
art.
U.S.
notwithstanding.”
engage
it to
in
authorizing
Documentation
cl. 2.
trade”
and a valid Coast
“coastwise
Thus,
pur-
if
legislation,
enacted
federal
Inspection.
Guard Certificate
constitutionally dele-
Congress’
suant to
conflicting
authority,
nullify
can
gated
has held that
Supreme
The
Court
actions. Consideration
state or local
upon
confers
the licensee
a federal license
Supremacy
under
arising
issues
operate freely
each state’s
right
assumption
startfs] with
Clause
waters, subject only
legitimate
exercises
powers of the States
police
the historic
Douglas v.
police power.
of the state’s
by ... Fed-
superseded
to be
not
[are]
Prods., Inc.,
265, 281, 97
431 U.S.
Seacoast
the clear and
[is]
Act unless
eral
(1977).
Thus,
349 VII. I. conclusion, we the district affirm pertinent of part the Code section summary judgment in fa- grant court’s of involved is complicated: not respect
vor of the Plaintiffs with to their Any locality is challenges dormant Commerce Clause authorized to contract Provision, Trucking any the with Cap person, profit the Certifica- whether or non- Provision, profit, and the Four or More Axle garbage tion pickup refuse Provision. We also affirm the district and disposal services in locality its grant summary judgment court’s of in fa- to enter into relating contracts to waste respect vor of the Plaintiffs with to Hale’s disposal facilities which recover energy Supremacy challenge Clause to the Three or materials from garbage, trash and However, Ban. Rivers’ we vacate the dis- refuse. summary judgment
trict court’s of in grant (Michie 1997). § Code 15.2-932 respect favor of the Plaintiffs with to their challenge dormant Commerce Clause As to Part IV.A and the statute involved Stacking the Three Rivers’ Ban and the here, it is obvious to me that a more proceed- Provision and remand for further reasonable reading plain of the language ings with opinion. consistent We also the statute would confine contracting the grant vacate the district court’s of sum- authority locality” to “its in accord with in mary judgment favor of Hale with re- the position by taken the defendants under spect Stacking to Hale’s claim that the Dillon’s rule required construction in Provision Supremacy violates the Clause Virginia construing when statutes confer and remand for further proceedings con- ring power upon political subdivisions. opinion. Finally, sistent with this we va- rule, construed, fair, That as is “[a]ny entry judgment cate the district court’s reasonable doubt concerning the existence against Governor Gilmore and remand of the power by resolved the courts with instructions that the district court against corporation power and the him a in party dismiss as this action. denied,” in majority opinion, as noted PART, slip IN at of Sup’rs AFFIRMED VACATED IN 331-32. Richmond v. Bd. PART, 679, County, AND REMANDED. Henrico 199 Va. 101 (1958). 641, S.E.2d 645 But this Code WIDENER, Judge, concurring: Circuit section has been construed
I concur in opinion Supreme all of the of the court Court Concerned Residents v. IV.A, except Part and I concur in the Bd. Sup’rs County, Gloucester 248 488, (1994) result that Part IV.A obtains. 449 Va. S.E.2d 787 the con- 1983,” reject argument § We also the Defendants’ able under Golden State Transit v. 107, 103, provide Angeles, § that 42 U.S.C. 1983 does not Hale a Los 493 U.S. 110 S.Ct. (1989), respect remedy Supremacy 420 its Clause 107 L.Ed.2d the federal terms, § By provisions governing claim. its Title 42 U.S.C. 1983 documentation trade, only provides remedy for the violation of use of vessels in the coastwise see 46 12103, 12106, rights right §§ that are defined in the Constitution or U.S.C. confer a Thus, remedy operate freely § in a federal statute. the form of a license to subject only legiti- will be available for a violation of federal each state’s waters only "gives police powers. statute if Lhestatute itself rise to a mate exercise of a state’s Freestone, right.” Blessing Douglas, federal v. 431 U.S. S.Ct. 520 U.S. 1740. (1997). licenses, 117 S.Ct. 137 L.Ed.2d Hale As holder of such has Clause, Supremacy standing Supremacy While "the of its own its assert Clause force, any rights § does not create enforce- claim under collection, apparent why Virgi There is no reason here: “action trash text of county in thereto is response may permit political taken nia not her subdivi act in the furtherance legislative operate disposal sions to facilities *32 449 S.E.2d at county’s police powers.” benefit, performing for their own either body exer- legislative [so] 790. “When operation by the itself or contract. Or pre- every possible police powers cises its event, In that Virginia may do the same. indulged in favor of sumption shall be political or the subdivi the Commonwealth validity legislative act.” 449 S.E.2d of its local would act disposing sion of waste at 790. exception to participant under the market is no doubt
In the case at hand there
the Dormant Commerce Clause.
See
Reeves,
Stake,
429,
facility
trash
involved here under-
that the
Inc. v.
447 U.S.
took,
(1980)
consent of
agreement
with the
and
(holding
Virginia does drown a sea Governor.”); by sion Va.Code Ann. ” Ante, garbage.’ (quoting at 327 J.A. (1998) (“The § Department 10.1-1185 [of 597). a imposed He also moratorium on Quality] by Environmental shall be headed new landfill and he development, instruct- by a appointed Director the Governor to Secretary ed his of Natural Resources to at pleasure serve his for a term coincident legislation recommend to deal with the shall, with his own. The Director ... problem. See id. at 327. The Gover- under the direction and control of the Gov- proposed legislation nor himself such in his ernor, power perform exercise such 1999 State of the Commonwealth address such as are conferred imposed duties Assembly Virginia, to the General refer- him law upon by perform and shall such specifically ring Management’s to Waste him may required other duties as be “ four plans import ‘to thousand more tons Governor....”). City of New per York trash into ” 630). sum, Moreover, only In not did Id. Governor Gilmore day.’ (quoting J.A. engineer City passage conceive and of the stat- Mayor sug- “when New York Giuliani utes, championed statutory he has those gested Virginia might that have an obli- MSW, and, City’s Virgi- in the gation accept provisions New York as is reflected Code, responded possesses authority Governor Gilmore that ‘the nia he the direct Gilmore, Likewise, court, retaining 1. the district law is insufficient. Governor how ever, recognized actively publicly party, Governor Gilmore as a has defended the disputed legislation proper his connection to the statutes ex- at issue. He is therefore Holdings, beyond general duty uphold Mgmt. Inc. v. tends his defendant.” Waste Gilmore, (E.D.Va. "many F.Supp.2d law. The 543 n. 6 court noted courts have omitted). 1999) (citations generalized duty held that a to enforce state Farkas; Young; Ro Robert A. clear Lowell to effect his over his co-defendants senfeld, Tannenhauser view, Bernstein & my of enforcement.2 aim LLP; Rosenfeld, Defendants- Eric P. disputed to the stat Governor’s connection Appellees. retaining supports utory provisions amply case, even under in this him as a defendant 99-20389. No. parte the Ex applying test for stringent Appeals, States Court United recently ar such as Young exception Fifth Circuit. Okpalo Fifth See ticulated Circuit. May 2001. (5th Foster, 416-17 244 F.3d bi v. banc)
Cir.2001) (en opinion) (plurality Rehearing Denied June into the existence of (“[A]ny probe (1) the abili exception gauge should
Young to enforce the statute
ty of the official statutory or constitutional
issue under his (2) willing the demonstrated
powers, statu official to enforce the
ness of the
te.”).3 majority from the respectfully
I dissent only.
opinion point on this LEWIS, Plaintiff-Appellant, P.
Michael
v. FRESNE; al., Defendants,
David M. et examination of the Governor’s rele- squarely present extensive 2. Because this case does not issue, position take a here on powers I need not statutory vant and constitutional duty uphold governor's general whether a underpinnings factual of this relation to the law, more, can be sufficient to without Lytle Griffith, v. 240 F.3d case. Cf. exception to Eleventh Amendment invoke the (4th Cir.2001) (where Eleventh Amendment parte Young. immunity in Ex found appeal, immunity time on exer- raised for first cising the issue to the to remand discretion least, would, very 3. At the I rather than rule first instance district court "to address in the stage, at this remand in favor of the Governor law"). questions and state the relevant of fact court for a more this issue to district