                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-7-2001

Oxford Assoc v. Waste Sys Auth
Precedential or Non-Precedential:

Docket 00-2936




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Recommended Citation
"Oxford Assoc v. Waste Sys Auth" (2001). 2001 Decisions. Paper 256.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/256


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Filed November 7, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 00-2936 & 00-2949

OXFORD ASSOCIATES; HPC ASSOCIATES; KING OF
PRUSSIA ARMS; SUSSEX GWYNEDD LTD. INC.;
LAKESIDE APTS. ASSOC.; CURREN PARTNERSHIP;
WHITPAIN ASSOCIATES; TOWNE COURTS APARTMENTS;
MILL CREEK ASSOCIATES; WYNDON ASSOC.; ONE
HUNDRED ONE ASSOC.; LLANBERIS ASSOCIATES;
WHITEHALL; HAVERFORD AVENUE ASSOCIATES; 113
CRICKET ASSOCIATES; BRYNWOOD INVESTORS LP;
MERION COURT INVESTORS LP; PLACE ONE
APARTMENT ASSOCIATES, L.P.; KBF ASSOCIATES L.P.,
t/a KINGSWOOD APARTMENTS; TIMBERLAKE
APARTMENT ASSOCIATES, L.P.; NORRISTOWN
ASSOCIATES; CEDARBROOK HOLDINGS; HAROLD
MELTZER; EVELYN MELTZER; NOBLE RYDAL
ASSOCIATES; VILLAGE GREEN ASSOC. LP; DEKALB
ASSOCIATES; GLEN ASSOCIATES; ETON INVESTMENTS
LP; VALLEY FORGE TOWERS APARTMENTS NORTH LP;
CHELBOURNE PLAZA CONDOMINIUM ASSOCIATION;
ELKINS COURT CONDOMINIUM ASSOCIATION; REGENCY
TOWERS APARTMENT ASSOCIATES LP; FOXCROFT
SQUARE APARTMENT ASSOCIATES LP; GREEN VALLEY
MANOR ASSOC.; GUNTRAM WEISSENBERGER; THE
WOODS ASSOC.; ROBERT KEENEY; PATRICIA T.
KEENEY; ABINGTON PLAZA ASSOCIATES; OAKWYNNE
HOUSE ASSOCIATES; TEDWYN ASSOCIATES; 429
ASSOCIATES; CONWYN ASSOCIATES; SEVILLA ASSOC.;
UNIVERSITY CITY HOUSING COMPANY; WYNNEWOOD
ASSOCIATES; TOWNLINE ASSOC.; ELM GARDEN
MANSION REALTY TRUST; ATHENS AVE. REALTY TRUST;
ELM GARDENS APTS. REALTY; HUNTERS RUN REALTY
TRUST; GRIMM BROTHERS REALTY CO.; MADISON
MANOR APTS. ASSOCIATES; TOWN & COUNTRY APTS.
ASSOCIATES; FREEDLEY COURT APTS. ASSOCIATES;
TREMONT TERRANCE APTS. ASSOCIATES; ROSEDALE
COURT ASSOCIATES; LAURWYCK APTS. LP,

       Appellants in 00-2936,

and

1100 FIRST AVE. ASSOCIATES LP; 185 COMMERCE
DRIVE ASSOCIATES; 1996 PAVILION ASSOCIATES LP;
301 CITY LINE ASSOCIATES; 455 PENNSYLVANIA
AVENUE; CEDARBROOK HOLDINGS; ELIZABETH HOME,
INC.; EDWARD P. FARLEY & A. INGEBORG; MONUMENT
ROAD ASSOCIATES; NEW YORK DRIVE, LLC;
PANGBOURNE ASSOCIATES; TWINING OFFICE
ASSOCIATES; 419 W. MARSHALL STREET; GRIMM
BROS. REALTY CO., INC.; CHARLES L. MOLES; DONNA
MOLES; BARBARA ANN RONCA; CARMENICO FUNERAL
HOME, INC.,

       Appellants in 00-2949,

v.

WASTE SYSTEM AUTHORITY OF EASTERN
MONTGOMERY COUNTY

On Appeal from the United States District Court
for the Eastern District of Pennsylvania

District Court Judge: Ronald L. Buckwalter
(D.C. Civ. Nos.: 99-03026 & 99-03275)

Argued July 27, 2001

Before: ROTH, BARRY, and FUENTES, Circuit Judges

(Opinion Filed: November 7, 2001)

       Kenneth E. Aaron (argued)
       Weir & Partners
       The Widener Building, Suite 500
       1339 Chestnut Street
       Philadelphia, Pennsylvania 19107
        Attorney for Appellants

                                2
       Benjamin E. Zuckerman (argued)
       Cozen and O'Connor
       The Atrium
       1900 Market Street
       Philadelphia, Pennsylvania 19103
        Attorney for Appellee

OPINION OF THE COURT

FUENTES, Circuit Judge.

This is an appeal from orders of the District Court
dismissing, for lack of standing, Count One from each of
plaintiffs' separate complaints.1 Plaintiffs (collectively
referred to as "the Building Owners") are owners of
apartment houses and office buildings in Montgomery
County, Pennsylvania. They brought their actions under 42
U.S.C. S 1983 against defendant, the Waste System
Authority of Eastern Montgomery County ("Waste
Authority"), asserting violations of their rights under the
Commerce Clause, U.S. Const. art. I, S 8, cl. 3. Specifically,
the Building Owners challenge the Waste Authority's
implementation of a waste generation fee ("WGF ")
structure, which has the purpose of funding a local waste
processing plant. The Building Owners maintain that the
Waste Authority's fee structure effectively forces them to
use the local facility to the exclusion of more affordable out-
of-state options, in contravention of the Commerce Clause.
Because we hold that the Building Owners have standing to
litigate this claim, we will reverse and remand the cases for
further proceedings.

I.

Montgomery County, Pennsylvania, first forayed into
_________________________________________________________________

1. The remaining counts of plaintiff 's two complaints involved state law
claims and were dismissed pursuant to stipulated orders dated
September 12, 2000. The plaintiffs filed notices of appeal from the
stipulated orders on October 5, 2000. This Court consolidated these
appeals by order dated October 31, 2000.

                               3
waste management by developing a municipal plan for solid
waste disposal that divides the county into three solid
waste districts, one of which is the Eastern District.
Approximately two dozen municipalities of the eastern
portion of the county constitute the Eastern District. In
1989, Montgomery County established the Waste Authority
to serve as the municipal authority in the Eastern District.

In implementing its waste management plan,
Montgomery County contracted with a private company, the
Montenay Montgomery Limited Partnership ("Montenay"), to
construct and operate a waste-to-steam plant. In May
1989, Montgomery County's industrial development
authority issued $107 million in revenue bonds to finance
the construction of a waste-to-steam plant that Montenay
would purchase, build, and operate ("the Montenay
Facility").

In order to ensure that the Montenay Facility generated
sufficient revenue to cover its operations and to repay the
bonds, Montgomery County, the Waste Authority, and the
municipalities in the Eastern District enacted flow control
ordinances. The ordinances required that all solid waste
produced in the Eastern District be processed at the
Montenay Facility. In addition, the Waste Authority
imposed on trash haulers a "tipping fee" to be assessed
each time the haulers deposited trash for processing at the
Montenay Facility. The tipping fee was set at a level
sufficient to cover the expenses and liabilities of managing
the Montenay Facility, as well as to enable Montenay to
repay the bonds. As a result of the ordinances and the
tipping fees, trash haulers were obligated to bring all
Eastern District waste to transfer stations for later
processing at the Montenay Facility and to pay an above
market tipping fee for the waste processing service.

In 1994, the United States Supreme Court decided the
case of C&A Carbone, Inc. v. Town of Clarkstown, New
York, 511 U.S. 383 (1994), placing the Eastern District flow
control scheme in jeopardy. The Court ruled that flow
control systems, such as the one implemented by
Montgomery County, violate the Commerce Clause.
Montgomery County responded to C&A Carbone by forming
a Blue Ribbon Panel in 1997 to devise a new method of

                               4
ensuring Montenay an adequate revenue stream to operate
the waste disposal facility and to repay its debt obligations.

In early 1998, the Blue Ribbon Panel recommended that
the Waste Authority use its governmental power to create a
waste generating fee structure. On January 1, 1999, the
Waste Authority adopted the panel's recommendation. This
new WGF structure differs from the previous flow control
system in that it transfers the burden of generating revenue
for the Montenay facility from trash haulers to waste
generators. Haulers of trash that originated within the
Eastern District are no longer charged a tipping fee.
Instead, these haulers are allowed to dump free of charge,
creating an economic incentive for them to dispose of their
waste at Waste Authority facilities. The lost revenue from
tipping fees is offset by the annual WGF that the Waste
Authority assesses upon property owners in the Eastern
District.2 As a result, the Building Owners must continue to
pay private trash haulers to transport their waste, and
must also pay a new and separate WGF to the Waste
Authority for the processing of that waste. To cover the
costs of operating the Montenay Facility and financing the
bonds, the Waste Authority calculates that it must assess
a WGF of $76.25 per ton. The Building Owners contend
that this rate greatly exceeds the interstate market rate,
which they estimate at $48 to $50 per ton.

The Building Owners allege that the purposes and effects
of both the abolition of the tipping fee and the imposition of
the WGF, are to compel them to subsidize trash processing
at the Montenay Facility, and to encourage trash haulers to
utilize the Montenay Facility because any other facility
would require haulers to pay for dumping. They contend
that under the WGF structure (1) all waste generat ed
_________________________________________________________________

2. The Waste Authority classifies these lands by use and sets the WGF
at a per ton rate according to the estimated annual tonnage of solid
waste that a given land classification will produce. For example, the
Waste Authority charges apartment building owners a WGF for each
apartment unit, estimating that one apartment will generate 0.72 tons of
trash annually. In contrast, the Waste Authority assesses office building
owners a WGF measured by the total square footage of gross floor area
in the office building. It estimates that offices produce one ton of waste
annually for every 2000 square feet.

                               5
within the Eastern District will still have to be disposed of
in the Eastern District and (2) the Waste Authorit y will still
force the participants in the waste processing industry to
cover the expense of the Montenay Facility bonds and its
operating costs. Finally, the property owners assert that if
they were to refuse to pay the WGF, the Waste Authority
could use its municipal powers to impose liens on their real
property.

Asserting Commerce Clause challenges to the WGF
structure, the Building Owners brought these actions in the
United States District Court for the Eastern District of
Pennsylvania. The Waste Authority filed motions for
judgment on the pleadings under Fed. R. Civ. P. 12(c),
arguing that the Building Owners lacked standing. The
District Court agreed with the Waste Authority and
dismissed the actions. The Building Owners appealed, and
we consolidated the appeals.

We have jurisdiction pursuant to 28 U.S.C. S 1291. We
exercise plenary review over the District Court's decision to
grant, on standing grounds, the Waste Authority's Rule
12(c) motions. See Green v. Fund Asset Mgmt., L.P., 245
F.3d 214, 220 (3d Cir. 2001); UPS Worldwide Forwarding,
Inc. v. U.S. Postal Service, 66 F.3d 621, 624 (3d Cir. 1995).
To that end, we " `view the facts presented in the pleadings
and the inferences to be drawn therefrom in the light most
favorable to the . . . non-moving party,' " and may affirm
only if the Building Owners "would not be entitled to relief
under any set of facts that could be proved" consistent with
the complaints' allegations. Green, 245 F.3d at 220 (quoting
Inst. for Scientific Info., Inc. v. Gordon & Breach, Science
Publishers, Inc., 931 F.2d 1002, 1004 (3d Cir. 1991)).

II.

The Building Owners contend that they have a right to
unimpeded access to the interstate market for waste
disposal services and that the District Court erred in
holding that they lack standing. The Waste Authority
replies that the Building Owners lack prudential standing
because their claims do not fall within the zone of interests
protected by the Commerce Clause. It argues that payment

                               6
of the WGF constitutes, at most, a local injury unrelated to
the Commerce Clause's purposes of preventing both
economic protectionism and retaliatory measures between
the states. We hold that the District Court erred in finding
that the Building Owners lacked standing.

A.

We begin by reviewing the basic principles of standing.
We have previously described standing as a doctrine
"comprised of both constitutional and prudential
components." Conte Bros. Auto., Inc. v. Quaker State-Slick
50, Inc., 165 F.3d 221, 225 (3d Cir. 1998); accord Bennett
v. Spear, 520 U.S. 154, 162 (1997). Elaborating upon this
description, we have stated that "[t]he constitutional
component, derived from the Art. III `case' or`controversy'
requirement, requires a plaintiff to demonstrate that he or
she suffered `injury in fact,' that the injury is`fairly
traceable' to the actions of the defendant, and that the
injury will likely be redressed by a favorable decision."
Conte Bros., 165 F.3d at 225; accord Steel Co. v. Citizens for
a Better Env't, 523 U.S. 83, 102-03 (1998). The Waste
Authority does not contest that the Building Owners meet
these three " `irreducible constitutional minim[a] of
standing.' " United States v. Hays, 515 U.S. 737, 742 (1995)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-
61 (1992)).

Instead, the Waste Authority argues that the Building
Owners fail to satisfy prudential standing requirements.
Prudential considerations constitute a supplemental aspect
of the basic standing analysis and address concerns
regarding the need for judicial restraint. See Davis v. Phila.
Hous. Auth., 121 F.3d 92, 96 (3d Cir. 1997) ("In addition to
the constitutional standing requirements, federal courts
have developed prudential standing considerations`that are
part of judicial self-government.' ") (quoting UPS Worldwide
Forwarding, 66 F.3d at 626). Prudential standing entails an
inquiry into a plaintiff 's role because "[t]he aim of this form
of judicial self-governance is to determine whether the
plaintiff is `a proper party to invoke judicial resolution of
the dispute and the exercise of the court's remedial
powers.' " Conte Bros., 165 F.3d at 225 (quoting Bender v.

                               7
Williamsport Area Sch. Dist., 475 U.S. 534, 546 n.8 (1986)).
We therefore use the prudential limits of standing to ensure
that only those parties who can best pursue a particular
claim will gain access to the courts. See Gladstone, Realtors
v. Vill. of Bellwood, 441 U.S. 91, 99-100 (1979).

We have articulated the test for assessing whether a
party satisfies prudential standing as follows:

       [Prudential limits] require that (1) a litigant assert his
       [or her] own legal interests rather than those of third
       parties, (2) courts refrain from adjudicating abstract
       questions of wide public significance which amount to
       generalized grievances, and (3) a litigant demonstrate
       that her interests are arguably within the zone of
       interests intended to be protected by the statute, rule or
       constitutional provision on which the claim is based .

Davis, 121 F.3d at 96 (emphasis added) (internal
quotations and citation omitted); accord Conte Bros., 165
F.3d at 225-26. In this appeal, the Waste Authority argues
only that the Building Owners fail to fulfill the third
requirement, that of the zone of interests. In addressing
that component of prudential standing, we have advocated
a "liberal" employment of the zone of interests test,
explaining that it is "not meant to be especially
demanding." Davis, 121 F.3d at 98, 101 (internal
quotations and citation omitted).

Here, we make our zone of interests determination in the
context of the dormant Commerce Clause. The Commerce
Clause of the United States Constitution provides that
"Congress shall have Power . . . to regulate Commerce . . .
among the several States." U.S. Const. art.I,S 8. The
Supreme Court has explained that the Commerce Clause
was not only designed to protect the states, but was also
"intended to benefit those [individuals] who . . . are engaged
in interstate commerce. The `[c]onstitutional protection
against burdens on commerce is for [their] benefit.' " Dennis
v. Higgins, 498 U.S. 439, 448-49 (1991) (quoting Morgan v.
Virginia, 328 U.S. 373, 376-77 (1946)). While the Commerce
Clause explicitly confers power to Congress, it"has been
interpreted to contain `an implied limitation on the power of
the States to interfere with or impose burdens on interstate

                                8
commerce.' " Tolchin v. Supreme Court of the State of New
Jersey, 111 F.3d 1099, 1106 (3d Cir.. 1997) (quoting
Western & Southern Life Ins. Co. v. State Bd. of Equalization
of California, 451 U.S. 648, 652 (1981). This implied
limitation is often referred to as the "dormant Commerce
Clause." Remarking upon the dormant Commerce Clause's
role in guarding against arbitrary barriers to trade, the
Supreme Court has elaborated that:

       every farmer and every craftsman shall be encouraged
       to produce by the certainty that he will have free
       access to every market in the Nation, that no home
       embargoes will withhold his exports, and no foreign
       state will by customs duties or regulations exclude
       them. Likewise, every consumer may look to the free
       competition from every producing area in the Nation to
       protect him from exploitation by any. Such was the
       vision of the Founders; such has been the doctrine of
       this Court which has given it reality.

H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525, 539
(1949). The Building Owners contend that such Commerce
Clause concerns are implicated by the Waste Authority's
WGF structure, which, they claim, thwarts their ability to
access the interstate market in waste disposal services.

B.

We agree with the Building Owners. If they succeed in
proving the allegations of their complaint, they will
demonstrate that the Waste Authority is forcing waste
generators to use the Montenay Facility and is forcing them
to pay a non-competitive fee to use that Facility.

The Supreme Court has held that the Commerce Clause
is offended by ordinances that "hoard[ ] solid waste, and the
demand to get rid of it, for the benefit of the preferred
processing facility." See C&A Carbone, 511 U.S. at 392. We
conclude that, as plaintiffs have alleged, the Montenay
scheme offends the Commerce Cause in just this manner
by benefitting the preferred Montenay Facility. Moreover,
the waste generators are directly involved in this stream of
commerce. They are consumers of the waste processing
industry. In paying the WGF, they are directly paying the

                                9
costs of maintaining the preferred facility and they are
precluded by economic factors from accessing less
expensive waste processing facilities. As a result, their
interests, as consumers of waste processing services, are
within the zone of interests intended to be protected by the
Commerce Clause.

Two recent courts of appeals decisions support our
analysis. In these cases, parties, similarly situated to the
Building Owners, were held to have prudential standing to
contest a municipality's waste disposal scheme. See On the
Green Apartments L.L.C. v. City of Tacoma, 241 F.3d 1235
(9th Cir. 2001); Huish Detergents, Inc. v. Warren County,
Ky., 214 F.3d 707 (6th Cir. 2000).3 We find these decisions
to be persuasive.

In Huish Detergents, Warren County granted a single
trash hauler a five-year exclusive right to collect and
process all municipal waste generated in the city of Bowling
Green. See 214 F.3d at 708. The county obligated the
hauler to operate the facilities that processed the city's
waste, effectively prohibiting the use of any out-of-state
disposal sites. Id. at 708-09. The county required all
residences, commercial establishments, and industrial
facilities to utilize the designated hauler's services to
dispose of their waste. Id. at 709. Huish Detergents, a
company which operated a laundry detergent
manufacturing facility, brought a dormant Commerce
Clause challenge to this waste disposal scheme. Id. The
Sixth Circuit held that the plaintiff had prudential standing
to litigate its claim because it was asserting its individual
right as a consumer to purchase processing or disposal
services across state boundaries, an interest that falls
"squarely within the zone of interests protected by the
Commerce Clause." Id. at 711. The court explained that the
Commerce Clause protects not only producers, but also
consumers who seek to benefit from free competition across
the nation. Id. The court concluded by stating that "waste
generators participate directly in commerce, and the
Commerce Clause guarantees to them access to the
interstate market for waste-related services." Id. at 711-12.
_________________________________________________________________

3. We note that the District Court did not have the benefit of these
opinions, which were rendered after its Rule 12(c) decisions were issued.

                               10
The following year, the Ninth Circuit decided On the
Green. In that case, a municipality passed an ordinance
granting the local solid waste utility a monopoly on
collecting, removing, and disposing of solid waste in the
municipality. See 241 F.3d at 1238. The ordinance further
required that all waste be disposed of at the municipal
facility. Id. The plaintiff, like the Building Owners here,
operated a residential apartment complex and brought a
Commerce Clause challenge because it desired more
flexibility in disposing of its waste. See id. at 1237-38.
Although the Ninth Circuit found that the plaintiff lacked
prudential standing to challenge the collection monopoly of
the ordinance (since collectors would have the possibility of
using landfills outside the state, obviating Commerce
Clause problems), it held that the plaintiff satisfied
prudential standing requirements for challenging the
section of the ordinance requiring all municipal garbage to
be dumped at the municipal facility. See id. at 1239-41.
The court reasoned that because plaintiff 's alleged injury
would be remedied if it could take its garbage outside the
city, its injury was related to the purposes underlying the
Commerce Clause. See id. at 1241.

Like the plaintiffs in Huish Detergents and On the Green,
we believe that the Building Owners satisfy prudential
standing requirements because, as waste generators
participating in commerce and directly affected by the fee
imposed on them, they allege deprivations of their dormant
Commerce Clause right to access interstate markets. See
On the Green, 241 F.3d at 1240-41; Huish Detergents, 214
F.3d at 710-11.

The Waste Authority suggests, however, that no dormant
Commerce Clause interest exists here because Montgomery
County did not ban the Building Owners from gaining
access to interstate garbage disposal markets, but merely
imposed a fee. The Building Owners counter this argument
by pointing out that it fails to consider how the WGF may
effectively preclude access to the interstate garbage market
by making it financially unfeasible to access it. This is an
issue, however, which should be considered not now, as a
part of our standing determination, but later with the
merits of plaintiffs' claims.

                               11
The Waste Authority also asserts that, rather than follow
On the Green and Huish Detergents, we should be guided by
earlier Eighth and Ninth Circuit decisions in which waste
generator plaintiffs, challenging waste disposal ordinances,
were held to lack prudential standing. See Ben Oehrleins &
Sons & Daughter, Inc. v. Hennepin County, 115 F.3d 1372,
1380-82 (8th Cir. 1997); Individuals for Responsible Gov't,
Inc. v. Washoe County, 110 F.3d 669, 703-04 (9th Cir.
1997). However, these cases are distinguishable. In Washoe
County, the Ninth Circuit Court of Appeals found that the
individual consumers of trash disposal services did not
have standing to claim a violation of the dormant
Commerce Clause because they were not subjected to a
barrier to interstate commerce, i.e., they had the option of
disposing of their waste out of state. 110 F.3d at 703-04.

In Ben Oehrleins, the Eighth Circuit Court of Appeals
held that the waste generator plaintiffs did not have
standing to protest a cost of waste disposal that was an
indirect cost, i.e., a cost that was passed on to the
consumer by the waste haulers. 115 F.3d at 1381. In the
cases before us, however, the WGF is imposed directly on
the waste generators.4

The Waste Authority also contends that a finding of
standing will greatly expand the scope of cognizable claims
under the Commerce Clause, enabling any individual to
challenge any state regulation no matter how remote the
impact upon him or her. That concern is clearly not present
here, however, because it is undisputed that the state
regulation involved directly impacts the Building Owners.
The Waste Authority funds the waste disposal scheme
through a WGF directly assessed upon each of the Building
Owners' properties. In challenging the legitimacy of this fee,
the Building Owners' interests are hardly remote.

We conclude that, because the Building Owners have
pled that they are unable to freely engage in the interstate
market for waste processing and disposal services, their
claims of injury fall within the zone of interests protected by
_________________________________________________________________

4. We do not need to, and we will not, opine here whether we agree with
the Ben Oehrleins court that waste generators do not have standing to
complain of indirect costs passed on to them by the waste haulers.

                               12
the Commerce Clause. Accordingly, we find that the
Building Owners satisfy the prudential requirements of
standing to litigate their claims.5

III.

       For the foregoing reasons, we will reverse the District
Court's Rule 12(c) dismissals, which were premised on the
Building Owners' lack of standing, and remand these cases
for further proceedings consistent with this opinion.
_________________________________________________________________

5. Although we find that the Building Owners have standing, we express
no opinion on the merits of their Commerce Clause claims.

                               13
BARRY, Circuit Judge, dissenting.

I cannot agree with the majority that the Building
Owners have demonstrated that their interests are arguably
within the zone of interests intended to be protected by the
Commerce Clause and, thus, that they have standing to
bring their dormant Commerce Clause claim. The Building
Owners did not participate in any interstate commerce
decision -- where, for example, their waste was to be tipped
-- and allege only that as a result of the "economic
disincentives" that result from the zero tipping fee, the
Waste Generation System interferes with their haulers'
ability to participate in interstate commerce. It is, they say,
an "obvious conclusion that the haulers will dispose of
waste only where there is no tipping fee -- the[Montenay]
Facility." Third Amended Comp., P 117. As a result, they
continue, they are effectively compelled to dispose of their
waste only at that local facility rather than at more
affordable out-of-state facilities. This is simply not enough
for a dormant Commerce Clause challenge, and I
respectfully dissent.

The general dormant Commerce Clause cases as well as
the more specific waste disposal dormant Commerce Clause
cases discussed by the majority support my conclusion that
in-state plaintiffs lack prudential standing to bring a
dormant Commerce Clause claim where they allege only
that a party with whom they contract is subject to an
undue burden on its ability to freely participate in
interstate commerce.1 In the"general" category, the
Supreme Court has considered dormant Commerce Clause
challenges brought by in-state companies whose ability to
freely contract with out-of-state companies was directly
infringed by a local regulation. See, e.g., Camps Newfound/
Owatonna, Inc. v. Town of Harrison, 520 U.S. 564 (1997)
(in-state camp subject to state real and property tax waged
successful dormant Commerce Clause challenge as it was
the party against whom the tax was assessed and its ability
to contract was directly burdened); General Motors Corp. v.
_________________________________________________________________

1. In this connection, the argument that the haulers here -- who tip
without payment of any fee -- are "burdened" at all is somewhat hard to
understand.

                               14
Tracy, 519 U.S. 278 (1997) (in-state company subject to
state sales and use tax had standing to bring dormant
Commerce Clause challenge where it paid the tax and the
tax scheme affected its contract with an out-of-state gas
provider); West Lynn Creamery, Inc. v. Healy, 512 U.S. 186
(1994) (in-state milk producer waged a successful dormant
Commerce Clause challenge where it was subject to a
discriminatory tax and was a party to the transactions
which were burdened). Although standing was not directly
addressed in Camps and West Lynn, in all of these cases
the in-state companies were within the "zone of interests" of
the dormant Commerce Clause because they "sought to
protect their own rights to purchase goods or do business
across state borders, without being subject to a
discriminatory tax." Ben Oehrleins and Sons and Daughter,
Inc. v. Hennepin County, 115 F.3d 1372, 1381 (8th Cir.
1997).

Waste disposal cases from courts of appeals which have
considered the issue have explicitly or implicitly come to
the same conclusion. See On the Green Apartments L.L.C. v.
City of Tacoma, 241 F.3d 1235 (9th Cir. 2001); Huish
Detergents, Inc. v. Warren County, Kentucky, 214 F.3d 707
(6th Cir. 2000); Individuals for Responsible Gov't, Inc. v.
Washoe County, 110 F.3d 699 (9th Cir. 1997); Ben
Oehrleins, supra. In these cases, albeit for different reasons,
the courts recognized a waste generator's standing to bring
a dormant Commerce Clause claim where the waste
generator alleged that its ability to contract directly with the
hauler or processor of its choice was infringed by local
regulation. On the Green and Huish Detergents, on which
the majority relies, are two such cases. Where, however, the
waste generator did not allege that its ability to contract
directly with its hauler or processor of choice was infringed
and instead asserted only that its injury was higher cost in-
state services or some injury derivative of its hauler's
injury, the waste generators were found to lack standing.
Washoe County, supra; Ben Oehrleins , supra. Indeed, the
On the Green Court relied on Washoe County when it found
that the waste generator lacked standing with regard to its
second claim, i.e. a claim of financial injury merely because
it was forced to pay for unwanted services. Although the
courts did not always articulate the importance of direct

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involvement in the relevant interstate commerce decision
and injury related to the dormant Commerce Clause, those
considerations clearly run through each of these cases.

In Huish, for example, the Sixth Circuit held that the
waste generator who was subject to a local regulation which
required it to send all of its waste to a designated facility
had standing because it sought "to protect its right to
contract with a company that can transport its waste for
out-of-state processing and/or disposal." Huish, 214 F.3d
at 710-711 (emphasis added). The Huish Court also held
that the waste generator's direct participation in the sought
after out-of-state transaction distinguished Huish from the
Sixth Circuit's decision in Ben Oehrleins. Id. at 711. In On
the Green, standing was found as to a waste generator who
was a self-hauler who alleged that it could not contract
freely with out-of-state processors but, rather, was required
to haul only to a city landfill. In contrast, in Washoe County
and Ben Oehrleins -- and in the payment for unwanted
services claim in On the Green -- the waste generators who
lacked standing did not allege any direct participation in
the subject interstate commerce decision and alleged only
that they were subject to higher fees because of a local
ordinance. While I do not contend that this is the only
difference in these cases, it is a difference, I believe, of
utmost importance to the standing question.

The Building Owners fall into the latter category. For
starters, they do not allege that their ability to contract
directly with the hauler of their choice -- even an out-of-
state hauler -- is at issue in this case and, unlike the waste
generators in Huish and On the Green, they are not, as the
majority suggests, compelled to patronize the local market.
Rather, the transaction at issue here is the processing
decision -- where the waste ends up. The Building Owners
claim that the haulers with whom they contract are put in
an untenable position when they, the haulers, decide where
to tip the waste -- "untenable" (although that hardly seems
the right word) because they tip for free and thus it is
"obvious" they will tip at the Montenay facility. The Building
Owners do not allege any involvement in the decision
making process to determine where their waste is tipped,
nor do they allege that they seek to become self-haulers

                               16
and make this decision for themselves. Accordingly, even
accepting the Building Owners' allegations as true, I
conclude that any injury they suffer is derivative of their
haulers' injury and they are one step removed from the
interstate transaction or decision which is allegedly
burdened. Their interests, therefore, are too marginally
related to the purpose behind the dormant Commerce
Clause for them to have standing.

Nor am I convinced, as the majority seems to be, that the
Waste Generation Fee itself confers standing on the
Building Owners. If this case were akin to Camps or
General Motors, in which a party involved in the interstate
decision was assessed a discriminatory tax, I would not be
writing this dissent. Here, however, the Building Owners
are merely consumers of hauling services who are subject
to a flat fee for services they may not or do not want.
Without even an allegation that they are also parties to the
transaction or decision they claim is burdened or that their
ability to contract directly with an out-of-state company is
adversely affected, the injury of which the Building Owners
complain is simply not within the zone of interests the
Commerce Clause was intended to protect. I would affirm.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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