                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-1134


SANDLANDS C&D LLC; EXPRESS DISPOSAL SERVICE LLC,

                Plaintiffs - Appellants,

           v.

HORRY, COUNTY OF, a Political Subdivision of the State of
South Carolina acting by and through its duly elected County
Council; HORRY COUNTY SOLID WASTE AUTHORITY INC.,

                Defendants – Appellees.

---------------------------

DELAWARE COUNTY SOLID WASTE AUTHORITY; ECOMAINE; CITY AND
COUNTY   OF   HONOLULU;   INTERNATIONAL  MUNICIPAL   LAWYERS
ASSOCIATION;   LANCASTER   COUNTY  SOLID  WASTE   MANAGEMENT
AUTHORITY; MARION COUNTY, OREGON; MONTGOMERY COUNTY, OHIO;
NATIONAL ASSOCIATION OF COUNTIES; SOLID WASTE ASSOCIATION OF
NORTH AMERICA; SOLID WASTE AUTHORITY OF CENTRAL OHIO; SOLID
WASTE DISPOSAL AUTHORITY OF THE CITY OF HUNTSVILLE; SOUTH
CAROLINA ASSOCIATION OF COUNTIES; SOLID WASTE AUTHORITY OF
PALM BEACH COUNTY; PINE BELT REGIONAL SOLID WASTE MANAGEMENT
AUTHORITY; SPOKANE REGIONAL SOLID WASTE SYSTEM; WASATCH
INTEGRATED WASTE MANAGEMENT DISTRICT; YORK COUNTY SOLID
WASTE AND REFUSE AUTHORITY,

                Amici Supporting Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Florence.    Terry L. Wooten, Chief District
Judge. (4:09-cv-01363-TLW)


Argued:   October 31, 2013                  Decided:   December 3, 2013
Before WILKINSON, DUNCAN, and DIAZ, Circuit Judges.


Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Wilkinson and Judge Diaz joined.


ARGUED: Vincent Austin Sheheen, SAVAGE, ROYALL & SHEHEEN, LLP,
Camden, South Carolina, for Appellants.    Michael Warner Battle,
BATTLE & VAUGHT, PA, Conway, South Carolina, for Appellees. ON
BRIEF: Thomas S. Mullikin, MULLIKIN LAW FIRM, LLC, Camden, South
Carolina, for Appellants.       Emma Ruth Brittain, THOMAS &
BRITTAIN, P.A., Myrtle Beach, South Carolina; Stan Barnett,
SMITH, BUNDY, BYBEE & BARNETT, Mt. Pleasant, South Carolina, for
Appellees.   Scott M. DuBoff, Jeffrey C. Young, GARVEY SCHUBERT
BARER, Washington, D.C., for Amici Curiae. Michael F.X. Gillin,
Media, Pennsylvania, for Amicus Curiae Delaware County Solid
Waste Authority. Nicholas Nadzo, Mark Bower, JENSEN BAIRD
GARDNER & HENRY, Portland, Maine, for Amicus Curiae ecomaine.
Dana   Viola,   Deputy   Corporation   Counsel,   Department   Of
Corporation Counsel, CITY AND COUNTY OF HONOLULU, Honolulu,
Hawaii, for Amicus Curiae City and County of Honolulu.       Alex
Henderson,    HARTMAN    UNDERHILL   &    BRUBAKER,    Lancaster,
Pennsylvania, for Amicus Curiae Lancaster County Solid Waste
Management Authority.    Scott Norris, Assistant Legal Counsel,
Marion County, Oregon, for Amicus Curiae Marion County, Oregon.
Mathias H. Heck, Jr., Montgomery County, Ohio Prosecuting
Attorney, Dayton, Ohio, for Amicus Curiae Montgomery County,
Ohio.   Michael Belarmino, Associate General Counsel, NATIONAL
ASSOCIATION OF COUNTIES, Washington, D.C., for Amicus Curiae
National Association of Counties.    Moran M. Pope, III, POPE &
POPE, P.A., Hattiesburg, Mississippi, for Amicus Curiae Pine
Belt Regional Solid Waste Management Authority.    Barry Shanoff,
Rockville, Maryland, for Amicus Curiae Solid Waste Association
of North America. Michael C. Mentel, Chief Legal Officer, SOLID
WASTE AUTHORITY OF CENTRAL OHIO, Grove City, Ohio, for Amicus
Curiae Solid Waste Authority of Central Ohio. M. Clifton Scott
Jr., Senior Staff Attorney, SOUTH CAROLINA ASSOCIATION OF
COUNTIES, Columbia, South Carolina, for Amicus Curiae South
Carolina Association of Counties. Elizabeth Schoedel, Assistant
City Attorney, CITY OF SPOKANE, Spokane, Washington, for Amicus
Curiae Spokane Regional Solid Waste System. Charles H. Younger,
Huntsville, Alabama, for Amicus Curiae Solid Waste Disposal
Authority of the City of Huntsville, Alabama.




                                2
DUNCAN, Circuit Judge:

     Appellants       Sandlands         C&D,       LLC    (“Sandlands”)             and    Express

Disposal    Service,       LLC     (“EDS”)      contest         the    validity           of    Horry

County’s    Flow    Control        Ordinance,        which       prohibits          disposal       of

waste    generated        in    Horry    County          at    any    site     other       than    a

designated publicly owned landfill.                       The district court granted

summary    judgment        in    favor    of       Horry       County,        and    appellants

challenge its determination that the Ordinance violates neither

the Commerce Clause nor the Equal Protection Clause.                                       For the

reasons that follow, we affirm.


                                              I.

                                              A.

     Horry County occupies the northernmost coastal section of

South    Carolina.         Because       of    its       sixty-mile      coastline,            large

geographic    size,       seasonal       population           changes,       and     high       water

table,     landfill        waste     disposal            has     been        “expensive          and

difficult.”       See Horry Co., S.C., Ordinance 60-90, § 1 (Dec. 21,

1990).     Consequently, in 1990 the County Council established the

Horry County Solid Waste Authority, Inc. (“SWA”), a nonprofit

corporation, to manage the county’s solid waste.                                    Id. § 1.4.

Although    the     SWA    is    a   separate        legal       entity,        Horry          County

maintains power over it in multiple ways: approving its budget,

large     capital     expenditures,            and       real        estate    transactions;




                                               3
appointing its board of directors; wielding approval authority

over all bylaw amendments; and requiring that the Horry County

Treasurer hold all its funds and issue its checks.                        Furthermore,

the     IRS    categorizes      the    SWA       as   a   “governmental      unit”     or

“affiliate of a governmental unit.”                   On appeal, it is undisputed

that the SWA is a public entity.

       The SWA owns and operates two landfills (one for municipal

solid    waste    and    one    for    construction        and   demolition      (“C&D”)

waste) and a recycling facility in Horry County.                          In addition,

the SWA sponsors educational programs on recycling and runs a

green power facility that harnesses the methane gas emitted by

landfills to generate electricity.                    The SWA charges haulers and

others who use its landfills “tipping fees” based on the tonnage

of    trash    deposited.        These   fees,        which   are     standard   in   the

waste-disposal industry, provide revenue to fund SWA operations.

Haulers who recycle a specified percentage of the waste they

collect pay a reduced tipping fee through an application-based

recycling incentive program.

       On     March    17,     2009,   the       Horry    County      Council    enacted

Ordinance      02-09    (“Flow    Control        Ordinance”      or   “Ordinance”)     to

create a county-wide plan for solid waste disposal.                         Horry Co.,

S.C., Ordinance 02-09 (Apr. 7, 2009).                     The final version of the

Flow Control Ordinance, as amended on April 7, 2009, provides:




                                             4
      The County hereby designates the disposal facilities
      operated by the SWA and/or public owned facilities
      designated by the SWA for the acceptance or disposal
      of acceptable waste. The dumping or depositing by any
      person at any place other than at the designated
      facilities of any acceptable waste generated within
      the County is prohibited.

Id. § 2.1.1.    By requiring that all acceptable waste be disposed

of at SWA or other designated public landfills, the Ordinance

aims to conserve resources, prevent pollution, and protect the

public health, safety, and well-being.                 Id. § 1.1.       It also

ensures the SWA a revenue stream from the tipping fees haulers

must pay to deliver waste.

      To effect its objectives, the Ordinance sets out a detailed

regulatory    and   enforcement      framework.        It   defines    the   term

“acceptable     waste”       as      “ordinary     household,         municipal,

institutional, commercial and industrial solid waste” excluding

recyclables    as   well   as     hazardous   waste,   sewage,    agricultural

waste, biomedical waste, and certain types of nuclear waste.

Id.   §§   1.2.1,   1.2.14      (defining     acceptable    and   unacceptable

waste); §§ 6.1.2, 7.1.2, 8.1.5 (excluding recyclables).                 It also

sets out rules and licensing requirements for waste haulers.

Id. §§ 9–10.

      The Flow Control Ordinance has been largely successful in

ensuring that waste generated in Horry County is deposited at an

approved landfill within the county.               According to the South

Carolina Solid Waste Management Annual Reports from 2009, 2010,



                                        5
and 2011, an SWA facility processed 689,708 out of 691,552 tons,

or over 99% of the waste generated in the county during those

years.       J.A. 196–205. 1

       The       remaining    1,844    tons       of    waste       were    taken   to     four

landfills outside of the county: the Georgetown County Landfill,

the Berkeley County W&S Landfill, the Oakridge Landfill, and the

Richland Landfill.            Horry County and Georgetown County have an

intergovernmental             waste-sharing            agreement,           predating       the

enactment        of    the   Flow    Control      Ordinance,          under    which     waste

collected near the counties’ shared border may be taken to the

other county’s government-operated landfills.                              According to the

SWA, much of the waste taken to the other landfills was not

“acceptable waste” under the Flow Control Ordinance--in other

words, it was waste, such as the hazardous material asbestos,

that       the   SWA   landfills      cannot      process.            Horry    County      also

acknowledged          that   some    waste   may       have    been    removed      from    the

county without the SWA’s knowledge or consent.

                                             B.

       The enactment of the Flow Control Ordinance altered the

local      economy     of    waste    management.             For   example,     Sandlands,

which operates a private landfill for C&D waste in neighboring

Marion County, South Carolina, saw a significant decrease in its

       1
           References to the Joint Appendix are abbreviated “J.A.”




                                              6
business.    Because the Sandlands landfill is located only two

miles from the Horry County border, a significant portion of the

waste deposited there used to originate in Horry County.               The

Ordinance now prohibits haulers from bringing Horry County waste

to the Sandlands landfill in order to take advantage of its

lower tipping fees.      Sandlands has since struggled financially

because of its inability to replace the revenue stream lost as a

result of the Ordinance.

     EDS operates a waste hauling service in southeastern North

Carolina and northeastern South Carolina.        Prior to the passage

of the Flow Control Ordinance, EDS transported waste from Horry

County to the Sandlands landfill and received certain benefits

as a result, such as increased hours of access and special,

lower tipping fees.      EDS has been issued at least seventeen

citations for violating the Flow Control Ordinance.

     As an alternate business strategy, Sandlands attempted to

open a facility to process recovered materials 2 at its Marion

County site, where it would have sorted general C&D debris into

recyclable materials and landfill-ready waste.           When Sandlands

requested   permission   from   Horry   County   to   remove   mixed   C&D

     2
       Recovered materials are “materials or substances that
still have useful physical or chemical properties after serving
a specific purpose and can be reused or recycled for the same or
other purposes.”   Horry Co., S.C., Ordinance 02-09, § 1.2.11
(Apr. 7, 2009).




                                   7
debris for this purpose, a representative from the Horry County

Attorney’s Office responded, “[D]ebris from a construction site

that simply contains materials that have not yet been separated

is still solid waste and is subject to the requirements of the

ordinance.”         J.A. at 69.          No company has been allowed to take

mixed waste generated in Horry County outside of the county,

although two other companies extract recoverable materials from

acceptable waste at small transfer stations within Horry County.

                                            C.

        Appellants     brought      an    action    for     declaratory          judgment,

damages, and injunctive relief in South Carolina state court,

which       Horry   County   removed       to    federal    court.         Among    other

claims,       appellants     argued       that    the   Flow    Control          Ordinance

violates the Equal Protection Clauses of the United States and

South Carolina Constitutions, the Commerce Clause of the United

States      Constitution,     and    the    Contract       Clauses    of    the    United

States and South Carolina Constitutions. 3                   After a hearing, the

district       court   granted      Horry        County’s    motion        for    summary




        3
       In their amended complaint, appellants also alleged a
variety of constitutional, statutory, and torts claims.     In
addition, appellants argued that the Flow Control Ordinance is
preempted by the South Carolina Solid Waste Policy and
Management Act, S.C. Code Ann. § 44-96-10, et. seq.        The
district court certified that question to the South Carolina
Supreme Court, which responded that it was not preempted.




                                            8
judgment    as     to   each   of     the     causes      of    action.           This    appeal

followed.


                                             II.

      Appellants        contest     the      district         court’s      rulings       on   the

validity of the Flow Control Ordinance under the Commerce Clause

and Equal Protection Clause of the U.S. Constitution. 4                             As to the

“Dormant” Commerce Clause, appellants argue that the district

court     erred    by   failing       to    analyze      whether          the    Flow    Control

Ordinance is facially discriminatory, by misapplying the test

laid out in Pike v. Bruce Church, Inc.,                             397 U.S. 137 (1970),

and   by    ignoring        genuine    disputes          of    material         fact     at   the

summary-judgment          stage.       As    to    the    Equal       Protection         Clause,

appellants        contend    that     summary      judgment          is    not    appropriate

because there remain genuine disputes of material fact regarding

whether private companies are subject to differential treatment

under the Flow Control Ordinance.

      We review de novo the district court’s grant of summary

judgment.         Building Graphics, Inc. v. Lennar Corp., 708 F.3d

573, 578 (4th Cir. 2013).                  Summary judgment is appropriate when

the   moving      party     shows   that      there      is    no    genuine       dispute     of


      4
       Appellants do not mention a separate South Carolina Equal
Protection Clause claim in their appellate brief, so they have
waived this state law claim. Fed. R. App. P. 28(a)(8).




                                              9
material fact and it is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a).

                                                 A.

        Appellants         first    argue       that     the      Flow    Control        Ordinance

violates the Commerce Clause of the U.S. Constitution, which

gives    Congress          the   power     to    “regulate         Commerce       with       foreign

Nations,       and      among    the     several       States,      and     with       the    Indian

Tribes.”       U.S. Const. art. I, § 8, cl. 3.                      The Supreme Court has

interpreted          the    Commerce      Clause        as     also      having     a     negative

implication, often called the “Dormant Commerce Clause”: states

generally cannot pass protectionist measures that favor in-state

actors over out-of-state actors.                         See, e.g., Or. Waste Sys.,

Inc. v. Dep’t of Envtl. Quality, 511 U.S. 93, 99 (1994); City of

Philadelphia v. New Jersey, 437 U.S. 617, 623–24 (1978).                                          The

Supreme    Court          has    also    used    the     Dormant         Commerce       Clause     to

invalidate          locally       protectionist          measures         that      target        all

outsiders, not just those from other states.                                See, e.g., Dean

Milk     Co.       v.     City    of     Madison,       340       U.S.     349,     353       (1951)

(invalidating           under     the    Dormant       Commerce       Clause       a    municipal

ordinance          that     forbade       the     sale       of    milk     unless           it   was

pasteurized within five miles of the city center).

        We begin our Dormant Commerce Clause analysis by “ask[ing]

whether        a    challenged          law     discriminates            against        interstate

commerce.”         Dep’t of Revenue v. Davis, 553 U.S. 328, 338 (2008).



                                                 10
When a restriction on commerce is discriminatory--that is, it

benefits       in-state      economic         interests      while     burdening          out-of-

state economic interests--“it is virtually per se invalid.”                                   Or.

Waste Sys., 511 U.S. at 99.                      The state may only overcome the

presumption          of      unconstitutionality             by      showing        that      the

protectionist           measure    serves       a    legitimate      local      purpose      that

could    not       be     served       by    alternate,      nondiscriminatory             means.

Davis, 553 U.S. at 338; see also Maine v. Taylor, 477 U.S. 131,

138–40      (1986).           “Absent         discrimination         for     the        forbidden

purpose,” a statute affecting interstate commerce is subject to

the balancing test laid out in Pike.                         Davis, 553 U.S. at 338.

In   such      a   case,     the    law      “will    be    upheld    unless       the     burden

imposed on such commerce is clearly excessive in relation to the

putative local benefits.”                   Pike, 397 U.S. at 142.

       The recent Supreme Court decision in United Haulers Ass’n

v. Oneida-Herkimer Solid Waste Management Authority, 550 U.S.

330,     346       (2007),    is       not    only     instructive,        it      is     largely

dispositive of appellants’ Dormant Commerce Clause claims.                                    In

United Haulers, the Court upheld Oneida and Herkimer Counties’

flow control ordinances, which are remarkably similar to the one

at     issue       here.      The       Oneida       and    Herkimer       ordinances        also

“require[d]         haulers       to    bring       waste   to    facilities        owned     and

operated by a state-created public benefit corporation.”                                      550

U.S. at 334.              The Court first determined that the challenged



                                                11
flow    control       ordinances    are     not    discriminatory        because      they

favor    the    government       while     treating     all    private    parties      the

same.     Id. at 345.           Then, a plurality of the Court determined

that they withstood the Pike balancing test.                        Id. at 347.         We

now apply United Haulers to the facts before us.

                                            1.

       First, we must determine whether the Flow Control Ordinance

discriminates         against     interstate       commerce.        A    statute      will

almost     always       violate     the     Dormant      Commerce       Clause   if     it

“discriminates         facially,    in     its    practical     effect,     or   in    its

purpose.”       McBurney v. Young, 667 F.3d 454, 468 (4th Cir. 2012)

(internal quotations and citations omitted).                     In United Haulers,

the     Supreme       Court   determined         that   flow    control     ordinances

favoring       the     government      while      “treat[ing]     in-state       private

business interests exactly the same as out-of-state ones[] do

not ‘discriminate against interstate commerce’ for purposes of

the dormant Commerce Clause.”              550 U.S. at 345.

       As the Supreme Court reiterated in Davis, “a government

function is not susceptible to standard dormant Commerce Clause

scrutiny owing to its likely motivation by legitimate objectives

distinct       from    the    simple      economic      protectionism      the     Clause




                                            12
abhors.”         553 U.S. at 341. 5             Trash disposal is a traditional

function         of    local     government,           so       county     waste-management

ordinances            can     permissibly            distinguish          between       private

businesses        and       those     controlled           by   states,        counties,    and

municipalities.             See United Haulers, 550 U.S. at 342, 344.                       Like

the ordinances in United Haulers, the Horry County Flow Control

Ordinance “benefit[s] a clearly public facility.”                                   550 U.S. at

342.

       We now consider whether the Flow Control Ordinance treats

all private businesses alike.                   Appellants argue that it does not

and should thus be subject to the rule of per se invalidity for

discriminatory statutes under Oregon Waste Systems, 511 U.S. at

99.     We reject each of their arguments because the record does

not indicate that appellants have been treated differently from

other private businesses.

       Appellants           contend   that     the     Sandlands         landfill     has   been

treated     differently          from    the     landfill         owned        by   neighboring

Georgetown        County,       because      that      facility          has    continued     to

receive waste from Horry County, despite not being designated

under      the    Ordinance.            Under        the    Dormant       Commerce      Clause,


       5
        We decline appellants’ invitation to hunt for a
discriminatory  purpose in   the Flow   Control Ordinance’s
legislative history and County Council members’ post hoc
statements.




                                                13
however,     the    question       is   whether       Sandlands     has     been    treated

differently        from    other     private        businesses--not         other     public

entities.      Appellants’ argument that there is no justification

for    differential        treatment       of      public    and    private      landfills

misapprehends        the     public-private           distinction         articulated    in

United Haulers, which definitively distinguished the government-

favoring     Oneida        and     Herkimer        ordinances      from     an   ordinance

favoring a private facility that was struck down in C&A Carbone,

Inc. v. Town of Clarkstown, 511 U.S. 383 (1994).                            See 550 U.S.

at 341.

       Appellants          also      maintain         that      Horry       County       has

discriminated against them by not allowing them to process and

sort    mixtures     of     acceptable        waste    and    recyclables        at   their

facility in Marion County.                 The district court rejected this

argument and so do we, because appellants have not been treated

differently from other private businesses.                          Sandlands and EDS

could choose to separate recyclables and unacceptable waste from

acceptable waste covered by the Flow Control Ordinance, just as

other companies have done within Horry County.                             The extracted

recovered materials could then be removed to their facility in

Marion County.

       To conclude, because no private landfills can be designated

by     the   SWA,     all        private   landfills         are    treated        equally.

Furthermore,         all         private      haulers        are     prohibited         from



                                              14
transporting waste from Horry County to landfills not operated

by or designated by the SWA.             Under the Ordinance, EDS can still

haul Horry County waste to the SWA landfills, as do other local

hauling companies.        Therefore, the Flow Control Ordinance does

not discriminate against interstate commerce.

                                         2.

       Because the Flow Control Ordinance is not discriminatory,

we must consider its burdens and benefits under Pike. 6                   In Pike,

the   Supreme   Court     held    that    if   a   “statute     regulates    even-

handedly to effectuate a legitimate local public interest, and

its effects on interstate commerce are only incidental, it will

be upheld unless the burden imposed on such commerce is clearly

excessive in relation to the putative local benefits.”                    397 U.S.

at    142   (internal    citations       omitted).       Even     when    examining

county-level    regulations,       we    focus     on   burdens    to    interstate

commerce by asking whether there exists a “disparate impact on

out-of-state     as     opposed    to     in-state      businesses.”        United

Haulers, 550 U.S. at 346.

      6
       Appellants briefly assert that the trier of fact must make
its determinations before the application of the Pike test. The
posture of United Haulers itself belies this position. Although
United Haulers was decided “[a]fter years of discovery” in which
the district court judge “could not detect any disparate
impact,” 550 U.S. at 346 (emphasis omitted), it too was decided
at the summary-judgment stage, United Haulers Ass’n v. Oneida-
Herkimer Solid Waste Mgmt. Auth., 438 F.3d 150, 155 (2d Cir.
2006).




                                         15
      Here, we need not actually balance the interests laid out

in Pike because the Supreme Court has already done so.                                See

United Haulers, 550 U.S. at 346–47.                       In United Haulers, the

Court held that flow control ordinances do address a legitimate

local public interest.           Id. at 334.          It did not “decide whether

the   ordinances       impose[d]    any    incidental          burden    on    interstate

commerce” because it found that “any arguable burden does not

exceed the public benefits of the ordinances.”                      Id. at 346.       The

same analysis is applicable to the Horry County Flow Control

Ordinance,       because    it    clearly       confers    public       benefits     that

outweigh any conceivable burden on interstate commerce.

      To begin, the Flow Control Ordinance has only an arguable

effect on interstate commerce, even if it does affect intrastate

commerce to some degree.             Appellants have only shown that the

Flow Control Ordinance affects them; they have not shown it has

any   impact      on    out-of-state       businesses.            And     contrary     to

appellants’      contention      that     the    Flow     Control       Ordinance    only

generates revenue and confers no benefits, the record clearly

shows that the Flow Control Ordinance produces the same benefits

that the Supreme Court plurality recognized in United Haulers.

See   id.   at    346–47.        Moreover,      the     Flow    Control       Ordinance’s

waste-management program is a quintessential exercise of local

police      power,     which     courts      are      loathe       to     overturn    by




                                          16
substituting their judgment for that of local elected officials.

See id. at 347.

       Like the ordinances in United Haulers, the Horry County

Ordinance provides “a convenient and effective way to finance

[an] integrated package of waste disposal services.”                                          Id. at

346.     The Ordinance creates a revenue stream through which the

county can support waste management, recycling programs, and its

911 calling system.                Although revenue generation alone cannot

justify facial discrimination, United Haulers recognized that it

can    constitute         a     benefit       under      the      Pike    test.         Id.      The

Ordinance          also         confers        other          “significant         health        and

environmental         benefits.”              See    id.     at   347.       Examples     include

public      education         about    recycling,            increased     opportunities         for

recycling,         and    the    operation          of   a    green      power   facility       that

generates electricity using landfill gas.                             In fact, the SWA has

won    statewide         awards    for        its    environmentally         friendly         waste-

management programs.

       In sum, the Horry County Flow Control Ordinance provides

the same types of benefits and imposes the same types of burdens

as    the    ordinances          upheld       in    United        Haulers.         We   therefore

conclude that it does not violate the Dormant Commerce Clause.

To hold otherwise would ignore precedents ensuring that this

court       does    not       become      a    superlegislature             that    “rigorously




                                                    17
scrutinize[s] economic legislation passed under the auspices of

the police power.”             United Haulers, 550 U.S. at 347.

                                                   3.

       Appellants argue that summary judgment is not appropriate

because       there       is   a    factual        dispute         about   whether        the    Flow

Control       Ordinance        discriminates            against        interstate         commerce.

The record, however, does not reveal any disputes of material

fact.     At summary judgment, “[a]lthough the court must draw all

justifiable         inferences          in    favor     of     the    nonmoving      party,       the

nonmoving party must rely on more than conclusory allegations,

mere speculation, the building of one inference upon another, or

the    mere        existence       of    a    scintilla        of     evidence.”           Dash    v.

Mayweather, 731 F.3d 303, 311 (4th Cir. 2013).

       Appellants allege that the SWA discriminates by allowing

some haulers to take waste to landfills outside of Horry County,

while penalizing EDS for attempting to do the same.                                       The only

evidence appellants cite for their argument, however, is that

1,844 tons of waste have left Horry County since 2009.                                             In

response, SWA officials testified that all Horry County waste

that    has    not     been        disposed        of   at    an     SWA   or   another      public

landfill       has     either        constituted             unacceptable         waste     falling

outside       of    the    Ordinance          or    been     removed       without    the       SWA’s

knowledge      or     approval.              Sandlands       and     EDS   have    presented       no

evidence to contradict this testimony, and the record does not



                                                   18
show    that    EDS     has    been     cited    for      taking       trash       to     a    public

landfill.

                                               B.

        Finally,        appellants        challenge          the           district           court’s

determination that the Flow Control Ordinance does not violate

the     Equal      Protection         Clause         of     the       U.S.         Constitution.

Appellants       argue        that    summary        judgment         is     not    appropriate

because material issues of fact remain regarding whether they

were     in     fact    treated       like      similarly         situated          businesses.

Sandlands and EDS allege the same factual disputes under the

Equal    Protection          Clause     that    we     rejected        under        the       Dormant

Commerce Clause.         We reject them here as well.

       The      Equal        Protection        Clause       prohibits              states       from

“deny[ing]       to    any     person    within       its    jurisdiction               the    equal

protection of the laws.”                 U.S. Const. amend. XIV, § 1.                             “To

succeed on an equal protection claim, a plaintiff must first

demonstrate that he has been treated differently from others

with     whom    he     is     similarly       situated         and        that    the        unequal

treatment        was     the     result         of     intentional            or        purposeful

discrimination.”             Morrison v. Garraghty, 239 F.3d 648, 654 (4th

Cir. 2001).            If a plaintiff makes this initial showing, the

court    analyzes       the     disparity       under      an     appropriate            level    of

scrutiny.       Id.     However, we do not reach that level of analysis

because Sandlands and EDS have failed to show that they have



                                               19
been   intentionally   treated   differently   from   other   similarly

situated companies.     Summary judgment is therefore appropriate

on appellants’ Equal Protection Clause claim.



                                 III.

       For the foregoing reasons, the judgment of the district

court is

                                                              AFFIRMED.




                                  20
