                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-6-2008

Lebanon Farms v. Lebanon
Precedential or Non-Precedential: Precedential

Docket No. 06-3473




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                                   PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


          Nos. 06-3473 and 06-3474


    LEBANON FARMS DISPOSAL, INC.

                         v.

       COUNTY OF LEBANON;
GREATER LEBANON REFUSE AUTHORITY


                County of Lebanon,
                 Appellant No. 06-3473


         Greater Lebanon Refuse Authority,
                 Appellant No. 06-3474


On Appeal from the United States District Court
    for the Middle District of Pennsylvania
            (D.C. No. 03-cv-006820)
 District Judge: The Honorable Yvette Kane


             Argued June 3, 2008
       Before: FISHER and JORDAN, Circuit Judges,
                and YOHN,* District Judge.

                    (Filed: August 6, 2008)

Stephanie E. DiVittore
Charles E. Gutshall (Argued)
Rhoads & Sinon
One South Market Square
P.O. Box 1146, 12th Floor
Harrisburg, PA 17108
       Attorneys for Appellee

James J. Kutz (Argued)
Paula J. McDermott
Post & Schell
17 North 2nd Street
12th Floor
Harrisburg, PA 17101

David L. Schwalm
Thomas, Thomas & Hafer
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108
       Attorneys for Appellants


       *
         The Honorable William H. Yohn Jr., United States
District Judge for the Eastern District of Pennsylvania, sitting by
designation.

                                2
                 OPINION OF THE COURT


YOHN, District Judge.

       The County of Lebanon (“County”) and the Greater
Lebanon Refuse Authority (“GLRA”)1 appeal the District
Court’s July 5, 2006 decision granting plaintiff Lebanon Farms
Disposal, Inc.’s (“Lebanon Farms”) motion for partial summary
judgment. Applying a strict scrutiny standard, the District Court
held that the County’s Municipal Waste Management Ordinance
No. 15 and Sections V and X(3) of the GLRA’s July 5, 2005
Regulations (collectively, “flow control ordinances”) that
benefitted the GLRA’s public waste disposal site violated the
dormant Commerce Clause of the United States Constitution.
The District Court therefore permanently enjoined the County
and the GLRA from enforcing the flow control ordinances.
While the County and the GLRA’s appeal of that decision was
pending, the Supreme Court decided United Haulers Ass’n v.
Oneida-Herkimer Solid Waste Management Authority, ___ U.S.
___, 127 S. Ct. 1786 (2007). In Part II.C of United Haulers, a
majority of the Court held that the “virtually per se rule of
invalidity” that applies to flow control ordinances that benefit


       1
        The GLRA is a municipal authority created under and
authorized by the Pennsylvania Municipalities Act, 53 Pa. Cons.
Stat. §§ 5601 et seq. It is comprised of representatives of
twenty-five municipalities in the County.

                               3
private entities and that “can only be overcome by a showing
that the State has no other means to advance a legitimate local
purpose” does not apply to challenges of nondiscriminatory flow
control ordinances that benefit public waste disposal facilities.
Id. at 1793, 1797. In Part II.D, a plurality of the Court
instructed lower federal courts to perform the balancing test set
forth in Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970),
when considering dormant Commerce Clause challenges to
nondiscriminatory flow control ordinances that benefit public
facilities with only incidental effects on interstate commerce.
United Haulers, 127 S. Ct. at 1797. United Haulers controls
this case and requires us to vacate the District Court’s grant of
partial summary judgment and the resulting permanent
injunction. Because the District Court should make necessary
findings of fact and conclusions of law and perform the Pike
balancing test in the first instance, we will remand.

                               I.

        In 1988, the Pennsylvania General Assembly adopted the
Municipal Waste Planning, Recycling and Waste Reduction Act,
53 Pa. Cons. Stat. § 4000.101 et seq. (“Act 101”). Act 101
charges counties with the responsibility for planning and
coordinating municipal waste disposal and ensuring adequate
landfill capacity through recurring ten-year planning processes.
The County complied with Act 101 by adopting the 1990
Municipal Waste Management Plan (“1990 Plan”). As a result
of a detailed study, the 1990 Plan recommended that the County
continue municipal waste disposal at a GLRA-owned and
GLRA-run landfill, various portions of which had been used by
the GLRA since its formation in 1959. The 1990 Plan also

                               4
recommended that the County enact a waste management
ordinance, including a waste flow control plan.2

       The County adopted Ordinance 15 on June 6, 1991.
Ordinance 15 implements the 1990 Plan and grants the GLRA
authority to control the County’s waste management. Sections
2 and 3 of Ordinance 15 establish a licensing and waste flow
control scheme regulating the collection and transport of all
municipal waste generated within the county. Section 2(a)
requires that any waste collectors within the County obtain a
license from the GLRA. Both in-state and out-of-state private
haulers may obtain a license and collect waste in the County,
subject to a uniform “tipping fee.” 3 The waste flow control
provisions of Section 3 require the licensed collectors to deliver




       2
         Throughout this opinion, we employ the term “waste” to
refer to the “municipal waste” covered by the relevant plans and
ordinances and as defined in Act 101, 53 Pa Cons. Stat.
§ 4000.103.
       3
        Tipping fees are disposal charges levied against
collectors who drop off waste at a processing facility. “They are
called ‘tipping’ fees because garbage trucks literally tip their
back end to dump out the carried waste.” United Haulers, 127
S. Ct. at 1791 n.1. During the period relevant to this case, the
GLRA set the tipping fee at $62.70 per ton, including a $15.00
per ton surcharge covering recycling programs, administration
and enforcement costs, and costs for maintaining
environmentally safe closed landfills.

                                5
the waste to a “Designated Facility” 4 unless “permitted by rule,
regulation, ordinance, or order duly issued by the [GLRA].” 5
Various provisions of Ordinance 15 authorize the GLRA to
adopt rules and regulations, to issue and revoke licenses and
collect license fees, to identify designated facilities, to set
system tipping fees, to establish penalties for violations, to
enforce penalties, and to perform other governing and
administrative tasks.




       4
        Section 1 of Ordinance 15 defines a Designated Facility:
“Any municipal waste storage, collection, transfer, processing,
or disposal facility or site constructed, owned, or operated by or
on behalf of the [GLRA].”
       5
       Section 3 of Ordinance 15, titled “Waste Flow Control,”
provides:
             (a) Delivery to Designated Facility. Except
      as provided in (b) and (c) below, all Regulated
      Municipal Waste shall be delivered to a
      Designated Facility.
             (b) Delivery to Other Sites. Delivery of
      Regulated Municipal Waste to other sites
      pursuant to the Plan may occur only as permitted
      by rule, regulation, ordinance, or order duly
      issued by the [GLRA].
             (c) Recycling. Nothing herein shall be
      deemed to prohibit Source Separation or
      Recycling or to affect any sites at which Source
      Separation or Recycling may take place.

                                6
        Pursuant to Act 101’s ten-year-review protocol, the
County amended the 1990 Plan with the 2000-2010 Lebanon
County Municipal Waste Management Plan (“2000 Plan”).
Both the 1990 Plan and the 2000 Plan were submitted to and
approved by the County Advisory Committee, subjected to
public review, ratified by the municipalities in the County, and
submitted to and approved by the Pennsylvania Department of
Environment Protection (“DEP”).6 The 2000 Plan discusses the
desirability of continued waste flow control to ensure adequate
processing and disposal capacity; to maintain sufficient revenue
to cover the costs of planning, implementation, administration,
recycling support, landfill monitoring, and enforcement; and to
ensure proper disposal of municipal waste, including recycling
mandates. The 2000 Plan also permits the GLRA to approve
interstate waste shipments after it reviews the out-of-state
receiving facilities.7


       6
       The 1990 Plan was submitted to the DEP’s precursor,
the Department of Environmental Resources (“DER”). Prior to
1995, the DER was charged with implementing Act 101. In
1995, the DER was renamed the DEP. 71 Pa. Stat. Ann.
§ 1340.501. The DEP was charged with continuing the duties
of the DER, unless otherwise specified by legislation. Id.
§ 1340.503. The DEP’s Environmental Quality Board thus
became responsible for the powers and duties specified in Act
101. Id. § 1340.502(c).
       7
        Under the new waste flow control system,
              [a]ny out-of-state disposal facility, or
       hauler, applying for contractual approval to

                               7
       Pursuant to the authority granted to it by Ordinance 15,8
the GLRA adopted regulations governing waste disposal in the
County, most recently amending them on July 5, 2005. Section
V of the July 5, 2005 Regulations designates one facility for
municipal waste disposal—the GLRA-owned landfill.9 The



       dispose of Lebanon County municipal waste at an
       out-of-state facility will be required to provide the
       same capacity assurance to the County which the
       GLRA has provided and thereby reduce the
       capacity assurance which the GLRA has provided
       the County for the remainder of the assured term.
       The out-of-state facility will also be required to
       pay their [sic] fair share of recycling,
       enforcement, administrative, and environmental
       mitigation costs which would otherwise be paid
       by the generators as part of the GLRA tipping fee.
The District Court found that after the County adopted the 2000
Plan, it did not amend Ordinance 15 to make this specific
provision for out-of-state transportation of County waste. The
District Court, therefore, did not consider the 2000 Plan in its
decision.
       8
        On September 17, 1998, the County and the GLRA
entered into a formal agreement memorializing the authority of
the GLRA.
       9
        Section V specifies:
              The [GLRA] Landfill is the designated site
       for disposal of municipal waste and

                               8
Regulations allow a collector to deliver waste to another point
of delivery with the GLRA’s prior written approval. Under
Section X(3) of the Regulations, the GLRA can impose
penalties for noncompliant transport of municipal waste to
another site, including a fine of $2000 per occurrence.10



       construction/demolition waste generated in
       Lebanon County by the [2000 Plan]. All
       Regulated Municipal Waste collected by a
       commercial waste service, shall be transported
       directly from the point of collection to the GLRA
       facility or other approved point of delivery in
       accordance with these Rules and Regulations.
       Any intervening transfer, unloading, processing,
       sorting, salvaging, scavenging or reuse is
       prohibited.
       10
        Section X(3), titled “Diversion of Regulated Municipal
Waste (from County Plan Designated Facility),” provides:
             For Regulated Municipal Waste . . .
      originating in Lebanon County, which is
      transported to any location other than a GLRA
      Facility without the prior written approval of the
      GLRA, a penalty will be charged to the company
      and/ or Person operating the vehicle. . . .
             The penalty for any hauler who diverts
      municipal waste from the Designated Facility, the
      [GLRA] Landfill, is established at $2,000.00 per
      occurrence. . . .
             The penalty will be invoked immediately

                              9
        In 2003, under a GLRA-issued license, Lebanon Farms
hauled waste generated in the County. Twice, on March 18,
2003 and April 3, 2003, the GLRA fined Lebanon Farms for
transporting County municipal waste out of the County to the
Pine Grove Landfill in Schuylkill County. At the Pine Grove
Landfill, Lebanon Farms’s drivers misrepresented the origin of
the waste loads as Berks County. Lebanon Farms did not
request approval to haul waste to a site other than the GLRA
landfill.11

        On April 23, 2003, Lebanon Farms brought this suit to
challenge the flow control ordinances. The Complaint alleged,
inter alia, that the ordinances violate the dormant Commerce



       after it can be shown that Lebanon County
       Municipal Waste was diverted from the approved
       GLRA facility.
       11
          At oral argument, appellants stated that only one
nonparty waste hauler had ever applied for an exception under
Section 3(b) of Ordinance 15 to transport waste to an alternative
facility. The GLRA granted the exception, but the hauler did
not exercise its option. Lebanon Farms admitted that it had not
applied for exceptions for the waste loads that led to the fines
against it. On remand, the District Court may want to make
relevant findings of fact as to the ability of waste haulers to
apply for and receive exceptions authorizing them to haul waste
to non-GLRA landfills because such a process, if it affords a
realistic opportunity for success, reduces the burden on interstate
commerce for the purpose of applying the Pike balancing test.

                                10
Clause. In Count I, Lebanon Farms sought an injunction
prohibiting the County and the GLRA from enforcing the
ordinances, and it sought damages in Count II. Counts III, IV,
V, and VI alleged, respectively, a violation of procedural due
process; retaliation; a pendant state law claim for violation of
Act 90 of 2002, 27 Pa. Cons. Stat. § 6201 et seq.; and a pendant
state law claim for an invalid monetary penalty assessment.12
On July 28, 2004, the GLRA counterclaimed for breach of the
licensing agreement and associated damages.

      On July 5, 2006, the District Court granted partial
summary judgment in favor of Lebanon Farms and against the
County and the GLRA on Count I.13 In light of C&A Carbone


       12
        On July 9, 2004, the District Court dismissed Count V,
the pendant state-law claim for violation of Act 90. The
contemporaneous memorandum also indicated that plaintiff
withdrew Count III, the procedural due process claim, and
Count VI, the pendant state-law claim for invalid monetary
penalty assessment. (See July 9, 2004 Mem. & Order 2 n.1)
Lebanon Farms’s withdrawal of Count VI is inconsistent,
however, with the County’s and the GLRA’s later motions for
summary judgment on Count VI. On July 5, 2006, the District
Court denied those requests as part of its denial of the
unaddressed remainder of the defendants’ motions.
       13
       The District Court also granted the motions for
summary judgment of the County and the GLRA as to Count IV,
which was Lebanon Farm’s retaliation claim. Only the partial
summary judgment on Count I is at issue in this appeal.

                              11
v. Town of Clarkstown, 511 U.S. 383 (1994) and Harvey &
Harvey, Inc. v. County of Chester, 68 F.3d 788 (3d Cir. 1995),
the District Court held that waste disposal is part of interstate
commerce, that the flow control ordinances discriminated
against interstate commerce, and that the ordinances failed the
then-applicable strict scrutiny standard for constitutionality.

       In Carbone, the Supreme Court considered a flow control
ordinance that directed all of a town’s nonhazardous solid waste
to a privately owned waste transfer station. 511 U.S. at 387.
The Court stated that “[d]iscrimination against interstate
commerce in favor of local business or investment is per se
invalid, save in a narrow class of cases in which the municipality
can demonstrate, under rigorous scrutiny, that it has no other
means to advance a legitimate local interest.” Id. at 392
(emphasis added). Under that standard, the Court held that the
ordinance discriminated against interstate commerce by
“hoard[ing] solid waste, and the demand to get rid of it, for the
benefit of the preferred processing facility.” Id.

       This court applied Carbone in Harvey by “focus[ing] on
the process of selecting waste service providers rather than on
the effect of the regulation once a provider or providers have
been chosen.” 68 F.3d at 802 (citing Atl. Coast Demolition &
Recycling, Inc. v. Bd. of Chosen Freeholders of Atl. County, 48
F.3d 701, 713 (3d Cir. 1995)). The court considered the flow
control regulations of Chester and Mercer Counties,
Pennsylvania. Id. at 791. The Chester County regulations
designated county-owned and privately owned in-state waste
disposal facilities, although they capped waste flows to the
private landfill. Id. at 794-95. The Mercer County regulations

                               12
designated a single, private, in-state waste disposal facility for
all waste flows. Id. at 796. We instructed:

       To determine whether these flow control schemes
       actually discriminate against interstate commerce
       (triggering strict scrutiny analysis) the court must
       closely examine, for signs that out-of-state
       bidders do not in practice enjoy equal access to
       the local market, the following:            (1) the
       designation process; (2) the duration of the
       designation; and (3) the likelihood of an
       amendment to add alternative sites.

Id. at 801. Applying these criteria to the Chester County
regulations, the court noted that “it appears that Chester
County’s designation process for the ten-year planning period
did not afford other sites, including out-of-state sites, a level
playing field,” but remanded to allow the district court to apply
the principles in the first instance. Id. at 807. The court in
particular focused on the protectionist impact of the county’s
financial interests because of its ownership of one of the waste
disposal sites and its guarantee of debt secured by the waste
authority on another site. Id. at 806-07. With regard to the
Mercer County regulations, the court held that the “facts
certainly suggest that the process was fair, open, and
competitive” for the ten-year planning period, but that on
remand the district court should consider if the “specifications
of the bid or decisional criteria” had a “discriminatory effect.”
Id. at 808.



                               13
       The District Court in the case below applied Harvey’s
three-part test to conclude that the County and the GLRA
discriminated against interstate commerce. It found that the
closed designation process, the long duration of the designation,
and the unlikelihood of amendment all evidenced discrimination
against interstate commerce. Based on these determinations and
pursuant to the then-prevailing authority of Harvey, the District
Court applied a strict scrutiny standard of review to the flow
control ordinances and rejected the County and the GLRA’s
request that the court apply the alternative, fact-intensive Pike
balancing test reserved for nondiscriminatory laws directed at
local concerns with incidental effects on interstate commerce.
As a result, the District Court declared the flow control
ordinances unconstitutional because they violated the dormant
Commerce Clause and permanently enjoined the County and the
GLRA from enforcing those ordinances. The District Court
refrained from entering a final judgment, however, because
genuine issues of material fact remained regarding the
imposition of the monetary damages requested in Count II. The
County and the GLRA appealed the entry of partial summary
judgment on July 27, 2006, and on September 5, 2006, the
District Court stayed the request for monetary damages pending
the outcome of defendants’ appeal.

       On September 13, 2007, a separate panel of this court
ordered briefing regarding the impact of the Supreme Court’s
intervening decision in United Haulers and, in particular, the




                               14
significance, if any, of the plurality’s application of the
balancing test set forth in Pike.14

                                II.

       The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1367. We have jurisdiction under 28 U.S.C.
§ 1292, which provides for review of the District Court’s
interlocutory order granting an injunction. We engage in
plenary review of the District Court’s grant of summary
judgment. See, e.g., Doe v. Abington Friends Sch., 480 F.3d
252, 256 (3d Cir. 2007). When reviewing final injunction
orders, we “must accept the trial court’s findings of historical or
narrative fact unless they are clearly erroneous, . . . but we must
exercise a plenary review of the trial court’s choice and
interpretation of legal precepts and its application of those
precepts to the historical facts.” Int’l Union, United Auto.,
Aerospace & Agr. Implement Workers v. Mack Trucks, Inc., 820
F.2d 91, 95 (3d Cir. 1987) (quoting Universal Minerals, Inc. v.
C.A. Hughes & Co., 669 F.2d 98, 103 (3d Cir. 1981)). In


       14
          After United Haulers was decided on April 20, 2007,
appellants filed a motion for summary action pursuant to Third
Circuit Local Appellate Rule 27.4 asking the court to vacate the
injunction and remand to the District Court with instructions to
decide the case in light of the United Haulers decision.
Appellee filed a response, and, on September 13, 2007, the
panel denied the motion for summary action and ordered the
parties to file briefs discussing the impact of the United Haulers
decision.

                                15
contrast, we apply an abuse of discretion standard to the District
Court’s decision to grant an injunction. See id. at 94-95.
Because the issue before us is whether an intervening decision
of the Supreme Court superceded the District Court’s
application of pre-existing law, not the District Court’s findings
of facts, plenary review is appropriate here.

                               III.

        The intervening Supreme Court decision in United
Haulers controls the resolution of this appeal. For Parts I and
II.A-C of United Haulers, Chief Justice Roberts authored a
majority opinion joined by Justices Scalia, Souter, Ginsburg, and
Breyer. 127 S. Ct. at 1789-90. Part II.D of Chief Justice
Roberts’s opinion was joined by Justices Souter, Ginsburg, and
Breyer, making it a four-Justice plurality opinion. Id. The
plurality held that the Pike balancing test applies to waste flow
regulations benefitting public entities with incidental effects on
interstate commerce. Id. at 1797. Justice Scalia did not join
Part II.D, but concurred in the judgment. Id. at 1798-99. Justice
Thomas also concurred in judgment, but did not join any part of
Chief Justice Roberts’s opinion. Id. at 1799-1802. Both
Justices Scalia and Thomas issued concurring opinions,
concluding for differing reasons that the dormant Commerce
Clause did not apply to the case, so the flow control ordinances
should be beyond the scrutiny of the courts altogether. Id. at
1798-99 (Scalia, J., concurring in part) (concurring that the
dormant Commerce Clause does not apply to a flow control
ordinance that “benefits a public entity performing a traditional
local-government function and treats all private entities
precisely the same way,” but refusing to join the plurality’s

                               16
application of Pike because “the balancing of various values is
left to Congress”); id. at 1799 (Thomas, J., concurring in
judgment) (concurring in judgment only because the dormant
Commerce Clause “has no basis in the Constitution and has
proved unworkable in practice”). Because under the reasoning
of their concurring opinions Justices Scalia and Thomas would
agree that a flow control ordinance that passes the Pike
balancing test is constitutional, the plurality’s conclusion in Part
II.D is both the narrowest of the opinions and the common
denominator of the Court’s resulting decision, thus representing
the holding of the Court. See Marks v. United States, 430 U.S.
188, 193 (1977); Anker Energy Corp. v. Consolidation Coal
Co., 177 F.3d 161, 170-71 (3d Cir. 1999); Rappa v. New Castle
County, 18 F.3d 1043, 1056-60 (3d Cir. 1994); Planned
Parenthood of Se. Pa. v. Casey, 947 F.2d 682, 694 n.7 (3d Cir.
1991) (holding that “[w]hen six or more Justices join in the
judgment and they issue three or more opinions,” the holding of
the Court is the “opinion of the Justice or Justices who
concurred on the narrowest grounds necessary to secure a
majority”), modified on other grounds, 505 U.S. 833 (1992);
King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (holding
that the determinative question is whether the other concurring
Justices would subscribe to or agree with the reasoning of the
narrower concurring opinion) (citing Gregg v. Georgia, 428
U.S. 153, 169 n.15 (1976); Marks, 430 U.S. at 193)). The
parties do not dispute that the plurality’s opinion in Part II.D is
the holding of the Court for that Part.15


       15
         The plurality’s opinion in Part II.D also conforms to
existing precedent. The majority concluded in Part II.C that the

                                17
        United Haulers recognized that there are two ways to
violate the dormant Commerce Clause: (1) facial discrimination
against interstate commerce, see United Haulers, 127 S. Ct. at
1793 (holding that “[i]n this context, ‘discrimination’ simply
means differential treatment of in-state and out-of-state
economic interests that benefits the former and burdens the
latter” (internal quotation marks omitted)); and (2) where “the
burden imposed on [interstate] commerce is clearly excessive in
relation to the putative local benefits,” id. at 1797 (internal
quotation marks omitted); see also Raymond Motor Transp., Inc.
v. Rice, 434 U.S. 429, 440 (1978); Pike, 397 U.S. at 142. See
generally Or. Waste Sys., Inc. v. Dep’t of Envtl. Quality of Or.,
511 U.S. 93, 99 (1994) (explaining the two ways to identify a
violation of the dormant Commerce Clause).

                               A.

       The Court’s majority opinion in Part II.C of United
Haulers removes this case from the facial discrimination
category of dormant Commerce Clause violations. United
Haulers held that flow control ordinances that benefit a “clearly


waste flow controls benefitting public entities without treating
private entities differently are not discriminatory. Under prior
dormant Commerce Clause case law, nondiscriminatory
regulations directed to legitimate local concerns with incidental
effects on interstate commerce should be analyzed using the
Pike balancing test. See, e.g., Philadelphia v. New Jersey, 437
U.S. 617, 624 (1978). But see United Haulers, 127 S. Ct. at
1798-99 (Scalia, J., concurring in part).

                               18
public facility” and “which treat 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.” 127 S. Ct. at 1795, 1797. The
United Haulers majority distinguished Carbone’s rigorous
scrutiny analysis as applying only to regulations that favor
private waste disposal sites, see 127 S. Ct. at 1795, thus
overruling Harvey to the extent it supports the application of
strict scrutiny to publicly operated waste disposal sites like the
GLRA site, see 68 F.3d at 806-07.16 The Court in United
Haulers explained that “[c]ompelling reasons justify treating
these laws differently from laws favoring particular private



       16
         An intervening decision of the Supreme Court is a
sufficient basis for us to overrule a prior panel’s opinion without
referring the case for an en banc decision. See Mennen Co. v.
Atl. Mut. Ins. Co., 147 F.3d 287, 294 n.9 (3d Cir. 1998) (holding
that the internal procedure prohibiting “a panel of this court
from overruling a holding of a prior panel expressed in a
published opinion” nonetheless “gives way when the prior
panel’s holding is in conflict with Supreme Court precedent”)
(citing Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d
258, 266 n.6 (3d Cir. 1995), and Rubin v. Buckman, 777 F.2d
71, 73-74 (3d Cir. 1984) (Garth, J., concurring)); Reich v. D.M.
Sabia Co., 90 F.3d 854, 858 (3d Cir. 1996) (holding that
“[a]lthough a panel of this court is bound by, and lacks authority
to overrule, a published decision of a prior panel, . . . a panel
may reevaluate a precedent in light of intervening authority”
(internal cross-reference omitted)).

                                19
businesses over their competitors.” 127 S. Ct. at 1795.17
Lebanon Farms concedes that the flow control ordinances in this
case benefit a public waste disposal site and treat in-state private
businesses exactly the same as out-of-state ones. Thus, in light
of United Haulers Part II.C,18 we must vacate the District


       17
          The most compelling reason is that state and local
governments, unlike private businesses, are responsible for “the
health, safety, and welfare of [their] citizens.” United Haulers,
127 S. Ct. at 1789 (citing Metro. Life Ins. Co. v. Massachusetts,
471 U.S. 724, 756 (1985) (holding that “[s]tates traditionally
have had great latitude under their police powers to legislate as
to the protection of the lives, limbs, health, comfort, and quiet
of all persons” (internal quotation marks omitted from original)).
       18
         This case seems indistinguishable from United Haulers
in all material ways for the purpose of the facial discrimination
analysis conducted by the Court in Part II.C. As in United
Haulers, the flow control ordinances in this case clearly benefit
a public facility, the GLRA. Similarly, the flow control policies
“enable the Count[y] to pursue particular policies with respect
to the handling and treatment of waste generated in the
Count[y], while allocating the costs of those policies on citizens
and businesses according to the volume of waste they generate,”
127 S. Ct. at 1796. This case also implicates the decision of
local voters, or their elected officials, “on whether government
or the private sector should provide waste management
services,” 127 S. Ct. at 1796. Finally, “the most palpable harm
imposed by the ordinances—more expensive trash removal—is
likely to fall upon the very people who voted for the laws,”

                                20
Court’s grant of partial summary judgment, declaration that the
ordinances were unconstitutional, and issuance of a permanent
injunction against their enforcement, which were based on our
Harvey precedent.19 Our analysis does not end there, however.

                               B.

       “Concluding that a state law does not amount to
forbidden discrimination against interstate commerce is not the
death knell of all dormant Commerce Clause challenges, for we
generally leave the courtroom door open to plaintiffs invoking
the rule in Pike, that even nondiscriminatory burdens on
commerce may be struck down on a showing that those burdens



through higher than expected tipping fees which are passed on
to the consumer, 127 S. Ct. at 1797. As with United Haulers,
“[t]here is no reason to step in and hand local businesses a
victory they could not obtain through the political process,” id.
       19
         As noted above, in granting partial summary judgment,
the District Court relied on our decision in Harvey, which in part
applied to publicly owned waste disposal sites the rigorous
scrutiny review that the Supreme Court applied in Carbone. See
68 F.3d at 806-07. United Haulers squarely raised the issue left
open by Carbone—whether rigorous scrutiny applies to publicly
owned waste disposal sites—an issue that Harvey implicitly
answered in the affirmative. Harvey’s application has now been
overruled to the extent it suggests the application of strict
scrutiny to nondiscriminatory regulations benefitting public
waste disposal sites.

                               21
clearly outweigh the benefits of a state or local practice.” Dep’t
of Revenue of Ky. v. Davis, ___ U.S. ___, 128 S. Ct. 1801, 1817
(2008). The United Haulers plurality in Part II.D concluded that
nondiscriminatory “flow control ordinances are properly
analyzed under the test set forth in Pike . . ., which is reserved
for laws directed to legitimate local concerns, with effects upon
interstate commerce that are only incidental.” 127 S. Ct. at 1797
(internal quotation marks and citations omitted). Using the Pike
test, a court will “uphold a nondiscriminatory statute like this
one unless the burden imposed on [interstate] commerce is
clearly excessive in relation to the putative local benefits.” Id.
(internal quotation marks and citations omitted).

       The flexible Pike balancing test thus weighs the extent of
the incidental burden on interstate commerce against the
putative local benefits:

       If a legitimate local purpose is found, then the
       question becomes one of degree. And the extent
       of the burden that will be tolerated will of course
       depend on the nature of the local interest
       involved, and on whether it could be promoted as
       well with a lesser impact on interstate activities.

Pike, 397 U.S. at 142. The Pike balancing is carried out in light
of our hesitation to interfere in internal policy decisions
traditionally vested with local governments. For example,
federal courts hold sacrosanct “state legislation in the field of
safety where the propriety of local regulation has long been
recognized.” Pike, 397 U.S. at 143.


                               22
                                C.

        In this case, although the parties agree that United
Haulers controls the outcome of this appeal, they disagree about
the appropriate disposition. The County and the GLRA argue
that (1) United Haulers mandates a per se finding that the flow
control ordinances do not violate the dormant Commerce
Clause, and (2) the ordinances pass the Pike balancing test
because they are indistinguishable from the ordinances
considered in United Haulers.20 Lebanon Farms argues that


       20
          Appellants argue that while four Justices applied Pike
in Part II.D of United Haulers, six Justices agreed with Part II.C
that waste flow control ordinances benefitting public disposal
sites do not discriminate against interstate commerce for the
purposes of the dormant Commerce Clause. They thus contend
that those six Justices align in favor of the use of a “low-
standard form of Pike balancing which will always result in
upholding the flow control ordinances” or that the GLRA is not
subject to dormant Commerce Clause litigation at all. (See
Appellants’ Br. 37, 37 n.9, 39.) This argument is flawed. As
discussed above, the four-Justice plurality in Part II.D represents
the holding of the Court and dictates the application of the Pike
balancing test to flow control ordinances that benefit a public
facility like the GLRA-owned waste disposal site. The majority
in Part II.C determined that such ordinances do not constitute
facial discrimination, but did not cut short the necessity to apply
the Pike balancing test to such ordinances to ensure that the
incidental effects on interstate commerce do not outweigh the
legitimate local concerns. To hold otherwise would render the

                                23
applying the Pike balancing test instead of strict scrutiny yields
the same result as the District Court’s strict scrutiny review—the




broader concurrences of Justices Scalia and Thomas, which did
not garner the support of the narrower four-Justice plurality, the
effective holding of the Court for Part II.D, contravening well-
established interpretive guidance. See, e.g., Marks, 430 U.S. at
193 (holding that “[w]hen a fragmented Court decides a case
and no single rationale explaining the result enjoys the assent of
five Justices, the holding of the Court may be viewed as that
position taken by those Members who concurred in the
judgments on the narrowest grounds” (internal quotation marks
omitted)). Nor does Part II.C or the concurrences of Justices
Scalia and Thomas dictate the application of a “low-standard”
Pike test; such a test simply does not exist.
       Appellants also ask us to end our analysis with the
conclusion that this case is on “all fours, factually and legally,”
with United Haulers and issue a final ruling on that basis.
(Appellants’ Br. at 27, 37, 38.) We will not do so because, as
both parties acknowledged at oral argument, we do not have
sufficient findings of fact and conclusions of law by the District
Court to determine whether this case is squarely on par with
United Haulers.

                                24
ordinances still violate the dormant Commerce Clause.21 Thus,
both parties ask us to apply the Pike balancing test.

        Considering the strong language of the Supreme Court’s
holding in United Haulers, which found “it unnecessary to
decide whether the ordinances impose any incidental burden on
interstate commerce because any arguable burden does not
exceed the public benefits of the ordinances,” 127 S. Ct. at
1797, we perhaps could conduct the balancing test on the record
as it exists and even conclude that any incidental burden on
interstate commerce does or does not exceed the public benefits
of the presently considered ordinances. We will not do so,
however. We find the Second Circuit’s opinion in United
Haulers Ass’n v. Oneida-Herkimer Solid Waste Management,
261 F.3d 245 (2d Cir. 2001), to be particularly instructive. The
Second Circuit correctly predicted the Supreme Court’s eventual
holding that “[f]low control regulations like the
Oneida-Herkimer ordinances, which negatively impact all


       21
         Similar to the waste haulers in United Haulers, appellee
invites us to “rigorously scrutinize economic legislation passed
under the auspices of the police power,” 127 S. Ct. at 1798.
(See Appellee’s Br. 32-44 (arguing that the regulations were not
“necessary” to achieve the County’s goals).) “There was a time
when th[e courts] presumed to make such binding judgments for
society, under the guise of interpreting the Due Process Clause.
. . . We should not seek to reclaim that ground for judicial
supremacy under the banner of the dormant Commerce Clause.”
United Haulers, 127 S. Ct. at 1798 (citing Lochner v. New York,
198 U.S. 45 (1905)).

                               25
private businesses alike, regardless of whether in-state or
out-of-state, in favor of a publicly owned facility, are not
discriminatory under the dormant Commerce Clause.” Id. at
263. It then “admit[ted] a temptation to undertake the Pike
balancing test in the first instance, . . . [a] temptation[, which]
. . . arises from the well-settled principle that waste disposal is
a traditional local government function.” Id. at 263-64. The
court nonetheless decided to “resist the temptation to rule as a
matter of law prior to adequate discovery and further argument
by the parties, which will undoubtedly assist the District Court
in this fact-intensive determination.” Id. at 263-64. It
concluded:

       We . . . hold . . . that although it does not, in and
       of itself, give a municipality free reign to place
       burdens on the free flow of commerce between
       the states, the fact that a municipality is acting
       within its traditional purview must factor into the
       District Court’s determination of whether the
       local interests are substantially outweighed by the
       burdens on interstate commerce. With that
       understanding, we reverse and remand for a
       determination of whether the Counties’ flow
       control laws pass constitutional muster under the
       Pike balancing test.

Id. at 264. Only after the district court conducted the Pike
balancing test and the Second Circuit affirmed did the Supreme
Court’s plurality in Part II.D affirm the application of the test.
See United Haulers, 127 S. Ct. at 1797-98.


                                26
       We will follow the approach of the Second Circuit. We
will remand to the District Court to conduct the Pike balancing
test and make findings of fact and conclusions of law for the
record. In its present form, the record is incomplete regarding
the burden on interstate commerce and, more importantly, the
putative local benefits. Because the District Court did not have
the benefit of the Supreme Court’s decision in United Haulers
and because we do not have the benefit of the District Court’s
findings of fact and conclusions of law under the now relevant
standard, we will remand with instructions to apply the Pike
balancing test in accordance with Part II.D of United Haulers.
After development of a proper factual record, this court will be
in a better position to review the District Court’s factual and
legal conclusions, if asked.

                               IV.

        Under the majority’s holding in Part II.C of United
Haulers, we will vacate the District Court’s judgment in favor
of appellee on Count I of the Complaint, the declaration that the
flow control ordinances are unconstitutional, and the grant of a
permanent injunction against their enforcement. We will
remand to the District Court with instructions to apply the Pike
balancing test in light of the plurality’s opinion in Part II.D of
United Haulers. The District Court should make the findings of
fact and conclusions of law necessary to consider Count I under
the Pike standard and, if necessary, any other remaining issues
in the action.




                               27
