Waste Management Holdings v. Gilmore, 00-1185

• Decision Date: 07 December 2000
• Docket Number: No. 00-1185,00-1185
• Citation: 252 F.3d 316
• Parties: (4th Cir. 2001) WASTE MANAGEMENT HOLDINGS, INCORPORATED; HALE INTERMODAL MARINE COMPANY; WEANACK LAND LIMITED PARTNERS; CHARLES CITY COUNTY; BRUNSWICK WASTE MANAGEMENT FACILITY, Plaintiffs-Appellees, v. JAMES S. GILMORE, III, in his official capacity as Governor of the Commonwealth of Virginia; JOHN PAUL WOODLEY, JR., in his official capacity as Secretary of Natural Resources; DENNIS TREACY, JR., in his official capacity as Director of the Virginia Department of Environmental Quality, Defendants-Appellants. GLEN BESA; CAMPAIGN VIRGINIA; JOHN H. HAGER, Honorable; EMILY COURIC, Senator; MARGARET WHIPPLE, Senator; BRUCE JAMERSON; MARK A. MINER; LILA YOUNG, Movants. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 316

252 F.3d 316 (4th Cir. 2001)

WASTE MANAGEMENT HOLDINGS, INCORPORATED; HALE INTERMODAL MARINE COMPANY; WEANACK LAND LIMITED PARTNERS; CHARLES CITY COUNTY; BRUNSWICK WASTE MANAGEMENT FACILITY, Plaintiffs-Appellees, v. JAMES S. GILMORE, III, in his official capacity as Governor of the Commonwealth of Virginia; JOHN PAUL WOODLEY, JR., in his official capacity as Secretary of Natural Resources; DENNIS TREACY, JR., in his official capacity as Director of the Virginia Department of Environmental Quality, Defendants-Appellants.

GLEN BESA; CAMPAIGN VIRGINIA; JOHN H. HAGER, Honorable; EMILY COURIC, Senator; MARGARET WHIPPLE, Senator; BRUCE JAMERSON; MARK A. MINER; LILA YOUNG, Movants.

No. 00-1185

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: December 7, 2000

Decided: June 4, 2001

Amended June 11, 2001

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (CA-99-425, CA-99-443) [Copyrighted Material Omitted]

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[Copyrighted Material Omitted] COUNSEL ARGUED: Stewart Todd Leeth, Assistant Attorney General, Richmond, Virginia, for Appellants. Evan Mark Tager, MAYER, BROWN & PLATT, Washington, D.C.; Timothy George Hayes, HUNTON & WILLIAMS, Richmond, Virginia, for Appellees. ON BRIEF: Mark L. Earley, Attorney General of Virginia, William H. Hurd, Solicitor General, Roger L. Chaffe, Senior Assistant Attorney General, Ellen F. Brown, Assistant Attorney General, William E. Thro, Assistant Attorney General, Richmond, Virginia, for Appellants. Kenneth S. Geller, Miriam R. Nemetz, MAYER, BROWN & PLATT, Washington, D.C.; D. Alan Rudlin, Shawn A. Copeland, HUNTON & WILLIAMS, Richmond, Virginia; Jason S. Thomas, HUNTON & WILLIAMS, Raleigh, North Carolina; B. Randolph Boyd, RANDOLPH BOYD, CHERRY & VAUGHAN, Richmond, Virginia, for Appellees.

Before WIDENER and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed in part, vacated in part and remanded by published opinion. Senior Judge Hamilton wrote the opinion. Judge Widener wrote a concurring opinion (specifying that he concurs in all parts of the court's opinion except Part IV.A, but concurs in the result that Part IV.A obtains). Judge King wrote an opinion concurring in part and dissenting in part.

OPINION

HAMILTON, Senior Circuit Judge:

In March and April 1999, the Commonwealth of Virginia's (Virginia) General Assembly, its legislative body, enacted and the Governor of Virginia signed into law five statutory provisions, which, collectively, cap the amount of municipal solid waste (MSW) that may be accepted by landfills located in Virginia and restrict the use of barges and trucks to transport such waste in Virginia. See Va. Code Ann. SS 10.1-1408.1(Q); 10.1-1408.3; 10.1-1454.1(A); 10.1-1454.2; 10.1-1454.3 (Michie Supp. 2000). The first statutory provision (the Cap Provision) caps the amount of waste that any landfill located in Virginia may accept.¹ Va. Code Ann. S 10.1-1408.3. The second statutory provision (the Stacking Provision) requires Virginia's Waste Management Board (the Board) to promulgate regulations governing the transport of MSW by ship, barge, or other vessel, as well as the loading and unloading of such waste. Va. Code Ann.S 10.1-1454.1(A). This statutory provision requires that such regulations, which have yet to be issued, prohibit stacking containerized waste on a barge more than two containers high. id. The third statutory provision (the Three Rivers' Ban), which pertains to barges, prohibits "the commercial transport of hazardous or nonhazardous solid waste . . . by ship, barge or other vessel upon the navigable waters of the Rappahanock, James and York Rivers, to the fullest extent consistent with limitations posed by the Constitution of the United States." Va. Code Ann. S 10.1-1454.2. The fourth statutory provision (the Trucking Certification Provision) prohibits landfill operators from accepting MSW from a vehicle with four or more axles "unless the transporter of the waste provides certification, in a form prescribed by the Board, that the waste is free of substances not authorized for acceptance at the facility." Va. Code Ann. S 10.1-1408.1(Q). Finally, the fifth statutory provision (the Four or More Axle Provision) requires the Board to develop regulations governing the "commercial transport" of MSW by "any tractor truck semitrailer combination with four or more axles." Va. Code Ann. S 10.1-1454.3(A), (D). Among other things, the Four or More Axle Provision provides that the new regulations require, as a condition of carrying MSW on Virginia roads, the owners of such trucks to make financial assurances that trucks having less than four axles or carrying other cargo need not make. Id. S 10.1-1454.3(A)(2).

Following the enactment of these statutory provisions, several Virginia landfill operators and transporters of MSW and one Virginia county (collectively the Plaintiffs)² commenced this 42 U.S.C. S 1983 action in the United States District Court for the Eastern District of Virginia against the following individuals, in their official capacities: (1) Virginia's Governor, James Gilmore; (2) Virginia's Secretary of Natural Resources, John Paul Woodley; and (3) Virginia's Director of the Department of Environmental Control, Dennis Treacy. ³ The Plaintiffs' action challenges the five Virginia statutory provisions on the basis that they are violative of the dormant Commerce, Contract, and Equal Protection Clauses of the United States Constitution.⁴ The action seeks declaratory and injunctive relief.

In a published decision dated February 2, 2000, the district court held that the five Virginia statutory provisions at issue were violative of the Constitution's dormant Commerce Clause, and that the Three Rivers' Ban and the Stacking Provision were violative of the Constitution's Supremacy Clause. Waste Management Holdings, Inc. v. Gilmore (Waste Management Holdings III), 87 F. Supp.2d 536, 545 (E.D. Va. 2000). Before this court, on several fronts, the Defendants challenge the propriety of this decision of the district court.⁵ For the reasons stated below, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

I.

MSW "generally includes solid waste generated by households, commercial activities institutions, and non-process waste from industries." (J.A. 249). The Virginia Department of Environmental Quality (DEQ) reported that as of November 1998, there were seventy active landfills in Virginia accepting MSW. Although the parties disagree over how many of those landfills accept MSW from other states, the record is clear that seven "regional" landfills account for ninety-seven percent of the out-of-state waste deposited in Virginia. Approximately sixty-one "local" landfills accept no out-of-state waste at all. DEQ also reported that for the calendar year ending December 31, 1998, New York, Maryland, North Carolina, and Washington, D.C. exported the largest quantities of MSW into Virginia compared to other states or jurisdictions.

The regional landfills, which are privately operated and have substantially greater disposal capacity than their local counterparts, have been sited and constructed over the past decade in order to comply with strict state and federal regulations. Pursuant to a "host agreement" with the county in which it is located, each regional landfill pays the host county a fee based upon the volume of waste (excluding the host's waste) deposited at that location. These agreements also require the regional landfills to perform certain services for their host communities, such as providing free waste disposal and recycling services and/or funding the closing of any local landfills which do not meet state and federal regulations. The construction of these regional landfills has required tens of millions of dollars in private investment, and the landfills face high operation and maintenance costs in addition to the sizeable host fees.

To meet their revenue needs and remain economically viable, each regional landfill relies heavily on the disposal of MSW generated outside Virginia. In fact, MSW generated outside Virginia comprises seventy-five percent of the MSW accepted at the five regional landfills operated by Waste Management⁶ and almost one-hundred percent of the MSW accepted at Brunswick's regional landfill.

Under its host agreements, Waste Management is permitted to dispose of over 2,000 tons of MSW per day at all but one of its regional landfills. Prior to enactment of the statutory provisions at issue, Waste Management expected to exceed that level in 1999. Waste Management further expected that three of its five regional landfills would accept substantially more waste in 1999 than they had in 1998. The Charles City County Landfill, for instance, accepted approximately 2,849 tons of MSW per day in 1999, compared to less than 2,000 tons per day in 1998. Likewise, Brunswick accepted approximately 2,400 tons per day in 1998, and accepted more than 2,800 tons per day in 1999. Before the enactment of the statutory provisions at issue, Brunswick had expected to reach 5,000 tons per day by the end of the year 2000. By contrast, not one of the sixty-one landfills located in Virginia that accept only Virginia-generated MSW has ever accepted more than 2,000 tons per day, and only one or two of those might ever be expected to reach that level in the future.

For several decades, New York City has disposed of its residential MSW at the Fresh Kills Landfill in Staten Island. In 1997, New York Governor George Pataki and New York City Mayor Rudolph Giuliani announced that the Fresh Kills Landfill would cease accepting waste in December 2001. The New York City Department of Sanitation, therefore, began to negotiate interim disposal contracts in order to phase out its dependency on the Fresh Kills...