961 F.Supp. 323 (D.Me. 1997), Civ. 96-0246, Condon v. Andino, Inc.

Docket Nº:Civ. 96-0246
Citation:961 F.Supp. 323
Party Name:Condon v. Andino, Inc.
Case Date:March 25, 1997
Court:United States District Courts, 1st Circuit, District of Maine

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961 F.Supp. 323 (D.Me. 1997)

David CONDON, d/b/a White Knight Solid Waste Disposal, Plaintiff,


ANDINO, INC., Andrew Marino, Town of Houton, and Allan Bean, Defendants.

Civil No. 96-0246-B.

United States District Court, D. Maine.

March 25, 1997

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Robert M. Morris, Carton, Davis & Morris, P.A., Brunswick, ME, for Plaintiff.

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Phillip D. Buckley, Rudman & Winchell, Bangor, ME, for Defendants Marino & AndiNo.

Daniel R. Nelson, Severson, Hand & Nelson, Houlton, ME, Michael E. Saucier, Thompson & Bowie, Portland, ME, for Defendants Bean & Houlton.


BRODY, District Judge.

Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiff, David Condon, requests that the Court enjoin Defendants, Andino, Inc. (hereinafter "Andino"), the Town of Houlton (hereinafter "Houlton" or' "the Town"), Andrew Marino, and Allan Bean from enforcing the Town's Solid Waste Management Ordinance (hereinafter the "Ordinance") and the solid waste contract between the Town and AndiNo. For the reasons set forth below, the Court finds that Houlton's Ordinance is substantively similar to the flow control ordinance held unconstitutional by the Supreme Court in C & A Carbone Inc. v. Town of Clarkstown, N.Y., 511 U.S. 383, 393-401, 114 S.Ct. 1677, 1684-1687, 128 L.Ed.2d 399 (1994). For this reason, and because Plaintiff satisfies the other First Circuit requirements for an injunction, a Preliminary Injunction is hereby issued.

I. Background

Houlton does not provide waste collection services at the Town's expense, therefore, residents must either pay to have their waste transported to the Town's designated waste transfer station, or they may take it to the transfer station themselves. Plaintiff, owner of White Knight Solid Waste Disposal, holds a license, issued by Houlton, granting him the right to collect and haul commercial and residential waste within the Town. 1 In 1995, Houlton enacted a new Ordinance that provides that all residential solid waste generated within the Town must be taken to a waste processing transfer station established by the private contractor chosen by Houlton to process the solid waste produced within the Town X Commercial waste hauling companies violating the Ordinance are subject to fine for each offense and may be forced to pay any related costs and attorneys' fees. See Houlton, Maine, Solid Waste Management Regulations, art. V: § 10-503.

Houlton granted Defendant, Andino, the exclusive franchise to process the Town's solid waste, hence, Andino is the owner of the transfer station that is the only authorized disposal site for residential waste produced in Houlton. Andino charges a tipping fee for all waste disposed of at its transfer station. This tipping fee is determined based on the amount of waste presented at the transfer station for disposal.

In an attempt to assure compliance with the Town's requirement that all residential waste be processed at the Andino transfer station, Andino requires that all commercial haulers present a list of their residential clients prior to use of the transfer station. If a hauler such as Plaintiff does not turn over its customer list to Andino, the hauler will not be allowed to deposit waste collected from its clients at the Town's authorized transfer station. Plaintiff refuses to disclose his customer list to either Andino or the Town, arid, as part of this suit, asks the Court to enjoin Defendants from enforcing the Ordinance.

II. Preliminary Injunction Standard

For the Court to grant Plaintiff's Motion for Preliminary Injunction, Plaintiff must establish the following four elements: first, that he has a likelihood of success on the merits; second, that he will suffer irreparable harm if the injunction is not granted; third, that his injury outweighs any harm that granting injunctive relief would inflict on the Defendants; and fourth, that the public interest will be served by granting the preliminary injunction. See, e.g., AFL-CIO Laundry and Dry Cleaning Int'l Union v. AFL-CIO Laundry, 70 F.3d 717, 718 (1st Cir. 1995);

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Gately v. Commonwealth of Massachusetts, 2 F.3d 1221, 1224 (1st Cir. 1993), cert. denied, 511 U.S. 1082, 114 S.Ct. 1832, 128 L.Ed.2d 461 (1994).

A. Likelihood of Success On the Merits

Plaintiff argues that Houlton's Ordinance is in violation of the Commerce Clause of the Constitution. U.S. Const. art. I, § 8, cl. 3. More specifically, Plaintiff claims that Houlton's Ordinance is unconstitutional under the dormant Commerce Clause.

The Commerce Clause grants Congress the authority "[t]o regulate Commerce. among the several States...." Id. This broad grant of power confers upon Congress the authority to pass laws that affect commerce between the states even when the effect of the laws on interstate commerce is quite attenuated. E.g., Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). In addition to this grant of authority, the Commerce Clause is a limitation on the power of the states to regulate commerce. In other words, in the absence of Congressional action, the dormant Commerce Clause acts to limit state power to regulate. The Supreme Court recently opined that:

[t]hough phrased as a grant of regulatory power to Congress, the [Commerce] Clause has long been understood to have a "negative" aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce.

Oregon Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 98, 114 S.Ct. 1345, 1349, 128 L.Ed.2d 13 (1994) (citing Wyoming v. Oklahoma, 502 U.S. 437, 454, 112 S.Ct. 789, 800, 117 L.Ed.2d 1 (1992); Welton v. Missouri, 91 U.S. 275, 23 L.Ed. 347 (1876)); see also Hughes v. Oklahoma, 441 U.S. 322, 326, 99 S.Ct. 1727, 1731, 60 L.Ed.2d 250 (1979). There are certain recognized principles that dictate whether states can constitutionally regulate an activity in situations where Congress has not acted. 2

In a decision authored by Justice Cardozo, the Supreme Court held that the Commerce Clause prohibited state regulation:

when the avowed purpose of [the state law] as well as its necessary tendency, is to suppress or mitigate the consequences of competition between the states.

Baldwin v. GAF Seelig, Inc., 294 U.S. 511, 522, 55 S.Ct. 497, 500, 79 L.Ed. 1032 (1935) Under the Court's dormant Commerce Clause analysis, "one state in its dealings with another may not place itself in a position of economic isolation." Id. at 527, 55 S.Ct. at 502. Even in situations where a state has significant social welfare goals that mandate regulation, it cannot erect barriers to the free flow of commerce, and competition, between the states. The Court summarized this area of Constitutional analysis, stating that:

[t]he Constitution was framed under the domain of a political philosophy less parochial in range. It was framed upon the theory that the people of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.

Id. at 523, 55 S.Ct. at 500. In an often quoted passage on this issue, Justice Jackson wrote that:

[o]ur system, fostered by the Commerce Clause, is 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 customer may look to the free competition from every producing area in the Nation to protect him from exploitation by any.

H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 539, 69 S.Ct. 657, 665, 93 L.Ed. 865 (1949).

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Whether Plaintiff has a likelihood of success on the merits in this preliminary injunction proceeding is based upon three separate determinations. The Court must decide, first, whether processing and disposing of waste is an activity that has an impact on interstate commerce; second whether the Town is participating in or regulating the market; and, third, whether the Ordinance discriminates against interstate commerce. Carbone provides the appropriate analytical framework for these determinations

1. Impact On Interstate Commerce

Defendants argue that the activity under review here, the processing and disposal of waste, has no impact on interstate commerce, hence, the Commerce Clause does not apply, and, therefore, the restrictions of the dormant Commerce...

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