Government Suppliers Consolidating Serv. v. Bayh

• Court: U.S. District Court — Southern District of Indiana
• Writing for the Court: TINDER
• Citation: Government Suppliers Consolidating Serv. v. Bayh, 734 F.Supp. 853 (S.D. Ind. 1990)
• Decision Date: 03 April 1990
• Docket Number: No. IP 90-303-C.,IP 90-303-C.
• Parties: GOVERNMENT SUPPLIERS CONSOLIDATING SERVICES, INC., and Jack Castenova, Inc., Plaintiffs, v. The Honorable Evan BAYH, Governor of the State of Indiana, and the State of Indiana, Defendants.

734 F. Supp. 853

GOVERNMENT SUPPLIERS CONSOLIDATING SERVICES, INC., and Jack Castenova, Inc., Plaintiffs, v. The Honorable Evan BAYH, Governor of the State of Indiana, and the State of Indiana, Defendants.

No. IP 90-303-C.

United States District Court, S.D. Indiana, Indianapolis Division.

April 3, 1990.

COPYRIGHT MATERIAL OMITTED

Ronald J. Waicukauski, White & Raub, Indianapolis, Ind., Bruce L. Thall, Philadelphia, Pa., for plaintiffs.

Harry John Watson, III, Michael T. Schaefer, Office of Attorney General, Indianapolis, Ind., for defendants.

MEMORANDUM ENTRY REGARDING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

TINDER, District Judge.

The problem of where to dispose of solid waste promises to be one of the most complex, expensive and emotional issues to confront this Nation as it prepares to enter the twenty-first century. With recycling technology lagging far behind this country's ability to produce trash, we must continually search for new places to put all the things that we have discarded. This case is about that search. Everyone would agree that trash must be disposed of, but very few would volunteer to have it dumped in the environment near their homes. The simple truth is that no one wants to live near a landfill with the accompanying odors, fleets of garbage trucks, and pollution. However, the "not in my back yard" (or "NIMBY") attitude, as it has been described, while understandable, is not conducive to finding legal and efficient solutions to this dilemma. See Swin Resource Sys. Inc. v. Lycoming County, Pennsylvania, 883 F.2d 245, 253 n. 3 (3d Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1127, 107 L.Ed.2d 1033 (1990). In this Union of states, the citizens of each state enjoy constitutional benefits as well as responsibilities. If we address national problems of this type without due regard for our neighbors with whom we share these problems, we fail to fulfill our constitutional obligations and deny others the rights and privileges which we hold so dear. This conundrum deserves a thorough and deliberate analysis. Such an inquiry requires due regard for constitutional requirements and precludes treatment of the problem with perfunctory but popular placebos.

Plaintiffs are two out-of-state companies that are engaged in the business of hauling solid waste by truck to permanent disposal sites. These companies have sued Evan Bayh, the Governor of Indiana, and the state of Indiana, seeking to stop the Governor and the state from enforcing a law recently passed by the Indiana General Assembly and signed into law by the Governor. See Engrossed House Bill No. 1240 (a copy of the Enrolled Act was unavailable at the time this opinion was released).

This law places certain requirements on haulers who dump solid waste in landfills located in the state. The law requires the drivers of the trucks to identify, under penalty of perjury, the county in Indiana or, if outside Indiana, the state in which the "largest part" of the solid waste was "generated." This requirement I refer to as the "hauler certification" requirement throughout this opinion.

The law also prohibits in-state dumping of out-of-state solid waste unless the driver importing the waste presents to the landfill operator a "document" from a health officer from the foreign state certifying that the solid waste does not contain any hazardous waste in violation of federal law or any infectious waste in violation of Indiana law. This requirement I refer to as the "state health officer certification" requirement.

In addition, the law imposes a "tipping" fee on every ton of trash dumped into a landfill located within the state. This fee is paid to the landfill operator, and is passed on to the state to be used in various ways related to waste disposal. The amount of the tipping fee varies tremendously. The lowest amount of the fee is $0.50 a ton for trash generated in the state of Indiana. Trash generated outside the state is assessed a much different, and presumably higher, fee. That is, the fee for dumping trash which is generated in states outside Indiana is set so that the total cost of dumping the out-of-state trash in Indiana equals the cost of dumping the trash at the landfill nearest the point of generation of the trash. This is statutorily achieved by setting the Indiana dumping fee so that it is equal to the difference between the cost of dumping in the landfill closest to the source of the trash and the cost charged by the Indiana landfill owner for dumping in the Indiana landfill. Thus, the out-of-state trash hauler has no economic incentive to import trash into this state. In fact, the extra cost of transporting the waste from the landfill nearest the generating site to Indiana serves as a strong disincentive on importing trash into the state. While the first two challenged provisions went into effect with the Governor's signature, the tipping fee provision does not go into effect until January 1, 1991. This requirement I refer to as the "tipping fee" requirement.

Plaintiffs have challenged the newly enacted law on three constitutional grounds — the commerce clause, the fourteenth amendment's equal protection clause, and vagueness under the due process clause of the fifth amendment.¹

Although these claims will be fully tried later this month, the plaintiffs, fearing immediate and irrevocable harm from even the temporary enforcement of this law, have moved this court for a temporary restraining order, which this court has converted into a motion for a preliminary injunction. See infra at 861-62. A hearing on this motion was held on Monday, March 26, 1990 at which counsel for both the plaintiffs and the defendants presented arguments for and against the granting of an injunction. Because the case had been before me less than one full business day and a weekend, and because of the complexity and importance of the issues involved, I took the motion under advisement. After carefully considering the arguments presented by both parties, and researching the issues involved to the fullest extent possible in the short period of time which has elapsed in this case, I have reached a decision on the request to preliminarily enjoin the three aspects of the statutory scheme cited above. A full discussion of the reasoning behind this decision follows.

It should be noted at the outset that all determinations made herein, both factual and legal, are preliminary in nature and are subject to a complete reconsideration and perhaps revision or reversal after the trial on the merits is held in this matter. The tentative nature of this ruling accompanies all preliminary rulings in a case of this sort where the court is asked to evaluate a legal dispute on an emergency schedule absent a full presentation of evidence and a full briefing of the relevant legal issues. Thus, neither party should assume that any finding or conclusion contained herein has been conclusively made, or that its burden of proof or opposition on any of the points discussed here has been met with respect to the trial on the merits.²

I. Standing and Ripeness

A. Constitutional and Prudential Considerations of Standing

Although neither party points to the doctrine of standing as a potential stumbling block, a court is empowered, indeed required, to raise it sua sponte. United States v. Storer Broadcasting Co., 351 U.S. 192, 197, 76 S.Ct. 763, 767, 100 L.Ed. 1081 (1956). The doctrine of standing is grounded both on constitutional and prudential considerations, with the division between the two often a blurry one.

Standing under Article III of the United States Constitution involves a tripartite test; a plaintiff needs to show (1) that it has suffered a distinct and palpable injury, (2) caused by the challenged activity, (3) for which the court can provide a remedy. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982).

The prudential considerations of standing are satisfied if "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970).

Placing these requirements on plaintiffs seeking access to the federal judiciary "tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." Valley Forge Christian College, 454 U.S. at 472, 102 S.Ct. at 758.

My concern over standing grows out of the first prong of the three constitutional requirements for standing — a showing of a distinct and palpable injury to the plaintiffs. Plaintiffs point to two types of injuries in this case. First, drivers transporting solid waste into the state risk imprisonment on perjury charges for falsely certifying from which state the waste was generated. Second, complying with the new law will significantly drive up the cost of disposing of solid waste. What troubles me is the possibility that neither of these two injuries are being inflicted directly on the plaintiffs. Without this injury, there is a risk the plaintiffs may lack a "direct stake in the outcome" of the litigation, which is traditionally viewed as the best means for ensuring that the issues are fully litigated in an adversarial atmosphere. See, e.g., Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972).

As to the first type of injury, the plaintiffs in this case have not clearly shown that they actually employ the drivers who risk perjury convictions by transporting the trash into the state. Rather, the plaintiffs appear to be middlemen who simply contract with independent...