The Honorable Richard G. Kopf, United States District Judge for the District 1 of Nebraska, sitting by designation.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2987

___________ National Solid Waste Management * Association, * * Appellant, * * App eal from the United States Distric t v. * Court for the District of Minnesota. * Charles W. Williams, in his official * capacity as Commissioner of the * Minnesota Pollution Control Agency; * Edward Garvey, in his official capacity * as Director of the Minnesota Office of * Environmental Assistance, * * Appellees. * *

___________ Submitted: March 13, 1998 Filed: June 12, 1998

___________ Before BEAM and HEANEY, Circuit Judges and KOPF, District Judge. 1

___________ BEAM, Circuit Judge.The Honorable David S. Doty, United States District Judge for the District of 2 Minnesota. These county plans must: (1) eval uate the waste generation habits of a county's 3 population; (2) project the amount of waste that will be generated in the county over the next decade; (3) describe programs to assure that the county will meet statutorilyes tablished recycling goals; and (4) analyze and propose environmentally preferre d means of safely managing the county's projected waste stream. Minn Stat . §§ 115A.46, 115A.551, subd.6, 473.803, and 473.811. -2- The National Solid Waste Management Association (the Association) appeals the district court's grant of summary judgment ag ainst it in its action asserting that two 2 Minnesota state statutes violate the Commerce Clause of the United State s Constitution. Because we find that the Association lacks standing to challenge on e statute, and find that the other statute passes constitutional muster, we affirm.

I. BACKGROUND The dispos ition of garbage has become a popular subject of Commerce Clause
an alysis in recent years. See, e.g. , Ben Oehrleins and Sons and Daughter, Inc. v

. Hennepin County , 115 F.3d 1372, 1376 n.2 (8th Cir.), cert. denied , 118 S. Ct. 62 9 (1997). This appeal is the lates t round in a series of litigation spawned by the State of Minnesota's attempts to contr ol the collection, processing, and disposal of waste. See id. at 1376-77.
Minnesota 's legislature enacted the Waste Management Act in an attempt t o manage solid waste disposal in that state. Among other things, the Act require s counties to implement comprehensive waste management plans. See Minn. Stat. §§ 3 115A.46 and 473.8 03. Subdivision 5(b) of section 115A.46 (hereinafter "subdivision 5") then r equires public entities to manage their solid waste in accordance with th e relevant countyplan. For example, if the county plan requires that garbage be hauledThe court also granted summary judgment sua sponte on the A ssociation's claim 4 under 42 U.S.C . § 1983, reasoning that the civil rights claim alleged no constitutional violation. That ruling has not been appealed. -3- to a specific facility, all public entities within the county must have their wast e delivered to that facility.
If a pub lic entity wishes to act contrary to the county plan, section 115A.47 1 applies. That section first requires a determination of whether the county's designated method is favored over the entity's proposed method according to a statutory lis t ranking waste management practices. See Minn. Stat. § 115A.02(b). If the county's
me thod is preferred, the public entity must (1) determine the potential liability to th e public entity and its taxpayers for managing the waste as the entity proposes; (2 ) develop a plan f

or managing that potential liability; and (3) submit that information to the state. See Minn. Stat. § 115A.471.
The Association is a non-profit trade association, whose members includ e Minnesota businesses which have waste coll ection and disposal contracts with various Minnesota public entities. Th e Association filed suit, naming Charles Williams, in his official capacity as Commissioner of the Minnesota Pollution Control Agency, an d Edward Ga rvey in his official capacity as Director of the Minnesota Office o f Environmental

Assistance (the state). The Association alleged that subdivision 5 and
sec tion 115A.471 both contravene the Commerce Clause of the United State s Constitution.
The dist rict court granted summary judgment in favor of the state. It held that: (1) subdivision 5 does not violate the Com merce Clause; and (2) the Association lacks standing to challenge section 115A.471. The Association appeals. 4-4-

II. DISCUSSION
A. Standing
"Stan ding is the constitutional requirement, imposed by the 'cases o r controversies' provision of Article III, that a plaintiff must allege a judicially cognizable and redressable injury in order to pur sue a lawsuit." Ben Oehrleins , 115 F.3d at 1378. In order to have standing, the Association must have suffered an injury in fact, mus t establ ish a causal connection between that injury and the Minnesota statutes i t chal lenges, and must establish that this injury is redressable by this court. See Stee l Co. v. Citizens for a Better Env't , 118 S. Ct. 1003, 1016-17 (1998). Although th e Association has met these requirements regarding subdivision 5, we find that it has not met them with regard to section 115A.471.
Su bdivision 5 and section 115A.471 both refer to "public entities," but eac h defines that term differently. Subdivision 5 applies to:
the s tate, an office, agency, or institution of the state, the metropolita n council, a metropolitan agency, the metropolitan mosqui to control district, the legislature, the co urts, a county, a statutory or home rule charter city, a town, a school district, anoth er special taxing district, or any contractor acting pursuant to a contract with a public entity

. Min n. Stat. § 16B.122, subd. 1(f) (emphasis added). As "contractors," th e Associa tion's members are, therefore, constrained to act in accordance with th e applicable county plan when they service the waste produced by their public clients. The statute thus constrains their actions and has consequently caused an injury in fact to the Associ ation's members which can be redressed by this court. Therefore, as the state concedes, the Association has standing to challenge subdivision 5. See Carson-5-

v. Pi erce , 719 F.2d 931, 933 (8th Cir. 1983) (noting that association has standing a s representative of its members).
However, section 115A.471 contains a different definition: "p ublic entity" means the state; an office, agency, or institution of th e state; the metropolitan council; a metropolitan agency; the metropolitan mosquito control distri ct; the legislature; the courts; a county; a statutory or home rule charter city; a town; a school district; another special taxing district; or any other general or special purpose unit of government in the state. Minn. Stat. § 115A.471( b). Here, there is no mention of contractors acting on behalf of the state. Under the terms of the statute, the Association's members are not public ent ities and the Association does not contend that it is arguing on behalf of a publi c enti ty. Therefore, section 115A.471 imposes no obligations on the Association' s members and cannot cause any injury in fact. In an attempt to establish its claim of injury in fac t, the Association submitted an affidavit from one of its members. The affiant makes the g eneral assertion that the cost to public entities of complying with 115A.471 "dwarf[s] th e size of [our] public entity's
was te disposal contracts." However, even if this assertion were proved, it would not bolster the Association's position. In order to establish an injury in fact, th e Association must show "an invasion of a legally protected interes t which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical." Lujan
v. Defenders of Wildlife , 504 U.S. 555, 560 (1992) (internal quotation marks an d citations omitted). The Association has not linked the fact that co mpliance with section 115A.471 is expensive for public entiti es with any "concrete and particularized" harm to its membe rs. Id. Although the affidavit reports that all of the business's "pre

exi sting contracts with public entities . . . have since been redrafted" to comply with section 115A.471, there is no allegation that renegotiating these contracts damaged a-6-

"legally protected

interest." Id. We cannot discern any injury in fact visited upon the Asso ciation by section 115A.471. We therefore hold that the Association lack s standing to challenge that statute.
B. Commerce Clause
The Commerce Clause provides that "Congress shall have Power . . . T o regulate Commerce . . . among the several States." U.S. Const. art. I, § 8, cl. 3. The Com merce Clause has a "negative" or "dormant" aspect which "has long bee n understood to . . . den[y] t he States the power unjustifiably to discriminate against or burden th e interstate flow of articles of commerce." Oregon Waste Sys., Inc. v

. Department of Envtl. Quality , 511 U.S. 93, 98 (1994). Under the dormant Commerce Clause, statutes that require all waste generated within a geographic area t o be disposed of at fav ored facilities, so-called "flow control ordinances," have been declare d impermissible burdens on interstate commerce. See, e.g. , C & A Carbone, Inc. v

. Town o f Clarkstown , 511 U.S. 383 (1994); Ben Oehrleins , 115 F.3d at 1384. Th e Association calls subdivision 5 a "public entities waste flow control law" and asserts that, as flow control, it is invalid. To ascertain whether a state activity violates the dormant Commerce Clause, we begin by determining whether the state is "regulating" the market or merel y "participating" in it. See Reeves, Inc. v. Stake , 447 U.S. 429, 436-39 (1980). If the state activity constitutes only market participation, the n the Commerce Clause does not apply and our inquiry ends. S ee id. To ascertain whether a state is acting as a market par ticipant, we ask "whether the state is actually participating in a narrowly define d market as a proprietor rather than simp ly regulating the actions of other private market participants." Chance Management, Inc. v. South Dakota , 97 F.3d 1107, 111 1 (8th Cir. 199 6), cert. denied , 117 S. Ct. 1083 (1997). The state argues that subdivision 5 merely establi shes parameters for the state's purchase of waste disposal services. The Association responds that subdivision 5, in constraining the behavior of local-7-

gove rnment

units, regulates the behavior of market participants other than the state. We have not previously addressed the question of whether a local entity is equivalent to the state for purposes of market participant analysis. Other circuits have split on the issue.
The S eventh Circuit has held that when a state imposes requirements on loca l govern ment

without any state financial support or supervision, the state is not a participant

in the project, but a regulator not within the market participant exception. W.C.M. Window Co. v. Bernardi , 730 F.2d 486, 495 (7th Cir.1984). By contrast, the Thi rd Circuit found "no compelling analytical difference between a local government unit and central state agencies." Trojan Tech., Inc. v. Pennsylvania , 916 F.2d 903, 911 (3d Cir. 1990 ). "Both exist only through affirmative acts of the state. A municipality derives its authority from the state." Id. Two other circuits have adopted thi s reasoning

. See Smith Setzer & Sons, Inc. v. South Carolina Procurement Revie w Panel , 2 0 F.3d 1311, 1319-20 (4th Cir. 1994); Big Country Foods, Inc. v. Board o f Educ. , 952 F.2d 1173, 1179 (9th Cir. 1992).
We are persuaded by the reasoning of the Third Circuit. In this case, the state is p erforming as a market participant in directing the purchasing behavior of loca l governmental units. Under Minnesota state law, the legislature has unlimited authority
over local governmental units. See Erickson v. Gram , 210 N.W. 616, 616 (Minn

. 1926). All of the public entities covered by subdivision 5 are creations of the stat e which derive their power solely from the state. We are hard pressed to fathom how an entity created by the state, controlled by the state, and subject to the absolute powe r of the st ate, should be considered an independent entity when it undertakes to bu y waste services on the open market. Public entities should not be considere d independent from the state when they contract for the removal of their waste.
When a state contracts for garbage service, it does not run afoul of th e Commerce Clause by dictating by contract where the contractor delivers the waste.The Ass ociation posits in a footnote to its brief that applying the marke t 5 participant doctrine to subdivision 5 o pens the door to allow counties to resurrect flow contr ol over private generators by simply taking over garbage collection as a publi c functi on. Indeed, there is evidence in the record that the Tri-County Solid Wast e Management Commission is contemplating just such a step. We are aware that at least on e circuit court has held that this would be constitutionally permissible. See Sa l Tinnerel lo & Sons, Inc. v. Town of Stonington , No. 97-7919, 1998 WL 152981 (2 d Cir. Apr. 3, 1998). The Supreme Court has recently warned courts to "put aside the n atural urge to proceed directly to the merits of [an] important dispute and to settle it for the sa ke of convenience and efficiency." Raines v. Byrd , 117 S. Ct. 2312, 231 8 (1997 ). Accordingly, we expressly decline any comment on the propriety of a governmental entity assuming public control of all waste disposal within its borders in order to resurrect a previously unconstitutional flow control ordinance. -8- See SSC Corp. v. Town of Smithtown , 66 F.3d 502, 510 (2d Cir. 1995) ("to the extent that a sta te is acting as a market participant, it may pick and choose its busines s partners, its terms of doing business, and its b usiness goals—just as if it were a private party"), cert. denied , 516 U.S. 1112 (1996). Subdivision 5 applies only to the waste generated by public entities and does not reach beyond those parties who, like th e Assoc iation's members, "are actually and freely dealing with the state in its busines s enterprise." Chance Management , 97 F.3d at 1112.

5
Because thestate's actions here are performed as part of its role as a purchaser of waste disposal services, it is a mere market participant and the Commerce Clause does not apply. The state is, therefore, entitled to summary judgm ent in its favor on the Association's claims.
III. CONCLUSION For the foregoing reasons, the decision of the district court is affirmed.-9-

A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.