United States Court of Appeals

For the Eighth Circuit 

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No. 21-2614

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Paul’s Industrial Garage, Inc., a Wisconsin corporation; Flom Disposal, Inc., a 

Minnesota corporation

 Plaintiffs - Appellants

Countryside Disposal, LLC, a Minnesota corporation

 Plaintiff

v.

Goodhue County, a Minnesota county; Goodhue County Board of Commissioners, 

in their official capacities; City of Red Wing, a Minnesota municipality

 Defendants - Appellees

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Minnesota Pollution Control Agency

 Amicus on Behalf of Appellee(s)

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Appeal from United States District Court 

for the District of Minnesota

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Submitted: March 15, 2022

Filed: May 27, 2022

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Before GRASZ, STRAS, and KOBES, Circuit Judges.

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KOBES, Circuit Judge.

Proverbially, “one man’s trash is another man’s treasure.” For Paul’s 

Industrial Garage (PIG), a Wisconsin-based trash hauler, that idiom applies literally. 

PIG made around $200,000 per year collecting trash in Goodhue County, Minnesota. 

That ended when the County passed an ordinance requiring all garbage to be 

deposited at a state-owned plant in Red Wing, Minnesota (the City Plant). The 

garbage is then processed into refuse-derived fuel and sold to Northern States Power 

Company (Xcel) to be burned for electricity. 

 PIG and other garbage haulers and processors sued the County and Red Wing, 

arguing that the Ordinance violated the Commerce Clause by benefitting an in-state 

company (Xcel) at the expense of out-of-state haulers and processors. The district 

court1 granted summary judgment to the defendants. Because PIG’s claim doesn’t 

implicate the Commerce Clause, we affirm. 

I. 

 

 Before passing the disputed Ordinance, the County used private haulers and 

waste processing facilities, including PIG, to dispose of its garbage. PIG profited in 

two ways from this arrangement: (1) by charging customers to remove their waste, 

and (2) by charging other trash haulers a “tipping fee” to use PIG’s landfill in Hager 

City, Wisconsin. “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 Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 336 

n.1 (2007). Between the tipping and collection fees, PIG made roughly $200,000 

per year from the County, accounting for about 30% of its revenue. 

1

The Honorable David S. Doty, United States District Judge for the District 

of Minnesota. 
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In 2017 the County enacted the Ordinance, which requires haulers collecting 

garbage in Goodhue County to deposit it at the government-owned City Plant. The 

City Plant would then convert that garbage into refuse-derived fuel and sell it to 

Xcel.2

 PIG and other garbage haulers and processors sued, arguing that the 

Ordinance violates the dormant Commerce Clause in two ways. First, they argued 

that requiring all garbage to go to the City Plant to be converted into refuse-derived 

fuel unfairly discriminates against out-of-state competitors. They also claimed that

even if the County is free to require all garbage to go to a state-owned plant, the 

County violated the dormant Commerce Clause by exclusively selling a byproduct

of that garbage to a private, in-state company. 

The district court granted summary judgment to the defendants. It reasoned 

that because PIG doesn’t have the ability to turn refuse-derived fuel into electricity, 

it isn’t similarly situated to Xcel and therefore can’t bring a claim under the dormant 

Commerce Clause. The court also noted that even if PIG had the ability to convert 

refuse-derived fuel into energy, it would still lose under the Supreme Court’s 

precedent in United Haulers. 550 U.S. at 334 (“Disposing of trash has been a 

traditional government activity for years, and laws that favor the government in such 

areas—but treat every private business, whether in-state or out-of-state, exactly the 

same—do not discriminate against interstate commerce for purposes of the 

Commerce Clause.”). PIG appealed. 

II. 

We review the grant of summary judgment de novo, drawing all reasonable 

inferences in favor of PIG. Richardson v. Omaha Sch. Dist., 957 F.3d 869, 876 (8th 

Cir. 2020). Summary judgment is proper when “there is no genuine dispute as to 

2

“Sell” might be a misnomer because the County pays Xcel more to burn the 

fuel than Xcel pays to receive it. The County pays Xcel $21 per ton of refuse-derived 

fuel that it accepts and combusts, and Xcel pays the County $2 per ton of refusederived fuel delivered. So, in essence, the County pays Xcel a $19 per ton “tipping 

fee” to dispose of its waste. 
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any material fact and the movant is entitled to judgment as a matter of law.” Id.

(quoting Fed. R. Civ. P. 56(a)). 

The Commerce Clause of the Constitution grants Congress the power to 

“regulate Commerce . . . among the several States.” U.S. Const. art. I, § 8, cl. 3. 

“The dormant Commerce Clause is the negative implication of the Commerce 

Clause: states may not enact laws that discriminate against or unduly burden 

interstate commerce.” S.D. Farm Bureau, Inc. v. Hazeltine, 340 F.3d 583, 592 (8th 

Cir. 2003). “This negative aspect of the Commerce Clause prevents the States from 

adopting protectionist measures and thus preserves a national market for goods and 

services.” Sarasota Wine Mkt., LLC v. Schmitt, 987 F.3d 1171, 1180 (8th Cir. 2021) 

(quoting Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S.Ct. 2449, 2459 

(2019)). “Under the dormant Commerce Clause, a law is discriminatory if it benefits 

in-state economic interests while also inordinately burdening out-of-state economic 

interests.” LSP Transmission Holdings, LLC v. Sieben, 954 F.3d 1018, 1026 (8th 

Cir. 2020). 

But the Commerce Clause was “never intended to cut the States off from 

legislating on all subjects relating to the health, life, and safety of their citizens, 

though the legislation might indirectly affect the commerce of the country.” Gen. 

Motors Corp. v. Tracy, 519 U.S. 278, 306 (1997) (citation omitted). Accordingly, 

the dormant Commerce Clause doesn’t prohibit differential treatment of companies 

that perform different services, because “any notion of discrimination assumes a 

comparison of substantially similar entities.” Id. at 298. “Thus, in the absence of 

actual or prospective competition between the supposedly favored and disfavored 

entities in a single market there can be no local preference . . . .” Id. at 300. State 

and local governments are therefore free to treat vacation homes differently from

primary residences, Rosenblatt v. City of Santa Monica, 940 F.3d 439, 453 (9th Cir. 

2019), humane societies differently from for-profit breeders, Park Pet Shop, Inc. v. 

City of Chicago, 872 F.3d 495, 497–98 (7th Cir. 2017), and brick and mortar liquor 

stores differently from their online counterparts, Cherry Hill Vineyard, LLC v. 

Baldacci, 505 F.3d 28, 36–37 (1st Cir. 2007), to name a few examples. 
-5- 

That is the fatal flaw in PIG’s dormant Commerce Clause claim. PIG and the 

other appellants do not allege that they are able to convert garbage into refusederived fuel, nor do they allege that they have the ability to burn refuse-derived fuel 

to create electricity. The defendants therefore are not competitors with either the 

City Plant or Xcel, and their claims must fail. 

III. 

The judgment of the district court is affirmed.3

 

STRAS, Circuit Judge, concurring. 

History confirms what common sense already suggests: the Commerce Clause 

allows Congress “to regulate Commerce . . . among the several States,” but it does 

not prohibit states from doing so too. See U.S. Const. Art. I, § 8, cl. 3. A grant of 

power to one body does not withdraw it from another, License Cases, 46 U.S. (5 

How.) 504, 583 (1847), absent an express “negative clause[],” Federalist No. 32, at 

201 (Hamilton) (Clinton Rossiter ed., 1961); see also Camps Newfound/Owatonna, 

Inc. v. Town of Harrison, Me., 520 U.S. 564, 610–617 (1997) (Thomas, J., 

dissenting) (rejecting the “exclusivity” and “preemption-by-silence” rationales for a 

“negative Commerce Clause”). Today, all the court does is follow precedent, so I

concur. 

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3

Because PIG isn’t a relevant comparator to Xcel or the City Plant, we do not

consider whether United Haulers or C & A Carbone applies to the County’s conduct. 

Compare United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Management 

Auth., 550 U.S. 330 (2007) (upholding law that required haulers to bring garbage to 

a state-created public benefit corporation), with C & A Carbone, Inc. v. Town of 

Clarkstown, 511 U.S. 383, 394–95 (1994) (holding unconstitutional a city ordinance 

requiring all garbage to be processed at a private waste transfer and treatment plant).