IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50153

CIBOLO WASTE, INCORPORATED; C-6 DISPOSAL SYSTEMS,

INCORPORATED; AMERICAN DISPOSAL COMPANY; ANACONDA

DISPOSAL, L.L.C.; APACHE DISPOSAL, INCORPORATED; ABSOLUTE

WASTE; GRANDE DISPOSAL COMPANY;FELIXMALDONADO TRUCKING,

INCORPORATED; PRO STAR ROLL OFF DUMPSTERS; OTIS SPENCER,

doing business as River City Disposal; RIVER CITYWASTE, INCORPORATED;

SOUTHTEXAS REFUSE, INCORPORATED; TEXAS WASTE SYSTEMS,

INCORPORATED; BRENDA MALDONADO TRUCKING; CLARK

CONTRACTING SERVICES, INCORPORATED; DRC MATERIALS; TIGER

SANITATION, INCORPORATED, 

Plaintiffs-Appellants

v.

CITY OF SAN ANTONIO, 

Defendant-Appellee

Appeal from the United States District Court 

for the Western District of Texas

Before STEWART, Chief Judge, DAVIS, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge: 

Appellants Cibolo Waste et al. are waste haulers that operate throughout

the City of San Antonio and its surrounding counties. In 2006, the City of San

Antonio passed an ordinance imposing a permit fee for the collection or disposal

of waste within city limits. In response, Appellants filed suit against the City,

United States Court of Appeals

Fifth Circuit

F I L E D

May 15, 2013

Lyle W. Cayce

Clerk

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claiming that the permit fee violates the dormant Commerce Clause by imposing

an excessive burden on interstate waste haulers. The district court dismissed

their claims and they appealed. As Appellants have failed to show that their

alleged injuries fall within the zone of interests protected by the dormant

Commerce Clause, we decline to address Appellants’ arguments because they

lack prudential standing, and we AFFIRM the district court’s dismissal of their

claims.

 

FACTS AND PROCEEDINGS

Appellee City of San Antonio (the “City”), by and through its Solid Waste

Management Department, oversees the collection and disposal of solid waste

within the City’s limits. Both the City and private waste hauler companies

(collectively “haulers”) offer collection and disposal services to residents and

commercial businesses. There are three landfills within city limits, one that is

a privatized City facility and two that are privately owned. Appellants Cibolo

Waste et al. (“Appellants”) are thirteen haulers that collect and dispose of waste

within the City and its surrounding communities. Appellants are all Texas

companies with their principal places of business in Bexar County, Texas. The

record does not indicate that Appellants currently do business or seek to do

business outside Bexar County.1

For over two decades, the City has regulated the waste management

industry through the issuance of permits for collecting or disposing of solid

waste. In 2006, the City adopted an ordinance that imposes a permit fee of

$2,250 for each vehicle weighing over 7,000 pounds that is used to collect or

1

In their complaint and at oral argument, Appellants acknowledged that they only do

business in the state of Texas. Additionally, at oral argument, Appellants conceded that they

could offer no evidence that they have expanded or seek to expand their business across state

lines. 

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dispose of solid waste within the City. The permit fee is neither tied to the

volume of solid waste collected or disposed of by each hauler, nor based on the

number of times that a hauler uses a City landfill. Haulers that collect or

dispose of solid waste within the City are thus required to pay an annual flat fee,

regardless of whether they use a City landfill one time or one thousand times

that year. Under the ordinance, haulers that fail to acquire a permit before

collecting or disposing of waste are subject to financial penalties. Additionally,

the ordinance applies only to haulers that collect or dispose of waste within the

City’s corporate limits, not those that collect or dispose of waste in other

contiguous counties. 

The permit fee is designed to cover the costs directly associated with the

monitoring of permit holders as well as the costs associated with the City’s

regulation of the waste management industry. Such costs include, but are not

limited to, environmental cleanup, code enforcement, infrastructure

maintenance, police and fire services, staffing, and overhead. Moreover, in order

to enforce the ordinance, the City must undertake a number of tasks, such as

providing and evaluating insurance paperwork that haulers are required to

submit with each permit application and assigning city officials to check haulers’

permits at dump sites and to conduct vehicle inspections. 

According to Rose Ryan, Assistant Director of the City’s Solid Waste

Department, at the time of its passage, the ordinance was expected to generate

between $900,000 and $1.2 million in permit fee payments per year. While Ryan

was not able to identify the precise amount of money that the City needs to

enforce the ordinance, she noted that the overall cost of regulating the waste

management industry is approximately $3 million per year. The $3 million

estimate includes the costs of regulation and of providing other waste

management services to the City’s residents. 

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Appellants filed suit in Texas state court, claiming that the permit fee

violates the dormant Commerce Clause and the Equal Protection Clause and

constitutes an illegal occupation tax.2 The City removed the case to federal

court. Appellants then filed an application for a preliminary injunction, which

the district court denied. The parties filed cross-motions for summary judgment,

and the district court granted summary judgment in favor of the City,

concluding that the ordinance does not interfere with interstate commerce. 

Appellants filed a Federal Rule of Civil Procedure 59(e) motion to alter or amend

the judgment, and, upon its denial by the district court, Appellants timely

appeal. 

STANDARD OF REVIEW

We review de novo a grant or denial of summary judgment, applying the

same standards as the district court. Holt v. State Farm Fire & Cas. Co., 627

F.3d 188, 191 (5th Cir. 2010). Viewing all evidence in the light most favorable

to the nonmoving party, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986), we will affirm a grant of summary judgment only if the evidence shows

that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law, FED. R. CIV. P. 56(a). 

ANALYSIS

Every party that comes before a federal court must establish that it has

standing to pursue its claims. The doctrine of standing asks “whether the

2

In their response to the City’s motion for summary judgment, Appellants abandoned

their equal protection claim. Although they raise this claim again in their appellate brief, it

is waived. See Williams v. Time Warner Operation, Inc., 98 F.3d 179, 183 (5th Cir. 1996) (“We

refuse to review an argument that a party has failed to raise in response to a summary

judgment motion.”). 

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litigant is entitled to have the court decide the merits of the dispute or of

particular issues.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11

(2004). The Supreme Court has described standing as “contain[ing] two

strands: Article III standing, which enforces the Constitution’s

case-or-controversy requirement; and prudential standing, which embodies

judicially self-imposed limits on the exercise of federal jurisdiction.” Id.

(citations and internal quotation marks omitted). Because Article III standing

is a threshold issue, we must address it before considering questions of

prudential standing. See Ford v. NYLCare Health Plans of Gulf Coast, Inc., 301

F.3d 329, 332 (5th Cir. 2002). 

Article III standing requires a plaintiff to show: “(1) an injury in fact (2)

that is fairly traceable to the actions of the defendant and (3) that likely will be

redressed by a favorable decision.” Procter & Gamble Co. v. Amway Corp., 242

F.3d 539, 560 (5th Cir. 2001) (citations omitted). An injury in fact is “an

invasion of a legally protected interest 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) (citations and internal quotation marks

omitted). The City contends that Appellants lack Article III standing because

they do not allege an injury that would be remedied by declaring the ordinance

unconstitutional. 

Under our precedent, however,it appears that Appellants have made their

showing of injury in fact because the permit fee increases their cost of doing

business. In National Solid Waste Management Ass’n v. Pine Belt Regional Solid

Waste Management Authority, the waste hauler plaintiffs were injured by an

ordinance imposing a “tipping” fee for using the city’s landfill that ultimately

resulted in higher operating costs to haulers. 389 F.3d 491, 498 (5th Cir. 2004)

(“[P]laintiffs’ cost to dispose of waste [under the ordinance], including the tipping

fee and the transportation cost, would be higher than their current cost.”). 

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Similarly, Appellants have incurred higher operating costs as a result of the

City’s ordinance, which imposes an increased cost per vehicle for obtaining a

permit to collect and dispose of waste in San Antonio.3 This injury to

Appellants—in the form of higher operating costs— is directly traceable to the

City’s ordinance, see id., and would be remedied, even if only temporarily, by a

holding that the ordinance is unconstitutional. The requirements for Article III

standing are thereby satisfied.

Even if a plaintiff establishes Article III standing, we may consider

whether prudential standing principles nonetheless counsel against hearing the

plaintiff’s claims.4 See Knutson, 699 F.2d at 236. The doctrine of prudential

standing embodies “judicially self-imposed limits on the exercise of federal

jurisdiction.” Elk Grove, 542 U.S. at 11. Moreover, as the Supreme Court has

observed, prudential standing:

[E]ncompasses “the general prohibition on a litigant’s raising

another person’s legal rights, the rule barring adjudication of

generalized grievances more appropriately addressed in the

representative branches, and the requirement that a

3 While the City has attempted to regulate the waste hauler industry through a

permitting process since the early 1990s, the City acknowledged that the permit requirement

was not enforced until the passage of this ordinance in 2006. Because Appellants were not de

facto required to obtain permits prior to 2006, the passage of the ordinance and its

corresponding increased enforcement procedures have raised the price of doing business for

haulers in the City.

4 Although the City raises the issue of prudential standing for the first time on appeal,

we retain discretion to consider its arguments because prudential standing, while not

jurisdictional, nonetheless affects justiciability. See Lewis v. Knutson, 699 F.2d 230, 236 (5th

Cir. 1983) (“[T]he constitutional limitation requiring an injury to satisfy the case or

controversy requisite goes to the court’s jurisdictional power to hear the case, while the

prudential limitation goes to the court’s administrative discretion to hear the case.”). Thus,

we are not required to address a party’s prudential standing arguments when they were not

raised below, see Ensley v. Cody Res., Inc., 171 F.3d 315, 320 (5th Cir. 1999) (refusing to

consider prudential standing where the defendant failed to object in the trial court); Bd. of

Miss. Levee Comm’rs v. EPA, 674 F.3d 409, 417–18 (5th Cir. 2012) (same), but have previously

exercised our discretion to do so, see, e.g., Pine Belt, 389 F.3d at 498–501.

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plaintiff’s complaint fall within the zone of interests protected

by the law invoked.”

Id. at 12 (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)). 

At issue here is whether Appellants’ claims fall within the “zone of

interests” protected by the dormant Commerce Clause. See Wyoming v.

Oklahoma, 502 U.S. 437, 469 (1992) (noting that the zone-of-interests test

“governs claims . . . under the negative Commerce Clause”); see also Pine Belt,

389 F.3d at 499 (“The key inquiry for prudential standing in this case is whether

the injury of which plaintiffs complain is ‘arguably within the zone of interests

to be protected’ by the dormant Commerce Clause, the ‘constitutional guarantee

in question’ here.”) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,

397 U.S. 150, 153 (1970)). Since the dormant Commerce Clause “is driven by

concern about economic protectionism—that is, regulatory measures designed

to benefit in-state economic interests by burdening out-of-state competitors,” 

Dep’t of Revenue v. Davis, 553 U.S. 328, 337–38 (2008) (citation and internal

quotation marks omitted), an evaluation of the ordinance’s allegedly

protectionist features is critical to our consideration of Appellants’ dormant

Commerce Clause argument. 

As such, we look to see if a claim under the dormant Commerce Clause

falls within the zone of interests by asking: (1) whether Appellants “have

standing to challenge the [ordinance] as facially discriminatory against out-ofstate economic interests,” or (2) whether Appellants “can merely challenge the

ordinance[] as being excessively burdensome to interstate commerce.” Pine Belt,

389 F.3d at 499. In other words, this test requires us to “ask whether the

ordinance[] ‘reflect[s] a discriminatory purpose or merely a discriminatory

effect.’” Id. at 497 (quoting Dickerson v. Bailey, 336 F.3d 388, 396 (5th Cir.

2003)). The test is disjunctive, allowing Appellants to show either that the

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ordinance discriminates against out-of-state interests on its face or that the 

ordinance as applied unduly burdens their out-of-state interests. 

The ordinance at issue does not facially discriminate against out-of-state

economic interests. A facially discriminatory ordinance is one that by its terms

authorizes “differential treatment of in-state and out-of-state economic interests

that benefits the former and burdens the latter.” Id. (quoting Or. Waste Sys.,

Inc. v. Dep’t of Envtl. Quality, 511 U.S. 93, 99 (1994)); see, e.g., Piazza’s Seafood

World, LLC v. Odom, 448 F.3d 744, 750 (5th Cir. 2006) (“Th[e] discrimination

appears on the face of the statute: the Catfish Statute treats domestic catfish

differently from foreign catfish to the benefit of the former and the detriment of

the latter.”). Here, however, the ordinance is applicable to any commercial or

industrial hauler, regardless of where the hauler originated or planned to end

its trip.5It is a type of blanket prohibition that favors neither interstate nor

intrastate commerce. See, e.g., Empacadora de Carnes de Fresnillo, S.A. de C.V.

v. Curry, 476 F.3d 326, 336 (5th Cir. 2007); Int’l Truck & Engine Corp. v. Bray,

372 F.3d 717, 726 (5th Cir. 2004). Accordingly, Appellants lack standing to

challenge the ordinance on the basis that it is facially discriminatory against

out-of-state interests. See Pine Belt, 389 F.3d at 500. 

Appellants also cannot satisfy the second prong of the zone-of-interests

test since they have not shown that the ordinance imposes an excessive burden

on interstate commerce. See id. (“An allegation that the plaintiff is involved in

interstate commerce and that the plaintiff’s interstate commerce is burdened by

5 Under the ordinance:

Any commercial and/or industrial hauler collecting, transporting

or disposing of solid wastes, regardless of characterization,

within the corporate limits of the City of San Antonio shall be

required to permit each vehicle used for transporting or hauling

solid waste materials upon public streets, public alleys or

highways within the corporate limits of the City of San Antonio.

SAN ANTONIO CITY CODE, Ch. 14, § 14-22(e)(16).

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the ordinance in question is sufficient to satisfy the zone of interests test with

respect to ordinances that assertedly impose an excessive burden on interstate

commerce.”). The critical inquiry is whether Appellants are engaged in

interstate commerce and, if so, whether their interstate commerce is burdened

by the ordinance. See id. at 500–01. 

By their own admission, Appellants are not engaged in interstate

commerce. Their business is purely intrastate, and they have no contracts that

are negotiated on a national or interstate basis. Cf. id. at 501 (noting that the

plaintiff had contracts that were negotiated on a national or interstate basis).

Additionally, Appellants’ participation in intrastate commerce throughoutTexas

does not suffice to place them within the zone of interests protected by the

dormant Commerce Clause. See id. at 500 n.16 (observing that the purpose of

the dormant Commerce Clause is to “protect against local economic

protectionism at the expense of out-of-state interests . . . not to protect any

economic interests”). The dormant Commerce clause protects interstate, not

inter-city commerce. That Appellants’ alleged injury would be remedied by a

repeal of the law is similarly inapposite in this zone-of-interests analysis. See

id. (“The fact that an injury would be remedied if the ordinance was struck down

does not mean that the grievance falls within the zone of interests to be

protected by the dormant Commerce Clause, particularly when there was no

allegation of any interstate burden.”). As we have emphasized previously, the

only parties that have standing to bring a dormant Commerce Clause challenge

are those who both engage in interstate commerce and can show that the

ordinance at issue has adversely affected their commerce. Appellants fail

entirely to satisfy these prerequsites, and as a result, they lack standing to bring

their claims in federal court.6 

6 Further, to the extent that Appellants raise an independent challenge under the

Texas Constitution that the ordinance imposes an illegal occupation tax, we affirm the district

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CONCLUSION

As the City’s ordinance does not facially discriminate against out-of-state

commerce or place excessive burdens on Appellants’ interstate commerce,

Appellants have failed to demonstrate that their alleged injury falls within the

zone of interests protected by the dormant Commerce Clause. We AFFIRM the

district court’s dismissal of this case and hold that Appellants lack standing to

pursue their claims. 

court’s summary judgment in favor of the City on this claim as well.

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