1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-20-1995

Harvey & Harvey v Chester

Precedential or Non-Precedential:

Docket 94-1924

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Recommended Citation

"Harvey & Harvey v Chester" (1995). 1995 Decisions. Paper 275.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 94-1924 

 

HARVEY & HARVEY, INC., 

 Appellant

v. 

COUNTY OF CHESTER; PENNSYLVANIA DEPARTMENT 

OF ENVIRONMENTAL RESOURCES; CHESTER COUNTY 

SOLID WASTE AUTHORITY; SOUTHEASTERN CHESTER 

COUNTY REFUSE AUTHORITY 

 

On Appeal from the United States District Court 

For the Eastern District of Pennsylvania 

(D.C. Civ. No. 94-cv-03615) 

 

 

No. 94-3622 

 

TRI-COUNTY INDUSTRIES, INC. 

v. 

COUNTY OF MERCER PENNSYLVANIA; 

MERCER COUNTY SOLID WASTE AUTHORITY; 

COMMONWEALTH OF PENNSYLVANIA, 

DEPARTMENT OF ENVIRONMENTAL RESOURCES 

 THE COUNTY OF MERCER, PENNSYLVANIA; 

 THE MERCER COUNTY SOLID WASTE AUTHORITY; 

 and COMMONWEALTH OF PENNSYLVANIA, 

 DEPARTMENT OF ENVIRONMENTAL RESOURCES, 

 Appellants

 

On Appeal from the United States District Court 

For the Western District of Pennsylvania 
2 

(D.C. Civ. No. 93-cv-00592) 

 

Argued: June 6, 1995 

Before: BECKER, NYGAARD, and ALITO, 

Circuit Judges.

(Filed October 20, l995) 

 JAMES McC. GEDDES, ESQUIRE (ARGUED) 

 PHILIP TRAINER, JR., ESQUIRE 

 STEVEN T. MARGOLIN, ESQUIRE 

 Ashby & Geddes 

 One Rodney Square 

 P. O. Box 1150 

 Wilmington, DE 19899 

 Counsel for Harvey & Harvey, Inc., 

 Appellant in No. 94-1924 

 JOHN S. HALSTED, ESQUIRE 

 THOMAS L. WHITEMAN, ESQUIRE 

 Office of County Solicitor 

 2 North High Street 

 Courthouse, Suite 7 

 West Chester, PA 19380 

 Counsel for County of Chester, 

 Appellee in No. 94-1924 

 DENNIS W. STRAIN, ESQUIRE (ARGUED) 

 MARK L. FREED, ESQUIRE 

 Commonwealth of Pennsylvania 

 Department of Environmental Resources 

 555 North Lane 

 Suite 6015, Lee Park 

 Conshohocken, PA 19482-2233 

 Counsel for Pennsylvania Department

 Environmental Resources, 

 Appellee in No. 94-1924 

 JAMES E. McERLANE, ESQUIRE (ARGUED) 

 Lamb, Windle & McErlane, P.C. 

 24 East Market Street 

 P. O. Box 565 

 West Chester, PA 19381-0565 

 Counsel for Chester County Solid 
3 

 Waste Authority, 

 Appellee in No. 94-1924 

 JOSEPH C. CRAWFORD, ESQUIRE 

 Wolf, Block, Schorr & Solis-Cohen 

 S.E. Corner 15th & Chestnut Streets 

 Packard Building, 12th Floor 

 Philadelphia, PA 19102 

 Counsel for Delaware County Solid

 Waste Authority, 

 Amicus-Appellee in No. 94-1924 

 THOMAS J. MAY, ESQUIRE (ARGUED) 

 THOMAS W. KING, III, ESQUIRE 

 Dillon McCandless & King 

 128 West Cunningham Street 

 Butler, PA 16001 

 Counsel Tri-County Industries, Inc., 

 Appellee in No. 94-3622 

 RONALD D. AMRHEIN, JR., ESQUIRE 

 William J. Madden, P.C. 

 165 Euclid Avenue 

 P. O. Box 981 

 Sharon, PA 16146 

 Counsel for Mercer County Solid Waste

 Authority and the County of Mercer, 

 Appellant in No. 94-3622 

 MICHAEL D. BUCHWACH, ESQUIRE 

 Pennsylvania Department of 

 Environmental Resources 

 Office of General Counsel 

 RR#2, Mosiertown Road 

 P. O. Box 614 

 Meadville, PA 16335-8311 

 DENNIS W. STRAIN, ESQUIRE (ARGUED) 

 KRISTEN M. CAMPFIELD, ESQUIRE 

 GAIL B. PHELPS, ESQUIRE 

 Pennsylvania Department of 

 Environmental Resources 

 Office of Chief Counsel 

 9th Floor, MSSOB 

 400 Market Street 

 Harrisburg, PA 17105-8464 
4 

 Counsel for Commonwealth of

 Pennsylvania, Department of

 Environmental Resources, 

 Appellant in No. 94-3622 

___________________________ 

OPINION OF THE COURT 

___________________________ 

BECKER, Circuit Judge. 

 These appeals, briefed separately but listed together 

for oral argument, both present Commerce Clause challenges to 

municipal "flow control" ordinances. These ordinances require 

waste haulers, like the plaintiffs in each case here, to bring 

solid waste picked up within the municipal boundaries to 

designated landfill sites located within a state. These 

designated sites, in turn, usually charge "tipping fees" 

considerably higher than other, non-designated sites located 

nearby in other states. In each case we must determine whether 

these ordinances, which threaten haulers taking waste to 

nondesignated sites with fines and suspension, impermissibly 

discriminate against interstate commerce. 

 In one case Harvey & Harvey ("Harvey"), an interstate 

collector, hauler and processor of municipal solid waste, brought 

suit against Chester County, the Chester County Solid Waste 

Authority ("the Authority")0 the Southeastern Chester County 

 

0The authority is a Pennsylvania municipal corporation 

established by the County Commissioners in 1984 for the purpose 

of operating the Lanchester Landfill. 
5 

Refuse Authority ("SECCRA")0 and the Pennsylvania Department of 

Environmental Resources (the "DER"). It seeks to have the 

County's flow control plan declared unconstitutional under the 

dormant Commerce Clause. The district court denied Harvey's 

motion for a preliminary injunction. Concluding that the plan 

does not discriminate against interstate commerce, it held that 

the Pike balancing test, see Pike v. Bruce Church, Inc., 397 U.S. 

137, 90 S. Ct. 844 (1970), which Harvey acknowledged that it 

could not meet, would apply. (Sept. 8, 1994 Order.) Because the 

district court did not consider whether the Chester County flow 

control scheme offered out-of-state landfill operators an equal 

opportunity to compete for the county's waste disposal business, 

we vacate and remand for further proceedings. 

 In the other case Tri-County Industries, Inc. ("TriCounty"), a hauler of residential and commercial solid waste 

throughout Mercer County and in other Western Pennsylvania and 

Ohio counties, brought suit against the County of Mercer and the 

Mercer County Solid Waste Authority ("MCSWA"). It sought both a 

declaratory judgment that the county's flow control plan violated 

the dormant Commerce Clause and a permanent injunction enjoining 

its enforcement. The district court, concluding that the plan 

improperly impeded interstate commerce, granted final judgment on 

stipulated facts in favor of Tri-County. We hold that the 

district court erred in concentrating on the operation of the 

ordinance and concomitantly in failing to consider whether out-

 

0SECCRA owns the SECCRA landfill. 
6 

of-state interests competed on a level playing field. Therefore, 

the order in Tri-County must also be vacated and remanded. 

I. FACTS AND PROCEDURAL HISTORY 

 A. THE SOLID WASTE CRISIS 

 During the 1970s and '80s, national environmental 

concerns fostered stricter state regulation of waste disposal. 

This regulation led to a large number of landfill closures 

throughout the United States, creating shortages in many places 

and driving up landfill pricing. See Eric S. Petersen & David N. 

Abramowitz, Municipal Solid Waste Flow in the Post-Carbone World, 

22 FORDHAM URB. L.J. 361 n.33 (1995); see also Harvey SA 382 

(Kerns); James C. Vago, Comment, The Uncertain Future of Flow 

Control Ordinances: The Last Trash to Clarkstown?, 22 N. KY. L.

REV. 93, 98 (1995). Pennsylvania was no exception. It too 

experienced inadequate and rapidly diminishing disposal capacity 

for municipal waste. See 53 P.S. §4000.102(a)(2) (legislative 

findings). 

 Waste disposal methods, ranked in descending order of 

environmental impact, include: source reduction and reuse, waste 

combustion, and landfilling. See Vago, 22 N. KY. L. REV. at 106. 

Environmentally advanced, innovative waste disposal facilities 

can cost "in the tens to hundreds of millions of dollars to 

construct." See Vago, 22 N. KY. L. REV. at 108. State and 

federal environmental mandates often require the use of these 

new, more expensive facilities. Petersen & Abramowitz, 22 FORDHAM 

URB. L.J. at *7 [n.66]. Securing long term access to disposal 

facilities necessary to protect the citizens' health and safety 
7 

"requires long-term commitments, debt and security." Id. [n.66]. 

Methods less protective of the environment generally have lower 

capital and operating costs, and thus can charge a lower tipping 

fee. 

 B. THE RESPONSE 

 Until the Tax Reform Act of 1986 repealed many of the 

tax incentives, most waste disposal facilities were privately 

owned and operated. ID. at *4 [n.36]. In response to the tax 

changes and increased costs caused by environmental regulation, 

increased public ownership became necessary, shifting the 

financing burden to the local governments. With this burden came 

risk. Even where the municipal government contracts with a 

private operator to construct or upgrade the disposal facility, 

the municipality often continues to bear the risk of an 

inadequate waste supply through municipal guarantees. 

Consequently, "it is the ability of local governments to control 

these haulers and where they transport the collected waste that 

often determines the feasibility of the solid waste processing 

disposal programs." See Petersen & Abramowitz, 22 FORDHAM URB.

L.J. at *2 [n.31]. 

 Flow control ordinances, enacted by a number of states 

attempting to deal with these waste disposal crises, create a 

system in which waste haulers are licensed by the municipality 

and are directed to take the waste collected to landfills that 

have been designated by the county. By conditioning the haulers' 

licenses on their compliance, local governments can assure a 

certain minimum revenue at the designated sites. Flow control 
8 

both guarantees that a certain volume will be deposited and 

enables the operators of the designated landfill to collect a 

"tipping fee"0 high enough to cover the cost of processing. 

Indeed, tipping fees are typically based on both the system's 

construction cost and the estimated amount of waste that will be 

deposited there annually. In some cases, the municipalities 

actually set the tipping fee contractually. 

 Given the municipalities' reliance on the higher rates 

in effect when the municipalities were constructing and financing 

these facilities, flow control ordinances have been crucial to 

the financial viability of these facilities in the wake of the 

precipitous decline of tipping fees.0 Indeed, flow control has 

"been a vital economic element in supporting dozens of major 

waste-to-energy and landfill-based waste disposal programs 

involving billions of dollars in capital investment." Petersen & 

Abramowitz, 22 FORDHAM URB. L.J. at *2 [n.25].0 

 

0The tipping fee is the price charged haulers to dump a ton of 

waste at a landfill. 

0Although the waste disposal crisis had evidenced an acute 

shortage of environmentally sound landfill capacity, the market 

eventually responded to the increased price; in fact, there were 

so many entrants into the waste disposal market, constructing so 

many new facilities, that tipping fees collapsed. Thus, while 

landfills could contract for tipping fees between $35.00 per ton 

(Mercer County) and $52.00 per ton (Chester County) approximately 

five years ago, current spot rate tipping fees are approximately 

$17.50 - $30.00 per ton. 

0Until C & A Carbone, Inc. v. Town of Clarkstown, 114 S.Ct. 1677 

(1994), discussed infra, these ordinances had withstood a variety 

of constitutional challenges, including due process, antitrust, 

and Commerce Clause challenges. Petersen & Abramowitz, 22 FORDHAM 

URB. L.J. at *8-9 [nn.67-110]. Indeed, through the late 1980s, 

federal courts entertaining Commerce Clause challenges to flow 

control found that even flow control schemes involving export 
9 

 C. PENNSYLVANIA'S MUNICIPAL WASTE ACT 

 In responding to its own solid waste crisis, the 

Pennsylvania legislature enacted the Municipal Waste Act (the 

"Act") to protect the public health, safety and welfare from the 

short- and long-term dangers of the transportation, processing, 

treatment, storage and disposal of municipal waste. See 53 P.S. 

§4000.102(b)(3). The Act establishes a system requiring each 

county to plan for the long-term processing and ultimate disposal 

of its waste. In authorizing each county to adopt flow control 

ordinances, the Act explicitly set forth the policy goal of such 

flow control legislation: 

Authorizing counties to control the flow of 

municipal waste is necessary, among other 

reasons, to guarantee the long-term economic 

viability of resource recovery facilities and 

municipal waste landfills, to ensure that 

such facilities and landfills can be 

financed, to moderate the cost of such 

facilities and landfills over the long term, 

to protect existing capacity and to assist in 

the development of markets for recyclable 

materials by guaranteeing a steady flow of 

such materials. §102(a)(10). 

 

 Under the Act, counties may designate for a ten-year 

period the facilities at which waste generated within the county 

will be processed or disposed. See 53 P.S. § 4000.303(e). Such 

facilities do not have to be located within the county, although 

one provision of the Act states that "[p]roper and adequate 

processing and disposal of municipal waste generated within a 

county requires the generating county to give first choice to new 

 

bans had only an incidental burden on commerce, and therefore did 

not discriminate against interstate commerce. ID. at *9 [n.100]. 
10 

processing and disposal sites located within that county." 53 

P.S. §4000.102(6). Each county must consider alternative 

facilities and programs, and "provide reasonable assurances that 

the county utilized a fair, open and competitive process for 

selecting such facilities or programs from among the alternatives 

which were suggested to the county." 53 P.S. §4000.502(f)(2). In 

addition, if a county proposes to own or operate a municipal 

waste processing or disposal facility, it must explain the basis 

for such a proposal, giving consideration to the comprehensive 

costs and benefits of private ownership and operation of such 

facilities. 53 P.S. §4000.502(m). 

 The facilities designated by a county, and the process 

by which they are chosen, must be set out in a municipal waste 

management plan. 53 P.S. §4000.502(f). During its preparation, 

the plan is reviewed by a county advisory committee made up of 

representatives from the county's municipalities, civic groups, 

and industry. The committee makes suggestions and proposes any 

changes it believes are appropriate. 53 P.S. §4000.503(a). At 

least thirty days before submitting any proposed plan revisions 

to the Department of Environmental Resources ("DER"), the county 

must submit a copy of the proposed revision to the County 

Advisory Committee. 53 P.S. § 4000.503(d). The county must also 

make the plan available for a ninety-day public review and 

comment period, and hold at least one public hearing on the 

proposed plan during this period. 53 P.S. §4000.503(c). 

 After adoption by the county, a plan must undergo a 

municipal ratification process requiring approval by fifty 
11 

percent of the municipalities in the county, representing at 

least fifty percent of the population. 53 P.S. §§4000.503(d); 

504(c). The plan must then be submitted to the DER for approval, 

after which any party objecting to the plan may appeal to the 

Pennsylvania Environmental Hearing Board. If a county chooses to 

require that municipal waste be processed or disposed of at 

designated facilities by means other than contract (e.g., by 

ordinance), the plan must explain the basis for such a proposal 

and include a copy of the proposed flow control ordinance or 

other legal instrument. 53 P.S. § 4000.502(1). 

 The plan, and the list of facilities designated by the 

county for processing and disposal, may be revised by the county 

at any time but must be revised at least three years prior to the 

time that the remaining capacity for a county is exhausted. 25 

Pa. Code § 272.251(b); 25 Pa. Code § 272.251(a)(1). 

 D. THE HARVEY CASE 

 1. The Chester County Plan 

 Harvey is a Delaware corporation operating in 

Pennsylvania, Maryland and Delaware as an interstate collector, 

hauler and processor, inter alia, of municipal solid waste. 

Harvey is a licensed hauler of municipal solid waste in Chester 

County, Pennsylvania. 

 On May 30, 1989, the Chester County Board of 

Commissioners appointed the Chester County Act 101 Municipal 

Waste Advisory Committee. The Committee evaluated six potential 

waste management methods in order to select the components that 
12 

would constitute the Chester County solid waste management 

system: waste reduction, recycling, waste-to-energy technology, 

a trash-for-ash exchange, transfer stations and landfilling. In 

addition, the Committee participated in four day-long site 

inspections of existing waste disposal and processing facilities 

located in Baltimore, Maryland and Chester County, Montgomery 

County, Philadelphia, and York, Pennsylvania. The Committee also 

attended a presentation on the Westinghouse resource recovery 

facility located in the City of Chester, Pennsylvania. 

 The Committee held 13 meetings between July 11, 1989, 

and March 20, 1990, to discuss the elements of the County's waste 

management plan. Although these meetings were open to the 

public, they were advertised only in the Daily Local News, a 

Westchester paper with a circulation of approximately 45,000. 

The Committee then prepared a draft plan, and on May 29 and May 

31, 1990, conducted public hearings to entertain public comment 

on the draft plan. The record does not reveal how these public 

meetings were advertised or how many people attended. The 

Committee approved revisions based on that public comment. Harvey 

did not participate in the process, either as an advocate of an 

alternative site or as a commenter. The record does not contain 

any explanation for Harvey's absence, but it appears that Harvey 

did not have significant business in the County prior to 1990. 

 The County Commissioners adopted the updated Plan on 

September 25, 1990, and the DER granted its final approval on 

April 11, 1991. The Plan contained key components of the 

committee's draft plan, including the decision to designate the 
13 

Southeastern Chester County Refuse Authority Sanitary Landfill 

(the "SECCRA Landfill") and the Chester County Solid Waste 

Authority Lanchester Sanitary Landfill ("Lanchester Landfill") as 

the primary disposal sites for the County. The County selected 

these two sites from among those considered because "the haulers 

of trash in the County had established a historical pattern of 

disposal at these landfills." County Br. at 11. In fact, the 

County had played a role in financing the Lanchester landfill. In 

1984, the County purchased it and turned its operation over to 

the Authority. The County financed the purchase with $42.55 

million in Authority revenue bonds which carry a County 

guarantee. After the purchase, the County guaranteed an 

additional $41.5 million in Authority debt, secured a $9.2 

million letter of credit, and agreed to provide the Authority 

with an additional $9.5 million for landfill projects. 

 In response to concerns voiced by Committee members 

that the "northern tier" of the County might be adversely 

affected by the system proposed by the Committee (i.e., 

designating only the SECCRA and Lanchester landfills), the 

Committee voted to recommend that the Pottstown Landfill, a 

privately owned facility located in adjacent Montgomery County, 

be included in the Plan as a disposal option.0 

 Initially, the 1990 Plan did not mandate the adoption 

of flow control. The DER informed Chester County during its 

 

0The Pottstown facility was approved to receive waste only from 

certain areas within the county, and the amount of waste it could 

receive was capped at the amount deposited by the county at the 

facility in 1989. 
14 

review process, however, that it would not approve the Plan 

unless the County flow controlled its waste. DER letters of 

3/12/91; 4/11/91; committee notes. Consequently, the County 

commissioners enacted a flow control ordinance on April 2, 1992. 

The ordinance divides the County into two service areas: the 

SECCRA Landfill service area and the Lanchester Landfill Service 

Area. Municipal waste generated in these service areas must be 

disposed of at the facility designated by the County to receive 

the waste. A certain amount of waste may also be taken to the 

Pottstown landfill. The terms of the ordinance permit amendment 

to designate other facilities and do not prohibit out-of-state 

facilities from applying.0 However, the indentures of the 

revenue bonds and administrative agreements between the County 

and the Authority stipulate that the County will oppose the 

construction, acquisition, operation or designation of any 

facility that might divert revenue from Lanchester. (Committee 

letters to DER seeking permission not to consider additional 

sites for designation). 

 2. Procedural History 

 

0The Ordinance defines a Designated facility as follows: 

the Lanchester Sanitary Landfill owned and operated by 

the Chester County Solid Waste Authority, located in 

Honeybrook Township, Chester County and Caernarvon and 

Salisbury Townships, Lancaster County; the Southeastern 

Chester County Refuse Authority Sanitary Landfill, 

located in London Grove Township, Chester County; the 

Pottstown Landfill owned and operated by SCA Services 

of Pennsylvania, Inc., located in West Pottsgrove 

Township, Montgomery County; or any other County 

designated Municipal Waste processing or disposal 

facility. 
15 

 Harvey filed its complaint in the district court on 

June 15, 1994, challenging Chester County's flow control plan 

under the Federal Constitution's Commerce Clause, Art. I, § 8, 

Cl. 3. Harvey alleged that the regulations isolate the County 

from the interstate solid waste market by prohibiting the export 

of locally generated waste to out-of-state disposal and by 

similarly prohibiting the import of waste processing and disposal 

services from out of state. On June 27, 1994, Harvey moved for a 

preliminary injunction to enjoin enforcement of the relevant 

regulations adopted pursuant to the ordinance. After a hearing, 

the district court denied the motion on the grounds that Harvey 

had made an insufficient showing of immediate and irreparable 

harm. A trial date was set for September 12, 1994. 

 Prior to trial, the parties filed cross motions to 

determine the standard of review and, thus, who would bear the 

burden of proof. The district court granted the defendants' 

motion to apply the Pike v. Bruce Church, Inc., 397 U.S. 137, 90 

S. Ct. 844 (1970) balancing test since it found that the Chester 

County Ordinance did not discriminate on its face or in purpose 

or effect against interstate commerce. September 8, 1994 Order. 

Harvey conceded that it could not prove its case under the Pike

standard and therefore stipulated to an order of final judgment 

Harvey appealed. 

 E. THE TRI-COUNTY CASE 

 1. The Mercer County Plan 

 Plaintiff/appellant, Tri-County Industries, Inc., is a 

Pennsylvania corporation doing business in Mercer County, 
16 

Pennsylvania. In late 1989, the Mercer County Commissioners 

formed the Mercer County Solid Waste Authority ("MCSWA") to 

implement the County's duties under the Act. Mercer County 

generates approximately 5,000 tons of municipal waste each month. 

 After retaining the services of an independent 

consultant, Mercer County decided that the best solution for this 

fairly small county would be to contract with a single disposal 

facility. The County prepared detailed bid specifications for 

the needed municipal waste capacity. The Request for Proposals 

("RFP") was advertised nationwide and was obtained by twentythree companies around the country. Although many of these 

companies were located in Pennsylvania, others were located in 

Ohio, New York, Maryland, New Jersey, Minnesota and Louisiana. 

Only four companies, including the appellee, Tri-County, 

submitted a bid in response to the RFP, and none of these was 

from outside Pennsylvania. The successful bidder was Waste 

Management of Pennsylvania, the owner of a landfill in Butler 

County. 

 By its terms the process outlined by Mercer County in 

its RFPs does not discriminate against in- or out-of-state 

interests. The RFP requirements apply equally to all disposal 

facilities, irrespective of their location. Id, see also RFP 

1.4(g). The plan was submitted to DER in the fall of 1990 and 

approved in March, 1991. After DER approved the Plan, MCSWA 

contracted with the successful bidder, and Mercer County adopted 

the now contested Ordinance, No. 6-1991. The ordinance requires 

each hauler in the county to obtain a license and to haul 
17 

municipal waste generated in the county to the landfill 

designated in the county plan "as it may be revised from time to 

time." Section 3, 6-1991. 

 Although the Plan required Tri-County to haul the waste 

to the Butler facility and pay the $35 per ton tipping fee, TriCounty in fact took some of its waste to two other facilities in 

Ohio which charged tipping fees of only $17.20 and $27.95 per 

ton. Of the approximately 600 to 900 tons of waste Tri-county 

hauled monthly, it took 500 tons per month to the non-designated, 

Ohio facilities. The MCSWA notified Tri-County by letter dated 

March 19, 1993, that it would hold a hearing on April 15, 1993, 

to determine whether Tri-county's waste hauling license should be 

revoked for its failure to deliver all of its waste to the 

designated facility. 

 2. Procedural History 

 In response to this notice of hearing, Tri-County filed 

this declaratory judgment action in the district court seeking a 

declaration that the ordinance violated the Commerce Clause, and 

a permanent injunction enjoining its enforcement. It also moved 

for a preliminary injunction, and the district court held 

hearings on that motion, which the court then denied. After some 

discovery, the parties filed a joint stipulation of fact and a 

joint motion to enter judgment on the basis of the evidence 

before the district court. 

 In October 1994, the district court entered judgment 

for Tri-County on the grounds that the ordinance, by requiring 

that all waste generated within the county be taken to the 
18 

designated landfill in Butler County, operated to impermissibly 

burden interstate commerce. This appeal followed. 

 Both of these appeals involve the district courts' 

choice of the applicable legal standard. Since this involves the 

selection, interpretation and application of legal precepts, our 

review is plenary. See Doe v. American Red Cross, 14 F.3d 196 

(3d Cir. 1993). 

II. THE LEGAL FRAMEWORK 

 A. THE GENERAL COMMERCE CLAUSE JURISPRUDENCE 

 The Commerce Clause provides that "[t]he Congress shall 

have Power . . . to regulate Commerce . . . among the several 

States." U.S. Const. Art. I, § 8, cl. 3. "Although the Clause 

speaks in terms of powers bestowed upon Congress, the Court has 

long recognized that it also limits the power of the States to 

erect barriers against interstate trade." Lewis v. B.T. 

Investment Managers, Inc., 447 U.S. 27, 35, 100 S. Ct. 2009, 2015 

(1980). That is, the Commerce Clause has a negative or dormant 

aspect which limits state authority to regulate areas where 

"Congress has not affirmatively acted to either authorize or 

forbid the challenged state activity." Atlantic Coast Demolition 

& Recycling, Inc. v. Board of Chosen Freeholders of Atlantic 

County, 48 F.3d 701, 710 (3d Cir. 1995) (quoting Norfolk Southern 

Corp. v. Oberly, 822 F.2d 388, 392 (3d Cir. 1987)). None of the 

parties has argued that Congress has either prohibited or 

authorized the flow control ordinances at issue here.0

 

0As with any dormant commerce clause issue, "[i]t is well 

established that Congress may authorize the States to engage in 
19 

Consequently, we must consider whether these ordinances violate 

the dormant Commerce Clause. 

 In considering Commerce Clause challenges, courts 

should "'determine whether action taken by state or local 

authorities unduly threatens the values the Commerce Clause was 

intended to serve.'" Norfolk Southern Corp. v. Oberly, 822 F.2d 

388, 399 (3d Cir. 1987) (quoting Wardair Canada, Inc. v. Florida 

Dept. of Revenue, 477 U.S. 1, 106 S.Ct. 2369, 2372-73 (1986)). 

"[T]he Commerce Clause is designed to eliminate protectionist 

restrictions on interstate trade which typically characterize 

international trade, such as embargoes, quotas, and tariffs." 

Oberly, 822 F.2d at 399; see also New Energy Co. v. Limbach, 486 

U.S. 269, 273 (1988) (explaining purpose of the clause as 

prohibiting "economic protectionism -- that is, regulatory 

 

regulation that the Commerce Clause would otherwise forbid." See

Maine v. Taylor, 477 U.S. 131, 138, 106 S. Ct. 2440, 2447 (1986). 

Congress can in effect overturn a Supreme Court decision simply 

by explicitly giving the states the authority to regulate. In 

her concurrence in Carbone, Justice O'Connor considered whether 

Congress' passage of the Resource Conservation and Recovery Act 

("RCRA"), 42 U.S.C. § 6941 et seq., constituted such an 

authorization. Although she conceded that the statute (in 

conjunction with its legislative history) could be read to 

empower states to adopt flow control ordinances, she maintained 

that, in order to authorize potentially discriminatory state 

regulation, Congress must speak explicitly and unmistakably. 

Carbone, 114 S. Ct. at 1691-92. Because RCRA did not constitute 

such an explicit pronouncement, she concluded that RCRA could not 

serve as the necessary enactment. In the wake of Carbone, 

Congress has considered legislation providing for such explicit 

authorization of flow control schemes. Although the Senate 

passed the bill known as the Interstate Transportation of 

Municipal Solid Waste Act of 1995, S.534, see 141 Cong. Rec. 

S.6728, which would have grandfathered many of the flow control 

ordinances enacted to finance existing facilities, the bill has 

not passed the House. Thus, we must consider whether the 

ordinances involve here survive the Carbone test. 
20 

measures designed to benefit in-state economic interests by 

burdening out-of-state competitors"). Because of that animating 

purpose, the Court has applied a two-step inquiry to determine 

whether a challenged ordinance or regulation violates the 

Commerce Clause. 

 The first step involves determining whether the 

ordinance discriminates against interstate commerce; 

discrimination is defined as the "differential treatment of instate and out-of-state economic interests that benefits the 

former and burdens the latter." Oregon Waste Syst. Inc. v. Dept. 

of Environmental Quality of Oregon, 114 S.Ct. 1360 (1994). If "a 

state law is shown to discriminate against interstate commerce 

'either on its face or in practical effect,' the burden falls on 

the State to demonstrate both that the statute 'serves a 

legitimate local purpose,' and that this purpose could not be 

served as well by available nondiscriminatory means." Maine v. 

Taylor, 106 S. Ct 2440, 2447 (citing Hughes v. Oklahoma, 441 U.S. 

at 336, 99 S. Ct. at 1736); Foster-Fountain Packing Co. v. 

Haydel, 278 U.S. 1, 10 (1928). 

 But if the ordinance does not discriminate against 

interstate commerce either in purpose or effect, it is subjected 

to a balancing test whereby the statute will be upheld unless 

"the burden imposed on such commerce is clearly excessive in 

relation to the putative local benefits." Pike v. Bruce Church 

Inc., 397 U.S. 137, 142 (1970). For instance, in Minnesota v. 

Clover Leaf Creamery Co., 449 U.S. 456, 101 S. Ct. 715 (1981), 

the Court upheld a Minnesota statute that banned the retail sale 
21 

of milk in plastic jugs. Because the statute imposed burdens on 

both in-state and out-of-state dairies, it was subjected only to 

the Pike balancing test. After determining which standard to 

apply, courts must then determine whether the statute can meet 

the test enunciated under the appropriate standards. 

 1. Triggering Strict Scrutiny: Discriminatory 

 Purpose or Effect 

 A regulation serving a protectionist purpose is 

obviously invalid since a discriminatory purpose is a fortiori

illegitimate. See Philadelphia v. New Jersey, 437 U.S. at 624, 

98 S. Ct. at 2535 (characterizing a statute with a protectionist 

purpose as virtually per se invalid). More benign purposes, 

however, do not immunize the statute from the challenge since 

"the evil of protectionism can reside in legislative means as 

well as legislative ends." Id. at 626, 2536; see also Fort 

Gratiot Landfill v. Michigan Department of Natural Resources, 112 

S. Ct. 2019, 2024 (1992) (invalidating legislation with 

legitimate goals since even valid purposes may not be 

accomplished "by the illegitimate means of isolating [the county] 

from the national economy"). 

 If a statute's purpose is not manifestly 

discriminatory, the court must determine "how directly [the 

statute] burdens interstate commerce and how evenhandedly it 

impacts interstate and intrastate commerce." Stephen D. DeVito, 

Jr. Trucking v. RISWMC, 770 F. Supp. 775, 781 (D.R.I. 1991); see 

also Carbone, 104 S. Ct. at 1684 (courts look beyond explicit 

terms of statute to examine its practical purpose or effect); 
22 

Hughes, 441 U.S. at 336, 99 S. Ct. at 1736; Taylor, 477 U.S. at 

138, 106 S. Ct. at 2447; Fort Gratiot, 112 S. Ct. at 2023-25 

(either purpose or effect can trigger strict scrutiny); Norfolk 

S. Corp. v. Oberly, 822 F.2d 388, 406 (3d Cir. 1987). This court 

has expressed some doubt whether a showing of discriminatory 

effect alone could suffice. See Oberly, 822 F.2d at 400-01 n.18. 

But Carbone and the entire line of recent Supreme Court cases 

have clarified that either purpose or effect will trigger strict 

scrutiny analysis. We also note that where the showing of effect 

is weak, demonstrating discriminatory purpose buttresses the 

case. 

 As we explained, the purpose of the dormant Commerce 

Clause is to prevent "[s]tate and local governments [from using] 

their regulatory power to favor local enterprise by prohibiting 

patronage of out-of-state competitors or their facilities." 

Carbone, 114 S. Ct. at 1684; see also H.P. Hood & Sons, Inc. v. 

Du Mond, 336 U.S. at 537-38 ("What is ultimate is the principle 

that one state in its dealings with another may not place itself 

in a position of economic isolation."). The purpose of the 

dormant Commerce Clause is not to protect individual firms. In 

Exxon Corp. v. Maryland, 437 U.S. 117, 126, 98 S. Ct. 2207, 2214 

(1978), the Supreme Court upheld a statute prohibiting a 

petroleum producer or refiner from operating retail service 

stations within the state. The Court explained: 

While the refiners will no longer enjoy their 

same status in the Maryland market, in-state 

independent dealers will have no competitive 

advantage over out-of-state dealers. The fact 

that the burden of a state regulation falls 
23 

on some interstate companies does not, by 

itself, establish a claim of discrimination 

against interstate commerce. 

Id. at 2214. Conversely, the one-time selection of an in-state 

interest does not by itself establish a discriminatory effect 

unless the selection confers an unreasonably long-term benefit. 

 This Court has recently rejected attempts to 

characterize all legislative schemes which award business to a 

successful bidder as Commerce Clause violations. Atlantic Coast, 

48 F.3d at 714-15. Although we recognized that regulations of 

public utilities (including those that require the utility to 

secure its capacity within the state) are now subject to the same 

Commerce Clause scrutiny as non-utility statutes, we found 

significant precedent for local government authorities to select 

a single service provider in the public utility context: 

A gas or electric utility granted a franchise 

to serve the needs of all residents within a 

local area is not ordinarily required to 

commit to producing its electricity or 

securing its natural gas supply within that 

area as well. Normally, both in-state and 

out-of-state interests may, therefore, 

compete equally for the franchise award and 

the creation of a captive consumer base does 

not, under these circumstances, discriminate 

against electricity and gas generated or 

produced out of state. 

48 F.3d at 715. 

 Carbone explicitly rejected the argument that a 

disputed statute would have to favor all in-state businesses as a 

group -- a statute may be invalid if it favors only a single or 

finite set of businesses. 114 S. Ct. at 1682-83. Consequently, 
24 

where a challenge is based on the alleged favoritism of a finite 

set of in-state interests (rather than all in-state businesses), 

it must be demonstrated that the ordinance actually favors the 

chosen in-state providers. That the ordinance requires the use 

of the selected facility, thus prohibiting the use of nondesignated facilities (which may be out of state), does not 

itself establish a Commerce Clause violation. 

 B. THE SOLID WASTE COMMERCE CLAUSE JURISPRUDENCE 

The Early Cases

 The Supreme Court first recognized that the interstate 

hauling of solid waste was commerce for the purposes of Commerce 

Clause analysis in City of Philadelphia v. New Jersey, 437 U.S. 

617 (1978). In that case, the Court struck down a New Jersey 

ordinance that prohibited the importation of solid or liquid 

waste that originated out-of-state. While New Jersey could 

pursue its goal of restricting access to its diminishing waste 

disposal facilities, it could not do so by blocking only out-ofstate waste. Id. at 626-27. The Court explained that such a 

clear example of purposeful economic protectionism -- a virtual 

import ban -- is subject to a per se rule of invalidity. Id. at 

625. 

 Despite the solid waste disposal crisis of the 1980s, 

the Supreme Court has invalidated each of the ordinances that 

attempted to ban or to levy differential surcharges on waste 

generated out-of-state. See, e.g., Fort Gratiot, 112 S. Ct. at 

2019 (1992) (invalidating regulation prohibiting out-of state 

waste in the landfill unless authorized by Congress); Oregon 
25 

Waste Sys. Inc. v. Dept. of Environmental Quality of Oregon, 114 

S. Ct. 1346 (1994) (voiding differential charge); Chemical Waste 

Management Inc. v. Hunt, 112 S. Ct. 2009 (1992) (same). 

 In response to these successful constitutional 

challenges, municipalities sought other means of managing solid 

waste disposal. Instead of attempting to limit the quantity of 

waste by banning or discouraging the importation of out-of-state 

waste, local governments opted to expand the capacity of their 

waste disposal facilities. They obtained the financing for these 

expansions by adopting flow control ordinances, which were 

necessary to reassure the bondholders (and the underwriters). 

Dormant Commerce Clause challenges to these statutes ensued. 

 C. CARBONE

 In C & A Carbone, Inc. v. Town of Clarkstown, 114 S. 

Ct. 1677 (1994), the Supreme Court transposed its skepticism of 

waste control initiatives to flow control ordinances. Reversing 

the decision of an intermediate appellate court, the Court struck 

down Clarkstown's law requiring all nonhazardous solid waste 

within the town, whether or not generated in the town, to be 

deposited at a town-designated transfer station. The town had 

arranged with a private contractor to construct the designated 

site (which was within the town, and perforce in-state) in return 

for the town's commitment to deliver and pay for the processing 

of at least 120,000 tons of solid waste annually. At the end of 

a five year period, the town could purchase the facility for one 

dollar. Because the town's guaranteed tipping fee was higher 

than the cost on the private market, the town needed to adopt the 
26 

flow control ordinance to obtain the fee from the haulers and to 

minimize its own obligations under the guarantee agreement. 

 The Court found that Clarkstown's ordinance 

discriminated against interstate commerce by bestowing a favored 

status on the single waste processor within the town and by 

"depriving competitors, including out-of-state firms, of access 

to a local market," 114 S. Ct. at 1680. The Court was 

unpersuaded by the argument that the ordinance did not 

discriminate because it applied equally to in-state and out-ofstate haulers. Id. at 1682 (citing Dean Milk Co. v. Madison, 71 

S. Ct. 295 (1951); Fort Gratiot Sanitary Landfill, Inc. v. 

Michigan Dept. of Natural Resources, 112 S. Ct. 2019, 2024 

(1992)). Instead, the Court regarded Clarkstown's ordinance as 

"just one more instance of local processing requirements" that 

the Court has long held invalid. Id. at 1682-83 (citing cases 

involving statutes that required various articles of commerce to 

be processed within their state of origin). The Clarkstown 

statute fit this mold since its terms explicitly required "all 

solid waste within or generated within the Town of Clarkstown . . 

. [to be] delivered to the Town of Clarkstown solid waste 

facility at Route 303, West Nyack, New York and such other sites, 

situated in the Town." Carbone, 114 S. Ct. at 1685 app. The 

statute did not mention any possibility of adding additional or 

alternative sites. 

 Because the single site designated by the ordinance was 

in state, the Court presumed that Clarkstown's ordinance had the 

"design and effect" of hoarding a local resource. Id. at 1683. 
27 

That Clarkstown intended the scheme to serve as a financing 

measure imparted it with a discriminatory purpose, according to 

the Court. 114 S. Ct. at 1684. Although the majority rejected 

Justice O'Connor's view that, to be discriminatory, a law must 

discriminate against out-of-state interests as a group, the Court 

still required that the law discriminate in favor of an in-state 

interest. 114 S. Ct. at 1682-83. Moreover, the Clarkstown 

ordinance did not provide for amendment to add other, perhaps 

out-of-state sites, and did not limit the period of the 

designation. Indeed, the town's likely ownership of the transfer 

station after five years seems to render the station's monopoly 

permanent. 

 Since Carbone, flow control ordinances have been 

subjected to searching Commerce Clause scrutiny. Some 

commentators have characterized the language of the Carbone

opinion as exceptionally broad, and acknowledged that the 

decision places the "painstakingly privatized waste disposal 

systems" in jeopardy by denying the municipalities the principal 

means of support they have used to finance such facilities. 

Petersen & Abramowitz, 22 FORDHAM URB. L.J. at *15 [n.170]; see 

also Vago, The Uncertain Future of Flow Control Ordinances, 22 N.

KY. L. REV. at 105, 107 (citing examples of endangered 

facilities); and 109 (describing impracticality of Court's 

municipal bond suggestion). While Carbone undisputedly sweeps 

quite broadly, we do not read it to establish a per se rule 

subjecting all flow control ordinances to strict scrutiny. 
28 

Whether strict scrutiny applies is crucial because its 

application is usually fatal to a challenged regulation. 

 D. ATLANTIC COAST

 We applied Carbone in Atlantic Coast Demolition & 

Recycling, Inc. v. Board of Chosen Freeholders of Atlantic 

County, 48 F.3d 701 (3d Cir. 1995). Atlantic Coast involved a 

challenge to New Jersey's solid waste management regime, which 

was adopted in response to that state's especially severe solid 

waste crisis during the 1970s and '80s. Provisions of the Solid 

Waste Management Act, N.J. Stat. Ann. §13:1E-1 to -207 (West 1991 

& supp. 1994), and the Solid Waste Utility Control Act, N.J. 

Stat. Ann. § 48:13A-1 to 13 (West Supp. 1994), authorized the 

local waste districts to adopt flow control ordinances mandating 

the delivery of certain wastes to designated facilities that 

charge higher tipping fees in order to cover operating expenses 

and repay revenue bonds used to finance the capital expenditures 

of constructing these facilities. 

 In addressing the challenge, we rejected the attempt to 

frame the issue as one of the constitutionality of the statute 

after the designation was made, thus refuting the contention that 

the challenged ordinance, which required waste to be deposited at 

the designated facility (which was in-state), amounted to an 

export ban. We found significant precedent allowing local 

government authorities to select a single service provider in the 

public utility context: 

A gas or electric utility granted a franchise 

to serve the needs of all residents within a 

local area is not ordinarily required to 
29 

commit to producing its electricity or 

securing its natural gas supply within that 

area as well. Normally, both in-state and 

out-of-state interests may, therefore, 

compete equally for the franchise award and 

the creation of a captive consumer base does 

not, under these circumstances, discriminate 

against electricity and gas generated or 

produced out of state. 

48 F.3d at 715. 

 Nevertheless, in Atlantic Coast there were strong 

indications that in-state and out-of-state businesses did not 

compete equally. The designation process set forth in the 

state's regulations under SWUCA and SWMA, N.J. Admin. Cod tit. 7, 

§26-6.6, allowed for the designation of facilities in the waste 

district, in another waste district or out-of-state. The state's 

Department of Environmental Protection and Energy ("D.E.P.E.") 

admitted, however, that its goal was to secure the state's self 

sufficiency in non-recyclable waste disposal. Moreover, a 

district wishing to designate an out-of-state facility had to 

certify to the Department that there were no suitable 

alternatives within the state, either in their waste district or 

in another waste district. See N.J. Stat Ann. §13:1E-21 (1991). 

Accordingly, the district court found that it was "clear that the 

D.E.P.E. administers the law with the specific goal that all 

waste generated New Jersey be disposed of within the borders of 

the state." (Civ. No. 93-cv-02669) (JEI). 

 Rather than representing a truly open and competitive 

process, we found that New Jersey "designation process is 

intended to favor operators that have facilities already located 
30 

within, or those that are willing to construct a facility within, 

the state." 48 F.3d at 708. Indeed, in rejecting the argument 

that out-of-state businesses could compete for designation, we 

explained that the New Jersey regime, with its "core" goal of New 

Jersey's waste self-sufficiency in five years, assured that "out 

of state facilities do not compete on anything approaching a 

level playing field." 48 F.3d at 713. In interpreting Carbone, 

therefore, Atlantic Coast did not consider all flow control 

ordinances to be per se discriminatory (and consequently subject 

to strict scrutiny analysis). Instead, we focused on the 

process, and invalidated a scheme in which the process 

discriminated against out-of-state facilities. 

 E. OTHER CIRCUITS 

 Other circuits applying Carbone have upheld flow 

control ordinances. The Tenth Circuit held that an Oklahoma 

county's scheme requiring operators of industrial waste disposal 

sites to obtain conditional use permits did not discriminate 

against interstate commerce. See Blue Circle Cement v. Board of 

County Comm'rs, 27 F.3d 1499, 1512 (10th Cir. 1994) (remanding 

for the application of the Pike test). The ordinance did not 

discriminate against the out-of-state plaintiff seeking to 

operate a hazardous waste fuel (HWF) conversion facility since 

"[i]ts site conditions apply equally, regardless of the origin of 

the HWF's being burned and it confers no advantages on in-state 
31 

entities seeking to store, treat, recycle, or dispose of HWFs as 

against out-of-state firms." Id. at 1512.0

 F. SUMMARY OF APPLICABLE PRINCIPLES 

 From our review of the caselaw, we derive the following 

relevant principles. Local government acts that categorically 

favor all in-state providers clearly violate the dormant Commerce 

Clause. Acts that concentrate waste hauling or processing 

business in the hands of a single or finite set of in-state 

providers are also suspect from a dormant Commerce Clause 

perspective. Although such regulations ultimately prohibit the 

transport of solid waste to nondesignated sites -- which, in 

these cases, amounts to a prohibition on the export of waste to 

other states -- the fact that the designated sites happened to be 

in-state does not, standing alone, establish that the flow 

control schemes discriminate against interstate commerce. To 

determine whether these flow control schemes actually 

discriminate against interstate commerce (triggering strict 

scrutiny analysis) the court must closely examine: (1) the 

designation process; (2) the duration of the designation; and (3) 

the likelihood of an amendment to add alternative sites, for 

signs that out-of-state bidders do not in practice enjoy equal 

access to the local market. 

 

0In Kleenwell Biohazard Waste v. Nelson, 48 F.3d 391, 398 (9th 

Cir. 1995), the Ninth Circuit held that Washington's scheme 

requiring solid waste haulers to obtain certification from a 

state commission did not discriminate against out-of-state 

interests. The Washington scheme did not, however, designate a 

landfill or require that certified haulers use a particular 

facility and thus did not present the same issue we confront 

today. 
32 

 These precepts are fully consistent with the precedents 

in this area. While Carbone clearly has broad application, it 

did not establish a per se rule subjecting all flow control 

ordinances to strict scrutiny. The Court's discussion reveals 

that its decision was not based on the fact that waste was 

required to be processed at a single plant. Instead, the Court 

regarded Clarkstown's ordinance as "just one more instance of 

local processing requirements" that the Court has long held 

invalid. Id. at 1682-83 (citing cases involving statutes that 

required various articles of commerce to be processed within 

their state of origin). And in interpreting Carbone, this Court 

has focused on the process of selecting waste service providers 

rather than on the effect of the regulation once a provider or 

providers have been chosen. See Atlantic Coast, 48 F.3d at 713. 

That a flow control ordinance requires all waste to be processed 

or deposited in state for some fixed period of time, therefore, 

does not necessarily violate the dormant Commerce Clause unless 

out-of-state businesses did not compete on an even playing field 

for the designation. If it were the designation of a single site 

that offended the Commerce Clause, then a scheme "hoarding 

business" for an out-of-state interest would be invalid even 

though the scheme in no way advanced a protectionist purpose or 

effect. 

 While the process in Atantic Coast clearly favored in 

state bidders, not every process used to select a single provider 

is necessarily infected with this same parochialism. We believe, 

in fact, that a local authority could choose a single provider --
33 

without impermissibly discriminating against inter-state commerce 

-- so long as the selection process was open and competitive and 

offered truly equal opportunities to in- and out-of-state 

businesses. See discussion of Exxon and Atlantic Coast, supra at 

24 & 30-31. 

 The burden of showing that the statute discriminates 

rests on the party challenging the statute. See, e.g., Hughes v. 

Oklahoma, 441 U.S. 322, 336 (1979) ("The burden to show 

discrimination rests on the party challenging the validity of the 

statute . . . ."); J. Filiberto Sanitation, Inc. v. Dept. of 

Environmental Protection, 857 F.2d 913, 919 (3d Cir. 1988) ("As 

the party attacking the statute, Filiberto bears the burden of 

showing discrimination"). To make this showing, a plaintiff 

challenging a designation scheme like the one at issue here must 

show that the designation process favors, either purposely or in 

effect, in-state sites. We recognize the difficulties of 

ascertaining whether long-term designations are really necessary, 

and whether the selection criteria are truly objective. Courts 

considering flow control schemes where only in-state facilities 

are designated must therefore keep this difficulty in mind when 

scrutinizing the allegedly discriminatory criteria proffered by 

challengers. Admittedly, we cannot cite any authority for the 

sort of inquiry we will describe, but this area of law is 

nascent, and we are constrained to draw upon notions of 

reasonableness to effectuate the relevant policies. 

 As discrimination may reside in either purpose or 

effect, a number of things can demonstrate that the designation 
34 

process impermissibly favored in-state interests/bidders. 

Certainly, there could be direct evidence of favoritism, as there 

was in Atlantic Coast, or corrupt payments. Or a seemingly 

neutral bid specification with an entirely legitimate purpose, 

such as a specified proximity requirement, may have the effect of 

giving in-state interests an advantage. For instance, the 

incentive to protect a municipal investment, exemplified by the 

attempt in Carbone to minimize the town's exposure under the 

guarantee agreement, would impermissibly skew the process against 

a new -- potentially out-of-state -- provider attempting to gain 

designation in order to compete with an existing in-state 

facility. 

 Moreover, there may be aspects of a flow control regime 

that appear to be so unnecessarily restrictive that a factfinder 

reasonably could conclude that their real purpose was to entrench 

the local interest once selected by a neutral designation 

process. Examples of such regulations are excessively long 

periods of exclusive service rights under the designation, or an 

absence of any allowance or the absence of any real possibility 

for the designation of additional, potentially out-of-state 

sites.0

 

0There are, of course, others. While we are reluctant to pass on 

the reasonableness of the long-term tipping fees contracted for 

by some municipalities implementing flow control, there may be 

cases where the contractual fee is so much higher than both the 

spot rate and the rates prevailing at the time of contract that 

one could conclude that the designation was being used as a 

vehicle to deliver an extraordinary profit to a favored facility. 
35 

 The governmental defendants can rebut a putative 

showing of discrimination by presenting evidence demonstrating 

that the designation process was open, fair, and competitive, 

i.e., determined by objective criteria which do not have the 

effect of favoring in-state interests. Courts should require 

that government defendants produce substantial evidence in order 

to rebut the plaintiff's showing. Such evidence might include 

bid solicitation, selection criteria, evaluation of bidders, et

alia, but such evidence alone may be insufficient to prove the 

flow control scheme's neutrality. The government defendants in 

these cases might also present additional evidence, such as 

statistical evidence or expert testimony, demonstrating that 

different aspects of the designation process are as neutral to 

out-of-state interests in practice as they appear on their face. 

Municipalities that have adopted flow control schemes would also 

be wise to demonstrate that the goals of the designation process 

included capacity assurance and the protection of the public 

health and safety. 

 If the government defendant cannot satisfactorily 

demonstrate that the ordinance does not have the purpose or 

effect of discriminating against interstate commerce, it must 

then prove that the ordinance survives strict scrutiny analysis 

(in order to have the ordinance upheld). This comports with 

other dormant Commerce Clause contexts where, once a plaintiff 

has shown that a law or regulation discriminates against 

interstate commerce, "the burden falls on the State to 

demonstrate both that the statute 'serves a legitimate local 
36 

purpose,' and that this purpose could not be served as well by 

available nondiscriminatory means." Maine v. Taylor, 477 U.S. at 

138, 106 S. Ct. at 2447 (quoting Hughes v. Oklahoma, 441 U.S. 

322, 336, 99 S. Ct. 1727, 1736 (1979). Of course, if the 

defendants succeed in the first showing, then the ordinance would 

be subject only to the Pike balancing test under which the 

plaintiff must prove that "the burden imposed on such commerce is 

clearly excessive in relation to the putative local benefits." 

See Pike, 397 U.S. at 142, 90 S. Ct. at 847.0

V. APPLICATION TO THESE CASES 

 A. HARVEY

 In granting judgment for Chester County, the district 

court determined that the Ordinance "does not discriminate on its 

face nor is the primary purpose or effect" to discriminate. The 

court, however, demanded too much, for in order to find a dormant 

Commerce Clause violation there is no requirement that 

discrimination must be the "primary" purpose or effect. This 

erroneous legal conclusion would alone mandate that we set aside 

the judgment and remand for consideration under the proper legal 

standard. Moreover, the current record creates the strong 

impression that the Chester County process was not sufficiently 

open, and that there was no real potential for amendment that 

 

0We assume that these flow control ordinances will always have a 

sufficient effect on interstate commerce to warrant at least some 

Commerce Clause scrutiny. 
37 

could offer out-of-state bidders a fair chance at Chester 

County's business.0

 In combination, Pennsylvania's Act 101 and the Chester 

County ordinance require that waste from within Chester County be 

disposed of at one of the County's designated sites, all of which 

are located within the Commonwealth. Harvey contends that, 

because the County's Plan, adopted pursuant to the flow control 

ordinance, specifies only the Lanchester, SECCRA, and Pottstown 

facilities, the entire flow control scheme facially discriminates 

against inter-state commerce. We disagree. As in the public 

utility context described supra, local governments have the 

capacity, in the practical exercise of their police powers, which 

are at their strongest in the health and safety area, to contract 

with specific businesses to provide certain services. 

Furthermore, to accept Harvey's contention that a plan 

designating in-state sites facially discriminates against 

interstate commerce would require a local government to select 

out-of-state sites, irrespective of their merits, in order to 

withstand Commerce Clause scrutiny. This result plainly cannot 

prevail. 

 

0We have considered the joint motion of defendants (Chester 

County, the Authority, the Commonwealth of Pennsylvania, and the 

DER) to strike portions of appellant's opening brief and 

appendix. Essentially, the defendants argue that Harvey has 

relied on different excerpts from various depositions, agreements 

and exhibits than it did in the district court. But because the 

parts, albeit different parts, of the disputed materials were 

submitted to the district court, the materials were incorporated 

by reference into the record in their entirety. Thus, the Motion 

will be denied. 
38 

 Also contrary to Harvey's assertions, this case does 

not resemble those cases involving export or import bans (we will 

refer to the alleged violation here as a ban on the importation 

of waste disposal site services) since those cases explicitly 

banned out-of-state interests from participating in the local 

market because they were from outside the state. See, e.g., 

Philadelphia, 437 U.S. at 624; Fort Gratiot, 112 S. Ct. at 2024. 

We do not mean to suggest that the ordinance must have the 

purpose of discriminating against inter-state commerce, for it is 

well settled that ordinances which have the effect of 

discriminating also violate the Commerce Clause. See Carbone, 

114 S.Ct at 1684; Fort Gratiot, 112 S. Ct. at 2023-25. But if 

effects are the purported basis for unconstitutionality, the 

statute must have the consistent effect or the inherent bias of 

favoring one or more in-state interests. 

 Harvey might still prevail if it can demonstrate that 

the Act or the Ordinance discriminates through some aspect of the 

selection process which favors in-state bidders for the 

designation because they are local facilities. Although Act 101 

does not require flow control ordinances, it does offer 

guidelines to those localities which adopt them. We will 

therefore examine both the Act and Chester's Plan, as implemented 

by its ordinances. 

 1. Act 101 

 The Act does not mandate flow control ordinances; it 

only authorizes counties to adopt them. SA 385; §303(a)-(e). One 

of the County's witnesses claimed that Pennsylvania's Act 101 
39 

directs the county to use a fair, open and competitive process to 

select its providers, see 53 P.S. §4000.502(f)(2) (requiring plan 

to describe alternative facilities considered and "provide 

reasonable assurances that the county utilized a fair, open and 

competitive process for selecting such facilities or programs 

from among alternatives"); 53 P.S. §4000.503(c) (requiring the 

county to make the plan available for a 90-day public review 

period and hold at least one public hearing on the proposed 

plan); 53 P.S. §4000.502(d) (providing that when additional 

disposal capacity is needed, "the county shall give public notice 

of such a determination and solicit proposals and recommendations 

regarding facilities and programs to provide such capacity"). 

 While these provisions of the Act suggest an open 

process, other provisions do not seem so neutral. One provision, 

for example, provides that "[p]roper and adequate processing and 

disposal of municipal waste generated within a county requires 

the generating county to give first choice to new processing and 

disposal sites located within that county." 53 P.S. 

§4000.102(6). Another provision states that County waste 

management plans "shall identify the general location within a 

county where each municipal waste processing or disposal facility 

. . . will be located and . . . explain how the site will be 

chosen. For any facility that is proposed to be located outside 

the county, the plan shall explain in detail the reasons for 

selecting such a facility." 53 P.S. §4000.502(g) (emphasis 

added). By imposing an incremental administrative burden on 

counties attempting to designate a facility outside its borders, 
40 

these provisions clearly express a preference that counties use 

sites within their borders. While not as strong an expression of 

favoritism, the Act's preference for in-county sites resembles 

the policies we found offensive in Atlantic Coast. 

 Although Pennsylvania's policy preferences evidence 

some intent to favor in-state sites, Harvey did not attack the 

Act directly and did not rely upon any of these passages of the 

Act. With the provisions nonetheless in mind, we will therefore 

proceed to examine the County's implementation of the waste 

disposal planning mandate to determine whether Chester County 

officials in fact favored sites within the county. 

 2. The Plan 

 We do not doubt that the county's legitimate intention 

to comply with the Act0 motivated its adoption of flow control. 

But legitimacy of purpose generally does not end our inquiry. If 

the manner in which the county implemented its flow control 

system, particularly the process used to designate the ten year 

providers, favored in-county interests, then the flow control 

ordinance has the effect of discriminating against interstate 

commerce and must be subject to the strict scrutiny test 

enunciated in Taylor and Philadelphia. 

 Chester County does indeed appear to have favored incounty interests. It is true that one cannot draw any inferences 

about the equity of the designation process from its description 

 

0There are indications that the state authority, the DER, was 

going to withhold approval of the plan unless it included flow 

control. SA331. 
41 

in the Chester ordinance. Section 2 of the ordinance originally 

defined "designated facilities" as "those processing or disposal 

facilities designated by resolution of the Chester County Board 

of Commissioners adopted in accordance with the Plan." (SA 252). 

The lateear whether the Committee actually considered designating 

those sites or whether it was simply investigating an alternative 

method of waste disposal. If the Committee never considered 

designating those sitesy." 

 Other provisions of the Plan, however, do reveal a bias 

for designating in-county sites. For instance, the Plan provides 

that "The County will consider developing an in-County resource 

recovery facility" (emphasis added), if in-County landfill 

capacity becomes unavailable, or if the County cannot secure 

sufficient capacity outside the county. These particular 

provisions of the Plan reveal that the Committee intended to keep 

the waste disposal business within the County. 

 Although the county was not favoring all in-County 

sites simply because they were in state (thus not favoring inCounty sites as a group), this does not preclude a finding of 

impermissible discrimination. Establishing discrimination 

requires only a demonstration that out-of-state interests did not 

compete for designation on a level playing field. We believe 

that the County's economic interest in keeping the business at 

home and the Plan's legislative history, see, e.g., A135, suggest 

that the designation process did not offer a level playing 
42 

field.0 That the county sought only to provide environmentally 

safe waste disposal capacity, a legitimate exercise of its police 

powers, would not save the Plan: as we have explained, "the evil 

of protectionism can reside in legislative means as well as 

legislative ends." Philadelphia, 437 U.S. at 627. 

 a. Designation 

 Harvey claims that, in preparing the Plan, "the County 

never considered any out-of-state landfill for designation or 

allowed any such facility to submit a bid to accept County 

waste." If supported, these allegations would establish that 

out-of-state sites did not compete on a "level playing field" and 

that the process had the effect of discriminating against 

interstate commerce. At least some of these accusations are not 

borne out by the record, however. The County included a 

description of the Waste Advisory Committee's consideration of 

alternative sites, one of which was in Baltimore, Maryland, and 

one in Philadelphia.0

 

0Although the county's pre-existing economic interest in the 

designated landfill creates the incentive for the county to favor 

these in-state sites in violation of the dormant commerce clause, 

not every case where the county has an economic stake in the 

designated site will result in such a violation. The county 

could, for example, have selected the designated sites in an 

open, fair and competitive process, and then made investments in 

improving those sites. The length of the period of designation 

would, of course, have to be related to the amount of the 

investment. 

0It is not clear whether the Committee actually considered 

designating those sites or whether it was simply investigating an 

alternative method of waste disposal. If the Committee never 

considered designating those sites, that would increase the 

impression that the process favored the in-state facilities. 
43 

 But other aspects of the County's process are less 

reassuring. While the Committee met 13 times to discuss various 

aspects of the plan and evaluate the alternative waste disposal 

strategies and facilities (app 23), and while these meetings were 

supposed to be open to the public, they were advertised in only 

one small, local newspaper, the Daily Local News. Public 

hearings to review the draft Plan were held on May 29 and 31, 

1990, but there is no reason to believe that those meetings were 

any better publicized.0 In the end, the Committee selected the 

two in-county sites that already served as the primary disposal 

sites for the County's waste. The Pottstown facility was 

designated as an alternate only after the process was concluded 

(as the result of two letters and public comment received during 

the review and comment period). Two factors in particular create 

the impression that parochialism rather than competition 

determined the outcome of the designation process: (1) that 

established local businesses won the designation; and (2) that 

the Pottstown site was designated as an alternative after the 

process had concluded -- a status that appears to have been 

specially created for this situation. 

 b. Escape Valves: Amendment 

 

0Of course, if the County can demonstrate on remand that the 

relevant out-of-state market participants knew about the 

designation opportunity anyway -- and perhaps word of such 

proposals travels quickly through the trade grapevine -- that 

would rebut the evidence about the lack of adequate publicity and 

tend to show that the process was open. Similarly, if the County 

could demonstrate that the publication was a specialized trade 

journal which effectively notified the relevant market 

participants despite its relatively small circulation, that would 

also refute evidence that the bidding process was closed. 
44 

 The capacity to amend the Plan in order to add 

additional sites does not appear sufficiently to mitigate the 

effect of having chosen the established in-state interests. If 

the amendment process were open and fairly liberal, it could 

conceivably save the initially discriminatory effect of "home 

cooking." But the amendment process in Chester's Plan is quite 

constrained: additional sites can only be designated if the 

existing facilities have insufficient capacity, are unable to 

obtain expansion permits, develop unforeseen environmental 

problems which preclude continued use of those facilities, or are 

subject to regulatory changes which affect their capacity or 

preclude their continued use. See Chester County Selection and 

Justification of Municipal Waste Management Program § 6.3.4. The 

prospect that an out-of-state site could gain designation through 

the amendment process is too remote to equalize the opportunity 

for out-of-state businesses, which were initially shut out, to 

participate in the local waste disposal market. 

 There were, moreover, indications that the Committee 

had no intention of designating additional facilities. First, 

one of the Committee members wrote to the DER specifically 

requesting guidance on whether the County was "obligated to 

review each request formally" since it did "not wish to designate 

additional disposal facilities at this time." Second, the 

Authority had covenanted in the 1990 bond indenture not to 

"construct, acquire or operate" any waste processing plants, 
45 

structures, facilities or properties which would compete for 

revenues with those already designated by the Authority.0

 c. Economic Interest 

 It also appears that Chester County may have had an 

economic motive for favoring certain in-county sites. The County 

had purchased the Lanchester landfill through the issuance of 

$42.55 million in revenue bonds. (b.8). The County has 

guaranteed an additional $41.5 million in Authority debt, secured 

a $9.2 million letter of credit, and committed to provide the 

Authority with an additional $9.5 million for landfill projects. 

That the flow control ordinance was not adopted until after the 

county had financed the authority's purchase of SECRA does not 

lessen its incentive to assure the Authority's revenues and 

thereby shield its exposure under the guarantee agreement. 

 Flow control certainly would be an effective means to 

achieve this end: designation conferred on the three selected 

sites the capacity to charge 200-300% of the prevailing tipping 

fees at alternative sites. Lanchester charged $57 per ton and 

SECCRA charged $52 per ton. The Baltimore facility, by contrast, 

charged only $34 per ton. Furthermore, the legislative history 

of the flow control scheme suggests that this financial pressure 

did indeed play a role. The County's Administrative Agreement 

with the Authority also reflects this pressure. In that 

 

0Despite this documentary evidence indicating that there was 

little chance of an amendment, Chester County's counsel 

represented at oral argument that the county would consider 

amending the Plan to designate any facility that submitted a 

suitable bid. The district court will want to probe these 

conflicting indications on remand. 
46 

agreement, the County committed "not to adopt a new Plan or to 

amend the existing plan in such a manner as to reduce the 

existing service area of the Authority or to narrow the 

definition of municipal waste directed to the Authority, [the 

owner of the SECCRA facility]." SA 373, §6(a) [Amended and 

Restated Administrative Agreement]. 

 The need to protect the county's financial interests 

thus appears to have played a role in the county's decision to 

adopt flow control. In this respect, this case closely resembles 

Carbone, where the Supreme Court found discriminatory 

Clarkstown's "avowed purpose . . . [of] retain[ing] the 

processing fees charged at the transfer station to amortize the 

cost of the facility." 104 S. Ct. at 1680. 

 3. Summary 

 While the Act requires a fair, open and competitive 

process, and while the Committee did consider at least one outof-state and several out-of-county sites, it appears that Chester 

County's designation process did not afford other sites, 

including out-of-state sites, a level playing field. Because, 

for the many reasons stated, the process appears to have been 

biased in favor of the Lanchester, SECCRA and Pottstown 

facilities, the Plan and its implementing ordinances might have 

the effect of discriminating against interstate commerce. 

Nevertheless, because the district court did not have the benefit 

of Atlantic Coast or of the clarifications we offer today, we 

will remand so that the district could may consider Chester 

County's flow control scheme in light of these principles. We 
47 

therefore reverse the judgment and remand for further proceedings 

consistent with this opinion. 

 B. TRI-COUNTY INDUSTRIES, INC. V. COUNTY OF MERCER

 The district court in the Western District of 

Pennsylvania found that the Mercer County flow control scheme 

enacted pursuant to the Act discriminated against interstate 

commerce and granted injunctive relief in favor of the 

plaintiff/hauler. The district court opined: "It is the 

designation of a single, in-state landfill, rather than the 

process by which it was designated, that has resulted in the 

discrimination against interstate commerce." This conclusion is 

at odds with our conclusion that the focus should be on the 

designation process, on the reasonableness of the duration of the 

designation and on the practical likelihood of an amendment to 

designate an out-of-state facility. 

 Despite the erroneous legal standard used by the 

district court, we could affirm its decision if it appeared that 

these aspects of Mercer County's flow control scheme 

discriminated against interstate commerce. But we are not 

convinced that the facts in the record can establish either that 

Mercer County's designation process was truly discriminatory, 

that the contractual tipping fee was unreasonable at the time the 

site was selected, or that there was insufficient likelihood of 

amendment to show that the scheme discriminated against out-ofstate bidders. For these reasons, and those explained infra, we 

must reverse and remand for further development of these aspects 

in order to gauge the real extent of the opportunity enjoyed by 
48 

out-of-state providers to participate in the Mercer County waste 

disposal market. 

 The Mercer County scheme resulted in the designation of 

a single site. Although the designated site is not located 

within Mercer County, it is in Pennsylvania. It is possible that 

the site's selection resulted from in-state prejudice. Because 

Carbone rejected the argument that a statute had to favor all instate interests as a group in order to be discriminatory, the 

fact that Mercer's scheme allegedly favors only a single in-state 

site does not preclude a Commerce Clause challenge. Nevertheless, 

that only one in-state site has been selected under the county's 

designation process provides less evidence that the process has a 

discriminatory effect -- that is, that the process tends to 

select in-state sites -- than if a greater number of in-state 

sites had been selected in the designation process. 

 As with Harvey, the flow cr Discriminatory Effect 

 We still must directly address the question whether the 

selection criteria have the effect, irrespective of the County's 

intent or its economic interests, of favoring in-state interests. 

We emphasize that this case does not involve facial discrimination: the designation process set objective criteria to choose 

the facility. Moreover, the RFP requirements appmpt to open its 

designation process to out-of-state sites. Unlike Atlantic Coast, 

where the scheme had the explicit goal of securing in-state 

disposal capacity, Mercer County officials testified that no 

preference was given to in-state or out-of-state facilities. And 

unlike Chester County, the county prepared detailed bid 
49 

specifications and advertised its RFP nationwide. Twenty three 

companies purchased the RFP package, including companies from 

Pennsylvania, Ohio, New York, Maryland, New Jersey, Minnesota and 

Louisiana. Only four companies submitted bids in response to the 

RFP, and they all had landfills in Pennsylvania. The appellee, 

Tri-County, was among the four which submitted bids. As the 

district court acknowledged: 

"[T]he failure of the Authority to designate 

an out-of-state disposal facility was not the 

result of discrimination. Rather, it was 

attributable to the failure of any out-ofstate disposal facility to bid on the 

contract, and the evidence clearly 

established that the procedures followed by 

the Authority in selecting a disposal site 

were "fair, open and competitive," as 

required by Act 101. 

Dist. Ct. Op. at 13. (citation omitted). These facts certainly 

suggest that the process was fair, open, and competitive. 

Nevertheless, on remand Tri-County may be able to identify 

specifications of the bid or decisional criteria with a 

discriminatory effect. 

 2. Lack of Economic Interest 

 Because the county had a relatively small economic 

interest in the facilities economic performance (it received a $1 

per ton surcharge on the waste dumped at the facility), the 

district court concluded that the ordinance did not foster 

economic protectionism. As we have seen, and as the district 

court recognized, that the ordinance serves legitimate local 

purposes, does not save Mercer County's flow control scheme if 
50 

it has the effect of favoring in-state interests. But the 

relative lack of economic interest refutes at least one basis for 

the argument that the designation process did not really offer a 

level playing field to out-of-state competitors. 

 3. Potential for Discriminatory Effect 

 We still must directly address the question whether the 

selection criteria have the effect, irrespective of the County's 

intent or its economic interests, of favoring in-state interests. 

We emphasize that this case does not involve facial discrimination: the designation process set objective criteria to choose 

the facility. Moreover, the RFP requirements applied equally to 

all disposal facilities, irrespective of their location. While 

this provision appears to rule out special dispensations for instate sites, it does not preclude the possibility that some of 

the requirements were in practice more burdensome for out-ofstate interests. That a number of out of state companies 

requested the RFP package but that not a single out-of-state 

interest submitted a bid raises the concern that some aspect of 

the RFP discouraged out of state interests. 

 We recognize, of course, that there was a considerable 

attrition rate in this process overall, which may indicate that 

Mercer County's business was not terribly attractive to any

landfill operator. Indeed, of the twenty-three companies (in- or 

out-of-state) who requested the package, only four submitted a 

bid. On this record, however, it is impossible to determine 

whether the bid requirements had -- or would tend to have -- a 

disparate effect on out-of-state businesses. On remand, the 
51 

district court might consider statistical or other evidence 

regarding the differential drop out rates of firms in this 

contested designation process and/or expert testimony on the 

issue whether any specific RFP requirement was in fact more 

costly or burdensome for an out-of-state site to comply with. 

 4. Amendment 

 It is important to note that Mercer's scheme would be 

less problematic if a realistic opportunity existed for an outof-state landfill to compete for at least some of the county's 

business within a reasonable period, either because amendment to 

designate an additional site was more likely or because the 

contract period was not so long. Although the County did have 

the capacity to amend its Plan to designate an additional site0, 

the County conceded that it probably did not have enough waste to 

justify adding another facility, especially since the county had 

been advised that it would be most efficient for it to use a 

single site. Dist. Ct. Op., Add. 32-33. The designation of the 

site in this case, therefore, effectively amounts to the grant of 

a monopoly for the period of the designation. Because the Act 

required the counties to secure ten-year access to disposal 

capacity, we will not attribute a discriminatory motive to the 

county's effective grant of a ten-year monopoly in this case.0

 

0Section 3 of the Ordinance No. 6-1991 provides: "All Municipal 

Waste shall be transported to and delivered to the Facility 

designated by MCSWA from time to time. . . ." 

0Although we do not infer a discriminatory purpose from the 

length of the contractual period, we concede that this would be 

an easier case if the losers in the designation process were not 

precluded from the local market for ten years. Nevertheless, we 

cannot say, given the costs of constructing and operating 
52 

 5. Economic Favoritism 

 The possibility still exists, however, that the county 

contracted for a tipping fee that was so high relative to the 

ten-year tipping fees (the rate that the parties would be willing 

to fix for the entire period) prevailing in the market at the 

time of contracting that it would suggest an attempt to confer 

some extraordinary, super-monopolistic profit on the chosen 

landfill operator. It is not clear whether, in addition to 

securing ten-year disposal capacity, the Act required the County 

to lock in a price as well. Regardless, we would not infer any 

discrimination from the County's desire to lock in the price 

unless it turns out that the price was unreasonable at the time 

the site was selected. Although the County appears to have made 

a "bad bet" on the price of long term waste disposal,0 the market 

could just as easily have moved in the opposite direction and 

made county officials look financially savvy.0 Indeed, the 

differential between the contracted tipping fee and the spot 

market is much smaller than it is in the Harvey case: the 

contractual tipping fee was $35 per ton relative to the spot 

rates of $17.20 at the American Waste Landfill or the $27.95 due 

at the Carbon Limestone Landfill. 

 

environmentally sound facilities, that the ten-year period was 

unreasonable. 

0Spot market tipping fees, fees charged to dump waste today only, 

have declined precipitously since the County made its contract 

with the facility in Butler County. Spot rates currently are 

apparently approximately $17.50 - $30.00 per ton. 

0County officials apparently chose to lock in the tipping fee out 

of their concern that tipping fees would continue to escalate. 

See dist. ct. adjudication. 
53 

 Appellees devote considerable effort to their attempts 

to demonstrate the less restrictive alternative means of ensuring 

long term environmentally safe waste disposal capacity. We do 

not pass on the efficacy of these alternative strategies. If the 

district court decides on remand that the Mercer County 

designation scheme has the effect of discriminating against outof-state interests, it must then under the strict scrutiny 

standard address both the question whether the government 

interest is strong enough and whether less discriminatory means 

to achieve the same goal are available. 

VI. CONCLUSION 

 For the foregoing reasons, we will vacate the orders of 

the district courts in these two cases, and remand for further 

proceedings consistent with this opinion. Parties to bear their 

own costs. 

____________________________ 
54 

Harvey v. County of Chester, No. 94-1924 

Tri County v. County of Mercer, No. 94-3622 

NYGAARD, Circuit Judge, dissenting. 

 In each of the two cases before us in this appeal, the 

majority reverses the district court and remands the cause for it 

to further scrutinize the designation process. I must 

respectfully dissent. 

 Discriminatory purpose or effect triggers heightened 

scrutiny. The outcome of a selection process, however open that 

process may be, can be discriminatory in its practical effect. 

Regardless of the designation process employed, in each case a 

designation was made in the context of a flow control scheme; in 

each case, that flow control designation constituted an 

impermissible discrimination against interstate commerce and by 

effect alone triggered heightened scrutiny. I would affirm the 

order in Tri-County, in which I conclude the district court 

properly applied heightened scrutiny. I would reverse the order 

in Harvey & Harvey, and remand to the district court for it to 

apply the heightened scrutiny standard, because it failed to do 

so, despite the discriminatory effect of the designation in the 

context of flow control. 
55 

 The articles of commerce involved in these cases are 

both the waste itself and the disposal services it requires. 

"Solid waste, even if it has no value, is an article of 

commerce." Fort Gratiot Landfill v. Michigan Dep't of Natural 

Resources, 504 U.S. 353, 359, 112 S.Ct. 2019, 2023 (1992). 

Although the Supreme Court in Carbone suggested that "the article 

of commerce is not so much the solid waste itself, but rather the 

service of processing and disposing of it," C & A Carbone, Inc. 

v. Town of Clarkstown, N.Y., U.S. , 114 S.Ct. 1677, 1682 

(1992) (emphasis supplied), the Court has not eliminated 

consideration of waste as an article of commerce. Whether 

dealings between Pennsylvania generators of waste and out-ofstate waste disposal service companies are "viewed as 'sales' of 

garbage or 'purchases' of transportation and disposal services, 

the commercial transactions unquestionably have an interstate 

character." Fort Gratiot, 504 U.S. at 359, 112 S.Ct. at 2023. 

 In Carbone the Supreme Court held that a flow control 

ordinance coupled with a designation discriminated in its effect 

because it allowed only the designated operator to provide waste 

services within the geographic limits of the municipality. In 

Carbone, the town of Clarkstown designated a single, in-state 

facility to provide initial processing services for waste; its 

designation was part of a flow control scheme, which required all 

to use the designated facility. The court found that "[t]he 

ordinance thus deprives out-of-state businesses of access to a 

local market." 114 S.Ct. at 1681. Likewise, in the cases before 

us, out-of-state providers of waste services cannot accept waste 
56 

or sell services except to the extent that waste would be 

delivered to a designated facility; flow control mandates that 

waste only be delivered to a designated facility. 

 As in the Carbone case, "the real question is whether 

the flow control ordinance is valid despite its undoubted effect

on interstate commerce." Id. at 1682 (emphasis supplied).0 And, 

again as in the Carbone case, "find[ing] that the ordinance 

discriminates against interstate commerce, we need not resort to 

the Pike test." Id. 

 Thus, heightened scrutiny must be applied in the cases 

before us, because, regardless of the process employed in 

selecting waste service providers, the effect discriminates 

against interstate commerce. The Supreme Court "interpret[s] the 

Commerce Clause to invalidate local laws that impose commercial 

barriers or discriminate against an article of commerce by reason 

of its origin or destination out of State." Id. (emphasis 

supplied). 

 Heightened scrutiny analysis dictates that 

"[d]iscrimination against interstate commerce in favor of local 

business or investment is per se invalid, save in a narrow class 

of cases in which the municipality can demonstrate, under 

rigorous scrutiny, that it has no other means to advance a 

legitimate local interest." Carbone, 114 S.Ct. at 1683 (citing 

 

0Significantly, the Carbone court did not engage in an analysis 

of the process by which the Clarkstown facility was selected. It 

looked only to effect. 
57 

Maine v. Taylor, 477 U.S. 131, 106 S.Ct. 2440 (1986)).0 The 

Carbone court specifically rejected the contentions of amici in 

that case that designation coupled with a flow control scheme fit 

into the narrow class of permissible discrimination. In Carbone, 

the amici "suggest[ed] that as landfill space diminishes and 

environmental cleanup costs escalate, measures like flow control 

become necessary to ensure the safe handling and proper treatment 

of solid waste. The teaching of our cases is that these 

arguments must be rejected absent the clearest showing that the 

unobstructed flow of interstate commerce itself is unable to 

solve the local problem." 114 S.Ct. at 1683. 

 Although assurance of ten years of disposal capacity 

for county waste and of the proper disposal of waste generated in 

a county are laudable goals, the designation of facilities under 

a flow control scheme may not be essential for the achievement of 

those goals. For example, the county might receive assurances of 

ten years of capacity from a few disposal facilities without then 

requiring all county-generated waste actually to be disposed of 

at those same specific facilities. The goal of providing ten 

years of disposal capacity need not require that each facility, 

to accept waste, must provide an assurance of ten years of 

capacity.0 Like the municipality in Carbone, the county in each 

 

0Once "shown to discriminate against interstate commerce either 

on its face or in practical effect, the burden falls on the State 

to demonstrate both that the statute serves a legitimate local 

purpose, and that this purpose could not be served as well by 

available nondiscriminatory means." Maine, 477 U.S. at 138, 106 

S.Ct. at 2447 (internal quotations and citation omitted). 

0To the extent that the county might be providing an exclusive 

franchise to accept waste as payment in exchange for the 
58 

of the cases before us has open to it "any number of 

nondiscriminatory alternatives for addressing the . . . problems 

alleged to justify the ordinance in question." Id.

 As the holding of the Supreme Court in Carbone compels, 

the Tri-County district court applied the heightened scrutiny 

test upon finding that the Mercer County ordinance was 

discriminatory in its practical effect. The district court ruled 

in favor of Tri-County Industries, Inc., because the defendants 

failed to meet their burden of demonstrating the unavailability 

of nondiscriminatory alternatives. I would affirm the district 

court for the reasons it gave in its well-reasoned opinion. The 

Harvey & Harvey district court overlooked the discriminatory 

effect of designation in a flow control scheme. For that reason, 

it failed to require heightened scrutiny. I would reverse its 

holding that Pike scrutiny applied, and remand. Pike v. Bruce 

Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847 (1970). 

 

assurance of ten years of capacity, the scheme of flow control 

coupled with designation would in essence constitute a county 

scheme to finance the capacity assurance received, providing as 

payment the granting of a monopoly and its concomitant profits 

and stability in exchange for the assurance. The permissibility 

of such an arrangement is highly doubtful.