United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-2120

___________ Ben Oehrleins and Sons and * Daughter, Inc.; Elk River * Landfill, Inc.; Gallagher's * Service, Inc.; Knutson Services, * Inc.; Randy's Sanitation, Inc.; * Poor Richard's, Inc.; Vasko * Rubbish Removal, Inc.; Wasteco, * Inc.; Waste Systems Corp.; * Walter's Recycling & Refuse * Service, * * Appellees, * Appeals from the United States * District Court for the District
v. * of Minnesota. * Hennepin County, * * Appellant. * * * * State of Minnesota, by its * Attorney General and its Office * of Environmental Assistance; Ogden * Products, Inc., * * Amici Curiae. *-2-

___________ No. 96-2170

___________ Robinson Rubber Products, Co., * Inc.; Dean M. Akins; Patrick * Schoenecker; Brad Robinson, * Individually and on behalf of * all other persons similarly * situated, * * Appellees, * *
v. * * Hennepin County, * * Appellant. * * * State of Minnesota, by its * Attorney General and its Office * of Environmental Assistance; Ogden * Products, Inc., * * Amici Curiae. *

___________ Submitted: March 12, 1997 Filed: June 9, 1997

___________The H onorable Nanette K. Laughrey, United States District Judge for th e 1 Eastern and Western Districts of Missouri, sitting by designation.
-3- Before WOLLMAN and BEAM, Circuit Judges, and LAUGHREY, District Judge. 1

__________ BEAM, Circuit Judge.

This case involves the authority of a local government to regulate the flow and dis posal of solid waste. Hennepin County, Minnesota, enacted a "flow control " regulation ("Ordinance 12") that required most County waste to be deliveredto Countydesignate dtransfer stations or processing facilities. The County later suspende d enforcement of Ordinance 12 with respect to waste destined for disposal outside o f Minnesota, but continued to require all waste remaining in the state to go to th e designated facilities. Local and out-of-state waste haulers, lan dfills, and residential and

com mercial waste generators brought suit, alleging that Ordinance 12 violates th e Commerce Clause of the United States Constitution.

After finding that both sets of plaintiffs have standing, the district court concluded that Ordi nance 12, both as written and as currently enforced, discriminates against interstate commerce and permanently enjoined its enforcement. We hold that the "wast e generator" plaintiffs--that is, customers of waste haulers--do not hav e st anding. With respect to the merits, we agree that those provisions of Ordinance 12 that prevent the delivery of County waste to out-of-state processors ar e
unco nstitutional. We conclude, however, that as applied solely to intrastate wast e disposal, Ordinance 12 does not discriminate against interstate commerce, and reverse and remand that portion of the district court decision.The Supreme Court has considered co nstitutional challenges to such regulatory 2 efforts five times. See Carbone , 511 U.S. 383; Oregon Waste Sys., Inc. v. Department of Envtl. Quality , 511 U. S. 93 (1994); Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep't of Natural Resourc es , 504 U.S. 353 (1992); Chemical Waste Management, Inc. v. Hunt , 504 U.S. 334 (1992); Philadelphia v. New Jersey , 437 U.S. 617 ( 1978). There have be en many other challenges in the Courts of Appeal. See, e.g , SDDS, Inc. v

. South Dakota , 47 F.3d 263 (8th Cir. 1995); Waste Sys. Corp. v. County of Martin , 985 F.2d 1381 (8th Cir. 1993); Southeast Arkansas Landfill, Inc. v. State of Ark ansas, Dep't of Pollution Control and Ecology ( In re Southeast Arkansas Landfill, Inc. ), 981 F.2d 372 (8th Cir. 1992). See generally , John Turner, The Flo w Control of Solid Waste and the Commerce Clause: Carbone and its Progeny , 7 Vill. Envtl. L. J. 20 3 (1996); Sidney M. Wolf, The Solid Waste Crisis: Flow Cont rol and the Commerce Clause , 39 S.D. L. Rev. 529 (1994).
-4- I. BACKGROUND

Over the past twenty years or so, state and local governments have frequentl y faced the problem of how, within permissible constitutional boundaries, to regulate the flow and disposal of solid waste. As the Supreme Court recently noted, "[a]s soli d waste o utput continues apace and landfill capacity becomes more costly and scarce , state and local governments are expending significant resources to develop t rash control systems that are efficient, lawful, and protective of the environment." C & A Carbone, Inc. v. Town of Clarkstown , 511 U.S. 383, 385-86 (1994). 2
One of Minnesota's efforts in this regard is the Minnesota Waste Management Act of 1980. The Act was intended to protect the state's environment and the public health by reducing the amount of waste generated and disposed of, improving energy

recov ery from waste, coordinating waste management among political subdivisions , and developing waste facilities. Minn. Stat. § 115A.02(a). The Act sought to create

an "integ rated waste management system" in Minnesota, with a hierarchy o f p references for various waste management practices. In order of preference, the Act-5-

ad dresses waste reduction and reuse, recycling, composting, resource recovery, an d land disposal. Id. at § 115A.02(b).
To meet these goals, the Act requires counties to implement plans for l ocal waste

ma nagement. Id

. at § 115A.46. In adopting these plans, counties must consult with persons providing waste collection, processing, and disposal services, and must submit proposed plans to the state's Office of Environmental Assistance for approval. Id. at § 11 5A.46, Subd. 1(d) & (e). The Act also allows counties to develop designatio n plans which require a

ll or part of county waste to be delivered to one or more countyde signatedtransfer or disposal facilities. Id. at §§ 115A.80 - 115A.85. Certai n countie s must seek approval for waste management plans and designation plans from the Metropolitan Council, a planning and development agency created by the stat e le gislature for the seven-county Minneapolis-St. Paul metropolitan area. Id. at § 473.803, Subd. 1.

In accordance with the Act, Hennepin County (which includes Minneapolis ) created a waste management master p lan in 1981. In April 1985, the County obtained approval from the Metropolitan Council for a designation p lan to supplement its master plan. The County determined that in order to reduce the amount of County wast e disposed of in landfills, it would concentrate the disposal of Cou nty waste in "waste-toenergy" processing facilities. Central to this goal was the constructi on of a state-of-theart i ncinerator in Minneapolis that would convert certain solid waste into electricity

. In order t o finance the construction of the facility, the County issued approximatel y $150,000,000 in bonds. The resulting facility, the Hennepin Energy Resource Corp. ("HERC"), while constructed with pub lic funds, is owned and operated by two out-ofstate corporations.
In order to implement its d esignation plan, the County adopted Ordinance 12 in D e cember of 1985. The Ordinance, which took effect June 1, 1989, was intended in part to provide "assurance that sufficient quantities of designated waste will beOrdinance 12 lists other goals in its preamble, including the reduction of th e 3 volumeof County waste deposited in landfills, the recovery of materials and energ y fromsolid waste, the conservation of resources, and the furtherance of wast e management policies.
-6- deliv ered to the [HERC] Facility." Hennepin County Board Resolution No.85-12

- 3 0823-R1, reprinted in

Appellant's App. at 23. To provide this assura nce, the Ordinance requir es that all "designated waste," which includes most forms of non-hazardou s commercial and residential solid waste, be delivered only to County-d esignated transfer stations or processing facilities. The Ordinance itself originally designated certai n interim transfer stations and one processing facility: the HERC incinerator. Currently, HERC and one other privately owned waste-to-energy facility located outsid e Minneapolis are the only designated processing facilities. There are currently eigh t designated transfer stations, which re ceive the bulk of the solid waste that supplies the HERC facility.
The Ordinance provides that the County can designate additional facilities. The Ord inance also exempts from the designation requirement any waste processed a t facilit ies already in existence at the time the Metropolitan Council approved th e designa tion plan in 1985. As required by the Waste Management Act, Minn. Stat. § 115A.893, the Ordinance provides that non-designated facilities may petition th e County for exclusion of some waste from designation. The County mainta ins that it has gra ntedseveral such exclusions, including one to plaintiff Knutson Services, Inc

. Hauler s who deliver designated waste to non-designated facilities are subject t o penalties, including misdemeanor charges, fines, costs and special assessments , injunction, and the suspension or revocation of their hauling license. The County has active lymonitored haulers and has imposed penalties on companies found to hav e violated the Ordinance.Plai ntiffs also alleged that the County's enforcement of the Ordinance violates 4 their right to substantive due process and violates federal antitrust laws. These claims are not at issue in this appeal.
-7- In 1993 , the County Board passed a resolution to cease enforcement effort s against haulers who delivered designated waste to facilities outside the state. Pursuant to this resolution, the County notified waste haulers that it had "suspended, until further notice , enforcement actio ns relating to Hennepin County generated waste destined for dispos al outside the State of Minnesota." Appellant's App. at 156 (emphasis i n origina l). The County acknowledges, however, that it has continued to enforce th e Ordin ance with respect to waste delivered to non-designated facilities withi n Minnesota.

In1994, the Oehrleins plaintiffs filed suit in the district court. Plaintiffs in the Oehrleins case are eight Minnesota waste haulers, one Minnesota landfill, and on e Iowalandfill. The Robinson Rubber plaintiffs, who filed suit in 1995, are a certified class of resi dential and commercial "waste generators" in Hennepin County who paid for waste removal betwee n June 1, 1989, and the present. Both the Robinson Rubber and Oehrleins plaintiffs alleged that Ordinance 12 violates the Commerce Clause of the UnitedStates Constitution. They requested an injunction against enforcement of the Ordinance and damages under 42 U.S.C. § 1983. 4

The district court conclud ed that Ordinance 12, both as written and as enforced after the 1993 "suspension," discriminates agai nst interstate commerce, and so violates the C ommerce Clause. The district court granted summary judgment to both sets o f plaintiffs

. Ben Oehrleins and Sons and Daughter, Inc. v. Hennepin County , 922 F

. Supp. 1396, 1405 (D. Minn. 1996); Robinson Rubber Prods. Co. v. Hennepin County , No. 4-95 -220, Slip op. at 36-37 (D. Minn. March 29, 1996). In this consolidate d appeal, the County argues that the Tax Injunction Act, 28 U.S.C. § 1341, deprives the-8-

fede ral courts of jurisdiction to enjoin Ordinance 12, that all plaintiffs lack standing , and that the Ordinance does not violate the Commerce Clause.

II. DISCUSSION

A. Standing

The Cou nty maintains that both the hauler/landfill plaintiffs and the wast e generator plaintiffs lack standing to bring this action. The district court found that both sets of plaintiffs have standing.

Stand ing is the constitutional requirement, imposed by the "cases o r controvers ies" provision of Article III, that a plaintiff must allege a judiciall y cognizable and

redressable injury in order to pursue a lawsuit. Lujan v. Defenders of Wildlife , 504 U.S. 555, 559-60 (1992). To establish standing, a plaintiff mus t demon strate three minimal constitutional requirements: (1) an "injury in fact" that i s both (a) concrete and particularized, and (b) actual or imminent, rather than conjectural or hypothetical; (2) a causal connect ion between the alleged injury and the defendant's conduct; that is, that the injury is "fairly traceable" to the challen ged action; and (3) that it is likely that a favorable decision will redress the injury. Id. at 560-61.

Eve n if a plaintiff meets the minimal constitutional requirements for standing , there are prudential limits on a court's exercise of jurisdiction. These prudential limits

are judicially imposed and "are 'founded in concern about the proper--and properl y limited--role of the courts in a democrat ic society.'" Bennett v. Spear , 117 S. Ct. 1154, 11 61 (1997) (quoting Warth v. Seldin , 422 U.S. 490, 498 (1975)). Two prudentia l limits are relevant to this case. First, only in exceptional cases may a party hav e standing to as sert the rights of another. Warth , 422 U.S. at 499. This "third-part y standing" rule thus "normally bars litigants from asserting the rights or legal interests

o f others in order to obtain relief from injury to themselves." Id. at 509. In addition,T he County's original tipping fee at interim facilities, before the HERC plan t 5 began operating, w as $75 per ton. The County raised the rate to $95 per ton in 1990. In contrast, an October 199 0 report by the Metropolitan Council indicates that tipping
-9- plaintiffs alleging a violation of a constitutional or s tatutory right must demonstrate that they are within the "zone of interests" of the particular provision invoked. Bennett , 117 S. Ct. at 1161. To satisfy this prudential requirement, a plaintiff must show that "the interest sou ght to be protected by the complainant is arguably within the zone o f int erests to be protected or regulated by the statute or constitutional guarantee i n question." Association of Data Processing Serv. Orgs. v. Camp , 397 U.S. 150, 15 3 (1970); see also Bennett , 116 S. Ct. at 1161.

Ther e is no question that the Oehrleins plaintiffs, that is, various waste haulers and pro cessors, have standing. Ordinance 12 prohibits haulers from deliverin g designated waste to non-designated facilities. Haulers who violate the Ordinance are subject to a wide variety of sanctions. The record is undisputed that the County has, in fact, subjected various haulers, including some of the hauler plaintiffs, to suc h pen alties. Haulers subject to the Ordinance thus have suffered an actual or imminent injury in fact. Furthermore, the Ordinance harms processors such as the landfil l plaintiffs who wish to participate in the market for Hennepin County waste b y prohibiting access to that waste. The processor plaintiffs have therefore also alleged

a suf ficient injury in fact. These injuries are directly traceable to the County' s enactment and enforcement of Ordinance 12, and a decision holding the Ordinanc e unconstitutional would redress th ose injuries, both by clearing the way for recovery of damages and by enj oining further enforcement. Finally, we see no prudential barriers to standing for the Oehrleins plaintiffs. The class of generator plaintiffs represented by Robinson Rubber presents a more difficult question. The inj ury these plaintiffs allege is, essentially, that they have been forced to pay higher fees for waste collection, because haulers have passed on to them HERC's high f

ees. Insofar as the generator plaintiffs seek relief for the passed- 5fees a t regional landfills ranged from $25 to $60 per ton during fiscal year 1990

.

Ti pping fees at metropolitan landfills averaged $52.60 per ton, while fees at non

metropolitan landfills averag ed $40 per ton. In 1994, the County reduced tipping fees at designated facilities to $60 per ton, but also enacted a surcharge on County waste.
The generators argue that Ordinance 12 directly regulates them becaus e 6 "perso ns" subject to penalty for disposal of designated waste in non-designate d facilities include "an individual, business, . . . [or] generator ." Appellant's Appendix at 141 (emphasis added). The generator plaintiffs did not allege in their complaint , however, that they have been directly harmed by e nforcement of the Ordinance against the m. Their sole allegation of injury and claim for relief is that they have incurre d increased costs because of enforcement of the designation requirements against haulers.
-10- on c osts of the County's higher disposal fees, their alleged injury is the indirect result of the County's regulation of the haulers. "[W]hen the plaintiff is not himself the object 6 of the government

action or inaction he challenges, standing is not precluded, but it is ordinarily 'substant

ially more difficult' to establish." Lujan , 504 U.S. at 562 (citations omitted).

We conclude nonetheless that this indirect economic i njury constitutes an injury in fact. Fac ed with high tipping fees at the HERC incinerator, and prevented fro m seek ing more competitive rates elsewhere, haulers responded, naturally enough, b y charging their customers more. This economic burden on customers is concrete , particularized, and actual, and is in no way hypothetical or conjectural. Cf. Waste Sys. Corp. v. County of Martin , 985 F.2d 1381, 1387 (8th Cir. 1993) (financial burden from flow control ordinance rests in part on waste generators) . This burden may be indirect, but it is neither speculative nor merely incidental.

Furthermore, there is little question that these rate increases are fairly traceable to Ordinance 12's restrictions on waste haulers. The County does not dispute tha t haulers pay significantly higher tipping fees under the designation plan than they wouldThe desig nation plan the County submitted to the Metropolitan Council stated 7 that "ti pping fees would have to be passed on by haulers to their customers. . .

. [T]ipping fees [at designated facilities] will probably still be higher than fees fo r disposal at existing landfills. This will result in haulers having to charge higher rates for customers within Hennepin C ounty than they would charge to similar customers in neighboring counties." Reprinted inAppellant's App. at 206.
-11- pay at otherwise available landfills. Indeed, the County fully anticipated that designatio n

would result in consumers paying higher disposal fees. Finally, th e 7 generators' injuries can be effectively redressed by the remedies they seek: damages for the allegedly unconstitutional restrictions and injunction of continued enforcement. We thus hold that the generator plaintiffs s atisfy Article III's "irreducible constitutional minimum" requisites for standing. Lujan , 504 U.S. at 560.
Whether the generator plaintiffs can satisfy prudential limitations on standing is a different question. We are aware of no Commerce Clause case in which the court has granted standing to a plaintiff who was a consumer whose alleged harm was th e passed-on cost incurred by the directly regulated party. Indeed, while we continue to use the parties' s horthand term "waste generators" for the Robinson Rubber plaintiffs, this term somewh at confuses these plaintiffs' actual role: they are consumers of waste disposal services supplied by garba ge haulers such as some of the Oehrleins plaintiffs. This kin d of "consumer standing" in Commerce Clause cases has not been squarel y considered by the Supreme Court. The generator plaintiffs rely in part on the Supreme Court's recent opinion i n General Motors Corp. v. Tracy , 117 S. Ct. 811 (1997). In Tracy , Ohio imposed sales and use tax es on purchases of natural gas from all entities, whether in-state or out-ofstate. However, the state exempted from taxation g as purchased from sources that met

a s tatutory definition of "natural gas companies." The definition of "natural ga s companies," however, was effectively limited to in-state entities. As a result, the taxes were imposed only on gas purchased directly from out-of-state companies. Id. at 816.-12-

General Motors, which purchased nearly all of its natural gas from out-of-stat e
suppliers, brought suit, claiming that the tax was discriminatory and thus violated the Commerce Clause.
The Court held that General Motors had standing, even though it was an in-state firm and the discriminat

ion of which it complained was based on the out-of-state situs of its suppliers. Id. at 818. The Court relied in part on its decision in Bacchus Imports

v. Dias , 46 8 U.S. 263 (1984). In Bacchus Imports , in-state liquor wholesalers ha d standing to challenge a discriminatory tax on imported liquor; much as in Tracy , th e discrimination was based not on the plaintiff's status, but on where the purchased goods originated. Id. at 267.

The Court's recent decision in Camps Newfound/Owatonna, Inc. v. Town o f Harrison , No. 94-1988, 1997 WL 255351 (U.S. May 19, 1997), while not directl y ad dressing standing, presents a similar scenario. In Camps , the Court considered a Ma ine tax statute that exempted charitable institutions from real estate and property taxes. Under thestatute, however, charities that principally benefited nonresidents of the s tate were entitled to only a limited tax exemption. The plaintiff, a nonprofi t corporation, ran a youth camp in Maine. Ninety-five percent of the young people who visited the camp came from out side the state, rendering the camp ineligible for the full tax ex emption. The Court held that the exemption facially discriminated agains t interstate commerce because it "expressly distinguishes between entities that serve a principally interstate cli entele and those that primarily serve an intrastate market." Id. at *7.

These cases, however, do not stand for the proposition that consumers paying the end-line cost of an economic regulation have standing to challenge the regulation underth e Commerce Clause. In Tracy , Bacchus Imports , and Camps , the plaintiff s were not alleging that they incurred a passed-on cost; rather, the plaintiffs--not the outof-state entities--were directly assessed the challenged taxes. Furthermore, theInthis respect, Camps presents a slightly different situation. In that case, the 8
cons umers--that

is, the campers--were themselves purchasing services across stat e borders , and coming into Maine temporarily in order to make use of those services

. They were t hus unlike the generator plaintiffs in this case, who are state resident s dealing with in-state waste haulers.
-13- plaintiffs in those cases were, in fact, directly subject to discrimina tion: they were liable fortaxes based on where they purchased goods or (in the case of Camps ) th e
no nresident

status of their customers. The plaintiffs' Commerce Clause challenge s soughtto protect their own rights to purchase goods or do business across stat e borders, without being subject to a discriminatory tax.

The r ights vindicated in Tracy , Bacchus Imports , and Camps are, in fact , comparable to the rights asserted by the hauler plaintiffs in this case . As in those cases, the haule r plaintiffs are directly subject to extra costs (as well as criminal charges , fines, and other p enalties) based on where they choose to do business. The generator plaintiffs can claim no co mparable injury. The injury the generator plaintiffs assert is, rathe r, comparable to GM truck purchasers claiming a Commerce Clause injury bec ause they must pay more for vehicles because of GM's increased energy costs

. Likewise, the comparable plaintiff in Bacchus Imports would be consumers disgruntled because they were required to pay more for imported liquor. 8

In our view, the generator plaintiffs' claims fall within the third-party standin g doct rine described in Warth . In Warth , a number of individuals and organization s challe ngedcity zoning ordinances that allegedly barred private development of lo w income housi ng. One group of plaintiffs were city residents who alleged that the y suffered "economic injury consequent to [the city's] allegedly discriminatory an d exclus ionary zoning practices." Warth , 422 U.S. at 508. The Court held that thes e plaintiffs' claims fell "squarely within the prudential standing rule that normally bars-14-

litigant s from asserting the rights or legal interests of others in order to obtain relie f from injury to themselves." Id. at 509.
The injury claimed by the generator plaintiffs is of the same sort: higher garbage bills due to the passed-on costs incurred by the haulers under the Ordinance. Th e generator plaintiffs' alleged injury is the economic consequence of the County' s restr iction of where haulers may deliver waste. The generator plaintiffs cannot claim any personal right u nder the Commerce Clause to lower garbage bills. Any relief due the generator plaintiffs turns on the rights of the haulers to be free of the Ordinance's designation requirements.

We hold, therefore, that the generator plaintiffs are seeking to assert th e consti tutional rights of the hauler plaintiffs, and the third-party standing doctrin e applies. We d o not see any reason to relax this prudential bar in this case. While the haulers and generators have an "incidental congruity of interest" in seeing th e Ordinanc e invalidated, they have no special relationship that warrants allowing th e genera tors to assert the rights of the haulers. Id. at 510. The generators' status a s purchasers of disposal services does not constitute such a relationship. If such wer e the case, then end-line consumers coul d always assert the Commerce Clause claims of the busin esses from whom they purchase goods or services. Furthermore, there is no indication that allowing standing to th e generators "is necessary to insure protection of the rights asserted." Id. That the hauler plaintiffs brought suit more than a year before the g enerator plaintiffs (and indeed share the same counsel) and have aggressivel y litigated their own claims demonstrates that they are fully capable of asser ting their own rights.
We also conclude that the generator plaintiffs lack standing because they are not within the "zone of interests" of the Commerce Clause. The zone of interests doctrine requires that "'the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional-15-

guarantee in question.'" Bennett , 117 S. Ct. at 1161 (quoting Camp , 397 U.S. at 153). The Nin th Circuit recently held that individual waste generators lacked standing t o bring a Commerce Clause challenge to a county ordinance that required residents t o either cont ract with a designated trash hauler or to dispose of waste at certai n d e signated facilities. Individuals for Responsible Gov't, Inc. v. Washoe County , 110 F.3d 699, 703-04 (9th Cir. 1997). Th e court in Washoe County held that the plaintiffs satisfied the constitutional minimal standing requirements, but that their asserted injury, having t o pay for unwanted garbage services, was "not even marginally related to the purposes underlying the dormant Commerce Clause." Id. at 703.
Although the Washoe C ounty ordinance differed somewhat from the regulation at issue in this case, the generator plaintiffs here are asserting a similar interest. W e agre e with the Ninth Circuit that this interest is not one protected by the Commerc e Clause. The Commerce Clause is intended to prevent economic protectionism an d retaliatio n

between states and to allow markets to flourish across state borders, thu s prohibiting "laws that would excite . . . jealousies and retaliatory measures" between stat es. Carbone , 511 U.S. at 390. The harm alleged by the generator plaintiffs i s
narrow , personal, and strictly local: residents of Hennepin County have to pa y
re latively high bills for the disposal of their garbage. It is unlikely that South Dakota or Iowa are much concerned with what these plaintiffs pay for trash service, much less that high garbage bills in Minneapolis are likely to cause "jealousies and retaliatory measures" in other states. Local consumers shouldering the end- line burden of a purely local regulation are not within the zone of interests of the Commerce Clause. Again, if the ult imate cost of economic regulation to consumers were within the zone o f interests of the Commerce Clause, then every consumer could properly challenge such regulations. We decline to expand the scope of claims cognizable u nder the Commerce Clause this far.
Because we find that the plaintiff waste gen erators in the Robinson Rubber case are asserting the third-par

ty rights of haulers to be free of regulation and because theirWe are mindful that grantingstanding to consumers bearing passed-on costs in 9 Commerce Clause cases could have serious repercussions on state and loca l governments' ability to enact economic regulations. This is because they would risk enormous liability if su ch regulation is later invalidated. Here, for example, the waste generator plaintiffs' damage claims exceed $100 million. Especially in the curren t contex t, where the limits of local authority to regulate waste streams are still unclear, such risk present s a heavy burden to good faith efforts to enact valid laws intended to further important local goals. Plaintiffs also sought to enjoin the application of County Ordinance 15, which 10 imp osed a solid waste management fee on all waste generators in the County. Th e district court concluded that Ordinance 15 was a tax f or purposes of the Tax Injunction Act, and dismissed that portion of the complaint for lack o f jurisdiction. Plaintiffs have not appealed this order.
-16- alleged injury is not within the zone of interests protected by th e Commerce Clause, we hold that prudential considerations bar them from maintaining this action. 9

B. Tax Injunction Act
The Tax Injunction Act, 28 U.S.C. § 1341, provides that the federal courts "shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the c ourts of such State." The di strict court correctly rejected the County's contention that the Act rendered the court without jurisdiction to enjoin enforcement of Ordinance 12. 10
Whether Ordinance 12 constitutes a "tax" for purposes of the Tax Injunction Act is a question of federal law, and we need not defer to the County's characterization of the Ordinance. Wright v. McClain , 835 F.2d 143, 144 (6th Cir. 1987). The Ordinance obviously raises revenue by way of the tipping fees charged by the HERC f acility. This does no t, however, render the Ordinance a tax. The Ordinance's primary purpose i s clearly regulatory, rather than revenue-raising. See Government Suppliers-17-

Consolidating Serv. v. B ayh , 975 F.2d 1267, 1271 n.2 (7th Cir. 1992) (fees generated by a flow control ordinance do not come within the Tax Injunction Act).

Furthermore, the plaintiffs do not question the County's authority to levy taxes. Rather, the y challenge the County's regulation of their ability to deliver waste to th e facilities of their choice. While the relief they seek may wel l affect the revenue that the County raises from the designated facilities, this secondary economic effect would not requir e the court to enjoin, suspend, or restrain any tax collection. Cf. Harvey & H a rvey v. Delaware Solid Waste Auth. , 600 F. Supp. 1369, 1375-76 (D. Del. 1985). Finally, we note that the County's argument would apply to the similar challenge to a flow con trol ordinance in Carbone , yet the Supreme Court in that case did not eve n qu estion federal jurisdiction in striking the ordinance. We conclude that the Ta x Injunction Act does not bar federal jurisdiction in this matter.

C. Commerce Clause

The Commerce Clause of the United States Constitution grants Congress th e power "[t]o regulate C ommerce . . . among the several States." U.S. Const. art I, § 8, cl. 3. The Supreme Court has long held that this grant of power to Congress contains negative implicat

ions that restrict states' power to regulate interstate commerce. CTS Co rp. v. Dynamics Corp. of America , 481 U.S. 69, 87 (1987). Under this "dorman t Commerce Clause" jurisprudence, state laws that regulate commerce are subject to a two-step inquiry.

First, if a state law discriminates against interstate commerce "in favor of local busines s or investment," it 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 , 511 U.S. at 392. "Discrimination" for purposes of the Commerce Clause means " differential treatment of in-state and out-ofstate economic interests that benefits the former and burdens the latter." Oregon Waste-18-

Sys. Inc. v. Department of Envtl. Quality , 511 U.S. 93, 99 (1994); see also Cotto Waxo Co. v. Willi ams , 46 F.3d 790, 794 (8th Cir. 1995). A state law may discriminat e against interstate commerce on i ts face, in its purpose, or in its effect. SDDS, Inc. , 47 F.3d at 267.
Second, if a state law does not overtly discrim inate against interstate commerce, it may nonetheless be c ontrary to the Commerce Clause if it unduly burdens interstate

commerce. Id. at 268. A non-discriminatory state law, however, is subject to a less rigorous ba lancing test. Such a law "will be upheld unless the burden imposed o n

. . . commerce is clearly excessive in relation to the putative local benefits." Pike v

. Bruce Church, Inc. , 397 U.S. 137, 142 (1970).

Inthis case, the district court held that Ordinance 12, as written, discriminates against interstate commerce. In addition, the court held that the County's suspension of enforcement against haulers taking waste to out-of-state facilities did not save th e Ordinance. Rather, the court found that O rdinance 12 "as enforced" after the County's suspension of enforcement ag ainst waste bound out-of-state still discriminated against in terstate commerce. The district court thus found both aspects of the Ordinanc e invalid per se, and did not reach the Pike balancing test.

We a gree with the district court that the County's partial suspension o f enforcement puts this case "in a somewhat unusual posture." Oehrleins , 922 F. Supp. at 1403. We first note that we know of no auth ority for the proposition that a law that is facially invalid under the Commerce Clause may nonetheless be upheld "a s enforced." Accordingly, we find the analy tical framework used by the parties to argue this case somewhat awkward. The validity of the County's limited enforcement of the Ordina nce to waste destined for in-state disposal is an important question, however , since plaintiffs seek section 1983 damages for that enforcement.The current definition is as follows: 11 "Designated Waste"
A. is mixed municipal solid waste generated in the County an d destinedfor in-state disposal, excluding hazardous waste , infectious waste, and undesignatable waste; and

B. is mixed municipal solid waste generated in the County an d des tinedfor out-of-state disposal excluding hazardous waste , infectious waste, and undesignatable waste. Reprinted in

A ppellant's App. at 141. The 1993 amendment of the definition appears to hav e been prompted by concerns that, while designation may have bee n constitut ional with regard to waste staying in Minnesota, enforcement against wast e bound for delivery out-of-state would be found impermissible. See Memorandum from Pat Diamond , Deputy County Attorney, reprinted inAppellees' App. at 63. Th e bifurc ated definition was, in fact, intended to facilitate severability in the case of a n adverse court ruling on interstate designation. Id.
-19- As for the vali dity of the Ordinance in its current form, however, we can easily distinguish between interstate and intrastate enforcement. In the 1993 resolution that directed the suspension of enforcement, the C ounty also amended the Ordinance itself. Tha t amendment bifurcated the Ordinance's definition of "designated waste," so that "d esignatedwaste" is waste bound for disposal within the state andwaste bound fo r deliver yout-of-state. The new definition provides an obvious way to separatel y 11 consider w hether purely intrastate enforcement of the Ordinance is different from full

en forcement. That is, if intrastate enforcement is permissible under the Commerc e Clause but interstate enforcement is not, we may sever the offending half of th e definition of

"designated waste." We therefore separately consider these two aspects of Ordinance 12.-20-

1. Restrictions on Waste Destined for Out-of-State Shipment.

Access to the market for waste processing, including this type of "flow control" ord inance, implicates the dormant Commerce Clause. Carbone , 511 U.S. at 389 ; Waste Sys. Corp. , 985 F.2d at 1386. In Carbone , the Supreme Court considered a local flow co ntrol ordinance that required all local waste to be processed at a singl e designate dfacility. The Court held that because the ordinance effectively prohibite d export of waste beyond state lines without the initial local processing, it discriminated against i nterstate commerce. This was so even though the ordinance restricted waste transfe r within the state as well. Carbone 511 U.S. at 390-91. See also Waste Sys

. Corp. , 985 F.2d at 1386-89 (holdingthat a similar designation ordinance applied to all county wa ste violated the Commerce Clause). Carbone and Waste Systems squarely foreclo se the County's argument that Ordinance 12 is "even-handed" an d nondiscriminatory because it limits interstate export no more than intrastate transfer

. To the exte nt that Ordinance 12 prohibits export of waste across state lines, it i s irrelevant that the Ordinance also restricts garbage movement within the state.

Th e County argues that Ordinance 12 is different from the flow contro l ord inances in the above cases. Carbone involved a local ordinance that, withou t exception, directed all local waste to a single in-town tran sfer station. 511 U.S. at 387. The ordi nances invalidated in Waste Systems also mandated deposit in a county composting facility, and provided for limited exclusions upon petition. However, one of the criteria for exclusion was that any exclusion could not undermine the financial viability of the county facility. Waste Sys. Corp. , 985 F.2d at 1386. In light of this, the court determined that the exclusion promise was "illusory" and that the ordinances "in practice, entirely forbid transport of waste out of the Counties." Id. at 1387.
Ordinance 12, however, exempts all pre-1985 facilities f rom designation. It also provides for the designation of additional facilities and for an exclusion process

. Furthermore, there is evidence that the County has granted some exclusions to non--21-

design ated facilities. It is more difficult to simply label the exclusion process here as "illusory." Relying on a Third Circuit case, the County argues that because exclusions are granted based on neutral, non-discriminatory criteria, the Ordinance is even-handed with respect to interstate commerce. See Harvey & Ha rvey, Inc. v. County of Chester , 68 F.3d 788, 802 (3d Cir. 199 5) (stating in dicta that open bidding and a fair selection process may not violate Commerce Clause, even if it results in exclusive designation of an in-state facility).

We ne ed not decide the validity of this premise, however, because even if w e
were to agree with the Harvey dicta it would not save Ordinance 12 from rigorou s scrutin y. The initial designation here simply was not "open." Ordinance 12 wa s enacted, in part, specifically to insure an adequate waste supply for a certain designated facility: the HERC incinerator. Indee d, the HERC plant was the only disposal facility the Ordinance initially designated, and the interim transfer stations were to accep t designatedwaste for ultimate disposal at HERC. The possibility of an out-of-stat e p rocessor obtaining designation or getting a later exclusion simply does not alter the initial immediate p urpose and effect of the Ordinance, which was to grant an absolute preference to a particular local interest at the expense of all others. The district court right lyconcluded that, as applied to waste destined for transport outside Minnesota , Ordinance 12 discriminates against interst ate commerce and is thus subject to rigorous scrutiny. In light of Carbone and Waste Systems we hold that the interstat e enforcement of the Ordinance cannot survive such scrutiny and violates the Commerce Clause.
2. Ordinance 12 as Applied Intrastate

Al thoughthe Commerce Clause prevents the County from restricting the flo w of waste out-of-state, we must still consider whether the County may enforce flo w control restrictions to waste that stays within Minnesota. The district court held that-22-

the Ordinance "as enforced" discriminates against interstate commerce and is thu s invalid per se.

It is undisputed that the County has completely stopped penalizing haulers for

ca rting waste to out-of-state facilities. We cannot agree with the plaintiffs, however, that the remaining intrasta

te restriction on the flow of waste also discriminates against interstate co mmerce. Although the County maintains a monopoly on waste that stays in-state , this does not amount to discrimination because local processors, even th e desi gnatedfacilities, are not being treated preferentially with respect to out-of-stat e facilities. Here, there is no "differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter." Oregon Waste Sys. , 511 U.S. at 99. The only preference granted to the designated facilities is with respect to other local operators. This may cre ate a monopoly at the local level, but as long as waste is allowe dto flow freely in or out of the state, this does not constitute discriminatio n against interstate commerce.

Indeed, Ordinance 12 as enforced would seem to confer an economic benefit , not burden, to out-of-state interests. Out-of-sta te landfills or other processing facilities are

no t barred from receiving Hennepin County waste. Furthermore, out-of-stat e process ors are apparently able to charge tipping fees substantially less than thos e charged by the County. The Oehr leins plaintiffs stated in their pleadings, and again in th eir brief on appeal, that haulers in fact began to deliver waste to out-of-stat e processors as a response to the County 's suspension of interstate enforcement in 1993. En couraging delivery of County waste out-of-state imposes a burden only upon local concerns--inclu ding designated facilities--to the benefit of out-of-state facilities. This may be eco nomically distorting, but purely local monopolies or market controls that i n ure to the benefit of out-of-state concerns simply do not constitute "discrimination" under the Commerce Clause.In trying to show a discriminatory purpose, the plaintiffs put much weight on 12 a memorandum from a deputy county attorney con cerning the 1993 amendments to the ordinance and susp ension of interstate enforcement. In this memorandum, the deputy county attorney states that the amendments and "a letter suspending the enforcement of design ated waste destined for disposal outside the state of Minnesota, would pu t haulers on no tice that it would not be prudent to enter into long-term contracts fo r waste disposal outside of the state at this time." Reprinted inAppellees' App. at 63. Even i f we were to impute the deputy county attorney's opinion to the County, we do
-23- The plaintiffs argue, and the district court agreed, that intrastate flow control is nonethele ss discriminatory. Relying on Carbone and Waste Systems , the plaintiff s argu e that the Ordinance is discriminatory because it is solely a kind of "economi c protectionism" that the Commerce Clause is intended to prevent. But as Carbone itself explains, "the central rationa le for the rule against discrimination is to prohibit state or municipa l laws whose object is local economic protectionism, laws that would excite those j ealousies and retaliatory measures the Constitution was designed to prevent. " 511 U.S. at 390. A purely intrastate flow control regulation may well b e "protectioni st," but it is only so at the local level. When local facilities ar e competitively disadvantaged by a regulation that restricts their access to the marke t while out-of-state entities bear no such burden , there is little risk of inciting "jealousies and retaliatory measures" from neighboring states.

The district court also concluded that Ordinance 12 discriminates in effect b y impeding long-term contracts with out-of-state processors be cause of the threat that the County m

ight, in the future, resume full enforcement, and that this was indeed th e County's purpose. We cannot agree. The plaintiffs have produce d no evidence that the Ordinance has had such an effect, nor is there any evidence that the County intended the Ordinance to have such an effec t. It is beyond dispute that the 1993 suspension of interstate enforcement allowed waste to flow freely to out-of-state processors, whil e working a comparative dis advantage to local entities. This hardly shows a purpose to discriminate against out-of-state concerns. 12not

find this language as sinister as plaintiffs suggest. In our view, the memorandum merely reflects that, given the uncertainty of the l aw at the time, neither the County nor th e waste haulers could anticipate what aspects of Ordinance 12 might ultimately b e fo und valid or invalid. (At the time, the Supreme Court's decision in Carbone wa s pending. Indeed, the letter the County sent to haulers notifying them of the suspension of enforcement makes express reference to the uncertainty of the legal validity of flow control ordinances, and to the pending Carbone decision. Appellant's App. at 156.) Further more, even were we to credit the plaintiffs' assertion that the possibility o f continuedfull enforcement of the Ordinance impedes out-of-state contracting, thi s thr eatsimply evaporates given our holding that such enforcement would violate th e Commerce Clause.
-24- The distri ct court also reasoned that the Ordinance "as enforced" discriminates in effect by denying out-of-state concerns the ability to compete for local waste. T o use the district court's example, "[a]n out-of-state concern which built a state-of-the-art processing facility in the middle of Hennepin County could not lawfully receive an y waste fromthe County." Oehrleins , 922 F. Supp. at 1404. Thus, the district court concluded, Ordinance 12 discriminates against interstate commerce by prohibiting outof-state entities full access to the local market in waste processing.
In reaching t

his conclusion, the district court relied on Carbone and Dean Milk Co. v. M adison , 340 U.S. 349 (1951), for the proposition that Ordinance 1 2 discriminates by prohibiting the "importation of waste processing services." Oehrleins , 922 F. Supp. at 1404. But the ordinance in Carbone subjected all waste, includin g waste bound out-of-state, to the local pro cessing requirement. Out-of-state processors

w e re thus "deprive[d] . . . of access to a local market." 511 U.S. at 389. Such is not the case h ere. Dean Milk invalidated a county ordinance that prohibited the sale i n Madison, Wisconsin, of milk pas teurized outside of city boundaries. 340 U.S. at 350. Milk pasteurized at facilities in different state s was thus completely cut out of the local market. Again, Ordinance 12 has no such effect. Quite to the contrary, it is undisputed that after the 1993 "s uspension," out-of-state processors were permitted to and did, in fact, participate in the market for County waste by receiving waste.-25-It

would be a different matter, of course, if the state were to treat a company 13 incorpor ated or principally located in another state differently from Minnesot a companies on that basis.
-26- This "market access" theory also assumes that an out-of-state concern tha t permanently locates an operation within the state is still an "o ut-of-state" entity that can complain that a law that even-handedly restricts a local market is "dis criminatory." The plai ntiffs offer no authority for this position. A Delaware corporation doing business in Minneso ta could not argue that it is discriminated against by Minnesota laws tha t apply equ ally to all businesses operating in the state. South Dakota companies ma y chose not to locate operat

ions in Minnesota because of comparatively high state taxes that apply to all businesses, but this is not discrimination under t he Commerce Clause. 13 Like an y other local market regulation, Ordinance 12 may or may not encourag e companies from doing b usiness in the state. But while this may be a relevant concern in forming economic policies, it is simply not the proper inquiry for considerin g discrimi nationunder the Commerce Clause. Cf. CTS Corp. , 481 U.S. at 93-9 4 (quoting Exxon Corp. v. Gover nor of Maryland , 437 U.S. 117, 127 (1978) ("We have rej ected the 'notion that the Commerce Clause protects the particular structure o r methods of op eration in a . . . market."). Plaintiffs' analysis would render virtually all local economic regulations "discrimi natory" and subject them to "per se" invalidation. This wo uld vastly expand the implications of the dormant Commerce Clause, and we decline to follow such a course. The plaintiffs argue that "interstate commerce" means more than "goods crossing state lines." This proposition is undoubtedly correct: even a non-discriminatory law may uncon stitutionally burden interstate commerce. But if so, this is because tha t regulatio n

fails the less rigorous balancing test of Pike , not because it is subject t o rigor ous scrutiny and virtually "per se invalidation." Restrictions on the ability o f

co mpanies, regardless of state of origin, to process Hennepin County waste i n Minnesota

may be relevant to the Commerce Clause issue; but if so, this goes not toAccordingly, the plaintiffs' argument that out-of-state companies are effectively 14 prevented from operating waste -to-energy processing plants may be relevant to a Pike analysi s, provided that there is evidence that an interest in developing such facilitie s actually exists and is frustrated by the Ordinance. We reject plaintiffs' assertion that the County's goal in enacting Ordinance 12 15 must be strictly distinguished from the overall interests served by the designation plan, and that the sole goal

of Ordinance 12 is to ensure the financial viability of the HERC

-27- a fin ding of "discrimination" but to whether the effect of the restriction is t o impermissibly burden interstat e commerce. As we have stated before, "[n]egatively

14 aff ecting interstate commerce is not the same as discriminating against interstat e commerce." Cotto Waxo , 46 F.3d at 794. In this case, the district court conflate d "dis crimination" with "effect on commerce" and applied rigorous scrutiny whe n balancing is called for.

We hold, therefore, that i ntrastate designation as currently enforced pursuant to Ordina nce 12 does not discriminate against interstate commerce, and is thus contrary to the Co mmerce Clause only if it fails the Pike balancing test. Under Pike , thos e portio ns of Ordinance 12 that apply to waste destined for in-state disposal are onl y unconstitutional if "the burden imposed on . . . commerce is clearly excessi ve in relation to the putativ e local benefits." Pike , 397 U.S. at 142. Because the district cour t incorrectly held that the intrastate application of Ordinance 12 was per s e invalid, rather thanapplying the appropriate balancing test, we reverse and remand. We remand to the district court for consideration of whether the burden on interstate c ommerce clearly exceeds the local benefits. In conducting this revie w, the district court should consider all of the interests advanced by the Ordinance in the entire context of the County' s master plan and designation p lan. These include those anticipated benefits outlined in the designation plan, i ncluding landfill abatement, County-wide coordination of waste management, the pro duction of energy, resource recovery, and the goals of the Waste Management Act that the Ordinance was intended to advance. 15facility. The Ordin ance's preamble and the County resolution adopting the Ordinance

make explicit reference to the environmental interests th e Ordinance seeks to advance; the Cou nty's designation plan likewise summarizes in great detail various expecte d ben efits of designation. While we may legitimately balance the County's purporte d interests against the Ordina nce's burden on interstate commerce, we have no authority to instruct the County that those stated interests are not really interests. Waste Sys. Corp. , 985 F.2d 1381, is not to the contrary. In Waste Systems , the court found that the ordinanc e at issue facially discriminated against interstate commerce, and that the
coun ty's overarching environmental goals could not offset that discrimination. Id. a t 1388. In this case, Ordinance 12 is plainly part of a waste management framewor k developed o ver several years, and is inextricably bound up with the County's wast e management

master plan and designation plan developed pursuant to the Wast e Management Act. To lift out of context a statement from Waste Systems and argu e tha t "even if the [County] acted out of legitimate environmental concern whe n construct ing the [HERC facility], the purpose of the [facility] is not the same as th e purpose of [Ordinance 12]" is to ignore reality. Id.
-28- III. CONCLUSION

The cer tified class of consumers of waste disposal services represented b y Robinson Rubber Products lacks standing in this Commerce Clause action. In regard to the remaining hauler and processor plaintiffs, we conclude that those provisions of Ord inance 12 that prevent the delivery of Hennepin County solid waste to facilitie s outside of the state discriminate against interstate commerce and so violate th e Commerc e Clause of the United States Constitution. Those provisions of th e Ordi nance, however, that restrict intrastate delivery of waste to non-designate d facilities do not discriminate against interstate commerce. We remand to the district court for a determination whether the putative local benefits of the intrastateAppellees' motion to strike the briefs of the State of Minnesota as ami cus curiae 16 is denied.
-29- enforceme nt

of Ordinance 12 are clearly outweighed by the burdens on interstat e commerce, and for further proceedings consistent with this opinion. 16
A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.