Waste Management Holdings, Inc. v. Gilmore

Filed: June 11, 2001

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 00-1185
(CA-99-425, CA-99-443)

Waste Management Holdings, Inc., et al.,

Plaintiffs - Appellees,

versus

James S. Gilmore, III, etc., et al.,

Defendants - Appellants.

O R D E R

The court amends its opinion filed June 4, 2001, as follows:

On page 4, first full paragraph, line 7, and page 15, footnote

7, line 4 -- the name “John Woodley” is corrected to read “John

Paul Woodley.”

On page 48, first paragraph, line 3 -- “Id.” is corrected to

read “id.”

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WASTE MANAGEMENT HOLDINGS,
INCORPORATED; HALE INTERMODAL
MARINE COMPANY; WEANACK LAND
LIMITED PARTNERS; CHARLES CITY
COUNTY; BRUNSWICK WASTE
MANAGEMENT FACILITY,
Plaintiffs-Appellees,

v.

JAMES S. GILMORE, III, in his official
capacity as Governor of the
Commonwealth of Virginia; JOHN
PAUL WOODLEY, JR., in his official
No. 00-1185
capacity as Secretary of Natural
Resources; DENNIS TREACY, JR., in
his official capacity as Director of
the Virginia Department of
Environmental Quality,
Defendants-Appellants.

GLEN BESA; CAMPAIGN VIRGINIA;
JOHN H. HAGER, Honorable; EMILY
COURIC, Senator; MARGARET
WHIPPLE, Senator; BRUCE JAMERSON;
MARK A. MINER; LILA YOUNG,
Movants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-99-425, CA-99-443)

Argued: December 7, 2000

Decided: June 4, 2001
Before WIDENER and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, vacated in part and remanded by published opinion.
Senior Judge Hamilton wrote the opinion. Judge Widener wrote a
concurring opinion (specifying that he concurs in all parts of the
court's opinion except Part IV.A, but concurs in the result that Part
IV.A obtains). Judge King wrote an opinion concurring in part and
dissenting in part.

_________________________________________________________________

COUNSEL

ARGUED: Stewart Todd Leeth, Assistant Attorney General, Rich-
mond, Virginia, for Appellants. Evan Mark Tager, MAYER,
BROWN & PLATT, Washington, D.C.; Timothy George Hayes,
HUNTON & WILLIAMS, Richmond, Virginia, for Appellees. ON
BRIEF: Mark L. Earley, Attorney General of Virginia, William H.
Hurd, Solicitor General, Roger L. Chaffe, Senior Assistant Attorney
General, Ellen F. Brown, Assistant Attorney General, William E.
Thro, Assistant Attorney General, Richmond, Virginia, for Appel-
lants. Kenneth S. Geller, Miriam R. Nemetz, MAYER, BROWN &
PLATT, Washington, D.C.; D. Alan Rudlin, Shawn A. Copeland,
HUNTON & WILLIAMS, Richmond, Virginia; Jason S. Thomas,
HUNTON & WILLIAMS, Raleigh, North Carolina; B. Randolph
Boyd, RANDOLPH, BOYD, CHERRY & VAUGHAN, Richmond,
Virginia, for Appellees.

_________________________________________________________________

OPINION

HAMILTON, Senior Circuit Judge:

In March and April 1999, the Commonwealth of Virginia's (Vir-
ginia) General Assembly, its legislative body, enacted and the Gover-
nor of Virginia signed into law five statutory provisions, which,
collectively, cap the amount of municipal solid waste (MSW) that

2
may be accepted by landfills located in Virginia and restrict the use
of barges and trucks to transport such waste in Virginia. See Va. Code
Ann. §§ 10.1-1408.1(Q); 10.1-1408.3; 10.1-1454.1(A); 10.1-1454.2;
10.1-1454.3 (Michie Supp. 2000). The first statutory provision (the
Cap Provision) caps the amount of waste that any landfill located in
Virginia may accept.1
1 Va. Code Ann. § 10.1-1408.3. The second stat-
utory provision (the Stacking Provision) requires Virginia's Waste
Management Board (the Board) to promulgate regulations governing
the transport of MSW by ship, barge, or other vessel, as well as the
loading and unloading of such waste. Va. Code Ann. § 10.1-
1454.1(A). This statutory provision requires that such regulations,
which have yet to be issued, prohibit stacking containerized waste on
a barge more than two containers high. Id. The third statutory provi-
sion (the Three Rivers' Ban), which pertains to barges, prohibits "the
commercial transport of hazardous or nonhazardous solid waste . . .
by ship, barge or other vessel upon the navigable waters of the Rappa-
hanock, James and York Rivers, to the fullest extent consistent with
limitations posed by the Constitution of the United States." Va. Code
_________________________________________________________________

1 Under the Cap Provision, the amount of MSW a landfill located in
Virginia may accept is capped at either: (1) 2,000 tons per day or (2) the
average amount accepted by the landfill in 1998, whichever is greater.
Va. Code Ann. § 10.1-1408.3. The Cap Provision also authorizes Virgin-
ia's Waste Management Board to grant individual requests for excep-
tions if, after considering "the potential human health, environmental,
transportation infrastructure, and transportation safety impacts and
needs," it determines that "(i) [an exception] protects present and future
human health and safety and the environment; (ii) there is a need for the
additional capacity; (iii) sufficient infrastructure will exist to safely han-
dle the waste flow; (iv) the increase is consistent with locality-imposed
or state-imposed daily disposal limits; (v) the public interest will be
served by [the increase]; and (vi) the additional capacity is consistent
with regional and local solid waste management plans developed pursu-
ant to § 10.1-1411." Id. (incorporating factors set out in amended version
of § 10.1-1409.1(D)). In addition to these factors, Virginia's Waste Man-
agement Board must also consider "other factors it deems appropriate to
protect the health, safety and welfare of the people of Virginia and Vir-
ginia's environmental and natural resources." Id. Virginia's Waste Man-
agement Board may not approve an exception from the cap "until a
public hearing on the proposed increase has been held in the locality
where the landfill requesting the increase is located." Id.

3
Ann. § 10.1-1454.2. The fourth statutory provision (the Trucking Cer-
tification Provision) prohibits landfill operators from accepting MSW
from a vehicle with four or more axles "unless the transporter of the
waste provides certification, in a form prescribed by the Board, that
the waste is free of substances not authorized for acceptance at the
facility." Va. Code Ann. § 10.1-1408.1(Q). Finally, the fifth statutory
provision (the Four or More Axle Provision) requires the Board to
develop regulations governing the "commercial transport" of MSW
by "any tractor truck semitrailer combination with four or more
axles." Va. Code Ann. § 10.1-1454.3(A), (D). Among other things,
the Four or More Axle Provision provides that the new regulations
require, as a condition of carrying MSW on Virginia roads, the own-
ers of such trucks to make financial assurances that trucks having less
than four axles or carrying other cargo need not make. Id. § 10.1-
1454.3(A)(2).

Following the enactment of these statutory provisions, several Vir-
ginia landfill operators and transporters of MSW and one Virginia
county (collectively the Plaintiffs)22 commenced this 42 U.S.C. § 1983
action in the United States District Court for the Eastern District of
Virginia against the following individuals, in their official capacities:
(1) Virginia's Governor, James Gilmore; (2) Virginia's Secretary of
Natural Resources, John Paul Woodley; and (3) Virginia's Director of the
Department of Environmental Control, Dennis Treacy. 3 The Plain-
tiffs' action challenges the five Virginia statutory provisions on the
basis that they are violative of the dormant Commerce, Contract, and
_________________________________________________________________

2 The Plaintiffs are: (1) Waste Management Holdings, Inc. (Waste
Management), whose affiliates operate several large landfills in Virginia
that accept substantial quantities of MSW generated outside Virginia; (2)
Weanack Land Limited Partners (Weanack), which owns a transfer facil-
ity on the James River where containerized shipments of MSW are
offloaded from barges and onto tractor trailers; (3) Hale Intermodal
Marine Company (Hale), a barging company that transports, among
other things, containerized MSW; (4) Charles City County, which owns
property that it leases to Waste Management for use as a landfill; and (5)
Brunswick Waste Management Facility, L.L.C. (Brunswick), which
owns and operates a large landfill in Brunswick County, Virginia.

3 For ease of reference, we refer to these defendants collectively as "the
Defendants."

4
Equal Protection Clauses of the United States Constitution.4
4 The
action seeks declaratory and injunctive relief.

In a published decision dated February 2, 2000, the district court
held that the five Virginia statutory provisions at issue were violative
of the Constitution's dormant Commerce Clause, and that the Three
Rivers' Ban and the Stacking Provision were violative of the Consti-
tution's Supremacy Clause. Waste Management Holdings, Inc. v. Gil-
more (Waste Management Holdings III), 87 F. Supp.2d 536, 545
(E.D. Va. 2000). Before this court, on several fronts, the Defendants
challenge the propriety of this decision of the district court.55 For the
reasons stated below, we affirm in part, vacate in part, and remand for
further proceedings consistent with this opinion.

I.

MSW "generally includes solid waste generated by households,
commercial activities, institutions, and non-process waste from indus-
tries." (J.A. 249). The Virginia Department of Environmental Quality
(DEQ) reported that as of November 1998, there were seventy active
landfills in Virginia accepting MSW. Although the parties disagree
over how many of those landfills accept MSW from other states, the
record is clear that seven "regional" landfills account for ninety-seven
percent of the out-of-state waste deposited in Virginia. Approximately
sixty-one "local" landfills accept no out-of-state waste at all. DEQ
also reported that for the calendar year ending December 31, 1998,
New York, Maryland, North Carolina, and Washington, D.C.
exported the largest quantities of MSW into Virginia compared to
other states or jurisdictions.
_________________________________________________________________

4 Hale challenges two of the Virginia statutes, the Three Rivers' Ban
and the Stacking Provision, on the basis that these statutes are violative
of the Supremacy Clause of the United States Constitution.

5 In a published decision dated August 30, 1999, the district court dis-
missed the Contract Clause claims under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim. Waste Management Holdings, Inc.
v. Gilmore (Waste Management II), 64 F. Supp.2d 537, 548 (E.D. Va.
1999). On April 11, 2000, the district court sua sponte dismissed the
Plaintiffs' claims under the Equal Protection Clause. The propriety of
these decisions is not before the court.

5
The regional landfills, which are privately operated and have sub-
stantially greater disposal capacity than their local counterparts, have
been sited and constructed over the past decade in order to comply
with strict state and federal regulations. Pursuant to a "host agree-
ment" with the county in which it is located, each regional landfill
pays the host county a fee based upon the volume of waste (excluding
the host's waste) deposited at that location. These agreements also
require the regional landfills to perform certain services for their host
communities, such as providing free waste disposal and recycling ser-
vices and/or funding the closing of any local landfills which do not
meet state and federal regulations. The construction of these regional
landfills has required tens of millions of dollars in private investment,
and the landfills face high operation and maintenance costs in addi-
tion to the sizeable host fees.

To meet their revenue needs and remain economically viable, each
regional landfill relies heavily on the disposal of MSW generated out-
side Virginia. In fact, MSW generated outside Virginia comprises
seventy-five percent of the MSW accepted at the five regional land-
fills operated by Waste Management6 6 and almost one-hundred percent
of the MSW accepted at Brunswick's regional landfill.

Under its host agreements, Waste Management is permitted to dis-
pose of over 2,000 tons of MSW per day at all but one of its regional
landfills. Prior to enactment of the statutory provisions at issue, Waste
Management expected to exceed that level in 1999. Waste Manage-
ment further expected that three of its five regional landfills would
accept substantially more waste in 1999 than they had in 1998. The
Charles City County Landfill, for instance, accepted approximately
2,849 tons of MSW per day in 1999, compared to less than 2,000 tons
per day in 1998. Likewise, Brunswick accepted approximately 2,400
tons per day in 1998, and accepted more than 2,800 tons per day in
1999. Before the enactment of the statutory provisions at issue,
_________________________________________________________________

6 Waste Management operates the following regional landfills: the
Charles City County Landfill; the King George County Landfill and
Recycling Facility; the Maplewood Recycling and Waste Disposal Facil-
ity, located in Amelia County; the Middle Peninsula Landfill and Recy-
cling Center, located in Gloucester County; and the Atlantic Waste
Disposal Landfill in Sussex County.

6
Brunswick had expected to reach 5,000 tons per day by the end of the
year 2000. By contrast, not one of the sixty-one landfills located in
Virginia that accept only Virginia-generated MSW has ever accepted
more than 2,000 tons per day, and only one or two of those might ever
be expected to reach that level in the future.

For several decades, New York City has disposed of its residential
MSW at the Fresh Kills Landfill in Staten Island. In 1997, New York
Governor George Pataki and New York City Mayor Rudolph Giuliani
announced that the Fresh Kills Landfill would cease accepting waste
in December 2001. The New York City Department of Sanitation,
therefore, began to negotiate interim disposal contracts in order to
phase out its dependency on the Fresh Kills Landfill. Waste Manage-
ment has been awarded two of those contracts, and much of the MSW
handled under those two contracts has been deposited at its regional
landfills in Virginia. In March 1999, it bid on a third contract, which
also contemplates the disposal of New York-generated MSW in Vir-
ginia. More significantly, Waste Management has bid on, and is a pri-
mary contender for, a twenty-year contract to dispose of all or part of
12,000 tons of residential waste per day from Manhattan, Queens,
Brooklyn, and the Bronx. New York City's Department of Sanita-
tion's Request For Proposal expresses a preference that any waste
removed under this contract be transported by barge and/or rail, rather
than by truck.

Waste Management's response contemplates sending sixty percent
of the New York City residential MSW to Virginia landfills, particu-
larly the Charles City County Landfill. It also contemplates that most
of this waste will be containerized and transported by barge along the
James River for off-loading at the James River Facility. In addition
to the residential MSW covered by existing and pending contracts,
Waste Management also removes significant quantities of commercial
waste per day from New York City and surrounding communities.
Waste Management had transported a substantial portion of this
MSW to its regional landfills in Virginia by tractor trailer, but in 1998
began planning to transport much of the waste by barge. In further-
ance of this plan, it negotiated a contract with Hale, whereby Hale
would lease to Waste Management four barges for five years at a
fixed price, with an option to lease an additional two barges. Each

7
barge is capable of carrying 5,000 tons of MSW in specially con-
structed containers that can be stacked five high.

Hale and Waste Management expected that barging would com-
mence in March or April 1999, that Waste Management would trans-
port 2,500 to 3,000 tons of MSW per day from Brooklyn to the James
River Facility, and that this waste would then be unloaded and deliv-
ered to the Charles City County Landfill for disposal. Toward this
end, Waste Management has agreed to purchase 400 American
Bureau of Shipping-approved, double steel walled containers at a cost
of $10,000 per container. It has also invested more than $5,000,000
in improvements at the James River facility and has guaranteed pay-
ment on two cranes for off-loading containers that together are worth
more than $5,000,000. Only a small amount of MSW generated inside
Virginia is transported to Virginia landfills by water.

In June 1998, the DEQ issued a report (the 1998 DEQ Report) indi-
cating that, during the fourth quarter of 1997 alone, Virginia had
imported 788,000 tons of MSW. Around the same time, Waste Man-
agement's plans to significantly increase its importation of New York
City's MSW into Virginia began to attract greater notice. In July
1998, Virginia State Senator Bill Bolling, chief sponsor of the statu-
tory provisions at issue in this appeal, wrote to Virginia Attorney
General Mark Earley about the possibility of blocking those plans:

With the impending closure of the Fresh Kills Landfill in
New York, I am concerned that the pressure for additional
importation will increase even more in the next few years.
If it is legally possible to do so, I would like to introduce
legislation during the 1999 session of the General Assembly
that would place restrictions on such importations.

The legislation I am currently considering could take a num-
ber of forms. This legislation could seek to prohibit the
importation of out of state waste altogether. In the alterna-
tive, I may seek to limit such importations to those landfills
currently receiving out of state waste, and to levels reflec-
tive of their current importations. However, I do not want to
propose such legislation if it would be in violation of exist-
ing federal or state law.

8
(J.A. 576).

In August 1998, the Congressional Research Service issued a
report indicating that Virginia now ranked second only to Pennsylva-
nia as the nation's largest importer of MSW, taking in 2,800,000 tons
in 1997. Shortly thereafter, on September 30, 1998, Senator Bolling
announced his intention to introduce legislation aimed at out-of-state
waste importation when the General Assembly reconvened in January
1999. In support of his proposals, Senator Bolling highlighted the
Commonwealth's newly acquired ranking among waste-importing
states, Waste Management's recently announced contract to remove
2,400 tons of residential MSW per day from New York City, "[m]ost
if not all of [which] will be transported by barge on Virginia's water-
ways," and the impending closure of the Fresh Kills Landfill. (J.A.
601). "New York officials have made no secret of their intent to
export the 14,000 tons of garbage a day that are currently disposed of
in the Fresh Kills Landfill to other states. It appears as though the vast
majority of this garbage may be heading to Virginia as well," Senator
Bolling warned. Id.

Governor Gilmore also expressed concern about the increased flow
of MSW generated outside Virginia into landfills located in Virginia.
On September 29, 1998, he announced that he was dispatching his top
environmental officials to meet with their counterparts from other
states "to ensure that Virginia does not drown in a regional sea of gar-
bage." (J.A. 597). In November 1998, Governor Gilmore imposed a
moratorium on new landfill development and instructed Secretary
Woodley to recommend legislation to deal with the problem. Further-
more, in his January 13, 1999 State of the Commonwealth address,
Governor Gilmore proposed such legislation. Specifically referring to
Waste Management's intentions, he noted that "[j]ust two days ago,
a major company announced plans to import four thousand more tons
of New York City trash into Virginia per day." (J.A. 630). To combat
this increase, he announced that he would ask Virginia's General
Assembly to take the following steps: (1) to prohibit the use of barges
for transporting MSW on Virginia's waterways; (2) to impose new
permit requirements for landfills located in Virginia; (3) to cap the
amount of waste that may be deposited in Virginia landfills; and (4)
to increase inspections of waste being hauled by truck or other means.
And when New York City Mayor Giuliani suggested that Virginia

9
might have an obligation to accept New York City's MSW, Governor
Gilmore responded that "the home state of Washington, Jefferson, and
Madison has no intention o[f] becoming New York's dumping
grounds." (J.A. 635). Meanwhile, numerous Virginia lawmakers and
other state officials announced their support for Senator Bolling and
the Governor's efforts, frequently couching their positions in anti-out-
of-state MSW terms.

In March and April 1999, Virginia's General Assembly approved
and Governor Gilmore signed into law the five statutory provisions
at issue in this case. The present civil action followed. On June 30,
1999, in a published decision, the district court granted the Plaintiffs'
motion for a preliminary injunction against the Defendants' enforce-
ment of the Cap Provision, the Stacking Provision, and the Three Riv-
ers' Ban, pending resolution of the Plaintiffs' claims. Waste
Management Holdings, Inc. v. Gilmore (Waste Management I), 64 F.
Supp.2d 523 (E.D. Va. 1999). In granting the motion, the district
court held the Plaintiffs had made the necessary showing of irrepara-
ble harm and the balance of harms tipped in their favor. Id. at 537.
The district court further held that the Plaintiffs would almost cer-
tainly succeed on the merits. Id. According to the district court, "the
challenged provisions constitute `an integrated and interconnected
discriminatory program' whereby Virginia has `attempted to isolate
itself from a problem common to [the nation] by erecting a barrier
against the movement of interstate trade.'" Id. (quoting Environmen-
tal Tech. Council v. Sierra Club, 98 F.3d 774, 786 (4th Cir. 1996))
(alteration in original). "This," the district court held, "is precisely
what the Commerce Clause forbids." Waste Management I, 64 F.
Supp.2d at 537. The Defendants filed a notice of appeal and a motion
in our court for a stay of the preliminary injunction pending appeal.
We denied the motion, and the Defendants withdrew their appeal.

On August 24, 1999, the district court granted the Plaintiffs'
motion to strike the Defendants' asserted affirmative defense that
because New York City had allegedly taken affirmative steps to dis-
courage the disposal of New York City generated MSW within the
borders of the State of New York, the Plaintiffs' constitutional chal-
lenges were barred insofar as they arose from their interest in import-
ing solid waste from New York City. The Defendants next filed a
motion to dismiss for failure to state a claim upon which relief may

10
be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The
Defendants sought dismissal of the entirety of the Plaintiffs' com-
plaint on two bases: (1) that the Plaintiffs lacked standing to challenge
the disputed laws because Virginia's counties lacked authority (i.e.,
ultra vires) to enter into the landfill host agreements; and (2) that the
Plaintiffs' action is barred by the doctrine of sovereign immunity as
provided in the Eleventh Amendment. In addition, the Defendants
contended that each of the Plaintiffs' claims should be dismissed for
failure to state a claim on the merits. Finally, the Defendants con-
tended that Charles City County must be dismissed as a plaintiff
because it lacked standing to sue its creator.

On August 30, 1999, in a published decision, the district court dis-
missed the Contract Clause claims for failure to state a claim, but
denied the remainder of the Defendants' Rule 12(b)(6) motion. Waste
Management Holdings, Inc. v. Gilmore (Waste Management II), 64 F.
Supp.2d 537, 548 (E.D. Va. 1999). The district court declined to
address the issue of whether Charles City County should be dismissed
as a plaintiff based on its (the district court's) belief that each of the
other plaintiffs had standing to raise the claims alleged. Id. at 548.

Following the close of discovery, the Plaintiffs filed a motion for
summary judgment with respect to their dormant Commerce Clause
and Supremacy Clause claims. The Defendants filed a cross-motion
for partial summary judgment with respect to the constitutionality of
the Cap Provision. On February 2, 2000, again in a published deci-
sion, the district court granted the Plaintiffs' motion for summary
judgment "in its entirety" and denied the Defendants' motion for par-
tial summary judgment. Waste Management Holdings III, 87 F.
Supp.2d 536, 545 (E.D. Va. 2000). Notably, the district court's mem-
orandum opinion did not separately address the constitutionality of
the Trucking Certification or the Four or More Axle Provision under
the dormant Commerce Clause or the Three Rivers' Ban or the Stack-
ing Provision under the Supremacy Clause. For reasons not relevant
to the present appeal, the district court later sua sponte dismissed the
Plaintiffs' claims under the Equal Protection Clause. The Defendants
noted a timely appeal.

II.

Under Federal Rule of Civil Procedure 56, a court should grant a
motion for summary judgment "if the pleadings, depositions, answers

11
to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c). In considering a motion for summary judgment,
the district court should review all of the evidence in the record.
Reeves v. Sanderson Plumbing Prods., Inc., 120 S. Ct. 2097, 2110
(2000). "In doing so, however, the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make cred-
ibility determinations or weigh the evidence." Id.

Thus, although the court should review the record as a
whole, it must disregard all evidence favorable to the mov-
ing party that the jury is not required to believe. That is, the
court should give credence to the evidence favoring the non-
movant as well as that "evidence supporting the moving
party that is uncontradicted and unimpeached, at least to the
extent that that evidence comes from disinterested wit-
nesses."

Id. (quoting 9A Charles Allan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2529, p. 299 (2d ed. 1995)). We review de
novo a district court's decision to grant a motion for summary judg-
ment. Myers v. Finkle, 950 F.2d 165, 167 (4th Cir. 1991).

III.

The Defendants first argue the doctrine of sovereign immunity, as
reflected in the Eleventh Amendment, bars the Plaintiffs' entire
action. We disagree.

The Eleventh Amendment provides that "[t]he Judicial power of
the United States shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign
State." U.S. Const. amend XI. The Supreme Court has recognized that
the doctrine of sovereign immunity under the Eleventh Amendment
extends beyond the literal text of the Eleventh Amendment to prevent
a state from being sued by one of its own citizens without its consent.
Alden v. Maine, 527 U.S. 706, 727-28 (1999). Accordingly, the pres-
ent suit by the Plaintiffs' is barred by the Eleventh Amendment unless

12
it falls within the exception recognized in Ex Parte Young, 209 U.S.
123 (1908), which permits certain suits in federal court against state
officers.

Under the Ex parte Young exception, a suit in federal court to
enjoin a state officer from enforcing an unconstitutional statute is not
a suit against the state for purposes of the Eleventh Amendment. Id.
at 159-60.

The theory of Ex parte Young is that because an unconstitu-
tional statute is void, it cannot cloak an official in the state's
sovereign immunity. Although the reasoning of Ex parte
Young has never been extended to claims for retrospective
relief, federal courts may grant prospective injunctive relief
against state officials to prevent ongoing violations of fed-
eral law.

CSX Transp. Inc. v. Board of Public Works, 138 F.3d 537, 540 (4th
Cir. 1998). The requirement that the violation of federal law be ongo-
ing is satisfied when a state officer's enforcement of an allegedly
unconstitutional state law is threatened, even if the threat is not yet
imminent. Summit Medical Assocs., P.C. v. Pryor , 180 F.3d 1326,
1338-1341 (11th Cir. 1999), cert. denied, 529 U.S. 1012 (2000).

Over three years ago, the Supreme Court held that the Ex parte
Young doctrine cannot be used to allow a federal court to hear what
is the functional equivalent of a quiet-title action against a state. Idaho
v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997). In the 1997
decision so holding, two of the Justices (Chief Justice Rehnquist and
Justice Kennedy) called for a fundamental reconceptualization of Ex
parte Young. If given the chance, they would limit the Ex parte Young
"exception" to cases in which no state forum was available to decide
whether federal law entitled the plaintiff to injunctive relief. Coeur
d'Alene, 521 U.S. at 270-280 (Kennedy, J., joined by Rehnquist,
C.J.). But this limitation of Ex parte Young was decisively rejected by
the other seven Justices. See 521 U.S. at 287-295 (O'Connor, J.,
joined by Scalia and Thomas, JJ., concurring); 521 U.S. at 297 (Sou-
ter, J., joined by Stevens, Ginsburg, and Breyer, JJ., dissenting).

The Defendants acknowledge that Justice Kennedy and Justice
Rehnquist's limiting view of the Ex parte Young doctrine in Coeur

13
d'Alene "has not yet been adopted by the full Court," (the Defendants'
Br. at 20). The Defendants nonetheless argue that we should apply it
in the case before us to conclude that Ex parte Young does not prevent
the Eleventh Amendment from barring the Plaintiffs' suit.

The fallacy of the Defendants' argument is obvious. Application of
the Ex parte Young doctrine has not been limited to cases where no
state forum is available to decide whether federal law entitles a plain-
tiff to injunctive relief. The case before us is precisely the type of case
to which the Ex parte Young doctrine applies. See, e.g., CSX Transp.
Inc. v. Board of Public Works, 138 F.3d 537, 541 (4th Cir. 1998) ("An
injunction against the future collection of the illegal taxes, even those
that already have been assessed, is prospective, and therefore avail-
able under the Ex parte Young doctrine."). Indeed, if a precedent of
the Supreme Court has direct application in a case, yet appears to rest
on reasons expressly rejected by a few or even a majority of the Jus-
tices in some other line of decisions, "the Court of Appeals should
follow the case which directly controls, leaving to[the Supreme]
Court the prerogative of overruling its own decisions." Rodriguez de
Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).

Next, the Defendants contend that even if the Eleventh Amendment
does not bar the Plaintiffs' action altogether, Governor Gilmore
should be dismissed as a party because he does not have direct
enforcement responsibility with respect to the statutory provisions at
issue. Below, both the Plaintiffs and the district court recognized that
Governor Gilmore lacks direct enforcement authority with respect to
the statutory provisions at issue. However, the Plaintiffs contended
and the district court agreed that Governor Gilmore was a proper
defendant because he actively and publicly defended the statutory
provisions at issue. Waste Management II, 64 F. Supp.2d at 543 n.6.
On appeal, the Plaintiffs argue in favor of keeping Governor Gilmore
in the suit on the same basis.

We agree with the Defendants that Governor Gilmore should be
dismissed as a party. Ex parte Young requires a "special relation"
between the state officer sued and the challenged statute to avoid the
Eleventh Amendment's bar. Ex parte Young, 209 U.S. at 157. "Gen-
eral authority to enforce the laws of the state is not sufficient to make
government officials the proper parties to litigation challenging the

14
law." Children's Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d
1412, 1416 (6th Cir. 1996) (internal quotation marks omitted). Thus,
"[t]he mere fact that a governor is under a general duty to enforce
state laws does not make him a proper defendant in every action
attacking the constitutionality of a state statute." Shell Oil Co. v. Noel,
608 F.2d 208, 211 (1st Cir. 1979).

Here, although Governor Gilmore is under a general duty to
enforce the laws of Virginia by virtue of his position as the top offi-
cial of the state's executive branch, he lacks a specific duty to enforce
the challenged statutes. Thus, we vacate the judgment against him and
remand with instructions that the district court dismiss him as a defen-
dant in this action. The fact that he has publicly endorsed and
defended the challenged statutes does not alter our analysis. The pur-
pose of allowing suit against state officials to enjoin their enforcement
of an unconstitutional statute is not aided by enjoining the actions of
a state official not directly involved in enforcing the subject statute.77

IV.

The Defendants next dispute the district court's conclusion that the
Plaintiffs possess standing to challenge the statutory provisions at
issue.

A.

According to the Defendants, Virginia counties have no authority
to operate or contract for the operation of a landfill for-profit that
accepts MSW generated outside Virginia. Accordingly, they contend,
the host agreements and the counties' actions with regard to accep-
tance of MSW generated outside Virginia are ultra vires. Since the
host agreements form the basis for this litigation, the Defendants rea-
son the Plaintiffs lack standing.
_________________________________________________________________

7 Given our holding that Governor Gilmore should be dismissed from
this action, from this point forward, when our opinion refers to "the
Defendants," we are referring to the two remaining defen-
dants/appellants, John Paul Woodley and Dennis Treacy. We note that Gover-
nor Gilmore joined them in all arguments they have presented on appeal.

15
As the Defendants correctly assert, Virginia law follows "Dillon's
Rule," which holds that a municipal corporation possesses only those
powers that are: (1) expressly granted by Virginia, (2) necessarily or
fairly implied in or incidental to the powers expressly granted, or (3)
"essential to the declared objects and purposes of the corporation, not
simply convenient but indispensable." Richmond v. Board of Supervi-
sors of Henrico County, 101 S.E.2d 641, 645 (Va. 1958) (internal
quotation marks omitted). "Any fair, reasonable doubt concerning the
existence of the power is resolved by the courts against the corpora-
tion and the power is denied." Id.

Here, Virginia Code § 15.2-932 grants "[a]ny locality" authority
"to contract with any person, whether profit or nonprofit, for garbage
and refuse pickup and disposal service in its locality and to enter into
contracts relating to waste disposal facilities which recover energy or
materials from garbage, trash and refuse." Va. Code Ann. § 15.2-932
(Michie 1997) (emphasis added). The Defendants argue that applying
Dillon's Rule to this statute results in the interpretation that Virginia
counties lack the power to contract for waste disposal that is not their
own waste.

We hold the district court properly rejected the Defendants' ultra
vires argument. A plain reading of the language of Virginia Code
§ 15.2-932, even in light of Dillon's Rule, grants every Virginia
county the authority to enter into the host agreements at issue. In this
regard, we rely upon the following language: "[a]ny locality" has the
authority "to contract with any person, whether profit or nonprofit, for
garbage and refuse pickup and disposal services in its locality . . . ."
Id. (emphasis added). Critically, this language does not limit the term
disposal to disposal of intra locality garbage or refuse pickup as the
Defendants suggest.

B.

According to the Defendants, Waste Management and Brunswick
lack standing to challenge the Cap Provision, because they did not
first apply for an increase in their tonnage allotment under the vari-
ance provision. The Defendants further argue that "it has even been
conceded that, if the regional landfills had applied for increased ton-

16
nage allotments, DEQ staff probably would have granted those
requests." (the Defendants' Br. at 29).

In support of this last argument, the Defendants cite the deposition
testimony of Lee Wilson. Lee Wilson is employed as a district man-
ager by USA Waste of Virginia, Inc., which is a subsidiary of Waste
Management. In his district manager position, Lee Wilson is responsi-
ble for the operations of three landfills located in Virginia and a num-
ber of transfer stations. Among other things, his duties include
developing and submitting bids to perform waste handling services
for customers, providing services to Waste Management's customers,
negotiating contracts with vendors, developing and implementing
business plans, and dealing with federal, state, and local regulatory
agencies and officials.

In deposition, Lee Wilson was asked to give his opinion "after
working here in the State of Virginia and knowing the regulators and
knowing your landfills, do you think they would grant you an exten-
sion?" Lee Wilson answered "[f]rom a regulatory standpoint, yes,
from a political standpoint, no." (J.A. 1371).

The Defendants' argument that Waste Management and Brunswick
lack standing to press their constitutional claims because they have
not already applied for an increase in their tonnage allotment is with-
out merit. If the cap is allowed to take effect, the maximum daily ton-
nage that Waste Management and Brunswick may receive at their
landfills will be dramatically reduced. The Cap Provision would pre-
vent Waste Management and Brunswick from bidding on contracts
while variance applications are pending. The prospect of such harm
confers standing. See Bob's Home Service, Inc. v. Warren County,
755 F.2d 625, 627 (8th Cir. 1985) (cap prohibiting expansion of a
waste disposal facility until granted a permit by the state presented
justiciable controversy because cap denied plaintiffs the right to
expand their operations in the future and implied an immediate injury,
i.e., a reduction in the value of plaintiffs' land and business). As for
the alleged concession by Waste Management that it would receive
a waiver in its tonnage allotment, a fair reading of Lee Wilson's testi-
mony reveals that he did not make such a concession. At most, Lee
Wilson identified competing forces with opposing views on the mat-
ter. In short, the Defendants' contention that Waste Management and

17
Brunswick lack standing to press their constitutional challenge to the
Cap Provision is without merit.

C.

Lastly with respect to standing, the Defendants argue the Plaintiffs
lack standing to challenge the Stacking Provision, the Three Rivers'
Ban, and the Four or More Axle Provision because respective saving
clauses provide that these provisions will be implemented only to the
extent allowed by federal law. Virginia Code Ann. § 10.1-1454.1
(barge regulations shall include stacking limits only "to the extent
allowable under federal law"); § 10.1-1454.2 (Three Rivers' Ban will
be enforced only to the "extent consistent with limitations imposed by
the Constitution of the United States"); § 10.1-1454.3 (regulations
under Four or More Axle Provision to be enforced only "to the extent
allowable under federal law"). We disagree.

The saving clauses upon which the Defendants rely do not prevent
the Plaintiffs from challenging the Stacking Provision, the Three Riv-
ers' Ban, or the Four or More Axle Provision, because the language
of those clauses is repugnant to the straightforward, limiting language
of the respective statutory provisions. Looney v. Commonwealth, 133
S.E. 753, 755 (Va. 1926) ("It is well settled that saving clauses which
are inconsistent with the body of an act are rejected and disregarded
as ineffective and void."); see also Sutherland on Statutory Construc-
tion, § 47:12 (same).

V.

We now turn to address the merits of the Plaintiffs' dormant Com-
merce Clause challenge to the statutory provisions at issue. The Com-
merce Clause provides that "[t]he Congress shall have Power . . . [t]o
regulate Commerce . . . among the several States . .. ." Art. I, § 8,
cl.3. Supreme Court precedent has long recognized that although
phrased as a grant of regulatory power to Congress, the Commerce
Clause inherently "denies the States the power unjustifiably to dis-
criminate against or burden the interstate flow of articles of com-
merce." Oregon Waste Sys. v. Department of Envtl. Quality, 511 U.S.
93, 98 (1994).

18
We apply the following two-tier approach in determining the con-
stitutionality of a statutory provision challenged under the dormant
Commerce Clause:

The first tier, a virtually per se rule of invalidity, applies
where a state law discriminates facially, in its practical
effect, or in its purpose. In order for a law to survive such
scrutiny, the state must prove that the discriminatory law is
demonstrably justified by a valid factor unrelated to eco-
nomic protectionism, and that there are no nondiscrimina-
tory alternatives adequate to preserve the local interests at
stake. . . .

The second tier applies if a statute regulates evenhandedly
and only indirectly affects interstate commerce. In that case,
the law is valid unless the burdens on commerce are clearly
excessive in relation to the putative local benefits.

Envtl. Tech. Council v. Sierra Club, 98 F.3d 774, 785 (4th Cir. 1996)
(internal quotation marks and citations omitted); see also Eastern
Kentucky Resources v. Fiscal Court of Magoffin County, 127 F.3d
532, 540 (6th Cir. 1997) ("A statute can discriminate against out-of-
state interests in three different ways: (a) facially, (b) purposefully, or
(c) in practical effect.").

A.

Here, the parties are in agreement that the statutory provisions at
issue are not facially discriminatory against MSW generated outside
Virginia. Thus, we must determine whether the statutory provisions
at issue would discriminate against MSW generated outside Virginia
in their practical effect or were enacted for the purpose of discriminat-
ing against MSW generated outside Virginia. Quite obviously, both
inquiries present questions of fact. If the answer to either question is
yes, we apply strict scrutiny analysis.

B.

1.

The Plaintiffs offer the following evidence in support of their con-
tention that the Cap Provision would discriminate against MSW gen-

19
erated outside Virginia in its practical effect. First, the Plaintiffs rely
upon a November 1998 report issued by DEQ, reporting that, with
respect to the MSW received by the seven large regional landfills in
Virginia, approximately ninety-seven percent is MSW generated out-
side Virginia, while only two of the sixty-three small local landfills
in Virginia accepted the remaining approximately three percent. Sec-
ond, the Plaintiffs rely upon a sworn statement by Lee Wilson that he
has personal knowledge that all seven of the large regional landfills
in Virginia, except for the Gloucester County landfill, which operates
under a local cap of 2,000 tons per day, have disposed of more than
2,000 tons per day of MSW in the past or can reasonably be expected
to do so in the future. By contrast, he further stated, none of the
approximately sixty-three landfills that receive principally Virginia-
generated MSW receive any amount of MSW close to 2,000 tons per
day of MSW. The Plaintiffs argue that from this evidence, a reason-
able juror could only find that if the Cap Provision is allowed to take
effect, it will impose a real and substantial burden on MSW generated
outside Virginia while barely, if at all, impacting MSW generated in
Virginia. Specifically, the burden is less access to permanent disposal.

In response, the Defendants argue that the Plaintiffs' evidence is
legally insufficient because Lee Wilson did not identify a basis for his
testimony and provided no reason to believe that he had personal
knowledge of this information. Furthermore, the Defendants argue
that Lee Wilson's testimony is contradicted by their evidence that the
Southeastern Public Authority Landfill (SPA Landfill), which accepts
exclusively Virginia MSW, operates near the cap already and expects
to reach that level soon. Moreover, the Defendants argue, the effect
of the Cap Provision on the SPA Landfill is demonstrated by the fact
that prior to the injunction against enforcement of the Cap Provision,
the SPA Landfill applied for an increased tonnage allotment under the
Cap Provision.

The Plaintiffs argue in response that Lee Wilson had ample basis
for his testimony based upon his knowledge and experience in the
MSW industry and based upon DEQ's November 1998 report. With
regard to the SPA Landfill, the Plaintiffs note that on December 30,
1998, DEQ reported to Senator Bolling that the SPA Landfill receives
1,540 tons of MSW per day and that when the SPA Landfill applied
for an increase in tonnage allotment, it made clear that it expected to

20
exceed the cap only on the "rare" occasions when its waste-to-energy
plant is shutdown for repairs. (J.A. 1002).

After reviewing the evidence and arguments offered by both sides
on this issue, we conclude that a genuine issue of material fact exists
regarding whether the Cap Provision discriminates in its practical
effect against MSW generated outside Virginia. Thus, the Plaintiffs
are not entitled to summary judgment in their favor with respect to
this issue.

2.

With respect to the Stacking Provision and the Three Rivers' Ban,
the Defendants do not dispute that a far greater amount of MSW gen-
erated outside Virginia, as compared to MSW generated inside Vir-
ginia, is shipped in specialized containers on barges on Virginia's
waterways for ultimate disposal in landfills located in Virginia. Like-
wise, the Defendants do not dispute that Hale and Waste Management
had serious proposals, prior to the enactment of the statutory provi-
sions at issue, whereby Hale would lease four barges for five years
to Waste Management, which Waste Management in turn would use
in transporting MSW generated in New York to Virginia on Virginia
waterways for disposal in landfills located in Virginia. Finally, the
Defendants do not dispute that enforcement of the Stacking Provision
would more than double the cost of shipping MSW by barge on Vir-
ginia waterways.

Nevertheless, the Defendants argue that the Plaintiffs' evidence is
insufficient to establish that the Stacking Provision and the Three Riv-
ers' Ban discriminates in practical effect against MSW generated out-
side Virginia because the Plaintiffs failed to present any evidence
establishing that there is not, never has been, and never would be any
interest in barging MSW generated inside Virginia. The Defendants
offer no citation of authority for this argument and we understand
why. The obvious focus of the practical effect inquiry is upon the dis-
cernable practical effect that a challenged statutory provision has or
would have upon interstate commerce as opposed to intrastate com-
merce. Logic dictates that for this purpose, the Plaintiffs are only
required to show how the Stacking Provision and the Three Rivers'
Ban, if enforced, would negatively impact interstate commerce to a

21
greater degree than intrastate commerce. This they have done, and the
Defendants have not created a genuine issue of material fact on the
issue.

3.

According to the Plaintiffs, the Trucking Certification Provision
and the Four or More Axle Provision, if enforced, would have a dis-
criminatory impact upon MSW generated outside Virginia because
virtually all MSW generated outside Virginia is delivered to landfills
in vehicles with four or more axles, while the majority of MSW gen-
erated inside Virginia is delivered to landfills in vehicles with less
than four axles. We have reviewed both the evidence offered by the
Plaintiffs in support of this assertion and the evidence offered by the
Defendants in contest in the light most favorable to the Defendants.
It suffices to say that the record reflects a genuine issue of material
fact regarding whether the Trucking Certification Provision and the
Four or More Axle Provision, if enforced, would discriminate against
MSW generated outside Virginia in practical effect.

C.

We now ask whether, viewing the evidence in the record in the
light most favorable to the Defendants, and drawing all reasonable
inferences in their favor, reasonable jurors could find that Virginia's
General Assembly enacted the statutory provisions at issue without a
discriminatory purpose.

Several factors have been recognized as probative of
whether a decisionmaking body was motivated by a discrim-
inatory intent, including: (1) evidence of a "consistent pat-
tern" of actions by the decisionmaking body disparately
impacting members of a particular class of persons; (2) his-
torical background of the decision, which may take into
account any history of discrimination by the decisionmaking
body or the jurisdiction it represents; (3) the specific
sequence of events leading up to the particular decision
being challenged, including any significant departures from
normal procedures; and (4) contemporary statements by

22
 decisionmakers on the record or in minutes of their meet-
ings.

Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 819 (4th Cir.
1995).

We conclude the record in this case establishes that no reasonable
juror could find that in enacting the statutory provisions at issue Vir-
ginia's General Assembly acted without a discriminatory purpose.
Furthermore, the record in this case establishes that no reasonable
juror could find that in signing the statutory provisions at issue into
law Governor Gilmore acted without a discriminatory purpose.

Our conclusions rest upon the historical background of and
sequence of events leading up to the General Assembly's enactment
of and Governor Gilmore's signing into law the statutory provisions
at issue. In 1998, the General Assembly and Governor Gilmore
learned that, as of 1997, Virginia had become the nation's second
largest importer of MSW.8 8 Next came the widely reported news that
New York City was planning to close the Fresh Kills landfill and
begin exporting more of its MSW. Then came reports that Waste
Management was making a $20,000,000 investment in the James
River facility. At this point, the wheels of a political movement to
curb the flow of MSW generated outside Virginia from entering the
borders of Virginia began to turn. The movement was co-spearheaded
by Senator Bolling and Governor Gilmore.

On September 30, 1998, Senator Bolling issued a press release and
formal statement pertaining to his intention to introduce "The Solid
Waste Management Act of 1999" for consideration by Virginia's
General Assembly during its 1999 legislative session. Senator Bol-
ling's statement began by noting Virginia's then-current status as the
second largest importer of MSW in the nation. He further noted that
"[m]ost of the out of state waste currently coming to Virginia origi-
nates in New York, although significant amounts also come from the
District of Columbia and the state of Maryland." (J.A. 601). Senator
Bolling then listed a number of factors that he opined would increase
_________________________________________________________________

8 Both the Congressional Research Service and the DEQ issued reports
in 1998 announcing Virginia's number two MSW-importer ranking.

23
pressure to import dramatically larger amounts of MSW generated
outside Virginia. In this regard, Senator Bolling cited an announce-
ment by Waste Management that it had entered into a new contract
with New York City to import 2,400 tons of MSW a day into Vir-
ginia; New York's intent to export 14,000 tons of MSW a day upon
the closing of the Fresh Kills landfill, the vast majority of which
appeared to be heading to Virginia; and the plans of the then-nation's
largest importer of MSW, Pennsylvania, to enact aggressive legisla-
tive measures to reduce the amount of MSW generated outside Penn-
sylvania from being imported into Pennsylvania.

Senator Bolling's statement then stated: "Some may ask why Vir-
ginians should be concerned about the large volume of out of state
waste we are currently receiving? While there are a number of legiti-
mate concerns, the following are some of the most important." (J.A.
601). Senator Bolling then proceeded to list the following four rea-
sons: (1) continuing to allow Virginia's limited landfill space to be
consumed by MSW generated outside Virginia may harm the ability
of Virginia to properly dispose of its own waste in years to come; (2)
because MSW generated outside Virginia is handled by a number of
vendors before being transported to Virginia, Virginia's ability to
have a satisfactory level of confidence about the nature of the waste
it receives is limited; (3) the large amount of MSW generated outside
Virginia that Virginia is currently receiving "has the potential of
harming Virginia's legacy and image"; and (4) the potential for nega-
tive environmental impact on Virginia's land by the "massive landfill
operations." (J.A. 602). Senator Bolling then stated that it was his
belief that:

. . . Virginia must act now to adopt a comprehensive solid
waste management policy for the 21st century. Such a pol-
icy must assure that Virginia's solid waste disposal needs
are addressed first, that the potential adverse environmental
impacts associated with massive landfill operations are con-
trolled, and that the important legacy of Virginia is pre-
served.

(J.A. 602). "Toward this end," Senator Bolling then stated, "I today
announce my intention to introduce The Solid Waste Management
Act of 1999 for consideration during the 1999 legislative session." Id.

24
In the press release accompanying his formal statement, Senator
Bolling echoed the protectionist motivation behind his introduction of
The Solid Waste Management Act of 1999:

"There is tremendous excess capacity in Virginia's landfills
today. If we don't act now to cap the total amount of waste
that can be disposed of in Virginia's landfills, the amount of
waste being brought to Virginia from other states will
increase significantly in the next few years. Such caps are
the only effective way of limiting the amount of waste that
is being imported to Virginia, and preserving our current
landfill capacity for future generations of Virginians."

(J.A. 607) (emphasis added).

Three months later, on January 15, 1999, Governor Gilmore issued
a press release containing the text of a letter he sent to New York City
Mayor Rudolph Giuliani the same day. The letter reads:

Dear Mayor Giuliani:

I am greatly concerned by your recent comments regarding
the transport of New York City's municipal waste to Vir-
ginia and the policy you announced in December to increase
exports of waste to neighboring states. Like millions of peo-
ple living from Maine to Florida, I am offended by your
suggestion that New York's substantial cultural achieve-
ments, such as they are, obligates Virginia and other states
to accept your garbage. Let me assure you that the home
state of Washington, Jefferson, and Madison has no inten-
tion of becoming New York's dumping grounds.

Over the past two weeks, one company in Virginia has tri-
pled its shipments of New York's municipal waste to Vir-
ginia landfills to approximately 3,000 tons a day. The
company also reports that it expects shipments to increase
to roughly 2.2 million tons per year by 2002. Already, Vir-
ginia ranks as the second largest importer of municipal solid
waste, behind only Pennsylvania. This is highly unaccept-
able.

25
 I understand the problem New York City faces. It is one that
most cities in the nation share. As an urban area, you do not
have landfill facilities within your locality. However, I can-
not agree with your conclusion that the only solution is to
send your waste to Virginia. The Northeast is large and has
many rural areas. I would hope that you could find a solu-
tion to your problem within your region. Unlike most rivers,
your garbage can flow north as well as south.

I agree with you that New York is a great city with some of
the finest cultural amenities in the world. But Virginia is a
great state, deep with history, culture and tradition. I have
a duty to ensure the protection of the natural and historic
resources of Virginia and a solution to this growing trash
problem is essential to my fulfilling that duty.

Very truly yours,

James S. Gilmore, III
Governor of Virginia

(J.A. 633-34) (emphasis added).

Just a week after the Governor issued his press release, the Gover-
nor announced in another press release that he was proposing, and
that Senator Bolling would be the chief patron of, legislation intended
to prevent Virginia from becoming the nation's dumping ground. Spe-
cifically, the Governor stated:

The home state of Washington, Jefferson, and Madison has
no intention of becoming the nation's dumping grounds. . . .
That is why I've asked Senator Bolling to sponsor these bills
that will increase state regulations on landfills, cap daily
landfill deposits, and ban trash barges on Virginia's water-
ways.

(J.A. 635) (emphasis added).

On January 26, 1999, Senator Bolling promptly followed with a
memorandum to the members of the Solid Waste Subcommittee of

26
the Senate Committee on Agriculture, Conservation and Natural
Resources, stating:

One of the most important issues that will be discussed dur-
ing this year's session of the General Assembly is the debate
surrounding Virginia's solid waste management practices.
While many in the General Assembly have been concerned
about this issue for some time, the issue has taken on "front
page prominence" in the last few weeks, primarily due to the
emphasis that has been placed on out of state waste imports.
I am writing to provide you with some background informa-
tion on this issue.

Earlier this year, the Department of Environmental Quality
published their first written report quantifying the amount of
waste that was being placed in Virginia's landfills. Surpris-
ingly, this report indicated that Virginia was receiving 3.2
million tons of garbage from other states, primarily New
York. New York accounted for approximately 60% of our
total waste imports, and imports accounted for approxi-
mately 30% of our total landfill deposits. Based on these
findings, Virginia was identified as the second largest
importer of waste in the nation.

Unfortunately, the amount of garbage being imported to
Virginia has grown dramatically in the past year. That is pri-
marily due to the impending closure of the Fresh Kills land-
fill in New York City, and the fact that Waste Management,
Inc., who owns most of the large regional landfills in Vir-
ginia, has received the contract to handle the relocation of
the Fresh Kills waste stream.

* * *

[T]hese large and increasing waste deposits are prematurely
exhausting Virginia's limited landfill capacity. In fact, the
Department of Environmental Quality has estimated that our
current landfill capacity could be exhausted 20 years sooner
than would otherwise be the case. This means that we may
have to site an entire generation of new landfills in Virginia

27
 20 years sooner than we would otherwise have to do so sim-
ply because our current landfill space is being filled up by
waste from other states.

* * *

[T]hese waste deposits could create long term environmen-
tal problems for Virginia. . . . While we have no choice but
to assume this burden for our own waste, we should feel no
obligation to assume that burden for the waste of other
states.

Finally, I would suggest that becoming the nation's "King
of Trash" is not consistent with the image we have tried to
promote for Virginia. . . . How can we possibly promote
Virginia as the Silicon Dominion of the 21st century while
we stand idly by and allow Virginia to become the largest
importer of garbage in the nation.

(J.A. 637-38).

A few days after Senator Bolling issued the above quoted memo-
randum, in response to a request by another senator, he issued another
memorandum to the Senate's Solid Waste Subcommittee containing
additional information regarding the importation of MSW generated
outside Virginia into Virginia's regional landfills. In this memoran-
dum, Senator Bolling clearly outlined the potential for discriminatory
impact upon MSW generated outside Virginia: "The vast majority of
the municipal solid waste being received at the seven regional land-
fills in Virginia comes from other states. While the percentage of out
of state waste statewide is approximately 30%, the percentage of out
of state waste at the seven regional landfills is 71%." (J.A. 667). On
the same day, Senator Bolling personally addressed the Solid Waste
Subcommittee and verbally reassured committee members that most
local landfills in Virginia accept less than one hundred tons of MSW
a day, and thus would not be affected by a 2,000 ton per day cap. The
record also contains transcripts of speeches on the floor of the Gen-
eral Assembly by two delegates to the General Assembly and the gen-
eral reaction of fellow delegates. The transcripts establish the General
Assembly's general antipathy toward MSW generated outside Vir-

28
ginia. First, one delegate to the General Assembly queried: "`Do we
want to be known as the capital of garbage?'" (J.A. 1007). His query
was met with a chorus of nos. He then queried: "`Maybe we need a
new bumper sticker--instead of Virginia is for lovers, what about
Virginia is for garbage? Or how about a special license plate with a
dumpster on it.'" Id. Again, the record shows a chorus of nos. Finally,
Delegate Williams lamented before the General Assembly: "`What a
message we are sending, buy a home, live in the great Common-
wealth, the number one importer of garbage.'" Id. Another delegate
to the General Assembly explained:

"This [cap provision] is the second bill in the Governor's
package that deals with the waste problem that we are hav-
ing and I consider it the most important bill in the gover-
nor's package . . . . [T]his bill is the one that really gets at
the doubling of waste the last two or three years at our land-
fills and the potential to double that waste again in the next
two or three years."

Id. (alteration in original).

The evidence just outlined shows unmistakably the legislative and
gubanatorial opposition to further increases in the volume of MSW
generated outside Virginia crossing the borders of Virginia for ulti-
mate placement in Virginia's seven regional landfills.9
9 No reasonable
_________________________________________________________________

9 Although the Defendants do not directly dispute the accuracy or
authenticity of the press releases and transcripts just discussed and in
some cases quoted, the Defendants argue the quotation's from the press
releases and the debate transcripts are inadmissible because they "were
not authenticated and were replete with double-hearsay." (the Defen-
dants' Br. at 44). Because the Defendants failed to make these objections
below, and a gross miscarriage of justice has not resulted from the dis-
trict court's consideration of the challenged evidence in support of the
Plaintiffs' motion for summary judgment, the Defendants waived their
right on appeal to challenge the admissibility of this evidence. See Jones
v. Owens-Corning Fiberglass Corp., 69 F.3d 712, 718 (4th Cir. 1995);
Liberles v. Cook County, 709 F.2d 1122, 1126 (7th Cir. 1983); Auto
Drive-Away Co. of Hialeah, Inc. v. Interstate Commerce Commission,
360 F.2d 446, 448-49 (5th Cir. 1966); 10A A. Charles Alan Wright et al.,
Federal Practice & Procedure § 2716, 282-286 (3d ed. 1998). Accord-
ingly, the Defendants on appeal cannot rely on these arguments of inad-
missibility as a basis for reversal of the district court's grant of summary
judgment in favor of the Plaintiffs.

29
juror could find the statutory provisions at issue had a purpose other
than to reduce the flow of MSW generated outside Virginia into Vir-
ginia for disposal. Indeed, the very purpose the Defendants proffer in
this litigation for the enactment of the statutory provisions at issue--
to alleviate or at least reduce health and safety threats to Virginia's
citizens and environment created by the importation of MSW from
states with less strict limitations upon the content of MSW than
Virginia--fully supports our conclusion. This is because an inherent
component of the Defendants' proffered purpose of Virginia's enact-
ment of the statutory provisions at issue is discrimination against
MSW generated outside Virginia. Whether Virginia has a constitu-
tionally valid reason for engaging in such discrimination is the focus
of the strict scrutiny inquiry.

The Defendants contend the record shows that a genuine issue of
material fact exists with respect to whether the statutes at issue were
enacted with discriminatory intent or for neutral reasons. In support,
the Defendants direct our attention to a post-enactment statement in
a sworn declaration by Senator Bolling to the effect that he sponsored
the statutory provisions at issue because of his concern over the rapid
growth in the volume of MSW being deposited in Virginia landfills
"regardless of the source" of that MSW. (J.A. 1228).

This statement is not sufficient to create a genuine issue of material
fact on the issue of intent, because other statements by Senator Bol-
ling in the same sworn declaration flatly contradict his "regardless of
the source" phrase. Specifically, Senator Bolling admitted that MSW
generated outside Virginia presented "increased concerns" on account
of "the rapidly increasing volume and our perception that we in the
Commonwealth have less control over the content of that waste and
our ability to enforce Virginia regulations as to that waste stream."
(J.A. 1229). In enacting the statutory provisions at issue, Senator Bol-
ling further explained: "We were aware that the solid waste regula-
tions of other states were not as stringent as those of the
Commonwealth." Id. These latter quoted statements of Senator Bol-
ling unequivocally show that the volume of MSW generated outside
Virginia flowing into Virginia triggered more concern on the part of
Virginia's General Assembly than the volume of MSW generated in
Virginia being deposited in landfills located in Virginia. It is true that
other portions of Senator Bolling's sworn declaration stress that Vir-

30
ginia intended the challenged statutes to regulate evenhandedly with-
out regard to the source of the waste; however, the Defendants cannot
create a genuine issue of material fact by presenting conflicting sworn
statements as they have done with respect to the issue of discrimina-
tory intent. Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir.
1984) ("A genuine issue of material fact is not created where the only
issue of fact is to determine which of the two conflicting versions of
the plaintiff's testimony is correct.").

D.

We must next consider whether, viewing the evidence in the light
most favorable to the Defendants, the Defendants have proffered suf-
ficient evidence for reasonable jurors to find, with respect to each
statutory provision at issue, that the provision is demonstrably justi-
fied by a valid factor unrelated to economic protectionism, and that
no nondiscriminatory alternatives exist that are adequate to preserve
the local interests at stake. Environmental Technology Council, 98
F.3d at 785.

1.

The Defendants argue that all of the statutory provisions at issue
are demonstrably justified because "solid waste streams generated in
trash exporting states raise health and safety concerns not presented
by Virginia waste." (the Defendants' Br. at 56). In this regard, the
Defendants stress that the problem is particularly acute with respect
to exporting states that do not have laws as strict as Virginia's laws
governing regulated medical waste and certain types of hazardous
waste. By analogy, the Defendants rely upon Maine v. Taylor, 477
U.S. 131 (1986). In that case, Maine demonstrated that all out-of-state
baitfish were subject to parasites foreign to in-state baitfish. This dif-
ference posed a threat to Maine's natural resources, and absent a less
discriminatory means of protecting the environment--and none was
available--the importation of baitfish from any state could properly
be banned. Id. at 140.

The Plaintiffs do not quarrel with the Defendants' position that the
health and safety of Virginia citizens is a legitimate local interest.
Neither do we. Nevertheless, in order to survive the Plaintiffs' motion

31
for summary judgment with respect to the first prong of strict scrutiny
analysis, the Defendants must carry their burden of showing that
MSW generated outside Virginia is more dangerous than MSW gen-
erated in Virginia. Chemical Waste Management, Inc. v. Hunt, 504
U.S. 334, 343-44 (1992) (recognizing that while the health and safety
of the citizens of Alabama may be a legitimate local interest, Alabama
offered no evidence that hazardous waste generated outside Alabama
is more dangerous than hazardous waste generated in Alabama; there-
fore, Alabama failed to carry its burden of showing that the Alabama
statute imposing an additional fee on all hazardous waste generated
outside Alabama and disposed of at Alabama facilities was demon-
strably justified by a valid factor unrelated to economic protection-
ism).

In this regard, the Defendants have offered evidence demonstrat-
ing, when viewed in the light most favorable to them: (1) that certain
materials in MSW can be hazardous to human health; (2) that each
state has its own definition of MSW; (3) that "[w]hile one state may
find it appropriate to regulate strictly a certain type of solid waste,
another state may not be as aware of or concerned about the risks
posed by that type of item into the MSW stream," (J.A. 356); (4) that
Virginia law completely prohibits potentially infectious items such as
blood and urine from being disposed of as MSW, while Maryland and
North Carolina allow disposal of blood and urine as MSW under lim-
ited circumstances; (5) that Virginia law prohibits urine from being
disposed of as MSW while New York allows its disposal as MSW
without limitation; (6) that Maryland and New York allow hazardous
waste generated at less than 100 kilograms per month to be disposed
of as MSW while Virginia does not; and (7) that unlike Virginia,
Maryland and New York do not impose manifesting or tracking
requirements on hazardous waste from small quantity generators.

From this evidence, a reasonable juror could infer that, as a whole,
MSW generated outside Virginia poses health and safety risks not
posed by MSW generated inside Virginia. Such a finding would sat-
isfy the Defendants' burden of establishing that the statutory provi-
sions at issue are justified by a reason other than economic
protectionism.

32
2.

With respect to the second prong of the strict scrutiny test, the
Defendants must prove that the statutory provisions at issue are the
least discriminatory means of addressing Virginia's concern that
MSW generated outside Virginia poses health and safety risks not
posed by MSW generated inside Virginia.

a.

The Defendants assert that any plan for improving state police
powers over MSW must begin with and be linked to limiting the vol-
ume of MSW to a level where waste can be screened adequately. In
support of this assertion, the Defendants rely on the following sworn
statements by Virginia's Director of Program Coordination for DEQ:

The cap statute is a necessary and appropriate response to
the MSW volume crisis faced by the Commonwealth. The
problem is particularly acute with regard to out-of-state
MSW. While out-of-state MSW poses more of a threat than
Virginia MSW, the Commonwealth has less ability to police
the out-of-state loads. Any plan for improving state police
powers over MSW must begin with and be linked to control-
ling the volume to a level where waste can be adequately
screened.

The disposal cap statute allows the Commonwealth to
better protect health and safety within the Commonwealth
by controlling daily levels of MSW to a volume that reason-
ably can be managed and policed.

* * *

Increased DEQ inspections are a valuable mechanism for
increasing adherence to regulations. However, the volume
problem cannot be controlled simply by stepping up the
inspection rate at landfills. The number of inspectors is sim-
ply one component of an effective waste-screening program
by the Commonwealth. Matching the number of inspectors

33
 to the increasing volumes becomes counterproductive at a
point where the traffic of large container trucks arriving at
the landfill face, depositing their loads, and departing ren-
ders the landfill face unsafe for foot traffic. Without a doubt,
high volumes of waste make inspecting waste even more
difficult and exacerbate an ongoing problem.

The time required for the DEQ inspectors to adequately
screen the waste will limit the volume of waste that can be
processed at a landfill on a daily basis. An effective screen-
ing program by the Commonwealth would require the
unloading of vehicles on an impermeable pad or other area
dedicated to waste screening. The waste would then have to
be spread to a sufficient shallow depth on the pad to identify
individual components, including the breaking apart of
waste received in a baled, compacted, or frozen state.
Intense visual screening would then be conducted by the
inspector. Besides visual screening, chemical analysis
through hazardous waste screening devices would have to
be undertaken in order to detect hazardous waste which can-
not be detected visually. Further, the testing protocol for
certain waste may involve laboratory analysis that cannot be
completed in short duration. If unauthorized waste is discov-
ered, processes must be in place for the removal and proper
disposition of waste at an appropriate waste facility. The
Commonwealth will have to develop a specific program
depending on the needs and character of each different facil-
ity. Once a program is developed, it will have to be refined
until it is proven effective. This process would slow opera-
tions down to a halt and have the practical effect of lowering
daily intake to far lower than 2,000 tons a day.

A properly designed certification requirement would not
be as effective as the disposal cap statute because, without
volume control, DEQ cannot adequately police MSW loads.

(J.A. 1159-61).

In response, the Plaintiffs primarily argue that the Defendants have
failed to meet the second prong because the Cap Provision does not

34
use the least discriminatory means of addressing the alleged health
and safety concern about the composition of MSW generated outside
Virginia. The Plaintiffs point out that the Cap Provision makes no
effort to distinguish between the MSW of states according to an indi-
vidual state's level of MSW regulation. According to the Plaintiffs,
interstate commerce would be burdened less if Virginia only capped
the amount of waste that can be imported from states with MSW reg-
ulatory schemes less restrictive than Virginia. Additionally, the more
closely a state's MSW regulatory scheme tracks that of Virginia, the
higher the cap should be.

At first blush, the Plaintiffs' argument seems more discriminatory
against MSW generated outside Virginia than the across the board cap
in the Cap Provision. However, when one carefully considers the
Plaintiffs' argument, its logic is clear. If a state enacts a statute that
purposely discriminates against interstate commerce in an effort to
address a concern other than economic or resource protectionism, the
second prong of the strict scrutiny test requires that the statute impose
the least burden possible on interstate commerce. In other words,
rather than discriminating against MSW from every state other than
Virginia, Virginia's cap should only target the MSW from states that
have lesser health and safety standards regarding MSW than Virginia.
Because the Defendants have presented no evidence as to why a nar-
rower capping statute would not adequately address the identified
health and safety concerns for Virginia citizens, the Defendants fail
to survive the Plaintiffs' motion for summary judgment with respect
to the second prong of the strict scrutiny test as it pertains to the Cap
Provision.10
10
_________________________________________________________________

10 The situation at issue here is materially distinguishable from the situ-
ation in Maine v. Taylor, 477 U.S. 131 (1986), legal authority heavily
relied upon by the Defendants. In Taylor, sampling and inspection proce-
dures did not already exist for testing whether baitfish imported from
outside Maine contained parasites harmful to native fisheries. Here, sam-
pling and inspection procedures already exist for testing whether MSW
generated outside Virginia contains materials harmful to the health and
safety of Virginia citizens. The Defendants' proffered nondiscriminatory
reason for the Cap Provision is that some states have less strict regula-
tions regarding the content of MSW than Virginia. The Defendants have
offered evidence that the inspection procedures regarding MSW are inad-

35
b.

The Defendants argue that they have submitted sufficient evidence
to create a genuine issue of material fact regarding whether the Stack-
ing Provision and the Three Rivers' Ban are the least discriminatory
alternatives available for protecting the health and safety of Virginia
citizens against the toxic contamination of its rivers from unintended
spills. We agree. Notwithstanding the Plaintiffs' protestations to the
contrary, the Defendants have submitted sufficient evidence in this
regard to create genuine issues of material fact that need to be
resolved by the trier of fact. For example, the Defendants have sub-
mitted the sworn statement of DEQ Director Dennis Treacy that based
upon his knowledge and experience, the Stacking Provision and Three
Rivers' Ban are necessary to protect the health and safety of Virginia
citizens. Treacy outlines in a sworn declaration why and how barge
transport of MSW presents serious and unique health and safety
threats to Virginia's citizens that cannot be alleviated absent enforce-
ment of the Stacking Provision and the Three Rivers' Ban. Further-
more, the record contains Hale's answers to interrogatories in which
Hale admits: (1) in 1993, it lost thirty-three containers containing gen-
eral merchandise overboard on a barge it owned due to improper lash-
ing; and (2) in 1994, a fire resulted in the partial destruction of cargo
on board a barge it owned. These incidents certainly suggest the
potential for a health and environmental disaster on a Virginia water-
way presented by the barge transport of MSW.

c.

As for the Trucking Certification Provision and the Four or More
Axle Provision, the Defendants fail to offer any affirmative evidence
of the non-existence of less burdensome alternatives on interstate
commerce. Instead, the Defendants rely on the deference that is tradi-
_________________________________________________________________

equate to protect the health and safety of Virginia citizens with respect
to MSW generated from states outside Virginia with MSW regulatory
schemes less strict than Virginia. However, the Defendants have offered
no evidence as to why the MSW generated from states with MSW regu-
latory schemes that are equally or more strict than Virginia should be
capped.

36
tionally given state legislation in the area of highway safety. The tra-
ditional deference that is due state legislation in the area of highway
safety

derives in part from the assumption that where such regula-
tions do not discriminate on their face against interstate
commerce, their burden usually falls on local economic
interests as well as other States' economic interest, thus
insuring that a State's own political processes will serve as
a check against unduly burdensome regulations. Less defer-
ence to the legislative judgment is due . . . where the local
regulation bears disproportionately on out-of-state residents
and businesses.

Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 675-76
(1981) (internal quotation marks omitted).

While all the parties agree that the Trucking Certification Provision
and the Four or More Axle Provision are not facially discriminatory
against MSW generated outside Virginia, and we have already deter-
mined that a genuine issue of material fact exists regarding whether
these statutory provisions discriminate in their practical effect against
MSW generated outside Virginia, the Defendants' argument that we
are required to give deference to the legislative judgment of the Gen-
eral Assembly in applying the second prong of the strict scrutiny anal-
ysis (to the Trucking Certification Provision and the Four or More
Axle Provision) is without merit. This is because we have also deter-
mined that no reasonable juror could find that in enacting these two
statutory provisions Virginia's General Assembly acted without a dis-
criminatory purpose. Such a discriminatory purpose wholly undercuts
the notion that Virginia's political process served as a check against
unduly burdensome regulations. Without such a check, the rationale
for owing deference to the legislative judgment of Virginia's General
Assembly in the area of highway safety is completely lacking.

With no deference owed to the legislative judgment of Virginia's
General Assembly in enacting the Trucking Certification Provision
and the Four or More Axle Provision, and with absolutely no evi-
dence showing that less burdensome alternatives do not exist on inter-
state commerce, these two statutory provisions do not survive the

37
second prong of the strict scrutiny test. Accordingly, we affirm the
district court's grant of summary judgment in favor of the Plaintiffs
with respect to their dormant Commerce Clause challenge in regard
to the Trucking Certification Provision and the Four or More Axle
Provision.

E.

The Defendants next seek to avoid confrontation with the strictures
of the dormant Commerce Clause altogether by asserting application
of the market participant doctrine. Under the market participant doc-
trine, "a state acting in its proprietary capacity as a purchaser or seller
may favor its own citizens over others." Cammps New-
found/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 592-93
(1997) (internal quotation marks omitted). If there is no "direct state
involvement in the market," however, the strictures of the dormant
Commerce Clause apply with full force. Id. at 593.

The record in this case, when viewed in the light most favorable
to the Defendants, leaves no doubt, as the district court astutely
observed, that in enacting the statutory provisions at issue, Virginia
was not acting as a private participant in the waste disposal market,
but as regulator of "the conduct of others in that market as only a state
can do." Waste Management II, 64 F. Supp.2d at 544. Accordingly,
the market participant doctrine is inapplicable.

F.

The Defendants next argue that in enacting Subchapter IV of the
Resource Conservation and Recovery Act of 1976 (RCRA), 42
U.S.C. §§ 6941-6949a, Congress intended to authorize a state to dis-
criminate against MSW generated outside that state, thus overriding
the dormant Commerce Clause. We disagree.

The dormant Commerce Clause prohibits states from unjustifiably
discriminating against the free flow of interstate commerce. Environ-
mental Tech. Council, 98 F.3d at 782.

Where Congress has acted in an area specifically autho-
rizing state or local government action, the dormant Com-

38
 merce Clause is, however, inapplicable, even if the state
action interferes with interstate commerce. . . .

In order for a state law to be removed from the reach of
the dormant Commerce Clause, however, congressional
intent to authorize the discriminating law must be either
unmistakably clear or expressly stated. Congress need not
state that it intends to override the dormant Commerce
Clause, but it must affirmatively have contemplated the oth-
erwise invalid state legislation.

Id. (internal quotation marks omitted). Here, the Defendants bear the
burden of establishing congressional intent to authorize a state to dis-
criminate against MSW generated outside that state. Wyoming v.
Oklahoma, 502 U.S. 437, 458 (1992).

Subchapter IV of RCRA governs "State or Regional Solid Waste
Plans." Its objectives "are to assist in developing and encouraging
methods for the disposal of solid waste which are environmentally
sound and which maximize the utilization of valuable resources
including energy and materials which are recoverable from solid
waste and to encourage resource conservation." 42 U.S.C. § 6941.
These objectives are to be accomplished by federal"assistance to
States or regional authorities for comprehensive planning pursuant to
Federal guidelines . . . ." Id.

In support of their congressional override argument, the Defen-
dants point to a provision of Subchapter IV in which Congress
directed that states be encouraged to consider numerous local condi-
tions in addressing their solid waste disposal problems, including:
"population density, distribution, and projected growth"; local "geo-
graphic, geologic, climatic, and hydrologic characteristics"; and "po-
litical, economic, organizational, financial, and management problems
affecting comprehensive solid waste management." 42 U.S.C.
§ 6942(c). According to the Defendants, by encouraging states to
account for these factors in creating MSW plans, Congress "explicitly
gave states the authority to protect local interests when it comes to
MSW management, including the authority to limit or exclude MSW
from other states." (the Defendants' Br. at 37).

39
The Defendants also contend that the legislative history of RCRA
makes unmistakably clear that Congress intended to override the dor-
mant Commerce Clause so as to constitutionally permit a state to
refuse disposal of MSW generated outside that state. The snippets of
legislative history upon which the Defendants rely in making this
argument are as follows: (1) "[i]n formulating a state plan it is the
Committee's intention to permit wide flexibility on the part of the
state developing such plan so that each state can plan for its particular
problems," H.R. Rep. No. 94-1491, pt. 1 at 35 (1976), reprinted in
1976 U.S.C.C.A.N. 6238, 6273; (2) Subchapter IV does not "prevent
or effect [sic] any activities that [were] presently being carried out"
by states at the time Subchapter IV was enacted,11 11 id. at 64, 6302; and
(3) a statement that "[i]t is the purpose of this legislation to assist the
cities, counties and states in the solution of the discarded materials
problem," id. at 11, 6249.

Below, the district court concluded that these isolated bits of legis-
lative history and the broadly worded statutory language upon which
they rely "do not come close to expressing an`unmistakably clear'
intent on the part of Congress to exempt state laws relating to solid
waste from the limitations of the dormant Commerce Clause." (J.A.
10). We fully agree with this conclusion. The fragments of statutory
language and legislative history cited by the Defendants fall far short
of the demanding standard that congressional intent be unmistakably
clear. See In re: Southeast Arkansas Landfill, Inc., 981 F.2d 372, 377
(8th Cir. 1992) (holding that "[n]othing in RCRA or any other federal
statute comes close to authorizing different treatment of out-of-state
waste").

G.

The Defendants' next to last attempt at avoiding the strictures of
_________________________________________________________________

11 The Defendants claim this second snippet of legislative history is rel-
evant because at the time Congress enacted Subchapter IV it acknowl-
edged that "[s]ome states have moved to ban the importation of waste as
have their political subdivisions. These actions have raised serious ques-
tions relative to restraint of trade and interference with interstate com-
merce." H.R. Rep. No. 94-1491, pt. 1 at 3 (1976), reprinted in 1976
U.S.C.C.A.N. 6238, 6240.

40
the dormant Commerce Clause altogether is their assertion of a pur-
ported affirmative defense. In this regard, the Defendants challenge
the district court's grant of the Plaintiffs' motion to strike their affir-
mative defense.

Federal Rule of Civil Procedure 12(f) permits a district court, on
motion of a party, to "order stricken from any pleading any insuffi-
cient defense." Rule 12(f) motions are generally viewed with disfavor
"because striking a portion of a pleading is a drastic remedy and
because it is often sought by the movant simply as a dilatory tactic."
5A A. Charles Alan Wright et al., Federal Practice & Procedure
§ 1380, 647 (2d ed. 1990). Nevertheless, "a defense that might con-
fuse the issues in the case and would not, under the facts alleged, con-
stitute a valid defense to the action can and should be deleted." Id.
§ 1381 at 665.

The Defendants' purported affirmative defense is based upon their
assertion that New York City interfered with the free flow of com-
merce, and by extension the Commerce Clause, by taking affirmative
steps to discourage the disposal of MSW within the borders of the
State of New York. Having so interfered, the Defendants contend the
Plaintiffs are prohibited from challenging the statutory provisions at
issue under the dormant Commerce Clause. Not surprisingly, the
Defendants cite no case law in support of their position.

We hold the district court did not err in striking the Defendants'
purported affirmative defense. Even assuming arguendo that New
York's alleged conduct should legally prevent it from bringing a con-
stitutional challenge under the dormant Commerce Clause to the stat-
utory provisions at issue, at the risk of stating the obvious, neither the
State of New York nor New York City is a plaintiff in this litigation.
Furthermore, we see no basis for somehow holding any of the Plain-
tiffs vicariously liable for the conduct of the State of New York
and/or New York City.

VI.

Lastly, the Defendants challenge the district court's holding that
the Three Rivers' Ban and the Stacking Provision violate the Suprem-
acy Clause. The Supremacy Clause provides that the "Constitution,

41
and the Laws of the United States which shall be made in Pursuance
thereof . . . shall be the supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding." U.S. Const., art.
VI, cl.2.

Thus, federal legislation, if enacted pursuant to Congress'
constitutionally delegated authority, can nullify conflicting
state or local actions. Consideration of issues arising under
the Supremacy Clause start[s] with the assumption that the
historic police powers of the States [are] not to be super-
seded by . . . Federal Act unless that [is] the clear and mani-
fest purpose of Congress. The ultimate touchstone of
preemption analysis is the intent of Congress. Even when
Congress' intent is unclear, state law must nevertheless
yield when it conflicts with federal law. In making the deter-
mination of whether state law conflicts with federal law, the
test to apply is whether it is impossible to comply with both
state and federal law or whether the state law stands as an
obstacle to the accomplishment of the full purposes and
objectives of the relevant federal law.

National Home Equity Mortg. Assoc. v. Face, 2001 WL 101454 at *2
(4th Cir. February 7, 2001) (internal quotation marks and citations
omitted) (alteration in original).

The Supremacy Clause claim at issue in this appeal principally
relies on the federal documentation provisions governing the use of
vessels in the coastwise trade. See 46 U.S.C. § 12103 (describing pre-
requisites for issuance of a "certificate of documentation") and
§ 12106 (describing criteria for endorsing a certificate of documenta-
tion with a "coastwise endorsement"). According to the record, each
barge that Hale plans to supply Waste Management for the transporta-
tion of MSW has a valid federal Certificate of Documentation autho-
rizing it to engage in "coastwise trade" and a valid Coast Guard
Certificate of Inspection.

The Supreme Court has held that a federal license confers upon the
licensee a right to operate freely in each state's waters, subject only
to legitimate exercises of the state's police power. Douglas v. Sea-

42
coast Prods., Inc., 431 U.S. 265, 281 (1977). Thus, "[s]tates may
impose upon federal licensees reasonable, nondiscriminatory conser-
vation and environmental protection measures otherwise within their
police power." Id. at 277. Precedent is clear, however, that a state stat-
ute that completely excludes federally licensed commerce upon such
state's waterways is unconstitutional. Id. 283.

Here, the Three Rivers' Ban completely excludes federally licensed
barges from transporting any type or amount of MSW on the Rappa-
hanock, James and York Rivers in Virginia. The reasonableness of
such a complete ban is simply not supported by the evidence in the
record, even when viewed in the light most favorable to the Defen-
dants. The issue of whether federal preemption of the Stacking Provi-
sion exists is far less clear. Indeed, genuine issues of material fact
exist regarding the health and environmental risks associated with
stacking sealed shipping containers containing MSW more than two
high on barges. Accordingly, the district court erred in concluding as
a matter of law that the Stacking Provision violates the Supremacy
Clause.12
12
_________________________________________________________________

12 The Defendants contend that the "savings" language contained in the
Three Rivers' Ban and the Stacking Provision save those statutes from
a Supremacy Clause challenge. We reject this argument on the basis that
the restrictions at issue are straightforward and their accompanying sav-
ings language is repugnant to those restrictions. See Looney, 133 S.E. at
755.

We also reject the Defendants' argument that 42 U.S.C. § 1983 does
not provide Hale a remedy with respect to its Supremacy Clause claim.
By its terms, Title 42 U.S.C. § 1983 only provides a remedy for the vio-
lation of rights that are defined in the Constitution or in a federal statute.
Thus, the § 1983 remedy will be available for a violation of a federal
statute only if the statute itself "gives rise to a federal right." Blessing v.
Freestone, 520 U.S. 329 (1997).

While "the Supremacy Clause, of its own force, does not create any
rights enforceable under § 1983," Golden State Transit v. Los Angeles,
493 U.S. 103, 107 (1989), the federal documentation provisions govern-
ing the use of vessels in the coastwise trade, see 46 U.S.C. §§ 12103,
12106, confer a right in the form of a license to operate freely in each
state's waters subject only to the legitimate exercise of a state's police
powers. Douglas, 431 U.S. at 281. As the holder of such licenses, Hale
has standing to assert its Supremacy Clause claim under § 1983.

43
VII.

In conclusion, we affirm the district court's grant of summary judg-
ment in favor of the Plaintiffs with respect to their dormant Com-
merce Clause challenges to the Cap Provision, the Trucking
Certification Provision, and the Four or More Axle Provision. We
also affirm the district court's grant of summary judgment in favor of
the Plaintiffs with respect to Hale's Supremacy Clause challenge to
the Three Rivers' Ban. However, we vacate the district court's grant
of summary judgment in favor of the Plaintiffs with respect to their
dormant Commerce Clause challenge to the Three Rivers' Ban and
the Stacking Provision and remand for further proceedings consistent
with this opinion. We also vacate the district court's grant of sum-
mary judgment in favor of Hale with respect to Hale's claim that the
Stacking Provision violates the Supremacy Clause and remand for
further proceedings consistent with this opinion. Finally, we vacate
the district court's entry of judgment against Governor Gilmore and
remand with instructions that the district court dismiss him as a party
in this action.

AFFIRMED IN PART, VACATED IN PART,
AND REMANDED

WIDENER, Circuit Judge, concurring:

I concur in all of the opinion of the court except Part IV.A, and I
concur in the result that Part IV.A obtains.

I.

The pertinent part of the Code section involved is not complicated:

Any locality is authorized to contract with any person,
whether profit or non-profit, for garbage and refuse pickup
and disposal services in its locality and to enter into con-
tracts relating to waste disposal facilities which recover
energy or materials from garbage, trash and refuse.

Virginia Code § 15.2-932 (Michie 1997).

44
As to Part IV.A and the statute involved here, it is obvious to me
that a more reasonable reading of the plain language of the statute
would confine the contracting authority to "its locality" in accord with
the position taken by the defendants under the Dillon's rule construc-
tion required in Virginia when construing statutes conferring power
upon political sub-divisions. That rule, as construed, is that "[a]ny
fair, reasonable doubt concerning the existence of the power is
resolved by the courts against the corporation and the power is
denied," as noted in the majority opinion, slip 16. Richmond v. Bd. of
Sup'rs of Henrico County, 101 S.E.2d 641, 645 (Va. 1958). But this
Code section has been construed by the Virginia Supreme Court in
Concerned Residents v. Bd. of Sup'rs of Gloucester County, 449
S.E.2d 787 (Va. 1994) in the context of trash collection, as here: "ac-
tion taken by the county in response thereto is a legislative act in the
furtherance of the county's police powers." 449 S.E.2d at 790. "When
a legislative body [so] exercises its police powers every possible pre-
sumption shall be indulged in favor of the validity of its legislative
act." 449 S.E.2d at 790.

In the case at hand there is no doubt that the trash facility involved
here undertook, with the agreement and consent of the county, the
reception of trash from outside Virginia. This undertaking was just
such an exercise of police power as the Virginia Court referred to in
Concerned Residents. When that is taken into account, in my opinion,
taking the out-of-state trash into the Virginia trash dump was not ultra
vires under the Dillon rule. In this construction of the statute, I am
supported by Virginia Code § 15.2-937(B), a part of the same statu-
tory scheme as § 15.2-932, which refers to "solid waste transported
from any jurisdiction," an obvious inference that the importation of
foreign trash is contemplated by the statute.

The powers of political sub-divisions in Virginia are quite limited
under Dillon's rule, as noted by the majority. In addition to powers
granted in express words, or incident to and necessary, or fairly
implied, by such words, they are limited to "those essential to the
accomplishment of the declared objects and purposes of the corpora-
tion - not simply convenient but indispensable." Board of Supervisors
of Henrico Co., 101 S.E.2d at 645; Cline v. Robb, 548 F. Supp. 128,
131 n.7 (E.D. Va. 1982) (three-judge court). The Commonwealth can
thus limit the power of political sub-divisions to contract with waste

45
disposal facilities of any kind, but the Commonwealth may not autho-
rize a political sub-division to contract with such waste disposal facil-
ities in violation of the Constitution, as here.

There is no reason apparent why Virginia may not permit her polit-
ical sub-divisions to operate waste disposal facilities for their own
benefit, either performing the operation itself or by contract. Or Vir-
ginia may do the same. In that event, the Commonwealth or the politi-
cal sub-division disposing of local waste would act under the market
participant exception to the Dormant Commerce Clause. See Reeves,
Inc. v. Stake, 447 U.S. 429 (1980) (holding that a state-owned con-
crete plant could choose to sell only to state residents); Nat'l Solid
Waste Mgmt. Assn. v. Williams, 146 F.3d 595 (8th Cir. 1998); cf.
Med. Waste Mgmt. Assoc. v. Mayor and City Council of Baltimore,
966 F.2d 148 (4th Cir. 1992). But if the Commonwealth chooses to
permit the political sub-divisions to use waste disposal as a revenue
source by the importation of foreign waste, it must be done within the
confines of the Constitution. Language authorizing political sub-
divisions to act as market participants might be easily drafted, but
such has not been accomplished here.

II.

I do not rely on the rather flamboyant statements of the political
authorities in arriving at my concurrence.

KING, Circuit Judge, concurring in part and dissenting in part:

I am pleased to concur in nearly all of the fine opinion authored by
my friend Judge Hamilton. I part company with him solely on the
issue concerning the propriety of this suit being maintained against
Governor Gilmore, and I respectfully dissent on that point. In deter-
mining that the Governor is not a proper party to this action, the
majority, in my view, erroneously concludes that "[t]he fact that he
has publicly endorsed and defended the challenged statutes does not
alter our analysis." Ante, at 15. The majority instead posits that our
resolution of this question rests on whether his general duty to "take
care that the laws be faithfully executed," Va. Const. art. V, § 7,
makes him a proper defendant in this case under the exception to
Eleventh Amendment immunity found in Ex parte Young, 209 U.S.

46
123 (1908). Because Governor Gilmore's connection to the statutes
at issue is far more specific than his general duty to uphold the law,
I would not dismiss him as a party.1
1

The majority's own account of the facts in this case confirms to me
that Governor Gilmore is not just a superfluous target of the Plaintiffs.
Upon learning of New York City's imminent exportation of munici-
pal solid waste ("MSW"), the Governor announced plans to "dis-
patch[ ] his top environmental officials to meet with their counterparts
from other states `to ensure that Virginia does not drown in a regional
sea of garbage.'" Ante, at 9 (quoting J.A. 597). He also imposed a
moratorium on new landfill development, and he instructed his Secre-
tary of Natural Resources to recommend legislation to deal with the
MSW problem. See id. at 9. The Governor himself proposed such leg-
islation in his 1999 State of the Commonwealth address to the Gen-
eral Assembly of Virginia, referring specifically to Waste
Management's plans "`to import four thousand more tons of New
York City trash into Virginia per day.'" Id. (quoting J.A. 630). More-
over, "when New York City Mayor Giuliani suggested that Virginia
might have an obligation to accept New York City's MSW, Governor
Gilmore responded that `the home state of Washington, Jefferson, and
Madison has no intention o[f] becoming New York's dumping
grounds.'" Id. (quoting J.A. 635) (alteration in original). In fact, in
early 1999, the General Assembly approved and the Governor signed
into law the five statutory provisions at issue in this case. See id. at
10.

Furthermore, Governor Gilmore's co-defendants -- the Common-
wealth's Secretary of Natural Resources and the Director of the Vir-
ginia Department of Environmental Quality -- possess unquestioned
authority to enforce these statutes. Significantly, though not explicitly
discussed in the course of the district court proceedings, they serve
_________________________________________________________________

1 Likewise, the district court, in retaining Governor Gilmore as a party,
recognized that his connection to the disputed statutes extends beyond
his general duty to uphold the law. The court noted that "many courts
have held that a generalized duty to enforce state law is insufficient.
Governor Gilmore, however, has actively and publicly defended the leg-
islation at issue. He is therefore a proper defendant." Waste Mgmt. Hold-
ings, Inc. v. Gilmore, 64 F. Supp. 2d 537, 543 n.6 (E.D. Va. 1999)
(citations omitted).

47
under the direction and control of the Governor. See Va. Code Ann.
§ 2.1-51.7 (1995) ("The Secretary [of Natural Resources] shall hold
office at the pleasure of the Governor . . . ."); id. § 2.1-51.8:1 ("The
Secretary of Natural Resources shall be subject to direction and super-
vision by the Governor."); Va. Code Ann. § 10.1-1185 (1998) ("The
Department [of Environmental Quality] shall be headed by a Director
appointed by the Governor to serve at his pleasure for a term coinci-
dent with his own. The Director . . . shall, under the direction and
control of the Governor, exercise such power and perform such duties
as are conferred or imposed upon him by law and shall perform such
other duties as may be required of him by the Governor . . . .").

In sum, not only did Governor Gilmore conceive and engineer pas-
sage of the statutes, he has championed those statutory provisions
and, as is reflected in the Virginia Code, he possesses the direct
authority over his co-defendants to effect his clear aim of enforcement.2
2
In my view, the Governor's connection to the disputed statutory pro-
visions amply supports retaining him as a defendant in this case, even
under a stringent test for applying the Ex parte Young exception such
as that recently articulated by the Fifth Circuit. See Okpalobi v. Fos-
ter, No. 98-30228, 2001 WL 242485, at *8 (5th Cir. Mar. 12, 2001)
(en banc) (plurality opinion) ("[A]ny probe into the existence of a
Young exception should gauge (1) the ability of the official to enforce
the statute at issue under his statutory or constitutional powers, and
(2) the demonstrated willingness of the official to enforce the statute.").3
3

I respectfully dissent from the majority opinion on this point only.
_________________________________________________________________

2 Because this case does not squarely present the issue, I need not take
a position here on whether a governor's general duty to uphold the law,
without more, can be sufficient to invoke the exception to Eleventh
Amendment immunity found in Ex parte Young.

3 At the very least, I would, rather than rule in favor of the Governor
at this stage, remand this issue to the district court for a more extensive
examination of the Governor's relevant statutory and constitutional pow-
ers in relation to the factual underpinnings of this case. Cf. Lytle v. Grif-
fith, 240 F.3d 404, 410 (4th Cir. 2001) (where Eleventh Amendment
immunity raised for first time on appeal, exercising discretion to remand
the issue to the district court "to address in the first instance the relevant
questions of fact and state law").

48