Natl Solid Wst Mgmt v. Pine Belt Regn Solid ( 2004 )

  •                                                  United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                   REVISED NOVEMBER 17, 2004
                                                           October 29, 2004
                                                       Charles R. Fulbruge III
                     FOR THE FIFTH CIRCUIT                     Clerk
                         No. 03-60470
         Appeal from the United States District Court
           for the Southern District of Mississippi
    Before GARWOOD, WIENER and DeMOSS, Circuit Judges.
    GARWOOD, Circuit Judge:
         The Mississippi cities and counties that belong to the Pine
    Belt Regional Solid Waste Management Authority (the Authority)
    enacted solid waste flow control ordinances requiring that all
    solid waste collected within those cities and counties be disposed
    of at facilities owned by the Authority.               Plaintiffs-appellees,
    National Solid Wastes Management Association (NSWMA), BFI Waste
    Systems   of     Mississippi,    LLC   (BFI),    and   Waste    Management   of
    Mississippi, Inc. (Waste Management) (collectively, plaintiffs),
    filed this suit against defendants-appellants, the Authority and
    its member cities and counties, claiming that the flow control
    ordinances violated the dormant Commerce Clause.                  Defendants-
    appellants now timely appeal the judgment, rendered after a bench
    trial, declaring the flow control ordinance invalid under the
    dormant Commerce Clause and enjoining their enforcement.                     We
    dismiss plaintiffs’ complaint in part for want of standing and with
    respect to     the   remainder    we   reverse   and   render    judgment    for
                            Facts and Proceedings Below
         In   1989    and   1990,   several    cities   and   counties   in    South
    Mississippi developed a master plan for the management of the solid
    waste in the region.        The goal of the plan was to develop an
    environmentally-sensitive        and   cost-effective      program   for     the
    disposal of the region’s solid waste.              Among other things, the
    master plan recommended the creation of a regional solid waste
    management authority and the construction of a regional landfill.
    In 1992, the Authority was formed and the plan was adopted.                   At
    that time, the Authority was made up of five counties (Covington,
    Jones, Perry, Forrest, and Lamar) and three cities (Petal, Laurel,
    and Hattiesburg) in Mississippi (collectively, the Members).                  By
    the time this suit was filed, Forrest and Lamar Counties had
    withdrawn from the Authority.
          In 1992, the Authority issued a request for proposals (RFP) to
    interested parties, including plaintiffs BFI and Waste Management,
    regarding the regional landfill.           Proposals were to be given for
    two options: 1) to own, design, permit, build, and operate the
    landfill for thirty years or 2) to equip and operate the landfill
    for seven     years,   with   the   Authority    building    and   owning    the
    landfill. The RFP included an estimated volume of disposable solid
    waste that would be generated in the geographic area comprised by
    the Members1 and a statement that “[u]pon request, the Authority
            The 1992 RFP estimated the annual volume of disposable waste in the
    Region to be 153,000 tons. That estimate, however, was derived before Forrest
    and Lamar Counties withdrew from the Authority.        After these two counties
    withdrew (which was prior to July 2002), the projected volume of waste for the
    Authority’s Region would have been about 129,000–130,000 tons per year.
          When creating the master plan and issuing the RFP, the Authority
    contemplated, at least implicitly, that all solid waste generated within the
    Region would be disposed of at the landfill that was the subject of the RFP. The
    Authority’s landfill is, and always has been, the only “Subtitle D” landfill
    within the Region. A Subtitle D landfill is one that is compliant with federal
    regulations, issued pursuant to Subtitle D of the Resource Conservation and
    Recovery Act of 1976 (RCRA), 42 U.S.C. § 6941, et. seq., setting the criteria for
    sanitary landfills.
    will require each [Member] . . . to adopt and enforce a flow
    control ordinance in order to assure that the entirety of the . .
    . waste stream generated within the [geographic area comprised by
    the Members] will be managed and disposed of at the [Authority’s
    landfill].”    Five proposals were received, including from BFI and
    Waste Management.        Enviro, a company headquartered in Laurel,
    Mississippi, submitted the lowest bid for Option 2, but did not
    submit a bid for Option 1.            The Authority analyzed the bids,
    decided to own the landfill, and began implementation discussions
    with Enviro prior to actual contract negotiations.
          In 1996, the Authority issued revenue bonds to finance the
    construction of the landfill and three transfer stations.2             Also in
    1996, Enviro signed a contract with the Authority to operate the
    Authority’s landfill,3 located in Perry County and completed in
    1997, and transfer stations.        The initial term of the contract was
    for the life of the first landfill cell or seven years, whichever
    was less, and was to be automatically extended for one-year terms
    so long as both parties mutually agreed.            In 2000, the Authority
    refinanced the 1996 bonds and issued additional bonds to finance
    the construction of a second cell at the landfill.
            Waste collecting trucks often unload waste locally at a transfer station
    until the waste is transported to a landfill for final disposal.
           Enviro provides the labor, management, supplies, equipment, and insurance
    for the landfill and operates the scales and performs all maintenance at the
          The Authority generates revenue by collecting fees for the
    disposal of waste at its landfill and transfer stations.             Thus the
    Authority’s generation of revenue is based on the amount of garbage
    that it receives at its facilities.               To the extent that the
    Authority is unable to generate sufficient income to meet its debt
    payments, the Members are obligated to make up the shortfall.
          From the time the landfill opened, the volume of refuse that
    passed through and to the Authority’s facilities was significantly
    less than the total amount of potential waste generated in the area
    comprised by its Members.         Although the Authority’s issuance of
    bonds was based on a projected volume of 140,000 tons per year, in
    fiscal year 1998 the landfill’s volume had reached only 105,305
    tons and in fiscal year 1999, the volume dropped to 96,032 tons.
    In 1999, in an attempt to increase its trash collection, and
    therefore    its   revenue   generation,    the   Authority    extended    the
    service area of the landfill to include a total of 22 counties,
    which allowed the Authority to receive waste at its landfill from
    the additional counties which were not Members.4           While the volume
    of trash deposited at the landfill increased with the expanded
    service area, it reached a high of only 129,017 tons in fiscal year
            According to its contract with the Authority, Enviro was obligated to
    bring to the Authority’s landfill all the waste it collected within a 75-mile
    radius of the landfill.      The area comprised by the 22 counties roughly
    corresponds to this 75-mile radius. The flow control ordinances, however, apply
    only to the three counties and three cities that are Members of the Authority.
    When the Authority first created its plan for the landfill, the service area
    included only the five original member counties (Covington, Jones, Perry,
    Forrest, and Lamar); the expanded service area added an additional 17 counties.
    2000, with the tonnage decreasing thereafter (to 108,625 in 2001
    and to 95,205 in 2002).
          Due to an insufficient flow of rubbish through and to its
    facilities, the Authority realized that, at the current volume of
    waste, it would not be able to make its July 1, 2004 bond payment.
    Believing that its facilities needed more garbage to remain viable,
    the Authority adopted a resolution on July 10, 2002, directing its
    Members   to   adopt   flow   control       ordinances   requiring    that   all
    municipal solid waste generated within the then Member counties
    (Covington,    Jones   and    Perry)    and    cities    (Petral,   Laurel   and
    Hattiesburg) respectively [collectively, the Region] be transported
    to its landfill or one of its transfer stations.5                   Each Member
    enacted identical ordinances, each applicable only within the
    geographic area of the particular enacting Member, with September
    1, 2002, as the effective date.6              Each ordinance provided that
    noncompliance therewith would constitute a misdemeanor.
          Following the enactment of the ordinances, plaintiffs on
    August 29, 2002 filed this suit against the Authority and its
    Members, seeking declaratory, injunctive, and monetary relief under
            According to testimony at trial, the amount of trash currently leaving
    the Region is between 50,000 to 70,0000 tons per year; if this trash were
    directed to the Authority’s landfill, the tonnage disposed of at the landfill
    would likely be over 140,000, roughly the amount needed to meet the Authority’s
    debt obligations.
            The flow control ordinances were subsequently reenacted in September,
    October, and November of 2002.
    42 U.S.C. § 1983.7        Plaintiffs BFI and Waste Management collect,
    process, and dispose of commercial and residential solid waste and
    currently    ship   the    trash   they     collect    within    the    Region    to
    landfills and transfer stations that they either own and operate or
    that are owned and operated by affiliated companies.                   At the time
    of the suit, solid waste collected by BFI and Waste Management
    within the Region was and had been eventually transported to
    landfills outside of the Region, but within Mississippi; none of
    such waste was (or had been) transported outside of Mississippi
    (nor did any of it originate as waste outside of Mississippi).8
    The flow control ordinances would require that BFI and Waste
    Management dispose of waste they collect within the Region only at
    the Authority’s landfill in Perry County.
          After the filing of the complaint, the parties agreed that the
    enforcement of the ordinances would await the outcome of the case.
    In October 2002, the Mississippi State Attorney General intervened
    on behalf of Mississippi to defend a potential constitutional
    challenge    to   the     Mississippi     statute     pursuant   to     which    the
            Pine Belt Waste Systems, LLC, also joined with plaintiffs in bringing
    this suit. Pine Belt Waste, however, was voluntarily dismissed as a plaintiff
    on November 25, 2002, prior to trial.
            Although the Authority’s landfill is the only Subtitle D landfill within
    the Region, see supra note 1, the landfills to which BFI and Waste Management
    currently haul garbage generated within the Region are Subtitle D landfills. BFI
    currently hauls waste collected within the Region to its landfill in Madison
    County, Mississippi, and Waste Management hauls its waste to a landfill owned and
    operated by an affiliated company in Scott County, Mississippi.
    Authority was authorized to direct its Members to enact the flow
    control ordinances.       See MISS. CODE. ANN. § 17-17-319(2).
          Trial was held in December 2002 before the district judge
    without a jury.        After the trial, but before a decision was
    rendered, Perry County filed a motion to dismiss for lack of
    jurisdiction based on the “adequate state grounds” doctrine.                Also
    following the trial, the district judge recused himself on his own
    motion, and the matter was subsequently properly assigned, with
    consent of the parties, to a magistrate judge for decision.                   On
    April 23, 2003, the magistrate judge denied the motion to dismiss
    and   issued   findings    of   fact   and   conclusions     of   law   and   an
    accompanying      judgment,     deciding     that    the    ordinances      were
    unconstitutional under the dormant Commerce Clause and enjoining
    their enforcement.9      Defendants on May 22, 2003, timely filed their
    notice of appeal.
          Defendants contend that the flow control ordinances do not
    violate the dormant Commerce Clause.10              We dismiss the dormant
            No damages were awarded. While the judgment purports to generally award
    “attorneys fees,” no amount thereof is stated in the judgment (or in the findings
    and conclusions) and we are informed by the parties that plaintiffs have in
    substance waived attorneys fees under this judgment by failing to file any
    evidence of the amount of attorneys fees or any motion in connection therewith
    as contemplated in FED. R. CIV. P. 54(d)92) and the local rules.
              Defendants also contend that the district court lacked jurisdiction
    because plaintiffs did not appeal the Member counties’ and cities’ adoption of
    the ordinances to a state circuit court as authorized by Miss. Code Ann. 11-51-
    75. See Benedict v. City of Hattiesburg, 
    693 So. 2d 377
    , 380 (Miss. 1997); Falco
    Lime Inc. v. Mayor & Aldermen of City of Vicksburg, 
    836 So. 2d 711
    , 716 (Miss.
    2002). We reject that contention. The instant suit is one under 42 U.S.C. §
    Commerce Clause claim in part for lack of standing and reverse with
    respect to the remainder of the claim.
          A.    Standard of Review
          Review of questions of constitutional law is de novo.              United
    States v. Hemmingson, 
    157 F.3d 347
    , 355 (5th Cir. 1998).                     The
    magistrate judge’s findings of fact, however, are reviewed for
    clear error.     City of New Orleans v. Mun. Admin. Servs., Inc., 
    376 F.3d 501
    , 506 (5th Cir. 2004).
          B.    Dormant Commerce Clause Analysis
          Although the Commerce Clause is an affirmative grant of power
    to Congress, U.S. CONST. art I, § 8, cl. 3, the Supreme Court has
    interpreted the clause to contain a negative aspect, the so-called
    “dormant” Commerce Clause.        Dickerson v. Bailey, 
    336 F.3d 388
    , 395
    (5th Cir. 2003).     The dormant Commerce Clause “‘prohibits economic
    protectionism—that is, regulatory measures designed to benefit
    in-state      economic      interests       by    burdening       out-of-state
    competitors.’”      Id. (quoting Wyoming v. Oklahoma, 
    112 S. Ct. 789
    800 (1992)).
    1983 seeking declaratory and injunctive relief against local government
    ordinances adopted under color of state law on the ground that the ordinances are
    invalid under and contrary to the United States Constitution. See Dennis v.
    111 S. Ct. 865
     (1991); National Private Truck Council v. Oklahoma Tax
    115 S. Ct. 2351
    , 2353-54 (1995). “When federal claims are premised on 42
    U.S.C. § 1983 . . . we have not required exhaustion of state judicial or
    administrative remedies.” Steffel v. Thompson, 
    94 S. Ct. 1209
    , 1222 (1974). See
    also Self-Ins. Inst. of America, Inc. v. Korioth, 
    993 F.2d 479
    , 482 (5th Cir.
           We begin our dormant Commerce Clause analysis by asking
    whether     the     ordinances    “(1)    facially    discriminate       against
    out-of-state economic interests, or (2) regulate evenhandedly and
    thereby evince only an indirect burden on interstate commerce.”
    Dickerson, 336 F.3d at 396.            In other words, we ask whether the
    ordinances    “reflect[]     a    discriminatory      purpose     or   merely    a
    discriminatory effect.”          Id.   “Although . . . there is no clear
    line   of   separation    between      these   two”   classifications,       “the
    threshold    determination       is    significant    if   only    because      it
    establishes the constitutional standard of review.”               Id. (internal
    quotations and citations omitted).
           Regarding the first category, “[s]tate laws discriminating
    against interstate commerce on their face are virtually per se
    invalid.”    Id. (internal quotations and citations omitted).                The
    ordinance will be unconstitutional unless the state actor “can
    demonstrate, under rigorous scrutiny, that it has no other means to
    advance a legitimate local interest.” Id. (internal quotations and
    citations omitted).        “At a minimum such facial discrimination
    invokes the strictest scrutiny of any purported legitimate local
    purpose and of the absence of nondiscriminatory alternatives.”
    Hughes v. Oklahoma, 
    99 S. Ct. 1727
    , 1737 (1979). “Under this strict
    scrutiny, . . . the state bears the heavy burden to rescue its
    statutes.”        Dickerson, 336 F.3d at 396 (internal quotations and
    citations omitted).       “This burden is stringent” and the statute at
    issue is “generally struck down . . . without further inquiry.”
    Id. (internal quotations and citations omitted).
          With   the   second    category—the     “evenhanded     statutes”     that
    effectuate a legitimate local interest and that only incidentally
    affect interstate commerce—we apply the “Pike balancing test.” The
    statute will be upheld unless the burden it imposes on interstate
    commerce is “‘clearly excessive in relation to the putative local
    benefits.’” Id. (quoting Pike v. Bruce Church, Inc., 
    90 S. Ct. 844
    847 (1970)).
          The magistrate judge struck down the flow control ordinances,
    finding them to be to be facially discriminatory against interstate
    commerce. The magistrate judge also determined that the ordinances
    would not pass the Pike test, assuming arguendo, as defendants
    argued, that the ordinances were not facially discriminatory.
          C.     Plaintiffs’ Standing
          Before we consider the merits, we must first determine whether
    plaintiffs BFI and Waste Management have standing to challenge the
    flow control ordinances.11       Although defendants have not explicitly
    raised the issue of standing, we may consider it sua sponte.              Bauer
            As a not-for-profit trade association that represents the interests of
    the private waste services industry and of which BFI and Waste Management are
    members, plaintiff NSWMA’s standing is on this record entirely dependent upon
    whether BFI and Waste Management having standing. See Public Citizen, Inc. v.
    274 F.3d 212
    , 219 n.5 (5th Cir. 2001) (stating that “organizational
    standing requires, . . . that individuals have standing to sue in their own
    right”). NSWMA took absolutely no active role in this litigation and has not
    submitted anything to establish its standing independent of that of BFI and Waste
    v. Texas, 
    341 F.3d 352
    , 357 (5th Cir. 2003).           Our standing analysis
    consists of constitutional and prudential components.
                1.    Constitutional Standing
          “To meet the constitutional standing requirement, a plaintiff
    must show (1) an injury in fact (2) that is fairly traceable to the
    actions of the defendant and (3) that likely will be redressed by
    a favorable decision.”        Procter & Gamble Co. v. Amway Corp., 
    242 F.3d 539
    , 560 (5th Cir. 2001) (citing Bennett v. Spear, 
    117 S. Ct. 1154
    , 1161 (1997); Lujan v. Defenders of Wildlife, 
    112 S. Ct. 2130
    2136 (1992)).
          Plaintiffs meet the constitutional, or Article III, standing
    requirements.     Because of the flow control ordinances, plaintiffs
    will not be able to ship the garbage they collect within the Region
    to the landfills of their choice and, as a result, will be forced
    to pay a “tipping”12 fee at the Authority’s landfill.             Testimony at
    trial indicates that plaintiffs’ cost to dispose of waste at the
    Authority’s      landfill,    including      the   tipping     fee    and    the
    transportation cost, would be higher than their current cost.13
             In garbage parlance, “tipping” is used in place of the less-refined
             In addition to a simple comparison of current costs against the costs
    under the flow control ordinances, other testimony supports plaintiffs’ claim of
    higher costs.      The ordinances preclude plaintiffs from operating an
    “internalized” business—meaning that they collect, transport, and dispose of the
    waste using their own facilities. Testimony at trial suggests that such a method
    of operation achieves the best economy of scale for a waste collector. Further,
    BFI and Waste Management would face a reduced volume of waste at the transfer
    stations to which they currently haul waste from the Region, because they most
    likely cannot economically segregate at the transfer station the waste that comes
    from within the Region from that which comes from outside the Region. The result
    Thus, plaintiffs have an injury (higher operating costs) that is
    traceable to the ordinances enacted by defendants and which would
    be remedied if we rule that the ordinances are unconstitutional.
               2.    Prudential Standing
         The more difficult question is whether plaintiffs meet the
    prudential standing requirements.           The goal of the prudential
    standing requirements is to “determine whether the plaintiff ‘is a
    proper party to invoke judicial resolution of the dispute and the
    exercise of the court’s remedial powers.’”          Procter & Gamble, 242
    F.3d at 560 (quoting Bender v. Williamsport Area Sch. Dist., 
    106 S. Ct. 1326
    , 1334 n.8 (1986)).
         “These judicially created limits concern whether a
         plaintiff’s grievance arguably falls within the zone of
         interests protected by the statutory provision invoked in
         the suit, whether the complaint raises abstract questions
         or a generalized grievance more properly addressed by the
         legislative branch, and whether the plaintiff is
         asserting his or her own legal rights and interests
         rather than the legal rights and interests of third
         parties.” Procter & Gamble, 242 F.3d at 560.
         The key inquiry for prudential standing in this case is
    whether the injury of which plaintiffs complain is “arguably within
    the zone of interests to be protected” by the dormant Commerce
    Clause, the “constitutional guarantee in question” here.            Ass’n of
    Data Processing Serv. Orgs., Inc. v. Camp, 
    90 S. Ct. 827
    , 830
    (1970).   See also Boston Stock Exch. v. State Tax Comm’n, 97 S.Ct.
    of the reduced volume at the transfer stations would be an increased operating
    cost per ton.
    599, 603 n.3 (1977) (applying the zone of interests test in the
    context of the dormant Commerce Clause).           The facts of this case
    require that we analyze the zone of interest question in two parts:
    We must determine whether plaintiffs have standing to challenge the
    flow control ordinances as being facially discriminatory against
    out-of-state      economic   interests    or   whether   they   can   merely
    challenge   the    ordinances   as   being     excessively   burdensome   to
    interstate commerce.
                       a.   Facially Discriminatory
         The two-staged analysis for dormant Commerce Clause claims is
    instructive as to the relevant zone of interests to be protected.
    First, with respect to laws that facially discriminate against out-
    of-state economic interests, the dormant Commerce Clauses seeks to
    protect against local economic protectionism and retaliation among
    the states.    C & A Carbone, Inc. v. Town of Clarkstown, N.Y., 
    114 S. Ct. 1677
    , 1682 (1994) (“The central rationale for the rule
    against discrimination is to prohibit state or municipal laws whose
    object is local economic protectionism, laws that would excite
    those jealousies and retaliatory measures the Constitution was
    designed to prevent.”).       In this context, discrimination “simply
    means differential treatment of in-state and out-of-state economic
    interests that benefits the former and burdens the latter.” Oregon
    Waste Sys., Inc. v. Dep’t of Envtl. Quality of the State of Or.,
    114 S. Ct. 1345
    , 1350 (1994).
           We conclude that plaintiffs’ injury does not fall within the
    zone of interests to be protected by the dormant Commerce Clause
    with        respect   to   ordinances   that   are    alleged    to   facially
    discriminate against out-of-state economic interests.                 The flow
    control ordinances mandate that any waste generated within the
    Region be transported to the Authority’s landfill or transfer
    stations.        In effect, the ordinances prohibit the export of any
    waste outside of the Region, including out of state.                   However,
    these plaintiffs do not ship (and, so far as the record shows, have
    never shipped) any waste they collect within the Region to any
    location outside of Mississippi, nor do they ship (and, so far as
    the record shows, have never shipped) any waste from outside of
    Mississippi to the Region.         Plaintiffs also have not even alleged
    that they have any plans to do so,14 and have not suggested that
    some other party currently ships waste from the Region outside of
    Mississippi, or has plans to do so, or that any out-of-state waste
    processor receives (or has plans to receive) any of the Region’s
    waste out of state.         In sum, plaintiffs’ injury is not related to
            Stone County, a Mississippi county that is now within the Authority’s
    expanded service area, see supra note 4, has voted to join the Authority, and the
    Authority has agreed in principle; however, the required ultimate contract
    between the two had not been finalized by the time of the trial. Waste collected
    in Stone County by BFI is currently shipped to a landfill in Alabama. As Stone
    County has not enacted any flow control ordinance and is not a party to this suit
    (and as none of the here challenged ordinances is applicable to waste collected
    in Stone County), we will not consider the fact that waste from Stone County is
    actually shipped out of state.
    any   out-of-state     characteristic       of   their   business.15      Thus,
    plaintiffs do not have standing to challenge the ordinances on the
    basis of a claim that they are facially discriminatory against out-
    of-state interests.16      As such, we express no opinion about whether
    the ordinances would pass the facially discriminatory test if
    challenged by a proper plaintiff.
             We also observe that both BFI and Waste Management have their principal
    place of business in Mississippi. Nothing in the flow control ordinances turns
    on the principal place of business or the place of incorporation or the
    citizenship of any generator, disposer or handler of waste (or otherwise).
             We note that our conclusion that plaintiffs do not meet the prudential
    standing requirement differs from that in two opinions from our sister circuits.
    See On the Green Apartments LLC v. City of Tacoma, 
    241 F.3d 1235
     (9th Cir. 2001);
    Houlton Citizens’ Coalition v. Town of Houlton, 
    175 F.3d 178
     (1st Cir. 1999).
    In On the Green and Houlton, the plaintiffs did not allege that they disposed of
    their waste out of state or that they had plans to do so. On the Green, 241 F.3d
    at 1241–40; Houlton, 175 F.3d at 183. Nevertheless, both the Ninth Circuit and
    the First Circuit concluded that the plaintiffs met the prudential standing
          We disagree with the analysis in this aspect of On the Green and Houlton.
    In On the Green, the Ninth Circuit concluded that because the plaintiff alleged
    only an intrastate burden, the “Commerce Clause [was] not at all implicated.”
    On the Green, 241 F.3d at 1242. We fail to see how the plaintiff’s alleged
    injury could even arguably fall within the zone of interests to be protected by
    the dormant Commerce Clause when the court concluded that the case did not even
    implicate the Commerce Clause.     See id. at 1242 (Reavley, J., dissenting).
    Further, the Ninth Circuit seems to have confused the redressability requirement
    for constitutional standing with the zone of interests test. The Ninth Circuit
    concluded that the plaintiff’s injury was “related to the purposes underlying the
    Commerce Clause” because the “injury would be remedied if [the plaintiff] could
    take its garbage outside the city.” Id. at 1241 (emphasis added). The fact that
    an injury would be remedied if the ordinance was struck down does not mean that
    the grievance falls within the zone of interests to be protected by the dormant
    Commerce Clause, particularly when there was no allegation of any interstate
    burden.    Under the Ninth Circuit’s rationale in On the Green, the zone of
    interest test and the redressability requirement would essentially be the same.
          In Houlton, the First Circuit concluded that the plaintiff met the zone of
    interests requirement because the plaintiff had “assert[ed] his own economic
    interests under the Commerce Clause—a constitutional provision specifically
    targeted to project those interests.” Houlton, 175 F.3d at 183. However, the
    rationale behind the dormant Commerce Clause is to protect against local economic
    protectionism at the expense of out-of-state interests, Carbone, 114 S.Ct. at
    1682, not to protect any economic interests. In our opinion, the Houlton court
    simply viewed too broadly the zone of interests protected by the dormant Commerce
                        b.    Burdens Interstate Commerce
          We next consider whether plaintiffs nonetheless have standing
    to challenge the flow control ordinances on the basis of the claim
    that they excessively burden interstate commerce. We conclude that
    plaintiffs do meet the zone of interests test in this regard and
    thus have standing to challenge the ordinances as to their burden
    on interstate commerce.
          The    protected    against       injury   is   an    excessive      burden       on
    interstate commerce.       An allegation that the plaintiff is involved
    in interstate commerce and that the plaintiff’s interstate commerce
    is burdened by the ordinance in question is sufficient to satisfy
    the   zone    of    interests    test    with    respect        to   ordinances       that
    assertedly impose an excessive burden on interstate commerce.
          Even though plaintiffs do not ship any garbage collected in
    the Region out of state, they are engaged in interstate commerce,
    and   their    interstate       commerce    is   allegedly           burdened    by    the
    ordinances.        A representative of BFI testified at trial that BFI
    had   some    contracts    that    are    negotiated       on    a    national    or    an
    interstate basis and that such contracts were common.                            The BFI
    representative testified that an effect on the Mississippi portion
    of such a contract would ripple to the portion of the contract in
    other states.17       Plaintiffs argue that, because the flow control
              It is not claimed that anything in the contracts requires that any
    waste collected within the Region be disposed of outside of the Region. Nor do
    the ordinances make any requirement that any waste collected outside the Region
    (though under a contract also covering waste collected within the Region) be
    ordinances will raise their costs to service these national and
    regional contracts which include customer locations within the
    Region, they will be relatively less competitive within the Region
    and that this impact on these contracts will extend to the portion
    of    the    contracts    covering    customer     locations      outside    of
    Mississippi.      The ordinances thus allegedly burden plaintiffs’
    interstate commerce.      Plaintiffs therefore are arguably within the
    appropriate zone of interests and, therefore, have standing to
    challenge whether the ordinances excessively burden interstate
          D.     Pike Balancing Test
          We now turn to the Pike balancing test to determine whether
    the   flow    control    ordinances      excessively     burden    interstate
    commerce.19     For this analysis, because plaintiffs do not have
    standing to challenge the ordinances as facially discriminatory
    disposed of within the Region.
             A Waste Management representative gave testimony similar to that given
    by the BFI representative.      He testified that the parent company, Waste
    Management, Inc., operated in 48 states and that because of the interrelated
    nature of the business, savings achieved on a transaction in one state would
    eventually be shared in another stated. Although the representative did not
    testify that increased costs in one area would be similarly shared, we assume
    arguendo that they would be.
          In any event, when one of multiple co-parties raising the same claims and
    issues properly has standing, we do not need to verify the independent standing
    of the other co-plaintiffs. See Clinton v. City of New York, 
    118 S. Ct. 2091
    2100 n.19 (1998); Bowsher v. Synar, 
    106 S. Ct. 3181
    , 3185 (1986). Therefore,
    because we find that BFI has standing to challenge whether the flow control
    ordinances excessively burden interstate commerce, we need not further analyze
    Waste Management’s independent standing.
             Because the magistrate judge alternatively held that the ordinances
    would not pass even the less rigorous Pike test, we need not remand the case for
    the court below to consider the Pike test in the first instance.
    against   out-of-state   interests,    we   ignore   the   fact    that   the
    ordinances would not permit them to ship waste generated within the
    Region out of state.
           An “evenhanded” ordinance, i.e., one that does not facially
    discriminate against out-of-state interests and only incidentally
    affects interstate commerce, will be upheld unless the burden it
    imposes on interstate commerce is “clearly excessive in relation to
    the putative local benefits” of the ordinance.         Pike, 90 S.Ct. at
    847.   To make this assessment, we consider the nature of the local
    interest and whether alternative means could achieve that interest
    with less impact on interstate commerce:
           “If a legitimate local purpose is found, then the
           question becomes one of degree. And the extent of the
           burden that will be tolerated will of course depend on
           the nature of the local interest involved, and on whether
           it could be promoted as well with a lesser impact on
           interstate activities.” Id.
           We first look for a legitimate public purpose that defendants
    intended to advance by implementing flow control.                 Defendants
    indeed have a legitimate local purpose: to ensure the economic
    viability of their landfill.      See U & I Sanitation v. City of
    205 F.3d 1063
    , 1070 (8th Cir. 2000) (recognizing economic
    viability as a legitimate local purpose in the context of a waste
    flow control ordinance).
           Next, we identify the burden imposed on interstate commerce.
    To succeed in a challenge to a regulation under the Pike balancing
    test, the challenging party must show that the regulation has “a
    disparate    impact    on   interstate     commerce.”     Automated      Salvage
    Transp., Inc. v. Wheelabrator Envtl. Sys., Inc., 
    155 F.3d 59
    , 75
    (2d Cir. 1998).       The “incidental burdens to which Pike refers are
    the burdens on interstate commerce that exceed the burdens on
    intrastate    commerce.”       Id.   (internal      quotation    and     citation
    omitted).    “Where a regulation does not have this disparate impact
    on interstate commerce, then we must conclude that . . . [it] has
    not imposed any incidental burdens on interstate commerce” and,
    therefore, that it passes the Pike test.            Id. (internal quotation
    and citation omitted).
         The flow control ordinances here do not have a disparate
    impact on interstate commerce; consequently, plaintiffs fail in
    their attempt to show that the ordinances do not pass the Pike
    test.   The only evidence of an interstate burden is the effect on
    plaintiffs’ interstate contracts: the flow control ordinances,
    because they will raise plaintiffs’ costs within the Region and
    will make plaintiffs relatively less competitive, impose a burden
    on plaintiffs’ interstate commerce by affecting the portion of
    plaintiffs’    interstate      contracts     that    involve     areas     beyond
    Mississippi.    The burdens imposed by the ordinances on interstate
    commerce, however, are no greater than those imposed on intrastate
    commerce.       Plaintiffs’      contracts     that     are     wholly    within
    Mississippi, and even wholly within the Region itself, will also be
    affected as plaintiffs’ costs increase within the Region and
    plaintiffs, thereby, become relatively less competitive.                In fact,
    the burden imposed on wholly intrastate contracts, particularly
    those that are contained wholly within the Region, will likely be
    greater than      that    imposed    by   the    flow    control   ordinances   on
    plaintiffs’ interstate contracts.              The interstate contracts—which
    are presumably larger than plaintiffs’ contracts that are contained
    entirely within Mississippi or the Region—will likely be more able
    to spread the increased costs over a wider base of business than
    will plaintiffs’ smaller contracts.                 We fail to see how the
    ordinances   will    in    this     respect     impose   a   greater   burden   on
    interstate commerce than they will on intrastate commerce.
         Moreover, so far as they affect BFI and Waste Management, the
    ordinances do not inhibit the flow of goods (or waste) interstate.
    Int’l Truck & Engine Corp. v. Bray, 
    372 F.3d 717
    , 727 (5th Cir.
    2004) (“A statute imposes a burden when it inhibits the flow of
    goods interstate.”).        Furthermore, while the ordinances may have
    the effect of shifting some business away from plaintiffs, as the
    ordinances increase their costs and make them relatively less
    competitive, this result does not mean that the ordinances burden
    interstate commerce: “[T]he dormant Commerce Clause ‘protects the
    interstate market, not particular interstate firms.’” Id. (quoting
    Exxon Corp. v. Governor of Md., 
    98 S. Ct. 2207
    , 2215 (1978))
    (stating   that    the    fact    that    a    regulation    might   cause   truck
    purchasers to turn to other competing truck manufacturers did not
    burden interstate commerce).              If plaintiffs lose some of their
    interstate contracts because of their higher costs within the
    Region, the ordinances would not prohibit another garbage collector
    from entering into a similar interstate contract, whether that
    garbage collector was from Mississippi or some other state.
          Because    plaintiffs        have   not   shown    that     the   ordinances
    disparately     impact   interstate       commerce     relative    to   intrastate
    commerce, their Pike challenge that the ordinances excessively
    burden interstate commerce fails.
          Accordingly, (a) we DISMISS for want of standing plaintiffs’
    claim with respect to whether the ordinances facially discriminate
    against interstate commerce or out-of-state interests, and (b) with
    respect to whether the ordinances otherwise excessively burden
    interstate      commerce,     we     REVERSE     and    RENDER     judgment   for
             In his opinion the magistrate judge did not reach any conclusion
    regarding MISSISSIPPI CODE § 17-17-319(2), the law pursuant to which the Authority
    directed its Members to enact flow control ordinances, the judgment does not
    speak to § 17-17-319(2) and the parties do not argue that this court need address
    its constitutionality. Moreover, as we hold that as to the particular flow
    control ordinances here the suit must be dismissed for want of standing with
    respect to whether the ordinances are facially discriminatory against interstate
    commerce contrary to the dormant Commerce Clause and that those ordinances do not
    violate the dormant Commerce Clause with respect to whether they otherwise
    excessively burden interstate commerce compared to their putative local benefits,
    we need not further address the constitutionality of § 17-17-319.