City's Reponse in Opposition To Flow Control Injuncition

Case 3:11-cv-03200-O Document 73
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION, et al., Plaintiffs, v. THE CITY OF DALLAS, et al., Defendants.
CIVIL ACTION NO. 3:11-cv-03200-O ECF
DEFENDANTS RESPONSE IN OPPOSITION TO PERMANENT INJUNCTION Respectfully submitted, THOMAS P. PERKINS, JR., CITY ATTORNEY OF THE CITY OF DALLAS, TEXAS Peter B. Haskel Executive Assistant City Attorney Texas Bar No. 09198900 James B. McGuire Assistant City Attorney Texas Bar No. 24055939 Christopher J. Caso Senior Assistant City Attorney Texas Bar No. 03969230 City Hall 7BN 1500 Marilla Street Dallas, TX 75201 Tel.: (214) 670-3519 Fax: (214) 670-0622 peter.haskel@dallascityhall.com chris.caso@dallascityhall.com james.mcguire@dallascityhall.com ATTORNEYS FOR DEFENDANTS
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TABLE OF CONTENTS I. II. INTRODUCTION ...............................................................................................................1 STATEMENT OF FACTS ..................................................................................................4 A. The History and Future of the Citys Waste Management. .....................................4 1. 2. B. C. III. IV. The Franchise Ordinances Granted by the City in 2007. .............................6 The Flow Control Ordinance. ......................................................................8
Citys Meeting with Stakeholders on Ordinance and Plaintiffs Interference of Same. .............................................................................................12 Administrative Directive Regarding the Ordinance. .............................................12
PROCEDURAL HISTORY...............................................................................................13 APPLICABLE LEGAL AND EQUITY STANDARDS ...................................................15 A. Pleading and Proof Elements for Claims. ..............................................................15 1. 2. B. C. D. Business Entity Plaintiffs Must Plead and Prove Standing for Each Claim. .........................................................................................................15 The Association Plaintiffs Must Plead and Prove That They Have Standing. ....................................................................................................15
Jurisdictional and Equity Principles Elements for Enjoining Enforcement of the Entire Severable Ordinance. ........................................................................16 Traditional Equity Standards for Issuance of Permanent Injunction. ....................17 Official Immunity Elements. .................................................................................17
V.
ARGUMENT .....................................................................................................................18 A. B. The Associational Plaintiffs Neither Plead nor Prove the Elements for Associational Standing And They Had to Do Both. ...........................................18 Lack of Standing Recurs Throughout the Claims as to the Business Entity Plaintiffs. ................................................................................................................19 1. Non-Franchisee Plaintiffs Lack Standing Under The Contracts Clause, the Due Course of Law Clause, and the Procedural Provisions of the City Charter and Code and the Franchisee Plaintiffs have Failed to Prove any Injury that Would Give Them Standing. ....................................................................................................20
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2. C.
The Requested Injunction Improperly Ignores Severability of Ordinance. ..................................................................................................20
Plaintiffs Request For a Permanent Injunction Should Be Denied Because Plaintiffs Cannot Prevail on the Merits of their Remaining Claims. .....................21 1. Plaintiffs Claim Under the Contract Clause of the U.S. Constitution Fails Because Plaintiffs Have No Right of Disposal, And Even if Such a Right Did Exist, the Ordinance Does Not Violate the Contracts Clause. .....................................................................21 The Ordinance Does Not Violate the Texas Constitutions Due Course Of Law Provision Because the Ordinance is a Reasonable and Legitimate Exercise of the Citys Police Power. ................................29 Plaintiffs Are Incorrect That There Is Any Conflict, Much Less A Direct Conflict, Between State Law And The Ordinance..........................31 An Ordinary Delegation Asking An Expert Administrator To Define A Narrow Term In A Complex Statute Is A Wholly Proper Delegation As A Matter Of Law. ...............................................................37 The Ordinances Use Of Intelligible LanguageAs Further Clarified By Agency DirectiveIs Not At All Vague As Applied Here. ...........................................................................................................39 The City Charter Did Not Require Notice Or Hearings Before Adopting This PolicyBut Notice And Hearings Were Provided Anyway. .....................................................................................................40
2.
3. 4.
5.
6.
D. E. F.
Because Plaintiffs Purely Economic Harm Is Readily Quantifiable, There Is No Threat Of Any Irreparable Injury, Much Less A Substantial One. ..............42 Because the Citys Anticipated Injury Trumps Plaintiffs Purported Harm, the Balance of Interests Tips Sharply in the Citys Favor. ....................................44 The Public Interest Is Already Reflected By An Ordinance Enacted By The Entity Tasked With Protecting The PublicEnjoining That Enactment To Further Plaintiffs Narrow Self-Interest Will Not Serve The Public Interest. .......................................................................................................45
VI.
TRADITIONAL EQUITY FACTORS REQUIRE DENIAL OF PERMANENT INJUNCTION ....................................................................................................................46 A. B. Penal Ordinance Provides Adequate Remedy At Law By Allowing Franchisees To Defend Against Criminal Prosecution. .........................................46 Plaintiffs Are Not Entitled to Equitable Relief Enjoining Every Portion of the Ordinance for Anyone and Everyone...............................................................47
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1. 2. 3. 4. C.
Future Franchisees and Consenting Franchisees Will Have No Grounds For Complaint About The Ordinance. ........................................48 Portions of Ordinance not Subject to Specific Claims...............................48 Only Two Plaintiffs Are Franchisees. ........................................................48 Plaintiffs fail to request equitable relief in reasonably specific terms. ..........................................................................................................48
The Court Must Respect The Democratic Process And Not Enjoin The Enforcement Of Ordinances Because Doing So Is Not Necessary And Not In The Public Interest. ............................................................................................49 Individual Defendants are Immune. .......................................................................50
D. VII.
CONCLUSION ..................................................................................................................50
TABLE OF AUTHORITIES
Cases Allen v. Wright, 468 U.S. 737 (1984) ........................................................................................... 15 Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978) ............................................... 21, 25 Am. Power & Light Co. v. S.E.C., 329 U.S. 90 (1946) ................................................................. 37 Ass'n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d 547 (5th Cir. 2010)......................................................................................................................................... 16 Boyle v. Landry, 401 U.S. 77 (1971) ............................................................................................ 47 Burch v. City of San Antonio, 518 S.W.2d 540 (Tex. 1975)......................................................... 32 C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994) ............................................... 23 Cent. Ambulance Serv., Inc. v. City of Dallas, 631 F. Supp. 366 (N.D. Tex. 1986) .................... 32 Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) ..................................... 37 City of Beaumont v. Fall, 291 S.W. 202 (Tex. 1927) ................................................................... 34 City of Brookside Village v. Comeau, 633 S.W.2d 790 (Tex. 1982) ............................................ 34
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City of Chicago v. Morales, 527 U.S. 41 (1999) .................................................................... 40, 47 City of Dallas v. FCC, 118 F.3d 393 (5th Cir. 1997) ..................................................................... 6 City of La Marque v. Braskey, 216 S.W.3d 861 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) ............................................................................................................................... 47 City of Univ. Park v. Benners, 485 S.W.2d 773 (Tex. 1972) ..................................................... 1, 8 City of Wichita Falls v. Abell, 566 S.W.2d 336 (Tex. 1978) ........................................................ 31 Coffee City v. Thompson, 535 S.W.2d 758 (Tex. Civ. App.Tyler 1976, writ refd n.r.e.)......................................................................................................................................... 38 Council 31 of the Am. Fed'n of State, Cnty. & Mun. Employee v. Quinn, No. 113111, 2012 WL 1758807 (7th Cir. May 17, 2012)............................................................................. 29 Dallas Merchants & Concessionaires Association v. City of Dallas, 852 S.W.2d 489 (Tex. 1993) ............................................................................................................................... 31 Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328 (5th Cir. Nov. 1981) ................... 44 Dombrowski v. Pfister, 380 U.S. 479 (1965) .......................................................................... 46, 47 Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) ............................................................................ 43 Douglas v. City of Jeannette, 319 U.S. 157 .................................................................................. 47 eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)............................................................ 17 Energy Reserves Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400 (1983) ...................... 25, 26 FCC v. Beach Commcns, Inc., 508 U.S. 307 (1993) ................................................................... 30 Fernandes v. Limmer, 663 F.2d 619 (5th Cir. Dec. 1981)............................................................ 40 Gen. Motors Corp. v. Romein, 503 U.S. 181 (1992) .................................................................... 22 Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962)................................................................ 49 Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999) ....... 17, 47 Hamilton v. Bank of Blue Valley, 746 F. Supp. 2d 1160 (E.D. Cal. 2010) ................................... 16 Harrington v. Colquitt Cnty. Bd. of Educ., 449 F.2d 161 (5th Cir. 1971) .................................... 18 Holland v. City of Houston, 41 F. Supp. 2d 678 (S.D. Tex. 1999) ............................................... 18 Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934) ....................................................... 21 House the Homeless, Inc. v. Widnall, 94 F.3d 176 (5th Cir. 1996) .............................................. 21 Humana, Inc. v. Jacobson, 804 F.2d 1390 (5th Cir. 1986)........................................................... 43 Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333 (1977) ................................................ 16 In re Sanchez, 81 S.W.3d 794 (Tex. 2002) ............................................................................. 31, 33
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John Doe #1 v. Veneman, 380 F.3d 807 (5th Cir. 2004) ........................................................ 20, 49 JWJ Indus., Inc. v. Oswego Cnty., 795 F. Supp. 2d 211 (N.D.N.Y. 2011) ................................... 38 Kentucky v. Graham, 473 U.S. 159 (1985) ................................................................................... 18 Kolender v. Lawson, 461 U.S. 352 (1983).................................................................................... 40 Leibowitz v. City of Mineola, Tex., 660 F. Supp. 2d 775 (E.D. Tex. 2009) .................................. 34 Lipscomb v. Columbus Mun. Separate Sch. Dist., 269 F.3d 494 (5th Cir. 2001) ......................... 28 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................... 15 Mid-Am. Waste Sys., Inc. v. City of Gary, Ind., 49 F.3d 286 (7th Cir. 1995) ............................... 27 Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618 (5th Cir. 1985) ................ 42 MJRs Fare of Dallas, Inc. v. City of Dallas, 792 S.W.2d 569 (Tex. App.Dallas 1990, writ denied)..................................................................................................................... 31 Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992)........................................................ 42 Murray v. Charleston, 96 U.S. 432 (1877) ................................................................................... 26 Natl Solid Waste Mgmt. Assn., et al. v. Pine Belt Reg'l Solid Waste Mgmt. Auth., 389 F.3d 491 (5th Cir. 2004) .................................................................................................... 27 Ne. Fla. Chapter of Assn of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283 (11th Cir. 1990) ....................................................................................................... 49 PCI Transp. Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535 (5th Cir. 2005)............................. 44 Price v. City of Junction, Tex., 711 F.2d 582 (5th Cir. 1983). ..................................................... 41 R.R. Commn of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619 (Tex. 2011) ........................................................................................................................ 37 Rizzo v. Goode, 423 U.S. 362 (1976)............................................................................................ 15 Roark & Hardee LP v. City of Austin, 522 F.3d 533 (5th Cir. 2008) ........................................... 39 Sal Tinnerello & Sons, Inc. v. Town of Stonington, 1997 U.S. Dist. LEXIS 21351 (D. Conn. Aug. 26, 1997) ............................................................................................................... 42 State v. Morales, 869 S.W.2d 941 (Tex. 1994)............................................................................. 47 Stefanelli v. Minard, 342 U.S. 117 (1951) .................................................................................... 47 Sw. Airlines Co. v. Tex. Int'l Airlines, Inc., 546 F.2d 84 (5th Cir. 1977) ...................................... 18 Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) ........................................................................... 17 Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454 (Tex. 1997) ................ 37 Tex. Power & Light Co. v. City of Garland, 431 S.W.2d 511 (Tex. 1968) .................................. 30
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U.S. Trust Co. of N.Y. v. New Jersey, 431 U.S. 1 (1977)........................................................ 22, 25 United Haulers Assn, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330 (2007) ......................................................................................................................... passim United Healthcare Ins. Co. v. Davis, 602 F.3d 618 (5th Cir. 2010) ............................................. 25 United States v. Mazurie, 419 U.S. 544 (1975) ............................................................................ 39 United States v. State of Tex., 523 F. Supp. 703 (E.D. Tex. 1981) ............................................... 17 Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981)........................................................................... 3 Univ. of Texas Med. Sch. At Houston v. Than, 901 S.W.2d 926 (Tex. 1995) .............................. 29 Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ................. 39, 40 VRC LLC v. City of Dallas, 460 F.3d 607 (5th Cir. 2006)............................................................ 17 W.B. Worthen Co. v. Kavanaugh, 295 U.S. 56 (1935) ................................................................. 26 Warth v. Seldin, 422 U.S. 511 (1975) ..................................................................................... 15, 16 Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ................................................................. 49 Whitman v. Am. Trucking Assns, 531 U.S. 457 (2001) ............................................................... 39 Wis. Cent. v. Pub. Serv. Commn of Wis., 95 F.3d 1359 (7th Cir. 1996)...................................... 42 Constitutional Provisions Tex. Const. art. I, 19 .................................................................................................................. 29 U.S. Const. Amend. X .................................................................................................................. 45 U.S. Const. art. I, 10, cl. 1 .......................................................................................................... 21 Statutes 42 U.S.C. 6901(a)(4) .................................................................................................................. 26 Tex. Health & Safety Code 363.003 ............................................................................................ 6 Tex. Health & Safety Code 363.004(19) ................................................................................... 32 Tex. Health & Safety Code 363.111(a) ........................................................................... 4, 31, 32 Tex. Health & Safety Code 363.117 ...................................................................................... 4, 32 Regulations 30 Tex. Admin. Code 328.2 ................................................................................................. 33, 36
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30 Tex. Admin. Code 328.2(2) .................................................................................................. 33 30 Tex. Admin. Code 328.2(3) ............................................................................................ 13, 35 30 Tex. Admin. Code 328.8(e) .................................................................................................. 13 30 Tex. Admin. Code. 328.4(d) ................................................................................................. 33 Other Authorities 27 Tex. Reg. 8569-70 (September 12, 2002) ................................................................................ 36 City of Dallas, Texas, Charter, Ch. XIV, 7 ................................................................................ 41 City of Dallas, Texas, Code 18-10(a)(1)(B)(ii) ........................................................................... 9 City of Dallas, Texas, Code 18-10(b) ........................................................................................ 36 City of Dallas, Texas, Code 18-40 ............................................................................................. 48 City of Dallas, Texas, Code 1-4 ................................................................................................. 48 Fed. R. Civ. P. 65(d)(2)(B) and (C) .............................................................................................. 18 Eric Peterson & David Abramowitz, Municipal Solid Waste Flow Control in the PostCarbone World, 22 Fordham Urb. L.J. 361 (1995) .................................................................... 6 U.S. EPAs Report to Congress: Flow Controls and Municipal Solid Waste, EPA Doc. No. 530-R-95-008 ............................................................................................................ 32 U.S. EPAs Report to Congress: Flow Controls and Municipal Solid Waste, EPA Doc. No. 530-R-95-008, dated March 1995 ............................................................................. 46
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DEFENDANTS RESPONSE IN OPPOSITION TO PERMANENT INJUNCTION TO THE HONORABLE COURT: Defendants respond as follows in opposition to Plaintiffs Brief in Support of Permanent Injunction, ECF No. 68 (Pls. Brief or Brief): I. INTRODUCTION
There is no constitutional right to operate a landfill. The Dallas City Council properly passed an Ordinance that directs all solid waste in the City to be disposed of in a municipal landfill. This is classic social and economic legislation in an area of traditional governmental concern, and represents a proper exercise of the Citys police power. The Supreme Court itself has warned against judicial interfere[nce] in precisely this context because [w]aste disposal is both typically and traditionally a local government function. United Haulers Assn, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 344 (2007) (internal quotation marks omitted). Plaintiffs nevertheless insist that this was nothing more than the City acting in a proprietary capacity to advance its own economic self-interest. They ignore all of the public health and welfare reasons listed explicitly in the Ordinance itself and recounted in painstaking detail in the legislative record and in the affidavits and testimony of City employees. Plaintiffs various attempts to undercut this legitimate policy determination are without merit. Plaintiffs look to the Contract Clause, but can only assert a right found nowhere in a 42page contract, while ignoring explicit franchise language that confirms that Plaintiffs bear the risk of regulatory change and that the Citys franchises only apply to conduct within the City, and state law that denies any vested property right to use specific property for any specific purpose. See City of Univ. Park v. Benners, 485 S.W.2d 773, 778 (Tex. 1972). Plaintiffs also purport to identify preemptive conflicts with state law that simply do not exist; and they
DEFENDANTS RESPONSE IN OPPOSITION TO PERMANENT INJUNCTION Page 1
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ultimately ask this Court to subject garden-variety public policy to a searching review reserved exclusively for cases implicating fundamental rights and suspect classes, which this indisputably is not1leaving the Ordinance valid even if based solely on economic interests. Plaintiffs views are also ultimately incompatible with the Supreme Courts own assessment of flow control in United Haulers, where the Court discussed the extensive benefits of flow control and the public interest involved, the important police powers at issue, the traditional and typical role of government in regulating waste disposal, and the political consideration that the harm of expensive trash removal falls on the very people who voted for the lawsmeaning that the democratic process itself, not the judiciary, is the appropriate restraint on state action. 550 U.S. at 342-45. All of these circumstances exist for the City as well. Plaintiffs are seeking injunctive relief regardless of the fact that most of them lack standing to make or benefit from their asserted claims even if their legal arguments were valid. Moreover, the individual defendants are immune from the injunctive relief that Plaintiffs seek. Also, Plaintiffs ask for a permanent injunction even though traditional equity factors weigh heavily against granting permanent injunctions in this case, especially since they seek to enjoin enforcement of a penal ordinance. Further, Plaintiffs argue that the Courts temporary injunction should serve as the template for a permanent injunction despite the many formal and substantive defects in the temporary injunction, as specified below.
See Mid-Am. Waste Sys., Inc. v. City of Gary, Ind., 49 F.3d 286, 291 (7th Cir. 1995) (Depositing garbage in landfills is not exactly a fundamental right, either. Disposition of waste is a highly regulated industry. A claim that the Constitution protects this industry from public controleven when the landfill is public propertywould bring nothing but belly laughs.).
DEFENDANTS RESPONSE IN OPPOSITION TO PERMANENT INJUNCTION
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Finally, by failing to include in their Permanent Injunction Brief any support for several claims that they asserted in their First Amended Complaint (ECF No. 36) (Complaint or Compl.), Plaintiffs have abandoned their claims for permanent injunction based on theories of (1) violation of the Contracts Clause of the Texas Constitution (Compl. 44-47 Count 2); (2) improper tax (Compl. 52-56 Count 4); and (3) federal Sherman Act antitrust violation (Count 10, Compl. 77-85 Count 10). Therefore Defendants will only respond to the claims for permanent injunction that Plaintiffs have not abandoned. Furthermore, Plaintiffs attempt (Pls. Brief Part II.A.1.b through A.1.d at 5-7) to rely on findings or conclusions stated in the Order Granting Preliminary Injunction (ECF No. 53) is unavailing. The provisions of the Order are merely interlocutory and cannot substitute for evidence on consideration of the merits. See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.) The stakes here are high: Plaintiffs are asking the Court to presume that the City assigned away its sovereign power to decide the location of waste disposal in the City for the twenty-year duration of the franchise agreements, and to conclude that the Constitution precludes the City from enacting ordinary social and economic legislation. Plaintiffs further make an unsupported and overly broad request to this Court for a permanent injunction making the Ordinance void as to all, not just those with franchise agreements. There is nothing, however, in the franchise agreements or the Constitution that supports Plaintiffs request. This is precisely the kind of issue properly left to the political process, and the federal judiciary has no obvious role in declaring the proper waste-management policies of a Texas municipality. Plaintiffs are
profoundly wrong to insist that the federal judiciary inject itself in the middle of this local policy issue.
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II. A.
STATEMENT OF FACTS
The History and Future of the Citys Waste Management. A city cannot function without a place to safely and effectively store and manage its
waste. Because waste management is central to public health and welfare, it is unsurprising that [w]aste disposal is both typically and traditionally a local government function. United
Haulers, 550 U.S. at 344 (internal quotation marks omitted). Effective waste management requires public coordination, collective action, administrative oversight, predictability, and sufficient resources, from a secure and reliable waste stream, to invest in transformative technologiesthose which now offer the promise of recovering and reusing the vast majority of waste. Home-rule cities, such as Dallas, are authorized under the Texas Constitution to regulate the disposal of waste in their localities. The Texas Legislature has also explicitly authorized municipalities to tackle waste management: cities are permitted to adopt rules for regulating solid waste collection, handling, transportation, storage, processing, and disposal, Tex. Health & Safety Code 363.111(a), and to operate a solid waste management system, id. 363.117. In 1980, the City of Dallas recognized the necessity of long-range planning to ensure its ability to provide adequate capacity for residential and commercial waste. The keystone of that planning was the construction and operation of the McCommas Bluff Landfill. The City envisioned that the use of that landfill, together with the operation of private landfills, would protect residents and satisfy the Citys existing waste-management needs. Currently, the City operates McCommas Bluff and accepts nonhazardous solid waste loads from a variety of customer bases, including residences and commercial businesses. Solid waste is processed for diversion or ultimate disposal. The City diverts scrap tires, metals, plastics, glass, electronics,
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and yard waste from the waste stream at McCommas Bluff for reuse or recycling. Nix Depo. 10:18-14:21; Nix Aff. (ECF Doc. 22) 17-20.2 The City similarly diverts recyclable and reusable materials at its waste transfer stations. Nix Depo. 15:10-22. In fiscal year 2010 alone, the City diverted 136,250 tons of material for reuse. Nix Aff. 17. Today, however, the Citys long-term waste management goals extend beyond simply landfills; the City aims to make landfills obsolete by using emerging technologies to reuse the Citys solid waste in the form of energy, fuels, and reusable products. See, e.g., Nix Aff. Ex. D. The City has been studying options for achieving this goal for years (see Nix Depo. 62:3-22, 67:10-68:19, 73:7-22, 77:6-13; Nix Aff. 22-26), and the Citys regulatory program, at issue in this lawsuit, is necessary for the City to implement green technology and to promote the most efficient use of City resources. Cutting-edge biotechnology and resource recovery requires a high-volume and predictable stream of waste to operate in a practical and economical matter. With the growing use of recycling, and fluctuations in the volume of waste, the City cannot implement these crucial new initiatives without confidence that its waste flow will continue at sufficiently high levels to support the new technology. Flow control is an appropriate means of securing sufficient volume of waste to achieve requisite economies of scale. Nix Depo. 30:8-14. Flow control will also secure necessary revenue for covering the expenses associated with the Citys solid waste regulatory program including: operation of McCommas Bluff; the planned construction and operation of City resource recovery facilities; the planned construction and operation of a compost facility at McCommas Bluff; and a sinking fund for closure and postclosure care at McCommas Bluff. Nix Aff. 26. The upshot is that the added cost to waste
During the hearing on the application for temporary injunction, Defendants submitted into the record by hand two binders with designations from the depositions of Mary Nix (Nix Depo.), James Lattimore (Lattimore Depo.), Lynn Lantrip (Lantrip Depo.), Nicholas Stefkovich (Stefkovich Depo.), and Jody McCord (McCord Depo.).
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haulers, including some of the Plaintiffs, is likely to be nil. City technical staff, including McCommas Bluff manager Rick White, performed a detailed analysis of waste hauling routes and determined that the cost to haulers will not increase under the Ordinance. White Aff. (ECF Doc. 21) 8-9; Nix Depo. 90:4-91:1; 96:23-97:18. In sum, in order for the City to achieve its waste program goals, the City must be able to establish a reliable and steady stream of waste flow. See, e.g., Nix Aff., Ex. D; Tex. Health & Safety Code 363.003 (containing a legislative finding that the opportunity for resource recovery is diminished unless local governments can exercise control over solid waste . . . to supply solid waste to resource recovery systems or to operate those systems). Waste
management experts have similarly recognized that [w]ithout flow control of some form, governments ability to plan and provide for the most environmentally sound and economically acceptable solutions will wane, leaving the public vulnerable to the vagaries of a private market that does not have a duty to protect the public health and safety. Eric Peterson & David Abramowitz, Municipal Solid Waste Flow Control in the Post-Carbone World, 22 Fordham Urb. L.J. 361 (1995) (abstract). As described below, in order to secure this waste stream and its longterm waste management goals, the City enacted flow control through its democratic processes and consideration of various alternatives. See Nix Depo. 221:15-222:12. 1. The Franchise Ordinances Granted by the City in 2007.
Starting in 2007, some of the Plaintiffs entered into franchise agreements to haul commercial waste on City streets. Pls. Brief at 1 (failing to identify which, if any, Plaintiffs are Franchisee Plaintiffs). The franchise agreements grant waste hauling companies the nonexclusive permission and privilege to use Public Ways in order to collect and deliver for disposal. See Pls. Ex. 10 at 3, 6; see also City of Dallas v. FCC, 118 F.3d 393, 397 (5th Cir. 1997) (Franchise fees are . . . the price paid to rent use of public right-of-ways.), but do not
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grant any right to disposal as to volume of waste or disposal location. At the time these franchise agreements were executed, franchisees knew that the franchises were subject to further regulation by the City. Moore Aff. (ECF Do. 20) 5-6. Citing provisions of the franchise agreement regarding the definition of solid waste collection services (see, e.g., ECF Doc. 6 at 2-3), Plaintiffs have nevertheless maintained that the franchise agreement includes an absolute right, a vital contractual right, a vested right, and an essential franchise right[] to choose the location for disposing the Citys solid waste. Plaintiffs are wrong. The franchise agreement does not grant any such right to disposal. To the contrary, it explicitly reserves the Citys right, in three separate places, to regulate in areas touching the franchise, and thus Plaintiffs expressly assumed the risk that the City would amend its regulation of waste management, including where waste haulers must deposit their loads: (1) in a section titled Compliance with Law and Standards of Operation: franchisees shall be subject to and comply with all applicable local, state, and federal laws, including the rules and regulations of any and all agencies thereof, whether presently in force or whether enacted or adopted at any time in the future, (see Pls. Ex. 10 at 5) (emphasis added); (2) in a section titled City Retained Powers: the City reserves all rights and powers conferred by federal law, the Texas Constitution, Texas statutes and decisions, the City Charter, City Code, and City ordinances which City is allowed to exercise, (see Pls. Ex. 10 at 34); and (3) in a section titled Police Powers: [i]n accepting [the franchises], the Franchisee[s] acknowledge[] that [their] rights under [the franchises] are subject to the police power of the City to adopt and enforce general ordinances necessary to the health, safety, and welfare of the public. . . . Any conflict between the provisions of [these franchises] and any other present or future lawful exercise of the Citys police powers shall be resolved in favor of the latter, (see Pls. Ex. 10 at 36) (emphasis added). The police power is the customary and historic source of the Citys authority to regulate in the area of waste disposal, a typical and traditional concern of local government. United Haulers, 550 U.S. at 347. Moreover, Texas law expressly endows municipalities such as the City with authority to adopt rules for regulating solid waste collection, handling,
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transportation, storage, processing, and disposal, Tex. Health & Safety Code 363.111(a), and rejects the notion that any landowner has a vested right to use any piece of land for any specific purpose. Benners, 485 S.W.2d at 778. There can be no doubt that the City and franchisees recognized: (1) the Citys police power was wholly preserved under the franchise agreements; and (2) additional local, state, or federal regulations regarding solid waste would not be hindered by the existence of the franchise agreements. Plaintiffs exhibits include franchise agreements between the City of Dallas and: (1) Blue Bonnet Waste, Inc.; (2) IESI Texas Corporation (IESI); (3) Republic Waste Services of Texas, Ltd. d/b/a Duncan Disposal (RWST); (4) Allied Waste Services, Inc.; and (5) Waste Management, Inc.. See Pls. Exs. 10-14. Plaintiffs do not state or allege that any of the franchise agreements listed above have been assigned or transferred. See Pls. Ex. 10 at 17-8 (requiring prior written City Council consent for any transfer, assignment, or transfer of control). Accordingly, the only Plaintiffs with franchise agreements are: (i) IESI; and (ii) RWST. Other Plaintiffs operating disposal and recycling facilities do not have franchise agreements with the City. See Am. Compl. 7-11; Pls. Exs. 10-14. 2. The Flow Control Ordinance.
The City Council passed Ordinance No. 28427 on September 28, 2011, amending Chapters 2 and 18 of the City Code. Nix Aff. 5-7 & Ex. A (the Ordinance). The Ordinance is a flow control ordinance, meaning that it regulates the flow of solid waste by directing waste generated, found, or collected inside the City to City-operated and City-supervised waste facilities. To accomplish this, the Ordinance forbids any person from disposing of solid waste that has been generated, found, or collected inside the city at any location other than McCommas Bluff or another transfer station or landfill site owned or operated by the City. Ordinance 180-10(a)(1)(B). The Ordinance specifically exempts recyclable material by means
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of an explicit defense to enforcement: persons are categorically protected from prosecution if the particular waste was . . . composed solely of recyclable material. 10(a)(1)(B)(ii). [F]low control ordinances enable Counties to pursue particular policies with respect to the handling and treatment of waste generated in the Counties, while allocating the costs of those policies on citizens and businesses according to the volume of waste they generate. United Haulers, 550 U.S. at 343. Flow control, however, is not simply a financing tool[]. Id. at 346. On the contrary, it directly advances the Citys fundamental aim to operate in an environmentally sustainable manner as a leader and innovator in green management. In briefing presented to City Council on June 15, 2011, the City outlined the goals of the proposed Ordinance, which emulates similar regulations in other major cities and counties.3 In the short term, the City determined that it could create new jobs, secure the control of the resource stream, generate additional green energy at McCommas Bluff, and undertake additional resource recovery. Over the next several years, the City saw the Ordinance aiding its goal of eliminating the need for landfills entirely by converting all waste into energy used by the City to fuel its waste services and fund its management of solid waste; these advancements would create up to 500 new jobs. See Nix. Aff. 12 & Ex. C; Nix Depo. 25:12-18. Flow control also would help cover the expense associated with the Citys solid-waste services, including the planned construction of state-of-the-art resource recovery facilities, a core component of the Citys green initiatives. Ordinance 18-
Other local governments with flow control include: Jacksonville, FL; Seattle, WA; Palm Beach County, Fl; Snohomish County, WA (includes Seattle suburbs); San Jose, CA; Portland, OR; Lancaster County, PA; Franklin County, OH (includes Columbus, OH); Arlington, TX; Grand Prairie, TX; and College Station, TX. Nix Aff. 910.
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In addition to promoting green technologies and facilitating conservationtwo essential public intereststhe Ordinance also furthers other aspects of the public health and welfare in the following manners: it would (1) ensure the safe and proper handling of solid waste in the city; (2) provide for environmentally sound, cost efficient solid waste management; (3) provide a convenient and effective means of financing the citys solid waste programs and services and ensuring the viability of the citys solid waste collection and disposal utility; (4) facilitate the development of data to ensure sufficient capacity for disposal and recycling of solid waste; (5) increase recycling of solid waste; and (6) deter illegal dumping of solid waste. Nix. Aff. 5, 13 & Ex. A (the Ordinance). The Ordinance will permit the City to achieve these regulatory goals by centralizing all of the Citys waste at City-operated waste facilities.4 The Ordinance is thus aimed at reinventing the way solid waste is managed in the City by offering a critical step toward more convenient, efficient, secure, and environmentally friendly practices. The Citys choice was also market friendly. The City implemented an openmarket variety of flow control as opposed to alternatives applied in other cities, such as insourcing all waste collection or allowing just one or a select few waste haulers to operate in the City. Nix. Aff. 9 (noting less market friendly alternatives in place in other North Texas cities). Many of the benefits of flow control are associated with increased usage of capacity at McCommas Bluff. McCommas Bluff is an award-winning, professionally engineered, and
highly regulated landfill. It is owned and operated by the City, and the only landfill in the state to achieve ISO 14001 Certification for environmental management and ISO 9001 Certification for quality management. In 2010, the U.S. Conference of Mayors awarded the City its Green City Award for the landfill gas management project at McCommas Bluff. Nix. Aff. 14-7.
See, e.g., Nix Depo. 30:8-14 (explaining how Ordinance will give City level of control and security for the waste stream); 46:8-47:6 (explaining how Ordinance will facilitate development of data).
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Unlike for wastes that are currently being hauled outside City limits for disposal, the City is able to ensure that wastes brought to McCommas Bluff are disposed in an environmentally sound manner. Also, as briefly mentioned above, McCommas Bluff currently generates enough green energy from landfill gas to heat 25,000 homes. The City has obtained a special permit
modification from the Texas Commission on Environmental Quality to apply the biotechnological practice of Enhanced Leachate Recovery (ELR)5 which accelerates waste material degradation, creates additional waste space, and enhances the production of landfill gas which is, in turn, used to produce more green energy. Flow control will increase the waste mass contributing to this green energy source and improve North Texas air quality. Nix Depo. 25:1218; 26; Stefkovich Depo. 82:16-24, 84:4-13. In addition, reusable and recyclable materials are diverted for beneficial reuse at McCommas Bluff, meaning additional resource recovery will take place there. Nix. Aff. 14-7; Nix Depo. 10:18-14:21; 26:22-27:10. Finally, waste disposal at McCommas Bluff also represents one of the best values in the State of Texas. As part of the implementation of flow control, the cost to dispose waste at City facilities will be lowered or stay the same. For waste brought to the Citys Bachman Transfer Station, the tipping fee6 will be lowered from $47 to $36 per ton under the Ordinance. For disposal at McCommas Bluff, the tipping fee will remain at its current rate of $21.50 per ton. Nix Aff. 27. The City surveyed 31 permitted landfills across the State of Texas, including the Dallas-Fort Worth region, prior to adoption of the Ordinance. The tipping fee at McCommas Bluff is the lowest posted tipping fee. Nix Aff. 28, Ex. E; Nix Depo. 105:7-15.
5
McCommas Bluff was the first landfill in Texas to be permitted to use ELR, and is one of very few landfills in Texas applying the technology. Moreover, application of biotechnology and new permitted landfill space could extend the life of McCommas Bluff from 47 years to 92 years. However, expansion of McCommas Bluff would be an additional, significant expenditure for the City that is expected to be funded, at least in part, through revenue generated by flow control. Nix. Aff. 16, 22. 6 This refers to the amount charged to dispose of a quantity of waste at a landfill.
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B.
Citys Meeting with Stakeholders on Ordinance and Plaintiffs Interference of Same. On November 14, 2011, the Citys Director of Sanitation Services, Mary Nix, P.E., held a
meeting with franchised waste haulers in the City regarding flow control (hereinafter the Haulers Meeting). At the Haulers Meeting, the Director explained that the precise definition of what waste was composed solely of recyclable material was still an unequivocal bona fide issue. The Director explicitly indicated that guidance from the City on the issue of what was composed solely of recyclable material was forthcoming. See Supp. Nix Aff. (ECF No. 25) 6. Nevertheless, Plaintiffs have consistently misrepresented the Directors words at the Haulers Meeting. Id. 5-8. Indeed, Plaintiffs identify and quote extensively from an unknown speaker at the Haulers Meeting who queried the Director rigorously for legal conclusions and interpretations on the eve of Plaintiffs lawsuit. See Pls. Brief at 18. On information and belief of the City, the unknown speaker is an attorney associated one or more of Plaintiffs. This attorney questioned the Director regarding legal interpretations of the Ordinance, including the amount of nonrecyclables that would require a load to be disposed of at a City facility. The Director, in turn, promised that guidance was forthcoming. Supp. Nix Aff. (ECF Doc. 25) 6. Just four days after the Haulers Meeting and before the Director issued the guidance she promised, Plaintiffs filed this lawsuit. See id. 6; Nix Depo. 167:3-11 (noting that guidance was consistent with statements at the Haulers Meeting). C. Administrative Directive Regarding the Ordinance. On December 15, 2011, Director promulgated an administrative directive pursuant to her authority under Chapter 18 of the Code, to provide additional guidance regarding the Ordinances operation as she had promised to do at the Haulers Meeting. Nix. Aff. 30-2 & Ex. G (the Directive or Administrative Directive); Nix Depo. 155:2-156:13, 167:3-11. In the Directive, the Director issued the regulatory interpretation for the defense of disposing of
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solely recyclable material: For the purposes of compliance with the Citys flow control ordinance, solely recyclable refers to loads containing no more than incidental amounts of nonrecyclable material. The Director, in turn, considered industry input and adopted the States definition of qualifying loads with incidental solid waste: Non-recyclable waste that
accompanies recyclable material despite reasonable efforts to maintain source-separation and that is no more than 10% by volume or scale weight. Directive (quoting 30 Tex. Admin. Code 328.2(3)); Nix Depo. 159:16-24. The Directive similarly adopted the state-law definition of recyclable material found in 30 Tex. Admin. Code 328.8(e): glass, leather, metal (ferrous/nonferrous metal) and metal appliances, paper/paperboard, plastic, rubber, textile, wood, yard trimmings, concrete and asphalt pavement (rubble), brick, asphalt shingles, batteries, tires, and used oil. By doing so, the Director (1) interpreted the terms solely recyclable and recyclable material in a manner that is consistent with Texas law; and (2) reaffirmed that recycling will continue once the Ordinance goes into effect. Nix Aff. 33. III. PROCEDURAL HISTORY
Plaintiffs filed this lawsuit on November 18, 2012, four days after the Haulers Meeting and prior to issuance of the Directive. Plaintiffs subsequently amended their complaint on January 10, 2012. See ECF Doc. 36. The parties briefed the issues before the hearing, but those initial briefs were written largely without the benefit of affidavits, depositions, and other factual developments in the case. A hearing on the application for preliminary injunction was held on January 12, 2012. The Court granted Plaintiffs application for preliminary injunction based
only on Plaintiffs federal Contracts Clause claim. See Order (ECF Doc. 53) at fn.1. The parties subsequently agreed that they would fully resolve the case through briefing on a motion for permanent injunction without the need for a traditional trial. See ECF Doc. 55 at 4. Plaintiffs Brief in Support of Permanent Injunction was field on April 23, 2012. ECF Doc.
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68. In their brief, Plaintiffs have abandoned some of the claims asserted in the Complaint, including (1) violation of the Contracts Clause of the Texas Constitution (Compl. 44-47 Count 2); (2) improper tax (Compl. 52-56 Count 4); and (3) federal Sherman Act antitrust violation (Compl. 77-85 Count 10). As demonstrated above, of all the Plaintiffs, only IESI and RWST are City franchisees with rights under franchise agreements. The other haulers who claim to be hauling commercial waste within the City appear to be operating without valid franchises. Two of the Plaintiffs, National Solid Wastes Management Association (Association) and Businesses Against Flow Control (Businesses) (together the Association Plaintiffs), are organizations. They do not allege their specific organizational purpose or identify their member lists. Association alleges as its theory of damages only that its Dallas members rely heavily on the free flow of solid waste and recyclables and . . . will be harmed by the Ordinance. Am. Compl. 7. There is no
allegation regarding why any members who are not franchisees might have standing to complain about the Citys flow control policies. Businesses alleges only that its members include
unspecified organizations in Texas including Generators, Franchisees, and Owners/Operators doing business in the City who will be harmed by the ordinance. Id. 16. Neither of the Association Plaintiffs allege any specifics about how any of their members will be injured, whether their members injuries would be similar to those of other Plaintiffs, or which of their members may have standing to complain about any specific Ordinance provision. In addition to suing the City, Plaintiffs have sued Mayor Mike Rawlings and City Councilmembers Pauline Medrano, Tennell Atkins, Dwaine Caraway, Monica Alonzo, Carolyn Davis, Jerry Allen, Linda Koop, and Angela Hunt, each only in their respective official capacities, Am. Compl. 19, 20, and for Count 6. Count 6 alleges that franchisees were denied
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notice and hearing under the City Charter and the franchise agreements, and that the Individual Defendants violated the Charter and the franchise ordinances with the Ordinance. Id. 59-62. IV. A. APPLICABLE LEGAL AND EQUITY STANDARDS
Pleading and Proof Elements for Claims. 1. Business Entity Plaintiffs Must Plead and Prove Standing for Each Claim.
Plaintiffs other than Association Plaintiffs (hereinafter the Business Entity Plaintiffs) must each plead and prove that they each have standing for each claim, and standing to obtain the extraordinarily broad relief sought by the Complaint: The irreducible constitutional minimum of standing contains three elements. First, . . . an injury in fact -- an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of - the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-1 (1992) (internal quotation marks, brackets, ellipses, and citations omitted). Each plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. Warth v. Seldin, 422 U.S. 490, 499 (1975); see also Allen v. Wright, 468 U.S. 737, 752 (1984) (each plaintiff carries the burden of pleading (and later proving) standing as to each claim asserted). When a plaintiff seeks to enjoin the activity of a government agency, even within a unitary court system, his case must contend with the well-established rule that the Government has traditionally been granted the widest latitude in the dispatch of its own internal affairs. Rizzo v. Goode, 423 U.S. 362, 378-79 (1976) (citations and internal quotation marks omitted). 2. The Association Plaintiffs Must Plead and Prove That They Have Standing.
Representative organizations that do not claim injury to the association can sometimes obtain standing to assert their members claims, but to do so the organization must both plead
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and prove that (1) the interests it seeks to protect are germane to the organizations purpose, Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977); (2) at least one of their members is suffering immediate and or threatened injury as a result of the defendants actions, Warth, 422 U.S. at 511 , and (3) so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction. Id. (emphasis added). Where specific facts would be necessary to prove the claims of specific members, associational standing should be rejected. See Ass'n of Am. Physicians & Surgeons, Inc. v. Texas Med. Bd., 627 F.3d 547, 552 (5th Cir. 2010). Here, for example, an Association Defendant whose organizational purpose was to enhance service to customers or to serve the public interest could not have standing. For Plaintiffs claim under the Contract Clause, individual franchisee members participation would be necessary to prove that such member subjectively relied on a supposed right to dispose of solid waste. B. Jurisdictional and Equity Principles Elements for Enjoining Enforcement of the Entire Severable Ordinance.7 Intertwined considerations of standing, ripeness, and the case or controversy mandate for subject-matter jurisdiction are all closely related to the customary equity doctrine that injunctions must be neither broader nor narrower than necessary to prevent actionable wrongs. See Hamilton v. Bank of Blue Valley, 746 F. Supp. 2d 1160, 1182 (E.D. Cal. 2010) (Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted) (citation omitted); United States v. State of Tex., 523 F. Supp.
The Courts preliminary injunction (ECF No. 53) at 33, actually enjoins enacting the Ordinance, not enforcement. Because the Ordinance was already enacted prior to Plaintiffs lawsuit, this error rendered the entire injunction technically moot and unenforceable. However, out of respect for the Court, the City has not attempted to enforce any provisions of the Ordinance.
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703, 735 (E.D. Tex. 1981) (primary requirement for equitable relief is that it will be effective in accomplishing its remedial purpose) (citation omitted). Plaintiffs Amended Complaint and Brief ignore these principles. None of Plaintiffs filings justify such a broad injunction. C. Traditional Equity Standards for Issuance of Permanent Injunction. A party seeking a permanent injunction must demonstrate: (1) success on the merits; (2) that a failure to grant the injunction will result in irreparable injury; (3) that said injury outweighs any damage that the injunction will cause the opposing party; and (4) that the injunction will not disserve the public interest. VRC LLC v. City of Dallas, 460 F.3d 607, 611 (5th Cir. 2006) (upholding district courts refusal to issue permanent injunction against City of Dallas) (citations omitted). The success on the merits requirement includes the need for Plaintiffs to
demonstrate irreparable injury. See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (patent case discussing four equity requirements for permanent injunction). In considering injunctive and other equitable relief, federal courts must be governed by traditional equity principles. Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318-9 (1999). The substantive prerequisites for obtaining an equitable remedy as well as the general availability of injunctive relief are not altered by [Federal Civil Procedure] Rule 65 and depend on traditional principles of equity jurisdiction. Id. (quotation omitted). Congress has sometimes altered the standards for enjoining specific statutes (see, e.g., Tenn. Valley Auth. v. Hill, 437 U.S. 153, 172 (1978)), but no such congressional intrusion on traditional equity standards applies to the claims addressed in Plaintiffs Brief. D. Official Immunity Elements. Official-capacity suits . . . generally represent only another way of pleading an action against an entity of which an officer is an agent. As long as the government entity receives notice and an opportunity to respond, an officialcapacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity. Thus, while an award of damages against an official in his personal
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capacity can be executed only against the official's personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself. Kentucky v. Graham, 473 U.S. 159, 165-6 (1985) (citations omitted). Suits against city officials for injunctive relief are redundant when the city is also a party, and of no . . . legal significance. Holland v. City of Houston, 41 F. Supp. 2d 678, 689 (S.D. Tex. 1999) (civil rights case). No relief sought by the Amended Complaint requires the
participation of any Individual Defendant in the litigation as a party. Any declaration against the City would bind City officials including the Individual Defendants even if they were not parties, under privity principles, see Sw. Airlines Co. v. Tex. Int'l Airlines, Inc., 546 F.2d 84, 94-5 (5th Cir. 1977), and any injunction would bind them once they received notice of the injunction even if they were not parties. Fed. R. Civ. P. 65(d)(2)(B) and (C); see Harrington v. Colquitt Cnty. Bd. of Educ., 449 F.2d 161 (5th Cir. 1971) (injunction). V. A. ARGUMENT
The Associational Plaintiffs Neither Plead nor Prove the Elements for Associational Standing And They Had to Do Both. The Amended Complaint fails to allege specific injuries to specific Plaintiffs, and the
elements of the claims require specific pleading and proof: What franchisees supposedly relied on guaranteed flow volumes or on license to dump solid waste from the City anywhere they chose? What franchisees did or did not have notice and an opportunity to be heard respecting the Ordinance? The Amended Complaint provides no indication whether participation of individual Association Plaintiffs members is necessary, and therefore is fatally defective. It is unclear which, if any, of those Business Entity Plaintiffs were members of either Associational Plaintiff. Clearly the Association Plaintiffs have failed to plead or to prove that the participation of their members is unnecessary.
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B.
Lack of Standing Recurs Throughout the Claims as to the Business Entity Plaintiffs. Plaintiffs failure to allege or to prove imminence of specific injury to specific plantiffs is
fatal to all claims of all Plaintiffs except for the sole claim against the Individual Defendants, who are immune. The Amended Complaint blithely ignores Plaintiffs pervasive and fatal lack of standing to obtain the relief requested. Plaintiffs fail to plead or to prove which, if any, of them may be entitled to raise any specific claim. Plaintiffs fail to specify which, if any, of the Ordinance provisions could be subject to invalidation if any specific claim in the Complaint were valid. Without differentiation as to which Plaintiffs have standing or as to which specific provisions of the Ordinance could be unenforceable, they repeatedly couch their claims for injunctive relief in terms of the ordinance violates [or is inconsistent with] [selected constitutional, statutory, regulatory, charter, or ordinance provisions] . . . and is void and unenforceable.8 Elsewhere, again without even attempting to limit injunctive relief to those entitled to Plaintiffs with standing to complain of the alleged error, the Amended Complaint alleges that because Individual Defendants violated procedural requirement assertedly applicable to franchisees the ordinance should be declared void and unenforceable Am. Compl. 62. Neither the Court nor Defendants have any burden of demonstrating the basis for Plaintiff standing. Neither the Court nor Defendants have any burden to match Ordinance provisions to Plaintiffs allegations. See Allen, 468 U.S. at 752. The Court can only grant injunctive relief, if at all, in favor of specific Plaintiffs who allege and prove irreparable injury to themselves, and
See Am. Compl. at 43 (Count 1, U.S. Const. Contracts Clause), 47 (Count 2, Tex. Const. Contracts Clause (waived by Brief)); 51 (Count 3, Tex. Const. Due Course of Law), 56 (Count 4, improper tax (waived by Brief)), 58 (Count 5 U.S. & Tex. Consts. ambiguous Ordinance), 68 (Count 7 (state occupy the field preemption)), 72 (Count 8, inconsistent with state law preemption), 76 (Count 9, improper delegation to Sanitation Director), and 85 (Count 10, Sherman Act, waived by Brief).
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then only as to the specific provisions of the severable Ordinance that those Plaintiffs plead and prove caused such injury. John Doe #1 v. Veneman, 380 F.3d 807, 818 (5th Cir. 2004). 1. Non-Franchisee Plaintiffs Lack Standing Under The Contracts Clause, the Due Course of Law Clause, and the Procedural Provisions of the City Charter and Code and the Franchisee Plaintiffs have Failed to Prove any Injury that Would Give Them Standing.
Solid waste hauling franchisees are the only Plaintiffs who could even allege concrete injury caused by the Amended Complaints allegations associated with purported rights under franchise agreements, but the Amended Complaint fails to identify them and evidence affirmatively establishes that all but two Business Plaintiffs lack franchises. Landfill operators have no such rights. The Association Plaintiffs have no such rights. At most, any injunction could only enjoin enforcement of the Ordinance against any current franchisees who have alleged and proved both standing and imminent injury. Neither of the two franchisee Plaintiffs have alleged or proved specific belief that their franchises guaranteed them solid waste volume or the right to dispose of waste anywhere outside the City. To the contrary, Franchisee Plaintiff RWNT had knowledge that flow control could impact waste volumes as early as the mid-1990s through the time it executed its franchise agreement, and further that the City could itself pick up those wastes from commercial customers instead of franchisees. Stefkovich Depo. 11:11-4; 15:8-15; 43:12-22. Thus, there is no expectation of solid waste volumes or a right to dispose, and, furthermore, no Plaintiffs have standing under any Count addressed by the Brief. 2. The Requested Injunction Improperly Ignores Severability of Ordinance.
The Court can only enjoin enforcement of specific terms of the severable ordinance, and then only to the extent justified by pleading and proof. Plaintiffs pleading and evidence is too overbroad and ambiguous to allow the Court to exercise equity powers to enjoin enforcement of any provisions of the Ordinance.
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C.
Plaintiffs Request For a Permanent Injunction Should Be Denied Because Plaintiffs Cannot Prevail on the Merits of their Remaining Claims. Because these Plaintiffs cannot satisfy any legal element required for issuance of a
permanent injunction, much less all of them, their request for permanent injunctive relief must be denied. See VRC LLC, 460 F.3d at 611. 1. Plaintiffs Claim Under the Contract Clause of the U.S. Constitution Fails Because Plaintiffs Have No Right of Disposal, And Even if Such a Right Did Exist, the Ordinance Does Not Violate the Contracts Clause.
The Contract Clause restricts a States ability to impair[] the Obligation of Contracts, U.S. Const. art. I, 10, cl. 1, but case law limits the absolutist language of the clause, so as not to depriv[e] the State of its prerogative of self-protection. Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 240 (1978). Therefore, the Clause does not trump the police power of a state to protect the general welfare of its citizens, a power which is paramount to any rights under contracts between individuals. Id. at 241. Accordingly, courts must accommodate the Contract Clause with the inherent regulatory authority of the state to safeguard the vital interests of its people. Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 434 (1934) In short, except under very limited circumstances, the Contracts Clause is not a basis for a determination that a state or local government has contracted away its police powers.9 Plaintiffs lead claim easily fails for four separate reasons: (a) Plaintiffs assert a claim under the Contract Clause based on a right that does not exist in a contractand without a right there can be no impairment; (b) Plaintiffs cannot raise a Contract Clause claim even with an impairment, because the City here is exercising its core regulatory authority to advance public health, safety, and welfare; (c) even if heightened scrutiny applies (which it plainly does not), the
The Brief asserts only the Contracts Clause claim under the U.S. Constitution and waives the state constitutional claim. Accordingly, Defendants brief only the federal issue.
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City can satisfy itthe legislative record reflects any number of legitimate public interests directly advanced by the Ordinance, as the Supreme Court itself has recognized in a related context, see United Haulers, 550 U.S. at 344; and (d) Plaintiffs Contracts Clause claim is improper because the Ordinance does not set up a defense that prevents any Plaintiff from obtaining damages, or some equivalent remedy, for the breach alleged by Plaintiffs. This claim represents nothing more than Plaintiffs improper attempt to inject the judiciary in the middle of a policy debate over economic and social legislation, and their efforts accordingly should be denied. a. There is no such thing as a Contract Clause claim supporting a right found nowhere in the contract.
There can be no Contract Clause impairment of a right not found in the contract. Gen. Motors Corp. v. Romein, 503 U.S. 181, 186 (1992); U.S. Trust Co. of N.Y. v. New Jersey, 431 U.S. 1, 17 (1977) (asking whether the challenged law even impair[s] a contractual obligation in the first place). The parties agree that the franchise agreement is silent on the so-called right to disposal that Plaintiffs say was central to the agreement.10 There can be no doubt that flow control was a consideration for Plaintiffs dating back many years. See Lattimore Decl. (ECF Doc. 23) 5-6, 41-2 (considered and evaluated flow control as far back as early 1990s as part of negotiation and execution of numerous franchise agreements with municipalities for Waste Management and Republic Waste). Indeed, Mr. Nicholas Stefkovich of RWNT stated that local flow control ordinances have been a topic in the industry for some time, dating back approximately 18 years to a highly-publicized U.S. Supreme Court flow control case (C&A
10
Lantrip Depo. 10:5-18; 31:6-22 (the franchise agreement is silent on the issue and the City did not orally grant any right to dispose); Stefkovich Depo. 15:8-24 (stating that at least two Plaintiffs knew flow control was an issue when executing their franchise agreements with the City); see also Lattimore Aff. 41-3.
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Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994)). See Stefkovich Depo. 6:2-10; 10:19-11:14. If this entitlement were truly so fundamental to Plaintiffs business operations, one would expect sophisticated actors, such as Plaintiffs, to insert the clause, explicitly, in the actual text of a 42-page agreement. To the contrary, no right to disposal can be found anywhere in the agreementnot in a single section, paragraph, provision, or clause. Plaintiffs admit that there is nothing stopping the City from stepping into the shoes of a hauler of commercial waste and undercutting all of the franchised waste haulers, taking away their customers by underpricing them. Stefkovich Depo. 43:7-45:1. This underscores the obvious: the City did not delegate its fundamental sovereign power to decide, for a period of two decades (i.e., the duration of the agreement), all matters pertaining to waste management, including where self-interested economic actors locate and deposit waste. See Nix Depo. 213:19-22 (Ordinance changes no rule or regulation of the franchises). Nor, for that matter, can Plaintiffs account for the explicit text, in three separate places, emphasizing the contingent nature of the franchise rights, and reiterating the Citys ability to pass new laws in the future that might materially alter the regulatory scheme when the franchise was granted. In fact, representatives of Plaintiffs testified that the City had a right to make regulatory changes impacting the hauling of waste under the franchise agreement. Stefkovich Depo. at 89:2-7; Lantrip Depo. 98:8-22; see also Am. Compl. 45 (franchise agreement states that the franchisee may only use an authorized landfill). Plaintiffs may now prefer not to read the contract to mean what it says, but its actual (not hidden) language stands for the unsurprising proposition that the City retained the customary and traditional governmental function (United Haulers, 550 U.S. at 345 n.7) of electing the location where trash from the municipality would be deposited and processed, and that Plaintiffs and other haulers knowingly assumed the risk that
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the location might change. See Moore Aff. 6 (franchised waste hauler testifying that he knew in 2007 that franchise agreement was subject to change in City regulation such as flow control). Moreover, Plaintiffs are keenly aware that the franchise agreements simply do not grant any rights to franchisees outside of City limits. McCord Depo. 15:21-24 (testifying that purpose of franchise agreements was [t]o allow haulers to operate their business in the City of Dallas, as opposed to choosing disposal sites outside City limits) (emphasis added). The franchise agreements by definition did not grant any right outside the City limitsthe franchise agreements are simply irrelevant to any activities outside the City.11 Therefore, any expectations or beliefs by any hauler or landfill owner or operator about where solid waste from the City could be dumped had no foundation in the franchise. Moreover, those franchises could not conceivably have granted any rights to non-parties to the agreement without further approval from City Council.12 In sum, Plaintiffs base their Contract Clause claim on the assertion that they justifiably relied on a crucial term of the franchise, Pls. Br. 15, which (1) appears nowhere in the text of the agreements, (2) contravenes the City Code as it existed at the time the City granted the franchises, and (3) is undermined by the franchises express reservation to the City of the right to alter solid-waste-management regulations. The Ordinance did not impair any contractual
obligation because the City did not have an obligation to defer to the franchisees choice of disposal location. In truth, the City had the right to determine the disposal location at all times before and after the franchises were granted.
11
See Pls. Ex. 10 at 2 (defining Authorized Area as the entire area from time to time within the corporate limits of the City of Dallas) and 3 (franchise granted solely for the purpose of operating and maintaining a Solid Waste Collection service in, over, along and across the Public Ways in the Authorized Area). 12 See Pls. Ex. 10 at 3 (City hereby grants Franchisee non-exclusive permission and privilege) and 30 (franchise agreement embodies the entire agreement and can only be modified by an ordinance amendment approved by Council.).
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b.
Even if they could identify a right between the lines of a contract, Plaintiffs still fail to account for the limited nature of the Contract Clauses sweep.
The Contract Clause does not preclude the exercise of police power. Allied Structural Steel, 438 U.S. at 241. The guiding principle is that one legislature cannot assign away the powers of a future legislature by settling a matter in a contract. United Healthcare Ins. Co. v. Davis, 602 F.3d 618, 628 n.7 (5th Cir. 2010). On the contrary, where the subject-matter involves the exercise of sovereign authorityas it plainly does here, in this area of typical and traditional [government] concern (United Haulers, 550 U.S. at 347)one legislative session cannot forfeit the governments future ability to legislate on matters affecting the public interest. See U.S. Trust Co., 431 U.S. at 23. In fact, the waste management industry acknowledges that the risk of change in regulation is is an assumed risk. See Stefkovich Depo. 52:13-19; see also id. 79:316 (risk of regulatory change for landfilling also borne by industry); Lattimore Decl. 41-2. Even if Plaintiffs could somehow divine an impaired right in the contract, the right to regulate solid waste is squarely in the Citys purview and the risk of additional regulation is regularly borne by waste haulers. c. The Contract Clause does permit judicial oversight where the government is acting solely in a proprietary capacity and seeking to excuse itself from financial obligations through the backdoor of legislation.
Enhanced judicial scrutiny under the Contracts Clause is limited to certain agreements about a governments financial obligations in its proprietary capacity. See Energy Reserves Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400, 412 n.14 (1983). But that is plainly not this case.13 In fact, the Supreme Court recently addressed similar flow control ordinances,
In the Order (ECF Doc. 53), the Court incorrectly suggests that a higher level of scrutiny applies to the Ordinance because a state has impaired its own contractual obligations. Id. at 7-8; see also id. at 28. The Court further relies
13
[Footnote continued on next page]
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explaining that [d]isposing of trash has been a traditional government activity for years, United Haulers, 550 U.S. at 334, 344, and noting that Congress itself has recognized local governments vital role in waste management, making clear that collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies, id. at 344 (quoting Resource Conservation and Recovery Act of 1976, 90 Stat. 2797, 42 U.S.C. 6901(a)(4)) (emphasis added). The Court ultimately concluded that flow control ordinances directing haulers to publicly owned landfills are legitimate exercises of police power addressing a traditional concern of local government. Id. at 347. As described above, the Citys implementation of flow control can achieve many worthy and environmentally friendly goals. Despite this, Plaintiffs incorrectly assert that [t]he ordinance does not advance any goals that are important and of legitimate public concern under the police power, Am. Compl. 41 (emphasis added), and further that the only purpose of the Ordinance was to shift . . . revenue into the Citys coffers. Pls. Brief 2. No evidence or logic supports this assertion. Plaintiffs may believe that they alone are aware of the Citys true motivations. But this fails for any number of reasons. The operative question is whether the government had the power to do what
[Footnote continued from previous page] on its application of a higher level of scrutiny as its basis for overruling Defendants evidentiary objections and considering extrinsic evidence apparently to the exclusion of the wording of the Ordinance itself and other supporting documentation. Id. fn. 2. However, the cases relied upon by the Court applied this higher level of scrutiny only when a States legislative action altered the States financial obligations under an existing contract. See Energy Reserves Grp., Inc., 459 U.S. at n.14 (refusing to apply stricter U.S. Trust Co. standard to State of Kansas, and indicating it applies when State enters financial or other markets); U.S. Trust Co., 431 U.S. 1 (regarding a States repeal of a covenant to repay certain bonds). See also W.B. Worthen Co. v. Kavanaugh, 295 U.S. 56 (1935) (holding that a law authorizing the impairment of municipal bond contracts was unconstitutional); Murray v. Charleston, 96 U.S. 432 (1877) (holding that a tax on municipal bonds was unconstitutional because its effect was to reduce the contractual rate of interest). The present case is a distinctly different scenario. Here, the franchise agreements do not obligate the City to make payments or do anything else. Indeed, no party has even alleged that the City is attempting to evade any financial obligation under a contract. To the contrary, by enacting the Ordinance the City is attempting to meet its future financial obligations to modernize the Citys waste disposal process. Accordingly, the application of a higher level of scrutiny is improper and without support in the cited cases.
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it did, not whether it recited the correct rationale in the legislative record. See Energy Reserves Grp., Inc., 459 U.S. at 412 ([t]he requirement of a legitimate public purpose guarantees that the State is exercising its police power). And the Supreme Court has already determined that the police power supports flow control as a legitimate and traditional government function.14 Nevertheless, even a hard look at the many briefings to City Council and considerations by City staff, as outlined above, must result in the conclusion that the actual motivations behind the Ordinance included legitimate public purposes, and comprised much more than revenue. It is hardly irrational, for example, for the City to aim to reduce administrative burdens and monitoring expense by requiring all waste to be deposited in locations under City control, rather than across multiple private landfills throughout the North Texas Metroplex. If the haulers could take waste to any disposal site, achieving an equal level of enforcement would be much more costly, if not impossible. United Haulers, 550 U.S. at 346-7. The experience of local governments in United Haulers also teaches the potential for a solid waste crisis should private landfills violate[] state regulations or fail to operate in an environmentally responsible fashion. Id. at 334-5. Moreover, even in the absence of these problems, the Fifth Circuit held that even seeking revenue via a flow control ordinance is a legitimate public purpose, because it will ensure the economic viability of the local governments waste management system and landfill. Natl Solid Waste Mgmt. Assn., et al. v. Pine Belt Reg'l Solid Waste Mgmt. Auth., 389 F.3d 491, 502 (5th Cir. 2004) (appeal of a flow control case brought in Mississippi by waste management companies, including some of the Plaintiffs and their affiliates). In short, as
14
United Haulers, 550 U.S. at 345 n.7, 346-7 (plurality opinion); see also Mid-Am. Waste Sys., 49 F.3d at 291 (7th Cir. 1995) (Depositing garbage in landfills is not exactly a fundamental right, either. Disposition of waste is a highly regulated industry. A claim that the Constitution protects this industry from public controleven when the landfill is public propertywould bring nothing but belly laughs.).
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Plaintiffs well know, the City is not required to wait for the proverbial levees to break before making its repairs through the regulatory process. See Energy Reserves Grp., Inc., 459 U.S. at 412 (public purpose need not be addressed to an emergency or temporary situation). At any point the City may act in the public interest and any of the following would sufficiently justify the Ordinance: (1) the risk of private malfeasance alone; (2) ensuring waste streams to allow for the full benefits of resource recovery to occur; or (3) ensuring the economic viability of the local governments waste management system and landfill. In any event, a host of legitimate and powerful public interests were clearly articulated, developed, and documented throughout the legislative process. In May 2011, a Memorandum to City Council explained that the Ordinance was only the first step toward fully utilizing the citys waste stream as an avenue for expanding [its] maturing green policies. Nix Aff., Ex. B at 1. This briefing emphasized that for the City to [b]roaden [its] green policies into waste, it must begin to (1) treat trash as a valued resource, (2) make beneficial use and reuse of [its] solid waste resources, and (3) prepare for new technology to replace landfilling. Id. at 4.15 The City affirmed that [w]aste service is a fundamental City function, and [p]rotection of public health and environment are paramount. Id. at 11; see also Lipscomb v. Columbus Mun. Separate Sch. Dist., 269 F.3d 494, 511 (5th Cir. 2001) ([f]unding schools and avoiding the dissipation of state assets are classic police functions).16 It is true, of course, that the City has not yet developed the entire infrastructure to support its initiatives. But advanced planning is a virtue, not a vice. Plaintiffs, understandably, would rather make more money in the interim
15 16
Plaintiffs agree that these are desirable public policy goals. See Lantrip Depo. 54:24-55:7; 68:13-5; 68:18-69:5. Statements by the Dallas Mayor and other Councilmembers also clearly show that the environmental goals and public benefit and not the proprietary interest of the City was the primary concern when the Ordinance was being considered. See Plaintiffs and Defendants Stipulation of Statements of City of Dallas Mayor and Other Councilmembers (ECF Doc. 43). Nevertheless, Defendants reiterate their objection that such statements are inadmissible and not relevant to legislative intent in this case.
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before the Citys new policies take effect. But nothing in the state or federal constitutions require the City to await disaster before legislating to avoid it. d. The Contracts Clause Claim is Improper When the Ordinance Does Not Set Up a Defense Preventing Plaintiffs From Obtaining Damages or Another Remedy.
The Contracts Clause claim would lie only if the Ordinance had been adopted as a ruse to deprive franchisees of breach of contract remedies that they would have had but for the Ordinance. See Council 31 of the Am. Fed'n of State, Cnty. & Mun. Employees v. Quinn, No. 113111, 2012 WL 1758807 (7th Cir. May 17, 2012). Council 31 provides the correct analysis, and as in Council 31, Plaintiffs argue a classic breach of contract (i.e., the so-called right to dispose under the franchise agreements has allegedly been breached). The breach itself gives rise to a cause of action and, consequently, Plaintiffs claim under the Contracts Clause is improper because the Ordinance does not set up a defense that prevented [any Plaintiff] from obtaining damages, or some equivalent remedy, for the breach. See id. at *8. 2. The Ordinance Does Not Violate the Texas Constitutions Due Course Of Law Provision Because the Ordinance is a Reasonable and Legitimate Exercise of the Citys Police Power.
Plaintiffs allege that the Ordinance violates the Texas Constitutions due course of law provision, Tex. Const. art. I, 19, because the Ordinance purportedly serves no valid police power purpose. Pls. Brief 8-14. Plaintiffs are mistaken. Their claim is nothing more than a substantive-due-process challenge to ordinary social and economic legislation. See Univ. of Texas Med. Sch. v. at Houston Than, 901 S.W.2d 926, 929 (Tex. 1995) (equating the federal and state constitutional standards). It accordingly stands as a forbidden invitation for the federal judiciary, under the guise of state law, to interfere with questions that the Constitution properly reserves for local governments. In its 2007 decision rejecting a challenge under the Dormant Commerce Clause to a virtually identical flow-control ordinance, the Supreme Court cautioned
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against this type of unprecedented and unbounded interference by the courts with state and local government. United Haulers, 550 U.S. at 343. Substantive due process, no more than the Dormant Commerce Clause, is not a roving license for federal courts to decide what activities are appropriate for state and local government to undertake, and what activities must be the province of private market competition. Id. Plaintiffs argument is predicated almost exclusively on a single caseTex. Power & Light Co. v. City of Garland, 431 S.W.2d 511 (Tex. 1968)a decision that has nothing to do with this case. In City of Garland, the city invoked its regulatory powers for the single and conceded purpose of advancing its own economic and proprietary interests, 431 S.W.2d at 518and to do so at the expense of a private partys protected property interest in a previously granted franchise. Garland, the Court confirmed, had no right to barter with the police power. Id. Here, however, Plaintiffs have no protected right under the contractPlaintiffs never had an absolute entitlement, proprietary or otherwise, to choose the disposal location. As clearly
demonstrated above, there is no right to dispose under the franchise agreements. This was a predicate to City of Garlands entire analysis, and it remains unsatisfied here. Moreover, the City is not simply acting in a proprietary capacity; this regulation addresses valid and legitimate government interests, as United Haulers effectively confirmed. Plaintiffs may disagree about the efficacy of the Citys exercise of its police powers, but a federal court is the wrong forum for that debate. Social and economic policy passes constitutional scrutiny so long as there is any reasonably conceivable state of facts that could provide a rational basis for the classification. FCC v. Beach Commcns, Inc., 508 U.S. 307, 313 (1993); see also id. at 315 (1993) (a legislative choice is not subject to courtroom fact finding and may be based on rational speculation unsupported by evidence or empirical data). Because the Citys approach to
municipal waste disposal was plainly rational, Plaintiffs err in inviting the Court to rigorously
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scrutinize economic legislation passed under the auspices of the police power. United Haulers, 550 U.S. at 347. 3. Plaintiffs Are Incorrect That There Is Any Conflict, Much Less A Direct Conflict, Between State Law And The Ordinance.
Even though (1) state and local law promote local regulation of solid waste; and (2) the Ordinance and Administrative Directive harmonize and are consistent with state law, Plaintiffs mistakenly contend that state law preempts the Citys regulation of solid waste because of irreconcilable differences in the definition of recyclable materials. See Pls. Brief 26-37.
However, Plaintiffs fail to identify the proper standard for preemption under Texas state law, and they fail to identify any applicable case law.17 The appropriate test for preemption states that the existence of a Texas state law does not prohibit a city from regulating in the same field unless (1) the intent to preempt appears in the state law with unmistakable clarity; and (2) an actual conflict exists between the ordinance and a preemptive state law. See In re Sanchez, 81 S.W.3d 794, 796 (Tex. 2002). Moreover, Plaintiffs misconstrue[d] the powers available to Dallas, a home-rule city. MJRs Fare of Dallas, Inc. v. City of Dallas, 792 S.W.2d 569, 573 (Tex. App.Dallas 1990, writ denied). A home rule city . . . has considerably more freedom to act, and is not required to look to the legislature for a grant of power to act, but only to ascertain if the legislature has placed limitations on the citys constitutional power. Cent. Ambulance Serv., Inc. v. City of
17
Plaintiffs reliance on two Texas state court cases interpreting the Texas Alcoholic Beverage Code (TABC) is likewise misplaced. In Dallas Merchs. & Concessionaires Assn. v. City of Dallas, the Texas Supreme Court invalidated an ordinance that sought to regulate sales of alcoholic beverages in contravention of the TABC, which expressly provided that this code shall exclusively govern the regulation of alcoholic beverages in this state. 852 S.W.2d 489, 491-92 (Tex. 1993) (emphasis added). Here, the relevant state law provisions do not restrict the regulation of solid waste regulation, and, indeed, specifically delegate the authority to adopt rules for regulating solid waste collection handling, transportation, storage, processing, and disposal to the City. Tex. Health & Safety Code 363.111(a). And the city ordinance in City of Wichita Falls v. Abell was incompatible with State law, 566 S.W.2d 336, 338 (Tex. 1978); there is no direct conflict here.
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Dallas, 631 F. Supp. 366, 369 (N.D. Tex. 1986) (quoting Burch v. City of San Antonio, 518 S.W.2d 540, 543 (Tex. 1975)). There is no such limitation on the Citys constitutional power to enact the Ordinance, and there is no conflict between state and local law in this instance. For each of the following reasons, the City has acted properly and Plaintiffs preemption claims must fail. a. There can be no intent to preempt with unmistakable clarity or otherwise because state and federal law anticipate robust local participation in the regulation of solid waste.
Texas law expressly endows municipalities such as the City with authority to adopt rules for regulating solid waste collection, handling, transportation, storage, processing, and disposal. Tex. Health & Safety Code 363.111(a). Solid waste includes garbage, rubbish, sludge and any other discarded material, id. 363.004(19), and does not have any exclusion for recyclable materials. The statute further expressly authorizes municipalities to operate all or any part of a solid waste management system. Id. 363.117. Similarly, the U.S. Supreme Court recognizes [w]aste disposal is both typically and traditionally a local government function. United Haulers, 550 U.S. at 344. In short, federal and state law anticipate robust local regulation of solid waste collection, handling, transportation, storage, processing and disposal, including the imposition of flow control.18 Even if federal and Texas law did not endow municipalities with these broad ranging powers, Plaintiffs argument must fail. Texas state law does not directly regulate the hauling of recyclable materials in such a manner to exclude the City from additional regulation. See In re
Plaintiffs preemption argument is also contrary to the federal governments findings that flow control is authorized by Texas state law. See U.S. EPAs Report to Congress: Flow Controls and Municipal Solid Waste, EPA Doc. No. 530-R-95-008, dated March 1995 (available at http://www.epa.gov/osw/nonhaz/municipal/landfill/flowctrl.htm) (In Texas, cities and counties may impose flow controls as part of local MSW [municipal solid waste] management planning.).
18
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Sanchez, 81 S.W.3d at 796 (requiring any such statement to be with unmistakable clarity). Moreover, there is no state law generally prescribing the ratio of recyclables to solid waste in a haulers load. Rather, state recycling laws and TCEQ rules cited by Plaintiffs exist to regulate recycling and solid waste facilities. See, e.g., Pls. Brief at 28 (citing 30 Tex. Admin. Code. 328.4(d)).19 The incidental amount of waste allowed in loads of otherwise recyclable
materials is regulation on a facility level, not for haulers. See id. 328.2(3). The City does not seek to impact TCEQs regulation on the facility level. Indeed, the exemption in the Ordinance and Administrative Directive does not regulate facilities, but rather exempts haulers with recyclable loads. As noted by the Director (see Nix Depo. 243:8-23), the Citys intent was to adopt and be consistent with 30 Tex. Admin. Code 328.2 to exempt haulers, but not to include every single aspect of state law meant to regulate on a facility level. It is crystal clear that pursuant to its home-rule powers and state law, the City may regulate collection, handling, transportation, storage, processing, and disposal of solid waste. In addition, Defendants have not (and cannot) identify any statement in a state statutemuch less a statement of unmistakable claritythat would prevent the City from adopting the Ordinance. Consequently, for this reason alone, Plaintiffs arguments regarding preemption must fail. In re Sanchez, 81 S.W.3d at 796. b. The Ordinance harmonizes with state law and cannot be preempted. See
As described above, there is no intent to preempt on behalf of the state. Even if there was a statement of intent with unmistakable clarity, Plaintiffs preemption claim must fall short
See also TCEQ electronic guidance Recycling: Am I Regulated? (available at http://www.tceq.texas.gov/permitting/waste_permits/msw_permits/MSW_amIregulatedrecycling.html) (broadly stating that (1) facilities that separate recyclables from solid waste must be permitted or registered by TCEQ as a municipal solid waste facility; and (2) facilities that receive, process and return to use source separated recyclable materials are exempt from TCEQ permit and registration requirements, provided they comply with storage, recordkeeping, and reporting requirements). No similar regulations or guidance are provided for haulers.
19
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because they have presented no evidence to show that they cannot comply with both the Ordinance and state law. See Leibowitz v. City of Mineola, Tex., 660 F. Supp. 2d 775, 788 (E.D. Tex. 2009) (quoting City of Beaumont v. Fall, 291 S.W. 202, 206 (Tex. 1927)). This is because it is entirely possible to comply with both simultaneously. Moreover, the Ordinance
unequivocally relieves haulers of materials composed solely of recyclable material of the obligation to haul such materials to McCommas Bluff or another City facility. Accordingly, the Citys action is narrowly targeted toward controlling the collection and disposal of dry or wet solid waste, not recycling, while remaining consistent with state law. Plaintiffs nonetheless twist the language of the Ordinance, suggesting that the word solely in the relevant provision will result in the regulation of recyclable material containing even trace amounts of solid waste. Pls. Brief at 30. This interpretation has no basis in fact or with those experienced in the waste management business. Lattimore Aff. 29-31; Nix Aff. 32-3. Plaintiffs suggested construction is especially unreasonable in light of the Administrative Directive interpreting the relevant provision, which confirms that solely recyclable refers to loads containing incidental amounts of non-recyclable materials, generally consistent with Texas state law. See Stefkovich Aff. 77:14-18 (Mr. Stefkovich of Republic Waste states that the Directive is consistent with the definition [of recyclable materials] in state law.). Indeed, in their brief Plaintiffs concede that the Ordinance and Administrative Directive define the operative term similarly to state law. Pls. Brief at 33. The Ordinance conforms to and is in harmony with state laws definition of recyclable material, and cannot be preempted. See City of Brookside Vill. v. Comeau, 633 S.W.2d 790, 796 (Tex. 1982). Finally, Plaintiffs submit a table allegedly showing distinctions between the Administrative Directive and state law. Pls. Brief at 34 (each of the Materials identified are explicitly non-recyclable or unmarketable solid waste). Any fair viewing shows that
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Plaintiffs so-called distinctions all relate to non-recyclable waste materials, not recyclables. The Ordinance is a fair exercise of the Citys power to regulate solid waste. c. Plaintiffs present only a flawed policy argument, which is not a proper basis for preemption.
Failing to make a proper legal argument, Plaintiffs state that the Ordinance is preempted because it restricts what state law promotes. Pls. Brief at 26. To be sure, policy matters appear to be the gist of their entire argument. In addition to its lack of legal support, Plaintiffs policy argument is improper and fatally flawed for the following reasons: First, Plaintiffs present no evidence to support their contention that the Ordinance will reduce recycling. Pls. Brief at 36. This is because it will not decrease recycling. Prior to enactment of the Ordinance, Jim Lattimore, an expert on the waste management/recycling industry, concluded that flow control will not decrease the recycling of solid waste collected in Dallas on the part of the Plaintiffs. He further concluded that [t]here is also no risk that the Ordinance will force haulers to classify recyclable materials as solid waste. Lattimore Decl. 27-8. Accordingly, the evidence establishes that there is no risk that recycling will be decreased because of the Ordinance. Second, on its face the Ordinance allows waste haulers to carry twice the amount of incidental amounts of non-recyclable waste over the state regulation cited by Plaintiffs, making the Ordinance much more lenient than state law. TCEQ rules allow for incidental amounts of non-recyclable waste to be included in the amount of 10% for each load, but that such incidental amounts may not average more than 5% for any six-month period. 30 Tex. Admin. Code 328.2(3). Under the Ordinance, for any six-month period, a waste hauler can maintain at the 10% level and does not have to meet the more-stringent 5% state-law threshold for incoming loads at a facility over a six-month period.
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Third, TCEQ rules cited by Plaintiffs were adopted to ensure that solid waste facilities could not evade regulatory scrutiny by operating as unregulated recycling facilities. See 27 Tex. Reg. 8569-70 (September 12, 2002) (adopting 30 Tex. Admin. Code 328.2). Plaintiffs ask this Court to turn that intent on its head and find that TCEQ has preempted regulatory scrutiny by local governments. There is no legal or factual support for Plaintiffs position, and it is contrary to public policy. Fourth, it appears that Plaintiffs true motive is to entirely evade regulatory scrutiny by moving loads of up to 100% waste materials as recyclable even if there may be no intent to ever recycle the load. See Pls. Brief at 29 (expressing Plaintiffs view that recyclable loads can be comprised of 10% of incidental materials, plus an unlimited amount of integrated and damaged materials) (emphasis added). Plaintiffs strategy of including unlimited amounts of non-recyclable materials in loads is self-serving and not in the interest of recycling. Moreover, it is contrary to TCEQs stated desire to crack down on sham recycling facilities. And fifth, Plaintiffs complain that there is no mechanism for requesting alternative compliance with the states incidental materials requirements for facilities. Pls. Brief at 36. This is irrelevant because the City cannot grant exemptions for state requirements. Moreover, to the extent an exemption, directive, or modification of the Administrative Directive is necessary and proper under the Ordinance, the Administrative Directive itself provides that it may be supplemented by the Director as may be needed. Indeed, the Director affirmed that she could chang[e] or amend[] this directive based, in part, on input from industry and/or City waste advisory committees. Nix Depo. 183:9-20. Moreover, the Director is explicitly authorized to permit processing and disposal of solid waste materials by private persons, firms, or corporations. Ordinance 18-10(b). Plaintiffs complaint is therefore without basis in fact.
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In sum, Plaintiffs have failed to meet their burden because they identify no statement to preempt with unmistakable clarity. There is also no support for Plaintiffs preemption
argument in the regulations they have identified, and public policy supports the Ordinance. 4. An Ordinary Delegation Asking An Expert Administrator To Define A Narrow Term In A Complex Statute Is A Wholly Proper Delegation As A Matter Of Law.
Plaintiffs also maintain that the City has wrongly delegated excessive responsibility to the Director to define the Ordinances provisions, including recyclable material, processing, generated, and found. Pls. Brief 16-25. This breathtaking theory, if accepted, would put an end to modern administrative law. Under both state and federal law, the legislature constantly tasks expert administrators with the duty to provide additional definition for technical terms in complex statutes. Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 843-44 (1984); R.R. Commn of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011). The entire Chevron doctrine is premised on the understanding that legislative bodies could scarcely function in todays complex society if left to spell out every conceivable feature of social and economic legislation. See, e.g., Am. Power & Light Co. v. S.E.C., 329 U.S. 90, 105 (1946); Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 465 (Tex. 1997). It is thus inconceivable that the City Council ran afoul of the non-delegation doctrine by asking an agency head (1) to exercise her expertise; (2) to confirm what materials, in a complex and changing industry, are capable of being recycled; and (3) to allow the clear and understood meaning of common words such as processing, generated, and found to apply. This narrow delegation, limited to providing additional guidance on the scope of concrete and ordinary terms, is a quintessential example of the lightest form of delegation found everywhere throughout Texas law and the U.S. Code.
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First, as described above, the Ordinance and Directive clearly set out what materials are recyclable. The recyclability of materials is something that changes as technology advances, and should be subject to regulatory change by an agency head such as the Director. The other words are clear and understood by the reader to have commonly-held definitions. See Pls. Brief at 15. There are no terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application as in the case relied upon by Plaintiffs. Compare JWJ Indus., Inc. v. Oswego Cnty., 795 F. Supp. 2d 211, 218 (N.D.N.Y. 2011) (quotation omitted) (relied upon at Pls. Brief at 15, 25), with Pls. Brief at 15 (stating that the plain language of the Ordinance is clear). Moreover, the JWJ Indus. court specifically affirmed that its analysis was based on a narrow finding, and currently applies only to the plaintiffs in [that] case. 795 F.Supp.2d at 219. Accordingly, it is both inapposite and without precedential value. The presence of one proper Administrative Directive and the clear and explicit standards in the Ordinance undermines Plaintiffs declaration that the Director may somehow, sometime in the future, define these words to mean something other than their clear and understood definitions. And it does not even begin to resemble the other handful of cases relied on by Plaintiffs (Brief at 15), which involved delegated authority to engage in case-by-case adjudication under what was literally a standardless scheme, see, e.g., Coffee City v. Thompson, 535 S.W.2d 758, 763 (Tex. Civ. App.Tyler 1976, writ refd n.r.e.). Recycling is a word with a generally accepted baseline definition; it is not standardless. Second, Plaintiffs have failed to articulate any limiting principle that would preserve any delegation of technical subjects to expert administrators other than their mere supposition that an agency head may, at some point in the future, define a word to mean something that it clearly does not. And this case does not bear any of the hallmarks suggesting it should join the only two statutes that the Supreme Court has found to lack the requisite intelligible principle.
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Whitman v. Am. Trucking Assns, 531 U.S. 457, 472 (2001) (one, for example, conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring fair competition). 5. The Ordinances Use Of Intelligible LanguageAs Further Clarified By Agency DirectiveIs Not At All Vague As Applied Here.
Plaintiffs vagueness challenge is unfounded. The primary factual predicate of their argument was eliminated the instant the Director promulgated guidance on this subject, and the additional words complained of (processing, generated, and found) have clear and understood definitions. See Pls. Brief at 15. In evaluating a facial challenge to a state law, the agencys limiting construction warrants consideration, Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.5 (1982), and the directive has made emphatically clear what material is recyclable (and hence exempted) and what material is not. Plaintiffs have no good-faith basis for maintaining this claimmuch as they had no reason to file a premature suit before the Director had sufficient opportunity to act. Moreover, vagueness challenges are typically reserved for as-applied, not facial, attacks. See, e.g., United States v. Mazurie, 419 U.S. 544, 550 (1975). [I]n cases involving no
constitutionally-protected conduct, that [a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. Roark & Hardee LP v. City of Austin, 522 F.3d 533, 547-48 (5th Cir. 2008) (internal quotation marks omitted, emphasis in original). Plaintiffs do not even attempt to carry that burden. For the area covered by the Ordinances sweep, there was never any realistic confusion about what material is recyclable and what is not. Plaintiffs are sophisticated entities in a highly regulated industry and confront these issues on a daily basis. In Plaintiffs own words, the plain language of the Ordinance is clear. Pls. Brief at 15. Their attempt to manufacture vagueness
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or controversy out of nothing is without merit. It is inconceivable that, as applied to the majority of their activities, they lacked a reasonable understanding of permitted and proscribed conduct. See Kolender v. Lawson, 461 U.S. 352, 357 (1983); see also Vill. of Hoffman Estates, 455 U.S. at 498 (economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action). Nor does this case present any danger of an official exercising unbounded discretion on an ad-hoc basis. Compare City of Chicago v. Morales, 527 U.S. 41, 64 (1999). The Director is not tasked with standing at the landfill and deciding whether each piece of trash falls within the statutory definition of recyclable. The Director is not making ad-hoc determinations regarding the meaning of ordinary and clear terms such as processing, generated, and found. To the contrary, the Director has been asked simply to provide additional precision, in a generally applicable way, to terms that provide sufficient guidance on their own. See Pls. Brief at 15 (Ordinance uses phrases and words that have commonly understood meanings in the solid waste business). If this statute is nevertheless vague, it is hard to imagine many statutes that could escape Plaintiffs theory. The legislative body is not required to define every statutory term with mathematical precision, Fernandes v. Limmer, 663 F.2d 619, 635-636 (5th Cir. Dec. 1981), and these concrete and clear words and phrasesrecyclable material, processing, generated, and foundare hardly beyond the competence of the sophisticated actors involved in this industry. 6. The City Charter Did Not Require Notice Or Hearings Before Adopting This PolicyBut Notice And Hearings Were Provided Anyway.
Plaintiffs assert that the City failed to provide the notice and hearing required by the City Charter (Pls. Brief at 37-40), but they are wrong and cannot possibly meet the extraordinary
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burden before them. First, because this issue involves Texas and not federal law, this Court is bound by Texas cases that direct courts in the following manner: [I]n reviewing the police powers of municipalities under the Texas Constitution to presume the ordinance is valid. . . . We may not interfere unless the ordinance is unreasonable and arbitrary-a clear abuse of municipal discretion.. . . This places an extraordinary burden on the party attacking the ordinance to show that no conclusive or even controversial or issuable fact or condition existed which would authorize the passage of the ordinance. . . . If reasonable minds may differ as to whether a particular ordinance has a substantial relationship to the protection of the general health, safety or welfare of the public, then there exists an issuable fact and the ordinance must stand. Price v. City of Junction, Tex., 711 F.2d 582, 588 (5th Cir. 1983). Second, the hearing requirement of the Charter is activated only where the Council alters the rates, rules or regulations applicable to such franchise. City of Dallas, Texas, Charter, Ch. XIV, 7. Here, of course, the Ordinance did not affect any right found in the franchise
agreement at all. See Nix Depo. 213:19-22 (Ordinance changes no rule or regulation of the franchises). The franchise agreements authorize a franchisee to use City streets for the collection of solid waste. Plaintiffs have no right, under the franchise or otherwise, to demand the privilege of absolute discretion to dispose trash at any location. The franchise agreement includes no right to disposal.20 Because not a single term in IESI or RWNTs franchises was altered or impaired, there was no need to provide them any process at all under the City Charter. In addition, the City did provide notice and a hearing before acting: it held several formal meetings, with the agenda published in advance, on the merits of flow control. See, e.g., Nix Aff. 12, Ex. B-D. The franchisees had the same notice that is deemed sufficient for all ordinary
20
Lantrip Depo. 10:5-18; 31:6-22 (the franchise agreement is silent on the issue and the City did not orally grant any right to dispose); Stefkovich Depo. 15:8-24 (stating that at least two Plaintiffs knew flow control was an issue when executing their franchise agreements with the City); McCord Depo. 15:21-24 (testifying that purpose of franchise agreements was [t]o allow haulers to operate their business in the City of Dallas, as opposed to choosing disposal sites outside City limits) (emphasis added); see also Lattimore Aff. 41-3.
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purposes, and the same opportunity to participate in the process as any other member of the publicand, indeed, many franchisees did participate in a variety of ways. Nothing in any of the franchise agreements or the City Charter requires the City to hold 180 individual hearings before passing any generally applicable law that might directly or indirectly bear on the subjectmatter of the franchise. D. Because Plaintiffs Purely Economic Harm Is Readily Quantifiable, There Is No Threat Of Any Irreparable Injury, Much Less A Substantial One. A permanent injunction is only permitted in the face of irreparable injury for which no adequate remedy at law exists, see Dresser-Rand Co. v. Virtual Automation Inc., 361 F.3d 831, 847-8 (5th Cir. 2004), and nothing resembles a qualifying irreparable injury in this case. Plaintiffs begin with the extraordinary assertion that every case involving any putative constitutional error qualifies automatically as irreparable harm. If that were true, most requests for injunctive relief in governmental litigation would simply skip over the irreparability prong. Yet courts routinely deny injunctions in that context in cases covering a broad swath of alleged constitutional violationsincluding purported violations of the Contract Clause. See, e.g., Wis. Cent. v. Pub. Serv. Commn of Wis., 95 F.3d 1359, 1366-67 (7th Cir. 1996); Sal Tinnerello & Sons, Inc. v. Town of Stonington, 1997 U.S. Dist. LEXIS 21351, at *17 (D. Conn. Aug. 26, 1997). Plaintiffs theory is impossible to square with these cases. And, of course, not a single case has held that a violation of the Contract Clause, as alleged here, constitutes per se irreparable injury. Plaintiffs also assert that any case regarding a criminal ordinance qualifies automatically as irreparable harm. Pls. Brief at 42 (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992)). However, this is not an instance [w]hen enforcement actions are imminent. See Morales, 504 U.S. at 381. Plaintiffs can comply with the Ordinance, which in their opinion would result only in added costs. See Lantrip Depo. 18:1-4 (when asked whether there was
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anything that could not be quantified in dollars and cents, Mr. Lantrip of Waste Management testified that [n]othing comes to mind.). However, even if actions were imminent, the
proper course under the case relied upon by Plaintiffs would be for the Court to abstain[] from entertaining this suit. See Morales, 504 U.S. at 381, fn.1 (citing Younger v. Harris, 401 U.S. 37 (1971)). Plaintiffs briefly argue that the Ordinance would destroy substantial portions of their businesses. Pls. Brief at 42-3. There is no support for this position, and Defendants have shown proof that this is not so. Finally, Plaintiffs do not allege that the Ordinance will send one or more of them into bankruptcy as in the only case they cite. See Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975) (also noting that bankruptcy sufficiently meets the standards for granting interim relief, but not making any finding as to permanent relief). Accordingly, any of
Plaintiffs generalized alleged pecuniary harms do not form the basis for an irreparable injury.21 Ultimately, it is unsurprising that Plaintiffs suffer no irreparable injuries. The focus of the standard is on the injury to the plaintiffnot the nature of the right asserted. In cases involving certain discrete kinds of constitutional injury, courts will presume irreparable harm automaticallybut only because the injury, such as the inability to speak on a subject, is forever lost the moment the opportunity has passed. In this case, by contrast, Plaintiffs entire theory of harm is the inability to enjoy an economic privilege supposedly hidden somewhere in a franchise agreementprecisely the kind of injury where money damages would . . . fully repair the harm. Humana, Inc. v. Jacobson, 804 F.2d 1390, 1394 (5th Cir. 1986); see also PCI Transp.
Plaintiffs also do not identify any irreparable harm to any individual Plaintiff. They generally state concepts such as enforcement and business loss as irreparable harms, but even if these were the sort of harms that a court would enjoin legislation over, Plaintiffs have failed to specify how any Plaintiff will suffer any irreparable harm. This leaves no basis on which this Court may grant permanent injunctive relief.
21
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Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535, 545 (5th Cir. 2005) (finding no irreparable harm from compromising a contract right). Plaintiffs purported loss, at its core, is simply the inability to run an economic enterprise in the manner that self-interested actors deem most profitable. See Enter. Intl, 762 F.2d at 47273 (additional costs, expenses, or outlays are the prototypical form of reparable injuries). And it makes no difference that Plaintiffs might be forced, in some unspecified way, to adjust their operational practices: virtually every new law or regulation requires some change in behavior, so the mere fact that Plaintiffs are required to comply with one additional rule cannot justify immediate relief. Plaintiffs, in short, can point to nothing more than perceived economic loss in their attempt to interpose the judiciary between a properly enacted law and the public the law is designed to protect. Courts demand more before legislation is enjoined. E. Because the Citys Anticipated Injury Trumps Plaintiffs Purported Harm, the Balance of Interests Tips Sharply in the Citys Favor. Plaintiffs are likewise mistaken that their threatened harm outweighs the Citys potential harm. Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 332 (5th Cir. 1981). The City passed the Ordinance to address the immediate need to combat the
shortcomings of the existing regulatory regime and to use green technology to make landfills obsolete by using emerging technologies to reuse the Citys solid waste in the form of energy, fuels, and reusable products. See, e.g., Nix Aff. Ex. D. The public is not required to await a true emergency before initiating the process of developing new technologies for the future. At a minimum, Plaintiffs ignore the very cost they elsewhere claim, incorrectly, is the sole motivation for the Ordinance: the City and public will lose substantial revenue if precluded from reassuming the exclusive role, as is the Citys right, in providing this customary and traditional government function. United Haulers, 550 U.S. at 344-5 n.7. If Plaintiffs purported economic harm is entitled to be factored in, then surely the Citys economic harm is also relevant.
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Accordingly, if a permanent injunction of the breadth sought by Plaintiffs is issued, the City will suffer an immediate, significant injury, while Plaintiffs will avoid only speculative and insubstantial pecuniary harm. Plaintiffs suggest that an injunction simply leaves the status quo in place, but they ignore that this is precisely the problem: the City, if permanently enjoined, would find itself unable to advance the initiatives that mark the future of the Citys most important planning to accommodate the future disposal needs of Dallas residents.22 Cash can always be returned at the end of a lawsuit, but the time lost by the City is irretrievable. The balance tips sharply in favor of the City. F. The Public Interest Is Already Reflected By An Ordinance Enacted By The Entity Tasked With Protecting The PublicEnjoining That Enactment To Further Plaintiffs Narrow Self-Interest Will Not Serve The Public Interest. Plaintiffs assert (Pls. Brief at 44-46) that the public interest is best served if the judiciary sets aside the Ordinance with respect to every entity that seeks to enter the waste management industry in Dallas. In addition to this staggering over breadth, Plaintiffs lose sight of a
significant fact: an injunction requires cancellation of a law duly enacted through the democratic process. It requires the judiciary to dictate the rule for a highly regulated industry. This is not to say that injunctive relief is never appropriate; but it does explain the need to identify a compelling case, at each factor, that warrants such an extraordinary interruption of ordinary governmental action in the economic and social arenaa forum that the constitutional design assumes local government will use to express the public interest, see U.S. Const. Amend. X.
Defendants note that while the Court stated that the City is capable of accommodating the future disposal needs of city residents without enacting the Flow Control Ordinance (Order at 31), this finding is at odds with agency heads, experts, and the City Council who have studied the issue in depth. Moreover, every day the Ordinance is enjoined, the City is another day removed from achieving its waste management goals as described in this Brief and the evidence cited herein.
22
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Plaintiffs further argue that the one statement regarding waste capacity and private recycling capacity included in the Local Solid Waste Management Plan (Pls. Ex. 19, the Plan) means that the public will not benefit from the Ordinance. Pls. Brief at 45. But this is irrelevant. There can be no doubt that flow control is not prohibited by regulation in Texas23, and that the Ordinance is a proper exercise of the Citys police power to benefit its citizens. See, e.g., Nix Aff. 12, Ex. B-D. Moreover, Plaintiffs ignore that the Plan states the Citys goal include getting to zero waste by 2040 with the goal of transition[ing] the City waste stream from trash to treasure. See Pls Ex. 19 at I. As described in briefings to City Council and elsewhere, the Ordinance is aimed at helping the City reach precisely this goal. Plaintiffs citation of just a handful of snippets from the Plan that align with their own narrow self-interests does not show that the Ordinance will not serve the public interest. Because the public interest is already clearly stated and served by the words of the Ordinance, this Court should resist Plaintiffs invitation at reinvention. VI. A. TRADITIONAL EQUITY FACTORS REQUIRE DENIAL OF PERMANENT INJUNCTION
Penal Ordinance Provides Adequate Remedy At Law By Allowing Franchisees To Defend Against Criminal Prosecution. It is generally to be assumed that state courts and prosecutors will observe constitutional limitations as expounded by this Court, and that the mere possibility of erroneous initial application of constitutional standards will usually not amount to the irreparable injury necessary to justify a disruption of orderly state proceedings.
Dombrowski v. Pfister, 380 U.S. 479 (1965) (distinguishing between abatement and traditional equity injunction considerations). If a penal ordinance is unconstitutional or void, and its
See U.S. EPAs Report to Congress: Flow Controls and Municipal Solid Waste, EPA Doc. No. 530-R-95-008, dated March 1995 (available at http://www.epa.gov/osw/nonhaz/municipal/landfill/flowctrl.htm) (In Texas, cities and counties may impose flow controls as part of local MSW [municipal solid waste] management planning.)
23
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enforcement threatens irreparable injury to vested property rights, then equity may intervene to protect those property rights. City of La Marque v. Braskey, 216 S.W.3d 861, 863 (Tex.App.Houston [1st Dist.] 2007, pet. denied) (citing State v. Morales, 869 S.W.2d 941, 945 (Tex. 1994)). If the court fails to find both that the law is unconstitutionally void, and that irreparable injury to a vested property right will result, then the court lacks jurisdiction. Id. If questions of validity and constitutionality of a penal ordinance can be resolved in a criminal proceeding, and vested property rights are not in jeopardy, then a court of equity should not intervene. Morales, 869 S.W.2d at 945. This limitation is not only true for suits seeking to enjoin enforcement of a penal ordinance, but also for suits seeking a declaratory judgment regarding the constitutionality of a penal statute or ordinance. Id. at 947. In the context of this case, exhausting legal remedies before being eligible for injunctive relief (see Grupo Mexicano, 527 U.S. at 318-19) means that the Plaintiffs must use whatever legal remedies that state and federal law give them, primarily the legal right to defend against any prosecution for violation of the Ordinance on the same grounds that they advance here. Federal courts will not normally enjoin the enforcement of local penal laws because the right to defense in criminal prosecution is an adequate remedy at law. Boyle v. Landry, 401 U.S. 77, 81 (1971); Dombrowski v. Pfister, 380 U.S. 479 (1965) (distinguishing between abatement and traditional equity injunction considerations); Stefanelli v. Minard, 342 U.S. 117, 122 (1951); Douglas v. City of Jeannette, 319 U.S. 157, 163 (1943) (Stone, J.). This Court should follow suit. B. Plaintiffs Are Not Entitled to Equitable Relief Enjoining Every Portion of the Ordinance for Anyone and Everyone. Plaintiffs improperly, and unreasonably, seek a permanent injunction preventing enforcement of every provision of the Ordinance against anyone. Pls. Brief at 46 (requesting the
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Court to declare the Ordinance void for all ). For the following reasons, this request is improper: 1. Future Franchisees and Consenting Franchisees Will Have No Grounds For Complaint About The Ordinance.
Even if the Court agreed with Plaintiffs Contract Clause, Due Course of Law, and charter-ordinance procedural claims, neither the claims nor Plaintiffs briefing contain any rationale for preventing enforcement of the entire Ordinance against future franchisees because all such claims require as an element that the plaintiff already had a waste hauling franchise with the City when the Ordinance was adopted. Similarly, there are no grounds for enjoining
enforcement of the entire Ordinance against franchisees who agree to be bound. 2. Portions of Ordinance not Subject to Specific Claims.
The Ordinance is severable. See City of Dallas, Texas, Code of Civil & Criminal Ordinances, 1-4. Neither the Amended Complaint nor evidence challenge such specific
Ordinance provisions as the enhanced record-keeping and auditing sections. See Ordinance 18-40. Only the enforcement of those provisions that the Amended Complaint alleges and that the evidence proves to be violative of some vested right can be enjoined, and then only as to Plaintiffs who have such vested right. 3. Only Two Plaintiffs Are Franchisees.
Plaintiffs who are not franchisees (i.e., every Plaintiff except for IESI and RWNT), of course, can have no alleged impaired right under a contract under Plaintiffs theories, and thus no claims under the Contracts Clause and City Charter provisions. 4. Plaintiffs fail to request equitable relief in reasonably specific terms.
Rule 65 of the Federal Rules of Civil Procedure requires an injunction to be specific in terms; and describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained. The scope of injunctive relief is dictated by the extent of the violation established. The district court must narrowly tailor an injunction to remedy the specific action which gives
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rise to the order. An injunction fails to meet these standards when it is overbroad or vague. The broadness of an injunction refers to the range of proscribed activity, while vagueness refers to the particularity with which the proscribed activity is described. John Doe #1 v. Veneman, 380 F.3d 807 (5th Cir. 2004) (quotations omitted). As shown above, Plaintiffs have asked only that this Court declare the Ordinance void. Their failure to request a reasonably scoped injunctive relief is fatal to their claims. C. The Court Must Respect The Democratic Process And Not Enjoin The Enforcement Of Ordinances Because Doing So Is Not Necessary And Not In The Public Interest. When a court enjoins the enforcement of a municipal ordinance adopted by a duly elected city council, the court overrules the decision of the elected representatives of the people and, thus, in a sense, interferes with the processes of democratic government. Ne. Fla. Chapter of Assn of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (preliminary injunctions). An ordinance which represents an exercise of the municipality's police powers is presumed to be constitutionally valid, with the burden of showing unreasonableness being cast upon those who challenge the ordinance. See Curto v. City of Harper Woods, 954 F.2d 1237, 1242 (6th Cir. 1992) . See Goldblatt v. Town of Hempstead, 369 U.S. 590, 595-96 (1962) (citing cases). In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. Thus, the Court has noted that the award of an interlocutory injunction by courts of equity has never been regarded as strictly a matter of right, . . .. The grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law. Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) (internal quotation marks, brackets, case changes, and citations omitted). Here, the Court should show restraint and not enjoin the Citys proper exercise of its police powers in enacting the Ordinance.
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D.
Individual Defendants are Immune. The City is the only proper defendant under the facts alleged by Plaintiffs, and the
Individual Defendants have official immunity from suit. See supra Section IV.D. VII. CONCLUSION
For these reasons, the Court should deny the request for permanent injunction, and dismiss the Complaint as to all Defendants or in the alternative enter judgment in favor of each Defendant.
Respectfully submitted, THOMAS P. PERKINS, JR., CITY ATTORNEY OF THE CITY OF DALLAS, TEXAS
/s/ Peter B. Haskel Peter B. Haskel Executive Assistant City Attorney Texas Bar No. 09198900 James B. McGuire Assistant City Attorney Texas Bar No. 24055939 Christopher J. Caso Senior Assistant City Attorney Texas Bar No. 03969230 City Hall 7BN 1500 Marilla Street Dallas, TX 75201 Tel.: (214) 670-3519 Fax: (214) 670-0622 peter.haskel@dallascityhall.com chris.caso@dallascityhall.com james.mcguire@dallascityhall.com ATTORNEYS FOR DEFENDANTS
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CERTIFICATE OF SERVICE I hereby certify that on June 5, 2012, an electronic copy of the foregoing opposition was filed with the Clerk of Court for the U.S. District Court for the Northern District of Texas, using the Courts CM/ECF system. I further certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
/s/ Peter B. Haskel Peter B. Haskel
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City's Reponse in Opposition To Flow Control Injuncition

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City's Reponse in Opposition To Flow Control Injuncition

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