in the northern part of the state. Plaintiff Bret Schundler is the Mayor of Jersey City and plaintiff John Rooney is the Mayor of Northvale, although both mayors are named as plaintiffs simply in their official capacities as mayors of the municipalities and not as taxpayers or in any other capacity that would make their interest in the case any different from that of the municipality that they represent. All of the municipal plaintiffs are required to dispose of waste generated in the municipality through the waste flow plan devised by the district in which that municipality is located. If the municipal plaintiffs were not restrained by the waste flow regulations, they could, at least in the immediate future, obtain municipal waste disposal services at a lower cost than is currently available. (Guerra Aff. at P 12; Dopirak Aff. at P 12; Czech Aff. at P 11; Rooney Aff. at P 11.)
6. Intervenor-defendants Passaic County Utilities Authority, Essex County Utilities Authority, Hudson County Improvement Authority, and Mercer County Improvement Authority are each Solid Waste Management Districts established by the 1975 amendments to the SWMA. N.J.S.A. 13:1E-20. Each authority promulgates a district plan, which consists of some combination of designated disposal facilities, transfer stations, and contracts for the disposal and hauling of waste. See, e.g., N.J.A.C. 7:26-6. Not all solid waste, however, is ultimately disposed of within the boundaries of the state of New Jersey. For example, much of the solid waste handled by the Mercer County Improvement Authority is ultimately disposed of in the G.R.O.W.S. landfill in Bucks County, Pennsylvania. N.J.A.C. 7:26-6.5(1). Nonetheless, this waste still passes through the Mercer County Transfer Station, id., which charges a tipping fee that is generally conceded to be above market rate.
7. If the waste flow regulations are disrupted, the revenues of the county authorities would be similarly disrupted. This effect would be caused by a loss of business to out of state processing and disposal facilities or by lower rates charged to compete with these facilities. (Lambert Cert. at P 12; Lund Cert. at P 30; Ross Aff. at P 18; Vaccarino Cert. at P 15.) Furthermore, in reliance upon the steady revenue generated by the waste flow regulations, the county authorities have incurred over one billion dollars in debt in the form of revenue bonds and contractual obligations, much of which is guaranteed by the respective counties, other public authorities such as the Port Authority of New York and New Jersey, or financial institutions. Wholesale disruption of the waste flow regulations could impair the ability of the county authorities to finance this debt and could ultimately force them into default on the bonds or contractual obligations. (Whelan Aff. at PP 4-5.)
8. Intervenor-defendant CCERA owns and operates the South Camden Resource Recovery Facility ("SCRRF"), an incinerator that acts as the disposal facility for much of the solid waste generated in Camden County, New Jersey. See N.J.A.C. 7:26-6.5(d). Because the disposal of solid waste at the SCRRF is generally more expensive than at an out of state disposal facility, SCRRF would not operate at full capacity if the waste flow regulations were enjoined, with a concomitant loss of income by CCERA. (Karpenski Decl. at P 12.)
9. New Jersey generates approximately seven million tons of solid waste per annum, or approximately 24,500 tons per day. (Sondermeyer Aff. at P 2.) 75% of this waste is type 10, or residential and commercial municipal waste, 20% is type 13, or bulky and construction waste, and the remaining 5% is made up of other types of waste.
10. New Jersey currently requires all waste transported out of the state to pass through a transfer station. (Id. at P 5.) Currently, New Jersey has the transfer station capacity to inspect only about 14% of the solid waste generated in the state. (Id. at P 6.) Therefore, New Jersey could not maintain this policy if the waste flow regulations were immediately dismantled. The unregulated transportation of waste out of the state would present environmental hazards. (Id. at 7.)
11. Approximately 469 solid waste collectors currently hold certificates to do business in New Jersey. (Id. at 9.) These haulers are required by state statute to file a tariff with the state. See N.J.S.A. 48:13A-7.1 et seq. While the rates charged by the waste haulers are now relatively stable due to the constraints of the waste flow system, dismantling the system would change the operating expenses of these haulers and require each hauler to file a new tariff each time it changed its rate. (Id. at PP 9-10.)
12. The waste management plan envisioned under the SWMA depends heavily upon the steady revenue flow to each county authority described above. (Gates Cert. at P 1.) Therefore, dismantling the waste flow regulations and allowing out-of-state competition could suddenly disrupt the entire scheme of waste flow management in New Jersey. (Id. at P 8.) In the long term, this disruption will discourage (a) the creation of new waste disposal facilities and (b) the maintenance and expansion of existing facilities unless a new comprehensive regulatory scheme is implemented. On the basis of the current record, the Court cannot determine if such a system is feasible in light of Commerce Clause restrictions.
CONCLUSIONS OF LAW
I. Preliminary Injunction Standard
In order to obtain a preliminary injunction, the moving party must show "(1) a reasonable probability of eventual success in the litigation, and (2) that it will be irreparably injured pendente lite if relief is not granted . . . ." Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994) (internal quotations omitted). A failure to show either of these elements will result in the denial of the injunction. Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989). Where relevant, the court should also take into account (3) the possibility of harm to other persons from the grant or denial of the injunction, and (4) the public interest. Id.; Eli Lilly and Co. v. Premo Pharmaceutical Labs., Inc., 630 F.2d 120, 126 (3d Cir.), cert. denied, 449 U.S. 1014, 66 L. Ed. 2d 473, 101 S. Ct. 573 (1980). The grant or denial of a preliminary injunction lies within "the sound discretion of the district judge, who must balance all of these factors in making a decision." Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir. 1982). All four factors should favor preliminary relief before the injunction is granted. American Tel. & Tel. v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994) ("AT & T"), cert. denied, 131 L. Ed. 2d 757, 115 S. Ct. 1838 (1995); S & R Corp. v. Jiffy Lube Int'l, Inc., 968 F.2d 371, 374 (3d Cir. 1992).
A. Atlantic Coast
1) Likelihood of Success on the Merits
In light of the Third Circuit's decision, the Court finds that Atlantic Coast has made a prima facie showing of likelihood of success on the merits. Under the "heightened scrutiny" test adopted by the Third Circuit, "'the burden falls on the State to demonstrate both that the statute serves a legitimate local purpose, and that this purpose could not be served as well by available nondiscriminatory means.'" 48 F.3d at 717 (quoting Maine v. Taylor, 477 U.S. 131, 138, 91 L. Ed. 2d 110, 106 S. Ct. 2440 (1986)). The Supreme Court recently phrased this test as requiring the state to prove "that it has no other means to advance a legitimate local interest." C & A Carbone, 114 S. Ct. at 1683. For the purposes of this motion, the Court finds that defendants have not "accomplished the much more onerous task of demonstrating that there is no alternative to its waste flow regulations that would accomplish its legitimate objectives." Atlantic Coast, 48 F.3d at 718.
While defendants devote substantial portions of their briefs to the likelihood of success on the merits, their arguments do not seriously contradict the assertion that, at this stage of the litigation, Atlantic Coast is likely to succeed on its claim. First, defendants argue that if Atlantic Coast's case were certain to succeed, the Third Circuit would not have remanded the case for further proceedings, but rather would have directed this Court to enter judgment in favor of Atlantic Coast. While this argument possesses a certain simplistic appeal, it does not recognize that a plaintiff seeking injunctive relief need show only a likelihood of success on the merits, not a certainty of success. Indeed, the Third Circuit noted that while the Court had denied Atlantic Coast's previous application for preliminary relief, Atlantic Coast's likelihood of success was "materially different" under the more stringent heightened scrutiny test. 48 F.3d at 718.
Defendants also point to a number of arguably legitimate state interests served by the waste flow regulations, such as avoiding out-of-state waste disposal liability, financing, inspecting solid waste, maintaining sufficient disposal capacity, waste management planning, and maintaining incinerators. (County Authorities' Brief at 46-49.) However, while invited to reopen the record, defendants have not offered any expert or other testimony to show that no feasible nondiscriminatory alternatives could adequately serve these goals. Instead, defendants simply state why systems adopted by other states would not work in New Jersey, (State's Brief at 33-39), and that it is not clear that feasible alternatives exist to the current scheme. (County Authorities' Brief at 50.) These arguments do not meet the "onerous" burden of showing that even the relatively simple (some would say simplistic) alternatives suggested by the Supreme Court in C & A Carbone, the "unobstructed flow of interstate commerce" and "general taxes or municipal bonds," would be infeasible alternatives to the current discriminatory regime.
Finally, defendants note that the United States Senate has recently passed a bill that would retroactively authorize municipal waste flow regulations, S. 534, 104th Cong., 1st Sess. (May 16, 1995), and that a similar bill was recently reported to the House floor by the Commerce Committee, House of Rep. Comm. on Commerce, 104th Cong., 1st Sess., A Bill to Amend the Solid Waste Disposal Act (May 16, 1995.) Because Congress may affirmatively authorize states to regulate interstate commerce, see Norfolk Southern Corp. v. Oberly, 822 F.2d 388, 392 (3d Cir. 1987), passage of this bill would resolve the controversy over the New Jersey waste flow regulations. Nonetheless, congressional bills, even those overwhelmingly passed by one house of Congress,
often stall in the legislative process, and defendants have not cited the Court to any authority that it should abstain from granting preliminary injunctive relief based on the contingency that Congress might enact the law at issue.
Therefore, Atlantic Coast has made a strong showing of likelihood of success on the merits.
2) Irreparable Harm
Plaintiffs have cited authorities stating that constitutional violations in general, and dormant Commerce Clause violations in particular, constitute irreparable injury warranting injunctive relief. See Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2948 at 440 ("When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.") (1973); Allen v. Minnesota, 867 F. Supp. 853, 859 (D. Minn. 1994) (violation of Commerce and Contracts Clauses constitutes irreparable harm); Citicorp Servs., Inc. v. Gillespie, 712 F. Supp. 749, 753-54 (N.D. Cal. 1989) (Commerce Clause violation "give[s] rise to a presumption of irreparable harm"); Government Suppliers Consolidating Servs., Inc. v. Bayh, 734 F. Supp. 853 (S.D. Ind. 1990) (waste flow regulation which violates Commerce Clause causes irreparable injury regardless of showing of economic harm); C & A Carbone, Inc. v. Town of Clarkstown, 770 F. Supp. 848, 854 (S.D.N.Y. 1991) (local waste flow regulation that violates Commerce Clause "unquestionably constitutes irreparable injury."). Defendants, on the other hand, argue that unlike "personal" constitutional rights such as the First Amendment freedoms at issue in Elrod v. Burns, violations of "structural" constitutional rights such as the dormant Commerce Clause do not constitute per se irreparable harm. See American Petroleum Inst. v. Jorling, 710 F. Supp. 421, 431 (N.D.N.Y. 1989); Norfolk Southern Corp. v. Oberly, 594 F. Supp. 514, 522 (D. Del. 1984); Grand Central Sanitation, Inc. v. City of Bethlehem, 1994 U.S. Dist. LEXIS 15825, No. 94-5928, mem. op. at 4-5 (E.D. Pa. Nov. 2, 1994).
The proper course lies between those charted by the respective parties. The Court holds that a violation of rights under the dormant Commerce Clause constitutes the "irreparable harm" necessary for a plaintiff to avoid denial of a preliminary injunction on this ground only. In a case such as this, however, where the Court must carefully weigh the moving party's likelihood of success on the merits and degree of irreparable harm against the irreparable harm that preliminary relief may cause to the opposing parties and the public, the violation of dormant Commerce Clause rights unaccompanied by other irreparable harm does not weigh heavily on the moving party's side of the scale. See Constructors Ass'n of W. Penna. v. Kreps, 573 F.2d 811, 820 n.33 (3d Cir. 1978) ("unlike First Amendment rights whose deprivation even from minimal periods of time constitutes irreparable injury [citing Elrod ], a denial of equal protection rights may be more or less serious depending on the other injuries which accompany such deprivation."). See also C & A Carbone, 770 F. Supp. at 854 (finding irreparable injury in violation of dormant Commerce Clause rights along with economic harm that would be impossible to measure); Government Suppliers, 734 F. Supp. at 854 (same).
Atlantic Coast argues that in addition to the deprivation of its constitutional rights, it will also be forced out of business if the New Jersey waste flow regulations remain in force. This circuit has recognized that the destruction of a business may constitute irreparable harm warranting injunctive relief. See Instant Air Freight, 882 F.2d at 802. Atlantic Coast has shown that it is losing money, and doing so more quickly than it was when it accepted New Jersey waste. Nonetheless, this testimony does not show that Atlantic Coast will go out of business if it is not granted relief pendente lite. If anything, this proposition is contradicted by Sheehan's statement that United Waste would stop supporting Atlantic Coast if the waste flow regulations were upheld. This statement implies that United Waste will continue to support Atlantic Coast pending a final resolution of this case. Therefore, the Court finds that Atlantic Coast has not made the necessary clear showing that denial of the preliminary injunction will force it out of business. See id. at 801-03.
Nonetheless, Atlantic Coast has suffered a high degree of monetary damage over an extended period of time from a waste flow regulation that, in light of the Third Circuit's decision and the current state of the record, is likely to be unconstitutional. Furthermore, this damage was inflicted by the State of New Jersey and its agencies, all of which are immune from money damages in this Court under the Eleventh Amendment. Where the Eleventh Amendment bars recovery of monetary damages from state entities, legal remedies are inadequate and the plaintiff has shown the irreparable harm necessary for injunctive relief. Temple Univ. v. White, 941 F.2d 201, 215 (3d Cir. 1991), cert. denied, 502 U.S. 1032, 112 S. Ct. 873, 116 L. Ed. 2d 778 (1992). The Court finds that Atlantic Coast has suffered irreparable harm in the money damages it has suffered that it cannot recover from the state entities.
3) Harm to Defendants and the Public
Defendants have shown that enjoining the waste flow regulations may reduce the value or cause default of the county authorities' publicly issued bonds, cause monetary damage to entities such as CCERA that own waste disposal facilities within the waste flow regulation scheme, cause administrative inconvenience for the state, and potentially undermine the goals of New Jersey's comprehensive waste flow plan. They also argue that the current scheme came about as a solution to years of difficulty in waste management in New Jersey, that the scheme was initially given approval by courts such as the Third Circuit in J. Filiberto, and that the program has largely been successful. Furthermore, disturbing the highly intertwined network of waste haulers, transfer stations, and disposal facilities (some of which are financed by tax-exempt bonds) created by the waste flow regulations would result in the disruption of not only the expectations but also the contractual rights and obligations of many participants in district plans who are not parties to this litigation, including purchasers of municipal bonds and any entities or institutions having credit enhancement obligations on that debt. Finally, New Jersey is not currently prepared to handle its solid waste flow stream without waste flow regulations, and disbanding the regulations may present significant environmental concerns.
However, defendants have not shown that the narrow relief sought by Atlantic Coast will cause this damage. Atlantic Coast processes only C & D waste, which the waste flow regulations classify as type 13 waste. While type 13 waste makes up approximately 20% of New Jersey's solid waste, it is defined as almost all "bulky" waste, including:
Large items of waste material, such as, appliances, furniture, whole trees, branches, tree trunks and stumps. Also included are waste building materials and rubble resulting from construction, remodeling, repair and demolition operations on houses, commercial buildings, pavements and other structures. Discarded automobiles, trucks and trailers and large vehicle parts, and tires are included under this category.
N.J.A.C. 7:26-2.13(g) (iii).
While defendants have shown that enjoining a large segment of the waste flow regulations will cause them harm, and that type 13 waste makes up 20% of New Jersey's solid waste stream, the current record shows neither the portion of the 20% that is made up of the type of C & D waste that Atlantic Coast processes nor the effect that an injunction limited to this material would have on defendants and the public. In its previous opinion, the Court found that Atlantic Coast's permit from the Pennsylvania Department of Environmental Resources ("PaDER") allowed it to process waste including "uncontaminated rock, uncontaminated ferrous metals, wood, recyclables[,] uncontaminated soil, and non-marketable construction and demolition materials." (Sept. 8, 1993, Tr. at 14.) There is no evidence in the record from which the Court can adduce the extent to which the 20% of waste generally classified as type 13 waste is made up of the C & D waste specified in Atlantic Coast's permit.
In the absence of a showing that the relief requested by Atlantic Coast will dismantle a significant portion of the existing waste flow scheme, defendants' warnings about the harm that preliminary relief will cause them are unconvincing. Although defendants predict a significant disruption of revenues, significant administrative burdens, and a significant increase in the regulation of waste heading out of state, the current record simply does not allow the Court to quantify the burdens which would be imposed by an injunction generally affecting waste of the type hauled by Atlantic Coast.
Atlantic Coast's proposed injunction will affect less than 20% of the waste generated in New Jersey, and therefore will not frustrate the goals of programs such as the SWMA. The injunction will affect only those involved with C & D waste, and will not cause widespread disruption of New Jersey solid waste industry. C & D waste is also relatively clean, and does not present significant environmental concerns.
Indeed, the only significant impact on others that the Court perceives from granting this relief is requiring disposal facilities in New Jersey to compete with out of state facilities for the disposal of C & D waste, an obligation that is mandated by the Supreme Court's interpretation of the dormant Commerce Clause.