favor the single Authority facility over all others, hoarding locally generated waste, squelching competition and leaving no room for outside investment. The limited exception permitting waste to be taken across state or county lines or to a facility other than the Authority landfill does not qualify the discriminatory character of the Authority rules. The County concedes that such permission "is typically available only in conjunction with a waste transfer agreement with another county." (F-H Resp. to Pls.' Facts, P 12.) In any event, the exception "merely reduce[s] the scope of the discrimination; for all categories of waste not excepted by the regulations, the discriminatory ban remain[s] in place." Fort Gratiot, 112 S. Ct. at 2025.
Defendants seek to distinguish Carbone on several grounds. First, they argue that the facility in Clarkstown was privately-owned, as opposed to the publicly-owned Authority facility at issue in this case. However, as the dissent clearly pointed out, the Clarkstown facility at issue in Carbone was essentially an agent of the municipality. 114 S. Ct. at 1695. It was built and operated pursuant to a contract with the municipality, performed a traditional municipal function and was soon to revert to municipal ownership. Id. The ordinance on its face referred to the transfer station as "the Town of Clarkstown solid waste facility." Id., App. § 2.A.1. These facts did not persuade the majority that the regime was non-discriminatory or that the less stringent Pike analysis should apply.
Further, several other courts examining flow control ordinances which directed trash to public, municipally-owned facilities have applied the more stringent test for cases of overt discrimination and found that the ordinances violated the dormant Commerce Clause. See, e.g., Waste Sys. Corp. v. County of Martin, 985 F.2d 1381, 1387 (8th Cir. 1993) (flow control ordinance directing all waste generated within county to county landfill discriminated against interstate commerce, "protecting in-state economic interests at the expense of out-of-state competitors"); Waste Recycling, Inc. v. Southeast Alabama Solid Waste Disposal Auth., 814 F. Supp. 1566, 1578 (M.D. Ala. 1993) (same). Accordingly, this court is not persuaded that the public nature of the Authority facility changes the applicable analysis.
Defendants also argue that Carbone should be narrowly construed and limited to the facts of the case. They claim that the Supreme Court struck down the Clarkstown ordinance only because Clarkstown identified no other purpose for the measure than to finance the local facility and because the facility ousted an existing competitor and was unnecessary in light of the availability of pre-existing processing services at the competitor's facility. On closer review, Defendants' characterization of Carbone does not wash.
First, a consent decree arising out of litigation brought against Clarkstown by the New York Department of Environmental Conservation required the town to build the transfer station at issue in that case. This goes a long way toward rebutting the implication that the station was either unnecessary or built solely to oust a local competitor. Second, the challenged ordinance itself stated that it was "intended to benefit the health, welfare and safety of Town residents" and was an exercise of "essential and proper governmental functions." Carbone, 114 S. Ct. at 1685, App., §§ I, II. Clarkstown also alleged that its flow control ordinance was "part of its overall plan for handling and monitoring all Clarkstown waste." ( Clarkstown Supreme Ct. Br., 1993 WL 433043 at *8.) The Court looked beyond these asserted purposes and, focusing specifically on the policy alleged to be discriminatory, found that in essence the only real purpose for the flow control ordinance itself was to finance the Clarkstown facility. The same rationale applies here. Accordingly, the court is not persuaded that Carbone should be construed as narrowly as Defendants may wish.
Finally, Defendants allege that this case is governed by the decision of the Third Circuit in J. Filiberto Sanitation, Inc. v. New Jersey Dep't of Envtl. Protection, 857 F.2d 913 (3d Cir. 1988). In Filiberto, a Hunterdon County, New Jersey ordinance required that all waste collected within the county be brought to a designated facility for processing and disposal. This flow control scheme is nearly identical to the one the United States Supreme Court found unconstitutional in Carbone. In Filiberto, the Third Circuit found the measure to be non-discriminatory in purpose because it was "triggered by the origin of the waste, and blind to the origin of the hauler." 857 F.2d at 921. The Filiberto court found the scheme was not discriminatory in effect because, after processing, the waste ultimately still would be deposited out-of-state. These same factors existed in Carbone, but the Supreme Court did not find them dispositive. Instead, the Supreme Court focused on a factor not addressed by the Third Circuit in Filiberto, namely, the "essential vice" of the statute, that it "bar[s] the import of the [waste] processing service." Carbone, 114 S. Ct. at 1683. The Filiberto scheme shared that vice. Accordingly, this court is not persuaded that either the rationale or the result
in Filiberto survive after Carbone.6
C. Availability of Alternatives to Flow Control
Because the Counties' flow control policy discriminates against interstate commerce, the burden shifts to the Counties to "demonstrate, under rigorous scrutiny, that [they have] no other means to advance [their] legitimate local interest." Carbone, 114 S. Ct. at 1683. Defendants claim that flow control was the only available means to advance their legitimate interest in securing long-term waste disposal capacity. Because this claim raises a disputed issue of material fact, Plaintiffs' motion for summary judgment must be denied.
Plaintiffs do not dispute that Defendants have a legitimate interest in ensuring sufficient long-term waste disposal capacity for their citizenry. The instant dispute centers on whether less discriminatory means were available to advance this local interest.
Plaintiffs allege in somewhat cursory fashion that there were other alternatives available to the Counties aside from the Plan. However, Defendants recite in detail the efforts they made to secure long-term waste disposal capacity after being informed by the State in 1985 that they would be required to submit a long-term waste disposal plan. Defendants assert that they were unable to secure a reliable long-term disposal contract with any existing in-state or out-of-state landfill within a reasonable distance from the Counties. Carter Aff., Defs.' App., Vol. I, Ex. B, P 19.). Under these circumstances, after significant study, the Counties determined that the best option was to build a tri-county landfill to be owned and operated by the Authority. (Id., P 20.)
Plaintiffs also claim that the Counties could have employed measures other than flow control, including taxes or municipal bonds, to finance the Authority landfill. In opposition, Defendants maintain that the Authority could not obtain financing to build the landfill without the flow control policy. (Finley Aff., Defs.' App., Ex. C., P 16.) By ensuring that a steady stream of trash mass will be deposited at the Authority landfill, flow control ensures the Authority a stable source of revenue in the form of tipping fees. Defendants allege that because the Counties are relatively small and poor, they could not afford to pay up-front the large capital costs of landfill construction. (Id., P 23.) Because the Authority had no real operating history and no significant assets, Defendants assert that flow control was necessary to permit the Authority to sell investment grade bonds and make the project economically feasible. (Id., P 16.)
Thus, there are disputed issues of material fact regarding the waste disposal alternatives available to the Counties and whether flow control was necessary to permit the Authority to build its landfill. These preclude the entry of summary judgment for Plaintiffs.
D. Defendants' Other Alleged Defenses
1. "Market Participant" Exception
Defendants also argue that the Commerce Clause should not apply to this case because they are acting as "market participants." Under the "market participant" doctrine, a state or its subdivision:
that acts as a market participant, rather than as a market regulator 'is not subject to the restraints of the Commerce Clause.' (citing Swin Resource [ Sys., Inc. v. Lycoming County, 883 F.2d 245, 249 (3d Cir. 1989)] (quoting White v. Massachusetts Council of Const. Employers, 460 U.S. 204, 208, 75 L. Ed. 2d 1, 103 S. Ct. 1042 (1983)), (cert. denied, 493 U.S. 1077, 107 L. Ed. 2d 1033, 110 S. Ct. 1127 (1990)]. Put roughly, the market participant exception protects states when they are acting as parties to a commercial transaction, rather than (as, for example, when adopting a tax scheme)  as market regulators. See Reeves, Inc. v. Stake, 447 U.S. 429, 437, 65 L. Ed. 2d 244, 100 S. Ct. 2271 (1980).
Trojan Technologies, Inc. v. Commonwealth of Pennsylvania, 916 F.2d 903, 910 (3d Cir. 1990) (parallel citations omitted), cert. denied, 501 U.S. 1212, 115 L. Ed. 2d 986, 111 S. Ct. 2814 (1991). Thus, when a state enters a market as a buyer (see White, 460 U.S. at 208; Trojan, 916 F.2d at 910) or seller (see Reeves, 447 U.S. at 437; Swin, 883 F.2d at 249) or by directly subsidizing local industry ( Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 806, 49 L. Ed. 2d 220, 96 S. Ct. 2488 (1976)), it is generally permitted to act as a normal market participant. As such, the state may use the leverage its investment and position as a market participant afford it to determine with whom and on what terms it will do business.
However, as the Supreme Court has taken care to point out in recent cases, there are limits to this doctrine. In South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82, 81 L. Ed. 2d 71, 104 S. Ct. 2237 (1984), the Court rejected attempts by the State of Alaska to condition sales of its timber on the purchaser's agreement to process the lumber within the State of Alaska. The Court stated that
the limit of the market-participant doctrine must be that it allows a State to impose burdens on commerce within the market in which it is a participant, but allows it to go no further. The State may not impose conditions, whether by statute, regulation, or contract, that have a substantial regulatory effect outside of that particular market. Unless the "market" is relatively narrowly defined, the doctrine has the potential of swallowing up the rule that States may not impose substantial burdens on interstate commerce even if they act with permissible state purpose of fostering local industry.