city response to flow control injunction

8/3/2019 City Response to Flow Control Injunction

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

NATIONAL SOLID WASTES

MANAGEMENT ASSOCIATION,

BLUEBONNET WASTE CONTROL,

INC., IESI TX CORPORATION,REPUBLIC WASTE SERVICES OF

TEXAS, LTD, ALLIED WASTE SYSTEM,

INC., CAMELOT LANDFILL TX, LP,

WASTE MANAGEMENT OF TEXAS,

INC., WM RECYCLE AMERICA, LLC,

AND BUSINESSES AGAINST FLOW

CONTROL,

Plaintiffs,

v.

THE CITY OF DALLAS, MIKE

RAWLINGS, PAULINE MEDRANO,

TENNELL ATKINS, DWAINE

CARAWAY, MONICA ALONZO,

CAROLYN DAVIS, JERRY ALLEN,

LINDA KOOP, AND ANGELA HUNT,

Defendants.

CIVIL ACTION NO.

3:11-CV-03200-O

DEFENDANTS RESPONSE IN OPPOSITION TO PLAINTIFFS APPLICATION

FOR A PRELIMINARY INJUNCTION

Case 3:11-cv-03200-O Document 16 Filed 12/20/11 Page 1 of 33 PageID 278


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TABLE OF CONTENTS

Page

INTRODUCTION ...........................................................................................................................1STATEMENT OF FACTS ..............................................................................................................2

A. The History And Future Of The Citys Waste Management .......................2B. The Franchise Ordinances Granted By The City In 2007............................4C. The Flow Control Ordinance .......................................................................5

ARGUMENT ...................................................................................................................................7I. Plaintiffs Application Should Be Denied Because Plaintiffs Have No

Chance Of Prevailing On The Merits ......................................................................8

A. Because The Ordinance Cannot Possibly Impair A Right ThatDoes Not Exist In The Contract, Plaintiffs Claim Under TheContract Clause Fails ...................................................................................8

B. The Ordinance Does Not Violate The Texas Constitutions DueCourse Of Law Provision Because The Ordinance Is A

Reasonable And Legitimate Exercise Of The Citys Police Power ...........13C. The Ordinance Is A Proper Exercise Of The Citys Police Power,

Not Any Kind Of Forbidden Tax ...............................................................14D. Because The Ordinance Does Not Regulate RecyclingButDoes

Regulate Exactly What The City Is Authorized To Regulate Under

State LawPlaintiffs Claim Under The Sherman Act Fails ....................16E. Plaintiffs Are Incorrect That There Is Any Conflict, Much Less A

Direct Conflict, Between State Law And The Ordinance ..........................17F. An Ordinary Delegation Asking An Expert Administrator To

Define A Narrow Term In A Complex Statute Is A WhollyProperDelegation As A Matter Of Law ................................................................19

G. The Ordinances Use Of Intelligible LanguageAs FurtherClarified By Agency DirectiveIs Not At All Vague As Applied

Here ............................................................................................................20H. The City Charter Did Not Require Notice Or Hearings Before

Adopting This PolicyBut Notice And Hearings Were Provided

Anyway ......................................................................................................22



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TABLE OF CONTENTS

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ii

II. Because Plaintiffs Purely Economic Harm Is Readily Quantifiable, ThereIs No Threat Of Any Irreparable Injury, Much Less A Substantial One ...............22

III. Because The Citys Anticipated Injury Trumps Plaintiffs PurportedHarm, The Balance Of Interests Tips Sharply In The Citys Favor ......................24

IV. The Public Interest Is Already Reflected By An Ordinance Enacted ByThe Entity Tasked With Protecting The PublicEnjoining That

Enactment To Further Plaintiffs Narrow Self-Interest Will Not Serve ThePublic Interest ........................................................................................................25

CONCLUSION ..............................................................................................................................25



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TABLE OF AUTHORITIES

Page(s)

Cases

Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978) ................................................. 8, 10

Am. Power & Light Co. v. S.E.C., 329 U.S. 90 (1946) ................................................................. 20

Apani Sw., Inc. v. Coca-Cola Enters., Inc., 300 F.3d 620 (5th Cir. 2002) ................................... 16

Ben Oehrleins & Sons & Daughter, Inc. v. Hennepin Cnty., 115 F.3d 1372 (8th Cir.

1997) ......................................................................................................................................... 16

Cent. Ambul. Serv., Inc. v. City of Dallas, 631 F. Supp. 366 (N.D. Tex. 1986) ..................... 16, 18

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) .................................................................... 19City of Brookside Vill. v. Comeau, 633 S.W.2d 790 (Tex. 1982) ................................................. 17

City of Chicago v. Morales, 527 U.S. 41 (1999) .......................................................................... 21

Coffee City v. Thompson, 535 S.W.2d 758 (Tex. Civ. App.Tyler 1976, writ refd

n.r.e.)......................................................................................................................................... 20

Collins v. City of Harker Heights, 503 U.S. 115 (1992) ............................................................... 14

Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328 (5th Cir. 1981) ............................ 24

Energy Reserves Grp., Inc. v. Kan. Power & Light Co. , 459 U.S. 400 (1983) ............................ 11

Enter. Intl, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464 (5th

Cir. 1985).............................................................................................................................. 8, 23

FCC v. Beach Commcns, Inc., 508 U.S. 307 (1993) ................................................................... 14

Fernandez v. Limmer, 663 F.2d 619 (5th Cir. 1981) .................................................................... 21

Gen. Motors Corp. v. Romein, 503 U.S. 181 (1992) ...................................................................... 9

Gerhart v. Hayes, 201 F.3d 646 (5th Cir. 2000) ........................................................................... 15

Home Builders Assn of Miss., Inc. v. City of Madison, 143 F.3d 1006 (5th Cir. 1998) .............. 15

House the Homeless, Inc. v. Widnall, 94 F.3d 176 (5th Cir. 1996) ................................................ 8

Humana, Inc. v. Jacobson,804 F.2d 1390 (5th Cir. 1986) ........................................................... 23

Kolender v. Lawson, 461 U.S. 352 (1983) .................................................................................... 21

Leibowitz v. City of Mineola, 660 F. Supp. 2d 775 (E.D. Tex. 2009) .......................................... 17



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Page(s)

iv

Lipscomb v. Columbus Mun. Separate Sch. Dist., 269 F.3d 494 (5th Cir. 2001) ......................... 12

Lowenberg v. City of Dallas, 261 S.W.3d 54 (Tex. 2008) ..................................................... 14, 15

Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618 (5th Cir. 1985) ................ 22

Ne. Fla. Chapter of Assn of Gen. Contractors of Am. v. City of Jacksonville, 896F.2d 1283 (11th Cir. 1990) ......................................................................................................... 8

PCI Transp. Inc. v. Fort Worth & W. R.R. Co., 418 F.3d 535 (5th Cir. 2005) ............................. 23

R.R. Commn of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d

619 (Tex. 2011) ........................................................................................................................ 20

Sal Tinnerello & Sonsv. Town of Stonington, 1997 U.S. Dist. LEXIS 21351 (D.Conn. Aug. 26, 1997) ............................................................................................................... 23

Surgical Care Ctr. of Hammond, L.C. v. Hosp. Serv. Dist. No. 1 of TangipahoaParish, 171 F.3d 231 (5th Cir. 1999) ....................................................................................... 16

Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454 (Tex. 1997) ................ 20

Texas Power & Light Co. v. City of Garland, 431 S.W.2d 511 (Tex. 1968) ......................... 13, 14

U.S. Trust Co. of N.Y. v. New Jersey, 431 U.S. 1 (1977) .......................................................... 9, 10

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) ............................................. 10

United States v. Grinnell Corp., 384 U.S. 563 (1966) .................................................................. 16

United States v. Mazurie, 419 U.S. 544 (1975) ............................................................................ 21

Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926 (Tex. 1995) .................................................... 13

Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ....................... 21

Whiting v. Univ. of S. Miss., 451 F.3d 339 (5th Cir. 2006)........................................................... 11

Whitman v. Am. Trucking Assocs., 531 U.S. 457 (2001) .............................................................. 20

Wis. Cent. v. PSC, 95 F.3d 1359 (7th Cir. 1996) .......................................................................... 23

Constitutional ProvisionsTex. Const. art. I, 19 .................................................................................................................. 13



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U.S. Const. Amend. X .................................................................................................................. 25

U.S. Const. art. I, 10, cl. 1 (Contract Clause) .....................................................................passim

Statutes15 U.S.C. 2 ................................................................................................................................. 16

42 U.S.C. 1983 ........................................................................................................................... 14

42 U.S.C. 6901(a)(4) .................................................................................................................. 11

Tex. Health & Safety Code 361.421(5) ..................................................................................... 19

Tex. Health & Safety Code 363.006(b) ..................................................................................... 19

Tex. Health & Safety Code 363.111(a) ........................................................................... 3, 18, 19

Tex. Health & Safety Code 363.117 ............................................................................................ 3

Regulations30 Tex. Admin. Code 328.2(3) .................................................................................................... 7

30 Tex. Admin. Code 328.8(e) .................................................................................................... 7

Other AuthoritiesPeterson & Abramowitz, Municipal Solid Waste Flow Control in the Post-Carbone

World, 22 Fordham Urb. L.J. 361 (1995) ................................................................................... 4



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INTRODUCTION

Contrary to Plaintiffs contentions, there is no constitutional right to operate a landfill.

This lawsuit is Plaintiffs attempt to accomplish through litigation what they failed to accomplish

through the political process. The Dallas City Council 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. The Supreme Court itself has warned

against judicial interfere[nce] in this context because [w]aste disposal is both typically and

traditionally a local government function. United Haulers Assn, Inc. v. Oneida-Herkimer Sol-

id Waste Mgmt. Auth., 550 U.S. 330, 344 (2007).

Plaintiffs nevertheless insist that this was nothing more than the City acting in a proprie-

tary capacity to advance its own economic self-interest. Plaintiffs reach this conclusion, howev-

er, by wholly ignoring any of the public health and welfare reasons listed explicitly in the Ordi-

nance itself and recounted in painstaking detail in the legislative record. Plaintiffs various at-

tempts to undercut this legitimate social policy are entirely unavailing. Plaintiffs look to the

Contract Clause, but can only assert a right found nowhere in a 42-page contract, while ignoring

explicit language that confirms that Plaintiffs bear the risk of regulatory change; Plaintiffs pur-

port to identify preemptive conflicts with state law that simply do not exist; and they 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 not

leaving the Ordinance valid even if based solely on economic interests.

Plaintiffs views are also ultimately incompatible with the Supreme Courts own assess-

ment of flow control in United Haulers, a case they never once cite. In that decision, 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 dispos-



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al, 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, and not the judici-

ary, is the appropriate restraint on state action. 550 U.S. at 342-45.

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 agreement, and to conclude that the Constitution precludes the City from enacting

ordinary social and economic legislation. There is nothing, however, in the contract or the Con-

stitution 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 state municipality. Plaintiffs are profoundly wrong to insist that the

federal judiciary inject itself in the middle of this local policy issue.

STATEMENT OF FACTS

A. 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 Haul-

ers, 550 U.S. at 344 (internal quotation marks omitted). Effective waste management requires

public coordination, collective action, administrative oversight, predictability, and sufficient re-

sources, 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 collec-



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tion, handling, transportation, storage, processing, and disposal, Tex. Health & Safety Code

363.111(a), and to operate all or part of 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 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 satis-

fy the Citys existing waste-management needs.

Today, however, the Citys long-term waste management goals extend beyond 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 City Council Minutes (Sept.

7, 2011), Ex. C at 15. McCommas Bluff is an integral part of that plan, as it has become an

award-winning, professionally engineered, and highly regulated landfill, owned and operated by

the City. The City already generates green energy from decomposing waste at McCommas

Bluff sufficient to heat 25,000 homes each year, and the U.S. Conference of Mayors awarded its

2010 Green City Award to the City for its landfill gas-management initiatives.

The Citys regulatory scheme, at issue in this lawsuit, is necessary for the City to imple-

ment green technology and to promote the most efficient use of City resources. Cutting-edge

biotechnology 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 a

prevalent means of securing a sufficient volume of waste to achieve the requisite economies of

scale. In order to plan for a system of facilitiesto recover the majority of waste and reuse it



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beneficiallyestablishing a reliable and steady stream of waste flow to these facilities is essen-

tial. Council Memo, Sept. 16, 2011, at 3. As waste-management experts have recognized,

[w]ithout flow control of some form, governments ability to plan and provide for the most en-

vironmentally sound and economically acceptable solutions will wane, leaving the public vul-

nerable to the vagaries of a private market that does not have a duty to protect the public health

and safety. Peterson & Abramowitz, Municipal Solid Waste Flow Control in the Post-Carbone

World, 22 Fordham Urb. L.J. 361 (1995) (abstract).

B. The Franchise Ordinances Granted By The City In 2007

Beginning in March 2007, the City enacted ordinances granting solid-waste collection

and hauling franchises. At the core of these ordinances, the City granted each franchisee the

non-exclusive right to own, operate and maintain a solid waste collection service within the

City of Dallas. Pls. Br. App. 44. The Dallas City Code, in turn, defines solid waste collection

service as the business of . . . transporting, processing, or disposing of wet or dry solid waste,

Pls. Br. App. 31. Citing these linked provisions (Br. 2-3), Plaintiffs maintain that a franchise

ordinance includes an absolute right, a vital contractual right, a vested right, and an es-

sential franchise right[] to choose the location for disposing the Citys solid waste. Compl.

90; Pls. Br. 1, 2, 7, 8, 12. Plaintiffs are wrong. In terms of explicit language, the franchise

agreement does not grant any absolute right for the franchisee to select that location. On the

contrary, the ordinance does explicitly reserve the Citys right, in three separate places, to regu-

late 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) 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,



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whether presently in force or whether enacted or adopted at any time in the fu-ture, Pls. Br. App. 48 (emphasis added);

(2) the City reserves all rights and powers conferred by federal law, the Texas

Constitution, Texas statutes and decisions, the City Charter, City Code, and Cityordinances which City is allowed to exercise, Pls. Br. App. 77; and

(3) [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 re-

solved in favor of the latter, Pls. Br. App. 79 (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.

C. The Flow Control Ordinance

The City Council passed Ordinance No. 28427 on September 28, 2011, amending Chap-

ters 2 and 18 of the City Code. 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. Specifically, 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 the Northwest (Bachman) transfer station, the McCommas Bluff

landfill, or another transfer station or landfill site owned or operated by the city. Compl. App.

3. The Ordinance, however, does exempt recyclable material by means of an explicit defense to

enforcement: persons are categorically protected from prosecution if the particular waste was

. . . composed solely of recyclable material. Section 18-10(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



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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 environmental-

ly 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. In the short term, the City de-

termined that it could create new jobs, secure the control of the resource stream, generate addi-

tional 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

entirelyby 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. Dallas

City Council Minutes (June 15, 2011), Ex. C at 20. Flow control also would help cover the ex-

pense 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.

In addition to promoting green technologies and facilitating conservationtwo essential

public intereststhe Ordinance also furthers other aspects of the public health and welfare:

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 pro-

grams and services and ensuring the viability of the citys solid waste collectionand disposal utility; (4) facilitate the development of data to ensure sufficient ca-

pacity for disposal and recycling of solid waste; (5) increase recycling of solid

waste; and (6) deter illegal dumping of solid waste.

Compl. Ex. A at 2. The Ordinance will permit the City to achieve these regulatory goals by cen-

tralizing all of the Citys waste at City-operated waste facilities. 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.



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After the Ordinance was passed, on December 15, 2011, and in response to comments by

industry participants, the Citys Director of Sanitation Services promulgated an administrative

directive, pursuant to her authority under Chapter 18 of the Code, to provide additional guidance

regarding the Ordinances operation. See http://www.thefutueofdallaswaste.com/misc/council-

memo-sanitation-services-dept-directive-121611.pdf (Appx. A). In that directive, the Director

issued final definitions for the defense of disposing of 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 non-recyclable material. The Director, in turn,

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)). The directive similarly adopted the state-law definition of recycla-

ble material found in 30 Tex. Admin. Code 328.8(e): glass, leather, metal (fer-

rous/nonferrous metal) and metal appliances, paper/paperboard, plastic, rubber, textile, wood,

yard trimmings, concrete and asphalt pavement (rubble), brick, asphalt shingles, batteries, tires,

andused oil. By doing so, the Director reaffirmed that recycling of commercial and residential

materials will continue once the Ordinance goes into effect.1

ARGUMENT

When a court enjoins the enforcement of a municipal ordinance adopted by a duly elect-

ed city council, the court overrules the decision of the elected representatives of the people and,

1 Under the Courts scheduling order, Defendants will submit supporting affidavits and materi-als on January 3, 2012. These materials will refute misstatements in Plaintiffs Complaint (ECF

No. 1) and Application for Preliminary Injunction (ECF No. 6).



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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).

For that reason, preliminary injunctions are only granted reluctantly and only upon a clear

showing that the injunction before trial is definitely demanded by the Constitution and by the

other strict legal and equitable principles that restrain courts. Ibid. Plaintiffs bear the heavy

burden of convincing the Court that each element of the standard is satisfied. Enter. Intl, Inc. v.

Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 471 (5th Cir. 1985). Because these

Plaintiffs cannot satisfy any element, much less all of them, their application for injunctive relief

should be denied. House the Homeless, Inc. v. Widnall, 94 F.3d 176, 180 (5th Cir. 1996).

I. Plaintiffs Application Should Be Denied Because Plaintiffs Have No Chance

Of Prevailing On The Merits

A. Because The Ordinance Cannot Possibly Impair A Right That Does

Not Exist In The Contract, Plaintiffs Claim Under The Contract

Clause Fails

The Contract Clause restricts a States ability to impair[] the Obligation of Contracts,

U.S. Const. art. I, 10, cl. 1, but its absolutist language has never been understood to mean

what its words might seem to applylest the Clause would depriv[e] the State of its prerog-

ative of self-protection. Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 240 (1978).

Plaintiffs lead claim easily fails for three separate reasons: (1) first and foremost, Plaintiffs as-

sert a claim under the Contract Clause based on a right found nowhere in the contract itselfand

without a right there can be no impairment; (2) Plaintiffs cannot raise a Contract Clause claim

even with an impairment, because the City here is exercising its core regulatory authority to ad-

vance the public health, safety, and welfare; and (3) even if heightened scrutiny applies (which it

plainly does not), the 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



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in a related context, see United Haulers, 550 U.S. at 344. 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.

1. There is no such thing as a Contract Clause claim supporting a right found nowhere 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 contrac-

tual obligation in the first place). Again, this contract is silent on the so-called right that

Plaintiffs say was central to the agreement. 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. The fact that such a term cannot

be found anywhere in the agreementnot in a single section, paragraph, provision, or clause

underscores the obvious: the City did not delegate its fundamental sovereign power to decide, for

a period oftwo decades (i.e., the duration of the agreement), all matters pertaining to waste man-

agement, including where self-interested economic actors locate and deposit waste.

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. The agreement, in fact, even says that the franchisee may only use an authorized

landfill. Compl. 45. Plaintiffs may 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 would be deposited and processed in the municipality, and that

Plaintiffs and other haulers assumed the risk that the location might change.



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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 fran-

chises, 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 obliga-

tion 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 final disposal location at all relevant

timesbefore and after the franchises were granted, and certainly after the Ordinance passed.

2. Even if Plaintiffs could identify a right between the lines of the contract, they still fail

to account for the limited nature of the Contract Clauses sweep. It is well settled that the Con-

tract Clause does not preclude the exercise of police power: it is to be accepted as a common-

place that the Contract Clause does not operate to obliterate the police power of the States. Al-

lied Structural Steel, 438 U.S. at 241. This follows from the guiding principle that one legisla-

ture 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 legislative on matters af-

fecting the public interest. See U.S. Trust Co., 431 U.S. at 23. This alone forecloses Plaintiffs

claim even if they somehow could divine an impaired right in the contract.

3. The Contract Clause does permit judicial oversight where the government is acting

solely in aproprietary capacityand, effectively, seeking to excuse itself from financial obliga-



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tions through the backdoor of legislation,Energy Reserves Grp., Inc. v. Kan. Power & Light Co.,

459 U.S. 400, 412 n.14 (1983)but that is plainly not this case.

In fact, the Supreme Court recently addressed similar flow control ordinances, explain-

ing that [d]isposing of trash has been a traditional government activity for years, United Haul-

ers, 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 beprimarily 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)) (em-

phasis 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.

Plaintiffs assert that [t]he ordinance does not advance any goals that are important and

of legitimate public concern under the police power, Compl. 41 (emphasis added), because

the Ordinances only actual goal is to generate revenue for the City, Pls. Br. 9. But what evi-

dence 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 City, first and foremost,

may identify a legitimate public purpose without any need to ask what the actualmotivation was

behind the ordinance. See, e.g., Whiting v. Univ. of S. Miss., 451 F.3d 339, 349-50 (5th Cir.

2006). The question is whether the government had thepowerto do what it did, not whether it

recited the correct rationale in the legislative record. And the Supreme Court has already deter-

mined that the police power supports flow control as a legitimate and traditional government

function. United Haulers, 550 U.S. at 345 n.7;see also id. at 346-47 (plurality opinion).



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12

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 haul-

ers could take waste to any disposal site, achieving an equal level of enforcement would be much

more costly, if not impossible. Id. at 346-47. 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 334-35.

The City is not required to wait for actual harm before acting in the public interest, and the risk

of private malfeasance alone sufficiently justifies the Ordinance.

In any event, a host of legitimate and powerful public interests were clearly articulated,

developed, and documented throughout the legislative process. In May 2011, the City manage-

ment sent a Memorandum to City Council explaining that the Ordinance was only the first step

toward fully utilizing the citys waste stream as an avenue for expanding [its] maturing green

policies. City Council Briefing Meeting (June 1, 2011), Ex. C at 1. The 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. 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). It is true, of course, that the City has not yet developed all the infrastructure

to support its initiatives. But advanced planning is a virtue, not a vice. Plaintiffs, understanda-

bly, would rather make more money in the interim before the Citys new policies take effect.



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But nothing in the state or federal constitutions require the City to await disaster before legislat-

ing to avoid it.

B. The Ordinance Does Not Violate The Texas Constitutions Due

Course Of Law Provision Because The Ordinance Is A ReasonableAnd 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 was enacted only to ad-

vance the Citys proprietary interests. Pls. Br. 11-13. Plaintiffs are mistaken. Their claim is

nothing more than a substantive-due-process challenge to ordinary social and economic legisla-

tion. See Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (equating the feder-

al and state constitutional standards). It accordingly stands as a forbidden invitation for the fed-

eral 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 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. Ibid.

Plaintiffs response is predicated exclusively on a single caseTexas Power & Light Co.

v. City of Garland, 431 S.W.2d 511 (Tex. 1968)but that decision has nothing to do with this

case. In City of Garland, the city invoked its regulatory powers for the single and conceded pur-

pose 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 fran-

chise. Garland, the Court confirmed, had no right to barter with the police power. Ibid.



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Here, however, Plaintiffs have no protected right under the contractPlaintiffs never had

an absolute entitlement, proprietary or otherwise, to choose the disposal location. 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 this is the wrong forum for that de-

bate. Social and economic policy passes constitutional scrutiny so long as there is any reasona-

bly 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 factfinding and may be based on rational speculation unsup-

ported by evidence or empirical data). Because the Citys approach to municipal waste disposal

was plainly rational, Plaintiffs err in inviting the Court to rigorously scrutinize economic legis-

lation passed under the auspices of the police power. United Haulers, 550 U.S. at 347.

C. The Ordinance Is A Proper Exercise Of The Citys Police Power, Not

Any Kind Of Forbidden Tax

Plaintiffs allege that the Ordinance was not an exercise of [the Citys] police power but

instead an attempt to impose taxes prohibited by the Constitution. Pls. Br. 14 (quoting Low-

enberg v. City of Dallas, 261 S.W.3d 54, 58 (Tex. 2008) (per curiam)). This allegation apparent-

ly supports their claim that the City somehow violated thefederalConstitution by imposing a tax

that violatesstate law. Compl. 54-56. This is incorrect across the board.

Initially, even if the City exceeded its power under state law, it does not follow that the

City violated Plaintiffsfederalrights. State-law violations are just thatviolations ofstate law.

They do not double as standalone claims under the federal Constitution. See, e.g., Collins v. City

of Harker Heights, 503 U.S. 115, 119 (1992) (42 U.S.C. 1983 does not provide a remedy for



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15

abuses [of state power] that do not violate federal law). The Due Process Clause insists that

citizens receive sufficient safeguards before being deprived of protected interests, and that state

actors regulate private behavior in at least a minimally rational fashion. The focus is accordingly

on what the regulation does to the private actorand not whether that regulation is permitted

under state law. See, e.g., Gerhart v. Hayes, 201 F.3d 646, 650 (5th Cir. 2000) ([t]he funda-

mental issue in due process law is not whether state officials violated state law, but whether they

provided the plaintiff with [the federal] constitutional minima).

In any event, Plaintiffs are simply incorrect that the Ordinance is a disguised tax. Plain-

tiffs theory, first and foremost, proves too much. Surely it is not the case that the government

may nevercharge for municipal services. Yet if the fee for waste disposal under the Ordinance

is a tax, then the fee for waste disposal pre-Ordinance was also a tax. It is the same charge for

the same service. No one truly believes that the City is forbidden from imposing a charge for

disposing of wasteand Plaintiffs never even cite the language of any state-law tax prohibi-

tion that would supposedly compel that bizarre result.

The Ordinances regulatory character is both obvious and obviously nota tax: it modifies

the Citys overall plan for locating and disposing of municipal wasteand thereby offers more

convenient, efficient, and environmentally sound means for the City to oversee and finance its

waste-management services. It does not simply impose an additional monetary surcharge for

providing the same service (or no service). Compare, e.g.,Lowenberg, 261 S.W.3d at 56-58. To

be sure, the City will generate additional revenue, but only to correspond with the additional

service it provides. This link[] to the regulatory scheme distinguishes this fee from a tax.

Home Builders Assn of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1011 (5th Cir. 1998); see



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also, e.g.,Ben Oehrleins & Sons & Daughter, Inc. v. Hennepin Cnty., 115 F.3d 1372, 1383 (8th

Cir. 1997) (holding that fees from a flow control ordinance fall outside the Tax Injunction Act).

D. Because The Ordinance Does Not Regulate RecyclingBut Does

Regulate Exactly What The City Is Authorized To Regulate UnderState LawPlaintiffs Claim Under The Sherman Act Fails

Plaintiffs suggest that the City has violated the federal antitrust laws by cornering the

market in recyclable goods. Pls. Br. 14-15 (citing the Sherman Act, 15 U.S.C. 2). This argu-

ment is both factually and legally wrong.

As a factual matter, the Ordinance says nothing about where recyclable materials may be

processedand it fully permits private actors to compete in the market for recyclable materials.

Plaintiffs contrary contention is based on a misreading of the statutory text: the Ordinance has

always exempted solely recyclable materials, and the Director has now confirmed what was

obvious at the outset: far from imposing an impossible standard, the Ordinance always contem-

plated that recyclable material, as the Legislature provided, may be accompanied by incidental

amounts of waste. The Ordinance thus does not regulate recycling at all. Plaintiffs cannot plau-

sibly suggest that the City is monopolizing a recycling market that has been deliberately, and

conspicuously, excluded from the statutes sweep. See United States v. Grinnell Corp., 384 U.S.

563, 571 (1966);Apani Sw., Inc. v. Coca-Cola Enters., Inc., 300 F.3d 620, 623 (5th Cir. 2002).

In any event, as a matter of law, the City is fully protected by the state-action exemption

to the antitrust laws. Surgical Care Ctr. of Hammond, L.C. v. Hosp. Serv. Dist. No. 1 of Tangi-

pahoa Parish, 171 F.3d 231, 234 (5th Cir. 1999) (en banc). Under that exemption, governmental

entities are not subject to antitrust scrutiny when exercising state power in areas specifically del-

egated to municipalities for control. See Cent. Ambul. Serv., Inc. v. City of Dallas, 631 F. Supp.

366, 369 (N.D. Tex. 1986). Here, the City has direct authority under state law (and as a home-

rule city under the Texas Constitution) to regulate solid wasteand it has exercised that authori-



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ty to regulate waste without regulating recycling. The fact that the Citys exemption for recy-

cling has now been defined to match the state-law exemption for recycling eliminates any doubt

that the Citys actions are authorized under state law, and hence immune under the Sherman Act.

E. Plaintiffs Are Incorrect That There Is Any Conflict, Much Less A Di-

rect Conflict, Between State Law And The Ordinance

Plaintiffs contend that state law preempts the Ordinance by vesting certain powers with

the Texas Commission on Environmental Quality and legislating on the subject of recyclables

and solid wasteapparently, according to Plaintiffs, occupying the field. Pls. Br. 18-20. This

contention is wrong in principle and wrong in fact. Under settled law, a city ordinance is not

preempted simply because the State has legislated on the same subject in the past. Indeed, the

state legislature often contemplatesand even relies uponlocal law as a needed counterpart to

state-level legislation. See, e.g., City of Brookside Vill. v. Comeau, 633 S.W.2d 790, 796 (Tex.

1982). Unless no reasonable construction would leav[e] both [laws] in effect, the local law

is not preempted. Leibowitz v. City of Mineola, 660 F. Supp. 2d 775, 788 (E.D. Tex. 2009).

In this case, Plaintiffs have failed to identify any actual conflict with any provision of

state law. They say that the Texas Legislature delegated authority to the Texas Commission on

Environmental Quality (TCEQ), but that delegation hardly preempts the fieldand Plaintiffs

never suggest otherwise. The Citys waste regulation is consistent with the TCEQs waste regu-

lation; without a specific conflict, Plaintiffs claims necessarily fail.

As for Plaintiffs twin efforts to identify such a conflict with the Health and Safety Code:

1. According to Plaintiffs, the Citys regulationsnot on their face, but in operation

effectively serve to regulate the treatment of recyclable materials within City boundaries. And,

according to Plaintiffs, the Citys regulatory authority starts and stops with the ability to regulate

solid waste, notrecyclable materialsbecause that is the only authority authorized by state law.



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Pls. Br. 18-20. The Citys powers, however, are not limited to what is enumeratedat the state

level. Quite the contrary, a home-rule city takes its regulatory authority directly from the Texas

Constitution itself. Unless the Texas Legislature acts to preempt local power on a given issue,

the local government is able to regulate in any field, and any manner, not specificallyprecluded

by positive law. No such specific prohibition exists here.

Yet even if every stitch of Plaintiffs argument were trueand the City were limited to

exercising the positive grants provided by the Texas LegislaturePlaintiffs have still failed to

state a claim. The Citys Ordinance clearly targets waste loads. It is true, to be sure, that the

regulation of waste will also sometimes sweep in goods intermixed with the waste. But the

source of the Citys power is still the ability to dictate where waste is disposed. See Tex. Health

& Safety Code 363.111(a); see also Cent. Ambul. Serv., Inc. v. City of Dallas, 631 F. Supp.

366, 369 (N.D. Tex. 1986) (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 leg-

islature has placed limitations on the citys constitutional power.). And no one suggests that

the City ever targets any truckload that contains no waste at allso the connection between the

Citys powers and the regulated object is established. Plaintiffs cannot exempt themselves from

the Citys regulations simply by including non-waste items together with shipments of waste.

In any event, Plaintiffs entire theory is predicated on a faulty understanding of the Citys

scheme. The Ordinance does not, contrary to Plaintiffs contentions, reach every shipment of

recyclable material with even a particle of solid waste. Instead, the Ordinance exempts any load

containing no more than 10% of solid-waste materialborrowing that definition directly from

state law. And, in fact, had Plaintiffs waited before racing to court for the Director to issue guid-

ance on the subjectas she earlier had promised that she wouldthey would have been well



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aware of the Ordinances true operation. Because City law has adopted the state-law standard

on this score, there is no conceivable conflict of any kind; the contrary position is perplexing.

2. To the extent Plaintiffs object to how state law is defined, they are quibbling with

style, not substance. Pls. Br. 18. The Ordinance defines waste in a way that includes recyclable

materials, but immediately exempts recyclable material from the Ordinances sweep; state law,

by contrast, defines waste in a manner that exempts recyclable material at the outset. See Tex.

Health & Safety Code 361.421(5), 363.006(b). The result is exactly the same under either

formulation: recyclable material is excluded from the scope of the regulation. Preemption re-

quires an actual conflict between state law and local lawnot simply the choice of different

words to accomplish the same objective.2

F. An Ordinary Delegation Asking An Expert Administrator To Define

A Narrow Term In A Complex Statute Is A Wholly ProperDelegation

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. Br. 20-21.

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

2 Plaintiffs err in relying on cases involving Texass unique alcohol regulatory scheme. InDallasMerchants & Concessionaires Assn v. City of Dallas, the Court invalidated an ordinance that

sought to regulate alcohol sales notwithstanding that state law was expressly made exclusive[]

in the area. 852 S.W.2d 489, 491-92 (Tex. 1993). There is no comparable restriction hereand,indeed, Texas law delegates cities the authority to adopt rules for regulating solid waste. Tex.

Health & Safety Code 363.111(a). And the city ordinance in City of Wichita Falls v. Abellwas

incompatible with State law, 566 S.W.2d 336, 338 (Tex. 1978); there is no direct conflict here.



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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 to exercise her expertise to

confirm what materials, in a complex and changing industry, are capable of being recycled. This

narrow delegation, limited to providing additional guidance on the scope of a concrete and ordi-

nary term, is a quintessential example of the lightest form of delegation found everywhere

throughout Texas law and the U.S. Code. And it does not even begin to resemble the handful of

cases relied on by Plaintiffs (Br. 20-21), which involved delegated authority to engage in case-

by-case adjudication under what was literally astandardless 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.

Plaintiffs have failed to articulate any limiting principle that would preserve any delega-

tion of technical subjects to expert administrators. And this case does not bear any of the hall-

marks suggesting it should join the only two statutes that the Supreme Court has found to lack

the requisite intelligible principle. Whitman v. Am. Trucking Assocs., 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).

G. The Ordinances Use Of Intelligible LanguageAs Further Clarified

By Agency DirectiveIs Not At All Vague As Applied Here

Plaintiffs vagueness challenge is unfounded. The factual predicate of their argument

was eliminated the instant the Director promulgated guidance on this subject. In evaluating a



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21

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 di-

rective 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 foras-applied, not facial, attacks.

See, e.g., United States v. Mazurie, 419 U.S. 544, 550 (1975). For the area covered by the Ordi-

nances 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. It is inconceivable that, as applied to the majority of their activities, they

lacked a reasonable understanding of permitted and proscribed conduct. Kolender v. Lawson,

461 U.S. 352, 357 (1983);see also Vill. of Hoffman Estates, 455 U.S. at 498 (economic regula-

tion 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. CompareCity 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. On the contrary, the Director has been asked simply to pro-

vide additional precision, in a generally applicable way, to a term that provides sufficient guid-

ance all on its own. 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,Fernandez v. Limmer, 663 F.2d 619, 636 (5th Cir. 1981), and



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this concrete phraserecyclable materialis hardly beyond the competence of the sophisti-

cated actors involved in this industry.

H. The City Charter Did Not Require Notice Or Hearings Before Adopt-

ing 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 (Br. 22-23), but they are wrong. First, the hearing requirement is activated only where

the Council alters the rates, rules or regulations applicable to such franchise. City of Dallas

Charter, Ch. XIV, 7. Here, of course, the Ordinance did not affect any right found in the fran-

chise agreement at all. The franchise ordinance authorizes a franchisee to use City streets for the

collection of solid waste, see Pls. Br. App. 44; Plaintiffs have no right, under the franchise or

otherwise, to demand the privilege of exercising the absolute discretion to dispose trash at any

location of their choice. Because not a single term in Plaintiffs franchises was altered or im-

paired, there was no need to provide them any process at all under the City Charter.

In addition, the City didprovide notice and a hearing before acting: it held several formal

meetings, with the agenda published in advance, on the merits of flow control. The franchisees

had the same notice that is deemed sufficient for all ordinary 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 subject-matter of the franchise.

II. Because Plaintiffs Purely Economic Harm Is Readily Quantifiable, There Is

No Threat Of Any Irreparable Injury, Much Less A Substantial One

A preliminary injunction is only permitted in the face of imminent and irreversible harm,

see Miss. Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 623 (5th Cir. 1985),

and nothing remotely resembles a qualifying irreparable injury in this case.



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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. PSC, 95 F.3d 1359, 1366-67 (7th Cir. 1996); Sal Tinnerello & Sonsv. Town of Stoning-

ton, 1997 U.S. Dist. LEXIS 21351, at *17 (D. Conn. Aug. 26, 1997). Plaintiffs theory is impos-

sible to square with these cases. And, of course, not asingle case anywhere has held that a vio-

lation of the Contract Clause, as alleged here, constitutesper se irreparable injury.

This result is unsurprising. 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. See Pls.

Br. 23 (citing readily distinguishable First Amendmentcases). In this case, by contrast, Plain-

tiffs 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 alsoPCI Transp. 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. Yet additional costs, expenses, or

outlays (Pls. Br. 23-24) are the prototypical form ofreparable injuries. Enter. Intl, 762 F.2d at

472-73. And it makes no difference that Plaintiffs might be forced, in some unspecified way, to



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24

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.

III. 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 poten-

tial 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. 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 re-assuming the exclusive role, as is

the Citys right, in providing this customary and traditional government function. United

Haulers, 550 U.S. at 344, 345 n.7. If Plaintiffs purported economic harm is entitled to be fac-

tored into the equation, then surely the Citys economic harm is also relevant.

Accordingly, if a preliminary injunction is issued, the City will suffer an immediate, sig-

nificant 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 enjoined, would find itself unable to advance the initia-

tives that mark the future of the Citys most important planning to accommodate the future dis-

posal needs of Dallas residents. 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.



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25

IV. 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 (Br. 25) that the public interest is best served if the judiciary sets aside

the Ordinance. Plaintiffs lose sight of one significant fact. An injunction requires stopping in its

tracks a law duly enacted through the democratic process. It permits the judiciary to dictate the

controlling rule for a highly regulated industry during the pendency of litigation. This is not to

say that injunctive relief is never appropriate; but it does explain the need to identify a compel-

ling case, at each factor, that warrants such an extraordinary interruption of ordinary governmen-

tal 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.

Nor, for that matter, are Plaintiffs correct that the public interest is best served because

the Ordinance would halt recycling. As previously explained, this argument fails in its premise:

the Ordinance does not stop the primary recycling allowed before the Ordinances adoption.

Finally, Plaintiffs argue that an injunction will serve the public good by sparing the City

from spending money in attempting to enforce the Ordinance. The City is in the best position to

assess whether fees associated with defending the Ordinance are warranted. And, of course,

Plaintiffs are not exactly in the best position to assess this particular factor given that theirsuit is

the source of the expense. Plaintiffs are, however, correct in one respect: litigation expense is

sometimes inevitable, but it is not the best use of taxpayer funds. The public interest is best

served by avoiding the need for any additional expense in opposing these meritless claims.

CONCLUSION

For these reasons, the Court should deny the application for a preliminary injunction.



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Respectfully submitted.

THOMAS P. PERKINS, JR., CITY

ATTORNEY OF THE CITY OF

DALLAS, TEXAS

By: /s/ Peter B. Haskel

Peter B. Haskel

Executive Assistant City AttorneyTexas Bar No. 09198900

James B. McGuire

Assistant City AttorneyTexas Bar No. 24055939

Christopher J. Caso

Senior Assistant City AttorneyTexas Bar No. 03969230

City Hall 7BN1500 Marilla Street

Dallas, TX 75201Tel.: (214) 670-3519

Fax: (214) 670-0622

[email protected]@dallascityhall.com

[email protected]

/s/ Robert C. Walters

Robert C. Walters

Texas Bar No. 20820300

Daniel L. GeyserTexas Bar No. 24059816

GIBSON,DUNN &CRUTCHERLLP

2100 McKinney Avenue, Suite 1100

Dallas, TX 75201-6912

Tel.: (214) 698-3100

Fax: (214) 571-2900

[email protected]@gibsondunn.com

Counsel for Defendants

December 20, 2011



33/33

CERTIFICATE OF SERVICE

I hereby certify that on December 20, 2011, an electronic copy of the foregoing opposi-

tion 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/Daniel L. Geyser

Daniel L. Geyser

GIBSON,DUNN &CRUTCHERLLP2100 McKinney Avenue, Suite 1100

Dallas, TX 75201-6912Tel.: (214) 698-3356

Fax: (214) [email protected]


city response to flow control injunction

Documents