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District of Columbia v. Eastern Trans-Waste of Maryland

District of Columbia Court of Appeals


August 10, 2000

DISTRICT OF COLUMBIA, ET AL., APPELLANTS/CROSS-APPELLEES,
V.
EASTERN TRANS-WASTE OF MARYLAND, INC., ET AL., APPELLEES/CROSS-APPELLANTS.

A.J. Cooper and Herman Schwartz, with whom Camilla C. McKinney and D. Michael Lyles, were on the brief, for appellee in Nos. 96-CV-1690, 96-1760 & 97-CV-627, and for appellants in No. 96-CV-1907.

Before Steadman and Reid, Associate Judges, and Belson, Senior Judge.

The opinion of the court was delivered by: Reid, Associate Judge

Appeals from the Superior Court of the District of Columbia (Hon. Stephen F. Eilperin, Trial Judge)

Argued June 10, 1999

Lutz Alexander Prager, Assistant Deputy Corporation Counsel, with whom Jo Anne Robinson, Principal Deputy Corporation Counsel at the time the brief was filed, Charles L. Reischel, Deputy Corporation Counsel, Appellate Division, and Martin B. White, Assistant Corporation Counsel at the time the brief was filed, were on the brief, for appellant in os. 96-CV-1690, 96-CV-1760 & 97-CV-627, and for appellee in No. 96-CV-1907.

The interlocutory appeals in these consolidated cases *fn1 raise discrete issues relating to complaints pending in the Superior Court of the District of Columbia. The complaints seek declaratory, injunctive and other relief concerning the application and enforcement of the District of Columbia Solid Waste Facility Permit Act, D.C. Code § 6-3401 et seq. (1995 and March 2000 Supp.), and the District of Columbia Illegal Dumping Enforcement Act, § 6-2911 et seq. Appellees and cross-appellants, Eastern Trans-Waste of Maryland, Inc. and the company's individual owners ("ETW"), filed lawsuits against appellants and cross-appellees, the District of Columbia and certain of its agencies ("the District"), after the District took action against ETW for alleged illegal disposal of solid waste.

The District challenges the September 27, 1996, Memorandum and Order of the Honorable Stephen F. Eilperin, determining on summary judgment, that: (1) an order enjoining the District from enforcing the temporary version of the Solid Waste Facility Permit Act should be modified *fn2 to apply to the permanent version of the law "and its accompanying regulations"; *fn3 and (2) the $4.00 per ton solid waste facility charge, set forth in § 6-3457 (b)(1) and imposed on persons operating solid waste facilities, is an unconstitutional burden on interstate commerce in so far as it affects waste originating outside the District. On appeal, the District maintains that: (1) the trial court erred by modifying and extending the July 7, 1995 temporary restraining order since ETW failed to show that it is entitled to preliminary injunctive relief; (2) under the District's anti-injunction statute, D.C. Code § 47-3307 (1997), which prohibits lawsuits to enjoin the assessment or collection of taxes, neither the trial court nor this court has jurisdiction to consider the constitutionality of the $4.00 per ton solid waste facility charge, or the collection fee mandated by § 6-3415 (b), because they are taxes that ETW must pay before it may bring suit against the District; (3) the solid waste facility charge does not violate the commerce clause; and (4) the trial court erred in enjoining the District from enforcing its zoning laws against ETW. ETW contends that the trial court erred in failing to rule that the recycling surcharge and collection fee mandated by § 6-3415 (a) and (b) are unconstitutional. *fn4 Amicus, USA Waste of D.C., Inc., (1) challenges the District's solid waste "tax scheme," and (2) argues that the solid waste facility charge violates the due process and equal protection clauses of the Constitution of the United States. *fn5 A threshold question also exists as to whether this court has jurisdiction to entertain these interlocutory appeals.

We conclude that: (1) this court has jurisdiction to entertain the interlocutory appeals relating to the injunction and the solid waste facility charge; (2) on the peculiar circumstances of this case, § 47-3307 does not bar this court from considering the constitutionality of the solid waste facility charge, which we deem to be a tax rather than a fee under applicable case law; (3) the trial court did not abuse its discretion in modifying and extending the July 7, 1995 temporary restraining order; and (4) nothing in the trial court's July 7, 1995, or September 27, 1996, orders precludes the District from enforcing its zoning laws. Furthermore, we are constrained to remand the trial court's judgment regarding the solid waste facility charge for further proceedings consistent with this opinion. Finally, we agree with the trial court that additional factual development is essential to the resolution of issues regarding the collection fee and the recycling surcharge, and thus, do not determine whether we have jurisdiction over ETW's appeal; nor do we reach the merits of the issues presented by ETW's interlocutory appeal. Accordingly, we affirm the trial court's judgment in part, and remand this case to the trial court for further proceedings consistent with this opinion.

FACTUAL SUMMARY

In late 1993, the Council of the District of Columbia began to consider and enact legislation, *fn6 and the executive branch of the District government promulgated regulations, designed to address problems created by waste collection businesses that had no permit or license to operate waste transfer stations in the District. *fn7 The record on appeal shows that on June 7, 1994, DPW sent a notice to all solid waste and recycling haulers, including ETW, advising them that under the Illegal Dumping Enforcement Act of 1994, "it is illegal for any person to cause or permit any solid waste transported in a vehicle to be disposed in or upon any area unless the site is authorized by the Mayor." On June 14 and 15, 1994, the District took action against ETW, a family owned business that collects solid waste mainly from federal facilities in the District of Columbia, Maryland and Virginia, separates recyclables, and transfers the waste residue to the I-95 Resource Recovery Facility in Lorton, Virginia ("Lorton landfill"). *fn8 The District seized an ETW truck and carried out inspections of ETW's facility, located at 1315 First Street, S.W.

Reacting to the District's efforts to require businesses, such as ETW, to obtain a permit for their solid waste activities, and to pay certain charges and fees, including a solid waste facility charge and a collection fee, ETW filed lawsuits in 1994 and 1995, seeking to enjoin enforcement of the Illegal Dumping Enforcement Act and the Solid Waste Facility Permit Act, as well as their implementing regulations. Further, among other relief, ETW eventually sought an order declaring that the then existing versions of the Acts, as well as any future versions of the Acts were unconstitutional, as applied, under the commerce clause of the Constitution of the United States. On July 7, 1995, the trial court granted ETW's motion for a temporary restraining order, which was modified and extended on September 27, 1996; the September 27 order also partially granted ETW's motion for summary judgment by determining that the $4.00 solid waste facility charge imposed by § 6-3457 (b)(1) is unconstitutional "as applied to solid waste processed in the District for less than 24 hours which originates and is destined for disposal out of the District . . . ." However, the trial court concluded that other issues relating to the Acts, including whether the $4.00 per ton solid waste facility charge was unconstitutional as applied to waste originating in the District, raised factual questions, and thus, were not ripe for decision. Both the District and ETW noticed appeals.

ANALYSIS

The Jurisdictional Issues

The Interlocutory Order

Since these cases are still pending in the trial court, we first determine whether this court has jurisdiction to resolve the issues raised by the District which relate to the trial court's September 27, 1996 memorandum and order: (1) the modification and extension of the July 7, 1995 temporary restraining order; and (2) the partial resolution of the $4.00 per ton solid waste facility charge. The September 27 ruling of the trial court is an interlocutory order, and generally, this court's jurisdiction is limited to reviewing "'final orders and judgments of the Superior Court of the District of Columbia.'" Dyer v. Bergman, 635 A.2d 1285, 1286-87 (D.C. 1993) (quoting D.C. Code § 11-721 (a)(1) (1989)). One exception to this general rule is the certification of a question of law to this court by the trial judge, pursuant to § 11-721 (d) and Super. Ct. Civ. R. 54 (b), before the entire case has been adjudicated. *fn9 Although the record shows that ETW filed motions on November 15, 1996 and December 20, 1996, "request[ing] permission to file appeal pursuant to D.C. Code [§] 11-721 (d)," counsel for ETW advises that permission was denied. The District did not file a Rule 54 (b) motion.

Another route to this court, without a final judgment or a Rule 54 (b) certification or appeal under § 11-721 (d), is an appeal of an order pertaining to an injunction. "Under D.C. Code § 11-721 [(a) (1995)], this court has jurisdiction of appeals . . ., in limited circumstances, from certain interlocutory orders . . . ." Hagner Management Corp. v. Lawson, 534 A.2d 343, 344 (D.C. 1987). *fn10 If the interlocutory order concerns an injunction; or "has 'the practical effect' of granting or refusing an injunction," and "imposes 'a sufficiently serious injury to justify an immediate appeal,'" the order is appealable. Id. at 345 (citing Brandon v. Hines, 439 A.2d 496, 506-07 (D.C. 1981)) ("adopt[ing] a two-part test established by the Supreme Court in Carson v. American Brands, Inc., 450 U.S. 79 (1981), for deciding the appealability of orders under the corresponding federal statute governing interlocutory appeals, 28 U.S.C. § 1292 (a)(1) (1976)") (footnote omitted).

It is clear that the portion of the trial court's September 27, 1995 order which modifies and extends the July 7, 1995 temporary restraining order constitutes a preliminary injunction, and we have jurisdiction to review the modification and extension of that order. *fn11 See Simmons v. Block, 782 F.2d 1545, 1549 (11th Cir. 1986) (construing the federal counterparts to § 11-721 (a) - - 28 U.S.C. § 1292 (a), and Super. Ct. Civ. R. 54 (b) - - Fed. R. Civ. P. 54 (b); and concluding that "the order appealed from is clearly an injunction," and that: "The appealability of an injunction under 28 U.S.C. is not affected by Fed. R. Civ. P. 54 (b)"). A question arises, however, as to whether that part of the September 27, 1995 order which grants summary judgment in favor of ETW as to the $4.00 per ton solid waste facility charge, as applied to waste originating outside the District, is appealable by the District. In a footnote in Barry v. Little, 669 A.2d 115 (D.C. 1995), we stated that:

An order granting partial summary judgment is usually considered a non-appealable interlocutory order in the absence of a certification under Super. Ct. Civ. R. 54 (b). Cohen v. Owens & Co., 464 A.2d 904 (D.C. 1983). However, because injunctive relief was granted pursuant to [the] judgment [in this case], this appeal is properly before us pursuant to D.C. Code § 11-721 (a)(2)(A) (1995 Repl.). Id. at 117 n.5 (citing Gomez v. Turner, 217 U.S. App. D.C. 281, 285, n.5, 672 F.2d 134, 138, n.5 (1982)); Roth v. Board of Regents, 446 F.2d 806, 807 (7th Cir. 1971), (rev'd on other grounds, 408 U.S. 564 (1972); Ortiz v. Eichler, 794 F.2d 889, 891 (3rd Cir. 1986)). *fn12 See also Brown v. Kerr-McGee Chem. Corp., 767 F.2d 1234, 1237 (7th Cir. 1985) (order granting partial summary judgment on one count of complaint held appealable under "28 U.S.C. § 1292 (a)(1) because the summary judgment had the practical effect of denying plaintiffs' request for permanent injunctive relief").

Given these authorities, we conclude that we also have jurisdiction to hear the District's appeal from that part of the interlocutory order which grants partial summary judgment to ETW with respect to the $4.00 per ton solid waste facility charge. However, this conclusion may be affected if we determine that the solid waste facility charge constitutes a tax, an issue which we discuss later in this opinion. *fn13

In its cross-appeal, ETW challenges the trial court's denial of ETW's motion for summary judgment with respect to sections of the Recycling Fee and Illegal Dumping Emergency Amendment Act of 1994 *fn14 which impose a recycling surcharge and a collection fee, § 6-3415 (a) and § 6-3415 (b). *fn15 The trial court appeared to conclude that the applicability of these code sections to ETW might depend upon the outcome of a factual hearing. As the court stated:

While the court thinks that ETW has the better of the argument that the regulatory scheme unconstitutionally forces the interstate commerce hauler to pay a double fee - - namely, the D.C. collection fee and any surcharge imposed by the State in which it ultimately dumps - -the court is of the view that a fuller factual record would help explicate the regulatory scheme so the court could be surer of its views.

We need not address the issues raised by ETW's appeal, that is, the recycling surcharge and the collection fee, because, even assuming, without deciding, that we have jurisdiction over these matters, we agree with Judge Eilperin that further factual development is essential to a determination of the constitutionality of the collection fee and recycling surcharge.

Applicability of the District's Anti-Injunction Act, D.C. Code § 47-3307

We now consider whether we have jurisdiction under D.C. Code § 47-3307 to reach the merits concerning the $4.00 solid waste facility charge. Section 47-3307 provides: "No suit shall be filed to enjoin the assessment or collection by the District of Columbia or any of its officers, agents, or employees of any tax." In Barry, supra, 563 A.2d at 1074, "we h[e]ld that section 47-3307 applies with equal force to bar suits for injunctive and declaratory relief before payment of the challenged assessment." Thus, if the solid waste facility charge constitutes a tax, and ETW has not paid the tax, we may assert jurisdiction and:

equitable relief may be obtained against the collection of [the] tax [only if the following requirements are met]: 1) a finding that "under no circumstances could the Government ultimately prevail," and 2) that "equity jurisdiction otherwise exists," that is, proof of irreparable injury and inadequacy of the legal remedy. Id. at 1075 (quoting Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 6-7 (1962)) (other citations omitted).

To determine whether the solid waste facility charge is a tax, we first examine the relevant statutory provisions; then we apply legal principles governing the distinction between a fee and a tax. Under D.C. Code § 6-3457 (a), the solid waste facility charge is imposed "for operating a solid waste facility in the District." Section 6-3457 (a) provides:

In addition to the solid waste facility application fee for a permit, a person shall pay a solid waste facility charge for operating a solid waste facility in the District. The solid waste facility charge shall be based upon the actual tonnage of solid waste deposited at the solid waste facility, as indicated in the periodic report.

Monies received from the payment of the charge are used for recycling activities in the District, the "develop[ment] of new and additional methods of solid waste management," and for the enforcement of the Solid Waste Permit Act. As sections 6-3457 (d) and (f) specify:

(d) The Mayor may revise the solid waste facility charge as necessary to offset the cost of developing new and additional methods of solid waste management and to fund recycling activities of the District to enforce the provisions of this subchapter.

(f) Subject to the enactment of appropriations, revenues collected from the payment of the solid waste facility charge shall be used to fund recycling activities in accordance with § 6- 3415. *fn16 Not more than 20% of the solid waste facility charge shall be made available to the agency responsible for the enforcement of the requirements of this subchapter.

The District urges us to conclude that the solid waste facility charge is a tax and that because § 47-3307 is jurisdictional, this court has no jurisdiction to decide the issue relating to that charge. *fn17 In its reply brief, ETW contends that the solid waste facility charge is a fee rather than a tax, *fn18 and that since the District did not raise the question of the applicability of § 47-3307 until its reply brief, filed in this court, it should be deemed to have waived the right to invoke the statute. Before considering whether the District has waived the anti-injunction statute, we must ascertain whether the solid waste facility charge is a tax or a fee.

"To determine whether a particular charge is a 'fee' or a 'tax,' the general inquiry is to assess whether the charge is for revenue raising purposes, making it a 'tax,' or for regulatory or punitive purposes, making it a 'fee.'" Valero Terrestrial Corp. v. Caffrey, 205 F.3d 130, 134 (4th Cir. 2000) (citing Collins Holding Corp. v. Jasper County, 123 F.3d 797, 800 (4th Cir. 1997)); see also Cumberland Farms, Inc. v. State of Maine, 116 F.3d 943, 946-47 (1st Cir. 1997). This general inquiry leads to an ambiguous result with respect to the solid waste facility charge because the Solid Waste Facility Permit Act and its legislative history suggest that the charge is designed both to raise revenue and to regulate the solid waste industry. The legislative history refers to "new revenues" resulting from the charge, and the use of the funds generated from the charge to enforce solid waste laws. *fn19 In addition, § 6-3457 (f) mentions "revenues collected from the payment of the solid waste facility charge" as well as use of monies from the charge "to fund recycling activities," and the allocation of "[n]ot more than 20% of the solid waste facility charge . . . for the enforcement of the requirements of this subchapter."

More useful in ascertaining whether the solid waste facility charge is a tax or a fee is a "three-part test that looks to different factors. . . ." Valero, supra, 205 F.3d at 134. Under that three-part test, courts examine: "(1) what entity imposes the charge; (2) what population is subject to the charge; and (3) what purposes are served by the use of the monies obtained by the charge." Id. (citing San Juan Cellular Telephone Co. v. Public Serv. Comm'n, 967 F.2d 683, 685 (1st Cir. 1992)); Bidart Bros. v. California Apple Comm'n, 73 F.3d 925, 931 (9th Cir. 1996); see also American Landfill, Inc. v. Stark/Tuscarawas/Wayne Joint Solid Waste Management Dist., 166 F.3d 835, 837 (6th Cir. 1999) (quoting Bidart, supra, 73 F.3d at 931); Wright v. Riveland, No. 97-36074 (9th Cir. July 11, 2000), 2000 U.S. App. Lexis 15850 at 3. If the legislature imposes the charge, it is generally considered a tax, but if an administrative agency mandates the charge, it is usually considered to be a fee. See National Cable Television Assn., Inc. v. United States, 415 U.S. 336, 340-41 (1974). Therefore, since the solid waste facility charge was enacted by the District's legislature, it would be considered a tax under the first prong of the three-part test followed in Valero Terrestrial Corp., supra.

Turning to the second factor, the immediate population subject to the solid waste facility charge of course would be the operators of open solid waste facilities and the other types of facilities described in the Solid Waste Permit Act. *fn20 However, both the generators of the waste that is collected, and the transporters of the waste to the solid waste facility *fn21 may actually pay part of the cost of the charge through the fees imposed on them, directly or indirectly, by the operator of the solid waste facility. See Valero, supra, 205 F.3d at 134 (West Virginia statute imposing a solid waste assessment fee "ensures that the cost of the charge is passed from the transporter of the waste to the generators of the waste, so to spread the cost to a significantly wider proportion of the population"). Since the solid waste facility charge is imposed upon those in the solid waste industry, the second prong of the three-part test would prompt a conclusion that the charge is a fee. But, "standing alone, the fact that an assessment targets only a narrow class of people is not enough to characterize the assessment as a fee." Hedgepeth v. State of Tennessee, No. 99-5166 (6th Cir. July 12 2000), 2000 U.S. App. Lexis 13002 at 15 (quoting Wright v. McClain, 835 F.2d 143, 144-45 (6th Cir. 1987)). Thus, the third factor in the test, the purposes for or use of the monies collected from the charge, is critical. As the court said in American Landfill, Inc., supra, "for cases where the assessment falls near the middle of the spectrum between a regulatory fee and a classic tax, the predominant factor is the revenue's ultimate use." 166 F.3d at 838 (citing San Juan Cellular Tel. Co., supra, 967 F.2d at 685; Bidart Bros., supra, 73 F.3d at 932). "[I]f the ultimate use of the revenue benefits the general public then the charge will qualify as a 'tax,' while if the benefits are more narrowly circumscribed then the charge will more likely qualify as a 'fee.'" Valero Terrestrial Corp., supra, 205 F.3d at 134 (citing San Juan Cellular Tel. Co., supra, 967 F.2d at 685).

An examination of the District's statutory and regulatory scheme regarding illegal dumping, recycling, and the disposal of solid waste leads us to the conclusion that income from the solid waste facility charge would benefit the general public more than those who handle trash, recyclables and solid waste. In drafting the challenged statutes, the District's legislature was concerned about the impact on the health and safety of District residents of illegal dumping of waste in open areas, and the proliferation of unregulated companies that handle or process waste in the District. See Report on Bill 12-582, The "Solid Waste Facility Permit Act of 1998," supra, at 2; Council of the District of Columbia, Committee on Public Works and the Environment, Report on Bill 10-249, The "Illegal Dumping Enforcement Act of 1993," October 20, 1993, at 2-3; see also 21 DCMR Chapters 7 (Solid Waste Control) and 8 (Solid Waste Container Specifications), February 1998; D.C. Code § 6-2912 (a):

It shall be unlawful for any person to dispose or cause or permit the disposal of solid waste, hazardous waste, or medical waste in or upon any street, lot, park, public place, or any other public or private area, whether or not for commercial purpose, unless the site is authorized for the disposal of solid waste, hazardous waste or medical waste by the Mayor.

To address these concerns, funds generated by the solid waste facility charge would benefit the general public through the development of new and additional methods of solid waste management, recycling activities, and enforcement of laws applicable to the disposal of solid waste. Thus, the funds would "serve[] public purposes benefitting the entire community." American Landfill, supra, 166 F.3d at 839. Moreover, "[t]he revenue's ultimate use as a benefit shared by the public and not just the waste disposal facilities indicates that the [charge] here is a tax." Id. at 839-40; see also Hedgepeth, supra, 2000 U.S. App. Lexis 13002 at 9.

Having concluded that the solid waste facility charge is a tax, and recognizing that ETW has not paid the $4.00 per ton charge, we now consider whether we are barred from addressing the constitutionality of this charge because of § 47-3307, the tax anti-injunction statute. In that regard, two inquiries are necessary: (1) Do the exceptions to the bar against jurisdiction under § 47-3307 apply in this case? (2) Has the District, or could it, effectively waive(d) the anti-injunction statute by not raising it prior to the filing of its responsive and reply brief? The exceptions to the application of § 47-3307 are: "1) a finding that 'under no circumstances could the Government ultimately prevail,' and 2) that 'equity jurisdiction otherwise exists,' that is, proof of irreparable injury and inadequacy of the legal remedy." American Tel. & Tel. Co., 563 A.2d at 1075 (quoting Enochs, supra, 370 U.S. at 6-7 ) (other citations omitted).

At this stage of the litigation, and based on the record before us which reflects a conclusion by the trial judge that certain issues cannot be resolved without additional factual development, we are unable to say that "under no circumstances could the Government ultimately prevail" in the consolidated cases that are before us on interlocutory appeal. Id. Thus, one prong of the two-part test in Williams Packing & Navigation Co., supra, has not been met. We turn, then, to our second inquiry: Has the District, or could it, effectively waive(d) the anti-injunction statute by not raising it prior to the filing of its responsive and reply brief? Relying on our decision in United Jewish Appeal Fed'n of Greater Washington, Inc., supra, the District argues that it did not waive § 47-3307. In that case we held that under § 47-3307, the court had no jurisdiction in a matter involving the collection of real estate taxes, although the District did not raise the anti-injunction statute until a post-judgment motion. Moreover, the District calls our attention to two federal cases construing the federal tax injunction statute in which the courts declared that the statute could not be waived: Folio v. City of Clarksburg, 134 F.3d 1211, 1214 (4th Cir. 1998) ("This statutory provision is a jurisdictional bar that is not subject to waiver, and the federal courts are duty bound to investigate the application of the Tax Injunction Act regardless of whether the parties raise it as an issue"); Cumberland Farms, Inc. v. Tax Assessor, 116 F.3d 943, 945 (1st Cir. 1997) ("Although Maine did not raise this point below, the [Tax Injunction Act's] commands are jurisdictional in nature and are not subject to waiver").

Notwithstanding the federal court's approach to the Federal Tax Injunction Act, this court has never explicitly held that § 47-3307 is not subject to waiver or estoppel. *fn22 In fact, the District previously has asked this court, on more than one occasion, to ignore § 47-3307 and proceed to a decision on the merits. See American Tel. & Tel. Co., supra, 563 A.2d at 1075 n.16. *fn23 Moreover, in this case, we are confronted with a combination of extraordinary and stringent, indeed unique circumstances that was not present in American Tel. & Tel. Co., supra. *fn24 First, and crucial to the result, although the complaints in these consolidated cases were filed originally in 1994, the District did not raise the anti-injunction statute until it lodged its responsive and reply brief in this court in January 1999. Second, the inclusion of the solid waste facility charge as a tax subject to the anti-injunction prohibition is, at best, at the margin of the statute and does not appear to implicate its key concerns. Third, the trial court granted injunctive relief to ETW because of a finding that the company would suffer irreparable harm, that is, as we discuss below, its very existence would be threatened if the District is permitted, (especially at this stage of the litigation before all issues have been resolved), to enforce the payment of the statutory charges or fees under the Solid Waste Permit Act. Fourth, as indicated below, the issue of the constitutionality of the solid waste facility charge cannot be resolved without further proceedings in the trial court; thus, after applying the analytical framework which we set out below, the trial court may again conclude that the charge is unconstitutional under the commerce clause. Fifth, because further proceedings are essential in the trial court, and since there are several other issues which must be addressed in this case following the completion of discovery, including due process questions, ETW may not be afforded a speedy resolution of its complaints. Therefore, unless we determine that the trial court abused its discretion in modifying and extending the July 7, 1995 temporary restraining order against the District, the equitable approach is to conclude, on the extraordinary, stringent, and unique circumstances presented to us in these consolidated interlocutory appeals, that § 47-3307 does not constitute an absolute bar to our jurisdiction.

Review of the Preliminary Injunction Factors

"'The decision to grant or deny preliminary injunctive relief is committed to the sound discretion of the trial court.'" District of Columbia v. Group Ins. Admin., 633 A.2d 2, 21 (D.C. 1993) (quoting Stamenich v. Markovic, 462 A.2d 452, 456 (D.C. 1983)). In reviewing the trial court's order modifying and extending the July 7, 1995 temporary restraining order, we are required to:

(1) examine the trial court's findings and conclusions to see if they are sufficiently supported by the record; [and] (2) assure that the trial court's analysis reflects a resolution of all the issues which necessarily underlie the issuance of an injunction . . . . Id. at 22.

A preliminary injunction may not be granted unless:

the moving party has clearly demonstrated (1) that there is a substantial likelihood [it] will prevail on the merits; (2) that [it] is in danger of suffering irreparable harm during the pendency of the action; (3) that more harm will result to [it] from the denial of the injunction than will result to the defendant from its grant; and, in appropriate cases, (4) that the public interest will not be disserved by the issuance of the requested order. Id. at 21 (quoting Wieck v. Sterenbuch, 350 A.2d 384, 387 (D.C. 1976)) (footnote omitted).

Furthermore,

In determining whether to grant a motion for a preliminary injunction, "the most important inquiry is that concerning irreparable injury . . . because the primary justification for the issuance of a preliminary injunction 'is always to prevent irreparable injury so as to preserve the court's ability to render a meaningful decision on the merits.'" Id. at 22 (quoting Wieck, supra, 350 A.2d at 387-88) (quoting Canal Auth. v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974)).

Irreparable Harm

In her July 7, 1995 order granting ETW's motion for a temporary restraining order, Judge Mitchell-Rankin found that eighty percent of ETW's business comes from government contracts, and that its continued existence was at risk. As the judge stated:

A closure of [ETW's] facility and the attendant inability to service these [government] contracts would result in the termination of these contracts (for the convenience of the government), and the cessation of ETW's business. In addition, ETW has liabilities in excess of one million dollars . . . ; and its inability to generate the referenced revenue would result in the cessation of [ETW's] business and the inability to service its current debt posture.

Judge Mitchell-Rankin also determined that "a violation of constitutional rights constitutes, as in this case through a violation of the Commerce Clause of the Constitution, irreparable harm per se." Furthermore, Judge Eilperin based his finding of irreparable harm on a threat to ETW's continued business existence: "[E]specially considering the District's position that ETW lacks a valid certificate of occupancy, enforcement carries a real threat that ETW would be put out of business or, at a minimum, subjected to significant expense in seeking a permit for its operations." Judge Eilperin emphasized the commerce clause issue, and the District's failure to show, through supplemental responses to ETW's interrogatories, that public health complaints had been lodged against ETW. While "'economic loss does not, in and of itself, constitute irreparable harm,'" such harm will be found if economic "'loss threatens the very existence of the movant's business.'" Id. at 23 (quoting Wisconsin Gas Co. v. FERC, 244 U.S. App. D.C. 349, 354, 758 F.2d 669, 674 (1985)) (other citations omitted). Here, we have a factual finding by two different trial court judges that the record evidence is sufficient to show the threat to ETW's continued existence without an injunction.

Nonetheless, the District argues, in essence, that the Solid Waste Facility Permit Act did not cause irreparable harm to ETW; rather ETW was the victim of a self-inflicted wound because it failed to apply for a permit under the Act, as did other waste transfer stations. In addition, the District states that an adequate remedy at law was available to ETW due to the possibility of refunds and damages should the Solid Waste Facility Act be declared unconstitutional as applied to ETW. Judge Mitchell-Rankin rejected this contention, stating:

The government's argument[,] that ETW's failure to submit a timely application effectively precludes their challenge to the Act and its regulations, and makes impossible a demonstration of irreparable harm[,] fails since it is the enforcement of the Act either in requiring the closure of the facility for failure to comply with the requirements of the Act and its regulations which is the harm which is sought to be avoided.

Since "[o]ur role on review of the trial court's action [granting or denying injunctive relief] is limited," Simpson v. Lee, 499 A.2d 889, 892 (D.C. 1985), and the question of whether the Solid Waste Facility Permit Act threatens the very existence of ETW's business is largely a factual issue, we see no reason to disturb the trial court's conclusion that ETW sustained its burden of showing irreparable harm.

Substantial Likelihood of Success on the Merits

Both Judges Mitchell-Rankin and Eilperin concluded that the Solid Waste Permit Act presented constitutional problems under the commerce clause. Judge Mitchell-Rankin found "a substantial likelihood that a violation of the [c]ommerce [c]lause exist[s] by the enactment and enforcement of the [Solid Waste Facility Permit Act]." In his analysis of the solid waste facility charge, Judge Eilperin stated, in part, that: "Section 8 (b) of the [Solid Waste Permit Act] imposes a $4 per ton fee for solid waste deposited at a solid waste facility." Yet, the Solid Waste Permit Act specifies that the charge is imposed "for operating a solid waste facility in the District." D.C. Code § 6-3457 (a). In reaching his conclusion that the charge is unconstitutional regarding waste originating outside the District, Judge Eilperin also emphasized the solid waste rather than the operations of ETW, citing Champlain Realty v. Brattleboro, 260 U.S. 366, 372 (1922), which focused on "logs" as objects of interstate commerce. Judge Eilperin concluded in relevant part:

Here, the solid waste originates outside the District, is processed in the District for less than 24 hours to facilitate interstate shipment by compacting it and transferring it to long haul trucks and is shipped out of the District . . . . Thus, the solid waste deposited at ETW is already in interstate commerce and not subject to local taxation. The $4 per ton tax of Section 8 (b) impermissibly burdens interstate commerce and is unconstitutional as applied.

Rather than placing emphasis on the solid waste, the analysis of the constitutionality of the solid waste facility charge requires a focus on the statutory language, "for operating a solid waste facility in the District." Thus, the focus is on the operation of the solid waste facility, even though the solid waste facility charge is measured by the number of tons of waste processed annually. As the Supreme Court said in C & A Carbonne, Inc. v. Town of Clarkstown, New York, 511 U.S. 383, 391 (1994) in determining the constitutionality of a flow control ordinance, "the article of commerce is not so much the solid waste itself, but rather the service of processing and disposing of it."

We now turn to the governing law and the applicable legal principles for determining the constitutionality of the solid waste facility charge. Article 1, section 8, clause 3 of the Constitution of the United States gives Congress the power to regulate commerce among the states. The commerce clause also "has long been understood to have a 'negative' [or dormant] aspect that denies the States the power unjustifiably to discriminate against or burden" the free flow of commerce. Oregon Waste Sys., Inc. v. Department of Envtl. Quality, 511 U.S. 93, 98 (1994). Generally, in conducting analyses of the constitutionality of statutes under the commerce clause, the Supreme Court has recognized two possible approaches. The first approach asks, "whether the [statute] discriminates against interstate commerce," C & A Carbonne, Inc., supra, 511 U.S. at 390; see also Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978); Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334, 342 (1992); or "overtly discriminates" against interstate commerce, see U & I Sanitation v. City of Columbus, 205 F.3d 1063, 1067 (8th Cir. 2000) ("[I]f the law in question overtly discriminates against interstate commerce, then we will strike the law unless the state or locality can demonstrate, 'under rigorous scrutiny, that it has no other means to advance a legitimate local interest.'"). The second approach focuses on, "whether the [statute] imposes a burden on interstate commerce that is 'clearly excessive in relation to the putative local benefits'", C & A Carbonne, Inc., 511 U.S. at 390 (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).

Specifically, in cases involving taxes on interstate activities, the Supreme Court has adopted an analytical framework outlined in Complete Auto Transit, Inc. v. Brady, 430 U.S. 276 (1977), a case involving a tax on the privilege of conducting business within the state: "State taxes on interstate activities [are] to be upheld if four specific criteria [are] satisfied: (1) the taxed activity must have a substantial nexus with the taxing jurisdiction, [see Quill Corp. v. North Dakota, 504 U.S. 298, 315 (1992); National Geographic Soc'y v. California Bd. of Equalization, 430 U.S. 551 (1977)]; (2) the tax must be fairly apportioned, [see Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175, 184-191 (1995)]; (3) the taxing legislation must not discriminate against interstate commerce, [see Amerada Hess Corp. v. Director, Div. of Taxation, 490 U.S. 66, 75 (1989)]; and (4) the amount of the tax must be fairly related to the services provided the taxing jurisdiction, [see Goldberg v. Sweet, 488 U.S. 252, 266-67 (1989)]." Homier Distrib. Co., Inc. v. City of Albany, 681 N.E.2d 390, 396 (N.Y. 1997) (discussing Complete Auto Transit, Inc., supra). In the context of the case before us, one related principle should be emphasized: "a local regulation or tax is discriminatory without regard to its underlying purpose when it entails 'differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.'" Id. at 394 (quoting Oregon Waste Sys., Inc., supra, 511 U.S. at 99).

Application of the foregoing approaches and legal principles undoubtedly requires factual development which is not yet available to this court. Furthermore, the trial court has not had an opportunity to consider all facets of the District's statutory and regulatory scheme applicable to solid waste facilities and solid waste disposal. *fn25 Nor has the court itself had an opportunity to determine what are the pertinent underlying facts essential to a resolution of the commerce clause issues. Thus, given the necessity of additional factual development, and recognizing Judge Eilperin's preliminary conclusion that: "ETW has the better of the argument that the regulatory scheme unconstitutionally forces the interstate commerce hauler to pay a double fee - - namely, the D.C. collection fee and any surcharge imposed by the State in which it ultimately dumps. . .," we see no reason to disturb Judge Mitchell-Rankin's and Judge Eilperin's conclusions that the factor of substantial likelihood of success on the merits should be resolved in favor of ETW for purposes of preliminary injunctive relief. We are, however, constrained to remand for further consideration the ultimate partial summary judgment on the solid waste facility charge.

Balance of the Harm and the Public Interest Factors

Judge Mitchell-Rankin declared that the balance of harm factor tilted toward ETW because it could "lose its entire operations if the Act is enforced."

In contrast, she asserted that, "[t]he District would not suffer demonstrable harm if [injunctive] relief . . . is granted, since such an order would have little impact on its day to day operations concerning solid waste transfer and management." With respect to the public interest factor, Judge Mitchell-Rankin decided that "[t]he public interest is served by preventing impermissible burdens on interstate commerce which have the effect of stifling competition in the recycling, waste management and transfer business." On the record before us, we see no evidence indicating that the injunction presents a danger to public health and safety. Consequently, we discern no basis for disturbing the trial court's assessment of the balance of harm and public interest factors.

The District's Zoning Laws

One final issue needs to be addressed regarding the preliminary injunction. The District argues that the trial court enjoined it from enforcing its zoning laws against ETW. However, nothing in the July 7, 1995, or September 27, 1996, orders prevents the District from enforcing its zoning laws. In fact, in its main brief, the District stated in a footnote: "It is not clear that the order was intended to apply to zoning enforcement." Moreover, in its responsive and reply brief, in a footnote, the District cited Super. Ct. Civ. R. 65 which provides, in pertinent part, that: "Every order granting an injunction shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained, and is binding only upon the parties. . . ." Since the District's zoning laws are not mentioned in the July 7 and September 27 orders, they may not be read to preclude the District's enforcement of its zoning laws.

Based upon our analysis, we conclude that the trial court did not abuse its discretion by modifying and extending the July 7, 1995 temporary restraining order.

The Solid Waste Facility Charge, the Collection Fee and the Recycling Surcharge

The foregoing analysis enables us to dispose of the remaining issues, relating to the solid waste facility charge, the collection fee and the recycling surcharge. Since Judge Eilperin emphasized the "solid waste" rather than the statutory language "operating a solid waste facility" in examining the constitutionality of the solid waste facility charge, and thus, has not had an opportunity to resolve the issue using the analytical framework set forth in this opinion, and because factual development may be relevant to his conclusions, we remand the case to the trial court for further proceedings regarding the solid waste facility charge.

Finally, we need not address the issues raised by ETW's appeal, that is, the recycling surcharge and the collection fee, because, even assuming, without deciding, that we have jurisdiction over these matters, we agree with Judge Eilperin that further factual development is essential to a determination of the constitutionality of the collection fee and recycling surcharge.

In summary, for the foregoing reasons, we conclude that: (1) this court has jurisdiction to entertain the interlocutory appeals relating to the injunction and the solid waste facility charge; (2) on the peculiar circumstances of this case, § 47-3307 does not bar this court from considering the constitutionality of the solid waste facility charge, which we deem to be a tax rather than a fee under applicable case law; (3) the trial court did not abuse its discretion in modifying and extending the July 7, 1995 temporary restraining order; and (4) nothing in the trial court's July 7, 1995, or September 27, 1996, orders precludes the District from enforcing its zoning laws. Furthermore, we are constrained to remand the trial court's judgment regarding the solid waste facility charge for further proceedings consistent with this opinion. Finally, we agree with the trial court that additional factual development is essential to the resolution of issues regarding the collection fee and the recycling surcharge, and thus, do not determine whether we have jurisdiction over ETW's appeal; nor do we reach the merits of the issues presented by ETW's interlocutory appeal.

Accordingly, we affirm the trial court's judgment in part, and remand these cases to the trial court for further proceedings consistent with this opinion.


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