Full opinion text
Affirmed in part, vacated in part and remanded by published opinion. Senior Judge HAMILTON wrote the opinion. Judge WIDENER wrote a concurring opinion (specifying that he concurs in all parts of the court’s opinion except Part IV.A, but concurs in the result that Part IV.A obtains). Judge KING wrote an opinion concurring in part and dissenting in part. OPINION HAMILTON, Senior Circuit Judge: In March and April 1999, the Commonwealth of Virginia’s (Virginia) General Assembly, its legislative body, enacted and the Governor of Virginia signed into law five statutory provisions, which, collectively, cap the amount of municipal solid waste (MSW) that may be accepted by landfills located in Virginia and restrict the use of barges and trucks to transport such waste in Virginia. See Va.Code Ann. §§ 10.1-1408.KQ); 10.1-1408.3; 10.1 — 1464.1(A); 10.1-1454.2; 10.1-1454.3 (Michie Supp. 2000). The first statutory provision (the Cap Provision) caps the amount of waste that any landfill located in Virginia may accept. Va.Code Ann. § 10.1-1408.3. The second statutory provision (the Stacking Provision) requires Virginia’s Waste Management Board (the Board) to promulgate regulations governing the transport of MSW by ship, barge, or other vessel, as well as the loading and unloading of such waste. Va.Code Ann. § 10.1-1454.1(A). This statutory provision requires that such regulations, which have yet to be issued, prohibit stacking containerized waste on a barge more than two containers high. Id. The third statutory provision (the Three Rivers’ Ban), which pertains to barges, prohibits “the commercial transport of hazardous or nonhazardous solid waste ... by ship, barge or other vessel upon the navigable waters of the Rappahanock, James and York Rivers, to the fullest extent consistent with limitations posed by the Constitution of the United States.” Va.Code Ann. § 10.1-1454.2. The fourth statutory provision (the Trucking Certification Provision) prohibits landfill operators from accepting MSW from a vehicle with four or more axles “unless the transporter of the waste provides certification, in a form prescribed by the Board, that the waste is free of substances not authorized for acceptance at the facility.” Va.Code Ann. § 10.1-1408.1(Q). Finally, the fifth statutory provision (the Four or More Axle Provision) requires the Board to develop regulations governing the “commercial transport” of MSW by “any tractor truck semitrailer combination with four or more axles.” Va.Code Ann. § 10.1-1454.3(A), (D). Among other things, the Four or More Axle Provision provides that the new regulations require, as a condition of carrying MSW on Virginia roads, the owners of such trucks to make financial assurances that trucks having less than four axles or carrying other cargo need not make. Id. § 10.1-1454.3(A)(2). Following the enactment of these statutory provisions, several Virginia landfill operators and transporters of MSW and one Virginia county (collectively the Plaintiffs) commenced this 42 U.S.C. § 1983 action in the United States District Court for the Eastern District of Virginia against the following individuals, in their official capacities: (1) Virginia’s Governor, James Gilmore; (2) Virginia’s Secretary of Natural Resources, John Paul Woodley; and (3) Virginia’s Director of the Department of Environmental Control, Dennis Treacy. The Plaintiffs’ action challenges the five Virginia statutory provisions on the basis that they are violative of the dormant Commerce, Contract, and Equal Protection Clauses of the United States Constitution. The action seeks declaratory and injunctive relief. In a published decision dated February 2, 2000, the district court held that the five Virginia statutory provisions at issue were-violative of the Constitution’s dormant Commerce Clause, and that the Three Rivers’ Ban and the Stacking Provision were violative of the Constitution’s Supremacy Clause. Waste Management Holdings v. Gilmore (Waste Management Holdings III), 87 F.Supp.2d 536, 545 (E.D.Va.2000). Before this court, on several fronts, the Defendants challenge the propriety of this decision of the district court. For the reasons stated below, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion. I. MSW “generally includes solid waste generated by households, commercial activities, institutions, and non-process waste from industries.” (J.A. 249). The Virginia Department of Environmental Quality (DEQ) reported that as of November 1998, there were seventy active landfills in Virginia accepting MSW. Although the parties disagree over how many of those landfills accept MSW from other states, the record is clear that seven “regional” landfills account for ninety-seven percent of the out-of-state waste deposited in Virginia. Approximately sixty-one “local” landfills accept no out-of-state waste at all. DEQ also reported that for the calendar year ending December 31,1998, New York, Maryland, North Carolina, and Washington, D.C. exported the largest quantities of MSW into Virginia compared to other states or jurisdictions. The regional landfills, which are privately operated and have substantially greater disposal capacity than their local counterparts, have been sited and constructed over the past decade in order to comply with strict state and federal regulations. Pursuant to a “host agreement” with the county in which it is located, each regional landfill pays the host county a fee based upon the volume of waste (excluding the host’s waste) deposited at that location. These agreements also require the regional landfills to perform certain services for their host communities, such as providing free waste disposal and recycling services and/or funding the closing of any local landfills which do not meet state and federal regulations. The construction of these regional landfills has required tens of millions of dollars in private investment, and the landfills face high operation and maintenance costs in addition to the sizea-ble host fees. To meet their revenue needs and remain economically viable, each regional landfill relies heavily on the disposal of MSW generated outside Virginia. In fact, MSW generated outside Virginia comprises seventy-five percent of the MSW accepted at the five regional landfills operated by Waste Management and almost one-hundred percent of the MSW accepted at Brunswick’s regional landfill. Under its host agreements, Waste Management is permitted to dispose of over 2,000 tons of MSW per day at all but one of its regional landfills. Prior to enactment of the statutory provisions at issue, Waste Management expected to exceed that level in 1999. Waste Management further expected that three of its five regional landfills would accept substantially more waste in 1999 than they had in 1998. The Charles City County Landfill, for instance, accepted approximately 2,849 tons of MSW per day in 1999, compared to less than 2,000 tons per day in 1998. Likewise, Brunswick accepted approximately 2,400 tons per day in 1998, and accepted more than 2,800 tons per day in 1999. Before the enactment of the statutory provisions at issue, Brunswick had expected to reach 5,000 tons per day by the end of the year 2000. By contrast, not one of the sixty-one landfills located in Virginia that accept only Virginia-generated MSW has ever accepted more than 2,000 tons per day, and only one or two of those might ever be expected to reach that level in the future. For several decades, New York City has disposed of its residential MSW at the Fresh Kills Landfill in Staten Island. In 1997, New York Governor George Pataki and New York City Mayor Rudolph Giuliani announced that the Fresh Kills Landfill would cease accepting waste in December 2001. The New York City Department of Sanitation, therefore, began to negotiate interim disposal contracts in order to phase out its dependency on the Fresh Kills Landfill. Waste Management has been awarded two of those contracts, and much of the MSW handled under those two contracts has been deposited at its regional landfills in Virginia. In March 1999, it bid on a third contract, which also contemplates the disposal of New York-generated MSW in Virginia. More significantly, Waste Management has bid on, and is a primary contender for, a twenty-year contract to dispose of all or part of 12,000 tons of residential waste per day from Manhattan, Queens, Brooklyn, and the Bronx. New York City’s Department of Sanitation’s Request For Proposal expresses a preference that any waste removed under this contract be transported by barge and/or rail, rather than by truck. Waste Management’s response contemplates sending sixty percent of the New York City residential MSW to Virginia landfills, particularly the Charles City County Landfill. It also contemplates that most of this waste will be containerized and transported by barge along the James River for off-loading at the James River Facility. In addition to the residential MSW covered by existing and pending contracts, Waste Management also removes significant quantities of commercial waste per day from New York City and surrounding communities. Waste Management had transported a substantial portion of this MSW to its regional landfills in Virginia by tractor trailer, but in 1998 began planning to transport much of the waste by barge. In furtherance of this plan, it negotiated a contract with Hale, whereby Hale would lease to Waste Management four barges for five years at a fixed price, with an option to lease an additional two barges. Each barge is capable of carrying 5,000 tons of MSW in specially constructed containers that can be stacked five high. Hale and Waste Management expected that barging would commence in March or April 1999, that Waste Management would transport 2,500 to 3,000 tons of MSW per day from Brooklyn to the James River Facility, and that this waste would then be unloaded and delivered to the Charles City County Landfill for disposal. Toward this end, Waste Management has agreed to purchase 400 American Bureau of Shipping-approved, double steel walled containers at a cost of $10,000 per container. It has also invested more than $5,000,000 in improvements at the James River facility and has guaranteed payment on two cranes for off-loading containers that together are worth more than $5,000,000. Only a small amount of MSW generated inside Virginia is transported to Virginia landfills by water. In June 1998, the DEQ issued a report (the 1998 DEQ Report) indicating that, during the fourth quarter of 1997 alone, Virginia had imported 788,000 tons of MSW. Around the same time, Waste Management’s plans to significantly increase its importation of New York City’s MSW into Virginia began to attract greater notice. In July 1998, Virginia State Senator Bill Bolling, chief sponsor of the statutory provisions at issue in this appeal, wrote to Virginia Attorney General Mark Earley about the possibility of blocking those plans: With the impending closure of the Fresh Kills Landfill in New York, I am concerned that the pressure for additional importation will increase even more in the next few years. If it is legally possible to do so, I would like to introduce legislation during the 1999 session of the General Assembly that would place restrictions on such importations. The legislation I am currently considering could take a number of forms. This legislation could seek to prohibit the importation of out of state waste altogether. In the alternative, I may seek to limit such importations to those landfills currently receiving out of state waste, and to levels reflective of their current importations. However, I do not want to propose such legislation if it would be in violation of existing federal or state law. (J.A. 576). In August 1998, the Congressional Research Service issued a report indicating that Virginia now ranked second only to Pennsylvania as the nation’s largest importer of MSW, taking in 2,800,000 tons in 1997. Shortly thereafter, on September 30, 1998, Senator Bolling announced his intention to introduce legislation aimed at out-of-state waste importation when the General Assembly reconvened in January 1999. In support of his proposals, Senator Bolling highlighted the Commonwealth’s newly acquired ranking among waste-importing states, Waste Management’s recently announced contract to remove 2,400 tons of residential MSW per day from New York City, “[m]ost if not all of [which] will be transported by barge on Virginia’s waterways,” and the impending closure of the Fresh Kills Landfill. (J.A. 601). “NewT York officials have made no secret of their intent to export the 14,000 tons of garbage a day that are currently disposed of in the Fresh Kills Landfill to other states. It appears as though the vast majority of this garbage may be heading to Virginia as well,” Senator Bolling warned. Id. Governor Gilmore also expressed concern about the increased flow of MSW generated outside Virginia into landfills located in Virginia. On September 29, 1998, he announced that he was dispatching his top environmental officials to meet with their counterparts from other states “to ensure that Virginia does not drown in a regional sea of garbage.” (J.A. 597). In November 1998, Governor Gilmore imposed a moratorium on new landfill development and instructed Secretary Woodley to recommend legislation to deal with the problem. Furthermore, in his January 13, 1999 State of the Commonwealth address, Governor Gilmore proposed such legislation. Specifically referring to Waste Management’s intentions, he noted that “[j]ust two days ago, a major company announced plans to import four thousand more tons of New York City trash into Virginia per day.” (J.A. 630). To combat this increase, he announced that he would ask Virginia’s General Assembly to take the following steps: (1) to prohibit the use of barges for transporting MSW on Virginia’s waterways; (2) to impose new permit requirements for landfills located in Virginia; (3) to cap the amount of waste that may be deposited in Virginia landfills; and (4) to increase inspections of waste being hauled by truck or other means. And when New York City Mayor Giuliani suggested that Virginia might have an obligation to accept New York City’s MSW, Governor Gilmore responded that “the home state of Washington, Jefferson, and Madison has no intention o[f] becoming New York’s dumping grounds.” (J.A. 635). Meanwhile, numerous Virginia lawmakers and other state officials announced their support for Senator Bolling and the Governor’s efforts, frequently couching their positions in anti-out-of-state MSW terms. In March and April 1999, Virginia’s General Assembly approved and Governor Gilmore signed into law the five statutory provisions at issue in this case. The present civil action followed. On June 30, 1999, in a published decision, the district court granted the Plaintiffs’ motion for a preliminary injunction against the Defendants’ enforcement of the Cap Provision, the Stacking Provision, and the Three Rivers’ Ban, pending resolution of the Plaintiffs’ claims. Waste Management Holdings, Inc. v. Gilmore (Waste Management I), 64 F.Supp.2d 523 (E.D.Va.1999). In granting the motion, the district court held the Plaintiffs had made the necessary showing of irreparable harm and the balance of harms tipped in their favor. Id. at 537. The district court further held that the Plaintiffs would almost certainly succeed on the merits. Id. According to the district court, “the challenged provisions constitute ‘an integrated and interconnected discriminatory program’ whereby Virginia has ‘attempted to isolate itself from a problem common to [the nation] by erecting a barrier against the movement of interstate trade.’ ” Id. (quoting Environmental Tech. Council v. Sierra Club, 98 F.3d 774, 786 (4th Cir.1996)) (alteration in original). “This,” the district court held, “is precisely what the Commerce Clause forbids.” Waste Management I, 64 F.Supp.2d at 537. The Defendants filed a notice of appeal and a motion in our court for a stay of the preliminary injunction pending appeal. We denied the motion, and the Defendants withdrew their appeal. On August 24, 1999, the district court granted the Plaintiffs’ motion to strike the Defendants’ asserted affirmative defense that because New York City had allegedly taken affirmative steps to discourage the disposal of New York City generated MSW within the borders of the State of New York, the Plaintiffs’ constitutional challenges were barred insofar as they arose from their interest in importing solid waste from New York City. The Defendants next filed a motion to dismiss for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The Defendants sought dismissal of the entirety of the Plaintiffs’ complaint on two bases: (1) that the Plaintiffs lacked standing to challenge the disputed laws because Virginia’s counties lacked authority (i.e., ultra vires) to enter into the landfill host agreements; and (2) that the Plaintiffs’ action is barred by the doctrine of sovereign immunity as provided in the Eleventh Amendment. In addition, the Defendants contended that each of the Plaintiffs’ claims should be dismissed for failure to state a claim on the merits. Finally, the Defendants contended that Charles City County must be dismissed as a plaintiff because it lacked standing to sue its creator. On August 30, 1999, in a published decision, the district court dismissed the Contract Clause claims for failure to state a claim, but denied the remainder of the Defendants’ Rule 12(b)(6) motion. Waste Management Holdings, Inc. v. Gilmore (Waste Management II), 64 F.Supp.2d 537, 548 (E.D.Va.1999). The district court declined to address the issue of whether Charles City County should be dismissed as a plaintiff based on its (the district court’s) belief that each of the other plaintiffs had standing to raise the claims alleged. Id. at 548. Following the close of discovery, the Plaintiffs filed a motion for summary judgment with respect to their dormant Commerce Clause and Supremacy Clause claims. The Defendants filed a cross-motion for partial summary judgment with respect to the constitutionality of the Cap Provision. On February 2, 2000, again in a published decision, the district court granted the Plaintiffs’ motion for summary judgment “in its entirety” and denied the Defendants’ motion for partial summary judgment. Waste Management Holdings III, 87 F.Supp.2d 536, 545 (E.D.Va.2000). Notably, the district court’s memorandum opinion did not separately address the constitutionality of the Trucking Certification or the Four or More Axle Provision under the dormant Commerce Clause or the Three Rivers’ Ban or the Stacking Provision under the Supremacy Clause. For reasons not relevant to the present appeal, the district court later sua sponte dismissed the Plaintiffs’ claims under the Equal Protection Clause. The Defendants noted a timely appeal. II. Under Federal Rule of Civil Procedure 56, a court should grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the district court should review all of the evidence in the record. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000). “In doing so, however, the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Id. Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. That is, the court should give credence to the evidence favoring the nonmovant as well as that “evidence supporting the moving party that is un-contradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.” Id. (quoting 9A Charles Allan Wright & Arthur R. Miller, Federal Practice and Procedure § 2529, p. 299 (2d ed.1995)). We review de novo a district court’s decision to grant a motion for summary judgment. Myers v. Finkle, 950 F.2d 165, 167 (4th Cir.1991). III. The Defendants first argue the doctrine of sovereign immunity, as reflected in the Eleventh Amendment, bars the Plaintiffs’ entire action. We disagree. The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const, amend XI. The Supreme Court has recognized that the doctrine of sovereign immunity under the Eleventh Amendment extends beyond the literal text of the Eleventh Amendment to prevent a state from being sued by one of its own citizens without its consent. Alden v. Maine, 527 U.S. 706, 727-28, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Accordingly, the present suit by the Plaintiffs’ is barred by the Eleventh Amendment unless it falls within the exception recognized in Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which permits certain suits in federal court against state officers. Under the Ex parte Young exception, a suit in federal court to enjoin a state officer from enforcing an unconstitutional statute is not a suit against the state for purposes of the Eleventh Amendment. Id. at 159-60, 28 S.Ct. 441. The theory of Ex parte Young is that because an unconstitutional statute is void, it cannot cloak an official in the state’s sovereign immunity. Although the reasoning of Ex parte Young has never been extended to claims for retrospective relief, federal courts may grant prospective injunctive relief against state officials to prevent ongoing violations of federal law. CSX Transp. Inc. v. Board of Public Works, 138 F.3d 537, 540 (4th Cir.1998). The requirement that the violation of federal law be ongoing is satisfied when a state officer’s enforcement of an allegedly unconstitutional state law is threatened, even if the threat is not yet imminent. Summit Medical Assocs., P.C. v. Pryor, 180 F.3d 1326, 1338-1341 (11th Cir.1999), cert. denied, 529 U.S. 1012, 120 S.Ct. 1287, 146 L.Ed.2d 233 (2000). Over three years ago, the Supreme Court held that the Ex ponte Young doctrine cannot be used to allow a federal court to hear what is the functional equivalent of a quiet-title action against a state. Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997). In the 1997 decision so holding, two of the Justices (Chief Justice Rehnquist and Justice Kennedy) called for a fundamental reconceptualization of Ex parte Young. If given the chance, they would limit the Ex parte Young “exception” to cases in which no state forum was available to decide whether federal law entitled the plaintiff to injunctive relief. Coeur d’Alene, 521 U.S. at 270-280, 117 S.Ct. 2028 (Kennedy, J., joined by Rehnquist, C.J.). But this limitation of Ex parte Young was decisively rejected by the other seven Justices. See 521 U.S. at 287-295,117 S.Ct. 2028 (O’Connor, J., joined by Scalia and Thomas, JJ., concurring); 521 U.S. at 297, 117 S.Ct. 2028 (Souter, J., joined by Stevens, Ginsburg, and Breyer, JJ., dissenting). The Defendants acknowledge that Justice Kennedy and Justice Rehnquist’s limiting view of the Ex parte Young doctrine in Coeur d’Alene “has not yet been adopted by the full Court,” (the Defendants’ Br. at 20). The Defendants nonetheless argue that we should apply it in the case before us to conclude that Ex parte Young does not prevent the Eleventh Amendment from barring the Plaintiffs’ suit. The fallacy of the Defendants’ argument is obvious. Application of the Ex parte Young doctrine has not been limited to cases where no state forum is available to decide whether federal law entitles a plaintiff to injunctive relief. The case before us is precisely the type of case to which the Ex parte Young doctrine applies. See, e.g., CSX Transp. Inc. v. Board of Public Works, 138 F.3d 537, 541 (4th Cir.1998) (“An injunction against the future collection of the illegal taxes, even those that already have been assessed, is prospective, and therefore available under the Ex parte Young doctrine.”). Indeed, if a precedent of the Supreme Court has direct application in a case, yet appears to rest on reasons expressly rejected by a few or even a majority of the Justices in some other line of decisions, “the Court of Appeals should follow the case which directly controls, leaving to[the Supreme] Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). Next, the Defendants contend that even if the Eleventh Amendment does not bar the Plaintiffs’ action altogether, Governor Gilmore should be dismissed as a party because he does not have direct enforcement responsibility with respect to the statutory provisions at issue. Below, both the Plaintiffs and the district court recognized that Governor Gilmore lacks direct enforcement authority with respect to the statutory provisions at issue. However, the Plaintiffs contended and the district court agreed that Governor Gilmore was a proper defendant because he actively and publicly defended the statutory provisions at issue. Waste Management II, 64 F.Supp.2d at 543 n. 6. On appeal, the Plaintiffs argue in favor of keeping Governor Gilmore in the suit on the same basis. We agree with the Defendants that Governor Gilmore should be dismissed as a party. Ex parte Young requires a “special relation” between the state officer sued and the challenged statute to avoid the Eleventh Amendment’s bar. Ex parte Young, 209 U.S. at 157, 28 S.Ct. 441. “General authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law.” Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th Cir.1996) (internal quotation marks omitted). Thus, “[t]he mere fact that a governor is under a general duty to enforce state laws does not make him a proper defendant in every action attacking the constitutionality of a state statute.” Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir.1979). Here, although Governor Gilmore is under a general duty to enforce the laws of Virginia by virtue of his position as the top official of the state’s executive branch, he lacks a specific duty to enforce the challenged statutes. Thus, we vacate the judgment against him and remand with instructions that the district court dismiss him as a defendant in this action. The fact that he has publicly endorsed and defended the challenged statutes does not alter our analysis. The purpose of allowing suit against state officials to enjoin their enforcement of an unconstitutional statute is not aided by enjoining the actions of a state official not directly involved in enforcing the subject statute. IV. The Defendants next dispute the district court’s conclusion that the Plaintiffs possess standing to challenge the statutory provisions at issue. A. According to the Defendants, Virginia counties have no authority to operate or contract for the operation of a landfill for-profit that accepts MSW generated outside Virginia. Accordingly, they contend, the host agreements and the counties’ actions with regard to acceptance of MSW generated outside Virginia are ultra vires. Since the host agreements form the basis for this litigation, the Defendants reason the Plaintiffs lack standing. As the Defendants correctly assert, Virginia law follows “Dillon’s Rule,” which holds that a municipal corporation possesses only those powers that are: (1) expressly granted by Virginia, (2) necessarily or fairly implied in or incidental to the powers expressly granted, or (3) “essential to the declared objects and purposes of the corporation, not simply convenient but indispensable.” Richmond v. Board of Supervisors of Henrico County, 199 Va. 679, 101 S.E.2d 641, 645 (1958) (internal quotation marks omitted). “Any fair, reasonable doubt concerning the existence of the power is resolved by the courts against the corporation and the power is denied.” Id. Here, Virginia Code § 15.2-932 grants “[a]ny locality” authority “to contract with any person, whether profit or nonprofit, for garbage and refuse pickup and disposal service in its locality and to enter into contracts relating to waste disposal facilities which recover energy or materials from garbage, trash and refuse.” Va.Code Ann. § 15.2-932 (Michie 1997) (emphasis added). The Defendants argue that applying Dillon’s Rule to this statute results in the interpretation that Virginia counties lack the power to contract for waste disposal that is not their own waste. We hold the district court properly rejected the Defendants’ ultra vires argument. A plain reading of the language of Virginia Code § 15.2-932, even in light of Dillon’s Rule, grants every Virginia county the authority to enter into the host agreements at issue. In this regard, we rely upon the following language: “[a]ny locality” has the authority “to contract with any person, whether profit or nonprofit, for garbage and refuse pickup and disposal services in its locality ....” Id. (emphasis added). Critically, this language does not limit the term disposal to disposal of intra locality garbage or refuse pickup as the Defendants suggest. B. According to the Defendants, Waste Management and Brunswick lack standing to challenge the Cap Provision, because they did not first apply for an increase in their tonnage allotment under the variance provision. The Defendants further argue that “it has even been conceded that, if the regional landfills had applied for increased tonnage allotments, DEQ staff probably would have granted those requests.” (the Defendants’ Br. at 29). In support of this last argument, the Defendants cite the deposition testimony of Lee Wilson. Lee Wilson is employed as a district manager by USA Waste of Virginia, Inc., which is a subsidiary of Waste Management. In his district manager position, Lee Wilson is responsible for the operations of three landfills located in Virginia and a number of transfer stations. Among other things, his duties include developing and submitting bids to perform waste handling services for customers, providing services to Waste Management’s customers, negotiating contracts with vendors, developing and implementing business plans, and dealing with federal, state, and local regulatory agencies and officials. In deposition, Lee Wilson was asked to give his opinion “after working here in the State of Virginia and knowing the regulators and knowing your landfills, do you think they would grant you an extension?” Lee Wilson answered “[f]rom a regulatory standpoint, yes, from a political standpoint, no.” (J.A. 1371). The Defendants’ argument that Waste Management and Brunswick lack standing to press their constitutional claims because they have not already applied for an increase in their tonnage allotment is without merit. If the cap is allowed to take effect, the maximum daily tonnage that Waste Management and Brunswick may receive at their landfills will be dramatically reduced. The Cap Provision would prevent Waste Management and Brunswick from bidding on contracts while variance applications are pending. The prospect of such harm confers standing. See Bob’s Home Service, Inc. v. Warren County, 755 F.2d 625, 627 (8th Cir.1985) (cap prohibiting expansion of a waste disposal facility until granted a permit by the state presented justiciable controversy because cap denied plaintiffs the right to expand their operations in the future and implied an immediate injury, i.e., a reduction in the value of plaintiffs’ land and business). As for the alleged concession by Waste Management that it would receive a waiver in its tonnage allotment, a fair reading of Lee Wilson’s testimony reveals that he did not make such a concession. At most, Lee Wilson identified competing forces with opposing views on the matter. In short, the Defendants’ contention that Waste Management and Brunswick lack standing to press their constitutional challenge to the Cap Provision is without merit. C. Lastly with respect to standing, the Defendants argue the Plaintiffs lack standing to challenge the Stacking Provision, the Three Rivers’ Ban, and the Four or More Axle Provision because respective saving clauses provide that these provisions will be implemented only to the extent allowed by federal law. Virginia Code Ann. § 10.1-1454.1 (barge regulations shall include stacking limits only “to the extent allowable under federal law”); § 10.1— 1454.2 (Three Rivers’ Ban will be enforced only to the “extent consistent with limitations imposed by the Constitution of the United States”); § 10.1-1454.3 (regulations under Four or More Axle Provision to be enforced only “to the extent allowable under federal law”). We disagree. The saving clauses upon which the Defendants rely do not prevent the Plaintiffs from challenging the Stacking Provision, the Three Rivers’ Ban, or the Four or More Axle Provision, because the language of those clauses is repugnant to the straightforward, limiting language of the respective statutory provisions. Looney v. Commonwealth, 145 Va. 825, 133 S.E. 753, 755 (1926) (“It is well settled that saving clauses which are inconsistent with the body of an act are rejected and disregarded as ineffective and void.”); see also Sutherland on Statutory Construction, § 47:12 (same). V. We now turn to address the merits of the Plaintiffs’ dormant Commerce Clause challenge to the statutory provisions at issue. The Commerce Clause provides that “[t]he Congress shall have Power ... [t]o regulate Commerce ... among the several States_” Art. I, § 8, cl. 3. Supreme Court precedent has long recognized that although phrased as a grant of regulatory power to Congress, the Commerce Clause inherently “denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce.” Oregon Waste Sys. v. Department of Envtl. Quality, 511 U.S. 93, 98, 114 S.Ct. 1345, 128 L.Ed.2d 13 (1994). We apply the following two-tier approach in determining the constitutionality of a statutory provision challenged under the dormant Commerce Clause: The first tier, a virtually per se rule of invalidity, applies where a state law discriminates facially, in its practical effect, or in its purpose. In order for a law to survive such scrutiny, the state must prove that the discriminatory law is demonstrably justified by a valid factor unrelated to economic protectionism, and that there are no nondiseriminatory alternatives adequate to preserve the local interests at stake.... The second tier applies if a statute regulates evenhandedly and only indirectly affects interstate commerce. In that case, the law is valid unless the burdens on commerce are clearly excessive in relation to the putative local benefits. Envtl. Tech. Council v. Sierra Club, 98 F.3d 774, 785 (4th Cir.1996) (internal quotation marks and citations omitted); see also Eastern Kentucky Resources v. Fiscal Court of Magoffin County, 127 F.3d 532, 540 (6th Cir.1997) (“A statute can discriminate against out-of-state interests in three different ways: (a) facially, (b) purposefully, or (c) in practical effect.”). A. Here, the parties are in agreement that the statutory provisions at issue are not facially discriminatory against MSW generated outside Virginia. Thus, we must determine whether the statutory provisions at issue would discriminate against MSW generated outside Virginia in their practical effect or were enacted for the purpose of discriminating against MSW generated outside Virginia. Quite obviously, both inquiries present questions of fact. If the answer to either question is yes, we apply strict scrutiny analysis. B. 1. The Plaintiffs offer the following evidence in support of their contention that the Cap Provision would discriminate against MSW generated outside Virginia in its practical effect. First, the Plaintiffs rely upon a November 1998 report issued by DEQ, reporting that, with respect to the MSW received by the seven large regional landfills in Virginia, approximately ninety-seven percent is MSW generated outside Virginia, while only two of the sixty-three small local landfills in Virginia accepted the remaining approximately three percent. Second, the Plaintiffs rely upon a sworn statement by Lee Wilson that he has personal knowledge that all seven of the large regional landfills in Virginia, except for the Gloucester County landfill, which operates under a local cap of 2,000 tons per day, have disposed of more than 2,000 tons per day of MSW in the past or can reasonably be expected to do so in the future. By contrast, he further stated, none of the approximately sixty-three landfills that receive principally Virginia-generated MSW receive any amount of MSW close to 2,000 tons per day of MSW. The Plaintiffs argue that from this evidence, a reasonable juror could only find that if the Cap Provision is allowed to take effect, it will impose a real and substantial burden on MSW generated outside Virginia while barely, if at all, impacting MSW generated in Virginia. Specifically, the burden is less access to permanent disposal. In response, the Defendants argue that the Plaintiffs’ evidence is legally insufficient because Lee Wilson did not identify a basis for his testimony and provided no reason to believe that he had personal knowledge of this information. Furthermore, the Defendants argue that Lee Wilson’s testimony is contradicted by their evidence that the Southeastern Public Authority Landfill (SPA Landfill), which accepts exclusively Virginia MSW, operates near the cap already and expects to reach that level soon. Moreover, the Defendants argue, the effect of the Cap Provision on the SPA Landfill is demonstrated by the fact that prior to the injunction against enforcement of the Cap Provision, the SPA Landfill applied for an increased tonnage allotment under the Cap Provision. The Plaintiffs argue in response that Lee Wilson had ample basis for his testimony based upon his knowledge and experience in the MSW industry and based upon DEQ’s November 1998 report. With regard to the SPA Landfill, the Plaintiffs note that on December 30, 1998, DEQ reported to Senator Bolling that the SPA Landfill receives 1,540 tons of MSW per day and that when the SPA Landfill applied for an increase in tonnage allotment, it made clear that it expected to exceed the cap only on the “rare” occasions when its waste-to-energy plant is shutdown for repairs. (J.A. 1002). After reviewing the evidence and arguments offered by both sides on this issue, we conclude that a genuine issue of material fact exists regarding whether the Cap Provision discriminates in its practical effect against MSW generated outside Virginia. Thus, the Plaintiffs are not entitled to summary judgment in their favor with respect to this issue. 2. With respect to the Stacking Provision and the Three Rivers’ Ban, the Defendants do not dispute that a far greater amount of MSW generated outside Virginia, as compared to MSW generated inside Virginia, is shipped in specialized containers on barges on Virginia’s waterways for ultimate disposal in landfills located in Virginia. Likewise, the Defendants do not dispute that Hale and Waste Management had serious proposals, prior to the enactment of the statutory provisions at issue, whereby Hale would lease four barges for five years to Waste Management, which Waste Management in turn would use in transporting MSW generated in New York to Virginia on Virginia waterways for disposal in landfills located in Virginia. Finally, the Defendants do not dispute that enforcement of the Stacking Provision would more than double the cost of shipping MSW by barge on Virginia waterways. Nevertheless, the Defendants argue that the Plaintiffs’ evidence is insufficient to establish that the Stacking Provision and the Three Rivers’ Ban discriminates in practical effect against MSW generated out-side Virginia because the Plaintiffs failed to present any evidence establishing that there is not, never has been, and never would be any interest in barging MSW generated inside Virginia. The Defendants offer no citation of authority for this argument and we understand why. The obvious focus of the practical effect inquiry is upon the discernable practical effect that a challenged statutory provision has or would have upon interstate commerce as opposed to intrastate commerce. Logic dictates that for this purpose, the Plaintiffs are only required to show how the Stacking Provision and the Three Rivers’ Ban, if enforced, would negatively impact interstate commerce to a greater degree than intrastate commerce. This they have done, and the Defendants have not created a genuine issue of material fact on the issue. 3. According to the Plaintiffs, the Trucking Certification Provision and the Four or More Axle Provision, if enforced, would have a discriminatory impact upon MSW generated outside Virginia because virtually all MSW generated outside Virginia is delivered to landfills in vehicles with four or more axles, while the majority of MSW generated inside Virginia is delivered to landfills in vehicles with less than four axles. We have reviewed both the evidence offered by the Plaintiffs in support of this assertion and the evidence offered by the Defendants in contest in the light most favorable to the Defendants. It suffices to say that the record reflects a genuine issue of material fact regarding whether the Trucking Certification Provision and the Four or More Axle Provision, if enforced, would discriminate against MSW generated outside Virginia in practical effect. C. We now ask whether, viewing the evidence in the record in the light most favorable to the Defendants, and drawing all reasonable inferences in their favor, reasonable jurors could find that Virginia’s General Assembly enacted the statutory provisions at issue without a discriminatory purpose. Several factors have been recognized as probative of whether a decisionmaking body was motivated by a discriminatory intent, including: (1) evidence of a “consistent pattern” of actions by the deci-sionmaking body disparately impacting members of a particular class of persons; (2) historical background of the decision, which may take into account any history of discrimination by the de-cisionmaking body or the jurisdiction it represents; (3) the specific sequence of events leading up to the particular decision being challenged, including any significant departures from normal procedures; and (4) contemporary statements by decisionmakers on the record or in minutes of their meetings. Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 819 (4th Cir.1995). We conclude the record in this case establishes that no reasonable juror could find that in enacting the statutory provisions at issue Virginia’s General Assembly acted without a discriminatory purpose. Furthermore, the record in this case establishes that no reasonable juror could find that in signing the statutory provisions at issue into law Governor Gilmore acted without a discriminatory purpose. Our conclusions rest upon the historical background of and sequence of events leading up to the General Assembly’s enactment of and Governor Gilmore’s signing into law the statutory provisions at issue. In 1998, the General Assembly and Governor Gilmore learned that, as of 1997, Virginia had become the nation’s second largest importer of MSW, Next came the widely reported news that New York City was planning to close the Fresh Kills landfill and begin exporting more of its MSW. Then came reports that Waste Management was making a $20,000,000 investment in the James River facility. At this point, the wheels of a political movement to curb the flow of MSW generated outside Virginia from entering the borders of Virginia began to turn. The movement was co-spearheaded by Senator Bolling and Governor Gilmore. On September 30, 1998, Senator Bolling issued a press release and formal statement pertaining to his intention to introduce “The Solid Waste Management Act of 1999” for consideration by Virginia’s General Assembly during its 1999 legislative session. Senator Bolling’s statement began by noting Virginia’s then-current status as the second largest importer of MSW in the nation. He further noted that “[m]ost of the out of state waste currently coming to Virginia originates in New York, although significant amounts also come from the District of Columbia and the state of Maryland.” (J.A. 601). Senator Bolling then listed a number of factors that he opined would increase pressure to import dramatically larger amounts of MSW generated outside Virginia. In this regard, Senator Bolling cited an announcement by Waste Management that it had entered into a new contract with New York City to import 2,400 tons of MSW a day into Virginia; New York’s intent to export 14,000 tons of MSW a day upon the closing of the Fresh Kills landfill, the vast majority of which appeared to be heading to Virginia; and the plans of the then-nation’s largest importer of MSW, Pennsylvania, to enact aggressive legislative measures to reduce the amount of MSW generated outside Pennsylvania from being imported into Pennsylvania. Senator Bolling’s statement then stated: “Some may ask why Virginians should be concerned about the large volume of out of state waste we are currently receiving? While there are a number of legitimate concerns, the following are some of the most important.” (J.A. 601). Senator Bolling then proceeded to list the following four reasons: (1) continuing to allow Virginia’s limited landfill space to be consumed by MSW generated outside Virginia may harm the ability of Virginia to properly dispose of its own waste in years to come; (2) because MSW generated outside Virginia is handled by a number of vendors before being transported to Virginia, Virginia’s ability to have a satisfactory level of confidence about the nature of the waste it receives is limited; (3) the large amount of MSW generated outside Virginia that Virginia is currently receiving “has the potential of harming Virginia’s legacy and image”; and (4) the potential for negative environmental impact on Virginia’s land by the “massive landfill operations.” (J.A. 602). Senator Bolling then stated that it was his belief that: ... Virginia must act now to adopt a comprehensive solid waste management policy for the 21st century. Such a policy must assure that Virginia’s solid waste disposal needs are addressed first, that the potential adverse environmental impacts associated with massive landfill operations are controlled, and that the important legacy of Virginia is preserved. (J.A. 602). “Toward this end,” Senator Bolling then stated, “I today announce my intention to introduce The Solid Waste Management Act of 1999 for consideration during the 1999 legislative session.” Id. In the press release accompanying his formal statement, Senator Bolling echoed the protectionist motivation behind his introduction of The Solid Waste Management Act of 1999: “There is tremendous excess capacity in Virginia’s landfills today. If we don’t act now to cap the total amount of waste that can be disposed of in Virginia’s landfills, the amount of waste being brought to Virginia from other states will increase significantly in the next few years. Such caps are the only effective way of limiting the amount of waste that is being imported to Virginia, and preserving our current landfill capacity for future generations of Virginians.” (J.A. 607) (emphasis added). Three months later, on January 16, 1999, Governor Gilmore issued a press release containing the text of a letter he sent to New York City Mayor Rudolph Giuliani the same day. The letter reads: Dear Mayor Giuliani: I am greatly concerned by your recent comments regarding the transport of New York City’s municipal waste to Virginia and the policy you announced in December to increase exports of waste to neighboring states. Like millions of people living from Maine to Florida, I am offended by your suggestion that New York’s substantial cultural achievements, such as they are, obligates Virginia and other states to accept your garbage. Let me assure you that the home state of Washington, Jefferson, and Madison has no intention of becoming New York’s dumping grounds. Over the past two weeks, one company in Virginia has tripled its shipments of New York’s municipal waste to Virginia landfills to approximately 3,000 tons a day. The company also reports that it expects shipments to increase to roughly 2.2 million tons per year by 2002. Already, Virginia ranks as the second largest importer of municipal solid waste, behind only Pennsylvania. This is highly unacceptable. I understand the problem New York City faces. It is one that most cities in the nation share. As an urban area, you do not have landfill facilities within your locality. However, I cannot agree with your conclusion that the only solution is to send your waste to Virginia. The Northeast is large and has many rural areas. I would hope that you could find a solution to your problem within your region. Unlike most rivers, your garbage can flow north as well as south. I agree with you that New York is a great city with some of the finest cultural amenities in the world. But Virginia is a great state, deep with history, culture and tradition. I have a duty to ensure the protection of the natural and historic resources of Virginia and a solution to this growing trash problem is essential to my fulfilling that duty. Very truly yours, James S. Gilmore, III Governor of Virginia (J.A. 633-34) (emphasis added). Just a week after the Governor issued his press release, the Governor announced in another press release that he was proposing, and that Senator Bolling would be the- chief patron of, legislation intended to prevent Virginia from becoming the nation’s, dumping ground. Specifically, the Governor stated: The home state of Washington, Jefferson, and Madison has no intention of becoming the nation’s dumping grounds.... That is why I’ve asked Senator Bolling to sponsor these bills that will increase state regulations on landfills, cap daily landfill deposits, and ban trash barges on Virginia’s waterways. (J.A. 635) (emphasis added). On January 26, 1999, Senator Bolling promptly followed with a memorandum to the members of the Solid Waste Subcommittee of the. Senate Committee on Agriculture, Conservation and Natural Resources, stating: One of the most important issues that will be discussed during this year’s session of the General Assembly is the der bate surrounding Virginia’s solid waste management practices. While many in the General Assembly have been concerned about this issue for some time, the issue has taken on “front page prominence” in the last few weeks, primarily due to the emphasis that has been placed on out of state waste imports. I am writing to provide you with some background information on this issue. ■Earlier this year, the Department of Environmental Quality published their first written report quantifying the amount of waste that was being placed in Virginia’s landfills. Surprisingly, this report indicated that Virginia was receiving 3.2 million tons of garbage from other states, primarily New York. New York accounted for approximately 60% of our total waste imports, and imports .accounted for approximately 30% of our .total landfill deposits. Based on these findings, Virginia was identified as the second largest importer of waste in the nation. Unfortunately, the amount of garbage being imported to Virginia has grown dramatically in the past year. That is primarily due to the impending closure of the Fresh Kills landfill in New York City, and the fact that Waste Management, Inc., who owns most of the large regional landfills in Virginia, has received the contract to handle the relocation of the Fresh Kills waste stream. [T]hese large and increasing waste deposits are prematurely exhausting Virginia’s limited landfill capacity. In fact, the Department of Environmental Quality has estimated that our current landfill capacity could be exhausted 20 years sooner than would otherwise be the case. This means that we may have to site an entire generation of new landfills in Virginia 20 years sooner than we would otherwise have to do so simply because our current landfill space is being filled up by waste from other states. [Tjhese waste deposits could create long term environmental problems for Virginia. ... While we have no choice but to assume this burden for our own waste, we should feel no obligation to assume that burden for the waste of other states. Finally, I would suggest that becoming the nation’s “King of Trash” is not consistent with the image we have tried to promote for Virginia.... How can we possibly promote Virginia as the Silicon Dominion of the 21st century while we stand idly by and allow Virginia to become the largest importer of garbage in the nation. (J.A. 637-38). A few days after Senator Bolling issued the above quoted memorandum, in response to a request by another senator, he issued another memorandum to the Senate’s Solid Waste Subcommittee containing additional information regarding the importation of MSW generated outside Virginia into Virginia’s regional landfills. In this memorandum, Senator Bolling clearly outlined the potential for discriminatory impact upon MSW generated outside Virginia: “The vast majority of the municipal solid waste being received at the seven regional landfills in Virginia comes from other states. While the percentage of out of state waste statewide is approximately 30%, the percentage of out of state waste at the seven regional landfills is 71%.” (J.A. 667). On the same day, Senator Boll-ing personally addressed the Solid Waste Subcommittee and verbally reassured committee members that most local landfills in Virginia accept less than one hundred tons of MSW a day, and thus would not be affected by a 2,000 ton per day cap. The record also contains transcripts of speeches on the floor of the General Assembly by two delegates to the General Assembly and the general reaction of fellow delegates. The transcripts establish the General Assembly’s general antipathy toward MSW generated outside Virginia. First, one delegate to the General Assembly queried: “ ‘Do we want to be known as the capital of garbage?’ ” (J.A. 1007). His query was met with a chorus of nos. He then queried: ‘“Maybe we need a new bumper sticker-instead of Virginia is for lovers, what about Virginia is for garbage? Or how about a special license plate with a dumpster on it.’ ” Id. Again, the record shows a chorus of nos. Finally, Delegate Williams lamented before the General Assembly: “ What a message we are sending, buy a home, live in the great Commonwealth, the number one importer of garbage.’ ” Id. Another delegate to the General Assembly explained: “This [cap provision] is the second bill in the Governor’s package that deals with the waste problem that we are having and I consider it the most important bill in the governor’s package.... [T]his bill is the one that really gets at the doubling of waste the last two or three years at our landfills and the potential to double that waste again in the next two or three years.” Id. (alteration in original). The evidence just outlined shows unmistakably the legislative and gubernatorial opposition to further increases in the volume of MSW generated outside Virginia crossing the borders of Virginia for ultimate placement in Virginia’s seven regional landfills. No reasonable juror could find the statutory provisions at issue had a purpose other than to reduce the flow of MSW generated outside Virginia into Virginia for disposal. Indeed, the very purpose the Defendants proffer in this litigation for the enactment of the statutory provisions at issue-to alleviate or at least reduce health and safety threats to Virginia’s citizens and environment created by the importation of MSW from states with less strict limitations upon the content of MSW than Virginia fully supports our conclusion. This is because an inherent component of the Defendants’ proffered purpose of Virginia’s enactment of the statutory provisions at issue is discrimination against MSW generated outside Virginia. Whether Virginia has a constitutionally valid reason for engaging in such discrimination is the focus of the strict scrutiny inquiry. The Defendants contend the record shows that a genuine issue of material fact exists with respect to whether the statutes at issue were enacted with discriminatory intent or for neutral reasons. In support, the Defendants direct our attention to a post-enactment statement in a sworn declaration by Senator Bolling to the effect that he sponsored the statutory provisions at issue because of his concern over the rapid growth in the volume of MSW being deposited in Virginia landfills “regardless of the source” of that MSW. (J.A. 1228). This statement is not sufficient to create a genuine issue of material fact on the issue of intent, because other. statements by Senator Bolling in the same sworn declaration flatly contradict his “regardless of the source” phrase. Specifically, Senator Bolling admitted that MSW generated outside Virginia presented “increased concerns” on account of “the rapidly increasing volume and our perception that we in the Commonwealth have less control over the content of that waste and our ability to enforce Virginia regulations as to that waste stream.” (J.A. 1229). In enacting the statutory provisions at issue, Senator Bolling further explained: “We were aware that the solid waste regulations of other states were not as stringent as those of the Commonwealth.” Id. These latter quoted statements of Senator Bolling unequivocally show that the volume of MSW generated outside Virginia flowing into Virginia triggered more concern on the part of Virginia’s General Assembly than the volume of MSW generated in Virginia being deposited in landfills located in Virginia. It is true that other portions of Senator Bolling’s sworn declaration stress that Virginia intended the challenged statutes to regulate evenhandedly without regard to the source of the waste; however, the Defendants cannot create a genuine issue of material fact by presenting conflicting sworn statements as they have done with respect to the issue of discriminatory intent. Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir.1984) (“A genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiffs testimony is correct.”). D. We must next consider whether, viewing the evidence in the light most favorable to the Defendants, the Defendants have proffered sufficient evidence for reasonable jurors to find, with respect to each statutory provision at issue, that the provision is demonstrably justified by a valid factor unrelated to economic protectionism, and that no nondiscriminatory alternatives exist that are adequate to preserve the local interests at stake. Environmental Technology Council, 98 F.3d at 785. 1. The Defendants argue that all of the statutory provisions at issue are demonstrably justified because “solid waste streams generated in trash exporting states raise