Prudential Standing and the Dormant Commerce Clause: Why the Zone of Interests Test Should Not Apply to Constitutional Cases

Abstract:     
In a unique decision, the Fifth Circuit in National Solid Waste Management Ass'n v. Pine Belt Regional Solid Waste Management Authority (NSWMA) used the prudential zone of interests standing test to bar the plaintiffs, who met constitutional standing requirements, from filing a facial, per se challenge under the dormant Commerce Clause. Six Mississippi counties and cities that are members of the Pine Belt Regional Solid Waste Management Authority (the Authority) had enacted flow control ordinances that required all solid waste collected in their six jurisdictions be sent to the Authority's facilities, and, thus, prohibited the export of waste to alternative, cheaper in-state or out-of-state sites. Under the dormant Commerce Clause, the Supreme Court had invalidated as facially discriminatory a similar flow control ordinance requiring all local waste be processed by a government-approved processor. This Article will demonstrate that applying the murky zone of interests standing test to the ill-defined dormant Commerce Clause doctrine is counterproductive. In general, courts should require Commerce Clause plaintiffs and most other constitutional litigants to show only that they have constitutional standing without the additional hurdle of meeting the zone of interests standing test. Following the spirit of Clarke v. Securities Industry Ass'n, courts should recognize that intrastate waste carriers harmed by a discriminatory ordinance that discriminates against both intrastate and interstate commerce are usually reliable plaintiffs that may raise dormant Commerce Clause challenges. If it abolishes the zone of interests test for constitutional cases, the Court's Article III standing requirements are sufficiently restrictive to prevent frivolous constitutional suits, and courts could still apply other prudential limitations to standing.

Keywords: Commerce Clause, Article III

JEL Classifications: K32

Accepted Paper Series