Trumbull County Board of Commissioners v. Village of Lordstown

KETHLEDGE, J., delivered the opinion of the court in which BATCHELDER, J., joined. ROGERS, J. (pg. 228), delivered a separate dissenting opinion. OPINION KETHLEDGE, Circuit Judge. Trumbull County has provided sewer service to General Motors’ Lordstown Assembly Plant since 1964. In the mid-2000s, the County borrowed $3.4 million from the U.S. Department of Agriculture to maintain and improve the County’s sewer lines.

That loan obligation triggered the protections of a Kennedy-era statute, 7 U.S.C. § 1926(b), under which sewer providers that owe money to the Department are protected from competition with other sewer providers. The County invokes that statute here, claiming that the Village of Lordstown violated § 1926(b) when the Village built sewer lines that could one day serve GM’s Lordstown Plant. (The County added the City of Warren as a defendant because the City operates and maintains the Village’s lines.) The district court granted summary judgment to the defendants, holding on the merits that the Village’s mere construction of sewer lines did not curtail or limit the County’s service in violation of the statute. We agree with that reasoning but decide the case on standing grounds.

Standing contains three elements, one of which is that “the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent[.]” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks, citations, and footnote omitted). As an initial matter, protection from competition normally is not a legally protected interest. See id. at 578, 112 S.Ct. 2130.

But § 1926(b) does provide temporary protection along those lines. Specifically, the statute provides that, during the term of a loan by the Department of Agriculture to a sewer provider, the provider’s service “shall not be curtailed or limited” by competition with another provider. Here, the County still owes $3.3 million to the Department. At present, therefore, § 1926(b) affords the County a legally protected interest in freedom from competition.

See Hardin v. Kentucky Utilities Co., 390 U.S. 1, 5-6, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968). But that does not mean the County has shown any actual or imminent invasion of that interest. A plaintiff must establish standing “in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at successive stages of the litigation.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130. Here the district court decided the case at the summary-judgment stage, so the County must present evidence creating a genuine issue that the defendants “curtailed or limited” the County’s service, or threaten to do so sometime soon. (We recognize that this issue is nearly identical to the merits issue decided by the district court.

Sometimes in no-injury cases the merits and standing issues look the same. But standing is jurisdictional, and so we begin there.) The relevant evidence is undisputed. The Village built sewer lines to extend sewer (as opposed to only septic) service to the Village’s east side.

The Village also built sewer lines to serve a trailer park adjacent to the GM plant. And the line to the trailer park is large enough to handle all of the sewage from the GM plant. That said, the Village has not provided sewer service to GM or any other customer serviced by the County. In that respect this case is different from Hardin: there, as here, the plaintiff claimed that a federal statute protected it from competition with the defendant; but there the defendant had already begun servicing the plaintiffs customers.

See 390 U.S. at 5, 88 S.Ct. 651. We have nothing of the sort here — no curtailment or limitation of any kind — which means the County cannot show any actual invasion of an interest protected by § 1926(b). Nor is any such invasion imminent. Sewer lines can last for decades, so the mere fact of their construction does not show that the Village intends to compete with the County anytime soon.

And the protections of § 1926(b) are temporary: once the County pays off its federal loan, the Village is free to compete with the County all it likes. Nor does the statute bar the Village from preparing to compete with the County. The core problem with the County’s claim is that § 1926(b) protects the County from competition only for a limited time. And the County lacks evidence that the Village intends to compete with the County during that time, rather than after it.

The County lacks any actual or imminent injury, therefore, to the interests protected by § 1926(b). The sewage flows as it ever did. The district court’s judgment is vacated, and the case remanded with instructions to dismiss for want of jurisdiction.