Opinion
C.A. No. 01C-07-011 HDR
Submitted: July 9, 2001
Decided: July 9, 2001
UPON PLAINTIFF'S MOTION FOR STAY PENDING REVIEW DENIED.
John W. Paradee, Esq. of Prickett, Jones Elliott, Dover, Delaware; David Staats, Esq. of Law Office of David Staats, P.A., Wilmington, Delaware; and Edward C. Duckers, Esq. and Lowell R. Stern, Esq. of Hogan Hartson, L.L.P., Washington, D.C., for Plaintiff.
F. Michael Parkowski, Esq., Jeremy W. Homer, Esq. and Mark F. Dunkle, Esq. of Parkowski Guerke, P.A., Dover, Delaware, and John C. Phillips, Jr., Esq. of Phillips Goldman Spence, P.A., for Defendant.
ORDER
This 9th day of July, 2001, it appears that:
(1) Plaintiff Eastern Shore Environmental, Inc. ("ESE") seeks declaratory relief and damages against the Delaware Solid Waste Authority ("DSWA" or "Authority") arising from its adoption of DSWA Regulation 4.01 by Order dated June 7, 2001. This Order requires in part that certain solid waste and dry waste be disposed at a DSWA Solid Waste Facility. In conjunction with this regulation DSWA would lower its prices and operate new transfer stations. The primary issue in this litigation is whether this regulation violates the dormant Commerce Clause of the U.S. Constitution.
(2) ESE has moved for an Order staying the DSWA Order pending review in this Court. An agency regulation may be stayed by the Court "only if it finds, upon a preliminary hearing, that the issues and facts presented for review are substantial and the stay is required to prevent irreparable harm."
(3) DSWA acknowledges that § 4.01 and the Commerce Clause present a "substantial" issue within the meaning of § 10144. The parties disagree on whether ESE will be irreparably harmed if a stay is denied. ESE concedes that any damages as to particular contracts may be measured, but it argues that injury to good will, prospects for entering a new market, and the risk of being put out of business cannot be measured.
(4) I find ESE's argument that it will suffer irreparable injury if a stay is denied to be unpersuasive. Economic damages for loss of good will, business opportunities, and even the value of a business itself are susceptible of calculation for an award of damages. Irreparable injury simply does not arise when the injury is remedial by an award of damages.
Cantor Fitzgerald L.P. v. Cantor, Del. Ch., 724 A.2d 571, 585 (n. 56) (1998); Maplewood Indus., Inc. v. Department of Natural Resources and Envtl. Control, Del. Ch., 1989 WL 155944, Chandler, V.C. (Dec. 7, 1989) (Mem. Op.).
(5) Turning to the alleged Commerce Clause violation, the Authority has interpreted the regulation to not require dry waste that is hauled from public construction sites by private haulers to be delivered to DSWA facilities. The Authority having so limited the application of the regulation, I am not persuaded there will be irreparable injury under the Commerce Clause if a stay is not granted.
Compare C A Carbone v. Town of Clarkstown, 511 U.S. 383 (1994).
(6) Based upon the record and the arguments presented at the preliminary hearing today, I do not find that a stay is required to prevent irreparable harm.
NOW, THEREFORE, IT IS ORDERED that Plaintiffs Motion for Stay Pending Review is DENIED.