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National Solid Wastes Management Ass'n v. Meyer

Citation: 29 ELR 20459
No. 98-2683, 165 F.3d 1151/(7th Cir., 01/25/1999)

The court holds unconstitutional a state statute that allows out-of-state waste to be disposed of in Wisconsin only if the community where the waste originates adopts an ordinance that incorporates Wisconsin's specifications for recycling. The solitary difference between this law and an earlier law that the Seventh Circuit held unconstitutional is that the new law permits an out-of-state municipality to differentiate between waste bound for Wisconsin, which must be collected and recycled under an ordinance that Wisconsin approves, and waste bound for another state, which may be dealt with under the originating or receiving state's laws. The court first holds that the law unconstitutionally requires municipalities outside Wisconsin's borders to enact ordinances favoring Wisconsin's system and, thus, has extraterritorial application. No state has the authority to tell other polities what laws they must enact or how affairs must be conducted outside its borders. Furthermore, Wisconsin adds insult to injury by declaring that an ordinance is inadequate unless the jurisdiction conducts public education programs to tout the benefits of Wisconsin's approach to recycling. The court next holds that the prospect of conflict invites balkanization. If Wisconsin can tell municipalities in other states what recycling ordinances they must adopt in order to transact interstate commerce, then so can other states. The resulting conflict could stop all traffic at state borders. The court also holds that the law makes interstate commerce in waste more costly than intrastate commerce in that commodity. The U.S. Constitution permits Wisconsin to require imported wastes to be processed in order to curtail the burden on landfills, but the Constitution does not permit Wisconsin to limit interstate traffic to waste originating in jurisdictions that have enacted particular ordinances. Wisconsin's legislative power is limited to what happens in Wisconsin; efforts to interfere with or raise the costs of interstate shipments, or to tell neighboring jurisdictions what laws to enact, are doomed.

[A decision related to this litigation is published at 25 ELR 21473.]

Counsel for Plaintiffs
Ann U. Smith
Michael, Best & Friedrich
Firstar Plaza
One S. Pinckney St., Madison WI 53701
(608) 257-3501

Counsel for Defendant
John S. Greene
Environmental Protection Unit
Wisconsin Department of Justice
P.O. Box 7857, Madison WI 53707
(608) 266-3936

Before Bauer, Easterbrook, and Wood, JJ.