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SDDS, Inc. v. South Dakota

ELR Citation: 25 ELR 20967
Nos. No. 94-1688, 47 F.3d 263/40 ERC 1102/(8th Cir., 02/06/1995) Rev'd

The court holds that a South Dakota referendum that voided a state law approving construction and operation of a large-scale municipal solid waste disposal facility violated the Commerce Clause of the U.S. Constitution. According to literature accompanying the referendum, 95 percent of the waste the facility would accept would originate outside South Dakota. The court first notes that the parties do not dispute that the referendum is not racially discriminatory. The court holds, however, that the referendum has a discriminatory purpose. The district court noted that a South Dakota ball to initiative that required legislative approval of large-scale solid waste facilities was purposely drafted to insure that it would not apply to existing or foreseeable future landfills, other than the facility at issue, that dispose of South Dakota waste. The dual administrative and legislative approval the initiative required was specifically designed and intended to hinder the importation of out-of-state waste into South Dakota, and the discriminatory purpose behind the initiative infected the referendum. In addition, the state-sponsored pamphlet that accompanied the referendum exhorted voters to vote against the "out-of-state dump" because "South Dakota is not the nation's dumping grounds," and stated that voting "no" would keep the facility's imported garbage out of South Dakota. South Dakota failed to demonstrate that the referendum furthered the state's legitimate concerns with safety and environmental protection, and the state bombarded the voters with protectionist propaganda that renders the referendum unreliable as an environmental review. Even if the referendum did not have a discriminatory purpose, it is discriminatory in its effect because the garbage market in South Dakota is such that the referendum predominately affects only out-of-staters. Because the referendum has a discriminatory purpose and discriminates in effect against interstate commerce, the strict scrutiny test applies in analyzing the referendum's constitutionality. The referendum fails that test, because the denial of legislative approval does not further the legitimate goal of environmental safety and, therefore, provides no local benefits. And a nondiscriminatory alternative exists because legislative review of the facility may be obtained without a referendum in which the predominant argument is the imported nature of the garbage at the facility.

[Related decisions are published at 23 ELR 21285 and 24 ELR 21318.]

Counsel for Appellant
Edward T. Lyons Jr.
Jones & Keller
1625 Broadway, Ste. 1600, Denver CO 80202
(303) 573-1600

Counsel for Appellees
Roxanne Giedd, Ass't Attorney General
Attorney General's Office
500 E. Capitol, Pierre SD 57501
(605) 773-3215

Before MAGILL, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and BEAM, Circuit Judge.