Jump to Navigation
Jump to Content

National Solid Wastes Management Ass'n v. Meyer

ELR Citation: 25 ELR 21473
Nos. Nos. 94-4006, 95-1058, 63 F.3d 652/41 ERC 1705/(7th Cir., 08/23/1995)

The court holds that a Wisconsin solid waste flow control law that bars in-state and out-of-state waste generators from disposing of listed recyclable materials in Wisconsin landfills unless the generators reside in a community that has adopted an "effective recycling program" violates the Commerce Clause of the U.S. Constitution. The law requires that all citizens in the effective recycling community must observe the law's recycling provisions, whether or not they actually dispose of waste in Wisconsin. The court first holds that the district court incorrectly reasoned that because the Wisconsin statute was neither facially discriminatory nor discriminatory in practical effect, it did not merit heightened scrutiny. The court holds that the law impermissibly directly regulates interstate commerce. Its practical impact is essentially to control the conduct of those engaged in commerce occurring wholly outside Wisconsin by imposing the requirements of Wisconsin law on numerous waste generators who neither reside nor dispose of their waste in Wisconsin. As a price for access to the Wisconsin market, the law attempts to assume control over the integrity of the product that is moving in interstate commerce. The court notes that the law's practical effect could also be analyzed as discriminating against interstate commerce. The law creates an embargo on waste from a hauler from another state, or a community within that state, unless that political entity has decided to adopt the Wisconsin view of environmental management. Similarly, the Wisconsin disposal site is deprived of the out-of-state waste simply because it comes from a community that does not have an "effective" recycling program, according to Wisconsin. Moreover, the statute places the participant in interstate commerce in a difficult situation with respect to its participation with other states, because if Wisconsin can require interstate haulers to do things Wisconsin's way in order to obtain access to its market, other states can insist on similar or different prerequisites to their markets. The court rejects the state's argument that it has no alternative means of ensuring that recyclables are eliminated from waste entering Wisconsin. The solid waste legislation itself makes clear that there is an available, less discriminatory alternative that could serve the state's purpose just as well as the requirement that the entire community follow the dictates of Wisconsin's plan. The statute makes clear that if the waste is processed by a materials recovery facility that separates the listed recyclables, the waste will conform to Wisconsin's environmental needs. The court holds that given the existence of such a nondiscriminatory alternative that adequately serves Wisconsin's legitimate concerns; the discriminatory legislation cannot be justified.

The court also notes that given the nondiscriminatory and less burdensome methods that Wisconsin could implement, if it were necessary to reach the issue, the Wisconsin scheme would not pass muster under the balancing test of Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Although Wisconsin's need to execute a sound and vigorous environmental policy is substantial, the state has no legitimate interest in requiring that out-of-state generators conform to the Wisconsin plan when those entities are not going to transport waste to Wisconsin. And while Wisconsin has other means to protect its legitimate environmental interests, the burden on the out-of-state generator is substantial. Thus, the court holds that the Wisconsin plan imposes a significant burden on interstate commerce that far outweighs the permissible benefits to the state.

Counsel for Plaintiffs
Andrew Pincus
Mayer, Brown & Platt
190 S. La Salle St., Chicago IL 60603
(312) 782-0600

Counsel for Defendant
Frank Remington, Ass't Attorney General
Attorney General's Office
114 E. State Capitol, Madison WI 53707
(608) 266-1221

Before BAUER, EASTERBROOK, and RIPPLE, Circuit Judges.