Plastic Bans, Bottle Bills, and Comprehensive Container Legislation: Packaging Laws Get Mixed Reviews in State Courts

The environmental and economic burdens resulting from the nation's burgeoning use and disposal of packaging materials — principally beer and soft drink cans and bottles — has been the subject of state legislation for more than 25 years. Not suprisingly, the history of packaging legislation has been a stormy one, due in large part to staunch industry opposition in every forum, including the media, legislative chambers, and the courts. The feverish pitch of this conflict continues: three states recently presented the issues to voters in referenda, and three court decisions have passed judgment on such laws in the past few months. These rulings highlight the environmental issues surrounding this type of legislation and demonstrate well the judicial approach typically encountered in such cases.

In Clover Leaf Creamery, Inc. v. State¹ and Juice Tree of Hawaii, Inc. v. Yuen,² courts in Minnesota and Hawaii voided state laws prohibiting the sale of plastic beverage containers. These courts were not the first to conclude that plastic presents no greater risk of environmental harm than other types of packaging material and thus may not constitutionally be subjected to special taxes or other burdensome restrictions. On the other hand, Can Manufacturers Institute v. State³ upheld another Minnesota statute which established a comprehensive mechanism for administrative review of new packaging materials and designs prior to their introduction into state commerce. Even though the law had yet to be fully implemented, the court dismissed almost lightly the assertion of constitutional infirmities in the program, finding its likely benefits far greater than necessary to withstand constitutional challenge.

Packaging Laws: Goals and Results

The prime motivation for the earliest packaging laws was aesthetic — to control roadside litter. Other benefits, however, became apparent as other problems arose. For example, in the 1960s urban communities began to recognize that their growing difficulties with the collection and disposal of solid waste were fast approaching crisis proportions. As landfill sites became filled and ocean dumping increasingly ran afoul of federal law,⁴ controls on the use of packaging, which constitutes more than half of all post-consumer refuse,⁵ became increasingly cost-effective. The energy crisis of the 1970s further shifted the cost-benefit balance toward recyclables because they lead to substantially reduced use of energy.⁶ Packaging laws offer a virtually endless series of additional advantages, including significant reduction in air and water pollution,⁷ increased employment,⁸ reduced personal injuries from broken glass and ring-tops,⁹ consumer savings on beverage purchases,¹⁰ and improvement in the national balance of payments.¹¹

Mandatory beverage container deposit legislation, commonly known as "bottle bills" or "bottle laws," is only a subcategory of the range of packaging laws which have been proposed or enacted. Since Vermont passed its [9 ELR 10194] landmark mandatory deposit law in 1953,¹² legal controls on packaging materials have appeared in a variety of forms. In many cases alternative measures have been adopted as expedient compromises by which legislators could ease themselves out of high pressure disputes over proposed deposit laws. In others, they were intended to supplement existing deposit laws. Generally, however, these alternatives have proven less effective than deposit requirements.

One such requirement is a "litter tax" which has been enacted in several states.¹³ The typical litter tax is imposed on those consumer goods that will eventually enter the solid waste stream, from gum wrappers to limousines. Its proceeds are channeled into a fund which supports various types of anti-litter efforts ranging from educational campaigns to direct removal activities. The principal shortcoming of the litter tax is that it does not diminish the flow of one-way packaging and other solid waste into landfills. It does, however, have the effect of redistributing the costs of cleaning it up from general taxpayers to those who actually consume the packaging. This approach has been criticized for adding needless tax collecting and disbursing mechanisms to the bureaucracy and for inequitably taxing many items which are rarely if ever littered, such as non-packaged food and deposit bottles. California's litter tax was pared down sharply this year,¹⁴ and others are coming under increasing scrutiny.

Another approach that has found fairly wide favor is to prohibit the sale of containers according to their construction. Thus, cans with "ring-tops" or "pull-tabs" are banned in some states.¹⁵ South Dakota has enacted a ban on containers which are not "reusable" or "biodegradable."¹⁶ Others have banned the sale of plastic containers of various types.¹⁷ By far the most comprehensive and promising state packaging law is Minnesota's Package Review Act.¹⁸

Legal Standards

Supporters of packaging laws have faced their greatest hurdles not in the courts but in getting such measures passed in the first place. Proposed laws have been scuttled in their incipiency more often than they have been enacted, usually after high-visibility media and lobbying campaigns. Once enacted, however, these measures have generally fared well in the inevitable legal challenges. Courts have tended to accord the legislatures wide latitude to experiment in this area, provided that the benefits of a given statute are demonstrable and that it regulates evenhandedly. The range of grounds on which packaging laws have been challenged is as wide as the plaintiffs' imaginations and includes the Twenty-First Amendment to the Constitution,¹⁹ due process,²⁰ vagueness,²¹ and limitations on the police power.²² Typically, the central issue is whether the statute in question unduly burdens interstate commerce and thereby runs afoul of the Commerce Clause,²³ although measures aimed at narrowly drawn categories of containers have faced tougher sledding under an equal protection analysis.²⁴

Litigation concerning mandatory deposit legislation has generally turned on an application of the Commerce Clause. The Supreme Court has never reviewed a deposit law or similar modern packaging restriction but it has produced a large number of opinions providing relevant guidance. Although these decisions do not follow a consistent analytical method, they do provide several tests which such statutes must pass to withstand a Commerce Clause attack.

Courts scrutinize carefully state laws which place direct controls on the "instrumentalities" of interstate commerce. Thus, states may not substantially interfere with the channels of commerce in ways appropriate for federal controls, through such measures as limits on the number of railroad cars in a train²⁵ or the length of trucks using interstate highways.²⁶ Packaging laws have withstood this type of inquiry without difficulty²⁷ and should continue to do so.

[9 ELR 10195]

The cases demonstrate perhaps an even greater judicial skepticism toward state laws which amount to "economic protectionism," i.e., those that are intended to create or have the effect of creating economic advantages for state businesses at the expense of out-of-state concerns. Discriminatory effects of this nature are commonly apparent from the face of a statute, such as a Louisiana prohibition against the export of shrimp unless they have been shelled in the state,²⁸ or an Oklahoma ban on the export of natural gas.²⁹ Similarly, in Philadelphia v. New Jersey,³⁰ the Supreme Court voided a statute prohibiting the importation of out-of-state sewage sludge, establishing for the first time that environmental burdens are to be classed with economic burdens for purposes of Commerce Clause review. It is frequently argued³¹ that because deposit laws almost double the cost of transporting beverages they impermissibly disadvantage out-of-state bottlers who ship their goods over longer distances. Such claims are belied by experience,³² however, and the courts in two states have found that, even if such effects can be shown to exist, they do not rise to a level of significance under the Commerce Clause.³³

Once a statute has been found to pass muster under the standards outlined above, reviewing courts invariably turn to the "general rule" of Commerce Clause analysis outlined in Pike v. Bruce Church, Inc.:

Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits …. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.³⁴

This language imparts a five-part test of which the first part encompasses the discrimination question discussed above and the second and third parts follow the traditional "police power" analysis: does the statute address a legitimate legislative objective and is it reasonably designed to achieve that objective? The cases show that the courts have not questioned the legitimacy of the environmental, economic, and energy conserving motives underlying packaging laws.³⁵ It is over the effectiveness of a statute in achieving these purposes that the major evidentiary battles have been fought. Given the compelling empirical studies documenting the success of the Oregon and Vermont deposit laws in reducing litter and municipal waste,³⁶ it is not surprising that no plaintiff has yet managed to convince a court that such laws are ineffective.

The fourth part of the Pike formula mandates a balancing of these benefits against the economic burdens of compliance. The commentators have observed, however, that while in appearance Pike calls for a refined judicial cost-benefit balancing, in practice the courts have performed little more than subjective determinations as to the wisdom evident in the legislative scheme.³⁷ Reasonable judicial doubts as to the efficacy of a given regulatory program are resolved in favor of the program, in keeping with the statement in Pike that the costs of a measure must be "clearly excessive" to justify its invalidation.

In weighing the validity of packaging legislation, it must be noted that the Pike formula for cost-benefit balancing is customarily reserved for economic regulation. The Supreme Court has expressly eschewed a balancing approach when reviewing laws aimed at preventing social ills, such as requirements relating to railroad safety,³⁸ air pollution,³⁹ and the right to privacy from door-to-door salesman.⁴⁰ Indeed, in 1935 the Court upheld another Oregon packaging statute, this one requiring that strawberries and raspberries be packed in special containers, on the ground that since it was not an economic regulation its wisdom should be determined only by a legislature.⁴¹ Again, this reticence seems to be an offshoot of the presumption of validity inherent in the "clearly excessive" standard set out in Pike.

Finally, the fifth Pike test suggests that the availability of less burdensome means of achieving the statute's goals militates against the constitutionality of an otherwise valid statute. The packaging cases have failed to apply this factor, however. On the contrary, the predominant approach is to look to other Supreme Court cases⁴² granting legislatures broad authority to experiment with measures [9 ELR 10196] that may be imperfect or provide only half a loaf, as long as they effectuate generally the legislative intent.⁴³

One other important case rounds out the backdrop of the law in this area. In Society of the Plastics Industry, Inc. v. City of New York⁴⁴ a New York trial court entertained a constitutional attack on a city ordinance placing a tax on the sale of plastic containers. Instead of plodding through the labyrinthine Commerce Clause formula in Pike, the court employed an equal protection analysis. Previous and subsequent plaintiffs have raised equal protection issues when challenging deposit laws, but this line of attack has usually been subordinate to and no less successful than Commerce Clause claims.⁴⁵ In Society of Plastics, however, the disparate treatment of plastics compelled an inquiry into the justification for this separate classification. The court found that the city had not shown that plastic waste produced environmental risks and solid waste management problems not presented by other packaging materials, and that therefore the tax could not be expected to advance the city's interests. The classification was declared irrational and struck down.⁴⁶

Recent Decisions on Plastic Container Bans

Two of the three recent decisions reviewing packaging laws involved statutes which were analytically indistinguishable from that invalidated in Society of Plastics. In 1977 the Hawaii legislature banned the sale of beverages in plastic containers in order to reduce litter in that tourist-oriented state, to reduce the archipelago's solid waste handling difficulties, and to encourage recycling.⁴⁷ A coalition of bottlers challenged the law in state court, arguing that the imposition of sanctions only upon plastic packaging materials was unwarranted and would be ineffective in achieving the legislation's expressed goals.

In a telegraphic and wholly unsatisfying recitation of its "conclusions of law," the trial court in Juice Tree of Hawaii v. Yuen⁴⁸ ruled that the statute denied the packaging producers their rights to due process and equal protection, that the statute was impermissibly vague, and that it unduly impeded interstate commerce in violation of the Commerce Clause. Given the complete absence from the opinion of articulated reasoning, case law references, or other indicia of the court's thinking, its rationale can best be inferred from the parties' stipulation of facts,⁴⁹ which the court adopted.

The stipulated facts tend to show that the ban on plastic beverage containers produced no significant reduction in litter. A roadside litter survey found not a single plastic container among the 1,000 glass bottles, metal cans, and other debris collected. The stipulation suggested that a likely reason for this phenomenon is that plastic is used almost exclusively for large, family-sized containers, whereas individual drink-size containers, which comprised most of the litter collected, are commonly made of glass, metal, and paper. Since a ban on plastics would no doubt lead to increased use of containers made of these other materials, which are smaller and more litter-prone, it was logical to conclude that the statutory prohibition would actually increase the state's litter problems. This result may seem surprising, particularly to the state legislature, but if plastic containers are not in fact littered, the statute may justifiably be considered wrong-headed.

The second major factual issue in Juice Tree was the effects of plastic on solid waste generation and disposal. In a nutshell, the stipulation supports the conclusion that plastic is a desirable component of solid waste because its high energy content facilitates the operations of incinerators and because its chemical properties benefit landfill operations. Therefore, the law presented no environmental, aesthetic, or other benefits which, under the Commerce and Equal Protection Clauses, could justify the economic harms that would be sustained by vendors of plastic containers.⁵⁰ While the opinion in Juice Tree is rightly criticized for its technique, or lack thereof, the result reached appears strongly supportable.

In Clover Leaf Creamery, Inc. v. State,⁵¹ the Minnesota Supreme Court struck down another ban on plastic containers,⁵² this one aimed at an even narrower class of packages: plastic milk containers. In contrast to the Juice Tree opinion, Clover Leaf is focused, reasoned, and factually supported in a manner that adds considerable credence to the result. It affirms a trial court's judgment that was based on a full evidentiary record. The overall strength of the opinion bodes ill for plastic packaging bans elsewhere.

At the outset of the Clover Leaf opinion, the court enunciated the sole question before it: does a ban on plastic milk containers deny the producers of such packages their right to equal protection? It found the statutory objectives of encouraging recycling and improving and reducing the solid waste stream to be unquestionably legitimate. Further, it recognized its duty to accord deference to the legislature's judgment as to the efficacy of the means selected to pursue these goals. Yet, based upon the trial record and its "own independent review of documentary sources,"⁵³ it was unable to discern any beneficial effects of the law.

Experts provided by both sides had established at trial that the principal problem associated with landfill disposal is the discharge of leachates into ground waters. Leaching pollutants are created by the interaction of bacterial decomposition of the waste material with the [9 ELR 10197] naturally percolating rainwater. Another objective of landfill operations is to maintain the stability of the earthen cover, i.e., to prevent uneven settling and cracking which in turn lead to the generation of more leachates. The court found the evidence to establish that in these and a half-dozen other respects plastic packaging is superior to paper, its prime competitor.⁵⁴ While paper containers decompose into methane gas and other noxious pollutants, plastic has no such effects because it is non-biodegradable. Similarly, as paper decomposes it causes settling of the landfill whereas plastic, like glass, maintains its structural stability. The court also noted that plastic milk jugs weigh roughly half that of paper cartons and thus reduce the mass of the solid waste stream. Further, plastic containers can be shredded and recycled, but paper cartons are not recyclable since they are permanently bonded to their plastic coatings. In addition, as a component of incinerated waste, plastic not only releases more energy than paper, it burns cleanly and completely, while paper produces significant amounts of air emissions and leaves solid residues. There were several environmental comparisons with which the state had hoped to make its case, but on these it achieved at best a draw. Each material was found to be equally compressible within the landfill and plastic was determined to require no greater, and perhaps smaller, inputs of energy and other natural resources into the manufacturing process. The overall impression left by the Clover Leaf opinion is that plastic is an environmental godsend.

The state doggedly pressed its case, however, arguing that notwithstanding the merits of the plastic/paper controversy in terms of current environmental effects, the statutory ban was the legislature's chosen means of ensuring the availability of recyclable containers in the future. On this tack the state asserted that at the time of the statute's enactment the dairies in the state were on the verge of making a massive and irrevocable capital investment in equipment for making nonrefillable plastic containers. The intent of the law, it was argued, was to forestall the commitment to this unsound packaging method and later to promote returnable and other beneficial packaging techniques. The court, however, deemed this putative legislative game plan "speculative and illusory."⁵⁵ It distinguished the line of cases authorizing the states to employ a step-by-step process in regulatory measures, reading from those cases a continuing need to demonstrate a rational relation between even the interim statutory goals and effects. In this case it found none.⁵⁶

Minnesota's Package Review Statute

In addition to its now defunct ban on plastic milk containers, Minnesota has a unique, ambitious, and extremely comprehensive packaging law.⁵⁷ The Package Review Act provides for review by the Minnesota Pollution Control Agency (MPCA) of all new package materials and designs. A "grandfather" clause⁵⁸ exempts packages which were in use in 1974, and the Agency may not review packages which differ from grandfathered or approved designs only with respect to color, size, shape, or printing. Any person, including a manufacturer's customers or competitors, may submit a new package to the MPCA for review. If the Agency preliminarily determines that the package will hinder waste disposal operations, deter recycling, or conflict with a range of other environmental policies enumerated in the statute,⁵⁹ it must hold a hearing at which the manufacturer and others may present their views. If the Agency adheres to its initial determination, it may prohibit the sale of the package, subject to the veto of the Minnesota Environmental Quality Board. Such a ban, however, remains in effect only until the end of the next legislative session. If the legislature fails during that period to enact the ban into law, it lapses. In this sense the MPCA's role is limited to that of a "factfinder for the legislature."⁶⁰

A few months after the MPCA issued implementing regulations under the Act, nine packaging manufacturers and five industry associations sought an injunction against its enforcement, alleging that the regulations went beyond the Agency's statutory authority and that the scheme as a whole imposed excessive burdens on interstate commerce. The trial court upheld the regulations and the law but stayed their enforcement pending review of the decision by the state supreme court. On September 7 of this year, that court affirmed the lower court's ruling as to the validity of the statute but accepted the appellants' arguments that the regulations were not consistent with the statute and should be remanded.

As to the validity of the law under the Commerce Clause, the court went straight to the Pike test. In three sentences it breezed through the first three elements of that formula: it found that the statute did not discriminate against out-of-state interests, that it was aimed at legitimate state purposes, and that it was reasonably designed to effectuate those purposes. The court was then faced with a choice. Should it, in accord with the express language of Pike, attempt to balance precisely the benefits and burdens of the law, or should it follow other Supreme Court cases which have declined the balancing approach when judging measures aimed at soical rather than economic objectives? Keeping all bases covered, it upheld the statute under both approaches.

The court first looked simply at whether the Package Review Act furthered the state's legitimate interests. Since those objectives were found "compelling" and the effectiveness of the statute essentially self-evident, it judged the law adequate. It rejected the industry's assertion [9 ELR 10198] that the Act should be overturned because it regulated only packaging rather than all materials found in solid waste. The court was content to allow the state legislature to attack the solid waste problem in progressive stages.

The court next embarked on a nominally more sophisticated balancing of the benefits of the measure against its burdens, but reached the same result. Finding itself unable to quantify the intangible environmental and health advantages likely to accrue from the packaging review scheme, the court went on to note that:

[n]evertheless, it is clear that the benefits deserve great consideration and weight when analyzed under a Commerce Clause challenge, particularly because generation of solid waste is without dispute a critical and growing problem, and the scheme will have a significant impact upon it.⁶¹

With regard to the offsetting costs to the industry, the court did not attempt to estimate with precision those impacts. Indeed, it declared them irrelevant, relying on past Supreme Court decisions holding this kind of inquiry unnecessary.⁶² Thus, the benefits of the regulatory program were given "great consideration" and the costs deemed irrelevant; naturally, the ultimate balance tilted sharply in favor of the validity of the Act.⁶³

Appellants also sought to have the MPCA's implementing regulations invalidated, arguing both that they were more sweeping than permitted under the Act and that they established unconstitutionally vague criteria for determining the acceptability of packages. The court agreed that the regulations had been written to give the Agency broad discretion. But, given that the law was new and unprecedented, the court considered it preferable to trust the MPCA to implement it wisely rather than to straightjacket the Agency with rigid limitations.

The industry appellants managed to secure a small victory with their final claim. They had argued that the regulations, which purported to have the binding effect of law, were inconsistent with language in the Act⁶⁴ authorizing the promulgation of guidelines. In fact, a predecessor to the bill which was finally enacted would have authorized the Agency to promulgate regulations, but this language was deliberately replaced with the final version. Finding this argument persuasive, the court declared that the regulations were to be implemented as guidelines regardless of their designation, i.e., they were not to be construed to have the force and effect of law. Thus, it declined to invalidate them.

Observations

In the wake of the three latest decisions, the writing on the wall emerges vividly. First, it is a waste of legislative energies to enact prohibitions against plastic packaging. It seems indisputable that the material of which a beverage container is made has no bearing on whether it is likely to be littered by a consumer, except for the apparent fact that large containers, commonly made of plastic, are rarely littered. Further, there is no rational basis for preferring glass and metal litter to plastic litter. Once a plastic container has been either littered or disposed of properly, it makes for high-quality garbage or valuable scrap material. The Minnesota Pollution Control Agency, which is one of the ablest of its genre, apparently mounted its best defense of Minnesota's prohibition of plastics and failed resoundingly. The latest decisions establish a trend which now appears unlikely to be reversed.

It might be added that the courts that have decided these cases were apparently never presented with the argument that in the very long term, say 2,000 years, paper and steel containers will have vanished from the environment, whereas future generations will still be caring for plastic and glass monuments to our current profligate habits. But in terms of current environmental and energy realities, plastic containers appear to get the highest marks.

Such arguments, however, miss the point that refillable containers and recyclable packaging, regardless of composition, are environmentally preferable to any type of disposable container. This conclusion is reinforced by federal and state studies showing that a nationwide switch to refillables would lead to stunning energy savings and pollution reduction,⁶⁵ and by the recent rejection by Maine voters of a proposed repeal of that state's mandatory deposit law. Yet on the same day voters in Ohio and Washington defeated proposals to put such laws on the books, demonstrating well the difficulties that lie ahead. If, as has been suggested recently,⁶⁶ there will soon be a technological breakthrough permitting plastic containers to be reused, industry opposition to deposit laws may soften sufficiently to allow a national deposit law to be enacted.

The second lesson provided by the recent cases is that the dismal prospects facing plastic container bans are matched only by the sanguine future for comprehensive, evenhanded enactments such as deposit laws or the Minnesota Package Review Act. This contrast is highlighted by the Minnesota cases: while in Clover Leaf Creamery the court cursorily struck down the plastic container prohibition, in Can Manufacturers Institute it strongly upheld the package review law amid effusive praise for its [9 ELR 10199] obvious benefits. To be sure, Can Manufacturers Institute does not give the MPCA carte blanche to commence outlawing "undesirable" packaging at its whim. Clover Leaf Creamery and its line of cases show that the courts will continue to hold such restrictions up to a rigorous standard of proof. Yet it is equally clear that factually supported and nondiscriminatory administrative decisions under such enactments will be received hospitably by the courts. State legislatures would be wise to take heed.

1. __ Minn. __, __ N.W.2d __, 9 ELR 20739 (Minn. Sept. 7, 1979).

2. __ P.2d __, 9 ELR 20739 (Hawaii Cir. Ct. Sept. 18, 1979).

3. __ Minn. __, __ N.W.2d __, 9 ELR 20744 (Minn. Sept. 7, 1979).

4. Several major cities are experiencing great difficulty attempting to comply with the ocean dumping limitations contained in Title I of the Marine Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. §§ 1401-1421, ELR STAT. & REG. 41821. See Pacific Legal Foundation v. Costle, __ F.2d __, 8 ELR 20731 (9th Cir. 1978) (Los Angeles); Maryland v. Train, 556 F.2d 575, 7 ELR 20443 (4th Cir. 1977) (Philadelphia); Township of Long Beach v. City of New York, 445 F. Supp. 1203, 8 ELR 20453 (D.N.J. 1978) (New York); Pacific Legal Foundation v. Quarles, 440 F. Supp. 316, 7 ELR 20653 (C.D. Cal. 1977) (Los Angeles).

5. ENVIRONMENTAL PROTECTION AGENCY (EPA), RESOURCE RECOVERY AND WASTE REDUCTION: FOURTH REPORT TO THE CONGRESS 15 (table 2), 17 (table 3) (1977) (hereinafter EPA REPORT). This figure excludes food waste.

6. The EPA has estimated that enactment of a nationwide bottle deposit law would yield energy savings equivalent to 42 million barrels of oil per year. EPA REPORT, supra note 5, at 70.

7. A federal task force has concluded that enactment of a nationwide bottle deposit law would reduce emissions of air pollutants by approximately 500,000 tons per year in 1985 and trim waterborne discharges by roughly 75,000 tons. RESOURCE CONSERVATION COMMITTEE, COMMITTEE FINDINGS AND STAFF PAPERS ON NATIONAL BEVERAGE CONTAINER DEPOSITS 34, 42 (1978). See also Hearing before the Subcommittee on Transp. and Commerce of the House Committee on Interstate and Foreign Commerce, 95th Cong., 1st Sess. 30 (1978) (statement of EPA Deputy Ass't Administrator Stefan Plehn).

8. A national bottle deposit law would lead to the creation of 82,000 jobs. See, e.g., EPA REPORT, supra note 5, at 71.

9. See American Can Co. v. Oregon Liquor Control Commission, 517 P.2d 691, 697, 4 ELR 20218, 20222-23 (Ore. App. 1974).

10. The net consumer savings resulting from a national bottle deposit law have been estimated at $2.5 billion annually. EPA REPORT, supra note 5, at 74.

11. As indicated at note 6, supra, a national container deposit law would significantly reduce national energy consumption and thereby affect oil imports. Moreover, the production of glass and the smelting of aluminum for containers require large amounts of raw materials, principally iron ore and bauxite, respectively. As the General Accounting Office has concluded:

U.S. bauxite and iron ore supply depends heavily on imports. If the potential reductions in raw materials [resulting from a bottle deposit law] were made mostly from imports there would be important balance of payments trade account benefits.

GENERAL ACCOUNTING OFFICE, POTENTIAL EFFECTS OF A NATIONAL MANDATORY DEPOSIT ON BEVERAGE CONTAINERS 22 (1977).

12. 1953 Vermont Acts, No. 33. Though the original law expired by its own terms, Vermont has since enacted a similar measure. VT. STAT. ANN. tit. 10, §§ 1521-1527. Six other states now have statutory bottle deposit requirements: CONN. GEN. STAT. ANN. §§ 22a-77-22a-89 (West); DEL. CODE ANN. tit. 7, ch. 60; IOWA CODE ANN. §§455C.1-455C.12; ME. REV. STAT. ANN. tit. 32, §§ 1861-1869 (a copy of this statute is available from ELR, 4 pp. $0.50 ELR Order No. L-1005); MICH. COMP. LAWS § 18.1206; and ORE. REV. STAT. §§ 459.810-459.890, ELR STAT. & REG. 43007.

13. See, e.g., CAL. REV. & TAX. CODE § 42000 et seq. (West), as amended, 1979 CAL. STAT. ch. 3; KY. REV. STAT. § 224.955 (.03 percent tax on sales price); Washington Model Litter Control Act, WASH. REV. CODE ANN. §§ 70.93.010-70.93.910 (.015 percent tax on sales price).

14. 1979 CAL. STAT. ch. 3 (exempting retailers from obligation to collect tax).

15. See, e.g., CONN. GEN. STAT. ANN. § 22a-88 (West); HAWAII REV. STAT. § 339-7(a); MASS. GEN. LAWS ANN. ch. 94, § 319; ORE. REV. STAT. § 459.850(3); VA. CODE § 3.1-382.1.

16. S.D. COMPILED LAWS ANN. § 34-16-C-9. This measure was amended in 1974 to add the term "recyclable" to the list of acceptable container characteristics, thereby diverting the original intent of the statute.

17. See text at notes 47-56, infra. HAWAII REV. STAT. § 339-7(b); ADMIN. CODE OF THE CITY OF NEW YORK ch. 46.

18. MINN. STAT. § 116F.06.

19. U.S. CONST. amend, XXI. See Anchor Hocking Glass Corp. v. Barber, 105 A.2d 271, 278-280 (Vt. 1954).

20. See Juice Tree of Hawaii, Inc. v. Yuen, __ P.2d __, 9 ELR 20739 (Hawaii Cir. Ct. Sept. 18, 1979).

21. Id.; Can Manufacturers Inst., Inc. v. State, __ Minn. __, __ N.W.2d __, 9 ELR 20744, 20746-47 (Minn. Sept. 7, 1979).

22. Anchor Hocking Glass Corp. v. Barber, 105 A.2d 271, 276 (Vt. 1954).

23. U.S. CONST. art. 1, § 8, cl. 3.

24. Juice Tree of Hawaii, Inc. v. Yuen, __ P.2d __, 9 ELR 20739 (Hawaii Cir. Ct. Sept. 18, 1979); Clover Leaf Creamery, Inc. v. State, __ Minn. __, __ N.W.2d __, 9 ELR 20739 (Minn. Sept. 7, 1979); Society of the Plastics Industry, Inc. v. City of New York, 326 N.Y.S.2d 788, 1 ELR 20467 (N.Y. Sup. Ct. 1971).

25. Southern Pac. Co. v. Arizona, 325 U.S. 761, 767 (1945).

26. Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429 (1978).

27. See American Can Co. v. Oregon Liquor Control Comm'n, 517 P.2d 691, 701, 4 ELR 20208, 20222 (Ore. App. 1973) ("the free flow of commerce cases are of no help to plaintiffs because they protect only the physical means of interstate transportation …."); Can Manufacturers Inst., 9 ELR at 20746.

28. Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1 (1928).

29. West v. Kansas Natural Gas Corp., 221 U.S. 229 (1911).

30. 437 U.S. 617, 8 ELR 20540 (1978).

31. Bowie Inn, Inc. v. City of Bowie, __ A.2d __, 2 ELR 20056, 20060 (Md. Cir. Ct. 1971); see, e.g., American Can, 517 P.2d at 701, 4 ELR at 20221.

32. A study commissioned by the State of Oregon three years after enactment of bottle deposit law found that in some ways out-of-state bottlers had benefitted from it. APPLIED DECISION SYSTEMS, STUDY OF THE EFFECTIVENESS AND IMPACT OF THE OREGON MINIMUM DEPOSIT LAW at II-92 (1974).

33. American Can, 517 P.2d at 697, 4 ELR at 20220; Bowie Inn, Inc. v. City of Bowie, __ A.2d __, 2 ELR 20056, 20060 (Md. Cir. Ct. 1971).

34. 397 U.S. 137, 142 (1970).

35. American Can, 517 P.2d at 696, 4 ELR at 20220, aff'g American Can Co. v. Oregon Liquor Control Comm'n, __ P.2d __, 2 ELR 20644, 20646 (Ore. Cir. Ct. 1972); Allview Inn, Inc. v. Howard Cty., __ A.2d __, 2 ELR 20223 (Md. Cir. Ct. 1972); Bowies Inn, Inc. v. City of Bowie, __ A.2d __, 2 ELR 20056, 20057 (Md. Cir. Ct.1972).

36. See GENERAL ACCOUNTING OFFICE, POTENTIAL EFFECTS OF A NATIONAL MANDATORY DEPOSIT ON BEVERAGE CONTAINERS 51-57 (1977).

37. Comment, The Negative Commerce Clause and State Environmental Legislation — Externalities Suggest Application of the Tax Standard to Environmental Regulations, 32 VAND. L. REV. 913, 927 (1979). See also L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 6-12 at 340 (1978) (Supreme Court appears to apply many formulas simultaneously).

38. Brotherhood of Locomotive Firemen & Enginemen v. Chicago, Rock Is., and Pac. R.R., 393 U.S. 129 (1968).

39. Huron Portland Cement Co. v. Detroit, 362 U.S. 440 (1960) (upholding application of smoke abatement requirements to ships on Great Lakes).

40. Breard v. Alexandria, 341 U.S. 622 (1951).

41. Pacific States Basket & Box Co. v. White, 297 U.S. 176, 184 (1935).

42. Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955); Railway Express Co. v. New York, 336 U.S. 406, 410 (1949).

43. American Can, 517 P.2d at 698, 4 ELR at 20223; Anchor Hocking Glass Corp. v. Barber, 105 A.2d 274, 275 (Vt. 1954).

44. 326 N.Y.S.2d 788, 1 ELR 20467 (N.Y. Sup. Ct. 1971).

45. American Can, 517 P.2d at 697, 4 ELR at 20223.

46. Actually, the court ruled only that plaintiffs were likely to prevail on the equal protection issue, since the decision was on a motion for a preliminary injunction. The court did not change its conclusions subsequently.

47. HAWAII REV. STAT. § 339-7(b).

48. __ P.2d __, 9 ELR 20739 (Hawaii Cir. Ct. Sept. 18, 1979).

49. A copy of the stipulation is available from ELR (18 pp. $2.25, ELR Order No. C-1198).

50. The stipulation provides that the effect of the law would be to force many of the commercial plaintiffs to lose earnings, lay off employees, or go out of business.

51. __ Minn. __, __ N.W.2d __, 9 ELR 20739 (Minn. Sept. 7, 1979).

52. MINN. STAT. § 116F.21.

53. 9 ELR at 20740.

54. The court noted that although the intent of the law was to encourage purchases of goods in refillable containers, consumers strongly preferred the convenience of throwaways and would therefore shift to paper packaging. 9 ELR at 20742.

55. 9 ELR at 20742.

56. It was solely with respect to this last point that Justice Wahl filed a dissent. 9 ELR at 20743. In her view, the case law required the statute to be upheld, the admitted lack of any benefits from the plastic container ban notwithstanding. She accepted the state's argument that the plastics prohibition was simply the first step in a long-term program to optimize packaging techniques in the state, and favored permitting the state to pursue this goal in ways which were less than ideal or even ineffective as long as it did not impose significant burdens on the regulated industry.

57. MINN. STAT. § 116F.06.

58. MINN. STAT. § 116F.06 subd. 2.

59. See MINN. STAT. §§ 116F.01; 116F.05, subd. 1(f); 116F.05, subd. 3; 116F.06.

60. 9 ELR at 20744.

61. 9 ELR at 20745.

62. See cases cited supra at notes 25, 26, 37-41.

63. This is one respect in which the court's analysis appears deficient. While it is true that in the cited cases the Supreme Court declined to undertake a careful analysis of the adverse impacts of the regulatory measures at issue, the reason is that it disdained any type of balancing approach at the outset; the measures were aimed at health and other social objectives, the benefits and costs of which were deemed beyond the ken of the judiciary. These cases therefore do not support the approach of the court in Can Manufacturers Institute, which was to announce a balancing test, praise the benefits of the statute, and then dismiss the burdens as irrelevant. In any event, the court's error was probably inconsequential because at that time the statute had never been used to prohibit the use of any package. It thus would have been very difficult to speculate as to the likely economic consequences of the way in which the MPCA would implement the law, and then to find such costs "clearly excessive" under Pike.

64. MINN. STAT. § 116F.06, subd. 3.

65. See notes 5-11, supra.

66. CALIFORNIA PUBLIC INTEREST RESEARCH GROUP, THE ECONOMIC, RESOURCE, AND ENVIRONMENTAL IMPACTS OF DEPOSIT LEGISLATION § 4, at 7 (November 1, 1979).