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2 ELR 20642 | Environmental Law Reporter | copyright © 1972 | All rights reserved American Can Company v. Oregon Liquor Control CommissionNo. 75567 (Or. Cir. Ct. September 1, 1972)Oregon's 1971 Bottle Bill, outlawing tab-top cans and imposing a minimum refund value for all other beer and soft-drink containers, is held constitutional. Plaintiffs, container manufacturers, bottlers, and out-of-state breweries, seek to have the act declared unconstitutional on five grounds: that it imposes an undue burden on interstate commerce; that it violates the equal protection clause of the U.S. Const.; that it violates the privileges and immunities clause of the Ore. Const.; that it violates the due process clause of the U.S. Const.; and the due process clause of the Ore. Const.Finding first that the legislation is not of the type specifically authorized by amend. XXI of the U.S. Const., the court disposes of all arguments except that of the commerce clause with a conclusion that the act is a reasonable exercise of the state's police power, and that there is no invidious discrimination against selected industries. The most analogous commerce clause precedents are found to be recent district court opinions in Florida and Indiana upholding bans on phosphate detergents and a 1954 Vermont case affirming the prohibition of beer sold in non-returnable glass containers.Recent federal statutes encouraging state regulation of environmental matters are also cited in finding no conflict with the commerce clause. Counsel for Plaintiffs Frederic R. Yerke Counsel for Defendants Counsel for Amicus Curiae Oregon Environmental Council Counsel for Amicus Curiae Natural Resources Defense Council Sloper, J. Gentlemen: This is a suit seeking a declaratory judgment of the Court that Chapter 745, Oregon Laws 1971, hereinafter referred to as the "Act", is unconstitutional, void and unenforceable, and for an injunction, restraining the defendants from applying, or in any manner enforcing the statute. The plaintiffs include (1) manufacturers of metal cans who supply beer and soft drink manufacturers; (2) brewers who manufacture beer which is shipped into and sold on the Oregon market; (3) contract canners who are located outside of Oregon and who package various soft drinks for the Oregon market, and for soft drink wholesalers who sell soft drink beverages in the State of Oregon; and (4) soft drink manufacturers who sell their products on the Oregon market. The intervenors are various manufacturers of glass beverage containers. The plaintiffs' complaint and the complaint of the intervention seek identical relief. The defendants are the Oregon Liquor Control Commission and State Department of Agriculture which are the departments and agencies of the State government that are charged by the provision of the Act with the implementing and enforcing of said Act. Defendants Gration, Hudson, and Young are the commissioners of the defendant Oregon Liquor Control Commission. Defendant Martin is the Administrator of the Commission and defendant Mann is the Director of the State Department of Agriculture. The allegations of the complaint and the complaint in intervention are quite lengthy, and since most of them had been admitted in the answer to each, I will attempt to summarize the pertinent parts of each rather than to set them out in great detail. (1) The plaintiffs in group #1 above, manufacture and sell metal cans and closures to the manufacturers of beer and soft drink beverages. The number of metal containers used annually has risen sharply in the United States in recent years. At the same time, the use of cans on the Oregon market had also increased significantly. The plaintiffs in group #2 are brewers who are engaged in the manufacturing and packaging of beer products at breweries outside the State of Oregon for the distribution and sale on the Oregon market, as well as the national market. A large percentage of their manufacturing system is devoted to the one-way merchandising and a very large percentage of the sales of this group of plaintiffs are one-way, no-deposit containers. The plaintiffs in group #3 are contract canneries who pack various soft drinks in plants which are located outside of Oregon for distributors and retailers in Oregon, and who sell the soft drink beverages within the State of Oregon. Again, a very large percentage of these plaintiffs' production is the one-way, non-returnable convenience containers. The 4th group of plaintiffs are soft drink manufacturers who package and sell their own products on the Oregon market, and who also use a very high percentage of one-way, non-returnable containers in their distribution system. Under the provisions of the Act, the plaintiffs can-manufacturers' market for metal containers would be substantially reduced, resulting, no doubt, in the closing of some portions of some of these plaintiffs' plants, or at least curtailing their production. The brewers would be required by the provisions of the Act to prepare a new package for the Oregon market and would, by the terms of the Act, be unable to use the package mix now used by them. The contract canners' manufacturing business for the Oregon soft drink bottlers would be greatly curtailed as would some contract canners' business because their distribution system would probably be eliminated. The soft drink manufacturers would incur additional capital and operating expense because of a restructuring of their present system of production, distribution and sales from the one-way, non-returnable containers to returnable bottles. The intervenors' allegations in these matters are similar to the soft drink can manufacturing companies. Plaintiffs and intervenors further allege that the Act will not result in any material reduction of litter or solid waste, and that there are other alternative methods by which litter and solid waste could be more effectively handled. The Court has had the benefit of trial memorandums from the plaintiffs, intervenors and the defendants. Amicus curiae briefs have been submitted by the Oregon Environmental Council, the Natural Resources Defense Council and the People's Lobby against non-returnables. The Court has also received post-trial briefs from the plaintiffs, the intervenors and defendants, as well as a supplemental memorandum, from amicus curiae Oregon Environmental Council. The Court has carefully examined each and all of the memorandums and the authorities therein cited, as well as having conducted an independent research into the applicable law. The citations which are to follow herein are taken in a large degree from one or more of the memorandums referred to. The stated purpose in Section 6 and Section 8 of the Act is to promote the use in this state of reusable beverage containers of a uniform design and to facilitate the return of such reusable containers to the manufacturers for reusage. Among other things, the [2 ELR 20643] Act requires a minimum refund value of not less than five cents on all non-certified mait beverage and soft drink containers sold in the state. (Sec. 2, (1). This five cent minimum refund value is reduced to the sum of two cents for any beverage container that is certified for reuse. (Sec. 2, Par. 2, and Sec. 6). Every beverage container offered for sale shall clearly indicate its refund value by having the refund value affixed on the container with certain exceptions. (Sec. 5, (1), (2), subsec. 1). The refund value of the empty beverage container, upon being returned by the consumer to the dealer, shall be paid to the consumer and the dealer should, in turn, be paid the return value by the distributor. (Sec. 3, (1), (2). Any person, upon approval by the defendant Oregon Liquor Control Commission, may establish a redemption center to facilitate the return of beverage containers. (Sec. 8, Subsection 1). The sale of all metal beverage containers so designed and constructed that can be opened without the aid of a can opener is prohibited. (Sec. 5, Subsection 3).This, of course, refers to the popular pull-top can. The plaintiffs' and intervenors' attack against the Act is based upon a three-pronged constitutional challenge: (1) That the Act violates the commerce clause of the United States Constitution by imposing an undue burden on interstate commerce.(Art. I, Sec. 8, Clause 3.) (2) The Act violates the equal protection clause of the United States Constitution and the privileges and immunities clause of the Oregon Constitution. Amendment XIV, Sec. 1. (3) That the Act violates the due process of the United States Constitution and Section 18 of Article 1 of the Oregon Constitution. During the opening statement, Mr. Leahy for the first time, presented an issue concerning plaintiff brewers under the Twenty-first Amendment of the United States Constitution and that matter has been given special treatment by counsel for the plaintiffs and intervenors in their post-trial Briefs. I have concluded that the defendants' position is untenable, and that under more recent, better and more logical reasoned decisions, the Twenty-first Amendment no longer, if it ever did, completely insulated any alcoholic beverage regulation from the constitutional claims of interference with federal commerce, equal protection, and due process clauses. The Twenty-First Amendment Versus The Commerce Clause, 55 Yale Law J 815 (1946): "If the twenty-first amendment be examined in its historical matrix, no intent to vest an unlimited jurisdiction in the states is discernible. The sole function of Section 2 was to render an iron-clad protection to the 'dry states' against any possible influx of intoxicants from non-prohibition areas. * * *" (pp. 816-817) Sail'er Inn, Inc., v. Kirby, 95 Cal. Rptr. 325, 485 P2d 525 (1971): "Although some early cases painted state powers under Section 2 of the Twenty-first Amendment with a broad brush, later decisions have taken a position more in keeping with the original intent of the Amendment." (485 P2d at 535) And as the Oregon statute might be paraphrased — plaintiffs' Brief, p. 4: "* * * is not even tangentially related to 'transportation or importation' of liquor into [Oregon], and therefore does not fall within the literal language of the Twenty-first Amendment. The statute merely regulates [used beverage containers] at the [retail and wholesale] level, and has nothing to do with the flow of alcoholic beverages into the state." (485 P2d at 536) Because the Act herein does not in any manner attempt to regulate alcoholic beverages but is a regulation of the containers in which the alcoholic beverage may be sold, the Twenty-first Amendment does not deprive the plaintiff brewers herein the opportunity to raise the constitutional issues presented herein. Assuming, but not deciding, that the corporate and nonresident plaintiffs have standing to raise the equal privileges and immunity claims, the plaintiffs and intervenors, under the due process attack, allege that the Act is arbitrary, unreasonable, oppressive and that it lacks a real and substantial relationship to the objective sought. Plaintiffs and intervenors urge that the Act will not accomplish the goals for which it was enacted and will in no way assist or lessen the litter and solid waste problem but will worsen its problems and will place an unreasonable and catastrophical financial burden upon each of the various classes of plaintiffs. The burden, of course, is upon the plaintiffs to prove their contention that the Act is unconstitutional in any respect. There is a strong presumption that any legislative act proposed to regulate business and economic matters does not violate federal standards of due process. The test to be employed is similar to the test of the equal protection challenge. Nearly forty years ago, the United States Supreme Court in the case of Nebbia v. New York, 291 U.S. 502 (1933); defined the due process standard: "(A) state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adopted to its purpose. The courts are without authority to either to declare such policy, or, when it is declared by the legislature, to override it." And in the case of Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 488 (1955), the Court said: "The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws regulatory of business and industrial conditions because they may be unwise, improvident, or out of harmony with a particular school of thought." And in the case of Ferguson v. Skrupa, 372 U.S. 726 (1963), the Court decided: "We refuse to sit as a super-legislative to which the wisdom of legislation," and we emphatically refuse to go back to the time when courts used the Due Process Clause "to strike down state laws, regulatory or business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought." Neither does an allegation that as economic regulation violates due process simply because an additional financial burden is imposed. Northwest Laundry v. Des Moines, 239 U.S. 486 (1915), is which the Court refused the plaintiffs' contention that it would be necessary in order to comply with the city ordinance to remodel their existing furnaces, the Court said: "Nor is there any valid Federal Constitutional objection in the fact that the regulation may require the discontinuance of the use of property, or subject the occupant to large expense is complying with the terms of the law or ordinance." And in the case of Phillips v. City of Bend, 192 Or. 143, is which the Oregon State Supreme Court upheld the validity of a city ordinance under due process attack which prohibited solicitations by door-to-door peddlers. The Oregon Court on Page 149 quotes from 341 US 622, Jack H. Breard v. City of Alexandria: "* * * This case calls for an adjustment constitutional rights in the light of the particular living conditions of the time and place. Everyone cannot have his own way and each must yield something to the reasonable satisfaction of the needs of all . . ." "The Constitution's protection of property rights does not make a state or a city impotent to guard its citizens against the annoyance of life because the regulations may restrict the manner of doing a legitimate business. "* * * we think that even a legitimate occupation may be restricted or prohibited in the public interest . . ." The plaintiffs and intevenors, under the due process attack, cite Art. I, Sections 10 and 18, Oregon Constitution. Section 10 guarantees a remedy for an injury to person, property or reputation and with open and speedy justice. Section 18 is the constitutional guarantee of just compensation when private property is taken for a public use. The Act, of course, in no way denys or prevents any claim that the plaintiffs or intervenors may have for the taking of any private property for a public use, nor does it deny to them any remedy for injury or access to the courts. The provisions as set forth in the Act, supra, show on their face that they bear a rational relationship to the purpose for which the Act was enacted, i.e., problems of litter and solid waste disposal, and certainly this is a matter of legitimate and proper government concern. The attack, based on the alleged failure of constitutional due process, must fail. Turning next to the claim that the Act violates the equal protection clause of the U.S. Constitution and the privileges and the immunitive clause of the Oregon Constitution. The plaintiffs and intervenors urge that the Act creates a number of classifications which violate these clauses, and that, therefore, these provisions are unreasonable, arbitrary and constitutionally prohibited. They say that these classifications invidiously discriminate against the plaintiffs and which have no rational basis when viewed in light of the purposes of the Act, and that the Act makes an express designation of products to be singled out for arbitrary treatment without any objective criteria for the designations. Further, that the alleged discriminatory treatment in these classifications are prohibited by the privileges and immunity provisions of the Oregon Constitution in that the Act excludes some indistinguishable group of persons from regulation, thus creating a favored group who are given immunity from the Act. Again, there is a strong presumption, in determining equal protection claims, of the validity of legislative enactments, and when the law is challenged, as it is in this case, a regulation which does not infringe on the specially protected rights of free speech, voting and freedom from racial discrimination, this presumption of legislative validity may be overcome only by a conclusive showing of arbitrariness: (Omicus curiae brief — National Resources Defense Council). Appellate Courts have in deciding equal protection claims repeatedly held as they have in due process cases, that the Courts should not sit as some kind of a superlegislatures and to review the wisdom of the laws enacted or the policy that may have been behind the enactment and which is most aptly expressed by Mr. Justice Frankfurter: "Most laws dealing with economic and social problems are matters of trial and error. That which before trial appears to be demonstrably bad may belie prophesy in actual operation. It may not prove good, but it may prove innocuous. But even if a law is found wantingon trial, it is better that its defects should be demonstrated and removed than that the law should be aborted by judicial fiat." (A.F.L. v. American Sash Co., 335 U.S. 553. Other examples of judicial deferment to the legislative judgment are found in Railway Express Agency v. New York, 336 U.S. 106 (1949): "The local authorities may well have concluded that those who advertised their own wares on their trucks do not present the same traffic problem in view of the nature or extent of the advertising which they use. It would take a degree of omniscience which we lack to say that such is not the case." "We cannot say that that judgment is not an allowable one. Yet if it is, the classification has relation to the purpose for which it is made and does not contain the kind of discrimination against which the Equal Protection Clause affords protection. It is by such practical consideration based on experience rather than by theoretical inconsistencies that the question of equal protection is to be answered." 336 U.S. at 110. ". . . [T]he fact that New York City sees fit to eliminate from traffic this kind of distraction but does not touch what may be even greater ones in a different category, such as the vivid displays on Times Square, is immaterial. It is no requirement of equal protection that all evils of the same genus be eradicated or none at all." 336 U.S. at 110. And in Williamson v. Lee Optical of Oklahoma, supra, 348 U.S. 483 (1955) "Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Tigner v. Texas, 310 U.S. 141. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. Semler v. Dental Examiners, 294 U.S. 608. The legislature may select one phase of one field and apply a remedy there, neglecting the others. A.F. of L. v. American Sash Co., 335 U.S. 538. "Certainly the need of such legislation rests primarily upon the judgment of the legislature. It is only when a legislative act clearly appears arbitrary, capricious, and without reasonable relation to the object sought to be attained that courts will interfere. The presumption is in favor of the validity of the act . . ." And finally, in the very recent case of James v. Strange, 92 U.S. 2027, 2031 (1972): "We turn therefore to the Kansas statute, aware that our reviewing function is a limited one. We do not inquire whether this statute is wise, or desirable, or "whether it is based on assumptions scientifically substantiated." . . . Misguided laws may nonetheless be constitutional.It has been noted both in the briefs and at argument that only $17.000 has been recovered under the statute in its almost two years of operation and that this amount is negligible compared to the total expended. Our task, however, is not to weigh this statute's effectiveness but its constitutionality. Whether the returns under the statute justify the expense, time, and efforts of state officials is for the ongoing supervision of the legislative branch." For a contrary holding see Society of The Plastic Industry, Inc., vs. City of New York, 326 N.Y.S 2d, 788. The Court thus fails to find that there has been any invidious discrimination against any selected industries and that each of the alleged six discriminatory classifications on pages 14 and 15 of the plaintiffs' trial memorandum must fail. There is one precedent which deals especially with throw-away containers. In Anchor Hocking Glass Corp. v. Barber, 105 A 2d 271 (1954), a Vermont statute which prohibits the sale of malt products in non-returnable glass containers was attacked by the glass manufacturers and beer wholesalers by declaratory judgment that alleged that State and Federal constitution provisions were violated. The Court sustained the demurrer and dismissed the plaintiff's action; and in so doing, held that the fact that there was litter other than beer bottles did not invalidate the Vermont law and that requiring non-returnable bottles is within police power of the Vermont Legislature. The Court also set a standard for legislative classification as follows: "The equal protection clause of the Fourteenth Amendment, U.S.C.A. Const., does not prohibit legislative classification, and the imposition of statutory restraints on one class which are not imposed on another. * * * The State possesses a wide discretion in exercising this phase of its police power with the qualification that the classification must not be purely arbitrary or irrational, but based upon a real and substantial difference, having a reasonable relation to the subject of the particular legislation. * * * 'A particular classification is not invalidated by the Fourteenth Amendment merely because inequality actually results. Every classification of persons or things for regulation by law produces inequity in some degrees; but the law is not thereby rendered invalid * * * unless the inequality produced be actually and palpably unreasonable and arbitrary.' * * * The burden of proving that legislative classification is essentially arbitrary and rests upon no reasonable basis is upon the party who asserts it, and it will not be declared invalid 'unless, viewed in the light of facts made known or generally assumed, it is of such a character as to preclude the assumption that the classification rests upon some rational basis within the knowledge and experience of the legislators. A statutory discrimination will not be set aside as the denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it.' * * * 105 A.2d at 275. The Legislature is simply not required to legislate upon all possible litter problems or to attempt to solve the State's entire solid waste problem in one statute. Because the Oregon State Legislature could have concluded and did conclude that there was, in fact, a rational relationship between the classifications in the Act and the legislative purposes. The Act is invulnerable to the plaintiffs and intervenors second constitutional attack. This is true, regardless of whether the Court believes that the Act or policy behind the Act to be wise or whether experts agree or disagree as to the results which might be reasonably anticipated by the Act. Turning finally to the major thrust of the plaintiffs' and intervenors' case that the Act violates the Commerce Clause — Art 1, Sec. 8, Clause 3, of the Federal Constitution; this clause gives to the Congress the power to regulate commerce among the several states. Because the national "common market", which is intended by the Commerce Clause, does not absolutely prohibit State legislation in the area of commerce, a state may regulate in a constitutionally accepted manner. A state may not, however, give preferential treatment to in-state sources at the expense of out-of-state sources and a free trade that is intended by a national "common market" must be without protectionist barriers and restrictive discrimination of one state against another state's product.The Commerce Clause further protects the very instrumentalities of interstate commerce, i.e., the railroads, truck lines, buses, etc., where in the national interest it is imperative that there must be a uniform treatment among the several states. Southern Pacific v. Arizona, 325 US 761 (1945): "[E]ver since Gibbons v. Ogden 9 Wheat. (US) 1, 6 LEd 23, the states have not been deemed to have authority to impede substantially the free flow of commerce from state to state, or to regulate those phases of the national commerce, which, because of the need of national uniformity, demand that their regulation, if any, be prescribed by a single authority." (325 U.S. 767) Plaintiffs and intervenors principally rely for their authority, for the proposition that the Act violates the interstate Commerce Clause, on the case of Pike v. Bruce Church, 397 U.S. 137 (1970). "Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: 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. Huron Cement Co. v. Detroit, 362 US 440, 443, 4 LEd 2d, 852, 856, 80 S Ct 813, 78 ALR 2d 1294. 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. * * * (397 US at 142) The Pike case is clearly distinguishable to the case at hand. Pike involved a challenge against an Arizona statute which required that all cantaloupes grown in Arizona be packaged in the state. The obvious legislative intent in the Pike case was a law which would further the financial interest of local farmers by restricting exports from the state. The state's interest in the matter was economic. It is obvious that the Act herein is not for an economic purpose. A case, which the Court feels is a judicial precedent in this case is an Oregon case of Pacific States Box & Basket Co. v. White in which the U.S. Supreme Court sustained, against a burden of interstate commerce attack, a regulation of the size and shape of berry containers to be used in Oregon. The containers were to be of a certain prescribed dimension, and the regulation was attacked by a California manufacturer under the due process clause, equal protection clause, and the interstate commerce clause. The Supreme Court sustained the Oregon regulation against the plaintiffs' contentions, and Justice Brandeis stated: "Different types of commodities require different types of containers; and as to each commodity there may be reasonable difference of opinion as to the type best adapted to the protection of the public. Whether it was necessary in Oregon to provide a standard container for raspberries and strawberries; and, if so, whether that adopted should have been made mandatory, involve questions of fact and of policy, the determination of which rests in the legislative branch of the state government. The determination may be made, if the Constitution of the state permits, by a subordinate administrative body. With the wisdom of such a regulation we have, of course, no concern. We may inquire only whether it is arbitrary or capricious. That the requirement is not arbitrary or capricious seems clear. That the type of container prescribed by Oregon is an appropriate means for attaining permissible ends cannot be doubted. . . . [7] Fourth. The order does not unduly burden interstate commerce. It is aimed, not at the importation or sale of other type of containers, but at their use in Oregon by packers of raspberries and strawberries and the later transportation and sale of the packages. The prohibition of other types involved in prescribing the standard is nondiscriminatory. It applies regardless of the origin of the containers. The plaintiff is a manufacturer of containers, not a packer or shipper of berries. It is not prohibited from shipping its tin top containers into Oregon; nor from selling them there. The operation of the order is intrastate, beginning after the interstate movement of the containers has ceased, and after the original package has been broken. To sustain this contention of the plaintiff would be to hold that its containers, because of their origin, are entitled to immunity from the exercise of the state regulatory power. Compare Packer Corporation v. Utah, 285 U.S. 105, 111, 112, 52 S Ct. 273, 76 L Ed. 643, 79 A.L.R. 546." Another case which is a strong precedent to sustain the validity of the Act is Huron Portland Cement Co. v. Detroit, 362 U.S. 40. In Portland Cement case, the Supreme Court upheld the validity of the City of Detroit Smoke Abatement ordinance which prohibits the firing of boilers on the plaintiff's ships which were engaged in interstate commerce on the Great Lakes even though these boilers had been approved by the United States Coast Guard. "Legislation designed to free from pollution the very air people breathe clearly falls within the exercise of even the most traditional concept of what is compendiously known as the police power. In the exercise of that power, the states and their instrumentalities may act, in many areas of interstate commerce, concurrently with the federal government." 362 U.S. at 442. And in the case of Brotherhood of Locomotive Firemen & Enginement v. Chicago, Rock Island & Pacific Railroad, 39 U.S. 129, in which the Supreme Court dismissed the plaintiff's contention that a state law requiring a "full crew" violated the Commerce Clause, and was oppressive because the increase in costs exceeded any possible benefits. "We think it plain that in striking down the full-crew laws on this basis, the District Court indulged in a legislative judgment wholly beyond its limited authority to review state legislation under the Commerce Clause * * * The District Court's responsibility for making "findings of fact" certainly does not authorize it to resolve conflict in the evidence against the legislature's conclusion or even to reject the legislative judgment on the basis that without convincing statistics in the record to support it, the legislative view point constitutes nothing more than what the District Court in this case was pure speculation." 393 U.S. at 136, 138-39. In the very recent case of Soap and Detergent Association v. Clark, et al, which was decided on September 8, 1971, by U.S. District Court, Southern District, Florida. That Court held that the plaintiffs were not entitled to a preliminary injunction and that the legislation was not an unreasonable burden on interstate commerce, and thus did not violate the Commerce Clause of the U.S. Constitution. In the Soap and Detergent Association case, the plaintiffs brought the action seeking a declaratory judgment that a county ordinance prohibiting the sale of detergents from on and after a certain date was unconstitutional and was an unreasonable burden on interstate commerce. The Court held plaintiffs were not entitled to a preliminary injunction unless there is a substantial likelihood that the ordinance would be declared to be unconstitutional. (330 Federal Supplement, 1218) "To adequately grasp the breadth of the issues presented it is necessary to examine the history of phosphate detergents as well as their present day effect on water quality. Detergents containing phosphates have been marketed nationally for more than 23 years. They are used for an increasingly wide variety of household and industrial cleaning purposes.The annual sales of detergents containing phosphates exceed one million dollars nationwide and more than 5.5 million dollars in Dade County. Of the total amount of detergents marketed for use in automatic home washing machines, more than 90% contain phosphates. Experts for the detergent industry testified that non-phosphate detergents are not as effective cleaning agents as their phosphate counterparts, and non-phosphate detergents may be more hazardous to children in case of accidental ingestion or contact with their eyes or other sensitive parts of the anatomy . . ." ". . . The detergent industry claims both in testimony and memorandum of law that in order to comply with the County ordinance it will have to expend hundreds of thousands of dollars to make the necessary changes in product formulation and to deliver these new products in new and different labeled containers to Dade County. These large expenditures will be totally wasted if the plaintiffs prevail on the merits of the cae, and the ordinance is ruled unconstitutional. Conversely, if the detergent industry chooses to refrain from complying with the ordinance and abandon the Dade County market, the resulting loss in sales and good will to them would run into the millions of dollars. Even though the detergent industry can show financial loss if the effective date of the ordinance is not enjoined, the detergent industry must also show that there is a substantial likelihood the ordinance will later be held unconstitutional. "The judicial power cannot be invoked to invalidate the judgment of the County's citizens speaking through their elected representatives as to the price society should pay to promote health and safety in their community. Balancing the uniform agreement of the County's experts that a total ban on phosphates in detergents will substantially improve the quality of the County's waters, against the financial harm to the detergent industry from complying with such a ban, the scales are strongly tippedin favor of the legislative pronouncement by Dade County's Board of County Commissioners." Or, as is reported in a recent Federal District Court case involving a challenge to an Indian law regulating phosphates and detergents: "Perhaps it [the statute] will do no good, but basically what is being asked of this Court is to say that the Indiana Legislature has no right to try this and see whether or not the experiment will work. . . . [I]f the people of Indiana prefer to wear gray shirts and have a little hardness distilled on their glasses . . . . as a price for obtaining cleaner water, or for obtaining a chance of having lesser phosphate content which in turn may produce . . . lesser amounts of algae, that is a choice which we feel the people of Indiana should make through the Indiana Legislature." Soap and Detergent Assoc. v. Offutt, 3 ERC 1117, 1120 (S.D. Ind. 1971) (denying a preliminary injunction). Cases in which it has been found that a state regulation is an unreasonable burden on interstate commerce generally are those where the state regulation seeks to regulate the very instrumentalities of interstate commerce, such as trucks, trains and buses as earlier referred to. It is in these areas that the Supreme Court has found that uniformity on a national basis required and has invalidated state regulations which attempted to do so. Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520. Southern Pacific v. Arizona, 325 U.S. 761. The other major type of case, in which state regulations have been found to be constitutionally deficient, is in which a state regulation attempts to treat intrastate commerce differently from interstate commerce, and where the regulation seeks to serve an economic purpose of some of the citizens of the state. Pike v. Bruce Church, 397 U.S. 1970. It cannot be seriously contended but that Federal legislation accurately expresses the national policy when it is said that the national transportation system should be regulated by the Federal Congress. "[The Arizona train law] materially impedes the movement of appellant's interstate trains through that State and interposes a substantial obstruction to the national policy proclaimed by Congress to promote adequate, economical, and efficient railway transportation service." 325 U.S. at 773. The states have the right under the Commerce Clause of the Constitution to regulate local trade, manufacturing, marketing and sale of local products, consumer and environmental protection. When the purposes of a state regulation favor the health, safety and welfare of the citizens, the regulation has historically been sustained on the basis of the 'State's Police Power', and the 'State's Police Power' is one of the supporting structures that is cited in cases which determine whether or not a state regulation violates the Commerce Clause. In determining the validity of the Act it is most relevant that the Act be consistent with the expressed Federal policy, which favors the state's exercise of its own authority over the environment. This Federal policy can be detected in The Federal Solid Waste Disposal Act of 1965 which begins: (1) that the continuing technological progress and improvement in methods of manufacture, packaging, and marketing of consumer products has resulted in an evermounting increase, and in a change in the characteristics, of the mass of material discarded by the purchaser of such products' (4) that inefficient and improper methods of disposal of solid wastes result in scenic blights, create serious hazards to the public health, including pollution of air and water resources, accident hazards, and increase in rodent and insect vectors of disease, have an adverse effect on land values, create public nuisances, otherwise interfere with community life and development; (6) that while the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies, the problem of waste disposal as set forth above have become a matter national in scope and in concern and necessitate Federal action through financial and technical assistance and leadership in the development, demonstration, and application of new and improved methods and processes to reduce the amount of waste and unsalvageable materials and to provide for proper and economical solid-waste disposal practices. Pub. L. 89-272, Title II, § 202, 79 Stat. 997, 39 U.S.C. § 3251. The Environmental Quality Improvement Act of 1970 states: (b) * * * (1) The Congress declares that there is a national policy for the environment which provides for the enhancement of environmental quality. This policy is evidenced by statutes heretofore enacted relating to the prevention, abatement, and control of environmental pollution, water and land resources, transportation, and economic and regional development. (2) The primary responsibility for implementing this policy rests with State and local governments. Pub. L. 91-224, Title II, § 202, 84 Stat. 114, 42 U.S.C. § 4371. Similarly, in the Federal Water Pollution Control Act, (b) * * * it is declared to be the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of the states in preventing and controlling water pollution, to support and aid technical research relating to the prevention and control of water pollution, and to provide Federal technical services and financial aid to State and interstate agencies and to municipalities in connection with the preventio and control of water pollution. The attack by the plaintiffs and intervenors against the Act, under the Commerce Clause, does not appear to the Court to be supported by judicial precedent and violates sound, time tested legal principles as well as common sense and judgment. The Act does not regulate any instrumentalities of interstate commerce, does not discriminate in favor of local commerce, is consistent with the announced national policy of environmental control and protection and is a valid exercise of the 'State [2 ELR 20646] Police Power'. In addition, the Act does not discriminate against any out-of-state beer or soft drink manufacturer to the advantage of any instate manufacturer nor does it impose any special requirement on beverage containers which are manufactured outside of the state or grant any special exemptions to any produced in the state. I have not herein discussed the voluminous evidence offered in the course of the trial, although I will review very briefly a portion. It is sufficient to observe that the evidence demonstrates that the use of malt beverages and soft drinks has increased tremendously annually in the United States in recent years. A large part of this increase is reflected in and attributed to the use of the new convenient packages both in cans and non-returnable bottles. The evidence further demonstrates that there may be an adverse economic impact, at least upon some of the plaintiffs and intervenors as a result of the Act. As I have previously found, the fact that there may be new or additional costs incurred by the plaintiffs and intervenors, does not in and of itself invalidate the Act. Huron Portland Cement Co. v. Detroit, supra. Soap and Detergent Association v. Clark, et al, supra. The evidence was marshaled most completely by the plaintiffs and intervenors and was presented in a skilled and workmanlike manner, and while the Court is unable to agree with counsels' interpretation of what the evidence means when applied to the law of the case, is not to indicate in any way that the evidence was not given due and deliberate consideration by the Court. What could be more appropriate and perhaps anticipated than the State of Oregon . . . the State which has demonstrated in many ways its concern for its environment and the happiness and well-being of its citizens; the State which has the largest area percentage-wise of its beaches in the public domain; the State which has recognized the dangers of esthetic pollution, and is a leader in the removal of bill-boards from our highway system; the State which has demonstrated its concern for a way of life by enacting laws preventing air pollution and protecting our water supply, would be the first State to enact major legislation directed at the litter and solid waste disposal problems. While Oregon may be considered to be first in this field, it is no longer a lonely voice crying out in the wilderness of pollution, waste and litter, because many other states have embarked on their own perilous journeys through these troubled waters as is evidenced by intervenors' Exhibits 162 and 165, inclusive, and plaintiffs' Exhibits 255 and 256. Plaintiffs' Exhibit 254A and defendants' Exhibits 338 and 339, which are a part of plaintiffs' Exhibit 254A demonstrates to the satisfaction of the Court that roadside litter so far as it pertains to glass and tin containers comes from malt beverage and soft drink cans and bottles and not from other types of food and beverage containers which account for only a small portion of roadside litter. It is also informative as is seen in plaintiffs' Exhibit 106 that the buying habits of the citizens of Oregon are far different than his brother on the national market. For example, on the national market, popular priced malt beverages represent 61.7% of the market. In Oregon it is 91.21% of the market. On the national market, premium malt beverage represents 36.59% of the market but in Oregon premium malt beverage represents only 8.4% of the state market. Another significant fact, found in plaintiffs' Exhibit 107, is that returnable bottles on the national market represent 19.15%, while on the Oregon market returnable bottles represent 32.11%. It is the obvious conclusion that the Oregon consumer is more interest in the economy of his purchase than in its convenience than is his fellow citizen on the national market, and admittedly, the cheapest way to purchase on a per-ounce basis either a mait beverage or a soft drink is in a returnable container. It is the opinion of the Court that the Act, when judged by relevant constitutional standards, is valid in every respect and should be, and hereby is, sustained by the Court. This bold and forceful action taken by the Fifty-Sixth Legislative Assembly in 1971 reflects and is, I believe, a major response to the concern that the citizens in Oregon feel and have demonstrated concerning their environment and its pollution and the problems presented by roadside litter and disposal of solid waste and the Court would be illadvised to interfere in any manner in this timely and necessary endeavor. VAL D. SLOPER, Presiding Judge. 2 ELR 20642 | Environmental Law Reporter | copyright © 1972 | All rights reserved |