NSWMA Challenges Wisconsin Law

A state may block incoming shipments of solid waste destined for local landfills if the waste originates in a community without an effective recycling program, according to a Wiscon-sin federal district court ruling. (National Solid Wastes Management Association, et al. v. Meyer, No. 94-C-603-S, W.D. Wis.)

Five years ago, Wisconsin passed a solid waste management law that, in part, ad-dressed the flow of solid waste into its landfills. A key portion of the law forbids the disposal of certain recyclable materials. The ban, however, does not apply to any local government unit that has an "ef-fective recycling program," which state law defines as a mandatory recycling program for all generators and entities.

The legislation gives state environmental officials responsibility for im-plementing the law. In particular, the state's Department of Natural Resources reviews local government recycling programs to determine whether they conform with state standards. Although the characteristics of an "effective" program are the same for in-state and out-of-state municipalities, the approval process for non-Wisconsin municipalities is more cumbersome and in-volves a public hearing.

Wisconsin law also bans the landfilling of out-of-state solid waste un-less the waste-generating state has an "effective siting program." As a result, the state of origin must prove that during the past four years it has arranged for new solid waste disposal capacity that exceeds the amount of waste generated in that time.

In August 1994, the National Solid Wastes Manage-ment Association (NSWMA) and three of its members challenged several provisions of Wisconsin's solid waste law in a federal lawsuit. They claimed that the provisions violated the U.S. Constitution by discriminating a-gainst interstate commerce.

The plaintiffs argued that the effective siting provision and the additional procedural requirements for out-of-state localities overtly discriminated against interstate commerce and that the effective recycling provisions discriminated in practice. As the plaintiffs saw it, the state had less burdensome ways to remove recyclables from the waste stream entering Wisconsin landfills.

The state defended the law, contending that it was neutral toward interstate commerce and that any burdens upon commerce were fully justified by the state's legitimate interest in preserving landfill space and protecting its environment.

U.S. District Judge John C. Shabaz said the case il-lustrated "the ongoing tension between a state's interest [in protecting] its environment and [preserving] scarce local re-sources and the nation's interest ... [in preserving] the free flow of commerce."

The judge ruled that the effective recycling program did not discriminate a-gainst interstate commerce because all local governments - in-state and out-of-state - needed a mandatory recycling program before sending solid wastes to Wisconsin landfills.

Judge Shabaz also ruled that the recycling requirement did not economically favor in-state interests at the expense of out-of-state business. On the contrary, he said, the "overall effect of [the law] is to impose a burden upon [Wiscon-sin] residents which is equal to or greater than the burden imposed upon out-of-state consumers."

In fact, the statute had greatest impact on Wisconsin service pro-viders, including the three corporate plaintiffs who own landfills in Wis-consin and who profit from disposal services for wastes generated out-of state, the judge noted. Indeed, "the effect of the [law] will be to benefit plaintiffs' out-of-state competitors who may gain ... business at the ex-pense of the Wisconsin providers."

However, the court struck down two of the law's provisions that ex-clusively affected out-of-state interests: the formal rule-making process and the effective siting requirement, which he called "facially discriminatory" against interstate commerce. As for the legality of the recycling measure and its impact on interstate commerce, he allowed both sides to present evidence.

Over a two-day period, the court heard testimony as to whether the effective recycling program requirement imposed a burden on commerce that was "clearly excessive in relation to the putative local benefits."

After considering all the evidence, the court ruled that Wisconsin's effective recycling program did not violate the Commerce Clause. The court found that the law im-posed a small burden on interstate commerce - as far as the volume of waste and the costs imposed on out-of-state consumers, generators and communities. In-cidentally, the plaintiffs did not dispute that Wisconsin had a legitimate interest in reducing the flow of recyclable materials into its landfills. Finally, Judge Shabaz determined that the state could not achieve such benefits as effectively by using an alternative with less im-pact on interstate commerce.

NSWMA is appealing the case. A decision by the ap-pellate court is due soon.