Anyway, where does this violate the constitution? Due Process: in 14A. Actually, maybe it's more equal protection. The court never bothers to tell us, and the connection to the constitution is vague at best. But 14A is vague as well, so maybe the fact that we can't say for sure which clause isn't such a big deal. Interesting that in practice, it doesn't matter, apparently.
There is a strong delegation argument here (legislative delegation of public power to private people is suspect), but the court says this isn't how they're going to handle it. There's a much more fundamental problem: no rational basis for the theory that the DNR should pay attention to local sentiment.
Recall Ferdon: a staute can not deny equal protection (and all statutes deny equal protection) unless there's a rational basis. Or, on due process grounds: a regulation will be tolerated if it has a rational basis (public health, safety, welfare, or morals). Anyway, what is inadequately rational about saying the DNR can consult local sentiment?
Well, the statute allows this, but the DNR guy says it was "prescribed" by the statute. So they could have just remanded it back for further consideration. But the court skips over that, and jumps right on to the constitution. Public sentiment is $whole_string_of_negative_adjectives (selfish, ignorant, biased), etc. That's rather interesting for a democratic system. So writing a letter to a public official = mob rule.
Remember that courts of appeal sometimes hear 2-3 cases a day, and they have to write opinions.
The two major Con Law I issues:
Not Con-Law I, but Con Law II: environmental racism. If the local community doesn't take the solid waste, it has to go someplace else. It'll eventually end up in the place where people are the least-equipped to fight it (i.e., w/o good political organization). Of course, if you exclude public input, the government will wind up wanting to put the thing in whatever area has the least political clout. So both sides can say the other is an environmental racist... maybe it cancels itself out.
Property (ownership, best use)
Environmentalism: experts say this is the best place for it. And the court is not going to like a result where the garbage just piles up on the curb. And it's economically rational to have the site here.
If Geo-Tech loses, they can offer incentives to the residents to change their opinions: it will be a park 20 years from now, we'll bargain for property tax credits, etc. But buying people off is expensive, and the price of getting rid of trash just went up. And if the price of getting rid of trash goes up, maybe people will make less of it. So there's an environmental up-side to this. So the cost of trash, if Geo-Tech wins is artificially low.
So how do you argue this to the court: if Geo-Tech implicates so many issues, you don't want to just shotgun them at the court-- you'll lose them. So a good lawyer, especially on appeal, knows the judges.
The state assistant AG represents WI: this is a chronic problem. Lots of AGs have very little appellate experience, and don't know how to argue. This may have been the case here: "WI doesn't have to give a reason; we're a democracy and the people know what they want." You nead reasons when you are arguing before SCOTUS. Lose. And there's also a reprimand: be prepared when you come before us.
Australia allows triple-bottoms, at night in rural areas. Sort of interesting.
Why can't Madison producers compete with Dean? Maybe Dean has mower costs of production; maybe Madison producers want to keep their prices high. Dean had just invented strawberry milk.
But maybe Madison had safety in mind. But there was some dreadful testimony from Madison's own witness, who averred that our ordinace was no safer than the Illinois one, and wished Madison would just adopt the model ordinance. But Madison had reason to be particularly touchy at the time: there was an outbreak of TB at the time, affecting children, and there was somewhat of a health panic, and improperly pasteurized milk is often a suspect. So this is the very bestest of all the reasons for local rule: self-protection. We also had a bad polio problem.
The "dormant commerce clause" is implicit in the ICC, but when we speak of ICC, we are talking about justification for federal power. Dormant is talking about state restrictions on interstate commerce.
Anyway, the court says Madison has options: passig along the charge of inspections, for example. Now that's kind of funny-- that too would be a violation of Interstate Commerce, because it would be discriminatory against out-of-state competitors. Sort of contradicts the rest of the opinion.
But it's not inter-state: it's also within the state. Anyone outside 25 miles gets the same discrimination. This is a city thing, not a state thing.
The dissent says Dean can move a plant to Madison. But that's clearly protectionist too! The whole point of the dormant commerce clause is for interstate commerce entities to put their stuff where it's efficient, not at the mercy of local lawmakers.
Majority: dormant commerce trumps safety. Dissent: safety trumps dormant commerce. Anyway, what's the cash value of preventing 50 children from getting TB. And anyway, the enforcer of dormant commerce policy should be congress (where everyone is represented), and not the court.
Just as in Dean Milk, this was overtly discriminatory against out-of-state stuff. That's what troubles the court, it seems.
Then, for irony's sake, it suddenly became cheaper to dump out of state. So Jersey says that Jersey companies have to dump in Jersey: they had built the sites, so they need to use them. Court says no, for the same reasons.
As it turns out, it was cheapest to haul Jersey waste to IN. And the trucks want to haul things back to Jersey, else it would be inefficient. But IN worries that people wont want IN products if they are hauled around in garbage trucks, so the trucks have to be super clean. No, says the court: you are just using this as a tactic to discourage people from trucking NJ waste to you.
But then other interests get added, once the bill makes it into the legislature. And the dairy farmers and the wood pulp people get the bill amended to require that milk containers be waxed cardboard. Say the plastic companies: this is just discrimination, and we have been railroaded. The environmentalists turned against the bill: cardboard containers are actually worse.
MN SC says this is terrible, and strikes it down on equal protection grounds (no rational basis for the law), not mentioning dormant commerce. SCOTUS says that was wrong, there are some benefits to cardboard containers, and MN SC erred. On the other hand, we can consider whether there are dormant commerce clause problems. And SCOTUS finds that the discrimination doesn't rise to the level of violating the dormant commerce clause.
So this suggests that states can pull of whatever they feel like, if they draft their statutes covertly enough.
This is another case of the court being quite far removed from what is going on in the case: the court says the towns are in NW WY, when in fact they are in NE WY. The court is not sure of the local geography. This suggests that the court is maybe out of touch with local concerns.
The MD scrap case is cited: subsidizing the collection of scrap cars. Out-of-staters showed up to get their bounty. But SCOTUS says that this was a government participating in the market: that's a new issue-- a state acting as a state in its own interests may protect itseld. So SCOTUS follows that ruling here.
A private company can sell its products wherever it pleases, and here the cement company is like a private company, competing with them and all, and this means it should be allowed to do whatever a private company should. Plus, this is what congress is for: it's not the court's province to say this is bad.
The MD scrap case is distinguished, in the sense that it was more about state spending (and the state's defining power is to tax and spend), whereas this is selling. On the other hand, ND did fund the construction of the cement plant. And the scrap case was environmental-- here there's no issue of that, and environmental protection is a classic state activity, deserving of a lot of leeway.
Hey! What about out-of-state tuition? Doesn't that discriminate against out-of-staters? Well, the UW is state-subsidized, and so WI deserves to get benefit out of it. States have to be allowed to protect their own in-state subsidies. But this is the production of cement, which is different.
Here's the thing, though: all states want to be protectionist, so we want to control that. At the same time, we'll allow it if it's not overt. Enforcement of dormant commerce clause interests is an imperative, but it won't trump each and every issue.
SCOTUS says read Reeves: this is a state deciding how to spend its money, which is allowed. But they're nervous about the implications. If states can always do this stuff, dormant commerce authority will lose all its teeth.
So maybe it violates the "provileges and immunities" clause, suggests the court.
MT, on the other hand, went to OPEC. MT wanted WY to form a consortium for this purpose. No dice, so MT goes it alone, and levies a high severance tax for coal bound out of state.
A lot of that coal comes off of federal land.