Appeal from the United States District Court for the Western District of Wisconsin. No. 94 C 603 -- John C. Shabaz, Judge.
Before BAUER, EASTERBROOK and RIPPLE, Circuit Judges.
In this appeal, a solid waste trade association and several Wisconsin landfill operators bring a Commerce Clause challenge against a Wisconsin statute. The statute forbids waste generators from using the State's landfills unless they generate waste in a region that has adopted an "effective recycling program," as defined by Wisconsin law. The district court, while striking down other sections of the statute, upheld the sections under review here. It reasoned that these sections did not discriminate against interstate commerce and that the local benefits outweighed the burdens imposed on interstate commerce. For the reasons that follow, we reverse and remand for further proceedings.
Over the last decade, fewer and fewer solid waste landfills have remained available in Wisconsin to dispose of a steadily increasing amount of waste. In response to this situation, Wisconsin enacted legislation designed to manage the flow of solid waste into its landfills. In relevant part, the statute bars individuals from disposing of eleven specifically enumerated recyclable materials in the State's solid waste landfills. Wis. Stat. sec. 159.07(3). *fn1 Thus, waste containing any of these items may not be dumped in the State.
The statute recognizes, however, an exception to this general prohibition. Under the exception, both in-state and out-of-state generators of solid, non-medical waste may send waste that contains quantities of the banned items to Wisconsin landfills if the waste is generated "in a region that has an effective recycling program as determined under [Wis. Stat.] sec. 159.11." See Wis. Stat. sec. 159.07(7)(a). *fn2 Section 159.11 of the statute initially provides that all such programs, whether for communities within Wisconsin or beyond its borders, are subject to approval by the Wisconsin Department of Natural Resources. Id. sec. 159.11(1). The statute then outlines the requirements of the "effective recycling program." First, each program must contain a "public education component" detailing reasons and opportunities for recycling, as well as prohibitions on dumping the eleven items referred to above. Id. sec. 159.11(2)(a). Effective recycling programs also must mandate that all of the community's single-family residences and commercial, retail, industrial, and governmental facilities engage in waste-reducing behaviors. Specifically, the statute mandates that these entities either separate the eleven listed materials from their waste or ensure that the waste is treated at a facility that will recover the materials prior to disposal. See id. sec. 159.11(2)(b). In addition, all owners of residential buildings containing five or more units, as well as owners of commercial, retail, industrial, and governmental facilities, must provide recycling containers for the occupants of the facility, must ensure that recyclables generated at the site are collected, and must regularly notify occupants of available recycling programs, unless waste from the site is treated at a materials recovery facility. See id. sec. 159.11(2)(c), (d). These requirements apply to all waste generators and facility owners in the community, irrespective of whether they, or, in the case of facilities, their occupants, actually dump waste in Wisconsin.
Enacting communities must meet several additional requirements. For example, the effective recycling program must establish systems for collecting separated recyclable materials from the region's single-family residences, id. sec. 159.11(e), as well as for processing and marketing the recyclables the community collects, id. sec. 159.11(em). The community must prohibit the disposal, in either a solid waste disposal or treatment facility, of any of the eleven listed items that have been separated for recycling. Id. sec. 159.11(2)(er). In addition, communities must adhere to any additional rules promulgated by the Wisconsin Department of Natural Resources. Id. sec. 159.11(2)(f). Every community also must provide for "[a]dequate enforcement" of the programs established under the statute, id. sec. 159.11 (2)(g), acquire all the equipment necessary to implement those programs, id. sec. 159.11(2)(h), and make a "reasonable effort" to reduce the "amount, by weight" of the eleven listed materials generated as solid waste in the region, id. sec. 159.11(2)(i). With respect to non-Wisconsin communities, the statute mandates that they comply with any recycling laws of their home state as well as with the requirements of the Wisconsin statute. Id. sec. 159.11(2e)(a). The statute directs the Wisconsin Department of Natural Resources to promulgate rules for comparing the programs of non-Wisconsin municipalities to Wisconsin municipalities or counties. See id. sec. 159.09(1). Areas of comparison must include the level of financing, enforcement mechanisms and effort, and the number of materials being separated and recycled. Id. sec. 159.11(2e)(b).
The most significant feature of the Wisconsin statute, for purposes of this case, is the requirement, discussed above, that all citizens in the effective recycling community must observe the statute's recycling provisions, whether or not they actually dump waste in Wisconsin. See id. 159.11(2)(b), (c), (d); see also id. sec. 159.11(2)(g) (obligating communities to establish effective enforcement provisions). With respect to out-of-state communities, the statute thus obligates every waste generator in a community with an effective recycling program to adhere to Wisconsin's standards, either by separating out recyclable materials or by sending waste to a materials recovery facility, even if their waste is intended for dumps in Illinois, Minnesota, or Iowa. Everyone in the community either must separate recyclables or must use a materials recovery facility in order for anyone to receive access to Wisconsin's landfills.
Appellants National Solid Wastes Management Association, Valley Sanitation Co., Land Reclamation Co., and Waste Management of Wisconsin, Inc. ("NSWM"), *fn3 challenged the Wisconsin solid waste legislation under the Commerce Clause and 42 U.S.C. sec. 1983. The district court accepted NSWM's argument in part, and held unconstitutional two portions of the legislation, R.61 at 14-16; Wisconsin has not appealed that decision. The district court held infirm the statute's "formal rulemaking" and "effective siting" requirements. The former provision mandated that the Wisconsin Department of Natural Resources approve non-Wisconsin communities' effective recycling programs via formal rulemaking. Wis. Stat. sec. 159.11(1) (1993). No such requirement applied to in-state communities. The latter provision barred Wisconsin landfills from accepting solid waste from any state unless the amount of new solid waste disposal capacity sited in that state during the past four years exceeded the amount of waste the state generated during that period. Id. sec. 159.12(3).
The district court rejected, however, NSWM's claim that Wisconsin's "effective recycling program" requirement violated the Commerce Clause. The court determined that the requirement was neither facially discriminatory, nor discriminatory in practical effect. Therefore, it evaluated the statute under the balancing test the Supreme Court set forth in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Because factual disputes existed concerning "the extent of the burden ...