Waste Management of Wisconsin, Inc. v. State of Wis. Dept. of Natural Resources
| Decision Date | 16 June 1988 |
| Docket Number | No. 85-1486,85-1486 |
| Citation | 424 N.W.2d 685,144 Wis.2d 499 |
| Parties | WASTE MANAGEMENT OF WISCONSIN, INC., a Wisconsin corporation, Petitioner-Appellant-Petitioner, v. STATE OF WISCONSIN DEPARTMENT OF NATURAL RESOURCES, Respondent, Troy Area Landfill, Inc., a Wisconsin corporation; Village of East Troy, a municipal corporation; James D. Hough, Maxine M. Hough, Vivian D. Conley, Ranson S. Blanchard, Adrienne L. Blanchard, Joe Lawlor and Marie Lawlor, a/k/a Local Property Owners Group, Interested Parties, TOWN OF EAST TROY, a municipal corporation; Village of East Troy, a municipal corporation; James D. Hough, Maxine M. Hough, Vivian D. Conley, Ranson S. Blanchard, Adrienne L. Blanchard, Joe Lawlor, and Marie Lawlor, a/k/a Local Property Owners Group, Petitioners, v. STATE OF WISCONSIN DEPARTMENT OF NATURAL RESOURCES and Bureau of Solid Waste Management, Respondents. |
| Court | Wisconsin Supreme Court |
John D. Finerty, William S. Roush, Jr. (argued), and Friebert, Finerty and St. John, S.C., Milwaukee, for petitioner-appellant-petitioner.
Mary Ann Sumi, Asst. Atty. Gen. (argued), for respondent; Donald J. Hanaway, Atty. Gen., on brief.
This case comes to us on petition of Waste Management of Wisconsin, Inc., to review an unpublished decision of the court of appeals. 1 In that decision, the court of appeals affirmed the order of the circuit court for Walworth county, James L. Carlson, circuit judge, dismissing Waste Management from the action on the ground that Waste Management had no standing to contest a Department of Natural Resources (DNR) determination of need which authorized an economic competitor, Troy Area Landfill, Inc. (Troy), to open and operate a landfill facility. We affirm the decision of the court of appeals.
The case arose in 1982, when Troy applied to the DNR for approval to construct a landfill in the Village of East Troy. The DNR, acting under the procedures set forth in ch. 144, Stats., made a determination of feasibility and of need for the site. As part of these procedures, the DNR considered petitions brought by the Town of East Troy, the Village of East Troy, a Local Property Owners Group, and Walworth county. The DNR held a contested case hearing on the determination of feasibility in 1983 and, in 1984, on the determination of need. Waste Management was added as an interested party for the need hearing. 2
In the need hearing, Waste Management argued that, for Troy to meet its projected loading target of 600 tons of solid waste a day, it would have to accept trash from an area already being serviced by Waste Management's landfills, which would result in trash being diverted to Troy from the Waste Management sites, thus causing economic harm to Waste Management. Waste Management also argued that, to attract disposal of trash over such a long distance (more than twenty miles), Troy would have to charge unrealistically low gate fees, a situation which could not be maintained for long. Thus, Waste Management's argument was that Troy would be unable to meet its projected loading target of 600 tons per day. 3
The result of these hearings was that on April 4, 1985, the DNR issued a determination both that the site was feasible and that there was a need for the site. The determination considered Waste Management's concern that Troy might not be able to sustain the low gate fees it projected, but nevertheless, the DNR allowed the site development to proceed.
On May 1, 1985, the Town of East Troy, the Village of East Troy, the Local Property Owners Group, and Walworth county brought a circuit court action to review this determination. This action for review in the Walworth county circuit court is still pending. On May 6, 1985, Waste Management brought a separate action under ch. 227, Stats., in the Milwaukee county circuit court. Under sec. 227.16, Stats. (1983-84), that action was transferred to Walworth county and consolidated with the other petitioners' action. The controversy underlying this review arose when the circuit court for Walworth county, on the DNR's motion, dismissed Waste Management from the action for lack of standing.
Although standing cases have the potential to be both complex and difficult to resolve, this case is neither. No constitutional standing issue is raised here. Instead, the issue presented for our review is the statutory question of whether, under secs. 227.15 and 227.16(1), Stats. (1983-84), 4 sec. 144.44(2)(nm), operates to grant standing to Waste Management to maintain a suit challenging the DNR's affirmative determination of need for Waste Management's economic competitor, East Troy Landfill.
Waste Management's position in the circuit court, in the court of appeals, and now in this court, is that it has standing to challenge the DNR's determination of need for the East Troy landfill because this landfill will siphon business from Waste Management's already existing landfill facilities, thus causing Waste Management an economic harm. In this court, Waste Management also contends that it should have standing because its interests are within the protected zone of environmental interests regulated by ch. 144, Stats.
In the past, we have stated a two-part test for determining whether a party has standing under secs. 227.15 and 227.16, Stats. (1983-84) (now secs. 227.52 and 227.53.) In Wisconsin's Environmental Decade, Inc. v. Public Service Comm., 69 Wis.2d 1, 230 N.W.2d 243 (1975) (WED I ), this court stated:
This two-step analysis requires that, to have standing, the petitioner demonstrate both that it sustained the alleged injury due to the agency decision, and that the injury is to an interest which the law recognizes or seeks to regulate or protect. In this case, the DNR's determination of need was a necessary condition precedent for Troy's operation. Therefore, Waste Management's injury, if any, stemmed directly from the DNR's decision to allow Troy to proceed with its landfill, and the first step of the two-part standing analysis is satisfied.
Turning first to Waste Management's economic argument, Waste Management argues that, because it will suffer an economic hardship, it meets the requirements under secs. 227.52 and 227.53, Stats., as a "person aggrieved." In support of this contention, it relies on State ex rel. the First National Bank of Wisconsin Rapids v. M & I Peoples Bank of Coloma, 95 Wis.2d 303, 290 N.W.2d 321 (1980), in which this court held that, under the quo warranto statute (now sec. 784.04), only a "slight interest" was necessary to confer standing. 95 Wis.2d at 313, 290 N.W.2d 321. Arguing further that this court has incorporated the quo warranto standard into ch. 227 proceedings, Waste Management concludes that only a slight showing of injury is necessary to qualify it as a person aggrieved.
This argument misses the mark. First, and most obviously, this argument goes to the question of degree of injury necessary to confer standing. As such, it goes to the first part of the two-part standing analysis: Whether the party suffered an "injury" as a result of the agency decision. In this case, however, the dispositive question arises under the second part of the two-part standing analysis: Whether the injury is of a type recognized, regulated, or sought to be protected by the challenged law. See WED I, 69 Wis.2d at 10, 230 N.W.2d 243. Thus, even if we were to agree that a slight injury, as defined in the quo warranto context, were sufficient to confer standing under ch. 227 as an injury, this is irrelevant to the question of whether such injury is of the type protected by the law challenged in this case (i.e., the substantive provisions of sec. 144.44(2)(nm)). Waste Management mistakenly advances a doctrine directed at magnitude of injury in an attempt to meet a requirement directed at nature of injury.
Because this argument is mistaken, we need not reach the second portion of this argument, and accordingly do not address the contention that this court's holding in First National Bank, made in the quo warranto context, should be applicable to the ch. 227 administrative procedure.
Turning to the dispositive question, as stated above under the two-step analysis employed in these cases, the controlling issue is whether the economic injury which Waste Management alleges it will suffer is an injury to an interest of a type recognized, regulated, or sought to be protected by sec. 144.44(2)(nm), Stats.
To apply this second part of the two-step standing analysis--whether the injury is to an interest which is protected by the law--we must examine sec. 144.44(2)(nm), Stats., 5 the law the DNR was applying in making the determination of need. This subsection sets forth the matters which the DNR must consider before determining that there is a need for the new proposed site. The legislative mandate which this scheme embodies is that determinations of need should not be made in the absence of findings of relevant facts. Toward this end, the DNR is required to examine already existing facilities.
In its determination of need for the East Troy landfill, the DNR demonstrated its understanding of how this statute operates. The DNR examined the...
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