Wisconsin Solid Waste Recycling Authority v. Earl

• Decision Date: 25 November 1975
• Docket Number: No. 75--52,75--52
• Citation: Wisconsin Solid Waste Recycling Authority v. Earl, 70 Wis.2d 464, 235 N.W.2d 648 (Wis. 1975)
• Parties: WISCONSIN SOLID WASTE RECYCLING AUTHORITY, a Wisconsin public body corporate and politic, Petitioner, v. Anthony S. EARL, Secretary, Wisonsin Department of Administration, Respondent.
• Court: Wisconsin Supreme Court

Page 648

235 N.W.2d 648

70 Wis.2d 464

WISCONSIN SOLID WASTE RECYCLING AUTHORITY, a Wisconsin publicbody corporate and politic, Petitioner, v.Anthony S. EARL, Secretary, Wisonsin Department of Administration, Respondent.

No. 75--52.

Supreme Court of Wisconsin.

Nov. 25, 1975.

Quarles & Brady, Milwaukee, for petitioner; Laurence C. Hammond, Jr., Michael J. Spector and Ronald E. Klipsch, Milwaukee, of counsel.

Godfrey & Kahn, S.C., Milwaukee, for respondent; Joseph M. Bernstein, William H. Alverson and James Ward Rector, Milwaukee, of counsel.

WILKIE, Chief Justice.

This action calls for a declaration of rights in regard to the Wisconsin Solid Waste Recycling Authority enactment of the 1973legislature.We affirm the constitutionality of that legislation and order an injunction issued directing Anthony S. Earl, Secretary, Wisconsin Department of Administration, to honor petitioner's request for funds implementing this legislation.

In this declaratory judgment action, the petitioner, the Wisconsin Solid Waste Recycling Authority, seeks a declaration that:

1.The Authority is a public body corporate and politic legally and validly created and existing pursuant to ch. 305, Laws of 1973; that all notes and bonds issued by the Authority in accordance with applicable procedures are valid and enforceable obligations of the Authority; and that the purposes to which the proceeds of the Authority's debt may be applied are lawful purposes.

2.The provisions of the Act are consistent with all provisions of the Wisconsin and United States Constitutions; and

3.The Secretary is legally obligated to issue a warrant for the $500,000 appropriated to the Authority by secs. 2and3 of the Act.

The basic facts are all stipulated by the parties.In February of 1972, in response to a request from the governor, a Recycling Task Force submitted a feasibility report which was followed in May of 1973 by a predesign engineering report, both of which reports reports included recommendations and possible plans for a solid waste recycling program for the state.The Task Force and the Board of Engineering Consultants which authored the predesign report, found, among other things, that waste quantities are rapidly increasing.For example, waste quantities (exclusive of agriculture and mining wastes) for the entire state are estimated at 12,825 tons per day in 1975, and 17,200 tons per day in 1985.Further, disposal costs are increasing and disposal sites are more difficult to obtain.The Board report includes information (based on a report made to Congress by the Environmental Protection Agency) that if recycled materials were used in the production of steel, for example, there could be a 90 percent reduction in the amount of virgin materials consumed, a 40 percent reduction in the amount of water used, a 74 percent reduction in energy consumed, an 86 percent reduction in air pollution, and a 76 percent reduction in water pollution.

The legislature responded to the recommendations of the Task Force, Board, and governor by enacting ch. 305, Laws of 1973(hereinafter the Act), effective June 19, 1974, creating and granting powers to the Wisconsin Solid Waste Recycling Authority.The Act is an additional step in a series of determinations by the legislature that the problems of solid waste and environmental control are matters of statewide concern which deserve legislative attention.This attention was evidenced by the authority given to the Department of Natural Resources by ch. 83, Laws of 1967, to implement a program of solid waste management, by secs. 59.07(135)and144.435, Stats., giving counties the power to establish solid waste management plans, and by the Wisconsin Environmental Protection Act, sec. 1.11.

According to the stipulated facts, the basic outline of the provisions of the Act is as follows:

'A.Organization.

'The Authority is a 'public body corporate and politic' consisting of seven members appointed by the Governor with the advice and consent of the Senate for stagered six-year terms.One member must be recommended by the County Boards Association, one member by the League of Municipalities and a third member by the Towns Association.The Authority may not employ more than 40 persons.No law terminating the existence of the Authority shall take effect while the Authority has obligations outstanding.The Authority has a continuing legislative appropriation of $500,000 for general program operations.This appropriation is to be repaid to the State general fund from the Authority's surplus, if any, as is determined pursuant to agreement between the Authority and the Secretary.The annual administrative costs for the Authority shall not exceed $600,000.SeeSections 2and3, Chapter 305andSections 499.02,499.073,499.335, Wis.Stats.

'B.General Jurisdiction and Limitations.

'As set forth in Section 499.07, the Authority has all powers necessary or convenient to carry out and effectuate the purposes of the Act, including without limitation, the power to adopt and publish rules, to coordinate all solid waste recycling activities within recycling regions, to sell or market the products and by-products of recycling facilities, to acquire, construct, develop and operate recycling facilities, to conduct necessary hearings and investigations and to appoint state and local advisory councils.The Authority has no jurisdiction or power to collect or purchase solid wastes.In general, it can accomplish its purposes through virtually any type of contractual arrangement with private persons or other public entities, as well as through its own personnel, subject in some but not all cases to competitive bidding requirements.The Authority is required to utilize private industry to the maximum extent feasible to perform planning, design, management, construction, operation, manufacturing and marketing functions related to solid waste disposal and recycling and to assist in the development of industrial enterprise based on recycling.

'No person may acquire, construct, alter, reconstruct or operate a municipal solid waste recycling facility within a region established by the Authority without prior consultation with the Authority.Facilities owned or used by the Authority are exempted from all municipal ordinances except zoning ordinances.The Authority has no jurisdiction with respect to solid waste disposal or recycling facilities in areas of the state outside the regions then established by the Authority.

'The Authority is required to afford municipalities cooperation in the transition from municipal management of solid waste to recycling in regions which are established by the Authority, and is required to provide assistance to the Department of Local Affairs and Development and the DNR in carrying out their statutory responsibilities under Section 144.435.Further, upon establishment of operating facilities in regions established by the Authority, the Authority is required to purchase certain municipal solid waste disposal facilities upon offer by a municipality.

'The Board of Engineering Consultants estimated that the total capital costs of a state-wide program of regional recycling systems would be approximately $120,000,000, in terms of 1973 dollars.

'The actions and activities of the Authority and its contractors must conform to policies and rules of the DNR.The Authority's user rates, charges and rentals are subject to approval by the Public Service Commission.In addition, the Authority is required to consult with the Wisconsin Building Commission prior to constructing any solid waste recycling facilities or contracting for the use of private solid waste recycling facilities; is required to obtain the approval of the Secretary for its system of accounts; and is required to provide a semiannual report to the Joint Committee on Finance and an annual report to the Governor, the Chairman of the Joint Committee on Finance and the Secretary.Such annual report will describe the Authority's operations and accomplishments, income and expenses, recycling costs as compared to non-recycling disposal costs and the extent to which materials recovered alleviated shortages or reduced demands on virgin or irreplaceable raw materials, contributed to an energy balance, and improved the environment.Such report shall also contain the Authority's suggestions as to legislation and other measures to reduce the volume of solid waste generated in Wisconsin.

'See generallySections 9,10, Chapter 305;Sections 499.01(3), (8),10,499.03,499.07(1), (5), (8), (14), (20), (21), (24)--(30),499.075,499.08,499.085--.087,499.09,499.12--.13,499.15,499.19--.20,499.40,499.45.

'C.Authority Bonds.

'The Authority is authorized to incur debts and to issue notes and bonds to, among other things, meet the cost of acquiring, constructing, improving or extending solid waste recycling facilities.SeeSections 499.07(12), (13), (14),499.25.The notes and bonds of the Authority may be sold by the Authority at public or private sale at the price determined by the Authority.SeeSections 499.26 and .27. However, the Authority shall not have outstanding at any one time notes and bonds for any of its corporate purposes in an aggregate principal amount exceeding $16,500,000, and must consult with and coordinate the issuance of bonds with the State Bond Board prior to the issuance of any bonds.SeeSection 499.34.

'The Act states that notes and bonds of the Authority are obligations of the Authority only.It specifically provides that the state shall not be liable on the Authority's notes and bonds, that such notes and bonds shall not be a debt of the state, and that all of the Authority's notes and bonds shall contain a statement to such effect on the face thereof.SeeSection 499.31.In Section 499.35, the state has pledged to the holders of any notes or bonds issued by the Authority that the state will not limit or alter the rights...