Valstad Ex Rel. Valstad Quarry, Inc. v. Cipriano

JUSTICE APPLETON, dissenting:

I respectfully dissent from the majority’s decision. For no apparent reason, the classification in section 12.5(e) of the Act excludes agricultural point sources. See 415 ILCS 5/12.5(e) (West Supp. 2003).

A classification can violate the uniformity clause by being either overinclusive or underinclusive. Allegro Services, 172 Ill. 2d at 250, 665 N.E.2d at 1251. If the legislature excludes persons from the class that must pay a “non[-]property tax[ ] or fee[ ]” (Ill. Const. 1970, art. IX, § 2), the legislature must have a legitimate reason for doing so. The persons excluded must be different, in some material way, from the persons included. Searle Pharmaceuticals, Inc., 117 Ill. 2d at 478, 512 N.E.2d at 1250.

In their brief, plaintiffs repeat the observation they made in their complaint: that not all holders of NPDES permits have to pay discharge fees. The amici cite animal feeding operations as an example, and in their reply brief, plaintiffs repeat that example. Animal feeding operations are point sources, and if they meet the criteria in the agency’s regulations, they need an NPDES permit. 35 Ill. Adm. Code §§ 502.101 to 502.106 (Conway Greene CD-ROM June 2003). The same holds true for livestock waste-handling facilities (35 Ill. Adm. Code § 502.205 (Conway Greene CD-ROM June 2003)), livestock management facilities (35 Ill. Adm. Code § 502.205 (Conway Greene CD-ROM June 2003)), fish farms (35 Ill. Adm. Code § 503.101 (Conway Greene CD-ROM June 2003)), and irrigation activities (35 Ill. Adm. Code § 503.102 (Conway Greene CD-ROM June 2003)). Although the legislature purports, in section 12.5(a), to create a class consisting of “all discharges that require an NPDES permit” (emphasis added) (415 ILCS 5/12.5(a)(i) (West Supp. 2003)), the actual fee schedule in section 12.5(e), which lists the types of point sources and the amounts each must pay, makes no mention of agricultural point sources. Animal feeding operations, for example, are not on the list in section 12.5(e). Therefore, unlike mines, storm sewer systems, and other assorted point sources, they need not pay for a discharge permit. See 415 ILCS 5/12.5(e) (West Supp. 2003).

I can find no legitimate reason for excluding agricultural point sources from the NPDES permit fee. According to section 11(a)(1) of the Act, all water pollution exacts a societal cost. It threatens people and wildlife, depresses property values, reduces opportunities for recreation, and offends the senses. 415 ILCS 5/ll(a)(l) (West 2002). Ultimately, all of these effects of water pollution harm the public fisc by making the state a less desirable place for tourism or habitation.

A pollution tax (which is what the discharge “fee” predominantly is) “forces emitters to pay for (and thereby internalize) the pollution they create.” J. Barrett, The Global Environment and Free Trade: A Vexing Problem and a Taxing Solution, 76 Ind. L.J. 829 , 843 (2001). Also, “market-based instruments,” such as pollution taxes, “provide dynamic incentives for the adoption and diffusion of cheaper and better [pollution-]control technologies.” N. Keobane & R. Revesy, The Choice of Regulatory Instruments in Environmental Policy, 22 Harv. Envtl. L. Rev. 313 , 314 (1998). If municipal sewage systems must pay for a permit to discharge human waste into the waters of our state (415 ILCS 5/12.5(e)(2) (West Supp. 2003)), even treated human waste (415 ILCS 5/12.5(e)(l) (West Supp. 2003)), animal feeding operations should have to pay to discharge animal waste, which is surely just as harmful to the environment and just as offensive to the senses. If sewage plants must internalize their pollution, so should animal feeding operations.

Animal feeding operations are, of course, different from municipal sewage systems in many ways, but these differences are all “fortuitous” (see Grasse v. Dealer’s Transport Co., 412 Ill. 179, 196 , 106 N.E.2d 124, 133 (1952)). One cannot defeat the uniformity clause in this case simply by observing that, unlike the point sources listed in section 12.5(e), animal feeding operations are agricultural. All owners of point sources that must pay for NPDES permits could make a comparable observation regarding themselves. For example, factories could say they are industrial. See 415 ILCS 5/12.5(e)(5) (West Supp. 2003). Publicly owned sewage treatment plants could say they are governmental. See 415 ILCS 5/12.5(e)(1), (e)(2) (West Supp. 2003).

Mines could say they are mines. See 415 ILCS 5/12.5(e)(3), (e)(4) (West Supp. 2003). If the class, by definition, consists of a diverse assortment of point sources united only by their status as NPDES permittees, one cannot logically exclude animal feeding operations because of the nature of its enterprise.

While this issue is not fully developed by the parties, I am also troubled by the exclusion of non-point-source discharges from the application of a tax-generating fee, which is designed by the state to help support the overall operation of the Illinois EPA. However, because certain point sources are excluded from the obligation to pay the tax, I would find, based upon that alone, the fee at issue fails to be consistent with the constitutional prescription of uniformity.