superseded by statute on other grounds as recognized in Village of Carpentersville v. Pollution Control Board, 135 Ill. 2d 463 (1990)
How later courts described this case
- superseded by statute on other grounds as recognized in Village of Carpentersville v. Pollution Control Board, 135 Ill. 2d 463 (1990)
- “This court held [in Carlson] that the [IEPA] preempted local regulation” (emphasis added)
- rejecting challenge to municipal zoning ordinance
Written by the judges who cited it.
Later courts went against this
Superseded by statute, as recognized in Village of Carpentersville v. Pollution Control Board
75 Ill.2d 494, 27 Ill.Dec. 489, 389 N.E.2d 553, 557 (1979), superseded by statute on other grounds as recognized in Village of Carpentersville v. Pollution Control Bd., 135 Ill.2d 463, 142 Ill.Dec. 848, 553 N.E.2d 362, 367 (1990)).
The opinion
MR. JUSTICE UNDERWOOD, concurring:
I am not as certain as my colleagues that Metropolitan Sanitary District v. City of Des Plaines (1976), 63 Ill. 2d 256 , is so clearly distinguishable from this case. However, upon further consideration of the basic issue — whether and to what extent home rule units may legislate in environmental matters — I have concluded to join the opinion of the court.
Viewed against the background of the home rule issues reaching this court, the arguments of the late Professor David C. Baum, counsel to the constitutional convention’s Local Government Committee, are persuasive. He stated that “the question is not whether the ‘pertaining to . . .’ language should limit the home rule grant, but rather how extensive the limitation should be.” (Baum, A Tentative Survey of Illinois Home Rule (Part 1): Powers and Limitations, 1972 U. Ill. L.F. 137, 153, hereinafter referred to as Baum (Part I).) The more troubling question, to me, is the extent to which this court should, by its interpretation of the “pertaining to” language, determine the degree of limitation in view of the optional methods for doing so granted the legislature in sections 6(g) and (h). (Ill. Const. 1970, art. VII, secs. 6(g), (h).) Again, Professor Baum’s articulate arguments for the latter are persuasive.
“The difficulty with a preemption rule in Illinois is that the home rule section, section 6, was specifically designed to prevent invalidation of local ordinances from occurring in this manner by judicial interpretation. Sections 6(g) and (h) permit the legislature to limit or deny home rule powers by a three-fifths vote of each house, and to exclude home rule units from a subject area by specifically declaring that the state shall operate exclusively in that area. Apart from these two methods of legislative supervision, home rule units are supposed to be free to carry on activities that relate to their communities even if the state also is interested and is active in the area. This idea is expressed in section 6(i), which provides that ‘ [h] ome rule emits may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State’s exercise to be exclusive.’ To the extent that state regulation is held to invalidate local power under the ‘pertaining to . . .’ language of section 6(a), the purpose of section 6(i) is undermined and defeated.” (Emphasis in original.) Baum (Part I) at 154-55 (footnotes omitted).
Conceding that a flexible approach to the interpretation of section 6(a) had much to recommend it, Professor Baum continued:
“A flexible approach to the definition of those subjects that ‘pertain’ to the ‘government and affairs’ of home rule units might also help solve several difficult issues. *** Courts might subject home rule cities to the jurisdiction of the Pollution Control Board even though the General Assembly may fail to expressly require home rule units to comply with the board orders. Absent such a requirement passed pursuant to section 6(g) or 6(h), home rule cities might claim that pollution is their local concern, unless the courts rule that pollution is a matter of state concern outside of local ‘government and affairs.’ And finally, a flexible, court-determined definition of ‘government and affairs’ would be consistent with the treatment of home rule powers in other states.
But despite its many advantages, the flexible approach seems wrong. We should face squarely that section 6 grants broad powers to home rule units subject to restraints imposed primarily by the General Assembly either by a three-fifths vote or by a declaration of exclusive state jurisdiction under authority expressly reserved in sections 6(g) and 6(h). The language does not contemplate substantial restraint added by judicial interpretation; indeed, it was designed to make this interpretation difficult if not impossible. A judicial preemption doctrine based upon the existence of legislative regulation was specifically frowned upon.
The design of section 6 places great responsibility upon the legislature to ensure that home rule does not degenerate into provincialism which could injure the people of the state. This emphasis on legislative authority to limit home rule, plus the specification of ways in which the legislature must act to assert its authority, makes the Illinois home rule provision unique. Judicial limitations imposed on home rule in other states should not be very persuasive in Illinois because of our unique approach to the problem.
If the legislature does not perform its job, it is true that the people of the state may suffer. But that is, by and large, the fate mandated by section 6 of the Local Government Article. Certainly, the ‘pertaining to . . .’ language leaves some leeway for judicial intervention. But if the constitutional design is to be respected, the courts should step in to compensate for legislative inaction or oversight only in the clearest cases of oppression, injustice, or interference by local ordinances with vital state policies.” Baum (Part I) at 155-57 (footnotes omitted).
If we are to perform our duty to implement the constitutional design, responsibility for the intelligent control of home rule powers should, in the absence of substantially more compelling facts than are here present, be left where the Constitution placed it — with the General Assembly.