Respondents Brief — Minnesota v. Clover Leaf Creamery Co.

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0 ye eS

Supreme Court, U. S,

FILED

No. 79-1171 AUGS5 1980

JR. CLERK

IN THE

Supreme Court of the Gnited States

October Term, 1979

STATE OF MINNESOTA,

Petitioner,

vs.

CLOVER LEAF CREAMERY COMPANY, PHILLIPS

PETROLEUM COMPANY, MARIGOLD FOODS, INC.,

UNILOY DIVISION OF HOOVER UNIVERSAL, INC.,

WEBER & BARLOW STORES, INC., THE SOCIETY OF

THE PLASTICS INDUSTRY, INC., WELLS DAIRY, INC.,

and M-H PACKAGING SYSTEMS, INC.

Respondents.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF MINNESOTA

BRIEF FOR RESPONDENTS

LEONARD J. KEYES

Counsel of Record

DOUGLAS L. SKOR

ANDREA M. BOND

BRIGGS AND MORGAN

2200 First National

Bank Building

Saint Paul, Minnesota 55101

(612) 291-1215

Attorneys for Respondents

224-7631 — Review Publishing Co., 287 E. 6th St., St. Paul, Minn. 55101 — 224-7631

QUESTIONS PRESENTED

1. Did the Minnesota Supreme Court correctly hold that

a statutory ban on the sale of milk in nonreturnable, nonre-

fillable plastic containers violates the Equal Protection Clause

of the Fourteenth Amendment to the United States Constitu-

tion?

2. Does a statutory ban on the sale of milk in nonreturn-

able, nonrefillable plastic containers discriminate against or

unreasonably burden interstate commerce in violation of

Article I, Section 8 of the United States Constitution?!

1This question was not decided by the Minnesota Supreme Court

and is therefore not raised by the petitioner. It was included in

the Complaint, decided by the trial court, fully briefed and argued

before the Minnesota Supreme Court, and asserted in respondents’

brief in opposition to the State’s petition for certiorari. Respon-

dents may therefore assert it in support of the judgment of the

Minnesota Supreme Court, and it is appropriate for this Court

to decide this question if it does not invalidate the statute on

equal protection grounds. New York City Transit Authority v.

Beazar, 440 U.S. 568, 582 n.24 (1979); Hankerson v. North Caro-

lina, 482 U.S. 233, 240 n.6 (1977); California Bankers Ass’n. v.

Schultz, 416 U.S. 21, 71 (1974); Dandridge v. Williams, 397 US.

471, 475 n.6 (1970).

The Minnesota Supreme Court concurred with the trial court’s

determination that the statute also denies substantive due process

of law but did not decide this question directly. (A. 45 n.20.)

(References to “A.——” are to pages of the joint Appendix.)

TABLE OF CONTENTS

ah ae che sare

ES a I a

a waa vk ck wwe wl

nk oil bs dines ce aww seas

i. ee ane eee aes

I. The Evidence Supports the Findings of the Minne-

sota Courts that there is no Factual Basis for

Banning the Plastic Milk Container ..........

The purpose of Chapter 268 was not to protect

the environment, but to protect and isolate

local private economic interests ............

The plastic milk bottle has been widely used in

Minnesota for years .....................

The Act will not encourage or promote a re-

turn to the use of refillable containers .....

The Act will not aid in the management or

control of solid waste. It will aggravate the en-

vironmental problems caused by solid waste .

IS ASRS a

a. Leachates and methane gas.........

b. Landfill stability ..................

c. Compaction of solid waste .........

2. Incineration ........................

PREVIOUS PAGE WAS BLANK j

II.

III.

3. Recpilias ete ted ee

i I Oe i wns eee se ve

G.. WOOe SOCIO kine ee i wn.

The Act will not aid energy conservation ..

The Act will not lessen the consumption of

Other environmental factors further demon-

strate the superiority of the plastic bottle ..

The Act Denies Plaintiffs Equal Protection of the

REED Wt Sh ACER RCS 0S oe lg Girne Parnes AO Bot

I ae a ar ee ie ee ee ee er er pre ae a pt

Even if the purpose of the Act were among the

purposes stated in its preamble, the classifica-

tion contained in the Act is not rationally re-

lated to furthering any stated purpose ....

The Act Imposes Unconstitutional Burdens on

interatate Commerce ..............se.004.

The Act is invalid as a tool of economic protec-

SN eR ray Cee ei cas to be

The Act imposes burdens on interstate com-

merce that outweigh its putative benefits

EG tl ATE LEI gE vel A SAL seo CSG ee CEE OS ee

TABLE OF AUTHORITIES

Federal Cases:

Aberdeen & Rockfish R. Co. v. SCRAP,

ee I Og cigs Ve cycle ee Woh oe ven

Bachellar v. Maryland, 397 U.S. 564 (1970) ........

Baldwin v. G.A.F. Seelig, Inc.,

Sd ie iN oles lres’ 3% 29,

Bantam Books, Inc. v. Sullivan,

ee I ee rs acWevin eee ees

Berenyi v. District Director, Immigration and

Naturalization Service, 385 U.S. 630 (1967) ....

Bibb v. Navajo Freight Lines,

RIE rea a

Borden’s Farm Products Co., Inc. v. Baldwin,

SO es ria t's Woes eae ew wr eos

California Bankers Ass’n. v. Schultz,

de wk ily ws Gaee ecucdacal Fa,

Cities Service Gas Co. v. Peerless Oil and Gas Co.,

I EE MI gt eS ee egy Wie

City of New Orleans v. Dukes,

EL CU rh ce A Uk ed bs ay

Dandridge v. Williams, 397 U.S. 471 (1970) ......

Dean Milk Co. v. City of Madison,

ee EY I ss a faa pat da wu ew

Exxon Corp. v. Governor of Maryland,

ee te as

Gallegos v. Nebraska, 342 U.S. 55 (1951) .........

General Motors Corp. v. Washington,

ee se ens Wa etn

Great Atlantic and Pacific Tea Co., Inc. v.

Core, Gee Um. See CRUTE) ... 6... eee. 4,

i) |

H. P. Hood & Sons, Inc. v. DuMond,

ee OF eee ar et 35, 37

Hankerson v. North Carolina,

Pt OR s,s SR Ae eran, rs earn i

. Hicklin v. Orbeck, 487 U.S. 518 (1978) ........... 34

Hughes v. Oklahoma, 441 U.S. 322 (1979) ........ 29, 32

Hunt v. Washington State Apple Advertising

Commission, 432 U.S. 3383 (1977) ....... 29, 32, 33, 37

' Lewis v. BT Investment Managers, Inc.,

260 B.Ce. BOD Ca ei ee Ay 29, 31, 36, 37

McGowan v. Maryland, 366 U.S. 420 (1961) ...... 25

Minnesota v. Planned Parenthood of Minnesota,

48 U.S.L.W. 3846 (June 24, 1980) ............. 25

New York City Transit Authority v. Beazar,

Bi eS 8. . Reese yy tree Ae i

New York Times Co. v. Sullivan,

ee ie Me MU ss Ge a cc a ee a hn SA 5

Pennsylvania v. West Virignia,

ee Wek ee Gee eee 32

Philadelphia v. New Jersey,

ee Ua Gee Ge os oe See be 29, 31, 32, 35

Pierre v. Louisiana, 306 U.S. 354 (1939) ......... 5

Pike v. Bruce Church, Inc.,

SOs Wan. SOE Wee 6 st ree 36

Polar Ice Cream and Creamery Co. v. Andrews,

oe Oe er ee ees: 29

Railway Express Agency, Inc. v. New York,

> Se 8. eee” = |e ee

Raymond Motor Transportation, Inc. v. Rice,

aS Se OB I ee eres es nc 37

Reeves, Inc. v. Stake, 48 U.S.L.W. 4746

i rr oily We ek mo Ree 32

Rinaldi v. Yeager, 384 U.S. 305 (1966) ........... 25

Southern Pacific Co. v. Arizona,

RS MU TI nt ee Ee ae ahs 37

United States v. Carolene Products Co.,

ee ioc eo! i dev vaca a me 26

Vance v. Bradley, 440 U.S. 93 (1979) ............ 24

Weinberger v. Wiesenfeld,

ee Sn SI Go ed Ew Lc wate o ee 0% 22

West v. Kansas Natural Gas Co.,

en oan nent wa bie 32, 36

Williamson v. Lee Optical Co.,

ee ee ec we CN 27

State Cases:

American Can Co. v. Oregon Liquor Control

Commission, 15 Or. App. 618, 517 P.2d 691 (1973). 17

Anchor Hocking Glass Corp. v. Barber,

118 Vt. 206, 105 A.2d 271 (1954) .............. 17

Can Manufacturers Institute, Inc. v. Minnesota,

289 N.W.2d 416 (Minn. 1979) ................ 17, 33

Juice Tree of Hawaii, Inc. v. Yuen,

18 E.R.C. 1888 (Hawaii Cir. Ct. 1979) ......... 17

Statutes and Rules:

i eo ieiusiiavissas 22

A ss vs br kn unas dene. 22

ee ig . 16

TS er 33

vii

Page

Secondary Authorities:

Bennett, “Mere” Rationality in Constitutional Law:

Judicial Review and Democratic Theory, 67 Calif. L.

Be ES tae ie ee le ties owes 25

L. Tribe, American Constitutional Law (1978) ...... 33

Note, State Environmental Protection Legislation

and the Commerce Clause, 87 Harv. L. Rev. 1762

PE ae eke ie he A at Ae ee ta aes is 35

Plastic Bans, Bottle Bills and Comprehensive

Container Legislation: Packaging Laws Get Mixed

Reviews in State Courts, 9 Environmental Law

Reporter 10196 (Nov. 1979) ............40.5.5. 33

Strong, The Persistent Doctrine of ‘Constitutional

Fact’, 46 N.C.L. Rev. 228 (1968) .............. 5

oe eg. ee er ee . 86

ey ee ae GU CRE ca. ra ok ew ee ees 19

viii

IN THE

Supreme Court of the Gnited States

October Term, 1979

No. 79-1171

STATE OF MINNESOTA,

Petitioner,

vs.

CLOVER LEAF CREAMERY COMPANY, PHILLIPS

PETROLEUM COMPANY, MARIGOLD FOODS, INC.,

UNILOY DIVISION OF HOOVER UNIVERSAL, INC.,

WEBER & BARLOW STORES, INC., THE SOCIETY OF

THE PLASTICS INDUSTRY, INC., WELLS DAIRY, INC.,

and M-H PACKAGING SYSTEMS, INC.

Respondents.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF MINNESOTA

BRIEF FOR RESPONDENTS

STATEMENT OF THE CASE

The evidence in this case is crucial to its determination. The

Statement of the Case in the Minnesota Attorney General’s

brief is neither complete nor accurate. To avoid undue length

and repetition, plaintiffs will review the environmental and

economic impacts of the statute in their argument.

Laws of Minnesota 1977, Chapter 268 (the Act) imposes

an absolute ban. It is a crime to sell milk in nonrefillable?

plastic containers under any circumstances.

Milk is the only commodity affected by the Art. No plastic

container is banned unless it is filled with milk, even though

the same container is used for fruit juices (R. 445, 457) and

similar plastic containers are used for many other substances,

including windshield washer fluid, laundry bleach and house-

hold cleaners.

Minnesota is the only state that has banned any kind of milk

container. Other container legislation has been directed at the

safety and environmental problems caused by the littering of

beer and soft drink containers—problems distinctly different

from those allegedly addressed by the Minnesota statute at

issue in this case.

The Minnesota Pollution Control Agency has no plans to

propose any further action on the subject of milk containers.

(R. 648-649.) Since passage of the Act, no further legislation

regarding milk containers has been proposed.*

2A container can be returnable without being refillable, e.g., the

plastic milk bottle at issue here can be returned for recycling

but cannot be used again to package milk. Throughout this brief

the term “nonrefillable”’ is used to describe containers which

cannot be used again to package milk.

3 Nor does the U.S. Environmental Protection Agency, which com-

missioned the milk container study done by the Midwest Re-

search Institute (R. 152), have any plans to propose such action.

(Ades Deposition, received in evidence, p. 18.) The amicus curiae

The unique nature of this Minnesota statute is explained

by its true purpose. While giving lip service to environmental

concerns, the legislative debates indicate that the intent of the

bill was to discriminate against the out-of-state plastics

industry. As discussed in detail in our argument, the bill’s

proponents wanted to isolate local industries from out-of-state

competition under the guise of environmental legislation.

SUMMARY OF ARGUMENT

The Minnesota Supreme Court, in declaring the Act viola-

tive of federal equal protection guarantees, has not assumed

the role of “super-legislature.” While legislative bodies enjoy

great latitude in dealing with perceived social evils, that lati-

tude is not unlimited. It must be exercised within constitu-

tional limits. The Court’s role, central to the functioning of

our political system, is to safeguard those limits. It does so by

applying established standards to facts of record.

Plaintiffs introduced evidence necessary to meet the sub-

stantial burden they carried in challenging the constitu-

tionality of the Act. The Minnesota courts made extensive

findings of fact which are amply supported by the evidence

and concluded that no credible facts exist upon which the legis-

lature could rationally base the classification contained in the

Act; it is not rationally related to furthering any of its alleged

environmental purposes.

A legislature may act step-by-step to ameliorate a perceived

evil. The mere fact that the legislature has acted does not

mean, however, that such a step has been taken. The step must

be rationally directed toward a legitimate goal. Eliminating

brief of the United States notwithstanding, no agency or depart-

ment of the United States has recommended statutory or regu-

latory action to ban or otherwise restrict the use of plastic or

any other type of milk containers.

the plastic milk bottle, thereby transferring its market share

to the environmentally inferior paperboard container, cannot

rationally be perceived as likely to further the stated environ-

mental goals of the Act.

The Court’s peculiar role in safeguarding the constitutional

limits of legislation is particularly important when legislation

has interstate consequences. Those consequences are of less

concern to a legislature than local ones. The illusory nature

of the stated environmental purposes of the Act is understood

by an examination of its true purpose as revealed by the legis-

lative debates and by its practical effect: to protect local paper

and timber interests against competition from the out-of-state

plastics industry. The Act exceeds Commerce Clause limita-

tions because it is “hostile in conception as well as burdensome

in result.” Great Atlantic & Pacific Tea Co. v. Cottrell, 424

U.S. 366, 381 (1976).

The Act contravenes the Commerce Clause even without

a finding of discriminatory motive. It discriminates in its

operation, and the stated goals can be promoted with less dis-

criminatory and more effective alternatives. Moreover, the

substantial burdens on interstate commerce outweigh the il-

lusory benefits of the Act.

ARGUMENT

I. THE EVIDENCE SUPPORTS THE FINPINGS OF THE

MINNESOTA COURTS THAT THERE IS NO FACTUAL

BASIS FOR BANNING THE PLASTIC MILK CON-

TAINER.

A review of the Minnesota courts’ findings and the support-

ing evidence is provided here as a framework for the legal

analysis to follow. This discussion utilizes primarily the

semantics of equal protection because the Minnesota Supreme

Court focused its decision on this issue. However, the same

findings which compel the conclusion that the Act lacks ra-

tionality and thus denies equal protection also compel the con-

clusion that the Act is in conflict with Commerce Clause

limitations.‘

The Minnesota Attorney General suggests several public

purposes to be served by Chapter 268. He claims that it is

4This Court is bound by factual findings of lower courts unless

they are clearly erroneous or the result of “a very obvious and

exceptional showing of error,” particularly when there are con-

current findings by two lower courts. Berenyi v. District Director,

Immigration and Naturalization Service, 385 U.S. 630, 635-636

(1967). The Court has conducted an “independent review” of

the evidenee when the party challenging the lower court decision

has asserted a constitutional right involving either procedural

due process in a criminal case, e.g., Pierre v. Louisiana, 306 U.S.

354 (1939), or civil liberties, particularly those under the First

Amendment, e.g., New York Times Co. v. Sullivan, 376 U.S. 254

(1964); Bachellar v. Maryland, 397 U.S. 564 (1970). But in cases

affecting economic interests, e.g., General Motors Corp v. Wash-

ington, 377 U.S. 436, 441-442 (1964), and even in some criminal

cases, e.g., Gallegos v. Nebraska, 342 U.S. 55, 61 (1951) and First

Amendment cases, Bantam Books, Inc. v. Sullivan, 372 U.S. 58,

68 (1963), the Court has deferred to lower court findings when

they are supported by the evidence. See generally Strong, The

Persistent Doctrine of “Constitutional Fact,” 46 N.C. L. Rev. 223

(1968). In this case the Court is confined to the application of

constitutional prine‘vles to the findings of the Minnesota courts

because they have an evidentiary basis.

proper to ban only the plastic milk bottle because the container

is new in Minnesota and that the Act will promote the use of

refillable containers. The statement of policy in the Act asserts

that the plastic milk bottle “presents a solid waste manage-

ment problem for the state, promotes energy waste and

depletes natural resources.”

Neither Minnesota court found any rational nexus between

these purposes and the means chosen to effect them. Further-

more, the trial court specifically found that the actual purpose

of the Act was to protect private local economic interests from

out-of-state competition, not to protect the environment.

A. The purpose of Chapter 268 was not to protect the

environment, but to protect and isolate local private

economic interests.

The evidence presented at trial revealed, as discussed below,

that no legitimate environmental basis exists for this legisla-

tion. Transcripts of the House and Senate floor debates on the

bill were received at trial and confirm the inferences that fol-

low from this evidence: protection of the environment was

not the real purpose of the Act.

The Minnesota Attorney General relies heavily on selected

legislative speeches to buttress the asserted purposes of the

Act. However, when the fallacies of these asserted purposes

became apparent during the debates, proponents of the bill

made it clear that their primary objectives were to insulate

small dairies from competition and to protect local timber and

paper interests from competition from the out-of-state plastics

industry. (See pp. 30-31, infra.) The trial court found these

to be the actual purposes of the legislation. (A. 19, 22.)°5

B. The plastic milk bottle has been widely used in Min-

nesota for years.

The Minnesota Attorney General argues that the Act was

designed to prevent a new container from gaining a foothold

in Minnesota. On the contrary, as found by the Minnesota Su-

preme Court, use of the container had been established in

many areas of the state in the early 1970’s. (A. 44.)

Marigold Foods, Inc. (Marigold) is a dairy with a trade area

including most of Minnesota and several adjoining states. (R.

448.) It began using the plastic bottle in 1973.° (R. 449.) By

1978 Marigold no longer packaged any milk in paperboard gal-

lons at its main plant in Rochester, Minnesota. (R. 453-454.)

In 1977 the volume of milk sold by Marigold in plastic gallons

exceeded its sales in paperboard gallons by almost 17 to 1. (R.

454.) At least one of its customers, Weber and Barlow Stores

in Rochester, had completely discontinued purchasing milk

in paperboard gallons in favor of plastic gallons. (R. 411.)

5“12. Despite the purported policy statement published by the

Legislature as its basis for enacting Chapter 268, the actual basis

was to promote the economic interests of certain segments of the

local dairy and pulpwood industries at the expense of the eco-

nomic interests of other segments of the dairy industry and the

plastics industry.”

“23. Despite the purported policy reasons published by the Leg-

islature as bases for enacting Chapter 268, actual bases were to

isolate from interstate competition the interests of certain seg-

ments of the local dairy and pulpwood industries. The economic

welfare of such local interests can be promoted without the

remedies prescribed in Chapter 268.”

6 Before 1973 the paperboard carton had become the predominant

milk container in Minnesota, having virtually eliminated refill-

able containers from the market. (R. 467-468.)

Wells Dairy, Inc. (Wells), an Iowa dairy, also began use of

the plastic bottle in Minnesota in 1978. (R. 421.) By 1978 its

ratio of plastic gallon sales to paperboard gallon sales was 40

to 1 (R. 419), with the plastic gallon accounting for 60 percent

of its total sales. (R. 426.) Approximately ten percent of Wells’

milk sales is in Minnesota (R. 428), including one million gal-

lons per year in plastic bottles. (R. 430-431.)

Clover Leaf Creamery Company (Clover Leaf), a Minne-

apolis-based dairy, first considered the use of the plastic bottle

in the mid-1960’s. (R. 326.) In 1971 the Minnesota Pollution

Control Agency (MPCA) assured Clover Leaf that it would

conduct studies on the environmental effects of the plastic con-

tz.iner, causing Clover Leaf to cancel an order for a plastic

bottle blow-moiding machine. (R. 327-328.) No studies were

ever conducted by the MPCA. (R. 645.) When the 1976 draft

of the Midwest Research Institute study indicated that there

was no environmental basis for preferring the paperboard

carton over the plastic bottle, Clover Leaf decided to begin us-

ing plastic. (R. 330-331.) It ordered the machinery in 1976

(R. 331) and began production of the plastic bottle at its Min-

neapolis plant by January 1977. (R. 332.) It uses plastic

throughout its market area, i.e. within 200 miles of Minne-

apolis. (R. 326, 332.) By January, 1978, approximately 60 per-

cent of all milk sold by Clover Leaf in gallon containers was

in plastic, the remaining 40 percent in paperboard. (R. 340.)

The plastic bottle has been used extensively by other dairies

throughout the state, except in the Twin Cities metropolitan

area, since as early as 1968. (R. 329, 353-354.)

Although Marigold, Wells and Clover Leaf have their own

equipment for making plastic bottles, dairies need not have

such equipment. Some have purchased plastic bottles from bot-

tle manufacturers for several years and, more recently, from

other dairies with excess bottle-making capacity, at a price

less than that paid for paperboard cartons. (R. 291-292, 303,

353-354, 427, 450.) In addition, the cost of the equipment was

grossly exaggerated during the legislative debates. (R. 114,

247.)

Ample evidence supports the conclusions of the Minnesota

courts that the Act may not be sustained as a measure to

prevent the plastic bottle from gaining a foothold in the

Minnesota milk market.

C. The Act will not encourage or promote a return to the

use of refillable containers.

The Minnesota Attorney General argues that the Act is

designed to halt the trend toward nonrefillable containers and

promote the use of refillables. The trial court found “no

credible evidence” to substantiate this claim. (A. 25.) The Min-

nesota Supreme Court concluded that “the evidence conclu-

sively establishes” that this goal will not be furthered by the

Act. (A. 42.)

In Minnesota the paperboard carton had virtually elimi-

nated refillables from the market before plastic was intro-

duced. Thus Minnesota consumers have switched, not from

refillable bottles to plastic, but from nonrefillable paperboard

to nonrefillable plastic. If Chapter 268 goes into effect, the

dairies will go back to the paperboard carton. (R. 339-340,

427.) Some dairies do not even have the facilities necessary

tc wash refillable bottles, and regulatory restrictions (which

did not exist in the days of the glass milk bottle) on the volume

and content of sewage generated by the bottle-washing process

would pose serious problems for these dairies and the munici-

palities in which they are located. (R. 424-425, 454-455.) 7

In 1977 Clover Leaf made a concerted but abysmally futile

effort to revive the refillable milk bottle. (R. 332-340.) Con-

sumers did not purchase milk in the refillable bottle, even

when the only alternative in a particular store was the paper-

board carton (R. 368-369) and even though the price charged

to the retailer by Clover Leaf for milk in the refillable con-

tainer was four cents less per gallon than the price for milk

in either of the nonrefillable gallon containers. (R. 358.) %

Clover Leaf had to take back large quantities of milk (R. 334)

and finally sold several thousand unused refillable bottles at

a loss. (R. 339.)

Since no other state has ever banned plastic milk containers,

the Minnesota Attorney General points to the Province of

Ontario as the model to be followed. However, even Ontario’s

ban (by administrative fiat), which included both the plastic

container and the large paperboard carton, has failed. Con-

sumers there have turned in large numbers to the third nonre-

fillable alternative, the plastic pouch. This is particularly sig-

nificant because the refillable had high visibility and a very

large market share in Ontario when the ban went into effect.

The market share of refillables dropped from 47 percent when

the ban was issued in 1971 to 19.7 percent in 1977. (Endicott

Deposition, received in evidence, pp. 88-89; Endicott Depos.

Ex. 6, p. 5.)

7 Refillable milk bottles also create sanitation problems which

make the Minnesota Department of Agriculture reluctant to en-

courage their revival in Minnesota. (Pl. Ex. U; R. 335-337.)

8 Clover Leaf acknowledges the environmental advantages of the

refillable containers but is convinced that the use of refillables

will not increase unless all nonrefillables are prohibited. (Def.

Ex. 3; R. 339-340, 361-362.)

Plaintiffs’ witness from the United States Environmental

Protection Agency did not believe that the Act will cause re-

fillables to make a comeback in Minnesota. (Ades Depos. pp.

20, 37-38.)

The evidence supports the findings of the Minnesota courts

that Chapter 268 will not promote the use of refillable milk

containers.

D. The Act will not aid in the management or control of

solid waste. It will aggravate the environmental prob-

lems caused by solid waste.

The Minnesota Supreme Court concurred with the trial

court and held that “the evidence conclusively demonstrates

that plastic nonrefillables present fewer solid wasie problems

than paper containers.” (A. 40.)

There are several methods of handling and reducing solid

waste, including landfills, incineration, recycling, litter con-

trol, and source reduction. The evidence showed that with all

applicable methods the plastic bottle is environmentally supe-

rior to the paperboard carton.

1. Landfills.

The predominant method of solid waste disposal is deposit

in landfills. (R. 67.)

a. Leachates and methane gas.

The State’s witnesses agreed that the worst environmental

hazards posed by landfill operations are pollution of ground-

water caused by leaching and the creation and escape of

methane gas. (R. 594, 652.) The Metropolitan Council of the

Twin Cities has recognized the magnitude of these problems

in existing landfills in the Minneapolis-Saint Paul area. (R.

595-597; Pl. Ex. AA.) The major objective in designing land-

fills is to control or minimize the effects of leachates and

gases.

Both of these hazards are created by waste decomposition.

Bacterial and other chemical reactions, combined with percola-

tion of water and other liquids, create leachates that seep into

the ground and ultimately into underground water. These

same reactions create methane gas, which is both noxious and

explosive. (R. 72-74, 385-386, 594.)

Paperboard milk cartons aggravate these problems when

they are deposited in landfills because they decompose after

the plastic coating is punctured or torn. (R. 73, 617.) Plastic

bottles, on the other hand, are essentially inert and do not con-

tribute to the creation of leachates and methane gas. (R. 72-

73, 595.) Plastic is in fact used to make liners for landfills to

prevent contamination of groundwater by seepage of leachates.

(R. 73-74.)

The trial court (A. 20) and the Minnesota Supreme Court

(A. 35-36) emphasized this distinction between the two con-

tainers.

b. Landfill stability.

Another disadvantage of waste decomposition is that it

makes the landfill site unstable after it has been filled, thus

preventing the site from being used for many kinds of building

construction. (R. 72-73, 385.) Stable sites do, however, have

many uses, including parking lots, playing fields, and ski hills.

(R. 381-382.) Stability is also required to minimize cracking

of the final landfill cover and the resulting generation of more

leachates. (R. 385.)

As found by the trial court (A. 20) and Minnesota Supreme

Court (A. 36), plastic bottles contribute to landfill stability ;

paperboard cartons do not.

c. Compaction of solid waste.

The procedure followed in collecting and depositing waste

and the physical characteristics of plastic and paperboard con-

tainers indicate that plastic bottles consume no more space

in landfills than paperboard containers, and that under total

compaction plastic containers will consume even less space.

Waste is generally collected and transported to landfill sites

in large trucks with hydraulic compacting equipment. During

collection the waste is compacted to a small fraction of its

original volume. (R. 386-387.) At the landfill, procedures and

equipment are specially designed to compact the waste further

and keep it compressed. (R. 383-384, 386, 394-395.) Compact-

ing machines resembling large tractors have huge metal

wheels with spikes or cleats to puncture and compact the

waste. (R. 388-393; Pl. Ex. V, W, X, Y and Z.) They weigh ap-

proximately 50,000 pounds and can flatten steel drums, re-

frigerators and automobiles. (R. 389, 391-392.) When filled

the landfill may be as much as 150 feet deep. (R. 386.)

The Minnesota Attorney General ignores the evidence ad-

duced at trial when he asserts that the Midwest Research

Institute (MRI) determined that plastic bottles occupy more

landfill space than paperboard cartons. While the numbers

in the MRI Report purport to indicate this, testimony by

Plaintiffs’ witnesses, Mr. Welch, the principal investigator

from MRI, and Mr. Ades of the United States Environmental

Protection Agency, and a review of the document which

formed the sole basis for the compaction figures reveal that

these figures are erroneous.® Mr. Welch opined that there was

insufficient evidence to conclude whether either gallon con-

tainer would consume more landfill space than the other. (R.

194-195, 199-200.)

As indicated by the trial court (A. 25-26) and the Minnesota

Supreme Court (A. 38), the contrary conclusions of Harold

Samtur, the State’s solid waste expert, were entitled to little

credence.'® His testimony demonstrated a remarkable lack

of familiarity with the sources on which he purportedly relied

and a corresponding disinclination to examine their validity

and meaning.??

® Neither witness Welch nor Ades believes these figures to be

credible. (R. 173-174, 177-178; Ades Depos. pp. 15-16.) They were

based on a three-page report supplied to MRI by the American

Paper Institute. (R. 169-171, 197; Pl. Ex. O.) This document,

though included by MRI as the only “study” available, was vir-

tually meaningless because (1) it neglected to specify the weights

of the containers used (R. 173-174), and (2) the test conducted

did not even roughly approximate conditions in a landfill, e.g.,

it measured the volume of the containers after being crushed

once with a laboratory device and then being totally released,

with no continuing pressure being exerted on them. (R. 179-181.)

10 The Minnesota Attorney General suggests that the mere existence

of a difference of opinion is all that is necessary to sustain a

statute. He is in error. Just as the presumption of constitution-

ality does not immunize a statute from judicial scrutiny, “nor

is such an immunity achieved by treating any fanciful conjecture

as enough to repel attack.” Borden’s Farm Products Co., Inc. v.

Baldwin, 293 U.S. 194, 209 (1934). Courts are not bound to accept

blindly the testimony of witnesses for any party in constitutional

litigation. It is subject to cross-examination and evaluation the

same as the testimony of any witness in any other trial. If an

opinion is not legitimately founded or lacks credibility, the mere

fact that it is asserted is without probative value.

11Samtur relied on three sources: (1) The MRI Report. He ac-

cepted the figures on post-consumer solid waste without examin-

ing their derivation and in spite of Welch’s testimony about their

inadequacy. (R. 604-605, 607-609.); (2) The “study” done in On-

tario. (R. 604.) The Ontario researchers estimated the compaction

ratio for a refillable plastic bottle and then assumed that the

much lighter plastic nonrefillable would consume the same space.

(Endicott Depos. p. 74.) They also used a nonrefillable plastic

bottle that is not comparable to the bottle now used in Minne-

sota because it was almost 50 percent heavier and thus more dif-

ficult to crush. (Endicott Depos. pp. 9, 75-76.); (3) The so-called

Eggshell Report, a 1969 study of disposability characteristics of

containers which did not include milk containers in the samples

used. (R. 508, 513, 574-575; 606-607.)

During cross examination of Mr. Samtur, counsel for Plain-

tiffs crushed samples of both the nonrefillable plastic gallon

and the paperboard gallon with his bare hands. (R. 609-614,

Pl. Ex. BB and CC.) Samtur estimated that the crushed

volume of each container was between ten and twenty percent

of its original volume. (R. 611, 613.) He acknowledged that

there was virtually no springback of the plastic bottle after

it had been crushed and released, and that any such springback

could be eliminated by squeezing the container between the

thumb and forefinger. (R. 611-612.) The State made no effort

to rebut this demonstration. !?

The Minnesota Supreme Court sustained the trial court’s

finding that the two containers occupy substantially the same

amount of landfill space. (A. 36.) It also agreed with the trial

court that Samtur’s opinions had a “weak and inconclusive

foundation” and “lacked convincing quality.” (A. 38.)

2. Incineration.

Solid waste can be incinerated and used to create energy.

This method of disposal will become more widespread as

technology enables the economical use of the energy value of

the heat generated by incineration. (Def. Ex. 9, pp. 33-44; R.

490.)

Both plastic bottles and paperboard cartons burn. (R. 186.)

Plastic, however, has a much higher BTU value (R. 186),

which results in the recovery of more energy than that re-

covered from burning paperboard cartons. (R. 68-71, 323.)

Unlike paperboard, plastic also incinerates completely and

does not emit noxious gases into the atmosphere. (R. 69-70.)

12 If total compaction is achieved, i.e., no void spaces are left in the

containers, plastic containers will occupy less landfill space than

paperboard containers, because the former contain much less raw

material by weight and have a greater density. (R. 578-579.)

The trial court (A. 20) and Minnesota Supreme Court (A.

38-39) recognized these distinctions.

3. Recycling.

Another method of solid waste disposal is recycling. Plastic

milk containers are recyclable because they can be reground

and used to make a large number of other polyethylene

products. Paperboard milk cartons are not recyclable because

the paperboard and the plastic coating cannot be separated.

(R. 74-76, 185-186, 346.)

Clover Leaf has a voluntary plastic milk bottle recycling

program. It picks up plastic milk bottles that are returned to

the retail stores, grinds them and sells the plastic material to

a salvage dealer. (R. 346-348.) Similar programs exist else-

where. (R. 75; Ades Depos. pp. 26-27.)

The Minnesota legislature has adopted an express statutory

policy to encourage the reuse and recycling of materials. Minn.

Stat. §116F.01. The trial court found that Chapter 268 does

not promote this legislative goal. (A. 21.)

4. Litter control.

The State agrees that litter control is not one of the pur-

poses of Chapter 268. (R. 646.) Milk, especially when pur-

chased in large containers, is consumed in the home. The con-

tainers are not littered, but directly enter recycling or trash

collection systems. (R. 76.)

Other container legislation throughout the country, includ-

ing that cited by the Solicitor General (Brief for the United

States as Amicus Curiae, p. 9), has been directed at the prob-

lems created by littering containers of other beverages. None

of that legislation affects milk containers. '*

The plastic milk bottle also differs from the paperboard

milk carton and nonrefillable containers used for other bever-

ages in that it is preferred by consumers for reasons other

than disposal convenience. The screw-on cap prolongs the

freshness of the milk and eliminates contamination by re-

frigerator odors. The built-in handle enables the user to pour

with one hand even though the container is large. The paper-

board carton does not have these features, and sanitation

restrictions prevent the use of a refillable milk container with

a screw-on cap or built-in handle. (R. 357-358, 365, 450.)

5. Source reduction.

The Act is cited by the Minnesota Attorney General as a

“source reduction” measure, i.e., it allegedly will reduce the

amount of solid waste to be handled. As discussed above, the

Act is not rationally related to this purpose because it will not

revive refillables and the amount of space consumed in land-

fills is substantially the same for the two presently used con-

tainers. The act is in fact counterproductive because, as stated

by the Minnesota Supreme Court, “The major relevant source-

reduction factor is the constantly declining weight of plastic

nonrefillables.” (A. 39.)

13The instant statute is unprecedented. It is totally different in

purpose and effect from all those cited by the Solicitor General

and from those upheld by other courts. See Can Manufacturers

Institute, Inc. v. Minnesota, 289 N.W.2d 416 (Minn. 1979); Ameri-

can Can Co. v. Oregon Liquor Control Commission, 15 Or. App. 618,

517 P.2d 691 (1973); Anchor Hocking Glass Corp. v. Barber, 118

Vt. 206, 105 A.2d 271 (1954). The only other statute banning a

plastic container has been invalidated. Juice Tree Hawaii, Inc. v.

Yuen, 13 E.R.C. 1888 (Hawaii Cir. Ct. 1979). Plaintiffs do not

challenge container legislation per se. The scope of this case is

very limited, and it must be decided on its own facts.

The weight of the plastic bottle is little more than half that

of the paperboard carton; it generates much less waste. While

the weight of the gallon paperboard carton has remained at

115 grams for several years (R. 245, 344, 422-423), improve-

ments in resin, machinery and design have substantially re-

duced the weight of the plastic bottle, even since 1973. (R. 244-

245, 285, 310, 341, 423, 453.) This reduction causes a propor-

tional decrease in the amount of raw material used, the

amount of waste generated, and the other environmental im-

pacts. (R. 168-169.)

The Act is also counterproductive insofar as it promotes

the use of smaller containers. Source reduction is accomplished

by packaging products in larger containers which reduces the

amount of container material per unit of product. (R. 156,

584.) The plastic milk bottle is used in Minnesota only in the

gallon size, thus promoting source reduction. Paperboard car-

tons are used in several sizes. Source reduction will be impeded

to the extent that consumers, finding the plastic gallon un-

available, choose to purchase milk in smaller paperboard con-

tainers rather than in the cumbersome (R. 450) gallon size.

E. The Act will not aid energy conservation.

The energy argument advanced by the Minnesota Attorney

General derives from the premises that plastic is inherently

bad and that banning any plastic product will automatically

result in more oil and gas being made available for fuel. Both

the trial court and the Minnesota Supreme Court found, how-

ever, after reviewing the evidence discussed below, that the

Act is not rationally related to achieving this result and that

the paperboard carton actually consumes more energy than

the plastic bottle. The energy conservation aspect of the Act

is illusory and the Act “is not reasonably related to the state’s

interest in preventing energy waste.” (A. 42.)

Plastic milk bottles are made from high density polyethylene

(HDPE), which can be derived from virtually any materia!

that contains carbon and hydrogen, such as coal, water, and

even air. (R. 30-31.) The principal current sources for HDPE

and other plastics are crude oil and natural gas. (R. 31.)

The Minnesota Attorney General’s assertion that plastic

milk bottles consume natural gas that would otherwise be

available for fuel is fallacious. The extraction of polyethylene

from natural gas for productive use is a relatively recent

phenomenon. (R. 32.) Ethane, from which polyethylene is

derived, is a component of the natural gas stream that is used

for petrochemicals. It used to be (R. 32) and sometimes still

is (see Wall St. J., June 10, 1980, at 11, col. 1 (East Coast

ed.)) burned off as a “waste” product at refineries.

Much of the expert testimony at trial centered around the

MRI Report. The testimony of Mr. Welch consisted in large

part in clarifying the report in order to compare the energy

impacts of the nonrefillable pastic and paperboard containers.

Welch computed the impacts for 65- and 60-gram containers,

because the Report studied the 70-gram container and the size

in predominant use had since been reduced to 65 grams. (R.

245, 285, 341, 453.) These computations are contained in Plain-

tiff’s Exhibit L (R. 157-158) and show that the impact of the

plastic bottle is reduced in every category as the weight of the

bottle is reduced. (R. 168-169.) '*

14 Throughout the MRI Report and related exhibits (such as Ex-

hibit L), a higher number means a greater, and thus environ-

mentally more adverse, impact (e.g., pounds of material con-

sumed, BTU’s of energy used). (R. 159-160.)

All of the environmental impacts are greater for the paper-

board half-gallon than for the paperboard gallon because the

former uses more container material per unit of milk. (See PI.

The MRI Report (and Exhibit L) computed two values for

the energy impact of the paperboard container, one including

and one excluding the energy value of the wood waste gen-

erated by the paperboard manufacturing process. (See Pl. Ex.

I, pp. 3-4.) Welch testified that a meaningful comparison of

the two containers requires inclusion of the wood waste en-

ergy. (R. 162-163.) This comparison (see Pl. Ex. L) shows

that the paperboard carton uses slightly less energy than the

70-gram plastic bottle but more energy than the 65-gram and

60-gram plastic bottles.

The MRI Report recognizes that the true energy picture

goes far beyond the nature of the raw material used. Welch

concluded that the energy impact of the plastic bottle and

paperboard carton systems is virtually identical. (R. 194, 199.)

If one either includes the energy value of the raw materials

for both containers or excludes it for both containers, then

paperboard has a significantly greater adverse environmental

impact. (R. 160-161, 163-166; Pl. Ex. M.) Moreover, the

energy impact of the plastic bottle will continue to decline as

the weight of the bottle continues to be reduced.'5

Ex. I, pp. 8-9.) Comparing the plastic gallon to the paperboard

gallon (as is done in Exhibit L) is therefore more favorable to

the paperboard system than comparing the plastic gallon to two

paperboard half-gallons. If the ban on plastic were to result in

greater use of the paperboard half-gallon (because of the dis-

advantages which the paperboard gallon poses for the consumer),

the adverse environmental effects of the Act would be greater

than if consumers merely switched to the paperboard gallon.

15 The State introduced voluminous exhibits and testimony regard-

ing studies in Ontario which purport to show significantly greater

consumption of energy by the plastic bottle. The Ontario studies

are of little value because: (1) they used an 80-gram plastic bot-

tle; (2) they arbitrarily excluded the energy consumed in manu-

facturing the paper container material (Endicott Depos. Ex. 13,

p. 251); and (3) the more recent Ontario report on energy (Endi-

cott Depos. Ex. 5), prepared supposedly because of improvements

in energy analysis techniques since the first study (Endicott

Depos. p. 18), did not even evaluate the nonrefillable plastic

container. (Endicott Depos. p. 81.)

If anything, the Act will simply promote the greater con-

sumption of energy and raw materials by the paper industry.

It is noteworthy that no Minnesota industry consumes energy

or raw materials to produce crude oil, natural gas, HDPE or

any other plastic resin. (R. 167-168, 309.)

F. The Act will not lessen the consumption of natural

resources.

Chapter 268 will not result in less consumption of natural

resources, renewable or nonrenewable. As found by the trial

court, “Both petroleum and wood are natural resources subject

to depletion from innumerable sources, one of the least being

milk containers.” (A. 20.) The Minnesota Supreme Court

stated, “The amount of crude oil and natural gas used for

producing plastic nonrefillables is so small that a ban on

plastic nonrefillables will not alter the volume of resources

consumed for non-fuel purposes. If any container is likely to

have the potential for reducing depletion of natural resources,

it is the plastic nonrefillable” because its weight is continually

being reduced and it is recyclable. (A. 42.)

G. Other environmental factors further demonstrate the

superiority of the plastic bottle.

In the words of the Minnesota Supreme Court, “When other

environmental factors are considered, the superiority of plas-

tic nonrefillables is more evident.” (A. 42 n.19.)

The system of producing the paperboard carton (1) con-

sumes much more water, (2) generates much more water-

borne waste, (3) consumes much greater quantities of raw

materials, and (4) generates more industrial solid waste. (R.

158-159, 166-168; Pl. Ex. L.) These comparisons are par-

ticularly significant in Minnesota because the impacts gen-

erated by the paperboard carton are all felt within Minnesota.

While the plastic bottle system creates more atmospheric emis-

sions, these do not occur in or near Minnesota. (R. 167-168.)

Il. THE ACT DENIES PLAINTIFFS EQUAL PROTECTION

OF THE LAWS.

Plaintiffs agree that the appropriate test for determining

the constitutionality of this unique Minnesota statute is wheth-

er the classification created by the Act is rationally related

to furthering a legitimate state interest. Both the Minnesota

Supreme Court and the trial court applied that standard to

the facts of this case and concluded that the Act violates the

Equal Protection Clause. (A. 23, 45.)

Plaintiffs acknowledge the burden that they carried in suc-

cessfully challenging the constitutionality of the Act in the

Minnesota courts. Statutes are presumptively constitutional,

and judges do not determine the wisdom of legislative acts.

But the presumption of constitutionality is nothing more than

a presumption “of the existence of factual conditions support-

ing the legislation” and is therefore rebuttable. Borden’s Farm

Products Co., Inc. v. Baldwin, supra, note 10, 293 U.S. at 209.

Like all civil presumptions, it is procedural and vanishes when

credible rebutting evidence is received. Fed. R. Evid. 301;

Minn. R. Evid. 301 (identical counterpart to federal rule).

A. The purpose of the Act is not a legitimate one.

This Court has held that “[T]he mere recitation of a benign,

compensatory purpose is not an automatic shield which pro-

tects against any inquiry into the actual purposes underlying

a statutory scheme.” Weinberger v. Wiesenfeld, 420 U.S. 636,

648 (1975). In a footnote to this statement, the Court further

observed :

This Court need not in equal protection cases accept at

face value assertions of legislative purposes, when an

examination of the legislative scheme and its history

demonstrates that the asserted purpose could not have

been a goal of the legislation.

Id. at 648 n.16. This principle is no less applicable when the

“benign, compensatory purpose” is purportedly environmen-

tal:

Our society and its governmental instrumentalities, hav-

ing been less than alert to the needs of our environment

for generations, have now taken protective steps. These

developments, however praiseworthy, should not lead

courts to exercise equitable powers loosely or casually

whenever a claim of “environmental damage” is asserted.

The world must go on and new environmental legislation

must be carefully meshed with more traditional patterns

of federal regulation.

Aberdeen & Rockfish R. Co. v. SCRAP, 409 U.S. 1207, 1217-

1218 (1972) (dictum) (Burger, C. J., sitting as circuit judge).

As discussed in detail below at pages 30-31, the legislative

history demonstrates, and the trial court found, that the Act’s

“actual bases were to isolate from interstate competition the

interests of certain segments of the local dairy and pulpwood

industries.” (A. 22.) This legislative purpose does not consti-

tute a legitimate state interest. Consequently the Act violates

the Equal Protection Clause whether or not the means chosen

would further the actual legislative goal.

B. Even if the purpose of the Act were among the pur-

poses stated in its preamble, the ciassification contained

in the Act is not rationally related to furthering any

stated purpose.

Plaintiffs agree that the purposes of the Act as asserted in

its preamble represent legitimate state purposes. However,

plaintiffs’ evidence convinced the Minnesota courts that no

credible facts exist to distinguish the paperboard container

from the plastic in such a way that their differing treatment

under the Act furthers any of those purposes.

In one of the most recent decisions in which the Court ap-

plied the standard of rationality, the burden of those challeng-

ing the legislative enactment was described as follows:

[They] must convince the court that the legislative facts

on which the classification is apparently based could not

reasonably be conceived to be true by the governmental

decisionmaker.

Vance v. Bradley, 440 U.S. 93, 111 (1979). Plaintiffs intro-

duced voluminous evidence and successfully met this substan-

tial burden.

The Minnesota Attorney General and supporting amici

would impose an impossible burden of proof on plaintiffs:

they apply a standard requiring the introduction of evidence

but would preclude courts from considering it. The trial court

and the Minnescta Supreme Court carefully considered the

evidence of record. Contrary to the contention of the Minne-

sota Attorney General, the Minnesota Supreme Court’s con-

sideration of the facts was proper and required. !®

16The Minnesota Attorney General suggests that the court may

search its own mind in preference to the record for facts upon

which the legislature might conceivably have based its classifica-

It is not disputed that the appropriate standard of judicial

review is a limited one. The Minnesota Attorney General ob-

serves that in the last 50 years the Court has invalidated only

one economic regulation as violative of equal protection and

that its decision in that one case was subsequently overruled.

(Pet. Brief p. 28.) That observation ignores the “‘noneco-

nomic” regulations which have been invalidated under the

very same standard. In Rinaldi v. Yeager, 384 U.S. 305 (1966),

for example, the Court invalidated a New Jersey statute re-

quiring that the cost of trial transcripts be deducted from the

earnings of imprisoned indigent defendants as not rationally

related to the state’s fiscal objective. Recently the Court sum-

marily affirmed a decision of the Eighth Circuit which held

there was no rational basis for a statutory classification which

denied pre-pregnancy family planning funds to nonprofit cor-

porations which perform abortions, other than hospitals or

health maintenance organizations. Minnesota v. Planned

Parenthood of Minnesota, 48 U.S.L.W. 3846 (June 24, 1980).

The fact remains that the Court continues to employ the ra-

tional basis standard in its review of economic and non-

economic regulations. It has never held that any regulation

containing a legislative statement of purpose and accompanied

by a few substantiating facts will stand. To legitimate such

legislative action automatically would indeed be to act as a

tion, citing McGowan v. Maryland, 366 U.S. 420 (1961). (Pet.

Brief pp. 27, 33.) One commentator has noted that although

McGowan is still relied upon occasionally as authority for ignor-

ing the record, the Court has increasingly shown a willingness to

consider the evidence which the parties have introduced. Bennett,

“Mere’’ Rationality in Constitutional Law: Judicial Review and

Democratic Theory, 67 Calif. L. Rev. 1049, 1058 (1979). “[I]f extra-

record facts necessarily play a role in what judges determine

to be ‘reasonably conceivable,’ it would be anomolous to exclude

facts of record in making that judgment. It would be no less

anomolous that facts delimiting what was conceivable were not

proved because they were nat permitted to be proved.” Jd.

super-legislature. The rational basis standard continues to act

as a limit on legislative action, not merely as a foregone con-

clusion of approval.

The State acknowledges that a statute will fail to satisfy the

rational basis standard when the legislative facts upon which

it is based are demonstrably false. (Pet. Brief p. 33.) Futher-

more, “the constitutionality of a statute predicated upon the

existence of a particular state of facts may be challenged by

showing to the court that those facts have ceased to exist.”

United States v. Carolene Products Co., 304 U.S. 144, 153

(1938). The facts introduced by plaintiffs and discussed in

Section I convinced the Minnesota courts not simply that

the facts are debatable but that the facts upon which the legis-

lature allegedly relied (e.g., that the paperboard container

occupies less space in a landfill) were demonstrably false.

Therefore, they cannot form a rational basis for the classifi-

cation contained in the Act. The credible facts demonstrate

that the ban on the sale of milk in plastic bottles cannot

reasonably be perceived to promote the use of refillable milk

containers, ameliorate solid waste management problems or

conserve either energy or natural resources.

The Minnesota Attorney General, citing City of New

Orleans v. Dukes, 427 U.S. 297 (1976), asserts that a legisla-

ture may act to ameliorate an existing evil one step at a time.

Plaintiffs agree. Likewise, the Minnesota Supreme Court ex-

plicitly acknowledged this principle in its opinion. It held, how-

ever, that the Act did not represent a step toward ameliora-

tion of any existing or perceived evil. (A. 45.)

The Dukes case is in obvious contrast to the case at bar.

There the legislative body had determined that pushcart ven-

dors, because incompatible with the appearance and custom

of the French Quarter, were an evil which it wished to eradi-

cate. By prohibiting all vendors but those which had operated

within the Quarter for at least eight years, the ordinance

eliminated all but two vendors, a substantial decrease in the

perceived evil. Furthermore, with the passage of time and the

death of the two vendors, or their cessation of business for

other reasons, the perceived evil would be eliminated al-

together. Similarly, the steps upheld in Railway Express

Agency, Inc. v. New York, 336 U.S. 106 (1949) and William-

son v. Lee Optical Co., 348 U.S. 483 (1955) at least caused a

reduction in the quantity and magnitude of the perceived

“evil.”

In the instant case, however, the statute will do the reverse

by legislating total market domination by an environmentally

inferior container. Market conditions, consumer preferences,

and the failure of the legislature to take any additional steps

dictate that paperboard will replace plastic throughout the

state. A step was taken by the Minnesota legislature, but it

was backward rather than forward.

Ill. THE ACT IMPOSES UNCONSTITUTIONAL BURDENS

ON INTERSTATE COMMERCE,

The Act’s burdens on interstate commerce are substantial.

The most obvious and severe are those which affect the plas-

tics industry. No natural gas or oil is extracted in Minnesota.

None of the refineries producing high-density polyethylene

is located in Minnesota. (R. 309.) The machinery used to mold

the containers is manufactured outside Minnesota. (R. 242,

244.) Moreover, this is not a situation where marketing in the

state is merely made more expensive or difficult; the move-

ment of this raw material and equipment is halted at the Min-

nesota border. The container is not regulated, it is banned.

Meanwhile, Minnesota timber and paper industries are unaf-

fected.

Plaintiff Phillips Petroleum Company would lose between

$400,000 and $500,000 annually from the sale of plastic resin

to Minnesota customers which mold nonrefillable plastic milk

bottles. (R. 309.) Other members of plaintiff The Society of

the Plastics Industry, Inc. engaged in the production of resin

would be similarly affected. Plaintiff Hoover, the major manu-

facturer of blow-molding machinery in the United States (R.

244), has already lost $1.5 million in sales in Minnesota be-

cause of the pendency or passage of the Act. (R. 247, 254.)

The Act also burdens the operations of dairies with multi-

state markets. Wells Dairy, Inc., an lowa dairy which annually

sells one million gallons of milk in Minnesota in plastic bot-

tles, would have to reinstitute paper packaging for the milk

it ships to Minnesota. Like Wells, Minnesota dairies such as

Marigold (56 percent of whose sales are outside Minnesota

(R. 46)) and Clover Leaf would be forced to employ two con-

tainer distribution systems in order to continue to compete

in both Minnesota and other states. This would increase their

costs of doing business and decrease their already slight profit

margins. (R. 346, 427-428.)

Plaintiff M-H Packaging, located in Minnesota, manufac-

tures nonrefillable plastic bottles. Most of its sales are to

dairies, many of which are outside Minnesota. (R. 283-284.)

The Act would eliminate one-third of its business. (R. 289-

290.)

Dairy farmers would also be affected. Those located in other

states who seek to market their milk in Minnesota would be

deprived of the advantages which the container gives to milk

in its competition with other beverages. (R. 455-457.) Minne-

sota dairy farmers selling to Minnesota dairies which do busi-

ness in other states would indirectly suffer the same competi-

tive disadvantages encountered by those dairies.

Thus the interstate movement of plastic, machinery, con-

tainers and milk, as well as the ability to engage in the busi-

ness of selling any of these products on a multi-state basis,

would be substantially impaired by the statute.

Philadelphia v. New Jersey, 487 U.S. 617 (1978) and Lewis

v. BT Investment Managers, Inc., 100 S.Ct. 2009 (1980)

articulate the two components of Commerce Clause analysis

applicable to this case. The first, a “virtually per se rule of

invalidity,” Philadelphia v. New Jersey, supra, 487 U.S. at

624, is applied to statutes which effect economic protectionism.

The second, a more flexible balancing of burdens and benefits,

is applied to statutes which do not necessarily have this objec-

tive or impact. The application of either rule compels the con-

clusion that the Act contravenes the Commerce Clause.

A. The Act is invalid as a tool of economic protectionism.

The Court has long recognized the evils of economic isola-

tion and protectionism among the states. The promotion of

local economic interests is not legitimate when effected by dis-

crimination against interstate commerce. E.g., Hughes v.

Oklahoma, 441 U.S. 322 (1979) ; Philadelphia v. New Jersey,

supra; Hunt v. Washington State Apple Advertising Commis-

sion, 432 U.S. 333 (1977) ; Polar Ice Cream and Creamery Co.

v. Andrews, 375 U.S. 361 (1964); Dean Milk Co. v. City of

Madison, 340 U.S. 349 (1951); Baldwin v. G.A.F. Seelig, Inc.,

294 U.S. 511 (1935). “The clearest example of [economic pro-

tectionism subject to virtually per se invalidity] is a law that

overtly blocks the flow of interstate commerce at a State’s

borders.” Philadelphia v. New Jersey, supra, 437 U.S. at 624.

Occasionally, as in this case, discriminatory motives are ap-

parent in legislative history. See Lewis v. BT Investment

Managers Inc., supra, 100 S.Ct. at 2013; Hunt v. Washington

State Apple Advertising Commission, supra, 432 U.S. at 352.

The legislative debates show that the Act is couched in

laudable terms but founded in discrimination against out-of-

state interests.

Once the alleged bases for the bill were challenged by the

sponsors’ skeptical legislative colleagues, the true purpose of

the bill was disclosed. Representative Munger, the chief spon-

sor in the House of Representatives, admitted that he had not

evaluated the environmental issues posed by the bill, recount-

ing instead the evils of the out-of-state plastics industry and

the need to protect Minnesota businesses. (R. 119-121.) Re-

curring themes in the debates included the protection of the

Minnesota timber and pulp industry (R. 115, 122, 125) and

of the small dairies which would allegedly be unable to compete

with the larger ones (i.e., those selling milk in other states).

(R. 114-115, 119, 121.) The bill was repeatedly characterized

as economic rather than environmental in purpose. (R. 121-

122, 124, 129-130.)

Representative Munger expressed particular hostility

toward out-of-state interests, chiding a colleague for letting

“the guys in the alligator shoes from New York and Chicago

come here and tell you how to run your business.” (R. 118.)

He added:

I don’t think we need to have anybody from New York

and the plastics industry to come in here and tell us farm-

ers how to farm. We don’t need anyone to come in here

to farm the farmer.

(Pl. Ex. J., House debate Mar. 17, 1977, p. 2; R. 112-113.)

Senator Ulland, a supporter of the bill from Duluth, agreed:

I don’t think there is anything the matter with supporting

the timber industry which is our third largest employer

in the state. I think in fact that is one of our responsi-

bilities to keep a healthy economy in the state rather than

importing petrochemicals and importing plastic bottles

from Chicago or wherever they are manufactured cer-

tainly the natural resources aren’t from here. I am a little

bit surprised at Senator Peterson who has a significant

number of pulp cutters in his district, would not be ter-

ribly concerned with one of their major products.

(Pl. Ex. J., Senate debate May 20, 1977, p. 4; R. 112-113.)

Thai efforts in Minnesota to adopt container deposit legisla-

tion had failed repeatedly suggests that a token act was needed

that would appease environmentalist criticism of the legisla-

lure without generating opposition from Minnesota business

and labor interests. (R. 131-132, 629-630.)

The trial court found that the Act’s “actual bases were to

isolate from interstate competition the interests of certain seg-

ments of the local dairy and pulpwood industries.” (A. 22.)

The Court need not, however, find a protectionist motive

in order to invalidate the statute as a protectionist measure.

“The principal focus of inquiry must be the practical opera-

tion of the statute.” Lewis v. BT Investment Managers, supra,

100 S.Ct. at 2016. A legitimate local purpose will not save a

statute whose effects are discriminatory, for “the evil of pro-

tectionism can reside in legislative means as well as legislative

ends.” Philadelphia v. New Jersey, supra, 437 U.S. at 626. A

different view would render the Commerce Clause meaning-

less, “save for the rare instance where a state artlessly dis-

closes an avowed purpose to discriminate against interstate

goods.” Dean Milk Co. v. City of Madison, supra, 340 U.S. at

364.

Thus even if the real purposes of the Act were to alleviate

solid waste problems, conserve natural resources and save

energy, it is invalid because it discriminates against inter-

state commerce in selecting the means to achieve those ends.

The out-of-state plastics industry was chosen to bear the bur-

den, and the only Minnesota enterprises affected were those

deriving a major portion of their business from interstate

commerce. ‘7

If the Act’s discriminatory purposes and effects do not alone

render it invalid, they at least place on the State the burden

of demonstrating that there are local benefits derived from

the Act and that no reasonable nondiscriminatory alternatives

exist. Hunt v. Washington State Apple Advertising Commis-

sion, supra, 482 U.S. at 353. This burden the State has not

met.

As discussed in detail in section I, the purported benefits of

the Act are illusory. The Act will aggravate, not ameliorate,

solid waste problems. It will not revive returnable milk bottles.

It will not conserve energy or natural resources.

Moreover, there is a variety of nondiscriminatory alterna-

tives. The most obvious is to ban both the paper carton and

the plastic container. The Minnesota Attorney General argues

17 Philadelphia and Hughes, along with West v. Kansas Natural

Gas Co., 221 U.S. 229 (1911) and Pennsylvania v. West Virginia,

262 U.S. 553 (1923), make it clear that a desire to protect the

environment or conserve natural resources provides no basis for

the erosion of established Commerce Clause criteria. As a solid

waste measure, for example, the Act must fall because it “imposes

on out-of-state commercial interests the full burden of conserving

the State’s remaining landfill space.” Philadelphia v. New Jersey,

supra, 437 U.S. at 628.

Decisions upholding actions with resource-related objectives are

easily distinguished. Cities Service Gas Co. v. Peerless Oil and

Gas Co., 340 U.S. 179 (1950), upheld an order which merely regu-

lated gas prices. In Reeves, Inc. v. Stake, 48 U.S.L.W. 4746 (June

17, 1980) the state acted in its proprietary capacity as a market

participant. In Exxon Corp. v. Governor of Maryland, 437 U.S.

117 (1978), the statute regulated only the ownership of gasoline

stations and would not alter the relative market shares of local

and out-of-state goods.

that this would create too much disruption. This argument

highlights the expediency of discriminatory legislation; it is

easy for legislators to choose remedies which do not create

burdens for their constituents. See L. Tribe, American Consti-

tutional Law, §§6-1, 6-5 (1978).

The legislature could also impose deposit requirements on

both containers, ban any container which cannot be recycled,

create requirements or incentives for recycling programs or

provide incentives for the use of refillables. Still another ap-

proach would be a comprehensive program for reviewing all

new forms of packaging, which is in fact the purpose of Min-

nesota’s Package Review Act (Minn. Stat. §116F.06). This

statute, which gives the Minnesota Pollution Control Agency

extensive powers to review new packages and containers, was

upheld by the Minnesota Supreme Court on the same day that

the instant case was decided. Can Manufacturers Institute,

Inc. v. Minnesota, supra. See Plastic Bans, Bottle Bills and

Comprehensive Container Legislation: Packaging Laws Get

Mixed Reviews in State Courts, 9 Environmental Law Re-

porter 10193 (Nov. 1979).

These alternatives are not perfect solutions. They would

impose local burdens and may therefore be unpopular and dif-

ficult to pass. Some of them might impose even greater bur-

dens on interstate commerce than the present statute. The

important distinction, however, is that each would create real

local benefits, and none would discriminate in this manner

against interstate commerce. And the alternatives need not

be perfect. Their imperfection is the “type of [imperfection]

that the national interest in the free flow of goods between

the states demands be tolerated.” Hunt v. Washington State

Apple Advertising Commission, supra, 432 U.S. at 354.

Finally, it must be noted that, to the extent that the Minne-

sota legislature may have intended to conserve energy, it has

chosen a means which the Commerce Clause has reserved to

the Congress. To be sure, Congress has solicited the coopera-

tion of the states in addressing energy and environmental

problems. But none of the federal statutes cited by the Solici-

tor General (Brief for the Uniivd States as Amicus Curiae,

pp. 2-4) encourages the states to save energy by banning each

other’s products. Minnesota is at best attempting to dictate

the economic and environmental policies of the gas- and oil-

producing states. Those states must supply their own reme-

dies. “One state may not put pressure of that sort upon others

to reform their economic [or environmental] standards,”

Baldwin v. G.A.F. Seelig, Inc., supra, 294 U.S. at 524, or “force

its own judgments” on such matters on other states “at the

pain of an absolute ban on the interstate flow of commerce.”

Great Atlantic and Pacific Tea Co., Inc. v. Cottrell, supra, 424

USS. at 380.

Our oil and gas are “of profound national importance.”

Hicklin v. Orbeck, 437 U.S. 518, 534 (1978). It is precisely for

this reason that if judgments are to be made about the uses

which may be made of these resources, they should be made

by Congress, not by the legislators of individual states whose

constituents are not affected by their actions.

It is, of course, a quite different thing if Congress

through its agents finds such restrictions upon interstate

commerce advance the national welfare, than if a locali-

ty is held free to impose them because it, judging its own

cause, finds them in the interest of local prosperity.

H. P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525, 543

(1949).18

Chaos would result if every state were permitted to dictate

the manner in which important natural resources found in

other states or within its own boundaries may be used.

We need only consider the consequences if each of the few

states that produce copper, lead, high-grade iron ore,

timber, cotton, oil or gas should decree that industries

located in that state shall have priority. What fantastic

rivalries and dislocations and reprisals would ensue if

such practices were begun!

Id. at 538-539.1°

If this statute is upheld, then another state may ban the sale

of nylon stockings, another may outlaw acrylic carpeting,

18 The unique function of the judiciary is thus particularly im-

portant in commerce cases. The judiciary plays an important

role in assessing the validity of interstate commerce regulation

by the states, because it may be the branch of government most

able to provide a check against excessive local assumption of

power. When a state legislature determines how much power it

has to affect interstate commerce, there may be no inner politi-

cal check on its action. The incentive to shift burdens to out-of-

state interests to which local politicians need not be responsive

may be sufficiently great to warrant closer examination of state

enactments in the commerce area than of state laws which

affect only the local population. When Congress has failed to

respond to such shifts by enacting remedial legislation, the

concept of the dormant commerce power allows the judiciary to

arbitrate the competing state and federal interstate interests.

Note, State Environmental Protection Legislation and the Com-

merce Clause, 87 Harv. L. Rev. 1762, 1777-1778 (1974).

19 It is no answer that Minnesota is not hoarding its own resources

but limiting its consumption of the resources of other states.

It does not matter that the State has shut the article of com-

merce inside the State in one case and outside the State in the

other. What is crucial is the attempt by one State to isolate

itself from a problem common to many by erecting a barrier

against the movement of interstate trade.

Philadelphia v. New Jersey, supra, 437 U.S. at 628.

while still another, asserting a shortage of wood,*° may re-

taliate by banning wood furniture and cardboard boxes.

“Pennsylvania might keep its coal, the Northwest its timber,

the mining States their minerals,” with the result that “em-

bargo may be retaliated by embargo, and commerce will be

halted at state lines.” West v. Kansas Natural Gas Co., supra,

note 17, 221 U.S. at 255. “[T]he door [will have] been opened

to rivalries and reprisals that were meant to be averted by

subjecting commerce between the states to the power of the

nation.” Baldwin v. G.A.F. Seelig, Inc., supra, 294 U.S. at 522.

In the words of Mr. Justice Cardozo:

The Constitution was framed under the dominion of a

political philosophy less parochial in range. It was framed

upon the theory that the peoples of the several states must

sink or swim together, and that in the long run, pros-

perity and salvation are in union and not division.

Id. at 528.

B. The Act imposes burdens on interstate commerce that

outweigh its putative benefits.

Even if the Court does not decide that the Act discriminates

or effects economic protectionism, the Act must fall under the

more flexible balancing test. It “cannot be justified as an inci-

dental burden necessitated by legitimate local concerns.”

Lewis v. BT Investment Managers, Inc., supra, 100 S.Ct. at

2019.

The benefit-burden analysis applied when nondiscrimina-

tory objectives are credibly advanced derives from Pike v.

Bruce Church, Ine., 397 U.S. 187, 142 (1970) :

20 Wood and paper shortages are real phenomena. See Wall St. J.,

July 30, 1979, at 12, col. 1 (East Coast ed.) The Minnesota At-

torney General and supporting amici seem to suggest that, be-

cause trees are renewable, they are in infinite supply.

Where the statute regulates even-handedly to effectuate

a legitimate local public interest, and its effects on inter-

state commerce are only incidental, it will be upheld un-

less the burden imposed on such commerce is clearly ex-

cessive in relation to the putative local benefits. [Cita-

tions.] If a legitimate local purpose is found, then the

question becomes one of degree. And the extent of the bur-

den that will be tolerated will of course depend on the na-

ture of the local interest involved, and on whether it could

be promoted as well with a lesser impact on interstate ac-

tivities.

In weighing the putative benefits against the burdens im-

posed by the statute, the Court must make a “delicate adjust-

ment of the conflicting state and federal claims.” H. P. Hood

& Sons, Inc. v. DuMond, supra, 336 U.S. at 553 (Black, J., dis-

senting). This requires more than a mere determination that

the legislation may further a matter of legitimate state con-

cern. The benefits must be weighed against the burdens on

commerce. Even in the field of safety, where unusual defer-

ence has been given to state determinations of benefits to be

achieved, Raymond Motor Transportation, Inc. v. Rice, 484

U.S. 429, 443-444 (1978), the Court has found benefits to be

outweighed by burdens. /d.; Bibb v. Navajo Freight Lines,

359 U.S. 520 (1959) ; Southern Pacific Co. v. Arizona, 325 U.S.

761 (1945). The protection afforded by the Commerce Clause

cannot be avoided by “simply invoking the convenient apolo-

getics of the police power.” Jd. at 780.

Nor is it sufficient for the State merely to hypothesize the

existence of local benefits. As was the case in Lewis and Hunt,

if the asserted benefits do not in fact exist, i.e., if it is not like-

ly that the statute will achieve its asserted purposes, then the

statute will fall. Furthermore, even if a legitimate local

interest will be served by the statute, it will not be sustained

if “there are means adequate to serve this interest that are

substantially less burdensome on commerce.” Great Atlantic

and Pacific Co., Inc. v. Cottrell, supra, 424 U.S. at 376-377.

As already discussed, the benefits of the Act are illusory ;

its asserted purposes will not be achieved. Effective, less bur-

densome alternative means to attain the purported objectives

do exist. And the burdens on commerce are substantial. Under

these circumstances the Act cannot withstand constitutional

challenge.

CONCLUSION

The recitation of undisputed constitutional] standards will

not resolve this case. Its resolution turns instead on the appli-

cation of those standards to the facts.

The Minnesota Attorney General equates rationality analy-

sis with legislative infallibility. The Constitution, however,

imposes limits on legislative action, and those limits have been

reached in this case.

Contrary to the assertions of the Minnesota Attorney Gen-

eral, this Court’s affirmance of the Minnesota decision will

not preclude a legislature from taking a step-by-step approach

to environmental problems. The legislature’s power to do so

is undisputed. The holding in this case is limited to its facts,

which show no such step taken, no credible basis upon which

to believe that the classification contained in the Act will

further its alleged purposes, and a political setting in which

the out-of-state plastics industry was easily sacrificed to local

industries and environmental proclamations.

Plaintiffs respectfully request the Court to affirm the deci-

sion of the Minnesota Supreme Court that the Act violates the

Equal Protection Clause of the Fourteenth Amendment or,

alternatively, to affirm that decision on the ground that the

Act contravenes the Commerce Clause.

Respectfully submitted,