(dissenting).
While I am persuaded by the evidence cited by the majority which indicates that plastic nonrefillables are no worse, from an environmental standpoint, than paper non-refillables, I cannot agree that the plastic nonrefillables ban, struck down today, is not “rationally related to a legitimate state interest.” I view it as a constitutionally permissible “first step” in a pro-environmental effort on the part of the legislature.
The Court in New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976), upheld, per curiam, the constitutionality of a New Orleans ordinance prohibiting the sale of foodstuffs from pushcarts, except by vendors who had continually operated such a vending business within the French Quarter for 8 years. That classification effectively operated to disqualify all food vendors except two, and there was no reason to believe the two were more likely than any others to “preserve the traditions” of the French Quarter, the ordinance’s alleged purpose. To the charge that the classification was “a totally arbitrary and irrational method of achieving the city’s purpose,” the Supreme Court answered:
“ * * * rather than proceeding by the immediate and absolute abolition of all pushcart food vendors, the city could rationally choose initially to eliminate vendors of more recent vintage. This gradual approach to the problem is not constitutionally impermissible.” 427 U.S. at 305, 96 S.Ct. at 2517.
The court articulated the role of the judiciary with respect to legislative economic regulations as follows:
“States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude. Legislatures may implement their program step by step, Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), in such economic areas, adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations. See, e. g., Williamson v. Lee Optical Co., 348 U.S. 483, 488-489, 75 S.Ct. 461, 464-65, 99 L.Ed. 563 (1955). In short, the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines, see, e. g., Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423, 72 S.Ct. 405, 407, 96 L.Ed. 469 (1952); in the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment. See, e. g., Ferguson v. Skrupa, 372 U.S. 726, 732, 83 S.Ct. 1028, 1032, 10 L.Ed.2d 93 (1963).” 427 U.S. at 303-304, 96 S.Ct. at 2517.
Given such instruction by the highest court in the land, I fail to see how we can distinguish the milk container legislation struck down here from the pushcart Vendor prohibition upheld in New Orleans v. Dukes. Regardless of the environmental superiority, found by the majority, of plastic over paper containers, the legislature is free to use a “stepwise” approach, adopting only a partial solution to the waste problem. The legislature could rationally conclude that allowing the plastic nonrefillables to become entrenched in Minnesota would hin*88der future efforts to force the dairy industry to utilize more environmentally acceptable containers.
The majority concludes that “further action on the subject of milk containers * * by the Minnesota Legislature is uncertain, if not highly doubtful,” citing as evidence the fact that an earlier version of the bill had contained a provision banning paper nonrefillables as well, which provision was eventually removed. However, it is at least arguable that such evidence leads to precisely the opposite conclusion — the same conclusion which might be drawn from the following statements made by senators at the debates on the nonrefillables bill, transcribed and entered in the trial record as Exhibit J:
“Senator Spear: ‘ * * * It is true that our alternative now is not a returnable system in terms of milk bottles. Hopefully we are eventually going to be able to move to that kind of a system, but we are never going to move to a returnable system so long as we allow another nonreturnable system with all the investment and all of the vested interest that is going to involve to begin.’ ” Full Senate Floor Discussion, 70th Legislature, May 20, 1977.
“Senator Luther: * * the real direction that we should be headed in the state of Minnesota in terms of packaging, is a returnable system. * * * There will be arguments made here today about how the paperboard container is comparable to the throwaway plastic. That is not the issue that is before us. The issue before us is whether we should go into another throwaway plastic system that will be very, very difficult to convert from.’ ” Full Senate Floor Discussion, 70th Legislature, May 20, 1977.
The U.S. Supreme Court has frequently observed that a step-by-step approach in economic regulation is permissible, see, e. g., New Orleans v. Dukes, supra; Katzenbaeh v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), and cases cited therein, and has never required actual evidence that a legislature intends to take a further step in the near future in the relevant economic area being regulated. Here, however, it is at least fair to conclude from the legislative history that the Minnesota legislature indeed intended that the bill banning plastic nonrefillables would be a “first step” in the environmental effort. The U.S. Supreme Court’s cautions are well taken here; it is not for this court “to judge the wisdom or desirability of legislative determinations” in this area of economic regulation.
The majority opinion, in its discussion of the Ontario experience with a ban on all nonrefillable milk containers, suggests that such a total ban was actually detrimental to environmental efforts, pointing to evidence that the market share of refillables has dropped since the ban was enacted. Trial evidence established, however, that the plastic pouch is clearly superior from an environmental standpoint to both plastic and paper nonrefillables. Thus, while the measure perhaps did not have precisely the effect intended, it nevertheless had salutary environmental impact. To suggest that such a total ban would not benefit the environment is not only contrary to the evidence; it undermines any attempts on •the part of the legislature to proceed with “complete elimination of the evil,” an effort of which the plastic nonrefillables was but the first step.
Because I believe that Chapter 268, here declared unconstitutional, was precisely the type of regulation which the U.S. Supreme Court sanctioned in New Orleans v. Dukes, I respectfully dissent from this court’s holding that this measure denies equal protection. Having found that Chapter 268 withstands the equal protection challenge, I would further hold that it is not in violation of the commerce clause, Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 440, 98 S.Ct. 787, 793, 54 L.Ed.2d 664, 674 (1978), or the due process clause, Exxon Corp. v. Governor of Maryland, 437 U.S. 117,124-125, 98 S.Ct. 2207, 2213, 57 L.Ed.2d 91, 99 (1978); Federal Distillers, Inc. v. State, 304. Minn. 28, 38, 229 N.W.2d 144, 154 (1975), but is a constitutional exercise of legislative powers.