dissenting:
Carlson received a permit from the Environmental Protection Agency to develop a solid waste disposal site in an unincorporated area of Cook County. The issues in this case are framed by way of a counterclaim filed by the County which sought to enjoin Carlson from beginning any landfill operations unless and until he received a special use permit from the Cook County Board of Commissioners. The use permit is necessary pursuant to a Cook County zoning ordinance which requires such a permit for landfills subsequent to hearings and findings made by the Zoning Board of Appeals. The trial court dismissed the counterclaim.
The County, a home rule unit, derives its powers from the Ill. Const. 1970, art. VII, §6:
Powers of Home Rule Units (a) * * * Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt. (Emphasis added.)
Both Carlson and the County agree that the sole question is whether the application of Cook County zoning power to sanitary landfill operations sought to be conducted in Cook County is a matter “* * * pertaining to its government and affairs.” The resolution of this issue is dependent upon whether sanitary landfills are of regional or statewide, as opposed to local, concern.
Carlson relies principally on the cases of O’Connor v. City of Rockford (1972), 52 Ill. 2d 360, 288 N.E.2d 432, and Carlson v. Village of Worth (1976), 62 Ill. 2d 406, 343 N.E.2d 493. Carlson points out that O’Connor traced the legislative history of the Environmental Protection Act as it relates to the regulation of solid waste disposal, and that the O’Connor court observed that the general purpose of the Act as set out in section 2(b) was to “* * * establish a unified, state-wide program * * * to restore, protect and enhance the quality of the environment* * *.” (O’Connor, at 366.) O’Connor also states:
“In our opinion, to hold here that the city’s use of the proposed site as a landfill may be permitted only upon issuance of a conditional use permit by Winnebago County, or that the county, by reason of its zoning ordinance may prohibit such use, contravenes the clearly expressed legislative intent that such operations be conducted only upon issuance of a permit from the Environmental Protection Agency. By the enactment of the Environmental Control Act, the General Assembly has expressly declared the need for ‘a unified state-wide program’ and provided the means for issuance of appropriate permits under regulations promulgated after taking into account precisely the conflicting interests shown by this record.” O’Connor, at 367.
The supreme court commented on the O’Connor decision in Carlson-.
“The opinion in the O’Connor case reviewed the history of legislative efforts to control refuse disposal sites, and that history need not be repeated here. Shortly stated, it indicated that local regulation had proved unsatisfactory. The difficulties encountered resulted in the passage of the Environmental Protection Act, which contains the following legislative finding: ‘(ü) that because environmental damage does not respect political boundaries, it is necessary to establish a unified state-wide program for environmental protection and to cooperate fully with other States and with the United States in protecting the environment;* * *.’ (Ill. Rev. Stat. 1973, ch. 1111/2, par. 1002.) And the opinion of the appellate court in the present case pointed out that provisions which would have expressly reserved concurrent authority to local governmental units were deleted prior to passage of the Environmental Protection Act. 25 Ill. App. 3d 315, 322.” Carlson, at 409.
The supplemental opinion in Carlson stated that based on the Environmental Protection Act itself, its legislative history, and preceding legislation, the General Assembly intended to “exclude any authority of local political entities which would interfere with or frustrate the objective of establishing a unified state-wide system of environmental protection.” (Carlson, at 418.) Mr. Chief Justice Ward in his dissenting opinion notes that “* * * the question as to the exclusivity of the State’s authority has been settled by this opinion.” Carlson, at 426.
The County responds that regulation of sanitary landfills has a long history of local involvement and control and that such regulation has consistently and still does pertain to the local government and affairs of the County of Cook. That argument is bottomed on the provisions of the home rule article. The County relies on 7 Record of Proceedings, Sixth Illinois Constitutional Convention 1619 (hereinafter Proceedings). There the Local Government Report stated that the grant of local powers was to ensure that certain counties and cities receive the broadest possible range of powers to deal with problems facing them. Zoning and regulation of garbage have historically been subject to local control. It is interesting to note that in their opening brief on this point the County did not mention either O’Connor or Carlson. In their reply brief they assert that the O’Connor and Carlson decisions are “particularly unpersuasive” on the issue because they had not been presented with the home rule issue which is now before this court. Even more importantly, they contend, the basic underpinning of both O’Connor and Carlson is the acceptance of the General Assembly’s conclusions expressed in the Environmental Protection Act that solid waste disposal is a matter of statewide concern. The County submits that this is an abandonment of judicial power and an implied preemption of home rule authority.
I am not of the opinion that Carlson and O’Connor can be distinguished in the way the County attempts to distinguish them in their brief nor as the majority opinion does. Both the brief and the majority opinion posit the idea that the cases are distinguishable because neither O’Connor nor Carlson involved home rule units. Neither explained the significance of a home rule unit in this context. A home rule unit is a County that has an elected chief executive officer and any city, village or incorporated town of 25,000 people. Additionally, any other city, village or incorporated town less than that population can by referendum become a home rule unit. A home rule unit by referendum may elect not to be a home rule unit. (Ill. Const. 1970, art. VII, §6(a).) The arguments in favor of home rule units are many. The overall impetus for passage of the home rule provision was to increase the autonomy of cities and counties. (7 Proceedings 1614.) That increased authority, however, was only to the extent that it pertains to “its government and affairs.” The supreme court in O’Connor and Carlson has already decided that sanitary landfills do not pertain to “government and affairs” of local units of government.
The County attacks the O’Connor and Carlson opinions because they rely on the General Assembly’s conclusion, as expressed in the Environmental Protection Act, that solid waste disposal is a matter of statewide concern. The supreme court has directly ruled on this matter and it is not the function of this court to challenge that ruling. The contention that the supreme court has abandoned an important judicial power by accepting the conclusion of the General Assembly is without merit. The Environmental Protection Act is not determinative of whether conduct falls within the grant of home rule powers, it provides further evidence of the recognition of what is a matter of statewide concern. Des Plaines v. Chicago & North Western Ry. Co.
Two cases do deal with home rule units, Chicago & North Western Ry. Co. and Metropolitan Sanitary District v. City of Des Plaines (1976), 63 Ill. 2d 256, 347 N.E.2d 716. In Metropolitan Sanitary District the city of Des Plaines, a home rule unit, enacted an environmental ordinance requiring a permit before a sewage treatment plant could be constructed. The Metropolitan Sanitary District had already secured a permit from the Illinois Environmental Protection Agency for the construction and operation of a sewage plant and refused to apply for a city permit, contending that the compliance with the State permit requirement was sufficient. The court there said it would only consider whether the environmental regulation of a regional sewage treatment plant, serving a large area embracing numerous home rule municipalities, pertains to the government and affairs of the city of Des Plaines. The court found that it did not because the Metropolitan Sanitary District also serves six other municipalities, some of which are themselves home rule units and all of which could become so. The court in Metropolitan Sanitary District held that the application of the Des Plaines ordinance to a regional sewage treatment plant is not within the grant of the home rule power. The court reasoned that to permit a regional district to be regulated by a part of the region is incompatible with the purpose for which the regional district was created. The difficulty is compounded to the extent that future developments enable other parts of the region to adopt regulations which may be inconsistent.
The majority opinion finds Metropolitan Sanitary District distinguishable because “no local municipality within Cook County is attempting to regulate the County itself.” This is exactly the effect of the holding in the case at bar. The County may now regulate the State in the placement of sanitary landfills through its zoning laws.
The majority opinion in the instant case only speculates that the pollution that would emanate from what it calls, eschewing euphemisms, a garbage disposal site would be much more localized than that caused by a “large” sewage treatment plant.
In Chicago & North Western Ry. Co. the city of Des Plaines was a home rule unit which enacted a noise control ordinance. The Illinois Pollution Control Board had adopted certain regulations prescribing limitations of noise emissions pursuant to the authority contained in the Environmental Protection Act. The court found that noise pollution is a matter requiring regional, if not statewide, standards and controls. It found the attempt of the city of Des Plaines to regulate noise pollution emissions was not within the home rule power granted. The majority opinion in the instant case says that the Chicago & North Western Ry. Co. opinion serves no useful precedent where we are concerned with pollution which does not move from village to village. I cannot agree that that is a distinction. The significance of the Chicago & North Western Ry. Co. in the context of this case is that a home rule unit does not have authority to pass laws on environmental problems in matters of regional or statewide concern.
The majority opinion says that it “would adhere to the Supreme Court’s prior holding in City of Chicago v. Pollution Control Board.” The holding alluded to in that statement refers to that previously quoted portion of the majority opinion taken from the City of Chicago that “a local governmental unit may legislate concurrently with the General Assembly on environmental control.” I believe it is beyond the power of this court to so hold because of the express disavowal of that proposition in Carlson.
A substantial portion of the majority opinion is devoted to what it calls policy considerations to buttress its conclusions that the county zoning restrictions were applicable to the permit issued by the Environmental Protection Agency. That argument reiterates the philosophy of the majority that sanitary landfills are of local concern. That issue was laid to rest in O’Connor and Carlson.
The Carbon and O’Connor cases hold that sanitary landfills are matters of regional and statewide concern. Any doubt that those opinions were equally applicable to home rule units were resolved in Chicago & North Western Ry. Co. and Metropolitan Sanitary District. I would affirm the judgment of the trial court.