dissenting:
I cannot concur in the majority opinion which overrules a substantial part of the very recent opinion of this court in City of Chicago v. Pollution Control Board, 59 Ill.2d 484, and which not only prohibits non-home-rule units of local government from legislating on environmental matters but also casts serious doubt upon the authority of home-rule units to do so. If, as the majority holds, the legislature prior to the 1970 Constitution has by the enactment of the Environmental Protection Act declared environmental matters to be so exclusively of statewide concern as to deprive any local unit authority to act in the field, how can it later be contended under the new constitution that the same matters pertain to the government and affairs of local governmental home-rule units? See Const. 1970, art. VII, sec. 6(a).
Following a rather detailed analysis of the environmental provisions of the 1970 Constitution and after also considering the Environmental Protection Act, we concluded in City of Chicago that local governmental units may legislate concurrently with the General Assembly on environmental control. The majority in this case passes off this holding as “dictum.” In that case there were several interrelated issues. The City of Chicago had enacted an environmental ordinance and permits had been issued by the City’s Department of Environmental Control for the operation of the disposal facilities by the city. The State had argued that the city had no authority to legislate in this field contending that the authority to do so was vested exclusively in the State. We held that it was not. I am not so concerned with whether this holding is dictum as I am with the correctness of the conclusion.
I also do not find that it is impossible to reconcile “the dictum” of City of Chicago with the holding in O’Connor v. City of Rockford, 52 Ill.2d 360, a case which I fear has been too broadly read. Both the majority opinion and the appellate court opinion in this case rely on O’Connor. However, that case involved only a conflict between a permit issued by the State agency involved and a local zoning ordinance. It was not the import of that case that a unit of local government could not legislate in the field of environmental control. O’Connor held only that the county, by reason of its zoning ordinance, could not prohibit the use of the land for a landfill operation which had been authorized by a permit issued by the State agency. We noted in that case that the Pollution Control Board under section 27 of the Act (Ill. Rev. Stat. 1973, ch. 111½, par. 1027) in promulgating regulations pursuant to which the permit is to be issued is required to take into account the existing physical conditions, the character of the area involved, including the character of surrounding land uses and the zoning classification. Thus the very conflict that was in issue in O’Connor was required to be considered by the State agency issuing the permit before the permit was issued.
In the case before us we are not dealing with a zoning ordinance. Involved in this case, as in City of Chicago, is a comprehensive local ordinance 23 pages in length. It covers in detail the use and operation of solid waste disposal sites and sanitary landfills and only incidentally mentions zoning requirements in two brief sentences. The trial court decided this case on a motion for summary judgment. The pleadings, the order of the court, the statements of counsel in the trial court and the comments of the trial judge all indicate that the zoning ordinance of the village is not involved in this case. Thus, we are not concerned with the narrow holding of O’Connor. We are concerned with the broader question of whether local governmental units can legislate in the field of environmental protection.
The appellate court and the majority opinion conclude that the General Assembly by the enactment of the Environmental Protection Act has preempted local regulation. It must be remembered that the Environmental Protection Act was enacted in 1970 prior to the effective date of our Constitution. In City of Chicago, we found that it was the intent of the constitutional convention as reflected in the committee reports that if the State legislates in the environmental field, but does not express exclusivity, local governmental units retain the power to act concurrently. If we accept the majority’s view that the Environmental Protection Act prohibits local governmental units from legislating in this field then the act is “contrary to, or inconsistent with” the intended import of the environmental provision in the Constitution and contrary to the intent expressed in the convention. Thus under section 9 of the transition schedule of the Constitution, any preemption that may have been implied in the Environmental Protection Act in 1970 did not survive after the effective date of our new Constitution on July 1, 1971.
As observed in City of Chicago, section 2(a) (iv) of the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111½, par. 1002(a)(iv)) states that the General Assembly finds that it is the obligation of the State government “to encourage and assist local governments to adopt and implement environmental-protection programs consistent with this Act.” It is true that this is not a specific grant of authority to a city to legislate in this field but it does express an intent that the State is not to be the sole occupant of the field. The authority of a non-home-rule unit to legislate in this field is found in its police powers. This court stated in Montgomery v. City of Galva, 41 Ill.2d 562, at 564: “The right of a municipality under its police power to regulate the collection and disposition of garbage and refuse for the promotion of public health has been recognized in the case law. [Citations.] ”
Thus in this case the defendant had the authority to enact the ordinance regardless of the absence of a specific grant in the Environmental Protection Act. This authority is subject to constitutional limitations as expressed in the constitutional proceedings that local regulation must conform to the minimum standards established by the State. (See City of Chicago v. Pollution Control Board, 59 Ill.2d 484, at 488-489.) The ordinance in this case complies with this requirement by specifically providing that where the provisions of the ordinance are either more restrictive or less restrictive than comparable conditions imposed by other provisions of any applicable law, rule or regulation, the more restrictive provisions (those which impose higher standards or requirements) shall govern.
Summarizing, O’Connor involved only a conflict between a local zoning ordinance and a permit issued by a State agency and is not relevant to the issues in this case. We are here concerned with a local ordinance regulating the use and operation of solid waste disposal sites. The authority to enact such an ordinance stems from the village’s police power exercised for the promotion and protection of public health. The ordinance does not attempt to exclusively occupy the field but provides that its requirements shall conform to the minimum standards established by law or regulation. The intent of the framers of the Constitution was that the State and local governmental units could legislate concurrently on environmental matters. I think the decision of this court in City of Chicago is controlling and should be followed.