Between a Rock and a Hard Place in Illinois: Constitutional Responses to Adverse Waste Facility Siting Decisions

The author undertakes a critical review of the role of public participation in the Illinois waste facility siting statute, concluding that the statute, as currently written, interpreted and implemented supplies only one demonstrable criterion from which county boards make siting decisions--public opposition. Recognizing that appeals from local siting denials are seldom fruitful for waste management developers, the author explores two constitutional responses to the Illinois siting scheme. First the author provides statutory and regulatory bases for application of preemption doctrine and further demonstrates that a basis for preemption of the Illinois statute may be forthcoming as Congress recognizes waste capacity shortfalls on the national level. Second, the author tracks the recent developments in Takings Clause cases and suggests that the judicial atmosphere may be right for a Fifth Amendment challenge to the siting statute