OCTOBER TERM, 1991
Syllabus
CHEMICAL WASTE MANAGEMENT, INC.
v. HUNT, GOVERNOR OF
ALABAMA, ET AL.
CERTIORARI TO THE SUPREME COURT OF ALABAMA No. 91-471. Argued
April 21, 1992-Decided June 1, 1992
Petitioner, Chemical Waste Management, Inc., operates a
commercial hazardous waste land disposal facility in Emelle,
Alabama, that receives both in-state and out-of-state wastes. An
Alabama Act imposes,
inter alia, a fee on hazardous wastes
disposed of at in-state commercial facilities, and an additional
fee on hazardous wastes generated outside, but disposed of inside,
the State. Petitioner filed suit in state court, requesting
declaratory relief against respondent state officials and seeking
to enjoin the Act's enforcement. The trial court declared, among
other things, that the additional fee violated the Commerce Clause,
finding that the only basis for the fee is the waste's origin. The
State Supreme Court reversed, holding that the fee advanced
legitimate local purposes that could not be adequately served by
reasonable nondiscriminatory alternatives.
Held:
1. Alabama's differential treatment of out-of-state waste
violates the Commerce Clause. Pp.339-349.
(a) No State may attempt to isolate itself from a problem common
to the several States by raising barriers to the free flow of
interstate commerce.
Philadelphia v.
New Jersey,
437 U. S. 617;
Fort Gratiot Sanitary Landfill, Inc. v.
Michigan Dept. of
Natural Resources, post, p. 353. The State Act's additional fee
facially discriminates against hazardous waste generated outside
Alabama, and the Act has plainly discouraged the full operation of
petitioner's facility. Such a burdensome tax imposed on interstate
commerce alone is generally forbidden and is typically struck down
without further inquiry. However, here the State argues that the
additional fee serves legitimate local purposes. Pp. 339-343.
(b) Alabama has not met its burden of showing the unavailability
of nondiscriminatory alternatives adequate to preserve the local
interests at stake. See
Hunt v.
Washington State Apple
Advertising Comm'n, 432 U. S. 333, 353.
Alabama's concern about the volume of waste entering the Emelle
facility could be alleviated by less discriminatory means-such as
applying an additional fee on all hazardous waste disposed of
within Alabama, a per-mile tax on all vehicles transporting such
waste across state roads, or an evenhanded cap on the total
ton-
335
nage landfilled at Emelle-which would curtail volume from all
sources. Additionally, any concern touching on environmental
conservation and Alabama citizens' health and safety does not vary
with the waste's point of origin, and the State has the power to
monitor and regulate more closely the transportation and disposal
of all hazardous waste within its borders. Even possible future
financial and environmental risks to be borne by Alabama do not
vary with the waste's State of origin in a way allowing foreign,
but not local, waste to be burdened. Pp. 343-346.
(c) This Court's decisions regarding quarantine laws do not
counsel a different conclusion. The additional fee may not
legitimately be deemed a quarantine law because Alabama permits
both the generation and landfilling of hazardous waste within its
borders and the importation of additional hazardous waste.
Moreover, the quarantine laws upheld by this Court "did not
discriminate against interstate commerce as such, but simply
prevented traffic in noxious articles, whatever their origin."
Philadelphia v.
New Jersey, supra, at 629. This
Court's decision in
Maine v.
Taylor, 477 U. S. 131-upholding a
state ban on the importation of baitfish after Maine showed that
such fish were subject to parasites foreign to in-state baitfish
and that there were no less discriminatory means of protecting its
natural resources-likewise offers no respite to Alabama, since here
the hazardous waste is the same regardless of its point of origin
and adequate means other than overt discrimination meet Alabama's
concerns. Pp. 346-348.
2. On remand the Alabama Supreme Court must consider the
appropriate relief to petitioner. See,
e. g., McKesson Corp.
v.
Division of Alcoholic Beverages and Tobacco, Fla. Dept. of
Business Regulations, 496 U. S. 18, 31. Pp.
348-349.
584 So. 2d 1367, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which
BLACKMUN, STEVENS, O'CONNOR, SCALIA, KENNEDY, SOUTER, and THOMAS,
JJ., joined. REHNQUIST, C. J., filed a dissenting opinion,
post, p. 349.
Andrew
J. Pincus argued the cause for petitioner. With
him on the briefs were Kenneth S. Geller, Evan M. Tager, Fournier
J. Gale
III, H. Thomas Wells, Jr., James T. Banks, and John
T. Van Gessel.
Bert S. Nettles argued the cause for respondents. With him on
the brief were William D. Little, Assistant Attorney General of
Alabama, William D. Coleman, Jim B. Grant, Jr.,
J. Wade
Hope, Alton B. Parker, Jr.,
J. Mark Hart, and Mark D.
Hess.
336
Edwin S. Kneedler argued the cause for the United States as
amicus curiae urging reversal. On the brief were Solicitor General
Starr, Acting Assistant Attorney General Hartman, Deputy Solicitor
General Wallace, Harriet S. Shapiro, Peter R. Steen land, Jr., Anne
S. Almy, Louise F. Milkman, and Gerald H. Yamada.*
JUSTICE WHITE delivered the opinion of the Court. Alabama
imposes a hazardous waste disposal fee on hazardous wastes
generated outside the State and disposed of at a commercial
facility in Alabama. The fee does not apply to such waste having a
source in Alabama. The Alabama
*Briefs of amici curiae urging reversal were filed for American
Trucking Associations, Inc., by Daniel R. Barney, Robert Digges,
Jr., and Walter Hellerstein; and for the Hazardous Waste Treatment
Council et al. by Stuart H. Newberger, Ridgway M. Hall, Jr.,
Clifton S. Elgarten, David Case, and Bruce Parker.
Briefs of
amici curiae urging affirmance were filed for
the State of New York by
Robert Abrams, Attorney General,
Jerry Boone, Solicitor General, and
David A. Munro,
Assistant Attorney General; for the State of South Carolina et al.
by
T. Travis Medlock, Attorney General of South Carolina,
Edwin E. Evans, Chief Deputy Attorney General,
James
Patrick Hudson, Deputy Attorney General,
Kenneth P.
Woodington, Senior Assistant Attorney General,
Treva G.
Ashworth, Senior Assistant Attorney General,
Walton
J. McLeod III, Jacquelyn S.
Dickman, Samuel L.
Finklea III, Charles F.
Lettow, and
Matthew D.
Slater, Robert T. Stephen, Attorney General of Kansas,
Paul
Van Dam, Attorney General of Utah, and
Richard P.
Ieyoub, Attorney General of Louisiana; for the National
Governors' Association et al. by
Richard Ruda and
Michael G.
Dzialo; and for the State of Ohio et al.
by
Lee Fisher, Attorney General of Ohio,
Mary Kay
Smith, Assistant Attorney General, and
Nancy J.
Miller, Chris Gorman, Attorney General of Kentucky, and
Stan Cox, Assistant Attorney General,
Linley E.
Pearson, Attorney General of Indiana,
Robert T. Stephan,
Attorney General of Kansas,
Richard P. Ieyoub, Attorney
General of Louisiana,
Frank J. Kelley,
Attorney General of Michigan,
Tom Udall, Attorney General of
New Mexico,
Mark W Barnett, Attorney General of South
Dakota,
Paul Van Dam, Attorney General of Utah,
Joseph B.
Meyer, Attorney General of Wyoming, and
Charles W
Burson, Attorney General of Tennessee.
337
Supreme Court held that this differential treatment does not
violate the Commerce Clause. We reverse.
I
Petitioner, Chemical Waste Management, Inc., a Delaware
corporation with its principal place of business in Oak Brook,
Illinois, owns and operates one of the Nation's oldest commercial
hazardous waste land disposal facilities, located in Emelle,
Alabama. Opened in 1977 and acquired by petitioner in 1978, the
Emelle facility is a hazardous waste treatment, storage, and
disposal facility operating pursuant to permits issued by the
Environmental Protection Agency (EP A) under the Resource
Conservation and Recovery Act of 1976 (RCRA), 90 Stat. 2795, as
amended, 42 U. S. C. § 6901
et seq., and the Toxic
Substances Control Act, 90 Stat. 2003, as amended, 15 U. S. C. §
2601
et seq. (1988 ed. and Supp. II), and by the State of
Alabama under Ala. Code § 22-30-12(i) (1990). Alabama is 1 of only
16 States that have commercial hazardous waste landfills, and the
Emelle facility is the largest of the 21 landfills of this kind
located in these 16 States. Brief for National Governors' Assn. et
al. as
Amici Curiae 3, citing E. Smith, EI Digest 26-27
(Mar. 1992).
The parties do not dispute that the wastes and substances being
landfilled at the Emelle facility "include substances that are
inherently dangerous to human health and safety and to the
environment. Such waste consists of ignitable, corrosive, toxic and
reactive wastes which contain poisonous and cancer causing
chemicals and which can cause birth defects, genetic damage,
blindness, crippling and death." 1 584
1 As used in RCRA, 42 U. S. C. § 6903(5), the term "hazardous
waste" means:
"a solid waste, or combination of solid wastes, which because of
its quantity, concentration, or physical, chemical, or infectious
characteristics may-
"(A) cause, or significantly contribute to an increase in
mortality or an increase in serious irreversible, or incapacitating
reversible, illness; or
338
So. 2d 1367, 1373 (Ala. 1991). Increasing amounts of out-ofstate
hazardous wastes are shipped to the Emelle facility for permanent
storage each year. From 1985 through 1989, the tonnage of hazardous
waste received per year has more than doubled, increasing from
341,000 tons in 1985 to 788,000 tons by 1989. Of this, up to 90% of
the tonnage permanently buried each year is shipped in from other
States.
Against this backdrop Alabama enacted Act No. 90-326 (Act). Ala.
Code §§22-30B-l to 22-30B-18 (1990 and Supp. 1991). Among other
provisions, the Act includes a "cap" that generally limits the
amount of hazardous wastes or substances2 that may be disposed of
in any i-year period, and the amount of hazardous waste disposed of
during the first year under the Act's new fees becomes the
permanent ceiling in subsequent years. Ala. Code § 22-30B-2.3
(1990). The cap applies to commercial facilities that dispose of
over 100,000 tons of hazardous wastes or substances per year, but
only the Emelle facility, as the only commercial facility operating
within Alabama, meets this description. The Act also imposes a
"base fee" of $25.60 per ton on all hazardous wastes and substances
disposed of at commercial facilities, to be paid by the operator of
the facility. Ala. Code § 2230B-2(a) (Supp. 1991). Finally, the Act
imposes the "additional fee" at issue here, which states in
full:
"For waste and substances which are generated outside of Alabama
and disposed of at a commercial site for
"(B) pose a substantial present or potential hazard to human
health or the environment when improperly treated, stored,
transported, or disposed of, or otherwise managed."
RCRA directs the EPA to establish a comprehensive "cradle to
grave" system regulating the generation, transport, storage,
treatment, and disposal of hazardous wastes, §§ 6921-6939b, which
includes identification and listing of hazardous wastes, § 6921. At
present, there are more than 500 such listed wastes. See 40 CFR pt.
261, subpt. D (1991).
2 "Hazardous substance(s)" and "hazardous waste(s)" are defined
terms in the Act, §§22-30B-1(3) and 22-30B-1(4), but these
definitions largely parallel the meanings given under federal
law.
339
the disposal of hazardous waste or hazardous substances in
Alabama, an additional fee shall be levied at the rate of $72.00
per ton." § 22-30B-2(b).
Petitioner filed suit in state court requesting declaratory
relief against respondents and seeking to enjoin enforcement of the
Act. In addition to state-law claims, petitioner contended that the
Act violated the Commerce, Due Process, and Equal Protection
Clauses of the United States Constitution, and was pre-empted by
various federal statutes. The trial court declared the base fee and
the cap provisions of the Act to be valid and constitutional; but,
finding the only basis for the additional fee to be the origin of
the waste, the trial court declared it to be in violation of the
Commerce Clause. App. to Pet. for Cert. 83a-88a. Both sides
appealed. The Alabama Supreme Court affirmed the rulings concerning
the base fee and cap provisions but reversed the decision regarding
the additional fee. The court held that the fee at issue advanced
legitimate local purposes that could not be adequately served by
reasonable nondiscriminatory alternatives and was therefore valid
under the Commerce Clause. 584 So. 2d, at 1390.
Chemical Waste Management, Inc., petitioned for writ of
certiorari, challenging all aspects of the Act. Because of the
importance of the federal question and the likelihood that it had
been decided in a way conflicting with applicable decisions of this
Court, this Court's Rule 10.1(c), we granted certiorari limited to
petitioner's Commerce Clause challenge to the additional fee. 502
U. S. 1070 (1992). We now reverse.
II
No State may attempt to isolate itself from a problem common to
the several States by raising barriers to the free flow
340
of interstate trade.3 Today, in
Fort Gratiot Sanitary
Landfill, Inc. v.
Michigan Dept. of Natural Resources,
post, p. 353, we have also considered a Commerce Clause
challenge to a Michigan law prohibiting private landfill operators
from accepting solid waste originating outside the county in which
their facilities operate. In striking down that law, we adhered to
our decision in
Philadelphia v.
New Jersey, 437 U. S.
617 (1978), where we found New Jersey's prohibition of solid waste
from outside that State to amount to economic protectionism barred
by the Commerce Clause:
"'[T]he evil of protectionism can reside in legislative means as
well as legislative ends. Thus, it does not matter whether the
ultimate aim of ch. 363 is to reduce the waste disposal costs of
New Jersey residents or to save remaining open lands from
pollution, for we assume New Jersey has every right to protect its
residents'
3 The Alabama Supreme Court assumed that the disposal of
hazardous waste constituted an article of commerce, and the State
does not explicitly argue here to the contrary. In
Fort Gratiot
Sanitary Landfill, Inc. v.
Michigan Dept. of Natural
Resources, post, at 359, we have reaffirmed the idea that
"[s]olid waste, even if it has no value, is an article of
commerce." As stated in
Philadelphia v.
New Jersey,
437 U. S.
617,622-623 (1978): "All objects of interstate trade merit
Commerce Clause protection; none is excluded by definition at the
outset .... Just as Congress has power to regulate the interstate
movement of these wastes, States are not free from constitutional
scrutiny when they restrict that movement." The definition of
"hazardous waste" makes clear that it is simply a grade of solid
waste, albeit one of particularly noxious and dangerous
propensities, see n. 1,
supra, but whether the business
arrangements between outof-state generators of hazardous waste and
the Alabama operator of a hazardous waste landfill are viewed as
"sales" of hazardous waste or "purchases" of transportation and
disposal services, "the commercial transactions unquestionably have
an interstate character. The Commerce Clause thus imposes some
constraints on [Alabama's] ability to regulate these transactions."
Fort Gratiot Sanitary Landfill, post, at 359. See
National Solid Wastes Management Assn. v.
Alabama Dept.
of Environmental Mgmt., 910 F.2d
713, 718-719 (CAll 1990), modified,
924 F.2d
1001, cert. denied, 501 U. S. 1206 (1991).
341
pocketbooks as well as their environment. And it may be assumed
as well that New Jersey may pursue those ends by slowing the flow
of
all waste into the State's remaining landfills, even
though interstate commerce may incidentally be affected. But
whatever New Jersey's ultimate purpose, it may not be accompanied
by discriminating against articles of commerce coming from outside
the State unless there is some reason, apart from their origin, to
treat them differently. Both on its face and in its plain effect,
ch. 363 violates this principle of nondiscrimination.
"'The Court has consistently found parochial legislation of this
kind to be constitutionally invalid, whether the ultimate aim of
the legislation was to assure a steady supply of milk by erecting
barriers to allegedly ruinous outside competition,
Baldwin
v. G.
A. F. Seelig, Inc., 294 U. S. [511,] 522-524 [(1935)];
or to create jobs by keeping industry within the State,
Foster-Fountain Packing Co. v.
Haydel, 278 U. S. 1, 10 [(1928)];
Johnson v.
Haydel, 278 U. S. 16 [(1928)];
Toomer v.
Witsell, 334 U. S. [385,] 403-404 [(1948)];
or to preserve the State's financial resources from depletion by
fencing out indigent immigrants,
Edwards v.
California, 314 U. S. 160, 173174
[(1941)].'"
Fort Gratiot Sanitary Landfill, post, at 360
(quoting
Philadelphia v.
New Jersey, supra, at
626-627).
To this list may be added cases striking down a tax
discriminating against interstate commerce, even where such tax was
designed to encourage the use of ethanol and thereby reduce harmful
exhaust emissions,
New Energy Co. of Ind. v.
Limbach,
486 U. S. 269,
279 (1988), or to support inspection of foreign cement to ensure
structural integrity,
Hale v.
Bimco Trading, Inc.,
306 U. S. 375,
379-380 (1939). For in all of these cases, "a presumably legitimate
goal was sought to be achieved by the illegitimate means of
isolating the
342
State from the national economy."
Philadelphia v.
New
Jersey, supra, at 627.
The Act's additional fee facially discriminates against
hazardous waste generated in States other than Alabama, and the Act
overall has plainly discouraged the full operation of petitioner's
Emelle facility.4 Such burdensome taxes imposed on interstate
commerce alone are generally forbidden: "[A] State may not tax a
transaction or incident more heavily when it crosses state lines
than when it occurs entirely within the State."
Armco Inc.
v.
Hardesty, 467 U. S. 638, 642
(1984); see also
Walling v.
Michigan, 116 U. S. 446, 455
(1886); Guy v.
Baltimore, 100 U. S. 434, 439
(1880). Once a state tax is found to discriminate against
out-of-state commerce, it is typically struck down without further
inquiry. See,
e. g., Westinghouse Electric Corp. v.
Tully, 466 U.
S. 388, 406-407 (1984);
Maryland v.
Louisiana,
451 U. S. 725,
759760 (1981);
Boston Stock Exchange v.
State Tax
Comm'n, 429 U. S.
318, 336-337 (1977).
The State, however, argues that the additional fee imposed on
out-of-state hazardous waste serves legitimate local purposes
related to its citizens' health and safety. Because the additional
fee discriminates both on its face and in practical effect, the
burden falls on the State "to justify it both in terms of the local
benefits flowing from the statute and the unavailability of
nondiscriminatory alternatives adequate to preserve the local
interests at stake."
Hunt v.
Washington State Apple
Advertising Comm'n, 432 U. S. 333, 353
(1977); see also
Fort Gratiot Sanitary Landfill, post, at
359;
New Energy Co., supra, at 278-279. "At a minimum such
facial discrimination invokes the strictest scrutiny of any
purported legitimate local purpose and of the absence of
nondis-
4 The Act went into effect July 15, 1990. The volume of
hazardous waste buried at the Emelle facility fell dramatically
from 791,000 tons in 1989 to 290,000 tons in 1991.
343
criminatory alternatives."
Hughes v.
Oklahoma,
441 U. S. 322,
337 (1979).5
The State's argument here does not significantly differ from the
Alabama Supreme Court's conclusions on the legitimate local
purposes of the additional fee imposed, which were:
"The Additional Fee serves these legitimate local purposes that
cannot be adequately served by reasonable nondiscriminatory
alternatives: (1) protection of the health and safety of the
citizens of Alabama from toxic substances; (2) conservation of the
environment and the state's natural resources; (3) provision for
compensatory revenue for the costs and burdens that out-of-state
waste generators impose by dumping their hazardous waste in
Alabama; (4) reduction of the overall flow of wastes traveling on
the state's highways, which flow creates a great risk to the health
and safety of the state's citizens." 584 So. 2d, at 1389.
These may all be legitimate local interests, and petitioner has
not attacked them. But only rhetoric, and not explanation, emerges
as to why Alabama targets
only interstate hazardous waste to
meet these goals. As found by the trial court, "[a]lthough the
Legislature imposed an additional fee of $72.00 per ton on waste
generated outside Alabama, there
5 To some extent the State attempts to avail itself of the more
flexible approach outlined in,
e. g., Brown-Forman Distillers
Corp. v.
New York State Liquor Authority, 476 U. S. 573, 579
(1986), and
Pike v.
Bruce Church, Inc., 397 U. S. 137, 142
(1970), but this lesser scrutiny is only available "where other
legislative objectives are credibly advanced
and there is
no patent discrimination against interstate trade."
Philadelphia v.
New Jersey, 437 U. S., at 624
(emphasis added). We find no room here to say that the Act presents
"effects upon interstate commerce that are only incidental,"
ibid., for the Act's additional fee on its face targets
only out-of-state hazardous waste. While no "clear line"
separates close cases on which scrutiny should apply, "this is not
a close case."
Wyoming v.
Oklahoma, 502 U. S. 437, 455, n. 12
(1992).
344
is absolutely no evidence before this Court that waste generated
outside Alabama is more dangerous than waste generated in Alabama.
The Court finds under the facts of this case that the only basis
for the additional fee is the origin of the waste." App. to Pet.
for Cert. 83a-84a. In the face of such findings, invalidity under
the Commerce Clause necessarily follows, for "whatever [Alabama's]
ultimate purpose, it may not be accomplished by discriminating
against articles of commerce coming from outside the State unless
there is some reason, apart from their origin, to treat them
differently."
Philadelphia v.
New Jersey, 437 U. S.,
at 626-627; see
New Energy Co., 486 U. S., at 279-280. The
burden is on the State to show that "the
discrimination is
demonstrably justified by a valid factor unrelated to economic
protectionism,"6
Wyoming v.
Oklahoma, 502 U. S. 437, 454 (1992)
(emphasis added), and it has not carried this burden. Cf.
Fort
Gratiot Sanitary Landfill, post, at 361.
Ultimately, the State's concern focuses on the volume of the
waste entering the Emelle facility.7 Less discriminatory
6 The Alabama Supreme Court found no "economic protectionism"
here, and thus purported to distinguish
Philadelphia v.
New Jersey, based on its conclusions that the legislature
was motivated by public health and environmental concerns. 584 So.
2d 1367,1388-1389 (1991). This narrow focus on the intended
consequence of the additional fee does not conform to our
precedents, for "[a] finding that state legislation constitutes
'economic protectionism' may be made on the basis of either
discriminatory purpose, see
Hunt v.
Washington Apple
Advertising Comm'n, 432 U. S. 333, 352-353
(1977), or discriminatory effect, see
Philadelphia v.
New
Jersey, supra." Bacchus Imports, Ltd. v.
Dias, 468 U. S. 263, 270
(1984). The "virtually
per se rule of invalidity,"
Philadelphia v.
New Jersey, supra, at 624, applies
"not only to laws motivated solely by a desire to protect local
industries from out-of-state competition, but also to laws that
respond to legitimate local concerns by discriminating arbitrarily
against interstate trade."
Maine v.
Taylor, 477 U. S. 131, 148, n. 19
(1986).
7 "The risk created by hazardous waste and other similarly
dangerous waste materials is proportional to the
volume of
such waste materials present, and may be controlled by controlling
that volume." Brief for Respondents 38 (citation omitted; emphasis
in original).
345
alternatives, however, are available to alleviate this concern,
not the least of which are a generally applicable per-ton
additional fee on
all hazardous waste disposed of within
Alabama, cf.
Commonwealth Edison Co. v.
Montana,
453 U. S. 609,
619 (1981), or a per-mile tax on
all vehicles transporting
hazardous waste across Alabama roads, cf.
American Trucking
Assns., Inc. v.
Scheiner, 483 U. S. 266, 286
(1987), or an evenhanded cap on the total tonnage landfilled at
Emelle, see
Philadelphia v.
New Jersey, supra, at
626, which would curtail volume from all sources.8 To the extent
Alabama's concern touches environmental conservation and the health
and safety of its citizens, such concern does not vary with the
point of origin of the waste, and it remains within the State's
power to monitor and regulate more closely the transporta-
8 The State asserts: "An equal fee, at any level, would
necessarily fail to serve the State's purpose. An equal fee high
enough to provide any significant deterrent to the importation of
hazardous waste for landfilling in the State would amount to an
attempt by the State to avoid its responsibility to deal with its
own problems, by tending to cause in-state waste to be exported for
disposal. An equal fee not so high as to amount to an attempt to
force Alabama's own problems to be borne by citizens of other
states would fail to provide any significant reduction in the
enormous volumes of imported hazardous waste being dumped in the
State. At the point where an equal fee would become effective to
serve the State's purpose in protecting public health and the
environment from uncontrolled volumes of imported waste, that equal
fee would also become an avoidance of the State's responsibility to
deal with its own waste problems."
Id., at 46. These
assertions are without record support and in any event do not
suffice to validate plain discrimination against interstate
commerce. See
New Energy Co. of Ind. v.
Limbach,
486 U. S. 269,
280 (1988);
Hale v.
Bimco Trading, Inc., 306 U. S. 375, 380
(1939): "That no Florida cement needs any inspection while all
foreign cement requires inspection at a cost of fifteen cents per
hundredweight is too violent an assumption to justify the
discrimination here disclosed." The additional fee is certainly not
a " 'last ditch' attempt" to meet Alabama's expressed purposes
"after nondiscriminatory alternatives have proved unfeasible. It is
rather a choice of the most discriminatory [tax] even though
nondiscriminatory alternatives would seem likely to fulfill the
State's purported legitimate local purpose more effectively."
Hughes v.
Oklahoma, 441 U. S. 322, 338
(1979).
346
tion and disposal of
all hazardous waste within its
borders. Even with the possible future financial and environmental
risks to be borne by Alabama, such risks likewise do not vary with
the waste's State of origin in a way allowing foreign, but not
local, waste to be burdened.9 In sum, we find the additional fee to
be "an obvious effort to saddle those outside the State" with most
of the burden of slowing the flow of waste into the Emelle
facility.
Philadelphia v.
New Jersey, 437 U. S., at
629. "That legislative effort is clearly impermissible under the
Commerce Clause of the Constitution."
Ibid.
Our decisions regarding quarantine laws do not counsel a
different conclusion.10 The Act's additional fee may not
legitimately be deemed a quarantine law because Alabama permits
both the generation and landfilling of hazardous
9The State presents no argument here, as it did below, that the
additional fee makes out-of-state generators pay their "fair share"
of the costs of Alabama waste disposal facilities, or that the
additional fee is justified as a "compensatory tax." The trial
court rejected these arguments, App. to Pet. for Cert. 88a, n. 6.,
finding the former foreclosed by
American Trucking Assns.,
Inc. v.
Scheiner, 483 U. S. 266, 287-289
(1987), and the latter to be factually unsupported by a requisite
"substantially equivalent" tax imposed solely on in-state waste, as
required by,
e. g., Tyler Pipe Industries, Inc. v.
Washington State Dept. of Revenue, 483 U. S. 232, 242244
(1987). Various
amici assert that the discrimination patent
in the Act's additional fee is consistent with congressional
authorization. We pretermit this issue, for it was not the basis
for the decision below and has not been briefed or argued by the
parties here.
10 The State collects and refers to the following decisions,
inter alia, as "quarantine cases"; Clason v. Indiana,
306 U. S. 439 (1939);
Mintz v. Baldwin,
289
U. S. 346 (1933); Oregon- Washington Railroad & Navigation
Co. v. Washington,
270
U. S. 87 (1926); Sligh v. Kirkwood,
237 U. S. 52 (1915);
Asbell v. Kansas,
209
U. S. 251 (1908); Reid v. Colorado,
187 U. S. 137 (1902);
Compagnie Francaise de Navigation a Vapeur v. Louisiana Bd. of
Health,
186 U. S.
380 (1902); Smith v. St. Louis & Southwestern R. Co.,
181 U. S. 248
(1901); Rasmussen v. Idaho,
181 U. S. 198 (1901);
Missouri, K. & T. R. Co. v. Haber,
169 U. S. 613 (1898);
Bowman v. Chicago & Northwestern R. Co.,
125 U. S. 465 (1888);
Railroad Co. v. Husen,
95 U. S. 465 (1878).
347
waste within its borders and the importation of still more
hazardous waste subject to payment of the additional fee. In any
event, while it is true that certain quarantine laws have not been
considered forbidden protectionist measures, even though directed
against out-of-state commerce, those laws "did not discriminate
against interstate commerce as such, but simply prevented traffic
in noxious articles, whatever their origin."
Philadelphia v.
New Jersey, supra, at
629.11 As the Court stated in
Guy v.
Baltimore, 100 U. S., at 443:
"In the exercise of its police powers, a State may exclude from
its territory, or prohibit the sale therein of any articles which,
in its judgment, fairly exercised, are prejudicial to the health or
which would endanger the lives or property of its people. But if
the State, under the guise of exerting its police powers, should
make such exclusion or prohibition applicable solely to articles,
of that kind, that may be produced or manufactured in other States,
the courts would find no difficulty in holding such legislation to
be in conflict with the Constitution of the United States."
See also
Reid v.
Colorado, 187 U. S. 137, 151
(1902);
Railroad Co. v.
Husen, 95 U. S. 465, 472
(1878).
11 "The hostility is to the thing itself, not to merely
interstate shipments of the thing; and an undiscriminating
hostility is at least nondiscriminatory. But that is not the case
here. The State of Illinois is quite willing to allow the storage
and even the shipment for storage of spent nuclear fuel in
Illinois, provided only that its origin is intrastate."
Illinois v.
General Elec. Co., 683
F.2d 206, 214
(CA7 1982), cert. denied, 461 U. S. 913
(1983); cf.
Oregon-Washington Co. v.
Washington,
supra, at 96: Inspection followed by quarantine of hay from
fields infested with weevils is "a real quarantine law, and not a
mere inhibition against importation of alfalfa from a large part of
the country without regard to the condition which might make its
importation dangerous."
348
The law struck down in
Philadelphia v.
New Jersey
left local waste untouched, although no basis existed by which to
distinguish interstate waste. But "[i]f one is inherently harmful,
so is the other. Yet New Jersey has banned the former while leaving
its landfill sites open to the latter." 437 U. S., at 629. Here,
the additional fee applies only to interstate hazardous waste, but
at all points from its entrance into Alabama until it is landfilled
at the Emelle facility, every concern related to quarantine applies
perforce to local hazardous waste, which pays no additional fee.
For this reason, the additional fee does not survive the
appropriate scrutiny applicable to discriminations against
interstate commerce.
Maine v.
Taylor, 477 U. S. 131 (1986),
provides no additional justification. Maine there demonstrated that
the outof-state baitfish were subject to parasites foreign to
in-state baitfish. This difference posed a threat to the State's
natural resources, and absent a less discriminatory means of
protecting the environment-and none was available-the importation
of baitfish could properly be banned.
Id., at 140. To the
contrary, the record establishes that the hazardous waste at issue
in this case is the same regardless of its point of origin. As
noted in
Fort Gratiot Sanitary Landfill, "our conclusion
would be different if the imported waste raised health or other
concerns not presented by [Alabama] waste."
Post, at 367.
Because no unique threat is posed, and because adequate means other
than overt discrimination meet Alabama's concerns,
Maine v.
Taylor provides the State no respite.
III
The decision of the Alabama Supreme Court is reversed, and the
cause is remanded for proceedings not inconsistent with this
opinion, including consideration of the appropriate relief to
petitioner. See
McKesson Corp. v.
Division of Alcoholic
Beverages and Tobacco, Fla. Dept. of Business Regu-
349
lations,
496 U. S.
18, 31 (1990); Tyler Pipe Industries, Inc. v. Washington State
Dept. of Revenue,
483
U. S. 232, 251253 (1987).
So ordered.
CHIEF JUSTICE REHNQUIST, dissenting.
I have already had occasion to set out my view that States need
not ban all waste disposal as a precondition to protecting
themselves from hazardous or noxious materials brought across the
State's borders. See
Philadelphia v.
New Jersey,
437 U. S. 617,
629 (1978) (REHNQUIST, J., dissenting). In a case also decided
today, I express my further view that States may take actions
legitimately directed at the preservation of the State's natural
resources, even if those actions incidentally work to disadvantage
some out-of-state waste generators. See
Fort Gratiot Sanitary
Landfill, Inc. v.
Michigan Dept. of Natural Resources,
post, p. 368 (REHNQUIST, C. J., dissenting). I dissent today,
largely for the reasons I have set out in those two cases. Several
additional comments that pertain specifically to this case, though,
are in order.
Taxes are a recognized and effective means for discouraging the
consumption of scarce commodities-in this case the safe environment
that attends appropriate disposal of hazardous wastes. Cf. 26 U. S.
C. §§ 4681, 4682 (1988 ed., Supp. III) (tax on ozone-depleting
chemicals); 26 U. S. C. §4064 (gas guzzler excise tax). I therefore
see nothing unconstitutional in Alabama's use of a tax to
discourage the export of this commodity to other States, when the
commodity is a public good that Alabama has helped to produce. Cf.
Fort Gratiot, post, at 372 (REHNQUIST, C. J., dissenting).
Nor do I see any significance in the fact that Alabama has chosen
to adopt a differential tax rather than an outright ban. Nothing in
the Commerce Clause requires Alabama to adopt an "all or nothing"
regulatory approach to noxious materials coming
350
from without the State. See
Mintz v.
Baldwin,
289 U. S. 346
(1933) (upholding State's
partial ban on cattle
importation).
In short, the Court continues to err by its failure to recognize
that waste-in this case admittedly
hazardous wastepresents
risks to the public health and environment that a State may
legitimately wish to avoid, and that the State may pursue such an
objective by means less Draconian than an outright ban. Under force
of this Court's precedent, though, it increasingly appears that the
only avenue by which a State may avoid the importation of hazardous
wastes is to ban such waste disposal altogether, regardless of the
waste's source of origin. I see little logic in creating, and
nothing in the Commerce Clause that requires us to create, such
perverse regulatory incentives. The Court errs in substantial
measure because it refuses to acknowledge that a safe and
attractive environment is the commodity really at issue in cases
such as this. See
Fort Gratiot, post, at 369, n. (REHNQUIST,
C. J., dissenting). The result is that the Court today gets it
exactly backward when it suggests that Alabama is attempting to
"isolate itself from a problem common to the several States."
Ante, at 339. To the contrary, it is the 34 States that have
no hazardous waste facility whatsoever, not to mention the
remaining 15 States with facilities all smaller than Emelle, that
have isolated themselves.
There is some solace to be taken in the Court's conclusion,
ante, at 344-345, that Alabama may impose a substantial fee
on the disposal of all hazardous waste, or a per-mile fee on all
vehicles transporting such waste, or a cap on total disposals at
the Emelle facility. None of these approaches provide Alabama the
ability to tailor its regulations in a way that the State will be
solving only that portion of the problem that it has created. See
Fort Gratiot, post, at 370-371 (REHNQUIST, C. J.,
dissenting). But they do at least give Alabama some mechanisms for
requiring waste-generating States to compensate Alabama for the
risks the Court declares Alabama must run.
351
Of course, the costs of any of the proposals that the Court
today approves will be less than fairly apportioned. For example,
should Alabama adopt a fiat transportation or disposal tax, Alabama
citizens will be forced to pay a disposal tax equal to that faced
by dumpers from outside the State. As the Court acknowledges, such
taxes are a permissible effort to recoup compensation for the risks
imposed on the State. Yet Alabama's general tax revenues presumably
already support the State's various inspection and regulatory
efforts designed to ensure the Emelle facility's safe operation.
Thus, Alabamians will be made to pay twice, once through general
taxation and a second time through a specific disposal fee.
Permitting differential taxation would, in part, do no more than
recognize that, having been made to bear all the risks from such
hazardous waste sites, Alabama should not in addition be made to
pay
more than others in supporting activities that will help
to minimize the risk.
Other mechanisms also appear open to Alabama to achieve results
similar to those that are seemingly foreclosed today. There seems
to be nothing, for example, that would prevent Alabama from
providing subsidies or other tax breaks to domestic industries that
generate hazardous wastes. Or Alabama may, under the market
participant doctrine, open its own facility catering only to
Alabama customers. See,
e. g., White v.
Massachusetts Council of Constr. Employers, Inc., 460 U. S. 204, 206-208
(1983);
Reeves, Inc. v.
Stake, 447 U. S. 429, 436-437
(1980);
Hughes v.
Alexandria Scrap Corp., 426 U. S.
794, 810 (1976). But certainly we have lost our way when we require
States to perform such gymnastics, when such performances will in
turn produce little difference in ultimate effects. In sum, the
only sure byproduct of today's decision is additional litigation.
Assuming that those States that are currently the targets for large
volumes of hazardous waste do not simply ban hazardous waste sites
altogether, they will undoubtedly continue to search for a way to
limit their risk from sites in operation. And each new arrange-
352
ment will generate a new legal challenge, one that will work to
the principal advantage only of those States that refuse to
contribute to a solution.
For the foregoing reasons, I respectfully dissent.
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