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REHNQUIST, C. J., dissenting

lations, 496 U. S. 18, 31 (1990); Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U. S. 232, 251– 253 (1987).

So ordered.


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

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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.

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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 flat 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

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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.






No. 91-636. Argued March 30, 1992—Decided June 1, 1992 The Waste Import Restrictions of Michigan's Solid Waste Management

Act (SWMA) provide that solid waste generated in another county, State, or country cannot be accepted for disposal unless explicitly authorized in the receiving county's plan. After St. Clair County, whose plan does not include such authorization, denied petitioner company's 1989 application for authority to accept out-of-state waste at its landfill, petitioner filed this action seeking a judgment declaring the Waste Import Restrictions invalid under the Commerce Clause and enjoining their enforcement. The District Court dismissed the complaint, and the Court of Appeals affirmed. The latter court found no facial discrimination against interstate commerce because the statute does not treat outof-county waste from Michigan any differently than waste from other States. The court also ruled that there was no actual discrimination because petitioner had not alleged that all Michigan counties ban out

of-state waste. Held: The Waste Import Restrictions unambiguously discriminate against

interstate commerce and are appropriately characterized as protectionist measures that cannot withstand Commerce Clause scrutiny. Pp. 358-368.

(a) Philadelphia v. New Jersey, 437 U. S. 617, 626–627, provides the proper analytical framework and controls here. Under the reasoning of that case, Michigan's Waste Import Restrictions clearly discriminate against interstate commerce, since they authorize each county to isolate itself from the national economy and, indeed, afford local waste producers complete protection from competition from out-of-state producers seeking to use local disposal areas unless a county acts affirmatively to authorize such use. Pp. 358–361.

(b) This case cannot be distinguished from Philadelphia v. New Jersey on the ground, asserted by respondents, that the Waste Import Restrictions treat waste from other Michigan counties no differently than waste from other States and thus do not discriminate against interstate commerce on their face or in effect. This Court's cases teach that a State (or one of its political subdivisions) may not avoid the Commerce

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