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Chemical Waste Management, Inc. v. Hunt

ELR Citation: 22 ELR 20909
Nos. No. 91-471, 504 U.S. 334/34 ERC 1721/(U.S., 06/01/1992) Rev'd & remanded

The Court holds that an Alabama act that imposes a disposal fee on hazardous wastes generated outside the state, but not on hazardous wastes from sources within Alabama, violates the Commerce Clause of the U.S. Constitution. The operator of a commercial hazardous waste landfill in Alabama, which is the largest landfill of its kind in the United States, appeals an Alabama Supreme Court ruling that the additional fee for out-of-state hazardous wastes advances legitimate local purposes that could not adequately be served by reasonable, nondiscriminatory alternatives. The Court holds that Alabama's differential disposal fee facially discriminates against hazardous waste generated outside Alabama and has plainly discouraged the commercial landfill's full operation. The Court invokes the rule of per se invalidity for discriminatory burdens on interstate commerce set forth in Philadelphia v. New Jersey, 8 ELR 20540, but concludes that further inquiry is appropriate in light of the state's argument that legitimate public health and safety purposes justify the additional fee for out-of-state hazardous wastes. The Court holds that the state has not met its burden of showing the unavailability of nondiscriminatory alternatives, including an additional fee on hazardous wastes disposed of in Alabama, a per-mile tax on vehicles transporting such wastes across state roads, or a cap on the total tonnage landfilled; nor has it demonstrated that the discrimination against out-of-state wastes does not amount to economic protectionism. In a footnote, the Court observes that a finding that state legislation constitutes economic protectionism may be based on either discriminatory purpose or discriminatory effect. The Court concludes that Alabama's differential disposal fee burdens those outside the state with slowing the flow of hazardous wastes into the state. Alabama's public health and safety concerns do not vary with the wastes' point of origin, and even the possible future financial and environmental risks Alabama faces do not vary with the wastes' state of origin in a way allowing foreign, but not local, wastes to be burdened. The Court also holds that the out-of-state waste disposal fee is not a quarantine law, because imported hazardous wastes pose the same health threats as those from within Alabama, for which no additional fee is paid.

In dissent, Chief Justice Rehnquist would hold that states may take actions legitimately directed at the preservation of their natural resources, even if those actions incidentally disadvantage out-of-state waste generators. The majority's construction of the Commerce Clause only creates an incentive for states that are the target for large volumes of hazardous waste simply tob an hazardous waste sites altogether. Further, nothing would prevent Alabama from providing subsidies or tax breaks to domestic industries that generate hazardous wastes, or under the market participant doctrine from opening its own facility catering only to Alabama customers.

[The Alabama Supreme Court's opinion is published at 22 ELR 20171.]

Counsel for Petitioner
Andrew J. Pincus
2000 Pennsylvania Ave. NW, Washington DC 20006
(202) 778-0628

Counsel for Respondent
Jeffrey Long, Ass't Attorney General
Office of Attorney General
Alabama State House
11 S. Union St., Montgomery AL 36130
(205) 242-7300