author: Justice White Chief Justice Rehnquist,

text:
    CHEMICAL WASTE MANAGEMENT, INC. v. HUNT, GOVERNOR OF ALABAMA, et al.
    No. 91-471.
    Argued April 21, 1992
    Decided June 1, 1992

      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. Getter, 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.

      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. Steenland, Jr., Anne S. Almy, Louise F. Milkman, and Gerald H. Yamada.

       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.

   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 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 (EPA) 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, El 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.” 584 So. 2d 1367, 1373 (Ala. 1991). Increasing amounts of out-of-state 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-1 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 substances that may be disposed of in any 1-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 §22-30B-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 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 of interstate trade. Today, in Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, post, p. 358, 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 réduce 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’ 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, 173-174 [(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 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. 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, 759-760 (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 nondiscriminatory alternatives.” Hughes v. Oklahoma, 441 U. S. 322, 337 (1979).

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, “[although the Legislature imposed an additional fee of $72.00 per ton on waste generated outside Alabama, there 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,” 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. Less discriminatory 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. 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 transportation 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. 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. The Act’s 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 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. 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).

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 out-of-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.

Ill

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 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.

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. Ill) (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 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 waste— presents 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.

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 arrangement 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.

       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

        “(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 600 such listed wastes. See 40 CFR pt. 261, subpt. D (1991).

       “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.

       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 out-of-state generators of hazardous waste and the Alabama operator of a hazardous waste landfill are viewed as “sales” of hazardous waste or “pirn-chases” 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 (CA11 1990), modified, 924 F. 2d 1001, cert. denied, 501 U. S. 1206 (1991).

       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.

       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 additionabfee 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).

       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).

       “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).

       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 nondis-eriminatory 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).

       The 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, 242-244 (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.

       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. 466 (1888); Railroad Co. v. Husen, 95 U. S. 465 (1878).

       “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, swpra, 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.”


source: Caselaw Access Project

author: Justice Stevens Chief Justice Rehnquist,

license: Public Domain

text:
    FORT GRATIOT SANITARY LANDFILL, INC. v. MICHIGAN DEPARTMENT OF NATURAL RESOURCES et al.
    No. 91-636.
    Argued March 30, 1992
    Decided June 1, 1992

      Stevens, J., delivered the opinion of the Court, in which White, O’Con-nor, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 368.

      Harold B. Finn III argued the cause for petitioner. With him on the briefs were Donna Nelson Heller and David I. Albin.

      Thomas L. Casey, Assistant Solicitor General of Michigan, argued the cause for respondents. With him on the brief for the state respondents were Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, and Thomas J. Emery and James E. Riley, Assistant Attorneys General. Lawrence R. Ternan, Margaret Battle Kiernan, and Robert J. Nickerson filed a brief for the county respondents.

         Andrew J. Pincus, Evan M. Tager, and Bruce J. Parker filed a brief for the National Solid Wastes Management Association as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Chris Gorman, Attorney General of Kentucky, and
        Robert V. Bullock and Stan Cox, Assistant Attorneys General, James H. Evans, Attorney General of Alabama, Grant Woods, Attorney General of Arizona, Charles M. Oberly III, Attorney General of Delaware, Linley E. Pearson, Attorney General of Indiana, Charles S. Crookham, Attorney General of Oregon, and Mary Sue Terry, Attorney General of Virginia; and for Whatcom County, Washington, by Paul J. Kundtz.

      A brief of amici curiae was filed for the Commonwealth of Pennsylvania et al. by Ernest D. Preate, Jr., Attorney General of Pennsylvania, Calvin R. Koons, Senior Deputy Attorney General, John G. Knorr III, Chief Deputy Attorney General, Gail B. Phelps, and David H. Wersan, and by the Attorneys General for their respective States as follows: Michael J. Bowers of Georgia, Larry EchoHawk of Idaho, Roland W. Burris of Illinois, Marc Racicot of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Nicholas Spaeth of North Dakota, Tom Udall of New Mexico, Lee Fisher of Ohio, T. Travis Medlock of South Carolina, Mark Barnett of South Dakota, Charles W. Burson of Tennessee, Maria J. Pa-lumbo of West Virginia, and Joseph B. Meyer of Wyoming.

   Justice Stevens

delivered the opinion of the Court.

In Philadelphia v. New Jersey, 437 U. S. 617, 618 (1978), we held that a New Jersey law prohibiting the importation of most “ ‘solid or liquid waste which originated or was collected outside the territorial limits of the State’” violated the Commerce Clause of the United States Constitution. In this case petitioner challenges a Michigan law that prohibits private landfill operators from accepting solid waste that originates outside the county in which their facilities are located. Adhering to our holding in the New Jersey case, we conclude that this Michigan statute is also unconstitutional.

HH

In 1978, Michigan enacted its Solid Waste Management Act (SWMA). That Act required every Michigan county to estimate the amount of solid waste that would be generated in the county in the next 20 years and to adopt a plan providing for its disposal at facilities that comply with state health standards. Mich. Comp. Laws § 299.425 (Supp. 1991). After holding public hearings and obtaining the necessary-approval of municipalities in the county, as well as the approval of the Director of the Michigan Department of Natural Resources, the County Board of Commissioners adopted a solid waste management plan for St. Clair County. In 1987, the Michigan Department of Natural Resources issued a permit to petitioner to operate a sanitary landfill as a solid waste disposal area in St. Clair County. See Bill Kettlewell Excavating, Inc. v. Michigan Dept. of Natural Resources, 931 F. 2d 413, 414 (CA6 1991).

On December 28, 1988, the Michigan Legislature amended the SWMA by adopting two provisions concerning the “acceptance of waste or ash generated outside the county of disposal area.” See 1988 Mich. Pub. Acts, No. 475, § 1, codified as amended, Mich. Comp. Laws §§ 299.413a, 299.430(2) (Supp. 1991). Those amendments (Waste Import Restrictions), which became effective immediately, provide:

“A person shall not accept for disposal solid waste . . . that is not generated in the county in which the disposal area is located unless the acceptance of solid waste . . . that is not generated in the county is explicitly authorized in the approved county solid waste management plan.” § 299.413a.
“In order for a disposal area to serve the disposal needs of another county, state, or country, the service ... must be explicitly authorized in the approved solid waste management plan of the receiving county.” § 299.430(2).

In February 1989, petitioner submitted an application to the St. Clair County Solid Waste Planning Committee for authority to accept up to 1,750 tons per day of out-of-state waste at its landfill. See Bill Kettlewell Excavating, Inc. v. Michigan Dept. of Natural Resources, 732 F. Supp. 761, 762 (ED Mich. 1990). In that application petitioner promised to reserve sufficient capacity to dispose of all solid waste generated in the county in the next 20 years. The planning committee denied the application. Ibid. In view of the fact that the county’s management plan does not authorize the acceptance of any out-of-eounty waste, the Waste Import Restrictions in the 1988 statute effectively prevent petitioner from receiving any solid waste that does not originate in St. Clair County.

Petitioner therefore commenced this action seeking a judgment declaring the Waste Import Restrictions unconstitutional and enjoining their enforcement. Petitioner contended that requiring a private landfill operator to limit its business to the acceptance of local waste constituted impermissible discrimination against interstate commerce. The District Court denied petitioner’s motion for summary judgment, however, id., at 766, and subsequently dismissed the complaint, App. 4. The court first concluded that the statute does not discriminate against interstate commerce “on its face” because the import restrictions apply “equally to Michigan counties outside of the county adopting the plan as well as to out-of-state entities.” 732 F. Supp., at 764. It also concluded that there was no discrimination “in practical effect” because each county was given discretion to accept out-of-state waste. Ibid. Moreover, the incidental effect on interstate commerce was “not clearly excessive in relation to the [public health and environmental] benefits derived by Michigan from the statute.” Id., at 765.

The Court of Appeals for the Sixth Circuit agreed with the District Court’s analysis. Although it recognized that the statute “places in-county and out-of-county waste in separate categories,” the Court of Appeals found no discrimination against interstate commerce because the statute “does not treat out-of-county waste from Michigan any differently than waste from other states.” 931 F. 2d, at 417. It also agreed that there was no actual discrimination because petitioner had not alleged that all counties in Michigan ban out-of-state waste. Id., at 418. Accordingly, it affirmed the judgment of the District Court. Ibid. We granted certiorari, 502 U. S. 1024 (1992), because of concern that the decision below was inconsistent with Philadelphia v. New Jersey and now reverse.

II

Before discussing the rather narrow issue that is contested, it is appropriate to identify certain matters that are not in dispute. Michigan’s comprehensive program of regulating the collection, transportation, and disposal of solid waste, as it was enacted in 1978 and administered prior to the 1988 Waste Import Restrictions, is not challenged. No issue relating to hazardous waste is presented, and there is no claim that petitioner’s operation violated any health, safety, or sanitation requirement. Nor does the case raise any question concerning policies that municipalities or other governmental agencies may pursue in the management of publicly owned facilities. The case involves only the validity of the Waste Import Restrictions as they apply to privately owned and operated landfills.

On the other hand, Philadelphia v. New Jersey provides the framework for our analysis of this case. Solid waste, even if it has no value, is an article of commerce. 437 U. S., at 622-623. Whether the business arrangements between out-of-state generators of waste and the Michigan operator of a waste disposal site are viewed as “sales” of garbage or “purchases” of transportation and disposal services, the commercial transactions unquestionably have an interstate character. The Commerce Clause thus imposes some constraints on Michigan’s ability to regulate these transactions.

As we have long recognized, the “negative” or “dormant” aspect of the Commerce Clause prohibits States from “advancing] their own commercial interests by curtailing the movement of articles of commerce, either into or out of the state.” H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 535 (1949). A state statute that clearly discriminates against interstate commerce is therefore unconstitutional “unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism.” New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 274 (1988).

New Jersey’s prohibition on the importation of solid waste failed this test:

“[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’ 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., at 522-524; or to create jobs by keeping industry within the State, Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1, 10; Johnson v. Haydel, 278 U. S. 16; Toomer v. Witsell, 334 U. S., at 403-404; or to preserve the State’s financial resources from depletion by fencing out indigent immigrants, Edwards v. California, 314 U. S. 160, 173-174. In each of these cases, a presumably legitimate goal was sought to be achieved by the illegitimate means of isolating the State from the national economy.” Philadelphia v. New Jersey, 437 U. S., at 626-627.

The Waste Import Restrictions enacted by Michigan authorize each of the State’s 83 counties to isolate itself from the national economy. Indeed, unless a county acts affirmatively to permit other waste to enter its jurisdiction, the statute affords local waste producers complete protection from competition from out-of-state waste producers who seek to use local waste disposal areas. In view of the fact that Michigan has not identified any reason, apart from its origin, why solid waste coming from outside the county should be treated differently from solid waste within the county, the foregoing reasoning would appear to control the disposition of this case.

Ill

Respondents Michigan and St. Clair County argue, however, that the Waste Import Restrictions — unlike the New Jersey prohibition on the importation of solid waste — do not discriminate against interstate commerce on their face or in effect because they treat waste from other Michigan counties no differently than waste from other States. Instead, respondents maintain, the statute regulates evenhandedly to effectuate local interests and should be upheld because the burden on interstate commerce is not clearly excessive in relation to the local benefits. Cf. Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). We disagree, for our prior cases teach that a State (or one of its political subdivisions) may not avoid the strictures of the Commerce Clause by curtailing the movement of articles of commerce through subdivisions of the State, rather than through the State itself.

In Brimmer v. Rebman, 138 U. S. 78 (1891), we reviewed the constitutionality of a Virginia statute that imposed special inspection fees on meat from animals that had been slaughtered more than 100 miles from the place of sale. We concluded that the statute violated the Commerce Clause even though it burdened Virginia producers as well as the Illinois litigant before the Court. We explained:

“[T]his statute [cannot] be brought into harmony with the Constitution by the circumstance that it purports to apply alike to the citizens of all the States, including Virginia; for, ‘a burden imposed by a State upon interstate commerce is not to be sustained simply because the statute imposing it applies alike to the people of all the States, including the people of the State enacting such statute.’ Minnesota v. Barber, [136 U. S. 313 (1890)]; Robbins v. Shelby Taxing District, 120 U. S. 489, 497. If the object of Virginia had been to obstruct the bringing into that State, for use as human food, of all beef, veal and mutton, however wholesome, from animals slaughtered in distant States, that object will be accomplished if the statute before us be enforced.” Id., at 82-83.

In Dean Milk Co. v. Madison, 340 U. S. 349 (1951), another Illinois litigant challenged a city ordinance that made it unlawful to sell any milk as pasteurized unless it had been processed at a plant “within a radius of five miles from the central square of Madison,” id., at 350. We held the ordinance invalid, explaining:

“[T]his regulation, like the provision invalidated in Baldwin v. Seelig, Inc., [294 U. S. 511 (1935)], in practical effect excludes from distribution in Madison wholesome milk produced and pasteurized in Illinois. ‘The importer . . . may keep his milk or drink it, but sell it he may not.’ Id., at 521. In thus erecting an economic barrier protecting a major local industry against competition from without the State, Madison plainly discriminates against interstate commerce.” Id., at 354.

The fact that the ordinance also discriminated against all Wisconsin producers whose facilities were more than five miles from the center of the city did not mitigate its burden on interstate commerce. As we noted, it was “immaterial that Wisconsin milk from outside the Madison area is subjected to the same proscription as that moving in interstate commerce.” Id., at 354, n. 4.

Nor does the fact that the Michigan statute allows individual counties to accept solid waste from out of state qualify its discriminatory character. In the New Jersey case the statute authorized a state agency to promulgate regulations permitting certain categories of waste to enter the State. See 437 U. S., at 618-619. The limited exception covered by those regulations — like the fact that several Michigan counties accept out-of-state waste — merely reduced the scope of the discrimination; for all categories of waste not excepted by the regulations, the discriminatory ban remained in place. Similarly, in this case St. Clair County’s total ban on out-of-state waste is unaffected by the fact that some other counties have adopted a different policy.

In short, neither the fact that the Michigan statute purports to regulate intercounty commerce in waste nor the fact that some Michigan counties accept out-of-state waste provides an adequate basis for distinguishing this case from Philadelphia v. New Jersey.

M IV

Michigan and St. Clair County also argue that this case is different from Philadelphia v. New Jersey because the SWMA constitutes a comprehensive health and safety regulation rather than “economic protectionism” of the State’s limited landfill capacity. Relying on an excerpt from our opinion in Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941 (1982), they contend that the differential treatment of out-of-state waste is reasonable because they have taken measures to conserve their landfill capacity and the SWMA is necessary to protect the health of their citizens. That reliance is misplaced. In the Sporhase case we considered the constitutionality of a Nebraska statute that prohibited the withdrawal of ground water for use in an adjoining State without a permit that could only issue if four conditions were satisfied. We held that the fourth condition — a requirement that the adjoining State grant reciprocal rights to withdraw its water and allow its use in Nebraska — violated the Commerce Clause. Id., at 957-958.

As a preface to that holding, we identified several reasons that, in combination, justified the conclusion that the other conditions were facially valid. Id., at 957. First, we questioned whether the statute actually discriminated against interstate commerce. Although the restrictive conditions in the statute nominally applied only to interstate transfers of ground water, they might have been “no more strict in application than [other state-law] limitations upon intrastate transfers.” Id., at 956. “Obviously, a State that imposes severe withdrawal and use restrictions on its own citizens is not discriminating against interstate commerce when it seeks to prevent the uncontrolled transfer of water out of the State.” Id., at 955-956.

We further explained that a confluence of factors could justify a State’s efforts to conserve and preserve ground water for its own citizens in times of severe shortage. Only the first of those reasons — our reference to the well-recognized difference between economic protectionism, on the one hand, and health and safety regulation, on the other — is even arguably relevant to this case. We may assume that all of the provisions of Michigan’s SWMA prior to the 1988 amendments adding the Waste Import Restrictions could fairly be characterized as health and safety regulations with no protectionist purpose, but we cannot make that same assumption with respect to the Waste Import Restrictions themselves. Because those provisions unambiguously discriminate against interstate commerce, the State bears the burden of proving that they further health and safety concerns that cannot be adequately served by nondiscriminatory alternatives. Michigan and St. Clair County have not met this burden.

Michigan and St. Clair County assert that the Waste Import Restrictions are necessary because they enable individual counties to make adequate plans for the safe disposal of future waste. Although accurate forecasts about the volume and composition of future waste flows may be an indispensable part of a comprehensive waste disposal plan, Michigan could attain that objective without discriminating between in- and out-of-state waste. Michigan could, for example, limit the amount of waste that landfill operators may accept each year. See Philadelphia v. New Jersey, 437 U. S., at 626. There is, however, no valid health and safety reason for limiting the amount of waste that a landfill operator may accept from outside the State, but not the amount that the operator may accept from inside the State.

Of course, our conclusion would be different if the imported waste raised health or other concerns not presented by Michigan waste. In Maine v. Taylor, 477 U. S. 131 (1986), for example, we upheld the State’s prohibition against the importation of live baitfish because parasites and other characteristics of nonnative species posed a serious threat to native fish that could not be avoided by available inspection techniques. We concluded:

“The evidence in this case amply supports the District Court’s findings that Maine’s ban on the importation of live baitfish serves legitimate local purposes that could not adequately be served by available nondiscriminatory alternatives. This is not a case of arbitrary discrimination against interstate commerce; the record suggests that Maine has legitimate reasons, ‘apart from their origin, to treat [out-of-state baitfish] differently,’ Philadelphia v. New Jersey, 437 U. S., at 627.” Id., at 151-152.

In this case, in contrast, the lower courts did not find — and respondents have not provided — any legitimate reason for allowing petitioner to accept waste from inside the county but not waste from outside the county.

For the foregoing reasons, the Waste Import Restrictions unambiguously discriminate against interstate commerce and are appropriately characterized as protectionist measures that cannot withstand scrutiny under the Commerce Clause. The judgment of the Court of Appeals is therefore reversed.

It is so ordered.

Chief Justice Rehnquist,

with whom Justice Black-mun joins, dissenting.

When confronted with a dormant Commerce Clause challenge “[t]he crucial inquiry ... must be directed to determining whether [the challenged statute] is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental.” Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978). Because I think the Michigan statute is at least arguably directed to legitimate local concerns, rather than improper economic protectionism, I would remand this case for further proceedings.

The substantial environmental, esthetic, health, and safety problems flowing from this country’s waste piles were already apparent at the time we decided Philadelphia. Those problems have only risen in the intervening years. Salisbury, Pollution Liability Insurance Coverage, The Standard-Form Pollution Exclusion, and the Insurance Industry: A Case Study in Collective Amnesia, 21 Envtl. L. 357, 369-370 (1991). In part this is due to increased waste volumes, volumes that are expected to continue rising for the foreseeable future. See United States Environmental Protection Agency, Characterization of Municipal Solid Waste in the United States: 1990 Update 10 (municipal solid wastes have increased from 128.1 million tons in 1975 to 179.6 million tons in 1988, expected to rise to 216 million tons by the year 2000); id., at ES-3 (1988 waste was the equivalent of 4.0 pounds per person per day, expected to rise to 4.4 pounds per person by the year 2000). In part it is due to exhaustion of existing capacity. Id., at 55 (landfill disposals increased from 99.7 million tons in 1975 to 130.5 million in 1988); 56 Fed. Reg. 50980 (1991) (45% of solid waste landfills expected to reach capacity by 1991). It is no secret, why capacity is not expanding sufficiently to meet demand — the substantial risks attendant to waste sites make them extraordinarily unattractive neighbors. Swin Resource Systems, Inc. v. Lycoming Cty., 883 F. 2d 245, 253 (CA3 1989), cert. denied, 493 U. S. 1077 (1990). The result, of course, is that while many are willing to generate waste — indeed, it is a practical impossibility to solve the waste problem by banning waste production — few are willing to help dispose of it. Those locales that do provide disposal capacity to serve foreign waste effectively are affording reduced environmental and safety risks to the States that will not take charge of their own waste.

The State of Michigan has stepped into this quagmire in order to address waste problems generated by its own populace. It has done so by adopting a comprehensive approach to the disposal of solid wastes generated within its borders. The legislation challenged today is simply one part of a broad package that includes a number of features: a state-mandated statewide effort to control and plan for waste disposal, Mich. Comp. Laws §§299.427 and 299.430 (1984 and Supp. 1991), requirements that local units of government participate in the planning process, ibid., and §299.426 (Supp. 1991), restrictions to assure safe transport, §299.431 (1984), a ban on the operation of waste disposal facilities unless various design and technical requirements are satisfied and appropriate permits obtained, ibid., and § 299.432a (Supp. 1991), and commitments to promote source separation, composting, and recycling, § 299.430a (Supp. 1991). The Michigan legislation is thus quite unlike the simple outright ban that we confronted in Philadelphia.

In adopting this legislation, the Michigan Legislature also appears to have concluded that, like the State, counties should reap as they have sown — hardly a novel proposition. It has required counties within the State to be responsible for the waste created within the county. It has accomplished this by prohibiting waste facilities from accepting waste generated from outside the county, unless special permits are obtained. In the process, of course, this facially neutral restriction (i. e., it applies equally to both interstate and intrastate waste) also works to ban disposal from out-of-state sources unless appropriate permits are procured. But I cannot agree that such a requirement, when imposed as one part of a comprehensive approach to regulating in this difficult field, is the stuff of which economic protectionism is made.

If anything, the challenged regulation seems likely to work to Michigan’s economic disadvantage. This is because, by limiting potential disposal volumes for any particular site, various fixed costs will have to be recovered across smaller volumes, increasing disposal costs per unit for Michigan consumers. 56 Fed. Reg. 50987 (1991). The regulation also will require some Michigan counties — those that until now have been exporting their waste to other locations in the State — to confront environmental and other risks that they previously have avoided. Commerce Clause concerns are at their nadir when a state Act works in this fashion — raising prices for all the State’s consumers, and working to the substantial disadvantage of other segments of the State’s population — because in these circumstances “ *a State’s own political processes will serve as a check against unduly burdensome regulations.’ ” Kassel v. Consolidated Freightways Corp. of Del., 450 U. S. 662, 675 (1981) (quoting Raymond Motor Transportation, Inc. v. Rice, 434 U. S. 429, 444, n. 18 (1978)). In sum, the law simply incorporates the commonsense notion that those responsible for a problem should be responsible for its solution to the degree they are responsible for the problem but not further. At a minimum, I think the facts just outlined suggest the State must be allowed to present evidence on the economic, environmental, and other effects of its legislation.

The Court suggests that our decisions in Brimmer v. Rebutan, 138 U. S. 78 (1891), and Dean Milk Co. v. Madison, 340 U. S. 349 (1951), foreclose the possibility that a statute attacked on Commerce Clause grounds may be defended by pointing to the statute’s effects on intrastate commerce. But our decisions in those cases did not rest on such a broad proposition. Instead, as the passages quoted by the Court make clear, in both Brimmer and Dean Milk the Court simply rejected the notion that there could be a noneconomic protectionist reason for the bans at issue, because the objects being banned presented no health or environmental risk. See Brimmer, 138 U. S., at 83 (“[i]f the object of Virginia had been to obstruct the bringing into that State, for uses as human food, of all beef, veal and mutton, however wholesome” (emphasis added)); see also ibid, (comparing the statute to one that bans meat from other States “in whatever form, and although entirely sound and fit for human food” (emphasis added)); Dean Milk, 340 U. S., at 354 (the statute “excludes from distribution in Madison wholesome milk” (emphasis added)). It seems unlikely that the waste here is “wholesome” or “entirely sound and fit.” It appears, instead, to be potentially dangerous — at least the State has so concluded. Nor does the legislation appear to protect “a major local industry against competition from without the State.” Ibid. Neither Dean Milk nor Brimmer prohibits a State from adopting health and safety regulations that are directed to legitimate local concerns. See Maine v. Taylor, 477 U. S. 131 (1986). I would remand this case to give the State an opportunity to show that this is such a regulation.

We confirmed in Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941 (1982), that a State’s effort to adopt a comprehensive regime to address a major environmental threat or threat to natural resources need not run afoul of the Commerce Clause. In that case we noted that “[ojbviously, a State that imposes severe withdrawal and use restrictions on its own citizens is not discriminating against interstate commerce when it seeks to prevent the uncontrolled transfer of water out of the State.” Id., at 955-956. Substitute “attractive and safe environment” for “water” and one has the present case. Michigan has limited the ability of its own population to despoil the environment and to create health and safety risks by excessive and uncontrolled waste disposal. It does not thereby violate the Commerce Clause when it seeks to prevent this resource from being exported — the effect if Michigan is forced to accept foreign waste in its disposal facilities. Rather, the “resource has some indicia of a good publicly produced and owned in which a State may favor its own citizens in times of shortage.” Id., at 957. Of course the State may choose not to do this, and in fact, in this case Michigan does permit counties to decide on an individualized basis whether to accept out-of-county waste. But such a result is not constitutionally mandated.

The modern landfill is a technically complex engineering exercise that comes replete with liners, leachate collection systems, and highly regulated operating conditions. As a result, siting a modern landfill can now proceed largely independent of the landfill location’s particular geological characteristics. See 56 Fed. Reg. 51009 (1991) (Environmental Protection Agency approved “composite liner system is designed to be protective in all locations, including poor locations”); id., at 51004-51005 (outlining additional technical requirements for only those landfill sites (1) near airports, (2) on floodplains, (3) on wetlands, (4) on fault areas, (5) on seismic impact zones, or (6) on unstable areas). Given this, the laws of economics suggest that landfills will sprout in places where land is cheapest and population densities least. See Aim, “Not in My Backyard:” Facing the Siting Question, 10 EPA J. 9 (1984) (noting the need for each county to accept a share of the overall waste stream equivalent to what it generates so that “less populated counties are protected against becoming the dumping ground of the entire region”). I see no reason in the Commerce Clause, however, that requires cheap-land States to become the waste repositories for their brethren, thereby suffering the many risks that such sites present.

The Court today penalizes the State of Michigan for what to all appearances are its good-faith efforts, in turn encouraging each State to ignore the waste problem in the hope that another will pick up the slack. The Court’s approach fails to recognize that the latter option is one that is quite real and quite attractive for many States — and becomes even more so when the intermediate option of solving its own problems, but only its own problems, is eliminated.

For the foregoing reasons, I respectfully dissent.

       1978 Mich. Pub. Acts, No. 641, codified as amended, Mich. Comp. Laws §§299.401-299.437 (1984 ed. and Supp. 1991).

       The Michigan statute defines solid waste as follows:
      “Sec. 7. (1) ‘Solid waste’ means garbage, rubbish, ashes, incinerator ash, incinerator residue, street cleanings, municipal and industrial sludges, solid commercial and solid industrial waste, and animal waste other than organic waste generated in the production of livestock and poultry. Solid waste does not include the following:
      “(a) Human body waste.
      “(b) Organic waste generated in the production of livestock and poultry. “(c) Liquid waste.
      “(d) Ferrous or nonferrous scrap directed to a scrap metal processor or to a reuser of ferrous or nonferrous products.
      “(e) Slag or slag products directed to a slag processor or to a reuser of slag or slag products.
      “(f) Sludges and ashes managed as recycled or nondetrimental materials appropriate for agricultural or silvicultural use pursuant to a plan approved by the director.
      “(g) Materials approved for emergency disposal by the director.
      “(h) Source separated materials.
      “(i) Site separated materials.
      “(j) Fly ash or any other ash produced from the combustion of coal, when used in the following instances ...
      “(k) Other wastes regulated by statute.” Mich. Comp. Laws §299.407(7) (Supp. 1991).

       As we explained in Philadelphia v. New Jersey:

      “All objects of interstate trade merit Commerce Clause protection; none is excluded by definition at the outset. In Bowman [v. Chicago & Northwestern R. Co., 126 U. S. 465 (1888),] and similar cases, the Court held simply that because the articles’ worth in interstate commerce was far outweighed by the dangers inhering in their very movement, States could prohibit their transportation across state lines. Hence, we reject the state court’s suggestion that the banning of ‘valueless’ out-of-state wastes by ch. 363 implicates no constitutional protection. 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. Cf. Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 802-814; Meat Drivers v. United States, 371 U. S. 94.” 437 U. S., at 622-623.

       Cf. Wyoming v. Oklahoma, 502 U. S. 437, 455 (1992) (Oklahoma statute that “expressly reserves a segment of the Oklahoma coal market for Oklahoma-mined coal, to the exclusion of. . . other States,” violates the Commerce Clause even though it “sets aside only a ‘small portion’ of the Oklahoma coal market.... The volume of commerce affected measures only the extent of the discrimination; it is of no relevance to the determination whether a State has discriminated against interstate commerce”) (emphasis in original).

       The statute at issue in Sporhase v. Nebraska ex rel. Douglas provided: “ ‘Any person, firm, city, village, municipal corporation or any other entity intending to withdraw ground water from any well or pit located in the State of Nebraska and transport it for use in an adjoining state shall apply to the Department of Water Resources for a permit to do so. If the Director of Water Resources finds that the withdrawal of the ground water requested is reasonable, is not contrary to the conservation and use of ground water, and is not otherwise detrimental to the public welfare, he shall grant the permit if the state in which the water is to be used grants reciprocal rights to withdraw and transport ground water from that state for use in the State of Nebraska.’” 468 U. S., at 944 (quoting Neb. Rev. Stat. §46-613.01 (1978)).

       “Moreover, in the absence of a contrary view expressed by Congress, we are reluctant to condemn as unreasonable, measures taken by a State to conserve and preserve for its own citizens this vital resource in times of severe shortage. Our reluctance stems from the ‘confluence of [several] realities.’ Hicklin v. Orbeck, 437 U. S. 518, 634 (1978). First, a State’s power to regulate the use of water in times and places of shortage for the purpose of protecting the health of its citizens — and not simply the health of its economy — is at the core of its police power. For Commerce Clause purposes, we have long recognized a difference between economic protectionism, on the one hand, and health and safety regulation, on the other. See H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 533 (1949). Second, the legal expectation that under certain circumstances each State may restrict water within its borders has been fostered over the years not only by our equitable apportionment decrees, see, e. g., Wyoming v. Colorado, 353 U. S. 953 (1957), but also by the negotiation and enforcement of interstate compacts. Our law therefore has recognized the relevance of state boundaries in the allocation of scarce water resources. Third, although appellee’s claim to public ownership of Nebraska ground water cannot justify a total denial of federal regulatory power, it may support a limited preference for its own citizens in the utilization of the resource. See Hicklin v. Orbeck, supra, at 533-534. In this regard, it is relevant that appellee’s claim is logically more substantial than claims to public ownership of other natural resources. See supra, at 950-951. Finally, given appellee’s conservation efforts, the continuing availability of ground water in Nebraska is not simply happenstance; the natural resource has some indicia of a good publicly produced and owned in which a State may favor its own citizens in times of shortage. See Reeves, Inc. v. Stake, 447 U. S. 429 (1980); cf. Philadelphia v. New Jersey, 437 U. S., at 627-628, and n. 6; Baldwin v. Fish and Game Comm’n of Montana, 436 U. S. 371 (1978). A facial examination of the first three conditions set forth in §46-613.01 does not, therefore, indicate that they impermissibly burden interstate commerce. Appellants, indeed, seem to concede their reasonableness.” Sporhase v. Nebraska ex rel. Douglas, 458 U. S., at 956-957.

       The other reasons were related to the special role that States have traditionally played in the ownership and control of ground water and to the fact that Nebraska’s conservation efforts had given the water some indicia of a good that is publicly produced and owned. See id., at 966. There are, however, no analogous traditional legal expectations regarding state regulation of private landfills, which are neither publicly produced nor publicly owned.

       The dissent states that we should remand for further proceedings in which Michigan and St. Clair County might be able to prove that the Waste Import Restrictions constitute legitimate health and safety regulations, rather than economic protectionism of the State’s limited landfill capacity. See post, at 368, 371. We disagree, for respondents have neither asked for such a remand nor suggested that, if given the opportunity, they could prove that the restrictions further health and safety concerns that cannot adequately be served by nondiscriminatory alternatives.

       “An unregulated free market flow of waste into Michigan,” the State asserts, “would be disruptive of efforts to plan for the proper disposal of future waste due to incoming waste from sources not accounted for during the planning process.” Brief for State Respondents 49; see also Brief for County Respondents 13.

       I am baffled by the Court’s suggestion that this case might be characterized as one in which garbage is being bought and sold. See ante, at 369. There is no suggestion that petitioner is making payment in order to have garbage delivered to it. Petitioner is, instead, being paid to accept the garbage of which others wish to be rid. There can be little doubt that in accepting this garbage, petitioner is also imposing environmental and other risks attendant to the waste’s delivery and storage.