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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.

Author: White

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.


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 Nat. 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."*fn1 584 So.2d 1367, 1373 (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 (the 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*fn2 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 the 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 preempted 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, Supreme Court Rule 10.1(c), we granted certiorari limited to petitioner's Commerce Clause challenge to the additional fee. 502 U.S. (1992). We now reverse.


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.*fn3 Today, in Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, post, p. , 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:

"'The 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 ...

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