# Amicus Curiae Brief — Chemical Waste Management, Inc. v. Hunt

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992
- **Citation:** 504 U.S. 334

## Text

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No. 91-471

a CLERK
In the Supreme Court of the Gnited States

OCTOBER TERM, 1991

CHEMICAL WASTE MANAGEMENT, INC., PETITIONER

Vv.
Guy HUNT, GOVERNER OF THE STATE OF ALABAMA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF ALABAMA

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE

KENNETH W. STARR
Solicitor General

BARRY M. HARTMAN
Acting Assistant Attorney
General

LAWRENCE G. WALLACE
Deputy Solicitor

HARRIET S. SHAPIRO
Assistant to the Solicitor

General
PETER R.STEENLAND, JR.
GERALD H. YAMADA ANNE S. ALMY
Principal Deputy General Attorneys
Counsel
LISA K. FRIEDMAN Department of Justice
Associate General Washington, D.C. 20530
Council for Solid Waste (202) 514-2217
and Emergency Response
ANGELIA SOUDER BLACKWELL
Attorney
Environmental Protection
Agency

Washington, D.C. 20460
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> fan

QUESTIONS PRESENTED

1. Whether a disposal tax that applies only to wastes
generated outside the State violates the Commerce Clause.

2. Whether a disposal tax that applies only to waste
disposed of at “commercial” hazardous waste disposal
facilities violates the Commerce Clause.

3. Whether a limitation on the amount of hazardous
waste that may be disposed of annually at such facilities
violates the Commerce Clause.

TABLE OF CONTENTS

Page
es conenevosonsnccesecs l
ee ncsncnoocoeces 4
i ssnencecocnuecesoce 20

TABLE OF AUTHORITIES
Cases:

Alabama v. EPA, 871 F. 2d 1548 (11th Cir.), cert. denied, 2
cas raeccsnsnsnaseoenessooeoesooes
Alabama ex rel. Siegelmann v. EPA, 925 F.2d 385 (11th = 2

American Trucking Ass’ns, Inc. v. Scheiner, 483 U.S. 266 9
EE

Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984)......... 15,16
City of Philadelphia v. New Jersey, 437 U.S. 263 (1984)..... 7,10,11
-12,13
Coe v. Errol, 116 U>S. 517 (1886)..................cccccssssssssesseeees 12
Commonwealth Edison Co.v. Montana, 453 U.S. 609 14,15
i ciesctcnedsnnccccusesssocersococsevececcscses
Complete Auto Transit, Inc. v. Brady, 4830 U.S. 274 (1977) 14
Government Suppliers Consolidating Services, Inc. v. 12
Bayh, 753 F. Supp 739 (S.D. Ind. 1990)..........0... eee
Hardage v. Atkins, 582 F. 2d 1264 (10th Cir. 1978)............ 12

Hazardous Waste Treatment Councii v. South Carolina, 7,12,19
|
Illinois v. General Electric Co., 683 F. 2d 206 (7th Cir. 12

1982), cert. denied, 461 U.S. 913 (1983)...0.... eee
Maine v. Taylor, 477 U.S. 13331 (1986)... eee 9,10,13
Maryland v. Louisiana, 451 U.S. 725 (1981)... ee 914,15
16
McKesson Corp. vy. Division of Alcoholic Beverages & 16
TOORCCO, BES GB. Cl. BESS (1GGO).....n....n...2ccececcccccccceeseceesees

(III)

IV

Cases—Continued
National Solid Waste Management Ass'n v. Voinovich,
763 F. Supp 244 (S.D. Ohio 1991), appeal pending, No.
Re ae a ctcitectercitrnnetnenncenintittetnitneiidinciestanieniinnention
National Solids Wastes Management Ass'n v. Alabama
- Dep't of Envtl. Management, 729 F. Supp 792 (N.D.
Ala.1990
National Solid Wastes Management Ass’n vy. Alabama
Dep't of Envtl. Management, 910 F2d. 713, amended
924 F.2d 1001 (11th Cir.) cert denied, 111 S. Ct. 2800
COE Diicesisctndacdvacintctinvstsntictancnttbiassidiaisbibisidachinbibmibmpeinedtiviess
New Energy Co. v. Limbach, 486 U.S. 269 (1988)...............
O’Niel v. Picilo, 883 F. 2d 176 (ist Cir. 1989), cert. denied,
Sa a Fe Ce ieinieeehseininteecsahbincicacieisbdigecctinn
Pike v. Bruce Church, Inc. 397 U.S. 187 (1970)................

Washington State Bldg. & Constr. Trades Council v.
Spellman, 684 F. 2d 627 (9th cir. 1982) cert denied 461
U.S. 918 (1983)

Westinghouse Electric Corp. v. Tully, 466 U.S. 388 (1984)..

Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1869).............

Consiitution, statutes and regulations:

U.S. Const.:
Art. I, § 10, cl. 2 (Commerce Clause)...........................

Art. VI, cl.2 (Supremacy Clause)................ccccccccsssesssees
Amend. XIV:
NN Fe INI a seisiccschacisinscictnnpaseapniieridaieoiinumaatiioants
Ee Te
Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. 9601 ef seq...............ccceeeeeeeeee
Se He Me Ci iicincideeninctesesneerenstentcsinnssennctnnniannnen
a A LG Ok | ren
Low Level Radioactive Waste Policy Amendments Act of
SE, Se ie. He casecenesecccoctncinitenienttiinamsnaneess

12

3,4,12

16
10

14,15,1
8
12

16
12

Page

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11,12,1
3,16,19
3

15
16
10

10
10
7,11

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Page
Resourse Conservation and Recovery Act, 42 U.S.C. 6901 — 1,17
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| St EEE ees ne) eRe a 2

| ESE SRR AE ee CTRL Eee 2
Superfund Amendments and Reauthorization Act, 42 19

ae audeemanaaadaeapeiiabeeiopeses

Ala. Code (Supp. 1989):

I a cteiamenaaciens 3

I, 2
eS iia ae one 5

TRESS SURE ao Sie Seen OI Mama are S na 4

Oe eiaaiel 4
iss capac anntebeaianaiaedads 17
Miscellaneous: Page
H.R. 739, 102d Cong., Ist Sess. (1991)............0.....cccccccscoceeee 11
H.R. 1525, 102d Cong., Ist Sess. (1991)..............cceeceeeeeeeeeeee 11
H.R. 2380, 102d Cong., Ist Sess. (1991)................cccccccccceeees 11
oS SS fe ae | |__| Se eeenee enna ll
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In the Supreme Court of the Gnited States

OCTOBER TERM, 1991

No. 91-471

(CHEMICAL WASTE MANAGEMENT, INC., PETITIONER
v.

GuUY HUNT, GOVERNER OF THE STATE OF ALABAMA,
ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF ALABAMA

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE

This brief is submitted in response to the
Court's invitation to the Solicitor General to express
the views of the United States.

STATEMENT

Petitioner owns and operates the Emelle Facility, a
hazardous waste treatment and disposal landfill in
western Alabama. In 1987, the United States
Environmental Protection Agency issued a permit for
the Emelle Facility under the provisions of the
Resource Conservation and Recovery Act, 42 U.S.C.
6901 et seg. (RCRA). Under that Act the EPA
Administrator is charged with "establishing such
performance standards as may be necessary to protect
human health and the environment." 42 U.S.C.

(1)

2

6924(a). Permits may be issued upon a determination
of compliance with those standards. 42 U.S.C. 6925(c).

RCRA, however, is an exercise in cooperative
federalism. States may be authorized to administer and
enforce an equivalent hazardous waste program in lieu
of the federal program. 42 U.S.C. 6926. In addition,
"[njothing in [RCRA] shall be construed to prohibit
any State from imposing any requirements which are
more stringent than those imposed by [federal]
regulations." 42 U.S.C. 6929. Alabama, in fact, has a
permitting requirement applicable to the Emelle
Facility pursuant to Ala. Code § 22-30-12.

In the late 1980's, Alabama and its officials became
alarmed about the large volume of hazardous wastes,
principally from outside Alabama, brought to the
Emelle Facility for disposal. The Emelle facility
receives a considerable portion of all hazardous waste
which is generated and landfilled in the United States.
The overwhelming majority of hazardous’ waste
received at Emelle comes from outside the State of
Alabama. The State's response to these
circumstances principally has been to erect barriers
to the interstate component of the waste disposal
activities at Emelle. First, in 1988, state officials
sued the Environmental Pfotection Agency to restrain
shipments of PCB-contaminated dirt from a Texas
Superfund site to the Emelle Facility. See Alabama
v. EPA, 871 F.2d 1548 (11th Cir.), cert. denied, 493
U.S. 991 (1989). Aiabama obtained preliminary and
permanent injunctive relief from “the United States
District Court for the Middle District of Alabama; on
appeal, the Eleventh Circuit reversed, dissolved the
injunction and dismissed the case for lack of subject
matter jurisdiction. 871 F.2d at 1560. The delay in
effectuating the Superfund remedy cost’ the
government hundreds of thousands of dollars. See
generally Alabama ex rel. Siegelman v. EPA, 925
F.2d 385 (11th Cir. 1991).

3

In the summer of 1989, the Alabama legislature and
executive agencies took further steps to restrain
petitioner's interstate trade at Emelle. The
legislature enacted the Holley Bill, Ala. Code § 22-30-
11 (Supp. 1989), which prohibited facilities in Alabama
from aceepting wastes generated in other States
where the generating State either prohibits the
treatment or disposal of hazardous wastes, or has no
existing facility for the treatment or disposal of
hazardous wastes and has not entered into an
agreement with Alabama. On its effective date, the
Holley Bill prevented the Emelle facility from
accepting wastes generated in 22 States and the
District of Columbia. The Alabama Department of
Environmental Management also promulgated two sets
of regulations in 1989. One set required the Stace's
approval before wastes could be shipped to Emelle; the
other set required certain types of hazardous wastes
to be treated prior to disposal in a landfill.

Petitioner challenged the Holley Bill and both sets
of regulations in a_ suit alleging violation of the
Commerce Clause and the Supremacy Clause. The
United States District Court forethe Northern
District of Alabama upheld the challenged law and
regulations in early 1990. National Solid Wastes
Management Ass'n v. Alabama Dep't of Envtl.
Management, 729 F. Supp. 792. The Eleventh Circuit
reversed in part and held that the Holley Bill violated
the inherent prohibitions of the Commerce Clause
because it "plainly distinguishes among wastes based
on their origin, with no other basis for the
distinction." National Solid Waste Ass'n v. Alabama
Dep't of Envtl. Management, 910 F.2d 713, 720,
amended, 924 F.2d 1001 (1991), cert. denied, 111 S. Ct.
2800 (1991). In particular, the Eleventh Circuit found
that the State's interest in ensuring adequate capacity
for Alabama-generated wastes and the dangers of
transportation of hazardous wastes did not justify the

4

State's differential treatment of out-of-state wastes.
910 F.2d at 720.

In 1990, the Alabama legislature enacted Act No. 90-
326, which represents the third attempt in as many
years to curtail petitioner's interstate commerce in
hazardous wastes. Three parts of Act No. 90-326 are
at issue here. First, Section 22-30B-23(b) imposes “an
additional fee levied at the rate of [$]72.00 per ton"
for “waste and substances which are generated outside
of Alabama and disposed of at a commercial site in
Alabama." Pet. App. 106a (the Additional Fee).
Second, Section 22-30B-23(a) levies "a fee to be paid by
the operators of each commercial site for the disposal
of hazardous waste in the amount of [$]25.60 per ton."
Pet. App. 106a. (the Base Fee). Finally, the Act
restricts the amount of hazardous wastes that may be
disposed of at any commercial site during any twelve-
month period after October 1, 1991, to the amount that
was disposed of during the period July 15, 1990 to
July 14, 1991. Jd. at 112a (the Cap Provision). The
Act was to become effective on July 15, 1990. Id. at
113a.

Petitioner commenced this action in Alabama circuit
court challenging Act No. 90-326 on federal and state
constitutional grounds. After a trial, the circuit
court found that the $72 Additional Fee is
unconstitutional as a violation of the Commerce
Clause (Pet. App. 85a). It found that hazardous
wastes are an article of interstate commerce and that
the Additional Fee facially discriminates against such
commerce. IJ/bid. The trial court also concluded that
the State had failed to meet the heavy burden of
demonstrating that the discriminatory legislation
advances a legitimate state purpose that cannot be
adequately served by non-discriminatory alternatives.
Id. at 85a-86a. The court found that legitimate state
concerns about the dangerousness of hazardous waste
and the desire to minimize the generation of such
wastes could more directly be met by _ non-

5

discriminatory measures; there was no demonstration
that the Additional Fee could be deemed a
compensatory tax to equalize the burden on in-state
and out-of-state generators; and the State's interest in
forcing other States to develop waste disposal capacity
does not justify discriminatory legislation. Jd. ai 86a-
88a & n.6.

On the other hand, the circuit court upheld both
the Base Fee and the Cap Provision of Act 90-326.
The court ruled that because those provisions do not
facially discriminate against interstate commerce, the
balancing test set forth in Pike v. Bruce Church Inc.,
397 U.S. 137 (1970), should be used to assess their
validity. Pet. App. 66a, 72a. Applying that test, the
court concluded that the local benefits of the Base
Fee's compensation for the financial risks to the State
for hazardous waste disposal activities and _ its
deterrence to landfilling hazardous wastes are not
clearly outweighed by the impact on_ interstate
commerce. /d. at 67a. Similarly, the Cap Provision
was held to be supported by legitimate local interests
in conserving the State's natural resources and
protecting its citizens' health and safety that are not
clearly outweighed by the impact on_ interstate
commerce. /d. at 72a-73a. The court nevertheless
noted (id. at 73a, 92a-93a) that the invalidity of the
Additional Fee might require modification of the Cap
Provision to reflect a base period unaffected by
unconstitutional discrimination.

Both petitioner and the respondents appealed to the
Alabama Supreme Court. That court upheld the
circuit court's rulings on the Base Fee and Cap
Provision on the basis of the lower court's opinion.
Pet. App. 17a-37a. It reversed the circuit court's
ruling that the Additional Fee is unconstitutional as a
violation of the Commerce Clause. The state supreme
court found that the Additional Fee serves legitimate
local purposes that can not adequately be served by

6

nondiscriminatory alternatives -- specifically (id. at
44a):

(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.

The court noted that hazardous wastes are
permanently buried at Emelle and stated that "nothing
in the Commerce Clause compels the State of
Alabama to yield its total capacity for hazardous
waste disposal to other states" (id. at 45a). It
concluded that a non-discriminatory tax on _ both
Alabama and out-of-state generated waste is not an
available alternative "because Alabama is bearing a
grossly disproportionate share of the burdens of
hazardous waste disposal for the entire country" (id.
at 46a).

Justice Houston concurred. He reasoned that
hazardous waste is not an article of commerce
protected under the Commerce Clause of the
Constitution, observing that the contrary conclusion of
the Eleventh Circuit is not binding on the state
supreme court (Pet. App. 48a).

DISCUSSION

The Supreme Court of Alabama and the United
States Court of Appeals for the Eleventh Circuit have
come to opposite conclusions concerning restrictions
by the State of Alabama on interstate commerce in
hazardous waste disposal. The state court has ruled
in this case that the disproportionate role played by

7

the Emelle Facility in the national waste disposal
effort is a legitimate state concern that justifies
discriminatory burdens placed on disposal of wastes
generated in other States. The Eleventh Circuit has
ruled that such concerns do not authorize the State of
Alabama to enact legislation that discriminates on the
basis of the State of origin of the waste. In light of
the Emelle Facility's role in the national waste
disposal effort, this conflict concerning the law
governing that facility, by itself, merits resolution by
this Court.

More broadly, however, the struggle between
petitioner and the State of Alabama does not stand
alone on the legal landscape. Disposal of waste --
whether solid, hazardous, or nuclear -- has become an
extremely controversial and divisive issue across the
Nation. Many state and local governmental units have
sought to relieve pressure generated by local
constituencies by enacting legislation that
discriminates against wastes generated out-of-state.
Until the present case, in the absence of authorizing
federal legislation,! those legislative efforts have
regularly been struck down under authority of this
Court's decision in City of Philadelphia v. New
Jersey, 437 U.S. 617 (1978). The Supreme Court of
Alabama, however, found that case inapplicable in the
context of hazardous waste disposal. This Court's
precedent is likely to encourage similar efforts by

l See, e.g., the Low Level Radioactive Waste Policy Amendments
Act of 1985, 42 U.S.C. 2021b-2021i, discussed in the government's brief
in opposition in State of New York v. United States, County of
Allegheny v. United States, and County of Cortland v. United States,
Nos. 91-543, 91-558, and 91-563.

8

other States.2 Review by this Court is, in our
judgment, therefore is warranted. .

1. The State of Alabama plainly has legitimate and
well-founded concerns about the disposal of hazardous
wastes at the Emelle Facility. The health, safety and
welfare of its citizens in the area of the facility, the
safety of travelers on the roads leading to the facility,
and the future condition of the natural resources and
the environment of the State are all potentially
implicated by the disposal of hazardous wastes. That
being so, the State of Alabama enjoys a large measure
of legislative and regulatory authority over the Emelle
Facility under its traditional police powers.

The Alabama Supreme Court relied upon many of
these concerns as the basis for upholding the
Additional Fee enactment in this case (Pet. App. 44a).
But because these legitimate state concerns can
effectively be served by non-discriminatory enactments,
we are unpersuaded that under this Court's
jurisprudence they justify the Additional Fee
requirement's discriminatory treatment of wastes
generated out-of-state.

2 In Hazardous Waste Treatment Council v. South Carolina, 945
F.2d 781, 792 (1991), the Fourth Circuit recently summarized the
dangers inherent in such a proliferation of restrictive state laws:

[Tjhe effect of every state designing particular limits and
bars for out-of-state waste could be catastrophic. Indeed, such
treatment of hazardous waste—in essence, ensured
nontreatment of some hazardous waste—might destroy not
only the theoretical principle of a national economic union,
but contains the real potential to destroy land, if not also
persons, within the union. [BJetter that hazardous waste be
treated and disposed of somewhere, even if spread
disproportionately among the states, than that future
Superfund sites arise.

—_—_ = -

9

In addition, the Alabama Supreme Court justified
the discriminatory nature of the Additional Fee as a
legitimate attempt to force

the states that are using Alabama as a
dumping ground for their hazardous wastes to
bear some of the costs for the increased risk
they bring to the environment and the health
and safety of the people of Alabama.

Pet. App. 44a. A tax or fee imposed upon the disposal
of hazardous waste that is designed to compensate the
State for the expenses of regulating, monitoring and
dealing with the adverse effects of that activity
clearly serves a legitimate state purpose. But a fee
that discriminates against waste generated out-of-state
is not necessary or appropriate for this purpose.
Indeed, if a disproportionate portion of the hazardous
waste disposed of in Alabama is generated out-of-state,
then that same portion of a non-discriminatory tax on
waste disposal would obviously be borne by generators
in other States.

Alabama could properly impose a compensatory tax
on interstate commerce in hazardous waste "that
equalizes previously unequal tax burdens by offsetting
‘a specific tax imposed only on intrastate commerce
for a substantially equivalent event." American
Trucking Ass'ns, Inc. v. Scheiner, 483 U.S. 266, 287
(1987); accord, e.g., Maryland v. Louisiana, 451 U.S.
725, 759 (1981). But the circuit court correctly found
(Pet. App. 88a n.6) that the State had not adequately
demonstrated that the Additional Fee served as a
compensatory tax for other taxes borne by in-state
generators (ibid.). The Alabama Supreme Court did
not disturb this finding, and respondents do _ not
contend in this Court that the Additional Fee can be
justified as a traditional compensatory tax.

Nor does the State's unquestioned power to protect
its environment against the risk of degradation,
recognized in Maine v. Taylor, 477 U.S. 131 (1986),

10

justify the discriminatory Additional Fee. Maine v.
Taylor upheld the State's ban on the importation of
live bait fish; the dispositive fact in that case was
that the out-of-state bait fish contained a parasite that
the local fish did not, and thus posed a new risk.
Alabama has not established that the out-of-state
waste disposed of at Emelle is significantly different
from such waste generated in Alabama.?

Respondents assert (Hunt Br. in Opp. 12-13)4 that
the discriminatory fee is warranted by the risk that,
if the State is ultimately required to bear the costs
of cleaning up the Emelle Facility, it will be unable
to obtain any meaningful contribution from the out-of-
state generators. But federal law provides the State
with ample authority to impose the financial costs of
cleaning up the Emelle Facility on the generators of
the waste -- both in-state and out-of-state. The
Comprehensive Environmental Response, Compensation
and Liability Act (CERCLA), 42 U.S.C. 9601 et seq.,
generally subjects petitioner, as owner and operator of
the facility, and the generators of the waste to strict,
joint and several liability for "all costs of removal or
remedial action incurred by a State." 42 U.S.C.
9607(aX(1) and (3)A). See, e.g., O'Neil v. Picillo, 883
F.2d 176 (ist Cir. 1989), cert. denied, 493 U.S. 1071
(1990). Furthermore, it is far from certain that any
particular in-state generator, currently exempted from
the Additional Fee, will be in existence or located in
Alabama when and if clean-up of Emelle is eventually

3 Par from casting doubt on the continuing vitality of City of
Philadelphia, Maine v. Taylor cites and quotes that decision with
approval several times. See 477 U.S. at 148-149 & n. 19, 152.

4 “Hunt Br. in Opp.” refers to the brief in opposition filed by counsel
of record Bert S. Nettles. “Sizemore Br. in Opp.” refers to the brief in
opposition filed by counsel of record William Coleman.

1]

required.° Accordingly, respondents' asserted
justification for the Additional Fee's disparate
treatment of out-of-state generators based on the risk of
ultimate state liability is highly speculative. Such
speculative concerns do not support that Fee under this
Court's precedents. To be sure, those concerns may
properly be presented to Congress as a basis for urging
enactment of federal legislation specifically authorizing
States within which major hazardous waste disposal
facilities are located to adopt designated limitations on
interstate waste shipments.® See Sizemore Br. in Opp. 7-8
(national waste disposal problems involve "policy issues in
need of a comprehensive legislative solution by
Congress"). But Congress has not acted in this respect.
Absent such federal legislation, this Court's decisions
make clear that the State is precluded by the Commerce
Clause from granting Alabama's businesses preferential
access to the Emelle Facility and imposing upon out-of-

5 In any event, any risks of ultimate state liability for the Emelle
Facility that do exist are borne by the State and its taxpayers as a
whole rather than the in-state generators of hazardous waste favored
by the Additional Fee provision.

6 For example, Congress might consider the enactment of federal
statutory provisions similar to those contained in the Low-Level
Radioactive Waste Policy Amendments Act of 1985, 42 U.S.C. 2021b-
2021i, discussed in the government’s brief in opposition in State of New
York v. United States, County of Allegheny v. United States, and
County of Cortland v. United States, Nos. 91-543, 91-558, and 91-563. In
fact, several bills contemplating limitations on, and the imposition of
differential fees for, interstate waste disposal are currently pending
before the House Committee on Energy and Commerce (e.g., H.R. 739,
1525, 2380, 102d Cong., Ist Sess. (1991)) and the Senate Committee on
Environment._and Public Works (e.g., S. 153, 174, 197, 241, 592, 102d
Cong., Ist Sess. (1991)). Representatives of EPA have testified before
these Committees regarding several of these bills, and the National
Governor's Association has recently adopted a policy statement
supporting congressional authorization of differential fees.

12

state generators a financial burden that the State is
unwilling to place on its own citizens.’ As in City of
Philadelphia v. New Jersey, 437 U.S. at 627, the State is
pursuing entirely legitimate goals by means forbidden by
this Court's precedents interpreting the Commerce
Clause.

Several federal courts of appeals have found this Court's
decision in City of Philadelphia v. New Jersey, supra,
applicable to discriminatory state barriers to trade in
hazardous waste disposal despite the obvious risks to the
environment inherent in such substances. National
Solid Wastes Management Ass'n v. Alabama Dep't of
Envtl. Management, 910 F.2d at 718-719; Hardage v.
Atkins, 582 F.2d 1264, 1266 (10th Cir. 1978); ef. Illinois v.
General Electric Co., 683 F.2d 206, 214 (7th Cir. 1982)
(spent nuclear fuel) cert denied, 461 U.S. 913 (1983);
Washington State Bldg. & Constr. Trades Council v.
Spellman, 684 F.2d 627, 631 (9th Cir. 1982) (low level
radioactive waste), cert. denied, 461 U.S. 913 (1983). See
also Hazardous Waste Treatment Council v. South
Carolina, 945 F.2d 781, 787 (4th Cir. 1991) (preliminary
injunction upheld on Commerce Clause grounds).8 The

7 This Court has long recognized that the Commerce Clause
imposes restraints on discrimination by one State against the products
of another that are analogous to the express limitations of Art. I, § 10,
Cl. 2 on the power of a State, without congressional consent, to impose
imposts or duties on imports from or exports to foreign countries. See,
e.g., Woodruff v. Parham, 75 U.S. (8 Wall.) 123, 136-140 (1869); Coe v.
Errol, 116 U.S. 517, 526 (1886). The facially discriminatory tax imposed
by the Additional Fee is the functional equivalent of a tariff at the
State’s border. =

8 Federal district courts, relying on City of Philadelphia, have also
invalidated discriminatory disposal fees. See National Solid Waste
Management Ass'n v. Voinovich, 763 F. Supp. 244, 262-263 (S.D. Ohio
1991), appeal pending, No. 91-3466 (6th Cir.); Government Suppliers
Consolidating Services, Inc. v. Bayh, 753 F. Supp. 739, 769-770 (S.D.
Ind. 1990).

13

attempt of the Supreme Court of Alabama to distinguish
this Court's precedent in City of Philadelphia on the
ground of the greater environmental! risks associated with
hazardous waste is accordingly unsupported by lower
court precedent. Where, as here, a facility is duly licensed
and permitted for treatment and disposal of wastes
generated within the State, we believe that City of
Philadelphia's rationale precludes discrimination against
similar wastes generated in other States unless Congress
authorizes such discrimination -- which it has not done.
The Additional Fee therefore does not meet the governing
legal standard, which is whether Alabama "has legitimate
reasons, ‘apart from their origin, to treat [out-of-state
waste products] differently." Maine v. Taylor, 477 U.S. at
152, quoting City of Philadelphia v. New Jersey, 437 U.S.
at 627. Accordingly, the decision below upholding the
Additional Fee is out of step with this Court's holding in
City of Philadelphia and post-Philadelphia lower court
precedent.

2. The second question presented is whether imposition
of a Base Fee of $25.60 per ton for substances consigned to
a commercial hazardous waste disposal facility within the
State violates the Commerce Clause despite its facial
neutrality. Petitioner argues that the legislation
categorizes waste disposal activities in a manner that
subjects almost all waste generated outside the State to
the Base Fee while practically exempting in-state
generated waste. Pet. 18. This, together with the
evidence of an express legislative purpose to discriminate
against out-of-state generated waste, it argues, is
sufficient to subject the Base Fee requirement to the
strict scrutiny under the Commerce Clause applicable to
facially discriminatory state actions. Pet. 18-21.

Respondents do not dispute that the Base Fee imposes a
tax on interstate commercial activity. See Hunt Br. in
Opp. 16; Sizemore Br. in Opp. 16-20. Instead, they contend
that the Base Fee does not discriminate against interstate
waste, but rather reflects a rational distinction between
disposal of hazardous waste by landfill -- which occurs

14

almost exclusively at Emelle -- and the surface
containment or treatment of waste water, which includes
the bulk of the noncommercial disposal of hazardous waste
generated within the State. Sizemore Br. in Opp. 18-19;
Hunt Br. in Opp. 16-19. Respondents also assert that,
because the Base Fee does not discriminate against
interstate commerce on its face or in its effects, the
Alabama courts correctly upheld it under the balancing
test of Pike v. Bruce Church, Inc., 397 U.S. 137, 142
(1970)("Where the statute regulates evenhandedly to
effectuate a legitimate local public interest, and its effects
on interstate commerce are only incidental, it will be
upheld unless the burden imposed on such commerce is
clearly excessive in relation to the putative local
benefits."). See Pet. App. 65a-67a; id. at 20a.

We submit that the Alabama courts erred in using the
Pike balancing test -- which applies to disparate effects of
regulatory measures -- to evaluate petitioner's challenge
to the Base Fee as in effect a tax on the interstate disposal
of hazardous waste. As this Court explained in Maryland
v. Louisiana, 451 U.S. 725, 754 (1981):

The State's right to tax interstate commerce is
limited, and no state tax may be sustained unless
the tax: (1) has a substantial nexus with the State;
(2) is fairly apportioned; (3) does not discriminate
against interstate commerce; and (4) is fairly
related to the services provided by the State.

Accord, e.g., Complete Auto Transit, Inc. v. Brady, 430
U.S. 274, 287 (1977); Amerada Hess Corp. v. New Jersey
Taxation Division, 490 U.S. 66, 72 (1989).

The Base Fee clearly satisfies three of the four relevant
factors. The first factor requires a threshold inquiry to
ensure that the interstate activity has sufficient
relationship to the State to justify the levying of a tax on
it. Commonwealth Edison Co. v. Montana, 453 U.S. 609,
626 (1981). Here, the fact that the disposal activities
subject to the tax take place within Alabama provides the
necessary state relationship. The second factor, fair

15

apportionment, requires consideration when a number of
States could tax the same activity, raising the problem of
multiple taxation. See Amerada Hess Corp. v. New
Jersey Taxation Division, 490 U.S. at 73. Since the
taxable event here, the disposal of waste, occurs solely
within the State of Alabama, a state tax on that disposal
cannot give rise to multiple taxation problems and raises
no apportionment questions. Cf. Commonwealth Edison
Co. v. Montana, 453 U.S. at 617 (severance tax).

The fourth factor is also satisfied here; the Base Fee is
fairly related to the services provided by Alabama. The
"fair relation" factor does not require a closer fit between
the services provided by the State and the revenue
generated by the tax than that imposed by the Due
Process Clause. Commonwealth Edison Co. v. Montana,
453 U.S. at 622-623. It is sufficient if "the measure of the
tax [is] reasonably related to the extent of the contact" (id.
at 626, emphasis omitted). Accordingly, a tax measured by
the tonnage of wastes disposed of within the State
apparently satisfies the fourth factor.

The difficult question is whether, under this Court's
taxation of interstate commerce jurisprudence, the Base
Fee "discriminates against interstate commerce"
(Maryland v. Louisiana, 451 U.S. at 754). The lower
courts answered this question by first determining that
the Base Fee did not facially discriminate against
interstate commerce, and then holding that it satisfied the
test of Pike v. Bruce Church, Inc., supra. Pet. App. 20a;
id. at 66a-67a. The first inquiry was plainly
underinclusive, because this Court has consistently
looked beyond facial non-discrimination in tax cases to
evaluate the impact of the tax in practical effect and to
evaluate the discriminatory purpose of a tax provision.
See, e.g., Maryland v. Louisiana, 451 U.S. at 756-757;
Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 270 (1984).

The second inquiry is irrelevant. This Court's
precedents do not rely on the Pike test in tax cases. By
its own terms, that test applies to state regulation, not
taxation (see quotation, p. 14, supra). Moreover,

16

considering "putative local benefits" in evaluating a State's
obvious interest in tax revenues would suggest that any
state tax scheme would meet the Pike test. Indeed, in the
present case, the trial court found (Pet. App. 67a) that
"[t]he fee benefits the state by compensating it for the
financial responsibilities and risks it bears on account of
commercial hazardous waste disposal activities." In the
tax context, the Pike test would be virtually no test at all.

But this Court's decisions make clear that the
Commerce Clause ban on discriminatory state taxes is not
so easily avoided. This Court has stated that "a tax may
violate the Commerce Clause if it is facially
discriminatory, has a discriminatory intent, or has the
effect of unduly burdening interstate commerce."

Amerada Hess Corp. v. New Jersey Taxation Division, —

490 U.S. at 75. The Court has applied this test to strike
down state taxes that include credits or offsets for in-state
activities. Maryland v. Louisiana, 451 U.S. at: 756-757;
Westinghouse Electric Corp. v. Tully, 466 U.S. 388, 406-
407 (1984). See also New Energy Co. v. Limbach, 486 U.S.
269 (1988). Even a facially neutral exemption from taxation
is invalid if the exempted product or activity is likely to be
a product of local business and a discriminatory purpose
can be demonstrated. Bacchus Imports, Ltd. v. Dias, 468
U.S. at 270; ef. McKesson Corp. v. Division of Alcoholic
Beverages & Tobacco, 1108. Ct. 2238, 2247 n.15 (1990).

The question presented by this case is nevertheless not
the same as that in the exception, credit or offset cases. In
the present case, the allegation is that when the
legislature defined the taxable activity by limiting it to
disposal at a "commercial site" (Pet. App. 105a), the state
tax captured virtually all interstate commerce in
hazardous waste and excluded almost all in-state
generated waste. The lower courts found (Pet. App. 22a-
24a; id. at 67a-7la) that commercial waste disposal differed
sufficiently from the related non-commercial activity to
permit the Base Fee to withstand an Equal Protection
Clause challenge. It is, however, far from clear that that
very permissive standard suffices in evaluating a dormant

17

Commerce Clause challenge to an_ allegedly
discriminatory tax. This question was not considered
below.

The factual context in which that question is presented
in this case is also in dispute. The parties disagree in this
Court about which in-state hazardous waste activities
should be considered in evaluating the relative impact of
the Base Fee on in-state and interstate commerce. The
major dispute between the parties centers on how to
characterize hazardous wastes undergoing treatment in
surface impoundments. Such impoundments account for
approximately two-thirds of in-state génerated waste (see
Pet. 5 n.2; Sizemore Br. in Opp. 3-4). The findings of fact
in the lower courts do not directly address the status of
these surface impoundments, although the issue was
raised in petitioner's filings.9

The issue is not free from doubt. There are certainly
differences between treatment of hazardous wastes in
surface impoundments and disposal of hazardous wastes in
landfills such as Emelle. As respondents observe
(Sizemore Br. in Opp. 4), the hazardous wastes treated in
surface impoundments are largely wastewater. On the
other hand, the two types of treatment are in many
respects similar. For example, surface impoundments are
regulated under the Resource Conservation and Recovery
Act, 42 U.S.C. 6901 et seq., and are required to have
groundwater monitoring wells to determine whether any
hazardous wastes leaking from the impoundments have
contaminated the underlying aquifer. 40 C.F.R. 265.90.
Thus, to the extent that the Base Fee is designed to
compensate the State for monitoring costs and potential
costs of clean-up, those interests are to some degree

9 Petitioner's argument that the Base Fee is discriminatory in
effect was based upon the figures on hazardous waste that are
described in the petition (Pet. 5 n.2). Furthermore, petitioner
specifically referred to impoundments as hazardous waste facilities
equivalent to commercial waste disposal sites.

18

implicated by the exempted surface impoundments. The
Alabama statute does not explicitly distinguish between
the two types of treatments, and respondents do not
identify any other materials indicating that Alabama in
fact relied on this distinction in enacting the Base Fee
provision.

In light of this unresolved dispute over the appropriate
categorization of surface impoundments, we submit that it
would be premature for this Court to undertake on this
record to define a standard for determining when a state
tax with a disparate impact on like-kind in-state and
interstate commerce unlawfully discriminates against
interstate commerce. If petitioner's categorization of
hazardous waste activities were to be upheld by the lower
courts, and its allegation sustained that the State had
"gerrymandered" its definition of a taxable event so as to
exclude 98 percent of in-state commerce while including
virtually all interstate commerce, the Base Fee probably
should be deemed to discriminate in effect against
interstate commerce within the meaning of this Court's
tax precedents. There would seem to be little analytical
basis for distinguishing between tax schemes with
exceptions, offsets or credits for in-state activities and
those in which the definition of the taxable event has been
artfully drawn in the first instance to exclude comparable
in-state activities. On the other hand, if the courts below
conclude that surface impoundments are not comparable to
landfills, it will be necessary to consider the relevance of
that distinction to the legislative decision to impose the
base fee only on commercial facilities, whatever the nature
of their disposal facilities, particularly given the evidence
of a legislative intent to limit interstate shipments.

In any event, the Alabama Supreme Court used the
wrong test, that of Pike v. Bruce Church, Inc., supra, to
evaluate the constitutional validity of the Base Fee under
the Commerce Clause. Therefore, as to question two of the
petition, this Court should grant, vacate and remand for
further consideration, under appropriate legal standards,
of the validity of the Base Fee.

19

3. The final provision of Act No. 90-326 challenged by
the petitioner is the Cap Provision, which limits the
amount of waste that may be disposed of in any 12-month
period. We submit that, subject to the limitations of the
Due Process, Takings, and Supremacy Clauses, States
have authority to impose non-discriminatory limitations
on the quantities of wastes to be disposed of within their
borders. The Cap Provision of Act No. 90-326, however,
presents two substantial issues. First, as the circuit
court recognized (Pet. App. 73a, 92a-93a), the benchmark
period for determining the waste volume under the Cap
Provision was affected by the discriminatory Additional
Fee. A complete remedy for the effects of the
impermissible Additional Fee should accordingly include
some adjustment of the Cap Provision. Second, the Cap
Provision contains authority for the Governor to waive
the volume limitation if "necessary to protect human
health or the environment in the state" or if necessary to
allow the State to comply with its obligations to assure
disposal capacity. Pet. App. 113a. If this waiver provision
allows a waiver to respond to a public health or
environmental emergency only in Alabama, it raises a
substantial issue under the Commerce Clause of
underinclusion. Cf. Hazardous Waste Treatment Council
v. South Carolina, 945 F.2d at 791 n.14 (questioning
constitutionality of a requirement that a certificate of
need to construct a new facility may not consider out-of-
state need).19

For both of the above reasons, we submit that the third
issue presented in the petition requires further

10 Respondents suggest that the Cap Provision also permits the
State “to provide for disposal of out-of-state waste it guaranteed in the
regional agreements required under [The Superfund Amendments and
Reauthorization Act, 42 U.S.C, 9604(c)(9)]" (Hunt Br. in Opp. 22).

The appropriate interpretation of this state statutory provision should
be considered by the courts below in the first instance.

20
consideration by the courts below before it would be ripe
for review by this Court.

CONCLUSION

The petition for a writ of certiorari should be granted.
As to the first question presented, the Court may wish to
consider summary reversal. As to the second and third
questions presented, the judgment below should be

. vacated, and the case remanded for further consideration
under the proper legal standards.

Respectfully submitted.

KENNETH W.STARR
Solicitor General

BARRY M. HARTMAN
Acting Assistant Attorney
General

LAWRENCE G. WALLACE
Deputy Solicitor

HARRIET S. SHAPIRO
Assistant to the Solicitor

General
PETER R.STEENLAND, JR.
GERALD H. YAMADA ANNES. ALMY
Principal Deputy General Attorneys

Counsel

LISA K. FRIEDMAN
Associate General
Council for Solid Waste -
and Emergency Response
ANGELIA SOUDER BLACKWELL
Attorney
Environmental Protection .

Agency

JANUARY 1992

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0185%3A08. Public record. Not legal advice.