# Respondents Brief — Chemical Waste Management, Inc. v. Hunt > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0185%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1992 - **Citation:** 504 U.S. 334 ## Text ee” _ GUY HUNT, GOVERNOR OF THE STATE OF ALABAMA; 2. Ae ALABAMA DEPARTMENT OF REVENUE; and : James M. SizeMorsz, Jk., COMMISSIONER OF THE ae ALABAMA DEPARTMENT OF REVENUE, Respondents. On Writ of Certiorari to the Supreme Court of Alabama BRIEF FOR THE RESPONDENTS Wi1iAM D. COLEMAN * Jim B. GRANT, JR. QUESTIONS PRESENTED 1. Whether Alabama may control the importation into the State of hazardous waste which endangers the health and safety of the State’s citizens and the integrity of its environment. 2. Where the health and safety of Alabama’s citizens, and its environment, are placed at risk by the landfilling of hazardous waste at Petitioner’s commercial facility (which receives 85% to 90% of its hazardous waste from out-of-state), does the Commerce Clause prohibit Ala- bama from limiting the health, safety and environmental risks by imposing a disincentive in the form of a $72 per ton disposal fee upon imported hazardous waste while providing for the regulated disposal within the State of the State’s own such waste. (i) ii RULE 29.1 STATEMENT All parties to this case in the Court below are listed in the caption. TABLE OF CONTENTS GUmotIONS PRESENTED ....................................s00000- | STATEMENT OF THE CASE ................................20.200-- A. The Substances Permanently Buried at Peti- tioner’s Emelle, Alabama Facility Pose Serious Threats to Human Health and the Environ- a B. Emelle Is the Largest Hazardous Waste Landfill in the Country, and the Volumes of Waste Land- filled There Substantially Increased in the Years Preceding Act No. 90-326 ............0...00.000.ee | C. While Hazardous Waste Is Regulated, the Regu- lations Do Not Assure That Permanent Burial of Hazardous Waste Is Safe .....................0.......... D. Current Financial Assurance Requirements Are Inadequate To Protect Against the Perpetual ARGUMENT Alabama’s Facially Discriminatory Fee Structure, Which Imposes A $72 Per Ton Additional Fee On Out-Of-State Waste, Does Not Violate The Com- merce Clause _...... Ne. coemeaces I. Alabama Has Legitimate Concerns About The Landfilling Of Large Volumes Of Imported Hazardous Waste Il. Philadelphia v. New Jersey Is Not Controlling In The Context Of Real And Substantial Health, Safety And Environmental Risks _.. (iii) 17 17 19 III. iv TABLE OF CONTENTS—Continued Alabama's Differential Fee Structure, As A Measure To Control The Movement Into The State Of Dangerous Waste Materials, Is A Valid Exercise Of The State’s Police Power Under vironmental Dangers Documented in This Case, Alabama May Control the Movement of Hazardous Waste Into the State, While Providing for Regulated Disposal Within the State of Its Own Waste ..........00........ ale B. The Quarantine Cases Were Decided on Principles Which Form the Basis for This Court’s More Recent Decisions, and Are In- distinguishable From This Case .................. C. Petitioner’s “Different Threat” Theory and the Solicitor General’s “Comparable Treat- ment Rule” Are Based on an Erroneous In- terpretation of This Court’s Decision in ERE Ae ee iiemeeele D. A Standard of General Application, Based on the Construction of the Commerce Clause Argued by Petitioner and the Solicitor Gen- eral, Would Invalidate Scores of Existing State Health, Safety, Environmental and Quarantine Laws and Regulations, Many of Which Are Identical or Indistinguishable From Measures Previously Upheld by This heal BIS Ny huahaaunshdeedbaadaabebiadecs E. The Additional Fee Is Constitutionally In- distinguishable From Any Other Form of Regulatory Control Over [mportation of Articles Which Spread Disease, Pestilence and Death _. SAE FER RD Sasol Page 24 24 29 33 35 36 CONCLUSION . v TABLE OF CONTENTS—Continued IV. Alabama’s Differential Fee Structure Serves A Legitimate State Purpose Which Cannot Be Adequately Served By Any Nondiscriminatory I ii EA cAI aa TOR A. Alabama’s Differential Fee Structure Is Demonstrably Justified by Valid Factors Unrelated to Economic Protectionism ............ B. Alabama’s Legitimate Purpose Cannot Be Adequately Served by Any Nondiscrimina- Ur ai a . The Public Interest In The Safe Management Of Hazardous Waste Would Be Better Served By Recognizing, Rather Than Destroying, The Abil- ity Of The States To Control The Interstate Movement Of Hazardous Waste A. A Holding by This Court That States Are Powerless To Control the Importation of Hazardous Waste Would Virtually Assure That No State Will Permit the Development of Any New Commercial Hazardous Waste ee B. Affirming the Decision of the Supreme Court of Alabama Will Not Adversely Affect Proper Management of Hazardous Waste _.. ele ieeied tht ht hhteee LL EEEE LLL LL LTT LETT eee Page 39 39 45 47 47 50 vi TABLE OF AUTHORITIES Cases Page Asbell v. Kansas, 209 U.S. 251 (1908) .......... eee 20, 32 Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 TINTED ciidhdicatabialaitieenethpadiberiateabscumblerstiddismnesiguilenéiatebeaticots 20 Bowman v. Chicago & Northwestern R. Co., 125 ETERS LLP aT OE! VE 20, 36 Clason v. Indiana, Ind. ——, 17 N.E.2d 92 (1938), aff’d, 306 U.S. 442 (1939) 2.0000... 26, 30 Clason v. Indiana, 306 U.S. 442 (1939) ........ 20, 25-27, 30 Compagnie Francaise v. State Bd. of Health, Lou- GOUURE, BID TE. BD CRUD neckecen eects eccecctescseeseees 20, 29 Crossman v. Lurman, 192 U.S. 189 (1904) _......... 20 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824)..... 14, 20 H. P. Hood & Sons v. DuMond, 336 U.S. 525 ........ 22 Hannibal and St. Joseph R.R. Co. v. Husen, 95 RIE ICES 20, 31 Kimmish v. Ball, 129 U.S. 217 (1889) 2000000000 0... 20, 32 Louisiana v. Texas, 176 U.S. 1 (1899) 0.000000... 20 Maine v. Taylor, 477 U.S. 131 (1986) ...0 14-16, 20 Mendicoa v. Wyoming, 780 P.2d 1346 (Wyo. SII ticsacicnleh died haleehisdhinsnasbdinediumierdidaaincsdichtmmnsiiaacidaassenes 25 Minnesota v. Cloverleaf Creamery Co., 449 U.S. a ae 21 Mintz v. Baldwin, 2 F. Supp. 700 (N.D.N.Y.), gp Se he SS S| eee 30, 31, 32 Mintz v. Baldwin, 289 U.S. 346 (1933) ........20, 30, 31, 37 Missouri, Kansas, & Texas R. Co. v. Haber, 169 A ae BI i Ba 20 New Energy Co. of Indiana v. Limbach, 486 U.S. ne eae A siroernars said 16, 39, 45 Oregon-Washington R. & Nav. Co. v. Washington, ge ERE Rs ltae or roa 20, 32 Philadelphia v. New Jersey, 437 U.S. 617 (1978) .. 15-16, 19-23, 29, 47, 49 Pike v. Bruve Church, Inc., 397 U.S. 137 (1970) ..... 31 Rasmussen v. Idaho, 181 U.S. 198 (1901) ............... 20 Reid v. Colorado, 187 U.S. 137 (1902)... 20 Robertson v. California, 328 U.S. 440 (1946) ....... 22 Sligh v. Kirkwood, 237 U.S. 52 (1915) 00000. 20 Smith v. St. Louis & Southwestern R. Co., 181 U.S. 248 (1901) vii TABLE OF AUTHORITIES—Continued Page Sporhase v. Nebraska, 458 U.S. 941 (1982) ........... 22 State v. Lovelace, 228 N.C. 186, 45 S.E. 2d 48 > a a ee 25 U.S. v. Taylor, 752 F.2d 757 (1st Cir. 1985), rev'd sub nom. Maine v. Taylor, 477 U.S. 131 (1986)... 15, 47 Winkler v. Colorado Dep’t of Health, 193 Colo. 170, Rk OE EF, ee eee 25 Wyant v. Figy, 340 Mich. 602, 66 N.W.2d 240 il tia i. cies dana anansdamsniviincocnbinenmmibagiinne 25 Wyoming v. Oklahoma, U.S. ——, 117 L.Ed. I id cael a ae 39 Statutes and Regulations Ala. Admin. Code, Chap. 80-3-1 —..............00000..-.... nts 31 Ala. Code § 22-BOB-1 () ..................-.2.---0000--ccseseeeeeseeee 13 Ark. Stat. Ann. § 2-22-11 _.... SC ee aE CA 36 Conn. Gen. Stat. Ann. § 22-308 __..............-----.............. 36 Conn. Gen. Stat. Ann. § 22-325..........-..--..... ene 36 Del. Code Ann. tit. 3, § 7304... proton eheet 36 Ss I ID on. cssscernssncnsnnininsccnneesonnesons 36 I I aenanesintncetenensesssinabias 27, 36 III... scncepenetenntntnscnamssnceeeonanenns 36 Ind. Code Ann. § 15-2.1-16-15 ................... lech aateddicah = 26 Mass. Gen. Laws Ch. 129, § 14D ................. cigieiantl Commerce Clause standard urged upon this by Petitioner and the Solicitor General se Sharh far broader than the context of state measures to control dangerous wastes. A standard of general application *4 See cases cited supra n.23. 36 based on the construction of the Commerce Clause argued by Petitioner and the Solicitor General, would invalidate scores of existing state health, safety, environmental and quarantine laws and regulations, many of which are identical or indistinguishable from measures previously upheld by this Court.** The only way to hold for Peti- tioner in this case without invalidating state measures which control the spread of other forms of “disease, pes- tilence and death”,** is to carve out a special, unique rule under the Commerce Clause for the waste involved in this case. Such meticulous carving is more appropriately the role of Congress than of a Court enunciating con- stitutional principles. E. This Additional Fee Is Constitutionally Indistin- guishable From any Other Form of Regulatory Con- trol Over Importation of Articles Which Spread Disease, Pestilence and Death. This Court’s decisions establish that states may im- pose such restrictions on interstate commerce as may be appropriate for public health and environmental pro- tection. Petitioner and amici attempt to distinguish *3 Examples of state statutes which appear to facially violate the Solicitor General’s “equal treatment rule” include: Ark. Stat. Ann. § 2-22-11 (controlling importation of bees); Conn. Gen. Stat. Ann. $ 22-325 (poultry); id. § 22-308 (cattle and goats); Del. Code Ann. tit. 3, § 7304 (cattle) ; Ga. Code Ann. § 4-4-119 (horses) ; id. § 4-5-8 (dead animals); Idaho Code § 25-214A (livestock); Mass. Gen. Laws Ch. 129, §14D (hogs); R.J. Gen. Laws §§ 4-4-19, 4-5-7 (animals) ; Vt. Stat. Ann. tit. 6, § 1461 (animals). 36 As this Court stated in Bowman v. Chicago & Northwestern R. Co.: “Doubtless the States have power to provide by law suitable measures to prevent introduction into the States of articles of trade, which, on account of their existing condition, would bring in and spread disease, pestilence, and death .... The self- protecting power of each State, therefore, may be rightfully exerted against their introduction, and such exercises of power cannot be considered regulations of commerce prohibited by the Constitution.” 125 U.S. at 489. | 4 37 Maine v. Taylor and the older quarantine cases by argu- ing that the Additional Fee is merely a tax, and not a ban on importation. This Court’s prior decisions uphold- ing laws restricting commerce for health and environ- mental reasons have not always involved complete pro- hibitions on importation. For example, the New York measure upheld in Mintz v. Baldwin allowed cattle to be brought into the state for grazing, feeding, or slaughter. The measure was designed to control the risk by prevent- ing cattle from moving into breeding or dairy herds, where the risks were greater. As the Court has stated, such measures “must vary with the nature of the disease to be defended against.” Smith v. St. Louis & South- western R. Co., 181 U.S. at 257. “It is the character of the circumstances which gives or takes from a law or regulation of quarantine a legal quality.” Jd., 181 U.S. at 258. Under the circumstances of this case, an economic disincentive to the importation of waste is an appropriate measure to control the level of risk to which the State is exposed. The use of an economic disincentive to influence and regulate behavior is not a novel idea, and is especially appropriate in the area of environmental regulation be- cause it both allows for and forces a transition to alter- natives while allowing the greatest flexibility in develop- ing alternatives to the discouraged activity. For example, in sections 4861-62 of the Internal Revenue Code, Con- gress has implemented an economic disincentive in the form of an excise tax on ozone-depleting chemicals. The excise is scheduled to increase annually to ratchet up the disincentive, thereby increasing the incentive to find and use alternatives. Similarly, the “Gas Guzzler” excise tax in section 4064 of the Jnternal Revenue Code imposes a deterrent levy of up to $7,700 (as doubled in 1990) on cars failing to meet specified fuel economy standards. These measures, like the Additional Fee, are not designed primarily to produce revenue; the ultimate objective is 38 that the environmental measures work and progressively produce less revenue.* Maine v. Taylor and the older quarantine cases in- volved the spread of harmful living organisms—para- sites, smallpox virus, insects, germs in diseased animals or decayed meat. These living organisms multiply on their own; one germ becomes millions of germs, and the millions of germs cause the harm sought to be avoided. Drums of hazardous waste, of course, do not reproduce. It is not necessary, therefore, to exclude the first drum in order to control the potential harm of millions of drums. The risk created by hazardous waste and other similarly dangerous waste materials is proportional to the volume of such waste materials present (J.A. 18, 22, 51), and may be controlled by controlling that volume.** Ob- viously, 40,000 truckloads of hazardous waste in 1989 are far more threatening than four to six thousand truckloads of in-state waste. Pet. App. 62a. The argu- ment that the rationale of the quarantine cases does not apply because Alabama has not totally banned the im- 37 Economic incentives and disincentives are highly desirable, in appropriate contexts, as regulatory measures. This form of regu- lation allows the greatest flexibility for experimentation and innova- tion in the development of a variety of alternative methods to meet the goals of the regulatory action, as opposed to simply requiring industry to adopt the choice of a regulatory agency. The idea, of course, is that Adam Smith’s “invisible hand,” given the incentive, is more likely than the strong arm of government to ultimately produce the optimum solution. In spite of this, the amicus brief of the American Trucking Associations urges this Court to strip the States of all power to use this form of regulation, even though the States clearly would have the power to accomplish the same purposes by regulations requiring specific actions chosen by state regulators. Brief for American Trucking Associations at 12. 38 As the Solicitor General recognizes, “Alabama’s legitimate con- cerns relate to the volume of hazardous waste disposed of within the State, not to its source.” Brief for U.S. at 19 (emphasis in original). Alabama is not controlling the importation of hazardous waste be- cause of its source; the reason, apart from the origin of the waste, is that these large volumes of hazardous waste are dangerous. 39 portation of such waste fails to take into account this significant distinction. Although hazardous waste is not directly analogous to disease organisms in that it takes only one germ to start an epidemic, the release of either may cause disease, pestilence and death, and thus the reasoning of the cases which allow discrimination against interstate commerce applies equally to poisons. In either case, the State’s interest in protecting public health, safety, and the en- vironment allows controls on interstate commerce. The fact that Alabama’s restriction is in the form of an economic disincentive, which allows and encourages a transition, rather than a complete ban which might cause temporary inconveniences to the operations of some in- dustries, does not alter this conclusion. IV. Alabama’s Differential Fee Structure Serves A Legiti- mate State Purpose Which Cannot Be Adequately Served By Any Nondiscriminatory Alternative. A. Alabama’s Differential! Fee Structure Is Demon- strably Justified by Valid Factors Unrelated to Economic Protectionism. Discriminatory statutes are struck down “unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism.” Wyoming v. Okla- homa, U.S. , 117 L.Ed. 2d 1, 22 (1992) (em- phasis added). This Court has defined economic protec- tionism as “ ‘measures designed to benefit in-state eco- nomic interests by burdening out-of-state competitors.’ ” Wyoming v. Oklahoma, 117 L.Ed. 2d at 22 (quoting New Energy Co., 486 U.S. 269, 273). The legislative findings accompanying the Act, the trial court’s findings and the record in this case clearly establish that Alabama’s dif- ferential fee structure was designed to protect the health and safety of the State’s citizens and the integrity of the environment. The health, safety, and environmental dangers resulting from landfilling these wastes are a valid factor, unrelated to economic protectionism, justi- 40 fying Alabama’s restriction on the importation of the wastes.*” The transportation of hazardous waste to landfills, where the wastes remain hazardous forever, merely amounts to moving a problem from one place to another, and postponing the time when the social, environmental and economic costs of finally dealing with the problem must be faced. Transporting such waste from one state to a landfill in another also shifts these social, environ- mental and economic costs to a different set of voters and taxpayers. The bulk of Petitioner’s business consists of shifting these problems from other states to Alabama, and tranferring to Alabama the perpetual economic and social costs. Petitioner argued below that Alabama need not worry about the perpetual risks to the state of holding in its lap what is probably the largest collection of dangerous ma- terials of this type ever assimilated in one place in the history of mankind, simply because the State may at- tempt to recover under federal law future clean-up costs from those responsible for the waste.*’ Aside from the fact that this argument ignores the question of whether the social and environmental consequences can ever be measured in dollars, Petitioner failed to point out the exception which swallows the general rule of joint and several liability. The federal statute cited as creating liability, 42 U.S.C. § 9607, also completely absolves from ** Far from being designed to benefit in-state economic interests, the Act itself anticipates significant adverse local economic effects. Section 7 of the Act (Pet. App. 110a-llla) commits the State to make payments to local government bodies to offset the adverse economic impact of a reduction in the volume of waste disposed of at Emeile. As shown by a Livingston University study (C.R. 471- 508) Petitioner’s waste disposal business is the driving force in the regional economy of west-central Alabama. ** This assumes that the waste generators can be identified. But in the case of out-of-state waste which has moved through brokers, the identity of the generator and the source of the waste is unknown even to Petitioner. See supra n.24. a ee eet : : : 4 41 liability the owner or operator of a facility, the gen- erators of the hazardous waste, all other potentially liable persons where clean-up is made necessary due to acts of third parties or acts of God, such as tornadoes or earth- quakes. 42 U.S.C. § 9607(b). In the event of a major natural disaster, no one would be liable. Petitioner argues that Alabama’s fee structure amounts to simple economic protectionism simply because Alabama hazardous waste generators may dispose of their wastes in Alabama at a cost lower than the cost to out-of-state waste generators to dispose of their wastes in Alabama. — Brief for the Petitioner at 26. Simliarly, if Alabama provides for the management within the State of diseased plants or animals, Alabama producers may be advantaged relative to producers in states which fail to make such provision. In either case, any competitive disadvantage is not caused by the state which has provided for the needs of its own industry, it is caused by the failure of the disadvantaged producer’s state to permit or provide for the infrastructure necessary to that producer’s oper- ations. The failure of one state to permit management within the state of its own dangerous articles does not compel another state to take up its burden. Maine baitfish producers undoubtedly prospered as an incidental effect of Maine’s actions and this Court’s de- cision. And Alabama industry may benefit relative to industries in states which refuse to accept their respon- sibility for permitting the development of waste dis- posal infrastructure, as an incidental effect of Alabama’s efforts to protect its environment and the health of its citizens. These incidental effects do not transform clearly legitimate measures to protect against grave dangers into forbidden economic protectionism. Petitioner and amici argue that it is economically more efficient to ship waste a short distance across state lines than a longer distance within a state. This is obviously true, but it explains only a tiny fraction of the movement of out-of-state waste to west-central Alabama. If the 42 Emelle facility were simply receiving most or all of Mis- sissippi’s waste, and perhaps some from other adjacent or nearby states, it is unlikely that Alabama would have ever felt the need to enact legislation of this kind. But “economic efficiency” and “natural market forces” entirely fail to explain why hazardous waste is hauled all the way across the continent to Alabama. The level of traffic in hazardous waste is not due to the value of commerce in the waste. It is due instead to the fact that other states force such waste to be exported due to the negative value, the risk, of having such waste within the state, and the fear that any attempt at in-state disposal will result in an inability to protect the state from large-volume im- portation of more hazardous waste.*' Political forces, not market forces, drive this flow of hazardous waste. The argument that citizens of other states do not elect Alabama’s officials has another side—Alabama citizens, who are bearing the burden of those other states’ hazard- ous waste, do not elect those champions of the environ- ment in other states who refuse to provide for disposal of their own such wastes. “Send it to Alabama” is far easier to implement than a responsible waste manage- ment policy.” 41 One of the greatest obstacles to the development of new facili- ties in other states is the understandable fear, arising from overly broad interpretations of Philadelphia v. New Jersey, that any effort to manage their own waste will result in litigation which may leave the local citizens powerless to protect themselves from being buried in hazardous waste from other states. Under the interpretation of the Commerce Clause advanced by Petitioner and its supporters in this case, it would be a foolish state indeed that would issue a permit for any new commercial hazardous waste disposal facility. 42 The fact that Alabama has tolerated the landfilling in the State of large volumes of out-of-state hazardous waste in past years, and only acted to slow the flow somewhat after the volumes had become overwhelming, indicates that the interests of out-of-state hazardous waste generators are in fact quite well represented in Alabama. Petitioner, its numerous employees and local businesses serving Petitioner and its employees are a significant in-state economic in- terest adversely affected by any reduction in the volume of hazardous waste imported for landfilling. ee es 43 Similarly, industries in other states find it much more palatable to argue in this Court, as amici, for their “right” to send their waste to Alabama cheaply, than to be environmental villains at home by suggesting that their own state permit the infrastructure necessary for them to operate. Alabama has implemented waste minimiza- tion programs to control and reduce the in-state pro- duction of hazardous waste, but these efforts are futile if the State continues to be overwhelmed by additional waste from outside the State. The only means available to Alabama citizens to protect themselves from the “send it elsewhere” waste management policies of other states is to make Alabama a less attractive alternative than a responsible state waste management policy. Petitioner and its amici argue that Alabama citizens enjoy the products of other states, the production of which may produce pollution such as air or water discharges in those states, but wish to avoid the problems of the hazardous waste generated by that production. Of course, those states are free to control, to whatever extent they desire, those air and water pollution problems. Many of those states are also controlling the hazardous waste pro- duced by requiring that it all be sent out of the state. That an Alabama citizen buys a car does not mean that he must be forced to bear the burden of all of the haz- ardous waste generated in the production of all of the cars sold in the entire nation, simply because citizens of other states wish to avoid the problem entirely. *8 With imported hazardous waste accounting for approximately ninety percent of all hazardous waste landfilled in Alabama, the State’s efforts to reduce the generation of hazardous waste within the State by technical assistance in developing process modifications and other similar means (see R.T. 260-61; 287-88) can have no significant impact in reducing the dangerous volumes of hazardous waste accumulating in the State. If Alabama were able to reduce in-state hazardous waste generation by one-half, this would amount to a mere five percent reduction in the landfilling of hazardous waste in the State, 44 Disposal capacity for Alabama’s waste is not an issue in this case. Petitioner’s Vice President of Operations for the Southern Region, Rodger Henson, testified that the Emelle facility alone had capacity for at least an- other 100 years of operations, without a reduction in the rate of accumulation. J.A. at 9. And there is no shortage of other potential locations. The chalk forma- tion which Petitioner claims to be particularly well suited for locating such facilities is extensive across Alabama (and several other states). J.A. 52; R.T. 471-72, 622. Even with no restrictions on the rate of accumulation of waste at the Emelle facility, there is no imminent (or even foreseeable) shortage of existing capacity for the disposal of Alabama’s own hazardous waste, and no short- age of other potential sites for the disposal of the State’s waste. The argument that Alabama is simply “conserv- ing” a place to dispose of its own hazardous waste is factually erroneous. Petitioner and its amici seek to analogize Alabama’s restriction on the dumping of out-of-state hazardous waste at the Emelle facility to the hoarding of a natural re- source for in-state use. But that facility is not a “nat- ural resource.” It is an engineered, artificially created, man-made facility ‘‘ which exists and operates solely at the pleasure of the State of Alabama. Unlike coal, or oil or natural gas, the Emelle facility did not simply happen to occur in Alabama as an accident of nature. The facility was created only because the State allowed it to be created, and continues to exist and operate only because the State finds it to be in the State’s own in- terest to provide for the disposal of its own hazardous waste. Petitioner’s “right” to bury hazardous waste there is limited to the right to bury only such waste as the ‘4 Petitioner’s expert witness and long-time consultant William Brummond testified that a hazardous waste landfill could be engi- neered to meet regulatory requirements in most if not all states. J.A. 142-43. As explained in the amicus brief submitted by the States of Ohio and Kentucky, there are few locations where a facility cannot be designed to meet regulatory requirements. ee ee nd ee eo eel a ee ee ee ee ee eee eee — 45 State may find to be in the State’s interest to permit. The Emelle facility is not a natural resource; it is an activity, or land use, which poses grave dangers to the State. The State may tolerate this activity only to the extent that it serves the State’s purpose, and the State may limit the activity to that extent. B. Alabama’s Legitimate Purpose Cannot Be Ade- — Served by Any Nondiscriminatory Alterna- Under this Court’s precedents, a state measure re- stricting the importation of out-of-state articles is valid under the Commerce Clause where the measure serves a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.“ New Energy Co., 486 U.S. at 728: Maine v. Taylor, 477 U.S. at 140. It cannot be credibly disputed that Alabama has a legitimate interest in controlling the significant health and environmental risks created by the landfilling of enormous quantities of highly dangerous wastes while, at the same time, providing for the regulated disposal of the State’s own dangerous waste. The differential fee structure is designed to serve this purpose by reducing the volume of such waste imported into the State for landfilling, without also causing Alabama’s own waste to be sent to other states for disposal. The issue raised by Petitioner in this case is whether the final require- ment of the test—that the State’s purpose cannot be served by available nondiscriminatory alternatives—com- pels every state to choose between either refusing to permit disposal within the State of its own hazardous waste, or accepting its responsibility to manage its own waste at the cost of bearing the perpetual burden of serving as the permanent burial ground for the hazardous waste of those states which choose to avoid their own problems. “This is perhaps just another way of saying that what may appear to be a ‘discriminatory’ provi.ion in the constitutionally prohibited sense—that is, a protectionist enactment—may on closer analysis not be so.” New Energy Co., 486 U.S. at 278. 46 Petitioner contends that Alabama’s purpose to reduce the amount of hazardous waste coming into the State for burial could be served as well by imposing an equal fee on disposal of both in-state and out-of-state waste. It the State’s purpose included an attempt to encourage its own hazardous waste to be sent out of the State, Petition- er’s argument would be correct. But Alabama’s purpose is not to force responsibility for its own waste disposal burdens on citizens of other states. The State’s purpose in enacting the differential fee structure is to accept the State’s responsibility for dealing with its own waste, while protecting its citizens and environment from the risks caused by the importation of large volumes of additional wastes. 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 responsi- bility 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 Ala- bama’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 responsi- bility to deal with its own waste problems. Under Petitioner’s theory of the Commerce Clause, the State’s purpose as described above becomes two mutually exclusive goals. A state can accept responsibility for providing for the disposal of its own waste, in which case it must then also accept the burden and inherent dangers of receiving all such wastes from all other states. Or the state can protect its citizens and environment 47 from burial within the State of overwhelming volumes of waste, by abdicating its responsibilities and trying to force its own waste on other states. Given such a choice, the inevitable result is clear. States will refuse to permit the disposal within the state of their own wastes. Those states which do permit waste disposal will be increas- ingly overwhelmed by volumes of out-of-state waste. In fact, this situation has already developed ** as a result of the holdings of several lower federal courts, relying on Philadelphia v. New Jersey to summarily strike down any state measure controlling “waste.” Vv. The Public Interest In The Safe Management Of Haz- ardous Waste Would Be Better Served By Recognizing, Rather Than Destroying, The Ability Of The States To Control The Interstate Movement Of Hazardous Waste. — A. A Holding by This Court That States Are Power- less To Control the Importation of Hazardous Waste Would Virtually Assure That No State Will Permit the Development of any New Commercial Hazardous Waste Disposal Facilities. Public awareness of the dangers associated with haz- ardous waste has made the permitting of new hazardous waste disposal facilities very difficult. A holding by this Court that any such facility which is permitted must be allowed to import and leave the local community burdened with such additional hazardous waste as the operator of the facility may choose would make the permitting of any new commercial hazardous waste landfill a political impossibility. However responsible state officials or the public generally may wish to be about managing their own hazardous waste, no one is so foolish as to allow their local commuiity or their State to become the toxic waste dump for the entire nation. A decision of this Court ** The existing imbalance, between the few states with eommer- cial hazardous waste disposal facilities and the relatively numerous states that effectively ban out-of-state waste by refusing to permit such facilities within the state, is discussed at length in the amicus briefs submitted in support of Alabama. ~*-—e — 48 destroying the ability of the states to manage their own hazardous waste and control the additional burdens of imported waste would perpetuate and worsen the “re- verse Balkanization’” which exists in the disposal of hazardous waste. Petitioner and its industry seek this Court’s assist- ance to maximize the short-term profitability of the few existing sites at the expense of the people in the states where those few sites are located. The public interest, however, as thoroughly examined and discussed in the amicus briefs submitted by the State of South Carolina, the States of Ohio and Kentucky, and the State and Local Legal Center, lies in the states having the ability to plan for and manage hazardous waste disposal. As the capacity of the few existing sites is exhausted, new sites will be needed. These new sites are unlikely to be developed if allowing their development carries the penalty of having to allow them to operate under the rules Petitioner seeks to have enshrined as a require- ment of the Constitution. B. Affirming the Decision of the Supreme Court of Alabama Will Not Adversely Affect Proper Man- agement of Hazardous Waste. The greatest obstacles to the development of new haz- ardous waste disposal facilities include not only the “NIMBY” syndrome, but also the compounding effect of the “fear of Philadelphia” syndrome. Clarification by this Court that States may permit the development of hazardous waste disposal facilities free of the fear that such development will result in the local community being drowned in an uncontrolled flood of imported waste will greatly facilitate, not impair, the development of ade- quate disposal capacity to manage the nation’s waste. The specter of “Balkanization,” and the other horribles paraded across the briefs, are nothing more than scare tactics, an attempt to influence the Court to base a deci- sion on supposed “bad” consequences rather than upon a reasoned analysis of constitutional principles. Balkan- 49 ization has not occurred, and is not likely to occur. It should not be presumed that states will act irresponsibly. Waste importing states like Alabama and South Caro- lina have been quite accommodating considering the bur- dens and risks transferred to them, and have sought merely to slow the rate of increase in these burdens. In- deed, the reasonableness of Alabama’s approach is recog- nized even by those states that are transferring their burdens and dangers to Alabama, as evidenced by the amicus briefs filed in this case as well as the differential fee-based approach in the policy recently adopted by the National Governors Association. See supra n.19 and ac- companying text. Congress has established the federal policy that the exercise by the states of their traditional police powers should be the means by which hazardous waste management is accomplished.” Alabama’s differ- *? As explained in detail in the amicus brief filed by the S te of South Carolina, Congress in RCRA specifically authorized the states to regulate the management and disposal of hazardous wastes. If a state program meets statutory requirements, the state “is author- ized to carry out such program in lieu of the federal program.” 42 U.S.C. 6929(b). Alabama’s program was authorized pursuant to this federal statutory scheme in 1987. 52 Fed. Reg. 46466 (Dec. 8, 1987). EPA review of state program changes is available. 42 U.S.C. § 6926(e) ; 40 C.F.R. §§ 271.22-.23. Review of EPA decisions is avail- able in the Circuit Courts of Appeals. 42 U.S.C. §6973(b). One of the statutory requirements for authorization is that the state pro- gram be consistent with the federal or state programs in effect in other states. 42 U.S.C. § 6926. In regulations promulgated by EPA under its congressionally-delegated authority, EPA treats this con- sistency requirement as the federal statutory standard determining the extent to which states may regulate the interstate movement of hazardous waste; state program provisions, including fees, are au- thorized unless the provision “unreasonably restricts, impedes, or operates as a ban” on the interstate movement of waste. 40 C.F.R. § 271.4(a). EPA has expressly rejected the applicability of the dormant Commerce Clause and determined that several state pro- grams imposing higher disposal fees on out-of-state waste satisfied the congressional standard governing state restrictions on inter- state movement of waste. 54 Fed. Reg. 27170 (June 28, 1989) (Ohio) ; 583 Fed. Reg. 16264 (May 6, 1988) (Maine): 50 Fed. Reg. 46437 (Nov. 8, 1985) (South Carolina). A holding by this Court that a state’s differential fee structure is invalid under the der- 50 ential fee structure is a reasonable and valid exercise of the State’s police power to protect the health and safety of its citizens and the integrity of its environment, and not violative of the Commerce Clause. CONCLUSION The Supreme Court of Alabama correctly followed this Court’s decision in Maine v. Taylor. Alabama has a reason, apart from the origin of the hazardous wastes involved, to control importation of those wastes—they are wastes that are “inherently dangerous to human health and safety and to the environment.” Pet. App. lla. The decision of the Supreme Court of Alabama should be affirmed. mant Commerce Clause would create he anomalous situation of raising questions as to the validity under the dormant Commerce Clause of state fee structures which have been specifically approved by EPA, acting under its delegated congressional authority, as not violating a statutory standard established by Congress in the exer- cise of its commerce power. As explained in the amicus brief submitted by the State of New York, Congress also recognized the necessity of state control over interstate movement of hazardous waste when it enacted the capacity assurance provision of § 104(c) (9) of the Superfund Amendments and Reauthorization Act (SARA), 42 U.S.C. § 9604 (c) (9). BERT S. NETTLES * ALTON B. PARKER, JR. J. MARK HART SPAIN, GILLON, GROOMS, BLAN & NETTLES 2117 2nd Ave. N. Birmingham, AL 35203 (205) 328-4100 G. DENNIS NABORS Chief of Staff MARK D. HEss Legal Advisor to the Governor 11 South Union St. Montgomery, AL 36130 WILLIAM D. LITTLE Assistant Attorney General State of Alabama 11 South Union Street Montgomery, AL 36130 Counsel for Respondent Guy Hunt, Governor of the State of Alabama * Counsel of Record 51 WILLIAM D. COLEMAN * JIM B. GRANT, JR. CAPELL, HOWARD, KNABE & Cosss, P.A. 57 Adams Ave. Montgomery, AL 36104 (205) 241-8000 J. WADE HOPE Legal Division Alabama Department of Revenue 4116 Gordon Persons Bldg. Montgomery, AL 36104 (205) 242-9690 Counsel for Respondents James M. Sizemore, Jr., as Commissioner of the Alabama Depart» nt of Revenue, and the Alabama Department of Revenue * Counsel of Record --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0185%3A14. Public record. Not legal advice.