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

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No. 91-471 —-~

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

CHEMICAL WASTE MANAGEMENT, INC.,

ry Petitwner,

GuY HUNT, GOVERNOR OF THE STATE OF ALABAMA;

ALABAMA DEPARTMENT OF REVENUE; and JAMES

M. SIZEMORE, JR., COMMISSIONER OF THE ALABAMA

DEPARTMENT OF REVENUE,

Respondents.

On Writ of Certiorari to the

Supreme Court of Alabama

BRIEF OF THE

NATIONAL GOVERNORS’ ASSOCIATION,

COUNCIL OF STATE GOVERNMENTS,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL CITY/COUNTY MANAGEMENT

ASSOCIATION, NATIONAL LEAGUE OF CITIES,

AND U.S. CONFERENCE OF MAYORS

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

Of Counsel: RICHARD RUDA *

D. BRUCE LA PIERRE Chief Counsel

WASHINGTON UNIVERSITY MICHAEL G. DZIALO

SCHOOL OF LAW STATE AND LOCAL LEGAL

One Brookings Drive CENTER

St. Louis, MO 63130 444 North Capitol St., N.W.

(314) 935-6477 Suite 345

Washington, D.C. 20001

(202) 484-4850

* Counsel of Record for the

Amici Curiae

WILSON - Epes Printinec Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001 )

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'BEST AVAILABLE COPY! ®

QUESTION PRESENTED

Whether a state law that (1) imposes a substan-

tial in-state burden corresponding to the burden of a

higher disposal fee imposed on out-of-state hazardous

waste, and (2) confers a substantial out-of-state ben-

efit corresponding to the in-state benefit of a lower

disposal fee, is consistent with the Commerce Clause.

(i)

TABLE OF CONTENTS

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cs socecenecevecenecavecseecessosescoceess

INTEREST OF THE AMICI CURIAE ..........................

a cscsncntnecnsnennnensocennscensnes

a sarasrnesenscesonrcencccooces

THE “ADDITIONAL FEE” IS VALID BECAUSE

STATE LAW IMPOSES A SUBSTANTIAL IN-

STATE BURDEN THAT CORRESPONDS TO

THE BURDEN IMPOSED ON OUT-OF-STATE

WASTES, AND CONFERS A SUBSTANTIAL

OUT-OF-STATE BENEFIT THAT CORRES-

PONDS TO THE IN-STATE BENEFIT OF A

EE MIS BTID ccccscnccsescecencensecssenseccsecscsece

A. The Validity Of State Laws Under The Dormant

Commerce Clause Turns On A Careful Assess-

ment Of The Burdens And Benefits Allocated To

Both In-State And Out-Of-State Interests .........

B. The General Rule That State Laws Imposing

Burdens Exclusively On Out-Of-State Interests

Are Invalid Does Not Apply To The Additional

casa saeecncnrtisatinnesnescoceseoess

C. Alabama’s Regulation Of Hazardous Waste Does

Not Burden Out-Of-State Interests Exclusively,

And The Additional Fee Is Valid Because State

Law Imposes Corresponding Burdens On In-

State And Out-Of-State Interests 0.0...

1. Petitioner’s Analysis of the Additional Fee

Is Superficial and Incomplete ........................

(iii)

Page

12

iv

TABLE OF CONTENTS—Continued

2. Alabama’s Authorization of Commercial Haz-

ardous Waste Landfills Imposes Substantial

tn I ie

8. Corresponding In-State and Out-Of-State

Burdens and Benefits ..........................--220-------

4. The Additional Fee Is “Demonstrably Jus-

tified by a Factor Unrelated to Economic

ee

D. The Additional Fee Is Consistent With The

Principle That “Our Economic Unit Is The

IE nhc ictapspetipnisinldinh tien ttle Samena aiid Mieeeieaiaa

I tities xcncasenocieninssisichanthitesssanplaliiiiegitimmtinaiignias

Page

14

17

19

21

25

Vv

TABLE OF AUTHORITIES

CASES Page

H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525

EE, SE Se PER Sd Hi Eee Ree OD 7,22

Hazardous Waste Treatment Council v. South Caro-

lina, 945 F.2d 781 (4th Cir. 1991) —...........0...... 22, 23

Henneford v. Silas Mason Co., 300 U.S. 577 (1937) .. 12

Hughes v. Oklahoma, 441 U.S. 332 (1979) .....9, 10, 20, 22

Hunt v. Washington State Apple Advertising Com-

mission, 482 U.S. 888 (1977) ..............................-.- 10, 13

Kassel v. Consolidated Freightways Corp., 450 U.S.

a eseundiainetinieiiae 7

Lewis v. BT Investment Managers, Inc., 447 U.S.

le 10

Maine v. Taylor, 477 U.S. 181 (1986) —................ passim

Minnesota v. Clover Leaf Creamery Co., 449 U.S.

a iieiiillgs 8,18

Mintz v. Baldwin, 289 U.S. 346 (19338) —......0.0...... 10-11

Mintz v. Baldwin, 2 F. Supp. 700 (N.D.N.Y.), aff'd,

EIA CR a ae 11

New Energy Co. v. Limbach, 486 U.S. 269 (1988) .. 10, 20,

21

Philadelphia v. New Jersey, 437 U.S. 617 (1978) passim

Pike v. Bruce Church, Inc., 397 U.S. 187 (1970)... 8

Raymond Motor Transportation, Inc. v. Rice, 434

RF a Sc LST 7-8

South Carolina Highway Department v. Barnwell

Brothers, 308 U.S. 177 (1988) ............................. 8

Southern Pacific Co. v. Arizona, 325 U.S. 761

SR ce ae ee ee cides aaietionls ae 8

Willson v. Black Bird Creek Marsh Co., 27 US.

NA a iclescemuitlions 7

Wyoming v. Oklahoma, 112 S. Ct. 789 (1992)....7, 8, 19-20

STATUTES AND REGULATIONS

pe eae 15

i ee I raericienescrccpetescnceseeaccsnenteenessoensee 15

IIE cc cscnvenasiarsccensescenmsnsvincessssinoes 4

FO TE 17

8 | ee 22

vi

TABLE OF AUTHORITIES—Continued

Page

50 Fed. Reg. 46440 (1985) 0... ooo ccccccccceceeeeeeeeeeee 23

Low Level Radioactive Waste Policy Amendments

Act of 1985, 42 U.S.C. §§ 2021b-2021i 0... 22

Resource Conservation and Recovery Act of 1976,

42 U.S.C. §§ 6901 et seq. ........-......-.eeeee eee 16, 22, 23, 24

MISCELLANEOUS

High Court to Consider Extra Tax on Tainted

Waste, Montgomery Advertiser, Mar. 31, 1992,

RT ae a Sa ee Spee i NL 5

National Governors’ Association, Policy Positions

| | TTI PRE a eres er eeeeoEr arene Syne, cae ah ne 18, 24

Jeffrey D. Smith, Hazardous Waste Landfill Fa-

cility Information, EI Digest, Mar. 1992 ............ 8, 4-5

Donald H. Regan, The Supreme Court and State

Protectionism: Making Sense of the Dormant

Commerce Clause, 84 Mich. L. Rev. 1091 (1986) .. 13

Ray Vaughan, Toxic Destiny: Changing Ala-

bama’s Future as a Hazardous Waste Dumping

Ground, 43 Ala. \. Rev. 75 (1991) -.................... 24

——_— eee ee

IN THE

Siypreme Cort of the United States

OCTOBER TERM, 1991

No. 91-471

CHEMICAL WASTE MANAGEMENT, INC.,

Petitioner,

v.

Guy HUNT, GOVERNOR OF THE STATE OF ALABAMA;

ALABAMA DEPARTMENT OF REVENUE; and JAMES

M. SIZEMORE, JR., COMMISSIONER OF THE ALABAMA

DEPARTMENT OF REVENUE,

Respondents.

On Writ of Certiorari to the

Supreme Court of Alabama

BRIEF OF THE

NATIONAL GOVERNORS’ ASSOCIATION,

COUNCIL OF STATE GOVERNMENTS,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL CITY/COUNTY MANAGEMENT

ASSOCIATION, NATIONAL LEAGUE OF CITIES,

AND U.S. CONFERENCE OF MAYORS

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

2

INTEREST OF THE AMICI CURIAE

Amici, organizations whose members include state,

county, and municipal governments and _ officials

throughout the United States, have a compelling in-

terest in legal issues that affect state and local gov-

ernments. Their concerns include preserving the au-

thority of States to respond in responsible and ap-

propriate ways to the acute problems posed by a na-

tional shortage of hazardous waste disposal sites. By

accepting hazardous waste generated throughout the

United States, Alabama has shown itself to be a re-

sponsible participant in the interstate market for the

commercial disposal of hazardous waste. Reversal of

the judgment below would prevent Alabama from

sharing, in a constitutionally permissible manner,

the burdens as well as the benefits arising from its

unique national role. Amici accordingly submit this

brief to assist the Court in its resolution of this case.’

STATEMENT

Amici adopt respondents’ statement of the case.

INTRODUCTION AND SUMMARY OF ARGUMENT

Alabama is a responsible actor in the interstate

market for the commercial disposal of hazardous

waste. The EPA has identified seventy-four counties

in thirty-six States that have potential hazardous

waste disposal sites. See J.A. 103-105. The trial

court found that “hazardous waste landfills can be

designed and engineered to operate in practically

every state.” Pet. App. 57a. Nevertheless, most

States are absent from the interstate market for

1 The parties’ letters of consent have been filed with the

Clerk pursuant to Rule 37.3 of the Court.

3

landfill disposal of hazardous wastes. Alabama is one

of only sixteen States that have commercial hazard-

ous waste landfills, and most of the other fifteen

States participate in the market on a much smaller

scale. See Jeffrey D. Smith, Hazardous Waste Land-

fill Facility Information, EI Digest, Mar. 1992, at 26-

27 (Table 1) (hereinafter “EI Digest’).

Petitioner Chemical Waste Management’s facility

at Emelle, Alabama is the largest of the twenty-one

commercial hazardous waste landfills located in these

sixteen States. See Pet. Br. 8; EI Digest at 26-27

(Table 1). The Emelle facility has a total permitted

capacity of 21.4 million cubic yards Emelle’s capac-

ity substantially exceeds the total combined capacity

of ten facilities in ten States, and likewise exceeds

the total combined capacity of six facilities in three

other States. Jd. The capacity at Emelle is more

than double the capacity of a single facility in a

fourteenth State. The permitted landfill capacity for

hazardous wastes in Alabama is matched by only one

State, California, which has three facilities with a

total permitted capacity of 22.5 million cubic yards.

See EI Digest at 26-27 (Table 1).’

These capacity statistics in fact understate the ex-

tent of Alabama’s role in the interstate market. As

of 1990, the United States reported that Emelle is

“the ultimate depository for over one third of the

2 Alabama’s prominent place among the handful of States

that play a major role in this interstate market is likely to

continue. Emelle has a very high percentage of the available

undeveloped acres at the twenty-one existing facilities. Al-

though data are not reported for four facilities, the 1,725

undeveloped acres at Emelle are more than twice the total

of 824.8 undeveloped acres at twelve facilities in eleven States.

See EI Digest at 26-27 (Table 1).

4

waste materials shipped off-site from Superfund

[cleanup] sites.” Pet. Br. 8. The trial court found

that Emelle “received two years ago approximately

17% of all hazardous wastes commercially landfilled

in the United States.” Pet. App. 58a. Emelle is one

of only eight landfills in seven States that are licensed

to dispose of electrical equipment containing poly-

chlorinated biphenyls (PCBs) and other PCB wastes.

Brief for Amici Curiae American Iron and Steel In-

stitute et al. in Support of Petition at 8 & n. 5.

As the respondents demonstrate in their Statement

of the Case, and as the United States recognizes (Br.

at 19), Alabama has well-founded health and safety

concerns arising from the landfill disposal at Emelle

of hazardous wastes that pose serious environmental

and health risks. The large volumes of hazardous

wastes that are landfilled each year at Emelle heighten

the State’s concern about these risks. In 1985, 341,000

tons of hazardous waste were deposited at Emelle.

By 1989 this had increased to 791,000 tons. J.A. 23.

Notwithstanding a 1990 statute establishing an

“additional fee’ for out-of-state hazardous wastes,

Alabama continues to play a responsible role in the

interstate market. The 1990 statute, which CWM

challenges here, imposes “an additional fee . . . of

$72.00 per ton” on “‘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.” Ala. Code

§ 22-30B-2(b). Since the enactment of this statute,

the high percentage of out-of-state hazardous wastes

deposited at Emelle has remained constant." The

5’ The total amount of hazardous waste deposited at Emelle

decreased to 648,000 tons in 1990 and to 290,000 tons in 1991.

5)

trial court found that, prior to the imposition of the

additional fee, “[e]ighty-five to ninety percent of the

tonnage permanently buried at Emelle is from out-

of-state.”” Pet. App. 58a. From July 15, 1990, the

effective date of the statute, through December 1990,

89.25° of the hazardous wastes deposited at Emelle

were from out-of-state sources. For calendar year

1991, 88.66% of the hazardous wastes were from

out-of-state sources. High Court to Consider Extra

Tax on Tainted Waste, Montgomery Advertiser, Mar.

31, 1992, at 5A.

The validity of the additional fee does not turn,

as petitioner and the United States argue, on a sim-

plistic analysis of the statute as discriminating on its

face between out-of-state hazardous waste generators

and in-state hazardous waste generators. Any allo-

cation of the benefits and burdens on in-state and

out-of-state interests must also take into account Ala-

bama’s determination to authorize hazardous waste

landfills. Alabama imposes on its citizens all the

burdens of providing a permanent site for the dis-

posal of hazardous waste that a great majority of

the States do not impose on their citizens. This sub-

EI Digest at 26 (Table 1). This decrease, however, does not

diminish Alabama’s role as a responsible participant in the

interstate hazardous waste disposal market. Even though the

reduction in the volume of hazardous waste deposited at

Emelle may be attributable in part to the additional fee, it is

also attributable to other factors, such as the current recession

and the related decline in generation of hazardous wastes. See

EI Digest at 24. There were, for example, significant reduc-

tions in the volume of deposits at two other CWM commercial

hazardous waste landfills from 1990 to 1991. In that one year

period, volume at a CWM facility in Indiana declined from

200,000 to 100,000 tons, and volume at a CWM facility in

Illinois declined from 240,000 tons to 67,000 tons. 7/d.

6

stantial in-state burden corresponds to the burden

imposed by the additional fee on out-of-state inter-

ests. There is a similar correspondence between in-

state and out-of-state benefits. Although in-state haz-

ardous waste generators are not subject to the ad-

ditional fee, out-of-state interests are accorded the

benefit of avoiding the problems of disposing of the

immense volume of hazardous wastes that are land-

filled at the Emelle facility.

Amici submit that the additional fee is consistent

with the Commerce Clause because Alabama’s provi-

sion for hazardous waste landfill (1) imposes a sub-

stantial in-state burden that corresponds to the burden

of the higher disposal fee imposed on out-of-state

wastes, and (2) confers a substantial out-of-state

benefit that corresponds to the in-state benefit of a

lower disposal fee. The burdens imposed on the citi-

zens of Alabama of providing a permanent site for

the disposal of hazardous wastes justify the corre-

sponding burden imposed on out-of-state interests by

the differential fee. This scheme thus comports with

the Court’s Commerce Clause jurisprudence, which

permits States to regulate the commercial disposal of

hazardous wastes on terms that impose corresponding

burdens on in-state and out-of-state interests.

7

ARGUMENT

THE “ADDITIONAL FEE” IS VALID BECAUSE STATE

LAW IMPOSES A SUBSTANTIAL IN-STATE BURDEN

THAT CORRESPONDS TO THE BURDEN IMPOSED

ON OUT-OF-STATE WASTES, AND CONFERS A SUB-

STANTIAL OUT-OF-STATE BENEFIT THAT COR-

RESPONDS TO THE IN-STATE BENEFIT OF A

LOWER DISPOSAL FEE

A. The Validity Of State Laws Under The Dormant Com-

merce Clause Turns On A Careful Assessment Of The

Burdens And Benefits Allocated To Both In-State And

Out-Of-State Interests

This Court has long recognized that the dormant

Commerce Clause imposes limits on state legislative

power in the interest of promoting a national economic

union. H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S.

525, 537-39 (1949); Willson v. Black Bird Creek

Marsh Co., 27 U.S. (2 Pet.) 245, 252 (1829). In

determining these limits, the Court draws a funda-

mental distinction between state laws that burden

interstate commerce and state laws that discriminate

against interstate commerce. State laws that even-

handedly impose burdens on both in-state and out-

of-state interests are classified as “burdensome.”

State laws are said to be “discriminatory” where

there is little or no burden on in-state interests that

corresponds to any burden imposed on out-of-state

interests. See, e.g., Wyoming v. Oklahoma, 112 S. Ct.

789, 800 & n.12 (1992); Maine v. Taylor, 477 U.S.

131, 138 (1986).*

* This Court has recognized that the traditional deference

accorded to state laws that burden both in-state and out-of-

state interests is not warranted where a disproportionate

burden is imposed on out-of-state interests. Compare Kassel

v. Consolidated Freightways Corp., 450 U.S. 662, 675-76

(1981) (Powell, J., judgment of the Court) and Raymond

8

The distinction between state laws that burden or

discriminate against interstate commerce was origi-

nally stated by Justice (later Chief Justice) Stone.

It rests on an assessment of the operation of state

political processes and in particular on an analysis of

(1) the allocation of burdens between in-state and

out-of-state interests, and (2) the distribution of bene-

fits between in-state and out-of-state interests. See

Southern Pacific Co. v. Arizona, 325 U.S. 761, 767

n.2 (1945); South Carolina Highway Department v.

Barnwell Brothers, 303 U.S. 177, 184 n.2, 187

(1938).

As a general rule, state laws that burden interstate

commerce are valid if they serve legitimate state in-

terests and if the burdens imposed on interstate com-

merce are not “clearly excessive in relation to the

putative local benefits.” Pike v. Bruce Church, Inc.,

397 U.S. 137, 142 (1970). State laws that discrimi-

nate against interstate commerce, however, are sub-

ject to a more demanding level of scrutiny and are

invalid “unless the discrimination is demonstrably

justified by a valid factor unrelated to economic pro-

tectionism.” Wyoming v. Oklahoma, 112 S. Ct. at

800. Moreover, ‘“‘when the state statute amounts to

simple economic protectionism,” this Court has ap-

plied “a ‘virtually per se rule of invalidity.’” Jd.

(quoting Philadelphia v. New Jersey, 437 U.S. 617,

624 (1978)).

Motor Transportation, Inc. v. Rice, 434 U.S. 429, 444 n.18

(1978) (both rejecting traditional presumption of validity

of state highway safety laws that disproportionately bur-

dened out-of-state interests) with Minnesota v. Clover Leaf

Creamery Co., 449 U.S. 456, 472-73 (1981) (deference to

state environmental regulations imposing burdens on both

in-state and out-of-state interests).

9

B. The General Rule That State Laws Imposing Burdens

Exclusively On Out-Of-State Interests Are Invalid Does

Not Apply To The Additional Fee

As a general matter, the distinction between bur-

densome and discriminatory state laws is salutary.

Heightened scrutiny of state laws that discriminate

against interstate commerce is warranted because

such laws frequently threaten the free interstate

market. When this Court has held state laws in-

valid because they were either discriminatory on their

face or in their effect, the laws exclusively burdened

out-of-state interests and reserved all benefits for in-

state interests. In these cases, the States had at-

tempted to promote their parochial interests at the

expense of their sister States and had effectively

opted out of the interstate market.

In Philadelphia v. New Jersey, 437 U.S. 617

(1978), for example, this Court held that a facially

discriminatory New Jersey law prohibiting the im-

portation of most forms of solid waste violated the

Commerce Clause. All of the burdens of the state :aw

fell on out-of-state interests that were completely

barred from access to New Jersey landfills, and no

burdens were imposed on New Jersey citizens. All of

the benefits of conserving scarce landfill space, mini-

mizing pollution problems, and reducing waste dis-

posal costs were reserved for New Jersey citizens, and

no benefits were accorded to out-of-state interests.

The overtly discriminatory Oklahoma statute held in-

valid in Hughes v. Oklahoma, 441 U.S. 332 (1979),

also imposed burdens exclusively on out-of-state in-

terests and reserved benefits exclusively for in-state

interests. The Oklahoma prohibition on exporting

natural minnows imposed all of its burdens on indi-

10

viduals who wished to use them outside of the State

and reserved the benefit for those fishing in Oklahoma.

Although the North Carolina statute held invalid

in Hunt v. Washington State Apple Advertising

Comm’n, 432 U.S. 333 (1977), was discriminatory in

effect and not on its face, this statute, like those in

Philadelphia v. New Jersey and Hughes v. Oklahoma,

also imposed burdens exclusively on out-of-state in-

terests and reserved benefits exclusively for in-state

interests. This Court found that the burdens of com-

pliance with North Carolina’s apple grading stand-

ards fell solely on Washington apple growers. 432

U.S. at 351. Similarly, the benefits of the State’s

apple grading standards flowed exclusively to in-state

apple growers because out-of-state apples would be

down-graded to the standards satisfied by locally-

grown apples. /d. at 351-52.

The additional fee is easily distinguishable from

the discriminatory statutes held invalid in these and

other cases. In sharp contrast to the state laws in

Philadelphia v. New Jersey, Hughes v. Oklahoma,

and Hunt v. Washington State Apple Advertising

Comm’n that imposed burdens exclusively on out-of-

state interests and reserved benefits exclusively for in-

state interests, Alabama’s provisions for the commer-

cial disposal of hazardous waste impose burdens on

both in-state and out-of-state interests and also confer

a substantial benefit on out-of-state interests.®

® As discussed above, discriminatory state laws are subject

to heightened scrutiny and usually invalidated. This Court

has recognized, however, that state laws imposing burdens

exclusively on out-of-state interests may be valid. See New

Eneray Co. v. Limbach, 486 U.S. 269, 278 (1988); Maine v.

Taylor, 477 U.S. at 148 n.19; Lewis v. BT Investment Man-

agers, Inc., 447 U.S. 26, 43 (1980). See also Mintz v. Baldwin,

1]

289 U.S. 346 (1933). Maine v. Taylor, for example, upheld

an overtly discriminatory Maine statute prohibiting the im-

portation of live baitfish.

The quarantine cases likewise confirm the States’ power

to impose burdens exclusively on out-of-state interests to

prevent exacerbation of existing in-state problems even when

the State has not imposed any corresponding burden on in-

state interests to solve these problems. Although the United

States broadly asserts that the “quarantine statutes .. . are

in fact evenhanded because all traffic . . . is prohibited,” it

concedes that some of the quarantine laws were discriminatory

because the “cases do not explicitly search for an in-state

equivalent to the discriminatory statutes.” United States Br.

at 24 & n.30. Of course, in the absence of an in-state burden

equivalent to the out-of-state burden imposed by the quaran-

tine’s prohibition against importation of out-of-state items,

the quarantine laws were in fact discriminatory.

To the extent that the quarantine cases noted in Philadel-

phia v. New Jersey, 437 U.S. at 628-29, involved statutes that

were discriminatory because they imposed burdens exclusively

on out-of-state interests, this Court’s statement that the quar-

antine lav» “simply prevented traffic in noxious articles, what-

ever their origin” (id. at 629) appears to be an overstatement.

Many state laws, like the New York statute at issue in Mintz

v. Baldwin, 289 U.S. 346 (1933), did not impose the same

restrictions on in-state and out-of-state traffic. See, e.g., Mintz

v. Baldwin, 2 F. Supp. 700, 715 (N.D.N.Y. 1933) (Cooper, J.,

dissenting) (discussing more burdensome certification require-

ments imposed on out-of-state cattle than in-state cattle),

aff'd, 289 U.S. 346 (1933).

The analogy between discriminatory state laws prohibiting

the importation of diseased fish and diseased cattle and the

additional fee imposed on out-of-state hazardous wastes is

carefully drawn in respondents’ brief and is not repeated here.

12

C. Alabama’s Regulation Of Hazardous Waste Does Not

Burden Out-Of-State Interests Exclusively, And The

Additional Fee Is Valid Because State Law Imposes

Corresponding Burdens On In-State And Out-Of-State

Interests

1. Petitioner's Analysis of the Additional Fee Is Super-

ficial and Incomplete

Petitioner and the United States focus exclusively

on the allocation of burdens between in-state and out-

of-state waste generators. With respect to hazardous

waste generators, the statute is admittedly discrim-

inatory on its face: it imposes a $72 additional fee

for imported hazardous wastes. Although petitioner

and the United States would have this Court decide

the case solely on the basis of the additional fee and

the “discriminatory” label, the actual distribution of

benefits and burdens is more complex. Catchwords

and labels are not a substitute for analysis of the

actual distribution of benefits and burdens between

in-state and out-of-state interests made by Alabama’s

provisions for the commercial disposal of hazardous

wastes. See Henneford v. Silas Mason Co., 300 U.S.

577, 586 (1937). Looking beyond the narrow impact

of the additional fee on waste generators, it is appar-

ent that state law does not impose burdens exclusively

on out-of-state interests. The State’s provisions for

commercial hazardous waste landfills are not discrim-

inatory in fact because (1) they impose a substantial

in-state burden that corresponds to the burden of

the higher disposal fee imposed on out-of-state wastes,

and (2) they confer a substantial out-of-state benefit

that corresponds to the in-state benefit of a lower dis-

posal fee.

Petitioner and the United States, however, view

this case as raising questions about Alabama’s power

13

to favor in-state hazardous waste generators against

out-of-state hazardous waste generators, to insulate

in-state businesses from out-of-state competition, or

to reserve the Emelle facility for the benefit of its

own citizens. Viewed in this superficial fashion, the

additional fee is “discriminatory.” This analysis,

however, is fundamentally flawed.

There is simply no evidence in the record to support

the conclusion that the differential fee was enacted

either at the behest of or for the benefit of Alabama

hazardous waste generators. Cf. Hunt v. Washing-

ton State Apple Advertising Comm’n, 432 U.S. at 352

(overwhelming evidence that restrictions on imported

apples were to serve the interests of in-state apple

growers). Similarly, given the vast capacity of the

Emelle facility,’ there is no reason to believe that the

State was acting to reserve limited hazardous waste

disposal capacity for in-state hazardous waste gen-

erators. Petitioner’s focus on the effect of the addi-

tional fee on waste generators is incomplete because

it ignores the fact that Alabama has imposed other

significant burdens on all of its citizens by permitting

‘If this Court were to adopt Professor Regan’s powerful

argument that the dormant or negative side of the Commerce

Clause should prohibit only state laws whose purpose is “to

advantage local actors at the expense of their foreign com-

petitors,” the differential fee would clearly be valid. Donald

H. Regan, The Supreme Court and State Protectionism: Mak-

ing Sense of the Dormant Commerce Clause, 84 Mich. L. Rev.

1091, 1095 (1986) (emphasis in original). There is no evi-

dence that the purpose of the differential fee is to confer any

advantage on in-state hazardous waste generators at the ex-

pense of their foreign competitors, out-of-state hazardous

waste generators.

* The trial court found that “there is capacity at Emelle

for another 100 years of operation.” Pet. App. 58a.

14

the operation of a commercial hazardous waste dis-

posal facility within its borders, and that these bur-

dens correspond to the burden of the additional fee

imposed on out-of-state generators.

2. Alabama’s Authorization of Commercial Hazardous

Waste Landfills Imposes Substantial In-State Bur-

dens

By permitting the operation of a commercial haz-

ardous waste landfill, Alabama imposes substantial

health and safety risks on its citizens.* Given the

trial court’s finding that “hazardous waste generated

in Alabama is just as dangerous as such waste gen-

erated in other states” (Pet. App. 86a), amici do

not dispute the limited propositions, advanced by peti-

tioner, that (1) the monetary costs of cleaning up

problems created by the disposal of hazardous waste

should be based on the volume of wastes deposited and

that (2) a nondiscriminatory fee ensures that in-state

and out-of-state waste generators will pay a propor-

tional share of clean-up costs based on the volume of

hazardous wastes deposited at Emelle. See Pet. Br.

at 19, 29 n. 19.

These limited propositions, which are the linchpin

of petitioner’s argument, do not address Alabama’s

more fundamental concerns. The Alabama legislature

correctly recognized that the disposal of hazardous

wastes imposes on Alabama citizens the burdens of

® As set out in respondents’ Statement of the Case, the

record demonstrates that the disposal of hazardous wastes at

the Emelle landfill poses serious threats to both human health

and the environment and that there are significant questions

whether waste disposal technology and federal standards pro-

vide adequate safeguards against either the short-term or the

long-term risks.

15

potential environmental and health problems that

simply cannot be “cleaned up” or “cured” by remedial

expenditures. Alabama has thus imposed on its

citizens substantial burdens that the majority of

the States have not.’ The risks that the Emelle

site and the surrounding area may become perma-

nently polluted or that the health of Alabama citizens

may be impaired in ways or to an extent that no

individual would accept voluntarily in exchange for

money damages are borne exclusively by the citizens

of Alabama. Even assuming that the federal regula-

tory scheme provides the best possible current guar-

antee of health and safety, the risk that the hazardous

waste landfill at Emelle may prove to be another

Times Beach or Love Canal is borne by the citizens

of Alabama.” The State may properly take into ac-

count the wide range of health and environmental

burdens that are now and may ultimately be imposed

on its citizens. See Maine v. Taylor, 477 U.S. at 148

(States have “a legitimate interest in guarding

® When it imposed the additional fee, the legislature ex-

pressly found that:

As the site for the ultimate burial of hazardous wastes

and substances, the state incurs a permanent risk to the

health of its people and the maintenance of its natural

resources that is avoided by other states which ship their

wastes to Alabama for disposal.

Ala. Act No. 90-326 § 1(d); Ala. Code § 22-30B-1(d) (Pet.

App. at 108a).

1° If, contrary to the record (see note 8 supra), one assumes

that hazardous waste disposal technology is “fail safe,” it is

nonetheless the case that Alabama already has the burden of

a negative reputation as the location of one of the nation’s

principal hazardous waste disposal facilities. This burden,

which is analogous to the diminution of value of property

located next to a noxious use, is substantial.

16

against imperfectly understood environmental risks,

despite the possibility that they may ultimately prove

to be negligible’).

The in-state burden of potential environmental and

health problems that cannot be cured by remedial

expenditures, while not easily measured in dollars like

the out-of-state burden of the additional fee, is none-

theless substantial.'' This burden on the citizens of

Alabama exists regardless of the size of the existing

pool of funds that might be used to alleviate health

and environmental problems caused by a major dis-

aster and regardless whether there is recourse to haz-

ardous waste generators for additional funds. Thus,

suggestions that there may be adequate remedial

funds and that federal law ensures equal recourse to

in-state and out-of-state hazardous waste generators

for additional funds (Pet. Br. at 5, 34-35) do not

address the permanent, persistent health and environ-

mental problems that will remain long after the reme-

dial actions are completed.

If in-state and out-of-state hazardous waste gen-

erators paid the same nondiscriminatory disposal fee,

then the burdens of funding efforts to remedy envi-

ronmental and health problems would be directly

11 As a matter of common sense, the “NIMBY” (not-in-my-

backyard) syndrome confirms the substantial in-state burden

of disposing of out-of-state hazardous wastes. Although the

need for safe disposal of hazardous wastes is widely acknow]l-

edged, most individuals would prefer that commercial haz-

ardous waste landfills like Emelle be located as far away as

possible. The substantial in-state burden of a hazardous waste

landfill is demonstrated by the trial couri’s finding that since

the effective date of RCRA in 1980, “only one additional haz-

ardous waste landfill has been permitted.” Pet. App. at 57a.

17

proportional to the volume of hazardous wastes gen-

eratod by in-state and out-of-state sources. Although

both in-state and out-of-state hazardous waste gen-

erators (and indirectly in-state and out-of-state citi-

zens) would bear these remedial burdens in propor-

tion to their contribution to the problem, other bur-

dens would not be allocated proportionately between

in-state and out-of-state sources. Alabama citizens

would bear all of the substantial burdens of environ-

mental and health problems that cannot be “cleaned

up” or “cured” by remedial expenditures. The addi-

tional fee is compensation for locating a potential

Times Beach or Love Cana!—an analogy that fully

accords with public perceptions—in Alabama as op-

posed to locating the facility in another State.”

3. Corresponding In-State and Out-Of-State Burdens

and Benefits

The correspondence between the out-of-state burden

($72 additional fee) and the in-state burden (envi-

ronmental and health problems that cannot be reme-

died by subsequent expenditures)" is demonstrated in

2 The purpose of the additional fee is not to create a fund

for remedying environmental and health problems that may

arise at commercial hazardous waste landfills. The proceeds

of the additional fee are not paid into any special trust fund

and are paid instead into the State’s general treasury. Ala.

Code § 22-30B-3 (Pet. App. 107a-108a). Since the proceeds

of the additional fee are not devoted to the costs of any clean-

up, there is no merit to the argument (Pet. Br. at 19) that

it imposes a disproportionate share of the costs of cleaning up

Emelle on out-of-state hazardous waste generators. The addi-

tional fee is better understood as compensation for the health

and environmental burdens that will be borne in perpetuity

by the citizenry of Alabama.

'S In comparing in-state and out-of-state burdens, this Court

has not imposed any requirement that the burdens must be

18

part by the fact that the establishment of the addi-

tional fee in 1990 did not change the high percentage

of out-of-state hazardous wastes deposited at Emelle.

See discussion supra at 4-5. The out-of-state burdens

and the in-state burdens are logical trade-offs between

exporters and importers of hazardous wastes."

Just as Alabama law imposes corresponding out-

of-state and in-state burdens, it also accords substan-

tial out-of-state benefits corresponding to the in-state

benefit of the additional fee. The thirty-four States

that do not have commercial hazardous waste land-

fills are freed from the problems of disposing of the

hazardous wastes that are landfilled in Alabama at

the Emelle facility. These thirty-four States, as well

as many of the fifteen States that have only limited

exactly the same kind or imposed on identical out-of-state and

in-state actors. See Minnesota v. Clover Leaf Creamery Co.,

449 U.S. at 472-73 (balancing benefits conferred on in-state

pulpwood producers and burdens imposed on in-state dairies

and milk retailers against burdens imposed on out-of-state

producers of plastic resins). Such a requirement is unneces-

sary because the core concern is whether there is an in-state

burden adequate to ensure that the state political process

has balanced competing interests fairly. Here, the substan-

tial in-state burden is adequate to ensure that Alabama fairly

balanced the interest in providing landfills for hazardous

wastes against the interest in avoiding substantial health and

environmental problems.

'* The general correspondence of these burdens is confirmed

by the recommendation of the Nationa! Governors’ Association

that States be permitted to charge out-of-state waste gener-

ators a multiple of the base fee imposed on in-state waste

generators. National Governors’ Association, Policy Positions

1991-92 186 (§ D-17.8 Hazardous Waste Management: Inter-

state Shipments of Hazardous Waste) (hereinafter “Policy

Positions’),

19

commercial hazardous waste disposal capacities, shift

to Alabama and its citizens the risks that their terri-

tory may become permanently polluted and that the

health of their citizens may be impaired in ways or

to an extent no individual would accept in exchange

for money damages.

4. The Additional Fee Is “Demonstrably Justified by

a Factor Unrelated to Economic Protectionism”

In imposing the additional fee on out-of-state haz-

ardous wastes, Alabama appropriately balanced the

burdens imposed on in-state and out-of-state inter-

ests." Although Alabama’s provisions for commer-

cial hazardous waste disposal are not discriminatory

in fact because they impose burdens on both in-state

and out-of-state interests, this Court traditionally

subjects statutes that are overtly discriminatory to

strict scrutiny. See, e.g., Maine v. Taylor, 477 U.S.

at 138. As stated earlier this Term in Wyoming v.

Oklahoma, state laws that discriminate against inter-

state commerce are invalid “unless the discrimination

% The suggestion of amici that the state political process

did not fairly balance these competing interests, see Br. Am.

Cur. Hazardous Waste Treatment Council at 8, is mistaken.

Although it is true that “a vote against the importation of

out-of-state waste is an exceptionally easy vote for a state

lawmaker to cast [because] there [is] no significant con-

stituency within the state to protect the ‘out-of-staters,’ ” id.

(emphasis in original), this statement does not describe the

vote actually made by Alabama lawmakers. Alabama law-

makers cast votes in favor of importation of out-of-state

wastes, and a vote in favor of permitting hazardous waste

disposal is as difficult as the hypothetical vote suggested by

amici is easy. By voting in favor of permitting the disposal

of imported hazardous waste subject to the additional fee,

Alabama legislators appropriately balanced the burdens im-

posed on out-of-state interests against Alabama’s burden of

environmental and health problems.

20

is demonstrably justified by a valid factor unrelated

to economic protectionism.” 112 S. Ct. at 800; see

New Energy Co. v. Limbach, 486 U.S. at 274. Thus,

the “ ‘negative’ aspect of the Commerce Clause pro-

hibits economic protectionism—that is, regulatory

measures designed to benefit in-state economic inter-

ests by burdening out-of-state competitors.” 112 S.

Ct. at 800 (quoting New Energy Co. v. Limbach, 486

at 273-74).

The Alabama additional fee provision satisfies this

demanding standard.” As discussed above, it is com-

pensation for all the incurable environmental and

health problems that will exist in Alabama long after

the site has been “cleaned up” and injuries to health

have been “‘cured.”

The additional fee provision does not compromise

the fundamental prohibition of the Commerce Clause

against economic protectionism. The record does not

support any inference that the Alabama additional

fee provision is “designed” to aid in-state hazardous

waste generators in their competition with out-of-

16 In cases decided before Wyoming v. Oklahoma and New

Energy Co. v. Limbach, the Court formulated the standard in

somewhat different terms and imposed a burden on the States

to demonstrate that a discriminatory statute “ ‘serves a legiti-

mate local purpose’” and that “this purpose could not be

served as well by available nondiscriminatory means.” Maine

v. Taylor, 477 U.S. at 138 (quoting Hughes v. Oklahoma,

441 U.S. at 336). The additional fee provision also satisfies

this standard. It serves the legitimate local purpose of com-

pensating Alabama for assuming the burdens of substantial

incurable environmental and health problems. There are no

nondiscriminatory alternatives to imposing a differential fee

on out-of-state waste generators because a nondiscriminatory

disposal fee would force Alabama citizens alone to bear all of

these incurable problems.

21

state hazardous waste generators by imposing dif-

ferential fees or that the statute is “designed” to

conserve the almost unlimited, 100-year capacity of

the Ernelle facility for in-state interests.

A determination that the Alabama additional fee

provision is a valid exercise of state legislative power

under the Commerce Clause does not require any de-

parture from this Court’s practice of “routinely”

striking down discriminatory state laws except in

unique circumstances. New Energy Co. v. Limbach,

486 U.S. at 274. In most cases, a state law which is

discriminatory on its face is also discriminatory in

fact because it imposes burdens exclusively on out-of-

state interests and does not impose any correspond-

ing burdens on in-state interests. Although the ad-

ditional fee provision is discriminatory on its face,

it is a rare example of a facially discriminatory pro-

vision that is not discriminatory in fact because state

law imposes corresponding burdens on in-state and

out-of-state interests. Thus, for example, recogni-

tion of the validity of the additional fee provision

is completely consistent with this Court’s determina-

tion in Philadelphia v. New Jersey, 437 U.S. 617

(1978) that a state law prohibiting the importation

of garbage for disposal in the State’s sanitary land-

fills violated the Commerce Clause. In that case, all

of the burdens of the state law fell on out-of-state

interests that were completely barred from access to

the State’s landfills, and no burdens were imposed on

in-state interests. Jd. at 628.

D. The Additional Fee Is Consistent With The Principle

That “Our Economic Unit Is The Nation”

The suggestions (Pet. Br. at 38; United States Br.

at 14-15) that a judgment sustaining the additional

fee would promote “Balkanization” of the economy

22

and impair the interstate market for the commercial

disposal of hazardous wastes are at war with reality.

Congress and the National Governors’ Association

have both found that differential fees for in-state and

out-of-state wastes are consistent with the “basic

principle that ‘our economic unit is the Nation.’”

Hughes v. Oklahoma, 441 U.S. at 339 (quoting H. P.

Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537

(1949) ). Congress, in a closely analogous context,

has determined that state laws imposing higher fees

for disposal of out-of-state wastes than for in-state

wastes are consistent with the maintenance of a

national market. Under one set of the provisions of

the Low Level Radioactive Waste Policy Amendments

Act of 1985, 42 U.S.C. §$§ 2021b-2021i, States may

impose higher fees on imported low level radioactive

wastes.'? The National Governors’ Association has

also concluded that differential fees are consistent with

interstate cooperation in the disposal of hazardous

wastes."*

Even more significantly, the EPA has determined

that South Carolina regulations imposing higher fees

for the disposal of out-of-state hazardous wastes than

for in-state hazardous wastes are valid under the

Resource Conservation and Recovery Act of 1976, 42

U.S.C. §§ 6901 et seqg., and the agency’s implementing

regulations, 50 Fed. Reg. 46437 (1985). See Hazard-

ous Waste Treatment Council v. South Carolina, 945

F.2d 781, 785 n.2 (4th Cir. 1991). The EPA ex-

17 New York has questioned whether other provisions of

this Act are proper exercises of Congress’s power under the

Commerce Clause. See generally Brief of Petitioner New York

State in New York v. United States (Nos. 91-543, 91-558,

91-563).

18 See note 14, supra.

23

pressly found that differential fees imposed on in-state

and out-of-state hazardous wastes are “not an unrea-

sonable impediment or restriction on the flow of waste

into the State.” 50 Fed. Reg. 46440 (1985). A judg-

ment that the Alabama additional fee violates the

Commerce Clause would create a significant disparity

between South Carolina’s and Alabama’s hazardous

waste disposal programs. If this Court has any doubts

about the validity of the additional fee under the

Commerce Clause, resolution of the questions (1)

whether Congress has authorized the EPA to approve

differential fees, and (2) whether the Alabama addi-

tional fee is consistent with RCRA and with EPA’s

implementing regulations, would avoid both this

anomaly and a potentially unnecessary decision of the

significant constitutional issue raised in this case.’

The actual effects of Alabama’s additional fee are

consistent with EPA’s determination that South Caro-

lina’s differential fees are not “an unreasonable im-

pediment or restriction on the flow of waste into the

State.” Jd. The imposition of the additional fee in

1990 has not had any significant effect on the high

percentage of out-of-state hazardous wastes deposited

at the Emelle facility, and it has not impaired the in-

terstate market for the disposal of hazardous wastes.

Moreover, a judgment sustaining the additional fee

'* The state courts below did not address EPA’s approval

of South Carolina’s differential fees. See Pet. App. at 1a-

100a (opinions of the Alabama Supreme Court and the Ala-

bama Circuit Court). The questions are complex. See Haz-

ardous Waste Treatment Council v. South Carolina, 945 F.2d

at 789-95. In these circumstances, if this Court determines

that these questions should be resolved, it would be appro-

priate to vacate the judgment below and remand for the pur-

pose of making an initial determination.

24

and recognizing the State’s power to match in-state

and out-of-state burdens and benefits by assessing an

additional fee for the disposal of out-of-state hazard-

ous waste would provide an incentive for the States to

maintain existing facilities and to open new facilities.

Conversely, a judgment invalidating the additional

fee may discourage the States that do not have com-

mercial hazardous waste landfills from entering the

market and may encourage States that permit the

operation of such facilities to withdraw from the in-

terstate market.” Recognition of the States’ power to

balance burdens and benefits by assessing differential

fees is particularly important because the federal

regulatory program has failed to provide for addi-

tional commercial hazardous waste landfills.”

2° Given the position of the National Governors’ Associa-

tion that differential fees “compensate importing states for

the significant costs, risks, and other burdens they bear as

hosts to hazardous waste management facilities used by other

states,” Policy Positions at 186, invalidation of the addi-

tional fee may well have more dire consequences for the inter-

state market. States could, of course, completely prohibit the

disposal of both in-state and out-of-state hazardous wastes in

landfills. See Philadelphia v. New Jersey, 437 U.S. at 626; see

also Ray Vaughan, Toxic Destiny: Changing Alabama’s Fu-

ture as a Hazardous Waste Dumping Ground, 43 Ala. L. Rev.

75 (1991) (suggesting that if States condemn privately-owned

commercial hazardous waste landfills and undertake govern-

ment operation, they will be able to prohibit completely the

importation of out-of-state hazardous wastes).

21 This failure has had the effect of saddling States like

Alabama, that had large commercial hazardous waste landfills

in operation before the enactment of RCRA, with the brunt

of the nation’s hazardous waste disposal problems. See Brief

of South Carolina, et al. as Amici Curiae in Support of Re-

spondents.

25

CONCLUSION

The judgment of the Supreme Court of Alabama

should be affirmed.

Respectfully submitted,

Of Counsel: RICHARD RUDA *

D. BRUCE LA PIERRE Chief Counsel

WASHINGTON UNIVERSITY MICHAEL G. DZIALo

SCHOOL oF LAW STATE AND LOCAL LEGAL

One Brookings Drive CENTER

St. Louis, MO 63130 444 North Capitol St., N.W.

(314) 985-6477 Suite 345 .

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

April 9, 1992 Amici Curiae