# 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 —-~

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 )
\

'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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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
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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

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i ee I raericienescrccpetescnceseeaccsnenteenessoensee 15
IIE cc cscnvenasiarsccensescenmsnsvincessssinoes 4
FO TE 17

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0185%3A22. Public record. Not legal advice.