 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

          Syllabus

CHEMICAL WASTE MANAGEMENT, INC. v. HUNT,
      GOVERNOR OF ALABAMA, et al.
certiorari to the supreme court of alabama
No. 91-471.   Argued April 21, 1991"Decided June 1, 1992

Petitioner Chemical Waste Management, Inc., operates a commercial
hazardous waste land disposal facility in Emelle, Alabama, that
receives both in-state and out-of-state wastes.  An Alabama Act
imposes, inter alia, a fee on hazardous wastes disposed of at in-state
commercial facilities, and an additional fee on hazardous wastes
generated outside, but disposed of inside, the State.  Petitioner filed
suit in state court, requesting declaratory relief against respondent
state officials and seeking to enjoin the Act's enforcement.  The Trial
Court declared, among other things, that the additional fee violated
the Commerce Clause, finding that the only basis for the fee is the
waste's origin.  The State Supreme Court reversed, holding that the
fee advanced legitimate local purposes that could not be adequately
served by reasonable nondiscriminatory alternatives.
Held:
1.Alabama's differential treatment of out-of-state waste violates
the Commerce Clause.  Pp.4-13.
(a)No State may attempt to isolate itself from a problem com-
mon to the several States by raising barriers to the free flow of
interstate commerce.  Philadelphia v. New Jersey, 437 U.S. 617;
Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural
Resources, post, p. ___.  The State Act's additional fee facially dis-
criminates against hazardous waste generated outside Alabama, and
the Act has plainly discouraged the full operation of petitioner's
facility.  Such a burdensome tax imposed on interstate commerce
alone is generally forbidden and is typically struck down without
further inquiry.  However, here the State argues that the additional
fee serves legitimate local purposes.  Pp.4-7.
(b)Alabama has not met its burden of showing the unavailability
of nondiscriminatory alternatives adequate to preserve the local
interests at stake.  See Hunt v. Washington Apple Advertising
Comm'n, 432 U.S. 333, 353.  Alabama's concern about the volume
of waste entering the Emelle facility could be alleviated by less
discriminatory means"such as applying an additional fee on all
hazardous waste disposed of within Alabama, a per-mile tax on all
vehicles transporting such waste across state roads, or an evenhand-
ed cap on the total tonnage landfilled at Emelle"which would curtail
volume from all sources.  Additionally, any concern touching on
environmental conservation and Alabama citizens' health and safety
does not vary with the waste's point of origin, and the State has the
power to monitor and regulate more closely the transportation and
disposal of all hazardous waste within its borders.  Even possible
future financial and environmental risks to be borne by Alabama do
not vary with the waste's State of origin in a way allowing foreign,
but not local, waste to be burdened.  Pp.7-11.
(c)This Court's decisions regarding quarantine laws do not
counsel a different conclusion.  The additional fee may not legitimate-
ly be deemed a quarantine law because Alabama permits both the
generation and landfilling of hazardous waste within its borders and
the importation of additional hazardous waste.  Moreover, the
quarantine laws upheld by this Court ``did not discriminate against
interstate commerce as such, but simply prevented traffic in noxious
articles, whatever their origin.''  Philadelphia v. New Jersey, supra,
at 629.  This Court's decision in Maine v. Taylor, 477 U.S. 131"up-
holding a state ban on the importation of baitfish after Maine showed
that such fish were subject to parasites foreign to in-state baitfish
and that there were no less discriminatory means of protecting its
natural resources"likewise offers no respite to Alabama, since here
the hazardous waste is the same regardless of its point of origin and
adequate means other than overt discrimination meet Alabama's
concerns.  Pp.11-13.
2.On remand the Alabama Supreme Court must consider the
appropriate relief to petitioner.  See, e. g., McKesson Corp. v. Florida
Division of Alcoholic Beverages & Tobacco, 496 U.S. 18, 31.   P.13.
584 So.2d 1367, reversed and remanded.

White, J., delivered the opinion of the Court, in which Blackmun,
Stevens, O'Connor, Scalia, Kennedy, Souter, and Thomas, JJ.,
joined.  Rehnquist, C. J., filed a dissenting opinion.




  NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.

            SUPREME COURT OF THE UNITED STATES
                       No. 91-471
 
         CHEMICAL WASTE MANAGEMENT, INC., PETIT-
                  IONER v. GUY HUNT, GOVERNOR OF
                          ALABAMA et al.
           on writ of certiorari to the supreme court of
                              alabama
                          [June 1, 1992]

       Justice White delivered the opinion of the Court.
       Alabama imposes a hazardous waste disposal fee on
hazardous wastes generated outside the State and disposed
of at a commercial facility in Alabama.  The fee does not
apply to such waste having a source in Alabama.  The
Alabama Supreme Court held that this differential treat-
ment does not violate the Commerce Clause.  We reverse.
                                 I
       Petitioner, Chemical Waste Management, Inc., a Dela-
ware corporation with its principal place of business in Oak
Brook, Illinois, owns and operates one of the Nation's oldest
commercial hazardous waste land disposal facilities, located
in Emelle, Alabama.  Opened in 1977 and acquired by
petitioner in 1978, the Emelle facility is a hazardous waste
treatment, storage, and disposal facility operating pursuant
to permits issued by the Environmental Protection Agency
(EPA) under the Resource Conservation and Recovery Act
of 1976 (RCRA), 90 Stat. 2795, as amended, 42 U. S. C.
6901 et seq., and the Toxic Substances Control Act, 90
Stat. 2003, as amended, 15 U. S. C. 2601 et seq. (1988 ed.
and Supp. II), and by the State of Alabama under Ala. Code
22-30-12(i) (1990).  Alabama is 1 of only 16 States that
have commercial hazardous waste landfills, and the Emelle
facility is the largest of the 21 landfills of this kind located
in these 16 States.  Brief for Nat. Governors' Assn. et al. as
Amici Curiae 3, citing E. Smith, EI Digest 26-27 (Mar.
1992).
       The parties do not dispute that the wastes and substanc-
es being landfilled at the Emelle facility  include substances
that are inherently dangerous to human health and safety
and to the environment.  Such waste consists of ignitable,
corrosive, toxic and reactive wastes which contain poisonous
and cancer causing chemicals and which can cause birth
defects, genetic damage, blindness, crippling and death.
584 So.2d 1367, 1373 (1991).  Increasing amounts of out-of-
state hazardous wastes are shipped to the Emelle facility
for permanent storage each year.  From 1985 through 1989,
the tonnage of hazardous waste received per year has more
than doubled, increasing from 341,000 tons in 1985 to
788,000 tons by 1989.  Of this, up to 90% of the tonnage
permanently buried each year is shipped in from other
States.
       Against this backdrop Alabama enacted Act No. 90-326
(the Act).  Ala. Code 22-30B-1 to 22-30B-18 (1990 and
Supp. 1991).  Among other provisions, the Act includes a
 cap that generally limits the amount of hazardous wastes
or substances that may be disposed of in any 1-year
period, and the amount of hazardous waste disposed of
during the first year under the Act's new fees becomes the
permanent ceiling in subsequent years.  Ala. Code
22-30B-2.3 (1990).  The cap applies to commercial
facilities that dispose of over 100,000 tons of hazardous
wastes or substances per year, but only the Emelle facility,
as the only commercial facility operating within Alabama,
meets this description.  The Act also imposes a  base fee of
$25.60 per ton on all hazardous wastes and substances
disposed of at commercial facilities, to be paid by the
operator of the facility.  Ala. Code 22-30B-2(a) (Supp.
1991).  Finally, the Act imposes the  additional fee at issue
here, which states in full:
            For waste and substances which are generated
outside of Alabama and disposed of at a commercial
site for the disposal of hazardous waste or hazardous
substances in Alabama, an additional fee shall be
levied at the rate of $72.00 per ton.  22-30B-2(b).
    Petitioner filed suit in state court requesting declaratory
relief against the respondents and seeking to enjoin
enforcement of the Act.  In addition to state law claims,
petitioner contended that the Act violated the Commerce,
Due Process, and Equal Protection Clauses of the United
States Constitution, and was preempted by various federal
statutes.  The Trial Court declared the base fee and the cap
provisions of the Act to be valid and constitutional; but,
finding the only basis for the additional fee to be the origin
of the waste, the Trial Court declared it to be in violation
of the Commerce Clause.  App. to Pet. for Cert. 83a-88a.
Both sides appealed.  The Alabama Supreme Court affirmed
the rulings concerning the base fee and cap provisions but
reversed the decision regarding the additional fee.  The
court held that the fee at issue advanced legitimate local
purposes that could not be adequately served by reasonable
nondiscriminatory alternatives and was therefore valid
under the Commerce Clause.  584 So.2d, at 1390.
       Chemical Waste Management, Inc., petitioned for writ of
certiorari, challenging all aspects of the Act.  Because of the
importance of the federal question and the likelihood that
it had been decided in a way conflicting with applicable
decisions of this Court, Supreme Court Rule 10.1(c), we
granted certiorari limited to petitioner's Commerce Clause
challenge to the additional fee.  502 U. S. " (1992).  We
now reverse.
                                II
       No State may attempt to isolate itself from a problem
common to the several States by raising barriers to the free
flow of interstate trade.  Today, in Fort Gratiot Sanitary
Landfill, Inc. v. Michigan Dept. of Natural Resources, post,
p. ___, we have also considered a Commerce Clause chal-
lenge to a Michigan law prohibiting private landfill opera-
tors from accepting solid waste originating outside the
county in which their facilities operate.  In striking down
that law, we adhered to our decision in Philadelphia v. New
Jersey, 437 U. S. 617 (1978), where we found New Jersey's
prohibition of solid waste from outside that State to amount
to economic protectionism barred by the Commerce Clause:
 `[T]he evil of protectionism can reside in legislative
means as well as legislative ends.  Thus, it does not
matter whether the ultimate aim of ch. 363 is to reduce
the waste disposal costs of New Jersey residents or to
save remaining open lands from pollution, for we
assume New Jersey has every right to protect its
residents' pocketbooks as well as their environment.
And it may be assumed as well that New Jersey may
pursue those ends by slowing the flow of all waste into
the State's remaining landfills, even though interstate
commerce may incidentally be affected.  But whatever
New Jersey's ultimate purpose, it may not be accompa-
nied by discriminating against articles of commerce
coming from outside the State unless there is some
reason, apart from their origin, to treat them different-
ly.  Both on its face and in its plain effect, ch. 363
violates this principle of nondiscrimination.

         `The Court has consistently found parochial legisla-
tion of this kind to be constitutionally invalid, whether
the ultimate aim of the legislation was to assure a
steady supply of milk by erecting barriers to allegedly
ruinous outside competition, Baldwin v. G.A.F. Seelig,
Inc., 294 U. S. [511,] 522-524 [(1935)]; or to create jobs
by keeping industry within the State, Foster-Fountain
Packing Co. v. Haydel, 278 U. S. 1, 10 [(1928)]; John-
son v. Haydel, 278 U. S. 16 [(1928)]; Toomer v. Witsell,
334 U. S. [385,] 403-404 [(1948)]; or to preserve the
State's financial resources from depletion by fencing
out indigent immigrants, Edwards v. California, 314
U. S. 160, 173-174 [(1941)].'  Fort Gratiot Sanitary
Landfill, post, at " (quoting Philadelphia v. New
Jersey, supra, at 626-627).

To this list may be added cases striking down a tax discrim-
inating against interstate commerce, even where such tax
was designed to encourage the use of ethanol and thereby
reduce harmful exhaust emissions, New Energy Co. of Ind.
v. Limbach, 486 U. S. 269, 279 (1988), or to support
inspection of foreign cement to ensure structural integrity,
Hale v. Bimco Trading, Inc., 306 U. S. 375, 379-380 (1939).
For in all of these cases,  a presumably legitimate goal was
sought to be achieved by the illegitimate means of isolating
the State from the national economy.  Philadelphia v. New
Jersey, supra, at 627.
       The Act's additional fee facially discriminates against
hazardous waste generated in States other than Alabama,
and the Act overall has plainly discouraged the full opera-
tion of petitioner's Emelle facility.  Such burdensome taxes
imposed on interstate commerce alone are generally
forbidden:   [A] State may not tax a transaction or incident
more heavily when it crosses state lines than when it occurs
entirely within the State.  Armco Inc. v. Hardesty, 467
U. S. 638, 642 (1984); see also Walling v. Michigan, 116
U. S. 446, 455 (1886); Guy v. Baltimore, 100 U. S. 434, 439
(1880).  Once a state tax is found to discriminate against
out-of-state commerce, it is typically struck down without
further inquiry.  See, e.g., Westinghouse Electric Corp. v.
Tully, 466 U. S. 388, 406-407 (1984); Maryland v. Louisi-
ana, 451 U. S. 725, 759-760 (1981); Boston Stock Exchange
v. State Tax Comm'n, 429 U. S. 318, 336-337 (1977).
       The State, however, argues that the additional fee
imposed on out-of-state hazardous waste serves legitimate
local purposes related to its citizens' health and safety.
Because the additional fee discriminates both on its face
and in practical effect, the burden falls on the State  to
justify it both in terms of the local benefits flowing from the
statute and the unavailability of nondiscriminatory alterna-
tives adequate to preserve the local interests at stake.
Hunt v. Washington Apple Advertising Comm'n, 432 U. S.
333, 353 (1977)); see also Fort Gratiot Sanitary Landfill,
post, at ___; New Energy Co., supra, at 278-279.   At a
minimum such facial discrimination invokes the strictest
scrutiny of any purported legitimate local purpose and of
the absence of nondiscriminatory alternatives.  Hughes v.
Oklahoma, 441 U. S. 322, 337 (1979).
       The State's argument here does not significantly differ
from the Alabama Supreme Court's conclusions on the
legitimate local purposes of the additional fee imposed,
which were:
            The Additional Fee serves these legitimate local
purposes that cannot be adequately served by reason-
able nondiscriminatory alternatives:  (1) protection of
the health and safety of the citizens of Alabama from
toxic substances; (2) conservation of the environment
and the state's natural resources; (3) provision for
compensatory revenue for the costs and burdens that
out-of-state waste generators impose by dumping their
hazardous waste in Alabama; (4) reduction of the
overall flow of wastes traveling on the state's highways,
which flow creates a great risk to the health and safety
of the state's citizens.  584 So.2d, at 1389.

These may all be legitimate local interests, and petitioner
has not attacked them.  But only rhetoric, and not explana-
tion, emerges as to why Alabama targets only interstate
hazardous waste to meet these goals.  As found by the Trial
Court,  [a]lthough the Legislature imposed an additional fee
of $72.00 per ton on waste generated outside Alabama,
there is absolutely no evidence before this Court that waste
generated outside Alabama is more dangerous than waste
generated in Alabama.  The Court finds under the facts of
this case that the only basis for the additional fee is the
origin of the waste.  App. to Pet. for Cert. 83a-84a.  In the
face of such findings, invalidity under the Commerce Clause
necessarily follows, for  whatever [Alabama's] ultimate
purpose, it may not be accomplished by discriminating
against articles of commerce coming from outside the State
unless there is some reason, apart from their origin, to treat
them differently.  Philadelphia v. New Jersey, 437 U. S., at
626-627; see New Energy Co., supra, at 279-280.  The
burden is on the State to show that  the discrimination is
demonstrably justified by a valid factor unrelated to
economic protectionism, Wyoming v. Oklahoma, 502 U. S.
", " (slip op., at 16) (1992) (emphasis added), and it has
not carried this burden.  Cf. Fort Gratiot Sanitary Landfill,
post, at ___.
       Ultimately, the State's concern focuses on the volume of
the waste entering the Emelle facility.  Less discriminato-
ry alternatives, however, are available to alleviate this
concern, not the least of which are a generally applicable
per-ton additional fee on all hazardous waste disposed of
within Alabama, cf. Commonwealth Edison Co. v. Montana,
453 U. S. 609, 619 (1981), or a per-mile tax on all vehicles
transporting hazardous waste across Alabama roads, cf.
American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266,
286 (1987), or an evenhanded cap on the total tonnage
landfilled at Emelle, see Philadelphia v. New Jersey, 437
U. S., at 626, which would curtail volume from all sources.
To the extent Alabama's concern touches environmental
conservation and the health and safety of its citizens, such
concern does not vary with the point of origin of the waste,
and it remains within the State's power to monitor and
regulate more closely the transportation and disposal of all
hazardous waste within its borders.  Even with the possible
future financial and environmental risks to be borne by
Alabama, such risks likewise do not vary with the waste's
State of origin in a way allowing foreign, but not local,
waste to be burdened.  In sum, we find the additional fee
to be  an obvious effort to saddle those outside the State
with most of the burden of slowing the flow of waste into
the Emelle facility.  Philadelphia v. New Jersey, 437 U. S.,
at 629.   That legislative effort is clearly impermissible
under the Commerce Clause of the Constitution.  Ibid.
       Our decisions regarding quarantine laws do not counsel
a different conclusion.  The Act's additional fee may not
legitimately be deemed a quarantine law because Alabama
permits both the generation and landfilling of hazardous
waste within its borders and the importation of still more
hazardous waste subject to payment of the additional fee.
In any event, while it is true that certain quarantine laws
have not been considered forbidden protectionist measures,
even though directed against out-of-state commerce, those
laws  did not discriminate against interstate commerce as
such, but simply prevented traffic in noxious articles,
whatever their origin.  Philadelphia v. New Jersey, supra,
at 629.  As the Court as stated in Guy v. Baltimore, 100
U. S., at 443:
 In the exercise of its police powers, a State may
exclude from its territory, or prohibit the sale therein
of any articles which, in its judgment, fairly exercised,
are prejudicial to the health or which would endanger
the lives or property of its people.  But if the State,
under the guise of exerting its police powers, should
make such exclusion or prohibition applicable solely to
articles, of that kind, that may be produced or manu-
factured in other States, the courts would find no
difficulty in holding such legislation to be in conflict
with the Constitution of the United States.

See also Reid v. Colorado, 187 U. S. 137, 151 (1902);
Railroad Co. v. Husen, 95 U. S. 465, 472 (1878).
       The law struck down in Philadelphia v. New Jersey left
local waste untouched, although no basis existed by which
to distinguish interstate waste.  But  [i]f one is inherently
harmful, so is the other.  Yet New Jersey has banned the
former while leaving its landfill sites open to the latter.
437 U. S., at 629.  Here, the additional fee applies only to
interstate hazardous waste, but at all points from its
entrance into Alabama until it is landfilled at the Emelle
facility, every concern related to quarantine applies perforce
to local hazardous waste, which pays no additional fee.  For
this reason, the additional fee does not survive the appro-
priate scrutiny applicable to discriminations against
interstate commerce.
       Maine v. Taylor, 477 U. S. 131 (1986), provides no
additional justification.  Maine there demonstrated that the
out-of-state baitfish were subject to parasites foreign to in-
state baitfish.  This difference posed a threat to the State's
natural resources, and absent a less discriminatory means
of protecting the environment"and none was available-
"the importation of baitfish could properly be banned.  Id.,
at 140.  To the contrary, the record establishes that the
hazardous waste at issue in this case is the same regardless
of its point of origin.  As noted in Fort Gratiot Sanitary
Landfill,  our conclusion would be different if the imported
waste raised health or other concerns not presented by
[Alabama] waste.  Post, at ".  Because no unique threat
is posed, and because adequate means other than overt
discrimination meet Alabama's concerns, Maine v. Taylor
provides the State no respite.
                                III
       The decision of the Alabama Supreme Court is reversed,
and the cause remanded for proceedings not inconsistent
with this opinion, including consideration of the appropriate
relief to petitioner.  See McKesson Corp. v. Florida Division
of Alcoholic Beverages & Tobacco, 496 U. S. 18, 31 (1990);
Tyler Pipe Industries, Inc. v. Washington State Dept. of
Rev., 483 U. S. 232, 251-253 (1987).
                                                 So ordered.





                    SUPREME COURT OF THE UNITED STATES
                             No. 91-471
 
               CHEMICAL WASTE MANAGEMENT, INC., PETIT-
                        IONER v. GUY HUNT, GOVERNOR OF
                                ALABAMA et al.
                 on writ of certiorari to the supreme court of
                                    alabama
                                [June 1, 1992]

           Chief Justice Rehnquist, dissenting.
           I have already had occasion to set out my view that
States need not ban all waste disposal as a precondition to
protecting themselves from hazardous or noxious materials
brought across the State's borders.  See Philadelphia v.
New Jersey, 437 U. S. 617, 629 (1978) (Rehnquist, J.,
dissenting).  In a case also decided today, I express my
further view that States may take actions legitimately
directed at the preservation of the State's natural resources,
even if those actions incidentally work to disadvantage
some out-of-state waste generators.  See Fort Gratiot
Sanitary Landfill, Inc. v. Michigan Dept. of Natural
Resources, post, ___ U. S. ___ (1992) (Rehnquist, C.J.,
dissenting).  I dissent today, largely for the reasons I have
set out in those two cases.  Several additional comments
that pertain specifically to this case, though, are in order.
           Taxes are a recognized and effective means for discourag-
ing the consumption of scarce commodities " in this case
the safe environment that attends appropriate disposal of
hazardous wastes.  Cf. 26 U. S. C. A. 4681, 4682 (Supp.
1992) (tax on ozone-depleting chemicals); 26 U. S. C. 4064
(gas guzzler excise tax).  I therefore see nothing unconstitu-
tional in Alabama's use of a tax to discourage the export of
this commodity to other States, when the commodity is a
public good that Alabama has helped to produce.  Cf. Fort
Gratiot, post, at __ (Rehnquist, C.J., dissenting) (slip op.,
at 5).  Nor do I see any significance in the fact that Ala-
bama has chosen to adopt a differential tax rather than an
outright ban.  Nothing in the Commerce Clause requires
Alabama to adopt an  all or nothing regulatory approach
to noxious materials coming from without the State.  See
Mintz v. Baldwin, 289 U. S. 346 (1933) (upholding State's
partial ban on cattle importation).
           In short, the Court continues to err by its failure to
recognize that waste"in this case admittedly hazardous
waste"presents risks to the public health and environment
that a State may legitimately wish to avoid, and that
the State may pursue such an objective by means less
Draconian than an outright ban.  Under force of this
Court's precedent, though, it increasingly appears that the
only avenue by which a State may avoid the importation of
hazardous wastes is to ban such waste disposal altogether,
regardless of the waste's source of origin.  I see little logic
in creating, and nothing in the Commerce Clause that
requires us to create, such perverse regulatory incentives.
The Court errs in substantial measure because it refuses to
acknowledge that a safe and attractive environment is the
commodity really at issue in cases such as this, see Fort
Gratiot, post, at __ (slip op., at 2) (Rehnquist, C.J., dissent-
ing).  The result is that the Court today gets it exactly
backward when it suggests that Alabama is attempting to
 isolate itself from a problem common to the several
States, ante, at 4.  To the contrary, it is the 34 States that
have no hazardous waste facility whatsoever, not to
mention the remaining 15 States with facilities all smaller
than Emelle, that have isolated themselves.
           There is some solace to be taken in the Court's conclu-
sion, ante, at 9, that Alabama may impose a substantial fee
on the disposal of all hazardous waste, or a per-mile fee on
all vehicles transporting such waste, or a cap on total
disposals at the Emelle facility.  None of these approaches
provide Alabama the ability to tailor its regulations in a
way that the State will be solving only that portion of the
problem that it has created, see Fort Gratiot, post, at __
(slip op., at 4) (Rehnquist, C.J., dissenting).  But they do
at least give Alabama some mechanisms for requiring
waste-generating States to compensate Alabama for the
risks the Court declares Alabama must run.
           Of course, the costs of any of the proposals that the Court
today approves will be less than fairly apportioned.  For
example, should Alabama adopt a flat transportation or
disposal tax, Alabama citizens will be forced to pay a
disposal tax equal to that faced by dumpers from outside
the State.  As the Court acknowledges, such taxes are a
permissible effort to recoup compensation for the risks
imposed on the State.  Yet Alabama's general tax revenues
presumably already support the State's various inspection
and regulatory efforts designed to ensure the Emelle
facility's safe operation.  Thus, Alabamans will be made to
pay twice, once through general taxation and a second time
through a specific disposal fee.  Permitting differential
taxation would, in part, do no more than recognize that,
having been made to bear all the risks from such hazardous
waste sites, Alabama should not in addition be made to pay
more than others in supporting activities that will help to
minimize the risk.
           Other mechanisms also appear open to Alabama to
achieve results similar to those that are seemingly fore-
closed today.  There seems to be nothing, for example, that
would prevent Alabama from providing subsidies or other
tax breaks to domestic industries that generate hazardous
wastes.  Or Alabama may, under the market participant
doctrine, open its own facility catering only to Alabama
customers.  See, e.g., White v. Massachusetts Council of
Construction Employers, Inc., 460 U. S. 204, 206-208
(1983); Reeves, Inc. v. Stake, 447 U. S. 429, 436-437 (1980);
Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 810
(1976).  But certainly we have lost our way when we
require States to perform such gymnastics, when such
performances will in turn produce little difference in
ultimate effects.  In sum, the only sure byproduct of today's
decision is additional litigation.  Assuming that those
States that are currently the targets for large volumes of
hazardous waste do not simply ban hazardous waste sites
altogether, they will undoubtedly continue to search for a
way to limit their risk from sites in operation.  And each
new arrangement will generate a new legal challenge, one
that will work to the principal advantage only of those
States that refuse to contribute to a solution.
    For the foregoing reasons, I respectfully dissent.



