The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_471/91_471.zd

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SUPREME COURT OF THE UNITED STATES
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No. 91-471
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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.