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SUPREME COURT OF THE UNITED STATES
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No. 92-1402
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C & A CARBONE, INC., et al., PETITIONERS v.
TOWN OF CLARKSTOWN, NEW YORK
on writ of certiorari to the appellate division,
supreme court of new york, second judicial dept.
[May 16, 1994]

  Justice Souter, with whom The Chief Justice and
Justice Blackmun join, dissenting.
  The majority may invoke -well-settled principles of our
Commerce Clause jurisprudence,- ante, at 1, but it does
so to strike down an ordinance unlike anything this
Court has ever invalidated.  Previous cases have held
that the -negative- or -dormant- aspect of the Commerce
Clause renders state or local legislation unconstitutional
when it discriminates against out-of-state or out-of-town
businesses such as those that pasteurize milk, hull
shrimp, or mill lumber, and the majority relies on these
cases because of what they have in common with this
one:  out-of-state processors are excluded from the local
market (here, from the market for trash processing
services).  What the majority ignores, however, are the
differences between our local processing cases and this
one:  the exclusion worked by Clarkstown's Local Law 9
bestows no benefit on a class of local private actors, but
instead directly aids the government in satisfying a
traditional governmental responsibility.  The law does
not differentiate between all local and all out-of-town
providers of a service, but instead between the one
entity responsible for ensuring that the job gets done
and all other enterprises, regardless of their location.
The ordinance thus falls outside that class of tariff or
protectionist measures that the Commerce Clause has
traditionally been thought to bar States from enacting
against each other, and when the majority subsumes the
ordinance within the class of laws this Court has struck
down as facially discriminatory (and so avails itself of
our -virtually per se rule- against such statutes, see
Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978)),
the majority is in fact greatly extending the Clause's
dormant reach.
  There are, however, good and sufficient reasons
against expanding the Commerce Clause's inherent
capacity to trump exercises of state authority such as
the ordinance at issue here.  There is no indication in
the record that any out-of-state trash processor has been
harmed, or that the interstate movement or disposition
of trash will be affected one whit.  To the degree Local
Law 9 affects the market for trash processing services,
it does so only by subjecting Clarkstown residents and
businesses to burdens far different from the burdens of
local favoritism that dormant Commerce Clause jurispru-
dence seeks to root out.  The town has found a way to
finance a public improvement, not by transferring its
cost to out-of-state economic interests, but by spreading
it among the local generators of trash, an equitable
result with tendencies that should not disturb the
Commerce Clause and should not be disturbed by us.

                      I
  Prior to the 1970's, getting rid of the trash in
Clarkstown was just a matter of taking it to the local
dump.  But over the course of that decade, state
regulators cited the town for dumping in violation of
environmental laws, and in August 1989 the town
entered into a consent decree with the New York State
Department of Environmental Conservation, promising
to close the landfill, clean up the environmental damage,
and make new arrangements to dispose of the town's
solid waste.  Clarkstown agreed to build a -transfer
station- where the town's trash would be brought for
sorting out recyclable material and baling the
nonrecyclable residue for loading into long-haul trucks
bound for out-of-state disposal sites.
  Instead of building the transfer station itself,
Clarkstown contracted with a private company to build
the station and run it for five years, after which the
town could buy it for $1.  The town based the size of
the facility on its best estimate of the amount of trash
local residents would generate and undertook to deliver
that amount to the transfer station each year, or to pay
a substantial penalty to compensate for any shortfall.
This -put or pay- contract, together with the right to
charge an $81 -tipping- fee for each ton of waste
collected at the transfer station, was meant to assure
the company its return on investment.
  Local Law 9, the ordinance at issue here, is an
integral part of this financing scheme.  It prohibits
individual trash-generators within the town from evading
payment of the $81 tipping fee by requiring that all
residential, commercial, and industrial waste generated
or collected within the town be delivered to the transfer
station.  While Clarkstown residents may dump their
waste at another locally licensed recycling center, once
such a private recycler culls out the recyclable materials,
it must dispose of any residue the same way other
Clarkstown residents do, by taking it to the town's
transfer station.  Local Law 9, 3C, 3D (1990).  If out-
of-towners wish to dispose of their waste in Clarkstown
or recycle it there, they enter the town subject to the
same restrictions as Clarkstown residents, in being
required to use only the town-operated transfer station
or a licensed recycling center.  5A.
 Petitioner C & A Carbone, Inc., operated a recycling
center in Clarkstown, according to a state permit autho-
rizing it to collect waste, separate out the recyclables for
sale, and dispose of the rest.  In violation of Local Law
9, Carbone failed to bring this nonrecyclable residue to
the town transfer station, but took it directly to out-of-
state incinerators and landfills, including some of the
very same ones to which the Clarkstown transfer station
sends its trash.  Apparently, Carbone bypassed the
Clarkstown facility on account of the $81 tipping fee,
saving Carbone money, but costing the town thousands
in lost revenue daily.  In this resulting legal action,
Carbone's complaint is one that any Clarkstown trash
generator could have made: the town has created a
monopoly on trash processing services, and residents are
no longer free to provide these services for themselves
or to contract for them with others at a mutually agree-
able price.

                     II
 We are not called upon to judge the ultimate wisdom
of creating this local monopoly, but we are asked to say
whether Clarkstown's monopoly violates the Commerce
Clause, as long read by this Court to limit the power of
state and local governments to discriminate against
interstate commerce:
-[The] `negative' aspect of the Commerce Clause
prohibits economic protectionism-that is, regulatory
measures designed to benefit in-state economic in-
terests by burdening out-of-state competitors.  Thus,
state statutes that clearly discriminate against
interstate commerce are routinely struck down,
unless the discrimination is demonstrably justified
by a valid factor unrelated to economic protection-
ism.-  New Energy Co. of Indiana v. Limbach, 486
U. S. 269, 273-274 (1988) (citations omitted).
This limitation on the state and local power has been
seen implicit in the Commerce Clause because, as the
majority recognizes, the Framers sought to dampen
regional jealousies in general and, in particular, to
eliminate retaliatory tariffs, which had poisoned com-
mercial relations under the Articles of Confederation.
Ante, at 5.  Laws that hoard for local businesses the
right to serve local markets or develop local resources
work to isolate States from each other and to incite
retaliation, since no State would stand by while another
advanced the economic interests of its own business
classes at the expense of its neighbors.

                      A
 The majority argues that resolution of the issue before
us is controlled by a line of cases in which we have
struck down state or local laws that discriminate
against out-of state or out-of-town providers of process-
ing services.  See ante, at 6-7.  With perhaps one ex-
ception, the laws invalidated in those cases were pa-
tently discriminatory, differentiating by their very terms
between in-state and out-of-state (or local and nonlocal)
processors.  One ordinance, for example, forbad selling
pasteurized milk -`unless the same shall have been pas-
teurized and bottled . . . within a radius of five miles
from the central portion of the City of Madison . . . .'-
Dean Milk Co. v. Madison, 340 U. S. 349, 350, n. 1
(1951) (quoting General Ordinances of the City of Madi-
son 7.21 (1949)).  The other laws expressly discriminat-
ed against commerce crossing state lines, placing these
local processing cases squarely within the larger class of
cases in which this Court has invalidated facially dis-
criminatory legislation.
 As the majority recognizes, Local Law 9 shares two
features with these local processing cases.  It regulates
a processing service available in interstate commerce,
i.e., the sorting and baling of solid waste for disposal.
And it does so in a fashion that excludes out-of-town
trash processors by its very terms.  These parallels
between Local Law 9 and the statutes previously invali-
dated confer initial plausibility on the majority's classifi-
cation of this case with those earlier ones on processing,
and they even bring this one within the most general
language of some of the earlier cases, abhorring the
tendency of such statutes -to impose an artificial rigidi-
ty on the economic pattern of the industry,- Toomer v.
Witsell, 334 U. S. 385, 404-405 (1948).

                      B
 There are, however, both analytical and practical
differences between this and the earlier processing
cases, differences the majority underestimates or over-
looks but which, if given their due, should prevent this
case from being decided the same way.  First, the terms
of Clarkstown's ordinance favor a single processor, not
the class of all such businesses located in Clarkstown.
Second, the one proprietor so favored is essentially an
agent of the municipal government, which (unlike
Carbone or other private trash processors) must ensure
the removal of waste according to acceptable standards
of public health.  Any discrimination worked by Local
Law 9 thus fails to produce the sort of entrepreneurial
favoritism we have previously defined and condemned as
protectionist.

                      1
 The outstanding feature of the statutes reviewed in
the local processing cases is their distinction between
two classes of private economic actors according to
location, favoring shrimp hullers within Louisiana, milk
pasteurizers within five miles of the center of Madison,
and so on.  See Foster-Fountain Packing Co. v. Haydel,
278 U. S. 1 (1928); Dean Milk Co. v. Madison, supra.
Since nothing in these local processing laws prevented
a proliferation of local businesses within the State or
town, the out-of-town processors were not excluded as
part and parcel of a general exclusion of private firms
from the market, but as a result of discrimination
among such firms according to geography alone.  It was
because of that discrimination in favor of local business-
es, preferred at the expense of their out-of-town or out-
of-state competitors, that the Court struck down those
local processing laws as classic examples of the eco-
nomic protectionism the dormant Commerce Clause
jurisprudence aims to prevent.  In the words of one
commentator summarizing our case law, it is laws
-adopted for the purpose of improving the competitive
position of local economic actors, just because they are
local, vis---vis their foreign competitors- that offend the
Commerce Clause.  Regan, The Supreme Court and
State Protectionism: Making Sense of the Dormant
Commerce Clause, 84 Mich. L. Rev. 1091, 1138 (1986).
The Commerce Clause does not otherwise protect access
to local markets.  Id., at 1128.
 The majority recognizes, but discounts, this difference
between laws favoring all local actors and this law
favoring a single municipal one.  According to the ma-
jority, -this difference just makes the protectionist effect
of the ordinance more acute- because outside investors
cannot even build competing facilities within
Clarkstown.  Ante, at 8.  But of course Clarkstown
investors face the same prohibition, which is to say that
Local Law 9's exclusion of outside capital is part of a
broader exclusion of private capital, not a discrimination
against out-of-state investors as such.  Cf. Lewis v. BT
Investment Managers, Inc., 447 U. S. 27 (1980) (striking
down statute prohibiting businesses owned by out-of-
state banks, bank holding companies, or trust companies
from providing investment advisory services).  Thus,
while these differences may underscore the ordinance's
anticompetitive effect, they substantially mitigate any
protectionist effect, for subjecting out-of-town investors
and facilities to the same constraints as local ones is
not economic protectionism.  See New Energy Co. of
Indiana v. Limbach, 486 U. S., at 273-274.

                      2
 Nor is the monopolist created by Local Law 9 just
another private company successfully enlisting local
government to protect the jobs and profits of local citi-
zens.  While our previous local processing cases have
barred discrimination in markets served by private
companies, Clarkstown's transfer station is essentially a
municipal facility, built and operated under a contract
with the municipality and soon to revert entirely to
municipal ownership.  This, of course, is no mere coin-
cidence, since the facility performs a municipal function
that tradition as well as state and federal law recognize
as the domain of local government.  Throughout the
history of this country, municipalities have taken re-
sponsibility for disposing of local garbage to prevent
noisome smells, obstruction of the streets, and threats
to public health, and today 78 percent of landfills
receiving municipal solid waste are owned by local
governments.  See U. S. Environmental Protection Agen-
cy, Resource Conservation and Recovery Act, Subtitle D
Study: Phase 1 Report, table 4-2, p. 4-7 (Oct. 1986).
The National Government provides -technical and finan-
cial assistance to States or regional authorities for
comprehensive planning- with regard to the disposal of
solid waste, 42 U. S. C. 6941, and the State of New
York authorizes local governments to prepare such
management plans for the proper disposal of all solid
waste generated within their jurisdictions, N. Y. Envir.
Conserv. Law 27-0107 (McKinney Supp. 1994).  These
general provisions underlie Clarkstown's more specific
obligation (under its consent decree with the New York
State Department of Environmental Conservation) to
establish a transfer station in place of the old town
dump, and it is to finance this transfer station that
Local Law 9 was passed.
 The majority ignores this distinction between public
and private enterprise, equating Local Law 9's
-hoard[ing]- of solid waste for the municipal transfer
station with the design and effect of ordinances that
restrict access to local markets for the benefit of local
private firms.  Ante, at 7.  But private businesses,
whether local or out of State, first serve the private
interests of their owners, and there is therefore only
rarely a reason other than economic protectionism for
favoring local businesses over their out-of-town competi-
tors.  The local government itself occupies a very differ-
ent market position, however, being the one entity that
enters the market to serve the public interest of local
citizens quite apart from private interest in private
gain.  Reasons other than economic protectionism are
accordingly more likely to explain the design and effect
of an ordinance that favors a public facility.  The facili-
ty as constructed might, for example, be one that pri-
vate economic actors, left to their own devices, would
not have built, but which the locality needs in order to
abate (or guarantee against creating) a public nuisance.
There is some evidence in this case that this is so, as
the New York State Department of Environmental
Conservation would have had no reason to insist that
Clarkstown build its own transfer station if the private
market had furnished adequate processing capacity to
meet Clarkstown's needs.  An ordinance that favors a
municipal facility, in any event, is one that favors the
public sector, and if -we continue to recognize that the
States occupy a special and specific position in our
constitutional system and that the scope of Congress'
authority under the Commerce Clause must reflect that
position,- Garcia v. San Antonio Metropolitan Transit
Authority, 469 U. S. 528, 556 (1985), then surely this
Court's dormant Commerce Clause jurisprudence must
itself see that favoring state-sponsored facilities differs
from discriminating among private economic actors, and
is much less likely to be protectionist.

                      3
 Having established that Local Law 9 does not serve
the competitive class identified in previous local process-
ing cases and that Clarkstown differs correspondingly
from other local processors, we must ask whether these
differences justify a standard of dormant Commerce
Clause review that differs from the virtually fatal scru-
tiny imposed in those earlier cases.  I believe they do.
 The justification for subjecting the local processing
laws and the broader class of clearly discriminatory
commercial regulation to near-fatal scrutiny is the virtu-
al certainty that such laws, at least in their discrimina-
tory aspect, serve no legitimate, nonprotectionist pur-
pose.  See Philadelphia v. New Jersey, 437 U. S. 617,
624 (1978) (-[W]here simple economic protectionism is
effected by state legislation, a virtually per se rule of
invalidity has been erected-).  Whether we find the
-the evil of protectionism,- id., at 626, in the clear
import of specific statutory provisions or in the legisla-
ture's ultimate purpose, the discriminatory scheme is
almost always designed either to favor local industry, as
such, or to achieve some other goal while exporting a
disproportionate share of the burden of attaining it,
which is merely a subtler form of local favoritism.  Id.,
at 626-628.
 On the other hand, in a market served by a municipal
facility, a law that favors that single facility over all
others is a law that favors the public sector over all
private-sector processors, whether local or out of State.
Because the favor does not go to local private competi-
tors of out-of-state firms, out-of-state governments will
at the least lack a motive to favor their own firms in
order to equalize the positions of private competitors.
While a preference in favor of the government may
incidentally function as local favoritism as well, a more
particularized enquiry is necessary before a court can
say whether such a law does in fact smack too strongly
of economic protectionism.  If Local Law 9 is to be
struck down, in other words, it must be under that test
most readily identified with Pike v. Bruce Church, Inc.,
397 U. S. 137 (1970).

                     III
 We have said that when legislation that does not
facially discriminate -comes into conflict with the Com-
merce Clause's overriding requirement of a national
`common market,' we are confronted with the task of
effecting an accommodation of the competing national
and local interests.-  Hunt v. Washington State Apple
Advertising Comm'n, 432 U. S. 333, 350 (1977).  Al-
though this analysis of competing interests has some-
times been called a -balancing test,- it is not so much
an open-ended weighing of an ordinance's pros and cons,
as an assessment of whether an ordinance discriminates
in practice or otherwise unjustifiably operates to isolate
a State's economy from the national common market.  If
a statute or local ordinance serves a legitimate local
interest and does not patently discriminate, -it will be
upheld unless the burden imposed on [interstate] com-
merce is clearly excessive in relation to the putative
local benefits.-  Pike v. Bruce Church, Inc., supra, at
142.  The analysis is similar to, but softer around the
edges than, the test we employ in cases of overt dis-
crimination.  -[T]he question becomes one of degree,-
and its answer depends on the nature of the burden on
interstate commerce, the nature of the local interest,
and the availability of alternative methods for advancing
the local interest without hindering the national one.
Id., at 142, 145.
 The primary burden Carbone attributes to flow control
ordinances such as Local Law 9 is that they -prevent
trash from being sent to the most cost-effective disposal
facilities, and insulate the designated facility from all
price competition.-  Brief for Petitioner 32.  In this case,
customers must pay $11 per ton more for dumping
trash at the Clarkstown transfer station than they
would pay at Carbone's facility, although this dollar
figure presumably overstates the burden by disguising
some differences between the two:  according to its state
permit, 90 percent of Carbone's waste stream comprises
recyclable cardboard, while the Clarkstown facility takes
all manner of less valuable waste, which it treats with
state-of-the-art environmental technology not employed
at Carbone's more rudimentary plant.
 Fortunately, the dollar cost of the burden need not be
pinpointed, its nature being more significant than its
economic extent.  When we look to its nature, it should
be clear that the monopolistic character of Local Law 9's
effects is not itself suspicious for purposes of the Com-
merce Clause.  Although the right to compete is a hall-
mark of the American economy and local monopolies are
subject to challenge under the century-old Sherman
Act, the bar to monopolies (or, rather, the authority
to dismember and penalize them) arises from a statuto-
ry, not a constitutional, mandate.  No more than the
Fourteenth Amendment, the Commerce Clause -does not
enact Mr. Herbert Spencer's Social Statics . . .  [or]
embody a particular economic theory, whether of pater-
nalism . . . or of laissez faire.-  Lochner v. New York,
198 U. S. 45, 75 (1905) (Holmes, J., dissenting).  The
dormant Commerce Clause does not -protec[t] the partic-
ular structure or methods of operation in a[ny] . . .
market.-  Exxon Corp. v. Governor of Md., 437 U. S.
117, 127 (1978).  The only right to compete that it
protects is the right to compete on terms independent of
one's location.
 While the monopolistic nature of the burden may be
disregarded, any geographically discriminatory elements
must be assessed with care.  We have already observed
that there is no geographically based selection among
private firms, and it is clear from the face of the ordi-
nance that nothing hinges on the source of trash that
enters Clarkstown or upon the destination of the pro-
cessed waste that leaves the transfer station.  There is,
to be sure, an incidental local economic benefit, for the
need to process Clarkstown's trash in Clarkstown will
create local jobs.  But this local boon is mitigated by
another feature of the ordinance, in that it finances
whatever benefits it confers on the town from the pock-
ets of the very citizens who passed it into law.  On the
reasonable assumption that no one can avoid producing
some trash, every resident of Clarkstown must bear a
portion of the burden Local Law 9 imposes to support
the municipal monopoly, an uncharacteristic feature of
statutes claimed to violate the Commerce Clause.
 By way of contrast, most of the local processing stat-
utes we have previously invalidated imposed require-
ments that made local goods more expensive as they
headed into the national market, so that out-of-state
economies bore the bulk of any burden.  Requiring that
Alaskan timber be milled in that State prior to export
would add the value of the milling service to the Alas-
kan economy at the expense of some other State, but
would not burden the Alaskans who adopted such a law.
Cf. South-Central Timber Development, Inc. v. Wunnicke,
467 U. S. 82, 92 (1984).  Similarly, South Carolinians
would retain the financial benefit of a local processing
requirement for shrimp without paying anything more
themselves.  Cf. Toomer v. Witsell, 334 U. S., at 403.
And in Philadelphia v. New Jersey, 437 U. S., at 628,
the State attempted to export the burden of conserving
its scarce landfill space by barring the importation of
out-of-state waste.  See also Brown-Forman Distillers
Corp. v. New York State Liquor Authority, 476 U. S.
573, 580 (1986) (price reduction for in-state consumers
of alcoholic beverages procured at the expense of out-of-
state consumers).  Courts step in through the dormant
Commerce Clause to prevent such exports because legis-
lative action imposing a burden -`principally upon those
without the state . . . is not likely to be subjected to
those political restraints which are normally exerted on
legislation where it affects adversely some interests
within the state.'-  South-Central Timber, supra, at 92
(quoting South Carolina State Highway Dept. v. Barn-
well Brothers, Inc., 303 U. S. 177, 185, n. 2 (1938)); see
also Southern Pacific Co. v. Arizona ex rel. Sullivan,
325 U. S. 761, 767-768, n. 2 (1945).  Here, in contrast,
every voter in Clarkstown pays to fund the benefits of
flow control, however high the tipping fee is set.  Since,
indeed, the mandate to use the town facility will only
make a difference when the tipping fee raises the cost
of using the facility above what the market would other-
wise set, the Clarkstown voters are funding their benefit
by assessing themselves and paying an economic penal-
ty.  Any whiff of economic protectionism is far from
obvious.
 An examination of the record confirms skepticism that
enforcement of the ordinance portends a Commerce
Clause violation, for it shows that the burden falls
entirely on Clarkstown residents.  If the record con-
tained evidence that Clarkstown's ordinance burdened
out-of-town providers of garbage sorting and baling
services, rather than just the local business that is a
party in this case, that fact might be significant.  But
petitioner has presented no evidence that there are
transfer stations outside Clarkstown capable of handling
the town's business, and the record is devoid of evidence
that such enterprises have lost business as a result of
this ordinance.  Cf. Pike v. Bruce Church, Inc., 397
U. S., at 145 (-The nature of th[e] burden is, consti-
tutionally, more significant than its extent- and the
danger to be avoided is that of laws that hoard business
for local residents).  Similarly, if the record supported
an inference that above-market pricing at the
Clarkstown transfer station caused less trash to flow to
out-of-state landfills and incinerators, that, too, might
have constitutional significance.  There is, however, no
evidence of any disruption in the flow of trash from
curbsides in Clarkstown to landfills in Florida and
Ohio.  Here we can confidently say that the only
business lost as a result of this ordinance is business
lost in Clarkstown, as customers who had used Car-
bone's facility drift away in response to any higher fees
Carbone may have to institute to afford its share of city
services; but business lost in Clarkstown as a result of
a Clarkstown ordinance is not a burden that offends the
Constitution.
 This skepticism that protectionism is afoot here is
confirmed again when we examine the governmental
interests apparently served by the local law.  As men-
tioned already, the State and its municipalities need
prompt, sanitary trash processing, which is imperative
whether or not the private market sees fit to serve this
need at an affordable price and to continue doing so
dependably into the future.  The state and local govern-
ments also have a substantial interest in the flow-con-
trol feature to minimize the risk of financing this ser-
vice, for while there may be an element of exaggeration
in the statement that -[r]esource recovery facilities
cannot be built unless they are guaranteed a supply of
discarded material,- H. R. Rep. No. 94-1491, p. 10
(1976), there is no question that a -put or pay- contract
of the type Clarkstown signed will be a significant
inducement to accept municipal responsibility to guaran-
tee efficiency and sanitation in trash processing.  Waste
disposal with minimal environmental damage requires
serious capital investment, id., at 34, and there are
limits on any municipality's ability to incur debt or to
finance facilities out of tax revenues.  Protection of the
public fisc is a legitimate local benefit directly advanced
by the ordinance and quite unlike the generalized ad-
vantage to local businesses that we have condemned as
protectionist in the past.  See Regan, 84 Mich. L. Rev.
at 1120 (-raising revenue for the state treasury is a
federally cognizable benefit-; protectionism is not); cf.
Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of
Natural Resources, 504 U. S. ___, ___ (1992) (slip op., at
3) (law protects private, not publicly owned, waste
disposal capacity for domestic use); Philadelphia v. New
Jersey, 476 U. S., at 627, n. 6 (expressing no opinion
about State's power to favor its own residents in grant-
ing access to state-owned resources).
 Moreover, flow control offers an additional benefit that
could not be gained by financing through a subsidy
derived from general tax revenues, in spreading the cost
of the facility among all Clarkstown residents who
generate trash.  The ordinance does, of course, protect
taxpayers, including those who already support the
transfer station by patronizing it, from ending up with
the tab for making provision for large-volume trash
producers like Carbone, who would rely on the munici-
pal facility when that was advantageous but opt out
whenever the transfer station's price rose above the
market price.  In proportioning each resident's burden
to the amount of trash generated, the ordinance has the
added virtue of providing a direct and measurable deter-
rent to the generation of unnecessary waste in the first
place.  And in any event it is far from clear that the
alternative to flow control (i.e., subsidies from general
tax revenues or municipal bonds) would be less disrup-
tive of interstate commerce than flow control, since a
subsidized competitor can effectively squelch competition
by underbidding it.
 There is, in short, no evidence that Local Law 9 caus-
es discrimination against out-of-town processors, because
there is no evidence in the record that such processors
have lost business as a result of it.  Instead, we know
only that the ordinance causes the local residents who
adopted it to pay more for trash disposal services.  But
local burdens are not the focus of the dormant Com-
merce Clause, and this imposition is in any event readi-
ly justified by the ordinance's legitimate benefits in reli-
able and sanitary trash processing.

                   *  *  *
 The Commerce Clause was not passed to save the
citizens of Clarkstown from themselves.  It should not
be wielded to prevent them from attacking their local
garbage problems with an ordinance that does not dis-
criminate between local and out-of-town participants in
the private market for trash disposal services and that
is not protectionist in its purpose or effect.  Local Law
9 conveys a privilege on the municipal government
alone, the only market participant that bears responsi-
bility for ensuring that adequate trash processing servic-
es continue to be available to Clarkstown residents.
Because the Court's decision today is neither compelled
by our local processing cases nor consistent with this
Court's reason for inferring a dormant or negative as-
pect to the Commerce Clause in the first place, I re-
spectfully dissent.