344
Opinion of the Court
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., 486 U. S., 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," 6 Wyoming v. Oklahoma, 502 U. S. 437, 454 (1992) (emphasis added), and it has not carried this burden. Cf. Fort Gratiot Sanitary Landfill, post, at 361.
Ultimately, the State's concern focuses on the volume of the waste entering the Emelle facility.7 Less discriminatory
6 The Alabama Supreme Court found no "economic protectionism" here, and thus purported to distinguish Philadelphia v. New Jersey, based on its conclusions that the legislature was motivated by public health and environmental concerns. 584 So. 2d 1367, 1388-1389 (1991). This narrow focus on the intended consequence of the additional fee does not conform to our precedents, for "[a] finding that state legislation constitutes 'economic protectionism' may be made on the basis of either discriminatory purpose, see Hunt v. Washington Apple Advertising Comm'n, 432 U. S. 333, 352-353 (1977), or discriminatory effect, see Philadelphia v. New Jersey, supra." Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 270 (1984). The "virtually per se rule of invalidity," Philadelphia v. New Jersey, supra, at 624, applies "not only to laws motivated solely by a desire to protect local industries from out-of-state competition, but also to laws that respond to legitimate local concerns by discriminating arbitrarily against interstate trade." Maine v. Taylor, 477 U. S. 131, 148, n. 19 (1986).
7 "The risk created by hazardous waste and other similarly dangerous waste materials is proportional to the volume of such waste materials present, and may be controlled by controlling that volume." Brief for Respondents 38 (citation omitted; emphasis in original).
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