426
Souter, J., dissenting
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 403.14 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 legislative 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 Highway Dept. v. Barnwell 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 otherwise set, the Clarkstown voters are funding their benefit by assessing themselves and paying an economic penalty. Any whiff of economic protectionism is far from obvious.15
14 I recognize that the economics differ if a State does not enjoy a significant price advantage over its neighbors and thus cannot pass along the added costs associated with its local processing requirement, but such States are unlikely to adopt local processing requirements for precisely that reason.
15 This argument does not alone foreclose the possibility of economic protectionism in this case, as the ordinance could burden, in addition to the residents of Clarkstown, out-of-town trash processors who would have sought Clarkstown's business in the absence of flow control. But as we
Page: Index Previous 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 NextLast modified: October 4, 2007