OCTOBER TERM, 1993
Syllabus
certiorari to the supreme court of oregon
No. 93-70. Argued January 18, 1994—Decided April 4, 1994*
Oregon imposes a $2.25 per ton surcharge on the in-state disposal of solid waste generated in other States and an $0.85 per ton fee on the disposal of waste generated within Oregon. Petitioners sought review of the out-of-state surcharge in the State Court of Appeals, challenging the administrative rule establishing the surcharge and its enabling statutes under, inter alia, the Commerce Clause. The court upheld the statutes and rule, and the State Supreme Court affirmed. Despite the Oregon statutes' explicit reference to out-of-state waste's geographical location, the court reasoned, the surcharge's express nexus to actual costs incurred by state and local government rendered it a facially constitutional "compensatory fee."
Held: Oregon's surcharge is facially invalid under the negative Commerce
Clause. Pp. 98-108. (a) The first step in analyzing a law under the negative Commerce Clause is to determine whether it discriminates against, or regulates evenhandedly with only incidental effects on, interstate commerce. If the restriction is discriminatory—i. e., favors in-state economic interests over their out-of-state counterparts—it is virtually per se invalid. By contrast, nondiscriminatory regulations are valid unless the burden imposed on interstate commerce is "clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., 397 U. S. 137, 142. Oregon's surcharge is obviously discriminatory on its face. It subjects waste from other States to a fee almost three times greater than the charge imposed on in-state waste, and the statutory determinant for whether the fee applies is whether or not the waste was generated out of state. The alleged compensatory aim of the surcharge has no bearing on whether it is facially discriminatory. See Chemical Waste Management, Inc. v. Hunt, 504 U. S. 334, 340-341. Pp. 98-100. (b) Because the surcharge is discriminatory, the virtually per se rule of invalidity—not the Pike balancing test—provides the proper legal
*Together with No. 93-108, Columbia Resource Co. v. Environmental Quality Commission of the State of Oregon, also on certiorari to the same court.
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