Cite as: 520 U. S. 564 (1997)
Opinion of the Court
a specific penalty on the activity itself, is of no moment. Thus, in New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 274 (1988), the Court invalidated an Ohio statute that provided a tax credit for sales of ethanol produced in State, but not ethanol produced in certain other States; the law "deprive[d] certain products of generally available beneficial tax treatment because they are made in certain other States, and thus on its face appear[ed] to violate the cardinal requirement of nondiscrimination." 12 Given the fact that the burden of Maine's facially discriminatory tax scheme falls by design in a predictably disproportionate way on outof-staters,13 the pernicious effect on interstate commerce is
12 See Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 268 (1984) (discriminatory excise tax exemption); Maryland v. Louisiana, 451 U. S. 725, 756 (1981) (tax scheme "unquestionably discriminates against interstate commerce . . . as the necessary result of various tax credits and exclusions"); Westinghouse Elec. Corp. v. Tully, 466 U. S. 388, 399-400, and n. 9 (1984) (per curiam); see also West Lynn Creamery, Inc. v. Healy, 512 U. S., at 210 (Scalia, J., concurring in judgment).
13 Because the Maine tax is facially discriminatory, this case is unlike Commonwealth Edison Co. v. Montana, 453 U. S. 609 (1981). There, we held permissible under the Commerce Clause a generally applicable Montana severance tax on coal extracted from in-state mines. Appellants challenged the tax arguing, inter alia, that it discriminated against interstate commerce because 90 percent of the coal happened to be shipped to out-of-state users, and the tax burden was therefore borne principally by nonresidents. We rejected this claim, noting that "there is no real discrimination in this case; the tax burden is borne according to the amount of coal consumed and not according to any distinction between in-state and out-of-state consumers." Id., at 619. We recognized that an approach to the dormant Commerce Clause requiring an assessment of the likely demand for a particular good by nonresidents and a State's ability to shift its tax burden out of State "would require complex factual inquiries about such issues as elasticity of demand for the product and alternative sources of supply," id., at 619, n. 8, and declined to adopt such a difficult to police test. Here, in contrast, the tax scheme functions by design and on its face to burden out-of-state users disproportionately. Our analysis in Commonwealth Edison is therefore inapplicable.
CTS Corp. v. Dynamics Corp. of America, 481 U. S. 69 (1987), is also inapposite. In that case, we rejected the argument that a facially nondis-
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