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a state law that imposes an "undue burden" on interstate commerce because it brings few legitimate (i.e., nonprotectionist) local benefits can be understood as being discriminatory, since the small measure of non-protectionist local benefit suggests strongly that it is simply a pretext for discrimination.

Similarly, a law that discriminates on its face or has a discriminatory impact on interstate commerce without any substantial local non-protectionist benefits imposes an "undue burden", since the non-protectionist local interests will seldom outweigh the burden imposed.

Three General Categories of State Practices

Most dormant commerce clause cases can be placed in three general categories.

the first is where a state tries to "fence out" items of commerce that compete with local products. A state may bar "harmful" products from another state, such as excluding cattle with disease that could infect in-state herds.

However, barring non-health-threatening out-of-state products based on their origin is prohibited.

For example, the Court invalidated New york's prohibition of the sale of milk purchased from farmers in other states at lower prices than the New york minimum price.

A second category of cases involves states "fencing in" valuable local resources. Among the laws in this category that have been struck down are laws prohibiting a privately owned hydroelectric power located in the state from exporting power to other states, prohibiting exportation of certain fish caught in the state, prohibiting exportation of ground water to adjoining states that grant no reciprocal water rights and prohibiting giving licenses to milk processing facilities that would divert local milk processing facilities that would divert local milk supplies to other states.

Also included in this category are laws fencing out unattractive out-of-state items, such as garbage and other wastes, in order to preserve the state's landfill space to handle its own wastes.

Thus, in Philadelphia v. New Jersey, the Court struck down New Jersey's prohibition on private handfills taking in out-of-state waste.

Except for the waste's out-of-state origin, it was no different from New Jersey waste.