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CWM CHEM. SERVS. v. ROTH

6 N.Y.3d 410 (2006)

846 N.E.2d 448

813 N.Y.S.2d 18

CWM CHEMICAL SERVICES, L.L.C., Appellant, v. ARTHUR J. ROTH, as Commissioner of New York State Department of Taxation and Finance, et al., Respondents.

Court of Appeals of the State of New York.

Decided March 23, 2006.

Attorney(s) appearing for the Case

Kirkpatrick & Lockhart Nicholson Graham, LLP, Boston, Massachusetts (Roger C. Zehntner and Charles J. Dyer of counsel), and Buchanan Ingersoll PC, Buffalo (Patrick J. Maxwell of counsel), for appellant.

Eliot Spitzer, Attorney General, Albany (Andrew D. Bing, Caitlin J. Halligan, Daniel Smirlock and Peter H. Schiff of counsel), for respondents.

Bond, Schoeneck & King, PLLC, Syracuse (Barry R. Kogut and Kathleen M. Bennett of counsel), for General Motors Corporation, amicus curiae.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO and R.S. SMITH concur.

OPINION OF THE COURT

READ, J.

The courts below held, and the State does not contest, that State Superfund's disposal tax, a part of the statutory financing scheme for the cleanup of inactive hazardous waste disposal sites in New York State, unlawfully discriminates against interstate commerce and thus violates the Commerce Clause of the United States Constitution. We are asked on this appeal how to cure the constitutional infirmity while remaining true to...

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