Also known as:reasonable non-discriminatory alternatives · reasonable nondiscriminatory alternative · reasonable non-discriminatory alternative · RNDAs · nondiscriminatory alternatives
Written by attorneys · grounded in primary & secondary sources — see below
A doctrinal requirement in dormant commerce clause review that a state must demonstrate the unavailability of less discriminatory means to achieve a legitimate non-economic local interest before a facially discriminatory law can survive scrutiny.
Sources & Authorities
How it applies
Common Examples
6
Baitfish Import Ban Upheld
State officials enacted a total ban on out-of-state live baitfish after studies showed repeated invasions by nonnative species that harmed native fisheries. Ryan Roberts, an out-of-state supplier, proposed mandatory sterilization and quarantine protocols already used successfully in adjacent states. The state produced evidence that those protocols routinely failed to detect parasites and rendered the bait commercially useless. Because no workable nondiscriminatory alternative existed, the ban survived review.
Waste Flow Control Sustained
A county created a public solid-waste authority and required all local haulers to deliver construction debris exclusively to its facility. Ruby Rivera, an out-of-state recycler, argued that private landfills in neighboring states could handle the waste at lower cost. The authority showed that directing waste to its own plant served public health and environmental goals without favoring private in-state competitors. The measure was upheld because no reasonable nondiscriminatory alternative achieved the same public function.
Select any source to read its text and confirm it supports the definition.
Cases
Casebooks
Hornbooks
United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority550 U.S. 330 (2007)
Milk Pasteurization Ordinance Struck
Madison required all milk sold in the city to be processed within five miles of the courthouse. Ravi Reddy, an Illinois dairy, offered to submit to on-site inspections and pay the actual cost of state verification. City officials rejected the proposal without explanation even though the same inspection method already applied to local plants. The ordinance fell because reasonable nondiscriminatory alternatives were plainly available.
Dean Milk Co. v. City of Madison, Wisconsin340 U.S. 349, 71 S. Ct. 295, 95 L. Ed. 329 (1951)
Tolling Statute Invalidated
Ohio extended the statute of limitations indefinitely for out-of-state corporations that had not appointed an agent for service. Ralph Richardson, a Michigan supplier sued in Ohio, showed that the state could have used its long-arm statute or mail service to reach the same defendants. The tolling rule was struck because those nondiscriminatory procedures would have preserved claims without discriminating against out-of-state firms.
Bendix Autolite Corp. v. Midwesco Enterprises, Inc.486 U.S. 888 (1988)
Minnow Export Ban Reversed
Oklahoma prohibited the export of natural minnows caught in state waters to protect local bait dealers. Rosa Ruiz, an out-of-state wholesaler, demonstrated that a simple licensing and reporting system used in neighboring states would prevent overharvesting. State officials offered no evidence that the licensing approach would fail. The export ban was invalidated for lack of any reasonable nondiscriminatory alternative.
Hughes v. Oklahoma441 U.S. 222 (1979)
Resident Hiring Preference Upheld
Boston required that at least half the workers on city-funded construction projects be Boston residents. Renee Rogers, an out-of-state contractor, proposed a neutral apprenticeship program open to all applicants. The city showed that the residency rule directly advanced its interest in reducing local unemployment without workable nondiscriminatory substitutes. The preference survived because no reasonable alternative achieved the same public-employment objective.
White v. Massachusetts Council of Construction Employers, Inc.460 U.S. 204, 103 S.Ct. 1042, 75 L.Ed.2d 1 (1983)
Common questions
Frequently Asked
3
How does a court decide whether reasonable nondiscriminatory alternatives exist?+
A court examines whether the state considered or could adopt measures such as inspection, certification, or uniform standards that would achieve the asserted non-economic interest without discriminating against out-of-state commerce. Evidence that the state already uses such measures for in-state actors or that other jurisdictions have succeeded with them weighs heavily against the discriminatory law.
Supporting sources
Does the state bear the burden of proving no reasonable nondiscriminatory alternatives exist?+
Yes. Once a plaintiff shows facial discrimination, the state must affirmatively demonstrate both a legitimate non-economic local interest and the absence of any reasonable nondiscriminatory alternative that would adequately protect that interest.
Supporting sources
Can a state satisfy the test simply by asserting that alternatives have not yet been proven effective?+
No. The state must present concrete evidence that proposed alternatives would fail to achieve the interest. Legislative recitals alone are insufficient when the record shows that inspection, certification, or other neutral measures have worked elsewhere or for local actors.
Supporting sources
340 U.S. 349, 71 S. Ct. 295, 95 L. Ed. 329 (1951)Constitutional Law
…This it cannot do, even in the exercise of its unquestioned power to protect the health and safety of its people, if reasonable nondiscriminatory alternatives, adequate to conserve legitimate local interests, are available. Cf. Baldwin v. G. A. F. Seelig, Inc. , supra , at 524; Minnesota v. Barber , 136 U. S. 313, 328 (1890). A different view,…