dissenting:
The majority opinion holds that the plaintiff, Archer Daniels Midland Company (Archer Daniels), has not met its burden of proving that the General Assembly’s capacity restrictions on producers whose fuel-grade alcohol is eligible for the nickel tax break were intended to effectuate discrimination against out-of-state producers. It determines that the limitations the statute imposes on interstate commerce are not clearly excessive, because it merely gives smaller alcohol producers a competitive advantage over larger plants. Since it holds that the plaintiff has not demonstrated that the statute has the effect of discriminating against interstate commerce, it does not consider the availability of less burdensome alternatives. Because I disagree with each of these conclusions, I respectfully dissent.
I.
In 1978, the General Assembly adopted the nickel tax break for gasohol containing alcohol “manufactured in Colorado.” Ch. 118, sec. 1, section 39-27-102, 1978 Colo. Sess.Laws 516, 517. There were no Colorado producers of fuel-grade alcohol at that time. No legislative declaration was included in that statute. A bill on a closely-related subject enacted four months later, however, did contain such a declaration. In ch. 100, sec. 1, section 35-39-101, 1978 Colo.Sess.Laws 461, where the General As*189sembly established a gasohol promotion committee, the following purposes were articulated:
The general assembly hereby declares that the production and use of alcohol-gasoline motor fuel and alcohol-related industrial hydrocarbons derived from Colorado agricultural products and forest products will benefit the people of the state through reduced air pollution, decreased dependence on foreign oil production, and increased markets for Colorado agricultural products and forest products. In enacting this article, the general assembly intends to promote the production and use of alcohol and related industrial hydrocarbons derived from Colorado agricultural products and forest products, foster the development and utilization of such alcohol and related industrial hydrocarbons, and promote the use of such alcohol and hydrocarbons by the general public.
(Emphasis added.)
Archer Daniels filed its original complaint challenging the 1978 version of the nickel tax break on March 19, 1981. On February 12, 1982, the Supreme Court of Minnesota struck down a law limiting a four cent gasohol tax break to gasohol produced with “alcohol distilled in this state from agricultural products produced in this state _” Archer Daniels Midland Co. v. State, 315 N.W.2d 597, 598 (Minn.1982). As the trial court in the present case noted, where state legislation effects simple economic protectionism, a virtually per se rule of invalidity is applied. Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978). “Applying the same test to Defendants^] tax provision prior to the 1982 Amendment at issue before this court,” said the trial court, “it could be assumed that the statutory provision, conditioned solely on plant location in Colorado, would have been invalidated on the same grounds.”
At the same time as this litigation arose, a market was developing for alcohol derived from Colorado agricultural and forest products, as intended by the General Assembly. The first gas station in Colorado offering gasohol opened in May 1979. In 1980, four million gallons of gasohol were sold in Colorado. One hundred percent of the fuel-grade alcohol for 1980 gasohol was supplied from out of state. Archer Daniels supplied approximately 85 percent of this. The situation changed dramatically after July 1981, when the first fuel-grade alcohol qualifying for the nickel tax break was produced. By March 1982 there were eight small Colorado plants, each with a capacity of less than 3 million gallons of alcohol, producing fuel-grade alcohol for the gasohol market. Archer Daniels’ Colorado sales dropped precipitously. Although in 1981 more than twice as much gasohol was sold in Colorado as in 1980, Archer Daniels’ sales in 1981 dropped from 210,958 gallons before July to 20,301 gallons — one sale— after July. Archer Daniels made one more sale of approximately the same magnitude in early 1982.
The situation facing the legislature in early 1982 was as follows: Colorado fuel-grade alcohol production capacity was rising from zero in 1980 toward a level equal to all of Colorado’s consumption of gasohol.1 In addition to the eight operating fuel-grade alcohol plants, eleven more were planned, under construction, or operational but not producing. Each of the eleven had an annual production capacity of three million gallons or less, except one with a *190planned capacity of 17 million gallons.2 Full production at these plants would yield a five-fold increase in Colorado fuel-grade alcohol capacity. Out-of-state fuel-grade alcohol not eligible for the nickel tax break had captured 100 percent of the Colorado market in 1980, but by early 1982 its market share was substantially less. Archer Daniels’ share of the market dropped from 85 percent in 1980 to a minuscule proportion by early 1982.
Although the nickel tax break had indeed created increased markets for Colorado agricultural products in accordance with express legislative intent, creating capacity sufficient to meet foreseeable needs, the Minnesota Supreme Court decision in Archer Daniels Midland Co. v. State represented a thrdát to the subsidy that this new Colorado industry enjoyed. This present lawsuit was pending in Colorado to invalidate the nickel tax break on the same constitutional grounds that had proved meritorious in the Minnesota case. The General Assembly considered legislation to modify the nickel tax break in early 1982.
House Bill 1188, introduced on February 4, 1982, would have limited the nickel tax break to gasoline blended with fuel-grade alcohol manufactured by facilities producing 3 million gallons of alcohol or less per year, eliminating the express condition that the alcohol be manufactured in Colorado. This new criterion would have allowed all eight operating Colorado fuel-grade alcohol plants to continue to enjoy the nickel" tax break. Since Archer Daniels’ smallest plant had a capacity of 52 million gallons per year, it would have excluded the 75 percent of nationwide sales represented by Archer Daniels, plus the sales of at least four other large out-of-state suppliers, from the subsidy enjoyed by every Colorado producer.3
The committee hearings on House Bill 1188 are replete with expressions of a protectionist purpose behind the bill. Representative Younglund, who introduced the bill, stated that, “[t]he point is that the big ones — the ones that are going to be sending alcohol into the state of Colorado, they’re not going to be many of them that’s only producing three million interested in bringing alcohol in to the state of. Colorado.” Senator Yost observed that,
[d]ue to the recent Supreme Court lawsuit that has been challenged by ADM which is a large producer of alcohol back East, that it is probably going to be ruled in favor that we cannot discriminate against alcohol that is produced in Colorado [sic] as opposed to alcohol that is produced in other states. I think with the 3-million gallon limitation in there, that we more squarely address those plants in Colorado that would be producing the alcohol as opposed to the large conglomerates that may reside other than in the U.S.
In response to a question by Senator Yost, Representative Younglund, appearing before the Senate Committee, testified that “there are no plants in Colorado at this time, or look like they will be on line very soon that produce more than 3 million gallons.” Younglund later said, “we’re after the ones outside of state to find a way that a producer of 150 million gallons of alcohol doesn’t come in here and get our incentive, it’s an incentive for Colorado-produced alcohol — for the benefit of this state.”
Senator Meiklejohn observed, “I see what you’re trying to accomplish — encourage the use of gasohol, the other is encourage Colorado industry.” When one witness testified in favor of eliminating the capacity restriction in order to allow the construction of large-scale plants, Meikle-john noted, “[yjou’re also allowing for that alcohol to be imported into the state.” As he viewed the measure, “we’re trying to encourage the building of these facilities through incentives and further the alcohol *191industry in the state of Colorado .... ” “One of the goals of the bill is to use Colorado grain in alcohol .... ”
The Senate Committee heard the testimony of the vice president of a company planning the construction of a Colorado fuel-grade alcohol plant with a capacity of 17 million gallons per year — 14 million gallons more than any other existing or planned Colorado plant. He testified that plants producing between ten million gallons and fifty million gallons per year are far more efficient than smaller plants. Senator Powers argued that the nickel tax break should be extended to this company:
If someone is willing to put money into building these plants, which are going to consume and make a better market for Colorado grain, and also produce alcohol from Colorado grain here in Colorado, I don’t think we should put any disincentive, I don’t care how insignificant — into discouraging this guy ....
During the hearing the Senate amended the bill and the House acceded to the change. The final version extended the nickel tax break to “blended gasoline which is produced from no more than three million gallons of alcohol annually from each facility having a design production capacity of seventeen million gallons or less per year .... ” Thus, the General Assembly preserved the nickel tax break for every current and prospective fuel-grade alcohol producer in Colorado, while continuing to avoid subsidization of the overwhelming majority of fuel-grade alcohol production capacity outside this state.
II.
Article I, section 8, clause 3 of the United States Constitution vests in Congress the power to regulate commerce among the several states. In the absence of action by Congress, the courts have interpreted the Commerce Clause as a limitation on “the power of the States to erect barriers against interstate trade.” Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 35, 100 S.Ct. 2009, 2015, 64 L.Ed.2d 702 (1980); see Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 13 L.Ed. 996 (1851). Where a state law explicitly discriminates against interstate commerce, courts apply a virtually per se rule of invalidity. Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978); see Matthews v. Department of Revenue, 193 Colo. 44, 562 P.2d 415 (1977); Archer Daniels Midland Co. v. State, 315 N.W.2d 597 (Minn.1982).
Here, however, the General Assembly has enacted a facially-neutral provision. When the purpose and effect of a facially-neutral law are discriminatory, or even when the effect alone is discriminatory, the burden falls on the state to justify the discrimination in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 350-53, 97 S.Ct. 2434, 2445-47, 53 L.Ed.2d 383 (1977). Where a law regulates evenhandedly to effectuate a legitimate local public purpose, and its effects on interstate commerce are only incidental, the burden shifts and the law will be upheld unless the burden imposed is clearly excessive in relation to the local benefits, depending again on the nature of the local interest and whether it could be promoted as well with a lesser impact on interstate activities. Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970).4 Thus, the constitutionality of this facially-neutral statute depends on its purpose, its effect, the putative local benefits it confers, and the existence of less restrictive alternatives.
The Attorney General enumerates an extensive array of possible purposes for the capacity limitation: to promote the use of *192gasohol in Colorado, to provide incentives for development of a fuel-grade alcohol industry in Colorado, to provide benefits to Colorado farming communities in the form of employment and new markets for surplus agricultural products, to provide for increased sources of alcohol, to reduce air pollution, to decrease dependence on foreign oil, and to promote competition in the fuel-grade alcohol industry. A number of these have nothing whatsoever to do with the reduction in the availability of the nickel tax break brought about by the capacity limitation, and those that are not discriminatory are more properly characterized as effects rather than purposes.
One need not look beyond the legislative declaration for the gasohol promotion committee and the hearings on House Bill 1188 to see that the capacity restriction was imposed “because of the ADM lawsuit” to retain “an incentive for Colorado — produced alcohol — for the benefit of this state.” As I read the record, this is one of those “rare instance[s] where a state artlessly discloses an avowed purpose to discriminate against interstate goods.” Dean Milk Co. v. City of Madison, 340 U.S. 349, 354, 71 S.Ct. 295, 298, 95 L.Ed. 329 (1951). This law “was unquestionably conceived, cut, tailored and amended to accomplish a particular purpose[,]” i.e., to exclude every out-of-state, large-scale, efficient producer of fuel-grade alcohol from the benefits of the nickel tax break while preserving those benefits for every Colorado producer, and the “thin veneer of language used to ‘get around’ the constitutional prohibition, and to give the measure a mask of general application, falls from the face of the bill” when the legislative history is considered. In re Senate Bill No. 95, 146 Colo. 233, 239, 361 P.2d 350, 354 (1961). “The commerce clause forbids discrimination, whether forthright or ingenious.” Best & Co. v. Maxwell, 311 U.S. 454, 455, 61 S.Ct. 334, 335, 85 L.Ed. 275 (1940). “What is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation. Formulas and catchwords are subordinate to this overmastering requirement.” Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 527, 55 S.Ct. 497, 502, 79 L.Ed. 1032 (1935). I would conclude that the capacity limitation was animated by an unconstitutionally discriminatory purpose.
With regard to the effect of the capacity limitation, “[i]f the effect of a state regulation is to cause local goods to constitute a larger share, and goods with an out-of-state source to constitute a smaller share, of the total sales in the market ... the regulation may have a discriminatory effect on interstate commerce.” Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 126 n. 16, 98 S.Ct. 2207, 2214 n. 16, 57 L.Ed.2d 91 (1978). Under the capacity limitation, every Colorado producer of fuel-grade alcohol continued to enjoy the nickel tax break it had benefited from under the earlier, patently discriminatory law. Every producer excluded by the capacity restriction was an out-of-state producer, and these producers comprise somewhere in excess of three-quarters of the national market for fuel-grade alcohol, the proportion represented by Archer Daniels alone. A succinct characterization of the effect of the capacity limitation provision was provided in the record by an employee of a gasohol distributor, who said, “[t]he prior statute basically did the same thing. It allowed the 5 cent tax break on in-state alcohol.... [MJost of the competition was eliminated by the statute both prior and after.”
Since I would hold that the capacity limitation was discriminatory in both purpose and effect, it follows from Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 350-53, 97 S.Ct. 2434, 2445-47, 53 L.Ed.2d 383 (1977), that the burden is on the state to justify it in terms of local benefits and the unavailability of nondiscriminatory alternatives. Although the Attorney General refers to many possible purposes underlying the capacity restriction, the primary local benefit said to accrue is a reorientation of production away from industrial complexes to rural communities. The Attorney General’s brief states:
*193Dramatic price increases in gasoline led farmers to look to alternative fuel sources. Alcohol is appealing because it is produced from agricultural commodities and alcohol plants are suitable to rural communities where feedstock is available for production. Establishment of plants in rural communities creates an alternative fuel source and also creates new jobs in those communities to help stem the loss of population typical of rural communities.... Colorado plants uniformly have been built or planned for rural communities outside of the established metropolitan areas of the state....
Large capacity alcohol plants, such as those operated by Archer Daniels, are not feasible to build in rural Colorado communities.
This analysis of benefits, which finds expression in the record only in Senator Noble’s statement that “I kind of want to keep some of those farmers out there in those fields cause I’d kind of like to have something to eat as we go down the road” and in the testimony of three witnesses involved in gasohol production and distribution, stands in stark contrast to the avowedly discriminatory view of benefits pervading the legislative history and apparent from the record. A fuel-grade alcohol trader testified that small-scale Colorado plants could satisfy their demand for feedstock locally, i.e., in Colorado, and would find it advantageous to do so because of the high cost of transporting feedstock. She had never ordered small-plant, fuel-grade alcohol from more than 419 miles away without a backhaul, and 564 miles away with a backhaul. A gasohol distributor testified that transportation costs had deterred him from ordering fuel-grade alcohol from small-scale out-of-state plants. The legislative hearings revealed that planned Colorado fuel-grade alcohol capacity would grow rapidly. There was testimony that Archer Daniels’ transportation costs for shipments to Colorado from the Midwest were more than twice as high as the transportation costs of the local producers.5 The picture that emerges from this evidence is a fuel-grade alcohol industry, which, by means of subsidy to small local plants, converts Colorado feedstock to fuel-grade alcohol in Colorado facilities in sufficient quantity to satisfy the Colorado demand for gasohol. Hence the subsidization of small-scale plants in rural Colorado communities inevitably burdens interstate commerce. In line with Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), and Boston Stock Exchange v. State Tax Commission, 429 U.S. 318, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977), I would hold that the state has not justified this discrimination in terms of local benefits.
It should also be noted that Archer Daniels has listed what may be less restrictive alternatives to achieve the same benefits, including extension of the property tax relief for gasohol plants already conferred by § 39-1-104(13) & (14), 16B C.R.S. (1982), and state industrial revenue bonds. The record discloses that industrial revenue bonds would have provided the funding for at least one proposed fuel-grade alcohol plant.
The majority notes that if restrictions on the nickel tax break were eliminated, that would give rise “to the possibility of a significant loss of revenue to the Highway Users Tax Fund unless application of the tax break was limited in some other manner.” Taking the reduction in revenue losses as a local benefit conferred by the capacity limitation, it is apparent that many less restrictive alternatives would have achieved the same end. These include reduction in the amount of the tax break per gasohol gallon, a ceiling on the total *194amount of the tax break with benefits to be allocated on a first-come first-served basis or through nondiscriminatory quotas or by some other means, and curtailment of other subsidies and government sales guaranteed to gasohol, to suggest only a few. Here again, I would conclude that the state has failed to justify the capacity restriction in terms of local benefits and the absence of less restrictive alternatives.
In conclusion, I would hold that the capacity provision in question is discriminatory in both purpose and effect, and the state has failed to justify it in terms of local benefits flowing from the statute and the absence of less restrictive alternatives. Therefore I would reverse the judgment of the district court holding this law to be consistent with the Commerce Clause.
ERICKSON, C.J., and NEIGHBORS, J., join in this dissent.
. The record contains several indications of this. Production in March 1982 was placed at 2.8 million gallons a year. The capacity of the eight operating plants was just under five million gallons a year. Agland, a rural cooperative and a major marketer of gasohol, stated in September 1982 that all of the fuel-grade alcohol that it had purchased since mid-1981 had been produced in Colorado. The director of purchasing for the state of Colorado indicated that Colorado producers supplied thirty percent of state gasohol purchases for which bids were taken in the fall-of 1981. A Colorado fuel-grade alcohol trader reported that approximately thirty percent of her purchases between May 1982 and November 1982 were from Colorado sources.
. Testimony indicated that this plant would primarily use Colorado feedstock, but market part of its product to neighboring states.
. The fuel-grade alcohol trader testified that there were approximately 60 small-scale out-of-state suppliers who satisfied the new criterion as of late 1982.
. The majority invokes the Colorado doctrine that acts of the General Assembly are presumed constitutional unless proven otherwise beyond a reasonable doubt. However, this formula has never, to my knowledge, been applied by the United States Supreme Court in a Commerce Clause case. It is inconsistent with the burdens of proof set forth in Hunt and Pike. Therefore, I would not apply it to the present case.
. The vice president of the company planning the 17 million gallon Colorado fuel-grade alcohol plant reported on government studies showing that plants of capacity up to 50 million gallons, i.e., the size of Archer Daniels' plants then in operation, enjoy increasing economies of scale, which might allow Archer Daniels to overcome higher transportation costs. Two other witnesses confirmed the existence of economies of scale in the manufacture of fuel-grade alcohol.