us supreme court: 05-1345

8/14/2019 US Supreme Court: 05-1345

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Official - Subject to Final Review

IN THE SUPREME COURT OF THE UNITED STATES

- - - - - - - - - - - - - - - - - x

UNITED HAULERS :

ASSOCIATION, INC., ET AL., :

Petitioners :

v. : No. 05-1345

ONEIDA-HERKIMER SOLID :

WASTE MANAGEMENT :

AUTHORITY, ET AL. :

- - - - - - - - - - - - - - - - - x

Washington, D.C.

January 8, 2006

The above-entitled matter came on for oral

argument before the Supreme Court of the United States

at 11:10 a.m.

APPEARANCES:

EVAN TAGER, ESQ., Washington, D.C.; on behalf of

Petitioners.

MICHAEL J. CAHILL, ESQ., Holbrook, N.Y.; on behalf of

Respondents.

CAITLIN J. HALLIGAN, ESQ., Solicitor General, New York,

N.Y.; on behalf of New York, as amicus curiae,

supporting Respondents.

1Alderson Reporting Company



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C O N T E N T S

ORAL ARGUMENT OF PAGE

EVAN TAGER, ESQ.

On behalf of the Petitioners 3

ORAL ARGUMENT OF

MICHAEL J. CAHILL, ESQ.

On behalf of the Respondents 26

ORAL ARGUMENT OF

CAITLIN J. HALLIGAN, ESQ.

On behalf of New York, as amicus

curiae, supporting Respondents 42

REBUTTAL ARGUMENT OF

EVAN TAGER, ESQ.

On behalf of Petitioners 53




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P R O C E E D I N G S

(11:10 a.m.)

CHIEF JUSTICE ROBERTS: We'll hear argument

next in United Haulers Association versus

Oneida-Herkimer Solid Waste Management Authority.

Mr. Tager.

ORAL ARGUMENT OF EVAN TAGER

ON BEHALF OF THE PETITIONERS

MR. TAGER: Thank you, Mr. Chief Justice,

and may it please the Court:

The barriers to interstate commerce imposed

by the flow control ordinances in this case are even

more severe than those resulting from the ordinance this

Court struck down in Carbone. As in Carbone, no local

waste can leave the counties for processing. In

addition, now that Respondent's landfill is up and

running no local waste can leave the counties for

disposal either. The issue here is whether Carbone is

inapplicable to this outright embargo merely because

Respondent's own the facilities to which the haulers are

required to bring the waste. The answer is no, and the

reason is that the concerns underlying the Commerce

Clause are implicated whether interstate commerce was

being obstructed for the benefit of a public enterprise

or a private one.




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The whole point of the Commerce Clause was

to promote the national economy and to put an end to

parochial barriers to interstate trade. This Court has

consistently held that embargoes, local processing

requirements, and other barriers to interstate commerce

violate the Commerce Clause because such laws inevitably

prompt resentment, retaliation, and ultimately --

JUSTICE BREYER: I guess in many thousands

of municipalities throughout the United States it's

fairly common to have a locally owned electricity

distribution company, or an electrically -- or a gas

distribution company. And I thought it was fairly

common for a municipally owned pipeline, gas pipeline,

or electricity distribution to say, if you live in our

town you've got to buy from us; you've got to buy from

the local community. And I guess that's been going on

for about 110 years.

And yet I've never seen anybody think or

write or anything that that violated the Commerce

Clause. But of course, there could be somebody in

another State who'd like to sell electricity to the

people in our town. They can't do it because the town

says, we own the company and you got to buy from us.

Now, if we agree with you are we saying that

all those gas companies, distribution companies, et




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cetera, are behaving unconstitutionally?

MR. TAGER: The first point of clarification

on that is the question -- the question is does strict

scrutiny apply.

JUSTICE BREYER: No, I'm not interested in

tests. I'm interested in just the outcome. I just

raise the question.

MR. TAGER: Yes. I am not, I am not sure

that it's correct that in all of those municipalities

you hypothesize that they are actually pairing their

provision of local --

JUSTICE BREYER: Well, I used to teach the

subject and I can't say you're wrong. But I knew that

it was a fairly common thing to have a certification

that gave you a -- as a company, it would give them a

local area in which they had an exclusive monopoly. And

that was common and it was called a service area, and in

the local town, the service area, I never even heard of

a company trying to come in and sell from abroad,

because I thought that this certificate gave them an

exclusive right to provide the local electricity service

or the natural gas service. I mean, it's a fairly

obvious thing. And I might be wrong and I mention that

my memory -- I've never focused directly on it. Just

everybody I read and everything I read, I assumed the




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constitutionality of this. But of course, memory is

fallible, including mine. Therefore, I raise the

question.

MR. TAGER: Well, if the utility is -- if

the utility is privately owned --

JUSTICE BREYER: No, no. I'm not talking

about that because I guess that would be trying to

attack Carbone. Far be it from me.

But I know at least there are these things

called municipal gas utilities and municipal electricity

companies; and during the New Deal that was thought to

be quite a good thing, and that's years ago. In all

that time when people were attacking New Deal agencies,

I've never seen an attack based on this ground.

MR. TAGER: Well, I think that the same

logic would apply as in --

JUSTICE BREYER: Yeah, I think it would.

The same logic would apply.

MR. TAGER: And it would apply to all of the

cases this Court has ever held. In every single case

involving an embargo or a local processing requirement

or a local needs requirement, if you just substitute "in

public ownership" you'd have the exact same case --

JUSTICE BREYER: Well, the fact is there is

a difference between public ownership and giving an




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exclusive franchise to a public company. And the public

ownership means that the people of the State have

decided to have their own little nationalized industry,

which again people don't like, many. But I never knew

there was anything in the Constitution that forbid it.

MR. TAGER: Well, I think that the whole

point of the Commerce Clause was to stop these kind of

JUSTICE BREYER: Nationalized industries?

MR. TAGER: Well, to stop the idea that

everything can be localized.

CHIEF JUSTICE ROBERTS: Well, but you don't

even have to get into the theory. What happens in a lot

of municipalities of course is that they decide, well,

we're going to run the waste treatment facility and

we're going to tax the people in the municipality to

support it and the service is going to be free. Now, is

that a violation of the Commerce Clause?

MR. TAGER: If they're only providing it for

free and not barring you --

CHIEF JUSTICE ROBERTS: Yes.

MR. TAGER: -- from engaging in interstate

commerce, in the event, for example, that you found

there to be some additional benefit from engaging in an

interstate transaction, I think we would have -- the




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Commerce Clause would be implicated. But as a practical

matter, they would be able to accomplish much the same

thing because most people would take the free service.

JUSTICE SCALIA: Well, I don't understand.

You know, as far as the impact on out of State

competitors are concerned, it's exactly the same. The

State or the municipality runs its own waste disposal

facility. There is no charge for dumping the waste

there. The cost of it is entirely covered by taxes.

Okay.

Now, the people you're representing, out of

state people who would provide dumping grounds for this

waste, they would charge 9 dollars a ton or whatever

they would charge. It would be more than what the

municipality is charging.

Now, why isn't that a restraint on

interstate commerce, discrimination against interstate

commerce?

MR. TAGER: Well, it's market participation

if all they're doing is public collection and bringing

it --

JUSTICE SCALIA: Oh, I'm sorry. You have to

dump your waste in the municipal garbage dump.

MR. TAGER: If you parrot the Flow Control

ordinance I think it's exactly the same.




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JUSTICE SCALIA: Okay, so that's fair. Even

if they support it entirely by taxes?

MR. TAGER: Yes.

JUSTICE SCALIA: So that they're not

competing in the marketplace in any way, they're not

getting any money from the people who are dumping

garbage. They get money from the whole tax base.

MR. TAGER: The impact on the interstate

market is the same, and I think that --

JUSTICE SCALIA: Oh, it is indeed.

MR. TAGER: -- the Court's Commerce

Clause --

JUSTICE SCALIA: I didn't think you'd be

willing to go that far, but you'd say that that violates

the Commerce Clause.

MR. TAGER: But I don't think I -- let me be

clear. We don't need to win that case in order to win

this case, because in this case --

JUSTICE KENNEDY: Well, I'm not so sure.

MR. TAGER: This case is almost on all fours

with Carbone. All you've done is transfer the

ownership. As you know, in Carbone that facility was

destined to be owned within less than 2 years from the

time the Court issued its opinion.

JUSTICE GINSBURG: But in the majority




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opinion, as opposed to the dissent, at least as I read

it, on almost every page it uses words like "local

operator," "local enterprise," "local proprietor,"

"local business," doesn't speak, as the dissent did,

about a municipal facility. It seems great care was

taken in the majority to not characterize that transfer

pledge as a municipal facility.

MR. TAGER: Well, two responses to that,

Justice Ginsburg. First, there were other references

where the opinion said "the town's facility." Indeed,

the Flow Control witness himself referred to it as the

town's facility.

And the other response is, to call someone a

proprietor doesn't mean that they're private. In this

case, they're charging $81 -- or $86 a ton. Every ton

that comes in, they make more money.

JUSTICE GINSBURG: I'm sorry. At least as I

read the Carbone opinion, it didn't deal with the

public-private distinction. It seemed to assume it was

a private entrepreneur. And it didn't take a position

one way or another whether there would be a distinction.

MR. TAGER: Well, I don't think the Court

affirmatively decided the issue. I think the

distinction didn't matter to the majority. I think the

majority is focusing on the consequences of putting up

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Alderson Reporting Company



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barriers to interstate commerce, of putting up embargoes

and local processing requirements. And you could take

almost any one of the Court's cases and just substitute

in public ownership. Take, for example --

JUSTICE GINSBURG: But not -- you know, you

have a whole string of commercial products, but you have

recognized, too, that garbage disposal has for long been

considered a municipal responsibility, a municipal

function.

And you also say that the total, the -- what

is it -- cradle to grave, if the county took over all of

the garbage disposal business, the hauling from the

garbage generator to the plant, and then there wouldn't

be any commerce problem, right? But if it does

something less, there is?

MR. TAGER: Well, there were two questions

embedded there. Let me see if I can take them in order.

The idea that it is a traditional local function, I

don't think can support any kind of meaningful test in

this case. The Court has rejected that very - that very

standard in Garcia and the Tenth Amendment cases, and

prior to that in the intergovernmental tax immunity

cases, and the reason it did so is it found that it was

unworkable to try to determine what is a traditional

government function in any particular case. The Court

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found that it was in a total line-drawing morass. And

so it said we're throwing that out.

JUSTICE BREYER: Well, there is still at

least the obvious distinction, that one of the main

purposes of the dormant Commerce Clause is to prevent

protectionism. Protectionism is when a state favors its

own producers. And you could see, indeed a big argument

in Carbone was, you aren't favoring your own producer;

well, we are at least favoring one. But now where the

municipality is running it itself, no one is favored.

So I don't think it was an object of the

Commerce Clause to prevent a State from favoring its own

government.

MR. TAGER: I don't know whether the framers

considered it but I do know --

JUSTICE BREYER: Well, it's about --

MR. TAGER: -- protectionism wasn't the only

thing that they were concerned about.

JUSTICE BREYER: Well, is there something

here that is not protection? Because Carbone was still

perhaps viewing it most favorably, an extreme case of

protection, only one individual was protected.

MR. TAGER: No. First of all, what was

being protected was this plan. The town had to fund its

transfer station, a transfer station that it was going

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to take possession of less than two years after this

Court decided the case.

So the protectionism that was going on there

was really protection of their investment in their

scheme.

JUSTICE SOUTER: But it was also

protectionism -- I mean, I didn't agree with this at the

time, but I mean there, it -- you have to admit that

there was protectionism of the one licensee, the person

who constructed the plant and was going to sell it to

the town for a dollar. That, so far as we know, that

person or that company was in it for the money.

And so for the period of the five years

prior to the transfer to the town for the dollar, that

particular entity was being protected so it could make

money, and therefore, make it worthwhile for that

company to sell its, its real estate to the town for a

dollar. Surely that entity was being protected

handsomely.

MR. TAGER: But it would be equally

protected, Your Honor, if the government owned the

facility but said you keep all the tipping fees until

it's paid off and take a nice profit on top, too.

This distinction --

JUSTICE SOUTER: Well, that's -- that's a

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third case but that's not the question we have here, is

it?

MR. TAGER: Well, the case you have here is

are you going to adopt a new formalistic particular

distinction between public and private ownership, when

in the past this Court has concluded that a lot of these

other distinctions were unworkable.

CHIEF JUSTICE ROBERTS: Well, so, you say

formalistic as if it's a bad thing. But the, the

distinction, say in the First Amendment, if the private

contractor the day before the municipality bought the

facility for a dollar had fired an employee because of

his or her political views, you wouldn't argue that that

is state action just because the next day it was going

to be controlled by the public entity. And yet the next

day, that type of action would be subject to First

Amendment scrutiny. It may be a formalistic distinction

but in many areas of the law it makes all the

difference.

MR. TAGER: Well, I just think you are going

to be walking into so many line-drawing problems because

if that example is one, are you going to require 100

percent public ownership, or a majority interest, 50-50?

Once you go down this road, I think it is just opening

up a huge can of worms when the focus ought to be what

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is the impact on interstate commerce? What we have here

now that the landfill is up and running is an absolute

embargo. No waste generated in this town, in these

counties, excuse me, can leave the State, period, end of

story.

It is no different, in effect, it is no less

likely to breed resentment and retaliation than --

CHIEF JUSTICE ROBERTS: It is kind of

formalistic on the other side because you, I thought you

agreed that if the municipality did it through tax

revenues and there was no formal flow restriction and

yet it only made sense to dump your waste at the free

facility, you seem to suggest that would be okay.

MR. TAGER: Well, I'm glad you reminded me

of that point. I meant to make it earlier. In West

Lynn Creamery this Court said that these kind of things

make a difference. There are certain ways you do things

and certain ways you can't do things. If you place an

embargo, that's traditionally been regarded as subject

to strict scrutiny. If you try to do the same thing by

making it free and providing public -- public -- public

collection, that's okay.

And -- and what the Court cases say is do it

the right way and we'll worry about the consequences

later.

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JUSTICE BREYER: Here, I take it the reason

they want to do this is because they wanted their

municipal facility to charge a higher price for the

non-recyclable rubbish and that will encourage people to

segregate the rubbish and thereby have more cyclable --

recyclable rubbish, and therefore overall pay less.

And that's why they want to do it, and of

course that's not going to work. If somebody comes in

from out of State and charges a lower price for all of

the non-recyclable rubbish or you know, for all rubbish,

it just won't work. It is rather like electricity,

interestingly enough, where municipalities would do the

same thing. They want discriminatory rates in order to

push out the possibility of poorer people getting

electricity. This they want to do the same thing but

they want to do it for rubbish, for, to encourage

recycling.

MR. TAGER: Several answers to that,

Justice Breyer.

One, the same argument was made in Carbone.

It doesn't matter who owns the facility.

Two, this is an argument about why they

might survive strict scrutiny, it's not a -- I know you

don't like hearing about that -- but the question here

is do we apply strict scrutiny or not. And that goes to

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the strength of their interest. And then of course the

question turns on, can it be met in nondiscriminatory

ways? The answer is "very well." Since Carbone was

decided, the municipalities have been living with no

flow control, virtually every one in the country, yet

recycling has gone up in the, in that intervening

period.

Indeed the best way to accomplish recycling

is to charge volume-based fees to, to the -- between the

haulers and the, and the generators. That's not what is

going on here. They're just charging it at the disposal

point. So there are plenty of communities all -- excuse

me -- plenty of communities all over the country that

are charging what's known as a batch fee where you pay

for each -- you pay -- you get a label, like you put on

a bag; you can't dispose of the bag without the label,

the label costs a certain amount of money. None of

these people have flow -- none of these communities have

flow control but there's a direct straightforward way.

They can also impose regulations directly on

the generators and directly on the haulers to make sure

they're doing these things. So it is hardly a reason

for creating a brand-new public-private distinction.

JUSTICE SOUTER: It sounds to me as though,

if we accept your argument that, going back to

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Justice Breyer's first question, every municipal utility

in the United States is going to fall.

MR. TAGER: Well -- I'm not an expert on --

on that industry.

JUSTICE SOUTER: No, but you know, you know

that there are plenty of, of communities that don't have

municipal utilities and seem to get natural gas. They

seem to get electricity. The lights go on. And

therefore by parity of reasoning to what we have just

heard, there just wouldn't be the justification for,

let's say, embargoing the importation of electricity and

gas by private entities from outside.

So that if you win on this argument, no more

municipal lifelines.

MR. TAGER: I didn't hear the last part.

JUSTICE SOUTER: No more municipal

pipelines.

MR. TAGER: Well, I think they can have the

plant. They just -- assuming that is --

JUSTICE SOUTER: Well, they'd like to run

them as --

MR. TAGER: They'd like to have a monopoly,

and --

JUSTICE SOUTER: -- an exclusive monopoly,

and in that sense they won't, they won't be around

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anymore because the Commerce Clause will, will declare

them unconstitutional.

MR. TAGER: Well, but that's excluding that

-- as I understand it --

JUSTICE SCALIA: You would say that they can

do it so long as they charge less than out of State

people --

MR. TAGER: Yes.

JUSTICE SCALIA: -- and therefore people buy

their services because they're cheaper. So long as they

don't prohibit the importation, if they run the

municipal facility on tax revenues, and therefore charge

very little for the electricity or whatever they're

providing, that's perfectly okay for you. Right?

MR. TAGER: Absolutely.

JUSTICE SCALIA: So long as they don't

prohibit anybody from out of State.

MR. TAGER: Yes.

JUSTICE SOUTER: Then where does your

argument about formalism go? Isn't it a formalistic

distinction whether the utility does its financing

through or its collection through taxes, or through a

user fee?

You said, you said distinctions on -- I

thought you said distinctions like that were purely

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formalistic --

MR. TAGER: Well --

JUSTICE SOUTER: -- for purposes of the

Commerce Clause, and therefore the distinction I suppose

wouldn't count.

MR. TAGER: Well, I think what I was talking

about, the public-private distinction, it is different

in kind from saying there are certain kinds of conduct,

some kinds of Government conduct that are permissible

like a subsidy, for example, take your South-Central

Timber versus Wunnicke case. The Court said in that

opinion you can't impose contractually on the people who

buy the timber the obligation to process it in the

State; but what you can do is you can subsidize it, so

they can't want to do it. So this is something that has

JUSTICE SOUTER: There's some, then I guess

you are saying some formalistic distinctions, some

distinctions that don't make any difference economically

but are formalistically different are okay.

MR. TAGER: Well, I'm not sure that one is

completely formalistic. The Court said there, that

gives people a choice. They can still take it out of

the State if they want to, and they may have good reason

to.

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Going back to the trash argument, the trash

example, you could provide it for free; but a consumer

might say, you know what, I'd like to have more days of

pickup than you're providing me. Or I think their

trucks of this private company are a lot nicer; I'd

rather have a van stopping in front of my house than

your beaten up municipal truck. So a case like Wunnicke

establishes that that's the way it works. That it's

okay to have alternatives. What you can't have is

forcing people to do this through regulation.

JUSTICE KENNEDY: Well, I -- is there a

distinction between the question Justice Breyer put to

you, the hypothetical of a municipal electricity

company, and this case? In this case you have private

haulers, you have private waste dumps at the end, you

just have a public, a publicly owned and mandated

processing center in the middle.

It would be as if in the electric case you

have private electric companies that generate the power,

private electric companies that distribute the power,

but they all have to go through a Government-owned

transformer at the key. It seems that's the case you

have here.

MR. TAGER: Yes. That's why --

JUSTICE KENNEDY: But you don't make that,

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that's not the argument you make.

MR. TAGER: Well, I would --

JUSTICE KENNEDY: At least that's not the

way you answered Justice Breyer.

MR. TAGER: I like your answer better, Your

Honor.

(Laughter.)

MR. TAGER: But what, what I was trying to

get back to was --

JUSTICE BREYER: Like it --

JUSTICE KENNEDY: But, but then, but then

Justice Breyer is going to say well, you --

MR. TAGER: He'd changed the hypo.

JUSTICE KENNEDY: -- that you, that you can

bar it altogether but you can't regulate it just a

little bit --

MR. TAGER: You can --

JUSTICE KENNEDY: -- actually is greater

than the sum of it.

JUSTICE BREYER: I actually point out that

California, I think, wants to own the grid and privatize

the rest of it. And there are -- I mean, it --

Justice Kennedy is totally right. There are all kinds

of combinations and permutations. There, there could be

distributors who are in fact regulated private companies

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and local distributors who are owned by the city, and I

guess there, there is one generator, at least, company

that's owned by the -- that's a -- TV -- with TVA.

They, they make their own.

So there are all kinds of permutations and

combinations. And I think we're getting at, when we

take that aspect of the permutation and combination and

say that aspect of it which is owned by a Government

says: "Our way or the highway." You know, that's what

they say. "Buy from us." Period.

And if you're in a certain region, I've

always thought they could do that. And I have to admit

I never really looked it up; I've just never came across

a case that says to the contrary.

MR. TAGER: I, I haven't seen a case either

way. It's my, my way of seeing this case law is that

there's -- that the rule is simple: if you are doing

something to interfere with the free flow of interstate

commerce, you're subject to strict scrutiny. And maybe

in that situation, maybe it survives strict scrutiny. I

don't know that they would in this day and age, when

getting, getting gas or other kinds of power to a

commercial establishment, for example, is not very

difficult and would not necessarily tear up the

infrastructure, or whatever. I think they might --

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JUSTICE STEVENS: What I guess we really

don't know is whether Justice Breyer's parade of

horribles are cases in which the municipality was able

to provide the service more cheaply if it subsidized it,

in which case there's no burden on commerce, or were

they accompanied by prohibitions against competition, as

Justice Scalia pointed out. I don't know.

MR. TAGER: I think it's hypothetical.

JUSTICE KENNEDY: It's a quite different

assumption.

MR. TAGER: I think his hypothetical assumed

a ban. But I certainly agree with you, Justice Stevens,

that if they do it simply by competing, then that's

perfectly acceptable.

JUSTICE KENNEDY: Well, what is your

authority for the proposition that we use strict

scrutiny?

MR. TAGER: I draw it from the entire line

of cases, from the local processing cases, the embargo

cases, the local --

JUSTICE KENNEDY: Can you give me one case

of it being strict scrutiny?

MR. TAGER: For?

JUSTICE KENNEDY: I mean, I just didn't

realize that that phrase entered into our Commerce

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Clause jurisprudence. Correct me if I'm wrong.

MR. TAGER: Well, I was using it as a

synonym for the "virtually per se unconstitutional"

rule.

JUSTICE KENNEDY: That is to say, if it

discriminates?

MR. TAGER: If it discriminates, or some of

the earlier cases didn't use the term --

JUSTICE KENNEDY: But certainly on burden

cases we don't require that.

MR. TAGER: Well, not the burden that we

talk about in the price context. But in the earlier

cases they referred, cases like Minnesota versus Barber

and some of the other, earlier cases, refer to it as

being burdens on commerce, but clearly what they meant

was there are certain kinds of regulations, and I think

it's easier to just categorize them, embargoes, local

needs requirements, local processing requirements,

things likes that, which basically so obstruct

interstate commerce as to require the virtual per se

rule.

Indeed, Pike itself has that very statement.

That's sort of the classic case in which you invoke that

high level of scrutiny.

If the Court has no further questions, I'd

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like to reserve the balance of my time.

CHIEF JUSTICE ROBERTS: Thank you, counsel.

Mr. Cahill.

ORAL ARGUMENT OF MICHAEL J. CAHILL

ON BEHALF OF THE RESPONDENTS

MR. CAHILL: Mr. Chief Justice, and may it

please the Court:

No decision of this Court has held that

public service is comparable to private enterprise for

purposes of dormant Commerce Clause analysis. Here the

only entity that benefits from these laws is the

government itself.

JUSTICE ALITO: All the local processing

cases, would they have come other differently if those

facilities -- the milk processing plant, the shrimp

processing plant, and so forth -- had been publicly

owned?

MR. CAHILL: I think, Your Honor, they would

be different. In each of those cases the laws in

question operated to protect a private entity or group

of entities. In Dean Mills, for instance, it was a

group of private milk pasteurizers within a five-mile

radius of the town -- the city of Madison. In none of

those cases was the government itself engaged in

providing the service to the public.

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JUSTICE KENNEDY: Well, it might be a good

revenue device for the government to say, yeah, let's

have our own pasteurizing plant, we'll make it a

criminal offense for anybody to use a facility other

than ours and we'll charge triple the price.

MR. CAHILL: Your Honor.

JUSTICE KENNEDY: That's not a burden on

interstate commerce?

MR. CAHILL: That might be. In our case

that is not the case here. What we use is a user fee.

We have a limit. There's a limit to a user fee. We can

JUSTICE KENNEDY: Suppose the user fee were

ten times what it is?

MR. CAHILL: We can only charge something

that's reasonably related to the cost of what, of the

service that we provide.

JUSTICE KENNEDY: Why is that?

MR. CAHILL: In Evansville Airport, Your

Honor, this Court held that -- versus Delta Airlines --

that a user fee is constitutionally limited; there has

to be a relationship between the cost of a service and

the amount that's charged.

JUSTICE SCALIA: So don't call it a user

fee. Call it something else.

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MR. CAHILL: Your Honor, if we --

JUSTICE SCALIA: Call it a tax ripoff.

(Laughter.)

JUSTICE SCALIA: Then you can charge

whatever you want, so long as you don't call it a user

fee, right?

MR. CAHILL: In New York, Your Honor, you

either have to call it a user fee or a tax or something

else.

CHIEF JUSTICE ROBERTS: Call it a cable TV

franchise fee. I mean, isn't that the way

municipalities used to make a lot of money? They

charged outrageous amounts to give the cable franchise

and then grant a monopoly in exchange.

MR. CAHILL: I don't know what cable

franchises base their, base their amounts on. I do know

that in our case the cost to tip a ton of waste is

directly related to the value of the services that we

provide to the public.

CHIEF JUSTICE ROBERTS: To get back to the

public-private distinction, what is the answer to

Mr. Tager's point that that's difficult to -- what if

you have a 50 percent publicly owned, 50 percent

privately owned company? Is that covered by the

Commerce Clause cases or not?

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MR. CAHILL: Your Honor, I think that the --

they would not be -- it would not be unconstitutional

under the Commerce Clause cases. I think that the

distinction is that when government is actually in the

transaction, when it's taking the risks, when it's

spending public money, when it's providing a service

directly to the people, it's a public, it's a public

service.

JUSTICE SOUTER: But at the same -- exactly

that -- that avoids the problem. At exactly the same

time, it's protecting the private 50 percent interest.

Why isn't the better answer that in fact that would be

subject to Commerce Clause analysis and that would fall,

that if the government wants to do this the government's

going to do it the way the government's doing it in your

case, it's going to be a 100 percent government. If it

doesn't, it's protectionism.

MR. CAHILL: Your Honor, I agree with you.

We don't have 50 percent ownership. We don't have any

private ownership anywhere. There are, however,

government agencies in other contexts where there is a

private partner. That's a case that isn't here today.

But the question was what if there was, and I don't

think the answer is automatic one way or the other.

JUSTICE SCALIA: You know, there's a general

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agreement throughout the world nowadays that sovereign

immunity, which usually applies to governments, doesn't

apply when the government is engaged in a commercial

activity. Now, why shouldn't something similar apply to

government regulation which ends up discriminating

against out of State businesses, when the government is

engaging in a commercial activity it is subject to the

restrictions of the Commerce Clause? Why isn't that a

reasonable rule?

MR. CAHILL: I think it is a reasonable

rule. But I don't think that we're engaging in

commercial activity in this particular case. If we were

to offer our services to citizens to whom we do not have

a governmental responsibility, then I think we're

entering into the realm of competition with the private

sector.

JUSTICE KENNEDY: Well, I suppose any

private entity can choose its market.

MR. CAHILL: Pardon me, Your Honor?

JUSTICE KENNEDY: I suppose any private

entity can choose its market. You're a market

participant. You're saying, we're going to serve this

class of consumers. That's your privilege. But what

you do is you have a market participation which is

sanctioned by the criminal law. You've built this trash

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utopia where everybody sends wonderful trash and you

enforce use of that by the criminal law. So you're

engaging as a market participant, but you're taking an

extra advantage by using the criminal law to enforce, to

enforce its use.

MR. CAHILL: Your Honor, I don't -- I agree

with you that we're providing a service here, and we do

use the law to require that haulers and generators

participate in the service that we -- in the system that

we've created. We need to have -- to achieve the goals

that we're trying to achieve. We've asked our public to

separate their wastes and we've asked our haulers to

collect it in a way that's consistent with the programs

that we've established.

JUSTICE SCALIA: You could do that by

requiring all trash pickup to segregate recyclable and

non-recyclable, and if it's going to cost each

householder just as much trouble then there could be

competition and you would have achieved your goal. No?

MR. CAHILL: No, Your Honor. There is no

competition between our program and -- that's offered by

the private sector. What we do is different than what

the private sector offers and there's no place else for

it to go. The haulers are required today to comply with

the program and to coordinate their activities with the

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separation done by the residents and the facilities that

the authority has putting to.

We do things -- we have three different,

three basic differences between what we do and what the

private sector would do. The first one is to step in

and take some of the risk for proper disposal. When the

haulers make the decision about where the garbage goes,

there's a liability that attaches to the waste. If it

goes to the wrong place it's going to follow, follow

back both to the hauler and to the person who generated

it. We have had some bad experiences with people making

bad decisions about where waste goes in the 1980s and

the public asked us to set something up so that they

could trust who was making the disposal decisions. So

as a government we've stepped into that problem. We've

stepped into the shoes of the generator, and we're

trying to set up a place --

JUSTICE SCALIA: You could do that by law.

You could do that by law. You could specify that only

certain waste facilities can be used.

MR. CAHILL: I think not, Your Honor.

JUSTICE SCALIA: You don't have to run the

business in order to assure that, do you?

MR. CAHILL: I think we do.

JUSTICE SCALIA: Why?

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MR. CAHILL: Because we don't have the power

as a local government in New York to talk to landfills

in Ohio or Pennsylvania about how they should run their

facilities. The only way that we can be sure that it

goes to the right place, that's engineered the right way

and built the right way and run the right way is to

offer to do it ourselves. And that's what we've --

JUSTICE ALITO: But none of that -- in

answer to my earlier question, I thought you said none

of that really matters, right? The only thing that

matters is that this is a publicly owned facility. You

could be selling hamburgers or renting videos and it

would come out the same way.

MR. CAHILL: I think why public ownership

matters is that it's not discriminatory. I think the

strict scrutiny test should not apply when government

owns --

JUSTICE SCALIA: So your answer is yes?

MR. CAHILL: Yes.

JUSTICE SCALIA: It doesn't matter?

Hamburgers are just as good?

MR. CAHILL: Well, hamburgers, Your Honor,

if the government was going to be the sole purveyor of

hamburgers in a community, I think they'd have to have a

very, very good reason. If they had such a good reason,

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then yes, government could do that.

JUSTICE SOUTER: Well, that's just a

question of New York law, isn't it?

MR. CAHILL: Of --

JUSTICE SOUTER: I don't know, I don't know

what municipalities can do in New York. You say they've

got to have a good reason. I assume you're referring to

New York law for that purpose.

MR. CAHILL: I am not, Your Honor. I have

no idea --

JUSTICE SOUTER: What are you referring to,

then?

MR. CAHILL: The concept, the concept that

government might be, might find it necessary to get into

the hamburger business. I can't --

JUSTICE SOUTER: Then essentially it's just

a political check on it. When you say there's got to be

a good reason, politically people would get mad if you

didn't have a good reason; is that basically it?

MR. CAHILL: That's one reason. It would

also --

JUSTICE SOUTER: But there's no Commerce

Clause reason?

MR. CAHILL: I think there's no Commerce

Clause reason.

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JUSTICE SOUTER: Okay.

MR. CAHILL: I think there's no Commerce

Clause reason.

JUSTICE STEVENS: Mr. Cahill, you started to

tell us three reasons why it was important that you

regulate. You gave us one. Mention the other two.

MR. CAHILL: The other two are, Your Honor,

that we are fulfilling national objectives in trying to

establish the system that reduces the amount of waste

that we generate and recycles as much as possible.

That's not necessarily something that the private sector

would do. A landfill is not built to discourage the

amount of waste that comes through it. Our system is

designed to try to change the habits of our citizens and

increase recycling --

JUSTICE KENNEDY: Well, but it's basic

Commerce Clause analysis that a State has no interest in

what happens to the product out of State. Baldwin

versus Seelig.

MR. CAHILL: Your Honor, I think --

JUSTICE KENNEDY: You can't say we want --

we're enacting this law to affect what happens in other

States. That's just contrary to the Commerce Clause.

MR. CAHILL: We are not attempting to

regulate what goes on in other States. We

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are attempting --

JUSTICE KENNEDY: But I thought that was

just the answer you gave to Justice Stevens on your

point two.

MR. CAHILL: We are attempting to protect

our own citizens by reducing the liabilities that they

may incur if that waste is shipped anywhere outside of

the counties. We hope to give them a better solution

for disposal than they would get from the marketplace.

To the extent that liability crosses state lines, we are

trying to protect our citizens from that liability --

JUSTICE SCALIA: Whether they want the

protection or not?

MR. CAHILL: Well --

JUSTICE SCALIA: And whether a private

individual can come and offer them the same protection

for less money or not?

MR. CAHILL: Yes, Your Honor, that's true.

JUSTICE SCALIA: We're the government and

we're here to help you?

MR. CAHILL: Yes.

JUSTICE SOUTER: But isn't that almost a

fourth point? I realize you didn't get the third point

out yet. But isn't -- I remember your brief and isn't

there sort of a fourth point? And that is, I will

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assume that the government does have some basic health

and safety objectives and the objective to protect its

citizens here.

MR. CAHILL: Yes.

JUSTICE SOUTER: If the government tries to

pursue these policies solely by private inducement,

trash haulers may say, we don't want to deal on those

terms, we can haul somewhere else, in another county,

another State, what-not.

By taking on the job itself, the government

in effect is guaranteeing that to the extent it can

protect its citizens, induce respect for environmental

policy, and so on, it will do so without any cessation

of service? There's kind of an assurance of service

plus the objectives that the government gets by running

the plant itself. And isn't that sort of the nub of all

of your points?

MR. CAHILL: Yes, Your Honor, that's true.

That is the essence of government. We are there and we

are going to have to stay there. Whether -- where a

private entity might decide to go out of business

tomorrow, government is going to be there to continue to

do what we set out to do.

But this leads me also to my third point,

which is that we're attempting to implement a

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comprehensive solid waste plan. With the passage of

Federal legislation on these environmental matters

touching on waste in the 1970s, with the Resource

Conservation and Recovery Act, and With the

Comprehensive Environmental Response and Liability Act,

there was a new message sent to the country, which to

generators meant, you better think about what you're

doing with this stuff. You better make a -- you better

watch where it goes and you better be careful because

liability could attach to you.

And RCRA told government, States and

localities, it was their responsibility to come up with

plans to find new ways to manage solid wastes. That's

what we've done. Any time a government comes together

to put a plan together to dispose of solid wastes,

whether like ours it uses several different technologies

to try to address different parts of the waste stream,

you have to have the cooperation of the people who

collect the waste. If the people who collect the waste

could drive its away to anywhere they please, the plan

is no plan; the plan is just a suggestion. The haulers

JUSTICE KENNEDY: Who mandated this plan?

The State of New York?

MR. CAHILL: The State of New York.

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JUSTICE KENNEDY: But the State of New York

can't mandate what happens to interstate commerce.

MR. CAHILL: No, Your Honor, it cannot.

JUSTICE KENNEDY: If you say the Congress of

the United States has authorized discrimination against

interstate commerce, then of course it can do that.

That has happened.

MR. CAHILL: That is not our position, Your

Honor. We're not saying that RCRA or any of these

statutes authorize discrimination against interstate

commerce. What the Federal statutes did do, however,

was recognize that the states do have the sovereign

power to act, and they expected the states to act in

this way.

JUSTICE SCALIA: Let's take one of these

classic discrimination cases involving milk. I think

what you're telling us is that if Wisconsin adopted a

law requiring all milk to be pasteurized at a facility

owned and operated by the State of Wisconsin, that would

be perfectly okay.

MR. CAHILL: That would not discriminate

against interstate commerce.

JUSTICE SCALIA: That's right. And it would

really advantage Wisconsin dairy farmers, wouldn't it,

and really disadvantage out of Wisconsin dairy farmers,

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and you think that the Commerce Clause doesn't speak to

that.

MR. CAHILL: No, I do think the Commerce

Clause speaks to it, Your Honor, but I just -- our

position is it just doesn't require strict scrutiny. I

think the Pike test is a very good test to get to the

bottom of why Wisconsin would want to do such a thing,

and it would also be a good test to show just what the

adverse impact on interstate commerce was, and what

precisely the benefits of, to Wisconsin there might be.

I think the Pike test --

CHIEF JUSTICE ROBERTS: So then, the

Commerce Clause would become the vehicle by which we

would develop federal law about what's appropriate for

municipal governments to do and what's not appropriate?

We could decide it may be appropriate to run waste

facilities but not to run milk pasteurization. I don't

know how we would do that.

MR. CAHILL: I don't know how you would do

that either, Your Honor, but you would be led into that

by accepting the petitioner's argument that public

services and private sector services are comparable

under the Commerce Clause. To go back to your example,

earlier, Justice Scalia --

CHIEF JUSTICE ROBERTS: Well, if we accepted

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that argument, we would treat the public services just

like we treat, you know, the legislation favoring

private companies. You're the one that's arguing for

special treatment based on public ownership.

MR. CAHILL: I think we are not, Your Honor.

I think public ownership and public services are unique

and they're different, and they should be subject to

Commerce Clause scrutiny, but not --

CHIEF JUSTICE ROBERTS: But the whole point

is these are not unique. The whole point is there are

private companies that provide these kinds of services.

Maybe water, maybe electricity, maybe those are or are

not unique. But you can't say that this is a unique

service being provided by government.

MR. CAHILL: I think the approach that

Oneida-Herkimer has taken is in fact unique. It is

tailored to our local situation. It's not something

that the marketplace would provide if the government was

not there. And if the Petitioner's idea that any

government service could be challenged under the dormant

Commerce Clause simply because there's a private entity

out there that says they could do the same thing were

accepted, the definition of discrimination would be

changed from differential treatment of economic

interests to differential treatment of government or

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economic interests. And whether we use the taxing power

or police power to support a public enterprise, it would

be subject to challenge.

JUSTICE STEVENS: But the challenge here

isn't gauging this business, the question is whether you

can require everybody in the area to go through the one

facility and pay a tipping fee.

MR. CAHILL: Yes.

I would like to close, I think, because I'm

running out of time, with just the admonition or

requirement that we are, in providing a public service,

still subject to the Constitution and we must deal with

the part private sector fairly. But if we do deal with

the private sector fairly and we don't favor anyone in

state or anyone out of state, we should be judged under

the balancing test of Pike, so that the Court, if the

court below found the benefits of our system

substantially outweigh any incidental burdens that are

placed on it by commerce, placed on commerce by the

system. Thank you.

CHIEF JUSTICE ROBERTS: Thank you,

Mr. Cahill.

Ms. Halligan.

ORAL ARGUMENT OF CAITLIN J. HALLIGAN

ON BEHALF OF NEW YORK AS AMICUS CURIAE

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SUPPORTING THE RESPONDENTS

MS. HALLIGAN: Mr. Chief Justice, and may it

please the Court:

As you suggested, Justice Breyer, the theory

that petitioners would have the Court adopt here is in

fact a novel one. What they are suggesting is that

there is discrimination sufficient to trigger near fatal

scrutiny every time the government takes over, to the

exclusion of all private actors both in state and out of

state, a government service, that that is sufficient to

trigger strict scrutiny. That is completely

inconsistent with the way that this Court has defined

what constitutes discrimination for purposes of the

dormant Commerce Clause.

The Court has said, and it has stressed

repeatedly in its precedent, that discrimination is the

differential treatment of in state and out of State

economic interests, not government interests, in a way

that benefits the former and burdens the latter. That's

from Oregon Waste System.

JUSTICE STEVENS: Let me ask you a sort of

simple question. Is there an interstate impact on, of a

municipal rule whether it is milk, or garbage, or what,

that says all of this product must be processed within

this city before it can go out of State?

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MS. HALLIGAN: There may well be an

interstate impact.

JUSTICE STEVENS: Doesn't that have a burden

on interstate commerce?

MS. HALLIGAN: It may well, and that is

something that is appropriately judged under the Pike

standard.

JUSTICE STEVENS: Isn't that exactly what we

have here?

MS. HALLIGAN: I think that you do have that

here, and you should judge it under the Pike valency

test, not under the near fatal scrutiny that's, that's

JUSTICE KENNEDY: But Pike doesn't apply to

discrimination. Pike applies to burdens.

MS. HALLIGAN: Yes, Your Honor. And where

you have --

JUSTICE KENNEDY: It seems you are

conflating the two.

MS. HALLIGAN: Respectfully, I disagree,

Your Honor. Where you have the government taking over a

service entirely, that doesn't constitute discrimination

because there is no local private interest that is

advantaged, and no burden that is shifted to out of

state interest. That is where the dormant Commerce

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Clause is primarily --

JUSTICE SCALIA: So long as the government

enters the commercial market, it can, it can create

Fortress California? MS. HALLIGAN: We're not asking

for a rule that broad, Your Honor. What we are

suggesting is that where you have a publicly owned

operation, a government operation, and it does not

disproportionately benefit in state or local interests,

as against out of state interests -- But it always does.

It benefits the people of the State, who make the money

from the money from the, from the very expensive

hamburgers that are sold by the State of California.

MS. HALLIGAN: If --

JUSTICE SCALIA: It always benefits the

State of California.

MS. HALLIGAN: Well --

JUSTICE SCALIA: And you're saying so long

as it doesn't benefit one particular malefactor of great

wealth in the State of California, it is okay.

MS. HALLIGAN: No, Your Honor --

JUSTICE SCALIA: I don't see the distinction

as far as the harm to the national market is concerned.

MS. HALLIGAN: If you were to have

government action, for example, someone suggested could

the government sell hamburgers. I believe Justice Alito

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suggested that, and that was to operate to the

disadvantage of out of state interests, even if it only

advantaged one in state interest, we would agree that

that would be appropriate for treatment under strict

scrutiny. But that's not what you have here.

What both the district court and the circuit

court in fact found here is that the primary burden of

these local ordnances in fact is on local residents.

And so the political process check that this Court has

found critical in cases like Minnesota versus Cloverleaf

and Wunnicke is very much precedent here. This is not

an attractive proposition that these localities have

entered into.

JUSTICE KENNEDY: What would you do with

Justice Alito's question? Dean Milk versus Madison:

All milk must be processed whether been 20 miles of

where it's --

MS. HALLIGAN: It's --

JUSTICE KENNEDY: -- produced.

MS. HALLIGAN: Yes.

JUSTICE KENNEDY: Held discriminatory

against interstate commerce. Could -- under your view,

could your city require all milk be pasteurized within

your city at a government owned, city owned facility?

MS. HALLIGAN: If that rule imposed no

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disproportionate benefits on out of state --

JUSTICE KENNEDY: No, but Justice Scalia

says it always does because it benefits the locality.

MS. HALLIGAN: It's different if it benefits

JUSTICE KENNEDY: You have -- by criminal

laws --

JUSTICE STEVENS: You -- I'm sorry. We're

looking at the interstate aspect from the wrong point of

view.

I'm a home owner. I have two choices. I

either send it to the local facility or I can ship it

over to New Jersey. You're telling me I can't ship it

to New Jersey. Doesn't that burden an interstate

transaction?

MS. HALLIGAN: This is very different from

those kinds of export bans. Those export bans did one

of two things.

JUSTICE STEVENS: This is an export ban.

MS. HALLIGAN: The export bans that this

Court has struck down either created local --

JUSTICE STEVENS: Your case involves an

expert ban. All the trash has to be processed in your

tipping facility.

MS. HALLIGAN: It does, and it does, and to

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the extent that's what you are characterizing as an

export ban, that's certainly correct. What the Court

has found problematic about export bans are either that

they are put in place to create local to correct

economic opportunities, for example the timber cases or

the shrimp cases.

That's not what you have here. There's no

allegation that the purposes of these statutes is to

foster or promote local industry. In fact, the only

plaintiffs in this case are local haulers themselves.

CHIEF JUSTICE ROBERTS: Well, there is an

allegation that you charge above market rates to pursue

particular economic goals that the municipality has.

MS. HALLIGAN: For a different basket of

services, Your Honor. A basket of services that

includes a wider range of, of goals that the private

sector has no Interest in providing.

To return, to return to the question of

whether or not this is an inappropriate benefit for the

citizens, I would argue that there is a meaningful

distinction between government taking an action which

benefits the citizens as a whole, which we would hope

any government law would -- any law passed by a

government would do, as opposed to a law that benefits a

local private economic interest and is intended to do

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so.

For the dormant Commerce Clause to reach

that far would be unprecedented. It would implicate not

only electricity but under Petitioner's theory it would

implicate, I would think for example government

decisions to provide prison and correctional services

through a public system as opposed to a private one.

What about school bus services? Car insurance --

CHIEF JUSTICE ROBERTS: If only facilities

on your side of the case that are traditional municipal

services, but then this seems to be at the borderline.

I mean, on the other side, they have the hamburger cases

or the milk processing cases. How do we decide whether

this is one of the traditional governmental services,

the police, the prisons, whatever, or is it one of these

that looks more like regular market participation?

MS. HALLIGAN: Two answers if I can, Your

Honor. First of all, I think this Court has answered

that question with respect to waste management more than

a hundred years ago in the California Reduction case.

It was clearly held there the provision of waste

management services is an essential function that

governments appropriately provide.

So that's been answered here. With respect

to this question about hamburgers and other services

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that look commercial, I think there are two checks on

those kinds of ordinances. First of all, I think it is

very likely that in most circumstances if you were to

say that hamburgers will be sold at a government

operated facility, that that would disadvantage local

interests significantly, and there would be a political

process check.

Secondly the Court has been clear that it is

not bound by formalistic distinctions in the Commerce

Clause arena and so it will look for discrimination that

is protectionist in nature whether it is, as the Court

has said, forthright or ingenious. So if case were to

present itself, and the facts in the facts in this case

no whiff of that protectionism, where you were to

believe that the motive of a government entity was, in

fact, to favor some local private interest, then strict

scrutiny might be appropriate.

JUSTICE ALITO: Is that what it turns on,

the motive? If the motive were to keep the jobs at the

plant in New York, rather than in some facility outside

of New York, that would be, that would make a

difference?

MS. HALLIGAN: No, I think this Court has

held the purpose alone cannot cure an inappropriate

means that is used. But what we are arguing is that

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here you have both a very legitimate purpose, as my

co-counsel outlined for you; you also have appropriate

means. It is not inappropriate under the dormant

Commerce Clause for the government to step in and take

over provision of a service. Petitioners themselves

agree that, in fact, the government could take over

waste management services from soup to nuts. They

suggest that there is some difference of a

constitutional magnitude because some aspect of that is

contracted out to the private market, and would argue

that actually turns the dominant Commerce Clause on its

head.

One final point, if I could make. Several

of you asked about whether or not there are other

mechanisms that the localities could use to further

these goals, goals which are set forth in both Federal

and State laws.

First of all, under the Pike test, there is

no least restrictive alternative test. So it is not

required that the localities demonstrate that there is

no other option that might meet these goals. The Second

Circuit concluded and rightly so I think on page 20a of

the appendix to the petition that there was no other

option that presented itself in the record that the

counties could address, or could use to address their

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liability concerns and to encourage recycling across a

very wide range of products.

JUSTICE SCALIA: There is no determinative

element in the Pike test whatever. It is a totality of

the circumstances test, right?

MS. HALLIGAN: Yes, Your Honor.

JUSTICE SCALIA: That's wonderful.

(Laughter.)

MS. HALLIGAN: And we suggest that that is

the appropriate test here.

JUSTICE GINSBURG: Ms. Halligan, how do you

answer something in the Petitioner's brief that says

there's no difference between this case and Carbone

because these transfer stations are constructed and

operated by a private company?

MS. HALLIGAN: I think that that distinction

is essential here. It is essential because of the

purposes of the dormant Commerce Clause. These are

publicly owned facilities. The facility in Carbone was

privately owned and as you suggested, Justice Ginsburg,

the opinion is replete with careful references to that.

CHIEF JUSTICE ROBERTS: Where do you, where

do you come out on the 50-50 facility?

MS. HALLIGAN: I think that's a hard

question, Your Honor. And I think there the kind of

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approach that the Court took in a case like Westland

Creamery and Hunt versus Washington Apple is helpful.

If it appears to the Court that the motive

is protectionist then it is appropriate to apply strict

scrutiny. Whether that line is 50 percent, 55 percent

CHIEF JUSTICE ROBERTS: Well, I thought you

said earlier motive was not the test, in response to I

think it was Justice Alito.

MS. HALLIGAN: Yes, Your Honor. I'm saying

you should look as you have -- and I see my time is up.

If I may continue -- you should look as you have, in all

of the dormant Commerce Clause cases at the context that

is presented. So if there is 100 --

CHIEF JUSTICE ROBERTS: Thank you. Thank

you, Counsel.

Mr. Tager you have three minutes remaining.

REBUTTAL ARGUMENT OF EVAN TAGER,

ON BEHALF OF PETITIONERS

MR. TAGER: Thank you, Mr. Chief Justice.

The first point I'd like to make is I'd like

to ask the Court to review Reeves versus Stake which is

a market participant case. But what is significant

there -- that's the cement plant case -- there's two

significant things about that case which I think are of

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interest.

First, the Court's footnote 1 is an

interesting historical footnote about how South Dakota

had elected to make a lot of these different industries

state-run industries, so the hypotheticals we've been

discussing are not completely off the wall.

If you can do it for waste you can do it

for, in that case coal. They wanted to do it for

stockyards but I think the legislature rejected the

government's proposal. So the hypos are right on point.

Secondly, the Court made a point there in

rejecting the argument, the constitutional argument that

the state was not prohibiting competing cement

companies. And I think the inference from that is that

it had, there would have been a Commerce Clause problem.

Second, Mr. Cahill's user -- user fee point.

I just want to remind the Court that in addition to

paying for the recycling and everything, they were using

the user fee to pay off the bond for their failed energy

recovery facility. So, if you start focusing on what

you use it for, it is a very slippery slope.

On his point about protecting the generator

from liability, we've addressed that at great lengths in

our briefs. But one other point I want to make is he's

wrong about their ability to determine whether other

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facilities that the haulers want to use are safe for

environmental purposes. That's exactly what the city of

New York does. Because it doesn't have its own disposal

facility, its got very stringent requirements for where

the waste can be taken.

Fourth, Justice Souter, I believe you were

raising an inquiry about the political process and

whether that's adequate to protect the out of State

interests.

And I'd like to refer you to the West Lynn

Creamery decision where the Court said the people whose

oxen are being gored by a tariff are the local residents

as well, but a tariff is the prototypical Commerce

Clause violation. The political process is simply not a

good answer to our argument.

In terms of your other question about --

JUSTICE SCALIA: A tariff is also imposed by

a State, isn't it? As opposed to --

MR. TAGER: Yes.

JUSTICE SCALIA: Money goes to a State.

MR. TAGER: It would go to a State. I

suppose it could be done by a subdivision, though.

On Ms. Halligan's point about California

Reduction, I just would like to remind the Court that

that was a case of flow control to a private company.

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So Carbone, to the extent that case was concerned at all

with the Commerce Clause, and it didn't say that it was,

it was a taking case, I think, it has been overruled to

the extent it had any Commerce Clause implications.

Finally, I would like end with the point

that Carbone has been the law for 13 years -- may I

finish?

If the Respondents have a problem with

Carbone, Congress can fix it. That's one of the unique

things about the Commerce Clause that is different from

other constitutional provisions.

CHIEF JUSTICE ROBERTS: Thank you, counsel.

The case is submitted.

(Whereupon, at 12:08 p.m., the case in the

above-entitled matter was submitted.)

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