Amicus Curiae Brief — Association des Eleveurs de Canards et d’Oies du Quebec, et al., Petitioners v. Xavier Becerra, Attorney General of California

No. 17-1285

In the Supreme Court of the United States

ASSOCIATION DES ELEVEURS DE CANARDS

ET D’OIES DU QUEBEC, ET AL.,

Petitioners,

v.

XAVIER BECERRA,

ATTORNEY GENERAL OF CALIFORNIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Brief of Amici Curiae the State of Missouri and

10 Other States Supporting Petitioners

OFFICE OF THE MISSOURI JOSHUA D. HAWLEY

ATTORNEY GENERAL

Attorney General

Supreme Court Building D. JOHN SAUER

207 West High Street

First Assistant and

P.O. Box 899

Solicitor General

Jefferson City, MO 65102 Counsel of Record

John.Sauer@ago.mo.gov JULIE MARIE BLAKE

(573) 751-3321

JOSHUA M. DIVINE

Deputy Solicitors General

Counsel for Amicus Curiae State of Missouri

i

TABLE OF CONTENTS

Table of Contents ........................................................ i

Table of Authorities.................................................... ii

Introduction and Interest of Amici .............................1

Summary of Argument................................................2

Argument .....................................................................2

I.

California persistently ignores federal law by

extraterritorially regulating other States’

agricultural and industrial production. ...............2

II. California’s persistent disregard for federal

law warrants this Court’s intervention. ..............8

Conclusion ................................................................. 12

Appendix…………………………………………….APP-1

ii

TABLE OF AUTHORITIES

Cases

National Meat Association v. Harris

565 U.S. 452 (2012).............................................. 2, 3

Alfred L. Snapp & Son, Inc. v. Puerto Rico,

458 U.S. 592 (1982)........................................ 5, 9, 10

Am. Fuel & Petrochemical Mfrs. Ass’n v. Corey,

134 S. Ct. 2875 (2014).......................................... 6, 8

Corey v. Rocky Mountain Farmers Union,

134 S. Ct. 2884 (2014)..............................................6

Energy & Env’t Legal Inst. v. Epel,

793 F.3d 1169 (10th Cir. 2015).............................. 11

Georgia v. Pennsylvania R. Co.,

324 U.S. 439 (1945).............................................. 5, 9

Haywood v. Drown,

556 U.S. 729 (2009)................................................ 11

Healy v. Beer Inst.,

491 U.S. 324 (1989).............................................. 5, 6

Hughes v. Oklahoma,

441 U.S. 322 (1979)..................................................4

North Dakota v. Minnesota,

263 U.S. 365 (1923)..................................................9

Rocky Mountain Farmers Union v. Corey,

134 S. Ct. 2875 (2014)..............................................6

Rocky Mountain Farmers Union v. Corey,

730 F.3d 1070 (9th Cir. 2013)............................ 5, 10

Rocky Mountain Farmers Union v. Corey,

740 F.3d 507 (9th Cir. 2014)............................ 3, 4, 5

South Carolina v. Regan,

465 U.S. 367 (1984)..................................................9

Texas v. New Mexico,

2018 WL 1143821 (U.S. Mar. 5, 2018) ....................9

iii

The Apollon,

22 U.S. 362 (1824)....................................................9

Wyoming v. Oklahoma,

502 U.S. 437 (1992)................................................ 12

Statutes

21 U.S.C. § 451 .......................................................... 10

21 U.S.C. § 1052(b) ......................................................7

Other Authorities

Cal. Health & Safety Code § 25990(a)–(b) .................6

Cal. Health & Safety Code §§ 25990-25994 ........... 6, 7

Calif. Health & Safety Code § 25996 ..........................7

Assembly Bill 1437 ......................................................7

Restatement (Third) of Foreign Relations Law § 432

(1987) ...................................................................... 11

1

INTRODUCTION AND INTEREST OF AMICI

This case involves a single State’s attempt to defy

federal law and dictate the manner of agricultural

production in every other State.

California is flouting the limits that federal law

puts on California’s regulatory reach. Under the

Constitution and federal statutes, California lacks

power to regulate agriculture or commerce beyond its

borders. But, despite the text and structure of federal

law, California is enacting law after law governing

other States’ economies. And no matter how many

times California’s laws regulate other States, the

Ninth Circuit refuses to enjoin these regulations and

enforce federal law—even after this Court

unanimously reversed the Ninth Circuit in a

strikingly similar case. As a result, producers

nationwide face more and more closed markets and

consumers nationwide suffer increasingly inflated

prices. Worse still, other States like Massachusetts

and Colorado have begun to follow California’s lead

and pass such extraterritorial laws themselves.

Because California interferes with other States’

sovereign interests in ensuring compliance with

federal law within their borders, amici States urge

this Court to grant review. *

* Amici are the States of Missouri, Arkansas, Indiana, Michigan,

Montana, Oklahoma, North Dakota, South Carolina, Texas,

Utah, and West Virginia. Under Supreme Court Rule 37.2(a),

amici have timely notified the parties of their intent to file this

brief.

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SUMMARY OF ARGUMENT

Unless this Court intervenes, California will

continue to regulate other States in violation of

federal law and in disregard of other States’ sovereign

interests. In fact, other States have begun to follow

California’s lead and seek to regulate other States’

economies in violation of federal law.

ARGUMENT

I.

California persistently ignores federal law

by extraterritorially regulating other States’

agricultural and industrial production.

In National Meat Association v. Harris, this Court

held that California had imposed agriculturalproduction regulations on other States in violation of

federal law. The Federal Meat Inspection Act

preempts state laws imposing conditions on

slaughterhouses “in addition to or different from”

those Congress set. 565 U.S. 452, 468 (2012).

California’s then-prohibition of the slaughter of

nonambulatory animals for human consumption at

slaughterhouses flouted this law. Id. at 459. This

Court unanimously held that the FMIA’s preemption

clause “prevents a State from imposing any additional

or different—even if non-conflicting—requirements”

on meat products. Id. at 459–60. The clause “covers

not just conflicting, but also different or additional

state requirements,” and it “precludes California’s

effort . . . to impose new rules, beyond any the [federal

government] has chosen to adopt” for products

shipped from other States. Id. at 460–61. California’s

regulation thus “runs smack into the [Act’s]

regulations” because “at every turn” it “imposes

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additional or different requirements” than what

federal law requires. Id. at 459–60, 467.

But, despite this Court’s unanimous rebuke,

California has repeatedly enacted strikingly similar

agricultural laws. In fact, National Meat Association

and the present petition concern just two of several

attempts by California to dictate the manner of

agricultural and industrial production in other States.

California also seeks to control ethanol production in

other States’ cornfields and refineries, Rocky

Mountain Farmers Union v. Corey, 740 F.3d 507 (9th

Cir. 2014), and to dictate the manner of egg

production of other States, Missouri v. California, No.

22O148 (U.S.), in violation of federal law.

A. In the Global Warming Solutions Act of 2006,

the California legislature decided to reduce

greenhouse gas emissions to 1990 levels by the year

2020, and so the California Air Resources Board

promulgated the Low Carbon Fuel Standard. This

standard makes businesses that sell transportation

fuels in California reduce the carbon intensity of their

fuels by ten percent before 2020. See Rocky Mountain

Farmers Union, 740 F.3d at 513 (Smith, J., dissenting

from denial of rehearing en banc). Carbon intensity

measures how carbon-intensive the production

process is for making, distributing, and using a

particular source of fuel. Id.

California’s standard openly assigns higher

carbon intensity to out-of-state ethanol than to

chemically identical in-state ethanol. Id. Californians

thus had to reduce their use of out-of-state ethanol to

comply with California’s law.

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These ethanol regulations violate the federal

Commerce Clause. The Commerce Clause prohibits

States from enacting legislation that intentionally

discriminates against citizens of other States, that

regulates conduct wholly outside their borders, or that

places an undue burden on interstate commerce.

California’s regulations infringed on the sovereign

interests of ethanol-producing States “to regulate

farming, ethanol production, and other activities

within their own borders as they see fit.” Id.

Indeed, the “central concern” of the Commerce

Clause—especially its

dormant

or negative

component—was to prevent the friction between

States arising from interstate trade barriers that

plagued the Articles of Confederation. Hughes v.

Oklahoma, 441 U.S. 322, 325–26 (1979). “The few

simple words of the Commerce Clause . . . reflected a

central concern of the Framers that was an immediate

reason for calling the Constitutional Convention: the

conviction that in order to succeed, the new Union

would have to avoid the tendencies toward economic

Balkanization that had plagued relations among the

Colonies and later among the States under the

Articles of Confederation.” Id. As James Madison

commented, if the individual States “[w]ere . . . at

liberty to regulate the trade between State and State,”

interstate trade barriers “would nourish unceasing

animosities, and not improbably terminate in serious

interruptions of the public tranquility.” THE

FEDERALIST No. 42 (Madison), at 214 (Garry Wills, ed.

1982).

After all, “[t]rade barriers may cause a blight no

less serious than the spread of noxious gas over the

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land or the deposit of sewage in the streams. They

may affect the prosperity and welfare of a State as

profoundly as any diversion of waters from the rivers.”

Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S.

592, 606 (1982) (brackets omitted) (quoting Georgia v.

Pennsylvania R. Co., 324 U.S. 439, 450–51 (1945)).

But the Ninth Circuit disregarded this Court’s

precedent

and

upheld

California’s

ethanol

regulations. Praising California for having “long been

in the vanguard of efforts to protect the environment,

with a particular concern for emissions from the

transportation sector,” the Ninth Circuit decided that

California’s ethanol regulations do not facially

discriminate against out-of-state commerce and that

its initial crude-oil provisions did not discriminate

against out-of-state crude oil in purpose or practical

effect. Rocky Mountain Farmers Union v. Corey, 730

F.3d 1070, 1078 (9th Cir. 2013).

As several judges wrote in dissent, the Ninth

Circuit decision in that case “gives short shrift to the

principle that ‘[s]tate laws that discriminate against

interstate commerce face ‘a virtually per se rule of

invalidity.’” Rocky Mountain Farmers Union v. Corey,

740 F.3d 507, 515 (9th Cir. 2014) (M. Smith,

O’Scannlain, Callahan, Bea, Ikuta, N.R. Smith, &

Murguia, J.J., dissenting from denial of rehearing en

banc) (citing Granholm v. Heald, 544 U.S. 460, 476

(2005). The Ninth Circuit’s decision “abjures the rule

that ‘a state law that has the practical effect of

regulating commerce occurring wholly outside that

State’s borders is invalid.’” Id. (citing Healy v. Beer

Inst., 491 U.S. 324, 332 (1989).

6

The dissent thus chastised the Ninth Circuit for

upholding “a regulatory scheme that, on its face,

promotes California industry at the expense of out-ofstate interests.” Id. at 519. And it refused to join the

majority in sanctioning “California’s clear attempt to

project its authority into other states.” Id.

This Court denied review. Corey v. Rocky

Mountain Farmers Union, 134 S. Ct. 2884 (2014);

Rocky Mountain Farmers Union v. Corey, 134 S. Ct.

2875 (2014); Am. Fuel & Petrochemical Mfrs. Ass’n v.

Corey, 134 S. Ct. 2875 (2014).

B. California is also seeking to regulate egg

production in other states in clear violation of federal

law. Missouri v. California, No. 22O148 (U.S.).

In November 2008, California voters enacted

Proposition 2, a ballot initiative that prohibited

California farmers from employing methods of

agricultural production that are common throughout

the United States. See Cal. Health & Safety Code

§§ 25990-25994. Proposition 2 directed that “a person

shall not tether or confine any covered animal,”

including any egg-laying hen, “on a farm, for all or the

majority of any day, in a manner that prevents such

animal from: (a) Lying down, standing up, and fully

extending his or her limbs; and (b) Turning around

freely.” Cal. Health & Safety Code § 25990(a)–(b).

These regulations are contrary to common

agricultural practices elsewhere in the United States,

and no federal standards for egg production require

them.

California farmers and economists immediately

raised concerns that Proposition 2’s restrictions would

7

place California farmers at a competitive

disadvantage with respect to non-California farmers

in the California egg market. These researchers

forecast that Proposition 2 would require California

egg producers to make about $385 million in capital

improvements. See, e.g., Hoy Carman, Economic

Aspects of Alternative California Egg Production

Systems, at 22 (2012), available at https://

www.cdfa.ca.gov/ahfss/pdfs/regulations/Dr_Hoy_

Carman.pdf.

The California legislature thus sought to “level

the playing field” by making egg production equally

onerous for all out-of-state producers that ship eggs to

California. It passed Assembly Bill 1437, which

imposed on non-California producers the same

standards that Proposition 2 had imposed on

California producers with the same effective date.

This law enacted Section 25996, which provides that

“[c]ommencing January 1, 2015, a shelled egg may not

be sold or contracted for sale for human consumption

in California if it is the product of an egg-laying hen

that was confined on a farm or place that is not in

compliance with animal care standards set forth in

Chapter 13.8 (commencing with Section 25990).”

Calif. Health & Safety Code § 25996.

But these egg regulations violate federal statutory

and constitutional law. The federal Egg Product

Inspection Act (EPIA) forbids States from imposing on

eggs shipped in interstate commerce any “standards

of quality” or “condition” that are “in addition to or

different from the official Federal standards.” 21

U.S.C. § 1052(b). The production standards that

California imposes on out-of-state egg producers are

8

manifestly “in addition to or different from the official

Federal standards,” and thus illegal under federal

law. Id. California’s regulations also violate the

Commerce Clause and the structural limitations

inherent in the Constitution. Because the standards

California’s Act incorporated already applied to

California producers, the sole purpose and effect of

this law was to regulate the conduct of egg producers

outside California.

In short, California has repeatedly disregarded

the constraints that federal law imposes on its ability

to regulate production in other States, especially in

their agricultural sectors.

II. California’s persistent disregard for federal

law warrants this Court’s intervention.

This Court should grant review in this case not

only to rectify the private injuries suffered by

producers like the petitioners here, but also to rectify

substantial sovereign harms suffered by States across

the country.

California’s

extraterritorial

regulation

of

agricultural and energy production in other States

has serious consequences for the citizens and

economies of those States. Where the “economy of

[each State] and the welfare of her citizens have

seriously suffered as the result” of the challenged

trade barrier, the State has a core sovereign interest

in seeking relief against “a wrong which, if proven,

limits the opportunities of her people, shackles her

industries, retards her development, and relegates

her to an inferior economic position among her sister

9

States.” Georgia v. Pennsylvania R. Co., 324 U.S. at

450–51.

The Framers designed this Court’s jurisdiction to

redress sovereign injuries like those that California

imposes here. North Dakota v. Minnesota, 263 U.S.

365, 373 (1923). Before the States adopted the

Constitution, States—like other sovereigns—had two

options to settle disputes relating to interstate trade:

war or diplomatic negotiation. South Carolina v.

Regan, 465 U.S. 367, 397 (1984) (O’Connor, J.,

concurring). The Framers created this Court’s

jurisdiction over disputes between States “as a

substitute for the diplomatic settlement of

controversies between sovereigns and a possible

resort to force.” Texas v. New Mexico, 2018 WL

1143821, at *3 (U.S. Mar. 5, 2018) (citation omitted).

Trade barriers among States and intrusions on

other States’ territorial sovereignty generate the very

interstate friction that the U.S. Constitution was

designed to avoid. “[T]he exercise of sovereign power”

encompasses irreducible elements, including “the

power to create and enforce a legal code” and “the

maintenance and recognition of borders.” Alfred L.

Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458

U.S. 592, 601 (1982). Other sovereigns “have no force

to control the sovereignty or rights of any other

nation.” The Apollon, 22 U.S. 362, 370 (1824).

Principles of federalism counsel in favor of

granting review in a case challenging one of

California’s many extraterritorial regulations. When

it comes to citizens’ interests under federal statutes,

neither the States nor this Court need “wait for the

Federal Government to vindicate the State’s interest

10

in the removal of barriers to the participation by its

residents in the free flow of interstate commerce.”

Alfred L. Snapp, 458 U.S. at 608. “[F]ederal statutes

creating benefits or alleviating hardships,” such as

the NMIA, the EPIA, and the PPIA, “create interests

that a State will obviously wish to have accrue to its

residents.” Id. “[A] State does have an interest,

independent of the benefits that might accrue to any

particular individual, in assuring that the benefits of

the federal system,” including those that arise from

federal statutes, “are not denied to its general

population.” Id.

B. California’s history of ignoring federal statutes

almost identical to the statute here counsels strongly

in favor of granting review. In addition to the meat

regulations enacted in violation of federal law in

National Meat Association, the ethanol regulations

enacted in violation of federal law in Rocky Mountain

Farmers Union v. Corey, 730 F.3d 1070 (9th Cir.

2013), and the egg regulations enacted in violation of

federal law in Missouri v. California, California

enacted the law at issue in this case, which regulates

production on duck and goose farms beyond

California’s borders in contravention of the Poultry

Products Inspection Act (PPIA), 21 U.S.C. § 451 et

seq.; Pet. 4–10.

In fact, California has become so emboldened by

failure to enforce these federal laws that it has taken

the unprecedented step of sending agricultural

inspectors into other States to register and inspect

their egg production facilities. Missouri, No. 22O148,

Compl. ¶¶ 13, 28, & States’ Br. 9.

11

These inspection actions compound the harm to

other States’ sovereignty. When California sends its

law enforcement officers to “exercise their functions in

the territory of another state” without the consent of

the other state,” Restatement (Third) of Foreign

Relations Law § 432 (1987), it violates the sovereign

right of other States to exercise “lawful control over

its territory generally to the exclusion of other states.”

Id. § 206 cmt. B. Here, California’s regulations violate

federal statutory law, which “is as much the law of the

several States as are the laws passed by their

legislatures.” Haywood v. Drown, 556 U.S. 729, 734

(2009). And so, when California sends officials into

other States to “inspect” their egg producers for

compliance with California policy, California

interferes with the sovereign interests of those States

in ensuring compliance with federal law and in

controlling state-level enforcement authority within

their borders.

C. Not granting certiorari would embolden States

like California to continue to contravene federal law.

In fact, other States have already started to follow

California’s lead. At least two States impose

extraterritorial laws of their own. For example,

Colorado is seeking to regulate electricity production

in other States by requiring any electricity on the

national grid that flows to Colorado to be composed of

20 percent renewable energy sources. Energy & Env’t

Legal Inst. v. Epel, 793 F.3d 1169 (10th Cir. 2015).

Likewise, Massachusetts just enacted a law governing

the manner in which farms in other States raise

poultry, hogs, and calves. Indiana v. Massachusetts,

No. 22O149 (U.S. 2017). If this Court continues

12

declines to intervene, more States will enact

extraterritorial regulations of agriculture and

industry, leading to increased interstate friction and

rivalry.

This Court thus should grant review in this case

and in the other pending cases presenting these

important federal issues. This Court often grants

review when a pattern of cases raises the possibility

that many states will engage in similar practices if

this Court does not intervene. Wyoming v. Oklahoma,

502 U.S. 437, 453–54 (1992).

CONCLUSION

The petition for writ of certiorari should be

granted.

13

Respectfully submitted,

JOSHUA D. HAWLEY

Attorney General

D. John Sauer

First Assistant and

Solicitor General

Counsel of Record

Julie Marie Blake

Joshua M. Divine

Deputy Solicitors General

OFFICE OF THE MISSOURI

ATTORNEY GENERAL

Supreme Court Building

207 West High Street

P.O. Box 899

Jefferson City, MO 65102

John.Sauer@ago.mo.gov

(573) 751-8870

April 12, 2018

Counsel for Amicus Curiae

State of Missouri

APP-1

LESLIE RUTLEDGE

Attorney General of

Arkansas

WAYNE STENEHJEM

Attorney General of

North Dakota

CURTIS T. HILL, JR.

Attorney General of

Indiana

ALAN WILSON

Attorney General of

South Carolina

BILL SCHUETTE

Attorney General of

Michigan

KEN PAXTON

Attorney General of

Texas

TIMOTHY C. FOX

Attorney General of

Montana

SEAN D. REYES

Attorney General of

Utah

MIKE HUNTER

Attorney General of

Oklahoma

PATRICK MORRISEY

Attorney General of

West Virginia