Amicus Curiae Brief — National Pork Producers Council, et al., Petitioners v. Karen Ross, in Her Official Capacity as Secretary of the California Department of Food & Agriculture, et al.

Supreme Court briefAug 15, 2022

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No. 21-468

In the

Supreme Court of the United States

NATIONAL PORK PRODUCERS COUNCIL, ET AL.,

Petitioners,

KAREN ROSS, ET AL.,

Respondents.

_____________________________

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_____________________________

BRIEF OF AMICI CURIAE

NATIONAL LEAGUE OF CITIES,

U.S. CONFERENCE OF MAYORS, INTERNATIONAL

CITY/COUNTY MANAGEMENT ASSOCIATION, AND

INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION

IN SUPPORT OF RESPONDENTS

_______________________________

JOHN J. KORZEN

Counsel of Record

WAKE FOREST UNIVERSITY

SCHOOL OF LAW

APPELLATE ADVOCACY

CLINIC

Post Office Box 7206

Winston-Salem, NC 27109

(336) 758-5832

korzenjj@wfu.edu

Counsel for Amici Curiae

GibsonMoore Appellate Services, LLC

206 East Cary Street♦ Richmond, VA 23219

804-249-7770 ♦

www.gibsonmoore.net

TABLE OF CONTENTS

Page:

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICI CURIAE ............................... 1

INTRODUCTION AND SUMMARY

OF ARGUMENT ........................................................ 2

ARGUMENT .............................................................. 3

I. Petitioners’ proposed extraterritorial rule

would jeopardize countless types of local laws

that protect the public .......................................... 3

A. Affordable rental housing ............................... 4

B. Graffiti ............................................................. 6

C. Hazardous materials ....................................... 6

D. Puppy mills ...................................................... 9

CONCLUSION ......................................................... 11

TABLE OF AUTHORITIES

Page(s):

Cases:

Berman v. Parker,

348 U.S. 26 (1954) ................................................. 3

Energy & Envtl. Legal Inst. v. Epel,

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

IMS Health Inc. v. Mills,

616 F.3d 7 (1st Cir. 2010), vacated on other

grounds sub nom., IMS Health, Inc. v.

Schneider, 564 U.S. 1051 (2011) .......................... 3

Levin Richmond Terminal Corp. v.

City of Richmond,

482 F. Supp. 3d 944 (N.D. Cal. 2020) ................... 8

Nat’l Paint & Coatings Ass'n v. City of Chicago,

45 F.3d 1124 (7th Cir. 1995) ................................. 6

New York Pet Welfare Ass’n v. City of New York,

850 F.3d 79 (2d Cir. 2017) .................................. 10

Park Pet Shop, Inc. v. City of Chicago,

872 F.3d 495 (7th Cir. 2017) ................................. 9

Portland Pipe Line Corp. v.

City of South Portland,

332 F. Supp. 3d 264 (D. Me. 2018) ................... 7, 8

Rosenblatt v. City of Santa Monica,

940 F.3d 439 (9th Cir. 2019) ............................. 4, 5

Sherwin-Williams Co. v.

City and Cnty. of San Francisco,

857 F. Supp. 1355 (N.D. Cal. 1994) ...................... 6

iii

Stroman Realty, Inc. v. Allison,

No. 4-15-0501, 2017 WL 2589983

(Ill. App. Ct. 4th Dist. June 13, 2017) .................. 5

Vincenty v. Bloomberg,

476 F.3d 74 (2d Cir. 2007) .................................... 6

Other:

Airbnb Regulations by City [2022],

ALLTHEROOMS,

https://www.alltherooms.com/analytics/airbnbregulations (last visited Aug. 11, 2022) ..................... 4

Gary Baker, The Airbnb Effect on Housing and

Rent, FORBES (Feb. 21, 2020, 6:54 AM),

https://www.forbes.com/sites/garybarker/2020/02/

21/the-airbnb-effect-on-housing-andrent/?sh=7a1c521b2226.............................................. 4

George F. Gramling, III & William L. Earl,

Cleaning Up After Federal and State Pollution

Programs: Local Government Hazardous Waste

Regulation, 17 Stetson L. Rev. 639 (1988) ............. 6-7

Josh Bivens, The Economic Costs and Benefits of

Airbnb, ECONOMIC POLICY INSTITUTE

(Jan. 30, 2019),

https://files.epi.org/pdf/157766.pdf. ........................... 4

Michael Casey & Carolyn Thompson, Rents Spike

as Large Corporate Investors Buy Mobile Home

Parks, PBS (July 25, 2022, 3:25 PM),

https://www.pbs.org/newshour/economy/rentsspike-as-large-corporate-investors-buy-mobilehome-parks ................................................................. 5

Mike Maciag, From Police Shootings to

Playground Injuries, Lawsuits Drain Cities’

Budgets, GOVERNING (Oct. 12, 2016),

https://www.governing.com/archive/govgovernment-lawsuits-settlements.html .................... 2

More Localities End Puppy Mill Sales in Pet

Stores, Taking Total to More Than 350, THE

HUMANE SOCIETY OF THE UNITED STATES: A

HUMANE WORLD (Mar. 25, 2020),

https://blog.humanesociety.org/2020/03/morelocalities-end-puppy-mill-sales-in-pet-storestaking-total-to-more-than-350.html? Credit

=blog_post _033120 _id11312 .................................. 10

More Puppies More Profits, ASPCA: BARRED

FROM LOVE,

https://www.aspca.org/barred-from-love/puppymills-101/more-puppies-more-profits

(last visited Aug. 9, 2022) .......................................... 9

William B. Johnson, Annotation, Validity of Local

Regulation of Hazardous Waste,

67 A.L.R.4th 822 (1989) ............................................. 7

INTEREST OF AMICI CURIAE 1

The National League of Cities (“NLC”) is dedicated

to helping city leaders build better communities. NLC

is a resource and advocate for 19,000 cities, towns,

and villages, representing more than 218 million

Americans.

The U.S. Conference of Mayors (“USCM”), founded

in 1932, is the official nonpartisan organization of all

United States cities with a population of more than

30,000 people, which includes more than 1,200 cities

at present. Each city is represented in USCM by its

chief elected official, the mayor.

The International City/County Management

Association (“ICMA”) is a nonprofit professional and

educational organization of more than 9,000

appointed chief executives and assistants serving

cities, counties, towns, and regional entities. ICMA’s

mission is to create excellence in local governance by

advocating and developing the professional

management of local governments throughout the

world.

The International Municipal Lawyers Association

(“IMLA”) has been an advocate and resource for local

government attorneys since 1935. Owned solely by its

more than 2,500 members, IMLA serves as an

international clearinghouse for legal information and

cooperation on municipal legal matters.

1 This brief was prepared by counsel for amici curiae and not by

counsel for any party. No outside contributions were made to the

preparation or submission of this brief. All parties have given

written consent to the filing of this brief.

Here, NLC, USCM, ICMA, and IMLA offer their

perspective on why the extraterritorial rule sought by

Petitioners would harm local governments.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Amici fully agree with the State Respondents that

“Petitioners’ arguments for an expansive new

extraterritoriality doctrine lack merit.” See Br. for the

State Resps. at 19-36. And amici fully agree with the

Intervenor Respondents that “Petitioners would

radically expand the dormant Commerce Clause” and

“Petitioners’ proposed theory of extraterritoriality

defies law and logic.” See Br. for Intervenor Resps. at

11-32.

Amici write separately to describe local ordinances

in a variety of areas that have faced dormant

Commerce Clause challenges. It is not only the States

that are subjected to dormant Commerce Clause

litigation. While local governments have withstood

many such challenges in the past, the ordinances

described below—and many others—could be stricken

under the expansive extraterritoriality rule sought by

Petitioners.

At the very least, under Petitioners’ rule,

municipalities would face an increase of costly

litigation, something they can ill afford. See, e.g., Mike

Maciag, From Police Shootings to Playground Injuries,

Lawsuits Drain Cities’ Budgets, GOVERNING (Oct. 12,

2016),

https://www.governing.com/archive/govgovernment-lawsuits-settlements.html (“In large cities

across the country, court challenges can be a drain on

municipal coffers. . . . It’s a big problem, and it’s not

getting any better.”).

ARGUMENT

Municipal governments necessarily have broad

police powers. See, e.g., Berman v. Parker, 348 U.S.

26, 32 (1954) (“Public safety, public health, morality,

peace and quiet, law and order—these are some of the

more conspicuous examples of the traditional

application of the police power to municipal affairs.

Yet they merely illustrate the scope of the power and

do not delimit it.”). The expansive extraterritoriality

doctrine sought by Petitioners would infringe on those

powers.

The Baldwin-Healy line of cases invoked by

Petitioners has been the “most dormant” aspect of

dormant Commerce Clause jurisprudence. Energy &

Envtl. Legal Inst. v. Epel, 793 F.3d 1169, 1172 (10th

Cir. 2015) (Gorsuch, J.); IMS Health Inc. v. Mills, 616

F.3d 7, 29 n.27 (1st Cir. 2010) (“Extraterritoriality has

been the dormant branch of the dormant Commerce

Clause.”), vacated on other grounds sub nom. IMS

Health, Inc. v. Schneider, 564 U.S. 1051 (2011). The

Court should reject Petitioners’ attempt to weaponize

that line of cases.

I. Petitioners’ proposed extraterritorial rule

would jeopardize countless types of local

laws that protect the public.

The broad extraterritoriality rule sought by

Petitioners would threaten commonsense regulations

in a wide variety of areas addressed by local

governments, such as ammunition, child/forced labor,

commercial gambling, fur products, recycled content,

renewable energy, stolen property, toxic products,

waste disposal, and wildlife trafficking. Amici

highlight just a few examples here: laws addressing

affordable rental housing, graffiti, hazardous wastes,

and puppy mills.

A. Affordable rental housing

Problems caused by short-term rentals are plaguing

many localities. These harms include long-term rent

increases, decreased local government tax revenues,

negative externalities imposed on neighbors, and

declining job quantities and qualities. Josh Bivens, The

Economic Costs and Benefits of Airbnb, ECONOMIC

POLICY

INSTITUTE

(Jan.

30,

2019),

https://files.epi.org/pdf/157766.pdf. The damage from

an increasing short-term property rental industry has

become so pervasive that Forbes dubbed it the “Airbnb

effect”—drawing parallels between “over-tourism” and

gentrification. Gary Baker, The Airbnb Effect on

Housing and Rent, FORBES (Feb. 21, 2020, 6:54 AM),

https://www.forbes.com/sites/garybarker/2020/02/21/th

e-airbnb-effect-on-housing-andrent/?sh=7a1c521b2226.

In light of these harms, many localities have

passed short-term rental regulations. See, e.g., Airbnb

Regulations by City [2022], ALLTHEROOMS,

https://www.alltherooms.com/analytics/airbnbregulations (last visited Aug. 11, 2022). The City of

Santa Monica, for example, in an attempt to preserve

housing availability and encourage “active” residents

of the community, passed an ordinance to restrict

short-term rentals. Rosenblatt v. City of Santa

Monica, 940 F.3d 439, 443 (9th Cir. 2019). Though

95% of the rental transactions involved an out-ofstate party, the ordinance survived a dormant

Commerce Clause challenge because it penalized only

conduct within the city and thus was not a direct

regulation of interstate commerce. Id. at 445-46.

Rosenblatt demonstrates that the out-of-state

effects of regulating in-state conduct should not, on

their own, suffice to invalidate a law under the

extraterritoriality doctrine (indeed, these effects are

likely unavoidable). Direct regulation of out-of-state

conduct does. See id. at 445; Stroman Realty, Inc. v.

Allison, No. 4-15-0501, 2017 WL 2589983 (Ill. App. Ct.

4th Dist. June 13, 2017) (holding that application of

Illinois timeshare licensing rules to Texas resident

and his business was impermissible extraterritorial

application because neither resident’s business nor

the real estate in question was located within Illinois).

More recently, another disturbing trend—also

limiting the availability of affordable rental housing—

has emerged. National private equity firms and real

estate investment trusts have begun to “swoop in to buy

mobile home parks” and then dramatically raise the

rent on residents, many of whom have nowhere else to

go. See Michael Casey & Carolyn Thompson, Rents

Spike as Large Corporate Investors Buy Mobile Home

Parks,

PBS

(July

25,

2022,

3:25

PM),

https://www.pbs.org/newshour/economy/rents-spike-aslarge-corporate-investors-buy-mobile-home-parks.

Absentee owners provide fewer services, are harder to

reach, and frequently increase the rent. See id. Local

governments need the ability to protect their

constituents from such predatory practices by requiring

companies doing business in their jurisdictions to

comply with reasonable regulations. Petitioners’

expansive extraterritorial rule could subject such

efforts to curb national landlords to a dormant

Commerce Clause challenge.

B. Graffiti

Graffiti has long marred our cities. See, e.g.,

Vincenty v. Bloomberg, 476 F.3d 74, 80 (2d Cir. 2007)

(noting “evidence that, nationwide, graffiti is the most

common type of property vandalism, constituting 35%

of all property crimes . . . and that the annual cleanup costs total $8-15 billion”); Sherwin-Williams Co. v.

City and Cnty. of San Francisco, 857 F. Supp. 1355,

1357 (N.D. Cal. 1994) (“Graffiti vandalism—the

outrageous scarring of real property both public and

private with unintelligible markings made by

irresponsible persons—plagues San Francisco as it

does other cities in the United States and Europe.”).

In an effort to curb its growing graffiti problem,

the City of Chicago outlawed the sale of spray paint

in 1991. Nat’l Paint & Coatings Ass'n v. City of

Chicago, 45 F.3d 1124, 1126 (7th Cir. 1995). The law

survived a dormant Commerce Clause challenge—

despite its out-of-state effects—in part because it

applied to spray paint manufactured anywhere,

including within Illinois. Id. at 1132. In upholding the

Chicago ordinance, the Seventh Circuit emphasized,

“Because even ‘local’ activities displace the movement

of goods, services, funds, and people, almost every

state and local law—indeed, almost every private

transaction—affects interstate commerce.” Id. at

1130. Petitioners’ expansive extraterritoriality rule,

in contrast, would threaten such attempts to address

this serious local concern.

C. Hazardous materials

It has long been “evident that neither the federal

government nor the states can adequately identify

and keep pace with the mushrooming hazardous

waste problem.” George F. Gramling, III & William L.

Earl, Cleaning Up After Federal and State Pollution

Programs: Local Government Hazardous Waste

Regulation, 17 Stetson L. Rev. 639, 641 (1988). Local

government programs are necessary “to respond to

the problem of hazardous wastes.” Id. at 642.

Accordingly, local governments have regulated

hazardous wastes for decades. See generally William

B. Johnson, Annotation, Validity of Local Regulation

of Hazardous Waste, 67 A.L.R.4th 822, 824-25 (1989)

(collecting and analyzing cases in which “courts have

discussed the validity of local regulation of hazardous

waste” and noting that “[p]ublic awareness in recent

years of the problems resulting from the unregulated

disposal of hazardous waste has resulted in a wide

variety of federal, state, and local enactments”).

Local laws regarding hazardous waste have faced

dormant Commerce Clause challenges. For example,

a municipal ordinance in Portland, Maine prohibited

the “bulk loading of crude oil onto any marine tank

vessel” in parts of the city. Portland Pipe Line Corp.

v. City of South Portland, 332 F. Supp. 3d 264, 282-83

(D. Me. 2018). The ordinance responded to residents’

concerns regarding air pollution, tainted drinking

water, diminished property values, fumes from

pipeline operations, damage to the natural

environment, and the health and safety of children in

nearby schools. Id. at 279-80. The city council found

that bulk loading of crude oil would likely release

hazardous emissions that are known or anticipated

“to be ‘acutely or chronically toxic, carcinogenic,

mutagenic, teratogenic, or neurotoxic.’” Id. at 283.

Moreover, the tank facilities at issue were “in close

proximity to elementary schools, preschools, the

South Portland High School and athletic fields, a

community center, a large senior city housing facility,

and numerous residential districts,” all of which

would experience “air quality impacts associated with

the bulk loading of crude oil.” Id.

The plaintiff pipeline operator alleged that the

ordinance was per se invalid under the dormant

Commerce Clause because, “by plugging one end of a

cross border pipeline, the Ordinance stops trade

across three states and Quebec.” Id. at 292. The court

rejected that argument, holding that the ordinance

did not regulate extraterritorially even though it

would affect the pipeline operator’s ability to obtain

financing for its reversal project if it could not load oil

in South Portland. Id. at 297. The court reasoned that

in this “modern age of highly interconnected

commerce, there would be virtually no room for local

historic police powers if this sort of extraterritorial

effect were enough to invalidate an ordinance under

the dormant Commerce Clause.” Id. The ordinance's

“indirect

economic

effects

out-of-state

transactions” were the “natural implication of crossborder projects and local government control, not an

indication of unconstitutional extraterritorial

regulation.” Id. at 297-98.

In short, localities need the ability to address

hazardous wastes within their borders without facing

the threat of dormant Commerce Clause claims based

on incidental out-of-state effects. See also Levin

Richmond Terminal Corp. v. City of Richmond, 482 F.

Supp. 3d 944 (N.D. Cal. 2020) (granting motion to

dismiss extraterritoriality claim because there was no

viable extraterritoriality argument to city ordinance

regulating coal storage only within city limits).

Petitioners’ expansive extraterritorial rule would

threaten local governments’ ability to do so.

D. Puppy mills

Local laws addressing the scourge of puppy mills

have likewise faced dormant Commerce Clause

challenges. The City of Chicago addressed the harms

to pet owners caused by pet stores that “sourced their

animals from large mill-style breeders, which are

notorious for deplorable conditions and abusive

breeding practices.” Park Pet Shop, Inc. v. City of

Chicago, 872 F.3d 495, 498 (7th Cir. 2017). The city

council found that mill-bred pets developed health

and behavioral problems, leading to “economic and

emotional burdens for pet owners” and “financial

costs on the City as owners abandon their physically

or emotionally challenged pets.” Id.; see also More

Puppies More Profits, ASPCA: BARRED FROM

LOVE, https://www.aspca.org/barred-fromlove/puppy-mills-101/more-puppies-more-profits (last

visited Aug. 9, 2022) (stating that the negative

impacts of puppy mills include tiny cages, filthy

conditions, poor vet care, no grooming, no

socialization, nonstop breeding, sudden separation

from their young and littermates, stressful transport,

and no retirement programs).

In response to these problems, the city council

passed an ordinance “limit[ing] the sources from

which pet stores may obtain” animals for resale. Park

Pet Shop, 872 F.3d at 497. A Missouri dog breeder and

two Chicago pet stores joined forces to challenge the

ordinance as an unconstitutional regulation of

interstate commerce. Id. at 498. Despite being a

“significant restriction” that affected both out-of-state

and in-state pet breeders, the Seventh Circuit

concluded the law was a valid exercise of municipal

power because “Chicago ha[d] not attempted to

regulate beyond its borders.” Id. at 499, 503. New

York City’s pet source ordinance also faced—and

survived—a dormant Commerce Clause challenge.

See New York Pet Welfare Ass’n v. City of New York,

850 F.3d 79, 89-92 (2d Cir. 2017) (holding local

ordinance requiring pet shops to sell only animals

acquired from breeders holding Class A license under

Animal Welfare Act did not violate dormant

Commerce Clause).

Puppy mill laws exemplify how innovative local

ordinances that protect the public from various harms

can inspire similar initiatives throughout the

country, a true laboratories of democracy success

story. Now, more than 350 American localities and at

least

three

states—Maine,

Maryland,

and

California—“prohibit the sales of puppy mill dogs and

kittens in pet stores, despite aggressive attempts by

puppy mill interests to defeat them.” More Localities

End Puppy Mill Sales in Pet Stores, Taking Total to

More Than 350, THE HUMANE SOCIETY OF THE UNITED

STATES:

HUMANE

WORLD (Mar.

25,

2020), https://blog.humanesociety.org/2020/03/morelocalities-end-puppy-mill-sales-in-pet-stores-takingtotal-to-more-than-350.html?

Credit

=blog_post

_033120 _id11312.

Petitioners’ expansive extraterritoriality rule,

however, would threaten all the sensible local

ordinances described above and more. For this reason

and the additional reasons addressed by the State

Respondents, the Intervenor Respondents, and other

amici, the Court should reject Petitioners’ “audacious

invitation” to expand the Baldwin-Healy line of

dormant Commerce Clause doctrine. See Epel, 793

F.3d at 1175.

CONCLUSION

The judgment below should be affirmed.