good morning mate please the court deputy attorney general renegade george on behalf of the palance i would like to reserve five minutes for rebuttal this court should reverse the district court's order for the following two reasons first appellants regulation of california bio hazardous waste generated by california health care facilities collected and stored in california at a medical waste treatment facility and transported disposed of by capped by daniels a california permitted entity does not constitute regulation of commerce occurring wholly outside of the state second appellants are not liable in their individual capacities for approximately one point three million dollars when they were not on notice that their particular actions were unconstitutional when undergoing a qualified immunity analysis the supreme court has cautioned against defining clearly established law at high levels of generality but rather it's whether the violated nature of the particular conduct is clearly established turning first to the question of extraterritoriality daniel says extended the reach of extraterritoriality as applied to the particular circumstances in this case beyond the limited scope established by press it generally courts have found have found extra territorial reach when when regulating states control sales in other states markets or when regulating states require a change in other states lost this law the medical waste act requires neither  does not control prices or sales in other states for instance daniels could dispose of another state's waste in a manner not permitted by the california medical waste eft and secondly the medical waste act does not require states to adopt california's medical waste disposal requirements for instance daniels could dispose of california's biohazardous medical waste in a state that itself does not impose requirements on its own waste you would agree with california's medical waste asked and so how does the consideration of voice in kentucky affect the residents of california well california is interest is that california has an act in the medical waste act california but california has adopted an even handed approach to how it how it deals with its own waste in that the waste must be incinerated whether it's in california or whether it goes outside of the state of california doesn't have an interest in how kentucky handles its own waste but it continues to retain an interest in its it's own waste in california's own waste well really isn't  to regulate the environmental laws of other states respectfully no this is california is merely taking responsibility for the public health hazards that are associated with its own waste and it with california's cradle to grave approach of sealing with its own waste which means that california is monitoring and tracking its waste from the moment that it is generated by california health care facilities in california to to the to the end disposal and this includes monitoring and tracking how the waste is generated where it's what it's where it's generated how it's picked up and collected by entities california permit permitted entities like sharp smart and then was lawful were it occurred and has no impact on alabama or its residents here you're punishing this corporation plainly and it would seem that the incineration in kentucky would have no direct effect on the allowed to apply its disclosure requirements to the cars that work fixed outside of the state of alabama propos were then sold in alabama so here looking at whether or not there's a nexus to the state of california there clearly is and this court has recognized and services such as as the ones in this case have a nexus to the regulating states the regulating state can impose conditions on the part of the performance that occurs outside of the  california health care facilities and the waste is collected and stored in california and then transported and disposed of by a california committed entity and the entire process is regulated and permitted by california and the medical waste to be different than what california is waste incineration well once well california's medical waste act does not require kentucky to have a law that complies with the california medical waste act so it in that way it does not affect how calif how kentucky rather would it would decide how to legislate how to regulate their disposing of their own waste in the instance where first question my question is if if the if the waste is shipped to kentucky and then it's incinerated in kentucky if kentucky has a law that says don't incinerate waste you know ship it to the moon or something like how do you deal with that well in that instance the waste could not be disposed of in kentucky but the dormant commerce clause doesn't protect specific operations of business it doesn't it's business in kentucky yes in this instance the they could not do just like that does not affect kentucky commerce because again the dormant commerce clause doesn't protect doesn't it's not dormant commerce clause is not meant to protect a specific mode of business or operation we see that in exxon we we've seen that in national association of up tom interests so it's not again the key inquiry is whether or not this regulates wholly out of state commerce and it and it does not because there of the of the several nexus points to the state of california turning now to the question of qualified immunity even assuming argument joe that appellant's do not succeed on the first prong of qualified immunity they are still entitle to the protection of qualified immunity appellants do succeed on the second  a reasonable official would not have notice that that he or she was violating he was violating clearly established law appellants only need to succeed on one prong regardless of this court's determination on the ability of the dormant commerce clause of the medical waste act appellants are not liable in their individual capacities for approximately one point three million dollars for following the dictates of statutory language and legislative intent the parents are not on notice for three reasons first as the supreme court held in white the pauli existing president must have placed the constitutional question beyond debate here the application of the extraterritoriality doctrine to the regulatory scheme at issue was not beyond debate again looking at these cases in a spectrum with sam franks's on one end and valley bank and and graft quick and s t myers on the other end we see that the question of and whether or not this is commerce that occurs wholly out of the state is not beyond constitutional debate we know from san francisco that if there is no nexus that that that then the state may be the state law may have extra territorial circumstances second there was certainly no clearly established precedent that would put appellants on notice that their particular actions in enforcing the medical as waste act as to california's waste collected in california and disposed of by a california permitted entity would be violative of the dormant commerce clause again as the supreme court has said and white the pauli cautioned against defining clearly established law at a high level of generality rather the question is whether the violence of nature of the pool particular conduct is clearly established third finally there has been no judicial interpretation of the medical waste act since it's inaccurate twenty seven years ago as this court found in porter v brown where there hasn't been judicial interpretation on an issue of law interpretation of an official is not unreasonable otherwise officials are in this untenable position of having to of having to determine whether there's a risk to a possible one thousand nine hundred three action for violating the dormant commerce clause or failing to uphold california law and i see that i am down to four minutes now so i'd like to reserve the rest of their time thank you thank you  generation of waste in california it is not of the transportation of waste within california the commerce a the issue is a simple transaction that occurred in kentucky and in indiana daniel had medical waste they went to a facility in kentucky and said we will pay you money if you take our we waste and treat it consistent with the laws of kentucky they went to a facility in indiana and said the same thing take our waste here's money treat it consistently with your permits and the laws of indiana that is the commercial transaction and the issue before the court as a first level and  gather the reason that you made that choice was it was less expensive absolutely and the and the issue here to focus is is that's transaction are those transactions wholly outside the state of california of course they are the state of california has no police power no local interest no nexus in that transaction part of the department's mistake here has been t focus on the medical waste management act as a whole this is not a facial attack on the medical waste management act in fact nothing that arises out of this case will in any way affect the act and its application in california this is a focused as applied attack on the department's effort to apply that act in indiana in kentucky and outside of california so now we can focus in on what the specific argument is that the department has presented for why it believes it should be able to apply california  commerce in kentucky and indiana and the general legal position is that california law should follow california waste the problem is there's no legal authority for that proposition none whatsoever in fact the supreme court in one thousand nine hundred four in seeing a carbone mentioned that a public entities police powers and at its borders and that generally speaking giving given the long line decades worth of restrictions by the states on waste exports imports the supreme court said that those restrictions on exports interfere with interstate commerce the idea that california laws follow the wastes that daniels takes to kentucky and indiana hasn't been executed at all by the department there hasn't been any authority from either this circuit or certainly from the supreme court that describes how that could both comply with and intersect with the commerce clause well there are circumstances in which  stay laws do have extraterritorial effect because if you take fisheries for example and those the actions and terms of fisheries happen offshore but california regulates a business so california's argument is you know you can you can dispose the waste of wherever you want to but we're going to fine you if you do it in and in a way we think is improper what's wrong with that there's nothing wrong with that your honor in fact that would be within the state's police powers if it believed that the health safety environment of california for californians was impacted for example one could imagine a waste treatment facility on the border between the vat in california california might say that's a metal by which the waste treatment is treated at that facility impacts california and there's similar arguments made in the rocky mountain versus cory case about greenhouse gases and greenhouse gases emitted from other states how they might impact californians with respect to these transactions there has not been positive nor could there be any effect on california or californians and the absence of a police power in this case for the benefits of californians i think is dispositive so let's turn to qualified immunity we don't have a controlling case the act hasn't been interpreted why should qualified immunity not apply in this case so let's start with your honor's question about the asinine being interpreted this lawsuit has nothing to do with what the act says or doesn't say and we went through in our we explained how the x clearly delineates between the export of waste to a foreign country and which california law could apply and export to other states in which case the only inquiry of the state was whether or not the receiving facility had a permit but let's put that aside and go directly to the qualified immunity issue which is what an ordinary reasonable official understand based upon the state of the law in this circuit that they cannot apply california law extraterritoriality to kentucky and indiana and other states outside of california and i'd like to start with the two primary cases from this circuit and the first would be rocky mountain versus cory and i start with that case for the following reasons first of all it was in two thousand and thirteen and the court expressly recognized both in c n a carbone and in the seventh circuit case myers that states have in the past attempted to set a bar for environmental compliance that has run up against commerce clause challenges but rocky mountain said that the extraterritoriality doctrine did not apply in those cases specifically i'm sorry with respect to the greenhouse gas emissions saturated in california because it was a california statute intended to protect californians in fact there have been a series of cases from the ninth circuit concerning shark fins and fog wall were alternately the extraterritorial effect of that statute did not win out and did not trigger the dormant commerce clause because it was the interest of californians and california that was at stake so rocky mountain recognized the principle that the dormant commerce clause applies in environmental areas but simply said this is a law the fuel standard law greenhouse gas emissions law to protect california and californians so a line has been drawn by the ninth circuit and then we move to the decision of this court in san francisco and this was in may two thousand and fifteen this was several months before the department acted in issued a five hundred sixty seven thousand dollars penalty against daniels and in that case once again this court clearly recognized the extraterritoriality doctrine the state cannot hacked eat outside the state and affect commerce and in that particular case the statute it is to dealt with a royalty that sellers of art would have to pay in transactions and the court recognized that the statute at issue from california would affect transactions wholly out of state the court posited a transaction where there was a piece of art in let's say new york and it was sold to a buyer from another state outside of california and that sales transaction took place outside of california and the court ruled correctly that that triggered the extraterritoriality doctrine and could not be  so between these two cases in the ninth circuit the department should have known would have known objectively that it cannot under any set of facts regulate daniel right to go to kentucky and indiana and to pay for waste treatment but in fact as the district court found the history of the extraterritoriality doctrine goes back much much much further it starts really with edgar versus mights i believe it was in one thousand nine hundred eighty two and this was a case that had nothing to do with pricing it had to do with the state of illinois effort to prohibit stock tender offers when there was a certain number of shareholders that might be impacted in illinois and there the court noted that that had a extraterritorial effect that would violate the dormant commerce clause because the maker of the tender offer was therefore being restricted in regulated from entering into stock transactions that might not have anything to do with illinois citizens then the district court as well is this court in rocky union actually had a very nice history of the application of the dormant commerce clause in these kinds of cases there was the brown foreman case and the healey case these were both price affirmation statutes where the court struck down efforts of one state that would affect pricing and sales occurring in entirely different state now throughout these cases there is an  authority the clearly established law cannot be established that a high level of generality your honor i think in this way  the idea that a state cannot regulate outside its borders is not at a high level of generality i think that in this particular case the rule has implied in every single context pricing price affirmation tender offers environmental settings it's been recommended it's been recognized in every single setting i don't believe that the supreme court would require a case specific to the medical waste management act or medical waste specifically and i think that for a second reason as well the case is recently from the supreme court that say that qualified immunity should apply in less there is a case at a more specific level of application arises in many of these cases are excessive force cases and other cases where you have state officers who are acting at a blink of an eye they've got to make quick fast decisions they've got to balance risks and benefits of caring for their police powers as they see fit and under that set of facts it absolutely makes sense to require a level of specificity so that the officials know exactly where they stand before they carry out their duties is far removed from that set of facts that we have here where we have the department under no time pressure whatsoever and having complete ability to take the measure of the law and nationwide in the certain the supreme court to determine whether or not there's a specific set of facts falls within this general principle of law that as i've said has been applied in each and every setting where in fact there has been  transaction entirely outside the state to the extent that there's any disagreement about the extraterritoriality doctrine if not does it apply or when does apply it just triggers a question as to whether or not the statute in question really is extraterritorial or not and rocky mountain is the best example of that there was lots of back and forth on whether or not and on paanch review should be granted based on whether or not in fact this california statute on the carbon content of fuels really did or did not affect transactions wholly outside of california in this particular cas in healy in brown foreman and editor versus might in san francisco that was beyond reproach there was no question that those transactions were outside of california and i would just point out as one of my final comments here that there has not been a single case cited from any court and any jurisdiction where the court has affirmed a public action a law or regulation that affects a commercial transaction wholly outside of the state and given the lack of a forty on that topic that there's no risks and benefits that a public official would need to weigh it is as we s our brief simply a question of a public official looking at a map of the fifty states and seeing whether the transaction falls within california or falls without california and for that reason we believe that the district daniels has oversimplified the holy out of state question here upon are not on notice that their actions were violated of the dormant commerce clause as judge will pointed out the supreme court has cautioned against defining clearly established law at a high level of generality and so it's not simply enough to say that the extraterritoriality doctrine was clearly established it's whether or not it was clearly established the particular circumstances in this case and and in terms of the facts in this case under review so looking at the question of nexus again taking into account that the these cases fall on a spectrum with with same francis  the one hand where there was no nexus but then looking at that we bank and graphic with on the other end it would be very difficult for an official to know that there are that there are actions with respect to california waste that cradle to grave approach with respect to its waste an official would not have been on notice that their particular actions in this case were violative of the dormant commerce clause second daniels has said that the medical waste act doesn't matter but it does because the opponents were applying the medical waste act and its requirement for incineration and as we said earlier the medical waste act has not been interpreted in  the twenty seven years of its anathema and and so where the act requires incineration a public official acting in good faith must assume that the law is valid especially again given that there was so much next this to california plays a role versus it's not as it's not really part of the key inquiry here the key in korea is whether or not this was commerce occurring wholly out of the state and as daniel has admitted in its own answering brief this the it would be very difficult for an official to do the balancing inquiry involved in in determining you know what california's interest was but but it's but but it's not but that's not a factor in the wholly out of state in the question of whether or not this conduct was wholly out of state it should also be noted that daniels also interpreted the law as such until two thousand and fourteen they were incinerating their waste for years