# NPPC v. Ross/Opinion of Chief Justice Roberts

SUPREME COURT OF THE UNITED STATES
No. 21–468
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. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [May 11, 2023]
Chief Justice Roberts, with whom Justice Alito, Justice Kavanaugh, and Justice Jackson join, concurring in part and dissenting in part.
I agree with the Court’s view in its thoughtful opinion that many of the leading cases invoking the dormant Commerce Clause are properly read as invalidating statutes that promoted economic protectionism. See ante, at 8–11. I also agree with the Court’s conclusion that our precedent does not support a per se rule against state laws with “extraterritorial” effects. See ante, at 11–14. But I cannot agree with the approach adopted by some of my colleagues to analyzing petitioners’ claim based on Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). See ante, at 15–27 (opinion of Gorsuch, J.); ante, at 3 (Sotomayor, J., concurring in part); ante, at 1–2 (Barrett, J., concurring in part).
Pike provides that nondiscriminatory state regulations are valid under the Commerce Clause “unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” 397 U. S., at 142. A majority of the Court thinks that petitioners’ complaint does not make for “an auspicious start” on that claim. Ante, at 18. In my view, that is through no fault of their own. ​The Ninth Circuit misapplied our existing Pike jurisprudence in evaluating petitioners’ allegations. I would find that petitioners’ have plausibly alleged a substantial burden against interstate commerce, and would therefore vacate the judgment and remand the case for the court below to decide whether petitioners have stated a claim under Pike.
I
The Ninth Circuit stated that “[w]hile the dormant Commerce Clause is not yet a dead letter, it is moving in that direction.” 6 F. 4th 1021, 1033 (2021). Today’s majority does not pull the plug. For good reason: Although Pike is susceptible to misapplication as a freewheeling judicial weighing of benefits and burdens, it also reflects the basic concern of our Commerce Clause jurisprudence that there be “free private trade in the national marketplace.” General Motors Corp. v. Tracy, 519 U. S. 278, 287 (1997) (quoting Reeves, Inc. v. Stake, 447 U. S. 429, 437 (1980)); see also Hunt v. Washington State Apple Advertising Comm’n, 432 U. S. 333, 350 (1977) (Pike protects “a national ‘common market’ ”). “Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his exports, and no foreign state will by customs duties or regulations exclude them.” H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 539 (1949).
The majority’s discussion of our Pike jurisprudence highlights two types of cases: those involving discriminatory state laws and those implicating the “instrumentalities of interstate transportation.” Ante, at 17, n. 2. But Pike has not been so narrowly typecast. As a majority of the Court acknowledges, “we generally leave the courtroom door open to plaintiffs invoking the rule in Pike, that even nondiscriminatory burdens on commerce may be struck down on a ​showing that those burdens clearly outweigh the benefits of a state or local practice.” Department of Revenue of Ky. v. Davis, 553 U. S. 328, 353 (2008); see also United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority, 550 U. S. 330, 346 (2007) (plurality opinion) (Pike applies to “a nondiscriminatory statute like this one”). Nor have our cases applied Pike only where a State regulates the instrumentalities of transportation. Pike itself addressed an Arizona law regulating cantaloupe packaging. See 397 U. S., at 138. And we have since applied Pike to invalidate nondiscriminatory state laws that do not concern transportation. Edgar v. MITE Corp., 457 U. S. 624, 643–646 (1982). As a majority of the Court agrees, Pike extends beyond laws either concerning discrimination or governing interstate transportation. See ante, at 2 (opinion of Sotomayor, J.); post, at 1–2 (Kavanaugh, J., concurring in part and dissenting in part).
Speaking for three Members of the Court, Justice Gorsuch objects that balancing competing interests under Pike is simply an impossible judicial task. See ante, at 18–21. I certainly appreciate the concern, see United Haulers, 550 U. S., at 343, 347, but sometimes there is no avoiding the need to weigh seemingly incommensurable values. See, e.g., Schneider v. State (Town of Irvington), 308 U. S. 147, 162 (1939) (weighing “the purpose to keep the streets clean and of good appearance” against the “the constitutional protection of the freedom of speech and press”); Winston v. Lee, 470 U. S. 753, 760 (1985) (“The reasonableness” under the Fourth Amendment “of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual’s interests in privacy and security are weighed against society’s interests in conducting the procedure.”); Addington v. Texas, 441 U. S. 418, 425 (1979) (“In considering what standard should govern in a civil commitment proceeding, we must assess both the extent of the individual’s interest in not being involuntarily confined indefinitely and the ​state’s interest in committing the emotionally disturbed under a particular standard of proof.”). Here too, a majority of the Court agrees that it is possible to balance benefits and burdens under the approach set forth in Pike. See ante, at 2–3 (opinion of Sotomayor, J.); post, at 1–2 (opinion of Kavanaugh, J.).
II
This case comes before us on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, and in my view the court below erred in how it analyzed petitioners’ allegations under Pike. The Ninth Circuit reasoned that “[f]or dormant Commerce Clause purposes, laws that increase compliance costs, without more, do not constitute a significant burden on interstate commerce.” 6 F. 4th, at 1032. The panel then dismissed petitioners’ claim under Pike by concluding that the complaint alleged only an increase in compliance costs due to Proposition 12. 6 F. 4th, at 1033. But, as I read it, the complaint alleges more than simply an increase in “compliance costs,” unless such costs are defined to include all the fallout from a challenged regulatory regime. Petitioners identify broader, market-wide consequences of compliance—economic harms that our precedents have recognized can amount to a burden on interstate commerce. I would therefore find that petitioners have stated a substantial burden against interstate commerce, vacate the judgment below, and remand this case for the Ninth Circuit to consider whether petitioners have plausibly claimed that the burden alleged outweighs any “putative local interests” under Pike. 397 U. S., at 142.
A
Our precedents have long distinguished the costs of complying with a given state regulation from other economic harms to the interstate market. Bibb v. Navajo Freight Lines, Inc., 359 U. S. 520 (1959), illustrates the point. In ​that case, we considered an Illinois law requiring that trucks and trailers use a particular kind of mudguard. The “cost of installing” the mudguards was “$30 or more per vehicle,” amounting to “$4,500 to $45,840” for the trucking companies at issue. Id., at 525. But beyond documenting those direct costs of complying with the Illinois law, we also noted other derivative harms flowing from the regulation. The mudguard rule threatened “significant delay in an operation where prompt movement may be of the essence.” Id., at 527. Also, changing mudguard types when crossing into Illinois from a State with a different standard would require “two to four hours of labor” and could prove “exceedingly dangerous.” Ibid. We concluded that “[c]ost taken into consideration” together with those “other factors” could constitute a burden on interstate commerce. Id., at 526 (emphasis added). Subsequent cases followed Bibb’s logic by analyzing economic impact to the interstate market separately from immediate costs of compliance. See Kassel v. Consolidated Freightways Corp. of Del., 450 U. S. 662, 674 (1981) (plurality opinion) (separating “increas[ed] … costs” from the fact that the challenged “law may aggravate … the problem of highway accidents” in describing the burden on interstate commerce); Raymond Motor Transp., Inc. v. Rice, 434 U. S. 429, 445, and n. 21 (1978) (analyzing an increase in “cost” independently of other consequential effects, such as “slow[ing] the movement of goods”).
Pike itself did not conflate harms to the interstate market with compliance costs. In Pike, we analyzed an Arizona law requiring that cantaloupes grown in the State be packed prior to shipment across state lines. 397 U. S., at 138. We noted repeatedly that the regulation would require the appellee to construct an unneeded packing facility in Arizona at a cost of $200,000. Id., at 140, 144, 145. But we considered that cost together with the “nature” of a regulation “requiring business operations to be performed in the home ​State.” Id., at 145. The Court in Pike found both compliance costs and consequential market harms cognizable in determining whether the law at issue impermissibly burdened interstate commerce.
The derivative harms we have long considered in this context are in no sense “noneconomic.” Ante, at 27 (opinion of Gorsuch, J.). Regulations that “aggravate … the problem of highway accidents,” Kassel, 450 U. S., at 674, or “slow the movement of goods,” Rice, 434 U. S., at 445, impose economic burdens, even if those burdens may be difficult to quantify and may not arise immediately. Our cases provide no license to chalk up every economic harm—no matter how derivative—to a mere cost of compliance.
Nor can the foregoing cases be dismissed because they either involved the instrumentalities of transportation or a state law born of discriminatory purpose. As discussed above, we have applied Pike to state laws that neither concerned transportation nor discriminated against commerce. See Edgar, 457 U. S., at 643–646. The Pike balance may well come out differently when it comes to interstate transportation, an area presenting a strong interest in “national uniformity.” Tracy, 519 U. S., at 298, n. 12. But the error below does not concern a particular balancing of interests under Pike; it concerns how to analyze the burden on interstate commerce in the first place.
B
As in our prior cases, petitioners here allege both compliance costs and consequential harms to the interstate market. With respect to compliance costs, petitioners allege that Proposition 12 demands significant capital expenditures for farmers who wish to sell into California. “Producers … will need to spend” between $290 and $348 million “of additional capital in order to reconstruct their sow housing and overcome the productivity loss that Proposition 12 imposes.” App. to Pet. for Cert. 214a. All told, compliance ​will “increase production costs per pig by over $13 dollars per head, a 9.2% cost increase at the farm level.” Ibid.
Separate and apart from those costs, petitioners assert harms to the interstate market itself. The complaint alleges that the interstate pork market is so interconnected that producers will be “forced to comply” with Proposition 12, “even though some or even most of the cuts from a hog are sold in other States.” Id., at 213a; id., at 239a. Proposition 12 may not expressly regulate farmers operating out of State. But due to the nature of the national pork market, California has enacted rules that carry implications for producers as far flung as Indiana and North Carolina, whether or not they sell in California. The panel below acknowledged petitioners’ allegation that, “[a]s a practical matter, given the interconnected nature of the nationwide pork industry, all or most hog farmers will be forced to comply with California requirements.” 6 F. 4th, at 1028.
We have found such sweeping extraterritorial effects, even if not considered as a per se invalidation, to be pertinent in applying Pike. In Edgar, we assessed the constitutionality of an Illinois corporate takeover statute that authorized the secretary of state to scrutinize tender offers, even for transactions occurring wholly beyond the State’s borders. As the majority explains, only a plurality of the Court in Edgar concluded that the Illinois statute constituted a per se violation of the dormant Commerce Clause. See ante, at 14, n. 1. But a majority in Edgar analyzed those same extraterritorial effects under our approach in Pike, concluding that the “nationwide reach” of Illinois’s law constituted an “obvious burden … on interstate commerce.” 457 U. S., at 643. The Ninth Circuit did not consider whether, by effectively requiring compliance by farmers who do not even wish to ship their product into California, Proposition 12 has a “nationwide reach” similar to the regulation at issue in Edgar.
The complaint further alleges other harms that cannot ​fairly be characterized as mere costs of compliance but that the panel below seems to have treated as such. Because of Proposition 12’s square footage requirements, farms will be compelled to adopt group housing, which is likely to produce “worse health outcome[s]” and “sprea[d] pathogens and disease.” App. to Pet. for Cert. 229a. Such housing changes will also “upen[d] generations of animal husbandry, training, and knowledge.” Id., at 211a. And “[b]y preventing the use of breeding stalls during the 30 to 40 day period between weaning and confirmation of pregnancy, Proposition 12 puts sows at greater risk of injury and stress during the vulnerable stages of breeding and gestation.” Id., at 223a. These consequential threats to animal welfare and industry practice are difficult to quantify and are not susceptible to categorization as mere costs of compliance.
Writing for a plurality of the Court, Justice Gorsuch relies on this Court’s decision in Exxon Corp. v. Governor of Maryland, 437 U. S. 117 (1978), to conclude that petitioners’ complaint does not plead a substantial burden against interstate commerce. See ante, at 21–25; see also ante, at 3 (opinion of Sotomayor, J.) (also relying on Exxon). In Exxon, petroleum producers sued after Maryland prohibited their sale of retail gas within the State. 437 U. S., at 119. The Court concluded that “interstate commerce is not subjected to an impermissible burden simply because an otherwise valid regulation causes some business[es] to shift from one interstate supplier to another.” Id., at 127. Fair enough. But the complaint before us pleads facts going far beyond the allegations in Exxon. The producers in Exxon operated within Maryland and wished to continue doing so. By contrast, petitioners here allege that Proposition 12 will force compliance on farmers who do not wish to sell into the California market, exacerbate health issues in the national pig population, and undercut established operational practices. In my view, these allegations amount to economic harms against “the interstate market”—not just “particular ​interstate firms,” ibid.—such that they constitute a substantial burden under Pike. At the very least, the harms alleged by petitioners are categorically different from the cost of installing $30 mudguards, Bibb, 359 U. S., at 525, or of constructing a $200,000 cantaloupe packing facility, Pike, 397 U. S., at 140.
Justice Gorsuch asks what separates my approach from the per se extraterritoriality rule I reject. Ante, at 25. It is the difference between mere cross-border effects and broad impact requiring, in this case, compliance even by producers who do not wish to sell in the regulated market. And even then, we only invalidate a regulation if that burden proves “clearly excessive in relation to the putative local benefits.” Pike, 397 U. S., at 142. Adhering to that established approach in this case would not convert the inquiry into a per se rule against extraterritorial regulation.
Rather than analyze petitioners’ alleged harms to the interstate market on their own terms, the Ninth Circuit reasoned that the “crux” of the complaint is “the cost of compliance with Proposition 12.” 6 F. 4th, at 1033. Such “cost increases,” the panel below concluded, “do not qualify as a substantial burden to interstate commerce.” Ibid. Those statements ignore the industry-wide harms discussed above.
The panel below itself recognized that petitioners “plausibly alleged that Proposition 12 will have dramatic upstream effects and require pervasive changes to the pork production industry nationwide.” Ibid. Yet it nevertheless reduced the myriad harms detailed by petitioners in their complaint to so-called “compliance costs” and wrote them off as independently insufficient to state a claim under Pike. Our precedents do not support such an approach. A majority of the Court agrees that—were it possible to balance benefits and burdens in this context—petitioners have plausibly stated a substantial burden against interstate ​commerce. See ante, at 2 (opinion of Barrett, J.) (“The complaint plausibly alleges that Proposition 12’s costs are pervasive, burdensome, and will be felt primarily (but not exclusively) outside California.”). *** In my view, petitioners plausibly allege a substantial burden against interstate commerce. I would therefore remand the case for the Ninth Circuit to decide whether it is plausible that the “burden … is clearly excessive in relation to the putative local benefits.” Pike, 397 U. S., at 142.