Transcript

IN THE SUPREME COURT OF THE UNITED STATES

MINNESOTA, Petitioner, v. CLOVER LEAF CREAMERY COMPANY ET AL., Respondents

No. 79-1171

November 3, 1980

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:01 o'clock p.m.

APPEARANCES:

KENNETH E. RASCHKE, JR., ESQ., Assistant Attorney General, State of Minnesota, 102 State Capitol Building, St. Paul, Minnesota 55155; on behalf of the Petitioner.

HARLON L. DALTON, ESQ., Office of the Solicitor General, Department of Justice, Washington, D.C. 20530; on behalf of the United States as Amicus Curiae.

LEONARD J. KEYES, ESQ., Briggs & Morgan, 2200 First National Bank Building, Saint Paul, Minnesota 55101; on behalf of the Respondents.

PROCEEDINGS

MR. CHIEF JUSTICE BURGER: We will hear arguments next in No. 79-1171, Minnesota v. Clover Leaf.

Gentlemen, since we have only about four minutes left we will not ask you to split your argument. We will take your case up at 1 o'clock, after the lunch hour.

(Recess)

MR. CHIEF JUSTICE BURGER: Mr. Raschke, you may proceed whenever you're ready.

ORAL ARGUMENT OF KENNETH E. RASCHKE, JR., ESQ., ON BEHALF OF THE PETITIONER

MR. RASCHKE: Thank you, Mr. Chief Justice, and may it please the Court:

The State of Minnesota is here today asking this Court to review and reverse a decision of the Minnesota Supreme Court which struck down supposedly on equal protection grounds a Minnesota law which would have stopped the sale at retail in Minnesota of milk in single-use throwaway bottles which are made 100 percent from oil and natural gas resources.

In reality, however, this case deals with the question of whether we should return to the days when the courts under the banner of substantive due process interposed their judgment upon the legislature in terms of determining the wisdom and expediency of given pieces of legislation and weighing evidence and testimony pro and con to determine whether a particular piece of legislation will best do the job set out for it.

The statute in question was proposed by the Minnesota Pollution Control Agency and passed by the Legislature in the spring of 1977 as an implementation of general State policy and additionally as a reaction to a specific set of circumstances which were then existing within the State.

In general, the agency and the Legislature recognized the ridiculous waste of resources and energy, and particularly fossil fuels, in many circumstances, as well as the unnecessary disposal problems which had been created by the proliferation of single-use packaging which serves no other purpose but convenience. The legislative policy was to discourage such packaging, and the plastic jug here in issue is a prime example of that type of a package; and encourage better alternatives where they're available, in this case alternatives such as returnable containers either in plastic or glass, which have a long history in the milk industry.

QUESTION: Do you think the Minnesota Legislature is about next time to ban paper containers?

MR. RASCHKE: Do I personally feel they were, Your Honor?

QUESTION: Well, whether -- was there legislation introduced to that effect in the session in which this one was passed?

MR. RASCHKE: This bill originally was introduced in the form of banning specifically the plastic jug in reaction to a then-pending move by major dairies within the State to commit a lot of money and capital expenditures in long-term commitments to the throwaway plastic jug.

At one point in time there was an amendment proposed that would have banned paper but it passed in the form originally introduced banning only the plastic jug. I think the idea was to wait and see what sort of effect this Act would have had.

QUESTION: Well, the milk industry and the pulpwood industry in Minnesota both have clout, and -- I guess my question is, how political this is, rather than how environmentally protective?

MR. RASCHKE: Well, I don't think it was necessarily at all political in the sense of reacting without legitimate policy to specific pressure groups. I think it was clear from the motives of the agencies that supported the bill as well as many of the statements made in debate that the idea of the bill was to stop a trend that the Legislature and the agency saw as harmful. And that was the situation in which we were committing ourselves to going down the road of throwaway containers which would -- all parties, I think, here, concede that it was not the best environmental alternative.

The specific situation that the Legislature was reacting to, as I indicated in my prior answer, is that the milk industry, major dairies within the State, were on the verge of spending hundreds of thousands of dollars in commitment to long-term production of these plastic jugs, and the machinery necessary to produce these plastic jugs is both expensive and has a long useful life.

QUESTION: Production within the State?

MR. RASCHKE: Production within the State; that's true. It was recognized that the paper container is not the environmental ideal. The paper container became common during the 1960s. However, it was further recognized that to permit this move to plastic would lock us into a situation which would virtually eliminate any chance of movement to environmentally preferable alternatives.

QUESTION: Are the paper-type containers divided into two categories, one readily destructible and the other not so readily destructible?

MR. RASCHKE: To my knowledge, Your Honor, there's only one sort of paper container which was at issue. We talk primarily about the gallon-size container because the plastic is only sold in gallon-size, and the data and the studies only contained -- there was one sort of paper container. The Act was never permitted to take effect because this trial was commenced in the fall of 1977 before the 1978 effective date.

The '78 trial took on what can best be described as the tone of the legislative hearing. There were copious amounts of data, government reports, which were used -- the same reports used by both sides in supporting their positions.

Opinions, expert and non-expert alike, were offered on the question of whether the plastic jug is the single worst container from an environmental standpoint or merely the second-worst container possible for the sale of milk. Speculation and ideas were offered concerning whether the milk industry would or would not have a greater tendency to go to preferable containers with or without the plastic jug. And when it was over --

QUESTION: General Raschke, does the record tell us what happened during the last three years? Did they all convert to plastic?

MR. RASCHKE: During the last three years while this case was in litigation, Your Honor?

QUESTION: Yes.

MR. RASCHKE: I don't believe the record reflects that at all. I'm not aware of anything in the record which makes reference.

QUESTION: If they have in fact all converted, as I guess they've been permitted to do, then the reason for the legislation would have passed, wouldn't it? The idea was to stop them from doing that.

MR. RASCHKE: Well, I think the idea, Your Honor, was to prevent the situation in which the industry was permitted to go ahead and make these types of investments and then later complain of the tremendous impact it would have on them to then come back and ban either the plastic or the paper.

I don't think that has significance in viewing the rational basis of the Legislature. Otherwise any attempt of this sort could be defeated by the regulated industry running out, making the commitments, and by defeating themselves in attempting to defeat the legislative purpose.

QUESTION: And the second question, this perhaps duplicates what Mr. Justice Blackmun asked, but as I understand it, part of the rationale was, you've to stop this because we're going to get rid of all disposable containers and paper containers would be next. Has there been any activity to get rid of the paper containers at all? Is there anything on the public record, subsequent to 1977?

MR. RASCHKE: There's nothing I'm aware of in the public record, Your Honor. I think what we're doing, or what may be happening is that the Legislature in the State of Minnesota as well as perhaps other places is waiting to see the outcome of this case, and to see whether the Legislature will indeed be permitted to proceed a step at a time. A look at the --

QUESTION: I don't see how the outcome, whichever way the case is decided, if the goal really is to get rid of these containers, I don't see any reason why they don't enact the second statute.

MR. RASCHKE: Well, I think the goal of the Legislature, Your Honor, is to proceed a step at a time beginning with the least intrusive sort of regulation. Now, this statute --

QUESTION: Of course, the least offensive regulation is to let the paper containers continue forever, I suppose.

MR. RASCHKE: In -- well, in moving in the direction of our goal, this statute has never been permitted to take effect. We don't know whether it would have the salutary sort of effect that we hope for it.

QUESTION: In other words, you can't take the next step until this case is resolved, is that your point?

MR. RASCHKE: I think that's a fair statement, Your Honor. I think the legislation --

QUESTION: But I don't understand why not. If you want to get rid of disposable containers, why don't you say, no paper containers after five years, or whatever the time would be? I just don't understand it.

MR. RASCHKE: That could be done, Your Honor. My point is that I don't believe that it is a point of constitutional significance, but --

QUESTION: Well, it would remove the constitutional argument that your court relied on.

MR. RASCHKE: That's perhaps --

QUESTION: It would remove any constitutional question and it would clearly accomplish your environmental goal. The fact that you don't do it makes one wonder whether that's really the purpose of the legislation.

MR. RASCHKE: There are a number of other factors. Both the parties here that have been selling milk in plastic containers and other dairies, most other dairies in the State of Minnesota, are selling milk in paper containers, either paper containers in addition to plastic or paper containers themselves. And one of the rational reasons why the Legislature could well have chosen to first halt plastic and hope for some voluntary movement towards better containers is that if you pick a point in time and ban both plastic and the paper containers at the same time you've got almost every dairy in Minnesota scrambling to convert. And I think it's reasonable for the Legislature to take the point of view that we'll stop the plastic container, which is the single greatest competitive enemy to better containers.

The record shows that at least in other states the plastic throwaway jug has made its gains at the expense of returnables. One party, Wells Dairy from Iowa, purchased a plant which was producing in pouch-type containers, which the data shows are environmentally preferable, and discontinued that in order to go to the plastic.

So, hopefully, if we remove the greatest single competitive enemy to more environmentally sound containers, there may be some voluntary movement in that area. And I think that's a judgment that the Legislature is entitled to make. Certainly the option that you suggest and the option that was suggested by the Minnesota Supreme Court would more quickly accomplish the environmental goal, but I think that it's at the expense of other things.

I think the past decisions of this Court in many cases permits the Legislature to choose a step at a time approach if it feels that that is called for in the given situation.

QUESTION: May I interrupt you for a minute?

MR. RASCHKE: You may.

QUESTION: You make the argument that the Minnesota Supreme Court decided this case on substantive due process analysis, and I would certainly agree there's a good deal of language in the opinion that I would construe that way. And yet I also read the opinion of the trial court saying positively that the purpose of the statute, despite what the Legislature said, was discriminatory. Its purpose was to discriminate against the plastic industry, not represented in Minnesota, but outside of that State. And the findings of fact of the trial court were found by the Supreme Court on an independent review of the evidence to be incorrect. So what do we do with those findings?

MR. RASCHKE: I think there are a couple of problems, many problems, with the findings of the District Court. I think the problem with the District Court was that it clearly said that it felt it was its job to review, weigh, and balance the evidence, because the District Court saw itself as the initial fact finder. The Minnesota Supreme Court, first of all, did not I believe adopt the finding that the Act had a protectionist motive. I think the Supreme Court, our Supreme Court noted at A-35, I think it is, in the Appendix, that the Act unquestionably deals with a proper public purpose, thus rejecting the theory of the trial court.

But a problem that our Supreme Court shared with the trial court is that they tended to agree that the trial court was the basic fact finder rather than the Legislature. So it's our contention that based on opinions of this Court, recently reaffirmed in such cases as Exxon v. Governor of Maryland, City of New Orleans v. Dukes, is that it is the legislative judgment that must stand, so long as there's any rational basis to support it.

QUESTION: May I ask you this question about what the Supreme Court of Minnesota said? Look at page A-5 of the petition. Down near the middle of the paragraph that begins on the middle of that page.

MR. RASCHKE: 85, Your Honor?

QUESTION: A-5, the third sentence in the paragraph beginning, "We are aware." On A-5?

MR. RASCHKE: A-5?

QUESTION: Petition for certiorari?

MR. RASCHKE: Oh, petition for cert. I was looking at the Appendix. A-5?

QUESTION: It's the paragraph beginning, "We are aware"?

MR. RASCHKE: Yes, Your Honor.

QUESTION: The third sentence: "Based upon the relevant findings of fact by the trial court, supported by the record, and upon our own independent review of documentary sources, we believe the evidence conclusively demonstrates that the discrimination against plastic nonrefillables..." and then it goes on to pick up equal protection analysis which was the analysis relied upon primarily by the courts below. But the Commerce Clause issue is the one that concerns me, and I think that language by the Supreme Court can be read as confirming the finding of fact with respect to discrimination made by the trial court, unless you have some explanation for it that hasn't occurred to me at the moment.

MR. RASCHKE: Well, our Supreme Court did not reach the Commerce Clause issue and I guess I read that particular phrase as referring to what -- and what comes after, concerning --

QUESTION: Well, didn't the Supreme Court also say that specifically the stated legislative finding of the Act is that nonrefillable milk containers present solid waste problems and the stated legislative goal is that the use of returnable milk containers should be encouraged? And then it said, "The Act, undoubtedly, deals with legitimate State interests."

MR. RASCHKE: Yes, it did.

QUESTION: Isn't that inconsistent with the trial court's --

MR. RASCHKE: I think it's directly inconsistent, and I don't think by affirming, by saying that they were generally affirming the trial court's standards that they were getting to that point. The important thing is that our court after having said this, (a) was looking at its function as reviewing the trial court's findings; and (b) undertook the task of determining which of admittedly admissible evidence was more or less credible than others, in making the ultimate conclusions about which type of regulation would be best effective and what the court felt was the single worst container. It's clear that on a proper form of analysis that the Act must stand.

First of all, there is data on the record that clearly demonstrates the plastic jug is an environmentally poor container. Second, there's clear data on the record which shows that it's the greatest waster of fossil fuel energy and will take up the most space in landfills. It's the greatest competitive barrier to better containers. We're on the verge of a -- we're on the verge of long-term commitments to that. If we add the competitive advantage together with these long-term commitments and the incentive to produce and promote the throwaway container that that would entail, we would virtually guarantee no movement towards the goal of better containers.

The plaintiffs here, as we've been discussing previously, have sought to make the Commerce Clause --

QUESTION: I don't understand that last argument guaranteeing it. All they have to do is ban the other container too, don't they?

MR. RASCHKE: We could do that, Your Honor, and I think that would be a legitimate legislative choice, but what we're arguing here is that it is not a constitutionally mandated legislative choice. Cases that this Court has decided for a number of years have clearly indicated that legislation is not to be struck down because it proceeds one step at a time, and goes not as far as it might go to better accomplish the goal.

And City of New Orleans v. Dukes, was the latest case of that type.

QUESTION: The difference with the Dukes case is, it was clear from that legislation that as time passed on the people who were then in business would go out of business. But there's nothing in this record to say that you're ever going to prohibit paper containers.

MR. RASCHKE: Well, I think in the legislative --

QUESTION: This is no one step at a time argument. It's just one step, period, is what you're saying. You're going to take one step with no desire to take the other step.

MR. RASCHKE: I think the Legislature can be allowed to take the first step without being constitutionally required to guarantee when that second step will occur.

QUESTION: Or even to have any indication that it ever intends to take the second step.

MR. RASCHKE: In the Railway Express case --

QUESTION: That's your position, isn't it?

MR. RASCHKE: In the Railway Express case this Court indicated that the legislature is free to address one portion of the problem and leave other portions for a later time. I'm not aware of any case in which the second step must be guaranteed at least --

QUESTION: It's been three years now, hasn't it?

MR. RASCHKE: Pardon me, Your Honor?

QUESTION: It's been three years now, hasn't it?

MR. RASCHKE: Yes, it has.

QUESTION: And have you begun to take the second step or not?

MR. RASCHKE: I guess the Legislature ought to be entitled after this case is over and hopefully this Court would reverse the Minnesota decision and allow this step to take effect to see how less restrictive, less onerous regulations work before we're constitutionally required by court decree to take the most intrusive measure in accomplishing the goal.

QUESTION: Well, so, has the result of this case been that plastics are now being used?

MR. RASCHKE: They are.

QUESTION: So the rationale has disappeared now for saying that we started with plastics because they really hadn't come in yet?

MR. RASCHKE: Well, we're trying to stop the major financial commitments, for one thing.

QUESTION: Well, that's past now, isn't it?

MR. RASCHKE: We are not aware that those commitments have been made. I'm not aware, the record does not indicate whether those investments have been made. We know that there is sale taking place in plastic, but as I said before, if we're allowed to base a constitutional decision on the efforts of the industry to defeat the goals, no regulation of that type can stand. We can't continue indefinitely using up valuable energy and solid waste resources. The important point here is that these jugs are made 100 percent from fossil fuel energy, when there are viable alternatives that can be used. This --

MR. CHIEF JUSTICE BURGER: Your time has expired now. You're cutting into your colleague's time.

MR. RASCHKE: I've granted ten minutes to Mr. Dalton of the Solicitor's Office and if he has any time left I would like to rebut.

MR. CHIEF JUSTICE BURGER: Very well. Mr. Dalton.

ORAL ARGUMENT OF HARLON L. DALTON, ESQ., ON BEHALF OF THE U.S. DEPARTMENT OF JUSTICE, AMICUS CURIAE

MR. DALTON: Yes, Mr. Chief Justice, and may it please the Court:

I propose to first explain the Federal Government's interest in and participation in this case; and secondly, to capsulize more briefly than I had expected where the Minnesota Supreme Court went wrong. And then I will turn to the Commerce Clause issues that I think are behind Mr. Justice Powell's questions.

The federal interest in this case is really two-fold. First, we wish to encourage efforts like that of Minnesota to conserve nonrenewable fossil fuels. The recent opinions of this Court and several recent enactments of the Congress have manifested the important national interest in conservation of nonrenewable resources. The Minnesota Supreme Court, however, in our view took insufficient notice of this statutory purpose and concluded that the use of oil and gas in plastic containers, plastic milk containers, was small and that in any event plastic can be recycled. Therefore there was no need to give serious attention to the problem of depletion of non-renewable fuels.

The problem is that if you multiply the oil and gas used in milk cartons in Minnesota across 50 states, a cross-patching not only for milk but for other beverages and foodstuffs and over time, then the problem may indeed be substantial.

As for the question of the recycling of plastic, there is nothing in the evidence to indicate that the plastic container in Minnesota or anywhere else, in fact, is recycled or that recycling is feasible. The Legislature certainly could have concluded to the contrary, and in any event, even if recycling of plastic was a way of reducing the dependence on non-renewable fuels, the Legislature was free as a matter of constitutional choice to select another alternative for dealing with the problem of solid waste disposal and energy misuse.

The second Government interest, federal governmental interest in this case, is in solid waste disposal generally and more particularly in beverage container disposal. There are a series of federal statutes that bear upon this question, most particularly the Resource Conservation and Recovery Act 1976. A federal interagency commission convened pursuant to that statute addressed the question of beverage containers, beverage container disposal, contemplated whether or not to pass a national statute and decided instead to look to the states and see what the states' experience would be in various methods directed to beverage container disposal.

Now, that proposal was directed to beer and soft drink containers but the same notion of using the states as a laboratory applies with equal force to milk containers. Indeed not only is it in the Federal Government's interest to use the states' experimentations in this area as a laboratory, it's in the interest of each of the individual states including Minnesota to take a step and look empirically at their experience and then take the next step.

The experience of Vermont in this respect, we find, very instructive, and that's detailed in Footnote 6 of our brief.

QUESTION: Mr. Dalton, can I ask you, on this question of federal interest, if there is a choice presented in any commerce situation between using plastic containers and paper containers for dairy products, are you saying that there's a federal interest in choosing paper over plastic?

MR. DALTON: No, I'm saying there's a federal interest in leaving Minnesota free to choose paper over plastic, and then in seeing whether that in fact does advance the statutory goals of the --

QUESTION: Is the Federal Government indifferent as to whether paper or plastic is used, or does it have a preference?

MR. DALTON: I think the Federal Government has a very clear preference for returnable bottles.

QUESTION: I understand that but if there's a choice between two disposables, one paper and one plastic, does the Federal Government have an interest in one over the other?

MR. DALTON: Only to the extent that plastic does use nonrenewable fossil fuels. To that extent. Assuming the paper and plastic --

QUESTION: Well, then your answer is, yes.

MR. DALTON: Yes; my answer is, yes.

QUESTION: You do. There is a federal interest in preferring plastic disposable containers over paper disposable containers?

MR. DALTON: Assuming that they are -- ? Yes.

QUESTION: I mean, we shouldn't make assumptions. You're telling us what the Federal Government's interest is, and presumably you've made the factual determination that makes one preferable to the other.

MR. DALTON: What I'm saying is that, assume that in other respects they are environmentally equally destructive or harmful or nondestructive, that the Federal Government's preference for conserving fossil fuels would make plastic preferable over paper. We have not made an independent judgment of whether in fact plastic as opposed to paper is more environmentally disruptive. The State of Minnesota's Legislature has made that judgment --

QUESTION: I understand, but I'm curious about the federal interest in this particular issue, and is there a federal interest in preferring plastic over paper in disposable containers? I'm not quite clear on whether you've answered this or not.

MR. DALTON: Okay.

QUESTION: Seems to me it's a yes or no question.

MR. DALTON: Well, in that case the answer must be, yes, given the federal interest in conservation of fossil fuels.

QUESTION: Would you have the same interest if a neighboring state said, we will allow plastic but not paper, because we think that's environmentally superior? Would you also say that choice should be defended in the same rationale?

MR. DALTON: Yes, we would have an interest in that statute because we have an interest in seeing whether that process is an appropriate one or a successful one in leading toward the ultimate goal of returnable containers. In other words, we think that that would also withstand a rational scrutiny test, which is the only one to be applied in this case.

QUESTION: Is it the premise here that the pulp used in the other containers is a renewable, because it's a fast growth?

MR. DALTON: Precisely. I'd like to speak briefly to the question of pulp and the fact that there is some evidence in the record -- at least, statements by legislators -- that this bill is related to the interests of the timber industry in Minnesota.

First off, this Court has recognized in the United States v. O'Brien that legislation which on its face is constitutional ought not to be struck down because some legislators have made statements without which the statute would survive.

Secondly, it's not a sufficient criticism to say that a statute is in part politically motivated. Legislatures are supposed to take into account the political, that is the economic and the social interests of their citizens. What they can't do is to place burdens on interstate commerce that violate the Commerce Clause. Our position is that this statute does not do that. This statute is not protectionist on its face. There are statutory purposes which are set out at the beginning of the statute. This statute is not protectionist in effect. I think Mr. Justice White was correct in noting that the Minnesota Supreme Court essentially disavowed the District court's factual finding that the statute had a protectionist purpose. Nor is the statute protectionist in terms of the means that are chosen to effect its purposes, as was the case, in the case last term, Lewis v. BT Investment, the Florida case involving--

QUESTION: You are not saying, I am sure, that the legislative purpose would prevent any factual inquiry as to whether or not the effect of this statute really was discriminatory against interstate commerce, are you?

MR. DALTON: No, I'm certainly not saying that by simply enunciating what legislative purposes that seem consistent with the Commerce Clause, a state can insulate that statute from Commerce Clause challenge. But what I am saying is that in this case there is no evidence that there was in fact a protectionist purpose and --

QUESTION: Well, the District Court found to the contrary.

MR. DALTON: But our position is that the Supreme Court --

QUESTION: You want us to weigh the evidence?

MR. DALTON: Again, please?

QUESTION: You want us to weigh the evidence?

MR. DALTON: No, on the contrary. I think that the District Court found to the contrary because it weighed and sifted the evidence, because it took the wrong approach, in essence. But beyond that, I think if you look at the effect of the statute, this statute does not prohibit out-of-state paper interests from producing paper cartons and marketing them in Minnesota. It doesn't prohibit in-state Minnesota plastics manufacturers from manufacturing plastic cartons and shipping them out of the State. There is no barrier to interstate commerce. What the statute does is prohibit a product, not the product manufactured at a particular location.

QUESTION: Are there any plastic manufacturers in Minnesota?

MR. DALTON: My understanding is that there were not at the time that the statute was enacted, but that there was a move afoot to have in-state manufacturing of plastic cartons. That's part of what motivated the statute. That's part of the capital investment to which Mr. Raschke referred that indeed was the impetus for the statute.

Well, I'll cede the balance of my time back to the petitioner.

MR. CHIEF JUSTICE BURGER: Mr. Keyes.

ORAL ARGUMENT OF LEONARD J. KEYES, ESQ., ON BEHALF OF THE RESPONDENTS

MR. KEYES: Mr. Chief Justice, may it please the Court:

The Court today has before it a unique Minnesota statute. It's a criminal act that hasn't been adopted by any other legislature in the United States. It affects only milk. Milk cannot be packaged or sold at retail in Minnesota in a gallon, plastic, non-returnable container. It does not affect windshield wiper fluid or kerosene or any other liquid substance. It's an absolute bar, and it is not an anti-littering statute. The State of Minnesota has been referring in their brief to throwaway bottles. The Solicitor General in his brief talks about the anti-littering statutes which have been held constitutional throughout this country. This is not an anti-littering statute on either side. Nobody drinks milk and throws the bottle out the window, whether it's a plastic bottle or a paperboard bottle.

Therefore, the question is simply --

QUESTION: Sooner or later, Mr. Keyes, someone must dispose of the container, whatever it is, must they not?

MR. KEYES: Surely. Surely.

QUESTION: It may even take about four drinks but it is --

MR. KEYES: They don't litter it, Your Honor. They do not litter the container. That's our position. Obviously, it has to be disposed of some way, either by recycling, by combustion, or by landfill, are the basic --

QUESTION: And are these plastic containers combustible?

MR. KEYES: They are completely combustible. No noxious gases of any kind, completely combustible at a higher, much higher BTU temperature than are the paperboard, Your Honor. They are also completely recycleable, and contrary to the Solicitor General's statement, there is quite a bit of evidence in the trial of the recycling programs which are in practice in Minnesota right now.

Furthermore, this is not a novel product for Minnesota --

QUESTION: Do you agree that the trial was much like a legislative hearing?

MR. KEYES: I do not agree with that, Mr. Justice Marshall. There was evidence produced. There was evidence produced which the court found preponderant, rated overwhelmingly in favor of the plaintiffs. Obviously there was evidence produced at the trial; that was what the trial was for. There was also evidence, I'm sure, produced before legislative hearings. But I would say that the result of the lower Minnesota court's decision, keeping in mind that the Minnesota court understands those principles on which it must decide these constitutional issues, found that the plaintiffs had sustained the tremendous burden which is placed upon them in attacking the constitutionality of a statute.

QUESTION: Would you be here if the statute had said, no plastics and also no paper, five years from now?

MR. KEYES: I assure you that we would not be here if it had said no plastic or no paper right now. Five years from now, I don't know. I can tell you this, Mr. Justice White, however, that at the trial the head of the Pollution Control Agency in Minnesota said there were no plans whatsoever by that agency to introduce any legislation in regard to any other type of milk container. We also had a witness from the Environmental Protection Agency from Washington, who testified on behalf of the plaintiffs in the lower court in Minnesota, who testified that there were no federal statutes or regulations contemplated in regard to regulating plastic containers.

QUESTION: No one knows really very much about this problem as yet, do we? Scientists, environmentalists, governments, it's really -- we're going into a fog bank, aren't we, to a large extent?

MR. KEYES: We did have, of course, the MRI report which, and the expert witnesses from both sides who testified in the lower court.

QUESTION: I was speaking of experience. There's very little experience to go on, isn't that true?

MR. KEYES: Very little experience in this type of statute, Your Honor, yes. And also I would agree that --

QUESTION: The technology?

MR. KEYES: Technology? Right. Because we talk about nonrenewable resources being used here to make plastic. Plastic can be made out of anything with carbon and hydrogen. It can be made out of air, made out of grass. As of now petrochemicals are being used because they used to be burned off, not flared off. They never -- the plastic which goes into the polyethylene is not a component of the heating fuel which the State seems to indicate we're being deprived of in this matter. They used to be flared off; they're now being used in this country for petrochemicals.

The Minnesota court found two basic factors. One, both courts found there was no rational nexus between what the State of Minnesota said it wanted to accomplish, that is, environmental purpose, and the means selected to accomplish it, that is, banning this container of one liquid.

QUESTION: Suppose that at the time the legislation was passed the industry was using plastic and paper half and half, and the Minnesota court said, well, we want to get to returnables and we're going to start with plastic. So no plastic. Wouldn't that be rationally connected with it?

MR. KEYES: We submit, not on the evidence.

QUESTION: Well, it may not be. I didn't ask whether it would be constitutional. I just said --

MR. KEYES: Would it be rationally --

QUESTION: -- would it be rationally connected? If prevented half the nonreturnables, I suppose it's rationally connected, isn't it?

MR. KEYES: Yes. I have no quarrel with that proposition.

QUESTION: Well, why isn't it rationally connected if the Legislature said, well, plastic's about to come, we're going to keep it from coming?

MR. KEYES: Well, for two reasons in this case. One, plastic has been there for ten or twelve years. Second, the second--

QUESTION: Well, then, you're back in my first question, then.

MR. KEYES: All right. That is, that the trial court found after taking voluminous evidence that in Minnesota there would be no return to returnables. If plastic is abandoned, the housewife and the dairy would go only to the paperboard, nonrefillable, nonreturnable container. The evidence -- that was a finding by the trial court upon the evidence in this case. So, when we're talking about this type of statute promoting refillables, it just as a practical matter does not do it.

Furthermore, the Department of Agriculture of Minnesota is opposed to refillables. The City of Rochester would not permit refillables because of the fact that the sewage system couldn't stand it from the washing at the home and the washing at the dairy. There was much evidence to that effect.

QUESTION: That may be so but if the statute had banned all nonreturnables, that certainly is rationally connected to an end, isn't it?

MR. KEYES: Yes, it is.

QUESTION: And they wouldn't have gone on using nonreturnables.

MR. KEYES: That's right.

QUESTION: They would have shifted to glass or something.

MR. KEYES: Yes.

QUESTION: Well, then, why can't the Legislature say, half at a time?

MR. KEYES: Because the half that they are going to take out isn't going to accomplish the purpose of getting refillables.

QUESTION: It would be one step, though. You can't say that --

MR. KEYES: Not necessarily, when -- 100 percent of the consumers would then go to the paperboard, as the evidence showed. You wouldn't get refillables. They didn't get them in Canada in Ontario, where they banned both. In Canada they go to the polyethylene nonrefillable soft plastic. The housewife will not go to refillables.

QUESTION: So, if the Legislature had started with paper, you would suggest that everybody would have gone to plastic?

MR. KEYES: Yes, sir.

QUESTION: Mr. Keyes, isn't there some evidence in the record that with respect to gallon jugs, if you ban plastic, they will go back to glass instead of the paper, because the paper gallon container, as opposed to the quart or half-gallon, is pretty unsatisfactory?

MR. KEYES: If there was, Mr. Justice Stevens, I don't recall it. However, I do believe that, obviously, there was conflicting evidence on many points in this case, and the court did make a determination on what it considered to be the great preponderance of the evidence.

The Minnesota courts found, again -- if there is -- plastic is banned, there is no return to refillables, and the milk market will be preempted by paperboard. There are no plans as I indicated for federal or State additional regulation, by the Commission of the State of Minnesota.

QUESTION: Well, what if the legislative findings had in so many words found that, if we ban plastic, there will be a substantial switch to returnables?

MR. KEYES: What if they had said that?

QUESTION: Yes, what if they had said that, and then -- is a court then free to refind that, to make some contrary findings?

MR. KEYES: I certainly believe so. I think the Court in its --

QUESTION: Do you have to take that position? I suppose you do, don't you?

MR. KEYES: Yes. And I think the Minnesota courts took that position. I think this Court has taken that position in --

QUESTION: In what case is that?

MR. KEYES: I would say in the Hunt v. --

QUESTION: In the Apple case?

MR. KEYES: The Apple case. A New Jersey case, Philadelphia v. New Jersey. And in Craig v. Boren, and in Raymond Motor Freight, all of which, the state had an ostensible purpose. And the trial court found on the basis of voluminous evidence that that purpose was not being effected by the statute. And because of that, this Court found, or agreed, that the mere statement --

QUESTION: Well, what is the standard? That there isn't any rational basis for the legislative finding, or that, although it may be rational, we find the facts to the contrary? What is the standard?

MR. KEYES: Well, the standard as I understand it -- -- and I think the standard our Supreme Court used -- is there was no rational basis for the Legislature to have conceived that these means would bring about the end that they sought to bring about. And I believe the Dukes standard on equal protection is the one that was followed by our Supreme Court.

The Minnesota courts found, both the Supreme Court and the lower court, that the big problem with disposable waste today is landfills, and the effect that refuse has on landfills. It found that because plastic is not biodegradable -- and this is not an anti-litter statute -- there is no leaching of the surface waters through the vegetable matter into the underground aquifers which are so important in our state, and I'm sure in most state; no methane gas. In fact, many -- the evidence showed that many landfills are lined with plastic to stop the leaching. Furthermore, you have stable landfills. As I indicated earlier, plastic is completely recycleable and completely combustible. None of those are properties of the so-called paperboard container, which incidentally is coated with plastic; not the wax that you used to get years ago, it's plastic-coated, melded.

Furthermore, the Court found, both courts, that plastic containers are as environmentally sound as paperboard in a number of other matters, and in no case is it inferior. Therefore they found that the statute is really not an environmental statute. The statute is not an environmental statute; the statute is for the purpose of -- the lower court: insulating local industry from out-of-state competition; and the Supreme Court: --

QUESTION: That's no longer in this case, is it?

MR. KEYES: I believe it is.

QUESTION: How does it stay in after the opinion of the Supreme Court?

MR. KEYES: The Supreme Court said, we do not address it because we don't have to, Your Honor.

QUESTION: Well, then, how do we get it?

MR. KEYES: Pardon?

QUESTION: Then how do we get it?

MR. KEYES: You get it on the same basis that you got the Barchi, when an issue was not litigated in Barchi, you asked that it be briefed. Beazer -- New York City Transit Authority v. Beazer, where the lower trial court decided a case on the constitutional issue, filing the statutory issues, and the circuit court, if I recall, addressed only one of the issues, and you decided on the statutory issues.

QUESTION: Did you rely on the Commerce Clause issue in both courts below?

MR. KEYES: We did. We relied on it in both courts below, we briefed it in both courts. We briefed it in our opposition to cert. in this Court.

QUESTION: Then you won in the District Court on all your grounds, didn't you?

MR. KEYES: We won on all grounds except that the District Court found that the due process, substantive due process and equal protection were both based on the rationality nexus.

QUESTION: Yes.

MR. KEYES: And so it didn't address it too well. Minnesota did not decide it on the Commerce Clause issue because it said it did not --

QUESTION: It was just on Equal Protection, wasn't it?

MR. KEYES: Solely on Equal Protection.

QUESTION: Was there an Equal Protection Clause in the Minnesota Constitution?

MR. KEYES: There is, Your Honor, but there is no Commerce Clause.

QUESTION: I understand that. So -- but you didn't present any State grounds?

MR. KEYES: We did not.

QUESTION: Why didn't you?

MR. KEYES: Because the two clauses are identical, and we felt that the --

QUESTION: Well, I know, but if you'd have won on the State ground, they could never have come here.

MR. KEYES: That would have been -- we didn't understand that. It was our feeling that if the two are identical that --

QUESTION: If the two are identical, you would have won on the State ground in the Minnesota Supreme Court. And there would have been no resort to this Court.

QUESTION: Mr. Keyes, on the equal protection theory of the case, the Equal Protection Clause says that no state shall deny to any person within its jurisdiction equal protection of the laws. Who are the persons that you say have been denied the equal protection of the laws?

MR. KEYES: The persons, Your Honor, are the suppliers, fabricators, and --

QUESTION: They're not the dairies?

MR. KEYES: Not the dairies; no.

QUESTION: Now, the dairies are parties to this litigation?

MR. KEYES: They are.

QUESTION: So this argument isn't really advanced on their behalf?

MR. KEYES: It's on their behalf to the extent that they fabricate plastic milk bottles in Minnesota. Some of the dairies do.

QUESTION: Well, they want to sell their --

MR. KEYES: Pardon?

QUESTION: They want to sell their milk in plastic containers, don't they?

MR. KEYES: Yes. Yes, they do.

QUESTION: So they are real parties in interest, your client is a dairy, isn't he?

MR. KEYES: Our client is a dairy who fabricates these plastic milk containers.

QUESTION: But even if he didn't, he would presumably want to sell. Other dairies that don't fabricate them still want to sell their milk in plastic containers, don't they?

MR. KEYES: That's correct.

QUESTION: They may want to, but how are they being treated differently than any other dairy? Every dairy has the right to sell milk in paper containers but not in plastic containers. Aren't all dairies being treated alike?

MR. KEYES: Not to the extent that the plastic container, we feel, or at least the evidence showed, was a much more attractive container and permits the sale --

QUESTION: Well, I understand you think it's better and it's irrational. I'm just addressing myself to the equal protection theory. Are there any cases that you know of in which all businesses within the State are treated alike, it's just that they can't engage in the laundry business or the plastics business, whatever it might be. Does that violate Equal Protection Clause?

MR. KEYES: Not internally. However, milk is competing at all times with many other, with soft drinks and many other liquids. And in that case the package or container, we believe, does assist the sale of milk by these dairies.

QUESTION: Well, I understand that. I asked if there is any precedent for holding that denying a business the right to engage in a particular kind of activity violates the Equal Protection Clause?

MR. KEYES: It does when there's no rational basis for it.

QUESTION: Do you have any cases for that proposition?

MR. KEYES: Again, I think that there's no rational nexus for the discrimination generally speaking.

QUESTION: Your answer is, no, you don't have any cases for that proposition?

MR. KEYES: I don't have any cases --

QUESTION: Mr. Keyes, what's the competition between gallons of milk and soft drinks?

MR. KEYES: What is the -- ? I'm sorry, I didn't understand.

QUESTION: The competition between a gallon container of milk and soft drinks?

MR. KEYES: The only --

QUESTION: They're both liquids?

MR. KEYES: They're both liquids, but --

QUESTION: Now, what else?

MR. KEYES: That's -- the dairies, I believe, find that in order to compete in the liquid, consumer market, they should have an attractive package and should be entitled to use a package which is not an environmentally harmful package, and we're back again to the lack of rationality for the discrimination, Your Honor.

QUESTION: I hear what you're saying.

MR. KEYES: We submit that the State of Minnesota, and the evidence shows, could not pass an effective littering bill, or could not pass an effective container deposit bill. It was not possible for them to do it politically. So out-of-state interests were banned. There was no political problem whatsoever with the banning of out-of-state interests. But the local interests such as the can manufacturers and others who would be affected by an effect; litter or container deposit bill were not affected by this legislation, because politically, they could not have been.

QUESTION: What out-of-state industry as of the present time, or at the time of beginning of the litigation, was being banned?

MR. KEYES: The plastic industry.

QUESTION: Generally?

MR. KEYES: No, no, only in regard to the making of milk bottles, plastic containers.

QUESTION: Well, I understood the State to say that they were going to set up a plant in Minnesota, and that this was what brought up, one of the things that brought up the legislation.

MR. KEYES: I was very unaware of that, and it never has happened. There is no -- there are fabricating plants in Minnesota which utilize out-of-state machinery and utilize out-of-state polyethylene, but there are no plants in Minnesota, no plastic plants in Minnesota. There are none. There is, however, a very strong can lobby in the State. The discrimination in this matter, we submit, for interstate commerce purposes, is between producers of milk containers. We further submit that the movement of plastic containers, raw material, equipment, is halted at the border of Minnesota. It can't get into the State for the purpose of retail.

QUESTION: Now, this is your interstate commerce argument?

MR. KEYES: This is our interstate commerce, sir.

QUESTION: That you're making as an alternative ground to support the judgment in your favor in the Minnesota Supreme Court?

MR. KEYES: That is correct, Mr. Justice Stewart. The evidence was clear that Phillips Petroleum would lose about half a million dollars annually as a result of this statute. The Hoover Company has already lost a million and a half dollars and it would be absolutely foreclosed from the Minnesota market. The Wells Dairy in Le Mars, Iowa, would not be able to ship about a million gallons of plastic-contained milk into Minnesota if this statute were permitted.

QUESTION: Well, if they had banned both plastic and paper, I suppose you'd be making the same argument?

MR. KEYES: Yes -- I don't know that I would.

QUESTION: Well, why not, if --

MR. KEYES: On Commerce --

QUESTION: -- it would still keep these, the very people out that you just mentioned?

MR. KEYES: On Commerce; yes. That's correct.

The legislative history in this case indicates that the timber interests were to be protected. It's the third largest employer in our State -- that was in the legislative history. The plastic industry was referred to by the author of the bill as the boys in the alligator shoes from New York and Chicago who were going to come in our State and tell us how to run it; no importation of competing petrochemicals or plastics from out-of-state. Further, this Court has stated that protectionism can arise from the effect of a statute as well as from a protectionist legislative motion. Very few legislatures state exactly that they are going to cast an undue burden on commerce.

But the practical effect of the statute -- and which it is here -- no chemical industry in Minnesota, no plastic industry; there is an extensive timber industry. This Court is aware of a number of recent cases by hit, just in regard to this point. The evidence convinced the Minnesota court that the purported State goal was environmental protection, was illusory. At least the trial court found that. And that's the same result as this Court determined in regard to Raymond Motor Transport. Then the State of Wisconsin said, we're going to promote highway safety. This Court said, the evidence did not permit that.

Hunt and Lewis: we're going to protect the consumer. This Court after an examination of the evidence found in the contrary. Philadelphia v. New Jersey, environment and public health were going to be supported by this statute. This Court after review of the evidence found that it was illusory.

A slight or non-existent legitimate state purpose cannot justify a burden on commerce, even though the burden is slight. That is what I believe this Court has said in these matters, and that is the basis of our Commerce Clause argument.

The Minnesota court also found that Equal Protection was violated on the basis of no rational nexus. I am aware of the three-tiered approach used by this Court in that matter and of course if the approach should be abandoned, we submit that Minnesota's justification of the statute is insufficient to support the discrimination between milk containers. There's just no -- whether it's rational basis or whether it's substantial state purpose.

Even if the Minnesota end be legitimate, the Court held that the means selected did not effect an appropriate governmental interest, and whereas here we contend that the end is not legitimate, the discriminatory classification cannot be related to a proper State interest.

Now, we're aware, and our court was aware of Railway Express, of Dukes, and Williamson. Those cases held that legislatures are free to at least perceive evils on a step by step basis.

QUESTION: As long as it's a step.

MR. KEYES: As long as it's a step. And our Supreme Court --

QUESTION: But this is a non-step, you say?

MR. KEYES: That's what our Supreme Court said.

QUESTION: And the District Court?

MR. KEYES: And the District Court. And again, on the basis that a journey of a thousand miles begins with one foot forward, is valid only if that foot is forward, we submit, and sideways or backwards doesn't -- the aphorism is untrue. We submit that that is what our court held on the basis of voluminous findings of fact, that the step is not a forward step, and because of that the statute cannot be justified under the Commerce Clause, we submit, and also as the Minnesota Supreme Court determined, under the Equal Protection Clause.

QUESTION: Did the State ever argue that as a matter of state law the Supreme Court of Minnesota was disentitled to second guess the findings of the Legislature?

MR. KEYES: Over and over. Yes, they argued that --

QUESTION: And the Minnesota -- so the Minnesota court in effect says, as a matter of state law, the state Supreme Court and courts are perfectly allowed and it's permissible to look into legislative findings.

MR. KEYES: Your Honor, they made a motion to dismiss at the beginning of the case on the basis that legislative enactments cannot be examined by the courts. They lost that in the District Court. They argued it again in the District Court and in the Supreme Court. The Minnesota court held that the courts could not and should not abandon their role to determine the constitutionality of statutes. That is simply what they held.

QUESTION: Well, mightn't you get a different answer to that question in terms of whether you're relying on the Federal Constitution or the State?

MR. KEYES: I don't know that we did. I don't know that we would. I do know that our Minnesota court was certainly aware of the fact that the courts are not super-legislatures and that they have a distinctive role in the constitutionality of statutes. And they exercised it.

MR. CHIEF JUSTICE BURGER: Thank you, Mr. Keyes. Mr. Raschke, do you have anything further? You have a couple of minutes left.

MR. RASCHKE: Just a couple of further comments, Your Honor.

ORAL ARGUMENT OF KENNETH E. RASCHKE, JR., ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

MR. RASCHKE: I am not aware that the Minnesota Constitution contains anything directly parallel to the U.S. Equal Protection Clause. I was just paging through to find in the plaintiffs' complaint at A-8, they do not cite any State constitutional provision to base their equal protection argument in the complaint.

Secondly, Mr. Keyes mentioned that plastic burns at a higher BTU value. There's a very good reason for that. It has a whole lot more energy locked up in it. The trial court found that it has three times, roughly, the energy that the paperboard container has in it.

With respect to the question of protecting the pulpwood industry, there's no evidence on record that demonstrates that these paperboard containers actually come from any Minnesota paper products as opposed to products of any one of a large number of other states which are engaged in the paper industry.

QUESTION: Would that be a matter outside judicial notice? I suppose you would suggest it is.

MR. RASCHKE: Pardon me, your Honor?

QUESTION: Is that a matter outside of judicial notice or -- I suppose you'd say it is.

MR. RASCHKE: Well, I don't -- if you're asking me whether you can take judicial notice of the fact that there are numerous cases involving paper --

QUESTION: Does the fact that trees grow in Minnesota --

MR. RASCHKE: -- I think that's judicially noticeable.

QUESTION: Well, did the Supreme Court of Minnesota say they were judicially noticing this production and resource factor? Did its opinion mention that?

MR. RASCHKE: With respect to discrimination -- paper?

QUESTION: No, did they refer to the fact that -- the source of these containers, whether they were made inside or outside the State?

MR. RASCHKE: The Act makes no distinction whatsoever with respect to where the containers, raw materials, or anything else came --

QUESTION: What did the District Court find?

MR. RASCHKE: The State Supreme Court found --

QUESTION: What did the District Court find?

MR. RASCHKE: -- with respect to --

QUESTION: What did the District Court find?

MR. RASCHKE: I don't think there was any finding with respect to where the paper for the paperboard container comes from, whether within or without the State. Certainly the statute doesn't make that distinction. Certainly the statute in its effects in its entirety placed a primary impact on local interests, the local dairies and the retailers that would like to be able to sell this milk. It's only after you get two or three steps removed in terms of regulation that we even get the plastic industry, who makes something that happens to go into one use, one container. I thank you.

MR. CHIEF JUSTICE BURGER: Thank you, gentlemen. The case is submitted.

(Whereupon, at 2:00 o'clock p.m., the case in the above-entitled matter was submitted.)