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PacifiCorp, an Oregon Business Corporation v. Casey Sixkiller, Director, Washington State Department of Ecology
Paid petition · United States Court of Appeals for the Ninth Circuit, No. 24-4803 · judgment August 7, 2026
(as of the Nov 6 conference)
Modestly above the 7.8% base rate for a petition at conference. The model weights this up for a petition filed soon after the judgment below, a Ninth Circuit decision below, and a circuit split argued in the petition, and down for the respondent waiving its right to respond and a state or local-government respondent.
At filing: 59% (95% interval 45%–72%), against the 4.1% base rate for a petition at filing
Question presented
In General Motors Corp. v. Tracy, 519 U.S. 278 (1997), this Court held that a state-law exemption for in-state businesses did not implicate the dormant Commerce Clause because the favored businesses and the disfavored ones sold “different products” and “serve[d] different markets.” Id. at 298-299. The Fifth and Sixth Circuits have since confined Tracy to laws that distinguish between entities competing in “different retail markets.” NextEra Energy Capital Holdings, Inc. v. Lake, 48 F.4th 306, 319 (5th Cir. 2022); see Energy Michigan, Inc. v. Michigan Public Service Comm’n, 126 F.4th 476, 493 (6th Cir. 2025). Below, a divided Ninth Circuit rejected the Fifth and Sixth Circuits’ focus on whether the regulated party “produces the same product * * * for in-state and outof-state consumers.” App., infra, 11a. The court instead read Tracy to immunize Washington’s cap-andtrade system, which requires utilities to buy allowances for greenhouse-gas emissions when generating exported electricity but awards free allowances for electricity sold to Washington retail customers—even though retail electricity is “the same product sold across multiple geographic markets.” Id. at 42a (Bress, J., dissenting). The question presented is: Whether Tracy exempts a State from dormant Commerce Clause scrutiny when state law imposes different burdens on the same product based on whether the product is sold in state or out of state.
Similar questions
Other petitions whose question is worded like this one.
Counsel of record
For petitioner
Theodore J. Boutrous Jr.
Gibson, Dunn & Crutcher LLP
For respondent
Noah Guzzo Purcell
Office of the Attorney General
Case
Subject area
Economic Activity (estimated from the questions presented, in the Supreme Court Database’s categories)
Conference history
Distributed for 1 conference
Proceedings
- Oct 27 2026Response Requested. (Due November 27, 2026)
- Oct 21 2026DISTRIBUTED for Conference of 11/6/2026.
- Oct 13 2026Waiver of right of respondent Casey Sixkiller to respond filed.
- Sep 04 2026Petition for a writ of certiorari filed. (Response due October 13, 2026)