PacifiCorp, an Oregon Business Corporation v. Casey Sixkiller, Director, Washington State Department of Ecology

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.