On December 19, 2017, we blogged about the efforts of several states, including Missouri, to overturn California’s egg regulations by suing California directly in the Supreme Court. A California referendum requires all egg-laying hens in California to have substantially more cage space than is the industry norm.  California egg farmers were understandably concerned about being placed at an economic disadvantage vis-à-vis their out-state competitors, so they lobbied the legislature to require that all eggs sold in California be laid by hens in cages that comply with the space requirement.  As a practical matter, there is no way to comply with that requirement without providing minimum cage space to all hens.

The State of Missouri sued California for declaratory and injunctive relief, alleging that its attempt to control the actions of out-of-state producers violated the Commerce Clause. Both the District Court and the Ninth Circuit rejected those claims, not on the merits, but because Missouri had not alleged that the regulations caused it any damage.

Last December, 12 states joined with Missouri in a motion for leave to sue California in the Supreme Court under the Court’s original jurisdiction.  They supported the motion with an expert report asserting that the California measure has raised the price of eggs across the board.  The motion has been fully briefed by the parties and the Court has asked the Solicitor General for his views on the matter.  The Court will likely decide before the end of June whether to hear the case.