Antonin Scalia

“ It can also mean the existence of facilities that lie fallow because, although they can produce additional quantities of goods, they cannot do so at a cost that will yield a profit at current market prices. Innumerable capped or unexploited oil wells in this country exemplify that phenomenon. If that is the sort of excess capacity the Wyoming coal industry has, it nonetheless has a limited capability of sales at current market prices-in which case so long as that capability has been fully achieved no tax revenue has been lost. ”

“ Higher demand generally means higher prices, and the coal companies might well have brought new, higher-cost production facilities on line (for example, deep-pit mines) that are at current prices not competitive. Even if the entire "excess capacity" is competitive, since much of it came (according to Wyoming's expert) from the opening of "new mines," ibid, another possibility is that the Wyoming industry responded to less-than-anticipated demand in an efficient manner-buy closing down some of the mines entirely rather than leaving them all in operation at a fraction of capacity. ”

“ The injury-in-fact requirement, of course, will still remain-but if and when de facto causality can be established, every diminution of state revenue attributable to the allegedly unconstitutional commercial regulation of a sister-State will now be the basis for a lawsuit. Suits based on loss of sales tax revenue ought to become a regular phenomenon, since it is no more difficult to show that an automatic sales tax was lost on a particular sale than it is to show that the severance tax was lost here. ”

“ Of course, if the state interest in collecting severance taxes does fall within the zone of interests of the Commerce Clause, so must every other state taxing interest. The zone-of-interest test, as opposed to the injury-in-fact requirement, turns on the type of interest asserted and not on its speculativeness or its degree of attenuation from its alleged source. ”

“ When a district court denies the former, it need feel no compunction of consistency to deny the latter; and the same is true for us. The standing issue is obviously subject to different evaluation, depending upon the stage the litigation has reached. A plaintiff may survive a motion to dismiss for lack of injury-in-fact by merely alleging that a string of occurrences commencing with the challenged act has caused him injury ”

“ Our negative-Commerce-Clause jurisprudence grew out of the notion that the Constitution implicitly established a national free market, under which, in Justice Jackson's words, "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 . ”