Deposit This!

As Capitol Confidential is reporting, the state's expanded bottle has been thrown for a loss by Federal Judge Griesa-and on the issue we had spotlighted: "A federal judge has just issued an injunction putting the scheduled June 1 implementation of New York’s new expanded bottle law on hold. U.S. District Court Judge Thomas Griesa ruled from the bench in New York City early this afternoon during a hearing on the lawsuit against the state filed last week by a coalition of bottled water companies. Brian Flaherty, director of public affairs for Connecticut-based Nestle Waters North America Inc., said the judge cited objections raised by the bottlers and distributors to the new law’s requirement that all returnable bottles carry a New York-specific UPC bar code."

What this means from a practical standpoint, is that the expansion may well be put off indefinitely since the plaintiffs have no reason to settle prematurely even if the state crafts compromise legislation; why not try to get the entire package of goodies by going to trial if you're almost guaranteed a win on the UPC issue? Whatever your position, this ruling puts the industry opponents of the expansion in the proverbial cat bird's seat. As Nestle's told the TU: “The court today highlighted the Constitutional and due process problems with New York’s new bottle bill,” he said. “The opportunity that we see today is, first, stopping an unconstitutional law. But more importantly, in the pause that will take place, we now can reinforce that this needs to be a better bill and can be, environmentally.”

And if the state decides it wants to litigate this, well, apparently Judge Griesa had wanted all parties to stipulate to the UPC being eliminated from the law-right in court-but the state's lawyers demurred; not a smart move if you are in federal court. So the state is now between a Rolling Rock and a hard place here. This is underscored by City Room: "In granting a preliminary injunction on Wednesday, Judge Griesa said he agreed with the bottlers that the June 1 deadline was simply too early for the companies to have realistically met, given that Mr. Paterson signed the law in April. But he also said that the plaintiffs were almost certain to be successful in overturning the prohibition on sales outside of New York."

It appears to us that, because of hubris and intransigence-particularly from the governor's office-the expanded bottle bill may have been forced into a six to nine month hiatus; and new legislation will likely have to be drafted and negotiated, with all parties having assumed hardened positions from the manner in which the law was midwifed in the first place. As a result, this becomes another example of the failure of competency at the highest levels of government.