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June 16, 2009

Albany Times-Union

Court asked to modify decision
Delaying state's bottle law until 2010 too costly, attorney general says

ALBANY -- The attorney general's office is asking that a federal court modify its decision putting New York's new bottle law on hold until 2010.

The state says the scope of an injunction issued last month by U.S. District Court Judge Thomas Griesa is too broad and is costing the state $235,000 a day in deposit revenue.

A hearing on the request is scheduled Thursday at 11:30 a.m.

The attorney general's office also wants the court to impose a posting fee of as much as $115 million on the businesses challenging the law -- saying the money would cover the state's ongoing revenue losses if the bottle law is upheld.

Nestlé Waters North America, a primary opponent of the law, blasted the fee request as an attempt to quash freedom of speech.

"Can the attorney general, who took an oath to uphold the constitution, seriously be putting a price tag on anyone who would bring a challenge when the Legislature tramples on it?" asked Brian Flaherty, a spokesman for the Connecticut-based company.

In response, the attorney general's office said it's "absurd" for such a multinational company to suggest the state is trampling on free-speech rights.

The posting fee is only an attempt to make sure Nestlé Waters and other companies "do not receive a windfall at the expense of New York state citizens," said Emily Browne, a spokeswoman for the attorney general's office. "Obviously, the court will decide the appropriate bond to be imposed."

Gov. David Paterson signed the expanded deposit law in April, with a scheduled June 1 implementation date.

The law extended the nickel deposit to bottled water and increased the 2-cent handling fee paid to retailers to 3.5 cents per container, among other provisions. It also required all returnable New York containers to carry a state-specific bar code.

That provision in particular riled bottlers, who said it was logistically difficult and unconstitutional. They asked -- and ultimately received -- an injunction from Griesa.

The judge agreed the bar-code provision is of questionable constitutionality -- a potential violation of the interstate commerce clause. And he delayed launch of all other aspects of the bottle bill until April 1, 2010.

"The court threw the baby out with the bath water," said Laura Haight of New York Public Interest Research Group, a consumer advocate organization, which agrees with the state's interpretation of the decision. "Everybody was taken by surprise. Nobody expected this outcome."

The attorney general's office, in a motion filed last week, argued that the delay "far exceeds the relief sought by the plaintiffs."

The state also argued that delaying the law for so long "has wrought harm" to New York's fiscal and environmental health. It asks that the injunction be scaled back to include only the provision the court found unconstitutional.

Flaherty, of Nestlé Waters, said the state should concentrate on fixing the bill's problems, rather than continuing the court fight.


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