Page:United States Reports 502 OCT. TERM 1991.pdf/625

 502US2$28K 02-10-99 15:12:54 PAGES OPINPGT

Cite as: 502 U. S. 437 (1992)

467

Scalia, J., dissenting

excess mining capacity”; this fact, according to the Court, necessarily means that “the loss of any market cannot be made up by sales elsewhere.” Ante, at 445, 446. That is not so. Excess capacity can mean the existence of facilities capable of producing additional quantities of goods that can be sold for a profit at current market prices—in which case the loss of one sale cannot really be “replaced” by the gain of another. But excess capacity need not mean that. 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. The excess capacity attested to by Wyoming’s experts may well have been of this latter sort, since it was said to have been created in response to 1970’s “forecasts of high demand growth.” Affidavit of Seth Schwartz, Appendix to Response to Motion to Dismiss A–2. 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-thananticipated demand in an efficient manner—by closing down some of the mines entirely rather than leaving them all in operation at a fraction of capacity. Under these conditions, it might well not pay a particular company to make a particular additional sale, if that additional sale would require the