CHIEF JUSTICE ROBERTS: We will hear argument next in Case 07-1125, Fitzgerald v. Barnstable School Committee. Mr. Rothfeld.
MR. ROTHFELD: Thank you. If it please the Court:
The court of appeals in this case — excuse me, Your Honor.
JUSTICE GINSBURG: Could you raise the podium?
MR. ROTHFELD: Actually, I have never used this before, so it’s a learning experience for me, Your Honor.
JUSTICE STEVENS: That’s enough.
MR. ROTHFELD: Okay.
JUSTICE STEVENS: We can’t see you.
MR. ROTHFIELD: That — that may be an advantage, Your Honor.
JUSTICE GINSBURG: But we can hear you.
JUSTICE SCALIA: …That is an important question. It’s why we took the case. Why can’t we decide that issue and then for all these loose ends, send it back to the court of appeals?
MS. HODGE: Because there must be an issue in controversy for this Court to send any — there must be an issue in controversy here and also —
JUSTICE SCALIA: He says there is an issue in controversy, that’s good enough for me.
JUSTICE BREYER: But to be honest about it, I would have to say the reason it isn’t available is quite — it isn’t available for minimizing the — the harm — that particular adverse impact which is killing a — a water animal. The reason it isn’t is because it doesn’t kill any water animals. Well, let me be honest; it kills one, or it kills two —
MR. LAZARUS: But —
JUSTICE BREYER: Or it kills three, and don’t tell me de minimis, because as soon as you say de minimis, I’m going to add one, okay?
CHIEF JUSTICE ROBERTS: Well, if you get to that money in the bank, does this mean that best technology available changes over time? I mean, maybe the industry could have borne these costs two years ago, but they probably can’t today. Nobody has money in the bank today.
JUSTICE BREYER: And the — the question I have from your point of view is the — the obverse question: if you look at this particular cost-benefit analysis, I mean, it goes through all these things which, they don’t know what the numbers are, nobody knows what the values of the fishes are, which 98% are never even eaten, they are fast swimmers or whatever.