FEDERAL ENERGY REGULATORY COMMISSION ET AL. v. MISSISSIPPI ET AL.
No. 80-1749
Supreme Court of the United States
Argued January 19, 1982—Decided June 1, 1982
456 U.S. 742
Solicitor General Lee argued the cause for appellants. With him on the briefs were Assistant Attorney General Dinkins, Deputy Solicitor General Claiborne, Elliott Schulder, Kathryn A. Oberly, Susan Virginia Cook, Jerome M. Feit, and Joanne Leveque.
*Briefs of amici curiae urging reversal were filed by Roger E. Warin, Stephen H. Sachs, Attorney General of Maryland, Eleanor M. Carey, Associate Deputy Attorney General, Roger Davis, Norman L. Dean, Jr., and Alan S. Miller for the State of Maryland et al.; by Peter N. Wells for the County of Onondaga, N. Y.; by William M. Bradner, Jr., and Rigdon H. Boykin for the American Paper Institute, Inc.; by Janice E. Kerr, Hector Anninos, and Randolph W. Deutsch for the California Public Utilities Commission; by Peter W. Brown, Richard A. Hesse, and James E. Tierney, Attorney General of Maine, for the Energy Law Institute et al.; by Robert E. Bethea, A. Bernard Bays, and Gerald A. Sumida for the Hawaii Sugar Planters’ Association; by Samuel Efron, David J. Bardin, James P. Mercurio, and Lewis E. Leibowitz for Hoffman-La Roche Inc. et al.; by Gerry Levenberg, R. Keith Guthrie, William Brashares, and John J. Gunther for the National Alliance for Hydroelectric Energy et al.; and by Robert H. Loeffler, Alan Cope Johnston, and Henry D. Levine for Windfarms, Ltd., et al.
Briefs of amici curiae urging affirmance were filed by Northcutt Ely, Frederick H. Ritts, and Robert F. Pietrowski, Jr., for the American Public Power Association; by David G. Hanes, John D. McGrane, and Andrew P. Carter for Arkansas Power & Light Co. et al.; by Walter A. Bossert, Jr., and Davison W. Grant for Central Hudson Gas & Electric Corp.; by Harold R. Schmidt, William R. Cockrell, Jr., and Steve C. Griffith, Jr., for Duke Power Co. et al.; by William B. Killian for Florida Power & Light Co.; by R. Gordon Gooch, J. Patrick Berry, and William R. Brown for Houston Lighting & Power Co. et al.; by Roger J. Marzulla and Gale A. Norton for the Mountain States Legal Foundation; by Edward A. Caine and William Dana Shapiro for Potomac Electric Power Co.; and by Wayne T. Elliott, Allen R. Hirons, and G. Stephen Parker for the Southeastern Legal Foundation, Inc.
Briefs of amici curiae were filed by David Frohnmayer, Attorney General of Oregon, and William F. Gary, Solicitor General, for the Department of Energy of the State of Oregon; by Mark White, Attorney General of Texas, John W. Fainter, Jr., First Assistant Attorney General, Richard E. Gray III, Executive Assistant Attorney General, and James R. Myers, Justin Andrew Kever, and John Stuart Fryer, Assistant Attorneys Gen
JUSTICE BLACKMUN delivered the opinion of the Court.
In this case, appellees successfully challenged the constitutionality of Titles I and III, and of § 210 of Title II, of the Public Utility Regulatory Policies Act of 1978,
I
On November 9, 1978, President Carter signed PURPA into law.1 The Act was part of a package of legislation,2 approved the same day, designed to combat the nationwide energy crisis.
At the time, it was said that the generation of electricity consumed more than 25% of all energy resources used in the United States. S. Rep. No. 95-442, p. 7 (1977). Approximately one-third of the electricity in this country was generated through use of oil and natural gas, and electricity generation was one of the fastest growing segments of the Nation‘s economy. S. Rep. No. 95-361, p. 32 (1977). In part because of their reliance on oil and gas, electricity utilities were plagued with increasing costs and decreasing efficiency in the use of their generating capacities; each of these
A
Titles I and III
PURPA‘s Titles I and III, which relate to regulatory policies for electricity and gas utilities, respectively, are administered (with minor exceptions) by the Secretary of Energy. These provisions are designed to encourage the adoption of certain retail regulatory practices. The Titles share three goals: (1) to encourage “conservation of energy supplied by ... utilities“; (2) to encourage “the optimization of the efficiency of use of facilities and resources” by utilities; and (3) to encourage “equitable rates to ... consumers.” §§ 101 and 301,
Section 111(d) of the Act,
Section 113 of PURPA,
Finally, § 114 of the Act,
Titles I and III also prescribe certain procedures to be followed by the state regulatory authority and the nonregulated utility when considering the proposed standards. Each standard is to be examined at a public hearing after notice, and a written statement of reasons must be made available to the public if the standards are not adopted.
The Secretary of Energy, any affected utility, and any consumer served by an affected utility is given the right to intervene and participate in any rate-related proceeding considering the Title I standards.
Titles I and III also set forth certain reporting requirements. Within one year of PURPA‘s enactment, and annually thereafter for 10 years, each state regulatory authority and nonregulated utility is to report to the Secretary “respecting its consideration of the standards established.”
Despite the extent and detail of the federal proposals, however, no state authority or nonregulated utility is required to
B
Section 210
Section 210 of PURPA‘s Title II,
In order to overcome the first of these perceived problems, § 210(a) directs FERC, in consultation with state regulatory authorities, to promulgate “such rules as it determines necessary to encourage cogeneration and small power production,” including rules requiring utilities to offer to sell electricity to, and purchase electricity from, qualifying cogeneration and small power production facilities. Section 210(f),
To solve the second problem perceived by Congress, § 210(e),
Pursuant to this statutory authorization, FERC has adopted regulations relating to purchases and sales of electricity to and from cogeneration and small power facilities. See
II
In April 1979, the State of Mississippi and the Mississippi Public Service Commission, appellees here, filed this action in the United States District Court for the Southern District of Mississippi against FERC and the Secretary of Energy, seeking a declaratory judgment that PURPA‘s Titles I and III and § 210 are unconstitutional. App. 3.15 Appellees maintained that PURPA was beyond the scope of congressional power under the Commerce Clause and that it constituted an invasion of state sovereignty in violation of the Tenth Amendment.16
Following cross-motions for summary judgment, the District Court, in an unreported opinion, held that in enacting PURPA Congress had exceeded its powers under the Commerce Clause. App. to Juris. Statement 1a. The court observed that the Mississippi Public Service Commission by state statute possessed the “power and authority to regulate and control intrastate activities and policies of all utilities operating within the sovereign state of Mississippi.” Id., at 2a. Relying on Carter v. Carter Coal Co., 298 U. S. 238 (1936), the court stated: “There is literally nothing in the Commerce Clause of the Constitution which authorizes or justifies the federal government in taking over the regulation and control of public utilities. These public utilities were ac
Relying on National League of Cities v. Usery, 426 U. S. 833 (1976), the court also concluded that PURPA trenches on state sovereignty.17 It therefore pronounced the statutory provisions void because “they constitute a direct intrusion on integral and traditional functions of the State of Mississippi.” App. to Juris. Statement 8a-9a. For reasons it did not explain, the court also relied on the guarantee of a republican form of government,
FERC and the Secretary of Energy appealed directly to this Court pursuant to
III
The Commerce Clause
We readily conclude that the District Court‘s analysis and the appellees’ arguments are without merit so far as they concern the Commerce Clause. To say that nothing in the Commerce Clause justifies federal regulation of even the intrastate operations of public utilities misapprehends the proper role of the courts in assessing the validity of federal legislation promulgated under one of Congress’ plenary powers. The applicable standard was reiterated just last Term in Hodel v. Indiana, 452 U. S. 314 (1981):
“It is established beyond peradventure that ‘legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality....’ Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 15 (1976).... A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, or that there is no reasonable connection between the regulatory means selected and the asserted ends.” Id., at 323-324.18
Despite these expansive observations by this Court, appellees assert that PURPA is facially unconstitutional because it does not regulate “commerce“; instead, it is said, the Act directs the nonconsenting State to regulate in accordance with federal procedures. This, appellees continue, is beyond Congress’ power: “In exercising the authority conferred by this clause of the Constitution, Congress is powerless to regulate anything which is not commerce, as it is powerless to do anything about commerce which is not regulation.” Carter v. Carter Coal Co., 298 U. S., at 297. The “governance of commerce” by the State is to be distinguished from commerce itself, for regulation of the former is said to be outside the plenary power of Congress.19
It is further argued that the proper test is not whether the regulated activity merely “affects” interstate commerce but, instead, whether it has “a substantial effect” on such commerce, citing JUSTICE REHNQUIST‘s opinion concurring in the judgment in the Hodel cases, 452 U. S., at 311-312. PURPA, appellees maintain, does not meet this standard.
The difficulty with these arguments is that they disregard entirely the specific congressional finding, in § 2 of the Act,
The Court heretofore has indicated that federal regulation of intrastate power transmission may be proper because of the interstate nature of the generation and supply of electric power. FPC v. Florida Power & Light Co., 404 U. S. 453 (1972). Our inquiry, then, is whether the congressional find
The legislative history provides a simple answer: there is ample support for Congress’ conclusions. The hearings were extensive. Committees in both Houses of Congress noted the magnitude of the Nation‘s energy problems and the need to alleviate those problems by promoting energy conservation and more efficient use of energy resources. See S. Rep. No. 95-442, at 7-10; H. R. Rep. No. 95-543, vol. I, pp. 5-10 (1977); H. R. Rep. No. 95-496, pt. 4, pp. 3-7, 125-130 (1977).20 Congress was aware that domestic oil production had lagged behind demand and that the Nation had become increasingly dependent on foreign oil. Id., at 3. The House Committee observed: “Reliance upon imported oil to meet the bulk of U. S. oil demands could seriously jeopardize the stability of the Nation‘s economy and could undermine the independence of the United States.” Ibid. See H. R. Rep. No. 95-543, vol. I, at 5-6. Indeed, the Nation had recently experienced severe shortages in its supplies of natural gas. Id., at 7. The House and Senate Committees both noted that the electricity industry consumed more than 25% of the total energy resources used in this country while supplying only 12% of the user demand for energy. S. Rep. No. 95-442, at 7-8; H. R. Rep. No. 95-496, pt. 4, at 125. In recent years, the electricity utility industry had been beset by numerous problems, id., at 129, which resulted in higher bills for the consuming public, a result exacerbated by the rate structures employed by most utilities. S. Rep. No. 95-442, at 26. Congress naturally concluded that the energy prob
Congress also determined that the development of cogeneration and small power production facilities would conserve energy. The evidence before Congress showed the potential contribution of these sources of energy: it was estimated that if proper incentives were provided, industrial cogeneration alone could account for 7%-10% of the Nation‘s electrical generating capacity by 1987. S. Rep. No. 95-442, at 21, 23.
We agree with appellants that it is difficult to conceive of a more basic element of interstate commerce than electric energy, a product used in virtually every home and every commercial or manufacturing facility. No State relies solely on its own resources in this respect. See FPC v. Florida Power & Light Co., supra. Indeed, the utilities involved in this very case, Mississippi Power & Light Company and Mississippi Power Company, sell their retail customers power that is generated in part beyond Mississippi‘s borders, and offer reciprocal services to utilities in other States. App. 93-94. The intrastate activities of these utilities, although regulated by the Mississippi Public Service Commission, bring them within the reach of Congress’ power over interstate commerce. See FPC v. Florida Power & Light Co., 404 U. S., at 458; New England Power Co. v. New Hampshire, 455 U. S. 331 (1982).22
Even if appellees were correct in suggesting that PURPA will not significantly improve the Nation‘s energy situation, the congressional findings compel the conclusion that “the means chosen by [Congress are] reasonably adapted to the end permitted by the Constitution.” Hodel v. Virginia Surface Mining & Recl. Assn., Inc., 452 U. S., at 276, quoting Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 262 (1964). It is not for us to say whether the means chosen by Congress represent the wisest choice. It is sufficient that Congress was not irrational in concluding that limited federal regulation of retail sales of electricity and natural gas, and of relationships between cogenerators and electric utilities, was essential to protect interstate commerce. That is enough to place the challenged portions of PURPA within Congress’ power under the Commerce Clause.23 Because PURPA‘S provisions concern private nonregulated utilities as well as state commissions, the statute necessarily is valid at least insofar as it regulates private parties. See Hodel v. Virginia Surface Mining & Recl. Assn., Inc., 452 U. S., at 286.
IV
The Tenth Amendment
Unlike the Commerce Clause question, the Tenth Amendment issue presented here is somewhat novel. This case obviously is related to National League of Cities v. Usery, 426 U. S. 833 (1976), insofar as both concern principles of state sovereignty. But there is a significant difference as well. National League of Cities, like Fry v. United States, 421 U. S. 542 (1975), presented a problem the Court often con
PURPA, for all its complexity, contains essentially three requirements: (1) § 210 has the States enforce standards promulgated by FERC; (2) Titles I and III direct the States to consider specified ratemaking standards; and (3) those Titles impose certain procedures on state commissions. We consider these three requirements in turn:
A. Section 210. On its face, this appears to be the most intrusive of PURPA‘s provisions. The question of its constitutionality, however, is the easiest to resolve. Insofar as § 210 authorizes FERC to exempt qualified power facilities from “State laws and regulations,” it does nothing more than pre-empt conflicting state enactments in the traditional way. Clearly, Congress can pre-empt the States completely in the regulation of retail sales by electricity and gas utilities and in the regulation of transactions between such utilities and cogenerators. Cf. Southern Pacific Co. v. Arizona, 325 U. S. 761, 769 (1945). The propriety of this type of regulation—so long as it is a valid exercise of the commerce power—was made clear in National League of Cities, and was reaffirmed in Hodel v. Virginia Surface Mining & Recl. Assn.: the Federal Government may displace state regulation even though this serves to “curtail or prohibit the States’ prerogatives to make legislative choices respecting subjects the States may consider important.” 452 U. S., at 290.
Section 210‘s requirement that “each State regulatory authority shall, after notice and opportunity for public hearing, implement such rule (or revised rule) for each electric utility for which it has ratemaking authority,”
Testa v. Katt, 330 U. S. 386 (1947), is instructive and controlling on this point. There, the Emergency Price Control Act,
So it is here. The Mississippi Commission has jurisdiction to entertain claims analogous to those granted by PURPA, and it can satisfy § 210‘s requirements simply by opening its doors to claimants. That the Commission has administrative as well as judicial duties is of no significance.24 Any other
conclusion would allow the States to disregard both the pre-eminent position held by federal law throughout the Nation, cf. Martin v. Hunter‘s Lessee, 1 Wheat. 304, 340-341 (1816), and the congressional determination that the federal rights granted by PURPA can appropriately be enforced through state adjudicatory machinery. Such an approach, Testa emphasized, “flies in the face of the fact that the States of the Union constitute a nation,” and “disregards the purpose and effect of Article VI of the Constitution.” 330 U. S., at 389.
B. Mandatory Consideration of Standards. We acknowledge that “the authority to make ... fundamental ... decisions” is perhaps the quintessential attribute of sovereignty. See National League of Cities v. Usery, 426 U. S., at 851. Indeed, having the power to make decisions and to set policy is what gives the State its sovereign nature. See Bates v. State Bar of Arizona, 433 U. S. 350, 360 (1977) (State Supreme Court speaks as sovereign because it is the “ultimate body wielding the State‘s power over the practice of law“). It would follow that the ability of a state legislative (or, as here, administrative) body—which makes decisions and sets policy for the State as a whole—to consider and promulgate regulations of its choosing must be central to a State‘s role in the federal system. Indeed, the 19th-century view, expressed in a well-known slavery case, was that Congress “has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it.” Kentucky v. Dennison, 24 How. 66, 107 (1861).
Recent cases, however, demonstrate that this rigid and isolated statement from Kentucky v. Dennison—which suggests that the States and the Federal Government in all circumstances must be viewed as coequal sovereigns—is not representative of the law today.25 While this Court never
Federal Government the authority to exercise “military or legislative power over state governments,” instead “allow[ing] Congress to pass laws directly affecting individuals.” Post, at 795. If JUSTICE O‘CONNOR means this rhetorical assertion to be taken literally, it is demonstrably incorrect. See, e. g., Transportation Union v. Long Island R. Co., 455 U.S. 678 (1982); Fry v. United States, 421 U.S. 542 (1975); Parden v. Terminal R. Co., 377 U.S. 184 (1964); California v. Taylor, 353 U.S. 553 (1957); Case v. Bowles, 327 U.S. 92 (1946); United States v. California, 297 U.S. 175 (1936).
Whatever all this may forebode for the future, or for the scope of federal authority in the event of a crisis of national
Our recent cases also demonstrate that the Federal Government, at least in certain circumstances, can structure the State‘s exercise of its sovereign powers. In National League of Cities v. Usery, supra, for example, the Court made clear that the State‘s regulation of its relationship with its employees is an “undoubted attribute of state sovereignty.” 426 U.S., at 845. Yet, by holding “unimpaired” California v. Taylor, 353 U.S. 553 (1957), which upheld a federal labor regulation as applied to state railroad employees, 426 U.S., at 854, n. 18, National League of Cities acknowledged that not all aspects of a State‘s sovereign authority are immune from federal control. This analysis was restated in Hodel v. Virginia Surface Mining & Recl. Assn., supra, which indicated that federal regulations are subject to Tenth Amendment attack only if they “regulat[e] the ‘States as States,‘” “address matters that are indisputably ‘attributes of state sovereignty,‘” and impair the States’ “ability to structure integral operations in areas of traditional functions.” 452 U.S., at 287-288, quoting National League of Cities v. Usery, 426 U.S., at 854, 845, 852. And even when these requirements are met, “[t]here are situations in which the nature of the federal interest advanced may be such that it justifies state submission.” Hodel v. Virginia Surface Mining & Recl. Assn., Inc., 452 U.S., at 288, n. 29.
Similarly here, Congress could have pre-empted the field, at least insofar as private rather than state activity is concerned; PURPA should not be invalid simply because, out of deference to state authority, Congress adopted a less intrusive scheme and allowed the States to continue regulating in the area on the condition that they consider the suggested federal standards.29 While the condition here is affirmative in nature—that is, it directs the States to entertain proposals—nothing in this Court‘s cases suggests that the nature of the condition makes it a constitutionally improper one. There is nothing in PURPA “directly compelling” the States to enact a legislative program. In short, because the two challenged Titles simply condition continued state involvement in a pre-emptible area on the consideration of federal proposals, they do not threaten the States’ “separate and independent existence,” Lane County v. Oregon, 7 Wall. 71, 76 (1869); Coyle v. Oklahoma, 221 U.S. 559, 580 (1911), and do not impair the ability of the States “to function effectively
We recognize, of course, that the choice put to the States—that of either abandoning regulation of the field altogether or considering the federal standards—may be a difficult one. And that is particularly true when Congress, as is the case here, has failed to provide an alternative regulatory mechanism to police the area in the event of state default. Yet in other contexts the Court has recognized that valid federal enactments may have an effect on state policy and may, indeed, be designed to induce state action in areas that otherwise would be beyond Congress’ regulatory authority. Thus in Oklahoma v. CSC, 330 U.S. 127 (1947), the Court upheld Congress’ power to attach conditions to grants-in-aid received by the States, although the condition under attack involved an activity that “the United States is not concerned with, and has no power to regulate.” Id., at 143. The Tenth Amendment, the Court declared, “has been consistently construed ‘as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end,‘” ibid., quoting United States v. Darby, 312 U.S. 100, 124 (1941)—the end there being the disbursement of federal funds. Thus it cannot be constitutionally determinative that the federal regulation is likely to move the States to act in a given way, or even to “coerc[e] the States” into assuming a regulatory role by affecting their “freedom to make decisions in areas of ‘integral governmental functions.‘” Hodel v. Virginia Surface Mining & Recl. Assn., Inc., 452 U.S., at 289.
Equally as important, it has always been the law that state legislative and judicial decisionmakers must give preclusive effect to federal enactments concerning nongovernmental activity, no matter what the strength of the competing local interests. See Martin v. Hunter‘s Lessee, 1 Wheat., at 340-341. This requirement follows from the nature of gov-
To be sure, PURPA gives virtually any affected person the right to compel consideration of the statutory standards through judicial action. We fail to see, however, that this places any particularly onerous burden on the State. Mississippi by statute already grants “[a]ny interested person . . . the right to petition the [Public Service] [C]ommission for issuance, amendment or repeal of a rule or regulation,”
It is hardly clear on the statute‘s face, then, that PURPA‘s standing and appeal provisions grant any rights beyond those presently accorded by Mississippi law, and appellees point to no specific provision of the Act expanding on the State‘s existing, liberal approach to public participation in ratemaking.31 In this light, we again find the principle of Testa v. Katt, supra, controlling: the State is asked only to make its administrative tribunals available for the vindication of federal as well as state-created rights. PURPA, of course, establishes as federal policy the requirement that state commissions consider various ratemaking standards, and it gives individuals a right to enforce that policy; once it is established that the requirement is constitutionally supportable, “the obligation of states to enforce these federal laws is not lessened by reason of the form in which they are cast or the remedy which they provide.” Testa v. Katt, 330 U.S., at 391. See Second Employers’ Liability Cases, 223 U.S. 1, 57 (1912).
In short, Titles I and III do not involve the compelled exercise of Mississippi‘s sovereign powers. And, equally important, they do not set a mandatory agenda to be considered in all events by state legislative or administrative decisionmakers. As we read them, Titles I and III simply establish requirements for continued state activity in an otherwise preemptible field.32 Whatever the constitutional problems as-
C. The Procedural Requirements.
Titles I and III also require state commissions to follow certain notice and comment procedures when acting on the proposed federal standards. In a way, these appear more intrusive than the “consideration” provisions; while the latter are essentially hortatory, the procedural provisions obviously are prescriptive. Appellants and amici Maryland et al. argue that the procedural requirements simply establish minimum due process standards, something Mississippi appears already to provide,34 and therefore may be upheld as an exercise of Con-
The judgment of the District Court is reversed.
It is so ordered.
JUSTICE POWELL, concurring in part and dissenting in part.
The
Most, if not all, of the States have administrative bodies—usually commissions—that regulate electric and gas public utility companies. As these utilities normally are given monopoly jurisdiction, they are extensively regulated both substantively and procedurally by state law. Until now, with limited exceptions, the Federal Government has not attempted to pre-empt this important state function, and certainly has not undertaken to prescribe the procedures by which state regulatory bodies make their decisions. The PURPA, for the first time, breaks with this longstanding deference to principles of federalism.
Now, regardless of established procedures before state administrative regulatory agencies and of state law with respect to judicial review, the PURPA forces federal procedures on state regulatory institutions. The PURPA prescribes rules directing that “the Secretary [of Energy], any affected electric utility, or any electric consumer of an affected electric utility may intervene and participate as a matter of right” in regulatory proceedings required by the PURPA respecting electrical rates.1 It directs that “[a]ny person (including the Secretary) may bring an action to enforce” the obligations with respect to electrical rate consideration that the PURPA lays upon state regulatory commissions.2 The statute provides that “[a]ny person (including
II
In sustaining these provisions of the Act, the Court reasons that Congress can condition the utility regulatory activities of States on any terms it pleases since, under the Commerce Clause, Congress has the power to pre-empt completely all such activities. Ante, at 765-766. Under this “threat of pre-emption” reasoning, Congress—one supposes—could reduce the States to federal provinces. But as National League of Cities v. Usery, 426 U.S. 833, 841 (1976), stated, and indeed as the structure of the Court‘s opinion today makes plain, ante, at 753 and 758, the Commerce Clause and the Tenth Amendment embody distinct limitations on federal power. That Congress has satisfied the one demonstrates nothing as to whether Congress has satisfied the other.4
I limit this dissent to the provisions of the PURPA identified above. Despite the appeal—and indeed wisdom—of JUSTICE O‘CONNOR‘s evocation of the principles of federalism, I believe precedents of this Court support the constitutionality of the substantive provisions of this Act on this facial attack. See Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264 (1981); Testa v. Katt, 330 U.S. 386 (1947). Accordingly, to the extent the procedural provisions may be separable, I would affirm in part and reverse in part.
JUSTICE O‘CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in the judgment in part and dissenting in part.
I agree with the Court that the Commerce Clause supported Congress’ enactment of the
Titles I and III of PURPA require state regulatory agencies to decide whether to adopt a dozen federal standards governing gas and electric utilities.2 The statute describes, in some detail, the procedures state authorities must fol-
State legislative and administrative bodies are not field offices of the national bureaucracy. Nor are they think tanks to which Congress may assign problems for extended study. Instead, each State is sovereign within its own domain, governing its citizens and providing for their general welfare. While the Constitution and federal statutes define the boundaries of that domain, they do not harness state power for national purposes. The Constitution contemplates “an indestructible Union, composed of indestructible States,” a system in which both the State and National Governments retain a “separate and independent existence.” Texas v. White, 7 Wall. 700, 725 (1869); Lane County v. Oregon, 7 Wall. 71, 76 (1869).
Just last Term this Court identified three separate inquiries underlying the result in National League of Cities. A congressional enactment violates the Tenth Amendment, we observed, if it regulates the “‘States as States,‘” addresses “matters that are indisputably ‘attribute[s] of state sovereignty,‘” and “directly impair[s] [the States‘] ability to ‘structure integral operations in areas of traditional governmental functions.‘” Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 287-288 (1981) (quoting National League of Cities, supra, at 854, 845, 852). See also Transportation Union, supra, at 684.4
Application of these principles to the present case reveals the Tenth Amendment defects in Titles I and III. Plainly
I find it equally clear that Titles I and III address “attribute[s] of state sovereignty.” Even the Court recognizes that “the power to make decisions and to set policy is what gives the State its sovereign nature.” Ante, at 761. The power to make decisions and set policy, however, embraces more than the ultimate authority to enact laws; it also includes the power to decide which proposals are most worthy of consideration, the order in which they should be taken up, and the precise form in which they should be debated. PURPA intrudes upon all of these functions. It chooses 12 proposals, forcing their consideration even if the state agency deems other ideas more worthy of immediate attention. In addition, PURPA hinders the agency‘s ability to schedule consideration of the federal standards.5 Finally, PURPA specifies, with exacting detail, the content of the standards that will absorb the agency‘s time.6
If Congress routinely required the state legislatures to debate bills drafted by congressional committees, it could hardly be questioned that the practice would affect an attribute of state sovereignty. PURPA, which sets the
Finally, PURPA directly impairs the States’ ability to “structure integral operations in areas of traditional governmental functions.” Utility regulation is a traditional function of state government,7 and the regulatory commission is the most integral part of that function. By taxing the limited resources of these commissions, and decreasing their ability to address local regulatory ills, PURPA directly impairs the power of state utility commissions to discharge their traditional functions efficiently and effectively.8
The Court sidesteps this analysis, suggesting that the States may escape PURPA simply by ceasing regulation of public utilities. Even the Court recognizes that this choice “may be a difficult one,” ante, at 766, and that “it may be unlikely that the States will or easily can abandon regulation of public utilities to avoid PURPA‘s requirements.” Ante, at 767. In fact, the Court‘s “choice” is an absurdity, for if its analysis is sound, the Constitution no longer limits federal regulation of state governments. Under the Court‘s analysis, for example, National League of Cities v. Usery, 426
The choice put to the States by the
The Court defends its novel decision to permit federal conscription of state legislative power by citing three cases upholding statutes that “in effect directed state decisionmakers to take or to refrain from taking certain actions.” Ante, at 762. Testa v. Katt, 330 U. S. 386 (1947), is the most suggestive of these decisions.13 In Testa, the Court held that state trial courts may not refuse to hear a federal claim if “th[e] same type of claim arising under [state] law would be enforced by that State‘s courts.” Id., at 394. A facile reading of Testa might suggest that state legislatures must also entertain congressionally sponsored business, as long as the federal duties are similar to existing state obligations. Application of Testa to legislative power, however, vastly expands the scope of that decision. Because trial courts of general jurisdiction do not choose the cases that they hear, the
The Court, finally, reasons that because Congress could have pre-empted the entire field of intrastate utility regulation, the Constitution should not forbid PURPA‘s “less intrusive scheme.” Ante, at 765, and n. 29.15 The Court‘s eval-
I do not believe, moreover, that Titles I and III of PURPA are less intrusive than pre-emption.17 When Congress pre-
Federal pre-emption is less intrusive than PURPA‘s approach for a second reason. Local citizens hold their utility commissions accountable for the choices they make. Citizens, moreover, understand that legislative authority usually includes the power to decide which ideas to debate, as well as which policies to adopt. Congressional compulsion of state agencies, unlike pre-emption, blurs the lines of political accountability and leaves citizens feeling that their representatives are no longer responsive to local needs.19
The foregoing remarks suggest that, far from approving a minimally intrusive form of federal regulation, the Court‘s
In addition to promoting experimentation, federalism enhances the opportunity of all citizens to participate in representative government. Alexis de Tocqueville understood well that participation in local government is a cornerstone of American democracy:
“It is incontestably true that the love and the habits of republican government in the United States were engendered in the townships and in the provincial assemblies. [I]t is this same republican spirit, it is these manners and customs of a free people, which are engendered and nurtured in the different States, to be afterwards applied to the country at large.” 1 A. de Tocqueville, Democracy
in America 181 (H. Reeve trans. 1961).28
Citizens, however, cannot learn the lessons of self-government if their local efforts are devoted to reviewing proposals formulated by a faraway national legislature. If we want to preserve the ability of citizens to learn democratic processes through participation in local government, citizens must retain the power to govern, not merely administer, their local problems.
Finally, our federal system provides a salutary check on governmental power. As Justice Harlan once explained, our ancestors “were suspicious of every form of all-powerful central authority.” Harlan, supra n. 16, at 944. To curb this evil, they both allocated governmental power between state and national authorities, and divided the national power among three branches of government. Unless we zealously protect these distinctions, we risk upsetting the balance of power that buttresses our basic liberties. In analyzing this brake on governmental power, Justice Harlan noted that “[t]he diffusion of power between federal and state authority . . . takes on added significance as the size of the federal bureaucracy continues to grow.” Ibid.29 Today, the Court disregards this warning and permits Congress to kidnap state utility commissions into the national regulatory family. Whatever the merits of our national energy legislation, I am
II
As explained above, the Court‘s decision to uphold Titles I and III violates the principles of National League of Cities v. Usery, 426 U. S. 833 (1976), and threatens the values promoted by our federal system. The Court‘s result, moreover, is at odds with our constitutional history, which demonstrates that the Framers consciously rejected a system in which the National Legislature would employ state legislative power to achieve national ends.
The principal defect of the
The Constitution cured this defect by permitting direct contact between the National Government and the individual citizen, a change repeatedly acknowledged by the delegates assembled in Philadelphia. George Mason, for example, declared:
“Under the existing Confederacy, Congress represent[s] the States not the people of the States: their acts operate on the States not on the individuals. The case will be
changed in the new plan of Government.” 1 The Records of the Federal Convention of 1787, p. 133 (M. Farrand ed. 1911) (hereinafter Farrand) (abbreviations expanded in this and subsequent quotations).
Hamilton subsequently explained to the people of New York that the Constitution marked the “difference between a league and a government,” because it “extend[ed] the authority of the union to the persons of the citizens,—the only proper objects of government.” The Federalist No. 15, supra, at 95. Similarly, Charles Pinckney told the South Carolina House of Representatives that “the necessity of having a government which should at once operate upon the people, and not upon the states, was conceived to be indispensable by every delegation present; . . . however they may have differed with respect to the quantum of power, no objection was made to the system itself.” 4 Elliot‘s Debates on the Federal Convention 256 (2d ed. 1863).
The speeches and writings of the Framers suggest why they adopted this means of strengthening the National Government. Mason, for example, told the Convention that because “punishment could not [in the nature of things be executed on] the States collectively,” he advocated a National Government that would “directly operate on individuals.” 1 Farrand 34. Hamilton predicted that a National Government forced to work through the States would “degenerate into a military despotism” because it would have to maintain a “large army, continually on foot” to enforce its will against the States. The Federalist No. 16, p. 101 (J. Cooke ed. 1961). See also id., at 102; The Federalist No. 15, supra, at 95-96.
Thus, the Framers concluded that government by one sovereign through the agency of a second cannot be satisfactory. At one extreme, as under the
At the same time that the members of the Constitutional Convention fashioned this principle, they rejected two proposals that would have given the National Legislature power to supervise directly state governments. The first proposal would have authorized Congress “to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof.” 1 Farrand 21. The delegates never even voted on this suggestion. James Madison moved to postpone it, stating that “the more he reflected on the use of force, the more he doubted the practicability, the justice and the efficacy of it when applied to people collectively and not individually.” Id., at 54. Several other delegates echoed his concerns,31 and Madison ultimately reported that “[t]he practicability of making laws, with coercive sanc-
The second proposal received more favorable consideration. Virginia‘s Governor Randolph suggested that Congress should have the power “to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union.” 1 id., at 21. On May 31, 1787, the Committee of the Whole approved this proposal without debate. Id., at 61. A week later, Pinckney moved to extend the congressional negative to all state laws “which [Congress] should judge to be improper.” Id., at 164. Numerous delegates criticized this attempt to give Congress unbounded control over state lawmaking. Hugh Williamson, for example, thought “the State Legislatures ought to possess independent powers in cases purely local,” id., at 171, while Elbridge Gerry thought Pinckney‘s idea might “enslave the States.” Id., at 165. After much debate, the Convention rejected Pinckney‘s suggestion.
Late in July, the delegates reversed their approval of even Randolph‘s more moderate congressional veto. Several delegates now concluded that the negative would be “terrible to the States,” “unnecessary,” and “improper.” 2 id., at 27.32 Omission of the negative, however, left the new system without an effective means of adjusting conflicting state and national laws. To remedy this defect, the delegates adopted the Supremacy Clause, providing that the Federal Constitution, laws, and treaties are “the supreme Law of the Land” and that “the Judges in every State shall be bound
While this history demonstrates the Framers’ commitment to a strong central government, the means that they adopted to achieve that end are as instructive as the end itself.33 Under the
III
During his last Term of service on this Court, Justice Black eloquently explained that our notions of federalism subordinate neither national nor state interests:
“The concept does not mean blind deference to ‘States’ Rights’ any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of
both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.” Younger v. Harris, 401 U. S. 37, 44 (1971).
In this case, I firmly believe that a proper “sensitivity to the legitimate interests of both State and National Governments” requires invalidation of Titles I and III of PURPA insofar as they apply to state regulatory authorities. Accordingly, I respectfully dissent from the Court‘s decision to uphold those portions of the statute.
Notes
The PURPA grants similar intervention and participation rights to the Secretary with respect to state natural gas utility rate proceedings. See
Under the PURPA‘s Title II,
Section 210 also authorizes FERC, electric utilities, cogenerators, and small power producers to “enforce” the above implementation provision against state utility commissions.
As a separate matter, the PURPA specifies the procedural requirements for the state regulatory agencies’ consideration and determination of the PURPA‘s federally proposed standards. See
The Court also cites Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658 (1979), to support its holding. Ante, at 762. The case stands for the unremarkable proposition that a district court, after adjudicating a contest under federal law between a State and Indian tribes over fishing rights, may order the losing State to abide by the court‘s decision. Nothing in our Fishing Vessel Assn. opinion authorized the federal court to amend the structure of a state political institution.
In both Hodel and United Transportation Union we further noted that, even when these three requirements are met, “the nature of the federal interest advanced may be such that it justifies state submission.” Hodel, 452 U.S., at 288, n. 29; Transportation Union, 455 U.S., at 684, n. 9. Neither of those cases involved such an exception to National League of Cities, and the Court has not yet explored the circumstances that might justify such an exception.“(1) For purposes of this section and section 2623(b)(5) of this title—
“(A) The term ‘advertising’ means the commercial use, by an electric utility, of any media, including newspaper, printed matter, radio, and television, in order to transmit a message to a substantial number of members of the public or to such utility‘s electric consumers.
“(B) The term ‘political advertising’ means any advertising for the purpose of influencing public opinion with respect to legislative, administrative, or electoral matters, or with respect to any controversial issue of public importance.
“(C) The term ‘promotional advertising’ means any advertising for the purpose of encouraging any person to select or use the service or additional service of an electric utility or the selection or installation of any appliance or equipment designed to use such utility‘s service.
“(2) For purposes of this subsection and section 2623(b)(5) of this title, the terms ‘political advertising’ and ‘promotional advertising’ do not include—
“(A) advertising which informs electric consumers how they can conserve energy or can reduce peak demand for electric energy,
“(B) advertising required by law or regulation, including advertising required under part 1 of title II of the National Energy Conservation Policy Act . . . ,
“(C) advertising regarding service interruptions, safety measures, or emergency conditions,
“(D) advertising concerning employment opportunities with such utility,
“(E) advertising which promotes the use of energy efficient appliances, equipment or services, or
“(F) any explanation or justification of existing or proposed rate schedules, or notifications of hearings thereon.”
See also
The partial dissent finds Fry v. United States inapposite because the wage freeze there at issue “‘displaced no state choices as to how governmental operations should be structured . . . . Instead, it merely required that the wage scales and employment relationships which the States themselves had chosen be maintained . . . .‘” Post, at 784, n. 13, quoting National League of Cities v. Usery, 426 U.S. 833, 853 (1976). It seems absurd to suggest, however, that a federal veto of the States’ chosen method of structuring their employment relationships is less intrusive in any realistic sense than are PURPA‘s mandatory consideration provisions. Finally, JUSTICE O‘CONNOR would distinguish Fishing Vessel Assn. as involving only “[t]he power of a court to enjoin adjudicated violations of federal law.” Post, at 784, n. 13. In doing so, however, the Court unambiguously held that federal law could impose an affirmative obligation upon state officials to prepare administrative regulations—a holding of obvious relevance to this case.
See FPC v. East Ohio Gas Co., 338 U. S. 464, 489 (1950) (Jackson, J., dissenting) (“Long before the Federal Government could be stirred to regulate utilities, courageous states took the initiative and almost the whole body of utility practice has resulted from their experiences“).JUSTICE O‘CONNOR‘s partial dissent‘s response to this is peculiar. On the one hand, she suggests that the States might prefer that Congress simply pre-empt the field, since that “would leave them free to exercise their power in other areas.” Post, at 787. Yet JUSTICE O‘CONNOR elsewhere acknowledges the importance of utilities regulation to the States, post, at 781, and emphasizes that local experimentation and self-determination are essential aspects of the federal system. Post, at 787-791. PURPA, of course, permits the States to play a continued role in the utilities field, and gives full force to the States’ ultimate policy choices. Certainly, it is a curious type of federalism that encourages Congress to pre-empt a field entirely, when its preference is to let the States retain the primary regulatory role.
See also Stewart, supra n. 19, at 1241-1244 (discussing “political safeguards of federalism“); Rockefeller, supra n. 20, at 10.The partial dissent does not quarrel with the propositions that Congress may pre-empt the States in the regulation of private conduct, that Con-