*1 WYOMING v. OKLAHOMA 4, 1991 Argued January 22, 1992 No. Orig. November Decided *3 White, J., opinion Court, Blackmun, delivered in which Ste- vens, O’Connor, Kennedy, Souter, JJ., Scalia, J., joined. and filed a dissenting opinion, Rehnquist, in J., Thomas, J., which joined, C. and post, Thomas, p. J., dissenting 461. filed a opinion, Rehnquist, in which J., Scalia, J., C. joined, post, p. 473.
Mary Attorney Guthrie, B. Senior Assistant General of Wyoming, argued plaintiff. the cause for her on With Joseph Meyer, Attorney briefs General, were B. and Steve Attorneys Assistant M. Colgan, and Vied Senior Jones C. General. Oklahoma, ar Leader, Assistant General Attorney
Neal the brief were him on for defendant. With the cause gued L. and Thomas General, Spencer, H. Henry, Attorney Robert General.* Attorney Assistant of the Court. delivered the opinion White
Justice a motion for leave submitted 14, 1988, Wyoming On April jurisdiction under this Court’s original file a complaint Ill, complaint § of the Art. Constitution. provided 1988) 939.1 45, §§939 and Stat., (Supp. Tit. Okla. challenged coal-fired electric generat- Oklahoma (Act),1 requires which to burn a for sale Oklahoma producing power ing plants coal. coal at least 10% Oklahoma-mined mixture of containing violates the that the Act Com- a declaration sought and an § Clause, Const., I, injunction Art. cl. merce Jr., Mooz, Kite, E. * Marilyn Wolfe, Lawrence J. and William filed a curiae. Association as amicus Wyoming Mining brief for full, 1, 2,1986 §§ In 26, 1986, Okla. Sess. Laws 73. of Mar. Ch. 1 Act provides: §939 coal generating plants Burning electric
“Coal-fired — in Okla- providing power electric for sale to the consumer “All entities plants power located Okla- generating said from coal-fired homa percent a minimum of ten burn a mixture of coal that contains *4 homa shall (British (10%) coal, Thermal mined as calculated on a BTU Oklahoma Unit) basis.” provides: further Section 939.1 impairment of certain contracts
“Cost increases to consumers and prohibited entity consumer or exceed
“The cost to the shall not increase cost to the prefer- existing long-term for out-of-state coal energy the cost of contracts preference given provided in Section including Oklahoma vendors as ence of Title 74 of the Oklahoma statutes.” 85.32 statute, Stat., 74, (1981), § provides “that The referenced Okla. Tit. 85.32 preference quality shall not be for articles of inferior to those offered such (5%) state, percent from but a differential of not to exceed five outside materials, may supplies provisions and be allowed in the cost of Oklahoma equal quality.” of
permanently enjoining enforcement of the Act.
30,
On June
granted Wyoming
we
complaint
leave to file its bill of
objections Wyoming
standing
over Oklahoma’s
lacked
bring
any
permitted
this action
and,
event,
not
should
original jurisdiction.
to invoke this Court’s
1231.
August
Oklahoma next
filed motion to
dismiss on
raising
arguments.
these same
We
denied motion to dis-
miss on October
1988, and ordered
to answer
Wyoming’s complaint
days.
within 30
The Master was received or- dered filed on 1,1990. October U. S. 803. Based Special findings him, record before Master recommended parties object, fact, to which the do not and conclusions generally supporting Wyoming’s summary of law motion for judgment rejecting summary Oklahoma’s motion for judgment. specifically, Report More recommends that hold, first, that has to sue and that appropriate original jurisdiction; this case is to our and sec- against ond, that the Act discriminates interstate commerce practical on its face and in effect, that this discrimination is justified by any purpose not advanced Oklahoma, and that the Act therefore violates the Commerce Clause. Re- port also recommends that the Court either dismiss the ac- utility prej- tion as it an relates to Oklahoma-owned without *5 Wyoming appropriate udice to to assert claim in forum, its an or, alternatively, may find the Act severable to the extent it constitutionally applied utility. be to that
Subsequently,
parties
requested
the
the Court
to enter a
stipulated
adopting
Special
Report
decree
the
Master's
and
containing
conclusions of law.2 If the decree was to rule on
constitutionality
Act, however,
preferred
the
to
argued,
have that
issue briefed and
and the case was set
argument.
down for oral
I facts, gathered by The salient from those recommended Special record, the Master and from other materials in the are as follows. -
Wyoming major coal-producing is a State and in 1988 shipped ming coal to 19 other States.3 While the State of coal, impose upon does not itselfsell does severance tax privilege severing extracting or coal from land within Wyo. (1990 Supp.1991). its boundaries. Stat. to against company extracting tax is assessed the sonor payable coal andis whenthe coal is extracted. The valuation purposes the coal severance tax basedon Wyoming fair marketvalue. has collectedseverancetaxes ig coal extracted e h t 2 In the proposed decree, theparties agreed Special ings Master's of factand his conclusions Act, applied privately utilities, Clause, that the as owned violatedtheCommerce that, applied utility, but as Oklahoma-owned theAct wasconstitutional. agreed application Act private enjoined,Wyomingagreed utilitieswouldbe theAct would enjoined utility. not as to the owned 8.3%. as to the state utility. owned just Only 3 In1988 over 163.8milliontons of coal was mined. Wyoming's production pur 14.6% of coal was sold in-state. Oklahoma making largest chased 8% of the coal mined it the third out-of-state con sumer behind Texas at 19.7%and Kansas at 8.3%. *6 that sell
mining companies coal to four electric Oklahoma utilities.
The 40th Oklahoma Legislature, at its session in June a concurrent resolution util- adopted Oklahoma “requesting ity companies using coal-fired to consider generating plants plans blend ten coal with percent Oklahoma their present use of coal; a result of Wyoming effecting keeping portion dollars in Oklahoma and ratepayer economic promoting development.” Okla. S. Res. 40th Sess. Okla. Leg., (hereinafter 21). Laws 1694 Res. The recitals and resolu- tions relevant part stated:
“WHEREAS, the use of Oklahoma coal would save significant out-of-state coal from the freight charges State of and Wyoming;
“WHEREAS, on such savings charges freight could offset costs ad- any possible associated with plant justments;
“WHEREAS, the coal-fired electric used plants being Oklahoma utilities are using Wyoming exclusively coal; and
“WHEREAS, are ratepayers paying annually coal; million Wyoming $300 “WHEREAS, a 1982 Ozark Council states that Report million of the ratepayers $9 dollars was as sever- paid ance tax to the State of Wyoming ....
“NOW, BE IT THEREFORE, RESOLVED “THAT Oklahoma utilities using coal-fired generating consider blend of at ten plants seriously least using Oklahoma coal with coal and continue percent to meet air standards. quality
“THAT the result of such a blend would assure at least a of the portion dollars ratepayer remaining Oklahoma and enhancing economy State Oklahoma.” require- subject to the electric utilities
The four Oklahoma Company, and Electric of the Act are Oklahoma Gas ments Company Farmers and Western Oklahoma, Public Service Cooperative, privately owned, and the Grand all Electric (GRDA), Authority agency of the State of an Dam River precatory this resolu- four heeded None of these Oklahoma. *7 Legislature adopted session, second the 40th tion. At its mandating challenged 10%min- case, the in this thus the Act requested. previous purchases had the resolution imum facing Act, of the months after effective date Fifteen the by any substantially compliance utilities,4 of the less than full adopted Legislature a concurrent resolu- the next Oklahoma public directing state-owned GRDA, the Oklahoma’s tion Leg., utility, comply Res. 41st Okla. S. with the Act. Laws 1915.5 Okla. Sess. Report Special the the show set out in Master’s Charts purchases utility’s percentages of Oklahoma-mined of each Wyoming-mined an basis from 1981 coal on annual coal and However, place. have taken date, investigations prosecutions To no or misdemeanor, prosecuted the utilities Act be as a and violations of the can Oklaho upon recommendation of enjoined from further violations can Wyoming’s Response to Mining Commission. See Oklahoma’s ma’s State No. 6. Interrogatory following: the and included The recitals resolutions provided has over 700 new “WHEREAS, passage the of this law in 1986 sectors; employment mining industry in and related jobs Oklahoma’s coal and additional million of
“WHEREAS, $31 benefit of this law is an another purchases generated through the income has been taxable coal; mined and comply Authority has failed to with ‘WHEREAS, the Grand River Dam State recognize intent of the Oklahoma has said law and refused Legislature to utilize Oklahoma mined coal. THEREFORE,
“NOW, BE IT ...: RESOLVED hereby the Grand River Legislature directs “THAT the Oklahoma State coal immediately mined Authority begin purchasing Oklahoma Dam in [the Act].” the law as stated comply with through the first four months of See Report 1989. Special Master 7-8. Those charts reveal that during years through 1984, the four Oklahoma utilities purchased virtually of their 100% coal from sources. requirements Wyoming These purchases all, decreased if at in 1985 and 1986 slightly, following concurrent resolution. adoption After January 1, 1987, effective date of the Act, these utilities reduced their in coal favor of purchases Wyoming coal mined in Oklahoma.
Unrebutted that, evidence demonstrates since effec- tive Act, date of the has lost severance Wyoming taxes of $535,886 amounts in 1987, $542,352 $87,130 in the first four months of 1989.6 These estimates are based (BTU) on an of British Thermal equivalence Unit ratings, thus accounting for hotter burning Okla- propensities homa coal.7 Other unrebutted submissions confirm that has a excess such that significant mining capacity, *8 Marble, Director, Division, See Affidavit of Richard J. Minerals Tax (Exh. Wyoming Department Appendix of Revenue and B Taxation 3 to to Wyoming Summary Judgment). Motion of for Oklahoma does not contra Instead, dict these estimates. its expert, an economist familiar with en ergy issues, emphasizes only experienced and coal-related Wyoming that a more severe loss in severance tax revenues due its of to reduction prices. severance tax rate a decline in and coal market of Affidavit David (Exh. M. Appendix Weinstein 2-3 G to to Motion of Sum Oklahoma for mary Judgment). best, At suggests Oklahoma’s counteraffidavit that the estimate of high, lost severance tax revenues is a bit pointing too to the slight percentages purchased prior of Oklahoma coal to the Act as indica Wyoming tive that provide Id., did not of purchased. 100% the coal at 3. rating A coal’s efficiency BTU reflects the heat-generating of the coal when Wyoming’s burned. Coal extracted from Powder River Basin —the shipped of coal to source Oklahoma average since 1980—has a lower BTU rating than the Oklahoma Accordingly coal delivered to the utilities. by weight generate takes less Oklahoma coal the same amount of en ergy Wyoming as the coal. Because sulfur content factors into Oklaho argument, ma’s later we note here Wyoming as well that coal has a lower average coal, sulfur than content Oklahoma thus escapes less sulfur and pollutes Wyoming the air when coal is burned. up any elsewhere, sales made market cannot be loss of already Wyoming’ssupply meet risen to demand.8 has where
hHh-H judgment Special summary before the for In motion standing, again challenged Wyoming’s and Master, Oklahoma Special excepts that recommendation to the Master’s now Having respect. reject in this submission we Oklahoma’s complaint Wyoming granted over Oklahoma’s leave to file its having standing, objection motion denied Oklahoma’s and standing, parties having sub want of to dismiss for summary judgment, we on cross-motions mitted case juncture. this at inclined to dismiss action are not all import Although law- have been reluctant wholesale we principles Cali actions, into Arizona v. of-the-case (1983), rulings prior in such 605, 618-619 fornia, finality subject general principles of to the cases “should repose, changed or unforeseen is absent circumstances litigated.” previously Here, Id., at 619. Oklahoma not sues any way change suggests circumstance, whether in no issue, each brief submitted on the fact or law. In cases, cited the same and con facts, has recited the same surely arguments. course, we have the same Of structed power request date, accede to at this late Oklahoma’s clearly we convinced, not, if which we are were and wrong jurisdiction accepting not case, of this would rulings. depart prior from hesitate to our affidavit, principal consulting conducting firm One from economic industry, analysis the coal reflects Powder *9 tons, million production capacity River Basin an annual of 186.4 versus had of production actual 1987 of 127.1 million tons. Affidavit Seth Schwartz A-2). Moreover, (Appendix Response to Dismiss to Motion to the Direc Quality, Wyoming Department tor of of Environmental who oversees mines, coal programs permitting permitted for informs that as of us tons, in capacity the Powder River Basin was 318 million whereas total production from all coal mines was 146.5 million tons. Affidavit of Ran A-5). dolph (Appendix Response Wood to Motion Dismiss § pro- III, 2, Article cl. of the United States Constitution original jurisdiction vides this Court with all in cases “in Party.” Congress which a State shall abe has seen fit to designate that this Court “shall have and exclusive jurisdiction of all controversies between two or more 1251(a). § States.” 28' U. S. C. “In order to constitute a proper ‘controversy’ original jurisdiction, under our ‘it must appear complaining that wrong State has suffered a through furnishing ground the action of the other State, judicial asserting right against redress, or is the other susceptible judicial according State which is enforcement accepted principles equity sys- law or common ” jurisprudence.’ Maryland tems of Louisiana, v. 451 U. S. (1981)(quoting 725, 735-736 Missouri, Massachusetts v. (1939)); Illinois, see also New York v. 488, 490 quite Wyoming’s
We are sure that submission satisfies this agree test. We with the conclusion, Master’s arrived at after all him, consideration of the facts submitted to Wyoming clearly bring had this action. The Master observed:
“The effect of the Oklahoma statute has been to de- prive Wyoming of severance tax It revenues. is undis- puted January 1, 1987, since the effective date purchases by Act, Oklahoma electric utilities of Wyoming-mined percentage coal, as a their total coal purchases, have declined.. .. The decline came when, response adoption began to the of the Act, those utilities purchasing Oklahoma-mined that, coal. coal Act, absence of the would have been sold to Oklahoma by Wyoming producer utilities would have been sub- ject Wyoming’s to the tax when extracted. loss sev- ‘fairly erance tax revenues can be traced’ to the Act. (1981) Maryland Louisiana, See 451 U. (quoting Kentucky Rights Simon v. Eastern Welfare *10 448 (1976)).” Report
Organization, of 26, 426 41-42 U. S. Special 11.9 Master Appeals recognized denied of have that
The Master
Courts
standing
that actions taken
was
where
claim
to States
injured
agencies
a
had
State’s
States Government
United
general
economy
thereby
tax reve
in
caused a decline
App.
g., Pennsylvania
Kleppe, 174 U.
v.
S.
See, e.
nues.
(1976);
977
429 U. S.
668,
denied,
533
2d
cert.
441,
C.
F.
D.
(CA8
2d 347
Block, 771 F.
Iowa ex rel. Miller v.
State of
1985),
concluded,
He
denied,
Oklahoma consumer, and as a is not affected affected, the commerce injury cognizable type direct not suffered the thus has byon The authorities relied action. in Commerce Clause argument, Atchison, T. & v. for this Oklahoma (1911), Louisiana v. Co., F. R. 287-289 S. (1900), helpful, however, Texas, 1,S. 16-22 are not 176 U. they parens patriae than rather involved claims 9 reso initial concurrent We as well that recitals in Oklahoma’s note Oklahoma were exclu plants reflect that coal-fired electric within lution coal, recognition “$9 million sively using Wyoming with the attendant Wyo paid as tax to the State of ratepayers dollars was severance no Wyoming coal would have been sold—but ming.” Res. 21. The by Wyoming longer will be sold to the Oklahoma utilities due Act —to Wyoming, which producer subject when stands to tax extracted. succeed, the Act regain lost should its suit overturn these revenues justify “directly way as to and real’ so is thus affected a ‘substantial Maryland v. Louisi original jurisdiction.” Court’s [its] exercise this Florida, ana, Texas v. (1981); 306 U. U. S. see also Ky. Rights Organization, (1939); Simon Eastern 407-408 Welfare (1976) judicial power seeking III (plaintiff invoke Article interest”). profit personal in some must “stand *11 allegations injury of direct to the State Moreover, itself. rejected argument Washington have a similar in Hunt v. Apple Advertising State Comm’n, S. 333 In U. Washington Apple Advertising Hunt, the State Commission brought suit to declare as violative of the Commerce Clause requiring apples North Carolina statute all sold or shipped into North Carolina in closed containers be identified by grade applicable grade no other than the federal a des- or ignation apples graded. that the not were The commission statutory agency designed was a promotion pro- for the and Washington apple industry tection posed the State com- and growers of 13 state and dealers chosen from electoral by growers by districts their fellow dealers, and all of whom mandatory opera- assessments financed the commission’s vigor- tions. North Carolina officialsnamed in the suit ously standing, contested the commission’s either in own right apple industry or represented, behalf it ar- guing “personal litigation it lacked stake” in the be- agency, engaged as a cause, state it was “not itself production Washington apples shipment sale or their addressing into North Carolina.” Id., at 341. After analogues standing, commission’s to associational we turned allegations injury: to the commission’s of direct “Finally, we note that interests Commission may adversely itself affected the outcome of this litigation. paid The annual assessments the Commis- apples grown pack- sion are to the tied volume of aged Washington Apples.’ as In the event the North Carolina statute results in a contraction of the market Washington apples prevents any expan- or market might sion that occur, otherwise could reduce the amount of the assessments due the Commission and support used to its activities. This financial nexus be- tween the interests of the Commission and its constit- uents coalesces with the other factors noted above to sharpens ‘assure that concrete adverseness which largely upon court so presentation which of issues ques- constitutional depends of difficult for illumination (1962)]; [369 see Carr, Baker v. tions.’ Patterson, U. ex rel. v. Alabama also NAACP (1958).” Id., at 345. 449, 469-460 proceed nec- in Hunt allowed to was That the commission against supports Wyoming’s Oklahoma, essarily directly to the linked tax revenues are its severance where demonstrably af- of coal and have been extraction and sale by the Act. fected repeated objection, here, which is
Over Oklahoma’s appro Special this case was an concluded that Master also *12 original jurisdiction. We priate for the exercise of our one thought granting obviously agree, when this we shared and complaint Wyoming in the first instance. We leave to file its jurisdic original generally that the have observed Court’s Maryland “sparingly,” v. Louisi should be exercised tion Nevada, 534, 739; at United States v. ana, S., 451 U. (1973), accepting applies when and this Court discretion 538 original where our even as to actions between States cases, long ago: jurisdiction stated not is exclusive. As consistently interpreted years, 28 “In recent we have 1251(a) § providing discre as us with substantial U. S. C. case-by-case judgments practical as to the tion to make necessity particu original of an forum in this Court original jurisdic disputes within our constitutional lar Maryland 451 U. 743 Louisiana, tion. See v. S. (1981); Corp., Wyandotte 401 U. Ohio v. Chemicals (1971). eye with an We exercise that discretion 493,499 functioning promoting of this the most effective Court system.” federal Texas v. New Mex within overall (1983). 462 ico, U. S. 570
Specifically, imposed prudential equitable have lim- we upon original jurisdiction, itations the exercise of and of our these limitations we have said: § 1251(a)(1), Ill,
“‘We construe 28 U. S. C. as do Art. § original jurisdiction 2, cl. honor our but 2, to to make only obligatory appropriate ques- in And the cases. appropriate tion is concerns, course, of what the seri- dignity yet beyond ousness and that it claim; nec- essarily availability involves the of another forum where jurisdiction parties, there over named where the may litigated, appropriate issues tendered be and where ” may City be relief had.’ Illinois Milwaukee, v. (1972), quoted Texas, U. S. in v. California beyond peradventure It is has raised a dignity.” claim of sufficient Oklahoma, “seriousness act- ing sovereign capacity, passed directly in its which Act, Wyoming’s ability affects to collect tax revenues, severance sovereign capacity. an action in such, undertaken As Wyoming’s challenge precisely under the Commerce Clause “implicates important serious and concerns federalism fully purposes in with the accord and reach of our jurisdiction.” Maryland S., Louisiana, 451 U. 744. it not Indeed, we found “waste” of this Court’s time Maryland validity v. Louisiana to consider the of one State’s tax” “first-use which as a served, severance effect, *13 gas belonging people tax on extracted from areas to at large, to the detriment of other whose States on to consum- passed. Wyoming’s ers the tax Ibid. claim here is no less injury substantial, and touches on its direct rather than on any parens patriae. interest as mining compa-
Oklahoma makes much of the fact that the bring raising nies affected in could suit challenge, private parties aggrieved Commerce Clause as by Washington state action often do. But cf. Hunt v. Apple Advertising supra. State Comm’n, For reasons they unknown, however, have chosen to neither inter- vene in this action nor to own, file their in state or whether 452 pending to which such, action exists As no
federal court.10
g.,
adjudication
See, e.
Illinois
on this issue.
we could defer
Washington
supra,
City
v.
108;
at
Gen
Milwaukee,
98,
v.
(1972).
Corp.,
Even if such
406 U.
114
Motors
eral
Wyoming’s
proceeding,
interests would
however,
were
action
Maryland
directly represented.
Louisiana,
v.
See
not be
supra,
Mexico,
court
conduct of one
control the
State
under
Constitution
rights
another,
invasion of
must
the suit
threatened
by
magnitude
established
clear
be of serious
and must be
Jersey,
convincing
New
v. New
256
evidence.”
York
(1921);
Massachusetts,
see also
U. S.
309
Connecticut v.
(1931);
Illinois,
Missouri v.
U. S.
Wyo-
suggests this basis Oklahoma
On
solely
ming’s
reason that
interest is de minimis
for the
loss
gener-
Act
tax revenues attributable to the
has
severance
ally
than
of total
collected. See Affidavit
been less
1%
taxes
(Exh.
Wyo-
Appendix
B to
to Motion of
Richard Marble
J.
group
in the
of Oklahoma
challenge
brought
A
Oklahoma courts
upon
they
standing,
finding
was
for lack of
consumers
dismissed
injury
prohibition
increase
could not suffer
due
the Act’s
cost
Inc.
Cooperative,
See Northeast Oklahoma Electric
consumers.
(Dist.
Authority,
Craig Cty.,
River Dam
Ct.
Grand
Case No. C-88-127
(Journal
Okla.,
2,1988)
Entry
Judgment
Appendix
attached as
Sept.
Summary Judgment).
Reply Brief for Oklahoma on Motion for
*14
ming
Summary Judgment).
any
for
We
decline
invitation
key
jurisdiction
original
the exercise of this Court’s
on the
controversy.11
argument
amount in
in
is,
fact,
Oklahoma’s
Pennsylvania
no different than
the situation
faced
Virginia,
Pennsylvania
West
“The is for what one State may may, do others and there from are ten States which gas exported consumption natural is in other States. may product Besides, what be done with one natural may be done with others, and there are several States yields products great in which the earth value which are carried into other Id., States and there used.” 596. Wyoming
And so it is here. coal natural is a resource great primarily value into carried other States for and use, Wyoming significant derives revenue from this interstate “[T]he practical [Oklahoma’s] movement. effect of statute only by considering consequences must be evaluated not by considering of the statute but itself, also how chal- lenged may legitimate regulatory statute interact with the regimes of the other States and what effect arise if would not not, any event, readily We de would find the amount here to True, minimis. the taxes lost have to less 1% amounted than of reve by Wyoming, nues received but percentage even this fractional exceeds $500,000 per year. Wyoming approaches this such viewing case a drain year year, on its tax aptly base after paraphrases and it a famous state ment Senator Everett Dirkson: half “[A] million dollars here and a half there, pretty million money dollars soon real Reply involved.” Brief for Respectfully n. See Quoted: Dictionary Quo 3. A (S. Requested tations from the Congressional Research Service 155 Platt 1989) (“A here, there, ed. billion billion pretty you’re talking soon money”). about real *15 454 legislation.” many every, adopted similar
one, or State but (1989). Healy Institute, 336 324, Beer 491 U. S. v. Wyoming’sclaim, absence of the nature of Because litigation involving parties any pending or same other appropriate present for the exercise find case issues, we jurisdiction. Accordingly, accept of this Court’s Special Master the recommendation reject permitted bring and we Okla- action, to this should be Report. exceptions Special to the Master’s homa’s I I I agree Special conclu- with the Master’s ultimate We also sion that the Act is invalid under the Commerce Clause.
The Clause of United States Constitution Commerce Congress regu [t]o provides “[t]he shall have Power ... among I, the several . . Art. late . . . States . Commerce reading § long is while literal 8, that, 3. It established cl. grant power Congress, the Commerce Clause evinces a power directly discriminate also limits the States to Energy against Indi interstate commerce. See New Co. of (1988) Hughes (citing 273 v. Limbach, 269, ana 486 U. S. v. (1979); Sons, 441 P. Inc. Oklahoma, H. Hood & (1949); Mond, v. Mis v. Du 336 U. S. 534-535 Welton (1876)). ‘negative’ aspect souri, S. 275 “This U. prohibits protectionism is, Commerce Clause economic —that regulatory designed measures benefit in-state economic by burdening competitors.” New out-of-state En interests ergy supra, Imports, Co., 273-274; at see Bacchus Ltd. also (1984);H. P. Dias, Sons, v. 468 U. 270-273 Hood & clearly supra, at 532-533. When a state statute discrimi against commerce, down, will be nates interstate struck Energy supra, g., New see, Co., e. unless discrimination demonstrably justified by a valid factor unrelated eco Taylor, g., protectionism, see, nomic e. Maine v. U. S. 131 simple Indeed, when the state statute amounts “virtually invalidity” protectionism, per se rule of economic applied. Philadelphia Jersey, has New (1978).12 Special correctly Master found that the Act, practical against effect, face and in discriminates interstate Imports, supra, commerce. See Bacchus Dias, Ltd. v. expressly segment 270. Section 939 of the Act reserves a *16 of the Oklahoma coal market for Oklahoma-mined to coal, preference exclusion of coal mined in other States. Such a for coal from domestic sources cannot be characterized as anything protectionist discriminatory, other than and for the purports Act coal exclude mined in other States based solely origin. Energy supra, on its See New Co., at 274; Philadelphia Jersey, supra, stipu Newv. at 626-627. The Wyoming provided lated facts confirm that from 1981to 1986 virtually purchased by 100% of the coal Oklahoma utilities. following In 1987and 1988, the effective date of the Act, purchased ranging utilities Oklahoma coal in amounts from necessarily 3.4% to their needs, 7.4%of annual with a corre sponding purchases Wyoming reduction in coal. jurisdictional arguments, attempts
inAs by emphasizing discount this evidence that the Act sets aside only portion” a “small of the Oklahoma coal market, without placing producers an “overall burden” on out-of-state coal doing in business Oklahoma. The volume of commerce af only
fected measures the extent of the discrimination; is of no relevance to the determination whether a State has against discriminated interstate commerce. Bacchus Im 12There are circumstances in which scrutiny a less strict appropriate is under our Commerce Clause decisions. “When ... only statute has indirect effects on interstate regulates commerce and evenhandedly, we have examined whether the State’s legitimate interest is and whether the burden on clearly interstate commerce exceeds the local benefits.” Corp. Brown-Forman Distillers v. New York Liquor Authority, State 476 (1986); Church, Inc., U. S. Pike Bruce see also S.U. (1970). While recognized we have that there sepa is no “clear line” rating scrutiny close cases which Brown-Forman Distill apply, should ers, supra, at this is not a close case. Maryland v. Louisi supra, 268-269; Dias, at ports, Ltd. v. Managers, Investment Lewis v. BT 760; S., at ana, U. recently only have As we 27, 39-42 Inc., 447 reaffirmed: is discrimination that where . . indicate cases .
“Our advantage widespread patent, here, neither as it disadvantage widespread nor a interests to in-state Varying the competitors need be shown.... out-of-state protectionism against ac- strength economic of the bar out-of- in-state and cording number of to the size except purpose no would serve affected firms state complex already an new uncertainties creation Energy supra, 276-277. Co., New field.” prac its face and both on Act discriminates Because “ justify it both ‘to falls on Oklahoma effect, the burden tical flowing from statute the local benefits terms of in unavailability adequate nondiscriminatory alternatives *17 Hughes v. Okla preserve interests at stake/” the local Washington (quoting supra, v. State Hunt at 336 homa, 353). mini Advertising at “At a Apple Comm’n, S., 432 U. scrutiny the strictest invokes discrimination such facial mum legitimate purpose any purported and of absence local Hughes nondiscriminatory Oklahoma, v. alternatives.” Special agree recom supra, Master’s with at 337. We burden in has not met its that Oklahoma mended conclusions argues quite briefly respect. Court, In this Oklahoma this justi against coal is out-of-state the Act’sdiscrimination industry coal-mining sustaining the Oklahoma fied because single of coal deliv a source reliance on lessens the State’s justification, Special single as the This a rail line. ered over by reasoning in Bald the Court’s noted, foreclosed Master (1935), Seelig, Inc., 294 511 H. P. F. win v. A.G. supra, Mond, Du cases that Sons, Inc. v. Hood & “pre ignores. We have often examined brief State’s only goal,” sumably legitimate at- to find that the State to achieve it “the tempted by means of illegitimate isolating Philadelphia v. New the State from the national economy.” Jersey, supra, at 627.
The State embellishes this somewhat when argument sug gesting that, the utilities to 10% of their requiring supply needs for fuel coal, from Oklahoma which because of its sulfur higher content cannot be the source of primary supply, the State conserves thereby cleaner coal for Wyoming’s future use. We have no reason to doubt unre- Wyoming’s butted factual to this response Reserves of argument: low sulfur, sub-bituminous coal from the clean-burning, Powder River Basin are estimated to be in tons, excess of 110 billion thus coal for providing several hundred at Wyoming years current rates of extraction. Brief for 9, n. Reply Wyoming (citing Geological Survey Wyoming, Guidebook Coal of the Powder Geology River Public Information Basin, Cir (1980)). cular No. p. event, In this any contention, which is raised for the first time in Oklahoma’s brief on the merits, finds no in the records made in this support case. Hughes Oklahoma, See v. S., 337-338, U. and n. 20; Taylor, cf. Maine 477 U. S., at 148-149. more argues clause” seriously “saving
of the Federal Act, § Power 824(b)(1),13 U. S. C. which reserves to the States the of local retail electric regulation rates, makes permissible the Act’s discriminatory impact the movement of coal in interstate commerce. Ok- lahoma that it “has argues determined that effective and help- ful 1) ways lower ensuring local rates include utility reduc- ing on a over-dependence source of single supply, single
13 provisions “The subchapter apply of this shall to the transmission of energy electric in interstate energy commerce and to the sale of electric commerce, at wholesale in except interstate provided but as in paragraph (2) apply shall any not to energy deprive other sale of electric or a State or State commission authority of its lawful expor now exercised over the hydroelectric tation of energy which is transmitted across a State line.” 824(b)(1). § 16 U. S. C. 2) conserving coal transporter, low-sulfur needed
fuel if the Act 65. Even future.” Brief for Oklahoma for the authority, rate-regulating part accepted of the as State's scrutiny exempt accept from that it is cannot submission Congress manifest its must the Commerce Clause. under be read to unambiguous statute will intent a federal before permit approve violation of Commerce or to such a Taylor, justify. v. Maine as Oklahoma here seeks Clause Development, supra, Inc. Timber 139; South-Central (1984). already exam We have Wunnicke, 467 U. S. 824(b)(1) Hamp § England Power v. New Co. ined New (1982), nothing in the statute found shire, 455 U. S. history congressional “evinc[ing] legislative intent ‘to or by imposed power alter the limits of state otherwise (quoting States v. Id., Commerce Clause.’” at 341 United (1953)). Cal., 345 U. S. Public Utilities Comm’n of suggested opinion, Oklahoma, no hint in as There is that per- partial have been that a of total—ban would —instead quotas imposed purchasing utili- on missible, or in-state utility regulate “law- rates within the ties in an effort are 824(b)(1). § authority” Instead, our ful under States “Congress recognition did decision turned on no then ex- more than leave valid state laws whatever hydroelectric energy; by relating exportation isted to the 824(b)] plain simply pre-emption [§ from terms, saves Part II of the state author- under Federal Power Act such ity England Co., as was otherwise ‘lawful.’” New Power supra, uniformly subjected at 341. Our decisions have Com- implicating merce cases Act Clause Federal Power scrutiny g., England on the See, Co., e. New Power merits. supra; Cooperative Corp. Arkansas Electric v. Arkansas Comm’n, Pub. Serv. say no
We need more to conclude that has not unambiguous demonstrating its burden of met clear and Congress permit intent behalf the discrimination against occurring light interstate commerce here. In *19 foregoing, adopt Special we Master’s conclusion that the Act manifests fatal defects under the Commerce Clause.
IV Finally, question severability a of address raised in the exceptions by Wyoming Special Report. filed to the Master’s agency
The GRDA is an of Oklahoma, the State of and, as participant directing such, Oklahoma acts as market purchases recognized of coal. haveWe that the Commerce Clause does not restrict the State’s action aas free market participant. v. Reeves, Stake, Inc. 447 U. 436-437 (1980); Hughes Scrap Corp., v. Alexandria (1976). Special 806-810 Master recommends that the market-participant exception is available to Oklahoma, but only application may if the of the Act to the consid- GRDA separately, application ered or severed, from its to the three private severability utilities. theAs of determination will Hooper in this situation be one of state law, Bernalillo v. County (1985), Special Assessor, 472 U. S. Mas- judgment ter respect that we recommends enter with private Wyoming’s complaint three utilities but dismiss as it prejudice Wyo- right relates GRDA without to the ming “appropriate to reassert the claim in an forum.” Re- port Special Wyoming’sexception Master 32. We sustain Special to these recommendations of the ac- Master. This presented tion is between one two States under our jurisdiction; appropriate this Court is the forum to decide necessary complaining issues complete to afford the State Dorchy relief. Kansas, Cf. We proper deem it and advisable to address the issue sever- ability ourselves. Special
In the alternative, Master looked to Oklahoma law and found the Act severable as to the a conclu- GRDA, disagree. sion with which we It true that Oklahoma portions courts have held that valid .statute are sever- Legislature able “‘unless it is evident would not *20 provisions provisions invalid with the the valid have enacted provisions the rest of removed removed, with the invalid if Englebrecht Day, fully operative v. as a law.’” the act is (1949) Sterling (quoting 538, 2d 585, 591, 208 P. Okla. (1933)). Refining 2d It 25 P. Walker, v. Okla. Co. severability law, clause is also true that under Oklahoma legislature presumption that the would in a creates statute portions adopted the unconstitutional the statute with have Champlin 544; at see 2d, 208 P. Okla., omitted. 201 Refining Corporation Oklahoma, 286 U. S. Comm’n Co. (1932) severability (inquiring under Okla- into 234-235 law). severability contains a The Act in this case homa provision: any provisions if of this act are severable
“The provision part of the void, shall be held decision or impair any holding shall not affect or court so remaining provisions parts this Act of Mar. act.” or 74. 43, §3, Sess. Laws 26, 1986,Ch. 1986Okla. parts separate provisions in the invalid
But there are no or “ § providing applies [a]ll It entities elec- 939 of the Act. to power to and com- tric for sale the consumer Oklahoma” purchase Okla. Oklahoma-mined coal. mands them 10% 1988). Nothing §939 (Supp. remains Stat., Tit. Accordingly, provision the Act saved once that is stricken. stand or fall as a whole. must suggestion that the term “all enti-
We decline Oklahoma’s only uphold as it GRDA, ties” the Act to the be read to clearly province a state statute. not this Court’s to rewrite “state-owned utili- If “all entities” is to mean “the GRDA” or Legislature must be one to decide. ties,” perceives argument nature of the severabil- Indeed, this ity clause to be much different than that written Okla- Severability may easily Legislature. clauses be writ- homa provide application ten that if a statute to some classes permits unconstitutional, is found severance of those classes application acceptable to the classes.14 Moreover, stat- ute explicitly itself could have been written to address legislature GRDA.15 The here chose neither course. provides insight
The State no additional into the intent of legislature question. on this The Act would become a fundamentally piece legislation different were it construed apply only to the Leg- GRDA. We leave to the Oklahoma islature to decide whether wishes to burden this state- utility private owned when utilities will otherwise be free of the Act’s restrictions.
V deny summary judgment We Oklahoma’s motion for *21 grant Wyoming. that of In sum, we hold that the Act is portion unconstitutional under the Commerce Clause. No is any by entity judg- as severable to its A touched mandate. enjoining ment and decree to that effect enforcement and of the Act will be entered. Jurisdiction over the case is re- proceedings required tained in the event that further are to implement judgment. the
So ordered. Scalia, Justice with whom The Chief Justice and Justice Thomas join, dissenting. century
In the almost a and half since we first entered the entertaining “negative of business Commerce Clause” ac Cooley tions, see v. Board Wardens Port Philadel of phia Society ex Pilots, rel. Distressed How. for Relief of (1852), say I it think safe to federal courts have 14See, Chadha, g., e. INS (1983), where the sever- “ ability provided: Act, any particular provision ‘If clause of this or the invalid, application any person circumstance, thereof to or held re persons application provision ” mainder of the act of such to other deleted). or thereby’ (emphasis circumstances shall not be affected 15See, (Vernon 1969), g., e. Mo. Ann. Stat. § expressly which 34.080 re quires agencies all purchase state to coal if it is available at a Missouri competitive price. brought by by shortage plagued suits a of these been never parties, private elements of the the nontextual and that gone of will- for lack not unenforced have Commerce Clause companies Today, litigants. with ing however, coal when allegedly what- law for have, affected sales litigate, for fit, sees not to Court reason, chosen ever bring negative recognize standing a time, State’s first consequential loss of its action the basis Commerce Clause major step, wrong. think is and I revenue. That is of tax summary judgment that correct, however, if it Even were consequential revenue in the loss of tax suffered deny Wyoming’s unjustified. present I would case would be summary grant judgment Oklahoma’s. motion
I briefly suggestion s outset, let address the Court At the me objec- previous standing rejections our Oklahoma’s complaint granted Wyoming leave file tions—when want motion to dismiss for and when we denied Oklahoma’s impede considering that ob- us from —somehow begin jection today. Ante, with, at 446. the “law-of-the- To persua- suggests principles” case which the Court should be necessarily binding ibid,., actions, albeit sive not my knowledge applied jurisdictional have never to been *22 (or reraised) judgment. final To issues raised before the contrary, obligation it is a court’s to dismiss case whenever jurisdiction, proper it that it no becomes convinced has no may matter how late wisdom that arrive. See Fed. Rule (“Whenever 12(h)(3) appears Proc. it . that the court Civ. . . subject jurisdiction matter, court lacks the dis- shall action”) added). (emphasis miss the also See Jenkins v. McKeithen, U. this does course, Of not mean that a court need let the same itself troubled jurisdictional objection again, raised when it over over thoroughly has con- considered that issue once remains correctly. quite vinced that the But it resolved issue that give case,” different from “law of the which would effect simply already decision, even to an erroneous because it has been made. present case,
And in we have not considered the the stand- ing thoroughly disposed of issue once before. We Oklaho- preliminary standing objections summarily, ma’s without argument opinion. I oral and without considered us to be deciding standing not, all, that once and for that time, simply standing existed, but absence of was not so permitting practice clear the suit that our normal to be referring questions (including standing filed and of all question) special to a master should be short circuited. The parties way, apparently understood our action that since the (without objec- issue was raised “law-of-the-case” Wyoming) Special tion from before Master. And the certainly conclusively think we had Master did not de- point, argument cided the since he received on it and dis- very legal cussed it first of the “three issues that re- as the quire Report Special a recommendation to the Court.” Special precluded by Master If Master was not our 10. why prior to understand we ourselves action, is hard would be. Wyoming unfairness to in this. To be sure,
There is no might given standing question have full-dress consid- begin with, and, eration to if we concluded in Oklahoma’s spared parties lengthy proceedings favor, could have be- Special But fore the Master. the same could be said of the substantive issue whether the Act violated the Commerce proceed choice not to in that fashion was both Clause. Our ordinary practice my in accord with and in view sound. Al- litigants go through most all other must at least two other their It courts before case receives our attention. has be- original-jurisdiction require practice come our cases preliminary proceedings special master, before evaluate sharpen no cause for facts and the issues. has *23 complaint here, we and we should not distort did misguided jurisdictional holding of on basis some the our estoppel. feeling of “change
Finally, that some if were correct even the Court presented ought 446, to be before circumstance,” ante, at cursorily jurisdictional objection at the denied so that we the change stage preliminary in fact reraised, such a can stage, having litigation has a new reached exists. pleadings judgment proceeded for from a motion denied) (which judgment summary we to cross-motions (which resolving Special in favor Master recommended Wyoming). former, denies the a district court When consistency deny compunction the latter; to it need feel no obviously issue is same is true for us. The and the stage subject upon depending evaluation, to different plaintiff may litigation has A survive motion reached. by merely alleging injury in that a for lack of fact dismiss challenged string commencing act with the of occurrences injury; stage presume that him at that has caused specific “general allegations facts that are embrace those necessary support Lujan v. National claim,” Wildlife (1990). See also Whitmore v. Federation, S.U. (1990). plaintiff cannot, A Arkansas, U. S. 158-159 generalizations, of the same obtain however, on basis summary moving party judgment, where a must or avoid any genuine material fact,” “show that there no issue as is 56(c), nonmoving party Fed. and where Rule Civ. Proc. allegations” properly counter a cannot rest on “mere through supported “specific motion, must set facts” but forth 56(e). evidence, or other Rule Civ. Proc. See affidavits Fed. Lujan, supra, Gladstone, Realtors 884-885. also See Village Bellwood, and n. 31 adequacy presentations that Oklahoma It of these have not evaluated them now asks us to evaluate—and we before.
465 II litigant clearly It is axiomatic that "a first must demon `injury strate that he has suffered an in fact" in order Whitmore, supra, assert Article III to sue. at 155. assessing injury, presume "{w]e In a claim to that federal jurisdiction contrary appears courts lack unless the affirma tively record," Geary, 312, from the Renne v. 501 U. S. 316 (1991) (internal quotation omitted). marks See also Bender Williamsport Dist., 534, (1986); Area School 475 U. S. accordingly party is "the burden of the who seeks the jurisdiction clearly allege exercise of in his favor. . . facts demonstrating" injured. FW/PBS, that he has been Inc. v. Dallas, 215, (1990) (internal quotation 493 U. S. marks omitted). "substantially This burden is more difficult" injury "highly bear when the asserted indirect and results independent party from the action of some third not before simple court"-for reason that there are more Wright, 737, variables involved. Allen v. 468 U. S. 757-759 (1984). Ky. Rights See also Simon v. Eastern Welfare Or ganization, 26, 42, (1976); Seldin, 426 U. S. 44-45 Warth v. 490, (1975). upon 422 U. S. 504-505 It is incumbent plaintiff through "specific, to eliminate those variables con facts," showing party actually crete that the third acted as injury actually Id., he maintains and that occurred. at 508. mentioned, plaintiff's meeting
As I have success in this governing the-stage burden is to be assessed under the rules litigation Lujan, supra, has reached. See at 884-885. Gladstone, supra, 115, 31; Simon, supra, See also at and n. 26; Warth, supra, 527, (Brennan, J., at n. at and n. 6 dis senting). Wyoming's summary judgment motion for thus granted Wyoming cannot be unless has demonstrated that genuine injury, "there is no issue" as to its Fed. Rule Civ. 56(c), Co., Proc. see Adickes v. S. H. Kress & 398 U. S. (1970)-which "[i]f means reasonable minds could import evidence," differ as to the the motion must be Liberty Lobby, 250- Inc., denied, Anderson v. stage, prevail therefore, at this To be entitled to “specific, facts,” Wyoming concrete submitted must have light supra, most in the Warth, when “viewed which all inferences “foreclose” reasonable favorable” supra, injured Adickes, Act, not was *25 remotely my Wyoming that carried has view at 157. not grant to Special recommendation burden, Master’s summary rejected. judgment must be its motion for Wyoming’s injury thought apparently Special The Master undisputed unquestionable since the Act’s that, it is because bought Wyoming less have date, Oklahoma utilities effective Spe- Report percentage purchases. of of their coal coal as a argu- willing sake of for the 11. Iam to assume cial Master compels undisputed inference that that that fact ment Wyoming a result of the in Oklahoma as coal was sold less injury, Wyoming however, had show Act. To establish merely lost, sales be that the statute caused Oklahoma not prevented from oc- of coal “severances” but that curring. Wyoming of coal to Oklahoma not tax sales does particular of a Okla- The loss utilities; it taxes severances. treasury Wyoming’s all at unless not hurt homa sale would (1) subject not severed that sale was coal that was the of (2) sold else- elsewhere, if it was severed be to be sold or severance) (and would have occurred where, latter sale that if Oklahoma sale had been made. even the by o’erleaps assert- inconvenient obstacle this Court undisputed specific [is] ing an fact of tax revenues that “a loss helpful imagine where this Ante, at 448. I cannot here.” Special listed the undis- Master concession comes from. The Report Special among puted of it is not them. See facts, 2-10, 11. Master appears second of the that the also to believe
The Court connecting loss with tax loss sales above described means of significant “Wyoming has the fact that established mining capacity”; according excess fact, Court, this necessarily any means that “the loss of market cannot be up by made Ante, sales elsewhere.” at 446. That is capacity not so. Excess can mean the existence facilities capable producing quantities goods additional that can profit prices be sold for a at current market which case —in really “replaced” by gain the loss of sale one cannot capacity of another. But excess need not mean It that. can also mean the existence of facilities that lie fallow because, although they produce quantities goods, can additional they yield profit cannot do so a cost that will at current prices. capped unexploited market Innumerable or oil wells country exemplify phenomenon. in this If that is the capacity Wyoming industry sort of excess coal has, it capability nonetheless a limited has of sales at current mar- prices long capability ket which case as so has been —in fully achieved no tax revenue has been lost. *26 capacity by Wyoming’sexperts may
The excess to attested well have been of this sort, latter since it was said to have response high been created in to 1970’s“forecasts of demand growth.” Appendix Affidavit of Schwartz, Seth to Re sponse Higher generally to Motion to Dismiss A-2. demand higher prices, companies might means and the coal well have (for brought higher production new, cost facilities on line mines) example, deep-pit prices that are at current not competitive. capacity” compet Even if the entire “excess is (according Wyoming’s expert) itive, since much of it came opening from possibil mines,” “new ibid., another ity Wyoming industry responded is that to less-than- anticipated by closing in demand an efficient down manner — entirely leaving some of the mines rather than them all in operation capacity. at a fraction of Under these conditions, might pay particular it company particu well a not to make a lar require sale, additional if that additional sale would reopening incremental cost mine, of an additional with that entails.* engage Wyoming in cer- speculations us are invites by given pause
tainly plausible (though the fact must one be Wyo- Wyoming companies if themselves—who coal that ming right just but on the severances not the tax have lost litigate). profits Were this chosen to the entire not —have likely might it is more I conclude that on the record well trial summary Wyoming injured. “at the But not that was than weigh stage [our] judgment the evidence.” function is not supra, not been conclu- It has at least Anderson, at 249. Wyoming producers sively have would that coal established (presumably) from the to that diverted sold coal addition genuine A of material fact thus sales. issue lost Oklahoma Special exists, and the Master's recommendation summary judgment Wyoming’s grant must motion for rejected.
III fully established, in the manner Rule Even if had required provides, “injury I III, Article fact” bring have would still conclude that does not grant for sum- and would cross-motion suit, this Oklahoma’s requirements, mary judgment. “Beyond the constitutional judiciary prudential to a set of federal has also adhered Valley question standing.” principles bear on the Separa- Forge College v. Americans Christian United State, 464, 474 Inc., 454 U. tion Church Virginia, by' * Wyoming’s expert, analyst from averred coal market *27 up. Affi opinion” the lost sales could not made “[i]n [his] affidavit Schwartz, Response to Dismiss A-3. Appendix of Seth Motion to davit 56(e) not, point. did as Rule enough That is not to establish the Schwartz opinion. upon he his Just as requires, set forth the “facts” which- based requirements summary judgment not met when a court makes are behavior, see, g., Lujan e. party’s inferences about a third unsubstantiated Federation, (1990), they are v. National Wildlife 497 U. S. 884-885 expert plaintiff hires to do the same. not met when the an outside requirement plaintiff One of these is the “establish (his injury complains aggrievement, that the he or the him) upon adverse effect falls within the ‘zone of interests’ sought protected by [or statut[e] to be constitutional guarantee] legal whose violation forms the basis for his complaint.” Air Courier America v. Postal Conference of (1991) (internal quotation Workers, 498 U. 523-524 omitted). marks The “zone-of-interests” formulation first § appeared brought in cases under 10 of the Administrative § Procedure Act, 5 U. S. C. see Association Data
Processing Organizations, Camp, Service Inc. v. (1970), subsequently 150, 153 but we have made clear that similarly governs the same test claims under the Constitu general, g., Valley Forge, supra, tion see, e. at negative particular, under the Commerce Clause see Bos Exchange ton Stock Comm’n, v. State Tax 429 S. 318, U. (1977).
320-321, Indeed, n. 3 we have indicated that it is more strictly applied plaintiff proceeding when a is under a “con provision” “generous stitutional . . . instead of the review provisions Industry of the APA.” Clarke v. Securities Assn., 388, 400, n. 16 right
The zone-of-interests test “denies of review if the plaintiff’s marginally interests are ... related to or inconsist- purposes implicit [constitutional provi- ent with the in the sion].” starting point Id., at 394, 399. The usual for zone- analysis provision of-interests is the text of issue, see Air at S., Courier 498 U. Conference, 524-525; since, how- negative ever, Commerce Clause an inference rather point starting history text, than a here must be the purposes of the inference, id., see at 526-527. negative jurisprudence grew
Our Commerce Clause out implicitly the notion that the Constitution established a national free market, which, under in Justice Jackson’s “every every words, farmer and craftsman shall be encour- aged produce by certainty that he will have free access every every [and] may market in the Nation consumer *28 470 every producing competition area of from the free
look to exploitation.” Hood & H. P. protect him from Nation (1949). Virtually 525, U. 539 Mond, 336 S. Sons, Inc. Duv. begins analysis every thus in this area of our cases one very purpose of “the incantation that some form of with of free trade an area was create Clause the Commerce by Clause] [and its own among . . several States . interference free from an area of trade created force Tully, Corp. Westinghouse v. Electric the States.” (1984) omitted); (internal quotation marks S. 402-403 U. supra, Exchange, 328; at American also Boston Stock see Trucking Scheiner, v. 483 U. Assns., Inc. negative Clause Commerce we said that
Just last Term ‘right’ engage from trade free “confer[s] in interstate regulation,” benefit intended to for it “was state restrictive engaged Dennis in interstate commerce.” are those who ... deleted). (1991)(emphasis Higgins, 498 S. U. pass companies, the zone-of- course, would coal bought coal, or sold if it would interests test. So directly participated It in the coal market. or otherwise engage “asserting right [its] in inter . . to . then be would Ex discrimination],” Stock free of Boston commerce state added). Wyo (emphasis change, supra, But 320-321, n. entirely presents ming’s right different taxes an to collect only marginally category the national interest, related to jurisprudence in this our trade foundation of market/free antagonistic positively to in a sense area; indeed, perfectly objective, constitutional taxes, even since all state profit. by reducing Thus, ones, commerce burden interstate negative prior been at issue in our state taxes have when object they cases have been Clause Commerce standing; plaintiff’s challenge his basis for rather than the upon in tax collection looked the State’s interest and we have against purposes weighed of our Com as a value to be Wyoming’s jurisprudence. interest Thus, merce Clause meeting the shorter of zone-of-interests this case falls far *29 plaintiff postal test than did of that the in union Air Courier supra, at Conference, 528: Whereas the latter’s interest in securing employment postal although for workers, distinct goal providing postal from the statute’s the services to citizenry, goal good at least coincided with that a amount of (tax collection) time, the here the asserted interest and the (free trade) goal constitutional invoked to vindicate it are antithetical. seeming response argument,
In to a zone-of-interests the quotes, ante, Court at our statement in Hunt v. Wash ington Apple Advertising State Comm’n, (1977), [Washington Apple that “the interests of the State Advertising] may litiga Commission itself be” at in issue the “[i]n tion, because the event the North Carolina statute re Washington apples in sults the contraction of market for prevents any expansion might or market otherwise occur, it reduce could the amount the assessments due the Commission.” note Court fails to that this statement preceded by square holding Apple was the that the State Advertising standing had Commission as sue an associa apple growers behalf tion on of its members, the and dealers (who here): position companies were in the same as coal voluntary membership
“If the Commission were a or- ganization typical standing trade association—its —a bring representative action this as a of its constituents would be clear .... only question presented,
“The therefore, is whether, record, on this the Commission’s status as a state agency, voluntary membership rather than a traditional organization, precludes asserting it from claims Washington growers apple and dealers who form its constituency. We think Id., not.” at 342-344.
Only finding standing after speculate, associational did passage quotes, in the the Court that the commission itself adversely collections “may its revenue because be” affected hardly [be] reduce[d].” I think that Id., 345. “could disregarding grounds musings the obvious sort are of this present to the case— application test of the zone-of-interests purport to be particularly did not Hunt as Court applying were Hunt, moreover, test. The dicta purpose since-repudiated understanding applying of the Compare requirement. the last sentence (taking purpose passage quoted “to the Court sharpens pres which that concrete adverseness ‘assure quoting Carr, ibid., Baker entation of issues (as (1962)), Allen, S.,U. at 750-752 with U. *30 serting standing performs separation-of-powers func a that role). restricting the to their traditional tion, courts collecting severance taxes if the state interest course, Of of interests of the Commerce does fall within the zone every taxing The state interest. Clause, so must other injury-in-fact require- opposed to the test, as zone-of-interest type asserted and not its on the of interest ment, turns alleged speculativeness degree its or of attenuation from its injury-in-fact requirement, course, still of will source. The causality de can be estab- remain —but if and when facto every to the state revenue attributable lished, diminution of allegedly regulation of a sister unconstitutional commercial will the basis for a lawsuit. Suits based on State now be regular phenome- ought loss of sales tax revenue to become a that since it is no more difficult show an automatic non, particular tax was a than it to show sales lost on sale expansions that the tax lost here. Further severance was (or distinctions) just of irrational lurk around the litigable If a State has a interest in the taxes that corner: paid upon unconstitutionally would been an obstructed have saying company there is basis for that a sale, no reasonable litigable does not a interest in the commis- salesman have paid, wages or union in the sions that would have been would have been earned. abandoning
In test, zone-of-interests the Court aban giving expression, dons our of of chosen means in the field litigation, principle judicial constitutional to the “the remedy encompass every cannot can conceivable harm that alleged wrongdoing.” be traced to Associated General Con Carpenters, Cal., tractors Inc. v. of performs many test “zone-of-interests” the same role as judge-made circumscribing availability
other rules of damages litigation in tort and contract such as —doctrines foreseeability proximate g., Palsgraf and cause, see, e. Long (1928); R. Co., 339, 162 Island 248 N. Y. N. E. 99 direct injury, g., of e. ness Associated see, Contractors, General supra, by third-party at 540-541; the limitation on suits (Second) g., beneficiaries e. contracts, see, Restatement §302(1) (1981); contemporaneous Contracts owner ship governing rule shareholders’ actions, see, derivative g., e. Fed. Rule Civ. Proc. 23.1. When courts abolish such require, opinion today, nothing limitations and as our does causality, showing exposure more than a to liabil defacto ity scope litigation becomes immeasurable endless. today’s expect If sharp decision to, is adhered we can in against crease in state state Commerce Clause and if suits; rejection applied logically, of the zone-of-interests test is *31 expect sharp we litigation. can a in increase all constitutional
[*] [*] [*] points portions Of the three I have in discussed the three opinion, of this I must believe that the first is the crucial one: original reluctance, the Court’s in an action, to reconsider our initial standing. denial of a motion to dismiss lack of part I shall holding consider that to be an essential respectfully the case. I dissent.
Justice Thomas, with whom The Chief Justice join, dissenting. Justice Scalia
Even if challenge I believed that had (which, given by Oklahoma statute for the reasons Jus- not), I to exercise I do would decline Scalia, tice jurisdiction original here. Court’s provides “[i]n in which that all Cases ... The Constitution origi Party, supreme shall have a be a Court shall State §2, 2. Con Const., Ill, Art. cl. S. nal Jurisdiction.” U. gress, Supreme provided “[t]he shall Court turn, in has jurisdiction original all controversies and exclusive have 1251(a). § S. Given two or more States.” 28 U. C. between might expect assuming provisions, one existence these — “controversy” required to would be or we of “case” —that having original jurisdiction here, for a court exercise our generally jurisdiction more it. “We have no must exercise jurisdiction given, right which to decline the exercise given.” Virginia, usurp is not Cohens v. than to that which J.). (1821)(Marshall, As ob the Court C. Wheat. 450-451, have exercised discre serves, however, ante, declining literal fall within the to hear cases that tion g., original jurisdiction. v. See, e. United States of our terms curiam) (1973) (controversy (per Nevada, 412 S. U. States); Ohio the United and individual between States (1971) Corp., Wyandotte 493, 497-499 Chemicals U. States). (action against We the citizens of other State respect to controversies exercise this discretion even with original which fall within our States, between two or more jurisdiction.* g., Mexico, See, Texas v. New and exclusive e. explanations for has the Court’s declin * Justice Stevens stated that “inapplicable” original jurisdiction to exercise its nonexclusive ing are here, C. is exclusive where, jurisdiction under 28 U. S. as (1981) 1251(a). Virginia, v. West § 1027-1028 California complaint). Simi dissenting from of motion to file bill of (opinion denial “ ‘the statement larly, suggested commentators have that the Court’s 1251(a). jurisdiction requir[es] § . . grant under congressional of exclusive “an appropriate cases’” is obligatory jurisdiction only resort our Mishkin, Bator, Meltzer, Shapiro, D. Hart and P. P. & oxymoron.” D. 1988) (3d System 344 ed. Courts and the Federal Wechsler’s Federal *32 (1981) (internal Louisiana, 725, quota Maryland 451 U. S. 739 (quoting v. omitted)). Discretion, 60 Shapiro, marks See also Jurisdiction tion
475 (1983); 462 554, Texas, 164, U. S. 570 U. v. 457 S. California (1982) curiam); (per Maryland 168 v. 451 Louisiana, U. S. (1981); 725, 739 Mexico, Arizona New 794, 796- (1976) curiam). (per I believe that the Court’s decision jurisdiction accept misguided over this case is a exercise of that discretion. long philosophy original
“It has been this Court’s that ‘our jurisdiction sparingly.’” City should be invoked Illinois v. (1972)(quoting Milwaukee, 406 U. S. Utah v. United of States, (1969)). 394 U. The sound reasons this approach many g., have been set forth see, on e. occasions, Wyandotte Corp., supra, Mary- Ohio v. 498; Chemicals at supra, Louisiana, land v. at 761-763 J., dis- (Rehnquist, senting), repeat I and need not As them here. Chief Justice aptly century ago, original ju- Fuller observed almost a our grave risdiction “is of so delicate a character that it was contemplated not that it would save when be exercised necessity Texas, was absolute.” 1,15 Louisiana v. 176 U. S. (1900). determining In which cases merit the exercise of original jurisdiction, typically Court has focused two considerations: the nature the claims involved and the availability they of alternative forums where can be ad- g., City supra, See, dressed. e. Milwaukee, Illinois v. 93; Missouri, Massachusetts v. 18-19 my strongly against In exercising view, both cut factors original jurisdiction injured here. claims to be as by Wyo- follows: The Oklahoma statute decreases coal sales ming mining companies buyers, suppos- to Oklahoma which edly companies decreases the amount coal those extract in (1985) Y. (calling N. U. L. Rev. “unanswerable” criticism of discretionary approach Court’s cases within its exclusive jurisdiction).
As in text, noted precedents Court has held otherwise and those challenged have not been probably here. exercise of discretion is long approach inevitable as as Court’s is as relaxed as today. *33 tax reve Wyoming, supposedly the decreases in turn which they companies ex Wyoming from the when collects nues Plainly, dispute primary here is not be the tract the coal. Wyoming Oklahoma, but between and of tween the States mining companies of private Wyoming and the State companies’ sales to reduced the whose statute Oklahoma, ante, notes, true, It is as the Court utilities. Oklahoma sovereign capac passed in its the statute 451, that sovereign capacity. Wyoming ity in its collects taxes and that very certainly qua in as relevant is act States That States Mary sessing dignity” a claim. of See the “seriousness supra, J., dis Louisiana, at 764-766 land v. (Rehnqutst, senting). examine the extent also critical to But is actually sovereigns Arizona v. clashed. Cf. have which the (“In denying supra, of the State Mexico, at 797-798 New legal that file, we are not unmindful leave to Arizona upon Mexico] challenged [the New action incidence of utilities”). injury entirely my an derivative view, In alleged by Wyoming if it met minimal type here—even justify standing requirements the exercise not —would Additionally, course, discretionary jurisdiction. mining why affected reason has advanced no (hardly litigants) companies not or could not did bashful challenge more another, in statute the Oklahoma themselves courts and the state The lower federal convenient, forum. readily appropriate “in which forums available as courts are (em may litigated.” Id., at 797 tendered here be the issues original). phasis in theory implications tax- of the Court’s novel original juris- justifies injury alone exercise
collection troubling. my sweeping An view, both are, diction imposed by another State’s one State economic burden (That taxpayers frequently fisc. other will affect the State’s respect example, virtually always case, with will that reduce the actions taxes; if State A takes to income taxpayers collect less B, State B will of State income of the revenue.) today’s opinion, income-tax Under State any can show loss tax revenue —even a de minimis loss, (albeit see ante, at 452-453, and n. 11—that can be traced loosely) apparently proceed to the action of another State can directly challenge Perhaps to this Court to that action. *34 possibility Court is not concerned about that because of its managing having “discretion” in But, docket. original jurisdiction extended the to one claim State’s based on its tax-collector status, Court cannot, the exercise disputes of discretion, refuse to entertain future based on theory. the same That would be the exercise not of discre- caprice. tion, but of respectfully
I dissent.