Federal Energy Regulatory Commission v. Mississippi
Opinion of the Court
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, Pub. L. 95-617, 92 Stat. 3117 (PURPA or Act). We conclude that appellees’ challenge lacks merit and we reverse the judgment below.
I
On November 9, 1978, President Carter signed PURPA into law.
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, 92 Stat. 3120 and 3149, 16 U. S. C. § 2611 (1976 ed., Supp. IV), 15 U. S. C. § 3201 (1976 ed., Supp. IV).
Section 111(d) of the Act, 16 U. S. C. § 2621(d), requires each state regulatory authority and nonregulated utility to consider the use of six different approaches to structuring rates: (1) promulgation, for each class of electricity consumers, of rates that, “to the maximum extent practicable,” would “reflect the costs of . . . service to such class”; (2)
Section 113 of PURPA, 16 U. S. C. §2623, requires each state regulatory authority and nonregulated utility to consider the adoption of a second set of standards relating to the
Finally, § 114 of the Act, 16 U. S. C. §2624, directs each state authority and nonregulated utility to consider promulgation of “lifeline rates” — that is, lower rates for service that meets the essential needs of residential consumers — if such rates have not been adopted by November 1980.
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. 16 U. S. C. §§ 2621(b) and (c)(2), and §§ 2623(a) and (c); 15 U. S. C. §§ 3203(a) and (c). “Any person” may bring an action in state court to enforce the obligation to hold a hearing and
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. 16 U. S. C. § 2631(a). Under Title III, the Secretary alone has the right to intervene. 15 U. S. C. § 3205. Any person (including the Secretary) who intervenes or otherwise participates in the proceeding may obtain review in state court of any administrative determination concerning the Title I standards, 16 U. S. C. § 2633 (c)(1), and the Secretary has the right to participate as an amicus in any Title III judicial review proceeding initiated by another. 15 U. S. C. § 3207(b)(2). The right to intervene is enforceable against the state regulatory authority by an action in federal court. 16 U. S. C. § 2633(b); 15 U. S. C. § 3207(a)(2).
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.” 16 U. S. C. § 2626(a); 15 U. S. C. § 3209(a). The Secretary, in turn, is to submit a summary and analysis of these reports to Congress. 16 U. S. C. § 2626(b); 15 U. S. C. § 3209(b). Electricity utilities also are required to collect information concerning their service costs. 16 U. S. C. § 2643. This information is to be filed periodically with appellant Federal Energy Regulatory Commission (FERC) and with appropriate state regulatory agencies, and is to be made available to the public. Title III requires the Secretary, in consultation with FERC, state regulatory authorities, gas utilities, and gas consumers, to submit a report to Congress on gas utility rate design. 15 U. S. C. § 3206.
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, 92 Stat. 3144, 16 U. S. C. § 824a-3, seeks to encourage the development of cogen-eration and small power production facilities.
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 co-generation and small power production facilities. Section 210(f), 16 U. S. C. § 824a-3(f), requires each state regulatory authority and nonregulated utility to implement FERC’s rules. And § 210(h), 16 U. S. C. § 824a-3(h), authorizes FERC to enforce this requirement in federal court against any state authority or nonregulated utility; if FERC fails to act after request, any qualifying utility may bring suit.
To solve the second problem perceived by Congress, § 210(e), 16 U. S. C. § 824a-3(e), directs FERC to prescribe rules exempting the favored cogeneration and small power facilities from certain state and federal laws governing electricity utilities.
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 18 CFR pt. 292 (1980); 45 Fed. Reg. 12214-12237 (1980). These afford state regulatory authorities and nonregulated utilities latitude in determining the manner in which the regulations are to be implemented. Thus, a state commission may comply with the statutory requirements by issuing regulations, by resolving disputes on a case-by-case basis, or by taking any other action reasonably designed to give effect to FERC’s rules.
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.
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 la. 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.
FERC and the Secretary of Energy appealed directly to this Court pursuant to 28 U. S. C. § 1252. See Hodel v. Virginia Surface Mining & Recl. Assn., Inc., 452 U. S. 264, 274, n. 15(1981). We noted probable jurisdiction. 452 U. S. 936 (1981).
Ill
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):
*754 “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, appel-lees 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
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, 16 U. S. C. § 2601, that the regulated activities have an immediate effect on interstate commerce. Congress there determined that “the protection of the public health, safety, and welfare, the preservation of national security, and the proper exercise of congressional authority under the Constitution to regulate interstate commerce require,” among other things, a program for increased conservation of electric energy, increased efficiency in the use of facilities and resources by electricity utilities, and equitable retail rates for electricity consumers, as well as a program to improve the wholesale distribution of electric energy, and a program for the conservation of natural gas while ensuring that rates to gas consumers are equitable. 16 U. S. C. § 2601. The findings, thus, are clear and specific.
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).
Congress also determined that the development of co-generation 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).
Even if appellees were correct in suggesting that PURPA
<1
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,” 16 U. S. C. § 824a-3(f)(1) (emphasis added), is more troublesome. The statute’s substantive provisions require electricity utilities to purchase electricity from, and to sell it to, qualifying co-
Testa v. Katt, 330 U. S. 386 (1947), is instructive and controlling on this point. There, the Emergency Price Control Act, 56 Stat. 34, as amended, created a treble-damages remedy, and gave jurisdiction over claims under the Act to state as well as federal courts. The courts of Rhode Island refused to entertain such claims, although they heard analogous state causes of action. This Court upheld the federal program. It observed that state courts have a unique role in enforcing the body of federal law, and that the Rhode Island courts had “jurisdiction adequate and appropriate under established local law to adjudicate this action.” 330 U. S., at 394. Thus the state courts were directed to heed the constitutional command that “the policy of the federal Act is the prevailing policy in every state,” id., at 393, “‘and should be respected accordingly in the courts of the State.’” Id., at 392, quoting Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1, 57 (1912).
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.
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.
Whatever all this may forebode for the future, or for the scope of federal authority in the event of a crisis of national
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.
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-
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 ratemak-ing.
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 decision-makers. As we read them, Titles I and III simply establish requirements for continued state activity in an otherwise pre-emptible field.
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,
The judgment of the District Court is reversed.
It is so ordered.
The Senate vote was taken on October 9, 1978. The Mississippi Senators voted against the bill. See 124 Cong. Rec. 34780. The House vote was taken on October 14, 1978. The five-member Mississippi delegation voted three “ayes” and two “nays.” See id., at 38503.
In addition to PURPA, the package included the Energy Tax Act of 1978, Pub. L. 95-618, 92 Stat. 3174; the National Energy Conservation Policy Act, Pub. L. 95-619, 92 Stat. 3206; the Powerplant and Industrial Fuel Use Act of 1978, Pub. L. 95-620, 92 Stat. 3289; and the Natural Gas Policy Act of 1978, Pub. L. 95-621, 92 Stat. 3351.
For simplicity of citation, and to avoid repetition, unless otherwise noted herein, any reference to 15 or 16 U. S. C. relates to Supplement IV of the 1976 edition of the Code.
“Declining block rates” are a traditional and still common approach used by utilities in their charges for electricity. The highest unit rate is charged for basic electrical consumption, with a declining per-unit price for each block of additional consumption. See S. Rep. No. 95-442, pp. 26-27 (1977).
“Time-of-day rates” are designed to reduce “peak load,” the term used to describe the greatest demand for a utility’s electricity. Demand varies by hour and season, usually reaching a daily maximum in the afternoon and a seasonal maximum in midsummer or midwinter. A utility must have enough generating capacity to meet that demand; steps that reduce peak demand also reduce the required amount of generating capacity and the use of “peaking” generating equipment, which frequently is gas- or oil-fueled. Under time-of-day rates, utilities charge more for electricity consumed during peak load hours. See id., at 29.
“Seasonal rates” operate to reduce peak load by imposing higher rates during the seasons when demand is greatest.
“Interruptible rates” tend to reduce peak load by charging less for service which the utility can interrupt, or stop, during peak demand periods.
“Load management techniques” are methods used to reduce the demand for electricity at peak times. For example, a utility might employ remote-control devices that temporarily turn off applicances during periods when the demand is particularly great.
“Master-metering” is the use of one meter for several living units. Studies have shown that tenants of master-metered buildings use 35% more electricity, on the average, than tenants of buildings where each apartment has its own meter. See id., at 31.
An “automatic adjustment clause” provides that as a utility’s fuel costs rise it may increase its rates without public hearing or review by the state regulatory authority. A clause of this kind provides the utility with no incentive to reduce its costs or to shift away from oil- or gas-fueled generating facilities, and therefore tends to discourage the efficient use of energy resources.
A “cogeneration facility” is one that produces both electric energy and steam or some other form of useful energy, such as heat. 16 U. S. C. § 796(18)(A). A “small power production facility” is one that has a production capacity of no more than 80 megawatts and uses biomass, waste, or renewable resources (such as wind, water, or solar energy) to produce electric power. § 796(17)(A).
See 123 Cong. Rec. 25848 (1977) (remarks of Sen. Percy); id,., at 32403 (remarks of Sen. Durkin); id., at 32437 (remarks of Sen. Haskell); id., at 32419 (remarks of Sen. Hart); National Energy Act: Hearings on H. R. 6831 et al. before the Subcommittee on Energy and Power of the House Committee on Interstate and Foreign Commerce, 95th Cong., 1st Sess., 552-553 (1977).
See H. R. Conf. Rep. No. 95-1750, p. 98 (1978); H. R. Rep. No. 95-496, pt. 4, p. 157 (1977); 123 Cong. Rec. 32399 (1977) (remarks of Sen. Cranston); id., at 32660 (remarks of Sen. Percy).
Congress recognized that a State’s compliance with the requirements of PURPA would involve the expenditure of funds. Accordingly, it author
For each of the fiscal years 1979 and 1980, Congress authorized for appropriation up to $40 million to help state regulatory authorities defray the costs of complying with PURPA. Pub. L. 95-617, § 142(1), 92 Stat. 3134, 42 U. S. C. § 6808(1) (1976 ed., Supp. IV).
Mississippi Power & Light Company was permitted to intervene in the action as a plaintiff and is also an appellee here.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U. S. Const., Amdt. 10.
“The sovereign state of Mississippi is not a robot, or lackey which may be shuttled back and forth to suit the whim and caprice of the federal government.” App. to Juris. Statement 2a.
In the companion case decided the same day, this Court observed:
“Judicial review in this area is influenced above all by the fact that the Commerce Clause is a grant of plenary authority to Congress. . . . This power is ‘complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.’ Gibbons v. Ogden, 9 Wheat. 1, 196 (1824). Moreover, this Court has made clear that the commerce power extends not only to ‘the use of channels of interstate or foreign commerce’ and to ‘protection of the instrumentalities of interstate commerce ... or persons or things in commerce,’ but also to ‘activities affecting commerce.’ Perez v. United States, 402 U. S. 146, 150 (1971). As we explained in Fry v. United States, 421 U. S. 542, 547 (1975), ‘[ejven activity that is purely intrastate in character may be regulated by Congress, where the activity, combined with like conduct by others similarly situated, affects commerce among the States or with foreign nations.’” Hodel v. Virginia Surface Mining & Recl. Assn., Inc., 452 U. S. 264, 276-277 (1981).
For this proposition, appellees rely on Brown v. EPA, 521 F. 2d 827, 839 (CA9 1975), vacated and remanded, 431 U. S. 99 (1977), and District of Columbia v. Train, 172 U. S. App. D. C. 311, 332, 521 F. 2d 971, 992 (1975), vacated and remanded sub nom. EPA v. Brown, 431 U. S. 99 (1977).
See also 124 Cong. Rec. 34558 (1978) (remarks of Sen. Jackson); id., at 34560 (remarks of Sen. Bumpers); id., at 34776 (remarks of Sen. Robert C. Byrd); id., at 38350 (remarks of Rep. Ashley); id,., at 38370-38371 (remarks of Rep. Dingell); 123 Cong. Rec. 25894 (1977) (remarks of Rep. Ashley); id., at 25916-25917 (remarks of Rep. Ottinger); id., at 27063-27064 (remarks of Rep. Wolff).
See, e. g., id., at 32437-32438 (remarks of Sen. Brooke); id., at 32444 (remarks of Sen. Percy).
PURPA could be upheld even if some of its provisions were not directly related to the purpose of fostering interstate commerce: “A complex regulatory program . . . can survive a Commerce Clause challenge without a
This is not to say the Congress can regulate in an area that is only tangentially related to interstate commerce. See Maryland v. Wirtz, 392 U. S. 183, 196-197, n. 27 (1968). That obviously is not the case here.
In another context, the Court has noted that “the role of the modern federal hearing examiner or administrative law judge ... is ‘functionally
Justice O’Connor reviews the constitutional history at some length, ultimately deriving the proposition that the Framers intended to deny the
The Court did express doubt as to whether a state agency “may be ordered actually to promulgate regulations having effect as a matter of state law.” 443 U. S., at 695. As we have noted, however, PURPA does not require promulgation of particular regulations.
Justice O’Connor’s partial dissent finds each of these cases inappo-site. Yet the purported distinctions are little more than exercises in the art of ipse dixit. Thus she suggests that Testa v. Katt provides no support for the imposition of federal responsibilities on state legislatures, because “the requirement that [state courts] evenhandedly adjudicate state and federal claims falling within their jurisdiction does not infringe any sovereign authority to set an agenda.” Post, at 784-785. Yet the courts have
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.
In Dennison, the Court concluded that the state courts entertained federal actions solely as a discretionary “matter of comity, which the several sovereignties extended to one another for their mutual benefit. It was not regarded by either party as an obligation imposed by the Constitution.” 24 How., at 109. That analysis cannot survive Testa, which squarely held “that state courts do not bear the same relation to the United States that they do to foreign countries.” 330 U. S., at 389. And Testa, of course, placed the obligation of state officials to enforce federal law squarely in the Supremacy Clause.
It seems evident that Congress intended to defer to state prerogatives — and expertise — in declining to pre-empt the utilities field entirely. See, e. g., S. Rep. No. 95-442, pp. 9, 13-14 (1977); 124 Cong. Rec. 34558 (1978) (remarks of Sen. Jackson); id., at 34560 (remarks of Sen. Bumpers); id., at 34763 (remarks of Sen. Metzenbaum); id., at 34768 (remarks of Sen. Durkin); 123 Cong. Rec. 32430 (1977) (remarks of Sen. Johnston); id., at 32395 (remarks of Sen. Bartlett).
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.
Justice O’Connor’s partial dissent suggests that our analysis is an “absurdity,” post, at 781, and variously accuses us of “conscript[ing] state utility commissions into the national bureaucratic army,” of transforming state legislative bodies into “field offices of the national bureaucracy,” of approving the “dismemberment of state government,” of making state agencies “bureaucratic puppets of the Federal Government,” and — most colorfully — of permitting “Congress to kidnap state utility commissions.” Post, at 775, 777, 782, 783, 790. While these rhetorical devices make for absorbing reading, they unfortunately are substituted for useful constitutional analysis. For while Justice O’Connor articulates a view of state sovereignty that is almost mystical, she entirely fails to address our central point.
The partial dissent does not quarrel with the propositions that Congress may pre-empt the States in the regulation of private conduct, that Con
We believe that this seemingly precise parallel between state and federal procedures suffices to overcome Justice Powell’s objections to PURPA, at least where, as here, the statute is subjected to a facial attack. See also n. 34, infra.
Justice O’Connor’s partial dissent accuses us of undervaluing National League of Cities, and maintains that our analysis permits Congress to “dictate the agendas and meeting places of state legislatures.” Post, at 782. These apocalyptic observations, while striking, are overstated and patently inaccurate. We hold only that Congress may impose conditions
As we note above, PURPA imposes certain reporting requirements on state commissions. But because these attach only if the State chooses to continue its regulatory efforts in the field, we find them supportable for the reasons addressed in connection with the other provisions of Titles I and III. Appellees nevertheless suggest that PURPA’s requirements must fall because compliance will impose financial burdens on the States. We are unconvinced: in a Tenth Amendment challenge to congressional activity, “the determinative factor . . . [is] the nature of the federal action, not the ultimate economic impact on the States.” Hodel v. Virginia Surface Mining & Recl. Assn., Inc., 452 U. S., at 292, n. 33. In any event, Congress has taken steps to reduce or eliminate the economic burden of compliance. See n. 14, supra.
Mississippi law provides for reasonable notice in the fixing of rates and conditions of service of utilities. Miss. Code Ann. § 77-3-33(2) (1973). It also requires the Public Service Commission to keep a “full and complete record” of all proceedings, § 77-3-63, and to “make and file its findings and order, and its opinion, if any,” § 77-3-59. Indeed, the state statute re
Concurring in Part
concurring in part and dissenting in part.
The Public Utility Regulatory Policies Act of 1978, Pub. L. 95-617, 92 Stat. 3117 et seq. (PURPA), imposes unprecedented burdens on the States. As Justice O’Connor ably demonstrates, it intrusively requires them to make a place on their administrative agenda for consideration and potential adoption of federally proposed “standards.” The statute does not simply ask States to consider quasi-legislative matters that Congress believes they would do well to adopt. It also prescribes administrative and judicial procedures that States must follow in deciding whether to adopt the proposed standards. At least to this extent, I think the PURPA violates the Tenth Amendment.
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.
HH HH
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.
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.
16 U. S. C. § 2631(a) (1976 ed., Supp. IV). “[A]ny electric utility or electric consumer” may enforce its intervention and participation rights in federal court. § 2633(b)(2). See also § 2633(b)(1).
The PURPA grants similar intervention and participation rights to the Secretary with respect to state natural gas utility rate proceedings. See 15 U. S. C. §3205 (1976 ed., Supp. IV). These rights also are specified to be enforceable in federal court. See § 3207(a)(2).
16 U. S. C. §2633(c)(1) (1976 ed., Supp. IV). A similar enforcement right is granted in the case of natural gas rate proceedings. 15 U. S. C. § 3207(b)(1) (1976 ed., Supp. IV).
Under the PURPA’s Title II, § 210, States must implement federal rules relating to the interconnection of electrical utilities with qualifying cogeneration and small power production facilities. 16 U. S. C. § 824a-3
16 U. S. C. § 2633(c)(1) (1976 ed., Supp. IV). The PURPA also makes available a right of judicial review in the same manner with respect to the interconnection of electrical utilities with cogeneration and small power production facilities. § 824a-3(g)(1). No similar right is available in the case of natural gas rate proceedings. See 15 U. S. C. § 3207(b)(2) (1976 ed., Supp. IV).
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 § 3203(c); 16 U. S. C. §2621(b)(1) (1976 ed., Supp. IV).
The Court cites Testa v. Katt, 330 U. S. 386 (1947), in support of the proposition that under some conditions the Federal Government may call
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.
L. Tribe, American Constitutional Law 302 (1978).
Concurring in Part
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 Public Utility Regulatory Policies Act of 1978, Pub. L. 95-617, 92 Stat. 3117 (PURPA). I disagree, however, with much of the Court’s Tenth Amendment analysis. Titles I and III of PURPA conscript state utility commissions into the national bureaucratic army. This result is contrary to the principles of National League of Cities v. Usery, 426 U. S. 833 (1976), antithetical to the values of federalism, and inconsistent with our constitutional history. Accordingly, I dissent from Parts IV-B and IV-C of the Court’s opinion.
Titles I and III of PURPA require state regulatory agencies to decide whether to adopt a dozen federal standards governing gas and electric utilities.
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.
Adhering to these principles, the Court has recognized that the Tenth Amendment restrains congressional action that would impair “a state’s ability to function as a state.” Transportation Union v. Long Island R. Co., 455 U. S. 678, 686 (1982); National League of Cities v. Usery, 426 U. S., at 842-852; Fry v. United States, 421 U. S. 542, 547, n. 7 (1975). See also Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 423-424 (1978) (Burger, C. J., concurring in judgment). For example, in National League of Cities v. Usery, supra, the Court held that Congress could not prescribe the minimum wages and maximum hours of state employees engaged in “traditional governmental functions,” id., at 852, because the power to set those wages and hours is an “attribute of state sovereignty” that is “ ‘essential to [a] separate and independent existence.’ ” Id., at 845 (quoting Lane County v. Oregon, supra, at 76).
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 ‘attributed 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.
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.
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,
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 Surface Mining Control and Reclamation Act of 1977, 91 Stat. 447, 30 U. S. C. § 1201 et seq. (1976 ed., Supp. IV), the federal statute upheld in
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.
I do not believe, moreover, that Titles I and III of PURPA are less intrusive than pre-emption.
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.
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*790 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,.
HH
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 Articles of Confederation, 18th-century writers agreed, was that the new National Government lacked the power to compel individual action. Instead, the central government had to rely upon the cooperation of state legislatures to achieve national goals. Thus, Alexander Hamilton explained that “[t]he great and radical vice in the construction of the existing Confederation is in the principle of legislation for states or governments, in their corporate or collective capacities and as contradistinguished from the individuals of whom they consist.” The Federalist No. 15, p. 93 (J. Cooke ed. 1961) (emphasis omitted). He pointed out, for example, that the National Government had “an indefinite discretion to make requisitions for men and money,” but “no authority to raise either by regulations extending to the individual citizens of America.” Ibid.
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 represents] the States not the people of the States: their acts operate on the States not on the individuals. The case will be*792 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 Articles of Confederation, such a system is simply ineffective. At the other, it requires a degree of military force incompatible with stable government
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,
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.
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.
Ill
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*797 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.
1 concur in the Court’s decision to uphold Title II, § 210, of PURPA against appellees’ facial attack. As the Court explains, part of that section permits the Federal Energy Regulatory Commission (FERC) to exempt cogeneration and small power production facilities from otherwise applicable state and federal laws. 16 U. S. C. § 824a-3(e) (1976 ed., Supp. IV). This exemption authority does not violate the Tenth Amendment, for it merely pre-empts state control of private conduct, rather than regulating
Section 210’s requirement that the States “implement” rules promulgated by the Secretary of Energy, 16 U. S. C. § 824a-3(f) (1976 ed., Supp. IV), is more disturbing. Appellants, however, have interpreted this statutory obligation to include “an undertaking to resolve disputes between qualifying facilities and electric utilities arising under [§ 210], or any other action reasonably designed to implement [that section].” 18 CFR § 292.401(a) (1981). It appears, therefore, that state regulatory authorities may satisfy § 210’s implementation requirement simply by adjudicating private disputes arising under that section. As the Court points out, ante, at 760-761, the Mississippi Public Service Commission has jurisdiction over similar state disputes, and it is settled that a State may not exercise its judicial power in a manner that discriminates between analogous federal and state causes of action. See Testa v. Katt, 330 U. S. 386 (1947). Under these circumstances, but without foreclosing the possibility that particular applications of § 210’s implementation provision might uncover hidden constitutional defects, I would not sustain appellees’ facial attack on the provision.
Section 210 also authorizes FERC, electric utilities, cogenerators, and small power producers to “enforce” the above implementation provision against state utility commissions. 16 U. S. C. § 824a-3(h)(2) (1976 ed., Supp. IV). As applied, it is conceivable that this enforcement provision would raise troubling federalism issues. Once again, however, I decline to accept appellees’ facial challenge to the provision, preferring to consider the constitutionality of this provision in the setting of a concrete controversy.
The statute imposes the same requirements upon nonregulated utilities. In this respect, it regulates purely private conduct and does not violate the Tenth Amendment. Throughout this dissent, I consider only the constitutionality of Titles I and III as applied to state regulatory authorities. I would allow the District Court, on remand, to decide whether the constitutionally defective aspects of Titles I and III are severable from the unobjectionable portions.
See ante, at 748-749. The Court overlooks several of PURPA’s procedural mandates. For example, with respect to six of the standards, the state agency must publish a written determination, including findings, even if it decides to adopt the federal standard. 16 U. S. C. § 2621(b) (1976 ed., Supp. IV). In addition, PURPA guarantees certain rights to discover information, § 2631(b); requires the State to provide transcripts, at the cost of reproduction, to parties to ratemaking proceedings or other “regulatory proceeding[s] relating to [electric utility] rates or rate design,” § 2632(c); and, under some circumstances, mandates compensation for reasonable attorney’s fees, expert witness fees, and other costs to consumers who contribute substantially to the adoption of a Title I standard, §§ 2632 (a), (b). These requirements, as well as the ones described by the Court, may impose special burdens on state administrative agencies. I do not weigh the constitutionality of these individual procedural requirements, however, because I would invalidate the entire regimen that Titles I and III impose on state regulatory authorities.
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.
As the Court recognizes, ante, at 748, PURPA permits “[a]ny person” to bring an action in state court to enforce the agency’s obligation to consider the federal standards. 15 U. S. C. § 3207(b)(1) (1976 ed., Supp. IV); 16 U. S. C. § 2633(c)(1) (1976 ed., Supp. IV). The Secretary of Energy, moreover, may intervene in any ongoing ratemaking proceeding to require consideration of PURPA’s standards. 15 U. S. C. § 3205(a) (1976 ed., Supp. IV); 16 U. S. C. §§ 2631(a), 2622(a) (1976 ed., Supp. IV). Title I grants affected utilities and consumers the same right of intervention. 16 U. S. C. § 2631(a) (1976 ed., Supp. IV). Because of these rights of intervention and enforcement, state agencies lack even the power to schedule their consideration of PURPA’s standards.
For example, the proposed standards governing advertising provide that “[n]o electric [or gas] utility may recover from any person other than
“(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.” 16 U. S. C. § 2625(h) (1976 ed., Supp. IV).
See also 15 U. S. C. § 3204(b) (1976 ed., Supp. IV) (containing similar provisions for gas utilities).
The Court has not explored fully the extent of “traditional” state functions. Utility regulation, however, should fall within any definition of that term. See generally W. Jones, Cases and Materials on Regulated Industries 25-44 (2d ed. 1976) (tracing history of state regulation of utilities).
PURPA thus offends each of the criteria named in Hodel. I do not believe, moreover, that this is a case in which “the nature of the federal interest advanced may be such that it justifies state submission.” See n. 4, swpra. Whatever the ultimate content of that standard, it must refer not only to the weight of the asserted federal interest, but also to the necessity of vindicating that interest in a manner that intrudes upon state sovereignty. In this case, the Government argues that PURPA furthers vital national interests in energy conservation. Although the congressional goal is a noble one, appellants have not shown that Congress needed to commandeer state utility commissions to achieve its aim. Consistent with the Tenth Amendment, Congress could have assigned PURPA’s tasks to national officials. Alternatively, it could have requested state commissions to comply with Titles I and III and directed the Secretary to shoulder the burden of any State choosing not to comply.
The Court attempts to distinguish National League of Cities, suggesting that it involved “the State’s ability ‘to structure employer-employee relationships,’. . . while providing ‘those governmental services which [its] citizens require.’ ” Ante, at 770, n. 32 (quoting National League of Cities, 426 U. S., at 851, 847). This case, the Court declares, “hold[s] only that Congress may impose conditions on the State’s regulation of private conduct in a pre-emptible area.” Ante, at 769-770, n. 32. The Court, however, does not explain why our National League of Cities opinion did not consider compliance with the Fair Labor Standards Act in fields such as “licensing of occupations and businesses, . . . preservation of environmental quality,. . . [and] protection of the public against fraud and sharp practice,” App. in National League of Cities v. Usery, O. T. 1975, No. 74-878, p. 16 (reprinting complaint), a “conditio[n] on the State’s regulation of private conduct in a pre-emptible area.” In that case, Congress had required the States to pay their employees specified amounts if they wished to continue regulating a variety of pre-emptible fields. Here, it has required the States to burden their officials with evaluation of a dozen legislative proposals if they wish to continue regulating private utilities. To me, the parallel is obvious, not “overstated.” Ante, at 769, n. 32.
I am nevertheless confident that, as the Court itself stresses, ibid,., today’s decision is not intended to overrule National League of Cities. Instead, the novelty of PURPA’s scheme, see ante, at 758-759, merely seems to have obscured the relevance of National League of Cities to this case.
But cf. Coyle v. Oklahoma, 221 U. S. 559, 565 (1911) (“The power to locate its own seat of government and to determine when and how it shall be changed from one place to another ... are essentially and peculiarly state powers. That one of the . . . States could now be shorn of such powers by an act of Congress would not be for a moment entertained”).
Title 30 U. S. C. § 1254(g) (1976 ed., Supp. IV) only pre-empts state laws “insofar as they interfere with the achievement of the purposes and the requirements of this chapter and the Federal program.” Similarly, § 1255(a) provides that no state law or regulation “shall be superseded by any provision of this chapter or any regulation issued pursuant thereto, except insofar as such State law or regulation is inconsistent with the provisions of this chapter.” Section 1255(b) explains that neither state laws that are more stringent than the federal standards nor state laws governing operations “for which no provision is contained in this chapter” are “inconsistent” with the congressional Act.
As one scholar has written: “A federal system implies a partnership, all members of which are effective players on the team and all of whom retain the capacity for independent action. It does not imply a system of collaboration in which one of the collaborators is annihilated by the other.” L. White, The States and the Nation 3 (1953).
The other two decisions, Fry v. United States, 421 U. S. 542 (1975), and Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658 (1979), are readily distinguishable. Fry upheld a temporary wage freeze as applied to state and local governmental employees. As we subsequently observed, this emergency restraint “displaced no state choices as to how governmental operations should be structured, nor did it force the States to remake such choices themselves. Instead, it merely required that the wage scales and employment relationships which the States themselves had chosen be maintained during [a] period of. . . emergency.” National League of Cities v. Usery, supra, at 853. In Washington State Fishing Vessel Assn., state agencies were defendants to a suit charging violations of federal treaties, and we upheld the lower court’s power to enforce its judgment by ordering the defendants to comply with federal law. The power of a court to enjoin adjudicated violations of federal law, however, is far different from the power of Congress to demand state legislative action in the absence of any showing that the State has violated existing federal duties. See Hart, The Relations Between State and Federal Law, 54 Colum. L. Rev. 489, 515-516 (1954); Salmon, The Federalist Principle: The Interaction of the Commerce Clause and the Tenth Amendment in the Clean Air Act, 2 Colum. J. Envtl. L. 290, 334-337 (1976).
The Court suggests, ante, at 762-763, n. 27, that the requirement that state courts adjudicate federal claims may, as a practical matter, undermine the capacity of those courts to decide state controversies. Whatever the force of that observation, it does not demonstrate Testa’s relevance to this case. State legislative bodies possess at least one attribute of sovereignty, the power to set an agenda, that trial courts lack. This difference alone persuades me not to embrace the Court’s expansion of Testa.
The Court’s suggestion is somewhat disingenuous because Congress concluded that federal pre-emption of the matters governed by Titles I and III would be inappropriate. The administration’s original proposal, as well as the version of PURPA approved by the House, would have preempted state law by establishing minimum federal ratemaking standards. See generally H. R. Conf. Rep. No. 95-1750, pp. 63-65 (1978); S. Conf. Rep. No. 95-1292, pp. 63-65 (1978). The Senate Committee on Energy and Natural Resources, however, rejected this approach because
“the committee felt that setting minimum federal standards for utility rates, or mandating the use of certain costing methods for ratesetting, would be an unnecessary intrusion into an area which has traditionally been regulated by the States. It was apparent to the committee that many State utility commissions are currently involved in innovative ratemaking and are working toward the goal of conservation of energy through rate reform. At present, the State regulatory agencies rather than the Federal Government, possess the expertise to conduct the detailed costing and demand studies required to implement rate structure revision. Moreover, the committee recognized that rate structures must re-*786 fleet the individual needs and local peculiarities of each utilities’ service area .... Finally the committee felt that the potential uncertainty and delays accompanying Federal regulation threatened to have an adverse impact on the financial health of the utility industry which outweighed the projected savings in capital expenditures claimed by supporters of the administration’s proposal.” S. Rep. No. 95-442, p. 9 (1977).
See also 123 Cong. Rec. 32392-32393 (1977) (remarks of Sen. Johnston); id., at 32394 (remarks of Sen. Domenici). The Senate version of PURPA, accordingly, eschewed the pre-emption route. See H. R. Conf. Rep. No. 95-1750, supra, at 65-66; S. Conf. Rep. No. 95-1292, supra, at 65-66. While the Conferees produced a compromise bill, they too stopped short of pre-emption. Today’s decision, therefore, permits Congress to set state legislative agendas in a field that Congress might have occupied but expressly found unsuited to pre-emption.
Justice Harlan once commented that times of “international unrest and domestic uncertainty” are “bound to produce temptations and pressures to depart from or temporize with traditional constitutional precepts or even to short-cut the processes of change which the Constitution establishes.” Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A. B. A. J. 943 (1963). Justice Harlan then cautioned that it “[i]s . . . the special responsibility of lawyers, whether on or off the bench, to see to it that such things do not happen.” Ibid.
In 1975, then Attorney General Edward H. Levi responded to a similar argument that the “greater” power of pre-emption includes the “lesser” power of demanding affirmative action from state governments. Attorney General Levi remarked that “it is an insidious point to say that there is more federalism by compelling a State instrumentality to work for the Fed
In rare instances, Congress so occupies a field that any state regulation is inconsistent with national goals. The Court, however, is reluctant to infer such expansive pre-emption “in the absence of persuasive reasons.” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 142 (1963).
See generally Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 Yale L. J. 1196, 1239-1247 (1977); Comment, Redefining the National
Daniel Elazar, testifying before the Advisory Commission on Intergovernmental Relations in March 1980, commented upon this problem of garbled political responsibility. He suggested that national officials tend to force state governments to administer unpopular programs, thus transferring political liability for those programs to the States. Advisory Commission on Intergovernmental Relations, The Federal Role in the Federal System: The Dynamics of Growth, Hearings on the Federal Role 32 (Oct. 1980). As an example, he cited the President’s attempt in 1979 to force state Governors to establish and enforce unpopular gas rationing mechanisms. Id., at 85 (formal statement of Professor Elazar).
See, e. g., Chandler v. Florida, 449 U. S. 560, 579 (1981); Reeves, Inc. v. Stake, 447 U. S. 429, 441 (1980); Whalen v. Roe, 429 U. S. 589, 597, and n. 20 (1977); New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting); Hart, supra n. 13, at 540, 542; A. Macmahon, The Problems of Federalism: A Survey, in Federalism: Mature and Emergent 3, 10-11 (A. Macmahon ed., 1955); N. Rockefeller, The Future of Federalism 8-9 (1962); Stewart, supra n. 19, at 1210; White, supra n. 12, at 46-47.
Wyoming’s policy followed a practice it had adopted as a Territory. Compare Act of Jan. 21, 1891, ch. 100, § 4, 1890-1891 Wyo. Sess. Laws 394, with Act of Mar. 14, 1890, ch. 80, § 7, 1890 Wyo. Terr. Sess. Laws 158. See generally C. Beard & M. Beard, The Rise of American Civilization 563 (rev. ed. 1937).
The Nineteenth Amendment, ratified in 1920, prohibits abridgment of the right to vote “on account of sex.”
See Act of Jan. 28, 1932, ch. 20, 1931-1932 Wis. Laws 57; Act of June 1, 1933, ch. 186, 1933 Wis. Laws 448; Act of June 2, 1933, ch. 194, 1933 Wis. Laws 491; W. Leuchtenburg, Franklin D. Roosevelt and the New Deal, 1932-1940, p. 130 (1963); Rockefeller, supra n. 20, at 16.
See Act of June 4,1912, ch. 706, 1912 Mass. Acts 780; R. Morris, Encyclopedia of American History 768 (bicentennial ed. 1976).
See C. Morris & C. Morris, Jr., Morris on Torts 244-245 (2d ed. 1980); Friendly, Federalism: A Foreword, 86 Yale L. J. 1019, 1034 (1977).
Florida, for example, has enacted particularly strict legislation against oil spills. Fla. Stat. §§ 376.011-376.21 (1974 and Supp. 1982). This Court upheld that legislation in Askew v. American Waterways Operators, Inc., 411 U. S. 325 (1973).
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”).
See also I. Silone, The School for Dictators 119 (W. Weaver trans. 1963) (“A regime of freedom should receive its lifeblood from the self-government of local institutions. When democracy, driven by some of its baser tendencies, suppresses such autonomies, it is only devouring itself. If in the factory the master’s word is law, if bureaucracy takes over the trade union, if the central government’s representative runs the city and the province, . . . then you can no longer speak of democracy”).
See also Stewart, supra n. 19, at 1241-1244 (discussing “political safeguards of federalism”); Rockefeller, supra n. 20, at 10.
Henry M. Hart, Jr., agreed that the Framers were well aware “of the delicacy, and the difficulties of enforcement, of affirmative mandates from a federal government to the governments of the member states.” Hart, supra n. 13, at 515. Until the second half of this century, Congress apparently heeded this wisdom. “Federal law,” Hart observed in 1954, “often says to the states, ‘Don’t do any of these things,’ leaving outside the scope of its prohibition a wide range of alternative courses of action. But it is illuminating to observe how rarely it says, ‘Do this thing,’ leaving no choice but to go ahead and do it.” Ibid.
Governor Randolph of Virginia, for example, opposed a similar proposal for national coercion on the grounds that it was “impracticable, expensive, [and] cruel to individuals.” Instead, he advocated “resort... to a national Legislation over individuals.” 1 Farrand 256 (emphasis deleted). Mason eloquently argued that “[t]he most jarring elements of nature; fire & water themselves are not more incompatible that [sic] such a mixture of civil liberty and military execution.” Id., at 339.
Thomas Jefferson disapproved of the congressional veto as soon as he heard of it. Writing to Madison from Paris, he declared: “The negative proposed to be given [the national legislators] on all the acts of the several Legislatures is now for the first time suggested to my mind. Prima facie I do not like it.” C. Warren, The Making of the Constitution 168 (1937). Notably, Jefferson suggested that “an appeal from the State Judicatures to a Federal Court, in all cases where the Act of Confederation controuled the question, [would] be as effectual a remedy.” Id., at 168-169.
Experience under the Articles of Confederation taught the Framers that multiple state legislatures, unchecked by any central power, “threat[en] danger not to the harmony only, but to the tranquillity of the Union.” Id., at 166 (quoting Madison). My analysis of the Framers’ intent does not detract from the proper role of federal power in a federalist system, but merely requires the exercise of that power in a manner that does not destroy state independence.
This Court quickly recognized that Congress’ strength derives from its own enumerated powers, not from the ability to direct state legislatures. In McCulloch v. Maryland, 4 Wheat. 316 (1819), the historic decision affirming Congress’ power to establish a national bank, Chief Justice Marshall declared: “No trace is to be found in the constitution of an intention to create a dependence of the government of the Union on those of the states, for the execution of the great powers assigned to it. Its means are adequate to its ends; and on those means alone was it expected to rely for the
After the Convention, several thinkers suggested that the National Government might rely upon state officers to perform some of its tasks. Madison, for example, thought that Congress might rely upon state officials to collect national revenue. The Federalist No. 45, pp. 312-313 (J. Cooke ed. 1961). None of these suggestions, however, went so far as to propose congressional control of state legislative power. The suggestions, moreover, seemed to assume that the States would consent to national use of their officials. See also W. Anderson, The Nation and the States, Rivals or Partners? 86-87 (1957) (noting that First Congress rejected proposals to rely upon state officials to enforce federal law and suggesting that this decision to leave “the states free to work out, and to concentrate their attention and resources upon, their own functions” has become part of our constitutional understanding).
Reference
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