The Public Utility Regulatory Policies Act of 1978 (PURPA) was
enacted as part of a legislative package designed to combat the
nationwide energy crisis. To further this effort, Titles I and III
of PURPA direct state utility regulatory commissions and
nonregulated utilities to "consider" the adoption and
implementation of specific "rate design" and regulatory standards,
and require state commissions to follow certain notice and comment
procedures when acting on proposed federal standards. Section 210
of PURPA's Title II seeks to encourage the development of
cogeneration and small power facilities, and directs the Federal
Energy Regulatory Commission (FERC), in consultation with state
regulatory authorities, to promulgate rules to carry out this goal.
Section 210 then requires the state authorities, after notice and
hearing, to implement such rules, and authorizes the FERC to exempt
cogeneration and small power facilities from certain state and
federal regulations. The State of Mississippi and the Mississippi
Public Service Commission (appellees) brought an action in Federal
District Court against the FERC and the Secretary of Energy
(appellants), seeking a declaratory judgment that Titles I and III
and § 210 are unconstitutional because they exceed congressional
power under the Commerce Clause and constitute an invasion of state
sovereignty in violation of the Tenth Amendment. The District Court
so held and pronounced the challenged provisions void.
Held:
1. The challenged provisions are within Congress' power under
the Commerce Clause. Pp.
456 U. S.
753-758.
(a) To assert that PURPA is facially unconstitutional because it
does not regulate "commerce," or because it does not have "a
substantial effect" on such activity, disregards the specific
congressional finding in § 2 of PURPA that the regulated activities
do have an immediate effect on interstate commerce. Pp.
456 U. S.
754-755.
(b) The legislative history amply supports the congressional
conclusion that limited federal regulation of retail sales of
electricity and natural gas, and of the relationships between
cogenerators and electric utilities, was essential to protect
interstate commerce and the Nation's economy. Pp.
456 U. S.
756-758.
Page 456 U. S. 743
2. The challenged provisions do not trench on state sovereignty
in violation of the Tenth Amendment. Pp.
456 U. S.
758-771.
(a) Insofar as § 210 authorizes the FERC to exempt qualified
power facilities from state laws and regulations, it does nothing
more than preempt conflicting state enactments in the traditional
way. Because of the substantial interstate effect of such activity,
Congress may preempt the States completely in the regulation of
retail sales by electric and gas utilities and of transactions
between such utilities and cogenerators. With respect to § 210's
requirement that state authorities implement FERC's rules, the
statute and its implementing regulations simply require state
commissions to settle disputes arising under the statute, the very
type of adjudicatory activity customarily engaged in by the
Mississippi Public Service Commission.
Testa v. Katt,
330 U. S. 386. Pp.
456 U. S.
759-761.
(b) The "mandatory consideration" provisions of Titles I and III
do not involve the compelled exercise of Mississippi's sovereign
powers or set a mandatory agenda to be considered in all events by
state legislative or administrative decisionmakers, but simply
establish requirements for continued state activity in an otherwise
preemptible field.
Cf. Hodel v. Virginia Surface Mining &
Reclamation Assn., Inc., 452 U. S. 264. Pp.
456 U. S.
761-770.
(c) Similarly, the procedural requirements of Titles I and III
do not compel the exercise of a State's sovereign power or purport
to set standards to be followed in all areas of the state
commission's endeavors. If Congress may require a state
administrative body to consider proposed federal regulations as a
condition to its continued involvement in a preemptible field, it
may require the use of certain procedural minima during that body's
deliberations on the subject. Pp.
456 U. S.
770-771.
Reversed.
BLACKMUN, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, and STEVENS, JJ., joined. POWELL, J.,
filed an opinion concurring in part and dissenting in part,
post, p.
456 U. S. 771.
O'CONNOR, J., filed an opinion concurring in the judgment in part
and dissenting in part, in which BURGER, C.J., and REHNQUIST, J.,
joined,
post, p.
456 U. S.
775.
Page 456 U. S. 745
JUSTICE BLACKMUN delivered the opinion of the Court.
In this case, appellees successfully challenged the
constitutionality of Titles I and III, and of § 210 of Title II, of
the Public Utility Regulatory Policies Act of 1978, 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.
[
Footnote 1] The Act was part
of a package of legislation, [
Footnote 2] approved the same day, designed to combat the
nationwide energy crisis.
At the time, it was said that the generation of electricity
consumed more than 25% of all energy resources used in the United
States. S.Rep. No. 95-442, p. 7 (1977). Approximately one-third of
the electricity in this country was generated through use of oil
and natural gas, and electricity generation was one of the fastest
growing segments of the Nation's economy. S.Rep. No. 95-361, p. 32
(1977). In part because of their reliance on oil and gas,
electricity utilities were plagued with increasing costs and
decreasing efficiency in the use of their generating capacities;
each of these
Page 456 U. S. 746
factors had an adverse effect on rates to consumers and on the
economy as a whole. S.Rep. No. 95-442 at 9. Congress accordingly
determined that conservation by electricity utilities of oil and
natural gas was essential to the success of any effort to lessen
the country's dependence on foreign oil, to avoid a repetition of
the shortage of natural gas that had been experienced in 1977, and
to control consumer costs.
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). [
Footnote
3] To achieve these goals, Titles I and III direct state
utility regulatory commissions and nonregulated utilities to
"consider" the adoption and implementation of specific "rate
design" and regulatory standards.
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)
Page 456 U. S. 747
elimination of declining block rates; [
Footnote 4] (3) adoption of time-of-day rates;
[
Footnote 5] (4) promulgation
of seasonal rates; [
Footnote 6]
(5) adoption of interruptible rates; [
Footnote 7] and (6) use of load management techniques.
[
Footnote 8] The Act directed
each state authority and nonregulated utility to consider these
factors not later than two years after PURPA's enactment, that is,
by November 8, 1980, and provided that the authority or utility, by
November 8, 1981, was to have made a decision whether to adopt the
standards. § 2622(b). The statute does not provide penalties for
failure to meet these deadlines; the state authority or
nonregulated utility is merely directed to consider the standards
at the first rate proceeding initiated by the authority after
November 9, 1980. § 2622(c).
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
Page 456 U. S. 748
terms and conditions of electricity service: (1) prohibition of
master metering in new buildings; [
Footnote 9] (2) restrictions on the use of automatic
adjustment clauses; [
Footnote
10] (3) disclosure to consumers of information regarding rate
schedules; (4) promulgation of procedural requirements relating to
termination of service; and (5) prohibition of the recovery of
advertising costs from consumers. Similarly, § 303, 15 U.S.C. §
3203, requires consideration of the last two standards --
procedures for termination of service and the nonrecovery of
advertising costs -- for natural gas utilities. A decision as to
the standards contained in §§ 113 and 303 was to have been made by
November, 1980, although, again, no penalty was provided by the
statute for failure to meet the deadline.
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 S.C. §§ 3203(a) and (c). "Any person" may bring
an action in state court to enforce the obligation to hold a
hearing and
Page 456 U. S. 749
make determinations on the PURPA standards. 16 U.S.C. §
2633(c)(1); 15 U.S.C. § 3207(b)(1).
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
Page 456 U. S. 750
adopt or implement the specified rate design or regulatory
standards. Thus, 16 U.S.C. §§ 2621(a) and 2623(a) and 15 U.S.C. §
3203(a) all provide:
"Nothing in this subsection prohibits any State regulatory
authority or nonregulated . . . utility from making any
determination that it is not appropriate to implement [or adopt]
any such standard, pursuant to its authority under otherwise
applicable State law."
Similarly, 16 U.S.C. § 2627(b) and 15 U.S.C. § 3208 make it
clear that any state regulatory authority or nonregulated utility
may adopt regulations or rates that are "different from any
standard established by this [subchapter or] chapter."
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 cogeneration and
small power production facilities. [
Footnote 11] Congress believed that increased use of
these sources of energy would reduce the demand for traditional
fossil fuels. But it also felt that two problems impeded the
development of nontraditional generating facilities: (1)
traditional electricity utilities were reluctant to purchase power
from, and to sell power to, the nontraditional facilities,
[
Footnote 12] and (2) the
regulation of these alternative energy sources by state and federal
utility
Page 456 U. S. 751
authorities imposed financial burdens upon the nontraditional
facilities, and thus discouraged their development. [
Footnote 13]
In order to overcome the first of these perceived problems, §
210(a) directs FERC, in consultation with state regulatory
authorities, to promulgate "such rules as it determines necessary
to encourage cogeneration and small power production," including
rules requiring utilities to offer to sell electricity to, and
purchase electricity from, qualifying cogeneration and small power
production facilities. Section 210(f), 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. [
Footnote 14]
Page 456 U. S. 752
II
In April, 1979, the State of Mississippi and the Mississippi
Public Service Commission, appellees here, filed this action in the
United States District Court for the Southern District of
Mississippi against FERC and the Secretary of Energy, seeking a
declaratory judgment that PURPA's Titles I and III and § 210 are
unconstitutional. App. 3. [
Footnote 15] Appellees maintained that PURPA was beyond
the scope of congressional power under the Commerce Clause and that
it constituted an invasion of state sovereignty in violation of the
Tenth Amendment. [
Footnote
16]
Following cross-motions for summary judgment, the District
Court, in an unreported opinion, held that, in enacting PURPA,
Congress had exceeded its powers under the Commerce Clause. App. to
Juris. Statement 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 actually
Page 456 U. S. 753
unknown at the writing of the Constitution."
App. to Juris. Statement 4a. Indeed, in the court's view, the
legislation
"does not even attempt to regulate commerce among the several
states, but it is a clear usurpation of power and authority which
the United States simply does not have under the Commerce Clause of
the Constitution."
Id. at 7a.
Relying on
National League of Cities v. Usery,
426 U. S. 833
(1976), the court also concluded that PURPA trenches on state
sovereignty. [
Footnote 17]
It therefore pronounced the statutory provisions void because "they
constitute a direct intrusion on integral and traditional functions
of the State of Mississippi." App. to Juris. Statement 8a-9a. For
reasons it did not explain, the court also relied on the guarantee
of a republican form of government, U.S.Const., Art. IV, § 4, and
on the Supremacy Clause, Art. VI, cl. 2. App. to Juris. Statement
2a, n. 1, and 9a.
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,
452 U. S. 274,
n. 15 (1981). We noted probable jurisdiction. 452 U.S. 936
(1981).
III
The Commerce Clause
We readily conclude that the District Court's analysis and the
appellees' arguments are without merit so far as they concern the
Commerce Clause. To say that nothing in the Commerce Clause
justifies federal regulation of even the intrastate operations of
public utilities misapprehends the proper role of the courts in
assessing the validity of federal legislation promulgated under one
of Congress' plenary powers. The applicable standard was reiterated
just last Term in
Hodel v. Indiana, 452 U.
S. 314 (1981):
Page 456 U. S. 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,
428 U. S.
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
452 U. S.
323-324. [
Footnote
18]
Despite these expansive observations by this Court, appellees
assert that PURPA is facially unconstitutional because it does not
regulate "commerce"; instead, it is said, the Act directs the
nonconsenting State to regulate in accordance with federal
procedures. This, appellees continue, is beyond Congress'
power:
"In exercising the authority conferred by this clause of the
Constitution, Congress is powerless to regulate anything which is
not commerce, as it is powerless to do anything about commerce
which is not regulation."
Carter
Page 456 U. S. 755
v. Carter Coal Co., 298 U.S. at
298 U. S. 297.
The "governance of commerce" by the State is to be distinguished
from commerce itself, for regulation of the former is said to be
outside the plenary power of Congress. [
Footnote 19]
It is further argued that the proper test is not whether the
regulated activity merely "affects" interstate commerce but,
instead, whether it has "a substantial effect" on such commerce,
citing JUSTICE REHNQUIST's opinion concurring in the judgment in
the
Hodel cases, 452 U.S. at
452 U. S.
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 findings
Page 456 U. S. 756
have a rational basis.
Hodel v. Virginia Surface Mining
& Recl. Assn., Inc., 452 U.S. at
452 U. S. 277;
Hodel v. Indiana, 452 U.S. at
452 U. S.
323-324.
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). [
Footnote
20] Congress was aware that domestic oil production had lagged
behind demand, and that the Nation had become increasingly
dependent on foreign oil.
Id. at 3. The House Committee
observed:
"Reliance upon imported oil to meet the bulk of U.S. oil demands
could seriously jeopardize the stability of the Nation's economy
and could undermine the independence of the United States."
Ibid. See H.R.Rep. No. 95-543, vol. I, at 5-6.
Indeed, the Nation had recently experienced severe shortages in its
supplies of natural gas.
Id. at 7. The House and Senate
Committees both noted that the electricity industry consumed more
than 25% of the total energy resources used in this country, while
supplying only 12% of the user demand for energy. S.Rep. No. 95442,
at 7; H.R.Rep. No. 9496, pt. 4, at 125. In recent years, the
electricity utility industry had been beset by numerous problems,
id. at 129, which resulted in higher bills for the
consuming public, a result exacerbated by the rate structures
employed by most utilities. S.Rep. No. 95-442, at 26. Congress
naturally concluded that the energy problem
Page 456 U. S. 757
was nationwide in scope, [
Footnote 21] and that these developments demonstrated the
need to establish federal standards regarding retail sales of
electricity, as well as federal attempts to encourage conservation
and more efficient use of scarce energy resources.
See id.
at 24-32; H.R.Rep. No. 95-496, pt. 4, at 131-133, 136-138,
170-171.
Congress also determined that the development of cogeneration
and small power production facilities would conserve energy. The
evidence before Congress showed the potential contribution of these
sources of energy: it was estimated that, if proper incentives were
provided, industrial cogeneration alone could account for 7-10% of
the Nation's electrical generating capacity by 1987. S.Rep. No.
95-442, at 21, 23.
We agree with appellants that it is difficult to conceive of a
more basic element of interstate commerce than electric energy, a
product used in virtually every home and every commercial or
manufacturing facility. No State relies solely on its own resources
in this respect.
See FPC v. Florida Power & Light Co.,
supra. Indeed, the utilities involved in this very case,
Mississippi Power & Light Company and Mississippi Power
Company, sell their retail customers power that is generated in
part beyond Mississippi's borders, and offer reciprocal services to
utilities in other States. App. 93-94. The intrastate activities of
these utilities, although regulated by the Mississippi Public
Service Commission, bring them within the reach of Congress' power
over interstate commerce.
See FPC v. Florida Power & Light
Co., 404 U.S. at
404 U. S. 458;
New England Power Co. v. New Hampshire, 455 U.
S. 331 (1982). [
Footnote 22]
Even if appellees were correct in suggesting that PURPA
Page 456 U. S. 758
will not significantly improve the Nation's energy situation,
the congressional findings compel the conclusion that "
the
means chosen by [Congress are] reasonably adapted to the end
permitted by the Constitution.'" Hodel v. Virginia Surface
Mining & Recl. Assn., Inc., 452 U.S. at 452 U. S. 276,
quoting Heart of Atlanta Motel, Inc. v. United States,
379 U. S. 241,
379 U. S. 262
(1964). It is not for us to say whether the means chosen by
Congress represent the wisest choice. It is sufficient that
Congress was not irrational in concluding that limited federal
regulation of retail sales of electricity and natural gas, and of
relationships between cogenerators and electric utilities, was
essential to protect interstate commerce. That is enough to place
the challenged portions of PURPA within Congress' power under the
Commerce Clause. [Footnote
23] Because PURPA's provisions concern private nonregulated
utilities as well as state commissions, the statute necessarily is
valid at least insofar as it regulates private parties. See
Hodel v. Virginia Surface Mining & Recl. Assn., Inc., 452
U.S. at 452 U. S.
286.
IV
The Tenth Amendment
Unlike the Commerce Clause question, the Tenth Amendment issue
presented here is somewhat novel. This case obviously is related to
National League of Cities v. Usery, 426 U.
S. 833 (1976), insofar as both concern principles of
state sovereignty. But there is a significant difference as well.
National League of Cities, like
Fry v. United
States, 421 U. S. 542
(1975), presented a problem the Court often confronts:
Page 456 U. S. 759
the extent to which state sovereignty shields the States from
generally applicable federal regulations. In PURPA, in contrast,
the Federal Government attempts to use state regulatory machinery
to advance federal goals. To an extent, this presents an issue of
first impression.
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 preempt
conflicting state enactments in the traditional way. Clearly,
Congress can preempt 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,
325 U. S. 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
452 U. S.
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
cogenerator
Page 456 U. S. 760
and small power production facilities. § 824a-3(a). Yet FERC has
declared that state commissions may implement this by, among other
things, "an undertaking to resolve disputes between qualifying
facilities and electric utilities arising under [PURPA]." 18 CFR §
292.401(a) (1980). In essence, then, the statute and the
implementing regulations simply require the Mississippi authorities
to adjudicate disputes arising under the statute. Dispute
resolution of this kind is the very type of activity customarily
engaged in by the Mississippi Public Service Commission.
See,
e.g., Miss.Code Ann. §§ 77-1-31, 77-3-5, 77-3-13(3), 77-3-21,
77-3-405 (1973).
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
330 U. S. 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
330 U. S. 393,
"
and should be respected accordingly in the courts of the
State.'" Id. at 330 U. S. 392,
quoting Mondou v. New York, N.H. & H.R. Co.,
223 U. S. 1,
223 U. S. 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. [
Footnote 24] Any other
Page 456 U. S. 761
conclusion would allow the States to disregard both the
preeminent position held by federal law throughout the Nation,
cf. 14 U. S. Hunter's
Lessee, 1 Wheat. 304,
14 U. S. 340-341 (1816), and the congressional
determination that the federal rights granted by PURPA can
appropriately be enforced through state adjudicatory machinery.
Such an approach,
Testa emphasized, "flies in the face of
the fact that the States of the Union constitute a nation," and
"disregards the purpose and effect of Article VI of the
Constitution." 330 U.S. at
330 U. S. 389.
B. Mandatory Consideration of Standards. We acknowledge that
"the authority to make . . . fundamental . . . decisions" is
perhaps the quintessential attribute of sovereignty.
See
National League of Cities v. Usery, 426 U.S. at
426 U. S. 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,
433 U. S. 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,
65 U. S. 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. [
Footnote 25] While
this Court never
Page 456 U. S. 762
has sanctioned explicitly a federal command to the States to
promulgate and enforce laws and regulations,
cf. EPA v.
Brown, 431 U. S. 99
(1977), there are instances where the Court has upheld federal
statutory structures that, in effect, directed state decisionmakers
to take or to refrain from taking certain actions. in
Fry v.
United States, 421 U. S. 542
(1975), for example, state executives were held restricted, with
respect to state employees, to the wage and salary limitations
established by the Economic Stabilization Act of 1970.
Washington v. Washington State Commercial Passenger Fishing
Vessel Assn., 443 U. S. 658
(1979), acknowledged a federal court's power to enforce a treaty by
compelling a state agency to "prepare" certain rules "even if state
law withholds from [it] the power to do so."
Id. at
443 U. S. 695.
[
Footnote 26] And certainly
Testa v. Katt, supra, by declaring that "the policy of the
federal Act is the prevailing policy in every state," 330 U.S. at
330 U. S. 393,
reveals that the Federal Government has some power to enlist a
branch of state government -- there, the judiciary -- to further
federal ends. [
Footnote 27]
In doing so,
Testa clearly
Page 456 U. S. 763
cut back on both the quoted language and the analysis of the
Dennison case of the preceding century. [
Footnote 28]
Whatever all this may forebode for the future, or for the scope
of federal authority in the event of a crisis of national
Page 456 U. S. 764
proportions, it plainly is not necessary for the Court in this
case to make a definitive choice between competing views of federal
power to compel state regulatory activity. Titles I and III of
PURPA require only
consideration of federal standards. And
if a State has no utilities commission, or simply stops regulating
in the field, it need not even entertain the federal proposals. As
we have noted, the commerce power permits Congress to preempt the
States entirely in the regulation of private utilities. In a sense,
then, this case is only one step beyond
Hodel v. Virginia
Surface Mining & Recl. Assn., supra. There, the Federal
Government could have preempted all surface mining regulations;
instead, it allowed the States to enter the field if they
promulgated regulations consistent with federal standards. In the
Court's view, this raised no Tenth Amendment problem:
"We fail to see why the Surface Mining Act should become
constitutionally suspect simply because Congress chose to allow the
States a regulatory role."
452 U.S. at
452 U. S.
290.
"[T]here can be no suggestion that the Act commandeers the
legislative
Page 456 U. S. 765
processes of the States by directly compelling them to enact and
enforce a regulatory program."
Id. at
452 U. S.
288.
Similarly, here Congress could have preempted 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.
[
Footnote 29] While the
condition here is affirmative in nature -- that is, it directs the
States to entertain proposals -- nothing in this Court's cases
suggests that the nature of the condition makes it a
constitutionally improper one. There is nothing in PURPA "directly
compelling" the States to enact a legislative program. In short,
because the two challenged Titles simply condition continued state
involvement in a preemptible area on the consideration of federal
proposals, they do not threaten the States' "separate and
independent existence,"
Lane County v.
Oregon, 7 Wall. 71,
74 U. S. 76
(1869);
Coyle v. Oklahoma, 221 U.
S. 559,
221 U. S. 580
(1911), and do not impair the ability of the States "to function
effectively
Page 456 U. S. 766
in a federal system."
Fry v. United States, 421 U.S. at
421 U. S. 547,
n. 7;
National League of Cities v. Usery, 426 U.S. at
426 U. S. 852.
To the contrary, they offer the States a vehicle for remaining
active in an area of overriding concern.
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
330 U. S. 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,
312 U. S. 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 452 U. S.
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
14 U. S.
340-341. This requirement follows from the nature of
governmental
Page 456 U. S. 767
regulation of private activity. "[I]ndividual businesses
necessarily [are] subject to the dual sovereignty of the government
of the Nation and of the State in which they reside,"
National
League of Cities v. Usery, 426 U.S. at
426 U. S. 845;
when regulations promulgated by the sovereigns conflict, federal
law necessarily controls. This is true though Congress exercises
its authority "in a manner that displaces the States' exercise of
their police powers,"
Hodel v. Virginia Surface Mining &
Recl. Assn., Inc., 452 U.S. at
452 U. S. 291,
or in such a way as to "curtail or prohibit the States'
prerogatives to make legislative choices respecting subjects the
States may consider important,"
id. at
452 U. S. 290
-- or, to put it still more plainly, in a manner that is
"extraordinarily intrusive."
Id. at
452 U. S. 305
(POWELL, J., concurring). Thus it may be unlikely that the States
will or easily can abandon regulation of public utilities to avoid
PURPA's requirements. But this does not change the constitutional
analysis: as in
Hodel v. Virginia Surface Mining & Recl.
Assn.,
"[t]he most that can be said is that the . . . Act establishes a
program of cooperative federalism that allows the States, within
limits established by federal minimum standards, to enact and
administer their own regulatory programs, structured to meet their
own particular needs."
Id. at
452 U. S. 289.
[
Footnote 30]
Page 456 U. S. 768
To be sure, PURPA gives virtually any affected person the right
to compel consideration of the statutory standards through judicial
action. We fail to see, however, that this places any particularly
onerous burden on the State. Mississippi, by statute, already
grants
"
[a]ny interested person . . . the right to petition
the [Public Service] [C]ommission for issuance, amendment or repeal
of a rule or regulation,"
Miss.Code Ann. § 77-3-45 (1973) (emphasis added), and provides
that "
any party aggrieved by any final finding, order or
judgment of the commission shall have the right, regardless of the
amount involved, of appeal in chancery court." Miss.Code Ann. §
77-3-67(1) (Supp.1981) (emphasis added). Indeed, "[a]ny person
whose rights may be directly affected by said appeal may appear and
become a party. . . ."
Ibid. And
Page 456 U. S. 769
"[a]ppeals in accordance with law may be had to the supreme
court of the State of Mississippi from any final judgment of the
chancery court." Miss.Code Ann. § 77-3-71 (1973).
It is hardly clear on the statute's face, then, that PURPA's
standing and appeal provisions grant any rights beyond those
presently accorded by Mississippi law, and appellees point to no
specific provision of the Act expanding on the State's existing,
liberal approach to public participation in ratemaking. [
Footnote 31] In this light, we again
find the principle of
Testa v. Katt, supra, controlling:
the State is asked only to make its administrative tribunals
available for the vindication of federal, as well as state-created,
rights. PURPA, of course, establishes as federal policy the
requirement that state commissions consider various ratemaking
standards, and it gives individuals a right to enforce that policy;
once it is established that the requirement is constitutionally
supportable,
"the obligation of states to enforce these federal laws is not
lessened by reason of the form in which they are cast or the remedy
which they provide."
Testa v. Katt, 330 U.S. at
330 U. S. 391.
See Second Employers' Liability Cases, 223 U. S.
1,
223 U. S. 57
(1912).
In short, Titles I and III do not involve the compelled exercise
of Mississippi's sovereign powers. And, equally important, they do
not set a mandatory agenda to be considered in all events by state
legislative or administrative decisionmakers. As we read them,
Titles I and III simply establish requirements for continued state
activity in an otherwise preemptible field. [
Footnote 32] Whatever the constitutional
problems associated
Page 456 U. S. 770
with more intrusive federal programs, the "mandatory
consideration" provisions of Titles I ad III must be validated
under the principle of
Hodel v. Virginia Surface Mining &
Recl. Assn. [
Footnote
33]
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, [
Footnote 34] and therefore may be upheld as an exercise
of Congress'
Page 456 U. S. 771
Fourteenth Amendment powers. We need not go that far, however,
for we uphold the procedural requirements under the same analysis
employed above in connection with the "consideration" provisions.
If Congress can require a state administrative body to consider
proposed regulations as a condition to its continued involvement in
a preemptible field -- and we hold today that it can -- there is
nothing unconstitutional about Congress' requiring certain
procedural minima as that body goes about undertaking its tasks.
The procedural requirements obviously do not compel the exercise of
the State's sovereign powers, and do not purport to set standards
to be followed in all areas of the state commission's
endeavors.
The judgment of the District Court is reversed.
It is so ordered.
[
Footnote 1]
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.
[
Footnote 2]
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.
[
Footnote 3]
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.
[
Footnote 4]
"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).
[
Footnote 5]
"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.
[
Footnote 6]
"Seasonal rates" operate to reduce peak load by imposing higher
rates during the seasons when demand is greatest.
[
Footnote 7]
"Interruptible rates" tend to reduce peak load by charging less
for service which the utility can interrupt, or stop, during peak
demand periods.
[
Footnote 8]
"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 appliances
during periods when the demand is particularly great.
[
Footnote 9]
"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.
[
Footnote 10]
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.
[
Footnote 11]
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).
[
Footnote 12]
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).
[
Footnote 13]
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).
[
Footnote 14]
Congress recognized that a State's compliance with the
requirements of PURPA would involve the expenditure of funds.
Accordingly, it authorized the Secretary of Energy to make grants
to state regulatory authorities to assist them in carrying out the
provisions of Titles I and III, including the reporting
requirements, and the provision of § 210.
See 42 U.S.C. §
6807 (1976 ed., Supp. IV).
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).
[
Footnote 15]
Mississippi Power & Light Company was permitted to intervene
in the action as a plaintiff, and is also an appellee here.
[
Footnote 16]
"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.
[
Footnote 17]
"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.
[
Footnote 18]
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,
22 U. S.
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,
402 U. S.
150 (1971). As we explained in
Fry v. United
States, 421 U. S. 542,
421 U. S.
547 (1975),"
"[e]ven 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,
452 U. S.
276-277 (1981).
[
Footnote 19]
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).
[
Footnote 20]
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).
[
Footnote 21]
See, e.g., id. at 32437-32438 (remarks of Sen. Brooke);
id. at 32444 (remarks of Sen. Percy).
[
Footnote 22]
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 showing that every single facet of the
program is independently and directly related to a valid
congressional goal. It is enough that the challenged provisions are
an integral part of the regulatory program, and that the regulatory
scheme, when considered as a whole, satisfies this test."
Hodel v. Indiana, 452 U. S. 314,
452 U. S. 329,
n. 17 (1981).
[
Footnote 23]
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,
392 U. S.
196-197, n. 27 (1968). That obviously is not the case
here.
[
Footnote 24]
In another context, the Court has noted that "the role of the
modern federal hearing examiner or administrative law judge . . .
is
functionally comparable' to that of a judge." Butz v.
Economou, 438 U. S. 478,
438 U. S. 513
(1978).
[
Footnote 25]
JUSTICE O'CONNOR reviews the constitutional history at some
length, ultimately deriving the proposition that the Framers
intended to deny the Federal Government the authority to exercise
"military or legislative power over state governments,"
instead "allow[ing] Congress to pass laws directly
affecting individuals."
Post at
456 U. S. 795.
If JUSTICE O'CONNOR means this rhetorical assertion to be taken
literally, it is demonstrably incorrect.
See, e.g.,
Transportation Union v. Long Island R. Co., 455 U.
S. 678 (1982);
Fry v. United States,
421 U. S. 542
(1975);
Parden v. Terminal R. Co., 377 U.
S. 184 (1964);
California v. Taylor,
353 U. S. 553
(1957);
Case v. Bowles, 327 U. S. 92
(1946);
United States v. California, 297 U.
S. 175 (1936).
[
Footnote 26]
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
443 U. S. 695.
As we have noted, however, PURPA does not require promulgation of
particular regulations.
[
Footnote 27]
JUSTICE O'CONNOR's partial dissent finds each of these cases
inapposite. 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
456 U. S.
784-785. Yet the courts have always been recognized as a
coequal part of the State's sovereign decisionmaking apparatus,
see Bates v. State Bar of Arizona, 433 U.
S. 350,
433 U. S. 360
(1977), and it seems evident that requiring state tribunals to
entertain federal claims interferes, at least to a degree, with the
State's sovereign prerogatives,
see n 25,
supra, as well as with the amount
of time that state courts may devote to adjudicating state claims.
Conversely, it is difficult to perceive any fundamental distinction
between the state legislature's power to establish limits on the
jurisdiction of state courts and its prerogative to set ratemaking
criteria for use by quasi-legislative utilities commissions.
JUSTICE O'CONNOR fails to explain, however, why this does not
implicate her concern that, "[w]hile engaged in . . .
congressionally mandated tasks, state utility commissions are less
able to pursue local proposals. . . ."
Post at
456 U. S.
787.
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
456 U. S. 784,
n. 13, quoting
National League of Cities v. Usery,
426 U. S. 833,
426 U. S. 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
456 U. S. 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.
[
Footnote 28]
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
65 U. S. 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
330 U. S. 389.
And
Testa, of course, placed the obligation of state
officials to enforce federal law squarely in the Supremacy
Clause.
Our recent cases also demonstrate that the Federal Government,
at least in certain circumstances, can structure the State's
exercise of its sovereign powers. In
National League of Cities
v. Usery, supra, for example, the Court made clear that the
State's regulation of its relationship with its employees is an
"undoubted attribute of state sovereignty." 426 U.S. at
426 U. S. 845.
Yet, by holding "unimpaired"
California v. Taylor,
353 U. S. 553
(1957), which upheld a federal labor regulation as applied to state
railroad employees, 426 U.S. at
426 U. S. 854,
n. 18,
National League of Cities acknowledged that not all
aspects of a State's sovereign authority are immune from federal
control. This analysis was restated in
Hodel v. Virginia
Surface Mining & Recl. Assn., supra, which indicated that
federal regulations are subject to Tenth Amendment attack only if
they "regulat[e] the
states as States,'" "address matters that
are indisputably `attributes of state sovereignty,'" and impair the
States' "ability `to structure integral operations in areas of
traditional functions.'" 452 U.S. at 452 U. S.
287-288, quoting National League of Cities v.
Usery, 426 U.S. at 426 U. S. 854,
426 U. S. 845,
426 U. S. 852.
And even when these requirements are met, "[t]here are situations
in which the nature of the federal interest advanced may be such
that it justifies state submission." Hodel v. Virginia Surface
Mining & Recl. Assn., Inc., 452 U.S. at 452 U. S. 288,
n. 29.
[
Footnote 29]
It seems evident that Congress intended to defer to state
prerogatives -- and expertise -- in declining to preempt 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 preempt the field, since that "would
leave them free to exercise their power in other areas."
Post at
456 U. S. 787.
Yet JUSTICE O'CONNOR elsewhere acknowledges the importance of
utilities regulation to the States,
post at
456 U. S. 781,
and emphasizes that local experimentation and self-determination
are essential aspects of the federal system.
Post at
456 U. S.
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 preempt a
field entirely when its preference is to let the States retain the
primary regulatory role.
[
Footnote 30]
JUSTICE O'CONNOR's partial dissent suggests that our analysis is
an "absurdity,"
post at
456 U. S. 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
456 U. S. 775,
456 U. S. 777,
456 U. S. 782,
456 U. S. 783,
456 U. S. 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 preempt the States in the regulation of private
conduct, that Congress may condition the validity of State
enactments in a preemptible area on their conformity with federal
law, and that Congress may attempt to "coerce" the States into
enacting nationally desirable legislation. Given this, the partial
dissent fails to identify precisely what is "absurd" about a scheme
that gives the States a choice between regulating in conformity
with federal requirements or abandoning regulation in a given
field. Though the partial dissent finds
Hodel v. Virginia
Surface Mining & Recl. Assn. inapposite, in our view, the
parallel is striking: there, the States were directed to legislate
consistently with congressional enactments, or not at all; here,
the States are asked to regulate in conformity with federal
requirements, or not at all. While it is true that PURPA conditions
continued state regulatory activity on the performance of certain
affirmative tasks, the partial dissent nowhere explains why -- so
long as the field is preemptible -- the nature of the condition is
relevant. And while PURPA's requirements, in practice, may be more
intrusive and more difficult for the States to avoid than was the
legislation at issue in
Hodel v. Virginia Surface Mining &
Recl. Assn., JUSTICE O'CONNOR herself acknowledges that an
"evaluation of intrusiveness . . . is simply irrelevant to the
constitutional inquiry."
Post at
456 U. S.
785-786. Similarly, the difference between PURPA and the
Surface Mining Control and Reclamation Act of 1977 identified by
the partial dissent cannot be that only the former affects a
"traditional function of state government,"
post at
456 U. S. 781,
for regulation of land use is perhaps the quintessential state
activity. In short, while the area of state action potentially
foreclosed by PURPA may be broader than was the case in
Hodel, the partial dissent has pointed to no
constitutionally significant theoretical distinction between the
two statutory schemes.
[
Footnote 31]
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 3,
infra.
[
Footnote 32]
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
456 U. S. 782.
These apocalyptic observations, while striking, are overstated and
patently inaccurate. We hold only that Congress may impose
conditions on the State's regulation of private conduct in a
preemptible area. This does not foreclose a Tenth Amendment
challenge to federal interference with the State's ability "to
structure employer-employee relationships," 426 U.S. at
426 U. S. 851,
while providing "those governmental services which [its] citizens
require,"
id. at
426 U. S. 847,
as was the case in National League of Cities. It does not suggest
that the Federal Government may impose conditions on state
activities in fields that are not preemptible, or that are solely
of intrastate concern. And it does not purport to authorize the
imposition of general affirmative obligations on the States.
[
Footnote 33]
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
452 U. S. 292,
n. 33. In any event, Congress has taken steps to reduce or
eliminate the economic burden of compliance.
See n 14,
supra.
[
Footnote 34]
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 requires that "[a]ll
findings of the commission and the determination of every matter by
it shall be in writing and placed upon its minutes." § 77-1-41.
These "shall be deemed a public record, and shall at all seasonable
times be subject to the inspection of the public."
Ibid.
Thus, the requirements that appellees characterize as an
extraordinary burden on the State appear to accord few, if any,
procedural rights not already established by Mississippi law.
JUSTICE POWELL, 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.
Page 456 U. S. 772
I
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 preempt 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. [
Footnote 2/1] It
directs that "[a]ny person (including the Secretary) may bring an
action to enforce" the obligations with respect to electrical rate
consideration that the PURPA lays upon state regulatory
commissions. [
Footnote 2/2] The
statute provides that "[a]ny person (including
Page 456 U. S. 773
the Secretary) may obtain [judicial] review of any
determination" made by a state regulatory commission regarding the
PURPA's electrical rate policies. [
Footnote 2/3] The foregoing requirements by the PURPA
intrude upon -- in effect preempt -- core areas of a State's
administrative and judicial procedure.
II
In sustaining these provisions of the Act, the Court reasons
that Congress can condition the utility regulatory activities of
States on any terms it pleases since, under the Commerce Clause,
Congress has the power to preempt completely all such activities.
Ante at
456 U. S.
765-766. Under this "threat of preemption" reasoning,
Congress -- one supposes -- could reduce the States to federal
provinces. But as
National League of Cities v. Usery,
426 U. S. 833,
426 U. S. 841
(1976), stated, and indeed as the structure of the Court's opinion
today makes plain,
ante at
456 U. S. 753
and
456 U. S. 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. [
Footnote 2/4]
Page 456 U. S. 774
"The general rule, bottomed deeply in belief in the importance
of state control of state judicial procedure, is that federal law
takes the state courts as it finds them."
Hart, The Relations Between State and Federal Law, 54
Colum.L.Rev. 489, 508 (1954). I believe the same principle must
apply to other organs of state government. It may be true that the
procedural provisions of the PURPA that prompt this dissent may not
effect dramatic changes in the laws and procedures of some States.
But I know of no other attempt by the Federal Government to
supplant state-prescribed procedures that in part define the nature
of their administrative agencies. If Congress may do this,
presumably it has the power to preempt state court rules of civil
procedure and judicial review in classes of cases found to affect
commerce. This would be the type of gradual encroachment
hypothesized by Professor Tribe:
"Of course, no one expects Congress to obliterate the states, at
least in one fell swoop. If
Page 456 U. S. 775
there is any danger, it lies in the tyranny of small decisions
-- in the prospect that Congress will nibble away at state
sovereignty, bit by bit, until someday essentially nothing is left
but a gutted shell. [
Footnote
2/5]"
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.
[
Footnote 2/1]
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).
[
Footnote 2/2]
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 (1976 ed., Supp. IV). The Federal Energy Regulatory
Commission and (under certain conditions) "[a]ny electrical
utility, qualifying cogenerator, or qualifying small power
producer" may bring judicial actions against state regulatory
commissions to require the implementation of the federal rules
prescribed by the PURPA. §§ 824a-3(h)(2)(A) and (B).
[
Footnote 2/3]
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).
[
Footnote 2/4]
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 upon state
governmental institutions to decide matters of federal policy. But
Testa recognized that, when doing so, Congress must
respect the state institution's own decisionmaking structure and
method. That opinion limited its holding to circumstances under
which the state court has "jurisdiction adequate and appropriate
under established local law to adjudicate this [federal]
action."
Id. at 394 (emphasis added). The
Testa
Court then emphasized its meaning by citing
Herb v.
Pitcairn, 324 U. S. 117
(1945), where the Court stated that "[i]t would not be open to us"
to insist on adjudication in a state court of a federal claim
arising beyond the jurisdiction of the local court.
Id. at
324 U. S. 121.
See Note, Utilization of State Courts to Enforce Federal
Penal and Criminal Statutes: Development in Judicial Federalism, 60
Harv.L.Rev. 966, 971 (1947) (nothing in
Testa upsets "the
traditional doctrine that Congress may not interfere with a state's
sovereign right to determine and control the jurisdictional
requirements of its own courts").
The Court also cites
Washington v. Washington State
Commercial Passenger Fishing Vessel Assn., 443 U.
S. 658 (1979), to support its holding.
Ante at
456 U. S. 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.
[
Footnote 2/5]
L. Tribe, American Constitutional Law 302 (1978).
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE
REHNQUIST join, concurring in the judgment in part and dissenting
in part.
I agree with the Court that the Commerce Clause supported
Congress' enactment of the 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
456 U. S. S.
770|>IV-C of the Court's opinion. [
Footnote 3/1]
Page 456 U. S. 776
I
Titles I and III of PURPA require state regulatory agencies to
decide whether to adopt a dozen federal standards governing gas and
electric utilities. [
Footnote 3/2]
The statute describes, in some detail, the procedures state
authorities must follow
Page 456 U. S. 777
when evaluating these standards, [
Footnote 3/3] but does not compel the States to adopt
the suggested federal standards. 15 U.S.C. § 3203(a) (1976 ed.,
Supp. IV); 16 U.S.C. §§ 2621 (a), 2623(a), 2627(b) (1976 ed., Supp.
IV). The latter, deceptively generous feature of PURPA persuades
the Court that the statute does not intrude impermissibly into
state sovereign functions. The Court's conclusion, however, rests
upon a fundamental misunderstanding of the role that state
governments play in our federalist system.
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.
Page 456 U. S. 778
White, 7 Wall. 700,
74 U. S. 725
(1869);
Lane County v.
Oregon, 7 Wall. 71,
74 U. S. 76
(1869).
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,
455 U. S. 686
(1982);
National League of Cities v. Usery, 426 U.S. at
426 U. S.
842-852;
Fry v. United States, 421 U.
S. 542,
421 U. S. 547,
n. 7 (1975).
See also Lafayette v. Louisiana Power & Light
Co., 435 U. S. 389,
435 U. S.
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
426 U. S. 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 426 U. S. 845
(quoting Lane County v. Oregon, supra, at 74 U. S.
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 `attribute[s] of state sovereignty,'" and
"directly impair[s] [the States'] ability to `structure integral
operations in areas of traditional governmental functions.'"
Hodel v. Virginia Surface Mining & Reclamation Assn.,
Inc., 452 U. S. 264,
452 U. S.
287-288 (1981) (quoting National League of Cities,
supra, at 426 U. S. 854,
426 U. S. 845,
426 U. S.
852). See also Transportation Union, supra, at
455 U. S. 684.
[Footnote 3/4]
Application of these principles to the present case reveals the
Tenth Amendment defects in Titles I and III. Plainly
Page 456 U. S. 779
those Titles regulate the "States as States." While the
statute's ultimate aim may be the regulation of private utility
companies, PURPA addresses its commands solely to the States.
Instead of requesting private utility companies to adopt lifeline
rates, declining block rates, or the other PURPA standards,
Congress directed state agencies to appraise the appropriateness of
those standards. It is difficult to argue that a statute
structuring the regulatory agenda of a state agency is not a
regulation of the "State."
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
456 U. S. 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. [
Footnote 3/5] Finally, PURPA specifies, with
exacting detail, the content of the standards that will absorb the
agency's time. [
Footnote 3/6]
Page 456 U. S. 780
If Congress routinely required the state legislatures to debate
bills drafted by congressional committees, it could hardly be
questioned that the practice would affect an attribute of state
sovereignty. PURPA, which sets the
Page 456 U. S. 781
agendas of agencies exercising delegated legislative power in a
specific field, has a similarly intrusive effect.
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, [
Footnote 3/7] and the
regulatory commission is the most integral part of that function.
By taxing the limited resources of these commissions, and
decreasing their ability to address local regulatory ills, PURPA
directly impairs the power of state utility commissions to
discharge their traditional functions efficiently and effectively.
[
Footnote 3/8]
The Court sidesteps this analysis, suggesting that the States
may escape PURPA simply by ceasing regulation of public utilities.
Even the Court recognizes that this choice "may be a difficult
one,"
ante at
456 U. S. 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
456 U. S. 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
Page 456 U. S. 782
U.S. 833 (1976), would have been wrongly decided, because the
States could have avoided the Fair Labor Standards Act by
"choosing" to fire all employees subject to that Act and to close
those branches of state government. [
Footnote 3/9] Similarly, Congress could dictate the
agendas and meeting places of state legislatures, because unwilling
States would remain free to abolish their legislative bodies.
[
Footnote 3/10] I do not agree
that this dismemberment of state government is the correct solution
to a Tenth Amendment challenge.
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
Page 456 U. S. 783
Hodel v. Virginia Surface Mining & Reclamation Assn.,
Inc., 452 U. S. 264
(1981), and discussed by the Court,
ante at
456 U. S.
764-765,
456 U. S. 768,
n. 30, is quite different from the decision PURPA mandates. The
Surface Mining Act invites the States to submit proposed surface
mining regulations to the Secretary of the Interior. 30 U.S.C. §
1253 (1976 ed., Supp. IV). If the Secretary approves a state
regulatory program, then the State enforces that program. If a
State chooses not to submit a program, the Secretary develops and
implements a program for that State. § 1254. Even States in the
latter category, however, may supplement the Secretary's program
with consistent state laws. [
Footnote
3/11] The Surface Mining Act does not force States to choose
between performing tasks set by Congress and abandoning all mining
or land use regulation. That statute is "a program of cooperative
federalism,"
Hodel, supra, at
452 U. S. 289,
because it allows the States to choose either to work with Congress
in pursuit of federal surface mining goals or to devote their
legislative resources to other mining and land use problems. By
contrast, there is nothing "cooperative" about a federal program
that compels state agencies either to function as bureaucratic
puppets of the Federal Government or to abandon regulation of an
entire field traditionally reserved to state authority. [
Footnote 3/12]
Page 456 U. S. 784
Yet this is the "choice" the Court today forces upon the
States.
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
456 U. S. 762.
Testa v. Katt, 330 U. S. 386
(1947), is the most suggestive of these decisions. [
Footnote 3/13] In
Testa, the
Court held that state trial courts may not refuse to hear a federal
claim if "th[e] same type of claim arising under [state] law would
be enforced by that State's courts."
Id. at
330 U. S. 394.
A facile reading of
Testa might suggest that state
legislatures must also entertain congressionally sponsored
business, as long as the federal duties are similar to existing
state obligations. Application of
Testa to legislative
power, however, vastly expands the scope of that decision. Because
trial courts of general jurisdiction do not choose the cases that
they hear, the
Page 456 U. S. 785
requirement that they evenhandedly adjudicate state and federal
claims falling within their jurisdiction does not infringe any
sovereign authority to set an agenda. [
Footnote 3/14] As explained above, however, the power
to choose subjects for legislation is a fundamental attribute of
legislative power, and interference with this power unavoidably
undermines state sovereignty. Accordingly, the existence of a
congressional authority to "enlist . . . the [state] judiciary . .
. to further federal ends,"
ante at
456 U. S. 762,
does not imply an equivalent power to impress state legislative
bodies into federal service:
The Court, finally, reasons that, because Congress could have
preempted the entire field of intrastate utility regulation, the
Constitution should not forbid PURPA's "less intrusive scheme."
Ante at
456 U. S. 765,
and n. 29. [
Footnote 3/15] The
Court's evaluation
Page 456 U. S. 786
of intrusiveness, however, is simply irrelevant to the
constitutional inquiry. The Constitution permits Congress to govern
only through certain channels. If the Tenth Amendment principles
articulated in
National League of Cities v. Usery,
426 U. S. 833
(1976), and
Hodel v. Virginia Surface Mining & Reclamation
Assn., Inc., 452 U. S. 264
(1981), foreclose PURPA's approach, it is no answer to argue that
Congress could have reached the same destination by a different
route. This Court's task is to enforce constitutional limits on
congressional power, not to decide whether alternative courses
would better serve state and federal interests. [
Footnote 3/16] I do not believe, moreover, that
Titles I and III of PURPA are less intrusive than preemption.
[
Footnote 3/17] When Congress
preempts
Page 456 U. S. 787
a field, it precludes only state legislation that conflicts with
the national approach. The States usually retain the power to
complement congressional legislation, either by regulating details
unsupervised by Congress or by imposing requirements that go beyond
the national threshold. [
Footnote
3/18] Most importantly, after Congress preempts a field, the
States may simply devote their resources elsewhere. This country
does not lack for problems demanding legislative attention. PURPA,
however, drains the inventive energy of state governmental bodies
by requiring them to weigh its detailed standards, enter written
findings, and defend their determinations in state court. While
engaged in these congressionally mandated tasks, state utility
commissions are less able to pursue local proposals for conserving
gas and electric power. The States might well prefer that Congress
simply impose the standards described in PURPA; this, at least,
would leave them free to exercise their power in other areas.
Federal preemption 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 preemption,
blurs the lines of political accountability, and leaves citizens
feeling that their representatives are no longer responsive to
local needs. [
Footnote 3/19]
The foregoing remarks suggest that, far from approving a
minimally intrusive form of federal regulation, the Court's
Page 456 U. S. 788
decision undermines the most valuable aspects of our federalism.
Courts and commentators frequently have recognized that the 50
States serve as laboratories for the development of new social,
economic, and political ideas. [
Footnote 3/20] This state innovation is no judicial
myth. When Wyoming became a State in 1890, it was the only State
permitting women to vote. [
Footnote
3/21] That novel idea did not bear national fruit for another
30 years. [
Footnote 3/22]
Wisconsin pioneered unemployment insurance, [
Footnote 3/23]
Page 456 U. S. 789
while Massachusetts initiated minimum wage laws for women and
minors. [
Footnote 3/24] After
decades of academic debate, state experimentation finally provided
an opportunity to observe no-fault automobile insurance in
operation. [
Footnote 3/25] Even
in the field of environmental protection, an area subject to heavy
federal regulation, the States have supplemented national standards
with innovative and far-reaching statutes. [
Footnote 3/26] Utility regulation itself is a field
marked by valuable state invention. [
Footnote 3/27] PURPA, which commands state agencies to
spend their time evaluating federally proposed standards and
defending their decisions to adopt or reject those standards, will
retard this creative experimentation.
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
Page 456 U. S. 790
the country at large."
1 A. de Tocqueville, Democracy in America 181 (H. Reeve
trans.1961). [
Footnote 3/28]
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, 456
U.S. 742fn3/16|>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. [
Footnote 3/29]
Today, the Court disregards this warning and permits Congress to
kidnap state utility commissions into the national regulatory
family. Whatever the merits of our national energy legislation, I
am
Page 456 U. S. 791
not ready to surrender this state legislative power to the
Federal Energy Regulatory Commission.
II
As explained above, the Court's decision to uphold Titles I and
III violates the principles of
National League of Cities v.
Usery, 426 U. S. 833
(1976), and threatens the values promoted by our federal system.
The Court's result, moreover, is at odds with our constitutional
history, which demonstrates that the Framers consciously rejected a
system in which the National Legislature would employ state
legislative power to achieve national ends.
The principal defect of the 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 represent[s] the
States, not the
people of the States: their acts
operate on the
States, not on the individuals. The case
will be
Page 456 U. S. 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
Page 456 U. S. 793
and civil liberty. [
Footnote
3/30] For this reason, the Framers concluded that "the
execution of the laws of the national government . . . should not
require the intervention of the State Legislatures," The Federalist
No. 16,
supra, at 103, and abandoned the Articles of
Confederation in favor of direct national legislation.
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,
[
Footnote 3/31] and Madison
ultimately reported that "[t]he practicability of making laws, with
coercive sanctions,
Page 456 U. S. 794
for the States as political bodies [has] been exploded on all
hands." 2
id. at 9.
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. [
Footnote 3/32] Omission of the negative,
however, left the new system without an effective means of
adjusting conflicting state and national laws. To remedy this
defect, the delegates adopted the Supremacy Clause, providing that
the Federal Constitution, laws, and treaties are "the supreme Law
of the Land," and that "the Judges in every State shall be
bound
Page 456 U. S. 795
thereby." Art. VI, cl. 2. Thus, the Framers substituted judicial
review of state laws for congressional control of state
legislatures.
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. [
Footnote 3/33] Under the Articles of
Confederation, the National Legislature operated through the
States. The Framers could have fortified the central government,
while still maintaining the same system, if they had increased
Congress' power to demand obedience from state legislatures. In
time, this scheme might have relegated the States to mere
departments of the National Government, a status the Court appears
to endorse today. The Framers, however, eschewed this course,
choosing instead to allow Congress to pass laws directly affecting
individuals, and rejecting proposals that would have given Congress
military or legislative power over state governments. In this way,
the Framers established independent state and national sovereigns.
The National Government received the power to enact its own laws
and to enforce those laws over conflicting state legislation. The
States retained the power to govern as sovereigns in fields that
Congress cannot or will not preempt. [
Footnote 3/34] This product of
Page 456 U. S. 796
the Constitutional Convention, I believe, is fundamentally
inconsistent with a system in which either Congress or a state
legislature harnesses the legislative powers of the other
sovereign. [
Footnote 3/35]
III
During his last Term of service on this Court, Justice Black
eloquently explained that our notions of federalism subordinate
neither national nor state interests:
"The concept does not mean blind deference to 'states' Rights'
any more than it means centralization of control over every
important issue in our National Government and its courts. The
Framers rejected both these courses. What the concept does
represent is a system in which there is sensitivity to the
legitimate interests of
Page 456 U. S. 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,
401 U. S. 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.
[
Footnote 3/1]
I 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 preempts state control
of private conduct, rather than regulating the "States as States."
See Hodel v. Virginia Surface Mining & Reclamation Assn.,
Inc., 452 U. S. 264,
452 U. S.
287-293 (1981).
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
456 U. S.
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.
[
Footnote 3/2]
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.
[
Footnote 3/3]
See ante at
456 U. S.
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.
[
Footnote 3/4]
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
452 U. S. 288,
n. 29;
Transportation Union, 455 U.S. at
455 U. S. 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.
[
Footnote 3/5]
As the Court recognizes,
ante at
456 U. S. 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.
[
Footnote 3/6]
For example, the proposed standards governing advertising
provide that
"[n]o electric [or gas] utility may recover from any person
other than the shareholders (or other owners) of such utility any
direct or indirect expenditure by such utility for promotional or
political advertising as [further] defined in . . . this
title."
16 U.S.C. § 2623(b)(5) (1976 ed., Supp. IV); 15 U.S.C. §
3203(b)(2) (1976 ed., Supp. IV). PURPA then defines the terms
"advertising," "political advertising," and "promotional
advertising":
"(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).
[
Footnote 3/7]
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 254 (2d ed.1976) (tracing
history of state regulation of utilities).
[
Footnote 3/8]
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 456
U.S. 742fn3/4|>n. 4,
supra. 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.
[
Footnote 3/9]
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
456 U. S. 770,
n. 32 (quoting
National League of Cities, 426 U.S. at
426 U. S. 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 preemptible area."
Ante at
456 U. S.
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 preemptible area." In
that case, Congress had required the States to pay their employees
specified amounts if they wished to continue regulating a variety
of preemptible 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
456 U. S. 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
456 U. S.
758-759, merely seems to have obscured the relevance of
National League of Cities to this case.
[
Footnote 3/10]
But cf. Coyle v. Oklahoma, 221
U. S. 569,
221 U. S. 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").
[
Footnote 3/11]
Title 30 U.S.C. § 1254(g) (1976 ed., Supp. IV) only preempts
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.
[
Footnote 3/12]
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).
[
Footnote 3/13]
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
426 U. S. 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).
[
Footnote 3/14]
The Court suggests,
ante at
456 U. S.
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.
[
Footnote 3/15]
The Court's suggestion is somewhat disingenuous, because
Congress concluded that federal preemption 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 reflect 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 preemption 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 preemption. Today's
decision, therefore, permits Congress to set state legislative
agendas in a field that Congress might have occupied, but expressly
found unsuited to preemption.
[
Footnote 3/16]
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.
[
Footnote 3/17]
In 1975, then Attorney General Edward H. Levi responded to a
similar argument that the "greater" power of preemption 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 Federal
Government."
Hearings on S. 354 before the Senate Committee on Commerce, 94th
Cong., 1st Sess., 503 (1975). In a similar vein, he warned against
"lov[ing] the States to their demise."
Id. at 507.
[
Footnote 3/18]
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 preemption "in the absence of
persuasive reasons."
Florida Lime & Avocado Growers, Inc.
v. Paul, 373 U. S. 132,
373 U. S. 142
(1963).
[
Footnote 3/19]
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 League of Cities State Sovereignty
Doctrine, 129 U.Pa.L.Rev. 1460, 1477-1478 (1981).
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).
[
Footnote 3/20]
See, e.g., Chandler v. Florida, 449 U.
S. 560,
449 U. S. 579
(1981);
Reeves, Inc. v. Stake, 447 U.
S. 429,
447 U. S. 441
(1980);
Whalen v. Roe, 429 U. S. 589,
429 U. S. 597,
and n. 20 (1977);
New State Ice Co. v. Liebmann,
285 U. S. 262,
285 U. S. 311
(1932) (Brandeis, J., dissenting); Hart,
supra, 456
U.S. 742fn3/13|>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, 456
U.S. 742fn3/19|>n.19, at 1210;
White, supra,
456
U.S. 742fn3/12|>n. 12, at 46-47.
[
Footnote 3/21]
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).
[
Footnote 3/22]
The Nineteenth Amendment, ratified in 1920, prohibits abridgment
of the right to vote "on account of sex."
[
Footnote 3/23]
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, 456
U.S. 742fn3/20|>n. 20, at 16.
[
Footnote 3/24]
See Act of June 4, 1912, ch. 706, 1912 Mass. Acts 780;
R. Morris, Encyclopedia of American History 768 (bicentennial
ed.1976).
[
Footnote 3/25]
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).
[
Footnote 3/26]
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 Waterway Operators, Inc., 411 U.
S. 325 (1973).
[
Footnote 3/27]
See FPC v. East Ohio Gas Co., 338 U.
S. 464,
338 U. S. 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").
[
Footnote 3/28]
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").
[
Footnote 3/29]
See also Stewart,
supra, 456
U.S. 742fn3/19|>n.19, at 1241-1244 (discussing "political
safeguards of federalism"); Rockefeller,
supra, 456
U.S. 742fn3/20|>n. 20, at 10.
[
Footnote 3/30]
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, 456
U.S. 742fn3/13|>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.
[
Footnote 3/31]
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.
[
Footnote 3/32]
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.
[
Footnote 3/33]
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.
[
Footnote 3/34]
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 accomplishment of its ends."
Id. at
17 U. S. 424
(emphasis added).
See also S. Davis, The Federal Principle
114 (1978) (after examining history of Constitutional Convention,
"only the principle of duality articulated in a single
constitutional system of two distinct governments, national and
state, each acting in its own right, each acting directly on
individuals, and each qualified master of a limited domain of
action, stands out as the clearest fact"); Salmon,
supra,
456
U.S. 742fn3/13|>n. 13, at 359 (discussing history of
Constitutional Convention and concluding that substitution of
Supremacy Clause for negative on state laws "evidenced the clear
distinction in [the Framers'] minds between the supremacy of the
nation, which they approved, and the power of the nation to control
the functioning of the states, which they rejected").
[
Footnote 3/35]
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).