OCTOBER TERM, 1991
Syllabus
WYOMING
v. OKLAHOMA
ON EXCEPTIONS TO REPORT OF SPECIAL MASTER
No. 112, Orig. Argued November 4, 1991-Decided January
22,1992
Wyoming, a major coal-producing State, does not sell coal, but
does impose a severance tax on those who extract it. From 1981 to
1986, Wyoming provided virtually 100% of the coal purchased by four
Oklahoma electric utilities, including the Grand River Dam
Authority (GRDA), a state agency. However, after the Oklahoma
Legislature passed an Act requiring coal-fired electric utilities
to burn a mixture containing at least 10% Oklahoma-mined coal, the
utilities reduced their purchases of Wyoming coal in favor of
Oklahoma coal, and Wyoming's severance tax revenues declined.
Wyoming sought leave to file a complaint under this Court's
original jurisdiction, seeking a declaration that the Act violates
the Commerce Clause and an injunction permanently enjoining the
Act's enforcement. The motion was granted over Oklahoma's
objections that Wyoming lacked standing to bring the action and
should otherwise not be permitted to invoke original jurisdiction.
Oklahoma's subsequently filed motion to dismiss, which raised the
same issues, also was denied. After a Special Master was appointed,
the States filed cross-motions for summary judgment, with Oklahoma
once again asserting the standing and appropriateness issues. The
Special Master filed a Report recommending that this Court hold
that Wyoming has standing to sue, that this case is appropriate to
original jurisdiction, and that the Act violates the Commerce
Clause. It also recommended that the Court either dismiss the suit
as it relates to the GRDA without prejudice to Wyoming to assert
its claim in an appropriate forum, or, alternatively, find the Act
severable to the extent that it may constitutionally be applied to
the GRDA. Both States have filed exceptions.
Held:
1. Wyoming has standing. The prior rulings on standing in this
case "should be subject to the general principles of finality and
repose, absent changed circumstances or unforeseen issues not
previously litigated."
Arizona v.
California,
460 U. S. 605,
619. Oklahoma has never suggested any change of circumstances, but
has recited the same facts, cited the same cases, and constructed
the same arguments in each of its briefs. Moreover, Wyoming's
submission satisfies the test for standing, since the State's loss
of severance tax revenues fairly can be traced to the Act. See
Maryland v.
Louisiana, 451 U. S. 725, 736. Cases
where standing has been denied to States claiming general declines
in tax rev-
438
Syllabus
enues due to federal agency actions, see,
e. g.,
Pennsylvania v.
Kleppe, 533 F.2d
668, do not involve a direct injury in the form of a loss of
specific tax revenues and thus are not analogous to this case. And
the type of direct injury suffered by Wyoming is cognizable in a
Commerce Clause action, since Wyoming's severance tax revenues are
directly linked to its coal's extraction and sale and have been
demonstrably affected by the Act. See
Hunt v.
Washington
State Apple Advertising Comm'n, 432 U. S. 333, 345.
Oklahoma v.
Atchison, T. & S. F.
R. Co.,
220 U. S. 277,
287-289, and
Louisiana v.
Texas, 176 U. S. 1,16-22,
distinguished. Pp. 446-450.
2. This is an appropriate case for the exercise of this Court's
original jurisdiction. Wyoming's Commerce Clause challenge
"implicates serious and important concerns of federalism" in accord
with the purpose and reach of original jurisdiction.
Maryland v.
Louisiana, supra, at 744. In addition,
there is no other forum in which Wyoming's interests will find
appropriate hearing and full relief. There is no pending action to
which adjudication could be deferred on this issue, since the
mining companies themselves have not brought suit. Even if such an
action were proceeding, Wyoming's interests would not be directly
represented. See
Maryland v.
Louisiana, supra, at
743. Oklahoma's suggestion that Wyoming's interest is
de
minimis because the loss in severance tax revenues attributable
to the Act is less than 1% of total taxes collected is rejected.
Wyoming coal is a natural resource of great value primarily carried
into other States for use, and Wyoming derives significant revenue
from this interstate movement. The Act's practical effect must be
evaluated not only by considering the consequences of the Act
itself, but also by considering what effect would arise if many
States or every State adopted similar legislation.
Healy v.
Beer Institute, 491
3. The Act is invalid under the Commerce Clause because it
discriminates against interstate commerce and Oklahoma has advanced
no purposes to justify such discrimination. The Act purports to
exclude coal mined from other States based solely on its origin
and, thus, discriminates both on its face and in practical effect.
The small volume of commerce affected by the Act measures only the
extent of the discrimination but is not relevant in determining
whether there has been discrimination. Additionally, Oklahoma has
not justified the discrimination in terms of the Act's local
benefits and the unavailability of nondiscriminatory alternatives
adequate to preserve those interests. Its argument that sustaining
the Oklahoma coal-mining industry lessens the State's reliance on a
single source of coal delivered over a single rail line is
foreclosed by the reasoning in
Baldwin v. G.
A. F.
Seelig, Inc., 294 U. S. 511, and
H.
P. Hood &
Sons, Inc. v.
Du Mond, 336 U. S. 525.
439
Also rejected is its contention that restricting the purchase of
Wyoming's cleaner coal now conserves that coal for future use,
since Wyoming will have coal for several hundred years at current
extraction rates, and since the argument, raised for the first time
in Oklahoma's brief on the merits, is not supported by the record.
Nor does the Federal Power Act's saving clause-which reserves to
the States the regulation of local retail electric rates-exempt the
Act from scrutiny under the Commerce Clause. There is nothing in
the Federal Act or legislative history evincing a congressional
intent to approve the violation of the Clause that Oklahoma seeks
to justify, and this Court's decisions have uniformly subjected
Commerce Clause cases implicating the Federal Power Act to scrutiny
on the merits. See,
e. g., New England Power Co. v.
New
Hampshire, 455 U.
S. 331. Pp. 454-459.
4. No portion of the Act is severable as to any entity touched
by its mandate. This Court is the proper forum to decide issues
necessary to afford Wyoming complete relief, cf.
Dorchy v.
Kansas, 264 U.
S. 286, 291, and therefore the Special Master erred in
recommending that the action against the GRDA be dismissed on the
ground that the determination of severability is one of state law.
The Special Master also erred in finding, in the alternative, the
Act severable as to the GRDA. There are no parts or separate
provisions in the invalid section of the Act, which applies to "all
entities" providing electric power. Thus, nothing remains to be
saved once that provision is stricken, and the Act must stand or
fall as a whole. Nor does the evidence support Oklahoma's argument
that its legislature intended the term "all entities" to include
only "the GRDA" or "state-owned" utilities. Pp.459-461.
5. Jurisdiction over this case is retained in the event that
further proceedings are required to implement the judgment. P.
461.
Recommendations of Special Master adopted in part; exceptions of
Wyoming sustained and exceptions of Oklahoma rejected; motion of
Wyoming for summary judgment granted and motion of Oklahoma for
summary judgment denied.
WHITE, J., delivered the opinion of the Court, in which
BLACKMUN, STEVENS, O'CONNOR, KENNEDY, and SOUTER, JJ., joined.
SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J.,
and THOMAS, J., joined,
post, p. 461. THOMAS, J., filed a
dissenting opinion, in which REHNQUIST, C. J., and SCALIA, J.,
joined,
post, p. 473.
Mary B. Guthrie, Senior Assistant Attorney General of
Wyoming, argued the cause for plaintiff. With her on the briefs
were
Joseph B. Meyer, Attorney General, and
Steve
440
C.
Jones and
Vicci M. Colgan, Senior Assistant
Attorneys General.
Neal Leader, Assistant Attorney General of Oklahoma,
argued the cause for defendant. With him on the brief were
Robert H. Henry, Attorney General, and
Thomas L.
Spencer, Assistant Attorney General. *
JUSTICE WHITE delivered the opinion of the Court.
On April 14, 1988, Wyoming submitted a motion for leave to file
a complaint under this Court's original jurisdiction provided by
Art. III, § 2, of the Constitution. The complaint challenged Okla.
Stat., Tit. 45, §§ 939 and 939.1 (Supp. 1988) (Act),l which
requires Oklahoma coal-fired electric generating plants producing
power for sale in Oklahoma to burn a mixture of coal containing at
least 10% Oklahoma-mined coal. Wyoming sought a declaration that
the Act violates the Commerce Clause, U. S. Const., Art. I, § 8,
cl. 3, and an injunction
*Marilyn S. Kite, Lawrence J. Wolfe, and William E. Mooz, Jr.,
filed a brief for the Wyoming Mining Association as amicus
curiae.
1 Act of Mar. 26, 1986, Ch. 43, §§ 1, 2, 1986 Okla. Sess. Laws
73. In full, § 939 provides:
"Coal-fired electric generating plants-Burning Oklahoma coal
"All entities providing electric power for sale to the consumer
in Oklahoma and generating said power from coal-fired plants
located in Oklahoma shall burn a mixture of coal that contains a
minimum of ten percent (10%) Oklahoma mined coal, as calculated on
a BTU (British Thermal Unit) basis."
Section 939.1 further provides:
"Cost increases to consumers and impairment of certain contracts
prohibited
"The cost to the entity shall not increase cost to the consumer
or exceed the energy cost of existing long-term contracts for
out-of-state coal preference including preference given Oklahoma
vendors as provided in Section 85.32 of Title 74 of the Oklahoma
statutes."
The referenced statute, Okla. Stat., Tit. 74, §85.32 (1981),
provides "that such preference shall not be for articles of
inferior quality to those offered from outside the state, but a
differential of not to exceed five percent (5%) may be allowed in
the cost of Oklahoma materials, supplies and provisions of equal
quality."
441
permanently enjoining enforcement of the Act. On June 30, 1988,
we granted Wyoming leave to file its bill of complaint over
Oklahoma's objections that Wyoming lacked standing to bring this
action and, in any event, should not be permitted to invoke this
Court's original jurisdiction. 487 U. S. 1231. Oklahoma next filed
a motion to dismiss on August 29, 1988, raising these same
arguments. We denied the motion to dismiss on October 31, 1988, and
ordered Oklahoma to answer Wyoming's complaint within 30 days. 488
U. S. 921. We thereafter appointed the Special Master, 489 U. S.
1063 (1989), who ordered the parties to complete discovery and to
file a stipulation of uncontested facts, any affidavits believed to
be necessary, and a short statement of any disputed issues of
material fact that may require a hearing. The parties complied, and
each moved for summary judgment. Wyoming argued that the Act is a
per se violation of the Commerce Clause. Oklahoma reasserted
its arguments on standing and the appropriateness of this Court's
exercise of original jurisdiction, submitting as well that the Act
was constitutional.
The Report of the Special Master was received and ordered filed
on October 1, 1990. 498 U. S. 803. Based on the record before him,
the Special Master recommended findings of fact, to which the
parties do not object, and conclusions of law generally supporting
Wyoming's motion for summary judgment and rejecting Oklahoma's
motion for summary judgment. More specifically, the Report
recommends that we hold, first, that Wyoming has standing to sue
and that this case is appropriate to our original jurisdiction; and
second, that the Act discriminates against interstate commerce on
its face and in practical effect, that this discrimination is not
justified by any purpose advanced by Oklahoma, and that the Act
therefore violates the Commerce Clause. The Report also recommends
that the Court either dismiss the action as it relates to an
Oklahoma-owned utility without prejudice to Wyoming to assert its
claim in an appropriate forum,
442
or, alternatively, find the Act severable to the extent it may
constitutionally be applied to that utility.
Subsequently, the parties requested the Court to enter a
stipulated decree adopting the Special Master's Report and
containing conclusions of law.2 If the decree was to rule on the
constitutionality of the Act, however, we preferred to have that
issue briefed and argued, and the case was set down for oral
argument. 501 U. S. 1215 (1991). We now adopt the Special Master's
recommended findings of fact, and, with one exception, his
recommended conclusions of law.
I
The salient facts, gathered from those recommended by the
Special Master and from other materials in the record, are as
follows.
Wyoming is a major coal-producing State and in 1988 shipped coal
to 19 other States.3 While the State of Wyoming does not itself
sell coal, it does impose a severance tax upon the privilege of
severing or extracting coal from land within its boundaries. Wyo.
Stat. §§ 39-6-301 to 39-6-308 (1990 and Supp. 1991). The tax is
assessed against the person or company extracting the coal and is
payable when the coal is extracted. The valuation of the coal for
severance tax purposes is based on its fair market value. Wyoming
has collected severance taxes on coal extracted by eight
2 In the proposed decree, the parties agreed to the Special
Master's findings of fact and his conclusions that the Act, as
applied to the privately owned utilities, violated the Commerce
Clause, but that, as applied to the Oklahoma-owned utility, the Act
was constitutional. Oklahoma agreed that application of the Act to
the private utilities would be enjoined, and Wyoming agreed that
the Act would not be enjoined as to the stateowned utility.
3 In 1988, just over 163.8 million tons of Wyoming coal was
mined. Only 14.6% of Wyoming's coal production was sold in-state.
Oklahoma purchased 8% of the coal mined, making it the third
largest out-of-state consumer, behind Texas at 19.7% and Kansas at
8.3%.
443
mining companies that sell coal to four Oklahoma electric
utilities.
The 40th Oklahoma Legislature, at its session in June 1985,
adopted a concurrent resolution "requesting Oklahoma utility
companies using coal-fired generating plants to consider plans to
blend ten percent Oklahoma coal with their present use of Wyoming
coal; effecting a result of keeping a portion of ratepayer dollars
in Oklahoma and promoting economic development." Okla. S. Res. 21,
40th Leg., 1985 Okla. Sess. Laws 1694 (hereinafter Res. 21). The
recitals and resolutions in relevant part stated:
"WHEREAS, the use of Oklahoma coal would save significant
freight charges on out-of-state coal from the State of Wyoming;
and
"WHEREAS, the savings on such freight charges could offset any
possible costs associated with plant adjustments; and
"WHEREAS, the coal-fired electric plants being used by Oklahoma
utilities are exclusively using Wyoming coal; and
"WHEREAS, the Oklahoma ratepayers are paying $300 million
annually for Wyoming coal; and "WHEREAS, a 1982 Ozark Council
Report states that $9 million of the ratepayers dollars was paid as
severance tax to the State of Wyoming ....
"NOW, THEREFORE, BE IT RESOLVED ... :
"THAT Oklahoma utilities using coal-fired generating plants
seriously consider using a blend of at least ten percent Oklahoma
coal with Wyoming coal and continue to meet air quality
standards.
"THAT the result of such a blend would assure at least a portion
of the ratepayer dollars remaining in Oklahoma and enhancing the
economy of the State of Oklahoma."
444
The four Oklahoma electric utilities subject to the requirements
of the Act are Oklahoma Gas and Electric Company, Public Service
Company of Oklahoma, and Western Farmers Electric Cooperative, all
privately owned, and the Grand River Dam Authority (GRDA), an
agency of the State of Oklahoma. None of these four heeded this
precatory resolution. At its second session, the 40th Legislature
adopted the Act challenged in this case, thus mandating the 10%
minimum purchases that the previous resolution had requested.
Fifteen months after the effective date of the Act, facing
substantially less than full compliance by any of the utilities,4
the next Oklahoma Legislature adopted a concurrent resolution
directing the GRDA, Oklahoma's state-owned public utility, to
comply with the Act. Okla. S. Res. 82, 41st Leg., 1988 Okla. Sess.
Laws 1915.5
Charts set out in the Special Master's Report show the
percentages of each utility's purchases of Oklahoma-mined coal and
Wyoming-mined coal on an annual basis from 1981
4 To date, no investigations or prosecutions have taken place.
However, violations of the Act can be prosecuted as a misdemeanor,
and the utilities can be enjoined from further violations upon
recommendation of Oklahoma's State Mining Commission. See
Oklahoma's Response to Wyoming's Interrogatory No.6.
5 The recitals and resolutions included the following:
''WHEREAS, the passage of this law in 1986 has provided over 700
new jobs in Oklahoma's coal mining industry and related employment
sectors; and
''WHEREAS, another benefit of this law is an additional $31
million of taxable income has been generated through the purchases
of Oklahoma mined coal; and
''WHEREAS, the Grand River Dam Authority has failed to comply
with said law and has refused to recognize the intent of the
Oklahoma State Legislature to utilize Oklahoma mined coal.
"NOW, THEREFORE, BE IT RESOLVED ... :
"THAT the Oklahoma State Legislature hereby directs the Grand
River Dam Authority to immediately begin purchasing Oklahoma mined
coal and to comply with the law as stated in [the Act]."
445
through the first four months of 1989. See Report of Special
Master 7-8. Those charts reveal that during the years 1981 through
1984, the four Oklahoma utilities purchased virtually 100% of their
coal requirements from Wyoming sources. These purchases decreased
slightly, if at all, in 1985 and 1986 following the adoption of the
original concurrent resolution. After January 1, 1987, the
effective date of the Act, these utilities reduced their purchases
of Wyoming coal in favor of coal mined in Oklahoma.
Unrebutted evidence demonstrates that, since the effective date
of the Act, Wyoming has lost severance taxes in the amounts of
$535,886 in 1987, $542,352 in 1988, and $87,130 in the first four
months of 1989.6 These estimates are based on an equivalence of
British Thermal Unit (BTU) ratings, thus accounting for the hotter
burning propensities of Oklahoma coal. 7 Other unrebutted
submissions confirm that Wyoming has a significant excess mining
capacity, such that
6 See Affidavit of Richard J. Marble, Director, Minerals Tax
Division, Wyoming Department of Revenue and Taxation 3 (Exh. B to
Appendix to Motion of Wyoming for Summary Judgment). Oklahoma does
not contradict these estimates. Instead, its expert, an economist
familiar with energy and coal-related issues, emphasizes only that
Wyoming experienced a more severe loss in severance tax revenues
due to its reduction of the severance tax rate and a decline in
coal market prices. Mfidavit of David M. Weinstein 2-3 (Exh. G to
Appendix to Motion of Oklahoma for Summary Judgment). At best,
Oklahoma's counteraffidavit suggests that the estimate of lost
severance tax revenues is a bit too high, pointing to the slight
percentages of Oklahoma coal purchased prior to the Act as
indicative that Wyoming did not provide 100% of the coal purchased.
Id., at 3.
7 A coal's BTU rating reflects the heat-generating efficiency of
the coal when burned. Coal extracted from Wyoming's Powder River
Basin-the source of coal shipped to Oklahoma since 1980-has a lower
average BTU rating than the Oklahoma coal delivered to the
utilities. Accordingly it takes less Oklahoma coal by weight to
generate the same amount of energy as the Wyoming coal. Because
sulfur content factors into Oklahoma's later argument, we note here
as well that Wyoming coal has a lower average sulfur content than
Oklahoma coal, thus less sulfur escapes and pollutes the air when
Wyoming coal is burned.
446
the loss of any market cannot be made up by sales elsewhere,
where Wyoming's supply has already risen to meet demand.8
II
In its motion for summary judgment before the Special Master,
Oklahoma again challenged Wyoming's standing, and now excepts to
the Special Master's recommendation that we reject Oklahoma's
submission in this respect. Having granted Wyoming leave to file
its complaint over Oklahoma's objection to standing, and having
denied Oklahoma's motion to dismiss for want of standing, and the
parties having submitted the case on cross-motions for summary
judgment, we are not at all inclined to dismiss the action at this
juncture. Although we have been reluctant to import wholesale
lawof-the-case principles into original actions,
Arizona v.
California, 460 U. S. 605, 618-619
(1983), prior rulings in such cases "should be subject to the
general principles of finality and repose, absent changed
circumstances or unforeseen issues not previously litigated."
Id., at 619. Here, Oklahoma in no way suggests any change of
circumstance, whether of fact or law. In each brief submitted on
the issue, Oklahoma has recited the same facts, cited the same
cases, and constructed the same arguments. Of course, we surely
have the power to accede to Oklahoma's request at this late date,
and if convinced, which we are not, that we were clearly wrong in
accepting jurisdiction of this case, we would not hesitate to
depart from our prior rulings.
8 One affidavit, from a principal of a consulting firm
conducting economic analysis of the coal industry, reflects that in
1987 the Wyoming Powder River Basin had an annual production
capacity of 186.4 million tons, versus actual 1987 production of
127.1 million tons. Affidavit of Seth Schwartz (Appendix to
Response to Motion to Dismiss A-2). Moreover, the Director of the
Wyoming Department of Environmental Quality, who oversees programs
for permitting coal mines, informs us that as of 1987, permitted
capacity in the Powder River Basin was 318 million tons, whereas
total production from all coal mines was 146.5 million tons.
Affidavit of Randolph Wood (Appendix to Response to Motion to
Dismiss A-5).
447
Article III, § 2, cl. 2, of the United States Constitution
provides this Court with original jurisdiction in all cases "in
which a State shall be a Party." Congress has seen fit to designate
that this Court "shall have original and exclusive jurisdiction of
all controversies between two or more States." 28 U. S. C. §
1251(a). "In order to constitute a proper 'controversy' under our
original jurisdiction, 'it must appear that the complaining State
has suffered a wrong through the action of the other State,
furnishing ground for judicial redress, or is asserting a right
against the other State which is susceptible of judicial
enforcement according to the accepted principles of the common law
or equity systems of jurisprudence.'"
Maryland v.
Louisiana, 451
U. S. 725, 735-736 (1981) (quoting
Massachusetts v.
Missouri, 308 U. S. 1, 15 (1939)); see also
New York
v.
Illinois, 274 U. S. 488, 490
(1927).
We are quite sure that Wyoming's submission satisfies this test.
We agree with the Master's conclusion, arrived at after
consideration of all the facts submitted to him, that Wyoming
clearly had standing to bring this action. The Master observed:
"The effect of the Oklahoma statute has been to deprive Wyoming
of severance tax revenues. It is undisputed that since January 1,
1987, the effective date of the Act, purchases by Oklahoma electric
utilities of Wyoming-mined coal, as a percentage of their total
coal purchases, have declined .... The decline came when, in
response to the adoption of the Act, those utilities began
purchasing Oklahoma-mined coal. The coal that, in the absence of
the Act, would have been sold to Oklahoma utilities by a Wyoming
producer would have been subject to the tax when extracted.
Wyoming's loss of severance tax revenues 'fairly can be traced' to
the Act. See Maryland v. Louisiana, 451 U. S. 725, 736 (1981)
(quoting Simon v. Eastern Kentucky Welfare Rights
448
Organization, 426 U. S. 26, 41-42
(1976))." Report of Special Master 11.9
The Master recognized that Courts of Appeals have denied
standing to States where the claim was that actions taken by United
States Government agencies had injured a State's economy and
thereby caused a decline in general tax revenues. See,
e. g.,
Pennsylvania v.
Kleppe, 174 U. S. App. D. C. 441,
533 F.2d
668, cert. denied, 429 U. S. 977 (1976);
State of Iowa ex
rel. Miller v.
Block, 771 F.2d
347 (CA8 1985), cert. denied,
478 U. S. 1012 (1986).
He concluded, however, that none of these cases was analogous to
this one because none of them involved a direct injury in the form
of a loss of specific tax revenues-an undisputed fact here. See n.
6,
supra. In our view, the Master's conclusion about
Wyoming's standing is sound.
Oklahoma argues that Wyoming is not itself engaged in the
commerce affected, is not affected as a consumer, and thus has not
suffered the type of direct injury cognizable in a Commerce Clause
action. The authorities relied on by Oklahoma for this argument,
Oklahoma v.
Atchison, T. & S.
F. R. Co.,
220 U. S. 277,
287-289 (1911), and
Louisiana v.
Texas, 176 U. S. 1, 16-22 (1900),
are not helpful, however, for they involved claims of
parens
patriae standing rather than
9We note as well that the recitals in Oklahoma's initial
concurrent resolution reflect that coal-fired electric plants
within Oklahoma were exclusively using Wyoming coal, with the
attendant recognition that "$9 million of the ratepayers dollars
was paid as severance tax to the State of Wyoming." Res.21. The
Wyoming coal that would have been sold-but no longer will be sold
due to the Act-to Oklahoma utilities by a Wyoming producer is
subject to the tax when extracted. Wyoming, which stands to regain
these lost revenues should its suit to overturn the Act succeed, is
thus "directly affected in a 'substantial and real' way so as to
justify [its] exercise of this Court's original jurisdiction."
Maryland v.
Louisiana, 451 U. S. 725, 737
(1981); see also
Texas v.
Florida, 306 U. S. 398, 407-408
(1939);
Simon v.
Eastern Ky. Welfare Rights Organization,
426 U. S. 26, 39 (1976) (plaintiff seeking to invoke Article
III judicial power must "stand to profit in some personal
interest").
449
allegations of direct injury to the State itself. Moreover, we
have rejected a similar argument in
Hunt v.
Washington
State Apple Advertising Comm'n, 432 U. S. 333 (1977). In
Hunt, the Washington State Apple Advertising Commission
brought suit to declare as violative of the Commerce Clause a North
Carolina statute requiring that all apples sold or shipped into
North Carolina in closed containers be identified by no grade other
than the applicable federal grade or a designation that the apples
were not graded. The commission was a statutory agency designed for
the promotion and protection of the Washington State apple industry
and composed of 13 state growers and dealers chosen from electoral
districts by their fellow growers and dealers, all of whom by
mandatory assessments financed the commission's operations. The
North Carolina officials named in the suit vigorously contested the
commission's standing, either in its own right or on behalf of the
apple industry it represented, arguing that it lacked a "personal
stake" in the litigation because, as a state agency, it was "not
itself engaged in the production and sale of Washington apples or
their shipment into North Carolina."
Id., at 341. After
addressing the commission's analogues to associational standing, we
turned to the commission's allegations of direct injury:
"Finally, we note that the interests of the Commission itself
may be adversely affected by the outcome of this litigation. The
annual assessments paid to the Commission are tied to the volume of
apples grown and packaged as 'Washington Apples.' In the event the
North Carolina statute results in a contraction of the market for
Washington apples or prevents any market expansion that might
otherwise occur, it could reduce the amount of the assessments due
the Commission and used to support its activities. This financial
nexus between the interests of the Commission and its constituents
coalesces with the other factors noted above to 'assure that
concrete adverseness which sharpens the
450
presentation of issues upon which the court so largely depends
for illumination of difficult constitutional questions.'
Baker v. Carr, [369 U. S. 186, 204
(1962)]; see also NAACP v. Alabama ex rel. Patterson,
357 U. S. 449,
459-460 (1958)." Id., at 345.
That the commission was allowed to proceed in
Hunt
necessarily supports Wyoming's standing against Oklahoma, where its
severance tax revenues are directly linked to the extraction and
sale of coal and have been demonstrably affected by the Act.
Over Oklahoma's objection, which is repeated here, the Special
Master also concluded that this case was an appropriate one for the
exercise of our original jurisdiction. We agree, and we obviously
shared this thought when granting Wyoming leave to file its
complaint in the first instance. We have generally observed that
the Court's original jurisdiction should be exercised "sparingly,"
Maryland v.
Louisiana, 451 U. S., at 739;
United
States v.
Nevada, 412 U. S. 534, 538
(1973), and this Court applies discretion when accepting original
cases, even as to actions between States where our jurisdiction is
exclusive. As stated not long ago:
"In recent years, we have consistently interpreted 28 U. S. C. §
1251(a) as providing us with substantial discretion to make
case-by-case judgments as to the practical necessity of an original
forum in this Court for particular disputes within our
constitutional original jurisdiction. See Maryland v.
Louisiana, 451
U. S. 725, 743 (1981); Ohio v. Wyandotte Chemicals
Corp., 401 U. S.
493, 499 (1971). We exercise that discretion with an eye to
promoting the most effective functioning of this Court within the
overall federal system." Texas v. New Mexico,
462 U. S. 554,
570 (1983).
Specifically, we have imposed prudential and equitable
limitations upon the exercise of our original jurisdiction, and of
these limitations we have said:
451
"'We construe 28 U. S. C. § 1251(a)(1), as we do Art. III, § 2,
cl. 2, to honor our original jurisdiction but to make it obligatory
only in appropriate cases. And the question of what is appropriate
concerns, of course, the seriousness and dignity of the claim; yet
beyond that it necessarily involves the availability of another
forum where there is jurisdiction over the named parties, where the
issues tendered may be litigated, and where appropriate relief may
be had.'" Illinois v. City of Milwaukee, 406 U. S.
91, 93 (1972), quoted in California v. Texas,
457 U. S. 164,
168 (1982).
It is beyond peradventure that Wyoming has raised a claim of
sufficient "seriousness and dignity." Oklahoma, acting in its
sovereign capacity, passed the Act, which directly affects
Wyoming's ability to collect severance tax revenues, an action
undertaken in its sovereign capacity. As such, Wyoming's challenge
under the Commerce Clause precisely "implicates serious and
important concerns of federalism fully in accord with the purposes
and reach of our original jurisdiction."
Maryland v.
Louisiana, 451 U. S., at 744. Indeed, we found it not to be
a "waste" of this Court's time in
Maryland v.
Louisiana to consider the validity of one State's "first-use
tax" which served, in effect, as a severance tax on gas extracted
from areas belonging to the people at large, to the detriment of
other States on to whose consumers the tax passed.
Ibid.
Wyoming's claim here is no less substantial, and touches on its
direct injury rather than on any interest as
parens
patriae.
Oklahoma makes much of the fact that the mining companies
affected in Wyoming could bring suit raising the Commerce Clause
challenge, as private parties aggrieved by state action often do.
But cf.
Hunt v.
Washington State Apple Advertising
Comm'n, supra. For reasons unknown, however, they have chosen
neither to intervene in this action nor to file their own, whether
in state or
452
federal court.10 As such, no pending action exists to which we
could defer adjudication on this issue. See,
e. g., Illinois
v.
City of Milwaukee, supra, at 98, 108;
Washington
v.
General Motors Corp., 406 U. S. 109, 114
(1972). Even if such action were proceeding, however, Wyoming's
interests would not be directly represented. See
Maryland v.
Louisiana, supra, at 743; cf.
Arizona v.
New
Mexico, 425 U. S.
794 (1976). Indeed, Wyoming brings suit as a sovereign seeking
declaration from this Court that Oklahoma's Act is
unconstitutional. The Constitution provides us original
jurisdiction, and Congress has made this provision exclusive as
between these parties, two States. It was proper to entertain this
case without assurances, notably absent here, that a State's
interests under the Constitution will find a forum for appropriate
hearing and full relief.
Oklahoma points to the general requirement, reflected in the
controlling principles explained above, that "[b]efore this court
can be moved to exercise its extraordinary power under the
Constitution to control the conduct of one State at the suit of
another, the threatened invasion of rights must be of serious
magnitude and it must be established by clear and convincing
evidence."
New York v.
New Jersey, 256 U. S. 296, 309
(1921); see also
Connecticut v.
Massachusetts,
282 U. S. 660,
669 (1931);
Missouri v.
Illinois, 200 U. S. 496, 521
(1906). On this basis Oklahoma suggests that Wyoming's interest is
de minimis solely for the reason that loss in severance tax
revenues attributable to the Act has generally been less than 1 %
of total taxes collected. See Affidavit of Richard J. Marble (Exh.
B to Appendix to Motion of Wyo-
10 A challenge in the Oklahoma courts brought by a group of
Oklahoma consumers was dismissed for lack of standing, upon a
finding that they could not suffer injury due to the Act's
prohibition on cost increase to consumers. See
Northeast
Oklahoma Electric Cooperative, Inc. v.
Grand River Dam
Authority, Case No.
C-88-127 (Dist. Ct. Craig Cty.,
Okla., Sept. 2, 1988) (Journal Entry of Judgment attached as
Appendix to Reply Brief for Oklahoma on Motion for Summary
Judgment).
453
ming for Summary Judgment). We decline any invitation to key the
exercise of this Court's original jurisdiction on the amount in
controversy.ll Oklahoma's argument is, in fact, no different than
the situation we faced in
Pennsylvania v.
West
Virginia, 262 U.
S. 553 (1923). When Pennsylvania challenged a West Virginia
statute designed to keep natural gas within its borders, there was
no question but that the issue presented rose to a level suitable
to our original jurisdiction:
"The question is an important one; for what one State may do
others may, and there are ten States from which natural gas is
exported for consumption in other States. Besides, what may be done
with one natural product may be done with others, and there are
several States in which the earth yields products of great value
which are carried into other States and there used." Id., at
596.
And so it is here. Wyoming coal is a natural resource of great
value primarily carried into other States for use, and Wyoming
derives significant revenue from this interstate movement. "[T]he
practical effect of [Oklahoma's] statute must be evaluated not only
by considering the consequences of the statute itself, but also by
considering how the challenged statute may interact with the
legitimate regulatory regimes of the other States and what effect
would arise if not
11 We would not, in any event, readily find the amount here to
be
de minimis. True, the taxes lost have amounted to less
than 1% of revenues received by Wyoming, but even this fractional
percentage exceeds $500,000 per year. Wyoming approaches this case
viewing such a drain on its tax base year after year, and it aptly
paraphrases a famous statement of Senator Everett Dirkson: "[A]
half million dollars here and a half million dollars there, and
pretty soon real money is involved." Reply Brief for Wyoming 5, n.
3. See Respectfully Quoted: A Dictionary of Quotations Requested
from the Congressional Research Service 155 (S. Platt ed. 1989) ("A
billion here, a billion there, and pretty soon you're talking about
real money").
454
one, but many or every, State adopted similar legislation."
Healy v.
Beer Institute, 491 U. S. 324, 336
(1989).
Because of the nature of Wyoming's claim, and the absence of any
other pending litigation involving the same parties or issues, we
find the present case appropriate for the exercise of this Court's
original jurisdiction. Accordingly, we accept the recommendation of
the Special Master that Wyoming should be permitted to bring this
action, and we reject Oklahoma's exceptions to the Special Master's
Report.
III
We also agree with the Special Master's ultimate conclusion that
the Act is invalid under the Commerce Clause.
The Commerce Clause of the United States Constitution provides
that "[t]he Congress shall have Power ... [t]o regulate Commerce
... among the several States ...." Art. I, § 8, cl. 3. It is long
established that, while a literal reading evinces a grant of power
to Congress, the Commerce Clause also directly limits the power of
the States to discriminate against interstate commerce. See
New
Energy Co. of Indiana v.
Limbach, 486 U. S. 269, 273 (1988)
(citing
Hughes v.
Oklahoma, 441 U. S. 322, 326
(1979);
H. P. Hood &
Sons, Inc. v.
Du
Mond, 336 U. S.
525, 534-535 (1949);
Welton v.
Missouri, 91 U. S. 275 (1876)).
"This 'negative' aspect of the Commerce Clause prohibits economic
protectionism-that is, regulatory measures designed to benefit
in-state economic interests by burdening out-of-state competitors."
New Energy Co., supra, at 273-274; see also
Bacchus
Imports, Ltd. v.
Dias, 468 U. S. 263, 270-273
(1984);
H. P. Hood &
Sons, supra, at 532-533.
When a state statute clearly discriminates against interstate
commerce, it will be struck down, see,
e. g., New Energy Co.,
supra, unless the discrimination is demonstrably justified by a
valid factor unrelated to economic protectionism, see,
e. g.,
Maine v.
Taylor, 477 U. S. 131 (1986).
Indeed, when the state statute amounts to simple economic
protectionism, a "virtually
per se rule of invalidity"
455
has applied. Philadelphia v. New Jersey,
437 U. S. 617, 624
(1978).12
The Special Master correctly found that the Act, on its face and
in practical effect, discriminates against interstate commerce. See
Bacchus Imports, Ltd. v.
Dias, supra, at 270. Section
939 of the Act expressly reserves a segment of the Oklahoma coal
market for Oklahoma-mined coal, to the exclusion of coal mined in
other States. Such a preference for coal from domestic sources
cannot be characterized as anything other than protectionist and
discriminatory, for the Act purports to exclude coal mined in other
States based solely on its origin. See
New Energy Co.,
supra, at 274;
Philadelphia v.
New Jersey, supra,
at 626-627. The stipulated facts confirm that from 1981 to 1986
Wyoming provided virtually 100% of the coal purchased by Oklahoma
utilities. In 1987 and 1988, following the effective date of the
Act, the utilities purchased Oklahoma coal in amounts ranging from
3.4% to 7.4% of their annual needs, with a necessarily
corresponding reduction in purchases of Wyoming coal.
As in its jurisdictional arguments, Oklahoma attempts to
discount this evidence by emphasizing that the Act sets aside only
a "small portion" of the Oklahoma coal market, without placing an
"overall burden" on out-of-state coal producers doing business in
Oklahoma. The volume of commerce affected measures only the
extent of the discrimination; it is of no relevance to the
determination whether a State has discriminated against interstate
commerce.
Bacchus Im-
12 There are circumstances in which a less strict scrutiny is
appropriate under our Commerce Clause decisions. "When ... a
statute has only indirect effects on interstate commerce and
regulates evenhandedly, we have examined whether the State's
interest is legitimate and whether the burden on interstate
commerce clearly exceeds the local benefits."
Brown-Forman
Distillers Corp. v.
New York State Liquor Authority, 476
U. S. 573, 579 (1986); see also
Pike v.
Bruce Church,
Inc., 397 U. S.
137, 142 (1970). While we have recognized that there is no
"clear line" separating close cases on which scrutiny should apply,
Brown-Forman Distillers, supra, at 579, this is not a close
case.
456
ports, Ltd. v. Dias, supra, at 268-269; Maryland v. Louisiana,
451 U. S., at 760; Lewis v. BT Investment Managers, Inc.,
447 U. S. 27, 39-42
(1980). As we have only recently reaffirmed:
"Our cases ... indicate that where discrimination is patent, as
it is here, neither a widespread advantage to in-state interests
nor a widespread disadvantage to out-of-state competitors need be
shown .... Varying the strength of the bar against economic
protectionism according to the size and number of in-state and
out-ofstate firms affected would serve no purpose except the
creation of new uncertainties in an already complex field." New
Energy Co., supra, at 276-277.
Because the Act discriminates both on its face and in practical
effect, the burden falls on Oklahoma" 'to justify it both in terms
of the local benefits flowing from the statute and the
unavailability of nondiscriminatory alternatives adequate to
preserve the local interests at stake.'''
Hughes v.
Oklahoma, supra, at 336 (quoting
Hunt v.
Washington State Apple Advertising Comm'n, 432 U. S., at
353). "At a minimum such facial discrimination invokes the
strictest scrutiny of any purported legitimate local purpose and of
the absence of nondiscriminatory alternatives."
Hughes v.
Oklahoma, supra, at 337. We agree with the Special Master's
recommended conclusions that Oklahoma has not met its burden in
this respect. In this Court, Oklahoma argues quite briefly that the
Act's discrimination against out-of-state coal is justified because
sustaining the Oklahoma coal-mining industry lessens the State's
reliance on a single source of coal delivered over a single rail
line. This justification, as the Special Master noted, is
foreclosed by the Court's reasoning in
Baldwin v. G.
A.
F. Seelig, Inc., 294 U. S. 511 (1935), and
H. P. Hood &
Sons, Inc. v.
Du Mond, supra,
cases that the State's brief ignores. We have often examined a
"presumably legitimate goal," only to find that the State at-
457
tempted to achieve it by "the illegitimate means of isolating
the State from the national economy."
Philadelphia v.
New
Jersey, supra, at 627.
The State embellishes this argument somewhat when suggesting
that, by requiring the utilities to supply 10% of their needs for
fuel from Oklahoma coal, which because of its higher sulfur content
cannot be the primary source of supply, the State thereby conserves
Wyoming's cleaner coal for future use. We have no reason to doubt
Wyoming's unrebutted factual response to this argument: Reserves of
low sulfur, clean-burning, sub-bituminous coal from the Powder
River Basin are estimated to be in excess of 110 billion tons, thus
providing Wyoming coal for several hundred years at current rates
of extraction. Reply Brief for Wyoming 9, n. 4 (citing Geological
Survey of Wyoming, Guidebook of the Coal Geology of the Powder
River Basin, Public Information Circular No. 14, p. 126 (1980)). In
any event, this contention, which is raised for the first time in
Oklahoma's brief on the merits, finds no support in the records
made in this case. See
Hughes v.
Oklahoma, 441 U. S.,
at 337-338, and n. 20; cf.
Maine v.
Taylor, 477 U.
S., at 148-149.
Oklahoma argues more seriously that the "saving clause" of the
Federal Power Act, 16 U. S. C. § 824(b)(1),13 which reserves to the
States the regulation of local retail electric rates, makes
permissible the Act's discriminatory impact on the movement of
Wyoming coal in interstate commerce. Oklahoma argues that it "has
determined that effective and helpful ways of ensuring lower local
utility rates include 1) reducing over-dependence on a single
source of supply, a single
13 "The provisions of this subchapter shall apply to the
transmission of electric energy in interstate commerce and to the
sale of electric energy at wholesale in interstate commerce, but
except as provided in paragraph (2) shall not apply to any other
sale of electric energy or deprive a State or State commission of
its lawful authority now exercised over the exportation of
hydroelectric energy which is transmitted across a State line." 16
U. S. C. § 824(b)(1).
458
fuel transporter, and 2) conserving needed low-sulfur coal for
the future." Brief for Oklahoma 65. Even if the Act is accepted as
part of the State's rate-regulating authority, we cannot accept the
submission that it is exempt from scrutiny under the Commerce
Clause. Congress must manifest its unambiguous intent before a
federal statute will be read to permit or to approve such a
violation of the Commerce Clause as Oklahoma here seeks to justify.
Maine v.
Taylor, supra, at 139;
South-Central
Timber Development, Inc. v.
Wunnicke, 467 U. S. 82, 91 (1984).
We have already examined §824(b)(1) in
New England Power Co.
v.
New Hampshire, 455 U. S. 331 (1982), and
found nothing in the statute or legislative history "evinc[ing] a
congressional intent 'to alter the limits of state power otherwise
imposed by the Commerce Clause.'"
Id., at 341 (quoting
United States v.
Public Utilities Comm'n of Cal.,
345 U. S. 295,
304 (1953)). There is no hint in that opinion, as suggested by
Oklahoma, that a
partial-instead of
total-ban would
have been permissible, or that in-state purchasing quotas imposed
on utilities in an effort to regulate utility rates are within the
"lawful authority" of the States under § 824(b)(1). Instead, our
decision turned on the recognition that "Congress did no more than
leave standing whatever valid state laws then existed relating to
the exportation of hydroelectric energy; by its plain terms,
[§824(b)] simply saves from pre-emption under Part II of the
Federal Power Act such state authority as was otherwise 'lawful.'"
New England Power Co., supra, at 341. Our decisions have
uniformly subjected Commerce Clause cases implicating the Federal
Power Act to scrutiny on the merits. See,
e. g., New England
Power Co., supra; Arkansas Electric Cooperative Corp. v.
Arkansas Pub. Servo Comm'n, 461 U. S. 375, 393
(1983).
We need say no more to conclude that Oklahoma has not met its
burden of demonstrating a clear and unambiguous intent on behalf of
Congress to permit the discrimination against interstate commerce
occurring here. In light of the
459
foregoing, we adopt the Special Master's conclusion that the Act
manifests fatal defects under the Commerce Clause.
IV
Finally, we address a question of severability raised in the
exceptions filed by Wyoming to the Special Master's Report.
The GRDA is an agency of the State of Oklahoma, and, as such,
Oklahoma acts as a market participant in directing its purchases of
coal. We have recognized that the Commerce Clause does not restrict
the State's action as a free market participant.
Reeves,
Inc. v.
Stake, 447 U. S. 429, 436-437
(1980); Hughes v.
Alexandria Scrap Corp., 426 U. S. 794, 806-810
(1976). The Special Master recommends that the market-participant
exception is available to Oklahoma, but only if the application of
the Act to the GRDA may be considered separately, or severed, from
its application to the three private utilities. As the
determination of severability will in this situation be one of
state law,
Hooper v.
Bernalillo County Assessor,
472 U. S. 612,
624 (1985), the Special Master recommends that we enter judgment
with respect to the three private utilities but dismiss Wyoming's
complaint as it relates to the GRDA without prejudice to the right
of Wyoming to reassert the claim in an "appropriate forum." Report
of Special Master 32. We sustain Wyoming's exception to these
recommendations of the Special Master. This action is one between
two States presented under our original jurisdiction; this Court is
the appropriate forum to decide issues necessary to afford the
complaining State complete relief. Cf.
Dorchy v.
Kansas, 264 U.
S. 286, 291 (1924). We deem it proper and advisable to address
the issue of severability ourselves.
In the alternative, the Special Master looked to Oklahoma law
and found the Act severable as to the GRDA, a conclusion with which
we disagree. It is true that Oklahoma courts have held that valid
portions of a statute are severable "'unless it is evident that the
Legislature would not
460
have enacted the valid provisions with the invalid provisions
removed, if with the invalid provisions removed the rest of the act
is fully operative as a law.'"
Englebrecht v.
Day,
201 Okla. 585, 591, 208 P. 2d 538, 544 (1949) (quoting
Sterling
Refining Co. v.
Walker, 165 Okla. 45, 25 P. 2d 312
(1933)). It is also true that under Oklahoma law, a severability
clause in a statute creates a presumption that the legislature
would have adopted the statute with the unconstitutional portions
omitted. 201 Okla., at 591, 208 P. 2d, at 544; see
Champlin
Refining Co. v.
Corporation Comm'n of Oklahoma, 286 U. S. 210, 234-235
(1932) (inquiring into severability under Oklahoma law). The Act in
this case contains a severability provision:
"The provisions of this act are severable and if any part or
provision shall be held void, the decision of the court so holding
shall not affect or impair any of the remaining parts or provisions
of this act." Act of Mar. 26, 1986, Ch. 43, § 3, 1986 Okla. Sess.
Laws 74.
But there are no parts or separate provisions in the invalid §
939 of the Act. It applies to "[a]ll entities providing electric
power for sale to the consumer in Oklahoma" and commands them to
purchase 10% Oklahoma-mined coal. Okla. Stat., Tit. 45, § 939
(Supp. 1988). Nothing remains to be saved once that provision is
stricken. Accordingly, the Act must stand or fall as a whole.
We decline Oklahoma's suggestion that the term "all entities" be
read to uphold the Act only as to the GRDA, for it is clearly not
this Court's province to rewrite a state statute. If "all entities"
is to mean "the GRDA" or "state-owned utilities," the Oklahoma
Legislature must be the one to decide. Indeed, this argument
perceives the nature of the severability clause to be much
different than that written by the Oklahoma Legislature.
Severability clauses may easily be written to provide that if
application of a statute to some classes is found unconstitutional,
severance of those classes permits
461
application to the acceptable classes.14 Moreover, the statute
could itself have been written to address explicitly the GRDA.15
The legislature here chose neither course.
The State provides no additional insight into the intent of its
legislature on this question. The Act would become a fundamentally
different piece of legislation were it construed to apply only to
the GRDA. We leave to the Oklahoma Legislature to decide whether it
wishes to burden this stateowned utility when private utilities
will otherwise be free of the Act's restrictions.
v
We deny Oklahoma's motion for summary judgment and grant that of
Wyoming. In sum, we hold that the Act is unconstitutional under the
Commerce Clause. No portion is severable as to any entity touched
by its mandate. A judgment and decree to that effect and enjoining
enforcement of the Act will be entered. Jurisdiction over the case
is retained in the event that further proceedings are required to
implement the judgment.
So ordered.
JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS
join, dissenting.
In the almost century and a half since we first entered the
business of entertaining "negative Commerce Clause" actions, see
Cooley v.
Board of Wardens of Port of Philadelphia ex
rel. Society for Relief of Distressed Pilots, 12 How. 299
(1852), I think it safe to say that the federal courts have
14 See,
e. g.,
INS v.
Chadha, 462 U. S. 919, 932
(1983), where the severability clause provided: "'If any particular
provision of this Act, or the application thereof to any person or
circumstance, is held invalid, the remainder of the act and the
application of such provision to other persons or circumstances
shall not be affected thereby'" (emphasis deleted).
15 See,
e. g., Mo. Ann. Stat. § 34.080 (Vernon 1969),
which expressly requires all state agencies to purchase Missouri
coal if it is available at a competitive price.
462
never been plagued by a shortage of these suits brought by
private parties, and that the nontextual elements of the Commerce
Clause have not gone unenforced for lack of willing litigants.
Today, however, when the coal companies with sales allegedly
affected by the Oklahoma law have, for whatever reason, chosen not
to litigate, the Court sees fit, for the first time, to recognize a
State's standing to bring a negative Commerce Clause action
on the basis of its consequential loss of tax revenue. That is a
major step, and I think it is wrong. Even if it were correct,
however, summary judgment that Wyoming suffered consequential loss
of tax revenue in the present case would be unjustified. I would
deny Wyoming's motion for summary judgment and grant
Oklahoma's.
I
At the outset, let me address briefly the Court's suggestion
that our previous rejections of Oklahoma's standing objections-when
we granted Wyoming leave to file its complaint and when we denied
Oklahoma's motion to dismiss for want of standing-somehow impede us
from considering that objection today.
Ante, at 446. To
begin with, the "law-of-thecase principles" which the Court
suggests should be persuasive albeit not necessarily binding in
original actions,
ibid., have never to my knowledge been
applied to jurisdictional issues raised (or reraised) before final
judgment. To the contrary, it is a court's
obligation to
dismiss a case
whenever it becomes convinced that it has no
proper jurisdiction, no matter how late that wisdom may arrive. See
Fed. Rule Civ. Proc. 12(h)(3)
("Whenever it appears ... that
the court lacks jurisdiction of the subject matter, the court
shall dismiss the action") (emphasis added). See also
Jenkins v.
McKeithen, 395 U. S. 411, 421
(1969). Of course, this does not mean that a court need let itself
be troubled by the same jurisdictional objection raised over and
over again, when it has thoroughly considered that issue once and
remains convinced that it resolved the issue correctly. But that is
quite
463
different from "law of the case," which would give effect even
to an erroneous decision, simply because it has already been
made.
And in the present case, we have
not considered the
standing issue thoroughly once before. We disposed of Oklahoma's
preliminary standing objections summarily, without oral argument
and without opinion. I considered us to be deciding at that time,
not, once and for all, that standing existed, but simply that the
absence of standing was not so clear that our normal practice of
permitting the suit to be filed and of referring all questions
(including the standing question) to a special master should
be short circuited. The parties apparently understood our action
that way, since the standing issue was raised (without
"law-of-the-case" objection from Wyoming) before the Special
Master. And the Master certainly did not think that we had
conclusively decided the point, since he received argument on it
and discussed it as the very first of the "three legal issues that
require a recommendation to the Court." Report of Special Master
10. If the
Special Master was not precluded by our prior
action, it is hard to understand why we ourselves would be.
There is no unfairness to Wyoming in this. To be sure, we might
have given the standing question full-dress consideration to begin
with, and, if we concluded in Oklahoma's favor, could have spared
the parties lengthy proceedings before the Special Master. But the
same could be said of the substantive issue whether the Act
violated the Commerce Clause. Our choice not to proceed in that
fashion was both in accord with ordinary practice and in my view
sound. Almost all other litigants must go through at least two
other courts before their case receives our attention. It has
become our practice in original-jurisdiction cases to require
preliminary proceedings before a special master, to evaluate the
facts and sharpen the issues. Wyoming has no cause for complaint
that we did that here, and we should not distort
464
our jurisdictional holding on the basis of some misguided
feeling of estoppel.
Finally, even if the Court were correct that some "change of
circumstance,"
ante, at 446, ought to be presented before
the jurisdictional objection that we denied so cursorily at the
preliminary stage can be reraised, such a change in fact exists.
The litigation has reached a
new stage, having proceeded
from a motion for judgment on the pleadings (which we denied) to
cross-motions for summary judgment (which the Special Master
recommended resolving in favor of Wyoming). When a district court
denies the former, it need feel no compunction of consistency to
deny the latter; and the same is true for us. The standing issue is
obviously subject to different evaluation, depending upon the stage
the litigation has reached. A plaintiff may survive a motion to
dismiss for lack of injury in fact by merely alleging that a string
of occurrences commencing with the challenged act has caused him
injury; at that stage we presume that "general allegations embrace
those specific facts that are necessary to support the claim,"
Lujan v.
National Wildlife Federation, 497 U. S. 871, 889
(1990). See also
Whitmore v.
Arkansas, 495 U. S. 149, 158-159
(1990). A plaintiff cannot, however, on the basis of the same
generalizations, obtain or avoid summary judgment, where a moving
party must "show that there is no genuine issue as to any material
fact," Fed. Rule Civ. Proc. 56(c), and where a nonmoving party
cannot rest on "mere allegations" to counter a properly supported
motion, but must set forth "specific facts" through affidavits or
other evidence, Fed. Rule Civ. Proc. 56(e). See
Lujan,
supra, at 884-885. See also
Gladstone, Realtors v.
Village of Bellwood, 441 U. S. 91, 115, and n.
31 (1979). It is the adequacy of
these presentations that
Oklahoma now asks us to evaluate-and we have not evaluated them
before.
465
II
It is axiomatic that "a litigant first must clearly demonstrate
that he has suffered an 'injury in fact'" in order to assert
Article III standing to sue.
Whitmore, supra, at 155. In
assessing a claim to injury, "[w]e presume that federal courts lack
jurisdiction unless the contrary appears affirmatively from the
record,"
Renne v.
Geary, 501 U. S. 312, 316 (1991)
(internal quotation marks omitted). See also
Bender v.
Williamsport Area School Dist., 475 U. S. 534, 546
(1986); it is accordingly "the burden of the party who seeks the
exercise of jurisdiction in his favor ... clearly to allege facts
demonstrating" that he has been injured.
FW/PBS, Inc. v.
Dallas, 493 U.
S. 215, 231 (1990) (internal quotation marks omitted). This
burden is "substantially more difficult" to bear when the asserted
injury is "highly indirect and results from the independent action
of some third party not before the court" -for the simple reason
that there are more variables involved.
Allen v.
Wright, 468 U.
S. 737, 757-759 (1984). See also
Simon v.
Eastern Ky.
Welfare Rights Organization, 426 U. S. 26, 42, 44-45
(1976);
Warth v.
Seldin, 422 U. S. 490, 504-505
(1975). It is incumbent upon the plaintiff to eliminate those
variables through "specific, concrete facts," showing that the
third party actually acted as he maintains and that the injury
actually occurred.
Id., at 508.
As I have mentioned, the plaintiff's success in meeting this
burden is to be assessed under the rules governing the stage the
litigation has reached. See
Lujan, supra, at 884-885. See
also
Gladstone, supra, at 115, and n. 31;
Simon,
supra, at 45, n. 26;
Warth, supra, at 527, and n. 6
(Brennan, J., dissenting). Wyoming's motion for summary judgment
thus cannot be granted unless Wyoming has demonstrated that "there
is no genuine issue" as to its injury, Fed. Rule Civ. Proc. 56(c),
see
Adickes v. S.
H. Kress &
Co., 398 U. S. 144, 157
(1970)-which means that "[i]f reasonable minds could differ as to
the import of the evidence," the motion must be
466
denied,
Anderson v.
Liberty Lobby, Inc., 477 U. S. 242, 250251
(1986). To be entitled to prevail at this stage, therefore, Wyoming
must have submitted "specific, concrete facts,"
Warth,
supra, at 508, which when "viewed in the light most favorable"
to Oklahoma "foreclose" all reasonable inferences that Wyoming was
not injured by the Act,
Adickes, supra, at 157. Wyoming has
not in my view remotely carried that burden, and the Special
Master's recommendation to grant its motion for summary judgment
must be rejected.
The Special Master apparently thought Wyoming's injury
unquestionable because it is undisputed that, since the Act's
effective date, Oklahoma utilities have bought less Wyoming coal as
a percentage of their coal purchases. Report of Special Master 11.
I am willing to assume for the sake of argument that that
undisputed fact compels the inference that less Wyoming coal was
sold in Oklahoma as a result of the Act. To establish injury,
however, Wyoming had to show not merely that the statute caused
Oklahoma
sales to be lost, but that it prevented Wyoming
"severances" of coal from occurring. Wyoming does not tax
sales of coal to Oklahoma utilities; it taxes severances. The loss
of a particular Oklahoma sale would not hurt Wyoming's treasury at
all unless (1) the coal that was the subject of that sale was not
severed to be sold elsewhere, or (2) if it was severed to be sold
elsewhere, that latter sale (and severance) would have occurred
even if the Oklahoma sale had been made.
The Court o'erleaps this inconvenient obstacle by asserting that
"a loss of specific tax revenues [is] an undisputed fact here."
Ante, at 448. I cannot imagine where this helpful concession
comes from. The Special Master listed the undisputed facts, and it
is not among them. See Report of Special Master 2-10, 11.
The Court also appears to believe that the second of the above
described means of connecting sales loss with tax loss is
established by the fact that "Wyoming has a significant
467
excess mining capacity"; this fact, according to the Court,
necessarily means that "the loss of any market cannot be made up by
sales elsewhere."
Ante, at 445, 446. That is not so. Excess
capacity
can mean the existence of facilities capable of
producing additional quantities of goods that can be sold for a
profit at current market prices-in which case the loss of one sale
cannot really be "replaced" by the gain of another. But excess
capacity
need not mean that. It can also mean the existence
of facilities that lie fallow because, although they can produce
additional quantities of goods, they cannot do so at a cost that
will yield a profit at current market prices. Innumerable capped or
unexploited oil wells in this country exemplify that phenomenon. If
that is the sort of excess capacity the Wyoming coal industry has,
it nonetheless has a limited capability of sales at current market
prices-in which case so long as that capability has been fully
achieved no tax revenue has been lost.
The excess capacity attested to by Wyoming's experts may well
have been of this latter sort, since it was said to have been
created in response to 1970's "forecasts of high demand growth."
Affidavit of Seth Schwartz, Appendix to Response to Motion to
Dismiss A-2. Higher demand generally means higher prices, and the
coal companies might well have brought new, higher cost production
facilities on line (for example, deep-pit mines) that are at
current prices not competitive. Even if the entire "excess
capacity" is competitive, since much of it came (according to
Wyoming's expert) from the opening of "new mines," ibid., another
possibility is that the Wyoming industry responded to
less-thananticipated demand in an efficient manner-by closing down
some of the mines entirely rather than leaving them all in
operation at a fraction of capacity. Under these conditions, it
might well not pay a particular company to make a particular
additional sale, if that additional sale would require the
468
reopening of an additional mine, with the incremental cost that
entails. *
The speculations Wyoming invites us to engage in are certainly
plausible (though one must be given pause by the fact that the
Wyoming coal companies themselves-who if Wyoming is right have lost
not just the
tax on the severances but the
entire
profits-have not chosen to litigate). Were this a trial on the
record I might well conclude that it is more likely than not that
Wyoming was injured. But "at the summary judgment stage [our]
function is not to weigh the evidence."
Anderson, supra, at
249. It has at least not been conclusively established that Wyoming
coal producers would have sold coal in addition to that diverted
from the (presumably) lost Oklahoma sales. A genuine issue of
material fact thus exists, and the Special Master's recommendation
that we grant Wyoming's motion for summary judgment must be
rejected.
III
Even if Wyoming had fully established, in the manner Rule 56
provides, the "injury in fact" required by Article III, I would
still conclude that it does not have standing to bring this suit,
and would grant Oklahoma's cross-motion for summary judgment.
"Beyond the constitutional requirements, the federal judiciary has
also adhered to a set of prudential principles that bear on the
question of standing."
Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc.,
454 U. S. 464,
474 (1982).
*Wyoming's expert, a coal market analyst from Virginia, averred
by affidavit that "[i]n [his] opinion" the lost sales could not be
made up. Mfidavit of Seth Schwartz, Appendix to Response to Motion
to Dismiss A-3. That is not enough to establish the point. Schwartz
did not, as Rule 56(e) requires, set forth the "facts" upon which
he based his opinion. Just as the requirements for summary judgment
are not met when a court makes unsubstantiated inferences about a
third party's behavior, see, e. g., Lujan v.
National Wildlife
Federation, 497
U. S. 871, 884-885 (1990), they are not met when the plaintiff
hires an outside expert to do the same.
469
One of these is the requirement that the plaintiff "establish
that the injury he complains of
(his aggrievement, or the
adverse effect
upon him) falls within the 'zone of
interests' sought to be protected by the statut[e] [or
constitutional guarantee] whose violation forms the legal basis for
his complaint."
Air Courier Conference of America v.
Postal Workers, 498 U. S. 517, 523-524
(1991) (internal quotation marks omitted). The "zone-of-interests"
formulation first appeared in cases brought under § 10 of the
Administrative Procedure Act, 5 U. S. C. § 702, see
Association
of Data Processing Service Organizations, Inc. v.
Camp,
397 U. S. 150,
153 (1970), but we have subsequently made clear that the same test
similarly governs claims under the Constitution in general, see,
e. g., Valley Forge, supra, at 475, and under the negative
Commerce Clause in particular, see
Boston Stock Exchange v.
State Tax Comm'n, 429 U. S. 318, 320321, n.
3 (1977). Indeed, we have indicated that it is
more strictly
applied when a plaintiff is proceeding under a "constitutional ...
provision" instead of the "generous review provisions of the APA."
Clarke v.
Securities Industry Assn., 479 U. S. 388, 400, n. 16
(1987).
The zone-of-interests test "denies a right of review if the
plaintiff's interests are ... marginally related to or inconsistent
with the purposes implicit in the [constitutional provision]."
Id., at 394, 399. The usual starting point for
zoneof-interests analysis is the text of the provision at issue,
see
Air Courier Conference, 498 U. S., at 524-525; since,
however, the negative Commerce Clause is an inference rather than a
text, the starting point here must be the history and purposes of
the inference, see id., at 526-527.
Our negative Commerce Clause jurisprudence grew out of the
notion that the Constitution implicitly established a national free
market, under which, in Justice Jackson's words, "every farmer and
every craftsman shall be encouraged to produce by the certainty
that he will have free access to every market in the Nation [and]
every consumer may
470
look to the free competition from every producing area of the
Nation to protect him from exploitation."
H. P. Hood &
Sons, Inc. v.
Du Mond, 336 U. S. 525, 539
(1949). Virtually every one of our cases in this area thus begins
its analysis with some form of the incantation that "the very
purpose of the Commerce Clause was to create an area of free trade
among the several States ... [and the Clause] by its own force
created an area of trade free from interference by the States."
Westinghouse Electric Corp. v.
Tully, 466 U. S. 388,
402-403 (1984) (internal quotation marks omitted); see also
Boston Stock Exchange, supra, at 328;
American Trucking
Assns., Inc. v.
Scheiner, 483 U. S. 266, 280
(1987). Just last Term we said that the negative Commerce Clause
"confer[s] a 'right' to engage in interstate trade free from
restrictive state regulation," for it "was intended to benefit
those who ... are engaged in interstate commerce."
Dennis
The coal companies, of course, would pass the zone-ofinterests
test. So would Wyoming if it bought or sold coal, or otherwise
directly participated in the coal market. It would then be
"asserting [its]
right ... to engage in interstate commerce
free of discriminat[ion],"
Boston Stock Exchange, supra, at
320-321, n. 3 (emphasis added). But Wyoming's right to collect
taxes presents an entirely different category of interest, only
marginally related to the national market/free trade foundation of
our jurisprudence in this area; indeed, it is in a sense positively
antagonistic to that objective, since all state taxes, even
perfectly constitutional ones, burden interstate commerce by
reducing profit. Thus, when state taxes have been at issue in our
prior negative Commerce Clause cases they have been the object of
the plaintiff's challenge rather than the basis for his standing;
and we have looked upon the State's interest in tax collection as a
value to be
weighed against the purposes of our Commerce
Clause jurisprudence. Thus, Wyoming's interest in this case falls
far shorter of meeting the zone-of-interests
471
test than did that of the plaintiff postal union in
Air
Courier Conference, supra, at 528: Whereas the latter's
interest in securing employment for postal workers, although
distinct from the statute's goal of providing postal services to
the citizenry, at least coincided with that goal a good amount of
the time, here the asserted interest (tax collection) and the
constitutional goal invoked to vindicate it (free trade) are
antithetical.
In seeming response to a zone-of-interests argument, the Court
quotes,
ante, at 449, our statement in
Hunt v.
Washington State Apple Advertising Comm'n, 432 U. S. 333, 345
(1977), that "the interests of the [Washington State Apple
Advertising] Commission itself may be" at issue in the litigation,
because "[i]n the event the North Carolina statute results in a
contraction of the market for Washington apples or prevents any
market expansion that might otherwise occur, it could reduce the
amount of the assessments due the Commission." The Court fails to
note that this statement was
preceded by the square holding
that the State Apple Advertising Commission had standing to sue
as an association on behalf of its members, the apple
growers and dealers (who were in the same position as the coal
companies here):
"If the Commission were a voluntary membership organization-a
typical trade association-its standing to bring this action as a
representative of its constituents would be clear ....
"The only question presented, therefore, is whether, on this
record, the Commission's status as a state agency, rather than a
traditional voluntary membership organization, precludes it from
asserting the claims of the Washington apple growers and dealers
who form its constituency. We think not." Id., at
342-344.
Only after finding associational standing did we speculate, in
the passage the Court quotes, that the commission itself
472
"may be" adversely affected because its revenue collections
"could [be] reduce[d]."
Id., at 345. I hardly think that
musings of this sort are grounds for disregarding the obvious
application of the zone-of-interests test to the present
caseparticularly as the Court in Hunt did not purport to be
applying that test. The dicta in Hunt, moreover, were applying a
since-repudiated understanding of the purpose of the standing
requirement. Compare the last sentence of the passage quoted by the
Court (taking the purpose to be "to 'assure that concrete
adverseness which sharpens the presentation of issues ... ,'"
ibid., quoting
Baker v.
Carr, 369 U. S. 186,
204 (1962)), with Allen, 468 U. S., at 750-752 (asserting that
standing performs a separation-of-powers function, restricting the
courts to their traditional role).
Of course, if the state interest in collecting severance taxes
does fall within the zone of interests of the Commerce Clause, so
must every other state taxing interest. The zone-of-interest test,
as opposed to the injury-in-fact requirement, turns on the type of
interest asserted and not on its speculativeness or its degree of
attenuation from its alleged source. The injury-in-fact
requirement, of course, will still remain-but if and when
de
facto causality can be established, every diminution of state
revenue attributable to the allegedly unconstitutional commercial
regulation of a sister State will now be the basis for a lawsuit.
Suits based on loss of sales tax revenue ought to become a regular
phenomenon, since it is no more difficult to show that an automatic
sales tax was lost on a particular sale than it is to show that the
severance tax was lost here. Further expansions of standing (or
irrational distinctions) lurk just around the corner: If a State
has a litigable interest in the taxes that would have been paid
upon an unconstitutionally obstructed sale, there is no reasonable
basis for saying that a company salesman does not have a litigable
interest in the commissions that would have been paid, or a union
in the wages that would have been earned.
473
In abandoning the zone-of-interests test, the Court abandons our
chosen means of giving expression, in the field of constitutional
litigation, to the principle that "the judicial remedy cannot
encompass every conceivable harm that can be traced to alleged
wrongdoing."
Associated General Contractors of Cal., Inc. v.
Carpenters, 459 U. S. 519, 536
(1983). The "zone-of-interests" test performs the same role as many
other judge-made rules circumscribing the availability of damages
in tort and contract litigation-doctrines such as foreseeability
and proximate cause, see,
e. g., Palsgraf v.
Long Island
R. Co., 248 N. Y. 339, 162 N. E. 99 (1928); directness of
injury, see,
e. g., Associated General Contractors, supra,
at 540-541; the limitation on suits by third-party beneficiaries of
contracts, see,
e. g., Restatement (Second) of Contracts §
302(1) (1981); and the contemporaneous ownership rule governing
shareholders' derivative actions, see,
e. g., Fed. Rule Civ.
Proc. 23.1. When courts abolish such limitations and require, as
our opinion does today, nothing more than a showing of
de
facto causality, exposure to liability becomes immeasurable and
the scope of litigation endless. If today's decision is adhered to,
we can expect a sharp increase in state against state Commerce
Clause suits; and if its rejection of the zone-of-interests test is
applied logically, we can expect a sharp increase in all
constitutional litigation.
***
Of the three points I have discussed in the three portions of
this opinion, I must believe that the first is the crucial one: the
Court's reluctance, in an original action, to reconsider our
initial denial of a motion to dismiss for lack of standing. I shall
consider that to be an essential part of the holding of the case. I
respectfully dissent.
JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE SCALIA
join, dissenting.
Even if I believed that Wyoming had standing to challenge the
Oklahoma statute (which, for the reasons given by Jus-
474
TICE SCALIA, I do not), I would decline to exercise the Court's
original jurisdiction here.
The Constitution provides that "[i]n all Cases ... in which a
State shall be a Party, the supreme Court shall have original
Jurisdiction." U. S. Const., Art. III, § 2, cl. 2. Congress, in
turn, has provided that "[t]he Supreme Court shall have original
and exclusive jurisdiction of all controversies between two or more
States." 28 U. S. C. § 1251(a). Given these provisions, one might
expect-assuming the existence of a "case" or "controversy" -that we
would be required to exercise our original jurisdiction here, for a
court having jurisdiction generally must exercise it. "We have no
more right to decline the exercise of jurisdiction which is given,
than to usurp that which is not given." Co
hens v.
Virginia, 6 Wheat. 264, 404 (1821) (Marshall, C. J.). As the
Court observes, however,
ante, at 450-451, we have exercised
discretion in declining to hear cases that fall within the literal
terms of our original jurisdiction. See,
e. g., United
States v.
Nevada, 412 U. S. 534, 538 (1973)
(per curiam) (controversy between the United States and
individual States);
Ohio v.
Wyandotte Chemicals
Corp., 401 U. S.
493, 497-499 (1971) (action by a State against the citizens of
other States). We exercise this discretion even with respect to
controversies between two or more States, which fall within our
original
and exclusive jurisdiction. * See,
e. g.,
Texas v.
New Mexico,
*JUSTICE STEVENS has stated that the Court's explanations for
declining to exercise its
nonexclusive original jurisdiction
are "inapplicable" where, as here, its original jurisdiction is
exclusive under 28 U. S. C. § 1251(a).
California v.
West Virginia, 454 U. S. 1027,
1027-1028 (1981) (opinion dissenting from denial of motion to file
bill of complaint). Similarly, commentators have suggested that the
Court's statement that" 'the congressional grant of exclusive
jurisdiction under § 1251(a) ... requir[es] resort to our
obligatory jurisdiction only in appropriate cases'" is "an
oxymoron." P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart
and Wechsler's The Federal Courts and the Federal System 344 (3d
ed. 1988) (quoting
Maryland v.
Louisiana, 451 U. S. 725, 739 (1981)
(internal quotation marks omitted)). See also Shapiro, Jurisdiction
and Discretion, 60
475
462 U. S. 554,
570 (1983);
California v.
Texas, 457 U. S. 164, 168 (1982)
(per curiam); Maryland v.
Louisiana, 451 U. S. 725, 739
(1981);
Arizona v.
New Mexico, 425 U. S. 794, 796798
(1976)
(per curiam). I believe that the Court's decision to
accept jurisdiction over this case is a misguided exercise of that
discretion.
"It has long been this Court's philosophy that 'our original
jurisdiction should be invoked sparingly.'"
Illinois v.
City of Milwaukee, 406 U. S. 91, 93 (1972)
(quoting
Utah v.
United States, 394 U. S. 89, 95 (1969)).
The sound reasons for this approach have been set forth on many
occasions, see,
e. g.,
Ohio v.
Wyandotte Chemicals
Corp., supra, at 498;
Maryland v.
Louisiana,
supra, at 761-763 (REHNQUIST, J., dissenting), and I need not
repeat them here. As Chief Justice Fuller aptly observed almost a
century ago, our original jurisdiction "is of so delicate and grave
a character that it was not contemplated that it would be exercised
save when the necessity was absolute."
Louisiana v.
Texas, 176 U. S.
1, 15 (1900). In determining which cases merit the exercise of
original jurisdiction, the Court typically has focused on two
considerations: the nature of the claims involved and the
availability of alternative forums where they can be addressed.
See,
e. g., Illinois v.
City of Milwaukee, supra, at
93;
Massachusetts v.
Missouri, 308 U. S. 1, 18-19
(1939).
In my view, both factors cut strongly against exercising
original jurisdiction here. Wyoming claims to be injured as
follows: The Oklahoma statute decreases coal sales by Wyoming
mining companies to Oklahoma buyers, which supposedly decreases the
amount of coal those companies extract in
N. Y. U. L. Rev. 543, 561 (1985) (calling "unanswerable"
criticism of the Court's discretionary approach to cases within its
exclusive original jurisdiction).
As noted in text, the Court has held otherwise and those
precedents have not been challenged here. The exercise of
discretion is probably inevitable as long as the Court's approach
to standing is as relaxed as it is today.
476
Wyoming, which in turn supposedly decreases the tax revenues
Wyoming collects from the companies when they extract the coal.
Plainly, the primary dispute here is
not between the States
of Wyoming and Oklahoma, but between the private Wyoming mining
companies and the State of Oklahoma, whose statute reduced the
companies' sales to Oklahoma utilities. It is true, as the Court
notes,
ante, at 451, that Oklahoma passed the statute in its
sovereign capacity and that Wyoming collects taxes in its sovereign
capacity. That States act qua States is certainly very relevant in
assessing the "seriousness and dignity" of a claim. See
Maryland v.
Louisiana, supra, at 764-766 (REHNQUIST,
J., dissenting). But it is also critical to examine the extent to
which the sovereigns actually have clashed. Cf.
Arizona v.
New Mexico, supra, at 797-798 ("In denying the State of
Arizona leave to file, we are not unmindful that the legal
incidence of [the challenged action by New Mexico] is upon the
utilities"). In my view, an entirely derivative injury of the type
alleged by Wyoming here-even if it met minimal standing
requirements-would not justify the exercise of discretionary
original jurisdiction. Additionally, of course, Wyoming has
advanced no reason why the affected mining companies (hardly
bashful litigants) did not or could not themselves challenge the
Oklahoma statute in another, more convenient, forum. The lower
federal courts and the state courts are readily available as
appropriate forums "in which the
issues tendered here may be
litigated."
Id., at 797 (emphasis in original).
The implications of the Court's novel theory that taxcollection
injury alone justifies exercise of original jurisdiction are, in my
view, both sweeping and troubling. An economic burden imposed by
one State on another State's taxpayers will frequently affect the
other State's fisc. (That will virtually always be the case, for
example, with respect to income taxes; if State A takes actions
that reduce the income of the taxpayers of State B, State B will
collect less
477
income-tax revenue.) Under today's opinion, a State that can
show
any loss in tax revenue-even a
de minimis loss,
see
ante, at 452-453, and n. ll-that can be traced (albeit
loosely) to the action of another State can apparently proceed
directly to this Court to challenge that action. Perhaps the Court
is not concerned about that possibility because of its "discretion"
in managing its original docket. But, having extended the original
jurisdiction to one State's claim based on its tax-collector
status, the Court cannot, in the exercise of discretion, refuse to
entertain future disputes based on the same theory. That would be
the exercise not of discretion, but of caprice.
I respectfully dissent.
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