Atlanta Gas Light Co. v. U.S. Dept. of Energy, Nos. 79-2568

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore TUTTLE, HATCHETT and ANDERSON; TUTTLE
Citation666 F.2d 1359
PartiesATLANTA GAS LIGHT COMPANY, Petitioner, v. U. S. DEPARTMENT OF ENERGY, James B. Edwards, Secretary of Energy, Economic Regulatory Administration, Hazel Rollins, Administrator, Respondent. ENTEX, INC., Petitioner, v. U. S. DEPARTMENT OF ENERGY, ECONOMIC REGULATORY ADMINISTRATION, Respondent. LACLEDE GAS COMPANY, Petitioner, v. U. S. DEPARTMENT OF ENERGY, James B. Edwards, Secretary of Energy, Economic Regulatory Administration, Hazel Rollins, Administrator, Respondent. AMERICAN GAS ASSOCIATION, Petitioner, v. U. S. DEPARTMENT OF ENERGY, James B. Edwards, Secretary of Energy, Economic Regulatory Administration, Hazel Rollins, Administrator, Respondent.
Docket Number79-3237,80-1573,Nos. 79-2568,80-7491 and 80-7528
Decision Date01 February 1982

Page 1359

666 F.2d 1359
ATLANTA GAS LIGHT COMPANY, Petitioner,
v.
U. S. DEPARTMENT OF ENERGY, James B. Edwards, Secretary of
Energy, Economic Regulatory Administration, Hazel
Rollins, Administrator, Respondent.
ENTEX, INC., Petitioner,
v.
U. S. DEPARTMENT OF ENERGY, ECONOMIC REGULATORY
ADMINISTRATION, Respondent.
LACLEDE GAS COMPANY, Petitioner,
v.
U. S. DEPARTMENT OF ENERGY, James B. Edwards, Secretary of
Energy, Economic Regulatory Administration, Hazel
Rollins, Administrator, Respondent.
AMERICAN GAS ASSOCIATION, Petitioner,
v.
U. S. DEPARTMENT OF ENERGY, James B. Edwards, Secretary of
Energy, Economic Regulatory Administration, Hazel
Rollins, Administrator, Respondent.
Nos. 79-2568, 79-3237, 80-1573, 80-7491 and 80-7528.
United States Court of Appeals,
Eleventh Circuit.
Feb. 1, 1982.

Page 1361

Morgan, Lewis & Brockius, John E. Holtzinger, Jr., Karol Lyn Newman, Irvin N. Shapell, Washington, D. C., for Atlanta Gas Light Co.

Patrick J. Keeley, Michael J. Manning, John M. Simpson, Fulbright & Jaworski, Washington, D. C., for Entex, Inc.

John A. Myler, Asst. Gen. Counsel, Arlington, Va., for American Gas Assn.

Bryan, Cave, McPheeters & McRoberts, James J. Murphy, Washington, D. C., for Laclede Gas Assn.

John L. Gurney, Paul C. Wallach, Marya Rowan, Lynn R. Coleman, Russell L. Weaver, Thomas H. Kemp, Anne S. Almy, Peter M. Shane, Dept. of Energy, Margaret A. Weeks, Kathryn A. Oberly, Bingham Kennedy, Dept. of Justice, Washington, D. C., for respondent.

Petitions for Review of Orders of the U. S. Department of Energy, the Economic Regulatory Administration.

Before TUTTLE, HATCHETT and ANDERSON, Circuit Judges:

TUTTLE, Circuit Judge:

This case arises out of a pre-enforcement challenge to the constitutionality of several provisions of the Power Plant and Industrial Fuel Use Act of 1978 (Fuel Use Act or Act), 42 U.S.C.A. § 8301, et seq. (1981), as amended by Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, 95 Stat. 617 (1981). Additionally the petitioners attack the constitutionality of the regulations promulgated by the Secretary of Energy pursuant to the Fuel Use Act. In this appeal we consider whether the statute and its accompanying regulations violate the Due Process Clause of the Fifth Amendment, and whether Congress, in passing the Act, exceeded the limits of its constitutional authority as embodied in both the Commerce Clause and the Tenth Amendment. We conclude that in a pre-enforcement context such as the one presented here, the Act and its regulations cannot be held to be unconstitutional.

I.

A.

On November 9, 1978, the President signed into law five bills in a comprehensive attempt to improve our nation's energy situation.

Page 1362

The Fuel Use Act, the subject of controversy in the present case, is one of the acts in this legislative package. 1

The purposes of the Fuel Use Act are, inter alia, to conserve natural gas for industrial uses for which there are no alternative fuels; to insure that adequate supplies of natural gas are available for certain essential agricultural uses; and, to reduce the vulnerability of the United States to energy supply interruptions. 42 U.S.C.A. § 8301(b) (1981). The predominant means of effectuating these goals are the Act's prohibitions on the use of natural gas or petroleum as a primary energy source in any new electric powerplant or major fuel burning installations, and the Act's requirement that existing powerplants convert to coal or other alternative fuels by January 1, 1990. 42 U.S.C.A. §§ 8311, 8341 (1981). In addition, the Act restricts the use of natural gas in outdoor lighting. 42 U.S.C.A. § 8372 (1981). This latter provision regulating outdoor lighting is the focus of the present appeal.

Section 402 of the Act instructs the Secretary of the Department of Energy to issue a rule prohibiting local gas distribution companies both from providing natural gas for use in outdoor lighting, 42 U.S.C.A. § 8372(b)(1), and from installing any outdoor lighting fixtures using natural gas. 42 U.S.C.A. § 8372(a). 2 Violators of Section 402(b)(1) are subject to a fine not to exceed $500 for each outdoor lighting fixture involved. 42 U.S.C.A. § 8433 (1981).

The Secretary of Energy is charged with primary responsibility for administering and enforcing the Act, and is authorized to promulgate regulations to that end. 42 U.S.C.A. §§ 8372(d), 8431 (1981). In addition, the Secretary may delegate to the appropriate regulatory authority of the states all authorities and responsibilities regarding outdoor lighting under Section 402. 3 Persons aggrieved by any final rule or order promulgated by the Secretary under the Act are granted a statutory right to file a petition for review in the United States Court of Appeals for the circuit wherein the person resides or has his or her principal place of business. 42 U.S.C.A. § 8412(c) (1981). 4

Page 1363

The regulations dealing with outdoor gaslighting were published on May 10, 1979, see 44 Fed.Reg. 27606 (1979), and amended on May 23, 1980. 45 Fed.Reg. 35206 (1980), later codified at 10 CFR §§ 516.10-.47 (1981). In these regulations, the Secretary issued a rule prohibiting installation of gaslights and distribution of gas for use in such lights in accordance with the explicit mandate of Section 402. In addition, the Secretary delegated his authorities and responsibilities to the appropriate state regulatory authority as permitted by the Act. Finally, the Secretary promulgated regulations authorizing the Department of Energy to rescind this delegation if it is found that a state has failed to comply with the Act or the regulations. See 10 CFR 516.30-.32 (1981).

In August of 1981 Congress passed the Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, 95 Stat. 617 (1981). Section 1024 of this Act amends the Fuel Use Act by eliminating the prohibition on distribution of natural gas to residential users for outdoor lighting purposes in fixtures that were in use before November 9, 1978. These amendments also require local gas distribution companies to inform their customers about the amount and cost of natural gas used in outdoor lighting, and to report to the Secretary on their methods of dispersing such information. 5 Implementing regulations for these amendments have not yet been published.

B.

On July 2, 1979, Atlanta Gas Company (Atlanta Gas) petitioned this Court for review of the Fuel Use Act regulations published in May, 1979. Petitioners Laclede Gas Company (Laclede) and the American Gas Association (A.G.A.) filed briefs amicus curiae. On January 24, 1980, this Court stayed further proceedings at the request of the government pending further rulemaking by the Secretary. After the Secretary published the amended regulations in May of 1980, Atlanta Gas filed and was granted a motion to amend its original petition to incorporate the amendments to the regulations. At that time this Court also consolidated various petitions for review filed in other circuit courts of appeals by Laclede, A.G.A., and Entex, Inc. 6 Because the petitioners have appealed directly to this Court from the rules issued by the Secretary of Energy, there is no record of findings or conclusions of law established by a lower tribunal.

II.

Petitioners initially raise a facial attack on Section 402 of the statute and the accompanying regulations, on the ground that the prohibitions contained therein exceed the scope of congressional power under the Commerce Clause of the Federal Constitution. 7 They make three objections to the constitutionality of the Act under the Commerce Clause. First, petitioners note that

Page 1364

regulation of the distribution of natural gas has been a subject of purely local concern historically left within the purview of state or municipal regulatory authority. In support, they rely on several relatively old cases in which the United States Supreme Court declared that in the area of natural gas distribution, interstate commerce ends when the gas passes into the local mains of private distribution companies. See, e.g., East Ohio Gas Co. v. Tax Comm'n, 283 U.S. 465, 470-72, 51 S.Ct. 499, 500-01, 75 L.Ed. 1171 (1931); Public Utilities Comm'n v. Landon, 249 U.S. 236, 245, 39 S.Ct. 268, 269, 63 L.Ed. 577 (1919). Second, the petitioners argue that Congress had no rational basis for finding that the activity of distributing gas for outdoor lighting purposes affects interstate commerce. Finally, they assert that the means chosen by Congress under the Fuel Use Act is not reasonably adapted to the ends set out in the first section of the Act, namely, to conserve natural gas and to protect industries whose only viable source of power is natural gas.

We agree with the petitioners' framing of the relevant issues in a constitutional attack upon federal legislation based upon the Commerce Clause. The constitutionally prescribed inquiry in a Commerce Clause challenge involving traditionally local activities necessitates at the outset an examination of the effects of the regulated activity on interstate commerce. United States v. Darby, 312 U.S. 100, 121, 61 S.Ct. 451, 460, 85 L.Ed. 609 (1941). If such effects are wholly lacking, then the federal law in question must be held unconstitutional. Additionally the Court must assess the rationality of the congressional judgment in passing the Act. This involves an inquiry into: (1) whether there is a rational basis for Congress' determination that interstate commerce is indeed affected by the regulated activity; and, (2) whether the means chosen are reasonably adapted to achieve the intended legitimate goal. Hodel v. Virginia Surface Min. & Rec. Ass'n, --- U.S. ----, 101 S.Ct. 2352, 2360, 69 L.Ed.2d 1 (1981).

Page 1365

Nevertheless, we differ with the petitioners on the appropriate result that follows from this inquiry. The mere fact that an admittedly local or intrastate activity such as the distribution of natural gas to local customers is affected by federal...

To continue reading

Request your trial
35 practice notes
  • U.S. v. Bond, No. 08-2677.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 17, 2009
    ...703-04 (7th Cir.1999), cert. denied, 528 U.S. 1116, 120 S.Ct. 934, 145 L.Ed.2d 813 (2000); Atlanta Gas Light Co. v. U.S. Dep't of Energy, 666 F.2d 1359, 1368 n. 16 (11th Cir.1982).7 Five have not. See United States v. Hacker, 565 F.3d 522, 525-527 (8th Cir.2009); Oregon v. Legal Servs. Corp......
  • Hardwick v. Bowers, No. 83-8378
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 21, 1985
    ...of the interest, he or she is best suited to challenge a law. Atlanta Gas Light Company v. United States Department of Energy, 666 F.2d 1359, 1364 n. 7 (11th Cir.), cert. denied, 459 U.S. 836, 103 S.Ct. 81, 74 L.Ed.2d 78 The past arrest of Hardwick, combined with the continuing resolve on t......
  • Bond v. United States, No. 09–1227.
    • United States
    • United States Supreme Court
    • June 16, 2011
    ...v. Sullivan, 767 F.Supp. 1314 (W.D.N.C.1989), aff'd 929 F.2d 693 (C.A.4 1991) ; Atlanta Gas Light Co. v. United States Dept. of Energy, 666 F.2d 1359, 1368, n. 16 (C.A.11 1982) ; see also United States v. Johnson, 632 F.3d 912, 918–921 (C.A.5 2011) (reserving issue); Lomont v. O'Neill, 285 ......
  • U.S. v. Johnson, No. 09–60823.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 4, 2011
    ...by District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008); Atlanta Gas Light Co. v. U.S. Dep't of Energy, 666 F.2d 1359, 1368 (11th Cir.1982). Of these, Shenandoah and Hacker both addressed the issue in the context of interpreting SORNA, while the remaining cas......
  • Request a trial to view additional results
35 cases
  • U.S. v. Bond, No. 08-2677.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 17, 2009
    ...703-04 (7th Cir.1999), cert. denied, 528 U.S. 1116, 120 S.Ct. 934, 145 L.Ed.2d 813 (2000); Atlanta Gas Light Co. v. U.S. Dep't of Energy, 666 F.2d 1359, 1368 n. 16 (11th Cir.1982).7 Five have not. See United States v. Hacker, 565 F.3d 522, 525-527 (8th Cir.2009); Oregon v. Legal Servs. Corp......
  • Hardwick v. Bowers, No. 83-8378
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 21, 1985
    ...of the interest, he or she is best suited to challenge a law. Atlanta Gas Light Company v. United States Department of Energy, 666 F.2d 1359, 1364 n. 7 (11th Cir.), cert. denied, 459 U.S. 836, 103 S.Ct. 81, 74 L.Ed.2d 78 The past arrest of Hardwick, combined with the continuing resolve on t......
  • Bond v. United States, No. 09–1227.
    • United States
    • United States Supreme Court
    • June 16, 2011
    ...v. Sullivan, 767 F.Supp. 1314 (W.D.N.C.1989), aff'd 929 F.2d 693 (C.A.4 1991) ; Atlanta Gas Light Co. v. United States Dept. of Energy, 666 F.2d 1359, 1368, n. 16 (C.A.11 1982) ; see also United States v. Johnson, 632 F.3d 912, 918–921 (C.A.5 2011) (reserving issue); Lomont v. O'Neill, 285 ......
  • U.S. v. Johnson, No. 09–60823.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 4, 2011
    ...by District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008); Atlanta Gas Light Co. v. U.S. Dep't of Energy, 666 F.2d 1359, 1368 (11th Cir.1982). Of these, Shenandoah and Hacker both addressed the issue in the context of interpreting SORNA, while the remaining cas......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT