Oneok, Inc. v. Learjet, Inc. ( 2015 )

(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ONEOK, INC., ET AL. v. LEARJET, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 13–271. Argued January 12, 2015—Decided April 21, 2015
Respondents, a group of manufacturers, hospitals, and other institu-
tions that buy natural gas directly from interstate pipelines, sued pe-
titioner interstate pipelines, claiming that the pipelines had engaged
in behavior that violated state antitrust laws. In particular, re-
spondents alleged that petitioners reported false information to the
natural-gas indices on which respondents’ natural-gas contracts were
based. The indices affected not only retail natural-gas prices, but al-
so wholesale natural-gas prices.
After removing the cases to federal court, the petitioner pipelines
sought summary judgment on the ground that the Natural Gas Act
pre-empted respondents’ state-law claims. That Act gives the Feder-
al Energy Regulatory Commission (FERC) the authority to determine
whether rates charged by natural-gas companies or practices affect-
ing such rates are unreasonable. 15 U.S. C. §717d(a). But it also
limits FERC’s jurisdiction to the transportation of natural gas in in-
terstate commerce, the sale in interstate commerce of natural gas for
resale, and natural-gas companies engaged in such transportation or
sale. §717(b). The Act leaves regulation of other portions of the in-
dustry—such as retail sales—to the States. Ibid.
The District Court granted petitioners’ motion for summary judg-
ment, reasoning that because petitioners’ challenged practices direct-
ly affected wholesale as well as retail prices, they were pre-empted by
the Act. The Ninth Circuit reversed. While acknowledging that the
pipelines’ index manipulation increased wholesale prices as well as
retail prices, it held that the state-law claims were not pre-empted
because they were aimed at obtaining damages only for excessively
high retail prices.
Held: Respondents’ state-law antitrust claims are not within the field of
2 ONEOK, INC. v. LEARJET, INC.
Syllabus
matters pre-empted by the Natural Gas Act. Pp. 10–16.
(a) The Act “was drawn with meticulous regard for the continued
exercise of state power.” Panhandle Eastern Pipe Line Co. v. Public
Serv. Comm’n of Ind., 332 U.S. 507, 517–518. Where, as here, a
practice affects nonjurisdictional as well as jurisdictional sales, pre-
emption can be found only where a detailed examination convincingly
demonstrates that a matter falls within the pre-empted field as de-
fined by this Court’s precedents. Those precedents emphasize the
importance of considering the target at which the state-law claims
aim. See, e.g., Northern Natural Gas Co. v. State Corporation
Comm’n of Kan., 372 U.S. 84; Northwest Central Pipeline Corp. v.
State Corporation Comm’n of Kan., 489 U.S. 493. Here, respondents’
claims are aimed at practices affecting retail prices, a matter “firmly
on the States’ side of [the] dividing line.” Id., at 514.
Schneidewind v. ANR Pipeline Co., 485 U.S. 293, is not to the con-
trary. That opinion explains that the Act does not pre-empt “tradi-
tional” state regulation, such as blue sky laws. Id., at 308, n. 11. An-
titrust laws, like blue sky laws, are not aimed at natural-gas
companies in particular, but rather all businesses in the market-
place. The broad applicability of state antitrust laws supports a find-
ing of no pre-emption here.
So, too, does the fact that States have long provided “common-law
and statutory remedies against monopolies and unfair business prac-
tices,” California v. ARC America Corp., 490 U.S. 93, 101. As noted
earlier, the Act circumscribes FERC’s powers and preserves tradi-
tional areas of state authority. §717(b). Pp. 10–14.
(b) Neither Mississippi Power & Light Co. v. Mississippi ex rel.
Moore, 487 U.S. 354, nor FPC v. Louisiana Power & Light Co., 406
U.S. 621, supports petitioners’ position. Mississippi Power is best
read as a conflict pre-emption case, not a field pre-emption case. In
any event, the state inquiry in Mississippi Power was pre-empted be-
cause it was directed at jurisdictional sales in a way that respond-
ents’ state antitrust suits are not. Louisiana Power is also a conflict
pre-emption case, and thus does not significantly help petitioners’
field pre-emption argument. Pp. 14–15.
(c) Because the parties have not argued conflict pre-emption, ques-
tions involving conflicts between state antitrust proceedings and the
federal rate-setting process are left for the lower courts to resolve in
the first instance. Pp. 15–16.
(d) While petitioners and the Government argue that this Court
should defer to FERC’s determination that field pre-emption bars re-
spondents’ claims, they fail to point to a specific FERC determination
that state antitrust claims fall within the field pre-empted by the
Natural Gas Act. Thus, this Court need not consider what legal ef-
Cite as: 575 U. S. ____ (2015) 3
Syllabus
fect such a determination might have. P. 16.
715 F.3d 716, affirmed.
BREYER, J., delivered the opinion of the Court, in which KENNEDY,
GINSBURG, ALITO, SOTOMAYOR, and KAGAN, JJ., joined, and in which
THOMAS, J., joined as to all but Part I–A. THOMAS, J., filed an opinion
concurring in part and concurring in the judgment. SCALIA, J., filed a
dissenting opinion, in which ROBERTS, C. J., joined.
Cite as: 575 U. S. ____ (2015) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–271
_________________
ONEOK, INC., ET AL. PETITIONERS v.
LEARJET, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 21, 2015]
JUSTICE BREYER delivered the opinion of the Court.
In this case, a group of manufacturers, hospitals, and
other institutions that buy natural gas directly from inter­
state pipelines sued the pipelines, claiming that they
engaged in behavior that violated state antitrust laws.
The pipelines’ behavior affected both federally regulated
wholesale natural-gas prices and nonfederally regulated
retail natural-gas prices. The question is whether the
federal Natural Gas Act pre-empts these lawsuits. We
have said that, in passing the Act, “Congress occupied the
field of matters relating to wholesale sales and transporta­
tion of natural gas in interstate commerce.” Schneidewind
v. ANR Pipeline Co., 485 U.S. 293, 305 (1988). Neverthe­
less, for the reasons given below, we conclude that the Act
does not pre-empt the state-law antitrust suits at issue
here.
I
A
The Supremacy Clause provides that “the Laws of the
United States” (as well as treaties and the Constitution
itself ) “shall be the supreme Law of the Land . . . any
2 ONEOK, INC. v. LEARJET, INC.
Opinion of the Court
Thing in the Constitution or Laws of any state to the
Contrary notwithstanding.” Art. VI, cl. 2. Congress may
consequently pre-empt, i.e., invalidate, a state law through
federal legislation. It may do so through express language
in a statute. But even where, as here, a statute does not
refer expressly to pre-emption, Congress may implicitly
pre-empt a state law, rule, or other state action. See
Sprietsma v. Mercury Marine, 537 U.S. 51, 64 (2002).
It may do so either through “field” pre-emption or “con­
flict” pre-emption. As to the former, Congress may have
intended “to foreclose any state regulation in the area,”
irrespective of whether state law is consistent or incon­
sistent with “federal standards.” Arizona v. United States,
567 U. S. ___, ___ (2012) (slip op., at 10) (emphasis added).
In such situations, Congress has forbidden the State to
take action in the field that the federal statute pre-empts.
By contrast, conflict pre-emption exists where “compli­
ance with both state and federal law is impossible,” or
where “the state law ‘stands as an obstacle to the accom­
plishment and execution of the full purposes and objec­
tives of Congress.’ ” California v. ARC America Corp., 490
U.S. 93, 100, 101 (1989). In either situation, federal law
must prevail.
No one here claims that any relevant federal statute
expressly pre-empts state antitrust lawsuits. Nor have
the parties argued at any length that these state suits
conflict with federal law. Rather, the interstate pipeline
companies (petitioners here) argue that Congress implic-
itly “‘occupied the field of matters relating to wholesale sales
and transportation of natural gas in interstate com­
merce.’ ” Brief for Petitioners 18 (quoting Schneidewind,
supra, at 305 (emphasis added)). And they contend that
the state antitrust claims advanced by their direct-sales
customers (respondents here) fall within that field. The
United States, supporting the pipelines, argues similarly.
See Brief for United States as Amicus Curiae 15. Since
Cite as: 575 U. S. ____ (2015) 3
Opinion of the Court
the parties have argued this case almost exclusively in
terms of field pre-emption, we consider only the field pre­
emption question.
B
1
Federal regulation of the natural-gas industry began at
a time when the industry was divided into three segments.
See 1 Regulation of the Natural Gas Industry §1.01 (W.
Mogel ed. 2008) (hereinafter Mogel); General Motors Corp.
v. Tracy, 519 U.S. 278, 283 (1997). First, natural-gas
producers sunk wells in large oil and gas fields (such as
the Permian Basin in Texas and New Mexico). They
gathered the gas, brought it to transportation points, and
left it to interstate gas pipelines to transport the gas to
distant markets. Second, interstate pipelines shipped the
gas from the field to cities and towns across the Nation.
Third, local gas distributors bought the gas from the inter­
state pipelines and resold it to business and residential
customers within their localities.
Originally, the States regulated all three segments of
the industry. See 1 Mogel §1.03. But in the early 20th
century, this Court held that the Commerce Clause forbids
the States to regulate the second part of the business—i.e.,
the interstate shipment and sale of gas to local distribu­
tors for resale. See, e.g., Public Util. Comm’n of R. I. v.
Attleboro Steam & Elec. Co., 273 U.S. 83, 89–90 (1927);
Missouri ex rel. Barrett v. Kansas Natural Gas Co., 265
U.S. 298, 307–308 (1924). These holdings left a regula-
tory gap. Congress enacted the Natural Gas Act, 52 Stat.
821, to fill it. See Phillips Petroleum Co. v. Wisconsin, 347
U.S. 672, 682–684, n. 13 (1954) (citing H. R. Rep. No. 709,
75th Cong., 1st Sess., 1–2 (1937); S. Rep. No. 1162, 75th
Cong., 1st Sess., 1–2 (1937)).
The Act, in §5(a), gives rate-setting authority to the
Federal Energy Regulatory Commission (FERC, formerly
4 ONEOK, INC. v. LEARJET, INC.
Opinion of the Court
the Federal Power Commission (FPC)). That authority
allows FERC to determine whether “any rate, charge, or
classification . . . collected by any natural-gas company in
connection with any transportation or sale of natural gas,
subject to the jurisdiction of [FERC],” or “any rule, regula­
tion, practice, or contract affecting such rate, charge, or
classification is unjust, unreasonable, unduly discrimina­
tory, or preferential.” 15 U.S. C. §717d(a) (emphasis
added). As the italicized words make clear, §5(a) limits
the scope of FERC’s authority to activities “in connection
with any transportation or sale of natural gas, subject to
the jurisdiction of the Commission.” Ibid. (emphasis
added). And the Act, in §1(b), limits FERC’s “jurisdiction” to
(1) “the transportation of natural gas in interstate com­
merce,” (2) “the sale in interstate commerce of natural gas
for resale,” and (3) “natural-gas companies engaged in
such transportation or sale.” §717(b). The Act leaves
regulation of other portions of the industry—such as pro­
duction, local distribution facilities, and direct sales—to
the States. See Northwest Central Pipeline Corp. v. State
Corporation Comm’n of Kan., 489 U.S. 493, 507 (1989)
(Section 1(b) of the Act “expressly” provides that “States
retain jurisdiction over intrastate transportation, local
distribution, and distribution facilities, and over ‘the
production or gathering of natural gas’ ”).
To simplify our discussion, we shall describe the firms
that engage in interstate transportation as “jurisdictional
sellers” or “interstate pipelines” (though various brokers
and others may also fall within the Act’s jurisdictional
scope). Similarly, we shall refer to the sales over which
FERC has jurisdiction as “jurisdictional sales” or “whole­
sale sales.”
2
Until the 1970’s, natural-gas regulation roughly tracked
the industry model we described above. Interstate pipe­
Cite as: 575 U. S. ____ (2015) 5
Opinion of the Court
lines would typically buy gas from field producers and
resell it to local distribution companies for resale. See
Tracy, supra, at 283. FERC (or FPC), acting under the
authority of the Natural Gas Act, would set interstate
pipeline wholesale rates using classical “cost-of-service”
ratemaking methods. See Public Serv. Comm’n of N. Y. v.
Mid-Louisiana Gas Co., 463 U.S. 319, 328 (1983). That
is, FERC would determine a pipeline’s revenue require­
ment by calculating the costs of providing its services,
including operating and maintenance expenses, deprecia­
tion expenses, taxes, and a reasonable profit. See FERC,
Cost-of-Service Rates Manual 6 (June 1999). FERC would
then set wholesale rates at a level designed to meet the
pipeline’s revenue requirement.
Deregulation of the natural-gas industry, however,
brought about changes in FERC’s approach. In the 1950’s,
this Court had held that the Natural Gas Act required
regulation of prices at the interstate pipelines’ buying
end—i.e., the prices at which field producers sold natural
gas to interstate pipelines. Phillips Petroleum Co., supra,
at 682, 685. By the 1970’s, many in Congress thought that
such efforts to regulate field prices had jeopardized
natural-gas supplies in an industry already dependent “on
the caprice of nature.” FPC v. Hope Natural Gas Co., 320
U.S. 591, 630 (1944) (opinion of Jackson, J.); see id., at
629 (recognizing that “the wealth of Midas and the wit of
man cannot produce . . . a natural gas field”). Hoping to
avoid future shortages, Congress enacted forms of field
price deregulation designed to rely upon competition,
rather than regulation, to keep field prices low. See, e.g.,
Natural Gas Policy Act of 1978, 92 Stat. 3409, codified in
part at 15 U.S. C. §3301 et seq. (phasing out regulation of
wellhead prices charged by producers of natural gas);
Natural Gas Wellhead Decontrol Act of 1989, 103 Stat.
157 (removing price controls on wellhead sales as of Janu­
ary 1993).
6 ONEOK, INC. v. LEARJET, INC.
Opinion of the Court
FERC promulgated new regulations designed to further
this process of deregulation. See, e.g., Regulation of Natu­
ral Gas Pipelines after Partial Wellhead Decontrol, 50
Fed. Reg. 42408 (1985) (allowing “open access” to pipelines
so that consumers could pay to ship their own gas). Most
important here, FERC adopted an approach that relied on
the competitive marketplace, rather than classical regula­
tory rate-setting, as the main mechanism for keeping
wholesale natural-gas rates at a reasonable level. Order
No. 636, issued in 1992, allowed FERC to issue blanket
certificates that permitted jurisdictional sellers (typically
interstate pipelines) to charge market-based rates for gas,
provided that FERC had first determined that the sellers
lacked market power. See 57 Fed. Reg. 57957–57958
(1992); id., at 13270.
After the issuance of this order, FERC’s oversight of the
natural-gas market largely consisted of (1) ex ante exami­
nations of jurisdictional sellers’ market power, and (2) the
availability of a complaint process under §717d(a). See
Brief for United States as Amicus Curiae 4. The new
system also led many large gas consumers—such as indus­
trial and commercial users—to buy their own gas directly
from gas producers, and to arrange (and often pay sepa­
rately) for transportation from the field to the place of
consumption. See Tracy, 519 U.S., at 284. Insofar as
interstate pipelines sold gas to such consumers, they sold
it for direct consumption rather than resale.
3
The free-market system for setting interstate pipeline
rates turned out to be less than perfect. Interstate pipe­
lines, distributing companies, and many of the customers
who bought directly from the pipelines found that they
had to rely on privately published price indices to deter­
mine appropriate prices for their natural-gas contracts.
These indices listed the prices at which natural gas was
Cite as: 575 U. S. ____ (2015) 7
Opinion of the Court
being sold in different (presumably competitive) markets
across the country. The information on which these in-
dices were based was voluntarily reported by natural-gas
traders.
In 2003, FERC found that the indices were inaccurate,
in part because much of the information that natural-gas
traders reported had been false. See FERC, Final Report
on Price Manipulation in Western Markets (Mar. 2003),
App. 88–89. FERC found that false reporting had involved
“inflating the volume of trades, omitting trades, and ad­
justing the price of trades.” Id., at 88. That is, sometimes
those who reported information simply fabricated it.
Other times, the information reported reflected “wash
trades,” i.e., “prearranged pair[s] of trades of the same
good between the same parties, involving no economic risk
and no net change in beneficial ownership.” Id., at 215.
FERC concluded that these “efforts to manipulate price
indices compiled by trade publications” had helped raise
“to extraordinary levels” the prices of both jurisdictional
sales (that is, interstate pipeline sales for resale) and
nonjurisdictional direct sales to ultimate consumers. Id.,
at 86, 85.
After issuing its final report on price manipulation in
western markets, FERC issued a Code of Conduct. That
code amended all blanket certificates to prohibit jurisdic­
tional sellers “from engaging in actions without a legiti­
mate business purpose that manipulate or attempt to
manipulate market conditions, including wash trades and
collusion.” 68 Fed. Reg. 66324 (2003). The code also
required jurisdictional companies, when they provided
information to natural-gas index publishers, to “provide
accurate and factual information, and not knowingly
submit false or misleading information or omit material
information to any such publisher.” Id., at 66337. At the
same time, FERC issued a policy statement setting forth
“minimum standards for creation and publication of any
8 ONEOK, INC. v. LEARJET, INC.
Opinion of the Court
energy price index,” and “for reporting transaction data to
index developers.” Price Discovery in Natural Gas and
Elec. Markets, 104 FERC ¶61,121, pp. 61,407, 61,408
(2003). Finally, FERC, after finding that certain jurisdic­
tional sellers had “engaged in wash trading . . . that re­
sulted in the manipulation of [natural-gas] prices,” termi­
nated those sellers’ blanket marketing certificates. Enron
Power Marketing, Inc., 103 FERC ¶61,343, p. 62,303
(2003).
Congress also took steps to address these problems. In
particular, it passed the Energy Policy Act of 2005, 119
Stat. 594, which gives FERC the authority to issue rules
and regulations to prevent “any manipulative or deceptive
device or contrivance” by “any entity . . . in connection
with the purchase or sale of natural gas or the purchase or
sale of transportation services subject to the jurisdiction
of ” FERC, 15 U.S. C. §717c–1.
C
We now turn to the cases before us. Respondents, as we
have said, bought large quantities of natural gas directly
from interstate pipelines for their own consumption. They
believe that they overpaid in these transactions due to the
interstate pipelines’ manipulation of the natural-gas
indices. Based on this belief, they filed state-law antitrust
suits against petitioners in state and federal courts. See
App. 244–246 (alleging violations of Wis. Stat. §§133.03,
133.14, 133.18); see also App. 430–433 (same); id., at 519–
521 (same); id., at 362–364 (alleging violations of Kansas
Restraint of Trade Act, Kan. Stat. Ann. §50–101 et seq.);
App. 417–419 (alleging violations of Missouri Antitrust
Law, Mo. Rev. Stat. §§416.011–416.161). The pipelines
removed all the state cases to federal court, where they
were consolidated and sent for pretrial proceedings to the
Federal District Court for the District of Nevada. See 28
U.S. C. §1407.
Cite as: 575 U. S. ____ (2015) 9
Opinion of the Court
The pipelines then moved for summary judgment on the
ground that the Natural Gas Act pre-empted respondents’
state-law antitrust claims. The District Court granted
their motion. It concluded that the pipelines were “juris­
dictional sellers,” i.e., “natural gas companies engaged in”
the “transportation of natural gas in interstate commerce.”
Order in No. 03–cv–1431 (D Nev., July 18, 2011), pp. 4, 11.
And it held that respondents’ claims, which were “aimed
at” these sellers’ “alleged practices of false price reporting,
wash trades, and anticompetitive collusive behavior” were
pre-empted because “such practices,” not only affected
nonjurisdictional direct-sale prices but also “directly af­
fect[ed]” jurisdictional (i.e., wholesale) rates. Id., at 36–37.
The Ninth Circuit reversed. It emphasized that the
price-manipulation of which respondents complained
affected not only jurisdictional (i.e., wholesale) sales, but
also nonjurisdictional (i.e., retail) sales. The court con­
strued the Natural Gas Act’s pre-emptive scope narrowly
in light of Congress’ intent—manifested in §1(b) of the
Act—to preserve for the States the authority to regulate
nonjurisdictional sales. And it held that the Act did not
pre-empt state-law claims aimed at obtaining damages for
excessively high retail natural-gas prices stemming from
interstate pipelines’ price manipulation, even if the ma­
nipulation raised wholesale rates as well. See In re West-
ern States Wholesale Natural Gas Antitrust Litigation, 715
F.3d 716, 729–736 (2013).
The pipelines sought certiorari. They asked us to re­
solve confusion in the lower courts as to whether the
Natural Gas Act pre-empts retail customers’ state anti­
trust law challenges to practices that also affect wholesale
rates. Compare id., at 729–736, with Leggett v. Duke
Energy Corp., 308 S.W.3d 843 (Tenn. 2010). We granted
the petition.
10 ONEOK, INC. v. LEARJET, INC.
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II
Petitioners, supported by the United States, argue that
their customers’ state antitrust lawsuits are within the
field that the Natural Gas Act pre-empts. See Brief for
Petitioners 18 (citing Schneidewind, 485 U.S., at 305);
Brief for United States as Amicus Curiae 13 (same). They
point out that respondents’ antitrust claims target anti­
competitive activities that affected wholesale (as well as
retail) rates. See Brief for Petitioners 2. They add that
the Natural Gas Act expressly grants FERC authority to
keep wholesale rates at reasonable levels. See ibid. (citing
15 U.S. C. §§717(b), 717d(a)). In exercising this authority,
FERC has prohibited the very kind of anticompetitive
conduct that the state actions attack. See Part I–B–3,
supra. And, petitioners contend, letting these actions
proceed will permit state antitrust courts to reach conclu­
sions about that conduct that differ from those that FERC
might reach or has already reached. Accordingly, peti­
tioners argue, respondents’ state-law antitrust suits fall
within the pre-empted field.
A
Petitioners’ arguments are forceful, but we cannot ac­
cept their conclusion. As we have repeatedly stressed, the
Natural Gas Act “was drawn with meticulous regard for
the continued exercise of state power, not to handicap or
dilute it in any way.” Panhandle Eastern Pipe Line Co. v.
Public Serv. Comm’n of Ind., 332 U.S. 507, 517–518
(1947); see also Northwest Central, 489 U.S., at 511 (the
“legislative history of the [Act] is replete with assurances
that the Act ‘takes nothing from the State [regulatory]
commissions’ ” (quoting 81 Cong. Rec. 6721 (1937))). Ac­
cordingly, where (as here) a state law can be applied to
nonjurisdictional as well as jurisdictional sales, we must
proceed cautiously, finding pre-emption only where de­
tailed examination convinces us that a matter falls within
Cite as: 575 U. S. ____ (2015) 11
Opinion of the Court
the pre-empted field as defined by our precedents. See
Panhandle Eastern, supra, at 516–518; Interstate Natural
Gas Co. v. FPC, 331 U.S. 682, 689–693 (1947).
Those precedents emphasize the importance of consider­
ing the target at which the state law aims in determining
whether that law is pre-empted. For example, in Northern
Natural Gas Co. v. State Corporation Comm’n of Kan., 372
U.S. 84 (1963), the Court said that it had “consistently
recognized” that the “significant distinction” for purposes
of pre-emption in the natural-gas context is the distinction
between “measures aimed directly at interstate purchasers
and wholesales for resale, and those aimed at” subjects left
to the States to regulate. Id., at 94 (emphasis added).
And, in Northwest Central, the Court found that the Natu­
ral Gas Act did not pre-empt a state regulation concerning
the timing of gas production from a gas field within the
State, even though the regulation might have affected the
costs of and the prices of interstate wholesale sales, i.e.,
jurisdictional sales. 489 U.S., at 514. In reaching this
conclusion, the Court explained that the state regulation
aimed primarily at “protect[ing] producers’ . . . rights—a
matter firmly on the States’ side of that dividing line.”
Ibid. The Court contrasted this state regulation with the
state orders at issue in Northern Natural, which “ ‘inva-
lidly invade[d] the federal agency’s exclusive domain’ pre-
cisely because” they were “‘unmistakably and unambiguously
directed at purchasers.’ ” Id., at 513 (quoting Northern
Natural, supra, at 92; emphasis added). Here, too, the
lawsuits are directed at practices affecting retail rates–
which are “firmly on the States’ side of that dividing line.”
Petitioners argue that Schneidewind constitutes con-
trary authority. In that case, the Court found pre-empted a
state law that required public utilities, such as interstate
pipelines crossing the State, to obtain state approval
before issuing long-term securities. 485 U.S., at 306–309.
But the Court there thought that the State’s securities
12 ONEOK, INC. v. LEARJET, INC.
Opinion of the Court
regulation was aimed directly at interstate pipelines. It
wrote that the state law was designed to keep “a natural
gas company from raising its equity levels above a certain
point” in order to keep the company’s revenue requirement
low, thereby ensuring lower wholesale rates. Id., at 307–
308. Indeed, the Court expressly said that the state law
was pre-empted because it was “directed at . . . the control
of rates and facilities of natural gas companies,” “precisely
the things over which FERC has comprehensive author-
ity.” Id., at 308 (emphasis added).
The dissent rejects the notion that the proper test for
purposes of pre-emption in the natural gas context is
whether the challenged measures are “aimed directly at
interstate purchasers and wholesales for resale” or not.
Northern Natural, supra, at 94. It argues that this ap­
proach is “unprecedented,” and that the Court’s focus
should be on “what the State seeks to regulate . . . , not
why the State seeks to regulate it.” Post, at 6 (opinion of
SCALIA, J.). But the “target” to which our cases refer must
mean more than just the physical activity that a State
regulates. After all, a single physical action, such as
reporting a price to a specialized journal, could be the
subject of many different laws—including tax laws, disclo­
sure laws, and others. To repeat the point we made above,
no one could claim that FERC’s regulation of this physical
activity for purposes of wholesale rates forecloses every
other form of state regulation that affects those rates.
Indeed, although the dissent argues that Schneidwind
created a definitive test for pre-emption in the natural gas
context that turns on whether “the matter on which the
State asserts the right to act is in any way regulated by
the Federal Act,” post, at 3 (quoting 485 U.S., at 310,
n. 13), Schneidewind could not mean this statement as an
absolute test. It goes on to explain that the Natural Gas
Act does not pre-empt “traditional” state regulation, such
as state blue sky laws (which, of course, raise wholesale—
Cite as: 575 U. S. ____ (2015) 13
Opinion of the Court
as well as retail—investment costs). Id., at 308, n. 11.
Antitrust laws, like blue sky laws, are not aimed at
natural-gas companies in particular, but rather all busi­
nesses in the marketplace. See ibid. They are far broader
in their application than, for example, the regulations at
issue in Northern Natural, which applied only to entities
buying gas from fields within the State. See 372 U.S., at
85–86, n. 1; contra, post, at 5–6 (stating that Northern
Natural concerned “background market conditions”). This
broad applicability of state antitrust law supports a find­
ing of no pre-emption here.
Petitioners and the dissent argue that there is, or
should be, a clear division between areas of state and
federal authority in natural-gas regulation. See Brief for
Petitioners 18; post, at 7. But that Platonic ideal does not
describe the natural gas regulatory world. Suppose
FERC, when setting wholesale rates in the former cost-of­
service rate-making days, had denied cost recovery for
pipelines’ failure to recycle. Would that fact deny States
the power to enact and apply recycling laws? These state
laws might well raise pipelines’ operating costs, and thus
the costs of wholesale natural gas transportation. But in
Northwest Central we said that “[t]o find field pre-emption
of [state] regulation merely because purchasers’ costs and
hence rates might be affected would be largely to nullify
. . . §1(b).” 489 U.S., at 514.
The dissent barely mentions the limitations on FERC’s
powers in §1(b), but the enumeration of FERC’s powers in
§5(a) is circumscribed by a reference back to the limita­
tions in §1(b). See post, at 1–3. As we explained above,
see Part I–B–1, supra, those limits are key to understand­
ing the careful balance between federal and state regula­
tion that Congress struck when it passed the Natural Gas
Act. That Act “was drawn with meticulous regard for the
continued exercise of state power, not to handicap or
dilute it in any way.” Panhandle Eastern, 332 U.S., at
14 ONEOK, INC. v. LEARJET, INC.
Opinion of the Court
517–518. Contra, post, at 8. States have a “long history
of ” providing “common-law and statutory remedies
against monopolies and unfair business practices.” ARC
America, 490 U.S., at 101; see also Watson v. Buck, 313
U.S. 387, 404 (1941) (noting the States’ “long-recognized
power to regulate combinations in restraint of trade”).
Respondents’ state-law antitrust suits relied on this well
established state power.
B
Petitioners point to two other cases that they believe
support their position. The first is Mississippi Power &
Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354 (1988).
There, the Court held that the Federal Power Act—which
gives FERC the authority to determine whether rates
charged by public utilities in electric energy sales are “just
and reasonable,” 16 U.S. C. §824d(a)—pre-empted a state
inquiry into the reasonableness of FERC-approved prices
for the sale of nuclear power to wholesalers of electricity
(which led to higher retail electricity rates). 487 U.S., at
373–377. Petitioners argue that this case shows that state
regulation of similar sales here—i.e., by a pipeline to a
direct consumer—must also be pre-empted. See Reply
Brief 11–12. Mississippi Power, however, is best read as a
conflict pre-emption case, not a field pre-emption case.
See 487 U.S., at 377 (“[A] state agency’s ‘efforts to regu­
late commerce must fall when they conflict with or inter­
fere with federal authority over the same activity’ ” (quot­
ing Chicago & North Western Transp. Co. v. Kalo Brick &
Tile Co., 450 U.S. 311, 318–319 (1981))).
Regardless, the state inquiry in Mississippi Power was
pre-empted because it was directed at jurisdictional sales
in a way that respondents’ state antitrust lawsuits are
not. Mississippi’s inquiry into the reasonableness of
FERC-approved purchases was effectively an attempt to
“regulate in areas where FERC has properly exercised its
Cite as: 575 U. S. ____ (2015) 15
Opinion of the Court
jurisdiction to determine just and reasonable wholesale
rates.” 487 U.S., at 374. By contrast, respondents’ state
antitrust lawsuits do not seek to challenge the reason-
ableness of any rates expressly approved by FERC. Rather,
they seek to challenge the background marketplace condi­
tions that affected both jurisdictional and nonjurisdic-
tional rates.
Petitioners additionally point to FPC v. Louisiana Power
& Light Co., 406 U.S. 621 (1972). In that case, the Court
held that federal law gave FPC the authority to allocate
natural gas during shortages by ordering interstate pipe­
lines to curtail gas deliveries to all customers, including
retail customers. This latter fact, the pipelines argue,
shows that FERC has authority to regulate index manipu­
lation insofar as that manipulation affects retail (as well
as wholesale) sales. Brief for Petitioners 26. Accordingly,
they contend that state laws that aim at this same subject
are pre-empted.
This argument, however, makes too much of too little.
The Court’s finding of pre-emption in Louisiana Power
rested on its belief that the state laws in question con-
flicted with federal law. The Court concluded that “FPC
has authority to effect orderly curtailment plans involving
both direct sales and sales for resale,” 406 U.S., at 631,
because otherwise there would be “unavoidable conflict
between” state regulation of direct sales and the “uniform
federal regulation” that the Natural Gas Act foresees, id.,
at 633–635. Conflict pre-emption may, of course, invali­
date a state law even though field pre-emption does not.
Because petitioners have not argued this case as a conflict
pre-emption case, Louisiana Power does not offer them
significant help.
C
To the extent any conflicts arise between state antitrust
law proceedings and the federal rate-setting process, the
16 ONEOK, INC. v. LEARJET, INC.
Opinion of the Court
doctrine of conflict pre-emption should prove sufficient to
address them. But as we have noted, see Part I–A, supra,
the parties have not argued conflict pre-emption. See also,
e.g., Tr. of Oral Arg. 24 (Solicitor General agrees that he
has not “analyzed this [case] under a conflict preemption
regime”). We consequently leave conflict pre-emption
questions for the lower courts to resolve in the first
instance.
D
We note that petitioners and the Solicitor General have
argued that we should defer to FERC’s determination that
field pre-emption bars the respondents’ claims. See Brief
for Petitioners 22 (citing Arlington v. FCC, 569 U. S. ___,
___–___ (2013) (slip op., at 10–14); Brief for United States
as Amicus Curiae 32 (same). But they have not pointed to
a specific FERC determination that state antitrust claims
fall within the field pre-empted by the Natural Gas Act.
Rather, they point only to the fact that FERC has promul­
gated detailed rules governing manipulation of price
indices. Because there is no determination by FERC that
its regulation pre-empts the field into which respondents’
state-law antitrust suits fall, we need not consider what
legal effect such a determination might have. And we
conclude that the detailed federal regulations here do not
offset the other considerations that weigh against a find­
ing of pre-emption in this context.
* * *
For these reasons, the judgment of the Court of Appeals
for the Ninth Circuit is affirmed.
It is so ordered.
Cite as: 575 U. S. ____ (2015) 1
Opinion of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–271
_________________
ONEOK, INC., ET AL. PETITIONERS v.
LEARJET, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 21, 2015]
JUSTICE THOMAS, concurring in part and concurring in
the judgment.
I agree with much of the majority’s application of our
precedents governing pre-emption under the Natural Gas
Act. I write separately to reiterate my view that “implied
pre-emption doctrines that wander far from the statutory
text are inconsistent with the Constitution.” Wyeth v.
Levine, 555 U.S. 555, 583 (2009) (THOMAS, J., concurring
in judgment). The Supremacy Clause of our Constitution
“gives ‘supreme’ status only to those [federal laws] that
are ‘made in Pursuance’ ” of it. Id., at 585 (quoting Art. VI,
cl. 2). And to be “made in Pursuance” of the Constitution,
a law must fall within one of Congress’ enumerated pow-
ers and be promulgated in accordance with the lawmaking
procedures set forth in that document. Id., at 585–586.
“The Supremacy Clause thus requires that pre-emptive
effect be given only to those federal standards and policies
that are set forth in, or necessarily follow from, the statu-
tory text that was produced through the constitutionally
required bicameral and presentment procedures.” Id., at
586.
In light of this constitutional requirement, I have doubts
about the legitimacy of this Court’s precedents concern-
ing the pre-emptive scope of the Natural Gas Act, see, e.g.,
Northern Natural Gas Co. v. State Corporation Comm’n of
2 ONEOK, INC. v. LEARJET, INC.
Opinion of THOMAS, J.
Kan., 372 U.S. 84, 91–92 (1963) (defining the pre-empted
field in light of the “objective[s]” of the Act). Neither
party, however, has asked us to overrule these longstand-
ing precedents or “to overcome the presumption of stare
decisis that attaches to” them. Kurns v. Railroad Friction
Products Corp., 565 U. S. ___, ___ (2012) (slip op., at 7).
And even under these precedents, the challenged state
antitrust laws fall outside the pre-empted field. Because
the Court today avoids extending its earlier questionable
precedents, I concur in its judgment and join all but Part
I–A of its opinion.
Cite as: 575 U. S. ____ (2015) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–271
_________________
ONEOK, INC., ET AL. PETITIONERS v.
LEARJET, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[April 21, 2015]
JUSTICE SCALIA, with whom THE CHIEF JUSTICE joins,
dissenting.
The Natural Gas Act divides responsibility over trade in
natural gas between federal and state regulators. The Act
and our cases interpreting it draw a firm line between
national and local authority over this trade: If the Federal
Government may regulate a subject, the States may not.
Today the Court smudges this line. It holds that States
may use their antitrust laws to regulate practices already
regulated by the Federal Energy Regulatory Commission
whenever “other considerations . . . weigh against a find-
ing of pre-emption.” Ante, at 16. The Court’s make-it-up-
as-you-go-along approach to preemption has no basis in
the Act, contradicts our cases, and will prove unworkable
in practice.
I
Trade in natural gas consists of three parts. A drilling
company collects gas from the earth; a pipeline company
then carries the gas to its destination and sells it at
wholesale to a local distributor; and the local distributor
sells the gas at retail to industries and households. See
ante, at 3. The Natural Gas Act empowers the Commis-
sion to regulate the middle of this three-leg journey—
interstate transportation and wholesale sales. 15 U.S. C.
2 ONEOK, INC. v. LEARJET, INC.
SCALIA, J., dissenting
§717 et seq. But it does not empower the Commission to
regulate the opening and closing phases—production at
one end, retail sales at the other—thus leaving those
matters to the States. §717(b). (Like the Court, I will for
simplicity’s sake call the sales controlled by the Commis-
sion wholesale sales, and the companies controlled by the
Commission pipelines. See ante, at 4.)
Over 70 years ago, the Court concluded that the Act
confers “exclusive jurisdiction upon the federal regulatory
agency.” Public Util. Comm’n of Ohio v. United Fuel Gas
Co., 317 U.S. 456, 469 (1943). The Court thought it
“clear” that the Act contemplates “a harmonious, dual
system of regulation of the natural gas industry—federal
and state regulatory bodies operating side by side, each
active in its own sphere,” “without any confusion of func-
tions.” Id., at 467. The Court drew this inference from the
law’s purpose and legislative history, though it could just
as easily have relied on the law’s terms and structure.
The Act grants the Commission a wide range of powers
over wholesale sales and transportation, but qualifies only
some of these powers with reservations of state authority
over the same subject. See §717g(a) (concurrent authority
over recordkeeping); §717h(a) (concurrent authority over
depreciation and amortization rates). Congress’s decision
to include express reservations of state power alongside
these grants of authority, but to omit them alongside other
grants of authority, suggests that the other grants are
exclusive. Right or wrong, in any event, our inference of
exclusivity is now settled beyond debate.
United Fuel rejected a State’s regulation of wholesale
rates. Id., at 468. But our later holdings establish that
the Act makes exclusive the Commission’s powers in
general, not just its rate-setting power in particular. We
have again and again set aside state laws—even those
that do not purport to fix wholesale rates—for regulating a
matter already subject to regulation by the Commission.
Cite as: 575 U. S. ____ (2015) 3
SCALIA, J., dissenting
See, e.g., Northern Natural Gas Co. v. State Corporation
Comm’n of Kan., 372 U.S. 84, 89 (1963) (state regulation
of pipelines’ gas purchases preempted because it “in-
vade[s] the exclusive jurisdiction which the Natural Gas
Act has conferred upon the [Commission]”); Exxon Corp. v.
Eagerton, 462 U.S. 176, 185 (1983) (state law prohibiting
producers from passing on production taxes preempted
because it “trespasse[s] upon FERC’s authority”);
Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 309
(1988) (state securities regulation directly affecting whole-
sale rates and gas transportation facilities preempted
because it regulates “matters that Congress intended
FERC to regulate”). The test for preemption in this set-
ting, the Court has confirmed, “ ‘is whether the matter on
which the State asserts the right to act is in any way
regulated by the Federal Act.’ ” Id., at 310, n. 13.
Straightforward application of these precedents would
make short work of the case at hand. The Natural Gas
Act empowers the Commission to regulate “practice[s] . . .
affecting [wholesale] rate[s].” §717d. Nothing in the Act
suggests that the States share power to regulate these
practices. The Commission has reasonably determined
that this power allows it to regulate the behavior involved
in this case, pipelines’ use of sham trades and false reports
to manipulate gas price indices. Because the Commis-
sion’s exclusive authority extends to the conduct chal-
lenged here, state antitrust regulation of that conduct is
preempted.
II
The Court agrees that the Commission may regulate
index manipulation, but upholds state antitrust regulation
of this practice anyway on account of “other considerations
that weigh against a finding of pre-emption in this con-
text.” Ante, at 16. That is an unprecedented decision.
The Court does not identify a single case—not one—in
4 ONEOK, INC. v. LEARJET, INC.
SCALIA, J., dissenting
which we have sustained state regulation of behavior
already regulated by the Commission. The Court’s justifi-
cations for its novel approach do not persuade.
A
The Court begins by considering “the target at which the
state law aims.” Ante, at 11. It reasons that because this
case involves a practice that affects both wholesale and
retail rates, the Act tolerates state regulation that takes
aim at the practice’s retail-stage effects. Ibid.
This analysis misunderstands how the Natural Gas Act
divides responsibilities between national and local regula-
tors. The Act does not give the Commission the power to
aim at particular effects; it gives it the power to regulate
particular activities. When the Commission regulates
those activities, it may consider their effects on all parts of
the gas trade, not just on wholesale sales. It may, for
example, set wholesale rates with the aim of encouraging
producers to conserve gas supplies—even though produc-
tion is a state-regulated activity. See Colorado Interstate
Gas Co. v. FPC, 324 U.S. 581, 602–603 (1945); id., at 609–
610 (Jackson, J., concurring). Or it may regulate whole-
sale sales with an eye toward blunting the sales’ anticom-
petitive effects in the retail market—even though retail
prices are controlled by the States. See FPC v. Conway
Corp., 426 U.S. 271, 276–280 (1976). The Court’s ad hoc
partition of authority over index manipulation—leaving it
to the Commission to control the practice’s consequences
for wholesale sales, but allowing the States to target its
consequences for retail sales—thus clashes with the de-
sign of the Act.
To justify its fixation on aims, the Court stresses that
this case involves regulation of “background marketplace
conditions” rather than regulation of wholesale rates or
sales themselves. Ante, at 15. But the Natural Gas Act
empowers the Commission to regulate wholesale rates and
Cite as: 575 U. S. ____ (2015) 5
SCALIA, J., dissenting
“background” practices affecting such rates. It grants both
powers in the same clause: “Whenever the Commission . . .
find[s] that a [wholesale] rate, charge, or classification . . .
[or] any rule, regulation, practice, or contract affecting
such rate, charge, or classification is unjust [or] unreason-
able, . . . the Commission shall determine the just and
reasonable rate, charge, classification, rule, regulation,
practice, or contract to be thereafter observed.” §717d(a)
(emphasis added). Nothing in this provision, and for that
matter nothing in the Act, suggests that federal authority
over practices is a second-class power, somehow less ex-
clusive than the authority over rates.
The Court persists that the background conditions in
this case affect both wholesale and retail sales. Ante, at
15. This observation adds atmosphere, but nothing more.
The Court concedes that index manipulation’s dual effect
does not weaken the Commission’s power to regulate it.
Ante, at 10. So too should the Court have seen that this
simultaneous effect does not strengthen the claims of the
States. It is not at all unusual for an activity controlled by
the Commission to have effects in the States’ field; produc-
tion, wholesale, and retail are after all interdependent
stages of a single trade. We have never suggested that the
rules of field preemption change in such situations. For
example, producers’ ability to pass production taxes on to
pipelines no doubt affects both producers and pipelines.
Yet we had no trouble concluding that a state law restrict-
ing producers’ ability to pass these taxes impermissibly
attempted to manage “a matter within the sphere of
FERC’s regulatory authority.” Exxon, supra, at 185–186.
The Court’s approach makes a snarl of our precedents.
In Northern Natural, the Court held that the Act preempts
state regulations requiring pipelines to buy gas ratably
from gas wells. 372 U.S., at 90. The regulations in that
case shared each of the principal features emphasized by
the Court today. They governed background market
6 ONEOK, INC. v. LEARJET, INC.
SCALIA, J., dissenting
conditions, not wholesale prices. Id., at 90–91. The back-
ground conditions in question, pipelines’ purchases from
gas wells, affected both the federal field of wholesale sales
and the state field of gas production. Id., at 92–93. And
the regulations took aim at the purchases’ effects on pro-
duction; they sought to promote conservation of natural
resources by limiting how much gas pipelines could take
from each well. Id., at 93. No matter; the Court still
concluded that the regulations “invade[d] the federal
agency’s exclusive domain.” Id., at 92. The factors that
made no difference in Northern Natural should make no
difference today.
Contrast Northern Natural with Northwest Central
Pipeline Corp. v. State Corporation Comm’n of Kan., 489
U.S. 493 (1989), which involved state regulations that
restricted the times when producers could take gas from
wells. On this occasion the Court upheld the regula-
tions—not because the law aimed at the objective of gas
conservation, but because the State pursued this end by
regulating “ ‘the physical ac[t] of drawing gas from the
earth.’ ” Id., at 510. Our precedents demand, in other
words, that the Court focus in the present case upon what
the State seeks to regulate (a pipeline practice that is
subject to regulation by the Commission), not why the
State seeks to regulate it (to curb the practice’s effects on
retail rates).
Trying to turn liabilities into assets, the Court bran-
dishes statements from Northern Natural and Northwest
Central that (in its view) discuss where state law was
“aimed” or “directed.” Ante, at 11. But read in context,
these statements refer to the entity or activity that the
state law regulates, not to which of the activity’s effects
the law seeks to control by regulating it. See, e.g., North-
ern Natural, supra, at 94 (“[O]ur cases have consistently
recognized a significant distinction . . . between conserva-
tion measures aimed directly at interstate purchasers and
Cite as: 575 U. S. ____ (2015) 7
SCALIA, J., dissenting
wholesales . . . , and those aimed at producers and produc-
tion”); Northwest Central, supra, at 512 (“[This regulation]
is directed to the behavior of gas producers”). The law-
suits at hand target pipelines (entities regulated by the
Commission) for their manipulation of indices (behavior
regulated by the Commission). That should have sufficed
to establish preemption.
B
The Court also tallies several features of state antitrust
law that, it believes, weigh against preemption. Ante, at
13–14. Once again the Court seems to have forgotten its
precedents. We have said before that “ ‘Congress meant to
draw a bright line easily ascertained, between state and
federal jurisdiction’ ” over the gas trade. Nantahala Power
& Light Co. v. Thornburg, 476 U.S. 953, 966 (1986) (quot-
ing FPC v. Southern Cal. Edison Co., 376 U.S. 205, 215–
216 (1964)). Our decisions have therefore “ ‘squarely
rejected’ ” the theory, endorsed by the Court today, that
the boundary between national and local authority turns
on “ ‘a case-by-case analysis of the impact of state regula-
tion upon the national interest.’ ” Ibid.
State antitrust law, the Court begins, applies to “all
businesses in the marketplace” rather than just “natural-
gas companies in particular.” Ante, at 13. So what? No
principle of our natural-gas preemption jurisprudence
distinguishes particularized state laws from state laws of
general applicability. We have never suggested, for exam-
ple, that a State may use general price-gouging laws to fix
wholesale rates, or general laws about unfair trade prac-
tices to control wholesale contracts, or general common-
carrier laws to administer interstate pipelines. The Court
in any event could not have chosen a worse setting in
which to attempt a distinction between general and par-
ticular laws. Like their federal counterpart, state anti-
trust laws tend to use the rule of reason to judge the law-
8 ONEOK, INC. v. LEARJET, INC.
SCALIA, J., dissenting
fulness of challenged practices. Legal Aspects of Buying
and Selling §10:12 (P. Zeidman ed. 2014–2015). This
amorphous standard requires the reviewing court to con-
sider “a variety of factors, including specific information
about the relevant business, its condition before and after
the restraint was imposed, and the restraint’s history,
nature, and effect.” State Oil Co. v. Khan, 522 U.S. 3, 10
(1997). Far from authorizing across-the-board application
of a uniform requirement, therefore, the Court’s decision
will invite state antitrust courts to engage in targeted
regulation of the natural-gas industry.
The Court also stresses the “ ‘long history’ ” of state
antitrust regulation. Ante, at 14. Again, quite beside the
point. States have long regulated public utilities, yet the
Natural Gas Act precludes them from using that estab-
lished power to fix gas wholesale prices. United Fuel, 317
U.S., at 468. States also have long enacted laws to con-
serve natural resources, yet the Act precludes them from
deploying that power to control purchases made by gas
pipelines. Northern Natural, 372 U.S., at 93–94. The
Court’s invocation of the pedigree of state antitrust law
rests on air.
One need not launch this unbounded inquiry into the
features of state law in order to preserve the States’ au-
thority to apply “tax laws,” “disclosure laws,” and “blue
sky laws” to natural-gas companies, ante, at 12. One need
only stand by the principle that if the Commission has
authority over a subject, the States lack authority over
that subject. The Commission’s authority to regulate gas
pipelines “in the public interest,” §717a, is a power to
address matters that are traditionally the concern of
utility regulators, not “a broad license to promote the
general public welfare,” NAACP v. FPC, 425 U.S. 662, 669
(1976). We have explained that the Commission does not,
for example, have power to superintend “employment
discrimination” or “unfair labor practices.” Id., at 670–
 Cite as: 575 U. S. ____ (2015) 9
SCALIA, J., dissenting
671. So the Act does not preempt state employment dis-
crimination or labor laws. But the Commission does have
power to consider, say, “conservation, environmental, and
antitrust questions.” Id., at 670, n. 6 (emphasis added).
So the Act does preempt state antitrust laws.
C
At bottom, the Court’s decision turns on its perception
that the Natural Gas Act “ ‘was drawn with meticulous
regard for the continued exercise of state power.’ ” Ante, at
10. No doubt the Act protects state authority in a variety
of ways. It gives the Commission authority over only some
parts of the gas trade. §717(b). It establishes procedures
under which the Commission may consult, collaborate, or
share information with States. §717p. It even provides
that the Commission may regulate practices affecting
wholesale rates “upon its own motion or upon complaint of
any State.” §717d(a) (emphasis added). It should have
gone without saying, however, that no law pursues its
purposes at all costs. Nothing in the Act and nothing in
our cases suggests that Congress protected state power in
the way imagined by today’s decision: by licensing state
sorties into the Commission’s domain whenever judges
conclude that an incursion would not be too disruptive.
The Court’s preoccupation with the purpose of preserv-
ing state authority is all the more inexpiable because that
is not the Act’s only purpose. The Act also has competing
purposes, the most important of which is promoting “uni-
formity of regulation.” Northern Natural, supra, at 91.
The Court’s decision impairs that objective. Before today,
interstate pipelines knew that their practices relating to
price indices had to comply with one set of regulations
promulgated by the Commission. From now on, however,
pipelines will have to ensure that their behavior conforms
to the discordant regulations of 50 States—or more accu-
rately, to the discordant verdicts of untold state antitrust
10 ONEOK, INC. v. LEARJET, INC.
SCALIA, J., dissenting
juries. The Court’s reassurance that pipelines may still
invoke conflict preemption, see ante, at 15–16, provides
little comfort on this front. Conflict preemption will re-
solve only discrepancies between state and federal regula-
tions, not the discrepancies among differing state regula-
tions to which today’s opinion subjects the industry.
* * *
“The Natural Gas Act was designed . . . to produce a
harmonious and comprehensive regulation of the industry.
Neither state nor federal regulatory body was to encroach
upon the jurisdiction of the other.” FPC v. Panhandle
Eastern Pipe Line Co., 337 U.S. 498, 513 (1949) (footnote
omitted). Today, however, the Court allows the States to
encroach. Worse still, it leaves pipelines guessing about
when States will be allowed to encroach again. May
States aim at retail rates under laws that share none of
the features of antitrust law advertised today? Under
laws that share only some of those features? May States
apply their antitrust laws to pipelines without aiming at
retail rates? But that is just the start. Who knows what
other “considerations that weigh against a finding of pre-
emption” remain to be unearthed in future cases? The
Court’s all-things-considered test does not make for a
stable background against which to carry on the natural
gas trade.
I would stand by the more principled and more workable
line traced by our precedents. The Commission may
regulate the practices alleged in this case; the States
therefore may not. I respectfully dissent.