ML20126C083
| ML20126C083 | |
| Person / Time | |
|---|---|
| Issue date: | 07/09/1976 |
| From: | Strauss P NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Gilinsky V, Mason, Rowden M NRC COMMISSION (OCM) |
| Shared Package | |
| ML111190297 | List: |
| References | |
| SECY-80-039, SECY-80-39, NUDOCS 8003260486 | |
| Download: ML20126C083 (20) | |
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July 9, 1976 G
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MEMORANDUM FOR:
Chairman Rowden Ccmmissioner Mason Commissioner Gilinsky Commissioner Kennedy h-FROM:
Peter L. Strauss, General Counsel J7 ;i-,
SUBJECT:
NAACP V.
FEDERAL POWER CO.*O!ISSION, RECENT SUPP2ME COURT CASE 15VOLVING THE RESPONSI-BILITY OF A FEDERAL AGENCY TO ELIMINATE 4
EMPLOYMENT DISCRIMINATION A recent decision of the Supreme Court involving a federal regulatory agency's responsibilities in the area of employment discrimination may have some relevance to the NRC.
The case is NAACP v. Federal Power Commission (copy attached).
l In 1972 the NAACP and several other organizations petitioned the FPC for a rule " requiring equal opportunity and nondis-crimination in the employment practices of its regulatees."
The propcsed rule would have, required the regulated companies to adopt affirmative action programs to combat discrimination in employment and wculd have given to any person who believed himself to have been subjected to employment discrimination by any such ccmpany the right to file a ec= plaint with the Com-mission.
If a violation were found, the Commission could withhold or condition the granting of licenses, rate changes, etc., upon the correction of the discriminatory practice.
The FPC disclaimed authority to adopt such a rule, and was affirmed in large part by the Court of Appeals.
That Court, however, held that the FPC could proceed against regulated companies for employment discrimination to the extent that it affected their costs by disallowing certain costs in the calculation of utility rates.
The NAACP had urged a further ground, namely, that the FPC was statutorily required to act in the "publi interest," and since it is in the puolic interest l
to eradicate employment discrimination, the FPC was obligated to attempt to do so among its regulatees.
The Court of Appeals rejected this broader ground.
Contact:
William M.
Shields 492-8155 8 0 0 3 20 0 4 g7g y
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July 9, 1976 The Supreme Court, in an opinion by Justice Stewart, affirmed the Court of Appeals.
On the issue of the costs of employ-ment discrimination, the Court states:
The Ccamission clearly has the duty to prevent its regulatees from charging rates based upon illegal, duplicative, or unnecessary labor costs.
To th.e extent such costs are demonstrably the product of a regulatee's discriminatory employment practices, the Commission should disallow them.
(
In the following paragraph of his opinion, Justice Stewart ex-4 tends this principle to "other similar costs" such as attorneys' fees incurred in defending discrimination suits.
s On the broader "public interest" claim, however, the Court holds:
This Court's cases have consistently held that the use of the words "public interest" in a regulatory statute is not a broad license to promote the general public welfare.
Rather the words take meaning from the pur-poses of the regulatory legislation.
The Court cites as an example the Interstate Commerce Commission which, while intended to serve the "public interest," is only intended to do so by assuring, economic and efficient transpor-tation services.
In a footnote, the Court also discussed the i
position of the Federal Communications Commission, which is i
obligated by the Communications Act of 1934 to regulate employ-ment practices in order to ensure fair representation of minority views.
The Court notes that "It has nowhere been argued that the Federal Power Commission needs similar regu-lations in order to promote energy production at reasonable rates."
The Court concludes as follows:
The use of the words "public interest" in the Gas I
and Power Acts is not a directive to the Commission I
to seek to eradicate discrimination, but rather is a charge to promote orderly production of plentiful supplies of electric energy and natural gas at just I
and reasonable rates....
We agree, in short, with 1
the Court of Appeals that the Federal Power Commis-sion is authorized to consider the consequences of discriminatory employment prac'tices on the part of its regulatees only insofar as such consequences are directly related to the Commission's establishment of.just and reasonable rates in the public interest.
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The Commission 3
July 9, 1976 It is clear that since the NRC has no jurisdiction over rates (Section 271, Atomic Energy Act of 1954), it cannot apply the disallowance of unwarranted costs penalty permitted by NAACP.
The NRC is principally concerned with the regulation of nuclear power and the control of nuclear materials for the purpose of ensuring safety.
(It has authority to consider other matters as well, for example, antitrust questions under 42'U.S.C.
5 2135 -- the Court noted that this was true of the FPC as well, see footnote 6 to the majority opinion.)
- Further, since the NRC has no statutory duties comparable to those of the FCC in ensuring representation of minority views in broad-casting, it has no authority to become directly involved in, employment practices on any explicit statutory basis.
On a scale from the FCC to the FPC to the NRC, the NRC may be said td have the least authority to become involved in employment 4
practices.
Nevertheless, we have considered what, under the NAACP decision, would be the furthest reach of NRC's respon-sibility in this area.
Put another way, what is the best argument that could be made by a group such as the NAACP in requesting NRC involvement in the employment practices of its regulatees?
One possibility might exist if discriminatory hiring and promotion policies by a utility led to proportionately higher radiologic risks to minority employees.
If dis-crimination could be shown to result in minority employees being hired for and kept in the lower-level jobs at nuclear facilities involving higher radiologic risk than, say operator-level positions, such discrimination would affect the health and safety of these amployees and thus might become a matter for NRC scrutiny.
A second. possibility lies in the area of operator licensing.
Since operators are hired by utilities before being licensed by the NRC, discriminatory hiring by a utility will result in few minority operators being licensed by the NRC for this utility.
While in such a case it certainly cannot be said that NRC is a direct party to the discrimination, even its passive involvement might support.an affirmative action requirement on licensees for operators.
As the most extended case, it is possible that blatant and continued discrimination against minorities in hiring and promotion i
might have a demoralizing effect on minority employees, thereby affecting their efficiency".and care in performing their duties.
It is marginally possible that this could result in reduced safety and security at the nuclear facility involved.
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o-The commission 4
July 9, 19 7 6
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It is suggested that under the NAACP case, NRC authority in the area of employment discrimination does not extend beyond the outlined areas.
If in the future complaints of employ-mont discrimination are brought before the Commission, they 4"
should be examined on a case-by-case basis to determina NRC jurisdiction extends to the matters alleged.
Attachment:
Decision cc:
SECY (2)
Mr. Huberman Mr. Gossick Mr. Tucker i
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SUPEDIE COURT OF THE UNITED STATES Syllabus NATIONAL ASSOCIATION FOR THE ADVANCE-1 MENT OF COLORED PEOPLE :T AL. U.
FEDERAL POWER COADIISSION' i
v CERTIORARI TO THE U.N*IT2D STATES COURT OF APPEALS 703 THE DISTRICT OF COLUMBIA CIRCUlT No.74-160S. Argued February 25,197G--Decided.\\Iay 19,19~6' The National Association for the Advancement of Colored People and various other organizations petitioned the Federal Power f
Commission (FPC) to inue a rule " requiring equal employment opportunity and ncndiarimination in the employment practices j
of its regulatees." The FPC refused, holdin; that it had no e
jurisdiction to issue 3.uch a rule. On petition for review, the Court of Appea!.s, while agreein; that the FPC lacked power to prescribe personnel practices in detail and act upon personnel cornplaints, held that the FPC does have " power to take into account, in the performance of its regulatory functions, includin;
.q licensing and rate review, evidence that the re;ulatec is a demon-strated discriminator in its c:nployment relations." Heldt
- 1. The FPC is attthori:ed to consider the consequeneu of dir-criminatory employmcat practices on the part of its re.:uiatecs t
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only insofar as such cotuequences are dir,eetly related to the FPC's 1
establishment of just and reasonab!e rates in the pubfie interest.
To the extent that ilic;al, duplicative, or unne:essary labor costs are demonstrably the product of a re;ulatee's disenminatory em-ployment practices and can be or have been demonstrably quan.
tified by judicial d:erce or the final action of an administrative agency the FPC should dimllow them. Pp. 4-7.
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- 2. The FPC's asserted duty to advance the public interest, i
j however, does uot afford any basis for its prohibiting regulatees l
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'Together with No. 74-1619, Federal Pot::er Commission v. Nc-tional Association for the Adt:ancement of Cdored People e: 01.,
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also on certiorari to the same court.
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Syllsbus from en;;agin; ira discriminsterv employrnent pr:cticas, :.c reice-1 ences to the "public interest in the Fc&ral Perer A.:t and Ji.t-tural Gas Act, require the FTC to promote the crderly :.tr.du: icn el plentifu! supplic:s of ciectric ener;y and.atural ;u n n et and reasona'cle r.ites, and do not ecnstitute a uit.i tive tr, th::
FPC to scek to cradicate d:acrimination. Pp. ~- 3.
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- U. S: App. D. C.
, " 0 F. 2d -132, arnr::.cd.
1, SrnwAnT, J., delivered the opiiiion of the Court, in whic'i Bra:::-
4 NAN, W}!!TE, UtaCKr.It:N PoWCLL. IlEll:iCVIAT and c'7:".I.?!!, Jd,,
1 Bt iturn, C. J. f!cd joined. Powr.u,, J. nled a concurrin; opinion.
an cpinion concurrin:;in the jud; ment. MAnsitat.L, J., iga! no par.
in the considera ion or dechion of the ca.4cs.
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i MOTfC5 t Thte criteten is suhjaet in forrnst retteten tiefere mbitution to the titalltulo irs trint at the (*nita.1 state e n;.*p rt<. Lie owrn a re re-f.eurt af ta,e Unitert M atra h.pha 14tuu. L8.C. 20.',4'es.,usne. &q.treue3, of nuy tys ",:ra pewal or guented in s utitt ihr 1.*l-rfer i.i l tuat corrections nasy De in.aue IN(ore the pre-fornist errnen, la vruva 11minary g.rint c:ss to prv4
.SUPRE'dE COURT OF THE UNITED STATES Nos.74-160s.mo 74-1610 I
National Association for the Advanecm' cut of Colored People et al., Petitioners,,74-100S v.
1 On Writs of Certiorari to Federal Power Commission.
the United States Court Federal Power Commission, of Appeals for the Dis-l Petitioner, trict of Columbia Circuit.
74-1619 v.
National Association for the Advancement of Colored People et al.
[May 19,1970]
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Ma. Jusnce STcwAnr delivered the opinion of the
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Court.
3 The issue in this case is to what extent, if any, the Federal Power Commission, in the performance of its functions under the Federal Power Act,10 U. S. C.
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$ 701a et seq. (Power Act), and the Natural Gas Act, 15 U. S. C. I 717 et seq. (Cas Act), has authority to
- l prohibit discriminstery employment practices on the part 1
of its regulatees.
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' In 1972 the National Association for the Advancement f
of Colored People (NAACP) and several other organiza.
l tions petiti:>ned the Commission to issue a rule "requir-ing equal employment opportunity and nondiscrimina-tion in the employment practtces or its regulatccs." The 4
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2 NAACP u. FPC proposed rule would have required the regulated com-panies to adopt affirmative action programs to combat discrimination in employment and would have given any person who believed himself to have been subjected to y
employment discrimination by any such company the right to Glo a complaint with the Commission.'
Tlic Commission reinsed to adopt the proposed ru!c, holding that it had no jurisdiction to do w because "the purposes of the Natural Gas and Federal Power Acts are economic regulation of entrepreneurs engaged in re-source developments. So considered, we do not find the necessary nexus between those aspects of our economic iegulatory activities and the employment procedures of 4
l the utility systems which we regulate, as would justify
[ adopting petitioners' proposed rule)."
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40,44.
On petition for review. the Court of Appeals for the District of Colutubia Circuit agreed that the Commission i
l was without " power... to prescribe personnel practices in detail and to receive complaints, adjudicate timm. and punish directly infractions of thoto practices." 520 F. 2d j
432, 435. The Court held, however, that the Commis-sion does' have " power to take into account, in the per-formance of its regulatory functions, including licensing and rato review, evidence that the regulatec is a demon-3 strated discriminator in its employment relations." I6&l.
Because of doubt as to the Conunission's recognition of any power on its part to take into account the employ-ment practices of its regulatees even in the narrower e
i 8 Under the proposed rule, a complaint that it.dicated a probable violation of Title VII of the Civil llights.\\et of 1964, 42 U. S. C.
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{ 2000e, could be referred by the Comnu.oion to the Equal Emp!cy-ment Opportunity Commision. The proposed rule is reproduced m full as an appendix to the opinion ot the Court of Appeals in this case. See 520 F. 2d 432, at 443.
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sense described above, the Court of Appeals vacated the Commission's order and remr.nded the case. 520 F. 2d, at 447. The Commission and the NAACP cach peti-tioned for certiorari, and we granted both petitions in order to consider the scope of the Commission's authority to deal with discriminatcry employment practices on the part of the companics titat it regulates.
U. S.
II The question presented is not whether the elimination of discrimination from our society is an important na-tional goal. It clearly is. The question is not whether Congress could authorize the Federal Power Concission l
to combat such discrimination. It clearly could. The question is simply whether or to what extent Congress did grant the Commission such authority. Two possib!c statutory bases have been advanced to justify the con-
~ lusion that the Commission can or must concern itself c
with discriminatory employment practices on the part of the companics it regulates.
The first of these statutory bases is the legislative 2
command to the Conunission under the Power and Gas Acts to establish "just and reasonable" rates for the a
transmission and sale of electric energy,16 U. S. C.
6 S24d (a). and for the transportation and sale of natural gas,15 U. S. C. ! 717c (a), and, consequently. to allow i
only such rates as will prevent consumers from being 8 We deal hero only with questions of statutory interpretation.
In the Court of Appeals and in its cross. petition for ecrtiorari the NAACP arped that the Comminion has a duty under the Fifth Arnendment to prevent emp!oyment discrimination 'oy its regulatees.
In its briefs on the mer:ts, however, the NAACP notes that a de.
eision on this constitutional question is unneceuary if we hold.
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as we do, that the Comminion has statutory autht.rity to consider the consequences of employment digerimiastion in performin;; its mandated re;;u!r. tory functions.
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NAACP v. FPC 1
charged with any unnecessary or illegal costs.*
The second and broader statutory basis advn.nced for Com-mission regult. tion of employment discriminetion is the Commission's a.sserted duty to advance the public in-terest. The NAACP notes that, Congress found that "the business of transmitting and selling electric ener:v l
for ultimate distribution to the public is aficeted w::h r.
1 public interest." 16 U S. C. s S24 (a). and that "the i
j business of transporting and scl!in:; natural gas for the i
ultimate distribution to the public is aficcted with'a public interest." 15 U. S. C. i 717 (a). From these and other references to the "public interest" in the Gas and Power Acts.* it is argued that, the Contmission is charce'.i with advancing the public interest in general, and thac the Commission is thus authorized if r.ot required to promulgate rules prohibiting its regulatees from engagin;;
in discriminatory employment practices. since ending dis-crimination in employment is in the public interest.
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J The' Court of Appeals basically accepted the first of S
these statutory arguments:
"The Commission's task in protecting the con-sumer against explo'itation can bc alternatively de-l scribed as the task 6f seeing that no unnecessary or illegitimato costs are passed along to that consumer, i
Costs incurred by reason of a regulatee's choosing to practice racial discrimination are within the reach
- See, e. g., Acker v. United States,208 U. S. 420,430-431: Citier i
Service Gcs Co. v. FPC. 404 F. 2d 411 (C.\\10); Safe llarbor II'ater Potcer Corp. v. TPC,170 F. Od 173 (CA3). See abo n. 5, infra.
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- See, e. g.,15 U. S. C. il 717b, 717f (a), 717n; 10 U. S. C.
$$ 797 (c), 707 (g), 500 (a), (43 (i), 506, S15, 524a (a), 524a (b),
8242 (c), S243 (e),524b (a),824b (b),304e (a). See also 15 U. S. C.
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$$ 717f (b), 717f (c), 717f (c).
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5 NAACP v. FPC of that responsibility. Without attempting an ex-haustive enumeration of such costs, we identify at k
least the following as indicative of those arguably within the Commission's ran: c of concern: (1) du-1 plicative labcr costs incurred in the form of back pay recoveries by employces who have proven that they or ad-were discriminatorily denied employment, vancernent, (2) the costs of losing valuabic govern-ment, contracts terminated because of employment
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discrimination, (3) the costs of legal proceedin;s in
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either of these two categorics, f 4) the costs of strikes, demonstrations, and boycotts aimed against regula-tees because of employment discritnination,-(5) ex-cessive labor costs incurred because of the clitnina-tion from the prospective labor force of those who j
l are discriminated against, and (6) the' costs of in-efficiency among minority employees demoralized by discriminatory barriers to their fair treatment or promotion.
"Obviously such costs of employment discrimina-tion range from the very definite and easily ascer-tainable to the very questionable and virtually un-quantifiable. The problem of how to see that they are not berne by the consumer could arise in any number of different regulatory contexts, including both rate and certificate proceedings. We therefore do not attempt to detail all the various ways the Commission may thus ' regulate' employment dis-Nj crimination. leaving this in the first instance to the Commission itself." 520 F. 2d, at 444 (footnote omitted).
Without necessarily endorsing the specific identifica-tion of the costs " arguably within" the Commission's
" range of concern," we agree with the basic conclusion The of the Court of Appeals on this branch of the case.
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6 NAACP v. FPC Commission clearly has the duty to prevent its rm.'fatca from char ~ging rates based upon illegal, duplica:ive, or
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unnecessary labor costs. To the extent that sus certs are demonstrably the product of a regulatee's cisceinine-J tory employment practices, the Commi.:sion snouW di:-
allow them. For enmpic, when a compacy ec mplies H
with a'backpay awa'rd resulting from a tindin:: of em-ployment discrimination in viola 90n of Titic T*Ii.if the i
Civil' Rights Act of 10M, 42 U. S. C. I 20000, it. pays, twice for work that was performed only once The amount of the backpay award, therefore, can a..i shou!d l
be disallowed as an unnecessary cost in a rattnaking proceeding.
To the extent that these and other similar costa such as attorneys' fees, can be or have been demonst.rebly S
quantified by judicial decree or the final setien of.m administrative agency charged with consideration of such matters. the Commission clearly should tren there costs as it ' treats any other illegal, nunecesv.-v.
ei duplicative costs. We were told by counsei d ring c:al argument that the Commission wouhl routin..iy dWal:ow i
the costs of a backpay award resulting from an a-der of the National Labor Relations Board er ti,e d.;ece of a court based upon a finding of an tm#.dr labcr practice. The governing principle is no di!Tr.rcut in the area of discriminatory employment practier s.
As a general proposition it is cicar that :hn Cammic-sion has the discretion to decide whether to appr.uch these problems throu;h the process of rui.;mni.g. indi.
vidual adjudication, or a combination of the rwo prg.
cedures. SEC v. Chencry Corp.,332 U. S.1M. 20M03.
The present Commission practice, we are tei, ie to con-t I
sider such questions only in individual ratemd.ing pro-ceedings, under its detailed accounting prccedmes.
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suming that the Commission continues that pra tico, it j
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has ampic authority to consider whatever evidence and make whatever inquires are necessary to determine whether a regulatcc has incurred unnece"ary or illegiti-inate costs because of racially discriminatory cmployment practices. 15 U. S. C. ss 717c (c), 717m; 10 U. S. C.
15 824d (e), S24f.
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The Court of Appeals rejected the broader argument based upon the statutory criterion of "public interest,"
This and we hold that it was correct in doing so.
Court's cases h' ave consistently held that the use of the words "public interest" in a regulatory statute is not a broad license to promote the general public )velfarc.
4 Rather the words take meaning from the purposes of the regulatory legislation.
For example, in the case of the Interstate Commerce Commission, which is responsible for cuforcing an act
" designed to assure adequacy in transportation service."
"the term 'public interest'... is not a concept without l
asecriainable criteria, but has direct relation to adequacy of transportation service, to its essential conditions of j
economy and eilleiency, and to appropriate provision and
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best use of transportation facilitics...." New York Central Sccuritics Corp. v. United Statcs, 2S7 U. S.12.
q Scc also New Haven inclusion Cases,309 U. S.
24-25.
302,432; National Brcadcasting Co. v. United States,310 U. S.190, 210; Federal Radio Comm'n v. Ncison Bros.
Bond & Mortgage Co. 250 U. S.2CG,2S5.
Thus, in order to give content and meaning to the I
words "public interest *' as used in the Power and Gas Acts, it is necessary to look to the purposes for which In the case of the Power and,
the Acts were adopted.,
Gas Acts it is clear that the principal purpose of those Acts was to encourage the orderly development of plenti-1 ful supplies of c!cctricity and natural gas at reasonable l
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S NAACP,v. FFC prices.' While there are undoubtedly other subsidiar.e purposes contained in these Acts.' the parties point to i
nothing in the.\\ cts or their legislative histories to indi.
cate that the elimination of employment discriminct:ca was enc of the purpre that Ccngres had in mind "chen it enacted this legislation. The use of the words "puclic
,1 interest" in the Gas and Power Acts is not a directive to tlic Commission to seek to eradicate discrimination.
but rather.is a char;:e to promote the cruerly production i
of plentiful supplies of electric energy and natural gas at just, and reasonable rates.'
816 U. S. C. { $24a (a) (The purpose of the Power Act is to "assur[c] an abundan:.;upply of cieetric ener:y throu:hout the United Stat-4 mth the ::reate.st pomb!e economy."); Perver;tecnia 5
iPaler & Pourr Co. v. TPC, 343 C. S. 411. 4 M (".i inajor purpnee l
of the [ Power].\\ct is to protect consumers at;ninst execmvc prices."); Fl>C v. Hope Natural Gas Co., 320 U. S. 501, 610 (The
" primary aim" of th: Natural Gas.ht b "to protect consurners 8cc against exploitation at the hands of nattual ;as companie'.").
1 also S. Rep. No. 021. 74th Con;.1st Sc m.,17: FPC v. Tcnnmcc Gas Transminion Co.,371 C. S.145,154: Atlantic Rcfning Co. v.
Public Serv. Conun'n,360 C. S. 37S,3SS: Permian Dcsin Arca Rate Cases,300 U. S. 747,770.
- For example, the Commission has authority to consider conser.
vation, environmental, and antitrust que-nonc. See 15 U. S. C.
$ 717s (a); IG U. S. C. sj SOG (a), (h): Gu?! States Clinfics Co. v.
FPC, 4iL U. S. 747: Udcll v. FPC. 357 C. S. 423.
'The Federal Commutuentions C6traniuien has adepted re;ula-Sec tions dealin; with the emp!oyment praences of in regulatees.
47 CFR l} 01.307, 70 311. These regulations enn be junified as 1
necessary to enable the FCC to rattsiy its cblication under the j
Cornmunications.\\ct of 193 4,4" U. 5. C. } 151 ct seq., to cruure thr.t j
its licenices' pregrammin; fairly re:1cets the tute:i and viewpoirts ct minority ;;toups. Sec 05 ice of Communication of Cntted Ci.urch j
of Christ v. FCC, - U. S..\\pp. D. C.
,350 F. Od 004; 33 Fed.
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Reg. 0000, 00G2. It has nowhere been at:;ued that the Federal Power Comminion needs similar re;ulations in order to promote energy production at. reasonable rates.
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i It is' useful again to draw on the analory of federal j
labor law. No less than in the federal le:is!ation denn-ing the national intere.<t, in endin:t employment discrimi-nation, Congress in its cariier labor legislation unmistak.
I ably defined the national interest, in free collective bargaining. Yet it could hardly he supposed that in directine the Federal Power Commission to be guidcd by
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the "public interest." Congress thereby instructed it to
.take original jurisdiction over the processing of charges of unfair labor practices on the part of its re:;nlatecs.
We agrec, in short, with the Court of A;) peals that the Federal Power Commi<sion is authorized to consider the t
consequences of discriminatory employment practices on j
the part of its regulatees only insofar as such conse-l quences are directly related to the Conimission's estab-
- lishment of just and reasonable rates in the public l
interest. Accordingly, we afiirnt the judgment before us.
It is so ordcred.
5fn. Jt:sTtcc Mansnat.t. took no part in the considera-tion or decision of these cases.
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c SUPEELIE COET OF TdE UITITED STATES Nos. 74-1003.e.:o 74-1610 National Association for the; Advancement of Colered People et al.. l'etitioners,74-160S u.
On Writs of Certiorari to Federal P'ower Commission.
the United States Court
' Federal Power Commission, of Appeals for the Dis-
'l Petitioner, trict of Columbia Circuit.
'74-1619 v.
National Association for the Advancement of Co!cred People et al.
.[May 10,1976]
T Ma. Jt:snct Pownt.t,, concurring.
Although I join in the opinion of the Court, I write briefly to emphasi:e a point that seems important.
The Court quotes a portion of the opinion of the Court of Appeals that identifies six categories of " costs" said to be " arguably within the Commission's range of con-cern." Ante, at 4, 5.
The Court of Appeals correctly noted, however, that these costs " range from the very definite and easily ascertainable io ihe very questionable and virtually unquantidable." Ante, at 5.
l The Court's opinion explicitly does not endorse all of these categories of costs, and requires that consideration be given only to costs that have been " demonstrably
. quantified by judicial decree or the final action of an i
administrative agency charged with consideration of -
3 such matters...." Ante, at 6.
Although implicit in what the Court says, I think it important to emphasize i
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NAACP p. FFC 2
that the costs identified in the opinion of the Court of Appeals as categories N), (5), and (6) could not bc quantified without resort to wholly speculative assump-tions that would be unacceptable ict ratemaking pur-J It would be quite impcssible, for example, to poses.
measure or determine with any exactitude "the cost of incEiejency amona.mincrity employees demoralized by discriminatory barriers to their fair treatment or pro-motion." 3'or is it likely that "the cost of strikes, dem-onstrations, and. boycotts aimed against [a utility] be-cause of employment discrimination," ante, at 5, could' ever be determined with sucielent reliability.
In view of the inherently amorphous nature of these categories of costs, it would not be in the public interesc
'to allow intervencrs to delay the orderly progress of rate proceedings in the vain hope that such costs mi:ht, I do not read after protracted litiaation, be quantined.
the Court's opinion as requiring any such encumbering of the Commission's prescribed statutory authority and l
discretion.
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h SUPRE,IE COURT OF TIIE UNITED STATES
.Nos.74-100s.co 74-1010 National Association for thc' Advancement of Colored Peopic et al.. Petitioners, I
74--160S v.
Federal. Power Commission; On Wrijs of Certio ai to the L m,ted 5:nts '.ourt
}
Federal Power Commission.
of Appeals fer th. Dis-Petitioner, trict of ColumE Circuit.
74-1610 v.
National Association for the Advancement of Colored 1
Peopic et al.
1
[May 19,1970)
Mn. Carnr Jesrict Bracca, concurring in the
- judgment, I join the judgment of the Court even th:>ush 1/.r.d it difiicult to understand why the result react.e4 t,y the Commission was not a reasonable administrr.:!vo r!ricr-mination. The Court of Appeals read the Cot.v-Woan's
. order in this. case as " ambiguous":
J "We do not know whether its order at;er'.ed a leck of jurisdiction to adopt (1) the speci!ic propend j
rule, or (2) any rule relating to empleyorat die-crimination by regulatecs." 520 F. 2d 132, G19.m-phasis added).
In context, the FPC's order could fairly have bem re ad, i
simply as rejecting the rule proposed by the SAACP.
This is particularly true in view of the Cummision s auditing practiec of disallowing duplicative costa. m-cluding those ocer.sioned by backpay awards. A c.r.>, at 6.
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2 NAACP v. F1'c In contrast to this standard administrative practice.
the rule proposed to the Commission called for e. tensive s
regulation of the employment practices of inclustries sub-ject to FPC jurisdiction. Under the proposed rule, the Commission would, among other thinus, be required to:
(a) enumerate unlawful cmployment practices; iM re-quire regulatees to establish a written program for equal employment opportunity which would be filed with the Commission; and ic) provide for individual employces to file discrimiuation complaints directly with the '
r Commission.
The Court of Appeals correctly reco;;nized that this far-reaching proposal would put the Federal Power Com-mission into the business of regulating the everyday em-ployment practices of regulated industries. The nec-essary result of this intrusion would be the imposition of another layer of fetteral regulation of the same subject matter, with the inevitable potential for conflict. be-tween administrative agencies.'
If Congress had mandated duplicative regulation. the result, however
]
inefficient. would be none of our concern. But Congress did not do so. It centralized responsibility in the EEOC.
i To the extent that the judiciary orders administrative j
i.
'A fermer Anistant Secretary of.the Treasury has observed:
"The proliferation of government control 4 has, perhaps inevitably, i
fl led to internal conflicts. In tomo ease the ndes of a given a:ency i
work at erou.purpo es with caeh other... More seriou4 and more frequent are the contradictions between the rulin:s of two or more government agencies where the re;;ulated have little recourse."
l Weidenbaum. The New Wave of Government I!c;ulation of Busi,
l ness, Business and Society Review S1, S4 (Fall 1975).
See abo U. S. News & W. Rep., May 10,19~0, at 00. And as Mr.
Justice Dou;las reminded us:
"The bureaucracy of modern government b not only slow. lum-berin;;, and oppresive: it is ommpresent." Wym:n v. James, 400 U. S. 304,335 (dusentiu;; opiruon).
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NAACP v. FPC 3
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responsibility to be diffused, congressional intent is frus-ative practice.
trated, reguhited industries are subjected to the coin-d for extensive
~ industries sub-l mands of di!Terent voices ~in the burcaperacy. and the
= yned rule, the agoni:in;;Iy long administrative process grinds even more slowly. To succest. for exampic, the.t the FPC could
- g. required to:
deny a license on cecount of a reculatee's discriminatory etiees; (b) re-employment practices. 520 E. 2d. at -1+i. is to thrust the cram for equal t
filed with the Comicission into a compic.':. volatile aren for which Con-gress has already asii;:ned authority'to the EEOC.
hlal employces No'rcasun whatever exists to assnine that Congress
- tly with the intended to enmesh the FPC so deeply in the regulation ijzed that this of emp!oyment practices. The Commission. was thus I
al Power Com-confronted with a duplicative and unprecedented pro-posal;.it could appropriately refuse to adopt the rule as e everyrlay em '
l beyond its jurisdiction: since the Court of Appeals con-les. The nec.
s imposition of
],
cluded that the FPC was correct in this respect. the
- came subject
}.
Commission's order could appropriately have been Jr conflict be-affirmed.
Congress had l
sult, however j
But Congress r in the EEOC.
administrative has observed:
erlups inevitably, of a given agency teriotu and mero
- s of two or more little recourse."
- ulation of Busi-1975),
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+ 00. And as Mr.
[
i snly slow, lutn-i aos v. James, 400 j
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