310
Opinion of the Court
like the one before us "call[s] for Congressional investigation, consideration, and action. The Constitution gives that branch of government the power to regulate commerce among the states, and until it acts I think we should enter the field with extreme caution." Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 302 (1944) (concurring opinion). This conclusion applies a fortiori here, because for a half century Congress has been aware of our conclusion in Pan-handle Eastern Pipe Line Co. v. Public Serv. Comm'n of Ind., 332 U. S. 507 (1947), that the NGA exempts state regulation of in-state retail natural gas sales from the dormant Commerce Clause and in the years following that decision has only reaffirmed the power of the States in this regard.
* * *
Accordingly, we conclude that Ohio's regulatory response to the needs of the local natural gas market has resulted in a noncompetitive bundled gas product that distinguishes its regulated sellers from independent marketers to the point that the enterprises should not be considered "similarly situated" for purposes of a claim of facial discrimination under the Commerce Clause. GMC's argument that the State discriminates between regulated local gas utilities and unregulated marketers must therefore fail.
C
GMC also suggests that Ohio's tax regime "facially discriminates" because the State's sales and use tax exemption would not apply to sales by out-of-state LDC's. See, e. g., Reply Brief for Petitioner 2, n. 1. As respondent points out, however, the Ohio courts might well extend the challenged exemption to out-of-state utilities if confronted with the question. Indeed, in Carnegie Natural Gas Co. v. Tracy, No. 94-K-526 (Ohio Bd. Tax App., Nov. 17, 1995), reported in CCH Ohio Tax Rep. ¶ 402-254, the Ohio Board of Tax Appeals accepted the argument of a Pennsylvania public util-
Page: Index Previous 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 NextLast modified: October 4, 2007