author: Justice Brennan

text:
    NORTHWEST CENTRAL PIPELINE CORP. v. STATE CORPORATION COMMISSION OF KANSAS et al.
    No. 86-1856.
    Argued November 29, 1988
    Decided March 6, 1989

      Brennan, J., delivered the opinion for a unanimous Court.

      Harold, L. Talisman argued the cause for appellant. With him on the briefs were Bobby Potts, Lewis A. Posekany, Jr., John H. Cary, Jeffrey D. Komarow, Michael E. Small, and Mark H. Adams II.

      Frank A. Caro, Jr., argued the cause for appellee. With him on the brief was Shari M. Feist.

      Michael R. Lazerwitz argued the cause for the United States and the Federal Energy Regulatory Commission as amici curiae urging affirmance. With him on the brief were Solicitor General Fried, Deputy Solicitor General Merrill, Harriet S. Shapiro, Catherine C. Cook, Jerome M. Feit, John H. Conway, and Timm L. Abendroth.

      Briefs of amici curiae urging affirmance were filed for the Council of State Governments et al. by Benna Ruth Solomon; Beate Bloch, and Robert F. Shapiro; for the Interstate Oil Compact Commission by Richard C. Byrcl and IT. Timothy Dowd; and for the Railroad Commission of Texas et al. by Hal Stratton, Attorney General of New Mexico, Robert G. Stovall, Assistant Attorney General, Nicholas J. Spaeth, Attorney General of North Dakota, Lindil C. Fowler, Jr., G. Gail Watkins, and David B. Robinson.

   Justice Brennan

delivered the opinion of the Court.

In this appeal, we must decide whether a regulation adopted by the State Corporation Commission of Kansas (KCC) to govern the timing of production of natural gas from the Kansas-Hugoton field violates either the Supremacy or the Commerce Clause of the Constitution. We hold that it does not.

I

At issue is a KCC regulation providing for the permanent cancellation of producers’ entitlements to quantities of Kansas-Hugoton gas. Designed as a counterweight to market, contractual, and regulatory forces that have led interstate pipelines to cut back purchases from Kansas-Hugoton producers, the KCC’s regulation seeks to encourage timely production of gas quotas by providing that the right to extract assigned amounts of gas will permanently be lost if production is too long delayed. Appellant Northwest Central Pipeline Corporation, an interstate pipeline, argues that the KCC’s regulation is pre-empted by federal regulation of the interstate natural gas business because it exerts pressure on pipelines to increase purchases from Hugoton producers and so affects their purchase mixes and cost structures, and because it impinges on exclusive federal control over the abandonment of gas reserves dedicated to interstate commerce. Northwest Central also urges that the regulation violates the Commerce Clause because it coerces pipelines to give Kansas producers a larger share of the interstate gas market at the expense of producers in other States, or, alternatively, causes the diversion of gas from the interstate to the intrastate market.

A

Kansas’ regulation of the Hugoton field is an effort to solve perplexing problems in assigning and protecting property rights in a common pool of gas and in preventing waste of limited natural resources. Gas migrates from high-pressure areas of a pool around shut-in (or slow-producing) wells to low-pressure areas around producing (or faster producing) wells. As a consequence of this phenomenon a single producing well might exhaust an entire gas pool, though rights in the pool belong to many different owners. Absent countervailing regulation or agreement among all owners, the fact that gas migrates to low-pressure, heavily produced areas creates an incentive for an owner to extract gas as fast as possible, in order both to prevent other owners draining gas it might otherwise produce, and to encourage migration to its own wells that will enable it to capture a disproportionate share of the pool. A rush to produce, however, may cause waste. For example, gas may be produced in excess of demand; more wells may be drilled than are necessary for the efficient production of the pool; or the field may be depleted in such a way that it is impossible to recover all potentially available mineral resources (in particular oil, which is recovered using reservoir energy often supplied by associated natural gas reserves). See generally McDonald, Prorationing of Natural Gas Production: An Economic Analysis, 57 U. Colo. L. Rev. 153 (1985-1986).

The common-law rule of capture, whereby gas was owned by whoever produced it from the common pool, left unchecked these twin problems of perceived inequities between owners of rights in the pool and of waste resulting from strong economic disincentives to conserve resources. Ibid. In response, producing States like Kansas have abandoned the rule of capture in favor of assigning more equitable correlative rights among gas producers and of directly regulating production so as to prevent waste. Kansas by statute prohibits waste, Kan. Stat. Ann. §55-701 (1983); directs the KCC to “regulate the taking of natural gas from any and all common sources of supply within this state in order to prevent the inequitable or unfair taking of natural gas from a common source of supply,” Kan. Stat. Ann. §55-703(a) (Supp. 1987); and gives content to the concept of equitable taking of natural gas by obliging the KCC to regulate so that producers

“may produce only that portion of all the natural gas that may be currently produced without waste and to satisfy the market demands, as will permit each developed lease to ultimately produce approximately the amount of gas underlying the developed lease and currently produce proportionately with other developed leases in the common source of supply without uncompensated cognizable drainage between separately-owned, developed leases or parts thereof.” Ibid.

Pursuant to statutory authority, the KCC in 1944 adopted the Basic Proration Order for the Hugoton field, after finding that uncompensated drainage caused by disproportionate production had impaired the correlative rights of owners of developed Hugoton leases. See Basic Proration Order ¶¶ (d) — (f), App. 9-11. The object of the order was to fix a formula for determining well production quotas or “allow-ables” at such a level that, without waste, “each developed lease will be enabled to currently produce its . . . allowable so that ultimately such developed lease will have an opportunity to produce approximately the amount of gas which underlies such lease.” App. 7; see also Basic Proration Order ¶(j), App. 17. To this end, the KCC was to set a monthly gas production ceiling for the Kansas-Hugoton field based on estimates of market demand, and to assign a portion of this production to individual wells as an allowable in an amount keyed to the acreage served by the well and to the well’s “deliverability,” or ability to put gas into a pipeline against pipeline pressure (a factor that increases with wellhead pressure). Id., ¶¶(g) — (1), App. 11-22.

The Hugoton Basic Proration Order also allows for tolerances in the production of a well’s allowable to account for underproduction or overproduction, which may be caused by variations in demand for a producer’s gas. If a well produces less than its allowable it accrues an “underage.” If it produces more than its allowable it accrues an “overage.” Kansas’ achievement of its goal that each well should have the opportunity eventually to produce approximately the gas underlying the developed lease depends upon drainage occurring over time to compensate for any accrued underage or overage. At issue in this case is the constitutionality of the regulation the KCC adopted in 1983 to encourage production of, and hence compensating drainage for, vast underages that it found had accrued as a result of pipelines’ decisions to .use the Hugoton field for storage while taking gas for current needs from elsewhere.

Prior to the 1983 amendment, the Basic Proration Order for the Hugoton field provided that underages were canceled after they reached six or nine times the monthly allowable, depending upon the adjusted deliverability of the well, but that canceled underages could readily be reinstated so as in effect to be available for use at any time. Id., ¶(p), App. 23-24. Under this regulatory scheme, however, the Hugo-ton field had become greatly underproduced, with noncan-celed underages totaling 204 billion cubic feet and canceled and unreinstated underages totaling 314 billion cubic feet as of September 1, 1982. App. to Juris. Statement 74a, 76a. It also appeared that the field was seriously imbalanced, because some producers had accrued substantial overages during the same period. App. 128-130.

This underproduction and imbalance resulted from a combination of interrelated market, contractual, and regulatory factors. Kansas-Hugoton gas is substantially dedicated by long-term contract to five interstate pipelines, including appellant Northwest Central. These pipelines purchase gas from Kansas producers for transportation and resale outside the State. A sixth major purchaser of Kansas-Hugoton gas is the Kansas Power and Light Company, which buys gas for the intrastate market.

The interstate pipelines generally entered into their current contracts to purchase Kansas-Hugoton gas at a time when the market was little developed and oligopsonic. These contracts usually provide for relatively low prices and do not contain “take-or-pay” provisions requiring the purchaser to pay for some minimum quantity of gas irrespective of whether it takes current delivery. Since these contracts were made, however, the gas market has gone through considerable changes. See Pierce, State Regulation of Natural Gas in a Federally Deregulated Market: The Tragedy of the Commons Revisited, 73 Cornell L. Rev. 15, 18-20 (1987). Following a period of federal maintenance of low wellhead price ceilings under the Natural Gas Act (NGA), 52 Stat. 821, as amended, 15 U. S. C. § 717 et seq., an acute shortage of natural gas during the 1970’s prompted Congress to enact the Natural Gas Policy Act of 1978 (NGPA), 92 Stat. 3352, 15 U. S. C. §3301 et seq. To encourage production, the NGPA took wellhead sales of “new” and “high-cost” gas outside the coverage of the NGA, § 601(a)(1)(B), 15 U. S. C. § 3431(a) (1)(B), and provided instead for market-driven wellhead pricing, at first up to a high ceiling, and later with no ceiling. See § 102(b), 15 U. S. C. § 3312(b) (new gas ceilings); § 103(b), 15 U. S. C. § 3313(b) (high-cost gas ceilings); §121, 15 U. S. C. §3331 (elimination of price controls). Many pipelines responded to the availability of new, higher priced deregulated gas by committing themselves to long-term contracts at high prices that required them to take-or-pay for a large part of a producer’s contractually dedicated gas reserves. When the market dwindled in the early 1980’s, interstate pipelines reduced their takes under contracts with Kansas-Hugoton producers for “old,” low-priced gas, in large part because these contracts included no take-or-pay penalty. As a result, production from parts of the field fell. In effect, interstate purchasers began to use the Hugoton field for storage while they took gas for their immediate needs from elsewhere — a practice facilitated by paragraph (p) of the Hugoton Basic Proration Order, which permitted stored gas to be produced more or less at any time.

At the same time, however, Kansas-Hugoton producers dependent upon other purchasers in different contractual and market situations suffered no cutback in takes and indeed accumulated substantial overages. See Pierce, 73 Cornell L. Rev., at 47. For example, wells produced by Mesa Petroleum Company delivering gas for the intrastate market to the Kansas Power and Light Company were overproduced by 2.6 billion cubic feet by late 1982. Northwest Central Pipeline Corp. v. Kansas Corp. Comm’n, 237 Kan. 248, 252, 699 P. 2d 1002, 1008 (1985). See App. 128-130.

The substantial Hugoton underages and field imbalance prompted a KCC investigation. After conducting a hearing, the KCC, on February 16, 1983, issued the order challenged in this case, amending paragraph (p) of the Basic Proration Order to provide for the permanent cancellation of underages in certain circumstances. The KCC determined that the imbalance between overproduced and underproduced Hugo-ton wells was causing drainage between wells that posed a threat to the correlative rights of producers. The KCC further found that, were permanent cancellation of underages the alternative to their timely production, existing underages might be reduced, future underages deterred, and balance restored to the field. App. to Juris. Statement 72a-75a. As Mr. Ron Cook, a member of the KCC’s staff, explained in his testimony at the hearing, producers that had accrued substantial underages might never be able to produce them without a rule change, and hence might not be able to benefit from their correlative rights to a proportionate share of the field’s reserves:

“Correlative rights have been and are currently being violated by the uncompensated drainage that is occurring due to the unratable taking of allowables between offsetting leases. Future projection of gas production from the Hugoton Field indicate [s] that this trend of accumulating more underage and cancelled underage will continue for a number of years.
“There is a definite possibility that near the end of many of the wells[’] productive li[ves], there will be a tremendous amount of cancelled underage that will never be reinstated due to the physical inability of the wells to make up such underage. This will result in a greater violation of correlative rights, because under the present provisions of Paragraph P of the basic order, there is no incentive to reinstate cancelled underage in a timely manner in order to prevent the large volumes of underage which will be cancelled permanently at the time the well is abandoned.
“Therefore, it is the intent of the staff’s proposed amendment to paragraph (p)] to provide an incentive for the producer and purchaser to run more gas in order to prevent more underage being cancelled and to establish ... a timely manner in which to begin reinstating and making up previously cancelled underage.” App. 35-36; see also Pierce, 73 Cornell L. Rev., at 47.

Thus, the purpose of the new regulation was to “instill the incentive for the purchasers and the producers to run more gas out of the field,” App. 44, in order that Kansas producers with underages might produce their current allowables and accumulated underage and obtain compensating drainage, id., at 49, prior to the field’s exhaustion, see id., at 48.

B

The natural gas industry is subject to interlocking regulation by both federal and state authorities. The NGA continues to govern federal regulation of “old” gas — gas already dedicated to interstate commerce when the NGPA was enacted and not otherwise excluded from federal regulation— including most Kansas-Hugoton gas. NGA § 1(b), 15 U. S. C. § 717(b), provides for exclusive Federal Energy Regulatory Commission (FERC) jurisdiction over “the transportation of natural gas in interstate commerce, . . . the sale in interstate commerce of natural gas for resale . . . , and . . . natural-gas companies engaged in such transportation or sale.” This jurisdiction encompasses regulation of market entry through FERC’s authority to issue certificates of public convenience and necessity authorizing pipelines to transport and sell gas in interstate commerce, NGA §7(e), 15 U. S. C. §717f(e), and of market exit through FERC’s control over the abandonment of certificated interstate service. NGA § 7(b), 15 U. S. C. §717f(b). FERC’s powers also extend to enforcing wellhead price ceilings for old gas, now set forth in §§ 104 and 106(a) of the NGPA, 15 U. S. C. §§3314 and 3316(a); and to regulating other terms of sales of regulated gas for resale, ensuring that rates, and practices and contracts affecting rates, are just and reasonable. NGA §§4 and 5, 15 U. S. C. §§ 717c and 717d; see NGPA § 601(a), 15 U. S. C. § 3431(a). Pursuant to these powers FERC regulates the mix of purchases by natural gas pipelines. See, e. g., Northwest Central Pipeline Corp., 44 FERC ¶ 61,222 (1988), aff’g 33 FERC ¶63,067 (1985) (finding various of appellant’s purchasing practices to be prudent). A pipeline’s purchase mix affects both its costs and the prices for which it sells its gas, see, e. g., Columbia Gas Transmission Corp., 43 FERC ¶61,482 (1988) (average cost of gas purchases passed through to pipeline’s customers), and so comes within FERC’s exclusive authority under the NGA “to regulate the wholesale pricing of natural gas in the flow of interstate commerce from wellhead to delivery to consumers.” Maryland v. Louisiana, 451 U. S. 725, 748 (1981).

Section 1(b) of the NGA, 15 U. S. C. § 717(b), also expressly carves out a regulatory role for the States, however, providing that the States retain jurisdiction over intrastate transportation, local distribution, and distribution facilities, and over “the production or gathering of natural gas.”

Relying on Northern Natural Gas Co. v. State Corporation Comm’n of Kansas, 372 U. S. 84, 90-93 (1963), for the proposition that the federal regulatory scheme pre-empts state regulations that may have either a direct or indirect effect on matters within federal control, Northwest Central challenged the new paragraph (p) of the Basic Proration Order on the grounds that, though directed to producers, it impermis-sibly affects interstate pipelines’ purchasing mix and hence price structures, and requires the abandonment of gas dedicated to interstate commerce, both matters within FERC’s jurisdiction under the NGA. On rehearing, the KCC dismissed this challenge, distinguishing Northern Natural because the rule at issue there had directly regulated purchasers; the purpose of the amendment to paragraph (p), on the other hand, “is to prevent waste, protect the correlative rights of mineral interests owners and promote the orderly-development of the field, functions clearly reserved to the states under the production exemption of the [NGA]. The February 16th order does not require pipelines purchasers to do anything or refrain from doing anything.” App. to Juris. Statement 87a. On petition for judicial review, the District Court of Gray County, Kansas, found that the change in paragraph (p) would provide an incentive to purchasers to take more Kansas-Hugoton gas, and as a result would “cause a change in the 'mix’ of natural gas which pipelines transport for sale many miles away.” Id., at 58a. But despite the new order’s probable consequences for pipeline purchasing practices and price structures, the District Court held that it fell within the production and gathering exemption of NGA § 1(b), 15 U. S. C. § 717(b), because it was directed to gas producers, which were the subject of the threatened cancellation of allowables. Id., at 59a. The Kansas Supreme Court affirmed on the same ground. Northwest Central Pipeline Corp. v. Kansas Corp. Comm’n, 237 Kan. 248, 699 P. 2d 1002 (1985). It stated that the challenged order “obviously is intended for purchasers.” Id., at 266, 699 P. 2d, at 1017. Nevertheless, the court held that because the order directly related to producers’ allowables, and because “the matter of allowables must be construed to pertain to production^ t]he rules on underages are a part of production regulation and thus are not violative of the [NGA], even though purchasers are indirectly caught in the backwash.” Id., at 267, 699 P. 2d, at 1017.

We vacated the Kansas Supreme Court’s judgment, Northwest Central Pipeline Corp. v. Corporation Comm’n of Kansas, 475 U. S. 1002 (1986), and remanded for further consideration in light of our decision in Transcontinental Pipe Line Corp. v. State Oil and Gas Bd. of Mississippi, 474 U. S. 409 (1986) (Transco) — a case in which we had declared the post-NGPA vitality of Northern Natural’s holding that state regulations requiring purchasers to take gas ratably from producers are pre-empted by the federal regulatory power over pipelines’ costs and purchasing patterns. See n. 8, supra. On remand, the Kansas Supreme Court reaffirmed its prior decision, distinguishing Transco, as it had Northern Natural, on the ground that the state regulation in that case governed the actions of purchasers rather than producers. It held that as a regulation of producers, aimed primarily at the production of gas rather than at its marketing, paragraph (p), as amended, was not pre-empted. 240 Kan. 638, 645-646, 732 P. 2d 775, 780 (1987). We noted probable jurisdiction, 486 U. S. 1021 (1988), and now affirm.

II

Congress has the power under the Supremacy Clause of Article VI of the Constitution to pre-empt state law. Determining whether it has exercised this power requires that we examine congressional intent. In the absence of explicit statutory language signaling an intent to pre-empt, we infer such intent where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law, Rice v. Santa Fe Elevator Corp., 331 U. S. 218 (1947), or where the state law at issue conflicts with federal law, either because it is impossible to comply with both, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 142-143 (1963), or because the state law stands as an obstacle to the accomplishment and execution of congressional objectives, Hines v. Davidowitz, 312 U. S. 52, 67 (1941). See Schneidewind v. ANR Pipeline Co., 485 U. S. 293, 299-300 (1988); Louisiana Public Service Comm’n v. FCC, 476 U. S. 355, 368-369 (1986); Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm’n, 461 U. S. 190, 203-204 (1983). Paragraph (p) of the Hugoton Basic Proration Order regulates in a field that Congress expressly left to the States; it does not conflict with the federal regulatory scheme; hence it is not pre-empted.

A

We first consider appellant’s claim that Kansas’ paragraph (p) regulates in a field occupied by Congress, because it intrudes upon FERC’s continuing authority under the NGA and NGPA comprehensively to regulate the transportation and prices of “old” gas sold in interstate commerce and to oversee interstate pipelines’ purchasing mixes.

When it enacted the NGA, Congress carefully divided up regulatory power over the natural gas industry. It “did not envisage federal regulation of the entire natural-gas field to the limit of constitutional power. Rather it contemplated the exercise of federal power as specified in the Act.” FPC v. Panhandle Eastern Pipe Line Co., 337 U. S. 498, 502-503 (1949). Indeed, Congress went so far in § 1(b) of the NGA, 15 U. S. C. § 717(b), as to prescribe not only “the intended reach of the [federal] power, but also [to] specif [y] the areas into which this power was not to extend.” 337 U. S., at 503. Section 1(b) conferred on federal authorities exclusive jurisdiction “over the sale and transportation of natural gas in interstate commerce for resale,” Northern Natural, 372 U. S., at 89, at the same time expressly reserving to the States the power to regulate, among other things “the production or gathering of natural gas,” that is, “the physical acts of drawing gas from the earth and preparing it for the first stages of distribution.” Id., at 90.

It has long been recognized that absent pre-emptive federal legislation or regulation, States may govern the production of natural resources from a common pool, in order to curb waste and protect the correlative rights of owners, by prorating production among the various wells operating in a field. See Champlin Refining Co. v. Corporation Comm’n of Oklahoma, 286 U. S. 210 (1932); Thompson v. Consolidated Gas Utilities Corp., 300 U. S. 55 (1937). The power “to allocate and conserve scarce natural resources” remained with the States after the enactment of the NGA, as a result of the system of dual state and federal regulation established in § 1(b) of that Act. Northern Natural, supra, at 93. The terms “production and gathering” in § 1(b) are sufficient in themselves to reserve to the States not merely “control over the drilling and spacing of wells and the like,” Colorado Interstate Gas Co. v. FPC, 324 U. S. 581, 603 (1945), but also the power to regulate rates of production over time — a key element, after all, in efforts to prevent waste and protect correlative rights. In any event, the legislative history of the NGA, explored at length in our decision in Panhandle Eastern, supra, makes plain Congress’ intent not to interfere with the States’ power in that regard. The Solicitor of the Federal Power Commission (FPC), the predecessor of FERC, assured Congress that an earlier bill substantially similar to the NGA did “not attempt to regulate the gathering rates” of gas producers, that being a matter of purely local concern. Hearings on H. R. 11662 before a Subcommittee of the House Committee on Interstate and Foreign Commerce, 74th Cong., 2d Sess., 34 (1936); see Panhandle Eastern, supra, at 505, n. 7. And more generally, the legislative history of the NGA is replete with assurances that the Act “takes nothing from the State [regulatory] commissions: they retain all the State power they have at the present time,” 81 Cong. Rec. 6721 (1937); see also Panhandle Eastern, supra, at 509-512, and n. 15 — power that included the proration of gas production in aid of conservation and the protection of correlative rights.

In considering whether Kansas in amending paragraph (p) has moved into a field that Congress has marked out for comprehensive and exclusive federal control, we naturally must remember the express jurisdictional limitation on FERC’s powers contained in § 1(b) of the NGA. Cf. Louisiana Public Service Comm’n, 476 U. S., at 370. That section fences off from FERC’s reach the regulation of rates of gas production in “language . . . certainly as sweeping as the wording of the provision declaring . . . [FERC’s] role.” Ibid. The NGA “was designed to supplement state power and 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 Pipeline Co., 337 U. S., at 513 (footnotes omitted). To avoid encroachment on the powers Congress intended to reserve to the States, we must be careful that we do not “by an extravagant . . . mode of interpretation push powers granted over transportation and rates so as to include production.” Id., at 513-514.

To find that Congress occupies the field in which Kansas’ regulation operates would be to engage in just such an extravagant interpretation of the scope of federal power. Paragraph (p) is directed to the behavior of gas producers, and regulates their rates of production as a means of exercising traditional state control over the conservation of natural resources and the protection of correlative rights. To be sure, it specifically provides that producers’ accrued under-ages will be canceled if not used within a certain period, and it is expected that this may result in pipelines making purchasing decisions that have an effect on their cost structures and hence on interstate rates. But paragraph (p) operates as one element in a proration scheme of precisely the sort that Congress intended by § 1(b) to leave within a State’s authority, and in fact amounts to an effort to encourage producers to extract the allowables assigned under that pro-ration scheme. It would be strange indeed to hold that Congress intended to allow the States to take measures to prorate production and set allowables in furtherance of legitimate conservation goals and in order to protect property rights, but that — because enforcement might have some effect on interstate rates —it did not intend that the States be able to enforce these measures by encouraging actual production of allowables. In analyzing whether Kansas entered a pre-empted field, we must take seriously the lines Congress drew in establishing a dual regulatory system, and we conclude that paragraph (p) is a regulation of “production or gathering” within Kansas’ power under the NGA.

By paying due attention to-Congress’ intent that the States might continue to regulate rates of production in aid of conservation goals and the protection of producers’ correlative rights, we may readily distinguish Northern Natural and Transco, upon which appellant mainly relies. In both those cases we held state regulations requiring gas purchasers to take gas ratably from producers were pre-empted, because they impinged on the comprehensive federal scheme regulating interstate transportation and rates. Northern Natural, 372 U. S., at 91-93; Transco, 474 U. S., at 422-424. In Northern Natural, we held that ratable-take orders “invalidly invade[d] the federal agency’s exclusive domain” precisely because they were “unmistakably and unambiguously directed at purchasers.” 372 U. S., at 92 (emphasis in original). Interstate pipelines operate within the field reserved under the NGA for federal regulation, buying gas in one State and transporting it for resale in another, so inevitably the States are pre-empted from directly regulating these pipelines in such a way as to affect their cost structures. Ibid. Likewise in Transco, in which we considered whether the rule in Northern Natural had survived deregulation of many interstate rates by the NGPA, we held that federal authority over transportation and rates — now expressed in a determination that rates should be unregulated and settled by market forces — continued to occupy the field and to preempt state ratable-take orders directed to pipelines and forcing upon them certain purchasing patterns. 474 U. S., at 422-424.

In both Northern Natural and Transco, States had crossed the dividing line so carefully drawn by Congress in NGA § 1(b) and retained in the NGPA, trespassing on federal territory by imposing purchasing requirements on interstate pipelines. In this case, on the contrary, Kansas has regulated production rates in order to protect producers’ correlative rights — a matter firmly on the States’ side of that dividing line. To find field pre-emption of Kansas’ regulation merely because purchasers’ costs and hence rates might be affected would be largely to nullify that part of NGA § 1(b) that leaves to the States control over production, for there can be little if any regulation of production that might not have at least an incremental effect on the costs of purchasers in some market and contractual situations. Congress has drawn a brighter line, and one considerably more favorable to the States’ retention of their traditional powers to regulate rates of production, conserve resources, and protect correlative rights.

B

Congress’ decision that the interstate natural gas industry should be subject to a dual regulatory scheme must also inform consideration of appellant’s claim that paragraph (p) is pre-empted because it conflicts with federal law regulating purchasers’ cost structures. Congress has expressly divided regulatory authority between the States and the Federal Government in NGA § 1(b), though the production and interstate transportation and sale of gas “has to operate as a unitary enterprise.” FPC v. Fast Ohio Gas Co., 338 U. S. 464, 488 (1950) (Jackson, J., dissenting). It is inevitable that “jurisdictional tensions [will] arise as a result of the fact that [state and federally regulated elements coexist within] a single integrated system,” Louisiana Public Service Comm’n, 476 U. S., at 375 — particularly since gas is often produced under contracts, like those binding many Hugoton producers, that leave it to the purchaser to establish the rate of production through its decisions on takes. In the integrated gas supply system, these jurisdictional tensions will frequently appear in the form of state regulation of producers and their production rates that has some effect on the practices or costs of interstate pipelines subject to federal regulation. Were each such effect treated as triggering conflict pre-emption, this would thoroughly undermine precisely the division of the regulatory field that Congress went to so much trouble to establish in § 1(b), and would render Congress’ specific grant of power to the States to regulate production virtually meaningless.

Thus, conflict-pre-emption analysis must be applied sensitively in this area, so as to prevent the diminution of the role Congress reserved to the States while at the same time preserving the federal role. State regulation of production may be pre-empted as conflicting with FERC’s authority over interstate transportation and rates if it is impossible to comply with both state and federal law; if state regulation prevents attainment of FERC’s goals; or if a state regulation’s impact on matters within federal control is not an incident of efforts to achieve a proper state purpose. Schneidewind v. ANR Pipeline, 485 U. S., at 299-300, 308-309. That Kansas sought to protect correlative rights and balance the Hugoton field by regulating producers in such a way as to have some impact on the purchasing decisions and hence costs of interstate pipelines does not without more result in conflict pre-emption; and we are not persuaded that either the particular nature of paragraph (p)’s effect on pipelines’ costs or its relationship to the attainment of legitimate state goals creates a conflict with federal law that requires preemption.

Northwest Central has not asserted that there exists any conflict so direct that it is impossible for pipelines to comply with both paragraph (p) and with federal regulation of purchasing practices and pricing. It does argue, however, that Kansas’ threat to cancel underages prevents the attainment of FERC’s regulatory goals. Paragraph (p) imposes no purchasing requirements on pipelines, but simply defines producers’ rights to produce gas from the Kansas-Hugoton field. Though Kansas hopes that its redefinition of production rights will increase purchasers’ takes from the field, and though increased takes may affect pipelines’ costs, any regulation of production rates by the States has potential impact on pipeline purchasing decisions and costs, and it is clear that Congress in the NGA intended federal regulation to take account of state laws defining production rights — not automatically to supersede them. Supra, at 510-511. Thus the Federal Government assures us that in its continuing regulation of old-gas rates and in its oversight of the prudence of appellant’s purchase mix, FERC will recognize Kansas’ order as part of the environment in which appellant conducts its business, and will make its own decisions with that in mind. Brief for United States et al. as Amici Curiae 21-22. There may be circumstances in which the impact of state regulation of production on matters within federal control is so extensive and disruptive of interstate commerce in gas that federal accommodation must give way to federal preemption, but this is not one of them. Indeed, it appears that if paragraph (p) operates as a spur to greater production of low-cost Hugo ton gas, this would be entirely congruous with current federal goals.

The congressionally designed interplay between state and federal regulation under the NGA does not, however, permit States to attempt to regulate pipelines’ purchasing decisions in the mere guise of regulating production. See Sckneidewind, supra, at 308-309 (holding pre-empted a state law “whose central purpose is to regulate matters that Congress intended FERC to regulate”). The NGA does not require FERC to regulate around a state rule the only purpose of which is to influence purchasing decisions of interstate pipelines, however that rule is labeled. Such a rule creates a conflict rather than demands an accommodation. Where state law impacts on matters within FERC’s control, the State’s purpose must be to regulate production or other subjects of state jurisdiction, and the means chosen must at least plausibly be related to matters of legitimate state concern.

In this case, the KCC’s avowed purpose in adopting paragraph (p) was to protect the correlative rights of Kansas producers. The protection of correlative rights is a matter traditionally for the States, often pursued through the regulation of production. The production regulation chosen by the KCC — threatening cancellation of underages to encourage pipelines to increase their takes from the Kansas-Hugoton field — was plausibly related to its stated and legitimate goal of protecting correlative rights. A KCC staff member cogently explained how the KCC believed that the threat permanently to cancel allowables would improve the field’s balance and increase the likelihood that producers would eventually be able to extract the gas underlying their leases. Supra, at 504-505.

Appellant nevertheless suggests that the KCC’s asserted purpose to protect correlative rights of underproduced operators is suspect, because its regulation will worsen correlative rights problems if in fact underages are cancelled. Brief for Appellant 30; Reply Brief for Appellant 5. It is true that if underages are permanently canceled, the producers who suffer cancellation may have less rather than more opportunity to produce the gas underlying their leases prior to the field’s exhaustion, absent further meliorative regulation. It is also true that there was some evidence before the KCC suggesting that some pipelines might not increase their takes in response to the possible cancellation of underages, and that correlative rights might thus be harmed as a result of the new regulation. See Northwest Central Pipeline Corp. v. Kansas Corp. Comm’n, 237 Kan., at 261-262, 699 P. 2d, at 1014. The KCC’s assumption that paragraph (p) would likely increase production was not implausible, however, and the Kansas Supreme Court specifically held that although the assumption was “controverted, there is evidence in the record to support [it].” 240 Kan., at 646, 732 P. 2d, at 780. We cannot conclude that paragraph (p) lacks a proper state purpose, nor that it is so weakly related to such purpose that, because of its effect on federally regulated purchasing practices and pricing, it must be pre-empted.

c

Northwest Central further argues that paragraph (p) is pre-empted by federal regulation of the abandonment of natural gas. Section 7(c) of the NGA, 15 U. S. C. §717f(c), requires that producers who sell natural gas to pipelines for resale in interstate commerce must obtain a certificate of public convenience and necessity from FERC. Section 7(b) of the Act, 15 U. S. C. § 717f(b), obligates certificated producers to continue supplying gas in the interstate market until FERC authorizes an abandonment. See United Gas Pipe Line Co. v. McCombs, 442 U. S. 529 (1979); California v. Southland Royalty Co., 436 U. S. 519, 523-524 (1978). Although the NGPA eliminated FERC’s authority to control abandonment of deregulated gas, “old” Hugoton gas remains under FERC’s § 7(b) control. Appellant’s claims are, first, that a producer’s available reserves are a factor in FERC’s decision whether to certificate interstate service, and that an abandonment of gas without FERC’s approval undercuts FERC’s certification process; and, second, that permanent cancellation of underages under paragraph (p) will lead to drainage from reserves dedicated to interstate commerce to wells operated by currently overproduced operators who supply the intrastate market, thus effectuating the permanent abandonment of gas reserves certificated to the interstate market.

Insofar as appellant’s argument is that cancellation of underages pursuant to paragraph (p) will work an abandonment through the noncompensable drainage of dedicated reserves, and that Kansas therefore regulates in a field Congress has fully occupied, it is plainly meritless. This is so even if it is assumed that permanent cancellation of underage will in fact occur under paragraph (p), and that the KCC’s belief that purchasers will instead increase their takes proves to have been too optimistic. The KCC’s regulation governs the rights of producers to take gas from the Hugoton field, and determining rates of production is a matter squarely within the State’s jurisdiction under NGA § 1(b). Supra, at 510-511. FERC’s abandonment authority necessarily encompasses only gas that operators have a right under state law to produce. Appellant’s premise — that the reserves of dedicated leases may not be abandoned without FERC approval — thus fails to support the conclusion it draws, for exactly what the producible reserves underlying a lease at any given moment consist in is a question of state law, settled in Kansas by the KCC’s assignment of allowables and by its regulation of tolerances in producing those allowables.

Nor is there merit to appellant’s argument interpreted as a claim that paragraph (p) stands as an obstacle to the objective Congress sought to attain when it gave FERC authority over certification and abandonment — “to assure the public a reliable supply of gas.” United Gas Pipe Line Co. v. Mc- Combs, supra, at 536. Unless clear damage to federal goals would result, FERC’s exercise of its authority must accommodate a State’s regulation of production. Here, Kansas is seeking to ensure that producers in fact have an opportunity to produce all the reserves underlying their leases before the Hugoton field is exhausted, by encouraging timely production. If a producer’s gas is dedicated to interstate commerce, the effect Kansas reasonably hopes to achieve by paragraph (p) is that the dedicated gas will in fact be extracted and so will enter interstate commerce. That goal is entirely harmonious with the aim of federal certification and control of abandonment.

Ill

Northwest Central also argues that paragraph (p) of the Basic Proration Order violates the Commerce Clause. Its first claim is that the KCC’s regulation amounts to per se unconstitutional economic protectionism. Appellant contends that whatever the pipelines’ reactions to the regulation, Kansas interests will benefit, and at the expense of interstate pipelines or of producers in other States. If the threat to cancel underages coerces interstate pipelines into increasing their takes from Kansas-Hugoton producers, those purchasers will have to take less gas from producers in other States. If, on the other hand, interstate pipelines fail to increase their takes in response to paragraph (p), then underages will permanently be canceled, and interstate purchasers will be unable as a result to obtain compensating drainage for the substantial overages that producers for the Kansas intrastate market have accrued. Alternatively, Northwest Central asserts that even if not a per se violation of the Commerce Clause, paragraph (p) must nevertheless be struck down upon application of the balancing test set forth in Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). Neither argument persuades us.

We have applied a “virtually per se rule of invalidity” against state laws that amount to “simple economic protectionism,” Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978), and have found such protectionism when a state law “directly regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests,” Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573, 579 (1986). See also Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 471-472 (1981). On its face, paragraph (p) is neutral, providing for the cancellation of underages of producers irrespective of whether they supply the intrastate or interstate market. In that respect it is entirely unlike the statute we struck down in Pennsylvania v. West Virginia, 262 U. S. 553 (1923), which required pipelines to meet the demand of local consumers before supplying the interstate market. If paragraph (p) is unconstitutional per se, it must therefore be because of its effects.

The effects appellant suggests paragraph (p) might have on interstate commerce would be incident, however, to Kansas’ efforts to regulate production to prevent waste and protect correlative rights — under the powers saved to the States in NGA §l(b), 15 U. S. C. § 717(b), — by prorating production, setting allowables, and encouraging their production. See supra, at 510-511. Any regulatory encouragement to produce allowables in a timely manner may impact on a purchaser’s distribution of its takes as among the producing States, as the purchaser reacts in light of its contractual and market situations, and of federal and other States’ regulations. Congress cannot but have contemplated that state oversight of production would have some effect on interstate commerce. There would be little point to § l(b)’s reservation to the States of power over production rates if the inevitable repercussions of States’ exercise of this power in the arena of interstate commerce meant a State could not constitutionally enforce its proration orders. We are not prepared to render meaningless Congress’ sweeping saving of power over production to the States by holding that a regulation intended to protect correlative rights by encouraging production of allowables, aimed at producers and requiring nothing of purchasers, per se violates the dormant Commerce Clause because purchasers have to take it into account in deciding whence to take gas and may as a result increase takes from in-state producers. Cf. Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 421-427 (1946) (recognizing Congress’ power to specify that state action affecting interstate commerce does not violate the Commerce Clause).

Moreover, current federal policy is to encourage the production of low-cost gas, so that were paragraph (p) to increase takes from Kansas at the expense of States producing more costly gas, this would not according to FERC disrupt interstate commerce, but would improve its efficiency. See supra, at 518, and n. 15. “It thus appears that whatever effect the operation of [paragraph (p)] may have on interstate commerce, it is one which it has been the policy of Congress to aid and encourage through federal agencies in conformity to the [NGA and NGPA].” Parker v. Brown, 317 U. S. 341, 368 (1943). In Parker, we rejected a Commerce Clause challenge to a state regulation adopted under powers reserved to the States to control agricultural production. Though the regulation had an effect on interstate commerce, that effect was not “greater than or substantially different in kind from that contemplated by . . . programs authorized by federal statutes.” Ibid. We held that in light of that congruity, we could not “say that the effect of the state program on interstate commerce is one which conflicts with Congressional policy or is such as to preclude the state from this exercise of its reserved power to regulate domestic agricultural production.” Ibid. We reach a similar conclusion here.

It is true that Kansas may fail in its efforts to encourage production of underages by threatening their cancellation, and noncompensable drainage to producers for the intrastate market may occur in consequence, absent further corrective regulation. But whether events will take this turn is a matter of pure speculation, cf. Brown-Forman Distillers, supra, at 583, contingent upon whether interstate purchasers, analyzing a multitude of market, regulatory, and contractual factors, decide it is economically beneficial to disregard Kansas’ incentive timely to produce allowables. The Kansas Supreme Court held that the KCC’s assumption that paragraph (p) likely would lead to increased takes by interstate purchasers was supported by evidence in the record, and any diversion of gas to the intrastate markets that might follow the cancellation of underages would be an unwanted, unexpected, and incidental effect of the KCC’s legitimate endeavor to regulate production in the service of correlative rights. To strike down the KCC’s production regulation as per se unconstitutional on the basis of such indirect and speculative effects on interstate commerce “would not accomplish the effective dual regulation Congress intended, and would permit appellant to prejudice substantial local interests. This is not compelled by the . . . Commerce Clause of the Constitution.” Panhandle Eastern Pipe Line Co. v. Michigan Public Service Comm’n, 341 U. S. 329, 337 (1951).

Even if not per se unconstitutional, a state law may violate the Commerce Clause if it fails to pass muster under the balancing test outlined in Pike v. Bruce Church, Inc. Provided the challenged law “regulates evenhandedly to effectuate a legitimate local public interest,” however, “and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” 397 U. S., at 142. Paragraph (p) of the Hugoton Proration Order applies evenhandedly, without regard to whether a producer supplies the intrastate or interstate market, see Minnesota v. Clover Leaf Creamery Co., 449 U. S., at 471-472, and is an exercise of Kansas’ traditional and congressionally recognized power over gas production. The paragraph’s intended effect of increasing production from the Hugoton field, even granting that reduced takes from other States would result, is not “clearly excessive” in relation to Kansas’ substantial interest in controlling production to prevent waste and protect correlative rights; and the possibility that paragraph (p) may result in the diversion of gas to intrastate purchasers is too impalpable to override the State’s weighty interest. We likewise reject Northwest Central’s claim that paragraph (p) must be invalidated under Pike, supra, at 142, because Kansas could have achieved its aims without burdening interstate commerce simply by establishing production allowables in line with Northwest Central’s conception of market demand levels. Appellant has not challenged the KCC’s determination of allowables, see n. 19, supra, and it identifies nothing in the record in this proceeding that could provide an adequate basis for determining that the KCC might have achieved its goals as effectively had it adopted a different formula for setting allowables, with a different approach to calculating market demand.

Paragraph (p) of the KCC’s Basic Proration Order for the Hugoton field violates neither the Supremacy nor the Commerce Clause of the Constitution, and the judgment of the Kansas Supreme Court is

Affirmed.

       The KCC determines market demand levels twice a year based upon an analysis of “reasonable, current requirements for consumption and use within and without the state over a six-month period, the open flow production, a series of nominations by producers, and requirement requests by purchasers.” Lungren, Natural Gas Prorationing in Kansas, 57 U. Colo. L. Rev. 251, 257-258 (1985-1986) (footnotes omitted). The KCC thus does not regard itself as bound to treat pipelines’ expected takes as the measure of market demand for the purpose of assigning allowables.

       As the Kansas Supreme Court explained the process of compensatory drainage in this case:
      “When a well is underproduced in relation to its allowable, and relative to the other wells which are producing their allowables, its pressure becomes higher. If this condition is permitted to continue over a period of time, drainage occurs from the underproduced well with the higher pressure to the low pressure area of the overproduced wells. As pressure is a major component in determining adjusted deliverability, the pressure differences result in a higher adjusted deliverability for the underproduced wells with a resulting increase in the current allowable. When the larger allowable and underage is produced, the well's pressure drops below the other wells and compensating drainage occurs. After the pressure drop the adjusted deliverability for the well is decreased with a resulting decrease in its allowable. This is the technique utilized in the attempt to keep the wells in balance in the long pull.” Northwest Central Pipeline Corp. v. Kansas Corp. Comm’n, 237 Kan. 248, 251, 699 P. 2d 1002, 1007 (1985), vacated and remanded, 475 U. S. 1002 (1986), on remand, 240 Kan. 638, 732 P. 2d 775 (1987).

       Prior to amendment, paragraph (p) provided that canceled underages “ ‘will be reinstated upon verified application therefore, showing that the wells are in an overproduced status; that the purchaser is willing and able to take the amounts of gas; and that the length of time proposed by applicant for the production of the amounts of gas to be reinstated is reasonable under the circumstances.”’ App. 24.

       Take-or-pay provisions
      “essentially requir[e] [pipelines] either to accept currently a certain percentage of the gas each well [is] capable of producing, or to pay the contract price for that gas with a right to take delivery at some later time, usually limited in duration. Take-or-pay provisions enable sellers to avoid fluctuations in cash flow and are therefore thought to encourage investment in well development.” Transcontinental Gas Pipe Line Corp. v. State Oil and Gas Bd. of Mississippi, 474 U. S. 409, 412 (1986) (Transco).

       Order of Feb. 16, 1983, App. to Juris. Statement 63a-80a, aff'd on rehearing, Order of Apr. 18, 1983, App. to Juris. Statement 81a-92a. As the Kansas Supreme Court explained:
      “The amendments to paragraph (p) in dispute here divide the cancelled underage in the field into three categories: (1) underage cancelled prior to January 1, 1975; (2) underage cancelled between January 1, 1975, and December 31, 1982; and (3) underage cancelled after December 31, 1982. For each of the categories of underage the [KCC] established requirements to be met by producers seeking to have such underage reinstated. For the pre-1975 cancelled underage, a producer was required to make application for reinstatement... on or before December 31, 1983. For 1975 to 1982 cancelled underage, reinstatment must be requested by December 31, 1985. For underage cancelled after December 31, 1982, the producer has three years from the date of cancellation to apply for reinstatement. For any producer to request reinstatement of underage cancelled after 1974, the affected well must be in an overproduced status. Any underage not reinstated, or if reinstated not produced at the end of the alloted time period, will be cancelled permanently. A producer has sixty months in which to produce the reinstated underage.” 237 Kan., at 253, 699 P. 2d, at 1008-1009.
      The KCC has since amended paragraph (p) again, to make it easier for a producer to have underages reinstated and to find a buyer for its gas. The requirements that the well for which application for reinstatement is made be in an overproduced status, and that the applicant identify the purchaser for the gas have been removed to enhance producers’ ability to participate in the open “spot” market. See Order of Sept. 16, 1987, App. to Brief for Appellee 7a-16a.

       The KCC also stated that the quantity of underages had simply made it too difficult to administer the field to achieve statutorily defined goals: “In the future, it will be practically impossible to ascertain the balance of the field if underages relate backward in perpetuity. Some sort of benchmark is necessary if the Commission is to effectively balance takes from the field.” App. to Juris. Statement 76a.

       The KCC plainly stated that its intent in adopting the 1983 amendment to paragraph (p) was to protect producers’ correlative rights. But its attempt to explain the precise relationship between its order and such rights — as opposed to the explanation offered by its staff member Mr. Cook, quoted in the text — foundered upon a misconstruction of the Kansas law defining correlative rights. The KCC apparently believed the amendment would protect the correlative rights of producers who were producing their current allowables “to participate in a given market for a given period of time.” Id., at 73a. Because adjusted deliverability varies with well pressure, see supra, at 500, and n. 2, a heavily producing operator’s share of the field allowable falls as its well pressure falls in relation to that of shut-in wells. App. to Juris. Statement 73a and 75a; see also App. 128-129. If all wells produce their allowables, however, pressure will decrease uniformly over the field and these fluctuations in producers’ shares of field allowables — and hence in their ability to participate in the market at a particular time — will not occur. The KCC’s view that this was desirable depended upon an assumption that correlative rights inhere in current production, rather than in production over the life of the field. The Kansas Supreme Court expressly disapproved that construction of state law in this case. 237 Kan., at 256-257, 699 P. 2d, at 1010-1011. The court held, though, that the KCC’s error did not undermine its order because the order did not in fact conform to the KCC’s new definition of correlative rights in current production (and indeed the court believed that no workable order could do so, since it was not possible for the KCC to “force current equal production from all wells in the common source of supply,” id., at 257, 699 P. 2d, at 1011). Instead; the court decided, paragraph (p) conformed to the statutory definition of correlative rights as a producer’s right eventually to recover the gas underlying its leases, id., at 256-257, 699 P. 2d, at 1011, apparently for the reasons Mr. Cook stated in his testimony, see id., at 261-263, 699 P. 2d, at 1014-1015.

       Under the NGA, FERC engaged in “‘utility-type ratemaking’ control over prices and supplies,” Transco, 474 U. S., at 420. Though the NGPA removed from affirmative federal control the wellhead price of new and high-cost gas, nevertheless it “did not compromise the comprehensive nature of federal regulatory authority over interstate gas transactions,” Schneidewind v. ANR Pipeline Co., 485 U. S. 293, 300, n. 6 (1988), and this Court held in Transco that Congress’ intent in the NGPA that the supply, the demand, and the price of deregulated gas be determined by market forces requires that the States still may not regulate purchasers so as to affect their cost structures. 474 U. S., at 422-423.

       The legislative history of the NGPA also demonstrates that Congress viewed the States’ power to prorate production as having survived enactment of the NGPA. The House Energy Committee Chairman told Congress that the NGPA “does not contemplate that FERC will intrude into the traditional conservation functions performed by the states. This is a matter reserved to the state agencies who, in the exercise of their historical powers, will continue to regulate such matters as . . . production rates.” 124 Cong. Rec. 38366 (1978).

       Appellant would also find support for its position in Schneidewind. Schneidewind held that the NGA pre-empted Michigan’s regulation of securities issued by interstate pipelines and other natural gas companies engaged in interstate commerce because the regulation fell within an exclusively federal domain. However, not only was the regulation at issue in that ease directed to interstate gas companies, but it also had as its central purposes the maintenance of their rates at what the State considered a reasonable level, and their provision of reliable service. 485 U. S., at 306-309. Unlike Kansas’ regulation here, Michigan’s could not plausibly be said to operate in the field expressly reserved by the NGA to the States.

       We noted in Northern Natural that States have alternatives to purchaser-directed ratable-take orders as means of checking waste and disproportionate taking, and specifically mentioned “proration and similar orders directed at producers.” 372 U. S., at 94-95, n. 12.

       Nevertheless, conflict-pre-emption analysis is to be applied, even though Congress assigned regulation of the production sphere to the States and Kansas has acted within its assigned sphere. When we declined in Louisiana Public Service Comm’n v. FCC, 476 U. S. 355 (1986), to reach a claim by the FCC that its regulation of depreciation practices pre-empted state depreciation rules because these were an obstacle to accomplishment of federal objectives, we were faced with a far different situation. In that case, which also involved a dual regulatory scheme, we held that in seeking to pre-empt state depreciation practices, the FCC had acted in an area over which Congress had explicitly denied it jurisdiction. Id., at 374. Moreover, we recognized in Louisiana Public Service Comm’n that the possibility of jurisdictional tensions had been foreseen by Congress, which had established a process designed to resolve such tensions. Id., at 375. In these circumstances, where the FCC lacked jurisdiction to act in the very area in which it was claiming to have power to pre-empt state law, and wfhere in any event the federal statute provided a mechanism for resolving jurisdictional conflicts, a conflict-pre-emption analysis had no proper place. In the present case, however, it is argued that there is a potential for conflict even though each agency acts only within its assigned sphere, and there is no provision in the statute itself to resolve jurisdictional tensions. Only by applying conflict-pre-emption analysis can we be assured that both state and federal regulatory schemes may operate with some degree of harmony.

       Appellant’s brief may conceivably be interpreted as claiming that it is impossible to comply with paragraph (p) and with federal prudent-purchasing requirements. That claim lacks merit for the reasons set out at n. 14, infra, but also for a more basic reason: paragraph (p) requires nothing of pipelines, and a state regulation that imposes no obligations on pipelines obviously cannot make it “impossible” for them to comply with federal law.

       Appellant argues that FERC’s approval of its purchasing practices in the Kansas-Hugoton field as prudent, Northwest Central Pipeline Corp., 44 FERC *161,222 (1988), demonstrates that the KCC rule seeking to prompt a change in those practices conflicts with federal goals. This argument is faulty for two reasons. First, a determination that it was prudent of Northwest Central to preserve low-cost Hugoton gas in favor of filling immediate needs with purchases under take-or-pay contracts in no way implies that it would have been imprudent for the pipeline to purchase a different mix of gas. Second, FERC’s decision presupposed the continuing availability of stored reserves. Id., at p. 61,825. As explained in the text, the prudence of purchasing mixes varies with the state regulatory environment. A ruling that a mix purchased in one regulatory environment is prudent obviously says little if anything about what would be prudent in a quite- different environment.

       FERC has itself acted to encourage the production of low-cost gas, changing its rules on the abandonment of dedicated reserves to allow producers whose gas is committed to purchasers who do not wish to take it to sell their gas elsewhere, and attempting to give producers access to pipeline systems as a means of transporting their gas to willing buyers. Brief for United States et al. as Amici Curiae 4-5, 23. See Pierce, State Regulation of Natural Gas in a Federally Deregulated Market: The Commons Revisited, 73 Cornell L. Rev. 15, 20 (1987).

       Changes in paragraph (p) since this litigation began tend to confirm that the KCC is seeking to protect producers’ correlative rights. As explained in n. 5, supra, the KCC has relaxed its requirements for the reinstatement of underages and made it easier for a producer to sell its gas.

       Section 7(b) provides:
      “No natural-gas company shall abandon all or any portion of its facilities subject to the jurisdiction of the Commission, or any service rendered by means of such facilities, without the permission and approval of the Commission first had and obtained, after due hearing, and a finding by the Commission that the available supply of natural gas is depleted to the extent that the continuance of service is unwarranted, or that the present or future public convenience or necessity permit such abandonment.”
      We have said that it is “beyond argument” that the proscription of abandoning “any service” rendered by facilities under federal jurisdiction “would include both transportation and sale” of dedicated gas reserves, United Gas Pipe Line Co. v. FPC, 385 U. S. 83, 87 (1966), and have noted that § 7(b) “simply does not admit of any exception to the statutory procedure.” United Gas Pipe Line Co. v. McCombs, 442 U. S., at 536.

       Pursuant to §§ 104, 106(a), and 601(a) of the NGPA, 15 U. S. C. §§ 3314, 3316(a), and 3431(a), “gas reserves dedicated to interstate commerce before November 8, 1978, remain subject to §7(b) of the Natural Gas Act.” United Gas Pipe Line Co. v. McCombs, supra, at 536, n. 9.

       The United States suggests that appellant’s premise is false, as well as its conclusion, because gas is not dedicated and so subject to FERC’s abandonment authority until it is actually produced at the wellhead. Brief for United States et al. as Amici Curiae 24-25. As appears in the text, we find no need to consider this contention.

       Northwest Central asserts, as part of its argument that paragraph (p) violates the Commerce Clause, that the KCC has discriminated against interstate purchasers by setting allowables in excess of their market demands. Appellant claims this has resulted in large underages for interstate producers, while operators supplying the intrastate market have been able to overproduce and create drainage in their favor; and that the effect of paragraph (p) is to cement this discrimination for all time by preventing interstate operators from producing their underages and so obtaining compensating drainage. We note, however, as did the Kansas Supreme Court, Northwest Central Pipeline Co. v. Kansas Corp. Comm’n, 237 Kan., at 257, 699 P. 2d, at 1011, that Northwest Central did not in this ease challenge the level at which allowables were set, and that the KCC’s calculation of allowables is not in issue here.


source: Caselaw Access Project

author: Justice White

license: Public Domain

text:
    KARAHALIOS v. NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1263
    No. 87-636.
    Argued January 17, 1989
    Decided March 6, 1989

      White, J., delivered the opinion for a unanimous Court.

      Thomas R. Duffy argued the cause for petitioner. With him on the briefs were Glenn M. Taubman and Todd G. Brower.

      H. Stephen Gordon argued the cause fpr respondent. With him on the brief were David Silbennan and Laurence Gold.

      Richard G. Taranto argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Fried, Deputy Solicitor General Wallace, William E. Persina, and Arthur A. Horowitz.

        Gregory O’Duden and Elaine Kaplan filed a brief for the National Treasury Employees Union as amicus curiae urging affirmance.

   Justice White

delivered the opinion of the Court.

The question before the Court is whether Title VII of the Civil Service Reform Act of 1978 (CSRA or Act), 5 U. S. C. § 7101 et seq. (1982 ed. and Supp. IV), confers on federal employees a private cause of action against a breach by a union representing federal employees of its statutory duty of fair representation. Because we decide that Congress vested exclusive enforcement authority over this duty in the Federal Labor Relations Authority (FLRA) and its General Counsel, we agree with the Court of Appeals that no private cause of action exists. Hence we affirm.

Petitioner, Efthimios Karahalios, is a Greek language instructor for the Defense Language Institute/Foreign Language Center, Presidio of Monterey, California (Institute). Karahalios was not a union member but was within a bargaining unit of professional employees for which respondent, the National Federation of Federal Employees, Local 1263 (Union), was the exclusive bargaining agent. In 1976, the Institute reopened its “course developer” position, for which opening Karahalios applied. Previously, the position had been occupied by one Simon Kuntelos, who had been demoted to instructor in 1971, when the Institute first abolished the course developer position. Because Kuntelos declined to seek the reopened job through the competitive application process, Karahalios won the position after scoring 81 on the required examination.

Kuntelos filed a grievance, asserting that the Institute’s job award to Karahalios infringed the collective-bargaining agreement, and that Kuntelos should have been assigned the position without a competitive application process. The Union agreed to arbitrate on behalf of Kuntelos (a Union board member), and successfully argued that the position be declared vacant for refilling. Because promotion selection procedures had altered, Kuntelos was permitted considerably more time on the examination. He scored 83, and in May 1978, the Institute reassigned the course developer opening to Kuntelos and demoted Karahalios to instructor-ship status.

The Institute denied Karahalios’ direct protest against the substitution; likewise, the Union refused to prosecute his grievances because of a perceived conflict of interest with its previous Kuntelos advocacy. Karahalios filed unfair labor practice charges with the FLRA challenging both adverse decisions: He alleged, first, that the Institute violated its collective-bargaining agreement; and, second, that the Union breached its duty of fair representation. The General Counsel of the FLRA upheld Karahalios’ second charge, and ordered that a complaint be issued against the Union. The Union and the FLRA’s Regional Director, however, entered into a settlement whereby the Union posted notice guaranteeing representation to all employees seeking a single position. The General Counsel rejected Karahalios’ contention on appeal that the settlement provided him no relief.

Karahalios then filed a damages suit in the District Court, restating his charges against the Institute and the Union. The District Court, in its first of three published orders, dismissed on jurisdictional grounds Karahalios’ claim against the Institute, but declared judicially cognizable his unfair labor practice charge against the Union. Specifically, the District Court held that 28 U. S. C. § 1331 supports jurisdiction because the CSRA’s grant of exclusive union representation impliedly supplies to federal employees a private right of action to safeguard their right to fair representation. After trial, the District Court ruled that the Union’s actions — notably its decisions to arbitrate for Kuntelos without consulting, or even notifying, Karahalios, and, subsequently, to refuse to represent Karahalios — breached its duty of fair representation owed to him. The court confined damages to attorney’s fees, however, explaining that both applicants were too similarly matched to allow judicial distinction.

The Court of Appeals reversed, stating that the CSRA’s statutory scheme, which creates both an express duty of fair representation and a remedy in the FLRA for infringement of this duty, precludes implication of a parallel right to sue in federal courts. We granted Karahalios’ petition for certio-rari. 486 U. S. 1041 (1988).

Prior to 1978, labor relations in the federal sector were governed by a 1962 Executive Order administered by a Federal Labor Relations Council whose decisions were not subject to judicial review. Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U. S. 89, 91-92 (1983). Since 1978, Title VII of the CSRA has been the controlling authority. Of particular relevance here, 5 U. S. C. § 7114(a)(1) provides that a labor organization that has been accorded the exclusive right of representing employees in a designated unit “is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.” This provision is “virtually identical” to that found in the Executive Order and is the source of the collective-bargaining agent’s duty of fair representation. See National Federation of Federal Employees, Local 1453, 23 F. L. R. A. 686, 690 (1986). This duty also parallels the fair representation obligation of a union in the private sector that has been found implicit in the National Labor Relations Act (NLRA), 49 Stat. 449, as amended, 29 U. S. C. § 151 et seq. (1982 ed. and Supp. IV), and the Railway Labor Act (RLA), 44 Stat. 577, as amended, 45 U. S. C. § 151 et seq. See Vaca v. Sipes, 386 U. S. 171, 180-183 (1967); Steele v. Louisville & Nashville R. Co., 323 U. S. 192, 205-207 (1944).

Title VII also makes it clear that a breach of the duty of fair representation is an unfair labor practice, for it provides that it is “an unfair labor practice for a labor organization . . . to otherwise fail or refuse to comply with any provision of this chapter.” §7116(b)(8). Under §7118, unfair labor practice complaints are adjudicated by the FLRA, which is authorized to order remedial action appropriate to carry out the purposes of Title VII, including an award of backpay against either the agency or the labor organization that has committed the unfair practice.

There is no express suggestion in Title VII that Congress intended to furnish a parallel remedy in a federal district court to enforce the duty of fair representation. The Title provides recourse to the courts in only three instances: with specified exceptions, persons aggrieved by a final FLRA order may seek review in the appropriate court of appeals, § 7123(a); the FLRA may seek judicial enforcement of its orders, § 7123(b); and temporary injunctive relief is available to the FLRA to assist it in the discharge of its duties, § 7123(d).

Petitioner nevertheless insists that a cause of action to enforce the Union’s fair representation duty should be implied. Such a claim poses an issue of statutory construction: The “ultimate issue is whether Congress intended to create a private cause of action,” California v. Sierra Club, 451 U. S. 287, 293 (1981) (citations omitted); see also Touche Ross & Co. v. Redington, 442 U. S. 560, 569 (1979). Unless such “congressional intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist.” Thompson v. Thompson, 484 U. S. 174 (1988). It is also an “elemental canon” of statutory construction that where a statute expressly provides a remedy, courts must be especially reluctant to provide additional remedies. Trans-america Mortgage Advisers, Inc. v. Lewis, 444 U. S. 11, 19 (1979). In such cases, “[i]n the absence of strong indicia of contrary congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate.” Middlesex County Sewerage Authority v. Sea Clammers, 453 U. S. 1, 15 (1981); see also Massachusetts Mutual Life Ins. Co. v. Russell, 473 U. S. 134, 147 (1985); Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 93 (1981).

These guideposts indicate that the Court of .Appeals was quite correct in concluding that neither the language nor the structure of the Act shows any congressional intent to provide a private cause of action to enforce federal employees unions’ duty of fair representation. That duty is expressly recognized in the Act, and an administrative remedy for its breach is expressly provided for before the FLRA, a body created by Congress to enforce the duties imposed on agencies and unions by Title VII, including the duty of fair representation. Nothing in the legislative history of Title VII has been called to our attention indicating that Congress contemplated direct judicial enforcement of the union’s duty. Indeed, the General Counsel of the FLRA was to have exclusive and final authority to issue unfair labor practice complaints, and only those matters mentioned in § 7123 were to be judicially reviewable. H. R. Rep. No. 95-1403, p. 52 (1978). All complaints of unfair labor practices were to be filed with the FLRA. S. Rep. No. 95-969, p. 107 (1978). Furthermore, Title VII contemplates the arbitration of unsettled grievances, but a House proposal that the duty to ar- ■ bitrate could be enforced in federal court in the first instance was ultimately rejected. See H. R. Conf. Rep. No. 95-1717, p. 157 (1978). There exists no equivalent to § 301 of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U. S. C. § 185, which permits judicial enforcement of private collective-bargaining contracts.

Petitioner, however, relies on another source to find the necessary congressional intent to provide him with a cause of action. Petitioner urges that Title VII was modeled after the NLRA and that the authority of the FLRA was meant to be similar to that of the National Labor Relations Board (NLRB). Because this Court found implicit in the NLRA a private cause of action against unions to enforce their fair representation duty even after the NLRB had construed the NLRA to make a breach of the duty an unfair labor practice, petitioner argues that Congress must have intended to preserve this judicial role under Title VII. Much of the argument rests on our decision in Vaca v. Sipes, supra. There are, however, several difficulties with this argument.

In the first place, Title VII is not a carbon copy of the NLRA, nor is the authority of the FLRA the same as that of the NLRB. The NLRA, like the RLA, did not expressly make a breach of the duty of fair representation an unfair labor practice and did not expressly provide for the enforcement of such a duty by the NLRB. That duty was implied by the Court because members of bargaining units were forced to accept unions as their exclusive bargaining agents. Because employees had no administrative remedy for a breach of the duty, we recognized a judicial cause of action on behalf of the employee. This occurred both under the RLA, Steele v. Louisville & Nashville R. Co., supra; Trainmen v. Howard, 343 U. S. 768 (1952), and also under the LMRA, Syres v. Oil Workers, 350 U. S. 892 (1955); Vaca v. Sipes, supra. Very dissimilarly, Title VII of the CSRA not only expressly recognizes the fair representation duty but also provides for its administrative enforcement.

To be sure, prior to Vaca, the NLRB had construed §§7 and 8(b) of the NLRA to impose a duty of fair representation on union bargaining agents and to make its breach an unfair labor practice. See Miranda Fuel Co., 140 N. L. R. B. 181 (1962), enf. denied, NLRB v. Miranda Fuel Co., 326 F. 2d 172 (CA2 1963). The issue in Vaca, some years later, was whether, in light of Miranda Fuel Co., the courts still had jurisdiction to enforce the unions’ duty. As we understood our inquiry, it was whether Congress, in enacting § 8(b) in 1947, had intended to oust the courts of their role of enforcing the duty of fair representation implied under the NLRA. We held that the “tardy assumption” of jurisdiction by the NLRB was insufficient reason to abandon our prior cases, such as Syres.

In the case before us, there can be no mistaking Congress’ intent to create a duty previously without statutory basis, and no mistaking the authority of the FLRA to enforce that duty. Also, because the courts played no role in enforcing a union’s fair representation duty under Executive Order No. 11491 §10e, 3 CFR 861 (1966-1970 Comp.), and subsequent amended orders, under the pre-CSRA regulatory regime, there was not in this context any pre-existing judicial role that at least arguably Congress intended to preserve.

Moreover, in Vaca and the earlier cases, it was stressed that by providing for exclusive bargaining agents, the pertinent statutes deprived bargaining unit employees of their individual rights to bargain for wages, hours, and working conditions. Hence it was critical that unions be required to represent all in good faith. Again, Title VII operates in a different context. As the United States as amicus explains, federal employment does not rest on contract in the private sector sense; nor is it clear that the deprivation a federal employee suffers from the election of a bargaining agent — if there is such a deprivation — is comparable to the private sector predicament. Moreover, the collective-bargaining mechanisms created by Title VII do not deprive employees of recourse to any of the remedies otherwise provided by statute or regulation. See the CSRA, 5 U. S. C. §§ 7114(a)(5) and 7121(e)(1).

We also note that Vaca rested in part on the fact that private collective-bargaining contracts were enforceable in the federal courts under LMRA §301. Because unfair representation claims most often involve a claim of breach by the employer and since employers are suable under § 301, the implied fair representation cause of action allows claims against an employer and a union to be adjudicated in one action. Section 301 has no equivalent under Title VII; there is no provision in that Title for suing an agency in federal court.

We therefore discern no basis for finding congressional intent to provide petitioner with a cause of action against the Union. Congress undoubtedly was aware from our cases such as Cort v. Ash, 422 U. S. 66 (1975), that the Court had departed from its prior standard for resolving a claim urging that an implied statutory cause of action should be recognized, and that such issues were being resolved by a straightforward inquiry into whether Congress intended to provide a private cause of action. Had Congress intended the courts to enforce a federal employees union’s duty of fair representation, we would expect to find some evidence of that intent in the statute or its legislative history. We find none. Just as in United States v. Fausto, 484 U. S. 439, 445 (1988), we held that the CSRA’s “integrated scheme of administrative and judicial review” foreclosed an implied right to Court of Claims review, we follow a similar course here. See also Bush v. Lucas, 462 U. S. 367, 388 (1983). To be sure, courts play a role in CSRA § 7116(b)(8) fair representation cases, but only sitting in review of the FLRA. To hold that the district courts must entertain such cases in the first instance would seriously undermine what we deem to be the congressional scheme, namely to leave the enforcement of union and agency duties under the Act to the General Counsel and the FLRA and to confine the courts to the role given them under the Act.

Accordingly the judgment of the Court of Appeals is

Affirmed.

       Section 7114(a)(1) reads, in full: “A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents, and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit. An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.”

       The Executive Order precursor provision likewise was interpreted to impose on federal unions the duty of fair representation. See National Federation of Federal Employees, Local 1153, 23 F. L. R. A., at 690.

       Because such orders were not legislative, courts generally refused judicial enforcement. See, e. g.. Kuhn v. National Association of Letter Carriers, Branch 5, 570 F. 2d 757, 760-761 (CA8 1978).


author: Justice Marshall

text:
    BLANTON et al. v. CITY OF NORTH LAS VEGAS, NEVADA
    No. 87-1437.
    Argued January 9, 1989
    Decided March 6, 1989

      Marshall, J., delivered the opinion for a unanimous Court.

      John J. Graves, Jr., argued the cause for petitioners. With him on the briefs was John G. Watkins.

      Mark L. Zalaoras argued the cause for respondent. With him on the brief was Roy A. Woofter.

        Dan C. Bowen and John A. Poivell filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Fried, Acting Assistant Attorney General Dennis, Deputy Solicitor General Bryson, Michael R. Lazenvitz, and Louis M. Fischer; for the State of Nevada by Brian McKay, Attorney General, and Brian Randall Hutchins, Chief Deputy Attorney General; for the State of New Jersey by W. Cary Edwards, Attorney General, and Boris Moczula, Larry R. Etzweiler, and Cherrie Madden Black, Deputy Attorneys General; for the city of Las Vegas, Nevada, by George F. Ogilvie; and for the Louisiana District Attorneys Association by Dorothy A. Pendergast.

   Justice Marshall

delivered the opinion of the Court.

The issue in this case is whether there is a constitutional right to a trial by jury for persons charged under Nevada law with driving under the influence of alcohol (DUI). Nev. Rev. Stat. §484.379(1) (1987). We hold that there is not.

DUI is punishable by a minimum term of two days’ imprisonment and a maximum term of six months’ imprisonment. §484.3792(l)(a)(2). Alternatively, a trial court may order the defendant “to perform 48 hours of work for the community while dressed in distinctive garb which identifies him: as [a DUI offender].” Ibid. The defendant also must pay a fine ranging from $200 to $1,000. § 484.3792(l)(a)(3). In addition, the defendant automatically loses his driver’s license for 90 days, §483.460(l)(c), and he must attend, at his own expense, an alcohol abuse education course. §484.3792(1) (a)(1). Repeat DUI offenders are subject to increased penalties.

Petitioners Melvin R. Blanton and Mark D. Fraley were charged with DUI in separate incidents. Neither petitioner had a prior DUI conviction. The North Las Vegas, Nevada, Municipal Court denied their respective pretrial demands for a jury trial. On appeal, the Eighth Judicial District Court denied Blanton’s request for a jury trial but, a month later, granted Fraley’s. Blanton then appealed to the Supreme Court of Nevada, as did respondent city of North Las Vegas with respect to Fraley. After consolidating the two cases along with several others raising the same issue, the Supreme Court concluded, inter alia, that the Federal Constitution does not guarantee a right to a jury trial for a DUI offense because the maximum term of incarceration is only six months and the maximum possible fine is $1,000. 103 Nev. 623, 748 P. 2d 494 (1987). We granted certiorari to consider whether petitioners were entitled to a jury trial, 487 U. S. 1203 (1988), and now affirm.

It has long been settled that “there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision.” Duncan v. Louisiana, 391 U. S. 145, 159 (1968); see also District of Columbia v. Clawans, 300 U. S. 617, 624 (1937); Callan v. Wilson, 127 U. S. 540, 557 (1888). In determining whether a particular offense should be categorized as “petty,” our early decisions focused on the nature of the offense and on whether it was triable by a jury at common law. See, e. g., District of Columbia v. Colts, 282 U. S. 63, 73 (1930); Callan, supra, at 555-557. In recent years, however, we have sought more “objective indications of the seriousness with which society regards the offense.” Frank v. United States, 395 U. S. 147, 148 (1969). “[W]e have found the most relevant such criteria in the severity of the maximum authorized penalty.” Baldwin v. New York, 399 U. S. 66, 68 (1970) (plurality opinion); see also Duncan, supra, at 159. In fixing the maximum penalty for a crime, a legislature “include[s] within the definition of the crime itself a judgment about the seriousness of the offense.” Frank, supra, at 149. The judiciary should not substitute its judgment as to seriousness for that of a legislature, which is “far better equipped to perform the task, and [is] likewise more responsive to changes in attitude and more amenable to the recognition and correction of their misperceptions in this respect.” Landry v. Hoepfner, 840 F. 2d 1201, 1209 (CA5 1988) (en banc), cert. pending, No. 88-5043.

In using the word “penalty,” we do not refer solely to the maximum prison term authorized for a particular offense. A legislature’s view of the seriousness of an offense also is reflected in the other penalties that it attaches to the offense. See United States v. Jenkins, 780 F. 2d 472, 474, and n. 3 (CA4), cert. denied, 476 U. S. 1161 (1986). We thus examine “whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial.” Duncan, supra, at 161 (emphasis added); see also Frank, 395 U. S., at 152 (three years’ probation is not “onerous enough to make an otherwise petty offense ‘serious’”). Primary emphasis, however, must be placed on the maximum authorized period of incarceration. Penalties such as probation or a fine may engender “a significant infringement of personal freedom,” id., at 151, but they cannot approximate in severity the loss of liberty that a prison term entails. Indeed, because incarceration is an “intrinsically different” form of punishment, Muniz v. Hoffman, 422 U. S. 454, 477 (1975), it is the most powerful indication of whether an offense is “serious.”

Following this approach, our decision in Baldwin established that a defendant is entitled to a jury trial whenever the offense for which he is charged carries a maximum authorized prison term of greater than six months. 399 U. S., at 69; see id., at 74-76 (Black, J., concurring in judgment). The possibility of a sentence exceeding six months, we determined, is “sufficiently severe by itself” to require the opportunity for a jury trial. Id., at 69, n. 6. As for a prison term of six months or less, we recognized that it will seldom be viewed by the defendant as “trivial or ‘petty.’” Id., at 73. But we found that the disadvantages of such a sentence, “onerous though they may be, may be outweighed by the benefits that result from speedy and inexpensive nonjury adjudications.” Ibid.; see also Duncan, supra, at 160.

Although we did not hold in Baldwin that an offense carrying a maximum prison term of six months or less automatically qualifies as a “petty” offense, and decline to do so today, we do find it appropriate to presume for purposes of the Sixth Amendment that society views such an offense as “petty.” A defendant is entitled to a jury trial in such circumstances only if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a “serious” one. This standard, albeit somewhat imprecise, should ensure the availability of a jury trial in the rare situation where a legislature packs an offense it deems “serious” with onerous penalties that nonetheless “do not puncture the 6-month incarceration line.” Brief for Petitioners 16.

Applying these principles here, it is apparent that petitioners are not entitled to a jury trial. The maximum authorized prison sentence for first-time DUI offenders does not exceed six months. A presumption therefore exists that the Nevada Legislature views DUI as a “petty” offense for purposes of the Sixth Amendment. Considering the additional statutory penalties as well, we do not believe that the Nevada Legislature has clearly indicated that DUI is a “serious” offense.

In the first place, it is immaterial that a first-time DUI offender may face a minimum term of imprisonment. In settling on six months’ imprisonment as the constitutional demarcation point, we have assumed that a defendant convicted of the offense in question would receive the maximum authorized prison sentence. It is not constitutionally determinative, therefore, that a particular defendant may be required to serve some amount of jail time less than six months. Likewise, it is of little moment that a defendant may receive the maximum prison term because of the prohibitions on plea bargaining and probation. As for the 90-day license suspension, it, too, will be irrelevant if it runs concurrently with the prison sentence, which we assume for present purposes to be the maximum of six months.

We are also unpersuaded by the fact that, instead of a prison sentence, a DUI offender may be ordered to perform 48 hours of community service dressed in clothing identifying him as a DUI offender. Even assuming the outfit is the source of some embarrassment during the 48-hour period, such a penalty will be less embarrassing and less onerous than six months in jail. As for the possible $1,000 fine, it is well below the $5,000 level set by Congress in its most recent definition of a “petty” offense, 18 U. S. C. §1 (1982 ed., Supp. IV), and petitioners do not suggest that this congressional figure is out of step with state practice for offenses carrying prison sentences of six months or less. Finally, we ascribe little significance to the fact that a DUI offender faces increased penalties for repeat offenses. Recidivist penalties of the magnitude imposed for DUI are commonplace and, in any event, petitioners do not face such penalties here.

Viewed together, the statutory penalties are not so severe that DUI must be deemed a “serious” offense for purposes of the Sixth Amendment. It was not error, therefore, to deny petitioners jury trials. Accordingly, the judgment of the Supreme Court of Nevada is

Affirmed.

       A restricted license may be issued after 45 days which permits the defendant to travel to and from work, to obtain food and medicine, and to receive regularly scheduled medical care. §483.490(2).

       A second DUI offense is punishable by 10 days to six months in prison. § 484.3792(l)(b). The second-time offender also must pay a fine ranging from $500 to $1,000, ibid., and he loses his driver’s license for one year. § 483.460(l)(b)(5). A third DUI offense is punishable by a minimum term of one year’s imprisonment and a maximum term of six years’ imprisonment. § 484.3792(l)(e). The third-time offender also roust pay from $2,000 to $5,000, ibid., and he loses his driving privileges for three years. §483.460(l)(a)(2).
      A prosecutor may not dismiss a DUI charge “in exchange for a plea of guilty or nolo contendere to a lesser charge or for any other reason unless he knows or it is obvious” that there is insufficient evidence to prove the offense. § 484.3792(3). Trial courts may not suspend sentences or impose probation for DUI convictions. Ibid.

       Accordingly, the Supreme Court of Nevada remanded Blanton’s case with instructions to proceed without a jury trial. Because Fraley pleaded guilty to DUI before he took an appeal to the District Court, the Supreme Court remanded his case with instructions to reinstate his conviction.

       The Sixth Amendment right to a jury trial applies to the States through the Fourteenth Amendment. Duncan v. Louisiana, 391 U. S. 145 (1968).

       Our decision to move away from inquiries into such matters as the nature of the offense when determining a defendant’s right to a jury trial was presaged in District of Columbia v. Clawans, 300 U. S. 617, 628 (1937), where we stated: “Doubts must be resolved, not subjectively by recourse of the judge to his own sympathy and emotions, but by objective standards such as may be observed in the laws and practices of the community taken as a gauge of its social and ethical judgments.” Our adherence to a common-law approach has been undermined by the substantial number of statutory offenses lacking common-law antecedents. See Landry v. Hoepfner, 840 F. 2d 1201, 1209-1210 (CA5 1988) (en banc), cert. pending, No. 88-5043; United States v. Woods, 450 F. Supp. 1335, 1345 (Md. 1978); Brief for United States as Amicus Curiae 18.

       In criminal contempt prosecutions, “where no maximum penalty is authorized, the severity of the penalty actually imposed is the best indication of the seriousness of the particular offense.” Frank, 395 U. S. at, 149.

       We held “only that a potential sentence in excess of six months’ imprisonment is sufficiently severe by itself to take the offense out of the category of ‘petty.’” Baldwin v. New York, 399 U. S., at 69, n. 6 (plurality opinion) (emphasis added); see also Codispoti v. Pennsylvania, 418 U. S. 506, 512, n. 4 (1974).

       In performing this analysis, only penalties resulting from state action, e. g., those mandated by statute or regulation, should be considered. See Note, The Federal Constitutional Right to Trial by Jury'for the Offense of Driving While Intoxicated, 73 Minn. L. Rev. 122,149-150 (1988) (nonstatu-tory consequences of a conviction “are speculative in nature, because courts cannot determine with any consistency when and if they will occur, especially in the context of society’s continually shifting moral values”).

       It is unclear whether the license suspension and prison sentence in fact run concurrently. See Nev. Rev. Stat. §483.460(1) (1987). But even if they do not, we cannot say that a 90-day license suspension is that significant as a Sixth Amendment matter, particularly when a restricted license may be obtained after only 45 days. Cf. Frank v. United. States, supra. Furthermore, the requirement that an offender attend an alcohol abuse education course can only be described as de minimis.

       We are hampered in our review of the clothing requirement because the record from the state courts contains neither a description of the clothing nor any details as to where and when it must be worn.

       We have frequently looked to the federal classification scheme in determining when a jury trial must be provided. See, e. g., Muniz v. Hoffman, 422 U. S. 454, 476-477 (1975); Baldwin, supra, at 71; Duncan, 391 U. S., at 161. Although Congress no longer characterizes offenses as “petty,” 98 Stat. 2027, 2031, 99 Stat. 1728 (repealing 18 U. S. C. § 1), under the current scheme, 18 U. S. C. §3559 (1982 ed., Supp. V), an individual facing a maximum prison sentence of six months or less remains subject to a maximum fine of no more than $5,000. 18 U. S. C. §3571(b)(6) (1982 ed., Supp. V).
      We decline petitioners’ invitation to survey the statutory penalties for drunken driving in other States. The question is not whether other States consider drunken driving a “serious” offense, but whether Nevada does. Cf. Martin v. Ohio, 480 U. S. 228, 236 (1987). Although we looked to state practice in our past decisions, we did so chiefly to determine whether there was a nationwide consensus on the potential term of imprisonment or amount of fine that triggered a jury trial regardless of the particular offense involved. See, e. g., Baldwin, supra, at 70-73; Duncan, supra, at 161.

       In light of petitioners’ status as first-time offenders, we do not consider whether a repeat offender facing enhanced penalties may state a constitutional claim because of the absence of a jury trial in a prior DUI prosecution.