Nos. 11-1545, 11-1547 WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002 IN THE Supreme Court of the United States ———— CITY OF ARLINGTON, TEXAS, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION, et al., Respondents. ———— CABLE, TELECOMMUNICATIONS, AND TECHNOLOGY COMMITTEE OF THE NEW ORLEANS CITY COUNCIL, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION, et al., Respondents. ———— On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit ———— AMICI CURIAE BRIEF OF THE NATIONAL GOVERNORS ASSOCIATION, NATIONAL CONFERENCE OF STATE LEGISLATURES, COUNCIL OF STATE GOVERNMENTS, INTERNATIONAL CITY/COUNTY MANAGEMENT ASSOCIATION, GOVERNMENT FINANCE OFFICERS ASSOCIATION, AND NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS IN SUPPORT OF PETITIONERS ———— LISA E. SORONEN Executive Director STATE AND LOCAL LEGAL CENTER 444 North Capitol Street NW Suite 515 Washington, D.C. 20001 (202) 434-4845 lsoronen@sso.org THOMAS W. MERRILL Counsel of Record 435 West 116th Street Room 725 New York, NY 10027 (212) 854-9764 tmerri@law.columbia.edu Counsel for Amici Curiae [Additional Counsel Listed On Inside Cover] J AMES BRADFORD RAMSAY General Counsel HOLLY RACHEL SMITH Assistant General Counsel NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS 1101 Vermont Avenue, NW Suite 200 Washington, DC 20005 (202) 898-2207 jramsay@naruc.org Counsel for Amici Curiae (i) QUESTION PRESENTED Whether a court should apply Chevron to review an agency’s determination of its own jurisdiction. (iii) TABLE OF CONTENTS Page QUESTION PRESENTED .................................. i TABLE OF CONTENTS ..................................... iii TABLE OF AUTHORITIES ................................ iv INTEREST OF AMIC I CURIAE ........................ 1 SUMMARY OF ARGUMENT ............................. 3 ARGUMENT ........................................................ 7 I. Constitutional Structure and Traditions of American Government Require that Courts Exercise Independent Judgment in Determining the Scope of Agency Jurisdiction ............................................... 7 II. Independent Judicial Determination is Especially Important When Federal Agencies Seek to Expand their Power at the Expense of State and Local Governments ............................................. 11 III. The Theory Underlying Chevron Defer - ence Requires that Courts Exercise Independent Judgment in Determining the Scope of Agency Jurisdiction .............. 17 IV. The Distinction Between Jurisdictional and Other Legal Issues Is Familiar To Judges, and Chevron Step One Is Not Appropriate For Resolving Questions of Agency Jurisdiction .................................. 21 CONCLUSION .................................................... 32 iv TABLE OF AUTHORITIES CASES Page(s) Adams Fruit Co. v. Barrett , 494 U.S. 638 (1990) ............................................................ 18 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984) ... passim Christensen v. Harris County , 529 U.S. 576 (2000) ............................................................ 20 Chrysler Corp. v. Brown , 441 U.S. 281 (1979) 9 Cuomo v. The Clearing House Associates, L.L.C ., 557 U.S. 519 (2009) .......................... 16 Dole v. United Steelworkers of America, 494 U.S. 26 (1990) ............................................... 30, 31 Food and Drug Administration v. Brown & Williamson Tobacco Corp. , 529 U.S. 120 (2000) ..................................................... 6, 9, 29, 31 Geier v. American Honda Motor Co. , 529 U.S. 861 (2000) ............................................. 15, 16 Gonzales v. Oregon , 546 U.S. 243 (2006) ........ 14 Gregory v. Ash croft, 501 U.S. 452 (1991) ........ 14, 15 Hines v. Davidowitz, 312 U.S. 52 (1941) ......... 15 Interstate Commerce Commission v. Cin - cinnati, New Orleans, & Texas Pacific Railway Co. , 167 U.S. 479 (1897) ................ 9 James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991) ............................................. 9 Louisiana Public Service Commission v. FCC, 476 U.S. 355 (1986) .......................... 7, 11, 13 v TABLE OF AUTHORITIES—Continued Page(s) Medtronic Inc. v. Lohr , 518 U.S. 470 (1996) ... 14, 16 Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354 (1988) ............... 22 Natio nal Cable & Telecommunications Asso - ciation v. Brand X Internet Services, 545 U.S. 967 (2005) ............................................. 18 National Federation of Independent Business v. Sibelius , 132 S. Ct. 2566 (2012) ............... 23 Smiley v. Citicorp (S.D.), N.A. , 517 U.S. 735 (1996) ............................................................ 16, 18 Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2000) ...................................... 14 United States v. Mead Corp. , 533 U.S. 218 (2001) ............................................................ 20, 21 Watters v. Wachovia Bank, N.A. , 550 U.S. 1 (2007) ............................................................ 16 W yeth v. Levine, 555 U.S. 555 (2009) .............. 15, 16 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 529 (1952) ............................................. 9 CONSTITUTION U.S. CONST. amend. X ...................................... 4 U.S. CONST. art. I ............................................. 8, 24 U.S. CONST. art. I, § 1 ...................................... 7-8 U.S. CONST. art. I, § 1, cl. 18 ............................ 8 U.S. CONST. art. I, § 3 ...................................... 9 vi TABLE OF AUTHORITIES—Continued Page(s) U.S. CONST. art. II ............................................ 8 U.S. CONST. art. III .......................................... 8 U.S. CONST. art. III, § 1 .................................... 8 U.S. CONST. art. VI, § 2 .................................... 4, 13 STATUTES 28 U.S.C. § 1331 ............................................... 23 28 U.S.C. § 1332 ............................................... 23 28 U.S.C. § 1333 ............................................... 23 Administrative Procedure Act, 5 U.S.C. § 706 .. 19 5 U.S.C. § 706(2)(A) ...................................... 11 5 U.S.C. § 706(2)(C) ........................................ 4, 10, 20 Federal Communications Act, 47 U.S.C. § 151, et seq . 47 U.S.C. § 254 (1996) .................................. 2 47 U.S.C. § 332(c)(7)(A) ................................ 12 47 U.S.C. § 332(c)( 7)(B) ................................ 12, 26 47 U.S.C. § 332 (c)(7)(B)(ii) ..................... 12, 25, 32 47 U.S.C. § 332(c)(7)(B)(v) ............................ 25 47 U.S.C. § 410(c) (1971) .............................. 2 OTHER AUTHORITIES Cass R. Sunstein, Chevron Step Zero , 92 V A. L. REV . 187 (2006) ......................................... 28 THE FEDERALIST NO. 69 (Alexander Hamilton) ...................................................... 8 vii TABLE OF AUTHORITIES—Continued Page(s) Thomas W. Merrill & Kristin E. Hickman, Chevron’s Domain, 89 GEO. L. J. 833 (2001) ............................................................ 28 WEBSTER’ S NEW INTERNATIONAL DICTIONARY (2d ed. 1954) ................................................. 23 INTEREST OF AMICI CURIAE 1 The National Governors Association (NGA), founded in 1908, is the collective voice of the Nation’s gover - nors. NGA’s members are the governors of the 50 States, three Territories, and two Commonwealths. The National Conference of State Legislatures (NCSL) is a bipartisan organization that serves the legislators and staffs of the nation’s 50 States, its Commonwealths, and Territories. NCSL provides research, technical assistance, and opportunities for policymakers to exchange ideas on the most pressing state issues. NCSL advocates for the interests of state governments before Congress and federal agencies, and regularly submits amicus briefs to this Court in cases, like this one, that raise issues of vita l state concern. The Council of State Governments (CSG) is the Nation’s only organization serving all three branches of state government. CSG is a region-based forum that fosters the exchange of insights and ideas to help state officials shape public policy. This offers unparalleled regional, national, and international opportunities to network, develop leaders, collabo- rate, and create problem-solving partnerships. The International City/County Management Asso - ciation (ICMA) is a nonprofit professional and educa - tional organization of over 9,000 appointed chief executives and assistants serving cities, counties, towns, and regional entities. ICMA’s mission is to 1 The parties have consented to the filing of this brief, and their letters of consent are on file with the Clerk (Rule 37.2). This brief was not written in whole or in part by the parties’ counsel, and no one other than the amicus made a monetary contribution to its preparation (Rule 37.6). 2 create excellence in local governance by advocating and developing the professional management of local governments throughout the world. Government Finance Officers Association (GFOA) is the professional association of state, provi ncial, and local finance officers in the United States and Canada. The GFOA has served the public finance profession since 1906 and continues to provide lead - ership to government finance professionals through research, education, and the identification an d pro- motion of best practices . Its 17,500 members are dedicated to the sound management of government financial resources. The National Association of Regulatory Utility Commissioners (NARUC), a quasi -governmental non- profit organization founded in 1889, represents the government officials in the fifty States, the District of Columbia, Puerto Rico, and the Virgin Islands, charged with the duty of regulating, inter alia, the telecommunications common carriers within their respective borders. The United States Congress, in the Federal Communication Commission’s authoriz - ing legislation, assigned specific duties to and in - cluded specific reservations of existing authority of NARUC members. Congress has also consistently recognized that NARUC is a proper part y to repre - sent the collective interest of the State regulatory commissions. See, e.g ., 47 U.S.C. § 410(c) (1971) (Congress designated NARUC to nominate members of Federal -State Joint Board to consider issues of common concern); see also 47 U.S.C. § 254 (1996). Both federal courts and numerous federal admin - istrative agencies have also recognized NARUC’s representative role. 3 All state and local governments have a vital inter- est in the scope of federal regulatory authority . Often an ex pansion of federal authority means a restriction of state and local authority. If courts are required to defer to any reasonable federal agency interpretation of its own jurisdiction, the scope of federal authority likely will expand —perhaps quite dramati cally —and state and local authority will recede. It has long been understood that courts, exercising independent judg - ment, play a vital role in ensuring that federal administrative agencies do not overstep the bounds of their delegated authority. Amici urge this Court to reaffirm that important judicial role in this case, and in so doing preserve the protections that state and local governments have enjoyed against administra - tive overreach. SUMMARY OF ARGUMENT Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984), addressed the question of how courts should review “an agency’s construction of the statute which it administers.” Id . at 842. The Court concluded that when a statute is “silent or ambiguous with resp ect to the specific issue,” a reviewing court should defer to the agency’s reasonable interpretation, even if it is not the one the court would have reached in the exercise of independ - ent judgment. Id. at 843 n.11. The question in this case is whether the rule of deference prescribed by Chevron applies to an agency’s determination of the scope of its own jurisdiction. The structure of American government and the traditions that have grown up around it instruct that the answer to this question must be “no .” Agencies are creatures of law and can exercise only the powers 4 delegated to them by law. They have no inherent authority to define the scope of their own authority. Congress has long provided for judicial review of agency action, in significant part to provide a check on agencies that reach beyond the scope of their authority. This function is specifically prescribed by the Administrative Procedure Act, 5 U.S.C. § 706(2)(C), which directs courts to set aside agency action “in excess of statutory juri sdiction.” A practice of de - ferring to agency interpretations of their own juris - diction would eviscerate this vital check on agency power, one which is necessary to preserve the basic structure of our government. The exercise of independent judicial judg ment about the scope of agency authority is especially important in cases, such as this one, where an expan- sion of agency power comes at the expense of state and local governments. The Constitution gives the federal government only enumerated powers, and the Tenth Amendment specifically reserves all other powers to the states and the people. This background understanding is often important in interpreting gaps and silences that inevitably appear in federal statutes delegating power to administrative agencies. If every gap, silence, or ambiguity about the scope of an agency’s authority is given over to the agency to resolve through plausible interpretation, the result is likely to be that the agency often will be able to trump state authority, through the preemptive force of the Supremacy Clause, whether or not this was contemplated by Congress when it enacted the stat - ute in question. Judges, because of their diverse experience, training, and independence, are likely to be more sensitive to the broader tradition of Ameri - can federalism that should properly inform the way 5 gaps and silences are filled when the question is one of agency jurisdiction. The question in this case is not a matter of limiting or cutting back on the deference prescribed by Chevron . A careful reading of Chevron and the many cases that follow reveals that this Court presupposed the review it described would apply only where an agency interprets a statute it is “charged with admin - istering.” See Chevron , 467 U.S. at 844, 865. In other words, Chevron -style deference applies only when the agency has jurisdiction over the issue; to be “charged with administering” a question is to have administrative authority over it. The underlying theory of Chevron —that Congress, by delegating authority to an agency, intends the agency to have primary interpretational authority over issues that implicate contested policy questions —also presup- poses that the interpretational question is within the agency’s jurisdiction. Congress does not give ag en- cies a blank check to make policy wherever they please; it delegates power to particular agencies with - in prescribed limits. It would make no sense to say Congress delegated power to an agency to determine whether it has delegated power. A court must be satisfied that the agency is acting within the scope of its delegated power before it turns to Chevron . Two counter-arguments have been prominently advanced in favor of using the Chevron framework to resolve questions of agency jurisdiction. The first is that it is not possible to maintain a principled dis- tinction between questions that are “jurisdictional” and other questions of statutory interpretation. But courts apply th is distinction all the time, for example in determining whether a federal dist rict court has subject matter jurisdiction or in asking whether 6 Congress has acted within the scope of its enumer - ated powers. Courts will be assisted by the parties in identifying questions that are jurisdictional, since complaints about an agency exceed ing the scope of its jurisdiction likely will arise only when an agency is seeking to expand (or possibly contract) the types of issues it regulates. Certainly the Fifth Circuit, in the decision under review, had no hesitation about characterizing the iss ue as jurisdictional. Admit - tedly, the distinction between jurisdictional and other legal questions is susceptible to m anipulation, but no more so than the distinctions already present in the Chevron doctrine between statutes that are “clear” and those that are “ambiguous,” or the distinction between interpretations that are “reasonable” and those that are “unreasonable.” A second counter-argument is that courts have adequate authority to police agency attempts to exceed the scope of their jurisdiction u nder step one of the Chevron doctrine. This Court has used step one of Chevron on occasion to resolve questions iden - tified as jurisdictional. See, e.g. , Food and Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). But there are costs to doing so. One is that gaps, ambiguities, and silences in statutes about the scope of an agency’s jurisdiction must often be resolved by adverting to general prin - ciples of American government, like federalism, and longstanding traditions about the allocation of gov - ernmental power. Courts are more likely to be sensitive to these variables than agencies. Another is that expanding the inquiry under Chevron step one to include wide-ranging considerations of constitutional law, statutory structu re, and the history of a particu - lar type of regulation threatens to sap Chevron of its advantages as a rule-like structure for determining 7 the respective role of courts and agencies. It is far better for courts to exercise independent judgment assuring that the agencies are acting within the scope of their authority before turning to the two- step Chevron inquiry. ARGUMENT I. Constitutional Structure and Traditions of American Government Require that Courts Exercise Independent Judgment in Determining the S cope of Agency Jurisdiction Two propositions about the structure of American government resolve the question presented in this case. First, “[a]n agency may not confer power upon itself.” Louisiana Public Service Commission v. FCC , 476 U.S. 355, 374 (1986). Whatever power agencies have to regulate is derived solely from delegations of authority from Congress. Second, federal courts have been directed to review agency action, in significant part to ensure that agencies keep within the bounda- ries of their lawfully delegated authority. Together, these propositions mean that courts must exercise independent judgment to assure that agencies are acting within the jurisdiction assigned to them by Congress. Affording Chevron deference to agency interpretations of the scope of their own jurisdiction would effectively allow agencies to confer power on themselves contrary to the constitutional design. As to the first proposition, the Constitution makes clear that administrative bodies possess no inherent authority to act with the force of law. The first substantive clause of the Constitution provides: “All legislative Powers herein granted shall be vested in a Congress of the United States….” U.S. CONST. art. I, 8 § 1. The President is vested with certain p owers in Article II, but the power to create departments or agencies with the power to act with the force of law is not among them. U.S. CONST. art. II. The courts are vested with certain powers in Article III, but again, the power to create tribunals inferior to the Supreme Court, or to vest them with the power to act with the force of law is not among them. U.S. CONST. art. III, § 1. Instead, the Constitution provides, in the Neces - sary and Proper Clause, that Congress is given the power “[t]o make al l Laws which shall be necessary and proper for carrying into Execution” the enumer- ated legislative powers of Article I, as well as “ all other Powers vested by this Constitution in the Gov - ernment of the United States, or in any Department or officer thereof.” U.S. CONST. art. I, § 1, cl. 18 (emphasis added). The Constitution therefore makes clear that the power to create any governmental department or officer, other than the constitutional offices men - tioned in the Constitution, is given exclusively to Congress. And it makes clear that the power to give these departments and officers authority to act with the force of law, when this is necessary and proper to carry out the various powers vested in the federal government by the Constitution, is given exclusively to Congress. The understanding that administrative bodies have no inherent authority to act with the force of law is a bedrock principle of American separation of powers. The principle has never been doubted. See THE FEDERALIST NO. 69, at 361 (Alexander Hamilton) (noting that the President, unlike the King of England, has no inherent authority to prescribe “rules concerning the commerce or currency of the 9 nation”). This was the principle enforced in the Steel Seizure Case, where the Court held that the Presi - dent had no inherent authority to seize steel mills, even if he or she deemed it necessary to maintain the supply of material for the armed forces in time of war. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 529, 585 (1952). This principle has been recognized repeatedly in decisions by this Court. See Brown & Williamson Tobacco Corp. , 529 U.S. at 161 (citations omitted) (“no matter how ‘important, conspicuous, and contro - versial’ the issue, and reg ardless of how likely the public is to hold the Executive Branch politically accountable, an administrative agency’s power to regulate in the public interest must always be grounded in a valid grant of authority from Con - gress”); Chrysler Corp. v. Brown , 441 U.S. 281, 302 (1979) (“The legislative power of the United States is vested in the Congress, and the exercise of quasi - legislative authority by governmental departments and agencies must be rooted in a grant of such power by the Congress and subject to limitations that body imposes.”); Interstate Commerce Commission v. Cincinnati, New Orleans, & Texas Pacific Railway Co., 167 U.S. 479, 505 (1897) (Interstate Commerce Commission lacked authority to prescribe rates for the future since this power had not been delegated by Congress); see also James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concur - ring) (“The Executive . . . in addition to ‘tak[ing] Care that the Laws be faithfully executed,’ Art. I, § 3, has no power to bind private conduct in areas not specifically committed to his control by Constitution or statute….”). 10 If administrative bodies have no power to act out - side the scope of the authority delegated to them by Congress, how is this principle to be enforced? Con - gress may police administrative exercises of author - ity by conducting oversight hearings, making appro - priations decisions, and adopting clarifications of existing agency authority. But it is difficult for Congress, given its limited membership and the many demands on its time, to engage in a systematic review of administrative behavior to ensure compli - ance with the limits on agency authority. Thus, Congress has long provided, as a further and more efficacious check to assure that administrative action remains within the confines of delegated authority, broad rights allowing judicial review of agency action. The most notable of such rights of review, of course, is that established by the Administrative Procedure Act (APA) . Congress no doubt envisioned the review provisions of the APA as providing a check on agencies that might take action outside the scope of their delegated authority. Section 706 provides expressly that “The reviewing court shall —…(2) hold unlawful and set aside agency action, finding s, and conclusions found to be —-…(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right ….” 5 U.S.C. § 706(2)(C) (emphasis added). Note the care with which Congress expressed its understanding that courts should enforce limits on delegated agency authority, utilizing a variety of alternative expressions to convey this idea: in excess of jurisdiction, in excess of authority, in excess of limitations, or short of statutory right. Moreover, the directive to courts to review agency action for compli - ance with the scope of delegated authority is separate 11 and distinct from the directive to determine whether the agency action i s “not in accordance with law.” 5 U.S.C. § 706(2)(A). This clearly indicates that Congress recognized a distinction between agency action that is ultra vires and agency action that is otherwise inconsistent with the law. A practice of deferring to agency determinations of the scope of their own authority would thus fly in the face of the plain language of the APA. Judicial review of questions of agency jurisdiction is especially important given the variety of conflicts that arise over the scope of agency authority. Agency jurisdiction can implicate the respective authority of the federal gover nment and the states, the scope of governmental as opposed to private or market ordering, and the respective authority of two or more federal administrative agencies. Congress has the ultimate authority to set the boundaries of agency authority on all the se dimensions, and courts have a duty to assure that those boundaries are maintained. As this Court has observed, “[t]o permit an agency to expand its power in the face of a congressional limitation on its jurisdiction would be to grant to the agency the power to override Congress. This we are both unwilling and unable to do.” Louisiana Public Service Commission , 476 U.S. at 374-75. II. Independent Judicial Determination is Especially Important When Federal Agen - cies Seek to Expand their Power at the Expense of State and Local Governments State and local governments are often regulated by federal agencies and often regulate the same subject matter as federal agencies. As a result, allowing federal agencies to determine the scope of their own jurisdiction, wi th only deferential review by courts, 12 would effectively allow federal agencies to trench upon the authority of state and local governments, with little constraint or check. The issue presented by this case vividly illustrates the risk. 47 U.S.C. § 332(c)( 7)(B) reflects a limited preemp- tion of state and local authority. Specifically, as relevant to this case, the statute requires state and local governmental authorities to act upon any re - quest for authority to construct a new wireless facility “within a reasonable period of time.” That section, however, also contains an anti-preemption or savings clause: Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wire - less service facilit ies. 47 U.S.C. § 332(c)(7)(A). The Commission’s declaratory order in this case, which the court of appeals recognized was effect - tively a rule , expands the preemptive effect of § 332(c)(7)(B)(ii). This not only violates the statute’s savings clause, it also means the Commission’s “in - terpretation” cannot be afforded Chevron deference. Before the Commission’s order, local courts deter - mined on a case-by -case basis whether the permitting authority acted within a reasonable period of time. See 47 U.S.C. § 332(c)(7)(B)(ii) (courts are to deter - mine claims of unreasonable delay “taking into account the nature and scope of such request”). Under the Commission’s order, courts must adopt a presumption that any request not acted upon within the Commission’s 90 - and 150-day time limits is “unreasonable.” Whether this presumption changes 13 the burden of persuasion, or merely the burden of producing evidence (as the court of appeals thought), it necessarily restricts the scope of authority of state and local governmental permitting authorities rela- tive to what it was before the Commission acted. Failure to act within the prescribed time frames will create a presumption of unreasonableness. This pre - sumption will constrain local permitting authorities to comply within the times frames laid down by the Commission. The Commission would not have im- posed its time frames if it did not believe they would have a constraining effect on local permitting bodies. A decision by a federal regulatory agency to preempt—or in this case, to expand the scope of an existing statutory preemption —cannot be taken on the agency’s own authority without an express dele - gation of s uch authority by Congress. This follows from the more general proposition, discussed in Sec - tion I, that agencies have no inherent authority to act with the force of law absent a delegation from Con - gress. When agencies seek to preempt, this conclu- sion is reinforced by the text of the Supremacy Clause, which makes “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof …the supreme Law of the Land.” U.S. CONST. art. VI, cl. 2 (emphasis added). A statute duly enacted by Congress that expressly delegates power to preempt to an agency would fall within the terms of the Supremacy Clause. An agency order adopted under its general regulatory authority does not. This Court has recognized as much. See Louisiana Pu blic Service Commission v. FCC , 476 U.S. 355, 384 (1986) (rejecting the FCC’s contention that it could preempt a state regulation in order to “effectuate a federal policy” absent congressional authorization). 14 For similar reasons, agencies should not be given Chevron -style deference when they interpret federal statutes (or their own regulations) to have preemp- tive effect. The decision to displace state law through preemption implicates important questions of f eder- alism. See, e.g. , Medtronic Inc. v. Lohr , 518 U.S. 470, 488 (1996) (describing preemption of state common law remedies as “a serious intrusion into state sover - eignty”). Indeed, from the perspective of the states, there is little difference between a judgment that state law is preempted and a judgment that state law is unconstitutional. Both types of judgments nullify otherwise duly enacted state statutes and c ommon law rules of decision. In so doing, both type of judg - ments subtract from the power the states otherwise enjoy as sovereign entities. Part of our received tradition is the understanding that the judiciary has unique competence to resolve questions o f constitutional federalism. Thus, for example, this Court has declined to adopt interpreta - tions of statutes that raise serious questions of con - stitutional federalism, see, e.g. , Gregory v. Ashcroft , 501 U.S. 452 (1991), and has declined to defer to agency decisions that raise serious questions of con - stitutional federalism. See, e.g., Gonzales v. Oregon , 546 U.S. 243, 275 (2006); Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 172- 73 (2000). Likewise, the decision to displace state law through preemption should be informed by an understanding of which areas of regulation have been delegated to the federal government, and which have been traditionally com - mitted to the states, and when constitutional sensi- tivities would be irritated either by a determination of concurrent authority or of exclusive federal com - petence. 15 Agencies are specialized institutions, intensely focused on the details of the particular statutory regimes they are charged with administering. By design and tradition, they are not expected to ponder larger structural issues such as the relative balance of authority between the federal and state govern - ments, the importance of preserving state and local autonomy, the value of allo wing policy to vary in accordance with local conditions, or the systemic advantages of permitting state experimentation with divergent approaches to social problems. See Gregory v. Ashcroft , 501 U.S. at 458-59 (summarizing the systemic benefits of federal ism). This Court’s most complete discussion of the appro - priate standard for reviewing agency actions said to require preemption is found in W yeth v. Levine, 555 U.S. 555 (2009). There, the Court observed that an agency regulation with the force of law ca n preempt state law. But even in such cases, “the Court has performed its own conflict determination, relying on the substance of state and federal law and not on agency proclamations of pre -emption.” Id. at 576. Where Congress has not authorized the ag ency “to pre-empt state law directly,” and where the agency has not issued a legislative regulation that is claimed to conflict with state law, the question is what weight courts should give the agency’s opinion about pre - emption. Id. The answer, the Court indicated, is that an agency’s views should be given “some weight,” id. (quoting Geier v. American Honda Motor Co. , 529 U.S. 861, 883 (2000)), given its understanding of the statute and its ability to make “informed determina - tions about how state requi rements may pose an ‘obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’” id . at 577 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). 16 In no case, however, has this Court “deferred to the agency’s conclusion that state law is pre-empted.” Id. at 576. Rather, the weight given to the agency’s views turned on the agency’s “thoroughness, con - sistency, and persuasiveness.” Id. at 577. Clearly, this was not Chevron deference. Other recent decisions are to the same or similar effect. See, e.g. , Medtronic, 518 U.S. at 488; Geier, 529 U.S. at 883; Watters v. Wachovia Bank, N.A. , 550 U.S. 1, 38-44 (2007) (Stevens, J., joined by Roberts C.J., and Scalia, J. dissenting) . In no case has this Court deferred to an agency opinion that preemption is required by finding that this was “reasonable” under step two of Chevron . To the contrary, the common assumption has been that “the question of whether a statute is pre-emptive” is one that “must always be decided de novo by the courts.” Smiley v. Citicorp (S.D.), N.A., 517 U.S. 735, 744 (1996). W yeth likewise states the appropriate standard of review when an agency interprets an express pre - emption clause.2 2 To the extent the dissenting opinion in Cuomo v. The Clear - ing House Associates, L.L.C ., 557 U.S. 519, 555 (2009), assumes that Chevron applies to agency interpretations of express pre - emption clauses, we believe it was in error, for the reasons stated in the balance of this paragraph. In any event, the assumptions of a dissenting opinion are not controlling author - ity in future cases. As Chevron teaches, when a statute is ambiguous or contains a gap, the exercise of inter - pretation entails a policy choice. When agencies interpret ambiguous statutes that they have been given authority to implement, the policy choice pro- perly belongs to the agency. But when the ambiguity appears in an express preemption clause, the policy 17 choice entails more far -reaching considerations of federalism. Preemption entails not only the scope of federal agency authority, but also the displacement of state governmental authority. It eliminates the power of the states to act, often in areas where they have long been understood to exercise exclusive authority. Hence, the interpretation of an express preemption clause has a critical effect on the balance of federal and state authority. Courts are more likely to be sensitive to these larger considerations of federalism than are agencies, which may have a single -minded focus on achieving their narrow regulatory objectives. Agencies may be resentful of implicit competition from state and local governments, or may place an inordinate value on the convenience of not having to deal with different ways to solving a problem. In short, where interpretation entails contested issues of policy about preemption , there is every reason to believe that courts, rather than agencies, are the proper institution for resolving the interpretational question. III. The Theory Underlying Chevron Defer- ence Requires that Courts Exercise Independent Judgment in Determining the Scope of Agency Jurisdiction The Chevron doctrine is not in tension with the proposition that reviewing courts must exercise inde - pendent judgment in determining whether an agency is acting within the scope of its delegated authority. Chevron spoke of the need to defer to reasonable interpretations of statutory provisions rendered by those “entrusted to administer” a statutory scheme. 467 U.S. at 844. This comment clearly presupposes 18 that the reviewing court must satisfy itself that the statutory provision in question is one that th e agency has been “entrusted” or “charged” with administer - ing. See Smiley , 517 U.S. at 739. In other words, the court must make an independent determination that the agency has been given delegated statutory authority to administer the provision in cont roversy. This is essentially an inquiry into agency jurisdiction or scope of authority. Chevron also justified its rule of deference by observing that “an agency to which Congress has delegated policymaking responsibilities may, within the limits of tha t delegation , properly rely on the incumbent administration’s views of wise policy to inform its judgments.” 467 U.S. at 865 (emphasis added). This statement expressly acknowledges that any rule of deference is limited to exercises of statutory interpret ation that fall within the dele - gated authority of the agency, and implies that those limits will continue to be independently determined by the reviewing court. More fundamentally, the underlying rationale of Chevron compels independent judicial review of the scope of an agency’s delegated authority. Chevron indicated that courts should defer to reasonable agency interpretations of statutes because Congress, in delegating authority to an agency, impliedly in - tends the agency rather than the court to fill any gaps or ambiguities in the statute. 467 U.S. at 843- 44. More recent decisions have confirmed that “[a] precondition to deference under Chevron is a delega- tion of administrative authority.” Adams Fruit Co. v. Barrett , 494 U.S. 638, 649 (1990); see, e.g. , National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967, 980 (2005) (“In 19 Chevron , this Court held that ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion.”). Again, this presupposes that the court must satisfy itself that Congress has delegated policy authority to an agency with respect to the statutory provision in question before the court engages in Chevron -type review. The concept of implied delegation explains why Chevron deference is consistent with the APA, which generally instructs reviewing courts to decide “all relevant questions of law.” 5 U.S.C. § 706. When Congress delegates policy authority to an agency with respect to a particular statutory provision, this can be seen as an implied instruction to courts to accept reasonable agency interpretations of that provision, at least insofar as those interpre tations rest on policy judgments. In effect, the APA’s general command instructing courts to exercise independent judgment in deciding questions of law is fully respected. But insofar as the court finds the provision in question is ambiguous or incomplete, it adopts the agency’s rea - sonable interpretation because Congress has given the agency authority to make policy judgments with respect to the provision. This reconciliation with the APA is not possible, however, when issues arise about whether the agency is acting within the scope of its delegated authority. Here there can be no finding of an “implied dele- gation” to the agency because the very question at issue is whether such a delegation does or does not exist. Consequently, the language of the A PA in - structing courts to decide “all relevant questions of law” with respect to whether the agency action is “in excess of statutory jurisdiction, authority, or 20 limitations, or short of statutory right,” 5 U.S.C. § 706(2)(C), stands unqualified, and can not be imple- mented by drawing on Chevron ’s insight about implied delegation. Post -Chevron decisions discussing the precondi- tions for Chevron deference also establish that courts must make an independent determination of whether the agency is acting wit hin the scope of its delegated authority. In United States v. Mead Corp. , 533 U.S. 218 (2001), the Court held, as a general matter, that Chevron applies where Congress has delegated au- thority to an agency to act with the “force of law” and the agency int erpretation has been rendered in an exercise of that authority. Id. at 226-27; see also Christensen v. Harris County , 529 U.S. 576, 586-88 (2000). The principal circumstances in which these conditions will be satisfied are where an agency has been given legislative rulemaking authority and has interpreted the statute by promulgating a legislative rule, or where an agency has been given authority to render binding adjudications and has interpreted the statute in making such an adjudication. Justice Scalia dissented in Mead , and would have held that Chevron deference is triggered whenever an agency renders an “authoritative” interpretation of a statute that it administers. Id. at 241. For present purposes, the critical point is that under either conception of the pre -conditions for Chevron deference, the court must make an inde - pendent determination that the interpretation in question is one that is within the authority of the agency to make. If the question is whether Congress delegated power to the agency to engage in legislative rulemaking, then the existence of such authority must be established before applying Chevron . If the 21 question is whether Congress delegated power to the agency to make binding adjudications, then the exist - ence of such authority must be established before applying Chevron . And even if the question were, as Justice Scalia urged in his Mead dissent, whether the agency had rendered an authoritative interpretation, it must be established that the agency had authority to speak to the issue. Neither the majority nor dissenting opinions in Mead suggested that courts would exercise anything other than independent judgment in establishing whether these precondi - tions to Chevron deference have been satisfied. To this extent, then this Court has already held— unanimously —that courts must exercise independent judgment in determining whether an agency is acting within the scope of its delegated authority before the court engages in Chevron -style deference to an agency’s interpretational vie ws. In short, the Chevron doctrine is not only con - sistent with a rule requiring courts to exercise independent judgment in determining whether an agency is acting within the scope of its delegated authority. Chevron requires that courts engage in such an inquiry. IV. The Distinction Between Jurisdictional and Other Legal Issues Is Familiar To Judges, and Chevron Step One Is Not Appropriate For Resolving Questions of Agency Jurisdiction There are two principal counter-arguments to the proposition that reviewing courts should exercise independent judgment in determining whether fed - eral agencies are acting within the scope of their delegated authority before applying the two- step 22 Chevron doctrine. The first counter- argument is no principled distinction can be drawn between ques - tions of agency jurisdiction and ordinary questions of legality. The second is that courts can adequately assure that agencies stay within the scope of their authority by exercising independent judgment at step-one of the Chevron process. Neither of these counter-arguments defeats the powerful reasons for determining questions of agency jurisdiction before turning to Chevron . A. In a concurring opinion in Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 381 (1988), Justice Scalia wrote: [T]here is no discernible line between an agency’s exceeding its authority and an agency’s exceed- ing authorized application of its authority. To exceed authorized application is to exceed au - thority. V irtually any administrative action can be characterized as either the one or the other, depending upon how generally one wishes to describe the “authority.” With respect, we believe there is a clear conceptual distinction between authority to act and the exercise of authority, between ultra vires and contra legem . This distinction, like other fundamental legal con - cepts, may be subject to manipulation. But the dan - gers of manipulation here are no more pronounced than they are in other areas of the law, where it is necessary to trust the good sense of judges in resist - ing efforts to collapse one concept into another . To begin, no claim can be made that the distinction between scope of authority and exercise of authority — between jurisdiction and legalit y —is one that is 23 unfamiliar to judges or beyond the capacities of judicial administration. To ask whether a legal entity has “jurisdiction” is to inquire whether it has “[t]he legal power, right, or authority to hear and determine a cause or causes, considered either in general or with reference to a particular matter; legal power to interpret and administer the law in the premises.” W EBSTER’ S NEW INTERNATIONAL DICTION- ARY 1347 (2d ed. 1954). To ask whether a legal entity has conformed to the law is to a sk whether its exer - cise of acknowledged authority or “jurisdiction” complies with relevant legal constraints. Federal judges are routinely asked to make and enforce this distinction. For example, federal courts must determine in nearly every case wheth er they have subject matter jurisdiction over the controversy. They must determine whether matters fall within federal question jurisdiction, diversity jurisdiction, admiralty jurisdiction, and so forth. See 28 U.S.C. § 1331 (federal questions); § 1332 ( diversity); § 1333 (admiralty). They exercise independent judgment in resolving these questions, and they understand that the question of federal court jurisdiction is distinct from whether the defendant in the case did or did not comply with the law. Similarly, federal courts are sometimes asked to determine whether particular exercises of legislative authority by Congress fall within the enumerated powers delegated by the people to the federal govern - ment in the Constitution. E.g. , National Federation of Independent Business v. Sibelius, 132 S. Ct. 2566 (2012). Federal courts in these cases readily under- stand that the question of federal legislative jurisdic - tion is distinct from other questions of legality. Clearly, therefore, no claim can be made that the 24 distinction between jurisdiction and legality —be- tween power to decide and the correctness of a decision—is incoherent or beyond the capacities of judges to grasp and enforce. It is true that Congress frequently delineates the scope of an agency’s authority in the same statute in which other legal constraints on the agency’s action are prescribed. In contrast, the subject matter juris - diction of the courts is typically established by discrete statutes collected in title 28 of the U.S. Code. And federal legislative jurisdiction is established primarily in Article I of the Constitution, which is readily identified as a separate instrument from the statutes enacted by Congress. This difference may make the task of distinguishing between jurisdictio n and legality marginally more difficult in the context of administrative agency action. But the difference only goes to the relative degree of difficulty in distin - guishing questions about the scope of an agency’s power from other questions of law implic ated by agency action. It does not suggest that the inquiry is different in kind, or that it is less important to maintain jurisdictional boundaries where agency action is concerned than it is where judicial or legislative action is at issue. And it certainly does not establish that identifying the difference between power and legality is beyond the capacity of judges. It is also important to recognize that the submis - sions of the parties in identifying questions that are jurisdictional will assist cour ts. Questions of agency jurisdiction will ordinarily arise when an agency starts to regulate where it has not previously regu - lated, or announces that it will decline to regulate where it has previously regulated. Parties who are aggrieved by an agency’s deviation from its estab - 25 lished regulatory agenda will challenge the agency’s decision on judicial review, and will allege that the agency is departing from the scope of its jurisdiction. This, of course, does not mean the court should set aside all departures by agencies from the scope of their previously -established regulatory activity. His - torical practice does not define agency jurisdiction; agency jurisdiction is established by Congress. Nev - ertheless, challenges to agency action based on its exceeding (or falling short of) its jurisdiction will nearly always arise when an agency announces a shift in the scope of its regulatory activity. This will significantly assist in identifying issues that can fairly be described as jurisdictional. The court of appeals, in the decision below, had no difficulty identifying the question presented in this case as being “jurisdictional.” Pet’r’s App. 36a -37a. The court had to decide whether the FCC had author- ity to interpret 47 U.S.C. § 332(c)(7)(B)(ii) of the Federal Communications Act, which prohibits state and local governments from failing to act “within a reasonable period of time” on a request to place, construct, or modify personal wireless service facili - ties. The statute expressly authorizes any person adversely affected by a failure to act within a reason - able time “to commence an action in any court of competent jurisdiction.” 47 U.S.C. § 332(c)(7)(B)(v). No mention is made of enforcement of the “reason - able time” restriction by the FCC. 3 3 In contrast, § 332(c)(7)(B)(v) expressly allows parties ad - versely affected by a decision to deny permitting authority based on “the environmental effects of radio frequency emissions” to petition the Commission for relief. Although the court of appeals found the statute “silent” on the issue of the FCC’s authority in this matter and hence 26 ambiguous, it had no doubt the issue was juris - dictional. The identification of the issue as jurisdic - tional was made easier by the fact that the FCC had never previously asserted authority to define “reason - able time,” or to instruct “courts of competent juris - diction” how to respond to petitions seeking relief. 4 As to the danger of manipulation, this is no more serious in distinguishing jurisdiction from legality than in many other areas of the law. Certainly this distinction is not any more susceptible to manipula - tion than the distinctions between substance and procedure, law and equity, civil and criminal, pro - spective and retroactive, and a host of other distinc- tions that critically shape and organize the law. The danger of manipulation in distinguishing jurisdiction and legality i s no greater than the danger of manip - ulation at step one of Chevron , which asks whether the relevant statutory provision is “clear” or “ambigu - ous,” or at step two of Chevron , which asks whether the agency’s interpretation is “reasonable” or “unrea - sonable.” A willful judge will not be more signifi- cantly constrained if Chevron applies to questions of agency jurisdiction than he or she will be if juris - diction must be determined by the exercise of independent judgment. The Commission’s declaratory order was thus an unambiguous attempt to expand the scop e of the Commission’s regulatory authority relative to the baseline that had existed since the provision in question was adopted. The attempt to expand its authority was challenged by petitioners and others, which made it easy for the court to identify th e issue as jurisdictional. 4 See Pet’r’s App. at 49a -51a, discussing prior decisions by the FCC disclaiming authority to interpret § 332(c)(7)(B). 27 It is also relevant that questions of jurisdiction require an either -or, yes or no answer. In this sense jurisdiction differs from other concepts, like tallness (or clarity), that admit of answers falling along a continuum, and thus invite greater uncertainty in application. The either-or nature of jurisdictional questions makes it more difficult for courts to distin - guish precedents establishing or denying jurisdiction over particular matters, which in turn limits the opportunity for case -by -case manipulation. The critical point is that constitutional structure and the traditions of American government require that administrative bodies be confined to their juris - diction, and that courts exercise independent judg - ment in enforcing this understanding. There is no reason to believe that courts lack the capacity to carry out this function. The danger of manipulation always exists, but can only be counteracted by trust - ing that federal courts will exercise sound judgment and discretion in performing their appointed role. B. The second counter-argument is that courts can adequately ensure that agencies adhere to limits on their jurisdiction by enforcing legislative intent at step one of the Chevron process. This Court has on occasion used Chevron ’s step -one inquiry to limit agency efforts to expand their jurisdiction. Other than framing the discussion in terms of the Chevron doctrine, however, the Court’s analysis in these cases is identical to what would have been undertaken in rendering an independent judgment about the sco pe of the agency’s jurisdiction before turning to the Chevron doctrine. In this sense, the use of the Chevron framework was unnecessary to the decisions. 28 Determining the scope of agency jurisdiction in terms of Chevron ’s step one, however, risks distorting the Chevron inquiry in ways that provide inappropri - ate guidance to lower courts. On the one hand, it carries the risk that lower courts will apply a mechanical understanding of the Chevron framework in cases involving agency jurisdiction, and will defer to agency determinations of their own jurisdiction whenever the text of the statute is silent or ambigu - ous on the issue. This ignores the importance of background principles like federalism and historically - derived conventions about the appropriate functions of different legal institutions —matters that require a more contextual analysis tha n simply identifying gaps and ambiguities in a statute. On the other hand, a step-one inquiry carries the risk of diluting the Chevron doctrine in circumstances where it properly applies, by expanding the step- one inquiry in jurisdictional cases into a wide -ranging exercise in independent judgment that goes far beyond asking whet her the statute speaks directly “to the precise question at issue,” Chevron , 467 U.S. at 842, or whether the “intent of Congress is clear.” Id. at 842-43. Rather than distort the Chevron process in this fashion, we believe it would be better to confront the question of agency jurisdiction directly, through the exercise of independent judicial judgment at what has come to be called “step zero” of Chevron .5 5 See, e.g. , Cass R. Sunstein, Chevron Step Zero , 92 V A. L. REV . 187, 207-11 (2006); Thomas W. Merrill & Kristin E. Hickman, Chevron’s Domain , 89 GEO. L. J. 833, 836-37 (2001). Two decisions, in particular, illustrate these concerns. 29 In Food and Drug Administration v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, this Court was confronted with the question of whether the Food and Drug Administration (FDA) had authority to regulate tobacco products as customarily marketed. All parties in the case, including the FDA, described the question as “jurisdictional.” Both the majority opinion and the dissenting opinion did the same. Rather than treat agency jurisdiction as a threshold question to be resolved before applying the two- step Chevron inquiry, however, the Court framed it s inquiry in terms of Chevron ’s step one, asking whether Congress had spoken to the precise question at issue. 529 U.S. at 132. After 28 pages of analysis, the Court concluded that Congress had spoken to the question of agency jurisdiction over tobacco. But the Court did not find this directive in the words of the Food Drug and Cosmetic Act (FDCA). Instead, the Court uncovered Congress’s intention by considering contradictions between the agency’s preferred tobacco policy and other provisions of the FDC A, the lengthy history of FDA disclaimers of regulatory authority communicated to Congress, and a variety of tobacco - specific statutes other than the FDCA that revealed a congressional purpose to reserve tobacco policy for itself. Id. at 133-61. We do not suggest the jurisdictional analysis in Brown & Williamson was mistaken, or that the ex - tensive analysis of the history of tobacco regulation was misguided. To the contrary, it was entirely appropriate given the importance of the jurisdictional question presented. Our points are simply, first, that the Court’s independent analysis of the history of tobacco regulation would not have changed one iota if presented as an independent inquiry into the scope of the agency’s jurisdiction rather than an applicat ion of 30 step one of Chevron . And second, the idea that Con- gress had spoken to the precise question at issue— over the course of dozens of hearings spread out over multiple decades and through seven separate stat- utes and amendments to statutes—was at the very least an unorthodox application of step one of Chevron , and one that seemingly obscures any distinction between Chevron -style deference and independent judicial review. Similarly, in Dole v. United Steelworkers of Amer - ica, 494 U.S. 26 (1990), the que stion was whether the Paperwork Reduction Act authorized the Office of Management and Budget (OMB) to review regulations mandating that employers disclose warnings about chemicals in the workplace to employees. After meticulously reviewing “the language, structure, and purpose of the Paperwork Reduction Act,” 494 U.S. at 35, the Court concluded that Congress intended the Act to apply only to regulations requiring the disclo - sure of information to agencies. The analysis was indistinguishable from what the Court would do in deciding the issue de novo. Only at the very end of the opinion did the Court allude to the Chevron doctrine, suggesting that the case could be decided at step one because the intent of Congress was “clear.” Id. at 42. Justice White, in dissent, thought that the decision departed from Chevron principles because the Court could not say “its interpretation is the only one Congress could possibly have intended.” Id. at 45 (White J., dissenting). He also pointedly observ ed that the respondent had argued “ Chevron should not apply in this case because OMB’s regulations actually determine the scope of its jurisdiction under the Act,” id. at 54, and noted that the majority did not address this argument. 31 Again, we do not suggest the jurisdictional analysis in Dole was incorrect or inappropriate. Our point is that framing the analysis in terms of Chevron was unnecessary to the decision, and the proposition that the jurisdictional question was “clear” was strained, since the ambiguity was eliminated only after an elaborate and independent inquiry into statutory structure, purpose, and history. In Dole , as in Brown & Williamson , the question of agency jurisdiction should have been addressed as a precondition of Chevron deference , not as an element in the applica- tion of Chevron deference. Brown & Williamson and Dole suggest that this Court is entirely cognizant of the importance of ques - tions about the scope of agency jurisdiction, and is prepared to engage in an appropriately contextual analysis of jurisdictional questions when they are presented. If t he only thing at stake were how this Court writes its opinions, little would turn on whether jurisdictional questions are tackled at step one or step zero. But for every case in which this Court confronts a Chevron question, thousands are decided by the lower courts. Those courts need appropriate guidance on how to resolve those ques - tions. Given the vital importance of judicial review in preserving the proper place of agencies in American government, the threshold question of agency juris - diction should be highlighted for consideration by the lower courts, not obscured. The proper way to do this is to clarify that courts must exercise independent judgment in determining that a gencies are acting within the scope of their authority before they turn to Chevron ’s two -step framework. 32 CONCLUSION The decision of the court of appeals should be reversed and remanded with instructions to the court to exercise independent judgment in determining whether the Commission has jurisdiction to interpret 47 U.S.C. § 332 (c)(7)(B)(ii). Respectfully submitted, LISA E. SORONEN Executive Director STATE AND LOCAL LEGAL CENTER 444 North Capitol Street NW Suite 515 Washington, D.C. 20001 (202) 434-4845 lsoronen@sso.org J AMES BRADFORD RAMSAY General Counsel HOLLY RACHEL SMITH Assistant General Counsel NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS 1101 Vermont Avenue, NW Suite 200 Washington, DC 20005 (202) 898-2207 jramsay@naruc.org THOMAS W. MERRILL Counsel of Record 435 West 116th Street Room 725 New York, NY 10027 (212) 854-9764 tmerri@law.columbia.edu Counsel for Amici Curiae November 2012