I concur without reservation in Judge Meskill’s opinion. However, I believe we should avoid the waste, delay and procedur*651al ball-bouncing between appellate courts that may occur if TECA, which is not bound by our views, declines in whole or in part to assume jurisdiction over the appeal stayed by it. If it declined jurisdiction altogether the case could be caught on a jurisdictional “dead center,” dangling in limbo. If, as seems more probable, it concurs in our view as to its power to decide the EPAA issue raised by appellants, it may nevertheless decide that the Tax Injunction Act issue should be resolved by us. See Mobil Oil Corp. v. Tally, 639 F.2d 912, 916-18 (2d Cir.), cert. denied, 452 U.S. 967, 101 S.Ct. 3123, 69 L.Ed.2d 981 (1981); Texaco Inc. v. Department of Energy, 616 F.2d 1193, 1196 (Em.App.1979). In either event there would be needless waste and delay to all concerned, involving a motion to us for reconsideration so that the appeal could be decided on the merits and remanded with directions. By that time the panel reconsidering the matter (which might not be the same as this panel) would be forced to expend more time and effort in reeducating itself as to facts and issues with which we are already familiar.
Rather than risk such further delay and expense, I believe it advisable for us to indicate at this time our views as to the merits of the appeal, so that if TECA declines to dispose of the issues, a motion for reconsideration by us can be disposed of promptly and the case remanded to the district court with appropriate directions. In my view Scallop’s declaratory judgment action, although labelled “defensive” by the district court, does not arise “by way of defense” within the meaning of § 211(a). The federal Tax Injunction Act therefore does not bar the exercise of federal jurisdiction under § 211(a).
To me the term “defense” means a formal denial of liability by a party against whom an action has been commenced, not a declaratory or injunctive action seeking affirmative and coercive relief. Cf. Stone & Webster Engineering Corporation v. Ilsley, 690 F.2d 323, 327-28 (2d Cir.1982) (declaratory plaintiff who asserts a federal right on the face of the complaint properly invokes federal question jurisdiction in satisfaction of Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908)). If a declaratory or injunctive action were a “defense,” not only would the requirement of a well-pleaded federal complaint be threatened contrary to our holding in Stone & Webster, supra, but the exclusive jurisdiction provision of § 211(a) would become a dead letter, since a party questioning liability by virtue of the EPAA could always sue in the state court for declaratory or injunctive relief. Such a concept of “defense” would violate § 211(a)’s policy in favor of funneling all issues of significance concerning federal energy policy into federal courts, which Congress deemed more familiar with and sympathetic to the purposes of the EPAA and to the need for uniform interpretation and application of federal laws. The district court is therefore obligated to decide whether the gross receipts tax, N.Y. Tax Law § 182, amounted to a state price control conflicting with and preempted by the EPAA and thus void under the Supremacy Clause.1
Another issue worthy of mention is my disagreement with the state’s contention that the expiration of EPAA on September 30, 1981, terminated TECA’s jurisdiction to decide Scallop’s claim of federal preemption of jurisdiction over the subject matter of its claim. Whatever the ultimate effect of the expiration of the EPAA on the merits of Scallop’s claim that a pre-October 1, 1981 passthrough was preempted by the federal law, which we leave to TECA, it is clear that such expiration cannot act to strip TECA of appellate jurisdiction under § 211(b)(1) of the ESA, particularly when Congress provided in 15 U.S.C. § 760g that “such expiration shall not affect any action or pending proceedings ... not finally determined on such date, ... based upon any act committed or liability incurred prior to *652such expiration date.” See Tully v. Mobil Oil Corp., 455 U.S. 245, 247-48, 102 S.Ct. 1047, 1049-1050, 71 L.Ed.2d 120 (1982) (remanding to TECA for reconsideration of effect of expiration of federal price control authority on the: pre-October 1, 1981 antipassthrough provision).
. The issues do not appear’ to be affected by New York’s recent repeal of the anti-pass-through provisions of N.Y. Tax Law § 182.11. See 1983 N.Y. Laws, Ch. 18, § 16 (S. 3457-c; A. 4257-A) (enacted February 28, 1983).