National Ass'n for the Advancement of Colored People v. Federal Power Commission

Mr. Chief Justice Burger,

concurring in the judgment.

I join the judgment of the Court even though I find it difficult to understand why the result reached by the Commission was not a reasonable administrative determination. The Court of Appeals read the Commission’s order in this case as “ambiguous”:

"We do not know whether its order asserted a lack *673of jurisdiction to adopt (1) the specific proposed rule, or (2) any rule relating to employment discrimination by regulatees.” 172 U. S. App. D. C. 32, 34, 520 F. 2d 432, 434 (emphasis in original).

In context, the FPC’s order could fairly have been read simply as rejecting the rule proposed by the NAACP. This is particularly true in view of the Commission’s auditing practice of disallowing duplicative costs, including those occasioned by backpay awards. Ante, at 668.

In contrast to this standard administrative practice, the rule proposed to the Commission called for extensive regulation of the employment practices of industries subject to FPC jurisdiction. Under the proposed rule, the Commission would, among other things, be required to: (a) enumerate unlawful employment practices; (b) require regulatees to establish a written program for equal employment opportunity which would be filed with the Commission; and (c) provide for individual employees to file discrimination complaints directly with the Commission.

The Court of Appeals correctly recognized that this far-reaching proposal would put the Federal Power Commission into the business of regulating the everyday employment practices of regulated industries. The necessary result of this intrusion would be the imposition of another layer of federal regulation of the same subject matter, with the inevitable potential for conflict between administrative agencies.* If Congress had *674mandated duplicative regulation, the result, however inefficient, would be none of our concern. But Congress did not do so. It centralized responsibility in the Equal Employment Opportunity Commission. To the extent that the judiciary orders administrative responsibility to be diffused, congressional intent is frustrated, regulated industries are subjected to the commands of different voices in the bureaucracy, and the agonizingly long administrative process grinds even more slowly. To suggest, for example, that .the FPC could deny a license on account of a regulatee’s discriminatory employment practices, 172 U. S. App. D. C., at 44, 520 F. 2d, at 444, is to thrust the Commission into a complex, volatile area for which Congress has already assigned authority to the EEOC.

No reason whatever exists to assume that Congress intended to enmesh the FPC so deeply in the regulation of employment practices. The Commission was thus confronted with a duplicative and unprecedented proposal ; it could appropriately refuse to adopt the rule as beyond its jurisdiction; since the Court of Appeals concluded that the FPC was correct in this respect, the Commission’s order could appropriately have been affirmed.

A former Assistant Secretary of the Treasury has observed:

“The proliferation of government controls has, perhaps inevitably, led to internal conflicts. In some cases, the rules of a given agency work at cross-purposes with each other. . . . More serious and more frequent are the contradictions between the rulings of two or more *674government agencies where the regulated have little recourse.” Weidenbaum, The New Wave of Government Regulation of Business, 15 Business and Society Review 81, 84 (1975).

See also U. S. News & World Report, May 10, 1976, p. 96. And as Mr. Justice Douglas reminded us:

“The bureaucracy of modern government is not only slow, lumbering, and oppressive; it is omnipresent.” Wyman v. James, 400 U. S. 309, 335 (1971) (dissenting opinion).