concluding that “the apparent lack of detrimental reliance ... is the crucial point supporting retroactivity”
How later courts described this case
- concluding that “the apparent lack of detrimental reliance ... is the crucial point supporting retroactivity”
- reliance on Federal Power Commission treatment of state tax under National Gas Act “would have been foolhardy” because subsequent “enactment of [Natural Gas Policy Act’s] substantially new regulatory regime ... undermined any assurance” that such treatment would “withstand scrutiny under the [Natural Gas Policy Act]”
- in determining that it was permissible for Commission to apply new interpretation of law, “the apparent lack of detrimental reliance ... is the crucial point”
- “[T]he apparent lack of detrimental reliance on the part of the [parties] is the crucial point” supporting retroactivity
Written by the judges who cited it.
The opinion
SENTELLE, Circuit Judge,
concurring:
I join without reservation in the holding of the court. I write separately only to place a little distance between myself and what I deem to be an overstated dictum. After describing a hypothetical tax, the majority states that with the majority’s proposed variations “the Kansas tax would, in our view, be sufficiently like a tax ‘imposed on the production of natural gas’ to be recoverable under § 110.” Maj. op. at 1485. As no such tax is before us, for us to authoritatively render an opinion on what it would be constitutes nothing less than the advisory opinion that Article III courts have held ourselves unable to render since the earliest days of constitutional jurisprudence. See, e.g., Flast v. Cohen, 392 U.S. 83, 96 , 88 S.Ct. 1942, 1950 , 20 L.Ed.2d 947 (1968) (“[T]he oldest and most consistent thread in the federal law of justici-ability is that the federal courts will not give advisory opinions.” (Internal quotations and citations omitted)); WRIGHT, MilleR & Cooper, 13 Federal Praotioe AND Prooedure § 3529.1 (1984) (detailing the long history of the rule forbidding advisory opinions). We have already, in my view, crossed the line of appropriate Article III jurisprudence in dealing with § 110 tax treatment when the prior panel stated “[i]f a state sought to capitalize the annual production (or revenue) enjoyed by each producer by multiplying it by a single fixed figure, the [property] tax would plainly be similar enough to a production tax to qualify under § 110.” Colorado Interstate Gas Co. v. FERC, 850 F.2d 769 , 772 (D.C.Cir.1988). I think it time we quit advising state legislatures on how to draft their tax statutes and confined ourselves to construing the statutes actually before us.