Plaintiffs Brief — Maryland v. Louisiana

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Preme Court, U. &

FILED

MAR 29 1979

=

MICHAML RODAK, JR., CLERR

Supreme Court of the United States ;

OCTOBER TERM, 1978

No. N Q > Original |

STATE OF MARYLAND,

STATE OF ILLINOIS,

STATE OF INDIANA,

COMMONWEALTH OF MASSACHUSETTS,

STATE OF MICHIGAN,

STATE OF NEW YORK,

STATE OF RHODE ISLAND AND

PROVIDENCE PLANTATIONS,

STATE OF WISCONSIN,

Plaintiffs,

Vv.

STATE OF LOUISIANA,

Defendant.

BRIEF IN SUPPORT OF MOTION FOR LEAVE

TO FILE COMPLAINT

STEPHEN H. SACHS

Attorney General of Maryland

1400 One South Calvert Building

Baltimore, Maryland 21202

WILLIAM J. SCOTT

Attorney General of Illinois

500 South Second

Springfield, Illinois 62706

THEODORE L. SENDAK

Attorney General of Indiana

219 State House

Indianapolis, Indiana 46204

FRANCIS X. BELLOTTI

Attorney General of Massachusetts

One Ashburton Place

Boston, Massachusetts 02108

FRANK J. KELLY

Attorney General of Michigan

525 West Ottawa Street

Lansing, Michigan 48913

March 29, 1979

ROBERT ABRAMS

Attorney General of New York

#2 World Trade Center

New York, New York 10047

DENNIS J. ROBERTS II

Attorney General of Rhode Island

Providence County Courthouse

Providence, Rhode Island 0290

BRONSON C. La FOLLETTE

Attorney General of Wisconsin

114E State Capitol

Madison, Wisconsin 53702

EDWARD BERLIN

FRED W. GELDON

LEVA, HAWES, SYMINGTON,

MARTIN & OPPENHEIMER

815 Connecticut Ave., N.W.

Washington, D.C. 20006

Special Counsel to Plaintiffs

The Daily Record Co., Baltimore, Md. 21202 ee

TABLE OF CONTENTS

IN oi ccncincbirctshac cas berascauasnauunsoneensontaldane

RU UNT EIEIO T UND: sovccieccdscccvcvscsqssovcecipnvesonensevies

STATUTES AND CONSTITUTIONAL PROVISIONS

Re nel edb nawiicaseenkaabiaele

ARGUMENT:

I.

II.

SOOO EERE EEE HEHE EEE E SESE EEE EE EEEEEEEEEEEEHEEEEEEESEHEEEE HEHE

Plaintiff States Have Standing To

Challenge The Louisiana First Use Tax

A.

C.

Plaintiff States Have Standing In

Their Proprietary Capacities To

Challenge The Louisiana First Use

AE INI Ai canucativaah cab iccainiebeieclicia erhiecibaaalareisien Saas

Plaintiff States Have Standing To

Challenge The Louisiana First Use

Tax As Parens Patriae Of Their

Citizens Who Are Consumers Of

UE I i cciiciata ccatisiaiarstvesenciun

This Suit Is Not Barred By The

Decision In Arizona v. New Mexico

The Louisiana First Use Tax Raises

Important And Substantial Federal

Questions And Is In Conflict With

Applicable Decisions Of This Court ....

A.

The Louisiana First Use Tax Con-

stitutes An Unconstitutional And

Discriminatory Burden Upon Inter-

state Commerce .............ccccceeees sive

1. The Louisiana First Use Tax Is

a Tax On Interstate Commerce

2. The Louisiana First Use Tax Is

Applied On Certain Activities

—

12

13

14

18

19

19

li

PAGE

That Do Not Have A Sufficient

Nexus With Louisiana .............. 21

3. The Louisiana First Use Tax Is

Not Fairly Apportioned ........... 21

4. The Louisiana First Use Tax

Discriminates Against Inter-

state COMMELCE ............ccecsceeeees 22

5. The Louisiana First Use Tax Is

Not Fairly Related To Services

Provided By Louisiana ............ 24

B. The Louisiana First Use Tax Vio-

lates The Supremacy Clause .......... 26

C. The Louisiana First Use Tax Is An

| Unconsitutional Impost Or Duty

(Jah TOI aaivesvisscsecedniasescianstesbbaasennes 28

1. The Louisiana First Use Tax

Reaches Imports. ..............:00000+ ae

2. The Louisiana First Use Tax

Would Complicate The Federal

Government’s Foreign Trade

FMRI. sicsiaceinaninimaigtenigaasteuaoms 30

3. The Louisiana First Use Tax

Would Disturb Th armony

Among The States 4...........00..0 31

D. The Louisiana First Use Tax Un-

constitutionally Impairs The Obli-

gation of Contracts ..................0.00, 32

E. The Louisiana First Use Tax De-

nies Equal Protection Of The Laws 34

COOORES SIRE ~ cnc sicisdizvsnendabinnasaiitecntene cite ine 35

PAPI airs asicaObidinribcsinelocasiceed tp Re ae eae la

ill

TABLE OF CITATIONS

Cases

PAGE

Allied Structure Steel Co. v. Spannaus, —_—._ U.S.

i Oy.) ee 11, 32, 33, 34

Arizona v. New Mexico, 425 U.S. 794 (1976) ....7, 8, 14,

15, 16,17

Arkansas v. Texas, 346 U.S. 368 (1953) ............. 12

Boston Stock Exchange v. State Tax Commis-

SE EF, CBRE CLOT 1) ccccccreccicceccccroccsscccessess 19, 23

Brown v. Maryland, 25 U.S. (12 Wheat.) 419

Neen os decasanbnsscnueabactecenescoece 30

California v. Texas, ___. U.S. ___., 57 L. Ed. 2d

en .. ssubucpecnneesccebose 14

Department of Revenue of Washington v. Associ-

ation of Washington Stevedoring Compan-

ies, 435 U.S. 734 (1978) .......... 9,11, 19, 21, 24, 29, 31

Doremus v. Board of Education of Hawthorne,

I NOE ooo... sccccasconbaccsvcnessvcosccceeseces 16

East Ohio Gas Co. v. Tax Commission of Ohio,

RS MED CEL) cccccccccoccccccscscccceccoes 9,11, 19, 20, 30

Edwin W. Edwards v. Transcontinental Gas Pipe

Line Corp., No. 216867 (19th Judicial District

Court, La., filed Sept. 22, 1978) oo... 15

Federal Energy Regulatory Commission v.

McNamara, Civil Action No. 78-384 (M.D.

Df, ) ER 6, 16

Federal Power Commission v. Hunt, 376 U.S. 515

ee aswesecpaasnssdeconaceroes 17

Federal Power Commission v. Tennessee Gas

Transmission Co., 371 U.S. 145 (1962) ......... 17

Georgia v. Pennsylvania Railroad Co., 324 U.S.

Teen cases cenccsccenssoocssesscss 7,13, 14

iv

PAGE

Halliburton Oil Well Cementing Co. v. Reily, 373

Rk SR A semis aitigiahsentcieninthininaviniegshtimniladaacnishadiatt 23

Hawaii v. Standard Oil Co., 405 U.S. 251 (1972) 13

Home Building & Loan Association v. Blaisdell,

B08 TID Fae TIF ~ siichithiniticmtinnwuenn 11, 32

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) 12

Illinois Natural Gas Co. v. Central Illinois Public

Service Co., 314 U.S. 498 (1942) .......... 20

Louisiana v. Board of Supervisors, 228 La. 951,

OR Si, R-T Ce Marden recs cnneisnandisceccagetocns 16

Maryland v. Wirtz, 392 U.S. 183 (1968) .............. ie

Memphis Natural Gas Co. v. Stone, 335 U.S. 80

|, RARITY EEN BRE BLOF e- OMIE N e Br ULL Uri ny FP 21

Michelin Tire Corp. v. Wages, 423 U.S. 276 (1976)

RE IR Soy PR I POON eT eT Bec MR Ee Ne 11, 28, 29, 30, 31

Michigan-Wisconsin Pipe Line Co. v. Calvert,

SES RE: BE CRIED tcicdidintssnidcervcteerveteccbotas 9, 20, 21, 22

Missouri ex rel. Barrett v. Kansas Natural Gas

ts Cris, Ce GIO sictcicsetistevnctantcscoctiveroninns 27

Muskrat v. United States, 219 U.S. 346 (1911) . 16

North Dakota v. Minnesota, 263 U.S. 365 (1923) 12

Northern Natural Gas Co. v. State Corporation

Commission, 372 U.S. 84 (1963)... 27

Northwestern States Portland Cement Co. v.

Minnesota, 358 U.S. 450 (1959) wo. 9,21, 22

Oklahoma v. United States Civil Service Com-

mission, 330 U.S. 127 (1087) .....cccccccocosceseceeesse 12

Pennsylvania v. West Virginia, 262 U.S. 553

(HBTIBY secscvecccss aiecsensancmaidiellabdaniabictceenitinsaiinats 7,12, 18

Phillips Petroleum Co. v. Wisobnein: 347 U.S. 672

UREN ARCA MeN Oy STEEN a REST IE RTs OAS 27

Raymond Motor Transportation, Inc. v. Rice, 434

as I TEE ities bined tatnasinatabctetnencigueestitelabiaiis 35

v

State Tax Commission of Mississippi v. Inter-

state Natural Gas Co., 284 U.S. 41 (1981) ..

State Water Control Board v. Washington

Suburban Sanitary Commission, 61 F.R.D.

I I a las

Tennessee Gas Pipe Line Company v. Federal

Energy Regulatory Commission, No. 78-3813

PAGE

21

16

CORR Cae. TER EIS. BB, BOTED) ciciccccstescccscscissccsee 6

United Fuel Gas Co. v. Hallanan, 257 U.S. 277

9 IRR RRSGHSORE SE RES U ORARY R Mane Frcs SN 19

Wheeling Steel Corp. v. Glander, 337 U.S. 562

OES NESSE Ege (eC an are rns Cae re ee 34

Youngstown Sheet & Tube Co. v. Bowers, 358

I I a a bdoacas 31

Constitutional Provisions and Statutes

United States Constitution:

Article I, section 8, clause 3. ............ccccccssesseees 2

Article I, section 10, clause 1 .....................00. 3, 32

Article I, section 10, clause 2 .................ccce000. 3, 28

Article III, section 2, clauses 1 and 2 .......... 1

cc delane 2,3

Section 1, fourteenth amendment .................. 3

United States Statutes:

52 Stat. 821-33, Title 15, U.S. Code, Sections

II ioisisacecctsnetaniassernlaiscenines 5, 26, 27

62 Stat. 927, Title 28, U.S. Code, Section 1251

gee een A Rae Eames oN 1,7, 12

62 Stat. 932, Title 28, U.S. Code, Section 1341

ERTL AERC SUR ne Ree. PRON 16

67 Stat. 29-32, Title 43, U.S. Code, Sections

I SPI nassiicinassicncgcesonantddgaessecesénesne 5

vi

PAGE

67 Stat. 462-70, Title 43, U.S. Code, Sections

SAE TAG ksinnnissveieeuscanne 5, 26, 28

76 Stat. 72, Title 19, U.S. Code, Section 1202,

Schedule 4, Part 10, Item 475.15 (1976) 30

86 Stat. 280-89, Title 16, U.S. Code, Sections

1451-1464 (1976), as amended by 92 Stat.

629, Pub. L. No. 95-372 (1978) .............. 25

92 Stat. 3350, Pub. L. No. 95-621 (1978) ...... 26

Louisiana Statutes:

La. Rev. Stat. Ann. §§ 47:631-646 (West 1970

ES TIGR: Sih tnaiadeaninidbsaieaanien 4, 23

Act No. 436, 1978 La. Sess. Law Serv. 842

(West) (to be codified as La. Rev. Stat.

Pe BSTC G . citetcsitinicdntsvencindieeailan 3, 5, 23, 34

Act No. 294, 1978 La. Sess. Law Serv. 482

(West) (to be codified as La. Rev. Stat.

Pete, BE ATRBOA-TTIGD cisisitsccccscccsceonsocassndins passim

Act No. 293, 1978 La. Sess. Law Serv. 480

(West) (to be codified as La. Rev. Stat.

ps | ERATE Se enon ee eet Ae 3, 4, 25

La. Rev. Stat. Ann. § 47:1575 (West) ............ 16

La. Rev. Stat. Ann. § 47:1576A (West Supp.

WO -eidiciiniewscnnssiedentipeibiaibiaaa ae eee a 17

Act No. 361, 1978 La. Sess. Law Serv. 704

(West) (to be codified as La. Rev. Stat.

Pe: Te NED icsencenserscscinisnitniintinsein 25

Administrative Proceeding

State of Louisiana First Use Tax in Pipeline Rate

Cases, Docket No. RM78-23:

Order No. 10, 43 Fed. Reg. 45,553 (Oct. 3,

SITU. csunnnieCesAtinsiniiciasiiasapetlacsaccttniatiadaems 5

Vii

PAGE

Order No. 10-A, 43 Fed. Reg. 60,438 (Dec. 28,

UN eicibiaccnansiad sind cpleaniasadaNlarcsbiiehaavoessaktenng 6

Order No. 10-B, 44 Fed. Reg. 13,460 (Mar. 12,

1 SATE SER ALS ERC TT LT TCO ER aD 6

Miscellaneous

New York Times, Mar. 19, 1979

IN THE

Supreme Court of the United States

OcTOBER TERM, 1978

No. , Original

STATE OF MARYLAND,

STATE OF ILLINOIS,

STATE OF INDIANA,

COMMONWEALTH OF MASSACHUSETTS,

STATE OF MICHIGAN,

STATE OF NEW YORK,

STATE OF RHODE ISLAND AND

PROVIDENCE PLANTATIONS,

STATE OF WISCONSIN,

Plaintiffs,

v.

STATE OF LOUISIANA,

Defendant.

BRIEF IN SUPPORT OF MOTION FOR LEAVE

TO FILE COMPLAINT

JURISDICTION

By this action Maryland, Illinois, Indiana, Massachu-

setts, Michigan, New York, Rhode Island, and Wiscon-

sin challenge the constitutionality of the Louisiana

First Use Tax on natural gas passing through Louisi-

ana in transit to other states.

This controversy between the plaintiff states and the

State of Louisiana is within the original and exclusive

jurisdiction of this Court under article III, section 2,

clauses 1 and 2 of the Constitution of the United States

and 62 Stat. 927, Title 28, United States Code, Section

1251(a)(1) (1976).

2

QUESTION PRESENTED

Whether a challenge by plaintiff states to the

constitutionality of the Louisiana First Use Tax,

imposed on natural gas entering into and passing

through Lonisiana while in transit to other states,

presents an appropriate case for this Court’s exercise of

its exclusive, original jurisdiction, where plaintiffs

present facts which establish that:

I. The First Use Tax constitutes an unconstitu-

tional, discriminatory burden upon inter-

state commerce.

II. The First Use Tax violates the supremacy

clause of the United States Constitution.

III. The First Use Tax is an unconstitutional

impost or duty on imports.

IV. The First Use Tax unconstitutionally im-

pairs the obligation of contracts.

V. The First Use Tax denies equal protection of

the laws. ry

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

Article I, section 8, clause 3 of the Constitution of the

United States provides as follows:

The Congress shall have Power. . . To regulate

Commerce with foreign Nations, and among the

several states, and with the Indian. Tribes.

Article VI, clause 2 of the Constitution of the United

States provides as follows:

This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof;

and all Treaties made, or which shall be made,

under the Authority of the United States, shall be

the supreme Law of the Land; and the Judges in

every State shall be bound thereby, any Thing in

3

the Constitution or Laws of any State to the

Contrary notwithstanding.

Article I, section 10, clause 2 of the Constitution of the

United States provides as follows:

No State shall, without the Consent of the

Congress, lay any Imposts or Duties on Imports or

Exports, except what may be absolutely necessary

for executing its inspection Laws: and the net

Produce of all Duties and Imposts, laid by any

State on Imports or Exports, shall be for the Use of

the Treasury of the United States; and all such

Laws shall be subject to the Revision and Controul

of the Congress.

Article I, section 10, clause 1 of the Constitution of the

United States provides as follows:

No State shall... pass any. . . Law impairing

the Obligation of Contracts... .

Section 1 of the fourteenth amendment to the

Constitution of the United States provides as follows:

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty or property,

without due process of law; nor deny to any person

— its jurisdiction the equal protection of the

aws.

The First Use Tax on Natural Gas, Act No. 294, 1978

La. Sess. Law Serv. 482 (West) (to be codified as La.

Rev. STAT. ANN. §§ 47:1301-1307), is set out in full in

Exhibit A to the accompanying Complaint, pp. 1a-8a.

The First Use Tax on Natural Gas — Severance Tax

Credit, Act No. 436, 1978 La. Sess. Law Serv. 842 (West)

(to be codified as La. Rev. Stat. ANN. § 47:647), is set

out in full in Exhibit B to the accompanying Complaint,

pp. Ya-12a.

The First Use Tax Trust Fund, Act No. 293, 1978 La.

Sess. Law Serv. 480 (West) (to be codified as La. REv.

4

Strat. ANN. § 47:1351), is set out in full in the Appendix

to this brief, pp. la-4a., infra.

STATEMENT

The purpose of this suit is to set aside, on constitu-

tional grounds, Louisana’s First Use Tax on Natural

Gas (hereinafter referred to as “First Use Tax”).!

Effective April 1, 1979, the State of Louisiana intends

to impose a First Use Tax at a rate of seven cents per

thousand cubic feet (““Mcf’’) upon the first occurrence of

any “use”? of natural gas within Louisiana, providing

that such gas is not otherwise subject to a severance,

production or import tax levied by any state, territory or

by the United States. Since Louisiana imposes a

severance tax upon all intrastate production,’ the

incidence of the First Use Tax is solely upon natural

gas produced outside Louisiana, which, for practical

purposes, means natural gas produced outside the

territorial limits of the United States, from acreage

controlled by the Federal Government.

The alleged purpose of the tax is to compensate

Louisiana for damage to its waterbottoms, barrier reefs,

and shorelines. § 47:1301. Contractual provisions that

would place responsibility for state taxes on the

producers of natural gas are declared to be “against

public policy and unenforceable to that extent.”

! First Use Tax on Natural Gas, Act No. 294, 1978 La. Sess.

Law Serv. 482 (West) (to be codified as La. Rev. Stat. ANN.

§§ 47:1301-1307). A copy of the First Use Tax is attached to

the Complaint as Exhibit A.

2 Under the Act “use” includes, among other activities, the

sale, transportation or processing of natural gas, § 47:1302(8),

but it does not include “natural gas used or consumed in the

manufacture of fertilizer and anhydrous ammonia within the

state.” § 47:1303A.

3 La. Rev. Stat. ANN. §§ 47:631-646 (West 1970 and Supp.

1978.) The severance tax on intrastate production of natural

gas is also set at seven cents per Mcf. § 47:633(9) (Supp. 1978).

5

§ 47:1303C. Contemporaneous with the passage of the

First Use Tax, the Louisiana legislature enacted a

severance tax credit‘ which permits in-state producers

liable for the First Use Tax to credit that liability,

dollar-for-dollar, against their severance tax liability.

The First Use Tax will be levied against substantial

quantities of natural gas produced from the Outer

Continental Shelf (“OCS”), a domain under the control

of the Federal Government outside the seaward boun-

daries of the State of Louisiana. Gas from this

federally-controlled domain is transported through

Louisiana by interstate pipelines.®

The Federal Energy Regulatory Commission

(“FERC”), through the adoption of an automatic

tracking mechanism,’ has provided a procedure for

4 First Use Tax on Natural Gas — Severance Tax Credit,

Act No. 436, 1978 La. Sess. Law. Serv. 842 (West) (to be

codified as LA. REv. STat. ANN. § 47:647). A copy of the First

Use Tax on Natural Gas — Severance Tax Credit is attached

to the Complaint as Exhibit B.

> The Outer Continental Shelf is defined and delineated in

the Outer Continental Shelf Lands Act, 67 Stat. 462-70, 43

U.S.C. §§ 1331-1343 (1976). The Submerged Lands Act, 67

Stat. 29-32, 43 U.S.C. §§ 1301-1315 (1976), passed several

months earlier in 1953, draws the line of demarcation

between state and federal domains.

6 Each of these pipelines is a “natural gas company” as

defined in section 2 of the Natural Gas Act, 52 Stat. 821, 15

U.S.C. §717a(6) (1976), and is regulated by the Federal

Energy Regulatory Commission (““FERC’’) as successor to the

Federal Power Commission. As part of the Natural Gas Act’s

comprehensive regulatory scheme, the purchase of natural

gas from producers, its transportation in interstate com-

merce, and its sale to distribution companies must be made

pursuant either to certificates of public convenience and

ae or rate schedules or tariffs issued or approved by

7 State of Louisiana First Use Tax in Pipeline Rate Cases,

Docket No. RM 78-23, Order No. 10, “Order Establishing

Procedures Governing Pipeline Recovery of the State of

Louisiana First Use Tax,” issued August 28, 1978, 43 Fed.

6

consumer reimbursement of any First Use Tax pay-

ments by pipelines. Although those charges are to be

collected subject to refund, pending a final judicial

determination of the constitutionality of the tax, the

immediate burden and incidence of the tax will be

passed directly to the ultimate consumers.

Based on the volumes of natural gas entering Louisia-

na from the OCS in 1977, it has been estimated by FERC

that the First Use Tax will be imposed on approximately

3,190 millicn Mcf® resulting in the imposition of a 225

million dollars per annum charge on consumers.

Each of the eight plaintiff states is a significant

consumer of natural gas, and each plaintiff state and its

citizens will be substantially harmed by the First Use Tax

and will suffer economic burdens and hardships.

Reg. 45,553 (Oct. 3, 1978); Order No. 10-A, “Order on

Rehearing, Modifying Prior Order, Amending Regulation

and Requesting Comment,” issued December 20, 1978, 43

Fed. Reg. 60,438 (Dec. 28, 1978), appeal docketed, Tennessee

Gas Pipe Line Co. v. Fed. Energy Regulatory Comm’n, No.

78-38-13, et al. (5th Cir. Dec. 26, 1978); and Order No. 10-B,

“Order on Rehearing, Modifying Prior Order and Amending

Regulations,” issued March 2, 1979, 44 Fed. Reg. 13,460 (Mar.

12, 1979).

* This estimate is based on total OCS production entering

Louisiana in 1977 of 3,647, 513, 674 Mcf, less 220 million Mcf

in shrinkage during processing, 100 million Mcf reserved for

the producer’s own use or direct industrial sales, and

140 million Mcf consumed in the production of fertilizer and

anhydrous ammonia in Louisiana. See Complaint, para-

graph 14, Fed. Energy Regulatory Comm’n v. McNamara,

Civil Action No. 78-384 (M.D. La., filed Sept. 29, 1978). The

First Use Tax will also be imposed upon all volumes of

natural gas that may be imported from foreign countries

without severance taxes and imported through Louisiana.

7

SUMMARY OF ARGUMENT

I. PLAINTIFF STATES HAVE STANDING To CHALLENGE

THE LOUISIANA First USE TAx.

Plaintiff states are suing both in their proprietary

capacities and as parens patriae. In their proprietary

capacities, plaintiff states are themselves major consu-

mers of natural gas subject to the First Use Tax and will

be directly injured by that tax. A state may sue in its

proprietary capacity. Maryland v. Wirtz, 392 U.S. 183

(1968). This Court is the only federal forum in which

plaintiffs can assert their claim. 62 Stat. 927, 28 U.S.C.

§ 1251(a)(1) (1976).

Plaintiff states also sue as parens patriae to prevent the

substantial harm that the First Use Tax would cause to

the health and welfare of their citizens and to the

economic vitality of the commercial activities of those

citizens. Pennsylvania v. West Virginia, 262 U.S. 553

(1923); Georgia v. Pennsylvania Railroad Co., 324 U.S.

439 (1945).

The decision in Arizona v. New Mexico, 425 U.S. 794

(1976), in which this Court declined to accept an original

action by Arizona challenging the constitutionality of an

electrical energy tax imposed by New Mexico on utilities

that retailed to Arizona customers, should not bar the

filing of this case.

First, Arizona did not allege and did not face immediate

harm from the challenged tax, because the Arizona

utilities had refused to pay the tax and had challenged it

judicially. In this case, however, the pipeline companies

must pay the First Use Tax even before its constitutional-

ity has been determined, and have been granted the right

by FERC immediately to pass that cost on to consumers.

Thus, the First Use Tax will have an immediate, direct

impact on the rates paid for natural gas by plaintiff states

and their citizens.

8

Second, whereas in Arizona v. New Mexico a subdivi-

sion of Arizona had joined in a pending New Mexico state

court challenge to the tax, none of the plaintiff states or

their subdivisions are parties to any pending judicial

challenge to the First Use Tax. Neither the declaratory

judgment action filed by the State of Louisiana in state

court nor an action brought by FERC in federal district

court and stayed pending the outcome of the state court

litigation represent appropriate actions in which the

plaintiffs can litigate their claim. The proper forum,

under the Constitution, is the Supreme Court of the

United States.

Third, this case raises issues of national significance

and federal law — including the conflict between the First

Use Tax and federal energy regulation — that were not

raised by Arizona’s challenge to the New Mexico

electrical energy tax.

Finally, this case, unlike Arizona v. New Mexico,

involves a challenge by a cross section of states that

represent multiple regions of the country to the collection

of hundreds of million dollars annually by a single state

hundreds of miles away. If Louisiana is allowed to impose

its First Use Tax upon natural gas in interstate

commerce, other states could race to impose countervail-

ing measures on comparable products and our national

economy would regress into the precise interstate

feudalism that our Constitution and our federal system

were designed to prevent.

II. THE LouIsiIANA First Use TAx RaAIses IMPORTANT

AND SUBSTANTIAL FEDERAL QUESTIONS AND Is IN

CONFLICT WITH APPLICABLE DECISIONS OF THIS

Court.

The First Use Tax offends multiple provisions of the

United States Constitution:

9

A. The First Use Tax unconstitutionally burdens

interstate commerce. The First Use Tax is applied to

natural gas from a federal domain, and not to activities

with a substantial nexus to Louisiana; it is not fairly

apportioned; it discriminates against interstate com-

merce; and it is not fairly related to services provided by

Louisiana. Department of Revenue of Washington v.

Association of Washington Stevedoring Companies, 435

U.S. 734 (1978).

The flow of natural gas in pipelines from and to

points outside the state constitutes interstate commerce,

East Ohio Gas Co. v. Tax Commission of Ohio, 283 U.S.

465 (1931), which a state may not tax. Michigan-

Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157 (1954).

The “‘uses” taxed by Louisiana are not “separate local

activities” that may permissibly be taxed. Nor do such

uses as transportation or transfer or sale establish a

sufficient nexus to Louisiana to justify the tax.

The First Use Tax is not fairly apportioned. It is not

related to investment, receipts, or other indicia of a

nexus with Louisiana. The tax exposes both natural gas

from the OCS and imported natural gas to the burden

of multiple taxation by other states through which the

same gas would pass. Northwestern States Portland

Cement Co. v. Minnesota, 358 U.S. 450 (1959);

Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S.

157 (1954).

The First Use Tax discriminates against interstate

commerce in several respects. First, it taxes OCS gas

moving through Louisiana but does not tax gas

produced in Louisiana (including gas produced from

that part of offshore Louisiana that remains under

state control) or gas produced in states that impose

severance taxes, even though such gas enjoys the same

protections, and causes the same alleged damages, as

OCS gas. Second, the Louisiana Severance Tax Credit

10

permits taxpayers to credit their First Use Tax liability

against their liability for Louisiana’s severance tax,

thereby favoring pipelines that produce natural resour-

ces subject to the severance tax and burdening those

that do not. Third, natural gas consumed in specified

uses, such as production of sulphur, fertilizer, and

anhydrous ammonia, is exempt from the First Use Tax

if those activities occur in Louisiana, but not if they

occur in other states.

The First Use Tax is not fairly related to services

provided by Louisiana. The size of the tax, which will

return more than $225,000,000 annually to the State of

Louisiana, is utterly disproportionate to the minimal

burdens which the taxed activity places upon the state

or to the minimal privileges afforded by the state.

Although the First Use Tax and Severance Tax have

been set at equivalent rates, the latter is intended to

compensate Louisiana for loss of its natural resources,

a loss not caused by the “use” of OCS gas. The

excessiveness of the First Use Tax is also shown by the

limited proportion of the revenues collected that are

earmarked for the statutory purpose of protecting the

environment, by the collection of other taxes from the

same taxpayers, and by the availability under the

Coastal Zone Management Act of federal grants to

compensate states harmed by OCS development.

B. The First Use Tax violates the supremacy clause.

The Natural Gas Act, the Natural Gas Policy Act, and

the Outer Continental Shelf Lands Act constitute a

comprehensive and preemptive program for the regula-

tion of natural gas.

More specifically, the First Use Tax, by voiding

contractual provisions requiring reimbursement of the

tax by producers, conflicts with numerous certificates of

public convenience and necessity issued by FERC that

incorporate the terms of underlying contracts contain-

11

ing reimbursement provisions. The First Use Tax

conflicts with the requirement in the Outer Continental

Shelf Lands Act that state taxation laws shall not

apply to the OCS.

C. The First Use Tax is an unconstitutional impost or

duty on imports. The tax on its face applies to imports

and is imposed before the “original package” is broken

and before the gas loses its status as an import. East

Ohio Gas Co. v. Tax Commission of Ohio, 283 U.S. 465

(1931). The First Use Tax would create a special

preference for domestic goods and conflict with the

federal government’s foreign trade policy. Michelin Tire

Corp. v. Wages, 423 U.S. 276 (1976). It could seriously

inhibit the importation of natural gas from Canada and

Mexico. And the tax would disturb harmony among the

states. Department of Revenue of Washington v.

Association of Washington Stevedoring Companies, 435

U.S. 734 (1978).

D. The First Use Tax impairs the obligation of

contracts by nullifying provisions requiring producers

to reimburse pipeline companies for the tax. This

nullification clause serves no legitimate end, either by

raising added revenue or by protecting Louisiana’s

environment. Home Building & Loan Association uv.

Blaisdell, 290 U.S. 398 (1934). The nullification clause

does not deal with a broad economic or social problem,

does not cover an area already subject to state

regulation, does not have merely a temporary impact,

and is not aimed at a broad class of persons. Allied

Structure Steel Co. v. Spannaus, __—. U.S. ——, 57 L.

Ed. 2d 727 (1978).

E. The First Use Tax denies equal protection of the

laws, because it establishes a classification treating

taxpayers who are engaged solely in interstate OCS

natural gas activity differently from taxpayers who are

also engaged in in-state natural resource production.

12

ARGUMENT

I.

PLAINTIFF STATES HAVE STANDING TO CHALLENGE

THE LOUISIANA FIRST USE TAX.

A. Plaintiff States Have Standing In Their

Proprietary Capacities To Challenge The

Louisiana First Use Tax.

Plaintiff states are major consumers of natural gas

subject to the First Use Tax, including gas used for

space and water heating in public buildings, and as

such will be injured directly in their proprietary

capacities. Plaintiffs estimate that the imposition of the

First Use Tax will cost them at least 1.5 million dollars

annually.

If, in addition, the direct incremental cost of the tax

to the political subdivisions and educational institu-

tions of plaintiff states is considered as well, the

anticipated financial burden would be significantly

greater. Injury to these subdivisions and educational

institutions, as consumers, constitutes injury to the

states themselves for purposes of this Court’s original

jurisdiction. Arkansas v. Texas, 346 U.S. 368, 370 .

(1953).

It is well established that a state may bring an action

in its proprietary capacity, Maryland v. Wirtz, 392 U.S.

183 (1968); Oklahoma v. United States Civil Service

Commission, 330 U.S. 127 (1947), and that this Court

has jurisdiction over such an action when brought

against a sister state. North Dakota v. Minnesota, 263

U.S. 365, 373-74 (1923); Pennsylvania v. West Virginia,

262 U.S. 553, 592 (1923). In the present instance this

jurisdiction is exclusive, 62 Stat. 927, 28 U.S.C.

§ 1251(a)(1) (1976), and the plaintiff states have no

federal forum other than this Court in which to assert

their claim. Illinois v. City of Milwaukee, 406 U.S. 91, 93

(1972).

13

B. Plaintiff States Have Standing To Challenge The

Louisiana First Use Tax As Parens Patriae Of

Their Citizens Who Are Consumers Of Natural

Gas.

The total direct economic cost of the First Use Tax on

the citizens of plaintiff states will exceed 120 million

dollars, excluding the multiplier effect on the economy

generally, which should increase that burden signifi-

cantly.

States may sue as parens patriae in an original

action, Hawaii v. Standard Oil Co., 405 U.S. 251, 257-59

(1972), and this case presents an appropriate exercise of

that doctrine. See Pennsylvania v. West Virginia, 262

U.S. 553, 591-92 (1923); Georgia v. Pennsylvania

Railroad Co., 324 U.S. 439, 447-51 (1945).” A principal

° In a suit to enjoin the enforcement of a West Virginia

conservation statute threatening to cut off the supply of

natural gas flowing from West Virginia fields, Peansylvania

was found to have standing, not only as a proprietor of public

institutions which used the gas, but also “as the repre-

sentative of the consuming public whose supply will be

similarly affected.” 262 U.S. at 591. Where matters of health,

comfort and welfare are concerned, the state, “as the repre-

sentative of the public, has an interest apart from that of the

individuals affected.” Jd. at 592.

' This Court upheld the right of Georgia to bring an

original suit as parens patriae to enforce the civil remedies of

the antitrust laws, on an allegation that the economy of

Georgia and the welfare of her citizens had suffered serious

injury from a conspiracy of the defendant railroad compa-

nies. Addressing the issue of discriminatory rates, the Court

compared the damages alleged in Georgia to those alleged in

Pennsylvania v. West Virginia, supra, note 9, and other

traditional original jurisdiction cases:

If the allegations of the bill are taken as true, the

economy of Georgia and the welfare of her citizens have

seriously suffered as the result of this alleged conspiracy.

Discriminatory rates are but one form of trade barriers.

They may cause a blight no less serious than the spread

of noxious gas over the land or the deposit of sewage in

the streams. They may affect the prosperity and welfare

of a State as profoundly as any diversion of waters from

the rivers. They may stifle, impede, or cripple old

14

objective of plaintiffs in bringing this suit is to avoid

the direct and substantial harm that would be imposed

on their citizens and on commercial activities by

imposition of the discriminatory First Use Tax. The

situation here is directly analogous to that which

pertained in Georgia v. Pennsylvania Railroad: The

First Use Tax would cause serious injury to the health

and welfare of the citizens of plaintiff states and would

threaten the viability of their gas-consuming industries.

The tax would insidiously harm the economic prosper-

ity of entire regions of the country.

C. This Suit Is Not Barred By The Decision In

Arizona v. New Mexico.

This Court has original and exclusive jurisdiction

over disputes between two or more states, and “it has a

responsibility to exercise that jurisdiction when it is

properly invoked.” California v. Texas, ___. U.S. ___.,

57 L. Ed. 2d 464, 467 (1978) (per curiam) (Stewart J.,

concurring opinion).

In Arizona v. New Mexico, 425 U.S. 794 (1976), this

Court declined to accept an original action by Arizona

challenging the constitutionality of New Mexico’s

electrical energy tax imposed on utilities that retailed to

Arizona customers; this case, however, differs in several

important respects and should not be governed by that

decision.

industries and prevent the establishment of new ones.

They may arrest the development of a State or put it ata

decided disadvantage in competitive markets. Such a

charge at least equals in gravity the one which

Pennsylvania and Ohio had with West Virginia over the

curtailment of the flow of natural gas from the West

Virginia fields.

324 U.S. at 450-51. The Court went on to affirm Georgia’s

standing to sue. In this action plaintiff states are in a similar

position.

15

First, as Justice Stevens’ concurring opinion in

Arizona v. New Mexico pointed out, Arizona was “not

sufficiently affected” by the challenged tax “to justify

its invocation of the ‘original and exclusive jurisdiction’ -

of this Court,” because Arizona had not alleged that the

electrical energy tax had “some impact on the rates

paid by consumers of electricity in Arizona.” 425 U.S. at

798. Indeed, the refusal of the Arizona utilities to pay

the New Mexico tax protected Arizona and its citizens

from any injury pending resolution of the challenges to

the tax. That is not the situation here, however.

Because FERC has allowed the pipelines to pay the

First Use Tax to Louisiana (under protest) and to collect

and escrow the tax from their customers, the First Use

Tax will have an immediate impact on the rates paid by

consumers of natural gas who are citizens of the

plaintiff states, as well as on the rates paid by plaintiff

states for their own consumption. Thus plaintiff states

will begin to suffer injury on April 1, 1979, even while

judicial challenges to the tax are pending.

Second, none of the plaintiff states, and none of their

political subdivisions, are parties to any pending suit in

any other jurisdiction. In Arizona v. New Mexico, a

political subdivision of Arizona had joined a challenge

to the tax in a New Mexico state court. Two actions

concerned with the constitutionality of the First Use

Tax have been filed in Louisiana, but neither repre-

sents an appropriate vehicle either for participation by

plaintiffs or for ultimate review by this Court. The first

suit, a self-seeking action filed in Louisiana state court

by the State of Louisiana,!! seeks a declaratory

judgment that the First Use Tax is constitutional. Not

only is it inappropriate for plaintiff states to be required

to litigate their claim in the state court system of the

11 Edwin W. Edwards v. Transcontinental Gas Pipe Line

Corp., No. 216867 (19th Judicial District Court, La., filed

Sept. 22, 1978).

16

defendant state, but that action is a request for an

advisory opinion and does not present a case or

controversy that would be reviewable by this Court.!2

The second suit, brought by FERC in federal district

court,!3 has been stayed pending the outcome of the

state court litigation.'4 Moreover, intervention by

plaintiff states in that action would divest the district

court of jurisdiction.'5: Thus, plaintiff states — unlike

Arizona — have no adequate alternative forum.

Third, this Complaint raises issues of national

significance and federal law not raised by Arizona’s

challenge to the New Mexico electrical energy tax. For

12 An action by state officials to have a state statute

declared constitutional is not maintainable in the Louisiana

courts. Louisiana v. Bd. of Supervisors, 228 La. 951, 84 So. 2d

597 (1955). Furthermore, because Louisiana law prohibits

state courts from granting relief to defendant taxpayers, LA.

Rev. STAT. ANN. § 47:1575 (1975), the existing state case, even

if maintained, will result in a decree that is advisory in

nature and not reviewable by this Court. Muskrat v. United

States, 219 U.S. 346, 361-63 (1911). Whether or not a state

court is empowered to render advisory opinions, this Court

may not review a state court proceeding that does not pre-

sent an article III case or controversy, Doremus v. Board of

Education of Hawthorne, 342 U.S. 429, 434 (1952).

13 Fed. Energy Regulatory Comm’n v. McNamara, Civil

Action No. 78-384 (M.D. La., filed Sept. 29, 1978).

14 Td., Order of Judge West, Jan. 26, 1979, appeal docketed,

Fed. Energy Regulatory Comm’n v. McNamara, No. 79-1403

(5th Cir. 1979). Three of the plaintiff states filed an

application in that case for amicus curiae status and for

inclusion on the service list, but that application had not

been ruled on at the time the action was stayed.

15 See State Water Control Bd. v. Washington Suburban

Sanitary Comm’n, 61 F.R.D. 588 (D.D.C. 1974) (intervention

by Maryland would convert action to a suit between two

states and thereby destroy district court’s jurisdiction). Note

also that the tax-injunction statute, 62 Stat. 932, 28 U.S.C.

§ 1341 (1976), would bar the federal district court from

enjoining collection of the First Use Tax on behalf of the

plaintiff states, aithough it would not bar an injunction on

behalf of FERC.

17

example, the First Use Tax burdens federal OCS gas,

not merely the intrastate generation of electrical

energy. As such it conflicts with a broad federal

regulatory scheme set forth in the Natural Gas Act and

the Federal Energy Regulatory Commission’s imple-

menting regulations. Indeed, the historic compromise

between the Federal Government and the states, and

the entire legislative system for the control of the

“tidelands” — defining which areas are under a

seaboard state’s control and which areas, farther at sea,

are under federal control — would be set at naught by

the devices Louisiana seeks to employ. New Mexico’s

electrical energy tax did not conflict with any similar

federally preempted area of the law. In addition, as is

alleged in the Complaint, the First Use Tax would

impose a burden upon imported natural gas that would

seriously affect this nation’s foreign trade and foreign

relations and violate the import-export clause of the

Constitution.

Fourth, this case does not present a simple dispute

between two neighboring states; rather, it involves the

imposition by a single state of a burdensome tax upon

more than half the states in the nation. Plaintiffs in

this action are a diverse cross section of states, repre-

senting multiple regions of the country. Hundreds of

millions of dollars will change hands each year if the

First Use Tax is not enjoined. Plaintiffs and their

citizens should not be required to pay these vast sums

of money'® while this case wends its way through the

'6 Tt is well established that “the possibility of refund{s]

does not afford [consumers] sufficient protection [from illegal

rates.]” Fed. Power Comm’n v. Hunt, 376 U.S. 515, 524 (1964).

In addition to the irreparable damage to the economies of

plaintiff states that would be triggered by price rises to

natural gas consumers, “the trickling down process neces-

sary to be followed, the incidental cost cf which is often borne

by the consumer, and... . the transient nature of our society

. . often prevents refunds from reaching those to whom they

are due.” Fed. Power Comm’n v. Tennessee Gas Transmis-

18

Louisiana state court system,!? when the Constitution

provides the plaintiffs with an immediate, exclusive

access to a decision in this Court.

Finally, this action is in a very real sense a test case

critical to the nation’s economic health. If Louisiana is

allowed to impose its First Use Tax upon natural gas in

interstate commerce, legislatures in other seaboard

states will be encouraged to race to impose countervail-

ing measures on imported natural gas, oil, and other

products, and landbound states will seek to tax

comparable products while in transit within their

borders. At a time when our domestic economic health

cries out for inflationary restraint, and the energy crisis

cries out for a consistent, rational, federal energy

policy, this Court should stand as a guardian against

balkanization of the states, destructive internecine

warfare, and an unfortunate descent inte the very

interstate feudalism the Constitution was designed to

prevent.

IT.

THE LOUISIANA FIRST USE TAX RAISES IMPORTANT AND

SUBSTANTIAL FEDERAL QUESTIONS AND IS

IN CONFLICT WITH APPLICABLE

DECISIONS OF THIS COURT.

This case raises substantial federal questions. Plain-

tiffs argue that the Louisiana First Use Tax, with an

sion Co., 371 U.S. 145, 154-55 (1962) (footnote omitted).

Moreover, the six percent interest provided in the escrow

provisions of La. Rev. Stat. ANN. § 47:1576A (West Supp.

1978) will not adequately compensate the interstate pipelines

for the use of their money, a cost that may ultimately be

borne by consumers in the event it is found by FERC to be

just and reasonable under the Natural Gas Act.

17 Moreover, this action is not likely to raise many, if any,

disputed factual issues, making this Court’s original jurisdic-

tion particularly appropriate. Nor is there any possibility

that a narrowing statutory interpretation of the First Use

Tax by a state court would preserve the First Use Tax from

constitutional attack, a possibility that might otherwise

support abstention by this Court.

19

annual impact on natural gas consumers in the

hundreds of millions of dollars, offends multiple

provisions of the United States Constitution.

A. The Louisiana First Use Tax Constitutes An

Unconstitutional And Discriminatory Burden

Upon Interstate Commerce.

The grant of power to the Congress contained in the

commerce clause also constitutes a withdrawal of power

from the states, Boston Stock Exchange v. State Tax

Commission, 429 U.S. 318, 328 (1977), and the constitu-

tionality of a state tax on interstate commerce depends

upon its “practical effect.” Department of Revenue of

Washington v. Association of Washington Stevedoring

Companies, 435 U.S. 734, 750 (1978). Taxes will be

sustained “that are applied to activity with substantial

nexus with the State, that are fairly apportioned, that

do not discriminate against interstate commerce, and

that are fairly related to the services provided by the

State.” Id. The Louisiana First Use Tax — which is

designed to be, and unquestionably is, a tax upon

interstate commerce — fails all four tests.

1. The Louisiana First Use Tax Is A Tax On

Interstate Commerce.

In measuring the validity of a state tax against the

commerce clause, the threshold question to be an-

swered is, Does the tax reach interstate commerce? The

First Use Tax clearly does. The flow of natural gas in

pipelines to points outside the state constitutes inter-

state commerce. United Fuel Gas Co. v. Hallanan, 257

U.S. 277 (1921). Indeed, the transmission of natural gas

by high pressure pipelines is a national, not local,

activity, and constitutes interstate commerce whether

within or without the state. East Ohio Gas Co. v. Tax

Commission of Ohio, 283 U.S. 465, 470 (1931). Only

when natural gas passes into low pressure distribution

20

lines is the “original package” broken and the gas

becomes a part of local rather than interstate com-

merce. Id. at 470-71.

A state may not directly tax the flow of natural gas in

interstate commerce. In Michigan-Wisconsin Pipe Line

Co. v. Calvert, 347 U.S. 157 (1954), the Court held that a

state tax on gathering could not survive the commerce

clause test:

[A]s a basis for finding a separate local activity,

the incidence must be a more substantial economic

factor than the movement of the gas from a local

outlet of one owner into the connecting interstate

pipeline of another.

347 U.S. at 169.

More than three billion Mcf of natural gas from the

OCS enters Louisiana annually and is resold in

interstate commerce. The movement of this gas through

Louisiana is continuous and unbroken to the Louisiana

border. The gas remains at high pressure while inside

Louisiana.

The “uses” taxed by the First Use Tax are not

“separate local activities” that may permissibly be

taxed. The sale of the gas, or transfer of possession,

control, or title, does not take the gas out of interstate

commerce. East Ohio Gas Co. v. Tax Commission of

Ohio, 283 U.S. 465 (1931). Accord, Illinois Natural Gas

Co. v. Central Illinois Public Service Co., 314 U.S. 498,

503-04 (1942). Nor may the tax be levied upon the

transportation of the gas, or upon “other ascertainable

action.” Since the gas has not passed into the

distribution system for delivery to consumers, it may

not be taxed by the state.

21

2. The Louisiana First Use Tax Is Applied On

Certain Activities That Do Not Have A Sufficient

Nexus With Louisiana.

Many of the uses included in section 47:1302(8) are

not activities with a sufficient nexus to the State of

Louisiana to justify imposition of that state’s taxing

authority. A sufficient nexus is not established by

transportation to the inlet of a processing plant,'* or to

the inlet of any measurement or storage facility,!® or by

transfer of possession or relinquishment of control at a

delivery point in Louisiana.” And the basket category,

“other ascertainable action at a point within [Louisia-

naj,” is too vague to satisfy the constitutional nexus

test.

3. The Louisiana First Use Tax Is Not Fairly

Apportioned.

Contrary to the requirement of Department of

Revenue of Washington, the First Use Tax is not fairly

apportioned. It is not related to the taxpayer’s invest-

ment in facilities, actual business activities, gross

receipts, payroll, or other indicia of a concrete nexus

with Louisiana.”! The tax is a tax on the gas, not on

local activities.

The First Use Tax is also unconstitutional because it

exposes gas from the federally-controlled OCS and

imported natural gas to the burden of multiple taxation.

Northwestern States Portland Cement Co. v. Minne-

sota, 358 U.S. 450, 458 (1959). If Louisiana is permitted

\* Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S.

157 (1954).

19 State Tax Comm’n of Mississippi v. Interstate Natural

Gas Co., 284 U.S. 41 (1931).

2 Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S.

157 (1954).

21 Cf. Memphis Natural Gas Co. v. Stone, 335 U.S. 80, 88

(1948) (tax properly apportioned to investment in state).

a

22

to impose this tax, every subsequent state will be

invited to tax the volume of gas passing through its

territory. In Michigan-Wisconsin Pipe Line Co. uv.

Calvert, 347 U.S. 157, 170 (1954), this Court held a tax

on “gathering gas” unconstitutional for just this

reason. There the taxable incidence was the taking of

natural gas from the outlet of a processing plant, an

activity similar in nature to several of the “uses” that

trigger imposition of the First Use Tax. And many or

all of the “uses” taxed by Louisiana recur in other

states through which the same gas would pass.??

4. The Louisiana First Use Tax Discriminates

Against Interstate Commerce.

The third test is that a state tax not discriminate,

“either by providing a direct commercial advantage to

local business, ... or by subjecting interstate com-

merce. to the burden of ‘multiple taxation,’.. .”

Northwestern States Portland Cement Co. v. Minne-

sota, 358 U.S. 450, 458 (1959). The First Use Tax does

both. It exposes natural gas flowing in interstate

commerce to the threat of multiple taxation, and it

unfairly discriminates against interstate commerce in

three respects.

First, the tax is discriminatorily imposed only on gas

imported into Louisiana (whether from a sister state or

from outside the United States) and on gas produced

from the OCS. Such gas is moving in interstate or

foreign commerce at the time it is transported into

Louisiana, and continues in interstate commerce,

without interruption, until it is transported out of, or is

sold at wholesale for ultimate consumption within,

Louisiana. An equivalent tax is not imposed on gas

produced in Louisiana or on gas transported into

22 For example, there are measurement and storage

facilities in most states, and gas there is frequently

processed, exchanged, or subjected to analogous “uses.”

- 23

Louisiana from a state that imposes a severance tax.

Yet the post-production flow of such gas enjoys the

same protections and privileges, and subjects Louisia-

na’s environment to the same purported damages, as

OCS and imported gas. In practical effect, what

purports to be a tax on the “use” of natural gas within

Louisiana is in fact a tax on the privilege of transmit-

ting OCS and imported natural gas into and through

Louisiana in interstate commerce.?*

Second, the Louisiana Severance Tax Credit?‘ permits

taxpayers liable for the First Use Tax to credit that

liability, dollar-for-dollar, against their liability for

Louisiana’s severance tax, which is set at the same rate

of seven cents per Mcf,2° up to the amount of that

liability. The First Use Tax, applied in conjunction with

the Severance Tax Credit, discriminates against (and is

23 Although natural gas produced in Louisiana is subject to

a Louisiana severance tax at a comparable rate, the First Use

Tax is not .an added burden on interstate commerce that

“compensates for a like burden on in-state sales, [or]

neutralizes an economic advantage previously enjoyed by

[interstate commerce].” Boston Stock Exch. v. State Tax

Comm’n, 429 U.S. 318, 332 (1977). The severance tax is

intended to compensate the state for the depletion of its

natural resources, to which OCS and imported natural gas do

not contribute. Thus the severance tax is not a “like burden.”

Moreover, Louisiana exempts from the First Use Tax natural

gas subject to another state’s severance tax, which gas will

not be subject to any Louisiana tax.

In addition, the burden of the First Use Tax and the

severance tax will not fall on similarly situated taxpayers.

Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64, 70

(1963). Louisiana law allows contract provisions that impose

the severance tax upon the producer. LA. Rev. Stat. ANN.

§ 47:633.1. Thus the buyer of Louisiana-produced gas may

contractually impose the severance tax burden upon the

producer, whereas the buyer of OCS gas is affirmatively

prevented from obtaining reimbursement from the producer.

24 First Use Tax on Natural Gas — Severance Tax Credit,

Act No. 436, 1978 La. Sess. Law Serv. 842 (West) (to be codified

as LA. Rev. Stat. ANN. § 47:647).

25 La. Rev. Stat. ANN. § 47:633(9) (West Supp. 1978).

|

>>

24

designed to discriminate against) interstate commerce

because it favors pipeline companies that produce

natural resources subject to the Louisiana severance

tax and burdens those that do not.

Third, the First Use Tax discriminates against

interstate commerce because it exempts from liability

for the tax volumes of natural gas, otherwise subject to

the tax, consumed in specified uses in Louisiana.

Volumes of natural gas subject to the tax consumed in

similar uses in other states are not given an equivalent

exemption. Louisiana has, therefore, favored certain in-

state uses, such as production within Louisiana of

sulphur, fertilizer, and anhydrous ammonia, to the

disadvantage of similar out-of-state uses.

5. The Louisiana First Use Tax Is Not Fairly Related

To Services Provided By Louisiana.

The First Use Tax fails the final test set forth in

Department of Revenue of Washington because it is not

fairly related to the services provided by the taxing

state.

The size of the First Use Tax, which if sustained by

this Court will return more than $225,000,000 annually

to the State of Louisiana, is utterly disproportionate to

the minimal burdens which the taxed activity places

upon Louisiana or to the minimal privileges and

protections afforded by Louisiana. This can be seen in

several ways.

First, the First Use Tax and the severance tax have

been set at equivalent rates, yet it is apparent that the

latter is intended to compensate the state for the loss of

its natural resource as the name, “severance,” implies,

a loss not present in the case of the “use” of gas

produced outside Louisiana.

Second, less than one quarter of the funds collected

by the tax will go to a “Barrier Islands Conservation

25

Account’’6 for financing capital improvement projects

designed to conserve, preserve and maintain barrier

islands, reefs and shores of the Louisiana coastline.

Third, and notwithstanding the disproportionate size

of the First Use Tax levy, the State of Louisiana

already receives substantial compensation for any

alleged damage to its coastal areas. For example,

Louisiana imposes other taxes upon interstate pipe-

lines, such as ad valorem property taxes on interstate

facilities, franchise taxes imposed as a condition of

doing business in Louisiana, properly-apportioned

income taxes, and sales and use taxes. These taxes

fairly and properly raise money to support the services

and protections provided by Louisiana.

More directly, the Federal Government, through the

Coastal Zone Management Act,?’ has already provided

for an assortment of grant programs, including a

Coastal Energy Impact Fund, to compensate states

harmed by OCS development activity. The expressed

rationale of the First Use Tax is untenable where the

Federal Government already provides for compensation

made necessary by the transmission of OCS gas

through Louisiana.?*

26 First Use Tax Trust Fund, Act No. 293, 1978 La. Sess. Law

Serv. 480 (West) (to be codified as La. Rev. STAT. ANN.

§ 47:1351), which is reproduced in the Appendix to this brief.

27 See 86 Stat. 1280-89, 16 U.S.C. § 1451-1464 (1976), and

especially 16 U.S.C. § 1456a, as amended by Outer Continental

Shelf Lands Act Amendments of 1978, Pub. L. No. 95-372, 92

Stat. 629 (1978). For example, 16 U.S.C. § 1464(a)(3) authorizes

$130,000,000 annually for grants under just part of this

program.

28 Moreover, Louisiana has enacted its own Coastal Zone

Management Act, Act No. 361, 1978 La. Sess. Law Serv. 704

(West) (to be codified as La. Rev. Stat. ANN. § 49:213.1-.21),

under which pipeline companies must obtain coastal use

permits.

7°

26

Finally, if the First Use Tax is intended to be fairly

related to the “services” provided by Louisiana through

damage to its waterbottoms, barrier reefs, and sensitive

shorelines, then the tax is seriously under-inclusive in a

discriminatory and impermissible manner. An equiva-

lent tax is not imposed on natural gas produced in

Louisiana or on gas which passes through Louisiana

but is produced in any other state that imposes a

severance or production tax. Substantial volumes of

natural gas produced in Louisiana and other states are

transported into and through Louisiana in the same

facilities used to transport OCS and imported gas, and

these volumes of gas traverse Louisiana’s waterbot-

toms, barrier reefs, and shorelines, creating similar

risks and doing equivalent “damage.” Yet these

volumes are not subject to the First Use Tax.

B. The Louisiana First Use Tax Violates The

Supremacy Clause.

Where federal legislation has preempted a field of

enterprise, state law, whether or not in direct conflict

with federal regulation, is void as a violation of the

supremacy clause.2? And a state law that directly

conflicts with applicable federal statutes and regula-

tions violates the supremacy clause whether or not the

field has been fully preempted.

The Natural Gas Act, the Natural Gas Policy Act of

1978,*! and the Outer Continental Shelf Lands Act,*?

constitute a comprehensive scheme duly adopted by the

Congress for the regulation, enforcement and promo-

tion of the production of natural gas and the sale,

29 Where, as here, the affected area involves interstate

commerce, state legislation in the area preempted by federal

regulation also violates the commerce clause.

% 52 Stat. 821-33, 15 1'.S.C. §§ 717-717w (1976).

31 92 Stat. 3350, Pub. L. No. 95-621 (1978).

382 67 Stat. 462-70, 43 U.S.C. §§ 1331-1343 (1976).

27

transportation and pricing of interstate gas. Prior

decisions of this Court make it clear that this federal

legislation has preempted state regulation of all gas in

interstate commerce, whether occurring before, during,

or after transmission by an interstate pipeline. This

legislation, in fact, was intended to plug the gap

resulting from earlier judicial decisions prohibiting

state regulation of the interstate natural gas business.**

Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 682-

83 (1954). Accord, Northern Natural Gas Co. v. State

Corporation Commission, 372 U.S. 84 (1963).

Moreover, the First Use Tax has been preempted by

federal regulation as well as by statute. The attempt of

the tax is to reach, and coincidentally to regulate, gas

that is dedicated to interstate markets by contracts

and/or FERC certificates of public convenience and

necessity issued pursuant to the Natural Gas Act.

More specifically, the First Use Tax violates the

supremacy clause in two respects. First, it declares

contractual provisions requiring reimbursement by

producers of costs incurred by pipelines (including

taxes) “to be against public policy and unenforceable to

that extent.” § 47:1303C. Section 7(c) of the Natural Gas

Act,*4 however, provides that no person may sell or

transport natural gas in interstate commerce for resale

without first obtaining a certificate of public conven-

ience from the Commission. These certificates generally

are made in full recognition of, and incorporate the

terms and conditions of, the underlying contract for the

sale of natural gas. Numerous contracts contain

provisions requiring the producer or gatherer selling

natural gas to an interstate pipeline to reimburse the

pipeline for all costs (including any taxes) incurred as a

result of extracting natural gas, liquids or other

33 See, e.g., Missouri ex rel. Barrett v. Kansas Natural Gas

Co., 265 U.S. 298 (1924).

34 56 Stat. 83, 15 U.S.C. § 717£(c) (1976).

28

' treatment of the gas. The First Use Tax, by purporting

to abrogate such provisions, conflicts with the federal

regulatory scheme and violates the supremacy clause.

Second, Section 4 of the Outer Continental Shelf Lands

Act*® provides that “{S]tate taxation laws shall not apply

to the outer Continental Shelf.” Notwithstanding the

label given to it in the statute, the First Use Tax is in

economic effect a tax on gas produced from the OCS. No

amount of drafting semantics should permit Louisiana to

thwart the explicit federal policy of developing OCS

resources without state interference. Numerous federal

statutes, and numerous decisions of this Court, have

drawn a clear line vf demarcation between the Federal

Outer Continental Shelf and the state waters closer to

shore. Louisiana should not be permitted to eradicate that

historic line of demarcation.

C. The Louisiana First Use Tax Is An Uncon-

stitutional Impost Or Duty On Imports.

Article I, section 10, clause 2 of the Constitution states:

No State shall, without the Consent of the Congress,

lay any Imposts or Duties on Imports or Exports,

except what may be absolutely necessary for

executing its inspection Laws...

The purpose of the import-export clause are three:

[T]he Federal Government must speak with one

voice when regulating commercial relations with

foreign governments, and tariffs, which might affect

foreign relations, [cannot] be implemented by the

States consistently with that exclusive power;

import revenues [are] to be the major source of

revenue of the Federal Government and should not

be diverted to the States; and harmony among the

States [may] be disturbed unless seaboard States,

with their crucial ports of entry, [are] prohibited from

levying taxes on citizens of other States by taxing

35 67 Stat. 462, 43 U.S.C. § 1333(a)(2) (1976).

29

goods merely flowing through their ports to the other

States not situated as favorably geographically.

Michelin Tire Corp. v. Wages, 423 U.S. 276, 285-86 (1976) -

(footnotes omitted).

The Louisiana First Use Tax, which unquestionably

reaches imports,®* offends two of the three above-cited

policy considerations. First, the First Use Tax prevents

the Federal Government from dealing uniformly with

foreign trade. Second, the First Use Tax disturbs the

harmony among the states by exploiting Louisiana’s

favorable seaboard location. Each “offense” is sufficient

to render the tax unconstitutional.*”

1. The Louisiana First Use Tax Reaches Imports.

By its terms the First Use Tax applies to imported

natural gas “which is not subject to the levy of any import

tax or tariff by the United States as an import from a

foreign country.” § 47:1303A. The United States does not

36 Of course, the constitutional prohibitions against state

taxation will not apply after imported goods lose their status as

imports. Michelin, supra at 286-87.

37 In addition, the First Use Tax fits within the category the

status of which was explicitly reserved in Dep’t of Revenue of

Washington v. Ass’n of Washington Stevedoring Companies,

435 U.S. 734 (1978). There this Court decided that an otherwise

_unobjectionable tax is not made objectionable because it

applies to goods in transit, so long as the tax does not fall on the

goods themselves, but reserved “the question of the applicabili-

ty of the Michelin approach when a State directly taxes imports

or exports in transit.” 435 U.S. at 757 n.23.

The First Use Tax is such a tax. It applies to natural gas in

transit — indeed, two of the definitions of “use” refer explicitly

to transportation. And it is a direct tax on volume — it is

measured simply by the volume of gas subject to the taxed uses.

Therefore, even if this Court were to sustain the First Use Tax

under the Michelin criteria, a traditional analysis should void

the tax as an unconstitutional direct tax upon imports in

transit.

30

now impose “any import tax or tariff’ on natural gas

imported into the United States.**

Moreover, the First Use Tax is imposed upon, inter alia,

the sale, transportation, transfer of possession or control,

“or other ascertainable action at a point within the state.”

§ 47:1302(8). In this way the First Use Tax “intercepts the

import, as an import, in its way to become incorporated

with the general mass of property, and denies it the

privilege of becoming so incorporated until it shall have

contributed to the revenue of the state.” Brown uv.

Maryland, 25 U.S. (12 Wheat.) 419, 443 (1827). Only when

natural gas passes into the local distribution system, is

no longer at high pressure, and is divided into the many

small streams that connect to consumption outlets, is the

“original package” broken, East Ohio Gas Co. v. Tax

Commission of Ohio, 283 U.S. 465, 470-71 (1931), and the

gas sufficiently “incorporated with the general mass of

property” to lose its status as an import. Brown, 25 U.S.

(12 Wheat.) at 443.

2. The Louisiana First Use Tax Would Complicate The

Federal Government’s Foreign Trade Policy.

The first prong of the Michelin test is whether the First

Use Tax offends the requirement that this country havea

consistent foreign trade policy: “The Federal Govern-

ment must speak with one voice when regulating

commercial relations with foreign governments.” 423

U.S. at 285. The First Use Tax fails this test.

In contrast to the ad valorem tax assessed in a non-

discriminatory manner against inventory, which was

upheld in Michelin, the First Use Tax does “create special

. . . preferences for certain domestic goods” — namely,

for natural gas produced in Louisiana — and its

application will discourage importation of a product

38 Natural gas is imported into the United States free of any

customs duties, 76 Stat. 72, 19 U.S.C. § 1202, Schedule 4, Part 10,

Item 475.15 (1976).

31

governed by federal regulation in a manner inconsistent

with that regulation. Michelin, 423 U.S. at 286. If the

Louisiana First Use Tax is applied to imported natural.

gas, seaboard states, and states bordering on Canada

and Mexico — for other states will be free to follow — will

be “allowed to exercise their own initiative in the

regulation of foreign affairs.”” Youngstown Sheet & Tube

Co. v. Bowers, 358 U.S. 534, 556 (1959).89

3. The Louisiana First Use Tax Would Dieta The

Harmony Among The States.

The third prong of the Michelin testis whether the First

Use Tax offends the need for interstate harmony:

[Hjarmony among the States [may] be disturbed

unless seaboard States, with their crucial ports of

entry, [are] prohibited from levying taxes on citizens

of other States by taxing goods merely flowing

through their ports to the other States not situated as

favorably geographically.

423 U.S. at 285-286. By imposing the First Use Tax,

Louisiana, a seaboard state, has attempted to do just

that. As this Court noted in Department of Revenue of

Washington v. Association of Washington Stevedoring

Companies, 435 U.S. 734, 754 (1978), “the desire to

prevent interstate rivalry and friction does not vary

significantly from the primary purpose of the Com-

merce Clause.” Thus the tests are similar; a tax passes

constitutional muster under the import-export clause “if

the tax falls upon a taxpayer with reasonable nexus to

the State, is properly apportioned, does not discrimi-

nate, and relates reasonably to services provided by the

39 For example, in addition to current imports of substantial

quantities of natural gas from Canada, the possible importa-

tion of natural gas from Mexico is now the subject of delicate

negotiations at the federal level. See, e.g., N.Y. Times, Mar. 19,

1979, § D, at 5, col. 5. The First Use Tax may pose a serious

threat to those very real negotiations.

32

State.”’ As has been shown in the preceding section, the

First Use Tax does not satisfy any of these tests.

D. The Louisiana First Use Tax Unconstitutionally

Impairs The Obligation Of Contracts.

Article I, section 10, clause 1, of the United States

Constitution states: “No State shall. ..pass any...

Law impairing the Obligation of Contracts... .”

Traditionally, in determining consistency with the

contracts clause, the analysis has focused on ‘“‘whether

the legislation is addressed to a legitimate end and the

measures taken are reasonable and appropriate to that

end.” Home Building & Loan Association v. Blaisdell,

290 U.S. 398, 438 (1934).

Allied Structure Steel Co. v. Spannaus, ___. U.S. ___.,

57 L. Ed. 2d 727 (1978), decided last term, set forth four

considerations that allow a state law to survive a

contracts clause challenge. First, the law should “deal

with a broad, generalized economic or social problem.”

Second, it should “operate in an area already subject to

state regulation at the time the company’s contractual

obligations were originally undertaken.” Third, it

should “effect simply a temporary alteration of the

contractual relationships of those within its coverage.”

Finally, it should be aimed broadly and not at a narrow

class of persons. 57 L. Ed. 2d at 740.

The First Use Tax declares unenforceable contractual

provisions that otherwise would apply to provide

reimbursement by producers to pipelines for taxes

imposed by operation of state law. §47:1303C. The

effect of this nullification will be to increase the cost of

natural gas to plaintiff states and their citizens above

the level permissible by contract. Whether it is analyzed

under traditional legal principles or under the more

recent Spannaus criteria, the nullification clause

cannot be sustained.

ey

33

Under the traditional test, it is clear that the

nullification clause does not address a “legitimate end.”

There is simply no social or economic reason for a-

provision that impairs reimbursement provisions in

existing contracts. It does not increase the revenue

raised by the tax; a reirabursement provision would

redistribute the tax burden but leave revenues to the

state unaffected. If the tax is truly intended to protect

Louisiana’s environment and compensate its citizens

for damage done to waterbottoms, barrier reefs, and

shorelines, that purpose will be served just as well by

monies collected from producers as by monies from

pipelines. Of course, local political realities may have

dictated the need for a nullification provision insulating

the producers from the effects of the tax,’ but that is

not such a “legitimate end” as to justify the impairment

of contracts.

Applying the Spannaus criteria, the nullification

clause similarly fails to pass constitutional muster.

First, it does not “deal with a broad, generalized eco-

nomic or social problem” — in fact, the nullification clause

does not purport to deal with any generalized problem

at all, other than the existence of reimbursement

provisions. Second, the reimbursement of costs and

taxes is clearly not “an area already subject to state

regulation at the time the company’s contractual

obligations were originally undertaken,” because the

area of rate and cost regulation has been preempted by

the federal government. (See Section B, supra.) Third,

40 Because federal regulation imposes statutory ceilings

upon the price of natural gas, the large oil producers that

produce natural gas in the OCS may not be able to pass along

fully the increased costs that would be occasioned by imposi-

tion of the First Use Tax upon producers (by virtue of

reimbursement clauses in their contracts with pipeline com-

panies). Moreover, there is no certainty that a proceeding under

the Natural Gas Act would result in a fully-passed-on cost. This

is yet another illustration of how the First Use Tax interferes

with the federal regulatory system, and why the tax must be

declared to be unconstitutional.

>

34

the nullification clause does not temporarily alter

contractual relationships, but works a “severe, perman-

ent, and immediate change in those relationships —

irrevocably and retroactively.” Finally, the nullification

clause is aimed only at a narrow class of persons, the

pipeline companies. Spannaus, 57 L. Ed. at 740.

E. The Louisiana ‘First Use Tax Denies Equal

Protection Of The Laws.

An otherwise valid tax will be struck down if it

deprives taxpayers of equal protection of the laws

guaranteed under the fourteenth amendment to the

United States Constitution. Wheeling Steei Corp. v.

Glander, 337 U.S. 562 (1949). The First Use Tax does

precisely that.

By its Severance Tax Credit, Louisiana permits any

taxpayer liable for the payment of the First Use Tax to

credit such payments against any severance taxes owed

by the taxpayer to Louisiana. § 47:647A. The Severance

Tax Credit further provides that the credit against

severance taxes is not allowed if the taxpayer “has an

enforceable right to reimbursement from a third party.”

§ 47:647B. The First Use Tax only applies to those

taxpayers who have no liability under Louisiana’s

severance tax law.

The First Use Tax as intertwined with the Severance

Tax Credit thus establishes a classification treating

differently taxpayers who are solely engaged in

interstate OCS natural gas activity from taxpayers who

are also engaged in in-state production of natural

resources. This classification is unreasonable and

irrelevant to the purported purposes of the First Use

Tax and results in a denial of equal protection of the

law, in contravention of fourteenth amendment. This

Court should not uphold a state tax having an unequal

impact on interstate commerce where there is no

35

political check against unduly burdensome state action.

Raymond Motor Transportation, Inc. v. Rice, 434 U.S.

429, 444 n.18 (1978).

CONCLUSION

As has been demonstrated above, plaintiffs have

raised serious issues relating to whether the Louisiana

First Use Tax is an unconstitutional discrimination

against and burden upon interstate commerce, a

violation of the supremacy clause, an unconstitutional

impost or duty on imports, an unconstitutional impair-

ment of contracts, and a denial of equal protection. For

these reasons, and because this case presents substan-

tial federal questions the prompt resolution of which are

critical to the national development of domestic energy

and economic policy, it is respectfully submitted that

leave should be granted to file the proposed Complaint

invoking the original jurisdiction of this Court.

Respectfully submitted,

STATE OF MARYLAND STATE OF ILLINOIS

StepHEN H. SAcHs WituiaM J. Scotr

Attorney General Attorney General

Davin H. FELDMAN 500 South Second

Assistant Attorney General Springfield, Illinois 62706

Chief of Litigation :

1400 One South Calvert Building ag ater Atco ney

Baltimore, Maryland 21202 — locates Gamarel

Joun K. KEANE, JR.

People’s Counsel of Maryland THOMAS J. SWABOWSKI

State Office Building Assistant Attorney General

301 West Preston Street, #900 160 North La Salle Street

Baltimore, Maryland 21201 Chicago, Illinois 60601

36

STATE OF RHODE ISLAND AND

PROVIDENCE PLANTATIONS

STATE OF INDIANA

THEODORE L. SENDAK

Attorney General

DoNALD P. BOGARD

Chief Counsel

Rosert B. WENTE

Deputy Attorney General

219 State House

Indianapolis, Indiana 46204

COMMONWEALTH OF

MASSACHUSETTS

FRANCIS X. BEeLLoTT!

Attorney General

MICHAEL B. MEYER

GARRICK COLE

ALAN D. MANDL

Assistant Attorneys General

One Ashburton Place

Boston, Massachusetts 02108

STATE OF MICHIGAN

FRANK J. KELLEY

Attorney General

Ropert A. DERENGOSKI

Solicitor General

525 West Ottawa Street

Lansing, Michigan 48913

ARTHUR E. D’Honpt

Don L. KESKEY

Assistant Attorneys General

DENNIS J. RoBerts II

Attorney General

Providence County Courthouse

Providence, Rhode Island 02903

WILLIAM GRANFIELD Bropy

Assistant Attorney General

250 Benefit Street

Providence, Rhode Island 02903

STATE OF WISCONSIN

BRONSON C. LA FOLLETTE

Attorney General

CHARLES A. BLECK

Assistant Attorney General

114E State Capitol

Madison, Wisconsin 53702

STEVEN M. ScuHurR,

Chief Counsel

Wisconsin Public Service

Commission

4802 Sheboygan Avenue

Madison, Wisconsin 53702

1000 Long Boulevard

Suite 11

‘Lansing, Michigan 48910

STATE OF NEW YORK

RoBERT ABRAMS

Attorney General

#2 World Trade Center

New York, New York 10047

EDWARD BERLIN

FRED W. GELDON

Leva, HAwWEs, SYMINGTON,

MartTIN & OPPENHEIMER

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 298-8020

Special Counsel to Plaintiffs

la

APPENDIX

First Use Tax Trust FuND

ACT NO. 293

HOUSE BILL NO. 767

An Act to amend Subtitle II of Title 47 of the Louisiana

Revised Statutes of 1950 by adding thereto a new

Chapter to be designated Chapter 16 thereof to

contain a Part II containing Section 1351, to create

and provide for the First Use Tax Trust Fund in the

state treasury as a special and irrevocable trust fund

for the proceeds to be derived from a first use tax and

any new or alternate tax on the same resources; to

establish certain accounts within said trust fund to be

used for state debt retirement, redemption of outstand-

ing debt, capital improvements of the barrier islands,

reefs, and shores of the coastline; and to provide for

reimbursement to the general fund for certain tax

credits.

Be it enacted by the Legislature of Louisiana:

Section 1. Part II of Chapter 16 of Subtitle II of Title 47

of the Louisiana Revised Statutes of 1950 containing

Section 1351 is hereby enacted to read as follows:

Part II. Use PROCEEDS

SUBPART A. FIRST USE TAX TRUST FUND

§ 1351. Creation

A. (1) The First Use Tax Trust Fund is hereby created in

the state treasury as a special and irrevocable trust fund

for the deposit of the proceeds, and investment income

derived therefrom, of the first use tax imposed by law in

1978 or thereafter and any new or alternative tax

hereafter imposed by law on uses of those resources

subject to any such tax. Out of the first proceeds of the

first use tax the treasurer shall pay into the State General

Fund such amounts as are determined by the secretary of

the Department of Revenue and Taxation to be necessary

to fully reimburse the State General Fund for monies lost

to that fund by reason of the tax credits granted by law

2a

which are related to the imposition of the first use tax. The

remainder of such tax proceeds shall be credited to the

following accounts, which are hereby created within the

First Use Tax Trust Fund, and shall not be deposited in

the Bond Security and Redemption Fund or the State

General Fund.

(2) Distribution; debt accounts. Seventy-five percent of

the proceeds, and all investment earnings derived

therefrom, shall be deposited in the Initial Proceeds

Account and the Debt Retirement and Redemption

Account, which are hereby created, in the following

manner:

(a) Initial Proceeds Account. From this portion of the

proceeds of the tax, amounts shall be credited to the

Initial Proceeds Account until the sum of five hundred

million dollars has been so credited. The sum of five

hundred million dollars credited to this account from the

proceeds of the tax shall be maintained in that amount at

ali times and, except for investment and except as

provided in Paragraph C of this Section, monies in the

Initial Proceeds Account shall not be used for any

purpose. Monies in this account shall be invested, in

accordance with law, and the investment earnings shall

accrue to that account.

(b) Debt Retirement and Redemption Account. All

proceeds of this portion of the tax over and above the

amount required to be credited to and be maintained in

the Initial Proceeds Account shall be credited to the Debt

Retirement and Redemption Account. Monies in this

account shall be invested, and the investment earnings

shall accrue to that account. Except for investment,

monies in the Debt Retirement and Redemption Account

shall be used solely to purchase, in advance of maturity,

on the open market any outstanding obligations of the

state, or to call, pay, or redeem in advance of maturity any

outstanding bonds, notes, or other evidences of state debt,

or both. No purchase or redemption of state debt shall be

made unless the purchase or redemption results in

interest savings to the state. The methods by which this

3a

Section shall be implemented shall be determined by the

state treasurer, with concurrence of two-thirds of the

members of the State Bond Commission, acting in open

session.

(3) Distribution conservation account. Twenty-five

percent of the proceeds, and all investment earnings

derived therefrom, shall be deposited in the Barrier

Islands Conversation Account. The monies in the Barrier

Islands Conservation Account shall be invested and the

investment earnings shall accrue to that account. Except

for such investment, monies in this account shall be used

exclusively to fund capital improvement projects de-

signed to conserve, preserve, and maintain the barrier

islands, reefs, and shores of the coastline of Louisiana.

Only such capital improvements as are contained in the

comprehensive capital budget adopted by the legislature

each year shall be so funded.

B. The state treasurer shall invest all monies in the

accounts created by Subsection A hereof in accordance

with the laws governing the investment of idle funds of

the state.

C. If the state treasurer determines that the best

interest of the state would be served, but only if the Debt

Retirement and Redemption Account is not funded or for

any reason is depleted, the treasurer, with concurrence of

two-thirds of the members of the State Bond Commission,

acting in open session, may expend such portion of the

investment earnings in the Initial Proceeds Account as

are not necessary to provide the balance of five hundred

million dollars in the Initial Proceeds Account required

by Subsection A hereof for any purpose tor which the

Debt Retirement and Redemption Account may be used.

D. The funds deposited in the First Use Tax Trust Fund

shall be considered escrowed and shall not be used for any

of the purposes enumerated herein until the proceeds of

the first use tax are determined to be available for such

uses by the treasurer, with concurrence of two-thirds of

the members of the State Bond Commission acting in

open session. If by final action of a court of last resort the

4a

tax held in escrow in the state treasury is held to be

invalid as to any taxpayer who paid the tax, the taxes

paid, with interest accrued thereon, shall be repaid to the

taxpayer.

E. The secretaries of the Department of Wildlife and

Fisheries, the Department of Natural Resources, and the

Department of Transportation and Development shall

meet and annually make recommendations to the

governor as to capital improvement projects designed to

conserve, preserve, restore, and maintain the barrier

islands, reefs, and shores of the coastline of the state. The

governor shall place such of those projects as he deems to

be in the best interest of the state in the comprehensive

capital budget for cunsideration by the legislature. Only

those projects approved by the legislature shall be

funded. be

Section 2. If any provision or item of this Act or the

application thereof is held invalid, such invalidity shall

not affect other provisions, items, or applications of this

Act which can be given effect without the invalid

provisions, items, or applications, and to this end the

provisions of this Act are hereby declared severable.

Section 3. All laws or parts of laws in conflict here-

with are hereby repealed.

Section 4. The provisions of this Act shall remain in

full force and effect unless expressly repealed.

Approved July 6, 1978.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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