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Gifford-Hill & Co. v. Federal Trade Comm'n

Citation: 6 ELR 20019
No. No. 74-2024, 523 F.2d 730/8 ERC 1526/(D.C. Cir., 11/20/1975)

The D.C. Circuit Court of Appeals affirms dismissal of a suit seeking to nullify a Federal Trade Commission adjudicatory antitrust proceeding, on the ground that the agency failed to comply with the National Environmental Policy Act in Making its decision to prosecute. While the plaintiff may suffer economic "injury in fact" as a result of the FTC's action, this injury does not fall within the arguable zone of NEPA's protection, since the Act is concerned with protecting the environment, not with the desire of parties to prevent or delay administrative efforts to enforce the antitrust laws. This case is therefore to be distinguished from National Helium v. Morton, 1 ELR 20157, which dealt with the conservation of depletable resources, one of NEPA's primary concerns. In addition, the FTC's decision to initiate and adjudicatory proceeding is not an agency action made reviewable by the Administrative Procedure Act. Thus, plaintiff's suit is in effect an interlocutory appeal, and is premature since the FTC is still free to determine whether an environmental impact statement is required before a final order is issued in the antitrust proceeding.

Counsel for Plaintiff-Appellant
Peter J. Nickles
John D. Taurman
Covington & Burling
888 16th Street, N.W.
Washington, D.C. 20006
(202) 293-3300

Counsel for Defendants-Appellees
Leonard Schaitman
Neil H. Koslowe
Appellate Section
Department of Justice
Washington, D.C. 20530

Earl J. Silbert, U.S. Attorney
U.S. Courthouse
3rd & Pennsylvania Ave., N.W.
Washington, D.C. 20001

Gerald Harwood, Asst. Gen. Counsel
John T. Fischback
Clarence Laing
Federal Trade Commission
Washington, D.C. 20580

Wright, Tamm & Wilkey, JJ.