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Natural Resources Defense Council v. Schultze

Citation: 9 ELR 20124
No. No. 79-153, 12 ERC 1737/(D.D.C., 01/26/1979)

The court denies plaintiffs' request for declaratory and injunctive relief barring allegedly illegal ex parte communications between defendant Secretary of the Interior and defendant members of the Council of Economic Advisors regarding rulemaking to implement the Surface Mining Control and Reclamation Act of 1977. The United States Court of Appeals for the D.C. Circuit has made it clear that federal district courts do not have jurisdiction to interrupt an ongoing rule-making proceeding unless plaintiff has shown a patent violation of agency authority or a manifest infringement of substantial rights, and that plaintiff's injury is irremediable by the statutorily-prescribed method of review. The court rules that plaintiffs have failed to carry their burden in this regard. First, mere delay in the effective date of the rules, which plaintiffs allege would result from successful industry challenges to the rules due to the improper ex parte contacts, does not constitute irremediable harm considering that the agency is already far behind the statutory schedule for issuing the rules. Second, if on subsequent review of the rules a court finds that some provisions of the rules are tainted by illegal contacts, it could invalidate those portions while maintaining much of the regulatory program. Moreover, the court finds that the communications between the defendants in this case are much less egregious than those involved in past cases, thus tempering plaintiffs' assertion of patent violation of agency authority. The court concludes that since no additional source of jurisdiction can be found in the Surface Mining Control and Reclamation Act, the case must be dismissed.

For a summary of pleadings filed in this case see ELR PEND. LIT. 65600.

Counsel for Plaintiffs
Jonathan Lash
Natural Resources Defense Council
917 15th St. NW, Washington DC 20005
(202) 737-5000

L. Thomas Galloway, Richard L. Webb
Center for Law & Social Policy
1751 N St. NW, Washington DC 20036
(202) 872-0670

Terence L. Thatcher
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6859

Counsel for Defendants
Lois J. Schiffer
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2704