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Metcalf v. National Petroleum Council

Citation: 7 ELR 20218
No. No. 76-1223, 553 F.2d 176/(D.C. Cir., 02/18/1977)

The D.C. Circuit affirms the district court's dismissal, 407 F. Supp. 257 (D.D.C. 1976), for lack of standing to sue, of plaintiff's claim that the National Petroleum Council violates the balanced membership provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. App. I, ELR 41019. The Council is clearly an advisory committee within the meaning of FACA, because it exists to advise the Secretary of the Interior. Pursuant to FACA § 9(c), the Council is chartered to the Department of the Interior. There is no dispute that some 140 out of 155 members of the Council are affiliated with the petroleum industry. Appellants contend that this domination violates FACA's requirement that advisory committees not be inappropriately influenced by special interests. Appellees, on the other hand, contend that FACA requires only that the Council contain reasonable representation of all viewpoints within the industry.

For purposes of the standing issue, the court accepts that the Council's advice is inappropriately influenced by the industry. All federal advisory committees, including the Council, undergo close periodic examination by the Congress, the Office of Management and Budget, and the relevant agency. Also, the Council, like other advisory committees, fulfills only an advisory function to the Department and does not formulate policy.

Appellants assert that their consumer interests, including low-cost petroleum products, availability of alternate energy sources, and freedom from environmental damage and threats to health or safety,are injured by operation of the Council. In essence, appellants claim that the Council's biased recommendations cause government agencies to adopt policies favoring the petroleum industry which in turn cause the above injuries. Also, appellant Metcalf claims that his work as a legislator is injured by the biased advice given to the Department of the Interior, over which a subcommittee which he chairs has jurisdiction. See Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973) However, such injuries do not satisfy the constitutional requirement of injury in fact. Harrington v. Bush, No. 75-1862 (D.C. Cir. Feb. 18, 1977). Appellant's injury relates merely to his subjective judgment as to the quality of legislation which his subcommittee can produce.

Similarly, the asserted injury to appellants' consumer interests does not meet the constitutional requirements for injury in fact. The harm asserted is speculative and conjectural in the purest sense. No concrete adversity is present. See Baker v. Carr, 396 U.S. 186 (1962). Indeed, appellants advance no information to make these consumer injuries even identifiable. Cf. United States v. SCRAP, 412 U.S. 669, 3 ELR 20536 (1973). Their concern for oil spills, for alleged aesthetic harms caused by petroleum storage, and for increased possibility of international conflict are also abstract. The alleged environmental injuries cannot be shown to be distinct and palpable to appellants as distinguished from the general public. Warth v. Seldin, 422 U.S. 490 (1975). Regarding injury to senatorial work, appellant Metcalf presents a generalized grievance that a particular source of information relied on by some who testify before his subcommittee is not of the quality that it should be, the injury from which will occur in the future. Courts need more than such subjective allegation of injury in order to fulfill their constitutional role of adjudicating cases or controversies.

Appellant Metcalf's complaints are quite different from those legislative injuries at issue in Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974), because appellant's power to act legislatively remains entirely intact as a result of the Council's alleged illegality. Denial of standing in this instance in no way forecloses other legislator suits, so long as they can meet the threshold standing requirement.

The full text of this opinion is available from ELR (30 pp. $3.75, ELR Order No. C-1106).

Counsel for Appellants
Richard B. Wolf, Victor H. Kramer, Charles E. Hill
Institute for Public Interest Representation, Georgetown
University Law Center
600 New Jersey Ave., NW, Washington DC 20001
(202) 624-8000

Counsel for Federal Appellees
Rex E. Lee, Ass't Attorney General;
Earl J. Silbert, U.S. Attorney;
Leonard Schaitman, John K, Villa
Department of Justice, Washington DC 20530
(202) 737-3381

Counsel for Appellees National Petroleum Council
R. Kenly Webster
Kennedy & Webster
888 17th St., NW, Washington DC 20006
(202) 298-8208

Brice M. Claggett, Charles E. Lister
Covington & Burling
888 16th St., NW, Washington DC 20006
(202) 452-6000

Wilkey, J., joined by Tamm & McKinnon, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]