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Mobil Oil Corp. v. Federal Trade Comm'n

Citation: 7 ELR 20705
No. No. 77-6073, 562 F.2d 170/10 ERC 1710/(2d Cir., 09/14/1977) Rev'd

The Second Circuit Court of Appeals reverses a lower court's decision that the Federal Trade Commission was required to prepare an environmental impact statement under the National Environmental Policy Act (NEPA) at the outset of an adjudicatory proceeding brought pursuant to § 5 of the Federal Trade Commission Act seeking divestiture by plaintiffs of certain oil refinery and pipeline holdings. Federal action requiring an impact statement under NEPA does not take place at the commencement of the § 5 proceeding but occurs, if at all, when a final remedial order is issued by the Commission.Prior to that time, there will have been no "irreversible and irretrievable commitments of resources" to action affecting the environment. The court observes that the § 5 proceeding in this case is still in the preliminary discovery stages and that the ultimate shape of any decree of affirmative relief is, at this point, purely speculative. The court also notes that the Court of Appeals for the District of Columbia Circuit reached the same result in Gifford-Hill & Co. v. FTC, 6 ELR 20019, by a different route and finds it unnecessary to the resolution of this case to rule on the overall validity of Rule 1.82(d) of the Commission's Rules of Practice, which provides that NEPA does not apply to any adjudicatory proceedings commenced by the Commission.

Counsel for Plaintiffs-Appellees
Andrew J. Kilcarr
Donovan, Leisure, Newton & Irvine
1666 K St. NW, Washington DC 20006
(202) 785-8900

Vincent Tricarico, Thomas R. Trowbridge, III
Donovan, Leisure, Newton & Irvine
30 Rockefeller Plaza, New York NY 10020
(212) 489-4100

Charles F. Rice, Assoc. General Counsel
Mobil Oil Corp.
150 E. 42nd St., New York NY 10017
(212) 883-4242

J. Wallace Adair, Keith E. Pugh, Jr.
Howery & Simon
Suite 900, 1730 Pennsylvania Ave. NW
Washington DC 20006
(202) 872-8800

Counsel for Defendants-Appellants
Nathaniel L. Gerber, Ass't U.S. Attorney (with Robert B. Fiske, Jr., U.S. Attorney; Samuel J. Wilson, Ass't U.S. Attorney)
One St. Andrews Plaza, New York NY 10007
(212) 791-1963

Van Graafeiland, J. Joined by Motley* and Neaher,** JJ.