Whether federal agencies have implicit power to fund the participation of particular groups or parties in their administrative proceedings in the absence of explicit statutory authorization remains one of the most controversial issues in administrative law.¹ The Second Circuit's en banc ruling last year in Greene County Planning Board v. Federal Power Commission² that the Federal Power Commission (FPC) had correctly determined that it had no authority to furnish such assistance created a possibly significant roadblock to the developing movement among federal agencies toward the initiation of such assistance programs.³ In essence, the Second Circuit held that the Supreme Court's disapproval, in Alyeska Pipeline Service Co. v. Wilderness Society,⁴ of judicial awards of attorney fees under the private attorney general rational without express congressional authorization precluded unauthorized fee awards in administrative proceedings as well.

To the criticism of this decision voiced by commentators⁵ has now been added the recent ruling of a district court which flies in the face of the broad Greene County holding. On October 10, Judge Thomas Flannery of the federal district court in Washington, D.C. refused, in Chamber of Commerce v. Department of Agriculture,⁶ to enjoin that agency from funding a consumer group study of the economic impact of proposed regulations. The court determined that several industry groups were unlikely to succeed on the merits of their claim that the agency lacked the power to fund such participation in rule making without explicit statutory authorization. This decision, particularly the court's view of the limited scope of the Greene County ruling, promises to add further impetus to the widespread move toward voluntary initiation of agency programs for assisting public participation in administrative proceedings.