On August 11, 1977, the National Oceanic and Atmospheric Administration (NOAA) of the Department of Commerce joined¹ the growing number of federal agencies that have taken steps toward the initation of programs for providing financial assistance to indigent intervenors in administrative proceedings.² NOAA concluded that it possesses the implicit power to undertake an assistance program in the absence of express statutory authorization on the basis of a series of Comptroller General opinions³ upon which the other agencies currently implementing or proposing to establish such programs without explicit authority have also relied. NOAA's conclusion is noteworthy because it followed by less than two months a decision by the Second Circuit Court of Appeals, sitting en banc, that the Federal Power Commission (FPC) has no such assistance authority.⁴ A sharply divided court decided that this series of Comptroller General opinions did not necessitate a judicial judgment that the FPC had the legal authority to grant intervenor assistance awards without explicit congressional approval.

NOAA's continued reliance on the Comptroller General's opinions despite the Second Circuit's ruling may simply mean that the agency is climbing out on a shaky limb. NOAA's conclusion may, on the other hand, reflect a judgment that the Second Circuit's decision does not foreclose an agency's inherent discretionary power to institute such a program under general appropriations statutes which provide funds for "necessary" agency expenses.