National Wildlife Federation v. United States: Judicial Review of Environmental Budget Requests

Recent litigation and congressional enactments have served to spotlight a relatively new and little considered statutory mechanism which attempts to inject congressional oversight into the process of formulating the President's annual budget request. This mechanism, which has appeared as an appendage to certain environmental legislation,¹ requires the President, when requesting congressional appropriations for programs established by such statutes, to provide a "statement of reasons" explaining in detail whether the level of funding requested meets the target levels set out in the legislation. If the appropriation request envisions less than full achievement of the statutory goals, the President must also explain why other national objectives have been assigned a higher budgetary priority.

Outwardly such provisions would appear to require merely the transmission of the same information congressional committees routinely receive via the massive federal budgetary statement and the subsequent testimony of agency representatives. But the innocuous facade belies a larger purpose. The apparent intent behind such provisions is to elicit from the Chief Executive a detailed explanation of the political horse-trading that underlies a particular aspect of the budget request. Where congressionally authorized programs to manage better the nation's natural resources have been whittled away by the President, full justification must be presented publicly, much in the way of "dirty laundry."

Terming one such provision an "unacceptable intrusion on the President's obligations and authority as Chief Executive."² President Carter recently scuttled it and its vehicle by vetoing proposed amendments to the Sikes Act.³ Congress' attempted inclusion of this provision in the Act can be well understood in light of the fact that in the 18-year history of the statute, which provides for the creation of programs to enhance fish and wildlife resources on federal lands, no President has ever requested funds for its implementation. The President's veto spelled defeat for Congress' attempt to exert at least some control over the final decision whether to utilize the full amount of authorized funding.

At the same time, a federal district court in Washington, D.C. was considering a lawsuit brought by an environmental group seeking an order to compel President Carter to comply with a similar provision in the Forest and Rangeland Renewable Resources Planning Act (RPA).⁴ In National Wildlife Federation v. United States⁵ the court refused to decide the merits of the case, finding that "court intervention" in an essentially executive-legislative dispute is barred by the "political question" doctrine. The court's decision appears to limit substantially the utility of this oversight mechanism to the public, and therefore to the Congress. It also affords a glimpse of the range of judicial and constitutional hurdles which can arise when the courts are asked to assert the interests of the public within the sphere of the legislative process.

The Resources Planning Act

The Forest and Rangeland Renewable Resources Planning Act of 1974⁶ shifted much of the responsibility for planning the management of the national forests from the Forest Service to Congress. While leaving in place the basic policy mandates of the Multiple-Use Sustained-Yield Act of 1960,⁷ the RPA erected a detailed and comprehensive scheme of study and reporting requirements⁸ which in effect gives Congress the dominant hand in the translation of those policies into specific programs. Further, in recognition of the critical role of executive implementation of congressionally supervised and funded programs,⁹ Congress assumed substantial power to oversee the once exclusively presidential domain of requesting and spending federal monies.

Section 8(a) directs the President to submit to Congress a "Statement of Policy" which is to be the basis for subsequent appropriations requests for Forest Service activities, and provides that Congress may disapprove or rewrite the statement.¹⁰ Although the President retains discretion to request appropriations in any amount, if he asks for less than that required to achieve all of the policy goals outlined in the Statement of Policy, § 8(b) requires him to delineate that deficiency in "qualitative and [8 ELR 10203] quantitative terms."¹¹ Such deficiencies must also be justified in a "Statement of Reasons." The last sentence of § 8(b) adds the gratuitous if not insignificant warning that once funds have been appropriated they must be expended in accordance with the Congressional Budget and Impoundment Control Act of 1974.¹² In sum, the process of managing the nation's forests can be seen as being composed of five separate stages: (1) developing policy, (2) translating policy into specific programs, (3) submitting the budget, (4) appropriating monies, and (5) spending such monies. Congress has always had unexcepted power over stages (1) and (4), and through § 8(a) now has full supervisory control over stage (2). In addition, § 8(b) and the Impoundment Act give it extensive supervisory authority over stages (3) and (5).

In February 1976 President Ford submitted to Congress for its approval the required Statement of Policy and received no response from either house within the statutorily prescribed 60-day review period. That was presumably the guidance document for the Forest Service budget request for fiscal year (FY) 1979 which was submitted in January 1978. That request clearly sought monies to achieve less than all of the Forest Service objectives outlined in the Statement of Policy.¹³ In June, the National Wildlife Federation (NWF) sued the United States and President Carter, seeking declaratory and injunctive relief in the form of mandamus to remedy the President's alleged failure to prepare the explanation and justification required under § 8(b).

National Wildlife Federation v. United States

On July 20, after congressional consideration of the Forest Service budget had been largely completed, the federal District Court for the District of Columbia denied the requested relief in an oral opinion which did not do justice to the issues at hand.¹⁴ On the merits, Judge Gesell was evidently of the view that the plaintiff had not established a violation of the first of § 8(b)'s requirements, that budget shortfalls¹⁵ be described in qualitative and quantitative terms. The defendants conceded that the fiscal 1979 budget itself did not provide an adequate explanation, but argued that subsequent testimony before congressional committees by Forest Service representatives had conveyed the necessary information to Congress. Plaintiff, while conceding the substantive adequacy of the information transmitted through congressional testimony, contended that the Act required the President himself to prepare a cohesive description of the budgetary shortfalls. As thus framed, the issue appeared to be not what information must be transmitted but rather who must transmit it. The court, however, declined to approach the question in this way. Judge Gesell ruled that because the required information had in fact been provided, the issue had been rendered moot.

In assessing compliance with § 8(b)'s further requirement that reduced appropriation requests be justified in terms of competing national policies, the court again insinuated that the President should prevail on the merits. Without identifying the source, the court found an executive expression of policy which tended generally to support reduced budgetary requests. Without reaching a conclusion on the merits, however, Judge Gesell ruled that in any event an action in mandamus is inappropriate to enforce this statutory duty. Though stated and supported in only two sentences, this ruling was apparently grounded on the view that since the required statement of justification involves a considerable degree of executive discretion, its preparation is not a ministerial act and therefore not enforceable via mandamus. The court simply failed to address plaintiff's remaining claim for declaratory relief, even though it would appear to escape the infirmities of the mandamus action.

The opinion addressed a further and independent barrier to "court intervention." After establishing that the case presented a political matter "of substantial consequence" because it involved a congressional assertion of greater control over national forest management and appropriation policy, the court found that the ambiguity in the statue as to the precise duty imposed left it powerless under the case law¹⁶ to enforce § 8(b) against the President. The tenor of the opinion makes it fairly clear that this ruling is less a straightforward application of precedent than a result of the court's understandable reluctance to order the President to furnish [8 ELR 10204] Congress with the required § 8(b) statements. The court's sense of awkwardness with the situation in which this litigation placed it was underscored by the addition of confessed dicta to the end of the opinion in which the judge suggested that in the future the President comply more fully with § 8(b) in order to minimize judicial involvement in matters of such sensitivity. The clear implication of this portion of the opinion was that the President had in fact not satisfied the requirements of § 8(b), in contradiction to its earlier intimations.

Discussion

National Wildlife Federation v. United States raises a number of intriguing legal and political questions which merit full analysis but were either ignored, glossed over, or confused by the district court's opinion. One of the most potent of President Carter's threshold defenses was that the RPA does not confer upon the plaintiff a private right of action entitling it to sue to remedy alleged violations. The Act itself does not explicitly confer on anyone a right to sue to redress violations, nor does a cause of action appear to be authorized by either the Administrative Procedure Act, which provides for judicial review solely of agency action,¹⁷ or the Mandamus Act.¹⁸ Assuming that a cause of action cannot be found at common law or inferred from the Constitution, the plaintiff was therefore left with asserting an implied cause of action under the RPA. In Cort v. Ash¹⁹ the Supreme Court addressed the question of implied causes of action and established two concurrent tests that appear to be determinative of the question in National Wildlife Federation:

1. Does the statute confer upon plaintiff a federal right? The few traces in the legislative history of the RPA tending to show that it was incidentally intended to benefit the public²⁰ appear insufficient under Cort. There the Court suggested that a private right of action will be inferred only to protect the principal beneficiary of the statute,²¹ which in this case is undeniably Congress.

2. Is there a demonstrable legislative intent to create the asserted right of action? No such intent can be found in the committee reports accompanying the RPA, and none was cited by plaintiff in its submissions to the court.

Judge Gesell's abbreviated ruling that the first of plaintiff's claims had been rendered moot also deserves further attention. First, in appears that under Roe v. Wade,²² which was cited for support by Judge Gesell, the mootness doctrine is inapposite to the case.²³ Secondly, under the facts of the case, a dismissal because of mootness is essentially a determination on the merits. Because the parties had stipulated the adequacy under § 8(b) of the description of the budgetary shortfall which eventually reached Congress through the testimony of Forest Service officials, the issue had in effect become whether the President must submit such data in a formal document or whether ad hoc answers in congressional testimony by administration representatives is a satisfactory medium. By ruling the question moot, the court ducked the issue, a result which is hardly distinguishable from a ruling on the merits that the President need not submit an 8(b) statement if congressional appropriations committee members are successful in subsequently extracting such information from federal officials. The practical effect is a return to the traditional budgetary process, the deficiencies of which originally resulted in the enactment of § 8(b).

Though Judge Gesell denied plaintiff's request for relief on more technical grounds, dicta at several places in the opinion suggest that § 8(b)'s dual requirements may have been satisfied on the merits. The court attached much significance to plaintiff's concession that, aside from the question of who must transmit the information, Congress had eventually received sufficient data to constitute the required "qualitative and quantitative" description of proposed budget shortfalls. The court also pointed to certain statements by the President tending to justify the lesser requests.

Upon closer analysis, however, it appears that the President did not comply with the Act.The defendants andthe court missed the point in suggesting that agency response to congressional questioning constitutes compliance. If § 8(b) means anything, it is that Congress clearly wanted something more than the verbal testimony of government employees that it has always received in the past. On its face the measure demands the required explanation be included within "requests presented by the President," and in this case that demand was not met. In fact the defendants conceded that "[s]trictly speaking, the budget documents do not contain a qualitative comparison of the FY 79 budget and the RPA Program."²⁴

Similarly, the President did not comply with § 8(b)'s requirement of a statement of reasons justifying reduced Forest Service program levels. The defendants' reliance on and the court's notation of the fact that the Explanatory Notes accompanying the Budget listed two [8 ELR 10205] overall budgetary goals, a balanced budget and minimum federal employment levels, is misplaced. Congress has always been aware of the advantages associated with a reduced federal budget; the RPA, however, necessitates more than boilerplate adverting to such perennial choices. It requires "that the President's position on the environmental resource budgets involved [be] clearly stated"²⁵ and that the tradeoffs made be "clearly outlined:"²⁶

The budget like the program therefore will require that the Executive "show and tell" in order that in each step of the process the best and most enlightened decision can be made with all the facts before the Congress that were used by the Executive. The result will produce sound budgeting from start to finish.²⁷

The Lessons of NEPA

The refusal of the court in National Wildlife Federation v. United States to issue mandamus against the President is reminiscent of a line of cases in which various plaintiffs have sought to enforce compliance with the directive of the National Environmental Policy Act (NEPA) that environmentally significant "proposals for legislation" be accompanied by an environmental impact statement (EIS).²⁸ Although this directive has been referred to as the "neglected half" of NEPA's mandate because it is widely disregarded by the executive branch,²⁹ recent developments on the judicial³⁰ and administrative³¹ levels suggest that the requirement is emerging from a prolonged infancy. The cases that have broached this question show, however, that the judiciary is unwilling or simply unequipped to provide enforcement by interjecting itself into the legislative process, despite the existence of clear violations of the law.

In Wingfield v. Office of Management and Budget³² for example, plaintiffs sought an order restraining the Office of Management and Budget (OMB) from submitting reports to Congress on pending legislative proposals without preparing an EIS. The district court dismissed the case on the grounds that the Act conferred neither a right of action nor standing to sue to obtain relief from injury claimed as a result of the legislative process. In Realty Income Trust v. Eckerd³³ the D.C. Circuit determined that the General Services Administration had violated the Act in failing to submit an impact statement to Congress along with a request for funds with which to lease a proposed office building. The court nevertheless declined to grant injunctive relief deeming it a "vain and useless" exercise given that an EIS had ultimately been prepared and that the relevant congressional committee had made no move to reconsider or rescind their earlier approval of the project. In Chamber of Commerce v. Department of the Interior³⁴ injunctive and declaratory relief was sought to prevent the Department of the Inteior from submitting proposed responses to congressional inquiries regarding pending litigation which would reserve certain Alaskan lands until an EIS could be prepared. The court stated that injunctive relief which would in any way impede the legislative process was "wholly out of the question."³⁵ Declaratory relief was deemed almost equally intrusive and inappropriate because, in the court's view, if Congress were to heed a declaratory judgment and delay its operations pending submission of the responses along with an impact statement, the intrusive effect would be indistinguishable from that of an injunction. If, on the other hand, Congress were to choose to proceed without benefit of the information, the court order would be reduced to an idle gesture.

Although the thrust of these decisions is that traditional equitable remedies are ill-suited for protecting the interests of private parties in the legislative process, there is a more sanguine view. In National Wildlife Federation the court's ruling that mandamus is never available to compel the performance of a discretionary duty is supported by substantial authority.³⁶ There is also authority, however, for the proposition that even though the act to be compelled is imbued with discretion, if the duty to act is clear, mandamus is proper.³⁷ The facts of National Wildlife Federation seem to fall more properly within the latter category. The statements required by § 8(b) of the RPA represent a summary of an inherently discretionary decision-making process, but the obligation to submit them is mandatory rather than contingent on an exercise ofjudgment by the President.

An additional NEPA case in this area indicates that declaratory relief may still be a viable remedy. In Atchison, Topeka and Santa Fe Railway v. Callaway³⁸ the district court not only found that plaintiff had both standing to sue and a private right of action under NEPA but that it was within the power of the court to issue a declaratory judgment to the effect that the Corps of Engineers had not complied with the Act in connection with a proposal for legislation authorizing the reconstruction of Lock and Dam 26 on the Mississippi River. [8 ELR 10206] The court in Atchison, unlike the court in Chamber of Commerce, recognized the subtle yet significant impact upon Congress of a judicial declaration of the executive's noncompliance with legal requirements regarding legislative proposals. Indeed, such relief would to some extent have satisfied the plaintiff in National Wildlife Federation, which brought the suit alleging injury in fact to its interest in lobbying and presenting testimony on Capitol Hill, and sought declaratory relief presumably on the reasoning that it would advance that interest.

Constitutional Questions

It is fairly evident that in National Wildlife Federation the refusal to the court to fashion appropriate relief was due less to its inability to apply conventional forms of relief creatively than to its understandable reluctance to get into the ring with the more powerful branches of government. Unfortunately, the constitutional issues which inevitably arise in such a case received less than their proper share of attention.

Whereas NEPA establishes largely procedural standards requiring federal agencies to identify and consider the environmental impacts of particular activities or programs, § 8(b) of the RPA has a constitutionally distinguishable purpose: to require the Chief Executive to divulge his ordering of economic, environmental, and other national priorities to the extent that they influence the Forest Service appropriation request. If, from the constitutional scheme generally, or from the text of Article II³⁹ the President has discretion to play his cards close to the vest in legislative or appropriation matters, § 8(b) is arguably an unconstitutional intrusion into his privileged sphere. In reality, however, nice constitutional arguments tend to get trampled in the rough and tumble of the federal appropriations process. Congressional committees always have and surely always will exercise the power, whatever its source or validity, to grill agency representatives as to the policy foundations and implications of legislative requests and recommendations.

For that matter, one might think that the President would have little objection to submitting on paper what he would otherwise submit through the testimony of subordinates. The brief history of provisions similar to § 8(b), however, shows that they have met strong presidential opposition. A case in point is a provision in the recently passed amendments to the Sikes Act⁴⁰ which required that appropriation requests for programs established by the Act be justified if for less than the full amount authorized to be appropriated.⁴¹ The amendments were vetoed by President Carter, ostensibly on the basis of political and administrative rather than constitutional objections to the requirement of a statement of reasons. They have since been reenacted without the objectionable provision and signed by the President.⁴² Section 7(b) of the Soil and Water Resources Conservation Act⁴³ imposes an essentially identical duty except that it requires the relevant Secretary, "through the President,"⁴⁴ to submit the statement of reasons separately from the budget message. As originally proposed, § 7 also contained a "legislative veto" provision, which drew vociferous opposition from the Departments of Agriculture and Justice on substantive as well as constitutional grounds.⁴⁵ Indeed, a virtually identical section within a similar bill passed in 1976⁴⁶ drew equally strong objections and prompted President Ford to veto it. Under attack, Congress conceded on the legislative veto provision, but retained the requirement of a statement of reasons. Apparently satisfied with somewhat more than half a loaf, President Carter quietly signed the bill.⁴⁷ Thus, congressional attempts to require executive justification of appropriation requests have been strongly resisted, but this resistance appears to have been a defense of political rather than constitutional turf.

Where Congress makes inroads into presidential prerogatives to the point that the constitutional boundary of presidential powers is infringed, it is appropriate that the courts, when called upon, protect the province of the executive. Where, however, as in National Wildlife Federation v. United States, the courts are asked to enforce against the President the legislature's attempt to shift the balance of authority toward that constitutional boundary, the separation of powers doctrine may act as a bar to judicial action. In the NEPA cases discussed above, the federal courts have generally demurred from considering the merits, finding that the separation of powers doctrine compels judicial restraint in the absence of an unambiguous mandate to enforce the statute against the executive branch:

For the court to interject itself into the complexities of the ongoing legislative process at the behest of a private party would require the clearest kind of directive from Congress.⁴⁸

This rationale seems particularly compelling in the context of the controversy leading to NWF's suit, in which Congress sat on its hands following the President's disregard of § 8(b), and capitulated totally to the veto of the Sikes Act amendments. Since Congress is currently soft-pedaling its authority over the appropriations process, it seems reasonable that the courts should not infer from an ambiguous statute a private right of action in order to give effect to congressional intent of questionable vitality.

Although in National Wildlife Federation the court [8 ELR 10207] declined to reach the merits, this determination was apparently not made on separation of powers grounds. Rather, the court ruled that:

[t]here is no way that the court can identify from the statute either the nature or sufficiency of the explanations the President may be required to give. The court, therefore, sits instructed by Baker v. Carr, and like cases, to abjure a political question of this kind because there does not appear to be any discernible standard that can be applied.⁴⁹

Though the court's intuition was accurate, its application of law was a bit off the mark. Difficult statutory or constitutional interpretation is neither a basis for judicial reticence nor the basis of the principle to which the court alluded. In Baker v. Carr⁵⁰ the Supreme Court described several formulations of the political question doctrine. Those which are apposite here the those which restrain a court from acting where the legal questions before it are so interwoven with issues of political policy that the court is left without guidance from traditional sources, or where the requested relief would express a "lack of respect due coordinate branches of government."⁵¹ Analogy to National Wildlife Federation is apt; when viewed in this light Baker more strongly supports the court's dismissal of the case.

Conclusion

The policies reflected in § 8(b) of the RPA are in the tradition of the policies underlying NEPA: complete, open, and early discussion of the factors to be considered in federal decision making affecting the environment. Section 8(b), however, has its roots not in the wave of environmental activism which swept Congress in the early 70s, but in the constitutional crisis of 1974, when a preeminent issue was the President's impoundment of monies appropriated under the Federal Water Pollution Control Act of 1972 and other statutes.⁵² The major federal environmental laws rely to a great extent on a vigilant public, armed with an explicit right to bring citizen suits, to enforce their dictates in the federal courts. The Impoundment Act on the other hand, which was the culmination of the impoundment controversy, neither authorizes citizen suits nor envisions judicial enforcement of its largely procedural directives. Indeed, the legislative history shows that Congress was uncertain as to whether the courts had the requisite enforcement powers.⁵³ In light of the fact that § 8(b) of the RPA was cast in the mold of the latter statute, it is easier to understand the difficulties of Judge Gesell in coming to grips with the provision in National Wildlife Federation.

Unlike NEPA, § 8(b) requires candid policy explanations from the President, not the agencies, a distinction which in this case is not overly technical. This distinction makes the required statements, which are to disclose policy making at the highest level, much more valuable than an EIS. This distinction, however, may also render the provision unconstitutional; more likely is that it renders the provision judicially unenforceable, which has the same practical effect. This conclusion is compelled by the case law. The courts have stated without dissent that they will not issue injunctions or mandamus to coerce executive complince with duties owed the Congress. Declaratory relief has not been consistently repudiated, but neither has it ever been issued.

The unavailability of the courts to break this political stalemate may be fortuitous. It cannot be contended that Congress, through the power of the purse, cannot use its leverage to obtain from the President any information deemed desirable. Acknowledgement of this political fact is a recurring theme.⁵⁴ Recourse to judicial enforcement of provisions such as § 8(b) therefore appear unnecessary, and in addition may be unwise. One potential problem is that the presidential "statement of reasons" could evolve in the manner of the "detailed statement" required under NEPA, and overburden the budget process. Secondly, would some doctrine akin to "executive privilege" prevent the courts from taking the "hard look" into the decision maker's personal thought processes authorized by the Supreme Court in Citzens to Preserve Overton Part v. Volpe?⁵⁵ Finally, there is the danger that Congress could lose its current flexibility to require more or less complete information from the executive branch according to the perceived need. Even if Congress were satisfied with the content of the President's budget presentation on a particular line item, special interest groups such as the National Wildlife Federation would presumably see some benefit in a more elaborate and public presentation and, if given a right of action, sue to compel complinace. Thus, whereas statutorily required presidential statements of explanation appear to have potential value to Congress, judicial review of executive compliance with such requirements has been shown to be unnecessary, unwise, unavailable, and possibly unconstitutional.

Congress' failure to enforce § 8(b) and its capitulation on the Sikes Act amendments may signal the decline of such provisions. On the other hand, the insertion of an essentially identical provision in the Soil and Water Resources Conservation Act of 1977 may demonstrate a subsequent recognition of the value of the mechanism to improve environmental decision making. If Congress intends to rely more heavily on such measures in the future, it should do so with less ambiguity than in § 8(b) of the RPA, and it should confront the President directly rather than rely on the indirect and awkward proxy of citizen suits in the federal courts.

1. See Forest and Rangeland Renewable Resources Planning Act of 1974, § 8(b), 16 U.S.C. § 1606(b), ELR STAT. & REG. 41442:2; Soil and Water Resources Conservation Act of 1977, § 7(c), 16 U.S.C. § 2006(c); S. 2987 § 3(c), 95th Cong., 2d Sess. (1978) (proposed amendments to the Sikes Act).

2. Veto of the Sikes Act Amendments of 1978, 14 WEEKLY COMP. OF PRES. DOC. 1250 (July 10, 1978).

3. 16 U.S.C. § 670(a)-(o).

4. 16 U.S.C. § 1600 et seq., ELR STAT. & REG. 41441.

5. __ F. Supp. __, 8 ELR 20651 (D.D.C. 1978).

6. 16 U.S.C. § 1600 et seq., ELR STAT. & REG. 41441.

7. 16 U.S.C. § 528, ELR STAT. & REG. 41406.

8. Major provisions of the Act require the preparation and submission to Congress of:

(1) A Renewable Resources Assessment, which includes an inventory of renewable forest resources and an analysis of Forest Service policies and programs. The first assessment, submitted in 1976, is to be updated in 1969 and every ten years thereafter.

(2) A Renewable Resources Program, including recommended objectives for Forest Service programs. The program is to be updated every five years.

(3) A Statement of Policy, designed to be the basis for appropriations requests for Forest Service activities.

Each of these documents is subject to disapproval by Congress.

9. The RPA moved through Congress at the height of the impoundment controversy in 1974, as impeachment proceedings against President Nixon were underway.

10. Though beyond the scope of this Comment, such "legislative veto" provisions are of questionable constitutionality. See generally Buff and Gellhorn, Congressional Control of Administrative Regulation: A Study of Legislative Vetoes, 90 HARV. L. REV. 1369 (1977); Schwartz, The Legislative Veto and the Constitution — A Reexamination, 46 GEO. WASH. L. REV. 351 (1978).

11. Section 8(b) of the RPA provides:

Commencing with the fiscal budget for the year ending September 30, 1977, requests presented by the President to the Congress governing Forest Service activities shall express in qualitative and quantitative terms the extent to which the programs and policies projected under the budget meet the policies approved by the Congress in accordance with subsection (a) of this section. In any case in which such budget so presented recommends a course which fails to meet the policies so established, the President shall specifically set forth the reason or reasons for requesting the Congress to approve the lesser programs or policies presented. Amounts appropriated to carry out the policies approved in accordance with subsection (a) of this section shall be expended in accordance with the Congressional Budget and Impoundment Control Act of 1974.

12. Codified in relevant part at 31 U.S.C. §§ 1400-1407.

13. "The proposed budget for the Forest Service is considerably less than that suggested by the reports prepared pursuant to the Resources Planning Act." THE BUDGET OF THE UNITED STATES GOVERNMENT, Fiscal Year 1979 at 123.

14. National Wildlife Federation v. United States, __ F. Supp. __, 8 ELR 20651 (D.D.C. 1978).

15. The court had difficulty in determining whether budget shortfalls are to be determined by comparing the goals of the budget request to the goals set out in the Renewable Resources Program, or the Statement of Policy, or both. The parties were in agreement that the Statement of Policy was technically the appropriate reference document: since, however, that statement painted a far more superficial picture of Forest Service goals than the extensive discussion within the Program, plaintiff argued that to comply with the legislative intent the Statement of Policy should be read to incorporate the Program. Defendants did not resist this interpretation vigorously. See Plaintiff's Memorandum of Points and Authorities [ELR Doc. No. 655-B] at 4-5; Defendants' Memorandum of Points and Authorities [ELR Doc. No. 655-C] at 20-21; Plaintiff's Reply Memorandum of Points and Authorities [ELR Doc. No. 655-D] at 2-5. For summaries of the moving papers in National Wildlife Federation v. United States see ELR PEND. LIT. 65570, 65583.

16. The court cited to "Baker v. Carr [369 U.S. 186 (1962)] and like cases." 8 ELR at 20652.

17. 5 U.S.C. §§ 701-706, ELR STAT. & REG. 41005. There appears to be no case law interpreting the APA to authorize suits directly against the President. Cf. Jensen v. National Marine Fisheries Service (NOAA), 512 F.2d 1189 (9th Cir. 1975).

18. The Mandamus Act, 28 U.S.C. § 1361, does not create a cause of action in this case unless the President can be shown clearly to owe a duty "to the plaintiff," which is a serious issue in this case. But cf. Peoples v. United States Department of Agriculture, 427 F.2d 561 (D.C. Cir. 1970) (Mandamus Act confers standing to sue to redress alleged violation of statutory duty even though plaintiff is only incidentally intended to be a beneficiary of statute).

19. 422 U.S. 66 (1975).

20. See H.R. REP. NO. 1163, 93d Cong., 2d Sess. 5 (1974); 120 CONG. REC. 26554-26556 (1974).

21. 422 U.S. at 81-82.

22. 410 U.S. 113 (1973).

23. In Wade the currency of the legal questions before the Court hinged on the plaintiff's pregnant condition. Naturally, by the time the case had run the course of the legal gauntlet, the plaintiff's pregnancy had come to term, prompting the defendant to argue mootness. The Court reached the merits of the case nonetheless, declaring that where the legal issues are "capable of repetition, yet evading review," it would constitute a dereliction of judicial duty to let them slip away under the veil of mootness. 410 U.S. at 125. Similarly, the federal budget process is completed in a matter of months. Under this aspect of National Wildlife Federation, annual challenges to the President's budget could be annually dismissed on mootness grounds.

24. Defendants' Memorandum of Points and Authorities [ELR Doc. No. 655-C] at 21.

25. S. REP. NO. 686, 93d Cong., 2d Sess. (1974), reprinted at 1974 U.S. CODE CONG. & AD. NEWS 4060, 4073.

26. Id.

27. Id.

28. 42 U.S.C. § 4332(2)(C), ELR STAT. & REG. 41010.

29. See Comment, Impact Statements on Legislative Proposals: Enforcing the Neglected Half of NEPA's Mandate, 7 ELR 10145 (1977).

30. Sierra Club v. Andrus, __ F.2d __, 8 ELR 20490 (D.C. Cir. 1978). See also Comment, NEPA and the Budget Process: D.C. Circuit Announces EIS Requirement Applies to "Non-Routine" Appropriations Requests, 8 ELR 10126 (1978).

31. Regulations soon to be issued by the Council on Environmental Quality are expected to enforce this aspect of § 102(2)(C). See Comment, CEQ Proposes Ambitious NEPA Regulations for Comment, Stands Ground Despite Agency Criticism, 8 ELR 10129, 10131 (1978).

32. 7 ELR 20362 (D.D.C. 1977).

33. 564 F.2d 447, 7 ELR 20541 (D.C. Cir. 1977).

34. 439 F. Supp. 762, 8 ELR 20054 (D.D.C. 1977).

35. 439 F. Supp. at 767, 8 ELR at 20056 quoting from W. RODGERS, ENVIRONMENTAL LAW § 7.2(d) at 714.

36. Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 219 (1930) remains controlling.

37. Harlem Valley Transportation Ass'n v. Stafford, 500 F.2d 328 (2d Cir. 1974); McDowell v. Schlesinger, 404 F. Supp. 221, 6 ELR 20224 (W.D. Mo. 1975).

38. 431 F. Supp. 722, 7 ELR 20377 (D.D.C. 1977) (denial of defendants' motions to dismiss).

39. U.S. CONST. art. II, § 3 provides:

[The President] shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such measures as he shall deem necessary and expedient. …

(Italics supplied.)

40. 16 U.S.C. § 670(a)-(o).

41. S. 2987, 95th Cong., 2d Sess. (1978).

42. Pub. L. No. 95-420.

43. 16 U.S.C. § 2000 et seq.

44. 16 U.S.C. § 2006(c). The constitutional significance of this semantic change, if any, is difficult to assess.

45. See H.R. REP. NO. 344, 95th Cong., 1st Sess. 15-19, reprinted at 1977 U.S. CODE CONG. & AD. NEWS 3679-3684.

46. S. 2081, 94th Cong., 2d Sess. (1976).

47. 13 WEEKLY COMP. OF PRES. DOC. 1805 (November 18, 1977).

48. Wingfield v. Office of Management and Budget, 7 ELR at 20362 (D.D.C. 1977); accord, Chamber of Commerce v. Department of the Interior, 439 F. Supp. 762, 8 ELR 20054 (D.D.C. 1977). See also National Wildlife Federation, 8 ELR at 20652. But see Atchison, Topeka & Santa Fe Ry. v. Callaway, 431 F. Supp. 722, 7 ELR 20377 (D.D.C. 1977).

49. 8 ELR at 20652.

50. 369 U.S. 186 (1962).

51. Id. at 213.

52. See City of New York v. Train, 420 U.S. 35, 5 ELR 20162 (1975).

53. See Impoundment of Appropriated Funds by the President, Joint Hearings on S. 373 before the Senate Ad Hoc Subcommittee on Impoundment of Funds of the Committee on Government Operations and the Subcommittee on Separation of Powers of the Committee on the Judiciary, 93d Cong., 1st Sess. 50 (1974).

54. Chamber of Commerce v. Department of the Interior, 439 F. Supp. at 768, 8 ELR at 20057; Realty Income Trust v. Eckerd, 564 F.2d at 458, 7 ELR at 20544; Wingfield v. OMB, 7 ELR at 20362. See also ANDERSON, NEPA IN THE COURTS 135 (1973).

55. 401 U.S. 402, 1 ELR 20110 (1971). But cf. Peoples v. Department of Agriculture, 427 F.2d 561, 567 (D.C. Cir. 1970) (Cabinet secretaries generally immune from oral depositions).