National Resources Defense Council, Inc., v. Securities and Exchange Commission

No. 72-1148 (D.C. Cir. February 8, 1973)

Holding that the Securities and Exchange Commission (SEC) exercised permissible discretion in declining to grant immediate approval of the petitioners' rulemaking request, the court dismisses the case. The court, however, declines to decide whether the SEC has improperly delayed in carrying out its responsibility under the National Environmental Policy Act or whether it has improperly interpreted the Act, stating these issues may be brought before the district court.

Counsel for the Plaintiffs
Roger S. Foster
Charles R. Halpern
Center for Law & Social Policy
1751 N Street, N.W.
Washington, D.C. 20036

J. G. Speth
Edward L. Strohbehn, Jr.
Natural Resources Defense Council
1710 N Street, N.W.
Washington, D.C. 20036

Counsel for Defendant
David Ferber Solicitor, Securities and Exchange Commission
Harvey L. Pitt
John Milton Turner
Securities and Exchange Commission
Washington, D.C. 20001

[3 ELR 20154]

PER CURIAM:

MEMORANDUM

The respondent's motion to dismiss is granted. The Commission's action in declining to grant immediate approval of the petitioner's rulemaking request was an action taken in the permissible exercise of the Commission's discretion and was not a final order subject to review by this court under applicable sections of the Securities Act of 1933 and the Securities Exchange Act of 1934. This view of the matter does not of course preclude review in this court of the sufficiency or adequacy of rules which the Commission may eventually issue. Cf. City of Chicago v. FPC, 147 U.S. App. D.C. 312, 458 F.2d 731 (1971), cert. denied 405 U.S. 1074 (1972)

The petition also raises a question whether the Commission has delayed in carrying out its responsibility under NEPA or has failed property to interpret its obligations under that Act. We [3 ELR 20155] intimate no judgment on the Agency's current interpretation of its obligations under NEPA. Whether the Commission has improperly delayed its action under NEPA or has improperly interpreted the Act are issues which may be resolved in the United States District Court for the District of Columbia where petitioner may proceed by appropriate action under the Administrative Procedure Act or by way of an action for declaratory judgment.

JUDGMENT

This cause came on to be heard on a petition for review of an order of the Securities and Exchange Commission and was argued by counsel. On consideration of the foregoing, it is

ORDERED AND ADJUDGED by this Court that the above entitled case is hereby dismissed for the reasons set forth in the attached memorandum.