Natural Resources Defense Council v. Schultze

No. 79-153 (D.D.C. January 26, 1979)

The court denies plaintiffs' request for declaratory and injunctive relief barring allegedly illegal ex parte communications between defendant Secretary of the Interior and defendant members of the Council of Economic Advisors regarding rulemaking to implement the Surface Mining Control and Reclamation Act of 1977. The United States Court of Appeals for the D.C. Circuit has made it clear that federal district courts do not have jurisdiction to interrupt an ongoing rule-making proceeding unless plaintiff has shown a patent violation of agency authority or a manifest infringement of substantial rights, and that plaintiff's injury is irremediable by the statutorily-prescribed method of review. The court rules that plaintiffs have failed to carry their burden in this regard. First, mere delay in the effective date of the rules, which plaintiffs allege would result from successful industry challenges to the rules due to the improper ex parte contacts, does not constitute irremediable harm considering that the agency is already far behind the statutory schedule for issuing the rules. Second, if on subsequent review of the rules a court finds that some provisions of the rules are tainted by illegal contacts, it could invalidate those portions while maintaining much of the regulatory program. Moreover, the court finds that the communications between the defendants in this case are much less egregious than those involved in past cases, thus tempering plaintiffs' assertion of patent violation of agency authority. The court concludes that since no additional source of jurisdiction can be found in the Surface Mining Control and Reclamation Act, the case must be dismissed.

For a summary of pleadings filed in this case see ELR PEND. LIT. 65600.

Counsel for Plaintiffs
Jonathan Lash
Natural Resources Defense Council
917 15th St. NW, Washington DC 20005
(202) 737-5000

L. Thomas Galloway, Richard L. Webb
Center for Law & Social Policy
1751 N St. NW, Washington DC 20036
(202) 872-0670

Terence L. Thatcher
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6859

Counsel for Defendants
Lois J. Schiffer
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2704

[9 ELR 20124]

Flannery, J.:

Memorandum and Order

This matter comes before the court on defendants' motion to dismiss and the opposition thereto. The plaintiffs¹ filed this suit on January 12, 1979 seeking injunctive and declaratory relief from allegedly illegal ex parte contacts between the defendants.² Upon the filing of the complaint the defendants sought and obtained leave to file a motion to dismiss prior to responding on the merits to the plaintiffs' motion for a preliminary injunction. The motion to dismiss will be granted.

Background

The Secretary of the Interior and his Office of Surface Mining (OSM) are engaged in the promulgation of permanent rules regulating surface mining in the United States, pursuant to § 501(b) of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1251(b). The permanent rules were proposed as "pre-proposed draft regulations" in early summer, 1978, with comments due by August 18, 1978. The Secretary then published "proposed regulations" in September, with a public comment period of 70 days. He held a series of public hearings on the pre-proposed and proposed regulations. Voluminous commerts were received.³ The comment period closed on November 27, 1978.

The Council of Economic Advisors participated in the initial comment period through its membership in the Regulatory Analysis Review Group (RARG).⁴ The RARG, in keeping with its task of examining the economic impact of proposed rules, reviewed the proposed Surface Mining Regulations and submitted a series of comments within the original comment period. The plaintiffs allege, however, that the Council of Economic Advisors continued to solicit the views of industry and economic consultants after the close of the comment period. Moreover, according to the plaintiffs, improper contacts between the CEA and the Department of the Interior (DOI or the Department) took place just after January 1, 1979. These contacts may be briefly summarized.

On January 4, 1979, the Office of Surface Mining published in the Federal Register a notice that it was reopening the administrative record to insert a "catalogue" of oral and written comments between the CEA and outside parties so that the DOI could consult with the CEA regarding the proposed rules. 44 Fed. Reg. 1355. The notice indicated that DOI, after consultation with the Executive Office of the President, and the Office of Legal Counsel at the Department of Justice:

has decided to consult with CEA, prior to promulgation of final regulations. This will assure that the final rules now under consideration will strike the proper balance between protection of the environment and agricultural productivity and the Nation's need for coal as an essential source of energy.

Id. (citation omitted). The Office of Surface Mining solicited comments "related to the nature and substance of contacts which have occurred between CEA and any parties outside the Executive Office of the President subsequent to publication of the proposed OSM regulation. . . ." Id. The notice indicated that the DOI and the CEA were scheduled to meet on January 5, 1979, and that other meetings might be scheduled. Id.

The plaintiffs, who are concerned that the government implement the permanent regulations at the earliest possible date, were unable to attend the OSM meeting with CEA and were unable to discover the substance of the discussions at the meeting. After attempting unsuccessfully to get DOI to cancel the meeting or disregard its substance, they brought this action.

Discussion

In two recent cases this court has had occasion to indicate its disapproval of interlocutory challenges to ongoing rule-making proceedings.⁵ This case is of a pattern: the plaintiffs contend that a procedural defect or irregularity in an ongoing rule-making proceeding which will be subject to judicial review is causing, or will cause, the plaintiffs such dramatic and irreparable harm that the ordinary course of review must be abrogated in favor of immediate judicial supervision. In this case, as in the others, it appears that the circumstances cited by the plaintiffs are not so compelling that the court need intercede at this stage.

[9 ELR 20125]

The standard in this circuit for obtaining jurisdiction to seek injunctive relief in an ongoing rulemaking proceeding was set forth in Nader v. Volpe, 466 F.2d 261 (D.C. Cir. 1972). In that case the plaintiff sought to obtain access to documents reflecting alleged ex parte contacts between the Office of the President and the Department of Transportation concerning motor vehicle safety standards. Id. at 262-63. The court of appeals affirmed a district court dismissal for want of jurisdiction, stating that:

[W]hen Congress has specified a procedure for judicial review of administrative action, courts will not make nonstatutory remedies available without a showing of patent violation of agency authority or manifest infringement of substantial rights irremediable by the statutorily-prescribed method of review.

Id. at 266.⁶ The parties do not dispute the existence of a statutory procedure for judicial review, see 30 U.S.C. § 1276, so the plaintiffs must satisfy the Nader v. Volpe standard to obtain jurisdiction to seek relief.

The most significant shortcoming in the plaintiffs' case is the absence of "irremediable" harm to their rights. The plaintiffs state that they are attempting to ensure that the agency avoids a procedural error that would allow other parties to challenge the rules on final review. Their goal is to ensure that the permanent rules are promulgated in final form as quickly as possible. They suggest that industry would take advantage of this procedural defect to delay the implementation of the rules. Upon close examination, however, the plaintiffs' position lacks merit.

First, it is difficult to see how mere delay amounts to irremediable harm, even in an environmental context. There are, after all, interim rules in effect which will lessen the possibility of serious harm to the environment. The existence of congressionally-mandated deadlines for the establishment of a regulatory scheme⁷ lends credence to plaintiffs' claim that time is of the essence, but it is not dispositive. The Secretary is already far behind in promulgating the final rules as required by the statute. By the time the appeal to this court of the final regulations has run its course, together with any further appeal that might follow, the timetables will be even further askew, even if a remand is not required. Thus, the plaintiffs are incorrect in arguing that the alleged ex parte contacts between OSM and CEA, standing alone, will destroy the Congressional timetable if the court does not act immediately.⁸

Second, the defendants correctly point out that the court can remand only those portions of the final regulations that it determines are tainted by CEA communications. Therefore, even if the alleged ex parte contacts do cause a change in the rules, and even if the court eventually determines that the contacts were wrongful, the court can maintain much of the regulatory scheme while ordering corrective action with respect to the rules affected.

The plaintiffs contended in their papers and at the hearing that "if plaintiffs are correct as a matter of law" the only remedy available on final review will be remand of the entire permanent program. E.g., Plaintiffs' Motion for Prelim. Inj., Mem. of Points and Auth., at 28. After examining the cases on which plaintiffs rely, the court is doubtful that plaintiffs are correct as a matter of law. In United States Lines v. Federal Maritime Commission, 584 F.2d 519 (D.C. Cir. 1978), the court held

only that the agency must either disclose the contents of what it relied upon or, in the case of publicly available information, specify what is involved in sufficient detail to allow for meaningful adversarial comment and judicial review.

484 F.2d at 534-35 (reliance on "reliable data reposing in files" of agency held improper). Here the agency has made public all comments received by it, including CEA's earlier comment pursuant to its RARG mandate, and all comments received by CEA.

Moreover, the recent decisions in this Circuit concerning the unfairness inherent in ex parte contacts involved more egregious and pervasive contacts. United States Lines, supra, 584 F.2d at 541-42 (adjudication; numerous ex parte communications by party seeking exemptions from antitrust laws); Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C. Cir. 1977) (per curiam) (rule making; "widespread ex parte communications involving virtually every party . . . ."); EDF v. Blum, 458 F. Supp. 650, 659-60 [8 ELR 20748] (D.D.C. 1978) (rule making; numerous submissions by many parties with court unable to determine which documents had an impact).

In the present case the contact between CEA and OSM was extremely limited in relation to the entire rule making proceeding. Moreover, the OSM was advised that if any communications between OSM and the President's advisors became part of the basis for a change in the rules, the communication and its effect should be spelled out when the rule was finally promulgated. This has two effects. First, it tempers plaintiffs' claims of "patent violation of agency authority," Nader v. Volpe, 466 F.2d at 266.More importantly, it greatly reduces the possibility that the entire permanent program would be affected if a remand became necessary.

Therefore, it appears unnecessary for the court to consider in detail the plaintiffs' claims of "patent violation of agency authority"⁹ or "manifest infringement of substantial rights" under Nader v. Volpe, because the statutorily prescribed method of review is sufficient to cure plaintiffs' complaints.¹⁰

Finally, the plaintiffs contend that they have an independent jurisdictional basis for this action under the "civil action" provisions of the Surface Mining Control and Reclamation Act. See 30 U.S.C. § 1270. The plaintiffs are incorrect. Both parties agree that § 1270(a)(2) is inapplicable to this case. Section 1270(a)(1) would also appear to be inapplicable, for several reasons. First, Congress provided for the review of rules by enacting § 526(a)(1), 30 U.S.C. § 1276(a)(1). There is no reason to assume that Congress intended to provide two methods of review for the same purpose, particularly when the construction urged by the plaintiffs would eviscerate a well-known principle of administrative law. Second, § 1270(b) places a 60-day limitation on actions brought pursuant [9 ELR 20126] to § 1270(a)(2), unless a violation of the Act "would immediately affect a legal interest of the plaintiff." The parties have not briefed this point in any detail, but it does not appear that the plaintiff has shown a particularized legal interest of its own which would be immediately affected.

The case will be dismissed pursuant to Rule 12(b)(1) for want of subject-matter jurisdiction. An appropriate Order follows.

Order

This matter comes before the court on defendants' motion to dismiss. Upon consideration of the pleadings, the record in this matter, the pertinent law, and the hearing before the court, it is, by the court, this 26th day of January, 1979,

ORDERED that defendants' motion to dismiss shall be, and the same hereby is, granted; and it is further

ORDERED that the case shall be, and the same hereby is, dismissed.

1. The plaintiffs are the Natural Resources Defense Council (NRDC), a non-profit organization well known for its efforts to conserve and enhance the quality of the human environment; the National Wildlife Federation (NWF), a private conservation organization; and the Council of Southern Mountains, a non-profit charitable Virginia corporation with an interest in the surface mining of coal. Complaint, PP1-3.

2. The defendants are the Secretary of the Interior, Cecil D. Andrus, who is sued in both his individual and official capacities, and the Chairman (Charles L. Schultze) and two members (William Nordhaus and Lyle E. Gramley) of the President's Council of Economic Advisors. Id. PP7-9.

3. The plaintiffs state that 173 commenters submitted over 2,000 pages of comments on the pre-proposed draft regulations, and that 465 commenters submitted "thousands" more pages on the draft regulations. Plaintiffs' Mem. in Support of Motion for Prelim. Inj., at 4.

4. The RARG was established by the President in 1978 to consider the economic impact of proposed rules and to review the economic impact statement submitted by rule makers pursuant to Executive Order 12044 (1978). The RARG consists of various cabinent members, the Assistant to the President for Domestic Affairs and Policy, and the Chairman of the Council of Economic Advisors.

5. Grocery Manufacturers of America v. Foreman, CA 78-2245 (D.D.C. Dec. 27, 1978); Chamber of Commerce of the United States v. U.S.D.A., CA 78-1515 [8 ELR 20754] (D.D.C. Oct. 10, 1978).

6. Judge Robinson, for the court, noted a number of good reasons for this judicial self-restraint. First, respect for administrative autonomy demands the avoidance of premature interruption of proceedings. Second, the conservation of administrative and judicial energies counsels restraint. Third, the availability exists in most cases of rectification at the final level of review. Fourth, it is often uncertain whether a given party will be aggrieved by alleged irregularity. Finally, the possibility of conflicting and inconsistent litigation by parties who seek relief suggests at different stages the need for deference during ongoing rulemaking proceedings. Id. at 267-68.

7. It is apparent that the parties to this rulemaking proceeding are already far behind. Section 1251 of Title 30 provides that the Secretary of Interior shall "promulgate and publish" in the Federal Register permanent regulations "[n]ot later than one year after August 3, 1977." The states must submit regulatory plans of their own "by the end of the eighteenth month [sic] period beginning on August 3, 1977 . . . ." 30 U.S.C. § 1253. This would be approximately February 3, 1979. Finally, the Secretary has six months after the plans are submitted to approve or disapprove of them. Id. § 1253(b). If the state plans are not adequate, the Secretary has 34 months after August 2, 1977 to implement a federal program for the state. 30 U.S.C. § 1254(a).

Thus, the Secretary is already six months overdue on the initial rules which will come out after the states are to have submitted plans. Even without a remand on the appeal from the final regulations it is unlikely that the appeal to this court can be completed without disruption of part of this timetable.

8. The plaintiffs contend that if any further delay results from the review of the permanent rules, Congress will have to act to extend the deadlines. It appears to the court, however, that this situation already exists.

9. The court does note, however, that the OMS/CEA "wrongdoing" is not nearly as egregious as plaintiffs would have the court believe. Although the reason for closed meetings is obscure, the defendants did make public all communications between the public and the CEA, most of which were duplicative of material in OSM files, as well as obtaining an opinion letter from the Department of Justice. The Justice Departmet stated that it sees no legal difficulty with intra-executive branch consultation under certain carefully limited circumstances, one of which is the requirements that any reliance on "consultations" must be clearly spelled out in the basis and purpose portion of the rulemaking record. The court, although intimating no view on the ultimate legality of this practice, cannot state that the government's position is frivolous or "patently" illegal.

10. The plaintiffs argue that this case is "ripe for review" under the standard set forth in Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). The defendants contend that Nader v. Volpe involves a test to determine whether subject-matter jurisdiction over an action exists, and only after the Nader test is met can the court consider the more discretionary Abbott Laboratories test. The court need not consider this jurisprudential conundrum in great detail, however, because (1) Nader v. Volpe was decided after Abbott Laboratories and is directly on point with the present case; and (2) even if Abbott Laboratories applied, the possibility of delay discussed in this Memorandum would not constitute sufficient harm to render this case ripe for review.