Common Cause v. Department of Energy, 80-2395

• Decision Date: 04 March 1983
• Docket Number: No. 80-2395,80-2395
• Parties: COMMON CAUSE, et al., Appellants, v. DEPARTMENT OF ENERGY, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 245

702 F.2d 245

226 U.S.App.D.C. 266

COMMON CAUSE, et al., Appellants, v. DEPARTMENT OF ENERGY, et al.

No. 80-2395.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 22, 1981.

Decided March 4, 1983.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 80-0856).

Ellen G. Block, Washington, D.C., with whom Kenneth J. Guido, Jr., and Donald Simon, Washington, D.C., were on the brief, for appellants.

Marilyn S.G. Urwitz, Atty., Dept. of Justice, Washington, D.C., with whom Thomas S. Martin, Acting Asst. Atty. Gen., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellees.

Before ROBINSON, Chief Judge, BAZELON and ROBB, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge BAZELON.

BAZELON, Senior Circuit Judge:

Appellants seek injunctive and declaratory relief directing the Department of Energy (DOE) and the Office of Management and Budget (OMB) to develop an energy conservation plan for buildings owned and leased by the federal government. ¹ Such a plan is required by 42 U.S.C. Sec. 6361(a)(2) (1976), enacted as part of the Energy Policy and Conservation Act of 1975 (EPCA). ² The district court dismissed for want of standing. ³ We agree that appellants do not have standing to pursue this action, though for different reasons than those relied upon by the court below.

I. BACKGROUND

A. The Conservation Plan

Congress enacted EPCA in the wake of the Arab oil embargo of 1973-74. The Act is an omnibus measure that includes a myriad of provisions pertaining to the production, stockpiling, conservation, and pricing of energy resources. ⁴ One of EPCA's provisions, added by House and Senate conferees and codified at section 6361(a)(2), provides:

The President shall develop and, to the extent of his authority under other law, implement a 10-year plan for energy conservation with respect to buildings owned or leased by an agency of the United States. Such plan shall include mandatory lighting efficiency standards, mandatory thermal efficiency standards and insulation requirements, restrictions on hours of operation, thermostat controls, and other conditions of operation, and plans for replacing and retrofitting to meet such standards. ⁵

By executive order, responsibility for developing the ten-year plan was delegated in 1976 to the Federal Energy Administration (FEA); ⁶ FEA's duties were in turn transferred to DOE in 1977. ⁷

Pursuant to section 6361(a)(2), President Carter in 1977 established goals for (1) reducing energy consumption by twenty percent in federally owned existing buildings by 1985; (2) reducing consumption by forty-five percent in federally owned new buildings by 1985; and (3) restricting new federal leasing to buildings that will likely meet or surpass the forty-five percent standard. ⁸ To achieve these goals, the President (1) ordered every federal agency to conduct "energy audits" of buildings under its jurisdiction and to implement systematic life-cycle costing procedures; (2) directed every agency to design an individual ten-year plan to meet the percentage-reduction goals; and (3) instructed DOE to develop, with the concurrence of OMB, guidelines for the individual agency plans. ⁹

In November 1979, DOE issued regulations for the formulation of individual agency plans and for the review of such plans by the Department. ¹⁰ Included in these regulations are mandatory standards governing improvements in lighting efficiency, ¹¹ thermal efficiency, ¹² insulation, ¹³ restriction of hours, ¹⁴ thermostat controls, ¹⁵ retrofitting, ¹⁶ and other conditions of operation. ¹⁷ Six months later, DOE, with the concurrence of OMB, published a Preliminary Ten-Year Buildings Plan (Preliminary Plan). ¹⁸ That document notes federal energy conservation accomplishments since 1975, sets further specific goals for the period 1980-90, and incorporates the DOE guidelines for individual agency plans. The Preliminary Plan provides for periodic updating of both the individual and the overall plans; it also notes that, after evaluation and approval by DOE and OMB, the individual plans will be integrated into the Preliminary Plan to produce a Final Ten-Year Buildings Plan (Final Plan). ¹⁹

Issuance of the Final Plan has recurrently been delayed by problems in developing the individual agency plans. Of the eighteen agency plans submitted to date, only one was approved by DOE as initially submitted. Ten more were approved after initial disapproval and revision. The other plans are in various stages of formulation and revision with DOE assistance. ²⁰

Appellants have not contested DOE's assertions that the buildings conservation program has contributed to significant reductions in agency energy consumption to date. ²¹ Although a number of agency plans have not yet been approved, thereby delaying publication of the Final Plan, DOE's buildings standards, and the procedures outlined in the Preliminary Plan, remain in effect in the interim. ²² Thus, independent of the existence of an approved individual plan, every covered agency is governed by DOE's auditing and reporting requirements, ²³ must observe DOE standards with respect to new construction and leasing, ²⁴ and must comply with mandatory lighting, temperature, and other requirements. ²⁵

B. The District Court Action

Appellants filed this action on April 3, 1980, requesting declaratory and injunctive relief that would compel DOE and OMB "to develop and implement the Ten Year Plan for energy conservation in federal buildings as required by 42 U.S.C. Sec. 6361(a)(2)." ²⁶ The complaint asserts that Common Cause's 220,000 members, "[a]s consumers in the marketplace for energy resources, ... compete with the government" for available supplies. ²⁷ Implementation of the ten-year plan, the complaint states, "would reduce energy consumption in federal buildings by at least 31 million barrels of oil per year, at a cost savings of over $900 million per year." ²⁸ Citing the government's alleged failure to act on such a plan, the complaint claims as an injury that "plaintiffs have been harmed by suffering a shortage of energy resources and higher energy prices due to consumption of energy by the Federal government which is wasteful and contrary to law." ²⁹

DOE and OMB raised a variety of defenses, including, inter alia, that (1) the district court lacked jurisdiction over the subject matter of the complaint, (2) appellants did not have standing, and (3) measures taken pursuant to section 6361(a)(2) had rendered the controversy moot. Without addressing the issue, the district court apparently assumed that it had subject matter jurisdiction. ³⁰ After appellants initiated discovery with respect to the mootness issue, however, the district court ordered the parties to focus solely on the question of standing. ³¹

On the government's motion to dismiss, the district court held that appellants lacked standing. The court apparently assumed that judicial relief would lead to reduced government consumption of energy, and focused instead on the question whether such reduction would in turn tangibly benefit the consuming public. ³² After surveying recent standing decisions by the Supreme Court and our own court of appeals, the court announced the principle, "established beyond a doubt," that where consumers allege marketplace injury arising from government illegality, they must demonstrate that the government "sufficiently control[s] the relevant market so that relief will not be merely speculative." ³³ The court concluded that the energy marketplace "is beyond the ability of the defendants to control," noting that "[p]laintiffs, as are we all, are well aware of the myriad forces that cause shortages in the energy marketplace ranging from price rises by OPEC and international politics to the weather. Indeed, the energy resources marketplace is exceedingly complex, if not one of the most complex." ³⁴ Finding that government conservation would itself be unlikely to lower prices or increase available supplies, the court dismissed.

II. DISCUSSION

Article III of the Constitution limits the federal judiciary's role to the resolution of "cases or controversies." In its constitutional guise, standing doctrine is one component of this case-or-controversy requirement. ³⁵ At its "irreducible minimum," ³⁶ the Article III standing requirement demands that a plaintiff properly allege (1) and "injury in fact" to his own interests, that (2) is "fairly traceable" to the defendant's conduct, and that (3) is sufficiently likely to be redressed in a tangible way by available judicial relief. ³⁷

The question of consumer standing presents especially difficult conceptual hurdles. It is settled law that standing may be grounded on a mere "trifle"; ³⁸ settled, too, that the widespread character of an alleged injury does not demean the standing of those who are in fact injured. ³⁹ Yet where injury is alleged to occur within a market context, the concepts of causation and redressability become particularly nebulous and subject to contradictory, and frequently unprovable, analyses. ⁴⁰

The instant controversy, as framed by the parties and the district court, presents a paradigm of this difficulty. The government and the court below view this case as one of third-party causation falling squarely within the ambit of Warth v. Seldin ⁴¹ and its progeny. ⁴² In such cases, the plaintiff seeks to change the defendant's behavior only as a means to alter the conduct of a third party, not before the court, who is the direct source of the plaintiff's injury. Viewed in this manner, appellants' suit to compel reduction in government consumption is merely designed to leverage third-party fuel suppliers into making pricing and allocation decisions favorable to the consuming public. Appellees argue that because energy is not an elastic commodity, and because the ten-year plan will lead only to...