Consolidated Edison Co. of New York, Inc. v. O'Leary, 97-1242
| Decision Date | 12 December 1997 |
| Docket Number | No. 97-1242,97-1242 |
| Citation | 131 F.3d 1475 |
| Parties | CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Long Island Lighting Company, Orange And Rockland Utilities, Inc., Pacific Gas & Electric Co., San Diego Gas & Electric Co., Southern California Edison Co., Champion Internationalcorporation, Federal Paperboard Company, Inc., Internationalpaper Company and Weyerhauser Company, Plaintiffs-Appellants, v. Hazel O'LEARY, Secretary of Energy and George B. Breznay, Director, Office of Hearing and Appeals, Department of Energy, Defendants-Appellees, and Chevron U.S.A. Inc., Defendant-Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
Philip P. Kalodner, of Gladwyne, Pennsylvania, argued for plaintiffs-appellants.
Paul T. Michael, Department of Energy, of Washington, DC, argued for defendants-appellees. With him on the brief were Stephen C. Skubel and Gilbert T. Renaut.
Robert M. Westberg, Pillsbury Madison & Sutro LLP, of San Francisco, California, argued for defendant-appellee. With him on the brief was Robert B. Gex.
James F. Flug, Ingersoll and Bloch, Chartered, of Washington, DC, for amici curiae. With him on the brief was Paula Dinerstein.
Before MAYER, SCHALL, and BRYSON, Circuit Judges. BRYSON, Circuit Judge.
This case calls on us to decide whether interested private parties may obtain judicial review of a decision by the Department of Energy not to bring enforcement proceedings against another private party. Acting through its Office of Hearings and Appeals, the Department of Energy refused the request of the Economic Regulatory Administration, another component of the Department of Energy, to issue a remedial order against defendant-appellee Chevron U.S.A. Inc. The remedial order would have required Chevron to make restitutionary payments for violations of regulations issued pursuant to the Emergency Petroleum Allocation Act of 1973 (EPAA), Pub.L. No. 93-159, 87 Stat. 627-35. The appellants, a group of private utilities and paper manufacturers who hoped to share in any recovery that might result from the enforcement proceeding, filed an action in the United States District Court for the District of Columbia to seek review of the decision by the Office of Hearings and Appeals and ultimately to compel the Department of Energy to institute enforcement proceedings against Chevron. The district court denied relief, holding that the appellants lacked standing to challenge the decision of the Department of Energy not to institute enforcement proceedings. We affirm.
The Economic Regulatory Administration was the office within the Department of Energy that was responsible for enforcing the mandatory price and allocation regulations issued by the Department under the authority of the EPAA and its predecessor, the Economic Stabilization Act of 1970(ESA), Pub.L. No. 91-379, 84 Stat. 799. The Economic Regulatory Administration would investigate alleged EPAA violations and issue proposed remedial orders (PROs) to firms or individuals believed to have violated the EPAA regulations. If the subject of a PRO wished to contest the alleged violation, it could obtain an evidentiary hearing before the Office of Hearings and Appeals, the office to which the Secretary of Energy delegated the authority to assess PROs and determine whether to issue remedial orders.
In March 1992, the Economic Regulatory Administration issued a PRO to Chevron. See 10 C.F.R. § 205.192(b). The PRO alleged that during the period of petroleum price controls that ended in 1981, Chevron had received excess revenue from a Department of Energy program known as the Tertiary Incentive Program and that it should be required to disgorge that excess revenue, with interest.
Under the Tertiary Incentive Program, oil producers were eligible for financial benefits if they engaged in tertiary recovery projects, i.e., projects using methods such as thermal, chemical, or miscible gas processes to recover crude oil that could not be recovered by conventional means or through secondary recovery techniques. The benefits to the oil producers included the right to sell at market prices, rather than at controlled prices, sufficient crude oil to recover the expenses of the tertiary recovery projects.
As provided by Department of Energy regulations, the Office of Hearings and Appeals reviewed the PRO to determine whether a remedial order should issue against Chevron. See 10 C.F.R. §§ 205.193-.199B. The Office of Hearings and Appeals permitted the appellants to participate in the proceedings before it. Following briefing and a limited evidentiary hearing, the Office of Hearings and Appeals issued a decision accompanied by a lengthy written opinion, in which it concluded that the PRO issued to Chevron could not be sustained. Accordingly, the Department of Energy did not issue the remedial order sought by the Economic Regulatory Administration. Pursuant to the regulatory scheme, the decision of the Office of Hearings and Appeals not to issue a remedial order brought the proceeding against Chevron to an end.
Dissatisfied with the decision of the Office of Hearings and Appeals, the appellants filed an action in the United States District Court for the District of Columbia seeking an order directing the Office of Hearings and Appeals to issue the requested remedial order against Chevron or, in the alternative, directing the Secretary of Energy to issue the remedial order directly. In a brief memorandum decision, the district court dismissed the complaint. The court ruled that it could not review the decision not to issue the remedial order, because the appellants "lack standing to challenge the result of a public enforcement proceeding." This appeal is taken from the district court's order dismissing the complaint.
We agree with the district court that private parties have no right to judicial review of a decision by the Office of Hearings and Appeals not to issue a remedial order in a proceeding under the ESA or the EPAA.
Four statutes are pertinent to this issue: sections 209, 210, and 211 of the ESA, which were incorporated into the EPAA, and section 503 of the Department of Energy Organization Act (DOEOA), 42 U.S.C. § 7193. Section 209 of the ESA provides a mechanism for public enforcement, allowing the Secretary of Energy to seek injunctive or restitutionary relief against individuals or organizations that have violated any regulation or order promulgated under the authority of the ESA or the EPAA. Section 210 provides a private remedy in district court to "[a]ny person suffering legal wrong because of any act or practice arising out of [the ESA or the EPAA] or any order or regulation issued pursuant thereto." Section 211 gives district courts exclusive original jurisdiction "over cases or controversies arising under [the ESA], or under regulations or orders issued thereunder." Finally, section 503 of the DOEOA, 42 U.S.C. § 7193(a), provides an alternative mechanism for enforcement of the regulations, rules, or orders promulgated under the EPAA. It provides that the Secretary of Energy may issue a remedial order to a person believed to have committed a violation. The recipient of the remedial order may obtain independent administrative review of the order by the Federal Energy Regulatory Commission, see 42 U.S.C. § 7193(c); 10 C.F.R. § 205.199C; 18 C.F.R. § 385.914, followed by judicial review in a United States district court, see 42 U.S.C. §§ 7193(c), 7192.
The statutory scheme creates a clear distinction between the public enforcement mechanisms of section 209 and section 503, and the private rights created under section 210. Enforcement of EPAA regulations under section 209 through remedial orders "is the exclusive right of the government," Ashland Oil, Inc. v. United States Dep't of Energy, 760 F.2d 298, 303 (Temp.Emer.Ct.App.1985), and "private parties have no interest in a public enforcement action" that will be impaired by the disposition of that action, Getty Oil Co. v. Department of Energy, 865 F.2d 270, 275-76 (Temp.Emer.Ct.App.1988). Conversely, the private cause of action under section 210 of the ESA "is the exclusive remedy for private litigants." Consolidated Edison Co. v. O'Leary, 117 F.3d 538, 544 (Fed.Cir.1997). The Temporary Emergency Court of Appeals emphasized the independence of these separate statutory remedies, repeatedly cautioning against "[t]he commingling of private and agency enforcement devices for which Congress has made separate provision." Dyke v. Gulf Oil Corp., 601 F.2d 557, 567 (Temp.Emer.Ct.App.1979); see also Getty Oil Co., 865 F.2d at 275; Payne 22, Inc. v. United States, 762 F.2d 91, 93 (Temp.Emer.Ct.App.1985); Cities Serv. Co. v. Department of Energy, 715 F.2d 572, 574 (Temp.Emer.Ct.App.1983).
The independence of the public and private remedies is underscored by the holdings of the Temporary Emergency Court of Appeals that an enforcement proceeding under section 209 is neither a prerequisite nor a bar to a private action under section 210. See Cities Serv. Co., 715 F.2d at 574 (); Bulzan v. Atlantic Richfield Co., 620 F.2d 278, 282-83 (Temp.Emer.Ct.App.1980) (); see generally Ashland Oil, Inc., 760 F.2d at 303 ().
The appellants base their asserted right to review in this case on their potential interest in the funds that would be recovered from a successful enforcement proceeding. The Petroleum Overcharge Distribution and Restitution Act (PODRA), 15 U.S.C. § 4501 et seq., requires the Secretary of Energy to identify persons who have been harmed by a violation of the EPAA regulations and to use recovered funds to make restitution "to the maximum extent possible." See 15 U.S.C. § 4502. Restitution proceedings are conducted in...
To continue reading
Request your trial
-
Preservation of Los Olivos v. Dept. of Interior, Case No. CV 06-1502 AHM (CTx).
...parties" does not affect whether they in fact have legal standing to challenge a decision.); Consolidated Edison Co. of New York v. O'Leary, 131 F.3d 1475, 1481 (Fed.Cir. 1997) (agency may permit parties to participate in administrative proceedings without creating a right of judicial Santa......
-
Ruel v. New Hampshire Real Estate Appraiser Bd.
...creating a right in those parties to review a negative decision that the [agency] may ultimately make.Consolidated Edison Co. of New York v. O'Leary, 131 F.3d 1475, 1481 (Fed.Cir.1997); see also R.J. Pierce, Jr., 3 Administrative Law Treatise § 16.10, at 1534 (2010). An agency has at least ......
-
Kalodner v. Abraham, 01-5339.
...regulations and to use recovered funds to make restitution [to such persons] `to the maximum extent possible.'" Consol. Edison Co. v. O'Leary, 131 F.3d 1475, 1478 (Fed. Cir.1997) (quoting 15 U.S.C. § 4502). DOE determines both eligibility for restitution and the amount each person should re......
-
Consolidated Edison Co. New York v. Richardson
...Consolidated Edison Co. of New York v. O'Leary, 117 F.3d 538 (Fed. Cir. 1997) (Con Ed I). See also Consol. Edison Co. of N.Y. v. O'Leary, 131 F.3d 1475 (Fed. Cir. 1997) (Con Ed II). Briefly, this case revolves around application of the Economic Stabilization Act Amendments of 1971, Pub. L. ......