Legal Authorities Available to the President to Respond to a Severe Energy Supply Interruption or Other Substantial Reduction in Available Petroleum Products
| Decision Date | 15 November 1982 |
| Docket Number | 82-71 |
| Citation | 6 Op. O.L.C. 644 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | Legal Authorities Available to the President to Respond to a Severe Energy Supply Interruption or Other Substantial Reduction in Available Petroleum Products |
Theodore B. Olson Assistant Attorney General Office of Legal Counsel.
TABLE OF CONTENTS
TABLE OF CONTENTS GLOSSARY OF ABBREVIATIONS
1. § 103. Limitations on Exports
2. § 106. Accelerated Production Rates
3. §§ 151-161. Strategic Petroleum Reserve
4. §§ 201-202. Energy Conservation Contingency Plans
5. §§ 251, 252, 254. Authorities in Support of the Allocation and Information Provisions of the IEP
a. § 251. International Allocation
b. § 252. Antitrust Defense
c. § 254. Exchange of Information with the International Energy Agency [ 645]
1. § 101(a). Priority Performance of Contracts and Allocation of Materials
2. § 101(c). Maximizing Domestic Energy Supplies
3. § 708. Voluntary Agreements
4. § 710. Employment of Persons from the Private Sector
1) Conflict-of-interest Restrictions
2) Antitrust Exposure
DPA Defense Production Act of 1950
EAA Export Administration Act of 1979
EECA Emergency Energy Conservation Act of 1979
EEPA Energy Emergency Preparedness Act of 1982
EPAA Emergency Petroleum Allocation Act of 1975
EPCA Energy Policy and Conservation Act
ESA Energy Security Act
FEMA Federal Emergency Management Agency
FERC Federal Energy Regulatory Commission
FPA Federal Power Act
FPM Federal Personnel Manual
FTC Federal Trade Commission
FUA Powerplant and Industrial Fuel Use Act of 1978
IEA International Energy Agency
IEEPA International Emergency Economic Powers Act
IEP International Energy Program
IPR Industrial Petroleum Reserve
Mer Maximum efficient rate of production
MLLA Mineral Lands Leasing Act
NATO North Atlantic Treaty Organization
NEA National Emergencies Act
NESO National Emergency Sharing Organization
NGA Natural Gas Act
NGPA Natural Gas Policy Act
NPRs Naval Petroleum Reserves
OCS Outer Continental Shelf
PURPA Public Utility Regulatory Policies Act of 1978
SPR Strategic Petroleum Reserve
TEA Trade Expansion Act of 1962
Ter Temporary emergency production rate
TWEA Trading with the Enemy Act
WOCs Without Compensation Employees [ 648]
This memorandum is submitted in response to § 3 of the Energy Emergency Preparedness Act of 1982 (EEPA), Pub. L. No 97-229, 96 Stat. 248 (1982). That section amends Title II of the Energy Policy and Conservation Act, 42 U.S.C. §§ 6201-6422 (1982), by adding, inter alia, a new § 272(a). Section 272(a) directs the Attorney General, in consultation with the Secretary of Energy, to prepare for transmission by the President to Congress a "Memorandum of Law" describing the "nature and extent of the authorities available to the President under existing law to respond to a severe energy supply interruption or other substantial reduction in the amount of petroleum products available in the United States."[1] Section 272(a) provides that the Memorandum of Law shall address the legal bases for certain specific emergency preparedness activities to deal with a petroleum shortage, [2] and to distinguish among the threshold standards for activation of the President's statutory authorities.[3] [ 649]
In to implement fully the intent of the EEPA, we have prepared the following analysis of the primary statutory authorities that would be available to the President in the event of a severe energy supply interruption. In addition to describing the requirements, scope, and limitations of those statutory authorities, we attempt to address each of the legal issues specifically raised by Congress during consideration of the EEPA and the legal bases for the activities enumerated in § 272(a)(3).. Consistent with the scope and legislative intent of the EEPA, [4]the analysis focuses on statutory authorities that could be used to respond to a "petroleum emergency"—i.e., standby authorities that could be exercised in the event of a sudden substantial reduction in petroleum products available to the United States.[5] We generally do not address the President's broad authority to take actions to reduce the likelihood that any of these "emergency" authorities will ever have to be exercised, or particular statutory authorities with respect to energy emergencies resulting from a shortfall in energy sources other than petroleum.
It is important to recognize at the outset that any memorandum of law discussing the powers of the President in the context of nonexistent, necessarily incomplete, and hypothetical facts is of limited utility and should not be regarded as decisive or exhaustive of the President's legal authority to take any specific action based on a factual situation that may arise in the future. The exercise of the various broad powers of the President to deal with "emergencies" is so often tied to the particular facts and circumstances confronting the President at that time that a general and hypothetical discussion of his authority should not and cannot be viewed as dispositive of his authority in actual emergencies.[6] See generally Dames & Moore v Regan, 453 U.S. 654, 660-62, 669 (1981).
Finally, the purpose of this Memorandum is limited to outlining the nature and scope of the statutory authorities available to the President. The Memorandum does not address whether or how the President should exercise particular authorities. That question is primarily a policy rather than a legal matter, and therefore outside the scope of this Memorandum. In that regard, it should be noted that, as described more fully below, the available statutory authorities generally provide the President with broad discretion to determine if, when, and how they should be exercised, taking into account the facts of any future energy emergency and the President's best judgment as to how to prevent or deal with the emergency situation.
Part I of this Memorandum outlines the scope and applicability of existing statutory authorities available to the President to deal with a petroleum emergency. Part II describes how those statutory authorities may support or limit the [ 650] particular energy preparedness activities enumerated in § 272(a)(3)(A). Part III groups the statutory authorities according to the three triggering situations listed in § 272(a)(3)(B), to the extent consistent with the specific provisions of those statutes.
A number of statutes currently provide the President with authority that may be available in the event of a substantial domestic or international shortfall in petroleum supplies ranging from direct authority to allocate and to restrict imports or exports of petroleum products, to authority to undertake or facilitate energy emergency preparedness planning and programs. The scope of the President's authority under these statutes necessarily depends on the...
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