Metcalf v. National Petroleum Council
| Decision Date | 04 April 1977 |
| Docket Number | No. 76-1223,76-1223 |
| Citation | 553 F.2d 176,180 U.S.App.D.C. 31 |
| Parties | , Energy Mgt. P 26,038, 7 Envtl. L. Rep. 20,218 Lee METCALF, of U.S. Senate, et al., Appellants, v. NATIONAL PETROLEUM COUNCIL et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Richard B. Wolf, Washington, D.C., with whom Victor H. Kramer and Charles E. Hill, Washington, D.C., were on the brief, for appellants.
John K. Villa, Atty., Dept. of Justice, Washington, D.C., with whom Rex E. Lee, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief for federal appellees. William Kanter and Thomas S. Martin, Attys., Dept. of Justice, Washington, D.C., also entered appearances for federal appellees.
R. Kenly Webster, Brice M. Clagett, and Charles Lister, Washington, D.C., were on the brief for appellees National Petroleum Council and others.
Before TAMM, MacKINNON and WILKEY, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKEY.
The appellants in this case are Lee Metcalf, a member of the United States Senate, and Robert Clarke Brown, a private citizen. On 21 March 1975 appellants filed suit in the District Court against the National Petroleum Council 1 (hereinafter the Council or NPC), the Department of Interior (DOI), the Federal Energy Administration (FEA), and the Office of Management and Budget (OMB), 2 seeking to enjoin the Council from operating as a federal advisory committee. In essence, appellants contend that the Federal Advisory Committee Act 3 (FACA) and the Federal Energy Administration Act 4 (FEAA) are violated because the membership of the Council is not fairly balanced and its advice is inappropriately influenced by special interests. 5
Both appellants predicate their standing to sue on the basis of injuries they allege to have suffered as consumers and citizens. 6 In addition, appellant Metcalf asserts that he has standing in his capacity as a United States Senator. 7 By order filed 9 February 1976, accompanied by a memorandum opinion, 8 the District Court (Pratt, J.) dismissed the case on the grounds that appellants lacked standing to maintain the action. 9 We conclude that appellants have suffered no judicially cognizable injury in their capacity as consumers and citizens and, further, that appellant Metcalf has suffered no injury in his capacity as a Senator. Accordingly, we affirm the order of the District Court. 10
In response to a request from President Truman, the Secretary of the Interior established the National Petroleum Council on 18 June 1946 as a source for advice on all matters related to oil and gas. 11 In an attempt to regulate advisory committees such as the NPC in a comprehensive and uniform fashion, Congress enacted FACA to take effect on 5 January 1973. 12 Although the NPC had operated for a considerable period of time prior to the effective date of FACA, it is clear that the Council is an advisory committee within the meaning of FACA and thus subject to the Act's provisions. 13 The key provisions of FACA for purposes of this litigation relate to the creation, membership, funding, and review of advisory committees.
1. The Creation of Advisory Committees. FACA deals explicitly with two types of federal advisory committees 14 those that advise the President, 15 and those that advise the executive agencies of the Federal Government. 16 The NPC belongs to the latter category in that it exists to advise the Secretary of the Interior. 17
FACA specifies three ways by which an advisory committee can be established: 1) an act of Congress; 18 2) a specific authorization by the President; 19 or 3) a formal determination by the head of a federal agency that the establishment of the advisory body will be "in the public interest." 20 The third method was used in establishing the Council, the Secretary having made the required determination that the Council was necessary for the proper functioning of the DOI. 21 Thus, the existence of the NPC is not mandated by statute but exists because of the initiative taken by the Secretary.
Before an advisory committee can begin to function, it must be formally chartered in accordance with section 9(c) of FACA. 22 The charter must contain, inter alia, information concerning the committee's objectives and the scope of its operations and duties. 23 The charter for the NPC was filed with the Secretary of the Interior on 9 January 1973 and provides the following description of the Council's duties:
The functions of the (NPC) . . . are to advise, inform and make recommendations to the Secretary of the Interior with respect to any matter relating to petroleum or the petroleum industry submitted to it by, or approved by the Secretary of the Interior. 24
A most important point with respect to the chartering of advisory committees is that these committees are chartered to one federal agency. The NPC is chartered to the DOI and to no other agency; the Secretary is responsible for approving the Council's charter. 25 The Council is not chartered to the Congress or any committee thereof. Although the NPC is not chartered to the Congress, FACA does require that a copy of the charter be filed with the standing committees of the Senate and House of Representatives having legislative jurisdiction over the DOI. 26 This requirement serves to facilitate the continuing review of advisory committees which these standing committees must conduct under FACA. 27
Although a federal advisory committee is chartered to only one agency, such committee can serve as an advisory committee to other federal agencies. FACA provides that an advisory group will be considered as an advisory committee within the meaning of the Act if it is "established or utilized" 28 by an agency. The FEAA contains a similar provision with respect to the "utilization" of advisory bodies. 29 Appellants contend that the FEA is indeed utilizing the NPC. 30 Since the FEAA contains its own requirement of a balanced membership on advisory committees, 31 and also incorporates by reference the FACA membership requirements, 32 appellants allege that the FEAA has also been violated. 33 Thus, although the NPC is not chartered to the FEA, appellants have named this agency as a defendant because of its alleged use of advice rendered by the Council.
2. The Membership and Funding of Advisory Committees. There is no dispute among the parties that some 140 out of the 155 members of the NPC are affiliated with the petroleum industry or that the subgroups which handle much of the Council's research work are similarly dominated by personnel from the petroleum industry. 34 The disagreement between the parties, and the precise focus of this lawsuit, concerns the legality of this industry domination of the NPC in light of the membership provisions in FACA. FACA in pertinent part requires that
the membership of (an) advisory committee . . . be fairly balanced in terms of the points of view represented and the functions to be performed by the advisory committee (and) that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or by any special interest, but will instead be the result of the advisory committee's independent judgment. 35
Appellees contend that the requirements of FACA have been met by the present composition of the Council because the Council is balanced "in terms of . . . the functions to be performed by the advisory committee." That is, appellees interpret FACA as requiring only that the Council contain a reasonable representation of viewpoints from within the petroleum industry. 36 Appellees believe that the Council does contain such a balance since "all the operational elements" 37 and "every function of the industry" 38 are represented on the Council.
Appellants, on the other hand, believe that the membership requirements of FACA are violated solely by the fact that 140 members of the Council "are affiliated with the petroleum industry." 39 In appellants' view, such domination in and of itself causes the Council's work to be inappropriately influenced by the petroleum industry and prevents the Council from exercising its independent judgment as required by FACA. All of the injuries which appellants assert in this lawsuit flow from this allegedly unbalanced membership of the NPC. 40 As an element of the relief requested by appellants in this case, they seek a declaratory judgment that the membership of the Council is not fairly balanced. 41 In response to interrogatories, the appellants have refused to specify the criteria which the Secretary of the Interior should use in appointing members to the Council in order to ensure the "proper" balance which they seek. 42 Rather, appellants leave this decision as to the proper membership balance totally to the discretion of the court.
In the context of this case we need not express a view as to the proper interpretation of the membership provisions of FACA. Rather, for purposes of standing we are required to "accept as true all material allegations of the complaint . . ." 43 Accordingly, we assume that, whether the membership of the NPC is or is not fairly balanced as required by FACA, the Council's advice is indeed inappropriately influenced by the petroleum industry. In Part III we shall examine the critical question as to whether this assumed illegality has resulted in any judicially cognizable injury to the appellants. 44
FACA provides very little guidance as to the manner in which advisory committees are to be funded. The Act requires each agency to keep such records "as will fully disclose the disposition of any funds which may be at the disposal of its advisory committees" 45 but does not specify the source from which these...
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