3342(c)(1) was severable from the other provisions of the NGPA and that therefore a finding by the court that section 3342(c)(1) was unconstitutional would not invalidate FERC's May 6th incremental pricing rule.

On March 24, 1981, FERC filed a brief in which it argued that there was no need for the court to address the constitutionality of 15 U.S.C. § 3342(c)(1). In support of this assertion, FERC stated that it had acted within its authority when it revoked the vetoed rule. The 5 U.S.C. § 553 duty to provide interested persons an opportunity to comment on the revocation of a rule, continued FERC, was Kinapplicable in the instant case because the rule in question was never operative and effective in the first place. Thus, argued FERC, the question of the constitutionality of 15 U.S.C. § 3342(c)(1) had been rendered moot by FERC's valid revocation of the rule. In addition, FERC argued that subsection 3342(c)(1) was not severable from the rest of section 3342. As a result, if the legislative veto provision was deemed unconstitutional all of section 3342 would fall and FERC would have no authority to issue the incremental pricing rule at issue here. There would therefore be no rule to contest. On May 8, 1981, the U.S. Senate and the Speaker of the U.S. House of Representatives filed a motion for leave to file an amicus curiae motion to dismiss for lack of jurisdiction. Permission to file the motion to dismiss was granted on June 9, 1981.

In support of their motion to dismiss, the Speaker and the Senate (amici") asserted that under section 506 of the NGPA (15 U.S.C. §3416) the court of appeals had jurisdiction to review FERC adjudicative orders or rules. However, said the amici, the instant case involved neither an adjudicative order nor a rule; it involved an attempt by CECA to adopt the proposed incremental pricing rule as a final rule. Citing NRDC v. SEC, 606 F. 2d 1031 (D.C Cir. 1979), the amici argued that suits to compel agencies to adopt rules must commence in the district, not the circuit, courts.

Also on May 8, the amici filed a brief in which they responded to CECA's (and the Justice Department's) remaining claims. Like FERC, the amici asserted that subsection 3342(c)(1) was not severable from the rest of section 3342 and that the case had been rendered moot when FERC revoked the challenged rule. In addition, the amici argued that under the Necessary and Proper Clause of the U.S. Constitution (art. I, § 8, cl. 18) Congress was empowered to enact the veto provision at issue here. They further claimed that section 3342(c)(1) in no way interferred with the operation of the Executive branch, and therefore was not violative of the separation of powers doctrine.

On May 26, 1981, CECA filed its response to the amici's May 8th motion to dismiss. With respect to the jurisdictional challenge raised by the amici, CECA argued that it was objecting to the revocation of the rule; it was not challenging FERC's decision not to adopt a rule. Turning to the merits, CECA claimed that because the NGPA required FERC to issue incremental pricing rules, FERC had no authority to revoke the rule. The NGPA, argued CECA, gave FERC the power to amend rules, but the power to amend, continued CECA, did not include the power to revoke. Next, CECA asserted that even if FERC had the power to revoke the rule, FERC's revocation violated the notice and comment requirements

of 5 U.S.C. § 553. These notice and comment requirements, said CECA, can be waived only if the agency shows some valid reason why they should not be followed. FERC made no such showing, asserted CECA, when it revoked the rule. With respect to severability, CECA maintained that nothing in the NGPA or its legislative history suggested that there would have been no authority to issue incremental pricing rules without the legislative veto provision. Turning to the constitutionality of section 3342(c)(1), CECA asserted that the legislative veto exercised here prevented an otherwise valid rule from becoming law. Accordingly, said CECA, since the veto operated to change or repeal the law, it was legislative in character and had to be exercised in accordance with the Constitution, which requires that all legislative actions having the effect of law be the product of House and Senate concurrence coupled with presentation to the President for his approval. Since the veto was exercised without House and Senate approval and without presentation to the President, it was, concluded CECA, an unauthorized and therefore unconstitutional form of legislation.

On January 29, 1982, the circuit court issued its decision. [Consumer Energy Council of America v. Federal Energy Regulatory Commission, 673 F.2d 425 (D.C. Cir. 1982)] Section 3342(c)(1) was declared unconstitutional. Accordingly, the court remanded the case to FERC and instructed it to reinstate the rule.

Before reaching the merits, the court addressed the various jurisdictional issues. First, the court found that FERC's rule was a final rule. Thus, the circuit court, rather than the district court, was the proper forum for the case. Further, under WWHT v. FCC, 656 F.2d 807 (D.C. Cir. 1981), said the court, the courts of appeal clearly have jurisdiction to entertain allegations that an agency should have adopted a rule. In short, regardless of whether one interpreted FERC's action as a failure to adopt a rule or as an attempt to revoke a rule, the circuit court had jurisdiction.

Next, the court discussed severability. After conducting a lengthy review of the legislative history of the NGPA, the court found that Congress would have intended that section 3342 remain in effect even without the legislative veto. Thus, subsection (c) was held to be severable from the remainder of section 3342 and from the rest of the NGPA.

The court then addressed the issue of mootness. The case, said the court, was not rendered moot by FERC's revocation of the rule, since the revocation itself was improper under section 553 of the Administrative Procedure Act which requires that notice and an opportunity to comment be provided prior to an agency's decision to revoke a rule.

Finally, the court reached the merits. It found that section 3342(c)(1) violated the separation of powers doctrine, deprived the President of his right to veto legislation, and unconstitutionally permitted one house of Congress to act on behalf of both houses.

With respect to the issue of whether the Necessary and Proper Clause provided a sufficient constitutional basis to support the section, the court held that it did not. Said the court:

As the Ninth Circuit noted in Chadha [v. INS, 634 F.2d 408, 433 (9th Cir. 1980)] the clause "authorizes Congress to

'make all laws,' not to exercise power in any way it deems
convenient. That a power is clearly committed to Congress
does not sustain an unconstitutional form in the exercise
of the power." [Id. at 455]

With respect to the separation of powers doctrine, the amici had argued that because FERC was an independent agency the legislative veto could not be construed as interfering with any function of the Executive branch. The court rejected this argument, stating that "rulemaking is substantially a function of administering and enforcing the public law. As such, Congress may not create a device enabling it, or one of its houses to control agency rulemaking." [Id. at 471] The danger of such interference, said the court, is that it allows Congress "to expand its role from one of oversight, with an eye to legislative revision, to one of shared administration. This overall increase in congressional power contravenes the fundamental purpose of the separation of powers doctrine." [Id. at 474] The Court further found that section 3342(c)(1) usurped not only Executive, but also Judicial branch functions:

The function of courts in reviewing agency action is to interpret the statutory delegation and determine whether the administrative decision is in compliance with that delegation. The problems that arise when one house of Congress assumes this role are clear. If one house vetoes a rule, the courts are prevented from exercising review, even though under prior decisions on the same statute, or on analogous statutes, they might have upheld the agency's exercise of discretion. And if the rule is not vetoed, the courts are presented with a difficult question of how much weight, if any, to give to the implicit congressional finding that the rule represents a proper exercise of statutory discretion.

Either way, the congressional review is entirely standardless any may be conducted without equal participation of interested parties. If there is a dispute between the houses as to the statutory intent, the rule is defeated, and the interested parties are prevented from gaining a judicial interpretation. Moreover, the reviewing body-which in practice may well be a congressional committee-will inevitably look not primarily to the objective legislative intent at the time the statute was enacted, but rather to the "intent" at the present. This permits Congress effectively to alter the meaning of a statute as circumstances and the composition of Congress change over time. Assumption of this power diminishes the role of the Judiciary and expands that of Congress. Accordingly, it violates the separation of powers doctrine. [Id. at 478 (footnotes omitted)]

On February 18, 1982, FERC filed a notice of appeal to the U.S. Supreme Court. [No. 81-2008]

Status-The case is pending in the U.S. Supreme Court.

The complete text of the January 29, 1982 opinion of the court is printed in the "Decisions" section of this report It page

421.

Pacific Legal Foundation v. Watt

Civil Action No. CV-81-141-BLG (D. Mont.) Mountain States Legal Foundation v. Watt

Civil Action No. CV-81-168-BLG (D. Mont.)

On May 21, 1981, the Committee on Interior and Insular Affairs of the U.S. House of Representatives ("Committee") approved a resolution finding that an "emergency" situation existed in the Bob Marshall, Scapegoat, and Great Bear Wilderness Areas of Montana, and directing the Secretary of the Interior to immediately withdraw these areas from the operation of mineral leasing laws until January 1, 1984. This action was taken pursuant to the authority of section 204(e) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701 et seq. ("FLPMA"), which provides that:

(e) When the Secretary determines, or when the Committee on Interior and Insular Affairs of either the House of Representatives or the Senate notifies the Secretary, that an emergency situation exists and that extraordinary measures must be taken to preserve values that would otherwise be lost, the Secretary, notwithstanding the provisions of subsection (c)(1) and (d) of this section, shall immediately make a withdrawal and file notice of such withdrawal with the Committee on Interior and Insular Affairs of the Senate and the House of Representatives. Such emergency withdrawal shall be effective when made but shall last only for a period not to exceed three years and may not be extended except under the provisions of subsection (c)(1) or (d), whichever is applicable, and (b)(1) of this section. The information required in subsection (c)(2) of this subsection shall be furnished the committees within three months after filing such notice.

On June 1, 1981, Secretary of the Interior James G. Watt signed Public Land Order No. 5952, entitled "Montana Emergency Withdrawal: Bob Marshall, Great Bear and Scapegoat Wilderness Areas," and notified both the Senate and House Committees on Interior and Insular Affairs that it had been signed. In his notification letter to the Committee, Secretary Watt expressed his objection to the conclusions cited as the basis for the Committee resolution, questioned the constitutionality of the action he had been directed to take, and noted his reservations about the statutory authority to "withdraw" lands.

On June 3, 1981, Mountain States Legal Foundation ("MSLF") filed a complaint for injunctive and declaratory relief against Secretary Watt in the U.S. District Court for the District of Colorado. [Civil Action No. 81-C-899] MSLF asked the court to: (1) enjoin the Secretary from withdrawing the Bob Marshall, Great Bear and Scapegoat Wilderness Areas from the operation of the mineral

leasing laws, 2) declare unconstitutional those provisions of section

204(e) which purport to empower the House or Senate Committees on Interior and Insular Affairs to determine that emergency conditions exist and to order the withdrawal of lands on that basis; (3) declare the Committee resolution null and void; (4) declare that neither the House nor Senate committees could use the emergency withdrawal power of section 204(e) to override section 4(d)(3) of the Wilderness Act of 1964 (16 U.S.C. § 1133(d)(3)(1976)) which states that "mining laws and all laws pertaining to mineral leasing shall

extend to... 'wilderness area[s]'" until December 31, 1983; (5) declare that no "emergency" existed in the areas designated in the resolution; and (6) declare that withdrawal of the areas based on the resolution would deprive those plaintiffs holding pending oil and gas lease applications in the designated areas of their Fifth Amendment right to due process.

Simultaneously with the filing of the complaint, MSLF filed a motion for a temporary restraining order and a preliminary injunction to prevent Secretary Watt from taking any action, including the publication in the Federal Register of the public land order withdrawing the three wilderness areas, prior to a full hearing and a decision on the merits of the plaintiff's complaint. In a memorandum accompanying this motion, MSLF argued, first, that its member-applicants would be irreparably injured if a preliminary injunction was not granted because they would lose their priority status if new lease applications subsequently had to be filed. Second, MSLF contended, there would be no adverse environmental impact on the three wilderness areas if a preliminary injunction was granted because there was "no likelihood" that the necessary administrative actions to permit oil and gas exploration would occur in the near future. Third, the plaintiff asserted, the public interest would be advanced by granting the preliminary injunction because pending applications to explore and develop the mineral values of the wilderness areas would continue to be processed. Finally, MSLF maintained, it was likely to win the case on the merits, thus justifying the issuance of temporary injunction preventing the withdrawal. According to the plaintiffs, the delegation of essentially executive powers to the committees in section 204(e) of FLPMA violated the separation of powers doctrine, and there was a "strong likelihood" that a court would so rule. Further, MSLF argued, it was also likely that a court would agree that the Committee and the Secretary of the Interior lacked the authority to in effect repeal the Wilderness Act's provision holding the areas open to mineral leasing until the end of 1983.

The plaintiff's motion for a temporary restraining order was argued before U.S. District Court Judge James Carrigan the same day it was filed. The judge denied the motion from the bench, stating that time constraints did not permit a full examination of the facts and that any injury resulting from the publication of the land order could, in any event, be remedied by the court at a later time by either temporary or permanent relief.

On June 9, 1981, MSLF filed an amended complaint in the Colorado district court to reflect the fact that Public Land Order No. 5952, withdrawing the three wilderness areas from the operation of the mineral leasing laws, had been published in the June 5, 1981