Simply stated the government's defense is that the urgent nature of the oil allocation system, as evidenced by the short time span within which the FEO was required to act, relieves the defendant from NEPA's procedural obligations.
While it is widely acknowledged that the 'action forcing' requirements of NEPA (lying at the heart of which is the preparation, circulation and consideration of an impact statement) are generally mandatory in nature and are not easily avoided,
the Court is nonetheless unpersuaded by plaintiff's contentions.
Counsel for the parties have not furnished, and this Court has not found any case in which the precise question of NEPA applicability to emergency FEO action is specifically addressed. The case of Cohen v. Price Commission, 337 F.Supp. 1236 (S.D.N.Y.1972), however, offers considerable guidance. In that proceeding, NEPA was invoked to contest the validity of the authorization by the Price Commission, pursuant to the Economic Stabilization Act of 1970, of a fare increase on New York City subways and buses. The matter came before District Judge Weinfeld on plaintiffs' application for a preliminary injunction, and although carefully ruling only that the heavy burden required for the granting of such temporary relief had not been satisfied, the Court's analysis of the crucial criterion -- likelihood of success on the merits -- is extremely enlightening on the claim Gulf now pursues. Judge Weinfeld significantly acknowledged the urgent and pressing responsibilities fostered upon the Price Commission in its attempt to stabilize the economy:
'There can be no question that if the purposes of the Economic Stabilization Act are to be achieved, the President or his delegated representatives must be free to act with promptness and dispatch.' 337 F.Supp. at 1240.
After then noting that the requirements of NEPA called for more deliberate and time consuming action the Cohen Court expressed doubt that Congress could have intended the Price Commission to be bound and potentially stymied by the mandates of NEPA. It was cautioned that such compliance might 'render impossible the achievement of that program.' 337 F.Supp. at 1242.
The Cohen case is sufficiently analogous to the matter sub judice and this Court adopts its reasoning as the basis for a final determination. Section 4(a) of the Allocation Act obligated the FEO to promulgate mandatory oil allocation regulations within 15 days after the emergency legislation's enactment. Fifteen days thereafter the regulations became effective. Establishment of such a deadline makes it abundantly clear that Congress had intended the FEO administrator to proceed expeditiously. Compliance with NEPA, on the other hand, would disarm the FEO of its ability and authority to take necessary action with the required degree of speed.
In light of the Congressional demand that immediate measures be adopted the Court feels that the inherent tension between NEPA and the Allocation Act, at least as it involves the specific regulations here in issue, must be resolved on balance with a finding that the FEO was not required to draft an environmental impact statement. Gulf has sought much comfort in certain guidelines issued by the Council on Environmental Quality (CEQ)
which require that when an agency finds it necessary to take action 'without observing the provisions of these guidelines concerning minimum periods for agency review and advance availability of environmental statements, the Federal agency proposing to take the action should consult with the Council about alternative arrangements.' 38 Fed.Reg. 20566. This provision, however, which pertains to the circulation of drafts, is apparently applicable to emergency action needed after an impact statement has been compiled. It does not affect time and effort expended in its actual preparation. In light of the exhaustive analytical content required of impact statements,
it would be illogical, indeed virtually impossible, to demand a statement in this instance.
The Court will enter an Order denying plaintiff's motion for summary judgment, granting the government's motion for summary judgment and dismissing the amended complaint.