I. The Claim.
This matter is before the Court on plaintiff's motion for a preliminary injunction prohibiting certain adjudicatory proceedings before an administrative law judge of the Federal Trade Commission (FTC).
The plaintiff contends that such antitrust enforcement policy and procedures are subject to the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (1970) ("NEPA").
The complaint is in four counts. Count I states that NEPA requires all agencies of the Federal Government to develop methods and procedures whereby environmental factors may receive appropriate consideration in decisionmaking.
Plaintiff asserts that the FTC has specifically exempted its own law-enforcement adjudication proceedings from NEPA.
Plaintiff claims that this is contrary to the requirements of NEPA since the Act requires the FTC to create procedures by which adjudicatory proceedings requiring an impact statement may be identified.
Count II recites the FTC's alleged duty, under NEPA, to consider and weigh adequately environmental concerns with respect to the continuing implementation of programs formulated before the passage of NEPA. In particular, plaintiff complains of the FTC's continuing implementation of the Cement Guidelines and the initiation and prosecution of the proceeding at issue in FTC Docket No. 8989.
Count III states that the FTC has violated NEPA in that it has not filed an environmental impact statement ("EIS") with respect to continuing implementation of the Cement Guidelines.
In Count IV, the plaintiff alleges that the particular adjudicatory proceeding with which it is faced is a major Federal action which requires the filing of an EIS.
On the motion for preliminary injunction, plaintiff requests that the FTC be enjoined from: 1) Taking any action implementing the Cement Guidelines, including prosecution of the administrative action involving plaintiff (FTC Docket No. 8989), unless and until the FTC has established procedures conforming to NEPA with respect to continuing implementation of its enforcement program, has considered environmental issues in connection with implementation of the Guidelines and has filed an EIS with respect to implementation of the Guidelines; 2) Taking any action prosecuting FTC Docket No. 8989 unless and until the FTC has established appropriate NEPA procedures in regard to its adjudicatory proceedings, has properly considered environmental issues in relation to prosecution of FTC Docket No. 8989 and has filed an EIS with regard to such prosecution.
Plaintiff herein is Gifford-Hill and Company, Inc. ("GFH"), a corporation which has its principal place of business in Dallas, Texas. GFH and its subsidiaries are primarily engaged in the production and sale of certain construction materials, including ready-mixed concrete, aggregates, portland cement, concrete sewer and water pipe and other concrete products. Defendant Federal Trade Commission (FTC) is an agency of the Federal Government which administers several statutes regulating competitive and commercial practices. The named individual defendants are commissioners of the FTC.
This suit found its genesis in the FTC's decision of May, 1974, to challenge GFH's acquisition of certain companies. These acquisitions had taken place in 1967, 1970, and 1972 and included companies engaged in the manufacture of concrete products and ready-mixed concrete and in the mining of aggregates.
The FTC was of the opinion that these mergers violated antitrust provisions of United States law.
The FTC apparently took this view because it had determined that the mergers in question were inappropriate under its guidelines respecting vertical mergers in the cement industry.
The FTC advised GFH of its decision and invited attention to the possibility of settlement by a consent order procedure. Negotiations, however, were unsuccessful.
The main disagreement between the parties appears to have been the suggested divestiture by GFH of one of its acquisitions, Becker Sand & Gravel Co. and a ten year prohibition on acquisitions of similar firms. Becker Sand & Gravel (Becker) is a producer of mineral aggregates, including sand and gravel, and is based in North and South Carolina. Becker produces its sand and gravel by means of strip-mining operations.9a At some point in the negotiations, plaintiff suggested that NEPA was applicable to the FTC's adjudicatory proceedings.
Negotiations had reached an impasse and were terminated. The FTC issued an administrative complaint on August 7, 1974. This law suit was filed on August 21, 1974.
IV. Conclusions of Law.
A. Standards for a Preliminary Injunction.
The considerations governing issuance of a preliminary injunction are as follows: 1) whether the movant has shown a substantial probability of prevailing on the merits; 2) whether movant has shown that irreparable harm will follow if the injunction does not issue; 3) whether issuance of a preliminary injunction substantially harms other parties to the proceedings and 4) where lies the public interest. Virginia Petroleum Jobbers Ass'n v. Federal Power Comm'n, 104 U.S.App.D.C. 106, 110, 259 F.2d 921, 925 (1958). These criteria bind the Court in the present case.
B. Application of NEPA.
The sections of NEPA which purportedly govern this case,
require that all agencies, to the fullest extent possible, develop methods and procedures which will permit unquantified environmental values to be considered in agency decisionmaking.
It also requires the preparation of an EIS in connection with every recommendation or report on legislative proposals and other major Federal action significantly affecting the environment.
The Court is also aware of the general policy statement which the Congress has made with regard to NEPA.
(1) Probability of Prevailing on the Merits.
The issue in this case is twofold. First, the Court must determine whether the FTC need weigh environmental factors in deciding whether to initiate an adjudicatory proceeding which has as its purpose the enforcement of United States antitrust or fair competition law. Second, assuming the answer to the first question to be affirmative, the Court must decide whether the FTC must file an EIS before proceeding with its adjudicatory action.
The second aspect of the case obviously depends for its resolution upon the determination of the first aspect. The key question, then, is whether the FTC must weigh and consider environmental factors in determining whether to commence an administrative law-enforcement proceeding.
NEPA has, of course, generated much litigation. Paradoxically, however, there is a paucity of cases in point. The Court has been cited to no case that involved the application of NEPA to what was a law-enforcement adjudicatory proceeding. The Court's own researches have failed to disclose such a case. It thus appears that this is a case of first impression in the Federal system. Accordingly, the Court turns first to the legislative history of the statute to determine if the Congressional intent is clear.
The House Report
is not helpful since it addresses itself almost entirely to the need for a Council on Environmental Quality and the appropriate methods of operation for such a Council. The Senate Report,
however, contains a discussion of other provisions of NEPA. After a study of that Report, however, the Court has concluded that, while helpful, the Report provides no authoritative answer to the question at issue here.
The Senate Report states that the purpose of the Act is to establish
a national policy to guide Federal activities which are involved with or related to the management of the environment or which have an impact on the quality of the environment.