The opinion of the court was delivered by: GASCH
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.
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.