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February 9, 1976

NATIONAL PETROLEUM COUNCIL, JOHN E. SWEARINGEN, Chairman, National Petroleum Council, KENNETH E. BeLIEU, Executive Director, National Petroleum Council, ROGERS C. B. MORTON, Secretary of the Interior, DEPARTMENT OF THE INTERIOR, FRANK G. ZARB, Administrator, Federal Energy Administration, FEDERAL ENERGY ADMINISTRATION, JAMES T. LYNN, Director, Office of Management and Budget, OFFICE OF MANAGEMENT AND BUDGET

The opinion of the court was delivered by: PRATT

[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 407 F. Supp.]


 Upon consideration of defendants' Motions to Dismiss, plaintiffs' Opposition thereto, and the entire record in this case, and for the reasons set forth in the accompanying Memorandum Opinion filed this date, it is this 9th day of February, 1976,

 ORDERED, that defendants' Motions to Dismiss be, and the same hereby is granted, and the complaint is hereby dismissed with prejudice.

 JOHN H. PRATT, United States District Judge

 This action by Lee Metcalf, a United States Senator, and Robert Brown, a private citizen, seeks declaratory and injunctive relief alleging that the National Petroleum Council (Council), Department of the Interior (Interior), Federal Energy Administration (FEA), Office of Management and Budget (OMB), and certain individuals *fn1" are in violation of various provisions of the Federal Advisory Committee Act (FACA), *fn2" and the Federal Energy Administration Act (FEAA). *fn3"

 The gravamen of the complaint is that the Council and its subgroups are unlawfully functioning as advisory committees because they are not fairly balanced in membership and are improperly influenced by certain petroleum industry special interests, contrary to the express requirements of these statutes. Plaintiffs further contend that by unlawfully utilizing the Council's advice in the development of agency policy, programs and recommendations to Congress, and by failing to prevent the unlawful operation of the Council, the federal defendants are acting contrary to law.

 The matter immediately before us concerns defendants' motions to dismiss and in the case of federal defendants, the alternative motion for summary judgment. The ground for these motions is that plaintiffs lack standing to maintain this action and, accordingly, the issues raised by the complaint fail to present justiciable claims. This is a threshold question of jurisdiction which arises from the language of Article III of the Constitution which restricts judicial power to "cases" and "controversies."

 Speaking in language of general application in a case with a different factual context, the Supreme Court has emphasized that in deciding questions of standing the focus is on the party seeking relief rather than on "whether the issue itself is justiciable." In Flast v. Cohen, 392 U.S. 83, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968), the Court elaborated:

"The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The 'gist of the question of standing' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.' Baker v. Carr, 369 U.S. 186, 204 [82 S. Ct. 691, 703, 7 L. Ed. 2d 663] (1962). In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable." 392 U.S. at 99-100, 88 S. Ct. at 1952.

 Subsequently in Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970), the Supreme Court enunciated a two-pronged test for determining standing to sue. First, the plaintiff must allege that the challenged acts must have caused him "injury in fact, economic or otherwise." 397 U.S. at 152. Second, "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or the constitutional guarantee in question. 397 U.S. at 153. Expressed differently, there must be "a logical nexus between the status asserted and the claim sought to be adjudicated." Flast, supra, 392 U.S. at 102. The application of these criteria controls the disposition of this issue of standing.

 A. Plaintiffs' Allegations of Injury.

 Both plaintiffs have alleged three types of injury to themselves as consumers resulting from defendants' activities: (1) Anticipated higher costs for petroleum products; (2) Potential environmental damage and threats to health and safety; and (3) Anticipated denial of benefits from the development of alternative sources of energy. Plaintiff Metcalf, in addition, asserts that he has been and ...

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