The opinion of the court was delivered by: GREENE
On January 28, 1981, President Reagan issued Executive Order No. 12287, lifting all remaining price and allocation controls on crude oil, gasoline, and propane, effective immediately. He cited as statutory authority for his action the Emergency Petroleum Allocation Act of 1973, as amended, 15 U.S.C. § 751 et seq. (EPAA), and he stated that the action was being taken in order to provide for "an immediate and orderly decontrol of crude oil and refined petroleum products." E.O. 12287, 46 Fed.Reg. 9909 (January 30, 1981).
On February 19, 1981, the plaintiffs
filed a complaint alleging that the Executive Order is invalid because it was not preceded by formal notice, hearing, and other procedures mandated by the Administrative Procedure Act, the EPAA, and the Department of Energy Organization Act, 42 U.S.C. § 7101 et seq. At the same time, plaintiffs filed a motion for a preliminary injunction seeking to halt enforcement of the Executive Order pending final determination of this action. A hearing on this motion was held on February 26, 1981. After consideration of the matters raised at the hearing and the memoranda filed by the parties in light of the standards set forth in Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841 (D.C. Cir. 1977), the Court has concluded that the motion for preliminary injunction must be denied.
1. The government claims that the decision to decontrol was entirely within the unfettered discretion of the President and that his decision to proceed without advance notice or public hearing is for that reason not judicially reviewable. That claim is based on 15 U.S.C. § 760g, which states that, as of June 1, 1979,
notwithstanding any other provision of this chapter ... the President's authority to promulgate, make effective, and amend a regulation pursuant to section 753(a) of this title shall become discretionary....
2. Plaintiffs assert that the President was required to comply with the notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. § 553,
and with the advance publication provision of section 501 of the DOEOA, 42 U.S.C. § 7191. The APA, by its terms, applies to rules issued by government agencies, and section 501 of the DOEOA to regulations and orders issued by the Secretary of the Energy.
In the view of this Court, it is extremely unlikely that either provision was intended to apply to Executive Orders issued by the President.
Literally thousands of Executive Orders have been issued without prior notice and comment since the enactment of the APA,
and the courts have never overturned any of them for want of compliance with APA procedures. In the absence of the weightiest of reasons,
the Court would not be justified in reversing this consistent course of conduct certainly not in the context of a motion for preliminary injunction when there has been no briefing or consideration of the merits. This is so particularly because it is difficult to visualize how the President could adequately perform his duties if he were required to hold APA-type hearings in connection with his myriad duties.
Similarly, section 501 of the DOEOA which in terms applies only to the Secretary of Energy has never been regarded as reaching to Executive Orders, and plaintiffs have provided the Court with no reason why this provision should be so extended.
3. Plaintiffs' contention that section 207(c) of the Economic Stabilization Act required the President to hold formal, public hearings before issuing the Executive Order in question is deserving of more serious consideration. Section 207(c) provides that
This provision relates to the decontrol of petroleum products, and it requires formal hearings with respect thereto by the President or his delegate "to the maximum extent possible." Obviously, the quoted phrase is the crux of the matter.
The case law interpreting this phrase is so sparse as to be practically non-existent. In Minden Beef Co. v. Cost of Living Council, 362 F. Supp. 298 (D.Neb.1973), the court found the term to be "ambiguous," and capable of being read "either as an invitation to offer excuses for not holding hearings or as an emphasizer of the mandatory character of the hearings." 362 F. Supp. at 306.
The Temporary Emergency Court of Appeals has simply taken note of the fact that "§ 207(c) of the Act provides that "to the maximum extent possible,' but not in every case, (public) hearings be held." Pacific Coast Meat Jobbers Association v. Cost of Living Council, 481 F.2d 1388, 1391 (Em.App.1973).
These two quotations appear to be the sum total of the judicial pronouncements on this relatively novel and inherently ambiguous phrase, and neither they nor the decisions in the cases in which they were rendered are dispositive of or even helpful to a disposition of the issues in this case.
The legislative history of section 207(c), which shows a congressional preoccupation with the question of whether or not hearings, if held, would be open to the public, is hardly more illuminating. At the time of the enactment of this provision, Congress apparently paid little attention to the question of the conditions in which a hearing would be required. The phrase simply appeared one day in the legislation following an apparently off-the-record compromise session among members of the Senate, unaccompanied by any significant elucidation or comment. Except for matters unrelated to the present issues, it is fair to say that the legislative history is unenlightening as to the intentions of the Congress. See 117 Cong.Rec. 43288, 43667-43673 (1971).
At the same time, the meaning of the phrase is hardly self-evident. Does "possible" mean "feasible within the time frame desired"; is it synonymous with "not impossible"; should it be construed as requiring a hearing in every or practically every situation on the theory that few, if any, procedural requirements are truly impossible to fulfill? The term "to the maximum extent" adds a further and even greater ambiguity, for it can be regarded as either an exhortation or an ironclad rule. Is it, as the Nebraska court said in Minden Beef, supra, an invitation to offer excuses for not holding a hearing or a means of emphasizing that they must be held? The final, and in a sense most significant difficulty is that the Congress has failed to declare, or even to provide any clue, on the question of who will decide what is possible and the extent to which it may be so the President, the courts, or the President to be followed by judicial review.