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May 14, 1990

CONSOLIDATED EDISON CO. et al., Plaintiffs,

Harold H. Greene, United States District Judge.

The opinion of the court was delivered by: GREENE


 Before the Court are defendants' motions to dismiss three consolidated cases, each asserting an interest in a Department of Energy escrow fund created as a result of the DOE's settlement of crude oil price control overcharges. The plaintiffs, manufacturers and utilities with claims upon the escrow, seek declaratory and injunctive relief based upon the possibility that there may be insufficient funds to satisfy their claims in full. Defendants argue that certain of the claims are unripe or moot, and that plaintiffs lack standing to bring the remaining claims. For the reasons discussed below, the Court agrees.



 The Department of Energy administered price controls on crude oil produced in the United States from August 19, 1973 through January 27, 1981. During that period, some producers overcharged for the crude oil they produced.

 Congress authorized the DOE to seek restitution of the overcharges. See Emergency Petroleum Allocation Act of 1973, 15 U.S.C. § 751 et seq. (incorporating the enforcement scheme set forth in the Economic Stabilization Act, 12 U.S.C. § 1904). Pursuant to its authority under these statutes, DOE sought refunds from many oil producers.

 The M.D.L. 378 Stripper Well litigation consolidated a number of cases brought by oil producers to enjoin DOE and its predecessor, the Federal Energy Administration, from the enforcement of price control regulations. The court enjoined enforcement of the regulations, but it also ordered plaintiffs to place in escrow the amount that would have been collected had they been upheld. On appeal the regulations were upheld. In re The Department of Energy Stripper Well Exemption Litigation, 690 F.2d 1375 (TECA198 [ILLEGIBLE WORDS]

 In connection with a court-approved settlement of the Stripper Well litigation, DOE issued a Modified Statement of Restitutionary Policy For Crude Oil Cases (MSRP), 51 Fed. Reg. 27,899 (August 4, 1986). The MSRP specified that 20 percent of crude oil overcharges recovered would be reserved for claims by non-parties to the settlement. The remaining 80 percent would be divided between the States and federal government. DOE implemented MSRP by establishing procedures for non-parties to file claims for crude oil overcharges. See Notice Explaining Procedures for Processing Refund Applications in Crude Oil Refund Proceedings under 10 C.F.R. Part 205, Subpart V, 52 Fed. Reg. 11737 (April 10, 1987). The OHA Notice established the evidentiary procedures to be applied in considering the claims of end-users of petroleum products and the method by which DOE would calculate refunds to successful claimants. End-user claimants would be accorded a presumption of injury from the crude oil overcharges upon proof of their volumes of petroleum product purchases. 52 Fed. Reg. at 11771-92.

 With respect to the calculation of refunds, the OHA Notice specified that the agency would employ a "volumetric method" for allocating overcharges. Under this method, claimants would receive refunds equal to the number of gallons of petroleum products they purchased during the period of price controls multiplied by a per-gallon or volumetric refund amount. The volumetric refund amount is calculated by dividing the total crude oil refund monies currently available by the total consumption of petroleum products in the United States during the period of price controls. As additional crude oil refund monies became available, claimants would automatically receive a share of the additional funds.


 The Present Litigation

 Civil Action No. 89-2717. Count One asserts that the 20 percent held by OHA in escrow for end-user claimants may be insufficient to satisfy the claimant's claims. To avoid this possibility, plaintiffs ask the Court to bar any future payments from the remaining 80 percent of the escrow until a determination is made by the Court "to what extent, if any, such funds are necessary to provide plaintiffs and the members of the plaintiffs class with the restitution to which they are entitled." Complaint para. 45.

 Count Two addresses the distribution of monies from the 20 percent escrow fund to the states pursuant to legislation enacted in 1982 and to the U.S. Treasury in connection with settlement of DOE enforcement claims. *fn1" Plaintiffs assert that a portion of that money should have been reserved to satisfy their claims. Plaintiffs seek to remedy this by having that sum withheld from future ...

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