that ninety-five percent of the comments received supported its implementation. Only the fourth fact was unknown before the Secretary asked for comments, and the mere quantity of favorable comments by itself hardly supports a finding of a compelling public interest in the Compact region. A simple head count will not do. Natural Resources Defense Council v. EPA, 261 U.S. App. D.C. 372, 822 F.2d 104, 122 n.17 (D.C. Cir. 1987) (agency decision-making is not "a democratic process by which the majority of commentators prevail by sheer weight of numbers"). The quality, content, reasoning and tenor of the comments might possibly support the finding, but the Secretary failed to explain how.
Indeed, the Secretary is substantially more voluble and explicit about the concerns he has about the Compact than he is about his reasons for making a compelling public interest finding. In the Secretary's press statement published with the finding, he expressed concern about burdening other regions of the country, the potential for the Commission to restrict the ability of producers to ship milk into the Compact region, whether the Compact might have adverse effects on the income of dairy producers outside the Compact region, the extent to which the Commission might utilize its authority to impose production controls, the effect of the Compact on the Department's nutrition programs, and the effect of the Compact on consumers, especially low-income families, within the Compact region. 61 FED. REG. 44,291 (1996); Pl.'s Mot. for Prelim. Injunction, Ex. 30. These concerns, expressed in four paragraphs, overshadow the four reasons, expressed in two sentences, that the Secretary gave for finding a compelling public interest.
Defendant, defendant-intervenor and the six New England states in their amicus curiae brief all argue that the record fully supports the Secretary's compelling public interest finding. Each of them pulls bits and pieces from the exhibits submitted by plaintiff (including the "legislative history" from bills never enacted) and from the comments submitted to the Secretary, as well as from the material considered by some of the state legislatures and governors. From these materials, they argue that the record contains overwhelming support for the Secretary's finding. That may or may not be true. But no matter how thorough counsel may have been in combing through the record and picking out the materials they think support the Secretary's finding, that is no substitute for the Secretary himself reviewing the record materials, examining the relevant data, and coherently articulating the decision he made and the bases on which he in fact rested his finding -- which is, of course, his obligation under the APA. Motor Vehicles Mfrs. Ass'n v. State Farm Mutual Auto Ins. Co., 463 U.S. at 48-49. "An agency's action must be upheld, if at all, on the bases articulated by the agency itself," not those articulated after the fact by its lawyers. Id. at 50; see Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 419-20 (litigation affidavits are merely "post-hoc" rationalizations that cannot be the basis for review under section 706 of the APA); City of Brookings Municipal Telephone Co. v. FCC, 262 U.S. App. D.C. 91, 822 F.2d 1153, 1165 (D.C. Cir. 1987) ("Post hoc rationalizations advanced to remedy inadequacies in the agency's record or its explanation are bootless."). A court may not "supply a reasoned basis for the agency's action that the agency itself has not given." Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Auto Ins. Co., 463 U.S. at 43 (quoting SEC v. Chenery Corp., 332 U.S. 194, 196, 91 L. Ed. 1995, 67 S. Ct. 1575 (1947)).
Because the Secretary failed to articulate any coherent reasons or justification for his finding of a compelling public interest, the Court concludes that there is a substantial likelihood that plaintiff will succeed on the merits of its APA claim.
C. Irreparable Harm and the Public Interest
Plaintiff argues that its members will suffer irreparable harm because the Compact Commission will increase the prices plaintiff's members will have to pay for milk by setting and charging minimum prices above the federal minimum, collecting the money charged from milk processors and distributing it among the more than 4,000 New England dairy farmers, so that it will be impossible for plaintiff's members to recover the excess even if ultimately they are successful in this litigation.
Defendant and defendant-intervenor do not dispute the fact that if the Compact Commission raises the price that milk producers must pay dairy farmers the money will be unrecoverable. They maintain, however, that plaintiff's irreparable harm argument is based on conjecture and speculation because the Commission has not yet raised prices, there is no assurance that it will do so, and there are numerous procedural steps that must be taken before the Commission decides whether to set higher prices. Finally, they argue that it would be an extraordinary and unwarranted step to enjoin a compact consented to by Congress, which the Secretary of Agriculture has found to be in the "compelling public interest" because it offers "the best opportunity to strengthen the dairy industry in the Compact region."
As defendant and defendant-intervenor point out, before the Commission can issue a price order, several procedural steps must be followed: (1) the Commission must undertake notice-and-comment rulemaking, hold a public hearing, consider specific criteria, and issue a written opinion; (2) each of the six member states is given one vote, and the establishment or termination of a price order over the federal price requires a two-thirds vote of the states; (3) each state is given the absolute right to opt-out of any specific regulation with which it does not agree; (4) the Commission must conduct a formal referendum of producers within the regulated area, in which the terms of the pricing order must be approved by a two-thirds vote before any order goes into effect; and (5) any Commission order is subject to judicial review. Compact Art. I, § 3, Art III, § 5, Art. IV, § 9(e), Art V, §§ 11-13, Art. VI, § 16(c). Defendant and defendant-intervenor maintain that in these circumstances, and with these procedural protections in place, plaintiff has failed to show that "the injury complained of [is] of such imminence that there is a 'clear and present' need for equitable relief to prevent irreparable harm." Ashland Oil, Inc. v. FTC, 409 F. Supp. 297, 307 (D.D.C.), aff'd, 179 U.S. App. D.C. 22, 548 F.2d 977 (D.C. Cir. 1976) (citation and internal quotations omitted); see also Wisconsin Gas v. FERC, 244 U.S. App. D.C. 349, 758 F.2d 669, 674 (D.C. Cir. 1984).
Defendant and defendant-intervenor argue that if the Court issues an injunction, defendant-intervenor will be injured because it will be delayed from implementing the Compact pending resolution of this case on the merits. And defendant-intervenor asserts that an injunction could seriously injure the Compact region, whose dairy farmers are already suffering severe economic problems, and that a preliminary injunction would stop the Commission in its tracks before it has had a chance to address the problems, whether through raising prices or through its investigative or other functions. Its position is supported by the amicus brief of the six Northeast Dairy Compact states. Of course, these arguments represent the flip side of plaintiff's injury argument: implementation of the Compact would cause economic harm to plaintiff, while failure to implement would cause economic injury to defendant-intervenor's members and the New England states.
As for the public interest, plaintiff argues that a preliminary injunction would be in the interest of the consuming public, while defendant makes an equally strong argument that a preliminary injunction would not be in the public interest because of the harm it would cause to Northeast dairy farmers and to the Compact duly consented to by Congress. The Court would be better equipped to balance the public interest factors if Congress had explained the public interest considerations that led it to pass Section 147 of the Farm Bill in the first place, or if the Secretary of Agriculture had articulated his reasons for finding a compelling public interest in the Compact region. While Congress is not required to articulate the reasons for its actions, the Secretary of Agriculture is. A carefully crafted and articulated statement of reasons for his compelling public interest finding by the Secretary of Agriculture would have been of great assistance to the Court in considering the balance of harms, but no such statement exists. Under the circumstances, the Court cannot make an educated decision regarding whether issuing a preliminary injunction in this case would or would not be in the public interest.
Our court of appeals has recently reiterated the principle that even though the courts have a great degree of flexibility in applying the four-part test of Holiday Tours, the moving party must always demonstrate at least "some injury" because "the basis for injunctive relief in the federal courts has always been irreparable harm." CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d at 747 (citation and internal quotations omitted). In this case, plaintiff has failed to show certain, imminent irreparable harm. As defendant and defendant-intervenor point out, the Compact was explicitly designed with significant limitations on the Commission's ability to act swiftly. Unless the Court is to assume that the procedural steps -- including notice, public comment, referenda and super-majority voting requirements -- are mere charades, there is as yet no assurance that the Commission will in fact raise milk prices, or when, and thus there is no irreparable harm at this time. While it appears that a clear mission of the Commission is eventually to raise the Northeast region's milk prices above the federally regulated price order, a claim of injury for a possible future pricing order at this point is speculative and conjectural. See Compact Art. II, § 2(8), Art. IV, §§ 9, 10; 61 FED. REG. 44,291; Pl.'s Mot. for Prelim. Injunction, Ex. 30. Until the Compact Commission adopts a pricing order or at least is much further along in its process, plaintiff has not been irreparably harmed.
Although plaintiff is unlikely to succeed on the merits of its nondelegation argument, it has a substantial -- indeed, almost certain -- likelihood of success on the merits of its APA claim. On the other hand, the irreparable injury it may suffer is remote and speculative. In the absence of some showing of immediate and irreparable injury, the Court must deny the request for a preliminary injunction, although it does so without prejudice to plaintiff's filing an application for a temporary restraining order or motion for preliminary injunction if circumstances later warrant.
Since plaintiff ultimately is likely to succeed on the merits of this case, requiring the Secretary of Agriculture's rule to be set aside under the APA, and since the parties are in agreement that this case should be put on a fast track and will be disposed of on dispositive motions without a trial, the Court will set an expedited briefing and argument schedule.
An Order consistent with this Opinion is issued this same day.
PAUL L. FRIEDMAN
United States District Judge
Upon consideration of the memorandum in support of plaintiff's motion, defendant's and defendant-intervenor's opposition briefs, plaintiff's reply brief, each party's supplemental brief, the memoranda discussing the issue of an administrative assessment, the amicus curiae briefs of the six Northeast Dairy Compact states and of the Midwestern states of Minnesota, Wisconsin, North Dakota, South Dakota, and Senators Paul Wellstone, Rod Grams, Russell D. Feingold and Herbert Kohl, and the arguments presented by counsel in open Court, and for the reasons stated in the Court's accompanying Opinion, it is hereby
ORDERED that Plaintiff's Motion for Preliminary Injunction is DENIED; and it is
FURTHER ORDERED that any necessary discovery shall be completed by December 31, 1996. Motions for summary judgment and motions to dismiss shall be filed by January 23, 1997; oppositions by February 7, 1997; and reply briefs by February 14, 1997. The Court will hear oral argument on February 25, 1997 at 2:00 p.m.
PAUL L. FRIEDMAN
United States District Judge