Appendix — Federal Energy Administration v. Algonquin SNG, Inc.

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APPENDIX

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1 Rercacted saaatl

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-382

FEDERAL ENERGY ADMINISTRATION, ET AL..

Petitioners

ALGONQUIN SNG, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI FILED

SEPTEMBER 10, 1975

CERTIORARI GRANTED NOVEMBER 3, 1975

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-382

FEDERAL ENERGY ADMINISTRATION, ET AL.,

Petitioners

—v.—

ALGONQUIN SNG, INC., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

INDEX

Page

Ee 1

Complaint for Injunctive Relief, Declaratory Judgment and

Mandamus (Filed January 27, 1975) 2.0.0... 17

Plaintiff's Motion for Preliminary Injunction (Filed Febru-

aT 86

Notice and Motion to Intervene as a Plaintiff (Filed Febru-

EE EE Er 40

Complaint in Intervention of State of Minnesota (Filed

a cessuastennesunnssnnanacs 42

Notice and Motion for Preliminary Injunction (Filed Feb-

EE 59

Complaint for Mandamus, Injunctive, Sateen aad other

Relief (Filed January 27, 1975) ........... LRA TD 61

Motion for Preliminary Injunction and other Preliminary

Relief (Filed February 3, 1975) 0.0.00... 71

Motion for Preliminary Injunction and other Preliminary

Relief (Filed February 5, 1975) o.oo. 73

I 81

EE 91

ii INDEX—Continued

Proclamation 4341 ..._..... wee

Proclamation 4355 .

Proclamation 4370 (April 3 30, . 1975) .

Proclamation 4377 (May 27, 1975)...

Memorandum for the President (Report on Section 232 In-

vestigation on Petroleum Imports)...

Department of the Treasury—Report of coeastiontion of

Effect of Petroleum Imports and Petroleum Products on

the National Security Pursuant to Section 232 of the Trade

Expansion Act, as Amended | .

Memorandum for the Assistant ete MacDonald (Re-

quest for Section 232 Investigation) ... sisi (jt jn

Memorandum for the Assistant Secretary of | the Suess

ene, Cons and Tariff Affairs) cmany 9,

Memorandum for the ete of the Que (Section 232

Investigation of Petroleum Imports—January 10, 1975) .

Memorandum to David R. MacDonald, Assistant Ruste

(Enforcement, Operations and Tariff Affairs—Section 232

Investigation on Petroleum Imports) -

Letter from the Office of the Attorney General to the Hen-

orable William E. Simon, —— of the hemmed dated

January 14, 1975...

Affidavit of Wassily Leontief .

Opposition to Motion for Dedinteesy | , Inj ti

February 14, 1975) ; ——e Pied

Affidavit of William E. Sinee—Desnetane of the Sasa.

Affidavit of Russell W. Peterson—Chairman of the Council

on Environmental Quality (CEQ) saiaaak

Affidavit of Kenneth R. Seatent>—Aenetete A Assistant Ad-

ministrator for Environmental Programs of the Federal

Energy Administration (FEA)

Affidavit of Eric R. Zausner—dAssistant Administrator a“

— Federai Energy Administration (FEA) for 7 and

RECON RE AS eS SR aes og LT Se

The President's 1975 State of the Union M

oo Eneray ion Message including

The Impact of the President's Proposed Energy and Eco-

nomics cenemeel on Net ante Costs to Consumers Sum-

157

Total Energy Costs ...............----------c-c-ececcecnceseeeeceesnsnennennsnennsnnnnens

Plaintiffs’ Motion for Consolidation of Hearings on Prelimi-

nary Injunctions and Merits and for Entry of a

Conclusions of Law and Judgment ....................-.s--eeee

Order—Filed March 11, 19765 ........-----------------::sccesceeeeseeenennennnens

Notification of Filing of a Petition for Review of an aoe

of the Federal Energy Administration—No. 75-1206—

Filed February 27, 1975 ............-..--<----ee-seeseseeeeeseenecennnnnanens

Notification of Filing of a Petition for Review of an Order

of the Federal Energy Administration—No. 75-1202—

Filed February 27, 1975 .................. Ree ee ee re

Motion for Stay of Mandate Pursuant to — 41(b) of che

Federal Rules of Appellate Procedure .....................---.---

Affidavit of Eric R. Zausner—Deputy Administrator of the

Federal Energy Administration (FEA) .........................-

Affidavit of Eric R. Zausner—Deputy Administrator of the

Federal Energy Administration (FEA) . -_

Motion to Modify Stay Order in Aid of Sunt s J Suid.

Affidavit in Support of Motion to Modify Stay Order ............

Appellees’ Opposition to Appellants’ Motion to Modify Stay

Order in Aid of Court’s Jurisdiction—Filed September 12,

eee

Motion to Amend Motion to Modify Stay in Aid of Court's

Jurisdiction—Filed September 29, 1975 ........................--.

Appellees’ Opposition to Appellants’ Motions to Amend Mo-

tion to Modify Stay in Aid of Court’s Jurisdiction and to

Reconsider Appellants’ Motion to Modify Stay in Aid of

Court’s Jurisdiction—Filed October 6, 1975 .......................

Ouder of August Bl, IGG ............-..-.--.---..--.--<-00.00--ceceensesssoeneenenes

Order denying Motion to Modify ....................... a eat eee

Order Granting Certiorari .........................--.---cccceecseceeeeeeeeneenr ees

345

351

375

RELEVANT DOCKET ENTRIES

PARTIES

COMMONWEALTH OF MASSACHUSETTS AND

MICHAEL S. DUKAKIS, GOVERNOR

STATE OF CONNECTICUT AND

ELLA GRASSO, GOVERNOR

STATE OF MAINE AND

JAMES B. LONGLEY, GOVERNOR

STATE OF NEW JERSEY AND

BRENDAN T. BYRNE, GOVERNOR

STATE OF NEW YORK AND

HuGH CAREY, GOVERNOR

COMMONWEALTH OF PENNSYLVANIA AND

MILTON J. SHAPP, GOVERNOR

STATE OF RHODE ISLAND AND

PHILIP W. NOEL, GOVERNOR

STATE OF VERMONT AND

THOMAS P. SALMON, GOVERNOR

STATE OF MINNESOTA

1. WILLIAM E. SIMON,

Secretary of the Treasury of the

United States

2. FRANK G. ZARB,

Administrator of the Federal

Energy Administration

DATE NR. PROCEEDINGS

1975

Jan. 27 COMPLAINT, appearance. #1, A.G. ser 1-29-

75; D.A. ser 1-28-75; #2 ser 1-31-75.

(1)

—_—— --

DATE NR. PROCEEDINGS

Feb. 3 MOTION by pltff for preliminary injunction;

P & A’s; affidavits (2); Exhibits A, B and C;

affidavit of Michael S. Dukakis; affidavit of John

R. Buckley; table 1 and 2; affidavit of Paul F. Levy;

table A, B and C; affidavit of Wessily Leontief; af-

fidavit of Evelyn F. Murphy; affidavit of the Hon-

orable James B. Longley; affidavit of Timothy P.

Wilson; affidavit of Donaldson Koons; affidavit of

Otto W. Siebert; table 1; affidavit of Brendan T.

Byrne; affidavit of Clifford A. Goldman; affidavit

of Joseph A. Hoffman; affidavit of Almerin C. 0O’-

Hara, Exhibit 1, 2 and 3; affidavit of Terence P.

Curran; affidavit of William Elgin; affidavit of Al-

bert E. Smigel; Exhibit A and B; affidavit of J.

Joseph Garrahy; request for oral hearing; ¢/s 2-3-75.

Feb. 6 AFFIDAVIT of Ella T. Grasso, Governor, in

support of motion for a Preliminary Injunction.

Feb. 6 AFFIDAVIT of George J. Conkling in support

of motion for a Preliminary Injunction.

Feb. 6 AFFIDAVIT of Richard M. Stewart.

Feb. 6 AFFIDAVIT of Lynn Alan Brooks.

Feb. 6 AFFIDAVIT of Ralph E. Reuss.

Feb. 12 NOTICE and Motion by State of Minnesota,

by Wendell R. Anderson, its Governor for leave to

intervene as a pltff.; P & A’s; Exhibit; ¢/b 2-10-75.

$5.00 paid and credited to U.S.

Feb. 12 ORDER granting motion of pltff. to consolidate

with C.A. 75-0129, consolidated hearing on motions

for preliminary injunction set for February 21, 1975.

(N) (Original filed in C.A. 75-0130)

Pratt, J.

Feb. 13 MOTION of State of Minnesota to intervene as

pltff, granted. (fiat) (N).

Pratt, J.

———— et

DATE NR. PROCEEDINGS

Feb. 14 COMPLAINT by intervenor State of Min-

nesota.

Feb. 14 OPPOSITION by deft. to motion for prelimi-

nary injunction; P & A’s; affidavit of William E.

Simon; affidavit of Russell W. Peterson; affidavit of

Kenneth R. Woodcock with attachments A and B;

affidavit of Eric R. Zausner with attachments A,

B, C, D, E, F, G, H, I and J; ¢/m 2-14-75.

Feb. 14 AFFIDAVIT of Hugh L. Carey in support of

motion of State of New York for preliminary in-

junction; ¢/m 2-13-75.

Feb. 14 AFFIDAVIT of Thomas P. Salmon in support

of motion of State of Vermont for preliminary in-

junction; ¢/m 2-13-75.

Feb. 14 AFFIDAVIT of Wayne P. Calderara, Sr., in

support of motion of State of Vermont for pre-

liminary injunction; ¢/m 2-13-75.

Feb. 14 AFFIDAVIT of Forrest E. Orr for support of

motion of State of Vermont for preliminary injrinc-

tion; ¢/m 2-13-75.

Feb. 14 APPEARANCE of James S. Hostetler for the

plitff. Cal/N.

Feb. 14 NOTICE and motion by pltff-intervenor State

of Minnesota for preliminary injunction; P & A’s;

affidavit of Hon. Wendell R. Anderson; affidavit of

Dr. James E. Carter; ¢/m 2-13-75.

Feb. 19 SUPPLEMENTAL memorandum of P & A’s;

in support of defts’ opposition to the motion for

preliminary injunction; ¢/m 2-19-75.

Feb. 20 SUPPLEMENTAL Statement of points and

authorities on the preliminary injunction by pltff.

Feb. 21 MOTIONS of pltffs for preliminary injunction,

heard and denied. (Rep: Richard Mattson)

Pratt, J.

DATE NR. PROCEEDINGS

Feb. 21 FINDINGS of fact and conclusions of law and

Order denying pltffs. motions for preliminary in-

junction. (N) Pratt, J.

Mar. 03 NOTICE of appeal by plitffs from Order of

February 21, 1975. $5.00 paid and credited to U.S.

Copy mailed to Stanley D. Rose; U.S. Atty.

Mar. 03 COST bond on appeal by pltff. in sum of Two

hundred fifty dollars with Northwestern National

Insurance Co. of Milwaukee, Wisconsin, approved.

Mar. 07 MOTION by pltffs for consolidation of hear-

ings on preliminary injunctions and merits and for

entry of findings, conclusions of law and judgment;

c/m 3-7-75.

Mar. 11 ORDER granting motion of pltff to treat hear-

ing on preliminary injunction as hearing on the

merits and the Findings of Fact and Conclusions of

Law and Order of 2-21-75, shall constitute the

Court’s final Judgment. (N) Pratt, J.

Mar. 13 TRANSCRIPT of Proceedings, February 21,

1975; Rep: Richard L. Mattson; Court Copy.

Mar. 13 MOTION by plitff for withdrawal of notice of

appeal from order denying motions for preliminary

injunction and for leave to have the bond filed with

said notice of appeal applied to pltffs’ appeal from

the final judgment in the case; ¢/m 3-12-75.

Mar. 13 NOTICE of appeal by pitff from final judg-

ment entered March 11, 1975. Copy mailed to

Stanley D. Rose, Dept. of Justice.

Mar. 20 ORDER granting pltffs’ motion to withdraw

their notice of appeal from order of 2-21-75; bond

for costs filed with pltffs’ notice of appeal from

order of 2-21-75 be applied to pltffs’ appeal of 3-11-

75. (N) (signed 3-19-75) Pratt, J.

DATE NR. PROCEEDINGS

Mar. 25 PRELIMINARY record on appeal delivered to

-U.S.C.A.; receipt acknowledged (75-1281)

Apr. 8 RECORD on Appeal delivered to U.S.C.A.; re-

ceipt acknowledged.

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

75-1281

DATE FILINGS—PROCEEDINGS :

Transcripts)

(K)3-24-75 4-Appellant’s motion for expedited briefing

schedule, advancement of hearing and leave to file

xerox brief (m-24)

(K)4-2-75 4-Appellee’s opposition to motion for ex-

pedited briefing schedule and response to motions

for consolidation, advancement of hearing and leave

to file xeroxed briefs and leave to file brief in excess

of page limitation (Ok RB) (m-2) (only in 75-

1282)

(K)4-8-75 Certified Original Record (1 vol. of tran-

script) (two volumes of original record)

(R)4-18-75 Per Curiam order that nos. 75-1202, 75-

1206, 75-1281 and 75-1282 are consolidated for con-

sideration on the merits; the motions for leave to

file briefs in excess of page limitations are denied;

the motion to expedite briefing schedule is granted

except to the extent that it would direct that the

Government’s brief be filed less than 30 days from

the date appellant’s-petitioner’s briefs are filed; the

. motion for advancement of hearing is denied without

~ prejudice to renewal should circumstances change to

warrant it; Tamm and Wilkey, CJ

hearing (p-2)

tee

—

———————

~ DATE FILINGS—PROCEEDINGS

(K)6-26-75 Per Curiam order granting appellants’ mo-

tion for advancement of hearing; the Clerk is di-

rected to schedule this case for oral argument as

soon as the business of the Court permits; Counsel

will be promptly notified of the scheduling of oral

argument; Tamm and Wilkey, CJ -

(R)6-27-75 Clerk’s order sua sponte, that oral argu-

ment in case nos. 75-1202, 75-1281 and 75-1282 will

be held on Monday, July 14, 1975 at 10:00 A.M. in

the Courtroom of the U.S. Court of Appeals for the |

District of Columbia Circuit, Fifth Floor, U.S.

Courthouse, Washington, D.C.

(R)7-14-75 Argued before Tamm, Leventhal and Robb,

CJ.

8-11-75 Opinion for the Court filed by Circuit Judge

Tamm. (IN XEROX FORM)

8-11-75 Dissenting opinion filed by Circuit Judge Robb.

8-11-75 Judgment reversing and remanding cases with

instructions to enter appropriate relief for appel-

lants. (n)

(K)8-11-75 4-Appellant’s motion for shortening from 21

to 10 days time within which mandate will issue

(p-11)

(K) 8-15-75 4-Appellees’ opposition to motion for short-

ening from 21 to 10 days within which mandate

will issue (p-15)

(K)8-15-75 4-Appellees’ motion for stay of mandate

pursuant to Rule 41(b) (p-15)

(G)8-18-75 4-Appellants’ opposition to motion for stay

of mandate (p-18)

to motion to stay mandate (p-19)

Fe — —2

DATE — FILINGS—PROCEEDINGS

(R) 8-21-75 Per Curiam order that the motion for short-

ening time to issue mandate is denied; and the mo-

tion for stay of mandate is granted and the Clerk

is directed to stay the issuance of the certified copy

of this Court’s judgment to September 15th; Tamm,

Leventhal and Robb, CJ

(K)8-29-75 4-Appellants’ motion to modify stay order

in aid of court’s jurisdiction (p-29)

(K)9-2-75 4-Appellees’ (FEA, et al) motion to extend

time to respond to motion to modify stay order (p-

2) to September 12th

one Printed copies of opinion of 8-11-75 issued this

ate.

(K)9-11-75 Per Curiam order granting appellees’ mo-

tion to extend time to respond to motion to modify

stay order to September 12, 1975; Tamm, Leventhal

and Robb CJ

(G) 9-11-75 Letter from appellees’ advising that a writ

of certiorari was filed on 9/10/75

(G)9-12-75 4-Appellees’ opposition to motion to modify

stay order in aid of court’s jurisdiction (m-12)

(G)9-17-75 Notice of filing petition for certiorari in

Supreme Court No. 75-382 on September 15, 1975

(G)9-17-75 4-Appellants’ reply to opposition to motion

to modify stay order in aid of court’s jurisdiction

(m-17)

(R)9-29-75 Per Curiam order that the motion of pe-

titioners-appellants’ to modify stay order in aid of

the Court’s jurisdiction is denied; Tamm, Leventhal

and Robb, CJ

(R)9-29-75 Certified copy of the above order sent to

ae U.S. Distriet Court and a copy sent to Judge

ratt

~ DATE FILINGS—PROCEEDINGS

*(C)9-24-75 4-Appellee’s supplemental response to ap-

pellants’ motion to modify stay order {m-23) (Per

RB)

modify stay in aid of Court’s jurisdiction (p-29)

Court’s order of Sept. 29 denying motion to modify

stay order in aid of the Court’s jurisdiction (p-29)

(G)10-6-75 4-Appellees’ opposition to motion to amend

motion to modify stay in aid of court’s jurisdiction

and to reconsider motion to modify stay in aid of

court’s jurisdiction {m-6)

(K)10-9-75 Per Curiam order that appellants’ motion

to amend motion to modify stay in aid of Court's

jurisdiction is granted, and, that appellants’ motion

for reconsideration is denied; Tamm, Leventhal and

Robb CJ

(K)10-9-75 Certified copy of the above order sent to

Clerk, U.S. District Court and a copy to Judge

Pratt

(G)11-10-75 Certified copy of order of Supreme Court

granting certiorari in S.C. No. 75-382 on November

3, 1975

ALGONQUIN SNG, INC.

NEW ENGLAND POWER COMPANY

NEW BEDFORD GAS AND EDISON LIGHT COMPANY

CAMBRIDGE ELECTRIC LIGHT COMPANY

CANAL ELECTRIC COMPANY

MONTAUP ELECTRIC COMPANY

THE CONNECTICUT LIGHT AND POWER COMPANY

THE HARTFORD ELECTRIC LIGHT COMPANY

WESTERN MASSACHUSETTS ELECTRIC COMPANY

HOLYOKE WATER POWER COMPANY

ROBERT DRINAN

STATE OF MINNESOTA

v8.

1. WILLIAM E. SIMON

Secretary of the Treasury

2. FRANK G. ZARB

Administrator, Federal Energy

Administration

3. FRANCINE NEFF

Treasurer of the United States

DATE NR.

1975

Jan. 27 COMPLAINT, appearance. #2 ser 1-31-75.

D.A. ser 1-28-75; #1, #3 & A.G. ser 1-29-75.

Feb. 3 MOTION by pltffs. for preliminary injunction;

P & A’s; table of cases; statement; affidavits (8);

request for oral hearing; ¢/s 2/3/75.

Feb. 5 MOTION by pltfs. to consolidate with C.A. 75-

0129; P&A’s; c/s 2-5-75.

Feb. 12 ORDER granting motion of pltff to consolidate

with C.A. 75-0129, consolidated hearing on motions

for preliminary injunction set for February 21,

1975. (N) Pratt, J.

PROCEEDINGS

oe’

DATE NR. PROCEEDINGS

1975

Feb. 21 - MOTIONS of pltffs. for preliminary injunc-

’ tion, heard and denied. (Rep: Richard mg

ra :

Feb. 21 FINDINGS of Fact and conclusions of law and

Order denying pltffs. motions for preliminary in-

junction. (N) Fratt, J.

Mar. 8 NOTICE of Appeal by pltff from Order entered

February 21, 1975. $5.00 paid and credited to U.S.

Copy mailed to U.S. Atty.

Mar. 7 COPY of Motion by pltff for consolidation of

hearings on preliminary injunctions and merits and

for entry of findings, conclusions of law and judg-

ment; ¢/m 3-7-75.

Mar. 11 ORDER granting motion of pltff to treat hear-

ing on preliminary injunction as hearing on the

merits and the Findings of Fact, Conclusions of Law

and Order of 2-21-75, shall constitute the Court’s

final judgment. (N) Pratt, J.

Mar. 13 TRANSCRIPT of proceedings, February 21,

1975; Rep: Richard L. Mattson; Court Copy. (Filed

in C.A. 75-0129)

Mar. 13 NOTICE of appeal by pltff from Order entered

March 11, 1975. Copy mailed to U.S. Atty.

Mar. 13 COST bond on appeal by pitff in the sum of

Two Hundred fifty dollars cash, approved.

Mar. 25 PRELIMINARY record on appeal delivered to

U.S.C.A.; receipt acknowledged (75-1282)

Apr. 8 RECORD on Appeal delivered to U.S.C.A.; re-

ceipt acknowledged.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 75-1282

DATE FILINGS—PROCEEDINGS

Transcripts)

(K)3-24-75 4-Appellants’ motion to consolidate case

with #75-1281, #75-1202, #75-1206 (OkRB)

(K)3-24-75 4-Appellants’ motion for expedited briefing

schedule, advancement of hearing and leave to file

brief in xerox form (OK RB) (m-24)

(K)4-2-75 4-Appellee’s opposition to motion for expe-

dited briefing schedule and response to motions for

consolidation, advancement of hearing and leave to

file xeroxed briefs and leave to file brief in excess

of page limitation (Ok RB) (m-2)

(K)4-8-75 Certified Original Record (no transcript) in-

cluding 2 volumes of pleadings

(R)4-18-75 Per Curiam order that nos. 75-1202, 75-

1206 and 75-1281, and 75-1282 are consolidated for

consideration on the merits; the motions for leave

to file briefs in excess of page limitations are de-

nied; the motion to expedite briefing schedule is

granted except to the extent that it would direct

that the Government’s brief be filed less than 30

days from the date appellant’s-petitioner’s briefs are

filed; the motion for advancement of hearing is de-

nied without prejudice to renewal should circum-

stances change to warrant it; Tamm and Wilkey, CJ

(K) 8-29-75 4-Appellants’ motion to modify stay order

in aid of court’s jurisdiction (p-29)

(K)9-2-75 4-Appellees (FEA, et al) motion to extend

time to respond to motion to modify stay order to

September 12th (p-2)

oS eaGaCjCNT{TN_N—aqoos

DATE FILINGS—PROCEEDINGS

9-11-75 Printed copies of opinion of 9-11-75 issued

this date.

(K)9-11-75 Per Curiam order granting appellees’ mo-

tion to extend time to respond to motion to medify

stay order to September 12, 1975; Tamm, Leventhal

and Robb CJ

9-11-75(G) Letter from appellees advising that a writ

of certiorari was filed on 9/10/75

(G)9-12-75 4-Appellees’ opposition to motion to modify

stay order in aid of court’s jurisdiction (m-12)

(G)9-17-75. Notice of filing petition for certiorari in

Supreme Court No. 75-382 on September 15, 1975

(G)9-17-75 4-Appellants’ reply to opposition to motion

to modify stay order in aid of court’s jurisdiction

(m-17)

(R)9-29-75 Per Curiam order that the motion of peti-

tioners-appellants to modify stay order in aid of the

Court’s jurisdiction is denied; Tamm, Leventhal and

Robb, CJ |

(R)9-29-75 Certified copy of the above order sent to

Clerk, U.S. District Court and a copy sent to Judge

Pratt

*(C)9-24-75 4-Appellee’s’ supplemental response to ap-

pellants’ motion to modify stay order (m-23) (Per

RB)

modify stay in aid of Court’s jurisdiction (p-29)

Court’s order of Sept. 29 denying motion to modify

stay order in aid of the Court’s jurisdiction (p-29)

DATE FILINGS—PROCEEDINGS

(G)10-6-75 4-Appellees’ opposition to motion to amend

motion to modify stay in aid of court’s jurisdiction

and to reconsider motion to modify stay in aid of

court’s jurisdiction (m-6)

(K)10-9-75 Per Curiam order that appellants’ motion

to amend motion to modify stay in aid of Court’s

jurisdiction is granted and, that appellants’ motion

for reconsideration is denied; Tamm, Leventhal and

Robb CJ

(K)10-9-75 Certified copy of the above order sent to

Clerk, U.S. District Court and a copy sent to Judge

Pratt

(G)11-10-75 Certified copy of order of Supreme Court

granting certiorari in S.C. No. 75-382 on November

3, 1975

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 75-1206

COMMONWEALTH OF MASSACHUSETTS and

MICHAEL S. DUKAKIS, Governor, ET AL.,

PETITIONERS

Vv.

FEDERAL ENERGY ADMINISTRATION, RESPONDENT

DATE FILINGS—PROCEEDINGS

(L) 2-27-75 4-Petitioners’ petition for review of an

order of the FEA

(L) 2-28-75 Certified copy of a petition for review of.

an order of the FEA was mailed to FEA

(R)4-18-75 Per Curiam order that nos. 75-1202, 75-

1206, 75-1281 and 75-1282 are consolidated for con-

sideration on the merits; the motions for leave to

file briefs in excess of page limitations are denied;

the motion to expedite briefing schedule is granted

except to the extent that it would direct that the

Government’s brief be filed less than 30 days from

the date appellant’s-petitioner’s briefs are filed; the

motion for advancement of hearing is denied with-

out prejudice to renewal should circumstances change

to warrant it; Tamm and Wilkey, CJ

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 75-1202

ALGONQUIN SNG, INC., ET AL., PETITIONERS

Vv.

FEDERAL ENERGY ADMINISTRATION, RESPONDENT

DATE FILINGS—PROCEEDINGS

(L)2-27-75 4-Petitioners’ petition for review of an

order of the FEA

(L)2-28-75 Certified copy of Petition for Review of an

order of the FEA was mailed to FEA

(R)4-18-75 Per Curiam order that nos. 75-1202, 75-

1206, 75-1281 and 75-1282 are consolidated for con-

sideration on the merits; the motions for leave to

file briefs in excess of page limitations are denied;

the motion to expedite briefing schedule is granted

except to the extent that it would direct that the

Government’s brief be filed less than 30 days from

the date appellant’s-petitioner’s briefs are filed; the

motion for advancement of hearing is denied with-

out prejudice to renewal should circumstances change

to warrant it; Tamm and Wilkey, CJ

Nill wt ad ee _—

COMPLAINT FOR INJUNCTIVE RELIEF,

DECLARATORY JUDGMENT. AND MANDAMUS

(Filed January 27, 1975)

COMMONWEALTH OF MASSACHUSETTS AND

MICHAEL S. DUKAKIS, Governor,

Office of the Attorney General

State House

Boston, Massachusetts, 02133

Telephone 617-727-2200

and

STATE OF CONNECTICUT AND

ELLA Grasso, Governor,

Office of the Attorney General

30 Trinity Street

Hartford, Connecticut

Telephone 203-566-3579

and

STATE OF MAINE AND

JAMES B. LANGLEY, Governor

Office of the Attorney General

State House

Augusta, Maine, 04330

Telephone 207-289-3361

and

STATE OF NEW JERSEY AND

BRENDAN T. BYRNE, Governor

Office of the Governor’s Counsel

State House

Trenton, New Jersey 08625

Telephone 609-292-7400

and

STATE OF NEW YORK AND

HUGH CAREY, Governor

Office of the Attorney General

The Capitol

Albany, New York 12224

Telephone 518-474-8101

and

COMMONWEALTH OF PENNSYLVINIA AND

MILTON J. SHAPP, Governor

State Capital Annex

Harrisburg, Pennsylvania 17120

Telephone 717-787-3391

and

STATE OF RHODE ISLAND AND

Puitiep W, NoeL, Governor

Office of the Attorney General

Providence County Court House

Providence, Rhode Island

Telephone 401-831-6850

and

STATE OF VERMONT AND

THOMAS P, SALMON, Governor

Office of the Attorney General

¢ o Pavilion Office Building

109 State Street

Montpelier, Vermont 05602

Telephone 802-828-3171

PLAINTIFFS

Vv.

WILLIAM E, SIMON,

Secretary of the Treasury of the

United States

Washington, D.C, 20220

and

FRANK G, ZARB,

Administrator of the

Federal Energy Administration

Washington, D.C,

DEFENDANTS

INTRODUCTORY STATEMENT

1, This is a civil action seeking to enjoin Defendants’

execution of a new system of oil import license fees in-

stituted by the Presidential Proclamation of January 28,

1975 Modifying Proclamation No, 8279 and seeking de-

claratory judgment of the invalidity of the same Presi-

dential Proclamation, Plaintiffs seek relief essentially

on the grounds that (1) the Proclamation asserts power

beyond any statutory authority conferred by Congress;

(2) the Proclamation violates the requirements for hear-

ing, notice, investigation, and recommendations of the

very statute under which it purports to act, Section 282

of the Trade Expansion Act of 1962, as amended Section

127(d) of the Trade Act of 1974, 19 U.S.C. 1862; and

(3) the Proclamation violates the requirements of the

National Environmental Policy Act (NEPA), 42 U.S.C,

$§ 4821 et ye by Defendants’ failure to prepare a con-

sidered and detailed environmental impact statement of

the effects of the Proclamation,

SUBJECT MATTER JURISDICTION

2. The jurisdiction of this Court is provided by U.S.C.

§ 1831 (federal question); 28 U.S.C, § 1887 (regulation

of interstate commerce) ; 28 U.S.C. § 1861 (action in the

nature of mandamus); 28 U.S.C, § 2201-02 (declaratory

judgment) ; 42 U.S.C, §§ 4821 et seg. (National Environ-

mental Policy Act); and 5 U.S.C, §§ 701-06 (Adminis-

trative Procedure Act), The amount in controversy ex-

ceeds $10,000, exclusive of interest and costs,

PARTIES

8. Plaintiffs, all of whom will be gravely and ir-

reparably injured by the actions complained of herein,

are as follows:

a, The Commonwealth of Massachusetts is a sovereign

state of the United States of America, The Common-

wealth of Massachusetts is a major consumer of imported

petroleum and petroleum products and derivative energy

products in the performance of its many governmental

and proprietary functions and is a collector of revenues

cased u sales of petroleum.

b. Michael 8. Dukakis is Governor of the Common-

wealth of Massachusetts and is a consumer of petroleum

products,

c. The State of Connecticut is a state of the United

States and sues on behalf of itself, as it has responsibility

for the health, safety and welfare of persons within its

borders, as a user of petroleum products, as a collector of

revenues based upon sales of petroleum products within

ite borders and as parens patriae on behalf of persons

within its borders who have been and will be harmed by

the wrongful acts of the Defendants.

d. Ella Grasso is Governor of the State of Con-

necticut and is a consumer of petroleum products,

e. Plaintiff State of Maine is a state of the United

States and, by Joseph E. Brennan, its Attorney Gen-

eral, sues on behalf of itself, as it has responsibility for

the health, safety and welfare of persons within its

borders, as a user of petroleum products, as a collector of

revenues based upon sales of petroleum products within

its borders, and as parens patriae on behalf of persons

within its borders who have been and will be harmed by

the wrongful acts of the Defendants,

f. James B. Longley is Governor of the State of

Maine and is a consumer of petroleum products,

g. Plaintiff State of New Jersey is a state of the

United States and sues on behalf of itself, as it has re

sponsibility for the health, safety and welfare of per-

sons within its borders, as a user of petroleum products,

as a collector of revenues based upon sales of petroleum

products within its borders, and as parens patriae on

half of persons within its borders who have been and

will be harmed by the wrongful acts of the Defendants,

h. Brendan T,. Byrne is Governor of the State of New

Jersey and is a consumer of petroleum products,

i, The State of New York is a sovereign state of the

United States, with its capital and principal offices lo-

cated in Albany, Albany County, New York, New York

brings this action (a) on its own behalf as a sovereign

state and in its proprietary capacity as a consumer of

petroleum products, (b) as representative for its local

political subdivisions and (¢c) as parens patriae for its

citizens and persons within ite borders who have been

and will be harmed by the wrongful acts of Defendants.

j. Hugh Carey is Governor of the State of New York

and is a consumer of petroleum products,

k. The Commonwealth of Pennsylvania is a state of

the United States and sues on behalf of itself, as it has

responsibility for the health, safety and welfare of per-

sons within ita borders, as a user of petroleum products,

as a collector of revenues based upon sales of petroleum

or within its borders, and as parens patriae on

half of persons within its borders who have been and

will be harmed by the wrongful acts of the Defendants,

l, Milton J, ar is Governor of the Commonwealth

of Pennsylvania and is a consumer of petroleum prod-

ucts,

m. The State of Rhode Island and Providence Plan-

tations is a state of the United States and sues as a

sovereign state, on behalf of itself, as it has responsibility

for the health, safety and welfare of persons and citizens

within its borders, as a user of petroleum products,

as a collector of revenues based upon sales of petroleum

products within its borders and for and on behalf of

persons and citizens within its borders who have been

and will be harmed by the wrongful acts of the De-

fendanta,

n. Philip W. Noel is Governor of the State of Rhode

Island and is a consumer of petroleum products,

o. The State of Vermont is a state of the United

States and sues on behalf of itself, as it has responsibility

for the health, safety and welfare of persons within its

borders, as a user of petroleum products, as a collector

of revenues based upon sales of petroleum products

within its borders, and as parens patriae on behalf of

yersons within ita borders who have been and will be

ew by the wrongful acts of the Defendants.

p. Thomas P, Salmon is Governor of the State of

Vermont and is a consumer of petroleum products,

4. Defendant William E, Simon is Secretary of the

Treasury of the United States. The Secretary of the

Treasury is the administrative official most responsible

for the actions challenged herein, including (a) prepara-

tion of the findings under Section 282 of the Trade

Reform Act of 1974 upon which the challenged Procla-

mation is based and (b) general responsibility under the

Proclamation for administration of the new oil import

fee system and evaluation of its impact upon the

economy.

5, Defendant Frank G. Zarb is Administrator of the

Federal Energy Administration (hereafter the Admin-

istrator), Washington, District of Columbia, Under See-

tion I of the Proclamation of January 23, 1975, the

Administrator, as of February 1, 1975, is charged with

the duty to issue allocations and licenses subject to fees

as scheduled in the Proclamation on imports of crude

oll, unfinished oils, and finished products, Under See-

tion 2 of the Proclamation of January 23, 1975, the

Administrator is charged with the duty to hold all such

import license fees in a suspense account, from which

he may draw for the repayment of certain refundable

license fees, Also under Section 2 of the Proclamation

of January 28, 1975, the Administrator is charged with

the duty to deposit in the Treasury of the United States

at the end of each fiscal year those balances remaining

in the suapense account and not required to be reserved

for license fee refunds,

6, Defendants Simon and Zarb are sued in their of-

ficial capacities and any successors to their official posi-

tions are also sued herein,

STATEMENT OF FACTS

A. The Trade Legislation and Executive Proclamation,

7. The statutory source of the Mandatory Oil Import

Program was a portion of the Trade Expansion Act,

namely, 19 U.S.C, §1862(b), That section (as most re-

cently amended by the Trade Act of 1974 (Pub,L.93-

618)) provides as follows:

“(b) Upon request of the head of any department

or agency, upon application of an interested party,

or on his own motion the Secretary of the Treasu

(hereinafter referred to as the “Secretary”) shall

immediately make an appropriate investigation in

the course of which he shall seek information and

advice from, and shall consult with, the Secretary

of Defense, the Secretary of Commerce, and other

appropriate officers of the United States, to deter-

mine the effects on the national security of imports

of the article which is the subject of such request,

application, or motion, The Secretary shall, if it is

appropriate and after reasonable notice, hold public

hearings or otherwise afford interested parties an

opportunity to present information and advice rele-

vant to such investigation, The Secretary shall re-

port the findings of his investigation under this

subsection with respect to the effect of the importa-

tion of such quantities or under such circumstances

upon the national security and, based on such find-

ings, his recommendation for action or inaction un-

der this section to the President within one year

after receiving an application from an interested

party or otherwise beginning an investigation under

this subsection, If the Secretary finds that such arti-

cle is being imported into the United States in such

quantities or under such cireumstances as to threaten

or impair the national security, he shall so advise

the President and the President shall take such

action, and for such time as he deems necessary to

adjust the imports of such article and ite derivatives

so that such imports will not impair the national

security, unless the President determines that the

article is not being imported into the United States

in such quantities or under such circumstances as to

threaten or impair the national security,”

8 The forerunner of the above-quoted section was

originally passed as section 7 of the Trade Agreements

Extension Act of 1955 (69 Stat. 166 (1959)) and was

amended by section 8 of the Trade Agreements Extension

Act of 1958 (72 Stat. 678 (1958)). A minor amendment

was made when the statute was incorporated into the

Trade Expansion Act of 1962, 19 U.S.C, 1862, The last

amendments were made in the Trade Act of 1974 (Public

Law 93-618, effective Jan, 3, 1975),

9. Despite many changes of form, the essential powers

given the President have remained the same—namely to

take action to adjust + ae in the interests of national

security. Section 1862(b) confers no power to impose

duties or licenses subject to a fee, To the contrary, any

assertion of tariff power or action in the nature of tariff

is controlled by the Tariff Act of 1980, 19 U.S.C, 1202

et seq., the Trade Expansion Act of 1962, and various

sections of the Trade Act of 1974, These acts contain

detailed procedures and provide explicit limitations for

any action in the nature of tariff, the purpose of Sec-

tion 1862(b) being to provide a different system of

direct import quotas to be used in special, narrowly

defined circumstances occasioned by the interests of na-

tional security.

10. The President administered § 1862(b) for eighteen

years without ever claiming that it included a power to

exact duties or license fees, Specifically, in 1959, Presi-

dent Eisenhower moved to limit imports of petroleum

and petroleum products to this country by the promulga-

tion of Proclamation No, 3279, (Text appears in annota-

tions to 19 U.S.C, A. §1862) Said Proclamation pro-

ceeded essentially by way of quota and was clearly within

the wording of Section 1862 to “adjust imports.” It set

up a licensing system and provided that no imports of

troleum and petroleum produc» could be made except

y issuance of a license by the Secretary of the Interior.

It provided for determination by the Secretary of the

levela of oil to be imported and for allocations by the

Secretary of the amounts so permitted to be imported

into various defined Districts and prescribed a maximum

level of allocation for such districts, The Secretary was

authorized to issue regulations by which import licenses

were to be issued, Heavy reliance for such licenses was

based upon the base period by applicants’ use of petro-

leum and petroleum products, Accordingly, the Secretary

issued implementing regulations called Oil Import Regula-

tion 32A C.F.R. Ch.X, which is still the governing regu-

lation in this area.

11. The Mandatory Oil Import Program, though

amended from time to time, continued in substantially

the same form for a period of fourteen years, at which

time shortages of oil in this country actuated President

Nixon to remove license restrictions on petroleum and

petroleum products in Exec. Proc. 4210 (text appears in

annotations to 19 U.S.C.A. Sec. 1862). Under this procla-

mation, promulgated in April, 1973, a license was still

required to import petroleum or petroleum products, but

instead of basing such license rights on such factors as

base period, any party was allowed to obtain a license.

However, the President, for the first time, provided for a

fee for such imports in accordance with detailed sched-

ule, and a schedule of increase of such fees was also

included.

12. On January 23, 1975, President Ford by Procla-

mation purported to institute a system of constraint on

the import of oi] based on the imposition of licenses sub-

ject to a fee, per barrel of oil. This “fee” would be $1.00

per barrel for vil and its products entered into the cus-

toms territory of the United States during the month of

February 1975, $2.00 per barrel on imports entered

during the month of March 1975, and $3.00 on imports

entered on and after April 1, 1975. In addition, the

Proclamation provided for certain rebates of portions of

said “license fees,’ based on historic entitlements under

ee relating to the imports and the allocation

13. Here again, the President did not pretend to treat

the fees to be charged as duties under the Tariff Act of

1930. However, the Nixon and Ford two tier fee system,

has created the largest monetary exaction in respect to

imports in the history of the United States. All this

monetary regulation has been imposed as an assertion of

power under the authority to “adjust imports” contained

in 19 U.S.C. Sec. 1862.

B. Economic Injury to the Commonwealth of Massa-

chusetts

14. The execution of the Proclamation of January 23,

1975, will drastically increase the cost of imported crude

oil and derivative energy products to the Commonwealth

of Massachusetts, which is dependent upon imported

crude oil for virtually all its energy requirements.

15. Direct energy costs to the state government as a

consumer and proprietor would increase annually by over

2.7 million dollars. Moreover, the reduction of Massachu-

setts’ gross state product would result in an annual re-

duction of state tax revenues in excess of 13.4 million

dollars. The aggregate annual loss to the state budget,

so far as measurable, will exceed 16.1 million dollars.

16. To cope with this severe impact on its budget,

the Commonwealth will be forced either to increase taxes

by special legislation or curtail services to its citizens.

Either course of action will harm the Commonwealth ir-

reparably, beyond any adequate remedy at law.

17. The increase of taxes will aggravate the departure

of commerce and industry from the state and further

aggravate unemployment in the Commonwealth, which al-

ready has the highest unemployment rate among the 48

mainland states of the nation.

18. A reduction of services, especially of human serv-

ices to substantial segments of the population needful

and otherwise helpless (the aged, the young, the phys-

ically infirm, the mentally ill and retarded) works ir-

reparable harm since those services and benefits once lost

are beyond restoration end compensation to both the

Commonwealth and its citizens.

19. Further, the distribution of money damages, if

conceivably calculable and traceable to the state govern-

ment is a remedy of such complexity and duration as to

be realistically incalculable and beyond reparation by

any available remedies at law. Even if damages were

conceivably calculable and traceable to the state govern-

ment, the disruption to its legally mandated policies

in the economic regulatory affairs and in the provision

of human services outweigh any inconvenience caused by

delay to the defendants in the execution of the Proclama-

tion of January 23, 1975, challenged herein.

C. Injury to Other Plaintiffs

20. The other Plaintiff States will suffer substantial

economic injury in the sarie manner as alleged in para-

graphs 14-19, but in varying amounts.

21. The individual Plaintiff Governors will suffer dam-

age in the performance of their official duties as Chief

Executive Officers of their respective States, by reason

of their inability to implement previously adopted pro-

grams and will suffer economic damage as individual

consumers of petroleum products.

D. The Effect of the Proclamation Upon the Environ-

ment of the Plaintiff States

22. The implementation of the system of license fees

established pursuant to the Proclamation of January 23,

1975, is intended to reduce the quantity of foreign oil

imported into the United States by a substantial amount.

Reduction of imported oil will have a significant effect

upon the human development of the plaintiff states.

Specifically, the reduction directly restricts the supply

of low-sulphur oil, the principal sources of which are

Nigeria and Libya. Because sulphur oxides are a prin-

cipal source of air pollution, low sulphur oil is an

essential determinant of Plaintiff States’ ability to com-

ply with clean air standards under the Clean Air Act

of 1970 (42 U.S.C. §§ 1857 et seq.). That Act requires

the states to promulgate and implement state implementa-

tion — —— the objectives of the Act and the

regulations thereunder (42 U.S.C. §1 :

+ pron ty § 1857(c); 40 C.F.R.

_ 23. The import license fee program of the Proclama-

tion of January 23, 1975 is intended to and may well

have _the effect of stimulating domestic exploration, ex-

traction and processing of petroleum with significant ef-

fects on the human environment of Plaintiff States

including the foliowing:

(a) construction and alteration of oil refineries and

petrochemical plants, which are sources of air and water

pollution ;

(b) expanded off-shore oil drilling, with attendant in-

cidence of oil spillage and pollution; and

with consequent environmental damage.

24. The import license fee program is intended to

and may well have the effect of stimulating use of sources

of energy alternative to oil, with significant effects upon

the human environment of Plaintiff States, including the

following:

(a) proliferation of nuclear power plants, with at-

tendant risks of heat pollution and radiation pollution;

(b) stimulation of production of nuclear fuels ad-

versely affecting the environment;

companying damage to the environment; and

(d) inereased burning of coal, with consequent air pol-

lution from the production of sulphur oxides in con-

siderably greater quantity than would result from oil

or other fossil fuels.

25. The reduction in oil imports will also have a

direct effect upon transportation problems for both for-

eign and domestic oil, with significant effects upon the

human environment of Plaintiff States, including the

following:

(a) changes in domestic surface transportation pat-

terns increasing air and water pollution;

(b) changes in the level of oil tanker traffic increas-

ing the potential for oil pollution of coastal waters and

waterways.

26. There has been no public consideration, consulta-

tion or discussion of the environmental impact of the

Proclamation of January 23, 1975; there has been no

evaluation of alternatives to the proposed action of the

Proclamation; there has been no evaluation of the short-

term or long-term effects of the Proclamation.

27. The National Environmental Policy Act (NEPA)

became effective on January 1, 1970. P.S. 91-190, 83

Stat. 852, 42 U.S.C. §§ 4321 et seg. The purposes of

NEPA are, inter alia, “To declare a national policy

which will encourage productive and enjoyable harmony

between man and his environment; to promote efforts

which will prevent or eliminate damage to the environ-

ment and biosphere and stimulate the health and wel-

fare of man; to enrich the understanding of the eco-

logical systems and natural resources important to the

Nation. ... Section 2 of NEPA, 42 U.S.C. § 4821. Sec-

tion 101(a) of NEPA contains a congressional declaration

“that it is the continuing policy of the Federal Govern-

ment . . . to use all practicable means and measures...

to create and maintain conditions under which man and

nature can exist in productive harmony... .” Secti

101(b) states: ? =

{ijn order to carry out the policy set forth in

this chapter, it is the continuing responsibility of

the Federal Government to use all practical means,

consistent with other essential considerations of na-

tional policy, to improve and coordinate Federal

plans, functions, programs, and resources to the end

that the Nation may ... (8) attain the widest

range of beneficial uses of the environment without

degredation, risk to health or safety, or other un-

desirable consequences .. .

28. To effectuate the Act’s policies, section 102(1) of

NEPA directs that “to the fullest extent possible .. .

the policies, regulations, and public laws of the United

States shall be interpreted and administered in accord-

ance with the policies set forth in this chapter... .”

Section 102(2) provides, inter alia:

to the fullest extent ible... all ci

Federal Government shall =

on proposals for legislation and other major Federal

actions significantly affecting the quality of the hu-

man environment, a detailed statement by the re-

sponsible official on—

(i) the environmental impact of the proposed ac-

tion,

(ii) any adverse environmental effects which can-

not be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses

of man’s environment and the maintenance and en-

hancement of long-term productivity, and

(v) any irreversible and irretrievable commit-

ments of resources which would be involved in the

proposed action should it be implemented.

Prior to making any detailed statement, the responsi-

ble Federal official shall consult with and obtain

the comments of any Federal agency which has

jurisdiction by law or special expertise which re-

spect to any environmental impact involved. Copies

of such statement and the comments and views of

the appropriate Federal, State, and local agencies,

which are authorized to develop and enforce environ-

mental standards, shall be made available to the

President, the Council on Environmental Quality and

to the public as provided in section 552 of Title 5,

{United States Code] and shall s*company the pro-

posal through the existing agency review processes;

(D) study, develop, and describe appropriate al-

ternatives to recommended courses of action in any

proposal which involves unresolved conflicts concern-

ing alternative uses of available resources;

(E) recognize the worldwide and long-range char-

acter of environmental problems and, where con-

sistent with the foreign policy of the United States,

lend appropriate support to initiatives, resolutions,

and programs designed to maximize international

cooperation in anticipating and preventing a decline

in the quality of mankind’s world environment... .

5. Actions included. The following criteria will

be employed by agencies in deciding whether a pro-

posed action requires the preparation of an environ-

mental statement:

(a) “Actions” include but are not limited w:

(2) New and continuing projects and pro-

gram activities . . . involving a Federal

lease, permit, license, certificate or other

entitlement for use;

(3) The making, modification or establish-

— of regulations, rules, procedures and

policy.

30. Section 11 of the CEQ Guideline provides:

11. Application of section 102(2)(C) procedure to

existing projects and programs.—To the maximum

extent practicable the section 102(2)(C) procedure

should be applied to further major Federal actions

having significant effect on the environment even

though they arise from projects or programs in-

“eo prior to enactment of the Act on January

Where it is not practicable to reassess the basic

course of action, it is still important that further

incremental major actions be shaped so as to mini-

mize adverse environmental consequences. It is also

important in further action that account be taken

of environmental consequences not fully evaluated

at the outset of the project or program.

31. The oil import license fee program is a continuing

activity which involves the issuance of federal permits

or licenses to import oil. Administration of the Pro-

29. The Council on Environmental Quality (“CEQ”) gram requires the making of policy, the issuance of

in 1973 issued Guidelines to assist federal agencies in regulations, and the devising of procedures.

complying with NEPA. Section 5 of the Guidelines pro- 32. Although the first oil import license fee of 18 cents

vides in part: per barrel was established by Presidential Proclamation

4210 of April 18, 1973, the increase of that fee to an

ultimate $3.00 per barrel as pro by the Proclamation

of January 238, 1975, is certainly an “incremental major

action” to be shaped so as to minimize adverse environ-

mental consequences, The CEQ has recognized that a

broad “program statement” is often the most appropriate

means under NEPA of assessing “the overall impact of

a large-scale program.” See CEQ Memorandum to

Agencies:

“Recommendations for Improving Agency Procedures.”

May 16, 1972, pp. 17-18. No such efforts to comply with

the letter and purpose of NEPA have been made by the

defendants.

33. The oil import license fee program “significantly

affect(s| the quality of the human environment” within

the meaning of §102(2)(C) of NEPA.

34. Defendants have failed to comply with the require-

ment of §102(2)(C) of NEPA that they prepare and

make available to the = a statement discussing in

detail the environmental impacts of the oil import license

fee program of the proclamation of January 238, 1975.

35. There are reasonable alternatives to the oi] im-

port license fee program. Defendants have failed to com-

ply with the requirement of §§ 102(2)(D) and 102(2)

scribe” these alternatives and prepare and make avail-

able to the public a detailed statement which discusses

their environmental impacts in detail.

86. Defendants are officials of “agencies of the Fed-

eral Government” within the meaning of § 102(2) (C)

of NEPA. Defendant Zarb, as Administrator of the

Federal Energy Administration, is charged with pri-

mary responsibility for implementing the import license

fee program of the Proclamation of January 23; he is-

sues such licenses subject to the fees. Secretary of the

Treasury William E. Simon is required by the Proclama-

tion of January 28, 1975, to accept into the United

States Treasury certain deposits of such fees held and

then transmitted by Defendant Zarb, Defendants will

execute the oil import license fee system. Defendant

Zarb is the “responsible federal official” required by

§102(2)(C) of NEPA to prepare, circulate for com-

ment, and make available to the public a statement de-

scribing in detail the environment impact of the Program

and alternatives to it.

CAUSES OF ACTION

37. The Proclamation of January 28, 1975, which di-

rects Defendants to impose a requirement of a license

subject to a fee on the importation of oil in circumven-

tion of the rigorous tariff provisions of the Trade Ex-

pansion Act of 1962, as amended, exceeds the narrow

authority delegated by Congress under § 282(b) of the

Trade Expansion Act of 1962, as amended, which is

the authority claimed for its promulgation.

38. Since the power to lay and collect taxes is con-

ferred exclusively on Congress by Article I, Section 8,

clause 1 of the United States Constitution, the Proclama-

tion of January 23, 1975, ordering the imposition of

the license fee is in excess of the authority granted to

the Executive Branch in the Constitution and constitutes

a violation of the doctrine of Separation of Powers.

39. The Proclamation of January 28, 1975, which di-

rects defendants to impose a requirement of a license

subject to a fee on the importation of oil violates § 282

(b) of the Trade Expansion Act of 1962, as amended,

in that Defendant Simon has failed to make “recom-

mendations for action” in terms contemplated by Con-

88.

40. The Proclamation of January 28, 1975, further

Violates § 282(b) of the Trade Expansion Act of 1962,

as amended, in that Defendant Simon has failed to hold

public hearings without offering any explanation, has

failed to consult interested parties, and has disregarded

the comprehensive process of deliberation contemplated by

Congress in its amendment to § 282(b) enacted in 1974.

41. The Proclamation of January 28, 1975 further

Violates § 282(b) of the Trade Expansion Act of 1962,

as amended, in that the investigation published by De-

fendant Simon on January 13, 1975 provides no basis for

the action taken by the Proclamation, to wit: imposition

of a requirement of a license subject to a fee, thereby

disregarding the intent of Congress in its 1974 Amend-

ment to § 2382(b).

42. Defendants have violated the provisions of the

National Environmental Policy Act of 1969, 42 U.S.C,

4821 et seq. by, inter alia, failing to prepare an Environ-

mental Impact Statement.

43. The actions of Defendants complained of herein

violate the provisions of the Administrative Procedure

Act, 5 U.S.C. §§ 701-706.

RELIEF REQUESTED

WHEREFORE, the Plaintiffs respectfully request that

this Court:

44. (a) Enjoin Defendants from imposing the require-

ment of licenses subject to a fee pursuant

to the Proclamation of January 23, 1975; or

in the alternative,

(b) Enjoin Defendants from imposing the require-

ment of licenses subject to a fee pursuant

to the Proclamation of January 23, 1975,

until such time as Defendant Simon has held

= hearings or has otherwise afforded

laintiffs and other parties similarly situated

an opportunity to present information and

advice relevant to any action contemplated

pursuant to § 282(b) of the Trade Expansion

Act of 1962, as amended,

45. Enjoin Defendants from putting into operation

the provisions of the Proclamation of January 23, 1975,

until such time as Defendants have prepared an En-

vironmental Impact Statement that satisfies the require-

ments of the National Environmental Policy Act, 42

U.S.C, 4821 et, seq.

46. Declare that the Proclamation of January 23,

1975, exceeds the authority delegated by Congress under

$2382(b) of the Trade Expansion Act of 1962, as

amended, in that:

(a) it directs Defendants to impose a requirement

of a license subject to a fee on the importation

of oil in circumvention of the tariff provisions

of the Trade Act of 1974;

(b) it lacks the underlying “recommendations for

action” from Defendant Simon mandated by

Congress ;

(¢) Defendant Simon has failed to hold public hear-

ings without offering any explanation, has failed

to consult interested parties, and has disre-

garded the comprehensive process of deliberation

contemplated by Congress in its amendment to

§ 282(b) enacted in 1974;

(d) the investigation published by Defendant Simon

on January 18, 1975 provides no basis for the

action taken by the Proclamation, thereby dis-

regarding the intent of Congress in its 1974

amendment to § 282(b).

47. Plaintiffs also request speedy completion of the

Pleadings and such additional and further relief as the

Court deems appropriate.

COMMONWEALTH OF MASSACHUSETTS, ET AL., PLAINTIFFS

WILLIAM E, Simon, Secretary of the Treasury, ET AL.,

DEFENDANTS

PLAINTIFF’S MOTION FOR PRELIMINARY

INJUNCTION

(Filed February 3, 1976)

Plaintiffs herein respectfully move this Honorable

Court for the entry of a preliminary injunction in ac-

cordance with Rule 65 of the Federal Rules of Civil

Procedure, and in support thereof aver the following:

1. On January 23, 1975, President Ford issued Proe-

lamation 4841, 40 Fed, Reg. 3965, modifying Proclama-

tion 3279 relating to imports of petroleum and petroleum

products issued by President Eisenhower on March 10,

1959, as amended (reprinted at Note to 19 U.S.C. § 1862

(Supp. 1974)). A true and correct copy of this Proclama-

tion is attached hereto as Exhibit A.

2. One effect of the Proclamation of January 23, 1975,

will be to require that importers of petroleum and petro-

leum products pay a supplemental license fee of $1.00

per barrel on imported petroleum or petroleum products

beginning on February 1, 1975, $2.00 per barrel begin-

ning on March 1, 1975, and $3.00 per barrel beginning

on April 1, 1975, and continuing at a license fee rate of

$3.00 per barrel for the indefinite future,

8. On January 14, 1975, Defendant Simon, as Secre-

tary of the United States Treasury, submitted a Report

to the President recommending “that appropriate action

be taken to reduce imports” of petroleum and petroleum

products, A true and correct copy of this Report, dated

January 13, 1975, and the transmittal letter, dated Janu-

ary 14, 1975, is attached hereto as Exhibit B, along with

a copy of an opinion letter of January 14, 1975, from

the Attorney General of the United States to the Secre-

tary of the Treasury (Exhibit C, hereto),

4, According to the Report of the Department of the

Treasury of January 18, 1975 (at page 10), 88% of the

crude petroleum used on the East Coast in 1975 will be

imported, and

“The East Coast problem is especially difficult be-

cause of the high fuel oil demands in the New Eng-

land area and the fact that approximately 98 percent

of the residual fuel oil for PAD District 1 is im-

— as a refined product or made from imported

crude,”

5. Due to their heavy reliance on imported petroleum

products, the plaintiff states will suffer an immediate

economic injury of several million dollars, for each plain-

tiff state, by way of increased costs for the purchase of

petroleum products and other energy sources, and by way

of sharply decreased tax revenues, due to a reduction in

their gross state product,

6. Unless Defendants are enjoined from imposing

their unlawful license fee scheme, as described in Procla-

mation 4341, the plaintiff states and all of their citizens

will suffer immediate and irreparable injury by way of

increased unemployment, curtailed governmental services,

und destruction of the environment, including pollution

of the air, waterways and other limited natural resources.

7. The import license fees to be imposed as of Febru-

ary 1, 1975, pursuant to Proclamation 4841 are unlaw-

ful, in that: (a) the power to lay and collect taxes is

conferred exclusively on Congress by Clause 1 of Article

I, Section 8 of the United States Constitution; (b) See-

tion 282(b) of the Trade Expansion Act of 1962, as

amended by the Trade Act of 1974, does not contain any

delegation by the Congress to the President of the power

to impose the license fees complained of herein; and (c)

in attempting to impose such license fees, Defendants are

acting in cireumvention of the tariff provisions of the

Tariff Act of 1930, the Trade Expansion Act of 1962,

and the Trade Act of 1974,

8. The license fee scheme which Defendants will im-

pose on Plaintiffe, unless enjoined by this Court, has been

adopted in violation of Section 232(b) of the Trade Ex-

pansion Act of 1962, as amended by Section 127(d) of

the Trade Act of 1974, and Defendants’ action thereun-

der are unlawful, in that: (a) Defendant Simon has

failed and refused to hold public hearings, as required

by the Act; (b) Defendant Simon has failed and refused

to seek or consider the views and recommendations of

appropriate individuals and agencies outside the Execu-

tive Branch, with respect to the propriety of and neces-

sity for the license fee scheme, as required by the Act;

and (c) Defendant Simon, in his Report to the President

by transmittal letter of January 14, 1975, has failed to

make “recommendations for action” to the President, as

required by the Act,

9, In implementing their license fee scheme, Defend-

ants have violated the National Environmental Policy

Act of 1969, 42 U.S.C, § 4821 et seq., in that such scheme

will significantly affect the quality of the human environ-

ment, but Defendants have prepared no environmental

impact statement, as required by Section 102 of NEPA,

42 U.S.C. § 4832.

10. Because the injury to be suffered by the plaintiff

states will be irreparable, will begin immediately upon

the effective date of the Proclamation (February 1,

1975), and will increase rapidly with the passage of

time, it is imperative that Defendants be enjoined from

implementing their unlawful license fee scheme at the

earliest practicable time,

WHEREFORE, Plaintiffs respectfully request that

this court:

(1) Schedule a hearing on their Motion for Prelimi-

nary Injunction forthwith;

(2) Enjoin Defendants from imposing a requirement

of import license subject to a fee, pursuant to Procla-

mation 4341, pending determination of the merits;

(3) Enjoin Defendants from imposing a requirement

of import license subject to a fee, pursuant to Procla-

mation 4341 until such time as Defendant Simon has

held public hearings or has otherwise afforded Plaintiffs

and other parties similarly situated an opportunity to

present information and advice relevant to any action

contemplated pursuant to Section 232(b) of the Trade

Expansion Act of 1962, as amended by Section 127(d)

of the Trade Act of 1974;

(4) Enjoin Defendants from putting into operation

the provisions of Proclamation 4341 until such time as

Defendants have prepared an Environmental Impact

Statement that satisfies the requirements of the National

Environmental Policy Act, 42 U.S.C. § 4321 et seq.

Pursuant to Local Rule 1-9(e), the Plaintiffs request

oral hearing and an enlargement of time permitted for

argument.

FRANCIS X BELLOTTI

Attorney General

Commonwealth of Massachusetts

Attorney for the Plaintiffs

NOTICE AND MOTION TO INTERVENE

AS A PLAINTIFF

(Filed February 12, 1975)

COMMONWEALTH OF MASSACHUSETTS, ET AL., PLAINTIFFS,

vs.

WILLIAM E. Simon, Secretary of the Treasury, and

FRANK G. ZARB, Administrator,

Federal Energy Administration, DEFENDANTS,

and

STATE OF MINNESOTA, by WENDELL R. ANDERSON,

its Governor, and WARREN SPANNAUS,

its Attorney General, PLAINTIFF-INTERVENOR.

TO: The parties above-named and their respective

counsel.

PLEASE TAKE NOTICE that the State of Minnesota,

by Wendell R. Anderson, its Governor, and Warren

Spannaus, its Attorney General, hereby moves for an

order of the Court granting it leave to intervene as a

plaintiff in this action in order to assert the allegations

set forth in its proposed complaint, a copy of which is

hereto attached. Oral argument is not requested by

counsel for any of the parties nor by intervenor. The

grounds for this motion are: (1) the State of Minnesota

has an interest in the subject-matter of this action which

is not adequately represented by existing plaintiffs and

is so situated that disposition of this action may as a

practical matter impair or impede its ability to protect

its interest; and (2) the claims of the State of Minnesota

as set forth in its proposed complaint have questions of

both law and fact in common with those of the main

action herein.

This metion is made pursuant to Rules 24(a)(2) and

24(b) (2) of the Federal Rules of Civil Procedure and

is based upon the p

complaint and memorandum

roposed

of points and authorities attached hereto.

Dated: February 7, 1975

By /s/

and /s/

WARREN SPANNAUS

Attorney General

State of Minnesota

Peter W. Sipkins

PETER W. SIPKINS

Solicitor General

Thomas R. Muck

THOMAS R. MUCK

Special Assistant

Attorney General

Thomas H. Jensen

THOMAS H. JENSEN

Special Assistant

Attorney General

160 State Office Building

St. Paul Minnesota 55155

Telephone: (612) 296-2961

Attorneys for |

Plaintiff-Intervenor

COMPLAINT IN INTERVENTION OF

STATE OF MINNESOTA

(Filed February 14, 1975)

COMMONWEALTH OF MASSACHUSETTS, ET AL., PLAINTIFF,

vs.

WILLIAM E. SIMON, ET AL., DEFENDANTS,

and

STATE OF MINNESOTA, by WENDELL R. ANDERSON,

its Governor, and WARREN SPANNAUS,

its Attorney General, PLAINTIFF-INTERVENOR.

INTRODUCTION

This is a civil action seeking to enjoin defendants’

execution of a new system of oil import license fees insti-

tuted by Presidential Proclamation 4341 of January 23,

1975, and seeking a declaratory judgment that said Presi-

dential Proclamation is invalid.

Three separate bases exist for the maintenance of this

action. First, the Proclamation asserts power beyond any

statutory authority conferred by Congress. Second, the

Proclamation was not issued in conformance with pro-

cedural requirements of the statute under which it pur-

ports to act, Section 232 of the Trade Expansion Act of

1962, as amended by Section 127D of the Trade Act of

1974, 19 U.S.C. $1862. Third, the defendants’ imple-

mentation of the Proclamation, without having first pre-

pared a considered and detailed environmental impact

statement of the effects of the Proclamation, violates the

requirements of The National Environmental Policy Act

(NEPA), 42 U.S.C. § 4321, et seg.

JURISDICTION

1. The jurisdiction of the Court is invoked pursuant to

28 U.S.C. 1331 (federal question), 28 U.S.C. 1337 (regu-

lation of interstate commerce), 28 U.S.C. 1361 (action in

the nature of mandamus), 28 U.S.C. 2201-02 (declara-

tory judgment), 42 U.S.C. 4321 et seg. (National En-

vironmental Policy Act), and 5 U.S.C. 701-06 (Adminis-

trative Procedure Act). The amount in controversy ex-

ce2ds $10,000, exclusive of interest and costs.

PLAINTIFF IN INTERVENTION

2. The State of Minnesota is a sovereign state of

the United States of America, and, by its Governor,

Wendell R. Anderson, and its Attorney General, Warren

Spannaus, sues (a) as a major user of imported petro-

leum, petroleum products and derivative energy products

in the performance of its many governmental and pro-

prietary functions; (b) as a collector of revenues based

upon sales of petroleum; and (c) as parens patriae on

behalf of persons within its borders who have been or

will be harmed by the wrongful acts of defendants. The

State of Minnesota and its citizens are greatly dependent

upon Canadian crude oil since all three of Minnesota’s

refineries, in addition to a Wisconsin refinery supplying

Minnesota, utilize Canadian crude oil.

PARTIES DEFENDANT

3. Defendant William E. Simon is Secretary of the

Treasury of the United States. The Secretary of the

Treasury is the administrative official most responsible

for the actions challenged herein, including (a) prepara-

tion of the findings under Section 232 of the Trade Act

of 1974 upon which the challenged Proclamation is based,

and (b) general responsibility under the Proclamation

for administration of the new oil import fee system

and evaluation of its impact upon the economy.

4. Defendant Frank G. Zarb is Administrator of the

Federal Energy Administration (hereinafter the “Ad-

ministrator”). Under Section 1 of Proclamation 4341,

the Administrator, as of February 1, 1975, is charged

with the duty to issue allocations and licenses subject

to fees as scheduled in the Proclamation on imports of

crude oil, unfinished oils, and finished products. Under

Section 2 of Proclamation 4341, the Administrator is

charged with the duty to hold all such import license

fees in a suspense account, from which he may draw for

the .~payment of certain refundable license fees. Also

under Section 2 of the Proclamation, the Administrator

is charged with the duty to deposit in the Treasury of

the United States at the end of each fiscal year those

balances remaining in the suspense account and not re-

quired to be reserved for license fee refunds.

5. Defendants Simon and Zarb are sued in their of-

ficial capacities. |

FACTUAL BACKGROUND

A. The Trade Legislation and Executive Proclamation.

6. The statutory source of oil import programs is a

portion of the Trade Expansion Act, namely, 19 U.S.C.

1862(b). That Section (as most recently amended by

the Trade Act of 1974) (Pub. L. 93-618) provides as

follows:

b. Upon request of the head of any department

or agency, upon application of an interested party,

or upon his own motion, the Secretary of the Treas-

ury (hereinafter referred te as the “Secretary”)

shall immediately make an appropriate investiga-

tion, in the course of which he shall seek informa-

tion and advice from, and shall consult with, the

Secretary of Defense, the Secretary of Commerce,

and other appropriate officers of the United States,

to determine the effects on the national security of

imports of the article which is the subject to such

request, application or motion. The Secretary shall,

if it is appropriate and after reasonable notice, hold

public hearings or otherwise afford interested parties

an opportunity to present information and advice

relevant to such investigation. The Secretary shall

report the findings of his investigation under this

subsection with respect to the effect of the importa-

tion of such article in such quantities or under such

circumstances upon the national security and, based

on such findings, his recommendation for action or

inaction under this Section to the President within

one year after receiving an application from an in-

terested party or otherwise beginning an investiga-

tion under this subsection. If the Secretary finds

that such article is being imported into the United

States in such quantities or under such circum-

stances as to threaten to impair the national se-

curity, he shall so advise the President and the

President shall take such action, and for such time

as he deems necessary to adjust the imports of

such article and its derivatives » that such imports

will not threaten to impair the national security,

unless the President determines that the article is

not being imported into the United States in such

quantities or under such circumstances as to threaten

to impair the national security.

7. The forerunner of the above-quoted section was

originally passed as Section 7 of the Trade Agreements

Extension Act of 1955 (69 Stat. 166 (1959)) and was

amended by Section 8 of the Trade Agreements Ex-

tension Act of 1958 (72 Stat. 678 (1958)). A minor

amendment was made when the statute was incorporated

into the Trade Expansion Act of 1962, 19 U.S.C 1862.

The last amendments were made in the Trade Act of

1974 (Pub. L. 93-618, effective January 3, 1975).

8. Despite many changes of form, the essential powers

given the President have remained the same—namely,

to take action to adjust imports in the interests of na-

tional security. Section 1862(b), under which Proclama-

tion 4341 was issued, confers no power to impose duties

or licenses subject to a fee.

9. A power in the Executive Branch to impose duties

or tariffs must rest on a clear delegation of authority

from Congress since the authority to assess taxes, duties,

imports and excises lies solely with Congress and not

with the President. U.S. Const. art. I, § 8. Section 1862

(b) confers no such authority upon the President and

was intended only to allow for a system of direct im-

port quotas to be used in specific, narrowly-defined cir-

cumstances occasioned by the interests of national se-

curity.

10. The power of the Executive Branch to create

tariffs is controlled by the Tariff Act of 1930, 19 U.S.C.

1202, et seq., the Trade Expansion Act of 1962, and

various sections of the Trade Act of 1974, These Acts

contain detailed procedures and provide explicit limita-

tions for Conavess’ deiegati’ of ite powers to lay tariffs

or take any actions in ine nature of tariffs, in order

that the delegation be properly governed.

11, None of the procedures for properly establishing

a tariff was followed by the President in issuing Procla-

mation 4341, The Proclamation was wrongfully issued on

the authority of Section 1862(b),

12. The President administered Section 1862(b) for

14 years without ever claiming that it included a power

to affect duties or license fees. In 1959 President Kisen-

hower moved to limit imports of petroleum and petroleum

products to this country by the promulgation of Procla-

mation No, 3279. Said Proclamation established a quota

system, not a tariff or fee, and was clearly within the

wording of Section 1862 to adjust imports. It es-

tablished a licensing system and provided that no petro-

leum or petroleum products could be imported except by

persons issued a license by the Secretary of the Interior.

13, The quota program provided for determination by

the Secretary of the Interior of the levels of oil to be

imported into various districts of the United States and

for determinations by the Secretary of the amounts so

permitted to be imported by each properly licensed im-

porter into the districts,

14. The Secretary of the Interior was authorized to

issue regulations by which import licenses were to be

issued, and pursuant to said authority, the Secretary of

the Interior issued Oil Import Regulation 382A, C.F.R.

ch, X, which is still the governing regulation.

15. The oil import quota program was continued in

substantially the same form, with only minor amend-

ments, until April 19, 1973. On that date President

Nixon issued Executive Proclamation 4210 which sus-

pended the quota program and replaced it with a new

oil import limitation scheme whereunder a license was

still required to import oil but whereunder the amount

~ —. which might be imported by a licensee was not

mited.

16. As to imports beyond certain prescribed levels, a

“license fee” was to be charged the licensee. The Procla-

mation provided that between the date it became ef-

fective and 1980, all imported oil would gradually be-

come subject to a license fee.

17, On January 23, 1975, President Ford issued Ex-

ecutive Proclamation 4841 which imposed on all petroleum

products imported into the United States custom terri-

tory an additional flat rate fee of $1 per barrel after

February 1, 1975, $2 per barrel after March 1, 1975,

and $3 per barrel after April 1, 1975. The Proclamation

also increased the per-barrel license fee on imports over

specified levels. The President did not purport to treat

J _ to be charged as duties under the Tariff Act of

18. The Nixon and Ford two-tier fee system has

created the largest monetary exaction in respect to im-

ports in the history of the United States. All this

monetary regulation has been wrongfully imposed under

Te gamed to adjust imports contained in 19 U.S.C,

19. Proclamation 4341 was issued without public hear-

ings having been held or interested parties otherwise

having been afforded an opportunity to present informa-

tion and advice relevant to an investigation by the Sec-

retary of the Treasury relating to the effect of the

importation of petroleum upon the national security,

Section 282 of the Trade Expansion Act of 1962, as

amended, requires the Secretary of the Treasury “if it is

appropriate and after reasonable notice [to] hold public

hearings or otherwise afford interested parties an op-

portunity to present information and advice relevant to

such investigation.” Section 127(d)(3), Pub. L. 98-

618, January 8, 1975,

20. In light of the immense burden placed upon the

economy of Minnesota by the aforesaid license fees, it was

not only appropriate but necessary that hearings be held

so that the plaintiff in intervention, which is so vitally

affected by said fees, could present its views.

21. The imposition of such fees without hearings was

in contravention of both the letter and spirit of the

statute and was an arbitrary and capricious act.

22. This action was particularly arbitrary and ca-

pricious in view of the finding of the Cabinet Task

Force, created by the President on March 25, 1969,

that restrictions on overland imports of oil from Canada

were “non-security limitations” and its recommendation

that limitations on imports of oil from Canada be ended.

(See paragraphs 303 and 427b of the Cabinet Task

Force report.)

B. Eccnomic Injury To Plaintiff In Intervention.

23. The execution of Proclamation 4341 will drastically

increase the cost of imported crude oil and derivative

energy products to the State of Minnesota and its citi-

zens, Minnesota being dependent upon imported crude

oil for much of its energy requirements since all three

Minnesota refineries operate almost exclusively on Cana-

dian crude oil. Direct energy costs to Minnesota users

of petroleum and petroleum products will increase an-

a by over 150 million dollars as a result of these

ees,

24. Direct energy costs to the State of Minnesota as

a consumer and proprietor will increase annually by over

one million dollars, The fees would result in an annual

reduction of state tax revenues in excess of seven mil-

lion dollars. The aggregate annual loss to the State

budget, so far *s measurable, would exceed eight million

dollars. To cope with this severe impact on its budget,

the State will be forced either to increase taxes by special

legislation or curtail services to its citizens. Hither

course of action will harm the State irreparably, beyond

any adequate remedy at law.

25. The increase of taxes will aggravate the depart-

ure of commerce and industry from the State and further

aggravate unemployment in the State.

26. A reduction of services to substantial ents of

the population needful and otherwise help (the

aged, the young, the physically infirm, the mentally ill

and retarded) works irreparable harm since those serv-

ices and benefits once lost are beyond restoration and

compensation to both the State and its citizens.

27. Further, the damages which have been and will

be incurred by the State as a result of the wrongful acts

of defendants will be of such complexity and duration

as to be realistically incaleulable and beyond reparation

by any available remedies at law.

C. The Effect Of The Proclamation Upon The Environ-

ment Of The Plaintiff In Intervention

28. The implementation of the system of license fees

established pursuant to the Proclamation of January 23,

1975, is intended to reduce the quantity of foreign oil

imported into the United States by a substantial amount.

Reduction of imported oil will have a significant effect

upon the human development of Minnesota.

29. Specifically, the reduction directly restricts the

supply of low sulfur oil, the principal sources of which

are Nigeria, Libya and Canada, ause sulfur oxide

is a principal source of air pollution, low sulfur oil is

an essential determinant of Minnesota’s ability to comply

with clean air standards under the Clean Air Act of

1970 (42 U.S.C. §§ 1857, et seq.).

80. That Act requires the states to promulgate and

implement state implementation plans carrying out the

objectives of the Act and the regulation thereunder.

(42 U.S.C, § 1857(c) ; 40 C.F.R. §§ 50.4-50.5.)

31. The import license fee program Proclamation 4341

is intended to and may well have the effect of stimulating

domestic exploration, extraction and processing of pe-

troleum with significant effects on the human environ-

ment of Minnesota, including the following:

a. Construction and alteration of oil refineries

and petro-chemical plants, which are sources of air

and water pollution;

b. Leasing of federal lands for oil shale develop-

ment, with consequent environmental damage.

82. The import license fee program is intended to and

may well have the effect of stimulating use of sources

of energy alternative to oil, with significant effects upon

the human environment of Minnesota, including the fol-

lowing:

a. Poliferation of nuclear power plants, with at-

tendant risk of heat pollution and radiation pollu-

tion;

b. Stimulation of production of nuclear fuels ad-

versely affecting the environment;

ce, Increased strip mining for coal, with the ac-

companying damage to the environment; and

d. Increased burning of coal with consequent air

pollution from the production of sulfur oxide in con-

siderably greater quantity than would result from

oil or other fossil fuel,

33. The reduction of oil imports will also have a

direct effect upon transportation problems for both for-

eign and domestic oil with significant effects upon the

human environment of Minnesota, including the follow-

ing:

a. Changes in domestic service transportation pat-

terns increasing air and water pollution;

b. Changes in the level of oil tanker traffie in-

creasing the potential for oil pollution of coastal

waters and waterways.

34, There has been no public consideration, consulta-

tion or discussion of the environmental impact of the

Proclamation of January 23, 1975; there has been no

evaluation of alternatives to the proposed action of the

Proclamation; there has been no evaluation of the short-

term or long-term effects of the Proclamation.

35. The National Environmenta! Policy Act (NEPA)

became effective on January 1, 1970. Pub, L, 91-190,

83 Stat. 852, 42 U.S.C, $8 4321, et seq.

36. The purposes of NEPA are inter alia “|t\o de

clare a national policy which will encourage productive

and enjoyable harmony between man and his environ-

ment; to promote efforts which will prevent or eliminate

damage to the environment and biosphere and stimulate

the health and welfare of man; to enrich the understand-

ing of the —— systems and natural resources im-

portant to the Nation... .” Section 2 of NEPA, 42

U.S.C, § 4821,

87. Section 101(a) of NEPA contains a Congressional

declaration “, . . that it is the continuing policy of the

Federal Government ... to use all practical means and

measures . . . to create and maintain conditions under

which man and nature can exist in productive har-

mony... .”

88. Section 101(b) states: “lijn order to carry out

the policy set forth in this Act it is the continuing

responsibility of the Federal Government to use all prac-

ticable means, consistent with other essential considera-

tions of national policy, to improve and coordinate Fed-

eral plans, functions, programs, and resources to the

end that the Nation may... (8) “[ajttain the widest

range of beneficial uses of the environment without de-

gradation, risk to health or safety or other undesirable

and unintended consequences, . . .’

89. To effectuate the Act’s policies, Section 102(1)

of NEP.. directs that:

. » « the policies, regulations, and public laws of

the United States shall be interpreted and adminis-

—s accordance with the policies set forth in

8 Act....

Section 102(2) provides, inter alia:

... all agencies of the Federal Government shall—

proposals for Legislation and other major Federal

actions significantly affecting the quality of the hu-

man environment, a detailed statement by the re-

sponsible official on—

(i) The environmental impact of the pro-

posed action;

(ii) Any adverse environmental effects which

cannot be avoided should the proposal be im-

plemented ;

(iii) Alternatives to the proposed action;

(iv) The relationship between local short-

term uses of man’s environment and the main-

tenance and enhancement of long-term produc-

tivity. ...

(D) Study, develop, and describe appropriate al-

ternatives to recommend courses of action in any

proposal which involves unresolved conflict concern-

ing alternative uses of available resources;

40. The Council on Environmental Quality (“CEQ”)

in 1973 issued guidelines to assist federal agencies in

complying with NEPA, Section 5 of the guidelines pro-

vides in part:

(5) Actions Included,

(2) New and continuing project and program

activities: directly undertaken by Federal agencies

., or involving a Federal lease, permit, license cer-

tificate or other entitlements for use.

(3) The making, modification, or establishment

of regulations, rules, procedures, and policy.

41. Section 13 of the CEQ guidelines provides:

Application of Section 102(2)(C) Procedure To Ex-

isting Projects and Programa,

Agencies have an obligation to reassess ongoing

projects and programs in order to avoid or mini-

mize adverse environmental effects. The section

102(2)(C) procedure shall be applied to further

major Federal actions having a significant effect on

the environment even though they arise from proj-

ects or programs initiated prior to enactment of the

Act on January 1, 1970. While the status of the

work and degree of completion may be considered

in determining whether to proceed with the project,

it is essential that the environmental impacts of

proceeding are reassessed pursuant to the Act’s

policies and procedures and, if the project or pro-

gram is continued, that further incremental major

actions be shaped so as to enhance and restore en-

vironmental quality as well as to avoid or minimize

adverse environmental consequences. It is also im-

portant in further action that account be taken of

environmental consequences not fully evaluated at

the outset of the project or program.

42. The oil import license fee program is a continuing

activity which involves the issuance of federal permits

or licenses to import oil. Administration of the program

requires the making of policy, the issuance of regula-

tions and the devising of procedures.

43. Although the first oil import license fee of 18

cents per barrel was established by Presidential Procla-

mation 4210 of April 18, 1973, the increase of that fee

to an ultimate $3 per barrel as proposed by the Procla-

mation of January 23, 1975, is certainly an “incre-

mental major action” to be shaped so as to minimize

adverse environmental consequences. The CEQ has rec-

ognized that a broad “program statement” is often the

most appropriate means under NEPA of assisting “the

over-all impact of a large-scale program.” See, CEQ

Memorandum to Agencies: “Recommendations for Im-

proving Agency Procedures.” May 16, 1972, pp. 17-18.

No efforts to comply with the letter and purpose of

NEPA have been n ide by the defendants prior to the

effective date of the program created by Proclamation

4341.

44. The oil import license fee program “significantly

affect[s} the quality of the human environment” within

the meaning of Section 102(2)(C) of NEPA.

45. Defendants have failed to comply with the re-

quirement of Section 102(2)(C) of NEPA that they

prepare and make available to the public a statement

discussing in detail the environmental impacts of the

oil import license fee program of Proclamation of Jan-

uary 23, 1975.

46. There are reasonable alternatives to the oil im-

port license fee program. Defendants have failed to com-

ply with the requirement of Sections 102/2)(D) and

102(2)(C) (iii) of NEPA that they “study, develop, and

describe” these alternatives and prepare and make avail-

able to the public a detailed statement which discusses

their environmental impact in detail.

47. Defendants are officials of “agencies of the fed-

eral government” within the meaning of Section 102(2)

the Federal Energy Administration, is charged with

primary responsibility for implementing the import li-

cense program of the Proclamation of January 23, 1975;

he issues such licenses subject to the fees. Secretary of

the Treasury William E. Simon is required by the Proc-

lamation of January 23, 1975, to accept into the United

States Treasury certain deposits of such fees held and

then transmitted by defendant Zarb. Defendants will

execute the oil import license fee system. Defendant

Zarb is the “responsible federal official” required by

Section 102(2)(C) of NEPA to prepare, circulate for

comment, and make available to the public a statement

describing in detail the environmental impact of the pro-

gram and the alternatives to it.

48. Plaintiff has no speedy or adequate remedy at law.

COUNT ONE

49. Realleges the allegations contained in paragraphs

1 through 48 herein.

50. The President issued Executive Proclamation 4341,

imposing a per-barrel fee of up to $3 on petroleum im-

ports allegedly pursuant to the authority granted him

by Congress under Section 232(b) of the Trade Expan-

sion Act of 1962.

51. Said Section only authorizes the President to im-

pose direct import quotas in the interests of national

security and not a fee or tariff.

_52. The President exceeded his authority under Sec-

tion 232(b) of the Trade Expansion Act of 1962 and

said Proclamation is therefore invalid.

COUNT TWO

53. Realleges the allegations contained in paragraphs

1 through 48 and 50 herein.

54. Executive Proclamation 4341 is a clear attempt

to circumvent the requirements for tariff modification in

19 U.S.C. § 1346 and § 13851, and is therefore invalid.

COUNT THREE

55. Realleges the allegations contained in paragraphs

1 through 48 and 50 herein.

56. Since the power to lay and collect taxes is con-

ferred exclusively on Congress by Art. I, § 8, Clause 1

of the United States Constitution, Executive Proclama-

tion 4341 ordering the imposition of the per-barrel fee

is in excess of the authority granted to the Executive

Branch in the Constitution and constitutes a violation

of the doctrine of separation of powers.

COUNT FOUR

57. Realleges the allegations contained in paragra

1 through 48 and 50 herein. _—

58. Executive Proclamation 4341 violates Section 222

(b) of the Trade Expansion Act of 1962, as amended,

in that defendant Simon has failed to make “recom-

mendations for action” in terms contemplated by Con-

gress.

COUNT FIVE

59. Realleges the allegations contained in paragraphs

1 through 48 and 50 herein. einai

60. Executive Proclamation 4341 further violates Sec-

tion 232(b) of the Trade Expansion Act of 1962, as

amended, in that defendant Simon has failed to hold

public hearings without offering any explanation, has

failed to consult interested parties, and has disregarded

the comprehensive process of deliberation contemplated

by Congress in its amendment to Section 232(b) en-

acted in 1974.

COUNT SIX

61. Realleges the allegations contained in paragraphs

1 through 48 and 50 herein.

62. Executive Proclamation 4241 further violates Sec-

tion 232(b) of the Trade Expansion Act, as amended,

in that the investigation published by defendant Simon

on January 23, 1975, provides no basis for the action

taken by the Proclamation, to wit, imposition of a per-

barrel fee, thereby disregarding the intent of Congress

in its 1974 amendment to Section 232(b).

COUNT SEVEN

63. Realleges the allegations contained in paragraphs

1 through 48 and 50 herein.

64. Executive Proclamation 4341 violates the require-

ments of The National Environmental Policy Act

(NEPA), 42 U.S.C. § 4321, et seg., in that the de-

fendants have not prepared and made available to the

public a considered and detailed environmental impact

statement of the effects of said Proclamation.

COUNT EIGHT

65. Realleges the allegations contained in paragraphs

1 through 48 and 50 herein.

66. Executive Proclamation 4341 further violates the

requirements of The National Environmental Policy Act

(NEPA), 42 U.S.C. § 43821, et seg., in that the de-

fendants have not studied, developed, described, and

made available to the public appropriate alternatives

to said Proclamation.

RELIEF REQUESTED

WHEREFORE, plaintiff respectfully prays that this

Court issue its order and judgment:

I. Declaring that Executive Proclamation 4341 is an

invalid attempt to exercise the authority delegated to the

President by Congress under Section 232(b) of the Trade

Expansion Act of 1962, as amended, in that:

A. Section 232(b) does not empower the Presi-

dent to impose fees or tariffs;

B. Said Proclamation directs defendants to impose

a per-barrel fee on imported petroleum products in

circumvention of the tariff provisions of the Trade

Expansion Act of 1962, as amended;

C. Defendant Simon did not comply with the re-

quirements of Section 232(b) that he hold hearings

and consult interested parties before requesting that

the President take action under Section 232(b) ;

D. The investigation published by defendant Si-

mon on January 13, 1975, provides no basis for the

action taken by said Proclamation, thereby vio-

lating Section 232(b) ;

E. Said Proclamation was not issued pursuant to

recommendations for action made by defendant

Simon as required by Section 232(b) ;

II. Enjoining defendants from imposing per-barrel

fees on imported petroleum products under Executive

Proclamation 4341; or, in the alternative,

III. Enjoining each of the defendants and his suc-

cessors from imposing per-barrel fees on imported pe-

troleum products pursuant to Executive Proclamation

4341 until such time as:

A. Defendant Simon has complied with the re-

quirements of Section 232(b) by holding hearings

and affording interested parties, including plain-

tiff, opportunity to present information on the

matter, by issuing a report on his findings and by

making recommendations for action; and

B. Defendants have prepared an environmental

impact statement as required by the National En-

vironmental Policy Act, 42 U.S.C. § 4321, et seq.

Dated: February 7, 1975.

WARREN SPANNAUS

Attorney General

State of Minnesota

By /s/ Peter W. Sipkins

Solicitor General

and /s/ Thomas R. Muck

Special Assistant

Attorney General

and /s/ Thomas H. Jensen

Special Assistant

Attorney General

160 State Office Building

Saint Paul, Minnesota 55155

Telephone: (612) 296-2961

Attorneys for

Plaintiff-Intervenor

NOTICE AND MOTION FOR

PRELIMINARY INJUCTION

[Filed February 14, 1975]

COMMONWEALTH OF MASSACHUSETTS,

ET AL., PLAINTIFFS,

v8.

WILLIAM E. SIMON,

Secretary of the Treasury, and

FRANK G. ZARB,

Administrator, Federal Ene: gy

Administration,

DEFENDANTS,

and

STATE OF MINNESOTA, by

WENDELL R. ANDERSON,

its Governor, and

WARREN SPANNAUS,

its Attorney General,

PLAINTIFF-INTERVENOR.

TO: The parties above-named and their respective

counsel.

PLEASE TAKE NOTICE that on February 21, 1975,

at 9:30 a.m., or as soon thereafter as counsel can be

heard, the State of Minnesota, plaintiff-intervenor here-

in, will move for an order of the Court as follows:

(1) enjoining the implementation of Presidential Proc-

lamation 4341 pending a decision on the merits of this

action; or, (2) enjoining the implementation of said

Proclamation (a) until such time as public hearings are

conducted by the Secretary of the Treasury pursuant to

§ 232 of the Trade Expansion Act of 1962, as amended;

or, (b) until responsible agency officials file an accepta-

ble environmental impact statement pursuant to the pro-

visions of 42 U.S.C.A. § 4332(c) (i)-(v) (1973).

60 61

The grounds for this motion are: (1) plaintiff- COMPLAINT FOR MANDAMUS, INJUNCTIVE,

intervenor can demonstrate a probability of ultimate DECLARATORY AND OTHER RELIEF

success on the merits of this action; (2) irreparable

harm will be suffered by plaintiff-intervenor and its

citizens if this motion is denied; (3) no appreciable

harm will be suffered by defendants if the equitable ALGONQUIN SNG, INC.

relief requested is granted; and (4) the public interest 1284 Soldiers Field Road

will be served by issuance of a preliminary injunction Boston, Massachusetts 02135

herein. 617-254-4050

This motion is brought pursuant to Federal Rule of

Civil Procedure 65 and is based upon all of the files and NEW ENGLAND POWER COMPANY

records of the proceedings herein, the attached memo- 20 Turnpike Road

randum of law and the affidavits of the Honorable Westboro, Massachusetts 01581

Wendell R. Anderson and Dr. James Carter. ) 617-366-9011

NEW BEDFORD GAS AND EDISON LIGHT COMPANY

693 Purchase Street

New Bedford, Massachusetts 02740

617-996-8211

CAMBRIDGE ELECTRIC LIGHT COMPANY

46 Blackstone Street

Cambridge, Massachusetts 02139

617-661-1600

CANAL ELECTRIC COMPANY

130 Bishop Richard Allen Road

Cambridge, Massachusetts 02139

617-881-1301

MONTAUP ELECTRIC COMPANY

Riverside Avenue

Somerset, Massachusetts 02726

617-678-5283

THE CONNECTICUT LIGHT AND POWER COMPANY

Selden Street

Berlin, Connecticut 60101

203-666-2431

THE HARTFORD ELECTRIC LIGHT COMPANY

176 Cumberland Avenue

Wethersfield, Connecticut 06101

203-249-5711

[Filed January 27, 1975}

te en.

Dated: February 13, 1975

ee ks Tet

WARREN SPANNAUS

Attorney General

State of Minnesota

PETER W. SIPKINS

Solicitor General

THOMAS R. MUCK

Special Assistant

Attorney Genera!

Oh en IO ee ee ee

ee] reve enbtitens od

By /s/ Thomas H. Jensen

Special Assistant

Attorney General

160 State Office Building

St. Paul, Minnesota 55155

Telephone: (612) 296-2961

Attorneys for

Plaintiff-Intervenor

i tet sets 0 eel mieten eae ee ee silk Ake 6 AO Al A Carte alee

WESTERN MASSACHUSETTS ELECTRIC COMPANY

174 Brush Hill Avenue

West Springfield, Massachusetts 01089

413-785-5871

HOLYOKE WATER POWER COMPANY

One Canal Street

Holyoke, Massachusetts 01040

413-536-5520

and

ROBERT DRINAN

140 Commonwealth Avenue

Boston, Massachusetts 02216

617-969-0100, PLAINTIFFS,

WILLIAM E. SIMON

Secretary of the Treasury

United States Treasury Department

15th & Pennsylvania Avenue, N.W. ‘

Washington, D.C. 20220

FRANK G. ZARB

Administrator, Federal Energy Administration

Federal Energy Administration

1200 Pennsylvania Avenue, N.W.

Washington, D.C. 20461

202-655-4000

and

FRANCINE NEFF

Treasurer of the United States

United States Treasury Department

15th & Pennsylvania Avenue, N.W.

Washington, D.C. 20220

DEFENDANTS.

Nature of the Claim

1. This action is to compel by mandamus the issuance

of fee-free licenses authorizing the importation of

petroleum or petroleum products and to enjoin the col-

lection of fees assessed pursuant to Executive Proclama-

~~ — ea

tion No. 3279, as amended, (Exec. Proc. 3279) and to

have said Proclamation declared illegal and unenforce-

able to the extent that it requires payment of fees for

licenses for importation of petroleum and petroleum

products into the United States.

Jurisdiction

2. The jurisdiction of this Court is based on 5 U.S.C.

§§ 701-706; 28 U.S.C. §§ 1331, 1332, 1337, 1361, 1651,

2201, and 2202. The amount in controversy in this case

exceeds $10,000 exclusive of interest and costs.

Parties Plaintiff

3. The corporate plaintiffs are a natural gas company

and certain public utilities serving the public in the

northeast section of the United States, and are depend-

ent in large measure upon imported petroleum and

petroleum products for the production and distribution

of electric power and synthetic gas. The names of the

plaintiffs and the states under the laws which they were

organized and exist follow: Algonquin SNG, Inc. (Al-

gonquin), Delaware; New England Power Company

(New England), Massachusetts; New Bedford Gas and

Edison Light Company (New Bedford), Massachusetts;

Cambridge Electric Company (Cambridge), Massachu-

setts; Canal Electric Company (Canal), Massachusetts;

and, Montaup Electric Company (Montaup), Massa-

chusets. The Connecticut Light and Power Company

(CL&P), Connecticut; The Hartford Electric Light Com-

pany (HELCO), Connecticut; Western Massachusetts

Electric Company (WMEC), Massachusetts; and, Holy-

oke Water Power Company (Holyoke), Massachusetts.

4. Plaintiff, Robert F. Drinan, S.J., is a member of

Congress, representing the Fourth Congressional District

of Massachusetts and maintains his residence at 140

Commonwealth Avenue, Boston, Massachusetts as well

as a year-round district office in Walthan, Massa-

chusetts. Congressman Drinan is a consumer of gas and

electricity in the City of Boston, Massachusetts, his es-

tablished residence, and in Waltham, Massachusetts.

Parties Defendant

5. Defendant Zarb is the Administrator of the Fed-

eral Energy Administration, is responsible for the im-

plementation, effectuation, and enforcement of Exec.

Proc. 3279, and, with Defendants Simon and Neff, is

responsible for the collection of the license fees imposed

pursuant to Exec. Proc. 3279.

6. Defendant Simon is the Secretary of the Treasury

and with Defendants Zarb and Neff is responsible for

the collection of the license fees imposed pursuant to

Exec. Proc. 3279.

7. Defendant Neff is the Treasurer of the United

States and, with Defendants Zarb and Simon, is respon-

sible for the collection of the license fees imposed pur-

suant to Exec. Proc.

The Fee System under Exec. Proc. 3279

8. Executive Proclamation No. 4210, effective May 1,

1973, amended Executive Proclamation 3279 and insti-

tuted, inter alia, the present license fee system replacing

the Mandatory Oil Import Program (MOIP) and modi-

fying the “method of adjusting imports of petroleum and

petroleum products.” As was provided in the MOIP, no

petroleum or petroleum products may be imported into

the United States without a license issued by the FEA

(Exec. Proc. 3279, $1(a)). The modification consisted

of “shifting to a system whereby fees for licenses” con-

cerning imports were to be charged. MOIP had been

established on March 10, 1959 by Exec. Proc. 3279 under

the authority of Section 2 of the Act of July 1, 1954, as

amended, 72 Stat. 678 (19 U.S.C. § 1352), presently 19

U.S.C. § 1862.

9. Exec. Proc. 3279 is implemented and enforced by

the Defendant FEA Administrator. See also, Federal

Energy Administration Act of 1974, Public Law 93-275;

Ex. Order 11790, effective June 27, 1974. The FEA

Administrator is directed to issue allocations and licenses

subject to fees, on imports of crude oil, unfinished oils

and finished products.

10. Pursuant to the authority of Executive Procla-

mation 4210, issued April 18, 1973, the FEA Adminis-

trator issued regulations implementing that Executive

Proclamation and prescribing procedures by which li-

censes were to issue to qualified applicants. (May 1,

1973 38 F.R. 10727).

11. By Executive Proclamation signed by the Presi-

dent January 23, 1975, Executive Proclamation 3279 was

further amended to continue in effect the schedule of

fees instituted in accordance with Exec. Proc. 4210 and,

in addition, provided for a different and higher schedule

of fees for the issuance of licenses for the importation

of petroleum and petroleum products.

12. The Proclamation amended subparagraph (1) of

paragraph (a) of section 3 to provide that licenses shall

require inter alia, that with respect to imports of crude

oil and natural gas products, over and above the levels

established in Section 2 of Exec. Proc. 3279, fees shall

be $0.21 per barrel. With regard to imports of motor

gasoline, unfinished oils and all other finished products

(except ethane, propane, butanes and asphalt) over and

above the levels of imports established in Section 2 Exec.

Proc. 3279 fees shall be $0.63 per barrel.

_13. Additionally, with respect to imports of crude

oil, natural gas products, unfinished oils, and other

finished products (except ethane, propane, butanes, and

asphalt) entered into the customs territory of the United

States on or after February 1, 1975 there shall be an

additional fee per barrel of $1.00 rising to $2.00 on im-

ports entered on or after March 1, 1975 and to $3.00

on imports entered on or after April 1, 1975. For cer-

tain imports refunds of a portion of the $1.00, $2.00, or

$3.00 fee may be made to the importer of record, pur-

suant to Section 3(a) (1) (viii) of Exec. Proc. 3279.

14. Applications for allocations and licenses for im-

ports subject to a fee must be accompanied by either a

certified or cashier’s check for the full amount of the fee

payable to the order of the defendant Treasurer of the

United States or accompanied by a bond for not less than

the amount of the fee with a surety which is on the list

of acceptable sureties on Federal bonds maintained by

the Bureau of Government Financial Operations, Depart-

ment of the Treasury. The bond must be conditioned

upon payment to the order of the Treasurer of the

United States, within the last day of the month follow-

ing the month in which the imports were released from

customs custody or entered or withdrawn from ware-

houses, whichever occurs first, unless another time frame

is set by the Administrator. If the face value of the

bond is reduced below the amount of outstanding lia-

bility or if the bond is terminated the Administrator is

directed immediately to revoke all licenses issued pur-

suant to the bond. Exec. Proc. 3279, § 3‘b)).

15. The cash fees received by the Administrator are

held by him in a suspense account and may be drawn

upon by the Administrator for the payment of refund-

able license fees. Balances remaining and not required

to be reserved are to be deposited at the end of each

fiscal year in the Treasury in the Treasury of the

United States administered by the defendant Secretary

of the Treasury, and credited to miscellaneous receipts.

(Exec. Proc. 3279, § 3(a) (1)).

Irreparable Damage to Plaintiffs

16. Plaintiff, Algonquin, owns and operates a syn-

thetic gas plant in Freetown, Massachusetts. This plant

uses naphtha, which is a petroleum product under Exec.

Proc. 3279, as feedstock in the manufacture of synthetic

gas, a large portion of which feedstock is imported by

Algonquin and is subject to the licensing and license

fees imposed by Exec. Proc. 3279. As a result, Algon-

quin has paid, and would continue to pay substantial

license fees as an importer of such feedstock. If Al-

gonquin is to meet its customer’s normal requirements,

it will import over one million barrels of naphtha within

the next three months and over two million barrels of

naphtha during calendar year 1975. A fee-free license

has been applied for by Algonquin and has been denied

in large part.

17. The remaining corporate plaintiffs are the owners

of numerous fossil fueled electric generating facilities in

Massachusetts, Connecticut and other States. Said gen-

erating facilities require large amounts of residual fuel

6:1, @8 an energy source, and residual fuel oil is a pe-

troleum product under Exec. Proc. 3279. Plaintiffs have

purchased, and are continuing to purchase, substantial

amounts of such residual oil from importers who are

subject to licensing and license fees imposed by Exec.

Proc. 3279, and, in the case of New England, from those

who purchase from such importers, and these license

fees are, and will be, passed on to said plaintiffs in the

form of higher fuel prices. A fee-free license has been

applied for by New England and has been denied.

18. Plaintiffs CL&P, HELCO, WMEC and Holyoke,

all subsidiaries of Northeast Utilities, a public utility

holding company, in the aggregate, consumed 21.5 mil-

lion barrels of imported residual fuel oil in 1974 and

will consume approximately that amount in 1975.

19. Plaintiffs New England, New Bedford, Cam-

bridge, Canal, and Montaup will purchase approximately

the following quantities of residual fuel oil within the

next three months and during the remainder of Calendar

Year 1975:

Next Three Months CY1975

New England 2,900,000 Barrels 17,600,000 Barrels

New Bedford 163,572 599,764

Cambridge 241,000 883,664

Canal 1,465,300 5,372,780

Montaup 296,000 1,250,000

20. The proposed increase in license fees will sub-

stantially increase the cost of fuel to Plaintiffs, will re-

quire that rates be increased to customers in the face of

increasing public resistance in rate matters and, as to

practically all Plaintiffs will create an additional lag in

recovery of their costs through revenues with resulting

adverse effect on working capital and the cost of ce pital,

and will cause serious damage to relationships with cus-

tomers. Algonquin will be compelled to absorb the in-

creased costs of fuel and will be unable to pass them

along except after extensive administrative proceedings

before the Federal Power Commission. The increase in

rates by Plaintiffs will cause severe damage and per-

sonal hardship to Plaintiffs’ customers.

21. Plaintiff Drinan has \cen injured and shall con-

tinue to be injured by the illegal fee system imple-

mented, effectuated, and enforced by the Administrator

of the FEA and collected by the Administrator of the

FEA, and the Treasurer of the United States, and the

Secretary of the Treasury, pursuant to Exec. Proc. 3279,

since these illegal actions have resulted and will con-

tinue to result in added costs to him as a result of in-

creased utility rates.

22. Because of the imposition and collection of the

illegal fees pursuant to Exec. Proc. 3279, the Plaintiffs

have suffered and will continue to suffer immediate and

irreparable injury, for which there exists no adequate

remedy at law.

Illegal Nature of the Licensing Fees

23. The license fees established by Exec. Proc. 3279

are in circumvention of the duty system. Under Article

1, Section 8, Clause 1, of the United States Constitution,

the Congress has the sole power to lay and collect duties

and when it exercises that power, all such duties must be

uniform throughout the United States. The fees estab-

lished by Exec. Proc. 3279, do not operate with geo-

graphical uniformity, inasmuch as a given importer’s

obligation to pay license fees may vary depending upon

the section of the country into which the particular

importation occurs. Exec. Proc. 3279, § (a). These fees

are therefore illegal.

24. Exec. Proc. 3279, was issued allegedly pursuant

to Section 232 of the Trade Expansion Act of 1962, as

amended, (19 U.S.C. $1862). Neither the Trade Ex-

pansion Act of 1962, as amended, nor any other Act of

Congress, nor the Constitution itself, delegates to the

President the power to establish or require the estab-

lishment of license fees such as those established by and

pursuant to Exec. Proc. 3279.

25. The attempt by the President to restrict importa-

tion of petroleum and petroleum products by imposing

license fees thereon, absent specifically delegated au-

thority to do so, exceeds his authority and violates Arti-

cle 1, Section 8, Clause 3 of the United States Constitu-

tion, which confers on the Congress the sole right to

regulate commerce with foreign nations and among the

several States.

26. The Executive Proclamation issued January 23,

1974, further amending Exec. Proc. 3279, was issued

without public hearings having been held or interested

parties otherwise having been afforded an opportunity to

present information and advice relevant to an investiga-

tion by the Secretary of the Treasury relating to the

effect of the importation of petroleum upon the national

security. Section 232 of the Trade Expansion Act of

1962, as amended, requires the Secretary of the Treasury

“if it is appropriate and after reasonable notice [to}

hold public hearings or otherwise afford interested par-

ties an opportunity to present information and advice

relevant to such investigation.” Section 127(d) (3), P.L.

93-618, January 3, 1975.

27. In light of the immense burden placed upon the

economy of the northeastern section of the U.S. by the

aforesaid license fees, not all of which can be foreseen

by these particular Plaintiffs, it was not only appropriate

but necessary that hearings be held so that the Plain-

tiffs, which are so vitally affected by said fees, could

present their views. The imposition of such fees with-

out hearings therefore was in contravention of both the

letter and spirit of the statute and was an arbitrary and

capricious act.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiffs pray that this Court:

1. Enjoin the Defendant Administrator of the Fed-

eral Energy Administration from further implementing,

effectuating and enforcing Executive Proclamation No.

3279, as amended, to the extent that it imposes and will

impose fees for licenses for the importation of petroleum

and petroleum products into the United States, and

further enjoin Defendants Administrator of the Federal

Energy Administration, Secretary of the Treasury, and

the Treasurer of the United States from collecting such

fees.

2. Issue a declaratory judgment declaring and ad-

judicating that Executive Proclamation No. 3279, as

amended, is unlawful to the extent that it imposes and

will impose fees for licenses for the importation of

petroleum and petroleum products into the United States.

3. Order the Defendant Administrator of the Federal

Energy Administration to issue import licenses without

requiring the payment of fees for these licenses for the

importation of petroleum and petroleum products into

the United States.

4. If this Court should uphold the legality of Execu-

tive Proclamation No. 3279, as amended, enjoin the De-

fendants from collecting any of the licensing fees de-

scribed herein until such time as hearings have been

held, and findings made, as provided by statute.

5. Order speedy completion and filing of the pleadings.

6. Grant such further and additional relief to plain-

tiffs as may be necessary and appropriate.

Respectfully submitted,

RicH, May & BILODEAU

By /s/ Michael F. Donlan

One State Street

Boston, Massachusetts 02109

617-742-6500

CONNOLE AND O’CONNELL

By /s/ William R. Connole

#52845

and /s/ Ernest C. Baynard, III

#17186

One Farragut Square South

Washington, D.C. 20006

202-347-8300

Attorneys for Plaintiffs

vps ee

» Te "

7 eS oe

a ow Te.

[Filed February 3, 1975]

ALGONQUIN SNG, INC.,

NEW ENGLAND POWER COMPANY,

NEW BEDFORD GAS AND EDISON LIGHT COMPANY,

CAMBRIDGE ELECTRIC LIGHT COMPANY,

CANAL ELECTRIC COMPANY,

MONTAUP ELECTRIC COMPANY,

THE CONNECTICUT LIGHT AND POWER COMPANY,

THE HARTFORD ELECTRIC LIGHT COMPANY,

WESTERN MASSACHUSETTS ELECTRIC COMPANY,

HOLYOKE WATER POWER COMPANY,

and

ROBERT DRINAN, PLAINTIFFS

WILLIAM E. SIMON,

FRANK G. ZARB,

and

FRANCINE NEFF, DEFENDANTS

MOTION FOR PRELIMINARY INJUNCTION

AND OTHER PRELIMINARY RELIEF

Plaintiffs hereby move this Court for a preliminary

injunction and an order in the nature of mandamus in

the form attached hereto.

This motion is based on the ground that immediate

and irreparable injury, loss and damage will result to

plaintiffs unless the motion is granted, as more particu-

larly appears from the Memorandum of Points and Au-

thorities herewith, together with accompanying exhibits

and affidavits.

Respectfully submited,

RicH, May & BILODEAU

By: /s/ Michael F. Donlan

Michael F. Donlan

One State Street

Boston, Massachusetts 02109

617-742-6550

CONNOLE AND O’CONNELL

By: /s/ William R. Connole

William R. Connole

#52845

Ernest C. Baynard, III

#17186

One Farragut Square South

Washington, D.C. 20006

202-347-8300

Attorneys for Plaintiffs

[Filed February 5, 1975)

ALGONQUIN SNG, INC.,

NEW ENGLAND POWER COMPANY,

NEW BEDFORD GAS AND EDISON LIGHT COMPANY,

CAMBRIDGE ELECTRIC LIGHT COMPANY,

CANAL ELECTRIC COMPANY,

MONTAUP ELECTRIC COMPANY,

THE CONNECTICUT LIGHT AND POWER COMPANY,

THE HARTFORD ELECTRIC LIGHT COMPANY,

WESTERN MASSACHUSETTS ELECTRIC COMPANY,

HOLYOKE WATER POWER COMPANY,

and

ROBERT DRINAN, PLAINTIFFS

WILLIAM E. SIMON,

FRANK G. ZARB,

and

FRANCINE NEFF, DEFENDANTS

MOTION FOR PRELIMINARY INJUNCTION

AND OTHER PRELIMINARY RELIEF

Plaintiffs hereby move this Court for a preliminary

injunction and an order in the nature of mandamus in

the form attached hereto.

This motion is based on the ground that immediate

and irreparable injury, loss and damage will result to

plaintiffs unless the motion is granted, as more particu-

larly appears from the Memorandum of Points and Au-

thorities herewith, together with accompanying exhibits

and affidavits.

: /8/

/g/

Respectfully submitted,

RicH, May & BILODEAU

By: /s/ Michael F. Donlan

Michael F. Donlan

One State Street |

Boston, Massachusetts 02109 |

617-742-6550

CONNOLE AND O’CONNELL

William R. Connole

#52845

ran a ee ee

Ernest C. Baynard, III

#17186

One Farragut Square South

Washington, D.C. 20006

202-347-8300

ous

Attorneys for Plaintiffs

Affidavit of William D. Jaques

I, William D. Jaques, of 6 Robert Road, Reading,

Massachusetts, being duly sworn, depose and say as

follows:

1. I am Vice President of Algonquin SNG, Inc. (‘‘Al-

gonquin SNG”’), a Delaware corporation, and also of its

yarent company Algonquin Gas Transmission Company

(“Algonquin Gas’), a Delaware corporation (which owns

100% of Algonquin SNG), with a principal place of

business at 1284 Soldiers Field Road, Boston, Massa-

chusetts.

2. Algonquin SNG owns and operates a synthetic

natural gas plant in Freetown, Massachusetts, with a

capacity of 120,000 Mcf of synthetic gas per day. All

of its output is sold to Algonquin Gas which is one of

two major gas pipelines in New England. Algonquin

Gas is a natural gas company subject to the jurisdiction

of the Federal Power Commission and sells gas solely

at wholesale, being the sole source of natural gas for

cities such as Providence, Rhode Island; New Haven

and New London, Connecticut; and Boston, Fall River,

Cambridge and New Bedford, Massachusetts. In order

to manufacture synthetic natural gas, it is necessary to

use a naphtha feedstock and Algonquin: SNG, in order

to operate its plant, needs to import approximately half

of its winter requirements; namely, to import 2,250,000

barrels during the wintertime. Algonquin SNG requires

imports of over 800,000 barrels for the remainder of

the winter period ending April 15, 1975.

3. Imports of naphtha are subject to license fees un-

der the President’s import fee program. Algonquin SNG

has no suppliers with a base period and, hence, has no

way of getting fee-free imports under the license fee

program without being granted them by the Federal

Energy Authority (“FEA”). Said license was denied

to Algonquin SNG for the year 1974 by the FEA, but

on appeal to the Oil Import Appeals Board, Algonquin

SNG received fee-free licenses for 485,000 barrels ex-

piring April 30, 1975. Hence, Algonquin SNG must pay

fees on the remainder of its imports.

4. The recent proclamation of January 23, 1975 of

President Ford would increase a so-called “first tier” of

license fees from 42¢ to 63¢ effective February 1, 1975.

It also creates a second tier of license fees of $1.00 per

barrel of imported oil in February, $2.00 per barrel in

March and $3.00 per barrel in April and thereafter. Said

increase may be subject to a rebate in February of an

uncertain amount up to $1.00 per barrel, of a rebate in

March of an uncertain amount up to $1.40 per barrel

and to a rebate in April of an uncertain amount up to

$1.80 per barrel. Assuming no rebate, the total fees that

would be paid by Algonquin SNG for the balance of the

winter period is estimated by me to equal nearly

$950,000.

5. The aforesaid amount, if paid, must be absorbed

by the Algonquin system because Algonquin Gas has no

way of passing on said costs to its customers. The rates

of Algonquin Gas are regulated by the Federal Power

Commission and these rates do not include an escalation

clause passing on the costs of feedstock. The only way

for Algonquin Gas to reimburse itself for extra ex-

penses is to file a rate case and, as a practical matter,

said rate change cannot be made effective in less than

six months.

6. The absorption of said extra costs by the Algonquin

system would have a substantial adverse financial effect

upon the Company. At such time as Algonquin Gas is

able to pass said license fees onto its customers, said

extra costs will result in a substantially higher gas biii

for consumers in New England, with adverse effect on

industry and economic and personal hardship on: resi-

dential customers.

re as. ~~

IN WITNESS WHEREDOF, I have executed the within

affidavit this 28th day of January, 1975.

/s/ William D. Jaques

WILLIAM D. JAQUES

Subscribed and sworn to before me

this 28th day of January, 1975.

/s/ (Illegible]

Notary Public

My Commission Expires December 4, 1976

AFFIDAVIT OF GUY W. NICHOLS

I, Guy W. Nichols, of Needham, Massachusetts, being

duly sworn, depose and say as follows:

1. I am President of New England Power Company

(NEPCO), a Massachusetts corporation and a subsidiary

of New England Electric System, a registered holding

company under the Public Utility Holding Company Act

of 1935.

2. NEPCO is the generation and transmission sub-

sidiary of New England Electric System and, as such,

is the wholesale supplier of substantially all the electric

energy requirements of its affiliates, Massachusetts Elec-

tric Company, The Narragansett Electric Company, and

Granite State Electric Company. These three affiliates of

NEPCO provide electric service to approximately 1,000,-

000 customers in Massachusetts, New Hampshire, and

Rhode Island.

3. NEPCO owns a four unit tidewater generating sta-

tion at Brayton Point, Somerset, Massachusetts (approxi-

mately 1600 megawatts) and a four unit tidewater gen-

erating station at Salem Harbor, Massachusetts (ap-

proximately 770 megawatts).

4. Under NEPCO’s current arrangement for fuel sup-

ply, its fuel contracts and purchase orders are assigned

to a non-affiliated intermediary which purchases and

holds the fuel in inventory, and sells the fuel to NEPCO

at the time of burn at prices reflecting the cost of the

fuel and the services of the intermediary. Therefore,

any increase in the price of fuel to this intermediary,

including import license fees, are paid by NEPCO in

the cost of the fuel purchased from the intermediary.

5. Of the four units at Brayton Point, three units (or

approximately 1150 megawatts) are capable of burning

either coal or oil. NEPCO has requested and received a

suspension of air quality regulations to burn coal in

these three units until June 30, 1975. NEPCO estimates

that it could burn as much as 11,000,000 barrels of im-

ported residual fuel oil at this generating station in 1975.

6. Of the four units at Salem Harbor, three units (or

approximately 300 megawatts) are capable of burning

either coal or oil. NEPCO has requested, but has not

yet received, suspension of air quality regulations to burn

coal in these three units. NEPCO estimates that it could

burn as much as 6,600,000 barrels of imported residual

fuel oil at this generating station in 1975.

7. The current cost of imported oil as delivered to

the aforesaid plants is in excess of $12.00 per barrel,

having gone up nearly three-fold since the 1973 oil em-

bargo, and imposition of an additional $3.00 “second

tier” license fee as referred to in paragraph 9 below

will increase fuel costs per barrel by about 21.9%.

8. The increased cost of fuel occasioned by license

fees is passed on to NEPCO’s customers under a fuel

adjustment clause in NEPCO’s rates, and, in turn, The

Narragansett Electric Company, Granite State Electric

Company, and Massachusetts Electric Company pass on

any such increases to their customers by means of fuel

adjustment clauses.

9. The recent proclamation of January 23, 1975 of

President Ford would increase by 21¢ per barrel present

license fees (a so-called “first tier’) to 63¢ per barrel

and in addition would create a so-called “second tier”

increase of license fees of $1.00 per barrel of imported

oil in February, $2.00 per barrel in March and $3.00 per

barrel in April, and thereafter. The effect of the rise

in the first tier of license fees to 63¢ is uncertain as it

depends upon fee-free quotas of plaintiffs’ suppliers,

quotas which are currently at 90% of a prior base period.

The increase of the second tier license fees is estimated

to amount in 1975 to $46,276,000 for NEPCO. Said in-

crease may be subject to a rebate in February of an un-

certain amount up to $1.00 per barrel, of a rebate in

March of an uncertain amount up to $1.40 per barrel,

and to a rebate in April and perhaps subsequent months

of an uncertain amount up to $1.80 per barrel.

10. NEPCO will also pay increases in costs of pur-

chased power generated by oil-fired plants of other com-

panies as a result of increase in both tiers of license fees.

11. In addition, under proposed changes in FEA reg-

ulations occasioned by President Ford’s recent proclama-

tion, NEPCO will lose the benefit of the so-called en-

titlement program, which affiant is informed amounted

to 47¢ per barrel imported in November, 1974, the latest

month in which said amount has been computed by the

federal government. Said amount is payable as of Janu-

ary.

V2. In addition, fee-free exemptions under the so-called

first tier of license fees, now being raised to 63¢ per

barrel, will be phased out to zero hy 1980, so that the

full 63¢ per barrel will impact upon NEPCO by that

date.

13. The impact of the increase in fee on NEPCO will

be to substantially increase the carrying charges of fuel

inventory. Such an increase in carrying charges would

not be passed on to NEPCO’s customers through its

fuel adjustment clause. While NEPCO would attempt

to recover the increase in carrying charges through rate

proceedings, any such procedure would involve a lag in

the recovery thereof.

14. Any resulting increase in the cost of electricity to

NEPCO’s customers would cause severe economic hard-

ship to the ultimate consumer of electricity.

IN WITNESS WHEREOF, I have executed the within

affidavit this 3lst day of January, 1975.

/s/ Guy W. Nichols

Guy W. NICHOLS

Subscribed and Sworn to before me this 31st day of

January, 1975.

/s/ (Illegible}

Notary Public

My commission expires: | TIllegible)

PROCLAMATION No. 3279

ADJUSTING IMPORTS OF PETROLEUM AND

PETROLEUM PRODUCTS INTO THE

UNITED STATES

By the President of the United States of America

A PROCLAMATION

WHEREAS, pursuant to section 2 of the act of July

1, 1954, as amended (72 Stat. 678, 19 U.S.C. 1352a),

the Director of the Office of Civil and Defense Mobiliza-

tion has made an appropriate investigation to determine

the effects on the national security of imports of crude

oil and crude oil derivatives and products and, having

considered the matters required by him to be considered

by the said act of July 1, 1954, as amended, has advised

me of his opinion “that crude oil and the principal crude

oil derivatives and products are being imported in such

quantities and under such circumstances as to threaten

to impair the national security”; and

WHEREAS, having considered the matters required

by me to be considered by the said act of July 1, 1954, as

amended, I agree with the said advice; and

WHEREAS I find and declare that adjustments must

be made in the imports of crude oil, unfinished oils, and

finished proucts, so that such imports will not so threaten

to impair the national security; and

WHEREAS I find and declare that within the conti-

nental United States there are two areas, one, east of

the Rocky Mountains (Districts I-IV), in which there is

substantial oil production capacity in excess of actual

production, and the other, west of the Rocky Mountains

(District V), in which production is declining and in

which, due to the absence of any significant inter-area

flow of oil, limited imports are necessary to meet demand,

and that accordingly, imports into such areas must be

treated differently to avoid discouragement of and de-

crease in domestic oil production, exploration and devel-

opment to the detriment of the national security; and

WHEREAS I find and declare that the Commonwealth

of Puerto Rico largely depends upon imported crude oil,

unfinished oils, and finished products and that any sys-

tem for the adjustment of imports of such commodities

should permit imports into Puerto Rico adequate for the

purposes of local consumption, export to foreign areas,

and limited shipment of finished products to the conti-

nental United States:

NOW, THEREFORE, I, DWIGHT D. EISENHOW-

ER, President of the United States of America, acting

under and by virtue of the authority vested in me by

section 2 of the act of July 1, 1954, as amended, do here-

by proclaim as follows:

Section 1. (a) In Districts I-IV, District V, and in

Puerto Rico, on and after March 11, 1959, no crude oil

or unfinished oils may be entered for consumption or

withdrawn from warehouse for consumption, and on and

after April 1, 1959, no finished products may be entered

for consumption or withdrawn from warehouse for con-

sumption, except (1) by or for the account of a person

to whom a license has been issued by the Secretary of

the Interior pursuant to an allocation made to such per-

son by the Secretary in accordance with regulations is-

sued by the Secretary, and such entries and withdrawals

may be made only in accordance with the terms of such

license, or (2) as authorized by the Secretary pursuant

to paragraph ‘b) of this section, or (3) as to finished

products, by or for the account of a department, estab-

lishment, or agency of the United States, which shall

not be required to have such a license but which shall be

subject to the provisions of paragraph ic) of this sec-

tion, or (4) crude oil, unfinished oils, or finished prod-

ucts which are transported into the United States by

pipeline, rail, or other means of overland transportation

from the country where they were produced, which coun-

try, in the case of unfinished oils or finished products,

is also the country of production of the crude oil from

which they were processed or manufactured.

(b) The Secretary of the Interior may, in his discre-

tion, authorize entries without a license of small quanti-

ties of crude oil, unfinished oils, or finished products, in-

cluding samples for testing or analysis, baggage entries,

and informal entries.

on and after April 1, 1959, no department, establishment,

or agency of the United States shall import finished prod-

ucts in excess of the respective allocations made to them

by the Secretary of the Interior. Such allocations shall

be within the maximum levels of imports established in

section 2 of this proclamation.

Sec. 2. (a) (1) In Districts I-IV, for a particular

allocation period the maximum level of imports, subject

to allocation, of crude oil, unfinished oils, and finished

products other than residual fuel oil to be used as fuel

shall be an amount equal to the difference between 12.2

percent of the quantity of crude oil and natural gas

liquids which the Secretary of the Interior estimates will

be produced in these districts during that allocation pe-

riod and the quantity of imports of crude oil, unfinished

oils, and finished products excepted by clause (4) of

paragraph (a) of section 1 which the Secretary of the

Interior estimates will be imported into these districts

during that allocation period. As used in this subpara-

graph, the term “natural gas liquids” means natural gas

products and other hydrocarbons such as isopentane, pro-

pane, butane, propylene, and butylene, or mixtures there-

of, recovered from natural gas by means other than re-

fining. Within such maximum level, the imports of fin-

ished products other than residual fuel oil to be used as

fuel shall not exceed the level of imports of such products

into these districts during the calendar year 1957 and

imports of unfinished oils shall not exceed 10 percent of

the permissible imports of crude oil and unfinished oils.

(2) In District I the imports of residual fuel oil to

be used as fuel shall not exceed the level of imports of

that product into that district during the calendar year

1957. In Districts II-IV the imports of residual fuel oil

to be used as fuel shall not exceed the level of imports

of that product into those districts during the calendar

year 1957.

(b) In District V the maximum level of imports of

crude oil and finished products shall be an amount which,

together with domestic production and supply and im-

ports excepted by clause (4). of paragraph (a) of section

1 of this proclamation, will approximate total demand in

that district as estimated by the Bureau of Mines for

periods fixed by the Secretary and, for the purposes of

this limitation, imports of unfinished oils shall be con-

sidered to be the equivalent of imports of crude oil on

the basis of such ratios as the Secretary may establish.

Within this maximum level, imports of finished products

shall not exceed the level of imports of such products into

this district during the calendar year 1957. Imports of

unfinished oils as such (without respect to the require-

ment of equivalence) shall not exceed such per centum

of the permissible imports of crude oil as the Secretary

may from time to time determine.

finished oils, and finished products into Puerto Rico shall

be approximately the level of imports into Puerto Rico

during all or part of the calendar year 1958, as deter-

mined by the Secretary of the Interior to be consonant

with the purposes of this proclamation, or such lower or

higher levels as the Secretary may subsequently deter-

mine are required to meet increases or decreases in local

demand in Puerto Rico or demand for export to foreign

areas.

(d) The Secretary of the Interior shall keep under

review the imports into Districts I-IV and into District

V of residual fuel oil to be used as fuel and the Secre-

tary may make, notwithstanding the levels prescribed in

paragraphs (a) and (b) of this section and on a monthly

basis if required, such adjustments in the maximum

levels of such imports as he may determine to be con-

sonant with the objectives of this proclamation.

(e) The levels established, and the total demand re-

ferred to, in this section do not include free withdrawals

by persons pursuant to section 309 of the Tariff Act of

1930, as amended (19 U.S.C.A. § 1309), or petroleum

supplies for vessels or aircraft operated by the United

States between points referred to in said section 309 (as

to vessels or aircraft, respectively) or between any point

in the United States or its possessions and any point in

a foreign country.

Sec. 3. (a) The Secretary of the Interior is hereby

authorized to issue regulations for the purpose of imple-

menting this proclamation. Such regulations shall be

consistent with the levels established in this proclama-

tion for imports of crude oil, unfinished oils, and finished

products into Districts I-IV, into District V, and into

Puerto Rico, 2nd shall provide for a system of allocation

of the authorized imports of such crude oil, unfinished

oils and finished products and for the issuance of licenses

pursuant to such system, with such restrictions upon the

transfer of allocations and licenses as may be deemed

appropriate to further the purposes of this proclamation.

(b) (1) With respect to the allocations of imports of

crude oil and unfinished oils into Districts I-IV and into

District V, such regulations shall provide, to the extent

possible, for a fair and equitable distribution among

persons having refinery capacity in these districts in re-

lation to refinery inputs on the basis of a graduated

scale (excluding inputs of crude oil or unfinished oils

imported pursuant to clause (4) of paragraph (a) of

section 1) during an appropriate period or periods

selected by the Secretary. Provision shall be made in

such regulations for the gradual reduction of allocations

made on the basis of the last allocations of imports of

crude oil under the Voluntary Oil Import Program, ex-

cept that provisions shall be made for a more rapid re-

duction of those allocations based on allocations under

the Voluntary Oil Import Program which reflected im-

ports of crude oil in the category now covered by clause

(4) of paragraph (a) of section 1.

(2) Such regulations shall provide for the allocation

of imports of crude oil and unfinished oils into Puerto

Rico among persons having refinery capacity in Puerto

Rico in relation to refinery inputs during all or a part

of the calendar year 1958 as the Secretary may de-

termine.

(3) Such regulations shall require that imported crude

oil and unfinished oils be processed in the licensee's re-

finery except that exchanges for domestic crude or un-

finished oils may be made if otherwise lawful, if ef-

fected on a current basis and reported in advance to

the Secretary, and if the domestic crude or unfinished

oils are processed in the licensee’s refinery.

(4) With respect to the allocation of imports of

finished products, other than residual fuel oil to be used

as fuel, into Districts I-IV, District V, and Puerto Rico,

such regulations shall, to the extent possible, provide (i)

for a fair and equitable distribution of imports of such

finished products among persons who have been im-

porters of such finished products into the respective dis-

tricts or Puerto Rico during the respective base periods

specified in section 2 of this proclamation, and (ii) for

the granting and adjustment of allocations of imports

of such finished products in accordance with procedures

established pursuant to section 4 of this proclamation.

(5) With respect to the allocation of imports of resi-

dual fuel oil to be used as fuel into Districts II-IV,

District V, and Puerto Rico, such regulations shall, to

the extent possible, provide for a fair and equitable

distribution of imports of residual fuel oil to be used

as fuel among persons who have been importers of that

product into the respective districts or Puerto Rico dur-

ing the respective base periods specified in section 2 of

this proclamation. With respect to the allocation of

imports into District I of residual fuel oil to be used

as fuel, such regulations shall, to the extent possible,

provide for a fair and equitable distribution of imports

of residual fuel oil to be used as fuel among persons who

have been importers of that product into such district

during the calendar year 1957 and among persons who

are in the business in District I of selling residual fuel

oil to be used as fuel and who have had inputs of that

product to deep-water terminals located in District I,

in relation to such terminal inputs on the basis of a

graduated scale. With respect to the allocation of im-

ports of residual fuel oil to be used as fuel into Dis-

trict I, Districts II-IV, District V, and Puerto Rico,

such regulations shall also provide, to the extent pos-

sible, for the granting and adjustment of allocations

of imports of residual fuel oil to be used as fuel in

accordance with procedures established pursuant to sec-

tion 4 of this proclamation.

or suspension by the Secretary of any allocation or li-

cense on grounds relating to the national security, or the

violation of the terms of this proclamation, or of any

regulation or license issued pursuant to this proclamation.

Sec. 4. (a) The Secretary of the Interior is authorized

to provide for the establishment and operation of an

Appeals Board to consider petitions by persons affected

by the regulations issued pursuant to Section 3 of this

proclamation. The Appeals Board shall be comprised of

a representative each from the Departments of the In-

terior, Defense, and Commerce to be designated respec-

tively by the heads of such Departments.

(b) The Appeals Board may be empowered, within

the limits of the maximum levels of imports established

in section 2 of this proclamation (1) to modify, on the

grounds of exceptional hardship or error, any allocation

made to any person under such regulations; (2) to grant

allocations of crude oil and unfinished oils~in special

circumstances to persons with importing histories who

do not qualify for allocations under such regulations; (3)

to grant allocations of finished products on the ground

of exceptional hardship to persons who do not qualify

for allocations under such regulations; and (4) to review

the revocation or suspension of any allocation or license.

The Secretary may provide that the Board may take such

action on petitions as it deems appropriate and that the

decisions by the Appeals Board shall be final.

Sec. 5. Persons who apply for allocations of crude

oil, unfinished oils, or finished products and persons to

whom such allocations have been made shall furnish to

the Secretary of the Interior such information and shall

make such reports as he may require, by regulation or

otherwise, in the discharge of his responsibilities under

this proclamation.

Sec. 6. (a) The Director of the Office of Emergency

Planning shail maintain a constant surveillance of im-

ports of petroleum and its primary derivatives in respect

of the national security and, after consultation with the

Secretaries of State, Defense, Treasury, the Interior,

Commerce, and Labor, he shall inform the President of

any circumstances which, in the Director’s opinion might

indicate the need for further Presidential action under

Section 2 of the act of July 1, 1954, as amended [this

section]. In the event prices of crude oil or its products

or derivatives should be increased after the effective

date of this proclamation, such surveillance shall include

a determination as to whether such increase or increases

are necessary to accomplish the national security ob-

jectives of the act of July 1, 1954, as amended, and of

this proclamation.

(b) The Special Committee to Investigate Crude Oil

Imports is hereby discharged of its responsibilities.

Sec. 7. The Secretary of the Interior may delegate,

and provide for successive redelegation of, the authority

conferred upon him by this proclamation. All depait-

ments and agencies of the Executive branch of the Gov-

ernment shall cooperate with and assist the Secretary

of the Interior in carrying out the purposes of this

proclamation.

Sec. 8. Executive Order 10761 of March 27, 1958, en-

titled “Government Purchases of Crude Petroleum and

Petroleum Products” (23 F.R. 2067) is hereby revoked

as of April 1, 1959.

Sec. 9. As used in this proclamation:

(a) “Person” includes an individual, a corporation,

firm, or other business organization or legal entity, and

an agency of a state, territorial, or local government,

but does not include a department, establishment, or

agency of the United States;

(b) “District I’ means the States of Maine, New

Hampshire, Vermont, Massachusetts, Connecticut, Rhode

Island, New York, New Jersey, Pennsylvania, Maryland,

Delaware, West Virginia, Virginia, North Carolina,

South Carolina, Georgia, and Florida, and the District

of Columbia.

United States except those States within District 1 and

District V.

(d) “Districts I-IV” means the District of Columbia

and all of the States of the United States except those

States within District V;

(e) “District V” means the States of Arizona, Ne

vada, California, Oregon, Washington, Alaska, and Ha-

waii;

(f) “Crude oil” means crude petroleum as it is pro-

duced at the well-head and liquids (under atmospheric

conditions) that have been recovered from mixtures of

hydrocarbons which existed in a vaporous phase in a

reservoir and that are not natural gas products;

(g) “Finished Products” means any one or more of

the following petroleum oils, or a mixture or combina-

tion of such oils, which are to be used without further

processing except blending by mechanical means:

(1) liquified gases—hydrocarbon gases recovered from

natural gas or produced from petroleum refining and

kept under pressure to maintain a liquid state at ambient

temperatures ;

(2) gascline—a refined petroleum distillate which, by

its composition, is suitable for use as a carburant in

internal combustion engines;

(3) jet fuel—a refined petroleum distillate used to

fuel jet propulsion engines;

(4) naphtha—a refined petroleum distillate falling

within a distillation range overlapping the higher gaso-

line and the lower kerosenes;

(5) fuel oil—a liquid or liquefiable petroleum product

burned for lighting or for the generation of heat or

power and derived directly or indirectly from crude oil,

such as kerosene, range oil, distillate fuels oils, gas oil,

diesel fuel, topped crude oil, residues;

(6) lubricating oil—a refined petroleum distillate or

specially treated petroleum residue used to lessen fric-

tion between surfaces;

(7) residual fuel oil—a topped crude oil or viscous

residuum which, as obtained in refining or after blend-

ing with other fuel oil, meets or is the equivalent of

Military Specification Mil-F-859 for Navy Special Fuel

Oil and any other more viscous fuel oil, such as No. 5

or Bunker C;

(8) asphalt—a solid or semi-solid cementitious ma-

terial which gradually liquities when heated, in which

the predominating constituents are bitumins, and which

is obtained in refining crude oil.

(9) “natural gas products” means liquids (under at-

mospheric conditions), including natural gasoline, which

are recovered by a process of absorption, adsorption,

compression, refrigeration, cycling, or a combination of

such processes, from mixtures of hydrocarbons that ex-

isted in a vaporous phase in a reservoir and which,

when recovered and without processing in a refinery,

otherwise fall within any of the definitions of products

contained in clauses (2) through (5), inclusive, of this

paragraph (g).

(h) “Unfinished Oils” means one or more of the pe-

troleum oils listed in paragraph (e) of this section,

or a mixture or combination of such oils, which are

to be further processed other than by blending by me-

chanical means.

IN WITNESS WHEREOF, I have hereunto set my

hand and caused the Seal of the United States of America

to be affixed.

DONE at the City of Washington this 10th day of

March in the year of our Lord nineteen hundred and

Fifty-nine, and of the Independence of the United States

of America the one hundred and eighty-third.

[SEAL ] e

DWIGHT D. EISENHOWER

PROCLAMATION 4210

MODIFYING PROCLAMATION 3279, RELATING TO

IMPORTS OF PETROLEUM AND PETROLEUM

PRODUCTS, PROVIDING FOR THE LONG-TERM

CONTROL OF IMPORTS OF PETROLEUM AND

PETROLEUM PRODUCTS THROUGH A SYSTEM

OF LICENSE FEES AND PROVIDING FOR

GRADUAL REDUCTION OF LEVELS OF

IMPORTS OF CRUDE OIL, UNFINISHED

OILS AND FINISHED PRODUCTS

By the President of the United States of America

A PROCLAMATION

The Chairman of the Oil Policy Committee maintains

a constant surveillance of imports of petroleum and its

primary derivatives in respect to the national security.

He informs me that, in the course of his surveillance,

he has reviewed the status of imports under Proclama-

tion 3279,‘ as amended, of petroleum and its primary

derivatives in their relation to the national security and

that further Presidential action under section 232 of the

Trade Expansion Act of 1962, as amended, is required.

He recommends, after consultation with the Oil Policy

Committee, that the method of adjusting imports of petro-

leum and petroleum products be modified by immediately

suspending tariffs on imports of petroleum and petroleum

products and by shifting to a system whereby fees for

licenses covering such imports shall be charged and

whereby such fees may be adjusted from time to time,

as required in order to discourage the importation into

the United States of petroleum and petroleum products

in such quantities or under such circumstances as to

threaten to impair the national security; to create condi-

124 FR 1781; 3 CFR, 1959-1963 Comp., p. 11.

tions favorable, in the long range, to domestic production

needed for projected national security requirements; to

increase the capacity of domestic refineries and petro-

chemical plants to meet such requirements; and to en-

courage investment, exploration, and development neces-

sary to assure such growth.

The Chairman informs me further, that the levels of

imports heretofore fixed in calendar year 1973, with re-

spect to Districts I-IV, District V, and Puerto Rico, re-

flect application of the established policy that for each

such area the maximum level of imports shall be the

difference between estimated supply and estimated de-

mand, and that he finds that such levels of imports should

be continued to be permitted without payment of the fees

otherwise provided for in this proclamation.

I agree with the recommendations of the Chairman,

and I deem it necessary and consistent with the national

security objectives of the Trade Expansion Act of 1962,

as amended, that provision be made for a gradual transi-

tion from the existing quota method of adjusting imports

of petroleum and petroleum products to a long-term pro-

gram for adjustment of imports ef petroleum and petro-

leum products through the suspes*on of existing tariffs

and the institution of a system of fees applicable to im-

ports of crude oil, unfinished oils, and finished products,

which fees may be adjusted from time to time.

NOW, THEREFORE, I, RICHARD NIXON, President

of the United States of America, acting under and by

virtue of the authority vested in me by the Constitution

and laws of the United States, including section 232 of

the Trade Expansion Act of 1962, do hereby proclaim

that, effective as of this date, that portion of Proclama-

tion 3279, as amended, beginning with section 1 thereof,

is hereby amended to read as follows:

“Sec. 1(a) In Districts I-IV, in District V, and in

Puerto Rico, no crude oil, unfinished oils, or finished

products may be entered for consumption or withdrawn

from warehouse for consumption, except (1) by or for

the account of a person to whom a license has been issued

by the Secretary of the Interior pursuant to an allocation

made to such person by the Secretary in accordance with

regulations issued by the Secretary, and such entries or

withdrawals may be made only in accordance with the

terms of such license, or (2) as authorized by the Secre-

tary pursuant to paragraph (b) of this section, or (3)

as to finished products, by or for the account of a de-

partment, establishment, or agency of the United States,

which shall not be required to have such a license but

which shall be subject to the provisions of paragraph

(ec) of this section, or (4) as provided in paragraph (c)

of this section, or (5) as otherwise provided in this

proclamation.

(b) The Secretary of the Interior may, in his discre-

tion, authorize entries, without allocation or license, of

small quantities of crude oil, unfinished oils, or finished

products.

(ce) In Districts I-IV, District V, and in Puerto Rico,

no department, establishment, or agency of the United

States shall without prior payment of the fees provided

for in this proclamation, import finished products in ex-

cess of the respective allocations made to them by the

Secretary of the Interior. Such allocations shall, except

as otherwise provided in this proclamation, be within

the maximum levels of imports established in section 2

of this proclamation.

(d) The Secretary may, by regulation, provide that

no allocation or license shall be required in connection

with the transportation to the United States by pipeline

through a foreign country of crude oil, unfinished oils,

or finished products produced in the customs territory of

the United States or, in the event of commingling with

foreign oils of like kind and qualities incidental to such

transportation, of quantities equivalent to the quantities

produced in and shipped from such customs territory.”

“SEC. 2(a) Except as otherwise provided in this proc-

lamation, the maximum level of imports, from sources

other than Canada and Mexico which may be made with-

out prior payment of the fees provided in this proclama-

tion, of crude oil, unfinished oils, and finished products

(other than residual fuel oil to be used as fuel) shall be:

(1) for Districts I-IV, 1,992,000 average barrels per

day per calendar year: Provided, That, in addition to

the foregoing, there may be imported into District I an

average of 50,000 barrels per day of No. 2 fuel oil, manu-

factured in the Western Hemisphere from crude oil pro-

duced in the Western Hemisphere under allocations made

by the Secretary, pursuant to regulations of the Secre-

tary, to deepwater terminal operators currently receiving

allocations and who do not have crude oil import alloca-

tions into Districts I-IV; Provided Further, That, when-

ever the Chairman of the Oil Policy Committee finds

that, because of supply, price, or other considerations,

the requirement that No. 2 fuel oil be manufactured in

the Western Hemisphere from crude oil produced in the

Western Hemisphere is unduly restricting the availability

of such oil for imiportation into District I and is not re-

quired for the national security, he shall so advise the

Secretary who shall then suspend such requirement by

appropriate regulation. No such suspension shall be re-

newed except upon a new finding by the Chairman as

required by the preceding sentence; Provided Further,

That, the Secretary may, by regulation, provide that a

holder of an allocation for the importation of No. 2 fuel

oil may import crude oil produced in the Western Hemi-

sphere in lieu of No. 2 fuel oil, barrel for barrel, and

exchange such crude oil for No. 2 fuel oil.

(2) for District V, 670,000 average barrels per day

per calendar year.

(3) for Puerto Rico 227,221 average barrels per day

per year commencing April 1, 1973; Provided, That no

person who manufactures in Puerto Rico No. 2 fuel oil |

from crude oil produced in the Western Hemisphere shall

incur a reduction of an allocation or be deemed to have

violated a condition of an allocation by reason of a ship-

ment of such oil to a person who holds an allocation of

imports of No. 2 fuel oil into District I and who does not

have a crude oil import allocation into District I; Pro-

vided Further, That, this limitation shall not apply to

long-term allocations of imports into Puerto Rico.

(4) for District I, 2,900,000 average barrels per day

per year, commencing April 1, 1973, of residual fuel oil

to be used as fuel.

(5) for Districts II-IV, 42,000 average barrels per day

per calendar year of residual fuel oil to be used as fuel.

(6) for District V, 75,600 average barrels per day per

calendar year of residual fuel oil to be used as fuel.

(b) Imports of asphalt, ethane, propane, and butanes

shall not be subject to the levels established in this proc-

lamation nor shall any allocation or license be required

for their importation.

(ec) Crude oil may be imported into District I to be

topped for use as burner fuel under such conditions as

the Secretary may, by regulation, provide. The quanti-

ties of crude oil, unfinished oils, and finished products

that may be imported into the United States under the

provisions of this proclamation shall not be reduced by

reason of imports of crude oil used as fuel under this

paragraph.

(d) (1) Except as otherwise provided in this procla-

mation, the maximum levels of imports from Canada of

crude oil and unfinished oils to which license fees are

not applicable shall be:

(i) for Districts I-IV, 960,000 average barrels per day

per calendar year; Provided, That, the Secretary may,

within the limits established by subparagraph (1) of

paragraph (a) of this section, increase the quantity of

crude oil, unfinished oils, and finished products which

may be imported from Canada so long as such increase

is consonant with the purposes of this proclamation.

(ii) for District V, 280,000 average barrels per day

per calendar year; Provided, That, the Secretary may,

within the limits established by subparagraph (1) of

paragraph (a) of this section, increase the quantity of

crude oil, unfinished oils, and finished products which

may be imported from Canada so long as such increase

is consonant with the purposes of this proclamation.

(2) Entries for consumption of imports from Canada

by pipeline may be made until midnight January 15

of the calendar year following the calendar year in which

any license authorizing such imports from Canada was

issued.

(e) Except as otherwise provided in this proclama-

tion, the maximum level of imports from Mexico of crude

oil produced in Mexico and unfinished oils and finished

products produced in Mexico wholly from Mexican crude

oil shall be 32,500 average barrels per day

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