# Appendix — Federal Energy Administration v. Algonquin SNG, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1017%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1976 - **Citation:** 426 U.S. 548 ## Text APPENDIX | | 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. 4 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. 5 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. 6 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 75-1281 DATE FILINGS—PROCEEDINGS : (C)3-21-75 Certified Original Preliminary Record (No 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 (C)6-2-75 4-Appellants’ motion for advancement of 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) (C) 8-19-75 4-Appellees’ reply to appellants’ opposition to motion to stay mandate (p-19) 8 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 9 ~ DATE FILINGS—PROCEEDINGS *(C)9-24-75 4-Appellee’s supplemental response to ap- pellants’ motion to modify stay order {m-23) (Per RB) (C)9-29-75 4-Appeilants’ motion to amend motion to modify stay in aid of Court’s jurisdiction (p-29) (C)9-29-75 4-Appellants’ motion to reconsider this 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 10 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’ 11 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. 12 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 75-1282 DATE FILINGS—PROCEEDINGS (C)3-21-75 Certified Origina] Preliminary Record (No 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) 13 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) (C)9-29-75 4-Appellants’ motion to amend motion to modify stay in aid of Court’s jurisdiction (p-29) (C)9-29-75 4-Appellants’ motion to reconsider this Court’s order of Sept. 29 denying motion to modify stay order in aid of the Court’s jurisdiction (p-29) 14 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 te ee 15 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 16 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 _— 17 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 18 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 19 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 20 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 21 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 24 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 oi 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. 26 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 27 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: Pa 28 (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 (c) leasing of federal lands for oil shale development, 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; (c) increased strip mining for coal, with the ac- 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 = (C) include in every recommendation or report 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— 30 (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... . 31 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) (C) Gii) of NEPA that they “study, develop, and de- 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 34 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. 36 COMMONWEALTH OF MASSACHUSETTS, ET AL., PLAINTIFFS v. 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 87 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, 38 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 40 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 41 is based upon the p complaint and memorandum roposed of points and authorities attached hereto. Dated: February 7, 1975 By /s/ and /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 42 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 43 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 44 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 45 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- 46 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- 47 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 48 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. 49 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; 50 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 51 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— (C) Include in every recommendation or report 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 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 53 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 54 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) (C) of NEPA. Defendant Zarb, as Administrator of 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. 55 _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 56 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: 57 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 58 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 59 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 62 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, v. 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. 64 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. 65 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 66 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 a 67 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- 69 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. 70 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. 71 [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 v. 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- 72 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 73 [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 v. 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- 74 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 William R. Connole #52845 ran a ee ee Ernest C. Baynard, III Ernest C. Baynard, III #17186 One Farragut Square South Washington, D.C. 20006 202-347-8300 ous Attorneys for Plaintiffs 75 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. 76 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 ar [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1017%3A2. Public record. Not legal advice.