COMMON CAUSE v. DEPARTMENT OF ENERGY

Opinion for the Court filed by Senior Circuit Judge BAZELON.

BAZELON, Senior Circuit Judge:

Appellants seek injunctive and declaratory relief directing the Department of Energy (DOE) and the Office of Management and Budget (OMB) to develop an energy conservation plan for buildings owned and leased by the federal government.1 Such a plan is required by 42 U.S.C. § 6361(a)(2) (1976), enacted as part of the Energy Policy and Conservation Act of 1975 (EPCA).2 The district court dismissed for want of standing.3 We agree that appellants do not have standing to pursue this action, though for different reasons than those relied upon by the court below.

I. BACKGROUND

A. The Conservation Plan

Congress enacted EPCA in the wake of the Arab oil embargo of 1973-74. The Act is an omnibus measure that includes a myriad of provisions pertaining to the production, stockpiling, conservation, and pricing of energy resources.4 One of EPCA's provisions, added by House and Senate conferees and codified at section 6361(a)(2), provides:

By executive order, responsibility for developing the ten-year plan was delegated in 1976 to the Federal Energy Administration (FEA);6 FEA's duties were in turn transferred to DOE in 1977.7

Pursuant to section 6361(a)(2), President Carter in 1977 established goals for (1) reducing energy consumption by twenty percent in federally owned existing buildings by 1985; (2) reducing consumption by forty-five percent in federally owned new buildings by 1985; and (3) restricting new federal leasing to buildings that will likely meet or surpass the forty-five percent standard.8 To achieve these goals, the President (1) ordered every federal agency to conduct "energy audits" of buildings under its jurisdiction and to implement systematic life-cycle costing procedures; (2) directed every agency to design an individual ten-year plan to meet the percentage-reduction goals; and (3) instructed DOE to develop, with the concurrence of OMB, guidelines for the individual agency plans.9

In November 1979, DOE issued regulations for the formulation of individual agency plans and for the review of such plans by the Department.10 Included in these regulations are mandatory standards governing improvements in lighting efficiency,11 thermal efficiency,12 insulation,13 restriction of hours,14 thermostat controls,15 retrofitting,16 and other conditions of operation.17 Six months later, DOE, with the concurrence of OMB, published a Preliminary Ten-Year Buildings Plan (Preliminary Plan).18 That document notes federal energy conservation accomplishments since 1975, sets further specific goals for the period 1980-90, and incorporates the DOE guidelines for individual agency plans. The Preliminary Plan provides for periodic updating of both the individual and the overall plans; it also notes that, after evaluation and approval by DOE and OMB, the individual plans will be integrated into the Preliminary Plan to produce a Final Ten-Year Buildings Plan (Final Plan).19

Issuance of the Final Plan has recurrently been delayed by problems in developing the individual agency plans. Of the eighteen agency plans submitted to date, only one was approved by DOE as initially submitted. Ten more were approved after initial disapproval and revision. The other plans are in various stages of formulation and revision with DOE assistance.20

Appellants have not contested DOE's assertions that the buildings conservation program has contributed to significant reductions in agency energy consumption to date.21 Although a number of agency plans have not yet been approved, thereby delaying publication of the Final Plan, DOE's buildings standards, and the procedures outlined in the Preliminary Plan, remain in effect in the interim.22 Thus, independent of the existence of an approved individual plan, every covered agency is governed by DOE's auditing and reporting requirements,23 must observe DOE standards with respect to new construction and leasing,24 and must comply with mandatory lighting, temperature, and other requirements.25

B. The District Court Action

Appellants filed this action on April 3, 1980, requesting declaratory and injunctive relief that would compel DOE and OMB "to develop and implement the Ten Year Plan for energy conservation in federal buildings as required by 42 U.S.C. § 6361(a)(2)."26 The complaint asserts that Common Cause's 220,000 members, "[a]s consumers in the marketplace for energy resources, ... compete with the government" for available supplies.27 Implementation of the ten-year plan, the complaint states, "would reduce energy consumption in federal buildings by at least 31 million barrels of oil per year, at a cost savings of over $900 million per year."28 Citing the government's alleged failure to act on such a plan, the complaint claims as an injury that "plaintiffs have been harmed by suffering a shortage of energy resources and higher energy prices due to consumption of energy by the Federal government which is wasteful and contrary to law."29

DOE and OMB raised a variety of defenses, including, inter alia, that (1) the district court lacked jurisdiction over the subject matter of the complaint, (2) appellants did not have standing, and (3) measures taken pursuant to section 6361(a)(2) had rendered the controversy moot. Without addressing the issue, the district court apparently assumed that it had subject matter jurisdiction.30 After appellants initiated discovery with respect to the mootness issue, however, the district court ordered the parties to focus solely on the question of standing.31

On the government's motion to dismiss, the district court held that appellants lacked standing. The court apparently assumed that judicial relief would lead to reduced government consumption of energy, and focused instead on the question whether such reduction would in turn tangibly benefit the consuming public.32 After surveying recent standing decisions by the Supreme Court and our own court of appeals, the court announced the principle, "established beyond a doubt," that where consumers allege marketplace injury arising from government illegality, they must demonstrate that the government "sufficiently control[s] the relevant market so that relief will not be merely speculative."33 The court concluded that the energy marketplace "is beyond the ability of the defendants to control," noting that "[p]laintiffs, as are we all, are well aware of the myriad forces that cause shortages in the energy marketplace ranging from price rises by OPEC and international politics to the weather. Indeed, the energy resources marketplace is exceedingly complex, if not one of the most complex."34 Finding that government conservation would itself be unlikely to lower prices or increase available supplies, the court dismissed.

II. DISCUSSION

Article III of the Constitution limits the federal judiciary's role to the resolution of "cases or controversies." In its constitutional guise, standing doctrine is one component of this case-or-controversy requirement.35 At its "irreducible minimum,"36 the Article III standing requirement demands that a plaintiff properly allege (1) and "injury in fact" to his own interests, that (2) is "fairly traceable" to the defendant's conduct, and that (3) is sufficiently likely to be redressed in a tangible way by available judicial relief.37

The question of consumer standing presents especially difficult conceptual hurdles. It is settled law that standing may be grounded on a mere "trifle";38 settled, too, that the widespread character of an alleged injury does not demean the standing of those who are in fact injured.39 Yet where injury is alleged to occur within a market context, the concepts of causation and redressability become particularly nebulous and subject to contradictory, and frequently unprovable, analyses.40

The instant controversy, as framed by the parties and the district court, presents a paradigm of this difficulty. The government and the court below view this case as one of third-party causation falling squarely within the ambit of Warth v. Seldin41 and its progeny.42 In such cases, the plaintiff seeks to change the defendant's behavior only as a means to alter the conduct of a third party, not before the court, who is the direct source of the plaintiff's injury. Viewed in this manner, appellants' suit to compel reduction in government consumption is merely designed to leverage third-party fuel suppliers into making pricing and allocation decisions favorable to the consuming public. Appellees argue that because energy is not an elastic commodity, and because the ten-year plan will lead only to the most marginal reduction in overall national consumption, the possibility of effective redress is altogether too speculative to support standing.

Appellants respond that consumption by the federal government, the nation's single largest energy user, has a substantial impact on the energy market.43 They argue that, although many factors combine to produce shortages and high prices of energy products, "each cause is independent and contributes directly to a separate injury."44 In other words, illegal government consumption "contributes to the shortage for consumers no matter how any third party acts or doesn't act, and no matter how many other factors independently contribute to the shortage."45 Appellants therefore rely heavily on "the stuff of the most elementary economic texts":46 a belief that the laws of supply and demand govern, at least to some extent, the operation of the energy marketplace.

The circumstances of the instant case do not require us to wade into this morass of marketplace analyses. The court below focused on the question whether government conservation would result in a pocketbook benefit to the consuming public. That inquiry, however, assumes that available judicial relief in the instant case would be likely to produce further reductions in government energy consumption. Such an assumption is conjectural at best, and therefore cannot support standing.

Appellants concede, as they must, the existence of the DOE building regulations and of the Preliminary Plan.47 Stripped of surplusage, the gravamen of their complaint is therefore that the government's failure to publish the Final Plan violates section 6361(a)(2). In their reply brief and supplemental memoranda, appellants recognize that the precise relief they seek is a judicial decree ordering issuance of the Final Plan.48 We assume, for the sake of standing analysis, that publication of the Final Plan is necessary to achieve full compliance with section 6361(a)(2). We assume, too, that a decree ordering such action would be a proper exercise of judicial power. What we cannot assume, and what appellants have utterly failed to indicate, is how a decree ordering publication of the Final Plan would be likely to lead to tangible additions in federal energy conservation above and beyond those currently being achieved under the regime of the Preliminary Plan.49

The scope of such a decree would perforce be exceedingly narrow. The buildings plan is exempt from the procedural notice-and-comment rulemaking requirements of the Administrative Procedure Act.50 Beyond enumerating six areas that must be addressed in the buildings plan,51 section 6361(a)(2) sets no guidelines for structuring, implementing, or coordinating the plan. Nor does the statute set any targets for reductions in consumption. The thirty-one million barrel conservation figure, cited by appellants in their complaint as the anticipated benefit of a judicial decree, is based on President Carter's energy conservation goals.52 Those goals, however, are entirely the creatures of executive discretion, and could be calibrated at a higher level, or at a much lower level. Given the wide discretion that Congress delegated to the executive branch, the most that a court could decree would be (1) issuance of a Final Plan, that (2) governed buildings owned and leased by the federal government, and (3) included conservation measures addressed to the six areas enumerated in the statute.

Measures taken pursuant to the Preliminary Plan and the DOE regulations already govern both owned and leased property,53 and already address the six enumerated areas.54 It is true that a number of agencies have yet to secure DOE approval of their individual buildings plans. In the interim, however, those agencies must continue to comply fully with DOE regulations, including, inter alia, the auditing and reporting requirements, the leasing and construction restrictions, and the mandatory standards governing lighting, heating, and other conditions of operation.55 Appellants have offered us no reason to believe that the mere embodiment of these regulations in a document denominated "final" would in any way accelerate the reductions in consumption already achieved.

We have combed the record in vain for any plausible assertion by appellants that the current structure of the buildings conservation program falls short of section 6361(a)(2)'s requirements, beyond DOE's failure to publish a "finalized" version of its plan. We found three possible objections to the Preliminary Plan, all proffered in passing by appellants in a motion pertaining to their initial discovery efforts.56 Appellants appeared to suggest, first, that the "decentralized" focus of the plan — requiring individual agency plans in conformity with DOE regulations — may not comport with the concept of a mandatory "government-wide" plan.57 Given the broad discretion Congress gave to the executive branch,58 however, this suggestion is patently frivolous.

Second, appellants questioned the adequacy of the Preliminary Plan's lighting and thermal standards.59 DOE has stated that the Final Plan will include revised lighting and thermal standards;60 mandatory standards are already in effect,61 however, and there is no indication that the final standards will be more stringent. In any event, the proper calibration of those standards is a matter within the executive's discretion.

Finally, appellants queried "whether the current government plan covers federally leased, as well as federally owned, buildings, and if not, why not."62 Reference to the DOE regulations and the Preliminary Plan manifestly demonstrates that the buildings plan fully extends to both current and new federal leasing.63

All that remains, then, is a bare assertion that the Preliminary Plan is "no substitute" for the Final Plan.64 In the absence of any indication that the Final Plan will likely yield tangible, additional savings in consumption beyond those being achieved pursuant to the Preliminary Plan, appellants have failed to meet one of the touchstone components of the standing requirement: a demonstration that the claimed injury is likely to be redressed by available judicial relief.65

The "vitality" of the redressability requirement has been "repeatedly reaffirmed."66 The requirement serves to limit the judicial role to measures that will produce tangible, meaningful results in the real world. By preventing courts from "rummaging aimlessly through the policy decisions of the elected branches in search of defective government action,"67 it acts as an important check upon the power of the judiciary in our scheme of coordinate government branches.68 We would not commend appellees on the glacial pace of their efforts to implement section 6361(a)(2).69 But given (1) the limited scope of available judicial relief, and (2) the range of conservation programs already implemented pursuant to section 6361(a)(2), the question whether publication of the Final Plan will likely lead to further tangible savings is altogether too speculative to support invocation of the judicial power.70 We therefore need not reach the question whether such savings, if realized, would accrue to the pocketbook benefit of the consuming public.71

CONCLUSION

For the reasons set forth above, the district court's judgment dismissing appellants' complaint is

Affirmed.