Form of Consultation Required for Presidential Decisions Under the Public Utility Regulatory Policies Act of 1978 ( 1979 )

November 8, 1979
79-81 MEMORANDUM OPINION FOR THE
ASSISTANT DIRECTOR, DOMESTIC POLICY
STAFF
President—Consultation—Form—Public Utility
Regulatory Policies Act of 1978 (§ 507(a)(1),
43 U.S.C. § 2007(a)(1))
Title V of the Public Utility Regulatory Policies Act of 1978, 43 U.S.C.
§§ 2001-2012, is designed to expedite Federal action on proposed means of
transporting oil from the West Coast to other parts of the United States.
The Secretary of the Interior, with advice from other Federal agencies,
reviews proposals and makes recommendations to the President. Id. § 505,
43 U.S.C. § 2005. Then the President, “ after consulting with the
Secretaries of Energy, the Interior, and Transportation,” decides whether
to approve a proposal and require expedited treatment. Id., § 507; 43
U.S.C. § 2007. You have asked us for advice about the form of consulta­
tion required.
Consultation, of course, is an exchange of views. We believe that the
statute permits the President to choose the form of exchanging views that
he considers appropriate. Nothing in the words or the structure of the
statute suggests that Congress intended to require a particular form of
consultation. Nor does the legislative history; neither the conference com­
mittee, which added § 507, nor the Senate, which added most of what
became Title V as a floor amendment, see 123 CO N G R E SSIO N A L R e c o r d
S. 16491-96, S. 16498-502 (daily ed., Oct. 6, 1977), mentioned the Presi­
dent’s duty to consult.1 Several other statutes require the President to con­
sult with the executive branch officials before making a decision. See, e.g.,
'U nder the am endm ent added on the Senate floor, the Secretary o f the Interior was to
make the final decision. The conference comm ittee did not say why it assigned that function
to the President, but it did emphasize that the President should take certain environmental
factors into account. S. Rept. 1292, 95th C ong., 2d sess. 108 (1978). O ne might infer that
Congress wanted the President to decide so that a wider range o f policies could be
considered.
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12 U.S.C. § 36 note; 42 U.S.C. §§ 6272(c)(l)(A)(iii), 6272(e); 49 U.S.C.
§ 1531 note; 42 U.S.C. § 5155(a); see also 50 U.S.C. App. § 468(a)
(eliminated by Reorganization Plan No. 3 of 1953, § 5(a)). None of these
prescribes a form of consultation in either its text or its legislative history.
See, e.g., S. Rept. 1073, 95th Cong., 2d sess. 19 (1978).2 If some habitual
form of consultation had developed under these other provisions, and
Congress, in enacting § 507, mandated that form, there would be less flex­
ibility than we believe inheres in § 507.
Indeed, certain features of § 507 affirmatively suggest that Congress in­
tended not to prescribe any particular form of consultation. For example,
when read in conjunction with the Administrative Procedures Act, § 507
plainly permits either an oral or a written exchange of views. Compare
§ 507(a)(1), 43 U.S.C. § 2007(a)(1), with 5 U.S.C. § 554(a). Similarly, by
requiring the President to make certain findings and explanations, see
§ 507(c), 43 U.S.C. § 2007(c), Title V suggests that no other for­
malities—such as a written record of the consultation—are necessary. See,
Camp v. Pitts, 411 U.S. 138, 143 (1973); see also, United States v. Nixon,
418 U.S. 683, 705-13 (1974). And the Supreme Court has recently em­
phasized that agencies have considerable discretion to decide which pro­
cedures to follow in making the decisions with which they are charged.
See, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense
Council, Inc., 435 U.S. 519, 524-25 (1978). For these reasons, we believe
that Title V permits the President to choose whatever form of consultation
he considers appropriate.
Jo h n M . H armon
Assistant A ttorney General
Office o f Legal Counsel
'O ther statutes require the President to consult with Congress or with Members o f C on­
gress before making certain decisions. See, e.g., 50 U .S.C . § 1542 (W ar Powers Resolution).
But since the President’s relationship to executive branch officials differs from his relation­
ship to Congress, any established practices under these statutes do not control the interpreta­
tion o f provisions like § 507.
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