relating to the promulgation of new source performance standards under
the Clean Air Act governing emissions from coal burning power plants.
At issue was the matter of two meetings with Senator Byrd. Relying
upon D.C. Federation v. Volpe, supra, the court concluded that no
improper congressional pressure was brought to bear on agency decision-
makers:

In the case before us, there is no persuasive
evidence that either criterion [of D.C. Federation]
is satisfied. Senator Byrd requested a meeting in
order to express "strongly" his already well-known
views that the SO2 standards' impact on coal re-
serves was a matter of concern to him. EPA initi-
ated a second responsive meeting to report its
reaction to the reserve data submitted by the
[National Coal Association]. In neither meeting
is there any allegation that EPA made any commit-
ments to Senator Byrd. The meetings did under-
score Senator Byrd's deep concerns for EPA, but
there is no evidence he attempted actively to use
"extraneous" pressures to further his position.
American rightly expect their elected represen-
tatives to voice their grievances and preferences
concerning the dministration of our laws. We
believe it entirely proper for Congressional repre-
senatives vigorously to represent the interests
of their constituents before administrative agen-
cies engaged in informal, general policy rule-
making, so long as individual Congressman do not
frustrate the intent of Congress as a whole as
expressed in statute, nor undermine applicable
rules of procedure. Where Congressmen keep
their comments focused on the substance of the
proposed rule-and we have no substantial evi-
dence to cause us to believe Senator Byrd did
not do so here-administrative agencies are
expected to balance Congressional pressure with
the pressures emanating from all other sources.
to hold otherwise would deprive the agencies of
legitimate sources of information and call into
question the validity of nearly every controver-
sial rulemaking. 40/

As an aside, it is also worth noting that the court concluded that allegations of other communcations following the rulemaking comment

40/ Id., at 409-410.

period but before final agency decision were not unlawful. Similarly, the Court found that communications with the President and White House

staff were not proscribed by law.

41/

In Texas Oil and Gas Corporation v. Watt, the U.S. Court of Appeals for the District of Columbia was again confronted with allegation of improper political pressure from several senators in connection with decisions of the Secretary of Interior to cancel certain oil and gas leases. Although the court concluded that there was a separate ground for setting aside the Secretary's decisions and that there was therfore no need to address the allegations of improper congressional pressure, the court did make the following observation:

We note, however, that while the frequent and forceful communications by several Senators amounted to "pressure" in a general sense and indeed my be regarded as "regrettable", they did not contain anything like the sort of threats that this court has suggested could serve as evidence of improper motivation for an agency's action. 42/

In one of the most recent cases involving improper congressional influence of agency proceedings, the U.S. Court of Appeals for the District of Columbia concluded that insufficient congressional interference resulted from the conduct of congressional investigations and status inquiries to the agency for the purposes of allowing judicial action prior to exhaustion and finality of agency decisions. In Peter

41/ 683 F.2d 427 (D.C. Cir. 1982).

42/ Id., at 434.

Kiewit Sons' Corp v. U.S. Army Corps of Engineers,

43/

the court found

that the conduct of prior congressional investigations and recommendations and status inquiries contemporaneous with an Army contractor debarment proceeding did not evidence "actual or apparent congressional

interference."

It was never shown that Senator Levin contacted
Brigadier General Holdaway directly. Nor was it
established that the Department of Defense officials
who did communicate with Levin actually contacted
Brigadier General Holdaway. Hence, on the record
before us, we have no basis for concluding that the
responsible official's "calculus of consideration"
or "mental decisional processes" were clearly tainted
by congressional pressure. 441

The Court therefore found that the interruption of the administrative proceeding prior to its conclusion was unwarranted by the charge of congressional interference.

451

Even where decision making alternatives are within the discretion of the agency, the question of improper congressional pressure can become an issue with respect to the propriety of agency action. In Standard Oil Company of California v. Federal Trade Commission the question was raised as to whether communications from a congressional office to the FTC in connection a pending FTC investigation had resulted in the issuance of a complaint without proper consideration and insted because the agency had been "goaded into action by outside influences." The court found that if the Commission had not acted pursuant to the stautory criteria and had issued the complaint" solely because of outside pressure" that the Commission had violated the Fedral Trade Commission Act.

43/ 714 F.2d 163 (D.C. Cir. 1983)

44/ Id., at 170.

45/ 596 F.2d 1381 (9th Cir. 1979).

46/

The Third circuit held in SEC v. Wheeling-Pittsburg Corp. that it would not enforce an administrative subpoena in an investigation undertaken because of congressional influence. The Court made this observation:

The duty of the SEC, therefore, is not to
ignore information given to it by congressman,
but to "give congressional comments only as
much deference as they deserve on the merits."
An administrative agency that undertakes an
extensive investigation at the insistence of
a powerful United States Senator "with no
reasonable expectation" of proving a viola-
tion and then seeks federal court enforcement
of its subpoena could be found to be using
the judiciary for illicit purposes. We need
not lend the processes of the federal courts
to aid such behavior. 47/

Wheeling-Pittsburg involved extensive communications between a Senate office and the Commission staff over the course of several months.

However, not every Congressional investigation which may improperly influence and agency proceeding is prejudicial. For example, in American

48/

Public Gas Association v. Federal Power Commission, the court reviewd

allegations of congressional influence in connection with an FPC rate proceeding as the consequence of questioning before an oversight subcommittee of the House Interstate and Foreign Commrce Committee. There the FPC had already concluded one proceeding, which was the subject of Congressional questioning concerning the legal rationale. The allegation of congressional influence involved a subsequent modification of the order of the first proceeding. The court concluded that the parties to the second proceeding had waived their opportunity to object to con

gressional influence by failing to object prior to the rehearing by the.

Commission.

In a similar vein, the decision in Gulf Oil corp. v. Federal Power 491

Commission held that questioning as to the choice of administrative alternatives by Subcommittees of the House Commerce Committee was not

undue influence.

49/ 563 F.2d 588 (3d Cir. 1977), cert. denied., 435 U.S. 911 (1978).