Thermal Ecology Must Be Preserved v. The Atomic Energy Comm'n, 433 F.2d 524 (D.C. Cir. 1970). · Go Syfert
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Thermal Ecology Must Be Preserved v. The Atomic Energy Comm'n, 433 F.2d 524 (D.C. Cir. 1970). Cases Citing This Book View Copy Cite
93 citation events (4 in the last 25 years) across 15 distinct courts.
Strongest positive: Independent Petroleum Ass'n of America v. Babbitt (dcd, 1998-02-13)
Treatment trajectory · 1970 → 2026 · click a year to view as-of
1970 1998 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
discussed Cited as authority (rule) Independent Petroleum Ass'n of America v. Babbitt
D.D.C. · 1998 · confidence medium
This is “part of the price we pay for the advantages of an administrative process” and preferable to having the process “clogged if there were interlocutory appeals to the courts.” Association of National Advertisers, 627 F.2d at 1178 (quoting Thermal Ecology Must Be Preserved, 433 F.2d at 526.) II.
discussed Cited as authority (rule) Cities of Anaheim and Riverside, California v. Federal Energy Regulatory Commission, Southern California Edison Company, Intervenor (2×)
D.C. Cir. · 1982 · confidence medium
The denial of interlocutory appeals goes on the assumption that appeals from final orders are realistic and effective.” Thermal Ecology Must Be Preserved v. Atomic Energy Commission, 433 F.2d 524, 526 (D.C.Cir. 1970).
discussed Cited as authority (rule) Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Commission, and the United States of America, (Two Cases)
D.C. Cir. · 1982 · confidence medium
Essentially, NRDC’s arguments challenge the decision of the Commission to limit the procedures available in the NFS-Erwin proceeding by invoking the “military functions” rule. 13 Ordinarily, however, “[a]n agency’s procedural or evidentiary rulings in the course bf a proceeding do not constitute a final order justifying judicial review except in extreme instances where the action is held to constitute an effective deprivation of appellant’s rights.” Thermal Ecology Must Be Preserved v. Atomic Energy Commission, 433 F.2d 524, 526 (D.C.Cir. 1970). 14 Limiting at the outset the proc…
discussed Cited as authority (rule) Gulf Oil Corporation v. United States Department of Energy (2×)
D.C. Cir. · 1981 · confidence medium
(Emphasis in original.) See also Thermal Ecology Must Be Preserved v. Atomic Energy Commission, 433 F.2d 524, 526 (D.C.Cir.1970) (“An agency’s procedural or evidentiary rulings do not justify judicial review except in extreme instances where the action is held to constitute an effective deprivation of appellant’s rights”). 89 In sum, we have here a combination of (1) serious allegations originating in the agency itself of document destruction and prohibited ex parte communications between adjudicator and enforcement counsel, (2) backed by admissions of agency personnel that some such a…
cited Cited as authority (rule) Merrill Lynch, Pierce, Fenner & Smith, Inc. v. National Association Of Securities Dealers, Inc., Et Al.
5th Cir. · 1980 · confidence medium
Thermal Ecology Must Be Preserved v. Atomic Energy Commission, 433 F.2d 524, 526 (D.C.
cited Cited as authority (rule) Merrill Lynch, Pierce, Fenner & Smith, Inc. v. National Ass'n of Securities Dealers, Inc.
5th Cir. · 1980 · confidence medium
Thermal Ecology Must Be Preserved v. Atomic Energy Commission, 433 F.2d 524, 526 (D.C.
discussed Cited as authority (rule) People's Counsel v. Public Service Commission
D.C. · 1980 · confidence medium
“An agency’s procedural or evidentia-ry rulings in the course of a proceeding do not constitute a final order justifying judicial review except in extreme instances where the action is held to constitute an effective deprivation of appellant’s rights.” Thermal Ecology Must Be Preserved v. Atomic Energy Commission, 139 U.S.App.D.C. 366, 368 , 433 F.2d 524, 526 (1970).
discussed Cited as authority (rule) Association of National Advertisers, Inc. v. Federal Trade Commission Kellogg Company, a Corporation v. Federal Trade Commission Chocolate Manufacturers Association of the United States of America, Inc. v. Federal Trade Commission. Toy Manufacturers of America, Inc. v. Federal Trade Commission
D.C. Cir. · 1979 · confidence medium
Such reticence is "part of the price we pay for the advantages of the administrative process." Thermal Ecology Must be Preserved v. Atomic Energy Commission, 139 U.S.App.D.C. 366, 368 , 433 F.2d 524, 526 (D.C.Cir. 1970).
discussed Cited as authority (rule) Association of National Advertisers, Inc. v. Federal Trade Commission
D.C. Cir. · 1979 · confidence medium
Such reticence is “part of the price we pay for the advantages of the administrative process.” Thermal Ecology Must be Preserved v. Atomic Energy Commission, 139 U.S.App.D.C. 366, 368 , 433 F.2d 524, 526 (D.C.Cir. 1970).
discussed Cited as authority (rule) Natural Resources Defense Council, Inc. v. The United States Nuclear Regulatory Commission
2d Cir. · 1976 · confidence medium
Respondents also cite the rule that an agency's procedural or evidentiary rulings made in the course of a licensing proceeding are not reviewable except in extraordinary circumstances not present here; see Ecology Action v. Atomic Energy Commission, 492 F.2d 998, 1001 (2d Cir. 1974). 52 The cases relied upon by respondent for the proposition that the order below is not reviewable relate primarily to refusals to review agency rulings made in the course of an individual licensing proceeding; see Ecology Action,supra; Citizens for a Safe Environment, supra; Thermal Ecology Must be Preserved v. At…
discussed Cited as authority (rule) Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Commission
2d Cir. · 1976 · confidence medium
The cases relied upon by respondent for the proposition that the order below is not reviewable relate primarily to refusals to review agency rulings made in the course of an individual licensing proceeding; see Ecology Action, supra; Citizens for a Safe Environment, supra; Thermal Ecology Must be Preserved v. Atomic Energy Commission, 139 U.S.App.D.C. 366 , 433 F.2d 524, 525-26 (1970) (per curiam).
discussed Cited "see" Gibbs v. Department of the Interior
D.D.C. · 2014 · signal: see · confidence high
See Thermal Ecology Must Be Preserved v. Atomic Energy Comm’n, 433 F.2d 524 (D.C.Cir.1970) (per curiam) (declining to intervene in ongoing agency proceedings where no final order had been issued); Connor-Stokes v. Ishimaru, No. 09-0786, 2010 WL 1687952 , at *1 (D.D.C.
cited Cited "see" Connor-Stokes v. Ishimaru
D.D.C. · 2010 · signal: see · confidence high
See Thermal Ecology Must Be Preserved v. Atomic Energy Comm'n, 433 F.2d 524 , 526 (D.C.
discussed Cited "see" State v. Thomas (2×)
Tex. · 1989 · signal: accord · confidence high
Accord, Thermal Ecology Must Be Preserved v. Atomic Energy Commission, 433 F.2d 524, 526 (D.C.Cir.1970).
cited Cited "see, e.g." Coastal States Gas Corp. v. Department of Energy
D. Del. · 1980 · signal: see, e.g. · confidence low
See, e. g., Thermal Ecology Must Be Preserved v. Atomic Energy Commission, supra, 433 F.2d at 526 .
Retrieving the full opinion text from the archive…
Thermal Ecology Must Be Preserved, an Unincorporated Association, Concerned Petitioning Citizens, an Unincorporated Association, the Michigan Steelhead and Salmon Fishermen's Association, an Unincorporated Association, Michigan Lake and Stream Associations, Inc., a Non-Profit Corporation, and Sierra Club
v.
The Atomic Energy Commission and the United States of America
24458_1.
Court of Appeals for the D.C. Circuit.
Jul 20, 1970.
433 F.2d 524
Cited by 27 opinions  |  Published

433 F.2d 524

2 ERC 1379, 139 U.S.App.D.C. 366, 1
Envtl. L. Rep. 20,078

THERMAL ECOLOGY MUST BE PRESERVED, an unincorporated
association, Concerned Petitioning Citizens, an
unincorporated association, the Michigan Steelhead and
Salmon Fishermen's Association, an unincorporated
association, Michigan Lake and Stream Associations, Inc., a
non-profit corporation, and Sierra Club, Petitioners,
v.
The ATOMIC ENERGY COMMISSION and the United States of
America, Respondents.

No. 24458.

United States Court of Appeals, District of Columbia Circuit.

July 20, 1970.

Mr. Allan I. Mendelsohn, Washington, D.C., was on the motion for petitioners.

Mr. Edmund B. Clark, Attorney, Department of Justice, entered an appearance for respondents.

[*~524]1

Before LEVENTHAL, TAMM[1] and WILKEY, Circuit Judges, in chambers.

ORDER

2

On consideration of petitioners' motion for a temporary stay pursuant to Title 28 U.S.C. 2349(b), and of the affidavits filed with respect thereto, it is

3

Ordered by the Court that petitioners' aforesaid motion for a temporary stay is denied.

PER CURIAM:

4

Petitioners seek a stay of hearings conducted by the Atomic Energy Commission for the purpose of determining whether Consumers Power Company should be licensed to produce electric power, on the ground that the Commission ruling denying their motions effectively precludes them from offering evidence of thermal pollution at those hearings.

5

The court is of the view that petitioners do not make out a case for a stay of the administrative proceedings under way. No final order has been entered by the Commission. The order on the license application may deny the license feared by petitioners. If the Commission should grant a license, and it is later determined that this reflected legal error in the failure of the Commission to consider the issue of thermal pollution and to receive material evidence duly proferred, that would be ground for vacating the order and remanding for de novo consideration. City of Pittsburgh v. Federal Power Commission, 99 U.S.App.D.C. 113, 237 F.2d 741 (1956); Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2d Cir. 1965), cert. denied, Consolidated Edison Co. of New York v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966). A stay can be granted by the court as an incident to review of the final order.

6

An agency's procedural or evidentiary rulings in the course of a proceeding do not constitute a final order justifying judicial review except in extreme instances where the action is held to constitute an effective deprivation of appellant's rights. National Airlines, Inc. v. Civil Aeronautics Board, 129 U.S.App.D.C. 180, 392 F.2d 504 (1968). An order denying intervention would be reviewable, see Public Service Commission of New York v. Federal Power Commission, 109 U.S.App.D.C. 66, 284 F.2d 200 (1960). In the present case petitioners have been granted the status of intervenors, and their complaint is from the announced refusal to accept evidence along the line proferred. If the Commission persists in excluding such evidence, it is courting the possibility that if error is found a court will reverse its final order, condemn its proceeding as so much waste motion, and order that the proceeding be conducted over again in a way that realistically permits de novo consideration of the tendered evidence. But the availability of relief from the final order granting a certificate is sufficient to preclude the ruling denying admission of evidence from being considered a final order. The possibility that an agency may make an error that is beyond the effective reach of a court is part of the price we pay for the advantages of an administrative process. That process would, in the judgment of Congress, be clogged if there were interlocutory appeals to the courts.

[*~525]7

The denial of interlocutory appeals goes on the assumption that appeals from final orders are realistic and effective. Courts can take steps to insure that in the event of a court order reversing and remanding a final order for de novo consideration of rejected evidence and issues, the agency will make a bona fide attempt to provide the de novo consideration contemplated by the court, rather than merely rubber stamping and perpetuating its first order. Braniff Airways, Inc. v. Civil Aeronautics Board, 126 U.S.App.D.C. 399, 379 F.2d 453 (1967).

1

Circuit Judge Tamm did not participate in the order and opinion