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PEOPLE OF STATE OF ILL. EX REL SCOTT v. LANDRIEU
November 10, 1980
PEOPLE OF THE STATE OF ILLINOIS EX REL. WILLIAM J. SCOTT, ATTORNEY GENERAL OF THE STATE OF ILLINOIS, PLAINTIFF,
MOON LANDRIEU, SECRETARY OF THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
William J. Scott, former Attorney General of the State of
Illinois, filed this action on behalf of the People of the State
of Illinois and (by way of Amended Complaint) on behalf of the
State itself*fn1 against Secretary Moon Landrieu ("Landrieu" or
the "Secretary")*fn2 of the United States Department of Housing
and Urban Development ("HUD") to require Landrieu to promulgate
certain solar heating and cooling technology regulations under
42 U.S.C. § 5506. Landrieu filed a motion to dismiss or in the
alternative for summary judgment. Illinois has also filed a
motion for summary judgment. For the reasons stated in this
memorandum opinion and order, Landrieu's motion to dismiss is
granted and Illinois' motion for summary judgment is denied.
On September 3, 1974 the Solar Heating and Cooling
Demonstration Act of 1974, 42 U.S.C. § 5501 et seq. (the
"Act"), was enacted. Its stated purpose was "to provide for the
demonstration within a three-year period of the practical use of
solar heating technology, and to provide for the development and
demonstration within a five-year period of the practical use of
combined solar heating and cooling technology."
42 U.S.C. § 5501(b). Under the Act, the Secretary is required to:
1. promulgate interim performance criteria for both
solar heating and cooling components to be used in
residential dwellings "as soon as possible after
September 3, 1974" (42 U.S.C. § 5504, 5505);
2. establish demonstration programs in which solar
heating and cooling systems are to be installed in
a number of buildings and monitored over a
five-year period (42 U.S.C. § 5503(d), 5504(e));
HUD has not yet published definitive performance criteria and
certification procedures ("regulations"). Illinois alleges that
its failure to do so violates the Act and requests the Court to
issue a writ of mandamus or a mandatory injunction directing
Landrieu to promulgate those regulations within ninety days of
the date of judgment.*fn3 Illinois' claim is predicated on the
contention that as major consumers of fuel and energy supplies,
both the people and the State of Illinois have been "deprived of
an adequate supply of a cheap, viable and environmentally
beneficial fuel" by Landrieu's failure to comply with the
statute, since promulgation of the regulations would stimulate
commercial solar energy development.
Landrieu urges dismissal on two grounds. First he asserts that
Illinois lacks standing to bring this action as parens patriae
on behalf of its citizens and lacks standing to sue on its own
behalf under general constitutional principles of standing.
Second, Landrieu also claims under Fed.R.Civ.P. 12(b)(6) that
Illinois' Amended Complaint fails to state a claim upon which
relief can be granted.
Massachusetts v. Mellon, 262 U.S. 447, 485-86, 43 S.Ct. 597,
600-601, 67 L.Ed. 1078 (1923), is a direct bar to a state's
efforts to sue the United States — to act as parens patriae —
to enforce the rights of its citizens in their relationships with
the federal government:
We come next to consider whether the suit may be
maintained by the State as the representative of its
citizens. To this the answer is not doubtful . . .
[T]he citizens of Massachusetts are also citizens of
the United States. It cannot be conceded that a
State, as parens patriae, may institute judicial
proceedings to protect citizens of the United States
from the operation of the statutes thereof. While the
State, under some circumstances, may sue in that
capacity for the protection of its citizens
(Missouri v. Illinois, 180 U.S. 208, 241, 21 S.Ct.
331, 343, 45 L.Ed. 497), it is no part of its duty or
power to enforce their rights in respect of their
relations with the Federal Government. In that field
it is the United States, and not the State, which
represents them as parens patriae, when such
representation becomes appropriate; and to the
former, and not to the latter, they must look for
such protective measures as flow from that status.
Thus as stated in 13 Wright, Miller & Cooper Federal Practice
and Procedure: Jurisdiction § 3531, at 233 (1975):
It has been clearly ruled that states may not as
parens patriae assert the rights of their citizens
against the federal government, since the federal
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