source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America v. Gary L. ALSTON, Appellant.
    No. 72-1894.
    United States Court of Appeals, District of Columbia Circuit.
    July 13, 1973.

      Seymour M. Chase, Washington, D.C. (appointed by this Court), was on the brief for appellant.
    Harold H. Titus, Jr., U. S. Atty., John A. Terry, James W. Diehm, and Peter K. Mair, Asst. U. S. Attys., were on the brief for appellee.
    Before ROBINSON and WILKEY, Circuit Judges, and FRANK A. KAUFMAN, United States District Judge for the District of Maryland.

       Sitting by designation pursuant to 28 U.S.C. § 292(d).

   PER CURIAM:

Appellant was tried and convicted by a jury of armed robbery (22 D.C.Code §§ 2901 and 3202), assault with intent to commit robbery while armed (22 D.C. Code §§ 501 and 3202), and assault with a dangerous weapon (22 D.C.Code § 502). Appellant contends that his conviction on all charges must be reversed because it was based upon identifications which were allegedly obtained by unconstitutional means.

7. The Validity of the Identification

Appellant was initially identified by the two witnesses from photographs shown them approximately four weeks after the offense. Ten photographs, alike in that they were all obviously arrest pictures, were submitted to the two identification witnesses privately. Both witnesses spontaneously picked out appellant as the robber. There is no allegation that these photographs were displayed in an improperly suggestive manner.

Appellant contends simply that the Sixth Amendment of the United States Constitution guarantees him the right to have counsel present at such an identification. This argument ignores the fact that the identification occurred before anyone (including appellant) was in custody or had been indicted. The Supreme Court has recently held that the critical time for triggering the Sixth Amendment right to counsel at identification is after indictment. See Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). A panel of this court, in United States v. Kirby, 138 U. S.App.D.C. 340, 342, 427 F.2d 610, 612 (1970), explicitly held that there was no right to have counsel present at a photographic identification prior to arrest. This holding was reaffirmed by this court sitting en banc in its recent decision in United States v. Ash, 149 U.S. App.D.C. 1, 11, 461 F.2d 92, 102, cert. granted, 407 U.S. 909, 92 S.Ct. 2436, 32 L.Ed.2d 682 (1972). Most recently, the Supreme Court in its subsequent decision in Ash explicitly held that there was no right to counsel at a photographic identification either before or after arrest. United States v. Ash, 413 U.S. 300, at 321, 93 S.Ct. 2568 at 2579, 37 L.Ed.2d 619 (21 June 1973). In light of this overwhelming authority we hold that appellant had no constitutional right to counsel at his pre-arrest photographic identification.

Appellant urges that even if the court finds that he had no right to counsel, we should reverse because the evidence adduced at trial was such that a reasonable juror must have had a reasonable doubt about his guilt. This contention is based primarily upon the fact that one of the witnesses who testified at trial failed to identify appellant at a lineup. The record shows, however, that one of the witnesses did identify appellant. Both the affirmative identification and the error in identification were brought out before the jury. The jury was thus in a position to evaluate the accuracy and probative value of the witnesses’ identification. There is no indication that the photographic identification or the lineup was improper or in any way tainted the in-court identification. There was sufficient evidence to permit the issue to reach the jury and there is no basis that we can find for disturbing their determination. •

We hold that the identifications, which were the basis for appellant’s conviction, were not improper. Appellant certainly has not shown clear error, which he must do since he made no objection to the identifications at the trial. See Fed.R.Crim.P. 52(b).

In response to a question by the prosecution, a police officer testifying for the Government revealed that appellant had an arrest record. Appellant did not object to this mention at the trial or raise it as a point of error on, appeal. Even though the issue was, not raised, we feel obliged to express our disapproval of the gratuitous introduction of potentially prejudicial information. While the introduction in this case may have been inadverteiit, the prosecution should always be careful to instruct and caution Government witnesses regarding the proper parameters of their testimony. In the context of this case, however, we do not believe that the mention of appellant’s arrest record was reversible error. Hardy v. United States, 119 U.S.App.D.C. 364, 343 F.2d 233 (1964), cert. denied, 380 U.S. 984, 85 S.Ct. 1353, 14 L.Ed.2d 276 (1965); McIntosh v. United States, 114 U.S.App.D.C. 1, 309 F.2d 222, cert. denied, 373 U.S. 944, 83 S.Ct. 1557, 10 L.Ed.2d 700 (1962).

II. Lesser Included Offense

Assault with a dangerous weapon is a lesser included offense of assault with intent to commit robbery while armed. United States v. Benn and Hunt, 155 U.S.App.D.C. 180, 476 F.2d 1127 (1 Dec. 1972) ’; United States v. Wimbush, 154 U.S.App.D.C. 236, 475 F.2d 347 (11 Jan. 1973). We, therefore, vacate the conviction for assault with a dangerous weapon.

III. Conclusion

We vacate appellant’s conviction for assault with a dangerous weapon. The convictions on all other counts are

Affirmed.

      . Prosecutor: Would you please describe the photographs very briefly?
      Witness : They were a group of photographs taken of subjects who had been arrested by the Metropolitan Police Department.
      Tr. at 36.


author: ROBB, Circuit Judge: J. SKELLY WRIGHT, Circuit Judge,

text:
    Maurice SCHICK, Appellant, v. George J. REED, Chairman of the United States Board of Parole, et al.
    No. 72-1508.
    United States Court of Appeals, District of Columbia Circuit.
    Argued June 18, 1973.
    Decided July 23, 1973.
    Rehearing denied Oct. 1, 1973.

      Caryl S. Cole, Washington, D. C., with whom Robert N. Sayler, Washington, D. C., was on the brief, for appellant.
    James W. Diehm, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, and Michael A. Katz, Asst. U. S. Attys., were on the brief, for appellees.
    Before WILBUR K. MILLER, Senior Circuit Judge, and WRIGHT and ROBB, Circuit Judges.
   ROBB, Circuit Judge:

In 1954 the appellant Schick, a master sergeant in the United States Army, was convicted by a court-martial of the premeditated murder of an 8-year old girl, in violation of Article 118 of the Uniform Code of Military Justice. 10 U.S. C. § 918 (1970). The court-martial sentenced Schick to death. In 1960 President Eisenhower commuted the sentence to a dishonorable discharge and imprisonment for life upon the express condition that Schick should “never have any rights, privileges, claims, or benefits arising under the parole and suspension or remission of sentence laws of the United States and the regulations promulgated thereunder governing Federal prisoners confined in any civilian or military penal institution (18 USC § 4201 et seq., 10 U.S.C. 3662 et seq., [sic] 10 USC 871, 874), or any acts amenda-tory or supplementary thereof.” Schick was thereafter committed to the custody of the Attorney General and is now confined in the United States Penitentiary at Lewisburg, Pennsylvania. The United States Board of Parole has declined to consider him for parole although in the absence of the condition attached to the President’s commutation he would be eligible for such consideration. See 18 U.S.C. § 4202; 10 U.S.C. § 858 (1970).

Schick filed this action in the District Court, seeking a declaration of his eligibility for consideration for parole pursuant to 18 U.S.C. § 4202, and an order directing the members of the' Board promptly to consider him for parole. The District Court granted the defendant’s motion for summary judgment upon the ground “that the conditional commutation of plaintiff’s sentence was the result of the exercise by the President of his powers under Article II of the Constitution to grant reprieves and pardons for offenses against the United States, and of his authority as Commander in Chief of the Armed Forces and under the provisions of the Uniform Code of Military Justice”. Schick appeals. We affirm.

In commuting Schick’s sentence the President exercised the authority conferred upon him by Article II, section 2, clause 1 of the Constitution, providing that the President “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” That power includes the authority to commute a sentence of death to imprisonment for life. Biddle v. Perovich, 274 U.S. 480, 47 S.Ct. 664, 71 L.Ed. 1161 (1927). Moreover, it is settled that a pardon or a commutation of a sentence may be granted on condition. Ex parte Grossman, 267 U.S. 87, 120, 45 S.Ct. 332, 69 L.Ed. 527 (1925); Semmes v. United States, 91 U.S. 21, 27, 23 L.Ed. 193 (1875); United States v. Klein, 13 Wall. (80 U.S.) 128, 142, 20 L.Ed. 519 (1871); Ex parte Wells, 18 How. (59 U.S.) 307, 15 L.Ed. 421 (1855); Stroud v. Johnston, 139 F.2d 171, 172 (9th Cir. 1943), cert. denied, 321 U.S. 796, 64 S.Ct. 846, 88 L.Ed. 1085 (1944). The appellant contends, nevertheless, that the condition imposed in this case is illegal and invalid, since it contravenes the statute providing that a prisoner shall be eligible for parole after serving fifteen years of a life sentence. 18 U.S.C. § 4202 (1970).

The courts have stated many times that Congress cannot control or regulate the action of the President in granting pardons or commutations. See Ex parte Grossman, supra; The Laura, 114 U.S. 411, 414, 5 S.Ct. 881, 29 L.Ed. 147 (1885); Ex parte Garland, 4 Wall. (71 U.S.) 333, 380, 18 L.Ed. 366 (1866); Yelvington v. Presidential Pardon & Parole Attorneys, 94 U.S.App.D.C. 2, 4, 211 F.2d 642, 644 (1954); Thompson v. Duehay, 217 F. 484, 487 (D.C.W.D. Wash.1914), aff’d, 223 F. 305 (9th Cir. 1915). Had Congress attempted to fetter the Presidential power by the parole statute a constitutional question might be presented. We think it clear however that Congress had no intention of interfering with the President’s authority, and has not done so. This appears from the history of the parole statute itself, noted by the Attorney General in his opinion, Pardoning Power of the President, 41 Op. Att’y Gen. 251, 255 (1955). The Attorney General said:

As enacted in 1910, section 10 [of the parole statute] provided that nothing in the act “shall be construed to impair the power of the President of the United States to .grant a pardon or commutation in any case.” 36 Stat. 821, 18 U.S.C. (1946 ed.) 723. This provision does not appear in the 1948 revision of title 18 of the U.S.Code, and the Reviser’s Note to section 3570 of that title, dealing with Presidential remission of a sentence, states that the word “pardon” was omitted “as unnecessary in view of the pardoning power of the President under Const. Art. 2, § 2, cl. 1. ‘This power of the President is not subject to legislative control.’ Ex parte Garland, 1866, 4 Wall. 380.” [18 L.Ed. 366]

Turning to the Uniform Code of Military Justice, Art. 71(a), 10 U.S.C. § 871(a), in force at the time of Schick’s sentence, we find this provision:

No court-martiál sentence extending to death or involving a general or flag officer shall be executed until approved by the President. He shall approve the sentence or such part, amount, or commuted form of the sentence as he sees fit, and may suspend the execution of the sentence or any part of the sentence, as approved by him, except a death sentence. (Emphasis added). 64 Stat. 131.

The Uniform Code of Military Justice further provided, Art. 76, (now 10 U.S. C. § 876):

The appellate review of records of trial provided by this code, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this code . shall be final and conclusive, and orders publishing the proceedings of courts-martial and all action taken pursuant to such proceedings shall be binding upon all departments, courts, agencies, and officers of the United States, subject only to action upon a petition for a new trial as provided in article 73 and to action by the Secretary of a Department as provided in article 74, and the authority of the President. (Emphasis added). 64 Stat. 132-333.

From the unambiguous language of these statutes it is apparent that Congress intended to, and did, preserve fully the commutation powers of the President by permitting him to “approve * * * such * * * commuted form of [a] sentence as he sees fit.” It is also apparent that Congress intended that the action of the President, in the exercise of those powers, should be final, conclusive and binding upon all departments, courts, agencies and officers of the United States. In short, the President’s action in this case was not inconsistent with the wishes of Congress as expressed in the parole statute.

Our conclusion on this branch of the case is in accord with the opinion of the Attorney General expressed in Pardoning Power of the President, supra, and with the decisions of the Supreme Court of California in Green v. Gordon, 39 Cal. 2d 230, 246 P.2d 38, cert. denied, 344 U.S. 886, 73 S.Ct. 187, 97 L.Ed. 686 (1952); and Ex parte Collie, 38 Cal.2d 396, 240 P.2d 275 (1952), cert. denied, Collie v. Heinze, 345 U.S. 1000, 73 S.Ct. 1145, 97 L.Ed. 1406 (1953). A like result was reached by the Circuit Court of Appeals for the Tenth Circuit in Hurt v. Moseley, No. 71-1307, decided in an unreported opinion September 13, 1971.

The appellant argues that confinement without the possibility of parole is cruel and unusual punishment. We think there is nothing to this contention. “By common understanding imprisonment for life is a less penalty than death.” Biddle v. Perovich, 274 U.S. 480, 486, 47 S.Ct. 664, 665, 71 L.Ed. 1161 (1927), (Holmes, J.). In light of the atrocious nature of Schick’s offense the commuted sentence is not out of proportion to his crime. We note further that the federal narcotics statute which precluded the possibility of parole in certain cases, 26 U.S.C. § 7237, was repeatedly upheld against attack on Eighth Amendment grounds. See for example, United States v. Williams, 143 U.S.App.D.C. 16, 442 F.2d 738 (1970); United States v. Lozaw, 427 F.2d 911 (2d Cir. 1970). This statute applied even in the cases of prisoners sentenced to serve as much as forty years. We also reject the contention that the commuted sentence denies the appellant the equal protection of the laws. Schick is in no worse position than others of his class who were convicted by a court-martial of premeditated murder and sentenced to death during a period when the death penalty was being enforced.

A contention not made in the appellant’s brief, but advanced at oral argument, is based upon the decision of the Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The argument runs as follows: Furman v. Georgia means that the provision for the death penalty in Article 118, UCMJ, 10 U.S.C. § 918 is invalid. Had this been the law at the time Schick was sentenced, he could have been sentenced only to imprisonment for life. 10 U.S.C. § 918. He then would have been committed to a United States Disciplinary Barracks or to a Federal Penitentiary. 10 U.S.C. §§ 858, 3661. In either event he would now be eligible to be considered for parole. 10 U.S.C. § 3663; 18 U.S.C. § 4202.

Had Schick been under a death sentence when Furman v. Georgia was decided that ruling would have required the excision of the constitutionally invalid sentence. Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973). The flaw in Schick’s argument is that when the Furman case was decided he was not under a death sentence, and there was therefore nothing to excise. Indeed, as a matter of law, a final and effective sentence of death was never imposed upon Schick. Unlike the judgment and sentence of a court, the sentence imposed by the court-martial was not effective until approved by the President, whose action was by statute made a part of the sentencing process. See Article 71(a) UCMJ, 10 U.S.C. § 871 (a). The President did not approve the sentence.

Finally, we are mindful that a pardon or commutation “is a part of the Constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” Biddle v. Perovich, 274 U.S. 480, 486, 47 S.Ct. 664, 665, 71 L.Ed. 1161 (1927). Such an action of the President, explicitly authorized by the Constitution and exercised in a lawful and proper manner, may not be reviewed by a court, and is not to be undone twelve years later upon the basis of ex post facto hypothesis and rationalization. See Ex parte Grossman, 267 U.S. 87, 121-122, 45 S.Ct. 332, 69 L. Ed. 527 (1924).

The judgment of the District Court is affirmed.

J. SKELLY WRIGHT, Circuit Judge,

dissenting:

The United States Board of Parole has refused to consider appellant for parole because the commuted sentence imposed by President Eisenhower includes a “no parole” condition. The sole issue presented is whether this condition is lawful. We are not asked to release appellant, but simply to order the Board to consider his parole application under the same standards as those governing all other federal prisoners.

Appellant brought this action and the District Court considered and decided the case prior to the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). The ease therefore proceeded under the assumption that the death penalty initially imposed by the court-martial was. valid. Although the President has unquestioned power under the Constitution to commute a death sentence, appellant argued that he lacked power to impose a “no parole” condition. As the majority opinion here indicates, the District Court, with good reason, rejected this argument.

But the matter does not end there. WTiile this case was pending on appeal, the Supreme Court issued its decision in Furman, holding that “the imposition and carrying out of the death penalty” constitutes cruel and unusual punishment in violation of the Eighth Amendment. The Supreme Court, to paraphrase its own words, “has not hesitated” to apply Furman retrospectively, without regard to the criteria normally considered in deciding whether to give retrospective effect to a new constitutional rule. Robinson v. Neil, 409 U.S. 505, 508, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973). See, e.g., Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L. Ed.2d 744 (1972); Marks v. Louisiana, 408 U.S. 933, 92 S.Ct. 2849, 33 L.Ed.2d 746 (1972). In my view, retrospective application of Furman to appellant’s case requires us to vacate the death sentence imposed by the court-martial and substitute the only other sentence which lawfully could have been imposed — life imprisonment with the possibility of parole.

I

Although the Furman decision itself simply remanded the death penalty cases for further proceedings without spelling out the nature of those proceedings, all courts considering the issue have recognized that retroactive application of Furman to any given prisoner requires that the death sentence be vacated and the judgment modified to provide for the appropriate alternative punishment specified by statute for the crime for which the prisoner was sentenced to death. See Anderson v. State, Fla., 267 So.2d 8, 9 (1972); In re Baker, Fla., 267 So.2d 331, 332 (1972); Huggins v. Commonwealth, 213 Va. 327, 191 S.E.2d 734 (1972); Sullivan v. State, 229 Ga. 731, 194 S.E.2d 410 (1972). See also People v. Anderson, 6 Cal.3d 628, 657 n. 45, 100 Cal.Rptr. 152, 171 n.45, 493 P. 2d 880, 899-900 n.45 (1972). Where there is but one statutory alternative— for example, life imprisonment — that alternative must be imposed. See People v. Anderson, supra. Where the alternative sentence is discretionary — for example, rape statutes where the alternative to the death sentence is imprisonment for life or for any term of years within the discretion of the court — the case must be remanded to the sentencing court for resentencing. See Anderson v. State, supra, 267 So.2d at 10; Huggins v. Commonwealth, supra. Cf. Sullivan v. State, supra. In other words, the court’s role after Furman is to ensure that the prisoner be treated as if the death sentence was not an available sentence at the time of the original sentencing.

Application of this rule to appellant’s case is quite simple. Article 118 of the Uniform Code of Military Justice, 10 U.S.C. § 918 (1970), under which appellant was convicted of premeditated murder, provides that one so convicted “shall suffer death or imprisonment for life as a court-martial may direct.” A sentence of death was imposed by the court-martial, and its decision was affirmed by both the Board of Review and the United States Court of Military Appeals. Under Furman the death sentence so imposed was unconstitutional and therefore null and void. The only lawful alternative at the time of the original sentencing was a sentence of “imprisonment for life.” That sentence must now be substituted for the original death sentence, and appellant must be treated as if he were sentenced to life imprisonment on the date of his original sentence.

Pursuant to statute, all persons sentenced to imprisonment for life by a court-martial eventually become eligible to be considered for parole, there being no statutory authority for a life sentence without parole. If the prisoner is confined in the United States Disciplinary Barracks, his parole opportunities are governed by the parole authority granted the Secretary of the Army, see 10 U.S.C. §§ 952, 953 (1970), and the regulations promulgated pursuant thereto, and he becomes eligible to be considered for parole after serving 10 years of his sentence. See Headquarters, Department of the Army, Army Regulation 190-26, eh. 1, ¶ 1-4(a)(2) (March 20, 1972). If the prisoner is transferred to a federal penitentiary, his parole opportunities are governed by the same statutes and regulations as are applicable to all other federal prisoners, see 10 U.S.C. § 858 (1970), and he becomes eligible to be considered for parole after serving 15 years of his sentence. See 18 U.S.C. §§ 4202, 4203 (1970). Since appellant has been imprisoned since 1954, he would now be eligible to be considered for parole under either eventuality.

Applying Furman retroactively in this manner, the commutation and condition imposed by President Eisenhower are a nullity, as they were based on an illegal premise. When appellant was sentenced, the options available to the sentencing court were death or life imprisonment with the possibility of parole. Since Furman retroactively strikes the death option, the life option with parole possibilities is retroactively imposed as of the date of sentencing. Any subsequent imposition of a sentence of life imprisonment without parole would, of course, increase appellant’s sentence and thus would be beyond the President’s constitutional authority to grant reprieves and pardons. See Biddle v. Perovich, 274 U.S. 480, 486, 47 S.Ct. 664, 71 L.Ed. 1161 (1927); Ex parte Wells, 59 U.S. (18 How.) 307, 310, 15 L.Ed. 421 (1855).

II

The majority seeks to avoid this logic by noting that appellant was not under a death sentence at the time Furman was decided. But this misconstrues both the Furman decision itself and the doctrine of retroactivity. Furman did more than stop executions, though» of course that was its most dramatic effect. Not only did the Court say that the “carrying out” of the death penalty is unconstitutional, but it also expressly held, in language we must assume was carefully chosen, that “the imposition * * * of the death penalty * * * constitutes cruel and unusual punishment * * 408 U.S. at 239-240, 92 S.Ct. at 2727. (Emphasis added.) Because Furman is totally retroactive, a death sentence imposed before Furman is an illegal sentence. And those who were sentenced to death prior to Furman not only cannot have their sentences executed; they must be resentenced with a lawful sentence.

Nor is it significant that appellant is not now subject to a death sentence, since he is clearly suffering adverse consequences from the prior imposition of an illegal death sentence. Where a new constitutional rule is fully retroactive, the courts must do more than amend the direct consequences of prior violations of the rule. In addition, they must root out as much as possible the adverse, albeit indirect, legal consequences of such prior violations.

A good example of this process may be seen in the Supreme Court’s decisions concerning the right to counsel in state felony trials. That right, recognized in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), was held wholly retroactive in Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963) (direct appeal), and Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971) (habeas corpus). These cases remedied the direct consequences of prior violations of the right to counsel by overruling felony convictions obtained without counsel. But thq retroactivity doctrine extended much further to embrace indirect adverse consequences stemming from prior violations of the right to counsel. In Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), for example, the Court held that an uncounselled felony conviction obtained prior to Gideon could not be used to “enhance punishment” for a subsequent offense through operation of a recidivist statute. Under any other rule, the Court noted, “the accused in effect suffers anew” from the pr e-Gideon deprivation of his right to counsel. 389 U.S. at 115, 88 S.Ct. 258. Similarly, only recently the Court held in Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), that an un-counselled conviction obtained prior to Gideon could not be used to impeach a defendant’s credibility, again noting that the defendant had “suffered anew” from the pr e-Gideon violation, 405 U.S. at 484, 92 S.Ct. 1014.

The present case thus falls squarely within normal concepts of retroactivity. Although appellant is not now under a death sentence, he has suffered and continues to suffer enhanced punishment— the loss of his statutory right to be considered for parole — as a result of an illegally imposed death sentence.

Further guidance may be found in Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), which held that a petitioner could maintain a habeas corpus action challenging his conviction even though his punishment had been alleviated by his being placed on parole. The rationale of that decision was that the petitioner still suffered certain restraints from the underlying conviction, albeit fewer restraints than incarceration. So here, appellant should be permitted to attack his death sentence, even though it has been ameliorated by presidential pardon, because he is still suffering restraints from the underlying illegal sentence.

It is also important to note that appellant’s commuted sentence shares many of the evils of the original death sentence. Like the death sentence, imprisonment for life without. the possibility of parole is inconsistent with the principle that the “rehabilitation of the convict [is] a basic purpose of criminal justice.” Furman v. Georgia, supra, 408 U.S. at 306, 92 S.Ct. at 2760 (Mr. Justice Stewart, concurring). See also id. at 343, 92 S.Ct. 2726 (Mr. Justice Marshall, concurring); Weems v. United States, 217 U.S. 349, 381, 30 S.Ct. 544, 54 L.Ed. 793 (1910). While I agree that the non-rehabilitative nature of life imprisonment without parole is not sufficient to declare that penalty itself cruel and unusual, the relationship it bears to the death penalty certainly has significance for the retroactive application of Fur-man to this case. For in delimiting its retroactive scope, one must keep in mind the evil sought to be remedied by a new constitutional rule. Compare Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966), with Burgett v. Texas, supra.

As indicated earlier, there is no provision in federal law — civilian or military —-for a sentence of life imprisonment without parole. Neither a court-martial nor a judge can impose such a sentence. Congress has ensured that the primary focus of the federal penal system is rehabilitative, looking toward the day when the prisoner can return to society. The death penalty was a glaring exception, and it has now been held illegal. But the same nonrehabilitative exception lives on in muted form in the sentence appellant is now serving.

Ill

I confess a certain difficulty in comprehending the majority’s argument that a sentence of death was never really imposed on appellant because, under the governing statute, the sentence could not be executed until approved by the President. As the majority properly notes elsewhere, the President’s power to grant commutations is a constitutional, not a statutory, power. The President can pardon any conviction for an offense against the United States, whether or not authority to do so is granted by statute. Article 71(a), 10 U.S.C. § 871(a) (1970), which provides that no sentence of death can be executed before approved by the President, simply changes the procedure whereby pardons are granted; it does not affect the substance of the President’s pardoning power. In a civilian death penalty case, the prisoner bears the burden of bringing his ease to the President’s attention for purposes of a commutation. In military death penalty cases, however, the Government was assigned the burden of having a death penalty affirmatively approved. The power of the President in both cases is the same, the only difference being the allocation between the prisoner and the Government of the burden of going forward to invoke that, power. A sentence of death by a court-martial is every bit as final and effective a sentence of death as one imposed by a civilian court.

Rather than support the majority, Article 71(a) demonstrates that the commuted sentence is integrally related to the original death sentence imposed by the court-martial. As the language of Article 71(a) suggests, the sentence approved by the President is not a new sentence, but is simply a “commuted form of the sentence” imposed by the court-martial. It has no basis in law except as such, and is therefore no more lawful than the illegal sentence itself.

It is argued that we should not apply Furman retroactively in the manner suggested because to do so amounts to review by a court of the President’s exercise of his constitutional power to grant pardons and reprieves. But to apply Furman retroactively to appellant in no way indicates any disapproval by this court of the manner in which President Eisenhower exercised his powers of clemency. It was concededly reasonable for both the court-martial and the President not to have foreseen the Furman decision. They quite properly assumed that the death penalty was a lawful sentence. But as Mr. Justice Stewart indicated in Loper v. Beto, supra, 405 U.S. at 484, 92 S.Ct. at 1020:

“* * * ii WOuld surely be unreasonable * * * to expect the judge at Loper’s trial to have anticipated Gideon, just as it would have been unreasonable to have expected the judge at Gideon’s trial to have foreseen our later decision in that case. But a necessary result of applying any decision retroactively is to invalidate rulings made by trial judges that were correct under the law prevailing at the time the judges made them. * * *”

(Footnote omitted.) So here, our substitution of life imprisonment with the possibility of parole for the death sentence as commuted by the President does not disparage in any way the President’s exercise of his pardoning power. Rather it simply reflects the fact that a retroactive change in the law has been made.

With all due respect, the majority’s refusal to follow the Supreme Court’s dictate and treat Furman as totally retroactive seems to represent disagreement with the concept of retroactivity itself. It is suggested that decisions made on the basis of rules then assumed valid are “not to be undone twelve years later upon the basis of ex post facto hypothesis and rationalization.” But the precedents will not tolerate this disparaging view of retroactive application of new constitutional rules. Was it “ex post facto hypothesis and rationalization” when the Supreme Court ruled that the petitioner in Kitchens v. Smith, supra, who had been convicted without counsel some 19 years before Gideon v. Wainwright, was entitled to release as a result of that decision ?

There are all too many for whom the Supreme Court’s opinion in Furman came too late. For them what is done is done. Even for appellant, retroactive application of Furman cannot erase the mental anguish he no doubt experienced during the six years he waited on death row from the time he was initially sentenced to die to the time of the President’s commutation. But I can see no reason for not alleviating those effects of the illegal death sentence imposed on appellant which can still be cured. The crime for which appellant was convicted was atrocious, as the majority notes, though the strong evidence of mental illness as a cause of the crime must temper that observation. Under the law, however, even murderers sentenced to life imprisonment are eligible for parole if they can satisfy the Board of Parole that “there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and * * * [that] such release is not incompatible with the welfare of society.” 18 U.S.C. § 4203 (1970). • In my judgment, Furman requires that appellant be given that chance.

I respectfully dissent.

      . Article 118 (now, 10 U.S.C. § 918) reads : Any person subject to this code who, without justification or excuse, unlawfully kills a human being, when he — •
      (1) has a premeditated design to kill;
      * X * * *
      shall suffer death or imprisonment for life as a court-martial may direct. May 5, 1950, ch. 169 § 1 (Art. 118), 64 Stat. 140.

      . See also Sullivan v. State, 229 Ga. 731, -, 194 S.E.2d 410, 412 (1972) (Jordan, J., concurring specially) : “[T]he life sentence now to be imposed * * * shall be subject to all laws and regulations applicable to such sentence as if it had been rendered on the date of the original sentence.” It has been assumed that prisoners whose sentences were changed from death to life imprisonment pursuant to Furman would become eligible for parole. Thus the legislature of the State of Florida enacted special legislation after Furman purporting to require substitution of a life sentence without parole for those sentenced to death prior to Furman. See Anderson v. State, Fla., 267 So.2d 8, 9 (1972). As the Supreme Court of Florida recognized, this statute raised constitutional problems which the court avoided by resentencing prisoners to life imprisonment prior to the effective date of the new statute. See In re Baker, Fla., 267 So.2d 331, 334-335 (1972).

      . Indeed, the principle of parole was recognized in the military long before parole became available for civilian prisoners. The Act of March 3, 1873, ch. 249, § 6, 17 Stat. 583, a direct predecessor of the current military parole statute, provided: “[The commandant of the military prison] shall take note and make record of the good conduct of the convicts, and shall shorten the daily time of hard labor for those who, by their obedience, honesty, industry, or general good conduct, earn such favors; and the Secretary of War is authorized and directed to remit, in part, the sentences of such convicts, and to give them an honorable restoration to duty in case the same is merited * The first parole statute for civilian prisoners was the Act of June 25, 1910, ch. 387, 36 Stat. 819.

      . The facts of the case were that after a chance encounter and a 10-minute conversation appellant simply grabbed his 8-year-old victim and choked her. There was no evidence of a sexual assault. In his confession to the authorities appellant stated he “just had an uncontrollable urge to kill her” and had done so “just because she was there.”
      The sole defense raised at the court-martial related to the sanity issue. Four Army psychiatrists who had examined appellant in Japan found him legally responsible, but the two Japanese psychiatrists who were appointed to examine him disagreed. On appeal the Court of Military Appeals directed that appellant be transferred to the Menninger Clinic for further examination. All the psychiatrists who examined him there, including Dr. Menninger himself, concluded that mental illness was a cause of the killing. Evidently appellant had a lifelong history of mental illness manifested by periodic episodes of uncontrolled violence and psychotic behavior, and had been admitted for in-patient psychiatric hospitalization on 13 occasions during World War II. Indeed, during a temporary separation from the Army after 1946, he received disability benefits based in part on his psychiatric difficulties.
      Although the reviewing authorities persisted in their affirmance of the court-martial’s finding of responsibility, the record clearly shows that the strong evidence of mental illness played a crucial role in obtaining a presidential commutation.


author: TAMM, Circuit Judge:

text:
    ARIZONA PUBLIC SERVICE COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, The People of the State of California et al., Intervenors.
    No. 72-1636.
    United States Court of Appeals, District of Columbia Circuit,
    Argued April 25, 1973.
    Decided July 30, 1973.

      John'T. Miller, Jr., Washington, D. C., for petitioner.
    William M. Sawyer, Atty., F. P. C. with whom Leo E. Forquer, Gen. Counsel, George W. McHenry, Jr. Acting Sol., F. P. C., were on the brief, for respondent.
    Lawrence Q. Garcia, with whom J. Calvin Simpson, San Francisco, Cal., was on the brief, for intervenors People of the State of California and the Public Utilities Commission of the State of California. Sheldon Rosenthal, San Francisco, Cal., also entered an appearance for inter-venors State of California and the Public Utilities Commission for the State of California.
    Frederick T. Searls, Malcolm H. Fur-bush and Daniel E. Gibson, San Francisco, Cal. were on the brief for intervenor Pacific Gas and Electric Co.

      C. Hayden Ames and Donald J. Richardson, Jr., San Francisco, Cal., were on the brief for intervenor San Diego Gas and Electric Co.
    Thomas F. Brosnan, Washington, D. C., entered an appearance for intervenor Tucson Gas and Electric Co.
    Before WILBUR K. MILLER, Senior Circuit Judge, and TAMM and ROBB, Circuit Judges.
   TAMM, Circuit Judge:

We are asked to review the Federal Power Commission’s [Commission] denial of an application for a certificate of public convenience and necessity filed by El Paso Natural Gas Company [El Paso]. For reasons set forth below, we remand for further consideration of environmental issues.

I

For present purposes, the facts may be summarized briefly. El Paso is a natural gas company within the scope of the Natural Gas Act. It is engaged in the business of producing, purchasing, transporting and selling natural gas for resale and direct consumption, and currently operates the only interstate gas pipeline serving the state of Arizona. Petitioner, Arizona Public Service Company [APS], is a combination gas and electric public utility serving various areas of the state of Arizona. APS purchases the entire supply of gas used in its distribution activities from El Paso in addition to large volumes of gas used directly for its electrical generating plants.

In anticipation of a predicted increase of nearly 75% in electrical load between 1970 and 1976, APS launched what may be described simply as a two-fold plan to enlarge its capacity. On the one hand it currently participates in and intends to participate in several large scale coal-fired plant projects, including those at Four Corners and Page, Arizona. On the other hand, on a smaller scale, in order to provide' for incremental increases in capacity, system reliability (particularly during times of peak demand), and to permanently supplement • the larger coal-fired units, APS plans to install ten gas turbine units with a capacity totaling approximately 450 Mw. These units would be designed to burn oil as well as natural gas, and here lies the heart of the controversy.

At roughly the same time that APS was formulating plans to meet the predicted increase in demand for its services, El Paso was facing a shortage of natural gas available for the interstate market. Accordingly, it advised all customers in its Southern Division System, including APS, that it could not provide significant gas supplies over and above current contract commitments: Similarly, in the recent past, even supplies purchased by those customers under direct sales contracts had occasionally been curtailed. It was with this problem in mind that APS designed its gas turbine units to burn oil as an alternative fuel.

Not yet ready to throw in the towel, however, APS initiated a search for natural gas in Texas, independent of El Paso. The search was fruitful, culminating in an eight year contract with Forest Oil Corporation [Forest] for 50,000,000 Mcf. of natural gas from the Delaware Basin at a rate substantially above that set by the Commission for sales for resale. Since the gas was purchased by APS for direct use in its generators, the transaction was not subject to Commission jurisdiction. Unable to move the gas from Texas to facilities in Arizona, APS then contracted with El Paso to construct additional facilities and transport the gas, a proposal which required approval by the Commission. Accordingly, on March 29, 1971, El Paso filed an application for 'a certificate of public convenience and necessity under Section 7 of the Natural Gas Act which would authorize it to transport up to 32,000 Mcf. of natural gas per day for APS from the Delaware Basin of West Texas to Arizona and to construct associated facilities, including more than 17 miles of additional pipeline. Several months later a hearing was held and on September 7, 1971, the presiding examiner issued his initial decision denying El Paso’s application. On March 22, 1972, the Commission affirmed.

II

Many of the issues typically critical to similar applications were not involved in the present controversy. The parties stipulated:

That the proposal set forth in El Paso’s said application does not raise issues respecting the reserves to be transported for APS; the ability of the proposed facilities to transport such reserves in the manner proposed; the cost of the facilities; the ability of El Paso to finance the proposed facilities; economic feasibility; or the ability of APS to utilize such reserves.

The presiding examiner properly went on to consider several other factors involving the public interest, see FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 81 S.Ct. 435, 5 L.Ed.2d 377 (1961), namely the effect of the purchase on available supply, the end use to which the gas would be put, the preemption of pipeline space that would be involved, the availability of alternative fuel to APS, and the adverse environmental effects that would result from using an alternative fuel such as oil.

The first and dominant factor injected into the balancing process was the price to be paid for the Texas gas, substantially above the field rates set by the Commission, and the effect that it might have upon supply. The Commission reasoned that “approval of the application would result in an incentive for producers to hold their gas off the interstate market [where the lower rates fixed by the Commission prevail] with the objective of packaging it for sale at higher prices.” The result would be adverse both in terms of the price and the amount of gas available for the interstate market. More specifically, .large users with substantial financial resources such as APS would presumably be able to “tie up ever-dwindling gas reserves in the field” to the detriment of small consumers and regulated pipelines. On the other hand, if the Commission refused this and similar applications and presumably dealt with the problem comprehensively, it would successfully induce into ■ the interstate market much of the natural gas now devoted to the non-jurisdictional intrastate market.

The Commission next examined the closely related issues of pre-emption and end use. Admittedly utilization of natural gas as boiler fuel is an “inferior” end use. A frequent corollary is that pipeline facilities tied up for such purposes are thereby pre-empted from being used to transport gas for “superior” uses. The Commission concluded that the failure of any opponent to compare APS’s asserted need for gas to be used for electrical generation with the local need for “superior” uses by residential, commercial and industrial customers meant that “we are left only with the general proposition” and therefore the demerit against APS on this score “cannot be said to be more than slight.” Notably, however, it was still a demerit.

Finally, after carefully considering the argument by APS" that it had no readily available oil reserves and therefore, being landlocked, was subject to the uncertainties inherent in shipment of oil by rail or truck, the Commission found that APS had never in the past been plagued by untimely delivery of oil for use in its boilers. Indeed, it further found that APS had effectively conceded that sufficient supplies of oil could be contracted for, albeit oil with high sulphur content. “[A] fair reading of the record compels a finding that fuel oil is available to APS as an alternative fuel. [N]o plus mark can be said to accrue to the proposal by virtue of the unavailability of an alternative fuel.” At this juncture, fully aware of the limited scope of our review, we find no fault with either the conclusions of the Commission or the process applied to juxtapose them. It is the final consideration, the environmental consequences of the proposed agency action, which compels a remand. „

III

The essence of the Commission’s evaluation of environmental consequences is neatly summarized in the following statement by the presiding examiner :

[I]n terms of El Paso’s required showing under the National Environmental Policy Act of 1969, it is clear that no adverse environmental impact would be occasioned by any phase of the proposal. Actually, it is the other side of the coin — the consequences of not granting the proposal — which is of the greater import here. In brief, the proposal is entitled to a plus mark on this aspect of the proceeding — but one no greater than would be awarded any proposal involving the substitution of gas for oil as boiler fuel.

The examiner went on to reason that if APS were permitted to utilize 50,000,000 Mcf. of natural gas over the eight year period in lieu of the purported 6,000,000 barrels of high sulphur content oil (more than triple APS’s total predicted consumption of oil were the application to be granted), "at some point in time some other community (with ‘rights’, it must be said, equal to those of the Phoenix community) will be required to burn the same quantity of oil with whatever harmful effects flow therefrom.” Without questioning these conclusions, we are at a loss to test their validity. We can find no indication that an environmental impact statement within the meaning of § 102(2) (C) of the National Environmental Policy Act of 1969 [NEPA] was filed. Indeed, every indication is that one was not filed. On the other hand, no reason was given as to why the statement was not required nor is one apparent. Even were we to concede the accuracy of the unsupported one sentence conclusion of the examiner, that no adverse environmental impact would result from the construction of 17 miles of additional pipeline and associated facilities, clearly he was correct in observing that the matter of great import was the failure to grant the application and the resulting consumption of millions of barrels of oil. In short, with one stroke of the pen the Commission arrived at the very conclusions which concerned those enacting NEPA. Without either meeting the procedural requisites of NEPA or providing us with record evidence of the substance from which conclusions were intended to be drawn, the Commission asks us to hold that it has not abused its discretion.

APS argued -vociferously in its brief that the Commission had failed to properly consider environmental factors: .

The National Environmental Policy Act (NEPA) was intended to require a more sensitive reaction from the Commission than it has evidenced in this case. . . . An agency of the Federal Government must comply with the directives set out in Section 102(2) of NEPA . . .

Section 102(2) of NEPA requires, inter alia, that:

all agencies of the Federal Government shall—

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Even were we to accept respondent’s argument that “ [petitioner does not deny that the Commission did consider the appropriate environmental factors, nor does it question the procedures used in making the consideration,” an unlikely conclusion in light of petitioner’s argument as set forth above, it would be to no avail. NEPA makes environmental protection part of the mandate of every federal agency, and each is “not only permitted, but compelled, to take environmental values into account.” Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1112 (1971). The agency may not be permitted to skirt this responsibility, particularly where it may be in the interests of the parties for purposes of expedition or otherwise to overlook these considerations. The minimum requirement for compliance with the “action — forcing” provisions of NEPA is for the agency to supply a statement of reasons why it believes that an impact statement is unnecessary. See Scientists’ Institute for Public Information, Inc. v. AEC, 481 F.2d 1079, 1094-1095 (D.C.Cir. 1973), and Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973).

A statement of reasons will serve two functions. It will ensure that the agency has given adequate consideration to the problem and that it understood the statutory standard. In addition, it will provide a focal point for judicial review of the agency’s decision, giving the court the benefit of the agency’s expertise.

Scientists’ Institute for Public Information, Inc. v. AEC, supra, 481 F.2d at 1095.

Our position today and the remedy we adopt are not without recent precedent. In City of New York v. United States, 337 F.Supp. 150 (E.D.N. Y.1972), Judge Friendly wrote for a unanimous three judge district court in resolving a similar problem. An action was brought to annul an order of the Interstate Commerce Commission [ICC] which authorized abandonment of a railroad line, consisting of approximately 15 miles of track and used predominantly to service New York harbor, on the ground that the ICC had failed to comply with NEPA. Despite the fact that the issue of applicability of an impact statement was not raised before the hearing examiner, and despite the railroad’s convincing argument that it could not economically continue to run the line in question, the court agreed with plaintiff, first noting that the tardiness of the parties cannot excuse an agency from complying with its responsibilities under NEPA, then stating:

To permit an agency to ignore its duties under NEPA with impunity because we have serious doubts that its ultimate decision will be affected by compliance would subvert the very purpose of the Act and encourage further administrative laxity in this area.

Id. at 160. The agency “action” involved was negative, like the present case, in the sense that it resulted not in the construction of new facilities but in the exact opposite. Moreover, the potentially adverse environmental impact related not to the immediate physical features of the project — i. e. the absence of locomotives and personnel from the area or the physical removal of tracks— but to damage “once removed” yet directly attributable to the action — i. e. pollution caused by heavy truck traffic which would replace the railroad. The court remanded to the agency for further consideration of the environmental issue within the framework of NEPA. The agency’s initial order was not vacated and the court retained jurisdiction. We opt for the same remedy, and give the Commission ninety days to conduct whatever further proceedings it deems necessary either for the preparation and circulation of an impact statement or for preparation of a statement of reasons as to why an impact statement is unnecessary. The parties shall serve and file any further briefs within twenty days thereafter.

So ordered.

      . 15 U.S.C. § 717 et seq. (1970).

      . The gas turbine units would ultimately provide about one-fifth of APS’s anticipated 1976 demand of approximately 2200 Mw. See J. A. at 58.

      . A jurisdictional question was raised before the Commission due to the somewhat unusual nature of the sales transaction. The natural gas in question had been sold by Forest to a third party in Texas in an intrastate transaction. In an attempt to avoid any possibility that the APS transaction would be considered a “sale for resale” within the meaning of the Natural Gas Act, simultaneous with its contract with Forest APS also contracted with the third party to release the gas. The jurisdictional issue was resolved by the Commission, has not been raised on appeal, and, in any case, is not pertinent to the issues at hand.
      Referring again to the relevant contracts, Intervenors Pacific Gas and Electric Company and San Diego Gas & Electric Company argue that there is no viable issue before this co'urt. They base their argument on the contract between APS and Forest, which provided that the supplier had certain rights to terminate the agreement, essentially depending upon whether the proposal was implemented as agreed after Commission perusal. Since the gas supply contracts which supported the pipeline failed, the issue concerning the pipeline application must also fail, they reason. This ignores the fact that the contract between APS and El Paso, involving substantial consideration, apparently remains obligatory, as well as the argument by petitioner “that upon remand of this case [APS] will be able to negotiate new gas supply agreements to replace the ones which expired. But so long as the Commission’s order remains a valid precedent, such efforts to obtain a supplementary gas supply remain fruitless.” Reply Brief for Petitioner at 2. In further support of this contention there is record evidence that APS was actively involved in negotiating new supply contracts while the application was pending. See El Paso Natural Gas Co., 47 F.P.C. 896, 914-15 (1972) (Initial Decision of the Presiding Examiner). We therefore do not think the present case is moot. Cf. So. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911).

      . Natural Gas Act § 1, 15 U.S.C. § 717 (1970).

      . 15 U.S.C. § 717f (1970).

      . El Paso Natural Gas Co., 47 F.P.C. 896, 901 (1972) (Initial Decision of the Presiding Examiner). «

      . El Paso Natural Gas Co., 47 F.P.C. 890 (1972).

      . Id. at 903 (Initial Decision of the Presiding Examiner). See Natural Gas Act § 7(e), 15 U.S.C. § 717f(e) (1970).

      . The raw figures associated with the proposal, viewed absolutely, are quite substantial. APS was to pay a total of approximately 510 per Mcf. of natural gas when all outlays are considered. This broke down to payments of approximately $14,000,000 for acquisition of the gas and an additional $10,000,000 for transportation. Expenditures by El Paso necessary to prepare for the increased load were to be in excess of $5,500,000.
      Relatively speaking, the rates were also quite high. The unit price to be paid by APS to the supplier was approximately 290 per Mcf. This considerably exceeded the area price in the Permian Basin area of 16.50 per Mcf. As the presiding examiner reasoned:
      [S]ince the recent history of approved increases in area rates makes the use of the 16.5 cents rate as a standard completely unrealistic and impractical, the ultimate question here is much closer. Nevertheless, even assuming an increase in the Permian Basin area rate to the same level (26 cents per Mcf) recently approved by the Commission in the Southern Louisiana Area, the result must be the same ....
      El Paso Natural Gas Co., 47 F.P.C. 896, 923 (1972) (Initial Decision of the Trial Examiner) (footnote omitted). He accurately observed that even the disparity of approximately 30 was double that in two recent cases where part of the winning rationale was the detrimental effect of the higher price on supply. See FPC v. Transcontinental Gas Pipe Line Corp., 365 U.S. 1, 81 S.Ct. 435, 5 L.Ed.2d 377 (1961) and Transwestern Pipeline Co., 36 F.P.C. 176 (1966), affirmed sub nom. Southern California Edison Co. v. FPC, 387 F.2d 619 (3d Cir. 1967), cert. denied, 392 U.S. 909, 88 S.Ct. 2055, 20 L.Ed.2d 1367 (1968).

      . Since, regarding the issues raised on this appeal, the Commission adopted the findings of the presiding examiner, adding merely a few explanatory notes, the opinions of the examiner and the Commission will be referred to collectively as the Commission. Similarly, we have also considered and dispose of, in the context of this opinion, the issues purportedly raised by the Commission’s denial of rehearing. See Opinion 615-A, 47 F.P.C. - (May 18, 1972).

      . El Paso Natural Gas Co., 47 F.P.C. 896, 899 (1972).

      . Id.

      . Id. at 924.

      . Id. at 926.

      . See, e. g., Permian Basin Area Rate Cases, 390 U.S. 747, 767, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968).

      . El Paso Natural Gas Co., 47 F.P.C. 896, 926-27 (1972).

      . Id. at 927. This logic is not entirely dissimilar to that referred to recently by Senator Philip A. Hart when addressing the apparent problem of a natural gas shortage:
      This shortage — or unavailability of natural gas — may be the keystone of the energy crisis. Back of natural gas caused many users to switch to fuel oil —causing the “fuel oil crisis”. The “fuel oil crisis”, in turn, is blamed for the current “gasoline crisis”. This is explained as the result of the refineries working at producing fuel oil well into the months they would have been turning out gasoline for the anticipated high summer demand.
      It’s a little bit like how for the want of a nail a kingdom fell — of nursery schooldays.
      1973 CCH Trade Regulation Reporter No. 78 (Reports, June 25, 1973).

      . 42 U.S.C.A. § 4332(2) (O) (Supp.1973).

      . The only reference to an impact statement occurs in the Brief for Bespondent at 24, n. 14:
      Neither the Petitioner nor the Commission considers the actual construction of the pipeline to be the proper focus of the environmental concern. However, El Paso did submit the correct environmental impact statement as required by Section 102(2) (C) of NEPA and the Commission’s own regulations in effect at the time of the application.

      . If the passage quoted in note 19 supra contains the reason for the Commission’s failure to prepare an impact statement, it is clearly erroneous. The papers filed by a party concerning environmental effect, whatever else they may be called, are not “a detailed statement by the responsible official” within the meaning of NEPA § 102(2) (C). That issue was resolved, in the context of the very FPC regulations to which respondent refers, in Green County Planning Board v. FPC, 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972). The Commission has clearly recognized this, as evidenced by its adoption of new regulations which provide, inter alia:

      The staff shall make an initial review of the applicant’s report and, if necessary, require applicant to correct deficiencies in the report. If the proposed action is determined to be a major Federal action significantly affecting the quality of the human environment, the staff shall conduct a detailed independent analysis of the action and prepare a draft environmental impact statement ....
      37 Fed.Beg. 28413 (December 23, 1972), amending 18 C.F.R. § 2.82(b) (emphasis added). Similarly, in later promulgating guidelines to assist applicants in preparing these exhibits, the FPC shed further light on their limited purpose:
      These guidelines:
      Identify information to be supplied by applicants to assist the Federal Power Commission staff in an independent assessment of major Federal actions significantly affecting the quality. of the human environment. . . .
      38 Fed.Reg. 6402 (March 9, 1973).

      . Brief for Petitioner at 24-25 (footnotes omitted).

      . We went on to state:
      Section 102 of NEPA mandates a particular sort of careful and informed de-cisionmaking process and creates judicially enforceable duties. The reviewing courts probably cannot reverse a substantive decision on its merits, under Section 101, unless it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values. But if the decision was reached proeedurally without individualized consideration and balancing of environmental factors — conducted fully and in good faith — it is the responsibility of the courts to reverse. As one District Court has said of Section 102 requirements:
      “It is hard to imagine a clearer or stronger mandate to the Courts.”
      449 F.2d at 1115 (footnote omitted).

      . See also Greene County Planning Board v. FPC, 455 F.2d 412, 419 (2d Cir. 1972), where the court stated, with reference to its earlier pre-NEPA decision in Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608 (2A Cir. 1965), cert. denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966) :
      We commented there: “In this case, as in many others, the Commission has claimed to be the representative of the public interest. This role does not permit it to act as an umpire blandly calling balls and strikes for adversaries appearing before it; the right of the public must receive active and affirmative protection at the hands of the Commission.”
      . But NEPA, which was a response to the urgent need for a similar approach in all federal agencies, went far beyond the requirement that the agency merely consider environmental factors and include those factors in the record subject to review by the courts.
      (Footnote omitted.)
      Later, referring to the action-forcing provisions of NEPA § 102(2), the Court stated:
      We view this section as did the District of Columbia Circuit. It is a mandate to consider environmental values “at every distinctive and comprehensive stage of the [agency’s] process.” The primary and nondelegable responsibility for fulfilling that function lies with the Commission.

        Id. at 420.

      . Even ignoring the fact that the environmental impact of denying the application here was greater than the impact of granting it, it is difficult to imagine how the specific procedural mandates of NEPA § 102(2) (O), such as the requirement that the detailed statement accompany the proposal through the existing agency review process and that the agency consider alternatives, could be accomplished if an agency could first arrive at a conclusion on the merits, and if that conclusion was negative, bootstrap itself into the position that an impact statement (or a statement of reasons why one was not required) thus became irrelevant. See Harlem Valley v. Stafford, 360 F.Supp. 1057 (S.D.N.Y.1973) ; C.E.Q., Third Annual Report 246 (August, 1972) ; C.E.Q., NEPA Guidelines § 10(b) & (e), 36 Fed.Reg. 7724, 7726 (1971) ; 38 Fed.Reg. 1696, 1697-99 (1973), amending 40 C.F.R. §§ 6.12, 6.20 & 6.25. Cf. Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970), cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971). In this respect, the Commission’s own recently promulgated regulations are enlightening. As originally proposed, the regulations required a full evaluation of environmental impact only when applications were contested and only when the ultimate decision of the presiding examiner was to grant the application. See 37 Fed.Reg. 23363 (November 2, 1972). After receiving comments on the proposal, the Commission concluded:
      One point raised was that the Commission should evaluate the environmental evidence in its final order on the merits whether or not it approves the application. This point is well-taken.
      37 Fed.Reg. 28414 (December 23, 1972). The regulations were modified accordingly. Id. at 28416.