Authority of the Attorney General to Pass on the Sufficiency of Title to Lands Acquired by the Department of Energy for the Strategic Petroleum Reserve

August 28, 1979
79-63 MEMORANDUM OPINION FOR THE
GENERAL COUNSEL, DEPARTMENT OF
ENERGY
Real Property—Title—Authority of the Attorney
General (40 U.S.C. § 255)—Strategic Petroleum
Reserve
This memorandum responds to your request for our opinion with
respect to the application and interpretation o f certain Departm ent of
Justice regulations in connection with a potential real property transaction
relating to the Strategic Petroleum Reserve (SPR) under the Energy Policy
and Conservation Act o f 1975 (EPCA), 42 U.S.C. § 6201, et seq. The reg­
ulations in question (which are unpublished) set forth the standards pursu­
ant to which the Attorney General exercises the authority, conferred on
him by § 355 o f the Revised Statutes, 40 U .S.C . § 255 (hereinafter § 255),
to pass on the sufficiency o f title to lands to be acquired by the United
States.1 As we understand it, you wish to know whether § 255 applies to
transactions for the SPR and, if so, whether under the regulations the
transaction in question should be approved. For the reasons that follow, it
is our conclusion that your D epartm ent’s real property transactions with
respect to the SPR must be subjected to the Attorney General’s review
process contem plated by § 255. It is our further conclusion that the appli­
cation o f the regulations implementing § 255 requires disapproval o f the
transaction outlined in your request.
Although the statutory scheme o f the EPCA is not a simple one, an un­
derstanding o f its several central provisions is im portant to a resolution of
the issues involved. Section 154(a) o f the EPCA , 42 U .S.C . 6234(a), m an­
dates the establishment o f locations for the storage o f petroleum products
'Section 255 provides in pertinent part:
Unless the A ttorney General gives prior written approval o f the sufficiency o f the title to
land for the purpose for which the property is being acquired by the United States,
public money may not be expended for the purchase o f the land or any interest therein.
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(known as the SPR). Under § 159(f) the Secretary of Energy is authorized,
“ to the extent necessary or appropriate to implement” the SPR program, to:
(B) acquire by purchase, condemnation, or otherwise, land
or interests in land for the location of storage and related
facilities;
(C) construct, purchase, lease, or otherwise acquire storage
and related facilities;
(D) use, lease, maintain, sell, or otherwise dispose of
storage and related facilities acquired pursuant to this part;
* * * * * * *
(F) store petroleum products in storage facilities owned and
controlled by the United States or in storage facilities owned by
others if such facilities are subject to audit by the United States;
(G) execute any contracts necessary to carry out the provi­
sions o f such Strategic Petroleum Reserve Plan, Early Storage
Reserve Plan, proposal or amendment * * * .
As defined in § 152(4), 42 U.S.C. 6232(4), an “ interest in land” which the
Secretary is authorized to acquire under (B) includes
any ownership or possessory right with respect to real property, in­
cluding ownership in fee, an easement, a leasehold, and any sub­
surface or mineral rights.
Section 154(b) provides for submission o f an SPR plan to Congress, which
must detail the Secretary’s plans for designing, constructing, and filling the
Reserve. All proposals to acquire land and construct facilities must be in­
cluded in the plan. Under § 159, 42 U.S.C. § 6239, the plan does not
become effective and may not be implemented unless neither House o f C on­
gress has disapproved it within 45 days (or both Houses affirmatively ap­
prove it). Although amendments may be made to the plan, these too must
be submitted to Congress for its review prior to taking effect. We under­
stand that the real property transaction that is the subject o f your request
would, pursuant to this requirement, ultimately be submitted to Congress as
an amendment to the existing SPR plan.
Under § 255, the Attorney General has the responsibility for passing on
the “ sufficiency” o f the title being acquired by the United States whenever
public money is expended for the purchase o f land “ or any interest
therein.” While § 255 was codified in its present form in 1970, the Attorney
General has been vested with the responsibility o f approving titles to land
acquired by the United States or its agencies under successive statutes since
the mid- 19th century.2 We have been informed that the Land and
'T he earliest statutory precursor o f § 255, enacted in 1841, 5 Stat. 468, made it “ the duty of
the Attorney General to examine into titles o f the land or sites for the purpose of erecting
thereon armories, and other public works or buildings * *
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Natural Resources Division (Land Division) o f this Department has con­
sistently taken the position that if Congress wishes to establish exceptions
to the requirement o f Attorney General approval under § 255, it must do
so explicitly.
The regulations implementing § 255 require a determination “ that the
proposed interest in property is in accord with the authorizing legislation
and that such interest is sufficient for the purposes for which the property
is being acquired.” Regulation 5(a). In administering these regulations,
the Land Division has generally taken the position that where permanent
improvements o f substantial value are to be erected, the only interest suffi­
cient to protect the Federal investment is a full fee simple title. Thus, Reg­
ulation 5, “ Character o f Title Which May be A pproved,” provides in per­
tinent part as follows:
(b) * * * [T]here may be restrictive covenants or agree­
ments in conveyances to prior owners under which the title
might revert to the grantors in such deeds upon the use o f the
property for an unauthorized purpose or for other reasons.
When permanent type improvements or improvements o f
substantial value are to be erected on lands, a defeasible title to
such lands is not acceptable and must not be approved, unless
the estate is clearly authorized by the Congress.
(c) Other covenants and conditions in the deeds to the
United States or in prior deeds may limit the use o f the prop­
erty in a manner which may prevent the sale and disposition of
the property under laws relating to the disposition o f surplus
property so as to prevent the recovery o f a substantial portion
o f the Governm ent’s investment in the property. Titles are not
acceptable which are subject to such covenants and conditions
in the absence o f clear authorizing legislation.
* * * * * * *
(0 A defeasible fe e title to land may be acquired by pur­
chase or donation when no permanent improvements are to be
erected thereon, provided that the statute authorizing the ac­
quisition in question does not preclude acquisition o f title to
the interest which the agency intends to acquire, the interest in­
tended to be acquired is sufficient to permit the use o f the land
contem plated, and the consideration for the land has been de­
termined with reference to the value o f the limited interest that
is acquired. In the event it is decided at some future time to
erect permanent improvements on such land, the provision for
defeasance must be eliminated. [Emphasis added.]
These regulations recognize that Congress may authorize the acquisition o f
any interest in real property and may empower the making o f expenditures
to improve the property, no m atter how risky; but they also recognize that
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“ it is very seldom that a particular interest is authorized by legislation.”
Regulation 4(a). A general legislative authorization to acquire and build
on land has not been regarded as sufficient to bring a particular transac­
tion within the exceptions in Regulation 5(b) and 5(c). Thus, in cases
where § 255 applies, this Departm ent has regularly refused to approve the
acquisition o f less than fee simple title if permanent and substantial im­
provements are to be constructed on the land, unless Congress has sepa­
rately and explicitly approved the particular acquisition. We see no legal
basis upon which to take issue with this consistent interpretation o f the
reach o f § 255, and we do not understand your request to question this in­
terpretation o f the A ttorney G eneral’s responsibility.
As explained in your request, your Departm ent proposes to acquire a
servitude to an underground mine cavern at Cote Blanche, Louisiana, to
an underground buffer zone around the cavern, and to sufficient surface
area to install or construct “ pumps, valves, and other support equipment
and facilities.” You state, that under the proposed terms o f acquisition,
the servitude would be granted for the purpose o f storing liquid hydro­
carbons, and for that purpose only, and that
[i]f the Government no longer required and used the premises for
the specific purpose for which the servitude was granted, i.e., the
storage o f liquid hydrocarbons, the Government would not be
able to use the servitude for other Government purposes and
could not enjoy the benefit o f the improvements made thereon.
While it is not yet clear exactly how great an investment is anticipated in
order to ready the site for petroleum storage, your Office has informed us
that it would be substantial. The improvements that would be installed or
constructed would not be readily removable in the event that the site were
determined at some point to be no longer useful, or if for some other
reason the United States were no longer in a position to utilize the land as a
petroleum storage facility.3 In addition, you have identified six circum­
stances the occurrence o f any o f which would, under Louisiana law, result
in the term ination o f the servitude:
1. By the destruction o f the estate which owes the servitude,
o r o f that to which the servitude is due, or by such a change tak­
ing place that the thing subject to the servitude cannot be used;
2. By confusion;
3. By the abandonm ent o f that part o f the estate which owes
the servitude;
4. By the renunciation o f the servitude on the part o f him to
whom it is due, or by the express or tacit remission o f his right;
’Indeed, there appears to be some question whether, under Louisiana law, the United
States could retain title to the improvem ents erected on the site in the event the servitude were
to lapse. See La. Civ. C ode §§ 505, 508; Yiannopoulos, Civil Law o f Property § 46, at 141
(1968).
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5. By the expiration o f the time for which the servitude was
granted, or by the happening o f the dissolving condition attached
to the servitude; or
6. By the dissolution o f the right o f him who established the
servitude.
Some o f these occurrences appear to be within the control o f the United
States (e.g., renunciation and “ confusion” ) but others are not. One
troublesome possibility which you recognize is that the estate that owes the
servitude might be destroyed or changed in some way so as to make it im­
possible to use the servitude for the purposes originally intended. You
point out that “ [i]t is conceivable that the salt dome might collapse and
that the servitude would be considered term inated” and that “ the Govern­
ment could lose at least the right to remove the improvem ents.” You also
refer to other ways in which, through circumstances beyond its control,
the United States could lose its investment in the land and improvements:
if oil were unavailable to fill the caverns, or if at some future
time the Government decided not to use the servitude for hydro­
carbon storage, or if the cavern were to collapse, then although
the Governm ent’s right to use the property would not terminate
after ten years’ non-use, the Government would have no right to
use the servitude for other Government purposes for which the
servitude and improvements thereon may be suitable. Moreover,
given the limited purposes o f the servitude and the fact that pre­
scription would run against one to whom the Government alien­
ated its interest, the potential for the Governm ent’s recovery of
its investment through sale o f its servitude interest, is uncertain.
On the basis o f its own analysis o f Louisiana law, and the various risks
attending the transaction described in the preceding paragraphs, the Land
Division has concluded that the title proposed to be acquired is not suffi­
cient to permit approval under the regulations implementing § 255. This
position has been based not only on the potential for destruction o f the
servitude under Louisiana law, but also on the restrictions on use incor­
porated in the terms of acquisition.
We do not understand you to be asking us to review the reasonableness
o f the substantive standards contained in the regulations. Rather, you
wish an opinion on whether they should be applied to the transaction in
question. Thus stated, your request has two parts: first, whether § 255 and
its implementing regulations apply at all to transactions o f the SPR; and
second, if § 255 applies, whether the transaction in question should none­
theless be approved under the regulations as having been “ clearly author­
ized” by Congress.
As noted above, this Departm ent’s position for some time now has been
that exemptions from the statutory requirement o f A ttorney General ap ­
proval must be explicit. We think the terms o f § 255 and its legislative
history support this interpretation. Prior to its revision in 1970, § 255 pro­
vided that no public money should be expended upon any land purchased
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by the United States for the purpose o f erecting any public building until
the Attorney General had given his written opinion “ in favor o f the valid­
ity o f the title.” The A ttorney General was authorized to approve titles
subject to infirmities only where the sale price o f the land did not exceed
$10 per acre, and the total value o f the interest being acquired did not ex­
ceed $3,500. A num ber o f Federal agencies were exempted in whole or in
part from the provisions o f § 255, including the Departments o f the Army,
the Interior, and Agriculture, and the Tennessee Valley A uthority. In ad­
dition, the A ttorney General was specifically authorized to approve title to
easements and the rights-of-way under certain circumstances, although
apparently not for the purpose o f constructing permanent improvements
on them. In P ub. L. No. 91-393, 84 Stat. 835 (1970), Congress sub­
stantially revised § 255 to simplify and consolidate its provisions, and to
centralize in the A ttorney General responsibility for approving titles to
land or interests in land acquired by the United States. In so doing, it
specifically rejected a bill proposed by the Department of Justice that
would in effect have made each agency responsible for its own land trans­
actions. Both the Senate and House Committees concluded that “ the A t­
torney General as the chief law officer o f the United States should retain
the primary responsibility for the approval o f land titles.” S. Rept. 1111,
91st Cong., 2d sess. 4 (1970); H. Rept. 970, 91st Cong., 2d sess. 3 (1970).
The bill passed by Congress in 1970 rescinded the statutory exemptions for
all agencies but the Tennessee Valley A uthority. Instead, the Act author­
ized the Attorney General to delegate his responsibility to other depart­
ments and agencies, subject to his general supervision, and in accordance
with regulations prom ulgated by him.
Since 1970, then, the A ttorney General has had responsibility, either di­
rectly or in a supervisory capacity, for approving title to land or interests
in land acquired by all Governm ent agencies except the Tennessee Valley
Authority. We are informed by the Land Division that this authority has
regularly been exercised in connection with land acquisitions by such
diverse entities as the St. Lawrence Seaway, the National Park Founda­
tion, and the Pennsylvania Avenue Redevelopment C orporation.4
‘Beyond the exem ption in § 255 itself for the TVA, there appears to be only one agency
whose land transactions have, since 1970, been exempted from § 255 review. Section 410(a)
o f the Postal Reorganization Act o f 1970, 39 U .S.C . § 410(a), exempts the Postal Service
from all but certain enum erated Federal laws dealing with, inter alia, property and funds.
This Departm ent has taken the position that title to land acquired by the Postal Service need
not be approved by the A ttorney General. Beyond this, Congress has specifically exempted a
few categories o f land acquisition. See 48 U .S.C . § 1409b (Interior Departm ent may con­
struct projects on land acquired in Virgin Islands); see also successive appropriation bills
since the mid-70s for the Departm ent o f Defense and the International Com munications
Agency, which have contained specific exemptions from the requirement o f prior Attorney
General approval to acquire land and begin construction o f buildings for military housing
and other purposes, and for radio facilities in foreign countries. See, e.g., Pub. L.
No. 95-457, 92 Stat. 1231 (1978); P ub. L. No. 95-431, 92 Stat. 1021 (1978). The fact that
Congress continues to carve out specific exem ptions from § 255 lends weight to the view that
exem ptions from the reach o f § 255 will not be implied from a general statutory authorization
to acquire interests in land.
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We have found nothing in the EPCA or its legislative history to indicate
that Congress intended to exempt any transactions from the review appli­
cable to virtually all other agency acquisitions.
We conclude, therefore, that § 255 does apply, and that it requires A t­
torney General approval o f land acquisitions for the SPR. The question
then becomes whether the transaction has been or will be “ clearly author­
ized by the Congress” so as to satisfy the requirements contained in Regu­
lation 5. The fact that EPCA authorizes the Secretary generally to pur­
chase interests in land—defined to include the acquisition o f an easement
or leasehold interest—is not by itself sufficient. Indeed, as we have stated,
nothing short o f a direct and specific approval by Congress o f a particular
acquisition will suffice whenever substantial improvements are to be made
and the acquisition o f less than fee title is contem plated.5 We therefore
reach the issue o f whether the submission o f this transaction to Congress
as a proposed amendm ent to the SPR plan constitutes an appropriate ve­
hicle for obtaining the necessary specific congressional approval. Stated
differently, may the failure o f either House o f Congress to take any action
to block a proposed am endment to the SPR pursuant to the one-House
veto provision o f § 159 be regarded as constituting the specific congres­
sional approval necessary to satisfy the requirements o f the § 255 regula­
tions? We think it cannot.
As you know, the President in his statement o f June 21, 1978, to C on­
gress6 reaffirmed the view expressed both by earlier Presidents and by a
succession o f Attorneys General that so-called “ legislative veto” mech­
anisms are unconstitutional. The central constitutional principal underly­
ing that often-stated view is that the Constitution prescribes one way—and
one way only—for the enactm ent o f laws. The procedure set forth in A rti­
cle I, section 7, which contemplates affirmative approval o f legislative
proposals by both Houses followed by submission to the President for the
exercise o f his veto prerogative, is the exclusive m ethod o f lawmaking.
While congressional guidance in the form o f a resolution o f disapproval or
veto adopted pursuant to a statute that does not com port with Article I,
section 7, may be regarded as performing a useful advisory function, we
have repeatedly concluded that even such affirmative acts have no binding
legal significance. It follows, a fortiori, that Congress’ total inaction, by
virtue o f both Houses’ failure to adopt even an advisory resolution with
’Nor do we believe that an exemption from § 255 must necessarily be implied from the statu­
tory scheme o f the EPCA. The legislative history o f that Act suggests that Congress anticipated
that some land might usefully be acquired for the location o f storage and related facilities which
would not require the construction o f substantial permanent improvements. See H. Rept.
No. 340, 94th Cong., 1st sess. 35 (1975) (bill authorizes “ acquisition o f interests in land, storage
and related facilities or construction o f such storage and related facilities • * * .” [Emphasis
added.] And, it is our understanding that a leasehold interest or servitude might be acquired on
existing pipelines or storage facilities. Therefore, to say that no substantial permanent improve­
ments may be constructed on land that the United States does not own in fee does not nullify the
statutory authorization to acquire lesser interests in land.
‘H. Doc. 95-357, reprinted at 124 C o n g r e s s i o n a l R e c o r d H. 5879 (June 21, 1978).
343
respect to any particular am endm ent o f the SPR plan, cannot be regarded
as providing the legislative imprimatur required by the regulations. It
should be understood, however, that our conclusion would be different if
both Houses o f Congress acted affirmatively by joint resolution to ap­
prove the proposed transaction—an alternative apparently contemplated
by § 551(c)(2) o f the EPC A , 42 U .S.C . § 6421(c)(2). This section sets forth
the procedure for congressional review o f Presidential requests to imple­
ment certain energy actions. If this course were followed, the President’s
transmittal message should set forth the limited circumstances under
which it is being subm itted.7
The Com ptroller G eneral’s conclusion that Congress did intend to
authorize construction o f improvements on leased land under the EPCA ,
to which you refer, is not necessarily inconsistent with the position this
Department has taken with respect to similar construction on a servitude.
The authority under which the Com ptroller General passes upon expend­
itures for the construction o f public buildings on leased land is signifi­
cantly different from that governing the A ttorney General’s role under
§ 255. The only specific statutory basis for the Com ptroller General’s dis­
approving expenditures over a certain am ount is in § 322 o f the Economy
Act o f 1932, 40 U .S.C . § 278a. The Com ptroller General’s “ general rule”
that appropriated funds may not be used to make permanent improve­
ments to private property without specific statutory authority, has itself
no statutory basis other than those laws that deal generally with appropri­
ations. See 39 Com p. Gen. 388, 390 (1959). The Com ptroller General
takes the position that neither that rule nor § 322 was intended to apply in
situations in which Congress clearly anticipated and approved the making
o f improvements on land not owned by the United States. Compare 46
Comp. Gen. 60 (1966), with 53 Comp. Gen. 317 (1973). The Comptroller
General has no basis upon which to disapprove the am ount o f an expend­
iture where the expenditure itself has been explicitly authorized. By con­
trast, the A ttorney General remains responsible under § 255 for determin­
ing the sufficiency o f title for the purpose intended, whether or not the
transaction may otherwise be authorized by law. Congress can therefore
reasonably be expected to make itself absolutely clear when the exercise o f
this responsibility is to be waived.8
’We note that any legislation enacted by Congress, whether by bill or joint resolution and
whether passed pursuant to 42 U .S.C . § 6421(c)(2) or without reference to that statute, would
suffice to satisfy the requirem ents o f A rt. 1, § 7.
'A dditionally, the interest in land represented by a leasehold is generally o f a more certain
quality than a servitude under Louisiana law. A lease is for a period certain, and it is there­
fore possible to predict exactly how long the land will be available for the contem plated use.
The G overnm ent may plan to construct improvem ents whose useful life will more or less
coincide with the term o f the lease, and may otherwise take steps to control the disposition o f
its investment after the expiration o f the lease. A servitude, on the other hand, may be ex­
tinguished at any time following its acquisition upon the happening o f a num ber o f cir­
cumstances beyond the control o f the Governm ent. The risk o f this happening in the instant
case is acknowledged by you. T o the extent that a degree o f discretion is involved in both
situations, we find nothing necessarily incongruous about the differing conclusions reached
by the C om ptroller General and this D epartm ent.
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While these differences in statutory responsibility may satisfactorily
justify a difference in the conclusions reached heretofore by the Com p­
troller General and those stated in this opinion, it should be pointed out
that insofar as the Com ptroller General’s opinion purports to rely on the
fact o f congressional “ approval” pursuant to the veto mechanism, we dis­
agree with it. As stated above, we are unable to find any legal significance
in the failure o f disapproval.
Larry A . H ammond
D eputy Assistant A ttorney General
Office o f Legal Counsel
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