Full opinion text
WESLEY E. BROWN, Judge. I. STATEMENT OF THE CASE These appeals arise from an action filed in the District of Columbia by the United States against the defendant-appellant, Exxon Corporation, pursuant to the provisions of Sections 208(b), 209, of the Economic Stabilization Act of 1970, 12 U.S.C.A. Section 1904 note. (Hereafter, ESA) The United States sought civil penalties and restitution from Exxon for overcharges which occurred in an unitized field known as the “Hawkins Field Unit,” (HFU) located near Tyler, Texas. It was claimed that the overcharges resulted from miscalculations of “old” and “new” oil within HFU from January, 1975, until the end of price controls in January, 1981. Upon cross motions for summary judgment, the District Court found that Exxon had violated the two-tier oil price regulations set out in 10 CFR Sections 212.73, 212.74 (1975). United States v. Exxon Corp., 561 F.Supp. 816 (D.D.C.1983). Although Exxon did not own all of the production in HFU, the Court found that it, as Operator, had caused, and was responsible' for, the violations, and that it was therefore liable, in restitution, for all of the overcharges arising from the violations, an amount exceeding $895 million during the period in question. With interest, the judgment entered in this action exceeds $1.6 billion. Under the District Court’s findings, the sum ultimately paid in restitution will be distributed to the separate States and Territories, in accordance with guidelines established by Congress in Section 155 of Pub.L. 97-377, .96 Stat. 1830 (1982), sometimes referred to as the “Warner Amendment.” II. THE PARTIES AND CONTENTIONS ON APPEAL Eleven separate appeals were filed in this Court, but the United States has' dismissed its cross-appeal of the denial of civil penalties, and that issue is no longer in controversy at this stage of the proceedings. The principal contenders appear in Case No. DC-93, in which Exxon appeals the grant of summary judgment to the United States. The multiple issues which have been raised in this appeal will be discussed at length, but for present purposes it may be said that the questions here are directed principally to liability and the proper interpretation of the applicable regulatory framework. In particular, of course, is Exxon’s objection to the finding of liability by summary judgment, without an eviden-tiary hearing. Exxon likewise disputes the extent of its liability, and the legality of ordering payment into the United States Treasury for distribution to the States and Territories. Exxon ■ also raises the question of this Court’s jurisdiction, in view of the recent decision of the Supreme Court in Immigration and Naturalization Service v. Chadha, et al., 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d, 317 (1983). It is suggested that its liability, if any, will be “significantly reduced, if not eliminated altogether” by the Chadha ruling. The remaining eases are appeals filed by various “Intervenor Appellants,” who were permitted to intervene by the District Court, after judgment was filed, for the purpose of. setting forth their various claims to a share in restitution, and their claims, against the judgment. None of these appellants supports the claim of appellant Exxon on the issue of liability. They appeal only from that portion of the judgment which requires that all of the restitution funds be disbursed to the States without any attempt to first identify and compensate various purchasers of petroleum products who were the alleged victims of Exxon’s violations. The various Intervenor Appellants are: Case No. DC-91— National Oil Jobbers Council and the Jobbers’ Group; Case No. DC-92— U.S. Oil & Refining Co., and Gladieux Refinery, Inc., appearing as “Old Oil Entitlements Program” participants; Case No. DC-94— Intervenors, referred to as “Indicated Refiners,” also participants in the Entitlements Program; Case No. DC-95— Intervenors, referred to as “Gasoline Retailers” who claim to have been directly injured by Exxon violations; Case No. DC-96— Tosco Corporation, Intervenor, a participant in the Entitlements Program, and also a direct purchaser of crude oil from Exxon; Case No. DC-97— Philadelphia Electric Company, representing a class of purchasers, and consumers of petroleum products; Case No. DC-98— The Air Transport Association of America, representing the air transportation industry as a consumer of petroleum products; Case No. DC-99— Geraldine Sweeney, an automobile owner, RJG Cab, Inc., and National Freight, Inc., commercial transportation companies, all end users of refined petroleum products; Case No. DC-100— Intervenors Marathon Petroleum Company, Mobil Oil Corp., and Murphy Oil Corp., also participants in the Entitlements Program. In addition to the Intervenor Appellants, the appeals include a group of Intervenor Appellees, these being the various States of the United States. These Intervenors support the remedy ordered by the District Court, whereby the monies paid in by Exxon will be distributed among the States and Territories. Other groups and organizations, appearing as Amici Curiae, present additional questions which touch upon the direct issues raised on appeal. In this respect, the owners of working interests in HFU, who have heretofore entered into “global settlements” with the Department of Energy on other occasions, contend that they may be adversely affected by a precedent established in these cases. The Navajo Nation asserts its rights as an end consumer of refined petroleum products, and complains also that as a sovereign political entity, it is entitled to share equally with the States and Territories in any distribution of the judgment in this case. The Chamber of Commerce of the United States objects to “retroactive law-making” by the district court. The American Petroleum Institute objects to distribution of the judgment to “unidentified consumers” without any effort being made to reimburse members of the petroleum industry who sustained damage from the Exxon violations. R. Lacy Inc., an interest owner in the Hawkins Field, is concerned with the question of contribution and indemnity, should Exxon’s liability for all overcharges in the Unit be affirmed. The “Low Income People Together,” et al., appear on behalf of some thirteen community organizations across the country which represent senior citizens, tenant organizations, etc. Such groups would be among the ultimate beneficiaries of any distribution of funds to the States pursuant to guidelines set out in Section 155 of Public Law 97-377. Total Petroleum, an Intervenor in In re The Department of Energy Stripper Well Exemption Litigation, M.D.L. No. 378, now pending in the District of Kansas, appears to urge that it was error to fashion a restitution remedy without consideration for the rights of direct purchasers of petroleum products. Total Petroleum claims that the remedy and judgment in this action will have important consequences for the parties involved in the Stripper-Well litigation. III. REGULATORY FRAMEWORK The controversy between Exxon and the Government concerns the manner in which accountings were made in determining the identity and quantity of “new oil” removed from HFU. The overcharges which accrued here are attributable to the fact that Exxon, in making this determination, calculated upon a “lease by lease” basis, rather than upon a unit-wide comparison of field production. The regulatory history of the Economic Stabilization Act of 1970, 12 U.S.C. Section 1904, Note, (ESA) and the subsequent passage of the Emergency Petroleum Allocation Act of 1973, 15 U.S.C. Sections 751 et seq., (EPAA) has been many times reviewed by this Court, most recently in Exxon Corp. v. United States Dept. of Energy, 744 F.2d 98 (TECA 1984), cert. den., — U.S. -, 105 S.Ct. 576, 83 L.Ed.2d 515 (1984). It is sufficient to state that the purpose of petroleum price regulation was to ensure fair allocation of petroleum resources at equitable prices and to encourage the search for new energy resources. Basic to the regulation of petroleum prices was a “two-tier” pricing structure, whereby monthly oil production which was less than, or equal to a corresponding 1972 level of production from a “property” was to be sold as “old” oil at a posted price, while production in excess of the 1972 level could be sold as “new” oil, at prices substantially higher. May 15, 1973, 10 C.F.R. Sections 212.73(b), and 212.74(b). The “based production control level,” or “BPCL” by which “old” and “new” oil production was to be determined was basically defined, with respect to months ending pri- or to February 1, 1976, as “the total number of barrels of domestic crude oil produced and sold from that property the same month of 1972;” 10 C.F.R. Section 212.72. Since all computations of old and new oil were to be made on the basis of production levels from a “property”, it was necessary to determine the boundaries of each “property.” The term “property” was broadly defined as “the right which arises from a lease or fee interest to produce domestic crude petroleum.” See 10 C.F.R. Section 212.72, January, 1974. In February, 1976, the property definition was slightly restructured, without substantive change, to read “the right to produce domestic crude oil which arises from a lease or from a fee interest.” Effective September 1,1976, the definition of property was changed so that separate reservoirs subject to a single right to produce could thereafter be treated as separate properties. R. 37,606. See Department of Energy v. Louisiana, 690 F.2d 180 (TECA 1982), cert. den., 460 U.S. 1069, 103 S.Ct. 1522, 75 L.Ed.2d 946; Pennzoil Co. v. United States Dept. of Energy, 680 F.2d 156, 162, note 9. (TECA 1982), cert. dismissed, 459 U.S. 1190, 103 S.Ct. 841, 74 L.Ed.2d 1032 (1983). Questions arose in the case of properties which were not unitized in 1972. This was the situation of Hawkins Field, which did not become formally unitized until January 1,1975. On five separate occasions in 1974 and 1975, the General Counsel of the Federal Energy office issued interpretations to the effect that unitized multi-lease units were single properties. These interpretations were later published in May, 1977. See Pennzoil, supra. This same interpretation was issued as a general guideline for the industry in August, 1975, in the form of Ruling 1975-15. With respect to properties unitized after 1972, the Ruling provided that: “... the need for comparison of like quantities requires the producer in computing the BPCL to measure and total the individual 1972 monthly production levels for each of the leases that now comprise the unit. Accordingly, for example, where a unit consists of several leases that were unitized in 1973, the property consists of the unit, and the BPCL is the total 1972 monthly production from all of the several leases that now comprise the unit.” A few months later, and in December, 1975, Congress enacted the Energy Policy and Conservation Act (“EPCA”), which allowed the agency to permit price increases, without current increases in production, when the agency found that such price increases would give incentives for “enhanced recovery techniques.” 15 U.S.C. Section 757(b)(2)(A); DOE v. Louisiana, supra, 690 F.2d at 185. The agency then proposed a new regulation, and after considering comments, adopted 10 C.F.R. Section 212.75, which applied only to “operators of 'enhanced recovery’ units formed on or after” February 1, 1976: “(a) Rule. A producer shall, as of the date of implementation of enhanced recovery operations on a unit or as of the date production patterns with respect to individual leases within a unit are substantially altered (which ever date occurs first) establish a unit base production control level for the unit. sjs % s¡c Hs S* * “ ‘Unit base production control level’ means the total number of barrels of old crude oil (1) produced and sold from all properties that constitute the unit plus (2) the total number of barrels of crude oil produced from all stripper well leases that constitute the unit during the 12 month period immediately preceding the establishment of a unit base production control level for the unit, such total divided by 365, multiplied by the number of days in that particular month. “ ‘Unit’ means the right to produce crude oil that arises from a unitization agreement approved by the applicable state or municipal regulatory authority____” The term “enhanced recovery” was defined by Section 212.75 as “... any method, previously approved by applicable state or municipal regulatory authority ... of recovering crude oil in which part of the energy employed to move the crude through the reservoir is applied from extraneous sources by the injection of liquids or gases into the reservoir.” In addition to adopting Section 212.75, discussed above, the old Section 212.72 was amended to allow operators of all other properties the option of calculating a new BPCL equal to 1975 old oil production. This had the effect of lowering the BPCL at properties where production had declined. In the preamble to Section 212.75, the agency also announced that Ruling 1975-15 would be rescinded ab initio insofar as it required producers of unitized properties to treat the unit as a single property upon unitization. The producers were given permission to delay implementing a unit BPCL until there “has been a significant alteration in pre-unitized producing patterns of the individual leases.” The preamble further noted that: “If a significant alteration of producing patterns does not occur until the actual implementation of enhanced recovery operations, the unit operator may continue to determine quantities of upper tier crude oil ... on a lease-by-lease basis. Once enhanced recovery operations begin, the producer will be required to calculate a unitized BPCL, as set forth in new 10 CFR 212.75 ... and to treat the unit as a distinct property.” (Emphasis supplied.) In August, 1976, after the agency received comments on the definition of the term “significant alteration in producing patterns” as used in Section 212.75, the term was formally defined as follows: “ ‘Significant alteration in producing patterns’ means the occurrence of either (1) the application of extraneous energy sources by the injection of liquids or gases into the reservoir, or (2) the increase of production allowables for any property that constitutes the unitized property.” 10 C.F.R. Section 212.75(b). In January, 1977, the agency issued Ruling 1977-2, stating that the definition of “significant alteration” contained in Section 212.75 would be considered as a “guidance in audits and compliance cases” involving pre-existing units subject to Section 212.72. At that time it was announced that those operating units subject to Section 212.72 would be permitted “to justify the establishment of the date of ‘significant alteration’ on ‘reasonable bases’ other than injection or an increase in production allow-ables.” To summarize these regulations then, it may be stated that a) the agency interpreted 10 C.F.R. Section 212.72 to require a producer to calculate a single aggregated BPCL for multi-lease units, as of the date of unitization. Ruling 1975-15 so required; b) In February, 1976, the agency changed this requirement, and allowed Operators of units already formed to delay implementation of a unit BPCL until the date on which producing patterns were “substantially altered;” c) In addition, and in February, 1976, the agency adopted 10 C.F.R. Section 212.75 which applied only to operators of enhanced recovery units formed on or after February 1, 1976. This provided prospective incentives for oil producers to enhance long-run production through future unitiza-tions; d) In January, 1977, by Ruling 1977-2, the agency determined that the definition of “significant alteration in producing patterns,” first published in September, 1976, would be used as “guidance” in determining whether a significant alteration occurred in pre-existing units. IV. THE HAWKINS FIELD The record on appeal in this case consists of over 39,000 pages in 47 volumes. Included in this record are over 500 exhibits, consisting of more than 6,000 pages, which were presented to the District Court in support of the cross motions for summary judgment. Many of these exhibits are from Exxon files — inter-office memos, copies of correspondence, reservoir studies, oil production ledgers and schedules, and computer print-outs. In addition, the District Court had records and orders of the Texas Railroad Commission, which regulated the Hawkins Field, and the parties’ statements of uncontested material facts. From this evidence, the District Court made findings of fact concerning the history of the Hawkins Field, and Exxon’s application of pricing regulations to the production from that field. These findings may be summarized as follows: A. Development of the Unit. Oil was discovered in the 10,000 acre field near Tyler, Texas in 1940. By the late 1940’s, more than 200 individuals and companies produced oil on more than 300 leases in the field. In 1969 Exxon (through its predecessor, Humble Oil and Refining Company), owned two-thirds of the field’s production. Under state law, the Texas Railroad Commission regulated the number of oil wells within the field, as well as the number of barrels of oil each well could produce. These were termed “production al-lowables.” ' The Hawkins Field was what is termed a “MER field” in Texas. In such fields the Texas Commission assigned an aggregate allowable for the entire field, which was called the maximum efficient rate of production, or “MER”. This was a limit on the number of barrels which could be pumped daily from the field as a whole. The advantage of the “MER” designation was that whenever a lease operator could not produce its allowable, the Commission distributed pro rata, any unused allowable from one lease to every producing well in the field. By mid-1960 the natural reservoir pressure in the field declined, allowing invasion of water and loss of oil into the field’s original gas cap. The interest owners, led by Exxon, determined that this trend could be reversed, and the life of the field prolonged, by means of an enhanced recovery project. This would require the construction of a plant to produce inert gas, which would then be injected underground in order to increase the reservoir pressure. Before the recovery project could proceed, it was necessary that the field be unitized in order that the costs of the gas plant could be spread among the owners, and also because the injection of gas would cause crude oil to flow underground across lease lines. As noted by the District Court, when a field becomes unitized it most likely results in the shutting in of wells within certain leaseholds, and the increase of production at others, because enhanced recovery operations cause oil to flow underground across lease lines. In such circumstances, payments to unit participants are not based upon actual production from a particular well, but upon an imputed percentage of the unit’s total production. United States v. Exxon Corp., supra, 561 F.Supp., fn. 6, p. 820. In 1969 Exxon actively began to promote unitization, meetings were had with 300 other working interest owners in the field, and negotiations went on with more than 2,200 royalty interest owners. At this time, Exxon secured permission from the Commission for an interim conservation project, whereby up to 20 million cubic feet of natural gas per day could be injected into the field for the purpose of increasing production. In November, 1974, and in anticipation of unitization, the Commission increased the Hawkins Field MER from 87,-000 barrels per day to 112,000 barrels per day. In late 1974 the Unit Agreement was finally executed and approved by the state Commission. Under its terms, Exxon was named Unit Operator, costs of the proposed gas plant were to be shared, and production was divided according to a formula based upon estimates of the recoverable reserves under each tract. At the time the Unit Agreement was approved the state Commission provided Exxon with a “unit production allowable,” to be effective on January 1, 1975. Under prior Commission orders, the production allowable of an individual shut-in well could be transferred only pro rata among all other wells at the Hawkins Field. The new “unit allowable”, which was equal to the then existing MER of approximately 112,-000 barrels per day, allowed Exxon to transfer production among wells within the unit, at will. The natural gas injections which were initially permitted by the state Commission in 1969, continued beyond the effective date of unitization, and through the years, until the inert gas plant was completed and put into operation in March, 1977. B. Exxon’s Pricing Policies. The trial court found; that when oil price control regulations were initiated in 1973, Exxon already operated several multi-lease units, some of which, like Hawkins Field, were formed after 1972, the base year designated for calculation of the BPCL; that Exxon applied an aggregated, unit, BPCL at other units it operated in Texas, California, Alabama and Florida; that Exxon departed from this practice at Hawkins Field following a determination it made in 1974 that an 80% reduction in the amount of new, released and stripper oil which could be claimed would follow if calculations were made upon a unit basis. Exxon contends that the trial court’s finding that “Exxon departed from its prior practice” at Hawkins Field was erroneous and based upon a “one-sided view of disputed evidence,” inasmuch as “Exxon’s pri- or practice was to review its general guidelines, the many oral and written modifications thereto, and then to examine each situation carefully and independently— which was the same practice employed at the HFU.” Exxon’s argument is without merit. Exxon’s own records establish that in the fall of 1973, following initial price regulation, Exxon issued instructions to treat several multi-lease units which it operated as single properties, with a single, unit BPCL. These instructions included units formed after 1972, the base year designated in the regulations for the calculation of the BPCL. In accordance with this practice, Exxon applied an aggregated, unit BPCL at units it operated in Texas, California, Alabama and Florida. These units included the Friendswood Unit, unitized on September 1,1973. As an interest owner, and as a purchaser of crude oil, Exxon received notification from many other companies that units were to be treated as single properties, each with a single, aggregated BPCL. Nevertheless, when Hawkins Field was formally unitized on January 1, 1975, Exxon thereafter did in fact apply individual lease-by-lease BPCL calculations. When Ruling 1975-15 was issued in August, 1975, making explicit the regulations’ requirement that a unit BPCL be calculated and applied to every unit, as of the date of unitization, Exxon, along with other industry critics requested modification or clarification of the Ruling. When the February, 1976 amendments to the oil price regulations were under consideration, Exxon suggested that the provision for lease-by-lease calculation of exempt oil should be extended for two years after formation of the unit, or until injection began in an enhanced recovery project. Exxon also urged that the same rules be applied to units formed before February 1, 1976. As noted, however, the February, 1976 amendments adopted by the agency applied only some of the new incentives to pre-existing units, and provided that the new Section 212.75 would only apply prospectively. Following a meeting in mid-February, 1976, with agency representatives, Exxon decided that until the meaning of the new regulations was “clarified,” it would be proper to continue its lease-by-lease calculations at the Hawkins Field, and it so advised the other interest owners. The agency solicited comments in April, 1976, as to how best to determine when there was “a significant alteration” in producing patterns. Exxon suggested that the term be defined as “the initiation of the major injection or other programs contemplated by the unit, provided however that the date will be no longer than two years from the formation of the unit.” The agency in August, 1976, published the definition of “significant alteration in producing patterns” as being either the injection of liquids or gases into the reservoir or the increase of production allowables for any property constituting the unit. Exxon then determined that the regulations did require the calculation of an aggregated, unit BPCL for the Hawkins Field Unit, but it did so only as of September 1, 1976, and then under the more generous provisions of Section 212.75. Exxon continued this manner of calculation until the repeal of the oil price regulations in January, 1981. In reviewing the production data from the Hawkins Field, the Trial Court concisely illustrated the effect of Exxon’s pricing policies which we described above: “From January 1975 through August 1976 production at the Hawkins Field remained relatively stable at about 112,-000 barrels per day____ Thereafter, despite the implementation of the inert gas enhanced recovery project in March 1977, production began to decline, to about 90,-000 barrels per day in July 1977, and finally dropping to about 45,000 barrels per day in January 1981 at the same time oil prices were decontrolled____ Despite the steady decline in production, an increasing percentage of oil was accounted for by Exxon as upper-tier, higher-priced oil, until beginning June 1, 1979 almost all of the then 62,000 barrels per day was classified as new oil.” 561 F.Supp. at 825. (Emphasis supplied.) V. CONCLUSIONS OF THE TRIAL COURT In sustaining the Government’s motion for summary judgment the trial court made a series of determinations applicable to our consideration of these appeals. 1. Section 212.72, the unit property regulation, was procedurally valid. 561 F.Supp. at 826-829. That issue has not been raised on appeal. 2. Under Pennzoil, supra, a unitized field must be considered a single property for purposes of computing a unit BPCL. 3. The rescission of Ruling 1975-15, which had required that a BPCL be established upon unitization, was not a mere “relaxation in enforcement policy,” as claimed by the government. The agency’s Ruling in'February, 1976 “amounted to a completely new, although less strict, interpretation of the property definition found in Section 212.72.” 561 F.Supp. at 835. 4. The agency’s determination in 1976 to allow unit operators subject to 10 C.F.R. Section 212.72 to postpone adoption of a unit BPCL until the occurrence of a “significant alteration in producing patterns,” was reasonable. The definition of this term, as being either “the application of extraneous energy sources by the injection of liquids or gases into the reservoir,” or, “the increase of production allowables for any property that constitutes the unitized property,” was consistent with the intent of Congress that the administration of price controls be workable and effective. 5. A “significant alteration in producing patterns” occurred at Hawkins Field on January 1, 1975, the date of unitization, because Exxon then transferred production allowables among contingent leases, thus significantly altering producing patterns within the field. In addition, Exxon was also injecting gas on that date. 561 F.Supp. at 843. Under these circumstances, Exxon’s obligation to calculate a unit BPCL then accrued. 6. Exxon failed to establish a reasonable alternative basis to justify a finding of significant alteration in producing patterns in the field on a date other than January 1, 1975. A date based upon evidence of the field’s “underground drive mechanism” would not be a reasonable alternative basis because it would not be a workable system for enforcing the pricing program. 7. Exxon’s estoppel defense is without merit because the undisputed facts in the case establish that its reliance, if any, on unauthorized, informal statements of agency employees, was not reasonable. Furthermore, even if there was reasonable reliance, the government pursued “important national policy objectives” in its pricing regulations, and these objectives should not be frustrated by allowing Exxon “unjustly to reap huge profits from its dubious exploration of the limits of regulatory tolerance.” 561 F.Supp. at 848. 8. Since Exxon caused all of the overcharges in the field by its pricing, injection and production decisions, it is liable for full restitution of all the overcharges, with interest. 9. Civil penalties would not be imposed because Exxon did not attempt to conceal its pricing practices. 10. Since it would be “impossible” to identify the ultimate victims of Exxon’s overcharges, due to the “pervasive system of price controls” in the petroleum industry, the Trial Court adopted a remedy used by Congress in a similar situation, and ordered Exxon to remit all overcharges to an escrow account in the United States Treasury to be held in trust by the Treasury, for future disbursement to the States for the ultimate purpose of funding specific energy conservation programs, in accordance with procedures set out in Section 155 of Pub.L. No. 97-377, 96 Stat. 1830, 1919 (1982). In so doing, the trial court also stated: (561 F.Supp. at 856). “In formulating its order, the court in no way relies on Section 155 as an express statutory grant of authority to this court, but acts instead in the exercise of its broad equitable powers to order restitution.” VI. ISSUES ON APPEAL Exxon’s contentions in this appeal may be summarized in the following manner: A. The District Court violated established summary judgment principles in granting judgment to the Government because it improperly resolved factual disputes, ignored relevant evidence, viewed all evidentiary inferences in favor of the DOE, and improperly assumed to be true facts outside the record. B. The District Court erred in summarily determining Exxon’s liability because: 1. The history of the unit property rule establishes that Hawkins Field Unit was not subject to the definition of “significant alteration in producing patterns” set out in 10 CFR Section 212.75; 2. The restrictive definition of “significant alteration in producing patterns” can not be given retroactive effect; 3. Retroactive application of only selected portions of 10 CFR Section 212.75 is arbitrary and capricious; 4. When a “significant alteration in producing patterns” occurred at the Hawkins Field Unit was an issue for resolution at trial; 5. Ruling 1977-2 expressly provides that Exxon be afforded an opportunity to establish a reasonable alternative “significant alteration” date for the HFU. C. The District Court erred in summarily determining questions of remedy in favor of the DOE because: 1. Monetary awards to uninjured state governments are not restitution; 2. Monetary awards to uninjured state governments improperly expose Exxon to multiple liability; 3. The District Court assessed liability on the basis of unpleaded and unproved refiner allocation violations; 4. The amount of the judgment is grossly overstated; 5. Exxon’s liability must be reduced, if not eliminated, in view of the unconstitutional one-house veto provisions in the EPAA and the EPCA. D. The District Court erred in requiring Exxon to pay on behalf of other interest owners alleged overcharges received by them, because the evidence did not establish that Exxon can be reimbursed for such payments; E. The District Court erred, as a court of equity, in requiring restitution of the full amount of the alleged overcharges and prejudgment interest because: 1. Restitution is an equitable remedy that implicates questions of fairness; 2. A balancing of equities requires an evidentiary hearing; 3. Restitution of the full amount of the alleged overcharges is inequitable; 4. Awarding prejudgment interest is inequitable. The Government’s contentions in this appeal may be summarized in this manner: A. The District Court correctly held that a single BPCL had to be adopted at the Hawkins Field in January 1975 when it was unitized and a significant alteration in producing patterns occurred, because: 1. This Court has previously determined that Section 212.72 required establishment of a single BPCL upon unitization; 2. The District Court properly applied the less stringent Ruling 1977-2, permitting a unit operator to delay establishment of a single BPCL until occurrence of a significant alteration; 3. The District Court properly granted summary judgment upon the basis of Exxon’s own undisputed data, because: a. Under the definition of significant alteration used as guidance, a significant alteration occurred on January 1, 1975; and b. The District Court correctly held that Exxon failed to justify the date of the significant alteration on any other reasonable basis. B. The District Court properly concluded that Exxon, the Operator who caused the overcharges, is liable for all overcharges with interest, because 1. Exxon is liable for all overcharges at the Unit under Sauder v. DOE, 648 F.2d 1341 (TECA 1981); 2. Exxon is entitled to no reduction as a result of consent orders between DOE and other companies; and 3. The District Court did not abuse its discretion by awarding interest on the overcharges at the rates provided. C. The District Court properly concluded that payment of Exxon’s overcharges to the states is a lawful and appropriate remedy to effectuate restitution in this case, because 1. The District Court correctly concluded that the overcharges were so widely distributed through the operation of price controls that individual harm could not be calculated with reasonable certainty; and 2. The District Court reasonably exercised its broad discretion to fashion a remedy — payment to the states — which achieves the central purpose of restitution under the EPAA. VII. THE CHADHA ISSUE Before proceeding to the question of the nature and extent of Exxon’s liability in this case, we first address questions which have been presented by the recent decision of the Supreme Court in Immigration and Naturalization Service v. Chadha, supra, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). Judgment was entered in this action on June 7, 1983. The day before Exxon filed its notice of appeal with this Court, it moved for “reconsideration” of the trial court’s decision on the ground that, in view of Chadha, the entire EPAA should be retroactively declared void because of an allegedly unconstitutional provision in Section 4(g)(2) of the Act which allowed either House of Congress to veto executive actions. The District Court denied the motion (a) because it was tardy since it involved an issue which was available, but not raised, prior to judgment; (b) because notice of appeal had been filed and the trial court was divested of jurisdiction; and (c) because Exxon lacked standing to challenge the statutory provisions because it could prove no injury due to the existence of the veto provision. It was also pointed out that the District Court was without power to determine such constitutional issues, jurisdiction being vested instead with the Temporary Emergency Court of Appeals. On appeal, Exxon claims that the Cha-dha issue remains viable, that it has standing to complain because its injury is obvious, that the veto provisions in question are not severable, and therefore the Act, and all regulations issued pursuant to the Act are void, in to to. In addition, it is claimed that the subject matter jurisdiction of both the trial court and this appellate court is placed in question by the Chadha precedent. It is the position of the Government that the Chadha issue is not before the Court because, under appellate rules, the question was not timely raised. The history of the veto provisions which appear within the Economic Stabilization Act of 1970, as well as Section 551, Section 552 of the Energy Policy and Conservation Act, P.L. 94r163, (EPCA), 42 U.S.C. 6201, Note, and the effect of those provisions in terms of the Chadha decision, have recently been examined at length by this Court in Exxon Corp. v. United States Dept. of Energy, supra, 744 F.2d 98 (TECA 1984), cert. den., — U.S.-, 105 S.Ct. 576, 83 L.Ed.2d 515, which involved certification of constitutional questions raised by Chadha. Similar questions have not, of course, been certified under Section 211(c) in these appeals, but because some question has been raised by Exxon concerning this Court’s jurisdiction, this panel of the Court will briefly address Exxon’s arguments. In April, another panel of this Court determined that the Gulf Oil Corporation had standing to challenge the subject matter jurisdiction of this Court by contending that the statutes granting jurisdiction contained unconstitutional legislative veto provisions. Gulf Oil Corp. v. Dyke, 734 F.2d 797 (TECA 1984), cert. den., — U.S.-, 105 S.Ct. 173, 83 L.Ed.2d 108. In Exxon, we adopted that holding and in addition ruled that the Chadha decision would not be applied retroactively to invalidate all or any part of the EPAA, the EPCA, or the Regulations fashioned to implement those Acts. We further held that even if the rule of Chadha should be found to be retroactive, the veto provisions were severable, as found in Gulf Oil Corporation, supra. We further ruled that the Regulations were not unlawfully tainted by the presence of the one-House veto, or rendered invalid because the veto power had been exercised on two occasions in July, 1975. We need not repeat what was said in Exxon, supra, with respect to the Chadha issue. This Court has determined that Chadha may not be used by the oil industry to escape the responsibilities owed to the nation and its people as represented by the law and regulations implemented by the DOE and interpreted by this Court. We find that we have jurisdiction and that Chadha has no effect on any of the issues presented in these appeals. VIII. THE LIABILITY ISSUE Exxon contends that the District Court violated well established summary judgment principles in granting judgment to the Government, in that the trial court improperly resolved factual disputes, ignored relevant evidence, improperly resolved all evi-dentiary inferences in favor of the Government and improperly assumed to be true facts outside the record. A. The Pennzoil Decision. Our discussion of the trial court’s findings and Exxon’s contentions regarding liability must begin with a consideration of this Court’s decision in Pennzoil Co. v. United States Dept. of Energy, supra, 680 F.2d 156. The Pennzoil litigation was initiated by the company upon a claim that Ruling 1975-15 was invalidly promulgated, as an announcement of a new rule not previously inherent in, or justified by, prior regulations. In affirming summary judgment in favor of the government upon this claim, we determined that Ruling 1975-15 was a correct interpretation of 10 C.F.R. Section 212.72, requiring the establishment of an aggregated BPCL upon formation of a unit: “Ruling 1975-15 is an interpretative ruling, not a legislative change, and simply made explicit what was implicit in the property definition from the beginning.” (680 F.2d at 176) This Court further held that Ruling 1975-15 was not unlawful “retroactive” legislation, for it did not represent a departure from well established practice, let alone an “abrupt departure” (Note 35, p. 176, 680 F.2d). We found that there was no basis for applying estoppel against the Government because of alleged confusing, misleading and contradictory information or Rulings supplied by agency officials. We refused to do so “on the facts here presented in favor of sophisticated oil field operators exploring the possibility of dubious regulatory leeway without even requesting an official interpretation.” (680 F.2d at 177). The Pennzoil case was remanded to the District Court for trial of the Government counterclaim for enforcement of Ruling 1975-15. The case was settled upon Pennzoil’s agreement to pay $14.75 million to the United States Treasury. See Cities Service Co. v. Department of Energy, 715 F.2d 572 (TECA 1983), affirming Pennzoil Co. v. DOE, 4 Energy Mgmt. (CCH) Paragraph 26,415 (D.Del.1983). B. Unit Property Rule. Exxon first claims that the regulatory history of the “unit property rule” establishes that HFU is not subject to the definition of “significant alteration in producing patterns” set out in 10 C.F.R. Section 212.75. In this respect, Exxon argues that the history of the regulation reveals prolonged agency indecision, the subsequent partial rescission of Ruling 1975-15, and the failure to explain or define the term “significant alteration in production patterns” until September 1, 1976 when the term was finally defined as part of an amendment to 10 C.F.R. Section 212.75. Exxon claims that since the Section 212.75 definition does not apply to units formed before September 1, 1976, the term “significant alteration in producing patterns” is only a general concept, when applied to those units, subject to an evidentiary determination upon a case-by-case basis. According to Exxon, “(t)his result, of course, poses no conflict with this Court’s decision in Pennzoil ... (because) Pennzoil upheld Ruling 1975-15 but also expressly declined to consider the legal effect of the Ruling’s ... partial recission ab ini-tio ____ What we are concerned with here, however, and what was not decided in Pennzoil, is when must a multiple lease unit convert from lease-by-lease accounting to unit-wide accounting.” (Brief for Exxon, n. 283, p. 56). In its insistence that the Pennzoil decision resolved only the question of whether HFU constituted a single “property”, and not the question of “when” the Unit BPCL was to be calculated for that property, Exxon continues to present arguments which were decided adversely to its position in that decision. The issue posed by, and resolved in, Eennzoil was whether an “aggregation of (Pennzoil’s 1972 lease) BPCL’s (was required) upon formation of a post-1972 multiple-property, enhanced recovery unit.” 680 F.2d at 159 (Emphasis supplied). In Pennzoil, we recognized the fact that in February, 1976 the agency rescinded Ruling 1975-15, insofar as it required producers to treat the unit as a single property, before such time as there was “a significant alteration in pre-unitized producing patterns of the individual leases____” Finding that this rescission did not “throw into question the validity” of Ruling 1975-15, as to previous production from unitized leases, we stated (fn. 13, 680 F.2d at 164): “There is not now before us any issue concerning the application of this subsequent rule-making and we refrain from expressing any opinion concerning it other than that it does not militate against our disposition of the issues presented to us on this appeal.” (Emphasis supplied). Under our decisions in Pennzoil, supra, and its predecessor, Grigsby v. Department of Energy, 585 F.2d 1069 (TECA 1978), cert. den., 460 U.S. 1086, 103 S.Ct. 1780, 76 L.Ed.2d 350, it is clear that Section 212.72 unembellished by any agency interpretations, required the adoption of a single BPCL, upon unitization. See also Francis Oil and Gas, Inc. v. Exxon Corp., 687 F.2d 484, at 488 (TECA 1982), cert. denied, 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400 (1982). Under these circumstances, we find that Exxon’s claim that Pennzoil does not control the question of “when” a unit must convert to unit wide accounting is without merit. Apart from Ruling 1975-15, Section 212.72 required the establishment of a single BPCL upon unitization of the Hawkins Field. C. Partial Rescission of Ruling 1975-15: The Significant Alteration Test. As previously noted, in January, 1976, the agency, in response to the newly enacted EPCA, began proceedings leading to adoption of the new regulation, 10 C.F.R. Section 212.75, designed to provide new production incentives, prospectively. At the same time, and in February, 1976, the agency determined that a “limited part” of Ruling 1975-15, insofar as it required a producer to compute a single unit BPCL upon unitization, should be rescinded ab initio. The balance of Ruling 1975-15 was “affirmed in all other respects,” see Pennzoil, 680 F.2d at 164, n. 13. It should also be remembered that the agency continued to point out that once a significant alteration in producing patterns had occurred at a unit, lease-by-lease accounting procedures would no longer be justified. Ruling 1975-15 was rescinded only “insofar as it requires producers of unitized properties to total all the BPCL’s of the participating leases and to treat the unit as a single property, before such time as there has been a significant alteration in pre-unitized producing patterns of the individual leases." Id. (Emphasis supplied). Throughout the administrative proceedings leading to eventual adoption of a precise definition of “significant alteration in producing patterns” in August, 1976, it is clear that attention was centered upon the fact that lease-by-lease accounting was not permissible after some alteration in production methods precluded any “meaningful comparison” of current and base period production, since “the bulk of the actual production thereafter may be concentrated from only a few producing wells on fewer than all of the several leases____” 41 Fed.Reg. at 4937. The agency noted that a significant alteration normally occurs when “enhanced recovery operations are begun, or ... production from certain leases is reduced or discontinued in preparation for enhanced recovery operations.” Id. “Enhanced recovery techniques,” include the “inject(ion) (of) fluids or gases (which) may have originated in the reservoir ... as long as they are injected by an extraneous energy source.” 41 Fed.Reg. at 4938. In soliciting comments on a method of determining the point at which a significant alteration occurs, in April, 1976, the agency pointed out that: “it is ... clear that due to the eventual alteration of lease-by-lease producing patterns, production from the unit must at some point be treated as the aggregate of production from all the participating leases, in order to obtain a meaningful comparison of production levels.” 41 Fed.Reg. at 16181, (Emphasis supplied). The formal definition of “significant alteration”, which was finally selected by the agency in August, 1976, was, as previously noted, “the increase of production allow-ables for any property that constitutes the unitized property,” or “the application of extraneous energy sources by the injection of liquids or gases into the reservoir.” 10 C.F.R. Section 212.75(b). (Emphasis supplied.) In the District Court, the Government contended that the partial rescission of Ruling 1975-15 was only “a relaxation of enforcement policy,” with the “significant alteration” test serving only as a guidance in compliance audits. Exxon claimed that the “significant alteration” test constituted an entirely new regulation, which would not be applicable to the Hawkins Field Unit until September 1, 1976, the effective date of the formal definition of the term. In ruling on the issue, the District Court ultimately determined that the significant alteration test “amounted to a completely new, although less strict, interpretation of the property definition in Section 212.72.” United States v. Exxon Corp., supra, 561 F.Supp. at 835. The District Court particularly noted, and was puzzled by, Exxon’s insistence that the new test could not be “retroactively” applied before September 1, 1976: (561 F.Supp., fn. 39, p. 843). “Exxon’s barrage of attacks on the agency’s amendments to the regulations in February and September 1976 — decrying their retroactive application, their discriminatory effect, and the rigor of their standard — is puzzling. If the court were to uphold Exxon’s challenges, at most the court could invalidate all or part of Section 212.75 and the significant alterations test as applied to pre-existing units. But that would not leave a vacuum. Instead, there would remain to apply to the Hawkins Field Unit only Section 212.-72, unembellished by either Ruling 1975-15 (rescinded ab initio) or by the significant alterations test. But the TECA has held in the Pennzoil case that implicit in the property regulation itself is the unit property rule, the requirement that a unit BPCL be calculated as of the date of unitization____ Consequently, if Exxon’s attacks were to succeed, it would still find itself in the position it is trying to escape. Exxon apparently seeks the best of all possible worlds. It would like the court to uphold the rescission of Ruling 1975-15 and to rewrite the rule which replaced it to suit Exxon’s practices at the Hawkins Field, in effect leaving it free of any rule at all. The 1976 amendments to the oil price regulations cannot reasonably be read that way.” (Emphasis supplied). In an attempt to avoid the inconsistency in its argument which was noted by the trial court, Exxon has shifted ground in this appeal, and now relies upon what it perceives to be a “generalized significant alteration test ” dependent upon a case by case evidentiary analysis. In contending that the trial court erroneously determined the issue by summary judgment, Exxon first claims that this Court is somehow bound by its 1981 comment in Exxon Corp. v. United States, supra, found at fn. 3, 655 F.2d at 1114, to the effect that the question of when a significant alteration occurred in producing patterns at Hawkins Field was “the key factual question to be litigated at trial.” This statement, of course, was obiter dictum, made without reference to the circumstances surrounding the partial rescission of Ruling 1975-15 or the enactment of 10 C.F.R. Section 212.75, and certainly without benefit of the record put before the trial court in .1983. Furthermore, we clearly noted that the four issues mentioned in this footnote were not before the Court in the 1981 appeal. In claiming that the trial court erroneously “rewrote” the generalized concept of determining whether or not there had been a significant alteration in the Hawkins Field, by its action in adding the “exceptionally restrictive” definition which was not adopted until September 1, 1976, Exxon presents several arguments against “retroactive” application of these tests. In the first instance, Exxon recites much of the same type of “regulatory history” raised in the Pennzoil case with reference to claimed “agency indecision” and inconsistent positions which may have been taken by various agency officials from time to time. While Exxon has not specifically pressed its claim of “estoppel” on this appeal, it appears to rely upon some evidence which it claims indicates that the agency “officially determined” that lease-by-lease accounting at Hawkins Field after January 1, 1975, was not in violation of the regulations. In this respect, an “Audit Review Report,” dated May 27, 1976, indicates that since the agency had rescinded “that part of Ruling 1975-15 which specifically stated that units were to be treated as one property,” a “potential violation amount has not been calculated and Hawkins Field has been eliminated from our report as a potential violation.” However, once the audit of Exxon had been completed, a Notice of Probable Violation was issued on January 10, 1978, focused upon “Exxon’s activities as operator of the Hawkins Field Unit ... during the period September 1, 1973, through December 31, 1976____” The preliminary report of field auditors can not be raised as an official, binding and final agency position upon the question of what constitutes a “significant alteration in producing patterns,” or a determination of when such alteration occurred at Hawkins Field. See Johnson Oil Co., Inc. v. U.S. Dept. of Energy, 690 F.2d 191, 202 (TECA 1982), holding that a proposed remedial order following audit was not an official agency position, and United States v. Fitch Oil Co., 676 F.2d 673, 677 (TECA 1982), ruling that audit policies intended to govern internal agency procedures are not binding on the Department of Energy. D. Ruling 1977-2: Application of Section 212.75 to Hawkins Field. As noted, in January, 1977, the agency determined in Ruling 1977-2 that the definition of “significant alteration” found in Section 212.75 would be used as “guidance” in audits and compliance cases involving units which were formed before February, 1976, which were otherwise subject to the provisions of Section 212.72. After reviewing the Record, and the administrative history of the Ruling, we determine that the District Court properly applied Ruling 1977-2 in allowing Exxon, as Unit Operator, to delay establishing a single BPCL until a significant alteration occurred at Hawkins Field. We further find that the trial court properly determined that question according to the definition of significant alteration found in Section 212.75. The purpose of Ruling 1977-2 was to clear up certain “technical issues” which had arisen in connection with the agency’s implementation of the new crude oil pricing policies set out in the EPCA, and to clarify the August 20, 1976 Notice regarding price regulations applicable to crude oil. These clarifications, of course, were designed to improve the incentives offered under the two tier pricing system. 42 Fed.Reg. at 4409. The agency summarized separate treatments to be afforded three different types of Units, according to the date upon which each became unitized, and/or when significantly altered producing patterns occurred on the property. The comments of the District Court upon the purposes and effect of Ruling 1977-2 succinctly sum up its provisions, 561 F.Supp., fn. 33, at pp. 837-838: “Although Ruling 1977-2 is not a model of clarity, three categories, of units may be distilled from it. The first category consisted of all units formed before February 1, 1976, and at which enhanced recovery operations or a significant alteration in producing patterns occurred before September 1, 1976____ (At these units) a unit BPCL had to be established as of the date the significant alteration in producing patterns occurred. Only Section 212.72 applied to these units____ “The second category consisted of all units, whenever formed, at which a significant alteration in producing patterns occurred only after August 31, 1976. At units in this second category, as well, a unit BPCL had to be established as of the date the significant alteration in producing patterns occurred, but such units enjoyed all the benefits of Section 212.-75.... “The third category consisted of units formed between February 1, 1976 and August 31, 1976 and at which either enhanced recovery operations began, or a significant alteration in producing patterns occurred, prior to September 1, 1976. The agency defined ‘enhanced recovery’ in February 1976 to include gas or liquid injection operations. 41 Fed. Reg. at 4941. The definition of significant alteration in producing patterns, which came only as of September 1, 1976, swallowed up the concept of enhanced recovery, because the new definition included ‘the application of extraneous energy sources by the injection of liquids or gases into the reservoir.’ ... The agency recognized, however, that producing patterns might be altered before gas injection, and so added as an alternative definition of significant alteration ‘the increase of production allowables for any property that constitutes the unitized property.’ ____ “Because operators of units in this third category, formed after February 1, 1976, knew the definition of enhanced recovery when their units were formed, whereas ‘significant alteration’ was defined only in September, the agency chose to apply the two concepts differently. Operators of units at which enhanced recovery operations began before September 1, 1976 were required to establish a unit BPCL as of the date such operations began ... But operators of units at which no enhanced recovery operations began, but where a significant alteration in producing patterns occurred, before September 1, 1976, were allowed to wait until September 1, 1976 to establish a unit BPCL.... “As a practical matter this meant that if an operator began gas or liquid injection — which would constitute both enhanced recovery and a significant alteration — the operator had to establish a unit BPCL as of that date. If there occurred only a shift in production allowables— which would constitute a significant alteration but not enhanced recovery — the operator could wait until September 1, 1976 to establish a unit BPCL.” (Emphasis supplied.) Ruling 1977-2 provided that as to the third category of units, once a unit BPCL was established, “the provisions of Section 212.75 then in effect are applicable____” 42 Fed.Reg. at 4415. As noted by the trial court, “such units were not allowed any measure of imputed new oil, but they were allowed to use the special unit BPCL rule and the provisions for imputed stripper well oil.” 561 F.Supp., fn. 33 at p. 838. Exxon claims that 10 CFR Section 212.75 may not be retroactively applied because standards for retroactivity have not been met. It claims that retroactive application of only “selected portions” of Section 212.-75 is arbitrary and capricious because this creates discriminatory treatment of unitized fields, and irrationally treats “similarly situated” parties in a dissimilar manner. Finally Exxon argues that if the “significant alteration” portion of Section 212.75 is to be applied retroactively, then the beneficial portions of Section 212.75 must also be given retroactive effect. After fully reviewing the record, we determine that the District Court correctly applied Section 212.75 in holding that a single BPCL must be adopted at the Hawkins Field in January, 1975, when it was unitized, because a significant alteration in producing patterns occurred at that time. In the first instance, we reiterate the fact that this Court has previously determined that Section 212.72 in and of itself, required that a single BPCL be established upon unitization. Secondly, and as found by the trial court, the agency, in rescinding the strict unit-property rule established by Ruling 1975-15, established “a completely new, although less strict, interpretation of the property definition in Section 212.72.” 561 F.Supp. at 816. Finally, and as the trial court found, Exxon suffered no prejudice or inquiry from substitution of the Section 212.75 test for the requirement of Ruling 1975-15 that a unit BPCL be established as of the legally effective date of the unitization agreement. Application of Section 212.75 as “guidance” to the question of significant alteration would not be more restrictive than the new February, 1976 announcement which allowed a producer to postpone unit accounting until production patterns had been significantly altered, which occurred generally upon implementation of “enhanced recovery techniques,” or earlier, upon the closing-in of wells and transfer of production to other leases in preparation for enhanced recovery operations. Certainly Exxon can not claim prejudice through reliance upon any “general test” contained in the 1976 announcement, for its decision to unitize and to account upon a lease-by-lease basis was made in 1974, with full knowledge that Section 212.72, unaided by Ruling 1975-15, required unit wide accounting upon unitization. Exxon next asserts that it will sustain prejudice if the Section 212.75 significant alteration test is applied retroactively because the Hawkins Field would never have been unitized if the participants had known that unitwide accounting would be required upon unitization, since many participants would lose “new oil” whi