dissenting:
I respectfully dissent.
It seems to me that, under the peculiar circumstances involved here, the controversy is ripe for judicial review. Two factors are most salient. In the first place, the regulations at issue were promulgated on December 1, 1980, at a time when the power of DOE to issue such regulations was widely considered to be on the verge of extinction. Secondly, the regulations were promulgated only two months before DOE’s power to enforce them was removed by the President’s Executive Order of January 31, 1981, exempting all crude oil products from price controls.
The Federal District Court in Delaware has articulated four tests for determining ripeness pursuant to the Supreme Court’s holding in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). I believe that all four are satisfied here: (1) the issues presented are purely legal; (2) they are based on final agency action; (3) the controversy has a direct and immediate impact on plaintiffs’ businesses, in requiring them to establish and maintain a very substantial reserve to cover their potential liability if their interpretation of the regulations is incorrect; and (4) determination of the validity of these regulations at this time would certainly expedite rather than delay effective agency enforcement. Phillips Petroleum Co. v. FEA, 435 F.Supp. 1239, 1245 (D.Del.1977), aff’d sub nom. Standard Oil Co. v. DOE, 596 F.2d 1029 (Temp.Emer.Ct.App.1978). There is no serious dispute about the existence of the first two requirements in this ease.
With respect to the third requirement, while appellants are not on the “horns of a dilemma” in the traditional sense, as price controls are no longer in effect, their businesses have been directly and immediately affected by DOE’s action (or inaction). In Standard Oil v. DOE, 596 F.2d 1029, 1039-40 (Temp.Emer.Ct.App.1978), this court found sufficient hardship on the basis of: (1) the impact of the agency’s interpretation on the refiners’ budgeting and planning functions; (2) the exposure to multiple private litigation; (3) the burdensome expense and discovery which the proceedings would entail; and (4) the damage to the refiners’ reputations and goodwill stemming from the agency’s interpretation and the consequent conclusion by the public of an overcharge by the refiners. It seems to me that most, if not all, of these elements *821are present here. While it may be that having to carry a large contingent liability on their books is not the sole cause of appellants’ alleged financial problems, the likelihood that the liability will remain contingent for a long time to come will necessarily have a significant effect on their business planning. Cf. Rocky Mountain Oil and Gas Association v. Watt, 696 F.2d 734, 741-43 (10th Cir.1982) (“business-related economic harm” held sufficient to meet Abbott hardship requirement). Since the regulations were promulgated in December of 1980, it is likely that the statute of limitations has not yet run on private actions claiming overcharges by the appellants based on DOE’s interpretation of those regulations; thus, exposure to civil litigation is a real possibility. It appears from the record that appellants have already suffered damage to their reputations as a result of publicity surrounding the enforcement of the amended PAM and layering rules. Finally, the expense associated with protracted administrative proceedings before a caretaker agency is not inconsiderable.
As to the fourth ripeness requirement, pre-enforcement judicial review of these regulations should assist the agency rather than hinder it. In the usual case, the deferral of judicial review until the agency has had a chance to act is merely a recognition of the agency’s legitimate interest in enforcing the regulations promulgated by it. Furthermore, in the usual case a party challenging the validity of regulations can expect a reasonably prompt hearing before the relevant agency. Here, by contrast, the agency has shown little interest in enforcing the rescinded price control regulations and the appellants face a delay in obtaining a hearing that could last indefinitely, given the reduction in DOE’s staff following the Executive Order. Thus, by allowing the district court to rule on the validity of the regulations at this time, we would simply be accelerating the enforcement process: if the regulations are held to be lawful, DOE can proceed to enforce them with much less reason for delay; if they are held to be unlawful, the issue will evaporate. See DOE v. State of Louisiana, 690 F.2d 180, 186-87 (Temp.Emer.Ct.App.1982), cert. denied, ___ U.S. ___, 103 S.Ct. 1522, 75 L.Ed.2d 946 (1983); Northern Natural Gas Co. v. DOE, 464 F.Supp. 1145, 1155 (D.Del. 1979).
While I believe that we should be reluctant to create an exception to traditional ripeness requirements, I feel that the special circumstances of this case call upon us to recognize such an exception where the plaintiffs’ hardship is compounded to this extent by the government’s decision to strip an agency of its enforcement powers. It seems to me manifestly unfair for the government, on the one hand, to accuse the appellants of violating the regulations and, on the other, not to allow them to vindicate their position for several more years, when the government is itself responsible for issuing the regulations only two months prior to deciding that they should no longer be enforced.