# Motion to Dismiss or Affirm — Aberdeen & Rockfish R. Co. v. Students Challenging Regulatory Agency Procedures (SCRAP) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0118%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Motion to Dismiss or Affirm - **Published:** January 1, 1975 - **Citation:** 422 U.S. 289 ## Text | te el Sup as. «Ble ~. @ FiLkD AUG 2 1914 ——_—$——— rere JR.,CLERK IN THE ‘a Supreme Court of the United States OcToBER TERM, 1974 Nos. 73-1966 and 73-1971 UNITED STATES OF AMERICA and [INTERSTATE COMMERCE CoMMISSION, Appellants v. STUDENTS CHALLENGING REGULATORY AGENCY PROcEDURES (8.C.R.A.P.) et al., Appellees ABERDEEN AND ROCKFISH RAILROAD COMPANY, et al., Appellants . A STUDENTS CHALLENGING REGULATORY AGENCY PrRoceDURES (S8.C.R.A.P.) et al., Appellees On Appeal from the United States District Court for the District of Columbia MOTION TO DISMISS OR FOR SUMMARY AFFIRMANCE BY NATIONAL ASSOCIATION OF RECYCLING IN- DUSTRIES, INC.. COMMERCIAL METALS CO., LV. SUTPHIN CO. AND FRANKEL BROTHERS & CO. INC. Epwarp L. MERRIGAN Attorney for Appellees National Association of Recycling Indus- tries, Inc., Commercial Metals Co., 1. V. Sutphin Co. & Frankel Brothers & Co. Ine. 888 17th Street, N. W. Washington, D. C. 20006 Press or Byron S. Apams Parvrina, Inc., Wasurneron, D. C. <> > TABLE OF CONTENTS Page Motion To Dismiss or for Summary Affirmance and SE ccccuedesckevsdsasauwees cess 2 ES Or Ec cicecd vdunieniéeuseesutsesenes 2-11 EES © i.a do cn cducedbebrceddeedcdeosictanseusses 12 I. This Court Lacks Jurisdiction Over Appellants’ Direct Appeals Under 12 U.S.C. $1253 ........ 12-13 II. The District Court’s Judgment Should Be Af- firmed or The Appeals Dismissed Because The Issues Presented Are Not Substantial ........ 13-18 SSOP EL LF TNT OE Te 19 TABLE OF CITATIONS CasEs: Baltimore & O.R.R. v. U.S., 386 U.S.372 (1967) ...... 13 Calvert Cliffs Coordinating Committee v. Atomic En- ergy Commission, 146 U.S.App.D.C. 33, 38, 449 pb 8 fe errr 15, 16 City of New York y. United States, 337 F. Supp. 150 Sn BOUND stesdeneneueerseseseces 7,8, 10, 14, 18 Conservation Council of North Carolina v. Froehlke, 4 Cir., 374 F.2d 664, 665 (1973) ...........2000. 15 Environmental Defense Fund, Inc. v. Froehlke, 8 Cir., ee ae Ss Se GHSED ccecsccecenecsncccences 15 Greene County Board vy. Federal Power Commission, 455 F.2d 412 (2d Cir.), cert. denied 409 U.S. 849 6, 14, 15, 16, 18 Gunn vy. University Committee To End The War, 399 as Ss Ss OP Oe Ges EE coecensccescsoncseses 12 Harlem Valley Transportation Association v. Stafford, Chairman, Interstate Commerce Commission, 2d Cir., June 18, 1974, Docket No. 73-2496 ........ 8, 9, 14 il Table of Contents Continued Page Hutcherson v. Lehtin, 399 U.S. 522, 90 S. Ct. 2238 DEE Snsdseneenseenceccedenneseceussiaeesess 13 Public Serviee Commission of Missouri v. Brashear Freight Lines, Inc., 306 U.S. 204, 59 S. Ct. 480, Be is eh Ge Cc Ka tnccccccnpeesesescosess 12, 13 Rockefeller v. Catholic Medical Center, 397 U.S. 820, 90 S. Ct. 1517, 25 L. Ed. 2d 806 (1970) ......... 12, 13 S.C.R.A.P. vy. United States, 346 F. Supp. 189,198 .. 8 S.C_R.A.P. v. United States, 371 F. Supp. 1291 (1974) 15 United States vy Allegheny-Ludlum Steel Corp., 406 Se PE CED Saheb cnecdeduceKenderecise sates 13 United States v. S.C.R.A.P., 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973) @..........ccccees 14 STATUTES: National Environmental Poliey Act, 42 U.S.C. § 4321 Se ON. SRS bO 06 bn Onde ds dese daSdeesbavesetescecs 4,5 ie a PY sounhddeeeseucducduseedasnnssdsces 2, 12 Public Law 93-236, Regional Rail Reorganization Act es SE dé datacdncduddalsasseewsceses 17 IN THE Supreme Court of the United States OcToBER TERM, 1974 Nos. 73-1966 and 73-1971 UNITED STATES OF AMERICA and INTERSTATE COMMERCE ComMMISsSsION, Appellants V. STUDENTS CHALLENGING REGULATORY AGENCY Procepures (8.C.R.A.P.) et al., Appellees ABERDEEN AND RocKFisH RAILROAD COMPANY, et al., Appellants Vv. STUDENTS CHALLENGING REGULATORY AGENCY Procepures (8.C.R.A.P.) et al., Appellees On Appeal from the United States District Court for the District of Columbia MOTION TO DISMISS OR FOR SUMMARY AFFIRMANCE BY NATIONAL ASSOCIATION OF RECYCLING IN- DUSTRIES, INC.. COMMERCIAL METALS CO. LV. SUTPHIN CO. AND FRANKEL BROTHERS & Co. INC. Appellees National Association of Recyeling Indus- tries, Inc. (NARI), Commercial Metals Co., L.V. Sutphin Co. and Frankel Brothers & Co. Inc. hereby 2 move, under and pursuant to the provisions of Rule 16 of the Supreme Court Rules— (1) to dismiss the two appeals filed by appel- lants herein on the ground that this Court has no jurisdiction over such direct appeals from a Dis- trict Court judgment under the provisions of Title 28 U.S.C. § 1253; or in the alternative, (2) for summary affirmance of the District Court’s judgment reported at 371 F.Supp. 1291 on the ground it is manifest that the issues now raised by appellants are not substantial and the decision and judgment of the District Court are plainly sound, reasonable and correct. STATEMENT OF FACTS IN SUPPORT OF THE MOTION Appellee NARI is the trade association for the non- ferrous metals, waste paper, textile, plastics and rubber recycling industries. Its membership consists of ap- proximately 700 firms located throughout the United States which collect, process and utilize for manufac- turing purposes the aforementioned recyclable mate- rials. Appellees Commercial Metals Co. of Dallas, Texas, L.V. Sutphin Co. of Cincinnati, Ohio, and Frankel Brothers & Co., Inc. of Rochester, New York, are, in turn, members of NARI and each is engaged in the recycling of solid waste materials and recovery of useful resources from discarded solid wastes which otherwise would have to be burned, buried or sim- ilarly disposed at public expense, with obvious adverse effects upon the environment. Over the vears since 1968, NARI, numerous other private recycling and environmental organizations, and various agencies of the Federal Government (inelud- 3 ing the President’s Council on Environmental Quality, the Environmental Protection Agency, the Depart- ments of Commerce and Liuterior and the General Serv- ices Administration) have repeatedly petitioned the Interstate Commerce Commission not to license or ap- prove any further across-the-board annual percentage increases in railroad freight rates for the transporta- tion of recyclable materials until the Commission first takes effective action to correct the grossly diserim- inatory, unreasonable base rates charged by the rail- roads for such transportation, which rates have his- torically impeded and stifled the marketing of re- eyelable commodities and artificially stimulated the utilization and depletion of competing, searece virgin natural resources, again with serious adverse effects on the environment. The Commission and the railroads have been com- pletely impervious to these pleas. The railroads have continued to seek and the Commission has approved, without first investigating the unlawful nature of the base rate structure, the following annual percentage inereases in rates charged for the transportation of recyclable commodities: Inerease In Inerease In Waste Paper Non-Ferrous Metal ICC Case No. Year Rates _ Serap Rates Ex Parte 256 1967 3% 3% Ex Parte 259 1968 5% 5% Ex Parte 262 1969 % % Ex Parte 265 1970 6% 6% Ex Parte 267 1971 11% 11% Ex Parte 281 1972) 2.5% surcharge plus 2.5% surcharge plus 3% % The evidence developed in this case, however, now demonstrates clearly that, as repeatedly asserted by 4 NARI and the others mentioned above, these constant annual rate increases have been extremely damaging to the pre-existing discriminatory rate structure in that they have operate? substantially to broaden the net disparity in rates which already existed between those charged by the railroads for the transportation of reeyclable commodities and those simultaneously charged for the transportation of competing virgin materials. That evidence, obtained from the Interstate Commerce Commission itself, shows: * (1) That during the period from 1959 through 1971, the net disparity in average rates charged for the transportation of competing wood pulp and waste paper grew from 13.9¢ per hundred pounds to 18.6¢ per hundred pounds, the actual average rates charged per hundredweight being as follows: Year W oodpulp Waste Paper 1959 17.4¢ 31.3¢ 1971 24.4¢ 43.0¢ (2) That during the same period (1959-1971), the net disparity in average rates charged for the transportation of competing non-ferrous metal virgin ores and concentrates and non-ferrous metal scrap grew from 13.3¢ per hundred pounds to 17.7¢, the actual rates per hundredweight being as follows: Year Virgin Ores Scrap Metal 1959 D1.7¢ 65.1¢ 1971 TO.3¢ 88.0¢ In 1966, while the railroads and the Commission were proceeding in the manner just described, Congress passed the National Environmental Poliey Act (42 ' See Commission's Environmental Impact Statement, Ex Parte 281, pes. 84, 85. 5 U.S.C. § 4321 et seq.). That statute states, at 42 U.S.C. § 4331(b) : ‘**(b) In order to earry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considera- tions of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may—.... (6) enhance the quality of renewable re- sources and approach the maximum attainable recycling of depletable resources.’’ (Emphasis supplied. ) Section 102 of NEPA (42 U.S.C. § 4332) thereupon provides: ‘The Congress authorizes and directs that, to the fullest extent possible: ‘*(1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall—... **(C) inelude in every recommendation or report on... major Federal actions signifi- eantly affecting the quality of the human en- vironment, a detailed statement by the respon- sible official on— (i) the environmental impact of the pro- posed action, (ii) any adverse environmental effects whick cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, 6 (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. ‘*Prior to making any detailed statement, the respousible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to the environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and en- foree environmental standards, shall be made avail- able to the President, the Council on Environ- mental Quality and to the public... and shall ae- company the proposal through the existing agency review processes. ”’ Shortly after NEPA became effective, therefore, parties appearing before the Commission in important railroad cases contended that the Commission could no longer completely ignore relevant environmental considerations in its decision-making process, and that henceforth its major actions necessarily had to be sup- ported by Environmental Impact Statements prepared as directed by NEPA. The Commission, however, ex- hibited almost complete disdain for the new federal statute, and as early as 1971, it sought to intervene in Greene County Board vy. Federal Power Commission, C.C.A, 2, 1971, 455 F.2d 412, cert. denied 409 U.S, 849— a case wherein the Federal Power Commission was seeking to avoid regulatory agency compliance with NEPA. ICC’s intervention was rejected, however; the 7 Second Cireuit ruled against FPC’s position, and this Court denied certiorari. In City of New York v. United States, 337 F. Supp. 150 (D.C., N.Y. 1972), a case involving proceedings before the Interstate Commerce Commission itself, the Commission directly defied NEPA and endeavored to license the abandonmeut of railroad facilities without the preparation of a supporting Environmental Impact Statement. A Three-Judge Court in New York criti- cized the Commission for its ‘‘slow reaction”’’ to the directives of NEPA and stated that the Commission was powerless to “disregard ... the law’’ (337 F. Supp. 158-160). The Court remanded the case to the Com- mission, stating, at 337 F. Supp. 160: ‘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.... In any event, preservation of the integrity of NEPA necessitates that the Commission be required to follow the steps set forth in § 102, even if it seems likely that those steps will lead it to adhere to the present result. Thus, this proceeding must be remanded to the Commission for it to bring itself into compliance with the law.”’ Albeit the District Court’s decision in City of New York, supra, was rendered on January 20, 1972, the Commission nevertheless proceeded 12 days later (on February 1, 1972) in the case at bar (Ex Parte No. 281, Increased Freight Rates, 1972) to license another in- crease in rates for the transportation of recyclables without preparing any Environmental Impact State- ment under NEPA. The Commission instead relied 8 on the same type of terse, unsupported conclusion it made in City of New York, supra, to wit, that, in the Commission’s opinion, the challenged rate increase “would have no significant adverse effect... on the quality of the human environment within the meaning of NEPA” (See 341 LC.C. 288, 314). On April 24, 1972, that rate increase was extended in duration, again without any effort on the part of the Commission to comply with NEPA. The Commission’s continued defiance of the law in Ex Parte 281 thus led to the commencement of this action by the original plaintiffs S.C.R.A.P. Faced with this litigation, the Commission suddenly promised both the District Court and the Chief Justice of this Court that it intended to comply with all of the re- quirements of NEPA before it issued its final report in Ex Parte 281 with reference to the allowance of permanent rate increases for 1972 (See S.C.R.A.P. v. United States, 346 F.Supp. 189, 198). Thereafter, however, the Commission flatly ignored those promises, ind when it rendered its final report on October 4, 1972, it supplied no supporting Impact Statement under NEPA. Once again, it retreated to its old rejected, unsustainable City of New York position by stating (341 L.C.C, 288, 314): “Inasmuch as we conclude that our actions herein will neither actually nor potentially sig- nificantly affect the quality of the human environ- ment, we have not included in our Report an ex- tensive formal impact statement.’’ In the meantime, in still another case simultaneously pending in the United States District Court for the Southern District of New York (Harlem Valley Trans- 9 portation Association y. Stafford, Chairman, Inter- state Commerce Commission), the Commission was contending, this time directly contrary to the position taken by the Department of Justice in the same case, that it had no obligation to prepare any Impact State. ments under NEPA until it reached its final decisions in cases, i.e., the Commission had no duty under NEPA to prepare draft Impact Statements at earlier stages of Commission proceedings. That contention was bluntly rejected by the District Court on June 21, 1973, and its decision was affirmed by the Court of Appeals for the Second Circuit on June 18, 1974 (See Harlem Valley Transportation Association, et al. v. Stafford, Chairman, Interstate Commerce Commission, C.C.A. 2, Docket No. 73-2496, decision rendered 6/18/74). In its opinion, the Second Circuit stated: ‘* .. (W)hile we recognize there are limits to what may reasonably be expected from agency compliance with NEPA, we cannot excuse... noncompliance with NEPA such as the ICC here seeks to justify.” In the case at bar, when the Commission once again failed to support its Final Report in Ex Parte 281 with any Environmental Impact Statement under NEPA, protesting petitions were filed with the Commission by the Council on Environmental Quality, the Environ- mental Protection Agency, appellees NARI et al. and others (See 353 F. Supp. 320, 321). Plaintiffs S.C.R.A.P. went further and filed a motion for injunc- tive relief with the District Court in this action. At that point, the Commission suspended its Final Report and Order of October 4, 1972 in Ex Parte 281 as they applied to recyclable commodities until it could further evaluate the situation under NEPA. 10 It was therefore with this background of arbitrary, capricious resistance and opposition to all of the basic requirements of NEPA coupled with its deaf refusal to respond in any way to the persistent pleas it had re- peatedly received over the years not to license any further increases in rates for the transportation of re- eyclable commodities until it first eliminated the basic rate discriminations involved, that the Commission be- latedly set out to prepare an Environmental Impact Statement which might somehow be construed as suf- ficient to support the groundless conclusions it had already reached and expressed in its suspended Final Report in Ex Parte 281. Appellee NARI, cognizant of that background and fearful of the Commission’s true motives, promptly asked the Commission whether it intended to hold a hearing on the environmental aspects of this case be- fore it issued any further statements in this matter under NEPA. In this regard, in City of New York v. United States, supra, when the Commission was ordered by a District Court to comply with NEPA, the Commission, upon remand, immediately scheduled a hearing at which ‘‘ All parties were given full oppor- tunity to present expert evidence on the environmental aspects of the case’ (See 344 F.Supp. 929, 938). But here, the Commission summarily rejected NARI’s request for a hearing, stating the Commission intended to proceed entirely ex parte. It was thus hardly surprising that soon thereafter, on March 5, 1973, the Commission issued a draft Environmental Impact Statement in this case which both the Council on Environmental Quality and the Environmental Protection Agency and others labeled totally ‘‘inadequate”’ and otherwise violative of NEPA. 11 The Commission, plainly accustomed to such low grades under NEPA, nevertheless issued the said Impact Statement in final form on May 2, 1973, over the vigorous dissent of two of its own Commissioners and the abstention of a third. The Commission thereupon reinstated its original Final Report in Ex Parte 281 and licensed still an- other 3% permanent increase in freight rates for re- cyclable commodities. This sixth successive increase since 1968 imposed another $9,600,000 a year in un- lawful, grossly discriminatory freight rates upon the recycling industry, without any effort on the part of the Commission to investigate and correct the diserimi- natory nature of the aggravated base rate structure. Appellees promptly filed motions for summary judgment and appropriate injunctive relief in the Dis- trict Court. On February 19, 1974, the Three-Judge Court ruled that “‘the Commission’s efforts to meet the commands of NEPA were substantially deficient.’ The case was thus remanded to the Commission ‘‘for ful- fillment of its NEPA obligations” (371 F. Supp. 1291). The District Court, however, refused to grant any injunctive relief, stating: ‘*However, because of our uncertainty concern- ing the meaning of the Supreme Court’s decision last term in Atchison, Topeka & Santa Fe R. Co. v. Wichita Board of Trade, 412 U.S. 800, 93 S. Ct. 2367, 37 L. Ed. 2d 350 (1973), we refrain from issuing an injunction restraining the railroads from collecting the increased rates pending the Commission’s reconsideration.’’ ARGUMENT 4 This Court Lacks Jurisdiction Over Appellants’ Direct Appeals Under 12 U.S.C. § 1253 Both Government appellants and railroad appellants rely exclusively on 28 U.S.C. § 1253 to support their direct appeals to this Court from the District Court’s judgment of February 19, 1974.° But 28 U.S.C. § 1253 allows direct appeals to this Court only from judg- ments “‘granting or denying ... an interlocutory or permanent injunction.” These two appeals, however, are not appeals **from an order granting or denying ...an... injunction.” While the District Court did deny an injunction which had been sought by appellees (371 F. Supp. 1307-10), appellees have not perfected appeals from that denial. Appellants, on the other hand, having clearly pre- vailed on the injunction issue below so that the rail- roads are still collecting the new rate increase of #£9,600,000 a year authorized by the Commission, have no standing to appeal from that massive victory (Publie Service Commission of Missouri v. Brashear Freight Lines, Inc., 306 U.S. 204, 59 8. Ct. 480, 83 L.Ed. 608 (1939); Gunn v. University Committee To End The War, 399 U.S. 383, 391, 90 S.Ct. 2013 (1970); Rockefeller v. Catholic Medical Center, 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806 (1970). Indeed, the District Court expressly ruled at 371 F.Supp. 1291, 1293: ‘*) .. (Wie refrain from issuing an injunction restraining the railroads from collecting the in- 2 Government’s Jurisdictional Statement, p. 2; Railroads’ Juris- dictional Statement, p. 2. 13 creased rates pending the Commission’s recon- sideration.’’ Patently therefore both direct appeals to this Court must be dismissed for lack of jurisdiction under 28 U.S.C. § 1253 ( Public Service Commission v. Brashear, supra; Hutcherson v. Lehtin, 399 U.S. 522, 90 S.Ct. 2238 (1970); Rockefeller v. Catholic Medical Center, supra). The two cases upon which appellants rely to support their jurisdictional claims are plainly inapposite be- cause both involved appeals from orders “‘ granting or denying ...an...injunction.’? Daltimore & O.R.R. v. ULWS., 386 U.S. 372 (1967) involved an appeal by losing parties who had sought an injunction which was denied by the court below. United States v. Alleghcny- Ludlum Steel Corp., 406 U.S. 742 (1972), in turn, in- volved two cases, one in which an appealing party requested injunctive relief that was denied, and the other in which the Interstate Commerce Commission had opposed an injunction that was granted by the District Court. II. The District Court’s Judgment Should Be Affirmed or the Appeals Should Be Dismissed Because the Issues Presented for Review Are Not Substantial. In addition to the fatal jurisdictional barrier dis- eussed hereinabove, the instant motion should be granted because the two appeals do not present sub- stantial questions for review by this Court. Essentially, the only real question again presented by appeallants is whether the Interstate Commerce Commission, like all other federal agencies, is subject to the National Environmental Policy Act, 42 U.S.C. 14 4321 et seq., so that it must follow the procedures pre- scribed by that federal statute and thus fairly develop and prepare environmental impact statements to sup- port its major federal actions. Clearly, this same basic question, raised time after time in the past, has already been firmly resolved against appellants by the decisions in Greene County Board vy. Federal Power Commission, 455 F.2d 412 (2d Cir.), cert. denied 409 U.S. 849; City of New York v. United States, 337 F.Supp. 150 (S8.D.N.Y., 1972) ; and Harlem Valley Transportation Association v. Stafford, Chairman, Interstate Commerce Commission, 2d Cir., June 18, 1974, Docket No. 73-2496). The correctness of these recent decisions is not sub- ject to doubt. As this Court recognized in United States v. S.C.R.A.P., 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), the *‘policies and goals set forth in [NEPA] are supplementary to those set forth in existing authorizations of Federal agencies’’ (See 93 S.Ct. 2419; 42 U.S.C. §43835); and Congress spe- cifically directed all federal agencies, with no exemp- tion of the Interstate Commerce Commission, to take all actions necessary to conform their existing au- thority and administrative procedures to the require- ments of NEPA (See 42 U.S.C. § 4333). Thus, this Court readily assumed in S.C.R.A.P. that “‘there is general judicial power to determine if an agency has complied with NEPA, and to grant equitable relief if it has not’’ (See 93 S.Ct. 2420). And, of course, this is precisely what the District Court has now done in the case at bar. It exercised its ‘general judicial power to determine if the [ICC] has complied with NEPA,”’ and when it found that the 15 Commission had not correctly complied, is simply re- manded the case to the Commission for further pro- ceedings consistent with the requirements of NEPA (See S.C.R.A.P. vy. United States, 371 F. Supp. 1291 (1974) ). In line with the holding in Calvert Cliffs Coordinat- ing Committee v. Atomic Energy Commission, 146 U.S. App. D.C. 33, 38, 449 F.2d 1109, 1114 (1971), the District Court ruled that NEPA ‘sets a high stand- ard for the agencies, a standard which must be vigor- ously enforced by the reviewing courts.’’ It also held, consistent with Greene County Board and Calvert Cliffs, supra, that the ICC, like other federal agencies, must meet the procedural requirements of NEPA ‘*fully and in good faith,’’ and its environmental impact statement cannot be prepared in an arbitrary, capri- cious manner, and it cannot be sustained if it patently gives insufficient weight and attention to environmental values (See 146 U.S.App.D.C. at 39, 449 F.2d at 1115). The District Court carefully restricted its review of the Commission’s impact statement to matters of pro- cedure under NEPA and it expressly avoided ‘‘any substantive review,’’ albeit federal courts in other cir- cuits previously extended their review of NEPA impact statements to matters of substance (See Conservation Council of North Carolina v. Froehlke, 4 Cir., 473 F.2d 664, 665 (1973); Environmental Defense Fund Inc. v. Froehlke, 8 Cir., 473 F.2d 346, 353 (1972) ). In essence, therefore, the District Court found that in this ease the Commission, which initially doggedly refused to comply with NEPA at all, was now guilty of mere pro forma compliance (See App. A, Govt’s J.S., pg. 28a); that, contrary to Greene County Board and 16 Calvert Cliffs, supra, the Commission’s impact state- ment is ‘‘deficient’’; it does not contain ‘‘individualized good faith consideration and balancing of environ- mental factors’’; it is combative, defensive and advoca- tory’’; and does not respond in any respect to sugges- tions and recommendations made in good faith by other federal agencies (See App. A, Govt’s J.S., pgs. 28a- 39a). Moreover, the District Court found that the Commis- sion arbitrarily and ecapriciously failed to give any consideration whatsoever to the discriminatory, debi- litating underlying rate structure before it prepared and finally adopted its pro forma impact statement under NEPA. In this connection, the District Court stated (See App. A, Govt’s J.S., pgs. 34a-39a) : ‘It is the underlying rate structure which the percentage increases aggravate; if this structure contributes to the degradation of our environment, then the increases would at least presumptively aggravate that contribution. ... The Commission’s failure to hold down the rate increases on recyel- ables would thus have a cumulative impact on the environment. Such cumulative impacts must be considered in NEPA statements. ... ‘The necessity for the Commission to consider the environmental impact of the underlying rate structure before approving rate increases on re- cyclable commodities is further underscored by the recent enactment of Public Law 93-236, 93rd Con- gress, the Regional Rail Reorganization Act of 1973. Section 603 of the Act requires the Commis- sion to ‘adopt appropriate rules’ to ‘eliminate dis- crimination against the shipment of reeyelable materials in rate structures ... where such diseri- mination exists.’ This provision is a legislative recognition of discrimination against reeyelables in the existing railroad rate structure and a legis- 17 lative direction to the Commission to eliminate it. The responsibility imposed by NEPA upon the commission to ‘approach the maximum attainable recycling of depletable resources,’ 42 U.S.C. § 4331(b) (6), surely cannot be fulfilled unless this provision is complied with before rate increases om recyclable commodities are approved.”’ Thus, the District Court acted properly and correctly when it rejected the Commission’s pro forma, arbi- trary, incomplete environmental impact statement, and when it simply remanded this case to the Commission for further administrative proceedings consistent with the requirements of NEPA and Section 603 of Public Law 93-236, referred to in the last mentioned excerpt from the District Court’s opinion. Plainly, therefore, there is absolutely no substance to the railroads’ contention that the *‘lower court had no authority to act in this case.’’ There is nothing whatever in the Interstate Commerce Act or any other statute which prevents judicial review of a federal agency’s compliance or non-compliance with NEPA. Indeed, as stated above, this Court indicated in United States v. S.C.R.A.P., supra, that ‘‘there is general judi- cial power to determine if an agency has complied with NEPA, and to grant equitable relief if it has not” (See 93 S.Ct. 2420). Nor is there any validity to the Government’s hollow contention that the District Court’s decision somehow ‘‘denies the railroads the benefit of timely general revenue orders.’’ In the case at bar, the District Court denied injunctive relief and expressly allowed the rail- roads to go ahead with the collection of the challenged rate increases while the Commission reconsiders the case under NEPA, If the Commission now comes to grips in this case with the discriminatory nature of the 18 underlying base rate structure, there will be no delays in future cases because all of the relevant facts will have been developed here, for use by the Commission and the parties, in this case and in all future rate proceed- ings. Thus, in the final analysis, the District Court’s order to the Commission in this case will actually resolve that issue once and for all, and will thus result in substantial time savings in future rate increase proceedings. Finally, the Government’s hearing contentions are completely specious. In City of New York, supra, the Interstate Commerce Commission, on its own motion, expeditiously held a full hearing to develop the facts it and the parties there involved deemed necessary for inclusion in a NEPA statement after the Commis- sion was firmly ordered by the court in that case to comply with NEPA. Also, the Commission reg- wlarly holds hearings in rate inerease proceedings under Section 15(7) of the Interstate Commerce Aet, so there is nothing strange or unusual about the Dis- trict Court’s hearing directive to the Commission in the instant Section 15(7) ease. Finally, this Court denied certiorari in Green County Board, supra, where the Second Cireuit ruled, at 455 F.2d 422, just as the District Court has now done in the case at bar: **... [W]e conelude that the Commission was in violation of NEPA by conducting hearings prior to the preparation by its staff of its own impact state- ment... ‘* .. [T]he [impact] statement may well go to waste unless it is subject to the full scrutiny of the hearing process .... 9° 19 CONCLUSION The motion to dismiss or affirm should be granted. Respectfully submitted : Epwarp L. MERRIGAN Attorney for Appellees National Association of Recycling Industries, Inc., Commercial Metals Co., I. V. Sut phin Co. & Frankel Brothers & Co. Ine. 888 17th Street, N.W. Washington, D.C. 20006 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0118%3A04. Public record. Not legal advice.