Brief for Appellant — Aberdeen & Rockfish R. Co. v. Students Challenging Regulatory Agency Procedures (SCRAP)

No. 73-1966

IN THE

Supreme Court of the United States

OcTOBER TERM, 1974

ABERDEEN AND ROCKFISH RaILRoap COMPANY, cf a/.,

A ppellants,

STUDENTS CHALLENGING REGULATORY AGENC\

Procepures (S.CLR.LA.P.). et a/..

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

REPLY BRIEF OF THE ABERDEEN AND ROCKFISH

RAILROAD COMPANY, ET AL.

EL TID I CE SIE OTT TIES TES, SPEIER, ACCT EET EI

T. A. MILLER CHARLES A. THorsKY

Southern Pacific Mictiaen Boupin

Transportation Co. Waren PPRLLERSTERIN

One Market Street SSS Sixteenth Street, NW

San Francisco, Calif Washington. D.C. 2OOOG

: .

peste Mpwarp A. Kater

ALBERT 15. Russ, Jk 1600 Three Penn Center

Seaboard Coast Line Philadelphia, Pa. 19102

Railroad vs

P.O. Box 27581 James L. Tarury

P.O. Box 1808

Washington, D. ©. 20013

Attorneys for Aherdecu

and Roektish Railroad

Company, «tal

Richmond. Va. 2326)

Mareh 1975

.. Seal

TABLE OF CONTENTS

Page

I. APPELLEES’ CLaims Tuat tue Case Is Moor or

Tat THE District Court Orpver Is Nor ApprAL-

ABLE Are WitHovut Merit anp Do Not, in Any

Event, Warrant AFFIRMANCE OR DISMISSAL OF

Teen nn cavecdétecces 2

Il. Tue Districr Covrr Lackep Jvurispiction To

Review tHe Commission’s GENERAL REVENUE

i cweeeceeces 12

III. On rue Merits or tue Case, tHE Lower Court

Errep sy Svusstirutinc Its JuDGMENT FOR

THat oF THE ResponsispLeE AGENCY ............ 17

EEE 27

TABLE OF CITATIONS

CASES:

Alabama Power Co. vy. United States, 316 F.Supp. 337

(D.D.C. 1970), aff’d by an equaily divided Court,

Ne oc wce doe becee dees passim

Atchison T. € S.F. Ry. v. Wichita Board of Trade, 412

ee de ccc ccc cusencccces 3

Atlantic City Elec. Co. v. United States, 306 F.Supp.

338 (S.D.N.Y. 1969) aff’d by an equally divided

Court, G00 UB. TB CIG7TO) .. 0. ccc cccccccccdess passim

Bowman Transp., Inc. v. Arkansas-Best Freight

System, Inc., 48 U.S.L.W. 4091 (U.S. December 23,

EMEC hs Obes desdeccceceeceseecscess 23

Chicago, M., St. P. d P. RR. v. United States, 366 U.S.

| UE cece eweconecnes 8

City of New York vy. United States, 344 F.Supp. 929

EE SEE Oe 18

Cramp v. Board of Public Instruction, 366 U.S. 934

UE Udder acccesessedoccececccecs 5

Duke Power Co. v. Greenwood County, 299 U.S. 259

ee cece edaneccecscoeccceccces 4

il Table of Citations Continued

Page

Edwards Motor Transit Co. v. United Stat 201

“"F. Supp. 918 (M.D. Pa. 1962) ........-..0000-. 23

electronic ndustries Ass'n v. United States, 401 U.S.

| re rrr rer eee memes. passim

Environmental Defense Fund yv. Cor ]

“ se ; ps of Engineers,

470 F.2d 289 (Sth Cir. 1972), cert. denied, hi? US.

P _ 8: Eason ae bausane ean a a ee 21

“nvironmental Defense Fund vy. Corps o Engi seers.

492 F.2d 1123 (5th Cir, 1974) es 4 ee da

F wt we Express v. United States, 351 U.S. 40

95

(1956) nee eee cece e eee eee e ence e cence ceeees 10

Graver Tank & Mfg. Co. v. Linde Air P ;

/ 336 US. 971 (1949) .......... eileen _ 24

tunn v. University Committee to End the War. 399

+t inet

ICC v. Inland Waterways Corp., 319 U >

ICC vy. J-1 Transp. Co., 368 Us 81 (1961) one Sone =

ICC v. Mechling, 330 US. 567 (1947) 0... 23

Kennedy v. Menloza-Martinez, 372 US. 144 (1963)... 11

Lang Transp. Corp. v. United States, 75 F.Supp. 915

P he ry Se Sieduvesanadececes 23

Louisville & Nashville R. R. v. United States, 245 US.

~ 463 (1918) ........... piveenndansiniststenc

Mitchell v. Donovan, 398 U.S. 427 (1970) .......... 11 12

RE .

F.2d 827 (D.C. Cir. 1972) .............. 19

Phillips v. United States, 312 US, 246 (1941)... 11

ublic Service Comm’n vy. Bras Freight Lines

Inc., 306 U.S. 204 (1939) . se wai , —— _ 11

Rep rbear os

Scientists’ Institute for Public In forma tion v, AEC ’ .

ONL F20-1079 (DC Cir, 7) nn EO ag

ie Viited States, 371 F.Supp. 1991 (D.D.C ‘

: “tendeunesuctudiaed sate ae

Stainback v. Mo Hock Ke Lok Po. 3 —- eta passim

ae eeneteretenty a

nited States v. Divrie Miieans i Bette seers eseeees

U.S. 409 (1967) ...... eo seers ~ ws

ee et

ow 1 geet.

tt ee, Se tates Osan 9 ae?

See ID ee Fe et Fede

Table of Citations Continued ili

Page

United States v. Hancock Truck Lines, 324 U.S. 774

(1945) -.ccccccccccccccccsesccesccesecssccsccss 5

United States v. Louisville & Nashville R.R., 235 USS.

BIA (DIR)... cc cccccccscccccccccscccsscsces 23

United States v. Munsingwear, Inc., 340 U.S. 36 (1950) 4

United States v. National City Lines, 337 U.S. 78

(1DED) ..ccccccccccccccccccccsscscecsescececes S

United States v. Pierce Auto Freight Lines, Inc., 327

US. 515 (1946) 2.0... ccc cece eee cece eeeecenees 23

United States v. Ryder, 110 U.S. 729 (1884) ......--- S

United States v. SCRAP, 412 U.S. 669 (1973)........ 3, 21

United States v. United States Gypsum, 333 U.S. 364

C*:) coe 24

ICC Ex Parte PROCEEDINGS:

Ex Parte No. 270 ....cccccccceceeeeeeeeseseeeeses 24, 25

Final Environmental Impact Statement (Sub. Nos.

BAUD ccccsncsesasecsccessusesssecesaneuss 24, 25

Ex Parte No. 281, 346 1.C.C. 88 (1973) .......+++- passim

Ex Parte No. 295 .....ccccccscccccccccseccssecces 24, 26

Final Environmental Impact Statement (Sub. No.

DD vcadctcovccdasnccscutsescudeseneeseses 24, 2

STATUTEs:

Interstate Commerce Act, Section 13(1), 49 U.S.C.

REBT) .ncccccccccccccccesceseccsecccevescece 15

National Environmental Policy Act, Section 102(2)

(C), 42 U.S.C. § 4832(2)(C) ... 6. eee eee e ee eees

Public Law 93-584, 88 Stat. 1917 ..........-0-eee ees 11, 23

Urgent Deficiencies Act of 1913, 38 Stat. 220 ... 6, 7, 11, 22

us U.S.C. $47, 47a (1940) 22... cece eee eee renee 7, 8, 10

98 U.S.C. § 380, 380a (1940) ... 2... cece eee eee eee 8

OB UBC. S1SGS .. nn cccccccccccccccccccscecses 4,7, 8,19

OB U.S.C. $ BIOL .... cc cnc cccccccccccccscccccccess

OB UG.C. $ BBB ... nc cc ncccccccccenccrccccncccess 12

OB U.G.C. $2825 .. ccc ccccccccccccccsccsccccccss 7, 8,12

GD Btat. GOD .... wc cccccccccccccccccvccvcsccccccess

MISCELLANEOUS :

Burstein, ‘‘Judicial Review of ICC Qsders,’’ 38 ICC

Pract. J. (1971) .. 2. ccccccccccccccccrcscccccsecs 8

C. Wright, Federal Courts (2d ed. 1970) ............ 8

H.R. Rep. No. 93-1569, 93rd Cong., 2d Sess. (1974) ... 12

Stern & Gressman, Supreme Court Practice (1969)... 5

| IN THE

| supreme Court of the United States

i OcToBER TERM, 1974

| No. 73-1966

ABERDEEN AND RocKFISH RAILROAD CoMPANY, et al.,

Appellants,

v.

STUDENTS CHALLENGING REGULATORY AGENCY

Procepvures (8.C.R.A.P.), et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

REPLY BRIEF OF THE ABERDEEN AND ROCKFISH

RAILROAD COMPANY, ET AL.

In their answering briefs,’ appellees suggest for the

first time that the present controversy is ‘‘academic’”’

(see p. 2, below); and, alternatively, they object to

this Court’s jurisdiction to review the merits of the

lower court’s decision. As we show below, both objec-

tions are without foundation and this Court presum-

ably rejected the objection to its jurisdiction months

3 ago. In any event, if this case were moot or this Court

' This reply is directed to the answering briefs filed by SCRAP

and EDF, et al. (‘“‘SCRAP-EDF’’); ISIS (‘‘ISIS’’); and NARI,

et al. (‘‘NARI’’).

2

did lack jurisdiction, the consequence would not be

affirmance of the judgment below or dismissal—as ap-

pellees assume—but rather an order by this Court

vacating the judgment below and remanding with in-

structions.

There is in fact a major jurisdictional issue at the

threshold of this case, but it concerns the jurisdiction

of the District Court rather than this tribunal. As the

railroads showed in their opening brief, the District

Court Jacked jurisdiction to review general revenue

orders, particularly where (as here) the challenge is

fundamentally directed at rates on particular com-

modities rather than the railroads’ general revenue

needs. Appellees have no persuasive answer to this

jurisdictional objection.

Finally, on the merits, appellees’ attacks on the

Commission’s lengthy and detailed environmental im-

pact statement do not justify the District Court’s deci-

sion. On the contrary, they merely confirm that, if

the sweeping and untempered judicial review of im-

pact statements utilized by the District Court is sus-

tained, virtually no impact statement could be found

sufficient. Here, the adequacy of the present impact

statement is confirmed by appellees’ own repeated re-

liance on subsequent ICC impact statements which

reached the same ultimate conclusion as the impact

statement sought to be condemned.

I. APPELLEES’ CLAIMS THAT THE CASE IS MOOT OR THAT

THE DISTRICT COURT ORDER IS NOT APPEALABLE ARE

WITHOUT MERIT AND DO NOT, IN ANY EVENT, Y. ARRANT

AFFIRMANCE OR DISMISSAL OF THE APPEAL.

1. Thronghout SCRAP-EDF’s brief, there is a re-

curring /eitmotiv that the effect of the District Court’s

decision is ‘‘academic’? (SCRAP-EDF Br. 4), ‘‘nil’’

“«

Me Oe Re Oe Ale etn Cela A. ty A Can atin oe Wo mags!

~~

es eee 8 eS ee

tee |

= orem abe rts -

—

3

(id. 5), ‘“‘inconsequential’’ (id. 27), or ‘‘moot’’ (id. 78)

in some nontechnical sense. Although the railroads

believe the Court may decide this case without reach-

ing the merits—by disposing of it on the jurisdictional

grounds which the railroads have pressed in their

opening brief—there is no merit to the appellees’ con-

tention that the District Court decision was or is now

in any sense hypothetical or academic.’ In fact, that

decision ordered the reopening of Ex Parte No, 281

for further proceedings and gave detailed instructions

to the Commission as to the preparation and contents

of a new impact statement upon remand. The District

Court ordered the Commission to ‘‘prepare another

2 SCRAP-EDF claim that ‘‘[w]hile this case may not be moot in

the technical sense, its connection with the real world is tenuous,

and likely to become more so.’’ SCRAP-EDF Br. 78, It is

unclear whether ISIS, which incorporates by reference several of

the comments made in the SCRAP-EDF brief (see ISIS Br. 3),

joins SCRAP-EDF in making this suggestion.

3 This is the third time in the course of this litigation that one

or more of the appellees have suggested that a railroad appeal to

this Court should be dismissed as moot. In the fall of 1972,

SCRAP urged that the railroads’ appeal be dismissed as moot

when the railroads appealed from the lower court’s original in-

junction directed against the interim emergency surcharge as ap-

plied to recyclable commodities. See SCRAP’s ‘“‘suggestion of

mootness’’ contained at pp. 12-15 in SCRAP ’s motion to dismiss

or affirm, December 1972. This Court, of course, rejected the

suggestion of mootness, noted probable jurisdiction and thereafter

reversed the lower court’s injunction. United States vy. SCRAP,

412 U.S. 669 (1973). Again, in the fall of 1973 in their motions

to dismiss the railroads’ appeal from the District Court’s prelim-

inary injunction issued in June 1973, the appellees argued that the

appeal was moot. See motions to dismiss submitted by SCRAP,

EDF, ISIS, NASMI, ef al., September and October 1973. This

Court again rejected appellees’ arguments and instead vacated the

District Court's injunction and remanded for further consideration

in light of Atchison T. & S. F. Ry. v. Wichita Board of Trade, 412

U.S. 800 (1973). 414 U.S. 1035 (1973).

4

draft statement to be circulated as specified by See-

tion 102(2)(C) [of NEPA]”’ (371 F. Supp. 1306

(Gov. J.S. 39a)); it stated that the ‘‘new statement

must include an analysis of the underlying rate strue-

ture’s impact on the movement of recyclable commodi-

ties’’ (id.), as well as ‘‘an analysis of the effects of

the rate structure on investment in manufacturing

facilities which can make intensive use of serap’’ (id.

(Gov. J.S. 40a)); it noted that ‘‘[a] comprehensive

study of the contribution to costs made by each eate-

gory of reeyclable commodities and the primary goods

with which they compete will... probably be neces-

sary’? (id. (Gov. J.S. 41a)); and it ordered the prep-

aration of a new final statement. Jd.

While the claim of mootness thus appears to be friv-

olous, it would not, even if accepted, warrant the relief

sought by appellees—affirmance or dismissal of the

appeal. When a case becomes moot on appeal from

a judgment of a lower court, then ‘‘the established

practice of the Court ... is to reverse or vacate”’

the judgment below. United Stutes v. Munsingwear,

Ine., 340 US. 36 (1950). As the Court explained in

that case, citing numerous supporting precedents:

‘The established practice of the Court in dealing

with a civil case from a court in the federal sys-

tem which has become moot while on its way here

pending our decision on the merits is to reverse

or vacate the judgment below and remand with a

direction to dismiss. That was said in Duke Power

Vo. Vv. Greenwood County, 299 U.S. 259, 267, to be

‘the duty of the appellate eourt.’. That proeedure

clears the path for future relitigation of the issues

between the parties and eliminates a judgment,

review of which was prevented through happen-

)

stance. When that procedure is followed, the

rights of all parties are preserved; none is preju-

diced by a decision which in the statutory scheme

was only preliminary.’’ 340 U.S. at 39-40 (footnote

omitted ).

This rule is based on elementary fairness since a liti-

gant cannot properly be subject to the effects of a

judgment and yet be eprived of its statutory right to

obtain appellate review.

In short, if this case were deemed moot by the Court,

then the only appropriate course would be to vacate the

District Court’s judgment with instructions to dismiss.

If the present controversy were academic or moot, the

10GC should elearly not remain subject to an out-

standing obligation to prepare a new impact state-

ment in this proceeding, as it would be if this Court

affirmed the lower court’s judgment.

2. Appellees renew the same objections to this

Court’s jurisdiction that they previously raised Im

their motions to dismiss. The railroads’ reply to ap-

pellees’ motions demonstrated the lack of merit in

these objections. R.R. Reply 1-15. The railroads be-

lieve that this Court has already rejected appellees’

arguments by noting probable jurisdiction in this ap-

peal. Thus, if the Court had harbored any doubts re-

garding its own jurisdiction, it would instead have

postponed jurisdiction to the merits.’ Nevertheless,

for the convenience of the Court, the railroads will

*See, e.g., Cramp v. Board of Public Instruction, 366 U.S. 934

(1961) ; United States v. Hancock Truck Lines, 324 U.S. 774, 776

(1945) (jurisdiction postponed on appeal from order of three-

judge court enjoining ICC order). See also Stern & Gressman,

Supreme Court Practice 237-38 (1969).

6

summarize their position on the issue while referring

the Court to the railroads’ earlier reply for a fuller

treatment of the question.

Appellees’ position that this Court lacks jurisdiction

from an appeal of an order of a three-judge court

vacating an ICC order is based on a purported distine-

tion between actions to ‘‘enjoin’’ ICC orders and all

other actions seeking directly to invalidate such orders.

Their contention, however, is inconsistent with the

legislative history of the statutes in question; it is

contradicted by decades of settled practice in this

Court; it is contrary to the views of commentators

and to the understanding of Congress; and the same

contention was fully briefed and flatly rejected by this

Court just a few years ago.

The legislative history of the pertinent statutory

provisions buttressed by years of consistent practice

in this Court shows that Congress intended from the

outset that orders of the ICC would be reviewable by

three-judge district courts and that orders of such

courts invalidating (or refusing to invalidate) the

ICC’s orders would be subject to direct appeal to this

Court. Furthermore, Congress intended these require-

ments to apply whenever direct review of ICC orders

was sought and without regard to whether the distriet

court’s own order was styled as an order ‘‘enjoining’’

the agency’s order, setting it aside, or invalidating it

in any other equivalent terms.

Since the adoption of the Urgent Deficiencies Act of

1913, orders of the Commission, except those for the

payment of money, have been reviewable by three-

judge district courts and orders of these courts have

7

been directly appealable to this Court. That Act pro-

vided, in pertinent part:

‘No interlocutory injunction suspending or re-

straining the enforcement, operation, or execution

of, or setting aside, in whole or in part, any orders

made or entered by the Interstate Commerce Com-

mission shall be issued or granted . . . unless the

application for the same shall be presented to a

eireuit or district judge, and shall be heard and

determined by three judges. ... An appeal may

be taken direct to the Supreme Court of the

United States from the order granting or deny-

ing, after notice and hearing, an interlocutory in-

junction, in such ease... and upon the final a

ing of any suit brought to suspend or set asi ,

in whole or in part, any order of said commission

the same requirement as to judges and the same

procedure as to expedition and appeal shall ap-

ply.’ 38 Stat. 220 (emphasis supplied).

Plainly, under this language a suit such as the present

one. which resulted in setting aside orders of the ICC,

would require a three-judge district court and the dis-

triet court’s order granting or denying relief would be

subject to direct review in this Court.

In 1948, as part of the revision of Title 28 and its

enactment into positive law (62 Stat. 869), the Urgent

Deficiencies Act provisions in pertinent part were

codified into Sections 2325 and 1253, The reviser’s

notes make it patent that there was no intent whatever

to alter the meaning, scope and purpose of the prior

provisions so far as concerns the three-judge court re-

juirement for review of ICC orders and the provers

for direct review in this Court.* Sinee the reviser's

8 The reviser’s note to Section 2325 discloses — - me

derived from ‘‘title 28, U.S.C., 1940 ed., § 47, Oct. 22, 1913, : Pre

38 Stat. 220),"’ which is the Urgent Deficiencies Act, an

ewe %

8

notes are authoritative in the construction of the 1948

revision, ° the construction here of Sections 2325 and

1253 is governed by the long-standing principle of

United States v. Ryder, 110 U.S. 729, 740 (1884), that

[i]t will not be inferred that the legislature, in re-

vising and consolidating the laws, intended to change

their policy, unless such intention be clearly ex-

pressed.”’

For years, the jurisdiction of this Court in eases

such as the present one has been accepted as settled by

this Court, by commentators, by Congress and by the

ICC itself. See, e.g., Chicago, M., St. P. & P. R.R. v.

United States, 366 U.S. 745, 746 (1961); Schaffer

Transp. Co. v. United States, 355 U.S. 83, 87 (1957) ;

C. Wright, Federal Courts 191 (2d ed. 1970); Bur-

stein, ‘Judicial Review of ICC Orders,’ 38 ICC Pract.

J. 174, 181 (1971). Appellees’ suggestion that this

represents no more than the casual assumption of sev-

eral commentators is plainly unpersuasive. Indeed,

it appears that this Court only recently determined,

in the course of detiding Electronic Industries Ass’n

the provision for direct appeal to the Supreme Court in three-

judge cases was located in Sections 1253 and 2101 (which fixes

the time for appeal). The reviser’s note to Section 1253 states

pertinently that ‘‘[t]his section consolidates the provisions of

sections 47, 47a, 380, and 380a of title 28, U.S.C., 1940 ed. relating

to direct appeals from decisions of three-judge courts involving

orders of the Interstate Commerce Commission or holding State or

Federal laws repugnant to the Constitution of the United States.’’

Nothing in the reviser’s notes shows any intent whatever to vary

the scope of cases involving ICC orders to which the three-judge

requirement or direct appeal provisions apply.

6 United States v. National City Lines, 337 U.S. 78, 81, 82 (1949) ;

Ntainback vy. Mo Hock Ke Loc Po, 336 U.S. 368, 376 n.12 (1949).

9

vy. United States, 401 U.S. 967 (1971), that there was

no jurisdictional difference between an action to en-

join and an action to set aside an ICC order.’

Appellees argue that no direct appeal to this Court

lies from the District Court’s order invalidating the

ICC’s orders, and requiring the Commissien to under-

take proceedings specified by the lower court’s detailed

mandate, because no “‘injunction’’ has been ,issued.

SCRAP-EDF Br. 20-28; ISIS Br. 5-9; NARI Br.

99-24. But the force of this argument depends on

establishing the prior proposition that, for purposes

of this Court’s jurisdiction, the form of the District

Court’s own order—i.e., whether it is styled as an or-

der enjoining the agency order, setting it aside or in-

validating it in any equivalent terms-—is determina-

tive. Appellees simply ignore the clear legislative his-

tory, the consistent practice of this Court, and the

Electronic Industries decision—all of which demon-

strate that no such distinction exists and that orders

invalidating ICC orders are reviewable here however

they may be couched."

7 While the Electronic Industries case was pending, this Court

directed the parties to submit supplemental memoranda on two

questions which in substance posed the issue whether a suit to

enjoin ICC orders is precluded by the availability of a suit to set

them aside and, if so, whether the latter suit would have to be

tried to a three-judge district court. Citing the legislative history

summarized above, all parties to the case submitted memoranda

agreeing that there was no pertinent distinction between actions

to enjoin and actions to set aside ICC orders and that such actions

were in both instances subject to the three-judge court require-

ment. This Court then unanimously affirmed the District Court s

judgment by an eight-to-zero vote, necessarily acknowledging its

jurisdiction over the appeal.

* Appellees’ argument is not unlike an argument which they ad-

vanced, and this Court rejected, when appellees sought to avoid

10

Appellees also argue that at the very least, this

Court’s jurisdiction on direct appeal is limited to situ-

ations in which the lower court’s order had ‘‘a neces-

sary, coercive impact on what some party could or

could not do, or was accompanied by the court’s grant-

ing, or refusing to grant, an order which would have

coerced directly some action or inaction of a party.’’

ISIS Br. 7 (emphasis in original) ; see also SCRAP-

EDF Br. 26-27. A short answer to appellees’ argu-

ment is that the District Court’s order has an unmis-

takable ‘‘coercive impact’’ on the ICC. See pp. 3-4,

above. Moreover, none of the cases cited by appellees

(ISIS Br. 6-7) to show that ‘‘coercion’’ is the touch-

stone of Supreme Court jurisdiction even remotely

suggested the rationale now proffered by appellees.

Finally, this Court has in fact entertained an appeal

from the decision of a three-judge district court under

28 U.S.C. § 1253 that itself did no more than determine

that certain ICC orders were unreviewable. Frozen

Foods Express v. United States, 351 U.S. 40 (1956).°

review here of the District Court’s preliminary injunction issued

in June 1973. Because the injanction was captioned ‘‘temporary

restraining order,’’ appellees argued that this Court had no juris-

diction to review it. E£.g., memorandum of SCRAP-EDF :n oppo-

sition to stay, pp. 2-3. The railroads responded, consistent with

the precedents, that the District Court’s order was clearly a pre-

liminary injunction (however it might be denominated) because

it was issued after a hearing and without the ten day limit appli-

cable to TRO’s. This Court not only issued the stay but there-

after accepted jurisdiction and vacated the District Court’s order.

414 U.S. 1035 (1973).

* Since the ICC orders which the three-judge district court held

unreviewable were themselves characterized by this Court as

‘‘declaratory,’’ 351 U.S. at 44, this Court thus assumed jurisdic-

tion of an appeal under 28 U.S.C. § 1253 which would determine

only whether a three-judge district court’s ‘‘non-coercive’’ refusal

to review a ‘‘non-coercive’’ ICC order was appropriate.

11

Appellees rely heavily upon decisions construing the

statutory provisions involving injunctions against

unconstitutional statutes." Both the legislative devel-

opment of these latter provisions and the policies

underlying them are different from those relating to

the review of ICC orders. Whereas the legislative

history of the provisions relating to 1CC orders shows

that they were designed to embrace actions to invali-

date ICC orders however the actions might be denom-

inated, the legislative history of the provisions relating

to unconstitutional statutes shows that they have always

been couched to embrace only actions seeking injunce-

tive relief. See, e.g., 36 Stat. 557; Kennedy v. Mendoza-

Martinez, supra, 372 U.S. at 154-55.

Lastly SCRAP-EDF and NARI suggest that a re-

strictive interpretation of the direct review statute

relating to ICC orders will lighter this Court’s case-

load. SCRAP-EDF Br. 24; NARI Br. 24. However,

even this policy argument has been vitiated by P.L. 93-

584, 88 Stat. 1917 (Jan. 2, 1975), which transfers initial

jurisdiction over suits to enjoin or suspend ICC orders

to the courts of appeals, but which specifically pro-

vides that suits already filed shall proceed under

“existing’’ law. The legislative history of the recent

amendments shows clearly that Congress understood

that under ‘‘existing’’ law decisions of three-judge

courts reviewing ICC orders were appealable directly

to this Court:

‘Since 1913, with the adoption of the Urgent

Deficiencies Act, orders of the Commission—except

“ E.g., Public Service Comm’n v. Brashear Freight Lines, Inc.,

306 U.S. 204 (1939); Mitchell v. Donovan, 398 U.S. 427 (1970);

Kennedy vy. Mendoza-Martinez, 372 U.S. 144 (1963); Gunn v.

University Committee to End the War, 399 U.S. 383 (1970);

Phillips ¥. United States, 312 U.S. 246 (1941); Rorick v. Board

of Comm'rs, 307 U.S. 208 (1939).

12

those calling solely for the payment of money—

have been reviewed in the United States district

courts by panels of three judges, at least one of

whom must be a judge of the court of appeals for

the circuit in which the district is located. 28

U.S.C. §§ 2321, 2325. Appeals from three-judge

courts lie directly to the Supreme Court as a matter

of right.”” H. R. Rep. No. 93-1569, 93rd Cong., 2d

Sess. 2 (1974).

See also R.R. Reply 4."

Il. THE DISTRICT COURT LACKED JURISDICTION TO REVIEW

THE COMMISSION’S GENERAL REVENUE ORDERS.

In their opening brief, the railroads demonstrated

that the long-standing rule establishing the unreview-

ability of general revenue orders precluded judicial

review of the Commission's orders in this case, and that

NEPA created no exception to this rule. R.R. Br. 21-

30. They further pointed out that despite the even divi-

sion of this Court over the reviewability of general

revenue orders when challenges to such orders were

directed at Commission findings of general revenue

need applicable to all rates,’* the Court soon thereafter

" Finally, while the clear propriety of review in this Court

makes the point academic, it should be noted that appellees would

not on any view of the matter be entitled to dismissal of the ap-

peals as they request. SCRAP-EDF Br. 80; ISIS Br. 46; NARI

Br. 54. Even if this Court decided that the District Court’s order

here was not directly appealable to this Court, the usual remedy

would be to ‘‘vacate the judgment below and remand the case”’

so that the District Court could enter a new order and afford

appellants the opportunity to take a timely appeal to the Court of

Appeals. Mitchell v. Donovan, supra, 398 U.S. at 431-32 & n.4.

* Alabama Power Co. v. United States, 316 F. Supp. 337 (D.

D.C. 1970) and Atlantic City Elee. Co. v. United States, 306 F.

Supp. 338 (S.D.N.Y. 1969), both af’d by an equally divided

Court, 400 U.S. 73 (1970).

2 ux

13

unanimously affirmed a decision sustaining the dismis-

sal of a suit challenging a general revenue order where

the attack was directed not to revenue-need findings

but to the application of the general increase to par-

ticular categories of rates. Electronic Industries Ass’n

v. United States, 401 U.S. 967 (1971).

The present case is essentially identical to the latter

situation. The appellees’ claims concern the Commis-

sion’s treatment of particular categories of rates appli-

cable to recyclable commodities,"* just as the claims in

Electronic Industries concerned the Commission’s

treatment of particular categories of rates applicable

to electrical products. Electronic Industries therefore

is dispositive of this case on the jurisdictional issue,

whether or not the Court might ctherwise decide to re-

examine the general rule followed in the district courts

for many years as it was presented in Atlantic City and

Alabama Power. In light of this controlling precedent,

it is nothing short of extraordinary that SCRAP-EDF

and ISIS fail even to cite the Electronic Industries case

in their briefs, and that NARI casually lists it in a

string of citations it claims are ‘‘inapposite.’”” NARI

Br. 26.

Appellees likewise fail to consider the underlying

reasons for the rule, which include an unwillingness of

courts to interfere at what is merely an intermediate

stage in the rate-making process, the availability of fur-

ther remedies focusing upon individual rates, and the

dangers of disruption and inconsistency that would

result from review of general revenue orders. Indeed,

138 They do not challenge the conclusions of the Commission with

respect to rates on nonrecyclables that went into effect in October

1972. The specific categories of rates of interest to appellees were

defined in the tariffs involved. See Ex Parte No. 281, 346 L.C.C.

88, 91 (1973).

14

this very case underscores the soundness of the general

rule, for there has been no determination as to the just-

ness or reasonableness of any particular rates on recyel-

ables, and review of the Commission's orders at this

juncture would cause the very interference with the

— process that the rule was designed to

avoid.

In the present case, the lower court's intervention,

if sustained, would require the Commission to under-

take elaborate and time-consuming tasks. As noted

above, for example, the lower court would insist upon

‘‘an analysis of the effects of the rate structure on in-

vestinent in manufacturing facilities which can make

intensive use of scrap.” 371 F. Supp. at 1306 (Gov.

J.S. 40a). It would also require ** [a] comprehensive

study of the contribution to costs made by each category

of recyclable conmodities and the primary goods with

which they compete.”’ Id. (Gov. J.S. fla). Studies of

the scope and detail apparently envisaged by the Dis-

trict Court are extraordinarily complex and have no

proper role in a general revenue proceeding, which is

in substance designed to provide the railroads with

prompt revenue relief, subject to subsequent challenges

to individual rates that may be initiated by interested

parties.

The impact of such judicial intervention at the gen-

eral revenue stage not only complicates and delavs the

administrative process, but it also poses a threat of

devastating delays for the railroads in obtaining essen-

tial revenue relief. Once this judicial intervention is

permitted, an endless suecession of studies will routinely

be demanded from the Commission in the course of a

general revenue proceeding. These demands will in

turn inevitably result in substantial delays in desper-

ads

a ee et

15

ately needed rate increases."* The railroads in this

country, faced with immense continuing cost increases

in fuel, labor, materials and other cost elements, simply

cannot carry the burden of significant additional delays

in obtaining rate relief through general revenue cases.

Given the existence of individual statutory proceedings

in which a just and reasonable rate can be determined,

taking account of all appropriate factors including

environmental ones, there is no justification for in-

stituting judicial review of general revenue orders.

In arguing for jurisdiction, appellees’ briefs mis-

state the railroads’ position and their arguments are,

in any event, unpersuasive. SCRAP-EDF and ISIS

erroneously contend that the railroads’ argument is

that a party seeking enforcement of the Commission's

duty to prepare an impact statement in a general

revenue proceeding ‘‘must first seek separate impact

statements, rate-by-rate, in administrative reparation

proceedings under 49 U.S.C. §15(1), before he can

assert any claim in court.’ SCRAP-EDF Br. 31.

See also ISIS Br. 14. The railroads are not making

and have never made such an argument. Rather the

railroads have asserted, as is indisputable, that the just-

ness and reasonableness of particular rates on recyel-

ables can only be resolved in individual proceedings,

and that it is in these proceedings that environmental

determinations respecting recyclables should be re-

viewed. To the extent that the Commission may rely

upon an earlier impact statement in support of its

conclusion in a Section 13 proceeding, such a statement

4 Such delay ineseapably results both from district court in-

junctions, however mistaken—such as the lower court's two earlier

injunctions in this case—and from the Commission's inability to

complete general revenue proceedings expeditiously because of

court-imposed requirements.

16

would be reviewable so far as it was pertinent. If

instead the Commission chose to prepare and rely upon

a new impact statement, the earlier statement would

be either supplementary or irrelevant depending on

the nature of the Commission’s undertaking.

ISIS’ brief (p. 16) echoes the decision below in

arguing that the earlier cases establishing the general

rule against reviewability of general revenue orders

should not apply in NEPA cases. But the broad

language of this Court’s.-SCRAP opinion emphasized

that nothing in NEPA or its legislative history re-

flected any congressional intent to alter the rule that

the courts may not ‘‘suspend’’ rates by injunetion

when the Commission has chosen not to do so or when

the statutory suspension period has expired. 412

U.S. 694-95. Similarly, nothing in NEPA or its leg-

islative history bespeaks any intention to overturn the

settled rule against judicial review either of suspension

orders directed to individual rates or of general rev-

enue orders directed to rates as a whole.

ISIS’ brief (pp. 11-12) also relies upon the fact that

the Government in Alabama Power and Atlantic City

took the position—contrary to settled district court

authority—that the revenue need findings in general

revenue orders should be directly reviewable. ™

However, the Government's brief in those cases (p. 17)

also stated that ‘‘the United States agrees with the

Commission” that the complaints “do not state a claim

for direct judicial review insofar as they challenge

‘In explaining its position the Government’s brief (p. 18)

argued in part that such revenne need findings ‘‘involve no past

or potential consideration of particular commodities’? and that

the *‘revenue decision ... would not be considered further in anv

potential future proceeding challenging particular rates.’’

17

the Commission’s preliminary treatment of rates on

particular commodities.’

Whatever else may be said, it is perfectly plain

here that appellees’ attacks do focus on particular com-

modity rates—namely, rates on recyclables—and do

not challenge revenue need findings applicable to all

rates. Any considerations bearing on the proper level

of recyelable rates, including environmental considera-

tions, can be urged in individual complaint proceed-

ings, and only in such preceedings can such rates be

definitely fixed. Accordingly, the railroads submit

that Electronic Industries governs this case and war-

‘ants reversal of the lower court’s decision on juris-

dictional grounds.

Ill. ON THE MERITS OF THE CASE, THE LOWER COURT ERRED

BY SUBSTITUTING ITS JUDGMENT FOR THAT OCF THE

RESPONSIBILE AGENCY.

In their opening brief, the railroads contended that

an examination of the Commission’s elaborate and

detailed impact statement would show that the Commis-

sion had given environmental considerations the **hard

look”? required by NEPA and that, even assuming

substantive review of the impact statement was appro-

priate, the lower court’s criticisms were ill-founded and

went far beyond the permissible scope of review. R.R.

Br. 34-48. The railroads’ position represented no more

than a particular application of well-settled principles

of administrative law predicated on the necessity of

16'The Commission's own subsequent decisions both in general

revenue cases and in other types of proceedings show that it 1s

fully prepared to reconsider environmental claims directed to re-

cyclables as new cases arise and new information becomes avail-

able. See pp. 24-27, below.

18

achieving a proper allocation of functions between

expert agency and reviewing court.

In response, appellees take two different tacks. On

the one hand, they attempt to rationalize the District

Court’s decision which ignored the basie principles

of judicial review by engaging virtually in de novo

consideration of matters entrusted to ageney judgment.

On the other hand, they seek to insulate the lower

court’s decision from the serutiny of this Court on the

remarkable ground that the lower court’s review of the

ICC’s impact statement cannot be overturned unless it

is found to be ‘clearly erroneous.’’ Fed. R. Civ. P.

92(a). See SCRAP-EDF Br, 33-64; ISIS Br. 16-44;

NARI Br. 26-51.

1. The underlying question which divides the rail-

roads and appellees—and which has eaused consider-

able confusion and uncertainty in the lower federal

courts—is the appropriate scope of judicial oversight

of an agency’s preparation of an é¢nvironmental impact

statement. The railroads have urged that the seope of

such review is and should be highly limited, and they

have brought to this Court’s attention well-reasoned

opinions in the lower federal courts which have

expressed this view. E.g., National Helium Corp. Vv.

Morton, 486 F.2d 995 (10th Cir. 1973), cert. denied,

416 U.S. 993 (1974); City of New York vy. United

States, 344 F. Supp. 929 (E.D.N-Y. 1972) (Friendly,

J.).

Appellees have cited other eases adopting vary-

ing formulations of the proper scope of review in lan-

guage appellees apparently find helpful to their cause.”

Curiously, the SCRAP-EDF brief (pp. 35, 46, 68) and ISIS

brief (pp. 19-20) rely heavily on National Helium Corp. v. Mor-

ton, supra, although that case approved the very standard which

19

SCRAP-EDF Br. 36-41; ISIS Br. 17-20; NARI Br.

46-47. Yet the SCRAP-EDF brief concedes (p. 45)

that ‘‘ the adequacy or inadequacy of a environmental

impact statement is not a legal question that can be

decided in vacuo.’’ Whether one characterizes the

legitimate role of a reviewing court in passing a

impact statement as assuring that the agency too .

‘hard look”’ at environmental factors,” that the agenc)

made a “good faith’ effort to comply with NEI A s

requirements,” or that the agency 8 efforts be consid-

ered in light of a ‘‘rule of reason,” “ none of these

rubries should permit a reviewing court in cases involy-

ing NEPA to reconsider, revise, and reject the agency .

expert evaluation of the evidence before it and 1“

expert judgments. If instead the reviewing court s

function is circumscribed by the traditional limitations

imposed on judicial review of agency action, then the

District Court in this case could not properly invalidate

the ICC’s impact statement in Lx Parte No. 281,

As the railroads showed in detail in their opening

brief, the Commission’s impact statement eer sae

prodigious effort and the result was a detailed am

‘carefully considered document. RR. Br. 9-14. In 150

pages of analysis, the Conunission considered onch of

the related topies specified by the statute. It examined

the nature of the railroad rate structure and treated in

the railroads have urged upon this Court: ‘‘an objective good

faith effort to comply with the statutory procedural require-

ments.’’ 486 F.2d at 1001. :

18 National Resources Defense Council v. Morton, 458 F.2d 827,

838 (D.C. Cir. 1972).

19 National Helium Corp. v. Morton, supra, 486 F.2d at 1001.

: Se

” Scicntists’ Institute for Public Information v. AEC, 481 F.2d

1079, 1092 (D.C. Cir. 1973).

20

depth the question whether freight rate increases would

have any effect on the movement of recyclables. Before

issuing its final statement, it received and reviewed

comments from other federal agencies and the public at

large.

Appellees’ criticisms of the ICC’s efforts, like the

lower court’s criticisms, represent nothing more than

expressions of their substantive disagreement with the

ultimate conclusion reached by the Commission. For

example, appellees recite at some length the critical

comments made of the Commission’s draft impact

statement by other federal agencies (SCRAP-EDF Br.

49-54; ISIS Br. 26-28; NARI Br. 47-51) and chide the

Commission for failing to heed them.” But these objec-

tions are simply particular substantive arguments that

the rate changes will adversely affect the environment

or demands for still further studies or analyses. Since

the Commission believed that the record amply sup-

ported its conclusion that there would be no environ-

mental impact, appellees’ complaints are merely

another way of saying that the Commission was re-

quired to alter the result it reached after a full econsid-

eration of the environmental facts and issues before it.

The appellees also complain about the Commission’s

alleged failure to consider the underlying rate structure

based ou appellees’ claims that recyclable rates were

discriminatorily high and that their cumulative impact

required consideration. SCRAP-EDF Br. D8-64 ;

ISIS Br. 32-34; NARI Br. 49-50. However, the Com-

mission was entitled to devote principal attention to

“"It is to be noted that the United States is before this Court

supporting the ICC's environmental impact statement. and, of

course, represents the combined interests of its agencies.

21

the particular federal ‘‘action’’ under consideration—

namely, the impact (if any) of the particular general

increases on recyclables involved in Ex Parte No. 281

—sinee this focus is what NEPA’s language contem-

plates. Moreover, the Commission in fact did con-

sider the overall rate structure both in evaluating the

cumulative impact of the rate changes here involved

and in discussing charges that the rate structure dis-

eriminated against recyclables. See R.R. Br. 47-48.

Appellees’ criticisms were to be expected in light of

the fact, squarely recognized by one court, that it is

‘doubtful that any agency, however objective, however

sincere, however well staffed and however well financed,

could come up with a perfect environmental impact

statement ....’’ But the validity of an impact state-

ment cannot be made to depend on an ageucy’s ability to

anticipate and refute every possible post hoc attack that

can be leveled at it. If there are to be any sensible

limits on the scope of review of impact statements pre-

pared by federal agencies pursuant to NEPA, it is

apparent that this Court should reject the lower court s

de novo consideration of the Commission’s extensive

and thorough impact statement.

This Court has itself recognized that the ‘‘federal

agencies ... have the primary responsibility for the

implementation of NEPA.”* United States v. SCRAP,

supra, 412 U.S. at 694. The lower court’s action repre-

sents a rejection of that principle; if allowed to stand,

it will not only upset the intended division of resposi-

bility between federal agencies and reviewing courts,

but it will also be an open invitation to any party dis-

22 Environmental Defense Fund v. Corps of Engineers, 470 F.2d

229, 297 (8th Cir. 1972), cert. denied, 412 U.S. 931 (1973).

99

-S

satistied with the conclusion reached by an ageney in

an impact statement to litigate his grievance in a fed-

eral court. There will be no dearth of litigants able to

specify one more study or ‘‘comprehensive analysis”’

that, in their view, constitute a prerequisite to an ade-

quate impact statement. And inevitably, district courts

will continuously expand the volume of evidence re-

quired in the preparation of impact statements. In

light of the Commission's well-reasoned and informed

analysis, there is no basis for sanctioning the ex-

pansive standard of judicial review urged by appellees

aud for substituting the lower court’s judgment for

that of the Commission.

2. Ironically, while SCRAP-EDF and ISIS strenu-

ously urge this Court to take an unjustifiably expan-

sive view of the scope of the lower court’s oversight of

the Commission’s impact statement, in the next breath

they seek to immunize the lower court’s decision from

this Court’s serutiny by making the novel and unwar-

ranted assertion that the lower court's decision can be

overturned only if this Court finds it to be ‘‘clearly

erroneous.’’?’ SCRAP-EDF Br. 45-48; ISIS Br. 20-23.

Appellees’ misconception of the scope of this Court’s

review of the lower court’s decision is consistent with

their misconception of the scope of the lower court’s

review of an agency’s impact statement: in each

instance the appellees proceed from the mistaken

premise that a three-judge court reviewing an ICC

order is a species of trial court hearing evidence and

making independent findings of fact, when in truth it is

essentially an appellate tribunal exercising a conven-

tional limited review of agency action.

It is well settled that suits under the Urgent Defici-

encies Act to set aside an order of the Commission are

23

proceedings for judicial review upon the record before

the Commission and are not trials de novo.” It is

equally clear that this Court in reviewing such decisions

of three-judge courts has accorded their determina-

tions no special deference.“ Rather, this Court has

focused directly on the action of the Commission, often

without even mentioning the reasoning or determina-

tions of the three-judge court.”

The proceedings in the District Court corresponded

to this well-established practice and understanding. No

trial was held, no witnesses were heard, and no detailed

findings of fact were made.” lather, the District

Court simply reviewed a record made before the agency

and transmitted to the District Court, and its judgment

depended not on evaluating the credibility of witnesses

23 See, e.g., United States v. Louisville & Nashville R.R., 235

U.S. 314, 320 (1914) ; Louisville & Nashville R.R. v. United States,

945 U.S. 463, 466 (1918); Lang Transp. Corp. v. United States,

75 F.Supp. 915, 922 (S.D. Cal. 1948) ; Edwards Motor Transit

Co. v. United States, 201 F. Supp. 918, 920-21 (M.D. Pa. 1962).

The fact that under the recent amendments to the judicial code

such suits are now required to be brought in the courts of appeals

underscores the appellate character of the courts’ review. See

P.L. 93-584, 88 Stat. 1917 (Jan. 2, 1975) reproduced in part in

SCRAP-EDF Br. 2a-3a.

24 See, e.g., Bowman Transportation, Inc. v. Arkansas-Best

Freighi System, Inc., 43 U.S.L.W. 4091 (U.S. December 23, 1974) ;

United States y. Dirie Highway Express, Inc., 389 U.S. 409 (1967) ;

United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515

(1946); ICC v. Inland Waterways Corp., 319 U.S. 671 (1948).

23 E.g., ICC v. Mechling, 330 U.S. 567 (1947) ; ICC v. J-T Trans-

portation Co., 368 U.S. 81 (1961).

26 The affidavits submitted by the railroads were directed against

preliminary injunetive relief and were essentially similar in char-

acter to the affidavits that are normally filed in courts of appeals

or in this Court in connection with an application for stay, or

opposition to stay, pending judicial review.

24

but on reviewing the same agency record and impact

statement that is before this Court.” It is manifestlly

unsound to suggest that this Court must accord te

District Court’s decision the deference accorded to a

trial court’s finding: any issue that the District Courtt

was entitled to consider is equally open to review ism

this Court.

3. Scattered throughout the brief of SCRAP-EDIFF

are references to the Commission’s environmental

impact statements prepared in connection with Ei

Parte Nos, 270 and 295. They cite these statements ti

support a variety of arguments such as their assertions

that the Commission reached the wrong conelusion im

Ex Parte No. 281 (SCRAP-EDF Br, 9-13), that iit

should have conducted its preparation of its impac’t

statement in Er Parte No. 281 differently (id. 57-64),

and that, since the Commission has “‘cured”’ the defectiS

of its earlier impact statement in its subsequent impac’t

statements, the case may somehow be moot. Id. at 19-

20, 64, 78. What EDF-SCRAP’s brief fails to mer-

tion are the critical findings in both the later impact

*7 While the briefs of SCRAP-EDF (p. 46) and ISIS (p. 2%,

n.18) point to Environmental Defense Fund y. Corps of Engi

neers, 492 F.2d 1125, 1137 (Sth Cir. 1974), as supporting theiit

view, that case involved ‘‘an extensive trial on the merits’’ (492

F.2d at 1132) on plaintiffs’ motion to enjoin construction of @

navigation project, where the trial court, after hearing substar®™-

tial testimony from live witnesses, made ‘‘ detailed individual finc-

ings.’’ Jd. Appellees’ reliance on such precedents as Uniteid

States v. United States Gypsum, 333 U.S. 364, 394 (1948) amd

(rraver Tank & Mfg. Co. vy. Linde Air Products Co., 336 U.S. 2711,

274-75 (1949) (see SCRAP-EDF Br. 46-48; ISIS Br. 21-22)).

hardly merits a response. These cases, many of them patent of

antitrust actions, involved lengthy trials before federal trial ecourtts

which made elaborate findings on the basis of evaluation of th’

credibility of live witnesses and extensive documentary evidence®-

25

statements that, just as the Commission had concluded

in Ex Parte No. 281, the environmental impact of in-

creases in rates on reeyelables will be ‘‘negligible’’ or

‘“‘insignificant.’” Ex Parte No. 270 (Sub. Nos. 5 and 6),

Final Environmental Impact Statement p. i (1974);

Ex Parte No. 295 (Sub. No. 1) Final Environmental

Impact Statement p. i (1974).

From the SCRAP-EDF presentation of the conclu-

sions the Commission reached in its later impact state-

ments, a casual reader would never know that the

Commission in fact emphatically reaffirmed rather

than undermined the conclusions it had reached in

Ex Parte No, 281. SCRAP-EDF’s brief refers only

to truneated portions of the Commission’s conclusions

in its Ex Parte No. 295 impact statement. For exam-

ple, the brief makes the following statement, with

‘‘supporting evidence,”’ in an attempt to suggest that

the described impact was substantial:

‘*In the environmental impact statement prepared

in Er Parte 295, ... the Commission estimated

that a 3 per cent rail freight increase on goods

heing shipped for recyeling—rather than having

no significant environmental impact, as claimed

in the Commission's previous boilerplate ‘‘find-

ings,’’ and in the present impact statement—would

mean the following with respect to non-ferrous

metals alone:

“TA]n estimated [additional] 3,097 tons of

metal will be amyaally required from virgin

ores. An increased yearly power consumption

of 21.8 million kilowatt hours can be expected,

with an inerease in pollutant emissions of about

15 tons per vear.”” SCRAP-EDF Br. 10-11

(citations omitted).

In context, one gets an entirely different impres-

sion of what the Commission said in Ev parte No. 295:

‘*The principal findings of the study are these:

The proposed 3 percent rate increase will do noth-

ing to stimulate recycling. On the contrary, any

perceivable effects will involve some diminution of

the rate at which secondary commodities are re-

claimed. However, the quantitative effects of a

3 percent rate increase will be very small, in all

eases only a fraction of 1 percent of the presently

recycled volume of any commodity. As a result

the environmental impacts in terms of increased

consumption of resources (including energy) and

of pollution, are expected to be insignificant.

Specifically, in regard to non-ferrous metals the

decrease in serap consumption is expected to be

about 2/100 of 1 percent of the present volume,

as a result of which an estimated additional 3,097

tons of metal will be annually required from virgin

ores. An increased yearly power consumption of

21.8 million kilowatt hours can be expected, with

an inerease in pollutant emissions of about 15 tons

per vear.’’ Ex Parte No. 295 (Sub. No. 1), Final

Environmental Impact Statement pp. xiii-xiv

(1974) (emphasis added).

This example is characteristic of SCRAP-EDP’s use

of the Commission’s environmental impact statement

in Er Parte No, 295."

** The excerpts on pages 10-13 of SCRAP-EDF’s brief imply,

for example, that raising rail rates on recyclables will cause a sub-

stantial decrease in scrap reclamation in general and in recycled

iron and steel serap in particular. In fact, the Commission con-

cluded that in beth the short and long term any adverse impact of

the increase in freight rates at issue would be insignificant (Er

Parte No. 295 (Sub. No. 1), Final Environmental Impact State-

ment 4-1, 4-4 (1974)), and that the decrease in recycled iron and

steel scrap amounts to less than two-tenths of one percent. Id.

at xiv.

27

It is unnecessary to belabor this point, which is sim-

ple and straightforward: SCRAP-EDF’s selective

reading of the Commission’s impact statements in Ez

Parte Nos. 270 and 295 does not accurately represent

their actual findings and conclusions. These extensive

studies in fact reiterate the basic conclusion which the

Commission reached in Ex Parte No. 281: that a lim-

ited increase in railroad freight rates on reeyclables—

as part of general rate increases applicable to all com-

modities including those allegedly in competition with

the recyelables—would not significantly affect the qual-

ity of the human environment.

CONCLUSION

For the reasons stated above and in the railroads’

opening brief, the decision of the lower court should

be reversed.

Respectfully submitted,

T. A. MILLER CHARLES A. Horsky

Southern Pacific MicHaeL Boupin

Transportation Co. WaLTEer HELLERSTEIN

One Market Street 888 Sixteenth St., N.W.

San Francisco, Calif. Washington, D. C. 20006

94105 Epwakp A. Kaler

Apert B. Russ, JR. 1600 Three Penn Center

Seaboard Coast Line Philadelphia, Pa. 19102

Railroad — James L. TaPLey

P.O. Bex 30008 P. 0. Box 1808

Richmond, Va. 23261 Washington, D.C. 20015

March 1975 Attorneys for Aberdeen

and Rockfish Railroad

Company, et al.