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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for Appellant
- **Published:** January 1, 1975
- **Citation:** 422 U.S. 289

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0118%3A11. Public record. Not legal advice.