# Jurisdictional Statement — U.S., et al. v. Students Challenging Regulatory Agency Procedures (Nos. 73-1971, 73-1966) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0119%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1973 ## Text Nm. 73-1971 Iu the Supreme Court of the United States —— OcTOBER TERM, 1973 ~ PILED ee JUL 2 1974 ATE NMIGHAEL RODAK, JR., CLERK UNITED STATES OF AMERICA AND IN’ COMMERCE COMMISSION, APPE Vv. STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES (S.C.R.A.P.), ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JURISDICTIONAL STATEMENT ROBERT H. Bork, Solicitor General, WALLACE H. JOHNSON, Assistant Attorney General, HARRIET S. SHAPIRO, Assistant to the Solicitor General, Department of Justice, Washington, D.C. 20530. FRITZ R. KAHN, General Counsel, BETTY JO CHRISTIAN, Associate General Counsel, CHARLES H. WHITE, JR., Attorney, Interstate Commerce Commission, Washington, D.C. 20423. / Page Opinions below 1 REET SPE Ee eZ eI 2 Questions presented 2 Statutes involved 3 TESS an Ae 6 The questions are substantial aad 11 Conclusion _...... vane Bae an Cad 22 I I sialascieieniecpumendannniomanidin ) la Appendix B en lb Appendix C _..... Savina Nene APO le I aa a eae ld I aa a le CITATIONS Cases: Alabama Power Co. v. United States, 316 F. Supp. 337 affirmed, 400 U.S. 73 13 Algoma Coke & Coal Co. v. United States, 11 F. Supp. 487 mr | 13 American Lines v. L&N R. Co., 392 U.S. era 15, 16 Arrow Transportation C. .. Suutnern R. Co., 372 U.S. F506 __. 14 Atchison, Tor xa & Santa Fe R. Co. v. Wichite coard of Trade, 412 U.S. 800 10, 13, 16 Caly srt Cliffs Coordinating Committee v. United States Atomic Energy Commis- sion, 449 F.2d 1109 19, 20 Il Cases—Continued Committee for Nuclear Safety v. Sea- borg, 463 F.2d 783 Ecology Action v. Uniied States Atomic Energy Commission, 492 F.2d 998 Greene County Planning Board v. Fed- eral Power Commission, 455 F.2d 412, certiorari denied, 409 U.S. 849 Harlem Valley Transportation Associa- tion and Natural Resources Defense Council, Inc. v. Stafford, C.A. 2, No. Page 18, 21 17 19, 20 73-2496, decided June 18, 1974 19, 20, 21 Increased Freight Rates and Charges, 1972, 341 I.C.C. 290 Jicarilla Apache Tribe v. Morton, 471 F. er EY cetscehcahneies Life of the Land v. . Brinegar, 485 F.2d 460 - =a Natural Resources ‘Defense Council, Inc. v. Morton, 458 F.2d 827 S.C.R.A.P. v. United States, 346 F. Supp. ae Union of Concerned Scientists v. Atomic Energy Commission, et al., C.A.D.C. No. 73-1099, decided June 10, 1974 Upper Pecos Ass’n v. Stans, 452 F.2d ae TE United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742 United States v. Florida East Coast Rail- way Company, 410 U.S. 224 United States v. S.C.R.A.P., 412 USS. 669 6, 7, 8, 14, United ‘States v. S.C.R.A.P., 414 U.S. 1035 . 8 18 20 17, 20 7 17 18, 20 19 19 17, 19 6, 10 Ill Statutes: Page Interstate Commerce Act, Section 15(7), 24 Stat. 384, as amended, 49 U.S.C. , —s 3-4, 6,7, 14,17 National Environmental Policy Act of 1969, Section 102(a)(C), 83 Stat. 853, 42 U.S.C. 4332(a)(C) 4-6, 7, 12, 19, 20 Regional Rail Reorganization Act of 1973, 87 Stat. 985 13 Iu the Supreme Court of the United States OCTOBER TERM, 1973 No. UNITED STATES OF AMERICA AND INTERSTATE COMMERCE COMMISSION, APPELLANTS Vv. STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES (S.C.R.A.P.), ET AL. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JURISDICTIONAL STATEMENT OPINIONS BELOW The opinion of the district court (App. A, infra) is reported at 371 F. Supp. 1291. The Interstate Commerce Commission’s opinion and order of October 4, 1972, Ex Parte 281, Increased Freight Rates and Charges, 1972 (App. D, infra),’ is reported at 341 ‘In reprinting this order in Appendix D, we have omitted the lengthy, detailed discussion of commodity groups not (1) 2 L.C.C. 290. Its order of May 2, 1973 (App. @, infra) is not reported. JURISDICTION The judgment of the three-judge district court was entered on February 19, 1974. Notices of Appeal to this Court were filed by the Interstate Commerce Com- mission and the United States on April 19, 1974 (App. C, infra). On June 13, 1974, Mr. Chief Jus- tice Burger extended the time for docketing the ap- peal to and including July 2, 1974. The jurisdiction of this Court rests on 28 U.S.C. 1253 and 2101(b). United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742. QUESTIONS PRESENTED 1. Whether the court below, in prohibiting the In- terstate Commerce Commission from approving a gen- eral railroad rate increase without first conducting a thorough analysis of the underlying rate structure in an environmental impact statement, improperly inter- fered with the Commission’s discretion to determine the appropriate type of proceeding in which to ad- dress complex questions relating to rate-making. 2. Whether NEPA requires that a new hearing be conducted to consider an environmental impact state- involved in this proceeding, and Appendices containing financial data and future evidentiary requirements. We are lodging ten copies of the entire order with the Clerk for dis- tribution to the Court. 3 ment, where the sole agency decision makers conduct- ed a hearing and considered environmental issues be- fore reaching their decision. STATUTES INVOLVED Section 15(7) of the Interstate Commerce Act, 24 Stat. 384, as amended, 49 U.S.C. 15(7), provides: Whenever there shall be filed with the Com- mission any schedule stating a new individual or joint rate, fare, or charge, or any new individual or joint classification, or any new individual or joint regulation or practice affecting any rate, fare, or charge, the Commission shall have, and it is hereby given, authority, either upon com- plaint or upon its own initiative without com- plaint, at once, and if it so orders without answer or other formal pleading by the interested car- rier or carriers, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, fare, charge, classification, regula- tion, or practice; and pending such hearing and the decision thereon the Commission, upon filing with such schedule and delivering to the carrier or carriers affected thereby a statement in writ- ing of its reasons for such suspension, may from time to time suspend the operation of such sched- ule and defer the use of such rate, fare, charge, classification, regulation, or practice, but not for a longer period than seven months beyond the time when it would otherwise go into effect; and after full hearing, whether completed before or after the rate, fare, charge, classification, regu- lation, or practice goes into effect, the Commis- 4 sion may make such order with reference there- to as would be proper in a proceeding initiated after it had become effective. If the proceeding has not been concluded and an order made within the period of suspension, the proposed change of rate, fare, charge, classification, regulation, or practice shall go into effect at the end of such period; but in case of a proposed increased rate or charge for or in respect to the transpertation of property, the Commission may by order re- quire the interested carrier or carriers to keep accurate account in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts are paid, and upon completion of the hearing and decision may by further order require the interested carrier or carriers to refund, with interest, to the persons in whose behalf such amounts were paid, such portion of such increased rates or charges as by its decision shall be found not justified. At any hearing involving a change in a rate, fare, charge, or classification, or in a rule, regula- tion, or practice, after September 18, 1940, the burden of proof shall be upon the carrier to show that the proposed changed rate, fare, charge, classification, rule, regulation, or prac- tice is just and reasonable, and the Commission shall give to the hearing and decision of such questions preference over all other questions pending before it and decide the same as speedily as possible. Section 102 of the National Environmental Policy Act of 1969, 83 Stat. 853, 42 U.S.C. 4332, provides in relevant part: 5 The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regu- lations, and public laws of the United States shall be interpreted and administered in accord- ance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall— * * * * * (C) include in every recommendation or re- port on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on— (i) the environmental impact of the pro- posed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short- term uses of man’s environment and the main- tenance and enhancement of long-term produc- tivity, and (v) any irreversible and irretrievable com- mitments of resources which would be in- volved in the proposed action should it be implemented. Prior to making any detailed statement, the re- sponsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local 6 agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on En- vironmental Quality and to the public as pro- vided by section 552 of Title 5, and shall ac- company the proposal through the existing agen- cy review processes; * * * * STATEMENT This appeal is a further chapter in a long and com- plex litigation involving the impact of the National Environmental Policy Act of 1969, 42 U.S.C. 4332 (NEPA), on a general revenue proceeding of the Interstate Commerce Commission conducted pursuant to Section 15(7) of the Interstate Commerce Act, as amended, 49 U.S.C. 15(7).’ Faced with sharply escalating costs and an increas- ingly precarious financial condition, the Nation’s rail- roads in December 1971 collectively petitioned the Commission for authorization to file a temporary 2.5 percent surcharge on nearly ail freight rates. This emergency interim measure was intended to redress the railroads’ financial condition pending the rail- roads’ filing of proposed permanent selective rate increases. The Commission, finding the railroads to have a critical need for additional revenues, concluded that the surcharge should be permitted to take immediate effect. The railroads then filed proposed selective 2See United States v. S.C.R.A.P., 412 U.S. 669; United States v. S.C.R.A.P., 414 U.S. 1035. 7 permanent increases averaging 4.1 percent. On April 24, 1972, the Commission issued an order pursuant to Section 15(7) of the Interstate Commerce Act, in- stituting an investigation into the lawfulness of the permanent rate increases and suspending the per- manent increases for seven months, the maximum period permitted by 49 U.S.C. 15(7).° Thereafter, a group of law students—Students Challenging Regulatory Agency Procedures (S.C.R.- A.P.)—and other environmental groups filed suit al- leging that a detailed statement on the environmental impact of the proposed action was required by Sec- tion 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. 4332(2)(C). Plaintiffs sought an in- junction both to prevent the railroads from collecting the 2.5 percent surcharge, and to compel the Com- mission to suspend its order authorizing the surcharge to become effective without suspension. The district court granted the relief sought. S.C.R.A.P. v. United States, 346 F. Supp. 189, 201 (D. D.C.). On appeal, however, this Court reversed, holding that under Section 15(7) of the Interstate Commerce Act the Commission has exclusive power to suspend rates pending final decision on their lawful- ness, and that “NEPA was not intended to repeal by implication any other statute.” United States v. S.C.R.A.P., 412 U.S. 669, 694. *Since the suspended permanent tariffs were intended to supplant the temporary surcharge, the Commission authorized the railroads to continue to collect the 2.5 percent surcharge unti. November 30, 1972—the end of the suspension period on the selective increases. 8 Before this Court rendered its opinion, the Com- mission, on September 27, 1972, issued a final report and order authorizing some of the selective permanent increases sought by the railroads. Ex parte 281, Increased Freight Rates and Charges, 1972, 341 I.C.C. 290 (App. D, infra). In its opinion, the Commission considered the en- vironmental impact of its authorization of the rate increases, both in general (App. D, infra, pp. 20d- 35d), and as applied to specific commodities moving in the recycling process (App. D, infra, at pp. 49d- 85d).° After this “extensive consideration” (United States v. S.C.R.A.P., supra, 412 U.S. at 683, n. 11), the Commission made the threshold assessment that “inereases at the levels authorized herein will have no significant adverse impact on the quality of our human environment” (App. D, infra, at p. 34d). Therefore, it found that a formal environmental im- pact statement was unnecessary. Nevertheless, the Commission delayed the effectiveness of the increases authorized for commodities moving in the recycling process for 25 days, to permit the filing of comments concerning the environmental impact of the increased rates on these commodities (App. D, infra, p. 35d). * The authorized rates for several of the recyclable ma- terials were less than those sought by the railroads. (See App. D, infra, pp. 85d-86d). > This consideration was based on iadependent study by the Commission, as well as the draft impact statement previously filed by the railroads requesting the increases and comments of — and environmental groups (App. D, infra, pp. 21d- 23d). 9 Several such comments were filed, and, on November 7, 1972, the Commission reopened the proceeding to reconsider the environmental effects of the rates on commodities being transported for recycling, and sus- pended the tariffs on such commodities for another seven months. See United States v. S.C.R.A.P., supra, 412 U.S. at 683, n. 11. Although not conceding that an impact statement was necessary, the Commission issued its draft impact statement on March 5, 1973, for public comment. After consideration of comments, the Commission adopted the final impact statement, again concluding that the selective tariff increases on commodities moving in the recycling process would not adversely affect the environment (346 I.C.C. 88).° It therefore found it unnecessary to reconsider the general reve- nue order of October 4, 1972, and terminated the proceeding (App. E, infra, p. le). S.C.R.A.P., the other environmental groups, and certain scrap dealer associations thereupon filed this suit, seeking to vacate the Commission’s orders per- mitting increased rates on recyclable materials on ¢ We are lodging ten copies of this statement with the Cierk for distribution to the Court. It contains a thorough discus- sion of general environmental considerations (95-136, 235- 236); a detailed discussion of the possible diversion from rail to truck caused by increased rates (id. at 136-143); and an extensive commodity-by-commodity analysis of the effect that the proposed increases will have on the shipping and use of recyclable materials (id. at 148-216). The Commission also discussed the various possible alternatives to rate increases on recyclable commodities. (id. at 218-235). 9 the ground that the Commission had failed to comply with NEPA.’ The three-judge district court con- cluded, with Judge lannery dissenting, that “not only the Commission’s preparation and utilization of its impact statement but also the contents of that state- ment fail to comport with the obligations imposed on the Commission by Section 102(2)(C) fof NEPA]” (App. A, infra, p. 39a). It vacated the Commis- sion’s orders of October 4, 1972 and May 2, 1973, insofar as they related to commodities being shipped for recycling, and remanded for reconsideration of the rate increases applicable to such commodities.* The district court’s decision was purportedly based, not on substantive review of the Commission’s orders, but on the court’s conclusion that the Commission had failed to comply with the procedural requirements of NEPA. There were, in the court’s view, two major procedural defects. The court held the statement’s ‘They also sought an injunction restraining the railroads from collecting the increased rates on such materials. The district court originally granted this injunction; it was stayed by the Chief Justice, and then vacated by this Court, which remanded the case for reconsideration in light of Atchison, Topeka, & Santa Fe R. Co. v. Wichita Board of Trade, 412 U.S. 800. United States v. S.C.R.A.P., 414 U.S. 1035. *The court refused to enjoin the collection of the higher rates by the railroads, noting that “The only consequence of our vacating the Commission’s orders pending reconsideration of the rate increases ‘is that the railroads may not rely, in some subsequent proceeding, on a Commission finding that the pro- posed rates were just and reasonable. * * *’ Atchison, Topeka & Santa Fe R. Co. v. Wichita Board of Trade, supra” (App. A, infra, p. 44a, n. 50). 11 fundamental defect to be that it limited its “analysis to the marginal impact of the most recent rate in- crease with no discussion of whether the underlying rate structure itself significantly affects the environ- ment” (App. A, infra, at p. 34a). In addition, it held that the Commission was required to hold a hearing after the development of the impact statement, to provide a basis for a “thorough reconsideration by the Commission “of the proposed recyclable rate in- crease in light of that hearing and the impact state- ment” (id. at p. 28a). _ The court remanded the case to the Commission, directing it to prepare a new draft impact statement containing a thorough-going rate structure study on the relationship of recyclables to virgin materials (App. A, infra, pp. 39a-40a). The court also directed the Commission to conduct an analysis of the effects of the rate structure on investment in manufacturing facilities which make intensive use of scrap (id. at p. 40a). Furthermore, the district court found a “strong presumption” that “full consideration of the revised impact statement through ‘existing agency review processes’ must entail oral hearings before the Commission” (id. at pp. 42a-43a). THE QUESTIONS ARE SUBSTANTIAL This case presents important questions concerning the effect of NEPA on agencies with rate-making responsibilities and, more generally, on the discretion of agencies to determine the manner in which to make decisions. In determining that the Commis- 12 sion’s environmental consideration was inadequate because it did not analyze in detail the underlying rate structure, but focused instead on the rate in- creases which were involved in the revenue proceeding, the court intruded into the area traditionally re- served to agency discretion. NEPA was not intended to limit a rate-making agency’s authority to deter- mine the appropriate type of proceeding in which to make its decisions. Nor was the provision in Sec- tion 102(2)(C) that the impact statement “shall ac- company the proposal through the existing agency review processes” designed to require an agency to conduct a new hearing in the circumstances of this case. 1. The Commission’s Consideration of Environ- mental Factors Was Adequate. The Commission orders involved here grew out of a general revenue proceeding, initiated by the rail- roads’ proposal to increase all their rates and charges by about 4 percent. In general revenue proceedings, the Commission determines whether the carriers’ total revenues are sufficient to provide the Nation with adequate transportation. If the carriers demon- strate that the general revenue increase is needed and the Commission determines that it is consistent with the public interest, the Commission will au- thorize a permissive revenue increase. In such pro- ceedings, the Commission does not determine the rea- sonableness of individual rates, nor does it consider the relationship of rates for different classes of com- modities. Instead, the Commission makes broad find- 13 ings balancing the railroads’ need for revenue and the public interest. On the basis of these findings, it may allow the carriers to file tariffs embodying percent- age increases.” The Commission’s decision, however, does not auto- matically increase any individual rate. If the rail- road does decide to amend its tariffs, the Commis- sion’s determination means, instead, that a shipper challenging any individual rate increase which is within the percentage increase authorized in the general revenue proceeding must establish that the rate is unreasonable. The effect of the general reve- nue order is thus simply to shift the burden of proof concerning the reasonableness of individual rates that comply with the order from the carrier to the shipper. General revenue orders are in the nature of emer- gency relief to enable the railroads to keep up, to some extent, with inflationary pressures, and thus to protect the public interest in adequate rail service.” Therefore, the Commission may suspend the effec- * Commission orders in general revenue proceedings have traditionally not been subject to judicial review. See, ¢.9., Algoma Coal & Coke Co. v. United States, 11 F. Supp. 487 (E.D. Va.); Alabama Power Co. V. United States, 316 F. Supp. 337 (D. D.C.), affirmed per curiam by an equally di- vided court sub nom. Atlantic City Electric Co. V. United States, 400 U.S. 73. Cf. Atchison, Topeka, & Santa Fe R. Co. V. Wichita Board of Trade, supra, 412 U.S. at 814, n. 10. 1° The precarious financial state of the nation’s railroads, particularly in the northeast, is documented in the Commis- sion’s October order (App. D, infra, pp. 3d-20d). The Regional Rail Reorganization Act of 1973, 87 Stat. 985, reflects similar concerns. 14 tiveness of the increases proposed by the railroads for only seven months. If the Commission study is not completed within that time, the rates go into effect without Commission authorization. 49 U.S.C. 15(7); see Arrow Transportation Co. V. Southern R. Co., 372 U.S. 658." NEPA has not altered this statutory scheme. United States v. S.C.R.A.P., 412 U.S. 669. The decision of the court below would, as a prac- tical matter, deny the railroads the benefit of timely general revenue orders. If such an order cannot is- sue without an environmental impact statement which analyzes not only the effects of the general revenue increases under consideration, but also the basic rate structure upon which they are predicated, no such order could be issued by the Commission within the statutory seven months. Indeed, the Com- mission is well aware of the need for a thorough study of the basic railroad freight rate structure, and is in fact now conducting such a study in a different proceeding, Ex Parte No. 270, Investigation of the Rail Freight Structure. That study includes, as a separate proceeding (Sub. No. 5), a study of the rate structure on iron and steel scrap, the prin- cipal commodity at issue here. But such studies can- not be made within the statutory time frame re- "If the Commission has not acted within the suspension period, the Commission may require the carriers to keep detai’ed accounts and to repay any increases the Commission ultimately disallows. 49 U.S.C. 15(7); United States V. S.C.R.A.P., supra, 412 U.S. at 697. 15 quired for general revenne orders. Environmental Impact Statement, p. 227." In sum, the district court’s insistence that the Commission must, in effect, undertake comprehensive rate structure analyses and adjustments before it can authorize general revenue relief both miscon- ceives the nature of general revenue proceedings and casts grave doubt on the Commission’s ability effec- tively to respond to the carriers’ revenue needs and public interest considerations within the statutorily limited suspension period. As this court noted in reviewing another district court’s attempt to require the Commission to resolve complex rate-related ques- tions in an inappropriate proceeding (American Lines v. L. & N. R. Co., 392 U.S. 571, 592): Given the fact that * * * the Commission was to exercise its informed judgment in ultimately determining what method of costing was prefer- able, it is clear that the District Court also erred in refusing to permit the Commission to exercise that judgment in a proceeding it reasonably be- lieved would provide the most adequate record 2 The district court’s opinion clearly contemplates that extensive studies of this nature will be conducted in order to prepare the impact statement. It suggests that the Com- mission may wish to “place a moratorium on rate increases on recyclable commodities until Ex Parte No. 270 is completed” (App. A, infra, pp. 37a-38a) —an alternative expressly rejected by the Commission (Impact Statement, p. 230). Moreover, the rather substantial discussion of the rate structure now contained in the impact statement was considered insufficient. See Impact Statement at pp. 102-133, 146-160, 222-228, and passim. 16 for the resolution of the problems involved. We can see no justification for denying the Commis- sion reasonable latitude to decide where it will resolve these complex issues, in addition to how it will resolve them. The action by the District Court here not only deprives the Commission of the opportunity to make the initial resolution of the issues but also prevents it from doing so in a more suitable context. This Court has just recently held that the Fed- eral Power Commission had the authority to fix rates on an area-wide basis rather than on an in- dividual producer basis and that, in order to make such a procedure feasible, it had statutory authority to impose a moratorium upon rate in- creases by producers for a period of 214 years after the setting of the area rate. Permian Basin Area Rate Cases, 390 U.S. 747 (1968). The basis for this holding was the principle that the “legislative discretion implied in the rate making power necessarily extends to the entire legislative process, embracing the method used in reaching the legislative determination as well as that determination itself.” Jd., at 776. That principle is equally applicable to rate regulation carried out by the ICC, especially where, as here, the determination made on an interim basis is in general accord with both the legislative his- tory of the statute involved and the results in prior cases decided by the agency. Cf. Wichita Board of Trade, supra, 412 U.S. at 819- 821. The fact that this case, unlike American Lines, involves the application of NEPA does not justify 17 the district court’s action. The purpose of NEPA is to ensure that the administrative decision maker gives full consideration to the environmental aspects of its decision. So long as the decision maker has taken the “hard look” at environmental consequences mandated by Congress, courts should not interject themselves into “the area of discretion of the [agen- cy] as to the choice of the action to be taken.” Natu- ral Resources Defense Council, Inc. v. Morton, 458 F. 2d 827, 838 (C.A.D.C.). As this Court held in United States v. S.C.R.A.P., supra, 412 U.S. at 697, NEPA does not give reviewing courts license to up- set the “careful accommodation of the various inter- ests involved” in Section 15(7) of the Interstate Commerce Act.” The district court specifically disavowed any in- tent to review the merits of the Commission’s envi- ronmental decision, and based its action instead on a holding that the Commission had failed to comply with the procedural requirements of NEPA (App. 13 In a somewhat similar situation, two courts of appeals have recently concluded that the Atomic Energy Commission did not violate NEPA when it issued reactor licenses after considering environmental impact statements which were based on interim safety criteria. The courts held that the agency could develop definitive criteria in a separate rule- making proceeding without suspending all licensing in the interim. Ecology Action v. United States Atomic Energy Com- mission, 492 F.2d 998, 1002 (C.A. 2); Union of Concerned Scientists v. Atomic Energy Commission, C.A.D.C. No. 73- 1099, decided June 10, 1974, slip op. 24-30. 18 A, infra, p. 22a). It thus did not explicitly reach the question of the proper scope of judicial review of the merits of agency determinations under NEPA. Nevertheless, in concluding that the detailed impact statement here involved was inadequate, the court substituted its judgment for that of the agency con- cerning the matters discussed in the impact state- ment, and found that the arguments of the environ- mental interests, principally concerning the underly- ing rate structure, were not adequately rebutted for purposes of the issuance of a general revenue order (App. A, infra, pp. 30a-34a). Regardless of the par- ticular formulations of the proper scope of judicial review of the merits of agency NEPA decisions, it is clear that such substitution of judicial for agency judgment is improper. See, e.g., Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (C.A. 9); Committee for Nuclear Responsibility, Inc. v. Sea- borg, 463 F.2d 783 (C.A.D.C.); Upper Pecos Ass’n v. Stans, 452 F.2d 783 (1233 (C.A. 10). And it is especially unwarranted where, as here, it would force the agency to use a particular type of proceeding for purposes for which it is not suited under the agency’s regulatory scheme. 2. NEPA Does Not Require the Commission to Conduct a New Hearing to Consider the Impact Statement. The district court concluded that, since Section 102 (2)(C) of NEPA provides that the agency environ- ™ The court thus implicitly rejected the Commission’s ex- press determination that an impact statement was not necessary. 19 mental impact statement “shall accompany the pro- posal through the existing agency review processes,” it was improper for the Commission to consider the formal impact statement without conducting a new hearing, and that there is “at least * * * a strong presumption * * * that full consideration of the re- vised impact statement through ‘existing agency re- view processes’ must entail oral hearings before the Commission” (App. A, infra, at pp. 42a-43a). But oral hearings before the Commission are not required in rulemaking proceedings of the kind involved here. See United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 756-758; United States v. Florida East Coast Railway Co., 410 U.S. 224, 236-238. And NEPA does not change that aspect of the Commis- sion’s procedures. United States v. S.C.R.A.P., supra, 412 U.S. at 694. There is, therefore, no legal basis for the court’s “presumption.” The court relied for its conclusion upon Calvert Cliffs’ Coordinating Committee v. United States Atomic Energy Commission, 449 F.2d 1109 (C.A. D.C.), and Greene County Planning Board v. Federal Power Commission, 455 F.2d 412 (C.A. 2), certio- rari denied, 409 U.S. 849. Those cases dealt with fundamentally different types of agency proceedings, in which initial agency decisions were subject to re- view within the agency. They hold only that in those circumstances Section 102(2)(C) requires the impact statement to be considered at each level of agency review.” In contrast, here the initial agency decision 18 In Harlem Valley Transportation Association and Natural Resources Defense Council, Inc. V. Stafford, C.A. 2, No. 73- 2496, decided June 18, 1974, the court held that Greene County, 20 on general revenue matters is by the Commission it- self; no intermediate agency decision makers are in- volved, nor are there here any agency review proce- dures. Instead, the Commission simply reconsidered its order of October 4, 1972, in light of the environ- mental impact statement, and concluded that the further study of the environmental effects of the rate increases showed no reason to revise the conclusions it there reached. Cf. Life of the Land v. Brinegar, 485 F.2d 460 (C.A. 9). In the absence of any “existing agency review processes”, therefore, there was no violation of Sec- tion 102(2)(C), which does not in terms require a hearing to be conducted. Nor was there any incon- sistency here with the policy of NEPA, since the agency decision makers have taken the necessary “hard look” at environmental factors in reaching their decision,’ both by extensive consideration of supra, applies to Commission rail abandonment proceedings conducted pursuant to 49 U.S.C. 1(18). The court apparently assumed that such proceedings, like those in Greene County and Calvert Cliffs’, must be heard initially by a hearing ex- aminer and reviewed by the Commission. The government has not yet decided whether to seek further review of Harlem Valley. 1% In Life of the Land, the draft impact statement was cir- culated after the hearing required by the agency’s statute had been held. The final statement was then approved by respon- sible agency officials. The court concluded that the publication and dissemination of the statement complied with Section 102(2)(C). It emphasized that there had been substantial consideration of environmental issues at all stages of the pro- ceedings. 1” Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 838 (C.A. D.C.); cf. Upper Pecos Ass’n, Inc. V. 21 environmental matters at the hearing before the Oc- tober 4 decision, and in reviewing the environmental impact statement and the comments thereon before reaching their May 2 decision.’ There was also ade- quate opportunity for public participation, both in the October hearing and in the request for comments on the draft impact statement. Cf. Hanly v. Kleindienst, 471 F.2d 825, 836 (C.A. 2), certiorari denied, 412 U.S. 908. Stans, 452 F.2d 1233, 1236 (C.A. 10); Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783 (C.A. D.C.). ** The Commission’s action here was thus not inconsistent with what the court in Harlem Valley, supra, slip op. at 4287- 4288, identified as “the policies behind the decision in Greene County I, the dangers that an agency will rely on self-serving statements by an applicant and wil] place the burden of analyzing environmental issues upon intervenors * * *.” The environmental questions were addressed independently by the Commission both before and after the October 4 order. See n. 5 swpra; Impact Statement, pp. 92, 102. 22 CONCLUSION Probable jurisdiction should be noted. Respectfully submitted. ROBERT H. BorK, Solicitor General. WALLACE H. JOHNSON, Assistant Attorney General. HARRIET S. SHAPIRO, Assistant to the Solicitor General. FRITZ R. KAHN, General Counsel, BETTY JO CHRISTIAN, Associate General Counsel, CHARLES H. WHITE, JR., Attorney, _ Interstate Commerce Commission. JULY 1974. THE ABERDEEN AND ROCKFISH RAILROAD COMPANY la APPENDIX A UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA Civ. A. No. 971-72 STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES (S.C.R.A.P.), PLAINTIFF, and CoUNCIL ON ENVIRONMENTAL QUALITY, INVOLUNTARY PLAINTIFF, and ENVIRONMENTAL DEFENSE FUND, ET AL., PLAINTIFF-INTERVENORS, and NATIONAL ASSOCIATION OF SECONDARY MATERIALS INDUSTRIES, INC., ET AL., PLAINTIFF-INTERVENORS, and INSTITUTE OF SCRAP IRON AND STEEL, INC. and JULIAN C. COHEN SALVAGE CORPORATION, PLAINTIFF-INTERVENORS Vv. UNITED STATES OF AMERICA and INTERSTATE COMMERCE COMMISSION, DEFENDANTS, and ET AL., DEFENDANT-INTERVENORS Feb. 19, 1974 Proceeding in which environmental groups and others sought a declaration that ICC had failed to 2a comply with National Environmental Policy Act in authorizing railroad rate increases on shipment of re- cyclables and that orders approving increases were void, an order enjoining the ICC to reconsider gen- eral rate increases in accordance with strict demands of the Act, and an injunction forbidding railroads from collecting rate increases on recyclables until ICC complied with the act. On plaintiffs’ and de- fendants’ cross motions for summary judgment, a three-judge United States District Court for the Dis- trict of Columbia, J. Skelly Wright, Circuit Judge, determined that the ICC’s efforts to meet the com- mands of the Act were substantially deficient, that order authorizing rate increases should be vacated, and that proceeding should be remanded to the Com- mission for fulfillment of the Act’s obligations, but, because of uncertainty concerning meaning of a Su- preme Court decision, refrained from issuing an in- junction restraining railroad’s collecting the increased rates pending the ICC’s reconsideration. Order accordingly. Flannery, District Judge, dissented and filed opin- ion. 1. Commerce § 152 Three-judge federal district court had jurisdiction to review Interstate Commerce Commission’s compli- ance, in authorizing railroad rate increases on ship- ment of recyclable commodities, with commands of the National Environmental Policy Act. 28 U.S.C.A. §§ 1336, 2321-2325; Interstate Commerce Act, §§ 13 3a (1), 15(1, 7), 16(1), 49 U.S.C.A. §§ 13(1), 15(1, 7), 16(1); National Environmental Policy Act of 1969, §§ 101, 102, 102(2)(C), 42 U.S.C.A. §§ 4331, 4332, 4332(2)(C). 2. Health and Environment § 25.10 Purpose of procedural requirements of National Environmental Policy Act, which prescribes not only what considerations must be addressed in an envir- onmental impact statement but also how the state- ment is to be developed and utilized, is to insure that federal agencies integrate consideration of potential environmental impacts of their contemplated actions with the policy considerations traditionally attending such actions. National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4332(2)(C). 3. Health and Environment § 25.10 In light of facts, inter alia, that ICC’s order ex- plaining why national transportation policy warrant- ed general rate increase on recyclables was made without benefit of an impact statement, that ICC prepared environmental statement only after an ava- lanche of criticism from environmental groups, that ICC did not decide to start over again to reconsider fully question of such rate increases and instead merely opened case for limited purpose of further evaluating environmental effects of increased rates on movement of recyclables, and that ICC did not even take its after-the-fact environmental considerations through existing agency review processes, ICC’s prep- 4a aration and utilization of its impact statement failed to comport with obligations imposed on it by Na- tional Environmental Policy Act. National Environ- mental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4832(2)(C). 4. Health and Environment § 25.10 A reviewing court must demand more than pro forma compliance with section of National Environ- mental Policy Act prescribing what considerations must be addressed in an environmental impact state- ment and how statement is to be developed and util- ized; it must be assured that the agency engaged in a full and good faith individualized consideration and balancing of environmental factors. National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4832(2)(C). 5. Health and Environment § 25.10 ICC statement on environmental impact of railroad rate increases on shipment of recyclables, which failed to include, inter alia, an analysis of underlying rate structure’s impact on movement of recyclables, failed to comport with obligations imposed on the ICC by the Environmental National Policy Act. Na- tional Environmental Policy Act of 1969, § 102(2) (C), 42 U.S.C.A. § 4832(2)(C). 6. Health and Environment § 25.10 Phrase “existing agency review processes,” in sec- tion of National Environmental Policy Act which re- 5a quires that environmental impact statement be trans- mitted through existing agency review processes, en- compasses not only procedures required by explicit agency regulations but also those procedures which an agency customarily employs in consideration of a proposal of the type being analyzed for its environ- mental impact. National Environmental Policy Act of 1969, § 102(2)(C), 42 U.S.C.A. § 4332(2)(C). See publications Words and Phrases for other judicial constructions and definitions. John F. Banzhaf, III, and Peter H. Meyers, Wash- ington, D.C., for plaintiff SCRAP. John F. Dienelt and Scott H. Lang, Washington, D.C., for plaintiff-intervenors Environmental Defense Fund and others. Edward L. Merrigan, Washington, D.C., for plain- tiff-intervenors National Association of Secondary Materials Industries, Inc. and others. Thomas H. Boggs, Jr., George Blow, and E. Bruce Butler, Washington, D.C., for plaintiff-intervenors Institute of Scrap Iron and Steel, Inc., and others. Asst. Atty. Gen. Shiro Kashiwa, Harold H. Titus, Jr., U. S. Atty., and William M. Cohen, Atty., Dept. of Justice, for defendant United States of America. Fritz R. Kahn, Gen. Counsel, Betty Jo Christian, Associate Gen. Counsel, and Theodore C. Knappen, Hanford O’Hara, Charles H. White, Jr., and James F. Tao, Attys., Interstate Commerce Commission, for defendant Interstate Commerce Commission. 6a T. A. Miller, San Francisco, Cal., Albert B. Russ, Jr., Richmond, Va., Edward A. Kaier, Philadelphia, Pa., and Charles A. Horsky, Michael Boudin, Michael J. Henke, Walter Hellerstein and James L. Tapley, Washington, D.C., for defendant-intervenors Aber- deen and Rockfish Railroad Company and others. Before WRIGHT, Circuit Judge, and RICHEY and FLANNERY, District Judges. J. SKELLY WRIGHT, Circuit Judge: Plaintiff and plaintiff-intervenors challenge an or- der of the Interstate Commerce Commission (ICC) authorizing railroad rate increases on shipment of recyclable commodities on the ground that the Com- mission has failed to comply with the prescriptions of the National Environmental Policy Act ( NEPA), 42 U.S.C. § 4321 et seg. (1970). Both plaintiffs and defendants have moved for summary judgment. We find that the Commission’s efforts to meet the com- mands of NEPA were substantially deficient. We thus vacate the Commission’s order authorizing the rate increases on recyclable commodities and remand the proceeding to the Commission for fulfillment of its NEPA obligations. However, because of our un- certainty concerning the meaning of the Supreme Court’s decision last term in Atchison, Topeka & Santa Fe R. Co. v. Wichita Board of Trade, 412 U.S. 800, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973), we re- frain from issuing an injunction restraining the rail- roads from collecting the increased rates pending the Commission’s reconsideration. 7a I This case has had ~ long and complicated history. Inasmuch as it has produced two previous opinions ' by this court* and one by the Supreme Court,’ how- ever, we shall attempt to set forth only those facts relevant to the motions now before us. Having se- cured Commission approval of a two and a half per cent temporary emergency surcharge in February 1971 on nearly all freight rates, the nation’s rail- roads on March 17, 1972 filed tariffs with the Com- mission for permanent selective increases averaging four per cent on most commodities. Under the Inter- state Commerce Act tariff changes filed by carriers go into effect automatically unless the Commission deems that an investigation of the lawfulness of these tariffs is advisable and that the rates should be sus- pended pending such an investigation. 49 U.S.C. §$ 15(7) (1970). On April 24, 1972 the Commission announced its intention to investigate the permanent increases and suspended these increases for the full seven-month period permitted by Section 15(7). Students Challenging Regulatory Agency Proce- dures (SCRAP) then commenced this action, contend- ing that NEPA compelled the Commission to prepare and consider an environmental impact statement be- *353 F.Supp. 317 (1973); 346 F.Supp 189 (1972). * This is a three-judge court convened pursuant to 28 U.S.C. §§ 2325 & 2284 (1970). * United States v. SCRAP, 412 U.S. 669, 98 S.Ct. 2405, 37 L.Ed.2d 254 (1973). 8a fore permitting any rate increases—including the temporary two and a half per cent surcharge. SCRAP, which was later to be joined by other envi- ronmental groups and scrap dealer associations,‘ ar- gued that the rate increases discouraged the envi- ronmentally desirable use of recyclable commodities not only by raising the costs of shipping recyclables, but also by aggravating “the preexisting disparity in shipping costs between these materials and the pri- mary goods with which they compete.” * In response to this theory, we held that even the temporary sur- charge was a major action “significantly affecting the quality of the human environment,” 42 U.S.C. § 4332 (2)(C), and that the Commission therefore had vio- lated NEPA by not preparing and considering a NEPA impact statement before issuing its order per- mitting the temporary surcharge. We held that any challenge to the permanent increase was not ripe for review inasmuch as the Commission had not then yet issued an order approving this increase. We did, however, retain jurisdiction to ensure that the Com- *SCRAP, an unincorporated association of law students, was formed to enhance environmental quality. The Environ- mental Defense Fund, the National Parks & Conservation Association, and the Izaak Walton League of America entered the action in its initial stages as plaintiff-intervenors. The National Association of Secondary Materials Industries and the Institute of Scrap Iron & Steel have more recently inter- vened. All of these parties will be referred to hereinafter as plaintiffs. °346 F.Supp. at 191. 9a mission would comply with NEPA.* We further is- sued a preliminary injunction restraining the tempo- rary surcharge insofar as it applied to recyclable commodities. The Supreme Court reversed the in- junction on June 18, 1973. United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). Relying on Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963), the Court held that Section 15(7) vested exclusive jurisdiction in the Commission to suspend rates pending its final decision on their lawfulness.’ Meanwhile the Commission’s investigation of the proposed permanent increases culminated in a hear- ing consisting of submission of briefs and oral argu- ment by concerned parties. Though the Commission had told the Chief Justice, in connection with its application for a stay of our order against the tem- porary surcharge, as well as this court, that it was developing an impact statement, no statement was prepared for consideration at this hearing or even for consideration by the Commission before issuing its decision on the permanent increases. That deci- sion, which was issued October 4, 1972, approved most of the selective increases. Ex Parte No. 281, Increased Freight Rates and Charges, 1972, 341 ICC 288 (1972). The decision included some discussion of environmental considerations and limited the rate increases on nonferrous scrap to three per cent, but *Id. at 198-201. 412 U.S. at 690-699, 93 S.Ct. 2405. 10a it generally concluded that the new tariffs would not significantly affect the quality of the human environ- ment and that there was thus no necessity for a for- mal impact statement. The Commission’s failure to prepare a formal statement provoked vehement pro- testations from the President’s Council on Environ- mental Quality (CEQ), from the Environmental Pro- tection Agency (EPA), and from plaintiffs." Plain- tiff SCRAP filed with this court on November 7, 1972 a motion to enjoin the approved increases. On the same day as this filing, the Commission suddenly shifted its position by suspending, until June 1973, rate increases on all goods being shipped for pur- poses of recycling and by reopening its investigation in Ex Parte No. 281.° The Commission stated that the proceeding was reopened for “the limited purpose of further evaluating, in accordance with [NEPA], *«“* * * The Environmental Protection Agency (EPA) stated its regret that the Commission chose not to submit a formal impact statement, arguing that ‘the historical data presented by the Commission does not support the conclusion that * * * there will be no adverse environ- mental impact.’ CEQ, in its letter to the Commission, felt that the conclusion that the October 4 order would have no significant environmental impact ‘seems un- responsive to the language of our NEPA guide- Maes © © 9” 353 F.Supp. at 321. ® Following the Commission’s Oct. 4 order and opinion, the railroads refiled their increases, including the increases on recyclables, in accordance with the order and the exceptions they made to the Commission’s general approval. It was these refiled tariffs as they related to recyclables which the Commis- sion suspended. lla the environmental effects of increased railroad freight rates and charges on the movements of commodi- ties being transported for the purpose of recycling ** *.”* In light of the Commission’s action, we denied SCRAP’s request for a preliminary injunc- tion. We found that no relief was necessary for the suspended increases on recyclables and that there was not sufficient likelihood that the plaintiffs would be successful in showing that an impact statement was required before increasing rates on nonrecycla- bles. We reserved decision on the merits. The Commission proceeded to prepare its statement on the environmental impact of the recyclable rate increases. The Commission’s draft statement was is- sued March 5, 1973. It was circulated to several con- cerned Executive agencies and departments and to all of the parties in this action. Not only the plain- tiffs but also the Executive agencies and depart- ments, including EPA, CEQ, General Services Admin- istration, Department of the Interior, and Depart- ment of Commerce, responded with extensive com- ments critical of this draft statement and its con- clusions. These comments, although acknowledged by the Commission in its final statement, did not move the Commission to change in any substantial way its conclusions or even its analysis. The Commission de- nied the request of plaintiffs to schedule a new set of hearings in the reopened proceedings. The Com- mission served its final environmental impact state- ” 353 F.Supp. at 321. 12a ment on May 7, 1973. The statement’s analysis was limited to the marginal impact of the most recent rate increases; it stated that a general rate increase proceeding did not provide an appropriate occasion to examine whethe’ the underlying rate structure discriminated against recyclable commodities with significant adverse environmental consequences.” Though it contained no rigorous economic analysis of the responsiveness of the demand for recyclables to changes in transportation costs, the statement’s con- clusion echoed the Commission’s original position in its October 1972 order that the increases would not have a significant adverse effect on the environment. The statement further pronounced that even if some adverse environmental impact could be anticipated * the increases would be justified by the need to ensure a viable and efficient railroad system. The Commis- sion did not use this staff-prepared statement and the critical comments on the draft statement to develop a new opinion to supplant or even supplement its Oc- tober opinion. Instead the Commission merely ap- pended a one-sentence order to the statement’s back page which adopted the entire statement as part of its prior opinion on the rate increases and discon- tinued Ex Parte No. 281. “ICC, Ex Parte No. 281, Increased Freight Rates and Charges, 1972 (Environmental Matters) 22 (May 7, 1973) (hereinafter “Environmental Impact Statement’). as The statement actually did concede at one point that the rate increase would probably cause a decline in utilization of glass scrap. Id. at 155. 13a On May 30, 1973 SCRAP and plaintiff-intervenor Environmental Defense Fund (EDF) filed a motion in this court for a preliminary injunction against the rate increases on recyclable commodities which the railroads intended to place in effect when the suspension period ended on June 10. On June 7 this court, finding a sufficient likelihood that plaintiffs would be successful in their present challenge to the rate increases, issued a temporary injunction restrain- ing the Commission and the railroads from collect- ing the increases “until further order of this court.” This injunction was stayed by Chief Justice Burger. On November 19, 1973 the Supreme Court vacated the injunction and remanded the case to this court for further consideration in light of Atchison, Topeka & Santa Fe R. Co. v. Wichita Board of Trade, supra.” Plaintiffs now ask this court for: a declaration that the ICC has failed to comply with NEPA and that the orders approving the increases are thus void; an order enjoining the Commission to recon- sider the general rate increases in accordance with the strict demands of NEPA; and an injunction for- bidding the railroads from collecting the rate in- creases on recyclables until the Commission does so comply with NEPA. Plaintiffs and defendants have filed cross motions for summary judgment, and on these motions we now consider whether it is appropri- 18 United States v. SCRAP, —— U.S. ——, 94 S.Ct. 533, 38 L.Ed.2d 326 (1973). l4a ate for this court to grant plaintiffs’ requests for relief, II [1] We must first address the contention of the railroads, who have intervened as defendants, that we lack jurisdiction to review the Commission’s com- pliance with the commands of NEPA. The railroads’ position is based on cases dating back almost 40 years which refused to review challenges of shippers to general revenue orders like those of October 4, 1972 and May 2, 1973." These decisions were not com- pelled by any statutory limitation on the courts’ pow- er; three-judge District Courts have jurisdiction “to enforce, suspend, enjoin, annul or set aside in whole or in part any order of the Interstate Commerce Commission * * *.” 28 U.S.C. § 2321 (1970); 28 U.S.C. § 1336 (1970). See 28 U.S.C. §§ 2322-2325 (1970). The decisions were instead predicated upon the judicially developed doctrines of ripeness and ex- haustion of administrative remedies. The courts stressed that the Commission’s approbation of a gen- eral rate increase under Section 15(7) was merely “4 See, e.g., Algoma Coal & Coke Co. v. United States, E.D.Va., 11 F.Supp. 487 (1935); Koppers Co. v. United States, W.D.Pa., 132 F.Supp. 159 (1955); Atlantic City Electric Co. v. United States, S.D.N.Y., 306 F.Supp. 338 (1969), and Alabama Power Co. v. United States, D.D.C., 316 F.Supp. 337 (1969), both affirmed by equally divided Court, 400 U.S. 73, 91 S.Ct. 259, 27 L.Ed.2d 212 (1970); Electronic Industries Assn v. United States, D.D.C., 310 F.Supp. 1286 (1970), affirmed per curiam, 401 U.S. 967, 91 S.Ct. 1188, 28 L.Ed.2d 318 (1971). l5a an acceptance of the railroads’ need for more reve- nue, that the shippers could challenge the reason- ableness of particular rates affecting them under Sec- tions 13(1), 15(1) and 16(1) of the Interstate Com- merce Act, 49 U.S.C. §§$13(1), 15(1), 16(1) (1970), and that only in a decision pursuant to such a challenge did the Commission render a judgment on the reasonableness of particular rates as applied to particular shippers. The courts thus reasoned that to review carriers’ challenges to a Section 15(7) order would be to interfere at an intermediate stage in the rate-making process before the carriers had exhausted their remedies before the Commission. However, as we indicated in our first opinion in this case,’’ we do not feel restrained by these cases from reviewing plaintiffs’ challenges to the Commis- sion’s orders. First, the precedential force of the cases is now in substantial doubt. Two of the most recent, Alabama Power Co. v. United States, D.D.C., 316 F.Supp. 337 (1969), and Atlantic City Electric Co. v. United States, S.D.N.Y., 306 F. Supp. 338 (1969), were affirmed without opinion by only an equally divided Court, 400 U.S. 73, 91 S.Ct. 259, 27 L.Ed.2d 212 (1970). Only last term the Court indi- cated that the jurisdictional question presented by these cases, while a serious one, was not settled." 1° 346 F.Supp. at 198. %In Atchison, Topeka & Santa Fe R. Co. v. Wichita Board of Trade, 412 U.S. 800, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973); the Court reviewed a Commission order that particular rates were just and reasonable. The plurality opinion stated that l6a In Alabama Power and Atlantic City the shippers’ challenges were directed to the Commission’s deci- sion that the general increases were warranted by the railroads’ revenue needs rather than to the rea- sonabieness of any particular rates. We adhere to the view expressed in the dissent in Alabama Power that challenges such as these can best be considered in direct review of the Commission’s Section 15(7) de- cision rather than “in countless rate-making proceed- ings involving individual commodities.” The instant case does not present challenges to the reasonable- ness of particular rates on particular railroads be- tween particular points; it presents challenges to the Commission’s determination that the railroads’ gen- eral revenue needs justify the costs to shippers and to the environment of a general rate increase on re- cyclables."* The Commission has made what it be- lieves to be its final decision on this general balanc- ing; it surely does not intend to reconsider this deci- sion after a Section 13 challenge to a particular rate. if the grain charges “were just like a general rate incrase, serious questions would arise about the jurisdiction of the District Court to review the Commission’s order.” /d. at 814 n. 10, 93 S.Ct. at 2378. * Alabama Power Co. v. United States, supra note 14, 316 F.Supp. at 339. '* We thus find misplaced the railroads’ reliance on Elec- tronic Industries Assn v. United States, supra note 14, which was affirmed unanimously by the Supreme Court without opinion. In that case the shippers attacked as unreasonable and arbitrary only that portion of a Commission § 15(7) order permitting increased rates on two particular items. 310 F.Supp. at 1287. 17a We do not, however, rest on an application of the analysis advanced in the dissent in Alabama Power. For as stated in our first SCRAP opinion * the cases cited by the railroads are all distinguishable from a case challenging the Commission’s compliance with NEPA in approving a general rate increase. We first note that however adequate a Section 13 proceed- ing might be to a shipper who questions the railroads’ need for a general rate increase, it is at least ques- tionable that environmental groups such as SCRAP have standing to initiate Section 13 proceedings dur- ing which they could attempt to contest the Commis- sion’s compliance with NEPA. Sections 13(1), 15(1) and 16(1) permit any person or association to com- plain of carrier action in contravention of the Inter- state Commerce Act and empower the Commission to investigate such complaints and remedy any violation of the Act, including granting reparations for unrea- sonable or prejudicial charges on particular items shipped. It is suggested that an environmental group, while it could not obtain reparations, should be able to complain that a particular charge on a particular item is unreasonable because of its environmental ef- fects. Thus if SCRAP could initiate an investigation on this theory, it could argue further that before re- jecting the complaint the Commission would have to prepare and consider an environmental impact state- ment. But we know of no Commission order or ju- dicial opinion accepting this theory and it is thus too speculative and too unrealistic to support a denial ” 346 F.Supp. at 198. 18a of jurisdiction. It is true that two scrap dealers associations have intervened in this action to help champion the environmental cause and that these as- sociations or their members may bring Section 13 challenges to particular rates which they could argue the Commission could not reject without compliance with NEPA. But we cannot rest a holding on the fortuity that here shippers as well as environmental groups challenge the Commission’s compliance with NEPA. Moreover, to refuse to consider the challenges of environmental groups to agency compliance with NEPA because economically interested parties might make similar challenges in later proceedings would significantly dilute the Supreme Court’s holding, on review of our first opinion in this case, that SCRAP has full standing, equal to and not derived from the standing of economically interested parties, to seek review of Commission action which allegedly harms SCRAP’s members in their use of the environment.” Even if environmental groups could initiate pro- ceedings pursuant to Section 13(1), an appeal from a Commission order on the reasonablenes of a par- ticular rate would not be an appropriate time for a court to review the Commission’s challenged com- pliance with NEPA. Plaintiffs have persuasively ar- gued that NEPA compels the Commission, before ap- proving a general rate increase, to consider whether the rate increases on recyclables collectively have a significant environmental impact and, if so, whether 2° United States v. SCRAP, supra note 3, 412 U.S. at 683- 690, 93 S.Ct. 2405. 19a this impact is justified by the railroads’ need for in- creased revenues. These are far different questions from whether a particular rate, in light of environ- mental! considerations, is unreasonable or discrimina- tory. Even if a court in reviewing a Commission order on the reasonableness of a particular rate were able on the record before it to review the Commis- sion’s compliance with NEPA, the court’s decision would affect only the particular rate challenged. Thus burdensome relitigation of each particular rate would be required +o challenge all the rates which collec- tively impact the environment. Finally, we note that delay is of greater import here than in previous cases where review of general rate orders was re- fused. While the Act provides for reparations to ship- pers who successfully challenge particular rates after they have become effective, the environmental degra- dation which continues while challenges to particu- lar rates are being considered may not be reparable at all. Our reliance on NEPA in finding jurisdiction is not inconsistent with the Supreme Court’s admonition in its SCRAP opinion that “NEPA was not intended to repeal by implication any other statute.”“ The Court did not suggest that NEPA was to be ignored by the courts in considering threshold jurisdictional issues.” 2 Id. at 694, 98 S.Ct. at 2419. “2 The Court’s implicit approval of the assertion of jurisdic- tion in Committee for Nuclear Responsibility, Inc. v. Seaborg, 149 U.S.App.D.C. 380, 463 F.2d 783 (1971), suggests much 20a The Court in SCRAP held only that NEPA did not revive judicial power that had been previously ex- plicitly eliminated by Congress. 412 U.S, at 692-695, 93 S.Ct. 2405. This time we do not wield NEPA in the face of any statutory limitations on our jurisdic- tion; there is nothing in the Interstate Commerce Act which precludes our jurisdiction to review Section 15(7) orders, whatever the limits it imposes on our injunctive power over carriers. We, like the previous courts which, in a non-NEPA context, declined to re- view general rate orders, are applying broad juris- dictional provisions, 28 U.S.C. §§ 1336, 2321, giving us power to review “any order” of the ICC. These provisions demand supplementation by other stat- utes and by judicially developed doctrines which limit court review of agency action. As stated above, previous courts found two of these doctrines to pre- clude court review of general rate orders. We find that the existence of NEPA requires us to reconsider the application of these doctrines and in NEPA cases to accept more of the broad jurisdictional authority granted us, Ill We thus turn to an examination of the Commis- sion’s fulfillment of the NEPA mandate. We do not feel it necessary to rehearse at the outset the full the reverse. 412 U.S. at 695-696, 93 S.Ct. 2405. The Seaborg court reviewed whether a decision to conduct a nuclear test was made in compliance with NEPA though, as we noted in our first SCRAP opinion, 346 F.Supp. at 197, absent NEPA no court would have authority to review such a decision. 2la structure and the particularized requirements of NEPA. Previous courts have done so adequately.” We do, however, think it important to emphasize be- fore commencing our analysis that the courts have required strict compliance with the procedural com- mands of NEPA. Section 102(2)(C) of the Act, 42 U.S.C. § 4332(2)(C), prescribes in some detail not only what considerations must be addressed in an environmental impact statement, but also how the statement is to be developed and utilized. The Act states that “all agencies of the Federal Government”’ are to comply with these prescriptions “to the fullest extent possible.” 42 U.S.C. § 4332. Far from pro- viding “an escape hatch for footdragging agencies,” this language “sets a high standard for the agencies, a standard which must be rigorously enforced by the reviewing courts.” Calvert Cliffs’ Coordinating Com- mittee v. USAEC, 146 U.S.App.D.C. 33, 38, 449 F.2d 1109, 1114 (1971). Because of the extent of plain- tiffs’ attack on the impact statement, we further note that the courts’ substantive review of agency action pursuant to NEPA is much more limited. Once a court is satisfied that the agency has “fully and in good faith” met all of NEPA’s procedural require- ments, it should not reverse an agency decision on the merits unless it can determine that the decision was “arbitrary or clearly gave insufficient weight to 23 See, e.g., Environmental Defense Fund, Inc. v. Corps of Engineers, United States Army, 8 Cir., 470 F.2d 289 (1972); Calvert Cliffs’ Coordinating Committee v. USAEC, 146 U.S. App.D.C. 33, 449 F.2d 1109 (1971). 22a environmental values.” Jd., 146 U.S.App.D.C. at 39, 449 F.2d at 1115.” Any substantive review would be predicated on Section 101 of the Act, 42 U.S.C. § 4331, which propounds certain substantive envir- onmental goals which it is the “continuing responsi- bility of the Federal Government to use all practica- ble means” to achieve. One of these goals is to “en- hance the quality of renewable resources and ap- proach the maximum attainable recycling of deplet- able resources.” However, because we view the Com- mission’s efforts to comply with NEPA’s procedural commands to be sorely deficient, we do not reach the question whether the Commission clearly gave insuf- ficient weight to this environmental value. (2, 3] The purpose of all the requirements im- posed by Section 102(2)(C) is to ensure that fed- eral agencies integrate consideration of the potential environmental impacts of their contemplated actions with the policy considerations traditionally attending such actions. It is for this reason that Section 102 (2)(C) specifically commands that an environment- al impact statement and the comments of other con- cerned agencies on this statement “shall accompany the proposal through the existing agency review proc- esses.’” The Commission’s mode of preparation and utilization of the challenged impact statement here violated both Section 102(2)(C)’s fundamental pur- ** Accord, Conservation Council of North Carolina v. Froehlke, 4 Cir., 473 F.2d 664, 665 (1973); Environmental Defense Fund, Inc. v. Froehlke, 8 Cir., 473 F.2d 346, 353 (1972). 23a pose and this specific command. The Commision’s October 4 order explaining why the national trans- portation policy warranted the general rate increase was made without the benefit of an impact state- ment. It was only after its October order was greet- ed with an avalanche of criticism from environment- al groups, EPA, and CEQ that the Commission de- cided to prepare an environmental statement on the impact of the rate increases for recyclable commodi- ties. The Commission did not, however, decide to start over again to reconsider fully the question of rate increases on recyclables. It instead merely re- opened Ex Parte No. 281 “for the limited purpose of further evaluating * * * the environmental ef- fects of increased railroad freight rates and charges” on the movement of recyclable commodities. ICC or- der of November 7, 1972. The Commission thus indi- cated that it had already made its decision and all that remained was to determine if the environmental effects of that decision could be justified. The Com- mission’s May 2, 1973 order discontinuing Ex Parte No. 281 is further evidence that the Commission neither intended to give nor actually gave full re- consideration to the question of the recyclable rate increase. That one-sentence order merely adopts the entire staff-prepared impact statement. It makes no attempt to integrate the considerations of national transportation policy justifying the rate increase with the environmental considerations analyzed in the im- pact statement. Nor does it confront or even acknow]l- edge the critical comments of other concerned agen- 24a cies and environmental groups appended to the state- ment. This utilization of an impact statement simp- ly does not comport with Section 102(2)(C). Only if the statement is prepared before an agency decision is made can it serve its purpose of informing the de- cision-making process at every stage. “Compliance to the ‘fullest’ possible extent would seem to demand that environmental issues be considered at every im- portant stage in the decision making process * * *.” Calvert Cliffs’ Coordinating Committee v. USAEC, supra, 146 U.S.App.D.C. at 42, 449 F.2d at 1118 (emphasis in original).* If the agency fails to pre- 7° See also Environmental Defense Fund, Inc. v. Armstrong, N.D.Cal., 352 F.Supp. 50, 55 (1972) (an impact statement “is not to be merely an exercise in project justification but rather a working paper of sorts, one essential input into agency decisions concerning the contours of Federal action’). In his dissent to the Court’s reversal of our first SCRAP opinion, Mr. Justice Douglas quotes Congressman Dingell, a main sponsor of NEPA. That quotation unfortunately is even more appropriate at this stage of the SCRAP litigation. “* * * Some agencies are complying poorly. They decide what they are going to do and then write an en- vironmental impact statement to support the decision. That is not what Congress had in mind. I am fearful that we are breeding a race of impact statement writers who put all the right words down but don’t really get environmental concerns involved in the decision-making process. * * *” United States v. SCRAP, supra note 3, 412 U.S. at 713 n. 10, 93 S.Ct. at 2429. CEQ must have been aware of this problem in drafting its advisory guidelines on agency compliance with NEPA. These guidelines state: “* * * It is important that draft environmental] state- ments be prepared and circulated for comment and 25a pare an impact statement before making a decision significantly affecting the environment, it must star‘ its procedures over again, including the procedure required by Section 102 of NEPA, so that the de- cision-making process can be fully informed through- out. In this case, not only did the Commission fail to start over in considering whether to approve the rate increases, it did not even take its after-the-fact envi- ronmental consideration through the entire “existing agency review processes.” The “processes” for Com- mission review of proposed general rate increases are set forth in Section 15(7) of the Interstate Com- merce Act. The Commission is empowered by the sec- tion to make orders concerning these proposed rates “after full hearing.” The Commission held a hearing before its October 4 order before it had even com- menced preparing an impact statement. It refused, however, to hold another hearing to reconsider the increase on recyclables it had already decided upon in light of the impact statement it had prepared. It should be clear to all agencies by now that hearings are key aspects of agency review processes during furnished to the Council as early as possible in the agency review process in order to permit agency decisionmakers and outside reviewers to give meaningful consideration to the environmental issues involved. In particular, agencies should keep in mind that such statements are to serve as the means of assessing the environmental im- pact of proposed agency actions, rather than as a justi- fication for decisions already made. * * *” 38 Fed.Reg. 10858 (1973). 26a which environmental impact statements must be con- sidered. The words of the Court of Appeals for the Second Circuit are clear: “* * * [Wile conclude that the Commission was in violation of NEPA by conducting hear- ings prior to the preparation by its staff of its own impact statement * * *. * * * “* * * (T lhe statement may well go to waste unless it is subject to the full scrutiny of the hearing process * * *.” Greene County Planning Board v. FPC, 2 Cir., 455 F.2d 412, 422 (1972) (emphasis in original). And the words of the Court of Appeals for the District of Columbia Circuit are equally clear: “The question here is whether the Commission is correct in thinking that its NEPA responsi- bilities may be ‘carried out in toto outside the hearing process’—whether it is enough that envi- ronmental data and evaluations merely ‘accom- pany’ an application through the review process, but receive no consideration whatever from the hearing board.” Calvert Cliffs’ Coordinating Committee v. USAEC, supra, 146 U.S.App.D.C. at 41, 449 F.2d at 1117. The railroads attempt to distinguish Greene County and Calvert Cliffs’ by stressing that in those cases the agency hearings produced an examiner or hear- ing board report as an initial stage in the decision- making process, while in a general revenue proceed- ing the first and only decision is that of the Commis- sion itself. But there is nothing in either of the cases, 27a or more importantly in Section 102(2)(C), to indi- cate that, because a stage in the review process dur- ing which the proposed action is considered does not culminate in an intermediate agency opinion, that stage may be circumvented for purposes of NEPA. Indeed where, as here, the hearing is before the Com- mission itself, and is the only one provided, it may well be the most important stage in the decision- making process. The Commission attempts to defend its refusal to hold hearings during which the impact statement could have been considered by arguing that those with environmental concerns had adequate opportu- nity to comment on the approval of the rate increase. The Commision primarily refers to the oral hearing held prior to the October order during which envi- ronmental comments were in order and to the Com- mission’s solicitation of comments on the draft envi- ronmental statement. Neither can substitute for strict compliance with the commands of Section 102 (2)(C). During the oral hearing held prior to the October order there was no impact statement, draft or otherwise, upon which environmentally concerned parties could focus their comments; nor was there any statement to inform the Commission as to the worth of any environmental comments which were made. The comments on the draft statement, pre- pared subsequent to the October order, were directed to and considered by the agency staff members who prepared the statement. Section 15(7) hearings are to be held by the Commission itself and are a stage 28a at which the Commissioners can be informed of envi- ronmental considerations. They thus constitute an independent and important stage in the agency re- view process. IV [4] If what we have discussed above was all that was wrong with the Commission’s compliance with Section 102(2)(C)’s requirements, it might be suffi- cient for the Commission to hold another hearing in which all parties could participate fully in canvassing the NEPA and national transportation policy con- siderations concerned with rate increases. The Com- mission could then make a thorough reconsideration of the proposed recyclable rate increase in light of that hearing and the impact statement which it has already prepared. However, we find the statement itself to be deficient and to require repreparation. The statement seems to meet the prescriptions of NEPA as to form; it has sections, for instance, on the five considerations which NEPA requires agen- cies to address in their statements. However, as we stated above, a reviewing court must demand more than pro forma compliance with Section 102(2)(C); it must be assured that the agency engaged in a full and good faith “individualized consideration and bal- ancing of environmental factors.” Calvert Cliffs’ Co- ordinating Committee v. USAEC, supra, 146 U.S. App.D.C. at 39, 449 F.2d at 1115.% We perused the *6 “Compliance with NEPA is not established merely by the filing of an impact statement in the form and by the pro- 29a statement carefully and cannot find that it presents such a full and good faith consideration and balanc- ing. This conclusion is not surprising given the above-recounted history of the statement’s post-deci- sion preparation. We note first that a reader of the statement must be struck by the combative, defensive and advocatory language and style in which it is written. The state- ment continually attacks the views of those opposing the increase, denominating these “one-dimensional” * and impaired by “syndromes.” * One report is slight- ed merely because it was prepared by urban groups ” and EPA is chided for needing a course in the funda- mentals of rate regulation.*° Nowhere does the state- ment set forth an environmental argument against the rate increase as its own or as worthy of even partial acceptance; environmental arguments are ascribed to others and then rebutted.” The state- cedure outlined by the statute.” Brooks v. Volpe, W.D.Wash., 350 F.Supp. 269, 275 (1972). See also City of New York v. United States, E.D.N.Y., 344 F.Supp. 929, 940 (1972); En- vironmental Defense Fund, Inc. v. Corps of Engineers, United States Army, E.D.Ark., 342 F.Supp. 1211, 1214 (1972); cases cited at note 23 supra (all requiring “good faith” compliance). 27 Environmental Impact Statement, supra note 11, at 11-12. Id. at 14. 2° Td. at 10. 9° Td. at 194. * To this extent at least, the statement is not in accord with CEQ’s advisory guidelines that a statement is not to “be used as a promotional document in favor of the proposal, at the expense of a thorough and rigorous analysis of environmental 30a ment’s defensiveness, and the Commission’s insensi- tivity to its NEPA responsibilities, are even mani- fested at one point by an assertion that NEPA does not require any balancing of environmental costs: “T'Wile find in [NEPA] no Congressional expression that we should invalidate railroad rate proposals otherwise shown by the proponents to be just and rea- sonable under the Interstate Commerce Act.” To be sure, a court probably would not declare a state- ment to give less than full and good faith considera- tion on the basis of its language and style alone. But we deem this language and style to be at least evi- dentiary of the fullness and the fairness of the agency’s consideration. More important to our judgment on the adequacy of the impact statement is its handling of the com- ments made on the draft statement. Section 102(2) (C) states: “Prior to making any detailed statement, the re- sponsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special exper- tise with respect to any environmental impact involved. * * *” 42 U.S.C. § 4332(2)(C). The Commission circulated a draft statement not only to several concerned Ex- ecutive agencies and departments, but also to the par- risks.”” CEQ Memorandum to Federal Agencies on Procedures for Improving Environmental Impact Statements, 3 Env.Rep. —Cur.Dev. 82, 84 (May 19, 1972). *? Environmental Impact Statement, supra note 11, at 185. 3la ties in this action. Most of the recipients of the statement responded with extensive critical comments. The Commission appended these comments to the back of its final statement and in some instances made arguments against the criticisms within the body of this final statement. None of these com- ments, however, caused the Commission to alter even partially its conclusions or to change the statement’s analysis in any noticeable way. We find the Com- mission’s failure to alter its draft impact statement in response to three of the critical comments of other federal agencies particularly troublesome. First, it was suggested by the Department of Com- merce and EPA that a quantitative and thorough eco- nomic study be made on the responsiveness of the demand for secondary materials to changes in trans- portation costs. The final statement criticizes the methodology of a privately commissioned study which concludes that the development of scrap iron markets is being retarded by the transportation rate struc- ture.” But the statement does not offer any rigorous price sensitivity studies of its own.” Instead it relies 88 Battelle Columbus Laboratories, Summary Report on the Impact of Railroad Freight Rates on the Recycling of Ferrous Scrap 2 (Jan. 14, 1972) (hereinafter “Summary Report’). * It is not, of course, sufficient under NEPA for an agency to dismiss the environmental impact studies of opponents of the proposed action. It is the agency’s responsibility to en- gage itself in the study necessary to gauge environmental effects. “The requirement that the statement be detailed places a heavy burden on government agencies to gather for and include in the impact statement enough information to 32a on general discussions of past scrap demand trends. For instance, it bases its conclusion that the chal- lenged increases will have no significant impact on demand for iron scrap primarily on the concurrence of past scrap demand and rate increases.** We find the statement’s reliance on this concurrence trouble- some because it ignores the fact that the demand for primary goods was also increasing during the period of past rate increases and the possibility that scrap demand would have increased even more if rates on iron scrap had been held down. It is difficult for us to understand how the statement can conclude that there is no significant environmental impact without a quantitative study of the responsiveness of the de- mand for each type of scrap to changes in recyclable transportation costs. Second, EPA, which placed the statement in its “inadequate” category, suggested that a Department of Transportation Burden Study establishes that at least some secondary materials are contributing more revenue over costs than do the virgin materials with which they compete.” The statement, however, does show that compliance has been genuine, not perfunctory. * * * NEPA requires each agency to undertake the research needed to adequately expose environmental harms.” Brooks v. Volpe, supra note 26, 350 F.Supp. at 276, 279. ** The statement asserts at one point that a price-sensitivity study is not required because of the concrete evidence of this concurrence. Environmental Impact Statement, swpra note 11, at 72 n. 14a. % Dept. of Transportation, An Estimation of the Distribu- tion of the Rail Revenue Construbtion by Commodity Groups and Type of Rail Car—1969 (Jan. 1973). 33a not provide any comprehensive alternative analysis of the relative cost contribution of secondary and primary materials; it shows only that one type of scrap is not disadvantaged within one area relative to its competing virgin material.” The statement also speculates as to why the rate disparities might be cost-justified and stresses that railroad pricing is not in any case totally cost-based; it does not, how- ever, present a rigorous analysis of what justifies the Specific disparities between primary and secondary rates. We think that if the transportation costs do affect the demand for recyclable commodities, the im- pact statement must establish the particular justifi- cations for the rate disparities. Third, both EPA and CEQ criticized the draft statement for failing to consider the impact of the rate “increase on long-term investment in facilities which can make fuller productive use of recyclables. The final statement was not modified in response to this criticism. Though in explaining why transpor- tation rates have little impact on Scrap demand the statement repeatedly makes reference to the tech- nological and capital constraints on the use of scrap, the statement does not make any economic analysis of whether a hold down on recyclable rate increases might encourage the investment necessary to over- come these constraints. The statement does not, for instance, respond to one study’s conclusion that the rate differential between iron ore and scrap iron plays a “crucial and negative” role in the decision of ** Environmental Impact Statement, supra note 11, at 51. 34a steel manufacturers to invest in facilities such as electric arc furnaces which can produce steel using all scrap and no virgin iron ore.” The final statement’s failure to address adequately the above three criticisms of the draft statement can be derived from what we view as its most funda- mental and important deficiency—the limitation of its analysis to the marginal impact of the most recent rate increase with no discussion of whether the under- lying rate structure itself significantly affects the en- vironment. The statement makes this limitation of its analysis explicit: “It is contended that our approval of in- creased rail rates and charges on commodities moving for recycling purposes will serve to ag- gravate discrimination already allegedly in the railroad freight rate structure, to the detriment of recyclable commodities and the national re- cycling effort. * * * “* * * (S]uch a case does not provide an ap- propriate vehicle for examining these issues. * * *)) Environmental Impact Statement at 22. We fail to understand how any consideration of the environ- mental impact of approving the recyclable rate in- creases could be full without an analysis of how the underlying rate structure itself affects the environ- ment. It is the underlying rate structure which the percentage increases aggravate; if this structure contributes to the degradation of our environment, 38 Summary Report, supra note 33, at 24. 35a then the increases would at least presumptively ag- gravate that contribution. It is not enough to re- spond that whether a substantial rate disparity sig- nificantly affects the environment is not determina- tive of whether a marginal increase of that disparity itself has any significant impact. Any impact on the underlying structure could be eliminated by holding down recyclable rate increases each time the rail- roads requested a general rate increase.” The Com- mission’s failure to hold down the rate increases on recyclables would thus have a cumulative impact on the environment. Such cumulative impacts must be considered in NEPA statements. The Senate report on the passage of NEPA makes this clear: “* * * Environmental problems are only dealt with when they reach crisis proportions. Public desires and aspirations are seldom consulted. Im- portant decisions concerning the use and the shape of man’s future environment continue to be made in small but steady increments which perpetuate rather than avoid the recognized mis- takes of previous decades.” S.Rep. No. 91-296, 91st Cong., 1st Sess., 5 (1969). The advisory guidelines for implementation of NEPA issued by CEQ are responsive to this congressional intent: %* As stated by EPA in criticism of the final impact state- ment. “There is evidence that the current rate structure is in- equitable in its treatment of some secondary materials and general rate increases tend to perpetuate these inequities.” Letter from Acting Deputy EPA Administrator John Quaries to ICC Secretary Robert L. Oswald dated June 6, 1973. 36a “* * * The statutory clause ‘major Federal actions significantly affecting the quality of the human environment’ is to be construed by agen- cies with a view to the overall, cumulative im- pact of the action proposed (and of further ac- tions contemplated). * * * In considering what constitutes major action significantly affecting the environment, agencies should bear in mind that the effect of many Federal decisions about a project or complex of projects can be individ- ually limited but cumulatively considerable. 38 Fed. Reg. 10857 (1973). We suspect that if the Commission had recognized that it was obligated to consider the environmental impact of the underlying rate structure it would have had much greater dif- ficulty justifying even to itself the deficiencies in analysis upon which we focused above. For example, absent an elasticity study the statement would not have been able by citing past trends in scrap usage to dismiss the possibility that the underlying rate structure affected the amount of recyclables trans- ported. *?Courts have thus made it clear that agencies may not seize upon the concept of “distinctive and comprehensive” stages of decision-making to escape impact statement prepara- tion on the ground that early action such as laying the first section of roadbed of a new highway will entail little en- vironmental impact in itself. See, e.g., Citizens for Clean Air, Inc. v. Corps of Engineers, United States Army, S.D.N.Y., 349 F.Supp. 696, 708 (1972). "The Commission argues that if we agree with the state- ment’s conclusion that the recyclable rate increases will not have a significant impact on the environment, no impact state- 37a The Commission argues that an ongoing compre- hensive investigation into the railroads’ freight rate structure, Ex Parte No. 270, justifies its failure to consider the environmental impact of the underlying rate structure. That investigation, having been de- layed for several years, finally seems to be commenc- ing,*’ though there apparently is some question wheth- er this investigation will reconsider rate levels for re- cyclable commodities other than ferrous scrap.** How- ever, regardless of how near to completion and com- prehensive this study may be, it cannot substitute for the detailed impact statement which NEPA re- quires to be prepared before federal] action significant- ly affecting the environment is taken, not in recon- sideration of that action. The investigation in Ex Parte No. 270 did not and could not inform the Commission’s decision-making process with respect to the rate increase on recyclables.“ If the Commis- ment was required in the first place and we can uphold the Commission’s orders regardless of any findings we might make of failures to comply with the prescription of § 102(2) (C). We find this line of reasoning questionable. An accept- ance of the Commission’s argument would encourage agencies to avoid any explicit environmental balancing by concluding in impact statements that proposed actions have no significant environmental effects. However, because the statement’s limited definition of the environmental impact it considers prevents us from accepting its conclusion of no significant im- pact, we do not need to reach this argument. *2 See 38 Fed.Reg. 28596 (1973). *3 See id. at 28600. ‘* The Commission has effectively admitted both in the im- pact statement and in a later order that it needs to be more 38a sion desires to utilize analyses developed in the Ex Parte No. 270 investigation in preparing an ade- quate impact statement, it should, as suggested by CEQ and Commissioner Brown,“ place a moratorium on rate increases on recyclable commodities until Ex Parte No. 270 is completed. The necessity for the Commission to consider the environmental impact of the underlying rate struc- ture before approving rate increases on recyclable commodities is further underscored by the recent en- actment of Public Law 93-236, 93rd Congress, the fully informed on the environmental impact of the underly- ing rate structure. The final impact statement asserts that neither the costs nor the benefits of utilizing the freight rate structure “as a mechanism to allocate the costs of a recycling program * * * have been established.” Environmental Impact Statement, supra note 11, at 192. In its notice on the recom- mencement of Ex Parte No. 270, the Commission stated through Commissioner Hardin: “It further appearing, that while the 1969 burden study discloses that iron and steel scrap is one of the top twenty positive revenue contributors for movements with- in official territory, iron ores are similar [sic] disclosed for movements within official territory to be one of the top twenty deficit contributors to railroad net revenues; * . * - “And it further appearing, that there are presently available insufficient facts and data to enable the Co- ordinator properly to assess and quantify the environ- mental consequences of the numerous alternatives that may be pursued in the investigation program envisioned in this proceeding as required by the NEPA * * *.” 38 Fed.Reg. 28600 (1973) (italics in original). ** Environmental Impact Statement, supra note 11, at 213. 39a Regional Rail Reorganization Act of 1973. Section 603 of this Act requires the Commission to “adopt appropriate rules” to “eliminate discrimination ogainst the shipment of recyclable materials in rate structures * * * where such discrimination exists.” This provision is a legislative recognition of discrim- ination against recyclables in the existing railroad rate structure and a legislative direction to the Com- mission to eliminate it. The responsibility imposed by NEPA upon the Commission to “approach the maxi- mum attainable recycling of depletable resources,” 42 U.S.C. § 4331(b)(6), surely cannot be fulfilled unles this provision is complied with before rate in- creases on recyclable commodities are approved. V [5] We thus conclude that not only the Commis- sion’s preparation and utilization of its impact state- ment but also the contents of that statement fail to comport with the obligations imposed on the Com- mission by Section 102(2)(C). We vacate the Com- mission’s October 4, 1972 and May 2, 1973 orders and direct the Commission to reopen the Ex Parte No. 281 proceedings for full consideration of the proposed rate increases on recyclable commodities. The Commission should first prepare another draft statement to be circulated as specified by Section 102 (2)(C). This new statement must include an analy- sis of the underlying rate structure’s impact on the movement of recyclable commodities. The analysis would presumably entail a determination of the elas- 40a ticity of demand with respect to the price for each of several categories of recyclable commodities. The statement should also include an analysis of the ef- fects of the rate structure on investment in manu- facturing facilities which can make intensive use of scrap. Whatever impact of the rate structure on the short- and long-term demand for scrap is found should be translated into terms which meaningfully relate the environmental effects of the rates and rate increases. These effects are not necessarily limited to conservation of natural resources and elimination of solid wastes. For example, a recent EPA report states that 74 per cent less energy and 51 per cent less water are expended and 86 per cent less air pol- lution and 97 per cent less mining wastes are en- gendered when scrap iron is used in lieu of virgin ore in the production of steel.“° All the environmental effects must be balanced against the costs, if any, to the national transportation policy of attemping to alleviate the effects by not increasing the rates.“ Though we are aware that railroad rates are not totally cost-based, an analysis of the costs of not raising the rates would presumably include a con- sideration of whether the scrap shippers are now *©U. S. Environmental Protection Agency, Report to Con- gress on Resource Recovery 8 (Feb. 22, 1973). ‘*“In some instances environmental costs may outweigh economic and technical benefits and in other instances they may not. But NEPA mandates a rather finely tuned and ‘systematic’ halancing analysis in each instance.” Calvert Cliffs’ Coordinating Committee v. USAEC, supra note 23, 146 U.S.App.D.C,. at 37, 449 F.2d at 1113. 4la bearing more than their “fair share” of the rail- roads’ freight expenses. A comprehensive study o: the contribution to costs made by each category of recyclable commodities and the primary goods with which they compete will thus probably be necessary. [6] After comments are received on the draft statement, a final statement should be prepared. This detailed statement shall then “accompany the [con- sideration of the proposed rate increase] through the existing agency review processes.” As we have stressed above, in this case that review process in- cludes a hearing before the Commission. Plaintiffs have argued that this hearing must be governed by Sections 556 and 557 of the Administrative Proce- dure Act (APA), 5 U.S.C. §§ 556, 557 (1970), and that they thus must be given the opportunity to cross- examine those staff members responsible for prepara- tion of the statement. We cannot agree. Rate-mak- ing, involving basically legislative-type judgments, is a form of rule-making which is governed by Section 558, rather than Sections 556 and 557, of the APA. See United States v. Florida East Coast R. Co., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973). Sec- tion 53(c) states: “When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply * * *.” 5 U.S.C. §553(c) (1970). But the Supreme Court, in United States v. Allegheny- Ludlum Steel Corp., 406 U.S. 742, 756-758, 92 S. Ct. 1941, 32 L.Ed.2d 453 (1972), held that the words “after hearing” in another similar provi- 422. sion of the Interstate Commerce Act do not invoke Section 553(c) and thus Sections 556 and 557. “Sec- tions 556 and 557 need be applied ‘only where the agency statute, in addition to providing a hearing, prescribes explicitly that it be “on the record.” ’” Jd. at 757, 92 S.Ct. at 1950. See also United States v. Florida East Coast R. Co., supra, 410 U.S. at 234- 238, 93 S.Ct. 810. We also find nothing in the exist- ing regulations of the Commission requiring a fulb adjudicatory hearing. And inasmuch as NEPA re- quires only that the impact statement be transmitted through the existing agency review processes, we follow previous courts in refraining from holding that the Act requires an adjudicatory hearing where agency procedures do not provide for one.*“* We think, however, that “existing agency review processes” should be interpreted to encompass not only proce- dures required by explicit agency regulations but also those procedures which an agency customarily employs in consideration of a proposal of the type being analyzed for its environmental impact. In this case, when the general rate increase was first being considered without an impact statement, oral hear- ings were held before the Commission. This fact at least establishes a strong presumption for us that full consideration of the revised impact statement through *8 See, e.g., Jicarilla Apache Tribe of Indians v. Morton, 9 Cir., 471 F.2d 1275, 1285-1286 (1973); National Helium Corp. v. Morton, 10 Cir., 455 F.2d 650, 656-657 (1971); City of New York v. United States, supra note 26, 344 F.Supp. at 939-940. 43a “existing agency review processes’ must entail oral hearings before the Commission.“ After hearings are held, a final revised order should be issued manifesting a full reconsideration by the Commission of the rate increase on recyclables. This order should not be limited to adoption of the impact statement; it should include a reassessment of the national transportation policy supporting the orig- inal October order as well as a discussion of the final impact statement prepared by the Commission’s staff and of the comments on the draft statement so- licited from other concerned agencies. ** We further think that a strong argument could be made that oral public hearings should be held based on the CEQ advisory guidelines which state: “(e) Agency procedures developed pursuant to sec- tion 3(a) of these guidelines shall include provision for public hearings on actions with environmental impact whenever appropriate, and for providing the public with relevant information, including information on alterna- tive courses of action. In deciding whether a public hear- ing is appropriate, an agency should consider: (i) The magnitude of the proposal in terms of economic costs, the geographic area involved, and the uniqueness or size of commitment of the resources involved; (ii) the degree of interest in the proposal, as evidenced by requests from the public and from Federal, State and local authorities that a hearing be held; (iii) the complexity of the issue and the likelihood that information will be presented at the hearing which will be of assistance to the agency in fulfilling its responsibilities under the Act; (iv) the extent to which public involvement already has been achieved through other means, such as earlier public hearings, meetings with citizen representatives, and/or written comments on the proposed action. * * *” 38 Fed.Reg. 10858 (1973). 44a VI This does not, however, end the case. Plaintiffs do not merely ask for a declaration that the Commission violated the prescriptions of NEPA and an order directing it to reopen Ex Parte No. 281 for recon- sideration of the recyclable rate increases in accord- ance with these prescriptions. They also request that we enjoin the railroads from collecting the rate in- crements on recyclable materials until the Commis- sion completes its full reconsideration. Such an in- junction would be necessary to hold down the rates on recyclables; under the scheme established by the Interstate Commerce Act new tariffs filed by car- riers are effective absent a Commission order finding the tariffs unreasonable. See 49 U.S.C. §§ 6(3), 15 (1) (1970): As stated above, on June 7, 1973 we entered a temporary injunction against the railroads restrain- ing them from collecting the rate increases pending our review of the Commission’s October 4 and May 2 orders. The Supreme Court vacated this injunc- tion and remanded the case to this court for recon- sideration in light of its decision last term in Atchi- °° The only consequence of our vacating the Commission’s orders pending reconsideration of the rate increases “is that the railroads may not rely, in some subsequent proceeding, on a Commission finding that the proposed rates were just and reasonable. In an action for reparations, for example, the railroads could not gain any benefit from -the purported Commission approval of the increases.” Atchison, Topeka & Santa Fe R. Co. v. Wichita Board of Trade, supra note 16, 412 U.S. at 818, 93 S.Ct. at 2380. 45a son, Topeka & Santa Fe R. Co. v. Wichita Board of Trade, supra. Though it is far from clear that that decision prevents us from granting plaintiffs further injunctive relief, it raises substantial enough doubts concerning the propriety of such relief to stay our hand. We first note that our entering an injunction against the railroads is not precluded by the Court’s reversal of our first injunction in this case—the in- junction entered against the 2.5 per cent surcharge pending Commission consideration of the lawfulness of rate increases. In that reversal the Court held that Section 15(7) gave exclusive jurisdiction to the ICC to suspend rates pending its final decision on their lawfulness. United States v. SCRAP, supra, 412 U.S. at 690-691, 93 S.Ct. 2405. Now, however, unlike the time at which we issued our injunction against the surcharge, the Commission has issued what it at least thought was its final order on the rate increases. And in Wichita Board of Trade, de- cided the same day as SCRAP, a majority of the Court stated that the terms of Section 15(7) do not govern a case in which the Commission has issued what it intends to be its final order. 412 U.S. at 820, 826-828, 93 S.Ct. 2367. Moreover, this Wichita majority affirmed that District Courts reviewing Com- mission orders must have at least some power ancil- lary to their general powers of review and protective of their jurisdiction to enjoin railroads from collect- ing new charges pending final determination of the suit. Mr. Justice Marshall, writing for four mem- 46a bers of the majority, noted that while three-judge District Courts are only explicitly given power to enter orders against the Commission by 28 U.S.C. § 2324 (1970), “ ‘judicial review would be an idle ceremony if the situation were irreparably changed [by private parties] before the correction could be made.’” 412 U.S. at 819, 93 S.Ct. at 2381, quoting Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942). Here collection of the recyclable rate increases during the Commission’s reconsideration may well cause further irreparable environmental degradation.” "The relief we grant today against the Commission is clearly not called into question by the Court’s SCRAP or Wichita decisions. “Nor does anything in the Court’s opinion today deny to the district courts power to enjoin the Commis- sion to comply with NEPA * * * so long as no injunction is issued barring implementation of the rates themselves, cf. Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade, post, p. 800 [93 S.Ct. 2367].” United States v. SCRAP, supra note 3, 412 U.S. at 724-725 n. 1, 93 S.Ct. at 2486 (opinion of Mr. Justice Marshall). * The railroads argue that this is an inappropriate case to exercise the ancillary power posited by Justice Marshall because the Commission can correct any violations of NEPA without the railroads being enjoined from collecting the in- creases. This argument reflects a total misunderstanding of NEPA’s purposes. To be sure, the commands of NEPA will not change if the railroads collect the increases while the Commission attempts to comply with these commands. But the commands exist to enhance the quality of our environ- ment, not to test agencies’ capacity to respond to congressional directives. It is irreparable environmental change with which we must be concerned if our review is to be more than an “idle ceremony.” 47a However, Justice Marshall proceeded to state for the Wichita plurality that the considerations which underlay the Court’s interpretation of Section 15(7) demand that the courts’ ancillary power be limited. Justice Marshall’s definition of the ancillary power is critical, for Mr. Justice Douglas, the fifth member of the Wichita majority, would detract not at all from the general power of this court to enjoin the railroad,* while three other members of the Court argued that District Courts lack any jurisdiction whatever to enjoin rates even after a final Commis- sion order.“ Justice Marshall stressed that the most important of the considerations underlying the Court’s interpretation of Section 15(7) in Arrow Transportation Co. v. Southern R. Co., supra, the case primarily relied upon by the SCRAP Court, re- late to the concept of agency “primary jurisdiction.” This concept directs that until the agency has pro- vided its own views a court should demur from ex- pressing a view on matters which have been at least in part entrusted by Congress to an agency’s discre- tion and concerning which the agency has developed some degree of expertise. Before a court issues an injunction pending final determination of a suit, it normally either implicitly or explicitly makes an esti- mation of the likelihood of ultimate success on the merits of the party challenging the agency action. ** 412 U.S. at 826-828, 93 S.Ct. 2367. * 412 U.S. at 838, 93 S.Ct. 2367 (opinion of Mr. Justice White, in which Mr. Justice Brennan and Mr. Justice Rehn- quist join, concurring in part and dissenting in part). 48a See Virginia Petroleum Jobbers Assn v. FPC, 104 U.S.App.D.C. 106, 110, 259 F.2d 921, 925 (1958). The expression of such an estimation may well pro- nounce the views of the court on matters such as national transportation policy which are within the agency’s primary jurisdiction. A court contemplat- ing an injunction pending final determination will further make some weighing of the magnitude and ir- reparability of the harms which would be suffered by the parties depending on whether an injunction 1s issued. Ibid. This weighing may also require the court to evince its beliefs on matters concerning which the agency being reviewed has primary exper- tise. The danger that a reviewing court issuing an injunction would thus intrude on the primary juris- diction of the ICC moved the Wichita plurality to state that District Courts should not enjoin rates in order to protect their jurisdiction to review Commis- sion orders unless they entertain “substantial doubt about the consistency of the Commission’s action [on the substantive merits] with its mandate from Con- gress.” 412 U.S. at 822, 93 S.Ct. at 2382. Our uncertainty as to the meaning for this case of Justice Marshall’s opinion has a dual origin. First, we question whether issuance of an injunction here would intrude upon the primary jurisdiction of the Commission. The injunction overturned by the Wich- ita Court was issued against the railroads’ imposi- tion of separate charges for inspection of grain in transit because the Commission’s order approving such charges did not justify departure from a long- 49a standing rule proscribing them. In issuing the in- junction the District Court thus at least implicitly had to express its view that this departure was not justified. Matters of national transportation policy are, of course, within the especial expertise of the Commission; however, we are concerned here with matters of environmental policy and there is no rea- son to consider the Commission especially expert on the environment. Our issuance of an injunction pend- ing final determination would need only be a state- ment of our belief that a full consideration of the rate increases’ environmental impact will probably lead to a conclusion that those increases must be avoided. Further, Justice Marshall stressed that the injunction in the Wichita case was perforce based on a weighing of the injunction’s harm to carriers against its benefit to shippers. Not only does this weighing of the interests of carriers and shippers exclusively involve considerations of national trans- portation policy; it also must be done against the background of Section 15(7) which, by providing for repayment of charges ultimately found to be unrea- sonable, makes reparable any harms which might accrue to shippers should an injunction not issue. Our issuance of an injunction here would require consideration of environmental degradation for which the Interstate Commerce Act does not and unhappily probably could not provide reparation. We thus ques- tion the applicability of Justice Marshall’s Wichita analysis to this case. Our doubts are augmented ap- preciably by the fact that Justice Marshall dissented 50a from the reversal of our first SCRAP opinion, ad- vancing the same distinctions of our case from Wich- ita as we have set forth above. See 412 U.S. at 724, 728-732, 93 S.Ct. 2405. But even if the analysis of the Wichita plurality is applicable to this case, we do not think it obvious that an injunction against the railroads would be inappropriate. Justice Marshall’s Wichita opinion recognized that a court need not refrain from grant- ing an injunction and thus stating its views on the merits if the court believes it would have to reverse the agency if it does not change its decision after reconsideration. We indeed do entertain “substan- tial doubt” about the consistency of the Commission’s allowance of the rate increases with the congressional mandate that the Federal Government “use all prac- ticable means” to “approach the maximum attain- able recycling of depletable resources.” 42 U.S.C. § 4331(b) (6). We indeed might well question wheth- er the Commission can allow the recyclable rate in- creases without clearly giving “insufficient weight to environmental values.” See Calvert Cliffs’ Coordi- nating Committee v. USAEC, supra, 146 U.S.App. D.C. at 39, 449 F.2d at 1115. Nonetheless, out of an abundance of caution, we decline to consider fur- ther granting to plaintiffs additional injunctive re- lief. The October 4, 1972 and May 2, 1973 orders are vacated and Ex Parte No. 281 is to be reopened for further proceedings consistent herewith. So ordered. 5la FLANNERY, District Judge (dissenting) : The history of this protracted litigation is clearly set forth in the Court’s majority opinion. That his- tory reveals that the Supreme Court has on two occa- sions overruled findings of this Court on jurisdic- tional grounds. I Jurisdiction On June 18, 1973, the Supreme Court held that this Court was without jurisdiction to issue a pre- liminary injunction restraining a temporary sur- charge on shipping rates for recyclable commodities. The Court reasoned that section 15(7) of the Inter- state Commerce Act’ vested exclusive jurisdiction in the Interstate Commerce Commission to suspend rates, pending a final decision of their lawfulness.” On November 19, 1973, the Supreme Court vacated another injunction issued by this Court restraining the Commission and railroads from collecting certain rate increases on recyclable commodities, which the railroads intended to place in effect at the expiration of the statutory suspension period.’ The case was remanded to this Court for further consideration in '49 U.S.C. §15(7) (1970). United States v. Students Challenging Reg. Agcy. Pro. (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). >United States v. Students Challenging Reg. Agcy. Pro. (SCRAP), —— U.S. ——, 94 S.Ct. 533, 38 L.Ed.2d 326 (1973). 52a the light of Atchison, Topeka and Santa Fe Railway Co. v. Wichita Board of Trade.* These decisions by the Supreme Court clearly require this Court to re- consider its prior holdings and to determine whether it has jurisdiction in this matter. In Wichita, the Supreme Court held that judicial review of Interstate Commerce Commission decisions in rate cases is limited in scope and that such deci- sions are not to be disturbed unless they are unsup- ported by evidence, are made without a hearing, ex- ceed constitutional limits, or for some other reason amount to an abuse of power. Since the Commission in the present case has not yet determined that the rates in question are reasonable, this Court is clearly without jurisdiction to suspend them. Arrow Trans- portation Co. v. Southern Railway Co.’ The Supreme Court in Wichita also pointed out that Congress, in establishing the Interstate Commerce Commission, had created an administrative agency whose func- tion was to develop an understanding of national transportation problems and to use that expertise to determine what our national transportation policy should permit. Consequently, a court should ordi- narily refrain from expressing any view on such poli- cy before the Interstate Commerce Commission ex- presses its view. For this Court to issue an injunc- tion during an ongoing administrative proceeding would be to undercut the policies served by the doc- *412 U.S. 800, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973). *372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963). 53a trine of primary jurisdiction, and would slide the Court “unconsciously from the narrow confines of law into the more spacious domain of policy.” ° It is the established rule that general revenue or- ders of the Interstate Commerce Commission, such as the suspension orders directed to individual rates in this case, are not reviewable by the courts.’ The Supreme Court has ruled in this case that N.E.P.A. was not intended to repeal by implication any other statute.. There is no indication that Congress in- tended N.E.P.A. to overrule the long line of judi- cial decisions holding that general revenue orders, such as those presented in this case, are not review- able by the courts. This Court, therefore, clearly does not have juris- diction to enjoin the collection of the increased rates on recyclable materials. It follows that since the Commission’s orders are non-reviewable at this stage, * Atchison, Topeka and Santa Fe Railway Co. v. Wichita Board of Trade, 412 U.S. at 807, 93 S.Ct. at 2375; Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 85 L.Ed. 1271 (1941). 7 Alabama Power Co. v. United States, 316 F.Supp. 337 (D.D.C.), aff’d by an equally divided court, 400 U.S. 73, 91 S.Ct. 259, 27 L.Ed.2d 212 (1970); Electronic Industries Ass’n v. United States, 310 F.Supp. 1286 (D.D.C. 1970), aff’d per curiam, 401 U.S. 967, 91 S.Ct. 1188, 28 L.Ed.2d 318 (1971); Atlantic City Elec. Co. v. United States, 306 F.Supp. 338 (S.D.N.Y. 1969), aff’d by an equally divided court, 400 U.S. 73, 91 S.Ct. 259, 27 L.Ed.2d 212 (1970). ® United States v. Students Challenging Reg. Agcy. Pro. (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 2418-2419, 37 L.Ed.2d 254 (1973). 54a this Court is without jurisdiction to grant the relief requested. II N.E.P.A. Assuming arguendo that the Court has jurisdic- tion to review the adequacy of the N.E.P.A. state- ment submitted by the Interstate Commerce Commis- sion, I find the statement to be sufficient and in sub- stantial compliance with the requirements of N.E. P.A. The mandates of N.E.P.A. pertain to procedure. Although N.E.P.A. itself creates no substantive rights in citizens to safe, healthful, productive, and cultur- ally pleasing surroundings, the responsible federal agency is required to take these factors into account before commencement of a project. Upper Pecos Ass’n v. Stans.” The record in this case reveals that the Commission gave extensive consideration to the possible environmental impact of increased rates for certain recyclable commodities. The function of this court is not to decide whether it agrees with the Commission’s substantive findings but only to decide whether the record reveals that the procedure set forth in N.E.P.A. was followed and whether the Com- mission has fully and in good faith considered all fac- tors mandated by N.E.P.A. The Commission in my view has substantially complied with the require- ments of N.E.P.A. Based on the substantial record ° 452 F.2d 1233 (10th Cir. 1971). 55a already compiled, to remand for further hearings un- der N.E.P.A. would require the Commission to con- duct a largely ritualistic act. On November 7, 1973, the Commission reopened its investigation in this case for the purpose of fur- ther evaluating, in accordance with N.E.P.A., the environmental effects of increased railroad freight rates and [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0119%3A1. Public record. Not legal advice.