# Amicus Brief — Houston Lighting & Power Co. v. Interstate Commerce Commission

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1270%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1980
- **Citation:** 444 U.S. 1073

## Text

Supreme Court of the United States

OctoBER TERM, 1979

No. 79-793

Hovston LIGHTING AND PowER Company, Petitioner,
and
ARIZONA ELECTRIC PoWER CooPERATIVE, INCc., Petitioner,

V.

INTERSTATE COMMERCE COMMISSION, et al., Respondents.

BRIEF AMICUS CURIAE OF MORRIS K. UDALL.

PRO SE, IN SUPPORT OF JOINT PETITION WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT

Morris K. UDALL

235 Cannon HOB

Washington, D.C.
December 14, 1979

Press or Byron 8S. ADAMS PRINTING, INC., WASHINGTON, D. C.

TABLE OF CONTENTS

TABLE OF AUTHORITIES .....
INTEREST OF AMICUS CURIAE , .

SUMMARY OF REASONS WHY WRIT
SHOULD BE ISSUED none

REASONS FOR GRANTING THE WRIT.

1. The Pricing of Coal

PAGE

Transportation By Railroad

Must Be Governed By
Reasoned Standards.

2. Coal Rates Which Are
Discriminatory Are
Manifestly Unfair :

CONCLUSION wie: eee ae

TABLE OF AUTHORITIES

Page

CASES:

Burlington Northern, Inc. v.
United States, 555 F.2d 637

co. SC eh) RE ro.

I.C.C. v. Inland Waterways Corp.,
319 Uste 671 (1943). 7 o 7.

ek v. Sierra Club, 427 U.S.
390 6) * . e - 7 7 7 7 °

Trans Alaska Pipeline Rate Cases,
$30. Uies GL (2978). . 2 ee wt

United States v. I.C.R. Co., 263
U.S. 515 (1924) ” . 7 - ° e . + +

COMMISSION PROCEEDINGS:

Annual Volume Rates On Coal --
Wyoming To Flint Creek, Arkansas,
Docket No. 36970, and Southwestern
Electric Power Co. v. Burlington
Northern, Inc., Docket No. 26980
(Combined decision served May 25,
1979) (not officially printed
(Dissenting opinion of Commissioner
Christian served June 20, 1979)
(not officially printed), appeals
docketed sub nom. Burlington

Northern, inc. v. Unite ates.
No. 79-1547 (D.C. Cir., filed

May 25, 1979) and Southwestern

Electric Power Company v. ICC,
it Be SOOO) ke a ke ke
ii

10

19

20

20

19

ec le Rita tas 8 atts eb ial ike ama patties whine:

Wet ale MCR ae aa ae

me + teh erent ests

ANE tet ts OORT se ign ks A ere ORT aT ney Sr Ant MAA ts

Page

STATUTES :

&
Clean Air Act Amendment of
1977, Pub. L. No. 95-95, Stat.
685 e e e s ° * ° e > e ° e o Ld is 5

Energy Policy and Conservation
Act, Pub. L. No. 94-163, 89
Stat. 37 (1975) e 7 e. . . e ° ° ° 13

Interstate Commerce
Act e . a e - i + e o - =o e 6,17

Powerplant and Fuel Use Act
of 1 ’ Pub. L. No. 95-62 ’
92 Sta . 246 2 o . n . es a - aa se 5

Revised Interstate Commerce

Act, Pub. L. No. 95-473, 92

Stat. 1337 (1978), codified at

49 U.S.C. 810101 et seq. . . . 6,17,18

810729 e * o e ° e o e o e = 15
Baeeaeies «4s 6% “Ss wy ee 16

Surface Mining Control and
Reclamation Act of 1977, Pub. L.
No. 95-87, 91 Stat. 445 a ee 5

Railroad Revitalization and

Regulatory Reform Act of 1976,

Pub. L. No. 94-210, 90

Stat. 33 cw eo ge wl 4 ey Oy Op Reae

iii

Page
MISCELLANEOUS :

Brief for Respondent United

States of America, San Antonio,

Texas v. United States, No. 78-

2051 (D.C. Cir., filed Oct. 25,

ROTO? 26).6 See eee ee ee ws. - Ti

S. Rept. No. 46, 49th Cong.
Be GEOG: Teepe 26s «w Soe ew oe we CCR

iv

ee

a. a pe tins ee ay Ne ha

IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1979
NO. 79-793

HOUSTON LIGHTING AND POWER COMPANY,
Petitioner

and

ARIZONA ELECTRIC POWER COOPERATIVE, INC.,

Petitioner

Vv.

INTERSTATE COMMERCE COMMISSION, et. al.,

Respondents

BRIEF AMICUS CURIAE OF MORRIS K. UDALL,
PRO SE, IN SUPPORT OF JOINT PETITION
WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT

Morris K. Udall
235 Cannon HOB
Washington, D.C.

December 14, 1979

INTEREST OF AMICUS CURIAE

Amicus Curiae is a member of the

United States House of Representatives
where he serves as Chairman of its
Committee on Interior and Insular
Affairs and the Subcommittee on Energy
and the Environment. He has represented
the second district of the State of :
Arizona since 1961. In 1976, he was a
candidate for President of the United
States.

Since 1974, Amicus has been
involved on a continuous basis with
major aspects of the nation's very
grave energy problems which are atthe
root of the dispute between the rail-
roads and petitioners. Amicus, in
recent years, successfully and un-
successfully has sponsored and led the

od

legislative efforts of the United

2

State Congress to deal with such
important and controversial issues as
national standards for the regulation
of strip mining, the interstate trans-
portation of coal by slurry pipeline,
the preservation of the Alaska wilder-
ness, the creation of an Energy
Mobilization Board, the regulation

of nuclear energy, and the transpor-
tation and delivery of Alaska oil and
gas. As a consequence of his
legislative experience and background
in dealing with energy problems of
national scope and impact, amicus
perceives an issue of national
significance that is both distinct
from and broader than the issues
presented by petitioners. It is the
purpose of Amicus to underscore

this circumstance for the Court.

3

Finally, while petitioners nominally
bear and pay the railroad charges here
in dispute, the real parties in interest
are the electric consumers who ultimately
pay these charges as a surcharge to their
monthly electric bills. Many of the
consumers paying the disputed charges
here before the Court are residents of
the second district of Arizona. Count-
less numbers of consumers from other
districts will also be directly
affected by the direction which is
taken by coal transportation pricing.
It is essential that the immediate
interests of these persons be pressed

in the present proceedings.

SUMMARY OF REASONS WHY
WRIT SHOULD BE ISSUED

oe
The Congress has been diligent
and conscientious in its sustained

4

ae i a

efforts to formulate a rational energy
policy for this nation. Increased

usage of domestic coal is the lynchpin
to that policy. We have enacted
legislation to foster increased coal
usage while protecting our environment
in connection with both the mining and
the burning of coal.2/ This carefully
formulated approach, however, is going
awry because of the unprincipled fashion
in which the I.C.C. is administering the

new Railroad Revitalization And

Regulatory Reform Act Of 1976, Pub. L.

17 See, e.g., Powerplant and Industrial
Fuel Use Act of 1978, Pub. L. No. 95-620,
92 Stat. 246; Clean Air Act Amendments
of 1977, Pub. L. No. 95-95, 91 Stat 685.
Surface Mining Control and Reclamation
Act of 1977, Pub. L. No. 95-87, 91
Stat. 445. —

No. 94-210, 90 Stat. 33 ("4-R Act") rate-

making amendments2/ as they apply to
railroad rates on our nation's emerging
bituminous coal traffic. In the case of
coal, unlike most other fossil fuels,
transportation usually constitutes the
lion's share of the delivered cost of
the fuel. The agency's unreasoned
treatment of these critical questions

is particularly offensive to Amicus

2/ These 4-R Act provisions amended
existing sections of the Interstate
Commerce Act ("Act"), then set out at
49 U.S.C. Sl et seq. Recently, the
Congress recodified the Act, without
substantive change. See the Revised
Interstate Commerce Act ("Revised
Act"), Pub. L. No. 95-473, 92 Stat.
1337 (1978). Provisions of the
Revised Act now appear at 49 U.S.C.

SI0101 et seq.

because it is discriminatory as well as
irrational and the citizens of Arizona
will bear the brunt of this unfair and
unlawful discrimination. If our system
of government is to function in the best
interests of the people, this Court
must step in to ensure that the agencies
accord a reasoned implementation of the
laws enacted by the Congress, especially
where the impact of the agency decisions
will adversely affect the national
welfare.

REASONS FOR GRANTING THE WRIT
(1) The Pricing Of Coal Transportation

By Railroad Must Be Governed By
Reasoned Standards

These are not the first cases
raising consequential questions on how
this nation's burgeoning coal trans-
portation will be priced. The first

case was Burlington Northern, Inc. v.

7

United States, 555 F.2d 637 (8th cir.

The issue of the particular
methods to be adopted for reali-
zation of the goals established by
the 4-R Act must first be decided
by the Commission.

1977). There the I.C.C. utilized the

traditional determinants for maximum rail

rates to prescribe a coal rate at a level 555 F.2d at 647

two-thirds of that set a year later in Despite the fact that Congress

Arizona. The court, in rejecting rail- required the I.C.C. in Section 205 to

road interpretations of the 4-R Act

"develop and promulgate" reasonable

a ie = e
accepte here by the C.C- and approved standards for implementation of the

by the court below, stressed at several . ; ; ‘
Y : Section and notwithstanding the earlier

junctures oint which Amicus believes
J i refusal of the Eighth Circuit to apply

has critical application here. Before
ae fee PPe*s " the Section until the standards and

the new 4-R Act ratemaking standard can

procedures were formulated, the agency,

be used to make railroad rates, the :
in these crucial coal rate cases,

Commission must issue the rules and
plunged ahead without benefit of any

idelines called for in this act and, :
¥ ; rules or regulations to sanction vastly

in particular, the Section 205 “revenue

increased freight rates based solely on

need" guidelines. As to this ; : , ‘
¥ . . some ineptly articulated notions of rail-

requirement, the Burlington Northern

road revenue need. While the lower
Court noted:

court incorrectly affirmed the un-

9

JE
4
if

reasoned actions because it perceived
the I.C.C. determination to be a "tempo-
rary approach," the facts are otherwise.
Petitioners show that the agency
continues to this day to set coal rates
in such an erratic and unreasoned

manner that one member of the Commission
has termed the process as a "wholesale
retreat from reasoned decisionmaking."

Annual Volume Rates On Coal -- Wyoming

To Flint Creek, Arkansas, Docket No.

36970, and Southwestern Electric Power

Co. v. Burlington Northern, Inc.,

Docket No. 26980 (Combined decision
served May 25, 1979) (not officially
printed) (Dissenting opinion of
Commissioner Christian served June 20,
1979 at sheet 1) (not officially

printed), appeals docketed sub nom.

Burlington Northern, Inc. v. United

10

States, No. 79-1547 (D.C. Cir., filed

May 25, 1979) and Southwestern Electric

Power Company v. ICC, No. 79-2082

(Sth Cir., filed May 3, 1979). Indeed
the United States is cognizant of both
the lack of standards and the importance
of the coal transportation at issue.
In a recent brief challenging the
legality of one of the Commission's
unreasoned coal rate decisions that
followed the actions Petitioners’ here
attack, the federal government argued
that:
Seldom in the 92-year existence of
the Interstate Commerce Commission
has the need for informative and
intelligible findings been more
acute ....

Brief for Respondent United States of

America, San Antonio, Texas v. United

States, No. 78-2051 (D.C. Cir., filed
Oct. 25, 1978).
11

The Congress in its enactment of

Section 205, the Eighth Circuit in the

initial judicial encounter with the 4-R
Act ratemaking provisions, and the United
States of America, are of one voice as

to the need for rational railroad rate-
making guidelines to govern the rates
charged on our nation's emerging and
vital traffic in bituminous coal. The
I.C.C. stands alone in its cart-before-
the-horse approach.

The failure of the I.C.C., abetted
by the lower court, to administer the law
as enacted by the Congress and in the
fashion directed by the Congress, has
brought uncertainty and confusion to
the important principles of coal
transportation pricing.

12

As an elected representative who is
actively engaged in the difficult task of
legislating programs to deal with our
nation's critical energy problems, Amicus
firmly believes that the federal agencies
must be particularly sensitive to the
impact of their decisions on the programs
that the Congress has devised to meet
national energy needs. This belief is
reflected in the laws passed by the
Congress. 3/ To carry out the intent
of the Congress, it is absolutely
essential that the agencies act in a

rational fashion.

37 See, e.g., The Energy Policy and
Conservation Act, Pub. L. No. 94-163,

89 Stat. 371. (1975). (Federal agencies
including the I.C.C. directed to issue
energy impact statements in designated
major regulatory proceedings. )

13

Particularly in the area of energy
transportation, arbitrary and irrational
agency decisions are likely to upset the
delicate balance of national economic,
social and political interests that the
Congress has incorporated into its
legislative programs. Because the I.C.C's
actions in the coal rate cases lack the
essential element of sound decision-
making, our nation's energy, inflation
and consumer protection policies are
thrown into disarray. It is the
responsibility and, indeed, the duty of
the Court to hear and resolve these
questions of indisputable consequence
to our nation's future.

In bbitiak Amicus believes that
it is quite likely that the strong
opposition to the Commission's decisions

now being registered before the federal

14

circuits will result in a maze of
separate opinions that will further
exacerbate the present uncertainties.
This Court's definitive review is
necessary to avoid this unhappy result.
Although the Court could wait for the
anticipated problems to fester before
review, such an action would be of
little solace to the petitioners. Due
to the peculiarities of the section
under which the respondents filed
petitioners' rates, this Court's failure
to set aside the lower court's decisions
will make it impossible for petitioners
even to begin to challenge the approved

rates until November, 1982.4/

47 The respondents filed their rate
Schedules pursuant to 49 U.S.C. 810729
immediately after the Commission's
November, 1977, decisions. This section
states in pertinent part:

15

The important national interests
at stake, combined with the petitioners
unfortunate inability to obtain remedial
relief without judicial action, makes
the decisions entered below particularly
ripe for review by this Court at this
time.

(2) Coal Rates Which Are Discriminatory
Are Manifestly Unfair

The cornerstone of our system of
railroad regulation is its absolute
proscription against undue discrimination.
The rendition of like transportation
services to similarly situated shippers

at different rates was viewed by the

Once a rate, classification, rule
or practice become effective under
this section, the Commission may
not, for five years, suspend or set
it aside [as unreasonably high or
discriminatory]....

49 U.S.C. 810729(b).

16

Congress as the greatest evil to be over-

come through enactment of the Interstate

Commerce Act. As stated in the influ-

tial 1886 Senate Report concerning the
Act:

no excuse can be offered for any
discrimination in the charges made
by a common carrier as between
persons similarly situated for
whom a like service is performed
under similar circumstances. This
is the most flagrant and repre-
hensible form of arbitrary
discrimination. Individual
favoritism is the greatest evil
chargeable against the management
of the transportation system of
the United States.

S. Rept. No. 46, 49th Cong. lst Sess.
188 (1886)

Today, some ninety years after the
original enactment of the Act in 1887,

the language of the Revised Act continues

to reflect the Congressional intent
to eradicate prejudicial "favoritism."

17

Prohibitions Against Discrimination
By Common Carriers

(a) A common carrier providing
transportaion subject to the juris-
diction of the Interstate Commerce
Commission ... may not charge or
receive from a person a different
compensation (by using a special
rate, rebate, drawback, or another
means) for a service rendered, or
to be rendered, in transportation
the carrier may perform under this
subtitle than it charges or receives
from another person for performing
a like and contemporaneous service
in the transportation of a like
kind of traffic under substantially
similar circumstances. A common
carrier that charges or receives
such a different compensation for
that service unreasonably
discriminates.

Revised Act 810741, 49 U.S.C. 810741.

Despite the long standing resolve
of Congress to eradicate unjust dis-
crimination, the I.C.C. has, nevertheless,
in its actions below permitted this
deplorable situation to occur. As
petitioners show, the electric consumers

18

of Arizona are being made to pay nearly
300 percent more for unit coal train
transportation than other similarly
situated coal receivers. Clearly,
differences of this magnitude constitute
a classic example of transportation
discrimination.

This Court has observed that a
rate may be set at a reasonable level
and yet still be unlawfully discrimini-

tory. United States v. I.C.R. Co.,

263 U.S. 515, 524 (1924); I.C.C. v.

Inland Waterways Corp., 319 U.S. 671,

685 (1943). Accordingly, should the
Court conclude that the levels of the
assailed rates are somehow the product
of reasoned ratemaking, there is no
way to justify the resultant flagrant
discrimination which has been directed
against the electric consumers of the

19

State of Arizona. If Arizona is made to
pay rail rates twice to three times
those paid by other coal receivers, we
have an unconscionable situation which
furnishes an independent basis calling
for this Court's review.
CONCLUSION

In the past, and properly so,
this Court has supplied definition and
direction on important aspects of our
nation's drive for energy independence.

In Trans Alaska Pipeline Rate Cases,

436 U.S. 631 (1978), the Court gave
direction to important questions on the
economics of oil pipelines. In Kleppe

v. Sierra Club, 427 U.S. 390 (1976),

the Court spoke to environmental issues
connected with the mining of the coal

moving to Houston. The decisions below

20

involving the economics of coal transpor-
tation, in the judgement of Amicus, are
at least as consequential to the success
of energy and economic independence and
deserve this Court's consideration.

Respectfully submitted,

MORRI - UDALL

235 Cannon House Office Bldg.
Washington, D.C. 20515
(202) 225-4065

21

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1270%3A09. Public record. Not legal advice.