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

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## Record

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

## Text

%
> No. 73-1966
IN THE
Supreme Court of the United States
OcTOBER TERM, 1974

ABERDEEN AND RocKFISH RarroaD CoMPANy, ét al.,
Appellants,
Vv.

STUDENTS CHALLENGING REGULATORY AGENCY

Procepures (S.C.R.A.P.), e¢ al.,
Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

REPLY BRIEF OF THE ABERDEEN AND ROCKFISH
RAILROAD COMPANY. ET AL.

T. A. MILLER CHARLES A. HoRSKY
Southern Pacific MIcHAEL BoupbIN
Transportation Co. WALTER HELLERSTEIN
One Market Street 888 Sixteenth Street, N.W.
San Francisco, Calif. Washington, D.C. 20006
94105

’ Epwarp A, KATER
ALBERT B. Russ, JR 1600 Three Penn Center

Seaboard Coast Line Philadelphia, Pa. 19102
Railroad JAMES L TaPtxy
.O. 5 daa : :

P.O. Box 27561 P.O. Box 1808

Richmond, Va. 23261 Washington, D. C. 20013

Attorneys for. Aberdeen
and Rockfish Railroad
Company, et al.
March 1975

TABLE OF CONTENTS

Page

I. AppeLiets’ CLarms Tuat THE Case Is Moor or
Hat THE District Court Orver Is Nor APPEAL-
ABLE ARE WitHouT Merit anv Do Not, 1n Any
Event, Warrant AFFIRMANCE OB DISMISSAL OF
wee APPRAL ....0.ccccccccccccsccccssccerces 2

Il. Tue Districr Covrt Lackep JURISDICTION To
Review THE ComMIssION’s GENERAL REVENUE
Ce a reer rrr re re ee 12

III. Ow THE Merits oF THE Case, THE LowER CourT ~
Errep sy ~“SusstirutTinc Its JUDGMENT FOR
THAT OF THE RESPONSIBLE AGENCY ...........- 17

CONCLUSION ....... Bea ender sasavetedewds -44eeSenees 27

TABLE OF CITATIONS
CasES: .

Alabama Power Co. ¥. United States, 316 F.Supp. 337
(D.D.C. 1970), aff’d by an equally divided Court,
400 U.S. 73 (1970) ......- 0. ccc ccccccccccens passim
Atchison T. & S.F. Ry. v. Wichita Board of Trade, 412
US. S00 (1018) sinc cecvcecevssceswspesesessss:
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. 72x(1970) «0.0.6... - ee ee ee ee ees passim
Bowman Transp., Inc. v. Arkansas-Best Freight
System, Inc., 43 U.S.L.W. 4091 (U.S. December 23,

TOTE) dads cncnredngceneens oecenneserersanseees 23
Chicago, M., St. P. & P. R.R. v. United States, 366 U.S.

745. C061) os otc cavseee eesusenewew easy 4 cus 8
City of New York v. United States, 344 F.Supp. 929

(ELDNAY. 1978) cdccccscccascascanyssennte2 se. 18
Cramp v. Board of Public Instruction, 366 U.S. 934

gb) reer Saab sabes ewanere bares Senses 5

Duke Power Co. v. Greenwood County, 299 U.S. 259
Gl.) ee nee eee ence ee eT 4

ii Table of Citations Continued
| Page

‘Edwards Motor Transit Co. v. United States, 201
F. Supp. 918 (M.D. Pa. 1962) .........-+s.+250> 23
Electronic Industries Ass’n v. United States, 401 U.S.
OOF IGT): vice esoviwscssvsccsingvens geneous passim
Environmental Defense. Fund v. Corps of Engineers,
470 F.2d 289 (8th Cir. 1972), cert. denied, 412 U.S.
Se of ee errr Te. caakaen eee ens 21
Environmental Defense Fund v. Corps of Engineers,
492 F.2d 1123 (5th Cir. 1974) ........-.ceceeees 24.
Frozen Foods Express v. United States, 351 U.S. 40
C1956) on cscs dcadedvtnadedee ce pede ee eeeees 10,

SOG UB. 271 (1DKO) on. nc ccccccccccccscessacees 24
Gunn v. University Committee to End the War, 399

U.S. 383 (1970) ‘2... ce cree cece ecedenceerseeee 11
ICC v. Inland Waterways Corp., 319 U.S. 671 (19438) 23 |
ICC v. J-T Transp. Co., 368 U.S. 81 (1961) .......... 23
ICC v. Mechling, 330 U.S. 567 (1947) .,......---2--- 23.

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)... 11
Lang Transp. Corp. v. United States, 75 F.Supp. 915

(B.D. Cal. 1948) 1.0.22. cccccescssccseccccnssces 23 :
Louisville ‘& Nashville R. R. v. United States, 245 U.S.
PP MER (IO1G) oct ccc nds edie iees eens vassegexnnces 23
Mitchell v. Donovan, 398 U.S. 427 (1970) ......:... 11, 12

National Helium Corp. v. Morton, 486 F.2d 995 (10th,
Cir. 1973), cert. denied, 416 U.S 993 (1974) .... 18, 19
National Resources Defense Council v. Morton, 458

F.2d 827 (D.C. Cir. 1972) .......eecccsccncssees 19
Phillips v. United States, 312 U.S. 246 (1941)........ 11
Public Service Comm’n v. Brashear Freight Lines, ,

Iuc., 306 U.S. 204 (1989) ....... ce eeecercecceees 11

Rorick v. Board of Comm’rs, 307 U.S. 208 (1939) .... 11
Schaffer Transp. Co. v. United States, 355,U.S. 83

CET) co keva retin avnsve te vateets vineeaderegans 8
Scientists’ Institute for Public Information v. AEC,
481 F.2d 1079 (D.C. Cir. 1973) ..........eeeeees 19
SCRAP v. United States, 371 F.Supp. 1291 (D.D.C.
(fore ete errr eeTTreriTT Tit eS eee passim
Stainback v. Mo, Hock. Ke Lok Po, 336 U.S. 368
AGRO). hv cacrdasvie sass cnngsses teens ee jus «|
United States v. Dixie Highway Express, Inc., 389

V.8. 409 (1967) 2 nc ccc ccc eben ccscccssieecsssece 23

Table of Citations Continued p ili

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

na corcycagt MENTE TT OT oe EN 23
United States v. Munsingwear, Inc., 340 U.S. 36 (1950) 4
United States v. National City Lines, 337 U.S. 78

SMS Sawa s bad vis baa thar dues Su cous beee races 8
United States v. Pierce Auto Freight Lines, Inc., 327
fae sn lh ean, i Oe, RE ag 23
United States v. Ryder, 110 U.S. 729 S| rere §
United States v. SURAP, 412 U.S. 669 bo eee 3, 21
United States v. United States Gypsum, 333 U.S. 364
Oy OE LE 24°
ICC Ex Parte Proceeprnas:
hgh led | gpa hud CEN OPORTO OTT OT AT ay 24, 25
Final Environmental Impact Statement (Sub. Nos.
it OS TE OT Ea RAE REE tt 24, 25
Ex Parte No. 281, 346 1.C.C. 88 i. : ) Senate passim
aiies” ~ dean or$eloe aad COCO CE Tee PO aa 24, 26
Final Environmental Impact Statement (Sub. No.
Re ae a Re 24, 26
STaTUTEs:
Interstate Commerce Act, Section 13(1), 49 U.S.C.
ay Eee Asser » &
National Environmental Policy Act, Section 102( 2)
(C), 42 U.S.C. OF ease ie 4) atid 4
Public Law 93-584, 88 Stat.1917...........00 07777" 11, 23
Urgent Deficiencies Act of 1913, 38 Stat. 220 ... 6, 7, 11, 22
28 U.S.C. § 47, 47a (1940) ....0.0..........0007 7, 8,10
28 U.S.C. § 380, 380a aa COO aa By 8
me UBG $1968... 2... 4,7, 8,10
8 U.S.C. §2101 ......... el” 8
28 U.S.C. § 2321... 12
28 U.S.C. § 2325 ........ ree
ON clo ceveseercivesterceiecssc
MISCELLANEOUS:
Burstein, ‘‘ Judicial Review of ICC Orders,’’ 38 ICC
Pract, J. (1971) oo... eee sess sesseceeceesss.,,. 8
C. Wright, Federal Courts (2d ed. 1970) ............

8
H.R. Rep. No. 93-1569, 93rd Cong., 2d Sess, (1974) ... 12
Stern & Gressman, Supreme Court Practice (1969)... 5

— a
SGP LAE OA ELS AOE SP

IN THE
Supreme Court of the United States

OcToBER TERM, 1974

No. 73-1966

ABERDEEN AND ROCKFISH RAILROAD Company, et al.,

Appellants,
v.

STUDENTS CHALLENGING REGuLATORY AGENCY
Procepurss (8.C.R.A.P.), e¢ al.,
Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

REPLY BRIEF OF THE ABERDEEN AND ROCKFISH
RAILROAD COMPANY, ET AL.

In their answering briefs,’ appellees suggest for the
first time that the present controversy is ‘‘academic”’
(see p. 2, below); and, alternatively, they object to
this Court’s jurisdiction to review the merits of the
lower court’s decision. As we show below, both objec-
tions are without foundation and this Court presum-
ably rejected the objection to its jurisdiction months
ago. In any event, if this case were moot or this Court

' This reply is directed to the answering briefs filed by SCRAP
and EDF, et al. (‘“‘SCRAP-EDF’’) ; ISIS (“‘ISIS’’) ; and NARI,
et al. (‘‘NARI’’).

a

2

did lack jurisdiction, the consequence would not be
affirmance of the judgment below or dismissal—as ap-
pellees assume—but rather an order by this Court
vacating the judgment below and remanding with in-
structions.

There is in fact a major jurisdictional issue at the
threshold of this case, but it concerns the jurisdiction
of the District Court rather than this tribunal. As the
railroads showed in their opening brief, the District
Court lacked jurisdiction to review general revenue
orders, particularly where (as here) the challenge is
fundamentally directed at rates on particular com-
modities rather than the railroads’ general revenue
needs. Appellees have no persuasive answer to this
jurisdictional objection.

Finally, on the merits, appellees’ attacks on the
Commission’s lengthy. and detailed environmental im-
pact statement do not justify the District Court’s deci-
sion. On the contrary, they merely confirm that, if
the sweeping and untempered judicial review of im-
pact statements utilized by the District Court is sus-
tained, virtually no impact statement could be found
sufficient. Here, the adequacy of the present impact
statement is confirmed by appellees’ own repeated re-
liance on subsequent ICC impact statements which
reached the same ultimate conclusion as the impact
statement sought to be condemned.

Il. APPELLEES’ CLAIMS THAT THE CASE IS MOOT OR THAT
THE DISTRICT COURT ORDER IS NOT APPEALABLE ARE
WITHOUT MERIT AND DO NOT, IN ANY EVENT. WARRANT
AFFIRMANCE OR DISMISSAL OF THE APPEAL.

1. Throughout SCRAP-EDF’s brief, there is a re-
eurring leitmotivt:hat the effect of the District Court’s
decision is ‘‘academic’”? (SCRAP-EDF Br. 4), “‘nil”

2

3

(id. 5), ‘‘inconsequential’’ (id. 27), or ‘‘moot’’ (id. 78)
in some nontechnical sense.? Although the railroads
believe the Court may decide this case without reach-
ing the merits—by disposing of it on the jurisdictional
grounds which the railroads have pressed in their
opening brief—there is no merit to the appellees’ con-
tention that the District Court decision was or is tow
in any sense hypothetical or academic.’ In fact, that
decision ordered the reopening of Ex Parte No. 281
for further proceedings and gave detailed instructions
to the Commission as to the preparation and contents
of a new impact statement upon remand. The District
Court ordered the Commission to ‘‘prepare another

?SCRAP-EDF claim that ‘‘[w]hile this case may not be moot in
the technical sense, its connection with the real world is tenuous,
and likely to become more so.’” SCRAP-EDF Br. 78. It is
unclear whether ISIS, which incorporates by reference several of
the comments made in the SCRAP-EDF brief (see ISIS Br. 3),
joins SCRAP-EDF in making this suggestion.

3 This is the third time in the course of this litigation that one
or more of the appellees have suggested that a railroad appeal to
this Court should be dismissed as moot. In the fall of 1972,
SCRAP urged that the railroads’ appeal be dismissed as moot
when the railroads appealed from| the lower court’s original in-
junction directed against the interim emergency surcharge as ap-
plied to recyclable commodities. See SCRAP’s ‘‘suggestion of
mootness’’ contained at pp. 12-15 in SCRAP’s motion to dismiss
or affirm, December 1972. This Court, of course, rejected the
suggestion of mootness, noted probable jurisdiction and thereafter
reversed the lower court's injunction. United States vy. SCRAP,
412 U.S. 669 (1973). Again, in the fall of 1973 in their motions
to dismiss the railroads’ appeal from the District Court’s prelim-
inary injunction issued in June 1973, the appellees argued that the
appeal was moot. See motions to dismiss submitted by SCRAP,
EDF, ISIS, NASMI, ef al., September and October 1973. This
Covet again rejected appellees’ arguments and instead vacated the
- Digtrict Court’s injunction and remanded for further consideration
in light of Atchison T. & S. F. Ry. v. Wichita Board of Trade, 412
U.S. 800 (1973). 414 U.S. 1035 (1973).

7 eee

rr

4

draft statement to be circulated as specified by Sec-
tion 102(2)(C) [of NEPA]”’ (371 F. Supp. 1306
(Gov. J.S. 39a)); it stated that the ‘‘new statement
must include an analysis of the underlying rate struc-
ture’s impact on the movement of recyclable commodi-
ties’’ (id.), as well as ‘‘an analysis of the effects of
the rate structure on investment in manufacturing
facilities which can make intensive use of scrap”’ (id.
(Gov. J.S. 40a)); it noted that ‘‘[a] comprehensive
study of the contribution to costs made by each cate-
gory of recyclable commodities and the primary goods
with which they compete will . . . probably be neces-
sary’’ (id. (Gov. J.S. 41a)); and it ordered the prep-
aration of a new final statement. Id.

While the claim of mootness thus appears to be friv-
olous, it would not, even if accepted, warrant the relief
sought by appellees—affirmance or dismissal of the
appeal. When a case becomes moot on appeal from
a judgment of a lower court, then ‘‘the established
practice of the Court . . . is to reverse or vacate”’
the judgment below. United States v. Munsingwear,
Inc., 340 U.S. 36 (1950). As the Court explained in
that case, citing numerous supporting precedents:

‘The established practice of the Court in dealing
with a civil case from a court in the federal sys-
tem which has become moot while on its way here
pending our decision on the merits is to reverse -
or vacate the judgment below and remand with a
direction to dismiss. That was said in Duke Power
Co. v. Greenwood County, 299 U.S. 259, 267, to be
‘the duty of the appellate court.’ That procedure
clears the path for future relitigation of the issues
between the parties and eliminates a judgment,
review of which was prevented through happen- —

5

stance. When that procedure is followed, the
rights of all parties are preserved; none is preju-
diced by a decision which in the statutory scheme
was only preliminary.’’ 340 U.S. at 39-40 (footnote
omitted ).

This rule is based on elementary fairness since a liti-
gant cannot properly. be subject to the effects of a
judgment and yet be deprived of its statutory right to
obtain appellate review.

In short, if this case were deemed moot by the Court,
then the only appropriate course would be to vacate the
District Court’s judgment with instructions to dismiss.
If the present controversy were academic or moot, the |
ICC should clearly not remain subject to an out-
standing obligation to prepare a new impact state-
ment in this proceeding, as it would be if this Court
affirmed the lower court’s judgment.

2. Appellees renew the same objections to this
Court’s jurisdiction that they previously raised in
their motions to dismiss. The railroads’ reply to ap-
pellees’ motions demonstrated the lack of merit in
these objections. R.R. Reply 1-15. The railroads be-
lieve that this Court has already rejected appellees’
arguments by noting probable jurisdiction in this ap-
peal. Thus, if the Court had harbored any doubts re-
garding its own jurisdiction, it would instead have
postponed jurisdiction to the merits. Nevertheless,
for the convenience of the Court, the railroads will

* See, ¢.g., Cramp v. Board of Public Instruction, 366 U.S. 934
(1961) ; United States v. Hancock Truck Lines, 324 US. 774, 776
(1945) (jurisdiction postponed on appeal from order of three-
judge court enjoining ICC order). See also Stern & Gressman.
Supreme Court Practice 237-38 (1969).

6

summarize their position on the issue while referring
the Court to the railroads’ earlier reply for a fuller
treatment of the question. .

Appellees’ position that this Court lacks jurisdiction
from an appeal of an order of a three-judge court
vacating an ICC order is based on a purported distine-
tion between actions to ‘“‘enjoin’’ ICC orders and all
other actions seeking directly to invalidate such orders.
Their contention, however, is inconsistent with the
legislative history of the statutes in question; it is
contradicted by decades of settled practice in this
Court; it is contrary to the views of commentators
and to the understanding of Congress; and the same
contention was fully briefed and flatly rejected by this
Court just a few years ago.

The legislative history of the pertinent statutory
provisions buttressed by years of consistent practice
in this Court shows that Congress intended from the
outset that orders of the ICC would be reviewable by
three-judge district courts and that orders of such
courts invalidating (or refusing to invalidate) the
ICC’s orders would be subject to direct appeal to this
Court. Furthermore, Congress intended these require-
ments to apply whenever direct review of ICC orders
was sought and without regard to whether the district
court’s own order was styled as an order ‘‘enjoining”’
the agency’s order, setting it aside, or invalidating it
in any other equivalent terms.

Since the adoption of the Urgent Deficiencies Act of
1913, orders of the Commission, except those for the
payment of money, have been reviewable by three-
judge district courts and orders of these courts have

st

~—

been directly appealable to this Court. That Act pro-
vided, in pertinent part:

‘‘No interlocutory injunction suspending or re-
straining the enforcement, operation, or execution
of, or setting aside, in whole or in part, any orders
made or entered by the Interstate Commerce Com-
mission shall be issued or granted . . . unless the
application for the same shall be presented to a
circuit or district judge, and shall be heard and
determined by three judges. ... An appeal may
be taken direct to. the Supreme Court of the
United States from the order granting or deny-
ing, after notice and hearing, an interlocutory in-
junction, in such ease... and upon the final hear-
ing of any suit brought to suspend or set aside,
in whole or in part, any order of said commission
the same requirement as to judges and the same
procedure as to expedition and appeal shall ap-
ply.’’ 38 Stat. 220 (emphasis supplied).

7

Plainly, under this language a suit such as the present
one, which resulted in setting aside orders of the ICC,
would require a three-judge district court and the dis-
trict court’s order granting or denying relief would be
subject to direct review in this Court.

In 1948, as part of the revision of Title 28 and its
enactment into positive law (62 Stat. 869), the Urgent
Deficiencies Act. provisions in pertinent part were
codified into Sections 2325 and 1253. The reviser’s
notes make it patent that there was no intent whatever
to alter the meaning, scope and purpose of the prior
provisions so far as concerns the three-judge court re-
quirement for review of ICC orders and the provision
for direct review in this Court.* Since the reviser’s

5The reviser’s note to Section 2325 discloses inter alia that it
derived from ‘‘title 28, U.S.C., 1940 ed., § 47, Oct. 22, 1913, ch. 32,
38 Stat. 220),’’ which is the Urgent Deficiencies Act, and that

.

8 4

q
i

notes are authoritative in the construction of the 1948 |

revision, * the construction here of Sections 2325 and ~

1253 is governed by the long-standing principle of
| United States v. Ryder, 110 U.S, 729, 740 (1884), that |
| ‘‘Ti]t will not be inferred that the legislature, in re-
vising and consolidating the laws, intended to change
their poliey, unless— such intention be clearly ex-
pressed.” . |

For years, the jurisdiction of this Court in cases
such as the present one has been accepted as settled by
this Court, by commentators, by Congress and by the
ICC itself. See, e.g., Chicago, M., St. P. & P. RR. v.
United States, 366 U.S. 745, 746 (1961); Schaffer
Transp. Co. v. United States, 355 U.S. 83, 87 (1957) ;
C. Wright, Federal Courts 191 (2d ed. 1970); Bur-
stein, ‘Judicial Review of ICC Orders,”’ 38 ICC Pract.
J. 174, 181 (1971). Appellees’ suggestion that this
represents no more than the casual ascumption of sev-
eral commentators is plainly unpersuasive. Indeed,
it appears that this Court only recently determined,
in the course of deciding Electronic Industries Ass’n

the provision for direct appeal to the Supreme Court in three-
judge cases was located in Sections 1253 and 2101 (which fixes
the time for appeal). The reviser’s note to Section 1253 states
pertinently that ‘‘[t]his section consolidates the provisions of
sections 47, 47a, 380, and 380a of title 28, U.S.C., 1940 ed. relating
to direct appeals from decisions of three-judge courts involving
orders of the Interstate Commerce Commission or holding State or
Federal laws repugnant to the Constitution of the United States.’’
Nothing in the reviser’s notes shows any intent whatever to vary
the scope of cases involving ICC orders to which the three-judge
requirement or direct appeal provisions apply.

6 United States v. National City Lines, 337 U.S. 78, 81, 82 (1949) ;
Stainback v. Mo Hock Ke Loc Po, 336 U.S. 368, 376 n.12 (1949).

7 —

9

v. United States, 401 U.S. 967 (1971), that there was
no jurisdictional difference between an action to en-
join and an action to set aside an ICC order.’

Appellees argue that no direct appeal to this Court
lies from the District Court’s order invalidating the
ICO’s orders, and requiring the Commission to under-
take proceedings specified by the lower court’s detailed
mandate, because no ‘‘injunction’’ has been issued.
SCRAP-EDF Br. 20-28; ISIS Br. 5-9; NARI Br.
22-24. But the force of this argument depends on
establishing the prior proposition that, for purposes
of this Court’s jurisdiction, the form of the District
Court’s own order—i.é., whether it is styled as an or-
der enjoining the agency order, setting it aside or in-
validating it in any equivalent terms—is determina-
tive. Appellees simply ignore the clear legislative his-
tory, the consistent practice of this Court, and the
Electronic Industries decision—all of which demon-
strate that no such distinction exists and that orders
invalidating ICC orders are reviewable here however
they may be couched.*®

7 While the Electronic Industries case was pending, this Court
directed the parties to submit supplemental memoranda on two
questions which in substance posed the issue whether a suit to
enjoin ICC orders is precluded by the availability of a suit to set
them aside and, if so, whether the latter suit would have to be
tried to a three-judge district court. Citing the legislative history
summarized above, all parties to the case submitted memoranda
agreeing that there was no pertinent distinction between actions
to enjoin and actions to set aside ICC orders and that such actions
were in both instances subject to the three-judge court require-
ment. This Court then unanimously affirmed the District Court’s
judgment by an eight-to-zero vote, necessarily acknowledging its
jurisdiction over the appeal.

8 Appellees’ argument is not unlike an argument which they ad-
vanced, and this Court rejected, when appellees sought to avoid

" '

“2 Pg 6 IO ROR OP, FS

ES

Appellees also argue that at the very least, this
Court’s jurisdiction on direct appeal is limited to situ-
ations in which the lower court’s order had ‘‘a neces-
sary, coercive impact on what some party could or
could not do, or was accompanied by the court’s grant-
ing, or refusing to grant, an order which would have
coerced directly some action or inaction of a party.’
ISIS Br. 7 (emphasis-in original) ; see also SCRAP-
EDF Br. 26-27. A short answer to appellees’ argu-
ment is that the District Court’s order has an unmis-
takable ‘‘coercive impact’’ on the ICC. See pp. 3-4,
above. Moreover, none of the cases cited by appellees
(ISIS Br. 6-7) to show that ‘‘coercion”’ is the touch-
stone of Supreme Court jurisdiction even remotely
suggested the rationale now proffered by appellees.
Finally, this Court has in fact entertained an appeal
from the decision of a three-judge district court under
28 U.S.C. § 1253 that itself did no more than determine
that certain ICC orders were unreviewable. Frozen
Foods Express v. United States, 351 U,S. 40 (1956).°

review here of the District Court’s preliminary injunction issued
in Jund 1973. Because the injunction was captioned ‘‘temporary
restrathing order,’’ appellees argued that this Court had no juris-'
diction to review it. E.g., memorandum of SCRAP-EDF in oppo-
sition to stay, pp. 2-3. The railroads responded, consistent with
the precedents, that the District Court’s order was clearly a pre-
liminary injunction (however it might be denominated) because
it was issued after a hearing and without the ten day limit appli-
cable to TRO’s. This Court not only issued the stay but there-
after accepted jurisdiction and vacated the District Court’s order.
414 U.S. 1035 (1973).

® Since the ICC orders which the three-judge district court held
unreviewable were themselves characterized by this Court as
‘‘declaratory,’’ 351 U.S. at 44, this Court thus assumed jurisdic-
tion of an appeal under 28 U.S.C. § 1253, which would determine
only whether a three-judge district court’s ‘*non-coercive’’ refusal
to review a ‘*non-coercive’’ ICC order was appropriate. '

—

11

Appellees rely heavily upon decisions construing the
statutory provisions involving injunctions against
unconstitutional statutes.” Both the legislative devel-
opment of these latter provisions and the policies
underlying them are different from those relating to
the review of IOC orders. Whereas the legislative
history of the provisions relating to ICC orders shows
that they were designed to embrace actions to invali-
date ICC orders however thé actions might be denom-
inated, the legislative history of the provisions relating
to unconstitutional statutes shows that they have always
been couched to embrace only actions seeking injunc-
tive relief. See, e.g., 36 Stat. 557; Kennedy v. Mendoza-
Martinez, supra, 372 U.S. at 154-55.

Lastly SCRAP-;EDF and NARI suggest that a re-
strictive interpretation of the direct review statute
relating to ICC orders will lighten this Court’s case-
load. SCRAP-EDF Br. 24; NARI Br. 24. However,
even this policy argument has heen vitiated by P.L. 93-
584, 88 Stat. 1917 (Jan. 2, 1975), which transfers initia]
jurisdiction over suits to enjoin or suspend ICC orders
to the courts of appeals, but which specifically pro-
vides that suits already filed shall proceed under
“existing” law. The legislative history of the recent

amendments shows clearly that Congress understood |

that under ‘existing’ law decisions of three-judge
courts reviewing ICC orders were appealable directly
to this Court:

‘Since 1913, with the adoption of the Urgent
Deficiencies Act, orders of the Commission—except

F.g., Public Service Comm’n v. Brashear Freight Lines, Inc.,
306 U.S. 204 (1939); Mitchell v. Donovan, 398 U.S. 427 (1970) ;
Kennedy vy. Mendoza-Martinez, 372 U.S. 144 (1963); Gunn vy.
University Committee to End the War, 399 U.S. 383 (1970) ;
Phillips v. United States, 312 U.S. 246 (1941); Rorick v. Board

of Comm’rs, 307 U.S. 208 (19389).

/

——

12

; those calling solely for the payment of money—
“have been reviewed in the United States district :
courts by panels of three judges, at least one of IE
‘whom must be a judge of the court of appeals for
the circuit in which the district is located. 28
U.S.C. §§ 2321, 2325. Appeals from three-judge
courts lie directly to the Supreme Court as a matter
of rig H. R. Rep. No. 93-1569, 93rd Cong., 2d
Sess. 2 (1974).

Sec also R.R. Reply 4."

Il, THE DISTRICT COURT LACKED JURISDICTION TO REVIEW
THE COMMISSION’S GENERAL REVENUE ORDERS.

In their opening brief, the railroads demonstrated
that the long-standing rule establishing the unreview-
ability of general revenue orders precluded judicial
review of the Commission’s orders in this case, and that
NEPA created no exception to this rule. R.R. Br. 21-
30. They further pointed out that despite the even divi-
sion of this Court over the reviewability of general
revenue orders when challenges to such orders were
directed at Commission findings of general revenue
need applicable to all rates,’ the Court soon thereafter

11 Finally, while the clear propriety of review in this Court
makes the point academic, it should be. noted that appellees would
not on any view of the matter be entitled to dismissal of the ap-
peals as they request. SCRAP-EDF Br. 80; ISIS Br. 46; NARI
Br. 54. Even if this Court decided that the District Court’ s order
here was not directly appealable to this Court, the usual remedy
would be to ‘‘vacate the judgment below and remand the case’’
so that the District Court could enter a new order and afford
appellants the opportunity to take a timely appeal to the Court of
Appeals. Mitchell v. Donovan, supra, 398 U.S. at 431-32 & n.4.

12 Alabama Power Co. v. United States, 316 F.Supp. 337 (D.
D.C. 1970) and Atlantic City Elec. Co. v. United States, 306 F.
Supp. 338 (S.D.N.Y. 1969), both aff’d by an equally dwided
Court, 400 U.S. 73 (1970). ’

—— ee

= pA ee ee aed

13

unanimously affirmed a decision sustaining the dismis-

sal of a suit challenging a general revenue order where

the attack was directed not to revenue-need findings
but to the application of the general increase to par-
ticular categories of rates. Electronic Industries Ass’n
v. United States, 401 U.S. 967 (1971).

The present case is essentially identical to the latter
situation. The appellees’ claims concern the Commis-
sion’s treatment of particular categories of rates appli-
cable to recyclable commodities, just as the claims in
Electronic Industries concerned the Commission’s
treatment of particular categories of rates applicable
to electrical products. Electronic J ndustries therefore
is dispositive of this case on the Jurisdictional issue,
whether or not the Court might otherwise decide to re-
examine the general rule followed in the district courts
for many years as it was presented in Atlantic City and
Alabama Power. Tn light of this.controlling precedent,
it is nothing short of extraordinary that SCRAP-EDF
and ISIS fail even to cite the Electron ic Industries case
in their briefs, and that NARI casually lists it in a
string of citations it claims are “‘inapposite.”” NARI'
Br. 26.

Appellees likewise fail to consider the underlying

~ Teasons for the rule, which include an unwillingness of

courts to interfere at what is merely an intermediate
stage in the rate-making process, the availability of fur-
ther remedies focusing upon individual rates, and the
dangers of disruption and inconsistency that would
result from review of general revenue orders. Indeed, .

18 They do not challenge the conclusions of the Commission with
respect to rates on nonrecyclables that went into effect in October
1972. The specific categories of rates of interest to appellees were
defined in the tariffs involved. See Ex Parte No. 281, 346 I.C.¢C.
88, 91 (1973).

4

this very case underscores the soundness of the general
rule, for there has been no determination as to the just-
ness or reasonableness of any particular rates on recyel- |
ables, and review of the Commission’s orders at this |
juncture would cause the very interference with the |
administrative process that the rule was designed to
avoid.

In the present case, the lower court’s intervention,
if sustained, would require the Commission to under-
take elaborate and time-consuming tasks. As noted
above, for example, the lower court would insist upon
‘can analysis of the effects of the rate structure on in-
vestment in manufacturing facilities which can make
intensive use of scrap.”? 371 F. Supp. at 1306 (Gov.
J.S. 40a). It would also require ‘ [a] comprehensive
study of the contribution to costs made by each category
of recyclable commodities and the primary goods with
which they compete.”’ Id. (Gov. J.S. 41a). Studies of
the scope and detail apparently envisaged by the Dis-
trict Court are extraordinarily complex and have no
proper role in a general revenue proceeding, which is
in substance designed to provide the railroads with
prompt revenue relief, subject to subsequent challenges
to individual rates that may be initiated by interested
parties.

The impact of such judicial intervention at the gen-
eral revenue stage not only complicates and delays the
administrative process, but it also poses a threat of
devastating delays for the railroads in obtaining essen-
tial revenue relief. Once this judicial intervention is
permitted, an endless succession of studies will routinely
be demanded from the Commission in the course of a
general revenue proceeding. These demands will in
turn inevitably result in substantial delays in desper-

|

SLR SIIE ne POLED E PEPIN AA BOLO Dt GE CAT a

‘4

15

ately needed rate increases."* The railroads in this
country, faced with immense continuing cost increases
in fuel, labor, materials and other cost elements, simply
cannot carry the burden of significant additional delays
in obtaining rate relief through general revenue cases.
Given the existence of individual statutory proceedings
in which a just and reasonable rate can be determined,
taking account of all appropriate factors including
environmental ones, there is no justification for in-
stituting judicial review of general revenue orders.
In arguing for jurisdiction, appellees’ briefs mis-
state the railroads’ position and their arguments are,
in any event, unpersuasive. SCRAP-EDF and ISIS
erroneously contend that the railroads’ argument is
that a party seeking enforcement of the Commission’s -
duty to prepare an impact statement in a general
revenue proceeding ‘‘must first seek separate impact
statements, rate-by-rate, in administrative reparation
proceedings under 49 U.S.C. §13(1), before he can
assert any claim in court.’””’ SCRAP-EDF Br. 31.
See also ISIS Br. 14. The railroads are not making
and have never made such an argument. Rather the
railroads have asserted, as is indisputable, that the just-
ness and reasonableness of particular rates on recyel-
ables can only be resolved in individual proceedings,
and that it is in these proceedings that environmental
determinations respecting recyclables should be re-
viewed. To the extent that the Commission may rely
upon an earlier impact statement in support of its
conclusion in a Section 13 proceeding, such a statement

Such delay inescapably results both from district court in-
junctions, however mistaken—such as the lower court’s two earlier
injunctions m this case—and from the Commission’s inability to
complete general revenue proceedings expeditiously because of
court-imposed requii ments.

16

would be reviewable so far as it was pertinent. If
instead the Commission chose to prepare and rely upon
a new impact statement, the earlier statement would
be either supplementary or irrelevant depending on
the nature of the Commission’s undertaking.

ISIS’ brief (p. 16) echoes the decision below in
arguing that the earlier cases establishing the general
rule against reviewability of general revenue orders
should not apply in NEPA cases. But the broad —
language of this Court’s SCRAP opinion emphasized
that nothing in NEPA or its legislative history re-
flected any congressional intent to alter the rule that
the courts may not ‘‘suspend’’ rates by injunction
when the Commission has chosen not to do so or when
the statutory suspension period has expired. 412
U.S. 694-95. Similarly, nothing in NEPA or its leg-'
islative history bespeaks any intention to overturn the
settled rule against judicial review either of suspension
orders directed to individual rates or of general rev-
enue orders directed to rates as a whole.

ISIS’ brief (pp. 11-12) also relies upon the fact that
the Government in Alabama Power and Atlantic City
took the position—contrary to settled district court
authority—that the revenue need findings in general
revenue orders should be directly reviewable.”
However, the Government’s brief in those cases (p. 17)
also stated that ‘“‘the United States agrees with the
Commission’’ that the complaints ‘‘do not state a claim
for direct judicial review insofar as they challenge

15Jn explaining its position the Government’s brief (p. 18)
argued in part that such revenue need findings ‘involve no past
or potential consideration of particular commodities’? and that
the ‘‘revenue decision . . . would not be considered further in any
potential future proceeding challenging particular rates.’’

17

the Commission’s preliminary treatment of rates on
particular commodities.”’

Whatever else may be said, it is perfectly plain
here that appellees’ attacks do focus on particular com-
modity rates—namely, rates on recyclables—and do

* not challenge revenue need findings applicable to all
rates. Any considerations bearing on the proper level
of recyclable rates, including environmental considera-
tions, can be urged in individual complaint proceed-
ings, ** and only in such proceedings can such rates be
definitely fixed. Accordingly, the railroads submit
that Electronic Industries governs this case and war-—
rants reversal of the lower court’s decision on juris-
dictional grounds.

III, ON THE MERITS OF THE CASE, THE LOWER COURT ERRED
BY SUBSTITUTING ITS JUDGMENT FOR THAT OF THE
RESPONSIBILE AGENCY.

In their opening brief, the railroads coutended that
an examination of the Commission’s elaborate and
detailed impact statement would show that the Commis-
sion had given environmetital considerations the ‘“‘hard
look’’ required by NEPA and that, even assuming ¥
substantive review of the impact statement was appro-
priate, the lower court’s criticisms were ill-founded and
went far beyond the permissible scope of review. R.R.
Br. 34-48. The railroads’ position represented no more
than a particular application of well-settled principles
of administrative law predicated on the necessity of

16 The Commission's own subsequent decisions both in general
revenue cases and in other types of proceedings show that it is
fully prepared to reconsider environmental claims directed to re-
cyclables as new cases arise and new information becomes avail-
able. See pp. 24-27, below.

a,

achieving a proper allocation i functions between
expert agency and reviewing court.

In response, appellees take two different tacks. On
the one hand, they attempt to rationalize the District
Court’s decision which ignored tha basic principles
of judicial review by engaging virtually in de novo
consideration of matters entrusted to agency judgment.
On the other hand, they seek to insulate the lower
court’s decision from the scrutiny of this Court on the
remarkable ground that the lower court’ § review of the
ICC’s impact statement cannot be overturned unless it
is found to be ‘‘clearly erroneous.”’ Fed. R. Civ. P.
52(a). See SCRAP-EDF Br. 33-64; ISIS Br. 16-44;
NARI Br. 26-51.

1. The underlying question which divides the rail-
roads and appellees—and which has caused, consider-
able confusion and uncertainty in the lower federal
courts—is the appropriate scope of judicial oversight
of an agency’s preparation of an environmental impact
statement. The railroads have urged that the scope of
such review is and should be highly limited, and they
have brought to this Court’s attention well-reasoned
opinions in the lower federal courts which | have
expressed this view. E.g., National Heliwm Corp. v.
Morton, 486 F.2d 995 (10th Cir. 1973), cert. dened,
416 U.S. 993 (1974); City of New York v. Untted
States, 344 F. Supp. 929 (E.D.N.Y. 1972) (Friendly,
J.).

Appellees have cited other cases adopting vary-
ing formulations of the proper scope of review in lan-
guage appellees apparently find helpful to their cause."

17 Curiously, the SCRAP-EDF brief (pp. 35, 46, 68) and ISIS
brief (pp. 19-20) rely heavily on National Helium Corp. v. Mor-
ton, supra, although that case approved the very standard which

19

SCRAP-EDF Br. 36-41; ISIS Br. 17-20; NARI Br.
46-47. Yet the SCRAP-EDF brief concedes (p. 45)
that ‘‘ the adequacy or inadequacy of an environmental
impact statement is not a legal question that can be
decided in vacuo.”” Whether one characterizes the
legitimate role of a reviewing court in passing on an
impact statement as assuring that the agency took a
“hard look”’ at environmental factors,” that the agency
made a ‘‘good faith’’ effort to comply with NEPA’s
requirements,” or that the agency’s efforts be consid-
ered in light of a ‘‘rule of reason,” none of these
rubrics should permit a reviewing court in eases involy-
ing NEPA to reconsider, revise, and reject the agency’s
expert evaluation of the evidence before it and its
expert judgments. If instead the reviewing court’s
function is circumscribed by the traditional limitations
imposed on judicial review of agency action, then the
District Court in this case could not properly invalidate
the ICC’s impact statement in Ex Parte No. 281,

As the railroads showed in detail in their opening
brief, the Commission’s impact statement represented
a prodigious effort and the result was a detailed and
carefully considered document. R.R. Br. 9-14. In 150
pages of analysis, the Commission considered each of
the related topics specified by the statute. It examined
the nature of the railroad rate structure and treated in

the railroads have urged upon this Court: ‘‘an objective good
faith effort to comply with the statutory procedural require-
ments.’’ 486 F.2d at 1001.

"8 National Resources Defense Council v. Morton, 458 F.2d 827,
833 (D.C. Cir. 1972).

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

0 Scientists’ Institute for Public Information v. AEC, 481 F.2d
1079, 1092 (D.C. Cir. 1973).

6

20

depth the question whether freight rate increases would
have any effect on the movementiof recyclables. Before
issuing its final statement, it received and reviewed
comments from other federal agencies and the public at
large.
Appellees’ criticisms of the ICC’s efforts, like the
‘Jower court’s criticisms, represent nothing more than
expressions of their substantive disagreement with the
ultimate conclusion reached by the Commission. For
example, appellees recite at some length the critical
comments made of the Commission’s draft impact
tatement by other federal agencies (SCRAP-EDF Br.
9-54; ISIS Br. 26-28; NARI Br. 47-51) and chide the
ommission for failing to heed them.” But these objec-
tions are simply particular substantive arguments that
the rate changes will adversely affect the environment
or demands for still further studies or analyses. Since
the\ Commission believed that the record amply sup-
its conclusion that there would be no environ-
impact, appellees’ complaints are merely
anot er way of saying that the Commission was re-
to alter the result it reached after a full consid-
oe the environmental facts and issues before it.

failure to consider the underlying rate structure
appellees’ claims that recyclable rates were
natorily high and that their cumulative impact
consideration. SCRAP-EDF Br. 58-64;
ISIS Br, 32-34; NARI Br. 49-50. However, the-Gom-
mission was entitled to devote principal attention to

21Tt is to be noted that the United States is before this Court
supporting the ICC’s environmental impact statement, and, of
course, represents ‘he combined interests of its agencies.

ee

the particular federal ‘‘action’”’ under consideration—
namely, the impact (if.any) of the particular general
increases on recyclables. involved in Ex Parte No. 281
—since this focus is what NEPA’s language contem-
plates. Moreover, the Commission in fact did con-
sider the overall rate structure both in evaluating the
cumulative impact of. the ‘rate changes here involved
and in discussing charges that the rate structure dis-
criminated against recyclables. See R.R. Br. 47-48,

Appellees’ criticisms were to be expected in light of
the fact, squarely recognized ‘by one court, that it is
“doubtful that any agency, however objective, however
sincere, however well staffed and however well financed,
could come up with a perfect ‘environmental impact
statement ....’’” But the validity of an impact state-

ment cannot be made to depend onan agency’s ability to .

anticipate and refute every possible post hoc attack that
can be leveled at it. If there are:to be any sensible
limits on the scope of review of impact statements pre-
pared by federal agencies pursuant: to N EPA, it is
apparent that this Court should reject the lower court’s
de novo consideration of the Commission’s éxtensive
and thorough impact statement. 4

This Court has itself recognized that: the “‘federal
agencies . .. have the primary responsibility for the
implementation of NEPA.”’ United States v. SCRAP,
supra, 412 U.S. at 694. The lower court’s action repre-
sents a rejection of that principle; if allowed to stand,
it will not only npset the intended division of resposi-
bility between federal agencies and reviewing courts,
but it will also be an open invitation to any party dis-

2 Environmental Defense Fund v. Corps of Engineers, 470 F.2d
289, 297 (8th Cir. 1972), cert. denied, 412 U.S. 931 ( 1973)...

——an

~

22

satisfied with the conclusion reached by an agency in
an impact.statement to litigate his grievance in a fed-_
eral court. There will be no dearth of litigants able to
specify one more study or ‘‘comprehensive analysis’’
that, in their view, constitute a prerequisite to an ade- .

quate impact statement. And inevitably, district courts -. |

will continuously expand the volume of evidence re-
quired in the preparation of impact statements. In
light of the Commission’s well-reasoned and informed
analysis, there is no basis for sanctioning the ex-
pansive standard of judicial review urged by appellees
and for substituting the lower court’s judgment for
that of the Commission.

2. Ironically, while SCRAP-EDF and ISIS strenu-
ously urge this Court to take an unjustifiably expan-
sive view of the scope of the lower court’s oversight of
the Commission’s impact statement, in the next breath
they seek to immunize the lower court’s decision from
this Court’s scrutiny by making the novel and unwar-
ranted assertion that the lower court’s decision can be
overturned only if this Court finds it to be ‘‘clearly
erroneous.’?’ SCRAP-EDF Br. 45-48; ISIS Br. 20-23.
Appellees’ misconception of the scope of this Court’s
review of the lower court’s decision is consistent with
their misconception of the scope of the lower court’s
review of an agency’s impact statement: in each
instance the appellees proceed from the mistaken
premise that a three-judge court reviewing an ICC
order is a species of trial court hearing evidence and
making independent findings of fact, when in truth it is
essentially an appellate tribunal exercising a conven-
tional limited review of agency action.

It is well settled that suits under the Urgent Defici-
encies Act to set aside an order of the Commission are

SRS

Loy
Sak

RAR ene ee Be

/

“t

/

_ Opposition to stay, pending judicial review.

23

proceedings for judicial review upon the record before
the Commission and are not trials de novo.” It is
equally clear that this Court in reviewing such decisions
of three-judge courts has accorded their determina-
tions no special deference.* Rather, this Court has
focused directly on the action of the Commission, often
without even mentioning the reasoning or determina-
tions of the three-judge court.”

The proceedings in the District Court corresponded
to this well-established practice and understanding. No
trial was held, no witnesses were heard, and no detailed
findings of fact were made.” Rather, the District

Court simply reviewed a record made before the agency -

and transmitted to the District Court, and its judgment
depended not on evaluating the credibility of witnesses

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

- U.S. 314, 320 (1914) ; Louisville & Nashville R.R. v. United States,
245 U.S. 463, 466 (1918); Lang Transp. Corp. v. United States,
75 F.Supp. 915, 922 (S.D. Cal. 1948); Edwards Motor Transit
Co. v. United States, 201 F.Supp. 918, 920-21 (M.D. Pa. 1962).
The fact that under the recent amendments to the judicial code
such suits are now required,to be brought in the courts of appeals
underscores the appellate Character of the courts’ review. See

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

SCRAP-EDF Br. 2a-3a.

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

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

~United States v. Dixie Highway Express, Inc., 389 U.S. 409 (1967) ;

United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515
(1946) ; ICC v. Inland Waterways Corp., 319 U.S. 671 (1943).

_ % B.g., ICC v. Mechling, 330 U.S. 567 (1947) ; ICC v. J-T Trans-
portation Co., 368 U.S. 81 (1961).

26 The affidavits submitted by the railroads were directed against
preliminary injunctive relief and were essentially similar in char-
acter to the affidavits that are normally filed in courts of appeals
or in this Court in connection with an ‘application for stay, or

—

~

24

but on reviewing the same agency record and impact
statement that is before this Court.” It-is manifestly.
unsound to suggest that this Court must accord the )
District Court’s decision the deference accorded toa ,
trial court’s finding: any issue that the District Court
was entitled to consider is equally open to review in
this Court. |g
3. Scattered throughout the brief of SCRAP-EDF 3
are references to the Commission’s environmental
impact statements prepared in connection with Ez
Parte Nos. 270 and 295. They cite these statements to
support a variety of arguments such as their assertions
that the Commission reached the wrong conclusion in
Ez Parte No. 281 (SCRAP-EDF Br. 9-13), that it
should have conducted its preparation of its impact
statement in Ex Parte No. 281 differently (id. 57-64),
\ and that, since the Commission has “cured”’ the défects
of its earlier impact statement in its subsequent impact
statements, the case may somehow be moot. Id. at 19-
20, 64, 78. What EDF-SCRAP’s brief fails to men-
tion are the critical findings in both the later impact

27 While the briefs of SCRAP-EDF (p. 46) and ISIS (p. 21,
n.18) point to Environmental Defense Fund v. Corps of Engi-
neers, 492 F.2d 1123, 1137 (Sth Cir. 1974), as supporting their
view, that case involved ‘‘an extensive trial on the merits’’ (492
F.2d at 1132) on plaintiffs’ motion to enjoin construction of a
navigation project, where the trial court, after hearing substan-
tial testimony from live witnesses, made ‘‘detailed individual find-
ings.’’ Id. Appellees’ reliance on such precedents as Umted
States v. United States Gypsum, 333 U.S. 364, 394 (1948) and
Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271,
274-75 (1949) (see SCRAP-EDF Br. 46-48; ISIS Br. 21-22),
hardly merits a response. These cases, many of them patent or
antitrust actions, involved lengthy trials before federal trial courts
which made elaborate findings on the basis of evaluation of the
eredibility of live witnesses and extensive documentary evidence.

\
\

{

_ rr rs
:

f ‘

“4 '

:

statements that, just as the Commission had concluded
in Ez Parte No. 281, the environmental impact of in-
‘ creases in rates on recyclables will be ‘‘negligible’’ or
“insignificant.” Ea Parte No. 270 (Sub. Nos. 5 and 6),
; Final Environmental Impact Statement p. i (1974);
| Ex Parte No. 295 (Sub. No. 1) Final Environmental
i Impact Statement p. i (1974).

From the SCRAP-EDF presentation of the conclu-
sions the Commission reached in its later impact state-
ments, a casual reader would never know that the ,
: Commission in fact emphatically reaffirmed rather
; than undermined, the conclusions it had reached in
_ ° Ea Parte No. 281.: SCRAP-EDF’s brief: refers only
: to truncated portions of the Commission’s conclusions
in its Et Parte No. 295 impact statement. For exam-
ple, the brief makes the following statement, with
‘supporting evidence,’ in an attempt to suggest that
the described impact was substantial: ;

‘‘In the environmental impact statement prepared
in Ex Parte 295, ... the Commission estimated

that a 3 per cent rail freight increase on goods’ ~

being shipped for recycling—rather than having

no significant environmental impact, as claimed

in the Commission’s previous boilerplate ‘“find-

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

mean the following with respect to non-ferrous
4 metals alone: .

‘“‘[AJn estimated [additional] 3,097 tons of
metal will be annually required from virgin
ores. An increased yearly power consumption
of 21.8 million kilowatt hours ean be expected,
with an increase in pollutant emissions of about
15 tons per year.”” SCRAP-EDF Br. 10-11
(citations omitted). '

26

In. context, one gets an entirely different impres-
sion of what the Commission said in Ex parte No. 295:
‘“The principal findings of the study are these:

The proposed 3 percent rate increase will do noth-
ing to stimulate recycling. On the contrary, any
perceivable effects will involve some diminution of
the rate at which secondary commodities are re-
claimed. However, the quantitative effects of a
3 percent rate increase will be very small, in all
cases only a fraction of 1 percent of the presently -
recycled volume of any commodity. As a result
the environmental impacts in terms of increased
consumption of resources (including energy) and
of pollution, are expected to be insignificant.

Specifically, in regard to non-ferrous metals the
decrease in scrap consumption is expected to be
about 2/100 of 1 percent of the present volume,
as a result of which an estimated additional 3,097
tors of metal will be annually required from virgin
ores. An increased yearly power consumption of
21.8 million kilowatt hours ‘can be expected, with
an increase in pollutant emissions of about 15 tons
per year.’’ Ez Parte No. 295 (Sub. No. 1), Final
Environmental Impact Statement pp. xiii-xiv
(1974) (emphasis added). , -

This'example is characteristic of SCRAP-EDF’s use
of the Commission’s environmental impact statement
in Ex Parte No. 295.”

28 The excerpts on pages 10-13 of SCRAP-EDF’s brief imply,
for example, that raising rail rates on recyclables will cause a sub-
stantial decrease in scrap reclamation in general and in recycled
iron and steel scrap in particular. In fact, the Commission con-
eluded that in both the short and long term any adverse impact of
the increase in freight rates at issue would be insignificant (Ez
Parte No. 295 (Sub. No. 1), Final Environmental Impact State-
ment 4-1, 4-4 (1974)), and that the decrease in recycled iron and
steel scrap amounts to less than two-tenths of one percent. Id.
at xiv.

i

27

It is unnecessary to belabor this point, which is sim-
ple and straightforward: SCRAP-EDF’s selective
reading of the Commission’s impact statements in Ez
Parte Nos. 270 and 295 does not accurately represent
their actual findings and conclusions, These extensive
studies in fact reiterate the basic conclusion which the
Commissiou reached in Ez Parte No. 281: that a lim-
ited increase in railroad freight rates on recyclables—
as part of general rate increases applicable to all com-
modities including those allegedly in competition with
the recyclables—would not significantly affect the qual-
ity of the human environment.

‘CONCLUSION

For the reasons stated above and in the railroads’

opening brief, the decision of the lower court should
be reversed.

Respectfully submitted,
T. A. MILueR CHARLES A. Horsxy
Southern Pacific MicHAEL Boupin
Transportation Co. WALTER HELLERSTEIN
One Market Street 888 Sixteenth St., N.W.

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

94105 Epwarp A. Kater
ALBERT B. Russ, Jr. 1600 Three Penn Center
Seaboard Coast Line Philadelphia, Pa. 19102
Railroad :
P. O. Box 27581 “— pe ogee
Richmond, Va. 23261 “hee:
aeons sopra Washington, D. C. 20013
‘March 1975 _ Attorneys for Aberdeen
and Rockfish Railroad
Company, et al.

I eee” Sen

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0458%3A15. Public record. Not legal advice.