# Opposition Brief — Aberdeen & Rockfish R. Co. v. Students Challenging Regulatory Agency Procedures (SCRAP) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0458%3A20 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1975 - **Citation:** 422 U.S. 289 ## Text N APR 15 19] l MICHAEL RODAK, Ja. IN THE ~ Supreme Court of the United States October TrRM, 1974 Nos. 73-1966 and 73-1971 UNITED STATEs oF AMERICA AND INTERSTATE COMMERCE Commission, A ppellants Vv. STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES ( S.C.R.A.P.) er AL, Appellees ABERDEEN AND ROCKFISH RaILRoap CoMPany, ET AL, Appellants Vv. STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES ( S.C.R.A.P.) er AL, Appellees On Appeal from the United States District Court for the District of Columbia- OPPOSITION OF APPELLEES NATIONAL ASSOCIATION OF RECYCLING INDUSTRIES, INC. (NARI), COMMER- CIAL METALS CO., I. v. SUTPHIN CO. AND BROS. & CO., INC. TO “SUGGESTION OF MOOTNESS” FILED BY COUNSEL FOR EDF ET AL. Epwarp L. MErrican Attorney for Appellees NARI et al. 888 17th Street, N.W. Washington, D. C. 20006 April 1975 7 Press or Byron S. ApAMs PRINTING, Inc., WasHINGTON, D. Cc. TABLE OF CONTENTS Page I. This Case, Which Raises Important Threshold Jurisdictional Issues And Issues of Great Con- tinuing Interest Under The National Environ- mental Policy Act And Other Related Federal Statutes, Is In No Sense Moot ....... Sas oun s 2 II. It is Absolutely Erroneous And Improper For EDF To Suggest, Without Any Support In The Record Before The Court, That The Very Limited Recent Actions Taken By The Commis- sion In Ex Parte 310 Have ‘‘Radically Changed ... The Relationship Between Rates For Scrap And Primary Materials.” ...................- 8 CONCLUSION .... 0... eee. 10 TABLE OF CITATIONS CasEs: Eagles v. United States, 329 US. 304, 67 S.Ct. 313 GRRE) esti hk seen ene veusp eves npeade.endeeet., 2 Federal Trade Commission v. Goodyear Tire & Rubber Co., 304 U.S. 257, 58 S.Ct. 863 (1938) 22.2.0... 2 Gunn v, University Committee To End The War, 399 U.S. 383, 391, 90 S.Ct. 2013 (1970)... ee, 5 Hutcherson vy. Lehtin, 399 U.S. 522, 90 S.Ct. 2238 (ADO9) neu ne an Sees cen sees vedeiceeace,. 5 Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.E.d.2d 378 CT90O) is caesieg ops avseudunosces cu 5 Public Service Commission of Missouri v. Brashear Freight Lines, Inc., 306 U.S. 205, 59 S.Ct. 480, 83 L.Ed. 608 (1939) 20... 4,5 Rockefeller v. Catholic Medical Center, 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806 (1970) ......0000., 5 Southern Pacific Terminal Company v. Interstate Com- merce Commission, 219 U.S. 498 (1911) .......... 2,8 United States v. T rans-Missouri Freight Association, 166 U.S. 290, 308... 2 IN THE Supreme Court of the United States OcToBER TERM, 1974 Nos. 73-1966 and 73-1971 UNITED STATES OF AMERICA AND INTERSTATE COMMERCE CoMMISsSION, Appellants Vv. STUDENTS CHALLENGING REGULATORY AGENCY - PRocepures ( S.C.R.A.P.) er an, A ppellees ABERDEEN AND RockrisH RatLroap CoMPANY, ET AL, Appellants Vv. STUDENTS CHALLENGING REGULATORY AGENCY PROCEDURES ( S.C.R.A.P.) Er an, A ppellees On Appeal from the United States District Court for the District of Columbia OPPOSITION OF APPELLEES NATIONAL ASSOCIATION OF RECYCLING INDUSTRIES, INC. (NARI), COMMER. CIAL METALS Co., I. v. SUTPHIN CO. AND FRANKEL BROS. & CO., INC. TO “SUGGESTION OF MOOTNESS” FILED BY COUNSEL FOR EDF ET AL. Appellees NARI, Commercial] Metals Co. of Dallas, Texas, I. V. Sutphin Co. of Cincinnati, Ohio and Frankel Bros. & Co., Ine. of Rochester, New York hereby oppose the “Suggestion of Mootness” filed here- in on April 8, 1975, approximately two weeks after ora] Carre 7 eee : rs 2 argument and submission of these appeals, by counsel for the Environmental Defense Fund (EDF), and in support of this opposition, these appellees respectfully state. 1. THIS CASE, WHICH RAISES IMPORTANT THRESHOLD JURISDICTIONAL ISSUES AND ISSUES OF GREAT CONTINUING INTEREST UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT AND OTHER RE- LATED FEDERAL STATUTES, IS IN NO SENSE MOOT. In Southern Pacific Terminal Company v. Interstat Commerce Commission, 219 U.S. 498 (1911), this Court ruled that even in a case where a challenged order of the: Interstate Commerce Commission has actually expired, a pending litigation challenging the legality of that order, as rendered by the Commission, is not moot. At page 515, this Court stated : ‘*In the case at bar the order of the Commission may to some extent (the exact extent it is unneces- sary to define) be the basis of further proceedings. But there is a broader consideration. The ques- tions involved in the orders of the Interstate Com- merce Commission are usually continuing (as are manifestly those in the case at bar) and their con- sideration ought not to be, as they might be, de- feated by short term orders, capable of repetition, yet evading review, and at one time the Govern- ment and at another time the carriers have their rights determined by the Commission without a chance of redress.’’ See also: United States v. Trans-Missouri Freight Association, 166 U.S. 290, 308; Federal Trade Commis- sion V. Goodyear Tire & Rubber Co., 304 U.S. 257, 58 S.Ct. 863 (1938) ; Hagles v. United States, 329 U.S. 304, 67 8.Ct. 313 (1946). aaa ’ ANOLON 88 En OBR ; 3 ' \ ‘ , In the instant case, the challenged orders of the Inter- : state Commerce Commission are plainly continuing orders; they have in no manner expired, And, under the judgment of the district court, they will be the sub- ject of further proceedings upon remand to the Com- mission, if this Court affirms or dismisses the pending appeals for lack of direct appellate jurisdiction; or if this Court fashions a final judgment of its own which remands the case to the Commission for further pro- ceedings, Insofar as shippers of recyclable commodities repre- sented by NARI herein are concerned, the continuing, oppressive nature of the challenged orders. is clear. ' Since the summer of 1973, they have been bearing the entire force of the Ex Parte No. 281 rate increase for the tr4nsportation of recyclable commodities licensed by the Commission’s orders, challenged herein as pat- ently illegal under the National Environmental Policy Act (NEPA) and related federal statutes.’ Those in- creased rates have forced these shippers to pay an additional $9 million per year in transportation charges, and those huge additional charges will con- tinue to be collected each year in the future unless this Court rules that the Commission’s orders were viola- tive of NEPA and that same cannot form a lawful basis for continuing collection. How, therefore, can anyone seriously contend that a case of this nature is moot? The pending “Suggestion _ of Mootness”’ does not even attempt to consider the last mentioned facts. Instead, it simply asserts, in the *The Solid Waste Disposal Act, 42 U.S.C. § 3251 et seq., as amended by The Resource Recovery Act, 42 U.S.C. § 3253a. The Rail Reorganization Act of 1973, Public Law 93-236, Section 603. ‘ a vaguest possible manner, that something the Assistant Solicitor General said, or may have intended to say, | during oral argument before this Court on March 26, 1975 somehow raises a new question regarding the type of evidence to be considered ‘by the Commission in the event this case is ultimately remanded to the Commis- | sion for reconsideration. We respectfully suggest that, | at best, what the Assistant Solicitor General said, or ) may have meant to say in that regard, during argu- ment, in no sense renders this entire litigation moot. On the contrary, as now discussed by counsel for EDF in his pending ‘‘Suggestion”’, the Assistant Solicitor Gen- eral’s remarks merely seem to add possibly another new | question to be considered and resolved by this Court— ie., in the event this case is remanded to the Commis- sion for further proceedings as directed by the District Court, what type of evidence should the Commission consider and with reference to what time frame. But patently, one thing is crystal clear. N othing the | Assistant Solicitor General said and nothing he may have meant to imply, expunged the challenged orders of the Commission in this case or cancelled the chal- lenged rate increase licensed by the Commission, pursu- ant to which the recycling industry represented by _ appellee NART herein is being compelled, and will con- tinue to be compelled to, pay $9 million a year in addi- tional, unlawful freight rates. Moreover, the Court will surely recall that the two direct appeals in this case raise serious questions re- garding this Court’s jurisdiction to hear and determine at this time the other important questions raised “on the merits’’ under the National Environmental Policy Act (NEPA) and the other related federal statutes mentioned above. (Public Service Commission of Mis- ee ) 5 sourt V. Brashear Freight Lines, Inc., 306 U.S. 204, 59 S.Ct. 480, 83 L.Ed. 608 (1939); Gunn vy. University Committee To End The War, 399 U.S. 383, 391, 90 S.Ct. 2013 (1970); Rockefeller v. Catholic Medical Center, 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed. 2d 806 (1970) ). There is absolutely nothing in the pending ‘‘Sugges- tion’’ which even contends that this basie threshold jurisdictional issue has been rendered moot in any re- spect. Indeed, if this Court. rules-it Jacks jurisdiction to entertain these two direct appeals, especially in light of the provisions of Public Law,.93-584 which recently became effective, then seemingly this Court should not even address the pending “Suggestion of Mootness”’ which plainly is directed, at best, to the “merits” of the two pending appeals. In this connection, when EDF’s view of this case was apparently in better focus, EDF stated in its brief, at page 29: \_—s>+# ‘But appellants... aré not properly before this Court under 28 U.S.C. § 1253.”’ Thus, as a matter of law, this Court must still deter- mine whether the two direct appeals in this case should be completely dismissed for lack of jurisdiction under 28 U.S.C. § 1253 (Public Service Commission v. Bras- hear, supra; Hutcherson v. Lehtin, 399 U.S. 522, 99 S.Ct. 2238 (1969) ; Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970) ) ; or whether, as a matter of judicial discretion, they should be routed, via the district court, back to the United States Court, of Appeals for the District of Columbia Circuit, where plainly they should have been filed originally, and where today all such appeals must he filed under Publie Law 93-584, om ‘ 6 Furthermore, the Court will also certainly recall that the railroads have repeatedly argued in this ease that the district court, in turn, lacked jurisdiction to review the Commission’s general revenue orders in Ex Parte No. 281 (Railroad’s brief, pg. 21 et seq.) ; that appel- lees have simultaneously, unanimously taken an abso- lutely contrary position and they contend that the dis- trict court did possess jurisdiction to review the Com- mission’s reeord of compliance or non-compliance with the National Environmental Policy Act (EDF brief, pg. 31 et seq.; NARI brief, pg. 24 et seq.; ISIS brief, pg. 10 et seq.) ; while the Government has advised the Court, both in its briefs and during oral argument, that, in its judgment, the district court was correct to enter- tain this case for review under NEPA (Government’s reply brief, pgs. 3, 4). Again, there is nothing in the pending ‘‘Suggestion’’ which renders this issue moot. In fact, it would be rather astounding if counsel for EDF should suddenly espouse any such position in light of the following statement in his earlier brief herein (at page 33) : ‘This foreclosure of review [asserted by the railroads] would preclude environmental groups such as SCRAP and EDF et al. from litigating the issue which has practical consequences for them, their members and the environment, namely, the asserted cumulative environmental impact of a per- centage rate increase which includes rates on re- eyclables.”’ Finally, of course, this case involves other extremely important questions ‘“‘on the merits’? under the Na- tional Environmental Policy Act (42 U.S.C. § 4321 et seq.) and the other related federal statutes men- tioned above, which by no stretch of the imagination 7 are presently moot. Essentially, these questions are . as follows: (i) Whether the Interstate Commerce Com- b mission, which has an established record of ada- mantly refusing to comply with the plain require- ments of Section 102(2) (C) of the National Environmental Poliey Act (NEPA), 42 U.S.C. § 4332(2)(C), may lawfully ignore those statu- tory directives by arbitrarily failing and refusing to prepare any acceptable ‘or sustainable Environ- mental Impact Statement prior to the rendition of its final decision and order in a nationwide freight rate increase proceeding, wherein it ex- pressly approved another across-the-board, un- reasonable, discriminatory, pyramidie increase in transportation rates for recyclable wastepaper, textiles and scrap metal (NARI Brief, pg. 3). (ii) Whether the Interstate Commerce Com- mission may lawfully defeat and. circumvent the plain requirements of Section 102(2)( C) of NEPA by waiting until several months after it has already rendered a final decision and order in a nationwide freight rate increase proceeding, wherein it expressly approved another across-the- board increase in transportation rates for re- cyclable commodities, to prepare for the first time, a post-mortem Environmental Impact Statement, the sole purpose of which was to rationalize, nune < pro tune, the rate inerease theretofore approved seven months before (NART Brief, pg. 3). (iii) Whether the Interstate Commerce Com- mission, which is obliged by Section 15( 7) of the Interstate Commerce Act, 49 U.S.C, §$ 15(7), to hold meaningful hearings to determine the “Taw- fulness” of proposed rate increases, may properly issue a final order approving such rate inereascs and only thereafter consider the “lawfulness”? of such approved increases under the National En- vironmental Poliey Act in post-decision proceed- 8 ings that flatly deny the right to any hearing on the new issues thus belatedly raised (NARI Brief, pg. 3). : (iv) Whether in a case of this nature where the Commission has constantly exhibited hostility to the requirements of the National Environmental Policy Act, the district court properly exercised its judicial power to review not only the form of the Commission’s alleged, belated compliance with NEPA, but the substance of that alleged compli- ance as well; and where the court found the Com- mission’s alleged compliance to be seriously inade- quate or capricious, was it proper for the court to remand the case to the Commission for further administrative proceedings consistent with the court’s decree (NARI Brief, pg. 4). The resolution of these vitally important questions under NEPA is still critically necessary, not only inso- far as the instant case is concerned, but also because, until they are resolved, they will continue to arise in case after case in the future involving proceedings before the Interstate Commerce Commission and other federal agencies, and for that reason also, they plainly are not moot. (See Southern Pacific Terminal Com- pany v. Interstate Commerce Commission, supra). II. IT IS ABSOLUTELY ERRONEOUS AND IMPROPER FOR EDF TO SUGGEST, WITHOUT ANY SUPPORT IN THE RECORD BEFORE THE COURT, THAT THE VERY MITED REGENT ACTIONS TAKEN BY THE COM. N IN EX PARTE 310 HAVE “RADICALLY CHANGED ... THE RELATIONSHIP BETWEEN RATES FOR SCRAP AND PRIMARY MATERIALS.” The wholly specious, baseless statements made at pages 2-4 of EDF’s ‘‘Suggestion of Mootness”’ regard- ing the overall effect of the Commission’s recent, ex- _ FN A RRO ae EAN ADI eG AAS a | 9 tremely limited actions in Ex Parte 310 are grossly improper and they should be stricken for lack of any support whatsoever in the factual record before this Court, and because they are plainly false and inaecu- rate. As demonstrated in NARI’s main brief herein,” on the basis of the record actually before this Court— (i) in 1959, virgin pulpwood was carried by the nation’s railroads at average national freight rates 13.9¢ per ewt. lower than those charged for the transportation of competing wastepaper. (ii) By 1971, as a result of % rate increases granted by the Commission in a series of Er Parte proceedings, that rate advantage had grown to 18.6¢ per ewt. in favor of pulp. (ii) Similarly, by 1971, virgin non-ferrous ores enjoyed a 17.7¢ per ewt. advantage over com- peting non-ferrous meta] serap, and that advan- tage had grown from a 13.3¢ per ewt. advantage in 1959, as a result of successive Ex Parte % in- creases allowed by the Commission. Since 1971, further distortions of these rate relation- ships were fashioned by the Commission in Ex Parte 281 (2.5% surcharge, plus 3%), Ex Parte 295, Sub 1¥ (3%), and Er Parte 299 (2.8%). In many of these Ex Parte proceedings, the railroads actually exempted some of the competing virgin commodities involved from any increase whatsoever, or they favored them with rate holddowns. Thus, merely because the Commission finally re- cently exempted wastepaper, textile wastes and non- ferrous metal scrap from the 7% inérease involved in 7 At pages 6, 7. - '—_—an 10 Ex Parte 310, this case involving Ex Parte 281 was in no sense or manner thereby rendered moot. First of all, some of the competing virgin commodities involved were again exempted by the railroads from any in- crease in Ex Parte 310. But, irrespective of that, the Commission’s exclusion of recyclables from the 7% increase did not nearly serve to eliminate the historie rate distortions mentioned above which still inex- plicably favor the high-priced virgin commodities and penalize the low-priced competing recyclables. Those gross rate distortions are largely still in effect, so irre- spective of what the Commission did in Ex Parte 310 in 1975, its actions in 1972 and 1973 in Ex Parte 281 are still anything but moot, and they continue to ery out for remedial relief in this case. CONCLUSION The pending “Suggestion of Mootness”’ should be rejected. The Court should proceed to pass first on the threshold jurisdictional issue; and if it then decides jurisdiction lies, the Court should proceed with a de- cision on the merits under the National Environmental Policy Act and other related federal statutes. If, for any reason, the Court intends seriously to consider the said ‘‘Suggestion of Mootness”’ then appellees NARI, et al. hereby move for rehearing and reargument with reference to that issue not discussed during oral argu- ment. ; Respectfully submitted: Epwarp L. Merrican Attorney for Appellees NARI et al. 888 17th Street, N.W. Washington, D. C. 20006 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0458%3A20. Public record. Not legal advice.