UNITED STATES v. SCRAP
Legal provision: National Environmental Policy
Argument of Erwin N. Griswold
Chief Justice Warren E. Burger: We'll arguments next in 72-535 and 562, excuse me, United States and ICC against Students, and Abredeen and Rockfish Railroad against Students.
Mr. Solicitor General.
Mr. Erwin N. Griswold: May it please the Court.
These cases are here on appeal from the decision of a three-judge court, in the district court for the district of Columbia.
The suit was brought there to set aside an order of the Interstate Commerce Commission and it involves questions under the Interstate Commerce Act, the National Environmental Policy Act and other interrelated questions.
I am representing the United States and the Interstate Commerce Commission and Mr. Cox is representing the appellant railroads in number 72-562.
We have filed separate briefs, but there is no diversions between our positions.
The setting of the stage for this case began in December 1971, when the nation's railroads requested special permission from the Interstate Commerce Commission to authorize on short notice, a two-and-a-half percent surcharge on nearly all freight rates across the board.
They asked that this be affective on January 1, 1972.
The Commission disallowed this request on the ground that there was inadequate notice, but it allowed the carriers to refile the proposal to be affective on not less than 30 days notice, and the carriers did refile on January 5, 1972 asking that the two-and-half-percent surcharge become affective on February 5.
Under Section 3 of the Interstate Commerce Act, a rate proposed by a carrier becomes affective unless the Commission suspends it within 30 days.
And this suspension pending on investigation under Section 15(7) is effective for a maximum period of seven months after which the carrier may put the rate into affect unless the Commission prior to that date has completed its investigation and affirmatively found that the proposed rate is unlawful.
In this case, during the 30-day period protests were filed by shippers and other interested parties and environmental groups, including the named appellee here, SCRAP opposed the surcharge on the ground that the prevailing rates structure discourages the movement of recyclable goods and that an across-the-board surcharge would further discourage recycling.
The Commission found that the railroads had a critical need for additional revenue and concluded that the proposed surcharge should not be suspended.
It ordered the carriers, however, to publish permanent increased rates no later than June 5, 1972 and provided that the authority to collect the two-and-half percent surcharge would expire on that date.
The Commission also specifically found that the temporary surcharge would appear to have no significant adverse effect on the environment within the meaning of the Environmental Policy Act and there was evidence before the Commission to support that finding.
The carriers then filed proposed selective increases averaging 4.1% and protests were filed.
On April 24, 1972, the Commission instituted an investigation into the lawfulness of the selective increases and suspended them for the statutory seven month period under section 15(7).
At the same time it authorized the railroads to continue to collect the two-and-half percent surcharge until the end of the suspension period which was November 30, 1972.
A few days later on May 12, 1972 this suit was files by SCRAP and on June 1st, The Environmental Defense Fund and other environmental groups intervened as plaintiffs.
Various defenses to the suit were advanced, but these were rejected by the District Court and on July 10, 1972 that court added an injunction by which the Interstate Commerce Commission is restrained from permitting the railroads to collect the surcharge and the railroads are enjoined from collecting it insofar as it relates to goods being transported for purposes of recycling.
As a result, surcharge is now being collected on recyclable materials.
I have stated the basic facts without bringing in the legal issues.
These are numerous and somewhat intertwined.
Questions relating to the Interstate Commerce Act and the procedures of the Commission will be presented by Mr. Cox.
I would like to repeat though that there is no difference between our positions either in substance or approach and I want to claim the benefit of any argument that he will make.
Chief Justice Warren E. Burger: We will resume right after lunch.
Mr. Solicitor General you may proceed.
Mr. Erwin N. Griswold: The first issue in the case to which I will turn is the familiar question of standing.
We have a rather remarkable situation here.
Five law school students though I am told they are changing groups, some of them have graduated and some others have taken their places, but I understand there are still five, proceeding not as lawyers, but as plaintiffs though not as tax payers, have tied up all the railroads in the country and with aid of the district court have prevented the railroads from collecting from $500,000 to $1,000,000 a month for the past eight months on shipments of recyclable materials.
They have been joined by several environmental groups, but the latter make no different allegations and the case may be treated on the basis of the position relied on by SCRAP.
Just last Thursday, the district court did grant a motion to intervene by the associate -- national Association of Secondary Industries, Inc, which is an organization which has filed a brief amicus curiae in this Court, the light green a brief amicus curiae.
Now, the order wasn't filed with the clerk until Friday and we didn't hear about it until Monday.
I don't think that has any relation to the case which is pending before the Court on appeal and in any event insofar as these people are shippers, they would appear to be clearly are not entitled to the equitable relief which is the only thing involved here.
After all, this is an appeal from the granting of a preliminary injunction because they would have a plain and adequate remedy at law by way of review of the rate order of the Commission.
The allegations of SCRAP appear at pages 8 to 10 of the appendix, particularly on page, the bottom half of page 9.
They allege that each member of SCRAP, although we have now some new members who apparently have not formally joined in this petition, each member of SCRAP has been caused to pay more for finished products purchased in the marketplace, made more expensive by both non-use of recycle materials on their manufacture and the need to use comparatively more energy and the reduction of a raw material to finished the products and two uses, the forests, rivers, streams, mountains and other natural resources surrounding the Washington Metropolitan area and at his legal residence for camping, hiking, fishing, site-seeing and other recreational or aesthetic purposes and passing to the third has been and continue to be exposed to the quality of the air within the Washington Metropolitan area and their legal residence.
Now, it will be seen that these allegations are entirely general.
It is not said, which forests, rivers, streams or mountain?
We don't even have a particular valley as we did in the Mineral King case last year.
Which forest, stream, river or mountain is used by any members SCRAP, it is obvious that these allegations could be made by any member of the public, who wishes to make.
Justice William H. Rehnquist: Did the district take testimony on this --?
Mr. Erwin N. Griswold: No, Mr. Justice.
The District Court not only didn't take testimony, but there is no evidence to support their standing and the position of SCRAP in their motion that dismiss is that such evidence was unnecessary.
District Court didn't require any proof, even of these allegations and quoting from their motion to affirm, SCRAP said that proof of its injuries is unnecessary for purpose of standing and it also said that it was a and I am quoting that it was obvious, that is their word, that SCRAP could not and I quote, “prove the amount of additional pollution in the Washington D.C. area created by the latest ICC railroad rate increase.”
Justice William O. Douglas: Who in your view would have standing?
Mr. Erwin N. Griswold: The shippers whose rates were increased would have standing.
I am not sure that anyone would have standing to obtain an injunction in this case.
That is a question which interrelates with the Interstate Commerce Commission argument that Mr. Cox is going to make.
There are those who feel that standing is no longer a relevant argument, though I wonder if our predecessors were always that wrong.
In another case, Judge Gisele in this district, nearly two years ago said, in recent years, the Supreme Court has greatly expanded the concept of standing and in this circuit, the concept has now been almost completely abandoned and similarly in a recent article in the Cincinnati Law review, the author concludes with this statement, “the law would be so much better if the courts got directly on with the task of deciding the merits of the claims presented without passing on the merits of the plaintiff presenting them.”
Now, there is a certain simple appeal in that and it may represent the wave of the future, but it is a serious step, the implications of which should be carefully explored and considered.
Before going further, I may observe that if there is standing in this case, it would be helpful, I think and a contribution to candor, if this Court would indicate that standing is no longer required, for to say that standing is required and that there is standing in this case.
Justice Byron R. White: Would the United States have standing Mr. Solicitor General?
Mr. Erwin N. Griswold: Yes, I think so, Mr. Justice.
The United States has standing to enforce the laws of the United States and a state – a state might well have the standing --
Justice Byron R. White: Would the United States have standing if it was alleged that it's moving to enforce the environmental protection?
Mr. Erwin N. Griswold: Well, I think there are many situations under which the United States would have standing to enforce matters relating to environmental protection, particularly in view of the statute which Congress has enacted stating the policy of the United States.
Justice William O. Douglas: For a person who is in business of recycling as some companies are, would they have standing?
Mr. Erwin N. Griswold: A person who had business interest would have standing, yes.
Justice William O. Douglas: It comes down to the dollar business?
Mr. Erwin N. Griswold: I am sorry, Mr. Justice.
Justice William O. Douglas: It comes down to the dollar --
Mr. Erwin N. Griswold: No, I don't think it would be limited to a dollar amount as in Sierra Club against Morton.
In the opinion by Mr. Justice Stewart it was recognized that aesthetic interests could affect it.
As, for example, a person who owns a piece of land and in violation of an environmental statute, his view is going to be obstructed, even though it might not have a -- it just happened to be a sentimental view that he had reason to like, but it affects him.
It isn't something that deals with the public in general.
Standing is not a fiction and never has been and should not be.
If anyone has standing to bring a suit like this, it will mark a substantial shift in the balance under our traditional and constitutional separation of powers where this is what the Constitution meant by cases or controversies, to which the judicial power is extended.
If everyone is a Private Attorney General, free to raise any public question at his whim or because of his academic or abstract interest, more and more questions will be thrown into the courts and we can readily have a situation where every facet of our governmental operation depends on the later hindrance of the courts wherein affect the courts would take over all the details of the administration of the government.
In my view, that would not be good for the courts and it would not be good for the country.
Perhaps, more pertinent, it is not the the sort of division of function which was intended by the framers as I see it, when they established the Constitution.
I don't want to argue another case, but this Court last Monday granted certiorari in United States against Richardson, which is a clear illustration of the type of question which will arise if there is standing in a case like this.
It may seem very fine to some today to have the courts decide all the legal questions, often pretty much in advance and in the absence of concrete facts as is the situation here.
For the courts today are progressive and forward looking and innovative, but it has not always been so.
There have been times when the courts were felt by way and be backward looking and obstructive and serious attacks on the courts have occurred.
Of course, the court should do their duty.
They should exercise a judicial power without fear or favor, but the judicial power does not authorize a general overriding sort of oversight of all legal questions arising in the government, a sort of ombudsman to whom all may resort when they feel so impelled.
It was for this reason that the judicial power was extended to cases of controversies and that should mean bona fide disputes by a party who has a real stake and who can show how he has been hurt.
That is not this case with respect to any of the appellees.
I turn now to one of the substantive questions in this case, namely the proper interpretation of the National Environmental Policy Act and its application to the action of the ICC which has been enjoined here.
We start with the procedure long established by the Interstate Commerce Act.
As indicated in the previous case and as I have said, the Commission is given broad power to suspend, propose rates but it has only 30 days within which to take this action and under Section 15(7), it has only seven months after suspension to act on the proposed rates.
If the Commission has not acted within seven months, the new rates go into effect.
On January 1, 1970, the President signed the National Environmental Policy Act.
This is obviously a statute to great importance.
Establishing a clearly stated public policy and it is obviously to be taken seriously by all agencies of the government.
It was enacted in sweeping, but rather general terms.
The Act established a Council on Environmental Quality with explicit duties in the areas of research and investigation into environmental quality and the Council has issued guidelines under the Act, which are set out at pages 43 to 54 of our brief, but the Council has no administrative responsibilities.
It decides no cases and issues no orders to agencies or parties and there is no provision in the statute for judicial review of any action or non-action.
I am not suggesting that there can't be judicial review.
I am merely observing that the statute though sweeping, is not particularly articulated, is cast in very general terms and obviously requires some construing.
When we look at the environment statute itself, Section 102 C, 1022 C, which is on page 42 of our brief, we find that it applies to legislative proposals which are not involved here and then the keywords are Major Federal Action.
If Major Federal Actions, if they are ones “significantly affecting the quality of the human environment.”
Thus, we have at the threshold two phrases which require the consideration of this Court.
There is another phrase at the beginning of Section 102 that I will mention later to the fullest extent possible and it seems to me in large measures this part of this case turns on the construction which this Court gives to those three phrases.
There is nothing in the statute which limits these phrases to any particular agencies or types of agencies.
For example, literally, the statutes applies to decisions of this Court and if so, after all this Court is a federal agency and if this Court takes an action, it then well be a Major Federal Action, if so construed, would require the Court to issue an environmental impact statement after consulting all interested federal agencies before making any decision which could the affect the environment and under the regulations of the Council on Environmental Quality, this process could take at least four months and probably a good year longer.
As I have said, what this Court does is often Major Federal Action and what it does may affect the environment.
For example, this Court's decision in this case or in last term, Sierra Club case or in a case involving school busing, might as least arguably has a significant environmental affect.
Now, I hasten to make it plain that I don't think that the statute should be construed to apply to the decisions of this Court, but I do suggest that reaching that result takes some construing.
In the light of the whole setting, it is right and sound, I think that to conclude that by the words, Major Federal Actions in the statute, Congress did not mean to include decisions of this Court.
Though there is no definition of a federal agency or anything like that which excludes this Court, even though, they are obviously federal action and may often be major.
If the statute is susceptible to such a limitations and I think it is and must be, then it becomes necessary to consider the statute in its application in other set of things.
Our submission is that as a matter of statutory construction, the National Environmental Policy Act was not intended to displace the Interstate Commerce Act when the application of NEPA is not feasible in the light of the scheme for prompt action established by the Commerce Act.
Now, this result requires no straining of the statutory language.
For Section 102 itself starts out with the provision that the policies of NEPA are to be applied to the fullest extent possible.
Where as a practical matter, the application of the NEPA procedures is not possible because of the time limitations and the operative statutes, NEPA should not be construed to require.
Justice Byron R. White: Is it the Commission's preferred position on the applicability of the --
Mr. Erwin N. Griswold: As to suspension orders, yes, Mr. Justice.
Justice Byron R. White: But not as --?
Mr. Erwin N. Griswold: Not as to the --.
Justice Byron R. White: Not as to their final action?
Mr. Erwin N. Griswold: Not as to their final action.
Justice Byron R. White: They think that -- they think you are enforcing the investigation and the decision?
Mr. Erwin N. Griswold: Then may will develop the materials which, as a part of their final action, will include an appropriate environmental protection statement.
The Commission does not take the position that NEPA is never applicable to the Commission, but only that it is not applicable to suspension orders which must be acted on within 30 days.
Justice Byron R. White: And I suppose you take the same position whether they do suspend the rates --
Mr. Erwin N. Griswold: Whether they do or do not, they must do one or the other within 30 days.
If the Commission doesn't act within 30 days, the new rate goes into effect.
If Section 1022 (c) is applicable, it requires the preparation of an elaborate environmental impact statement, the elaboration of which is apparent from the material in the statute on page 43 of our brief which I won't take time to read, but which shows that it is a very large indication -- undertaking.
The guidelines issued by the Council which were suggested in the Committee reports of both houses of Congress is not something that the Council made overly elaborate.
The guidelines indicate that environmental impact statement should be issued in two stages.
First, a draft should be prepared by the agency involved, then it is provided in the statute it should be reviewed by other agencies, Federal, State and local which have special interest or expertise.
The Council suggests that 90 days be allowed fro this process.
The draft is also available to citizens for comments.
The agency then prepares a final statement in the light of all the comments that it receives.
It then issues a statement and makes it available to the Council on Environmental Quality and the public.
It is not to take any administrative action for 30 days thereafter in making the statement, it is further enjoined by the statute in very comprehensive terms which appear at the bottom of page 33 and top of page 34 of our brief.
It is required to utilize a systematic interdisciplinary approach which will ensure that integrated use of the natural and social sciences and the environmental design arts in planning and decision making, which may have an impact on man's environment.
Chief Justice Warren E. Burger: Does it define that last phrase, environmental arts?
Mr. Erwin N. Griswold: No, Mr. Justice – Mr. Chief Justice.
Chief Justice Warren E. Burger: There is no set of definitions in the Act?
Mr. Erwin N. Griswold: The environmental fine arts is not defined.
Chief Justice Warren E. Burger: What would that apply to, the buildings and highways, I suppose --?
Mr. Erwin N. Griswold: It applies to anything to which it applies, Mr. Chief Justice.
It is in very broad and sweeping area.
Chief Justice Warren E. Burger: I suppose that would mean an attack on a proposed building because someone thought the design of the building was bad?
Mr. Erwin N. Griswold: That argument, no doubt, will be made under this statute that at some point.
Justice William H. Rehnquist: Well here literally speaking, the determination of the Commission was to do nothing, wasn't it, was to not suspend?
Mr. Erwin N. Griswold: Oh no, Mr. Justice.
That is the position of the Commission that that is what they did.
Actually, what they did was to say, we will not suspend it, but you must, within a fixed time, propose permanent rates and we will then terminate the suspension when your permanent upgrades going to affect.
So, it was a conditional non-suspension.
It wasn't simply we don't suspend which would have put the two-and-a-half percent increase into effect.
The Commission has, it has to consider suspension orders in approximately 4000 cases a year.
The Commission was obviously confronted with the task of determining its duty in the light of the two statutes taken together.
By its own terms, NEPA is applicable only to actions significantly affecting the quality of the human environment and in this case, the Commission made a specific finding that the proposed across the board temporary surcharge, “will have no significant adverse effect on the quality of the human environment.”
The Court below said that this finding appears to be no more than glorified border play.
Perhaps, it did not adequately recognized the Commission's experience in the field, nor its standing as a co-ordinating agency of the government seeking to comply with its duty under provision to two statutes which are surely not wholly clear in their interrelations.
Now, it is obvious that NEPA can't be complied with fully within 30 days.
The appellees suggest that since the enactment of NEPA, the Commission should always suspend new rates until an environmental impact statement has been prepared and filed but as the Second Circuit had pointed out, sometimes suspension has environmental implications.
If, for example, the railroad should be so impaired that they have to abandon some of their service, the very things that the appellees are concerned about might come into operation.
Justice Potter Stewart: Do you concede Mr. Solicitor General that the Commission was obligated under NEPA to do even as much as it did in the statement that you just quoted saying that in its field it would have no substantial adverse effect --
Mr. Erwin N. Griswold: Yes, Mr. Justice I think that they were required --
Justice Potter Stewart: To do that much?
Mr. Erwin N. Griswold: -- to hold, well, perhaps not.
Perhaps, I think that was helpful that is one way that they can make NEPA not applicable.
The other way is by saying that NEPA should not be construed in any event because of the -- to the fullest extent possible language, to apply the suspension orders which under the statute must be made within 30 days.
I think, I would say, there were two alternative grounds upon which the Commission could refrain from making a full environmental impact statement.
Mr. Cox will now deal with further questions under the Interstate Commerce Act and the procedures of the Commission.
Chief Justice Warren E. Burger: Mr. Cox.
Argument of Hugh B. Cox
Mr. Hugh B. Cox: Mr. Chief Justice and may it please the Court.
Because of the time, I may have to limit my argument to a single point which is directed to the nature of the injunctive relief that was granted below.
That injunction as it has been said, enjoined to Commission from permitting the interim rate increase and railroads from collecting it Now, it is my submission that even if it is assumed that plaintiffs have standing, that NEPA applies, that Commission did not comply with NEPA, even on those assumptions that injunctive relief was erroneous.
Now, of course, we do not accept those assumptions, they are disputed in our brief.
There is one additional assumption which is of great importance and that is that these orders, refusing to suspend rates are reviewable at all.
If I have any time, I shall try to sat something about that otherwise, I shall have to submit it on the briefs.
But for the present, I am making these assumptions and our point is that on those assumptions, the court would have been entitled to set aside these orders and to remand the case to the Commission with directions to the Commission to comply with the court's statement of the law and the Commission would have been oblige to do so, but the court did not have authority to suspend the rates itself or compel the Commission to suspend them or to enjoin the railroads from collecting it.
Now, this is a point of great practical importance to the rail transportation system of this country.
This injunction as has been said has caused and will continue to cause substantial revenue loss for the railroads and particularly to the railroads in the north-eastern part of the United States who are disabled to stand.
But beyond those immediate consequences it has general consequences which are far more serious, because it is an assertion of power on the part of a district court to enjoin rates when the Commission is declined to do so in any case involved in environmental issue to enjoin the railroads from collecting the rates although the rates have never been determined to the be unlawful and what is more to do these things without paying any attention to the seven months limitation on suspension orders that is specifically described in the Interstate Commerce Act.
Chief Justice Warren E. Burger: How long is the suspension gone now?
Mr. Hugh B. Cox: Well, if you take it from the time that the Commission itself could have suspended the rates I think that time expired in, I think, on 5th of September.
If you take it from the time that the district court, and I wouldn't think this is proper, but if you take from the time the district court enjoined the rates, they have been enjoin suspended more than seven months because that period expired about the 15th of this month, So anyway you look at it, whatever, however you do treat the dates, these rates have been suspended as a result of the district court's injunction for more than seven months and there was no limitation in the injunction at all.
Now, this point is -- the practical importance of this situation lies in fact that the most -- one of the most difficult and constant problems that the railroads of this country have had for 25 years is the lag, this time lag that exist between the time when they must pay increased costs and time when they can partially offset those costs by increasing the rates.
Now, some time lag is inevitable.
The railroads have to endure it because it is imposed upon them by the Interstate Commerce.
They have to give 30 days notice unless the Commission released them from it.
The Commission can suspend the rates for seven months and that loss is irreparable.
The railroads can't do anything about it, but the railroads are gravely disturbed by any judicial alteration of the regulatory plan of the Interstate Commerce Act which increases that delay and increases the time lag and I think some figures about this present proceeding are pertinent here.
In 19 – at the end of 1971 when the railroads initiated this, tried to initiate this rate increase, at that time and since the last time they had raised their rates generally, their costs had increased by one billion dollars.
Most of that cost is in labor cost and payroll taxes on wages.
In the time which this very proceeding has been pending today, those costs have been increased by another billion dollars.
Now, if the railroads had been able, which they were not, to lay their hands on the revenue, the entire revenue that they hoped to obtain from the rate increase, the general rate increase that is involved which was about 350 million dollars, if they had been able to raise – lay their hands on that at the very beginning of this proceeding, it would have been only a partial offset about 25% of these increased costs.
I think against that background the court can understand why is this situation is a concern to the railroads and is a concern to the rail transportation system of this country.
Because the railroads need this revenue, they need it to provide the services which improve their services and maintain their services to prevent diversion of traffic to truck, which the appellees says himself and have environmental consequences.
They needed matter of fact to put their own environmental projects on which they spend a great deal of money.
The conclusion, the practical situation that is created by this assertion of judicial authority, I point out to the Court is a serious one because it is not -- its limited, you can say its limited to cases involving environmental issues, but that limitation does reduce its practical significance because of arguments that the appellees here show, the arguments they made before the Commission a claim of environmental affects can be based on any adjustment in rail rates on the ground that it diverts traffic to trucks and even these recycle commodities involve a great range of commodities and they are commodities that involved in litigation not only in these general rate increase cases but involved limited and specific cases.
Justice Byron R. White: I think that you are arguing that affect if need that are involved here shouldn't make any difference in the applicability of railroads?
Mr. Hugh B. Cox: That's right.
That's precisely the point.
Justice William J. Brennan: I gather accept for NEPA, the fact situation here is the same as in Arrow in the sense that there had been --
Mr. Hugh B. Cox: There is one like it is, I think very similar -- there is one just difference Mr. Justice Brennan, this injunction or this was interposed at the very suspension stage of the proceeding before to Commission.
The rates and of course the Commission there had exercised the suspension policy and then the railroads had voluntarily extended and here this the railroad Commission having refuse to suspend them, the court stepped in and in effect suspended them.
Justice William J. Brennan: Well in that sense the situations are comparable, aren't they?
Mr. Hugh B. Cox: I think, they are , yes.
Justice Byron R. White: Because it is an imposition of the court before the act -- the Commission is even before to take final action?
Mr. Hugh B. Cox: That's right.
It's before it's ever considered the lawfulness of the rates and no one here suggested that these rates are unlawful, even the court below didn't do that.
Justice Byron R. White: Any possible argument that then there is that the deeper in such factors which the Commission should consider separately and apart from just and reasonable or would it be as part of that concept?
Mr. Hugh B. Cox: Well, I would say that if you give those terms their broadest meaning Mr. Justice White that NEPA would require them determining, at least I would be fair to say that NEPA would require the Commission in considering and determining just and reasonableness as to take into account environmental factors, as it did sometimes before the passing to NEPA.
Justice Byron R. White: Now, the Commission's only charter is to determine justness and reasonableness?
Mr. Hugh B. Cox: Yes.
You include in that all the various discrimination as usually is and non-competitive rates and kind of thing.
That's its statutory mandate.
Now what NEPA has supposed to have done is to add some additional factors to that just as declaration of the Transportation Policy, the other is the old Hoch-Smith Resolution did back of 1920.
Justice Byron R. White: As in the case of anti trust practice?
Mr. Hugh B. Cox: Yes, as in the case of anti trust practice, which I think was more often done by the courts and by Congress, but it's there just the same.
Now these consequences are consequences a man might accept if you were forced to them by some explicit core line of judicial decisions or legislative command, you could hardly embrace them even in those circumstances.
But my submission is that this assertion of power by the District Court was not -- cannot be justified by any statute or by any line of decisions of this Court but is in fact inconsistent with the Interstate Commerce Act and with this Court's decision in Arrow and while the --
Chief Justice Warren E. Burger: Is there any indication Mr. Cox in the legislative history of NEPA that would suggest that they intended to modify the Arrow doctrine?
Mr. Hugh B. Cox: I think my time has expired, but -- no, I have a little more time.
Chief Justice Warren E. Burger: You still have five minutes.
Mr. Hugh B. Cox: No, there is absolutely no indication, either in the words of the statute or in its legislative history that it intended, statute was intended to amend the Interstate Commerce Act, to change the regulatory plan or --
Justice William J. Brennan: I expected -- the Congress even addressed the question of the interstate commerce?
Mr. Hugh B. Cox: No, our appellees, the appellees, one of them here says, oddly enough in support of its argument that Congress did not specifically deal with this matter or to use the appellee's words even paused to consider it.
It seems to me an extraordinary argument to make and --
Chief Justice Warren E. Burger: Perhaps that was because no one thought that freight rates could affect the environment from the time they were thinking about this subject?
Mr. Hugh B. Cox: That is perhaps a reasonable speculation.
I couldn't say, but I do say to the Court that on this very point that their ultimate reliance in this case is on the NEPA argument, because while they some precedents and concepts from existing law, when you examine those other cases they cite in the concepts, they aren't applicable here and of course one on which they principally rely I think was dealt with in that footnote 22 on page 671 of the Arrow opinion, so that their ultimate reliance on this injunctive, extraordinary injunctive relief is simply that NEPA changed the law.
Justice Byron R. White: Mr. Cox is there any indication or what the position of environmental protection agency is?
Is it in-charge of this doing and enforcing the statute as if an agency (Inaudible) courts, is NEPA or it the agency, do they have any difference with the ICC, Interstate Commerce Commission (Inaudible)?
Mr. Hugh B. Cox: Oh!
I think I should have to say Mr. Justice at least in this proceeding, I think they've taken the position that they would prefer not to have the rates increased or they would like to see the rates suspended in files.
Justice Byron R. White: They haven't filed -- they filed a separate --
Mr. Hugh B. Cox: They may have not filed anything in this Court and --
Justice Byron R. White: Well, that maybe one thing, but what about the procedure?
How about the necessity for having a environmental impact statement before you suspend or not?
Mr. Hugh B. Cox: Well, the dean has or I beg pardon your pardon, the Solicitor General has stated the argument on that point and we hardly concur on it.
We I think we take the position that at the suspension stage because of the time involved in the nature of the decision, no environmental statement and indeed no finding of no environmental impact is required.
That can be dealt with a next stage of the right proceeding.
Alternatively, we say that if anything was required, the finding was required and the finding was made here and it was supported by substantial evidence.
I would like to -- if I have any time left --
Unknown Speaker: Until the red light goes on?
Mr. Hugh B. Cox: -- to speak very briefly on this question of reviewability, which is someways ancillary to the point I have made although independent.
Now here again, the appellees rely really on NEPA because there is a long line of cases in the unbroken line really of cases holding that order that does nothing except refuse to suspend rates is not reviewable at all.
There is a suggestion by Judge Friendly in one case that an order of suspending rate, maybe reviewable, if it is made or vitiated by an absolute lack of power as, for example, that the Commission tried to suspend to more than seven months.
But refusals to suspend have been held generally not be reviewable, I think, because of the considerations pointed out in the opinion in the Arrow case, because of its relationship to the injunction point that I've argued.
And here again, appellees ultimately rely on the assertion that NEPA has changed the law and has made orders reviewable that were not reviewable before and here again there is nothing whatsoever in the legislative history on the act to suggest the statute was ever intended to have that consequence.
Now I emphasize in concluding that my argument on reviewability is independent of the argument on the nature of the injunctive relief and I am where I began by saying to this Court that if you assume everything else, the court below here went far beyond any legitimate function it has as reviewing court would have done -- to suspend these rates and to enjoin the railroads from collecting rates that have never been determined to be unlawful.
Chief Justice Warren E. Burger: Thank you Mr. Cox.
Argument of Peter H. Meyers
Mr. Peter H. Meyers: Mr. Chief Justice and may it please the Court.
Every year this nation produces more than four billion tons of solid refuse.
Only a very small fraction of this scrap was recycled even though most of it is capable of being recycled and reused.
Railroad freight rates which are authorized by the Interstate Commerce Commission are a major factor discouraging recycling.
This is what this case is all about.
I will address myself primarily to the issue of the Commission's failure to comply with the National Environmental Policy Act to the fullest extent possible, prior to April 24th audit.
Mr. Dienelt will address the other issues in this case.
On January 1st 1970, the date NEPA became effective, a national policy was established to protect the environment.
All agencies were required in the strongest language to consider environmental values in their decision-making procedures.
In section 101 (B) (6) of the Act, Congress specifically focused on the recycling problem and declared that it was the responsibility of all federal agencies to “enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.”
In the three years that NEPA has been in effect, the Commission has failed totally to fulfill this duty to encourage recycling and has refused to implement the procedural obligations of Section 102 (2) (C) of the Act requiring a preparation of environmental impact statements.
The Commission has granted three general rate increases on a recyclable materials since 1970, this case is the third, without ever making a detailed assessment of their environmental impact, without attempting to accommodate its procedures to the requirements of NEPA and without proposing any legislative measures to the President pursuant to section 103 of the Act to bring the Commission's procedure into conformity with NEPA, if there were any contrasts.
It is hard to imagine a case where both the counsel on environmental quality and the Environmental Protection Agency have more strongly protested an agency's implementation of NEPA.
These letters to the Commission in this and prior proceedings are in the record before the District Court and are on Appendix before this Court.
It is SCRAP's position that compliance with Section 102 (2) (C) of NEPA to the fullest extent possible required the Commission to prepare a draft environmental impact statement prior to its April 24th suspension order in this case.
We do not necessarily seek and the District Court specifically refused to hold more generally that a draft impact statement is always required before the Commission makes its suspension decisions.
The District Court's language to this affect is quoted on page 20 of our brief.
Section 102 (2( (C) of the Act requires the preparation of a detailed environmental impact statement, prior to agency action, involving as the Solicitor pointed out, a major Federal action significantly affecting the quality of the human environment.
Copies of the statement quoting the language of Section 102 and I quote again, “shall accompany the proposal through the existing agency review process.”
The clear objective of the impact statement requirement is to build into the decision making process a careful and thorough assessment of the potential environmental dangers of and alternatives to agency action and to assist the agencies in implementing the policies declared in Section 101 of the Act specifically, including the duty to encourage recycling.
Justice William H. Rehnquist: Mr Meyers what if the Commission had simply declined to suspend the rates, in affect done nothing, what would be your position then as to the requirement of environmental impact statement?
Mr. Peter H. Meyers: It's Scrap's position Your Honor that it does not matter what action the Commission takes.
Whether it suspends or not suspends, the important factor in this case is that when the Commission is going to -- can make that decision when it is considering whether or not to allow increased rates on recyclable commodities to go into effect, it is required to know what affect those rate increases will have.
Whether it takes either specific action is not crucial.
The Section in language 102 which requires compliance with 102 to the fullest extent possible has been held by a number of courts which are quoted in our brief to impose a high standard.
It does not create as the Court in Calvert Cliffs pointed out and the “escape hatch for footdragging agencies.”
The impact statement must be prepared as early as possible and in all cases prior to agency decision which may have a significant affect upon the environment, even interim agency decisions.
The cases to this affect and the Council on Environmental Quality guidelines to this affect are quoted at pages 15 through 16 of our brief.
The Solicitor as well as the railroads places great stress on the Commission's February one finding of no environmental impact.
I would like to address this point for a few minutes.
It is our position that the court below correctly held that this unsupported finding which was severally criticized by both the Council on environmental quality and environmental protection agency was no more than glorified (Voice Overlap).
It ignored Section 5 (B) of the CEQ guidelines.
The Section 5 (B) of the CEQ guidelines requires the agencies to prepare an impact statement whenever they are is “Potential” that the environment maybe significantly affected or if the impact is and “likely to be highly controversial.”
The government points out in its brief that the CEQ guidelines are entitled to great weight, we agree with that position.
In any event, the Interstate Commerce Commission has incorporated the CEQ guidelines into its own rules and would be bound by them in this proceeding.
Another reason why the February 1st finding cannot adequately support the Commission's decision in this case is that on February 1st, the Commission was considering whether or not to suspend temporary 2.5% surcharge.
We did not go into the court after the February 1st suspension decision.
We waited until the Commission had made a suspension decision on the 4.1% permanent selective increases.
We are unable to see how a finding with respect to a 2.5% temporary surcharge could be held to support the Commission's decision on April 24th when it was considering larger permanent increases.
Finally on March 6th the Commission issued a draft environmental impact statement.
The scope of this statement is somewhat unclear.
At portions of the impact statement the Commission says that for purposes of considering the impact they will evaluate the permanent increases.
In other portions of the statement.
The Commission says it is considering the surcharge as if it was a permanent part of the rate structure.
In this draft impact statement, which is set up also in the Appendix, the Commission frankly acknowledged that it did not know what affect even the surcharge would have, if made a permanent part of the rate structure.
If this is true, how could the Commission know what effect the larger permanent increases might have upon the environment and how can they continue to rely on this February 1st finding, in the very beginning of the proceeding where they made their boilerplate determination that there was no potential impact.
The crucial issue in this case, as the Railroads and the Solicitor have argued it, is whether it is impossible for the Commission to comply with NEPA and with the CEQ guidelines within the 30-day period it has for determining whether or not to suspend a rate.
I, before answering this, I would like to reinforce our position in this case that the District Court did not hold and we are not seeking an absolute rule that the Commission must always prepare its draft impact statement before its suspension decisions, but we point out to this Court that it maybe quite possible for the Commission to prepare impact statements in future general rate increase proceedings on recyclable commodities.
Once it has finally prepared the draft environmental impact statement in this proceeding.
Secondly, we submit to this Court that this 30-day period is not an inflexible period.
The Commission can and has extended this 30-day period to several months in order to give the public, greater notice of the purposed increases.
The government's reply brief at page 4 quotes a portion of Section 63 Interstate Commerce Act.
Reading that whole Section of the Interstate Commerce Act, it becomes apparent and it has been consistently construed by the Interstate Commerce Commission that whenever the railroads request special permission to depart from normal tariff filing requirements, the Commission can require the railroad to provide the public with whatever amount of times notice the Commission thinks is appropriate.
Now the Solicitor's brief points out, it should -- it points -- makes the argument, pardon me, makes the argument that whether or not the Commission should file an impact statement should not depend upon the fortuitous circumstance of whether the railroads request special permission.
It is my understanding, however, that railroads tariffs with the last 30 years and into the foreseeable future are always so complicated that the railroads are as a practical matter always require to seek special permission in these general rate increase cases and that as a practical matter, the Commission will always have the opportunity to extend this 30-day period.
More important, however, is the fact that the Commission should have begun its environmental assessment when NEPA went into affect three years ago.
It should not have waited until the railroads came to them with their purposed increases.
It will always be in the Commission's language, impossible for the Commission to comply, if it does nothing.
It will have its first 30-day suspension period, in its own language and then it will issue its final order and it will be impossible to comply in that proceeding and then the second time the Railroads come for their rate increases, it will impossible to comply at the suspension stage and by the final order and this key go on forever.
Also the Council on Environmental Quality specifically informed the Interstate Commerce Commission below that it should file an adequate draft impact statement prior to its first suspension decision on February 1st and inform them again prior to its second suspension decision on April 24th.
It is also --
Justice Byron R. White: (Inaudible) if the Commission cannot its job get done with respect to the environmental impact, that it must suspend the rates until it does?
Mr. Peter H. Meyers: That is not a necessary conclusion of our argument.
It should have suspended at least until it is found out what the impact was.
Justice Byron R. White: It was the same argument?
Mr. Peter H. Meyers: Yeah.
Justice Byron R. White: Isn't it?
Mr. Peter H. Meyers: We do not make it -- we do not take that position in necessarily every case.
Justice Byron R. White: Why you do not take the position in this case?
Mr. Peter H. Meyers: In this case, we do.
There has to come an end to the time where the Commission can continue to grant these incremental increases, which the Council on Environmental Quality and environmental protection seek --
Justice Byron R. White: Yeah, but the argument on the other side is that you are taking the position that they should come up with something in 30 days which is an impossibility?
Mr. Peter H. Meyers: I would like to make two specific responses to that, Your Honor.
First, in section 102 (1) of the ct, Congress specifically requires the Commission to adjust its procedures to permit it to comply with NEPA and in Section 103 of the Act, Congress says, if there is any conflict which does not permit you to comply to the fullest extent possible, go to the President for post changes.
Justice Byron R. White: Do you know whether the Commission's practice almost invariably is to suspend the rates if they start a investigation?
Mr. Peter H. Meyers: No, it is my understanding, it is not there in variable practices.
Justice Byron R. White: So even if they have -- even if they must have a proceeding to investigate the reasonableness of the rates, they do not necessarily suspend it?
Mr. Peter H. Meyers: Right, that is correct.
That is my understanding Your Honor.
Justice Byron R. White: So that maybe why you do not make the argument (Inaudible)?
Mr. Peter H. Meyers: In addition, the Commission in neither of the suspension orders involved in this case, did the Commission rely upon this impossibility argument.
Commission did not say it was not possible to comply with NEPA.
The Commission has in effect left it to its counsel to make this argument to this Court now more than three years after NEPA has been into effect that it is impossible to comply.
The Commission, however, has not gone to the President to propose changes, has not attempted to adjust its procedures to the requirements of the Act.
The Commission has done virtually nothing.
The Commission has -- this is the third general rate increase proceeding after (Inaudible) effect, and the Commission says, because they have done nothing previously, we can not comply now.
Justice Thurgood Marshall: What triggers the need for the ICC to get this impact statement?
Mr. Peter H. Meyers: Triggered the need when the railroads proposed increases on the recyclable commodities, which could have a significant environmental effect.
Justice Thurgood Marshall: Is it limited to recycling?
Mr. Peter H. Meyers: No, the increases went to all rates.
The recycling --
Justice Thurgood Marshall: Well, the case that was just before, should they have gotten an impact statement?
Mr. Peter H. Meyers: I cannot see how inspection charges for grains could even remotely have an environmental impact --
Justice Thurgood Marshall: You said the ICC should have had this done long before this, is that correct?
Mr. Peter H. Meyers: That is correct Your Honor.
Justice Thurgood Marshall: Why?
Mr. Peter H. Meyers: NEPA went into effect in 1970 placed up on a Commission in Section 101 (B) (6) a specific duty to encourage recycling.
Justice Thurgood Marshall: On the Commission?
Mr. Peter H. Meyers: On all federal agencies.
Chief Justice Warren E. Burger: Including the courts?
Mr. Peter H. Meyers: I would not go that far Your Honor but [Laughter] not presented in this case.
There is no question that the Commission is obliged to follow the commands.
Chief Justice Warren E. Burger: What you are suggesting in response to Justice Marshall's question that this is a blanket requirement over the whole spectrum of government or most of it at least and that without any specific direction or order or request, they should all be getting up environmental impact statements on every subject that might come before them so that they will be prepared to respond in let us say 30-day time limits.
Is that your position?
Mr. Peter H. Meyers: No Your Honor, our position is that it is the words of Section 102 (2) (c).
The impact statement is required only for major federal actions, significantly effecting quality of the environment.
Now the Commission knows if there should not be any doubt that the railroads for example will be requesting another rate increase in the next year or two.
This is no secret.
These are things which could have been expected and should have been foreseen by the Commission when NEPA went into effect.
We review --
Justice Thurgood Marshall: Weren't foreseen by Congress, were it?
Mr. Peter H. Meyers: Excuse me Your Honor?
Justice Thurgood Marshall: Were they foreseen by Congress?
I understand that the Solicitor – Mr. Cox to say Congress did not mean -- there is nothing in it about the ICC, is there?
Mr. Peter H. Meyers: Nothing in it specifically dealing with the Interstate Commerce Act, but Congress I believe did make it clear that no agency of the Federal government can and I am quoting from portion of the legislative history now, the major changes in the senate can under its statutory authorizations shall utilize an excessively narrow construction of its existing statutory authorizations.
Justice Thurgood Marshall: Is that a restriction against this Court that we shouldn't use a narrow construction, you would not go that far, while you are at it?
Mr. Peter H. Meyers: I would not go that far, Your Honor.
Section 102 (2) (C) of NEPA in requiring environmental impact statement, did not intend this requirement to be type of hollow ceremony which the Commission apparently believed it to be when filed its draft environmental impact statement in this case.
Congress intended that the agencies to undertake a detailed assessment of the environmental impact of its actions. One of the primary reasons I submit to this Court that the Commission has not complied with NEPA and has not even attempted to integrate NEPA into its own procedures is that it has refused to make the accommodations in its own procedural requirements which would make NEPA meaningful.
It has continued to rely upon the limited self serving statements which the parties submit to it in these general rate increase proceedings.
It has continued to act as the court pointed out in Calvert Cliffs as an umpire sitting back and evaluating the submissions by the parties.
We submit that the courts, that this Court should follow those courts which have said that NEPA requires the agency to take this initiative in considering the environmental value and make whatever adjustments in resources or procedures are necessary to fully comply with the act.
Chief Justice Warren E. Burger: Thank you Mr. Meyers.
Argument of John F. Dienelt
Mr. John F. Dienelt: Mr. Chief Justice and may it please the Court.
I would like to begin my argument by discussing some of the questions which have been raised by the Court to other counsel and initially to reply to the question that Mr. Justice Brennan posed to Mr. Cox, regarding the relationship between NEPA and this Court's decision in Arrow.
The Court's decision in this case applying NEPA is a very different decision, a very different set of facts than the decision involved in Arrow.
Arrow involved judicial interference with rate making.
Arrow involved a court deciding what a reasonable rate would be, issuing an injunction on that basis.
This case has nothing to do with that kind of exercise of discretion which we acknowledge is committed to an agency.
This case deals with clear, unambiguous procedures that the National Environmental Policy Act imposes upon all federal agencies not including the courts who are not agencies under the APA and whom we submit are not agencies under NEPA.
The significance of the difference between the Arrow set of facts and the set of facts in this case is that in Arrow, it could be said that a court was interfering with the Congressional decision to commit discretion to the agency.
Here, what the court is doing is enforcing on what is perhaps the most recalcitrant agency among federal agencies with respect to NEPA the clear Congressional requirements.
It is working to enforce Congressional requirements, it is not working against the discretion of an agency which Congress has committed to that agency.
What the Court did was see that the Commission from the beginning of the National Environmental Policy Act on January 1, 1970 had done nothing to attempt to accommodate its practices to the requirements of NEPA.
The court was faced with a situation where as early as October 1970, the Council on Environmental Quality which in answer to your question Mr. Justice White is the agency which we could say would have the responsibility to interpret NEPA, had told the Commission, it's your job to begun to comply with NEPA.
It's particularly your job to apply its procedures in order to fulfill the explicit policy, that Congress set forth in NEPA.
The clearest policy, the clearest substantive policy that Congress set was to enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.
Justice Byron R. White: What did the agency understand (Inaudible) either suspend it or didn't suspend it right?
Mr. John F. Dienelt: I don't believe that the agency has said either way on that question.
Justice Byron R. White: They have never, unless they disagreed that it was satisfy the Act of a – did an adequate job during the process has considering whether the rate is just and reasonable?
Mr. John F. Dienelt: That was we submit the issue before the District Court.
The CEQ didn't say one way or another.
It clearly --
Justice Byron R. White: So and that's one of the issues here.
So unless the agency is really disagreed with the Commission's position in this respect --?
Mr. John F. Dienelt: Your Honor we don't have a case statement in this record from the agency with respect to the general question of whether the Commission is obliged with respect to rate increase proposals to submit an impact statement in a 30-day period.
We do have statements from the CEQ criticizing the Commission's compliance with NEPA in this case and I submit there is a very good reason why we don't have a statement by the CEQ.
Justice Byron R. White: But that isn't an issue here?
Mr. John F. Dienelt: The issue here is not whether the Commission is obliged to file an impact statement in a every rate proceeding in a 30-day period.
That's not what the District --
Justice Byron R. White: Well, this the – it is whether the content of an impact statement submitted by the Commission that satisfies the Act?
Mr. John F. Dienelt: The issue Your Honor, I am afraid I don't understand you, the District Court held that the Commission had not complied with NEPA in this case to the fullest extent possible.
It didn't say exactly what procedure the Commission would have to comply with.
It expressly indicated that if the Commission made a good faith showing of compliance to the fullest extent possible that it would be inclined not to impose an impact statement requirement on the Commission or to indicate that its order had violated the NEPA.
The Commission has never taken the position until it arrived in court, and it was taken by its lawyers that it's an impossibility for to comply with the act in a 30-day period.
The 30-day period is something of a false issue, Mr. Justice White because rate decisions are not made, at least general rate increase proceedings which is what we are talking about are not --
Justice Byron R. White: So you are just here because the Commission could suspend for seven months and do its job?
Mr. John F. Dienelt: That's one thing the Commission could do Your Honor and other thing that Commission to do was, as it has in the most recent general rate increase proceedings, tell the railroads that they don't have special permission to file a rate within a short period of time, that they have to give the public 75 days notice or 90 days notice or whatever period of time is appropriate.
And in that time the Commission can comply with the Act of the fullest extent possible, and that I submit is --
Justice Byron R. White: You say the Environmental Protection Act gives them that power?
Mr. John F. Dienelt: Gives the Commission, not the power, not really with the power, but the duty to comply with the Act to the fullest extent possible.
Chief Justice Warren E. Burger: But doesn't that wipe out the 30-day -- doesn't that wipe out the 30-day rate-making process?
Mr. John F. Dienelt: No Your Honor it doesn't.
Chief Justice Warren E. Burger: In all cases where an environmental impact is asserted?
Mr. John F. Dienelt: In case where an environmental impact is asserted, it may well be that one doesn't exist and in those circumstances a Commission finding of no significant environmental impact, if it's based on a record and if its adequately explained or at least if the District Court can figure out what the Commission did would suffice or in review.
In some circumstances where you have a general rate increase proceeding, where you have a rate increase on recyclable materials, whether is a significant environmental impact, then we submit it is appropriate to throw out the 30-day proceeding because NEPA requires that.
But we want to stress that the 30-day issue is somewhat false, because more time is permitted to the Commission under the Act on the one hand and on the other hand NEPA's requirements as interpreted by the CEQ guidelines, and I'll refer you to the Section 10 of the guidelines is flexible to permit an agency to come to the CEQ and say look we have these problems, this is how we want to comply with the Act, this is what we think is compliance to the fullest extent possible and the CEQ would say alright.
But in further response to what Mr. Justice White was asking, “Commission never went to the CEQ.”
The CEQ's communications with the Commission have indicated that the Commission has to comply with NEPA, it has to begun and it should have been gone on January 1st 1970 to consider the effects of its permitting rights to continue to go into the effect on recyclable materials and it hasn't done that.
Justice William J. Brennan: Let's see if I have understand you.
Your argument is that to comply with NEPA's mandate that the Commission shall adjust its procedures?
Mr. John F. Dienelt: That's correct Your Honor.
Justice William J. Brennan: If within the 30 day period it's not possible to comply with the procedure for an impact statement, then the duty of the Commission is to use the option open to it of suspend it for seven months.
Is that your argument?
Mr. John F. Dienelt: Our argument is that's one possibility that the Commission could employ to comply with the requirements of the Act.
There are others --
Justice William J. Brennan: In other words if the Commission can't say, we can't do within the 30 days and therefore it's impossible, because they could suspend and do it within the suspended period, is that right?
Mr. John F. Dienelt: Even if they didn't suspend Your Honor, they could do something.
Justice William J. Brennan: But what else besides suspending?
Mr. John F. Dienelt: For example they could --
Justice William J. Brennan: Let's take the assumption that it's really not possible within 30-day time period?
Mr. John F. Dienelt: And let's take the assumption that 30 days is what their limit too which I think is not the case, but within the 30-day period they could submit an outline of a draft environmental impact statement.
They could take their general experience and the evidence that the parties submit, and the evidence that their own staff develops which they didn't do in this case, and they could make a decision; a good faith decision whether or not there was a significant environmental impact.
As the Solicitor General earlier argued, if that decision is supportable, then they don't have any further requirement.
If it's not and if there is an --
Justice William J. Brennan: What I might say about your argument Mr. Dienelt is what's the significance of 30-day limitation?
Does it have any significance in connection with compliance for NEPA?
Mr. John F. Dienelt: There maybe circumstances where for example the railroads propose a change in one rate, and it will go into the effect in 30 days and in that period if environmental impact may exist and it's alleged, we submit the Commission should consider whether there is a significant environmental impact from say that one rate and whether --
Justice William J. Brennan: Well, now let's take the situation where -- it can't be done within 30 days, then in face of the requirement that something be done within 30 days, what is open to the Commission?
Mr. John F. Dienelt: Among the things that would be open to the Commission would be to file a draft impact statement, to file an outline of draft impact statement to indicate how it's going to go about complying with NEPA, to indicate the process it's going to follow, to make a decision in good faith that there is no significant environmental impact.
Justice William J. Brennan: But all of this had -- one or the other of those things must be done within 30 days?
Mr. John F. Dienelt: That's within in the time period that the Commission has.
Justice Byron R. White: What other --
Justice Thurgood Marshall: Within 30 days?
Mr. John F. Dienelt: It is not, Your Honor in a general rating increase proceedings as a practical matter.
Justice Byron R. White: What – you said they work them into 30 days, why aren't they?
Mr. John F. Dienelt: Because the railroads when they come in with a request raise general rates, as I understand it as now as a practical matter you have to come in with what's called a master terrier instead of coming in as I understand it, with an indication of what the rate on Scrap on between Buick and Omaha is and for every other rate in the country they come in with general guides.
This doesn't comply with other provisions of the Interstate Commerce Act as I understand it, meaning Section 4 and others.
So they have to ask for a special permission as a practical matter whatever the detail --
Justice Byron R. White: (Voice Overlap) either your ask for we'll suspend for seven months?
Mr. John F. Dienelt: That's one of the --
Justice Byron R. White: But other options that Commission has?
Mr. John F. Dienelt: You'd have to ask for a special permission in order to be able to publish a rate that doesn't comply with all of the other requirements of the Act, which you can do.
If you can indicate what your rates are, you don't need the special permission, you can go in for 30 days otherwise, you will have to take longer.
The Commission can then tell you how much notice you have to give and in the last three general rate increase proceedings it's been something like 75 days, 45 days, 60 days, it's a flexible time period.
Justice Byron R. White: But the Commission said even if the (Inaudible) filed, it doesn't comply with the general regulations.
All the Commission could was suspend it for seven months until they have a proceeding and make the decision.
Mr. John F. Dienelt: That's the Commission's authority in terms of --
Justice Byron R. White: Oh!
Yeah, but that is --
Mr. John F. Dienelt: Yes, that is part of the leverage under the suspension --
Justice William J. Brennan: Well, but do you – area you saying that in circumstances where no other way of doing it, is available to Commission, the Commission must suspend them for seven months?
Mr. John F. Dienelt: No.
No, we are not trying to get into question of rate making.
What we say is the Commission must comply with NEPA to the fullest extent possible.
That's a flexible provision in this context and in this case, the district court found no effort, no good faith effort to comply and that's the basis of the injunction in this case.
It doesn't extend to the broad range of questions that we have been discussing.
Chief Justice Warren E. Burger: Well, didn't the Commission -- didn't the Commission say that the impact was so tenuous that there is nothing to it and it did not need, isn't that the effect --
Mr. John F. Dienelt: No Your Honor, it said and all it said was that there will be no -- it appears that there will be no significant effect on the environmental policy, on the human environment, under the National Environment Policy Act.
It didn't explain the basis for that and the district court wanted to know, how did it find that.
It had said in other rate increase proceedings that it was granting hold downs on recyclable commodities, in other words, not giving the railroads all they wanted for environmental reasons and it said in a draft impact statement, in this case that there might be a significant impact.
It's behavior was entirely ambiguous and the district court was confronted with what we submitted properly called boilerplate and that boilerplate, the Commission has used in virtually every order since 1970 when NEPA took effect.
The Commission has simply not made an effort, in this or any other case to comply with the Act.
The court found that and that was the basis of it's ruling under NEPA.
If I may go on to the question that I believe you asked Mr. Chief Justice Burger regarding legislative history of NEPA and the power of the court to issue an injunction which would extend beyond the seven month period.
It's true that there is nothing in the legislative history regarding the Interstate Commerce Commission's responsibilities.
What is in the statute, the statute itself are two things which we consider to be significant.
First the requirement that agencies began to accommodate their procedures to the requirements of NEPA, an immediate and a continuing requirement which was confirmed almost immediately after the Act was passed by a Presidential order, number 11514.
The second thing is Section 103 of NEPA, which says to an agency, “if you have a problem, if you can't comply with the Act” and in this case compliance might be suspending for even more than seven months while they study, we don't say, it would have to be, but it might be, “then you come back, you go to Congress and you say, look we found this problem, we need to resolve it.”
Well, the Commission didn't do that.
The Commission seems to think that there is no problem, but if we reach the point of an injunction extending beyond seven months, we submit we have a conflict between a statute NEPA which to be effective may require that an injunction issue until the Commission is complied with it's obligations under NEPA and another statute, the ICC Act which limits the Commission to seven months.
In this circumstance, we think that the conflict in the light of the Commission's behavior ought to be resolved in favor of affirming the district court's very effective action.
I would to like to leave the standing question principally to the brief.
I believe that there really is no serious issue here.
The plaintiffs in this case are injured.
They alleged injury in fact.
This case doesn't simply involve five law students and it's not an academic exercise for them.
The conservation groups that I represent, represents a 130,000 citizens.
These people use and enjoy the environment.
There can't be any dispute about that.
These people are affected in their use and enjoyment of the environment by the failure to comply with the requirement of NEPA that we maximize recycling.
Chief Justice Warren E. Burger: How was that membership figure established in the record in this case?
Mr. John F. Dienelt: We alleged the membership of each of the organizations in our complaint Your Honor and the --
Chief Justice Warren E. Burger: Beyond the allegation?
Mr. John F. Dienelt: That was as I was going to address Mr. Justice Rehnquist's question, there was no proof put on with respect to the, no testimony taken I should say, with respect to our membership.
We would be shocked if anyone would challenge, the fact that we represent this large number of members or that those people are -- enjoy the environment and certainly since this --
Justice Thurgood Marshall: What if in another way how could anyone challenge?
Mr. John F. Dienelt: I suppose and I was going to suggest that this in response to the claim of the railroads that our allegations were not sufficiently precise that they take discovery if they want.
When we go back, if we go back --
Chief Justice Warren E. Burger: You mean they should explore to see if your allegation is correct?
Mr. John F. Dienelt: If they wish to challenge such a basic thing as the veracity of our membership.
Chief Justice Warren E. Burger: Well, isn't that form bar over the phrase that you use, isn't that form of a boilerplate allegation than the complaint for a standing?
Mr. John F. Dienelt: Well, it's accepted boilerplate and it is also something that we can prove if we are out to it.
This was a preliminary injunction Your Honor and when we go back if we go back, we can put that kind of proof on.
Justice William H. Rehnquist: It wouldn't be unusual I suppose to have a preliminary injunction heard on the affidavits without oral testimony?
Mr. John F. Dienelt: No, Your Honor I don't believe so and certainly there was evidence in the record with regard to the effect of freight rates on recycling which is the other part of the allegation of injury, but the proof was that, each of these allegations are provable, the environmental groups alleged in injury in fact, which we submit a sufficient Sierra Club.
Justice Potter Stewart: Well, what's the size of your membership got to do with the question?
What on earth has it got to do with the question?
The size, the number of your members?
Mr. John F. Dienelt: Nothing, one point person is --
Justice Potter Stewart: If anything, if Sierra holds anything, it holds that?
Mr. John F. Dienelt: That's correct Your Honor, I agree.
I was responding to the point about the five law students.
One law student, one person --
Justice Potter Stewart: One law student or a hundred million, doesn't have anything to do with the problem of standing?
Mr. John F. Dienelt: That's correct, Your Honor.
Justice William H. Rehnquist: Insofar as the procedural posture of the case and it is your position that you are entitled to have your allegations taken as true but by the same time token I suppose you are bound by it you can't go beyond that, if there wasn't an oral testimony in the court?
Mr. John F. Dienelt: Well, that's correct Your Honor and there was evidence in the record regarding effects of recycling which it seems to me is the essence of the claim of lack of standing usually a question on the merits, do we have some sort of standing to litigate this issue on the merits because we have alleged a sufficient effect as a result of the rate increases and we submit there was impact on that.
Justice Byron R. White: If any citizen in case of higher prices challenge the consequence of a price board's increase -- order authorizing an increase in meat prices.
Mr. John F. Dienelt: I would submit he had standing, he might not prevail on the merits Your Honor but he is -- and in fact --
Justice Byron R. White: He does have a --
Mr. John F. Dienelt: He satisfies the injury in fact half of the standing test, I am not, I can't respond to the zone of interest question there, because I don't know what the statute is but I don't know what the statute is here and it's need and it creates a right to submit on any citizen to seek to obtain from the government an impact statement.
Justice Byron R. White: The Sierra or the membership is irrelevant for almost any citizen?
Mr. John F. Dienelt: Any citizen Your Honor that's correct.
Justice Byron R. White: And if it isn't right about any citizen, if that isn't correct about any citizen, it isn't correct about your claims?
Mr. John F. Dienelt: That's correct, Your Honor.
We have a position here taken by the government and railroads in essence that if it's any citizen and he is injured to the same degree as any other citizen then no citizen has standing and we submit that's a ridiculous rule.
Justice Thurgood Marshall: He gets that right from NEPA?
Mr. John F. Dienelt: Pardon.
Justice Thurgood Marshall: You get that right from NEPA?
Mr. John F. Dienelt: We get that right from NEPA and also from from the --
Justice Thurgood Marshall: Well, where do you get it in NEPA?
Mr. John F. Dienelt: Well, the review here is under the new state procedure.
Justice Thurgood Marshall: Where do you get the right to sue in a Federal court or any other court in NEPA?
Mr. John F. Dienelt: There is no specific statement in NEPA providing a citizen suit provision.
There is the statement in NEPA that the citizen shall enjoy a healthy environment.
There is, I would point out to the Court, although this isn't in our brief, the testimony of the Council on Environmental Quality in June of 1971 before the House Committee on Fisheries and Wild Life Conservation regarding a citizen action bill in which the council, the agency which was responsible for interpreting NEPA says that council takes the position that the National Environmental Policy Act and other similar environmental protection legislation confers standing on concerned citizens and citizen groups to challenge violations of that legislation.
We submit the standing issue is clear.
Briefly, with respect to the question of reviewability, to point out that nothing in Arrow dealt specifically with reviewability, it dealt with injunctive relief.
We can have review under NEPA and still have an injunction not issued and there is no indication in the ICC Act, a clear and convincing legislative intent to preclude review.
There is no indication in NEPA that review is warranted and that the government here is seeking an exemption for the ICC at least with respect to suspension decisions which doesn't require any other Federal agency.
So we submit that the plaintiffs here have a standing under the Sierra problem that this decision by the Commission, the suspension order can be reviewed.
That on review of it the district court properly found that the Commission had taken no steps in this or any other case to attempt to comply with NEPA to the fullest extent possible.
That that was appropriate and that an injunction should have issued and that this Court should have affirm that injunction.
Chief Justice Warren E. Burger: Thank you gentleman.
The case is submitted.