*1 UNITED STATES al. v. STUDENTS CHALLENG et
ING REGULATORY AGENCY PROCEDURES
(SCRAP) et al. Argued February 28, No. 72-535. 1973 Decided June 1973* * Together 72-562, with No. Aberdeen & Co. Railroad Rockfish Regulatory Agency Challenging v. et al. Students Procedures (SCRAP) al., appeal et from the also same court. *3 J., opinion Court, delivered the Stewart, in which BreNNAn Douglas JJ.,
and joined; in BlacKMUn, I and II Parts of which JJ., joined; and and in I Marshall, Parts and III of which Burger, J.,C. joined. BlacKmuN, and White and JJ., J., RehNquist, concurring opinion, J., filed a joined, post, in which BreNNAN, p. 699. J., opinion filed an Douglas, dissenting part, post, p. in 699. White, J., opinion dissenting filed an in part, J., in which C. Burger, and J., post, joined, p. Rehnquist, J., 722. Marshall, opinion filed an concurring part post, in dissenting part, p. and in J., Powell, part took no in the consideration or decision the cases. Solicitor General Griswold the for argued cause United et in States al. him No. 72-535. With on the were Assistant Attorney Frizzell, General briefs Edward Korman, R. Kahn, Christian, Fritz R. Betty Jo and James F. Hugh Tao. B. Cox argued appellants the cause for No. 72-562. With him on the briefs were Charles A. Horsky, Boudin, Michael and Edward A. Kaier. hac vice for pro cause argued Meyers H.
Peter ap- Procedures, Agency Regulatory Challenging Students F. John was brief him on With in both cases. pellee hac pro cause argued Dienelt F. John III. Banzhaf appellees ah, Fund et Defense for Environmental vice M. Dennis brief him on With cases. both Flannery.† opinion delivered Stewart
Mr. Justice Court. initiative Act, the Commerce the Interstate
Under But railroads. remains increases rate Com- Interstate from the permission special absence increase must an seeking railroad Commission, merce Commission days’ notice to the at least provide effect. rate into new putting before public Com- 30-day period, the (3).1 During §C. 6 U. S. Independent Natural Gas brief J. McGrath filed a †Jerome urging reversal. curiae America as amicus Association of Merrigan brief for National Association L. filed a Echuard urging Inc., Industries, as amicus curiae Secondary Material affirmance. (3) in the provides: change be made Title S. “No shall 49 U. C. § joint fares, fares, rates, charges rates, charges or published by any compliance been common carrier have filed *4 thirty days’ requirements section, except with of this after the aforesaid, public published notice to the Commission and to the as in plainty changes proposed which shall state the to be made the fares, changed rates, in then force and the time when the schedule charges go effect; proposed changes or will and shall be into the by printing schedules, plainly upon shown new or shall be indicated inspection: kept open public the schedules in force at the time and to Provided, may, good That the Commission in its discretion and for shown, changes upon specified, cause allow' than the less notice herein modify requirements respect or the of this publishing, section in to tariffs, posting, filing by and of in particular either instances or a general applicable special peculiar order or or circumstances further, Provided That conditions: the Commission is authorized to of rate may suspend operation proposed
mission the the for maximum an pending investiga- a of seven months and on the of new rates. tion decision lawfulness the (7).2 S. At end of the seven-month § XL C. regulations simplification of make suitable rules and sched- fares, charges, permit rates, in ules of and classifications and to such in regulations filing change of or rules and of an amendment any fare, rate, complete charge, filing or without classification covering rates, changed fares, charges, schedules or classifications not if, judgment, public in its not inconsistent with the interest.” (7) provides pertinent in part: Title 49 U. S. C. “Whenever any stating there filed with Commission a shall be schedule rate, charge, new . . . fare, . . or . . the Commission shall have . . authority, upon complaint upon either its or own initiative with complaint, once, at and if it so orders without answer or other out by carriers, pleading upon formal interested carrier or but notice, upon hearing concerning reasonable to enter the law rate, fare, charge ; pending such . fulness . . such [or] hearing Commission, upon filing and the decision thereon the with delivering such schedule and to the carrier or carriers affected thereby writing suspension, statement of its reasons for such may suspend from to time operation time of such schedule rate, fare, defer use charge , of such . . but not . [or] longer period beyond for a than seven months when it time go effect; would otherwise into hearing, and after full whether completed fare, before or after rate, charge . goes . . [or] effect, may into the Commission make such order with reference proper would proceeding in a initiated after it thereto had If become effective. the proceeding has not been concluded and period an order made within the suspension, change proposed rate, fare, charge go . . . shall into [or] effect the end period; such but proposed case of a charge increased rate or for or respect transportation to the property, the Com may require mission order the interested carrier or carriers keep accurate account detail all amounts received rea increase, specifying by son of such whom and in whose behalf paid, such upon amounts are completion hearing may by decision require order further the interested carrier or refund, interest, carriers persons in whose behalf paid, portion such amounts were such of such increased or rates *5 effect rate into suspended may put the carrier period, investi- its completed earlier has the Commission unless rate unlawful.3 and found gation Decem- scheme, on regulatory this under Proceeding in the substantially of the railroads all 13, 1971, ber file authorization requested Commission States United nearly freight all surcharge a days’ on 5 notice 2.5% January 1972, effective 1, sought railroads a rates. The as proposed surcharge new for the rates. date produce some designed to emergency measure an interim pending revenues annually million increased $246 basis. on permanent a rate increases adoption of selective rail- surcharge, justification proposed As for the severely inadequate alleged increasing roads costs less case, In revenue increase general revenues. its last found: two had years earlier, than Commission indus- of the railroad condition financial “[T]he many try a whole, the financial status as a by individual must be to be at rail, carriers found dangerously precipitous low level. The decline re- working capital liquidity loss of has serious many truly operation. duced carriers to marginal been clearly This has most demonstrated application recent bankruptcy Penn Cen- tral. We think it undeniable number charges as its justified. any decision shall be found not At hearing involving a change rate, fare, in a charge . . . after [or] September proof the burden of upon shall the carrier to show proposed rate, changed fare, charge . . . [or] just reasonable, Commission and the give hearing shall to the questions and decision of such preference questions over all other pending it and before decide speedily possible.” as same statutory provisions Other giving suspension powers to the (g), Commission include 49 C. (c) (Motor U. S. §§ 316 Carrier Act); (i) (g), (Water U. S. C. Act); §§907 Carrier 49 U. S. C. (e) (Freight Act). Forwarders *6 a similar approaching are financial crisis.” other roads Rates, 265/267, Freight Increased parte Ex Nos. 1971, 125, 1970 and 339 I. C. C. 173. pro- of that alleged that,
The railroads since close $1 billion on their costs had increased over ceeding, $305 in increased basis, wages, an annual million including working decreased while economic indicators such as capital pointed toward an obligations increased debt ever-worsening financial condition.4
In an Commission 21, order dated December 1971, acknowledged need, particularly carriers, of some revenues, days’ increased but concluded that five notice it January and a 1972, preclude effective date “would 1, public from participation.” parte effective Ex No. 281, Freight Increased Charges, 1972, Rates and I. C. 361. 358, C. The Commission authorized the rail- to refile the surcharge roads with not less than 30 2.5% days’ and an effective date no notice, earlier than Feb- ruary 5, 1972. January 5,
On 1972, the railroads refiled the surcharge, to become on February effective 5, 1972. com- Shippers, peting carriers, and other persons interested requested the suspend Commission to the tariff for the statutory seven- period. month Various environmental includ- groups, ing Students Challenging Regulatory Agency Procedures (SCRAP) and the Environmental Fund (EDF), Defense appellees two here, protested that failure to sus- pend the surcharge would their cause members “economic,
4 Figures reported to the Commission indicated that the net work ing capital of the I Class ending railroads months Sep 30, 1971, only tember $75.4 was million, approximately $33.7 million year-end less than the figure. Long-term maturing debt within year September one 30, from $43.6 higher million than Equipment December 1970. obligations at the end of 1970 $4,448 million, were or almost twice the total they Specifically, harm.” aesthetic recreational the use discourage would structure the rate claimed use of new promote materials, and “recyclable” adversely thereby scrap, compete raw materials unwarranted by encouraging the environment affecting activities. extractive and other lumbering, mining, *7 allegedly were groups environmental of these members use of their and products, more for finished pay forced to because impaired was allegedly and forests streams of raw and extraction unnecessary timber destruction recyclable and otherwise materials, the accumulation of replied The railroads liquid solid and waste materials. ma- recyclable increase, a general since this was rate any competitive less relative terials would not be made past rate general to and in the commodities, other scrap had discouraged increases not the movement materials. February 1, 1972,
The Commission an order on issued shortly automatically surcharge before the would have become recognized effective. It that “the railroads have a critical need for additional from revenue interstate their freight recently charges rates in offset, part, curred increased operating costs,” announced its de cision not to suspend the surcharge for the seven- 2.5% statutory period.5 anticipation month In pro posed permanent selective by increases to filed railroads and to complication avoid further of the tariff rates, specified Commission refusal its sus pend was upon conditioned setting carriers’ an ex piration date for the of no surcharge later than 5, June 1972.6 The Commission ordered the investigation into 5The order of unreported. the ICC is 6 The imposed Commission also aas condition on its refusal suspend the exclusion of increased "on freight rates in trailer bodies, semi-trailers, vehicles or cars, export on flat containers on its De- instituted which had been the railroads’ rates the carriers abeyance be held until 21 order to cember rate permanent file the indicated requested permission ap- respect to the basis. With on a selective increases found the Commission pellees’ arguments, environmental no sig- will have general that “the involved increase nificant effect on the movement traffic adverse railway or on environment quality of the human within meaning Environmental [National] Policy ofAct 1969.” permanent proposed increases, selective averaging
4.1%, subsequently were filed with Commission, parties again requested proposed various that these rates be suspended. By also 6, order served March Commission grant did not request the railroads’ to have the selective April 1, increases into go effect they had sought but it allowed republish the carriers to *8 their to rates become effective May 1, 1972, upon not days’ less than 45 public. notice to The the carriers did republish the on April and rates, 1972, the Com- 24, mission entered an order suspending proposed selec- tive increase the full seven-month period by allowed statute, or to and including November 1972.7 investigation into the increased rates continued. Since the selective were supplant to increases the tem- porary surcharge, they and since had been suspended, the Commission modified its February order and authorized the railroads to eliminate the June expiration date for import traffic.” Since such increases had proposed only by been the western and southern carriers and not carriers, eastern such would, increases view, the Commission’s disrupted have existing port relationships.
Finally, the Commission conditioned its action on the provision proposed that surcharge apply shipments would not originat- to ing prior February to 5,1972, moving and arrangements. under transit 7 The March 6 April 24 orders of the unreported. ICC are surcharge collecting continue surcharge to 30, 1972. until November
I against suit present filed the May 1972, SCRAP On District the Commission States United along seeking, of Columbia District for the Court enforce- restrain injunction preliminary relief, other 24 orders February April 1 and of the Commission’s ment surcharge. to collect the railroads allowing 2.5% it was complaint amended its SCRAP stated law by five stu- formed association unincorporated “an purpose primary 1971. Its dents, September, ... for its human environment of the quality to enhance the . . . .” To establish stand- members, for all citizens alle- many of the repeated suit, SCRAP ing bring this parte in Ex Commission it had before gations made eco- of members “suffered It claimed that each its directly a result nomic, harm as recreational and aesthetic railroad impact the adverse environmental actions modified the Commission’s freight structure, Specifically, alleged in Ex 281.” date Parte SCRAP pay each of more for its members was caused products, finished that each of its members “[u]ses re- forests, mountains, and other natural streams, rivers, sources surrounding Washington Metropolitan area and at legal his residence, camping, hiking, fishing, sightseeing, and other pur- recreational aesthetic [and] poses,” and these uses have been adversely affected *9 by freight the rates, increased that each of its members breathes the air within the Washington metropolitan area and the area of legal his residence and that air this has suffered pollution increased caused by the modified rate structure, and that each member has been forced to pay increased taxes because of the sums which be must expended dispose of to otherwise reusable waste materials. the complaint
The main thrust SCRAP'S April 24, insofar February and decisions of Commission's un were they suspend surcharge, declined 2.5% a failed to include Commission had lawful because the required statement as impact detailed environmental Act of (2) Policy National Environmental (C) of the § requires NEPA (2) 42 U. C. 4332 (C). S. (NEPA), “every report or on such recommendation statement proposals major and other Federal actions legislation affecting quality of the human environment significantly Ibi d.8 contended SCRAP that because provides pertinent §4332, part: 42 U. S. C.
8 Section Congress that, “The and directs authorizes the fullest extent possible: regulations, public policies, laws of United (1) interpreted shall States be with administered accordance policies chapter, (2) agencies set forth this all of the Federal Government shall—
“(C) every include in report proposals recommendation or legislation major significantly affecting and other Federal actions quality environment, of the human detailed statement responsible official on—
“(i) impact proposed action, the environmental “(ii) any adverse environmental effects which cannot be avoided the proposal implemented, should “ (iii) proposed action, to the alternatives “(iv) relationship local between short-term uses man’s environment and the long-term maintenance enhancement of productivity, and any
“(v) irreversible and irretrievable commitments of resources would be involved in proposed action should it be implemented. any making
“Prior to statement, detailed responsible Federal official shall consult with and any obtain the comments of Federal agency jurisdiction by which has or special expertise law respect any impact Copies environmental involved. of such statement and the comments and views of the appropriate Federal, State, and agencies, local which are authorized develop and enforce en- standards, vironmental shall be made available to President, *10 Com recycling, impact upon adverse alleged of its constituted surcharge respect to the action mission’s affecting significantly action federal major a environment. appellees also groups, environmental
Three additional a group plaintiffs, as to intervene allowed here, were defendants intervened as appellants here, railroads, a single district After surcharge.9 support the 2.5% Quality public . and . . and to Environmental the Council existing agency review through the accompany proposal shall processes.” and Con Fund, Parks National Defense Environmental The in League of America Association, and Izaak Walton servation by standing made allegations as to plaintiffs. as tervened by made SCRAP. groups to those were similar each of these alleged EDF, follows: example, as persons 32,000 com- membership of has over “EDF a nationwide scientists, educators, lawyers citizens dedicated and other posed of our and the wise use of protection of our environment to the personal has interest of EDF’s members natural resources. Each safe, healthful, productive environment as the maintenance of in possible. members have EDF's free from waste substances as is may financially part they in to EDF so that obtain contributed adequate legally protected environmental representation of their individually they interests, representation which could not otherwise (c) NEPA, Each EDF’s has under afford. members responsibility preservation to contribute ‘a enhancement environment,’ they responsibility part fulfill in becoming contributing a member of and to EDF. freight charges rates and
“The increased Ex 281 and Parte underlying structure, the continuance of the rate which discriminate against secondary (recyclable) materials, movement of cause will injury adversely EDF members individualized affect them pastimes. one or more of Specifically, their activities each (i) EDF has pay member: been or will be caused to more products place, expensive in the made market more both recycled manufacture, non-use materials their and the need comparatively to use energy processing more primary raw mate opposed secondary (recyclable) rials materials; (ii) uses *11 motion to dismiss and had denied the defendants' judge order, temporary restraining for a motion SCRAP’S pur- convened statutory court was three-judge district motion the suant to 28 decide 2284, 2325, §§ U. S. C. to dis- preliminary injunction for a and the cross-motion miss complaint. the July 1972, opinion,
On the District Court filed an 10, injunction Supp. prohibiting F. an entered 189, the “from railroads permitting,” Commission “from collecting” surcharge “insofar as that 2.5% surcharge goods transported purposes relates to being recycling, pending further order of this court.” rejected
The court first appel- the contention that lees were standing they without sue allegedly because had no more than “a general seeing interest id., law is enforced,” 195, and distinguished our recent Sierra Club v. Morton, 405 U. decision on the 727, S. forests, streams, mountains, rivers, nation’s and other natural re- camping, fishing, sources for hiking, sightseeing, and other recre- ational and purposes. aesthetic These uses have been and will adversely continue to be affected freight to the extent that structure, rate as modified 281, thus far in Ex encourages Parte virgin timber, unnecessary destruction of extraction of non- resources, renewable discharge and the accumulation other- recyclable wise materials.” 10The court dismissed part moot that complaint re lating to the February Commission’s 1 order because that order expired had own its terms on June 5. Since the environmental groups appealed have judgment not below, from the we have before only us for review regard the District Court’s action with April Commission’s 24 order that allowed surcharge to continue 30, until November The court also concluded that since the Commission had taken no respect final action with to the increase, selective 4.1% lawfulness of that ripe tariff was not for review. The did, court however, jurisdiction retain over the case to review the final order of the Commission. Club, en- in Sierra petitioner unlike that,
basis members their alleged had here groups vironmental resources other mountains and streams, forests, used the disturbed use was this and that area Washington in the re- nonuse of caused impact by the environmental cyclable goods. an power grant its found that the court
Second, Arrow by our decision barred was not injunction Co., 372 U. S. R. Transportation Co. v. Southern (7), § 15 49 U. S. C. enacting where we held that *12 “in the Commis- intentionally vested had Congress and with- suspend” power to sole and exclusive sion the to power any judiciary pre-existing “from the drew that NEPA relief.” The court reasoned grant injunctive courts to federal authority on the “implicitly confers in violation of NEPA's any action taken enjoin federal is “so as the review procedural requirements” long procedural whether the to determination as to confined F. Supp., 346 of NEPA have been followed.” requisites 197 at and n. 11. concluded
Finally, merits, to the the court turning April suspend the 24 decision not Commission’s surcharge statutory period seven-month the the “ ‘major qual- significantly affecting Federal action the ” Id., ity of the human environment.’ at 199. On premise an re- impact environmental statement is quired arguably “whenever have the action will an ad- id., verse impact,” 201, environmental the court held sufficiently an danger impact that “the adverse real require a statement this case.” Ibid. stay injunctive The District Court declined to its order appeal pending Court, July to this and on 19, 1972, The as Circuit Justice the District of Co- Chief Justice, applications denied Circuit, preliminary lumbia stay injunction. U. S. On December 1972, 18, we jurisdiction probable noted of the appeals by filed States, United Commission, railroads. U. S. 1073.11
II The appellants challenge appellees’ standing sue, arguing allegations the pleadings to stand- subsequent directly While validity events do bear not on the granting the District preliminary injunction, Court’s action in they highlight problems background do that hover in the this litigation. 1972, 4,
On October report the Commission served its and order parte approving, in Ex exceptions, general with some increases Freight Charges, 1972, filed the railroads. Rates Increased report, although gave 341 I. C. C. 290. In that the Commission aspects extensive consideration to environmental the rate in- creases, impact it declined to include a formal environmental state- ment it because concluded that actually its actions “will neither potentially significantly quality nor affect the the human environ- Id., ment at 314. selective increases were to become effective on October delayed but the Commission until November 12 the effective recyclable
date for rate increases on commodities in order to allow parties. submission of comments Upon interested the sub- *13 comments, mission of Commission, critical the unreported in an 8, order on served November reopened proceeding in the rate parte Ex 281 for further of recyclable evaluation the rates on com- modities, proposed and ordered the selective tariff on increases suspended those period commodities full for the seven-month author- by Accordingly, ized respect statute —until June 1973. recyclable proposed commodities on which the selective had increase suspended, been expiration the Commission extended the date surcharge 10, 1973, until expiration June the date for the 2.5% suspension of the selective increases. the But Commission acknowl- edged power surcharge the recyclable to collect the on these by preliminary commodities was barred injunction by the issued the District present Court in the subject case and which is the present appeals. short, temporary surcharge In would 2.5% throughout have period recyclable been in effect this on commodities but preliminary injunction. District Court’s resilient Whether deliberately the Commission surcharge beyond continued the the time it would supplanted by have been the selective increases in order to under and insufficient unsubstantiated, vague, ing were Morton, The supra. Club v. Sierra decision our recent in Sierra petitioner unlike respond appellees continuing injunction District Court’s surcharge give the the Commis- litigation, and whether mooting this avoid effect and thus (7) by suspending S. C. 15 beyond powers its under U. sion acted period and treat- second seven-month increases the selective effect, continuing are having injunction Court’s as ing the District cases maintains that these party No now questions here. not raised ICC, 219 S. v. U. Terminal Co. moot. Cf. Southern are Pacific Court: in the District appellees motions filed Both sets injunction against the Commission’s preliminary sought a SCRAP intervening plaintiffs order, other and EDF and the October 4 n sought complaint supplemental file an amended and leave to January 9, 1973, deferred requested the court On other relief. request SCRAP’S the EDF motions and denied consideration as a result injunction. The court found that preliminary for a order, rate neither selective November Commission’s recyclable surcharge temporary be on could assessed increases nor the Consequently, found, injunctive relief the court no commodities. permanent rate in- justified materials. those While being parte Ex then 281 was approved crease the Commission although commodities, shipments of all other collected on statement, concededly impact file had failed to an Commission appears danger impact an court concluded that “the adverse sufficiently speculative . be . it would be unsound . grant preliminary The court “The record in- relief.” continued: many dicates that railroads are in dire financial straits —some verge badly being bankruptcy need the revenues now —and obtained under the Commission’srate increase. The increase amounts year, per $340 to some million this were revenue flow halted easily recouped it could not it appear should later that no NEPA necessary.” statement was of neither merits the Commission’s January October 4 order nor the District Court’s 9 decision are us, express opinion before and we therefore on them. no *14 7,May 1973, On the Commission served its final environmental impact relating recyclable statement to the selective rate increases on commodities. It proposed concluded increases would have significant no Contending on adverse effect the environment. impact inadequate, statement sought EDF to and SCRAP sufficiently they Club, alleged that were pleadings their meaning within the “adversely or “aggrieved” affected” (APA), Procedure Act of 10 of the Administrative § allega- 702,12 they point specifically C. and U. S. § moun- tions that their members used the forests, streams, metropolitan in and resources tains, Washington other area for and camping, hiking, fishing, sightseeing, by use environmental this was disturbed the adverse impact recyclable caused of goods brought the nonuse about The Dis- rate increase those commodities. trict Court to withstand found these sufficient allegations agree. motion dismiss. We Club, petitioner long-
The large Sierra “a established organization, with a commitment historic the cause of from protecting heritage Nation's natural our depredations,” man's a declara- S., 739, sought U. tory judgment an injunction offi- restrain federal from cials approving the creation an of extensive ski- development resort King the scenic Mineral Valley Sequoia National Forest. The Sierra Club claimed standing to “public maintain its interest” lawsuit be- “ cause it had ‘a special interest the conservation and the sound maintenance the national parks, ref- game uges country Id., forests of the ....’” at 730. We held those allegations insufficient.
enjoin collection the selective rate 7, increases. On June temporarily District Court enjoined the collecting railroads from recyclable the selective increases on 8, 1973, commodities. On June Justice, Chief as Circuit Justice for the District Columbia Circuit, stayed the injunction District Court’s pending further order of this Court. 21 petitioner Like the Chib, Sierra appellees here base their standing to upon APA, sue 5 U. S. C. provides: person “A suffering legal wrong agency because action, or ad- versely affected aggrieved by or agency action meaning within the thereof;” statute, a relevant judicial is entitled to review *15 Processing in Data decisions prior our upon
Relying Collins, Barlow v. 150, S. Camp, 397 U. v. Service APA conferred 10 of the that § we held 397 U. S. only action of agency judicial review obtain standing action challenged “that show could who upon those alleged where 'injury them had caused fact/ of the zone within 'arguably interest to an injury was by the statutes regulated’ or protected be interests to violated.” have claimed to were that agencies 733.13 S.,U. made it clear we in fact” “injury interpreting
In who could show to those was not confined standing that Processing and Data harm,” although both “economic said, we injury. Nor, kind had involved that Barlow injury persons same many shared the fact that could from review seeking disqualify reason to be sufficient any who had fact suffered person an action agency’s and environ- explained: “Aesthetic injury. Rather, we impor- well-being, are like economic well-being, mental society, in our of the life quality tant ingredients interests are shared particular fact environmental make them rather than the few does not many through judicial deserving legal protection less Id,, process.” Consequently, at 734. neither the fact only a harm their appellees here claimed use enjoyment of the natural resources of Wash- ington nor the fact that all those who area, use those unnecessary Club, any question As Sierra is it to reach con cerning scope application “zone interests” test or its It undisputed this ease. is the “environmental interest” appellees protect pro that the seek to is within the interests to by NEPA, unnecessary tected and it to consider the various allegations of economic harm on which appellees also relied pleadings their and which the Government contends are outside purposes the intended of NEPA. deprives them harm, suffered the same
resources standing. *16 im- Club,
In went to stress the Sierra we though, seeking review portance demonstrating party of that the this among injured, requirement be himself the it is controversy a and gives litigant direct stake the that judicial more than prevents process from no becoming for the vindication of the of con- vehicle value interests bystanders. specific injury alleged cerned No such in Sierra Club. In that harm “will be case the asserted directly only by felt those who use Mineral King Sequoia Park, and for National whom aesthetic recreational by values of the area will be lessened highway id.,, “[tjhe ski resort,” 735, yet Sierra Club failed that it or allege would its members be affected in of any by their or pastimes the . . . activities development.” by Ibid. Here, contrast, appellees specific claimed and allegedly of illegal action directly Commission would them in harm their use of the natural resources of the Washington Metropolitan Area.
Unlike the specific and geographically limited federal of action which petitioner complained Club, in Sierra the challenged agency action in this case applicable substantially all of the Nation’s railroads, al- thus legedly has an adverse environmental impact on all the natural resources of the country. Rather than a limited group persons of who used a picturesque valley in Cali- fornia, persons all utilize who the scenic resources of the country, and indeed all who breathe air, its could claim harm similar to that alleged by the environmental groups here. But we already have made it clear that standing is not to be denied simply many because people suffer injury. same Indeed some cases on which we relied in Sierra Club demonstrated the patent fact persons major affected adversely be Nation could across Environmental g., e. See, actions. Defense governmental of con (interests F. 2d Hardin, 428 v. Fund Agriculture Secretary decision affected sumers con pesticides certain registration suspend refusing to 2d 631-632 F. Ewing, 205 Reade v. DDT); taining labeling fair oleomargarine of consumers (interests Administration). Security by Federal regulated product injured fact who are persons deny standing To mean would injured, also many others are simply because widespread Government injurious and most cannot ac We nobody. questioned by actions could conclusion. cept that *17 very from different here also injury alleged
But the injury alleged Club because here the in Sierra that at issue perceptible. and is far direct the less to environment aof the construction complained about petitioner there Mineral directly the would affect specific project that far follow a Valley. Court asked to King Here, injury eventual more attenuated line of causation to the rate in- appellees complained general of which the —a of nonre- crease would increased use allegedly cause cyclable recyclable goods, compared commodities as thus resulting in the need natural resources to use more produce goods, might such some of which resources be taken from the in more Washington area, resulting refuse that might parks be discarded national Washington area. The protest appel- railroads that the lees prove could never a general that increase in rates would have this effect, they contend that these alle- gations a ploy were to avoid the injury need to show some in fact.
Of course, pleadings be must something more than an ingenious academic exercise A conceivable. plaintiff must allege that he has been or will in fact be perceptibly by harmed the challenged agency action, in which he could he circumstances imagine not that can equally And agency’s affected action. it is be capable true and clear that must be allegations plead- proof simply at trial. we deal here But per- a appellees specific ings alleged citizens harm from other ceptible distinguished them claimed who had not used the natural that were resources assert, affected.14 now these If, be as the railroads then allegations untrue, appellants were in fact have summary judgment should moved for on the stand- ing issue demonstrated to the District that the Court were no allegations genuine sham and issue raised say ap- fact.15 We pleadings cannot these urges standing who The Government us to limit to those have “significantly” by agency But, been if affected action. even we begin mean, could to define what such a test would think it we fundamentally statutory “Injury misconceived. in fact” reflects requirement person a “adversely “aggrieved,” affected” or distinguish person and it serves to awith direct in the stake litigation' though of a person outcome small—from a with a —even mere interest in problem. important We have allowed interests plaintiffs be vindicated with no more stake in the outcome vote, of an action than a of a Carr, fraction see Baker v. 369 U. S. 186; costs, $5 Maryland, fine and see McGowan v. 420; Harper Virginia poll tax, Elections, $1.50 U. S. and a v. Bd. of *18 S.U. 663. While these dealing specifically cases were not APA, adopt seewe no reason to a more restrictive interpretation “adversely “aggrieved.” affected” or Professor As put Davis has it: “The basic idea that comes out in numerous cases is that an enough identifiable trifle is standing fight for to a out question principle; the trifle is the standing basis for and the supplies principle Davis, the motivation.” Standing: Taxpayers Others, 601, and 35 U. Chi. L. Rev. Davis, 613. See also K. Ad ministrative Law §§22.09-5, 1970). Treatise (Supp. 22.09-6 object The railroads allegations the fact the were not precise specific more no named, “forest” was that there was no —that any assertion lumbering camp existence or other extractive facility They in they the area. claim that way had no to answer such allegations wholly specifics. were But, barren if that if which, proved, allegations prove their not could pellees injured persons among those squarely them place would entitled under action, Commission’s fact in The review. Club to seek of Sierra import clear appellants’ denying correct was Court District suf- allege complaint failure to dismiss motion this lawsuit. bring standing ficient
Ill conven- whether, under We not reach the issue need jus- was the District Court equity, standards of tional we a because preliminary injunction, in issuing tified to enter jurisdiction court lacked concluded that the have any injunction an event. from Commission enjoined Court District “collecting,” the railroads from
“permitting,” recyclable interim commodities. surcharge 2.5%' authority “on Finding implicitly that NEPA conferred enjoin any the federal courts to action federal taken violation of NEPA’s procedural requirements,” it Supp., F. concluded that decision in Arrow our Transportation Co. v. R. Co., Southern 372 U. S. did power not affect judicial injunction an issue the cir- cumstances of this case. We agree. cannot
In Arrow, suspended had Commission railroad’s proposed statutory rates seven-month period, voluntarily the railroad had proposed deferred rate really problem, were the railroads could have moved for a more statement, definite see Fed. Rule Civ. (e), Proc. 12 cer- tainly discovery normal civil devices were available to the railroads. Similarly, District Court cannot failing faulted for to take evidence standing. on the issue of This case came before the court on motions to dismiss preliminary injunction. and for a If the thought necessary railroads that it evidence, was to take they or if summary judgment believed appropriate, they could have moved for such relief. *19 had months. When the Commission
for an additional five
railroad
period,
a final
within that
the
not reached
decision
In
new rates.
a suit
adopt
announced
intent
its
enjoin
effectuating
the railroad from
that
brought
power
held that
were without
change, we
the courts
history
issue
an
From
injunction.
language
such
(7)
we concluded
Interstate Commerce Act,
had
Com-
Congress
power
vested
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final
suspend
mission to
rates
its
decision
pending
deliberately
judi-
their
had
extinguished
lawfulness,
power
cial
grant
The factual
such relief.
distinctions
present
inconsequential.
between the
cases and Arrow are
It
is true
injunction
sought
Arrow was
statutory
period
after the
expired
seven-month
had
represented
thus
an attempt
judicially
to extend
suspension
injunction
while here the
period,
was issued
during
suspension
period. But Arrow
grounded
on the
of power
any injunc
lack
grant
the courts to
tion
finally
before the Commission had
determined the
rates,
lawfulness
and that holding did not de
pend on the fact
Com
availability of the
mission’s power of suspension
passed.
had
Indeed,
federal court decisions
approved
cited and
in Arrow
involved
where
instances
the courts had been asked to
enjoin rates during
statutory
period.
sevenmonth
g.,
See, e. M. C. Kiser Co.
Georgia
Co.,
Central
v.
R.
Similarly, there is no significance in the fact that, Arrow, unlike injunction in this litigation ran against the Commission as well as the only railroads. The *20 the comply could the Commission way of sus power to its exercise would court’s order injunction surcharge. the suspend pension and Commission’s with the a direct interference constitutes the suspend to or not discretionary whether decision formality and a Arrow into sheer It would turn rates. could accom federal court (7) if a effectively § amend it could what the Commission by injunction plish against rail the against by injunction directly accomplish not on which federal court decisions the And, again, roads. which the part Arrow most cases relied were the compel they power to that were without had held courts g., e. suspension. See, a grant Commission to rate the States, Luckenbach supra; Corp. Bison S. S. v. United States, States, supra; Carlsen v. United S. S. Co. United v. States, supra.16 United supra; Freeport Sulphur cf. Co. v. only arguably the distinction between Thus, significant Arrow here Commis present the and the litigation is comply However, sion failed to with NEPA. we allegedly with the District Court that NEPA has agree cannot (7) implicit amended sub and created an silentio exception judicial to Arrow so that in- power grant suggests April
16 EDF the the order of Commission was finding surcharge "just reasonable,” in fact final order the simply suspend surcharge. not a refusal But Commis “just sion’s surcharge reference to the reasonable” nature of the commonly a preliminary assessment in suspension made orders. See, g., e. suspension quoted Naph-Sol Refining orders Co. States, 531; v. United Supp. 530, Mayer 269 F. Oscar & v. Co. States, United Supp. 268 F. represent 978-979. It did not final any determination particular Commission that rate was just and reasonable. Indeed made Commission it clear in its February 1 order surcharge prescribed was not considered a rate meaning Grocery Atchison, within the of Arizona v. Co. T. & R. Co., S. F. subject 284 U. S. and was complaint investigation under Act. NEPA, has been revived.17
junctive relief this case major reversing federal efforts at of the recent one declares country’s environment, deterioration policy "that it of the Federal Govern continuing . practicable ment all and measures . . ... use means general in a manner promote calculated to foster *21 welfare, to conditions under which create and maintain in productive man nature can exist harmony, fulfill the social, economic, requirements and other present generations 42 future Americans.” U. implement lofty § S. C. 4331. To purposes, these Congress imposed responsibilities upon a number of fed eral agencies, notably requirement most of produc a ing impact detailed environmental "major statement for Federal significantly actions affecting quality human 42 environment.” U. S. 4332 (2) (C).18 §C. But
17 ground avoiding An decision, alternative the Arrow suggested by Court, was but not relied on the District was that surcharge "agency-made” rate, here was an not a “carrier- CAB, made” rate. Moss v. 2d by F. which was cited is, however, court plainly inapposite. suspended There the CAB by proposed carriers, rates suggested place but in their “a com plete and setting innovative passenger scheme for all for the rates Id., continental United States.” at 899. It was clear that when the carriers suggested filed the by they rates the Board would not suspended. cursory “Even reading of the order makes it clear the Board file; told what carriers rates to it set forth a step-by-step requiring major formula changes rate-making in prac tices and in expected rates which it adopt.” Id., carriers to Here, by at 899-900. contrast, the level and structure of the rates proposed by were entirely the carriers. While the Commission suggested expiration an surcharge, date for the simply this was surcharge to make the expire general when the selective increases went expiration into effect. This date and the other standard con ditions attached to suspend the Commission’s refusal to the sur charge not, did any meaningful sense, transform the carrier- made rate into a Commission-made rate. 8, supra. n. See statutory history or the legislative either in the
nowhere, intended Congress indication any there language, temporarily power courts the to the federal to restore clearly had been power rates, railroad suspend Commerce Act. of the Interstate (7) away § taken NEPA indicates that fact, statutory language, any implication other repeal not intended to specifies that §4335 C. “[t]he U. S. Thus, statute. supplementary forth in are policies goals set [NEPA] of Federal existing authorizations forth those set the Act 4334 instructs that and 42 U. C. agencies,” S. statutory ob- way specific any affect the “shall [not] .” than . . . Rather any agency Federal ligations prior law, any overruling wholesale providing “pres- to review their agencies NEPA all federal requires regulations, and statutory administrative authority, ent *22 de- purpose for the of procedures policies current or incon- any deficiencies whether there are termining with full compliance which prohibit sistencies therein (cid:127) pro- and shall provisions purposes and [NEPA] may be . pose to President . . such measures con- authority policies into necessary bring their procedures set intent, formity purposes, with the It would §4333. 42 S. forth U. C. [NEPA].” one and the same Congress provided if had anomalous primary re- federal which have agencies, time that NEPA,19 sponsibility implementation for the must any new present necessary ask for comply with law and may simply ignore the courts what but that legislation, 19 County Planning FPC, 412, F. Board v. 455 2d Greene See Energy Comm’n, Coordinating 420; Comm. v. Atomic Calvert Cliffs’ 1109, 1119; City York 33, 43, 146 449 2d New App. D. C. F. U. S. Comm’n, States, 150, 160; Supp. v. F. Cohen v. Price United Supp. 1236, F. purpose congressional “a clear in Arrow as
we described 671 n. 22.20 . at S., . . 372 U. judicial power to oust in pointed nothing either The District Court history of NEPA that restora suggests or language it power. While previously judicial tion of eliminated Ap on of the Court primarily relied the decisions in Calvert peals for District of Columbia Circuit Comm’n, Coordinating Energy Comm. v. Atomic Cliffs’ Com App. 33, 146 U. D. C. 449 F. 2d 1109, S. Seaborg, mittee Nuclear Responsibility, Inc. v. App. 380, 149 U. D. 463 F. 2d neither S. C. case an supports injunction under circumstances Calvert had this case. held that a federal court Cliffs’ power Energy to review promulgated rules Atomic and there the court further con Commission, ordered sideration of the ground rules had not there compliance been In NEPA. Committee Nu clear Responsibility it was held that federal had courts jurisdiction to consider whether an executive decision to conduct a nuclear test had procedural satisfied the re- argument The that NEPA implicitly restored to the courts injunctive power (7) had divested is similar to con rejected in tention Arrow petitioners itself. There the claimed that congressional adoption Transportation of the National Policy, 54 implicitly (7). had They Stat. altered claimed that §15 proposed new railroad rates would barge drive the lines out of contrary existence, congressional to the declaration of concern for protection water carriers threatened competition. rail “nothing Court concluded that in the Transportation National *23 many Policy, years enacted . §15(7), after . . indicates that Congress judicial power intended to revive a . which . . was extinguished suspension when the power was vested in the Com Transportation mission.” Arrow Co., Co. v. Southern R. 372 U. S. 658, addition, 673. In that, the Court noted as is also true with NEPA, the mandate was directed not to the courts but to the Commission. There is nothing any about NEPA that it more makes amenable finding implicit for an (7), amendment of 15 than § National Transportation Policy was. is however, here, question NEPA. quirements to determine power judicial general there whether not grant and to NEPA, with complied agency if has an Transportation cf. Arrow not, it has if relief equitable Scripps- n. supra, 22; at Co., R. Southern Co. v. rather but FCC, 4, 316 U. S. Radio, Inc. v. Howard revived sub silentio NEPA context specific in a whether eliminated explicitly been that had power judicial Nuclear Committee Calvert Congress. for Cliffs’ issue, say on this nothing to have Responsibility restricts statute that specific was concerned neither injunctions.21 grant to federal courts power power lacked the that the District Court conclusion Our by the fact is confirmed injunction present to grant the in Arrow as identified policies we each of the that substantially undermined (7) for 15 would be the basis § suspension powers simply if found have the courts were noncompliance alleged. with NEPA was because been Arrow the Commission had First, found powers in order to avoid granted suspension exclusive previously diverse had been reached results that courts. District courts had differed as to existence scope any power grant interim with the relief, uniformity jeop- had consequence that of rates been ardized, and shippers, carriers, different and areas of country subjected had disparate been treatment. enjoin Similarly, since suit to a national rate increase on NEPA any could be grounds brought federal dis- court country, trict in the see 28 U. C. 2321- §§ S. 2284, 2325, easily result might be that the courts would 21Indeed requirements Calvert indicated that Cliffs' NEPA, 8, see supra, with, n. complied did not have if such compliance precluded by statutory provision. another 146 U. S. App. C., 2d, D. at F. 1115. And Committee Nuclear Responsibility, context, principle, equally in another ap endorsed a plicable here, “repeal by implication is disfavored.” 149 U. S. App. 380, 382, D. C. F. 2d *24 [engendering] . . . confusion results, diverse
"[reach] inequities.” [producing] competitive S., U. In York short, a rate allowed New increase Jersey. might in New be disallowed Arrow (7) represents stressed in that Second, we careful accommodation various interests involved. suspension period prevent was as to time to limited dur- excessive harm to the for the revenues lost carriers, period recouped shippers. that could not from the ing be if Congress On the other aware that the Com- hand, then suspension period, did not act within the mission automatically go the new rates would into effect and shippers pay might would have to rates that increased eventually mitigate loss, found To be unlawful. this car- Congress require authorized Commission to eventually repay keep riers detailed accounts judicial allow the increased rates if found unlawful. To suspension noncompliance NEPA, with would dis- turb A may this careful balance interests. railroad depend its financial life on an very rate, increased may perfectly just and the rate reasonable. Granting injunction an rate against based alleged noncompliance NEPA, Commission’s although the had suspend Commission determined not to rate, deprive vitally would the railroad of needed an unjustified revenues and result in shippers. windfall to Finally, any we found in Arrow survival of judicial power injunctive to grant interim relief would represent an undesirable interference orderly with the exercise of the power of suspension. Commission’s Sim- ilarly, grant injunction an present even context, though not based upon a substantive consideration the rates, directly would interfere with the Commis- sion’s decision as to when the rates were go into effect, ignore would our conclusion Arrow “Con- gress meant to foreclose a judicial power to interfere *25 out of would be timing changes of rate with the levels fostered uniformity of rate harmony with the S., at 668. 372 U. primary jurisdiction.” doctrine of the explained Circuit for the Second Appeals of As the Court States, Authority York United in Port New v. of noncompli- alleged on the of 783, 788, 2d basis where, F. a injunction sought against an ance with NEPA, suspend refusing Commission order to rates: per- to decision in Arrow —that “The basis judicial the Commission’s sus- mit interference with pension procedures very disruption would invite the orderly proposed review of the lawfulness that Congress preclude applies tariffs meant to — with equal force to the issue now us.” before Accordingly, pre- because the District granted Court liminary injunction railroad suspending rates when it power lacked do so,22 judgment its must re- 22In of our power grant view conclusion that there was no preliminary injunction, unnecessary it is for us to reach the questions posed by other parties. example, For the Government urge that, and the railroads pressures time, because of the an impact required environmental statement suspension is not at stage proceeding, and, of a any rate event, a decision Commission whether or not suspend subject rates is not judicial review. Port Authority New York States, See v. United Mayer Oscar 783; & 451 F. 2d States, Co. v. United Supp. 268 F. Georgia M. C. Kiser Co. 977; Central Co., R. v. 573; 236 F. Freeport Sulphur Co. v. States, United Luckenbach Supp. 913; 199 F. S. S. Co. States, v. United Carlsen v. United Supp. 605; F. States, Supp. 107 F. appellees in turn contend that some compliance -with NEPA possible is suspension stage, and that compliance required such if the statute is to be enforced “to the possible.” fullest extent See U. S. C. §4332. they And urge is, that there be, or exception should an general to the principle of nonreviewability suspension decisions for those cases where the Commission beyond has acted statutory its authority, or in violation statutory of a clear procedural command or require ment, a standard appellees view enough as broad to en- court for further the cases remanded to
versed and opinion. proceedings consistent with this ordered.
It is so part Powell no consideration Mr. took Justice of these cases. or decision
Mr. Mr. Justice Justice with whom Blackmun, joins, Brennan concurring.
I but be- join opinion, and its judgment Court’s *26 III presence cause of the of of Part the first sentence as misunderstanding avoid opinion, any to to I my posture, add few words.
For the in my opinion reasons stated in dissenting Morton, Sierra Club v. I (1972), 405 U. S. 755 would hold that appellees here have to standing maintain action this based on their of harm allegations to the environment from resulting the Commission’s order April of 1972. And, in in- evaluating whether junctive relief is I warranted, require would not that the in their appellees, prove they individual capacities, that in fact injured. were I Rather, require only would appellees, responsible representatives sincere of environmental show interests, the environment would be injured in fact and injury that such would be irreparable and substantial.
Mr. Justice Douglas, in dissenting part.
I present These cases important environmental prob- They lems. concern for ratemaking the shipment of compass alleged noncompliance with Naph-Sol Refining NEPA. See Co. v. States, United Mayer Supp. 530, 269 F. Oscar 532; & Co. States, v. United supra, (Doyle, Long J., concurring); Island R. Co. v. States, United Supp. F. express 795. We no view any of these issues. are the metals Paper, glass, recycling. for litter by the indicated today's garbage.1 As main items America's opinion, I to this Appendix Mines Bureau of for use it is either garbage of disposing method and then incinerators through it first put or landfill several recycling have Sorting bury the residue. of incin- the use (1) reduction impacts: environmental or encour- (2) establishing pollution; air erators lessens recycling (3) from litter the landscape; removal of aging As resources. and nonrenewable renewable saves both recycled, paper are respects the the tons last, into the number be translated burned, rather can than pulp the next need not be cut standing trees that remaining non- recycled protect our year; the metals ore, and so on. supplies renewable shipments of encourage fixed vast litter Rates so as dramatic are, therefore, perhaps the most immediate and policy protection of a which will encourage illustration survey, In Bureau Mines’ it established that metals and glass approximately percent weight of the resi account municipal Recycling dues incinerator waste. Economics of Metals *27 Refuse, Prog from and Minerals Urban Bureau of Mines Technical 1971). 2 Report 33, p. (Apr. materials, No. From these if re ress cycled, products bottles, newspapers, as ingots, familiar such iron paper gas pulp, oil, fuel and methane can manufactured. In addi tion, products being developed, new are glassphalt such as street paving, insulation, glass wool, glass bricks, and in various colors specifications meet facing Id,., for “severe weather” brick. at 7. project This Recovery was launched under the Resource ofAct 1970, 1227, 84 Stat. 42 seq., U. S. C. 3251 et under which the Sec- § retary provide of HEW was authorized to technical and financial planning developing recovery assistance in and resource and solid disposal programs. waste
For a Recovery detailed Ross, account of a Resource Mill see How Recycling, in Quality Succeed Magazine, Environmental June 1973, p. 51.
701 several erosive conditions.2 against environment de- responsible eminently I affirm the would, therefore, Supp. F. District 346 189. cision Court. Policy 1969, Act of 83 The National Environmental seq., congres- 42 C. et declares a § U. S. 4321 Stat. policy sional enjoy- productive and encourage
“which will harmony environment; able man and his between or eliminate promote prevent efforts which will biosphere to the environment and damage stim- ulate health man; and welfare of enrich the understanding ecological systems and natural important Nation; to the and to resources estab- lish a Council on Quality.” Environmental U. S. C. §
That policy expounded broad is (b) further alia, to include, objective inter that “the Nation may (2) ... safe, pro- assure all Americans healthful, ductive, esthetically culturally sur- pleasing . roundings (6) . . and the quality enhance of renewable . . depletable resources and . resources.” necessity The transportation ap of reasonable rates is even more parent when it realized proc is the volume of residue which is major recycling plant essed at a 1,000 per is between 250 and tons (Economics day. of Recycling Metals and Minerals from Urban Refuse, supra, 1.) n. Massive bulk transportation is therefore plant operations. essential to these problem even is more critical urban areas is a where there high being generated transportation concentration of solid waste outlying recycling plants major In cost factor. 1968 a na- survey average tional pounds per found that an of 8.2 of waste capita daily areas; figure collected urban this has risen now pounds. present continue, figure to 9 If high trends this could be as pounds years. whole, another In our urban areas as a *28 generated approaching year the solid waste ton a fast for each man, woman, Kramer, Energy and child. Conservation and Waste Recycling, 13, 1973). (Apr. Science Public Affairs have do not urges appellees that The Government determination the administrative standing challenge in its alleged freight of railroad rate increases. SCRAP environ- its suffered complaint amended members in- injury alleged mental and economic as a result amount because the increase diminished the total crease, States, in the and made those of waste United recycling from waste which were in fact manufactured products, expensive after in the materials the rate more increase, marketplace. In each addition, alleged SCRAP “forests, streams, its fact used the rivers, members . . rec- mountains, other natural resources .” for adversely reational purposes, and these uses were affected because rate Commission’s increases discourage recyclable reuse of commodities, such as bottles cans, depletion encourage of natural resources. Morton, In Sierra Club v. 405 U. Court- S. this stated “We that, question do not [environmental] may harm amount an 'injury lay fact’ sufficient the basis for under . APA standing . . the S. C. U. [5 Aesthetic and 702]. environmental like eco- well-being, important nomic are well-being, ingredients the quality of life in our society, and the particular fact that environ- mental interests are many shared rather than the few does not make them less deserving of legal protection judicial through the process.” The members of SCRAP clearly have an alleged “injury in fact” to the environ- ment and personal to their own continued use of it.
“There is nothing unusual or
novel
granting the
consuming public standing to challenge administrative
actions.”
Communication
United Church
Office of
Christ
FCC,
v.
123 U. App.
S.
D. C. 328,
Littering everywhere. reports From and writ- every person, almost trails, mountain littering we know that defaces ings Those in alpine highest peaks. even our meadows, litter. valleys are often almost inundated with polluted person dependent Where river is and a I be water, suppose it for there would not drinking in slightest he would have court to standing doubt that I present suppose the slight- his claim. also there is not any person est doubt smog city, that where on a settles who must sulphuric breathe that air or feel the acid form- in ing eyes, his would have in standing present court I his equally any claim. think it is obvious that resident paths of an area whose are strewn with whose litter, parks, picnic or grounds are defaced standing it has tender his complaint to the court. Sierra Club v. Morton, supra, would to cover case, littering seem this recycle abetted clearly failure would seem to implicate residents to whom “the aesthetic recrea- tional vaues Id., of the area” important. are at 735. For the my stated in opinion reasons Sierra Club v. Morton, supra, I agree with the Court appellees have standing, but like Mr. Justice I would Blackmun, require not appellees, their individual capacity, prove injury in fact. As Mr. Justice Blackmun states, it should be sufficient if appellees, responsible “as representatives sincere of environmental interests, show the environment would injured . fact . . .”
II The Council on Quality Environmental cre- (CEQ), ated in the Executive Office of the President, C. U. S. estimated 1969 that this Nation produced more than 4.3 billion tons of solid refuse, including about 30 million tons of paper, 30 million tons of fly industrial ash, 15 million tons of scrap metal, 4 million tons bottles, 30 billion tires, automobile 100 million plastics, of discarded automobiles cans, and millions billion Aug. 1970, CEQ, Report Annual First appliances. sec- *30 while most reported 107-113. It pp. replacement a for be could reused ondary material Ibid. recycled. only a small fraction material, virgin was the recycling of absence One of the reasons of material and trans- of collection high cost both Ibid. costs. portation was to “en- purposes one of Act noted, of the
As approach resources and of renewable quality hance the of re- recycling depletable the maximum attainable (b)(6). October §4331 sources.” U. S. C. On CEQ Train of the Inter- Russell wrote 1970, Chairman Commission as follows: state Commerce deeply is Quality “The Council on Environmental quality. with all of concerned facets environmental disposal important aspect waste is one Solid pollution problem, total a new and recycling disposal desirable alternative solid waste which supports. the Council The to which strongly degree depends this will technique entirely used almost Transportation on economics. costs, degree to the they secondary scrap increase or costs com- materials pared to the raw materials with which they compete, act as a to recycling. disincentive The Council be- lieves that rail haul costs currently several biases exist and would like to discuss these cases with you. ... In general, across-the-board percentage only price increases widen existing against biases secondary materials. these Also, increases raise the costs business doing which can hinder the salvage industry. reclamation “In light of the concern President's with environ- mental quality, problems growing of solid waste them, alleviating recycling importance
and the hope that express the Council’s I like to would actions on Commission’s Commerce Interstate will rates transportation scrap material key issue qual- environmental with the Nation’s be consistent App. 68. ity goals.” filed the railroads substantially all
In December sur- impose a request Commission 2.5% details procedural virtually all freight. charge material. it presently not Suffice are followed submitted veri- recyclable materials say that shippers increases support their view rate fied statements shipment and use intensify disincentives to would Iron Scrap Thus recyclable the Institute materials. study showing: and Steel submitted *31 scrap are retarded because “(1) markets Present iron which the of transport encourage usage of rates scrap are ore. Future markets (2) being affected be di- logically investment that would because new be- steelmaking is diverted scrap-intensive rected to rate structure to ore- existing freight cause the Iron ore limited steelmaking. (3) (a intensive exploited resource) being natural is when domestic (4) scrap iron it can and should conserved. Some recycled the move, that should be is unable thus despoiled by unnecessary accumu- environment Impact metallic T. Barnes, of solid waste.” lations on the Freight Recycling of Railroad Rates of Fer- (Jan. rous Scrap 14, 1972). a proceeding
The Commission instituted concerning guidelines impact the environmental statements Act required under the should follow. 339 I. C. C. 508. A eastern spokesman the railroads filed an impact that “any possible statement which said adverse environ- impact in form of mental the reduced of com- movements only provide if we fail by rail come modities will the need service” and efficient adequate Ap- was for increased revenues. to that end railroads for a request suspension and a pellees protest filed a the railroad present alleging proposed surcharge “recyclable” discourages movement rate structure discourage further surcharge would goods and recycling. surcharge for limited Commission, allowing no significant found that would adverse
period, it “have on railway in the of traffic effect movement or within meaning of the human environment” quality 340 I. C. C. 287. 358; Act. See C. I. C. CEQ protested Train of Chairman the Commission on 1972: October
“It is understandable that be en- difficulties will countered conse- quantifying environmental quences freight an incremental rate increase recyclable materials. In view, however, our these consequences must be assessed light disparity rate between secondary and primary ma- terials that rise to gives problem place. in the first This disparity entirely is a matter of an different magnitude, calling for a thorough environmental assessment as precondition to determining whether subsequent incremental require increases additional *32 impact environmental Clearly statements. . . . point some increases which might individually be ‘insignificant’ become cumulatively In ‘significant.’ addition, the claim recycled freight rates on products must be respond increased to to ‘emergency’ revenue needs pending completion of the required, overall environmental evaluation, loses much of its force as turn years months into and the basic in- vestigation remains uncompleted. Finally, even the ‘emergency’ argument itself, however in legitimate, of alternatives way the consideration no forecloses needs and at both meet revenue which would further environmental potential same time avoid is being the basic structure issue damage while rate in fact, were, resolved. Alternatives of sort this opinions of partial in the Com- suggested dissenting (who would have de- Brown and Deason missioners recyclable approval nied increases commodi- majority no in ties), with indication the Commission’s report such measures would not have been sufficient to meet revenue needs relied on to justify the rate In summary, increases. ... Council feels that the basic environmental issues re- lated to the existing freight rate structure changes must thereto, logical, be evaluated analytical timely compliance fashion with the requirements of the National Policy Environmental appear Act. The Commission’s actions to date objectives inconsistent with the NEPA, and the analyses undertaken to date Commission ap- pear to offer an inadequate basis from which to draw impact conclusions concerning of freight recycling rates on quality. enviromental Our staff is available procedural to discuss the NEPA is- sues well as to assist in structuring analytical required work to assess adequately the environmental impact freight App. rates.” 87-89. report In Senate, his Jackson, before the Senator one three
legislators responsible most NEPA, poli stated: “To insure that the goals cies and defined in ongoing this are programs act infused into the Government, and actions of the Federal also act establishes some important ‘action-forcing’ procedures. Section authorizes and directs all agencies, possible, Federal to the fullest extent to ad existing laws, regulations, policies minister their conformance policies agencies with the set forth in this act. It also directs all assure impact consideration the environmental of their actions decision-making. agencies requires propose It actions to *33 708 the District held that conclusion
The Court three-judge would have “no of that the rate increase the Commission effect” on the environment within the significant adverse “transparent” EPA was “a ruse.” 346 meaning analysis of F. 200-201. This to an 102§ leads Supp., of NEPA.4 of the agencies
That section directed to “all Federal the Interstate Government,” which course includes agency interpret Commerce It Commission. directs public administer “the laws” regulations, policies, which possible” it administers “to the fullest extent policies accordance EPA. with the It directs agency5 include in “major Federal sig- actions nificantly affecting quality of the human environ- “by ment” a responsible detailed statement official (i) the impact proposed environmental action, on — (ii) any adverse environmental effects which cannot be avoided proposal should the be implemented, (iii) al- proposed ternatives action, (iv) relationship consult appropriate agencies having juris- Federal and State expertise diction or any environmental matters and to include comments agencies made those outline environmental considerations proposals. involved with such together, provisions
“Taken 102 any section directs [sic] agency Federal which takes action that it must take into account management quality environmental and environmental considera- tions.” Cong. (1969). Rec. totality important litigation of 102 is so to this that I have Appendix set it forth II to this dissent. reported Senator saying: Jackson was expected requires “We Section of the act which environmental impact analysis major statements and alternatives all federal significantly affecting quality actions human environment agencies to force anticipate . to move. . . did not We it private through parties would be the courts that would force the compliance. Cahn, This is has it what made work.” Can Federal Help Law Fragile Beauty?, Citizens Nature’s Save Christian Science (Feb. 1973). Monitor 12 *34 of and
between local short-term uses man’s environment pro- long-term of the maintenance and enhancement any and irretrievable ductivity, (v) irreversible would be involved in commitments of which resources Prior proposed implemented. the action should it be responsible the making any statement, detailed with and Federal official shall consult obtain the of any agency jurisdiction comments Federal which has special any law or en- expertise respect with impact Copies vironmental involved. such state- appropriate ment comments and of the views Federal, State, agencies, and local which are authorized develop and enforce environmental standards, shall be made President, available to Council on Environ- Quality mental public provided by and to the section . . of Title . and shall accompany proposal through existing processes.” 83 agency review Stat. affecting Rates like litter, affecting rates other com- obviously modities, expedi- are to the ease relevant tion it transported. with will be get which To litter to appropriate recycling plants quantities protect needed to our fast forests and our non- depleting renewable resources6 and to relieve our landscape litter plagues may us special need incentive rates.
The H. R. report, Rep. Conf. No. 91-765, makes clear that no agency of the Federal exempt Government is that each should comply existing applicable unless law to the agency “expressly prohibits or makes compli- full Smith, Waldo E. Union, Geophysical American recently supply stated: “The total of most sharply metals is limited; even now dig go we deeper, farther, must grade opti and use lower No ores. justified mism supply here. The substantially by can be extended intelligent recycling, important by-product should be an of our cleaning up to Long- maintain clean environment.” Resources and Forecasts, (May Science 1973). and Public Affairs report impossible.” the directives anee with one states: it clear is to make language new purpose
“The shall the Federal Government agency that each subpara- out such directives with the set comply law existing (H) unless through (A) graphs expressly pro- operations agency’s to such applicable di- one compliance full or hibits makes *35 case, If to be the such is found impossible. rectives is not particular the directive with compliance then other activi- However, immediately required. required. Thus, compliance is agency, ties of that 'to provision that the intent of the conferees it is the any possible’ shall not be used the fullest extent compliance avoiding a of agency Federal as means Rather, in the directives set out section 102 is intended assure language the section the Federal shall agencies that all Government comply directives out said section with the set statutory possible’ under their ‘to fullest extent and that no utilize an agency authorizations shall excessively narrow construction of stat- existing its utory compliance.” Id., to avoid authorizations 9-10. acting responsibly
The District Court, light policy the broad and clear-cut of the Act concluded that “ ” it a ‘high sets standard’ for federal agencies, that there “ ” ‘escape is no hatch for footdragging agencies,’ that the preparation Act does not make the and use of these im- “ ” pact ‘discretionary,’ statements did Congress not “ ” intend that this Act ‘a paper tiger.’ 346 F. Supp., at 199.7 Congress exceptions When desires impact to be made to the requirement NEPA, express
statement under exemption is provided. example, For 92-307, 191, Pub. Law pro- 86 Stat. Co., R. v. Southern Transportation
Arrow Co. In Arrow there preclude review here. U. S. does not the power Commission had to sus were rates which the suspended. suspension pend power had The but not and we held that only; was entrusted to Commission not intrude when the Commission has courts should acted; not it has found acted. Here the Commission has proposed that “the here are just reasonable, increases that the derived result in earnings revenues therefrom will Energy grant tempo- vides that the Atomic can Commission rary operating power license for a nuclear reactor without completion statement, impact applica- if the an environmental tion for operating September 9, license filed before hearing findings, and the Commission holds which leads to the among others, operation facility during period of the temporary operating license accordance with its terms adequate provide protection will conditions the environment dur- ing period facility operation and that essential system. insuring utility toward power-generating capacity of a empowered impose Commission is and conditions such terms necessary, as it subject judicial deems and its decision is review. *36 agencies taking promote Some federal are affirmative action to purposes Exchange Thus the 105. Securities and Commission recently adopted registration reporting amendments to its and forms require meaningful pertaining to more disclosure of items to certain federal, compliance state, effect on business the issuer’s with regulations relating protection and local laws and to the of the en- require part descrip- vironment. The will amendments as a business, appropriate respect tion of the issuer’s with to disclosures compliance the material which effects with environmental laws regulations may upon capital expenditures, earnings, have competitive position the issuer and its subsidiaries. Other amend- litigation ments describe to which the extent disclosures should con- specific descriptions proceedings. tain of environmental Securities (Securities Exchange 5386, Comm’n Release Act Rel. No. Apr. 20, 1973). AEC, App. Scientists’ Institute v. 156 U. See S. D. C. 1079, holding F. impact 481 2d that an statement must Energy liquid filed for the Atomic metal fast Commission’s breeder program. reactor required of that . . . not in excess
and rates return adequate and efficient “to render carriers enable” the cost consistent at the lowest transportation Ex parte 281, Order service.” furnishing of such said it The Commission (unreported). Feb. condi- rates, it attached prescribing though not was without suspension. of the rates on approval tions if the new rates suspend It made it would clear not As stated the three- were added. the conditions effectively suspension “A decision which judge court: into submitting agency-authored carriers blackmails the from functionally agency is an indistinguishable rates Supp., rates.” 346 F. setting order those Judge court held and as Moreover, three-judge as States, Friendly City New York v. United observed F. a new unusual Supp. “NEPA is 150, 164, those imposing statute substantive duties overlie imposed or agency an statute statutes for which jurisdictional responsibility.” it has today weakens NEPA in a cru- greatly Court cially important segment of federal environmental plants field. Movement of litter criti- recycling cally important, abundantly Chairman Train makes as clear. The alternative is leave it cart underfoot or to pollute it off as garbage incinerators that the air or to landfills are getting more and more find.9 difficult to recycled We know that recycled recycled paper, copper, recently reported saying Senator Jackson about these impact statements: get generic “We also should be able to impact environmental state updated every energy six policy, months or so—for trans
ments — portation *37 major policy, policy Cahn, supra, and other decisions.” n. 5. of only Most Nation's waste dumps the is relocated into approximately way finding sanitary its into landfills. 10% 15% Kramer, supra, n. at 17. Federal Bu- practical. The recycled are iron, glass Edmonston, Maryland, in pilot plant reau of Mines its debris, costs about “urban it calls this ore,” boasts that as know that recycled $11 a a ton. $3 ton and is worth We We are told we here with nonrenewable resources. deal recycling paper trees thousands of acres saves year.10 a on En- Act, appraisal
Under the Council Quality vironmental of which Russell Train is the chair- weighty man is a under 204 it has one, of the Act responsibility appraise “to programs various of the in light activities Federal Government” policy of Act develop and “to and recommend . . . policies promote improvement national to foster and quality.” environmental 855; U. S. C. Stat. (4). CEQ expert §§4344 other (3), is, words, in the ombudsman environmental area.
10Congressman Dingell, sponsor NEPA, recently main another saying: reported as impact “The success the environmental is not so much statements they they used should, were as we intended but that citizens been to use process [way] get have able a . into courts. . . agencies complying They they Some are poorly. decide what are going impact to do and then write an environmental statement support Congress the decision. what I That is not had mind. am breeding impact fearful we are race statement writers put right really get who all the words down but don’t environmental decision-making impact concerns process. involved The important. thing important statement itself is not The is that proper judgments reflecting are made environmental considerations decision-making process. impact should be statement discipline public process this and also a can be brought decision-making process.” Cahn, informed and into the supra, n. 5. impact transportation prob-
For a account of recent statements on (former lems see Cahn CEQ), Robert member of Environmentalists Wary Transport (Feb. Trend, Christian Science Monitor 1973). *38 Con- federal among agencies, tendency apparent
The they want first what decide says,11is to Dingell gressman apologia as an an impact statement prepare to do and then before puts That cart they done. have for what But that did here. Commission what the That is horse. of its excessively narrow construction” “an adopt is to new with the compliance” “to avoid statutory power Con- in the as condemned standards —all environmental environ- say, is to supra, 10. That report, ference shape all possible, to are, so far as mental considerations policies decisions. agency prac- A of the current indeed, Exhibit are, cases These an- policy to undermine agencies tice of federal long were NEPA. Rail rates by Congress nounced development discriminatory retarding the industrial States, York v. New United U. S. of the South. discriminatory against present arguably rates are The is us. engulf of the litter which about the removal Train, than the technical The rather wisdom Chairman be our Commission, guide. maneuvers of the should I of the District Court. judgment would affirm I APPENDIX OF DOUGLAS, J., TO OPINION IN DISSENTING PART Maryland, The Bureau of Mines had at Edmonston, years plant incinerator several an residue processing Lowell, of which Massachusetts, basis instituted its Recovery Resource Project. project Edmonston is now engaged recycling of waste and the
raw the Bureau's following description scope project. the nature of that supra. See n.
FACT SHEET *39 Project (Md.) Recycling Solid Waste Edmonston of Mines Bureau OF THE INTERIOR DEPARTMENT important part of the utilization research carried An solid waste processes develop Mines is methods and for the Bureau of Engineers from recycling present mineral materials urban refuse. (Md.) Metallurgy College oper- Park Center Bureau’s Research Edmonston, Maryland, pilot plant they at ate a where reclaim ferrous metals, metals, glass, plastics, paper and from nonferrous raw un- following pertinent refuse. The facts are the research burned underway pilot plant, at the Edmonston pounds typical municipal xxx—100 of refuse contains: pounds cardboard; paper pounds 36.6 of and garbage; 20.2 of pounds metal; pounds leaves, glass; pounds 8.4 of 8.5 of 17.4 of grass, hedge clippings prunings; pounds and tree scrap 2.6 of wood; pound plastics; pounds 1.1 of and 5.2 of miscellaneous including leather, textiles, rubber, stones, material bricks, and dirt. generated
xxx—Urban refuse in the U. inS. 1972 totaled 300 million tons, equivalent daily or the of pounds more than 8 every for man, woman, and child. Only 220 municipal regularly million tons of refuse was col-
xxx— by public agencies lected private firms. The remainder (80 tons) abandoned, million dumped point of sites,
origin, disposal or hauled to uncontrolled xxx—The municipal volume of accumulating refuse U. S. in a year single would cover an area half the size of State of (2,500 sq. mi.) layer
Connecticut with a of deep. refuse foot This refuse contains steel, some million tons of iron and glass, million tons of aluminum, zinc, and over a million tons lead, tin, and copper. Collecting disposing of refuse average costs cities an xxx— per $23 ton $5, for ($18, disposal). collection and New City, York per ton, $40 at a cost spends almost a million day
dollars each to collect and dispose of solid waste. Total U. S. bill runs annually, $6 about billion municipal xxx—Most refuse is disposed dumping, landfill, or incineration. About 30 million municipal tons of refuse is municipal incinerators. than 300 annually in more burned residues, which million tons of generate 7.5 These incinerators by the developed Bureau process are buried. then world- has residues attracted from incinerator reclaim values type plant this will soon size A commercial wide attention. seventy- Massachusetts, with Lowell, construction be under by the required, being provided $3.2 million percent of five Agency. Protection Environmental resi- from incinerator mineral values reclamation of xxx—Successful research to save pilot plant prompted Bureau’s dues at the being during lost municipal refuse that now part also that building munici- the need more burning. This would reduce costs, incinerators, operating saving their construction and pal bring salvaged paper plastics from income would pollution glass. It air metals and would also eliminate well as *40 problems connected with incineration. metals, Equipment separation glass, paper, for mechanical
xxx— plastics municipal refuse incineration has been and from before process The involves shred- at Edmonston. assembled coarse refuse, ding magnetic classification, followed air separation, screening, optical sorting, separation, electrostatic gravity proven and concentration —all in the methods used industries. minerals recycling proposed
xxx—Other refuse schemes have been and some already are development. process developed by under The unique following major respects: (1) is in Bureau it is only system, process complete (2) that embodies a it is the only process capable capturing concentrating putrescibles and glass, (3) only and process it is produces prod- a tin can (4) uct detinning, only process suitable for it capable is the extremely accepting pieces metal, (5) massive only it is the process successfully separate that can plastics paper, (6) energy requirements for the process Bureau’s are far proposed processes. least of all plant 1,000 xxx—A processing per tons of day raw refuse could be expected day to reclaim enough each metal ferrous to make all parts iron and steel for more than 55 4-door sedans. year xxx—About billion bottles are discarded each in the U. S. as solid waste. Each American glass discards a bottle on the average every days. of about one average two returnable beer bottle used to trips make 31 round brewery, from the the consumer, and back to the brewery. The average is now trips. cities, only People discriminating In some it are bottles, less between returnable and non-returnable making raw refuse reclaimed from can used new xxx—Glass glass, products building or such salable mineral bricks, (when insulation, surfacing ground wool and road asphalt). mixed with present
xxx—Aluminum refuse the form of cans alone amounts percent to 10 primary production. the total to- This metal gether with other aluminum recovered from refuse would find ready secondary existing market at smelters for conversion grade high alloys. casting heavy xxx—The other nonferrous could be readily metals used producing brass ingot or the mixture could be further refined metals, separated into the constituent generate xxx—The rate at which we growing refuse is fast that so years, within 20 recycle if percent even we are able to our solid space wastes our needs for landfill will remain the is, space same. And now, landfill even becoming harder and harder find.
[Refuse-disposal and refuse-recovery appear on charts pp. 718 and 719 respectively.] *43 DOUGLAS, J., II OF APPENDIX TO OPINION ' IN PART DISSENTING Policy Act, 102 of Environmental the National Section 4332 provides: C. U. S. availability Cooperation agencies; reports; § na recommendations; and information; international coordination tional of efforts. fullest Congress that, authorizes and to the directs public possible: (1) and policies, regulations,
extent ad- be and interpreted laws of the United shall States policies forth ministered accordance with set and Federal Gov- chapter, (2) agencies this all ernment shall— ap- utilize
(A) systematic, interdisciplinary proach which of the integrated will insure the use natural and and social sciences the environmental arts in design planning decisionmaking may have an impact on man’s environment; identify
(B) develop and procedures, methods in consultation with the Council on Environmental Quality by subchapter chap- II this established ter, which presently unquantified will insure that environmental may given amenities and be values appropriate consideration in decisionmaking along with economic and technical considerations;
(C) include every report recommendation or proposals legislation major Federal other significantly actions affecting quality of the human environment, a detailed statement responsible on— official
(i) the impact environmental proposed action, effects which
(ii) environmental any adverse proposal should the cannot be avoided implemented,
(iii) proposed action, alternatives to the local (iv) relationship between short- main- term uses of environment man’s *44 of long-term pro- tenance and enhancement ductivity, and
(v) any and irretrievable irreversible com- in- mitments of resources which would be proposed volved in the action should it be implemented. any
Prior to making statement, respon- detailed sible Federal official with and obtain shall consult any juris- the comments of which agency Federal has special expertise respect diction law or any impact Copies environmental involved. such statement and comments and views appropriate Federal, State, and local agencies, are to develop authorized and enforce environmental shall standards, be made available to the President, the Council on Environmental Quality and to the public provided by section 552 of Title and 5, shall accompany the proposal through the existing agency processes; review
(D) study, develop, and appropriate describe al- ternatives to recommended courses of any action in proposal which involves unresolved conflicts con- cerning alternative uses of available resources;
(E) recognize the worldwide and long-range char- acter of environmental problems and, where con- sistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international decline preventing and anticipating cooperation environment; world of mankind’s quality in the munici- counties, States, available (F) make and in- individuals, advice palities, institutions, en- maintaining, and restoring, useful in formation environment; quality hancing information ecological and utilize initiate (G) of resource-oriented development planning projects; Quality on Environmental the Council
(H) assist chapter. II subchapter of this established 1, Jan. Stat. 91-190, I, Title Pub. L. Justice with whom Chief Justice White, MR. Rehnquist part. dissenting join, Mr. Justice Court I of the District judgment would reverse the complaint appellees because and order dismissed cases, None our in- standing lack this suit. bring *45 in may be drawn from dicta cluding inferences that Morton, we (1972), Sierra Club v. 405 U. 727 where de- S. confer standing petitioner there, nied are sufficient to The standing plaintiffs in circumstances like these. al- satisfy not legations requirement here do the threshold in injury constituting justiciable fact for a case or contro- injury The versy. alleged is that the failure of the Com- suspend may mission to freight rate increase dis- 2.5% courage transportation recyclable materials, thus retarding recycled use further materials, causing consumption (some of our forests and natural resources of which might taken from the Washington metro- politan area), resulting more refuse and undis- posable pollute materials to further the environment. majority acknowledges allegations that these re- ante, flect an “attenuated line causation,” 688, suspend but is willing judgment its in the dim hope proof at unexplained that trial way will some flesh necessary them out and nexus between these establish appellees they across-the-board rate increase complain alleged injuries remote, of. To are so me, speculative, they and insubstantial in fact fail to They real, confer become no more standing. concrete, or substantial when it is added that materials will cost more marketplace at the freight that somehow the rate will increase air pollution. Allegations increase such as these are no more substantial and direct and qualify appellees no more these to litigate than alle- gations taxpayer governmental expenditures will his impact pocket- increase taxes and have an on his Mellon, book, Massachusetts v. 447, 262 U. S. 486-489 (1923), or allegations governmental decisions are offensive to reason or morals. The general pos- “right, by every sessed to require that citizen, the Government be according administered to law and public moneys that the be not wasted” not confer standing litigate does Fairchild Hughes, federal courts. v. U. S. (1922). New York did not have standing complain when merely it possible asserted adverse effects of diversion of water from Lake Michigan upon hypothetical power developments in “the indefinite future.” New York Illinois, v. S. 488, U. 490 (1927). Assumed potential invasions are insufficient bases for a justiciable case or controversy. Arizona v. California, 283 U. S. (1931). IAs see the allegations in case, this they reality are little different from the general-in- *46 allegations terest found insufficient and too in remote Sierra Club. If they are sufficient we here, are well on our way to permitting citizens at large to litigate any decisions of the Government which fall in an area of interest to them and with which they disagree.
Assuming, however, that a majority of the Court ad- heres to conclusion that a constitutional case or controversy in exists these circumstances and plain- that Court erred District that agree I sue, would may tiffs clearly quite Congress injunction an entering in Ac- enter. to power it of the divested long since had I add opinion. III the Court's Part join I cordingly, railroads country’s this maintain to failure only that guarantee will condition anemic present in their even they are —far where stay will materials recyclable that consequence as a that plants recycling reach beyond the all. be may not built dis- part in concurring Marshall, Justice
Mr. in part. senting Court’s II Part join fully agree
I deter- Court’s District wherein it sustains opinion challenge to standing have appellees mination that Inter- that on the surcharge ground interim the 2.5% per- April order Commission’s state Commerce was not issued effect surcharge to take mitting En- the National requirements compliance with C. U. S. Act of 1969 Policy (NEPA), vironmental hold seq. to et The Court goes however, § 4321 on, lacked opinion III District Court Part of its imple- injunction barring power preliminary to issue mentation of the due to the Commission’s surcharge suspension alleged comply failure to with NEPA in the rate stage proceeding. of the The Court’s decision respect is, very this to sure, one; narrow decision clearly scope concerns only the remedies available to the District Court in par- the context of a this case of character,1 ticular is, suspension an ICC rate case. only Given that the Court holds the District Court lacked power grant injunctive preliminary relief, presumably it remains open appellees challenge alleged the Commission’s failure comply suspension stage proceedings with NEPA in the con cerning surcharge declaratory the interim in an action for relief. today deny anything opinion Nor does in the Court’s to the dis-
725 or whether deciding refrains from specifically The Court with' comply failure to alleged not the Commission’s subject for proper stage in the is suspension NEPA adequate constitute judicial if what would so, review and, adminis- in the juncture with NEPA at that compliance ante, Nonetheless, n. 22. 698-699, at process. trative See of the Court’s join portion I unable the third am judi- no of I am is lack convinced that there opinion, injunction preliminary against cial issue a power to I there- in the cases. surcharge interim context of these III of the from Part respectfully fore must dissent opinion. Court’s analysis
At of outset, purposes it is essential for put upon disposes the issue which the cases Court perspective. Court proper only Since the addresses power prelimi- issue the District to grant Court’s relief, we nary must, course, assume the sake argument the issues which the Court does not now namely, whether the procedural requirements of reach — 2 NEPA applicable are suspension stage and whether the issue compliance of Commission a proper judicial one for review3 —are to be appellees’ decided in In favor. we addition, accept present must for the appellees’ assertions the interim rais- surcharge, power enjoin trict courts comply Commission particular NEPA in the context of a proceeding long rate so as no injunction barring is issued implementation themselves, of the rates Atchison, cf. T. & S. Trade, F. R. Co. v. post, Wichita Board of p. 800. 2 particular See in (2) (C) Act, 102 42 U. S. C. (2) (C). § 4332 3 g., Cf., Upper e. Stans, (CA10 Pecos Assn. v. 1233 F. 2d 1971), vacated and remanded for sub of mootness nom. consideration Upper Pecos Peterson, (1972); Assn. v. S. U. Calvert Coordinating Energy Comm’n, Comm. v. Atomic 146 U. S. Cliffs’ App. City D. C. (1971); F. 2d 1109 v. New York United States, Supp. (EDNY 1972). 337 F. 158-160 *48 further will materials, recyclable shipping cost of the ing between disparity unjustifiable allegedly the accentuate ship of the cost materials those shipping cost the encouraging irrationally thereby goods, primary ping degrada a further lead which will primary goods use considering words, In other our environment. tion of cor accept we must power, judicial the question there that Court’s determination of the District rectness erred had that Commission likelihood” “strong awas “ have ‘will surcharge the interim that its conclusion of the . quality on . effect . no significant adverse Environ meaning of the within the human environment ” 201, Policy 346 F. at Supp., Act of mental effectively the Commission a that had excused conclusion compliance procedural requirements from with the of the S. C. surcharge, NEPA the context see U. (2) (C). §4332
Turning then
judicial power,
to the issue of
it must
first be recalled
we deal
grant
only
that
here with the
preliminary
a
injunction;
Court did not
District
permanently enjoin enforcement
the interim surcharge
upon determining that the
had,
Commission
in all likeli
failed
hood,
comply
NEPA
the suspension
stage. Properly
I
viewed,
injunction
think the
at issue
in this case
to nothing
amounts
more than a legitimate
effort
Court,
District
following the Commission’s
refusal to suspend the surcharge, to maintain the status
quo pending
judicial
final
determination of the legality
action
Commission’s
suspension
stage in
light of the requirements of NEPA. And, by now, the
equitable power of the federal courts to grant
interim
injunctive relief pending determination of
appeal
an
is
well established. The nature of
power
explored
at length by the Court in Scripps-Howard Radio, Inc. v.
FCC,
“No court make time stand still. may controversy change surrounding cumstances irrevocably pendency despite of an during appeal, limits anything court can do. But these within appellate it reasonable an court should be *49 prevent irreparable injury parties able to to or the public to the resulting premature from the enforce- ment of a may determination which later found to wrong. always have been It has been there- held, fore, part that a of as its equipment traditional the administration of justice, stay a federal court can judgment the enforcement of a the outcome pending Id., appeal.” of an at 9-10. FTC Co., Dean
See v. Foods 597, also 384 U. S. (1966); Whitney National Bank in Parish v. Jefferson Bank New Co., Orleans & Trust 379 U. S. of (1965).
This Court consistently has to adhered the view that will find it federal courts to of deprived have been their power traditional stay only to under orders review the face of the possible clearest evidence of a congres- sional intent to do Scripps-Howard Radio, so. See Inc. FCC, v. supra, at 11, 15. No such clear intent tois be found in the Interstate Commerce Act, at least not respect to a case such as this where the Commission already has on acted the relevant issue and the lies issue in an area outside the exper- Commission’s traditional tise.4 In Arrow Transportation Co. v. Southern R. 4Thus, I accept cannot the question Court’s assertion that here is “whether in specific a context NEPA sub silentio revived ac- specifically Court this (1963), Co., S.U. legislative that be said cannot knowledged “[i]t power to Com- suspension of the history grant of ex- design of to evidence unambiguous mission includes prior may existed power have judicial whatever tinguish in the powers Com- suspension of establishment to [the Arrow Court rates.” suspend proposed mission] statutory seven- by injunction the to extend asked (7), because C. 15§ see 49 U. S. period, suspension month the lawful- a decision not reached Commission had suspension of at the end rates proposed ness voluntary period carriers, following rail period and the the rate implement threatening were suspension, Despite action. final awaiting agency change without upon history, Court, legislative ambiguity the character and reasons careful examination of must Congress scheme, concluded suspension power deprive have intended the federal courts suspend pending completion agency rates action powers that the equitable thus traditional the fed- eral courts had been But, overridden to extent. detailed consideration of the factors that motivated the *50 Arrow decision in reveals, litigation presents sig- this nificantly problem. different
The Arrow Court injunction felt that an extending suspension period pending final agency action would in- volve a serious, unintended primary intrusion on the jurisdiction of the Commission. This problem pri- of mary jurisdiction in aspects had two Arrow. First, where the issue is the of proposed reasonableness an rates, application injunction for an against implementation of judicial power that explicitly had been by Congress.” eliminated Ante, question at That is a which I do not need believe ever be here, reached Congress for—as shall be not, begin with, has seen— deprived the federal equitable powers courts of their traditional in the context of these cases. necessarily final action would pending agency
those rates final pass court “to before Commission require federal a rate,” of of upon question action reasonableness advisory thereby S., effect, at an providing, U. an judicial opinion to Commission on issue the Commission decide in the first intended that Congress in mat- expertise Certainly, instance. the Commission’s operations recog- of rail carrier economics is well ters the courts should nized, clearly and Arrow indicates that expertise. not interfere with of How- the exercise ever, preliminary of relief here involves no grant such interference with Commission’s initial exercise of particular expertise. its far as I never aware,
So am the Commission has been especially expert deemed matters environmental or policy impact.5 is, It true the Com course, par mission must in the decide first instance whether proposed ticular action “major constitutes Federal action significantly affecting quality the human en thus vironment,” agency compliance with necessitating requirements detailed (2) (C) of NEPA, U. S. C. (2)(C). § 4332 already But that decision had been made in prior this case to the judicial time when intervention the District Court sought con —in trast to the situation Arrow where question reasonableness the rates remained unresolved Commission. Even assuming that some element agency expertise is involved in the decision issue here, the District Court, granting preliminary relief against the interim passed surcharge, only upon a question of which the finally Commission had disposed, namely, impact environmental of not suspending the interim sur *51 5 expertise Administrative surely lodged such matters is with the Environmental Agency Protection and the Council on Environ mental Quality. Thus, once. effect at take it to permitting of
charge here, raised issue particular of the for purposes act agency final with presented was Court District interfering of danger not was ion6 Commission's stayed the it expertise when Commission's appeals.7 final determination pending order jurisdic- primary of problem aspect The other imple- timing was the Arrow upon focused tion concluded The Court new rates. mentation deter- should Commission intended that the had Congress S., 372 U. effect. See take new rates should mine when rate increases impact of as the economic at Insofar per- which a scheme enacted concerned, Congress interests into account the Commission to take mitted the recog- shippers. Congress carriers Thus, both rail persuade the Com- necessity might economic nized that permit go rates to questionable mission to otherwise they and, while unsuspended being investigated, were proposed it allowed most, suspend the Commission only seven (7). rates 49 U. At months, see S. C. time, the same Congress attempted to accommodate economic interests of for it shippers, the Commis- gave power, sion pending final agency action, require rail carriers to maintain detailed re- monies records ceived due to the increase and to compel payment of if a rate refunds increase was ultimately found to be unreasonable.8 See ibid. Jaffe, Cf. L. Judicial Control of Administrative Action (1965). Atchison, Contrast T. & S. F. R. Co. v. Trade, Wichita Board of
post, p. 800.
8Moreover, even if the Commission
require recordkeeping
fails to
payment
and the
sponte, Congress
refunds sua
provided
also
may
mechanism
shippers
initiate an action before the
reparations
Commission to seek
from a
ground
carrier on the
particular rates are unreasonable. See 49 U.
(1).
S. C. §13
Transportation
Arrow
Co. v. Southern
Co.,
R.
731 But where does the make Interstate Commerce Act provision for an accounting people and “refund” to the of our Nation for irreversible ecological damage results from rate increase which discriminates unrea- sonably recyclable against materials and has been allowed compliance to take effect without the procedural with 9 today of NEPA? requirements says The Court judicial suspension noncompliance allow with “[t]o would disturb the careful balance of NEPA, interests” in struck Congress suspension provi- refund Ante, sions. at simple 697. Yet the fact is that (1963), sure, to be did not dispute involve an between economic shippers carriers, was, instead, brought by and rail but an action water challenged carriers contended that certain decreases competing designed destroy rates of rail carriers were them rather legitimate objectives. Obviously, than to reach economic reparation provisions refund and of the Interstate Commerce they were no Act of more value to the water carriers in Arrow than nonshipper appellees But, are to the in this case. as the Court pointed Arrow, competing out in over rates between car- “[c]onflicts long were riers familiar to Commission before enactment of [the suspension provisions] Indeed, provision .... another [namely, (2)] very U. S. C. same statute estab- § [that suspension powers] Congress explicitly lished the . . . dealt with the competing reduction of rates railroads with water carriers . . . . Act, 8, private right In addition 8 of the 49 U. S. C. creates a § damages upon action conduct violative of the Act—which —based might S., . Thus, be available . . .” 372 U. Congress at 669. had account, provided into had for, disputes competing taken between carriers, as shippers carriers, well between in enacting the sus- pension provisions. The same hardly can be said for conflictsbetween policies the environmental suspension NEPA and the Commission’s power. 9Indeed, given public the substantial element of interest stake this, case it appropriate in a such as recall Mr. Justice Stone’s oft-quoted equity frequently may, do, admonition: "Courts of go give much farther both and withhold relief in furtherance of the public they go only private interest than are accustomed to when Virginian interests Systems are involved.” R. Co. v. Federation No. (1937). U. S. scheme no bal- suspension and refund carefully designed in- environmental to the respect ance was struck NEPA by Congress recognized been that have terests into suspension provisions since introduction *53 circum- these Act. Under Commerce the Interstate part on hardly infer an intent can we stances, tradi- courts of their the federal deprive to Congress equi- upon request in passing responsibility, tional particular an each accommodation relief, table to work parties10— of the relevant interests competing case of the for increased in- need alleged of a is, that rail carrier’s day that be forever lost each come that will otherwise and of the extent ir- charged rate the new is not if the damage might result reversible environmental suspended. Court, not The District its rates are quo preserve pending the status final review effort to April order, full consider- gave of the Commission’s parties ation of either or granting to effects all preliminary surcharge.11 the interim denying against relief I temporarily In enjoining then believe surcharge, scope District Court acted within its legitimate powers. then,
To I summarize, obviously cannot agree with policies the Court’s assertion “each of the that we in Arrow identified as the basis for would (7) substantially undermined if the courts were found' to suspension powers simply have noncomplianee because Ante, alleged.” NEPA was at 696. In Arrow it- self, pains point Court was to out that its deci- Bowles, Hecht (1944). Cf. Co. v. S.U. 329-330 11Thus, fully recognizing Court, plight the District the financial carriers, carefully injunction the rail preliminary limited its application surcharge recyclable materials, of the interim “allowing surcharge rail to collect the on all [the carriers] non- recyclable goods.” Supp., 346 F. at 202. way any upon decisions
sion did not "reflect judicial power preserve limited have recognized quo in- jurisdiction or status court’s maintain the junction agency’s through review of an action pending prescribed statutory channels.” 372 U. at 671 n. S., say went on to there that the Court True, “[s]uch power . . has never been recognized derogation . purpose judicial power such to oust congressional a clear as that manifested in Interstate Act.” Commerce import Ibid. But of that remark must be judged with a full of the factors understanding underlying the Arrow finding pur- Court’s of “such a clear congressional pose.” As been analysis has close those factors seen, certainly compel identified does not extension of the Arrow holding request preliminary injunctive to the relief in this litigation.12 The Court would do well re-
12 pointed experience judicial The Arrow Court also out that injunctions against prior rates to the establishment of the Commis suspension powers (7) disparity sion’s had “resulted shippers, carriers, treatment as between different and sections of the country, causing hardship general in turn ‘discrimination and to the ” public.’ S., at 664. U. These results were due both conflicting power enjoin views of lower federal courts as to their pending agency rates determination of their lawfulness and conflict ing judgments of different courts as to the reasonableness of the same id., danger conflicting judgments rates. See at 663-664. But concerning shippers the same rates and unevenhanded treatment of carriers, merely fortuity particular judicial because of the they located, present where, here, in which district are as not allegation require is that the Commission has failed to follow the regulatory ments of a statute —NEPA—relevant to the exercise of its jurisdiction has, joined consequence, the Commission been long in the as a defendant. So as the suit Commission has been party, possible uniformity made a it is to ensure of treatment enjoining suspension powers the Commission to exercise its where comply failure to with NEPA is believed to exist. This is what the enjoined per did here when District Court it the Commission “from mitting per surcharge” . the cent . . 2.5 collected the rail deprive Congress wished member that “[w]here enjoin pend orders power historic [to courts of [their] Scripps- apt words .” knew how to use ... review], it ing FCC, Hecht Radio, S., v. Cf. Howard Inc. 316 U. Bowles, (1944). Nothing in Co. v. U. S. inor of the Interstate Commerce Act language Act even in our decision of that or particular structure done compels Congress in Arrow conclusion that has I ulti must therefore from Court’s so here. dissent of these cases. disposition mate *55 “pending carriers further order of this court.” See Jurisdictional may danger conflicting 30a. It be that results Statement party where the Commission has not been made a would warrant staying hand, problem a court its but that is not a here.