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New York Auth., Port of v. Interstate Commerce Comm'n

Citation: 2 ELR 20105
No. Nos. 71-1769, -1770, 451 F.2d 783/3 ERC 1691/(2d Cir., 11/09/1971)

ICC order which allows Penn Central interim increases in rates for lighterage service at New York Harbor pending final Commission decision is not subject to judicial review. The decision not, to suspend the effective date of a proposed tariff change is solely within the discretion of the ICC. Although the Commission's interim allowance of a rate increase may cause increased truck traffic in the city, thereby increasing air pollution, the Commission's failure to file an environmental impact statement pursuant to NEPA does not invalidate its order. The detailed evaluation of benefits and costs required by the Act is not possible in the context of proceedings to determine whether the effective date of a tarriff should be suspended but must await full review by the Commission.

Counsel for Plaintiff
Martin S. Snitow Asst. Corporation Counsel
Municipal Building
New York, N.Y. 10007

Counsel for Defendant
Geraldine R. Keyes Attorney
Fritz R. Kahn General Counsel
Interstate Commerce Commission
Washington, D.C. 20423

Before: MOORE, SMITH and HAYS, Circuit Judges.