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Cross-Sound Ferry Servs., Inc. v. United States

Citation: 8 ELR 20311
No. No. 77-4162, 573 F.2d 725/11 ERC 1889/(2d Cir., 03/13/1978)

The court denies a petition for review of an Interstate Commerce Commission (ICC) order granting a conditional certificate of public convenience and necessity and affirms the ICC's conclusion that its decision is not a "major Federal action" under the National Environmental Policy Act (NEPA), thereby denying petitioner a right to a hearing on the environmental issues. Petitioner argued that the grant of operating rights to intervenor Mascony Transport and Ferry Service, Inc. (Mascony) was invalid because (1) the ICC arbitrarily and capriciously permitted Mascony to introduce additional evidence after the close of the record while forbidding the admission of additional evidence from petitioner; (2) the ICC did not act in conformity with NEPA; and (3) the ICC erred in finding that Mascony was "fit, willing, and able to perform" the requested ferry service across Long Island Sound. The appropriate test is one of rationality; the order may not be overturned if it was based on substantial relevant evidence, was fairly ascertained, and if the ICC made no clear error of judgment. The court rejects the first argument because petitioner was able to respond to additional evidence tendered and because administrative agencies have broad discretion regarding the updating of evidence. No unfairness was present in this respect. On the NEPA claim, although an environmental impact statement was prepared, the court upholds the ICC's determination, after consideration of all relevant material, that the decision was not a major federal action, and petitioner had no right to a hearing on environmental issues. Finally, the ICC has broad discretion to decide on a case-by-case basis whether the applicant is "fit, willing, and able to perform" and the fact that certain safety and docking problems still exist are not sufficient to require a withdrawal of the certificate. The ICC considered all relevant factors, and the court cannot say that its decision was arbitrary, capricious, or an abuse of discretion, or that it was unsupported by substantial evidence.

The full text of this opinion is available from ELR (16 pp. $2.00, ELR Order No. C-1150).

Counsel for Petitioner
Peter A. Greene
Caldwell & Greene
900 17th St. NW, Washington DC 20006
(202) 331-8800

Counsel for Respondents
Ellen K. Schall
Interstate Commerce Commission
12th St. & Constitution Ave. NW, Washington DC 20423
(202) 275-7312

Counsel for Intervenor Mascony Transport & Ferry Service, Inc.
Arthur D. Bernstein
Galland, Kharasch, Calkins & Short
Canal Square, 1054 31st St. NW, Washington DC 20007
(202) 333-2200

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]