Hard cases make bad law. So do unique, serpentine factual patterns. In a seven to one decision handed down June 24 in just such a case,¹ the Supreme Court "excused," in the words of dissenting Justice Douglas, "a history of foot-dragging" by the Interstate Commerce Commission in complying with the mandates of the National Environmental Policy Act (NEPA).² The Court reversed a three-judge district court decision³ that held inadequate the ICC's environmental impact statement on proposed increased rates for rail freight including recyclables. But the Court's apparent relaxation of NEPA's impact statement requirements is significantly limited to the peculiarities of the proceeding under review.

The nation's railroad, environmentalists charge, discriminate in their rate schedules against recyclable commodities in favor of virgin materials, forcing scrap materials to pay for more than their fair share of the ride. This practice has an allegedly direct effect on the economic efficacy of recycling programs. The discriminatory practices have been exacerbated, it is claimed, by across-the-board increases requested by the railroads in 1972 and approved by the ICC.