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Asphalt Roofing Mfrs. Ass'n v. Interstate Commerce Comm'n

Citation: 8 ELR 20037
No. No. 75-1641, 567 F.2d 994/10 ERC 1916/(D.C. Cir., 10/17/1977)

The court affirms most of a series of Interstate Commerce Commission (ICC) railroad freight rate increases that were challenged for lack of economic justification and on environmental grounds. On the economic issues, the court reiterates the premise that the ICC's decision on whether to suspend a proposed general rate increase is left to the agency's discretion and is not reviewable by the courts. The court concludes that the ICC's decision to permit rate increases to go into effect without suspension or investigation is also unreviewable. The court determines that the ICC's decisions in the rate proceedings rested upon a rational basis because of the financial condition of the railroad industry. On the environmental issues, the court holds that the ICC's threshold determination that preparation of an environmental impact statement (EIS) was not necessary for two rate increases for the recyclable commodities industry was sufficiently documented to be in compliance with the National Environmental Policy Act (NEPA). Furthermore, use of an outside consultant to prepare an EIS for a general revenue increase did not violate NEPA's requirements. The court remands to the ICC two other rate increases for a determination of the impact the increases will have on the quality of the human environment since the agency has failed to articulate the reasons for its finding of no significant impact.

Counsel for Petitioners
William Q. Keenan
Arsham & Keenan
227 Park Ave., New York NY 10017
(212) 759-1000

John A. Whitney, Dickson R. Loos, Barry Roberts
Pope, Ballard & Loos
888 17th St. NW, Suite 700, Washington DC 20006
(202) 298-8600

Counsel for Respondents
Peter A. Fitzpatrick, Ass't General Counsel (with Arthur J. Cerra, General Counsel; Hanford O'Hara, Assoc. General Counsel)
Interstate Commerce Commission, Washington DC 20423
(202) 275-7312

John Osborn, John H. D. Wigger, Carl B. Lawson, John J. Powell, III
Department of Justice, Washington DC 20530
(202) 739-2414

Counsel for Intervenors Western and Southern Railroads, Fertilizer Institute, and Canadian Fertilizer Institute
Richard J. Flynn, John E. Haley, Joseph B. Tompkins, Jr.
Sidney & Austin
1730 Pennsylvania Ave. NW, Washington DC 20006
(202) 872-1730

John D. Conner
Sellers, Conner & Cuneo
1625 K St. NW, Washington DC 20006
(202) 452-7500

Before MR. JUSTICE CLARK,* of the Supreme Court of the United States, and MacKINNON and ROBB, Circuit Judges.