Jump to Navigation
Jump to Content

Aberdeen & Rockfish R.R. v. SCRAP

Citation: 5 ELR 20418
No. No. 73-1966, 422 U.S. 289/7 ERC 2009/(U.S., 06/24/1975) Rev'd

The Supreme Court reverses a three-judge district court decision that held inadequate the ICC's compliance with NEPA in assessing the environmental impact of a general railroad freight rate increase on the recycling industry. Relying on the long-established and limited character of the ICC's "general revenue proceeding" at which such increases are approved, and emphasizing that the ICC was investigating in a "more appropriate proceeding" the existing rate structure's discrimination against recyclables which the general increase exacerbated, the court finds that the ICC was justified in limiting the scope of the impact statement largely to the effect of the increase rather than including an extended environmental examination of the underlying rate structure. The across-the-board percentage increase in freight rates is facially neutral in its environmental effect, and the ICC need not "start over again" its decisionmaking process in order to reflect a wholly new environmental assessment. In a case such as this where a federal agency is not proposing an action but is instead considering a proposal by a nonfederal party which requires federal approval, the first point at which an impact statement must be prepared is when a recognizable "recommendation or report" for federal action (i.e., approval) appears.

Justice Douglas dissents, arguing that the majority's ruling excuses a history of foot-dragging by the ICC on NEPA compliance, and pointing out that the "more appropriate proceeding" investigating the environmental effects of the underlying rate structure may go on indefinitely while irreparable environmental damage occurs. For the district court ruling, here reversed, see 4 ELR 20267. See also Comment, SCRAP II: No Excuse for NEPA Foot-dragging, 5 ELR 10126.

Counsel for Petitioner Aberdeen and Rockfish Railroad Co.
Charles A. Horsky
Michael Boudin
Walter Hellerstein
Covington & Burling
888 16th St., N.W.
Washington, D.C. 20006

Counsel for Petitioner Interstate Commerce Commission
Charles White General Counsel
Interstate Commerce Commission
12th & Constitution Aves., N.W.
Washington, D.C. 20423

Counsel for Petitioner-Intervenor Railroads
T. A. Miller
So. Pacific Transportation Co.
1 Market St.
San Francisco, Cal. 94105

Edward A. Kaier
1600 #3 Penn Center
Philadelphia, Pa. 19102

Albert B. Russ, Jr.
Seaboard Coast Line
P.O. Box 27581
Richmond, Va. 23261

Counsel for Respondents SCRAP and Environmental Defense Fund
John F. Hellegers
Environmental Defense Fund
1525 18th St., N.W.
Washington, D.C. 20036

Counsel for Respondent-Intervenor National Ass'n of Recycling Industries
Edward L. Merrigan
Smathers, Merigan & Herlong
888 17th St., N.W.
Washington, D.C. 20006

Counsel for Respondent-Intervenor Institute of Scrap Iron and Steel, Inc.
E. Bruce Butler
Patton, Boggs & Blow
1200 17th St., N.W.
Washington, D.C. 20036

MR. JUSTICE POWELL took no part in the consideration or decision of this case.