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SCRAP v. United States

Citation: 2 ELR 20486
No. No. 971-72, 346 F. Supp. 189/4 ERC 1312/(D.D.C., 07/10/1972)

Plaintiff Students Challenging Regulatory Agency Procedures (SCRAP) obtains an order preliminarily enjoining defendant Interstate Commerce Commission from permitting — and intervenor railroads from collection — that portion of a 2.5 percent across-the-board freight rate surcharge which would apply to materials being transported for recycling purposes. A three-judge court finds that an environmental impact statement must precede the imposition of any temporary or permanent tariffs on such materials. Plaintiff organization has standing to raise the rights of its members and has alleged the requisite injury in fact to them through actual use of the affected environmental resources. NENVIRONMENTAL PROCTECTION AGENCY confers authority on the federal courts to enjoin any federal action taken in violation of its procedural requirements, even if jurisdiction to review the action is otherwise lacking. Judicial insistence on compliance with non discretionary procedural requirements of NENVIRONMENTAL PROCTECTION AGENCY does not interfere with the Commission's substantive discretion to control rates. An order of this magnitude, though temporary and quickly made, is nonetheless "major federal action" within the meaning of NENVIRONMENTAL PROCTECTION AGENCY. A temporary order is not exempt from NENVIRONMENTAL PROCTECTION AGENCY since it can be, as here, an important stage at which to consider enviromental factors. Moreover, speed of decision is relevant only to whether environmental factors are fully considered, not to whether they must be considered at all. NENVIRONMENTAL PROCTECTION AGENCY impact statement is required whenever the proposed action arguably will have an adverse environmental impact, and a mere assertion to the contrary in the Commission's order will not circumvent NENVIRONMENTAL PROCTECTION AGENCY application. Traditional equitable balancing of interests weights in favor of preliminary relief.

Counsel for Plaintiff SCRAP
John F. Banzhaf, III
Peter H. Meyers
2000 H Street, N.W. (Room 301)
Washington, D.C. 20006

Neil Thomas Proto
George Vincent Biondi
John Eric Larouche Of Counsel

Counsel for Involuntary Plaintiff Council on Environmental Quality
Timothy Atkenson
Philip Soper
722 Jackson Place, N.W.
Washington, D.C. 20006

Counsel for Plaintiffs-Intervenors Environmental Defense Fund, National Parks and Conservation Association and Izaak Walton League of America
John F. Dienelt
Scott H. Lang
Environmental Defense Fund
1712 N Street, N.W.
Washington, D.C. 20036

Counsel for Defendant United States
William M. Cohen
Department of Justice
Washington, D.C. 20530

Counsel for DefendantInterstate Commerce Commission
Fritz R. Kahn General Counsel
James F. Tao
Interstate Commerce Commission
Washington, D.C. 20423

Counsel for Defendants-Intervenors Aberdeen and Rockfish Railroad Co.
Charles Horsky
Michael Boudin
888 Sixteenth St., N.W.
Washington, D.C. 20006

Before Wright, Circuit Judge, and Richey and Flannery, District Judges.

District Judge Flannery concurs in the result.