SCRAP II: No Excuse for NEPA Foot-Dragging

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.

The significance of this discrimination is indicated by the magnitude of the problem of solid waste disposal. A littered countryside, mountains of refuse, burgeoning auto graveyards, and the depleted supplies and rising costs of raw materials highlight the potential environmental and economic damage inherent in a failure to find sound answers to this problem. In our urban areas as a whole, the solid waste generated is fast approaching a ton a year for each man, woman, and child.⁴ Recycling can go far to reduce these wastes. It can help eliminate the piles of refuse which must be disposed of by incineration or landfill and reduce the attendant air pollution; it can save both the renewable and non-renewable resources which must be used in manufacturing; and it can help conserve the energy required to process raw materials.

But the Supreme Court seemed unconvinced that the ICC had failed to take appropriate notice of this problem while approving the requested across-the board rate increases. In its first substantive review of NEPA and its second decision in a continuing NEPA challenge to ICC procedures,⁵ the Court exonerated the ICC, but did so only by relying on a unique and intricate series of mitigating circumstances in the Commission's attempt at compliance with NEPA. First, a "general revenue proceeding," the forum in which the ICC approved the substantially across-the-board rate increases proposed by the railroads, is a peculiarly limited administrative proceeding traditionally focused on but one primary line of inquiry, namely the economic condition of the industry. Second, at least some degree of environmental impact analysis was evident prior to the ICC's approval of the increased rates. Third, the percentage increases were "facially neutral," that is, they applied to all commodities, though, of course, absolute value differences were increased. And fourth, the ICC was investigating the discriminatory nature of the underlying rate structure in another, "more appropriate" proceeding.

Though Justice Byron R. White, writing for the majority, narrowed the holding by relying on the existence of all these factors, he left open the interpretation of the Court's position on two important issues of NEPA implementation. First, the opinion implies that the comprehensiveness of a NEPA mandated impact statement can be tailored to the traditional scope and focus of the agency proceeding for which it is being prepared.While some may view such tailoring as loosening what has heretofore been regarded as strict NEPA compliance, a more positive interpretation is that this concept is a reflection of NEPA's broad scope, its applicability to a wide spectrum of diverse governmental proceedings each suggesting its own form of environmental assessment.

More importantly, the Court seemed to loosen the strict requirements of NEPA as to the timing of environmental impact statement preparation.⁶ Calling the report terminating the general revenue proceeding and approving the rate increase the first "recommendation or report on a proposal for … federal action," Justice White concluded that the publication of this report, and not the beginning of the ICC's consideration of the railroads' proposal, was the first time an impact statement was required to be prepared and considered.

History of the Case

A brief and selective sketch of the case's complex procedural history is necessary to an understanding of the issues presented in the Supreme Court's opinion. In a word, the case has been characterized by tortured, bit by bit compliance with NEPA by the ICC, prodded at [5 ELR 10127] each step by government agencies critical of the ICC's impact statements and by environmental advocates stimulating compliance through litigation.

In December 1971, citing higher operating costs and sagging or nonexistent profits, the nation's railroads collectively proposed to increase their freight rates across-the-board by the imposition of a two and a half percent surcharge. Finding that the railroads had a critical and immediate need for revenue, the ICC declined to exercise its power to suspend⁷ these increases.

An unincorporated association of George Washington University law students calling themselves Students Challenging Regulatory Agency Procedures (SCRAP) then filed suit in the United States District Court for the District of Columbia. They contended that, contrary to the commands of NEPA, the ICC had failed to assess adequately the environmental effects of the railroads surcharge before deciding not to suspend it. SCRAP alleged that the surcharge aggravated the already extant disparity in freight rates between virgin and recycled materials, a disparity that penalized scrap material. While ostensibly an across-the-board rate increase, the percentage increase would widen the absolute difference between scrap and virgin materials, deterring to a significantly greater degree the environmentally desirable use of recycled material.

A decision favorable to SCRAP by a three-judge panel headed by Judge J. Skelly Wright enjoining the collection of the surcharge pending NEPA compliance was overturned by the Supreme Court. Without reaching the merits, the high court held that exclusive jurisdiction is vested in the ICC to suspend rates pending its final decision on the lawfulness of those rates.⁸

Meanwhile, on March 17, 1972, the railroads had filed for permanent, selective increases averaging 4.1 percent over the rates pre-existing the imposition of the surcharge. These "selective" increases, however, were nearly as comprehensive as the earlier surcharge and were requested for the same reasons. In April 1972, while under fire from SCRAP for its earlier decision concerning the 2.5 percent surcharge, the Commission exercised its power to suspend the 4.1 percent increases for the maximum seven months (until November 30, 1972) pending an investigation (Ex parte 281) into the lawfulness of these tariffs. Just prior to this action, on March 6, 1972, the ICC had served a meager six-page draft impact statement on all parties and interested governmental agencies. This statement summarily concluded that the ICC had no basis to believe that the environment would be substantially affected by the rate increase.

On October 4, 1972 the ICC issued a report terminating Ex parte 281 by declining to declare unlawful most of the 4.1 percent selective rate increases.⁹ Though the report was unaccompanied by a separate, formal environmental impact statement under § 102(2)(C) of NEPA, it did include some more-than-cursory consideration of environmental issues. It also pointed out that the principal issue in a general revenue proceeding is whether the railroads are in need of additional revenue, and that the consideration of other factors, such as environmental ones, is therefore necessarily abbreviated. Consideration of such factors, the report explained, are relegated to specialized preceedings more appropriate for their in-depth consideration, such as proceedings incident to individual complaints filed under 49 U.S.C. § 13(1) asserting that a particular rate or group of rates, such as rates on recyclables, are unjust and unreasonable or otherwise illegal. The report also pointed out that the ICC had itself begun a separate comprehensive investigation into the entire rate structure, designated Ex parte 270, and was there focusing on the question of whether the rate pattern interfered with the government's environmental program. This report was roundly criticized by CEQ, EPA, and the plaintiffs for its failure to make any substantial investigation of underlying rate discrimination and for displaying the ICC's penchant for retreating behind procedural barricades.

On November 7, 1972, SCRAP moved to enjoin the generally approved 4.1 percent increases, alleging that the October report manifested another ICC avoidance of NEPA mandated procedures. The same day the ICC reversed itself by suspending for another seven months (until June 10, 1973) any of the increases on recycled material, and reopened Ex parte 281 for "the limited purpose of further evaluating, in accordance with [NEPA], the environmental effects [of increased rates on the movement of recycled material.]" As a result of this response SCRAP's motion was denied.

On March 13, 1973, the ICC circulated an expanded draft impact statement to all concerned agencies and parties. Though some of the agencies responding to the draft statement complimented the Commission on the length of its 150-page effort, the evaluating parties were unanimous in their criticism of the statement as inadequate and to adversarial. Parrying or ignoring all criticisms, the ICC published the final impact statement¹⁰ on May 1, 1973, substantively unchanged from the expanded draft, and again maintained that a general revenue proceeding did not provide an appropriate occasion to examine whether the underlying rate structure discriminated, with significant adverse environmental consequences, against recyclable commodities. The Commission concluded that its judgment of the previous [5 ELR 10128] October had been correct and decided to allow its suspension of the rate increase to expire.

SCRAP, joined by the Environmental Defense Fund, again sued to enjoin the rate increases due to go into effect when the suspension was lifted on June 10. The two groups also requested a declaration that the ICC's order declining to declare the rate increases unlawful was itself unlawful because the environmental impact statement was inadequate, and requested an order directing the ICC to reconsider its decision in light of a better impact statement.

The District Court Decision

Over a dissent, the three-judge district court, in a decision written by Judge Wright, vacated the order of the ICC terminating Ex parte 281 and ordered it to prepare a new impact statement, hold hearings on the statement, andreconsider its decision not to find the new rates unlawful. The court based its jurisdiction on the grounds that this was a NEPA case and that the ICC's termination of 281 logically heralded a termination of the environmental concerns involved in 281; thus the question of the adequacy of these concerns was open to review. This was so even though the individual rates were yet to be reviewed by the ICC in proceedings under §§ 13 and 15 of the Interstate Commerce Act because remedies granted under those sections to shippers injured by illegal rates might not be available or adequate for environmentalists. It was emphasized that environmental issues are better considered at a single general revenue proceeding than at countless, individual § 13 hearings, and that environmental degradation occurring while such proceedings continue is irreparable, unlike injury to shippers (for which § 13 procedures were designed) which can be cured by reparations.

The court then attacked the ICC's compliance with NEPA both procedurally and substantively. Quoting liberally from his opinion in Calvert Cliffs' Coordinating Committee v. A.E.C.,¹¹ Judge Wright called the ICC's efforts to comply with NEPA's procedural commands "sorely deficient." He faulted the Commission primarily for using the final impact statement to justify the action already decided upon and expressed in the October 4 report, rather than using the statement as an integral element of its decision-making process. The court demanded that the ICC begin this process all over again, considering the environmental effects illuminated by the statement at all stages.

The district court also concluded that the May 1 impact statement was substantively deficient.Citing its defensive and contentious tone, its refusal to consider negative responses from government agencies more attuned to environmental problems, its lack of analysis of the environmental significance of the underlying rate structure, and its lack of any "price sensitivity study" of the quantitative response of the recycling industry to changes in freight rates, the court demanded that the ICC prepare a new impact statement.

The railroads appealed, claiming that the district court had no jurisdiction, and that the ICC had, at any rate, fully complied with NEPA. On the latter point the ICC joined in the appeal.

The Supreme Court's Decision

All aspects of the Supreme Court's reversal of the district court decision rest on the unique character of the ICC's "general revenue proceeding." Evolving from a procedure approved in United States v. Louisiana,¹² a general revenue proceeding is a course of action whereby the ICC permits substantially across-the-board rate increases to become effective after investigation — by declining to declare them unlawful — without finding that each new rate was lawful and without itself prescribing any of the new rates. The ICC's inquiry in such proceedings has tended to focus on whether the railroads are really in need of increase revenues and has tended to leave for individual rate or refund proceedings under 49 U.S.C. §§ 13 and 15, the problem of determining just which commodities or which routes should bear the increased burden and to what extent. "The general rule," the Court summarized, "has been that the ICC may confine its attention in general revenue proceedings almost entirely to the need for revenue and to any other factors that relate to the legality of the general increase as a whole; and it follows a fortiori that if attention is given to other issues, that attention may be of a limited nature."

Yet in deeming the environmental considerations involved in the general revenue proceeding final and thus reviewable, the Court stated that it is "clearly correct" that "a general revenue proceeding is itself a 'major fedderal action,' … requiring its own final environmental impact statement so long as the proceeding has a substantial effect on the environment." While it is clear that NEPA requires environmental matters to be considered in a general revenue proceeding, the Court implied that the special nature of that proceeding permits less than the strict compliance heretofore required by CEQ guidelines and judicially developed NEPA procedures. A general revenue proceeding's interim nature does not prevent review of the adequacy of the impact statement prepared for that proceeding, but it may be relevant to the question of the extent of the consideration of environmental facts required.

In passing on the adequacy of the scope and content of the May 1, 1973 impact statement itself, the Court again suggested that a NEPA impact statement's comprehensiveness may be tailored to the nature of the proceeding requiring it. "In order to decide what kind of an environmental impact statement need be prepared," the Court declared, "it is necessary first to describe accurately the 'federal action' being taken" (emphasis added). The more final and comprehensive the nature of the "action" taken by the Commission, the more [5 ELR 10129] comprehensive an impact statement is required. Since the decision made by the ICC in the instant case is nonfinal with respect to particular rates and is neutral on its face¹³ in that it is a percentage increase applying both to virgin and recyclable materials, the quantum of environmental imput required by NEPA is correspondingly low.

The significance of this reasoning, which in effect creates a scaled impact statement requirement, is tempered somewhat by the Court's emphasis on the fact that the ICC, pursuant to its traditional wide discretion in postponing comprehensive consideration of specific rates' impacts, had already begun an investigation of the underlying rate structure in a separate proceeding (Exparte 270) and was there considering the environmental impact of rate discrimination against recyclables. Though it pointed to no sign of a rapid conclusion of this investigation, and ignored arguments that the damage to the environment that would occur pending the outcome would be irreparable, the Court agreed with the ICC that Ex parte 270 was a "more appropriate proceeding" in which to address the underlying substance of SCRAP's allegations. Since there was some assurance that eventually the underlying rate structure's environmental impact would be determined, the Court decided that the limited environmental impact statement in dispute was adequate in the context of a limited general revenue proceeding.

This reasoning does not necessarily suggest that the court will allow an agency to postpone consideration of complex environmental questions by alluding to assessments in progress elsewhere. If the NEPA "major federal action significantly affecting the environment" shoe fits, an agency must still wear it. The Court only maintains that different agency feet require differently sized shoes. That a single focus general revenue proceeding requires only a limited environmental impact statement merely reflects a flexibility necessary to NEPA's application to a broad spectrum of federal actions. As the D.C. Circuit said in Scientists' Institute for Public Information v. A.E.C.,¹⁴ "NEPA is not a paper tiger but neither is it a straightjacket. The issues, format, length, and detail of impact statements for [diverse] actions must of course differ…. [T]his variance should be accepted as a healthy reflection of NEPA's broad scope. It should not be twisted into an excuse for not complying with NEPA at all." Were it not for this flexibility courts would be reluctant to apply NEPA to the borderline agency decisions that may barely be "major" federal actions with significant environmental impact.

Such reasoning can also work at the other end of the spectrum. A "scaled" impact statement requirement might easily lead the Court to require program-wide statements when the combined impact of a series of governmental actions threatens environmental damage that one step in the series would not.

Another potential focal point for future litigation was created by the Court's review of the ICC's procedural compliance with NEPA. Striking through the substance to uncover the form, the court sidestepped the lower court's conclusion that the ICC had used the impact statement prepared in March and May of 1973 merely to justify its earlier decision, reported in October, 1972, to approve the rate increase. Instead, the Court focused on the precise language of NEPA to determine the proper timing and dissemination of an environmental impact statement. It decided that "the time at which the agency must prepare the final impact statement is the time at which it makes a recommendation or report on a proposal for federal action" (emphasis the Court's). Since the ICC had made no earlier "proposal," the earliest time that the statute required an impact statement to be prepared was the time of the ICC's report of October 4, 1972, despite the fact that this "report on a proposal" was, for all practical purposes, the conclusion of the Commission's decision-making process leading to approval of the rate increases.

And since NEPA only provides that "such statement … shall accompany the proposal through the existing agency review processes," (emphasis added by the Court) any agency review process occuring prior to the production of something recognizable as a "report or recommendation on a proposal" can proceed without the consideration of an impact statement. Thus the Court concluded that it was unnecessary to hold an oral hearing prior to adopting the final impact statement in May 1973 as the ICC had done prior to filing the October 1972 report. A hearing such as the one held prior to reaching the October decision was not an "existing agency review process" during which an environmental impact statement should have been available, the Court ruled, because it was an element of the proceeding prior to the first appearance of a "proposal." Likewise, the ICC need not have started its entire decision making process over again (as the district court wanted) to allow simultaneous consideration of environmental impacts as long as it can be assumed that the October report and order was in some fashion reconsidered in light of the subsequent environmental impact statement. To the extent that Calvert Cliffs, supra., Greene Co. Planning Board v. F.P.C.,¹⁵ and Harlem Valley Transportation Ass'n v. Stafford,¹⁶ conflict with this reading of the statute, they are implicitly overruled.¹⁷

Exactly what rises to the level of a "recommendation or report on a proposal" so as to trigger the requirement for impact statement preparation remains rather an open question. In the instant case it seems evident that a formal impact statement was not "written early enough so that whatever information is contained [5 ELR 10130] [within it] can practically serve as an input into the decision-making process."¹⁸ In practical terms the ICC made its decision not to declare the rate increase illegal prior to its October 1972 report. Though the Court was no doubt influenced by the fact that the report itself considered environmental factors and was apparently persuaded that the ICC adequately reviewed that decision in light of its later formal draft impact statement, it is easily argued that the formal impact statement was of little practical use as input into the ICC's decision-making process. Triggered only when the October 1972 "proposal" was released, after the essential aspect of the decision-making process was complete, the environmental impact statement and other agencies' criticisms of it seem to have had demonstrably little practical effect on the ICC's decision.

Nor did the Court rely on, or even take cognizance of, the CEQ's quidelines for preparation of environmental impact statements. Nowhere did the Court deal with the very clear policies set forth in 40 CFR § 1500.7: "In particular, agencies should keep in mind that [environmental impact] statements are to serve as the means of assessing the environmental impact of proposed agency actions, rather than as a justification for decisions already made. This means that draft statements on administrative actions should be prepared and circulated for comment prior to the first significant point of decision in the agency review process"¹⁹ (emphasis added).

Rather than the D.C. Circuit's "practical input" yardstick for timing an environmental impact statement, or the CEQ's clearly stated policy, the Supreme Court leaves us with the bare statutory requirement of the production of a "recommendation or report on a proposal" as a triggering device, a criterion open to a variety of semantic interpretations which is certain to be a major issue in future NEPA litigation.

Once again, however, the peculiar procedure of a general revenue proceeding limits the broad application of the Court's reliance on a picayune semantic standard. Indeed, it is this very picayune quality that defeats SCRAP II's usefulness in anti-NEPA arguments. The railroads, the Court emphasizes, have the initiative in setting rates under the Interstate Commerce Act. The ICC has the power, after the exercise of this initiative by the railroads, to declare a rate or group of rates illegal or to suspend them for seven months pending a determination of their lawfulness, but they do not themselves set or even propose the rates. The rate increase is the railroads' proposal, not the ICC's.

Thus in this case, the first federal action, the first report or recommendation on a proposal for federal action came when, in its October 1972 report, the ICC declined to declare the railroads' new rates illegal. In this unique administrative procedure this report is the first manifestation of any governmental decision-making. Only at this time does NEPA's impact statement requirement attach. Prior to October 1972 the decisions were those only of the railroads.

Such a technical preciseness, which seems to counter the spirit embodied in NEPA and expressed in the CEQ guidelines, is so severely dependent on the precise legal powers of the parties to this particular procedure that it have very limited application beyond the context of a general revenue proceeding. Were the ICC to have any role in proposing or setting the increased rates themselves, the implication is clear that a final environmental impact statement would have been required earlier.

It might also be worthwhile to note that the Supreme Court characterized the six-page, March 6, 1972 document as a "brief draft environmental impact statement," whereas the district court ignored it, presumably since it was circulated prior to the railroads' filing of the 4.1 percent increases on March 17, 1972. The high court also refers to the March 13, 1973 statement as the second draft impact statement, again implying that the March 1972 document was a first "draft statement."

This is significant since the district court believed that "no statement was prepared for consideration … by the Commission before issuing its decision on the permanent [4.1 percent] increases [in October 1972]."²⁰ Since no statement was prepared, the district court concluded that the October decision had to be reconsidered in light of the later statement prepared in March and May of 1973.

If the Supreme Court considered the March 6, 1972 document at least a start towards preparing a bona fide impact statement then that draft and the substantial portion of the October report devoted to environmental considerations appear to have been regarded as at least a feeble attempt at complying with NEPA prior to the October 1972 decision. Then what the Court "excuses" by reversing the district court is not an ICC decision reached without the environmental consideration required by NEPA that was then perfunctorily "reassessed" in light of an ex post facto impact statement. What they really excused was a decision reached after a start, albeit an insufficient one, in complying with NEPA, that was later cured by reassessing that decision in light of more formal NEPA procedures. The important point is that the Court recognized that some glimmer of a start towards proper NEPA procedure appeared before that October decision. This recognition confirms their view that NEPA does indeed apply at that stage of the proceeding, even if the inadequate early compliance can be cured by ex post facto formal compliance.

Conclusions

Other federal agencies may find it difficult to extend to their own limited or interim proceedings the SCRAP II concept of trimming the scope of a NEPA statement [5 ELR 10131] to fit the narrow focus of the administrative action. That interim or limited proceedings traditionally focusing on single issues only require limited environmental impact statements and cursory compliance with NEPA procedures seems to be an essential assumption underpinning the Court's acquiesence to the ICC's begrudging compliance with NEPA in this case. But the Court relies too heavily on the particular administrative intricacies of ICC procedure and the particular path that this decision took for SCRAP II to become broad precedent. Likewise, it seems the Court was influenced by the fact that the ICC, though not obeisant in its compliance with NEPA from the start, eventually gave some genuine consideration to environmental factors before reaching a decision. Further, it appears that the majority was not completely convinced that a "facially neutral" rate increase, by increasing in absolute terms an already extent rate discrimination, was itself discriminatory or would have any separate significant environmental impact requiring separate investigation. When these reservations are viewed in the light of the fact, explicitly relied upon by the Court, that the ICC was investigating the environmental impact of the underlying rate structure in a separate proceeding, the holding appears quite limited. Though the Court did approve an impact statement that was uniformly declared inadequate by the court below and by all those agencies commenting upon it, including EPA and CEQ, the pattern of extenuating circumstances in the case was such that it is likely courts will sharply scrutinize arguments advocating a limiting of future NEPA impact statements in proportion to the scope of the agency proceedings requiring them. If existing and long-established agency procedure is not such as to naturally allow the consideration of the full range of applicable environmental matters in a later, more appropriate and detailed proceeding, it is unlikely that a limited impact statement will be acceptable.

The Court's reliance on strict semantics to determine at what stage in a proceeding an environmental impact statement must be prepared is potentially more fertile ground for future agency foot-dragging regarding NEPA compliance. Yet seen in the context of the whole case, this concept, too, must be limited to the particular factual pattern of SCRAP. Particularly essential to this holding are two factors: (a) the existence of ICC NEPA compliance, no matter how paltry or symbolic, prior to October 1972; and (b), the fact that the first legally recognized ICC "action" comes late in the proceeding when the Commission responds to industry initiatives. Unless an agency proceeding closely resembles an ICC general revenue proceeding SCRAP II should prove of little utility.

The Supreme Court ruling is arguably a loosening of specific NEPA procedures, allowing more variable definitions of what it is that constitutes NEPA compliance, that might be applicable to other environmentally significant regulatory proceedings. But while it is a defeat to this extent for the environmental forces, SCRAP II remainsan affirmation of a broad definition of federal action significantly affecting the environment and reflects lower court opinions requiring the application of NEPA to a broad spectrum of governmental actions. Moreover, it is a clear affirmation of the idea that the adequacy of the substance and scope of an environmental impact statement is open to detailed judicial scrutiny.

1. Aberdeen and Rockfish R. Co. v. SCRAP (SCRAP II), 5 ELR 20418, __ U.S. __, (June 24, 1975).

2. 42 U.S.C. § 4321 et seq.

3. United States v. SCRAP (SCRAP II), 4 ELR 20267, (D.D.C. Feb. 19, 1974), three-judge court, Wright, J.; see also Comment, SCRAP v. U.S.: The ICC's Impact Statement on Freight Rates is Held Adequate, 4 ELR 10045 (1974).

4. Science and Public Affairs, "Energy Conservation and Waste Recycling," April 1973, pp. 13, 17.

5. See United States v. SCRAP (SCRAP I), 3 ELR 20536, 412 U.S. 669 (1973); for earlier decisions in this case see 3 ELR 20525 (D.D.C. June 7, 1973); 3 ELR 20308 (D.D.C. Jan. 9, 1973); and 2 ELR 20486 (D.D.C. 1972).

6. As outlined by CEQ Guidelines for Preparation of Environmental Impact Statements, 40 CFR §§ 1500.2, .3, .6, and .7, ELR 46003 et seq. (1973); and as judicially developed in such cases as: Calvert Cliffs Coordinating Committee v. A.E.C., 1 ELR 20350 (D.C. Cir. 1971); SIPI v. AEC, 3 ELR at 20532 (D.C. Cir. 1973); and Sierra Club v. Morton (Mineral King), 2 ELR 20576 (N.D. Cal. 1972).

7. 49 U.S.C. § 15(7) (1970); pending a determination of the lawfulness of the rates set by the railroads, the ICC can suspend those increases for up to 7 months.

8. United States v. SCRAP (SCRAP I), supra. n.5.

9. Ex Parte No. 281, Increased Freight Rates and Charges, 1972, 341 ICC 288 (1972).

10. Ex Parte 281, Increased Freight Rates and Charges, 00920, Order No. EIS 73-0920F, available from the Environmental Law Institute.

11. 1 ELR 20346 (D.C. Cir. 1971).

12. 290 U.S. 70, 76-78 (1933).

13. See fn. 23 of the Court's opinion, and the text preceding it.

14. 3 ELR 20525, 20531-32 (D.C. Cir. 1973).

15. 2 ELR 20017 (2d Cir. 1972).

16. 4 ELR 20638 (2d Cir. 1974).

17. See fn. 20 of the Court's opinion 5 ELR 20425.

18. SIPI v. AEC, 3 ELR 20525, 20532 (D.C. Cir. 1973).

19. ELR 46003 et seq.

20. 4 ELR 20267 at 20268.