Assure Competitive Transportation, Inc. v. United States

Nos. 79-2308, -2391 (635 F.2d 1301) (7th Cir. December 30, 1980)

ELR Digest

The Seventh Circuit Court of Appeals rules that the Interstate Commerce Commission's (ICC's) modification of the criteria applied in evaluating motor common carrier applications violates neither the National Environmental Policy Act (NEPA), the Energy Policy and Conservation Act, nor ICC regulations by not requiring preparation of energy and environmental impact statements. The ICC adopted a modified policy regarding the criteria used to issue certificates of public convenience and necessity authorizing motor common carrier operations. The altered policy places less emphasis on protection of existing carrier services and requires that more emphasis be given to promoting competition within the industry. Petitioners contended that the policy statement is a major federal action within the context of NEPA, the standards are arbitrary and capricious, and the policy statement violates the Interstate Commerce Act. The court rules that modification of ICC policy is not a major federal action under § 102(2)(C) of NEPA, and the Commission did not abuse its discretion in determining that the new standards will not significantly affect the environment. Similarly, the court rejects petitioners' contention that § 382(b) of the Energy Policy and Conservation Act requires preparation of an energy impact statement. The court further determines that modification of policy is within ICC's discretion as long as applications are granted on the basis of a finding of present or future public convenience and necessity. Moreover, respondent's decision to alter its policy is neither arbitrary, capricious, nor an abuse of discretion.

The full text of this opinion is available from ELR (10 pp. $1.75, ELR Order No. C-1243).

Counsel for Petitioners
Gregory A. Stayart, Daniel C. Sullivan
Sullivan and Associates
10 S. LaSalle St., Suite 1600, Chicago IL 60603
(312) 263-1600

Kenneth E. Siegel
American Trucking Ass'n
1616 P St. NW, Washington DC 20036
(202) 797-5000

Counsel for Respondents
John P. Fonte
Office of the General Counsel
Interstate Commerce Commission, 12th St. & Constitution Ave. NW, Washington DC 20423
(202) 275-7312

Robert Lewis Thompson, B. Barry Grossman
Antitrust Division
Department of Justice, Washington DC 20530
(202) 633-2435

Swygert, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]