Scrap v. United States

Civ. Action No. 971-72 (D.D.C. June 7, 1973)

A three-judge federal court grants a temporary restraining order enjoining the I.C.C. and the railroads from enforcing an increased permanent freight rate on goods shipped by rail for the purposes of recycling. The court finds sufficient likelihood that plaintiffs will prevail on the merits, that irreparable injury from the unnecessary and irreversible extraction of raw materials will result from the higher rate, and that the railroads will not be harmed by the delay. For other opinions in this case see 2 ELR 20486, 2 ELR 20491, 3 ELR 20308, and 3 ELR 20536. The restraining order granted in this case was stayed the next day by Chief Justice Burger sitting as Circuit Justice, and this stay was affirmed by the Supreme Court, 41 USLW 3672 (June 26, 1973).

For Counsel for Plaintiff SCRAP, Plaintiffs-Intervenors Environmental Defense Fund, National Parks and Conservation Association, and Izaak Walton League of America, Involuntary Plaintiff Council on Environmental Quality, Defendant United States, Defendant Interstate Commerce Commission, and Defendants-Intervenors Aberdeen and Rockfish Railroad Co., see 2 ELR 20486.

Counsel for Plaintiff-Intervenor National Association of Secondary Materials Industries, Inc.
Edward L. Merrigan
Smathers, Merrigan and O'Keefe
1700 Pennsylvania Ave., N.W.
Washington, D.C. 20006

Before WRIGHT, Circuit Judge, and RICHEY, and FLANNERY, District Judges.

[3 ELR 20536]

TEMPORARY RESTRAINING ORDER

This cause having come on to be heard on themotion of plaintiff and intervening plaintiffs for a temporary restraining order enjoining collection of rate increases relating to goods being transported for purposes of recycling; and due notice having been given to defendants; and the court having considered the memorandum filed in support of said motion and the memorandum filed in opposition thereto; and having considered the arguments of counsel, the court finds:

Plaintiff and intervening plaintiffs have made a sufficient showing of likelihood of prevailing on the merits to justify interlocutory injunctive relief. Issuance of such injunctive relief will not substantially harm the railroad.

The court specifically finds that without such relief irreparable injury will occur, in that increased freight rates on goods shipped for purposes of recycling will result in unnecessary and irreversible extraction of raw materials. See S.C.R.A.P. v. United States, D D.C., 346 F. Supp. 189, 201 (1972).

It is therefore, this 7th day of June 1973,

ORDERED by this court that defendants United States of America and Interstate Commerce Commission and defendants-intervenors Aberdeen & Rockfish Railroad Company and all other railroad intervenors in this proceeding, and each of them, their agents, successors, deputies, servants and employees, and all persons acting by, through or under them or either of them or by or through their order, be, and they are hereby, temporarily enjoined until further order of this court from collecting the rate increases referred to in the orders of the Interstate Commerce Commission of October 4, 1972 and May 7, 1973 in Ex Parte 281 insofar as these rate increases relate to goods being transported for purposes of recycling. This temporary restraining order shall apply to shipments originating after June 7, 1973 and moving under transit arrangement.