United States v. Students Challenging Regulatory Agency Procedures (S.C.R.A.P.), et al

PETITIONER: United States
RESPONDENT: Students Challenging Regulatory Agency Procedures
LOCATION: Wisconsin Eastern U.S. District Courthouse

DOCKET NO.: 72-535
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Federal district court

CITATION: 412 US 669 (1973)
ARGUED: Feb 28, 1973
DECIDED: Jun 18, 1973

ADVOCATES:
Erwin N. Griswold - for the United States and Interstate Commerce Commission
Hugh B. Cox - for the Aberdeen and Rockfish Railroad Company and others
John F. Dienelt - for the Environmental Defense Fund, and others, pro hac vice, by special leave of Court
Peter H. Meyers - for Students Challenging Regulatory Agency Procedures, pro hac vice, by special leave of Court

Facts of the case

Question

Media for United States v. Students Challenging Regulatory Agency Procedures (S.C.R.A.P.), et al

Audio Transcription for Oral Argument - February 28, 1973 in United States v. Students Challenging Regulatory Agency Procedures (S.C.R.A.P.), et al

Warren E. Burger:

We'll arguments next in 72-535 and 562, excuse me, United States and ICC against Students, and Abredeen and Rockfish Railroad against Students.

Mr. Solicitor General.

Erwin N. Griswold:

May it please the Court.

These cases are here on appeal from the decision of a three-judge court, in the district court for the district of Columbia.

The suit was brought there to set aside an order of the Interstate Commerce Commission and it involves questions under the Interstate Commerce Act, the National Environmental Policy Act and other interrelated questions.

I am representing the United States and the Interstate Commerce Commission and Mr. Cox is representing the appellant railroads in number 72-562.

We have filed separate briefs, but there is no diversions between our positions.

The setting of the stage for this case began in December 1971, when the nation's railroads requested special permission from the Interstate Commerce Commission to authorize on short notice, a two-and-a-half percent surcharge on nearly all freight rates across the board.

They asked that this be affective on January 1, 1972.

The Commission disallowed this request on the ground that there was inadequate notice, but it allowed the carriers to refile the proposal to be affective on not less than 30 days notice, and the carriers did refile on January 5, 1972 asking that the two-and-half-percent surcharge become affective on February 5.

Under Section 3 of the Interstate Commerce Act, a rate proposed by a carrier becomes affective unless the Commission suspends it within 30 days.

And this suspension pending on investigation under Section 15(7) is effective for a maximum period of seven months after which the carrier may put the rate into affect unless the Commission prior to that date has completed its investigation and affirmatively found that the proposed rate is unlawful.

In this case, during the 30-day period protests were filed by shippers and other interested parties and environmental groups, including the named appellee here, SCRAP opposed the surcharge on the ground that the prevailing rates structure discourages the movement of recyclable goods and that an across-the-board surcharge would further discourage recycling.

The Commission found that the railroads had a critical need for additional revenue and concluded that the proposed surcharge should not be suspended.

It ordered the carriers, however, to publish permanent increased rates no later than June 5, 1972 and provided that the authority to collect the two-and-half percent surcharge would expire on that date.

The Commission also specifically found that the temporary surcharge would appear to have no significant adverse effect on the environment within the meaning of the Environmental Policy Act and there was evidence before the Commission to support that finding.

The carriers then filed proposed selective increases averaging 4.1% and protests were filed.

On April 24, 1972, the Commission instituted an investigation into the lawfulness of the selective increases and suspended them for the statutory seven month period under section 15(7).

At the same time it authorized the railroads to continue to collect the two-and-half percent surcharge until the end of the suspension period which was November 30, 1972.

A few days later on May 12, 1972 this suit was files by SCRAP and on June 1st, The Environmental Defense Fund and other environmental groups intervened as plaintiffs.

Various defenses to the suit were advanced, but these were rejected by the District Court and on July 10, 1972 that court added an injunction by which the Interstate Commerce Commission is restrained from permitting the railroads to collect the surcharge and the railroads are enjoined from collecting it insofar as it relates to goods being transported for purposes of recycling.

As a result, surcharge is now being collected on recyclable materials.

I have stated the basic facts without bringing in the legal issues.

These are numerous and somewhat intertwined.

Questions relating to the Interstate Commerce Act and the procedures of the Commission will be presented by Mr. Cox.

I would like to repeat though that there is no difference between our positions either in substance or approach and I want to claim the benefit of any argument that he will make.

Warren E. Burger:

We will resume right after lunch.

[Luncheon Recess]

Mr. Solicitor General you may proceed.

Erwin N. Griswold:

The first issue in the case to which I will turn is the familiar question of standing.