the Commission did not prohibit rate bureaus from voting on singleline movements nor did it limit consideration of joint line rates to those railroads actually participating in the joint movement. Problems with the pricing proposal would be most severe in the motor carrier industry where it would encourage general rate increases and exacerbate existing distortions such as excessive service competition, fuel consumption, and under-utilization of the trucking fleet. Nonetheless, these are conscientous efforts which should not be overlooked. In selecting six myths for discussion today, I have omitted others. In presenting them, I hope I have steered clear of the trap and added none of my own. And I hope you recognize that time prevents me from being as detailed as the subject deserves. Discussing public policy issues on their merits is one task for which our profession has trained us. In such debate, freeing ourselves from the stale habits of thought which sometimes blind us not only to our self-interest but, more important, to the national interest, is sometimes a difficult task. Disentangling ourselves from the cobwebs of myth is not easy. But I hope we have begun that task today. In closing, I am reminded of a comment of George Bernard Shaw: When you learn something new it always feels at first as if you'd lost something.68 I think much of the apprehension and fear about regulatory reform is that initial sense of loss. It will, I predict, be replaced with a sense of gain-for the industry, for the ICC bar, for consumers, and, most importantly, for the country. BOOKS FOR SALE I.C.C. Reports-Volumes 230, 233, 239, 242, 244, 247, 249, 252, 254, 257, 261, 265, 267, 271, 275, 282, 285, 296, 317, 318, 320, 323, and 324. Please Contact: Mr. Clinton H. Vescelius, 120 Long Ridge Road, Stamford, CT 06904 (203) 356-2790. 68 Major Barbara, Act 3. 1 Bernard Shaw: Complete Plays With Prefaces 120 (1962). I am also reminded of the remark that "institutions do not die, they commit suicide," cited by Mr. Justice Frankfurter in the Exercises in Observance of the 75th Anniversary of the ICC, April 5, 1962. It is to prevent that outcome that we have urged reform and revitalization of government transportation regulation. RECENT COURT DECISIONS JAMES L. HOWE III, Editor Aberdeen and Rockfish R.R. v. Students Challenging Regulatory Agency Procedures (SCRAP); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), Nos. 73-1966 and 73-1971, U.S. (1975). Opinion by Justice White joined by Chief Justice Burger and Justices Brennan, Stewart, Marshall, Blackmun, and Rehnquist. Justice Douglas filed a dissenting opinion and Justice Powell took no part. This is an appeal by the nation's railroads, the United States, and the Interstate Commerce Commission from the judgment of a threejudge Federal District Court which had set aside an order of the ICC terminating a general rate increase proceeding. The lower court had ordered the ICC to reopen the proceeding, prepare a better environmental impact statement, and to hold hearings looking towards reconsideration of its determination not to declare the rate increases on recyclable commodities unlawful. This decision of the Supreme Court reversed the lower court. The Supreme Court recited at some length the rather involved history of the matter at the ICC. For the purpose of this writing the following abbreviated chronology is offered: February 5, 1971 April 24, 1972 June 18, 1972 October 4, 1972 November 7, 1972 March 13, 1973 2.5% across-the-board increase surcharge became effective ICC issued report lifting the previous suspension of the ICC reopened Ex Parte 281 to give further consideration to environmental effects of the increases as applied to rates on recyclables and with consent of the railroads suspended the increases on recyclables for an additional period. ICC circulated a draft environmental impact statement. May 1, 1973 June 7, 1973 June 8, 1973 ICC issued a final environmental impact statement in Chief Justice Burger lifted the preliminary injunction November 19, 1973 Supreme Court vacated the preliminary injunction and remanded to the District Court for reconsideration of its action in enjoining the collection of rates which the ICC had not found to be unlawful. February 19, 1974 D.C. District Court issued its order vacating the ICC Ex Parte 281 action on recyclables (without enjoining the collection of the increases) which the Supreme Court has now reversed in its June 24, 1975 decision. The District Court rested its decision to remand to the ICC on the ICC's failure to comply with NEPA. The failure was two-fold. First, no oral hearing had been held after circulation of the draft environmental impact statement and before the preparation of the final statement. Second, the District Court found the final environmental impact statement deficient in that it did not sufficiently analyze the underlying rate structure of recyclables and should have explored more extensively the price sensitivity of recyclables as related to freight rates. The Supreme Court found that the ICC had adequately complied with NEPA procedures and reversed the District Court on these grounds. As to the lack of oral hearing after issuance of its draft environmental impact statement the court said: NEPA provides that "such statement . . . shall accompany the proposal through the existing agency review processes" (emphasis added). This sentence does not, contrary to the District Court opinion, affect the time when the "statement" must be prepared. It simply says what must be done with the "statement" once it is prepared-it must accompany the "proposal." The "statement" referred to is the one required to be included "in every recommendation or report on proposals for . . . major federal actions significantly affecting the quality of the human environment" and is apparently the final impact statement, for no other kind of statement is mentioned in the statute. Under this sentence of the statute, the time at which the agency must prepare the final "statement" is the time at which it makes a recommendation or report on a proposal for federal action. Where an agency initiates federal action by publishing a proposal and then holding hearings on the proposal, the statute would appear to require an impact statement to be included in the pro posal and to be considered at the hearing. Here, however, until the October 4, 1972 report, the ICC had made no proposal, recommendation or report. The only proposal was the proposed new rates filed by the railroads. Thus, the earliest time at which the statute required a statement was the time of the ICC's report of October 4, 1972-sometime after the oral hearing. Assuming that the ICC erred in failing to prepare a separate formal environmental impact statement to accompany its October 4, 1972 report or that the consideration given to environmental factors in that report was inadequate, the ICC need not have “started over again." To the extent that the District Court's conclusion to the contrary is based on its belief that the draft statement of March 1972, had to be considered at a hearing, it is incorrect for the reasons stated above. To the extent that it is based on the District Court's belief that the ICC did not in good faith reconsider its October 4, 1972, order in light of the impact statement, the District Court's decision is without support in the record. The ICC was in as good a position to correct a statutory error by integrating environmental factors into its reopened Ex Parte 281 and into its decision in May 1973, as it would have been if the October 4, 1972, report had never been written; this it proceeded to do and we perceive no basis for affirming the District Court's decision in this respect. As to holding of the District Court that the environmental impact statement was deficient the Supreme Court simply found that the lower court erred and that the Commission had made a thorough enough review of the environmental aspects of the matter before it to satisfy NEPA. In addition to the issue of compliance with NEPA the Supreme Court had before it the question of whether the District Court had jurisdiction to review the Commission's action at all. The railroads argued that the decision of the Commission was not reviewable since it was a general revenue proceeding. Without ruling on the question of reviewability of general revenue proceedings absent NEPA considerations the Supreme Court held flatly that when NEPA is involved as it was in the case below the decision is reviewable (at least as to the compliance with NEPA). It said: The interim nature of a general revenue proceeding may be relevant to the question of the extent of the consideration of environmental facts required, but its nature does not prevent review of the question, finally decided by the ICC, whether the environmental impact statement prepared for that proceeding, is adequate. Our holding here is in no way inconsistent with our conclusion in SCRAP I that NEPA does not repeal by implication any other statute. We do not hold that NEPA supplies the courts with otherwise nonexistent power to prevent collection of rates; and we do not hold that NEPA permits review of the question of the justness or reasonableness of rate increases, either general or specific, at any earlier time than would otherwise have been permissible. NEPA does create a discreet procedural obligation on government agencies to give written consideration of en vironmental issues in connection with certain major Federal actions and a right of action in adversely affected parties to enforce that obligation. When agency or departmental consideration of environmental factors in connection with that "Federal action" is complete, notions of finality and exhaustion do not stand in way of judicial review of the adequacy of such consideration, even though other aspects of the rate increase are not ripe for review. DECEASED Andrew P. Martin (A29C), 1800 Union Commerce Building, Cleveland, OH 44115 (July 17, 1975) Joseph M. Neath, Jr. (A57), Warner, Norcross & Judd, 900 One Vandenber Center, Grand Rapids, MI 94502 M. E. Newcomer (A41), Attorney at Law, 1800 Union Commerce, Cleveland, |