UNITED STATES v. SCRAP

MR. JUSTICE STEWART delivered the opinion of the Court.

Under the Interstate Commerce Act, the initiative for rate increases remains with the railroads. But in the absence of special permission from the Interstate Commerce Commission, a railroad seeking an increase must provide at least 30 days' notice to the Commission and the public before putting the new rate into effect. 49 U. S. C. § 6 (3).1 During that 30-day period, the Commission may suspend the operation of the proposed rate for a maximum of seven months pending an investigation and decision on the lawfulness of the new rates. 49 U. S. C. § 15 (7).2 At the end of the seven-month period, the carrier may put the suspended rate into effect unless the Commission has earlier completed its investigation and found the rate unlawful.3

Proceeding under this regulatory scheme, on December 13, 1971, substantially all of the railroads in the United States requested Commission authorization to file on 5 days' notice a 2.5% surcharge on nearly all freight rates. The railroads sought a January 1, 1972, effective date for the new rates. The surcharge was proposed as an interim emergency measure designed to produce some $246 million annually in increased revenues pending adoption of selective rate increases on a permanent basis.

As justification for the proposed surcharge, the railroads alleged increasing costs and severely inadequate revenues. In its last general revenue increase case, less than two years earlier, the Commission had found:

The railroads alleged that, since the close of that proceeding, their costs had increased by over $1 billion on an annual basis, including $305 million in increased wages, while economic indicators such as decreased working capital and increased debt obligations pointed toward an ever-worsening financial condition.4

In an order dated December 21, 1971, the Commission acknowledged the need, particularly of some carriers, for increased revenues, but it concluded that five days' notice and a January 1, 1972, effective date "would preclude the public from effective participation." Ex parte No. 281, Increased Freight Rates and Charges, 1972, 340 I. C. C. 358, 361. The Commission authorized the railroads to refile the 2.5% surcharge with not less than 30 days' notice, and an effective date no earlier than February 5, 1972.

On January 5, 1972, the railroads refiled the surcharge, to become effective on February 5, 1972. Shippers, competing carriers, and other interested persons requested the Commission to suspend the tariff for the statutory seven-month period. Various environmental groups, including Students Challenging Regulatory Agency Procedures (SCRAP) and the Environmental Defense Fund (EDF), two of the appellees here, protested that failure to suspend the surcharge would cause their members "economic, recreational and aesthetic harm." Specifically, they claimed that the rate structure would discourage the use of "recyclable" materials, and promote the use of new raw materials that compete with scrap, thereby adversely affecting the environment by encouraging unwarranted mining, lumbering, and other extractive activities. The members of these environmental groups were allegedly forced to pay more for finished products, and their use of forests and streams was allegedly impaired because of unnecessary destruction of timber and extraction of raw materials, and the accumulation of otherwise recyclable solid and liquid waste materials. The railroads replied that since this was a general rate increase, recyclable materials would not be made any less competitive relative to other commodities, and that in the past general rate increases had not discouraged the movement of scrap materials.

The Commission issued an order on February 1, 1972, shortly before the surcharge would have automatically become effective. It recognized that "the railroads have a critical need for additional revenue from their interstate freight rates and charges to offset, in part, recently incurred increased operating costs," and announced its decision not to suspend the 2.5% surcharge for the seven-month statutory period.5 In anticipation of the proposed permanent selective increases to be filed by the railroads and to avoid further complication of the tariff rates, the Commission specified that its refusal to suspend was conditioned upon the carriers' setting an expiration date for the surcharge of no later than June 5, 1972.6 The Commission ordered the investigation into the railroads' rates which had been instituted by its December 21 order to be held in abeyance until the carriers requested permission to file the indicated permanent rate increases on a selective basis. With respect to the appellees' environmental arguments, the Commission found that "the involved general increase will have no significant adverse effect on the movement of traffic by railway or on the quality of the human environment within the meaning of the [National] Environmental Policy Act of 1969."

The proposed permanent selective increases, averaging 4.1%, were subsequently filed with the Commission, and various parties again requested that these proposed rates also be suspended. By order served March 6, 1972, the Commission did not grant the railroads' request to have the selective increases go into effect on April 1, 1972, as they had sought but it allowed the carriers to republish their rates to become effective on May 1, 1972, upon not less than 45 days' notice to the public. The carriers did republish the rates, and on April 24, 1972, the Commission entered an order suspending the proposed selective increase for the full seven-month period allowed by statute, or to and including November 30, 1972.7 The investigation into the increased rates was continued. Since the selective increases were to supplant the temporary surcharge, and since they had been suspended, the Commission modified its February 1 order and authorized the railroads to eliminate the June 5 expiration date for the surcharge and to continue collecting the surcharge until November 30, 1972.

I

On May 12, 1972, SCRAP filed the present suit against the United States and the Commission in the District Court for the District of Columbia seeking, along with other relief, a preliminary injunction to restrain enforcement of the Commission's February 1 and April 24 orders allowing the railroads to collect the 2.5% surcharge.

SCRAP stated in its amended complaint that it was "an unincorporated association formed by five law students. . . in September, 1971. Its primary purpose is to enhance the quality of the human environment for its members, and for all citizens . . . ." To establish standing to bring this suit, SCRAP repeated many of the allegations it had made before the Commission in Ex parte 281. It claimed that each of its members "suffered economic, recreational and aesthetic harm directly as a result of the adverse environmental impact of the railroad freight structure, as modified by the Commission's actions to date in Ex parte 281." Specifically, SCRAP alleged that each of its members was caused to pay more for finished products, that each of its members "[u]ses the forests, rivers, streams, mountains, and other natural resources surrounding the Washington Metropolitan area and at his legal residence, for camping, hiking, fishing, sightseeing, and other recreational [and] aesthetic purposes," and that these uses have been adversely affected by the increased freight rates, that each of its members breathes the air within the Washington metropolitan area and the area of his legal residence and that this air has suffered increased pollution caused by the modified rate structure, and that each member has been forced to pay increased taxes because of the sums which must be expended to dispose of otherwise reusable waste materials.

The main thrust of SCRAP's complaint was that the Commission's decisions of February 1 and April 24, insofar as they declined to suspend the 2.5% surcharge, were unlawful because the Commission had failed to include a detailed environmental impact statement as required by § 102 (2) (C) of the National Environmental Policy Act of 1969 (NEPA), 42 U. S. C. § 4332 (2) (C). NEPA requires such a statement in "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment. . . ." Ibid.8 SCRAP contended that because of its alleged adverse impact upon recycling, the Commission's action with respect to the surcharge constituted a major federal action significantly affecting the environment.

Three additional environmental groups, also appellees here, were allowed to intervene as plaintiffs, and a group of railroads, appellants here, intervened as defendants to support the 2.5% surcharge.9 After a single district judge had denied the defendants' motion to dismiss and SCRAP's motion for a temporary restraining order, a statutory three-judge district court was convened pursuant to 28 U. S. C. §§ 2284, 2325, to decide the motion for a preliminary injunction and the cross-motion to dismiss the complaint.

On July 10, 1972, the District Court filed an opinion, 346 F.Supp. 189, and entered an injunction prohibiting the Commission "from permitting," and the railroads "from collecting" the 2.5% surcharge "insofar as that surcharge relates to goods being transported for purposes of recycling, pending further order of this court."10

The court first rejected the contention that the appellees were without standing to sue because they allegedly had no more than "a general interest in seeing that the law is enforced," id., at 195, and distinguished our recent decision in Sierra Club v. Morton, 405 U.S. 727, on the basis that, unlike the petitioner in Sierra Club, the environmental groups here had alleged that their members used the forests, streams, mountains and other resources in the Washington area and that this use was disturbed by the environmental impact caused by nonuse of recyclable goods.

Second, the court found that its power to grant an injunction was not barred by our decision in Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 667, where we held that in enacting 49 U. S. C. § 15 (7), Congress had intentionally vested "in the Commission the sole and exclusive power to suspend" and withdrew "from the judiciary any pre-existing power to grant injunctive relief." The court reasoned that NEPA "implicitly confers authority on the federal courts to enjoin any federal action taken in violation of NEPA's procedural requirements" "so long as the review is confined to a determination as to whether the procedural requisites of NEPA have been followed." 346 F. Supp., at 197 and n. 11.

Finally, turning to the merits, the court concluded that the Commission's April 24 decision not to suspend the surcharge for the statutory seven-month period was a " `major Federal action significantly affecting the quality of the human environment.' " Id., at 199. On the premise that an environmental impact statement is required "whenever the action arguably will have an adverse environmental impact," id., at 201, the court held that "the danger of an adverse impact is sufficiently real to require a statement in this case." Ibid.

The District Court declined to stay its injunctive order pending appeal to this Court, and on July 19, 1972, THE CHIEF JUSTICE, as Circuit Justice for the District of Columbia Circuit, denied applications to stay the preliminary injunction. 409 U.S. 1207. On December 18, 1972, we noted probable jurisdiction of the appeals filed by the United States, the Commission, and the railroads. 409 U.S. 1073.11

II

The appellants challenge the appellees' standing to sue, arguing that the allegations in the pleadings as to standing were vague, unsubstantiated, and insufficient under our recent decision in Sierra Club v. Morton, supra. The appellees respond that unlike the petitioner in Sierra Club, their pleadings sufficiently alleged that they were "adversely affected" or "aggrieved" within the meaning of § 10 of the Administrative Procedure Act (APA), 5 U. S. C. § 702,12 and they point specifically to the allegations that their members used the forests, streams, mountains, and other resources in the Washington metropolitan area for camping, hiking, fishing, and sightseeing, and that this use was disturbed by the adverse environmental impact caused by the nonuse of recyclable goods brought about by a rate increase on those commodities. The District Court found these allegations sufficient to withstand a motion to dismiss. We agree.

The petitioner in Sierra Club, "a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations," 405 U. S., at 739, sought a declaratory judgment and an injunction to restrain federal officials from approving the creation of an extensive ski resort development in the scenic Mineral King Valley of the Sequoia National Forest. the Sierra Club claimed standing to maintain its "public interest" lawsuit because it had " `a special interest in the conservation and the sound maintenance of the national parks, game refuges and forests of the country . . . .' " Id., at 730. We held those allegations insufficient.

Relying upon our prior decisions in Data Processing Service v. Camp, 397 U.S. 150, and Barlow v. Collins, 397 U.S. 159, we held that § 10 of the APA conferred standing to obtain judicial review of agency action only upon those who could show "that the challenged action had caused them `injury in fact,' and where the alleged injury was to an interest `arguably within the zone of interests to be protected or regulated' by the statutes that the agencies were claimed to have violated." 405 U. S., at 733.13

In interpreting "injury in fact" we made it clear that standing was not confined to those who could show "economic harm," although both Data Processing and Barlow had involved that kind of injury. Nor, we said, could the fact that many persons shared the same injury be sufficient reason to disqualify from seeking review of an agency's action any person who had in fact suffered injury. Rather, we explained: "Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process." Id., at 734. Consequently, neither the fact that the appellees here claimed only a harm to their use and enjoyment of the natural resources of the Washington area, nor the fact that all those who use those resources suffered the same harm, deprives them of standing.

In Sierra Club, though, we went on to stress the importance of demonstrating that the party seeking review be himself among the injured, for it is this requirement that gives a litigant a direct stake in the controversy and prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders. No such specific injury was alleged in Sierra Club. In that case the asserted harm "will be felt directly only by those who use Mineral King and Sequoia National Park, and for whom the aesthetic and recreational values of the area will be lessened by the highway and ski resort," id., at 735, yet "[t]he Sierra Club failed to allege that it or its members would be affected in any of their activities or pastimes by the . . . development." Ibid. Here, by contrast, the appellees claimed that the specific and allegedly illegal action of the Commission would directly harm them in their use of the natural resources of the Washington Metropolitan Area.

Unlike the specific and geographically limited federal action of which the petitioner complained in Sierra Club, the challenged agency action in this case is applicable to substantially all of the Nation's railroads, and thus allegedly has an adverse environmental impact on all the natural resources of the country. Rather than a limited group of persons who used a picturesque valley in California, all persons who utilize the scenic resources of the country, and indeed all who breathe its air, could claim harm similar to that alleged by the environmental groups here. But we have already made it clear that standing is not to be denied simply because many people suffer the same injury. Indeed some of the cases on which we relied in Sierra Club demonstrated the patent fact that persons across the Nation could be adversely affected by major governmental actions. See, e. g., Environmental Defense Fund v. Hardin, 428 F.2d 1093, 1097 (interests of consumers affected by decision of Secretary of Agriculture refusing to suspend registration of certain pesticides containing DDT); Reade v. Ewing, 205 F.2d 630, 631-632 (interests of consumers of oleomargarine in fair labeling of product regulated by Federal Security Administration). To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept that conclusion.

But the injury alleged here is also very different from that at issue in Sierra Club because here the alleged injury to the environment is far less direct and perceptible. The petitioner there complained about the construction of a specific project that would directly affect the Mineral King Valley. Here, the Court was asked to follow a far more attenuated line of causation to the eventual injury of which the appellees complained—a general rate increase would allegedly cause increased use of nonrecyclable commodities as compared to recyclable goods, thus resulting in the need to use more natural resources to produce such goods, some of which resources might be taken from the Washington area, and resulting in more refuse that might be discarded in national parks in the Washington area. The railroads protest that the appellees could never prove that a general increase in rates would have this effect, and they contend that these allegations were a ploy to avoid the need to show some injury in fact.

Of course, pleadings must be something more than an ingenious academic exercise in the conceivable. A plaintiff must allege that he has been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency's action. And it is equally clear that the allegations must be true and capable of proof at trial. But we deal here simply with the pleadings in which the appellees alleged a specific and perceptible harm that distinguished them from other citizens who had not used the natural resources that were claimed to be affected.14 If, as the railroads now assert, these allegations were in fact untrue, then the appellants should have moved for summary judgment on the standing issue and demonstrated to the District Court that the allegations were sham and raised no genuine issue of fact.15 We cannot say on these pleadings that the appellees could not prove their allegations which, if proved, would place them squarely among those persons injured in fact by the Commission's action, and entitled under the clear import of Sierra Club to seek review. The District Court was correct in denying the appellants' motion to dismiss the complaint for failure to allege sufficient standing to bring this lawsuit.

III

We need not reach the issue whether, under conventional standards of equity, the District Court was justified in issuing a preliminary injunction, because we have concluded that the court lacked jurisdiction to enter an injunction in any event.

The District Court enjoined the Commission from "permitting," and the railroads from "collecting," the 2.5% interim surcharge on recyclable commodities. Finding that NEPA implicitly conferred authority "on the federal courts to enjoin any federal action taken in violation of NEPA's procedural requirements," 346 F. Supp., at 197, it concluded that our decision in Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, did not affect judicial power to issue an injunction in the circumstances of this case. We cannot agree.

In Arrow, the Commission had suspended a railroad's proposed rates for the statutory seven-month period, and the railroad had voluntarily deferred the proposed rate for an additional five months. When the Commission had not reached a final decision within that period, the railroad announced its intent to adopt the new rates. In a suit brought to enjoin the railroad from effectuating that change, we held that the courts were without power to issue such an injunction. From the language and history of § 15 (7) of the Interstate Commerce Act, we concluded that Congress had vested exclusive power in the Commission to suspend rates pending its final decision on their lawfulness, and had deliberately extinguished judicial power to grant such relief. The factual distinctions between the present cases and Arrow are inconsequential.

It is true that the injunction in Arrow was sought after the statutory seven-month period had expired and thus represented an attempt to extend judicially the suspension period, while here the injunction was issued during the suspension period. But Arrow was grounded on the lack of power in the courts to grant any injunction before the Commission had finally determined the lawfulness of the rates, and that holding did not depend on the fact that the availability of the Commission's power of suspension had passed. Indeed, the federal court decisions cited and approved in Arrow involved instances where the courts had been asked to enjoin rates during the statutory seven-month period. See, e. g., M. C. Kiser Co. v. Central of Georgia R. Co., 236 F. 573, aff'd, 239 F. 718; Freeport Sulphur Co. v. United States, 199 F.Supp. 913; Bison S. S. Corp. v. United States, 182 F.Supp. 63; Luckenbach S. S. Co. v. United States, 179 F.Supp. 605, 609-610, vacated in part as moot, 364 U.S. 280; Carlsen v. United States, 107 F.Supp. 398.

Similarly, there is no significance in the fact that, unlike Arrow, the injunction in this litigation ran against the Commission as well as the railroads. The only way in which the Commission could comply with the court's order would be to exercise its power of suspension and suspend the surcharge. The injunction constitutes a direct interference with the Commission's discretionary decision whether or not to suspend the rates. It would turn Arrow into a sheer formality and effectively amend § 15 (7) if a federal court could accomplish by injunction against the Commission what it could not accomplish by injunction directly against the railroads. And, again, the federal court decisions on which Arrow relied were for the most part cases in which the courts had held that they were without power to compel the Commission to grant a rate suspension. See, e. g., Bison S. S. Corp. v. United States, supra; Luckenbach S. S. Co. v. United States, supra; Carlsen v. United States, supra; cf. Freeport Sulphur Co. v. United States, supra.16

Thus, the only arguably significant distinction between the present litigation and Arrow is that here the Commission allegedly failed to comply with NEPA. However, we cannot agree with the District Court that NEPA has amended § 15 (7) sub silentio and created an implicit exception to Arrow so that judicial power to grant injunctive relief in this case has been revived.17 NEPA, one of the recent major federal efforts at reversing the deterioration of the country's environment, declares "that it is the continuing policy of the Federal Government. . . to use all practicable means and measures . . . in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." 42 U. S. C. § 4331. To implement these lofty purposes, Congress imposed a number of responsibilities upon federal agencies, most notably the requirement of producing a detailed environmental impact statement for "major Federal actions significantly affecting the quality of the human environment." 42 U. S. C. § 4332 (2) (C).18 But nowhere, either in the legislative history or the statutory language, is there any indication that Congress intended to restore to the federal courts the power temporarily to suspend railroad rates, a power that had been clearly taken away by § 15 (7) of the Interstate Commerce Act.

The statutory language, in fact, indicates that NEPA was not intended to repeal by implication any other statute. Thus, 42 U. S. C. § 4335 specifies that "[t]he policies and goals set forth in [NEPA] are supplementary to those set forth in existing authorizations of Federal agencies," and 42 U. S. C. § 4334 instructs that the Act "shall [not] in any way affect the specific statutory obligations of any Federal agency . . . ." Rather than providing for any wholesale overruling of prior law, NEPA requires all federal agencies to review their "present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of [NEPA] and shall propose to the President . . . such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in [NEPA]." 42 U. S. C. § 4333. It would be anomalous if Congress had provided at one and the same time that federal agencies, which have the primary responsibility for the implementation of NEPA,19 must comply with present law and ask for any necessary new legislation, but that the courts may simply ignore what we described in Arrow as "a clear congressional purpose to oust judicial power . . . ." 372 U. S., at 671 n. 22.20

The District Court pointed to nothing either in the language or history of NEPA that suggests a restoration of previously eliminated judicial power. While it relied primarily on the decisions of the Court of Appeals for the District of Columbia Circuit in Calvert Cliffs' Coordinating Comm. v. Atomic Energy Comm'n, 146 U. S. App. D. C. 33, 449 F.2d 1109, and Committee for Nuclear Responsibility, Inc. v. Seaborg, 149 U. S. App. D. C. 380, 463 F.2d 783, neither case supports an injunction under the circumstances of this case. Calvert Cliffs' held that a federal court had power to review rules promulgated by the Atomic Energy Commission, and there the court ordered further consideration of the rules on the ground that there had not been compliance with NEPA. In Committee for Nuclear Responsibility it was held that federal courts had jurisdiction to consider whether an executive decision to conduct a nuclear test had satisfied the procedural requirements of NEPA. The question here, however, is not whether there is general judicial power to determine if an agency has complied with NEPA, and to grant equitable relief if it has not, cf. Arrow Transportation Co. v. Southern R. Co., supra, at 671 n. 22; Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, but rather whether in a specific context NEPA sub silentio revived judicial power that had been explicitly eliminated by Congress. Calvert Cliffs' and Committee for Nuclear Responsibility have nothing to say on this issue, for neither was concerned with a specific statute that restricts the power of the federal courts to grant injunctions.21

Our conclusion that the District Court lacked the power to grant the present injunction is confirmed by the fact that each of the policies that we identified in Arrow as the basis for § 15 (7) would be substantially undermined if the courts were found to have suspension powers simply because noncompliance with NEPA was alleged.

First, Arrow found that the Commission had been granted exclusive suspension powers in order to avoid the diverse results that had previously been reached by the courts. District courts had differed as to the existence and scope of any power to grant interim relief, with the consequence that the uniformity of rates had been jeopardized, and different shippers, carriers, and areas of the country had been subjected to disparate treatment. Similarly, since a suit to enjoin a national rate increase on NEPA grounds could be brought in any federal district court in the country, see 28 U. S. C. §§ 2284, 2321-2325, the result might easily be that the courts would "[reach] diverse results, . . . [engendering] confusion and [producing] competitive inequities." 372 U. S., at 663. In short, a rate increase allowed in New York might be disallowed in New Jersey.

Second, we stressed in Arrow that § 15 (7) represents a careful accommodation of the various interests involved. The suspension period was limited as to time to prevent excessive harm to the carriers, for the revenues lost during that period could not be recouped from the shippers. On the other hand, Congress was aware that if the Commission did not act within the suspension period, then the new rates would automatically go into effect and the shippers would have to pay increased rates that might eventually be found unlawful. To mitigate this loss, Congress authorized the Commission to require the carriers to keep detailed accounts and eventually to repay the increased rates if found unlawful. To allow judicial suspension for noncompliance with NEPA, would disturb this careful balance of interests. A railroad may depend for its very financial life on an increased rate, and the rate may be perfectly just and reasonable. Granting an injunction against that rate based on the Commission's alleged noncompliance with NEPA, although the Commission had determined not to suspend the rate, would deprive the railroad of vitally needed revenues and result in an unjustified windfall to shippers.

Finally, we found in Arrow that any survival of a judicial power to grant interim injunctive relief would represent an undesirable interference with the orderly exercise of the Commission's power of suspension. Similarly, to grant an injunction in the present context, even though not based upon a substantive consideration of the rates, would directly interfere with the Commission's decision as to when the rates were to go into effect, and would ignore our conclusion in Arrow that "Congress meant to foreclose a judicial power to interfere with the timing of rate changes which would be out of harmony with the uniformity of rate levels fostered by the doctrine of primary jurisdiction." 372 U. S., at 668. As the Court of Appeals for the Second Circuit explained in Port of New York Authority v. United States, 451 F.2d 783, 788, where, on the basis of alleged noncompliance with NEPA, an injunction was sought against a Commission order refusing to suspend rates:

Accordingly, because the District Court granted a preliminary injunction suspending railroad rates when it lacked the power to do so,22 its judgment must be reversed and the cases remanded to that court for further proceedings consistent with this opinion.

It is so ordered.

MR. JUSTICE POWELL took no part in the consideration or decision of these cases.

MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN joins, concurring.

I join the Court's judgment and its opinion, but because of the presence of the first sentence of Part III of the opinion, and to avoid any misunderstanding as to my posture, I add a few words.

For the reasons stated in my dissenting opinion in Sierra Club v. Morton, 405 U.S. 727, 755 (1972), I would hold that the appellees here have standing to maintain this action based on their allegations of harm to the environment resulting from the Commission's order of April 24, 1972. And, in evaluating whether injunctive relief is warranted, I would not require that the appellees, in their individual capacities, prove that they in fact were injured. Rather, I would require only that appellees, as responsible and sincere representatives of environmental interests, show that the environment would be injured in fact and that such injury would be irreparable and substantial.

MR. JUSTICE DOUGLAS, dissenting in part.

I

These cases present important environmental problems. They concern ratemaking for the shipment of litter for recycling. Paper, glass, and metals are the main items in today's garbage.1 As indicated by the Bureau of Mines in Appendix I to this opinion. America's method of disposing of garbage is either to use it for landfill or to put it first through incinerators and then to bury the residue. Sorting and recycling have several environmental impacts: (1) reduction in the use of incinerators lessens air pollution; (2) establishing or encouraging removal of litter from the landscape; (3) recycling saves both renewable and nonrenewable resources. As respects the last, the tons of paper that are recycled, rather than burned, can be translated into the number of standing trees that need not be cut for pulp the next year; the metals recycled protect our remaining non-renewable supplies of ore, and so on.

Rates fixed so as to encourage vast shipments of litter are, therefore, perhaps the most immediate and dramatic illustration of a policy which will encourage protection of the environment against several erosive conditions.2 I would, therefore, affirm the eminently responsible decision of the District Court. 346 F.Supp. 189.

The National Environmental Policy Act of 1969, 83 Stat. 852, 42 U. S. C. § 4321 et seq., declares a congressional policy

That broad policy is further expounded in § 4331 (b) to include, inter alia, the objective that "the Nation may . . . (2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings. . . and (6) enhance the quality of renewable resources and . . . depletable resources."

The Government urges that appellees do not have standing to challenge the administrative determination of railroad freight rate increases. SCRAP alleged in its amended complaint that its members suffered environmental and economic injury as a result of the alleged increase, because the increase diminished the total amount of waste recycling in the United States, and made those products, which were in fact manufactured from the waste materials after the rate increase, more expensive in the marketplace. In addition, SCRAP alleged that each of its members in fact used the "forests, rivers, streams, mountains, and other natural resources . . ." for recreational purposes, and these uses were adversely affected because the Commission's rate increases discourage the reuse of recyclable commodities, such as bottles and cans, and encourage the depletion of natural resources.

In Sierra Club v. Morton, 405 U.S. 727, 734, this Court stated that, "We do not question that [environmental] harm may amount to an `injury in fact' sufficient to lay the basis for standing under . . . the APA [5 U. S. C. § 702]. Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process." The members of SCRAP have clearly alleged an "injury in fact" to the environment and to their own personal continued use of it.

"There is nothing unusual or novel in granting the consuming public standing to challenge administrative actions." Office of Communication of United Church of Christ v. FCC, 123 U. S. App. D. C. 328, 359 F.2d 994. This Court has indicated that where "statutes are concerned, the trend is toward enlargement of the class of people who may protest administrative action." Data Processing Service v. Camp, 397 U.S. 150, 154.

Littering is a commonplace phenomenon that affects every person, almost everywhere. From reports and writings we know that littering defaces mountain trails, alpine meadows, and even our highest peaks. Those in the valleys are often almost inundated with litter. Where a river is polluted and a person is dependent on it for drinking water, I suppose there would not be the slightest doubt that he would have standing in court to present his claim. I also suppose there is not the slightest doubt that where smog settles on a city, any person who must breathe that air or feel the sulphuric acid forming in his eyes, would have standing in court to present his claim. I think it is equally obvious that any resident of an area whose paths are strewn with litter, whose parks, or picnic grounds are defaced by it has standing to tender his complaint to the court. Sierra Club v. Morton, supra, would seem to cover this case, for littering abetted by the failure to recycle would clearly seem to implicate residents to whom "the aesthetic and recreational vaues of the area" are important. Id., at 735. For the reasons stated in my opinion in Sierra Club v. Morton, supra, I agree with the Court that appellees have standing, but like MR. JUSTICE BLACKMUN, I would not require appellees, in their individual capacity, to prove injury in fact. As MR. JUSTICE BLACKMUN states, it should be sufficient if appellees, "as responsible and sincere representatives of environmental interests, show that the environment would be injured in fact . . . ."

II

The Council on Environmental Quality (CEQ), created in the Executive Office of the President, 42 U. S. C. § 4342, estimated in 1969 that this Nation produced more than 4.3 billion tons of solid refuse, including about 30 million tons of paper, 30 million tons of industrial fly ash, 15 million tons of scrap metal, 4 million tons of plastics, 100 million automobile tires, 30 billion bottles, 60 billion cans, and millions of discarded automobiles and appliances. First Annual Report of CEQ, Aug. 1970, pp. 107-113. It reported that while most of the secondary material could be reused as a replacement for virgin material, only a small fraction was recycled. Ibid. One of the reasons for the absence of recycling was the high cost both of collection of the material and the transportation costs. Ibid.

As noted, one of the purposes of the Act was to "enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources." 42 U. S. C. § 4331 (b) (6). On October 9, 1970, Chairman Russell Train of CEQ wrote the Interstate Commerce Commission as follows:

In December 1971 substantially all the railroads filed with the Commission a request to impose a 2.5% surcharge on virtually all freight. The procedural details which followed are not presently material. Suffice it to say that shippers of recyclable materials submitted verified statements in support of their view that rate increases would intensify the disincentives to shipment and use of recyclable materials. Thus the Institute for Scrap Iron and Steel submitted a study showing:

The Commission instituted a proceeding concerning the guidelines which environmental impact statements required under the Act should follow. 339 I. C. C. 508. A spokesman for the eastern railroads filed an impact statement which said that "any possible adverse environmental impact in the form of reduced movements of commodities by rail will come only if we fail to provide adequate and efficient service" and that the need of the railroads to that end was for increased revenues. Appellees filed a protest and a request for a suspension of the proposed surcharge alleging that the present railroad rate structure discourages the movement of "recyclable" goods and that the surcharge would further discourage recycling.

The Commission, allowing the surcharge for a limited period, found that it would "have no significant adverse effect in the movement of traffic by railway or on the quality of the human environment" within the meaning of the 1969 Act. See 340 I. C. C. 358; 341 I. C. C. 287. Chairman Train of CEQ protested to the Commission on October 30, 1972:

The three-judge District Court held that the conclusion of the Commission that the rate increase would have "no significant adverse effect" on the environment within the meaning of EPA was "transparent" and "a ruse." 346 F. Supp., at 200-201. This leads to an analysis of § 102 of NEPA.4

That section is directed to "all agencies of the Federal Government," which of course includes the Interstate Commerce Commission. It directs the agency to interpret and administer "the policies, regulations, and public laws" which it administers "to the fullest extent possible" in accordance with the policies of EPA. It directs the agency5 to include in "major Federal actions significantly affecting the quality of the human environment" a detailed statement "by the responsible official on—(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, . . . and shall accompany the proposal through the existing agency review processes." 83 Stat. 853.

Rates affecting litter, like rates affecting other commodities, obviously are relevant to the ease and expedition with which it will be transported. To get the litter to appropriate recycling plants in the quantities needed to protect our fast depleting forests and our non-renewable resources6 and to relieve our landscape of the litter that plagues us may need special incentive rates.

The report, H. R. Conf. Rep. No. 91-765, makes clear that no agency of the Federal Government is exempt and that each should comply unless existing law applicable to the agency "expressly prohibits or makes full compliance with one of the directives impossible." The report states:

The District Court, acting responsibly in light of the broad and clear-cut policy of the Act concluded that it sets a " `high standard' " for federal agencies, that there is no " `escape hatch for footdragging agencies,' " that the Act does not make the preparation and use of these impact statements " `discretionary,' " that Congress did not intend that this Act be " `a paper tiger.' " 346 F. Supp., at 199.7

Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, does not preclude review here. In Arrow there were rates which the Commission had the power to suspend but had not suspended. The power of suspension was entrusted to the Commission only; and we held that the courts should not intrude when the Commission has not acted. Here the Commission has acted; it has found that "the increases here proposed are just and reasonable, that the revenues derived therefrom will result in earnings and rates of return . . . not in excess of that required to enable" the carriers "to render adequate and efficient transportation at the lowest cost consistent with the furnishing of such service." Ex parte 281, Order of Feb. 1, 1972 (unreported). The Commission said it was not prescribing rates, though it attached conditions on approval of the rates without suspension. It made clear it would suspend the new rates if the conditions were not added. As stated by the three-judge court: "A suspension decision which effectively blackmails the carriers into submitting agency-authored rates is functionally indistinguishable from an agency order setting those rates." 346 F. Supp., at 197.

Moreover, as the three-judge court held and as Judge Friendly observed in City of New York v. United States, 337 F.Supp. 150, 164. "NEPA is a new and unusual statute imposing substantive duties which overlie those imposed on an agency by the statute or statutes for which it has jurisdictional responsibility."

The Court today greatly weakens NEPA in a crucially important segment of the federal environmental field. Movement of litter to recycling plants8 is critically important, as Chairman Train makes abundantly clear. The alternative is to leave it underfoot or to cart it off as garbage to incinerators that pollute the air or to landfills that are getting more and more difficult to find.9 We know that recycled paper, recycled copper, recycled iron, and recycled glass are practical. The Federal Bureau of Mines in its pilot plant at Edmonston, Maryland, boasts that "urban ore," as it calls this debris, costs about $3 a ton and recycled is worth $11 a ton. We know that we deal here with nonrenewable resources. We are told that recycling paper saves thousands of acres of trees a year.10

Under the Act, the appraisal by the Council on Environmental Quality of which Russell Train is the chairman is a weighty one, for under § 204 of the Act it has the responsibility "to appraise the various programs and activities of the Federal Government" in light of the policy of the Act and "to develop and recommend . . . national policies to foster and promote the improvement of environmental quality." 83 Stat. 855; 42 U. S. C. §§ 4344 (3), (4). CEQ is, in other words, the expert ombudsman in the environmental area.

The apparent tendency among federal agencies, Congressman Dingell says,11 is to decide first what they want to do and then prepare an impact statement as an apologia for what they have done. That puts the cart before the horse. That is what the Commission did here. But that is to adopt "an excessively narrow construction" of its statutory power "to avoid compliance" with the new environmental standards—all as condemned in the Conference report, supra, at 10. That is to say, environmental considerations are, so far as possible, to shape all agency policies and decisions.

These cases are, indeed, Exhibit A of the current practice of federal agencies to undermine the policy announced by Congress in NEPA. Rail rates were long discriminatory in retarding the industrial development of the South. New York v. United States, 331 U.S. 284. The present rates are arguably discriminatory against the removal of the litter which is about to engulf us. The wisdom of Chairman Train, rather than the technical maneuvers of the Commission, should be our guide.

I would affirm the judgment of the District Court.

APPENDIX I TO OPINION OF DOUGLAS, J., DISSENTING IN PART

The Bureau of Mines had at Edmonston, Maryland, for several years an incinerator residue processing plant on the basis of which Lowell, Massachusetts, instituted its Resource Recovery Project.

The Edmonston project is now engaged in recycling of raw waste and the following is the Bureau's description of the nature and scope of that project.

FACT SHEET

Edmonston (Md.) Solid Waste Recycling Project Bureau of Mines

DEPARTMENT OF THE INTERIOR

An important part of the solid waste utilization research carried on by the Bureau of Mines is to develop methods and processes for recycling mineral materials present in urban refuse. Engineers from the Bureau's College Park (Md.) Metallurgy Research Center operate a pilot plant at Edmonston, Maryland, where they reclaim ferrous metals, nonferrous metals, glass, plastics, and paper from raw unburned refuse. The following facts are pertinent to the research underway at the Edmonston pilot plant.

XXX—100 pounds of typical municipal refuse contains:

XXX—Urban refuse generated in the U. S. in 1972 totaled 300 million tons, or the equivalent of more than 8 pounds daily for every man, woman, and child.

XXX—Only 220 million tons of municipal refuse was regularly collected by public agencies and private firms. The remainder (80 million tons) was abandoned, dumped at the point of origin, or hauled to uncontrolled disposal sites.

XXX—The volume of municipal refuse accumulating in the U. S. in a single year would cover an area half the size of the State of Connecticut (2,500 sq. mi.) with a layer of refuse 1 foot deep. This refuse contains some 12 million tons of iron and steel, 13 million tons of glass, and over a million tons of aluminum, zinc, lead, tin, and copper.

XXX—Collecting and disposing of refuse costs cities an average of $23 per ton ($18, for collection and $5, for disposal). New York City, at a cost of $40 per ton, spends almost a million dollars each day to collect and dispose of solid waste. Total U. S. bill runs about $6 billion annually.

XXX—Most municipal refuse is disposed of by dumping, landfill, or incineration. About 30 million tons of municipal refuse is burned annually in more than 300 municipal incinerators. These incinerators generate 7.5 million tons of residues, which are then buried. The process developed by the Bureau to reclaim the values from incinerator residues has attracted worldwide attention. A commercial size plant of this type will soon be under construction in Lowell, Massachusetts, with seventy-five percent of the $3.2 million required, being provided by the Environmental Protection Agency.

XXX—Successful reclamation of mineral values from incinerator residues at the Bureau's pilot plant prompted research to save also that part of municipal refuse that is now being lost during burning. This would reduce the need for building more municipal incinerators, saving their construction and operating costs, and would bring income from salvaged paper and plastics as well as metals and glass. It would also eliminate air pollution problems connected with incineration.

XXX—Equipment for mechanical separation of metals, glass, paper, and plastics from municipal refuse before incineration has been assembled at Edmonston. The process involves coarse shredding of the refuse, followed with air classification, magnetic separation, screening, optical sorting, electrostatic separation, and gravity concentration—all proven methods used in the minerals industries.

XXX—Other refuse recycling schemes have been proposed and some are already under development. The process developed by the Bureau is unique in the following major respects: (1) it is the only process that embodies a complete system, (2) it is the only process capable of capturing and concentrating putrescibles and glass, (3) it is the only process that produces a tin can product suitable for detinning, (4) it is the only process capable of accepting extremely massive pieces of metal, (5) it is the only process that can successfully separate plastics and paper, and (6) energy requirements for the Bureau's process are by far the least of all proposed processes.

XXX—A plant processing 1,000 tons of raw refuse per day could be expected to reclaim each day enough ferrous metal to make all the iron and steel parts for more than 55 4-door sedans.

XXX—About 36 billion bottles are discarded each year in the U. S. as solid waste. Each American discards a glass bottle on the average of about one every two days. The average returnable beer bottle used to make 31 round trips from the brewery, to the consumer, and back to the brewery. The average is now 19 trips. In some cities, it is only 4. People are discriminating less between returnable and non-returnable bottles.

XXX—Glass reclaimed from raw refuse can be used in making new glass, or for such salable products as building bricks, mineral wool for insulation, and road surfacing (when ground and mixed with asphalt).

XXX—Aluminum present in refuse in the form of cans alone amounts to 10 percent of the total primary production. This metal together with other aluminum recovered from refuse would find a ready market at existing secondary smelters for conversion to high grade casting alloys.

XXX—The other heavy nonferrous metals could be used readily in producing brass ingot or the mixture could be further refined and separated into the constituent metals.

XXX—The rate at which we generate refuse is growing so fast that within 20 years, even if we are able to recycle 70 percent of our solid wastes our needs for landfill space will remain the same. And landfill space is, even now, becoming harder and harder to find.

[Refuse-disposal and refuse-recovery charts appear on pp. 718 and 719 respectively.]

APPENDIX II TO OPINION OF DOUGLAS, J., DISSENTING IN PART

Section 102 of the National Environmental Policy Act, 42 U. S. C. § 4332 provides:

§ 4332. Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts.

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall—

Pub. L. 91-190, Title I, § 102, Jan. 1, 1970, 83 Stat. 853.

MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting in part.

I would reverse the judgment of the District Court and order the complaint dismissed because appellees lack standing to bring this suit. None of our cases, including inferences that may be drawn from dicta in Sierra Club v. Morton, 405 U.S. 727 (1972), where we denied standing to petitioner there, are sufficient to confer standing on plaintiffs in circumstances like these. The allegations here do not satisfy the threshold requirement of injury in fact for constituting a justiciable case or controversy. The injury alleged is that the failure of the Commission to suspend a 2.5% freight rate increase may discourage the transportation of recyclable materials, thus retarding the use of recycled materials, causing further consumption of our forests and natural resources (some of which might be taken from the Washington metropolitan area), and resulting in more refuse and undisposable materials to further pollute the environment.

The majority acknowledges that these allegations reflect an "attenuated line of causation," ante, at 688, but is willing to suspend its judgment in the dim hope that proof at trial will in some unexplained way flesh them out and establish the necessary nexus between these appellees and the across-the-board rate increase they complain of. To me, the alleged injuries are so remote, speculative, and insubstantial in fact that they fail to confer standing. They become no more concrete, real, or substantial when it is added that materials will cost more at the marketplace and that somehow the freight rate increase will increase air pollution. Allegations such as these are no more substantial and direct and no more qualify these appellees to litigate than allegations of a taxpayer that governmental expenditures will increase his taxes and have an impact on his pocketbook, Massachusetts v. Mellon, 262 U.S. 447, 486-489 (1923), or allegations that governmental decisions are offensive to reason or morals. The general "right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted" does not confer standing to litigate in federal courts. Fairchild v. Hughes, 258 U.S. 126, 129 (1922). New York did not have standing to complain when it asserted merely the possible adverse effects of diversion of water from Lake Michigan upon hypothetical power developments in "the indefinite future." New York v. Illinois, 274 U.S. 488, 490 (1927). Assumed potential invasions are insufficient bases for a justiciable case or controversy. Arizona v. California, 283 U.S. 423, 462 (1931). As I see the allegations in this case, they are in reality little different from the general-interest allegations found insufficient and too remote in Sierra Club. If they are sufficient here, we are well on our way to permitting citizens at large to litigate any decisions of the Government which fall in an area of interest to them and with which they disagree.

Assuming, however, that a majority of the Court adheres to the conclusion that a constitutional case or controversy exists in these circumstances and that plaintiffs may sue, I would agree that the District Court erred in entering an injunction which Congress quite clearly had long since divested it of the power to enter. Accordingly, I join Part III of the Court's opinion. I add only that failure to maintain this country's railroads even in their present anemic condition will guarantee that recyclable materials will stay where they are—far beyond the reach of recycling plants that as a consequence may not be built at all.

MR. JUSTICE MARSHALL, concurring in part and dissenting in part.

I fully agree with and join in Part II of the Court's opinion wherein it sustains the District Court's determination that the appellees have standing to challenge the 2.5% interim surcharge on the ground that the Interstate Commerce Commission's order of April 24 permitting the surcharge to take effect was not issued in compliance with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U. S. C. § 4321 et seq. The Court goes on, however, to hold in Part III of its opinion that the District Court lacked power to issue a preliminary injunction barring implementation of the surcharge due to the Commission's alleged failure to comply with NEPA in the suspension stage of the rate proceeding. The Court's decision in this respect is, to be sure, a very narrow one; the decision clearly concerns only the scope of remedies available to the District Court in the context of a case of this particular character,1 that is, an ICC rate suspension case. The Court specifically refrains from deciding whether or not the Commission's alleged failure to comply with NEPA in the suspension stage is a proper subject for judicial review and, if so, what would constitute adequate compliance with NEPA at that juncture in the administrative process. See ante, at 698-699, n. 22. Nonetheless, I am unable to join the third portion of the Court's opinion, for I am convinced that there is no lack of judicial power to issue a preliminary injunction against the interim surcharge in the context of these cases. I therefore must respectfully dissent from Part III of the Court's opinion.

At the outset, it is essential for purposes of analysis to put the issue upon which the Court disposes of the cases in proper perspective. Since the Court addresses only the issue of the District Court's power to grant preliminary relief, we must, of course, assume for the sake of argument that the issues which the Court does not now reach—namely, whether the procedural requirements of NEPA2 are applicable at the suspension stage and whether the issue of Commission compliance is a proper one for judicial review3—are to be decided in appellees' favor. In addition, we must accept for the present appellees' assertions that the interim surcharge, by raising the cost of shipping recyclable materials, will further accentuate the allegedly unjustifiable disparity between the cost of shipping those materials and the cost of shipping primary goods, thereby irrationally encouraging the use of primary goods which will lead to a further degradation of our environment. In other words, in considering the question of judicial power, we must accept the correctness of the District Court's determination that there was a "strong likelihood" that the Commission had erred in its conclusion that the interim surcharge " `will have no significant adverse effect on . . . the quality of the human environment within the meaning of the Environmental Policy Act of 1969,' " 346 F. Supp., at 200, 201, a conclusion that had effectively excused the Commission from compliance with the procedural requirements of NEPA in the context of the surcharge, see 42 U. S. C. § 4332 (2) (C).

Turning then to the issue of judicial power, it must first be recalled that we deal here with the grant of only a preliminary injunction; the District Court did not permanently enjoin enforcement of the interim surcharge upon determining that the Commission had, in all likelihood, failed to comply with NEPA in the suspension stage. Properly viewed, I think the injunction at issue in this case amounts to nothing more than a legitimate effort by the District Court, following the Commission's refusal to suspend the surcharge, to maintain the status quo pending final judicial determination of the legality of the Commission's action at the suspension stage in light of the requirements of NEPA. And, by now, the equitable power of the federal courts to grant interim injunctive relief pending determination of an appeal is well established. The nature of that power was explored at length by the Court in Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4 (1942), where it was held that a court of appeals had power, pending determination of an appeal, to stay the Federal Communications Commission's grant of a construction permit although the Federal Communications Act made no provision for such a stay. Speaking for the Court, Mr. Justice Frankfurter explained:

See also FTC v. Dean Foods Co., 384 U.S. 597, 604 (1966); Whitney National Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379 U.S. 411, 425 (1965).

This Court has consistently adhered to the view that it will find federal courts to have been deprived of their traditional power to stay orders under review only in the face of the clearest possible evidence of a congressional intent to do so. See Scripps-Howard Radio, Inc. v. FCC, supra, at 11, 15. No such clear intent is to be found in the Interstate Commerce Act, at least not with respect to a case such as this where the Commission has already acted on the relevant issue and the issue lies in an area outside the Commission's traditional expertise.4 In Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 664 (1963), this Court specifically acknowledged that "[i]t cannot be said that the legislative history of the grant of the suspension power to the Commission includes unambiguous evidence of a design to extinguish whatever judicial power may have existed prior to [the establishment of suspension powers in the Commission] to suspend proposed rates." The Arrow Court was asked to extend by injunction the statutory seven-month suspension period, see 49 U. S. C. § 15 (7), because the Commission had not reached a decision on the lawfulness of the proposed rates at the end of the suspension period and the rail carriers, following a period of voluntary suspension, were threatening to implement the rate change without awaiting final agency action. Despite the ambiguity of the legislative history, the Court, upon careful examination of the character of and reasons for the suspension scheme, concluded that Congress must have intended to deprive the federal courts of the power to suspend rates pending completion of agency action and thus that the traditional equitable powers of the federal courts had been overridden to that extent. But, as detailed consideration of the factors that motivated the decision in Arrow reveals, this litigation presents a significantly different problem.

The Arrow Court felt that an injunction extending the suspension period pending final agency action would involve a serious, unintended intrusion on the primary jurisdiction of the Commission. This problem of primary jurisdiction had two aspects in Arrow. First, where the issue is the reasonableness of proposed rates, an application for an injunction against implementation of those rates pending final agency action would necessarily require a federal court "to pass before final Commission action upon the question of reasonableness of a rate," 372 U. S., at 671, thereby providing, in effect, an advisory judicial opinion to the Commission on an issue which Congress intended that the Commission decide in the first instance. Certainly, the Commission's expertise in matters of rail carrier operations and economics is well recognized, and Arrow clearly indicates that the courts should not interfere with the exercise of that expertise. However, the grant of preliminary relief here involves no such interference with the Commission's initial exercise of its particular expertise.

So far as I am aware, the Commission has never been deemed especially expert in matters of environmental policy or impact.5 It is, of course, true that the Commission must decide in the first instance whether particular proposed action constitutes "major Federal action significantly affecting the quality of the human environment," thus necessitating agency compliance with the detailed requirements of § 102 (2) (C) of NEPA, 42 U. S. C. § 4332 (2) (C). But that decision had already been made in this case prior to the time when judicial intervention by the District Court was sought—in contrast to the situation in Arrow where the question of the reasonableness of the rates remained unresolved by the Commission. Even assuming that some element of agency expertise is involved in the decision at issue here, the District Court, in granting preliminary relief against the interim surcharge, passed only upon a question of which the Commission had finally disposed, namely, the environmental impact of not suspending the interim surcharge and of permitting it to take effect at once. Thus, for purposes of the particular issue raised here, the District Court was presented with final agency action6 and was not in danger of interfering with the Commission's expertise when it stayed the Commission's order pending final determination of the appeals.7

The other aspect of the problem of primary jurisdiction focused upon in Arrow was the timing of the implementation of new rates. The Court concluded that Congress had intended that the Commission should determine when new rates should take effect. See 372 U. S., at 668. Insofar as the economic impact of rate increases was concerned, Congress enacted a scheme which permitted the Commission to take into account the interests of both rail carriers and shippers. Thus, Congress recognized that economic necessity might persuade the Commission to permit otherwise questionable rates to go unsuspended while they were being investigated, and, at most, it allowed the Commission to suspend proposed rates for only seven months, see 49 U. S. C. § 15 (7). At the same time, Congress attempted to accommodate the economic interests of shippers, for it gave the Commission power, pending final agency action, to require the rail carriers to maintain detailed records of monies received due to the increase and to compel payment of refunds if a rate increase was ultimately found to be unreasonable.8 See ibid.

But where does the Interstate Commerce Act make provision for an accounting and "refund" to the people of our Nation for the irreversible ecological damage that results from a rate increase which discriminates unreasonably against recyclable materials and has been allowed to take effect without compliance with the procedural requirements of NEPA?9 The Court today says that "[t]o allow judicial suspension for noncompliance with NEPA, would disturb the careful balance of interests" struck by Congress in the suspension and refund provisions. Ante, at 697. Yet the simple fact is that in the carefully designed suspension and refund scheme no balance was struck with respect to the environmental interests that have been recognized by Congress in NEPA since the introduction of the suspension provisions into the Interstate Commerce Act. Under these circumstances, we can hardly infer an intent on the part of Congress to deprive the federal courts of their traditional responsibility, in passing upon a request for equitable relief, to work an accommodation in each particular case of the competing interests of the relevant parties10— that is, of a rail carrier's alleged need for increased income that will otherwise be forever lost each day that the new rate is not charged and of the extent of irreversible environmental damage that might result if the rates are not suspended. The District Court, in its effort to preserve the status quo pending final review of the Commission's April 24 order, gave full consideration to the effects on all parties of either granting or denying preliminary relief against the interim surcharge.11 In then temporarily enjoining the surcharge, I believe that the District Court acted within the scope of its legitimate powers.

To summarize, then, I obviously cannot agree with the Court's assertion that "each of the policies that we identified in Arrow as the basis for § 15 (7) would be substantially undermined if the courts were found to have suspension powers simply because noncompliance with NEPA was alleged." Ante, at 696. In Arrow itself, the Court was at pains to point out that its decision did not "reflect in any way upon decisions which have recognized a limited judicial power to preserve the court's jurisdiction or maintain the status quo by injunction pending review of an agency's action through the prescribed statutory channels." 372 U. S., at 671 n. 22. True, the Court went on to say there that "[s]uch power . . . has never been recognized in derogation of such a clear congressional purpose to oust judicial power as that manifested in the Interstate Commerce Act." Ibid. But the import of that remark must be judged with a full understanding of the factors underlying the Arrow Court's finding of "such a clear congressional purpose." As has been seen, close analysis of those factors identified certainly does not compel extension of the Arrow holding to the request for preliminary injunctive relief in this litigation.12 The Court would do well to remember that "[w]here Congress wished to deprive the courts of [their] historic power [to enjoin orders pending review], it knew how to use apt words . . . ." Scripps-Howard Radio, Inc. v. FCC, 316 U. S., at 17. Cf. Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). Nothing in the language of the Interstate Commerce Act or in the particular structure of that Act or even in our decision in Arrow compels the conclusion that Congress has done so here. I must therefore dissent from the Court's ultimate disposition of these cases.