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).
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.
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,
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.
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.
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.
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.
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."
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
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
II
The appellants challenge the appellees' standing to sue, arguing that the allegations in the pleadings as to standing
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.
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
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
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,
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
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
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
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,
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
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
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
Accordingly, because the District Court granted a preliminary injunction suspending railroad rates when it lacked the power to do so,
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
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
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."
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.
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
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
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:
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 agency
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 resources
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
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.
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 plants
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.
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
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
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
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
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,
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 NEPA
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,
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.
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
So far as I am aware, the Commission has never been deemed especially expert in matters of environmental policy or impact.
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.
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
FootNotes
Finally, the Commission conditioned its action on the provision that the proposed surcharge would not apply to shipments originating prior to February 5, 1972, and moving under transit arrangements.
"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—
.....
"(C) include in every recommendation or report on proposals for legislation and other 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 . . . and shall accompany the proposal through the existing agency review processes."
"EDF has a nationwide membership of over 32,000 persons composed of scientists, educators, lawyers and other citizens dedicated to the protection of our environment and the wise use of our natural resources. Each of EDF's members has a personal interest in the maintenance of a safe, healthful, productive environment as free from waste substances as is possible. EDF's members have contributed financially to EDF in part so that they may obtain adequate representation of their legally protected environmental interests, which representation they could not otherwise individually afford. Each of EDF's members has under § 101 (c) of NEPA, `a responsibility to contribute to the preservation and enhancement of the environment,' which responsibility they fulfill in part by becoming a member of and contributing to EDF.
"The increased freight rates and charges in Ex Parte 281 and the continuance of the underlying rate structure, which discriminate against movement of secondary (recyclable) materials, will cause EDF members individualized injury and adversely affect them in one or more of their activities and pastimes. Specifically, each EDF member: (i) has been or will be caused to pay more for products in the market place, made more expensive by both the non-use of recycled materials in their manufacture, and the need to use comparatively more energy in processing primary raw materials as opposed to secondary (recyclable) materials; (ii) uses the nation's forests, rivers, streams, mountains, and other natural resources for camping, hiking, fishing, sightseeing, and other recreational and aesthetic purposes. These uses have been and will continue to be adversely affected to the extent that the freight rate structure, as modified thus far in Ex Parte 281, encourages destruction of virgin timber, the unnecessary extraction of nonrenewable resources, and the discharge and accumulation of otherwise recyclable materials."
The court also concluded that since the Commission had taken no final action with respect to the 4.1% selective increase, the lawfulness of that tariff was not ripe for review. The court did, however, retain jurisdiction over the case to review the final order of the Commission.
On October 4, 1972, the Commission served its report and order in Ex parte 281 approving, with some exceptions, the general increases filed by the railroads. Increased Freight Rates and Charges, 1972, 341 I. C. C. 290. In that report, although the Commission gave extensive consideration to environmental aspects of the rate increases, it declined to include a formal environmental impact statement because it concluded that its actions "will neither actually nor potentially significantly affect the quality of the human environment. . . ." Id., at 314.
The selective increases were to become effective on October 23, 1972, but the Commission delayed until November 12 the effective date for rate increases on recyclable commodities in order to allow the submission of comments by interested parties. Upon the submission of critical comments, the Commission, in an unreported order served on November 8, reopened the rate proceeding in Ex parte 281 for further evaluation of the rates on recyclable commodities, and ordered the proposed selective tariff increases on those commodities suspended for the full seven-month period authorized by statute—until June 10, 1973. Accordingly, with respect to recyclable commodities on which the proposed selective increase had been suspended, the Commission extended the expiration date of the 2.5% surcharge until June 10, 1973, the expiration date for the suspension of the selective increases. But the Commission acknowledged that the power to collect the surcharge on these recyclable commodities was barred by the preliminary injunction issued by the District Court in the present case and which is the subject of the present appeals. In short, the temporary 2.5% surcharge would have been in effect throughout this period on recyclable commodities but for the District Court's resilient preliminary injunction. Whether the Commission deliberately continued the surcharge beyond the time it would have been supplanted by the selective increases in order to give the surcharge and the District Court's injunction continuing effect and thus avoid mooting this litigation, and whether the Commission acted beyond its powers under 49 U. S. C. § 15 (7) by suspending the selective increases for a second seven-month period and by treating the District Court's injunction as having continuing effect, are questions not raised here. No party now maintains that these cases are moot. Cf. Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515.
Both sets of appellees filed motions in the District Court: SCRAP sought a preliminary injunction against the Commission's October 4 order, and EDF and the other intervening plaintiffs sought leave to file an amended and supplemental complaint and requested other relief. On January 9, 1973, the court deferred consideration of the EDF motions and denied SCRAP's request for a preliminary injunction. The court found that as a result of the Commission's November 8 order, neither the selective rate increases nor the temporary surcharge could be assessed on recyclable commodities. Consequently, the court found, no injunctive relief was justified as to those materials. While the permanent rate increase approved by the Commission in Ex parte 281 was then being collected on shipments of all other commodities, and although the Commission had concededly failed to file an impact statement, the court concluded that "the danger of an adverse impact appears to be sufficiently speculative . . . that it would be unsound to grant preliminary relief." The court continued: "The record indicates that many railroads are in dire financial straits—some on the verge of bankruptcy—and badly need the revenues now being obtained under the Commission's rate increase. The increase amounts to some $340 million per year, and were this revenue flow halted it could not easily be recouped should it later appear that no NEPA statement was necessary." The merits of neither the Commission's October 4 order nor the District Court's January 9 decision are before us, and we therefore express no opinion on them.
On May 7, 1973, the Commission served its final environmental impact statement relating to the selective rate increases on recyclable commodities. It concluded that the proposed increases would have no significant adverse effect on the environment. Contending that the impact statement was inadequate, EDF and SCRAP sought to enjoin collection of the selective rate increases. On June 7, 1973. the District Court temporarily enjoined the railroads from collecting the selective increases on recyclable commodities. On June 8, 1973. THE CHIEF JUSTICE, as Circuit Justice for the District of Columbia Circuit, stayed the District Court's injunction pending further order of this Court.
"A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."
Similarly, the District Court cannot be faulted for failing to take evidence on the issue of standing. This case came before the court on motions to dismiss and for a preliminary injunction. If the railroads thought that it was necessary to take evidence, or if they believed summary judgment was appropriate, they could have moved for such relief.
This project was launched under the Resource Recovery Act of 1970, 84 Stat. 1227, 42 U. S. C. § 3251 et seq., under which the Secretary of HEW was authorized to provide technical and financial assistance in planning and developing resource recovery and solid waste disposal programs.
For a detailed account of a Resource Recovery Mill see Ross, How to Succeed in Recycling, Environmental Quality Magazine, June 1973, p. 51.
The problem is even more critical in urban areas where there is a high concentration of solid waste being generated and transportation to outlying recycling plants is a major cost factor. In 1968 a national survey found that an average of 8.2 pounds of waste per capita was collected daily in urban areas; this figure has now risen to 9 pounds. If present trends continue, this figure could be as high as 12 pounds in another 10 years. In our urban areas as a whole, the solid waste generated is fast approaching a ton a year for each man, woman, and child. Kramer, Energy Conservation and Waste Recycling, Science and Public Affairs 13, 17 (Apr. 1973).
"Taken together, the provisions of section 102 directs [sic] any Federal agency which takes action that it must take into account environmental management and environmental quality considerations." 115 Cong. Rec. 40416 (1969).
"We expected Section 102 of the act which requires environmental impact statements and analysis of alternatives for all major federal actions significantly affecting the quality of the human environment to force the agencies to move. . . . We did not anticipate that it would be private parties through the courts that would force the compliance. This is what has made it work." Cahn, Can Federal Law Help Citizens Save Nature's Fragile Beauty?, Christian Science Monitor 12 (Feb. 28, 1973).
Some federal agencies are taking affirmative action to promote the purposes of § 105. Thus the Securities and Exchange Commission recently adopted amendments to its registration and reporting forms to require more meaningful disclosure of certain items pertaining to the effect on the issuer's business of compliance with federal, state, and local laws and regulations relating to the protection of the environment. The amendments will require as a part of the description of the issuer's business, appropriate disclosures with respect to the material effects which compliance with environmental laws and regulations may have upon the capital expenditures, earnings, and competitive position of the issuer and its subsidiaries. Other amendments describe the extent to which litigation disclosures should contain specific descriptions of environmental proceedings. Securities and Exchange Comm'n Release (Securities Act Rel. No. 5386, Apr. 20, 1973). See Scientists' Institute v. AEC, 156 U. S. App. D. C. 395, 481 F.2d 1079, holding that an impact statement must be filed for the Atomic Energy Commission's liquid metal fast breeder reactor program.
"We also should be able to get generic environmental impact statements —updated every six months or so—for energy policy, transportation policy, and other major policy decisions." Cahn, supra, n. 5.
"The success of the environmental impact statements is not so much that they were used as we intended they should, but that citizens have been able to use the process as a [way] to get into courts. . . . Some agencies are complying poorly. They decide what they are going to do and then write an environmental impact statement to support the decision. That is not what Congress had in mind. I am fearful that we are breeding a race of impact statement writers who put all the right words down but don't really get environmental concerns involved in the decision-making process. The impact statement itself is not important. The important thing is that proper judgments are made reflecting environmental considerations in the decision-making process. The impact statement should be a discipline for this and also a process by which the public can be informed and brought into the decision-making process." Cahn, supra, n. 5.
For a recent account of impact statements on transportation problems see Robert Cahn (former member of CEQ), Environmentalists Wary of Transport Trend, Christian Science Monitor 12 (Feb. 28, 1973).
Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658 (1963), to be sure, did not involve an economic dispute between shippers and rail carriers, but was, instead, an action brought by water carriers which contended that certain challenged decreases in the rates of competing rail carriers were designed to destroy them rather than to reach legitimate economic objectives. Obviously, the refund and reparation provisions of the Interstate Commerce Act were of no more value to the water carriers in Arrow than they are to the nonshipper appellees in this case. But, as the Court pointed out in Arrow, "[c]onflicts over rates between competing carriers were familiar to the Commission long before [the enactment of the suspension provisions] . . . . Indeed, in another provision [namely, 49 U. S. C. § 4 (2)] of the very same statute [that established the suspension powers] Congress . . . dealt explicitly with the reduction of rates by railroads competing with water carriers . . . . In addition § 8 of the Act, 49 U. S. C. § 8, creates a private right of action for damages—based upon conduct violative of the Act—which might be available . . . ." 372 U. S., at 669. Thus, Congress had taken into account, and had provided for, disputes between competing carriers, as well as between shippers and carriers, in enacting the suspension provisions. The same can hardly be said for conflicts between the environmental policies of NEPA and the Commission's suspension power.
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