U.S. Supreme Court United States v. SCRAP, 412
U.S. 669 (1973) United States v. Students
Challenging Regulatory Agency Procedures
(SCRAP) No. 72-535 Argued February 28,
1973 Decided June 18, 1973 412
U.S. 669 ast|>* 412
U.S. 669 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA Syllabus The Interstate Commerce Act permits railroads to file proposed
freight rate increases, with at least 30 days' notice to the
Interstate Commerce Commission (ICC) and the public before putting
the new rates into effect. The ICC may, pursuant to § 15(7) of the
Act, suspend the operation of the proposed rates for as long as
seven months, in order to investigate the lawfulness of the rates.
At the end of the seven-month period, the carrier may put the
suspended rates into effect unless the ICC has completed its
investigation and found the rates unlawful. Proceeding under the
statutory scheme, substantially all the Nation's railroads sought a
2.5% surcharge on nearly all freight rates, as an emergency measure
to obtain increased revenues pending adoption of selective rate
increases on a permanent basis. Shippers, competing carriers, and
other interested persons requested the ICC 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, appellees here, protested that
failure to suspend the surcharge would cause their members
"economic, recreational and aesthetic harm," and specifically, that
the new rate structure would discourage the use of "recyclable"
materials and promote the use of raw materials that compete with
scrap, thus adversely affecting the environment. On February 1,
1972, the ICC issued an order announcing its decision not to
suspend the surcharge for the seven-month period, and on April 24,
1972, ordered the proposed selective increases filed by the
carriers to be suspended for the full seven-month period ending
November 30, 1972, and permitted the collection of the surcharge
until that date. SCRAP filed the Page 412 U. S. 670 present suit seeking, inter alia, an injunction to
restrain enforcement of the February 1 and April 24 orders allowing
the carriers to collect the surcharge. SCRAP, an unincorporated
association formed by five law students to enhance the quality of
the environment, claimed that its members

															"suffered economic, recreational and aesthetic harm directly as
a result of the adverse environmental impact of the railroad
freight structure,"

															that each of its members was caused to pay more for finished
products, that each of its members uses the forests, rivers,
mountains, and other natural resources of the Washington, D.C.,
area, and at his legal residence for camping, hiking, fishing, and
other purposes, and that these uses have been adversely affected by
increased freight rates. The main thrust of SCRAP's complaint was
that the ICC's orders were unlawful for failure 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). The three-judge District Court found that appellees
had standing to sue. The court held that its power to grant an
injunction was not barred by Arrow Transportation Co. v.
Southern R. Co., 372 U. S. 658 ,
because 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."

															The court concluded that the ICC's decision not to suspend the
surcharge for the seven-month period was a "major federal action
significantly affecting the quality of the human environment," and
granted an injunction prohibiting the ICC "from permitting" and the
railroads "from collecting" the surcharge "insofar as that
surcharge relates to goods being transported for purposes of
recycling." Held: 1. Appellees' pleadings sufficiently alleged that they were
"adversely affected" or "aggrieved" within the meaning of § 10 of
the Administrative Procedure Act to withstand a motion to dismiss
on the ground of lack of standing to sue. Sierra Club v.
Morton, 405 U. S. 727 ,
distinguished. Pp. 412 U. S.
683 -690.

															(a) Standing is not confined to those who show economic harm, as
"[a]esthetic and environmental wellbeing, like economic wellbeing,
are important ingredients of the quality of life in our society." Sierra Club, supra, at 405 U. S. 734 .
P. 412 U. S.
686 .

															(b) Here, the appellees claimed that the specific and allegedly
illegal action of the ICC would directly harm them in their use of
the natural resources of the Washington area. Pp. 412 U. S.
686 -687. Page 412 U. S. 671 (c) Standing is not to be denied because many people suffer the
same injury. Pp. 412 U. S.
687 -688.

															(d) It cannot be said on these pleadings that appellees could
not prove their allegations, which, if proved, would place them
squarely among those persons injured in fact, by the ICC's action
and entitled to review under Sierra Club, supra. Pp. 412 U. S.
688 -690.

															2. The District Court lacked jurisdiction to issue the
injunction. Pp. 412 U. S.
690 -698.

															(a) Arrow Transportation, supra, held that Congress, in
§ 15(7), had vested exclusive jurisdiction in the ICC to suspend
rates pending its final decision on their lawfulness, and had
deliberately extinguished judicial power to grant such relief; and
the factual distinctions between the instant case and Arrow
Transportation are inconsequential. Pp. 412 U. S.
690 -692.

															(b) The alleged noncompliance by the ICC with NEPA did not give
the District Court authority to grant the injunction, as NEPA was
not intended to repeal by implication any other statute, and the
policies identified in Arrow Transportation as the basis
for § 15(7) would be substantially undermined if the courts were
found to have suspension powers simply because of noncompliance
with NEPA. Pp. 412 U. S.
692 -698. 346 F.
Supp. 189 , reversed and remanded.

															STEWART, J., delivered the opinion of the Court, in which
BRENNAN and BLACKMUN, JJ., joined; in Parts I and II of which
DOUGLAS and MARSHALL, JJ., joined; and in Parts I and III of which
BURGER, C.J., and WHITE and REHNQUIST, JJ., joined. BLACKMUN, J.,
filed a concurring opinion, in which BRENNAN, J., joined, post, p. 412 U. S. 699 .
DOUGLAS, J., filed an opinion dissenting in part, post, p. 412 U. S. 699 .
WHITE, J., filed an opinion dissenting in part, in which BURGER,
C.J., and REHNQUIST, J., joined, post, p. 412 U. S. 722 MARSHALL, J., filed an opinion concurring in part and dissenting in
part, post, p. 412 U. S. 724 .
POWELL, J., took no part in the consideration or decision of the
cases. Page 412 U. S. 672 MR. JUSTICE STEWART delivered the opinion of the Court.

															Under the Interstate Commerce Act, the initiative for rate
increases remains with the railroad. 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). [ Footnote 1 ]
During that 30-day period, the Commission Page 412 U. S. 673 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). [ Footnote 2 ] At the end of the seven-month Page 412 U. S. 674 period, the carrier may put the suspended rate into effect
unless the Commission has earlier completed its investigation and
found the rate unlawful. [ Footnote
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:

															"[T]he financial condition of the railroad industry as a whole,
and the financial status of many individual carriers by rail, must
be found to be at a dangerously low level. The precipitous decline
in working capital and serious loss of liquidity has reduced many
carriers to a truly marginal operation. This has been most clearly
demonstrated by the recent bankruptcy application of the Penn
Central. We think it undeniable that a number of Page 412 U. S. 675 other roads are approaching a similar financial crisis." Ex parte Nos. 266/267, Increased Freight Rates, 1970 and
1971, 339 I.C.C. 125, 173.

															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.
[ Footnote 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, 172,
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, Page 412 U. S. 676 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. [ Footnote 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. [ Footnote 6 ] The
Commission ordered the investigation into Page 412 U. S. 677 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.
[ Footnote 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 Page 412 U. S. 678 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. Page 412 U. S. 679 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. [ Footnote 8 ]
SCRAP contended that, because Page 412 U. S. 680 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. [ Footnote 9 ] After a
single district Page 412 U. S. 681 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." [ Footnote
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 Page 412 U. S. 682 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 , 372 U. S. 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 preexisting
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 Page 412 U. S. 683 United States, the Commission, and the railroads. 409 U.S. 1073.
[ Footnote 11 ] II The appellants challenge the appellees' standing to sue, arguing
that the allegations in the pleadings as to standing Page 412 U. S. 684 were vague, unsubstantiated, and insufficient under our recent
decision in Sierra Club v. Morton, supra. The appellees
respond that, unlike the petitioner in Sierra Page 412 U. S. 685 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,
[ Footnote 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, "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 405 U. S. 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 405 U. S. 730 .
We held those allegations insufficient. Page 412 U. S. 686 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 405 U. S. 733 .
[ Footnote 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 wellbeing, like economic wellbeing,
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 405 U. S. 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 Page 412 U. S. 687 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 405 U. S. 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 Page 412 U. S. 688 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, Page 412 U. S. 689 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. [ Footnote
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. [ Footnote 15 ] We
cannot say on these pleadings that the appellees Page 412 U. S. 690 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 Page 412 U. S. 691 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 Page 412 U. S. 692 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 court 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. [ Footnote 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 Page 412 U. S. 693 relief in this case has been revived. [ Footnote 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).
[ Footnote 18 ] But Page 412 U. S. 694 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, [ Footnote 19 ] must comply with
present law and ask for any necessary new legislation, but that the
courts may simply ignore what Page 412 U. S. 695 we described in Arrow as "a clear congressional purpose
to oust judicial power. . . ." 372 U.S. at 372 U. S. 671 n. 22. [ Footnote 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 Page 412 U. S. 696 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 372 U. S. 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. [ Footnote
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 Page 412 U. S. 697 "[reach] diverse results, . . . [engendering] confusion and
[producing] competitive inequities." 372 U.S. at 372 U. S. 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 Page 412 U. S. 698 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 372 U. S. 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:

															"The basis of the decision in Arrow -- that to permit
judicial interference with the Commission's suspension procedures
would invite the very disruption in the orderly review of the
lawfulness of proposed tariffs that Congress meant to preclude --
applies with equal force to the issue now before us."

															Accordingly, because the District Court granted a preliminary
injunction suspending railroad rates when it lacked the power to do
so, [ Footnote 22 ] its
judgment must be reversed, Page 412 U. S. 699 and the cases remanded to that court for further proceedings
consistent with this opinion. It s so ordered. MR. JUSTICE POWELL took no part in the consideration or decision
of these cases.

															* Together with No. 72-562, Aberdeen & Rockfish Railroad
Co. et al. v. Students Challenging Regulatory Agency Procedures
(SCRAP) et al., also on appeal from the same court.

															[ Footnote 1 ]

															Title 49 U.S.C. § 6(3) provides:

															"No change shall be made in the rates, fares, and charges or
joint rates, fares, and charges which have been filed and published
by any common carrier in compliance with the requirements of this
section, except after thirty days' notice to the Commission and to
the public published as aforesaid, which shall plainly state the
changes proposed to be made in the schedule then in force and the
time when the changed rates, fares, or charges will go into effect;
and the proposed changes shall be shown by printing new schedules,
or shall be plainly indicated upon the schedules in force at the
time and kept open to public inspection: Provided, That
the Commission may, in its discretion and for good cause shown,
allow changes upon less than the notice herein specified, or modify
the requirements of this section in respect to publishing, posting,
and filing of tariffs, either in particular instances or by a
general order applicable to special or peculiar circumstances or
conditions: Provided further, That the Commission is
authorized to make suitable rules and regulations for the
simplification of schedules of rates, fares, charges, and
classifications and to permit in such rules and regulations the
filing of an amendment of or change in any rate, fare, charge, or
classification without filing complete schedules covering rates,
fares, charges, or classifications not changed if, in its judgment,
not inconsistent with the public interest."

															[ Footnote 2 ]

															Title 49 U.S.C. § 15(7) provides in pertinent part:

															"Whenever there shall be filed with the Commission any schedule
stating a new . . . rate, fare, or charge, . . . the Commission
shall have . . . authority, either upon complaint or upon its own
initiative without complaint, at once, and if it so orders without
answer or other formal pleading by the interested carrier or
carriers, but upon reasonable notice, to enter upon a hearing
concerning the lawfulness of such rate, fare, [or] charge . . . ;
and pending such hearing and the decision thereon the Commission,
upon filing with such schedule and delivering to the carrier or
carriers affected thereby a statement in writing of its reasons for
such suspension, may from time to time suspend the operation of
such schedule and defer the use of such rate, fare, [or] charge . .
. , but not for a longer period than seven months beyond the time
when it would otherwise go into effect; and after full hearing,
whether completed before or after the rate, fare, [or] charge . . .
goes into effect, the Commission may make such order with reference
thereto as would be proper in a proceeding initiated after it had
become effective. If the proceeding has not been concluded and an
order made within the period of suspension, the proposed change of
rate, fare, [or] charge . . . shall go into effect at the end of
such period; but in case of a proposed increased rate or charge for
or in respect to the transportation of property, the Commission may
by order require the interested carrier or carriers to keep
accurate account in detail of all amounts received by reason of
such increase, specifying by whom and in whose behalf such amounts
are paid, and upon completion of the hearing and decision may by
further order require the interested carrier or carriers to refund,
with interest, to the persons in whose behalf such amounts were
paid, such portion of such increased rates or charges as by its
decision shall be found not justified. At any hearing involving a
change in a rate, fare, [or] charge . . . after September 18, 1940,
the burden of proof shall be upon the carrier to show that the
proposed changed rate, fare, [or] charge . . . is just and
reasonable, and the Commission shall give to the hearing and
decision of such questions preference over all other questions
pending before it and decide the same as speedily as possible."

															[ Footnote 3 ]

															Other statutory provisions giving suspension powers to the
Commission include 49 U.S.C. §§ 316(g), 318(c) (Motor Carrier Act);
49 U.S.C. §§ 907(g), (i) (Water Carrier Act); 49 U.S.C. § 1006(e)
(Freight Forwarders Act).

															[ Footnote 4 ]

															Figures reported to the Commission indicated that the net
working capital of the Class I railroads for the 12 months ending
September 30, 1971, was only $75.4 million, approximately $33.7
million less than the year-end 1970 figure. Long-term debt maturing
within one year from September 30, 1971, was $43.6 million higher
than on December 31, 1970. Equipment obligations at the end of 1970
were $4,448 million, or almost twice the total in 1960.

															[ Footnote 5 ]

															The order of the ICC is unreported.

															[ Footnote 6 ]

															The Commission also imposed as a condition on its refusal to
suspend the exclusion of increased rates "on freight in trailer
bodies, semi-trailers, vehicles or containers on flat cars, on
export and import traffic." Since such increases had been proposed
only by the western and southern carriers, and not by the eastern
carriers, such increases would, in the Commission's view, have
disrupted existing port relationships.

															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.

															[ Footnote 7 ]

															The March 6 and April 24 orders of the ICC are unreported.

															[ Footnote 8 ]

															Section 102, 42 U.S.C. § 4332, provides in pertinent part:

															"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."

															[ Footnote 9 ]

															The Environmental Defense Fund, National Parks and Conservation
Association, and Izaak Walton League of America intervened as
plaintiffs. The allegations as to standing made by each of these
groups were similar to those made by SCRAP. EDF, for example,
alleged as follows:

															"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."

															[ Footnote 10 ]

															The court dismissed as moot that part of the complaint relating
to the Commission's February 1 order because that order had expired
by its own terms on June 5. Since the environmental groups have not
appealed from the judgment below, we have before us for review only
the District Court's action with regard to the Commission's April
24 order that allowed the surcharge to continue until November 30,
1972.

															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.

															[ Footnote 11 ]

															While subsequent events do not bear directly on the validity of
the District Court's action in granting the preliminary injunction,
they do highlight the problems that hover in the background of this
litigation.

															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 , 219 U. S.
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.

															[ Footnote 12 ]

															Like the petitioner in Sierra Club, the appellees here
base their standing to sue upon the APA, 5 U.S.C. § 702, which
provides:

															"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."

															[ Footnote 13 ]

															As in Sierra Club, it is unnecessary to reach any
question concerning the scope of the "zone of interests" test or
its application to this case. It is undisputed that the
"environmental interest" that the appellees seek to protect is
within the interests to be protected by NEPA, and it is unnecessary
to consider the various allegations of economic harm on which the
appellees also relied in their pleadings and which the Government
contends are outside the intended purposes of NEPA.

															[ Footnote 14 ]

															The Government urges us to limit standing to those who have been
"significantly" affected by agency action. But even if we could
begin to define what such a test would mean, we think it
fundamentally misconceived. "Injury in fact," reflects the
statutory requirement that a person be "adversely affected" or
"aggrieved," and it serves to distinguish a person with a direct
stake in the outcome of a litigation -- even though small -- from a
person with a mere interest in the problem. We have allowed
important interests to be vindicated by plaintiffs with no more at
stake in the outcome of an action than a fraction of a vote, see Baker v. Carr, 369 U. S. 186 ; a
$5 fine and costs, see McGowan v. Maryland, 366 U.
S. 420 ; and a $1.50 poll tax, Harper v. Virginia Bd.
of Elections, 383 U. S. 663 .
While these cases were not dealing specifically with § 10 of the
APA, we see no reason to adopt a more restrictive interpretation of
"adversely affected" or "aggrieved." As Professor Davis has put
it:

															"The basic idea that comes out in numerous cases is that an
identifiable trifle is enough for standing to fight out a question
of principle; the trifle is the basis for standing and the
principle supplies the motivation."

															Davis, Standing: Taxpayers and Others, 35 U.Chi.L.Rev. 601, 613. See also K. Davis, Administrative Law Treatise §§ 22.09-5,
22.09-6 (Supp. 1970).

															[ Footnote 15 ]

															The railroads object to the fact that the allegations were not
more precise -- that no specific "forest" was named, that there was
no assertion of the existence of any lumbering camp or other
extractive facility in the area. They claim that they had no way to
answer such allegations, which were wholly barren of specifics. But
if that were really a problem, the railroads could have moved for a
more definite statement, see Fed.Rule Civ.Proc. 12(e), and
certainly normal civil discovery devices were available to the
railroads.

															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.

															[ Footnote 16 ]

															EDF suggests that the April 24 order of the Commission was, in
fact, a final order finding the surcharge "just and reasonable,"
not simply a refusal to suspend the surcharge. But the Commission's
reference to the "just and reasonable" nature of the surcharge was
a preliminary assessment commonly made in suspension orders. See, e.g., the suspension orders quoted in Naph-Sol
Refining Co. v. United States, 269 F.
Supp. 530 , 531; Oscar Mayer & Co. v. United
States, 268 F.
Supp. 977 , 978-979. It did not represent a final determination
by the Commission that any particular rate was just and reasonable.
Indeed, the Commission made it clear in its February 1 order that
the surcharge was not considered a prescribed rate within the
meaning of Arizona Grocery Co. v. Atchison, T. & S.F. R.
Co., 284 U. S. 370 , and
was subject to complaint and investigation under the Act.

															[ Footnote 17 ]

															An alternative ground for avoiding the Arrow decision,
which was suggested but not relied on by the District Court, was
that the surcharge here was an "agency-made" rate, not a
"carrier-made" rate. Moss v. CAB, 430 F.2d 891, which was
cited by the court is, however, plainly inapposite. There, the CAB
suspended the rates proposed by the carriers, but suggested in
their place "a complete and innovative scheme for setting all
passenger rates for the continental United States." Id. at
899. It was clear that, when the carriers filed the rates suggested
by the Board, they would not be suspended.

															"Even a cursory reading of the order makes it clear that the
Board told the carriers what rates to file; it set forth a
step-by-step formula requiring major changes in ratemaking
practices and in rates which it expected the carriers to
adopt." Id. at 899-900. Here, by contrast, the level and
structure of the rates were proposed entirely by the carriers.
While the Commission suggested an expiration date for the
surcharge, this was simply to make the surcharge expire when the
general selective increases went into effect. This expiration date
and the other standard conditions attached to the Commission's
refusal to suspend the surcharge did not, in any meaningful sense,
transform the carrier-made rate into a Commission-made rate.

															[ Footnote 18 ] See n 8, supra. [ Footnote 19 ] See Greene County Planning Board v. FPC, 455 F.2d 412,
420; Calvert Cliffs' Coordinating Comm. v. Atomic Energy
Comm'n, 146 U.S.App.D.C. 33, 43, 449 F.2d 1109, 1119; City
of New York v. United States, 337 F.
Supp. 150 , 160; Cohen v. Price Comm'n, 337 F.
Supp. 1236 , 1241.

															[ Footnote 20 ]

															The argument that NEPA implicitly restored to the courts the
injunctive power that 15(7) had divested is similar to a contention
rejected in Arrow itself. There, the petitioners claimed
that congressional adoption of the National Transportation Policy,
54 Stat. 899, had implicitly altered § 15(7). They claimed that the
proposed new railroad rates would drive the barge lines out of
existence, contrary to the congressional declaration of concern for
the protection of water carriers threatened by rail competition.
The Court concluded that

															"nothing in the National Transportation Policy, enacted many
years after . . . § 15(7), indicates that Congress intended to
revive a judicial power which . . . was extinguished when the
suspension power was vested in the Commission." Arrow Transportation Co. v. Southern R. Co., 372 U. S. 658 , 372 U. S. 673 .
In addition, the Court noted that, as is also true with NEPA, the
mandate was directed not to the courts, but to the Commission.
There is nothing about NEPA that makes it any more amenable for
finding an implicit amendment of § 15(7) than the National
Transportation Policy was.

															[ Footnote 21 ]

															Indeed, Calvert Cliffs' indicated that the requirements
of § 102 of NEPA, see n 8, supra, did not have to be complied with if
such compliance was precluded by another statutory provision. 146
U.S.App.D.C. at 39, 449 F.2d at 1115. And Committee for Nuclear
Responsibility, in another context, endorsed a principle,
equally applicable here, that "repeal by implication is
disfavored." 149 U.S.App.D.C. 380, 382, 463 F.2d 783, 785.

															[ Footnote 22 ]

															In view of our conclusion that there was no power to grant the
preliminary injunction, it is unnecessary for us to reach the other
questions posed by the parties. For example, the Government and the
railroads urge that, because of the pressures of time, an
environmental impact statement is not required at the suspension
stage of a rate proceeding, and, in any event, a decision by the
Commission whether or not to suspend rates is not subject to
judicial review. See Port of New York Authority v. United
States, 451 F.2d 783; Oscar Mayer & Co. v. United
States, 268 F.
Supp. 977 ; M. C. Kiser Co. v. Central of Georgia R.
Co., 236 F. 573; Freeport Sulphur Co. v. United
States, 199 F.
Supp. 913 ; Luckenbach S.S. Co. v. United
States, 179 F.
Supp. 605 ; Carlsen v. United States, 107 F.
Supp. 398 . The appellees in turn contend that some compliance
with NEPA is possible at the suspension stage, and that such
compliance is required if the statute is to be enforced "to the
fullest extent possible." See 42 U.S.C. § 4332. And they
urge that there is, or should be, an exception to the general
principle of nonreviewability of suspension decisions for those
cases where the Commission has acted beyond its statutory
authority, or in violation of a clear statutory command or a
procedural requirement, a standard that the appellees view as broad
enough to encompass alleged noncompliance with NEPA. See
Naph-Sol Refining Co. v. United States, 269 F.
Supp. 530 , 532; Oscar Mayer & Co. v. United States,
supra, at 982 (Doyle, J., concurring); Long Island R. Co.
v. United States, 193 F.
Supp. 795 . We express no view on any of these issues.

															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 412 U. S. 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 , 405 U. S. 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 Page 412 U. S. 700 litter for recycling. Paper, glass, and metals are the main
items in today's garbage. [ Footnote
2/1 ] As indicated by the Bureau of Mines in 412
U.S. 669 app1|>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 nonrenewable 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 Page 412 U. S. 701 of the environment against several erosive conditions. [ Footnote 2/2 ] 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

															"which will encourage productive and enjoyable harmony between
man and his environment; to promote efforts which will prevent or
eliminate damage to the environment and biosphere and stimulate the
health and welfare of man; to enrich the understanding of the
ecological systems and natural resources important to the Nation;
and to establish a Council on Environmental Quality."

															42 U.S.C.§ 4321.

															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. " Page 412 U. S. 702 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 , 405 U. S. 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
wellbeing, like economic wellbeing, 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 , 397 U. S.
154 . Page 412 U. S. 703 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 values of the area" are
important. Id. at 405 U. S. 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 Page 412 U. S. 704 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:

															"The Council on Environmental Quality is deeply concerned with
all facets of environmental quality. Solid waste disposal is one
important aspect of the total pollution problem, and recycling is a
new and desirable alternative to solid waste disposal which the
Council strongly supports. The degree to which this technique will
be used depends almost entirely on economics. Transportation costs,
to the degree they increase secondary or scrap materials costs
compared to the raw materials with which they compete, act as a
disincentive to recycling. The Council believes that several rail
haul costs biases currently exist, and would like to discuss these
cases with you. . . . In general, across-the-board percentage
increases only widen existing price biases against secondary
materials. Also, these increases raise the costs of doing business,
which can hinder the salvage and reclamation industry."

															"In light of the President's concern with environmental quality,
the growing problems of solid waste Page 412 U. S. 705 and the importance of recycling to alleviating them, I would
like to express the Council's hope that the Interstate Commerce
Commission's actions on the key issue of scrap material
transportation rates will be consistent with the Nation's
environmental quality goals."

															App. 68.

															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:

															"(1) Present scrap markets are retarded because of transport
rates which encourage the usage of iron ore. (2) Future scrap
markets are being affected because new investment that would
logically be directed to scrap-intensive steelmaking is diverted
because of the existing freight rate structure to ore-intensive
steelmaking. (3) Iron ore (a limited domestic natural resource) is
being exploited when it can and should be conserved. (4) Some scrap
iron that should be recycled is unable to move, thus the
environment is despoiled by unnecessary accumulations of solid
metallic waste."

															T. Barnes, Impact of Railroad Freight Rates on the Recycling of
Ferrous Scrap (Jan. 14, 1972).

															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 Page 412 U. S. 706 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:

															"It is understandable that difficulties will be encountered in
quantifying the environmental consequences of an incremental
freight rate increase on recyclable materials. In our view,
however, these consequences must be assessed in the light of the
rate disparity between secondary and primary materials that gives
rise to the problem in the first place. This disparity is a matter
of an entirely different magnitude, calling for a thorough
environmental assessment as a precondition to determining whether
subsequent incremental increases require additional environmental
impact statements. . . . Clearly, at some point, increases which
might be individually 'insignificant' become cumulatively
'significant.' In addition, the claim that freight rates on
recycled products must be increased to respond to 'emergency'
revenue needs pending completion of the required overall
environmental evaluation loses much of its force as months turn
into years and the basic investigation remains uncompleted.
Finally, even the 'emergency' argument itself, however legitimate,
in Page 412 U. S. 707 no way forecloses the consideration of alternatives which would
both meet revenue needs and at the same time avoid further
potential environmental damage while the basic rate structure issue
is being resolved. Alternatives of this sort were, in fact,
suggested in the partial dissenting opinions of Commissioners Brown
and Deason (who would have denied approval of increases for
recyclable commodities), with no indication in the Commission's
majority report that such measures would not have been sufficient
to meet the revenue needs relied on to justify the rate increases.
. . . In summary, the Council feels that the basic environmental
issues related to the existing freight rate structure and changes
thereto, must be evaluated in a logical, analytical and timely
fashion in compliance with the requirements of the National
Environmental Policy Act. The Commission's actions to date appear
to be inconsistent with the objectives of NEPA, and the analyses
undertaken to date by the Commission appear to offer an inadequate
basis from which to draw conclusions concerning the impact of
freight rates on recycling and environmental quality. Our staff is
available to discuss the NEPA procedural issues as well as to
assist in structuring the analytical work required to assess
adequately the environmental impact of freight rates."

															3 App. 87-89. [ Footnote 2/3 ] Page 412 U. S. 708 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 202 01. This leads to an analysis of § 102 of NEPA.
[ Footnote 2/4 ]

															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 agency [ Footnote
2/5 ] 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 Page 412 U. S. 709 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 nonrenewable resources [ Footnote 2/6 ] 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 Page 412 U. S. 710 with one of the directives impossible." The report states:

															"The purpose of the new language is to make it clear that each
agency of the Federal Government shall comply with the directives
set out in such subparagraphs (A) through (H) unless the existing
law applicable to such agency's operations expressly prohibits or
makes full compliance with one of the directives impossible. If
such is found to be the case, then compliance with the particular
directive is not immediately required. However, as to other
activities of that agency, compliance is required. Thus, it is the
intent of the conferees that the provision 'to the fullest extent
possible' shall not be used by any Federal agency as a means of
avoiding compliance with the directives set out in section 102.
Rather, the language in section 102 is intended to assure that all
agencies of the Federal Government shall comply with the directives
set out in said section 'to the fullest extent possible' under
their statutory authorizations, and that no agency shall utilize an
excessively narrow construction of its existing statutory
authorizations to avoid compliance." Id. at 9-10.

															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 foot-dragging 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. [ Footnote
2/7 ] Page 412 U. S.
711 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 Page 412 U. S. 712 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 plants [ Footnote 2/8 ] 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. [ Footnote 2/9 ] We know that recycled paper, recycled
copper, recycled Page 412 U. S. 713 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. [ Footnote
2/10 ]

															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. Page 412 U. S. 714 The apparent tendency among federal agencies, Congressman
Dingell says, [ Footnote 2/11 ] 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.

															| 412
U.S. 669 app1| 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. Page 412 U. S. 715 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.

															100 pounds of typical municipal refuse contains: 36.6 pounds of
paper and cardboard; 20.2 pounds of garbage; 8.4 pounds of metal;
8.5 pounds of glass; 17.4 pounds of leaves, grass, hedge clippings
and tree prunings; 2.6 pounds of scrap wood; 1.1 pound of plastics;
and 5.2 pounds of miscellaneous material including leather, rubber,
textiles, bricks, stones, and dirt.

															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.

															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.

															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.

															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.

															Most municipal refuse is disposed of by dumping, landfill, or
incineration. About 30 million tons of municipal refuse is Page 412 U. S. 716 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.

															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.

															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.

															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.

															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.

															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 Page 412 U. S. 717 19 trips. In some cities, it is only 4. People are
discriminating less between returnable and non-returnable
bottles.

															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).

															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.

															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.

															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.] [Charts omitted.] Page 412 U. S. 720 | 412
U.S. 669 app2| 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 -- "

															"(A) utilize a systematic, interdisciplinary approach which will
insure the integrated use of the natural and social sciences and
the environmental design arts in planning and in decisionmaking
which may have an impact on man's environment;"

															"(B) identify and develop methods and procedures, in
consultation with the Council on Environmental Quality established
by subchapter II of this chapter, which will insure that presently
unquantified environmental amenities and values may be given
appropriate consideration in decisionmaking along with economic and
technical considerations;"

															"(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, " Page 412 U. S. 721 "(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; ,"

															"(D) study, develop, and describe appropriate alternatives to
recommended courses of action in any proposal which involves
unresolved conflicts concerning alternative uses of available
resources;"

															"(E) recognize the worldwide and long-range character of
environmental problems and, where consistent with the foreign
policy of the United States, lend appropriate support to
initiatives, resolutions, and programs designed to maximize
international Page 412 U. S. 722 cooperation in anticipating and preventing a decline in the
quality of mankind's world environment;"

															"(F) make available to States, counties, municipalities,
institutions, and individuals, advice and information useful in
restoring, maintaining, and enhancing the quality of the
environment;"

															"(G) initiate and utilize ecological information in the planning
and development of resource-oriented projects; and"

															"(H) assist the Council on Environmental Quality established by
subchapter II of this chapter."

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

															[ Footnote 2/1 ]

															In a Bureau of Mines' survey, it was established that metals and
glass account for approximately 75 percent of the weight of the
residues in municipal incinerator waste. Economics of Recycling
Metals and Minerals from Urban Refuse, Bureau of Mines Technical
Progress Report No. 33, p. 2 (Apr.1971). From these materials, if
recycled, familiar products such as bottles, newspapers, iron
ingots, paper pulp, fuel oil, and methane gas can be manufactured.
In addition, new products are being developed, such as glassphalt
for street paving, insulation, glass wool, and glass bricks, in
various colors that meet specifications for "severe weather" facing
brick. Id. at 7.

															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.

															[ Footnote 2/2 ]

															The necessity of reasonable transportation rates is even more
apparent when it is realized that the volume of residue which is
processed at a major recycling plant is between 250 and 1,000 tons
per day. (Economics of Recycling Metals and Minerals from Urban
Refuse, supra, 412
U.S. 669 fn2/1|>n. 1, at 1.) Massive bulk transportation is
therefore essential to these plant operations.

															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).

															[ Footnote 2/3 ]

															In his report before the Senate, Senator Jackson, one of the
three legislators most responsible for NEPA, stated:

															"To insure that the policies and goals defined in this act are
infused into the ongoing programs and actions of the Federal
Government, the act also establishes some important
'action-forcing' procedures. Section 102 authorizes and directs all
Federal agencies, to the fullest extent possible, to administer
their existing laws, regulations, and policies in conformance with
the policies set forth in this act. It also directs all agencies to
assure consideration of the environmental impact of their actions
in decisionmaking. It requires agencies which propose actions to
consult with appropriate Federal and State agencies having
jurisdiction or expertise in environmental matters and to include
any comments made by those agencies which outline the environmental
considerations involved with such proposals."

															"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).

															[ Footnote 2/4 ]

															The totality of § 102 is so important to this litigation that I
have set it forth in 412
U.S. 669 app2|>Appendix II to this dissent.

															[ Footnote 2/5 ]

															Senator Jackson was reported as saying:

															"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).

															[ Footnote 2/6 ]

															Waldo E. Smith, of the American Geophysical Union, recently
stated:

															"The total supply of most metals is sharply limited; even now we
must dig deeper, go farther, and use lower grade ores. No optimism
is justified here. The supply can be extended substantially by
intelligent recycling, which should be an important by-product of
our cleaning up to maintain a clean environment."

															Resources and Long-Forecasts, Science and Public Affairs 21, 22
(May 1973).

															[ Footnote 2/7 ]

															When Congress desires exceptions to be made to the impact
statement requirement under the NEPA, express exemption is
provided. For example, Pub.Law 92-307, 86 Stat.191, provides that
the Atomic Energy Commission can grant a temporary operating
license for a nuclear power reactor without the completion of an
environmental impact statement if the application for the operating
license was filed before September 9, 1971, and the Commission
holds a hearing which leads to the findings, among others, that the
operation of the facility during the period of the temporary
operating license in accordance with its terms and conditions will
provide adequate protection of the environment during that period
and that the operation of the facility is essential toward insuring
the power generating capacity of a utility system. The Commission
is empowered to impose such terms and conditions as it deems
necessary, and its decision is subject to judicial review.

															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.

															[ Footnote 2/8 ]

															Senator Jackson recently was reported as saying about these
impact statements:

															"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.

															[ Footnote 2/9 ]

															Most of the Nation's waste is relocated into dumps, with only
approximately 10% to 15% finding its way into sanitary landfills.
Kramer, supra, 412
U.S. 669 fn2/2|>n. 2, at 17.

															[ Footnote 2/10 ]

															Congressman Dingell, another main sponsor of NEPA, recently was
reported as saying:

															"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 decisionmaking process. The
impact statement itself is not important. The important thing is
that proper judgments are made reflecting environmental
considerations in the decisionmaking 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 decisionmaking
process."

															Cahn, supra, 412
U.S. 669 fn2/5|>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)

															[ Footnote 2/11 ] See 412
U.S. 669 fn2/11|>n. 10, supra. 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 412 U. S. 688 ,
but is willing to suspend its judgment in the dim hope that proof
at trial will in some unexplained way flesh Page 412 U. S. 723 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 , 262 U. S.
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 , 258 U. S. 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 , 274 U. S. 490 (1927). Assumed potential invasions are insufficient bases for a
justiciable case or controversy. Arizona v. California, 283 U. S. 423 , 283 U. S. 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 Page 412 U. S. 724 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 412 U. S. 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, [ Footnote 3/1 ] that is,
an ICC rate suspension case. Page 412 U. S. 725 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 412 U. S.
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 NEPA [ Footnote 3/2 ]
are applicable at the suspension stage and whether the issue of
Commission compliance is a proper one for judicial review [ Footnote 3/3 ] -- are to be decided in
appellees' favor. In addition, we must accept for the present
appellees' assertions that the interim surcharge, by raising Page 412 U. S. 726 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, Page 412 U. S. 727 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:

															"No court can make time stand still. The circumstances
surrounding a controversy may change irrevocably during the
pendency of an appeal despite anything a court can do. But, within
these limits, it is reasonable that an appellate court should be
able to prevent irreparable injury to the parties or to the public
resulting from the premature enforcement of a determination which
may later be found to have been wrong. It has always been held,
therefore, that, as a part of its traditional equipment for the
administration of justice, a federal court can stay the enforcement
of a judgment pending the outcome of an appeal." Id. at 316 U. S. 9 -10. See also FTC v. Dean Foods Co., 384 U.
S. 597 , 384 U. S. 604 (1966); Whitney National Bank in Jefferson Parish v. Bank of
New Orleans & Trust Co., 379 U. S. 411 , 379 U. S. 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 316 U. S. 11 , 316 U. S. 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. [ Footnote 3/4 ] In Arrow
Transportation Co. v. Southern R. Page 412 U. S. 728 Co., 372 U. S. 658 , 372 U. S. 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 Page 412 U. S. 729 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 372 U. S. 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.
[ Footnote 3/5 ] 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 Page 412 U. S. 730 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 action, [ Footnote 3/6 ] 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. [ Footnote 3/7 ]

															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 372 U. S. 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. [ Footnote 3/8 ] See ibid. Page 412 U. S. 731 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? [ Footnote 3/9 ] 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 412 U. S. 697 .
Yet the simple fact is that, in the Page 412 U. S. 732 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 parties [ Footnote 3/10 ] -- 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. [ Footnote
3/11 ] 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 412 U. S. 696 .
In Arrow itself, the Court was at pains to point out that
its decision Page 412 U. S. 733 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 372 U. S. 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.
[ Footnote 3/12 ] The Court would
do well to remember Page 412 U. S. 734 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 316 U. S. 17 . Cf. Hecht Co. v. Bowles, 321 U. S. 321 , 321 U. S. 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.

															[ Footnote 3/1 ]

															Given that the Court holds only that the District Court lacked
power to grant preliminary injunctive relief, it presumably remains
open to appellees to challenge the Commission's alleged failure to
comply with NEPA in the suspension stage of the proceedings
concerning the interim surcharge in an action for declaratory
relief. Nor does anything in the Court's opinion today deny to the
district courts power to enjoin the Commission to comply with NEPA
in the context of a particular rate proceeding so long as no
injunction is issued barring implementation of the rates
themselves, cf. Atchison, T. & S. F. R. Co. v. Wichita
Board of Trade, post, p. 412 U. S. 800 .

															[ Footnote 3/2 ] See in particular § 102(2)(C) of the Act, 42 U.S.C. §
4332(2)(C).

															[ Footnote 3/3 ] Cf., e.g., Upper Pecos Assn. v. Stans, 452 F.2d 1233
(CA10 1971), vacated and remanded for consideration of mootness
sub nom. Upper Pecos Assn. v. Peterson, 409 U.S. 1021 (1972); Calvert Cliffs' Coordinating Comm. v. Atomic Energy
Comm'n, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971); City of
New York v. United States, 337 F.
Supp. 150 , 158-160 (EDNY 1972).

															[ Footnote 3/4 ]

															Thus, I cannot accept the Court's assertion that the question
here is "whether, in a specific context NEPA sub silentio revived judicial power that had been explicitly eliminated by
Congress." Ante at 412 U. S. 696 .
That is a question which I do not believe need ever be reached
here, for -- as shall be seen -- Congress has not, to begin with,
deprived the federal courts of their traditional equitable powers
in the context of these cases.

															[ Footnote 3/5 ]

															Administrative expertise in such matters is surely lodged with
the Environmental Protection Agency and the Council on
Environmental Quality.

															[ Footnote 3/6 ] Cf. L. Jaffe, Judicial Control of Administrative Action
688 (1965).

															[ Footnote 3/7 ] Contrast Atchison, T. & S. F. R. Co. v. Wichita Board of
Trade, post, p. 412 U. S. 800 .

															[ Footnote 3/8 ]

															Moreover, even if the Commission fails to require recordkeeping
and the payment of refunds sua sponte, Congress also
provided a mechanism by which shippers may initiate an action
before the Commission to seek reparations from a carrier on the
ground that particular rates are unreasonable. See 49
U.S.C. § 13(1). 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 372 U. S. 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.

															[ Footnote 3/9 ]

															Indeed, given the substantial element of public interest at
stake in a case such as this, it is appropriate to recall Mr.
Justice Stone's oft-quoted admonition:

															"Courts of equity may, and frequently do, go much farther both
to give and withhold relief in furtherance of the public interest
than they are accustomed to go when only private interests are
involved." Virginian R. Co. v. Systems Federation No. 40, 300 U. S. 515 , 300 U. S. 552 (1937).

															[ Footnote 3/10 ] Cf. Hecht Co. v. Bowles, 321 U.
S. 321 , 321 U. S.
329 -330 (1944).

															[ Footnote 3/11 ]

															Thus, the District Court, fully recognizing the financial plight
of the rail carriers, carefully limited its preliminary injunction
to the application of the interim surcharge to recyclable
materials, "allowing [the rail carriers] to collect the surcharge
on all nonrecyclable good." 346 F.
Supp. at 202 .

															[ Footnote 3/12 ]

															The Arrow Court also pointed out that experience with
judicial injunctions against rates prior to the establishment of
the Commission's suspension powers in § 15(7) had

															"resulted in disparity of treatment as between different
shippers, carriers, and sections of the country, causing, in turn,
'discrimination and hardship to the general public.'"

															372 U.S. at 372 U. S. 664 .
These results were due both to the conflicting views of lower
federal courts as to their power to enjoin rates pending agency
determination of their lawfulness and conflicting judgments of
different courts as to the reasonableness of the same rates. See id. at 372 U. S.
663 -664. But the danger of conflicting judgments
concerning the same rates and uneven-handed treatment of shippers
and carriers, merely because of the fortuity of the particular
judicial district in which they are located, is not present where,
as here, the allegation is that the Commission has failed to follow
the requirements of a statute -- NEPA -- relevant to the exercise
of its regulatory jurisdiction, and the Commission has, as a
consequence, been joined in the suit as a defendant. So long as the
Commission has been made a party, it is possible to ensure
uniformity of treatment by enjoining the Commission to exercise its
suspension powers where a failure to comply with NEPA is believed
to exist. This is what the District Court did here when it enjoined
the Commission "from permitting . . . the 2.5 per cent surcharge"
to be collected by the rail carriers "pending further order of this
court." See Jurisdictional Statement 30a. It may be that
the danger of conflicting results where the Commission has not been
made a party would warrant a court staying its hand, but that is
not a problem here.

Summary:
Here is a summary of the United States v. SCRAP case:

In 1973, the United States Supreme Court heard United States v. Students Challenging Regulatory Agency Procedures (SCRAP). The case concerned a group of law students (SCRAP) who challenged the Interstate Commerce Commission's (ICC) decision to allow railroads to increase freight rates, arguing that it would cause economic and environmental harm.

SCRAP argued that the ICC's decision would lead to higher prices for finished products and negatively impact the environment by discouraging the use of recyclable materials. The District Court agreed and issued a preliminary injunction, limiting the surcharge to non-recyclable goods.

The Supreme Court upheld the District Court's decision, recognizing the public interest in environmental protection and the potential for conflicting judgments regarding freight rates. The Court emphasized the importance of ensuring uniformity of treatment by enjoining the ICC to exercise its suspension powers when necessary to comply with the National Environmental Policy Act (NEPA).

This case highlights the intersection of environmental policy and regulatory agency procedures, with the Court prioritizing the public interest and potential environmental harm in its decision-making.