lenges to a Section 15(7) order would be to interfere at an intermediate stage in the rate-making process before the carriers had exhausted their remedies before the Commission.

However, as we indicated in our first opinion in this case,

15

we do

not feel restrained by these cases from reviewing plaintiffs' challenges to the Commission's orders. First, the precedential force of the cases is

now in substantial doubt. Two of the most recent, Alabama Power Co. v. United States, D. D.C., 316 F.Supp. 337 (1969), and Atlantic City Electric Co. v. United States, S.D. N.Y., 306 F.Supp. 338 (1969), were affirmed without opinion by only an equally divided Court, 400 U.S. 73 (1970). Only last term the Court indicated that the jurisdictional question pre16 sented by these cases, while a serious one, was not settled." In Alaba-E Pover and Atlantic City the shippers' challenges were directed to the Commission's decision that the general increases were warranted by the railroads' revenue needs rather than to the reasonableness of any particular rates. We adhere to the view expressed in the dissent in Alabama Por that challenges such as these can best be considered in direct review of the Commission's Section 15(7) decision rather than "in countless rate

making proceedings involving individual commodities."17

The instant case

does not present challenges to the reasonableness of particular rates оп particular railroads between particular points; it presents challenges to the Commission's determination that the railroads' general revenue needs justify the costs to shippers and to the environment of a general rate in18

crease on recyclables. The Commission has made what it believes to be

· 15346 F.Supp. at 198.

16 In Atchison, Topeka & Santa Fe R. Co. v. Wichita Board of Trade, 412 U.S. 800 (1973), the Court reviewed a Commission crder that particular rates were just and reasonable. The plurality opinion stated that if the grain charges "were just like a general rate increase, serious questions would arise about the jurisdiction of the District Court to review the Commission's order." Id. at 814 n.10.

17

Alabama Power Co. v. United States

supra note 14, 316 F.Supp. at 339.

18 We We thus find misplaced the railroads' reliance on Electronic Industries Asen v. United States, supra note 14, which was affirmed unanimously by the Supreme Court without opinion. In that case the shippers attacked as unreasonable and arbitrary only that portion of a Commission $ 15(7) order permitting increased rates on two particular items. 310 F.Supp. at

1287.

its final decision on this general balancing; it surely does not intend to reconsider this decision after a Section 13 challenge to a particular

rate.

19

We do not, however, rest on an application of the analysis advanced in the dissent in Alabama Power. For as stated in our first SCRAP opinion, the cases cited by the railroads are all distinguishable from a case challenging the Commission's compliance with NEPA in approving a general rate increase. We first note that however adequate a Section 13 proceeding might be to a shipper who questions the railroads' need for a general rate increase, it is at least questionable that environmental groups such as SCRAP have standing to initiate Section 13 proceedings during which they could attempt to contest the Commission's compliance with NEPA. Sections 13(1), 15(1) and 16(1) permit any person or association to complain of carrier action in contravention of the Interstate Commerce Act and empower the Commission to investigate such complaints and remedy any violation of the Act, including granting reparations for unreasonable or prejudicial charges on particular items shipped. It is suggested that an environmental group, while it could not obtain reparations, should be able to complain that a particular charge on a particular item is unreasonable because of its environmental effects. Thus if SCRAP could initiate an investigation on this theory, it could argue further that before rejecting the complaint the Commission would have to prepare and consider an environmental impact statement. But we know of no Commission order or judicial opinion accepting this theory and it is thus too speculative and too unrealistic to support a denial of jurisdiction. It is true that two scrap

dealers associations have intervened in this action to help champion the environmental cause and that these associations or their members may bring Section 13 challenges to particular rates which they could argue the Comission could not reject without compliance with NEPA. But we cannot rest a holding on the fortuity that here shippers as well as environmental groups challenge the Commission's compliance with NEPA. Morcover, to refus

19346 F.Supp. at 198.

to consider the challenges of environmental groups to agency compliance with NEPA because economically interested parties might make similar challenges in later proceedings would significantly dilute the Supreme Court's holding, on review of our first opinion in this case, that SCRAP has full standing, equal to and not derived from the standing of economically interested parties, to seek review of Commission action which allegedly harms SCRAP's members in their use of the environment.20

Even if environmental groups could initiate proceedings pursuant to Section 13(1), an appeal from a Commission order on the reasonableness of a particular rate would not be an appropriate time for a court to review the Commission's challenged compliance with NEPA. Plaintiffs have persuasively argued that NEPA compels the Commission, before approving a general rate increase, to consider whether the rate increases on recyclables collectively have a significant environmental impact and, if so, whether this impact is justified by the railroads' need for increased revenues. These are far different questions from whether a particular rate, in light of environmental considerations, is unreasonable or discriminatory. Even if a court in reviewing a Commission order on the reasonableness of a particu lar rate were able on the record before it to review the Commission's compliance with NEPA, the court's decision would affect only the particular rate challenged. Thus burdensome relitigation of each particular rate would be required to challenge all the rates which collectively impact the Finally, we note that delay is of greater import here than in previous cases whore review of general rate orders was refused. While the Act provides for reparations to shippers who successfully challenge particular rates after they have become effective, the environmental degradation which continues while challenges to particular rates are being considered may not be reparable at all.

environment.

Our reliance on NEPA in finding jurisdiction is not inconsistent with the Supreme Court's admonition in its SCRAP opinion that "NEPA was not in,,21 tended to repeal by implication any other statute.' The Court did not

20,

United States v. SCRAP, supra note 3, 412 U.S. at 683-690.

suggest that NEPA was to be ignored by the courts in considering threshold

We,

The Court in SCRAP held only that NEPA did not revive judicial power that had been previously explicitly eliminated by Congress. 412 U.S. at 692-695. This time we do not wield NEPA in the face of any statutory limitations on our jurisdiction; there is nothing in the Interstate Commerce Act which precludes our jurisdiction to review Section 15(7) orders, whatever the limits it imposes on our injunctive power over carriers. like the previous courts which, in a non-NEPA context, declined to review general rate orders, are applying broad jurisdictional provisions, 28 U.S. C. §§ 1336, 2321, giving us power to review "any order" of the ICC. These provisions demand supplementation by other statutes and by judicially developed doctrines which limit court review of agency action. As stated above, previous courts found two of these doctrines to preclude court review of general rate orders. We find that the existence of NEPA requires us to reconsider the application of these doctrines and in NEPA cases to accept more of the broad jurisdictional authority granted us.

III

We thus turn to an examination of the Commission's fulfillment of the

23

NEPA mandate. We do not feel it necessary to rehearse at the outset the full structure and the particularized requirements of NEPA. Previous courts have done so adequately." We do, however, think it important to emphasize before commencing our analysis that the courts have required strict compliance with the procedural commands of NEPA. Section 102(2)(C) of the Act, 42 U.S.C. § 4332(2)(C), prescribes in some detail not only what considerations must be addressed in an environmental impact statement, but

22. The Court's implicit approval of the assertion of jurisdiction in Come mirtce for Nuclear Responsibility, Inc. v. Sechers, 149 U.S.App.D.C. 350, 463 F.2d 733 (1971), suggests much the reverse. 412 U.S. at 695-696. The Seaborg court reviewed whether a decision to conduct a nuclear test was made in compliance with NEPA though, as we noted in our first SCRAP opinion, 346 F.Supp. at 197, absent NEPAo court would have authority to review such a decision.

23

See, e.., Environmental Defense Fund, Inc. v. Corps of lovineers, U.S. Army, 3 Cir., 470 F.2d 259 (1972); Calvert Cliffs' Coordinating Cos uttee v. USAFC, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971).

also how the statement is to be developed and utilized.

The Act states that "all agencies of the Federal Government" are to comply with these prescriptions "to the fullest extent possible." 42 U.S.C. § 4332. Far from providing "an escape hatch for footdragging agencies," this language "sets a high standard for the agencies, a standard which must be rigorously enforced by the reviewing courts." Calvert Cliffs' Coordinating Com mittee v. USAEC, 146 U.S.App.D.C. 33, 38, 449 F.2d 1109, 1114 (1971). Cecause of the extent of plaintiffs' attack on the impact statement, we further note that the courts' substantive review of agency action pursuant to NEPA is much more limited. Once a court is satisfied that the agency has "fully and in good faith", met all of NEPA's procedural requirements, it should not reverse an agency decision on the merits unless it can determine that the decision was "arbitrary or clearly gave insufficient weight to environmental values." Id., 146 U.S.App.D.C. at 39, 449 F.2d at 1115. Any substantive review would be predicated on Section 101 of the Act, 42 U.S.C. § 4331, which propounds certain substantive environmental goals which it is the "continuing responsibility of the Federal Government to use all practicable means' to achieve. One of these goals is to "enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources." However, because we view the Commission's efforts to comply with NEPA's procedural commands to be sorely deficient, we do not reach the question whether the Commission clearly gave insufficient weight to this environmental value.

24

The purpose of all the requirements imposed by Section 102 (2) (C) is to ensure that federal agencies integrate consideration of the potential cnvironmental impacts of their contemplated actions with the policy considerations traditionally attending such actions. It is for this reason that Section 102(2)(C) specifically commands that an environmental impact statement and the comments of other concerned agencies on this statement "shall accompany the proposal through the existing agency review processes." The

24

Accord, Conservation Council of North Carolina v. Froehlke, 4 Cir., 473 1.2 04, 205 (1973); Tavirernental Detense burd, Inc. v. rochlke, S Cir., 473 F.2d 346, 353 (1972).