United States v. SCRAP
Encyclopedia
United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669
(1973), was a landmark 8-0 decision of the United States Supreme Court which was argued February 28, 1973 and decided June 18, 1973. The Court held that the members of SCRAP – five law students from The George Washington University – had standing to sue under Article III of the Constitution to challenge a nationwide railroad freight rate increase approved by the Interstate Commerce Commission (ICC). SCRAP was the first full-court consideration of the American
National Environmental Policy Act (NEPA). The Court also reversed the lower court decision that an injunction
should be issued at the suspension stage of the ICC rate proceeding. The standing decision has retained its place as the high mark in the Court’s standing jurisprudence.
, Ralph Nader
, with the help of law and graduate students, sought to expose disquieting and sometimes corrupting relationships
between industry and government regulatory agencies, whose duty it was to act in the public interest. Notorious among those relationships was the Interstate Commerce Commission (ICC) and United States railroads
. Members of Congress
, such as Senator
s Lee Metcalf
(Montana) and Warren Magnuson (Washington), also had exposed the relationship and its harmful effects on American
farmers, consumers
and shippers. This public and congressional scrutiny occurred during the tumult of the Vietnam War, especially in Washington, D.C., and the fledgling environmental movement led, in Congress, by Senators Edmund Muskie
(Maine) and Henry Jackson
(Washington). Among the laws enacted was the National Environmental Policy Act, effective January 1, 1970.
Within The George Washington Law School, Professor John Banzhaf – to the consternation of traditionalists in legal education – encouraged students to identify problematic corporate/regulatory agency relationships and to engage and challenge them in practical, real terms on their own turf. The five law students that formed Students Challenging Regulatory Agency Procedures (SCRAP) began their journey in December 1971 with the filing of a Petition in the ICC that sought a one billion dollar refund for the failure of the Commission to comply with NEPA in approving a 20 percent rate increase (after NEPA's effective date) that SCRAP (and others) claimed discriminated against the movement of recyclable materials by favoring the movement of raw materials. In April and May 1972, SCRAP sued the United States and the ICC in the United States District Court for the District of Columbia for violating NEPA in approving the 20 percent increase (already being collected) and a new 2.5 percent rate increase on all freight transported by all of the Nation’s Railroads. SCRAP then sought a preliminary injunction
and a temporary injunction prior to the effective date of the 2.5 percent rate increase.
, Section 2 of the Constitution, the court’s jurisdiction is limited to "cases...or controversies." Historically the court has determined that various requirements must be met to comply with the Article III jurisdictional threshold, without which federal courts cannot consider the case and the wrongdoing alleged by the plaintiff goes forward. Those requirements include, among others, "standing to sue
". The Constitution does not identify what requirements must be met to ensure standing; the Supreme Court has developed the requirements over time through its case law. Just prior to SCRAP’s decision to sue the United States and the ICC, the Supreme Court had denied standing to the Sierra Club
in its environmental challenge to Disney
’s effort (with the support of the Interior
and Agriculture Departments
) to build a hotel and ski resort in California
. SCRAP’s claims of wrongdoing and harm to its members were not directed against a single project but against concrete but less discernible harm throughout the nation, including in the Washington, D.C. area where they lived and attended law school.
judge had to decide whether the complaint prepared and filed by the students should be transferred to a three-judge panel appointed by the Chief Judge of the United States Court of Appeals for the District of Columbia
(Judge David Bazelon). A hearing was held before Judge Charles Richey on a temporary restraining order. The Environmental Defense Fund
(EDF), acting with other environmental groups, sought to intervene by filing its own complaint. SCRAP objected to intervention and the new complaint. Judge Richey allowed EDF to intervene as a party but rejected its separate complaint. The nation's railroads also intervened as a matter of right. The ICC and the U.S. moved to dismiss SCRAP’s complaint for a lack of standing to sue. The ICC also claimed the court had no authority to interfere in this early stage (characterized as the "suspension stage") of the rate proceeding in part because the ICC retained jurisdiction although the increased rates could be collected by the railroads. Judge Richey denied the TRO, rejected the motion on standing and referred the case to a three-judge panel. His decision is unreported but is described in To A High Court, The Tumult and Choices that Led to United States v. SCRAP (below).
The three-judge panel was presided over by Judge J. Skelly Wright and included Judges Thomas Flannery and Judge Richey. The United States, the ICC and the Railroads continued to challenge SCRAP’s standing and contended that at this stage of the rate process (the suspension stage), a preliminary injunction could not be issued by the court. Following a hearing, the court, in an opinion by Judge Wright, concluded SCRAP had standing to sue. He also concluded that although Congress had vested exclusive jurisdiction in the ICC at the suspension stage of rate-making, Congress had granted the court jurisdiction to review ICC decisions when there was a violation of NEPA. Because harm was imminent, and an EIS not yet prepared, the nation's railroads were enjoined from collecting the rate increase on recyclable materials. The railroads and the ICC sought a stay of the injunction from Chief Justice Burger, who denied it. The court noted probable jurisdiction at the request of the United States, the ICC and the Nation’s Railroads.
wrote the opinion in three parts. In Part II (standing to sue), he concluded that the allegations in the complaint demonstrated that the individual members of SCRAP would be injured by the freight rate increase. Although the complaint contained various allegations of harm, Justice Stewart relied almost exclusively on SCRAP’s allegation that each of its members "'[u]ses the forest, rivers, streams, mountains, and other natural resources of 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…." He determined that although "attenuated," SCRAP’s members had "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." In Part III of the decision, Justice Stewart concluded that at this early stage of the rate increase review process (the suspension stage) the Court had no jurisdiction to issue a preliminary injunction. Although the 2.5 percent rate increase could go into effect (and the harm SCRAP alleged would occur), the ICC retained jurisdiction to further review the increase. The Court also noted the ICC’s intention to comply with NEPA’s requirements at a later stage in the proceedings.
concluded that "in evaluating whether injunctive relief is warranted, I would not require that the appellees, in their individual capacities prove that they 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."
concurred in Justice Stewart’s opinion on standing to sue but also was "convinced there is no lack of judicial power to issue a preliminary injunction against the interim surcharge... ." He believed that, "[p]roperly viewed...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 determination of the legality of the Commission’s action at the suspension stage in light of the requirements of NEPA." He reasoned that, "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 evidence of a congressional intent to do so…. No such clear intent is to be found in the Interstate Commerce Act…." The Commission also was not entitled to deference because it had special expertise in environmental matters. Consequently, "the grant of preliminary relief here involves no such interference with the Commission’s initial exercise of its particular expertise... [And] 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?" Citing Scripps-Howard Radio, Inc. v. FCC, 316 U.S. at 17, Justice Marshall opined that Congress "knew how to use apt words" if it wanted to deprive the District Court of its historic power to enjoin agency actions to preserve its jurisdiction.
supported SCRAP’s standing for the same reason the majority opinion did. He also recognized the importance of SCRAP’s allegation that its "members suffered environmental and economic injury as a result of the alleged increase, because the increase diminished the total amount of recycling in the United States, and made those products, which were in fact manufactured from waste materials after the rate increase, more expensive in the marketplace." He also examined in detail the relationship between the railroads’ rate increase and the manner in which – recognized by the President’s Council on Environmental Quality
and the Environmental Protection Agency – the basic rate structure and the increase discouraged the still fledgling efforts of state and local governments to recycle. Finally, he would have supported the District Court's reasoning that a preliminary injunction should issue to protect NEPA's purpose and thwart the ICC's "technical maneuvers" to avoid it.
would have dismissed the complaint because SCRAP lacked standing to sue: "To me, the alleged injuries are so remote, speculative, and insubstantial in fact that they fail to confer standing." SCRAP's allegation that the rate's effect of "retarding the use of recycled materials, causing further consumption of our forests and natural resources," became, Justice White concluded "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." He compared the allegations to those of taxpayers in Massachusetts v. Mellon, 262 U.S. 447, 486-489 (1923), "or allegations that government decisions are offensive to reason or morals." Justice White also expressed his position that “failure of 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."
(EIS) on the economic and environmental effect of the rate increase. On remand, the District Court found the EIS inadequate and issued a preliminary injunction. Chief Justice Burger stayed the order. The full Court declined to vacate the order, vacated the preliminary injunction' and remanded the case for reconsideration. The District Court, on reconsideration, concluded the EIS was inadequate and directed the ICC to prepare another one and reconsider its decision. The Supreme Court (per Justice White) reversed the District Court in Aberdeen & Rockfish R. Co. v. SCRAP, . Justice Douglas dissented. He would have affirmed the District court decision in large part because of the inadequacy of the EIS and the need to consider NEPA more than "a technical statute of administrative procedure." The United States, the ICC and the railroads made no further challenge to SCRAP's standing to sue.
became the majority's guiding principle in determining standing to sue, often over contentious dissenting opinions.
wrote that "the Court's SCRAP-era willingness to discern breathlessly broad congressional grants of standing will not endure." After becoming a member of the Supreme Court, Justice Scalia sought to further expand the requirements of standing to sue and to limit SCRAPs reach.
In Lujan v. National Wildlife Federation, , Justice Scalia (for a 5-4 majority) concluded that the National Wildlife Federation
did not have standing to sue to challenge the Interior Department’s reclassification of some withdrawn public lands and the return of others to the public domain in violation of the Federal Land Policy and Management Act
and NEPA. With specific reference to SCRAP and NWF’s reliance on it, Justice Scalia concluded: "The SCRAP opinion, whose expansive expression of what would suffice...has never since been emulated by this Court... ." Dissenting, Justice Blackmun characterized Justice Scalia’s plurality opinion as "what amounts to a slash-and-burn expedition through the law of environmental standing. In my view, '[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.'" In Lujan v. Defenders of Wildlife (1992), Justice Scalia (for the majority) concluded Defenders did not have standing to challenge a new Interior regulation under the Endangered Species Act
(ESA), 1 U.S.C. §1533, 1536. In the opinion, Justice Scalia’s criticism of Defenders’ reasoning to support standing to sue included a criticism of SCRAP as being an "ingenious exercise."
In Massachusetts v. EPA (2007), neither side had included reference to United States v. SCRAP in their briefs before the Supreme Court. Sua sponte
, Justice Scalia raised SCRAP during Massachusetts' oral argument. The Court, through Justice Stevens, concluded that Massachusetts had standing to challenge EPA's failure to propose regulations to control greenhouse gas emissions from new motor vehicles. In response to Chief Justice Roberts' dissent concerning SCRAP, Justice Stevens affirmed the decision on standing in U.S. v. SCRAP. Stevens wrote that "Chief Justice Roberts did not, however, disavow [the] portion of Justice Stewart's opinion for the Court," where he expressed his reasoning to support the standing to sue of the law students. Justice Stevens also added that it is "quite wrong" to analogize Massachusetts' allegations of harm to a "lawyer's game."
Chief Justice Roberts' dissenting opinion was devoted largely to standing. With specific reference to United States v. SCRAP, he wrote that, "Over time, SCRAP became emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint. SCRAP made standing seem a lawyer's game, rather than a fundamental limitation ensuring that courts function as courts and not intrude on the politically accountable branches. Today’s decision is SCRAP for a new generation."
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1973), was a landmark 8-0 decision of the United States Supreme Court which was argued February 28, 1973 and decided June 18, 1973. The Court held that the members of SCRAP – five law students from The George Washington University – had standing to sue under Article III of the Constitution to challenge a nationwide railroad freight rate increase approved by the Interstate Commerce Commission (ICC). SCRAP was the first full-court consideration of the American
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
National Environmental Policy Act (NEPA). The Court also reversed the lower court decision that an injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
should be issued at the suspension stage of the ICC rate proceeding. The standing decision has retained its place as the high mark in the Court’s standing jurisprudence.
Student movement
In the late 1960s1960s
The 1960s was the decade that started on January 1, 1960, and ended on December 31, 1969. It was the seventh decade of the 20th century.The 1960s term also refers to an era more often called The Sixties, denoting the complex of inter-related cultural and political trends across the globe...
, Ralph Nader
Ralph Nader
Ralph Nader is an American political activist, as well as an author, lecturer, and attorney. Areas of particular concern to Nader include consumer protection, humanitarianism, environmentalism, and democratic government....
, with the help of law and graduate students, sought to expose disquieting and sometimes corrupting relationships
Regulatory capture
In economics, regulatory capture occurs when a state regulatory agency created to act in the public interest instead advances the commercial or special interests that dominate the industry or sector it is charged with regulating. Regulatory capture is a form of government failure, as it can act as...
between industry and government regulatory agencies, whose duty it was to act in the public interest. Notorious among those relationships was the Interstate Commerce Commission (ICC) and United States railroads
Rail transport in the United States
Presently, most rail transport in the United States is based on freight train shipments. The U.S. rail industry has experienced repeated convulsions due to changing U.S. economic needs and the rise of automobile, bus, and air transport....
. Members of Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
, such as Senator
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
s Lee Metcalf
Lee Metcalf
Lee Warren Metcalf was an American politician of the Democratic Party and was a United States Representative, and a United States Senator from Montana....
(Montana) and Warren Magnuson (Washington), also had exposed the relationship and its harmful effects on American
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
farmers, consumers
Consumer
Consumer is a broad label for any individuals or households that use goods generated within the economy. The concept of a consumer occurs in different contexts, so that the usage and significance of the term may vary.-Economics and marketing:...
and shippers. This public and congressional scrutiny occurred during the tumult of the Vietnam War, especially in Washington, D.C., and the fledgling environmental movement led, in Congress, by Senators Edmund Muskie
Edmund Muskie
Edmund Sixtus "Ed" Muskie was an American politician from Rumford, Maine. He served as Governor of Maine from 1955 to 1959, as a member of the United States Senate from 1959 to 1980, and as Secretary of State under Jimmy Carter from 1980 to 1981...
(Maine) and Henry Jackson
Henry M. Jackson
Henry Martin "Scoop" Jackson was a U.S. Congressman and Senator from the state of Washington from 1941 until his death...
(Washington). Among the laws enacted was the National Environmental Policy Act, effective January 1, 1970.
Within The George Washington Law School, Professor John Banzhaf – to the consternation of traditionalists in legal education – encouraged students to identify problematic corporate/regulatory agency relationships and to engage and challenge them in practical, real terms on their own turf. The five law students that formed Students Challenging Regulatory Agency Procedures (SCRAP) began their journey in December 1971 with the filing of a Petition in the ICC that sought a one billion dollar refund for the failure of the Commission to comply with NEPA in approving a 20 percent rate increase (after NEPA's effective date) that SCRAP (and others) claimed discriminated against the movement of recyclable materials by favoring the movement of raw materials. In April and May 1972, SCRAP sued the United States and the ICC in the United States District Court for the District of Columbia for violating NEPA in approving the 20 percent increase (already being collected) and a new 2.5 percent rate increase on all freight transported by all of the Nation’s Railroads. SCRAP then sought a preliminary injunction
Preliminary injunction
A preliminary injunction, in equity, is an injunction entered by a court prior to a final determination of the merits of a legal case, in order to restrain a party from going forward with a course of conduct or compelling a party to continue with a course of conduct until the case has been decided...
and a temporary injunction prior to the effective date of the 2.5 percent rate increase.
Standing
Under Article IIIArticle Three of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.-Section 1: Federal courts:...
, Section 2 of the Constitution, the court’s jurisdiction is limited to "cases...or controversies." Historically the court has determined that various requirements must be met to comply with the Article III jurisdictional threshold, without which federal courts cannot consider the case and the wrongdoing alleged by the plaintiff goes forward. Those requirements include, among others, "standing to sue
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
". The Constitution does not identify what requirements must be met to ensure standing; the Supreme Court has developed the requirements over time through its case law. Just prior to SCRAP’s decision to sue the United States and the ICC, the Supreme Court had denied standing to the Sierra Club
Sierra Club
The Sierra Club is the oldest, largest, and most influential grassroots environmental organization in the United States. It was founded on May 28, 1892, in San Francisco, California, by the conservationist and preservationist John Muir, who became its first president...
in its environmental challenge to Disney
The Walt Disney Company
The Walt Disney Company is the largest media conglomerate in the world in terms of revenue. Founded on October 16, 1923, by Walt and Roy Disney as the Disney Brothers Cartoon Studio, Walt Disney Productions established itself as a leader in the American animation industry before diversifying into...
’s effort (with the support of the Interior
United States Department of the Interior
The United States Department of the Interior is the United States federal executive department of the U.S. government responsible for the management and conservation of most federal land and natural resources, and the administration of programs relating to Native Americans, Alaska Natives, Native...
and Agriculture Departments
United States Department of Agriculture
The United States Department of Agriculture is the United States federal executive department responsible for developing and executing U.S. federal government policy on farming, agriculture, and food...
) to build a hotel and ski resort in California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
. SCRAP’s claims of wrongdoing and harm to its members were not directed against a single project but against concrete but less discernible harm throughout the nation, including in the Washington, D.C. area where they lived and attended law school.
Lower court decisions
Under a special statute governing the ICC, a single District CourtUnited States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
judge had to decide whether the complaint prepared and filed by the students should be transferred to a three-judge panel appointed by the Chief Judge of the United States Court of Appeals for the District of Columbia
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
(Judge David Bazelon). A hearing was held before Judge Charles Richey on a temporary restraining order. The Environmental Defense Fund
Environmental Defense
Environmental Defense Fund or EDF is a United States–based nonprofit environmental advocacy group. The group is known for its work on issues including global warming, ecosystem restoration, oceans, and human health...
(EDF), acting with other environmental groups, sought to intervene by filing its own complaint. SCRAP objected to intervention and the new complaint. Judge Richey allowed EDF to intervene as a party but rejected its separate complaint. The nation's railroads also intervened as a matter of right. The ICC and the U.S. moved to dismiss SCRAP’s complaint for a lack of standing to sue. The ICC also claimed the court had no authority to interfere in this early stage (characterized as the "suspension stage") of the rate proceeding in part because the ICC retained jurisdiction although the increased rates could be collected by the railroads. Judge Richey denied the TRO, rejected the motion on standing and referred the case to a three-judge panel. His decision is unreported but is described in To A High Court, The Tumult and Choices that Led to United States v. SCRAP (below).
The three-judge panel was presided over by Judge J. Skelly Wright and included Judges Thomas Flannery and Judge Richey. The United States, the ICC and the Railroads continued to challenge SCRAP’s standing and contended that at this stage of the rate process (the suspension stage), a preliminary injunction could not be issued by the court. Following a hearing, the court, in an opinion by Judge Wright, concluded SCRAP had standing to sue. He also concluded that although Congress had vested exclusive jurisdiction in the ICC at the suspension stage of rate-making, Congress had granted the court jurisdiction to review ICC decisions when there was a violation of NEPA. Because harm was imminent, and an EIS not yet prepared, the nation's railroads were enjoined from collecting the rate increase on recyclable materials. The railroads and the ICC sought a stay of the injunction from Chief Justice Burger, who denied it. The court noted probable jurisdiction at the request of the United States, the ICC and the Nation’s Railroads.
U.S. Supreme Court decision
Justice Potter StewartPotter Stewart
Potter Stewart was an Associate Justice of the United States Supreme Court. During his tenure, he made, among other areas, major contributions to criminal justice reform, civil rights, access to the courts, and Fourth Amendment jurisprudence.-Education:Stewart was born in Jackson, Michigan,...
wrote the opinion in three parts. In Part II (standing to sue), he concluded that the allegations in the complaint demonstrated that the individual members of SCRAP would be injured by the freight rate increase. Although the complaint contained various allegations of harm, Justice Stewart relied almost exclusively on SCRAP’s allegation that each of its members "'[u]ses the forest, rivers, streams, mountains, and other natural resources of 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…." He determined that although "attenuated," SCRAP’s members had "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." In Part III of the decision, Justice Stewart concluded that at this early stage of the rate increase review process (the suspension stage) the Court had no jurisdiction to issue a preliminary injunction. Although the 2.5 percent rate increase could go into effect (and the harm SCRAP alleged would occur), the ICC retained jurisdiction to further review the increase. The Court also noted the ICC’s intention to comply with NEPA’s requirements at a later stage in the proceedings.
Blackmun's concurring opinion
Justice BlackmunHarry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
concluded that "in evaluating whether injunctive relief is warranted, I would not require that the appellees, in their individual capacities prove that they 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."
Marshall's opinion
Justice MarshallThurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
concurred in Justice Stewart’s opinion on standing to sue but also was "convinced there is no lack of judicial power to issue a preliminary injunction against the interim surcharge... ." He believed that, "[p]roperly viewed...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 determination of the legality of the Commission’s action at the suspension stage in light of the requirements of NEPA." He reasoned that, "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 evidence of a congressional intent to do so…. No such clear intent is to be found in the Interstate Commerce Act…." The Commission also was not entitled to deference because it had special expertise in environmental matters. Consequently, "the grant of preliminary relief here involves no such interference with the Commission’s initial exercise of its particular expertise... [And] 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?" Citing Scripps-Howard Radio, Inc. v. FCC, 316 U.S. at 17, Justice Marshall opined that Congress "knew how to use apt words" if it wanted to deprive the District Court of its historic power to enjoin agency actions to preserve its jurisdiction.
Douglas's dissenting opinion
Justice DouglasWilliam O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
supported SCRAP’s standing for the same reason the majority opinion did. He also recognized the importance of SCRAP’s allegation that its "members suffered environmental and economic injury as a result of the alleged increase, because the increase diminished the total amount of recycling in the United States, and made those products, which were in fact manufactured from waste materials after the rate increase, more expensive in the marketplace." He also examined in detail the relationship between the railroads’ rate increase and the manner in which – recognized by the President’s Council on Environmental Quality
Council on Environmental Quality
The Council on Environmental Quality is a division of the Executive Office of the President that coordinates federal environmental efforts in the United States and works closely with agencies and other White House offices in the development of environmental and energy policies and initiatives...
and the Environmental Protection Agency – the basic rate structure and the increase discouraged the still fledgling efforts of state and local governments to recycle. Finally, he would have supported the District Court's reasoning that a preliminary injunction should issue to protect NEPA's purpose and thwart the ICC's "technical maneuvers" to avoid it.
White's dissenting opinion
Justice WhiteByron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
would have dismissed the complaint because SCRAP lacked standing to sue: "To me, the alleged injuries are so remote, speculative, and insubstantial in fact that they fail to confer standing." SCRAP's allegation that the rate's effect of "retarding the use of recycled materials, causing further consumption of our forests and natural resources," became, Justice White concluded "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." He compared the allegations to those of taxpayers in Massachusetts v. Mellon, 262 U.S. 447, 486-489 (1923), "or allegations that government decisions are offensive to reason or morals." Justice White also expressed his position that “failure of 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."
Effects of the decision
The case was remanded to the District Court. The ICC had effectively incorporated the 2.5 percent surcharge into a larger rate increase, including on recyclable materials. The ICC also prepared a draft Environmental Impact StatementEnvironmental impact statement
An environmental impact statement , under United States environmental law, is a document required by the National Environmental Policy Act for certain actions "significantly affecting the quality of the human environment". An EIS is a tool for decision making...
(EIS) on the economic and environmental effect of the rate increase. On remand, the District Court found the EIS inadequate and issued a preliminary injunction. Chief Justice Burger stayed the order. The full Court declined to vacate the order, vacated the preliminary injunction' and remanded the case for reconsideration. The District Court, on reconsideration, concluded the EIS was inadequate and directed the ICC to prepare another one and reconsider its decision. The Supreme Court (per Justice White) reversed the District Court in Aberdeen & Rockfish R. Co. v. SCRAP, . Justice Douglas dissented. He would have affirmed the District court decision in large part because of the inadequacy of the EIS and the need to consider NEPA more than "a technical statute of administrative procedure." The United States, the ICC and the railroads made no further challenge to SCRAP's standing to sue.
Subsequent developments
Beginning in 1975, the Supreme Court of the United States significantly expanded the requirements necessary to meet Article III standing to sue. With a series of decisions in the 1980s, and an alteration in the Court’s composition, the notion of separation of powersSeparation of powers under the United States Constitution
Separation of powers is a political doctrine originating from the United States Constitution, according to which the legislative, executive, and judicial branches of the United States government are kept distinct in order to prevent abuse of power. This U.S...
became the majority's guiding principle in determining standing to sue, often over contentious dissenting opinions.
Justice Scalia
In "The Doctrine of Standing as an Essential Element of the Separation of Powers," 17 Suffolk Law Review, 881 (1983), then-United States Court of Appeals Judge Antonin ScaliaAntonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
wrote that "the Court's SCRAP-era willingness to discern breathlessly broad congressional grants of standing will not endure." After becoming a member of the Supreme Court, Justice Scalia sought to further expand the requirements of standing to sue and to limit SCRAPs reach.
In Lujan v. National Wildlife Federation, , Justice Scalia (for a 5-4 majority) concluded that the National Wildlife Federation
National Wildlife Federation
The National Wildlife Federation is the United States' largest private, nonprofit conservation education and advocacy organization, with over four million members and supporters, and 48 state and territorial affiliated organizations...
did not have standing to sue to challenge the Interior Department’s reclassification of some withdrawn public lands and the return of others to the public domain in violation of the Federal Land Policy and Management Act
Federal Land Policy and Management Act
Federal Land Policy Management Act, or FLPMA , is a United States federal law that governs the way in which the public lands administered by the Bureau of Land Management are managed. The law was enacted in 1976 by the 94th Congress. Congress recognized the value of the public lands, declaring...
and NEPA. With specific reference to SCRAP and NWF’s reliance on it, Justice Scalia concluded: "The SCRAP opinion, whose expansive expression of what would suffice...has never since been emulated by this Court... ." Dissenting, Justice Blackmun characterized Justice Scalia’s plurality opinion as "what amounts to a slash-and-burn expedition through the law of environmental standing. In my view, '[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.'" In Lujan v. Defenders of Wildlife (1992), Justice Scalia (for the majority) concluded Defenders did not have standing to challenge a new Interior regulation under the Endangered Species Act
Endangered Species Act
The Endangered Species Act of 1973 is one of the dozens of United States environmental laws passed in the 1970s. Signed into law by President Richard Nixon on December 28, 1973, it was designed to protect critically imperiled species from extinction as a "consequence of economic growth and...
(ESA), 1 U.S.C. §1533, 1536. In the opinion, Justice Scalia’s criticism of Defenders’ reasoning to support standing to sue included a criticism of SCRAP as being an "ingenious exercise."
In Massachusetts v. EPA (2007), neither side had included reference to United States v. SCRAP in their briefs before the Supreme Court. Sua sponte
Sua sponte
In law, sua sponte describes an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken without a prior motion or request from the parties...
, Justice Scalia raised SCRAP during Massachusetts' oral argument. The Court, through Justice Stevens, concluded that Massachusetts had standing to challenge EPA's failure to propose regulations to control greenhouse gas emissions from new motor vehicles. In response to Chief Justice Roberts' dissent concerning SCRAP, Justice Stevens affirmed the decision on standing in U.S. v. SCRAP. Stevens wrote that "Chief Justice Roberts did not, however, disavow [the] portion of Justice Stewart's opinion for the Court," where he expressed his reasoning to support the standing to sue of the law students. Justice Stevens also added that it is "quite wrong" to analogize Massachusetts' allegations of harm to a "lawyer's game."
Chief Justice Roberts' dissenting opinion was devoted largely to standing. With specific reference to United States v. SCRAP, he wrote that, "Over time, SCRAP became emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint. SCRAP made standing seem a lawyer's game, rather than a fundamental limitation ensuring that courts function as courts and not intrude on the politically accountable branches. Today’s decision is SCRAP for a new generation."
Sources and further reading
- Neil Thomas Proto, To A High Court, The Tumult and Choices That Led to United States v. SCRAP, Hamilton Books (Rowan and Littlefield Publishing Group (2006)). High Court’s appendix includes the student-drafted amended complaint that provided the basis for the Court’s decision. See www.toahighcourt.com, which includes an extensive photo journal of the time period and participants and some relevant law review articles concerning standing to sue.
- See also, for example, Erwin Chemerinsky, Constitutional Law, Principles and Politics (3rd ed.) Aspen Treatise Series (2006) (Standing to Sue, 74, 91).
- Zygmunt Plater, Robert H. Abrams, William Goldfarb, Robert L. Graham, Lisa Heinzerling, David A. Wirth, Environmental Law and Policy: Nature, Law, and Society (3rd ed.) Aspen Publishers (2004) (Standing and the Institutionalization of Citizens Enforcement, 395, 406-408).
- Jerome A. Barron, C. Thomas Dienes, Wayne McCormack, Martin H. Redis, Constitutional Law: Principles and Policy, Cases and Materials (7th ed.) Matthew Bender and Company (2006) (Justiceability Limitations, 1579, 1589).
- William H. Rodgers, Jr., Environmental Law Treatise, Vols. 1-4 (Thomson/West) with supplements (2006).
- Daniel Mandelker, NEPA Law and Litigation. (2nd ed. with supplements) Clark Boardman (2002) (Standing to Sue, Section 4.06).
External links
- Full text of Massachusetts v. E.P.A. courtesy of the Legal Information Institute.
- Website for Proto, Neil Thomas, To A High Court, The Tumult and Choices That Led To United States of America v. SCRAP