Asphalt Roofing Mfrs. Ass'n v. I.C.C.
| Decision Date | 05 January 1978 |
| Docket Number | Nos. 75-1641,75-1779,75-1893,75-1760,75-1833,75-1716,75-1768,s. 75-1641 |
| Citation | 186 U.S.App.D.C. 1,567 F.2d 994 |
| Parties | , 186 U.S.App.D.C. 1, 8 Envtl. L. Rep. 20,037 ASPHALT ROOFING MANUFACTURERS ASSOCIATION, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Atchison, Topeka and Santa Fe Railroad Co. et al., Eastern Railroads of the U. S., Fertilizer Institute et al., Intervenors. * SOUTHERN FOREST PRODUCTS ASSOCIATION, Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Atchison, Topeka and Santa Fe Railroad Co. et al., Eastern Railroads of the U. S., Fertilizer Institute et al., Intervenors. SUNKIST GROWERS, INC., et al., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Atchison, Topeka and Santa Fe Railway Co., Fertilizer Institute et al., Intervenors. UNITED STATES BEET SUGAR ASSOCIATION et al., Petitioners, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Eastern Railroads, Atchison, Topeka and Santa Fe Railway Co., Fertilizer Institute et al., Intervenors. AMERICAN FROZEN FOOD INSTITUTE, Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Eastern Railroads, Certain-Teed Products Corporation, Atchison, Topeka and Santa Fe Railway Co., Fertilizer Institute et al., Intervenors. VOLKSWAGEN OF AMERICA, INC., Petitioner, v. The UNITED STATES of America and the Interstate Commerce Commission, Respondents, Atchison, Topeka and Santa Fe Railway Co., Eastern Railroads, Fertilizer Institute et al., Intervenors. FORD MOTOR COMPANY, Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Atchison, Topeka and Santa Fe Railway Co., Fertilizer Institute et al., Intervenors. GENERAL MOTORS CORPORATION, Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Atchison, Topeka and Santa Fe Railroad Co. et al., Fertilizer Institute et al., Intervenors. AMERICAN MOTORS CORPORATION, Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
William Q. Keenan, New York City, with whom Charles J. McCarthy, Washington, D. C., was on the briefs, for petitioners in Nos. 75-1641 et al., No. 75-2028 and No. 75-2029. Henry M. Wick, Jr., Charles J. Streiff, Pittsburgh, Pa., Dickson R. Loos, Barry Roberts, John A. Whitney, Washington, D. C., A. Wallace Tashima, Los Angeles, Cal., Richard E. Costello, New York City, Frederick L. Wood, Jackson, Mich., Martin J. Leavitt, Northville, Mich., Walter Vashak, David R. Larrouy, Dearborn, Mich., Benson T. Buck, Anthony A. Haisch, Jay A. Herbst, Detroit, Mich., and Jeffrey Lee Guttero, Newport Beach, Cal., were on petitioners' joint brief on common issues in Nos. 75-1641 et al.
Howard Gould, Cincinnati, Ohio, with whom David Reichert and Stephen D. Strauss, Cincinnati, Ohio, were on the brief, for petitioner in No. 75-1982.
Edward L. Merrigan, Washington, D. C., for petitioners in Nos. 75-1255 and 75-2022.
John A. Whitney, Washington, D. C., with whom Dickson R. Loos, Washington, D. C., was on the brief, for petitioners in No. 75-1760. Barry Roberts, Washington, D. C., also entered an appearance for petitioners in No. 75-1760.
Peter A. Fitzpatrick, Asst. Gen. Counsel, I. C. C., Washington, D. C., for respondent, I. C. C., and John Osborn, Atty., Dept. of Justice, for respondent, U. S., in Nos. 75-1641 et al.
Charles H. White, Jr., Associate Gen. Counsel, I. C. C., Washington, D. C., for respondents in Nos. 75-2028, 75-1255 and 75-2022.
Hanford O'Hara, Associate Gen. Counsel, I. C. C., Washington, D. C., for respondents in Nos. 75-1982 and 75-2029.
Richard J. Flynn, Washington, D. C., with whom Joseph B. Tompkins, Jr., and R. Eden Martin, Chicago, were on the brief, for intervenors Western and Southern Railroads in Nos. 75-1641 et al. and No. 75-2028. Peter J. Vaghi, Washington, D. C., was also on the brief for intervenors in No. 75-2028. John E. Haley, Washington, D. C., also entered an appearance for intervenors in Nos. 75-1641 et al.
John A. Daily, Philadelphia, Pa., with whom Edward A. Kaier, Philadelphia, Pa., was on the brief, for intervenors Eastern Railroads in Nos. 75-1641 et al., 75-2028, 75-1982 and 75-2029.
Michael Boudin, Washington, D. C., with whom Charles A. Horsky, Arthur F. Fergenson, John A. Daily, Washington, D. C., and Thormund A. Miller, San Francisco, Cal., were on the brief, for intervenors Aberdeen and Rockfish Railroad Co., et al., in Nos. 75-1255 and 75-2022.
Henry M. Wick, Jr., Charles J. Streiff, Pittsburgh, Pa., Charles W. Chapman, Washington, D. C., and Frederic L. Wood, Washington, D. C., were on the brief for petitioners in No. 75-1716.
A. Wallace Tashima, Los Angeles, Cal., and Richard E. Costello, New York City, were on the brief for petitioners in No. 75-1768.
Donald G. Dressler and Jeffrey Lee Guttero, Newport Beach, Cal., were on the brief for petitioners in No. 75-1937.
John F. Donelan, Washington, D. C., and Frederic L. Wood, Washington, D. C., were on the brief for petitioner in No. 75-1779.
Jay A. Herbst, Detroit, Mich., was on the brief for petitioner in No. 75-1895.
David Larrouy and Walter Vashak, Dearborn, Mich., were on the brief for petitioner in No. 75-1893.
Martin J. Leavitt, Northville, Mich., was on the brief for petitioner in No. 75-1833.
Benson T. Buck, Detroit, Mich., was on the brief for petitioner in No. 75-1894. Leonard F. Charla, Fairfield, N. J., also entered an appearance for petitioner in No. 75-1894.
Arthur J. Cerra, Gen. Counsel, I. C. C., Hanford O'Hara, Associate Gen. Counsel, I. C. C., Carl D. Lawson and John J. Powers, III, Attys., Dept. of Justice, were on the brief for respondents in Nos. 75-1641 et al. John H. D. Wigger, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for respondent United States of America in Nos. 75-1641 et al., No. 75-2028 and Nos. 75-1982 and 75-2029.
Robert S. Burk, Acting Gen. Counsel, and Hanford O'Hara, Associate Gen. Counsel, I. C. C., Washington, D. C., were on the brief for respondent I. C. C. in No. 75-2028. Carl D. Lawson and Lloyd John Osborn, Attys., Dept. of Justice, Washington, D. C., were on the brief for respondent United States of America in No. 75-2028, Nos. 75-1982 and 75-2029 and Nos. 75-1255 and 75-2022.
Arthur J. Cerra, Gen. Counsel, Charles H. White, Jr., Associate Gen. Counsel, and Peter A. Fitzpatrick, Asst. Gen. Counsel, I. C. C., Washington, D. C., were on the brief for respondents in Nos. 75-1982 and 75-2029.
Peter R. Taft, Asst. Atty. Gen., Arthur J. Cerra, Gen. Counsel, Fritz R. Kahn, Gen. Counsel, I. C. C., at the time the brief was filed, Washington, D. C., and Larry G. Gutterridge and Edmund B. Clark, Attys., Dept. of Justice, Washington, D. C., were on the brief for respondents in Nos. 75-1255 and 75-2022. Wallace H. Johnson, Asst. Atty. Gen. at the time the record was filed, Washington, D. C., Peter H. Fitzpatrick, Asst. Gen. Counsel, I. C. C., and Carl Strass, Atty., Dept. of Justice, Washington, D. C., also entered appearances for respondents in Nos. 75-1255 and 75-2022.
Joel S. Moskowitz, Deputy Atty. Gen., State of Cal., Sacramento, Cal., filed a brief on behalf of the People of the State of Cal. and Cal. State Solid Waste Management Bd. as amicus curiae, urging reversal, in Nos. 75-1255 and 75-2022.
John D. Conner, Washington, D. C., entered an appearance for intervenors The Fertilizer Institute and The Canadian Fertilizer Institute in Nos. 75-1641 et al., and No. 75-2028.
Charles W. Chapman, Washington, D. C., also entered an appearance for intervenor Certain-Teed Products Corp. in No. 75-1779.
Before Mr. Justice CLARK, * of the Supreme Court of the United States, and MacKINNON and ROBB, Circuit Judges.
Opinion for the court PER CURIAM.
This proceeding, in which the petitioners are shippers, involves four separate cases, 1 three of which are consolidated actions, each seeking review of Interstate Commerce Commission (ICC) orders entered in connection with several railroad rate increases. Two of the increases are challenged on predominantly economic grounds, three largely on environmental ones, and two on both economic and environmental bases.
Under the Interstate Commerce Act (The Act) the initiative in rate-setting is vested in the railroads with the ICC holding the power to declare a rate unlawful if it finds it unjust, unreasonable, preferential, discriminatory, or otherwise in violation of the Act. 49 U.S.C. §§ 13 and15 (1970). Moreover, the ICC has the sole power to suspend a new rate for a maximum of seven months pending the Commission's determination of its lawfulness, 49 U.S.C. § 15(7). If a single commodity is involved, the investigation, if undertaken, will be limited to the justness and reasonableness of the rate proposed. However, if the increase is across-the-board, the ICC need not consider each product separately, but may find the new rates lawful after taking proof relating to the reasonableness of the increase in general, New England Divisions Case, 261 U.S. 184 (1923), or by declining to declare it unlawful following investigation, United States v. Louisiana,290 U.S. 70 (1933). This latter procedure has since become known as a general revenue proceeding.
The ICC's inquiry primarily focuses on whether railroads are truly in need of increased revenues, leaving determinations as to individual commodities to individual rate or refund proceedings under 49 U.S.C. §§ 13 and 15. Let us now...
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