ELR Citation: ELR 20638
No(s). 73-2496 (2d Cir. Jun 18, 1974)

The Second Circuit Court of Appeals affirms a district court order requiring the Interstate Commerce Commission to determine whether a NEPA impact statement is necessary in each railroad abandonment proceeding, and if so, to prepare a draft EIS prior to any administrative hearings. The single-judge district court had jurisdiction to issue a mandatory injunction against the ICC because a three-judge court convened under the Urgent Deficiencies Act is not required for the review of a procedural regulation defining the proper timing for preparation of NEPA impact statements. The circuit court also rules that the case represents an appropriate instance for an "action in the nature of mandamus" under 28 U.S.C. §1361, and holds that the questions presented are sufficiently ripe for judicial review on the merits. The Commission's failure to provide in its regulations for the circulation of a draft EIS prepared by its staff before administrative hearings on a proposed abandonment violates the requirements of NEPA as explicated in Greene County I (2 ELR 20017). The court points out that an informed threshold decision as to whether an EIS is required necessitates investigation and evaluation by the ICC's staff; decisions based on statements prepared by applicants and intervenors do not fulfill the agency's affirmative duty under NEPA to evaluate environmental issues.

Counsel for Plaintiff-Appellee Harlem Valley Transportation Association
William Hoppen
Jillson, Bedford & Hoppen
115 Broadway
New York, NY 10006

Counsel for Plaintiff-Appellee Natural Resources Defense Council, Inc.
Thomas L. Creel
Stuart J. Sinder
Kenyon, Kenyon, Reilly, Carr & Chapin
59 Maiden Lane
New York, NY 10038

Counsel for Amicus Curiae in Support of Plaintiffs-Appellees
Louis J. Lefkowitz Attorney General for the State of New York
Samuel A. Hirshowitz First Assistant Attorney General
Philip Weinberg
Thomas F. Harrison Asst. Attorneys General
2 World Trade Center
New York, NY 10047

Counsel for Defendants-Appellants
Wallace H. Johnson Asst. Attorney General
Edmund B. Clark
Henry J. Bourguignon
Department of Justice
Washington, DC 20530

Fritz R. Kahn General Counsel
Arthur J. Cerra Deputy General Counsel
Interstate Commerce Commission
Washington, DC 20423

Counsel for Amicus Curiae in Support of Appellants
William M. Maloney
Carl V. Lyon
John B. Norton
Association of American Railroads
1920 L Street, NW
Washington, DC 20036