This article is excerpted from To a High Court: Five Bold Law Students Challenge Corporate Greed and Change the Law by Neil Thomas Proto (FriesenPress, 2023). Proto’s first-person account chronicles the efforts of a group of law students—chaired by Proto at the time—to challenge an increase granted by the Interstate Commerce Commission to railroad freight rates nationwide, suing the U.S. and the ICC for violating the National Environmental Policy Act. Their lawsuit culminated in the landmark 1973 decision on Article III standing United States v. Students Challenging Regulatory Agency Procedures (SCRAP).
The Supreme Court, February 28, 1973
The Chief Justice calls the first case: “The Atchison, Topeka and Santa Fe Railroad Company versus the Wichita Board of Trade, Number 72214.” The Court is being asked to review an order of the Interstate Commerce Commission. The order permits particular railroads to increase their charge to grain shippers by 100 percent to stop the train in transit, inspect the grain, and determine its grade. The agrarians object. They are the railroads’ captives. It was the rough and quixotic abuse of this dependence that spurred the Granger movement and the presidential efforts of William Jennings Bryan. It also moved literary realists like Theodore Dreiser and Frank Norris— abhorred, angry, seeking to further awaken the nation to the railroads’ intimidating grip on the land. Norris said it: “[T]he symbol of a vast power … leaving blood and destruction in its path; the Leviathan, with tentacles of steel clutching into the soil, the soulless force, the iron-hearted power, the monster, the Colossus, the Octopus.” In 1887, Congress created a national institution to regulate the railroads and to protect the public interest: the Interstate Commerce Commission. That attempt had not worked. Montana’s Senator Mike Mansfield sought yearly to legislate the Commission’s abolition. He could not do it.
The Chief Justice thanks the participants in a pro forma but polite way. He settles back into his chair. The attorneys representing the next set of adversaries move into place. George places his hand firmly around my forearm. “We got here,” he whispers evenly. John looks at the two of us and smiles. It is one of his cunning grins. He sits back, prepared to listen. He will not miss a word. Neither will I.
“We will hear argument next in 72535 and 562, United States and ICC against Students,” says Warren Burger, “and Aberdeen and Rockfish Railroad against Students.” The Chief Justice pushes his hair back, seeming to bring recognition to its whiteness. He adjusts his posture—erect, framed, subtly moving his head downward so as to assure himself that the attorneys for each side are prepared to argue their case. He obviously has done this before.
The solicitor general of the United States, Erwin Griswold, has taken his seat at the counsel table directly in front of the Chief Justice and slightly to his left. It is Griswold’s responsibility to represent the United States and the Interstate Commerce Commission. He is the former dean of the Harvard Law School and is experienced in Supreme Court argument. He is wearing his morning coat. Seated next to him is Hugh B. Cox, senior partner at Covington & Burling, Washington’s most prestigious law firm. He is representing the nation’s railroads. Cox also is part of the tradition. He is familiar to this setting and knowledgeable about its culture. He, too, is wearing a morning coat.
Seated at the other end of the table is the attorney for the appellee, Students Challenging Regulatory Agency Procedures (SCRAP). Peter Harwood Meyers is twenty-six years old and a 1971 graduate from the George Washington University School of Law. This is the third oral argument he has ever presented. The first two were in the SCRAP case in the court below.
Meyers is sitting erect, hands folded on the table, nodding slightly when the Chief Justice looks downward. Meyers has trimmed his hair to a fashionable length and is wearing a white shirt. While he has no morning coat, he looks comparatively better without the lavender shirt he wore in the court below. Also at the table, to Peter’s left, is Professor John Banzhaf. “B as in Boy, AN, Z as in Zebra, HAF.” That is the way he spells it for the press, an institution he is acutely sensitive to and depends on for success. He, too, is without a morning coat. Despite the respectful appearance of the two, I know for a fact they have not done this before.
We had decided to file this lawsuit against the Interstate Commerce Commission in May 1972 because the Commission had failed to prepare a detailed statement on the environmental impact of a rate increase granted to all the nation’s railroads on all freight. This obligation, we contended repeatedly to the Commission since fall 1971, was imposed on the Commission by a new law, the National Environmental Policy Act (NEPA). The increased rates are discriminatory. They encourage the extraction of natural resources, including iron ore and timber, and they discourage industrial use of recyclable materials such as scrap iron and steel and textile and paper waste. They also impede the ability of the nation’s cities to move enormous amounts of solid waste. We urged the Commission to consider the environmental consequences nationwide, the same geographic reach of the railroads’ own rate increase.
The Commission and the railroads disagreed. It is their custom to do so. The 1970 report by Ralph Nader’s study group characterized the Commission as a place where “the men in … upper staff … share a protective attitude to ward the transportation industry. They are afraid of change.” This custom of insulation has a legal counterpart. The Supreme Court has regularly deferred to the Commission’s decisions. The Commissioners can do largely what they have always done: resist the public and protect the railroads. They knew that fact going into our lawsuit. So did we.
SCRAP is holding its own. In an opinion written in July 1972, a specially impaneled three-judge district court agreed with SCRAP’s position. “[SCRAP] alleges,” Judge J. Skelly Wright wrote, “that this price increase will discourage the environmentally desirable use of recyclable goods and that … under the terms of NEPA, cannot take effect before a ‘detailed statement on the environmental impact of the proposed action’ is prepared.” The court stopped the rates from going into effect. The railroads and the Commission are uneasy; their relationship has been penetrated, restricted by law, pronounced by a court of law—at the request of five law students. Since the lower court’s decision, the nation’s railroads have been stopped from collecting approximately $400,000 a month for one recyclable material alone: iron and steel scrap. We got their attention. The railroads, along with the United States and the Commission, immediately appealed to the Supreme Court. It is the first time the full Court will interpret the meaning of NEPA. The Chief Justice has already made his views known. He is for the Commission.
There is, however, a threshold legal question. It stems directly from the Constitution. In Article III, the framers created the Supreme Court and limited its jurisdiction to deciding only “cases … and … controversies.” Any party that attempts to invoke the Court’s jurisdiction has to show that it has, in fact, been injured by the government’s action. A party able to make that showing is said to have “standing to sue.” It is not done easily. The Constitution does not tell you what is required. The specific requirements are set by the Supreme Court speaking through its decisions. The requirement has changed over time. Without “standing to sue,” the Court must dismiss the lawsuit.
In the district court, the United States and the Commission challenged SCRAP’s “standing.” In its brief, the government made its case directly: “The plaintiff’s [SCRAP’s] lack of standing to maintain this action was settled by the recent decision of the Supreme Court in Sierra Club v. Morton,” rendered only a few weeks before our lawsuit was filed. According to the government, SCRAP has an even lesser claim: “The complainant in that case, Sierra Club, was a significant and respected organization, with a longstanding concern for the preservation of the environment…. S.C.R.A.P.’s purpose may be commendable, and the zeal of the five law students who comprise it perhaps should be encouraged. However, we respectfully submit that its concern for the public wellbeing does not give S.C.R.A.P. the requisite standing to maintain this action.”
The district court rejected the government’s argument. It concluded that SCRAP had “standing to sue.” But the question is not settled. The United States and the Commission, joined by the nation’s railroads, continue to raise it before the Supreme Court. If the members of SCRAP lack “standing to sue,” then the Commission’s failure to comply with NEPA cannot be reviewed by a court of law.
The solicitor general rises from the counsel table and steps with authoritative comfort to the podium directly in front of the Chief Justice. Solicitor General Griswold’s head moves slightly left to right, seeming to scan the bench as if acknowledging that everyone is present. Hugh Cox is seated to Griswold’s right. Cox is prepared, formidable in skill, and potent in the history and industrial force that buttress his position.
“I am representing the United States and the Interstate Commerce Commission,” the solicitor general states. “Mr. Cox is representing the appellant railroads in No. 72562. We have filed separate briefs, but there is no divergence between our positions.”
Finally, it is beginning. The line is drawn clearly. Now we will see whether it makes a difference that they have been here before and we have not.