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Show i NATIONAL HELIUM CO { . - Cite as iS-6 F. had decreased t? In its final decision the court ruled An average oi that it~was" ltniitear""l;'o""''determining t of helium had whether the agency's action was arbi-ar. In the years trary, capricious, an abuse of discretion minished in sub orj)tfterwise not in accordance wffirthe 11 of the purchas law. It concluded that the Department's ough they contin ertort in preparing the impact statement two billion cubijwas an insufficient one which failed to • this entire pur come up to the mentioned standard in ernment througr. numerous respects. It characterized the 5 had purchase!-statement as "feeble," "obviously incom-t all of its need* piete," "appallingly deficient," "startling use the purchases in its brevity and lack of depth," and, fi- , the governmentnaiiy, said that the statement totally ch more of a supj failed to consider the environmental im-be used betweeipact of termination. The court disap-ddmated that it i proved the statement in its entirety and Jl be needed. j remanded the cause for further proceed- 's decision the m • , . •••, . receded at ©see tj Reversal is demanded on the following tg to the prepare 2 r o u n d s : . environmental im First, it is contended that there was a initial draft wadack oi juidsdiction for the district court •d parties, includ-0 even entertain the case in view of the d comments werSupreme Court's recent decision (ren-neluded as part c|de.red since our last decision) in United rtment. The finaSfcates v. Students Chal. Rag. Agcy. Pro. nt was issued Nd(SCRAP). 412 U.S. GG9, 93 S.Ct. 2405, he hearing in th37 L.Ed.2d 254 (1973). id of a judicial K Second, the environmental statement Lrative record. Iwas valid and sufficient; the. district )(-;o. (This was icourt erred in condemning it. ^judication of thj Third, the Secretary complied with ioned interlocutory procedural requirements of NEPA ings in the distrkas w e | i a s wftn this court's mandate. as to the composTience> there was no justification for nistrative recorijssujngr t n e injunction. ^V°rtnait\t t0 e;[ Fourth, the district court erred in d the court s °P1Econsidering grounds other than suffi-exaaustive. jciency of F.E.S. since it lacked authority to enjoin for any ground except noncom- :y 26, 1971, that f i a n c e with NEPA. terminated effecth i his letter he statj a diminution in t] am for essential gcj and that there hi s since the executi! •h discoveries had pj of available helium j required for essentj i than is now in sto overed in governmft I. JURISDICTION A. WHETHER THE AUTHORITY OF THE SECRETARY IS SUPERSEDED BY NEPA. First we consider the renewed challenge to jurisdiction. As above noted, this question was determined adversely FiPOPArlOIT v. IvIOJuTClT • 9S9 2d &;>J (1973) to the government in the early appeal. See 455 F.2d at 650-654. The government now urges that the Supreme Court's recent decision in United States v. Students Challenging Regulatory Agency Procedures, supra, lias changed the applicable law and that this issue must be reexamined. In this recent case the Supreme Court reviewed the decision of the District of Columbia three-judge court which enjoined a proposed railroad rate increase of the Interstate Commerce Act. Under that Act a railroad is required to give at least 30 days notice for carrying out a proposed rate increase. During this period the Interstate Commerce Commission may, pursuant to § 15(7) of the Act, suspend the operation of the proposed rate for a maximum of seven months pending -an investigation and decision of the lawfulness of the new rates. The Interstate Commerce Commission refused to suspend the rate increase and the environmental issue arose from the fact that the increase involved a 2.5 percent surcharge on nearly all freight rates. Plaintiffs alleged that the modified rate structure would discourage the transportation of recyclable materials and promote the use of raw materials which compete with scrap material and would thereby affect the environment. The Court based its decision on Arrow Transportation Co. v. Southern Railway Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed. 2d 52 (1963), which had held that Congress had in the ICC Act vested exclusive power in the ICC to suspend rates pending final decision and had-deliberately extinguished judicial power to grant this relief; the district court lacked jurisdiction to grant an injunction. It seems apparent that the case at bar differs from the so-called SCRAP decision in that the Helium Act does not vest the Secretary with the same kind of regulatory authority as was present in the SCRAP case. The holding that NEPA did not subvert the power of the Interstate Commerce Commission was not surprising since the Commission is a ^•-,j^^« A^&' *- '.-l'i^lf .. _ , _ . . , . . . . , . . . , c , i > . . . in •t.-im.. ... i . . i . . . . . - u.i-.»nu«..ipiyHit M iW. . y . t B^MW, i > , , l w i.. u.i . , f ^ . i . . - , . j i u m v r " " ^ ' • -"•- •'-""•'-•- , „..... - , .-, i - • . ^ . . . • • . . • ^ • • i k ^ . N ^ ..-, . w , |
