of an impact statement in conjunction with "major Federal actions significantly affecting the quality of the human environment." It is conceded that no impact statement has been prepared to accompany the April 24 order extending the 2.5 per cent surcharge until November 30. Thus the Commission stands in violation of NEPA unless it can demonstrate either (a) that the April 24 order is not a "major Federal action" or (b) that the April 24 order does not "significantly [affect] the quality of the human environment." We conclude that the Commission has failed to prove the truth of either of these propositions.
The Commission seems to take the position that temporary rate increases are not major federal actions because they must be decided upon quickly and do not lend themselves to the sort of reflective deliberation which NEPA requires. Cf. Cohen v. Price Commission, S.D.N.Y., 337 F.Supp. 1236 (1972); Port of New York Authority v. United States, supra. It seems clear, however, that these considerations are not relevant to the importance of the action undertaken. The Commission's position appears to rest on the non sequitur that because an action is taken quickly it is therefore unimportant. Yet it hardly requires argument to demonstrate that some of the most important federal actions in our history have also been taken with great alacrity. To the extent that the need for speed is relevant at all, it goes not to the importance of the federal action, but to the provision in NEPA which requires compliance only "to the fullest extent possible." See 42 U.S.C. § 4332.
But if the Commission wishes to argue from the "fullest extent possible" clause, it bears a much heavier burden of proof-a burden which it has not begun to meet. "We must stress as forcefully as possible that this language ['to the fullest extent possible'] does not provide an escape hatch for footdragging agencies; it does not make NEPA's procedural requirements somehow 'discretionary.' Congress did not intend the Act to be such a paper tiger. Indeed, the requirement of environmental consideration 'to the fullest extent possible' sets a high standard for the agencies, a standard which must be rigorously enforced by the reviewing courts." Calvert Cliffs' Coordinating Committee v. United States Atomic Energy Comm., supra, 146 U.S.App.D.C. at 38, 449 F.2d at 1114.
Nor is the Commission's order disqualified as a "major Federal action" because it is only temporary in nature, to be replaced on November 30 by a permanent rate structure.
This circuit was presented with a similar argument in Calvert Cliffs wherein the Atomic Energy Commission argued that an impact statement was unnecessary at the pre-operating stage of nuclear generator construction since the environmental impact would be fully considered at the licensing stage. The argument was unambiguously rejected. "Compliance [with NEPA demands] that environmental issues be considered at every important stage in the decision making process concerning a particular action-at every stage where an overall balancing of environmental and nonenvironmental factors is appropriate and where alterations might be made in the proposed action to minimize environmental costs." 146 U.S.App.D.C. at 42, 449 F.2d at 1118. (Emphasis added.) See also Greene County Planning Board v. FPC, 2 Cir., 455 F.2d 412 (1972); Environmental Defense Fund, Inc. v. Corps of Engineers, E.D.Ark., 325 F.Supp. 749, 756 (1971).
Similarly, the CEQ has made plain that the necessity of preparing an impact statement cannot be avoided or postponed by denominating a decision "temporary" or by breaking it down into minute component parts. "In considering what constitutes major [Federal] action significantly affecting the environment, agencies should bear in mind that the effect of many Federal decisions about a project or complex of projects can be individually limited but cumulatively considerable. This can occur when one or more agencies over a period of years puts into a project individually minor but collectively major resources, when one decision involving a limited amount of money is a precedent for action in much larger cases or represents a decision in principle about a future major course of action, or when several Government agencies individually make decisions about partial aspects of a major action." CEQ Guidelines at 7724.
In light of these interpretations of the statutory language, we think it clear beyond doubt that this order is a "major Federal action." If we understand the Commission's decision correctly, it affects virtually every piece of freight moved by rail in this country between now and November 30.
In New York City v. United States, supra, at three-judge District Court held that an order permitting abandonment of a few miles of track by a single railroad was a major federal action. In Named Individual Members of San Antonio Conservation Society v. Texas Highway Dept., 5 Cir., 446 F.2d 1013 (1971), the Court of Appeals held that the funding of a highway project through a single locality was major federal action. If these governmental decisions require an impact statement, then surely this decision-involving as it does almost every railroad in the country and hundreds of millions of dollars in freight charges-requires one as well.
The Commission refers us to a provision in its February 1 order wherein it states that "the involved general increase will have no significant adverse effect on * * * the quality of the human environment within the meaning of the Environmental Policy Act of 1969." On the basis of this single sentence the Commission asks us to believe that its order will not "significantly [affect] the quality of the human environment" within the meaning of NEPA and that hence an impact statement is not required.
It should be obvious that the NEPA requirements cannot be circumvented by so transparent a ruse. The main purpose of an impact statement is to force assessment of the environmental impact of a proposed action. Therefore, a statement is required whenever the action arguably will have an adverse environmental impact.
As the CEQ Guidelines state, "* * * actions may be localized in their impact, but if there is potential that the environment may be significantly affected, the statement is to be prepared. Proposed actions, the environmental impact of which is likely to be highly controversial, should be covered in all cases." 36 Fed.Reg. at 7724. (Emphasis added.)
Once the test is so understood, we think it clear that the danger of an adverse impact is sufficiently real to require a statement in this case. As the CEQ stated in its comments to the ICC on the draft statement, "Because recycling yields large environmental benefits, any policy which raises the price of wastes probably reduces the level of recycling from what it would have been without the price increase. This can have an adverse environmental effect. To suggest that there is no effect is simply not supported by general economic factors * * *." Indeed, the Commission itself now seems to concede that there is some danger of an environmental impact. In its draft impact statement it says "the imposition of, or failure to impose, a surcharge of 2.5 percent as a permanent part of the railroad rates applicable on freight services might have some impact on the environment." In light of this concession, we hold that, as the record presently appears, an environmental impact statement will be necessary in this case relating to the 2.5 per cent increase in rates.
V. Balancing of Equities
Defendant's final contention is that plaintiff has failed to demonstrate that the traditional equitable balancing weighs in favor of preliminary relief. Defendant argues that the railroads will suffer irreparable damage if the preliminary injunction is granted, that the plaintiff will not be injured if relief is delayed, and that the public interest would be harmed by enjoining the temporary surcharge.
It is, of course, true that plaintiff must meet the requirements outlined in Virginia Petroleum Jobbers Ass'n v. F.P.C., 104 U.S.App.D.C. 106, 259 F.2d 921 (1958), before preliminary relief will be afforded. But in light of the strong likelihood that plaintiff will prevail on the merits, it would require a powerful showing by the defendants that the other aspects of the test point in their favor before relief could be denied.
We conclude that no such showing has been made. While the public has an undoubted interest in the efficient operation of the railroads, the strongest sort of public interest weighs in favor of the preservation of the environment. This interest has been considered sufficient to support preliminary relief in countless cases even when there have been vital public concerns on the other side of the scale.
Nor is the balancing of relative harm nearly so one-sided as the railroads would have us believe. On the one hand, the damage done to the environment is likely to be irreparable. Surely it cannot be undone, as the railroads contend, by subsequent rebates to shippers, since once raw materials are unnecessarily extracted from the ground and used, they cannot be returned from whence they came. On the other hand, the damage done the railroads by granting the injunction, while clearly nonfrivolous, is not overwhelming. The surcharge will remain in effect only until November 30 in any event, so the revenue losses will be over a short period. Moreover, the railroads have been collecting the surcharge in the first place subject to the possibility that the money might have to be refunded if the Commission subsequently found the new rates unreasonable. And finally, the railroads' losses will be diminished significantly by allowing them to collect the surcharge on all nonrecyclable goods.
Accordingly, the preliminary relief requested by plaintiff is granted to the extent outlined above.
District Judge FLANNERY concurs in the result.