(1972); National Helium Corp. v. Morton, 455 F.2d at 654-55; Scanwell Laboratories v. Shaffer, 137 U.S. App. D.C. 371, 424 F.2d 859 (1970).
3. The Interstate Commerce Commission's procedures for preparing draft and final environmental impact statements, 49 C.F.R. §§ 1100.250 et seq., violate the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq., and do not conform with the Guidelines of the CEQ, 40 C.F.R. §§ 1500 et seq., in that they do not provide for the preparation of draft environmental impact statements prior to public hearings, they call upon private applicants to provide the analysis and factual basis for the Commission's impact statements, and they do not provide a procedural foundation for the Commission's preparation of its own, independent and comprehensive, draft environmental impact statement to be available for informed public comment prior to required public hearings.
4. The Interstate Commerce Commission has unlawfully failed to promulgate valid regulations or procedures for the preparation of environmental impact statements, as required by 42 U.S.C. § 4332 and recommended in 40 C.F.R.§ 1500 et seq., despite the clear mandate of judicial decisions. Harlem Valley Transportation Assn. v. Stafford, 500 F.2d 328 (2d Cir. 1974); and Greene County Planning Board v. FPC, 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849, 34 L. Ed. 2d 90, 93 S. Ct. 56 (1972).
5. Despite the possibly important and controversial issues relating to the scope and extent of environmental impact raised in Consolidated ICC Finance Docket Nos. 27620 and 27621, the Administrative Law Judge of the Commission directed that the parties submit a "proposed draft environmental impact statement" limited in scope. The Commission then issued a draft impact statement which, in its substantial adoption in often verbatim terms of Amoskeag Company's statement, was seemingly devoid of the Commission's own comprehensive and independent analysis in violation of NEPA, 42 U.S.C. § 4332 and contrary to the CEQ Guidelines, 40 C.F.R. §§ 1500 et seq. Impact statements developed in this manner would not provide, as NEPA requires, for full and fair agency development and consideration of the matters that are to be included in impact statements nor would it secure informed comments from interested public or private persons that, together with the draft impact statement, "shall accompany the proposal through the existing agency review processes" of which a public hearing is a part.
6. For the Interstate Commerce Commission to proceed with preparation of a final impact statement based on comments to the draft, and to proceed with public hearings required under the Interstate Commerce Act on ICC Finance Docket Nos. 27620 and 27621 on the basis of a draft environmental impact statement prepared under such improper procedures violates NEPA, 42 U.S.C. §§ 4321 et seq., and is contrary to the CEQ Guidelines, 40 C.F.R. §§ 1500 et seq.
7. The public interest and the balancing of harms warrant injunctive relief to prevent the ongoing violation of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., United States v. City and County of San Francisco, 310 U.S. 16, 30-32, 84 L. Ed. 1050, 60 S. Ct. 749 (1940); Jones v. District of Columbia Redevelopment Land Agency, 162 U.S. App. D.C. 366, 499 F.2d 502, 512 (1974).
Having considered plaintiff's Motion for Preliminary Injunction, the pleadings and papers filed in support thereof, the responses of defendant and the intervening defendant, and the oral presentation of all parties at argument held at February 14, 1975, it is in accordance with the Memorandum Opinion attached hereto, this 21st day of February 1975,
ORDERED AND ADJUDGED that defendants, their employees, agents and attorneys are hereby preliminarily enjoined pending trial herein, from holding hearings on the merits in Consolidated ICC Finance Docket Nos. 27620 and 27621, unless and until the defendants shall have
(1) established procedures for the preparation of an environmental impact statement complying with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4332(2)(B) and 4332(2)(C), and
(2) prepared and circulated and obtained the comments of appropriate public and private entities on a valid draft environmental impact statement compiled in accordance with such lawful procedures for the preparation of an environmental impact statement.
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