FINDINGS OF FACT AND CONCLUSIONS OF LAW
JOHN H. PRATT, District Judge.
Findings of Fact
Nature of the Action and Procedural History.
1. Plaintiffs are: the Commonwealth of Pennsylvania; the State of Texas; the Council of North Atlantic Shipping Associations, an unincorporated multi-employer bargaining association; the International Longshoremen's Association, AFL-CIO; and, the Delaware River Port Authority, a public corporation created to promote waterborne commerce in the Philadelphia area. Defendants are the Federal Maritime Commission (FMC) and Helen Delich Bentley in her official capacity as Chairman of the FMC.
2. This action is premised on alleged violations of the National Environmental Policy Act of 1969 (83 Stat. 852, 42 U.S.C. § 4321 et seq.) (NEPA). Plaintiffs allege that defendants have violated NEPA in several respects in connection with their handling of the so-called "Far East minibridge tariffs." Specifically, plaintiffs allege that the defendants failed to comply with NEPA when they accepted those tariffs for filing beginning in 1971 without making a determination as to whether such acceptance constituted a "major Federal action significantly affecting the quality of the human environment . . . ." (NEPA § 102(2)(C)). Plaintiffs also complain of an FMC order of February 10, 1975 in a pending complaint proceeding against the tariffs at issue (FMC Docket No. 73-38). In that order, the FMC asked the parties to submit information on environmental impact, expressing a belief that the Commission's decision at the conclusion of that proceeding would require an environmental impact statement. Plaintiffs contend that the FMC should have rejected the tariffs when it issued the order. Plaintiffs also allege that the request for environmental information constitutes an improper delegation of the preparation of an environmental impact statement. Plaintiffs further claim that the FMC is in violation of NEPA by failing to adopt general regulations and procedures pursuant to section 102(2)B of that Act. Plaintiffs request declaratory and injunctive relief.
3. Petitions for leave to intervene as parties-defendant were timely filed by a number of affected water and rail carriers
and by the Trans-Pacific Freight Conference Japan/Korea and its member lines. All of these petitions were granted. In addition the Interstate Commerce Commission (ICC) and the Pacific Westbound Conference requested and received leave to intervene as amici curiae.
4. On March 17, 1975, plaintiffs filed a motion for declaratory judgment and preliminary injunction, with supporting memorandum and affidavits. This motion was opposed by all defendants, intervenor-defendants, the ICC and the Pacific Westbound Conference. In addition, intervenor-defendants filed a motion to dismiss, with supporting memorandum and affidavits, which motion was joined in by defendants and the ICC. Plaintiffs filed a memorandum in reply to the memoranda filed by defendants and defendant-intervenors. Plaintiffs also moved for summary judgment. On April 9, 1975, oral argument was heard from all parties on the motion to dismiss and plaintiffs' motion for declaratory judgment and preliminary injunction. At the conclusion of that hearing, the Court entered an order (1) denying plaintiffs' motion for preliminary injunction and (2) entering judgment against plaintiffs and in favor of the defendants and defendant-intervenors and dismissing the action. Based upon the memoranda of the parties, the affidavits and the oral argument, these findings of fact and conclusions of law are issued pursuant to Rule 52(a) of the Federal Rules of Civil Procedure in support of that Order.
Description of Minibridge.
5. Minibridge is an intermodal transportation system offered jointly by rail and ocean carriers pursuant to joint tariffs, containing joint through rates, filed with both the FMC and the ICC. At issue here are "Far East minibridge" tariffs, under which cargo loaded in containers moves by water between Far East ports and West Coast ports and by rail between rail terminals in West Coast port cities and East and Gulf Coast port cities. There is also a minibridge movement between the West Coast and Europe (Euro-Cal minibridge), and between the Gulf Coast and Europe (Euro-Gulf minibridge).
6. Far East minibridge and Euro-Cal minibridge are economically related. Because there is an imbalance of export-import cargo between the Far East and the East and Gulf Coast areas, these two services complement one another by utilizing containers for the movement of revenue-generating cargo in the opposite directions. Plaintiffs allege violations of NEPA only in connection with Far East minibridge.
7. The Far East minibridge tariffs here involved were filed concurrently with the FMC and the ICC in accordance with the requirements of Section 18(b) of the Shipping Act, 1916 (46 U.S.C. § 817) and Section 6 of the Interstate Commerce Act (49 U.S.C. § 6). The first of these tariffs were filed on December 23, 1971 and became effective on January 24, 1972.
8. Shortly after the first Far East minibridge tariffs were filed, the Delaware River Port Authority (one of the plaintiffs here) filed a protest at the ICC asking the ICC to suspend the effectiveness of the tariffs under 49 U.S.C. § 15(7). The protestant alleged economic injury; no mention was made of environmental objections. The ICC refused to suspend the tariffs and permitted them to become effective. No subsequent complaint or protest has been filed at the ICC.
9. The FMC has no suspension power over foreign commerce tariffs and is obligated to accept tariffs tendered in the form and manner prescribed by Section 18(b) of the Shipping Act, 1916. Once the Far East minibridge tariffs were judged acceptable in terms of form, they were automatically entitled to take effect 30 days from the date of filing.
10. On July 9, 1973, approximately one and one-half years after the first Far East minibridge tariffs became effective, three of the plaintiffs herein (Council of North Atlantic Shipping Associations, International Longshoremen's Association, AFL-CIO, and Delaware River Port Authority), along with others, filed a complaint with the FMC alleging that Far East minibridge operations were unduly injuring the economic interests of certain East Coast ports, in violation of Sections 15-18 of the Shipping Act, 1916, and Section 8 of the Merchant Marine Act of 1920. That complaint contains no reference to NEPA and does not allege any adverse environmental impact from minibridge operations. The State of Texas and the Commonwealth of Pennsylvania, also plaintiffs here, subsequently intervened. That proceeding, designated FMC Docket No. 73-38, has moved through initial pleading and discovery stages and the presentation of complainants' case.
11. On January 15, 1975, complainants in FMC Docket No. 73-38 made for the first time an allegation that minibridge movements adversely affect the environment.
12. On February 10, 1975, the FMC issued an order in Docket No. 73-38 in which it requested all parties to submit information "regarding predictable environmental effects resulting from the eventual resolution of this proceeding." The FMC explained the basis for this request as follows:
The Commission believes that the nature of this proceeding renders any decision hereon a major federal action significantly affecting the quality of the human environment. Consequently, the broad scope of environmental factors involved warrant most careful consideration and evaluation before decision making is undertaken.
The FMC is presently receiving comments from the parties in response to its request.
13. On March 21, 1975, some of the intervenors herein petitioned the FMC to reconsider its order of February 10. That petition is still pending.
14. There is also pending at the FMC a proceeding involving the Euro-Gulf minibridge tariffs which is similar to Docket No. 73-38. (Docket Nos. 73-42, 73-61, 73-69, 74-4). The complaints there involved are based solely on economic injury and not on violations of NEPA or adverse environmental impact. On February 24, 1975, the FMC issued an order in that proceeding which is similar to its February 10 order in Docket 73-38.
15. On March 18, 1975, the FMC issued a "Notice of Proposed Rulemaking -- Policy and Procedures for Environmental Protection" (Docket No. 75-6), which was published in the "Federal Register" on March 24, 1975. The purpose of this proceeding is to establish general rules to ensure compliance by the agency with the requirements of NEPA. Comments on the proposed rules are due by May 8, 1975.
Other Judicial Actions.
16. On July 11, 1973 (two days after the filing of the complaint in FMC Docket No. 73-38), three of the plaintiffs here, along with others, filed a complaint in the U.S. District Court for the Eastern District of Pennsylvania (Civil Action 73-1560). Again, plaintiffs' arguments were based entirely on allegations that Far East minibridge resulted in undue economic injury to them, in violation of the Shipping Act, 1916, and the Merchant Marine Act (not NEPA). Plaintiffs' request for a preliminary injunction contended that injunctive relief was required to "protect" the FMC's primary jurisdiction. The Court denied plaintiffs' request. Plaintiffs' request for a permanent injunction is still pending.
17. On July 2, 1974, two of the plaintiffs here, along with others, filed a similar complaint against Euro-Gulf minibridge in the U.S. District Court for the Eastern District of Texas (No. 74-202-CA). No allegations were made with respect to NEPA. The FMC and the ICC participated as amici curiae, supporting defendants. A preliminary injunction was issued on January 27, 1975, but has been stayed by the U.S. Court of Appeals for the Fifth Circuit pending appeal.
Effects of Granting the Relief Requested.
18. The intervenor-defendants submitted substantial evidence that Far East minibridge provides an alternative form of transportation which is of benefit to shippers. This evidence was not rebutted by plaintiffs. Through affidavits of shippers, intervenor-defendants showed that Far East minibridge (a) affords a shorter transit time over all-water service, (b) makes possible lower prices to consumers by reducing the time period during which goods must be financed and by permitting maintenance of inventories at lower levels than would otherwise be possible, and (c) reduces damage to the cargo moved. If this Court grants the relief requested and ends Far East minibridge movements, these benefits would be lost.
19. The shipper affidavits demonstrate that if Far East minibridge were terminated, some traffic presently moving by Far East minibridge might be diverted to other markets. Other traffic might continue to move to the same destination, but by alternative means which could be either more expensive or more time-consuming. A number of shippers stated that loss of Far East minibridge would make them less competitive or put them out of foreign markets entirely.
20. Two of the water carriers which intervened in this proceeding submitted unrebutted evidence they would suffer substantial injury through termination of minibridge. Seatrain indicated that it would lose profits of about $7,700,000 per year. Sea-Land indicated it would lose gross revenues (after the railroads' portion of minibridge revenue and after drayage expenses) of approximately $51,000,000 per year.
21. Unrebutted evidence submitted by the rail carrier intervenors indicated they would lose revenues of approximately $26,000,000 per year. Moreover, two of the affected rail carriers are presently in bankruptcy; loss of revenues to these carriers would be particularly serious. Substantial investments by railroads in specialized equipment for handling minibridge traffic would be jeopardized.
22. East and Gulf Coast ports would be expected to benefit economically by a suspension of Far East minibridge movements, but West Coast ports through which the traffic presently moves would be injured by like amounts. Similarly, longshoremen working in East and Gulf Coast ports (represented by the ILA) would benefit to the detriment of longshoremen working in West Coast ports (represented by the International Longshoremen Warehousemen's Union).
23. Further, intervenor-defendants have also shown that minibridge has a favorable effect on the U.S. balance of payments and on employment in the United States. Both of these benefits would be lost if the Court granted the relief requested.
24. Plaintiffs' only allegations of adverse environmental impact are that the combined rail-water Far East minibridge movements, when compared to all-water movements, use more fuel and cause more air pollution. Plaintiffs submitted two affidavits in support of those allegations. Plaintiffs' alleged source of pollution is limited to the rail portion of minibridge service. The intervenor-defendants submitted an affidavit which challenges the assumptions contained in plaintiffs' affidavits and concludes that the energy and environmental impact associated with Far East minibridge is less than that of all-water movement. This factual dispute need not be resolved at this time, but it should be noted that rail Far East minibridge traffic is an extremely small portion of total rail traffic and that plaintiffs make no environmental claims with respect to Far East minibridge traffic which do not also apply to all rail traffic. It is also to be noted that the Euro-Cal minibridge, which plaintiffs do not seek to enjoin, would appear to have the same environmental consequences, if any, as Far East minibridge.
Conclusions of Law
This is a Court of limited jurisdiction. The Court's jurisdiction to grant the extraordinary relief requested in a motion for a preliminary injunction is governed by the factors set forth by the Court of Appeals for the D.C. Circuit in Virginia Petroleum Jobbers Association v. Federal Power Commission, 104 U.S.App.D.C. 106, 110, 259 F.2d 921, 925 (1958):
(a) Has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal?
(b) Has the petitioner shown that without such relief, it will be irreparably injured?
(c) Would the issuance of a stay substantially harm other parties interested in the proceeding?