United States v. Students Challenging Regulatory Agency Procedures

Last updated
United States v. Students Challenging Regulatory Agency Procedures (SCRAP)
Seal of the United States Supreme Court.svg
Argued February 28, 1973
Decided June 18, 1973
Full case nameUnited States, et al. v. Students Challenging Regulatory Agency Procedures (SCRAP), et al.
Citations412 U.S. 669 ( more )
93 S. Ct. 2405; 37 L. Ed. 2d 254; 1973 U.S. LEXIS 20; 5 ERC (BNA) 1449; 3 ELR 20536
Case history
PriorCase referred by United States District Court (D.C.) to Three Judge Court (unreported); preliminary injunction issued, 346 F. Supp. 189 (D.D.C. 1972); stay denied (Burger, C. J.), 409 U.S. 1207 (1972); probable jurisdiction noted, 409 U.S. 1073(1972)
Subsequent371 F. Supp. 1291 (D.D.C.) (on remand). Stay of injunction granted, 413 U.S. 917; preliminary injunction vacated and case remanded for reconsideration, 414 U.S. 1035; probable jurisdiction noted, 419 U.S. 822; Aberdeen and Rockfish Railroad et al. v. Students Challenging Regulatory Agency Procedures, 422 U.S. 289 (1975).
Article III "case or controversy" requirement of standing to sue met by members of SCRAP who alleged harm from the adverse effects of a 2.5 percent across-the-board nationwide railroad freight rate increase on materials capable of being recycled approved by the Interstate Commerce Commission (ICC). The Court also concluded that, at such an early stage in the ICC rate-making process, the preliminary injunction enjoining the collection of such freight rates must be set aside pending the preparation of an Environmental Impact Statement under the National Environmental Policy Act of 1969.
Court membership
Chief Justice
Warren E. Burger
Associate Justices
William O. Douglas  · William J. Brennan Jr.
Potter Stewart  · Byron White
Thurgood Marshall  · Harry Blackmun
Lewis F. Powell Jr.  · William Rehnquist
Case opinions
MajorityStewart, joined by Brennan, Blackmun; Douglas, Marshall (parts I, II); Burger, White, Rehnquist (parts I, III)
ConcurrenceBlackmun, joined by Brennan
DissentWhite, joined by Burger, Rehnquist
Powell took no part in the consideration or decision of the case.
Laws applied
U.S. Constitution, Article III, Section 2; National Environmental Policy Act, 42 U.S.C. 4321, et seq.; Interstate Commerce Act, 15 U.S.C. 7

United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973), was a landmark decision of the United States Supreme Court in which the Court held that the members of SCRAP - five law students from the George Washington University Law School - had standing to sue under Article III of the Constitution to challenge a nationwide railroad freight rate increase approved by the Interstate Commerce Commission (ICC). [1] SCRAP was the first full-court consideration of the American National Environmental Policy Act (NEPA). The Court also reversed the lower court decision that an injunction should be issued at the suspension stage of the ICC rate proceeding. The standing decision has retained its place as the high mark in the Court's standing jurisprudence.



Student movement

In the late 1960s, Ralph Nader, with the help of law and graduate students, sought to expose disquieting and sometimes corrupting relationships between industry and government regulatory agencies, whose duty it was to act in the public interest. Notorious among those relationships were the Interstate Commerce Commission (ICC) and United States railroads. Members of Congress, such as Senators Lee Metcalf (Montana) and Warren Magnuson (Washington), also had exposed the relationship and its harmful effects on American farmers, consumers and shippers. This public and congressional scrutiny occurred during the tumult of the Vietnam War, especially in Washington, D.C., and the fledgling environmental movement led, in Congress, by Senators Edmund Muskie (Maine) and Henry Jackson (Washington). Among the laws enacted was the National Environmental Policy Act, effective January 1, 1970.

Within The George Washington Law School, Professor John F. Banzhaf, to the consternation of traditionalists in legal education, encouraged students to identify problematic corporate/regulatory agency relationships and to engage and challenge them in practical, real terms on their own turf. The five law students (George Biondi, John Larouche, Neil Thomas Proto, Kenneth Perlman, and Peter Resselar) who formed Students Challenging Regulatory Agency Procedures (SCRAP) began their journey in December 1971 with the filing of a petition in the ICC that sought a one billion dollar refund for the failure of the Commission to comply with NEPA in approving a 20 percent rate increase (after NEPA's effective date) that SCRAP (and others) claimed discriminated against the movement of recyclable materials by favoring the movement of raw materials. In April and May 1972, SCRAP sued the United States and the ICC in the United States District Court for the District of Columbia for violating NEPA in approving the 20% increase (already being collected) and a new 2.5% rate increase on all freight transported by all of the nation's railroads. SCRAP then sought a preliminary injunction and a temporary injunction prior to the effective date of the 2.5% rate increase.


Under Article III, Section 2 of the Constitution, the federal courts' jurisdiction is limited to "cases...or controversies". Historically the court has determined that various requirements must be met to comply with the Article III jurisdictional threshold, without which federal courts cannot consider the case and the wrongdoing alleged by the plaintiff goes forward. Those requirements include, among others, "standing to sue". The Constitution does not identify what requirements must be met to ensure standing; the Supreme Court has developed the requirements over time through its case law. Just prior to SCRAP's decision to sue the United States and the ICC, the Supreme Court had, in Sierra Club v. Morton , denied standing to the Sierra Club in its environmental challenge to Disney’s effort (with the support of the Interior and Agriculture Departments) to build a hotel and ski resort in California. SCRAP’s claims of wrongdoing and harm to its members were not directed against a single project but against concrete but less discernible harm throughout the nation, including in the Washington, D.C. area where they lived and attended law school.

Lower court decisions

Under a special statute governing the ICC, a single District Court judge had to decide whether the complaint prepared and filed by the students should be transferred to a three-judge panel appointed by the Chief Judge of the United States Court of Appeals for the District of Columbia (Judge David L. Bazelon). A hearing was held before Judge Charles Richey on a temporary restraining order. The Environmental Defense Fund (EDF), acting with other environmental groups, sought to intervene by filing its own complaint. SCRAP objected to intervention and the new complaint. Judge Richey allowed EDF to intervene as a party but rejected its separate complaint. The nation's railroads also intervened as a matter of right. The ICC and the U.S. moved to dismiss SCRAP’s complaint for a lack of standing to sue. The ICC also claimed the court had no authority to interfere in this early stage (characterized as the "suspension stage") of the rate proceeding in part because the ICC retained jurisdiction although the increased rates could be collected by the railroads. Judge Richey denied the TRO, rejected the motion on standing and referred the case to a three-judge panel. His decision is unreported but is described in To A High Court, The Tumult and Choices that Led to United States v. SCRAP (below).

The three-judge panel consisted of Judges J. Skelly Wright, who presided, Thomas Flannery and Charles Robert Richey. [2] The United States, the ICC and the Railroads continued to challenge SCRAP's standing and contended that at this stage of the rate process (the suspension stage), a preliminary injunction could not be issued by the court. Following a hearing, the court, in an opinion by Judge Wright, concluded SCRAP had standing to sue. He also concluded that although Congress had vested exclusive jurisdiction in the ICC at the suspension stage of rate-making, Congress had granted the court jurisdiction to review ICC decisions when there was a violation of NEPA. Because harm was imminent, and an EIS not yet prepared, the nation's railroads were enjoined from collecting the rate increase on recyclable materials. The railroads and the ICC sought a stay of the injunction from Chief Justice Burger, who denied it. The court noted probable jurisdiction at the request of the United States, the ICC and the Nation's Railroads.

Opinion of the Court

Justice Potter Stewart wrote the opinion in three parts. In Part II (standing to sue), he concluded that the allegations in the complaint demonstrated that the individual members of SCRAP would be injured by the freight rate increase. Although the complaint contained various allegations of harm, Justice Stewart relied almost exclusively on SCRAP's allegation that each of its members "'[u]ses the forest, rivers, streams, mountains, and other natural resources of the Washington Metropolitan area and at his legal residence, for camping, hiking, fishing, sightseeing, and other recreational [and] aesthetic purposes,' and that these uses have been adversely affected by the increased freight rates…." He determined that although "attenuated," SCRAP's members had "alleged a specific and perceptible harm that distinguished them from other citizens who had not used the natural resources that were claimed to be affected." In Part III of the decision, Justice Stewart concluded that at this early stage of the rate increase review process (the suspension stage) the Court had no jurisdiction to issue a preliminary injunction. Although the 2.5 percent rate increase could go into effect (and the harm SCRAP alleged would occur), the ICC retained jurisdiction to further review the increase. The Court also noted the ICC's intention to comply with NEPA's requirements at a later stage in the proceedings.

Blackmun's concurring opinion

Justice Blackmun concluded that "in evaluating whether injunctive relief is warranted, I would not require that the appellees, in their individual capacities prove that they were injured. Rather, I would require only that appellees, as responsible and sincere representatives of environmental interests, show that the environment would be injured in fact and that such injury would be irreparable and substantial."

Marshall's opinion

Justice Marshall concurred in Justice Stewart's opinion on standing to sue but also was "convinced there is no lack of judicial power to issue a preliminary injunction against the interim surcharge... ." He believed that, "[p]roperly viewed...the injunction at issue in this case amounts to nothing more than a legitimate effort by the District Court, following the Commission’s refusal to suspend the surcharge, to maintain the status quo pending final determination of the legality of the Commission’s action at the suspension stage in light of the requirements of NEPA." He reasoned that, "This Court has consistently adhered to the view that it will find federal courts to have been deprived of their traditional power to stay orders under review only in the face of the clearest evidence of a congressional intent to do so…. No such clear intent is to be found in the Interstate Commerce Act…." The Commission also was not entitled to deference because it had special expertise in environmental matters. Consequently, "the grant of preliminary relief here involves no such interference with the Commission’s initial exercise of its particular expertise... [And] where does the Interstate Commerce Act make provision for an accounting and 'refund' to the people of our Nation for the irreversible ecological damage that results from a rate increase which discriminates unreasonably against recyclable materials and has been allowed to take effect without compliance with the procedural requirements of NEPA?" Citing Scripps-Howard Radio, Inc. v. FCC, 316 U.S. at 17, Justice Marshall opined that Congress "knew how to use apt words" if it wanted to deprive the District Court of its historic power to enjoin agency actions to preserve its jurisdiction.

Douglas's dissenting opinion

Justice Douglas supported SCRAP's standing for the same reason the majority opinion did. He also recognized the importance of SCRAP's allegation that its "members suffered environmental and economic injury as a result of the alleged increase, because the increase diminished the total amount of recycling in the United States, and made those products, which were in fact manufactured from waste materials after the rate increase, more expensive in the marketplace." He also examined in detail the relationship between the railroads’ rate increase and the manner in which – recognized by the President's Council on Environmental Quality and the Environmental Protection Agency – the basic rate structure and the increase discouraged the still fledgling efforts of state and local governments to recycle. Finally, he would have supported the District Court's reasoning that a preliminary injunction should issue to protect NEPA's purpose and thwart the ICC's "technical maneuvers" to avoid it.

White's dissenting opinion

Justice White would have dismissed the complaint because SCRAP lacked standing to sue: "To me, the alleged injuries are so remote, speculative, and insubstantial in fact that they fail to confer standing." SCRAP's allegation that the rate's effect of "retarding the use of recycled materials, causing further consumption of our forests and natural resources," became, Justice White concluded "no more concrete, real, or substantial when it is added that materials will cost more at the marketplace and that somehow the freight rate increase will increase air pollution." He compared the allegations to those of taxpayers in Massachusetts v. Mellon, 262 U.S. 447, 486-489 (1923), "or allegations that government decisions are offensive to reason or morals." Justice White also expressed his position that “failure of this country’s railroads even in their present anemic condition will guarantee that recyclable materials will stay where they are – far beyond the reach of recycling plants that as a consequence may not be built at all."

Subsequent developments

Effects of the decision

The case was remanded to the District Court. The ICC had effectively incorporated the 2.5 percent surcharge into a larger rate increase, including on recyclable materials. The ICC also prepared a draft Environmental Impact Statement (EIS) on the economic and environmental effect of the rate increase. On remand, the District Court found the EIS inadequate and issued a preliminary injunction. [3] Chief Justice Burger stayed the order. The full Court declined to vacate the order, vacated the preliminary injunction' and remanded the case for reconsideration. The District Court, on reconsideration, concluded the EIS was inadequate and directed the ICC to prepare another one and reconsider its decision. The Supreme Court (per Justice White) reversed the District Court in Aberdeen & Rockfish R. Co. v. SCRAP , 422 U.S. 289 (1975). Justice Douglas dissented. He would have affirmed the District court decision in large part because of the inadequacy of the EIS and the need to consider NEPA more than "a technical statute of administrative procedure." The United States, the ICC and the railroads made no further challenge to SCRAP's standing to sue.

Beginning in 1975, the Supreme Court of the United States significantly expanded the requirements necessary to meet Article III standing to sue. With a series of decisions in the 1980s, and an alteration in the Court's composition, the notion of separation of powers became the majority's guiding principle in determining standing to sue, often over contentious dissenting opinions.

Justice Scalia

In "The Doctrine of Standing as an Essential Element of the Separation of Powers," 17 Suffolk Law Review, 881 (1983), then-United States Court of Appeals Judge Antonin Scalia wrote that "the Court's SCRAP-era willingness to discern breathlessly broad congressional grants of standing will not endure." After becoming a member of the Supreme Court, Justice Scalia sought to further expand the requirements of standing to sue and to limit SCRAP's reach.

In Lujan v. National Wildlife Federation , 497 U.S. 871 (1990), Justice Scalia (for a 5-4 majority) concluded that the National Wildlife Federation did not have standing to sue to challenge the Interior Department's reclassification of some withdrawn public lands and the return of others to the public domain in violation of the Federal Land Policy and Management Act and NEPA. With specific reference to SCRAP and NWF's reliance on it, Justice Scalia concluded: "The SCRAP opinion, whose expansive expression of what would suffice...has never since been emulated by this Court... ." Dissenting, Justice Blackmun characterized Justice Scalia's plurality opinion as "what amounts to a slash-and-burn expedition through the law of environmental standing. In my view, '[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.'" In Lujan v. Defenders of Wildlife (1992), Justice Scalia (for the majority) concluded Defenders did not have standing to challenge a new Interior regulation under the Endangered Species Act (ESA), 1 U.S.C. §1533, 1536. In the opinion, Justice Scalia's criticism of Defenders’ reasoning to support standing to sue included a criticism of SCRAP as being an "ingenious exercise."

In Massachusetts v. EPA (2007), neither side had included reference to United States v. SCRAP in their briefs before the Supreme Court. Sua sponte, Justice Scalia raised SCRAP during Massachusetts' oral argument. The Court, through Justice Stevens, concluded that Massachusetts had standing to challenge EPA's failure to propose regulations to control greenhouse gas emissions from new motor vehicles. In response to Chief Justice Roberts' dissent concerning SCRAP, Justice Stevens affirmed the decision on standing in U.S. v. SCRAP. Stevens wrote that "Chief Justice Roberts did not, however, disavow [the] portion of Justice Stewart's opinion for the Court," where he expressed his reasoning to support the standing to sue of the law students. Justice Stevens also added that it is "quite wrong" to analogize Massachusetts' allegations of harm to a "lawyer's game."

Chief Justice Roberts' dissenting opinion was devoted largely to standing. With specific reference to United States v. SCRAP, he wrote that, "Over time, SCRAP became emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint. SCRAP made standing seem a lawyer's game, rather than a fundamental limitation ensuring that courts function as courts and not intrude on the politically accountable branches. Today’s decision is SCRAP for a new generation."

Related Research Articles

Interstate Commerce Commission

The Interstate Commerce Commission (ICC) was a regulatory agency in the United States created by the Interstate Commerce Act of 1887. The agency's original purpose was to regulate railroads to ensure fair rates, to eliminate rate discrimination, and to regulate other aspects of common carriers, including interstate bus lines and telephone companies. Congress expanded ICC authority to regulate other modes of commerce beginning in 1906. Throughout the 20th century several of ICC's authorities were transferred to other federal agencies. The ICC was abolished in 1995, and its remaining functions were transferred to the Surface Transportation Board.

Hepburn Act

The Hepburn Act is a 1906 United States federal law that gave the Interstate Commerce Commission (ICC) the power to set maximum railroad rates and extended its jurisdiction. This led to the discontinuation of free passes to loyal shippers. In addition, the ICC could view the railroads' financial records, a task simplified by standardized bookkeeping systems. For any railroad that resisted, the ICC's conditions would remain in effect until the outcome of legislation said otherwise. By the Hepburn Act, the ICC's authority was extended to cover bridges, terminals, ferries, railroad sleeping cars, express companies and oil pipelines.

The Mann–Elkins Act, also called the Railway Rate Act of 1910, was a United States federal law that strengthened the authority of the Interstate Commerce Commission (ICC) over railroad rates. The law also expanded the ICC's jurisdiction to include regulation of telephone, telegraph and wireless companies, and created a commerce court.

Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004), was a case decided by the U.S. Supreme Court. The lawsuit, originally filed as Newdow v. United States Congress, Elk Grove Unified School District, et al. in 2000, led to a 2002 ruling by the United States Court of Appeals for the Ninth Circuit that the words "under God" in the Pledge of Allegiance are an endorsement of religion and therefore violate the Establishment Clause of the First Amendment to the United States Constitution. After an initial decision striking the congressionally added "one nation under God" language, the superseding opinion on denial of rehearing en banc was more limited, holding that compelled recitation of the language by school teachers to students was invalid.

National Environmental Policy Act

The National Environmental Policy Act (NEPA) is a United States environmental law that promotes the enhancement of the environment and established the President's Council on Environmental Quality (CEQ). The law was enacted on January 1, 1970. To date, more than 100 nations around the world have enacted national environmental policies modeled after NEPA.

In the United States, the title of federal judge means a judge nominated by the president of the United States and confirmed by the United States Senate pursuant to the Appointments Clause in Article II of the United States Constitution.

Forum shopping is a colloquial term for the practice of litigants having their legal case heard in the court thought most likely to provide a favorable judgment. Some jurisdictions have, for example, become known as "plaintiff-friendly" and so have attracted litigation even when there is little or no connection between the legal issues and the jurisdiction in which they are to be litigated.

Surface Transportation Board Independent agency of the United States federal government

The Surface Transportation Board (STB) of the United States is a federal, bipartisan, independent adjudicatory board. The STB was established on January 1, 1996, to assume some of the regulatory functions that had been administered by the Interstate Commerce Commission when the ICC was abolished. Other ICC regulatory functions were either eliminated or transferred to the Federal Motor Carrier Safety Administration or Bureau of Transportation Statistics within DOT.

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), is a landmark decision by the Supreme Court of the United States in which the Court held that federal courts did not have the judicial power to create general federal common law when hearing state law claims under diversity jurisdiction. In reaching this holding, the Court overturned almost a century of federal civil procedure case law, and established the foundation of what remains the modern law of diversity jurisdiction as it applies to United States federal courts.

Ex parte Young, 209 U.S. 123 (1908), is a United States Supreme Court case that allows suits in federal courts for injunctions against officials acting on behalf of states of the union to proceed despite the State's sovereign immunity, when the State acted contrary to any federal law or contrary to the constitution.

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), was a United States Supreme Court case decided on June 12, 1992, in which the court held that a group of American wildlife conservation and other environmental organizations lacked standing to challenge regulations jointly issued by the U.S. Secretaries of the Interior and Commerce, regarding the geographic area to which a particular section of the Endangered Species Act of 1973 applied. The case arose over issues of US funding of development projects in Aswan, Egypt and Mahaweli, Sri Lanka that could harm endangered species in the affected areas. The government declared that the act did not apply to projects outside of the United States and Defenders of Wildlife sued.

Rapanos v. United States, 547 U.S. 715 (2006), was a United States Supreme Court case challenging federal jurisdiction to regulate isolated wetlands under the Clean Water Act. It was the first major environmental case heard by the newly appointed Chief Justice, John Roberts and Associate Justice, Samuel Alito. The Supreme Court heard the case on February 21, 2006 and issued a decision on June 19, 2006.

Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), is a 5-4 U.S. Supreme Court case in which twelve states and several cities of the United States, represented by James Milkey, brought suit against the Environmental Protection Agency (EPA) to force that federal agency to regulate carbon dioxide and other greenhouse gases (GHGs) as pollutants.

Sierra Club v. Morton, 405 U.S. 727 (1972), is a Supreme Court of the United States case on the issue of standing under the Administrative Procedure Act. The Court rejected a lawsuit by the Sierra Club seeking to block the development of a ski resort at Mineral King valley in the Sierra Nevada Mountains because the club had not alleged any injury.

United States v. Interstate Commerce Commission, 337 U.S. 426 (1949), is a decision of the Supreme Court of the United States addressing several issues, including the judicial standard of one party's inability to sue itself, the ability of the United States government specifically to sue federally affiliated departments, and the ability of courts to determine legislative intent. While this decision did not have many broad implications, it did offer a more "common-sense" understanding of determining what constitutes a justiciable controversy.

Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), was a United States Supreme Court case that provided the first elaboration of the doctrine of "Constitutional avoidance".

Arizona v. United States, 567 U.S. 387 (2012), was a United States Supreme Court case involving Arizona's SB 1070, a state law intended to increase the powers of local law enforcement that wishes to enforce federal immigration laws. The issue is whether the law usurps the federal government's authority to regulate immigration laws and enforcement. The Court ruled that sections 3, 5(C), and 6 of S. B. 1070 were preempted by federal law but left other parts of the law intact, including a provision that allowed law enforcement to investigate a person's immigration status.

Brown v. Plata, 563 U.S. 493 (2011), was a decision by the Supreme Court of the United States holding that a court-mandated population limit was necessary to remedy a violation of prisoners’ Eighth Amendment constitutional rights. Justice Kennedy filed the majority opinion of the 5 to 4 decision, affirming a decision by a three judge panel of the United States District Court for the Eastern and Northern Districts of California which had ordered California to reduce its prison population to 137.5% of design capacity within two years.

Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81 (2015), was a case in which the Supreme Court of the United States clarified procedures for removing a class action lawsuit from state court to federal court. The case involved a dispute about revenue from oil and gas leases in which the defendant filed a motion to remove the case from a state court in Kansas to the United States District Court for the District of Kansas. However, the plaintiff argued that the defendant's motion was defective because the defendant's notice of removal did not include evidence demonstrating that the amount in controversy satisfied the jurisdictional threshold. The United States District Court for the District of Kansas ultimately ruled the case should be returned to the state court, and the United States Court of Appeals for the Tenth Circuit declined to review the district court's decision.

Railway Labor Executives' Association v. Gibbons, 455 U.S. 457 (1982), was a U.S. Supreme Court case that affirmed distinction between the Commerce Clause and Bankruptcy Clause of the Enumerated powers, and held that legislation passed by Congress regarding bankruptcy must respect the uniformity requirement by not targeting a specific company.


  1. United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973) ("SCRAP").
  2. Students Challenging Regulatory Agency Procedures v. United States, 346F. Supp.189 ( D.D.C. 1972).
  3. Students Challenging Regulatory Agency Procedures v. United States, 371F. Supp.1291 (D.D.C.1974).

Sources and further reading