The opinion of the court was delivered by: FRANKEL
Plaintiffs seek declaratory and injunctive relief against alleged violations of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq. (1970) ("NEPA"), in the procedures attendant upon abandonments of rail lines under the jurisdiction of the Interstate Commerce Commission. The plaintiffs are an array of public-interest corporations and associations, business corporations, and individuals variously interested in continued rail service, the quality of the air they breathe, and the quality of their environment more generally. They invoke the jurisdiction of this court under an array of statutes only some of which need be mentioned, as they are in the margin.
In a complaint amended speedily during the pendency of motions now to be decided, the plaintiffs seek to maintain the proceeding as a class action under Fed. R. Civ. P. 23(b)(2), alleging that they can and do represent
"those adversely affected by the failure of defendants to carry out their statutory duties under the National Environmental Policy Act * * * with regard to the proposed abandonment of rail lines in the Northeast and in the United States and in the performance of their administrative duties under the law, particularly as they relate to restructuring of railroads in the Northeast, and generally those citizens and residents of the United States who are or who will be injured by the abandonment of rail service and rail lines in particular states of the United States in which such abandonments are or may be proposed by the carriers and approved by the Interstate Commerce Commission without compliance with the law aforesaid."
Defendants are the ICC, its Chairman, and, unimportantly for present (and probably all) purposes of this case, the Administrator of the Environmental Protection Agency.
Plaintiffs have moved for a temporary injunction. Simply but sufficiently stated for introductory purposes, their prayer is that the ICC be enjoined pendente lite from going forward with proposed rail abandonment proceedings unless a draft environmental impact statement has been prepared and circulated by the Commission staff prior to any hearings as required, according to plaintiffs, by § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C).
According to the complaint and essentially undisputed portions of the motion papers, there are now pending, in the northeast and elsewhere across the country, a number of proceedings and proposed proceedings under 49 U.S.C. § 1(18)-(20) (1970) wherein the ICC is asked to approve abandonment of all or portions of lines of railroads or the operation thereof. Such abandonments, if allowed, will or may in specific cases have environmental impacts of varying kinds and degrees, most importantly perhaps on air quality because of the increased pollution produced by increased truck and auto traffic. In addition, though less significantly for our immediate concerns, plaintiffs charge that the ICC is considering individual abandonment proposals in isolation from each other and that the failure to consider effects "on the rail transit system as a whole is in violation of national environmental policy and * * * national transportation policy."
Of direct interest at the moment is plaintiffs' claim of non-compliance with NEPA § 102(2)(C), which provides:
"The Congress authorizes and directs that, to the fullest extent possible * * * (2) all agencies of the Federal Government shall --
"(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on --
"(i) the environmental impact of the proposed action,
"(ii) any adverse environmental effects which cannot be avoided should the ...