for over two years after all four cases were filed to finally raise the point. Defendant Hennepin suggests the plaintiffs made a tactical decision that it would likely be easier to defeat the four cases individually than to attack them in consolidated litigation. Considering these factors and the failure of the plaintiffs to refer to any case which effectively advances their contention, the court concludes that the Commission committed no reversible error. It may have been more desirable for the Commission to have considered in the case sub judice, (343 I.C.C. at 419), the cumulative impact. But in our review, we cannot say that such an omission was so arbitrary and capricious to require the decision to be annulled.
Was the Decision Adequately Supported by a Statement of the Findings and Conclusions, and Reasons Therefor?
The plaintiffs contend that the Commission's decision is not adequately supported by a statement of its findings, conclusions and reasons therefor. Specifically, plaintiffs argue that because the Commission's decision is a 'clear reversal' of the prior I.C.C. policy of protecting existing carriers from new competition unless the carriers are not adequately serving a region, the reasons given for the Commission's decision do not sufficiently explain this 'reversal' of prior policy.
This contention is reiteration of plaintiffs' previously discussed disagreement with the Commission's application of Nashua to this decision. For the reasons we have stated, we have determined that the adequacy of existing service is but one of many factors which are to be considered by the Commission.
The National Environmental Policy Act (NEPA) Question
Following the issuance of the Commission's report and order of this matter in May, 1973, three of the plaintiffs (American Commercial, Dixie, and Union Mechling) raised for the first time in their petitions for reconsideration of the Commission's decision the point that the I.C.C. had erred in deciding that its decision was not a 'major Federal action(s) significantly affecting the quality of the human environment' within the meaning of the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. §§ 4331 et seq. (343 I.C.C. at 431.) The Commission's threshold determination that its decision was not governed by this Act meant that it was therefore unnecessary for the Commission to prepare an environmental impact statement as § 102(2)(C), 42 U.S.C. § 4332(2)(C) of NEPA requires of all federal agencies where the action is one which will significantly affect the quality of the human environment. Plaintiffs' argument appears to be an 'after thought.'
At the outset, it should be noted that this court's scope of review is essentially the same review which governs our review of the actual merits of the Division's report. This court upon review of the agency's threshold determination of the necessity of a NEPA statement must examine the facts to determine whether the decision was arbitrary, capricious, or an abuse of discretion, and decide whether the necessary procedural requirements were followed and then determine do novo 'all relevant questions of law.' Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971); Hanly v. Kleindienst, 471 F.2d 823, 829 (2d Cir. 1972) cert. denied 412 U.S. 908, 93 S. Ct. 2290, 36 L. Ed. 2d 974 (1973).
In its order denying the petitions for reconsideration, the Commission expanded on the reasons for its decision that a NEPA statement was not required: (1) the Hennepin grant would not increase fuel consumption or commercial activity because the traffic will still require transportation (often by the plaintiffs); and (2) the denial of the application by Hennepin would have an adverse environmental impact inasmuch as (a) Hennepin would more likely be compelled to operate tows on the Mississippi at less than peak capacity, thereby wasting fuel, and (b) during the times when the barge shortage is acute, shippers would be pressed to use more polluting forms of transportation (motor trucks) to move their goods.
Two relevant factors which an agency should normally consider in deciding whether a NEPA statement is required are: '(1) the extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area affected by (the decision), and (2) the absolute quantitative adverse environmental effects of the action itself, including the cumulative harm that results from its contribution to existing adverse conditions or uses in the affected area.' See Hanly v. Kleindienst, supra, 471 F.2d at 83-831. Applying these two considerations to the case, the Commission's decision that an environmental impact statement is not necessary appears justified. The grant of authority to Hennepin will not enable that carrier to travel on any rivers upon which it does not now travel as an unregulated carrier. As previously noted, the certificate here addresses regulated water traffic, which all parties concede constitutes no more than 4% Of the totality of tonnage moved on our inland waterways. Rather than serving new waterways, Hennepin merely proposed to serve the same waterways more efficiently as a regulated, as well as an unregulated carrier. It is difficult to imagine how this grant which would enable Hennepin to more promptly and efficiently fill out tows, thereby conserving gasoline, could be viewed as detrimental to our environment in a time when the nation is seeking any new way in which to utilize more efficiently its energy resources.
As pointed out in the foregoing opinion, the findings of the Commission are supported by substantial evidence.
An appropriate order will be entered.