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It is the fall of 1971. Richard Nixon is in the White House. The nation is still in turmoil over the war in Vietnam. The daily body count is diminishing but not the anger over the war’s conduct or the president’s intent on victory. He has moved the bombing into the north. The national dissonance also has preoccupied Congress—not only the war but also the need to recognize new values through law: dislodging corporate comfort before regulatory agencies, protecting consumers, enhancing the environment, and protecting the public’s health. Resistance is here as well. The established law firms hold tightly.
Within George Washington University, five law students decide to do a practical group project. They take on the nation’s Railroads and the oldest regulatory agency, the Interstate Commerce Commission. They want compliance with a new law, the National Environmental Policy Act (NEPA) and its application to nationwide freight rate increases approved after NEPA’s enactment. They want the unnecessary extraction of natural resources and the impediments to recycling analyzed and stopped. Their group’s name: Students Challenging Regulatory Agency Procedures, SCRAP. In a stunning “Midnight Surprise,” published in the New York Times on December 12, they petition for compliance with the law and a billion-dollar refund. “Law Students See Ecology Peril in I.C.C. Rail Freight Increases.” Read it and you can easily imagine the effect. It provokes what SCRAP expected: the legal prowess of the Commission and the Railroads and their nationally potent white shoe law firms. It is David versus Goliath. As Neil Thomas Proto, SCRAP’s chair, reveals in his book To a High Court: Five Bold Law Students Challenge Corporate Greed and Change the Law, the members of SCRAP find the tools and inner persistence⎯while full-time law students with part-time jobs⎯to meet the challenge. Months in duration.
SCRAP gets help from Capitol Hill veterans. The students also provoke historical tensions within industrial and environmental groups. Proto describes the maneuvers by both groups to undercut SCRAP. In May 1972, SCRAP sues the United States. Relying on court transcripts and Proto’s own contemporaneous notes and insight into personalities and arguments, the book gets to the heart of the battle: The Justice Department and the Railroads argue that SCRAP has no “standing to sue.” No right under the Constitution to be in court at all. Calling on the legendary legal skill of Covington & Burling and the authoritative power of the government, the Railroads and the United States seek to diminish SCRAP and dismiss the lawsuit. Following epic confrontations of wit and law before Judges Charles Richey and J. Skelly Wright, the lower court enjoins the collection of freight rates on recyclable materials by every Railroad in the nation and concludes that SCRAP has standing. The tension and unease seize the nation’s Railroads and the highest level of government.
The book’s story ends, and the Prologue begins in the Supreme Court of the United States. Erwin Griswold, the solicitor general and former dean of the Harvard Law School, uses all his skill and the force of history as he knows it to undo SCRAP’s victory on standing.
Join author Neil Thomas Proto and SCRAP in the Supreme Court, as the argument and the decision unfold.
Neil Thomas Proto’s public service and private practice in law includes forty-five years of experience in land use, environmental, and federal litigation, teaching at Yale University and Georgetown University, and writing and speaking on a broad range of cultural and legal matters. As a law student at The George Washington University, he chaired Students Challenging Regulatory Agency Procedures (SCRAP), which resulted in the first United States Supreme Court decision to consider the National Environmental Policy Act (1973).