Students Challenging Regulatory Agency Procedures (SCRAP), a group of five law students from The George Washington Law School, brought suit to complain about a nationwide railroad freight rate increase approved by the Interstate Commerce Commission (ICC). SCRAP alleged that the ICC violated the National Environmental Policy Act (NEPA) by approving a 20 percent rate increase and a subsequent 2.5 percent rate increase which, according to SCRAP, discriminated against the movement of recyclable materials by favoring the movement of raw materials. The primary issue in the case was whether the law students had standing to sue, which requires the plaintiffs to demonstrate that they suffered a concrete injury. Writing for a 5-3 Supreme Court, Justice Potter Stewart concluded that the allegations in the complaint demonstrated that the members of SCRAP would indeed be injured by the freight rate increase. He accepted SCRAP’s claim that each member “‘[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.” Justice Harry Blackmun went even further in his concurrence, stating that he “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.”
This case is activist because the Court engages in judicial imperialism that expands the power of the judiciary beyond its constitutional limits. Because the Founders understood that the political process is the proper avenue for citizens seeking broad policy reform, the Constitution restrains the Court from issuing advisory opinions or making pure policy judgments by limiting the Court's jurisdiction in Art. III, Section 2 to “cases” and “controversies.” As such, federal courts may only make judgments based on specific facts as they apply to specific parties, and, in the absence of an actual case or controversy, they are not permitted to decide the merits of the case. In determining whether a lawsuit involves an actual case or controversy, the Court relies upon the doctrine of “standing,” which requires plaintiffs to allege actual concrete injury particular to the plaintiffs themselves, which injury was caused by the defendant, and which injury could be remedied by the court in the case. The particularized injury requirement prevents individuals who, for example, share an injury with all other taxpayers who object to the policy behind a particular piece of legislation from challenging that legislation in court, and instead leaves the aggrieved citizen with the option of pursuing a remedy to the perceived problem from the political branches. The Supreme Court here, however, disregards its constitutional limitations and allows the plaintiffs—who allege no personal injury beyond that felt by every American citizen living under the decisions of the government—to bring suit to challenge the railroad freight policies of the United States and the ICC. It is a stretch to say that the members of SCRAP suffered an injury as a result of the rate increases simply because they use the natural resources that are open to use by the general public, and because those resources may be harmed by government policies that could discourage recycling. Given the lack of specific injury to the plaintiffs and the number of hypothetical assumptions involved in the plaintiffs’ complaint, the Court stepped beyond its authorization to hear “cases” and “controversies” in order to make a judgment on a government policy which the plaintiffs simply regarded as undesirable.