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FRIENDS OF THE EARTH v. WEINBERGER

April 12, 1983

FRIENDS OF THE EARTH, INC., et al., Plaintiffs,
v.
CASPAR W. WEINBERGER, Secretary of Defense, et al., Defendants



The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, UNITED STATES DISTRICT JUDGE

 The plaintiffs in this proceeding are several not-for-profit public interest groups concerned with the environmental consequences of the MX missile program. The term "MX" is an acronym for "missile experimental", a reference to the new generation of intercontinental ballistic missiles. Several of the organizations have a broad base as to both membership and area of concern. Others have memberships located in the particular geographic areas and regions which are potential sites for the basing and deployment of the MX missile. Each group has a demonstrated commitment to monitor and speak out on environmental issues such as the MX program. They are accordingly involved in a variety of activities including lobbying and publication efforts. *fn1"

 The plaintiffs allege in their complaint that Defense Secretary Caspar Weinberger and Air Force Secretary Verne Orr, the responsible Defense Department officials, have failed to comply with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. The gravamen of their claims is that the defendants failed to prepare an adequate environmental impact statement (EIS), a NEPA requirement, in connection with the decision in the Fall of 1982 to seek congressional approval of the closely spaced basing mode (CSB) as its preferred means of deployment for the MX. The plaintiffs seek judgment from this Court declaring that the defendants have violated NEPA and its implementing regulations. 40 C.F.R. § 1508.21. They also seek preliminary relief in the form of an order requiring the Secretaries of Defense and Air Force to prepare an environmental impact statement.

 At this point in the proceedings the parties have presented to the Court for determination several motions which materially affect the course of the litigation. The defendants have moved to dismiss, asserting that because of congressional action -- the Jackson Amendment (as discussed slip op. at 8-20 infra) -- plaintiffs' claims have been rendered moot, and their standing to pursue those claims has been eliminated, and the controversy has been transformed into a nonjusticiable political question. The motion to dismiss further alleges that the plaintiffs have failed to state a claim. The defendants have also filed a motion for summary judgment contending that the closely spaced basing proposal was not subject to NEPA but nevertheless their actions complied with NEPA.

 The plaintiffs have moved for partial summary judgment embracing six of the seven claims set forth in their complaint. Those claims arise out of the defendants' alleged failure to properly study and evaluate the environmental impact of the closely spaced basing proposal by failing to prepare an appropriate EIS which includes a comparison of CSB with other alternatives and considers the worst-case possibilities of placing the MX in the proposed mode. *fn2" The plaintiffs also contend that the defendants have failed to involve the public in the NEPA process as it pertains to the selection of a basing mode. *fn3"

 The Court has considered the various memoranda of the parties *fn4" and the oral argument of their counsel at a hearing recently held in this proceeding and concludes, as set forth below, that congressional action has rendered the plaintiffs' claims moot and that the case should be dismissed.

 BACKGROUND

 A. The Statutory Scheme

 Section 102(2)(C) of the National Environmental Policy Act, requires that agencies include a detailed environmental impact statement with "proposals for legislation and other major federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). To this end, regulations have been promulgated setting forth the process for NEPA compliance. 40 C.F.R. § 1508.21. When a detailed report or EIS on the environmental consequences of a proposal is appropriate, an agency is required to commence a process called "scoping", 40 C.F.R. § 1501.4(d). Scoping is intended to determine the specific issues which should be addressed. It is undertaken with input through notice, public comment and agency responses thereto. 40 C.F.R. § 1501.7.

 The NEPA process ultimately produces an impact statement which is included in the recommendation or proposal, 40 C.F.R. § 1502.5. The EIS itself is the product of several stages of preparation including compilation of a draft reflecting the results of the scoping process and a final impact statement which incorporates comments spawned by the draft and the agency's responses thereto. NEPA regulations further provide for the preparation of supplements to a draft or final EIS where the agency "makes substantial changes in the proposed action" or finds "significant new circumstances or information." 40 C.F.R. § 1502.9(c)(1). It should be noted, however, that supplements are prepared in the same manner as a draft EIS and do not need to incorporate the formal scoping process. 40 C.F.R. § 1506.8(b).

 B. The Relevant Facts

 While the government's consideration of the MX missile program reaches back to the mid-1970s, the facts which are critical to this proceeding may be briefly stated.

 Plaintiffs challenge defendants' efforts to comply with their strict NEPA obligations in connection with the recent CSB basing proposal for the MX missile. The public debate over the basing issue has yielded a variety of options. Among the alternatives considered in recent years are horizontal sheltering in bunkers, vertical sheltering in underground tubes, use of slopesided pools to provide water camouflage over silos, and horizontal concrete tube structures known as hybrid buried trench. *fn5" A considerable portion of the debate centers upon the survivability of a given basing concept; that is, whether the deployment of the missiles in a particular configuration will insure that a sufficient number of them can survive a nuclear exchange and remain operable to inflict defensive or retaliatory damage upon an aggressor.

 Last year, after a series of exchanges with Congress over the issue, the Reagan Administration settled upon closely spaced basing as its basing preference for the MX missile. This concept contemplated placement of approximately 100 missiles in individual superhardened silos which would also operate as launchers. The silos would be located close together such that all of the missiles would be placed in an area of approximately one by 14 miles. CSB proponents allege that the configuration would result in "fratricide" -- a phenomenon whereby the explosion of attacking warheads would theoretically disable or destroy other incoming missiles which followed while most of the MX missiles would remain protected through the use of reinforced or superhardened sheltering.

 Although formal EISs and supplements had been prepared by the Defense Department in connection with earlier basing proposals, the Administration decided to abandon that particular practice with its CSB plan. *fn6" Rather, in December 1982, the Department issued an abbreviated report known as a legislative environmental impact statement (LEIS). In order to integrate NEPA into the legislative process in a manner consistent with the time demands frequently imposed by Congress, the NEPA regulations provide for preparation of an LEIS in certain situations. *fn7" An LEIS was formulated in response to a Senate Armed Services Committee decision deleting funds for the MX missile from the Fiscal Year 1983 Department of Defense Authorization and directing the President to notify the Committee of his choice of basing modes by December 1, 1982.

 The President's CSB proposal was submitted to Congress in November 1982 in response to the congressional directive. That proposal was promptly rejected in an amendment to the Department of Defense Appropriations Act of 1983, passed as part of a continuing resolution statute signed into law on December 21, 1982. P.L. 97-377, 96 Stat. 1830 (1982). *fn8" The amendment, named after its sponsor Senator Henry Jackson, adopted a Senate Armed Services Committee recommendation and set forth a detailed response to the President's proposal. ...


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