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April 12, 1983

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

The opinion of the court was delivered by: PARKER



 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.


 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. Although Congress rejected the CSB proposal, it provided funds for the MX program and hinged their availability upon congressional approval of a basing mode.

 The Jackson Amendment established the procedures to be followed by the President in formulating a proposal and by the Congress in evaluating it. Specifically, the President is required to submit a report to the appropriate congressional committees which will then have 45 calendar days to reach a decision. Because of the urgency which apparently accompanies the need for a decision on the missile program, the amendment also imposes a limit on floor debate.

 As for the report itself, the amendment requires that it contain either a reaffirmation of the CSB plan submitted in November 1982 or an alternative proposal. The amendment further requires that the report present "detailed technical assessments" of CSB, alternative basing systems, and the different types of intercontinental ballistic missiles which might be utilized instead of the MX. In addition, the report will provide a "comparative detailed technical assessment of alternative programs," involving different missiles and deployment schemes


including acceleration of the Trident II program to provide target coverage equivalent of the MX missile system, enhancements and improvements to the Minuteman missile force, and development and deployment of a land-based missile system in deep underground basing, multiple protective shelters and closely spaced basing incorporating mobility and deception, a road mobile missile smaller than the MX and a common missile for land and sea deployment.

 Title V, § (7)(A)(iv), P.L. 97-377, 96 Stat. 1846-48 (1982). Section (7)(B) of the amendment provides that the report shall contain:


An assessment of the military capability of each alternative system or missile; an assessment of the survivability of each such system or missile against current and projected Soviet threats; an assessment of the projected cost of each such system or missile and possible upgrades thereof; an assessment of the impact each such system or missile might have on present and future arms control negotiations; an assessment of the geographic, geological, and other qualifications a site for each such system or missile would likely require; an assessment of the environmental impact each such system of missile would likely have and the identification of possible sites for each such system or missile. (emphasis added)

 Section (7)(C) provides that "the report required under [the Jackson Amendment] shall not be subject to the requirements of section 102(2)(C) of the [NEPA] relating to environmental impact statements." Section (7)(C) speaks only to the President's report as to a basing mode for the MX; once that report is submitted by the President and acted upon by Congress, the NEPA requirements would again apply in connection with the selection of an appropriate site for deployment of the missiles.

 For purposes of assessing the alternatives and selecting a preference, the President has established a bipartisan Commission on Strategic Forces chaired by retired General Brent Scowcroft. The Scowcroft Commission presented its report to the President yesterday recommending the use of existing Minuteman silos rather than CSB. See note 12 and accompanying text, infra. Issuance of the President's proposal to Congress is imminent.

 The plaintiffs commenced this action in mid-January seeking relief designed to remedy the defendants' alleged failure to comply with their NEPA obligations in presenting some of the MX basing proposals by requiring preparation of an EIS for use in selecting a basing mode. The plaintiffs propose that the Court direct the defendants to treat the LEIS as a draft statement and then engage in accelerated preparation of a final impact statement.


 The linchpin of the defendants' argument in support of dismissal on the ground of mootness is the effect of Congress' adoption of the Jackson Amendment. Given the general presumption against repeal by implication, the plaintiffs contend that, insofar as the defendants' NEPA obligations are concerned, the amendment provides a narrow exemption which addresses only the President's report to Congress. Reading the amendment in that fashion and noting the widely accepted policy favoring broad enforcement of NEPA's provisions, the plaintiffs argue that the amendment should not be interpreted as an immunization or erasure of prior NEPA violations. That is, the fact that Congress has suspended NEPA as to the President's impending report is not indicative of an intent to allow past infractions to go unremedied.

 The defendants assert, and the Court agrees, that the amendment moots any claim as to prior NEPA violations if they indeed occurred and renders this case nonjusticiable. *fn9" To read the amendment in any other manner would thwart Congress' intent in rejecting the November 1982 CSB proposal as presented and imposing a particular decision-making scheme upon the Executive Branch in its selection of a new basing proposal for the MX.

 Through the passage of legislation which governs the lawsuit, Congress can effectively moot a controversy notwithstanding its pendency before the courts. The Supreme Court concluded in Kremens v. Bartley, 431 U.S. 119, 126-27, 52 L. Ed. 2d 184, 97 S. Ct. 1709 (1977), for example, that the interim enactment of a Pennsylvania statute establishing due process safeguards precluding the involuntary commitment of teenagers to mental institutions, mooted claims of teenagers challenging the propriety of an involuntary commitment procedure for teenagers in that state. See also, Diffenderfer v. Central Baptist Church of Miami, Florida, Inc., 404 U.S. 412, 414-15, 30 L. Ed. 2d 567, 92 S. Ct. 574 (1972) (repeal of a Florida statute granting a church parking lot tax exemption which had been challenged under the Religion Clauses of the First Amendment).

 In a group of cases challenging the President's impoundment of federal highway funds and the Transportation Secretary's proposed allocation of the funds in 1980, several circuit courts held that intervening congressional action rendered moot the states' challenges to the President's actions. State of Vermont v. Goldschmidt, 638 F.2d 482 (2d Cir. 1980); State of New Mexico v. Goldschmidt, 629 F.2d 665 (10th Cir. 1980); State of Arkansas v. Goldschmidt, 627 F.2d 839 (8th Cir. 1980). Although the litigants in those cases had obtained preliminary injunctive relief ordering release of the impounded highway funds, the injunctions were stayed pending appeal. When Congress then took action which specifically provided for the distribution of the disputed funds, the appeal courts accordingly directed that each case be dismissed as moot.

 Plaintiffs seek to distinguish the Goldschmidt trilogy and limit the impact of the holdings to the particular set of facts presented. The funds in the Goldschmidt cases, as Congress noted, were not obligated at the time the new legislation was enacted since the injunctive relief had been stayed. In addressing the funds, Congress spoke directly to the Goldschmidt litigation. The plaintiffs argue that the legislation in the Goldschmidt cases was not applied retroactively to previously obligated funds and that the legislation here should be read similarly. The NEPA exemption provided by Congress, they assert, only addresses the President's report and therefore does not embrace the earlier NEPA violations.

 Plaintiffs' claims to the contrary notwithstanding, the Goldschmidt cases provide considerable guidance. The Jackson Amendment's three critical provisions operate to (1) reject the President's November 1982 CSB proposal, *fn10" (2) establish the process and deadlines governing formulation of a new proposal, and (3) establish guidelines for assessing the environmental aspects of that decision. With regard to the Goldschmidt litigation, the Eighth Circuit noted:


Congress has left little room for interpretation. The new Act plainly does at least three things. (1) It disapproves the President's deferral message . . . . The issue of the propriety of the deferral under the Impoundment Control Act, though still of legal interest has therefore disappeared from this case for all practical purposes. (2) The Act sets a new obligational ceiling for FY 1980 . . . for federal aid highways and highway safety construction programs, almost as low as the . . . ceiling that would have been imposed by the deferral. And (3) the Act specifies a formula for allocation of remaining FY 1980 funds.

 627 F.2d at 841. The subsequent congressional action eliminated any dispute as to the President's prior actions thus, relying upon Kremens v. Bartley, 431 U.S. at 128-29, the court concluded that the "new Act cuts the basis from under the controversy . . . making it purely academic and therefore moot." 627 F.2d at 842; accord State of Vermont v. Goldschmidt, 638 F.2d at 485; State of New Mexico v. Goldschmidt, 629 F.2d at 668-69. The same is true here.

 Although courts are reluctant to find repeal by implication based upon congressional appropriations action, Tennessee Valley Authority v. Hill, 437 U.S. 153, 189-90, 57 L. Ed. 2d 117, 98 S. Ct. 2279 (1978), "when Congress desires to suspend or repeal a statute in force, 'there can be no doubt that . . . it could accomplish its purpose by an amendment to an appropriation bill, or otherwise.'" United States v. Will, 449 U.S. 200, 222, 66 L. Ed. 2d 392, 101 S. Ct. 471 (1980), quoting United States v. Dickerson, 310 U.S. 554, 555, 84 L. Ed. 1356, 60 S. Ct. 1034 (1940). Balancing these competing concerns requires inquiry into congressional intent to determine whether the two statutory provisions at issue are contradictory. United States v. Will, 449 U.S. at 222; Demby v. Schweiker, 217 U.S. App. D.C. 1, 671 F.2d 507, 509 (D.C.Cir. 1981).

 To be sure, Congress can and does exempt projects from NEPA. Flint Ridge Development Co. v. Scenic Rivers Association of Oklahoma, 426 U.S. 776, 788, 49 L. Ed. 2d 205, 96 S. Ct. 2430 (1976); Izaak Walton League of American v. Marsh, 210 U.S. App. D.C. 233, 655 F.2d 346, 367-68 (D.C.Cir.), cert. denied sub nom. Atchison, Topeka and Santa Fe R.R., 454 U.S. 1092, 70 L. Ed. 2d 630, 102 S. Ct. 657 (1981). *fn11" Yet NEPA's "deliberate command" that federal agencies comply with the Act's requirements, Flint Ridge, 426 U.S. at 787, assures that courts will not regard congressional action as exemptive without strong supporting evidence. As the Court of Appeals for this Circuit has stated:


Given Congress' clearly expressed desire to ensure that all government actions are taken in accordance with NEPA, and its ability to expressly override the requirements of the Act . . . even when substantive legislation is involved, repeal by implication should be found only in the rarest of circumstances. Absent very strong evidence in the legislative history demonstrating a congressional desire to repeal NEPA, or a direct contradiction between that Act and the new legislation, claims under NEPA should be reviewed.

 Izaak Walton League of America, 655 F.2d at 367 (citations omitted).

 By rejecting the President's November 1982 CSB proposal but earmarking funds for the MX whose availability turns on congressional approval of a basing mode, Congress has set the stage for consideration anew. Tying access to the funds to approval of a basing mode, the Jackson Amendment clearly delineates the decision-making process to be incorporated in selecting an appropriate basing mode. Any basing selection which the Reagan Administration advances will necessarily be developed and then presented to Congress according to the amendment. Even if the Administration elects to resurrect CSB *fn12" the amendment specifically requires that the report reaffirm that position. Moreover, the sparse legislative history *fn13" does not support the plaintiffs, although it is fully consistent with the government's position that the Jackson Amendment completely proscribed the process by which the basing proposal would be constructed, presented, and reviewed. The clear import of that comprehensive legislative package is that Congress has refused all prior basing proposals and determined that it will not consider the matter until the President submits his report and indicates his preference therein. In any event, Congress has dictated the manner in which it is to receive and consider the new proposal as well as the composition of the proposal.

 The plaintiffs ascribe a much narrower intent to Congress' adoption of the Jackson Amendment, arguing that it is forward-looking and emphasizing that it provides a narrow NEPA exemption which embraces only the President's impending report. They point out that CSB is a viable proposal since it may be resubmitted and they assert that Congress acted under the assumption that the defendants had already complied with NEPA. They further note that although Congress explicitly suspended NEPA as to the compilation of the President's report, it could have exempted prior proposals in equally explicit language yet it did not elect to do so. In support of their interpretation, plaintiffs quote Senator Stevens, Chairman of the Senate Appropriations Defense Subcommittee, who responded to an inquiry of Senator Gary Hart one day after the Senate adopted the Jackson Amendment. Senator Hart, a member of the Armed Services Committee, questioned whether the amendment would limit the application of NEPA to "actual deployment" and Senator Stevens responded:


I would say that the intent, as I understand it, was to make certain that the President's recommendation to Congress is not under the NEPA requirement, but we did not attempt to remove anything else but for that language.

 128 Cong. Rec. S15166 (daily ed. December 16, 1982) (emphasis added).

 Although the plaintiffs place considerable reliance upon the Stevens quote, the context of the colloquy and the clear effect of the Jackson Amendment are fatal to the plaintiffs' interpretation. Senator Stevens' comment addressed an inquiry into whether the Jackson Amendment's NEPA exemption was indeed limited to the President's report or whether it might extend to the subsequent decision-making process for selection of an actual basing site once a mode is approved for deployment. As the remarks clearly indicate, the Senators who spoke to the issue were concerned with limiting the NEPA exemption to the President's report on basing modes rather than subsequent consideration of actual siting. Moreover, the Senators' remarks demonstrate an understanding that the process whereby the President's report would be compiled and submitted would encompass and subsume all further consideration as to a basing mode:


Mr. HART . . . may I ask the . . . chairman of the Armed Services Committee whether . . . [the Jackson Amendment] in any way restricts or limits the effects of the so-called NEPA process . . . on actual deployment?


Mr. TOWER . . . It does not and once a site is selected the provisions of NEPA would be fully complied with.


. . . [an inquiry by Senator Hart and Senator Steven's response as quoted above at p. 18] . . .


Mr. HART. Well, that is my understanding and in the process of looking at alternative basing modes that each of those does not have to comply with it.


Mr. STEVENS. That is right.


Mr. TOWER. Obviously, any mode recommended to Congress which it authorized would be subject to NEPA.

 128 Cong. Rec., supra at S15166. *fn14"

 In conclusion, Congress can suspend NEPA obligations and it has done so here. The manner in which it has responded to the President's November 1982 CSB proposal indicates its desire to redefine the process by which the President will develop and submit a proposal for the MX basing mode. That newly defined process effectively moots any claim that the plaintiffs may have had as to prior NEPA violations by the defendant since those transgressions, if they occurred, were engaged in with regard to matters which are no longer pending before Congress in their prior form. Congress has dictated the manner in which the MX basing proposal will be devised and considered and that process is exempt from NEPA.


 For the foregoing reasons, the defendants' motion to dismiss is granted and the complaint is dismissed with prejudice. An appropriate Order accompanies this Memorandum Opinion.

 Entered: April 12, 1983

 FINAL ORDER AND JUDGMENT - April 12, 1983, Filed

 Upon consideration of the Defendants' Motion to Dismiss, the opposition thereto, the argument of counsel heard on March 9, 1983, the entire record herein, and in accordance with the Memorandum Opinion filed on this date, it is this 12th day of April 1983,


 That the Defendants' Motion to Dismiss be, and hereby is, granted.

 That judgment is entered for the defendants and the Complaint herein is dismissed with prejudice.

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