Plaintiff and plaintiff-intervenors have additionally shown that they will be irreparably injured if a preliminary injunction is not issued. If a preliminary injunction is not issued and the DOE is allowed to proceed with its test phase, "the DOE will be able to introduce radioactive waste which may become unretrievable by reason of collapse of the underground facility, impending collapse, or loss of required clearance, before a final order can issue." Plaintiff's Motion for Preliminary Injunction; Parker Affidavit paras. 31, 44-45, 47; Fernandez Affidavit paras. 9, 21, 22. This further constitutes irreparable injury because Congress would not be able to act under the same circumstances as when the WIPP site was under a previous withdrawal which expressly stated that no hazardous waste could be stored at the site until Congress makes a determination to permanently withdraw the site for such purpose. See National Wildlife Federation v. Watt, 571 F.Supp. 1145, 1159 (D.D.C. 1983).
Interests of Third Parties/Public Interest
Finally, plaintiff and plaintiff-intervenors have also shown that interests of third parties will not be harmed; and that it is in the strong interest of the public to issue an injunction.
Defendants argue that the DOE will be harmed by the entering of a preliminary injunction. Defendants also argue that an injunction is against the public's interest. Specifically, defendants state that to date over one billion dollars have been spent on the WIPP project and an additional thirteen million dollars will be expended monthly in order to maintain the WIPP site. Transcript, pp. 46-47. Defendant's argument does not convince the Court because it is uncontested that the same amount of money will be expended on the WIPP project regardless of whether the test phase goes forward. Moreover, as the court stated in a similar case involving the Secretary of the Interior's proposed action under FLPMA, there is a strong "public interest in diplomatic resolution of constitutional impasses between the Congress and the Executive." National Wildlife Federation v. Watt, 571 F.Supp. 1145, 1159 (D.D.C. 1983)., The court in Watt emphasized that "if unrestrained, [the Secretary of the Interior] could alter rights or permit damage to the land in a way that confronted the courts with a fait accompli before they could resolve the impasse." Id. Here there is a similar public interest in ensuring that Congress is able to exercise its constitutional power to permanently withdraw public lands, without being confronted with a situation where the Secretary of the Interior has effectively precluded it from so doing.
For all of the foregoing reasons, the Court finds that plaintiff's and plaintiff-intervenors motion for a preliminary injunction should be granted. Under the facts of this case, the Court will not require the plaintiff to post a bond. An appropriate order has been filed.
JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE