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NATURAL RESOURCES DEFENSE COUNCIL v. PENA

August 8, 1997

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Plaintiff,
v.
FEDERICO PENA, SECRETARY OF ENERGY, et al., Defendant.



The opinion of the court was delivered by: SPORKIN

 This matter is before the Court on Plaintiffs' Motion for a Preliminary Injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure (the "FRCP"). Plaintiffs seek to enjoin the Honorable Federico Pena, Secretary of the Department of Energy ("DOE"), and all those in active concert or participation with him, from the expenditure of any funds and any other action in furtherance of the construction or major upgrades in mission capability of the facilities and activities in thirteen on-going and proposed projects at various installations across the country, pending the Court's ruling on the merits of Plaintiffs' claim. The projects are part of the DOE's proposed Stockpile Stewardship and Management Program (the "SSM Program"), as outlined in a May 1995 document entitled The Stockpile Stewardship and Management Program. Plaintiffs allege that the DOE failed to perform an adequate programmatic environmental review of the proposed SSM Program (the "SSM PEIS"), as required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq. and the regulations promulgated thereunder by the Council on Environmental Quality (the "CEQ").

 The Court has considered the motion and the opposition thereto, and heard argument on June 17 and 24, 1997.

 BACKGROUND

 A. Changes in the Security Environment

 Since the United States first obtained nuclear weapons in the 1940's, the DOE and its predecessor agencies have been charged with the responsibility for providing the United States with such weapons and with ensuring that our nuclear weapons remain safe and reliable. DOE has traditionally assured the safety and reliability of our nuclear weapons in three ways: (1) by modernizing the arsenal, producing newly-designed weapons; (2) by conducting a formal surveillance program, known as the Stockpile Evaluation Program, to uncover safety and reliability problems with weapon components and subsystems; and (3) by conducting underground nuclear testing in conjunction with a vigorous research and development program.

 The substantial changes in U.S. national security policy since the end of the Cold War have substantially affected the traditional reliance on new-design weapon production and nuclear testing. The United States has entered into two strategic arms reduction treaties ("START") and has stopped developing and producing new-design nuclear weapons, resulting in a smaller and older inventory of such weapons. The government has also observed a moratorium on underground nuclear testing since 1992 and, since August 1995, has pursued a "zero-yield" Comprehensive Test Ban Treaty, which would ban nuclear weapons test explosions. *fn1" The President and Congress directed the DOE to develop a program for maintaining the United States' intellectual and technical competencies in nuclear weapons and for ensuring national confidence in the safety and reliability of the nuclear stockpile in this new security environment, wherein the DOE's traditional approach to ensuring the safety and reliability of the United States' nuclear weapons had changed dramatically. *fn2" DOE claims that it developed the SSM Program in response to the mandate established by the President and the Congress.

 B. The SSM Program and Development of the SSM PEIS

 DOE outlined the scope of its proposed SSM Program in a May 1995 document entitled The Stockpile Stewardship and Management Program (the "SSM Program Plan"). *fn3" The SSM Program Plan consists of five strategies: (1) enhanced experimental and computational capabilities; *fn4" (2) enhanced weapons and materials surveillance technologies; *fn5" (3) effective and efficient production complex; (4) long-range stockpile support; and (5) tritium production. *fn6" DOE stated that it has committed to preparing a PEIS for the SSM Program, and has provided information about its proposed schedule for the PEIS. *fn7"

 The DOE held a conference to discuss the framework and scope of the SSM PEIS with interested members of the public on May 19, 1995, and issued a Notice of Intent to prepare a PEIS for the SSM Program on June 14, 1995. In its Notice of Intent, the agency stated that the primary goal of stockpile management was the downsizing and consolidation of functions "to provide an effective and efficient production capability for the smaller stockpile." 60 Fed. Reg. at 31293. As for stockpile stewardship, the DOE described the goal as evaluating the enhanced experimental and computation capabilities that will be needed to assess and predict the consequences of problems related to the aging nuclear stockpile.

 DOE conducted public meetings with respect to the SSM PEIS between June 1995 and August 1995. During this process, the agency received more than 13,000 public comments. A.R. Doc. I-1336, Implementation Plan, at 4-1 to 4-2. The DOE then prepared the Implementation Plan for the SSM PEIS, in which it described the evolution of the NEPA process for the nuclear weapons complex; the purpose and need for the PEIS; and the scope of the PEIS. In February 1996, the DOE released the three-volume SSM Draft PEIS *fn8" and published a notice of its availability for public review and comment. The public comment period ran from March 8, 1996 to May 7, 1996.

 C. Elements of the SSM Draft PEIS

 The SSM Draft PEIS was based on the SSM Program Plan, supplemented by subsequent budget requests to Congress. In the document, the agency stated that the purposes of the SSM Program were to maintain the safety and reliability of the U.S. nuclear weapons stockpile and to maintain the core U.S. intellectual and technical competencies in nuclear weapons. On stockpile stewardship, the DOE considered one programmatic No Action alternative and five programmatic action alternatives: (1) science-based stockpile stewardship and management (providing enhanced experimental capabilities)(the "Preferred Programmatic" alternative); (2) locating stewardship functions at manufacturing facilities; (3) dismantling the nuclear weapons complex; (4) utilizing a two-laboratory system; and (5) using a non-science based stockpile stewardship approach (e.g. denuclearization, nuclear testing, and remanufacturing). The agency claimed that it eliminated all but the science-based stockpile stewardship approach from detailed study because the alternative approaches would not fulfill the purpose and need of the SSM Program. See A.R. Doc. I-1385, SSM DPEIS, Vol I, at 3-5 to 3-8. As to stockpile management, the DOE evaluated the no action alternative (the "Programmatic No Action" alternative) and the sites that the agency deemed reasonable for each of the stockpile management functions.

 In essence, the SSM Draft PEIS evaluated two alternatives for the SSM Program in detail: the Programmatic No Action alternative, and the Preferred Programmatic alternative.

 1. Programmatic No Action alternative

 Under the Programmatic No Action alternative, the DOE would fulfill its on-going responsibility to support the Nation's nuclear weapons stockpile and to maintain the safety and reliability of the nuclear weapons stockpile by continuing the activities currently associated with stockpile stewardship and management using existing facilities, including continuation of the research and development aspects of the SSM Program. On the stockpile stewardship program, this alternative calls for the DOE to continue using existing experimental facilities at the weapons laboratories. As to stockpile management, this alternative calls for the agency to retain its functions at their current locations. The agency would not consolidate the industrial base of the nuclear weapons complex or re-establish its desired plutonium pit fabrication capability under this alternative.

 2. Preferred Programmatic alternative

 The Preferred Programmatic alternative evaluated the likely programmatic impacts of what is now the proposed SSM Program. The DOE performed its analysis in a main volume and various appendices to the SSM PEIS. *fn9"

 This alternative consisted of three elements: (1) enhanced experimental capability; (2) adjustment (called "right sizing") of the industrial base; and (3) re-establishment of the manufacturing capability and capacity for pit components. On stockpile stewardship, the Preferred Programmatic alternative would establish experimental alternatives to nuclear testing as a means to ensure the reliability of the nuclear stockpile. This alternative calls for the DOE to enhance its scientific capabilities by constructing and operating three new major facilities: CFF at the Lawrence Livermore National Laboratory in California ("LLNL") for experiments involving the physics of nuclear weapons primaries; NIF at LLNL for experiments involving the physics of nuclear weapons primaries and secondaries; and the Atlas Facility at Los Alamos National Laboratory in New Mexico ("LANL") for experiments involving the physics of nuclear weapons primaries and secondaries. *fn10"

 On stockpile management under this alternative, the DOE proposed to: (1) down-size its Pantex Plant, which supports weapons assembly and disassembly; (2) locate non-nuclear component fabrication at a down-sized Kansas City Plant; (3) down-size the Oak River Reservation to support secondary and case component fabrication; and (4) re-establish capability and small capacity for pit component fabrication at LANL.

 C. Developing the SSM PEIS from the SSM Draft PEIS

 Between March and May 1996 the DOE conducted public hearings on the SSM Draft PEIS. Over 1400 people attended those hearings, and the DOE received almost 8000 comments on the SSM Draft PEIS. DOE released the four-volume Final PEIS on November 8, 1996 and published a notice of its availability in the Federal Register. 61 Fed. Reg. 58548 (November 15, 1996). The SSM PEIS made only minor changes to the SSM Draft PEIS. *fn11" The Secretary of Energy signed the Record of Decision for the SSM Program on December 19, 1996.

 D. Procedural History and Substance of the Immediate Matter

 Plaintiffs filed their motion for a preliminary injunction in this case on May 2, 1997, seeking to enjoin new SSM facilities, as well as activities or major upgrades to mission capability. They claimed that Defendant failed to perform an adequate programmatic environmental review of the SSM Program as required by NEPA by: (1) failing to address DOE's entire proposed SSM Program Plan in the SSM PEIS and by (2) failing to rigorously explore and objectively evaluate reasonable alternatives to its proposed SSM Program Plan. ...


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