"redirection of R&D efforts at the weapons laboratories away from the design of new weapons toward the development of appropriate technologies to address the needs of a safe, reliable, and smaller, aging stockpile." SSM PEIS, Vol. I, at 1-8. DOE maintains that such redirection would not involve significant new environmental impacts, apart from those occurring at existing facilities and analyzed as part of the Programmatic No Action alternative.
The dynamism and potential mutability of the SSM Program - conceded by Defendants - does indicate that the program must be made subject to a watchful eye. The Court gives great weight to Plaintiffs' environmental concerns. At the hearing on June 24, 1997, the government advised this Court that the DOE makes environmental site reports each year, and will re-evaluate this program every five years. The Court assumes that the non-classified portions of each such site report shall be made available to Plaintiffs and is confident that such a procedure will enable the well-regarded environmental groups that have brought this action to maintain a watchful eye on the implementation of the SSM Program.
B. Consideration of "Reasonable" Alternatives to the SSM Program Plan
Plaintiffs also claim that the SSM PEIS violated NEPA and CEQ regulations because it failed to rigorously and objectively evaluate reasonable alternatives to the SSM Program Plan or reasonable alternatives to meeting the purpose and need for the three "Enhanced Experimental Capabilities" (NIF, CFF and Atlas) proposed for construction in the SSM PEIS.
With respect to the SSM Program Plan, Plaintiffs argue that the DOE should have made a detailed analysis of at least seven alternatives proposed by commenters during the PEIS process.
At the hearing on June 24, 1997, Plaintiffs' counsel pressed for full consideration of the Consolidation
and the Remanufacturing Options,
at the very least. Plaintiffs object to "DOE's arbitrary construct that presents decision makers with an artificial choice between DOE's preferred configuration of facilities and no action." Plts. Memorandum of Points and Authorities in Support of Plts' Motion for a PI, p.30.
NEPA requires a federal agency to "study, develop and describe appropriate alternatives" to a proposed action. 42 U.S.C. § 4332(2)(C), (E). The CEQ regulations implementing the NEPA explain that the agency is obligated to "rigorously explore and objectively evaluate all reasonable alternatives" (emphasis added). 40 C.F.R. § 1502.14(a). A "proposed alternative is reasonable only if it will bring about the ends of the federal action" measured by whether it achieves the goals the agency sets out to achieve. Citizens Against Burlington, Inc. v. Busey, 290 U.S. App. D.C. 371, 938 F.2d 190, 195 (D.C. Cir.), cert. denied, 502 U.S. 994, 116 L. Ed. 2d 638, 112 S. Ct. 616 (1991), citing City of Angoon v. Hodel, 803 F.2d 1016, 1021-22 (9th Cir. 1986) ("When the purpose is to accomplish one thing, it makes no sense to consider the alternative ways by which another thing might be achieved.").
This Circuit has held that an agency's evaluation of its objectives is heavily influenced by the agency's consideration of "the views of Congress, expressed, to the extent that the agency can determine them, in the agency's statutory authorization to act, as well as in other congressional directives." Citizens Against Burlington, Inc., 938 F.2d at 196 (citing City of New York v. Department of Transportation, 715 F.2d 732, 743-45 (2d Cir. 1983). "When Congress has enacted legislation approving a specific project, the implementing agency's obligations to discuss alternatives in its [EIS] is relatively narrow." Izaak Walton League of America v. Marsh, 210 U.S. App. D.C. 233, 655 F.2d 346, 372 (D.C. Cir. 1981).
The DOE argues that only the Preferred Programmatic alternative was consistent with "its historical mission and . . . Congressional and Presidential mandates." Defendants' Memorandum of Points and Authorities in Opposition to Plts Motion for PI," p. 63. Defendants pointed out that the CEQ regulations implementing NEPA only require an agency to "briefly discuss" the reasons for eliminating potential alternatives "from detailed study." 40 C.F.R. § 1502.14(a).
The Court will not order that the DOE do full analyses of additional programmatic alternatives to the SSM Program. The DOE is entitled to some deference with respect to its internal decisions on which alternatives to the SSM Program were "reasonable" and required full analysis in the PEIS. What is more, the direction of the SSM Program is consistent with Presidential and Congressional mandates.
But more disclosure is in order, especially when such disclosure might be provided while the SSM Program progresses. Plaintiffs claim that, by not addressing additional alternatives to the SSM Program, the government has not fully ensured that its decision to adopt the SSM Program was appropriate. The Court notes that the government agreed at the hearing on June 24, 1997 to address Plaintiffs' specific questions with respect to the Consolidation and the Remanufacturing Options, and the Court expects that the government will respond to Plaintiffs' reasonable requests for more information on those programs within sixty days of the provision of written questions to the DOE by Plaintiffs.
II. Failure to Grant an Injunction Will Not Result in Irreparable Harm to the Environment
Plaintiffs argue that the government's failure to disclose and analyze the environmental impacts of various aspects of the SSM Program will result in irreparable harm to the environment. At the hearings on June 17 and 24, 1997, Plaintiffs made clear to the Court that their greatest concerns were: (1) DOE's proposal to transfer plutonium pit fabrication from the now defunctioning Rocky Flats Weapons Plant to the LANL; and (2) the construction of the NIF.
Nuclear weapons pit production involves the processing of substantial quantities of plutonium, a highly toxic nuclear explosive material. The environmental contamination caused by pit production at the Rocky Flats plant was severe enough to necessitate closing that plant in 1989. The proposal to transfer the Rocky Flats production capability to the LANL will increase both the number and types of pits LANL produces,
and the amount of radioactive and hazardous substances it handles. Plaintiffs express special concern that the SSM PEIS failed to adequately assess the possibility of fires or explosions, each of which could lead to the destructive release of plutonium isotopes to the surrounding environment at the proposed upgraded LANL pit production facility.
Plaintiffs describe the National Ignition Facility, or NIF, as "the world's biggest laser" and "a high energy laser the size of the Rose Bowl intended to achieve the ignition of microfusion reaction in the laboratory." See Plts. Memo of Points and Authorities in Support of Plts. Motion for a PI, p.9. The DOE's stated purpose for the construction of the NIF is to improve the agency's understanding of the physics of nuclear weapons secondaries by conducting high energy density weapons physics experiments and by demonstrating inertial fusion in the laboratory. In effect, the NIF would be one of a series of facilities that would provide the DOE with enhanced experimental capabilities for primary and secondary weapons physics.
Plaintiffs question whether the NIF is feasible or necessary, and express the concern that its construction might increase the risk of worldwide nuclear proliferation.
Plaintiffs' motion for a preliminary injunction against the plutonium pit fabrication program at LANL and the NIF must fail at this time. The DOE has looked carefully at each of these programs, and the Congress has done so as well.
The Court is not entirely satisfied with the disclosure that surrounds these programs. The Court will request that the DOE perform a fuller disclosure of the environmental, health and safety risks associated with the plutonium pit fabrication program at LANL and the NIF within a reasonable time after the issuance of this Memorandum Opinion. Such disclosure should be responsive to Plaintiffs' concerns, but need not hold up the implementation of either program.
III. The Public Interest - National Security vs. Environmental Protection
Plaintiffs argue that granting the preliminary injunction in this case would be in the public interest since no imminent danger to national security exists and the potential harms from the NEPA violations are serious. The essence of Plaintiffs' argument is that the SSM Program is a long-term project that can be safely deferred while the environmental concerns are addressed immediately. Plaintiffs claim that the NIF will not be available for ignition experiments until 2006 anyway.
Plaintiffs also claim that cost-overruns at the CMR Building will inevitably result in delays in that project as well.
In essence, Plaintiffs contend that any incremental risk to national security created by granting an injunction in this case would be greatly outweighed by the potential environmental gain associated with a fuller vetting of the SSM Program.
Defendants contend that any delay in the SSM Program could have serious national security implications. Secretary Pena stated that any delay in the SSM Program "may cause other countries to doubt or question the credibility of our Nation's nuclear deterrent" and, in such a situation, "rather than risk the credibility of the nuclear deterrence, there would be a significantly increased risk that the federal government would be forced to resume nuclear testing in order to ensure the safety and reliability of the stockpile." Pena Declaration, P 18; see, also, Secretary of Defense William S. Cohen Declaration, P 9. What is more, Defendants claim that "even a modest delay in implementing the SSM Program could have a serious impact in the short term." They contend that "an injunction would soon begin to harm the weapons' laboratories ability to certify stockpile safety and reliability." Declaration of C. Bruce Tarter, Director, LLNL.
Courts have accorded great weight to considerations of national security when balancing the interests and equities of the parties. See, e.g., Committee for Nuclear Responsibility v. Seaborg, 149 U.S. App. D.C. 393, 463 F.2d 796, 798 (D.C. Cir. 1971)(because of "assertions of potential harm to national security and foreign policy - assertions which [the court] obviously cannot appraise - and given the meager state of the record before us, we are constrained to refuse an injunction."). In a case similar to this one, the 7th Circuit credited the potential harm to the Navy and the national defense as being one of the most important factors to be weighed. Wisconsin v. Weinberger, 745 F.2d 412, 427 (7th Cir. 1984)("injunction's service to NEPA in preserving unbiased decision-making [on the remaining construction of a military project while the Navy completed a supplemental EIS] would be slight" and more important . . . the district court's failure to balance the weight of the alleged NEPA violation against the harm the injunction would cause the Navy and the country's defense"); see, also, Concerned about Trident, 180 U.S. App. D.C. 345, 555 F.2d 817, 831 (D.C. Cir. 1977).
In this case, the Court must balance two important competing interests in assessing the public interest. The national security interest here must be paramount. This Court is reluctant to override national security judgments on the viability of our nuclear program made by the Secretaries of Energy and Defense. While Plaintiffs argue that any national security vulnerability with respect to the SSM Program would be brief and would not occur until well into the future, any such vulnerability - and any future reduction in the credibility of our nuclear deterrent for even a brief period of time - would be unacceptable. This is an age when rogue nations and worldwide terrorist organizations may soon be able to gain access to nuclear weapons and attempt to use them to achieve nefarious goals. A nation with our responsibility for world leadership must be able to act quickly and effectively against all such threats. The Court cannot subjugate our nation's responsibility to provide leadership on nuclear matters on the basis of the claims made in this lawsuit. Any doubt over the credibility of our nuclear deterrent would create unacceptable risks in the event of a future crisis akin to the Cuban Missile Crisis. While the probability that such future crises might come to pass is not as great today as in the past, we must never ignore such a possibility. Although the sun shines today, dark and ominous clouds can emerge without much warning..
The Court recognizes fully that there have been enough accidents involving nuclear programs to make Plaintiffs' concerns over the environmental, health and safety issues in this case real. Indeed, recent press stories indicate that American citizens may have been exposed to excessive amounts of radiation in the nuclear tests of the 1950's. Environmentalists suggest that this could be responsible for cancers in as many as 75,000 people who were inadvertently exposed.
If this information is correct, the government must take all steps to prevent a recurrence of such contamination of the environment.
It is hoped that the annual provision of the site reports and the additional information to be provided to Plaintiffs will allow these and other fine groups to monitor the government's actions and ensure that any material environmental problems are addressed in a timely fashion.
Plaintiffs' motion for preliminary injunction will be denied. The government has assured the Court that the DOE will make annual site reports with respect to each facility involved in the SSM Program and will re-evaluate the program every five years. The Court assumes that the non-classified portion of each such site report will be made available to Plaintiffs to allow them to monitor the government's actions. The Court also expects that the government will adhere to its agreement to address Plaintiffs' reasonable and specific questions with respect to the Consolidation and Remanufacturing Options within sixty days of the provision of written questions by Plaintiffs.
The Court will order that the government perform a fuller disclosure of the environmental, health and safety risks associated with the plutonium pit fabrication program at the LANL and the NIF within a reasonable period of time after the issuance of this Memorandum Opinion. Such disclosure should be responsive to Plaintiffs' concerns, but need not hold up the implementation of either program.
An appropriate order is attached hereto.
Aug 8, 1997
United States District Judge
This matter is before the Court on Plaintiffs' Motion for a Preliminary Injunction. The Court has considered the motion and the opposition thereto and heard argument on June 17 and 24, 1997. For the reasons cited in the accompanying Memorandum Opinion, it is hereby
ORDERED that Plaintiffs' motion is denied in part and granted in part; and it is
FURTHER ORDERED that the government perform a fuller disclosure of the environmental, health and safety risks associated with the plutonium pit fabrication program at the Los Alamos National Laboratory in New Mexico and the National Ignition Facility at Lawrence Livermore National Laboratory in California. Such disclosure should be responsive to Plaintiffs' concerns, but need not hold up the implementation of either program. It shall be completed within sixty (60) days, or such other time as this Court may order; and it is
FURTHER ORDERED that the Court shall retain jurisdiction in this matter to ensure that this order is appropriately implemented.
Aug 8, 1997
United States District Judge