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August 18, 1998

FEDERICO PENA, et al., Defendants.

The opinion of the court was delivered by: SPORKIN


 This matter comes before the Court on Parties' Cross-Motions for Partial Summary Judgment. In Count II of the Complaint, Plaintiffs *fn1" allege that the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., requires the Department of Energy ("DOE" or "Department") to complete a Supplemental Programmatic Environmental Impact Statement ("Supplemental PEIS") for its Stockpile Stewardship and Management Program ("SSM" or "Stockpile Program")-- a program designed to ensure the safety and reliability of the nation's aging nuclear weapons. As part of the nuclear stockpile program, the Department proposed to re-establish plutonium pit production at the Los Alamos National Laboratory in New Mexico and to initiate the construction and operation of the National Ignition Facility ("NIF") at the Lawrence Livermore National Laboratory in California. Pursuant to NEPA and the regulations promulgated thereunder by the Council of Environmental Quality ("CEQ"), the Department performed a programmatic environmental review of the proposed Stockpile Program in 1996. Plaintiffs assert that since then, new information has come to light concerning the potential environmental hazards at Los Alamos and Livermore facilities. Given the new information, Plaintiffs contend that NEPA requires the Department to prepare a Supplemental PEIS to consider the changed circumstances and re-evaluate the two facilities' impact on the environment. Defendants assert that they have met their obligations under the law and that a Supplemental PEIS is not needed at this time. For the reasons set forth below, this Court concurs with the Government and accordingly denies Plaintiffs' Motion for Summary Judgment. With certain modifications to the Defendants' proposed order, the Court grants Defendants' Motion for Partial Summary Judgment and dismisses Plaintiffs' case without prejudice at this time.


 A. The Stockpile Program and Environmental Impact Statement.

 The Department of Energy is entrusted with safekeeping the nation's stockpile of aging nuclear weapons. After the Comprehensive Test Ban Treaty, the President and Congress directed the Department to develop a program for maintaining the safety and reliability of the country's nuclear stockpile without the use of underground nuclear testing and without the introduction of new nuclear weapons. In 1995-96, the Department responded to the mandate by creating the Stockpile Stewardship and Management Program, intended to oversee the production, maintenance, inspection, and dismantling of the nation's nuclear weapons stockpiles.

 As envisioned by DOE, the Stockpile Program consists of two main components: (1) stockpile stewardship and (2) stockpile management. Stockpile stewardship involves the research, design, development, and testing of nuclear weapons along with the assessment and certification of their safety and reliability. These activities are conducted by the Department at their various weapons laboratories-- including the Los Alamos National Laboratory in New Mexico and the Lawrence Livermore National Laboratory in California. Traditionally, DOE accomplished the task of stockpile stewardship through underground nuclear testing and the production of new-design nuclear weapons. With the Test Ban Treaty halting these activities, DOE determined that the existing basic capabilities of the weapons laboratories alone were insufficient to make up for the loss of nuclear testing. The Department felt the need for improved simulation and experimental capabilities in order to meet its mandate. Accordingly, as part of the SSM Program, the Department proposed the construction of the National Ignition Facility. The new facility would house an advanced laser capable of simulating fusion to study the effects of a nuclear explosion, and thus serve as a substitute for real testing. After considering four other sites, the Department chose to build the facility at the Lawrence Livermore National Laboratory in California.

 The second component of the SSM Program, stockpile management, involves the actual maintenance, refurbishment, surveillance, and dismantling of the country's remaining nuclear weapons. While the Test Ban Treaty ceased the development and manufacture of new-design weapons, DOE determined that it could not eliminate all of the manufacturing capabilities of its industrial base. The old weapons in stock would still need repair and replacement parts in order to function and serve as an effective deterrent. Specifically, the Department determined that production of plutonium pits--the explosive core of a nuclear weapon-- needed to be reinstated as part of the SSM Program. Traditionally, plutonium pits were manufactured at the Rocky Flats Plant near Denver, Colorado, but in 1992 it ceased production after a series of plutonium fires and in response to the change in national security policy. After considering alternative sites, the Department determined that production would be shifted to the Los Alamos National Laboratory and included the plans for production in the SSM Program.

 Before implementing SSM, the Department prepared a comprehensive environmental review of the program as required by NEPA. Under NEPA, if an agency recommends legislation or other federal action that significantly could affect the quality of the human environment, it must prepare an Environmental Impact Statement ("EIS") that evaluates all other reasonable alternatives. See NEPA § 4332 (2)(C)(ii). The Department proposed to conduct its environmental review in two phases: First, a programmatic review to assist in the decision of choosing suitable facilities; and second, a site-specific review under the assumption that the Department intended to implement its programmatic decisions.

 On June 4, 1995, the Department issued a Notice of Intent to prepare the Programmatic Environmental Impact Statement ("PEIS"). Over the next two months, the Department had numerous public meetings and reviewed over 13,000 public comments. In February 1996, DOE released its draft PEIS. The draft noted that the purpose of the SSM Program was to maintain the safety and reliability of U.S. nuclear weapons and to maintain core U.S. technical and other competencies in nuclear weapons. To further this purpose, the program called for: (1) enhanced experimental capability; (2) adjustment of the industrial base; and (3) re-establishment of the manufacturing capability and capacity for pit components.

 After a two month comment period, the Department released its Final PEIS and published it in the Federal Register. See 61 Fed. Reg. 58548 (November 15, 1996). On December 19, 1996, the Secretary of Energy signed the Record of Decision ("ROD") for the SSM Program. The ROD represented the final decision of the agency.

 B. Procedural History

 On May 2, 1997, Plaintiffs filed a Motion for Preliminary Injunction in this case seeking to enjoin construction of the new SSM facilities, as well as major upgrades to mission capability. In their Motion, Plaintiffs alleged that the Department had failed to perform an adequate programmatic environmental review of the SSM Program as required by NEPA because it: (1) failed to address DOE's entire proposed SSM Program Plan in the SSM PEIS; and (2) failed rigorously to explore and objectively evaluate reasonable alternatives to its proposed SSM Program Plan. On August 8, 1997, this Court denied Plaintiffs' motion on the grounds that: (1) Plaintiffs did not appear likely to succeed on the merits; and (2) national security interests associated with implementing the SSM Program outweighed Plaintiffs' immediate environmental concerns.

 C. Present Litigation

 In January 1998, Plaintiffs filed a Motion for Leave to Amend their Complaint. *fn2" Since the publication of the SSM PEIS in September 1996, Plaintiffs allege that new information has come to light that presents a seriously different picture of the environmental and safety risks of plutonium pit production at Los Alamos and the National Ignition Facility at Livermore. Plaintiffs contend that the new information is significant enough to call into question the basic assumptions and conclusions of the 1996 PEIS. Specifically, Plaintiffs allege that the new information concerns: (1) recent scientific studies and independent review by the Defense Nuclear Facilities Safety Board revealing serious seismic and safety risks affecting key pit production facilities at Los Alamos--information that has already caused the agency to put its pit production operation on hold; (2) the agency's recent decision to use weapons grade plutonium (239) in the same building at Los Alamos where they use plutonium 238, thereby increasing the likelihood of plutonium fires as occurred at Rocky Flats; (3) a new congressionally mandated plan requiring the agency to design, construct, and partially operate a much larger scale pit production facility at multiple sites; and (4) new proposals to conduct a wide range of experiments at ...

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