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Concerned About Trident v. Schlesinger

Citation: 6 ELR 20047
No. No. 74-1184, 400 F. Supp. 454/8 ERC 1129/(D.D.C., 08/22/1975)

Property owners and environmental groups brought this NEPA action to challenge the Navy Department's decision to locate a Trident Submarine support base on Puget Sound at Bangor, Washington. Plaintiffs' aesthetic, conservational and recreational interests in the environment of the Bangor area give them standing. Sierra Club v. Morton, 405 U.S. 727, 2 ELR 20192 (1972). Laches is not a bar; plaintiffs did not sleep on their rights in filing suit four months after they took part in a hearing on the project's draft impact statement, and less then one month after the final EIS was filed. Cf. Committee to Stop Route 7 v. Volpe, 346 F. Supp. 731, 2 ELR 20446 (D. Conn. 1972). NEPA established a substantive right to have environmental factors considered in agency decision making. Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 297, 2 ELR 20740 (8th Cir. 1972). Given the court's narrow standard of review, however, it concludes as a matter of law that the Defense Department's discretionary national security-based decision to proceed with the Trident Submarine System was not substantively arbitrary or capricious under § 101 of NEPA, 42 U.S.C. § 4331, ELR 41009. McQueary v. Laird, 449 F.2d 608, 612, 1 ELR 20607 (10th Cir. 1971). Nor was the choice of the Bangor site for the Trident support base, which was well within he authority of the Secretaries of Defense and of the Navy, 10 U.S.C. § 5031(a), arbitrary or capricious under the Administrative Procedure Act, 5 U.S.C. § 706(2)(a), ELR 41001, and Citizens to Preserve Overton Park v Volpe, 401 U.S. 402, 1 ELR 20110 (1971). A more demanding standard of review applies to alleged agency noncompliance with the procedural requirements of NEPA, § 102(2)(c), 42 U.S.C. § 4332(2)(c), ELR 41009. Under Scientists Institute for Public Information, Inc. v. AEC, 481 F.2d 1079, 1092, 3 ELR 20525 (D.C. Cir. 1973), the test is whether the Departments of Defense and of the Navy made the substantive decision in question with an "individualized consideration and balancing of environmental factors — conducted fully and in good faith." The court concludes, after an exhaustive summary of the environmental analyses conducted by the Navy, that the project complies with NEPA. No programmatic EIS was required on the entire Trident program for it is not of such large scope as to require one. Nor was a separate EIS required on the decision to step up the Trident timetable, for that decision has not been shown to affect the environment differently from the original schedule. Nor is the EIS prepared on the Bangor facility inadequate under the standard of reasonableness set forth by Natural Resources Defense Council v. Morton, 485 F.2d 827, 837, 2 ELR 20029 (D.C. Cir. 1972). The evidence belies plaintiffs' allegation that the base location was irrevocably chosen before the issuance of the impact statement. The EIS also adequately addresses impacts of the facility in other areas of the county. The Environmental Protection Agency's review of this project's draft EIS was sufficient to satisfy § 309 of the Clean Air Act, 42 U.S.C. § 1857h-7, ELR 41226-27. The complaint is dismissed.

The full text of this opinion is available from ELR (34 pp. $4.25, ELR Order No. C-1004).

Counsel for Plaintiffs
David Sive
Mark A. Chertok
Richard G. Leland
Winer, Neuberger & Sive
425 Park Avenue
New York, N.Y. 10022
(212) 421-2150

Philip M. Best
245 4th Street Bldg.
Bremerton, Wash. 98310
(206) 373-5079

Ronald J. Wilson
810 18th Street, N.W.
Washington, D.C. 20006
(202) 628-3160

Counsel for Defendants
Irwin L. Schroeder
Geoffrey A. Muller
Lands Div., Justice Department
Washington, D.C. 20530

Richard C. Stearns
Navy Department
Washington, D.C. 20350

Counsel for Defendant-Intervenor
Raymond M. Momboisse
Ronald A. Zumbrun
Michael A. Lilly
Pacific Legal Foundation
1455 Capital Mall
Sacramento, Cal. 95814
(916) 444-0154

John H. Midlen, Jr.
1990 M. St., N.W.
Washington, D.C. 20036
(202) 659-5700

Hart, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]