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Weinberger v. Catholic Action of Haw./Peace Educ. Project

Citation: 12 ELR 20098
No. No. 80-1377, 454 U.S. 139/16 ERC 1689/(U.S., 12/01/1981) Rev'd

Reversing a decision of the Ninth Circuit, 10 ELR 20683, the Supreme Court upholds the Navy's failure to prepare an environmental impact statement (EIS) for a classified nuclear weapons storage project. The Court first holds that the Ninth Circuit incorrectly interpreted § 102(2)(C) of the National Environmental Policy Act (NEPA) by requiring preparation of a "hypothetical" EIS. It notes that public disclosure of an EIS is expressly governed by the Freedom of Information Act (FOIA). Exemption 1 of FOIA exempts from disclosure national defense or foreign policy matters that are properly classified pursuant to executive order. Since information on whether nuclear weapons will be stored at the project site is classified, an EIS premised on nuclear weapons storage would be exempt from disclosure. The Court also holds that the Navy is not required to prepare, for internal use only, an EIS premised on nuclear weapons storage at the facility. The obligation to prepare an EIS requires a proposal for action. Because of security regulations, however, the storage of nuclear weapons at the site was not shown to have been formally proposed. Thus, for practical purposes the Navy's compliance with NEPA in this case is beyond judicial scrutiny.

In a concurring opinion, two members of the court emphasize that classified proposals are not exempt from NEPA's EIS requirement. Where feasible, EISs should be organized so that unclassified portions can be made available to the public.

Counsel for Petitioners
Rex E. Lee; Wade H. McCree Jr., Solicitor General; Carol E. Dinkins, Ass't Attorney General; Louis F. Claiborne, Deputy Solicitor General; Harlon L. Dalton, Peter R. Steenland Jr.
Department of Justice, Washington DC 20530
(202) 633-2748

Counsel for Respondent
Nancy Stearns
Environmental Protection Bureau
Two World Trade Center, 47th Floor, New York NY 10047
(212) 488-5589