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New York v. NRC

Citation: 7 ELR 20203
No. Nos. 75-6115 et al., 550 F.2d 745/9 ERC 1825/(2d Cir., 02/14/1977) Aff'd

The court affirms the district court's denial, 5 ELR 20662, of plaintiff's motion for summary judgment and for a preliminary injunction restraining defendants from licensing the air transport of special nuclear materials before completion of an environmental impact statement as required by the National Environmental Policy Act (NEPA). The district court denied plaintiff's motions and dismissed the case against two defendants, the Civil Aeronautics Board (CAB) and the Customs Office. In so doing, the district court determined that, although plaintiff had shown a likelihood of success on the merits, it had failed to show a threat of irreparable harm, which is a necessary precondition to the granting of any preliminary injunctive relief. The standard of appellate review of a lower court's decision on a preliminary injunction is limited to abuse of discretion or clear violation of law, except in the circumstance where the case is decided on pleadings rather than testimony. Even so, de novo appellate review is discretionary and the broadening of such review is permissible more often when a preliminary injunction is granted and is to some extent governed by the specificity of the lower court's findings of fact. Neither of these factors here militates toward broad appellate review. In this case, a mere violation of NEPA does not per se establish irreparable harm since no irretrievable commitment of resources will occur in simply carrying out the air transport program, which has sustained no accidents in 25 years of operation. Moreover, an accidental crash involving air transport of special nuclear materials does not undeniably cause irreparable and imminent defacement of natural resources. Furthermore, the status quo is not destroyed by air transport where the claimed harm — release of radioactivity from an airplane crash — is at best speculative. Neither has plaintiff shown that the record affirmatively discloses the threat of irreparable harm. Accidental plane crashes and terrorist diversion of special nuclear materials are both highly remote possibilities. Preliminary injunctive relief can be awarded only when a threat is actual and imminent.

The court also finds that, although it has appellate jurisdiction over plaintiff's second motion for a preliminary injunction, it cannot disturb the district court's denial thereof because the lower court correctly perceived that granting the second motion would destroy the posture of the present case on appeal. As to the district court's denial of the plaintiff's motion for summary judgment, the court follows the rule that denials of motions for summary judgment are generally not reviewable on an interlocutory basis. The limited exception to this rule, which allows review where there is sufficient overlap between reviewable and nonappealable issues, is not applicable here because no such overlap exists between the issues involved in the motion for preliminary injunction and the merits of the case in the motion for summary judgment. Similar reasoning is applicable to the dismissal of the CAB and Customs, which is ordinarily not reviewable, as fewer than all defendants were dismissed.

For moving papers in this case, see ELR 65266, 65337, 65364.

Counsel for Plaintiff
Louis J. Lefkowitz, Attorney General; Samuel A. Hirshowitz, First Ass't Attorney General; Joseph J. Zedrosser, Ass't Attorney General
2 World Trade Center, New York NY 10047
(212) 488-4141

Counsel for Defendant
Robert B. Fiske, Jr., U.S. Attorney; Charles F. Richter, Ass't U.S. Attorney
One St. Andrews Plaza, New York NY 10013
(212) 791-1963

Joined by Meskill and Bartels,* JJ.