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New York v. NRC

Citation: 5 ELR 20662
No. No. 75 Civ. 2121 (WCC), (S.D.N.Y., 09/09/1975)

The court denies plaintiff's motion for a preliminary injunction against air transportation of plutonium and other special nuclear materials pending trial on its claim that preparation of a NEPA impact statement is required for the transport program. Even assuming there is a sufficient likelihood of success on the merits, the injunction cannot be granted because plaintiff has failed to demonstrate that continuation of air transport of nuclear materials will cause irreparable harm. This is not a case concerning federal action such as highway or dam construction which would irreversibly disturb the environmental status quo; to the contrary, the court here is being asked to alter a method of shipment which has gone on for 25 years without any evident adverse environmental impact. Nor can it be said that possible violation of NEPA represents irreparable harm per se in this instance, since denial of an injunction at this stage will not decrease the effect that any EIS which may ultimately be prepared will have on the agency decision of whether to modify this method of shipment. Plaintiff's contention that continued air transport endangers human life is also unconvincing. There is only a very remote likelihood of an adverse environmental incident in the form of plutonium container rupture after an air crash, and air shipment would seem to have clearcut advantages over surface transport in terms of vulnerability to terrorist attack.

Counsel for Plaintiff
Louis J. Lefkowitz Attorney General
Philip Weinberg
John F. Shea, III
Joseph J. Zedrosser Asst. Attorneys General
State Capitol
Albany, N.Y. 12224

Counsel for Defendants
Charles Richter Asst. U.S. Attorney
Louis Gerber
U.S. Courthouse
One Foley Square
New York, N.Y. 10007