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Wisconsin v. Weinberger

Citation: 14 ELR 20744
No. No. 84-1569, 745 F.2d 412/21 ERC 1439/(7th Cir., 08/20/1984) Rev'd

The court rules that new health studies did not constitute significant new information requiring the Navy to supplement its environmental impact statement (EIS) on Project ELF, its extremely low frequency (ELF) submarine communication facility, and that the district court erred in enjoining the project for violating the National Environmental Policy Act (NEPA) without balancing the equities. The court holds that an agency's decision not to supplement an EIS must be sustained unless arbitrary or capricious. An agency must do a supplemental EIS (SEIS) when there are significant new circumstances or information that provide a seriously different picture of the environmental landscape justifying a second hard look at environmental consequences. In challenging an agency's decision not to do an SEIS, plaintiffs must point to specific information or information accumulated over a specific period of time. In this case, according to the complaint, the period of time is from 1977, when the EIS was released, to 1981, when the Navy decided to reactivate the project. The court holds that the trial court incorrectly considered information that came to light after 1981. The trial court also applied the wrong standard in judging whether the new information was significant enough to trigger the formal SEIS process. The trial court used a "requires careful review" test rather than the "seriously different picture" test. Sampling the new information presented at trial, the court rules that none of it presents the sort of serious new picture of environmental effects that would require an SEIS. The Navy's informal ongoing review of health effect studies complies with the spirit and letter of NEPA.

The court goes on to declare that the district court abused its discretion in enjoining the NEPA violation without balancing the relative harm to the parties involved. Nothing in NEPA inescapably restricts a court's equitable powers. Nothing in NEPA elevates environmental protection above all other public interests or forecloses the application of traditional principles of injunctive relief. The only benefit from the injunction would be to avoid later biased decisionmaking by the Navy, but this risk is small since the investment remaining to be made is small. While a valid concern, the benefit is outweighed by the harm to the national defense.

One judge, dissenting in part, would have upheld the trial court's use of the "requires careful review" test and its conclusion that an SEIS was required, but agrees with the majority that NEPA does not bar a court from undertaking a balancing of equities.

[The district court opinions appear at 14 ELR 20407 and 20524.]

Counsel are listed at 14 ELR 20407.

Before CUMMINGS, Chief Judge, WOOD and CUDAHY, Circuit Judges.