Lamm v. Weinberger
Citation: 17 ELR 20984
No. Nos. 86-1458, -1517, 819 F.2d 1445/25 ERC 2049/(8th Cir., 05/21/1987)
The court holds that the National Environmental Policy Act (NEPA) generally does not conflict with the 1984 Department of Defense (DOD) Authorization Act, and thus in basing the MX missile the Air Force must fully comply with NEPA to the extent it exercises discretion in choosing among deployment options left open by Congress. The 1984 DOD Authorization Act explicitly required that an EIS be prepared in accordance with NEPA, and shows no entanglement between this requirement and the foreign policy decision of Congress to authorize deployment of the missiles. Federal projects are generally subject to judicial review for NEPA compliance, and there is no national defense exception from NEPA. Consequently, the court holds, MX missile deployment is also subject to judicial review for NEPA compliance. The Air Force's decision is not exempt from judicial review under the political question doctrine, since the court will review only the Air Force's compliance with NEPA, not the underlying military decision to deploy the MX missile.
The court holds that the Air Force need not consider alternative defense systems as to 54 of the proposed 100 MX missiles. As to 21 of these 54 missiles, the Air Force need not consider alternative basing modes other than in existing Minuteman silos. Congressional decisions and authorizations for action are not subject to NEPA, and the 1984 DOD Authorization Act authorizes appropriations for 21 MX missiles to be deployed in existing Minuteman silos, while the 1985 and 1986 DOD Appropriations Acts authorze an additional 33 MX missiles without specifying how they are to be deployed. Moreover, the environmental impacts of intentional use of the missiles need not be evaluated in an EIS, since the 1984 DOD Authorization Act explicitly limited the EIS for the first 21 missiles to their deployment and peacetime uses, and an EIS analyzing the intentional use of the remaining missiles would impinge on Congress' power to declare war and the President's function as commander-in-chief.
The court holds that the environmental impacts of an accident must be evaluated, including the possibility of earthquakes. Moreover, the Air Force must consider alternatives to deployment of the 46 missiles that have not yet been authorized by Congress, and alternative basing modes for the 79 missiles not covered by the approval of Minuteman silo deployment in the 1984 DOD Authorization Act. The court also holds that the EIS must consider the environmental impacts of removal of the existing Minuteman missiles from their silos to make room for the MX missiles, transportation of MX missile components from place of manufacture to Warren Air Force Base, defensive measures for the MX missiles, and the project's activities in Colorado.
Finally, the court holds that declaratory and mandatory injunctive relief is available for all 100 proposed MX missiles. Prohibitory injunctive relief is only available for the 79 missiles not covered by the 1984 DOD Authorization Act, since 10 of the 1984 Act's 21 missiles have already been deployed, and the 1984 Act directed that the Air Force proceed promptly with deployment following publication of the EIS.
A judge dissenting in part would not require the EIS to evaluate alternative basing modes for any of the 100 proposed missiles. The dissent reads the majority opinion to require an evaluation of the effects of an intentional launch of some of the missiles but disagrees with this requirement.
[A related decision appears at 13 ELR 30573.]
Counsel for Appellants
Gerald S. Citera
Wilmer, Cutler & Pickering
2445 M St. NW, Washington DC 20037-1420
Counsel for Appellees
Thomas E. Hookano
Land and Natural Resources Division
Department of Justice, Washington DC 20530
Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and CONMY, Chief District Judge.*