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Hudson River Sloop Clearwater v. Department of the Navy

Citation: 17 ELR 21156
No. No. CV-86-3292, 659 F. Supp. 674/(E.D.N.Y., 04/28/1987) Motions for partial summary judgment

The court holds that information relating to the deployment of nuclear weapons on Navy ships is classified for reasons of national security and is thus exempt from public disclosure in the Navy's environmental impact statement (EIS) on stationing ships in New York harbor. The court also holds that the Navy must provide it with formal documentation explaining why new housing for sailors associated with the ships will not require additional environmental analysis for its impacts on wetlands. In proposing to station the ships, the Navy had disclosed that at least some of them will be capable of carrying nuclear weapons, but refused in the EIS to confirm or deny whether they actually would be carried. The court holds that all information relating to the presence of nuclear weapons aboard specific Navy ships is classified, in accordance with Executive Order No. 12356 and the Atomic Energy Act. Relying on the Supreme Court's decision in Weinberger v. Catholic Action of Hawaii/Peace Education Project, 12 ELR 20098 (1981), the court holds that the Navy is not required to make environmental documents on the impacts of nuclear weapons publicly available unless the Navy has otherwise disclosed that nuclear weapons will actually be carried on the ships. The Navy has made no such disclosure here. The court notes that the Navy's policy of treating all information regarding nuclear weapons on specific ships as confidential is a proper exercise of delegated authority under Executive Order No. 12356, and that only an authorized disclosure, as opposed to a "leak," would undermine that policy. The court denies a motion to allow additional time for discovery of other disclosures by the Navy.

The court holds that the Navy must formally document its decision not to supplement the EIS with respect to the effect of new Navy housing on wetlands. Although the Navy did not learn that wetlands may be affected until its final supplemental EIS was in final typing, a supplement must be prepared where there is significant new information. The court notes that this determination is made initially by the determining agency and in the Second Circuit is judicially reviewed under the arbitrary and capricious standard. Although the NEPA regulations do not require a formal document explaining why supplementation is unnecessary each time new information comes to light, documentation is appropriate in the instant case due to the sensitivity of this particular new information and the Navy's response to date.

[The relationship between NEPA and disclosure of information on nuclear weapons is analyzed at 12 ELR 10007 (1982).]

Counsel for Plaintiffs
Leonard M. Marks, Alan R. Friedman
Gold, Farrell & Marks
41 Madison Ave., New York NY 10010
(212) 481-1700

Counsel for Defendants
Andrew J. Maloney, U.S. Attorney; Robin Greenwald, Ass't U.S. Attorney
U.S. Cthse., 255 Cadman Plaza East, Brooklyn NY 11201
(212) 330-7106