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Wisconsin v. Weinberger

Citation: 14 ELR 20407
No. No. 83-C-672-C, 578 F. Supp. 1327/20 ERC 1466/(W.D. Wis., 01/31/1984)

The court rules that, in light of significant new information on the health effects of extremely low frequency (ELF) radiation, the Navy must prepare a supplemental environmental impact statement (EIS) on its proposal to reactivate its ELF submarine communication facility in Wisconsin and Upper Michigan. The court first rules that it may consider evidence outside the Navy's administrative record, since the record does not adequately explain the Navy's decision not to do a supplemental EIS and the record does not indicate what new information came to light after a 1977 EIS on the facility was released. The court rules that the Navy's recommendation to the President that the ELF project be reactivated is a programmatic action subject to the National Environmental Policy Act (NEPA). Although the recommendation involves a project begun before NEPA's enactment, the project has changed in form and focus to make it subject to NEPA. The court then rules that the Navy's decision not to do a supplemental EIS must be sustained unless arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. The Council on Environmental Quality (CEQ) regulations require an agency to prepare a supplemental EIS if there are substantial changes in its proposal or if significant new information comes to light. The Navy's current proposal does not differ enough from the proposal covered in the 1977 EIS to require supplementation. Some of the changes reduce the environmental impact of the project; others are incremental expansions of the project that the public reasonably anticipated would follow the 1977 proposal and that the public commented on in reviewing the 1977 EIS. However, the court rules that the Navy's failure to do a supplemental EIS in light of new, meritorious, accessible, relevant information on biological effects of ELF radiation violates the CEQ regulations. It was not enough for the Navy simply to keep informed of such information; the Navy had a duty to reevaluate the probable effects of the ELF project on animal life in light of the new information. The Navy neither prepared a supplemental EIS on biological effects nor explained why not. The Navy's failure to consider significant new data was an abuse of discretion. The court orders the Navy to prepare a supplemental EIS.

Counsel for Plaintiff
Shari Eggleson, Ass't Attorney General
Dep't of Justice, P.O. Box 7857, Madison WI 53707
(608) 266-1221

Counsel for Plaintiff-Intervenor
Patricia Micklow, Chief Civil Counsel
Cty. of Marquette, Prosecuting Attorney's Office
Cthse. Annex, Marquette MI 49855
(906) 228-8500

Counsel for Defendant
John R. Byrnes, U.S. Attorney
P.O. Box 112, Madison WI 53701
(608) 264-5158