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Wisconsin v. Weinberger

Citation: 14 ELR 20524
No. No. 83-C-672-C, 582 F. Supp. 1489/20 ERC 1871/(W.D. Wis., 04/05/1984) Reconsideration & stay denied

The court holds that it may not weigh national security factors against environmental factors in deciding whether to enjoin ongoing violations of the National Environmental Policy Act (NEPA) associated with the Navy's extremely low frequency (ELF) submarine communications project. The court rules that because Congress imposed the NEPA decisionmaking process on agencies (including the Department of Defense), thereby deciding the order of priorities, the court has no freedom to weigh national priorities in the traditional equitable balance before issuing the injunction. Unlike the aim of the Federal Water Pollution Control Act, the purpose of NEPA can only be served by preventing agency action until the mandated decisionmaking process has occurred. Further, the court rules that there is a presumption that actions in violation of NEPA should be enjoined until the requirements of the Act are met. The presumption may be overcome by a showing that an injunction is not necessary either because the violation is technical or because the agency will not commit itself to a course of action before the statement is filed. The court, therefore, stands by its prior ruling, 14 ELR 20407, that the Navy be enjoined from pursuing its new ELF project until NEPA is satisfied.

The court clarifies its injunction order, however, by holding that the Navy may continue to operate its existing ELF facility in Wisconsin. Relief under NEPA should be framed to preserve the widest freedom of choice for the agency. In the instant case, the Navy failed to prepare a supplemental environmental impact statement, which is required by 40 C.F.R. § 1502.9(c)(1)(ii) because of significant new information about environmental consequences and is meant to assist the agency in deciding whether to continue the action in light of the new information. An injunction would force the agency to discontinue its action before it could consider the new information. The plaintiffs offered no compelling evidence that continued operation of the existing facility would have an immediate adverse environmental impact.

The court grants defendants' motion for reconsideration, denies defendants' motion to vacate the injunction, denies defendants' alternative motion for a stay of the injunction pending appeal, and grants plaintiffs' motion for clarification.

Counsel are listed at 14 ELR 20407.