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Romer v. Carlucci

ELR Citation: 18 ELR 21092
Nos. Nos. 86-1458, -1517, 847 F.2d 445/27 ERC 1931/(8th Cir., 05/18/1988) Modified en banc

In an en banc decision, the court holds that state and local governments and environmental groups can challenge the adequacy of the Air Force's environmental impact statement (EIS) on the deployment of MX missiles, but the EIS need not consider alternate weapons systems or basing modes, or the missiles' potential wartime use. The court first holds that the 1984 Department of Defense Authorization Act defines the EIS requirements for all MX missiles authorized by Congress. Section 110 of that Act limits EIS requirements to deployment and peacetime operations of actually authorized MX missiles in former Minuteman silos, but applies to all congressionally authorized MX missiles and not just those authorized in the Act. Congress passed the 1984 Act after receiving a report from President Reagan recommending a deployment plan for all MX missiles; although fewer missiles were authorized than the president requested, at least Congress accepted, at the outset, the president's basing strategy. Although Congress established procedures for continuing reports from the executive branch on the MX missile program, these were congressional requests for information rather than evidence of reopening the basing decision. The court next holds that judicial review of the EIS does not violate the political question doctrine. The 1984 Department of Defense Authorization Act plainly required EIS preparation. Purely legal questions, such as those that exist here, are justiciable even if accompanied by political overtones. Finally, the court defines the scope of review of the EIS. Issues affecting the deployment of the missiles and their peacetime operation are reviewable; issues regarding alternative weapons systems, alternative basing modes, and intentional or wartime use are precluded.

A separate opinion, concurring in part and dissenting in part, would exclude issues of wartime use and alternative defense systems from judicial review based on the National Environmental Policy Act rather than the 1984 Department of Defense Authorization Act. It would, however, permit judicial review of the EIS' treatment of alternative basing modes.

[The court's panel decision in this case appears at 17 ELR 20984.]

Counsel for Appellants
Neal T. Kilminster
Wilmer, Cutler & Pickering
2445 M St. NW, Washington DC 20037-1420
(202) 663-6000

Counsel for Appellees
Peter R. Steenland Jr.
Land & Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2748

Before LAY, HEANEY, BRIGHT, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, and MAGILL, Circuit Judges.