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Kasza v. Browner

ELR Citation: 28 ELR 20449
Nos. 96-15535 et al., 133 F.3d 1159/(9th Cir., 01/08/1998)

The court holds that the military and state secrets privilege and the Resource Conservation and Recovery Act (RCRA) §6001 presidential exemption bar two RCRA citizen suits against the U.S. Air Force and the U.S. Environmental Protection Agency (EPA). The two suits alleged RCRA violations and sought to compel compliance with RCRA reporting, inspection, and inventory requirements at a classified military installation near Groom Lake, Nevada. Addressing the claims against the Air Force, the court first holds that RCRA §6001's presidential exemption does not preempt the state secrets privilege. The state secrets privilege has long been established in the law of evidence, and the court can discern no congressional intent to replace the government's evidentiary privilege to withhold sensitive information in litigation by providing an exemption from RCRA's regulation of hazardous waste. The court next holds that the Air Force's invocation of the state secrets privilege comports with procedural requirements. The court also holds that the scope of the privilege asserted by the Air Force was not overbroad. Based on an in camera review, the court is satisfied that the Air Force properly employed the mosaic theory of classification and the state secrets privilege to withhold information requested in various discovery requests, because release of such information would reasonably endanger security interests. Further, having determined that the Air Force properly invoked and used the state secrets privilege, the court holds that the disclosure of any further information or a trial risks significant harm to the national security. Thus, because the very subject matter of the action is a state secret, the court affirms the district court dismissal of the action. The court then holds that the district court did not abuse its discretion when it denied a motion to disqualify the Air Force's U.S. Department of Justice lawyers, because the plaintiff presented nothing more than a conclusory charge of institutional conflict of interest.

Turning to the claims against EPA, the court holds that no genuine dispute exists as to the place that was subject to the inventory and inspection. The court also holds that the plaintiff's RCRA inventory and inspection claims are moot and no EPA declaration of compliance need be made. Noncompliance stopped with EPA's post-complaint inspection and inventory, and the record does not suggest that noncomplying conduct is likely to recur. For this reason, nothing is left for effective relief, and the case is over. In addition, the court holds that EPA-obtained RCRA §6001(a) presidential exemption renders plaintiff's RCRA public disclosure claim moot. Contrary to plaintiff's claims that the exemption is an invalid rolling exemption of a specific RCRA requirement, RCRA §6001 gives the President the authority to exempt federal facilities from compliance with a requirement if it is in the paramount interest of the United States to do so.

The court next dismisses that EPA's cross-appeal of the district court's decision that RCRA §§3007 and 3016 require public disclosure of classified information absent a RCRA §6001(a) presidential exemption. The Administrator's election to seek a presidential exemption moots the issue. Last, the court remands the plaintiffs' attorney fees' requests to the district court for reconsideration.

[Briefs and pleadings in this litigation are digested at ELR Briefs & Pleads. 66355, 66556, and 66568.]

Counsel for Plaintiffs
Jonathan Turley
George Washington University
2000 H St. NW, Washington DC 20052
(202) 994-7001

Counsel for Defendant
J. Carol Williams
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Wood Jr.* and Tashima, JJ.