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Ground Zero Ctr. for Nonviolent Action v. Department of the Navy

ELR Citation: 34 ELR 20100
Nos. No. 02-36096, (9th Cir., 09/21/2004)

The Ninth Circuit held that the U.S. Navy need not review the probable significant environmental impacts of an accidental explosion of a missile during operations at its submarine base in Bangor, Washington, under the National Environmental Protection Act (NEPA), and that it does not need to consult the National Marine Fisheries Service (NMFS) regarding the possible effects of such an explosion on threatened salmon species inhabiting the waters adjacent to the base under the Endangered Species Act (ESA). Nonprofit groups filed suit against the Navy claiming NEPA and ESA violations with regard to a missile storage upgrade program at the base. Because the Navy has only limited discretion in the program's operation, and within that discretion the risk of a missile explosion is remote, NEPA does not require the Navy to issue an environmental impact statement assessing the environmental effects of such an accident at Bangor. Similarly, because of the Navy's limited discretion and the remoteness of a possible accidental missile explosion, the ESA does not require the Navy to consult with the NMFS about whether such an accident would jeopardize the continued existence or adversely affect the critical habitat of threatened salmon species.