Project Cannikin and the National Environmental Policy Act

Four months ago eight environmental groups filed suit in the Federal District Court for the District of Columbia in an attempt to block the underground detonation by the Atomic Energy Commission of a five-megaton nuclear warhead on Amchitka, an island in the Aleutian chain off Alaska. On Saturday, November 6, after numerous rulings from the district and appellate [1 ELR 10162] courts below, the groups came very close to convincing the Supreme Court that it should issue an eleventh-hour order restraining the Commission from proceeding with the test, which was code-named "Project Cannikin". The groups relied primarily on the assertion that the Commission had failed to comply with the National Environmental Policy Act of 1969, although they had also alleged violations of the Nuclear Test Ban Treaty, various statutes designed to protect wildlife, and the rights under the Fifth and Ninth Amendments of citizens endangered by the blast. Consequently the seven court decisions in the Cannikin litigation focus upon the sufficiency of the environmental impact statement which the Commission prepared under § 102(2)(C) of NEPA and upon the discovery proceedings through which plaintiffs attemptedto show that existing scientific analyses, which had been requested by the government and classified secret by it, cast considerable doubt on the accuracy of Commission's statement of the risks which Project Cannikin presented.

The eventual loss before the Supreme Court, the subsequent uneventful detonation of the device, and the more focused and case-oriented analysis of the ELR Comment which follows should not be allowed to overshadow the importance for NEPA of the Cannikin litigation. It is significant that the plaintiff groups were allowed to appear at all before a special Saturday session of the court (requested by the Chief Justice just hours before the blast) to challenge a major nuclear test of allegedly vital importance to national security, which Congress had debated and the President had personally ordered to go ahead, on the ground that the act required the Commission to use the 102 process for informing Congress, executive decision-makers and the public of the full range of environmental risks which the project posed. The litigation, it must be stressed, was not a loss for NEPA. Rather, even though they narrowly failed to obtain the relief requested, the environmental groups conducted a litigation the net result of which, whatever the merit of specific holdings, is a warning to federal agencies that NEPA may not be cast aside, even in the circumstances of Project Cannikin, nor may agencies alone determine what their impact statements must contain.

The seven rulings — three in the District Court, three in the Court of Appeals and one in the Supreme Court — certainly offered the prospect of much new judge-made law on NEPA.¹ Surprisingly, however, the precise holdings in the litigation add little of substance to NEPA's judicial history. The Supreme Court's ruling, after the first oral argument to be presented to it under the act, leaves much in doubt. The majority of four (Brennan, Douglas and Marshall, dissenting) merely denied the relief requested without giving reasons or delivering an opinion. The Circuit Court refused to rule either on the correctness of the district court's holding that the AEC had complied with NEPA or on the court's refusal to release certain memoranda. Perhaps the most important result in the cases was a holding in the Circuit Court that responsible scientific opinion which disagreed with the agency assessments of environmental impact must be included in the agency's impact statement, but even this holding is open to criticism that it is restrictive and confusing and that the holding ten months earlier on exactly the same point in an Arkansas district court more clearly and fully interpreted the intent of the act. See EDF v. Corps of Engineers, 1 ELR 20130 (E.D. Ark. 1971). Finally, the district court in its three rulings never prepared a written opinion.

The seven Cannikin decisions followed each other closely.On August 30, 1971, Judge George Hart granted summary judgment for defendants, after a short hearing during which many heated exchanges occurred between Judge Hart and plaintiffs' attorney, David Sive. The court did not write an opinion nor give reasons for its ruling. Also, it halted discovery proceedings, a delay which in retrospect may have cost plaintiffs the case. Committee for Nuclear Responsibility, Inc. v. Seaborg, (D.D.C. Aug. 30, 1971).

Plaintiffs appealed, and in the most important of the Cannikin decisions the Court of Appeals for the District of Columbia Circuit reversed. Deciding the case without the benefit of the district court's reasoning, the court of appeals had to assume that the district court had accepted the validity of the defendants' strongest contention, which was that Congress's passage of authorization and appropriation bills for the test was a conclusive determination that the impact statement was adequate. Committee for Nuclear Responsibility v. Seaborg, 1 ELR 20469 (D.C. Cir. Oct. 5, 1971). The court of appeals held that Congress had not specifically repealed NEPA with respect to the Cannikin statement, that repeal by general implication is disfavored, and that some Congressmen voting for the project expressly stated that they thought the claim of illegality remained for resolution by the courts. With the exception of EDF v. Corps of Engineers, 325 F. Supp. 728, 1 ELR 20130 (E.D.Ark. 1971), the court failed to cite the many cases in which the judicial reviewability of the adequacy of impact statements has been upheld.² Turning to possible alternative grounds for the ruling below, the court of appeals found that the grant of summary judgment prematurely terminated discovery and foreclosed plaintiffs' opportunity to substantiate their allegations. 1 ELR 20470. Plaintiffs were entitled to submit [1 ELR 10163] affidavits and continue discovery, and thus to show the insufficiency of the Commission's impact statement, because NEPA requires that responsible dissenting scientific opinion be identified in the text of the impact statement itself in a way which meaningfully discloses the full range of views on the potential environmental impact of the proposed action to each person in the chain of executive decision-making, up to and including the President. 1 ELR 20470.

In connection with the disclosure requirements of § 102, the court held that if reports by federal agencies exist which recommend against a project because of its potential harm to the environment, NEPA clearly requires the agency preparing the impact statement to obtain and release the adverse reports. 1 ELR 20470.

On remand plaintiffs resumed discovery proceedings, in the course of which they asked defendants to produce several specific government documents which allegedly were critical of the environmental impact which the explosion might produce. Defendants claimed executive privilege, and the district court ordered that the documents be produced for in camera inspection "to determine whether they contain a presentation or discussion of an environmental hazard of substance not alluded to in the environmental statement relating to the Cannikin test." 1 ELR 20532.

Defendants appealed, attempting to invoke "pure" executive privilege to prevent even in camera inspection of the documents. The court of appeals ordered in camera inspection to proceed, holding that defendants' claim of absolute immunity based upon the bald assertionof privilege by an agency head cannot stand. Such a general rule would allow fraud or corruption to be hidden from courts and grand juries.³ Committee for Nuclear Responsibility, Inc. v. Seaborg, 1 ELR 20529 (D.C. Cir. Oct. 28, 1971). In the same proceedings respondent environmental groups asked the court of appeals for a stay pendente lite, because only hours before argument on appeal the Commission had scheduled the blast for the following week. The court denied the stay, reasoning that it did not have enough information about the national security aspects of the project to balance them against the "serious question of legality" which the respondents' NEPA claim raised. Such balancing in this case had to be done by the Executive. 1 ELR 20532.

Without a stay and with the blast scheduled for November 6, plaintiff environmental groups nevertheless pressed their case in the district court. On Monday, November 1, the district court released some documents, but withheld others. The documents released formed an impressive array of scientific and official opinion which questioned the accuracy of the Commisson's impact statement in several important respects. The documents included memoranda from Russell Train, Chairman of CEQ, and scientists J. W. Hadley, W. G. Van Dorn, and M. L. Merritt. Documents not released included memoranda from William D. Ruckelshaus, Administrator of EPA, Edward E. David, Director of the Office of Science and Technology, and Glenn T. Seaborg, then Chairman of the AEC. All of the documents in question were submitted to the Undersecretary's Committee of the National Security Council. This Committee, chaired by John Irwin, Undersecretary of State, was created by National Security Decisional Memorandum No. 2 (January 20, 1969), with authority to consider certain matters referred to it by the Assistant to the President for National Security Affairs (now, Dr. Henry Kissinger). In National Security Decisional Memorandum No. 18 (1969), which is secret, the Undersecretary's Committee was authorized to review plans for underground tests and to make recommendations to the President regarding their advisability. In other words, the AEC prepared a public impact statement, but the government also provided for study of the effects of the project in a parallel, secret review which in retrospect was more probing and critical, as the release by the district court of some of the documents revealed.

The documents released, when read in conjunction with the Commission's impact statement, reveal that the impact statement significantly underestimates the likelihood that Project Cannikin would cause a tidal wave and earthquakes, and that it would leak radiation into the surrounding ocean. The factual discrepancies which support a higher assessment of risks will not be set out here; rather, the reader is referred to Mr. Justice Douglas' dissenting opinion in the Supreme Court, where they are discussed in detail. 1 ELR 20534.

Plaintiffs urged the district court to find that the release of the documents cast considerable doubt on the adequacy of the Commission's impact statement. However, the district court found that the Commission's statement complied with NEPA, that none of the documents examined in camera discussed environmental hazards not "alluded to" in the statement, that defendants complied with all applicable law, and that the court lacked jurisdiction to enjoin a [1 ELR 10164] "presidential decision." 1 ELR 20533.

Armed now with official documents showing important weaknesses in the assessment of risks set out in the Commission's impact statement, but forced to work under almost insurmountable time pressure with the blast scheduled to take place on Saturday, November 6, plaintiffs took their case once again to the court of appeals. Three days before the blast, the court held that although it did appear to the court that the Commission's impact statement failed to satisfy NEPA's requirements, nevertheless with the period for judicial review "drastically foreshortened," a hurried review of the technical material involved could not produce a satisfactory judicial resolution of the litigation. In short, as far as stopping the test was concerned, appellants' time had run out. Committee for Nuclear Responsibility v. Seaborg, 1 ELR 20532 (D.C. Cir. Nov. 3, 1971). But the court did say that plaintiffs might yet prevail in the courts with their claim that the Commission had not complied with NEPA in approving the Cannikin test. The "mere occurrence" of the blast would not moot the legal issue, nor would it moot plaintiffs' request that the documents still classified secret be released. The court of appeals' decision clearly contemplates that the litigation may continue. 1 ELR 20534.

The environmental groups immediately appealed to Chief Justice Burger as Circuit Justice for the District of Columbia Circuit, requesting that he enjoin the blast until the courts had had time to rule on the legal questions involved. On Friday, November 5, at about 3 p.m., 22 1/2 hours before the nuclear warhead would have to be armed in order to explode as scheduled at 5 p.m. E.D.T., the Chief Justice referred the matter to the full court. On Saturday morning the Court refused to enjoin the blast. The 4-to-3 decision literally came at the eleventh hour. The justices were apparently still debating whether to restrain the Commission a half-hour before their 12:30 p.m. deadline, at which time the warhead was to be armed to explode 4 1/2 hours later. Committee for Nuclear Responsibility, Inc. v. Schlesinger, 1 ELR 20534 (U.S. Nov. 6, 1971).

Attorney David Sive for petitioners argued to the Court that there was no need to brush NEPA aside and allow the test to proceed without first fulfillingthe substantive requirements of law. He then reiterated the arguments pressed with mounting urgency below, none of which, however, served his purposes better than his answer to a question put by Mr. Justice Brennan, which allowed Sive to clarify why petitioners thought that compliance was so important under the press of the countervailing considerations of time, national security, foreign policy, Congressional action and presidential approval. Mr. Justice Brennan appeared puzzled that petitioners thought that obtaining a complete impact statement was of crucial importance. He asked Sive if critical executive decision-making did not always involve conflicting opinions among high federal officials and always have to proceed under a troublesome haze of insufficient information and disagreement. Sive agreed that before NEPA was passed federal decision-making with environmental impacts had followed this pattern, but urged that NEPA was designed, not to end conflict and uncertainty, but to bring about a fundamental change in the technique of federal decision-making. The act institutionalized conflict in its sphere, by setting out a detailed process for putting into the balance the possible environmental detriment which a "beneficial" federal action may ential.All points of view must be discussed in the statement, which will have gone through several distinct stages of inter-agency, inter-governmental and public evaluation and criticism. Then before action is taken the revised statement must be made public. Even in a matter like Cannikin, Sive urged, the government cannot now decide by any other means.

Solicitor-General Irwin Griswold argued that NEPA does not require that impact statements be right, or exhaustive, or that they include all responsible dissenting opinion. Nor, he urged, "does any court have any authority to review a statement in any way." (Several justices challenged him on this proposition, and he modified his contention to allow for judicial review of agency compliance with the act.) He then urged that Congress had overruled NEPA specifically for Project Cannikin in passing legislation which required the President to approve the test personally if it was to occur before May, 1971. See Pub. L. No. 92-134, 85 Stat. 365 (1971). The Solicitor-General went into detail about the preparation of the secret memoranda for the Undersecretary's Committee, in order to show that the memoranda were not part of the NEPA process and could not be brought into it. In Undersecretary Irwin's Committee the secret memoranda and the public impact statement both influenced the committee's recommendation to the National Security Council and the President. Finally the government urged, among other things, that delay of the blast for even a few days would probably result in postponement of the test for a year, thereby damaging national security.

A majority of four voted to deny the requested stay. 1 ELR 20534. Justices Brennan and Marshall thought that a substantial question existed as to the legality of the Commission's compliance with § 102(2)(C) of NEPA and that therefore a stay should be granted to avoid mootness. 1 ELR 20537. Mr. Justice Douglas also would have granted the stay for the same reason, citing decisions in the Circuit Court below. 1 ELR 20534. He also cited several cases as explicit authority for the judicial reviewability of impact statements and relied in part upon Calvert Cliffs' Coordinating Committee v. AEC, 1 ELR 20346 (D.C. Cir. 1971).

[1 ELR 10165]

Cannikin litigation appears to uphold NEPA's applicability but leaves important questions unresolved.

The Cannikin litigation overtaxed the ability of the courts to respond quickly. In the last hectic week before the test, the district court's ruling on Monday, November 1, at least was clear: defendants have complied with NEPA and all other applicable law; none of the documents examined in camera discussed environmental hazards not "alluded to" in the Commission's impact statement; and the courts cannot enjoin a "presidential decision". However, on Wednesday the court of appeals refused to decide the issues befoe it in the short time before the test was to take place. It left the district court's order intact, but said that "the NEPA process … has not run its course in the courts". 1 ELR 20533. "While we deny preventive relief, it should be clear that plaintiffs may yet prevail in their claim that the AEC failed to comply with NEPA in approving the Cannikin test." 1 ELR 20534. Nor would the court review the district court's refusal to release other documents reviewed by it in camera but still classified secret.Such review, the court of appeals said, would not be mooted by the "mere occurrence" of the blast, and "review of the District Court's order withholding certain documents will await review of its final disposition of the case." 1 ELR 20534. The court of appeals said nothing about whether the courts may enjoin a "presidential decision," which the district court held they could not.

The decision of the court of appeals implies that the district court has yet to rule finally in the case. Thus, the court of appeals is of the opinion that neither of the two most important questions in the litigation — whether the AEC's impact statement complied with NEPA; and whether the district court correcting applied the court of appeals' earlier decision in not releasing certain documents viewed in camera — has been decided. Nor did the court of appeals speak to the part of the district court's ruling which at least implies that NEPA may not apply at all where a "presidential decision" has been made. It certainly appears from the tenor of all its opinions (October 5, October 28, November 3) that the court of appeals intended to leave no room for an executive branch end-run around NEPA. Its opinion of October 5th made clear that the legislation requiring the President's personal approval if the test was to take place before May, 1971 did not implicitly overrule NEPA as it applied to Project Cannikin.

The majority of four in the Supreme Court did not give reasons for their refusal to enjoin the blast pending final determination of the legal issues raised below. 1 ELR 20534. Thus it is unknown which of respondents' various arguments prevailed, if any, and upon which justices. Of course the most likely ground was time; the Supreme Court literally had minutes in which to decide. If the court of appeals concluded that three days was not enough time for judicial resolution of the controversy, quite likely the justices of the Supreme Court felt that they could not resolve it in the few minutes left for deliberation after oral argument was completed.

The decisions in the courts below were not disturbed by the Supreme Court. The district court held that NEPA had been complied with, the court of appeals held that a substantial question existed about the adequacy of the Commission's compliance but there was not time to resolve that issue, and the Supreme Court refused to enjoin the test so that the adequacy of the Commission's compliance could be fully litigated. Did the courts therefore hold that NEPA did not apply to Project Cannikin? Until plaintiffs seek further review consistent with the November 3rd ruling of the court of appeals (1 ELR 20532), the district court opinion that the AEC complied fully will remain undisturbed. The court did not rule specifically on whether the AEC had to comply with NEPA, because the issue was never raised and the AEC never alleged that it was exempt from compliance.

Whether or not NEPA must be applied, NEPA has been applied. Whether it has been properly applied is a separate issue and has not been finally determined. The Supreme Court's silence on its reasons for refusing to grant the relief requested is not a determination that NEPA need not be fully applied to a federal action like Project Cannikin. The Court could reach the same result whether or not NEPA had to be applied, whether or not it had been properly applied, whether or not the President's personal approval given pursuant to statute pre-empted NEPA, and whether or not national security and foreign policy were overriding considerations.

The treatment of "responsible dissenting opinion" in impact statements.

The October 5th decision of the Circuit Court held that responsible dissenting scientific opinion must be identified in the text of the impact statement itself in a way which meaningfully discloses the full range of views on the potential environmental impact of proposed action. The court held that the act requires that the impact statement be considered throughout the entire executive decision-making process, and:

… the officials making the ultimate decision, whether within or outside the agency, must be informed of the full range of responsible opinion on the environmental effects in order to make an informed choice.

* * *

[the court must] assure that the statement sets forth the opposing scientific views, and does not take the [1 ELR 10166] arbitrary and impermissible approach of completely omitting from the statement, and hence from the focus that the statement was intended to provide, any reference whatever to the existence of responsible scientific opinions concerning possible adverse environmental effects. Only responsible opposing views need be included and hence there is room for discretion on the part of officials preparing the statement; but there is no room for an assumption that their determination is conclusive. The agency need not set forth at full length views with which it disagrees, all that is required is a meaningful reference that identifies the problem at hand. … 1 ELR 20470.

The court specifically reserved judgment on whether the district court could refuse to order the release of agency comments that are not specifically prepared as agency comments on 102 statements on the grounds either that "they are not so related to the impact statement as to require their inclusion therein," or that the Freedom of Information Act exempts them from public disclosure. 1 ELR 20470.

The court's rule should be interpreted broadly to require detailed discussion in impact statements of opinion which merits scientific respect but is at odds with the agency point of view. Unfortunately, the rule as expressed by the court of appeals in open to a restrictive reading that would allow agencies preparing statements merely to mention the existence of dissenting viewpoints, without actually coming to grips in the statement with the substance of the disagreement itself. Relying on a restrictive reading, the district court has already held that the AEC's impact statement was adequate, because none of the documents which the court examined in camera contained information of substance not at least "alluded to" in that statement. 1 ELR 20533. Also, the district court refused to release certain other documents, chief among which is William Ruckelshaus's memorandum, ostensibly on the grounds either that they do not discuss environmental matters, or, if such matters are discussed, they have already been adequately examined in the impact statement. Plaintiffs have appealed both of these rulings, and the court of appeals has indicated, without deciding, that the district court too narrowly applied the court of appeal's instructions on remand. 1 ELR 20534.

A broader rule, which it must be admitted was formulated in a case where sensitive government-prepared dissenting opinion was not crucially involved, was set out by the Federal District Court for the Eastern District of Arkansas:

At the very least, NEPA is an environmental full disclosure law. The Congress, by enacting it, may not have intended to alter the then existing decisionmaking responsibilities or to take away any then existing freedom of decisionmaking, but it certainly intended to make such decisionmaking more responsive and more responsible.

The "detailed statement" required by § 102(C) should, at a minimum, contain such information as will alert the President, the Council on Environmental Quality, the public, and, indeed, the Congress, to all known possible environmental consequences of proposed agency action. Where experts, or concerned public or private organizations, or even ordinary lay citizens, bring to the attention of the responsible agency environmental impacts which they contend will result from the proposed agency action, then the § 102 statement should set forth these contentions and opinions, even if the responsive agency finds no merit in them whatsoever. Of course, the § 102 statement can and should also contain the opinion of the responsible agency with respect to all such viewpoints.The record should be complete. Then, if the decisionmakers choose to ignore such factors, they will be doing so with their eyes wide open. EDF v. Corps of Engineers, 1 ELR 20130, 20141 (E.D.Ark. 1971).

This rule does not solve all the problems of inclusion and exclusion which the courts will be called upon to solve. But it does focus steadfastly on NEPA's primary purpose, which is to alter current patterns of federal decision-making, to make them "more responsive and more responsible." The Arkansas district court does not merely require that the impact statement "mention" dissenting opinion; rather, it says that the statement should "contain" and "set forth" dissenting opinion, even non-meritorious opinion, so that the record will be complete and decision-makers will decide with their eyes open, i.e., in full awareness, not only of the dissenters' existences, but of their substantive points of view as well.

To appreciate the greater difficulty in ruling which the D.C. Circuit Court faced, it should be understood that while the Arkansas court was concerned almost exclusively with non-federal expert opinion provided by plaintiffs to expose the inadequacy of an impact statement prepared by the Corps of Engineers, the D.C. Circuit court had to consider, not only affidavits submitted by plaintiffs' expert witnesses, but also government-prepared and government-solicited memoranda written about Cannikin's environmental impact but intended for use outside the NEPA process. For example, the memoranda prepared by Russell Train, Chairman of CEQ, William Ruckelshaus, Administrator of EPA, and by various scientists for the Undersecretary's committee are such documents. The D.C. Circuit Court says, "NEPA clearly indicates that the agency responsible for a project should obtain and release such adverse reports." 1 ELR 20470.However, as indicated above, the court states two qualifications: the comments may not be so related to the impact statement as to require their inclusion therein; exemptions in the Freedom of Information Act may apply.⁴

[1 ELR 10167]

Section 309 of the Clean Air Act not applied to obtain public EPA Comment on Cannikin

One of the paradoxes of the Cannikin litigation is that the Train memorandum was released, while the Ruckelshaus memorandum was not; it is still secret as this Comment is written. Yet specific authority exists in § 309 of the Clean Air Act for the public to obtain the comments of EPA's Administrator on the AEC's impact statement. See the extensive discussion of § 309 in last month's Comment, 1 ELR 10146-51. On the other hand, no specific authority exists for obtaining the public comment of the Chairman of CEQ on any impact statement. The CEQ, in fact, is not listed in its own guidelines as one of the agencies with environmental expertise to which draft statements must be forwarded for comment.

Plaintiffs did not name EPA's Administrator as defendant in the original complaint, nor did they subsequently amend their complaint so that they could argue that EPA should prepare a § 309 comment or that EPA should release the Ruckelshaus memorandum as its comment under § 309. Yet both arguments could have been made.

The argument for a specially prepared public comment is simple: § 309 requires it. See Comment, supra, 1 ELR 10146. No retroactivity problem exists, because the AEC's final impact statement was released on June 23rd, 1971. The argumentfor release of the Ruckelshaus memorandum under § 309 is that agencies cannot be allowed to prepare one kind of factual environmental analysis for public consumption and another for secret use by the executive. Any other rule would sanction executive duplicity about factual questions which Congress in passing NEPA decided should be aired before the public, to promote "more responsive and responsible" federal decision-making. See EDF v. Corps of Engineers, supra.

Section 309 is largely declaratory of NEPA. See Comment, supra, 1 ELR 10147. The Circuit Court held in its October 25th opinion that so far as the adverse comments of sister federal agencies were concerned, the agency preparing the impact statement had a duty under NEPA to obtain and release such negative comments. 1 ELR 20470. The court clearly was focusing on comments such as Mr. Ruckelshaus's which were not prepared as comments on specific impact statements.⁵ The same rule should apply under § 309 where EPA comments are prepared, but not pursuant to § 309, for the reason given above.

The Circuit Court implies that on remand the district court could refuse to order the AEC to obtain and release memoranda which are not so related to the impact statement as to require their inclusion therein. 1 ELR 20470, footnote 16. Mr. Ruckelshaus's comments on Cannikin obviously were solicited for an assessment of the environmental impact of the blast. Further, ELR understands that his memorandum was largely based on comments prepared by the Department of the Interior on the AEC's June, 1970, draft statement.

Why then did the district court refuse to order the release of the Ruckelshaus memorandum, with the non-factual or national security aspects expunged? It had just released the Train memorandum, a copy of which shows clearly that several paragraphs were removed, ostensibly to protect non-factual information relevant to national defense. Either Ruckelshaus's opinion was not "adverse" in the same sense as Train's was, or the impact statement already covered the Ruckelshaus memo so thoroughly that nothing would be gained from its release. Both of these possible grounds are weak. Release of a non-adverse environmental report could not hurt the interest in secrecy which the government was urging. Nor would the lack of new information in the Ruckelshaus memorandum be relevant, because the memo in such circumstances would not affect what the public had already learned from the final impact statement released in June, 1971.

The withholding of the memorandum remains puzzling. Certainly its being withheld casts doubt on the efficacy of the Circuit Court's rule regarding release of federal reports, if it sanctions this result. Perhaps in further litigation to vindicate NEPA's applicability the Ruckelshaus memorandum will be released. The Circuit Court does contemplate review of the district court order withholding it. See 1 ELR 20534.

1. The two Mink rulings on Project Cannikin concern executive privilege and are discussed in footnote 3.

2. E.G., Wilderness Society v. Hickel, 325 F. Supp. 422, 1 ELR 20042, (D.D.C. 1970); EDF v. Corps of Engineers, 325 F. Supp. 728, 1 ELR 20079 (D.D.C. 1971); EDF v. Hardin, 325 F. Supp. 1401, 1 ELR 20207 (D.D.C. 1971); EDF v. Corps of Engineers, 1 ELR 20466 (D.D.C. Sept. 21, 1971).

3. Mink v. EPA, 1 ELR 20527 (D.C. Cir. Oct. 15, 1971), involves two more Cannikin decisions which will not be extensively discussed in this Comment. In that case 33 members of Congress brought suit both as government officials and as private citizens to obtain release of the same documents discussed in the text under the Freedom of Information Act. The district court on August 27, 1971, had denied the relief requested on the grounds that the documents discussed secrets relevant to national defense and foreign affairs, and that they were inter-agency memoranda exempt from public disclosure under the act. The court of appeals reversed and instructed the district court the examine the documents and release those which were contained in the files classified "secret" or attached to secret documents but which would not have been independently classified secret were they not associated with secret material. With respect to inter-agency memoranda, Soucie v. David, 1 ELR 20147 (D.C. Cir. 1971), governs. Information of an essentially factual nature may not be withheld from public disclosure unless it is inextricably intertwined with policymaking processes.

4. There is an important distinction between (1) privately developed scientific dissenting opinion or (2) government reports prepared for use outside the NEPA process and (3) agency documents prepared specifically under § 102(2)(C) of NEPA as comments on sister agencies' impact statements. The public availability of these last comments is unquestioned. For instance, the Department of the Interior prepared and released comments on the June, 1970 draft Cannikin impact statement. Comments must be made public under § 102(2)(C), and although they are inter-agency memoranda, they are not exempt from disclosure under § 552(b)(5) of the Freedom of Information Act, 5 U.S.C. 352 et. seq., which exempts certain inter-agency memoranda from disclosure. See Final Guidelines of CEQ, 36 Fed. Reg. 7724 (1971) § 10(f), 1 ELR 46049. See also Soucie v. David, 1 ELR 20147 (D.C. Cir. 1971). Agencies must take account of such comments in preparing final impact statements. In neither the Cannikin nor Arkansas litigation was this assertion challenged.

5. Further evidence that the Circuit Court intended to exclude comments prepared specifically for the § 102 NEPA process from its discussion of adverse federal reports is its remark that such adverse federal reports may be subject to exclusions in the Freedom of Information Act. NEPA comments are inter-agency memoranda; however, they clearly must be disclosed under § 102. CEQ guidelines spell out the non-applicability of the inter-agency memorandum exception to the Freedom of Information Act. See CEQ Final Guidelines 36 Fed. Reg. 7724 (1971), § 10(f), 1 ELR 40649.