Nuclear Weapons and "Secret" Impact Statements: High Court Applies FOIA Exemptions to EIS Disclosure Rules

F. L. McChesney

The passage of the National Environmental Policy Act (NEPA)¹ precipitated a recurring conflict between the needs of the military to prevent disclosure of military and diplomatic secrets and the public's legislated right to obtain information about the environmental impacts of government actions. NEPA brings environmental considerations into government decisionmaking and simultaneously requires public disclosure of the results of the process. Embodied in the text of the Act is Congress' answer to the tension between the goal of full disclosure and the need for adequate protection of military secrets; such information may be withheld from the public pursuant to the withholding criteria set out in the Freedom of Information Act (FOIA).² The question whether an environmental impact statement (EIS) or parts of an EIS containing information involving issues of national security may be kept secret has not, until recently, been clearly defined in the case law. However, late in 1981, the Supreme Court addressed the interplay between military secrecy, the FOIA, and NEPA.

In Weinberger v. Catholic Action of Hawaii/Peace Education Project,³ the Court held that when an action involves properly classified national security information, such information need not be revealed. Further, the Court ruled, where an agency cannot, due to "national security" reasons, admit or deny the existence of a proposal, the courts cannot order the preparation of an EIS because the very existence of the action triggering the need for the EIS is "beyond judicial scrutiny."

EIS Disclosure and National Security

The FOIA requires each federal agency to make information available to the public for inspection and copying unless covered by one of nine exemptions.⁴ These exemptions apply to matters such as business trade secrets, certain inter-agency and intra-agency memoranda, and material specifically exempted from disclosure pursuant to other statutes.⁵ Military information falls under exemption 1, which authorizes the withholding of matters that are

specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order.⁶

NEPA, which has been described as a "full disclosure law,"⁷ was designed to provide the public with information on governmental affairs affecting the environment. Indeed, active public involvement in the NEPA process was anticipated and has in fact proven to be crucial to the success of the parallel congressional objective of improving internal governmental decisionmaking. Yet § 102(2)(C) of NEPA, after requiring the preparation of EISs "to the fullest extent possible," provides that such statements must be made available to the President, the Council on Environmental Quality (CEQ), and the public, "as provided by" the FOIA.⁸ This represents Congress' attempt to temper the goal of full disclosure in light of the need to prevent dangerous or unwise dissemination of data by federal agencies.

Yet it is clear from the face of § 102(2)(C) that this textual reference to the FOIA does not excuse agencies from preparing EISs on actions covered by one of the nine FOIA exemptions; it simply permits such statements to be withheld from disclosure. Indeed, Justice Rehnquist, in Catholic Action, confirmed the distinction between NEPA's EIS preparation requirement and its disclosure requirement:

The decisionmaking and public disclosure goals of § 102(2)(C), though certainly compatible, are not necessarily coextensive. Thus, § 102(2)(C) contemplates that in a given situation a federal agency might have to include environmental considerations in its decisionmaking process, yet without public disclosure of any NEPA documents, in whole or in part, under the authority of a FOIA exemption.⁹

CEQ has established guidelines for applying the FOIA exemptions in NEPA cases. Its regulations provide that agencies must make EISs, associated agency comments, and supporting documents available to the public, without regard to the FOIA exemption for interagency memoranda, "where such memoranda transmit comments of Federal agencies on the environmental impact of the proposed action."¹⁰ The regulations provide further that

[e]nvironmental assessments and environmental impact statements which address classified proposals may be safeguarded and restricted from public dissemination in accordance with agencies' own regulations applicable to classified information. These documents may be organized so that classified portions can be included as annexes, in order that the unclassified portions can be made available to the public.¹¹

Litigation regarding "Project Cannikin," which involved the underground test detonation of a five-megaton nuclear warhead beneath Amchitka, an island off the coast of Alaska, provided an early examination of the interplay between the FOIA and NEPA.¹² Plaintiffs in [12 ELR 10008] Committee for Nuclear Responsibility, Inc. v. Seaborg (Cannikin I)¹³ disputed the adequacy of the final EIS for the project, relying primarily upon a series of secret studies not mentioned in the EIS which cast doubt upon the safety and environmental soundness of the project. They sought discovery of Environmental Protection Agency (EPA) and CEQ comments¹⁴ regarding the environmental impact of the detonation. The Atomic Energy Commission's (AEC's) position was that the comments contained confidential data and thus could be withheld from disclosure. In Cannikin I, the first of three court of appeals decisions in the litigation, the D.C. Circuit held that an agency claim of confidentiality alone was insufficient to exclude information from the NEPA process and that responsible scientific opinion conflicting with the agency's positive assessment of the environmental impacts, including federal agency reports recommending against the test, must be included in the EIS unless subject to a statutory exemption. The court did not rule on the extent to which military information contained in federal agency reports could be disclosed to the public. But in Cannikin II,¹⁵ it upheld the district court's order for in camera review to determine whether the documents were exempt from disclosure under the FOIA. On remand, the district court ordered the production of some but not all of the disputed comments, presumably on the basis of FOIA exemption 1.

Related litigation ensued when 33 members of Congress sought to compel disclosure of ten documents relating to the Project Cannikin blast, including the EIS and the EPA and CEQ comments. However, unlike the plaintiffs in Cannikin, plaintiffs in Environmental Protection Agency v. Mink,¹⁶ also sought documents involving military and diplomatic secrets. While some of the documents were "classified," others were merely labeled "top secret."

The Supreme Court, in Mink, concluded that exemption 1, which exempted matters which were "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy,"¹⁷ protected the disputed documents from disclosure. Moreover, district courts could not even order in camera inspection of such documents "to sift out the so-called 'non-secret' components."¹⁸ In addition, exemption 5, which exempts "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency,"¹⁹ did not require that otherwise confidential but "unclassified" inter-agency or intra-agency memoranda be made available for in camera inspection if there are other means to demonstrate the propriety of withholding them. In the wake of the decision, Congress amended exemption 1 to apply only to documents that are "in fact properly" classified pursuant to criteria established by Executive order.²⁰ Thus, a "top secret" label alone is no longer enough to prevent in camera inspection, and possible disclosure of all or part of a document, under exemption 1.

EIS Preparation and National Security

Section 102(2)(C) provides that, "to the fullest extent possible," all federal agencies must prepare "a detailed statement" discussing the environmental impact of proposals for major federal actions significantly affecting the quality of the human environment.²¹ The phrase "to the fullest extent possible" has been relied on by the courts to require strict procedural compliance with NEPA. As the D.C. Circuit stressed in Calvert Cliffs' Coordinating Committee v. Atomic Energy Commission,²²

the language does not provide an escape hatch for foot-dragging agencies; it does not make NEPA's procedural requirement somehow "discretionary." Congress did not intend the Act to be such a paper tiger. Indeed, the requirement of environmental consideration "to the fullest extent possible" sets a high standard for the agencies, a standard which must be rigorously enforced by the reviewing courts.²³

In general, only a clear conflict of statutory authority overcomes the requirement of strict compliance. For example, in Flint Ridge Development Co. v. Scenic Rivers Association of Oklahoma,²⁴ the Supreme Court held that a specific statutory deadline in the Interstate Land Sales Disclosure Act precluded preparation of an EIS. And in Pacific Legal Foundation v. Andrus,²⁵ the Sixth Circuit found that the Secretary of the Interior, when listing species as endangered under the Endangered Species Act, is [12 ELR 10009] without discretion to consider the factors required to be considered in an EIS. Thus, since an EIS would not further the primary purpose of NEPA, to ensure that agencies consider environmental effects, no EIS was required. However, in cases involving military secrets, agencies seeking to protect information have often been unable to point to a specific statutory conflict, and have argued that there is an inherent conflict between NEPA and national security.²⁶ The courts, though reluctant to interfere with military projects, are generally agreed that there is no exemption from the strict compliance rule for actions involving national security.²⁷

In Concerned About Trident v. Rumsfeld,²⁸ which concerned a challenge to the EIS prepared by the Navy for the Trident nuclear submarine system located in Bangor, Washington, the D.C. Circuit left no doubt as to its view of the applicability of NEPA to military actions. The court condemned the Navy's argument that NEPA cannot possible apply to such actions as a "flagrant attempt" to exempt strategic military decisions from NEPA's mandates. It stressed that "[t]here is no support in either the statute or the cases for implying a 'national defense' exemption from NEPA."²⁹ Citing cases interpreting the phrase "to the fullest extent possible,' the court reminded the Navy that § 102 clearly instructs all federal agencies to comply with its requirements absent a clear and unavoidable statutory conflict, and the Navy had pointed to no specific statutory authority to exempt it from compliance.

Similary, in the "Project Cannikin" litigation, the D.C. Circuit held that the EIS requirment applied fully to military actions, noting that Presidential approval of the test did not negate the AEC's obligation to comply with NEPA.³⁰ The court nevertheless refused plaintiffs' application for a stay pendente lite. Although substantial questions existed as to the AEC's compliance with NEPA,³¹ the court was unwilling to shape a remedy that contradicted the President's decision that the "overriding requirements of national security" outweighed the possible environmental impacts of the blast. Judgments of this kind, the court noted, lie outside the scope of its authority.

Although plaintiffs failed to obtain the requested relief, the result does not imply that considerations of national security exempt the agency from complying with NEPA. While the D.C. Circuit denied injunctive relief because of the potential harm to national security, it rejected the AEC's claim that NEPA had been suspended and made it clear that the plaintiffs could still pursue and may yet prevail on their claim that the AEC failed to comply with NEPA.³²

What the Cannikin cases seem to say is that NEPA applies to classified military enterprises and the courts will enforce the Act's requirements in that context. If and when it comes to the point, however, that a court, in formulating an equitable remedy, must choose between environmental and "national security" interests, it will defer to the judgment of the executive branch.

Catholic Action

Weinberger v. Catholic Action of Hawaii/Peace Education Project³³ provided the Supreme Court with its first opportunity since EPA v. Mink³⁴ to rule on the interrelationship between NEPA and the FOIA. In 1975, the Department of the Navy decided to transfer ammunition and weapons stored on the island of Oahu, Hawaii to the West Loch branch of the Lualualei Naval Magazine, located in close proximity to the Honolulu International Airport and two military airports. Subsequently, the Navy prepared an environmental impact assessment (EIA) concerning the environmental effects of the planned relocation. The EIA, which made no mention of nuclear weapons storage, concluded that the construction of additional facilities at a site where conventional weapons had been stored for 20 years would have no significant environmental impact, and that a site-specific EIS was therefore not required. In 1978, the Navy prepared a separate "candidate" EIS entitled "Nuclear Aspects of Naval Systems Storage," that discussed in general terms, without reference to any specific storage site, the hazards connected with storage of nuclear warheads. It did not discuss the likelihood or potential effects of nuclear explosions resulting from sabotage or an accident caused by an airplane crash into a storage facility.

Several groups and individuals living near the newly expanded storage facility sought to enjoin the Navy from using the facility until it completed an EIS examining the environmental effects of storing nuclear weapons there. They argued that neither the EIA nor the "candidate" EIS considered the enhanced risk of nuclear accidents due to the proximity of three airports, the effects of a nuclear accident on the surrounding population and environment, or the effects of the continual release of low-level radiation from the storage of nuclear weapons near populated areas.

The district court agreed that the construction and use of the storage facilities at West Loch constituted major federal action within the meaning of § 102 of NEPA, but concluded that the Navy had complied with NEPA "to the fullest extent possible."³⁵ Complete compliance with NEPA was not possible since an EIS would include a discussion of the presence, number, and location of atomic [12 ELR 10010] weapons, the design and capacities of such weapons, and security measures and devices incident to the weapons, thus conflicting with the security provisions of the Atomic Energy Act (AEA)³⁶ and with various federal regulations governing the disclosure of restricted and confidential information.³⁷

In Catholic Action of Hawaii/Peace Education Project v. Brown,³⁸ the Ninth Circuit reversed. While accepting the Navy's argument that it could not publicly disclose information regarding the presence or absence of nuclear weapons at West Loch and still preserve the secrecy required by the AEA, the court did not agree that the preparation of an EIS was precluded. The court recognized that although the parties had stipulated that the facilities are capable of storing nuclear weapons, the EIS need not imply that a decision to store has been made nor must it reveal to the public specific information regarding nuclear weapons. In the court's view, the EIS could hypothesize, without conceding, that the facilities would store nuclear weapons. In that way, the EIS could be disclosed to the public without impinging on national security. In addition, the EIS, supplemented by internal use of additional information, would further the goal of NEPA to ensure that the Secretary of the Navy is adequately informed of the environmental consequences of a choice to store nuclear weapons at the site.

In Catholic Action the Supreme Court rejected both the Ninth Circuit's rationale and its result. Justice Rehnquist, writing for the majority, began with a discussion of the dual functions of NEPA and the EIS requirement — to inject environmental considerations into federal agency decisionmaking and to inform the public that agencies have considered the environmental impacts of their actions. He pointed out, however, that these two goals, though compatible, are not necessarily coextensive. The second function, public disclosure, is expressly constrained by the FOIA. While Justice Rehnquist speculated that FOIA exemption 3, which authorizes the withholding of documents "specifically exempted from disclosure by statute," was applicable to the facts of the case, he found exemption 1, which exempts properly classified information, adequate to resolve the matter.

Since virtually all information relating to the storage of nuclear information is classified, it is exempt from the public disclosure requirements of NEPA under that exemption of the FOIA. Therefore, the Ninth Circuit erred by creating a "hypothetical" EIS simply to satisfy what it perceived as the public disclosurerequirement of NEPA. Where NEPA's disclosure goals run afoul of the FOIA's secrecy provisions, there is no need for courts to strike a balance between the two because Congress has already done so: the FOIA controls. Under FOIA, the Navy may withhold an EIS rather than prepare a "hypothetical" EIS. Thus, in this case, even if an EIS had been prepared it would not have to be disclosed.

However, Justice Rehnquist continued, this is not to say that an EIS needed to be prepared in this case. He rejected the Ninth Circuit's determination that the Navy must prepare an EIS simply because the facility is nuclear capable. Under the rule established in Kleppe v. Sierra Club,³⁹ more than mere "contemplation" of an action is needed to constitute a "proposal." Only by proposing to actually store nuclear weapons would the Navy trigger the EIS requirement, but in this case there had been no such proposal. Since the Navy can neither admit nor deny that it proposes to store nuclear weapons at the site, "it has not been and cannot be established that"⁴⁰ an EIS is required.

Justice Rehnquist concluded that the question whether or not the Navy has complied with NEPA "to the fullest extent possible" as "beyond judicial scrutiny" under these facts. For public policy reasons, suits involving such highly confidential data cannot be maintained in federal court.⁴¹

Justice Blackmun, joined by Justice Brennan, concurred in the Court's decision but declared it unnecessary to rule that the Navy's compliance with NEPA is beyond judicial scrutiny or to address the applicability of FOIA case law. Instead, Justice Blackmun found the law "relatively simple and straightforward." The Navy must prepare an EIS on all proposals for major federal actions significantly affecting the environment. No exception is made in NEPA for a confidential or classified proposal. However, if disclosing the contents, or even the existence, of the EIS will reveal properly classified materials, the Navy need not publish the document. Department of Defense and CEQ regulations provide that classified information may be restricted from public disclosure but do not suggest that classified proposals are exempt from NEPA's EIS requirement. Justice Blackmun found convincing the Navy's argument that in this case even a "hypothetical" EIS would disclose confidential information: thus it need not be disclosed under the FOIA's first exemption. He concurred because respondents, due to their inability to obtain classified information, had failed to establish the existence of a proposal, and thus the need for an EIS.

Discussion

Though the opinion in Catholic Action was inartfully structured and may have wandered, as Justice Blackmun suggested in his concurring opinion, into separation-of-powers' issues that are only questionably germane, the case was correctly decided. The Court reached a narrow holding that does no violence to established NEPA principles. However, the lack of clarity in the opinion on several key points raises questions about the precise nature of NEPA's proper application to classified military actions.

The lesson of Catholic Action is that to the extent an EIS involves properly classified information, it need not be disclosed under exemption 1 of the FOIA. The key issue is not whether NEPA applies to military actions, but the extent to which the EIS process may be modified in order to safeguard national security information protected from disclosure by exemption 1. Depending on the [12 ELR 10011] circumstances, the FOIA may call for partial disclosure or no disclosure. Thus, the analysis is two-fold. The threshold question is whether the mere existence of the proposal can be admitted or denied without revealing classified information. If not, then the question of compliance with NEPA is "beyond judicial scrutiny" because it runs afoul of the FOIA. NO EIS need be released and no related lawsuits can be maintained.

Such situations, however, are likely to be very rare. In the vast majority of major military endeavors, at least those likely to result in significant environmental effects, the action simply cannot be hidden from public view. It will be either disclosed in defense appropriations, the subject of public controversy, or otherwise so physically obvious that the Department of Defense could not reasonably claim an inability to admit or deny its existence. In these cases, an EIS of some kind must be prepared and circulated through the normal channels.

Questions of content and the extent of disclosure are governed by the FOIA and CEQ and agency regulations. If nonclassified information is segregable from classified materials and properly disclosable, i.e. not subject to another exemption, it must be released to the public. In either case, it is up to the military to determine whether the information at issue is disclosable; but one the existence of a proposal is established, an EIS must be prepared and disclosed even though it touches on military secrets.

But in rare instances, such as those involving nuclear weapons storage or handling, in which an environmentally significant enterprise can and must be kept strictly confidential, Catholic Action suggests that the normal NEPA processes may be shielded.⁴² In such cases, the existence of the EIS, like the existence of the project itself, may be kept confidential in order to avoid revealing classified information.

In requiring a "hypothetical" EIS, the Ninth Circuit erred by assuming that a proposal existed when in fact the Navy could neither admit nor deny that it had proposed the only action which triggers NEPA — the storage of nuclear weapons at the West Loch site. The Supreme Court properly relied on Kleppe, which held that an EIS need not be prepared for a project that is contemplated; it must be proposed. Since the very existence of a proposal to store nuclear weapons is exempt from disclosure under exemption 1, no court could determine whether an EIS is required. Unfortunately, the court's rejection of the Ninth Circuit's "hypothetical" EIS may throw cold water on agencies' efforts to find creative ways of accommodating both the decisionmaking and public disclosure requirements of NEPA where only partial secrecy is required. Consideringthat impact statements are inherently "hypothetical" to a large extent, the use of hypotheticals seems a valid and possibly preferable alternative to the practice of crudely excising from EISs all segments bearing on classified information. The Supreme Court's admonition that judges should not demand EISs of this kind from agencies should not be read to mean that agencies themselves lack authority under NEPA to devise creative ways to harmonize the competing goals of NEPA and the FOIA.

A "National Security" Exemption from NEPA?

Justice Rehnquist's stated concern with the need to protect the "national security"⁴³ might suggest to some that Catholic Action opens the door to a large, if not boundless "national security" exemption from NEPA. Such concerns seem unwarranted. A better reading of the opinion would not overlook its repeated reaffirmation of the close link between NEPA and the FOIA. It is clear that Justice Rehnquist was concerned primarily not with vague notions of national security but with the disclosure of classified military information, a point reaffirmed by the concurring opinion of Justice Blackmun.⁴⁴

An equally important question concerns those rare cases in which an agency's compliance with NEPA is "beyond judicial scrutiny." Does this mean that in those cases no EIS is required under NEPA? Stated differently, in an action such as the storage of nuclear weapons at the West Loch facility, would an "internal" EIS be required, even though neither its existence nor contents would be revealed to the public? Although Justice Rehnquist went to some length to avoid directly answering that question,⁴⁵ the answer appears to be "yes." As the concurrence noted, he rather "obliquely" stated that if the Navy proposes to store nuclear weapons, Department of Defense regulations require the preparation of an "internal" EIS. The implication is that NEPA does as well. That, at least, is the best reading of the statute on its face, which sets limits on agencies' duty to disclose but not their duty to prepare EISs. As a practical matter, of course, an "internal" EIS offers little assurance to those concerned with the environmental effects of a military action, since they are shut out of the NEPA process altogether. Lawsuits alleging the failure to prepare an EIS on such actions would apparently be subject to dismissal for failure to state a claim on which relief can be granted. Moreover, by screening the agency's environmental review from its public audience, the secret EIS approach also deprives the proponents of environmental protection within the agency of their strongest allies in their efforts to ensure that mission-oriented program offices adhere to the requirements of NEPA. Nevertheless, as the dissenters in Catholic Action pointed out

the public's inability to participate in military decisionmaking makes it particularly important that, in cases such at the one before us, the EIS "serve practically as an important contribution to the decisionmaking process."⁴⁶

Conclusion

As the first Supreme Court opinion to elaborate on the interplay of the FOIA and NEPA, Catholic Action provides needed advice to federal agencies concerning the [12 ELR 10012] disclosure of confidential information, particularly military secrets, within impact statements. The Court viewed the facts and the law with commendable clarity, and avoided the mistakes made by the Ninth Circuit. The tension between the dual statutory goals of disclosure and confidentiality need not, the Court correctly pointed out, be resolved by the courts on a case-by-case basis. Rather, the courts should respect the balance that has already been struck by Congress between the FOIA and § 102(2)(C) of NEPA. That balance seems a fair one, and one which should not limit the effectiveness of EISs significantly.

1. 42 U.S.C. §§ 4321-4361, ELR STAT. & REG. 41009.

2. 5 U.S.C. § 552, ELR STAT. & REG. 41015.

3. 50 U.S.L.W. 4027, 12 ELR 20098 (Dec. 1, 1981).

4. 5 U.S.C. § 552(b), ELR STAT. & REG. 41015.

5. 5 U.S.C. § 552(b)(4), (b)(5), & (b)(3), ELR STAT. & REG. 41016.

6. 5 U.S.C. § 552(b)(1), ELR STAT. & REG. 41015.

7. see Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289, 2 ELR 20740 (8th Cir. 1972).

8. 42 U.S.C. § 4332(2)(C), ELR STAT. & REG. 41010.

9. 50 U.S.L.W. at 4029, 12 ELR at 20098-99.

10. 40 C.F.R. § 1506.6(f), ELR STAT. & REG. 46029.

11. 40 C.F.R. § 1507.3(c), ELR STAT. & REG. 46031. Department of Defense NEPA regulations similary declare that "[t]he fact that a proposed action is of a classified nature does not relieve the proponent of the action from complying with the NEPA," but in those circumstances the EIS "shall be prepared, safeguarded and disseminated in accordance with the requirements applicable to classified information." 32 C.F.R. § 775.5.

12. There were seven rulings in this case, three issued by the district court without opinion, three by the court of appeals, and a denial of an injunction by the Supreme Court, with which three justices filed a written dissent.

13. 463 F.2d 783, 1 ELR 20469 (D.C. Cir. 1971).

14. The plaintiffs sought documents sent to the Underscretary of State including an unclassified memorandum from CEQ, and letters from the Administrator of EPA and the Chairman of CEQ, both classified top secret. Plaintiffs clearly indicated that they sought no information about military or diplomatic secrets.

15. Committee For Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 788, 1 ELR 20529 (D.C. Cir. 1971).

16. 464 F.2d 742, 1 ELR 20527 (D.C. Cir. 1971), rev'd and remanded, 410 U.S. 73, 3 ELR 20057 (1973).

17. 5 U.S.C. § 552(b)(1) (1974).

18. 410 U.S. at 81, 3 ELR at 20059.

19. 5 U.S.C. § 522(b)(5), ELR STAT. & REG. 41016.

20. The 1974 amendments substituted the phrase "specifically authorized under criteria established by an Executive order to be kept secret …" for the phrase "specifically required by Executive order to be kept secret …" and added "and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552, ELR STAT. & REG. 41016. See W. RODGERS, ENVIRONMENTAL LAW 61-62 (1977).

21. 42 U.S.C. § 4332(2)(C), ELR STAT. & REG. 41010.

22. 499 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971).

23. 449 F.2d at 1114, 1 ELR at 20348. See also Natural Resources Defense Council, Inc. v. Berklund, 458 F. Supp. 925, 9 ELR 20047 (D.D.C. 1978), aff'd 609 F.2d 553, 9 ELR 20761 (D.C. Cir. 1979).

24. 426 U.S. 776, 6 ELR 20528 (1976). See also Louisiana Power & Light Co. v. Federal Power Commission, 557 F.2d 1122, 7 ELR 20672 (5th Cir. 1977) (early deadline for preparation of emergency regulations under the Natural Gas Act); Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission, 647 F.2d 1345, 11 ELR 20266 (D.C. Cir. 1981) (concurring opinion) (deeming time needed to prepare adequate EIS for nuclear power plant not sufficient to meet timetable of Nuclear Non-Proliferation Act).

25. 657 F.2d 829, 11 ELR 20871 (6th Cir. 1981).

26. But see Catholic Action of Hawaii/Peace Education Project v. Brown, 468 F. Supp. 190, 9 ELR 20625 (D. Hawaii 1979) (accepting Navy's argument that security provisions of the Atomic Energy Act conflict with NEPA).

27. See Concerned About Trident v. Schlesinger, 400 F. Supp. 454, 6 ELR 20047 (D.D.C. 1975), aff'd sub nom. Concerned About Trident v. Rumsfeld, 555 F.2d 817, 6 ELR 20787 (D.C. Cir. 1976); but see McQueary v. Laird, 449 F.2d 608, 1 ELR 20607 (10th Cir. 1971).

28. 555 F.2d 817, 6 ELR 20787 (D.C. Cir. 1976).

29. 555 F.2d at 823, 6 ELR at 20790.

30. 463 F.2d 788, 1 ELR 20529 (D.C. Cir. 1971).

31. See Committee for Nuclear Responsibility, Inc. v. Seaborg (Cannikin III), 463 F.2d 796, 798, 1 ELR 20532, 20534 (D.C. Cir. 1971); see also Committee for Nuclear Responsibility, Inc. v. Schlesinger, 404 U.S. 917, 1 ELR 20534 (1971) (dissent from the denial of an injunction).

32. 463 F.2d at 799, 1 ELR at 20534.

33. 50 U.S.L.W. 4027, 12 ELR 20098 (Dec. 1, 1981).

34. 410 U.S. 73, 3 ELR 20057 (1973).

35. Catholic Action of Hawaii/Peace Education Project v. Brown, 468 F. Supp. 190, 9 ELR 20625 (D. Hawaii 1979).

36. 42 U.S.C. § 2014(y), ELR STAT. & REG. 41205.

37. These include security classification guides prepared jointly by the Department of Defense and the Department of Energy. See 468 F. Supp. at 193.

38. 623 F.2d 602, 10 ELR 20683 (9th Cir. 1980).

39. 427 U.S. 390, 6 ELR 20532 (1976).

40. 50 U.S.L.W. at 4029, 12 ELR at 20099.

41. See Totten v. United States, 92 U.S. 105 (1875); United States v. Reynolds, 345 U.S. 1 (1953).

42. This is described as a suggestion rather than a holding since the opinion, when scrutinized carefully, holds only that the plan to modify the West Loch facility did not constitute a "proposal" to store nuclear weapons under § 102(2)(C).

43. Justice Rehnquist stated that "due to national security reasons" the Navy could neither admit nor deny the existence of a proposal to store nuclear weapons at West Loch. 50 U.S.L.W. at 4029, 12 ELR at 20099.

44. 50 U.S.L.W. at 4030, 12 ELR at 20100.

45. Since Justice Rehnquist found that whether or nor the Navy has complied with NEPA is beyond judicial scrutiny, he did not need to reach the "internal" EIS question.

46. 50 U.S.L.W. at 4030, 12 ELR at 20100.