Lamm v. Weinberger

Nos. 86-1458; -1517 (819 F.2d 1445, 25 ERC 2049) (8th Cir. May 21, 1987)

The court holds that the National Environmental Policy Act (NEPA) generally does not conflict with the 1984 Department of Defense (DOD) Authorization Act, and thus in basing the MX missile the Air Force must fully comply with NEPA to the extent it exercises discretion in choosing among deployment options left open by Congress. The 1984 DOD Authorization Act explicitly required that an EIS be prepared in accordance with NEPA, and shows no entanglement between this requirement and the foreign policy decision of Congress to authorize deployment of the missiles. Federal projects are generally subject to judicial review for NEPA compliance, and there is no national defense exception from NEPA. Consequently, the court holds, MX missile deployment is also subject to judicial review for NEPA compliance. The Air Force's decision is not exempt from judicial review under the political question doctrine, since the court will review only the Air Force's compliance with NEPA, not the underlying military decision to deploy the MX missile.

The court holds that the Air Force need not consider alternative defense systems as to 54 of the proposed 100 MX missiles. As to 21 of these 54 missiles, the Air Force need not consider alternative basing modes other than in existing Minuteman silos. Congressional decisions and authorizations for action are not subject to NEPA, and the 1984 DOD Authorization Act authorizes appropriations for 21 MX missiles to be deployed in existing Minuteman silos, while the 1985 and 1986 DOD Appropriations Acts authorze an additional 33 MX missiles without specifying how they are to be deployed. Moreover, the environmental impacts of intentional use of the missiles need not be evaluated in an EIS, since the 1984 DOD Authorization Act explicitly limited the EIS for the first 21 missiles to their deployment and peacetime uses, and an EIS analyzing the intentional use of the remaining missiles would impinge on Congress' power to declare war and the President's function as commander-in-chief.

The court holds that the environmental impacts of an accident must be evaluated, including the possibility of earthquakes. Moreover, the Air Force must consider alternatives to deployment of the 46 missiles that have not yet been authorized by Congress, and alternative basing modes for the 79 missiles not covered by the approval of Minuteman silo deployment in the 1984 DOD Authorization Act. The court also holds that the EIS must consider the environmental impacts of removal of the existing Minuteman missiles from their silos to make room for the MX missiles, transportation of MX missile components from place of manufacture to Warren Air Force Base, defensive measures for the MX missiles, and the project's activities in Colorado.

Finally, the court holds that declaratory and mandatory injunctive relief is available for all 100 proposed MX missiles. Prohibitory injunctive relief is only available for the 79 missiles not covered by the 1984 DOD Authorization Act, since 10 of the 1984 Act's 21 missiles have already been deployed, and the 1984 Act directed that the Air Force proceed promptly with deployment following publication of the EIS.

A judge dissenting in part would not require the EIS to evaluate alternative basing modes for any of the 100 proposed missiles. The dissent reads the majority opinion to require an evaluation of the effects of an intentional launch of some of the missiles but disagrees with this requirement.

[A related decision appears at 13 ELR 30573.]

Counsel for Appellants
Gerald S. Citera
Wilmer, Cutler & Pickering
2445 M St. NW, Washington DC 20037-1420
(202) 663-6000

Counsel for Appellees
Thomas E. Hookano
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and CONMY, Chief District Judge.^*

[17 ELR 20985]

BRIGHT, Senior Circuit Judge.

These consolidated appeals arise from the district court's dismissal, as a nonjusticiable political question, of a challenge to the adequacy of the MX Missile¹ project's Final Environmental Impact Statement (FEIS) under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321, 4331-35, 4341-47 (1970). Appellants in this case are various environmental and anti-nuclear organizations, as well as the Governor of Colorado and several Colorado municipalities.

A. The MX Missile Project

The MX missile is an advanced intercontinental ballistic missile (ICBM) capable of delivering up to ten independently targeted and highly accurate nuclear warheads. The ICBM forces are part of a strategic triad consisting of ICBMs, submarine-launched ballistic missiles, and bombers. Although the MX missile project was conceived by the Department of Defense in the early 1970's, uncertainty over the mode of the missiles' deployment resulted in Congress' routine refusal to authorize procurement funds.

In the 1984 Department of Defense Authorization Act, Congress ended this uncertainty by adopting a bipartisan presidential commission recommendation to deploy the twenty-one MX missiles authorized by that Act in the silos currently housing the Minuteman III missiles.² The 100 Minuteman III missile silos located in Nebraska, Wyoming, and Colorado are part of the 319th and 400th Strategic Missile Squadrons supported by the Francis E. Warren Air Force Base.

Besides dictating the mode for deployment of the twenty-one MX missiles, section 110 of the 1984 Defense Act required that ten of those twenty-one missiles be deployed by December 31, 1986, and that the deployment of all twenty-one missiles authorized by the Act comply with NEPA. The statute directs the Secretary of the Air Force to "prepare a full draft and final environmental impact statement" (FEIS) on the MX missiles' "proposed deployment and peacetime operation," "in accordance with all terms, conditions, and requirements" of NEPA. The FEIS was to be published not later than January 31, 1984, following which, the Secretary was to proceed promptly with the twenty-one missiles' deployment.

Since 1984, Congress has enacted the 1985 and 1986 Department of Defense Authorization Acts. The 1985 Act authorized funds to procure an additional twenty-one missiles,³ and the 1986 Act an additional twelve missiles.⁴ Congress did not condition authorization of these thirty-three missiles upon the deployment conditions specified in section 110 of the 1984 Defense Act.

On October 7, 1983, the Secretary issued a draft environmental impact statement for all 100 MX missiles proposed by the President for eventual deployment. After a forty-five-day public comment period during which public hearings were held in Wyoming and Nebraska, the FEIS was issued on January 30, 1984. The Air Force deployed the first ten missiles prior to the December 31, 1986 deadline.

B. The Proceedings Below

In separately filed complaints consolidated in the district court, Richard D. Lamm, Governor of Colorado, and various counties and municipalities in the State of Colorado (Colorado), together with Friends of the Earth, Inc., Committee for a Sane Nuclear Policy, Council for a Livable World and Environmental Action, Inc. (hereinafter collectively referred to as FOE, et al.) launched a broad-based challenge to the MX Missile project's FEIS.⁵ In its complaint, FOE, et al. alleged that the FEIS failed to adequately discuss either alternative basing modes and defense systems, or the environmental impacts resulting from the accidental or intentional use of the MX missiles.⁶ In its turn, Colorado alleged the [17 ELR 20986] FEIS' failure to discuss the environmental impacts of the project upon the State of Colorado.⁷ FOE, et al. and Colorado requested a mandatory and prohibitory injunction, as well as declaratory relief.⁸

On January 26, 1985, the Air Force filed a motion for judgment on the pleadings. On April 25, 1985, plaintiffs in both actions jointly filed a motion for partial summary judgment. The Air Force then crossmoved for summary judgment. By order dated February 20, 1986, the district court dismissed both actions on the pleadings under the political question doctrine.

The district court held, inter alia, that because FOE, et al. and Colorado sought to enjoin the MX Missile project until the Air Force revised or supplemented the project's FEIS to include a discussion of alternative basing modes, their claims raised nonjusticiable political questions. The court found a contradiction between NEPA, "which would otherwise require consideration of alternative basing modes," and section 110 of the 1984 Defense Act, wherein Congress unconditionally directed that the MX missiles be deployed in existing Minuteman missile silos. Western Solidarity, Inc. v. Friends of the Earth, Inc., No. CV84-L-280, slip op. at 10 n. 3 (D.Neb. Feb. 20, 1986). "Because Congress has dictated the manner of deployment," the court found, "other modes need not be considered." Id. The court cited Concerned About Trident v. Rumsfeld, 555 F.2d 817, 822 (D.C.Cir. 1976) and Friends of the Earth, Inc. v. Weinberger, 562 F. Supp. 265 (D.D.C.1983), appeal dismissed, 725 F.2d 125 (D.C.Cir. 1984), in support of this contention. In dismissing the plaintiffs' complaint under the political question doctrine, the court concluded that "the relief requested in both cases at bar, if granted, would affect the foreign policy and military decisions that are delegated to the Executive and Legislative branches of government." Western Solidarity, Inc., slip op. at 7.

Colorado and FOE, et al. then brought this appeal, contending that the MX Missile project's FEIS is subject, like any other FEIS, to judicial review. Appellants argue that judicial review of their claims is not precluded by the political question doctrine because they do not challenge the President's and Congress' political decision to deploy the MX missiles. They additionally argue that judicial review is not foreclosed because, contrary to the district court's contention, the relief they request under NEPA does not conflict with Congress' mandate in section 110 of the 1984 Defense Act. First, appellants argue that section 110 does not address the issues forming the bases of their complaints regarding the FEIS' inadequacies. Their claims, they argue, cover only those aspects of the deployment procedures over which the Air Force retains discretion. Second, appellants argue that the granting of the relief they request — an order declaring the FEIS inadequate and requiring the Air Force to supplement or revise the FEIS — does not conflict with section 110's deployment mandate.

In opposition, the Air Force contends that Congress' requirement that the MX Missile project comply with NEPA in section 110 of the 1984 Defense Act is inextricably entangled with Congress' deployment mandate. The project's compliance with NEPA is consequently reviewable, the Air Force contends, only to the extent Congress' deployment decision is reviewable. Because the deployment decision is nonjusticiable under the political question doctrine, the Air Force concludes that judicial review of the FEIS under NEPA is severely limited if not altogether eliminated. The Air Force also contends that the relief requested by appellants is both meaningless, as a discussion of alternative basing modes will not change Congress' deployment mandate, and obstructionist, as any type of injunction will jeopardize the military goals of the project.

II.

A. Issues Raised On Appeal

The questions raised by these appeals are extremely narrow. We need only decide first, the extent to which Congress intended the MX Missile project to comply with NEPA, and second, the extent to which the project's compliance with NEPA, as manifested by the project's FEIS, is subject to judicial review. If we decide that appellants' NEPA claims are justiciable, we are urged by the Air Force to decide them on the merits.

After careful review of the issues, we believe that Congress clearly intended that the MX Missile project fully comply with NEPA. We therefore reject the Air Force's entanglement argument and hold that this compliance is justiciable. The reviewability of the project's FEIS is limited in one respect, however: review is confined to those aspects of the project over which the Air Force has discretion to choose the least environmentally harmful course of action.

In setting forth this limitation, we agree with the district court that there exists a "contradiction" between NEPA and section 110 of the 1984 Defense Act. Those of appellants' claims that seek discussion of alternatives under NEPA regarding deployment decisions already made by Congress must be rejected as nonjusticiable. We disagree with the district court, however, both as to the legal basis for holding these claims nonjusticiable, and the extent to which Congress' mandate in section 110 of the 1984 Defense Act conflicts with appellants' claims. We believe that those of the appellants' claims falling within the scope of these statutory mandates are nonjusticiable because they request alteration of final congressional decisions, not because they raise political questions. We furthermore believe, in contrast to the district court, that all counts of Colorado's complaint and one count of FOE, et al.'s complaint lie outside the scope of the deployment decisions made by Congress.

Finally, we decline to reach the merits of appellants' justiciable NEPA claims until they are properly considered by the district court.

B. Applicability of NEPA to the MX Missile Project

The explicit language of section 110 [17 ELR 20987] of the 1984 Defense Act reflects that Congress intended that the MX Missile project fully comply with NEPA. Section 110(b)(1) reads:

The Secretary of the Air Force shall prepare a full draft and final environmental impact statement in accordance with all terms, conditions, and requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) on the proposed deployment and peacetime operations of MX missiles in the Minuteman silos referred to in subsection (a). The final environmental impact statement on the proposed deployment of such missiles shall be published not later than January 31, 1984.

Pub.L. No. 98-94, § 110, 97 Stat. 614, 621 (1983).⁹

Congress' mandate that the Air Force prepare an EIS for the MX Missile project is a discrete and independent requirement of section 110 of the 1984 Defense Act. The language of the Act does not reveal an entanglement between this requirement and the foreign policy decision to deploy the MX missile. The Report of the Senate Armed Services Committee seems to underscore this point by clarifying that the announcement of a completion date for the EIS is not intended to denegrate the quality of the EIS. The Report states,

The stipulation in law of a date certain for completing this EIS is not intended in any way to compromise the integrity or quality of this statement. Rather, it is designed to ensure that a reasonably comprehensive and thorough assessment of the environmental impacts of this deployment, if any, are explored * * *.¹⁰

Congress obviously intended that NEPA apply to the MX Missile project in a similar fashion as NEPA applies to the building of a bridge, the construction of a highway, or any other major federal project. See Iowa Citizens for Envtl. Quality, Inc. v. Volpe, 487 F.2d 849, 851 (8th Cir.1973).

C. Judicial Review of the MX Missile Project's FEIS

A federal project's compliance with NEPA is generally subject to judicial review. The primary purpose of NEPA's requirement that agencies prepare an EIS is to allow judicial review of an agency's compliance with NEPA. "[I]t requires an agency to compile an environmental record from which a court can determine whether the agency has made a good faith effort to consider the values NEPA seeks to protect." Minnesota Pub. Interest Research Group v. Butz, 541 F.2d 1292, 1299 (8th Cir.1976), cert. denied, 430 U.S. 922, 97 S. Ct. 1340, 51 L. Ed. 2d 601 (1977). See also Sierra Club v. Morton, 510 F.2d 813, 820 (5th Cir.1975); Calvert Cliffs' Coordinating Comm., Inc. v. United States Atomic Energy Comm'n, 449 F.2d 1109, 1114 (D.C. Cir.1971).

The MX Missile project's status as a major military project does not alone exempt its compliance with NEPA from judicial review. There is no "national" defense exemption from NEPA. Jackson County v. Jones, 571 F.2d 1004, 1007 (8th Cir.1978); Concerned About Trident v. Rumsfeld, 555 F.2d 817, 823 (D.C.Cir.1976); Save the Niobrara River Ass'n, Inc. v. Andrus, 483 F. Supp. 844, 863 (D.Neb.1977). Although some courts have refrained from issuing injunctions in cases where national defense was concerned, those cases were heard on the merits. Wisconsin v. Weinberger, 745 F.2d 412 (7th Cir.1984) (grant of injunction preventing further work on low frequency submarine communications system reversed); Concerned about Trident, 555 F.2d at 817 (action to enjoin construction of support facility for Trident submarine program upheld); Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 796 (D.C.Cir.1971) (district court's refusal to enjoin underground nuclear explosion upheld).¹¹

Similarly, appellants' challenges to the adequacy of the MX Missile project's FEIS are not exempt from review under the political question doctrine. This is because their claims ask review only of the Air Force's compliance with NEPA, and do not question the underlying military decision to deploy the MX missile. As stated by the Third Circuit, "judicial review of agency decision-making for compliance with the procedural requirements of NEPA, does not sufficiently implicate the policies underlying nonreviewability of the substantive decision which triggers § 102(2)(C) to justify a finding that Congress intended to insulate the decisionmaking process from judicial review." Shiffler v. Schlesinger, 548 F.2d 96, 101 (3d Cir. 1977).

Moreover, in contrast to appellants' claims, those dismissed as raising nonjusticiable political questions typically challenge strategic military decisions made by the President and Congress. Crockett v. Reagan, 720 F.2d 1355 (D.C.Cir.1983), cert. denied, 467 U.S. 1251, 104 S. Ct. 3533, 82 L. Ed. 2d 839 (1984) (challenging legality of United States military assistance to El Salvador); DaCosta v. Laird, 471 F.2d 1146 (2d Cir.1973) (challenging Presidential directive ordering mining of North Vietnam ports); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir.1973), cert. denied, 416 U.S. 936, 94 S. Ct. 1935, 40 L. Ed. 2d 286 (1974) (challenging continuation of United States military activities in Cambodia); Greenham Women Against Cruise Missiles v. Reagan, 591 F. Supp. 1332 (S.D.N.Y.1984), aff'd, 755 F.2d 34 (2d Cir.1985) (challenging United States deployment of cruise missiles in England). In Greenham Women, a case relied upon by the district court in dismissing appellants' claims, the plaintiffs challenged the decision to place missiles in Greenham Common, England, on the ground that deployment would substantially increase the risk of nuclear war and accident.

Here neither FOE, et al. nor Colorado question Congress' and the President's decision to deploy the MX missile. In the district court, appellants "did not ask the district court to decide the wisdom, morality, or efficacy of the decision to deploy the missiles. Nor did they question tactical or strategic military decisions."¹² We are reminded that the presence of "issues with significant political overtones does not automatically invoke the political question doctrine." INS v. Chadha, 462 U.S. 919, 942, 103 S. Ct. 2764, 2780, 77 L. Ed. 2d 317 (1983). See also Japan Whaling Ass'n v. American Cetacean Soc'y, U.S. , 106 S. Ct. 2860, 92 L. Ed. 2d 166 (1986). We agree with Colorado that to characterize appellants' FEIS challenges as political [17 ELR 20988] questions misconceives the fundamental informational purposes of the EIS under NEPA. See Minnesota Pub. Interest Research Group, 541 F.2d at 1299.

D. Appellants' Nonjusticiable Claims

Nevertheless, it is well settled that congressional decisions and authorizations for action are not subject to NEPA. League of Women Voters, Inc. v. United States Corps of Eng'rs, 730 F.2d 579, 584 (10th Cir.1984); Minnesota v. Block, 660 F.2d 1240, 1259 (8th Cir.1981), cert. denied, 455 U.S. 1007, 102 S. Ct. 1645, 71 L. Ed. 2d 876 (1982). Because NEPA requires that the federal agency consider alternative courses of action, Farmland Preservation Ass'n v. Goldschmidt, 611 F.2d 233 (8th Cir.1979), it is incompatible with Congressional legislation authorizing one course of action. It follows, therefore, that where Congress has already legislated a course of action regarding a federal project, a party's challenges to the adequacy of that project's EIS are nonjusticiable. Thus, one court has stated that "unlike an agency decision to pursue action which has significant potential environmental effects, a congressional decision that such an action may proceed is not subject to judicial review." Texas Comm. on Natural Resources v. Bergland, 573 F.2d 201, 209 (5th Cir.), cert. denied, 439 U.S. 966, 99 S. Ct. 455, 58 L. Ed. 2d 425 (1978). See also Sierra Club v. United States Army Corps of Eng'rs, 772 F.2d 1043, 1050 (2d Cir.1985); Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 367 (D.C.Cir.), cert. denied sub nom., Atchison, Topeka & Santa Fe Ry. Co. v. Marsh, 454 U.S. 1092,102 S. Ct. 657, 70 L. Ed. 2d 630 (1981); South La. Envtl. Council, Inc. v. Sand, 629 F.2d 1005, 1012 (5th Cir.1980); Kansas ex rel. Stephan v. Adams, 608 F.2d 861, 866-67 (10th Cir. 1979), cert. denied sub nom., Spannaus v. Goldschmidt, 445 U.S. 963, 100 S. Ct. 1651, 64 L. Ed. 2d 238 (1980); Oregon Natural Resources Council v. Marsh, 628 F. Supp. 1557, 1566 n. 12 (D.Or.1986); Hogan v. Brown, 507 F. Supp. 191, 203 (W.D.Ark. 1980), aff'd, 665 F.2d 849 (8th Cir.1981).

This rule is based on both the law governing judicial review of an agency's compliance with NEPA and considerations of separation of powers. Because judicial review is not specifically provided for under NEPA, authority for judicial review is derived from the Administrative Procedure Act. 5 U.S.C. §§ 701-706 (1982) (APA). The APA is directed, as its name implies, to agency action. The Act expressly excludes any grant of a right to judicial review of congressional decisions. Environmental Defense Fund, Inc. v. Corps of Eng'rs, 492 F.2d 1123, 1140 (5th Cir.1974).¹³ Furthermore, the Supreme Court has frequently reminded lower federal courts that fundamental policy questions appropriately resolved in Congress are not subject to reexamination in the federal courts under the guise of judicial review of agency action. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S. Ct. 1197, 1219, 55 L. Ed. 2d 460 (1978).

In the 1984 Defense Act, Congress mandated that the deployment of the first twenty-one MX missiles comply with certain specifications. To the extent appellants' claims request review of these specifications, under the limitations upon judicial review under NEPA mentioned above, they are nonjusticiable. Section 110 of the 1984 Defense Act mandates that the twenty-one MX missiles it authorizes be deployed in the Minuteman III missile silos. Of those twenty-one missiles, section 110 requires that ten be deployed by December 31, 1986. Section 110 furthermore limits the scope of the EIS for these twenty-one missiles to their deployment and peacetime operations. As mentioned earlier, Congress merely appropriated funds for additional MX missiles in the 1985 and 1986 Defense Acts, without either conditioning the funds' expenditure upon the 1984 Defense Act's deployment specifications, or imposing new deployment specifications.

In determining which of appellants' claims are nonjusticiable, we bear in mind that in challenging the MX Missile project's FEIS, appellants challenge the adequacy of the FEIS in assessing the environmental impacts of all 100 missiles proposed for eventual deployment.¹⁴ From our review of the record, we find that only a part of one count of FOE et al.'s complaint, and no counts of Colorado's complaint, conflict with Congress' statutory mandates.

In count III of its complaint, FOE, et al. contends that the FEIS fails to discuss alternative defense systems to the MX Missile project. This claim clearly conflicts with Congress' mandate in the 1984, 1985 and 1986 Defense Acts. In these Acts, Congress authorized appropriation of a total of fifty-four MX missiles. Congress did not, as FOE, et al. seems to contend, authorize procurement of a land-based ICBM, the exact type of which would be decided after review of the environmental impacts of the alternatives. Thus, this claim is nonjusticiable as applied to the fifty-four appropriated MX missiles out of the total 100 MX missiles proposed for deployment.

In count III of its complaint, FOE, et al. also contends that the FEIS fails to discuss the full range of alternative basing modes to the Minuteman III missile silos. As to the twenty-one missiles authorized by the 1984 Defense Act, this issue has similarly been resolved. In that Act, Congress stated that the twenty-one missiles "shall be deployed in existing Minuteman missile silos that are part of the 319th and 400th Strategic Missile Squadrons * * *."

Count II of FOE et al.'s complaint, in which it claims that the FEIS fails to discuss the environmental impacts of the intentional use of seventy-nine of the 100 projected MX missiles, is also nonjusticiable, but on other grounds. An environmental impact analysis of the intentional use of the MX missile necessarily impinges upon Congress' power to declare war and the function of the President as commander in chief of the armed forces. The environmental impact statement contemplated here is limited to the MX missiles' peacetime deployment, not their wartime use. See Greenham Women, 591 F. Supp. at 1338.

E. Appellants' Justiciable Claims

From our review of the record, we determine that the one remaining count of FOE, et al.'s complaint and all counts of Colorado's complaint are justiciable.

In count I of its complaint, FOE, et al. alleges that the FEIS fails to discuss the environmental impacts of the MX missile in case of an accident. FOE, et al. alleges that in cases involving incomplete or unavailable information, a FEIS should include a "worst case" analysis concerning the impact of "an accidental launch,and Acts of God such as earthquakes."¹⁵ Although [17 ELR 20989] apparently not discussing the environmental impact of an earthquake, the FEIS reveals that the deployment area for the MX missiles includes more than one fault system, the most significant being the Wheatland-Whalen fault system. Two of the Minuteman III silos lie within the Wheatland-Whalen fault system, which has the capacity to produce an earthquake of Richter magnitude 7.5, possibly resulting in surface ruptures. A third silo lies along the Wheatland-Whalen fault system's projection. For purposes of FEIS analysis, the Air Force assumed that this fault system is active.

Because this claim does not conflict with Congress' statutory mandates in either the 1984, 1985 or 1986 Defense Acts, we determine it to be justiciable as to all 100 MX missiles, including the ten missiles authorized by the 1984 Defense Act to be deployed by December 31, 1986. The ten deployed missiles are just as vulnerable to accidental launch due to an earthquake or other natural disasters as the remaining ninty missiles yet to be deployed.

Finally, as discussed above, FOE, et al. alleges in count III of its complaint that the FEIS fails to discuss the full range of alternatives to the MX Missile project itself or the deployment of the MX missile in the Minuteman III missile silos.

In Part II-D, we held that FOE, et al.'s claim that the FEIS fails to discuss alternative defense systems to the MX Missile project is nonjusticiable as to the fifty-four MX missiles already authorized by Congress. We believe, however, that this claim is justiciable regarding the remaining forty-six MX missiles proposed, but not yet authorized. Under section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), an Environmental Impact Statement must include a detailed discussion of the alternatives to the proposed action. See, e.g., Farmland Preservation Ass'n, 611 F.2d at 236; Jackson County, 571 F.2d at 1008 n. 4. Because Congress has yet to authorize the remaining MX missiles, the Air Force is still under the obligation to discuss alternatives to the deployment of the remaining forty-six MX missiles rather than an alternative defense system.

In Part II-D, we also held that FOE, et al.'s claim that the FEIS fails to discuss alternative basing modes to deployment of the MX missiles in Minuteman III silos is nonjusticiable as to the twenty-one missiles authorized by the 1984 Defense Act. As to the remaining seventy-nine MX missiles proposed for deployment, however, we believe that count III of FOE, et al.'s complaint is justiciable. An examination of the language and legislative history of the 1984, 1985 and 1986 Defense Acts reveals that this basing mode was mandated by Congress only in the 1984 Defense Act and only as to the twenty-one missiles authorized by that Act. Congress did not decide the basing mode for the thirty-three missiles authorized by the 1985 and 1986 Defense Acts, or the remaining forty-six MX missiles proposed, but not yet authorized.¹⁶ We therefore believe that FOE, et al.'s claim that the FEIS is inadequate because it does not discuss alternative basing modes is justiciable as to all but the twenty-one MX missiles authorized by the 1984 Defense Act.

We believe that all of Colorado's claims regarding the adequacy of the FEIS are justiciable as to all the proposed MX missiles, including the ten missiles already deployed. First, Colorado alleges that the FEIS inadequately considers the environmental impact of the deposturing, or removal of, the Minuteman III missiles. To make room for the MX missiles, the Minuteman III missiles must be removed from their present silos and stored. The removal of the Minuteman III missiles includes the removal of the reentry systems, missile guidance set systems and communications security systems, as well as the Minuteman III missiles themselves. The Minuteman III missiles will then be stored at the Hill Air Force Base in Ogden, Utah. Colorado alleges that, other than cursory statements in the FEIS, the Air Force has provided no information on the environmental impacts of, and appropriate mitigation measures for, removal, handling, transportation and storage of the Minuteman III missiles.

Second, Colorado alleges that the FEIS fails to adequately consider the transportation of the MX missile components from various manufacturing locations to the Warren Air Force Base. Parts of the project are being manufactured at the Martin Marietta Co., southwest of Denver, while other activities relevant to deployment are taking place at the Lowry Air Force Base in Colorado. Colorado alleges that although the FEIS indicates that I-25, a major north-south interstate highway in Colorado, may be used for transportation of the components, it does not address what mitigation measures will be used in case of an accident.

Third, Colorado alleges that the FEIS fails to consider the environmental impacts [17 ELR 20990] of measures to protect the MX missiles from attack. Colorado asserts that these defensive measures are part of the proposed deployment because it is recognized that the MX missiles will be vulnerable to attack in the Minuteman III silos unless the silos are superhardened, an antiballistic missile system is deployed, or a missile system is based deep underground. Accordingly, Colorado alleges that the environmental impacts and corresponding mitigation measures of implementing these measures should have been included in the FEIS.

Fourth, the FEIS is allegedly inadequate in that it fails to properly discuss the environmental impacts of, and mitigation measures for, accidents associated with the project. Here Colorado makes the same allegations as FOE, et al. in count I of its complaint.

Finally, Colorado alleges that the FEIS failsto discuss the project's impact upon the state of Colorado. Although approximately fifty-three of the Minuteman III missile silos that will be used to house the MX missiles are located within its boundaries, Colorado alleges that it was excluded from the FEIS' "area of concentrated study" in which the FEIS prepared a complete environmental analysis. As a result, Colorado alleges that the impacts on Colorado of project-induced population growth, the impact on transportation, the impacts on the critical habitat of four endangered species of fish, and the impact on water supplies were completely excluded.

None of Colorado's claims conflict with congressional mandates in either the 1984, 1985 or 1986 Defense Acts. If the district court finds the MX Missile project's FEIS inadequate as to these issues, the Air Force can implement corresponding environmental mitigation measures. Moreover, the concerns manifested by these claims are of continuing relevancy even after the MX missiles are deployed. We therefore believe that these claims are justiciable as to all of the proposed MX missiles, including the ten missiles deployed prior to December 31, 1986.

F. Relief

We disagree with the district court that the nature of the relief requested by appellants precludes judicial review of their claims. Both FOE, et al. and Colorado request as relief (1) a declaration that the FEIS is inadequate for failure to discuss the environmental impacts of the MX missile raised by their claims; and (2) mandatory injunctive relief in the form of an order requiring that the Air Force revise the MX Missile project's current FEIS or file a supplemental EIS curing the current FEIS' deficiencies. While both FOE, et al. and Colorado requested prohibitory injunctive relief in the district court, FOE, et al. alone maintains this request on appeal.

Certainly declaratory and mandatory injunctive relief are available to appellants on all of their claims regarding the environmental impacts of all 100 proposed MX missiles. Neither form of relief would conflict with Congress' deployment mandate in section 110 of the 1984 Defense Act. Furthermore, because the granting of such declaratory and mandatory injunctive relief under NEPA has an informational purpose, it is available to the appellants regarding their claims of the FEIS' inadequacy concerning the ten MX missiles already deployed. See Pennsylvania Envtl. Council, Inc. v. Bartlett, 454 F.2d 613, 629 (3d Cir.1971) (completion of road in NEPA action does not preclude possibility of equitable decree making right some part of the wrong).

Following our earlier analysis, we hold, however, that prohibitory injunctive relief is not available to appellants to the extent their NEPA claims concern the twenty-one MX missiles authorized by the 1984 Defense Act. For practical considerations, such relief is unavailable regarding the ten missiles already deployed. We also believe, however, that a prohibitory injunction is unavailable to the appellants regarding the remaining eleven missiles authorized by the 1984 Defense Act. The granting of such relief conflicts with Congress' directive in section 110(b)(2) of that Act that the Air Force "shall proceed promptly following the publication of the final environmental impact statement referred to in paragraph (1) with deployment of MX missiles in the missile silos * * *."

Because Congress has not set forth a similar time limitation upon the deployment of the remaining seventy-nine MX missiles, we see no reason why a prohibitory injunction is not available to appellants insofar as their claims concern those seventy-nine missiles.

G. Merits

Review of the substantive merits of appellants' claims exceeds our jurisdiction on appeal. We leave this task for the district court on remand, and we note that our discussion of the issues raised on appeal should not be construed as bearing on the merits of those claims of the appellants which are justiciable.

III.

In conclusion, these cases are remanded to the district court to determine the merits of the appellants' claims held justiciable in Part II-E of this opinion, and, if suitable, to afford appellants such relief as is appropriate on the justiciable issues which we have discussed in Part II-F of this opinion.

* The HONORABLE PATRICK A. CONMY, Chief United States District Judge for the District of North Dakota, sitting by designation.

1. The MX missile was designated the Peacekeeper in the early 1980's. S.Rep. No. 174, 98th Cong., 1st Sess. 111 (1983), U.S.Code Cong. & Admin.News 1983, p. 1081. Because Congress and the Air Force continue to refer to it as the MX missile, we shall also.

2. 1984 Department of Defense Authorization Act, Pub.L. No. 98-94, § 110, 97 Stat. 614, 621-22 (1983) (1984 Defense Act).

Section 110 of the 1984 Defense Act reads as follows:

Sec. 110. (a)(1) Funds appropriated pursuant to the authorization of appropriations in section 103 may be used to procure not more than 21 operational MX missiles for deployment.

(2) MX missiles procured with funds authorized to be appropriated by section 103 shall be deployed in existing Minuteman missile silos that are part of the 319th and 400th Strategic Missile Squadrons and supported by Francis E. Warren Air Force Base, Wyoming. The first ten MX missiles procured for deployment by the Air Force shall be placed on alert status, with appropriate security and logistics facilities in operation, not later than December 31, 1986.

(b)(1) The Secretary of the Air Force shall prepare a full draft and final environmental impact statement in accordance with all terms, conditions, and requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) on the proposed deployment and peacetime operations of MX missiles in the Minuteman silos referred to in subsection (a). The final environmental impact statement on the proposed deployment of such missilesshall be published not later than January 31, 1984.

(2) Notwithstanding any other provision of law, the Secretary of the Air Force (A) may immediately commence planning, facility and equipment designing, surveying, and other predeployment activities with respect to the MX missile, and (B) shall proceed promptly following the publication of the final environmental impact statement referred to in paragraph (1) with deployment of MX missiles in the missile silos referred to in subsection (a).

3. 1985 Department of Defense Authorization Act, Pub.L. No. 98-525, § 110, 98 Stat. 2492, 2504-07 (1984) (1985 Defense Act).

4. 1986 Department of Defense Authorization Act, Pub.L. No. 99-145, § 141, 99 Stat. 583, 603-04 (1985) (1986 Defense Act).

5. The origins of this litigation can be briefly summarized. In April 1984, an organization calling itself Western Solidarity filed a complaint against the Air Force in the United States District Court for the District of Nebraska, challenging the Air Force's decision to deploy the MX missiles. The next day, Richard D. Lamm, Governor of the State of Colorado, and various counties and municipalities within the State of Colorado filed a separate complaint against the Air Force in the United States District Court for the District of Colorado, alleging that the MX Missile project's FEIS violated NEPA. On June 20, 1984, the Colorado district court granted the Air Force's motion to transfer the Colorado case to the Nebraska district court. On June 28, 1984, Friends of the Earth, Inc., Committee for a Sane Nuclear Policy, Council for a Livable World and Environmental Action, Inc. were granted intervention in the Western Solidarity case. At the preliminary pretrial conference on September 28, 1984, the Colorado and Western Solidarity cases were consolidated for trial and discovery.

6. FOE, et al. first alleged that the MX Missile project's FEIS failed to discuss the environmental impact of the missiles in case of accident, including the impacts resulting from an accidental launch and natural disasters such as earthquakes. Second, FOE, et al. alleged that the FEIS failed to discuss the environmental impacts consequent to the use of the MX missile. The limitation on NEPA's requirements imposed by section 110 to "peacetime" use is confined, FOE, et al. contended, to the twenty-one missiles authorized by the 1984 Act. The FEIS, it stated, purports to cover the 100 missiles proposed for eventual deployment. Finally, FOE, et al. argued that the FEIS failed to discuss alternative deployment methods or the possible deployment of defense systems other than the MX Missile project.

7. Colorado alleged that: (1) the Air Force's exclusion of Colorado's officials and residents from meaningful involvement in the environmental impact statement hearings violated NEPA, the Department of Defense Authorization Acts of 1983 and 1984, and the executive orders and regulations issued under these acts; and that the Air Force failed to consider adequately (2) the impact of the missile project upon Colorado's water supply; (3) the impact of the transportation, construction, and storage of MX missile components within the State upon the health and safety of Colorado residents; (4) the consequences of placing the MX missiles on an active geological fault zone; (5) the impact of the MX missile's deployment upon housing, land use, and public services; (6) the impact of the MX missiles' deployment upon Colorado and federal threatened or endangered species; (7) the impacts of the measures that will be necessary to protect the MX missiles from attack, such as superhardening the silos or constructing a protective antiballistic missile system.

8. For relief, FOE, et al. sought a declaration that the FEIS failed to comply with NEPA, and that the Air Force's action in proceeding with the project in light of the FEIS' deficiencies violated NEPA and the Administrative Procedure Act. FOE, et al. also requested an injunction requiring that the Air Force prepare a satisfactory FEIS and a prohibitory injunction enjoining the continuation of any activities upon the MX Missile project until such a document is prepared and considered. Colorado also requested a declaration that the FEIS and its preparationwere inadequate.

Colorado requested an order requiring that the Air Force (1) prepare a Supplemental Environmental Impact Statement (SEIS) that includes an analysis of the missile project's impact on Colorado; and (2) implement appropriate measures to mitigate impacts in the State of Colorado. Finally, Colorado requested an injunction preventing an irretrievable commitment of resources to the project until a SEIS is completed.

9. It is noteworthy that Congress could have exempted the MX Missile project from the requirements of NEPA, but expressly chose not to do so. See Environmental Defense Fund v. Froehlke, 473 F.2d 346, 355 (8th Cir.1972); Sierra Club v. Froehlke, 630 F. Supp. 1215, 1225 (S.D.Tex.1986). Significantly, in an amendment to the 1983 Department of Defense Authorization Act, Congress did exempt the President from preparing an environmental impact statement in accordance with NEPA when it required that he assess the environmental impact of possible basing sites for the MX missile. 1983 Department of Defense Authorization Act, Pub.L. 97-377, 96 Stat. 1830, 1833, 1846-48 (the Jackson Amendment). This exemption was expressly dropped from the 1984 Defense Act.

10. S.Rep. No. 174, 98th Cong., 1st Sess. 115 (1983), U.S.Code Cong. & Admin.News 1983, p. 1081. The Senate and House passed different bills, and the differences were resolved in conference. The conference committee adopted the Senate provision concerning the EIS.

11. Weinberger v. Catholic Action, 454 U.S. 139, 102 S. Ct. 197, 70 L. Ed. 2d 298 (1981) and Laine v. Weinberger, 541 F. Supp. 599 (C.D.Cal.1982), cited by the Air Force, do not support a contrary conclusion. Although the Supreme Court stated in Catholic Action that whether or not the Navy complied with NEPA "to the fullest extent possible" was beyond judicial scrutiny, id. at 147, 102 S. Ct. at 203, the issue in that case was not justiciability, but whether the Navy should prepare an EIS for unspecified plans for federal action. Due to national security concerns, it could not be established that the Navy was storing nuclear weapons. Thus, its failure to prepare an EIS showed no violation of NEPA. Id. In Laine, the court also held that national security concerns barred the plaintiffs from showing that the Navy was storing nuclear weapons at a naval weapons station. Thus the Navy's alleged activity could not be labeled a "major federal action" triggering the applicability of NEPA. 541 F. Supp. at 604. In neither case did the court refuse to review the agency's actions for compliance with NEPA on the basis that the governmental action raised issues of national defense.

12. Brief of FOE, et al. at 15.

13. The APA states: "'agency' means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include — (A) the Congress * * *." 5 U.S.C. § 701 (1982).

14. We recognize that Congress has not yet appropriated funds to procure the remaining 46 missiles proposed for eventual deployment. Because the plan for the deployment of all 100 MX missiles was sufficiently specific to warrant the preparation of an EIS on the entire project, however, we hold that judicial review of the EIS covering all 100 of the proposed MX missiles is appropriate. The Supreme Court has stated that "the moment at which an agency must have a final statement ready 'is the time at which it makes a recommendation or report on a proposal for federal action.'" Kleppe v. Sierra Club, 427 U.S. 390, 406, 96 S. Ct. 2718, 2728, 49 L. Ed. 2d 576 (1976) (quoting Aberdeen & Rockfish Ry. Co. v. SCRAP, 422 U.S. 289, 320, 95 S. Ct. 2336, 2355, 45 L. Ed. 2d 191 (1975)). See also Monarch Chem. Works, Inc. v. Thone, 604 F.2d 1083, 1090 (8th Cir.1979). The President has already made such a recommendation on a proposal for federal action. On April 12, 1983, the President anncunced his endorsement of the findings and recommendations of the Presidential Commission on Strategic Forces to deploy 100 MX missiles in existing Minuteman silos. S.Rep. No. 174, 98th Cong., 1st Sess. 114 (1983).

15. The CEQ regulations have been amended to eliminate the title "worst case." 40 C.F.R. § 1502.22 (1986). However, the new regulation still requires an analysis of all "reasonably forseeable" significant adverse impacts on the human environment, including "impacts which have catastrophic consequences, even if their probability of occurrence is low." Id. Thus, the regulations effectively still require a "worst case" analysis.

16. This conclusion derives from a careful study of the 1985 and 1986 Defense Acts and their legislative histories. Study revealed that Congress recognized that the Bipartisan Commission on Strategic Forces and the President had recommended that the MX missiles be deployed in the Minuteman III missile silos, but refrained from mandating that this basing mode be employed for the 33 missiles authorized by the 1985 and 1986 Defense Acts. No language is found in these two Acts or their legislative histories that even approaches Congress' mandate in the 1984 Defense Act that the 21 missiles authorized by that Act be deployed in existing Minuteman III missile silos.

The only relevant language concerning the deployment of the 21 missiles authorized by the 1985 Defense Act is found in the House Committee on Armed Services' Report on the 1985 Defense appropriation bill, where it stated that the first phase of the Commission on Strategic Forces' recommendation, "the deployment Commission on Strategic Forces' recommendation, "the deployment of MX missiles in existing Minuteman silos — has been initiated." H.R.Rep. No. 691, 98th Cong., 2d Sess. 15 (1984). This report indicates, however, only that the House Committee recognized the preferred basing mode of the administration; it is not a requirement that the 21 MX missiles appropriated by the 1985 Act be deployed in the Minuteman missile silos. Moreover, the language of the 1985 Defense Act demonstrates that Congress was not committed to the administration's chosen basing mode. The Act conditions the expenditure of the funds appropriated for the 21 MX missiles authorized by that Act upon the President's submission, to Congress, of a report discussing "the basing mode for the MX missile." 1985 Defense Act, § 110(b), (b)(1), (e)(3), 98 Stat. 2492, 2504, 2506 (1984).

The dissent argues that through the 1984 Defense Act, Congress established an initial program to deploy all 100 MX missiles, and thus intended the basing mode and FEIS requirements mandated by the 1984 Defense Act to apply to the MX missiles authorized by the 1985 and 1986 Defense Acts. The dissent finds particular support for his view in the language of section 1231 of the 1984 Defense Act. This provision conditioned the deployment of more than 40 missiles upon the Secretary's submission to Congress, of a report "on the progress being made with respect to the development and deployment of the MX missile system" each year from 1984 through 1988. In the absence of a more explicit directive, Congress' desire to keep informed of new deployment modes is not sufficient to permit the inference that Congress intended the basing mode and FEIS requirements mandated in the 1984 Defense Act with explicit application to the 21 missiles authorized by that Act, to apply as well to the missiles authorized by the 1985 and 1986 Defense Acts.

The 1986 Defense Act and its legislative history are similarly devoid of an explicit directive concerning the basing mode for the 12 MX missiles appropriated by that Act. In the Act itself, Congress stated that "[t]he number of MX missiles deployed at any time in existing Minuteman silos may not exceed 50" and specified certain limitations upon the further procurement of MX missiles "after procurement of 50 MX missiles for deployment in existing Minuteman silos." 1986 Defense Act, § 141(b), (c), 99 Stat. 583, 603, 604 (1985). Nowhere in the Act, however, did Congress specify that those first 50 appropriated MX missiles must be deployed in the existing Minuteman silos. This language therefore seems to serve only as a limitation upon the Air Force's decisionmaking; the Air Force cannot deploy more than 50 MX missiles in existing Minuteman silos without complying with certain requirements. The House Committee Report on the 1984 appropriations bill does not clarify this ambiguous language. The Report merely reiterates the statement present in the House Commission's plan, the deployment of the MX missiles in the Minuteman silos, has been initiated. H.R.Rep. No. 81, 99th Cong., 1st Sess. 13 (1985).

[17 ELR 20990]

CONMY, District Judge, concurring in part and dissenting in part.

I concur with my colleagues that this case should be remanded to the district court for a determination of the sufficiency of the Final Environmental Impact Statement (FEIS), but I dissent from the portion of the majority decision which requires the FEIS to consider the environmental effects of an "intentional launch," or any "alternate basing modes" for any of the fifty-four authorized or forty-six as yet unauthorized MX missiles.

A reading of the legislative history of the 1984 n1, 1985² and the 1986³ Acts, together with an understanding of the long-lived debate over whether, when, and how to deploy MX missiles which preceded the 1984 Act convinces me that through the 1984 Act, Congress established an initial missile program to deply 100 MX missiles in existing Minuteman III silos, and that the basing mode mandated in the 1984 Act and the limitations placed upon the FEIS requirements, pertain to the entire program as contemplated by Congress at that time.

I find particular support for my view in the language of § 1231 of the 1984 Act. Congress imposed numerous testing and reporting requirements on the Secretary and the President to ensure that additional basing modes were explored and that silo-hardening technology was developed. Congress did not condition the procurement of additional missiles on completion of the tests, but merely on the delivery of a progress report. This indicates to me that Congress was committed to basing the 100 MX missiles in the existing Minuteman III missile silos, and that it was also committed to further study and testing of the basing modes. Congress could well have been looking ahead to future deployment of MX missiles in another basing mode.

It is true that the interplay between the 1985 and 1986 Acts is less than crystal clear. Both the 1985 and 1986 Acts refer to the MX missile program in general terms, and neither authorizes a basing mode other than in existing Minuteman III silos⁴ nor removes the peacetime use limitation from the FEIS requirements. While both my colleagues and I look at the same language and note the same discrepancies, we draw entirely different conclusions from what we find.

With the exception of the majority's decision to require that the FEIS cover alternate basing modes and the environmental effects of an intentional launch, I concur in the opinion of the majority.

1. Department of Defense Authorization Act of 1984, Pub.L. No. 98-94, §§ 110, 1231, 97 Stat. 614, 621, 693 (1984).

2. Department of Defense Authorization Act of 1985, Pub.L. No. 98-525, § 110, 98 Stat. 2492, 2504 (1985).

3. Department of Defense Authorization Act of 1986, Pub.L. No. 99-145, § 141, 99 Stat. 583, 603 (1986).

4. Subsections (b) and (c) of the 1986 Act specifically limit the basing mode of all MX missiles to existing Minuteman III silos and reinforce my view that the entire MX missile deployment program was an operational test program.