Greenpeace USA v. Stone

No. 90-16260 (9th Cir. February 5, 1991)

The court holds moot an environmental group's appeal of the district court's refusal to preliminarily enjoin further movement of chemical weapons stored in Germany based on alleged violations of the National Environmental Policy Act (NEPA). Plaintiffs brought a NEPA challenge to a joint project of the United States and German armies to remove obsolete chemical weapons from their storage site in Germany and transport them to Johnston Atoll for incineration. The court holds that the appeal is moot because the munitions have been moved to Johnston Atoll. Plaintiffs may proceed with their challenge to the proposed incineration of the munitions in Johnston Atoll. The government has asserted that the munitions will not be incinerated until the district court has considered the merits of plaintiffs' claims.

[The district court's decisions are published at 21 ELR 20378 and 20383.]

Counsel for Appellants
Paul P. Spaulding III
Sierra Club Legal Defense Fund, Inc.
212 Merchant St., Honolulu HI 96813
(808) 599-2436

Counsel for Appellees
Elizabeth Ann Peterson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Choy, Schroeder and Pregerson, JJ.

[21 ELR 20573]

Per curiam

Plaintiffs filed this action in the district court in Hawaii to halt the contemplated removal from Germany of obsolete chemical weapons ("the European stockpile") and their transfer to Johnston Atoll for destruction. Plaintiffs alleged noncompliance with the National Environmental Policy Act, 42 U.S.C. §§ 4331 et seq. This is an appeal from the district court's denial of plaintiffs' application for a preliminary injunction to "restrain the defendants from further movement of the chemical weapons currently located in the Federal Republic of Germany pending the trial of this case." The district court's opinion is reported at 748 F. Supp. 749 (D. Hawaii 1990). A motions panel of this court denied emergency relief and calendared the appeal for expedited review. Before briefing could be completed, however, the munitions were moved from Germany to Johnston Atoll where they are now stored.

The government now correctly contends in this appeal that all of the issues relating to the transfer of the munitions are moot. The district court's consideration of the motion for preliminary injunction entailed review of unique circumstances, and the plaintiffs have been able to seek review on at least an emergency basis. Accordingly this is not a case involving a recurring situation that would evade review within the meaning of Southern Pacific Terminal Co. v. Interstate Commerce Comm'n., 219 U.S. 498, 515 (1911).

Plaintiffs' underlying complaint is directed not only to the transportation but also to the proposed incineration of the munitions at Johnston Atoll. The district court has not yet fully considered the issues relating to destruction, but counsel for the government has represented that the European stockpile will not be destroyed until the district court has considered the merits of plaintiffs' complaint.

This appeal is therefore DISMISSED as moot.