New York v. Nuclear Regulatory Commission

No. 75 Civ. 2121 (WCC) (S.D.N.Y. September 9, 1975)

The court denies plaintiff's motion for a preliminary injunction against air transportation of plutonium and other special nuclear materials pending trial on its claim that preparation of a NEPA impact statement is required for the transport program. Even assuming there is a sufficient likelihood of success on the merits, the injunction cannot be granted because plaintiff has failed to demonstrate that continuation of air transport of nuclear materials will cause irreparable harm. This is not a case concerning federal action such as highway or dam construction which would irreversibly disturb the environmental status quo; to the contrary, the court here is being asked to alter a method of shipment which has gone on for 25 years without any evident adverse environmental impact. Nor can it be said that possible violation of NEPA represents irreparable harm per se in this instance, since denial of an injunction at this stage will not decrease the effect that any EIS which may ultimately be prepared will have on the agency decision of whether to modify this method of shipment. Plaintiff's contention that continued air transport endangers human life is also unconvincing. There is only a very remote likelihood of an adverse environmental incident in the form of plutonium container rupture after an air crash, and air shipment would seem to have clearcut advantages over surface transport in terms of vulnerability to terrorist attack.

Counsel for Plaintiff
Louis J. Lefkowitz Attorney General
Philip Weinberg
John F. Shea, III
Joseph J. Zedrosser Asst. Attorneys General
State Capitol
Albany, N.Y. 12224

Counsel for Defendants
Charles Richter Asst. U.S. Attorney
Louis Gerber
U.S. Courthouse
One Foley Square
New York, N.Y. 10007

[5 ELR 20662]

Conner, J.

This action under the National Environmental Policy Act (NEPA) charges defendants with having violated 42 U.S.C. § 4321 et seq., its policies and goals by transporting or allowing the transportation by air of plutonium and other special nuclear materials (SNM)¹ without having issued an environmental impact statement (EIS) as required by § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C).² Presently before the court is a motion pursuant to Rule 65, F.R.Civ.P., for a preliminary injunction restraining defendants³ and their agents from tranporting, or permitting the [5 ELR 20663] transportation by air of SUM from, to and over the United States and its territories, pending the determination of this action.⁴

Consideration of whether the court should grant the extraordinary remedy of preliminary injunction involves the analysis of three criteria — likelihood of ultimate success on the merits, irreparable injury, and the balance of hardships. Sanders v. Air Line Pilots Association, International, 473 F.2d 244, 248-49 (2d Cir. 1973), and cases cited therein; Heldman v. United States Lawn Tennis Association, 354 F. Supp. 1241, 1249-50 (S.D.N.Y. 1973).

These three elements are not considered separately but in combination, each weighed against the others. Sanders v. Air Line Pilots Association, International, supra at 248; Semmes Motors, Inc. v. Ford Motor Company, 429 F.2d 1197, 1205-06 (2d Cir. 1970); Checker Motors Corp. Chrysler Corp., 405 F.2d 319, 323 (2d Cir.), cert. denied, 394 U.S. 999 (1949); Dino De Laurentis Cinematografica, S.p.A. v. D-150, Inc., 366 F.2d 373, 375 (2d Cir. 1966); Heldman v. United States Lawn Tennis Association, supra at 1250.

The movant bears "the burden of demonstrating either a combination of probable success and the possibility⁵ of irreparable injury or that [it has] raised serious questions going to the merits and that the balance of hardships [tips] sharply in [its] favor." Pride v. Community School Board of Brooklyn, 482 F.2d 257, 264 (2d Cir. 1973), and cases citedtherein.

There are thus two relevant factors to be considered: the movant's "possibilities of success on the merits" and the relative injuries occasioned by the issuance of the injunction, or its denial. Brown v. Chote, 411 U.S. 452, 456 (1973); Citizens for a Better Environment, Inc. v. Nassau County, 488 F.2d 1353, 1361 (2d Cir. 1973); Cohen v. Price Commission, 337 F. Supp. 1236, 1239 (S.D.N.Y. 1972), and cases cited therein. Assuming arguendo that plaintiff has shown a sufficient likelihood of ultimate success, I still must carefully weigh the consequences of granting or denying the injunction.

Plaintiff asserts that there are three bases upon which a preliminary injunction could properly issue in this case. First, it is argued that the failure to file an EIS is a violation of a clear, non-discretionary legal duty under NEPA which constitutes irreparable harm per se. Second, plaintiff asserts that the continued shipment by air of SNM presents a substantially greater risk to human life than does the shipment of such material by surface transport. It is plaintiff's position that each air shipment of SNM carries with it the potential for irreparable harm. Finally, it is alleged that the balancing of the hardships weights in favor of granting the preliminary injunction.

Irreparable harm per se

In arguing that a violation of NEPA, in and of itself, constitutes sufficient irreparable harm to support the issuance of a preliminary injunction, plaintiff places principal reliance upon a series of NEPA cases decided in this circuit and others which at least arguably contain dicta to that effect. See, e.g., Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164, 1184 (2d Cir. 1972); Scherr v. Volpe, 466 F.2d 1027, 1034 (7th Cir. 1972); Izaak Walton League of America v. Schlesinger, 337 F. Supp. 287, 295 (D.D.C. 1971). However, the courts involved have gone to considerable lengths to point out that 1) in the absence of injunctive relief actual, imminent, irreparable injury, such as the destruction of a forest or pollution of a river, would follow and/or 2) the impending federal acts sought to be enjoined would render ineffectual any EIS which might ultimately be ordered.

For example, although the court in Environment Defense Fund v. Tennessee Valley Authority, supra at 1184, stated that:

[s]ufficient irreparable harm . . . can be found in the continuing denial by appellants of appellees' right under the NEPA, and this is enough to justify issuing the injunction,

the court had earlier observed that:

plaintiffs alleged that they would suffer irreparable harm from the continuation of the construction activities of appellants that were permanently defacing the natural environment. Submitted along with this motion were affidavits . . . concerning activities of appellants such as the cutting and burning of timber, the movement of massive amounts of earth, the construction of large earthworks, and the relocation of roads and bridges. Plaintiffs' motion also referred to the condemnation of land and the resulting eviction of the former owners of the condemned properties. The District Court found that the activities relating to irreparable defacement of the environment were continuing, 339 F. Supp. at 808, and recognized that it had to consider the interest and injuries asserted by the parties, 339 F. Supp. at 812. Thus, the court clearly considered the allegations of irreparable harm made by plaintiffs as well as the harm that would allegedly result from issuing the injunction, and it concluded that the scales tipped in favor of plaintiffs. Plainly, the court found that plaintiffs would suffer irreparable harm if the injunction were not granted, and this finding is supported by the record.

Likewise, although the court in Scherr v. Volpe, supra at 1034, did state that:

[t]he kind of 'irreparable harm' which must be shown in order to justify the issuance of a preliminary injunction in these cases can be found in the language of the Act [NEPA] itself,

it primarily based the granting of a preliminary injunction on the fact that if the challenged activity were allowed to proceed, the plaintiff's right to have the environmental consequences of the challenged project considered would be lost forever because in that case it would be impossible to return the affected area to its previous environmental status.

The objective of retaining the status quo was also considered significant in the Environmental Defense Fund case, 468 F.2d at 1183-84; see also Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1332-34 (4th Cir.), cert. denied, 409 U.S. 1000 (1972); Lathan v. Volpe, 455 F.2d 1111, 1117 (9th Cir. 1971); Scherr v. Volpe, 336 F. Supp. 882, 886 (W.D. Wisc. 1971), aff'd, 466 F.2d 1027 (7th Cir. 1972).

Similarly, in Izaak Walton League of America v. Schlesinger, supra, if Judge Parker had not issued the preliminary injunction sought, the status quo would have been disturbed and it would have become difficult if not impossible to return the area to its previous [5 ELR 20664] condition.

Therefore, in the cases cited by plaintiff there was always some federal action, such as the construction of a building or highway or the activating of a nuclear power plant, which could not be easily undone or changed. Thus it would be impossible or at least impracticable to make the modifications which might subsequently be indicated by an EIS. Judge Duniway in Lathan v. Volpe, supra at 117, described such situations as

comparatively rare cases in which, unless the plaintiffs receive now whatever relief they are entitled to, there is danger that it will be of little or no value to them or to anyone else when finally obtained.

It is obvious that this case presents no such problem. To the contrary, in this case the court is being asked to disturb the status quo by requiring defendants to alter a method of transporting SNM which has subsisted without any demonstrable adverse environmental impact for twenty-five years. This is not at all the same as enjoining the further construction of a road, clearing of a wilderness or degradation of a river.

Moreover, a denial of an injunction at this stage of the proceedings will in no way decrease the likelihood that there will be ultimate compliance with NEPA, nor render such compliance a hollow gesture, as would have been the situation in the other cases cited by plaintiff. For example, it would be no more, or less, difficult to modify the regulations governing the transportation of SNM pursuant to the EIS which the NRC is scheduled to file next year whether I grant or deny plaintiff's request for a preliminary injunction.

I conclude that under the circumstances of this case it would be inappropriate to issue a preliminary injunction based solely on defendants' alleged violation of NEPA.

Risk to human life

Plaintiff contends that the continued air shipments of SNM endanger human life primarily in two ways:

1) the possibility of container rupture and resulting release of SNM caused by an air crash, and

2) the possibility of terrorist activities directed toward such shipments resulting in the hijacking of SNM and their threatened or actual dispersion into the atmosphere or their use in the manufacture of nuclear weapons.

Container rupture upon crash

Special nuclear materials are shipped in containers, the specifications for which are prescribed and approved jointly by the NRC, the Department of Transportation (DOT), and the Federal Aviation Administration (FAA). It is uncontested that these containers are not invulnerable to all levels of crash stresses and common sense as well as the affidavits filed in this action attest to the fact that the containers would more likely be breached in the crash of an aircraft than that of a surface vehicle. This is of course due primarily to the generally higher speeds of aircraft which impose acceleration stresses much more severe than those experienced in collisions of surface vehicles.

Notwithstanding the above, the fact is that during the past twenty-five years, during which time all types of SNMs have been transported by commercial aircraft, there has never been an aircraft accident involving a release of SNM.⁶ Furthermore, even if an aircraft carrying SNM were to crash, due to the high integrity packaging required by the NRC, DOT and FAA regulations, the chances of encountering stresses capable of rupturing the SNM's container, in combination with the geographical, meteorological and other conditions required to produce the disastrous results envisioned by plaintiff, are extremely remote.

The hazard of an adverse incident due to an accidental air crash was further reduced last month when Congress severely limited the circumstances under which NRC licensees could ship plutonium by air. Plutonium is conceded by plaintiffs to be the only SNM which presents any real hazard to human life in the event of an air crash. It is also significant that Congress now has a bill before it which would similarly, yet less drastically, restrict air shipments of plutonium by ERDA. On the basis of the record now before me, I can reach no conclusion except that the chances of an adverse environmental incident resulting from accidental air crash are much too small to warrant the issuance of an injunction pendente lite which would have unpredictable but possibly significant adverse effects in other respects discussed hereinafter.

Terrorist activities

Notwithstanding plaintiff's charge that civilian air shipments of SNM are susceptible to attack by terrorists, from the standpoint of vulnerability to terrorism, air transport has clear-cut advantages over surface transport. Not only does air transport lessen the time required for the shipment, but the only access to the shipment is before and after the flight, while a train or truck shipment is an exposed target at every point throughout its transit.

I am convinced that the increased possibility of hijacking involved in surface transport more than offsets any increased chance of accidental release which air transport may present. This is particularly so in the case of SNMs other than plutonium, which create no danger to human life even in the event of an air crash.

Plaintiff's claims both with respect to the dangers involved in the possibilities of air crashes and hijacking are based upon expert opinion which necessarily involved considerable conjecture, but which substantially ignored the attendant hazards of alternative forms of shipment of SNM.

The record does not establish a sufficient possibility of adverse environmental impact resulting from the continued air shipments of SNM to support plaintiff's allegations of irreparable injury or to warrant the issuance of a preliminary injunction.

Balancing the hardships

Finally, plaintiff has failed to demonstrate that the harm resulting from a denial of the injunction will outweigh the injury to defendants if the injunction is granted.

The affidavits submitted amply demonstrate that the public interest would not be served by a total ban on the shipment of SNM. Transport must continue in some mode. Aside from shipments to research projects and energy facilities in this country, the United States is a signatory on numerous agreements with foreign governments to supply at least part of their SNM needs. Therefore, granting a preliminary injunction at this stage would require defendants to alter significantly a method of transporting SNM which has proceeded for twenty-five years without incident.

Considering the extremely remote possibility of actual irreparable harm, combined with the fact that the continued air shipment of SNM will in no way reduce the effect that any EIS subsequently filed may have, as well as plaintiff's failure to convince the court that air transportation of SNM involves greater overall hazards than surface transport leads me inexorably to the conclusion that a preliminary injunction should not issue.

The motion for a preliminary injunction is denied.

SO ORDERED.

1. Special nuclear material (SNM) is defined in § 11(aa) of the Atomic Energy Act of 1954, 42 U.S.C. § 2014(aa), as:

(1) plutonium, uranium enriched in the isotope 233 or in the isotope 235, and any other material which the Commission, pursuant to the provisions of section 2071 of this title, determines to be special nuclear material, but does not include source material; or (2) any material artificially enriched by any of the foregoing, but does not include source material.

The papers submitted in this action are addressed only to plutonium and uranium enriched in either of the isotopes 233 or 235.

2. 42 U.S.C. § 4332 provides, inter alia:

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall —

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

3. Defendant Nuclear Regulatory Commission's (NRC) functions include licensing possession and transportation of SNM and developing and enforcing standards for containers in which SNM is transported.

Licenses issued by the NRC authorize the licensee to receive, possess and use the radioactive materials specified in the license. They also provide authority for the licensee to effect the delivery and transfer of such material to an authorized recipient.The NRC does not specify the mode of transport to be used by licensees.

The actual carriers of SNMs are not licensed by the NRC but rather by some different federal agency such as Interstate Commerce Commission or Federal Aviation Agency (FAA). For example, the University of Michigan would need an NRC license before it could possess or ship SNM to the University of Nebraska, but such material could be carried by air only by a carrier licensed to transport hazardous materials by the FAA.

With the exception of defendant Energy Research and Development Administration (ERDA), and the Department of Defense, no person may possess SNM unless licensed by the NRC or a state, such as New York, which has entered into an agreement with the NRC pursuant to § 274 of the Atomic Energy Act of 1954, 42 U.S.C. § 2021.

Defendant Department of Transportation (DOT), has overlapping responsibility with the NRC for reviewing and developing safety standards governing the handling and storage of SNM while in the possession of a common, contract or private carrier. Defendant FAA, a branch of the DOT, has similar overlapping responsibility for such safety standards as they involve transportation of SNM by commercial passenger or cargo aircraft.

NRC regulations respecting the possession and transportation of SNM appear in 10 C.F.R. Parts 20, 70, 71 and 73. DOT provisions regulating the handling and shipment of hazardous materials appear at 49 C.F.R. Parts 170 through 179 and 46 C.F.R. Part 146. FAA regulations are at 14 C.F.R. Part 103.

The remaining defendants do not regulate the possession or transportation of SNM by others. Defendant ERDA is responsible for, among other things, production of SNM at its facilities and for research in which SNM are used. It operates various facilities, such as the former Atomic Energy Commission's (AEC) gaseous diffusion plants in Oak Ridge, where uranium is enriched, and the Brookhaven National Laboratory on Long Island, where nuclear research is conducted. ERDA is also responsible for the manufacture and delivery to the Department of Defense of nuclear weapons.

Accordingly, ERDA itself makes or arranges for domestic shipments of SNM between its various plants and laboratories and between Department of Defense installations, as well as between commercial fuel fabricators and independent research centers. Most of ERDA's shipments relate to defense programs of the United States, such as shipments of weapons components and materials and fuels connected with the naval reactor program.

ERDA is also responsible for administering Agreements of Cooperation which are negotiated by defendant Department of State and approved by Congress. International shipments of SNM by ERDA are, for the most part, pursuant to these Agreements.

While ERDA is not required to obtain a license from the NRC to ship SNM, the commercial carriers it uses must be certified by other government agencies, such as the FAA, and must meet all applicable federal and international safety requirements.

Defendant Civil Aeronautics has no direct involvement in regulating SNM because it does not license the carriage of any particular cargo. The only involvement of defendant United States Customs Service is to ensure that SNM enter or leave the United States only if the shipper has a valid license issued by the NRC or qualifies for one of the specific exemptions from the licensing requirements as established by NRC regulations.

4. Since its organization in January of this year, the NRC has stated its intention of reviewing its regulations, which were originally promulgated by the AEC, pertaining to the licensing and regulation of nuclear facilities and materials. As part of that review, the NRC announced prior to the commencement of this action that it would prepare an EIS concerning the transportation of radioactive material, including SNM, by air and by alternative means. It also announced that it would conduct a rule making proceeding concerning the transportation of radioactive material, including SNM, to determine if there should be any changes in existing applicable regulations or modes or transportation.

Formal notice of both the EIS and the rule making proceeding was published in the Federal Register on June 2, 1975, 40 Fed. Reg. 23768. It has been represented to the court that a draft of the EIS will be available for public comment by the end of this year and the final version by the summer of next year. The Federal Register notice invited persons to submit information, comments and suggestions as to whether radioactive material should continue to be transported by air and, if so, whether and what improvements in applicable regulations are necessary.

5. Although some of the cases cited speak in terms of "possible" irreparable injury, surely the mere fact that one can conceive of a series of events and speculate as to their possible occurence, regardless of how remote, is not a sufficient basis upon which to conclude that a preliminary injunction should issue. See Cohen v. Price Commission, 337 F. Supp. 1236, 1239 (S.D.N.Y. 1972).

6. Between 1970 and 1973, United States carriers flew 12,610,995,000 miles with only 112 accidents in which aircraft received substantial damage or were destroyed. Cargo aircraft, which carry all shipments exceeding twenty curies of SNM, were involved in a total of only six accidents from 1970 through 1973.

Of the 112 accidents referred to 82 aircraft were "substantially" damaged and 30 were "destroyed." The National Transportation and Safety Board (NTSB), which compiled these figures, defines substantial damage to mean damage or structure failure which adversely affects the structural strength, performance or flight characteristics of an aircraft and which would normally require major repair or replacement of the affected component. The NTSB considers and aircraft to be totally destroyed when the damage is so extensive as to be beyond repair.

Whether in either case there would be damage to cargo depends upon a significant number of variables including location of the cargo within the plane, the velocity and angle of impact, the energy absorbed by strain or rupture of the airplane, and the residual stress transmitted to the cargo. For example, an aircraft which requires a major repair to an engine when its landing gear collapses upon the runway would be classified by the NTSB as being substantially damaged. However, it is unlikely that such an accident would endanger any of its cargo. Even when an aircraft is totally destroyed for purposes of these statistics, it cannot be assumed that all of its cargo will be destroyed with it.