404 U.S. 917
COMMITTEE FOR NUCLEAR RESPONSIBILITY, INC.
James R. SCHLESINGER et al.
Supreme Court of the United States
November 6, 1971
The Application for Injunction in Aid of Jurisdiction presented to THE CHIEF JUSTICE as Circuit Justice for the District of Columbia Circuit and referred by him to the Court, having been considered by the Court on oral argument and on the papers and documents submitted by the parties, is hereby denied.
Mr. Justice DOUGLAS.
I would grant the injunction so that the case can be heard on the merits. The most serious question tendered is whether the Atomic Energy Commission has satisfied the mandate of the National Environmental [404 U.S. 917 , 918] Policy Act of 1969, 42 U.S.C. 4321 et seq. By 102(C) of that Act,1 Congress directed each agency of the Federal Government to '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 agree with the Court of Appeals for the District of Columbia in Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission, 449 F.2d 1109, that 'if the decision [under NEPA] was reached [by AEC] procedurally without individualized consideration and balancing of environmental factors-conducted fully and in good faith-it is the responsibility of the courts to reverse.'
That opinion, rendered on July 23, 1971, by a panel consisting of Judges Wright, Tamm, and Robinson, found that AEC's procedures in this nuclear area did not comply with the Act and that its entire approach [404 U.S. 917 , 919] to the environmental problems in the nuclear field violated the Act.
Another panel of the same Court of Appeals, composed of Judges Bazelon, Leventhal, and Robinson, said in the instant case, after examining in camera the relevant environmental documents,
In a later opinion the Court of Appeals did not approve the findings of the District Court that the order complies with the Act, saying, 'In our view the case does present a substantial question as to the legality of the proposed test.'
I have added in an appendix some apparently obvious defects in AEC's Impact Statement. [404 U.S. 917 , 920] We plainly do not have time to resolve this question between now and the scheduled detonation. Accordingly, I would grant the injunction so that a full Court can consider the case on the merits.
In the Calvert Cliffs case the Court of Appeals held that the procedural rules adopted by AEC for the preparation of environmental impact statements did not meet statutory requirements. And in the October 5, 1971, opinion by the Court of Appeals in the instant case it is held that 'responsible opposing views' on environmental damage 'need be included' in the Impact Statement in the form of 'a meaningful reference that identifies the problem at hand for the responsible official.'
The Act requires that reports from federal agencies required by the Act and the CEQ guidelines to be consulted with respect to the preparation of an Impact Statement, and which are adverse to the project with respect to which their views are sought, must be released as part of the Impact Statement prepared by the agency responsible for the project.
Here, several such reports were not disclosed. The existence of these reports became known through newspaper stories and debates on the floor of Congress. These reports were the subject of the discovery proceedings which caused such a long delay in this litigation. The reports in question included those of:
(a) Russell Train, Chairman of CEQ;
(b) Edward E. David, Jr., Director of OST;
(c) William D. Ruckelshaus, Administrator of EPA; and
(d) Glenn T. Seaborg, Chairman of the AEC. [404 U.S. 917 , 921] The CEQ guidelines specifically state that the exemptions in the Freedom of Information Act are not applicable to agency comments made in the course of consultations with reference to the preparation of an Impact Statement. The Act and the regulations direct that an agency charged with the preparation of an impact statement 'consult with and obtain the comment on the environmental impact of the action of federal agencies with jurisdiction by law or special expertise with respect to any environmental impact involved.' 36 Fed.Reg. 7724, 7725, 7. The EPA is specifically designated to be one of the agencies within the contemplation of 7, ibid. And under 10(f) of the regulations, the AEC would be the agency 'responsible for making the statement and the comments received available to the public pursuant to the provisions of the Freedom of Information Act.' 36 Fed.Reg., at 7726-7727. Besides the express designation of the EPA, the argument is compelling that the other agencies in question have 'special expertise' and in the case of the AEC, 'jurisdiction by law' concerning the various environmental effects to be expected from an underground nuclear explosion.
Once noncompliance with the NEPA is shown, the federal courts have uniformly held that injunctive relief is appropriate.
Disclosure of these statements to the public by any federal agency which has 'special expertise with respect to any environmental impact involved' is indeed required by 102(C) of the Act. And the courts have consistently held that a defect in the Impact Statement presents a justiciable question and is the basis for equitable relief. West Virginia Highlands Conservancy v. Island Creek Coal Co., 4 Cir., 441 F.2d 232; Environmental Defense Fund v. Corps of Engineers, D.C., 325 F.Supp. 749, 759; Wilderness Society v. Hickel, D.C., 325 F.Supp. 422. [404 U.S. 917 , 922] Seismic Dangers:
According to the Impact Statement, 'No significant environmental impact can be expected from the seismic activity caused by the CANNIKIN test.' I.S., p. 3. Two sorts of seismic effects are at issue. First, there is the possibility that the explosion might trigger a natural earthquake of greater force than the bomb itself. The Impact Statement asserts that
This conclusion is based on nothing more than an assertion to this effect by 'a panel of eminent scientists and engineers ... acting as consultants to the AEC.' I.S., p. 54, which was presumably based, in turn, on
That more should be required is clear from the heretofore secret memorandum written by Russell Train of the CEQ, the agency charged with the broadest statutory authority in establishing national environmental policy. [404 U.S. 917 , 923] According to Mr. Train,
Mr. Train goes on to explain that 'great earthquakes' [those with a force of 8.0 or more on the Richter scale] are now considered to result from the cumulative effects of a series of smaller shocks. (CANNIKIN is expected to register about 7.0 on the Richter scale.) Referring specifically to great earthquakes occurring within the past few years in Chile and Alaska, he notes that the theoretical explanation for these events justifies a concern that the force of CANNIKIN, which would be the largest underground device exploded by man, might surpass the 'threshhold' required to trigger a great quake.
The CANNIKIN yield may be as high as five times that of the BENHAM and MILROW devices.
The 'lock-point' theory is also explained in a statement by J. W. Hadley, which had also been suppressed until this week. The theory is nowhere discussed, nor even 'alluded to,' in the Impact Statement.
A further misleading conclusion in the Impact Statement is that CANNIKIN could not trigger a natural quake unless that quake 'is imminent, very near the test site.' The documents revealed this week indicate there is a possibility that earthquakes may be triggered by a rise in underground fluid levels, or by artificial loading of the earth's crust. Presumably, the fluid lubricates the rock along a fault line, thus enhancing the potential for slippage. A series of earthquakes along a dorment fault near Denver has been definitely attributed to the pumping of waste water deep into the earth by the Rocky Mountain Arsenal. Train memo, pp. 1-2.
Increased subsurface fluid pressure will be one result of CANNIKIN.
Thus, it would appear that 'imminence' may not be necessary for CANNIKIN to trigger a large earthquake. This possibility is not mentioned in the Impact Statement.
Another failure of the Impact Statement is to consider the long-term effects of the CANNIKIN device on the geology. 'The creation of a large cavity together with a later collapse of the chimney produces permanent changes in the strain field. ... However, the strain field resulting from an underground explosion cannot be calculated with any precision because of the dependence of the field on the detailed geology which is largely unknown at any given location.' Train memo, p. 3. [404 U.S. 917 , 926] Not only does the Impact Statement fail to assess the possible effects of permanent changes in the strain field, but it represents that the geologic conditions at Amchitka have been fully explored. I. S., p. 19.
Perhaps the most striking deception of the Impact Statement, in light of the Train memo, is its attempt to represent that professional opinion is unanimous that there is no real danger that CANNIKIN will trigger a large earthquake. According to Mr. Hadley, however,
The second seismic effect which might result from CANNIKIN is a tsunami, or tidal wave. According to the Impact Statement, 'the possibility of the CANNIKIN explosion or an earthquake causing a damaging tsunami (seismic sea wave) is even more unlikely [than the triggering of a great earthquake].' I. S., p. 3. The Train memo itself points out, 'Large earthquakes in the near vicinity of Amchitka have not caused destructive tsunamis in the past.' Train memo, p. 4. Train goes on, however: 'as in the case of earthquakes it is not possible at this time to assess quantitatively the probability of a tsunami following the explosion.' Id., at 4-5. Another heretofore suppressed statement, that of Dr. W. G. Van Dorn, entitled 'Probability of Tsunami Generation and Connection with CANNIKIN,' indicates the author to be as deeply concerned about the danger from the explosion as the 'well-qualified geophysicists' who believe that the risks are great, and whose views are contained in an attachment to the Train memo. Those views remain suppressed. Considering the awesome destructive capabilities of even a [404 U.S. 917 , 927] 'small' tsunami, and its ability to retain its destructive force thousands of miles from its source, it would seem incumbent upon the drafters of the Impact Statement to explore in greater detail the sources of such responsible concern.
The second category of environmental hazards from the CANNIKIN event are those relating to the danger that radioactive material from the explosion might escape to the surface. The most serious problem is the effect on groundwater movement, for the water table on Amchitka extends almost to the surface.
According to the analysis of the Impact Statement, the most probable mode of groundwater circulation by which radionuclides might escape into the sea would take 'a thousand years or more.' I.S., p. 24. The least likely
Indeed, the Impact Statement thinks it far more probable that only 'some small fraction of the tritiated water' will 'move upward in the chimney rubble.' And only relatively near the surface will increased perme- [404 U.S. 917 , 928] ability provide a path to the sea. The Impact Statement estimates that no tritium would be released into the water for over a hundred years through this mechanism. I.S., p. 24.
The Train memo, however, relying on calculations from the USGS, comes to a different conclusion.
Thus, the judgment of the Chairman of the Council on Environmental Quality is that it is likely, if not probable that within 10 years of CANNIKIN, radioactive water of concentrations perhaps 100,000 times permitted maximums will reach the sea near Amchitka. Inasmuch as this estimate is 100 times greater than their own, I should think it would require consideration by the drafters of the Impact Statement.
Another document shown to the petitioners herein for the first time this week supports the Train analysis:
The USGS recognized that its water migration time scale was highly inconsistent with that of the AEC; in so doing, it reaffirmed its original position:
The AEC was aware of the USGS position with respect to groundwater migration. It simply ignored it.
More disturbing than the failure of the Impact Statement to meet the arguments advanced by its critics perhaps, is a deliberate distortion, in certain instances of those opposing views. Thus, the statement argues that even were the 'extreme case' to occur, and radioactive water migrate to the sea within a few years,
Compare this use of the dilution figure with that of Train:
Mr. Justice BRENNAN and Mr. Justice MARSHALL would grant a temporary restraining order pending plaintiffs' filing of a petition for certiorari and action by the Court on the petition. The question to be presented is whether the detonation of CANNIKIN would be illegal if the Atomic Energy Commission did not comply with the mandate of 102(C) of the National Environmental Policy Act of 1969. The Court of Appeals did not accept the holding of the District Court that the Commission had complied with 102( C), stating, 'In our view the case does present a substantial question as to the legality of the proposed test.' The oral argument confirmed this view. In that circumstance, to avoid mootness, the Commission must be enjoined from proceeding with CANNIKIN until the Court decides whether to review the question of its legality.
[ Footnote 1 ] Guidelines for agency action are provided by the General on Environmental Quality of which Russell E. Train is Chairman. See 36 Fed. Reg. 7724.
[ Footnote 2 ] As the Court of Appeals held in an earlier opinion in this case, Committee for Nuclear Responsibility, Inc. v. Seaborg, D.C.Cir., 463 F.2d 783, Congress did not intend, by approving funds for the Cannikin detonation, to repeal the NEPA as it applied to the test.
See Remarks of Rep.Price, 112 Cong.Rec. 6785, July 15, 1971:
Other federal courts have similarly concluded that congressional appropriations for a project subject to NEPA are not to be taken as expressing any view with respect to compliance with NEPA. Environmental Defense Fund v. Corps of Engineers, D.C., 325 F.Supp. 749, 762-763.