643
F.2d 569
CATHOLIC
ACTION OF HAWAII/PEACE EDUCATION PROJECT et al., Plaintiffs‑
Appellants,
v.
Harold
BROWN, Secretary of Defense, et al., Defendants‑Appellees.
C.A.
No. 79‑4330.
United
States Court of Appeals,
Ninth
Circuit.
Submitted
Jan. 16, 1980.
Decided
July 17, 1980.
Rehearing
and Rehearing En Banc Denied Oct. 9, 1980.
*570
Nancy Stearns, Center for Constitutional Rights, New York City, for plaintiffs‑appellants.
Martin Green, Washington, D. C., argued,
Walter M. Heen, U. S. Atty., Elliot Enoki, Asst. U. S. Atty., Honolulu, Hawaii,
on brief, for defendants‑appellees.
On Appeal from the United States District
Court for the District of Hawaii.
Before MERRILL, SCHROEDER and FLETCHER,
Circuit Judges.
MERRILL, Circuit Judge:
This action was brought by appellants,
several Hawaii based environmental groups and individuals concerned with the
protection of the environment. They
seek to require the United States Navy to file an environmental impact statement
(EIS), pursuant to the National Environmental Policy Act (NEPA), and to comply
with other federal statutes protecting endangered species and historic sites
in connection with alleged plans to store nuclear weapons at the West Loch
branch of the Lualualei naval magazine on the island of Oahu, Hawaii.
The West Loch facility has, since 1959,
been used for handling and storage of ammunition. It is located one mile from the final approach to a major runway
at the Honolulu International Airport and in close proximity to airports at
Hickham Airforce Base and Barber's Point Naval Air Station.
In 1975, the Navy prepared an environmental
impact assessment (EIA) of the environmental consequences which might result
from the planned transfer to West Loch of weapons being stored at Waikele
branch of the Lualualei magazine. The
assessment concluded that the construction of the magazines and buildings
to accommodate the relocation of weapons would have no significant impact
on the environment beyond that of the weapons previously stored there. Consequently,
it concluded that no EIS was necessary, and none was prepared.
However, the EIA did not take into consideration the possibility that
nuclear weapons might be stored at the new facility; only conventional weapons
had previously been stored at West Loch.
In March, 1977, a contract was let for
a portion of the construction dealt with in the EIA. In April, 1978, a contract was let for the balance.
In 1978, the Navy prepared a candidate
environmental impact statement (CEIS) entitled "Nuclear Aspects of Naval
Weapons Systems Storage." It
dealt generally, without reference to any specific site, with the hazards
connected with storage of nuclear warheads and concluded that "The handling,
storage and transportation of nuclear weapons present no hazards to the environment."
It did not discuss the likelihood or potential effects of nuclear explosion
or detonation resulting from sabotage or an accident caused by crash of an
airplane into a storage facility.
In March, 1978, this action was brought
seeking an injunction against the building of the new facilities until an
EIS had been filed. A preliminary
injunction was sought and denied. The
new facilities have now been completed. It is stipulated that the new construction
is capable of maintaining and storing nuclear weapons. Navy regulations, in
the interest of national security, will permit it neither to admit nor deny
that plans exist to store nuclear weapons there.
The Okiokiolepe Fishpond, listed on the
National Register of Historic Places, is located 750 feet from the new storage
site. It is virtually the only
fishpond left of many that once were located in the Pearl *571 Harbor area. The Hawaiian stilt is a rare waterbird
whose habitat is in the West Loch area.
It is the contention of appellants that
the EIA does not satisfy the requirements of NEPA, in that it has ignored
four critically important environmental factors: (1) The risk of nuclear accidents;
(2) The enhancement of that risk by the physical proximity of the airports;
(3) The effects of any nuclear accident upon the surrounding population and
environment of Hawaii; and (4) The effects of continual low‑level radiation
from the storage of the weapons near populated areas. It is contended that the CEIS, not being
site specific, can supply none of these factors.
The district court concluded that the West
Loch project was major federal action significantly affecting the environment,
and that the defendants were required to comply with NEPA "to the fullest
extent possible." It concluded,
however, that the Navy had complied so far as was possible, given certain
national security provisions of the Atomic Energy Act and certain Navy regulations
relative to the classification of nuclear weapons. Appellants' case was dismissed,
and this appeal followed.
The Navy contends in its brief on appeal:
" * * * the Atomic Energy Act, and the various
Department of Defense and Navy directives which implement that Act, forbid
the disclosure of information relating to the presence of nuclear weapons
at military bases. There is simply
no way that the Department of the Navy can on the one hand preserve the secrecy
required by the Atomic Energy Act with respect to the presence or absence
at West Loch of nuclear weapons, and on the other hand prepare and make available
to the public a statement with respect to the impact upon the environment
of the storage of nuclear weapons at West Loch. Compliance with one statute precludes compliance with the other."
Accepting arguendo that
the Atomic Energy Act and the directives which implement it forbid any disclosure
of information regarding the presence of nuclear weapons at a military base,
we cannot agree that this precludes preparation of an EIS with respect to
the storage of nuclear weapons at West Loch.
An EIS, to be sufficient,
must deal not only with the environmental consequences of the original construction
involved in the project, but with the environmental consequences of the operation
of the facility. Concerned About Trident v. Rumsfeld, 555 F.2d 817 (D.C.Cir.1977).
If operation involves a choice between alternatives, the decision maker
must be so informed as to the consequences of each alternative that a knowledgeable
choice can be made. Here, the Secretary must be informed as to the consequences
of his choice of weapons to be stored.
If nuclear storage is a potential choice, he must be adequately prepared
to make such choice when the time for decision arrives.
In the present case it
is stipulated that the West Loch facilities are capable of storing nuclear
weapons. The public therefore
must assume that at least the possibility exists that nuclear weapons, to
the extent of the apparent capacity of the facility (assuming that capacity
would be apparent to a knowledgeable observer), will be stored at West Loch. Thus, an EIS dealing with the consequences
of such possibility would reveal nothing with respect to the likelihood of
storage of which the public is not already aware. Such a process of informing the decision
maker need not imply that the decision has already been made or what the decision
is; the Secretary need never reveal the fact that a decision has been made
or what it is. However, the public
must receive some assurance, particularly in a situation as potentially catastrophic
as this one, that when the decision is made the decision maker will have been
adequately informed as to the environmental consequences of each alternative,
here including the potential consequences of the storage of nuclear weapons
at this particular site. Consideration of the four environmental
factors specified by appellants as being critically important is essential
if the decision maker is to be adequately prepared when the time for decision
respecting nuclear storage arrives.
*572 While we recognize that specific information regarding
the number and type of nuclear weapons to be stored at West Loch cannot be
revealed to the public, this should not preclude preparation of an EIS, available
to the public, generally assessing the impact of such storage. Further, since the EIS in important respects
will be hypothetical (hypothesizing, without conceding, that the facility
will be put to the use for which it has been made capable), factual information
as to the consequences of storage to any specific extent can be based on a
series of hypotheses covering the range of options which the facility has
openly presented to the Secretary.[FN1]
FN1. In addition to public disclosure through a hypothetical
EIS, the Navy's own regulations recognize the fact that the classified nature
of certain essential information here, the specific number and type of weapons
to be stored at West Loch does not excuse the private disclosure of such information
to the Secretary by way of an EIS.
"The fact that a proposed action is of a classified nature
does not relieve the proponent of the action from complying with the requirements
of this Part. Environmental statements,
both draft and final, shall be prepared, safeguarded and disseminated in accord
with the requirements applicable to classified information * * *. When feasible,
these statements shall be organized in such a manner that classified portions
can be included as annexes,
so that the unclassified portions can be made available to the public."
32 C.F.R. s 214.8(i). While such classified matter need not
be publicly disclosed, the public at least is entitled to the assurance that
the Secretary has been privately informed in that area and that such matters
will be taken into consideration by him in reaching any decision.
We note further that the informing
of the decision maker is not the only result flowing from the filing of an
EIS pursuant to NEPA. The public also is informed as to the consequences of
action being sought by governmental agencies. While courts are reluctant to second‑guess an informed
decision maker as to what is or is not in the public interest, an informed
electorate need not be reluctant. For this reason, it seems to us to be important
that the public be informed where, as here, disclosure can be so conditioned
as not to impinge upon national security. Otherwise, agencies would be able to escape the consequences
of the political process as it may operate on an unpopular decision by concealing
from the public the fact that such a decision has been or may be made.
With respect to the Okiokiolepe
Fishpond the court below concluded that the construction and use of the new
West Loch storage facility would have no impact on the fishpond or on the
rare Hawaiian stilt, whose habitat it is. The court so concluded because it accepted the Navy's contention
that only the impact of storing additional conventional weapons at West Loch
could be considered. We leave it for the district court to determine the effect
of s 106 of the Historic Preservation Act and of s 7 of the Endangered Species
Act in light of the information contained in the EIS which is prepared by
the Navy.
Finally, appellants contend
that they should be permitted to amend their complaint on appeal to allege
a denial of Fifth Amendment due process. Appellants may advance this contention
to the district court on remand.
We conclude that while the district
court correctly held that the West Loch project was major federal action,
it erred in holding that the Navy has complied with NEPA to the fullest extent
possible. We conclude that the
EIA and the CEIS provided by the Navy are inadequate and that an EIS is required
under the provisions of NEPA.
Reversed and remanded for further
proceedings. We leave to the
district court the question whether injunctive relief is proper at this time.