The passage of the National Environmental Policy Act (NEPA)¹ precipitated a recurring conflict between the needs of the military to prevent disclosure of military and diplomatic secrets and the public's legislated right to obtain information about the environmental impacts of government actions. NEPA brings environmental considerations into government decisionmaking and simultaneously requires public disclosure of the results of the process. Embodied in the text of the Act is Congress' answer to the tension between the goal of full disclosure and the need for adequate protection of military secrets; such information may be withheld from the public pursuant to the withholding criteria set out in the Freedom of Information Act (FOIA).² The question whether an environmental impact statement (EIS) or parts of an EIS containing information involving issues of national security may be kept secret has not, until recently, been clearly defined in the case law. However, late in 1981, the Supreme Court addressed the interplay between military secrecy, the FOIA, and NEPA.

In Weinberger v. Catholic Action of Hawaii/Peace Education Project,³ the Court held that when an action involves properly classified national security information, such information need not be revealed. Further, the Court ruled, where an agency cannot, due to "national security" reasons, admit or deny the existence of a proposal, the courts cannot order the preparation of an EIS because the very existence of the action triggering the need for the EIS is "beyond judicial scrutiny."