ELR Citation: ELR 20534
No(s). A-483 (U.S. Nov 6, 1971)

Application for Injunction to delay detonation of nuclear warhead on Amchitka Island, "Cannikin," presented to the Chief Justice and referred by him to the Court, is denied. Justices Brennan, Marshall, and Douglas dissent because they find the case presents a substantial question as to the legality of the proposed test under the National Environmental Policy Act of 1969. To avoid mootness the Cannikin dissenters find that the test must be enjoined pending a Court decision whether to review the question of its legality.

Counsel for Plaintiffs:
David Sive
Winer, Neuberger & Sive
445 Park Avenue
New York, NY
(212) 421-2150

Counsel for Defendants:
Erwin N. Griswold Soliciter General
Department of Justice
Washington, DC 20530
(202) RE7-8200

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 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.