ELR Citation: ELR 20469
No(s). 71-1732 (D.C. Cir. Oct 5, 1971)

District court's order for summary judgment in favor of defendant reversed and remanded in suit challenging the Atomic Energy Commission's plans to detonate an underground nuclear warhead on Amchitka Island, Alaska. The court of appeals holds that the grant of summary judgment prematurely foreclosed discovery proceedings begun by plaintiff to show that unresolved factual questions existed with regard to the adverse environmental effects of the blast. Congress' authorization and appropriation for the test did not represent a conclusive acceptance of the environmental analysis set out in the environmental impact statement already submitted by the AEC under the National Environmental Policy Act (NEPA). Further, NEPA requires, and the court must enforce, a full airing of the environmental impact of the project through the §102 procedure. Thus, the decisionmaker for whom the statement is prepared must be informed of the full range of responsible opinion on the probable environmental effects of alternative decisions. Responsible scientific opinion which opposes and competes with the agency view must be set forth in the impact statement; to exclude it is arbitrary and impermissible. Lastly, NEPA clearly indicates that the agency responsible for a project should obtain and release the adverse reports of sister agencies which have identified potential environmental harm that might result from the project. A stay pendente lite is unnecessary, because defendants have agreed to give plaintiffs ample notice before proceeding with the test, at which time a stay might be sought from the district court.

Counsel for Plaintiffs:
David Sive
Samuel Weissbard
Winer, Newberger and Sive
445 Park Avenue
New York, NY 10017
(212) 421-2150

Counsel for Defendants:
Shiro Kashiwa Assistant Attorney General
Thomas McKevitt Attorney
Department of Justice
Washington, DC 20530
(202) 739-2701

Before Bazelon, Chief Judge, and Leventhal and Robertson, Circuit Judges.