ELR Citation: ELR 20529
No(s). 71-1854 (D.C. Cir. Oct 28, 1971)

Interlocutory order of district court requiring in camera examination of certain documents for which plaintiffs sought discovery in their suit to enjoin the detonation of a nuclear warhead on Amchitka Island (Project Cannikin) is affirmed. Executive privilege does not bar the judiciary from in camera review and disclosure of factual documents setting out the possible environmental consequences of the blast, where they are essential for disposition of the lawsuit and where military or diplomatic secrets are not involved. Moreover, the doctrine of the separation of powers cannot be used to preclude effective judicial review of administrative decisions by absolutely barring court examination of the information upon which those decisions are based. Those documents which constitute agency comments on the 102 Impact Statement prepared by the AEC for Project Cannikin pursuant to the National Environmental Policy Act of 1969 and which were submitted to the AEC before issuance of its final Impact Statement must be included in the statement. The Plaintiffs' application for stay pendite lite is denied.

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

Harold P. Green
720 Twentieth Street, NW
Washington, DC 20006
(202) 676-6366

Counsel for Defendants:
Edmund B. Clark Attorney
Shiro Kashiwa Asst. Attorney General
Thomas L. McKevitt
Peter R. Steenland Attorneys
Department of Justice
Washington, DC 20530
(202) 739-2701

Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.