ELR Citation: ELR 20533
No(s). 84-3542 (D.D.C. May 31, 1985)

The court holds that the Army need not prepare an environmental impact statement (EIS) for the contemplated testing of genetically altered materials at the proposed Aerosol Test Facility at the Dugway, Utah, proving ground, but holds that the environmental assessment (EA) on renovation of the facility was conclusory and failed to identify matters of environmental concern. The court first holds that although the renovated facility will be capable of testing new types of toxins and biological agents, at this juncture such testing is "contemplated" but not "proposed," making consideration of the impacts of such testing unnecessary and unacceptably speculative. The court then holds, however, that the EA is inadequate because it fails to take a "hard look" at the problem, ignores relevant areas of environmental concern, and does not provide a convincing case for the insignificance of potential environmental effects. Specifically, the court faults the EA for its conclusory statements, its unsupported assumptions, and its neglect of unique geographical characteristics of the area, the controversiality of the action, possible unknown effects on humans, short- and long-term effects on the region and society, effects on endangered species, and the consistency of the action with environmental laws. The court adds that the assessment does not directly consider whether an EIS should be prepared. Finally, the court grants an injunction until an adequate EA is completed. There is a presumption for injunctive relief for National Environmental Policy Act violations, and the potential risks of an accident both make the violation substantive and fulfill the irreparable injury, third party, and public interest tests for injunctive relief. The court also notes that any delay caused will likely not significantly harm national security interests.

Counsel for Plaintiffs
Edward Lee Rogers
1718 P St., NW, Suite T-200, Washington DC 20036
(202) 387-1600

Counsel for Defendants
Gary B. Randall
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5313

Capt. Nancy Glazier
Headquarters Department of Army
Attn: DAJA-LTS, Pentagon, Washington DC 20310
(202) 653-5843