ELR Citation: ELR 20383
No(s). 90-00588 DAE (D. Haw. Sep 28, 1990)

The court refuses to issue a preliminary injunction in plaintiffs' National Environmental Policy Act (NEPA) challenge to a joint project between the United States and German armies to remove obsolete chemical weapons from their storage site in Germany and transport them to Johnston Atoll for incineration. President Reagan entered into an agreement with German Chancellor Kohl to remove the chemical weapons from Germany by the end of 1992. That date was moved up to the end of 1990 under an agreement between the Bush Administration and Chancellor Kohl. Plaintiffs assert that the U.S. Army has violated NEPA by failing to prepare a comprehensive environmental impact statement (EIS) for disposal of the weapons and that the Army's segmentation of the removal operations into three stages for purposes of determining its environmental impact was improper. The court initially notes that there is a serious question concerning whether plaintiffs have standing to challenge the transoceanic portion of the operation. It is impossible to determine at this stage whether any of the plaintiffs or their members are in the vicinity of or potentially affected by the shipment, since the route has not been determined.

The court notes that it must accord weight to President Bush's commitment to remove the chemical weapons by the end of 1990. Although there may be no written document between President Bush and Chancellor Kohl, the Secretary of State, acting on behalf of the president, entered into an agreement with Chancellor Kohl to remove the weapons. The court holds that NEPA does not apply to the transportation of weapons within Germany, because the court would be required to address a nonjusticiable political question. Federal statutes should be construed as applying only within the United States absent evidence of contrary congressional intent. Although NEPA's language indicates that Congress was concerned with the global environment, NEPA does not explicitly state that it applies extraterritorially. While NEPA may apply extraterritorially in certain circumstances, actions taken within a foreign country pursuant to an executive commitment and congressional mandate raise foreign policy concerns. Application of NEPA in this case would result in a lack of respect for Germany's sovereignty over actions within its borders. The German government has reviewed and approved the operation. Application of NEPA would also interfere with the president's commitment to remove the weapons by the end of 1990. The court holds that NEPA does not require defendants to consider the transoceanic shipment portion of the project in the same EIS that covers the incineration in Johnston Atoll. The transoceanic portion of the operation does not implicate to the same extent the foreign policy considerations of applying NEPA to actions within a foreign country. However, the transoceanic shipment is a necessary consequence of removal of the weapons from Germany and thus raises many of the same foreign policy concerns. Further, the U.S. Army prepared a global commons environmental assessment for this shipment as required by Executive Order No. 12114. While Executive Order No. 12114 does not preempt application of NEPA to all federal actions taken outside the United States, the Army's compliance with the Executive Order must be given weight in determining whether defendants must consider the global commons portion of the operation in the same EIS that covers the incineration.

The court holds that the EIS for the Johnston Atoll incineration considers an adequate range of alternatives. The Army reasonably did not give detailed consideration to the "no action" alternative or to interim storage of the chemicals in the continental United States. The court holds that the Army's decision not to supplement the EIS for the Johnston Atoll incineration was not arbitrary or capricious. The court holds that there is no private right-of-action under a provision in the Department of Defense Appropriations Act of 1990 requiring the Secretary of Defense to certify to Congress that chemical weapons have been destroyed at Johnston Atoll and that adequate storage capacity exists there before any chemical weapons are moved from their existing storage sites. Even if a private right-of-action exists, defendants have complied with the reporting requirements. The court holds that there is no private right-of-action under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, since it has no implementing legislation and is not self-executing. The court holds that the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter is inapplicable to on-land incineration. The court concludes that the balance of hardships tips in favor of denying injunctive relief. While there are risks involved with the movement and destruction of the European stockpile, every segment of the Army's action has received a hard look under NEPA and halting the shipment at this stage could pose a greater risk to the German people and the environment.

[A previous case in this litigation is published at 21 ELR 20378.]

Counsel are listed at 21 ELR 20378.