ELR Citation: ELR 20378
No(s). 90-00588 DAE (D. Haw. Aug 9, 1990)

The court refuses to issue a temporary restraining order 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 operation into three stages for purposes of determining its environmental impact was improper. The court notes that NEPA applies to the incineration of the weapons at the Johnston Atoll facility, and that plaintiffs may challenge defendants' EIS covering the unloading, storage, and destruction of the weapons at Johnston Atoll. However, the court holds that application of NEPA to the transportation of the weapons within Germany would require the court to address a nonjustifiable political question. Applying NEPA extraterritorially to the removal of the weapons would require the court to review the president's decision to enter into the agreement with Chancellor Kohl.

The court also holds that plaintiffs have not shown that irreparable harm will result if the transportation of the weapons is not halted. While there are clearly risks involved in the transportation of these dangerous weapons, halting the shipments while en route may pose a greater danger to the environment and the German people. A disruption of the joint U.S.-German operation would also have serious foreign policy implications, since the United States has made a commitment to Germany to remove the stockpile by the end of 1990. Further, the German government has determined that the risks of moving the weapons are justified by the need for their destruction.

[A subsequent decision in this case is published at 21 ELR 20383.]

Counsel for Plaintiffs
Denise E. Antolini
Sierra Club Legal Defense Fund
216 First Ave. S., Ste. 330, Seattle WA 98104
(206) 343-7340

Counsel for Defendants
Charles W. Findlay II, Carol Annette Petsonk, Michael J. Malmquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Daniel Bent, U.S. Attorney; Theodore G. Meeker, Ass't U.S. Attorney
P.O. Box 50183, Honolulu HI 96850
(808) 541-2850