ELR Citation: ELR 20432
No(s). 89-6121 (2d Cir. Dec 5, 1989)

The court holds that the Navy's compliance with the National Environmental Policy Act (NEPA) in deciding to establish a homeport on Staten Island for ships that can carry nuclear weapons is not subject to judicial review. The Navy's environmental impact statement on the decision did not discuss nuclear weapons or their environmental impacts, except to state that national security interests preclude the Navy from confirming or denying the presence of nuclear weapons aboard any particular ship. The court first holds that it has subject matter jurisdiction because the district court properly certified this issue as final under Rule 54(b) of the Federal Rules of Civil Procedure. The court next holds that the Navy had not waived its exemption from the NEPA requirement to publicly disclose its plans. NEPA incorporates by reference the national security exemption in the Freedom of Information Act. Navy officials had testified publicly that the ships would be capable of carrying nuclear weapons, but this is the same as testifying that they would actually carry nuclear weapons. Similarly, statements of a retired admiral are not sufficient to waive the exemption. The court next holds that the district court properly denied a request for additional discovery of prior Navy statements. Only official statements already on the public record, not unauthorized leaks, would be relevant, and such official statements would be easily discoverable without the need for additional time. Finally, the court holds that the Navy's internal compliance with NEPA in deciding to establish a nuclear presence at the homeport is not subject to judicial review. An environmental impact statement must be prepared for proposed actions but not for actions that are merely contemplated; it cannot be established that the Navy has proposed to deploy nuclear weapons so long as it neither confirms nor denies such deployment. Though the plaintiffs assert that a classified General Accounting Office report confirms that the Navy proposed to deploy nuclear weapons, the plaintiffs do not have access to the report, and their reasonable belief of its contents is insufficient to bootstrap access to it.

[Related opinions appear at 17 ELR 21156 and 18 ELR 20444.]

Counsel for Plaintiffs-Appellants
Leonard M. Marks
Gold, Farrell & Marks
41 Madison Ave., New York NY 10010
(212) 481-1700

Counsel for Defendants-Appellees
Robin Greenwald, Ass't U.S. Attorney
U.S. Courthouse, 255 Cadman Plaza E., Brooklyn NY 11201
(718) 330-7106