NEPA and National Defense: Trident Base Allowed to Proceed Despite Inadequate Impact Statement

On October 13, 1976, the United States Court of Appeals for the D.C. Circuit found the United States Navy's environmental impact statement for construction of the Trident nuclear submarine base in Bangor, Washington, deficient in two respects, but allowed construction to continue.¹ Placing an interesting gloss on §§ 101(b)(1) and 102(2)(C)(iv) of NEPA, the court disapproved the Navy's failure to forecast Trident's environmental impacts beyond 1981, the projected completion date for the base. The court, in an opinion written by Judge Tamm, also examined the relationship between NEPA and national defense, holding that the Navy's strategic decisions relating to Trident were not exempt from NEPA's requirements. No injunction was issued, however, because the Navy's decision to proceed with the Trident base reflected a good-faith weighing of environmental factors and was not arbitrary. A second majority opinion written by Judge Leventhal and joined in by Judge Kaufman suggested that strong strategic considerations in favor of a project escalate the threshold of the NEPA violation required to warrant injunctive relief.

Plaintiffs in the case, local and national environmental groups and two persons residing in the Bangor area, had raised a number of questions concerning the adequacy of the impact statement, and alleged the Navy had failed to follow proper decision-making procedures regarding Trident. After a trial on the merits, the district court ruled against plaintiffs on all their allegations and dismissed the complaint.²

At trial, the Navy expressly disclaimed the defense that military weapons program decisions are exempt from NEPA only to resurrect a somewhat paraphrased version of this argument in its brief to the court of appeals, asserting that its "military strategic decisions" concerning Trident were not subject to judicial review under NEPA. Judge Tamm found this nothing more than "a flagrant attempt to exempt from the mandates of NEPA all such military actions under the overused rubric of 'national defense.'" In the court's view, there is no support in either the statutory language or the case law for implying such an exemption. Section 102 of NEPA³ and the Calvert Cliffs⁴ decision direct all (emphasis the court's) federal agencies to comply with its requirements, and only a clear and unavoidable conflict in statutory authority, which the Navy had not shown in this case, can obviate this obligation.⁵ The court pointed to portions of the Department of Defense NEPA compliance regulations⁶ and the Council on Environmental Quality's environmental impact statement (EIS) preparation Guidelines⁷ as further support for its conclusion that the Navy must weigh the environmental costs of the Trident base even though the project has important national security implications.

Having disposed of this threshold defense, the court went on to examine the adequacy of the EIS in a number of areas, and discovered two deficiencies to be expanded on remand of the statement to the Navy. The first failing was that the impact statement did not set forth the environmental aspects of alternatives to the Bangor Trident base and thus could not serve as a fully-informative basis for the Navy's decision to proceed with the project.

The second, and more interesting, deficiency was the impact statement's failure to consider Trident's environmental impacts beyond 1981, the initial target date for completion of the base. In the court's view, this inadequacy was unreasonable in light of the § 102(2)(C)(iv) mandate that the EIS consider

the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity,⁸

and the national policy of "fulfill[ing] the responsibilities of each generation as trustee of the environment for succeeding generations" articulated in § 101(b)(1).⁹

The Navy did not claim inability to forecast the impacts likely to occur after 1981 but simply considered that the date when Trident is scheduled to begin operations represented a reasonable cutoff for consideration. Acknowledging that an agency need not "foresee the unforeseeable" or make "crystal ball" predictions, the court nonetheless held that the Navy must at least attempt to forecast the environmental effects of Trident's future operation. The impacts of operations may differ significantly from those during construction, and it is incumbent upon the agency to examine both the environmental ramifications of constructing the base and the impacts generated by the base once it is in operation. Absent an incapacity to predict any further into the future than 1981, failure to forecast impacts from such a major facility as the Trident base beyond that date not only fails to ensure that the environment will be preserved for future generations but also does not protect the present generation's environmental interests. Judge Leventhal reiterated this point by noting that "the cumulative impact of ordinary and probable human activities may be deeper than that of actions deliberately intended to alter the environment," and emphasizing that a meaningful EIS must "examine the long term consequences of operating a project as well as the immediate effect of constructing it."

The court's ruling on the necessity for forecasting environmental [6 ELR 10276] impacts related to operation of the base after 1981 sets a precedent applicable to other NEPA litigation, even though, as Judge Tamm pointed out, assessment of operations impacts prior to construction is already an accepted requirement for projects such as highways.¹⁰

Although the court rejected the notion that strategic decisions are exempt from NEPA's requirements, its ruling on the issue of relief indicates that courts are less willing to grant injunctions in NEPA cases that involve national defense considerations. Judge Tamm ruled that the Navy gave proper weight to environmental factors in deciding to proceed with the "strategically important" Trident installation in Bangor, after emphasizing that the agency's primary obligation is to provide for the national defense. In his view, issuance of an injunction pending revision of the EIS was not necessary because the Navy did not arbitrarily decide to construct the base after its good-faith determination that strategic considerations strongly recommended this course of action and that all the environmental assessments showed only minor irreversible impacts would result.

Judge Leventhal's opinion refined this analysis. Admitting that the Navy did not fully comply with NEPA's requirements, he pointed out that the Trident decision-making process was already under way when the statute was enacted. In such circumstances, it is relevant to the issue of injunctive relief that further delay might injure the nation's defense posture. In fact, Judge Leventhal concluded, the possibility of some damage to strategic interests put this case in a different category from litigation concerning non-strategic actions such as rivers and harbors projects of the Corps of Engineers. He noted that the Navy's assessment of environmental factors was insufficient and may not have been done with good-faith objectivity, but this did not, in his view, constitute the kind of gross violation of NEPA necessary to override strong strategic considerations.

Judges Tamm and Leventhal both used a balancing test to determine that injunctive relief was not appropriate, but their formulations and application of this test differ. Judge Tamm held an injunction was not warranted since the Navy's decision to proceed had not been arbitrary, in that the strategic benefits of the project were considerable and its environmental costs minimal. Instead of weighing project benefits against environmental costs, Judge Leventhal balanced the seriousness of the agency's NEPA violation against the strength of the strategic considerations in favor of continuing work on the project.

The relationship between NEPA and national defense is thus a special one. Strategic military decisions are not exempt from NEPA's requirements, and accompanying impact statements must include forecasts of environmental effects related to future operations as well as present construction. However, such decisions are apparently less vulnerable than non-strategic actions to injunctive relief when there has been a violation of the statute.

1. Concerned About Trident v. Rumsfeld, __ F.2d __, 6 ELR 20787 (D.C. Cir. Oct. 13, 1976).

2. Concerned About Trident v. Schlesinger, 400 F. Supp. 454, 6 ELR 20047 (digest) (D.D.C. Aug. 22, 1975).

3. 42 U.S.C. § 4332(2), ELR 41009.

4. Calvert Cliffs Coordinating Committee, Inc. v. AEC, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971).

5. Flint Ridge Development Co. v. Scenic Rivers Ass'n, 426 U.S. __, 96 S. Ct. 2430, 6 ELR 20528 (June 24, 1976).

6. 32 C.F.R. § 214. 1-2 (1975).

7. 40 C.F.R. § 1500.4(a) (1975).

8. 42 U.S.C. § 4332(2)(C)(iv), ELR 41010.

9. 42 U.S.C. § 4331(b)(1), ELR 41009.

10. See generally City of Davis v. Coleman, 521 F.2d 661, 5 ELR 20633 (9th Cir. 1975); Swain v. Brinegar, 517 F.2d 766, 5 ELR 20354 (7th Cir. 1975); Rankin v. Coleman, 394 F. Supp. 647, 5 ELR 20626 (E.D.N.C. 1975); Appalachian Mountain Club v. Brinegar, 394 F. Supp. 105, 5 ELR 20311 (D.N.H. 1075).