The Application for Injunction in Aid of Jurisdiction presented
to THE CHIEF JUSTICE as Circuit Justice for the District of
Columbia Circuit and referred by him to the Court, having been
considered by the Court on oral argument and on the papers and
documents submitted by the parties, is hereby denied.
Mr. Justice DOUGLAS.
I would grant the injunction so that the case can be heard on
the merits. The most serious question tendered is whether the
Atomic Energy Commission has satisfied the mandate of the National
Environmental
Page 404 U.S.
917 , 918
Policy Act of 1969, 42 U.S.C. 4321 et seq. By 102(C) of that
Act,1 Congress directed each agency of the Federal Government to
'include in every recommendation or report on proposals for
legislation and other major federal actions significantly affecting
the quality of the human environment, a detailed statement by the
responsible official on--
'(i) the environmental impact of the
proposed action,
'(ii) any adverse environment effects
which cannot be avoided should the proposal be implemented,
'(iii) alternatives to the proposed
action,
'(iv) the relationship between local
short-term uses of man's environment and the maintenance and
enhancement of long-term productivity, and
'(v) any irreversible and
irretrievable commitments of resources which would be involved in
the proposed action should it be implemented.'
I agree with the Court of Appeals for the District of Columbia
in Calvert Cliffs' Coordinating Committee, Inc. v. United States
Atomic Energy Commission,
449 F.2d
1109, that 'if the decision [under NEPA] was reached [by AEC]
procedurally without individualized consideration and balancing of
environmental factors-conducted fully and in good faith-it is the
responsibility of the courts to reverse.'
That opinion, rendered on July 23, 1971, by a panel consisting
of Judges Wright, Tamm, and Robinson, found that AEC's procedures
in this nuclear area did not comply with the Act and that its
entire approach
Page 404 U.S.
917 , 919
to the environmental problems in the nuclear field violated the
Act.
Another panel of the same Court of Appeals, composed of Judges
Bazelon, Leventhal, and Robinson, said in the instant case, after
examining in camera the relevant environmental documents,
'We are left with difficult questions
about the validity of the AEC's environmental statement. [
Footnote 2] But a hurried review of
several hundred pages of technical documents cannot provide a
satisfactory basis for resolving this litigation.'
463 F.2d
796, 798.
In a later opinion the Court of Appeals did not approve the
findings of the District Court that the order complies with the
Act, saying, 'In our view the case does present a substantial
question as to the legality of the proposed test.'
I have added in an appendix some apparently obvious defects in
AEC's Impact Statement.
Page 404 U.S.
917 , 920
We plainly do not have time to resolve this question between now
and the scheduled detonation. Accordingly, I would grant the
injunction so that a full Court can consider the case on the
merits.
APPENDIX
In the Calvert Cliffs case the Court of Appeals held that the
procedural rules adopted by AEC for the preparation of
environmental impact statements did not meet statutory
requirements. And in the October 5, 1971, opinion by the Court of
Appeals in the instant case it is held that 'responsible opposing
views' on environmental damage 'need be included' in the Impact
Statement in the form of 'a meaningful reference that identifies
the problem at hand for the responsible official.'
The Act requires that reports from federal agencies required by
the Act and the CEQ guidelines to be consulted with respect to the
preparation of an Impact Statement, and which are adverse to the
project with respect to which their views are sought, must be
released as part of the Impact Statement prepared by the agency
responsible for the project.
Here, several such reports were not disclosed. The existence of
these reports became known through newspaper stories and debates on
the floor of Congress. These reports were the subject of the
discovery proceedings which caused such a long delay in this
litigation. The reports in question included those of:
(a) Russell Train, Chairman of CEQ;
(b) Edward E. David, Jr., Director of OST;
(c) William D. Ruckelshaus, Administrator of EPA; and
(d) Glenn T. Seaborg, Chairman of the AEC.
Page 404 U.S.
917 , 921
The CEQ guidelines specifically state that the exemptions in the
Freedom of Information Act are not applicable to agency comments
made in the course of consultations with reference to the
preparation of an Impact Statement. The Act and the regulations
direct that an agency charged with the preparation of an impact
statement 'consult with and obtain the comment on the environmental
impact of the action of federal agencies with jurisdiction by law
or special expertise with respect to any environmental impact
involved.' 36 Fed.Reg. 7724, 7725, 7. The EPA is specifically
designated to be one of the agencies within the contemplation of 7,
ibid. And under 10(f) of the regulations, the AEC would be the
agency 'responsible for making the statement and the comments
received available to the public pursuant to the provisions of the
Freedom of Information Act.' 36 Fed.Reg., at 7726-7727. Besides the
express designation of the EPA, the argument is compelling that the
other agencies in question have 'special expertise' and in the case
of the AEC, 'jurisdiction by law' concerning the various
environmental effects to be expected from an underground nuclear
explosion.
Once noncompliance with the NEPA is shown, the federal courts
have uniformly held that injunctive relief is appropriate.
Disclosure of these statements to the public by any federal
agency which has 'special expertise with respect to any
environmental impact involved' is indeed required by 102(C) of the
Act. And the courts have consistently held that a defect in the
Impact Statement presents a justiciable question and is the basis
for equitable relief. West Virginia Highlands Conservancy v. Island
Creek Coal Co., 4 Cir.,
441 F.2d
232; Environmental Defense Fund v. Corps of Engineers, D.C.,
325 F.
Supp. 749, 759; Wilderness Society v. Hickel, D.C.,
325 F.
Supp. 422.
Page 404 U.S.
917 , 922
Seismic Dangers:
According to the Impact Statement, 'No significant environmental
impact can be expected from the seismic activity caused by the
CANNIKIN test.' I.S., p. 3. Two sorts of seismic effects are at
issue. First, there is the possibility that the explosion might
trigger a natural earthquake of greater force than the bomb itself.
The Impact Statement asserts that
'The possibility of the CANNIKIN test
'triggering' an earthquake with seismic energy comparable to or
greater than that produced by the explosion itself is very
unlikely. Since the understanding of earthquake mechanisms is still
developing and is not yet sufficient for exact calculations, the
possibility of such an occurrence cannot be ruled out. However,
foremost seismologists have asserted that an explosion at Amchitka
will not trigger a large earthquake ... unless the occurrence of
such an event is imminent, very near to the test site.' I.S., p.
3.
This conclusion is based on nothing more than an assertion to
this effect by 'a panel of eminent scientists and engineers ...
acting as consultants to the AEC.' I.S., p. 54, which was
presumably based, in turn, on
'the size and location of the
CANNIKIN explosion, considered along with the size and frequency of
naturally occurring earthquakes and the experience gained by
observation of past nuclear detonations and aftershocks.' I.S., p.
3.
That more should be required is clear from the heretofore secret
memorandum written by Russell Train of the CEQ, the agency charged
with the broadest statutory authority in establishing national
environmental policy.
Page 404 U.S.
917 , 923
According to Mr. Train,
'All the earthquakes triggered by
underground explosions in the various Nevada tests released
substantially less energy than the explosion itself. If one could
establish that this is a necessary condition then there would be no
apprehension with regard to the CANNIKIN event. Unfortunately, this
is not the case. The magnitude of the triggered earthquakes will
depend on the state of strain in the crust in the general region at
which the underground explosion is set off. Extrapolation from the
Nevada experience is uncertain because of the fundamentally
different geologic setting between Nevada and the Aleutians.
Further, experience with MILROW [a one megaton underground
detonation set off on Amchitka in 1969] does not provide a sure
basis for extrapolation. In the highly nonlinear phenomena involved
in earthquake generation, there may be a threshhold value of the
strain that must be exceeded prior to initiation of a large
earthquake.' Train memo, p. 4.
Mr. Train goes on to explain that 'great earthquakes' [those
with a force of 8.0 or more on the Richter scale] are now
considered to result from the cumulative effects of a series of
smaller shocks. (CANNIKIN is expected to register about 7.0 on the
Richter scale.) Referring specifically to great earthquakes
occurring within the past few years in Chile and Alaska, he notes
that the theoretical explanation for these events justifies a
concern that the force of CANNIKIN, which would be the largest
underground device exploded by man, might surpass the 'threshhold'
required to trigger a great quake.
'The suggested explanation of the
Chilean and Alaskan earthquakes in terms of a succession of smaller
earthquakes would support this interpretation. In
Page 404 U.S.
917 , 924
this model a number of lock points stabilize a fault. Once one
lock point is broken, sufficient energy may be released to break
other lock points. If the stored strain energy is large, then the
triggered earthquake could be of much greater magnitude than the
triggering event. The underground explosion could serve as the
first domino of the row of dominoes leading to a major earthquake.
The major fault in the general region of Amchitka is thought to be
some 40 km. beneath the test shot. The strain field will certainly
be altered at this depth by the underground explosion. Observations
of the BENHAM event [ a one megaton detonation at the Nevada test
sites] showed strains exceeding tidal strains at 29 km.' Train
memo, p. 4.
The CANNIKIN yield may be as high as five times that of the
BENHAM and MILROW devices.
The 'lock-point' theory is also explained in a statement by J.
W. Hadley, which had also been suppressed until this week. The
theory is nowhere discussed, nor even 'alluded to,' in the Impact
Statement.
A further misleading conclusion in the Impact Statement is that
CANNIKIN could not trigger a natural quake unless that quake 'is
imminent, very near the test site.' The documents revealed this
week indicate there is a possibility that earthquakes may be
triggered by a rise in underground fluid levels, or by artificial
loading of the earth's crust. Presumably, the fluid lubricates the
rock along a fault line, thus enhancing the potential for slippage.
A series of earthquakes along a dorment fault near Denver has been
definitely attributed to the pumping of waste water deep into the
earth by the Rocky Mountain Arsenal. Train memo, pp. 1-2.
'A second example is found in the
case of earthquakes associated with
Page 404 U.S.
917 , 925
of loading of the earth's crust by these large bodies of water
or by the modification of the groundwater flow or for some other
reason not yet understood, substantial earthquakes have been
associated with construction of large artificial lakes. A recent
earthquake near Koyna Dam in India located in an area that is not
normally seismic killed about 200 people. Similarly, many small
earthquakes occurred when Lake Mead was filled.' Train memo, p.
3.
Increased subsurface fluid pressure will be one result of
CANNIKIN.
'the explosion will alter the
pressure regime in the groundwater. The water pressure in the rocks
interstices will increase due to the compaction of the ground
around the cavity. ... This increase in the fluid pressure will
reduce the friction between fracture separated blocks. The effect
would be greatest on faults oriented parallel to the residual
compressive stresses resulting from the test explosion. Thus, it is
possible that the mechanism involved in the Denver earthquake would
raise the probability of triggering a large earthquake.' Train
memo, p. 3.
Thus, it would appear that 'imminence' may not be necessary for
CANNIKIN to trigger a large earthquake. This possibility is not
mentioned in the Impact Statement.
Another failure of the Impact Statement is to consider the
long-term effects of the CANNIKIN device on the geology. 'The
creation of a large cavity together with a later collapse of the
chimney produces permanent changes in the strain field. ...
However, the strain field resulting from an underground explosion
cannot be calculated with any precision because of the dependence
of the field on the detailed geology which is largely unknown at
any given location.' Train memo, p. 3.
Page 404 U.S.
917 , 926
Not only does the Impact Statement fail to assess the possible
effects of permanent changes in the strain field, but it represents
that the geologic conditions at Amchitka have been fully explored.
I. S., p. 19.
Perhaps the most striking deception of the Impact Statement, in
light of the Train memo, is its attempt to represent that
professional opinion is unanimous that there is no real danger that
CANNIKIN will trigger a large earthquake. According to Mr. Hadley,
however,
'Qualified scientific opinion is in
good agreement that the possibility of triggering a large
earthquake by CANNIKIN is remote, but real. ... Variation of
technical opinion from this position is minor.' Hadley memo, p.
6.
The second seismic effect which might result from CANNIKIN is a
tsunami, or tidal wave. According to the Impact Statement, 'the
possibility of the CANNIKIN explosion or an earthquake causing a
damaging tsunami (seismic sea wave) is even more unlikely [than the
triggering of a great earthquake].' I. S., p. 3. The Train memo
itself points out, 'Large earthquakes in the near vicinity of
Amchitka have not caused destructive tsunamis in the past.' Train
memo, p. 4. Train goes on, however: 'as in the case of earthquakes
it is not possible at this time to assess quantitatively the
probability of a tsunami following the explosion.' Id., at 4-5.
Another heretofore suppressed statement, that of Dr. W. G. Van
Dorn, entitled 'Probability of Tsunami Generation and Connection
with CANNIKIN,' indicates the author to be as deeply concerned
about the danger from the explosion as the 'well-qualified
geophysicists' who believe that the risks are great, and whose
views are contained in an attachment to the Train memo. Those views
remain suppressed. Considering the awesome destructive capabilities
of even a
Page 404 U.S.
917 , 927
'small' tsunami, and its ability to retain its destructive force
thousands of miles from its source, it would seem incumbent upon
the drafters of the Impact Statement to explore in greater detail
the sources of such responsible concern.
Venting:
The second category of environmental hazards from the CANNIKIN
event are those relating to the danger that radioactive material
from the explosion might escape to the surface. The most serious
problem is the effect on groundwater movement, for the water table
on Amchitka extends almost to the surface.
According to the analysis of the Impact Statement, the most
probable mode of groundwater circulation by which radionuclides
might escape into the sea would take 'a thousand years or more.'
I.S., p. 24. The least likely
'involves the very unlikely
assumption that the water within the cavity-chimney system becomes
completely mixed [with radionuclides, predominately tritium],
coupled with a second unlikely assumption that the flow through the
rock occurs only through a system of interconnecting fractures.
Estimates using these assumptions indicate contaminated water would
reach the sea in ... some three years after the explosion. This
would introduce tritriated [radioactive] water into the ocean with
an initial concentration about 1,200 times that of the RCG
[recommended concentration guideline] for water.' I.S ., p.
24-25.
Indeed, the Impact Statement thinks it far more probable that
only 'some small fraction of the tritiated water' will 'move upward
in the chimney rubble.' And only relatively near the surface will
increased perme-
Page 404 U.S.
917 , 928
ability provide a path to the sea. The Impact Statement
estimates that no tritium would be released into the water for over
a hundred years through this mechanism. I.S., p. 24.
The Train memo, however, relying on calculations from the USGS,
comes to a different conclusion.
'Water in the chimney would move to
the sea at a rate dependent on the hydraulic head, the permeability
of existing aquifers and permeability of any new fractures opened
up by the explosion. USGS calculations indicate a time for such
movement might be as short as one to two years. These are short
times and are inconsistent with estimates made by AEC that tritium
will be discharged into the ocean only 145 years after the
explosion. ... If the shorter times (5 to 10 years) postulated
above are correct then the level of radioactivity in the
groundwater entering the ocean would be in excess of ten thousand
to one hundred thousand maximum permissible concentration for
water.' Train memo, p. 5.
Thus, the judgment of the Chairman of the Council on
Environmental Quality is that it is likely, if not probable that
within 10 years of CANNIKIN, radioactive water of concentrations
perhaps 100,000 times permitted maximums will reach the sea near
Amchitka. Inasmuch as this estimate is 100 times greater than their
own, I should think it would require consideration by the drafters
of the Impact Statement.
Another document shown to the petitioners herein for the first
time this week supports the Train analysis:
'it must also be admitted, and this
is the basis for the Council on Environmental Quality's [Train's]
Page 404 U.S.
917 , 929
comments on CANNIKIN, that the rubble chimney constitutes a
highly permeable vertical short circuit of the groundwater system,
and that the hydrological measurements indicate zones of fairly
permeable rock higher in the section.' Merritt, 'The Ground Water
Problem at Amchitka,' pp. 1-2.
The USGS recognized that its water migration time scale was
highly inconsistent with that of the AEC; in so doing, it
reaffirmed its original position:
'It should be emphasized that the
foregoing analysis is heavily weighed in favor of the worst case.
However, it is difficult to conceive of conditions which might
improve the outlook significantly.' USGS, 'Effects Evaluation
Report-Cannikin Event.'
The AEC was aware of the USGS position with respect to
groundwater migration. It simply ignored it.
More disturbing than the failure of the Impact Statement to meet
the arguments advanced by its critics perhaps, is a deliberate
distortion, in certain instances of those opposing views. Thus, the
statement argues that even were the 'extreme case' to occur, and
radioactive water migrate to the sea within a few years,
'dilution of that water by the sea
water would take place rapidly. With the seeping water being swept
up by the passing ocean current and mixed through tidal action and
wave action, oceanographers have estimated that there would by an
effective dilution factor of about 100,000 within a few hours. In
this manner, the sea water tritium would quickly dilute to levels
comparable to those freshwater levels acceptable for lifetime use
by humans.' I.S., p. 25.
Compare this use of the dilution figure with that of Train:
'Even if the dilution is as great as
a hundred thousand, there is the possibility of concentration of
tri-
Page 404 U.S.
917 , 930
tium well above background levels in various steps of the food
chain.' Train memo., p. 5.
Mr. Justice BRENNAN and Mr. Justice MARSHALL would grant a
temporary restraining order pending plaintiffs' filing of a
petition for certiorari and action by the Court on the petition.
The question to be presented is whether the detonation of CANNIKIN
would be illegal if the Atomic Energy Commission did not comply
with the mandate of 102(C) of the National Environmental Policy Act
of 1969. The Court of Appeals did not accept the holding of the
District Court that the Commission had complied with 102( C),
stating, 'In our view the case does present a substantial question
as to the legality of the proposed test.' The oral argument
confirmed this view. In that circumstance, to avoid mootness, the
Commission must be enjoined from proceeding with CANNIKIN until the
Court decides whether to review the question of its legality.
Footnotes
Footnote 1 Guidelines for
agency action are provided by the General on Environmental Quality
of which Russell E. Train is Chairman. See 36 Fed. Reg. 7724.
Footnote 2 As the Court of
Appeals held in an earlier opinion in this case, Committee for
Nuclear Responsibility, Inc. v. Seaborg, D.C.Cir.,
463 F.2d
783, Congress did not intend, by approving funds for the
Cannikin detonation, to repeal the NEPA as it applied to the
test.
'On the contrary, there is an
affirmative indication that at least some of the Congressmen voting
for the authorization and appropriations measures specifically
contemplated that the claim of illegality remained for resolution
by the courts.' p. 786.
See Remarks of Rep.Price, 112 Cong.Rec. 6785, July 15, 1971:
'This matter is before the court. I
submit that if there has been any violation of the law, the court
will supply the appropriate remedy.'
Other federal courts have similarly concluded that congressional
appropriations for a project subject to NEPA are not to be taken as
expressing any view with respect to compliance with NEPA.
Environmental Defense Fund v. Corps of Engineers, D.C.,
325 F.
Supp. 749, 762-763.