Concerned About Trident v. Rumsfeld, s. 75-1515

• Decision Date: 13 July 1977
• Docket Number: 75-2053,Nos. 75-1515,s. 75-1515
• Citation: 180 U.S.App.D.C. 345,555 F.2d 817
• Parties: , 180 U.S.App.D.C. 345, 6 Envtl. L. Rep. 20,787 CONCERNED ABOUT TRIDENT et al., Appellants, v. Donald H. RUMSFELD, Individually and as Secretary of the Department of Defense, et al. (two cases).
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 817

555 F.2d 817

9 ERC 1370, 180 U.S.App.D.C. 345, 6

Envtl. L. Rep. 20,787

CONCERNED ABOUT TRIDENT et al., Appellants, v. Donald H. RUMSFELD, Individually and as Secretary of the Department of Defense, et al. (two cases).

Nos. 75-1515, 75-2053.

United States Court of Appeals, District of Columbia Circuit.

Argued May 21, 1976.

Decided Oct. 13, 1976.

As Amended July 13, 1977.

David Sive, New York City, with whom Ronald J. Wilson, Washington, D.C., was on the brief for appellants.

Carl Strass, Atty., Dept. of Justice, Washington, D.C., with whom Peter R. Taft, Asst. Atty. Gen., Irwin L. Schroeder, Jr., and Edmund B. Clark, Attys., Dept. of Justice, Washington, D.C., were on the brief for federal appellees. Wallace H. Johnson, Asst. Atty. Gen., Washington, D.C., at the time the record was filed, also entered an appearance for Federal appellees.

Raymond M. Momboisse, Sacramento, Cal., with whom Ronald A. Zumbrun, Sacramento Cal., John H. Midlen, Jr., and Glenn E. Davis, Washington, D.C., were on the brief for appellee, Pacific Legal Foundation.

Kenneth A. MacDonald, Seattle, Wash., filed a brief on behalf of American Friends Service Committee as amicus curiae in 75-2053 urging reversal.

Before TAMM and LEVENTHAL, Circuit Judges and KAUFMAN, ^* United States District Judge for the District of Maryland.

Opinion PER CURIAM.

Opinion by Circuit Judge TAMM.

Concurring opinion filed by Circuit Judge LEVENTHAL.

PER CURIAM:

The opinion of Judge Tamm is an opinion for the Court. While Judges Leventhal and Kaufman concur generally in that opinion, they wish to express certain refinements on the reasoning. In these respects the opinion of Judge Leventhal is also an opinion for the Court.

TAMM, Circuit Judge.

The appellants here, Concerned About Trident, et al. raise questions concerning the adequacy of the environmental impact statement (EIS) prepared under the supervision of the Navy for its newest atomic missile submarine system (Trident), located in Bangor, Washington. ¹ In addition, they contend that the Navy failed to follow proper procedures (e.g. failed to weigh the environmental costs of a dedicated site versus its benefits to the public) mandated by the National Environmental Policy Act of 1969 (hereinafter referred to as NEPA). 42 U.S.C. § 4321 et seq. (1970). The district court found that the EIS and Navy procedures fully complied with the mandates of NEPA and therefore dismissed the complaint. ² After a thorough review of the voluminous record in this case, we must agree that the Navy decisionmaking process and the EIS satisfy NEPA in all respects save two. For the reasons set forth, we affirm in part, reverse in part, and remand for a more extended discussion and consideration by the Navy of alternatives to the dedicated site system and their environmental impacts, along with further study by the Navy of the impacts which will be generated by the Trident program after 1981.

I

The history of Trident (called "ULMS" prior to May 16, 1972) begins in 1966 when the Department of Defense began a secret study of alternative systems of nuclear deterrence (Strat-X Study). The Strat-X Study Report recommended in 1967 that a hardened silo-base missile system, when combined with a new submarine-launched ballistic-missile system, was preferable to the other candidate systems examined. In February, 1968, the Deputy Chief of Naval Operations ordered research and development of Trident to begin along the lines of the Strat-X Report. ³ The aim of Trident is to maintain the superiority and survivability of the United States' sea-based nuclear deterrent force in the face of anticipated Soviet anti-submarine warfare improvements over the next few decades. Trident is essentially a further development of the presently deployed Polaris/Poseidon nuclear-powered ballistic-missile submarines which are central to the strategic deterrent force of the United States. ⁴ In order to achieve the key survivability prerequisite, the new system incorporated the use of a complete logistical support/refit facility (known as a "dedicated site"). All tasks necessary for the maintenance, repair, and support of the Trident submarines will be performed at this single dedicated base so that the submarines will spend as little time as possible away from the safety of deep water. The location of this dedicated site was the focus of studies beginning in 1970. Eighty-nine potential sites were initially reviewed. The studies took into consideration the operational requirements of the submarine, the capability of the base to support the Trident missile, the amount of environmental disturbance, and the availability of sufficient land. Meanwhile, the Deputy Secretary of Defense tentatively scheduled the deployment of Trident for 1981. This deployment date was subsequently re-set for various periods ranging from 1975 to sometime in the early 1980's. On December 23, 1971, the Secretary of Defense designated 1978 as the first firm date for the initial deployment of Trident. ⁵

By 1972 the original 89 potential sites had been reduced to 19 nominees. Finding of Fact No. 59; J.A. at 719a-20a. Candidate environmental impact statements were then prepared when it became apparent that four sites were capable of supporting the Trident Program. The district court found that the decisionmakers took into account the environmental assessments laid forth in the candidate EIS's in arriving at their final site selection. Finding of Fact No. 74; J.A. at 728a-29a. The overwhelming strategic and tactical advantages of locating Trident on the Pacific dictated that the Defense Department choose Bangor, Washington, the only one of the four remaining sites located on the Pacific Ocean. Once the site had been tentatively selected, an in-depth environmental assessment of the impacts that Trident would have on the Bangor community commenced. Construction did not begin until the Navy was convinced in August of 1974, after reviewing the final EIS, that the environmental disturbance which would be caused by Trident did not outweigh the military benefits which Trident would achieve for the country. ⁶

The Navy signed a contract on June 22, 1973, with a number of firms massed together under the title of the Trident Joint Venture. This group of firms undertook the task of preparing three reports for the Navy concerning the support site the Preliminary Engineering Studies, the Preliminary Master Plan, and the Environmental Impact Statement. The Navy instructed the Joint Venture to pay close attention to environmental considerations in its interdisciplinary approach to planning for this project. As a result of this admonition, several technical changes were made in the engineering plans in order to ameliorate the environmental impact of certain base facilities. ⁷ The Joint Venture submitted two preliminary EIS's in 1973 to the Navy and local officials and sought their comments. A more complete Draft EIS of 1974 was sent to all appropriate federal, state, and local agencies and was made available to the public. A public hearing on this document produced numerous oral and written comments which were incorporated, along with appropriate responses, into the Final EIS. With the submission to the Council on Environmental Quality on June 19, 1974, of the Final EIS, the district court found that

(t)he Navy had then completed preparation of Environmental Impact Assessments, Candidate EIS's or Draft and Final EIS's, as appropriate, on every action involved in the Trident Program.

Finding of Fact No. 99; J.A. at 739a.

In addition to this brief history of Trident, it is necessary to keep in mind some of the broad characteristics of the community chosen for this dedicated support site. Bangor, Washington is located in Kitsap County on the Kitsap Peninsula in the Puget Sound Basin between the Olympic and Cascade Mountain Ranges in Northwestern Washington. It is a semi-rural area with one small city and a population density of 259 persons per square mile. When Trident reaches its deployment stage, an estimated 30,000 people will be added to the Kitsap area. The Trident Program will occupy approximately 7,000 acres on the Hood Canal in the Puget Sound Basin, Kitsap County. The support site is being built at an existing naval installation (Bangor Annex) which has been used by the Navy primarily as an ammunition depot. The land within the boundaries of the Bangor Annex is presently planned for industrial use by the Kitsap County comprehensive plan. ⁸ No more land need be acquired for the dedicated site. The Kitsap community is generally recognized as stable and lower-middle to middle-class. The county's economy depends to a great extent upon the employment generated by naval installations. ⁹

II

The Navy raises several preliminary arguments to the effect that its action is completely free from the strictures of NEPA and court review. ¹⁰ The only one which merits any extended discussion is the rather cursory argument that "NEPA cannot possibly apply" to strategic military decisions made by the Department of Defense-Navy. ¹¹ Appellees' Brief at 7-9. We view this as a flagrant attempt to exempt from the mandates of NEPA all such military actions under the overused rubric of "national defense". This effort to carve out a defense exemption from NEPA flies in the face of the clear language of the statute, Department of Defense and Navy regulations, Council on Environmental Quality ("CEQ") Guidelines, and case law.

Section 102 of NEPA clearly instructs all federal agencies to comply with its requirements. 42 U.S.C. § 4332 (1970). The only time that a federal agency can avoid this inclusion is when a clear and unavoidable conflict in statutory authority exists. See Flint Ridge Dev. Co. v. Scenic Rivers Association, 426 U.S. 776, 96 S.Ct. 2430, 49 L.Ed.2d 205 (1976). The Navy has pointed to no existing specific statutory authority prohibiting compliance with NEPA in this case or making such...