Catholic Action of Hawaii/Peace Educ. Project v. Brown, 79-4330

• Decision Date: 09 October 1980
• Docket Number: No. 79-4330,79-4330
• Citation: 643 F.2d 569
• Parties: , 10 Envtl. L. Rep. 20,683 CATHOLIC ACTION OF HAWAII/PEACE EDUCATION PROJECT et al., Plaintiffs-Appellants, v. Harold BROWN, Secretary of Defense, et al., Defendants-Appellees. C.A.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 569

643 F.2d 569

14 ERC 1823, 10 Envtl. L. Rep. 20,683

CATHOLIC ACTION OF HAWAII/PEACE EDUCATION PROJECT et al Plaintiffs-Appellants, v. Harold BROWN, Secretary of Defense, et al., Defendants-Appellees.

C.A. No. 79-4330.

United States Court of Appeals Ninth Circuit.

Submitted Jan. 16, 1980.

Decided July 17, 1980.

Rehearing and Rehearing En Banc Denied Oct. 9, 1980.

Nancy Stearns, Center for Constitutional Rights, New York City, for plaintiffs-appellants.

Martin Green, Washington, D. C., argued, Walter M. Heen, U. S. Atty., Elliot Enoki, Asst. U. S. Atty., Honolulu, Hawaii, on brief, for defendants-appellees.

On Appeal from the United States District Court for the District of Hawaii.

Before MERRILL, SCHROEDER and FLETCHER, Circuit Judges.

MERRILL, Circuit Judge:

This action was brought by appellants, several Hawaii based environmental groups and individuals concerned with the protection of the environment. They seek to require the United States Navy to file an environmental impact statement (EIS), pursuant to the National Environmental Policy Act (NEPA), and to comply with other federal statutes protecting endangered species and historic sites in connection with alleged plans to store nuclear weapons at the West Loch branch of the Lualualei naval magazine on the island of Oahu, Hawaii.

The West Loch facility has, since 1959, been used for handling and storage of ammunition. It is located one mile from the final approach to a major runway at the Honolulu International Airport and in close proximity to airports at Hickham Airforce Base and Barber's Point Naval Air Station.

In 1975, the Navy prepared an environmental impact assessment (EIA) of the environmental consequences which might result from the planned transfer to West Loch of weapons being stored at Waikele branch of the Lualualei magazine. The assessment concluded that the construction of the magazines and buildings to accommodate the relocation of weapons would have no significant impact on the environment beyond that of the weapons previously stored there. Consequently, it concluded that no EIS was necessary, and none was prepared. However, the EIA did not take into consideration the possibility that nuclear weapons might be stored at the new facility; only conventional weapons had previously been stored at West Loch.

In March, 1977, a contract was let for a portion of the construction dealt with in the EIA. In April, 1978, a contract was let for the balance.

In 1978, the Navy prepared a candidate environmental impact statement (CEIS) entitled "Nuclear Aspects of Naval Weapons Systems Storage." It dealt generally, without reference to any specific site, with the hazards connected with storage of nuclear warheads and concluded that "The handling, storage and transportation of nuclear weapons present no hazards to the environment." It did not discuss the likelihood or potential effects of nuclear explosion or detonation resulting from sabotage or an accident caused by crash of an airplane into a storage facility.

In March, 1978, this action was brought seeking an injunction against the building of the new facilities until an EIS had been filed. A preliminary injunction was sought and denied. The new facilities have now been completed. It is stipulated that the new construction is capable of maintaining and storing nuclear weapons. Navy regulations, in the interest of national security, will permit it neither to admit nor deny that plans exist to store nuclear weapons there.

The Okiokiolepe Fishpond, listed on the National Register of Historic Places, is located 750 feet from the new storage site. It is virtually the only fishpond left of many that once were located in the Pearl Harbor area. The Hawaiian stilt is a rare waterbird whose habitat is in the West Loch area.

It is the contention of appellants that the EIA does not satisfy the requirements of NEPA, in that it has ignored four critically important environmental factors: (1) The risk of nuclear accidents; (2) The enhancement of that risk by the physical proximity of the airports; (3) The effects of any nuclear accident upon the surrounding population and environment of Hawaii; and (4) The effects of continual low-level radiation from the storage of the weapons near populated areas. It is contended that the CEIS, not being site specific, can supply none of these factors.

The district court concluded that the West Loch project was major federal action significantly affecting the environment, and that the defendants were required to comply with NEPA "to the fullest extent possible." It concluded, however, that the Navy had complied so far as was possible, given certain national security provisions of the Atomic Energy Act and certain Navy regulations relative to the classification of nuclear weapons. Appellants' case was dismissed, and this appeal followed.

The Navy contends in its brief on appeal:

" * * * the Atomic Energy Act, and the various Department of Defense and Navy directives which implement that Act, forbid the disclosure of information relating to the presence of nuclear weapons at military bases. There is simply no way that the Department of the Navy can on the one hand...