Greenpeace USA v. Stone, Civ. No. 90-00588 DAE.
| Decision Date | 28 September 1990 |
| Docket Number | Civ. No. 90-00588 DAE. |
| Citation | 748 F. Supp. 749 |
| Parties | GREENPEACE USA, a California non-profit corporation; Stichting Greenpeace Council, sometimes known as Greenpeace International, a not-for-profit stichting incorporated in the Netherlands; Institute For the Advancement of Hawaiian Affairs, a Hawaii non-profit corporation; World Council of Indigenous Peoples — Hawaii, a Hawaii non-profit corporation; and Walter Keli Iokekai Paulo, an individual, Plaintiffs, v. Michael P. STONE, Secretary of The Army; Richard Cheney, Secretary of The Department of Defense, Defendants. |
| Court | U.S. District Court — District of Hawaii |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Paul P. Spaulding, III, Arnold L. Lum, Sierra Club Legal Defense Fund, Inc., Honolulu, Hawaii, Denise E. Antolini, Northwest Office of the Sierra Club Legal Defense Fund, Seattle, Wash., Jon M. Van Dyke, Honolulu, Hawaii, for plaintiffs.
Daniel A. Bent, U.S. Atty., Theodore G. Meeker, Asst. U.S. Atty., Honolulu, Hawaii, Charles W. Findlay, II, Carol Annette Petsonk, Michael J. Malmquist, David Jones, U.S. Dept. of Justice, Environmental & Natural Resources Div., Washington, D.C., for defendants.
AMENDED ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs' motion for preliminary injunction came on for hearing before this court on August 20, 1990. The court, having carefully reviewed the pleadings in this matter, having heard the oral arguments of counsel and being fully advised as to the premises herein, DENIES plaintiffs' motion.
This action arises out of the United States Army's transportation and proposed destruction of approximately 100,000 rounds of nerve gas1 which have been stored in the Federal Republic of Germany ("FRG") since 1968. These munitions, sometimes referred to as the European stockpile, comprise less than 6% of the United States' unitary chemical munitions retaliatory stockpile.
In 1986, President Reagan entered into an agreement with Chancellor Kohl to remove these obsolete munitions from the FRG by December 1992. Congress has mandated that the entire United States stockpile of unitary chemical weapons be destroyed by April 30, 1997.2 Department of Defense Authorization Act of 1986, Pub.L. No. 99-145, § 1412(a), 99 Stat. 583, 747, Pub.L. No. 100-456, § 118(a), 102 Stat. 1918, 1934 (1988).
In March, 1989, at the request of President Bush, Secretary of State Baker agreed with Chancellor Kohl to accelerate the date for removal of the stockpile from 1992 to the end of 1990. See Declaration of James F. Dobbins, Jr.3
Accordingly, defendants, the United States Army and the Department of Defense, have undertaken a joint plan with the West German Army to remove these obsolete chemical weapons from their storage site in Clausen, Germany and transport them to Johnston Atoll for eventual disposal in the Johnston Atoll Chemical Agent Disposal System (hereinafter "JACADS").
Johnston Atoll is an unincorporated United States Territory located in the central Pacific Ocean approximately 800 miles southwest of Honolulu, Hawaii. Once designated a Wildlife Refuge in 1940, it has been used for various military purposes since World War II and is presently under the authority of the United States Department of Defense.
In 1971, the United States removed its stockpile of chemical munitions from Okinawa (hereinafter the "Okinawa stockpile") at the request of the Japanese government and shipped it to Johnston Atoll for storage and eventual destruction. Johnston Atoll was chosen as a storage site because Congress passed Pub.L. 91-672 which specifically prohibited the Army from transporting the Okinawa stockpile to the continental United States. The JACADS facility was initially designed for the purpose of destroying these chemical munitions.
The JACADS facility is part of the Army's overall plan to destroy the entire United States unitary chemical weapon stockpile by 1997.4 Congress has directed the Secretary of the Army to complete operational verification testing ("OVT") of the JACADS facility before beginning any "prove out" period at other proposed destruction facilities. Pub.L. No. 100-456. The Secretary also must notify Congress if that verification is not completed by December 31, 1990. Id. In addition, the Department of Defense Appropriations Act, 1990, Pub.L. No. 101-165, Title VI, 103 Stat. 1112, 1127, directs the Secretary of Defense to certify to Congress that the Johnston incineration facility has destroyed chemical munitions and that adequate storage facilities exist before moving the munitions stored in the FRG.
In accordance with this mandate, on July 22, 1990, the Army certified to Congress that it had destroyed live agent chemical munitions at the JACADS facility on June 30, 1990 and between July 14 and July 21, 1990 and that adequate storage exists to safely accommodate the European stockpile.
On July 26, 1990, the United States Army, together with the assistance of the West German Army, began moving the European stockpile from its storage site in Clausen. The munitions are first placed in secondary steel containers and then into special shipping containers called MILVANS. The MILVANS are then loaded onto trucks and then transported thirty miles via truck from Clausen to Miesau where they will be temporarily stored at a railhead. See Declaration of Major General Louis J. Delrosso. At the date of the hearing on plaintiffs' motion for preliminary injunction, this program for transportation was well underway.
Once all the munitions are at Miesau, they will be loaded onto railcars and transported to the port of Nordenham on the North Sea. The Director of the Chemical Retrograde Task Force, Major General Louis J. DelRosso ("DelRosso"), estimated that the stockpile would leave Miesau sometime after August 28, 1990. Once the munitions reach Nordenham by rail, the United States Army and West German Army will load the MILVANS into specially outfitted container ships to be transported by sea to Johnston Atoll. At the August 20, 1990 hearing on plaintiffs' motion, counsel for the defendants represented that the weapons would not leave the FRG until after September 10, 1990.
The Army has prepared three environmental impact statements ("EIS's") with respect to the storage and incineration facility at Johnston Atoll. In 1983, the Army published an EIS which addressed the construction and operation of the facilities designed to destroy the chemical weapons which were already stored on Johnston Atoll (the Okinawa stockpile). In 1988, the Army published a second EIS addressing the disposal of solid and liquid wastes which the JACADS project will produce. On July 23, 1990, the Army published a second supplemental EIS (hereinafter "SSEIS") which specifically addresses disposal of the European stockpile at Johnston Atoll. The SSEIS addresses the impact of (1) the transportation of the chemical munitions from the edge of the territorial waters surrounding Johnston Atoll to a pier on the Atoll; (2) unloading the munitions at the JACADS facility; (3) storage of the munitions at the facility; and (4) the destruction of the munitions.
Pursuant to Executive Order 12114, the Army prepared a Global Commons Environmental Assessment (hereinafter "GCEA") which focuses on the shipment of the munitions from the North Sea port of Nordenham to the territorial waters extending 12 nautical miles from Johnston Atoll.5 The Army has not yet determined the specific route between Germany and Johnston Atoll, however, the GCEA examines the environmental impact of the four potential sea routes. The Army concluded in its GCEA in March, 1990 that "the expected normal operations would only cause the same environmental impacts as from the passage of any modern commercial ship." GCEA "Information Paper" (Public) at 4.
The instant action to halt the removal of the European stockpile follows a previous unsuccessful attempt by a group of West German citizens to enjoin movement of the munitions in the FRG. The transportation of the munitions through the FRG is being undertaken pursuant to an exceptional authorization issued by the Federal Minister of Transport pursuant to the German Regulation on Transportation of Hazardous Goods by Rail and the Regulation on Domestic and Cross-Frontier Road Transport of Hazardous Goods. On July 20, 1990, the Administrative Court of Cologne denied the German petitioners' request for a preliminary injunction and ruled that, in light of the extensive planned safety precautions, the proposed transport of chemical weapons through the FRG did not violate the German Basic Law. Translation of the Decision of the Administrative Court of Cologne, Eric Neumayer, et al. v. FRG, July 20, 1990. The German court examined the proposed safety measures and plan for transport and found that it complied with German law and the danger posed by the plan was tolerable and did not violate any German constitutional rights. Id. at 9-11.
On August 1, 1990, plaintiffs Greenpeace USA, Stichting Greenpeace Council, Institute for the Advancement of Hawaiian Affairs, World Council of Indigenous People and Walter Keli'iokekai Paulo filed a complaint for injunctive relief against Michael P. Stone, Secretary of the Army, and Richard Cheney, Secretary of the Department of Defense ("DOD"), to enjoin the movement of chemical munitions from the FRG to Johnston Atoll. Plaintiffs assert in their complaint that the U.S. Army and DOD have violated the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347 ("NEPA") by, among other things, failing to prepare a comprehensive EIS statement covering all aspects of the transportation and disposal of the European stockpile. On August 3, 1990, plaintiffs filed an application for temporary restraining order.
On August 9, 1990, this court denied plaintiffs' application for a temporary restraining order to enjoin the defendants from...
To continue reading
Request your trial
-
Backcountry Against Dumps v. Chu
...such as Natural Resources Defense Council, Inc. v. Nuclear Regulatory Comm'n , 647 F.2d 1345 (D.C. Cir. 1981), and Greenpeace USA v. Stone , 748 F.Supp. 749 (D. Haw. 1990), to show that NEPA is not to be applied extraterritorially. However, those cases are substantially dissimilar from the ......
-
Consejo De Desarrollo Economico De Mexica. v. U.S., No. 2:05-CV-0870-PMP (LRL)
...F.2d 1345, 1347-48 (D.C.Cir.1981); Basel Action Network v. Maritime Admin., 370 F.Supp.2d 57, 71-72 (D.D.C.2005); Greenpeace USA v. Stone, 748 F.Supp. 749, 758 (D.Haw.1990). If the environmental impacts fall exclusively within a foreign jurisdiction or in an area over which the United State......
-
Earth Island Institute v. Christopher, Slip Op. 95-103. Court No. 94-06-00321.
...Taylor Bay Protective Ass'n v. Administrator, U.S. Environmental Protection Agency, 884 F.2d 1073 (8th Cir.1989), Greenpeace USA v. Stone, 748 F.Supp. 749 (D.Haw.1990), and Natural Resources Defense Council v. Lujan, 768 F.Supp. 870 (D.D.C.1991), is the reason, for each of these decisions i......
-
Hirt v. Richardson, 1:99-CV-933.
...of citizens's claims that possible oil spill from Trans-Alaskan oil pipeline might cause damage to Canada); Greenpeace USA v. Stone, 748 F.Supp. 749 (D.Hawaii 1990) (NEPA did not apply to United States Army's transportation and destruction of nerve gas from Germany to Johnston Atoll, an uni......
-
CHAPTER 13 DEVELOPING AN ENVIRONMENTAL REGULATORY MODEL—PIECING TOGETHER THE GROWING DIVERSITY OF INTERNATIONAL ENVIRONMENTAL STANDARDS AND AGENDAS
...of environmental issues). Defenders of Wildlife, Friends of Animals v. Lujan, 911 F.2d 117 (8th Cir. 1990); Greenpeace USA v. Stan, 748 F. Supp. 749 (D. Haw. 1990), appeal dismissed at 924 F.2d 175 (9th Cir. 1991); Env. Defense Fund, Inc. v. Massey, 986 F.2d 528 (D.C. Cir. 1993); Public Cit......