Hodges v. Abraham
| Decision Date | 06 August 2002 |
| Docket Number | No. 02-1639.,02-1639. |
| Citation | 300 F.3d 432 |
| Parties | Jim HODGES, Governor of the State of South Carolina, in his official capacity, Plaintiff-Appellant, v. Spencer ABRAHAM, Secretary of the Department of Energy, in his official capacity; United States Department of Energy, Defendants-Appellees, and Media General Operations, Incorporated, d/b/a Morning News (Florence), WBTW, WSPA, WCBD and WJBF; Aiken Communications, Incorporated, d/b/a The Standard (Aiken); Osteen Publishing Company, Incorporated, d/b/a The Item (Sumter); East Coast Newspapers, Incorporated, d/b/a Island Packet, d/b/a The Herald (Rock Hill), d/b/a The Beaufort Gazette; The Evening Post Publishing Company, d/b/a The Post and Courier (Charleston); Columbia Newspapers, Incorporated, d/b/a The State (Columbia); The Sun Publishing Company, Incorporated, d/b/a Sun News; The New York Times Company, d/b/a The Herald-Journal (Spartanburg); Independent Publishing Company, Incorporated, d/b/a Anderson Independent-Mail; Landmark Community Newspapers of South Carolina, d/b/a The Lancaster News; Jefferson-Pilot Communications Company, d/b/a WCSC; Pacific and Southern Company, Incorporated, d/b/a WLTX; The South Carolina Press Association; South Carolina Broadcasters; Associated Press; Lee Enterprises, Incorporated, d/b/a The Times and Democrat, Parties in Interest, and David R. Black, individually and on behalf of a class of Citizens of the State of South Carolina; David G. Cannon, individually and on behalf of a class of citizens of the State of South Carolina; Hugh Carl Gooding, individually and on behalf of a class of citizens of the State of South Carolina; Edward Lemon, individually and on behalf of a class of citizens of the State of South Carolina, Movants. Environmentalists, Incorporated, Amicus Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: William LeRoy Want, Charleston, South Carolina, for Appellant. Jeffrey Bossert Clark, Deputy Assistant Attorney General, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., for Appellees. ON BRIEF: Stephen P. Bates, Office of the Governor, Columbia, South Carolina, for Appellant. Thomas L. Sansonetti, Assistant Attorney General, Gregory D. Page, Lisa E. Jones, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; J. Strom Thurmond, Jr., United States Attorney, Robert F. Daley, Jr., Assistant United States Attorney, Christie Newman Barrett, Assistant United
States Attorney, Columbia, South Carolina; Lee L. Otis, General, Marc Johnston, Office of General, Department Of Energy, Washington, D.C., for Appellees. Ruth Thomas, Pro Se, for Amicus Curiae.
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
Affirmed by published opinion. Judge KING wrote the opinion, in which Judge WIDENER and Judge NIEMEYER joined.
Jim Hodges, the Governor of South Carolina, has appealed the June 13, 2002, Order of the district court, which awarded summary judgment to the United States Department of Energy and its Secretary, Spencer Abraham (collectively, the "DOE"). Governor Hodges contends that the DOE has failed to comply with the National Environmental Policy Act ("NEPA") in connection with its transfer of surplus plutonium from Colorado to South Carolina. In response, the DOE maintains that Governor Hodges lacks standing to pursue this case and that, in any event, it has complied with the mandate of NEPA. As explained below, we conclude that, although the Governor possesses standing to maintain this action, NEPA has not been contravened. We therefore affirm.
In 1995, the DOE began to consider the issues of whether and how to close its Rocky Flats Environmental Technology Site near Denver, Colorado ("Rocky Flats"). In order to carry out such a closing, the DOE must transfer the plutonium at Rocky Flats to other DOE sites for storage and eventual disposition.1 As such, the DOE considered utilizing its Savannah River Site (the "SRS"), located near Aiken, South Carolina, for the storage and disposition of the Rocky Flats plutonium. It prepared various NEPA compliance documents and materials analyzing and explaining the potential use of SRS for these purposes. After nearly seven years of study, the DOE announced, in its April 19, 2002, Amended Record of Decision (the "April 19 ROD"), that six metric tons2 of surplus plutonium will be transferred from Rocky Flats to SRS for long-term storage.
On May 1, 2002, Governor Hodges initiated this lawsuit, seeking to enjoin the DOE from shipping the Rocky Flats plutonium into the Palmetto State. He maintained that the DOE violated NEPA in failing to properly consider the environmental consequences of its April 19 ROD, and that it had failed to comply with NEPA procedures prior to issuance of the ROD. On cross-motions for summary judgment, the district court rejected the positions of Governor Hodges in their entirety, and it declined to award injunctive relief against the DOE.3 Hodges v. Abraham, CA No. 1:02-1426-22, Memorandum Opinion and Order, (D.S.C. June 17, 2002) (the "Opinion").4 On appeal, the DOE contends, for the first time, that Governor Hodges lacks standing to pursue his claims in this case. Before analyzing the standing question (which implicates our jurisdiction in this proceeding) and the merits of Governor Hodges's appeal, we will review the pertinent facts and legal principles governing the NEPA issues presented.5
The events giving rise to this dispute began over fifty years ago, with the advent of nuclear technology and nuclear weapons. During the Cold War — from the late 1940s to the late 1980s — the United States and the Soviet Union engaged in a nuclear arms race, and they produced thousands of nuclear weapons powered by tons of plutonium. Following the demise of the Soviet Union and the end of the Cold War, our country and the post-Soviet government of Russia acted both bilaterally and unilaterally to reduce their nuclear weapons stockpiles. In January 1994, they issued a Joint Statement Between the United States and Russia on NonProliferation of Weapons of Mass Destruction and Means of their Delivery, which established the mutual goal of "safe, secure, long-term storage and disposition of surplus fissile materials." In order to demonstrate our nation's commitment to this goal, President Clinton, on March 1, 1995, unilaterally announced that a total of 38.2 metric tons of our plutonium was no longer necessary for defense purposes, and that it therefore constituted "surplus plutonium."6 In September 2000, the United States and Russia formally pledged in writing that each would dispose of thirty-four metric tons of surplus plutonium. Agreement Between the Government of the United States of America and the Government of the Russian Federation Concerning the Management and Disposition of Plutonium Designated as No Longer Required for Defense Purposes and Related Cooperation. Pursuant to this Agreement, each country committed to "seek to begin operation of facilities [to dispose of the surplus plutonium] ... not later than December 31, 2007."
In this country, the responsibility for monitoring, storing, and disposing of nuclear materials, including plutonium, necessarily rests with the federal Government, specifically the DOE. 42 U.S.C. §§ 7112(10), 7133(a)(8). Since the President's 1995 pledge, the DOE has studied and explored several options aimed at determining the most effective way to fulfill its responsibility to store and dispose of our nation's surplus plutonium. Throughout this effort, the DOE has been subject to the requirements of NEPA, a statute enacted in 1969 to ensure that environmental concerns play a role in government decisionmaking.
NEPA establishes "a national policy of protecting and promoting environmental quality." Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir.1996). Although NEPA does not place substantive requirements on federal agencies, it requires them to follow certain procedures prior to undertaking any "proposed action," "proposal," or "project" that may affect the environment. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). Once the proper NEPA procedures are completed, i.e., "the adverse environmental effects of the proposed action are adequately identified and evaluated," a federal agency is entitled to "decid[e] that other values outweigh the environmental costs." Id. As the Supreme Court has observed, "NEPA merely prohibits uninformed — rather than unwise — agency action." Id. at 351, 109 S.Ct. 1835. The purpose of NEPA is two-fold. First, it ensures that an "agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts." Id. at 349, 109 S.Ct. 1835. In other words, NEPA guarantees that an agency will take "a `hard look' at environmental consequences" before making a decision that may affect the environment. Id. at 350, 109 S.Ct. 1835 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976)). Second, compliance with NEPA procedures "ensures that relevant information about a proposed project will be made available to members of the public so that they may play a role in both the decisionmaking process and the implementation of the decision." Hughes River, 81 F.3d at 443.
Pursuant to Section 102 of NEPA, a federal agency must prepare an environmental impact statement ("EIS") for every "recommendation or report on proposals for ... major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). The Council on Environmental Quality ("CEQ"), a governmental body created by NEPA for the purpose of advising the President on environmental matters, has promulgated extensive regulations to aid federal...
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