Northwest Inland Waters Coalition v. U.S. Dept. of Energy, 86-4383
| Decision Date | 11 July 1988 |
| Docket Number | No. 86-4383,86-4383 |
| Citation | 852 F.2d 572 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not the case, res judicata, or collateral estoppel. NORTHWEST INLAND WATERS COALITION, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF ENERGY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before FLETCHER and FARRIS, Circuit Judges, and RUDI M. BREWSTER, ** District Judge.
The Northwest Inland Water Coalition (NIWC), an environmental organization, sued the U.S. Department of Energy for failing to prepare an Environmental Impact Statement (EIS) before implementing the "Fuel Movement Project", a plan to ship fuel from foreign nuclear reactors to the United States for reprocessing. The district court found DOE's decision not to prepare an EIS unreasonable, and enjoined it from implementing the Fuel Movement Project until an EIS was prepared.
Because we find DOE should first prepare an Environmental Assessment (EA) to determine the need for an EIS, we affirm in part, reverse in part, and remand.
The National Environmental Policy Act (NEPA) requires an EIS for all "major Federal actions significantly affecting the quality of the human environment". 42 U.S.C. Sec. 4332(2)(C). The threshold for preparation of an EIS is evidence that a project "may significantly degrade some human environmental factor." Foundation for N. Amer. Wild Sheep v. United States Dep't of Agric., 681 F.2d 1172, 1178 (9th Cir.1982) (emphasis in original). "A determination that significant effects on the human environment will in fact occur is not essential." Id. If a proposed federal action normally would not require an EIS, an agency generally must prepare an EA in order to decide whether an EIS must be prepared. 40 C.F.R. Secs. 1501.4(a), (b), (c); 1508.9. Agencies also identify categories of actions that do not have a significant effect on the human environment; for these "categorical exclusions" neither an EIS nor an EA is normally required. Id. Secs. 1501.4(a)(2), 1507.3(b)(2)(ii), 1508.4.
The federal action at the center of this NEPA controversy is DOE's Fuel Movement Project, a program for transporting 50,000 pounds of high-level nuclear waste from Taiwanese reactors to the United States for reprocessing. Specifically, it provides for shipping spent fuel from Taiwan by commercial cargo vessels that would make stops in Asian ports and the U.S. ports of Seattle/Tacoma and San Francisco/Oakland before unloading and transferring the spent fuel to trucks at the Port of Long Beach for shipment to South Carolina for reprocessing.
On March 12, 1986 NIWC filed suit to enjoin implementation of the Fuel Movement Project, alleging that DOE violated NEPA by failing to prepare an EIS or an EA before implementing the proposal. NIWC's concerns rested, in part, on DOE's decision to route the nuclear waste through three heavily populated port cities, without analyzing alternative routes, and on DOE's reliance on outdated environmental studies that did not consider risks particular to ocean transport and the proposed shipping route, instead of conducting its own analysis specific to the conditions under which the Fuel Movement Project would be implemented. 1
NIWC, supported by amicus briefs from the States of Washington and California, the Port of Oakland, the City of Long Beach, the American Civil Liberties Union, and the Seattle Times, moved for partial summary judgment on its claims under NEPA and the notice provision of the Atomic Energy Act. DOE moved for dismissal or summary judgment on all claims, contending that it need not prepare an EIS or EA because of a categorical exclusion applicable to "actions which are substantially the same as other actions for which the environmental effects have already been assessed in a NEPA document and determined by DOE to be clearly insignificant and where such assessment is currently valid." DOE NEPA regulations, 45 Fed.Reg. 20694, 20700 (March 28, 1980).
The district court, on cross motions for summary judgment, found for NIWC and enjoined DOE from implementing the Fuel Movement Project until the agency prepared a project-specific EIS. DOE now concedes that its reliance on the categorical exclusion was unreasonable, and has appealed the sole issue of whether the district court erred in ordering it to prepare an EIS, instead of remanding to the agency to perform an EA in order to determine for itself whether an EIS is required.
Our jurisdiction rests on 28 U.S.C. Sec. 1292(a)(1) (), through which not only the injunction, but also all substantive issues underlying the order, are open to review. Fentron Industries, Inc. v. National Shopmen Pension Fund, 674 F.2d 1300, 1304 (9th Cir.1982).
"[A]n agency's determination that a particular project does not require the preparation of an EIS is to be upheld unless unreasonable." Foundation for N. Amer. Wild Sheep v. United States Dep't of Agric., 681 F.2d at 1177. Because DOE concedes that its reliance on the categorical exclusion and outdated studies was unreasonable, we only decide whether the agency should be allowed to prepare an EA instead of an EIS. We thus need not review the district court's finding that the Fuel Movement Project was a "major federal action significantly affecting the environment."
In Jones v. Gordon, 792 F.2d 821, 828 (9th Cir.1986), we recognized the wisdom in allowing an agency to explain itself. We held that the National Marine Fisheries Service's decision to rely on a categorical exclusion was unreasonable...
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...an agency in deciding if an EIS is necessary, on the effects of importing Taiwan spent fuel. See Northwest Inland Waters Coalition v. United States Dep't of Energy, 852 F.2d 572 (9th Cir.1988). While the appeal was pending, the Department prepared an EA which concluded that an East Coast po......