State of Wis. v. Weinberger, No. 84-1569

CourtU.S. Court of Appeals — Seventh Circuit
Writing for the CourtBefore CUMMINGS, Chief Judge, and WOOD and CUDAHY; HARLINGTON WOOD, Jr.; CUDAHY; Crabb
Citation745 F.2d 412
Parties, 14 Envtl. L. Rep. 20,744 STATE OF WISCONSIN, Plaintiff-Appellee, and County of Marquette, Michigan, Intervening Plaintiff-Appellee, v. Caspar W. WEINBERGER, Individually and as Secretary of the Department of Defense, et al., Defendants-Appellants.
Decision Date20 August 1984
Docket NumberNo. 84-1569

Page 412

745 F.2d 412
21 ERC 1439, 14 Envtl. L. Rep. 20,744
STATE OF WISCONSIN, Plaintiff-Appellee,
and
County of Marquette, Michigan, Intervening Plaintiff-Appellee,
v.
Caspar W. WEINBERGER, Individually and as Secretary of the
Department of Defense, et al., Defendants-Appellants.
No. 84-1569.
United States Court of Appeals,
Seventh Circuit.
Argued June 11, 1984.
Decided Aug. 20, 1984. *
As Corrected Aug. 21, 1984.

Page 414

Anne S. Almy, U.S. Dept. of Justice, Lands Div., Washington, D.C., for defendants-appellants.

Shari Eggleson, Asst. Atty. Gen., Bronson C. LaFollette, Atty. Gen., Madison, Wis., Patricia L. Micklow, Marquette County Pros. Atty., Marquette, Mich., for intervening plaintiff-appellee.

Before CUMMINGS, Chief Judge, and WOOD and CUDAHY, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Plaintiff-appellee State of Wisconsin and intervening plaintiff-appellee County of Marquette, Michigan, sued federal appellants seeking the preparation of a supplemental environmental impact statement (SEIS) in connection with Project ELF, an extremely low frequency submarine communications system developed by the Navy, which the Navy undertook to reactivate and expand in 1981. 1 Plaintiffs contended that the Navy's original 1977 environmental impact statement prepared at the time the project first originated should have been supplemented because of new information regarding the biological effects of extremely low frequency electromagnetic radiation. After a trial on the merits, the district court agreed with this contention and enjoined the Navy from proceeding with any additional work on Project ELF in Wisconsin or Michigan and from installing receivers in submarines until a supplementary environmental impact statement had been prepared. 2 This expedited appeal followed.

I.

On July 1, 1968, the Navy announced plans to construct an extremely low frequency (ELF) submarine communications test facility within the Chequamegon National Forest near the town of Clam Lake in northern Wisconsin. This test facility, consisting of two 14-mile strings of overhead antennae mounted on utility poles and a transmitter situated in a fenced compound, became fully operational in 1969. Between 1969 and 1978, while the Navy operated and tested the capability of this facility, two comprehensive ELF projects were formulated. The first, called Project Sanguine, was to include a 6,300 square mile grid of buried antenna cable and was

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to be operational by 1976. Project Sanguine, however, never went into full-scale development. The second system, Project Seafarer, which was proposed in 1977, initially was to consist of two test facilities: the one near Clam Lake, and the other, with a transmitter station and 130 miles of buried antenna cables, to be situated in the upper peninsula of Michigan. In its final, fully-developed form, the system was to have five surface transmitting stations and 2,400 miles of buried antenna cables extending over a 4,000 square-mile area.

In 1978, after initially supporting the allocation of $20.1 million for Project Seafarer research and development, President Carter decided to postpone Project Seafarer indefinitely. His decision not to proceed with the project was based on "reservations regarding this large 2400-mile antenna network, primarily because of public opposition and the inevitable inconvenience to private landowners as well as its excessive costs." President Carter, however, did instruct the Secretary of Defense to study the possibility of putting together a smaller, less intrusive, and less costly ELF system. Following the President's lead, Congress undertook no additional funding of Project ELF, as it came to be known, and the project entered a dormant phase.

In 1981, however, Congress, in its Department of Defense Authorization Act, 94 Stat. 1077, 1081, ordered the Navy to resume research and development for an ELF communications system and directed the President to "submit to the Congress a plan for deployment" of such a system in 1981. In April, 1981, President Reagan advised the Secretary of Defense of his intention to review and decide whether to reactivate Project ELF. The Secretary submitted an ELF proposal to the President on August 13, 1981. On October 8, 1981, President Reagan approved the recommended proposal and advised Congress of his intent to proceed. He ordered that the ELF project should

include upgrading of the existing ELF in Wisconsin, a new transmitter facility of comparable size with 56 miles of antenna[e] in Michigan, and ELF receivers for the submarines. In order to make critical improvements in connectivity to the submarine forces, the Navy should support this decision in a way that will provide an initial operating capability in fiscal year 1985.

As a result of this order, the ELF facility in Wisconsin was reactivated in December, 1981, and resumed broadcasting to submarines, which continues to date.

For each of the pre-1981 ELF proposals, the Navy provided documentation of the environmental effects of each project by preparing an environmental impact statement (EIS) in accordance with the National Environmental Policy Act of 1969. Of specific concern to the public were the possible effects of continuously exposing humans, animals, and plants to extremely low frequency electromagnetic radiation. This concern was acknowledged and addressed by the 1972 EIS and 1975 supplemental EIS prepared in connection with Project Sanguine, and the 1977 EIS prepared in connection with Project Seafarer. The 1977 EIS included a 1977 National Academy of Sciences report commissioned by the Navy studying the biological and human health effects of extremely low frequency electromagnetic radiation. This report summarized the state of knowledge concerning these effects and concluded: "On the basis of the evidence available, the Navy believes no adverse effects on human health or performance will be associated with long-term Seafarer exposure."

When the decision to reactivate Project ELF in 1981 was made, no additional environmental impact assessment was made. In June, 1983, however, the Navy issued, but did not circulate to the public or to interested federal agencies, an environmental impact assessment of the upgrading of the Wisconsin facility. In that assessment, the Navy observed that the electromagnetic field intensities produced by the ELF system would not increase by upgrading the Wisconsin facility to full operation. This assessment did not reevaluate the conclusions of the 1977 EIS and National Academy

Page 416

of Sciences report that ELF systems would produce no adverse biological effects.

In contrast to the prior proposals, Project Sanguine and Project Seafarer, the present ELF proposal is much more modest. The modernization of the Wisconsin facility will not substantially alter the nature of its operations as it has existed since its original implementation in 1969. The proposed Michigan facility will include 56 miles of antennae on utility poles in an F shape and will operate similarly to the Wisconsin facility. The facilities in Wisconsin and Michigan can transmit independently, but if operated synchronously can reach areas not otherwise attainable independently.

II.

The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. Secs. 4321-47, articulates "a national policy [to] encourage productive and enjoyable harmony between man and his environment." 42 U.S.C. Sec. 4321. Although NEPA establishes "significant substantive goals for the Nation," Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978), the Act does not attempt to dictate the result of any particular decision; instead, the weighing of the substantive environmental goals is to be undertaken by the executive agencies involved, and the judicially reviewable duties imposed by the Act are "essentially procedural." Id. The procedural approach to the implementation of substantive NEPA policy is accomplished by the Act's requirement that agencies prepare a detailed statement concerning environmental consequences--known as an environmental impact statement (EIS)--in connection with "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 3 42 U.S.C. Sec. 4332(2)(C). The EIS thus ensures adequate consideration of environmental consequences by alerting decision-makers to the nature of those consequences with regard to a particular action. See Andrus v. Sierra Club, 442 U.S. 347, 350, 99 S.Ct. 2335, 2337, 60 L.Ed.2d 943 (1979). In addition, the EIS acts to fully inform the public about agency decisions affecting the environment and facilitates public input into the decision-making process. See Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139, 143, 102 S.Ct. 197, 201, 70 L.Ed.2d 298 (1981). Finally, the EIS serves as a record for substantive review of challenges for noncompliance with NEPA. See Appalachian Power Co. v. EPA, 477 F.2d 495, 507 (4th Cir.1973).

The preparation of an EIS as a prerequisite to the implementation of a major government project has become commonplace. Although the Supreme Court has emphasized that an initial EIS should be finished at a fixed time, Vermont Yankee, 435 U.S. at 534, 555, 98 S.Ct. at 1207, 1217, on occasion, an original EIS may become inadequate when during the life cycle of a project its scope changes in any substantial way or if new circumstances arise or new information becomes available about previously unsuspected environmental impacts. Recognizing that these situations may sometimes occur, the Council on Environmental Quality (CEQ) 4 has set standards determining when an agency must supplement

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its EIS. Under CEQ regulations, agencies are required to supplement an original EIS if: "(i) [t]he agency makes substantial changes...

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