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D.C. Circuit Court of Appeals rules National Environmental Policy Act (NEPA) applicable to proposed Trident submarine base at Bangor on October 13, 1976.
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On October 13, 1976, the federal circuit court of appeals for the District of Columbia, in its opinion in Concerned About Trident v. Rumsfeld, rules unambiguously that even military projects deemed crucial to the nation's security are not per se exempt from the requirements of the National Environmental Policy Act (NEPA). The case highlights the tension between two of Washington Senator Henry M. Jackson's abiding concerns -- the need to maintain a strong military to counter the Soviet Union and the consideration of environmental consequences mandated by the law of which the senator was the primary sponsor. In future years, as other projects with implications for national security are considered by the Senate, Jackson (1912-1983) will sometimes struggle to balance his perception of the nation's security needs, and the needs of its poorest citizens, with his commitment to environmental protection.
The Birth of NEPA
The initial legislative proposal that was to become the National Environmental Policy Act, known ever after as NEPA, was submitted to the U.S. Senate in February 1969 by Washington Senator Henry M. Jackson, while Representative John Dingell of Michigan (b. 1926) introduced a largely similar measure to the House of Representatives. America already had the Clean Air Act, the Water Pollution Control Act of 1948, and other piecemeal statutes directed at specific environmental problems too obvious to ignore, but nowhere was there a concise statutory statement committing the federal government to an expansive view of its environmental responsibilities, much less a mechanism to require federal agencies to consider environmental factors in every significant decision. And, at first, neither the Jackson proposal nor that of Dingell did much to cure these omissions. They authorized ecological research by the Secretary of the Interior and established a Council on Environmental Quality, but contained no real statement of broad policy and few specific requirements for governmental action.
But as the proposals worked their way through the complex process of lawmaking, a funny thing happened. Rather than being weakened by special-interest amendments, as so often happens with ambitious legislation, the requirements of NEPA only became stronger. In May 1969 Senator Jackson himself offered the most significant amendments, including an explicit and concise statement of the nation's dedication to environmental protection, a series of mechanisms to breathe life into that commitment, and a statement that "each person has a fundamental and inalienable right to a healthful environment." Of these, only the last did not make it into the final legislation. It apparently was thought by many lawmakers that creating a personal "fundamental and inalienable right to a healthful environment" could have unforeseeable legal consequences. The final language was watered down to say only that "each person should enjoy a healthful environment and ... each person has a responsibility to contribute to the preservation and enhancement of the environment" (42 USC 4331[c]).
Jackson did not support this change. In a speech on the Senate floor on December 20, 1969, he said with his typical candor:
"I opposed this change ... . [E]very person does have a fundamental and inalienable right to a healthful environment. If this is not the law of the land ... then it is my view that some fundamental changes are in order" (115 Congressional Record 40416).
Jackson then vowed to introduce an amendment to the new law as soon as the President signed it that would restore the "fundamental right" language. If he did, it was never adopted, and the rather insipid language stating that each person "should enjoy a healthful environment" was still in place more than 40 years after NEPA's passage (2011).
NEPA was signed into law by President Richard M. Nixon (1913-1994) on January 1, 1970. Even without Jackson's preferred language, the statute, which in its entirety was barely 3,000 words long, was to have a profound and permanent effect on the conduct of the federal government. By the end of 1970, President Nixon had reorganized portions of the bureaucracy to create two new research and regulatory bodies, the Environmental Protection Agency and the National Oceanic and Atmospheric Administration. This brought under two large umbrellas multiple agencies that in the past had often worked without coordination and occasionally at cross-purposes. The passage of NEPA also encouraged many states to enact their own environmental legislation, one of the first and most comprehensive of which was Washington's State Environmental Policy Act (SEPA), passed in 1971.
NEPA and National Security
The first section of Title I of NEPA recites broad goals and statements of purpose. It is the second section of that title, often called the "action-forcing provision," that sets out specific mandatory steps, including its core mechanism: the requirement that an environmental impact statement (EIS) be prepared for every federal action "significantly affecting the quality of the human environment" (42 USC 4332 [C]).
NEPA created no agency or office to oversee the various departments of the federal government to ensure compliance with the law's requirements; it was left up to the courts to fill this enforcement vacuum. The issue most often brought before federal judges was the adequacy of the environmental impact statement that the law required, i.e., whether the responsible agency had in fact fully complied with the law by fairly weighing and considering the impacts of and alternatives to a proposed federal action.
Tracing the evolution of the body of decisional law interpreting NEPA's provisions is beyond the scope of this essay; suffice it to say that the courts, starting with the 1971 opinion in Calvert Cliffs Coordinating Committee v. Atomic Energy Commission, 449 F.2nd 1109 (D.C. Circuit), tended to interpret the law broadly and to require federal agencies to fulfill its mandates. None of these early cases directly involved national security issues, and most were decided in the federal district courts or the various courts of appeal. It was not until 1976 that the U.S. Supreme Court agreed to hear its first NEPA case, which was ultimately decided on grounds unrelated to the environmental law.
Unlike many other federal laws and regulations, NEPA did not include an explicit exemption from its requirements for projects that were directly related to the nation's security. But federal courts had traditionally granted the military wide leeway in such matters, and there was great uncertainty over whether NEPA would temper this deference. It is perhaps ironic that one of the first cases to address the issue arose from another legislative proposal that had strong backing from NEPA's primary author, Senator Jackson -- the Trident submarine missile system.
Jackson and Trident
In 1972, the Senate ratified the first Strategic Arms Limitation Talks (SALT) treaty with the Soviet Union by a lopsided 88-2 vote, but not before Jackson and other skeptics had wrung several concessions from the Nixon administration on future arms-control negotiations and weapons development. Jackson, deeply suspicious of the Nixon/Kissinger policy of détente with the Soviet Union and an advocate of negotiating from a position of strength, was to become a strong supporter of the Trident ballistic missile submarine program to replace the aging Polaris and Poseidon systems then in use.
The navy announced in February 1973 that it had selected Bangor on Washington's Kitsap Peninsula as the sole support facility for the proposed Trident system. Jackson did not initially welcome this siting decision; he was concerned that it would "enrage his more liberal constituents" (Kaufman, 242). But the military arguments in favor of Bangor were persuasive, and Jackson came around. He led the fight to generously fund Trident in September 1973, a battle that was won in the Senate by only two votes, 49-47. In his speech in support of program, Jackson told the Senate of the important part Trident would play in both national defense and ongoing arms-limitation negotiations:
"If we choose the prudent course -- to proceed without delay with the TRIDENT program -- we can at least be certain that we will have done what we can do to support the effort of our negotiators to obtain an equitable SALT agreement if we can -- and to protect our national security if we cannot" (www.usshmj.org).
Despite Jackson's support for the new weapons system, many of his allies on the left viewed the program as an unnecessary provocation and/or a major threat to the environment of the Kitsap Peninsula. But Trident enjoyed substantial civilian support too; Kitsap County had a long symbiosis with the military going back to the founding of the Bremerton Naval Station in the 1890s. Many county residents welcomed the economic boost and population growth that a new military facility would bring.
Trident and NEPA
Following the dictates of NEPA, the navy prepared an Environmental Impact Statement for the proposed naval base. In January 1975, a group called "Concerned About Trident" filed a legal action against then-Secretary of Defense Donald Rumsfeld (serving, at that time, President Nixon) in the federal district court in Washington, D.C., challenging the adequacy of the EIS. District Court Judge George Hart refused to issue an injunction halting Trident construction, and after a full trial he ruled, in August 1975, that national security concerns took precedence over environmental considerations, at least in this case. The matter then moved on to the federal court of appeals for the D.C. circuit.
Interestingly, in view of the fact that it had already prepared a five-volume EIS for the Trident project, one of the navy's arguments in both the district and appellate courts was that its actions in developing a new weapons system "were completely free from the strictures of NEPA or court review," and that "NEPA cannot possibly apply" to strategic military decisions made by the Department of Defense" (Concerned About Trident v. Rumsfeld, 555 F.2d 817, 823 [D.C. Cir. 1976]). This argument clearly had held some attraction for Judge Hart in the district court; it held none for the appellate panel:
"We view this as a flagrant attempt to exempt from the mandates of NEPA all such military actions under the overused rubric of 'national defense'. This effort to carve out a defense exemption from NEPA flies in the face of the clear language of the statute, Department of Defense and Navy regulations, Council on Environmental Quality ("CEQ") Guidelines, and case law.
Section 102 of NEPA clearly instructs all federal agencies to comply with its requirements. 42 U.S.C. § 4332 (1970). The only time that a federal agency can avoid this inclusion is when a clear and unavoidable conflict in statutory authority exists ... .
NEPA, first of all, makes environmental protection a part of the mandate of every federal agency and department ... .
The Navy, just like any federal agency, must carry out its NEPA mandate "to the fullest extent possible" and this mandate includes weighing the environmental costs of the Trident Program even though the project has serious national security implications" (Concerned About Trident v. Rumsfeld, at 823).
But the court went on to praise the Navy's efforts to comply with NEPA, despite the latter's insistence that it was under no obligation to do so:
"The pattern of decisionmaking followed by the Navy in this instance manifestly shows the department's good faith effort to incorporate environmental considerations into each step of the Trident site planning. The environmental costs were properly assessed and weighed against the economic, technical and strategical benefits that each alternative site capable of supporting Trident had to offer. In this way NEPA's purpose was carried out" (Concerned About Trident, at 825).
The three-judge panel ruled that the navy's Trident EIS was faulty only in two relatively minor respects -- it failed to analyze the environmental impacts that could occur in a reasonable period after the projected completion date in 1981, and it needed further discussion of the alternative systems and their environmental consequences which the navy considered before choosing the Bangor site. These requirements took little additional effort, and the navy produced an amended EIS early the following year. Although this too was considered inadequate by Trident's opponents, their efforts soon faltered and the project went ahead as scheduled. Peace activists replaced environmental activists in the fight, but they had nothing comparable to NEPA that would allow them to successfully invoke the assistance of the courts.
Jackson, NEPA, and the Military
Senator Jackson's position during the Trident controversy seemed to be that the courts, guided by the clear language of NEPA, were well equipped to resolve the issues raised by the lawsuit. He could not have been surprised by the outcome. In presenting his landmark environmental law to the full Senate for a vote, Jackson was clear:
"Taken together, the provisions of Section 102 directs any federal agency which takes action that it must take into account environmental management and environmental quality considerations" (Congressional Record).
Jackson's authorship, sponsorship, and support of NEPA led many to believe that environmental protection ranked at the very top of his list of priorities. This was not the case. He remained a stubborn advocate for a strong national defense, and was considered by some to be the consummate cold warrior. His steadfast support of the military was honored in 1984 with the commissioning of the USS Henry M. Jackson (SSBN-730), an Ohio-class ballistic missile submarine and the fifth in the Trident line to be based at Bangor. He on rare occasions approved and even sponsored congressional measures exempting portions of specific governmental actions from NEPA review, but at other times he refused to join his Senate colleagues in doing so. In 1983, for example, he introduced a measure giving portions of the MX missile program an exemption from NEPA's requirements; in 1973 he had unsuccessfully opposed a similar exemption for the Trans-Alaskan Oil Pipeline.
But as his public declarations made clear, Jackson came to believe that many environmentalists had used NEPA selfishly to block badly needed projects that would, among other benefits, provide jobs for those less fortunately situated. He spoke plainly and critically of "affluent middle-class Americans" who demand "that factories be shut down, that automobiles be banned, than no-growth policies be adopted" (Kaufman, 205). As he reminded listeners at an Earth Day teach-in at the University of Washington in the same year NEPA became law:
"The fundamental human rights of these people (the poor) cannot be traded-off to satisfy environmental goals. Achieving human goals will require balance and difficult decisions" (Kaufman, 205).
Senator Jackson's history with the law he worked so hard to promulgate was not always smooth or without complications. But despite any concerns he may have had about the way NEPA was being used, and despite his occasional willingness to support projects affecting the national security at the expense of technical compliance with the requirements of that law, the National Environmental Policy Act remains one of the two or three most significant pieces of federal environmental legislation in the nation's history. It has been the law of the land for over forty years (2011), and that is largely because Henry M. Jackson made it so.
Robert G. Kaufman, Henry M. Jackson: A Life in Politics (Seattle: University of Washington Press, 2000); Concerned About Trident v. Rumsfeld, 555 F.2d 817 [D.C. Circ.] (1976); James I. Mangi, "Window on the Pentagon: EIA and Defense Decision Making, Environmental Impact Assessment Review, Vo. 5 (1985), p. 7; "Earth Day: Seattleites Discuss Plight of Planet," The Seattle Times, April 22, 1970, p. C-1; Margaret Ann Larrea, "The Emergency Alternative Arrangement Exception to the National Environmental Policy Act: What Constitutes an Emergency?" (Master of Law thesis, George Washington University Law School, August 31, 2009); "Anti-Trident Group Cites Environmental Hurdle," The Seattle Times, October 17, 1973, p. B-2; Robert Orsi, "Emergency Exceptions from NEPA: Who Should Decide?" Boston College Environmental Affairs Law Review, Vol. 14 (Spring 1987), p. 481; Lucinda Low Swartz, Esq., "NEPA Legislative History," Linda Low Swartz website accessed March 14, 2011 (http://www.lucindalowswartz.com/); "USS Henry M. Jackson (SSBN 730)," U.S. Navy website accessed March 15, 2011 (http://www.navysite.de/ssbn/ssbn730.htm); Cary Ichter, "'Beyond Judicial Scrutiny': Military Compliance with NEPA," Georgia Law Review, Vol. 18 (1983-1984); Comments of Senator Henry M. Jackson during debate on NEPA (December 20, 1969), 115 Congressional Record 40416; "Environment: Trouble over Trident," Time magazine, January 27, 1975, available at (http://www.time.com/time/magazine/article 0,9171,912769,00.html); Brain Casserly, "Confronting the U.S. Navy at Bangor, 1973-1982," University of Washington website accessed March 13, 2011 (http://depts.washington.edu/antiwar/images/nukes/Casserly_clean.pdf); Friends of the Earth, Inc. v. Weinberger, 562 F. Supp. 265 [D.C. Circ.] (1983); "USS Henry M. Jackson SSBN 730," USSMHJ.org website accessed,March 16, 2011 (http://www.usshmj.org/subresearch/8/8.html).
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