Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 1 of 45 1 2 3 4 5 6 7 8 The Honorable Ronald B. Leighton 9 10 11 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON TACOMA DIVISION 12 13 14 15 16 17 18 19 20 ) GROUND ZERO CENTER FOR NONVIOLENT ) Case No. 3:12-cv-05537-RBL ACTION, WASHINGTON PHYSICIANS FOR SOCIAL RESPONSIBILITY, and GLEN S. MILNER, ) ) Hon. Ronald B. Leighton ) Plaintiffs, ) DEFENDANTS’ MOTION FOR ) SUMMARY JUDGMENT AND v. ) OPPOSITION TO PLAINTIFFS’ UNITED STATES DEPARTMENT OF THE NAVY, ) MOTION SUMMARY ) JUDGMENT et al., ) ) NOTE ON MOTION CALENDAR: Defendants. ) November 8, 2013 21 22 23 24 25 26 27 28 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 2 of 45 1 TABLE OF CONTENTS 2 INTRODUCTION ...........................................................................................................................1 3 BACKGROUND .............................................................................................................................2 4 5 I. FACTUAL BACKGROUND ..............................................................................................2 6 A. The Navy’s TRIDENT Program at Bangor .............................................................2 7 B. Prior Litigation Regarding the Navy’s TRIDENT Program at Bangor ...................2 C. The Proposed Explosives Handling Wharf ..............................................................3 D. The NEPA Process for the Proposed Explosives Handling Wharf..........................4 8 9 10 11 II. LEGAL BACKGROUND ...................................................................................................4 12 A. National Environmental Policy Act .........................................................................4 13 B. Administrative Procedure Act..................................................................................5 C. Summary Judgment Standard ..................................................................................6 14 15 16 17 ARGUMENT ...................................................................................................................................6 I. THE NAVY’S ANALYSIS OF THE POTENTIAL RISKS TO PUBLIC HEALTH AND SAFETY COMPLIED WITH THE NEPA ...............................................6 18 19 20 A. NEPA Does Not Require the Disclosure of Classified Information or Controlled Unclassified Information Relating to National Security........................7 B. The Navy Was Not Required to Disclose Its Analysis of the Potential Risks of Explosion in the FEIS Because to Do So Would Require the Disclosure of Classified Information and Controlled Unclassified Information .........................11 C. Plaintiffs’ Arguments Regarding Compliance With Explosive Safety Standards and the Degree of Risk Are Not Justiciable Because a Complete Response Would Require the Navy to Reveal Protected Information ...................12 D. There Are No Misstatements in the FEIS Regarding Explosive Risk ...................14 21 22 23 24 25 26 1. The Navy’s Decision Was in Accordance with DDESB Requirements .............................................................................................14 2. There is No Increased Risk to the Public Due to the Construction and Operation of the Second Wharf...........................................................17 27 28 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL i U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 3 of 45 1 E. 2 3 II. The Navy Was Not Required to Analyze the Potential Impacts of an Explosion Because the Risk of an Explosion is Remote and Speculative .............19 4 THE NAVY COMPLIED WITH NEPA’S PUBLIC DISCLOSURE REQUIREMENT ...............................................................................................................21 5 A. The Non-Disclosure of Information In an EIS Only Violates NEPA If That Information Would Have Been Significant to the Public’s Review ......................21 B. The Information in Appendices A and B Was Either Previously Disclosed Or Was Not Material to the Public’s Review of the FEIS .....................................22 C. The Navy Was Not Required to Append the Business Case Analysis to the FEIS .............................................................................................................24 D. The Navy Was Not Required to Disclose the Facility Design Criteria During the NEPA Process ......................................................................................25 6 7 8 9 10 11 12 III. THE NAVY DID NOT PREDETERMINE THE OUTCOME OF THE NEPA PROCESS FOR THE EXPLOSIVES HANDLING WHARF ..........................................26 IV. 15 THE NAVY APPROPRIATELY STATED THE NEED FOR THE PROJECT AND ANALYZED A REASONABLE RANGE OF ALTERNATIVES...................................28 16 A. The FEIS Reasonably Explains the Need for the EHW-2 .....................................28 B. The FEIS Evaluates a Reasonable Range of Alternatives .....................................30 13 14 17 18 19 20 V. THE NAVY COMPLIED WITH NEPA’S REQUIREMENT TO ANALYZE MITIGATION....................................................................................................................33 CONCLUSION ..............................................................................................................................35 21 22 23 24 25 26 27 28 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL ii U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 4 of 45 1 TABLE OF AUTHORITIES 2 CASES 3 4 Ass'n of Pub. Agency Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158 (9th Cir. 1997) .............................................................................................................................5 5 Barnes v. U.S. Dep't of Transp., 655 F.3d 1124 (9th Cir. 2011) ...................................................30 6 California v. Block, 690 F.2d 753 (9th Cir. 1982) ...........................................................................4 7 8 Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir. 1991) ..................................29 9 Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402 (1971) .......................................................5 10 City of Angoon v. Hodel, 803 F.2d 1016 (9th Cir. 1986)...............................................................31 11 City of Carmel-by-the-Sea v. U.S. Dep't of Transp., 123 F.3d 1142 (9th Cir. 1997) ..............28, 31 12 Columbia Basin Land Prot. Ass'n v. Schlesinger, 643 F.2d 585 (9th Cir. 1981) .................. passim 13 14 15 16 17 Concerned About Trident v. Rumsfeld, 555 F.2d 817 (D.C. Cir. 1977) ..........................................3 Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 746 F. Supp. 2d 1055 (N.D. Cal. 2009) ...........................................................................................................................34 Ctr. for Envtl. Law and Policy v. U.S. Bureau of Reclamation, 655 F.3d 1000 (9th Cir. 2011) ..................................................................................................................................28 18 19 Dep't of Navy v. Egan, 484 U.S. 518 (1988)..................................................................................33 20 Feldman v. Bomar, 518 F.3d 637 (9th Cir. 2008)..........................................................................19 21 Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692 (10th Cir. 2010) ..........................27 22 Friends of Southeast's Future v. Morrison, 153 F.3d 1059 (9th Cir. 1998) ..................................28 23 Friends of the Earth v. Coleman, 513 F.2d 295 (9th Cir. 1975) ....................................................31 24 25 26 Ground Zero for Non-Violent Action v. U.S. Dep't of the Navy, 383 F.3d 1082 (9th Cir. 2004)............................................................................................................ passim Hudson River Sloop Clearwater, Inc. v. Dep't of Navy, 891 F.2d 414 (2d Cir. 1989) ........9, 10, 13 27 28 Klamath-Siskiyou Wildland Ctr. v. U.S. Forest Serv., 373 F. Supp. 2d 1069 (E.D. Cal. 2004) ..................................................................................................................................33 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL iii U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 5 of 45 1 Laguna Greenbelt, Inc. v. U.S. Dep't of Transp., 42 F.3d 517 (9th Cir. 1994) .............................21 2 Laine v. Weinberger, 541 F. Supp. 599 (C.D. Cal. 1982)..............................................................13 3 Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) ...............................................................19 4 5 6 Lathan v. Brinegar, 506 F.2d 677 (9th Cir. 1974) .........................................................................28 League of Wilderness Defenders-Blue Mountain Diversity Project v. U.S. Forest Serv., 689 F.3d 1060 (9th Cir. 2012) .....................................................................................28, 30 7 8 Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990) .........................................................................6 9 McFarlane v. Kempthorne, 545 F.3d 1106 (9th Cir. 2008) .............................................................5 10 Milner v. Navy, 131 S. Ct. 1259 (2011) ...........................................................................................7 11 12 Nat'l Parks & Conservation Ass'n v. Bureau of Land Mgmt., 606 F.3d 1058 (9th Cir. 2010)..............................................................................................................28, 30 13 Native Ecosystems Council v. Dombeck, 304 F.3d 886 (9th Cir. 2002) ..................................26, 27 14 Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233 (9th Cir. 2005) ....................30, 31 15 16 17 Natural Res. Def. Council, Inc. v. Gutierrez, No. C-07-04771, 2008 WL 360852 (N.D. Cal. Feb. 6, 2008).....................................................................................................29 Neighbors of Cuddy Mtn. v. U.S. Forest Serv., 137 F.3d 1372 (9th Cir. 1998).............................35 18 19 Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136 (9th Cir. 2007) ..................5 20 Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520 (9th Cir. 1997) ........................30 21 Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468 (9th Cir. 1994) ..................................6 22 ONRC Action v. U.S. Bureau of Land Mgmt., 150 F.3d 1132 (9th Cir. 1998) ................................5 23 Occidental Eng'g Co. v. INS, 753 F.2d 766 (9th Cir.1985) .............................................................6 24 25 Okanagon Highlands Alliance v. Williams, 236 F.3d 468 (9th Cir. 2000) ....................................35 26 Pacific Coast Fed. of Fishermen's Ass'ns v. Blank, 693 F.3d 1084 (9th Cir. 2012) ......................34 27 Presidio Golf Club v. Nat'l Park Serv., 155 F.3d 1153 (9th Cir. 1998).........................................31 28 River Runners for Wilderness v. Martin, 593 F.3d 1064 (9th Cir. 2010) ........................................6 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL iv U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 6 of 45 1 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) ..............................4, 5, 22, 34 2 S. Fork Band Council v. U.S. Dep't of Interior, 588 F.3d 718 (9th Cir. 2009) ..............................35 3 4 San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 635 F.3d 1109 (9th Cir. 2011) ...............................................................................................................10, 13, 14 5 Seattle Audubon Soc'y v. Moseley, 80 F.3d 1401 (9th Cir. 1996)..................................................31 6 Swanson v. U.S. Forest Serv., 87 F.3d 339 (9th Cir. 1996) .............................................................5 7 8 Tongass Conservation Soc'y. v. Cheney, 924 F.2d 1137 (D.C. Cir. 1991) ....................................32 9 Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir. 1974) ...............................................22, 25, 30 10 Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978) .......................................30 11 Warm Springs Dam Task Force v. Gribble, 621 F.2d 1017 (9th Cir. 1980) ...........................20, 22 12 Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, 454 U.S. 139 (1981) ......... passim 13 14 Westlands Water Dist. v. U.S. Dep't of the Interior, 376 F.3d 853 (9th Cir. 2004) .................28, 29 15 WildWest Inst. v. Bull, 547 F.3d 1162 (9th Cir. 2008) ...................................................................27 16 Winter v. Natural Res. Def. Counsel, Inc., 555 U.S. 7 (2008) ...........................................30, 32, 33 17 18 STATUTES 19 Freedom of Information Act, 5 U.S.C. § 552 ........................................................................7, 9, 24 20 Administrative, Procedure Act, 5 U.S.C. § 706 ...............................................................................5 21 22 10 U.S.C. § 128 ....................................................................................................................7, 10, 13 23 10 U.S.C. § 130e ..................................................................................................................7, 10, 13 24 10 U.S.C. § 172 ..............................................................................................................................15 25 22 U.S.C. § 2751 ..............................................................................................................................8 26 Clean Water Act, 33 U.S.C. § 1344 ...............................................................................................33 27 28 Atomic Energy Act, 42 U.S.C. § 2014 ............................................................................................9 42 U.S.C. § 2162 ..............................................................................................................................9 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL v U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 7 of 45 1 2 42 U.S.C. § 2167 ............................................................................................................................13 3 42 U.S.C. § 2168 ..............................................................................................................................9 4 National Environmental Policy Act, 42 U.S.C. § 4332 ...............................................................4, 8 5 6 REGULATIONS 7 40 C.F.R. Part 230..........................................................................................................................33 8 40 C.F.R. § 1501.3 ...........................................................................................................................4 9 40 C.F.R. § 1502.14 .......................................................................................................................24 10 11 40 C.F.R. § 1502.16 .......................................................................................................................34 12 40 C.F.R. § 1502.21 .......................................................................................................................25 13 40 C.F.R. § 1502.23 .......................................................................................................................25 14 40 C.F.R. § 1502.2 .........................................................................................................................26 15 16 40 C.F.R. § 1506.1 .........................................................................................................................26 17 40 C.F.R. § 1506.6 .........................................................................................................................26 18 40 C.F.R. § 1507.3 ...........................................................................................................................9 19 40 C.F.R. § 1508.20 .......................................................................................................................34 20 21 22 23 Notice of Availability of Environmental Impacts Statements, 77 Fed. Reg. 19,281 (Mar. 30, 2012) ....................................................................................................................4 Notice of Availability of Record of Decision for TRIDENT Support Facilities Explosives Handling Wharf at Naval Base Kitsap at Bangor, Kitsap County, WA, 77 Fed. Reg. 29,620 (May 18, 2012) ...................................................................................4 24 25 26 27 28 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL vi U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 8 of 45 TABLE OF ACRONYMS 1 2 3 CISI – critical infrastructure security information 4 CUI – controlled unclassified information 5 DDESB – U.S. Department of Defense Explosives Safety Board 6 DOD – U.S. Department of Defense 7 8 EHW – explosives handling wharf 9 ESQD – explosives safety quantity distance 10 HCCC – Hood Canal Coordinating Council 11 ILF – in lieu fee 12 NOSSA – Naval Ordnance Safety and Security Activity 13 14 PHTAP – Propellant Hazards Test and Analysis Program 15 SSBN – ballistic missile submarine 16 SSGN – guided missile submarine 17 STRATCOM – United States Strategic Command 18 19 SWFPAC – Strategic Weapons Facility Pacific 20 UCNI – unclassified controlled nuclear information 21 WDOE – Washington State Department of Ecology 22 WDNR – Washington Department of Natural Resources 23 24 25 26 27 28 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL vii U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 9 of 45 1 2 INTRODUCTION Defendants U.S. Department of the Navy et al. hereby move for summary judgment on 3 all claims and oppose Plaintiffs’ Motion for Summary Judgment (“Pl. Mot.”) (ECF No. 91). 4 Plaintiffs challenge the Navy’s decision to construct a new explosives handling wharf (“EHW- 5 2”) at the Naval Base Kitsap at Bangor (“Bangor”). The EHW-2 is necessary to support the 6 7 8 9 Navy’s TRIDENT program, which includes the fleet of OHIO Class Ballistic Missile submarines (referred to as “TRIDENT” submarines), TRIDENT missiles, and related facilities. TRIDENT submarines are capable of launching ballistic missiles and play a vital role in the nation’s defense. The existing explosives handling wharf (“EHW-1”) was built in the late 1970s and will 10 not be sufficient to meet the Navy’s requirements for the TRIDENT program over the coming 11 12 13 14 15 decades. Plaintiffs challenge the Navy’s decision to build the new EHW-2 under the National Environmental Policy Act (“NEPA”). The Navy has complied with NEPA. It conducted a thorough analysis of the potential environmental impacts of constructing and operating the EHW-2 and appropriately disclosed 16 information to the public in a manner consistent with NEPA and other statutory requirements. A 17 primary focus of Plaintiffs’ arguments is that the Navy should have disclosed additional 18 information about the risk of explosions occurring at Bangor and the potential consequences of 19 such explosions. The risk of such an explosion occurring at all is remote, and the Navy has 20 conducted its operations at Bangor safely for over three decades. There is no basis for Plaintiffs’ 21 claims that the Navy has violated safety standards or that construction of the new wharf will 22 increase the danger to the public. Much of the information relating to the Navy’s analysis of 23 explosive risk, however, is statutorily protected from disclosure due to its sensitive nature. It is 24 well-established that the Navy need not disclose sensitive information related to national security 25 during the NEPA process. Further, the adequacy of an agency’s NEPA analysis of such sensitive 26 27 28 information is beyond judicial review. See Weinberger v. Catholic Action of Hawaii/Peace Educ. Project, 454 U.S. 139, 146-47 (1981). Plaintiffs have failed to demonstrate that the Navy’s disclosure of information was improper or that the Navy violated NEPA in any way. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL -1- U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 10 of 45 1 2 BACKGROUND I. FACTUAL BACKGROUND 3 A. 4 As explained in the Navy’s Final Environmental Impact Statement (“FEIS”) for the The Navy’s TRIDENT Program at Bangor 5 proposed EHW-2, the Navy’s operations at Bangor support the Navy’s TRIDENT Fleet Ballistic 6 Missile program. EHW 61657.1 TRIDENT submarines are equipped with ballistic missiles and 7 8 9 have played a critical role in the Navy’s strategic deterrence mission since 1956. Id. Bangor is the home port for the Navy’s Pacific fleet of TRIDENT submarines and is the only installation on the west coast capable of supporting the Navy’s TRIDENT program. EHW 61657. Bangor 10 contains specialized infrastructure for maintaining, handling, and storing missiles, as well as 11 12 13 14 15 16 facilities to support all aspects of the TRIDENT program. Id. One of these facilities is an existing explosives handling wharf, which was constructed in the late 1970s. See id. Due to changing weapons systems, program requirements, and the fact that the number of TRIDENT submarines homeported at Bangor has increased from six to eight, the EHW-1 is no longer sufficient to support the Navy’s needs. EHW 61661-62. 17 B. Prior Litigation Regarding the Navy’s TRIDENT Program at Bangor 18 In 1989, the Navy prepared an environmental assessment for upgrading the facilities at 19 Bangor to accommodate the TRIDENT D5 (“TRIDENT II” or “D5”) weapons system. Id. The 20 TRIDENT II system is larger and more complex than TRIDENT I and thus requires more time 21 22 23 24 25 26 27 28 1 References to “EHW” refer to documents in the Navy’s Core Administrative Record filed on September 19, 2012 (ECF No. 25), a Supplement to the Navy’s Core Administrative Record filed on September 28, 2012 (ECF No. 33), the Navy’s Non-Core Administrative Record filed on October 19, 2012 (ECF No. 42), a Supplement to the Navy’s Non-Core Administrative Record filed on November 13, 2012 (ECF No. 52), a Supplement to the Navy’s Administrative Record Containing Replacements of the Documents Subject to the Court’s November 9, 2012 Order filed on June 3, 2013 (ECF No. 78), a Third Supplement to the Navy’s Non-Core Administrative Record filed on August 15, 2013 (ECF No. 86), and a Fourth Supplement to the Navy’s NonCore Administrative Record filed on August 29, 2013 (ECF No. 90). The documents in the last three supplements replace documents that were previously filed. In order to avoid confusion, when documents in those supplements are cited, the date of production will be included, e.g., EHW 42283 (6/3/13). DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL -2- U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 11 of 45 1 for handling and maintenance. EHW 61661-62. A decision to proceed with the upgrades was 2 delayed until 2000, when a scaled-back version of the upgrades was approved. See Ground Zero 3 for Non-Violent Action v. U.S. Dep’t of the Navy, 383 F.3d 1082, 1085 (9th Cir. 2004). 4 5 6 7 8 9 In 2001, Ground Zero Center for Non-Violent Action (“Ground Zero”), the lead plaintiff in this case, along with other groups, filed suit challenging the facilities upgrade program at Bangor (“Backfit Program”). See id. Relying on the Supreme Court’s decision in Catholic Action, 454 U.S. 139, the court dismissed all claims relating to the potential environmental impacts of nuclear weapons. See Ground Zero Ctr. v. U.S. Dep’t of the Navy, No. C 015339FDB (W.D. Wash. Jan. 17, 2002) (ECF No. 16) (Order Granting Defs’ Mot for Partial 10 Summ. J.), at 3-7, attached as Ex. 1. Summary judgment was granted in favor of the government 11 12 13 14 15 on the remaining claims, and the court of appeals affirmed the judgment. Ground Zero, 383 F.3d at 1092. In particular, the court found that the risk of an accidental explosion of a ballistic missile was remote and speculative and therefore the Navy was not required to analyze the potential environmental impacts of such an incident. Id. at 1090-91.2 16 C. The Proposed Explosives Handling Wharf 17 The EHW-2 would be located adjacent to the existing EHW-1 along the waterfront area 18 at Bangor. EHW 61677. The facility would be constructed both in the water and on land. Id. It 19 would consist of a wharf, where operations would be conducted, and an access trestle. Id. The 20 wharf would be located approximately 600 feet offshore in water 60 to 100 feet deep and would 21 consist of a main wharf, a warping wharf, and lightning protection towers. EHW 61679. The 22 warping wharf would extend from the main wharf and would provide spaces for submarines 23 accessing the wharf and also serve as a safety barrier between submarines entering the EHW-2 24 and EHW-1. Id. The project will include the construction of offices and facilities for personnel 25 and security forces. Id. The general plans for the wharf are depicted in Figure 2-6 of the FEIS. 26 EHW 61692. 27 28 2 The Navy’s initial decision to locate the TRIDENT support facilities at Bangor also was challenged. See Concerned About Trident v. Rumsfeld, 555 F.2d 817 (D.C. Cir. 1977). DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL -3- U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 12 of 45 1 D. 2 The Navy conducted an extensive environmental review process for the proposed EHW-2 3 in accordance with several federal and state environmental protection laws, including NEPA, the 4 Clean Water Act, the Endangered Species Act, the Marine Mammal Protection Act, the National 5 Historic Preservation Act, and the Coastal Zone Management Act. EHW 61667. The Navy 6 7 8 9 The NEPA Process for the Proposed Explosives Handling Wharf published a notice of intent to prepare an environmental impact statement on May 15, 2009. EHW 61668. The Navy conducted scoping from May 15 through July 17, 2009. Id. The Draft Environmental Impact Statement (“DEIS”) was circulated for a 60-day public comment period on March 18, 2011. EHW 61668-69. Subsequently, the Navy prepared a Supplement to the 10 DEIS (“SDEIS”) that analyzed new information relating to the project that became available 11 12 13 14 15 after the publication of the DEIS. EHW 61669. The SDEIS was circulated for a 45-day public comment period on October 7, 2011. Id. The notice of availability of the FEIS was published in the federal register on March 30, 2012. See 77 Fed. Reg. 19,281 (Mar. 30, 2012). The Navy’s Record of Decision (“ROD”) regarding the EHW-2 was signed on May 4, 2012 (EHW 65073) 16 and published on May 18, 2012. See 77 Fed. Reg. 29,620 (May 18, 2012). 17 II. LEGAL BACKGROUND 18 A. National Environmental Policy Act 19 NEPA serves the dual purpose of informing agency decision-makers of the significant 20 environmental effects of proposed major federal actions and ensuring that relevant information is 21 made available to the public so that they “may also play a role in both the decisionmaking 22 process and the implementation of that decision.” See Robertson v. Methow Valley Citizens 23 Council, 490 U.S. 332, 349 (1989). To meet these dual purposes, NEPA requires that an agency 24 prepare a comprehensive environmental impact statement (“EIS”) for “major Federal actions 25 significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C); 40 26 C.F.R. § 1501.3. In reviewing the sufficiency of an environmental impact statement, a court 27 should evaluate whether the agency has presented a “‘reasonably thorough discussion of the 28 significant aspects of the probable environmental consequences.’” California v. Block, 690 F.2d 753, 761 (9th Cir. 1982) (citation omitted). “The reviewing court may not ‘fly speck’ an EIS and DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL -4- U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 13 of 45 1 hold it insufficient on the basis of inconsequential, technical deficiencies.” Ass’n of Pub. Agency 2 Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158, 1184 (9th Cir. 1997) (citation 3 omitted); see also Swanson v. U.S. Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). “Other 4 statutes may impose substantive environmental obligations on federal agencies, but NEPA 5 merely prohibits uninformed – rather than unwise – agency action.” Robertson, 490 U.S. at 351. 6 A reviewing court is not to “substitute its judgment for that of the agency.” Block, 690 F.2d at 7 761. Rather, “[o]nce satisfied that a proposing agency has taken a ‘hard look’ at a decision’s 8 environmental consequences, the review is at an end.” Id. (citing Kleppe v. Sierra Club, 427 9 U.S. 390, 410 n.21 (1976)). 10 B. 11 NEPA creates no private right of action and consequently Plaintiffs’ NEPA claim must Administrative Procedure Act 12 be reviewed under the judicial review provisions of the Administrative Procedure Act (“APA”), 13 5 U.S.C. §§ 701-06. See ONRC Action v. U.S. Bureau of Land Mgmt., 150 F.3d 1132, 1135 (9th 14 Cir. 1998). Under the APA, agency decisions may be set aside only if they are “arbitrary, 15 16 17 18 capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Review under the arbitrary and capricious standard is “‘highly deferential, presuming the agency action to be valid and affirming the agency action if a reasonable basis exists for its decision.’” Nw. Ecosystem Alliance v. U.S. Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 19 2007) (citation omitted). The reviewing court’s only role is to determine whether “the decision 20 21 22 23 24 25 26 27 28 was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 416 (1971). An agency’s decision will be overturned only if the agency relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation for its decision that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. McFarlane v. Kempthorne, 545 F.3d 1106, 1110 (9th Cir. 2008) (citation and quotation marks omitted). The APA “does not allow the court to overturn an agency decision because it disagrees DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL -5- U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 14 of 45 1 with the decision or with the agency’s conclusions about environmental impacts.” River Runners 2 for Wilderness v. Martin, 593 F.3d 1064, 1070 (9th Cir. 2010) (citation omitted). 3 C. 4 Summary judgment is appropriate if there are no genuine issues of material fact and the 5 moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In APA actions, 6 7 8 9 Summary Judgment Standard however, the Court’s review is based on the agency’s administrative record. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883-84 (1990). Thus, the Court’s role is not to resolve factual issues, but rather to determine whether the agency’s record supports the agency’s decision as a matter of law under the APA’s arbitrary and capricious standard of review. See Nw. Motorcycle 10 Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1472 (9th Cir. 1994) (“[T]his case involves review 11 12 13 14 15 16 of a final agency determination under the [APA]; therefore, resolution of this matter does not require fact finding on behalf of this court. Rather, the court’s review is limited to the administrative record.”); Occidental Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir.1985) (In an APA case, “the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision that it did.”). ARGUMENT 17 18 I. THE NAVY’S ANALYSIS OF THE POTENTIAL RISKS TO PUBLIC HEALTH AND SAFETY COMPLIED WITH THE NEPA 19 20 The Navy was not required to disclose classified information or other statutorily 21 protected information relating to national security interests during the NEPA process. The 22 Navy’s analysis of the risk of explosions is protected from disclosure by law and therefore the 23 Navy was not required to disclose it in a public NEPA document. Further, responding to many 24 of Plaintiffs’ arguments relating to the risk of explosions would require the Navy to reveal 25 protected information and therefore the underlying claims are not justiciable. Assuming the 26 Court addresses those claims based solely on public information, Plaintiffs’ claims have no 27 factual or legal basis. Finally, although much of the Navy’s analysis of the risk of explosion is 28 protected, the information that can be disclosed establishes that the chance of an explosion is DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL -6- U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 15 of 45 1 below the established risk threshold of one in a million. The Navy was not required to analyze 2 the potential environmental impacts of such a remote and speculative incident. 3 A. 4 NEPA Does Not Require the Disclosure of Classified Information or Controlled Unclassified Information Relating to National Security 5 Plaintiffs argue that the Navy hid its analysis of the risk of explosions from the public and 6 failed to meet its obligations under NEPA to fully disclose the impacts of its proposed action. Pl. 7 Mot. at 24-25, 28-31. These arguments are without basis because the information that Plaintiffs 8 claim that the Navy should have disclosed is either classified or statutorily protected by 9 applicable law due to its sensitive nature and the potential harm to national security that could 10 result if the information were released.3 11 12 13 14 15 16 There are two categories of statutorily protected information that are applicable here. The first is unclassified controlled nuclear information (“UCNI”). See 10 U.S.C. § 128. UCNI is defined as information whose disclosure could increase the likelihood of “(A) illegal production of nuclear weapons, or (B) theft, diversion, or sabotage of special nuclear materials, equipment, or facilities.” 10 U.S.C. § 128(a)(2). UCNI materials are expressly exempted from disclosure under the Freedom of Information Act (“FOIA”). See 10 U.S.C. § 128(a)(1); 5 U.S.C. 17 § 552(b)(3) (exempting from disclosure material that is protected from disclosure by statute if it 18 19 20 references 5 U.S.C. § 552(b)(3) and “establishes particular criteria for withholding or refers to particular types of matters to be withheld”). The second category is critical infrastructure security information (“CISI”). See 10 21 22 U.S.C. § 130e. Following the Supreme Court’s decision in Milner v. Navy, 131 S. Ct. 1259, 23 1271 (2011), which found that information regarding explosive safety arcs did not fall under 24 FOIA exemption 2, Congress enacted a statute authorizing the Navy to withhold CISI from 25 disclosure under FOIA. See 10 U.S.C. § 130e. CISI includes “explosives safety information 26 (including storage and handling), and other site-specific information on or relating to installation 27 28 3 The Navy is not claiming a national security exemption from NEPA, and therefore Plaintiffs argument that there is no such exemption is irrelevant. See Pl. Mot. at 24-25. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL -7- U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 16 of 45 1 security.” Id. § 130e(c). The Navy withheld UCNI during the NEPA process and later withheld 2 both UCNI and CISI (referred to collectively as Controlled Unclassified Information (“CUI”)) 3 from the Navy’s Administrative Record.4 As explained below, this was entirely appropriate 4 under NEPA. 5 6 7 8 9 The Supreme Court addressed the disclosure requirements of NEPA with respect to sensitive national security information in Weinberger v. Catholic Action of Hawaii, 454 U.S. 139 (1981). In Catholic Action, the Navy planned to build ammunition and weapons storage facilities at the West Loch branch of the Lualualei Naval Magazine in Oahu, Hawaii that would be capable of storing nuclear weapons. Id. at 141. The Navy prepared an environmental impact 10 assessment (“EIA”) analyzing the potential environmental effects of the facilities at West Loch, 11 12 13 14 15 but consistent with national policy and Navy regulations prohibiting the public disclosure of the actual or planned location of nuclear weapons, the EIA did not disclose whether the Navy actually planned to store nuclear weapons at West Loch. Id. at 141. Prior to completion of the facilities, a number of organizations challenged the failure of the Navy to prepare a more detailed 16 EIS and complained that the Navy’s EIA had failed to publicly assess the risks associated with 17 nuclear weapons storage. Id. at 142. The Court began its analysis by identifying the twin goals of NEPA – environmentally 18 19 informed decisionmaking and public disclosure of environmental analyses. Id. at 142-43 (citing 20 42 U.S.C. § 4332(2)(C)). The Court then noted that NEPA expressly limits the latter goal – 21 public disclosure – to materials available to the public under FOIA. Id. at 143; see 42 U.S.C. § 22 4332(2)(C)(v) (“Copies of such statement and the comments and views of the appropriate 23 Federal, State, and local agencies [consulted] . . . shall be made available to the President, the 24 Council on Environmental Quality and to the public as provided by section 552 of Title 5 . . . . 25 ”). Thus, “a federal agency might have to include environmental consideration in its 26 27 28 4 In addition, some documents in the administrative record contain information that is subject to the Arms Export Control Act, 22 U.S.C. § 2751 et seq. and is protected from disclosure pursuant to 10 U.S.C. § 130. See, e.g., EHW 42283-310 (6/3/13). DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL -8- U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 17 of 45 1 decisionmaking process, yet withhold public disclosure of any NEPA document, in whole or in 2 part, under the authority of an FOIA exemption.” Catholic Action, 454 U.S. at 143. The Court 3 further explained that, “[s]ince the public disclosure requirements of NEPA are governed by 4 FOIA, it is clear that Congress intended that the public’s interest in ensuring that federal agencies 5 comply with NEPA must give way to the Government’s need to preserve military secrets.” Id. at 6 145.5 Accordingly, the Navy was not required to disclose whether nuclear weapons would be 7 8 stored at West Loch because that information was classified and therefore exempt from disclosure under FOIA. Id. at 145-46. 9 The Court in Catholic Action based its decision specifically on FOIA exemption 1, which 10 applies to classified information. See 5 U.S.C. § 552(b)(1). The Court noted that exemption 3, 11 12 13 14 15 which protects from disclosure material “specifically exempted from disclosure by statute . . . .” 5 U.S.C. § 552(b)(3), was also potentially relevant based on provisions in the Atomic Energy Act protecting certain nuclear information from public disclosure.6 See Catholic Action, 454 U.S. at 144. But based upon the clear applicability of exemption 1, the Court found it unnecessary to 16 decide whether exemption 3 also applied. Id. Subsequent decisions clarify that the holding of 17 Catholic Action applies equally to information protected by FOIA exemption 3. For example, a 18 case relating to the Navy’s New York Harbor Homeport proposal involved both classified 19 information and material exempt from disclosure under the Atomic Energy Act. See Hudson 20 River Sloop Clearwater, Inc. v. Dep’t of Navy, 891 F.2d 414, 416-17 (2d Cir. 1989). In that case, 21 which also involved facilities capable of housing nuclear weapons, the plaintiffs alleged, inter 22 alia, that the Navy “had failed to comply with NEPA’s public disclosure requirement in its FEIS 23 by failing to discuss the environmental impact of stationing nuclear weapons at the Homeport.” 24 25 26 27 28 5 Consistent with Catholic Action, CEQ’s NEPA regulations provide that for “proposed actions which are specifically authorized under criteria established by an Executive Order or statute to be kept secret in the interest of national defense or foreign policy,” the NEPA analyses for such actions “may be safeguarded and restricted from public dissemination in accordance with the agencies’ own regulations . . . .” 40 C.F.R. § 1507.3(c). 6 The Atomic Energy Act restricts the release of data concerning the “design, manufacture, or utilization of nuclear weapons.” 42 U.S.C. § 2014(y); see also 42 U.S.C. §§ 2162, 2168. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL -9- U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 18 of 45 1 Id. at 417. The Second Circuit affirmed the District Court’s grant of summary judgment for the 2 Navy on this claim relying on Catholic Action and FOIA exemptions 1 and 3. Id. at 421-22. 3 More recently, the Ninth Circuit has addressed the public disclosure requirements of 4 NEPA in San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 635 F.3d 1109 5 (9th Cir. 2011) (“SLOMP”). SLOMP involved a challenge to the Nuclear Regulatory 6 7 8 9 Commission’s (“NRC”) approval of a spent fuel storage facility. Id. at 1112. The NRC declined a request to conduct a “closed” NEPA hearing because it would have required the disclosure of both classified and nuclear “safeguards information.” Id. at 1114. The Ninth Circuit upheld the NRC’s decision to deny a closed hearing. Id. at 1115. The court found that “[t]he NRC may 10 satisfy NEPA even as it withholds FOIA-exempt material; it ‘must consider environmental 11 12 13 14 15 16 17 consequences in its decisionmaking process, even if it is unable to meet NEPA’s public disclosure goals by virtue of FOIA.’” Id. at 1116 (quoting Catholic Action, 454 U.S. at 143). Thus, with regard to the public disclosure requirement of NEPA, the Ninth Circuit drew no distinction between classified information and information that is statutorily protected based upon its sensitive nature. Here, the Navy withheld classified information and UCNI, see 10 U.S.C. § 128, during 18 the NEPA process. The U.S. Department of Defense (“DOD”) later determined that some of the 19 information should be protected as CISI. See 10 U.S.C. § 130e. The Navy’s withholding of the 20 protected information was in keeping with the prior cases, discussed above, in which courts have 21 found that the government does not need to disclose material relating to national security 22 interests that is exempt from disclosure under FOIA exemption 1 or 3, particular where that 23 information may relate to the nation’s nuclear capabilities. See SLOMP, 635 F.3d at 1116; 24 Hudson River Sloop, 891 F.2d at 421-22. Indeed, as aptly noted by the Second Circuit, “giving 25 [the plaintiffs] access to a classified report would defeat the established equilibrium between the 26 27 28 military’s need for secrecy and the public’s right to have access to official information.” Hudson River Sloop, 891 F.2d at 423 (citing Catholic Action, 454 U.S. at 145). In light of these precedents, Plaintiffs’ allegations that the Navy inappropriately withheld information relating to DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 10 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 19 of 45 1 its analysis of explosive risk are without basis because, as described below, those analyses are 2 either classified or contain CUI. 3 4 5 B. The Navy Was Not Required to Disclose Its Analysis of the Potential Risks of Explosion in the FEIS Because to Do So Would Require the Disclosure of Classified Information and Controlled Unclassified Information Plaintiffs argue that the FEIS violates NEPA because it does not contain more 6 information and analysis regarding the risk of explosions. See Pl. Mot. at 28-29. The Navy 7 8 9 10 11 assessed the potential risk of explosions relating to the EHW-2, but the relevant documents contain classified information or CUI and therefore cannot be publicly disclosed. Briefing materials that reference the Navy’s analyses are in the administrative record, but many of those materials have been redacted to remove classified information or CUI. See, e.g., Briefing for 12 DDESB on the Naval Base Kitsap EHW-2 Site Plan, March 8, 2012 (EHW 75261 (6/3/13)); 13 Risk Estimates for EHW1 and EHW2 at Bangor (EHW 75292 (6/3/13)); Read Ahead Table of 14 Contents, Secretarial Certification for Naval Base Kitsap-Bangor (EHW 75292 (6/3/13)); 15 Explosives Safety Secretarial Certification (EHW 75393 (6/3/13)). Other documents that are 16 designated as classified contain the Navy’s analysis of the risks of explosions at Bangor. See 17 Index of Classified Documents (ECF No. 25-3) (listing Option A and Mitigating Vulnerabilities, 18 2010 Site Vulnerability Assessment (SWFPAC), and 2011 Site Vulnerability Assessment 19 (SWFPAC)). Thus, the information that Plaintiffs assert should have been disclosed during the 20 NEPA process is either classified or contains CUI and therefore was not required to be disclosed 21 22 23 24 in the FEIS. See Catholic Action, 454 U.S. at 145-46. Plaintiffs specifically argue that the Navy should have disclosed Appendix C to the FEIS. See Pl. Mot. at 31. As explained in the FEIS, Navy guidance documents contain criteria for establishing distances between types and quantities of explosives at Navy facilities to protect 25 lives and property in the event of an explosion. EHW 62261; EHW 62262. These distances are 26 27 28 depicted on maps and referred to as explosives safety quantity distance (“ESQD”) arcs. See EHW 75424-12. The ESQD arcs established by the Navy for EHW-1 and EHW-2 are contained in FEIS Appendix C, which are designated as CUI and therefore are protected from disclosure to DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 11 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 20 of 45 1 the public. Id.; EHW 62262. Because the information in Appendix C is statutorily protected, the 2 Navy was not required to disclose it. See Catholic Action, 454 U.S. at 145-46.7 3 C. 4 5 Plaintiffs’ Arguments Regarding Compliance With Explosive Safety Standards and the Degree of Risk Are Not Justiciable Because a Complete Response Would Require the Navy to Reveal Protected Information Plaintiffs claim that the Navy violated NEPA because the FEIS allegedly misrepresents 6 information in the record regarding the explosive safety risks associated with the EHW-2. They 7 8 9 10 11 claim, for example, that “the siting violates federal explosives safety standards” and that the U.S. Department of Defense Explosives Safety Board (“DDESB”) “withheld approval of EHW-2 based on unacceptable danger.” Pl. Mot. at 27. They also claim that the construction of the EHW-2 would lead to an increased risk of explosion due, in part, to the fact that operations 12 would be conducted at both wharves. See Pl. Mot. at 27, 30. These arguments are based on 13 incorrect inferences they draw from documents that have been redacted (sometimes heavily) to 14 remove CUI. For example, Plaintiffs cite a March 8, 2012 briefing that the Navy prepared for 15 the DDESB. EHW 75261 (6/3/13). Plaintiffs point to the discussion in the document regarding 16 the worst-case types of accidents that could possibly occur, e.g., a missile toppling or being 17 dropped. Pl. Mot. at 10; EHW 75272-73 (6/3/13). But the Navy’s analysis of the probability of 18 such incidents occurring, as well as a significant amount of additional information, has been 19 redacted. See EHW 75274-81 (6/3/13). Several other documents that discuss the probability of 20 explosions and the Navy’s correspondence with the DDESB have been similarly redacted. See, 21 22 23 e.g., EHW 75292-94 (6/3/13); EHW 115721-26 (8/15/13). Although the inferences that the Plaintiffs draw from the documents are incorrect, the Navy cannot respond fully to the Plaintiffs’ arguments without revealing protected information. 24 Because fully litigating Plaintiffs’ claims regarding compliance with explosive safety 25 standards and the degree of explosive risk would require the Navy to reveal protected 26 27 28 7 Plaintiffs argue that ESQD arcs have been released in the past. See Pl. Mot. at 13. But that is irrelevant because the Navy has designated Appendix C as CUI. EHW 75424-10. Contrary to Plaintiffs’ assertion, EHW 115981 (8/15/13) does not disclose ESQD arcs. See Pl. Mot. at 13. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 12 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 21 of 45 1 information, those claims are not justiciable under the Supreme Court’s decision in Catholic 2 Action. See 454 U.S. at 146-47 (“‘[P]ublic policy forbids the maintenance of any suit in a court 3 of justice, the trial of which would inevitably lead to the disclosure of matters which the law 4 itself regards as confidential, and respecting which it will not allow the confidence to be 5 violated.’” (quoting Totten v. United States, 92 U.S. 105, 107 (1876)). Other cases have 6 7 8 9 expressly followed the non-justiciability holding of Catholic Action. See Hudson River Sloop, 891 F.2d at 423-24 (holding that whether the Navy had complied fully with NEPA with respect to the homeporting of ships that allegedly held nuclear weapons was beyond judicial review); Laine v. Weinberger, 541 F. Supp. 599, 602-03 (C.D. Cal. 1982) (granting summary judgment to 10 the Navy on a NEPA claim because the plaintiffs could not establish the presence of nuclear 11 12 13 14 15 weapons). Moreover, the non-justiciability holding of Catholic Action is not confined to classified information, but applies to other types of sensitive information, including nuclear “safeguards information.” See SLOMP, 635 F.3d at 1114. Safeguards information relates to the procedures 16 for controlling and securing nuclear material and related facilities and equipment. See 42 U.S.C. 17 § 2167(a). Thus, it is similar in many respects to UCNI, which is information relating to 18 “security measures, including security plans, procedures, and equipment for the physical 19 protection of special nuclear material.” 10 U.S.C. § 128(a)(1). And it is similar to both UCNI 20 and CISI in that Congress has determined that such information should be protected from 21 disclosure to the public under FOIA. Compare 42 U.S.C. § 2167(a) with 10 U.S.C. § 128(a)(1); 22 10 U.S.C. § 130e(a). In SLOMP, information regarding terrorist attack scenarios was protected 23 as safeguards information. 635 F.3d at 1116. The Ninth Circuit held that the NRC could not be 24 required to reveal FOIA-exempt safeguards information during the NEPA process and that 25 “Weinberger’s animating principle,” i.e., the principle that certain types of information are 26 27 beyond judicial review in a NEPA case, applied. Id.; see also Hudson River Sloop, 891 F.2d at 421 (applying Catholic Action to information protected by the Atomic Energy Act). 28 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 13 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 22 of 45 1 Here, similar to SLOMP, the fact that there is a risk of explosions at Bangor is not 2 protected, but underlying information relating to that risk is protected. The Navy was not 3 required to disclose its analysis of those risks during the NEPA process and it is not required to 4 litigate Plaintiffs’ claims regarding such risk because a complete response to those claims would 5 necessarily reveal sensitive information that is protected from disclosure for the benefit of 6 7 8 9 national security and public safety. See Catholic Action, 454 U.S. at 146 (“Ultimately, whether or not the Navy has complied with NEPA to ‘the fullest extent possible’ is beyond judicial scrutiny in this case.”); SLOMP, 635 F.3d at 1116 (finding that, as in Catholic Action, the “FOIA-exempt materials the NRC used in its NEPA process” were not subject to judicial 10 review). Accordingly, summary judgment should be granted to the Navy on all of Plaintiffs’ 11 12 claims relating to the risk of explosions. D. 13 In the event that the Court determines that Plaintiffs’ claims regarding the risk of 14 15 There Are No Misstatements in the FEIS Regarding Explosive Risk explosions are justiciable, Defendants respond below to Plaintiffs’ assertions to the extent 16 possible without revealing protected information. The Court should be aware, however, that for 17 the reasons discussed above, Defendants cannot reveal a substantial amount of information 18 relating to explosive risk. Therefore, should it choose to adjudicate those claims, the Court will 19 be relying on incomplete information. 1. 20 21 The Navy’s Decision Was in Accordance with DDESB Requirements As mentioned previously, Plaintiffs claim that the Navy violated DDESB safety 22 requirements. See Pl. Mot. at 27, 30. Based on that premise, they further claim that it was 23 misleading for the Navy to state in the FEIS that the ESQD arcs for the EHW-2 comply with 24 DDESB requirements. Id.; see also id. at 30. These allegations are not true and Plaintiffs have 25 failed to demonstrate a violation of NEPA.8 26 27 28 8 Whether the Navy, as a substantive legal matter, complied with internal DOD and Navy guidance regarding explosive risk is beyond the scope of this lawsuit and would likely be nonjusticiable in any event. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 14 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 23 of 45 1 The DDESB is an agency within DOD whose role is to evaluate explosives safety issues 2 at DOD installations. See 10 U.S.C. § 172. DDESB has been involved in numerous decisions 3 regarding explosive safety at Bangor since the base was first built more than 30 years ago. See 4 EHW 115616-18. In May 2011, the Navy sought preliminary approval from the DDESB for the 5 construction of the EHW-2. EHW 52985 (6/3/13). The DDESB granted preliminary approval to 6 7 8 9 the Navy subject to certain conditions relating to the Navy’s operations at Bangor. See EHW 115606-13. Final approval was contingent upon the Navy providing additional data showing that the detonation of the D5 missiles in a submarine at one wharf would not cause the sympathetic detonation of missiles at the other wharf. EHW 115723 (8/15/13); see also EHW 75299 10 (6/3/13). As an alternative, the DDESB indicated that the Navy could accept the risks of an 11 12 explosive mishap at Bangor. EHW 115609. The Navy responded to the DDESB in December 2011 and asked that it reconsider the 13 14 15 conditions in light of the fact that the proposed siting at Bangor was based on siting relationships that had previously been approved for Bangor and King’s Bay, Georgia.9 EHW 115616-618; see 16 also EHW 115771; EHW 75298 (6/3/13). In an internal memorandum in January 2012, the 17 Navy explained that the DDESB’s conditions would significantly impact operations at Bangor if 18 the EHW-2 were constructed. EHW 115721-22 (8/15/13). Further, the Navy explained that, 19 although several tests had been conducted on the sensitivity of D5 missile motor propellant, there 20 was no data to respond to the DDESB’s specific inquiry and such data would be difficult to 21 obtain. EHW 115723 (8/15/13). The Navy also explained that “the restriction of handling one 22 missile, with all other missile tubes closed, makes a mass detonation of the entire submarine 23 unlikely.” Id. The Navy also noted that “[t]here are no new increased risks created by the 24 proposed construction of EHW-2 that the DDESB has not seen in routine site approvals 25 submitted on a regular basis . . . over the past three decades.” EHW 115725 (8/15/13). Given 26 27 28 9 The Navy operates two EHWs at Naval Submarine Base King’s Bay, Georgia. EHW 62262. The DDESB approved the siting of the two EHWs at King’s Bay in 1985. EHW 76987-88. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 15 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 24 of 45 1 the pressing operational need for the EHW, the Navy also initiated the process for obtaining a 2 Secretarial Certification. See EHW 115733-44 (8/15/13). 3 Navy officials met with the DDESB on March 8, 2012 to discuss the siting of the EHW- 4 2. See EHW 115770; EHW 75261 (6/3/13). At the meeting, the Navy presented an analysis 5 showing that the risk of an explosion occurring was extremely low and below the DDESB 6 threshold of 1 x 10-6 (one in one million). See EHW 115771; EHW 115772-74; see also EHW 7 8 9 75263-82 (6/3/13). The meeting, however, did not lead to a resolution. The Navy then decided to satisfy the DDESB’s requirements by completing the process for obtaining a Secretarial Certification and accepting the risk of an explosive mishap. EHW 75295 (6/3/13); EHW 75393 10 (6/3/13). Secretarial Certification is an acceptable method of authorizing the siting of DOD 11 12 13 14 15 installations pursuant to DOD guidance. See EHW 75405 (6/3/13); EHW 75295 (6/3/13). On March 28, 2012, after considering the recommendations of several senior Navy officials, see EHW 75296 (6/3/13), the Assistant Secretary of the Navy issued a Secretarial Certification accepting the risks associated with construction and operation of the EHW-2. EHW 115776 16 (8/15/13); see also EHW 115777-79. This decision was based on a number of factors, including 17 the extremely low risk of an explosion, the pressing operational need for additional wharf 18 capacity, the previous approvals by the DDESB of siting decisions at Bangor and King’s Bay, 19 and the unavailability of alternative locations. See EHW 75397-401 (6/3/13); EHW 115776 20 (8/15/13); see also EHW 115743-44 (8/15/13). The Navy was also mindful of the fact that an 21 additional study would be expensive and time consuming such that operational needs could not 22 be met, and it might not meet the DDESB’s expectations sufficiently to avoid the need for a 23 Secretarial Certification anyway. See EHW 75301 (6/3/13); EHW 75399-401 (6/3/13). 24 25 26 27 28 As the discussion above demonstrates, the DDESB review process for the EHW-2 proceeded according to DOD guidance, and the Secretarial Certification was, in fact, suggested as a viable alternative by the DDESB. Contrary to Plaintiffs’ assertions, the DDESB did not say that the EHW-2 presented increased risk or that the degree of risk was unacceptable. Indeed, the fact that the Navy’s decision was in accordance with past DDESB approvals and consistent with DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 16 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 25 of 45 1 the siting relationship of the two wharfs at King’s Bay, Georgia, demonstrates that the 2 construction and operation of the EHW-2 does not present any greater risks to the public. See 3 EHW 115725 (8/15/13); EHW 115771. Further, in conjunction with the construction of EHW-2, 4 the project called for modifying or demolishing several structures in order to comply with 5 DDESB and Naval Ordnance Safety and Security Activity (“NOSSA”) requirements. EHW 6 7 8 9 61687. The Navy also eliminated certain alternatives from consideration because they would not meet explosive safety requirements. EHW 61705. Accordingly, the FEIS appropriately indicated that the EHW-2 would comply with the DDESB requirements. EHW 62262. Finally, the Navy was not required to include additional information relating to the 10 communications with the DDESB in the FEIS and doing so would have served no purpose. See 11 12 13 14 15 Pl. Mot. at 12, 33-34. The Navy consulted with the DDESB only for the very specific purpose of obtaining authorization for the siting of the EHW-2 in light of the potential explosive safety risk. As the Ninth Circuit recognized in prior litigation regarding Bangor, “The Department of Defense . . . regulations that govern base planning have different aims and standards than 16 NEPA.” Ground Zero Ctr., 383 F.3d at 1090. Thus, providing additional discussion of the 17 DDESB’s communications regarding explosive safety risk would not have added significantly to 18 the information in the FEIS. See section II.A., infra. Further, significant portions of the 19 DDESB’s findings in its October 27, 2011 memorandum are protected as CUI. See EHW 20 115606-13. Therefore, that information could not have been disclosed in the FEIS and was not 21 required to be under Catholic Action, 454 U.S. at 145-46. 22 23 24 2. There is No Increased Risk to the Public Due to the Construction and Operation of the Second Wharf As explained in the FEIS, the Navy has a 30-year record of safe operations at Bangor. 25 EHW 62262; EHW 62264. Safety is maintained through testing of weapons systems, specialized 26 facilities and equipment, and training of personnel. EHW 62262. The weapons systems are 27 tested under extreme conditions to ensure that the conditions under which the weapons are 28 actually handled are safe. Id. The personnel who handle explosives undergo rigorous training DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 17 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 26 of 45 1 and are tested annually for proficiency. Id. Safety procedures are periodically reviewed and 2 revised to ensure that explosives are handled safely. EHW 65096. Further, the construction of 3 the EHW-2 would not increase the number of TRIDENT submarines at Bangor or change the 4 weapons systems. Id. Accordingly, the Navy’s statement in the FEIS that the construction of the 5 EHW-2 would not result in an increased risk to public health and safety, see, e.g., EHW 62265, 6 was justified. 7 8 9 Plaintiffs’ arguments that the construction of the wharf would lead to increased dangers due to the activities at the two wharves and the weapons systems being used are without basis. See Pl. Mot. at 27, 30. First, they suggest that the Navy’s use of D5 missiles and guided missile 10 submarines (“SSGN”) create increased risks of explosions. See Pl. Mot. at 3-4. But the purpose 11 12 13 14 15 of constructing the EHW-2 is to address existing needs relating to the Navy’s TRIDENT program, not to introduce new types of weapons. EHW 61661; EHW 65096. In fact, the Navy upgraded to the D5 missiles in the 1990s. EHW 61661. The Navy prepared an environmental assessment for the upgrade and Ground Zero Center for Non-Violent Action and other groups 16 challenged that decision on the grounds that it violated NEPA. See Ground Zero Ctr., 383 F.3d 17 at 1084-85. Accordingly, the use of D5 missiles is not new and the Navy’s NEPA compliance 18 with respect to the D5 missile has already been litigated. Similarly, the Navy’s proposal does not 19 include adding SSGNs, which have been at Bangor since 2006. See EHW 61704; EHW 74344 20 (6/3/13).10 21 Plaintiffs also claim that the removal of the fragmentation barrier at Bangor increases the 22 risk of explosions. See Pl. Mot. at 4-5. Following a separate NEPA process, the Navy made a 23 decision to remove the fragmentation barrier in 2011 as part of the Pile Replacement Project, and 24 it has since been removed. See EHW 97450. Thus, any challenge to the removal of the 25 26 10 27 28 SSGNs do not use the TRIDENT weapon system, which was the reason that more wharf capacity was needed at Bangor. See EHW 61657. SSGN Tomahawk missiles are generally handled at Indian Island, not at Bangor. EHW 74670; EHW 109034. The DDESB process undertaken in 2006 permits the Navy to use the EHW-1 as an alternative location for SSGN weapons handling and maintenance. EHW 61704; EHW 109037. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 18 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 27 of 45 1 fragmentation barrier and the NEPA analysis underlying that decision is moot. Feldman v. 2 Bomar, 518 F.3d 637, 642 (9th Cir. 2008) (“The basic question in determining mootness is 3 whether there is a present controversy as to which effective relief can be granted.” (citation 4 omitted)). Perhaps more important, with respect to explosive risk, it is up to the Navy to 5 determine whether in its judgment a fragmentation barrier is necessary. While the Navy’s 6 7 8 9 rationale for that determination cannot be revealed because it would reveal information that is protected as CUI, the Court should defer to the expert judgment of the Navy that a fragmentation barrier is not required. See Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir. 2008) (en banc) (A court must “defer to an agency’s determination in an area involving a ‘high level of 10 technical expertise.’”) (citation omitted), abrogated on other grounds, Winter v. Natural Res. 11 12 13 14 15 Def. Council, Inc., 555 U.S. 7 (2008); see also Ground Zero Ctr., 383 F.3d at 1090 (the Navy was entitled to rely on the views of its own experts regarding explosive risk). Finally, Plaintiffs claim that the potential for simultaneous handling of missiles at the two wharves will create an increased risk of explosions. See Pl. Mot. at 7, 30. Plaintiffs’ claim is 16 based purely on speculation and ignores the fact that the risk of an explosion at one wharf is 17 remote. See Ground Zero Ctr., 383 F.3d at 1090. The Navy analyzed the risk based on having 18 two wharves and concluded that the risk would continue to be extremely low and would be well 19 within DDESB standards. See, e.g., EHW 75286 (6/3/13) (the risk of an explosion would be 20 “much less than 1 x 10-6 even if the [p]robability of an accident is assigned a probability of 1”); 21 see also EHW 115774; EHW 75290 (6/3/13) (DDESB threshold). Therefore, Plaintiffs are 22 simply incorrect in asserting that the construction of the second wharf will increase the risk of 23 explosions or increase the danger to the public. 24 E. 25 The Navy Was Not Required to Analyze the Potential Impacts of an Explosion Because the Risk of an Explosion is Remote and Speculative 26 Plaintiffs appear to also argue that the Navy was required to disclose, not just its analysis 27 of the risk of explosions, but also the environmental consequences of an explosion. See Pl. Mot. 28 at 28 (arguing that the impact of an explosion would be severe). This argument is foreclosed by DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 19 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 28 of 45 1 the previous litigation over the Navy’s Backfit Program at Bangor, in which the Ninth Circuit 2 rejected the very same argument. See Ground Zero Ctr., 383 F.3d at 1090-91. There, Ground 3 Zero Center argued that the Navy was required to analyze the potentially “catastrophic 4 consequences” of an explosion. Id. at 1091. The Navy relied on studies conducted between 5 1992 and 1996 showing that the risk of an accident occurring during loading or unloading of 6 7 8 9 missiles was less than one in one million and the risk of an accident leading to an explosion was between one in one million and one in one trillion. Id. at 1090. The Ninth Circuit found that because the risk of an accidental explosion was remote, the Navy was not required by NEPA to analyze the potential impacts of such an explosion. Id. at 1090-91; see also Warm Springs Dam 10 Task Force v. Gribble, 621 F.2d 1017, 1026-27 (9th Cir. 1980) (“[A]n environmental impact 11 12 13 14 15 statement need not discuss remote and highly speculative consequences.”) (citing Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974)). Although the Navy cannot disclose its analysis of the risk of explosions at Bangor associated with the EHW-2 because it is protected as CUI, the chances of such an occurrence 16 remain remote. The Navy’s analysis concluded that the risk of an accidental explosion was “well 17 below” DOD’s threshold of one in one million (1 x 10-6). EHW 75294 (6/3/13). Further, the 18 Navy’s analysis was based, at least in part, on the Propellant Hazards Test and Analysis Program 19 (“PHTAP”) studies conducted from 1992 – 1996 that were previously cited by the Navy and 20 relied on by the Ninth Circuit. See id. (citing PHTAP study); Ground Zero Ctr., 383 F.3d at 1090 21 (referencing studies conducted between 1992 and 1996). The Navy has conducted further 22 assessment of data, see EHW 75269-82 (6/3/13), and confirmed that its initial estimates of risk 23 were conservative. EHW 75282 (6/3/13). The Navy concluded that the probability of an 24 explosion in the event of a missile handling accident is “much less” than one in one million, and 25 the risk of an accident occurring at all is “extremely low.” EHW 75286 (6/3/13). Accordingly, 26 27 28 the risk of an explosion is no less remote than it was a decade ago, and Plaintiffs’ argument that the Navy was required to analyze the impacts of an explosion should be rejected, as it was before. See Ground Zero Ctr., 383 F.3d at 1091. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 20 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 29 of 45 1 II. 2 THE NAVY COMPLIED WITH NEPA’S PUBLIC DISCLOSURE REQUIREMENT Plaintiffs argue that Defendants violated NEPA by failing to disclose five documents 3 4 during the NEPA process. Those documents are: Appendices A, B, and C to the FEIS, the 5 Explosive Handling Wharf-2 Business Case Analysis and Risk Assessment (Nov. 6, 2008) 6 (“Business Case Analysis”), and the Facility Design Criteria for P-990 Explosives Handling 7 Wharf Number 2 (Lockheed Martin) (“Facility Design Criteria”). See Pl. Mot. at 14-16, 30-31. 8 Except for a limited amount of text that was subsequently disclosed, Appendix C contains ESQD 9 arc information, which is protected from disclosure as CUI. See EHW 75424-10 – 75424-13. 10 Therefore, the Navy was not required to disclose the information in Appendix C during the 11 NEPA process. See section I.B., supra. With respect to the remaining documents complained 12 of, the Navy did not disclose them during the NEPA process, in part, because they contain 13 14 15 16 classified information or CUI. The Navy later determined that portions of the documents could be released in response to FOIA requests or in the Navy’s Administrative Record. As explained below, however, the non-disclosure of portions of those documents did not have a significant effect on the public’s ability to comment during the NEPA process or on the Navy’s 17 decisionmaking process and therefore did not violate NEPA. 18 A. 19 20 21 22 23 24 25 26 27 The Non-Disclosure of Information In an EIS Only Violates NEPA If That Information Would Have Been Significant to the Public’s Review The non-disclosure of particular information during the NEPA process does not, itself, violate NEPA. See Laguna Greenbelt, Inc. v. U.S. Dep’t of Transp., 42 F.3d 517, 528 (9th Cir. 1994). In determining whether NEPA has been violated, we must look to the ultimate harm NEPA seeks to prevent: the risk of damage to the environment that results if the agency fails to properly and thoroughly evaluate the environmental impacts of a proposed project. Thus, even where there is a violation of NEPA’s procedural requirements, relief will not be granted if the decision-maker was otherwise fully informed as to the environmental consequences and NEPA’s goals were met. 28 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 21 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 30 of 45 1 Id. at 527 (citations omitted). The twin goals of NEPA are informed decisionmaking and the 2 involvement of the public. Robertson, 490 U.S. at 349. Thus, when information is not disclosed 3 during a NEPA process, a court should “examine the nature of the non-disclosure to determine 4 whether it significantly added to the information available to decision-makers and the public.” 5 Columbia Basin Land Prot. Ass’n v. Schlesinger, 643 F.2d 585, 595 (9th Cir. 1981) (finding that 6 7 8 9 NEPA was not violated where a document providing a further breakdown of figures in the EIS was not provided to the public). Further, an EIS need not contain complete discussions of all of the data and information relied upon in the EIS. See Trout Unlimited, 509 F.2d at 1284. Rather, an EIS need only contain 10 sufficient detail such that the public is “adequately informed of the probable significant 11 12 13 14 15 environmental impacts” of a project. Id. Nor is there any requirement that all reports and studies relied upon in the EIS be attached to the EIS. Id. Finally, in determining whether NEPA has been violated, the Court should consider whether any prejudice resulted to the Plaintiffs from the non-disclosure. See Warm Springs Dam Task Force, 621 F.2d at 1022 (“The Corps made a good 16 faith effort to comply with NEPA as it reasonably understood it, and no prejudice resulted from 17 its failure to obtain [the U.S. Geological Survey’s] written comments.”). 18 B. The Information in Appendices A and B Was Either Previously Disclosed Or Was Not Material to the Public’s Review of the FEIS 19 20 21 22 Appendix A contains additional explanation of the need for the EHW-2. See EHW 73717-06 – 73717-11. It is 6 pages long and much of the information contained in it was provided in the Draft Environmental Impact Statement (“DEIS”) and the FEIS. The first page of 23 Appendix A is the title page and the second page is blank. EHW 73717-06 – 73717-07. The 24 first three paragraphs on page 3, the first and last two paragraphs on page 5, and the paragraphs 25 on page 6 discuss the needs of the Navy’s TRIDENT program that require the use of an EHW, 26 e.g., the maintenance and testing of weapons systems, the loading and offloading of missiles, the 27 need for 400 operational days per year to support program requirements, and the fact that the 28 EHW-1 will be limited to 185 operational days per year until 2024 due to the pile replacement DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 22 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 31 of 45 1 project. EHW 73717-08. That information was provided in the DEIS and FEIS. See EHW 2 48798-804 (DEIS), EHW 61657-64 (FEIS).11 The figure on page 4 was not provided in the 3 DEIS or FEIS, but that figure and the text below it merely provide additional detail regarding the 4 specific program requirements that are driving the Navy’s need for 400 operational days per 5 year. See EHW 73717-09. The fact that the Navy did not provide more detail on the specific 6 7 service and maintenance requirements in the public DEIS or FEIS does not render the NEPA process inadequate. See Columbia Basin, 643 F.2d at 595. 8 9 The only information in Appendix A that was not substantially disclosed in the DEIS or FEIS is at the bottom of page 1 and the middle of page 3. In those sections, the Navy discusses 10 the risks associated with the lack of capacity at the EHW-1 and the specific steps that the Navy is 11 12 13 14 15 taking to manage those risks until additional capacity becomes available, e.g., investigating methods to reduce missile handling time and increasing staffing and conducting additional work in backshifts. EHW 73717-08, 73717-10. The fact that this particular information was not disclosed in the DEIS or FEIS did not prejudice Plaintiffs because the Navy already explained 16 the need for 400 operational days per year – this additional information only shows the lengths to 17 which the Navy has gone to try to meet its program requirements until additional wharf capacity 18 becomes available. Appendix B provides information regarding alternatives that were considered by the 19 20 Navy during the NEPA process but that were not carried forward for additional analysis. See 21 EHW 75424-14 – 75424-20. In particular, Appendix B describes in detail the terminal concept, 22 which is a land-based alternative to the EHW-2. EHW 75424-16 – 75424-18. As explained in 23 the DEIS and FEIS, the terminal concept was eliminated from detailed consideration because it 24 posed technological difficulties, operational challenges due to the need to transport missiles by 25 crane, and safety risks. EHW 48837 (DEIS), EHW 61707 (FEIS). Appendix B merely provides 26 more detail regarding the technological and operational issues and safety risks posed by the 27 28 11 Between the DEIS and FEIS, the Navy determined that additional information contained in Appendices A, B, and C and the Business Case Analysis could be released. EHW 65095. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 23 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 32 of 45 1 terminal concept. EHW 75424-16 – 75424-18. Thus, the information was already summarized 2 in the DEIS and FEIS and providing the additional detail in Appendix B would not have added 3 anything significant to the NEPA process. See 40 C.F.R. § 1502.14(a) (An EIS need only 4 “briefly discuss the reasons” for eliminating an alternative from a detailed analysis.) 5 6 7 8 9 Appendix B also discusses alternatives for meeting the Navy’s operational needs without constructing the EHW-2 and why those options are not feasible. EHW 75424-18 – 75424-20. The Navy summarized those options (e.g., expediting repairs at EHW-1, temporarily relocating submarines, and modifying existing facilities) in the DEIS and the FEIS and explained that these options would not meet the operational requirements of the TRIDENT program. EHW 48837 10 (DEIS), EHW 61707 (FEIS). Appendix B provides additional explanation as to why these 11 12 13 14 15 16 options would not meet the Navy’s needs. EHW 75424-18 – 75424-20. Providing the more complete explanation in the DEIS and FEIS would not have added significantly to the NEPA process, nor is it required by NEPA’s implementing regulations. Therefore, the Navy’s nondisclosure of Appendix B did not violate NEPA. See Columbia Basin, 643 F.2d at 595. C. The Navy Was Not Required to Append the Business Case Analysis to the FEIS 17 18 19 20 The Business Case Analysis contains classified information and CUI, see EHW 61707; EHW 65095, and is therefore exempt from disclosure under FOIA exemptions 1 and 3. See 5 U.S.C. §§ 552(b)(1), (b)(3). Plaintiffs appear to concede that the classified portions of the 21 document need not have been disclosed during the NEPA process. See Pl. Mot. at 14-15, 31. In 22 any event, under Catholic Action, information that is exempt from disclosure under FOIA need 23 not be disclosed during the NEPA process. See 454 U.S. at 143 (citing 42 U.S.C. § 4332(2)(C)). 24 Plaintiffs argue that portions of the Business Case Analysis were released in response to a FOIA 25 request and therefore at least those portions should have been appended to the FEIS. Pl. Mot at 26 31. But NEPA contains no requirement that all underlying analyses be included as appendices to 27 the FEIS. See Trout Unlimited, 509 F.2d at 1284. The Business Case Analysis contains a 28 preliminary analysis by the Navy of the current wharf capacity at Bangor and potential DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 24 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 33 of 45 1 alternatives to constructing a second wharf. See EHW 37218-26; EHW 37233-59; see also 2 EHW 61661 and EHW 61707. Based on the analysis in the Business Case Analysis, the Navy 3 concluded that its needs could not be met without constructing the EHW-2. EHW 61661. 4 5 6 7 8 9 Consistent with NEPA regulations, the Navy incorporated the analysis in the Business Case Analysis by reference in the FEIS to the extent possible without revealing classified information or CUI. See 40 C.F.R. § 1502.21; see also EHW 61661; EHW 63043 (“The Navy has also revised Section 1.2, Purpose and Need, to include additional unclassified non-sensitive information from the Business Case Analysis.”); EHW 65095. Further, in the Business Case Analysis, the Navy analyzed a number of preliminary alternatives that it determined would not 10 meet the needs of the TRIDENT program and therefore were not carried forward for analysis in 11 12 13 14 15 the FEIS. EHW 61707. The Navy was not required to provide additional information in the FEIS about these other alternatives that were preliminarily analyzed and found not to meet the Navy’s needs and doing so would have served no purpose. See 40 C.F.R. § 1502.14(a) (For alternatives that are eliminated from detailed analysis, an agency need only “briefly discuss the 16 reasons for their having been eliminated.”).12 Therefore, the Navy’s disclosure in the FEIS of the 17 relevant, non-sensitive information in the Business Case Analysis complied with NEPA. D. 18 The Navy Was Not Required to Disclose the Facility Design Criteria During the NEPA Process 19 The Facility Design Criteria was a technical report prepared by a contractor, Lockheed 20 21 22 23 Martin, in July 2010. See EHW 75061 (8/15/13). It defines the general design parameters and requirements for the construction of the EHW-2. EHW 75072 (8/15/13). Although the Navy determined that substantial portions of the document could be released, other portions of the 24 25 26 27 28 12 Although the Business Case Analysis did analyze cost, see EHW 37233-39, that analysis was ultimately not “relevant to the choice among environmentally different alternatives being considered for the proposed action.” 40 C.F.R. § 1502.23. Alternatives described in the Business Case Analysis were rejected not due to costs, but because they would not meet the Navy’s needs. See EHW 61661; EHW 61707. Accordingly, the non-sensitive portions of the Business Case Analysis were not required to be appended to the FEIS on the basis that it is a cost-benefit analysis. See Pl. Mot. at 31. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 25 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 34 of 45 1 document contain sensitive information and therefore were not required to be disclosed. See, 2 e.g., EHW 75086-87 (8/15/13). More importantly, the FEIS contains a description of the actual 3 design alternatives being considered. See EHW 61678-705. A discussion of the general 4 parameters outlined in the Facility Design Criteria would not have added significantly to the 5 discussion of alternatives in the FEIS. Therefore, the Navy was not required to include 6 7 8 additional information contained in the Facility Design Criteria in the FEIS or append it to the FEIS. See Columbia Basin, 643 F.2d at 595.13 III. 9 10 THE NAVY DID NOT PREDETERMINE THE OUTCOME OF THE NEPA PROCESS FOR THE EXPLOSIVES HANDLING WHARF Plaintiffs claim that the Navy predetermined the outcome of the NEPA process for the 11 EHW-2 by previously deciding not to expedite repairs of the EHW-1. See Pl. Mot. at 31-32 12 (citing 40 C.F.R. §§ 1502.2(f), 1506.1(a)(2)). This argument is without merit because, as the 13 14 15 record documents clearly show, even when the piles for the EHW-1 have been replaced, the EHW-1 alone cannot meet the Navy’s needs. The Navy issued the FEIS before making a decision regarding the project and did not predetermine the outcome of the NEPA process. 16 Generally speaking, a NEPA analysis should “‘be prepared early enough so that it can 17 serve practically as an important contribution to the decisionmaking process and will not be used 18 19 20 21 22 to rationalize or justify decisions already made.’” Native Ecosystems Council v. Dombeck, 304 F.3d 886, 892 (9th Cir. 2002) (quoting Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir. 2000)). More specifically, the Ninth Circuit has held that the critical point at which a NEPA analysis must be prepared is before the agency makes an “‘irreversible and irretrievable commitment of 23 resources’” towards a particular course of action. WildWest Inst. v. Bull, 547 F.3d 1162, 1168 24 (9th Cir. 2008) (quoting Metcalf, 214 F.3d at 1143); Native Ecosystems, 304 F.3d at 892; see 25 26 27 28 13 Plaintiffs also argue that the Navy violated 40 C.F.R. § 1506.6(f), which requires agencies to produce environmental impact statements and related documents in response to FOIA requests. See Pl. Mot. at 16, 31. Plaintiffs have not brought a FOIA claim and therefore whether the Navy properly responded to Plaintiffs’ FOIA requests is beyond the scope of this lawsuit. Defendants note (as Plaintiffs acknowledge) that a redacted version of the Business Case Analysis was provided to Plaintiffs in response to a FOIA request. See Pl. Mot. at 31; see also EHW 63043. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 26 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 35 of 45 1 also Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 714-16 (10th Cir. 2010). An 2 agency does not make an irreversible and irretrievable commitment of resources if it retains full 3 discretion to reject or amend a proposed project. Ctr. for Envtl. Law and Policy v. U.S. Bureau 4 of Reclamation, 655 F.3d 1000, 1007 (9th Cir. 2011) (finding that the Bureau of Reclamation’s 5 obtaining permits from Washington State for the potential drawdown of a reservoir before 6 completing an EA did not amount to prejudgment). 7 8 9 Here, relying on the Business Case Analysis, Plaintiffs claim that the Navy could have met its needs by expediting the repair of the EHW-1. See Pl. Mot. at 21 (“If the Navy had chosen to expedite EHW-1 repairs, it would not have needed another EHW”). But the Business 10 Case Analysis never said that. For each of the potential alternatives that involved expediting the 11 12 13 14 15 repairs of EHW-1, the Business Case Analysis indicated that not all of the Navy’s operational requirements could be met. See EHW 37235-42. The FEIS also makes clear that the Navy’s needs could not be met with only the existing EHW because the Navy required 400 operational days per year. EHW 61661. Expediting the pile replacement project would have caused severe 16 short-term operational issues as well. See EHW 97451 (“Replacement of all EHW-1 piles at one 17 time would shut down wharf operations for an extended period of time, preventing the Navy 18 from meeting operational requirements. Thus, this alternative is not operationally feasible and 19 was not considered further.”).14 Accordingly, the Plaintiffs’ theory that the Navy could have met 20 its needs through the expedited repair of EHW-1 alone is factually incorrect, and their 21 predetermination claim relying on the false premise is without merit. 22 IV. 23 The FEIS reasonably defined the Navy’s purpose and need for the proposed EHW-2 and 24 25 THE NAVY APPROPRIATELY STATED THE NEED FOR THE PROJECT AND ANALYZED A REASONABLE RANGE OF ALTERNATIVES considered a reasonable range of alternatives to meet the Navy’s objectives. Plaintiffs’ 26 14 27 28 The Navy recognized that any delay in the pile replacement project would increase the risk of a shutdown of the EHW 1 due to a seismic event. EHW 114399. But replacing all of the piles at once simply was not feasible. EHW 37235-42; EHW 97451. Accordingly, Plaintiffs’ assertion that the Navy could have replaced the piles more quickly and thus decreased the risk of damage due to a seismic event is baseless. See Pl. Mot. at 21-22. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 27 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 36 of 45 1 arguments that the Navy defined its goals in unreasonably narrow terms and failed to consider 2 alternatives that would have met its goals are without merit. See Pl. Mot. at 32-33. 3 A. 4 Plaintiffs argue that the Navy “stated inflexible goals for the project’s location, size and 5 6 7 8 9 The FEIS Reasonably Explains the Need for the EHW-2 capacity” and thus inappropriately limited the range of alternatives that the Navy could consider. Pl. Mot. at 32. To the contrary, the Navy appropriately stated its goals under NEPA. Agencies are afforded “‘considerable discretion to define the purpose and need of a project.’” League of Wilderness Defenders-Blue Mountain Diversity Project v. U.S. Forest Serv., 689 F.3d 1060, 1069 (9th Cir. 2012) (quoting Friends of Southeast’s Future v. Morrison, 153 F.3d 1059, 1066 10 (9th Cir. 1998)); see also Westlands Water Dist. v. U.S. Dep’t of the Interior, 376 F.3d 853, 866 11 12 13 14 15 (9th Cir. 2004). “[A]n agency may not define the objectives of its action in terms so unreasonably narrow that only one alternative from among the environmentally benign ones in the agency’s power would accomplish the goals of the agency’s action . . . .” Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt., 606 F.3d 1058, 1070 (9th Cir. 2010) (citation 16 omitted); see also City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1155 (9th 17 Cir. 1997). The purpose and need statement should “be evaluated under a reasonableness 18 standard.” Friends of Southeast’s Future, 153 F.3d at 1066-67. “The preparation of [an 19 environmental impact statement] necessarily calls for judgment, and that judgment is the 20 agency’s.” Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir. 1974). 21 The Navy’s purpose and need statement was reasonable. The FEIS states: “The purpose 22 of the proposed action is to support future TRIDENT program requirements for the eight 23 TRIDENT submarines currently homeported at the Bangor waterfront and the TRIDENT II (D5) 24 Strategic Weapons System.” EHW 61661. In stating the purpose for the project, the Navy did 25 not unreasonably limit the range of alternatives that could be considered in accomplishing the 26 27 28 Navy’s objectives. See Natural Res. Def. Council, Inc. v. Gutierrez, No. C-07-04771 EDL, 2008 WL 360852, *22-23 (N.D. Cal. Feb. 6, 2008) (finding that the Navy’s purpose and need statement regarding the development of low frequency active sonar to enhance the Navy’s ability DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 28 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 37 of 45 1 to detect submarines was reasonable); see also Westlands Water Dist., 376 F.3d at 868 (“The 2 Statement of Purpose and Need reasonably defined the objectives of the project; the preparers 3 did not arbitrarily or capriciously narrow the scope of the Statement.”); see also Citizens Against 4 Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C. Cir. 1991) (“We uphold an agency’s 5 definition of objectives so long as the objectives that the agency chooses are reasonable . . . .”). 6 7 8 9 The Navy’s statement regarding the need to support future requirements for the TRIDENT submarines homeported at Bangor was abundantly reasonable. Moreover, the FEIS amply explains the need for additional wharf capacity at Bangor. When the EHW-1 was constructed in the 1970s, it was designed to support the needs of the 10 TRIDENT program at the time, which involved handling the TRIDENT I (C4) missile. EHW 11 12 13 14 15 61661. In the 1990s, the Navy upgraded to the larger, more complex TRIDENT II (D5) missiles at Bangor. Id. Due to their size and complexity, TRIDENT II missiles require more maintenance than the TRIDENT I missiles and thus more days of handling at a wharf. EHW 61661-62. In addition, to extend their usable life through 2042, TRIDENT II missiles require 16 updated electronic components and other upgrades, and they will require more frequent and 17 longer periods of maintenance as they get older. EHW 61662-63. Based on these factors and 18 other program requirements, the Navy determined that it would need to have an EHW available 19 at Bangor for approximately 400 operational days per year. EHW 61661-62. Due to the pile 20 replacement project, the EHW-1 currently can only provide approximately 185 operational days 21 per year until that project is completed in 2024. EHW 61662; EHW 61664. Even when it is 22 completed, the EHW-1 would provide only 305 operational days per year. Id. As set forth in the 23 Business Case Analysis, the Navy preliminarily analyzed several options for meeting the need 24 for increased wharf capacity at Bangor and determined that the only feasible option was to 25 construct a second explosives handling wharf. Id.; see also EHW 61707, EHW 62902. The 26 27 Court should “‘give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest.’” Winter, 555 U.S. at 24 28 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 29 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 38 of 45 1 (quoting Goldman v. Weinberger, 475 U.S. 503, 507 (1986)). Accordingly, the Navy has 2 appropriately demonstrated the need for the project.15 3 B. 4 Plaintiffs argue that the Navy did not evaluate a reasonable range of alternatives in the 5 6 7 8 9 The FEIS Evaluates a Reasonable Range of Alternatives FEIS. See Pl. Mot. at 16-19, 33. In particular, they argue that the alternatives considered were too similar to one another and the Navy should have considered other options, such as building the wharf at an alternative site at Bangor, reducing the number of submarines at Bangor, or demolishing the EHW-1 and building a single larger wharf. See id. Plaintiffs’ arguments should be rejected because the alternatives offered by Plaintiffs were considered by the Navy and would 10 not meet the Navy’s needs. 11 The range of alternatives considered in a NEPA review “must be bounded by some 12 13 14 15 notion of feasibility.” Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 551-52 (1978). The alternatives examined in a NEPA analysis are guided by the stated purpose and need: “‘An agency must look at every reasonable alternative, with the range dictated by the 16 nature and scope of the proposed action.’” Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 117 17 F.3d 1520, 1538 (9th Cir. 1997) (citation omitted); see also Trout Unlimited, 509 F.2d at 1286. 18 An agency is not required to analyze alternatives that do not meet the agency’s purpose and 19 need. League of Wilderness Defenders, 689 F.3d at 1071; Barnes v. U.S. Dep’t of Transp., 655 20 F.3d 1124, 1136 (9th Cir. 2011); Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 21 1248 (9th Cir. 2005). “An agency is under no obligation to consider every possible alternative to 22 a proposed action, nor must it consider alternatives that are unlikely to be implemented or those 23 inconsistent with its basic policy objectives.” Seattle Audubon Soc’y v. Moseley, 80 F.3d 1401, 24 1404 (9th Cir. 1996). 25 26 27 28 15 Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt., 606 F.3d 1058 (9th Cir. 2010) is distinguishable because the court faulted the Bureau for giving too much weight to the needs of a private company. See 606 F.3d at 1072. Here, the only objectives at issue are those of the Navy. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 30 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 39 of 45 1 As with other aspects of NEPA, “the ‘rule of reason’ guides both the choice of 2 alternatives as well as the extent to which the [NEPA analysis] must discuss each alternative.” 3 City of Carmel-by-the-Sea, 123 F.3d at 1155; see also Presidio Golf Club v. Nat’l Park Serv., 4 155 F.3d 1153, 1160 (9th Cir. 1998). A party claiming that the agency’s analysis of alternatives 5 in a NEPA analysis is arbitrary and capricious may not simply speculate that the agency should 6 7 8 9 have considered other alternatives. Rather, that party has the burden of offering “specific evidentiary facts” showing that the other alternatives were “reasonable and viable.” City of Angoon v. Hodel, 803 F.2d 1016, 1022 (9th Cir. 1986); see also Friends of the Earth v. Coleman, 513 F.2d 295, 298 (9th Cir. 1975). 10 In the FEIS, the Navy analyzed a range of design alternatives for the EHW-2 that would 11 12 13 14 15 meet the objectives of the Navy’s TRIDENT program at Bangor. See EHW 61691-97. Certain common components, such as a warping wharf, lighting towers, cranes, and an access trestle, were necessary to meet the functional needs of the Navy. See EHW 61679-81. The Navy was not required to analyze in detail alternatives that would not meet its objectives. Native 16 Ecosystems, 428 F.3d at 1248. Therefore, the fact that each of the design alternatives considered 17 by the Navy contained common components, all of which were necessary to meet the Navy’s 18 objectives, does not render the range of alternatives too narrow.16 Plaintiffs have not 19 demonstrated that any other options were feasible. Indeed, the Navy considered and rejected a 20 number of proposed alternatives that would not meet the Navy’s objectives, including the 21 alternatives now offered by Plaintiffs. See EHW 61705-11. 22 First, the Navy considered a proposal to locate the EHW-2 at an alternate location at 23 Bangor to the west of the EHW-1. EHW 61711. This proposal was described in the August 31, 24 2010 memorandum that Plaintiffs point to in their brief. EHW 114772; see also Pl. Mot. at 17- 25 18. The Navy rejected this alternative because it would not meet explosive safety requirements 26 27 28 16 The FEIS stated that each of the alternatives would have similar environmental impacts, but “the magnitude of these impacts would vary among the alternatives.” EHW 61711; see also EHW 61714-27 (Table 2-2, Comparison of Environmental Impacts of Alternatives). Thus, Plaintiffs are incorrect that all alternatives would have “the same impacts.” Pl. Mot. at 33. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 31 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 40 of 45 1 mandated by the DDESB and NOSSA. EHW 61711. Further, given the explosive safety 2 requirements, the Navy determined that the proposed site for EHW-2 is the only location along 3 the Bangor waterfront that ensures that designated restricted areas and required separation 4 distances between facilities will be maintained. EHW 61705. The Navy’s determination that the 5 proposed site is the only location within Bangor that would meet its objectives is entitled to great 6 7 8 9 deference and should be upheld. See Tongass Conservation Soc’y. v. Cheney, 924 F.2d 1137, 1140-42 (D.C. Cir. 1991) (rejecting a challenge to the Navy’s alternatives analysis where the Navy demonstrated that only one site for acoustic testing for submarines was feasible); see also Winter, 555 U.S. at 24 (the Navy’s determinations regarding military needs and objectives are 10 entitled to great deference). 11 12 13 14 15 Second, Plaintiffs claim that the Navy should have analyzed an alternative in which the number of submarines at Bangor was reduced by transferring submarines to King’s Bay. See Pl. Mot. at 18. In the Business Case Analysis, the Navy indicated that relocating SSBNs would not be evaluated because it did not meet the requirements of the U.S. Strategic Command 16 (“STRATCOM”). EHW 37213; EHW 37232. Indeed, STRATCOM’s determination that more 17 SSBN’s should be relocated to the west coast was one of the factors driving the need for the 18 EHW-2 in the first place. See EHW 37213; EHW 37216-17; see also EHW 112324 (8/29/13 19 (“As threats have evolved, more SSBNs have been relocated to the Pacific, resulting in a need 20 for a second EHW at SWFPAC.”). In subsequent briefing documents, the Navy raised the 21 possibility of shifting SSBN’s back to the east coast, but each time it noted that doing so would 22 not meet STRATCOM’s requirements. See, e.g., EHW 75209; EHW 110945 (8/29/13); EHW 23 114393; EHW 115582. The Navy’s determination that eight SSBNs are required on the west 24 coast to meet STRATCOM’s requirements is entitled to great deference. See Winter, 555 U.S. at 25 24. Indeed, there is no subject for which courts owe greater deference to the executive branch 26 27 than the prioritization of national defense objectives and strategies. See id.; Dep't of Navy v. Egan, 484 U.S. 518, 529 (1988). 28 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 32 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 41 of 45 1 Third, the FEIS explains that demolishing the EHW-1 after constructing the EHW-2 is 2 not a viable option because one EHW would not provide sufficient capacity.17 EHW 61711. As 3 explained in the FEIS, one EHW can be available for no more than 305 days per year – the 4 remaining 60 days are needed to conduct maintenance. EHW 61662. Thus, the Navy has amply 5 explained why one wharf alone cannot meet the Navy’s requirements of 400 operational days per 6 year. See id.; see also EHW 65076.18 7 8 9 Accordingly, the Navy considered a reasonable range of alternatives for meeting the objectives stated in the FEIS. 10 THE NAVY COMPLIED WITH NEPA’S REQUIREMENT TO ANALYZE MITIGATION 11 Plaintiffs argue that the discussion of mitigation in the FEIS was inadequate for failure to 12 13 14 15 16 V. analyze the effectiveness of mitigation. Pl. Mot. at 34-35. Plaintiffs’ argument is apparently directed at the discussion of compensatory aquatic mitigation in the FEIS. See id. at 22-23; EHW 62517-72 (FEIS App. F). The Navy developed a compensatory mitigation plan in order to comply with section 404 of the Clean Water Act (“CWA”), 33 U.S.C. § 1344. EHW 62517; see also 40 C.F.R. Pt. 230. As described in the FEIS, the Navy analyzed a number of potential 17 alternatives for meeting the requirements of the CWA regulations, including restoration projects 18 19 20 21 at Dabob Bay and Shine Tidelands State Park. EHW 62530-33. The U.S. Army Corps of Engineers (“Corps”) issued a CWA § 404 permit to the Navy and incorporated an in lieu fee use plan (“ILF Plan”) to meet the compensatory requirements of CWA § 404 and the applicable 22 23 24 25 26 17 Plaintiffs’ assertion that the Navy should have considered demolishing the EHW 1 is at odds with their purported concern with the preservation of the EHW 1 as an historic structure. See Pl. Mot. at 23, 32. Moreover, Plaintiffs are incorrect that the FEIS did not consider the potential effects on the existing wharf. The State Historic Preservation Officer concurred with the Navy’s finding that there would be “no adverse effect” on the EHW 1. See EHW 62183; EHW 71724. 18 27 28 Unlike the cases cited by Plaintiffs, see Pl. Mot. at 33 n.17, the Navy did not “simply dismiss[] out of hand” alternatives to the proposed project. Klamath-Siskiyou Wildland Ctr. v. U.S. Forest Serv., 373 F. Supp. 2d 1069, 1088 (E.D. Cal. 2004). Nor have Plaintiffs demonstrated that there were other viable “alternatives that could have been considered.” Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 746 F. Supp. 2d 1055, 1089 (N.D. Cal. 2009). DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 33 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 42 of 45 1 regulations. EHW 105689; EHW 105702.19 The Navy’s description of the ILF Plan was more 2 than sufficient to meet the Navy’s procedural obligations under NEPA. 3 Pursuant to the applicable NEPA regulations, an agency is required to discuss potential 4 mitigation measures to avoid environmental impacts. See 40 C.F.R. §§ 1502.16, 1508.20. 5 However, the requirement to discuss mitigation measures does not create a “substantive 6 7 8 9 requirement that a complete mitigation plan be actually formulated and adopted.” Robertson, 490 U.S. at 352. Nor does NEPA require that the EIS include “a detailed explanation of specific measures which will be employed to mitigate the adverse impacts of a proposed action.” Id. at 353. An agency should include in its analysis “‘an assessment of whether the proposed 10 mitigation measures can be effective.’” See Pacific Coast Fed’n of Fishermen’s Ass’ns v. Blank, 11 12 13 693 F.3d 1084, 1103 (9th Cir. 2012) (quoting S. Fork Band Council v. U.S. Dep’t of Interior, 588 F.3d 718, 727 (9th Cir. 2009)). The Navy met these requirements. Although the ILF Plan was not finalized until after the 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FEIS was completed, NEPA does not require that a complete final plan be described in an FEIS. See Robertson, 490 U.S. at 352. The FEIS does contain a lengthy discussion of the development of compensatory mitigation and the potential components of the ILF Plan, which would be developed and finalized in coordination with the Corps, the WDOE, the HCCC, other state and local agencies, and tribal entities. See EHW 62522-33; EHW 62555-72. Plaintiffs point to U.S. Environmental Protection Agency (“EPA”), WDOE, and Washington Department of Natural Resources (“WDNR”) letters commenting on the DEIS. See EHW 62821-22; EHW 62857-58; EHW 62867-68. In response to those comments, the Navy explained that it would develop the ILF Plan in coordination with federal, state, local, and tribal entities, which is ultimately what it did. See, e.g., EHW 62821-22. In addition, the Navy included additional information about the 19 The final ILF Plan, executed by the Hood Canal Coordinating Council (“HCCC”), the Corps, and the Washington State Department of Ecology (“WDOE”), is contained in the Corps’ record in the companion case which was voluntarily dismissed, Suquamish Tribe v. U.S. Army Corps of Eng’rs, No. 2:12-cv-1455-RBL. CO 13290; CO 13559. Unlike the Suquamish Tribe, Plaintiffs in this case did not bring a claim challenging the Corps’ CWA § 404 permit. Accordingly, whether the ILF Plan is sufficient as a substantive matter under CWA § 404 is beyond the scope of this lawsuit. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 34 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 43 of 45 1 compensatory aquatic mitigation in the SDEIS (EHW 57102-15), which was circulated again for 2 review, EHW 61669, and a much more extensive discussion is contained in the FEIS (EHW 3 62517-72). Indeed, in its comments on the FEIS, the U.S. EPA stated that the “numerous 4 changes and additions contained within the FEIS are responsive to our NEPA related 5 informational recommendations.” EHW 64638; see also EHW 65097. 6 Moreover, the Navy met the requirement to discuss the potential effectiveness of the 7 compensatory aquatic mitigation. The FEIS contains a detailed analysis of the benefits that 8 would result from the planned restoration projects at Dabob Bay and Shine Tidelands. EHW 9 62533-54. The Ninth Circuit has upheld mitigation analyses that contain far less detail. See 10 Pacific Coast, 693 F.3d at 1103-04 (upholding mitigation for a fishery management plan that 11 consisted primarily of adaptive management measures and program reviews); Okanagon 12 Highlands Alliance v. Williams, 236 F.3d 468, 476-77 (9th Cir. 2000) (upholding the Forest 13 Service’s analysis of mitigation for a gold mine which set forth mitigation measures in general 14 terms). The Navy’s analysis is nothing like those that the Ninth Circuit has found to be deficient. 15 See S. Fork Band Council, 588 F.3d at 727 (finding an analysis of mitigation to be insufficient 16 where the EIS said “[n]othing whatsoever . . . about whether the anticipated harms could be 17 avoided by any of the listed mitigation measures”); Neighbors of Cuddy Mtn. v. U.S. Forest 18 Serv., 137 F.3d 1372, 1381 (9th Cir. 1998) (finding that “broad generalizations and vague 19 references to mitigation measures . . . and their effectiveness” were insufficient to comply with 20 NEPA). Therefore, the Navy fully complied with NEPA’s requirement to analyze mitigation. 21 CONCLUSION 22 For the foregoing reasons, summary judgment should be entered for Defendants. 23 Respectfully submitted this 28th day of October, 2013, 24 ROBERT G. DREHER Acting Assistant Attorney General 25 26 /s/ Luther L. Hajek LUTHER L. HAJEK, D.C. Bar No. 467742 Trial Attorney, Natural Resources Section United States Department of Justice Environment and Natural Resources Division 27 28 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 35 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 44 of 45 999 18th St., South Terrace, Suite 370 Denver, CO 80202 Tel: (303) 844-1376 Fax: (303) 844-1350 E-mail: Luke.Hajek@usdoj.gov 1 2 3 4 PETER DYKEMA Trial Attorney, Natural Resources Section United States Department of Justice Environment and Natural Resources Division Ben Franklin Station, P.O. Box 663 Washington, DC 20044-0663 Tel: (202) 305-0436 Fax: (202) 305-0274 E-mail: Peter.Dykema@usdoj.gov 5 6 7 8 9 10 Attorneys for Defendants 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 36 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376 Case 3:12-cv-05537-RBL Document 99 Filed 10/28/13 Page 45 of 45 1 2 3 4 CERTIFICATE OF SERVICE I hereby certify that on October 28, 2013, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system, which will automatically send email notification to attorneys of record. 5 6 /s/ Luther L. Hajek Luther L. Hajek 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO PLAINTIFFS’ SUMM. J. MOTION NO. 3:12-CV-05537-RBL - 37 - U.S. DEPARTMENT OF JUSTICE 999 18TH ST., SOUTH TERRACE – STE. 370 DENVER, CO 80202 (303) 844-1376