Weinberger v. Catholic Action of Hawaii/Peace Education Project – Oral Argument – October 13, 1981

Media for Weinberger v. Catholic Action of Hawaii/Peace Education Project

Audio Transcription for Opinion Announcement – December 01, 1981 in Weinberger v. Catholic Action of Hawaii/Peace Education Project

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Warren E. Burger:

We will hear arguments first this morning in Weinberger, the Secretary of Defense, against Catholic Action of Hawaii.

Mr. Solicitor General, you may proceed whenever you are ready.

Rex E. Lee:

Mr. Chief Justice, and may it please the Court, this case involves the requirements of the National Environmental Policy Act of 1969, concerning the disclosure of whether nuclear weapons are or are not stored at a particular site.

That substantive information, the storage or non storage of nuclear weapons at a particular site, is a military secret.

In the early 1970’s, in response to the objections of local citizens to the alleged storage of nuclear weapons at the Waikele Branch of the Lualualei Naval Magazine on the island of Oahu, the Navy considered moving that storage facility six miles away to the West Loch Branch of that same Lualualei Naval Magazine.

The Navy has never confirmed nor denied that nuclear weapons were in fact stored at Waikele.

In 1975, the Navy made an assessment of the effect of that transfer on the environment, and in June of 1977 a portion of that classified document was released to the public as an environmental impact assessment, concluding that the construction of the 48 earth covered magazines and associated buildings and the provision of security for those buildings would have no significant environmental impact.

No mention was made of nuclear weapons storage.

In 1978, the Department of the Navy prepared a candidate or generic environmental impact statement dealing with nuclear aspects of Naval systems storage.

That candidate statement–

Solicitor General–

Rex E. Lee:

–Yes?

–“# candidate”, is that a word of art or something?

Rex E. Lee:

It is a type of NEPA performance, Justice Brennan, that is recognized by the Council of Environmental Quality.

It is to be distinguished from the type thing that was done, say, with respect to the Southwest Energy Study, where you take a series, a single prototype that will be repeated in a number of different instances, such as the Southwest Energy Study dealing with dams along the Colorado River.

This one, by contrast, deals with a situation where you have a single circumstance that might be repeated applicable to a generic situation.

It seemed particularly appropriate in this instance, given the secret nature of storage at any particular site.

That candidate statement did conclude, in general… it is set forth as Appendix G to the petition for certiorari… that the nuclear aspects of weapons storage do not constitute an environmental factor per se, but it did not discuss any issues pertaining to nuclear storage at any specific site.

This suit was filed in March of 1978, alleging that the West Loch facility would house nuclear weapons, and seeking to enjoin the Secretary of Defense and various Navy officials from expanding the facility until they complied with NEPA, the Endangered Species Act, and the National Historic Preservation Act.

The District Court concluded that none of those Acts was offended by the proposed transfer.

With regard to both the Historic Preservation Act and the Endangered Species Act, the Court relied on findings that were made in the declassified portion of the 1975 assessment that was released to the public as an environmental impact assessment.

With respect to NEPA, the District Judge concluded that submission of an environmental impact statement would conflict with the security data provisions of the Atomic Energy Act, and also with the security classification guides prepared jointly by the Department of Defense and the Department of Energy.

Under those circumstances, the District Court ruled that defendants have complied with the National Environmental Policy Act to the fullest extent possible within the restrictions of the security classification guides and the Atomic Energy Act.

The Court of Appeals reversed.

It directed the Navy to prepare a “hypothetical environmental impact statement” which would assess the potential consequences of storage of nuclear weapons at this particular site.

It is that judgment of the Court of Appeals that is under review today.

The issues in this case affect two statutes and three policies.

The primary statute and the primary policy are those of NEPA, which requires Federal decision makers to take environmental factors into account in making their final judgments.

The second NEPA objective, which is arguably a separate one, but can also be regarded as totally subsumed within the first, is to make certain kinds of information available to the public for whatever purpose the public wishes to make of it.

Both of these objectives contemplate disclosure.

Are you saying NEPA is much like FOIA in the second regard, then?

Rex E. Lee:

Yes.

Indeed, Justice Rehnquist, NEPA expressly ties into FOIA by its incorporation of that document by reference, and the public disclosure provisions, the public disclosure language simply says, disclosure to the public as required by 5 USC, and so forth, which is the Freedom of Information Act.

On the face of things, the policy of the Atomic Energy Act, by contrast, and of other classification laws, is the preservation of secrecy of information concerning nuclear weapons, so that on its face you do have a potential tension, and it is well settled law that where you have tension between the National Environmental Policy Act and another statute, that it is NEPA that must yield.

But it is the government’s position in this case that these statutes and their facially conflicting policies can be largely accommodated to a greater extent than is true in the case of conflict between the National Environmental Policy and most other statutes.

The key to this accommodation is the regulations that have been adopted by the Department of Defense that concede… or, I shouldn’t say concede, but take the position that regardless of whether they would be required to have adopted such regulations or not, that the Department of Defense regards NEPA as applicable to all of its activities, including secret activities, with the appropriate secrecy protection being provided by classification applicable to the NEPA documents themselves.

This case does have one feature that complicates it and that will not be present in most of these instances where NEPA will be applicable because of the Department of Defense regulations to classified activities of the military, and the feature of this case that distinguishes it is this.

The secret is whether nuclear weapons are or are not being stored at a specific site.

Therefore, one of the things that cannot be disclosed is whether environmental considerations pertaining to nuclear storage at that site have or have not been considered by the decision makers, because to reveal that fact would reveal the secret itself.

I suppose, Mr. Solicitor General, or I will put it this way: What would be the consequence if the hypothetical was, yes, we are storing nuclear weapons of the highest power at this site, hypothetically?

Rex E. Lee:

Yes, sir.

Would the inference be drawn from that, then, then you musn’t do it?

Rex E. Lee:

I think that the basic approach that the Court of Appeals attempted was a middle ground, and the attempt of the Court of Appeals was to say, well, assume that they might be stored there; then what would be the consequences?

The drawbacks of that are that inevitably that does lead to the disclosure of other information that is classified.

You sacrifice, Mr. Chief Justice, either the adequacy of the statement, or you sacrifice the information, because if you are going to have a statement which really calls to the attention of the decision makers what the real risks are here, you have to discuss things like, what kind of weapons will they be, what is their potential, and if there are to be environmental consequences, that depends on such things as the amount of fissionable material, the quality of the material, the security… the safeguards, the security, and so forth.

Much better approach.

Wouldn’t it be a military secret that a particular facility was capable of storage?

Rex E. Lee:

That is not a secret.

The reason that it is not a secret is because the type of fencing that necessarily surrounds, necessarily accompanies a nuclear capable facility simply cannot be disguised.

But nuclear capability is not a secret; storage at a particular facility is.

That brings me to what I consider to be the principle that governs the resolution of this case, and it is a rather simple one.

The key, as I say, is the existence of this Department of Defense regulation.

If there is in fact no nuclear storage at West Loch, then the fears posited by the Respondents are, of course, groundless.

If, on the other hand, West Loch is or is to be a nuclear storage facility, then consistent with Department of Defense regulations, the environmental consequences have been called to the attention of the decision maker, and they have been taken into account by them.

The only problem is that that fact, whether or not the appropriate NEPA document has been prepared and has been called to the attention of the decision makers, is the very fact that cannot be disclosed.

Mr. Lee, would it be the government’s position, then, under the Department of Defense regulations, that if indeed storage at a particular site were contemplated, that the Department of Defense would have prepared a specific environmental impact statement which would have been given to the President and the Council on Environmental Quality?

Rex E. Lee:

No.

No.

Rex E. Lee:

Because that would contemplate public disclosure, and that is the part that must… that must yield, Justice O’Connor.

All right.

Now, under the Freedom of Information Act, the information would not be available to the public, but how about to the Council on Environmental Quality?

Rex E. Lee:

Well, I really am not certain.

The public disclosure aspects of it, the public disclosure aspects of it are limited by the same limitation as the Freedom of Information Act.

It is not simply that you can’t disclose it through Freedom of Information Act purposes.

It is that disclosure to the public has the same limitation as does disclosure under the Freedom of information Act, and it is my understanding that the purposes of filing it with the Council on Environmental Quality is for purposes of public disclosure, but what does happen… excuse me.

I was not sure how to interpret that, and that is why I wanted your views.

Rex E. Lee:

Yes.

But what does happen… what does happen is that that classified document, whose very existence must necessarily remain a secret, is made available to the decision makers who… those who are ultimately to decide whether or not there will be nuclear storage at the West Loch facility or any other specific–

It is not your position that the generic statement which was prepared would satisfy the requirements.

Is that correct?

Rex E. Lee:

–I am not enough of an expert on those kinds of matters to know whether it would satisfy it or not, but that question once again, I think, contains the key to the solution of this case for that reason.

I can make an argument that that generic statement, concluding, as it does, that there are no substantial risks from nuclear storage per se, together with the environmental impact assessment that was done pertaining to this particular facility, would be sufficient, but it is neither my background nor my training to know about the sufficiency of the totality of environmental document performance.

But those who are directing these kinds of matters, whose stewardship those kinds of matters fall within, do have that within their sphere of expertise, and in the event that the conclusion… that there is a conclusion that these are not sufficient, then the regulations require that additional documents be prepared and filed.

And NEPA really requires no more, and this, I think, is a crucial point.

With regard to environmental considerations being taken into effect, they are, the regulations required, and with respect to public disclosure, NEPA expressly exempts from public dissemination, through its incorporation by reference of the public disclosure provisions of the Freedom of Information Act, the dissemination of classified information.

Really, this also answers the motivating concerns of the Court of Appeals.

The Court of Appeals’ very proper concern, which led to what we conclude was clearly an improper kind of approach, was that the public has to receive some assurance that when the decision is made, the decision maker will have been adequately informed as to the environmental consequences of each alternative, and the Department of Defense regulations give that assurance.

The Respondents contend that there is no difference between asking the hypothetical question, well, what would be the possible environmental consequences if a freeway exchange were built in a particular location, and a hypothetical which asks, what would be the possible environmental consequences if nuclear capable storage bunkers were built in a particular location.

Well, the question whether nuclear capable storage bunkers are built is not the question that poses the issue.

It is whether in fact those nuclear capable facilities do have nuclear warheads stored within them, but the real difference–

Mr. Solicitor General–

Rex E. Lee:

–Yes, sir.

–is that really precisely the question, or is it a question of whether it has been proposed that there be such storage?

Rex E. Lee:

I think it is either.

I think–

Well, is there not a duty to prepare the statement when a proposal is made?

Rex E. Lee:

–Yes, I think my statement was inaccurate.

There is a duty, but the point is that the Department of Defense regulations simply state that to whatever extent NEPA is applicable, it is not rendered inapplicable because of the presence of classified information, of secrets.

The obvious difference between a hypothetical discussion of what would happen if nuclear weapons were stored in a particular site and what would happen if a highway were built in a particular place is that whether a highway does or does not exist in a particular location is not a military secret.

It may well be that the real complaint, and a complaint raised in a different form, a perfectly legitimate one, is whether that kind of information really should be secret or not.

Rex E. Lee:

I am sure that lively debate could be generated on that issue, but it is totally beside the point, because the ultimate right of decision on that issue is vested with those who have the responsibility over the safeguarding of nuclear secrets, and those same people have assured that NEPA applies even where classified information is involved.

One means of safeguarding, preventing intrusion into governmental secrets in lawsuits that by their nature present the potential for intrusion into military secrets, is for the courts simply not to entertain those lawsuits at all, and there is a precedent coming out of this Court that holds that such suits are not justiciable.

It is a century old, Totten versus the United States, dealing with a suit by a spy allegedly hired by President Lincoln to spy during the Civil War, and this Court held that that kind of suit is not justiciable, the rationale being that public policy forbids the maintenance of any suit the trial of which would inevitably lead to disclosure of matters which the law itself regards as confidential.

Totten is still good law.

It was cited with approval in United States versus Reynolds, and it has been relied upon as the source of two holdings coming out of the Court of Claims within just recent months, and it would be dispositive of this case.

Fortunately, however, the Court need not resolve this case on the Totten ground, and the reason, once again, is that the Department of Defense regulations make available another procedure that permits this information to remain secret.

I will reserve some time.

Mr. Lee–

Rex E. Lee:

Oh, excuse me.

–before you sit down, the Trial Court found the placing of nuclear weapons near a major population center to be a major Federal action for purposes of NEPA.

Does the government disagree with that?

Rex E. Lee:

The government takes no position on that, Justice O’Connor.

You are quite right.

And the reason that we take no position on it is simply that if… if the District Court is correct, then of course what that means is that an environmental impact statement, as opposed to an environmental impact assessment, is what is required.

Parenthetically, I will say once again, referring back to Justice Brennan’s earlier question, this is also… an environmental impact assessment is also a document that is recognized as appropriate by CEQ.

The difference between an environmental impact assessment and an environmental impact statement is not always a clean, right one, but that is one of the factors that will have to be taken into account in… in determining the extent of the document that is to be prepared and filed in accordance with Department of Defense regulations.

Before you sit down, I am puzzled now.

If the government takes no position on whether or not the storage of nuclear weapons in this facility would be a major Federal action, how can we know what the government’s position would be with respect to preparation of documents if a proposal to store such weapons were made?

Rex E. Lee:

Well, we have not appealed from that aspect of… of the District Judge’s holding, and all I am really saying is that if it is a major Federal action, that it is an environmental impact statement that will have to be filed.

If it is not, then it is an environmental impact assessment that will have to be filed.

Well, but isn’t that conceivably an issue on which reasonable men could differ?

Rex E. Lee:

That is correct.

Well, then, and supposing judges have a different view than the Department of Defense has?

And then there is just no reason to believe that a statement would in fact be prepared.

Rex E. Lee:

Well, ‘here–

I mean, if the Department of Defense has a different view than the District Judge has.

Rex E. Lee:

–That is correct.

Your statement is accurate, Justice Stevens.

There is no reason to believe that a document that would bear the label, environmental impact statement, would be prepared.

In fact, the difference between those two as often, as I say, not a fine, bright one, and your question does point out one of the… one of the problems with this kind of approach, which is that there will be instances, there will be instances in which the public will not have the total information that was available to the decision makers as they made their final judgment on these issues.

Well, no, I am not concerned about, at this point… the thrust of my question is not what becomes public information, but rather what is known to the decision maker at the time he acts on a proposal, because if it is the view of the Department of Defense that the storage of nuclear weapons near a population center or in this particular facility is not in any event a major Federal action within the meaning of the statute, they have no duty to prepare anything, no statutory duty to prepare anything.

Well, they have regulations, though.

Rex E. Lee:

Well, they have regulations, and I would assume… I frankly have never asked that question of these people, but from the fact that there was in 1975 a document as to whose total content we are not aware, that was prepared and submitted, and then a portion of it later was released as an environmental impact assessment.

Certainly, the inference is not only there, it is compelled that some kind of NEPA performance was required, and I suppose that the most logical inference to be drawn from that is that they did consider it to be major Federal action, although I don’t know that for a certainty.

Don’t the regulations require–

Rex E. Lee:

Well, what the regulations require, what the regulations require is compliance with NEPA.

Now, one of the… But NEPA can be complied with by preparing a document whose purpose is to inquire whether the particular action is major Federal action having a substantial effect on the environment, and in the event that the conclusion is no, that it is not, then it is labeled an environmental impact assessment.

–Well, in this particular case, if you didn’t appeal the finding of a major Federal action, then we must judge this case on the ground that it is a major Federal action, and so must the Department of Defense comport itself.

It is bound by the judgment, and so it must have… you are submitting that… you say, assuming this is a major Federal action, all of the requirements of NEPA have been satisfied.

Rex E. Lee:

I think that is a correct statement.

Well, then, you have really changed your position a little bit.

Rex E. Lee:

Well–

Because you originally said, the United States takes no position on whether it is major Federal action.

Now I think you are saying that the District Court has held it is major Federal action, and that is a correct view of the law.

Rex E. Lee:

–I think that is right.

In this case.

Rex E. Lee:

Well, it has to be.

It has to be, because we haven’t… we haven’t appealed from it.

Warren E. Burger:

Ms. Stearns?

Nancy Stearns:

Mr. Chief Justice, and may it please the Court, the question before this Court can be simply put: Is it lawful under the National Environmental Policy Act for the Navy to propose to build nuclear capable weapons storage bunkers in close proximity to three airports without ever examining the various possible consequences of that proposed action, particularly where one such consequence could be an airplane crash which could lead to an accidental explosion which would render downtown Honolulu or its fast growing suburbs uninhabitable?

The question is not, as Petitioners have suggested, either whether or not nuclear weapons are presently in the West Loch bunkers; it is also not, as Petitioners have also suggested, whether or not NEPA requires revelation of military secrets in a publicly available EIS.

Recently in their reply brief, and again here today, the Petitioners have suggested something else, which is that they have in fact complied with NEPA.

I think that it would be useful to rid ourselves of that possibility from the very beginning.

Petitioner’s own environmental impact assessment, which did not discuss the possibility of nuclear weapons being stored at West Loch, but considered questions relating to the storage of conventional weapons, itself concluded, and I quote,

“It is concluded that the project will have no significant effect on the environment, and will not be environmentally controversial. “

“Preparation of a candidate environmental impact statement. “

–excuse me… yes,

“preparation of a candidate environmental impact statement is therefore not considered required. “

At the trial of this case, several of their witnesses reiterated that this was not major Federal action, it was not environmentally controversial, therefore the EIA was all that was necessary.

Their own classification–

Ms. Stearns, may I interrupt?

I want to be sure I understand precisely what you are saying.

They said, it is not environmentally controversial.

By that do you mean the construction of the facility as described in the papers, or the storage of nuclear weapons?

Nancy Stearns:

–They do not specifically discuss the storage of nuclear weapons in this document, in the environmental impact assessment.

That is one of our concerns.

But would you agree that their testimony would be entirely accurate if they have no intention whatsoever of ever storing nuclear weapons there?

Nancy Stearns:

Your Honor, I can only agree with the Court of Appeals, which said that as long as they are building nuclear capable bunkers, one must assume that one day they might in fact be storing nuclear weapons there.

Therefore, the question that triggers the environmental impact statement process is the proposal to build a bunker which is nuclear capable, and that, of course, as Petitioners have conceded, is not a question which is classified or secret in any manner.

In the Court of Appeals, the government–

I am not sure you have answered my question.

Nancy Stearns:

–If they–

What is your view if there never is an intention or never was an intention to actually store nuclear weapons there?

Would they have prepared and filed all the necessary documents?

Nancy Stearns:

–If… if one could be absolutely assured–

You are absolutely positive, for the purpose of my question.

Nancy Stearns:

–They very well might have.

I have not examined those documents for their adequacy with respect to merely conventional weapons.

In any event, you don’t challenge them on that hypothesis.

Nancy Stearns:

Pardon me?

In any event, you don’t challenge the sufficiency of their documents on the hypothesis that they never intend to store nuclear weapons there.

Nancy Stearns:

I don’t challenge the hypothesis if in fact they never were going to ever even consider putting nuclear weapons in that.

However–

They will never propose it.

The proposal is what triggers the statute.

Nancy Stearns:

–And the proposal is to build a nuclear capable bunker, therefore, by definition, I don’t think we can possibly assume that they would never consider using nuclear weapons in those bunkers.

Well, my question is, assuming they have decided that they are purely a decoy, they are never going to put actual nuclear weapons there, then do you question the adequacy of the documents on that hypothesis?

Nancy Stearns:

Then I think we would have to be remanded for trial to determine whether these were capable, whether they were adequate for a non nuclear facility.

That has never been examined in this record, Your Honor.

I think we must also say now, however, that although the Petitioners will not confirm nor deny the presence of nuclear weapons, either in West Loch or in Waikele, the place from which they were planning to move the nuclear weapons, we must recognize that there are photographs in this record of Waikele and of nuclear weapons in Waikele, that there are all of the indicia at West Loch of nuclear weapons, and there were indicia at Waikele of nuclear weapons.

Nancy Stearns:

So, I think that we must go with the court below and say that as long as those bunkers are nuclear capable, we must in fact assume that one day nuclear weapons may be put in those bunkers.

It is our position that it will be sooner and not later, but–

Is the Navy obliged to tell you every place they have nuclear weapons?

Nancy Stearns:

–Justice Marshall, I think what we are saying–

If so, then Russia will save a whole lot of money.

I mean, spy money.

Nancy Stearns:

–Well, more than likely Russia, with their satellites, just like we with our satellites, already knows where our nuclear weapons are.

Well, maybe you know.

I don’t.

Nancy Stearns:

Pardon me?

I said, maybe you know.

I don’t.

Nancy Stearns:

No–

But I still want to know as to whether or not it is your position that the Navy has to tell you that there are nuclear weapons there.

Nancy Stearns:

–It is our position that whenever they build nuclear capable bunkers, they must in fact prepare an impact statement.

Now, that does not necessarily mean that every storage facility that has existed for many, many years has to have an impact statement done now.

Do I understand you to say you can’t store conventional weapons in a nuclear bunker?

Nancy Stearns:

That is a question which was never explored in this record.

It is not altogether clear to me that you can in fact.

It would be very interesting to me.

I think you could store trucks in there.

Nancy Stearns:

Well, Your Honor, there is a difference between storing trucks–

Beds.

Kitchen material.

You can store anything in a bunker.

Nancy Stearns:

–However, it is… we do have an affidavit that was submitted to the Court of Appeals and was not in the Trial Court record which raises the question of whether you cannot in fact store nuclear… excuse me, conventional weapons in a xx clear capable bunker, because of the proximity between the various bunkers, and the quantity of conventional explosives, but as I say, and that it might possibly be more dangerous to store conventional weapons close together as these bunkers are placed than nuclear weapons.

But could we have a nuclear bunker with nothing in it, with air?

Nancy Stearns:

We could presumably have a nuclear bunker with nothing in it.

However, just as, to take the government’s–

I think you really want the Navy to tell you where their bunkers are.

Nancy Stearns:

–No.

That you think as a citizen you have that right.

Nancy Stearns:

Justice Marshal, it is not that we want them to tell us where the bunkers are.

We have a case before us.

We know there are bunkers here.

We want to make sure that… well, we would have liked them prior to building those bunkers, but that is too late, now.

We want to make sure that before they store a single nuclear weapon in those bunkers, they do all of the processes mandated under NEPA to ensure that they will not be in danger of having the kind of accident that could spread deadly plutonium across the island of Oahu and make Honolulu uninhabitable, make the suburbs uninhabitable, cause countless numbers of cancer deaths over a period of years.

That is what we want to be sure, and we can’t be sure at this point that they have taken those factors into consideration.

Ms. Stearns, may I ask, the words “capability” and “capable” have been used quite a bit.

Is there any definition of a bunker that has the capacity or capability of accommodating nuclear weapons?

Nancy Stearns:

That has not been defined specifically in this record.

Presumably in the District Court it was just assumed that when the government was using the word “nuclear capable” as it appears in their classification guides, that it merely meant that one could store nuclear weapons there, and presumably there are some different factors that have to be taken into account when building a bunker that stores nuclear weapons.

As I say, that was not explored.

Nuclear weapons certainly are not fungible.

I would assume that there must be a wide variety of storage facilities.

I wonder also whether we are talking about just a few bases or hundreds of bases.

I assume airplanes with nuclear weapons aboard fly in and out of air bases all over the United States from time to time.

Submarines with nuclear weapons come into ports.

Are the weapons stored there?

I haven’t read the record, but I was wondering whether the record indicates the magnitude of this problem, and whether or not one knows whether a particular bunker will accommodate a small nuclear weapon that a fighter plane could carry, or whether we are talking about some permanent storage of a significant volume of these weapons.

Nancy Stearns:

This case is talking about the permanent storage of a significant quantity, because a significant number of bunkers were in fact built for storage.

The record does not indicate how many such permanent storage facilities exist throughout the country.

That was never raised by either party in the District Court.

There have been explorations by private parties, but it was never a factor that was discussed in this… in this Court, because the way in which the case was litigated at the District Court level was really closer to the pure question of whether or not the Atomic Energy Act bars preparing an EIS because of whether or not it would necessitate confirming or denying the presence of nuclear weapons.

Ms. Stearns, what if the government had filed an EIS saying, yes, we do plan to store nuclear weapons here, and they are of such and such magnitude, and fully describe them?

Would that have prevented them from going ahead with the action?

Nancy Stearns:

Prevented them from putting the nuclear weapons in there?

Yes.

Nancy Stearns:

Well, technically, NEPA is a procedural statute, of course.

Right.

Nancy Stearns:

So that the conclusion that they would come to, even assuming they concluded it was a bad idea, there might be processes through the Administrative Procedures Act to challenge that.

Of course, the other questions that still remain in this case, and ones that the Court of Appeals remanded, were consideration of that EIS in relationship to the National Historic Preservation Act and the Endangered Species Act, so that it is possible that there might be a conclusion that the Navy was putting the weapons into those bunkers in violation of one of those two other statutes.

But of course that is not the question here since we don’t have an environmental impact statement at all.

With respect to that point, I might only say that in the Court of Appeals, the Navy did suggest that they had met the requirements of NEPA by having prepared this environmental impact assessment, which really only discusses considerations relating to conventional weapons, for example, explosive safety zones and such, and by doing their candidate environmental impact statement, which is a very superficial, general discussion of questions relating to the storage of nuclear weapons, but the Court of Appeals specifically ruled that that EIA, the environmental impact assessment, and the CEIS, the candidate environmental impact statement, were not adequate to meet the requirements of NEPA.

I might only point out one of the features of the candidate environmental impact statement, which was supposedly the general examination of the question.

In that statement, they made the assertion that plutonium, which, of course, we know is one of the most deadly substances, would not be harmful if it was kept outside of the body.

However, they did not explore how one in fact could keep it out of the body, how an entire population could keep from breathing it in if there were an airplane crash that created a fire and explosion and plutonium dispersed throughout the island.

Ms. Stearns, which is the more informative, the candidate or the assessment?

Nancy Stearns:

With respect to questions regarding storage of nuclear weapons, the candidate, but it has such major defects that I feel I must say that that is not very informative, either.

I gather the defects that you are pointing out would not appear in a statement itself.

Is that it?

Nancy Stearns:

One would hope they would not.

No.

A statement would have to look into some of these features specifically, and the statement would have to deal with the one thing neither of these documents dealt with, which is the question of storing nuclear weapons right near major airports.

This weapon facility, remember, is one mile from a flight path to the Honolulu International Airport.

That airport alone, forgetting for a moment that there are two military airports in that vicinity, that airport alone several years ago had a quarter of a million takeoffs and landings a year.

That is a great number of planes.

That is all the planes coming to and from the mainland, all the planes going to the Far East, and they are right within a mile of that flight path, and lest we think that, well, no accident will ever happen, we must remember that two serious accidents have occurred with military planes that crashed unmanned, where the pilots had to evacuate, right into the Pearl Harbor area, very near that–

But if you stored one in Death Valley, where the little fish is that the Chief Justice’s opinion wrote about, you might endanger only the little fish under the Historic Preservation Act, or the Endangered Species Act, and nonetheless be just as much in violation of the NEPA provisions as if you were talking about a major airport and a major flight route.

Nancy Stearns:

–I suppose technically you would.

Of course, here we don’t have the EIS, and what we are hoping is that when the EIS examines the question, if there is a conclusion that it is too dangerous, then in fact the Navy will decide not to store nuclear weapons there.

Up until now they have not, and it would not be necessary to do so.

They could find an alternative location.

If it were concluded, after full examination and sharing that information with the other appropriate governmental bodies, that it were a bad decision, that it were too dangerous, that decision, of course, need not take place.

Does it appear in this record whether or not nuclear bombs can be ignited or triggered by any kind of impact?

Nancy Stearns:

There is not specific proof they can be.

It is not clear under what circumstances there would be a nuclear detonation.

We do have substantial information in the record about the effects of a nuclear detonation, which would be catastrophic.

Well, that isn’t my question.

That isn’t my question.

Is your answer no, it does not appear in the record?

Nancy Stearns:

It is not… it is not definitive.

However, we do have information in the record about what might happen if the plane crashed into a weapons bunker, which I think is the more realistic danger, and which is horrible enough.

The Livermore Lab did a study which indicated that if a plane crashed into a storage bunker, that you could have an explosion and fire that would lead to a dispersal of plutonium.

Well, that is a different question.

You have said that if you were talking about this bunker as just a non nuclear storage, that the adequacy of the statement here has not been tried out, and you would have to have a remand.

My question to you is, does the record sustain one way or another whether an airplane crash crashing into this bunker could detonate a nuclear bomb.

Nancy Stearns:

It doesn’t make that definitive, but the other problem… there are two possible dangers with nuclear explosives in a bunker.

One is an actual full blown nuclear detonation, a mushroom cloud, what we all think of as a nuclear detonation.

The other, and exceedingly serious, is merely the conventional explosion leading to the dispersal of plutonium which is kept with that or in that weapon.

That plutonium would not be there if only conventional weapons were present, and it is the dispersal of plutonium alone that could render, according to the Livermore Labs, 100 square miles uninhabitable.

That is a great deal, and that could not happen if it were only conventional weapons.

But Ms. Stearns, all this… I suppose it is possible that one could believe that if the magazine blows up, the entire island will be demolished.

Nevertheless, if the Navy prepares the right documents, they could still store the stuff there.

They could decide that is a risk worth taking.

We are not really interested in that.

We are just interested in what they must prepare and file.

Nancy Stearns:

That is correct.

That is absolutely correct.

I mean, I do not want to say definitively that they could in fact go on and store them, because I think there might be other procedural routes.

Well, there is nothing in this statute to prevent them from doing so.

Nancy Stearns:

That is correct.

They could say there is one chance in 1,642,000 and so forth that the thing will blow up, and if it does blow up, the whole island goes.

They could still store the stuff there.

Nancy Stearns:

That is correct, Your Honor.

Under NEPA, it would not stop them.

There are other statutes.

There may be other remedies.

But of course that is not the question here, because it is our position that they have not done the–

No, the real question here is whether the statute has been triggered by a proposal.

Nancy Stearns:

–That’s correct.

And you say just building the facility is a sufficient proposal.

They don’t have to propose actually to store the material there.

Nancy Stearns:

That’s correct.

That merely proposing to build a nuclear capable bunker is what triggers the statute.

That is a major Federal action.

That, of course, is what the District Court found.

The Court of Appeals certainly reiterated that, and as this Court has stated, when NEPA is in consideration, one is supposed to go through the process at the earliest possible stage.

They should not be spending millions and millions of dollars constructing bunkers if there is no intention, no desire, no possibility of using them.

The bunkers are here now.

But we do need an EIS, and it is our position that it has not been done, and this belated hint does not make it so.

Ms. Stearns, if this Court were to determine that even the existence of a classified environmental impact statement has to be kept secret by virtue of the other legislation, then what relief would you propose?

Nancy Stearns:

There are several possibilities.

One would be, of course, what can be done in other cases where there are classified information, and that is, it could be examined in a court in camera to determine, first of all, whether or not everything had to be classified, and second of all, whether it was adequately prepared.

This Court has, of course, dealt with questions before dealing with classified information.

However, it is our position that not all of it need be classified, that the reference to the Totten case is an inappropriate reference, because there–

Yes, but I want to press you a little bit as to what you are specifically proposing in the event the Court should determine that even the existence of the EIS has to be kept secret.

Nancy Stearns:

–Well, I would suggest two possibilities.

First, I would suggest, if there is… either if it has been ordered or if it is exists and it is classified, that it be remanded to the Trial Court and that there be an examination made in a similar fashion to other classified cases where perhaps the attorneys be given security clearances and be able to litigate before the Court whether or not it is an adequate EIS and whether or not in fact everything in that EIS need in fact be classified, because there is significant unclassified information, clearly unclassified information that can be considered publicly.

For example, merely the kind of an arc that one can draw around an airport to determine the likelihood of a crash in a particular area.

In our record, it indicates that both the state and the city governments in Honolulu and Hawaii feel that such an arc should be drawn, but it has never been drawn.

So, we don’t know the likelihood of a crash.

That is clearly not classified.

Additionally, the government is trying to suggest whether they have even done one is classified.

Well, of course, as we have already stated, the question of whether a bunker is nuclear capable is not classified.

Therefore, it need not be classified whether they have done one.

Therefore, what we have should be a document which might be partially classified and partially declassified.

The classified portions are in classified annexes, just as the Navy’s regulations suggest.

And, of course, now is premature to determine which points should be classified and which declassified, but such questions, as I said, as the likelihood of an airplane crash, general discussion of plutonium dispersal, which has on previous occasions been studied by scientists, those factors can be considered and discussed in a public EIS.

Let me finally, however, just refer to the Atomic Energy Act question which has been raised by the government, because we feel that, too, is a spurious question.

Nancy Stearns:

The Petitioners have said that they can neither confirm nor deny the presence of nuclear weapons specifically because of the Atomic Energy Act, and that that prohibits it.

That is not true.

It may once have been true.

That may have once been restricted data under the Act.

However, it is now, according to their own classification guides, what they call formally restricted data.

What that means is, it is releasable not under the stringent requirements of the Atomic Energy Act, which require two department heads to concur or the President to say that it will not cause an unusual risk.

Rather, it can be released to the public, declassified, merely by one agency head or a designee of the agency, and under the Executive Order they specifically say that even when there are occasions that information is properly classified, that the public interest may be paramount and may say that it is appropriate to declassify this information, and therefore, of course, it would be critical that if and when an EIS is prepared, that those standards be applied, and there not be an overclassification of material and overuse of the term NEPA case.

When the government in their reply brief tried to suggest that this formally restricted data, this question of presence or absence of nuclear weapons, is still governed by the Atomic Energy Act, they referred to, I believe it was Section 2162(D) of the Act, which says that so long as the information remains restricted data, it can only be given to another nation, if you go through the procedures of the Atomic Energy Act.

That is true, but that has nothing to do with whether or not it can be declassified and, as I said, under the Executive Order, which does apply once it is formally restricted data, it can be declassified under the standards of the Executive Order, and of course, then that means the Federal Courts can examine, just as they do under the FOIA, that… whether or not that classification has been overused.

Therefore–

Do you think, counsel, that litigants such as the litigant you represent could bring a lawsuit and have the courts tell the Navy to designate and reveal all the ports of the United States into which submarines carrying nuclear weapons come for supplies or come for any other purpose?

Nancy Stearns:

–The first question–

The assumption there is that a submarine bearing nuclear weapons coming into the port of New York or San Francisco would produce a comparable risk that you raise here.

Nancy Stearns:

–Chief Justice Burger, the operative question under those circumstances would be whether or not the submarine coming into the port or the ship coming into the port itself constituted major Federal action.

We had an entire record to show that storage of nuclear weapons, particularly at this site, was.

I do not know whether merely coming to a port would constitute major Federal action.

I think that–

Well, what kind of action would it be?

Who controls the submarines and the aircraft which carry nuclear weapons?

Nancy Stearns:

–Oh, it is certainly Federal action, but the question is, under the mandates of NEPA, does it fit within the concept of major Federal action with a significant effect on the environment.

That is what I am saying I would have to examine much more closely than I have.

That has not been something I have considered.

And it is this whole term which has a gloss to it of major Federal action with a significant effect on the environment or environmentally controversial that is what the court below and the District Court both felt triggered the EIS process.

What if the government planned to build a brand new slip which would accommodate a nuclear submarine, but which could accommodate other Naval vessels, too?

Would that be major Federal action?

Nancy Stearns:

Again, I think that that would have to be studied, because it is not just whether a particular nuclear weapon slips in and out of the port.

It really is what all of the surrounding circumstances are, I think.

I don’t think the very existence of a particular weapon anywhere is necessarily a major Federal action, because that would presumably mean that every time you loaded up a B-52 and did a trial run across the United States, assuming they are still carrying bombs on their trial runs, that it would be major Federal action.

I think that is unlikely.

There may be a substantial difference between building a new slip and building an entire storage facility, particularly a storage facility located, as ours is, in such a precarious position.

Nancy Stearns:

It is not clear to me that it would necessarily be a major Federal action.

I am not sure why not, though, because it seems to me that the transportation of huge quantities of nuclear weapons might be more hazardous than their storage in one place.

Nancy Stearns:

Well, it certainly might be in some places.

I would think that it might very well be if you have… for example, if you have this new slip coming in right next to an airport runway.

I think that probably would, because the notion is the significant effect on the environment if there were a possibility of an accident.

Most of your harbors are near large population centers, and most of your big airports are, too.

You keep talking about airplane crashes.

What about beside some of the highways I have driven on?

There are many more accidents than airplane accidents.

Nancy Stearns:

I don’t want to condone the spots that the Navy or the Air Force or the Army has chosen.

Well that is what worries me about this.

You say you can predict how many airplanes are going to crash.

Nancy Stearns:

We can’t predict how many airplanes are–

I didn’t think you could.

Nancy Stearns:

–No, but what we can do, and it has been done for other airports in Hawaii, is draw an arc which will consider the likelihood of an airplane crash.

Similarly, in… when we are now building nuclear facilities, nuclear energy facilities, we have to consider certain factors, and in fact, as the amicus brief pointed out of the National–

You mean, when the Navy wants to decide where they are going to put their weapons, they have to draw arcs to find out how many airplanes have crashed?

Nancy Stearns:

–I think it would probably be a good idea, and I think NEPA mandates that.

You do?

Nancy Stearns:

Yes, I do.

I am glad you don’t handle the war.

Nancy Stearns:

Well, this, of course, is not a wartime question.

What is it?

Nancy Stearns:

This is a question of what they are going to do with the weapons in the United States, adjacent to American citizens.

It is not a question of what will happen when there is a war and when we are in that war.

It merely says that when this sort of decision is raised of storing nuclear weapons in close proximity to a major population and near a major airport, three airports, in fact, that NEPA mandates preparation of an EIS.

Thank you very much.

Mr. Solicitor General, before you commence, this has been discussed before, but I am not clear on it.

The District Judge found that the storage facilities in question are capable of accommodating nuclear weapons.

Does the government regard that as secret information?

Rex E. Lee:

No, sir, it does not.

That is not?

Rex E. Lee:

That is not.

It could not be kept–

My question really gets back as to what the government proposes to do–

Rex E. Lee:

–That’s right.

–With respect to putting weapons in or not.

Rex E. Lee:

That is correct, and the distinction between the proposal to build those that are nuclear capable, that can’t be kept a secret because of the fences, and how it in fact proposes to use them.

Does the record in this case show how many places, locations in the United States are capable of storing nuclear weapons?

Rex E. Lee:

The record does not show that.

And may I just add one brief point that will, I hope, clarify a bit my closing comments with regard to what the District Judge found with regard to major Federal action?

The correct statement, I believe, is as follows.

We do not take the position, as we stated in the reply brief, as to whether this is or is not major Federal action.

Now, when the decision makers face this issue of the adequacy of the environmental document that is submitted to them as it is required to be submitted by the regulations, that is an issue that they will have to resolve.

They will start from the premise that the District Judge so found, so determined, but I believe that that determination is not binding on us because of the fact that we won before the District Court and therefore we are under no obligation to appeal, and also because his finding, as you re read it, was construction and use, and what we have what does remain a secret is how these facilities are used, and must remain a secret, and that brings me–

Before you leave that, because I think you have changed your position again, if I understand it.

Rex E. Lee:

–Well, I have simply reaffirmed the position that I was taking.

Well, now, what is your position on the question whether the storage of nuclear weapons in this facility would be major Federal action?

Rex E. Lee:

Our position is that it may be, it may not be, but that that is an issue that we took… that the decision makers are going to have to take into account, the same as anyone else takes it into account, at the time they decide whether what is required is an environmental impact assessment or statement.

Well, in other words, your position is that you don’t know.

Rex E. Lee:

That is correct.

So we can be sure that if the Department of Defense has a regulation requiring preparation of a statement whenever major Federal action takes place, we don’t know whether they will file such a paper or not.

Rex E. Lee:

Well, what we do know is that they are required, that they are required by the–

But we don’t know how they read the regulation, what they think a major Federal action is.

Rex E. Lee:

–Well, and that they are required in a case like this at least to do an environmental impact assessment that makes the preliminary inquiry whether or not it is a major Federal action, and that they are required to do by the CEQ guidelines, which in turn are incorporated by reference through the Department of Defense regulations.

Yes, but what it all boils down to is, the United States does not know whether or not the storage of nuclear weapons in this facility would be a major Federal action.

Rex E. Lee:

Well, I don’t know if it is correct to say they do not know.

We do not concede for purposes of this litigation, because I think we don’t need to, that it is.

We took the position before the District Court that–

Well, may I say that I think your position would be much stronger if you did concede that.

Rex E. Lee:

–Well–

Well, aren’t you bound by–

Rex E. Lee:

–I don’t think–

–Doesn’t this case come here on the… as far as we… shouldn’t we judge this case on the assumption that the finding in this case stands, that this is major Federal action?

Rex E. Lee:

–I am perfectly willing to have you decide the case–

And you say that even if it is, you have satisfied everything that is required.

Rex E. Lee:

–That is absolutely correct, that even if it is, that it has been satisfied.

Well, we are judging this case, not a lot of others that haven’t come up here.

Rex E. Lee:

That is absolutely correct.

The only thing that I am saying is that since we won before the District Court, it is not technically binding on us in that sense.

Let me come now to what I believe is the point that ought to govern the final disposition of this case, and it comes out of the exchange about whether the very existence of the environmental impact statement must be kept secret.

There is no question that that information is classified.

The sources of it are set forth at Page 16 of our brief, and that is a military secret.

Now, if you reveal the fact that whatever document, environmental impact assessment, environmental impact statement, or whatever, has discussed that issue, then you reveal the secret.

This case is distinct… indeed, it may be unique… in that respect.

Mr. Lee, I am not even sure that is right, because the statute is triggered by a proposal, and you conceivably, and I am not suggesting that this is the right view of the case–

Rex E. Lee:

Right.

–but you could conceivably be under an obligation to prepare a statement, even disclose it whenever a proposal is made.

That would not reveal whether or not action was taken on the proposal.

Rex E. Lee:

Well, but what you would not want to do, Justice Stevens, is prepare something that was an environmental impact statement that called to the attention… and make public the fact that it was an environmental impact statement that called to the attention of the decision makers that there were nuclear weapons to be stored there.

I know, but that is going farther than you have to.

All you would have to disclose is that a proposal has been made to store weapons there.

That is what triggers the statement.

It is not the actual storage.

And it seems to me that the distinction between building a nuclear capable facility and making a proposal to store something there may not necessarily be the difference between secrecy and no secrecy.

Rex E. Lee:

Well, in any event, there is no question that in this case, as in others, you come down finally to a distinction between making the disclosure to the decision makers and the adequacy of the final judgment and the adequacy of the alternatives that are taken into account.

If you did disclose publicly that an environmental impact statement or whatever NEPA document had been disclosed or had been made, then you do disclose the very secret at issue, which is whether nuclear weapons are to be stored at that particular facility.

Well, Mr. Lee, it seems you don’t rely, then… I seem to have had a different view from your brief.

You really don’t rely on what you might have to disclose in addition to whether or not there is a likelihood of nuclear weapons being stored here, namely, information about the weapons.

If you were going to really make an assessment, you would have to know an awful lot about the weapons.

Rex E. Lee:

That’s right.

And what their effect is.

Now, do you rely on that at all?

It doesn’t sound like it.

Rex E. Lee:

We do rely on it, in rejecting… There are several approaches that can be taken.

We rely on that, in rejecting the approach that the Court of Appeals took, which was for a hypothetical environmental statement.

Yes.

Rex E. Lee:

And the problem with that hypothetical environmental statement is that it necessarily reveals too much, or it necessarily leads into these kinds of statements.

Well, the proposal that Justice Stevens spoke of, if you are just going to… you are thinking about maybe storing weapons here, and you have to have an environmental impact statement.

Now, you say, if you said you had to have one, then you would have to reveal secret information about the weapons?

Rex E. Lee:

Well–

Is that right, or not?

Rex E. Lee:

–Well, if you could have publicly available, as indeed we do, because there was a classified statement that was prepared in 1975, that something was done.

What you cannot do is get any assurance that what was disclosed in that was the… that what was disclosed in that is that nuclear weapons would be stored there, or that the environmental consequences were called to the attention–

I know, but it is possible… can’t you disclose… are you disclosing any more than what you have already disclosed by your fence, that it is a possibility that nuclear weapons will be stored here some time in the future?

Rex E. Lee:

–Yes.

That is all the fence tells you.

It tells you at least that, doesn’t it?

Rex E. Lee:

The fence does tell you that it is nuclear capable.

And that it is possible.

Rex E. Lee:

And that it is possible.

Well, then, now, that much.

Why isn’t that a… why doesn’t that trigger the requirement of an environmental impact statement?

If it does, then what is your objection?

Your objection is that–

Rex E. Lee:

Making it public.

–Well, making what public, the possibility?

Rex E. Lee:

Making the environmental impact statement public.

All right, and you object to that because of what it tells you about the weapons.

Rex E. Lee:

That is correct.

In your original argument you said, the secret in this case is so and so.

You didn’t say the secret in this case is the characteristics of the weapons.

Rex E. Lee:

Well, there are several secrets in this case, and one of them–

Well, now you’ve got a different case.

Rex E. Lee:

–And one of them, of course, is the nature of the weapons, the security, and so forth, but in addition there is a problem merely with disclosing the fact that these factors have been taken into account or have not, because that implies that there may be storage–

Well, suppose you get to the question, then, suppose the case turns on whether or not what you would disclose in the environmental impact statement is secret, and if it is, whether it is subject to judicial review.

What would you… Your colleague on the other side said, well, even if it is secret material in the environmental impact statement, it should be subject to judicial review, with in camera hearings and so on.

I take it you didn’t want to get into that.

Rex E. Lee:

–We would prefer an in camera review.

I know, you would prefer, but–

Rex E. Lee:

No, we would prefer an in camera review procedure to the kind of approach that was taken by the Court of Appeals, but that kind of–

–Well, is it your position that if it is secret, if what would be in the environmental impact statement is secret, that that is the end of it, and that it should not be subject to judicial review at all?

Rex E. Lee:

–That is absolutely correct.

You do have the threshold inquiries about the adequacy of the procedure that has been followed.

Those would be… those could be subject to in camera review but we think that the risks of disclosure are sufficiently great that, particularly with adversary type proceedings, the need for appeal, and so forth.

And you think your argument today is consistent with your brief, and you don’t disavow anything in your brief?

Rex E. Lee:

Absolutely not.

What I have said here today is that the risks that are attendant upon the Court of Appeals view are the risks that are set forth in our brief, but that in addition, there is the problem that is also discussed in our reply brief, that the mere disclosure of the fact that an environmental statement has been prepared may also disclose the secret at issue.

We respectfully submit that the decision of the Court of Appeals should be reversed.

Warren E. Burger:

Thank you, counsel.

The case is submitted.