Mothers for Peace and the Need to Develop Classified NEPA Procedures

Ecology Law Quarterly, Dec 2007

By Joseph Farris, Published on 06/01/07

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Mothers for Peace and the Need to Develop Classified NEPA Procedures

Mothers for Peace and the Need to Develop Classified NEPA Procedures JosephFarris 0 0 Copyright © 2007 by the Regents of the University of California. . J.D. Candidate, University of California at Berkeley, School of Law (Boalt Hall), 2008; B.A., Wisconsin University, 2003. My thanks to Jennifer Jeffers, Alice Bodnar, Heather Barnett, Jenna Musselman, Christie Henke and Professor Robert Infelise for all of their help in the preparation of this Note. 1. Michael V. Hayden, BalancingSecurityandLiberty. The Challengeof SharingForeign SignalsIntelligence , 19 NOTRE DAME J.L. ETHICS & PUB. POL'Y 247,251, 2005 , USA -Michael V. Hayden, Director of the Central Intelligence Agency, former Director of the National Security Agency (1999-2005).1 As nationalsecurityissueshave become increasinglymore important and urgent in the United States, the imprint of national security has correspondinglygrown more apparenton the landscapeof environmental regulation. This Note examines how enforcement of the National EnvironmentalPolicy Act (NEPA) is at risk of being compromised by the encroachment of national security concerns. The Ninth Circuit's recent ruling in San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission consideredwhether NEPA requiresthe Nuclear RegulatoryCommission (NRC) to evaluate, in an EnvironmentalImpact Statement (EIS), the potentialof a terroristattack on a proposedstorage facility fornuclearmaterial.The NRCclaimed thatit was not appropriate to address sensitive national security information in an EIS-a public document. The court, in keeping with Supreme Courtprecedent, ruled againstthe NRC andrefused to waive NEPA 's requirementseven though the federalaction dealt with classifiedsubjectmatter. Nonetheless, the court did not provide clear guidelines on how NEPA should be appliedin order to resolve the tension between security - "The resulting tension-between secrecy on one hand and open debate on the other-isbest reconciledthrough rigorousoversight." issues and NEPA 's goal of public involvement in environmental decisionmaking. This Note considers that tension andattempts to provide a solution by advocatingfor the use of a special congressionaloversight committee andin camerajudicialreview of classifiedNEPA proceedings. By establishing an official procedure for overseeing and reviewing classifiedNEPA proceedings,Congress can ensure that agencies will not be allowed to undermine NEPA 's purposes in the name of national security. INTRODUCTION As national security issues have become increasingly more important and urgent in the United States, the imprint of national security has correspondingly grown more apparent on the landscape of environmental regulation. This Note examines how enforcement of the National Environmental Policy Act (NEPA) is at risk of being compromised by 2. See Ed Bethune, Homeland Security and Environmental Law. Impacting and InfluencingEach Other,SPECIAL COMM. ON HOMELAND SEC. NEWSLETrER (A.B.A. Section of Env't, Energy, & Resources, Chicago, Ill.), Vol. 1, No. 1, July 2004, at 2-7, available at http://www.abanet.org/environ/committees/homelandsecurity/newsletter/archive/. the encroachment of national security concerns. The Ninth Circuit's recent ruling in San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission considered whether NEPA requires the Nuclear Regulatory Commission (NRC) to evaluate, in an Environmental Impact Statement (EIS), the potential impact of a terrorist attack on a proposed storage facility for nuclear material.' The NRC claimed that it was not appropriate to address sensitive national security information in an EISa public document.4 The court, in keeping with Supreme Court precedent, ruled against the NRC and refused to waive NEPA's requirements even though the federal action dealt with classified subject matter. 5 The court did not, however, specify exactly what action the NRC needed to take to remedy "the inadequacies of the agency's NEPA analysis."6 The opinion simply makes the broad statement that "there remain open to the agency a wide variety of actions it may take on remand."7 Nonetheless, prior Supreme Court jurisprudence has suggested that the NRC might be able to respond by producing a partially or completely classified EIS on the issue.8 By not proposing an alternative to the practice of creating classified EISs, Mothers for Peace directly undercuts the two primary goals of NEPA: (1) ensuring that agencies fully account for environmental impacts before proceeding with major federal actions, and ( 2 ) allowing meaningful public participation in the decisionmaking process.9 Furthermore, allowing the Nuclear Regulatory Commission-a nonmilitary agency-to classify NEPA procedures in the name of national security concerns could lead to widespread use of this tactic by other nonmilitary agencies. Part I of this Note discusses the Mothersfor Peaceholding and prior case law on the conflict between NEPA and national security conce (...truncated)


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Joseph Farris. Mothers for Peace and the Need to Develop Classified NEPA Procedures, Ecology Law Quarterly, 2007, Volume 34, Issue 3,