Romer v. Carlucci

847 F.2d 445, 1988 WL 48037
CourtCourt of Appeals for the Eighth Circuit
DecidedMay 18, 1988
DocketNos. 86-1458, 86-1517
StatusPublished
Cited by4 cases

This text of 847 F.2d 445 (Romer v. Carlucci) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Romer v. Carlucci, 847 F.2d 445, 1988 WL 48037 (8th Cir. 1988).

Opinions

HEANEY, Circuit Judge.

I. OVERVIEW

In this case, the Court sitting en banc reconsiders the challenges of the state of Colorado and various environmental organizations to the adequacy of an environmental impact statement submitted by the Department of the Air Force. The statement was filed in conjunction with the proposed deployment of MX missiles in former Minuteman III missile silos in Colorado and Nebraska. We reverse the district court’s finding that the claims were barred by the political question doctrine. We hold that section 110 of the Department of Defense Authorization Act, 1984, Pub.L. No. 98-94, § 110, 97 Stat. 614, 621-22 (1983) (DAA 1984), requiring the Air Force to file an environmental impact statement (EIS) applies to all of the MX missiles authorized for deployment by Congress. Because this provision defines the scope of the required EIS in terms of the “proposed deployment and peacetime operation of the MX missiles in the Minuteman silos,” we further hold Colorado’s claims relating to the environmental impact of the MX missile project, as well as the claims of the environmental groups concerning the environmental impact of peacetime operations, can be heard in federal court. In this light, we order the district court to review these claims with all the rigor and scrutiny required by law. However, the claims of the environmental groups urging that the EIS include a discussion of alternative weapons systems, alternative basing modes, and the potential wartime use of the missiles fall outside of the terms of the statute. We thus find the federal courts without power to consider these matters.

[448]*448II. FACTUAL BACKGROUND

A. Statutory History of MX Missile Program

The nuclear defense of the United States is based upon a “strategic triad.” The first leg of this triad consists of submarine launched ballistic missiles, the second centers on an airborne nuclear strike force, and the third on land-based intercontinental ballistic missiles. The MX missile project is part of an effort to modernize the third leg of the triad by developing and deploying a more advanced, accurate, and powerful land-based nuclear missile system.

By the late 1970’s, it appears that Congress and the Executive had agreed in principle to modernize the land-based component of the triad by the deployment of the MX missile. The exact mode in which these weapons would be deployed, however, was hotly contested throughout the late 1970’s and early 1980’s. After a series of disagreements between the two branches, Congress enacted the “Jackson Amendment” to the Department of Defense Authorization Act, 1983, Pub.L. No. 97-377, 96 Stat. 1830, 1833, 1846-49 (1982), which required the President to submit a detailed technical report discussing alternative basing and weapons systems and conditioned funding of the missile project on explicit congressional approval of the President’s proposals.

Following the directives set forth by the Jackson Amendment, the President created the Scowcroft Commission to examine possible alternative basing modes. After extensive study, the Commission recommended that 100 MX missiles replace aging Minuteman III missiles in existing silos.

In response, Congress enacted section 110 of DAA 1984. This section provided for the procurement of not more than 21 MX missiles to be deployed in the manner recommended by the President’s report. Additionally, the law required the Secretary of the Air Force to prepare an environmental impact statement “in accordance with all terms, conditions, and requirements of the National Environmental Policy Act of1969 [42 U.S.C. §§ 4321-4370 (1983) (NEPA)] on the proposed deployment and peacetime operations of MX missiles in the Minuteman silos * * * ” (emphasis added).1

Subsequently, in 1985 Congress provided for the purchase of 21 additional missiles. In doing so, it did not specifically provide any additional directives concerning compliance with NEPA or concerning where and how these missiles would be based. See Department of Defense Authorization Act, 1985, Pub.L. No. 98-525, § 110, 98 Stat. 2492, 2504, 2506 (1984) (DAA 1985).

In 1986, Congress provided funds for 12 more missiles. Again, the legislation did not make explicit reference to compliance with NEPA or to the basing mode of the new missiles. It did, however, declare that not more than 50 of the MX missiles could be placed in Minuteman silos. In addition, it stated that, unless another basing mode was specifically approved by Congress, deployment of additional missiles was prohibited and further procurement was limited to those necessary to support testing programs for the MX. See Department of Defense Authorization Act, 1986, Pub.L. 99-145, § 141, 99 Stat. 583, 603-604 (1985) (DAA 1986). In 1987, the Congress authorized funds for 12 additional missiles for testing, bringing the total to 66. See Department of Defense Authorization Act 1987, Pub.L. No. 99-661, § 103, 100 Stat. 3816, 3826 (1986) (DAA 1987).

On October 7, 1983, the Secretary of Defense issued a draft EIS for all 100 missiles proposed by the President for eventual deployment. After a 45-day pub-[449]*449lie comment period during which public hearings were held in Wyoming and Nebraska, the EIS was issued on January 30, 1984. The first ten missiles were deployed prior to a December 31, 1986, deadline. See Letter from Peter R. Steenland, Chief Appellate Section, Land & Resources Division, Department of Justice to Robert St. Vrain, Clerk, United States Court of Appeals for the Eighth Circuit, March 9,1988, Attachment “A”.

B. The Proceedings Below

In separately filed complaints consolidated in the district court below, the Governor of Colorado and various counties and municipalities in the State of Colorado (collectively “Colorado”), together with Western Solidarity Inc., Friends of the Earth, Inc., Committee for a Sane Nuclear Policy, Council for a Liveable World, and Environmental Action, Inc. (collectively “environmental groups”) brought suit against the Secretary of Defense, the Secretary of the Air Force, and the President of the United States (collectively “the Air Force”) challenging the adequacy of the MX missile project’s EIS.

Colorado first claims that the EIS filed by the Air Force failed to come to terms with the environmental impact of the project upon the state of Colorado. In this regard, it claims it was improperly excluded from “meaningful involvement” in the EIS hearings conducted by the Air Force. Second, it asserts that the EIS did not adequately consider the effect of the MX project on Colorado’s water supply. Third, it alleges that the Air Force did not adequately consider several potentially detrimental consequences of the project on the health and safety of Colorado citizens. Fourth, it maintains that the Air Force did not adequately discuss the impact of placing MX missiles on an active geological fault zone. Fifth, Colorado claims that the Air Force did not properly explore the potential impact of the project on employment, housing, land use, and public services within the state. Sixth, it maintains that the EIS failed to discuss the impact of the project on the state’s endangered species. Finally, Colorado asserts that the implications of transportation, storage, and construction of missile components within the state were never examined.

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Roy R. Romer, Governor of the State of Colorado City of Boulder, Colorado Board of County Commissioners of the County of Boulder, Colorado City of Fort Collins, Colorado Board of County Commissioners of the County of Larimer in the State of Colorado City of Loveland, Colorado and the City and County of Denver, Colorado v. Frank C. Carlucci, in His Capacity as Secretary of Defense United States Department of Defense Edward C. Aldridge, in His Capacity as Secretary of the Air Force United States Department of the Air Force and Ronald Reagan, President of the United States, Western Solidarity, Tri-State Mx Coalition, Inc., Nebraskans Opposed to the Mx, Nebraska Nuclear Weapons Freeze Campaign, Nebraskans for Peace, Denver Nuclear Weapons Freeze Campaign, Poudre Valley Nuclear Weapons Freeze Campaign, Boulder Womens International League for Peace and Justice, Mx Information Center, Black Hills Alliance, Rocky Mountain Farmers Union, Wyoming Outdoor Council, National Campaign to Stop the Mx, Mobilization for Survival, American Indians Against Desecration, Wyoming State Representative Lynn Dickey, Bishop Bob Gordon Jones, Reverend Laroy Seaver, Reverend Norman Austin, Reverend Howard Osborn, Reverend Richard Hill, Reverend Joseph Moroney, Reverend Ed Dolinar, Reverend Michael Carr, Reverend Ben Perry, Reverend Joseph Damhorst (s.j.), Reverend Robert Davidson, Vernal Cross, Leonard Crow Dog, Matthew King, Mark Koons, Mary Ann Buscaj, Norma Deselms, Kenneth Deselms, Gene Zimmerman, Helen O'grady, Andrea Convoy, Mae Kirkbride, Linda Kirkbride, Roger Byrd, Friends of the Earth, Inc., Committee for a Sane Nuclear Policy, Council for a Livable World and Environmental Action, Inc., (Intervenor Below) v. Ronald Reagan, President of the United States of America Frank C. Carlucci, Secretary of Defense Edward C. Aldridge, Secretary of the Air Force, United States Department of Defense
847 F.2d 445 (Eighth Circuit, 1988)

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847 F.2d 445, 1988 WL 48037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/romer-v-carlucci-ca8-1988.