South Carolina ex rel. Beasley v. O'Leary

953 F. Supp. 699, 44 ERC (BNA) 1758, 1996 U.S. Dist. LEXIS 20377, 1996 WL 766561
CourtDistrict Court, D. South Carolina
DecidedDecember 30, 1996
DocketNo. 3:96-2264-17
StatusPublished
Cited by1 cases

This text of 953 F. Supp. 699 (South Carolina ex rel. Beasley v. O'Leary) is published on Counsel Stack Legal Research, covering District Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
South Carolina ex rel. Beasley v. O'Leary, 953 F. Supp. 699, 44 ERC (BNA) 1758, 1996 U.S. Dist. LEXIS 20377, 1996 WL 766561 (D.S.C. 1996).

Opinion

ORDER

JOSEPH F. ANDERSON, JR., District Judge.

The State of South Carolina brought this action on July 29,1996 alleging that an Environmental Impact Statement (“EIS”) prepared by the Department of Energy does not meet the requirements of the National Environmental Policy Act (“NEPA”). 42 U.S.C. §§ 4321-4361. The disputed EIS addresses shipments of foreign spent nuclear fuel to the Savannah River Site. The State seeks an order requiring the preparation and circulation of a supplemental EIS and an injunction against deposit of spent fuel into the Savannah River Plant’s L-Reactor Disassembly Basin until the supplemental EIS is completed.

This matter is presently before the court on Cross Motions for Summary Judgment by all parties.1 The court heard oral argument on the motions on December 18, 1996 and took the motions under advisement. The court’s judgement is explained herein.

STANDARD OF REVIEW

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). It is well established that summary judgment should be granted “only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts.” Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987).

The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

THE NATIONAL ENVIRONMENTAL POLICY ACT

The National Environmental Policy Act, as suggested by its title, is a Congressional declaration of a policy of environmental awareness. 42 U.S.C. §' 4331 et seq. The Act requires agencies to evaluate and consider effects on the environment prior to undertaking any major federal action. NEPA recognizes that many factors are important in any decision making process, but demands that the environment be included as one of those many factors. See Calvert Cliffs’ Coordinating Committee, Inc. v. U.S. Atomic Energy Comm’n, 449 F.2d 1109 (D.C.Cir.1971).

Because of the procedural nature of NEPA, the judiciary’s role is limited to [702]*702making two determinations. The court may review whether an agency considered the relevant environmental consequences of its actions, and the court may consider if the agency’s decisions were arbitrary and capricious. When all significant environmental consequences have been considered by an agency, the court has no choice but to find that the agency’s action complies with NEPA’s procedural requirements. See Adler v. Lewis, 675 F.2d 1085, 1096 (9th Cir.1982). NEPA does not require that “environmentally friendly” results be reached in the decision making process; it only requires that agencies take a “hard look” at the environmental consequences before undertaking a major action. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51, 109 S.Ct. 1835, 1845-47, 104 L.Ed.2d 351 (1989); Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976). A court must “ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.” Baltimore Gas & Elec. v. Natural Resources Defense Council, 462 U.S. 87, 97-98, 103 S.Ct. 2246, 2252-53, 76 L.Ed.2d 437 (1983).2

As stated above, NEPA is a statutory declaration of the policy of the United States. That policy is “to use all practicable means and measures ... to create and maintain conditions under which man and nature can exist in productive harmony.” 42 U.S.C. § 4331(a). The court cannot enforce a declaration of policy, that is for the Legislative and Executive branches alone, but it should keep that policy in mind when construing the requirements of NEPA.

It is now well recognized that NEPA has two main goals. First, NEPA is an attempt to force agencies to consider environmental consequences when making decisions. Baltimore Gas, 462 U.S. at 97-98, 103 S.Ct. at 2252-53. Second, NEPA is an attempt to ensure that relevant information is available to members of the public.

Agencies comply with NEPA by formulafcing an Environmental Impact Statement (EIS). 42 U.S.C. § 4332. The purpose of this statement is to “serve as an action-forcing device to insure that the policies and goals defined in the Act” are met by agencies. 40 C.F.R. § 1502.1 (1996). The EIS must “provide full and fair discussion of significant environmental impacts and shall inform the decision makers and the public of reasonable alternatives.” Id. To serve this purpose, the EIS should be “concise, clear, and to the point.” Id.

A major thrust of the regulations dealing with Environmental Impact Statements has been to reduce paperwork and the accumulation of extraneous background data in the statements. Id. For example, regulations require that usually the main body of an EIS must be less than 150 pages, and proposals of unusual scope or complexity must be less than 300 pages. 40 C.F.R. § 1502.7 (1996). The regulations also allow incorporation of material by reference, but only when the effect is not to impede publie review of the action. 40 C.F.R. § 1502.21 (1996).

[703]*703FACTS

I. History

The developments leading up to the present controversy stretch back over several decades. In the 1950’s, the United States began what was known as the “Atoms for Peace” program. As part of this program, the United States provided nuclear technology to foreign nations for peaceful applications, in exchange for their promises to fore-go development of nuclear weapons. A key part of this program was the provision, by the United States, of highly enriched uranium used to fuel research reactors in other countries.

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953 F. Supp. 699, 44 ERC (BNA) 1758, 1996 U.S. Dist. LEXIS 20377, 1996 WL 766561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/south-carolina-ex-rel-beasley-v-oleary-scd-1996.