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Mothers for Peace and the need to develop classified NEPA procedures
Farris, Joseph
Farris, Joseph
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"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 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 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 EIS—a public document. 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. Nonetheless, the court did not provide clear guidelines on how NEPA should be applied in order to resolve the tension between security issues and NEPA’s goal of public involvement in environmental decisionmaking. This Note considers that tension and attempts to provide a solution by advocating for the use of a special congressional oversight committee and in camera judicial review of classified NEPA proceedings. By establishing an official procedure for overseeing and reviewing classified NEPA proceedings, Congress can ensure that agencies will not be allowed to undermine NEPA’s purposes in the name of national security." (p. 1-2)
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2007
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With permission of the license/copyright holder