Unpublished Disposition, 852 F.2d 572 (9th Cir. 1986)

NORTHWEST INLAND WATERS COALITION, Plaintiff-Appellee,v.UNITED STATES DEPARTMENT OF ENERGY, Defendant-Appellant.

No. 86-4383.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 1987.Decided July 11, 1988.

Before FLETCHER and FARRIS, Circuit Judges, and RUDI M. BREWSTER,^**  District Judge.

MEMORANDUM^* 

The Northwest Inland Water Coalition (NIWC), an environmental organization, sued the U.S. Department of Energy for failing to prepare an Environmental Impact Statement (EIS) before implementing the "Fuel Movement Project", a plan to ship fuel from foreign nuclear reactors to the United States for reprocessing. The district court found DOE's decision not to prepare an EIS unreasonable, and enjoined it from implementing the Fuel Movement Project until an EIS was prepared.

Because we find DOE should first prepare an Environmental Assessment (EA) to determine the need for an EIS, we affirm in part, reverse in part, and remand.

BACKGROUND

The National Environmental Policy Act (NEPA) requires an EIS for all "major Federal actions significantly affecting the quality of the human environment". 42 U.S.C. § 4332(2) (C). The threshold for preparation of an EIS is evidence that a project "may significantly degrade some human environmental factor." Foundation for N. Amer. Wild Sheep v. United States Dep't of Agric., 681 F.2d 1172, 1178 (9th Cir. 1982) (emphasis in original). "A determination that significant effects on the human environment will in fact occur is not essential." Id. If a proposed federal action normally would not require an EIS, an agency generally must prepare an EA in order to decide whether an EIS must be prepared. 40 C.F.R. Secs. 1501.4(a), (b), (c); 1508.9. Agencies also identify categories of actions that do not have a significant effect on the human environment; for these "categorical exclusions" neither an EIS nor an EA is normally required. Id. Secs. 1501.4(a) (2), 1507.3(b) (2) (ii), 1508.4.

The federal action at the center of this NEPA controversy is DOE's Fuel Movement Project, a program for transporting 50,000 pounds of high-level nuclear waste from Taiwanese reactors to the United States for reprocessing. Specifically, it provides for shipping spent fuel from Taiwan by commercial cargo vessels that would make stops in Asian ports and the U.S. ports of Seattle/Tacoma and San Francisco/Oakland before unloading and transferring the spent fuel to trucks at the Port of Long Beach for shipment to South Carolina for reprocessing.

On March 12, 1986 NIWC filed suit to enjoin implementation of the Fuel Movement Project, alleging that DOE violated NEPA by failing to prepare an EIS or an EA before implementing the proposal. NIWC's concerns rested, in part, on DOE's decision to route the nuclear waste through three heavily populated port cities, without analyzing alternative routes, and on DOE's reliance on outdated environmental studies that did not consider risks particular to ocean transport and the proposed shipping route, instead of conducting its own analysis specific to the conditions under which the Fuel Movement Project would be implemented.¹ 

NIWC, supported by amicus briefs from the States of Washington and California, the Port of Oakland, the City of Long Beach, the American Civil Liberties Union, and the Seattle Times, moved for partial summary judgment on its claims under NEPA and the notice provision of the Atomic Energy Act. DOE moved for dismissal or summary judgment on all claims, contending that it need not prepare an EIS or EA because of a categorical exclusion applicable to "actions which are substantially the same as other actions for which the environmental effects have already been assessed in a NEPA document and determined by DOE to be clearly insignificant and where such assessment is currently valid." DOE NEPA regulations, 45 Fed.Reg. 20694, 20700 (March 28, 1980).

The district court, on cross motions for summary judgment, found for NIWC and enjoined DOE from implementing the Fuel Movement Project until the agency prepared a project-specific EIS. DOE now concedes that its reliance on the categorical exclusion was unreasonable, and has appealed the sole issue of whether the district court erred in ordering it to prepare an EIS, instead of remanding to the agency to perform an EA in order to determine for itself whether an EIS is required.

STANDARD OF REVIEW

Our jurisdiction rests on 28 U.S.C. § 1292(a) (1) (appeal from interlocutory order granting injunction), through which not only the injunction, but also all substantive issues underlying the order, are open to review. Fentron Industries, Inc. v. National Shopmen Pension Fund, 674 F.2d 1300, 1304 (9th Cir. 1982).

DISCUSSION

A. DOE's Decision not to Prepare an EIS

" [A]n agency's determination that a particular project does not require the preparation of an EIS is to be upheld unless unreasonable." Foundation for N. Amer. Wild Sheep v. United States Dep't of Agric., 681 F.2d at 1177. Because DOE concedes that its reliance on the categorical exclusion and outdated studies was unreasonable, we only decide whether the agency should be allowed to prepare an EA instead of an EIS. We thus need not review the district court's finding that the Fuel Movement Project was a "major federal action significantly affecting the environment."

B. Remand for Preparation of an Environmental Assessment.

In Jones v. Gordon, 792 F.2d 821, 828 (9th Cir. 1986), we recognized the wisdom in allowing an agency to explain itself. We held that the National Marine Fisheries Service's decision to rely on a categorical exclusion was unreasonable because the agency "failed to explain adequately its decision not to prepare an environmental impact statement". 792 F.2d at 828. We remanded to give NMFS an opportunity to consider NEPA's requirements and explain its understanding of its obligations. Rather than directly requiring an EIS, we gave the agency the opportunity to prepare first an EA, and then, if one appeared necessary, an EIS.

Similarly, here DOE unreasonably relied on a categorical exclusion and out-of-date, inadequate assessments. We thus find remand advisable in order to allow DOE to consider updated studies and potential hazards unique to container ship transport of nuclear wastes along the Fuel Movement Project's proposed routes.

Incidentally, DOE asks us to find Jones controlling precedent for the sweeping proposition that a court, upon finding an agency unreasonably failed to prepare an EIS or an EA, must invariably remand to the agency for preparation of an EA. We decline to do so. The advisability of remand depends upon the particular grounds for unreasonableness. Where " [w]e may conclude the agency acted unreasonably [because] substantial questions are raised concerning whether the project may significantly affect the quality of the human environment," our courts indisputably are empowered to direct an agency to prepare an EIS, and have often done so. Confederated Tribes and Bands v. F.E.R.C., 746 F.2d 466, 475-77 (9th Cir. 1984); Forelaws on Board v. Johnson, 743 F.2d 677, 686 (9th Cir. 1984); Environmental Defense Fund v. Andrus, 596 F.2d 848, 850-53 (9th Cir. 1979); Port of Astoria v. Hodel, 595 F.2d 467, 476-77, 480 (9th Cir. 1979). Where, as here, the agency's failure to perform an EIS is unreasonable because it attempted, without adequate explanation, to rely on a categorical exclusion, remand for an EA is appropriate. Jones, 792 F.2d at 828-29.

CONCLUSION

We agree that DOE's failure to conduct an EIS or EA was unreasonable, but reverse the district court's finding that DOE must prepare an EIS at this juncture. We remand to the district court with instructions to remand to DOE for preparation of an EA. DOE may decide, of course, that it should proceed directly to preparation of an EIS instead of an EA. The injunction against the Fuel Movement Project is to remain in place at the discretion of the district court. This panel shall retain jurisdiction over appeals by either party.

AFFIRMED in part, REVERSED in part, and REMANDED.