David E. Adelman (D.C. Bar # 458346)
Natural Resources Defense Council, Inc.
1200 New York Avenue, N.W., Suite 400
Washington, D.C. 20005
Telephone: (202) 289-6868
Fax: (202) 289-1060Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
________________________________________________________NATURAL RESOURCES DEFENSE COUNCIL, INC.
1200 New York Avenue, N.W., Suite 400
Washington, D.C. 20005
(202) 289-6868PHYSICIANS FOR SOCIAL RESPONSIBILITY
1875 Connecticut Avenue, N.W., Suite 1012
Washington, D.C. 20009
(202) 667-4260GREENPEACE, INC.
702 H Street, N.W.Washington, D.C. 20001
(202) 462-1177
ALASKA ACTION CENTER
308 G Street, Suite 218
Anchorage, AK 99501
(907) 563-2784ALASKA COMMUNITY ACTION ON TOXICS
135 Christensen Drive, Suite 100
Anchorage, AK 99501
(907) 222-7714ALASKA PUBLIC INTEREST RESEARCH GROUP
507 E Street, Suite 213
Anchorage AK 99501
(907) 278-3661KODIAK ROCKET LAUNCH INFORMATION GROUP
P.O. Box 970 Kodiak, AK , 996154-0970
(907) 486-6498NO NUKES NORTH: ALASKAN & CIRCUMPOLAR COALITION AGAINST MISSILE DEFENSE
P.O. Box 84997
Fairbanks, AK 99078
(907) 457-5230Plaintiffs,
v.
DONALD RUMSFELD
Secretary of Defense
Room 3E880, The Pentagon
Washington, D.C. 20301
(703) 692-7100LT.GENERAL RONALD T. KADISH
Director, Ballistic Missile Defense Organization
Room 1E1081, The Pentagon
Washington, D.C. 20301-7100
(703) 697-8472U.S. DEPARTMENT OF DEFENSE
The PentagonWashington, D.C. 20585
(202) 586-5000
UNITED STATES OF AMERICA
Defendants
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Civil Action No.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
NATURE OF THE ACTION
This is a civil action under the National Environmental Policy Act ("NEPA") against the United States Department of Defense ("the Department" or "DOD") and against the named officials of that agency for failing to prepare (1) a supplement to the programmatic environmental impact statement ("PEIS") on the Department's Ballistic Missile Defense ("BMD") program and (2) a tiered environmental impact statement ("EIS") on the new Missile Defense System ("MDS") Test Bed prior to initiating work on the Fort Greely, Alaska, portion, or any other portion, of the MDS Test Bed. The restructured BMD program, and the MDS Test Bed component in particular, will result in significant environmental impacts at the Fort Greely site and numerous additional sites in Alaska, Hawaii, the Marshall Islands, and the continental United States.
In July 2001, DOD unveiled a new program to boost BMD spending by $3 billion, to more than $8 billion annually, and to develop a greatly expanded test range in Alaska and the Northeastern Pacific region for ground and sea-based interceptor missiles, radars, and airborne lasers. Neither a July 2000 National Missile Defense ("NMD") Deployment EIS ("NMD Deployment EIS") nor the Ballistic Missile Defense Programmatic EIS from November 1994 ("1994 BMD PEIS") considered the environment implications of the new program for expanded and integrated BMD testing and contingent "emergency deployment" that DOD is beginning to implement at Fort Greely, and other locations.
DOD's environmental analysis conflates testing and deployment activities and seeks to rely on an obsolete environmental analysis for the Proposed Action in the NMD Deployment EIS-establishing a limited NMD system in Alaska-as the basis for initiating the first phase of an entirely different BMD program-"site preparation for the Fort Greely, Alaska, portion of a Missile Defense System (MDS) Test Bed," see 66 Fed. Reg. 42847. DOD's proposed new BMD program would use the large integrated MDS Test Bed to accelerate testing and evolutionary deployment of a multi-layered defense system, consisting of ground-, sea-, and air-based elements covering all "phases" of a missile's flight trajectory-boost, mid-course, and terminal.
DOD's approach to NEPA compliance misappropriates a single element of the outdated NMD Deployment EIS to allow the first phase of the MDS Test Bed component of the new BMD program to proceed without conducting any environmental analysis. DOD has plainly stated that the NMD deployment program upon which the NMD Deployment EIS is based has been superceded; DOD cannot now selectively rely on a defunct EIS as the basis for proceeding with the first stage of its "bold new" BMD program. Moreover, the actions taken to establish the MDS Test Bed in Alaska will unavoidably constrain the alternatives available to DOD in proceeding with the new BMD program. Relying on this subterfuge, DOD is attempting to circumvent NEPA by proceeding with its MDS Test Bed and the newly restructured BMD program prior to completing either an EIS or a supplement to the 1994 BMD PEIS.
Plaintiffs' Complaint seeks a declaratory judgment that Defendants are in violation of §102(2)(C) of NEPA, 42 U.S.C. §4332(2)(C), and its implementing regulations, by failing to prepare a supplemental PEIS analyzing the restructured BMD program and by failing to prepare an EIS for the new MDS Test Bed. Plaintiffs further seek injunctive relief requiring Defendants to prepare, circulate for public comment, and consider in their decision-making process a supplement to the 1994 BMD PEIS, and an EIS on the MDS Test Bed prior to proceeding with an irreversible commitment of resources in Alaska or other locations.
JURISDICTION AND VENUE
1. This action for declaratory and injunctive relief arises under NEPA and its implementing regulations, promulgated by the Council on Environmental Quality, 40 C.F.R. Parts 1500-08 (the "CEQ Regulations"). The Court has jurisdiction of this action pursuant to 28 U.S.C. §1331 (Federal Question) and 28 U.S.C. §1361 (Mandamus). The Court has authority to review the actions of the Defendants complained of herein, and to grant the relief requested, pursuant to 5 U.S.C. §§701-706 (Administrative Procedure Act). The relief sought is authorized by 28 U.S.C. § 2201 (Declaratory Judgment) and 28 U.S.C. §2202 (Injunctive Relief).
2. Venue is proper in this Court under 28 U.S.C. §1391(e), because the Defendants reside within the District of Columbia. There is an actual and present controversy between the parties to this action. Plaintiffs have exhausted their administrative remedies and have no adequate remedy at law.
THE PARTIES
3. Plaintiff Natural Resources Defense Council, Inc. ("NRDC") is a national non-profit membership environmental organization incorporated under the laws of New York, with offices in Washington, D.C., New York City, San Francisco and Los Angeles. NRDC's nationwide membership of over 500,000 individuals includes members in each of the states in which DOD missile defense facilities and sites are located, including over 1,100 in Alaska, 74,350 in California, 2,000 in Hawaii, 3,500 in New Mexico, and 10,450 in Colorado. NRDC members live within 50 miles of existing DOD missile defense facilities and sites included in the Department's proposal for accelerated testing and deployment of a multi-layered missile defense system capable of intercepting ballistic missiles in all phases of their flight trajectory.
4. NRDC's objectives include maintaining and enhancing environmental quality and monitoring federal agency actions to ensure that federal statutes enacted to protect human health and the environment are fully and properly implemented. Since its inception in 1970, NRDC has sought to improve the environmental and safety conditions at national defense facilities owned and operated by agencies of the United States Government. To achieve this objective, NRDC and its members engage in legislative activities, litigation, administrative actions, and public education efforts to inform others about the environmental impacts of Defendants' activities.
5. Plaintiff Physicians for Social Responsibility ("PSR") represents more than 20,000 physicians, nurses, and health care professionals devoted to nuclear disarmament, violence prevention, and environmental health. PSR has 404 members in Colorado; 3,639 members in California; 122 members in Hawaii; and, 64 members in Alaska. Understanding that nuclear war continues to be the most acute threat to human life and the global biosphere, PSR reaffirms its commitment of nearly forty years to the elimination of nuclear weapons and the reversal of the arms race and the national budgetary priorities which fuel that race, sacrificing our nation's health, social and economic needs. With a reduction in East-West tensions, PSR sees a chance for our nation to address more insidious environmental threats to human survival, such as global warming, ozone depletion, toxic chemicals, and the world population explosion. Recognizing that neglect of social problems and emphasis on militarism has resulted in a crisis of societal violence, PSR also seeks to reverse our domestic arms race and to encourage ways of finding peaceful solutions to interpersonal and local disputes, as well as international conflicts.
6. Greenpeace, Inc. ("Greenpeace") is an international non-profit membership environmental organization with offices in 41 countries. Greenpeace is incorporated in the United States under the laws of California, with offices in Washington, D.C., San Francisco, California, and Anchorage, Alaska. Greenpeace has 346,000 members and supporters in the United States. The membership includes individual members and supporters in states in which current and proposed BMD testing and deployment facilities are located, including 1,185 in Alaska, 1,441 in Hawaii, and 71,678 in California. One or more Greenpeace members or supporters live within 50 miles of DOD BMD facilities in these and other states. One or more Greenpeace members and supporters live near highway, rail, and air routes over which hazardous material and waste will be transported to and from BMD test and deployment facilities, and near the launch sites and flight paths of target and interceptor missiles that will be used by the proposed program. Greenpeace members and supporters inhabit areas close to or contiguous with wilderness areas, wildlife refuges, and other protected areas that may be adversely affected by the proposed actions, and the continuing protection of which is a core value of their commitment as Greenpeace members and supporters.
7. Many members and supporters have joined Greenpeace so that they may obtain adequate representation and protection of the environmental interests they share with Greenpeace. Since its inception in 1971, Greenpeace has worked for an end to all nuclear weapons production, modernization, and deployment, as well as an agreement on a timeline to achieve a nuclear-free future. In addition to nuclear disarmament, Greenpeace works to protect ancient forests, stop global warming, halt the production of toxic chemicals, protect the oceans, and eliminate the threat of genetic engineering. To this end, Greenpeace and its members and supporters use peaceful protest, creative communication, administrative actions, litigation, and public education to inform others about the environmental impact of and solutions to environmental problems.
8. Plaintiff Alaska Action Center ("ACC") has been working to inform Alaskans about the implications of National Missile Defense for more than a year, since the NMD program was being considered under the Clinton Administration. AAC is a statewide non-profit organization that seeks to empower Alaska communities with grassroots organizing. AAC, formed in 1998, is focused on the twin issues of human rights and environmental justice. AAC has a regular mailing list reaching more than 1,000 Alaskan individuals and organizations. AAC has worked since early 2000 to inform Alaskans, and others, of the potential impacts of deployment of a National Missile Defense, and related programs, in Alaska. AAC's primary goal concerning the NMD program is to let Alaskan communities know what is being proposed in their "backyard." We have formed a coalition called Citizens Opposed to Defense Experiments ("CODE"); collected hundreds of signatures on a petition opposing deployment of a NMD; monitored DOD actions in relation to Alaska projects; held press conferences and other media events; contacted communities especially affected by NMD deployment to inform them of new developments; provided testimony at hearings; and alerted Alaskans with flyers, newsletter articles, and other forms of outreach.
9. Plaintiff Alaska Community Action on Toxics ("ACAT"), is a statewide non-profit membership organization in Alaska, with an office in Anchorage. ACAT has more than 300 members, with the majority of members in Alaska. ACAT works to achieve environmental health and justice. ACAT works to stop the production, proliferation, and release of toxic chemicals that may harm human health or the environment. Since ACAT's founding in 1997, the organization has worked to ensure that the DOD is accountable for responsible cleanup of hazardous waste sites and for pollution prevention. ACAT conducts investigative research and computer (geographic information system) mapping. ACAT advocates for community right-to-know and environmental health by providing public information, engaging in litigation, and taking part in administrative actions.
10. Plaintiff Alaska Public Interest Research Group ("AkPIRG") is an Alaska state-wide non-profit membership consumer education and advocacy organization, dedicated to protecting citizens and the ecosystems which support them, incorporated under the laws of Alaska, with offices in Anchorage. AkPIRG's statewide membership of over 2,500 includes individual members in which current and proposed BMD testing and deployment facilities are located, including over one hundred in the Fairbanks-Northstar Borough. One or more AkPIRG members live within 50 miles of DOD BMD facilities in Alaska. One or more AkPIRG members live near highway, rail and air routes over which hazardous material and waste will be transported to and from BMD test and deployment facilities, and near the launch sites and flight paths of target and interceptor missiles that will be used by the proposed program. AkPIRG members inhabit areas close to or contiguous with wilderness areas, wildlife refuges, and other protected areas that may be adversely affected by the proposed actions, and the continuing protection of which is a core value of their commitment as AkPIRG members.
11. AkPIRG's purposes include maintaining and enhancing environmental quality and monitoring federal agency actions to ensure that federal statutes enacted to protect human health and the environment are fully and properly implemented. Since its inception in 1974, AkPIRG has sought to improve the public health surrounding and the environmental and safety conditions of defense facilities operated by DOD and other federal agencies, including exposing the use of Alaska Natives as human experimental subjects by the U.S. Arctic Aeromedical Laboratory in Iodine-131 tests. To achieve these objectives, AkPIRG and its members engage in legislative activities, litigation, administrative actions, and public education efforts to inform others about the environmental impacts of DOD's activities.
12. Plaintiff Kodiak Rocket Launch Information Group (KRLIG) is a local ad-hoc citizens group in Kodiak, Alaska. KRLIG is an informal organization with approximately 100 members, almost all residents of Kodiak Island. These residents all live within a 50 mile radius of the Kodiak Launch Complex as well as the Narrow Cape site proposed for the construction of two missile silos. KRLIG's mission is to research and disseminate information related to the Alaska Aerospace Development Corporation, the Kodiak Launch Complex, and Missile Defense issues directly related to Kodiak Island. Founded in 1995, KRLIG has continually published newsletters and placed paid advertisements in the local newspaper in order to keep Kodiak residents informed about the safety hazards and environmental concerns related to rocket launching and associated activities. KRLIG has also been instrumental in communicating community concerns related to rocket launches and associated activities to local, state, and federal officials as well as the media.
13. Plaintiff No Nukes North (NNN) is a regional missile defense education organization based in Fairbanks, Alaska. NNN works closely with other environmental justice and advocacy groups in the state of Alaska. NNN's 200 members, of whom all but a handful are Alaskan residents, are opposed to testing and deployment of missile defenses in Alaska. Fairbanks residents live 100 miles from Fort Greely and about 90 miles from Clear, where a Ballistic Missile Early Warning Radar is located. Kodiak residents live approximately 40 miles from the Kodiak Rocket Launch facility. Members are concerned about the possibility of accidents involving hazardous materials in the transportation of missiles (from both the city of Kodiak to the launch facility and from Fort Greely to Kodiak), about the effects of rocket booster components falling into the Pacific around Kodiak, about incomplete environmental assessments for both Fort Greely and the Kodiak Launch Complex, and about the myriad other possible environmental repercussions from missile defense testing and deployment. No Nukes North advocates peaceful resolutions to conflicts and pushes for US endorsement of US treaty banning weapons in space.
14. No Nukes North's objectives include providing in-depth information on missile defense activities in Alaska; maintaining and enhancing environmental quality; and monitoring federal agency actions at DOD installations statewide to ensure that federal statutes enacted to protect human health and the environment are fully and properly implemented. NNN seeks to limit the harmful environmental impacts from defense facilities operated by DOD and other federal agencies in Alaska. To achieve this objective, NNN and its members engage in legislative activities, litigation, administrative actions, and public education efforts to inform others about the environmental impacts of defendants' activities.
15. Defendant Donald Rumsfeld is sued in his official capacity as the Secretary of the Department. Defendant Rumsfeld's office is at the Department of Defense headquarters in Washington, D.C.
16. Defendant Lieutenant General Ronald T. Kadish is sued in his official capacity as the Director of the Ballistic Missile Defense Organization. Defendant Kadish's office is at the Department of Defense headquarters in Washington, D.C.
17. Defendant United States Department of Defense is an "agency" of the United States Government, within the definition of Section 701 of the Administrative Procedure Act, 5 U.S.C. § 701 et seq., which is charged with responsibilities in connection with the defense of the United States, including the research, development, and testing of ballistic missile defense systems. DOD has its headquarters at the Pentagon, Washington, D.C. 20301.
STATEMENT OF FACTS
18. In November 1994, the Ballistic Missile Defense Organization ("BMDO") at DOD issued a Ballistic Missile Defense Final Programmatic Environmental Impact Statement ("1994 BMD PEIS"), which explained that the BMD program had two central components: (1) a ground-based National Missile Defense ("NMD") directed against long-range strategic missiles; and (2) a ground- and sea-based intermediate-range Theater Missile Defense ("TMD"). The TMD program was evaluated in a separate 1993 PEIS, which was incorporated by reference into the 1994 BMD PEIS. The "Preferred Action" in the 1994 BMD PEIS was to continue "a focused approach to long lead time technology development" in the form of an "NMD Technology Readiness Program." The Preferred Action was the "No-Action Alternative" in the 1994 BMD PEIS, which represented "a continuation of current BMDO policy."
19. The 1994 BMD PEIS also analyzed three "System Acquisition Alternatives" to the Preferred Action that involved "a more intense level of effort": (1) ground and space-based interceptors supported by ground and space-based sensors; (2) an all ground-based alternative; and (3) ground-based interceptors supported only by ground and space-based sensors. Neither sea-based interceptors nor air- or space-based lasers was analyzed in the 1994 BMD PEIS.
20. On April 23, 1995, BMDO issued a Record of Decision ("ROD") on "research, development, and testing of Ballistic Missile Defense capability." According to the Federal Register notice, "the decision conveyed by the ROD is to continue research, development, and testing of NMD capabilities" in the form of an "NMD Technology Readiness Program, but does not include the procurement or acquisition of an operational NMD system. Only limited NMD research, development, and testing is to continue."
21. Only ten months later, on February 16, 1996, DOD announced a significant departure from the NMD Program described in the BMD programmatic record of decision. This restructuring included designating the NMD program a "Major Defense Acquisition Program" and establishing a "National Missile Defense Joint Program Office" that was to report directly to the BMDO Director. BMDO activated the new NMD Joint Program Office on April 1, 1997. Under this new "three-plus-three" NMD program, three years of development and testing, starting October 1, 1996, was to be followed by a deployment decision in the year 2000, which if favorable would entail deploying a limited NMD by about 2003. If by the year 2000, however, long-range missile threats did not warrant deployment, NMD development would continue toward a more fully developed system.
22. BMDO did not prepare a supplement to the 1994 BMD PEIS to support its decision to shift from an NMD "Technology Readiness Program" to an NMD deployment readiness program. During the period 1995-2000, no public hearings were held to receive public comments on the environmental impacts associated with BMDO's accelerated "three-plus-three" Deployment Readiness Program. Instead, DOD prepared discrete environmental assessments of individual program activities, each followed by a "finding of no significant impact," and only one of these assessments was completed before 1999.
23. On November 17, 1998, nearly three years after the NMD program was designated a "Major Defense Acquisition Program" and six months after granting the NMD system integration contract, DOD published a Federal Register Notice announcing its intent to prepare an EIS for "a potential National Missile Defense deployment" of "an operational system by the year 2003" ("NMD Deployment EIS").
24. According to this notice of intent, the "current Proposed Action" included the following elements: (1) an initial ground-based interceptor missile field of 20 missiles located at one of six potential deployment sites-four in Alaska and two in North Dakota; (2) a "Battle Management and Control" center at the same locations and a third alternate site in North Dakota; (3) in-flight interceptor communications system stations "at geographically separated locations in the general vicinity of other NMD elements and in the New England states"; (4) an X-band radar facility at Shemya Island, Alaska, or five potential sites in North Dakota; (5) potential new fiber optic cables in North Dakota and Alaska, including one along the Aleutian Islands to Shemya Island; (6) upgraded early-warning radar at unspecified sites; and (7) existing Defense Support Program satellites and proposed Space-Based Infrared System satellites.
25. From December 1st to the 16th, 1998, seven public scoping meetings for the NMD Deployment EIS were held at two locations in North Dakota, four locations in Alaska, and one location in Washington, D.C. According to the final NMD Deployment EIS, "a total of 660 people attended these meetings." No meetings during the scoping period were held in communities potentially affected by the proposed deployment of fiber optic cable lines and terminals, in-flight interceptor communications stations, or upgraded early warning radars.
26. In January 1999, DOD increased its budget for deployment of an initial NMD system of 20 interceptors by $6.6 billion, to $10.5 billion, and delayed the date for its first operational capability from the 2003 date set by the "three-plus-three" program to 2005. The June 2000 schedule for the Deployment Readiness Review, however, remained the same, as did the timing of the decision on whether to begin or postpone deployment of the proposed NMD system.
27. On November 15, 1999, plaintiff Natural Resources Defense Council ("NRDC") filed comments on the draft NMD Deployment EIS, finding that the document failed to evaluate "all reasonable," or indeed any, alternatives for implementing the proposed NMD program beyond the required "environmental baseline" alternative of "No Action"; failed to provide meaningful comparisons between the environmental impacts of reasonable alternative for NMD system deployment; failed to identify system configuration(s) with the lowest environmental impacts; and failed to consider the impacts of potential accidents at NMD facilities. Other plaintiffs also provided similar comments and critiques of the NMD Deployment EIS.
28. In January 2000, an Integrated Flight Test (IFT-4) of the proposed NMD interceptor failed to destroy the target, delaying the next flight test [IFT-5] until July 2000 and delaying to late summer or fall a decision on whether to deploy the proposed NMD system.
29. By early 2000, DOD determined that construction of the $1 billion X-band radar facility on Shemya Island, Alaska, would have to begin in the fall of 2000 to meet the 2005 deployment date for an initial 20-interceptor NMD system. This constraint required a final determination on construction of the radar facility by late-summer 2000. To accommodate the Shemya radar construction, Congress appropriated $85 million in the fiscal year 2001 Military Construction funds for "NMD Initial Deployment Facilities - Unspecified Worldwide."
30. On August 5, 2000, Lieutenant General Ronald Kadish, Director of BMDO, briefed the Secretary of Defense and other Pentagon officials on the status of the NMD program. According to the Washington Post, "in addition to the troubled flight tests, development of the booster rocket was a year behind schedule, and top military officials had agreed to consider the recommendations of independent experts for extra tests to prove the system was viable." The conclusion that emerged from the session was that the 2005 deployment date would very likely slip, perhaps by a year or more. However, "a clear consensus developed that the White House should be advised to proceed with construction of the radar site on Shemya Island . . . ." DOD and Congress both determined that the Shemya radar was essential to proceeding with the proposed NMD deployment program and was the first priority in the NMD construction schedule. On September 1, 2000, however, the decision was made to delay going forward with the Shemya radar facilities and to defer the NMD deployment decision because the effectiveness of the NMD system was far from proven and the earliest operational date was now 2006. Accordingly, it was determined that postponing the decision would not itself delay implementation of the NMD system.
31. On December 8, 2000, the NMD Deployment EIS was issued in final form. The EIS has a July 2000 cover date, however, making its information at least 14 months old. The proposed restructuring of the BMDO program rendered the NMD Deployment EIS obsolete by creating a broad new plan for research, development, testing, and deployment. The radical departure of the new BMD plan from the previous program also triggered the requirement for a supplement to the 1994 BMD PEIS.
32. In July 2001, General Kadish stated that the objectives of the new BMD program were as follows:
. . . to develop the capability to defend the forces and territory of the United States, its allies, and friends against all classes of ballistic missile threats . . . . At the direction of the Secretary of Defense, we have developed a research, development, and test program that focuses on missile defense as a single integrated BMD system . . . . [T]he new program will pursue a broad range of activities in order to aggressively evaluate and develop technologies for the integration of land, sea, air, or space-based platforms to counter ballistic missiles in all phases of their flight . . . . Through this robust testing activity, we may discover opportunities to accelerate elements of the program . . . and increase the overall credibility and capability of BMD systems. (emphasis added)
33. The "new program," according to General Kadish, "is not a minor change to our previous program. Rather, this is a bold move to develop an effective integrated layered defense as soon as possible against ballistic missiles of all ranges. The new program is a major change in our approach to developing ballistic missile defense. The previous [NMD] program, for example, was a high-risk production and deployment program . . . based on rigid military requirements. The new program is built around a fully funded, rigorous [Research, Development, Testing and Evaluation] designed to demonstrate increasing capability over time through a robust, realistic testing program." The August 2001 Record of Decision, 66 Fed. Reg. 42848, that purportedly implements the NMD Deployment EIS affirms these fundamental changes: "Since the NMD EIS was completed, the Ballistic Missile Defense architecture has evolved into a multi-layered approach that does not distinguish between national and theater threats."
34. In his July 12th statement, General Kadish described plans for creating a "new integrated test bed" for BMD that will "be oriented in the Pacific region and extend many hundreds of miles from the Marshall Islands in the South Pacific to Alaska," as well as extending from Vandenberg Air Force Base in California westward to the Pacific Missile Range Facility in Hawaii and then northwest to Shemya Island at the far western tip of the Aleutian islands. "It will allow more realistic flight-testing of capabilities in the Boost, Midcourse, and Terminal Defense Segment . . . so that we can demonstrate the viability of the layered defense concept."
35. The new MDS Test Bed will make use of upgraded early warning radars at Beale Air Force Base [in California] and Cobra Dane at Shemya Island, and use the Kodiak Launch Facility in Alaska to launch targets and interceptors. Neither the proposed upgrade of the massive Cobra Dane radar nor the use of the Kodiak Launch Facility were analyzed in the NMD Deployment EIS, or even mentioned in the EIS's section on "Related NMD Actions."
36. According to the testimony of BMDO officials on the fiscal year 2002 request for Military Construction funding, the MDS Test Bed will include the following elements:
· Five ground-based interceptors with supporting infrastructure at Fort Greely and a missile transfer facility at Eielson Air Force Base, Alaska. The ground-based interceptors at Fort Greely "will allow BMDO to prove out the design and siting of a [ground-based interceptor] field . . . to test the communication between all component parts, and to test for fuels degradation in the Artic environment." In addition, "flight test(s) would be conducted from Fort Greely if the safety issues could be satisfactorily addressed."
· The Kodiak Launch Complex on Kodiak Island, Alaska, will be used to allow more realistic test trajectories than those presently provided by the Marshall Islands and from the Pacific Missile Range at Kauai Island in Hawaii.
· Refurbishment of the Shemya Island's power plant, construction of testing infrastructure at Eareckson Air Station, and upgrades to the COBRA DANE radar "will allow the program to test sensing and intercept of targets launched from a variety of locations."
· An Upgraded Early Warning Radar at Beale Air Force Base to permit "realistic sensing of offensive missiles during Missile Defense System tests."
· Construction of Battle Management and Control nodes at Fort Greely, the Reagan Test Site on the Marshall Islands, the Joint National Training Facility in Colorado, and at Petersen Air Force Base in Colorado Springs.
· Construction of In-Flight Interceptor Communication system stations at Fort Greely, Eareckson Air Station, Kodiak, and the Reagan Test Site.
· A new $1 billion X-band phased-array radar "proposed for the Pacific area in roughly the 2006 time frame" that would be located in Hawaii, or possibly aboard a ship.
· Satellite and/or fiber optic communication lines between all elements to allow them to communicate.
· Test target launching from Vandenberg Air Force Base in California.
· Development of an advanced version of an air-launched target for new planned intercept areas within the expanded testing range in the North Pacific.
· Use of the shipboard Aegis SPY radar against ballistic missile targets in midcourse, with development at the Combat Systems Engineering Development Site in New Jersey.
· A significant increase in the number of "live-fire" interceptor flight tests and radar tests against rocket-launched targets of all ranges.
37. There are myriad environmental impacts associated with the activities associated with the new BMD program. These include major impacts from construction of new facilities and testing programs at site in Alaska, Colorado, Hawaii, the Marshall Islands, California, and other possible locations; disruption of unique and pristine ecosystems from activities such as laying communications cables and test launches, which in some cases, like the Kodiak Launch Facility, are located in a largely untouched environment that harbors endangered or threatened species; significant deposition of space debris from numerous planned interception tests in low earth orbit, where it can collide with and cripple existing and future satellites; and deposition in the atmosphere of large quantities of ozone-depleting chemicals from the numerous rocket launches required to test and deploy elements of the proposed system.
38. DOD plans to use a portion of the 2001 budget funds for NMD deployment to initiate the first phase of its new MDS Test Bed by, inter alia, preparing a site for the construction of five interceptor silos at Fort Greely, Alaska. The NMD Deployment EIS, however, was premised on operational deployment only-without flight testing-of up to 100 ground-based interceptors at Fort Greely, beginning with an initial capability of 20 missiles by 2005. The earlier approach differs fundamentally from the actions proposed under DOD's new MDS Test Bed. Moreover, the money to be used was originally provided to begin construction of the $1 billion Shemya Island X-band radar, not a test bed. Under the DOD's self-described "new program," the Shemya Island site is no longer proposed as the location for the critical X-band radar; instead, DOD is considering whether to locate the large radar in Hawaii or on board a ship. DOD's August 15th Record of Decision obscures these major differences, incorrectly stating that the "Ground Based Midcourse Element (formerly called the National Missile Defense System) … consists of the same elements, at the same preferred locations, as the NMD system analyzed in the NMD EIS."
39. DOD is misappropriating a single element of the outdated NMD Deployment EIS to allow BMDO to start work on a new project, "the Fort Greely, Alaska portion of a [MDS] Test Bed," that is the first phase of the radically revised BMD program-all without complying with NEPA. DOD has plainly stated that the former NMD program upon which the NMD Deployment EIS is based has been superceded by a multi-layered "Ballistic Missile Defense System" designed to intercept all ranges of ballistic missile threats. BMD flight test activities were excluded from the NMD Deployment EIS and formerly confined to sites in California, Hawaii, and the Marshall Islands; they will now, however, be extended to sites in Alaska and the northeastern Pacific region and integrated with deployment activities. In light of these major changes, DOD cannot now selectively rely on a small segment of a defunct EIS as the basis for proceeding with the first component of its "bold new" BMD program. Moreover, actions taken to establish a test bed at Fort Greely will unavoidably constrain the alternatives available to DOD in proceeding with the MDS Test Bed and the newly restructured BMD program.
40. DOD issued a Record of Decision under the NMD Deployment EIS on August 15, 2001, 66 Fed. Reg. 42847, to conduct initial site preparation activities for the "Fort Greely portion of the MDS Test Bed." This first phase includes "installing and developing two water wells" and "site preparation work for test bed buildings, the main access road up to the Alaska Oil Pipeline crossing, and a single missile field." According to the Record of Decision, the Fort Greely test bed will allow BMDO to "conduct operationally realistic testing of the [Ground Based Midcourse Element] components being developed [for the new BMD program]."
CLAIM FOR RELIEF
1. Plaintiffs reallege and reassert paragraphs 1 through 40.
2. Defendants have violated NEPA and its implementing regulations by failing to prepare a supplemental PEIS for the newly restructured BMD program and by failing to prepare a tiered EIS on the MDS Test Bed prior to initiating the first phase of work on the Fort Greely, Alaska, portion of the MDS Test Bed.
3. The Council on Environmental Quality ("CEQ") NEPA regulations require an agency to prepare an environmental impact statement for all major federal actions having a significant impact on the environment. 40 C.F.R. §§ 1502.3, 1502.4. CEQ regulations require preparation of a supplement to a final environmental impact statement if (a) the agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (b) there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts. 40 C.F.R. §§ 1509.9(c)(1)(i) and (ii). Federal agencies must complete NEPA analyses at the feasibility analysis stage to ensure that they ". . . can serve practically as an important contribution to the decision-making process and will not be used to rationalize or justify decisions already made." 40 C.F.R. § 1502.5.
4. DOD has fundamentally restructured the BMD program by shifting from a focused "NMD Technology Readiness Program" for a ground-based, mid-course system to a vastly expanded research, development, and testing program for a single integrated BMD system of land-, sea-, air-, and space-based platforms to counter ballistic missiles in all phases of their flight. These fundamental changes require preparation of a supplement to the 1994 BMD PEIS.
5. In the process of overhauling the BMD program, DOD also revamped the NMD component of the BMD program by integrating it with the other elements, by altering the proposed systems and the timing and location of their deployment, and by making major changes in the related research, development, and testing programs. These changes and the superceding MDS Test Bed project have rendered the NMD Deployment EIS obsolete. The MDS Test Bed is going forward, starting with the Fort Greely portion, prior to preparation of the required EIS.
6. The new BMD program and the MDS Test Bed component were not analyzed in either the 1994 BMD PEIS or the NMD Deployment EIS. The new elements and structure of the BMD program must be analyzed in a supplement to the 1994 BMD PEIS, and a tiered EIS on the MDS Test Bed project must be prepared prior to beginning the first-phase construction of the Fort Greely, Alaska, portion, or any other portions, of the MDS Test Bed.
RELIEF REQUESTED
WHEREFORE, Plaintiffs, having no adequate remedy at law for the unlawful acts and omissions complained of herein, respectfully request that this Court:
(A) Issue a declaratory judgment that Defendants have violated Section 102(2)(C) of NEPA and its implementing regulations by failing to prepare either an EIS analyzing the MDS Test Bed or a supplement to the 1994 BMD PEIS;
(B) Issue a mandatory injunction requiring that Defendants prepare, circulate for comment and consider in their decision-making process, in accordance with § 102(2)(C) of NEPA and its implementing regulations, a supplement to the 1994 BMD PEIS and an EIS on the proposed MDS Test Bed prior to proceeding with the Fort Greely portion, or any other portions, of the new MDS Test Bed;
(C) Retain continuing jurisdiction of this matter until Defendants fully remedy the violations of law complained of herein;
(D) Award Plaintiffs' attorneys' fees, costs, expenses and expert witness fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d); and
(F) Grant Plaintiffs such further relief as appropriate.
Respectfully submitted this 28th day of August, 2001,
____________________________
David E. Adelman (D.C. Bar # 458346)
Natural Resources Defense Council, Inc.
1200 New York Avenue, N.W., Suite 400
Washington, D.C. 20005
Tel. (202) 289-6868
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I, David E. Adelman, hereby certify that I caused a true and correct copy of Plaintiffs' Complaint to be served via registered return mail on the following counsel this day August 28, 2001.
Office of General Counsel
U.S. DEPARTMENT OF DEFENSE
The Pentagon, Room 3E980
Washington, D.C. 20585
Attorney General
U.S. DEPARTMENT OF JUSTICE
1950 Pennsylvania Ave., N.W.
Washington, D.C. 20530
_____________________
David E. Adelman