4 ERC 1932
There is thus no reason to believe that Congress intended to afford the environmentofthe
Trust Territory less protection than that provided for people and places underits jurisdiction in the fiftystates.
[t] Accordingly, it is the conclusion ofthis
court that Congress intended to include the
Trust Territory within the coverage of NEPA.
Specifically, it is held that the term “*Nation”
as used in NEPAincludes the Trust Territory,
and therefore that the actions of defendants
with respect to the PACE project on Enewetak Atoll must conform to the provisions of
NEPA.
The court notes, in passing, that the Department of Defense apparently shares this
court’s view of the scope of NEPA.In its regulations promulgated pursuant to the Act. the
Department has taken the following position:
.. Geographical location of actions. (1)
Environmental statements are requtred for
actions described... {in] this section con-
ducted anywhere in the world, except when
conducted in, or partly in, arcas which are
in or under the jurisdiction of a nation other
than the United States. (Emphasis added).
32 C.F.R. § 214.5(b).
Plaintiffs Have Standing
The gist of the question of standing is
whether the party seeking relief has alleged
such a personal stake in the outcome of the
controversyas to assure that concrete adverseness will occur. See Sierra Club v. Morton,
405 U.S. 727 [3 ERC 2039] (1972); Barlow v.
Collins, 397 U.S. 159 (1970); Plast v. Cohen,
392 U.S. 83 (1968). There is no doubt that the
Enewetakese have such a personal stake in the
outcome of the present litigation.!> It is their
ancestral homeland that is the site of the
PACE project. No group of people are or
could be more crucially affected by the federal
action sought to be enjoined. '4
8 The fact that the Enewetakese have net lived on
the atoil since 1947 does not undercut their stake in
this litigation in light of the Government's decision
to return them by the end of 1973. Moreover, during
their years of exile they have demonstrated a continuing concern with the fate of Enewetak which as-
sures their status as adverse parties.
4 The fact that the Enewetakese are non-resident
aliens does not detract from their standing to sue in
view of this court’s conclusion that NEPA is appli-
cable to the Trust Territory. While it is true that
non-resident aliens are denied standing in situations
where the statute involved evinces such an intent—
as in immigration disputes, see Braude v. Wirtz, 350
F.2d 702 (9th Cir. 1963)—-no such intent is apparent in NEPA. The term “‘citizen”’ is not used in the
statute and the Administrative Procedure Act. one
avenue upon which judicial review is based, is
phrased in terms of “‘any person,” not “any citi-
zen.”’ See 5 U.S.C. § 702. See also, Wilderness So-
People ofEnewetak v. Laird
‘Scope of the Injunction
The remaining issue before the court ts
whether the scope of the preliminary injunction should preclude defendants from continuing the core drilling and seismic studies. It
is argued that these activities should be exempted from the operation of the injunction
because they have no appreciable effect on the
environment, and because they will provide
information of general value, apart from
PACE,to scientists interested in the geology of
coral atoils. With respect to this latter point,
defendants contend that the core drilling and
seismic studies really constitute a separate
project lumped into the PACE program only
because it was administratively convenient to
do so for purposes of funding.
The court must reject defendants’ arguments. Festimony at the hearing clearly established that the primary purpose of the core
drilling and seismic studies ts to further the
PACE program. They are not a separate
project. Moreover, the court is not persuaded
that the core drilling and seismic studies will
have no appreciable impact on the delicate
ecology of Enewetak. The total land area of
the atoll is only 2.24 square statute miles and
any reduction in the amount of arable land isa
serious matter. Finally, the fact that the information produced by these activities may be
valuable to the scientific communityis no justification for avoiding the requirements of
NEPA.
{2] But even assuming arguendo that the
core drilling and seismic studies have no environmental impact, the court must still reject
defendants’ position. NEPA dictafes a truly
objective evaluation of the environmental factors whenever the judiciary ts forced to intervene in the agency decision making process be-
cause of a failure to comply with the
provisions of the statute. While such eval-
uation is taking place, the possibility of project
modification or abandonmentin light of envi-
ronmental considerations can be realistically
accommodated only by suspending all activity
that furthers the project.
This proposition flows principally from
Calvert Cliffs’ Coordinating Committee. Inc.
v. Atomic Energy Commission, 449 F.2d 1109
[2 ERC 1779] (D.C. Cir. 1971), where it was
held that NEPA requires each agencydecision
maker have before him and take into proper
aecount “all possible approaches to a particular project (including total abandonment of
the project) which would alter the environmental impact and the cost-benefit balance.”
449 F_2d at $114_Inlanguage quated with apciety v. Morton, supra n. 2 at 1102; Constructores
Cuntes de Centroamerica, S.A. v. Hannah, 459 F.2d
1183 (D.C. Cir. 1972).
-, *
“
*