Hodges v. Abraham , 300 F.3d 432 ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JIM HODGES, Governor of the State 
of South Carolina, in his official
capacity,
Plaintiff-Appellant,
v.
SPENCER ABRAHAM, Secretary of the
Department of Energy, in his
official capacity; UNITED STATES
DEPARTMENT OF ENERGY,
Defendants-Appellees,
and
MEDIA GENERAL OPERATIONS,
INCORPORATED, d/b/a Morning News
(Florence), WBTW, WSPA, WCBD
and WJBF; AIKEN COMMUNICATIONS,
 No. 02-1639
INCORPORATED, d/b/a The Standard
(Aiken); OSTEEN PUBLISHING
COMPANY, INCORPORATED, d/b/a The
Item (Sumter); EAST COAST
NEWSPAPERS, INCORPORATED, d/b/a
Island Packet, d/b/a The Herald
(Rock Hill), d/b/a The Beaufort
Gazette; THE EVENING POST
PUBLISHING COMPANY, d/b/a The Post
and Courier (Charleston); COLUMBIA
NEWSPAPERS, INCORPORATED, d/b/a
The State (Columbia); THE SUN
PUBLISHING COMPANY, INCORPORATED,
d/b/a Sun News; THE NEW YORK

2 HODGES v. ABRAHAM
TIMES COMPANY, d/b/a The Herald- 
Journal (Spartanburg); INDEPENDENT
PUBLISHING COMPANY, INCORPORATED,
d/b/a Anderson Independent-Mail;
LANDMARK COMMUNITY NEWSPAPERS
OF SOUTH CAROLINA, d/b/a The
Lancaster News; JEFFERSON-PILOT
COMMUNICATIONS COMPANY, d/b/a
WCSC; PACIFIC AND SOUTHERN
COMPANY, INCORPORATED, d/b/a
WLTX; THE SOUTH CAROLINA PRESS
ASSOCIATION; SOUTH CAROLINA
BROADCASTERS; ASSOCIATED PRESS;
LEE ENTERPRISES, INCORPORATED,
d/b/a The Times and Democrat,
Parties in Interest,
and 
DAVID R. BLACK, individually and
on behalf of a class of Citizens of
the State of South Carolina; DAVID
G. CANNON, individually and on
behalf of a class of citizens of the
State of South Carolina; HUGH CARL
GOODING, individually and on behalf
of a class of citizens of the State of
South Carolina; EDWARD LEMON,
individually and on behalf of a class
of citizens of the State of South
Carolina,
Movants.
ENVIRONMENTALISTS, INCORPORATED,
Amicus Curiae.

HODGES v. ABRAHAM 3
Appeal from the United States District Court
for the District of South Carolina, at Aiken.
Cameron McGowan Currie, District Judge.
(CA-02-1426-1-22)
Argued: July 10, 2002
Decided: August 6, 2002
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Widener and Judge Niemeyer joined.
COUNSEL
ARGUED: William LeRoy Want, Charleston, South Carolina, for
Appellant. Jeffrey Bossert Clark, Deputy Assistant Attorney General,
Environment and Natural Resources Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON
BRIEF: Stephen P. Bates, OFFICE OF THE GOVERNOR, Colum-
bia, South Carolina, for Appellant. Thomas L. Sansonetti, Assistant
Attorney General, Gregory D. Page, Lisa E. Jones, Environment and
Natural Resources Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; J. Strom Thurmond, Jr., United States
Attorney, Robert F. Daley, Jr., Assistant United States Attorney,
Christie Newman Barrett, Assistant United States Attorney, Colum-
bia, South Carolina; Lee L. Otis, General Counsel, Marc Johnston,
Office of General Counsel, DEPARTMENT OF ENERGY, Washing-
ton, D.C., for Appellees. Ruth Thomas, Pro Se, for Amicus Curiae.
OPINION
KING, Circuit Judge:
Jim Hodges, the Governor of South Carolina, has appealed the June
13, 2002, Order of the district court, which awarded summary judg-
4 HODGES v. ABRAHAM
ment to the United States Department of Energy and its Secretary,
Spencer Abraham (collectively, the "DOE"). Governor Hodges con-
tends that the DOE has failed to comply with the National Environ-
mental Policy Act ("NEPA") in connection with its transfer of surplus
plutonium from Colorado to South Carolina. In response, the DOE
maintains that Governor Hodges lacks standing to pursue this case
and that, in any event, it has complied with the mandate of NEPA. As
explained below, we conclude that, although the Governor possesses
standing to maintain this action, NEPA has not been contravened. We
therefore affirm.
I.
In 1995, the DOE began to consider the issues of whether and how
to close its Rocky Flats Environmental Technology Site near Denver,
Colorado ("Rocky Flats"). In order to carry out such a closing, the
DOE must transfer the plutonium at Rocky Flats to other DOE sites
for storage and eventual disposition.1 As such, the DOE considered
utilizing its Savannah River Site (the "SRS"), located near Aiken,
South Carolina, for the storage and disposition of the Rocky Flats plu-
tonium. It prepared various NEPA compliance documents and materi-
als analyzing and explaining the potential use of SRS for these
purposes. After nearly seven years of study, the DOE announced, in
its April 19, 2002, Amended Record of Decision (the "April 19
ROD"), that six metric tons2 of surplus plutonium will be transferred
from Rocky Flats to SRS for long-term storage.
On May 1, 2002, Governor Hodges initiated this lawsuit, seeking
to enjoin the DOE from shipping the Rocky Flats plutonium into the
Palmetto State. He maintained that the DOE violated NEPA in failing
to properly consider the environmental consequences of its April 19
ROD, and that it had failed to comply with NEPA procedures prior
1
Plutonium is a highly radioactive, metallic element that exists in
approximately fifteen different variations. The explosive triggers (i.e.,
pits) at the core of modern nuclear weapons are largely composed (at
least 93%) of a particular type of plutonium — Plutonium 239. In dis-
cussing this "weapons-grade" plutonium, we refer to it simply as pluto-
nium.
2
A metric ton weighs approximately 2,204.6 pounds.
HODGES v. ABRAHAM 5
to issuance of the ROD. On cross-motions for summary judgment, the
district court rejected the positions of Governor Hodges in their
entirety, and it declined to award injunctive relief against the DOE.3
Hodges v. Abraham, CA No. 1:02-1426-22, Memorandum Opinion
and Order (D.S.C. June 17, 2002) (the "Opinion").4 On appeal, the
DOE contends, for the first time, that Governor Hodges lacks stand-
ing to pursue his claims in this case. Before analyzing the standing
question (which implicates our jurisdiction in this proceeding) and the
merits of Governor Hodges’s appeal, we will review the pertinent
facts and legal principles governing the NEPA issues presented.5
II.
A.
The events giving rise to this dispute began over fifty years ago,
with the advent of nuclear technology and nuclear weapons. During
the Cold War — from the late 1940s to the late 1980s — the United
States and the Soviet Union engaged in a nuclear arms race, and they
produced thousands of nuclear weapons powered by tons of pluto-
nium. Following the demise of the Soviet Union and the end of the
3
After being unsuccessful in district court, Governor Hodges sought an
injunction pending appeal and a stay pending appeal from that court.
When these requests were denied, the Governor sought an injunction
pending appeal in this Court. By Order of June 20, 2002, we denied the
Governor’s request for such an injunction. However, we expedited his
appeal and heard oral argument in Abingdon, Virginia, on July 10, 2002.
4
Acknowledging the urgency of this proceeding, the district court ren-
dered its decision orally from the bench on June 13, 2002, advising that
it would file a written decision shortly thereafter. The court filed its
Opinion on June 17, 2002.
5
Certain national and local media were Parties in Interest in the district
court, in connection with an effort by the DOE to seal certain parts of its
administrative record. On June 14, 2002, the district court granted in part
the DOE’s request to seal. That ruling is not at issue in this appeal. In
addition, several citizens of South Carolina sought to intervene in the dis-
trict court on behalf of themselves and other residents of South Carolina.
The court denied their motion on June 4, 2002, and that ruling is also not
before us.
6 HODGES v. ABRAHAM
Cold War, our country and the post-Soviet government of Russia
acted both bilaterally and unilaterally to reduce their nuclear weapons
stockpiles. In January 1994, they issued a Joint Statement Between the
United States and Russia on NonProliferation of Weapons of Mass
Destruction and Means of their Delivery, which established the
mutual goal of "safe, secure, long-term storage and disposition of sur-
plus fissile materials." In order to demonstrate our nation’s commit-
ment to this goal, President Clinton, on March 1, 1995, unilaterally
announced that a total of 38.2 metric tons of our plutonium was no
longer necessary for defense purposes, and that it therefore consti-
tuted "surplus plutonium."6 In September 2000, the United States and
Russia formally pledged in writing that each would dispose of thirty-
four metric tons of surplus plutonium. Agreement Between the Gov-
ernment of the United States of America and the Government of the
Russian Federation Concerning the Management and Disposition of
Plutonium Designated as No Longer Required for Defense Purposes
and Related Cooperation. Pursuant to this Agreement, each country
committed to "seek to begin operation of facilities [to dispose of the
surplus plutonium] . . . not later than December 31, 2007."
B.
In this country, the responsibility for monitoring, storing, and dis-
posing of nuclear materials, including plutonium, necessarily rests
with the federal Government, specifically the DOE. 42 U.S.C.
§§ 7112(10), 7133(a)(8). Since the President’s 1995 pledge, the DOE
has studied and explored several options aimed at determining the
most effective way to fulfill its responsibility to store and dispose of
our nation’s surplus plutonium. Throughout this effort, the DOE has
been subject to the requirements of NEPA, a statute enacted in 1969
to ensure that environmental concerns play a role in government deci-
sionmaking.
6
The use of the terms "surplus" and "non-surplus" in referring to pluto-
nium have no technical or scientific significance. Surplus plutonium is
that which our Government has determined to be unnecessary for the
national defense, while non-surplus plutonium remains essential.
HODGES v. ABRAHAM 7
1.
NEPA establishes "a national policy of protecting and promoting
environmental quality." Hughes River Watershed Conservancy v.
Glickman, 81 F.3d 437, 443 (4th Cir. 1996). Although NEPA does not
place substantive requirements on federal agencies, it requires them
to follow certain procedures prior to undertaking any "proposed
action," "proposal," or "project" that may affect the environment.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350
(1989). Once the proper NEPA procedures are completed, i.e., "the
adverse environmental effects of the proposed action are adequately
identified and evaluated," a federal agency is entitled to "decid[e] that
other values outweigh the environmental costs." Id. As the Supreme
Court has observed, "NEPA merely prohibits uninformed — rather
than unwise — agency action." Id. at 351.
The purpose of NEPA is two-fold. First, it ensures that an "agency,
in reaching its decision, will have available, and will carefully con-
sider, detailed information concerning significant environmental
impacts." Id. at 349. In other words, NEPA guarantees that an agency
will take "a ‘hard look’ at environmental consequences" before mak-
ing a decision that may affect the environment. Id. at 350 (quoting
Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)). Second, com-
pliance with NEPA procedures "ensures that relevant information
about a proposed project will be made available to members of the
public so that they may play a role in both the decisionmaking process
and the implementation of the decision." Hughes River, 81 F.3d at
443.
Pursuant to Section 102 of NEPA, a federal agency must prepare
an environmental impact statement ("EIS") for every "recommenda-
tion or report on proposals for . . . major Federal actions significantly
affecting the quality of the human environment." 42 U.S.C.
§ 4332(C). The Council on Environmental Quality ("CEQ"), a gov-
ernmental body created by NEPA for the purpose of advising the
President on environmental matters, has promulgated extensive regu-
lations to aid federal agencies in determining whether a proposed
action might significantly affect the quality of the human environ-
ment. 40 C.F.R. § 1500.3 (providing that CEQ guidelines are binding
on all federal agencies); 10 C.F.R. §§ 1021.100-103 (incorporating
8 HODGES v. ABRAHAM
CEQ guidelines into DOE regulations).7 In determining whether an
environmental impact is significant, the CEQ regulations require
agencies to consider both the "context" and the "intensity" of the
potential impact of a proposed action, with the former focusing on the
affected geographical region and its interests, and the latter looking
to the severity of the proposal’s environmental impact. 40 C.F.R.
§ 1508.27. If, in the circumstances, it is unclear whether an EIS is
necessary, the agency is obliged to complete what is known as an
environmental assessment ("EA"), which is a "concise public docu-
ment" reviewing and analyzing whether an EIS is required. 40 C.F.R.
§ 1508.9.
A federal agency’s responsibilities under NEPA do not end with
the preparation of an EIS. If an agency’s plans change, or if the cir-
cumstances surrounding a project are altered, NEPA obligations may
be triggered. As the Supreme Court has observed, "[i]t would be
incongruous with [NEPA’s] approach to environmental protection . . .
for the blinders to adverse environmental effects, once unequivocally
removed, to be restored prior to completion of agency action simply
because the relevant proposal has received initial approval." Marsh v.
Oregon Natural Res. Council, 490 U.S. 360, 371 (1989). The CEQ
regulations mandate that a federal agency prepare a supplemental
environmental impact statement ("SEIS") if "[t]he agency makes sub-
stantial changes in the proposed action that are relevant to environ-
mental concerns," or if "[t]here are significant new circumstances or
information relevant to environmental concerns and bearing on the
proposed action or its impacts." 40 C.F.R. § 1502.9(c)(1). In addition,
the DOE’s regulations for the implementation of NEPA provide that
it "shall prepare [an SEIS] if there are substantial changes to [a] pro-
posal or significant new circumstances or information relevant to
environmental concerns." 10 C.F.R. § 1021.314(a). If it is unclear
whether an SEIS is required in connection with one of its projects, the
DOE is obliged to prepare what is called a supplement analysis
("SA"). 10 C.F.R. § 1021.314(c). Under the DOE’s regulations, an SA
must contain sufficient information for the DOE to determine (1)
7
The CEQ requires each federal agency to adopt its own procedures for
implementing NEPA requirements. 40 C.F.R. § 1507.3. The CEQ’s
NEPA regulations are found at 40 C.F.R., pts. 1500-08, while the DOE’s
regulations implementing NEPA are found at 10 C.F.R., pt. 1021.
HODGES v. ABRAHAM 9
whether an existing EIS should be supplemented, (2) whether a new
EIS should be prepared, or (3) whether no further NEPA documenta-
tion is necessary. 10 C.F.R. § 1021.314(c)(2). In sum, NEPA requires
the DOE, before undertaking a proposed action or altering an existing
one, to examine the environmental consequences thereof.8
2.
In the wake of the President’s 1995 pledge that the United States
would dispose of 38.2 metric tons of surplus plutonium, the DOE
began exploring its options with respect to the storage and disposition
of the surplus plutonium at Rocky Flats. The DOE’s continuing effort
to comply with NEPA included the following statements, analyses,
and records of decision:
• in December 1996, the Storage and Disposition of
Weapons-Usable Fissile Materials Final Programmatic
Environmental Impact Statement (the "1996 PEIS");9
• in July 1998, the Supplement Analysis for Storing Pluto-
nium in the Actinide Packaging and Storage Facility and
Building 105-K at the Savannah River Site (the "1998
SA");
• in November 1999, the Surplus Plutonium Disposition
Final Environmental Impact Statement (the "November
1999 EIS");
• in January 2000, the Record of Decision for the Surplus
Plutonium Disposition Final Environmental Impact
Statement (the "2000 ROD");
8
Under its regulations, DOE is not required to study the environmental
effects of a proposed action when that action fits a categorical exclusion,
i.e., an activity that the DOE has already determined to be environmen-
tally inconsequential. 10 C.F.R. § 1021.410.
9
A programmatic environmental impact statement is a "broad-scope
EIS . . . that identifies and assesses the environmental impacts of a DOE
program." 10 C.F.R. § 1021.104(b).
10 HODGES v. ABRAHAM
• in January 2001, the Amended Record of Decision (the
"2001 ROD");
• in February 2002, the Supplement Analysis for Storage
of Surplus Plutonium Materials in the K-Area Material
Storage Facility at the Savannah River Site (the "2002
SA");
• in April 2002, the Amended Record of Decision (the
April 19 ROD).
We now turn to the contents and conclusions of these NEPA materi-
als.
a.
In December 1996, the DOE issued its 1996 PEIS, which studied
various alternatives for the storage and disposition of this country’s
surplus and non-surplus plutonium. One of the goals of the 1996 PEIS
was the reduction of the number of sites utilized by the DOE as fed-
eral storage facilities for plutonium. Toward that end, the 1996 PEIS
proposed closing Rocky Flats and transferring its plutonium to other
DOE sites. The DOE’s preferred alternative contemplated, inter alia,
the possibility of building three new facilities at SRS and the prompt
transfer of some of the Rocky Flats plutonium to the new SRS facili-
ties. The additional SRS facilities contemplated by the 1996 PEIS
were:
(1) A plutonium storage facility known as the Actinide
Packaging and Storage Facility ("APSF"). The decision to
build APSF had actually been made in 1995, and its original
purpose was to stabilize, package, and store materials
already located at SRS. 60 Fed. Reg. 65,800 (Dec. 12,
1995). The 1996 PEIS, however, proposed modifying the
construction plans for APSF to allow for the receipt of plu-
tonium from Rocky Flats.
(2) A facility that could dispose of surplus plutonium
through "immobilization." The process of immobilization
HODGES v. ABRAHAM 11
calls for surplus plutonium to be placed "in glass or ceramic
material for disposal in a geologic repository pursuant to the
Nuclear Waste Policy Act." 62 Fed. Reg. 3014 (Jan. 21,
1997). In 1996, SRS already had waste-processing facilities
that could be dedicated to immobilization, but the 1996
PEIS contemplated modifying those facilities or construct-
ing new ones to handle the immobilization of some of the
nation’s surplus plutonium.
(3) A facility to convert surplus plutonium into mixed
oxide fuel ("MOX Fuel"). The 1996 PEIS proposed utilizing
a MOX Fuel disposition strategy in conjunction with immo-
bilization, by which surplus plutonium would be mixed with
uranium dioxide and burned "in existing[ ] domestic, com-
mercial reactors, with subsequent disposal of the spent fuel
in a geologic repository pursuant to the Nuclear Waste Pol-
icy Act." 62 Fed. Reg. 3014 (Jan. 21, 1997). As with immo-
bilization, the 1996 PEIS did not rule out simply modifying
existing buildings at SRS to create the MOX Fuel fabrica-
tion facility.
Although the preferred alternative of the 1996 PEIS addressed only
the short-term storage of surplus plutonium at SRS pending its dispo-
sition, the 1996 PEIS also studied other options. One such proposal
was to upgrade the contemplated APSF to handle the long-term stor-
age of surplus plutonium from several DOE sites, including Rocky
Flats, for up to fifty years pending its disposition.
b.
In July 1998, the DOE prepared the 1998 SA, announcing that it
could save the Government approximately $1.3 billion by closing
Rocky Flats in 2006, four years earlier than had been previously con-
templated. Prior to closing Rocky Flats, however, it was necessary for
the DOE to transfer all of that facility’s plutonium to other DOE sites.
This planned plutonium transfer was complicated by the fact that the
APSF, which was to serve as the SRS storage facility for the pluto-
nium from Rocky Flats, was not scheduled to be completed by the
time such plutonium shipments were to commence. The 1998 SA
consequently analyzed whether an existing building at SRS — Build-
12 HODGES v. ABRAHAM
ing 105-K, also known as KAMS ("SRS-KAMS") — could be
expanded and modified for interim storage of the Rocky Flats pluto-
nium for a period of up to ten years. The 1998 SA concluded that
there would be no environmentally significant difference in storing
the Rocky Flats plutonium at SRS-KAMS for up to ten years, rather
than (as the 1996 PEIS had contemplated) at APSF. Thus, in the 1998
SA, the DOE concluded that no further NEPA study or documenta-
tion was necessary with respect to the temporary storage of the Rocky
Flats plutonium at SRS-KAMS.
c.
In its November 1999 EIS, the DOE took the next step in the
NEPA process leading to the present controversy, by examining how
to dispose of up to fifty metric tons of plutonium.10 Specifically, the
November 1999 EIS analyzed the utilization of a "hybrid approach"
to surplus plutonium disposition, whereby thirty-three metric tons of
plutonium would be converted into MOX fuel and seventeen metric
tons would be immobilized. Thereafter, on January 11, 2000, the
DOE issued its 2000 ROD, announcing that it intended to pursue the
hybrid disposition approach studied in the November 1999 EIS. 65
Fed. Reg. 1608 (Jan. 11, 2000). Pursuant thereto, SRS was designated
as the site for both the immobilization facility and the MOX Fuel
facility. The 2000 ROD provided, however, that "[t]he construction
of new facilities for the disposition of surplus U.S. plutonium would
not take place unless there is significant progress on plans for pluto-
nium disposition in Russia." Id. at 1620.
d.
In January 2001, the DOE again altered its plans. In the 2001 ROD,
10
The November 1999 EIS stated that this fifty metric tons included
"[the] 38.2 [metric tons] of weapons-grade plutonium already declared
by the President as excess to national security needs, . . . weapons-grade
plutonium that may be declared surplus in the future, as well as weapons-
usable, reactor-grade plutonium that is surplus to the programmatic and
national defense needs of DOE." The six metric tons from Rocky Flats,
which is at issue in this proceeding, was included in the fifty metric tons
referred to in the November 1999 EIS.
HODGES v. ABRAHAM 13
it abandoned its plan to construct the APSF at SRS, and it instead
decided to modify an existing building at SRS for the interim storage
of surplus plutonium, pending its disposition. 66 Fed. Reg. 7888 (Jan.
26, 2001). As we have noted, the DOE, in its 1998 SA, had contem-
plated storage of the Rocky Flats plutonium at the SRS-KAMS facil-
ity for up to ten years. With the cancellation of the APSF project,
however, the DOE recognized that it might be necessary to store sur-
plus plutonium in the SRS-KAMS facility for a longer period of time,
and it then proceeded to assess the feasability of long-term plutonium
storage at SRS-KAMS. As a result, the DOE issued the 2002 SA. The
DOE therein examined whether the long-term storage of plutonium at
SRS-KAMS created any new environmental impacts not previously
considered in the 1996 PEIS and the 1998 SA, and it determined that
none existed. The DOE therefore concluded that the "safe storage of
surplus plutonium in KAMS can continue beyond 10 years pending
disposition," and that no further NEPA study was necessary. 2002 SA
at 8.
e.
During 2001, the schedule for design, construction, and operation
of the immobilization facility at SRS was delayed indefinitely by bud-
getary constraints. The DOE thereafter announced, inter alia, in its
April 19 ROD: (1) that it was cancelling its plans to immobilize pluto-
nium at SRS; and (2) that SRS-KAMS had been selected as the con-
solidated long-term storage site for the surplus plutonium at Rocky
Flats. 67 Fed. Reg. 19,432 (Apr. 19, 2002). The April 19 ROD also
stated that the prospect of disposing of surplus plutonium by convert-
ing it into MOX Fuel was still under consideration by the DOE and
would be determined after further study. In reaching the decisions set
forth in the April 19 ROD, the DOE expressly relied on the fact that
it had "reviewed the [1996] PEIS and related Supplement Analyses
and . . . determined that the analyses remain valid for the decisions
announced herein." Id. at 19,434. Observing that those analyses had
explored the impact of the long-term storage of plutonium at SRS
generally, and at SRS-KAMS in particular, the DOE concluded that
the environmental effects of the long-term storage of the Rocky Flats
plutonium at SRS-KAMS had been adequately considered. Id. The
DOE therefore determined that it need not perform any further study
of the environmental consequences of its decision. Upon issuance of
14 HODGES v. ABRAHAM
the April 19 ROD, the DOE indicated that it would immediately begin
shipment of the Rocky Flats plutonium to SRS.
C.
On May 1, 2002, Governor Hodges filed his complaint against the
DOE in the District of South Carolina. The Governor sought a declar-
atory judgment that the DOE’s April 19 ROD contravened NEPA,
and he also sought an injunction prohibiting the DOE from transfer-
ring surplus plutonium from Rocky Flats to SRS. Following a hearing
conducted in Aiken on June 13, 2002, the district court orally ruled
against the Governor. In so doing, the court granted the DOE’s
motion for summary judgment and declined to enjoin the DOE’s
transfer of the Rocky Flats plutonium to SRS. Four days later, the
court filed its Opinion, reducing its bench ruling to writing.11
Governor Hodges then filed a timely appeal from the adverse rul-
ings of the district court. He also moved for an injunction pending
appeal, seeking to have us enjoin the DOE from shipping the Rocky
Flats plutonium to SRS during his appeal. By Order of June 20, 2002,
we declined to award the Governor such an injunction, and we expe-
dited this proceeding. On appeal, Governor Hodges maintains that the
DOE failed to comply with NEPA before issuing its April 19 ROD,
and he requests that we enjoin the DOE from shipping the Rocky
Flats plutonium to SRS until the DOE has fulfilled its NEPA obliga-
tions.12 In response, the DOE asserts that Governor Hodges lacks
11
According to media reports issued prior to the district court’s Opin-
ion, Governor Hodges asserted that he would lie down in the highway to
block any shipment of plutonium into South Carolina. After the court
rejected his request for injunctive relief, the Governor issued an execu-
tive order declaring that the "transportation of plutonium on South Caro-
lina roads and highways is prohibited." The court, on June 18, 2002,
issued a permanent injunction against the Governor, prohibiting him
from interfering with the DOE’s plutonium shipments "into or through
South Carolina." Dep’t of Energy v. Hodges, C.A. No. 1:02-2078-22,
Order (D.S.C. June 18, 2002). We are not called on to address any issues
concerning that injunction.
12
In his complaint, Governor Hodges asserts that the April 19 ROD
makes SRS the nation’s long-term storage site for surplus plutonium, and
HODGES v. ABRAHAM 15
standing to initiate and pursue this case, and that it has complied with
NEPA.13
III.
Because our jurisdiction has been called into question, we must,
before turning to the merits of Governor Hodges’s appeal, first exam-
ine whether he possesses the necessary standing to pursue this action.
While the DOE did not raise the issue of standing in the district court,
standing to sue is a jurisdictional issue of constitutional dimensions,
and it may be raised and addressed for the first time on appeal.14 Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95 (1998).
Pursuant to Article III of the Constitution, federal courts may only
adjudicate actual cases and controversies.15 Allen v. Wright, 468 U.S.
he seeks an injunction prohibiting the DOE from shipping "any surplus
plutonium from Rocky Flats or anywhere else to SRS unless and until
DOE complies with applicable law." The April 19 ROD, however, dealt
solely with the shipment and storage of the six metric tons of Rocky
Flats plutonium. As such, we are called on to address only that decision.
13
This dispute does not relate to the storage of nuclear waste at Yucca
Mountain, Nevada. The Yucca Mountain facility is intended to serve as
a permanent repository for spent nuclear fuel and high-level radioactive
waste, while this case involves the storage of surplus weapons-grade plu-
tonium.
14
The DOE initially raised the issue of standing on July 2, 2002, when
it submitted its brief on appeal. Governor Hodges was thereby first able
to respond to the issue in his reply brief of July 5, 2002. In these circum-
stances, interests of professional courtesy and judicial efficiency dictate
that the DOE should have communicated its intention to challenge stand-
ing more promptly. That said, we appreciate the diligence and able assis-
tance of all counsel in this expedited proceeding.
15
The constitutional underpinning of the doctrine of standing to sue is
found in Section 2 of Article III of the Constitution of the United States,
which provides in pertinent part that:
The judicial Power shall extend to all Cases . . . arising under
this Constitution, the Laws of the United States, and Treaties
made . . . under their Authority . . . [and] to Controversies to
which the United States shall be a Party[.]
16 HODGES v. ABRAHAM
737, 750 (1984). The standing doctrine is designed to ensure that fed-
eral litigants possess a sufficiently personal stake in the outcome of
any litigation they pursue. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992); see also Valley Forge Christian College v. Ameri-
cans United for Separation of Church & State, Inc., 454 U.S. 464,
473 (1982) (observing that federal courts are not "publicly funded
forums for the ventilation of public grievances or the refinement of
jurisprudential understanding"). As spelled out by the Supreme Court,
the "irreducible constitutional minimum of standing contains three
elements." Defenders of Wildlife, 504 U.S. at 560. In order to possess
standing to sue, a plaintiff must show (1) that he has suffered an "in-
jury in fact that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical"; (2) that his injury is
"fairly traceable to the challenged action of the defendant"; and (3)
that his injury will likely be redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 180-81 (2000) (quotation and citation omitted); Defenders
of Wildlife, 504 U.S. at 560-61. In this case, Governor Hodges is
plainly capable of satisfying the last two elements of the standing test
enunciated by the Court. The DOE asserts, however, that the Gover-
nor falls short on the first element, because he has not suffered an "in-
jury in fact" as a result of the DOE’s proposed actions.
The DOE contends that Governor Hodges’s sole interest in this
action derives from his responsibility to protect the health and well-
being of the residents of South Carolina, and that this lawsuit is there-
fore a parens patriae action. See Alfred L. Snapp & Son, Inc. v.
Puerto Rico ex rel. Barez, 458 U.S. 592, 600-02 (1982) (observing
that parens patriae suit is one in which state asserts injury to well-
being of its populace). The Supreme Court has clearly established that
a parens patriae action cannot be maintained against the Federal Gov-
ernment. Id. at 610 n.16; Massachusetts v. Mellon, 262 U.S. 447, 485-
86 (1923) ("[I]t is no part of [a state’s] duty or power to enforce their
rights in respect of their relations with the federal government. In that
field it is the United States, and not the state, which represents them
as parens patriae."). As such, if Governor Hodges seeks only to pro-
tect the health and well-being of the residents of South Carolina, his
action is of the parens patriae variety, and it may not be pursued.
Governor Hodges maintains, however, that the interests underlying
his challenge to the DOE are not simply in protecting the well-being
HODGES v. ABRAHAM 17
of South Carolinians. Rather, he contends that he has suffered an
injury to his procedural rights, and that such an injury is sufficient to
provide him with standing to sue. Pursuant to the Court’s decision in
Defenders of Wildlife, a person entitled to a "procedural right," e.g.,
the right to have the Executive observe procedures mandated by law,
can thereby possess Article III standing "without meeting all the nor-
mal standards for redressability and immediacy." 504 U.S. at 572 n.7.
A plaintiff only possesses such standing, however, if "the procedures
in question are designed to protect some threatened concrete interest
of his that is the ultimate basis of his standing." Id. at 573 n.8. In addi-
tion, such an interest must be one that falls within the "zone of inter-
ests" that the challenged statute is designed to protect. Clarke v. Sec.
Indus. Ass’n, 479 U.S. 388, 399 (1987) ("The essential inquiry is
whether Congress intended for a particular class of plaintiffs to be
relied upon to challenge agency disregard of the law.").
Governor Hodges contends that he possesses a "threatened concrete
interest" deriving from his proprietary interest and control, as Gover-
nor, over vast swaths of land and natural resources owned by South
Carolina, including the State’s highways, its streams, and its wood-
lands. In addition, the Governor notes that, under the South Carolina
Pollution Control Act, S.C. Code § 48-1-10 et seq., he bears official
responsibility for preserving the State’s groundwater, and that under
the Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j, he has a similar
duty to preserve and protect public drinking water. Governor Hodges
maintains that these interests are all threatened by the DOE’s unin-
formed shipment of plutonium into South Carolina and its proposed
storage of such plutonium at SRS. He therefore contends that he has
shown a sufficient procedural injury to accord him standing, in his
capacity as Governor, to sue the DOE.
Thus, whether Governor Hodges possesses standing to sue the
DOE turns on whether his asserted proprietary interests in the land,
streams, and drinking water of South Carolina are sufficiently con-
crete to qualify as the bases for a recognized procedural right. As Jus-
tice Scalia observed in Defenders of Wildlife, an individual living next
to the proposed site for a federally licensed dam would possess stand-
ing to challenge a failure to comply with NEPA, while an individual
living across the country from the dam would not possess any such
standing. 504 U.S. at 572 n.7. It is uncontroverted that at least one
18 HODGES v. ABRAHAM
state highway runs through SRS, and that several streams and wildlife
habitats are located near SRS. In these circumstances, the Governor,
in his official capacity, is essentially a neighboring landowner, whose
property is at risk of environmental damage from the DOE’s activities
at SRS. Governor Hodges therefore has a concrete interest that NEPA
was designed to protect; as such, he is not merely pursuing a parens
patriae action, and he possesses the requisite standing to enforce his
procedural rights under NEPA.
Because Governor Hodges has standing to initiate and maintain his
NEPA challenges to the DOE’s actions, we possess jurisdiction, pur-
suant to 28 U.S.C. § 1291, to consider his appeal. We therefore turn
to the merits thereof.
IV.
We review de novo an award of summary judgment by a district
court. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). In reviewing
an agency’s efforts to comply with NEPA, we are required to perform
a two-step analysis. First, we examine whether the agency took a
"hard look" at a proposed project’s environmental effects before act-
ing. Hughes River Watershed Conservancy v. Glickman, 81 F.3d 437,
443 (4th Cir. 1996). In essence, we assess whether "the adverse envi-
ronmental effects of the proposed action [have been] adequately iden-
tified and evaluated" prior to final decisionmaking. Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). If we are
satisfied that the agency has taken the mandated "hard look" at the
environmental effects of a proposed agency action, we must then con-
sider whether the agency’s conclusions are arbitrary or capricious.
Hughes River, 81 F.3d at 443. Thus, in conducting our NEPA inquiry,
we must "make a searching and careful inquiry into the facts and
review whether the decision [of the agency at the time it was made]
was based on consideration of the relevant factors and whether there
has been a clear error of judgment." City of Alexandria v. Fed. High-
way Admin., 756 F.2d 1014, 1017 (4th Cir. 1985) (internal quotations
and citations omitted). If the agency has followed the proper proce-
dures, and if there is a rational basis for its decision, we will not dis-
turb its judgment.
HODGES v. ABRAHAM 19
V.
In his assertion that the DOE failed to comply with NEPA, Gover-
nor Hodges raises three separate contentions. Two of these conten-
tions are of a substantive nature, while the third involves a procedural
point. First, he maintains that the 2002 SA failed to fully evaluate the
risks of long-term storage of surplus plutonium at SRS-KAMS. Sec-
ond, the Governor contends that the 2002 SA only considered the
potential effects of storing plutonium at SRS-KAMS for up to twenty
years, rather than evaluating the fifty-year storage period selected by
the DOE in its April 19 ROD. Finally, as a procedural matter, the
Governor asserts that the DOE failed to complete the required NEPA
documents before issuing the April 19 ROD.
A.
Before proceeding to address the specific contentions of Governor
Hodges, it bears emphasizing that NEPA is an "action-forcing" stat-
ute. It requires federal agencies to identify and evaluate the environ-
mental consequences of their proposed actions. Robertson, 490 U.S.
at 350; Hughes River, 81 F.3d at 443. Under NEPA, an agency is
obliged to take a "hard look" at a proposal’s environmental conse-
quences before deciding to proceed; however, once it has taken such
a look, the agency is not obligated to choose any particular course of
action. Robertson, 490 U.S. at 350. Moreover, if the agency has taken
the required "hard look," we must defer to it unless its decisions were
arbitrary or capricious. Hughes River, 81 F.3d at 443. Therefore, in
assessing the merits of Governor Hodges’s contentions, we must con-
sider whether the DOE adequately identified and evaluated, prior to
its April 19 ROD, the environmental consequences of storing the
Rocky Flats plutonium at SRS-KAMS. If we conclude that the DOE
acted properly in that connection, we must then determine whether
the decisions it premised on that analysis were arbitrary or capricious.16
16
The DOE asserts that its decisionmaking with respect to the storage
and disposition of plutonium implicates foreign policy and national
security concerns. As such, it contends that our review of the NEPA
compliance issues should be more deferential than our normal standard
of review. See Envtl. Defense Fund, Inc. v. Massey, 986 F.2d 528, 535
20 HODGES v. ABRAHAM
In most instances, the DOE will discharge its NEPA responsibility
to take a "hard look" at potential environmental consequences by
completing, prior to undertaking a proposed action, either an EIS, an
SEIS, an EA, or an SA. However, in order to make an "initial deter-
mination about whether a change or new information meets the
threshold of ‘significance’ or ‘uncertainty’ needed to require further
environmental documentation," the DOE may also review and con-
sider previously-issued NEPA documents. See Piedmont Envtl. Coun-
cil v. United States Dep’t of Transp., 159 F. Supp. 2d 260, 270-71
(W.D. Va. 2001). In essence, the DOE is entitled to conduct a prelim-
inary inquiry into whether the environmental impact of a change in
an existing proposal is even possibly significant. If the DOE con-
cludes, based on such a preliminary inquiry, that the environmental
effect of the change is clearly insignificant, it has taken the "hard
look" required by NEPA, and no further NEPA documentation is nec-
essary. See Idaho Sporting Congress Inc. v. Alexander, 222 F.3d 562,
566 (9th Cir. 2000) (concluding that agency may use "non-NEPA
environmental evaluation procedures" to determine "whether new
information or changed circumstances require the preparation of a
supplemental EA or EIS"); Price Rd. Neighborhood Ass’n v. United
States Dep’t of Transp., 113 F.3d 1505, 1510 (9th Cir. 1997). The
DOE’s authority to conduct such a review is limited; it may only con-
duct such a preliminary inquiry to determine whether it is possible
that the altered proposal’s environmental impact will be significant.
Idaho Sporting Congress, 222 F.3d at 566. If "the environmental
impacts resulting from the design change are significant or uncertain,
as compared with the original design’s impacts," then the DOE must
complete additional NEPA documentation. Price, 113 F.3d at 508-09.
(D.C. Cir. 1993); cf. Hamdi v. Rumsfeld, No. 02-6895, slip op. at 5 (4th
Cir. July 12, 2002) ("[I]n the context of foreign relations and national
security . . . a court’s deference to the political branches of our national
government is considerable."). As the D.C. Circuit has explained, the
Government, in such circumstances, "may avoid the EIS requirement
where U.S. foreign policy interests outweigh the benefits derived from
preparing an EIS." Id. Because we are satisfied, applying our normal
standard of review, that the DOE did not contravene NEPA, we need not
consider whether foreign policy and national security considerations war-
rant some heightened deference to the DOE’s decisions.
HODGES v. ABRAHAM 21
B.
In his first contention on the merits, Governor Hodges maintains
that the DOE failed to adequately consider the risks of long-term stor-
age of the Rocky Flats plutonium at SRS-KAMS. Contrary to his
position, however, the 2002 SA evaluated whether the long-term stor-
age of surplus plutonium at SRS-KAMS would create any environ-
mental consequences not considered by the DOE in its earlier NEPA
compliance documents. In performing this evaluation, the 2002 SA
explicitly incorporated the DOE’s 1996 PEIS and its 1998 SA, as well
as other NEPA materials relating to the potential environmental
effects of surplus plutonium being shipped into South Carolina and
stored at SRS. See 40 C.F.R. § 1502.21 (permitting incorporation of
materials by reference to "cut down on bulk without impeding agency
and public review of the action"). By its 1996 PEIS, the DOE had
examined various options for the long-term storage of surplus pluto-
nium, including its possible storage at the proposed APSF facility at
SRS for up to fifty years. And the 1998 SA had explored whether
temporary storage of the surplus plutonium at SRS-KAMS, for a
period of up to ten years, would create any environmental conse-
quences not contemplated in the 1996 PEIS. In the 2002 SA, the DOE
examined whether storage of surplus plutonium at SRS-KAMS for a
period longer than ten years would create any additional impacts on
the environment or would increase the risk of a nuclear accident. 2002
SA at 5-6. After performing this evaluation, the DOE concluded in
the negative, stating that:
The potential impacts from the storage of surplus plutonium
materials in the KAMS facility at SRS, pending final dispo-
sition, are not significantly different than or are bounded by
the impacts identified in the [1996 PEIS].
Id. at 8 (emphasis added).
In view of the foregoing, Governor Hodges has failed to identify
any particular risk arising from the long-term storage of surplus pluto-
nium at SRS-KAMS that was not addressed by the 2002 SA or the
NEPA materials incorporated by reference therein. As such, we must
conclude that the DOE, in the 2002 SA, fulfilled its NEPA obligations
22 HODGES v. ABRAHAM
by taking a "hard look" at the risks of long-term plutonium storage
at SRS-KAMS.
C.
Governor Hodges next contends that the 2002 SA only contem-
plated storage of the Rocky Flats plutonium at SRS-KAMS for a
period of twenty years, rather than for a period of fifty years. In sup-
port of this contention, he points to its statement that the "DOE plans
to [dispose of] its surplus plutonium as soon as practical and believes
storage in KAMS would be necessary for less than 20 years." Id.Although this provision suggests that the DOE hoped (and perhaps
continues to hope) to dispose of the surplus plutonium within twenty
years, this isolated statement, standing alone, does not resolve the
question of whether the DOE had analyzed the potential environmen-
tal consequences of plutonium storage at SRS-KAMS for a longer
period. Indeed, the 2002 SA specifically analyzed the environmental
impact of plutonium storage at SRS-KAMS for up to fifty years. See
id. at 5-6 ("For the SRS workforce, storage operations at KAMS will
add 0.13 Latent Cancer Fatality (LCF) for up to 50 years . . . .").
Moreover, and importantly, the 2002 SA incorporated the 1996 PEIS
into its assessment and findings, and it explicitly compared the 1996
PEIS’s study of long-term storage of surplus plutonium at APSF (for
up to fifty years) with the DOE’s new plan to store the plutonium at
SRS-KAMS. We therefore find ourselves in agreement with the dis-
trict court, which concluded after careful analysis that "it is clear that
the fifty-year impacts of storage in general, and storage at KAMS, in
particular, were examined." Opinion at 26.
D.
Governor Hodges’s final contention on appeal is that, even if the
DOE substantively examined the environmental effects of its pro-
posed action, it failed to comply with NEPA’s procedures in connec-
tion with its April 19 ROD. As the district court properly observed,
"the April 19 ROD decouples storage and disposition, taking away a
precondition to storage of Rocky Flats plutonium at SRS which had
been found in all prior RODs (approval of SRS for the immobilization
facility)." Id. at 23. The Governor asserts that this change in the
DOE’s proposal — from storage at SRS-KAMS pending disposition
HODGES v. ABRAHAM 23
to storage at SRS-KAMS without regard to disposition — required
the DOE to prepare and file another NEPA compliance document,
such as an SA. He maintains that the DOE was required to examine
whether this change in its proposal created any significant environ-
mental impacts not previously studied, and that it had therefore failed
to take a "hard look" at the environmental consequences of its April
19 ROD.
In fact, however, the DOE properly explored, prior to issuance of
the April 19 ROD, whether the decoupling of plutonium storage from
plutonium disposition created any new environmental concerns. The
April 19 ROD specifically referenced those earlier NEPA compliance
materials, and it explained the analyses they had made. After noting
that the 1998 SA had analyzed the impact of storage of the Rocky
Flats plutonium at SRS-KAMS for a period of ten years, the April 19
ROD made the following pertinent observation:
[T]he storage of surplus plutonium in the KAMS facility
could extend beyond the 10-year period estimated in [the
1998 SA]. Therefore, DOE prepared [the 2002 SA] . . .
which evaluated the potential for storage beyond 10 years at
the KAMS facility. That SA concluded that potential
impacts from the continued storage of surplus plutonium in
the KAMS facility at SRS for this additional period are not
substantially different from those addressed in the original
analysis of storage in APSF contained in [the 1996 PEIS].
67 Fed. Reg. 19,434 (Apr. 19, 2002). As this provision makes clear,
the DOE, prior to issuing its April 19 ROD, conducted a preliminary
inquiry by examining its previous NEPA documents, and it concluded
that its decision to decouple the storage of surplus plutonium from the
disposition clearly did not create any significant environmental
impacts. Idaho Sporting Congress, 222 F.3d at 566; Piedmont Envtl.
Council, 159 F. Supp. 2d at 270-71. As such, because it was apparent
that the proposed change did not create a new environmental picture
from that previously studied, the DOE decided that no further NEPA
documentation was necessary. In these circumstances, we are satisfied
that the DOE took a "hard look" at the environmental consequences
of its proposed course of action prior to promulgating its April 19
ROD. Idaho Sporting Congress, 222 F.3d at 566 (recognizing limited
24 HODGES v. ABRAHAM
role for non-NEPA environmental evaluation procedures to determine
whether supplemental EA or EIS is required). Therefore, because the
DOE has complied with the requirements of NEPA, and because its
decision to place the Rocky Flats plutonium in long-term storage at
SRS-KAMS was neither arbitrary nor capricious, we will not disturb
it.17
VI.
Pursuant to the foregoing, Governor Hodges’s NEPA challenge is
without merit and the district court’s award of summary judgment to
the DOE is affirmed.
AFFIRMED
17
Governor Hodges also maintains that the DOE’s decisionmaking pro-
cess violated the Administrative Procedure Act (the "APA"). Under the
APA, we must uphold an agency decision if it is supported by "substan-
tial evidence," and is not "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." 5 U.S.C. § 706(2)(A), (E). In con-
ducting our review under the APA, "we perform only the limited, albeit
important, task of reviewing agency action to determine whether the
agency conformed with controlling statutes, and whether the agency has
committed a clear error of judgment." Maryland Dep’t of Human Res. v.
United States Dep’t of Agric., 976 F.2d 1462, 1475 (4th Cir. 1992)(inter-
nal quotations and citations omitted). In view of the DOE’s compliance
with NEPA, the Governor’s APA challenge is also without merit.