The Ground Zero Center for Non-Violent Action (Ground Zero) brought an action challenging the United States Department of the Navy's (Navy) Trident II missile upgrade program (backfit program) at Bangor Submarine Base (Bangor) along Hood Canal in Washington State.[1] Ground Zero asserted that the Navy's backfit program violated both the National Environmental Policy Act (NEPA)[2] and the Endangered Species Act (ESA).[3] After the district court granted summary judgment on all claims, the Ninth Circuit, on appeal, affirmed the district court's judgment. The Ninth Circuit held that NEPA does not apply to presidential directives such as President Clinton's decision to upgrade to Trident II missiles at Bangor. The court also held that the possibility of a catastrophic explosion of the missiles was too remote to trigger an examination of the impacts of an explosion under either NEPA or the ESA.

The Trident II missile is the sixth generation of nuclear weapons arming the Navy's submarine fleet. Bangor was selected in the early 1970s to be one of two home ports for submarines armed with the Trident I missile, predecessor to Trident II. The Navy prepared an Environmental Impact Statement (EIS) in 1974 for the project, which included statements that Bangor could be upgraded to accommodate conversion to a more advanced missile system at a future date. Because the specifications for the final backfit program developed in 1989 varied from the conversion assumptions in the 1974 EIS, the Navy prepared an Environmental Assessment (EA) reviewing the revised project and issued a Finding of No Significant Impact (FONSI).

In 1994, President Clinton issued a Presidential Decision Directive which scaled back the size of the Trident II program and directed the reduced program to proceed at Bangor. After issuance of the President's directive, the Navy reexamined the prior environmental documents and concluded that they provided satisfactory analysis of the scaled-back program without the need for additional review under NEPA. In addition, after the National Marine Fisheries Service (NMFS) listed two species of salmon in Hood Canal and Puget Sound as threatened in 1999, the Navy prepared a series of Biological Assessments which concluded that the backfit program would have no adverse impact on these species.

Ground Zero filed suit in 2001, alleging violations of NEPA and the ESA, and seeking injunctive relief against the backfit program. The district court granted summary judgment to the Navy on all claims, and Ground Zero appealed to the Ninth Circuit. Ground Zero's appeal focused solely on the potential for an accidental explosion of a Trident II missile at Bangor, and the Navy's failure to address this issue in its environmental review.

The Ninth Circuit reviewed the district court's grant of summary judgment de novo, to determine whether, viewing the evidence in the light most favorable to Ground Zero, there were any genuine issues of material fact, and whether the district court correctly applied substantive law.[4] The court reviewed the Navy's decision-making to determine whether it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."[5]

In examining the NEPA issues, the Ninth Circuit reviewed Ground Zero's allegations that the Navy failed to consider the significant environmental impacts which would follow from an explosion of a Trident II or other missile at Bangor. The court determined, however, that the decision to deploy Trident II missiles at Bangor was made by President Clinton, not the Navy. The court held that because NEPA applies to "all agencies of the Federal Government,"[6] and because the President is not included in NEPA's definition of a "federal agency,"[7] NEPA did not apply to a Presidential Decision Directive. The Ninth Circuit was not persuaded by Ground Zero's argument that the backfit program was originally devised by the Navy, not the President, noting that the program did not go forward until "the President made a decision as Commander in Chief to site the Trident II missile arsenal at Bangor, whatever had been recommended by the Navy . . . ."[8]

Despite the determination that NEPA did not apply to President Clinton's directive implementing the Trident II backfit program, the Ninth Circuit held that the Navy maintained sufficient discretion over specific operations and facilities modification issues to warrant NEPA analysis. Ground Zero, however, had focused its arguments on accidental missile explosions. The court rejected Ground Zero's assertions that the Navy did not adequately consider the risks of an accidental explosion. The Navy's expert analysis estimated the risk of an accident leading to an explosion at between one in 100 million and one in one trillion.[9] The court noted that relevant regulations promulgated by the Council on Environmental Quality (CEQ) require only that "federal agencies must examine the 'reasonably foreseeable' environmental effects of their proposed actions when conducting environmental review."[10] The Ninth Circuit held that the probability of explosion was "infinitesimal, and such remote possibilities do not in law require environmental evaluation."[11]

The Ninth Circuit rejected all of Ground Zero's NEPA challenges to the Navy's analysis of explosion probabilities. First, the court discounted Ground Zero's presentation of expert testimony disputing the Navy's risk calculations, noting that "[a]gencies are normally entitled to rely upon the reasonable views of their experts over the views of other experts."[12] The court also held that the Navy's planning for catastrophic explosions in its base design under Department of Defense (DOD) regulations did not mandate NEPA analysis of the risk of explosions, since the DOD regulations required a higher level of risk assessment than NEPA.[13] Finally, the Ninth Circuit rejected Ground Zero's assertion that the CEQ regulations required the Navy to assess "impacts with catastrophic consequences, even if their probability is low," where the Navy's information on such consequences was incomplete or unavailable.[14] The court concluded that the Navy's study provided the necessary information to make a concrete risk determination.

The Ninth Circuit went on to reject Ground Zero's claim that the Navy's actions violated the ESA. Ground Zero asserted that the Navy was required to consult with NMFS regarding potential jeopardy to the Hood Canal and Puget Sound salmon species listed as threatened under the ESA. Because a Presidential directive authorized the backfit program, the Ninth Circuit determined that the Navy had no discretionary control over the project's authorization, and "[w]here there is no agency discretion to act, the ESA does not apply."[15] Mirroring its decision on Ground Zero's NEPA claims centering on the risk of an accidental explosion of a Trident II missile, the court held that the Navy was not required to consult with NMFS regarding the minuscule risk of such an explosion. Thus the Ninth Circuit affirmed summary judgment in favor of the Navy on both the NEPA and the ESA claims.