DocketNumber： Nos. 86-1458, 86-1517
Citation Numbers： 847 F.2d 445, 1988 WL 48037
Judges： Arnold, Bowman, Bright, Fagg, Gibson, Heaney, Lay, Magill, McMillian, Wollman
Filed Date： 5/18/1988
Status： Precedential
Modified Date： 11/4/2024
I. OVERVIEW
In this case, the Court sitting en banc reconsiders the challenges of the state of Colorado and various environmental organizations to the adequacy of an environmental impact statement submitted by the Department of the Air Force. The statement was filed in conjunction with the proposed deployment of MX missiles in former Minuteman III missile silos in Colorado and Nebraska. We reverse the district court’s finding that the claims were barred by the political question doctrine. We hold that section 110 of the Department of Defense Authorization Act, 1984, Pub.L. No. 98-94, § 110, 97 Stat. 614, 621-22 (1983) (DAA 1984), requiring the Air Force to file an environmental impact statement (EIS) applies to all of the MX missiles authorized for deployment by Congress. Because this provision defines the scope of the required EIS in terms of the “proposed deployment and peacetime operation of the MX missiles in the Minuteman silos,” we further hold Colorado’s claims relating to the environmental impact of the MX missile project, as well as the claims of the environmental groups concerning the environmental impact of peacetime operations, can be heard in federal court. In this light, we order the district court to review these claims with all the rigor and scrutiny required by law. However, the claims of the environmental groups urging that the EIS include a discussion of alternative weapons systems, alternative basing modes, and the potential wartime use of the missiles fall outside of the terms of the statute. We thus find the federal courts without power to consider these matters.
A. Statutory History of MX Missile Program
The nuclear defense of the United States is based upon a “strategic triad.” The first leg of this triad consists of submarine launched ballistic missiles, the second centers on an airborne nuclear strike force, and the third on land-based intercontinental ballistic missiles. The MX missile project is part of an effort to modernize the third leg of the triad by developing and deploying a more advanced, accurate, and powerful land-based nuclear missile system.
By the late 1970’s, it appears that Congress and the Executive had agreed in principle to modernize the land-based component of the triad by the deployment of the MX missile. The exact mode in which these weapons would be deployed, however, was hotly contested throughout the late 1970’s and early 1980’s. After a series of disagreements between the two branches, Congress enacted the “Jackson Amendment” to the Department of Defense Authorization Act, 1983, Pub.L. No. 97-377, 96 Stat. 1830, 1833, 1846-49 (1982), which required the President to submit a detailed technical report discussing alternative basing and weapons systems and conditioned funding of the missile project on explicit congressional approval of the President’s proposals.
Following the directives set forth by the Jackson Amendment, the President created the Scowcroft Commission to examine possible alternative basing modes. After extensive study, the Commission recommended that 100 MX missiles replace aging Minuteman III missiles in existing silos.
In response, Congress enacted section 110 of DAA 1984. This section provided for the procurement of not more than 21 MX missiles to be deployed in the manner recommended by the President’s report. Additionally, the law required the Secretary of the Air Force to prepare an environmental impact statement “in accordance with all terms, conditions, and requirements of the National Environmental Policy Act of1969 [42 U.S.C. §§ 4321-4370 (1983) (NEPA)] on the proposed deployment and peacetime operations of MX missiles in the Minuteman silos * * * ” (emphasis added).
Subsequently, in 1985 Congress provided for the purchase of 21 additional missiles. In doing so, it did not specifically provide any additional directives concerning compliance with NEPA or concerning where and how these missiles would be based. See Department of Defense Authorization Act, 1985, Pub.L. No. 98-525, § 110, 98 Stat. 2492, 2504, 2506 (1984) (DAA 1985).
In 1986, Congress provided funds for 12 more missiles. Again, the legislation did not make explicit reference to compliance with NEPA or to the basing mode of the new missiles. It did, however, declare that not more than 50 of the MX missiles could be placed in Minuteman silos. In addition, it stated that, unless another basing mode was specifically approved by Congress, deployment of additional missiles was prohibited and further procurement was limited to those necessary to support testing programs for the MX. See Department of Defense Authorization Act, 1986, Pub.L. 99-145, § 141, 99 Stat. 583, 603-604 (1985) (DAA 1986). In 1987, the Congress authorized funds for 12 additional missiles for testing, bringing the total to 66. See Department of Defense Authorization Act 1987, Pub.L. No. 99-661, § 103, 100 Stat. 3816, 3826 (1986) (DAA 1987).
On October 7, 1983, the Secretary of Defense issued a draft EIS for all 100 missiles proposed by the President for eventual deployment. After a 45-day pub-
B. The Proceedings Below
In separately filed complaints consolidated in the district court below, the Governor of Colorado and various counties and municipalities in the State of Colorado (collectively “Colorado”), together with Western Solidarity Inc., Friends of the Earth, Inc., Committee for a Sane Nuclear Policy, Council for a Liveable World, and Environmental Action, Inc. (collectively “environmental groups”) brought suit against the Secretary of Defense, the Secretary of the Air Force, and the President of the United States (collectively “the Air Force”) challenging the adequacy of the MX missile project’s EIS.
Colorado first claims that the EIS filed by the Air Force failed to come to terms with the environmental impact of the project upon the state of Colorado. In this regard, it claims it was improperly excluded from “meaningful involvement” in the EIS hearings conducted by the Air Force. Second, it asserts that the EIS did not adequately consider the effect of the MX project on Colorado’s water supply. Third, it alleges that the Air Force did not adequately consider several potentially detrimental consequences of the project on the health and safety of Colorado citizens. Fourth, it maintains that the Air Force did not adequately discuss the impact of placing MX missiles on an active geological fault zone. Fifth, Colorado claims that the Air Force did not properly explore the potential impact of the project on employment, housing, land use, and public services within the state. Sixth, it maintains that the EIS failed to discuss the impact of the project on the state’s endangered species. Finally, Colorado asserts that the implications of transportation, storage, and construction of missile components within the state were never examined. Nor, it claims, were the environmental consequences of defensive measures likely to accompany the project, such as the “superhardening” of former Minuteman silos and/or the introduction of a protective anti-ballistic missile system, ever taken into account.
The environmental groups also allege that the Air Force EIS failed to meet the requirements of NEPA. First, these groups maintain that the EIS failed to discuss adequately the environmental impact of the MX missiles in case of accidents, including here the impact of accidental launch and natural disasters, such as earthquakes. Second, they assert the EIS did not discuss the environmental impact of the (intentional or wartime) use of the missiles. Third, they claim the EIS failed to discuss the full range of alternatives required by NEPA, including alternative defense systems to the MX and alternative basing modes for the missile.
It is important to note that neither Colorado nor the environmental groups challenge the substantive strategic decisions concerning the deployment of the missiles, but rather simply wish to secure an EIS which meets the requirements prescribed by Congress.
Both Colorado and the environmental groups request declaratory relief as well as mandatory and prohibitory injunctions. Specifically, both groups seek a declaration that the EIS failed to comply with NEPA and that the Air Force’s action in proceeding with the project in light of the EIS’s deficiencies violated NEPA and the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1982). Further, both groups request an order requiring the Air Force to prepare a satisfactory EIS. In addition, Colorado requests the Court to order the Air Force to implement appropriate measures to mitigate impacts in the state. Finally, both appellants request a prohibitory injunction enjoining the continuation of activity on the MX missile project until the Air Force com
In Western Solidarity, Inc. v. Reagan, CV84-L-280, slip op. (D.Neb. Feb. 20, 1986), the district court dismissed the consolidated suits on the pleadings. It found that all the claims were barred under the political question doctrine. The court declared that it lacked “judicially discoverable and manageable standards” for resolving the issue. Id. at 6. Second, it found that the relief requested would “directly impinge on the foreign policy and military preparedness of the country,” and thus involved decisions textually committed by Articles I and II of the Constitution to coordinate branches of government. Id.; see also Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962).
On appeal, in Lamm v. Weinberger, No. 86-1458, slip op. (8th Cir. May 21, 1987), a panel of this Court reversed the district court. It found the question of whether the Air Force EIS met the requirements of NEPA justiciable under the political question doctrine. Next, the panel declared that the MX missile project was, even in the absence of section 110 of DAA 1984, independently subject to NEPA. Id. at 11 n. 9. In this regard, the panel found that the language of section 110 limited rather than created review for compliance under NEPA. Third, it found that section 110 did not represent a comprehensive or “programmatic” blue-print for deployment of the MX missiles authorized by Congress under the 1984, 1985 and 1986 Defense Authorization Acts, but only applied to the first 21 MX missiles authorized by the Congress in DAA 1984. These fundamental assumptions led the panel to a complex multi-tiered holding in which each MX missile authorization by Congress was viewed in isolation for purposes of reviewing compliance of the Air Force EIS with NEPA.
The panel held all of Colorado’s claims under NEPA were justiciable. In terms of the claims of the environmental groups, however, the holding was a good deal more complex. First, the panel found that the environmental groups’ claims involving accidents such as earthquakes and accidental launches were fully justiciable. Next, the panel found claims involving assessment of the impact of intentional use of the MX non-justiciable as to the 21 missiles authorized by section 110 of DAA 1984. However, the panel found these claims to be fully reviewable as to the 79 remaining missiles authorized by the 1985 and 1986 Acts or proposed by the President. Third, the panel found the claims involving the need to discuss alternative basing modes non-justiciable in terms of the first 21 missiles authorized to be placed in Minuteman III silos by the 1984 Act, but reviewable as to the remaining 79 missiles. Finally, in terms of the requirement of discussing alternative weapons systems, the panel found these claims were not reviewable as to the first 54 missiles authorized by the 1984, 1985, and 1986 Acts, but justiciable as to the rest of the missiles proposed by the President.
The panel held that declaratory and mandatory remedies were proper concerning all of the missiles either authorized or proposed. The panel then found that prohibitory relief was barred in terms of the first 21 missiles authorized by the 1984 Act because of language in section 110 declaring that the Air Force “shall proceed promptly following the publication of the final environmental impact statement ... with the deployment of MX missiles in the missile silos.” The panel, however, stated that prohibitory relief was available for the rest of the 79 missiles that had been authorized or proposed.
III. DISCUSSION
A. Section 110 of the Department of Defense Authorization Act, 1984 Defines the Environmental Impact Statement Requirements for All Missiles Authorized for Deployment by Congress.
1. Overview.
Section 110 of DAA 1984 limits the EIS requirements for MX missiles to their proposed deployment and peacetime operations in former Minuteman silos. All parties concede that these requirements apply to the first 21 missiles authorized by the 1984 Act. Essential to resolution of this case, however, is the determination of whether these requirements represent a comprehensive or “programmatic” decision concerning the missiles authorized by Congress for deployment in the 1984, 1985, and 1986 Defense Authorization Acts.
The Air Force forcefully contends that section 110 of DAA 1984 represents a programmatic decision for the entire MX program and thus defines the requirements for an EIS in terms of all missiles authorized by Congress. In response, the environmental groups assert that the MX project is, even apart from the language of section 110 of DAA 1984, independently subject to NEPA. Moreover, they contend that there was no one single comprehensive deployment decision concerning the placement of the MX in the former Minuteman missile silos. Rather, they maintain the procurement, and thus the basing mode, decisions were sequential and independent ones in which Congress intended to reevaluate the entire project with each appropriation. Most importantly, they maintain that in this sequential policy, Congress left open to complete reevaluation the question of what level of environmental compliance would be required for the project.
Based upon careful examination of the statutory language and legislative history of the 1983,1984,1985,1986, and 1987 Defense Authorization Acts, we find that section 110 of DAA 1984 represents a programmatic decision concerning all the missiles authorized for deployment.
2. Discussion.
In the early 1980’s, the question of how the MX missile was to be based was the subject of exhaustive and contentious debate within Congress and particularly between Congress and the Executive Branch. Early on, because of the size and importance of the MX project, Congress injected itself into the basing mode decision by conditioning the expenditure of funds first on receipt of a presidential report concerning the basing decision and later on specific congressional approval of executive basing mode proposals.
In section 103(c) of the Department of Defense Authorization Act, 1983, Pub.L. No. 97-252, § 103(c), 96 Stat. 718, 720 (1982) (DAA 1983), Congress authorized $158,000,000 as an initial appropriation for the basing and deployment of the MX but declared that such money could not be obligated (i.e. released to the Executive Branch) “until the President completes his review of alternative MX missile system basing modes and notifies the Congress, in
On November 22, 1982, President Reagan responded by proposing a system of deployment termed “closely spaced basing” or “dense pack” in which the weapons would be placed in a closely grouped array of “superhardened” silos under the control of the F.E. Warren Air Force Base. Congress acrimoniously rejected this proposal. Moreover, in response, it injected itself even more deeply into the decision-making process concerning the selection of a basing mode for the MX missile.
The “Jackson Amendment” to DAA 1983 required the President to submit an extremely detailed technical report discussing alternative basing modes and alternative weapons systems and forbade expenditures appropriated under the Act until “fenced” expenditures were released by concurrent resolutions of both Houses of Congress, signalling specific approval of the President’s proposal.
The reporting requirement, at the heart of the Jackson Amendment, required the President to examine alternative potential basing modes and alternative weapons systems exhaustively. First, it required the President to submit a report to the Committees on Appropriations and Armed Services of the Senate and the House of Representatives which included a detailed assessment of: (1) the closely spaced basing system; (2)other MX basing systems that might serve as alternatives to the closely spaced basing system; and (3) different types of intercontinental ballistic missiles that might serve as alternatives to the MX.
Second, the Jackson Amendment required a “comparative detailed technical assessment” of the following alternative weapons configurations:
(1) acceleration of the Trident II program to provide target coverage equivalent to that of the MX missile system;
(2) enhancements and improvements to the Minuteman missile force;
(3) development and deployment of a land-based missile system in deep underground basing;
(4) development of a system based on multiple protective shelters and closely spaced basing incorporating mobility and deception;
(5) a road mobile missile smaller than the MX; and
(6) a common missile for land and sea deployment.6
(1) the military capability of each alternative system or missile;
(2) the survivability of each alternative system or missile;
(3) the survivability of each such system or missile against current and projected Soviet threats;
(4) the impact each such system or missile might have on present and future arms control negotiations;
(5) the geographic, geological, and other qualifications a site for each such system or missile would likely require;
(6) the environmental impact each such system or missile would likely have;7 and
(7) the identification of possible sites for each such system or missile.8
In order to produce a report that complied with the requirements of the Jackson Amendment, the President created the Scowcroft Commission. See Exec. Order No. 12, 400, 3 C.F.R. 147 (1983). This Commission, led by retired General Brent Scowcroft, consisted of presidential appointees having expertise in “national security, strategic forces and the foreign relations of the United States.” Id.
On April 6, 1983, the Commission issued its report. Based on the extensive review of alternative weapons systems and basing modes required by the Jackson Amendment, the Commission recommended that MX missiles replace aging Minuteman III missiles in existing silos for the short term. It recommended the Minuteman ultimately be replaced by a small single warhead missile that had not yet been designed.
In a letter to the chairmen of the House and Senate Appropriation Committees, the President announced that he strongly supported the recommendations of the Scow-croft Commission. Accompanying his letter was a classified report which recommended “the immediate production of the [MX] missile and deployment of 100 such missiles in existing Minuteman silos in the Francis E. Warren [Air Force Base] area.” Specifically, the President directed that these missiles replace the Minuteman missiles in the 319th and 400th Strategic Missile Squadrons.
Shortly thereafter, on September 24, 1983, Congress enacted section 110 of DAA 1984. This provision authorized procurement of 21 MX missiles to be placed in “existing Minuteman missile silos that are part of the 319th and 400th Strategic Missile Squadrons and supported by the Francis E. Warren Air Force Base, Wyoming.” Clearly, Congress, by adopting the same weapons system, basing mode, and even the precise basing location, had accepted, at least at the outset, the recommendation of the President and the Scowcroft Commission in its entirety.
DAA 1984 also required the Air Force to prepare an environmental impact statement, in full compliance with the requirements of NEPA, limited, however, to “proposed deployment and peacetime operation of the MX missiles in the Minuteman silos.”
The Secretary of the Air Force shall prepare a full draft and final environmental impact statement in accordance with all terms, conditions, and requirements of the National Environmental Policy Act of 1969 (42 U.S.C. see. 4321 et. seq.) on the proposed deployment and peacetime operations of MX missiles in the Minuteman silos * * *.
The dissent argues that the prepositional phrase “on ‘proposed deployment... in ... silos’ ” is not intended to limit the scope of the required EIS. See dissent at 467. Moreover, it continues, even if the phrase is ambiguous and could be construed as a limitation, NEPA requires that ambiguous language be construed in favor of providing EIS coverage. See 42 U.S.C. § 4332(1).
We believe, however, that the phrase, when read in its entirety, (i.e. “on the proposed deployment and peacetime operations of the MX missiles in the Minuteman silos”) is clearly intended to limit the scope of the EIS. First, if the phrase is not a limitation, we do not understand how it is to be construed.
Next, section 1231(c) of DAA 1984 required the Secretary of Defense to submit a report to the Armed Services Committees of both Houses of Congress each year from 1984 through 1988 on the progress being made in terms of both the “development and deployment of the MX missile” and of improvements being made in “silo hardening technology.”
At the outset, it might be argued that this information concerning silo hardening technology indicated congressional indecision about the Minuteman silo basing mode. Given the context of the exhaustive reporting requirements of the Jackson Amendment and the explicit congressional withholding of funds accompanying that measure, however, it seems very likely that the informal, unrestrictive requirements of section 1231 had only an information gathering intent.
On the other hand, this language indicates that Congress, from the very first MX appropriations measure, considered the
*454 (C) on developments related to silo-hardening technology.
It is important to note that section 110(b) of DAA 1985 provided that no funds appropriated for the 21 additional missiles it authorized could be obligated for the procurement of additional operational MX missiles unless: (a) the President submitted a special report discussing aspects of the ongoing MX program; and (b) this report was specifically approved by a complex system of joint resolutions of both Houses of Congress.
(1) whether “further acquisition of MX is in the national interest and consistent with arms control policy,”
(2) the findings “of the President concerning the effect of acquisition and deployment [of the MX] on the vulnerability of the United States land-based intercontinental ballistic missile force,” and
(3) “the basing mode for the MX missile (and related improvements in silo-hardening technology).”13
This reporting requirement concerning the basing mode for MX is likely the most problematic congressional action in terms of establishing a programmatic decision. Yet, if the statute is read closely, it is clear that Congress is only asking for a discussion of among other things the present basing mode of the missile. It is not asking for discussion of alternative basing modes, nor is it suggesting in any specific way that there is or ought to be any fundamental basing mode change. Thus, again, in light of the detailed reporting request and specific congressional approval requirements of the Jackson Amendment, it is unlikely that Congress meant to open up the basing mode debate again in such an informal manner and with such vague directions to the President.
We believe both of these reporting requirements established by DAA 1985, in the context of the requirements of the Jackson Amendment, to be merely congressional requests for information. Moreover, we believe that such continued requests are evidence that Congress considered its appropriation as part of an ongoing silo based program.
The dissent, however, argues that these three reporting requirements indicate that Congress wished to reopen the basing decision with each appropriation. Based on these requests for information and its own reading of NEPA, the dissent concludes that discussion of alternative basing modes must be included in the Air Force EIS.
In response, we understand that the purpose of NEPA is to provide information concerning major projects affecting the human environment so that risks may be properly evaluated and decisions undertaken with sufficient understanding. We appreciate that the consideration of “alternatives” is vital to this process and that information concerning alternative basing modes is necessary information in terms of the deployment decision. We also agree that this sort of information is more useful if it is provided before deployment is undertaken. However, we do not agree that the foregoing demonstrates that Congress wished to subject its basing mode decision to NEPA review and accompanying litigation.
First, the language of section 110(b)(1) of DAA 1984 precludes NEPA review of alternative basing modes.
Second, Congress, prior to the enactment of DAA 1984, had before it the Scowcroft Commission Report which included a comprehensive study of alternative basing modes. Moreover, because of the congres-sionally mandated reporting requirements, it had continually updated material on silo technology and possible alternative basing modes which provided information far in excess of NEPA requirements. Given the foregoing, it is clear that NEPA’s goal of considering alternatives would not be frustrated by precluding EIS review of alternative basing modes.
Third, Congress had powerful reasons for precluding NEPA review of alternative basing modes. As the dissent notes, Congress exempted the Scowcroft Commission Report from NEPA to prevent “the functioning of the * * * Commission from being disabled by NEPA litigation.” Dissent at 467. Such concerns likely motivated the decision concerning the alternative basing mode exemption. Congress did not want its basing mode choice impeded by time-consuming litigation or second-guessed by intermeddling courts.
Further, in concurring that the proposed EIS need not discuss alternative weapons systems or intentional use of the missiles, Judge Arnold writes:
It is really expecting too much of the National Environmental Policy Act (NEPA) and the EIS process to ask them to grapple with issues of that scope and magnitude, issues that would inevitably involve large amounts of classified information, and as to which environmental effects as the term is normally used would be unlikely to be of decisional significance. * * * Defendants cannot be reasonably expected to reinvent the*457 world or re-examine strategic doctrine from the ground up every time they compile an EIS on a weapons-related decision. It is only “appropriate” alternatives to a proposed course of action that an EIS must describe.
Id. at 464 (citation omitted).
This is a compelling argument. Yet, we fail to understand how such logic can be used to preclude review of alternative weapons systems and intentional use of the missiles but at the same time require review of alternative basing modes. Though not expert in matters of national defense policy, it would appear to us that the consideration of alternative basing modes would, much as the discussion of alternative weapons systems and intentional use of the missile, involve issues of great scope and magnitude, include “large amounts of classified information,” and would in many ways require defendants compiling an EIS to “reinvent the world [and] re-examine strategic doctrine [concerning the basing mode decision] from the ground up.”
The strategic considerations in the placement of nuclear missiles are obviously of enormous importance and would involve the review of intricate and sensitive defense policy information. Moreover, consideration of the merits of one basing mode over another would likely plunge the defendant, and hence the courts, into a thoroughgoing and fundamental re-examination of strategic doctrine with regard to missile basing decisions. Finally, given the comprehensive information available to Congress in the Scowcroft Commission Report and the continual updated reports provided by statute, we believe that it is far less likely that EIS information concerning alternative basing modes would be of “deci-sional significance” than the discussion of alternative weapons systems or intentional use of the missiles — discussions which the dissent found unnecessary.
We, therefore, disagree with the dissent’s position that the reporting requirements in DAA 1984 and DAA 1985 support the argument that EIS review of alternate basing methods is required by NEPA.
On November 8, 1985, Congress enacted DAA 1986. This act appropriated funds for “not more than 12 MX missiles.” Again, neither the basing mode for the deployment of these missiles nor the question of compliance with NEPA was directly mentioned. However, a close reading of this Act provides some of the strongest evidence that Congress viewed subsequent appropriations for MX missiles as increments to the programmatic goals and requirements outlined in section 110 of DAA 1984.
Specifically, DAA 1986 limited the number of MX missiles that could be placed in former Minuteman silos to 50.
Moreover, from 1984 through 1986, funds had been appropriated for 54 missiles. The statute states that “[t]he number of MX missiles deployed at any time in existing Minuteman silos may not exceed 50.” Further, Congress prohibited further deployment unless a new basing mode was specifically approved by legislation and limited further procurement of MX missiles to those necessary to support two MX testing programs.
The panel opinion and the environmental groups argue that this means only that 50 MX missiles could eventually go into Minuteman silos, not necessarily that 50 of the first 54 missiles were to go into silos. Though perhaps syntactically correct, we find this argument implausible. Given the historical reality of congressional unwillingness to release funds until basing decisions had been carefully approved, and the specific prohibition in DAA 1986 against deployment in any unapproved alternative basing mode, we can hardly believe that a budget conscious Congress would appropriate funds for 12 or 34 missiles to decide, only at some unspecified later date, where they would be placed. On the contrary, we believe that this language is evidence of the congressional intent that 50 of the 54 missiles for which funds had been appropriated were to be placed in former Minuteman silos. Moreover, we find the clear prohibition in DAA 1986 on the use of an alternative basing system without explicit congressional approval confirms our belief, established by the Jackson Amendment, that Congress was committed to the silo basing mode until a better system was devised by careful study and approved by specific congressional authorization.
In many ways, DAA 1986 represented a watershed. Prior to this time, Congress and the Air Force had simply and systematically implemented the recommendation of the Scowcroft Commission as embodied in section 110 of DAA 1984.
On November 14,1986, Congress enacted DAA 1987. Section 103 of this act provided $7,570,472,000 for “missiles.” An accompanying conference report specified that $1,114,731,000 of this sum was earmarked for 12 MX missiles to be acquired under the “testing” exemption to the procurement prohibition outlined in DAA 1986. See H.R.Conf.Rep. No. 99-1001, 99th Cong., 2d Sess. 379 (1986). Under the terms of the exemption, these missiles could be used to only “support the operational test program and for the MX reliability testing program” and could not be legally deployed in any manner. See DAA 1986 § 141(c)(2).
Contrary to the view expressed by the dissent, none of these actions by Congress undermine the notion that section 110 represented a programmatic decision concerning all the missiles authorized for deployment. Based on the careful analysis of the Scowcroft Commission Report, Congress in
The dissent cites the fact that the Air Force has asked the Congress to approve future deployment of missiles in a Rail-Garrison basing mode and that Congress has authorized funds to “study” this method of possible deployment
Finally, the dissent cites recent reports in the popular press, particularly the Arkansas Gazette and the Arkansas Democrat, which state the Air Force now intends to take MX missiles out of the silos and place them on rail cars. These reports appear to indicate that the Air Force views the prior program as a failure and wishes to redeploy the missiles. While we agree with the dissent that these materials do not represent a “secure basis for adjudication,” we do not believe they raise “any serious questions that ought to be answered” in terms of the programmatic intent of section 110 of DAA 1984. See dissent at 16. Assuming this unusual new evidence is reliable, we believe, again, that it merely represents the beginnings of a distinct new program. Moreover, the fact that the prior indepen
Congress intended an environmental impact statement to be filed covering “the proposed deployment and peacetime operations of the MX missiles in the Minuteman silos.” Through the Jackson Amendment and various reporting requirements, Congress generated detailed and continuous information so that it would make informed deployment decisions. At the same time, however, we believe Congress wished to preserve its authority over the choice of basing modes by preventing these decisions from being slowed down and second-guessed by NEPA litigation. It appears now that Congress is about to embark on a new basing mode decision. In so doing, it may specify any level of environmental review it desires.
In summary, in the Jackson Amendment, Congress required an extremely extensive study of alternative weapons systems and alternative basing modes and conditioned the obligation of authorized funds on specific congressional approval of these plans. DAA 1984, in appropriating funds for the first 21 MX missiles, not only appears to approve the President’s basing proposal but referred to future authorizations and required continued updating on silo technology, strongly indicating a continuous plan to use the silo basing mode. In DAA 1985, in raising the number of authorized missiles to 42, Congress continued to study silo basing and request information on future basing modes, suggesting commitment to the present mode. Finally, in DAA 1986, in raising the number of missiles to 54, Congress continued to speak of a silo based missile program, capped the number of missiles to be placed in silos at 50, and declared that any remaining missiles must be used in support of the silo based program unless another basing mode was approved by specific congressional action — all actions clearly implying a consistent programmatic commitment to the silo basing mode. It now appears that Congress has halted the silo based program and is searching for a possible alternative system of deployment for a new and independent program. However, reviewing the foregoing, it is clear that Congress intended the silo basing decision delineated in section 110 of DAA 1984 to be a programmatic one in terms of all the missiles thus far authorized for deployment.
Given the fact that Congress saw each MX missile authorization as part of the initial basing plan outlined in section 110 of DAA 1984, it follows that the rest of that section, notably the provisions defining compliance with NEPA, should also apply in a programmatic way. This interpretation is supported by simple textual analysis. Moreover, given that Congress did conceive of the MX project as a continuous contiguous effort, it would make no sense to broaden the environmental inquiry once the project was under way, thus jeopardizing its completion and threatening to waste previously expended efforts. Clearly, common sense dictates that when an expensive, complex, long-term plan is undertaken, its viability is to be examined fully at the outset before substantive decisions and major expenditures are made.
3. The Jackson Amendment limits the EIS requirement to those MX missiles actually authorized by Congress.
At this point, it is important to note that, although the Jackson Amendment directed the President to assess the environmental impact of each system or missile under consideration, it exempted these assessments from the requirements of NEPA. See supra n. 7. Thus, even though 100 missiles were proposed by the President, only the 54 missiles authorized by Congress are subject at the present time to the requirements of NEPA.
1. Overview
We turn at this point to consider whether this Court, even under the limitations set forth by section 110 of DAA 1984, has the power to review the Air Force EIS for compliance with NEPA. The Air Force contends that the type of decisions involved in reviewing the MX EIS are “interwoven with political issues going to the heart of foreign policy and national defense which have been already resolved by the President.” Thus, it concludes, these types of decisions represent political questions not subject to judicial review. We disagree and find that the federal courts have the power, within the parameters set forth by DAA 1984, to fully review the MX project’s EIS for compliance with NEPA.
2. Discussion
In reading DAA 1984, it is clear to us that Congress intended the ongoing MX project to be subject to substantial environmental review. The terms of the statute plainly state that the “Secretary of the Air Force shall prepare a full draft and final environmental impact statement in accordance with all terms, conditions and requirements of [NEPA] on the proposed deployment and peacetime operations of MX missiles in the Minuteman silos.” Obviously, Congress was concerned about the potentially dangerous effects of a nuclear missile project on the civilian population during peacetime. Moreover, these environmental restrictions were undoubtedly part of an agreement or settlement that Congress entered into with the Executive Branch in exchange for the substantial appropriations involved in this project. Given this, it now seems particularly disingenuous for the Air Force and the Executive Branch to maintain that this duty is unenforceable. We simply do not accept the contention that such an explicit statutory command, made as a condition to large congressional appropriations, on an issue this vital to the health and well-being of citizens of this country, creates a mere precatory admonition, unreviewable by the courts.
Moreover, precedent amply supports our view.
We find the issue of justiciability in the present case to be controlled by Japan Whaling Ass’n v. American Cetacean Soc., 478 U.S. 221, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). There, the Supreme Court found that a purely legal question of statutory interpretation, even if accompanied by significant political overtones, was justicia-ble and, in fact, part of the duty of a federal court to adjudicate. Given that the present case involves such purely legal questions and that it threatens less significant political repercussions than were present in Japan Whaling Ass’n, we find that it is justiciable.
The facts of Japan Whaling Ass’n are as follows. Shortly after the Second World War, forty-six nations entered into an international agreement which created the International Whaling Commission (IWC). The IWC was given the power to set limits on the harvesting of various whale species. Though the member nations declared these quotas binding on themselves, the IWC had no power to impose sanctions for violations. Further, by filing an exception, a member nation could exempt itself from its obligation to abide by a given quota requirement.
After various efforts to provide some sort of enforcement mechanism for this agreement, Congress passed the “Pack-wood Amendment” to the Magnuson Fishery Conservation and Management Act.
In 1981, the IWC declared that in the foreseeable future no sperm whales could be harvested in certain regions. The next year it ordered a five year moratorium on commercial whaling to begin in the 1985-86 season and continue until 1990. Japan filed timely objections and was freed from compliance with the sperm whale quotas under the terms of the international agreement for the years 1982 through 1984. As the 1984-85 whaling season approached, however, it was clear that the United States could impose sanctions under the Packwood Amendment if Japan continued to exceed the quotas.
After extensive negotiations, Japan and the United States concluded an executive agreement wherein Japan agreed to certain harvest limits in excess of those set forth by the IWC and to cease commercial whaling by 1988, three years after the date specified by the IWC. In return, the United States agreed not to certify Japan under the Packwood Amendment.
Following this agreement, several environmental groups brought suit in district court against the Secretary of Commerce and various organizations representing the Japanese whaling industry seeking, inter alia, a writ of mandamus compelling the Secretary of Commerce to certify Japan because its actions in violation of the quotas established by the IWC “diminished the effectiveness” of the international agreement.
In response, the Japanese petitioners argued that under the political question doctrine, federal courts did not have the power to command an executive branch official to repudiate an international agreement, and thus the case was not justiciable.
The Supreme Court disagreed. The Court began by stating that the political question doctrine prevents courts from reviewing controversies which involve “policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Id. at 230, 106 S.Ct. at 2866, 92 L.Ed.2d at 178. This was so, the Court continued, for the reason that “courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature.” Id. at 230, 106 S.Ct. at 2866, 92 L.Ed.2d at 178. (citation omitted).
Yet, the court found that in terms of the mandamus petition, its task involved con-stating the Packwood amendment, a purely legal question of statutory interpretation. Moreover, even though the Court admitted that the adjudication of this case would likely have significant political overtones, it declared that the issues involved were not only fully justiciable but that their resolution was part of an unshirkable duty of federal courts under the Constitution.
Specifically, it declared:
As Baker [v. Carr] plainly held, however, the courts have the authority to construe treaties and executive agreements, and it goes without saying that interpreting congressional legislation is a recurring and accepted task for the federal courts. It is also evident that the challenge to the Secretary’s decision not to certify Japan for harvesting whales in excess of IWC quotas presents a purely legal question of statutory interpretation. The Court must first determine the nature and scope of the duty imposed upon the Secretary by the Amendments, a decision which calls for applying no more than the traditional rules of statutory construction, and then applying this analysis to the particular set of facts presented below. We are cognizant of the interplay between these Amendments and the conduct of this Nation’s foreign relations, and we recognize the premier role which both the Congress*463 and the Executive play in this field. But under the Constitution, one of the judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones. We conclude, therefore, that the present cases present a justiciable controversy, and turn to the merits of petitioners’ arguments.
Id. at 230, 106 S.Ct. at 2866, 92 L.Ed.2d at 178-79. (emphasis added).
The holding of Japan Whaling Ass’n clearly establishes'the justiciability of the present case. We find that a dispute that raises the possibility of ordering the Executive Branch to repudiate an international executive agreement requires an action far more “interwoven with political issues going the heart of foreign policy and national defense which have been already resolved by the President” than the review for environmental compliance of a weapons system. In the former case, the judicial action threatens to absolutely thwart a clear and established action by the Executive. In the later case, the court’s action would not thwart the Executive Branch but would simply require it to follow congressional directives mandating that its project be completed in an environmentally safe manner. Further, as in Japan Whaling Ass’n, the issues presented to this Court are purely legal ones of statutory interpretation, the resolution of which are a part of our constitutional duty.
We further note that in the recent case of No GWEN Alliance v. Aldridge, 841 F.2d 946 (9th Cir.1988), the Ninth Circuit found a very similar claim justiciable. In No GWEN, environmental groups brought suit to compel the Air Force to file Environmental Assessments (EA’s) that complied with NEPA in connection with the installation of the Ground Wave Emergency Network (GWEN), a project designed to send war messages to United States strategic forces during and after a nuclear war. In response to the Air Force contention that such a claim was barred by the political question doctrine, the court specifically stated:
We conclude that a lawsuit challenging development of a defense installation on the grounds that the responsible agency did not discuss environmental impacts causally related to the installation raises justiciable questions.
Id. at 951.
We thus hold the present controversy justiciable.
IV. CONCLUSION
Heretofore, we have found that Congress intended that only the missiles it had actually authorized for deployment were subject to the EIS requirements of NEPA. Second, we have held that Congress intended to define the scope of the EIS requirement in terms of the “proposed deployment and peacetime operations of the MX missiles in the Minuteman silos.” Finally, we have declared review of the EIS for compliance with NEPA to be justiciable under the political question doctrine. We therefore remand to the district court the claims of Colorado and the environmental groups concerning the MX missile EIS that come within the terms of section 110 of DAA 1984. We further order the district court to review these claims with all the rigor and scrutiny normally required by NEPA.
Specifically, because we find that all of Colorado’s claims involve either the deployment of the missiles or their peacetime operation within the silos,
Therefore, the decision of the district court is reversed, and this case is remanded to it for action consistent with this opinion. Each party shall bear its own costs on appeal. The mandate of this Court shall issue forthwith.
. Section 110 of DAA 1984 provides in relevant part:
The Secretary of the Air Force shall prepare a full draft and final environmental impact statement in accordance with all terms, conditions, and requirements of the National Environmental Policy Act of 1969 (42 Ü.S.C. 4321 et seq.) on the proposed deployment and peacetime operations of MX missiles in the Minuteman silos * * *.
. The environmental groups request an injunction requiring the Air Force to prepare a satisfactory EIS and a prohibitory injunction enjoining the continuation of any activities upon the MX missile project until such a document is prepared and considered.
Colorado requests a declaration that the EIS and its preparation were inadequate. Further, it requests an order requiring the Air Force to (1) prepare a Supplemental Environmental Impact Statement (SEIS) that includes an analysis of the missile project’s impact on Colorado and (2) implement appropriate measures to mitigate impacts in the state. Finally, Colorado requested an injunction preventing "an irretrievable commitment of resource to the project until an SEIS is prepared.”
. By a subsequent order of the Court, dated September 1, 1987, the Air Force was required to submit a statement of the issues it intended to address before the en banc court. They were as follows:
1.Are the claims of the environmental groups involving alternative weapons systems and alternative basing modes non-justiciable because of the limitations imposed by section 110 of DAA 1984?
2. Are the claims of the environmental groups involving intentional use of the MX missile non-justiciable because of limitations imposed by section 110 of DAA 1984 and the political question doctrine?
3. Was the district court correct in concluding that any form of injunctive relief would be barred by the political question doctrine?
See Appellees' Second Supplemental Submission at 2-3.
. The first paragraph of the Jackson Amendment, 96 Stat. 1830, 1846, provides:
RESEARCH, DEVELOPMENT, TEST, AND EVALUATION, AIR FORCE
For expenses necessary for basic and applied scientific research, development, test, and evaluation, including maintenance, rehabilitation, lease, and operation of facilities and equipment, as authorized by law; $10,-650,661,000, to remain available for obligation until September 30, 1984: Provided, That none of the funds appropriated in this Act may be obligated or expended to initiate full scale engineering development of a basing mode for the MX missile, until such basing mode is approved by both Houses of Congress in a concurrent resolution * * *.
(Subsection (1) of the amendment continues:)
It shall not be in order to introduce any such resolution prior to the receipt by the Congress of the report of the President required under subsection (7).
. Subsection (7) of the Jackson Amendment provides:
(A) The President shall submit a report to the Committees on Appropriations and Armed Services of the Senate and the House of Representatives, not earlier than March 1, 1983 containing:
(i) a detailed technical assessment of the closely spaced basing system transmitted by the President to Congress on November 22, 1982 or such modifications thereto as the President determines to be advisable;
(ii) a detailed technical assessment of other MX basing systems that might serve as alternatives to the closely spaced basing system transmitted by the President to Congress on November 22, 1982;
(iii) a detailed technical assessment of different types of intercontinental ballistic missiles that might serve as alternatives to the MX missile * * *.
.Subsection (7) of the Jackson Amendment provides that the President shall submit a report containing:
(iv) a comparative detailed technical assessment of alternative programs including acceleration of the Trident II program to provide target coverage equivalent to that of the MX missile system, enhancements and improvements to the Minuteman missile force, and development and deployment of a land-based missile system in deep underground basing,*453 multiple protective shelters and closely spaced basing incorporating mobility and deception, a road mobile missile smaller than the MX and a common missile for land and sea deployment.
. It is important to note that, although the Jackson Amendment directed the President to assess the environmental impact of each system or missile under consideration, paragraph 7(c) provided that "the report required under this subsection shall not be subject to the requirements of Section 102(2)(C) of the National Environmental Policy Act of 1969 relating to environmental impact statements."
. Paragraph 7(B) of the Jackson Amendment provides:
The President shall include in the report submitted pursuant to paragraph (A) an assessment of the military capability of each alternative system or missile; an assessment of the survivability of each alternative system or missile; an assessment of the survivability of each such system or missile against current and projected Soviet threats; an assessment of the projected cost that each such system or missile might have on present and future arms control negotiations; an assessment of the geographic, geological, and other qualifications a site for each such system or missile would likely require; an assessment of the environmental impact each such system or missile would likely have; and the identification of possible sites for each such system or missile.
. We reject the notion that this phrase merely describes the project subject to review. We note that the project in question is sufficiently identified in a preceding subsection of the statute. Section 110(a)(2) of DAA 1984 states:
MX missiles procured with funds authorized to be appropriated by section 103 shall be deployed in existing Minuteman missile silos that are a part of the 319th and 400th Strategic Missile Squadrons and supported by Francis E. Warren Air Force Base, Wyoming.
. Finally, both the environmental groups and the dissent argue that, even in the absence of section 110, the MX missile project is independently subject to NEPA and to that statute’s required consideration of alternatives. If this is true, it would then seem logical, as a matter of construction, to read any additional language attached to a reaffirmation of the applicability of NEPA that describes discreet areas of EIS coverage as a limitation, rather than a superfluous description of the project. See supra n. 9.
.Section 1231(c) of DAA 1984 provides in relevant part:
(1) Not later than January 15 of each year from 1984 through 1988, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives a report—
(A) on the progress being made with respect to the development and deployment of the MX missile system * * *
. Section 110(b) of DAA 1985 provides that none of the money it authorized:
may be obligated for the procurement of additional operational MX missiles unless—
(1) After March 1, 1985, the President submits to Congress a report described in subsection (e):
(2) a joint resolution approving the obligation of those funds is enacted as provided for in this section; and
(3) a second joint resolution is enacted as provided for in the Department of Defense Authorization Act, 1985 (or in a joint resolution providing funds for the Department of Defense for fiscal year 1985), further approving the obligation of those funds.
. Subsection 110(e) of DAA 1985 provides in relevant part that a report under section 110(b)(1) shall include:
(1) a statement that the President has determined that further acquisition of operational missiles under the MX missile program is in the national security interest of the United States and is consistent with United States arms control policy;
(2) finding of the President concerning the effect of acquisition and deployment of such missiles on the vulnerability of the United States land-based intercontinental ballistic missile force;
(3)a discussion of the basing mode for the MX missile (and related improvements in silo-hardening technology) and of proposals for the basing mode for the small, single-warhead intercontinental ballistic missile * * *.
.Assuming for the sake of argument that section 110(b)(1) of DAA 1985 did completely open up the question of basing modes, then the joint resolutions of Congress required by DAA 1985 (See MX Missile Authorization, Pub.L. No. 99-17, 99 Stat. 41 (1985) and MX Missiles — Obligation of Funds, Pub.L. No. 99-18, 99 Stat. 42 (1985)) would have the effect of creating an explicit congressional action readopting the silo-based program. As such, the congressional action concerning the first forty-two missiles would be immune from the necessity, under NEPA, to consider alternative courses of action. See League of Women Voters, Inc. v. United States, 730 F.2d 579, 584 (10th Cir.1984) (it is well settled that congressional decisions and authorizations are not subject to NEPA); see also Lamm v. Weinberger, slip op. at 15-17.
. Section 1231(e) of DAA 1984 was amended to read in relevant part:
(e) The President shall submit to Congress, coincident with the submission to the Congress of any request made after September 24, 1983 for funds for the procurement of operational MX missiles intended for deployment, a written assessment relating to the requirement for and the anticipated impact of the procurement of such missiles. This assessment shall include the President’s judgment with respect to — * * *.
(D) the progress of efforts to develop more survivable basing modes for the MX and other intercontinental missiles, including a new small mobile intercontinental ballistic missile.
. Section 141(b) of DAA 1986 provides:
LIMITATION ON DEPLOYMENT AND BASING OF MX MISSILES —
(1) The number of MX missiles deployed at any time in existing Minuteman silos may not exceed 50.
(2) Funds appropriated pursuant to this or any other Act may not be used—
(A) to modify, or prepare for modification, more than 50 existing Minuteman silos for the deployment of MX missiles;
(B) to acquire basing sets to modify more than 50 existing Minuteman silos for the deployment of the MX missiles; or
(C) to procure long-lead items for the deployment of more than 50 MX missiles.
. Section 141(c) of DAA 1986 provides:
ADDITIONAL LIMITATIONS ON THE DEPLOYMENT AND BASING OF MX MISSILES. — Unless a basing mode for the MX missile other than the existing Minuteman silos is specifically authorized by legislation enacted after the date of the enactment of this Act, after procurement of 50 MX missiles for deployment in existing Minuteman silos—
(1) further procurement of MX missiles shall be limited to those missiles necessary to support the operational test program and for the MX missile reliability testing program.
(2) during fiscal year 1987, depending upon the most efficient production rate, from 12 to*458 21 missiles should be procured for such purposes.
. Responding to the clear programmatic decision of the Congress embodied in section 110 of DAA 1984, the Air Force has proceeded, without hesitation, to deploy the MX missiles in the Minuteman silos. According to the deployment schedule released by the Air Force, 38 missiles should be in place at the time this opinion is released. All 50 missiles are to be deployed by December 19, 1988. See Letter from Peter R. Steenland, Jr., Chief, Appellate Section, Land & Resources Division, Department of Justice, to Robert St. Vrain, Clerk, United States Court of Appeals for the Eighth Circuit, March 9, 1988, Attachment “A”.
. In its 1987 report, the Armed Services Committee noted serious concerns in terms of the Rail-Garrison basing mode, particularly concerning the fact that the survivability of the Rail-Garrison system depends on a dispersal of rail cars that takes several horns to accomplish. This, together with the 30 minutes of strategic warning generally viewed necessary to respond to a nuclear attack, presented a very problematic “lag time” in terms of the United States’ ability to respond to nuclear attack. In light of this significant problem, the committee held hearings "into the adequacy of, and DOD’s confidence in receiving, strategic warning indicators on a timely basis.” In response, the Committee was “not entirely persuaded” by the information received from the Air Force and declared its intent the following year to "explore further the case for deployment of an ICBM system that is dependent for its survivability on horns of strategic warning.” See S.Rep. No. 100-57, 100th Cong., 1st Sess. 103 (1987).
The report continued:
As to the particular choice of Rail-Garrison MX, the committee found the Air Force unable to answer many fundamental questions about Rail-Garrison operations after strategic warning has been declared. How the MX trains would be integrated into the existing rail network — which may itself be undergoing the severe stress of a full-scale conventional forces mobilization — and how the security of their location can be preserved with a non-secure railroad communications and signal environment are typical of the kinds of questions for which the Air Force lacks good answers.
******
Accordingly, while urging the Air Force to continue to preserve the option for an early 1990’s deployment, including the conduct of siting studies and a site-specific environmental impact statement on the peacetime deployment and operation of the Peacekeeper Rail-Garrison system, the committee directs the necessary conceptual work be completed and reported to the Congress before spending substantial sums on the Rail-Garrison approach.
Id.
. Moreover, we fail to understand how the recommendation of the Armed Services Committee last year that the limits in section 141 of DAA 1986 on “piece parts” and assembly of additional MX missiles (other than for testing) be rescinded undermines the programmatic effect of section 110 of DAA 1984. In making this recommendation, the Committee specifically noted that nothing in its action implied approval of any basing mode nor lifted any limits imposed on fabrication or deployment of missiles embodied in DAA 1986. According to the Committee, its action was undertaken merely to preserve the possible “option” to meet a 1991 goal of deploying 100 missiles in some manner. See S.Rep. No. 100-57 at 192.
. Because we find that section 110 of DAA 1984 represents a programmatic decision governing the EIS requirements for all the MX missiles authorized for deployment by Congress, we need not reach the question of whether the MX silo-based project is independently subject to NEPA.
. Should Congress authorize additional missiles pursuant to the recommendations of the President and the Scowcroft Commission (i.e.
. 16 U.S.C. § 1801 (1982 Ed. & Supp. II 1984).
. See discussion supra section II.B. of this opinion.