9th Cir.;
14-35086

The court of appeals affirmed a judgment and vacated an order and remanded. The court held that although the U.S. Department of the Navy violated public disclosure requirements by withholding certain documents during the environmental review process for a proposed project, the errors were harmless.

The Navy released an environmental impact statement (EIS) regarding the proposed construction of a second explosives handling wharf (EHW-2) at Naval Base Kitsap in Bangor, Washington. The wharf was intended to increase the Navy's capacity to perform required maintenance on the nuclear missiles used on the TRIDENT submarines in the Navy's Pacific fleet. Ground Zero Center for Nonviolent Action and others filed suit, alleging that the Navy had failed to fully comply with the disclosure requirements set forth in the National Environmental Policy Act of 1969. Ground Zero sought to enjoin construction of EHW-2. During the litigation, the Navy revealed significant information not fully disclosed in the EIS. One group of documents revealed that the the Department of Defense Explosives Safety Board had rejected the EHW-2 proposal, expressing concern about EHW-2's proximity to EHW-1 and the potential for chain reaction explosions in the event of an accidental detonation. The Safety Board was willing to accept the site approval request only if the Navy conducted a study to prove that the likelihood of risk was nominal. Rather than conduct the studies the Safety Board required, the Navy had opted to obtain site approval via secretarial certification, a process by which the Secretary of the Navy can approve construction despite any Safety Board concerns. Ground Zero argued that these newly released documents demonstrated that the Navy had violated NEPA by not adequately disclosing the risks of EHW-2.