B-202309(2),O.M., MAY 6, 1981

B-202309(2),O.M.: May 6, 1981

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PLRD - CLEM GAYNOR: THIS IS IN RESPONSE TO YOUR REQUEST FOR A LEGAL OPINION ON WHETHER THE DEPARTMENT OF DEFENSE (DOD) IS REQUIRED TO FILE AN EIS IN CONNECTION WITH A MILITARY BASE CLOSURE OR REALIGNMENTS OF BASE PERSONNEL. YOU STATED THAT DOD REPORTS THAT THEY ARE REQUIRED TO FILE AN EIS WHEN THE CLOSURE/REALIGNMENT ACTION AFFECTS THE NATURAL ENVIRONMENT. QUESTION SUBMITTED: IS THE DEFENSE DEPARTMENT POSITION CORRECT? DISCUSSION: ENVIRONMENTAL IMPACT STATEMENTS (EIS) ARE REQUIRED UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969. DOD IS NOT EXEMPT FROM COMPLYING WITH NEPA. IT IS OUR OPINION THAT SEC. 2687 MERELY REQUIRES DOD TO COMPLY WITH NEPA WITH RESPECT TO A PROPOSED BASE CLOSURE OR REALIGNMENT.

B-202309(2),O.M., MAY 6, 1981

SUBJECT: MILITARY BASE CLOSURES AND REALIGNMENTS AND THE NECESSITY OF ENVIRONMENTAL IMPACT STATEMENT (EIS) (FILE B-202309; CODE 945461)

GAO EVALUATOR, PLRD - CLEM GAYNOR:

THIS IS IN RESPONSE TO YOUR REQUEST FOR A LEGAL OPINION ON WHETHER THE DEPARTMENT OF DEFENSE (DOD) IS REQUIRED TO FILE AN EIS IN CONNECTION WITH A MILITARY BASE CLOSURE OR REALIGNMENTS OF BASE PERSONNEL. YOU STATED THAT DOD REPORTS THAT THEY ARE REQUIRED TO FILE AN EIS WHEN THE CLOSURE/REALIGNMENT ACTION AFFECTS THE NATURAL ENVIRONMENT, AND NOT IF THE PREPARED ACTION ONLY AFFECTS THE SOCIO ECONOMIC ENVIRONMENT. DOD RELIES UPON THE CASE OF BRECKINRIDGE V. RUMSFELD, 537 F.2D 864 (6TH CIR. 1976), CERT. DENIED, 429 U. S. 1061 (1976).

QUESTION SUBMITTED: IS THE DEFENSE DEPARTMENT POSITION CORRECT? ANY COURT CASES PRO OR CON? HAS THE GAO EVEN TAKEN A POSITION REGARDING DOD'S POSITION?

DISCUSSION: ENVIRONMENTAL IMPACT STATEMENTS (EIS) ARE REQUIRED UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969, (NEPA), 42 U.S.C. SEC. 4321 ET SEQ. THE PERTINENT SECTION, SEC. 4332(C), READS AS FOLLOWS:

"ALL AGENCIES OF THE FEDERAL GOVERNMENT SHALL INCLUDE IN EVERY RECOMMENDATION OR REPORT ON PROPOSALS FOR LEGISLATION AND OTHER MAJOR FEDERAL ACTIONS SIGNIFICANTLY AFFECTING THE QUALITY OF THE HUMAN ENVIRONMENT, A DETAILED STATEMENT BY THE RESPONSIBLE OFFICIAL ON

"(I) THE ENVIRONMENTAL IMPACT OF THE PROPOSED ACTION. DOD IS NOT EXEMPT FROM COMPLYING WITH NEPA; JACKSON CITY, MISSOURI V. JONES, 471 F.2D 1004 (8TH CIR. 1978); CONCERNED ABOUT TRIDENT V. RUMSFELD, 555 F.2D 817 (D. C. CIR. 1977); ESPECIALLY IN REGARD TO CERTAIN BASE CLOSURES AND REALIGNMENTS. SECTION 2687, 10 U.S.C. (SUPP. 1979) PROVIDES:

"(B) NO ACTION DESCRIBED IN SUBSECTION (A) WITH RESPECT TO THE CLOSURE OF, OR A REALIGNMENT WITH RESPECT TO, ANY MILITARY INSTALLATION MAY BE TAKEN UNLESS AND UNTIL -

"(2) THE SECRETARY OF DEFENSE OR THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED COMPLIES WITH THE REQUIREMENTS OF THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 WITH RESPECT TO THE PROPOSED CLOSURE OR REALIGNMENT. ***

"(3) THE SECRETARY OF DEFENSE OR THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED SUBMITS TO THE COMMITTEE ON ARMED SERVICES OF THE SENATE AND HOUSE OF REPRESENTATIVES HIS FINAL DECISION, INCLUDING STATEMENTS OF THE ESTIMATED FISCAL, LOCAL ECONOMIC, BUDGETARY, ENVIRONMENTAL, STRATEGIC, AND OPERATIONAL CONSEQUENCES OF THE PROPOSED CLOSURE OR REALIGNMENT ***."

IT IS OUR OPINION THAT SEC. 2687 MERELY REQUIRES DOD TO COMPLY WITH NEPA WITH RESPECT TO A PROPOSED BASE CLOSURE OR REALIGNMENT. IT DOES NOT ADDITIONALLY REQUIRE THAT AN EIS MUST BE PREPARED IN CONNECTION WITH THAT ACTION, UNLESS REQUIRED UNDER THE PROVISIONS OF NEPA. NOR DOES IT APPEAR THAT THE DETAILED JUSTIFICATION WHICH INCLUDES A STATEMENT OF THE ESTIMATED ENVIRONMENTAL CONSEQUENCES REQUIRED TO BE SUBMITTED BY THE SECRETARY OF DEFENSE IN CONNECTION WITH CERTAIN BASE CLOSURES OR REALIGNMENTS UNDER SEC. 2687(B)(3), IS NECESSARILY, THE EQUIVALENT OF AN EIS, AS THAT TERM IS USED IN NEPA.

DOD DOES NOT BELIEVE THAT AN EIS MUST BE PREPARED IN CONNECTION WITH EVERY BASE CLOSURE OR REALIGNMENT SINCE NOT ALL SUCH ACTIONS ARE NECESSARILY A "MAJOR FEDERAL ACTION SIGNIFICANTLY AFFECTING THE QUALITY OF THE HUMAN ENVIRONMENT." DOD REGULATIONS IN THIS REGARD STATE:

"(B)(1) ANOTHER EXAMPLE OF AN ACTION THAT COULD BE A MAJOR ACTION SIGNIFICANTLY AFFECTING THE QUALITY OF THE HUMAN ENVIRONMENT IS A MAJOR REALIGNMENT OF A COMPONENT, INVOLVING NUMEROUS INSTALLATIONS OR ACTIVITIES. ***

ALTHOUGH THE SECONDARY SOCIO-ECONOMIC IMPACTS ARE GENERALLY INSUFFICIENT BY THEMSELVES TO REQUIRE AN EIS, THESE FACTORS SHOULD BE INCLUDED IN THE STATEMENT, IN THE EVENT AN EIS IS REQUIRED. 32 C.F.R. SEC. 214.7 (1979).

GENERALLY, THE COURTS HAVE NOT REQUIRED DOD TO PREPARE AN EIS IN CONNECTION WITH A BASE CLOSURE OR REALIGNMENT WHEN THE ACTION ONLY AFFECTS THE SOCIO-ECONOMIC ENVIRONMENT. THE COURTS HAVE STATED THAT THE ACTION PROPOSED BY THE DEFENSE DEPARTMENT MUST AFFECT THE PHYSICAL ENVIRONMENT BEFORE AN EIS IS NEEDED, THE EFFECTS OF THE ACTION UPON THE SOCIO-ECONOMIC ENVIRONMENT ALONE ARE INSUFFICIENT TO REQUIRE AN EIS. SEE CASES ATTACHED.

THE GAO HAS NOT PREVIOUSLY COMMENTED ON THE MATTER.

SUMMARY OF COURT CASES SUPPORTIVE OF DOD'S POSITION.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES V. RUMSFELD, 413 F.SUPP. 1224 (D. C. DISTRICT 1976), AFFIRMED WITHOUT OPINION 556 F.2D 76 (D. C. CIR. 1977). PLAINTIFF SOUGHT TO ENJOIN THE CONTINUED IMPLEMENTATION OF ARMY REALIGNMENT ALLEGING ARMY FAILED TO FILE EIS, ARGUING THAT THE REALIGNMENT SHOULD HAVE INCLUDED CONSIDERATION OF SOCIO-ECONOMIC FACTORS. COURT HELD SOCIO-ECONOMIC CONSIDERATIONS HOWEVER ARE NOT THE PRIMARY CONCERN OF NEPA. SOCIO-ECONOMIC FACTORS ARE SIGNIFICANT ONLY IN CONJUNCTION WITH PRIMARY ENVIRONMENTAL IMPACTS ALONE THEY ARE NOT PROTECTED. IN VIRTUALLY ALL CASES EXPRESSING CONCERN FOR SOCIO-ECONOMIC FACTORS THERE WERE AT LEAST ALLEGATIONS, IF NOT EVIDENCE, OF A PRIMARY IMPACT ON PHYSICAL ENVIRONMENTAL RESOURCES. SUMMARY JUDGEMENT GRANTED.

BRECKINRIDGE V. RUMSFIELD, 537 F.2D 864 (6TH CIR. 1976), CERT. DENIED, 429 U. S. 1061. DOES ACTION BY THE U. S. ARMY WHICH REDUCES JOBS AND TRANSFERS PERSONNEL FROM DEPOTS *** CONSTITUTE "A MAJOR FEDERAL ACTION SIGNIFICANTLY AFFECTING THE QUALITY OF THE HUMAN ENVIRONMENT" WITHIN THE MEANING OF 42 U.S.C. SEC. 4332(C)? COURT HELD DISTRICT COURT WAS IN ERROR IN UNDERTAKING TO TRANSFORM NEPA FROM A LAW DESIGNED TO PROTECT AND ENHANCE THE NATURAL RESOURCES OF THE NATION INTO A STATUTE PROHIBITING THE DISCHARGE AND TRANSFER OF PERSONNEL OF AN ARMY INSTALLATION, AND THAT IT WAS NOT THE INTENTION OF CONGRESS FOR NEPA TO BE USED FOR PURPOSES OF PROMOTING FULL EMPLOYMENT OR TO PREVENT THE DISCHARGE OR TRANSFER OF FEDERAL PERSONNEL.

ALTHOUGH FACTORS OTHER THAN THE PHYSICAL ENVIRONMENT HAVE BEEN CONSIDERED, THIS HAS BEEN DONE ONLY WHERE THERE EXISTED A PRIMARY IMPACT ON THE PHYSICAL ENVIRONMENT.

IMAGE OF GREATER SAN ANTONIO, TEXAS V. BROWN, 570 F.2D 517 (3RD CIR. 1978). PLAINTIFFS ALLEGED THAT AIR FORCE'S FAILURE TO FILE EIS IN CONNECTION WITH PROPOSED PERSONNEL REDUCTION OF AIR FORCE BASE VIOLATED NEPA. COURT HELD - INITIAL DETERMINATION CONCERNING THE NEED FOR AN EIS LIES WITH THE AGENCY. QUESTION TO BE ANSWERED: WHETHER SOCIO ECONOMIC EFFECTS, STANDING ALONE, CAN TRIGGER NEPA'S EIS REQUIREMENT? PRIMARY CONCERN OF NEPA WAS WITH THE PHYSICAL ENVIRONMENTAL RESOURCES OF THE NATION. WHEN AN ACTION WILL HAVE A PRIMARY IMPACT ON THE NATURAL ENVIRONMENT, SECONDARY SOCIO-ECONOMIC EFFECTS MAY ALSO BE CONSIDERED.

JACKSON COUNTY, MISSOURI V. JONES, 571 F.2D 1004 (8TH CIR. 1978). NEPA IS SPECIFICALLY APPLICABLE TO THIS RELOCATION BECAUSE IT WILL DIRECTLY AND SUBSTANTIALLY AFFECT THE PHYSICAL AND ECONOMIC ENVIRONMENTS OF TWO MAJOR URBAN AREAS. DISTRICT COURT IN MCDOWELL V. SCHLESINGER WAS RIGHT WHEN IT HELD THAT THE AIR FORCE HAD TO COMPLY WITH NEPA BEFORE IT WOULD IMPLEMENT ITS PROPOSALS.

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