The opinion of the court was delivered by: EDELSTEIN
MEMORANDUM OPINION AND ORDER
EDELSTEIN, District Judge:
Plaintiffs in this action fall into three distinct categories: British women who live within a 100 mile radius of the United States Air Force Base in Greenham Common, Great Britain, suing on their own behalf and on behalf of their minor children, and an association of these women ("Greenham plaintiffs"); a United States citizen living in London, Deborah Law; and two United States Congressmen, Ronald Dellums of California and Ted Weiss of New York ("congressional plaintiffs"). Plaintiffs seek to enjoin the deployment of ninety-six Ground Launched Cruise Missiles ("cruise missiles") at the United States Air Force Base in Greenham Common, which is located approximately 60 miles west of London. They contend that the deployment of the cruise missiles will create a substantial risk of a nuclear war initiated by either the United States or the Soviet Union, or of a nuclear accident. From this premise, those plaintiffs living near Greenham Common allege that the deployment of these missiles constitutes tortious injury and violates rights granted by the fifth and ninth amendments to the United States Constitution. The congressional plaintiffs allege that deployment violates their constitutional right as members of Congress to declare war and provide for the general defense and welfare.
The defendants have moved pursuant to Fed. R. Civ. P. 12(b) to dismiss the complaint for lack of subject matter jurisdiction
and for lack of standing.
The decision to deploy cruise missiles at a United States Air Force Base in Greenham Common, Great Britain was the result of a planning meeting held in January, 1979 between the United States President, the British Prime Minister, the French President and the West German Chancellor. It is part of a broader plan to modernize the nuclear forces of the North Atlantic Treaty Organization ("NATO") and to provide a more adequate defense for Western Europe.
The deployment decision was jointly make by President Jimmy Carter and our NATO allies in December, 1979. See N.Y. Times, Dec. 13, 1979, at A1, col. 6. Congress over the years has appropriated funds for this plan.
The Cruise Missle is a jet aircraft that navigates itself without a pilot or human assistance. This pilotless jet checks its radar signals against a map of the terrain stowed in an onboard computer. These small, solid-fueled, pilotless missles are designed to travel at subsonic speeds at very low altitudes, and with a range of up to 1,500 miles. While they do not have an intercontinental range, they can be carried to the border of the Soviet Union by B-52s and launched from the air.
The plaintiffs allege that the cruise missile system, the product of a number of technological innovations in nuclear weapon design, has three siginficant advantages over other nuclear weapons.
The mobility of cruise missile launchers make it more difficult to destroy the missiles in an attack on their base. Plaintiffs Memorandum in Support of Motion for a Temporary Restraining Order at 13 ("Plaintiffs' TRO Memo"). Once launched, cruise missiles are difficult to detect in flight, in part because the missiles can delay radar detection by flying at low altitudes for extended periods of time. Complaint, P34; Plaintiffs' TRO Memo at 14-15. Finally, cruise missiles achieve great accuracy as a result of a sophisticated guidance system. Complaint, PP36, 41; Plaintiffs' TRO Memo at 15-16.
On November 9, 1983, plaintiffs filed this action to enjoin the deployment of ninety-six cruise missiles at Greenham Common. Plaintiffs assert that deployment of the cruise missiles will render nuclear war and accident likely, if not inevitble. Three explanations are offered in support of this contention. First, plaintiffs point to the longstanding United States' policy of "first use" -- the willingness in the event any NATO member is attacked to use nuclear weapons if necessary to repel the attack.
Plaintiffs assert that the deployment of cruise missiles translate this willingness on the part of the United States to use nuclear weapons first into a capability to do so. Plaintiffs contend that this combination of willingness and capability makes it likely that the United States will in fact initiate a "limited" nuclear war. Second, plaintiffs opine that even if the United States does not initiate a nuclear exchange, this new capability for "first use" will likely provoke a preemptive nuclear strike against the missiles by the Soviet Union. Finally, plaintiffs contend that the possibility of an accidental thermonuclear detonation of a missile on the ground or of an accidental detonation of the high explosive component of the warhead increases the liklihood of nuclear disaster on British soil.
Based on these alleged consequences of deployment, the Greenham plaintiffs contend that the deployment of cruise missiles contravenes several customary norms of international law, subjecting them to tortious injury actionable under the Alien Tort Claims Act, 28 U.S.C. § 1350. The Greenham plaintiffs join plaintiff Deborah Law, a United States citizen who lives in London, in alleging that deployment violates their rights guaranteed by the fifth and ninth amendments to the United States Constitution. Plaintiffs Ted Weiss and Ronald Dellums, who are United States Congressmen, allege that deployment violates their constitutional right and responsibility as members of Congress to declare war and provide for the general defense and welfare.
On November 9, 1983, this court heard argument and denied plaintiffs' application for a temporary restraining order prohibiting the movement to Greenham Common of any parts of the cruise missiles, finding that plaintiffs had failed to establish irreparable injury or likelihood of success on the merits. The court also questioned the urgency of the matter since, according to a newspaper article attached as exhibit A to plaintiffs' affidavit in support of the restraining order, the deployment was not to commence for another two weeks. The article proved inaccurate; the deployment of the cruise missiles commenced on November 14, 1983. The uncertainty of when the transportation of the cruise missiles to Greenham Common would take place having been resolved, the plaintiffs renewed their request for a temporary restraining order. On November 16, 1983, the court heard argument and denied plaintiffs' application on the grounds that plaintiffs had failed to show irreparable injury or likelihood of success on the merits.
The defendants have moved pursuant to Fed. R. Civ. P. 12(b) to dismiss the complaint, arguing that all plaintiffs' claims are non-justiciable because the action raises political questions, the congressional plaintiffs' claim lacks ripeness, and all plaintiffs lack standing. The court heard oral argument on defendants' motion to dismiss on November 22, 1983. Extensive papers have been submitted by counsel for the court's consideration.
In addition several amicus curiae briefs were accepted.
By an endorsement dated July 13, 1984 the court granted defendants' motion to stay all discovery pending the determination of their motion to dismiss.
This court is asked to decide whether the instant action presents a justiciable controversy. The Constitution extends the judicial power to those "cases" and "controversies" specifically enumerated in Article III; matters not within the category of "cases" or "controversies" cannot be entrusted to courts under Article III of the Constitution. Comprehended within the limitations imposed by these terms are constitutional and prudential concerns about the proper role of the courts in dispute resolution and the allocation of power among the three branches of our government. These ...