By Warren Bates
A federal judge is forcing the government to either declassify an Environmental Protection Agency inspection of the U.S. Air Force's operating location near Groom Lake or seek a presidential exemption that would keep the information secret.
The ruling, filed in federal court Friday [Sept. 1] by U.S. District Judge Philip Pro, stems from a lawsuit filed by workers against the EPA for noncompliance with environmental standards at the Lincoln County base, 35 miles west of Alamo.
Jonathan Turley, the attorney handling the case, said Pro's decision would have national significance in part because government agencies will no longer be able to arbitrarily decide
what is and is not classified material.
"We believe this establishes a precedent that goes beyond this case ... national security (claims) do not trump domestic laws," Turley said. "The government can no longer have nameless, faceless bases.
"Today these workers were vindicated."
Government lawyers, in arguing that the case should be thrown out entirely, had contended that classified information from the EPA's March inspection of the base was not required to be made public under the Resource Conservation and Recovery Act.
The EPA had given its report to the Air Force, which promptly termed the information a potential threat to national security, putting it under wraps. Government lawyers said it should remain there and refused to say anything other than the base was in compliance with EPA requirements.
U.S. Department of Justice lawyers Richard Sarver and Russell Young had argued that if the information was made available under the Resource Act, it would essentially repeal executive orders restricting the public's access to national security information.
Pro noted it is a felony to spill national secrets and that repealing executive orders is something courts generally shy away from. But he said the Resource Act language was clear and if the military wanted to get around it, they could always seek a presidential exemption.
The judge gave the EPA until Oct. 2 to decide whether it would declassify the information or seek the exemption.
Government spokesman Jim Sweeney could not be reached late Friday for comment and Air Force spokesman, Col. Tom Boyd, was on assignment in Japan.
"On Oct. 2, citizens will learn they have a new federal facility," Turley said of the base, which he claims is known widely within government circles as Area 51, an allegation the military denies. "The president will now have to personally exempt this facility by name, or order the military to operate it under the same rules as other (bases)."
The lawsuit claimed that for years, environmental crimes such as open pit burning of chemicals were taking place without any type of monitoring by the EPA. The March inspection, Pro said, was conducted "no doubt because of this litigation."
The United States prevailed on its request to throw out part of the lawsuit on grounds that because the inspection was done, the workers' claims were moot. Government lawyers said the Resource Act only covered current or future environmental operations and because the facility was in compliance with EPA inspection standards, the workers had no claim.
Turley had argued that part of the lawsuit should remain alive because there were still factual issues in dispute, such as the contentiousness over the name of the base or the completeness of the inspection.
Pro, in the ruling, acknowledged that Turley had not seen much of the classified documents. He said his own access was "not so limited" and that a review of sealed material showed there were "no genuine issues of fact" in dispute.
Turley said he is not bothered by the possibility the government might simply go to President Clinton and get its exemption.
"If the president wishes to deprive the public of environmental information or allow the military to circumvent the law, he will have to do so publicly and face the political consequences," he said. "He will have to do so in dozens of cases."
The law professor at George Washington University said the government has vigorously fought the idea of asking for an exemption because if one was needed for the Groom Lake facility, others would have to be obtained for other federal facilities that are in noncompliance with environmental standards.
Turley has a similar suit pending against the U.S. Air Force that, unlike the EPA case, seeks monetary damages on behalf of workers who allegedly contracted injuries or disease because of environmental waste violations.
He said he believed Pro's ruling strengthened the chances of that case surviving government challenges.
Original file name: .CNI - Groom Lake Ruling 9.18
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