dissenting:
I dissent from the majority’s decision to vacate the district court’s injunction.
I.
We live in a nuclear age. We have learned how to use nuclear energy to create a bomb that was used to bring an end to World War II. See Donald Kagan, Why America Dropped the Bomb, Commentary, Sept. 1995 at 17 (responding to revisionist arguments criticizing the United States’ decision to drop atomic bombs on Hiroshima and Nagasaki). Since the beginning of the Atoms-for-Peace program in 1954, the United States has also *901promoted the development and utilization of nuclear energy for commercial purposes.
We have made great strides in nuclear technology, but we have solved only half of the problem. In using nuclear fuel over the last forty years, we have generated large amounts of plutonium wastes. “Plutonium is generally accepted as among the most toxic substances known; inhalation of a single microscopic particle is thought to be sufficient to cause cancer.” Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Comm’n, 547 F.2d 638, 638 (D.C.Cir.1976), rev’d on other grounds, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). We have developed no safe procedure for disposing of these nuclear wastes.
It has been well remarked that, despite decades of effort, we still await a solution to the disposal of spent nuclear fuel.1 For many years, reprocessing seemed the only practical way to provide for the safe storage of spent nuclear fuel. There was an absence of any serious attempt to plan or construct a permanent repository to store spent fuel. In the early 1970’s, however, environmentalists waged an attack on reprocessing facilities, charging that the plutonium in spent fuel posed an intolerable risk to the public’s health and safety. The death knell to reprocessing came in 1977, when President Carter declared an indefinite ban on reprocessing of spent fuel in the United States. This ban shut down, before it ever went into operation, the reprocessing facility at Barnwell, South Carolina, that was built with private funds. Although President Reagan lifted the ban on reprocessing in 1981, the Barnwell facility has never reopened, and the government’s efforts to dispose of spent nuclear fuel since 1977 have not focused on reprocessing.
Until 1977, the disposal of spent fuel in permanent storage repositories had never been considered a viable option. When President Carter banned reprocessing, however, he assured the domestic nuclear industry that the government would develop an interim storage facility for spent fuel. Although President Carter was unable to obtain congressional authorization for such a facility, Congress finally acted in 1982 by passing the Nuclear Waste Policy Act of 1982 (“NWPA”), 42 U.S.C. § 10101 et seq., which provided for the expeditious development of a permanent repository for spent nuclear fuel. Congress found that the accumulation of spent nuclear fuel and other radioactive wastes had created “a national problem,” and that “Federal efforts during the past 30 years to devise a permanent solution to the problems of civilian radioactive waste disposal have not been adequate.” 42 U.S.C. § 10131(a)(2) and (3). In passing the NWPA, furthermore, Congress remarked that “[t]he failure of the government to provide a permanent waste disposal facility during more than 30 years of Federal nuclear activities is unmitigated.” H.R.Rep. No. 97-491, Part 1, 97th Cong., 2d Sess. 28 (1982), reprinted in 1982 U.S.C.C.A.N. 3792, 3794.
The government has never built such a facility. Even though domestic utilities have already been compelled to pay the government billions of dollars to finance the construction of a permanent repository, the government has never been able to identify a suitable site to locate the facility. Meanwhile, spent nuclear fuel continues to pile up at each of the 109 commercial nuclear power plants in the United States. For a more thorough discussion of the government’s efforts to dispose of spent nuclear fuel, see Florida Power & Light Co. v. Westinghouse Elec. Corp., 826 F.2d 239, 243-53 (4th Cir.1987), cert. denied, 485 U.S. 1021, 108 S.Ct. 1574, 99 L.Ed.2d 890 (1988).
Even though we have never solved the problem of the disposal of spent nuclear fuel *902from domestic nuclear power plants, the government now wants to compound the problem by accepting 24,000 spent fuel rods from foreign research reactors for storage in the United States. To this end, the government has been preparing an Environmental Impact Statement (“EIS”), which it claims it will complete in September 1995. Meanwhile, the government wants to accept up to 409 spent fuel rods before it completes the EIS.
Although it has clamored about the urgent need to accept these rods to preserve the non-proliferation interests of the United States, the government has downplayed the reality that there is no permanent storage facility for these, or any, spent fuel rods. Although the Savannah River Site has the capacity to store 409 rods, it, like the on-site storage facilities beside each nuclear power plant in the United States, is not a permanent solution to the disposal of spent nuclear fuel. The government, since 1982, has been working without success to obtain authorization to build a permanent storage facility for our own spent nuclear fuel. It has been unable even to select a site for such a repository. Given the government’s lackluster trackrecord, there is no reason to believe that it will receive the authorization to build a storage facility for the 24,000 spent fuel rods it wants to accept from foreign research reactors. In any event, the construction of such a geologic repository would be an enormous undertaking. As the Department of Energy has explained:
A geologic repository can be viewed as a large underground mine with a complex of tunnels occupying roughly 2,000 acres at a depth between 1,000 and 4,000 feet. To handle the waste received for disposal, surface facilities will be developed which will occupy about 400 acres. The repository will be operational for about 25 to 30 years. After the repository is closed and sealed, waste isolation will be achieved by a system of multiple barriers, both natural and engineered, that will act together to contain and isolate the waste as required by regulations.
1 United States Dep’t of Energy, Environmental Assessment: Yucca Mountain Site, Nevada Research and Development Area, Nevada 1 (May 1986).
Instead of finding a permanent solution to the disposal of spent nuclear fuel, the United States has concentrated its efforts on controlling the market for highly-enriched uranium. Under the Reduced Enrichment for Research and Test Reactors program (the “Reduced Enrichment program”), the United States has agreed to accept the spent fuel from foreign research reactors if they agree to convert their operations for the use of low-enriched uranium, which cannot be used to make nuclear weapons. The government claims that the United States needs to accept 409 spent fuel rods so that the foreign research reactors will remain in the Reduced Enrichment program. By accepting the spent fuel, we are inducing the foreign research reactors to use low-enriched uranium. However, it is difficult for me to believe that the United States can successfully control the market for highly-enriched uranium when such fuel is freely available from brokers in Russia, China, and other countries, and where it is cheaper and easier to operate a reactor with high-enriched uranium. See Declaration of A. Axmann 5-6 (Joint Appendix (“J.A.”) 867-68); United States Dep’t of Energy, Environmental Assessment of Urgent-Relief Acceptance of Foreign Research Reactor Spent Nuclear Fuel 1-5 (Apr.1994).
In pursuit of this naive goal, we are accepting spent nuclear fuel from research reactor operators who are fully capable of safely storing this spent fuel without assistance from the Department of Energy (“DOE”) and without forcing us to accept their spent fuel. As the district court explained, the Draft Environmental Assessment, dated February 1994, noted that “ ‘[a]ll of the foreign research reactor operators are fully capable of safely storing this spent fuel, including provision of additional storage if needed, without DOE assistance.’ ” State of South Carolina v. O’Leary, Mem.Op. 7-8 (D.S.C. Jan. 27, 1995) (J.A. at 1203-64) (emphasis omitted) (quoting Draft Environmental Assessment 4-13 (Feb.1994)). The Draft Environmental Assessment also explained that the reason for the “urgent” program to accept the 409 spent nuclear fuel rods was *903simply that “ ‘many of the reactor operators do not want to continue to store this spent fuel and will not do so.’ ” Id. at 8 (J.A. at 1204) (quoting Draft Environmental Assessment at 4H3). Although these statements were conveniently deleted from the final Environmental Assessment, there is no question that the foreign research reactors can safely manage the spent nuclear fuel in their own countries. In fact, during the course of this litigation, two of the foreign research reactors have demonstrated their ability to manage their spent fuel without the help of the United States. In October 1993, a Belgian research reactor known as SCK/CEN arranged to have its spent fuel reprocessed at the facility in Dourneay, Scotland. See id. at 6-7 (J.A. at 1202-03). More recently, the Hahn-Meitner Institut in Berlin arranged to have 52 spent fuel rods sent to Scotland for reprocessing.
Although the DOE found that the storage of 409 spent nuclear fuel rods at the Savannah River Site would not cause a significant environmental impact, the Defense Nuclear Facilities Safety Board (“DNFSB”)2 conducted an inspection of the Savannah River Site more recently and found problems with the management of the spent fuel currently stored there. The DNFSB found that some of the materials currently in wet storage have experienced significant corrosion, which is “contaminating the facility, generating significant waste, and contributing to personnel exposure.” Memorandum of J. Kent Forten-berry to G.W. Cunningham, Technical Directory of the DNFSB (“DNFSB Memorandum”) 1 (July 14, 1995). Although there is a general consensus that the spent fuel can be maintained safely in dry storage, id. at 3, the DOE plans to keep the spent fuel in wet storage for the next ten years, id. at 1. The DNFSB concluded that a more urgent response to the problems of wet storage is required. Id. Given the problems with maintaining the spent nuclear fuel currently stored at the Savannah River Site, it strains credibility for the DOE to conclude that the storage of 409 additional spent fuel rods, coming in from abroad, will not cause a significant environmental impact. It must also be remembered that the risk involved with nuclear materials cannot be measured by its quantity; even small additions to the number of spent fuel rods stored at the Savannah River Site significantly adds to the risk of a catastrophe.
The DOE has claimed that it will complete the EIS this month, which would provide a legal basis for the admission of the foreign spent fuel into this country. Considering that our domestic nuclear industry has waited over forty years for a solution to the disposal of spent nuclear fuel, the foreign research reactors can certainly wait one more month for the DOE to complete its EIS before the United States accepts their spent fuel. Despite the government’s plea of “urgency,” the nuclear waste disposal problem cannot be any more urgent for the foreign research reactors than it is for domestic commercial reactors.
Moreover, once we accept spent nuclear fuel from foreign concerns, we cannot give it back. Once the spent fuel rods reach the territorial boundaries of the United States, we take title to those rods. The United States has no ability to return the spent fuel rods to the foreign research reactors at a later date. When spent fuel is sent to the reprocessing facility in Dourneay, Scotland, the United Kingdom’s Atomic Energy Authority requires by contract that the sender take back the reprocessed fuel. The United States has not included such a provision in its acceptance of the 409 spent nuclear fuel rods. It is foolish and irresponsible to accept any amount of spent nuclear fuel until the government demonstrates that it can build a permanent facility to store the spent fuel.
II.
I continue to adhere to my position that the shipment of 409 spent nuclear fuel elements, or any portion of that amount, constitutes an improper segmentation from the Department of Energy’s larger plan to accept 24,000 spent fuel elements from foreign research reactors over the next ten to thirteen years. See 40 C.F.R. § 1508.27(b)(7) *904(“Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.”).
The majority argues that the current action to accept 409 spent fuel elements is distinct from the proposed action to accept 24,000 elements: whereas the action to receive 24,000 spent fuel elements requires the construction of a facility to store the elements, the 409 elements in need of urgent acceptance is different because they can be stored at existing and approved facilities at the Savannah River Site. The majority also insists that the acceptance of the 409 elements in the urgent relief program will not in any way commit the government to accept the larger shipment of 24,000 spent fuel elements. I believe that the latest draft of the EIS, and the choices considered therein, demonstrates that the majority’s position is untenable.
According to the March 1995 draft, the EIS studies three different alternatives for managing the spent nuclear fuel from foreign research reactors. The most ambitious management alternative, Management Alternative 1, would involve the acceptance of roughly 24,000 spent nuclear fuel elements over a ten to thirteen year period. Management Alternative 2 would involve the management of spent nuclear fuel overseas either by providing assistance, incentives, and coordination for the storage of spent fuel at one or more locations overseas, or by providing nontechnical assistance, incentives, and coordination for the reprocessing of spent nuclear fuel at overseas reprocessing facilities. Management Alternative 3, the hybrid alternative, would involve a combination of accepting spent fuel elements for storage in the United States and providing assistance for the management of spent fuel overseas. The Draft EIS also considers the alternative of taking no action.
The EIS does not propose a permanent solution to the storage of the 24,000 spent fuel elements that would be accepted under Management Alternative 1. Instead, the EIS proposes a two-phase storage plan for managing the accepted spent fuel for a 40-year period. In phase 1, spent nuclear fuel elements would be shipped to existing facilities for interim storage while the Department of Energy constructs a more permanent storage facility. The EIS explains that only two facilities could serve as potential phase 1 sites: the Savannah River Site and the Idaho National Engineering Laboratory. See Department of Energy, Draft Environmental Impact Statement on a Proposed Nuclear Weapons Nonproliferation Policy Concerning Foreign Research Reactor Spent Nuclear Fuel (“Draft EIS”) § S.2.7.3 (Mar. 1995). Phase 2 would begin when the DOE constructs a new facility or refurbishes an existing facility for the 40-year storage of the spent fuel elements. The Draft EIS considers five possible sites for such a phase 2 storage facility: the Savannah River Site, the Idaho National Engineering Laboratory, the Hanford Site, the Oak Ridge Reservation, and the Nevada Test Site. Draft EIS § S.2.7.3.1.
The EIS does not analyze the management of the accepted spent fuel elements beyond a 40-year period. The EIS contemplates the development of a geologic repository for permanent storage of spent nuclear fuel but concedes that such a program is in its early stages. In fact, the Department of Energy has not even developed the criteria for the types of waste that would be acceptable for deposit into the proposed geologic repository, and it is not clear at this time whether the 24,000 spent nuclear fuel elements accepted from foreign research reactors under Management Alternative 1 would qualify for storage in the repository. See Draft EIS §§ S.2.2.2 and S.2.6.
The DOE insists that it will not select a management alternative until it issues the final EIS, which it claims will be completed in September 1995. In fact, the DOE has already begun implementation of Management Alternative 1. In September 1994, this Court allowed the government to accept a shipment of 153 spent nuclear fuel elements from foreign research reactors for storage at the Savannah River Site. In lifting the district court’s injunction in this case, this Court authorizes the government to accept a second shipment of 157 rods to be stored at Savannah River. Although the DOE insists that these “urgent” shipments are part of a sepa*905rate program, the fact remains that under Management Alternative 1, the government proposes to import the same type of spent fuel elements from the same set of research reactors and to store them at the same facility. The only difference between these “urgent” shipments and the shipments under Management Alternative 1 is the timing. By segmenting the “urgent” shipments from its larger plan to accept 24,000 rods, the DOE has begun implementing Management Alternative 1 before it has completed the EIS.
The majority insists that these shipments of spent fuel elements are not improper segments of the DOE’s proposed action to accept 24,000 fuel rods. The majority argues that the “segmentation of one phase of a larger project prior to the completion of the environmental review of the entire project constitutes impermissible segmentation only if the component action has a ‘direct and substantial probability of influencing [the agency’s] decision’ on the larger project.” See supra at 898-99 (citing State of North Carolina v. City of Virginia Beach, 951 F.2d 596, 603 (4th Cir.1991)). The majority concludes that the urgent relief shipments do not constitute such an impermissible segmentation because it finds that the acceptance of the urgent relief shipments will not influence the government’s decision on its larger program to import 24,000 rods.
The standard cited by the majority is the result of two Fourth Circuit cases on segmentation. In Maryland Conservation Council, Inc. v. Gilchrist, 808 F.2d 1039 (4th Cir.1986), Montgomery County, Maryland, planned to build a highway across Seneca Creek State Park. Although the highway project crossed a state park, the Court found that it was a federal action that required the approval of the Secretary of the Interior, and possibly the Secretary of the Army and the Secretary of Transportation,3 none of whom could authorize the project without first considering an environmental impact statement. Id. at 1042. Before such a statement was completed, however, the County began construction of the segments of the highway on both sides of the park. Various citizens’ groups sought an injunction from any portion of the highway until the environmental review was completed.4 This Court agreed, stating:
Because it is inevitable that the construction of the highway will involve a major federal action, it follows that compliance with NEPA is required before any portion of the road is built. This conclusion effectuates the purpose of NEPA. The decision of the Secretary of the Interi- or to approve the project, and the decision of any other Secretary whose authority may extend to the project, would inevitably be influenced if the County were allowed to construct major segments of the highway before issuance of a final EIS. The completed segments would “stand like gun barrels pointing into the heartland of the park.” ... It is precisely this sort of influence on federal decision-making that NEPA is designed to prevent. Non-federal actors may not be permitted to evade NEPA by completing a project without an EIS and then presenting the responsible federal agency with a fait accompli.
Id.
This Court reached the opposite conclusion in State of North Carolina v. City of Virginia Beach, 951 F.2d 596 (4th Cir.1991). In Virginia Beach, the City of Virginia Beach sought to construct an 85-mile pipeline from Lake Gaston, on the Virginia-North Carolina *906border, to Virginia Beach. The Army Corp of Engineers, after conducting an environmental assessment and issuing a finding of no significant impact, granted the City a permit to construct the pipeline. However, because the proposed pipeline crossed land surrounding a hydropower generation facility that was licensed by the Federal Energy Regulatory Commission (the “FERC”), the FERC had to grant its approval to the project. While seeking the FERC’s approval, the City sought to begin construction on certain portions of the pipeline outside of the FERC’s jurisdiction. Although these portions represented only $8.4 million of a $218.9 million project, beginning work prior to the FERC’s approval would save 12 to 15 months in overall project time if the FERC ultimately gave its approval.
The district court, relying on Gilchrist, enjoined all pipeline construction until the FERC granted its approval, and it refused to make an exception for the relatively minor amounts of work contemplated by the City. This Court reversed, holding that “construction which lies beyond the boundaries of FERC’s jurisdiction can be enjoined only when it has a direct and substantial probability of influencing FERC’s decision.” Id. at 603 (emphasis added). It concluded that the minor phases of construction sought by the City would not have such a direct and substantial impact on the FERC decision-making.
The case currently before this Court differs from Gilchrist and Virginia Beach. Gilchrist and Virginia Beach each involved a non-federal actor who was actively pushing for a project that required the approval of a relatively neutral federal agency. When the non-federal actor sought to begin construction of the project before receiving the federal approval, the Court examined to see whether such construction would have a direct and substantial probability of influencing the federal agency’s ability to make an objective decision on the project.
In the case before this Court, a federal agency, the DOE, is actively promoting a plan to accept 24,000 spent nuclear fuel rods into the United States. Before it can proceed, however, the National Environmental Protection Act (“NEPA”) requires the DOE to complete an EIS, forcing the agency to consider the environmental consequences of and alternatives to its proposed action. Although NEPA cannot ultimately stop the DOE from proceeding with its proposed action, it does at least prevent the federal agency from taking an action while completely blind to its environmental consequences. It undermines the purposes of NEPA, and is a bit unseemly, for the DOE to begin implementation of its proposed action while it claims to be studying the environmental impacts and considering other alternatives. The EIS should be more than a formality. Before the DOE begins importing large amounts of spent nuclear fuel, which rank among the most dangerous material that humanity has ever tried to control, we should require the DOE to complete its environmental review.
III.
I continue to object to the piecemeal approach by which the government has taken with respect to the disposal of spent nuclear fuel from foreign research reactors. Unable to complete the EIS required to accept the 24,000 spent fuel rods, it has begun implementation of its program by claiming an urgent need to accept smaller shipments of 153 rods and 157 rods. I refuse to endorse the government’s scheme. This Court should not allow the government to accept any shipments of spent nuclear fuel rods until it completes the EIS, as required by NEPA.
I dissent.
. As the D.C. Circuit has stated:
The word disposal may itself be misleading, for it connotes some physical or chemical step which renders the wastes less toxic. Under present technology, the only known agent of detoxification is the passage of great amounts of time. The phase of the nuclear fuel cycle referred to as "disposal" generally refers only to storage of wastes in physical isolation.
Natural Resources Defense Council, Inc. v. United States Nuclear Regulatory Comm’n, 547 F.2d 633, 637 n. 3 (D.C.Cir.1976), rev’d on other grounds, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). In the two decades since this opinion, we have not developed a technology to detoxify nuclear wastes.
. The DNFSB is an independent oversight agency created in 1988 to ensure that the DOE's nuclear facilities do not have adverse effects on public health and safety. See 42 U.S.C. § 2286.
. Because the state park was established with a grant of substantial federal funds, the approval of the Secretary of the Interior was required before park land could be converted to other than public outdoor recreation uses. Id. at 1042 (citing Land and Water Conservation Fund Act § 6(f), 16 U.S.C. § 4601-8(f)(3)). If the highway impinged on wetlands in the park, a permit from the Secretary of the Army would be required to dredge wetlands. Id. (citing Federal Water Pollution Control Act § 404, 33 U.S.C. § 1344). Furthermore, to the extent that the County sought federal-aid highway funds, the approval of the Secretary of Transportation would also be required. Id. (citing Department of Transportation Act § 4(f), 49 U.S.C. § 303(c)).
. Although these groups conceded that some highway access through the park was essential, they preferred a route that created the least damage to the park. The County began constructing the highway on a route that would have taken three times as much park land as other alternative routes. Gilchrist, 808 F.2d at 1041.