CONCERNED CITIZENS FOR 442ND TAW v. Bodycombe, 81 0997 CV W 3.

• Decision Date: 08 April 1982
• Docket Number: No. 81 0997 CV W 3.,81 0997 CV W 3.
• Citation: 538 F. Supp. 184,75 ALR Fed 107
• Parties: CONCERNED CITIZENS FOR the 442ND T.A.W., a Missouri not-for-profit corporation, et al., Plaintiffs, v. Major General Richard BODYCOMBE, Chief of Air Force Reserve, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

538 F. Supp. 184

75 ALR Fed 107

CONCERNED CITIZENS FOR the 442ND T.A.W., a Missouri not-for-profit corporation, et al., Plaintiffs, v. Major General Richard BODYCOMBE, Chief of Air Force Reserve, et al., Defendants.

No. 81 0997 CV W 3.

United States District Court, W. D. Missouri, W. D.

April 8, 1982.

Gerald H. Rosen, Kansas City, Mo., for plaintiffs.

Mark Zimmerman, Asst. U. S. Atty., Kansas City, Mo., Byron D. Baur, Secretary of the Air Force, Washington, D. C., for defendants.

MEMORANDUM AND ORDER

ELMO B. HUNTER, Senior District Judge.

Plaintiffs¹ filed this suit on November 25, 1981, seeking declaratory and injunctive relief to restrain the defendants² (Air Force) from undertaking the deactivation of the 442nd Tactical Airlift Wing (TAW) of the Air Force Reserve. The 442nd TAW is presently located at Richards-Gebaur Air Force Base, in the metropolitan area of Kansas City, Missouri. Plaintiffs allege that the Air Force made the decision to deactivate on or about January 23, 1981, and that in making this decision it failed to comply with the requirements of the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. § 4321 et seq. the Environmental Quality Improvement Act of 1970, 42 U.S.C. § 4371 et seq., and various regulations. Specifically, plaintiffs allege that an environmental assessment (EA) was not prepared prior to the decision and was not, therefore, part of the decision making process; that the action is a major federal action which would significantly affect the quality of human environment in and around the Richards-Gebaur Air Force Base and an Environmental Impact Statement (EIS) should have been prepared; and that the Air Force failed to follow the spirit and provisions of NEPA, the Environmental Quality Improvement Act, and the Air Force regulations.

Plaintiff requested a temporary restraining order, a preliminary injunction, and a permanent injunction enjoining and restraining the Air Force from continuing with the deactivation pending proper compliance with NEPA, and a court judgment adjudging and declaring defendants actions in the proposed action are in violation of the statutes and regulations. On November 30, 1981, the parties entered a stipulation that for ninety days the Air Force would not transfer or loan any other C-130 planes, thereby eliminating the need for a temporary restraining order or a preliminary injunction.

On March 4, 1982, a trial on the merits was held in this cause.

The Statute

The National Environmental Policy Act (NEPA) was passed in 1970. It requires, inter alia, that

(2) all agencies of the Federal Government shall—

* * * * * *

(C) 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,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should be implemented.

42 U.S.C. § 4332.

The Department of Defense is not excepted from these provisions. Jackson County, Missouri v. Jones, 571 F.2d 1004, 1007 (8th Cir. 1978).

The Council on Environmental Quality has promulgated regulations to implement NEPA. 40 C.F.R. § 1500 et seq. (1981). Section 1501.2 of those regulations states that "agencies shall integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values ...," and sets out other guidelines for assuring the objectives set forth in NEPA are met. The Department of Defense has enacted its own regulations in compliance with the NEPA requirements. 32 C.F.R. § 214 et seq. (1981).

Section 1508 of the Council on Environmental Quality regulations defines some of the important terms used in NEPA and the related regulations. Under these definitions, an environmental assessment (EA)

(a) Means a concise public document for which a Federal agency is responsible that serves to:

(1) Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement.

(2) Aid an agency's compliance with the Act when no environmental impact statement is necessary.

(3) Facilitate preparation of a statement when one is necessary.

(b) Shall include brief discussions of the need for the proposal, or alternatives as required by sec. 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.

40 C.F.R. § 1508.9 (1981).

"Finding of No Significant Impact" FONSI means a document by a Federal agency briefly presenting the reasons why an action, not otherwise excluded (§ 1508.4), will not have a significant effect on the human environment and for which an environmental impact statement therefore will not be prepared. It shall include the environmental assessment or a summary of it and shall note any other environmental documents related to it ....

40 C.F.R. § 1508.13 (1981).

In defining the human environment, the regulation specifically states that "economic or social effects are not intended by themselves to require preparation of an environmental statement," although when an EIS is prepared and "economic or social and natural or physical environmental effects are interrelated, then the EIS will discuss all of these effects on the human environment." 40 C.F.R. § 1508.14 (1981).

Facts

According to the testimony and evidence elicited at the trial, in mid-January, 1981, Verne Orr, Secretary of the Air Force, made an announcement of the proposed conversion of the 442nd TAW to a fighter wing. The announcement stated:

The U.S. Air Force announced today that it plans to make aircraft equipage changes at the following Air Force Reserve units beginning late in calendar year 1981:

442d Tactical Airlift Wing (TAW), Richards-Gebaur AFB, Missouri, equipped with 16 C-130es, will be inactivated in late 1982. A tactical fighter group (TAG) will be activated at Richards-Gebaur AFB with 18 A-10s....

Peacetime role of A-10 training for the air reserve forces in late 1981.

The proposed actions are part of the Air Force's continuing effort to modernize the Air Reserve Forces and further enhance their capabilities within the total force policy.

Defendant's Exhibit No. 1.

The environmental assessment (EA), prepared by an independent company, Tetra Tech, Inc., is dated January, 1982. The EA assessed environmental impacts in the areas of solid and chemical waste, sewage and storm water, air quality, biotic environment, socioeconomic environment, noise, and flight safety. It found minor positive impacts relative to waste generation (solid and chemical), sewage treatment, and storm water contamination. As for air quality, the EA found that impacts will be positive with respect to particulates, sulfar dioxide and nitrogen oxides, and slightly negative with respect to carbon monoxide and hydrocarbon emissions. The AE found no significant biotic impacts.

Noise impact calculations indicate that a small reduction in aircraft noise will result from the mission change. Minor changes in flight safety could result due to the higher mishap rate of the A-10A aircraft. The fact that only a small portion of A-10A flying time will be spent in the RGAFB vicinity will mitigate the potential flight safety impacts.

Regarding socioeconomic impacts, the EA indicated that loss of direct and indirect employment, regionally and locally, and declining school enrollment in the area were the most significant impacts. According to the EA, unemployment was expected to increase by less than 0.1 percent regionally, and by less than one percent locally in Belton, Missouri. There would be a slight decrease in regional school enrollments and an almost one percent decrease in Belton enrollment.

The EA recommended a finding of no significant impact. Defendants' Exhibit No. 2 (Environmental Assessment).

There are approximately 1900 personnel associated with the 442nd TAW at Richards-Gebaur. These include 1400 reservists (200 of them full-time reservists), 50 active personnel, approximately 400 civilian employees and 30-35 contract personnel. (Testimony of General William W. Basnett, wing commander of the 442nd TAW).

According to the testimony of General Basnett, the announcement made in January of 1981 was of a plan, and a final decision to convert was not made until February 1982, (Defendants' Exhibit No. 4), after the filing of the EA. Any statements in the meantime³ were just references to the plan to convert. A plan is not final and not all plans are carried out. Between January and December 1981, there were no direct actions in implementing the proposed plan, only planning-type actions such as surveys and evaluations. (Testimony of General Basnett).

In an attempt to show that the Air Force began the conversion prior to the filing of the EA, plaintiff presented evidence that three C-103 planes had been "transfered" to Westover Air Force Base. (Plaintiffs' Exhibit No. 2⁴). General Basnett testified, however, that these "transfers" were merely loans on a temporary basis, and that the planes had been sent because a number of Westover's planes were down for maintenance work. The permanent assignment of the planes remained with the 442nd.

The plaintiffs contention seems to be that the decision to convert the 442nd TAW to a fighter group was made prior to an environmental assessment and that the Air Force, therefore, failed to follow its own regulations and the spirit and provisions of NEPA in not considering environmental aspects in the decision making process. Based on the evidence and...