Citizens Concerned about Jet Noise, Inc. v. Dalton

• Decision Date: 19 May 1999
• Docket Number: No. 2:98cv800.,2:98cv800.
• Citation: 48 F.Supp.2d 582
• Court: U.S. District Court — Eastern District of Virginia
• Parties: CITIZENS CONCERNED ABOUT JET NOISE, INC., a Virginia non-stock corporation, Plaintiff, v. John H. DALTON, in his official capacity as Secretary of the Navy; and the United States of America, Defendants.

48 F.Supp.2d 582

CITIZENS CONCERNED ABOUT JET NOISE, INC., a Virginia non-stock corporation, Plaintiff, v. John H. DALTON, in his official capacity as Secretary of the Navy; and the United States of America, Defendants.

No. 2:98cv800.

United States District Court, E.D. Virginia, Norfolk Division.

May 19, 1999.

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Jack E. Ferrebee, Denton & Ferrebee, PLC, Virginia Beach, VA, for plaintiff.

Susan L. Watt, Assistant United States Attorney, Norfolk, VA, Geoffrey Garver, U.S. Department of Justice, Environment and Natural Resources Division, General Litigation Section, Washington, DC, Robert Smith, U.S. Department of the Navy, Navy Litigation Office, Washington, DC, for defendants.

OPINION AND FINAL ORDER

REBECCA BEACH SMITH, District Judge.

This matter is before the court on cross-motions for summary judgment. For the reasons detailed herein, the court GRANTS defendants' motion for summary judgment and DENIES plaintiff's motion for summary judgment and permanent injunction.¹

Plaintiff, Citizens Concerned About Jet Noise, Inc. ("CCAJN"), seeks to halt the transfer of 156 Navy F/A-18 "Hornet" aircraft from Naval Air Station ("NAS") Cecil Field to NAS Oceana, located in Virginia Beach, by challenging the adequacy of the Final Environmental Impact Study ("FEIS") produced by the Navy pursuant to the requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C.A. §§ 4321-70d. The court has federal question jurisdiction over this NEPA action under 28 U.S.C. § 1331.

I. Factual Background

CCAJN is a Virginia non-stock corporation comprised of Virginia Beach and Chesapeake residents who live in the vicinity of NAS Oceana and Naval Auxiliary Landing Field ("NALF") Fentress. NAS Oceana is a designated Master Jet Base located within the corporate limits of Virginia Beach. NALF Fentress is located in the city of Chesapeake and is an auxiliary airfield used by Navy aircraft to practice carrier landings prior to overseas deployments aboard aircraft carriers.² The members of CCAJN are residents of Virginia Beach and Chesapeake who live within the accident potential zones and noise corridors surrounding NAS Oceana and NALF Fentress. Although the corporation name specifically refers to "jet noise," the group's concerns are much broader, encompassing safety, air quality, economic and educational impacts, and property values, all of which were addressed in the challenge to the FEIS.

The origins of the FEIS challenged in this action date back to 1990. In that year, as part of the National Defense Authorization Act for fiscal year 1991, Congress passed the Defense Base Realignment and Closure Act of 1990 ("Base Closure Act"), Pub.L. No. 101-510 tit. 29, part A, §§ 2901 to 2910, 104 Stat. 1485, 1808-19, as amended (contained in 10 U.S.C. § 2687 statutory notes), which provided a mechanism for identifying and authorizing the closure of military bases. The Base Closure Act established an eight-man Base Realignment and Closure ("BRAC") Commission to spearhead the closure process. The BRAC Commission received the closure recommendations made by each service branch, and, after reviewing those recommendations, made independent recommendations regarding the bases that should be closed. The BRAC Commission transmitted its recommendations to the President, who had only two options. The President could approve the entire BRAC report and send it on to Congress, or reject the reporto, thereby terminating the closure process for that cycle.

Once received from the President, Congress could either accept or reject the BRAC report in its entirety. If Congress did not reject the BRAC report within forty-five days, the Base Closure Act directed the Secretary of Defense to carry out all of the closure and realignment decisions in the BRAC report. In oth words, of not rejected by Congress, the BRAC report became binding law on the Secretary of Defense. The Base Closure Act also mandated that realignment and closure actions be initiated within two years of the date the BRAC report was sent to Congress by the President, and that all closures and realignments be completed within six years of that date. The Base Closure Act mandated that the entire process be repeated three times, with the Commission's recommendations due to the President in 1991, 1993, and 1995.

Under the 1993 BRAC report, approved by both the President and Congress, the Secretary of Defense was directed to close the Master Jet Base at NAS Cecil Field, outside of Jacksonville, Florida, and distribute the air assets from NAS Cecil Field to other bases. The 1993 report specifically directed that the Navy transfer all of the F/A-18 aircraft at NAS Cecil Field to Marine Corps Air Station ("MCAS") Cherry Point, North Carolina. Two years later, however, in the 1995 BRAC report, that decision was changed. The 1995 BRAC report redirected the F/A-18 aircraft to "other naval air stations, primarily [NAS], Oceana, Virginia; [MCAS], Beaufort, South Carolina; [NAS] Jacksonville, Florida, and [NAS] Atlanta, Georgia; or other Navy or Marine Corps Air Stations with the necessary capacity and support infrastructure." Defense Base Closure and Realignment Commission, 1995 Report to the President, at 1-50. Not only was MCAS Cherry Point not even listed as a "primary" receiving site, but the 1995 BRAC report also did not delineate the new location of the F/A-18s, leaving that decision to be made by the Navy. The 1995 BRAC report became binding law after its recommendations were accepted by both the President and Congress.

The 1995 BRAC Commission redirected the F/A-18s because "the accelerated retirement of the A-6E aircraft at NAS Oceana creates a vacancy in existing facilities. This redirect uses this capacity and avoids substantial new construction at MCAS Cherry Point, North Carolina." Id. (emphasis added). This reasoning tracks with the justification offered by the Department of Defense ("DOD"), which requested the redirect in order to avoid adding to existing excess capacity. Thus, between the DOD and the BRAC Commission, it is clear that the overriding concern of the 1995 BRAC recommendation was to use the excess capacity already in existence, especially at NAS Oceana, before building new and extensive facilities at an air station without substantial excess capacity.

The 180 F/A-18s stationed at NAS Cecil Field are assigned to eleven fleet squadrons (twelve aircraft per squadron) and one Fleet Replacement Squadron ("FRS") (forty-eight aircraft squadron). The FRS trains new pilots in the F/A-18 aircraft before the pilots are assigned to fleet squadrons. The fleet squadrons deploy aboard aircraft carriers homeported in Norfolk, Virginia, and Mayport, Florida. These carriers deploy in the Atlantic Ocean and Mediterranean Sea for six-month periods. Prior to these extended deployments, the carriers and their complements of aircraft conduct training in operational areas off the Atlantic seaboard. In addition, when not deployed aboard the carriers, the F/A-18 squadrons are required to maintain a rigorous training schedule that requires training areas for air-to-air and air-to-ground operations, as well as airfields for practicing carrier landings prior to deployments. The aircraft also have periodic maintenance requirements that cannot be met by the squadron maintenance personnel, but, instead, must occur at an Aviation Intermediate Maintenance Depot ("AIMD").

With these operational considerations in mind, the Navy developed screening criteria designed to satisfy the 1995 BRAC mandate that the F/A-18s be transferred to stations with the "necessary capacity and infrastructure." FEIS at 2.1-1. The capacity analysis paralleled the methodology of the BRAC process by focusing on available aircraft hangar modules as the main indicator of excess capacity at a particular airfield. Id. at 2.1-2. The Navy's infrastructure analysis evaluated the runway capacity (number and length), as well as maintenance, training, and other support infrastructure at each base. Id. at 2.2-1 to 2.1-6. Finally, the operational analysis accounted for the myriad of F/A-18 training requirements, including access to training ranges within 100 miles of the receiving installation, airspace availability, access to auxiliary fields within fifty miles of the receiving installation for Field Carrier Landing Practice ("FCLP"), and other combat readiness criteria. Id. at 2.2-7 to 2.2-10.

After applying these screening criteria to twenty eastern seaboard Navy and Marine Corps Air Stations, the Navy determined that only three, NAS Oceana, MCAS Cherry Point, and MCAS Beaufort, had sufficient excess capacity and the necessary infrastructure to support F/A-18s. Id. at 2.1-12. Following a total of seven public "scoping" meetings, the Draft Environmental Impact Statement ("DEIS") was distributed on September 19, 1997.

The draft identified five Alternative Realignment Scenarios ("ARSs") that were under consideration. ARS 1, the only single-site alternative developed, placed all of the aircraft at NAS Oceana. ARS 2 maximized use of existing capacity at two air stations by placing nine squadrons and the FRS at NAS Oceana and two squadrons at MCAS Beaufort. ARS 3 also maximized use of existing capacity at two air stations by placing eight squadrons and the FRS at NAS Oceana and three squadrons at MCAS Cherry Point. ARS 4 placed five squadrons at MCAS Beaufort, requiring an expansion in capacity, and six squadrons plus the FRS at NAS Oceana, which utilized all the capacity there. ARS 5 placed five squadrons at MCAS Cherry Point, also requiring an expansion in capacity, and six squadrons and the FRS to NAS Oceana, again using all existing capacity. ARS 5 was identified in the Record of Decision ("ROD") as the "environmentally preferred alternative."

Seven public hearings were held on the DEIS and public comment was accepted through December 2, 1997. In light of the comments...