Citizens of the Ebey's Reserve for a Healthy , Safe & Peaceful Env’t v. U.S. Dep't of the Navy, C13–1232 TSZ.

• Decision Date: 11 August 2015
• Docket Number: No. C13–1232 TSZ.,C13–1232 TSZ.
• Citation: 122 F.Supp.3d 1068
• Court: U.S. District Court — Western District of Washington
• Parties: CITIZENS OF THE EBEY'S RESERVE FOR A HEALTHY, SAFE & PEACEFUL ENVIRONMENT, Plaintiff, v. U.S. DEPARTMENT OF THE NAVY, et al., Defendants.

122 F.Supp.3d 1068

CITIZENS OF THE EBEY'S RESERVE FOR A HEALTHY, SAFE & PEACEFUL ENVIRONMENT, Plaintiff,

v.U.S. DEPARTMENT OF THE NAVY, et al., Defendants.

No. C13–1232 TSZ.

United States District Court, W.D. Washington, at Seattle.

Signed Aug. 11, 2015.

David Scott Mann, Gendler & Mann, Seattle, WA, for Plaintiff.

Brian C. Kipnis, U.S. Attorney's Office, Rachel K. Roberts, U.S. Department of Justice, Seattle, WA, for Defendants.

ORDER

THOMAS S. ZILLY, District Judge.

Since 1943, the U.S. Department of the Navy ("Navy") has used Outlying Landing Field ("OLF") Coupeville to train its pilots and simulate the conditions and procedures of landing on an aircraft carrier while at sea. In 2005, the Navy analyzed the projected impact of replacing the aging EA–6B Prowler with the EA–18G Growler as its primary electronic attack aircraft. The Navy's 2005 analysis and Environmental Assessment ("EA") concluded that the transition from the Prowler to the Growler would have "no significant impact" on the environment.

In 2013, plaintiff Citizens of the Ebey's Reserve for a Healthy, Safe & Peaceful Environment ("COER"), a non-profit organization comprised of residents and property-owners surrounding the Navy's Coupeville training facility, filed this action under the National Environmental Policy Act. Plaintiff's suit seeks to compel the Navy to conduct an Environmental Impact Statement ("EIS") regarding its activities at OLF Coupeville and an injunction barring the Navy from further operations at this facility until the EIS is complete. The Navy has now agreed to conduct a new environmental review of its flight operations at OLF Coupeville. Thus, the only question presented in the pending motion is whether the ongoing activity is "significantly and qualitatively different or more severe" than predicted in the 2005 EA, so as to require an injunction prohibiting further flight operations at OLF Coupeville until the new study is completed.

For the reasons stated in this Order, the Court concludes that plaintiff has not established a likelihood of success on the merits, has not sufficiently demonstrated that its members will suffer irreparable harm absent an injunction, and has not shown that the balance of equities or the public interest weigh in its favor. Accordingly, plaintiff's motion for a preliminary injunction, docket no. 21, is DENIED.

BACKGROUND

Plaintiff is a non-profit organization made up of individuals that own property or reside near the Navy's OLF Coupeville base. Compl. (docket no. 1) ¶ 9. Plaintiff has sued defendants under the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701 –706, alleging violations of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321, and the Navy's regulations implementing NEPA, 32 C.F.R. § 775.6. Compl. (docket no. 1) ¶ 2. Plaintiff seeks a declaratory judgment that the Navy has failed to comply with NEPA regarding its operation of the EA–18G Growler aircraft at OLF Coupeville and an order requiring the Navy to comply with its NEPA obligations. Id. ¶ 1, 3–4. Plaintiff also seeks equitable relief barring further activities at OLF Coupeville until the Navy has come into full compliance with NEPA. See id. ¶ 5.

1. NAS WHIDBEY ISLAND AND OLF COUPEVILLE

OLF Coupeville is located on Whidbey Island in Washington State and is part of the Navy's Naval Air Station ("NAS") Whidbey Island. See Compl. (docket no. 1) ¶ 22.¹ NAS Whidbey Island is the home-base to the Navy's airborne electronic attack aircraft units. Shoemaker Decl. (docket no. 48) ¶ 6. The mission of the Navy's electronic attack aircraft is "to neutralize, suppress, and destroy enemy air defense and communication systems from carrier or land based operations." Id. ¶ 5. The Navy's electronic attack aircraft units are an active component of our nation's military and are currently flying EA–18G aircraft in support of operation Inherent Resolve against the Islamic State in the Middle East. See Hewlett Decl. (docket no. 46) ¶ 5.

OLF Coupeville was built in 1943 for the purpose of conducting practice landing procedures. The Navy used OLF Coupeville for this purpose until 1963, when it determined that the Coupeville facility was no longer needed. In 1967, however, OLF Coupeville was reactivated in response to the increased demand for training due to the Vietnam War. Since 1967, OLF Coupeville has been primarily used for Field Carrier Landing Practice ("FCLP"). 2005 EA at 6. FCLP is a training exercise meant to simulate the conditions and procedures of landing on an aircraft carrier while it is at sea. In prior litigation involving OLF Coupeville, owners of forty-six parcels surrounding the NAS Whidbey Island alleged inverse condemnation as a result of frequent and noisy aircraft operations. The Court explained the FCLP operations at OLF Coupeville as follows:

The exercise involves groups of up to five aircraft flying in patterns to practice touch-and-go landings. Each aircraft in turn approaches the runway and touches down, but then takes off again without coming to a stop. The aircraft then loops around and prepares for another landing. Each aircraft makes multiple touch-and-go landings before stopping to refuel. Aircraft in these exercises at OLF Coupeville fly at low altitudes over the private property surrounding the landing strip.

Argent v. United States, 124 F.3d 1277, 1278 (Fed.Cir.1997). Navy pilots must complete FCLP before they can attempt to land on an actual aircraft carrier. Shoemaker Decl. (docket no. 48) ¶ 14. To satisfy this requirement, each pilot must "complete between 120 and 140 FCLP approaches demonstrating safe and predictable execution of proper procedures[.]" Id.

According to the Navy, "[t]o be most effective, FCLP training must replicate, as nearly as practicable, the conditions encountered during carrier landings." Id. OLF Coupeville is ideal for training pilots how to execute the procedure of how to land on an aircraft carrier because it "is situated near sea level" and pilots are able to train at altitudes and under conditions that will produce "aircraft performance characteristics [that] are similar to at-sea conditions." Id. ¶ 16.

The Navy has designated two flight paths for FCLP exercises at OLF Coupeville. Flight path 32 is for aircraft arriving from the south and departing to the north. Flight path 14 is for aircraft arriving from the north and departing to the south. Aircraft using flight path 32 pass directly over the property owners of Admiral's Cove on their approach.

2. THE 2005 ENVIRONMENTAL ASSESSMENT

For over 30 years, the Navy's electronic attack aircraft was the EA–6B Prowler. See 2005 EA at 1. In 2005, the Navy announced that the EA–6B Prowler would be replaced by the EA–18G Growler as the Navy's primary electronic attack aircraft. See id. Replacement of the EA–6B Prowler was projected to begin in 2008 and be completed by 2013. Id. at 2. As a result of this transition, it was estimated that 57 EA–18G Growlers would replace 72 EA–6B Prowlers; a decrease of 15 aircraft. Id.

In 2005, the Navy conducted an environmental assessment regarding this transition. The Navy projected that there

[W]ill be no change in the training syllabus that would cause changes to the types of flight operations flown by the EA–6B (arrivals, departures, pattern operations), the locations of the flight operations (flight tracks over land or water), or the current ratio of daytime and nighttime flight operations at Ault Field or OLF Coupeville.

Id. The Navy also anticipated that the number of FCLP operations at OLF Coupeville after the transition to the EA–18G would be fewer than the 6,120 operations that had taken place in 2003. Id. at 10 & 11, Table 1–3.

The 2005 EA also evaluated the potential changes in environmental noise that would result from the introduction of the EA–18G at NAS Whidbey Island. Id. at 35–41. This assessment was based on a 2004 study performed by Wyle Laboratories, Inc.² See 2005 EA at 36. The Wyle Report used "noise measurements of controlled flyovers at prescribed power, speed, and drag configurations[,]" combined with information about the airfield, the number of operations conducted, census population data, and geographical noise contours, along with other data, to create a computer model of the noise expected to be produced by operations involving the EA–18G aircraft. Wyle Report at 1–2–1–3.

According to the 2005 EA, since the noise produced by flight operations is "highly variable[,]" it "is best assessed by time-level sound level metrics such as the Day–Night Average Sound Level (DNL)." 2005 EA at 36.

DNL is a composite metric that averages all noise events for a 24–hour period, with a 10 dB penalty applied to nighttime events after 10 P.M. and before 7 A.M. It is an average quantity, mathematically representing the continuous A-weighted sound level that would be present if all of the variations in sound level that occur over a 24–hour period were smoothed out so as to contain the same total sound energy. It is a composite metric accounting for the maximum noise levels, the duration of the events (sorties or operations), and the number of events that occur over a 24–hour period. DNL does not represent the sound level heard at any particular time, but quantifies the total sound energy received.

Id. While "DNL does not provide specific information on the individual sound events.... [D]aily average sound levels are typically used for the evaluation of community noise effects, and particularly aircraft noise effects." Id. at 37. According to the 2005 EA, the use of DNL to evaluate community noise is supported by a number of "scientific studies and social surveys [that] have found a high correlation between the percentage of groups of people highly annoyed and the level of average noise exposure measured in DNL." Id. (internal citations omitted). The Wyle Report also notes that both the American National Standard Institute and the Federal Interagency Committee on Noise have endorsed DNL as the noise...