National Audubon Society v. Department of Navy
| Decision Date | 07 September 2005 |
| Docket Number | No. 05-1405.,05-1405. |
| Citation | 422 F.3d 174 |
| Parties | NATIONAL AUDUBON SOCIETY; North Carolina Wildlife Federation; Defenders of Wildlife; Washington County, North Carolina; Beaufort County, North Carolina, Plaintiffs-Appellees, v. DEPARTMENT OF the NAVY; Gordon R. England, Secretary of the Navy; Hansford T. Johnson, Assistant Secretary of the Navy; R.M. Flanagan, Major General, U.S. Marine Corps, Commanding General, Marine Corps Air Station, Cherry Point, Defendants-Appellants. Natural Resources Defense Council, Incorporated, Amicus Supporting Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Aaron Peter Avila, United States Department of Justice, Washington, D.C., for Appellants. Kiran H. Mehta, Kennedy, Covington, Lobdell & Hickman, L.L.P., Charlotte, North Carolina; Derb Stancil Carter, Jr., Southern Environmental Law Center, Chapel Hill, North Carolina, for Appellees. ON BRIEF: Kelly A. Johnson, Acting Assistant Attorney General, Frank D. Whitney, United States Attorney, Jeffrey Bossert Clark, Deputy Assistant Attorney General, R.A. Renfer, Jr., Assistant United States Attorney, G. Norman Acker, III, Assistant United States Attorney, Stephen G. Bartell, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Robert J. Smith, Navy Litigation Office, Washington, D.C., for Appellants. Raymond E. Owens, Jr., Christopher C. Lam, Kennedy, Covington, Lobdell & Hickman, L.L.P., Charlotte, North Carolina, for Appellees Washington County, North Carolina, and Beaufort County, North Carolina; Michelle B. Nowlin, Southern Environmental Law Center, Chapel Hill, North Carolina, for Appellees National Audubon Society, North Carolina Wildlife Federation, and Defenders of Wildlife. Sharon Buccino, David Newman, Natural Resources Defense Council, Washington, D.C., for Amicus Curiae, Natural Resources Defense Council, Supporting Appellees.
Before WILKINSON, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed in part; vacated and remanded with instructions in part by published opinion. Judge WILKINSON wrote the opinion, in which Judge WILLIAMS and Judge TRAXLER joined.
In this case we consider whether the Department of the Navy has complied with the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. (2000), in its decision to construct a landing field for its new Super Hornet aircraft in Washington and Beaufort Counties, North Carolina. The landing field would lie within five miles of the Pocosin Lakes National Wildlife Refuge, the winter home for nearly 100,000 waterfowl. When a federal entity such as the Navy undertakes an action that will significantly affect the environment, NEPA requires it to prepare an Environmental Impact Statement (EIS) that takes a "hard look" at the action's impacts. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 356, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). The district court found that NEPA demanded a more thorough EIS than the one the Navy prepared during the process of selecting the location for its landing field. The court therefore issued a permanent injunction preventing the Navy from taking any steps toward planning, development, or construction of the landing field until it fulfilled its NEPA obligations.
We agree with the district court that the Navy's EIS was deficient and thus hold that the Navy must complete a Supplemental EIS (SEIS) to address its shortcomings. We conclude, however, that the injunction issued by the district court was overly broad. While the Navy completes the SEIS, it may proceed with certain specific steps prefatory to possible construction of the landing field. We therefore affirm the judgment below that the Navy has failed to comply with NEPA, vacate the injunction, and remand to the district court with instructions to narrow the injunction in accordance with the specific directions we set forth.
This case arose from the Navy's efforts to modernize its fighter aircraft. It decided to station new F/A-18 E/F ("Super Hornet") aircraft on the East Coast to replace earlier model F/A-18 C/D ("Hornet") and F-14 ("Tomcat") airplanes in its Atlantic Fleet. This decision required that it determine both where to homebase, or station, the aircraft and where to operate an Outlying Landing Field (OLF) to conduct Field Carrier Landing Practice (FCLP).
FCLP is a training procedure in which pilots land on a simulated aircraft carrier deck marked out on the OLF. The pilots land on the simulated carrier and immediately take off to position the aircraft for another touchdown. This procedure, known as "touch and go," is repeated from eight to ten times during each training session. A Landing Signals Officer judges each landing. FCLP is essential for pilot safety and proficiency. "Landing a high performance aircraft on a moving aircraft carrier at sea poses enormous challenges for even [the Navy's] most experienced pilots." Joint Appendix (JA) 877 (declaration of Rear Admiral James M. Zortman). On a dark, moonless night, these challenges are magnified.
The Navy plans to acquire approximately 30,000 acres for the OLF. It will use 2000 acres for the core area, which will include the landing field and support facilities. The remaining acreage will provide a buffer to ensure development compatible with the OLF and to limit noise impacts on nearby residents. The Navy projects that it will perform 31,650 FCLP operations annually at the OLF. The OLF will have twenty-four hour capability, and the Navy will conduct many of the operations at night.
According to the Navy, a new OLF is necessary because its existing East Coast OLF, Naval Auxiliary Landing Field (NALF) Fentress, is inadequate for several reasons. First, nearby residential developments restrict the Navy's ability to fully simulate carrier landings because lights from the residences create nighttime visual cues that are absent on a dark sea. These developments also impose altitude and flight pattern restrictions that would not exist in an actual carrier approach. Pilots utilizing Fentress for FCLP must fly in an irregular, kidney-bean shaped pattern rather than the oval shaped pattern used in actual carrier landings. Second, NALF Fentress lacks adequate capacity for "surge" operations, which require an aircraft carrier to deploy at unscheduled times. The military operations in Afghanistan (Enduring Freedom) and Iraq (Iraqi Freedom) are recent examples. Surge operations necessitate greater FCLP capacity because multiple carrier squadrons must train simultaneously at the OLF. Third, even under non-surge conditions, NALF Fentress is overscheduled, resulting in pilots and crews working late into the night. Beyond disrupting the lives of the naval personnel involved, mechanics also have less time to perform aircraft maintenance for flights leaving the next day. This puts aircraft out of service and consequently impacts squadron readiness.
The Navy attempted to follow NEPA's requirements in its decision to homebase the squadrons and construct an OLF. In August 2002, it made available to the public a Draft Environmental Impact Statement (DEIS). In the DEIS, the Navy discussed the potential environmental impacts of selecting different homebasing and OLF sites. It suggested "Site C," located in Washington and Beaufort Counties, North Carolina, as one of two preferred sites for the OLF. After allowing time for public comment, in July 2003, the Navy issued a Final Environmental Impact Statement (FEIS). Department of the Navy, Final Environmental Impact Statement (FEIS) for the Introduction of F/A-18 E/F (Super Hornet) Aircraft to the East Coast of the United States (July 2003). In the FEIS, the Navy analyzed eight potential homebasing alternatives and six potential OLF siting alternatives.
The Navy issued a Record of Decision (ROD) in September 2003, setting forth its conclusions on the placement issues. Record of Decision for Introduction of F/A-18 E/F (Super Hornet) Aircraft to the East Coast of the United States, 68 Fed.Reg. 53,353 (Sept. 10, 2003). The Navy concluded that it should station eight Super Hornet fleet squadrons and a Fleet Replacement Squadron (FRS)1 at Naval Air Station (NAS) Oceana in Virginia Beach, Virginia and two fleet squadrons at Marine Corps Air Station (MCAS) Cherry Point in Havelock, North Carolina. The Navy referred to this homebasing decision as "Alternative 6." Based on this decision, the Navy further concluded that the optimal location for the OLF was at Site C, which is fifty nautical miles from Cherry Point and seventy-two nautical miles from Oceana. The Navy chose Site C because it was roughly in between the two bases.
Site C is approximately five miles west of the Pocosin Lakes National Wildlife Refuge (NWR). Washington County v. U.S. Dep't of the Navy, 357 F.Supp.2d 861, 865 (E.D.N.C.2005). The Super Hornets' eastern approach and holding pattern are within two-tenths of a mile of the Pungo Unit of the NWR. FEIS 12-121. The NWR is a 115,000-acre wetlands area, and the Pungo Unit was initially granted federal protection in 1963. The Pungo Unit is an environment that is "highly populated by nature and thinly populated by man," and is "home to some of the most unspoiled habitat along the East Coast." Washington County, 357 F.Supp.2d at 865.
The FEIS noted that the Pungo Unit "was established specifically as an inviolate waterfowl sanctuary." FEIS 11-36. The NWR is located on the Atlantic Flyway, which is a major route for migratory waterfowl. The Pungo Unit provides the winter residence for nearly 100,000 of these waterfowl, including tundra swans and snow geese, which migrate there from arctic regions. These birds leave the NWR to forage in the agricultural fields surrounding Site C.
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