State v. United States Dep't of the Navy
| Decision Date | 10 December 2021 |
| Docket Number | 2:19-cv-01059-RAJ-JRC |
| Parties | STATE OF WASHINGTON, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF THE NAVY, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
NOTED FOR: December 31, 2021
REPORT AND RECOMMENDATION
The District Court has referred this consolidated case to the undersigned. Dkt. 19. The matter is before the Court on cross-summary judgment motions filed by plaintiffs Citizens of the Ebey's Reserve for a Healthy, Safe, and Peaceful Environment and Paula Spina (collectively “COER”); the State of Washington; and defendants the U.S. Department of the Navy, Mark Esper, Richard Spencer Todd Mellon, Mathew Arny, and the U.S. Fish and Wildlife Service (collectively “the Navy”). Dkts. 87, 88 92.
Plaintiffs challenge the Navy's 2018 final environmental impact statement (“FEIS”) and 2019 record of decision authorizing the expansion of EA-18G “Growler” aircraft operations at the Naval Air Station Whidbey Island (“NASWI”) under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551, et seq. These statutes mandate a procedure that an agency must follow before taking an action as significant as the Growler expansion at NASWI.
Under NEPA and the APA, the Navy's decision may be overturned if the Navy acted “arbitrarily and capriciously” and failed to take a “hard look” at the consequences of the proposed action.
Here, despite a gargantuan administrative record, covering nearly 200,000 pages of studies, reports, comments, and the like, the Navy selected methods of evaluating the data that supported its goal of increasing Growler operations. The Navy did this at the expense of the public and the environment, turning a blind eye to data that would not support this intended result. Or, to borrow the words of noted sports analyst Vin Scully, the Navy appears to have used certain statistics “much like a drunk uses a lamppost: for support, not illumination.”
When reporting on the environmental impact of Growler fuel emissions, the Navy underreported the true amount of Growler fuel emissions and failed to disclose that it was not including any emissions for flights above 3,000 feet. Even after receiving a comment on the issue, the Navy failed to disclose its underreporting and dismissed the issue with broad generalities.
With respect to the impact of this increased operation on childhood learning, the Navy acknowledged numerous studies that concluded that aircraft noise would measurably impact learning but then arbitrarily concluded that because it could not quantify exactly how the increased operations would interfere with childhood learning, no further analysis was necessary.
As to the impact of increased jet noise on various bird species, the Navy repeatedly stated that increased noise would have species-specific impacts on the many bird species in the affected area but then failed to conduct a species-specific analysis to determine if some species would be more affected than others. Instead, the Navy simply concluded that certain species were not adversely affected and then extrapolated that all the other species would not be affected, either.
Regarding evaluating reasonable alternatives to the Growler expansion at NASWI, which the Navy was required to do, the Navy rejected moving the Growler operations to El Centro, California out of hand, summarily concluding that such a move would cost too much and that moving the operation to that location would have its own environmental challenges. The Navy's cursory rationale was arbitrary and capricious and does not provide a valid basis to reject the El Centro alternative.
For these reasons, the Court recommends that the District Court find the FEIS violated the NEPA and grant all summary judgment motions in part and deny them in part. Dkts. 87, 88, 92. Also, the Court grants plaintiffs leave to submit extra record evidence to address certain issues. Dkt. 85. Assuming the District Court follows this recommendation, it should order supplemental briefing regarding the appropriate remedy for the NEPA violations described herein.
NASWI operations take place on Whidbey Island, which is nestled within the Island County portion of the Salish Sea. Approximately 80,000 people live in Island County (including on Whidbey Island), and approximately another 121,000 people live in nearby Skagit County. See GRR 150511 (2016 figures). The area around NASWI is predominantly rural (GRR 150397), and Island County values its “rural character and natural beauty[.]” GRR 150407 (quotation marks omitted).
Whidbey Island is in a region of Puget Sound that has significant environmental resources. The San Juan Islands National Wildlife Refuge and five other important bird areas are within the action area for increased Growler operations. GRR 150473, 150476. The Refuge is a mere six miles from Ault Field and protects colonies of nesting seabirds, including black oystercatchers and pigeon guillemots. GRR 150476. The tufted puffin-a State-listed endangered species-lives in a portion of the affected area. See GRR 151276. All in all, approximately 230 migratory bird species occur annually within the FEIS's study area. GRR 150470.
Whidbey Island is also home to important historic areas, including the Ebey's Landing National Historic Reserve (“Ebey's Reserve”) and the Central Whidbey Island Historic District (the “Central Historic District”). GRR 151216, 151250. Ebey's Reserve-federally protected since 1978-preserves an area with an unbroken historic record from nineteenth century exploration and settlement in Puget Sound to the present. GRR 151216. A significant portion of OLF Coupeville-the airfield with the greatest Growler expansion-lies within the boundaries of Ebey's Reserve. See GRR 160140. Ebey's Reserve's boundaries also coincide with the Central Historic District (nominated to the National Register of Historic Places in 1973), which contains one of the largest intact collections of nineteenth century residential and commercial structures in rural Washington State. GRR 164965-66.
The Navy has operated NASWI on Whidbey Island since 1942. GRR 150433; see also GRR 150435 (OLF Coupeville constructed in 1944). Ault Field, the main NASWI air station, is located near the city of Oak Harbor on Whidbey Island, and OLF Coupeville, dedicated primarily to Field Carrier Landing Practice (“FCLP”), is located approximately ten miles south. GRR 150141. Jet aircraft began operating at NASWI in the 1950s, and by 1971, NASWI was the home base for the Navy's tactical electronic warfare squadrons. GRR 150433. Since 1967, the Navy has continuously used OLF Coupeville for FCLP, with activity levels varying. GRR 150435.
According to the Navy, FCLP is an essential part of operations at NASWI that Navy pilots must perform in order to maintain their qualifications for aircraft carrier landings. GRR 150213. FCLP is similar to a “touch and go.” See GRR 150328 (). A training typically takes approximately 45 minutes, with three to five aircraft participating in the training and remaining within 800 feet of the ground. GRR 150213, 150328. Concentrated periods of high-tempo operations precede periods of little to no activity. GRR 150213.
Residents near OLF Coupeville assert that these low-flying training activities make being outdoors “unbearable,” render even indoor conversations inaudible, and cause shaking and vibration, with one resident comparing the vibration caused by flyovers to shaking “like there's an earthquake.” See GRR 151712, 151817, 152009. COER cites a noise study in which its expert concluded that sound exposure from Growler flyovers at various points on Whidbey Island exceeded 100 decibels-the point at which continuous exposure for more than 15 minutes affects hearing. See GRR 60527, 60532. COER's expert concluded that Growler flyovers sometimes approached 120 decibels (see GRR 60527), and COER asserts that the Navy itself forbids personnel from unprotected exposure to noise over 115 decibels. GRR 113628.
Operations at OLF Coupeville have accordingly been a font of litigation against the Navy. In 1992, Whidbey Island residents who owned property around OLF Coupeville brought suit against the Navy for taking their property in violation of the Fifth Amendment, based on the amount of noise that FCLP generated. See Argent v. United States, 124 F.3d 1277, 1279 (Fed. Cir. 1997). In 2008, the Navy transitioned from “Prowler” to “Growler” aircraft, and in 2013, COER brought suit against the Navy, claiming that the Navy should have prepared an environmental impact statement (“EIS”) related to the change. See COER v. U.S. Dep't of the Navy, 122 F.Supp.3d 1068, 1072 (W.D. Wash. 2015). According to opponents of the increase, the Growlers are even noisier than the Prowlers. GRR 151216.
As part of the 2013 lawsuit, the Navy agreed to prepare an EIS regarding activities at NASWI, although it stated that it would be evaluating the effects not only of existing Growler operations, but of adding additional Growler aircraft. See COER, 122 F.Supp.3d at 1076. That EIS forms the basis for this lawsuit.
In November 2016, the Navy released the draft EIS and solicited comments and responses from the public. See GRR 150142. After reviewing thousands of comments, the Navy prepared the FEIS. See GRR 167643-44.
The FEIS, released in September 2018, included a detailed analysis of three alternative...
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