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Zbitnoff v. City of Winooski

United States District Court, D. Vermont

August 10, 2016

IGOR ZBITNOFF, EILEEN ANDREOLI, JEFFREY FROST, RICHARD JOSEPH, JULIET BETH BUCK, RAY GONDA, and STOP THE F-35 COALITION, Plaintiffs,
v.
CITY OF WINOOSKI, Intervenor Plaintiff,
v.
DEBORAH LEE JAMES, Secretary of the Air Force, Defendant.

          DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT (DOCS. 42, 45, 54)

          GEOFFREY W. CRAWFORD, JUDGE.

         In 1993, the United States Air Force started work on the development of a "next generation" single-seat fighter plane to replace the F-16, the A-10, and other aircraft. (AR 00010505, Final Environmental Impact Statement at 1-3.)[1] The goal was to design a single plane which could be altered to meet the needs of different branches of the military. Following a competition, Lockheed-Martin was selected as the manufacturer. Development of the plane known as the F-35A Lightning II ("F-35") began in earnest in 2001.[2]The F-35 is now in the early stages of production and deployment in the United States and in some ten other countries which are also purchasing it.

         The Burlington Air Guard Station has been in operation at its present location on the grounds of the Burlington International Airport since 1946. Over the years it has housed a variety of military aircraft. (AR 00010720, EIS at BR 4-94.) The base is currently home to eighteen F-16 fighter planes, and is located in South Burlington, Vermont. The Air Guard station is separated from the civilian airport by runways which it shares with general aviation and commercial aircraft. The Vermont Air National Guard ("VANG") plans to replace the aging F-16 fleet with new F-35 aircraft. The Air Force has selected the Burlington station as one of five locations for the initial basing of the F-35.

         In June 2014, Plaintiffs[3] filed this suit against Air Force Secretary Deborah Lee James, alleging that, in preparing the EIS concerning the decision about where to base the F-35 aircraft, the Air Force failed to conduct the "hard look" required under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-370m-12. (See Doc. 1.) The City of Winooski joined the suit as an intervenor-plaintiff (Doc. 23.) All parties have filed motions for partial summary judgment. (See Docs. 42, 45, 54.) The City of South Burlington, as amicus curiae, has also filed a Memorandum in Limited Support of Plaintiffs' Motions for Summary Judgment. (Doc. 70.) The Greater Burlington Industrial Corporation, as amicus curiae, filed a memorandum opposing both Plaintiffs' and City of Winooski's motions for summary judgment. (Doc. 53.) The court heard argument on the motions on July 5, 2016, at which time the motions were taken under advisement.

         SCOPE AND PREPARATION OF THE EIS

         This case began on December 30, 2009, when the Air Force, Air Combat Command, and Air National Guard published a notice in the Federal Register of the agencies' intent to prepare an EIS in order "to assess the potential environmental impacts of establishing operational F-35 Joint Strike Fighter (JSF) aircraft at one or more existing Air Force installations within the continental United States." (AR 00000001.) The notice identified the Burlington Air Guard Station as one of five proposed locations. The notice announced public meetings concerning the scope of the EIS in the affected communities, including a meeting in Winooski, Vermont.

         In August 2010, the Air Force released a preliminary draft of the EIS. Successive drafts and revisions followed until the final EIS issued in August 2013. (AR 00009516.)

         The EIS is an extensive document which covers a large number of environmental concerns and issues. These include the construction of new hangar facilities, effects on traffic, noise from aircraft operations, contamination of the atmosphere and the soil, automobile traffic, and a host of other potential impacts. Most of the issues addressed in the EIS are irrelevant to this case. Plaintiffs have identified six areas in which they allege the EIS fails to give sufficient consideration to the environmental consequences of siting the F-35s in Burlington. The court will consider each claim separately. Before reaching these issues, however, it is necessary to discuss the nature of the review that the court is required to perform under NEPA.

         NEPA REVIEW

         In 1970, President Nixon signed NEPA into law. See Presidential Statement on Signing the National Environmental Policy Act of 1969, 6 Weekly Comp. Pres. Doc. 11-13 (Jan. 1, 1970). Unlike substantive protective measures such as the Clean Air Act, 42 U.S.C. §§ 7401- 7671q, or the Clean Water Act, 33 U.S.C. §§ 1251-1388, which authorize the Environmental Protection Agency to set standards for emissions and discharges, NEPA is concerned with methodology. It neither contains nor authorizes substantive limits on governmental activity. Instead, it requires the preparation of an EIS by any federal agency that intends to take action which has a significant effect on the environment. See 42 U.S.C. § 4332(2)(C). Specifically, NEPA requires that, "to the fullest extent possible":

all agencies of the Federal Government shall. . . 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 it be implemented.

Id. More concrete guidance about the nature and scope of an EIS is provided by rules promulgated by the Council on Environmental Quality ("CEQ"). These appear at 40 C.F.R.§§ 1500.1-1518.4.

         NEPA contains no private cause of action or enforcement mechanism. Instead, the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, provides the same private equitable remedy for enforcement of NEPA as for other federal legislation. Through the vehicle of review under the APA, the courts have authority to determine two fundamental issues under NEPA:

a. Did the federal agency prepare an EIS which takes a "hard look" at the environmental consequences of its proposed action? See Kleppe v. Sierra Club, 427 390 (1976).
b. Does the agency's decision to proceed following a review of the environmental consequences violate the prohibition within the APA against actions which are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law? See 5 U.S.C. §706.

         It is most commonly through the first requirement-the "hard look" by an agency into its own actions-that NEPA achieves the "action-forcing procedure, " which protects the environment by requiring the collection and public release of detailed information about likely environmental consequences of proposed action. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989). NEPA embodies a legislative judgment-at once pragmatic and optimistic-that governmental action will protect the environment if decision-makers within the executive branch are required to address environmental issues in a public setting through preparation of an EIS.

         The role of the courts in enforcing the requirements of NEPA is limited and deferential. Judges are not authorized to substitute their own judgment about the merits of the proposed action. The appropriate inquiry is into method, not outcome, and the agency's final decision about the risks, costs, and benefits of a particular cause of action is not lightly overturned. As this case demonstrates, the force and impact of NEPA are derived from the requirement of a serious and complete inquiry into the environmental consequences of a proposed action.

         Judicial review in the context of NEPA is generally confined to the administrative record compiled by the agency when it made the decision at issue. See Vt. Pub. Interest Research Grp. v. U.S. Fish & Wildlife Serv., 247 F.Supp.2d 495, 514 (D. Vt. 2002). Such review requires a close examination of the EIS and its supporting documents to answer the questions of whether the EIS was sufficiently searching and detailed in its consideration of environmental consequences. Additionally, the reviewing court must consider whether the agency action- considered in the light of the environmental concerns raised by the EIS-is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" as prohibited by the APA. 5 U.S.C. § 706(2)(A).

         Summary judgment is almost always the procedural rule through which these legal determinations can be made. Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When addressing cross-motions for summary judgment, the court "evaluate[s] each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Byrne v. Rutledge, 623 F.3d 46, 53 (2d Cir. 2010)).

         With these general observations and standards in mind, the court turns to the specific objections to the EIS raised by Plaintiffs.

         COUNTS ONE AND THREE

         CONSIDERATION OF IMPACT OF MEASURES TAKEN TO MITIGATE AIRCRAFT NOISE

         All jet aircraft are loud and military jets are particularly so. The leadership at VANG has engaged in efforts to reduce the impact of noise on the surrounding community. These efforts have taken the form of operational restrictions on take-offs, time and frequency of flights, the use of flight simulators for training, and other efforts to mitigate the thunder of the engines of aircraft passing over the densely settled neighborhoods of Winooski and South Burlington.

         In addition to training flights by the F-16 squadron, Burlington International Airport is used by multiple airlines, chartered planes, and private aircraft. There are currently 97, 393 civilian flights per year. F-16 flights number 8, 099 per year. The F-35 will fly 5, 486 times per year. There are also 6, 264 flights by other military aircraft which are passing through but are not based in Burlington. (AR 00010646, EIS at BR 4-20.)

         Efforts to reduce the effect of airport sound on residents have taken a dramatic turn in South Burlington. Commencing in 1992, the City of Burlington-which owns and operates the airport through a city commission-has bought and demolished homes in a zone close to the runways. This program is authorized and funded by the Federal Aviation Administration ("FAA"). It has resulted in the removal of 139 homes built in the years before the airport became as active as it is today. This program is known as the Part 150 program.[4] It is run by the City of Burlington, as owner of the airport with oversight and funding from the FAA.

         The parties agree that the F-35 aircraft is a louder aircraft than the F-16 aircraft presently operating from the Burlington airport. The F-35 is larger and more powerful. The EIS states that "the F-35 A would generate generally higher noise levels than the F-16 aircraft it is replacing except in afterburner take-off." (AR 00010649, EIS at BR 4-23.) It is undisputed that the replacement of eighteen F-16 aircraft with eighteen F-35 aircraft will increase the area and the number of people affected by high levels of noise in the vicinity of the Burlington airport.

         The principal criticism leveled by Plaintiffs against the EIS regarding noise is the claim that Defendant failed to give sufficient consideration to mitigation measures directed at reducing the impact of noise, especially as it will affect Winooski and South Burlington. Plaintiffs draw attention to the purchase and razing of 139 homes in South Burlington in neighborhoods adjacent to the airport.

         In response, Defendant points out that neither the Air Force nor VANG has ever been involved in the Part 150 program. The EIS notes the existence of the program which, Defendant says, is all that is required.

         Before reaching the specific issue in dispute, it is necessary to review the treatment of aircraft noise in the EIS.

         In Chapter 3, the EIS opens the consideration of the environmental impact of noise with a discussion of the ways in which noise is measured and assessed. (See AR 00010576, EIS at 3-6.) Noise is defined as unwanted sound. Like any sound, it can be measured in decibels (dB) with zero being the limit of human perception. Normal human speech registers at 60 dB. People typically experience discomfort within their ears at 120 dB. In order to replicate the experience of a human being (in contrast to, say, dogs, which can hear sounds at a wider range of frequencies), decibels are typically measured on a scale which begins and ends at the frequency limits of human hearing. This scale is described as dBA.[5]

         In addition to volume, noise must be evaluated on the basis of duration and frequency. Noise at 60 dB-the sound level of conversation-might not make the ears ring, but few would wish to have it present in their home day and night. Similarly, a fire station siren such as the 8:50 a.m. and p.m. siren which resonates over the City of Rutland in a twice-daily test is accepted by residents (and loved by some) despite its volume because it is short in duration and relatively infrequent.

         The EIS adopts an averaging process for measuring the duration, frequency, and volume of noise generated by aircraft operations. (See AR 00010577, EIS at 3-7.) The methodology described in Chapter 3 of the EIS requires a measurement of the "sound exposure level" ("SEL") for a flight overhead. The SEL includes the total exposure to sound over the duration of the audible overflight of an aircraft. The SEL can then be incorporated into a Day-Night Average Sound Level ("DNL"), which permits the comparison of the noise of one activity with that of others. The DNL is the standard form of noise measurement employed by the FAA, the United States Department of Housing and Urban Development, the Department of Defense, and other federal agencies.

         The EIS adopts 65 dB DNL as the level of noise at which most people will begin to experience irritation, noting:

Most people are exposed to sound levels of 50 to 65 dB DNL or higher on a daily basis. Research has indicated that about 87 percent of the population is not highly annoyed by outdoor sound levels below 65 dB DNL (Federal Interagency Committee on Urban Noise [FICUN] 1980). Therefore, the 65 dB DNL noise level is typically used to help determine compatibility of military aircraft operations with local land use, particularly for land use associated with airfields.

(AR 00010578, EIS at 3-8.) Noise above 65 dB DNL level is unwelcome, and the rate of irritation or undesirability increases more rapidly than a straight arithmetic projection. An increase of 15 dB DNL would be a 23 percent increase over the baseline of 65 dB, but a measure of 80 dB DNL is experienced as far more annoying than a simple 23 percent increase. The EIS acknowledges that ...


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