United States District Court, D. Vermont
IGOR ZBITNOFF, EILEEN ANDREOLI, JEFFREY FROST, RICHARD JOSEPH, JULIET BETH BUCK, RAY GONDA, and STOP THE F-35 COALITION, Plaintiffs,
CITY OF WINOOSKI, Intervenor Plaintiff,
DEBORAH LEE JAMES, Secretary of the Air Force, Defendant.
DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT (DOCS.
42, 45, 54)
GEOFFREY W. CRAWFORD, JUDGE.
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.) 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.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.
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.
2014, Plaintiffs 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.
AND PREPARATION OF THE EIS
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,
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.)
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.
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
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.
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
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
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.
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.
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
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. §
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)).
these general observations and standards in mind, the court
turns to the specific objections to the EIS raised by
ONE AND THREE
OF IMPACT OF MEASURES TAKEN TO MITIGATE AIRCRAFT
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.
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
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. It is run by the City of Burlington, as
owner of the airport with oversight and funding from the FAA.
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.
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.
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.
reaching the specific issue in dispute, it is necessary to
review the treatment of aircraft noise in the EIS.
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.
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.
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
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 ...